COMMON TYPES OF OCCUPATIONAL ILLNESSES AND DISEASES IN LOUISIANA WORKERS COMPENSATION
Occupational diseases are diseases that 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.
SAME WORKERS COMPENSATION BENEFITS AS WHERE THERE IS A PHYSICAL INJURY
In Louisiana, every employee who is disabled because of an occupational disease is entitled to the same workers 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.
So basically, an employee gets 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.
For occupational diseases, the date of the accident to be used for purposes of calculating the average weekly wage will be the date of last employment with the employer from whom benefits are sought, or the date of last injurious exposure, whichever occurs last.
Generally speaking, degenerative disc disease, arthritis, spinal stenosis, heart-related disease, and mental illness are not occupational diseases. Neither are hernias. However, carpal tunnel syndrome can be an occupational disease. Also, since thoracic outlet syndrome is akin to carpal tunnel, it to can qualify as an occupational disease.
CARPAL TUNNEL SYNDROME IN LOUISIANA WORKERS COMPENSATION
Carpal tunnel syndrome is specifically allowed for recovery within the definition of occupational disease.
In other words, if an employee suffers from carpal tunnel syndrome, the employee may be able to recover workers compensation benefits for carpal tunnel syndrome. It all depends on whether the employment caused the carpal tunnel syndrome.
Sometimes the causal relationship between the carpal tunnel syndrome and employment is fairly easily established, sometimes the causal relationship is somewhat more questionable but still proven, and sometimes the causal relationship is not proven, and thus compensation is denied for that reason.
In some cases, it has been recognized that the listing of carpal tunnel syndrome as an occupational disease does not exclude the possibility that it might have occurred as an “injury by accident” and might be covered for that reason. But again, this must be proven on a case by case basis under the particular facts of each case.
Also, in several cases, it has been held that thoracic outlet syndrome is similar to carpal tunnel syndrome and thus should be considered as within the listing of carpal tunnel syndrome as an occupational disease.
OCCUPATIONAL NOISE-INDUCED HEARING LOSS (NIHL) IN LOUISIANA WORKERS COMPENSATION
Under Louisiana law, occupational noise-induced hearing loss (NIHL) is considered an occupational disease.
Because the occupational noise-induced hearing loss is covered under Louisiana workers compensation, employers are now granted tort immunity to an employer sued by employees for compensatory damages for such hearing loss.
Louisiana courts have said that it wanted to achieve “more expansive and comprehensive coverage to include employment-related ailments that did not fit within the schedule of diseases and were not by definition an accidental injury.”
The courts have also said that the question is whether NIHL is a disease or illness “due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease,” and concluded that hearing loss is within those definitions.
Again, an occupational disease is one in which there is a demonstrated causal link between the particular disease or illness and the occupation.
Therefore, Louisiana courts now find that hazardous levels of industrial noise, which cause the hearing loss, is a condition very characteristic of and peculiar to the particular employment of working in a very loud environment.
LUNG DISEASE, PNEUMONIA, AND TUBERCULOSIS IN LOUISIANA WORKERS COMPENSATION
Pneumonia, pneumothorax (collapsed lung), and tuberculosis are the usual complicating factors in lung injury workers compensation claims.
An employee in Louisiana may be able to recover workers compensation benefits for lung disease, pneumonia, or tuberculosis if the employee can show that the employment caused the disease.
Louisiana courts have shown that lung disease, pneumonia, or tuberculosis were caused by the employment in the following situations:
- Where inhalation of dust and other particles resulted in a disabling lung disease;
- Where the testimony of plaintiff’s experts that the strain of lifting a three-hundred-pound weight activated dormant tuberculosis and caused pneumothorax; and
- Where the deceased was struck a severe blow on the head by an ax, and shortly after that he developed fever and died of pneumonia.
Expert medical testimony by a treating physician is extremely important in these situations, in order to show that the employment caused the disease.
CANCER AND TUMORS IN LOUISIANA WORKERS COMPENSATION
An employee in Louisiana may be able to recover workers compensation benefits for cancer and tumors if the employee can show that the employment caused the cancer and/or tumor.
Fortunately, developments in medical technology have given doctors the ability to determine both the cause of cancer and the effect of trauma upon the progress of cancer.
For this reason, Louisiana courts will often believe the testimony of a worker that pain and outward symptoms began immediately following an accident and continued without interruption since that time.
And then, where there is some medical opinion that a strain or blow could aggravate or activate a dormant cancerous growth, and a continuous disability since the employment event from cancer or related causes, the court will likely find that the employment caused cancer and/or tumor.
Again, expert medical testimony by a treating physician is extremely important in these situations, in order to show that the employment caused cancer or tumor.
DISEASES FROM TOXIC CHEMICALS IN LOUISIANA WORKERS COMPENSATION
An employee in Louisiana may be able to recover workers compensation benefits for injuries caused by exposure to toxic chemicals if the employee can show that the chemicals (and thus the employment) caused the injuries.
Examples of awards of workers compensation benefits for injuries caused by exposure to toxic chemicals include:
- An instance where chronic myelogenous leukemia was caused by exposure to benzene while handling crude oil;
- An instance where hepatitis B was caused by exposure to sewage while the worker was employed as a city wastewater treatment worker; and
- Cases dealing with damage from contact with poisonous substances where a physical injury is inflicted by a chemical burn of some type.
But again, expert medical testimony by a treating physician is extremely important in these situations.
OCCUPATIONAL DISEASES EXCLUDED UNDER LOUISIANA WORKERS COMPENSATION
Certain types of diseases are specifically excluded from coverage, such as degenerative disc disease, spinal stenosis, arthritis of any type, mental illness, and heart-related or perivascular disease.
When one of these listed conditions is diagnosed, Louisiana courts will conclude that coverage for the occupational disease does not exist.
However, to the extent that certain conditions are excluded from occupational disease recoverable under Louisiana workers compensation, then these excluded events and conditions might be the subject of a tort (personal injury) recovery.
This is similar to the way that the exclusions of “gradual deterioration or progressive degeneration” in a workers comp “personal injury by accident” may also allow these excluded events and conditions to be the subject of a tort (personal injury) recovery.
THE LOUISIANA STATUTE ON ILLNESSES AND DISEASES IN LOUISIANA WORKERS COMPENSATION
The primary Louisiana statute on illnesses and disease is La. R.S. 23:1031.1, which reads as follows:
§1031.1. Occupational disease
A. Every employee who is disabled because of the contraction of an occupational disease as herein defined, or the dependent of an employee whose death is caused by an occupational disease, as herein defined, shall be entitled to the compensation provided in this Chapter the same as if said employee received personal injury by accident arising out of and in the course of his employment.
B. An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease. Occupational disease shall include injuries due to work-related carpal tunnel syndrome. Degenerative disc disease, spinal stenosis, arthritis of any type, mental illness, and heart-related or perivascular disease are specifically excluded from the classification of an occupational disease for the purpose of this Section.
C. Notwithstanding the limitations of Subsection B hereof, every laboratory technician who is disabled because of the contraction of any disease, diseased condition, or poisoning which disease, diseased condition, or poisoning is a result, whether directly or indirectly, of the nature of the work performed, or the dependent of a laboratory technician whose death is the result of a disease, diseased condition, or poisoning, whether directly or indirectly, of the nature of the work performed shall be entitled to the compensation provided in this Chapter the same as if said laboratory technician received personal injury by accident arising out of and in the course of his employment.
As used herein, the phrase “laboratory technician” shall mean any person who, because of his skills in the technical details of his work, is employed in a place devoted to experimental study in any branch of the natural or applied sciences; to the application of scientific principles of examination, testing, or analysis by instruments, apparatus, chemical or biological reactions or other scientific processes for the purposes of the natural or applied sciences; to the preparation, usually on a small scale, of drugs, chemicals, explosives, or other products or substances for experimental or analytical purposes; or in any other similar place of employment.
Except as otherwise provided in this Subsection, any disability or death claim arising under the provisions of this Subsection shall be handled in the same manner and considered the same as disability or death claims arising due to occupational diseases.
D. 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, provided, however, that any such occupational disease so contracted within the twelve months’ limitation as set out herein shall become compensable when the occupational disease shall have been proved to have been contracted during the course of the prior twelve months’ employment by a preponderance of evidence.
E. All claims for disability arising from an occupational disease are barred unless the employee files a claim as provided in this Chapter within one year of the date that:
(1) The disease manifested itself.
(2) The employee is disabled from working as a result of the disease.
(3) The employee knows or has reasonable grounds to believe that the disease is occupationally related.
F. All claims for death arising from an occupational disease are barred unless the dependent or dependents as set out herein file a claim as provided in this Chapter within one year of the date of death of such employee or within one year of the date the claimant has reasonable grounds to believe that the death resulted from an occupational disease.
G. Compensation shall not be payable hereunder to an employee or his dependents on account of disability or death arising from disease suffered by an employee who, at the time of entering into the employment from which the disease is claimed to have resulted, shall have willfully and falsely represented himself as not having previously suffered from such disease.
H. The rights and remedies herein granted to an employee or his dependent on account of an occupational disease for which he is entitled to compensation under this Chapter shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents or relatives.
I. Notice of the time limitation in which claims may be filed for occupational disease or death resulting from occupational disease shall be posted by the employer at some convenient and conspicuous point about the place of business. If the employer fails to post this notice, the time in which a claim may be filed shall be extended for an additional six months.
Acts 1952, No. 532, §1; Acts 1958, No. 39, §1; Acts 1975, No. 583, §2, eff. Sept. 1, 1975; Acts 1975, No. 644, §§1, 2; Acts 1980, No. 666, §§1, 2, eff. July 24, 1980; Acts 1989, No. 454, §2, eff. Jan. 1, 1990; Acts 1990, No. 943, §1; Acts 2001, No. 1189, §1, eff. June 29, 2001; Acts 2003, No. 733, §1.