Are Aggravations of Pre-Existing Conditions Covered Under Louisiana Workers Compensation?
Louisiana workers compensation generally covers aggravations of pre-existing conditions. Louisiana law also covers whenever the employee’s work accelerates the injury.
Specifically, Louisiana workers compensation courts have ruled that “an otherwise healthy employee with a pre-existing condition is entitled to benefits if she can prove that her work contributed to, aggravated, or accelerated her injury.”
But going even further, Louisiana courts have found that workers compensation will cover any work-related injury “which is more than a gradual deterioration or progressive degeneration.”
So, the general rule is that an employee’s pre-existing disease or condition does not disqualify a claim, if the work-related injury aggravated, accelerated, or combined with the disease or condition to produce the disability for which compensation is claimed.
In essence, the employer takes his employees as he finds them, and cannot deny a workers compensation claim based on pre-existing conditions.
WERE THERE SYMPTOMS BEFORE THE ACCIDENT?
Therefore, in a Louisiana workers compensation pre-existing condition aggravation case, the critical factors to look for are:
- Whether the condition was asymptomatic prior to the alleged incident;
- The sudden onset of symptoms; and
- 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 before his or her work-related accident, then that employee’s back injuries should be covered under Louisiana workers compensation.
THE ABNORMALLY SUSCEPTIBLE EMPLOYEE IN LOUISIANA WORKERS COMPENSATION
strong>Louisiana workers compensation courts have firmly ruled that “the employer must take the worker as he finds him.”
This simply means the worker who is abnormally susceptible – or predisposed – to disability is nevertheless entitled to full workers compensation benefits, even though the same accident would have caused little or no harm to a healthy worker.
strong>It does not matter that a pre-existing disease or weakened condition might alone have eventually produced an employee’s disability or death.
strong>Simply put, Louisiana workers compensation courts will not take into consideration the health deficiencies of an employee.
There are three main ways in which an employee may be abnormally susceptible or predisposed to disability. Specifically, the employee may have:
- Pre-existing conditions that produce accidents;
- Pre-existing conditions that produce disabling consequences; or
- Pre-existing conditions that delay or prevent an employee’s normal recovery.
PRE-EXISTING CONDITIONS THAT PRODUCE ACCIDENTS IN LOUISIANA WORKERS COMPENSATION
First, a pre-existing condition may help cause the actual injury by an accident to an employee, when such an accident would not have happened if the worker did not have the preexisting condition.
A typical example of this kind of case is the worker with some form of heart disease, which renders the employee susceptible to a heart attack.
This employee may be so vulnerable that a very slight strain or exertion could cause a heart attack.
Nevertheless, this employee is fully protected and covered under Louisiana workers compensation for such a heart attack.
Such a heart attack will be treated as the “accident,” which disables the employee, even though another employee without such a pre-existing disease would not have suffered a heart attack.
Other typical cases in which a preexisting deficiency has made an employee peculiarly susceptible to an accident are those cases that involve hernias.
PRE-EXISTING CONDITIONS THAT PRODUCE DISABLING CONSEQUENCES IN LOUISIANA WORKERS COMPENSATION
Second, a pre-existing condition can make the consequences of an accident disabling, even when this pre-existing condition does not make the employee susceptible to an accident or help cause the accident.
The typical example is an employee whose injury by accident aggravates a pre-existing arthritic or diabetic condition, and the consequences of that disease—now aggravated—cause the employee to be disabled.
Often these cases involve relatively minor accidents that produce disabling consequences in the injured employee because of a pre-existing disease or condition when those same consequences would not be produced in a healthy worker.
In such cases, it will normally be held that an employee disabled by accident is not to be denied workers compensation merely because the employee had a pre-existing condition that might have brought about the disability.
ARTHRITIC CONDITIONS IN THE BACK AND OTHER VARIOUS BACK AILMENTS
By far, the two most common pre-existing conditions (that make the consequences of an accident disabling) are arthritic conditions and various back ailments; and often, these two pre-existing conditions are presented together.
Many of these back ailments involve the specific conditions of spondylosis or spondylolisthesis.
Sometimes the treatment of and operation on the affected area in the back or neck can activate the disease in another disc or back area.
But, of course, it must be shown that a congenital back ailment was, in fact, aggravated by an accident, or recovery will be denied.
Louisiana workers compensation courts have also approved workers compensation awards in situations in which the preexisting deficiency was arteriosclerosis, cancer, diabetes, hypertension, osteoporosis, various kidney ailments, syphilis, multiple sclerosis, tuberculosis, prostatitis, obesity, severe asthma, arthritis, uterine prolapse, epilepsy, pyorrhea, and others.
Many of these cases involved rather serious trauma, but some of them involved relatively minor injuries with disastrous consequences for the employee with pre-existing conditions.
Also, often the pre-existing condition is not even a disease but a condition resulting from a previous injury.
For example, employees have been granted workers compensation benefits for a disability produced by an employment-related accidental injury, which combined with an old war injury to a leg, or an old back injury, or a prior knee injury, or a lingering traumatic neurosis from a previous accident.
THE DISABILITY PRESUMPTION AND THE MALINGERING (OR FAKING) DEFENSE
Louisiana workers compensation courts have noted that it can be difficult to distinguish between the hard-working employee who was never previously bothered by his preexisting condition, but who now finds himself unable to return to work because of it; and the malingering – or faking or exaggerating – employee who, now aware of a preexisting condition previously unknown to him, has no great interest in returning to his employment.
Fortunately, the benefit of the doubt is usually given to the employee in such cases.
Louisiana workers compensation courts have maintained the following presumption in such matters which is of substantial assistance to the employee:
“An employee’s disability is presumed to have resulted from an accident if before the accident the injured employee was in good health, but starting with the accident, the symptoms of the disability appear and continue afterward, so long as the medical evidence shows that there is a reasonable possibility that the accident caused the disability.”
In other words, if the employee had no symptoms before the accident, but had symptoms after the accident, then it is presumed that the accident caused the injury.
Despite this presumption, each case must be decided on its own facts, and the workers compensation insurance company retains the right to overcome this presumption and prove, if it can, that the accident was not the cause of the employee’s disability.
PRE-EXISTING CONDITIONS THAT DELAY OR PREVENT RECOVERY IN LOUISIANA WORKERS COMPENSATION
Third, a pre-existing condition may delay or slow down an employee’s recovery, and thus prolong the employee’s period of disability. The recovery of an employee without such a pre-existing condition would be much quicker, and this, of course, would have an effect on the amount of benefits actually paid to such employees.
Arthritis very frequently has this effect of prolonging the employee’s disability. Other degenerative diseases and obesity may also prolong recovery.
But under Louisiana law, such pre-existing conditions do not matter, and the employee may recover up to the maximum allowed for the disability.
THE LOUISIANA STATUTE ON AGGRAVATIONS OF PRE-EXISTING CONDITIONS IN LOUISIANA WORKERS COMPENSATION
The primary Louisiana statute on causation of aggravations pf pre-existing conditions 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.