Do I Have a Louisiana Workers Compensation Claim?

City Park, New Orleans, Louisiana

Most Injured Employees Are Covered by Workers Compensation in Louisiana

Louisiana law requires employers to provide workers compensation insurance coverage, even if they have only one employee. 

In general, an employee in Louisiana is covered for workers compensation purposes from the day they start on a job.  So even if an employee is injured during his or her training period, the employee is entitled to full workers compensation benefits.  The injured employee would still have all his or her medical bills paid, and his or her lost wages would simply be calculated based on the expected earnings for his or her position.

Employees in Louisiana are covered under workers compensation irregardless if they are full-time, part-time, seasonal workers or minors.  So part-time employees will have all their medical bills paid.  Since lost wages in workers compensation are calculated based on the employee's earnings, income replacement benefits for part-time employees will be affected by the number of hours the employee typically works per week.

Workers Compensation Benefits in Louisiana

Louisiana workers compensation covers injuries that are a result of an on-the-job accident, as well as occupational diseases and illness related to the employment.  

Louisiana workers compensation covers some mental and emotional injuries, but only when these mental and emotional injuries are connected to a serious accident or traumatic event that happened at work.

Additionally, pre-existing conditions may be covered if the condition was aggravated by a work-related accident.

Under Louisiana workers compensation, injured employees are entitled to the following benefits:

    • Medical Benefits;
    • Indemnity (Lost Wages) Benefits;
    • Vocational Rehabilitation Benefits; and
    • Death Benefits.

Also, injured employees are entitled to a "mileage" reimbursement for transportation costs.

Did the Employee Have An Accident?

In order for an injured worker to recover workers compensation benefits in Louisiana, the employee must prove that a work-related accident occurred and that an injury was sustained.  

So basically, besides occupational disease and other types of work-related illnesses, there must have been a specific accident for an injured employee to recover under Louisiana workers compensation.

The employee must show that a work-related accident occurred by the legal standard of proof of preponderance of the evidence.  That simply means that the injured employee must show it is more likely than not likely that a work-related accident occurred.  In other words, being 51% sure is good enough.

Last, Louisiana workers compensation does not cover an injury or illness which is simply a gradual deterioration or progressive degeneration.  That means that degenerative conditions - such as degenerative disc disease - are not covered under Louisiana workers compensation. 

However, an aggravation of a degenerative condition - such as degenerative disc disease - is covered if there was a work-related accident which aggravated the degenerative condition. 

For example, if an employee has a pre-existing history of low back pain, but then that back pain suddenly changes or gets worse following some accident at work, then the employee should be able to recover under Louisiana workers compensation. 

Was There an Actual Injury?

An injury in Louisiana workers compensation cases is defined as a personal injury by accident arising out of in the course of employment.

In workers compensation cases, a disability is presumed to be the result of a work-related accident if, before the accident, the injured person was in good health, but beginning with the accident the symptoms of the disability appear and continue.  

But there should be medical evidence to show a reasonable possibility of a causal connection between the accident and the disability, or that the nature of the accident, when combined with other facts of the situation, appears to show a causal connection.  The phrase causal connection means simply that one thing caused another thing.

Moreover, the fact that an employee does not realize or diagnose the full extent of his or her injury immediately after an accident should not prevent hat employee from making a recovery under Louisiana workers compensation. 

What About Pre-existing Conditions In A Workers Compensation Claim?

Pre-existing conditions or disease or infirmity of an employee do not prevent a workers compensation claim if the work-related injury aggravated, accelerated, or combined with the disease or infirmity to produce the disability for which compensation is claimed.

When an employee proves that before the accident he or she had not shown any disabling symptoms, but that beginning with the accident the disabling symptoms appeared, and there is either medical or circumstantial evidence indicating a reasonable possibility of a causal connection between the accident and the disabling condition, then the employee's work injury is presumed to have been aggravated, accelerated, or combined with his pre-existing disease or infirmity to produce his disability. 

So again, it does not matter for an employee's workers compensation claim whether he or she had a pre-existing condition, so long as the accident aggravated the condition.  

The employer must take the employee as he finds him or her.  It the employee is frail or accident prone or has a pre-existing condition, that is the employer's problem, not the problem of the employee.

Were There Symptoms Before the Accident?

Therefore, in a Louisiana workers compensation pre-existing condition aggravation case, the critical factors to look for are:

    1. Whether the condition was asymptomatic prior to the alleged incident;
    2. The sudden onset of symptoms; and
    3. The ability to identify some instigating incident at or during work.

And also, in workers compensation cases, a disability is presumed to be the result of a work-related accident if, before the accident, the injured person was in good health, but beginning with the accident the symptoms of the disability appear and continue.  

But there should be medical evidence to show a reasonable possibility of a causal connection between the accident and the disability, or that the nature of the accident, when combined with other facts of the situation, appears to show a causal connection.  

The phrase causal connection means simply that one thing caused another thing.

So the bottom line of all this is: if an employee had preexisting back problems but no symptoms prior to his or her work-related accident, then that employee's back injuries should be covered under Louisiana workers compensation.

Mental and Emotional Injuries Can Be Covered by Workers Compensation in Louisiana

Louisiana workers compensation covers some mental and emotional injuries, but these injuries need to be connected to a serious accident or traumatic event that happened at work.

Such a covered mental injury could be a mental injury that was caused by mental stress, if the mental injury was the result of a sudden, unexpected, and extraordinary stress related to the employment.  Or the mental injury could be a mental injury caused by physical injury.  

Either way, the mental injury or illness must be diagnosed by a licensed psychiatrist or psychologist.  A licensed social worker or counselor is not sufficient to trigger benefits.  

So essentially, there are two types of "mental and emotional stress" claims: (1) mental or emotional injury caused solely by mental stress, and (2) mental or emotional injury caused by a physical injury or trauma.

Occupational Diseases Can Be Covered by Workers Compensation in Louisiana

Occupational diseases are diseases which are characteristic and peculiar to the employer's business.  

Occupational diseases are illnesses, not injuries caused by accidents.  

Common examples of occupational diseases include carpal tunnel syndrome, asbestosis and silicosis.  By comparison, common examples of injuries are broken bones, sprained ankles, and concussions.

In Louisiana, every employee who is disabled because of an occupational disease is entitled to the same compensation benefits that an employee would received if the employee were injured by a physical personal injury by accident arising out of and in the course of employment.  Also, every dependent of an employee whose death is caused by an occupational disease is entitled to the same compensation that a dependent of an employee whose death is caused by a physical personal injury by accident arising out of and in the course of employment.  

So basically, an employee get the same benefits, whether the employee has an occupational disease (such as carpal tunnel syndrome) or an actual injury (such as a broken wrist).

Under Louisiana workers compensation, there exists a presumption that an occupational disease that appears in the first 12 months of employment is not related to that employment.  That means that any occupational disease contracted by an employee while performing work for a particular employer in which he has been engaged for less than twelve months shall be presumed not to have been contracted in the course of and arising out of such employment.  

Since an occupational disease is generally considered to be one that is "characteristic of and peculiar to an employment," medical testimony (usually from a doctor) is typically required to prove such.

Also, to prove a claim of occupational disease, the employee must show a causal link between his work and the disease. That is, the employee must show that the job caused the disease.  Again, medical testimony (usually from a doctor) is typically required to prove that the job caused the disease.

The prescriptive period - or time limit in which a claim must be filed - is one year from the date that the disease has manifested itself, the employee learns he is disabled, and the employee knows or has reason to believe that the disease is related to his occupation.  

Again, one year from the date that:

    1. The disease manifested itself (or simply appeared);
    2. The employee is disabled from working as a result of the disease; and
    3. The employee knows or has reasonable grounds to believe that the disease is occupationally related.

All three requirements must be present for the one year time limit to start.  So the one year clock only starts ticking when the disease has appeared, the employee learns he is disabled, and the employee knows or has reason to believe that the disease is related to his occupation.  

Did the Accident Cause the Injury?

The employee in a workers compensation claim must prove that his or her disability was caused by the work-related accident. The employee must prove that his or her disability was caused by the work-related accident by a preponderance of the evidence, which simply means that it is more likely than not that the disability was caused by the work-related accident.

In fact, in order for the employee to recover worker compensation benefits, it must be determined that the employment somehow caused or contributed to the disability, but it is not necessary that the exact cause be found.

The Employee's Presumption of Causation

In Louisiana workers compensation cases, an employee's disability is presumed to have resulted from an accident, however, if before the accident the employee was in good health, but beginning with the accident the disability symptoms appear and remain.  

Also there must be sufficient medical evidence to show a reasonable possibility of causal connection between the accident and the disability, or that the nature of the accident, when combined with the other facts of the case, raises a natural inference of such a causal connection.

A causal connection simply means that one thing caused another thing.

Once the disabled employee establishes the presumption of a causal relationship, the party denying the existence of the presumed fact assumes both the burden of producing evidence and the burden of persuasion on the issue.  In other words, in order for the party denying the existence of the presumed causal relationship to prevail on the issue, that party (usually the insurance company) must produce evidence and persuade the judge that it is more probable than not that the work-injury did not accelerate, aggravate or combine with the preexisting disease or infirmity to produce his disability. 

How Does An Employee Prove that the Accident Caused the Injury?

The employee in a worker compensation proceeding must prove that the conditions under which the employee worked did in fact injure him or bring about his death. 

Proving that the accident caused the injury usually occurs in two stages. First, the facts must be established. For example: did the employee fall, or receive a blow, or perform heavy work at the time in question, or be exposed to heat or poisonous gases or substances?  

In most workers compensation cases, testimony by the employee, co-workers, and other witnesses to the actual accident or related facts is used in the first stage of the inquiry where the facts are assembled.

Second, once the facts have been assembled, the employee must demonstrate that there was a causal connection between the events on the job and the disabling injury (that the accident caused the injury). This process is difficult to define because the fact of causation can never be absolutely 100% determined and must depend on probabilities.  The question to be answered here is whether some employment event caused the employee to be disabled.  

In most workers compensation cases, medical testimony by doctors must be used at the second stage where the fact of causation is established.  Again, the employee will usually need his or her physician to testify or produce records that conclude that the accident caused the injury.  

In the Course and Scope of Employment

In order for an employee to be covered under Louisiana workers compensation, the employee's accident must “arise out of employment” and occur “in the course of employment.”  

The phrase “scope” of employment" is a simpler way of saying “arising out of the employment.”  Thus, instead of “arising out of" and “in the course of” employment,” it is often said that in workers compensation, the employee's accident must simply occur in the “course and scope of employment.” 

The "scope of the employment" (or “arising out of employment”) relates to the character or origin of the injury suffered by the employee and whether this injury was connected to the employment.  

This simply means that the workers compensation injury will not be covered unless it is related to the employment.  

Also, an injury occurs in the scope of the employment if the risk from which the injury resulted was greater for the employee than for a person not engaged in the employment. 

The “course of employment” means that the employee sustained an injury while actively engaged in the performance of his duties during work hours, either on the employer's premises or at other places where employment activities take the employee.  Thus, the important questions for the course of employment are:

    1. When did the accident happen?
    2. Where did did the accident happen?
    3. What was the employee doing when the accident happened?

Basically, if the employee suffered an accident during work hours, or while actually doing his or her job, or at the employee's place of employment, then in all likelihood, the employee will be covered by workers compensation.

In the Course of Employment

So again, if the employee suffers an accident during work hours, or while actually doing the duties of his or her job, or while at the employee's place of employment, then the employee will be covered by workers compensation, because the employee is clearly within the course of employment. 

But whether the employee is in the course of employment is not always so clear.  For example, what if the employee:

    1. Is injured traveling to or from work?
    2. Is injured at at dangerous place adjacent to the employer's premises?
    3. Is injured while using the employer's transportation?
    4. Is injured while moving between places of work?
    5. Is injured while traveling for work?
    6. Is injured on the employer's premises before or after working hours?
    7. Is injured during an authorized lunch hour or rest period?
    8. Is injured while standing by or doing recreational activities?
    9. Is performing personal errands for the employer?
    10. Is injured during an emergency or attempted rescue?
    11. Is injured while while violating instructions?
    12. Is injured while involved in horseplay or an assault, or a personal dispute?

Generally speaking, the employee is considered to be in the course of employment for a reasonable time both before and after work hours. 

If the employer requires the employee to participate in an activity outside of work hours or away from the employer's premises, then the employee will be considered in the course of employment.

Or if the employer derives substantial, direct benefit from an employee's activity, then employee will be considered in the course of employment. 

Also, accidents occurring either going to work from home or vice versa generally are not covered by workers compensation.  But travel in between places of work is covered by Louisiana workers compensation.

In short, many of these questionable scenario regarding the course of employment contain factual questions that need to be determined on a case-by-case basis.

But Louisiana law has provided general rules and guidelines and laws in order to answer these specific questions regarding particular course of employment scenarios. 

In the Scope of (or Arising Out of) Employment

So again, if the employee suffers an accident during work hours, or while actually doing the duties of his or her job, or while at the employee's place of employment, then the employee will be covered by workers compensation, because the employee is clearly within the course of employment. 

But is an employee who is injured during the course of her employment protected only against some accident risks and not against others?

In other words, is an employee covered under workers compensation if the employee is injured by lightning or a tornado, or assaulted by a stranger, or burned while lighting a cigarette, or breaks an arm while scuffling with a fellow worker?  

Louisiana courts have largely insisted that the risk that brought about the accident must bear some relationship to the nature of the employment.

Specifically, it ought to be good enough that the nature of the employment was such that the risk from which the injury resulted was greater for the employee than for a non-employee.

In other words, the employee's accident must be the result of some risk to which the employee is subjected in the course of his employment, and to which he would not have been subjected had he not been so employed.  

Are Independent Contractors Covered By Workers Compensation in Louisiana?

Independent contractors are not usually eligible for workers compensation benefits in Louisiana.  

This is because the Louisiana workers' compensation system exists for the purpose of compensating employees for injuries resulting from their employment. Workers compensation is therefore limited to those who are actually employees of the enterprise in question, or whose functions are those of employees.

Unfortunately, this means that independent contractors are not usually eligible for workers compensation benefits in Louisiana.  

In other words, if a genuine independent contractor suffers an injury while carrying out the contracted task, his own company should bear the loss caused by his injury, since compensation against the employer's enterprise is limited to his employees. In fact, many independent contractors are self-employed small business owners who do work for several or many businesses at the same time.

Of course distinctions between the employee and the independent contractor are seldom as easy as might be thought.

The distinction between employee and independent contractor status, for the purpose of workers' compensation benefits, is a factual determination to be decided on a case-by-case basis.

There are instances where subcontractors and some independent contractors can be found to be employees when they are involved in the pursuit of the employer's trade, business or occupation or when their job is found to include the performance of substantial manual labor.  

So it really does matter how an employee is classified - as either an employee or an independent contractor - and sadly employers often attempt to misclassify the worker in order to escape workers compensation liability.

Is the Injured Worker An Employee or An Independent Contractor?

As noted above, employees are eligible for Louisiana workers compensation while independent contractors are not usually eligible for workers compensation benefits in Louisiana.  

Typically, it is assumed that workers begin with an assumption that they are employees, and not independent contractors, unless there is particular evidence which shows otherwise. 

However, this presumption of employment status can be rebutted by either:

    1. Establishing that the services were not pursuant to any trade, business, or occupation, such as construction of one's private residence; or
    2. Establishing that the individual was performing services but was doing so as an independent contractor.

So who decides if you are an employee or an independent contractor?  Surprisingly, the employer cannot determine on its own if a worker is an employee or an independent contractor.  Instead, this classification is a legal determination, which will most likely be determined by a workers compensation judge, unless all the parties are in full agreement.

To determine whether an injured worker is an employee or an independent contractor, a fact-specific determination will often be made based on the specific circumstances surrounding the nature of the working relationship.

Typically, an employee:

    • Receives a salary or a fixed hourly rate;
    • Performs work on an ongoing basis;
    • Has taxes taken out of his or her paycheck;
    • Receives employer-provided benefits such as health insurance or a retirement plan; 
    • Has an exclusive working relationship with a single business;
    • Is provided with the tools and supplies required to do the job;
    • Is provided with training on how to perform the job; and
    • Has a supervisor who decides the specifics of the work to be done. 

In comparison, typically, an independent contractor:

    • Is paid per completion of a particular project, or on commission;
    • Performs work that is temporary in nature;
    • Does not have taxes taken out of his or her paycheck;
    • Does not receive employer-provided benefits such as health insurance or a retirement plan;
    • Regularly works with more than one business at a time;
    • Provides his or her own tools and supplies;
    • Does not need training because he or she already has the necessary skills to do the work; and
    • Works with little or no supervision. 

Also, in a workers' compensation claim, determining whether the worker is an employee or an independent contractor, Louisiana courts consider the following factors:

    1. If there is a valid contract between the parties;
    2. If the work being done is of an independent nature such that the contractor may employ non-exclusive means in accomplishing it;
    3. If the contract calls for specific piecework as a unit to be done according to the independent contractor's own methods without being subject to the control and direction of the principal, except as to the result of the services to be rendered;
    4. If there is a specific price for the overall undertaking; and
    5. If a specific time or duration is agreed upon and not subject to termination at the will of either side without liability for breach.

Last, the ability of a workers' compensation claimant to hire helpers and assistants is characteristic of an independent contractor. 

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