Did the Employee Have an Accident Under Louisiana Workers Compensation?
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.
What Is Considered an Accident in Workers Compensation?
In Louisiana workers compensation, an “accident” is legally defined as “an unexpected or unforeseen event happening suddenly or violently, with or without human fault, and producing at the time objective symptoms of an injury, which is more than simply a gradual deterioration or progressive degeneration.”
So another words, for there to be an accident in workers compensation, there technically should be:
- An unexpected or unforeseen event;
- Happening suddenly or violently; and
- Producing symptoms of an injury.
However, the Louisiana Office of Workers Compensation courts do not necessarily always stick to these technical requirements.
In fact, regarding the meaning of an “accident,” the Louisiana courts have gone as far as to say that when the performance of the usual duties of an employee causes or contributes to an injury, then the requirements for an accident have been met. And again, these requirements do not apply to occupational disease and other types of work-related illnesses.
Additionally, under Louisiana law, workers compensation laws are “liberally construed” to find coverage for an injured worker. Essentially, that means that the injured worker is given many benefits of the doubt, which is an excellent thing for the worker.
AGGRAVATIONS OF DEGENERATIVE CONDITIONS
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.
MUST THE ACCIDENT BE AN ACTUAL EVENT?
The Louisiana Workers Compensation Act, which defines the term “accident,” includes the requirement that there be an “unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently …”
However, Louisiana Courts have found that extraordinary physical stress and strain are not essential to the definition of a disabling accident.
Instead, the Courts have held that the requirements for an accident have been met when the performance of the usual and customary duties of a workman cause or contribute to a physical breakdown.
Therefore, the required “injury by accident” has thus been found to have occurred in instances of heart attack, cerebral hemorrhage, hernia, abscessed lung, spontaneous pneumothorax, ruptured intervertebral disc, rupture of an abdominal tumor, laceration of the internal semilunar cartilage of the knee (football knee), osteomyelitis, rheumatoid arthritis, or hepatitis, even when these occur during the employee’s regular work in a regular way, if a causal relationship between working conditions and disability can be found.
There need be no disabling event which is different either in kind or intensity from the regular working experiences of the claimant.
Nevertheless, while an accident can be found to exist when heavy lifting or strenuous effort cause or contribute to a physical breakdown, the employee is still required to “identify the event marking the time when one can identify an injury.”
MUST THE ACCIDENT BE UNEXPECTED OR UNFORESEEN?
Though the Louisiana Workers Compensation Act technically states that the employee’s accident must have been unusual or unexpected, Louisiana OWC courts have minimized this requirement, and have held that an employee simply needs to show some causal link between the employment and the disabling event.
In other words, the employee simply needs to show that something about the employment caused the injury.
Many times, the workers compensation insurance company will claim that an injury should not be covered because the accident was not “unexpected” or “unforeseen.” This happens a lot, particularly in cases where there is some weakness in the employee’s physical constitution makes him susceptible to injury by ordinary routine events, which would not affect the typical worker.
But of course, the disability of such a worker is not “unexpected” or “unforeseen” but under the circumstances entirely predictable because of his pre-existing condition. And Louisiana courts have regularly found that the disabling event need not be different in kind or intensity from the regular work of the employee.
So any argument by the workers compensation insurance company that an injury should not be covered because the accident was not unexpected or unforeseen is weak at best.
MUST THE ACCIDENT HAPPEN SUDDENLY OR VIOLENTLY?
The Louisiana Workers Compensation Act states that an event that results in injury or death cannot be classified under the statute as an “accident” unless it happens “suddenly or violently.”
However, it reality, Louisiana courts have been very flexible in applying this requirement, to the point where they almost do not even consider it.
The most straightforward incidents of violence, of course, are the inflictions of traumatic blows, or other occasions on which visible force from the outside is applied to the person. So long as the application of force produces an injury, it is immaterial that the blow or impact was gentle and would not be expected to bring about any injury.
But in some cases, the almost imperceptible force has satisfied the requirement of a “violent” incident.
For example, Louisiana courts have awarded compensation for injuries to the eye where minute particles, or even dust, have produced blindness or impairment of vision. Also, the inhalation of gas, fumes, lint, or dust, which produces asphyxiation, lead poisoning or pulmonary sickness, has been regarded as an event of “violent” character. And last, Louisiana courts have awarded compensation when there has been contact of the skin with poison ivy or other harmful substances.
Louisiana workers compensation courts have also held that quick movement, a strain or exertion can supply the necessary violence, so long as there is proof of the event. It is unnecessary that the strain is either unusual or that it be intense enough to produce an injury in a normal or average person.
For these reasons, Louisiana workers compensation generally (but not always) cover injuries such as hernias, heart attacks, strokes, and back ailments.
What Evidence Is Needed to Prove that An Accident Occurred Under Louisiana Workers Compensation?
When determining whether an injury-causing accident occurred, the employee’s testimony is afforded great weight if there are no contradictory circumstances and evidence. This generally means that if there’s no evidence (including testimony) showing that the accident did not cause the injury, then the courts will usually believe the employee if the employee says that the accident did cause the injury.
An employee’s testimony alone may be enough to prove that an “accident” occurred, provided two elements are satisfied:
- No other evidence discredits or casts serious doubt upon the worker’s version of the incident; and
- The worker’s testimony is corroborated (or supported) by the circumstances following the alleged incident.
CORROBORATING (OR SUPPORTING) CIRCUMSTANCES
Concerning the corroborating circumstances (or circumstances which back-up the employee’s statements), the courts will consider:
- Late reporting of the accident or injury by the employee;
- Testimony of the employee’s supervisors and co-workers;
- Testimony of the employee’s family and friends;
- Medical evidence;
- Continuing to work by the employee; and
- Prior injuries of the employee.
Concerning the late reporting of the accident or injury by the employee, an employee’s delay in reporting an injury can show the employee’s initial unawareness of the seriousness of the injury, rather than cast doubt on the employee’s believability about whether the accident occurred.
Also, concerning corroborating medical evidence, discrepancies or inconsistencies in initial medical reports do not necessarily mean that the employee will not win on his or her claim. Instead, Louisiana courts will want to know if the injured employee has a valid explanation for the discrepancies or inconsistencies.
The Louisiana Statute on Accidents in Louisiana Workers Compensation
The primary Louisiana statute on accidents is La. R.S. 23:1021, which reads as follows:
§1021. Terms defined
As used in this Chapter, unless the context clearly indicates otherwise, the following terms shall be given the meaning ascribed to them in this Section:
(1) “Accident” means an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.
(2) “Brother” and “sister” includes step-brothers and step-sisters, and brothers and sisters by adoption.
(3) “Child” or “children” covers only children born of marriage, step-children, posthumous children, adopted children, and children born outside of marriage who have been acknowledged under the provisions of the Civil Code.
(4) “Dependent” means the person or persons to whom, under the provisions of Part II of this Chapter, compensation shall be paid upon the death of the injured employee.
(5) “Assistant secretary” means the assistant secretary of the office of workers compensation administration.
(6) “Health care provider” means a hospital, a person, corporation, facility, or institution licensed by the state to provide health care or professional services as a physician, hospital, dentist, registered or licensed practical nurse, pharmacist, optometrist, podiatrist, chiropractor, physical therapist, occupational therapist, psychologist, graduate social worker or licensed clinical social worker, psychiatrist, or licensed professional counselor, and any officer, employee, or agent thereby acting in the course and scope of his employment.
(7) “Independent contractor” means any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter. The operation of a truck tractor or truck tractor trailer, including fueling, driving, connecting and disconnecting electrical lines and air hoses, hooking and unhooking trailers, and vehicle inspections are not manual labor within the meaning of this Chapter.
(8)(a) “Injury” and “personal injuries” include only injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom. These terms shall in no case be construed to include any other form of disease or derangement, however caused or contracted.
(b) Mental injury caused by mental stress. Mental injury or illness resulting from work-related stress shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter, unless the mental injury was the result of a sudden, unexpected, and extraordinary stress related to the employment and is demonstrated by clear and convincing evidence.
(c) Mental injury caused by physical injury. A mental injury or illness caused by a physical injury to the employee’s body shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence.
(d) No mental injury or illness shall be compensable under either Subparagraph (b) or (c) unless the mental injury or illness is diagnosed by a licensed psychiatrist or psychologist and the diagnosis of the condition meets the criteria as established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders presented by the American Psychiatric Association.
(e) Heart-related or perivascular injuries. A heart-related or perivascular injury, illness, or death shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence that:
(i) The physical work stress was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation, and
(ii) The physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of the heart-related or perivascular injury, illness, or death.
(9) “Office” means the office of workers compensation administration established pursuant to R.S. 23:1291.
(10) “Owner operator” means a person who provides trucking transportation services under written contract to a common carrier, contract carrier, or exempt haulers which transportation services include the lease of equipment or a driver to the common carrier, contract carrier, or exempt hauler. An owner operator, and the drivers provided by an owner operator, are not employees of any such common carrier or exempt hauler for the purposes of this Chapter if the owner operator has entered into a written agreement with the carrier or hauler that evidences a relationship in which the owner operator identifies itself as an independent contractor. For purposes of this Chapter, owner operator does not include an individual driver who purchases his equipment from the carrier or hauler, and then directly leases the equipment back to the carrier or hauler with the purchasing driver.
(11) “Part-time employee” means an employee who as a condition of his hiring knowingly accepts employment that (a) customarily provides for less than forty hours per work week, and (b) that is classified by the employer as a part-time position.
(12) “Payor” means the entity responsible, whether by law or contract, for the payment of benefits incurred by a claimant as a result of a work related injury.
(13) “Wages” means average weekly wage at the time of the accident. The average weekly wage shall be determined as follows:
(a) Hourly wages.
(i) If the employee is paid on an hourly basis and the employee is employed for forty hours or more, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater; or
(ii) If the employee is paid on an hourly basis and the employee was offered employment for forty hours or more but regularly, and at his own discretion, works less than forty hours per week for whatever reason, then, the average of his total earnings per week for the four full weeks preceding the date of the accident; or
(iii) If the employee is paid on an hourly basis and the employee is a part-time employee, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the injury.
(iv) A part-time employee, as defined in R.S. 23:1021(9) and who is employed by two or more different employers in two or more successive employments, shall be entitled to receive benefits as follows:
(aa) If an employee is employed by two or more different employers in two or more successive employments and the employee incurs a compensable injury under the provisions of this Chapter in one of the employments, the employer in whose service the employee was injured shall pay the benefits due the employee as provided in this Chapter.
(bb) If the employee is a part-time employee in one of the successive employments, is injured in that employment, but as a result of the injury also incurs loss of income from other successive employments, that employee shall be entitled to benefits computed by determining wages under the provisions of this Subsection using his hourly rate in employment at the time of injury and using the total hours worked for all employers of the part-time employee, but not to exceed his average, actual weekly hours worked or forty hours weekly, whichever is less.
(v) For an employee in seasonal employment, his annual income divided by fifty-two.
(aa) For purposes of this Subparagraph, seasonal employment shall be any employment customarily operating only during regularly recurring periods of less than forty-four weeks annually.
(bb) If the employee was not engaged in the seasonal employment more than one year prior to the accident, his annual income shall be the average annual income of other employees of the same or most similar class working in the same or most similar employment for the same employer or, in the event that the employee was the only individual engaged in that specific employment, then his annual income shall be the average annual income of other employees of the same or most similar class working for a neighboring employer engaged in the same or similar employment.
(b) Monthly wages. If the employee is paid on a monthly basis, his monthly salary multiplied by twelve then divided by fifty-two.
(c) Annual wages. If the employee is employed at an annual salary, his annual salary divided by fifty-two.
(d) Other wages. If the employee is employed on a unit, piecework, commission, or other basis, his gross earnings from the employer for the twenty-six week period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said twenty-six week period and multiplied by the average number of days worked per week; however, if such an employee has worked for the employer for less than a twenty-six week period immediately preceding the accident, his gross earnings from the employer for the period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said period and multiplied by the average number of days worked per week.
(e) Exceptions. For municipal police officers, additional compensation paid by the state pursuant to R.S. 40:1667.3 shall not be included in the calculation and computation of total salary or average weekly wage to the extent such officer continues to receive such additional compensation during the period of his disability.
(f) Income tax. In the determination of “wages” and the average weekly wage at the time of the accident, no amount shall be included for any benefit or form of compensation which is not taxable to an employee for federal income tax purposes; however, any amount withheld by the employer to fund any nontaxable or tax-deferred benefit provided by the employer and which was elected by the employee in lieu of taxable earnings shall be included in the calculation of the employee’s wage and average weekly wage including but not limited to any amount withheld by the employer to fund any health insurance benefit provided by the employer and which was elected by the employee in lieu of taxable earnings shall be included in the calculation of the employee’s wage and average weekly wage.
(g) Date of accident. In occupational disease claims the date of the accident for purposes of determining the employee’s average weekly wage shall be the date of the employee’s last employment with the employer from whom benefits are claimed or the date of his last injurious exposure to conditions in his employment, whichever date occurs later.
Amended by Acts 1968, Ex. Sess., No. 25, §1; Acts 1975, No. 583, §1, eff. Sept. 1, 1975; Acts 1983, 1st Ex. Sess., No. 1, §§1, 6; eff. July 1, 1983; Acts 1987, No. 396, §1; Acts 1987, No. 494, §1; Acts 1988, No. 938, §1, eff. Jan. 1, 1989, and July 1, 1989; Acts 1989, No. 260, §1, eff. Jan. 1, 1990; Acts 1989, No. 454, §1, eff. Jan. 1, 1990; Acts 1991, No. 468, §1; Acts 1991, No. 565, §1; Acts 1993, No. 928, §2, eff. June 25, 1993; Acts 1995, No. 1137, §1, eff. June 29, 1995; Acts 1997, No. 423, §1; Acts 1997, No. 536, §1; Acts 1997, No. 1172, §4, eff. June 30, 1997; Acts 1999, No. 751, §1; Acts 1999, No. 1309, §5, eff. Jan. 1, 2000; Acts 2001, No. 288, §2; Acts 2001, No. 486, §2, eff. June 21, 2001; Acts 2001, No. 546, §1; Acts 2001, No. 1014, §§1 and 2, eff. June 27, 2001; Acts 2004, No. 26, §10; Acts 2004, No. 188, §1, eff. June 10, 2004; Acts 2004, No. 561, §1; Acts 2013, No. 337, §1; Acts 2014, No. 158, §§3 and 7.