Did the Accident Cause the Injury Under Louisiana Workers Compensation?
The employee in a workers compensation claim must prove that his or her disability was caused by a work-related accident.
The employee must prove that his or her disability was caused by a 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 a 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 is found.
A pre-existing injury, disease, or infirmity of the employee does not disqualify a claim if the work-injury aggravated, accelerated, or combined with the disease or infirmity to produce death or disability for which compensation is claimed.
So when an employee proves that before the accident, the employee had no disability symptoms, but that beginning with the accident, the disability symptoms appeared and remained, then the employee should receive workers compensation benefits.
Also, there must be either medical or circumstantial evidence indicating a reasonable possibility of causal connection between the accident and the disabling condition; if there is, then the employee’s work injury is presumed to have aggravated, accelerated, or combined with the preexisting disease or infirmity to cause his disability.
THE EMPLOYEE’S PRESUMPTION OF CAUSATION IN LOUISIANA WORKERS COMPENSATION
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, 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 LOUISIANA WORKERS COMPENSATION?
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.
THE BURDEN OF PROOF IN PROVING THAT THE ACCIDENT CAUSED THE INJURY
An injured employee must prove the existence of an accident and its causal connection to his disability by a reasonable preponderance of the evidence. Again, a preponderance of the evidence, simply means that it is “more likely than not” that the disability was caused by the work-related accident.
In other words, being 51% sure is enough to satisfy the burden, but being 49% percent sure is not enough.
In certain cases, an injured employee may be entitled to the benefit of a presumption on the specific issue of proving that the accident caused the injury.
That is, if a healthy employee suffers a work-related accident and thereafter disabling symptoms appear and continue, and if the medical evidence shows a “reasonable possibility” of a causal connection, then it is presumed that the accident caused the injury.
This presumption does not replace the employee’s burden of proof; rather, it merely assists in meeting this burden in cases where the presumption is properly used.
In other words, if the injured worker fails to demonstrate that he or she was healthy before the incident, and thus raising the possibility that something other than the incident resulted in the disability, then the injured worker is not entitled to the presumption.
And if the presumption that the disability was caused by the work-related accident is rebutted by the employer, then no workers compensation benefits are due to the employee.
EVIDENCE USED TO PROVE THAT THE ACCIDENT CAUSED THE INJURY
Whether an accident actually occurred is a fact that is usually proven by oral testimony, and therefore the credibility (or believability) of the witnesses is often the all-important factor.
The workers compensation judge, who listens to the witnesses, and has an opportunity to observe them, will weigh the credibility of the witnesses in order to determine whether an accident actually occurred.
On the other hand, whether an accident actually caused the injury is a fact usually proven by the expert medical opinion of doctors.
This expert medical opinion is typically provided through written medical records and/or a written deposition transcript of the physician.
So while oral testimony of live witnesses can help explain whether an accident actually caused the injury, it is the expert medical records and testimony, which are usually the most important factors in determining causal relation between accident and disability.
PROOF BY THE EMPLOYEE’S OWN TESTIMONY
In many cases, the occurrence of the accident event is easily proved by eyewitnesses.
A lot of times, a work-place accident naturally attracts the attention of fellow workers.
However, injuries such as hernias, back injuries, and various cardiovascular accidents may well occur when the claimant is alone, and with only the slightest strain or trauma. Automation has also added to the likelihood that the employee may be working alone.
In light of these issues, there has been an increasing willingness on the part of the workers compensation courts to rely upon the testimony of the employee himself or herself to establish the event in which he or she was injured, if his or her story is plausible, consistent and believable, and is supported by the surrounding circumstances.
ESSENTIAL ELEMENTS FOR ACCEPTING THE EMPLOYEE’S TESTIMONY
The workers compensation courts generally require two essential elements for accepting the employee’s testimony as true:
- First, there must be no other evidence strong enough to discredit or cast serious doubt upon the employee’s version of the event.
- Second, the employee’s testimony must be corroborated (or supported) by the circumstances following the alleged accident event.
But Louisiana workers compensation courts often reject the employee’s story, for example, if coworkers are unable to confirm his version, or if, in fact, they deny that things happened the way that the employee says they happened.
Also, internal inconsistencies or vagueness in the employee’s version of events, while not necessarily fatal to the employee’s claim, certainly do not help the employee’s case.
And the employee’s failure to call a witness who would theoretically support the employee’s version may result in a presumption that that testimony would be damaging, though diligent and unsuccessful attempts to locate that witness may rebut this presumption.
THE MOST IMPORTANT CONSIDERATIONS FOR ACCEPTING THE EMPLOYEE’S TESTIMONY
Whether or not there is corroboration (or supporting evidence) of course varies from case to case, but the most essential considerations for accepting the employee’s testimony are:
- Testimony by a spouse, coworkers or friends, saying that the employee told them about the accident soon afterward, in substantially the same way that the employee now recalls it (though contradictory testimony from these folks may be damaging);
- Medical testimony consistent with the employee’s version (or in fact inconsistent with it);
- Filing of an accident report soon after the accident (or the lack of such filing);
- Continuing to work thereafter;
- Past medical history; and
- A video of the accident or injury.
Where the testimony or corroborative circumstances are inconclusive or inconsistent, the employee’s credibility (or believability) may determine whether the judge awards workers compensation benefits.
Also, it is sometimes said that a good wage earner with a family is not likely to fake a compensation claim. On the other hand, the “professional litigant” with several past compensation claims is expected to be treated with skepticism.
The fact that the employee has a record of previous workers compensation claims often works against the employee when the evidence is otherwise against the employee or where the only evidence is the employee’s unsupported testimony.
But when the evidence appears to show that a severe accident occurred, the employee will not likely lose just because of the employee’s previous claims.
As in other cases, the employee’s ability to successfully withstand cross-examination (questioning by the opposing attorney) is also important.
THE TYPE OF ACCIDENT OR WORK BEING DONE AT TIME OF INJURY
Although the fact that the employee was engaged in the type of work which could produce an injury of the kind complained of is not alone enough proof that the work did, in fact, produce the injury, but nevertheless, the type of (or characteristics of) the work, when added with other circumstances, can be very helpful to the employee in showing that the accident did, in fact, cause the injury.
For example, jobs that require heavy manual labor are much more likely to produce heavy physical injuries than white-collar office jobs.
For this reason, a manual laborer will be more likely to receive workers compensation benefits for a heavy physical injury than a white-collar office worker if both types of employees otherwise have the same type of evidence.
Similarly, where the employee relies upon a single event injury, the fact that such an event would normally bring about an injury of the type complained of can be very important in establishing a causal relationship (that the accident did, in fact, cause the injury).
And the peculiar character of an alleged accident can be significant in drawing an inference as to causal relation, and yet sadly can sometimes discredit the employee’s version of what happened.
EXAMPLES CONCERNING THE TYPE OF ACCIDENT OR WORK
For example, take the case the chicken processing plant employee whose job was to gather chicken giblets from one conveyor belt, wrap them in paper and insert them in frozen fowl suspended from another belt. Her work required the use of both hands, with the left normally used to pry open the partially frozen chicken for insertion of the giblets. The employee testified that while involved in this operation, her left wrist “popped,” and she was thereafter unable to close her fist or control her fingers properly. But the workers compensation insurance company contended that the cause of her disability was arthritis, not the work event. Unfortunately, the Court noted that “it was more than passingly strange” that arthritis affected only the left hand and wrist, when the employee’s work required the use of both hands.
And in another example, an employee’s version of his injury was that he had injured his back while lifting a paper roll shaft weighing some 150 pounds by cradling it in his arms at the center of the shaft. But other workers testified that a single man could not do what the claimant described without disrupting the mechanical process in question. Because of this, unfortunately, the Court denied the employee’s claim because the accident appeared to have happened in such a way as to convince the judge that it could not have been the source of the injury.
So again, whether the employee’s type of work can produce an injury of the type complained of can be significant evidence, and can be used both in favor of the employee and against the employee.
THE CIRCUMSTANCES AT THE SAME TIME AS (OR JUST AFTER) THE ACCIDENT
Circumstances (or the other things that happened) at the same time as the accident, or shortly afterward, can be hugely important for the employee when proving that the accident caused the injury. In particular, this type of contemporaneous evidence can be extremely useful when only the employee was present for the accident.
For example, the testimony of spouse, family members, or coworkers about what the employee later told them happened can be very helpful when only the employee has first-hand testimony about the actual event.
Similarly, the employee’s complaints about his or her injury at the time of the accident or immediately thereafter to fellow workers in the area who may not actually have witnessed the event will also be important.
But of course, the lack of any complaints to fellow workers may ultimately work against the employee.
In cases where it is established that something happened to the employee while on the job, an examination or the report of bystanders or fellow workers may be helpful in determining whether the accident caused the injury.
Sometimes a fellow employee might recall the location of the spot on the employee’s body, which had been struck because at the time of the accident the fellow employee had observed a redness, which later disappeared. Similarly, a co-worker may have testimony about the employee’s later appearance or the employee’s behavior.
Also, the time-lapse between the accident and the reporting of the incident to the employer can, in some cases, be significant, as well as whether the employee was able to continue working or had to stop.
Also, sometimes a medical examination of the employee following the alleged accident is useful in determining what actually happened, and thus the testimony of the first medical examiner may be helpful.
But again, all of these are just factors to consider, and just one of these factors alone will not likely determine the outcome of an employee’s claim.
MEDICAL TESTIMONY IN PROVING THAT THE ACCIDENT CAUSED THE INJURY LOUISIANA WORKERS COMPENSATION
Medical expert opinion testimony (the sworn testimony or certified written records of the employee’s physician) is critical in determining whether the accident caused the injury of the employee, due to the highly technical nature of the issue of causation.
Though medical testimony is sometimes useful in proving whether the accident itself even happened, it is much more important in proving that the accident caused the injury.
The primary role of the medical testimony relates to this question of a causal connection between the alleged injury and the resulting disability.
And again, the specific issue that medical expert opinion testimony is used to determine is whether it is more probable than not that the accident (assuming it can be established by the employee) caused the disability (assuming the disability also can be established by the employee).
Expert medical testimony consistent with the circumstances laid out by the other individuals (the employee, co-workers, family members, etc.) is the strongest proof of whether the accident caused the injury of the employee.
Furthermore, a strong, consistent opinion by a majority of the testifying physicians will often win out over circumstances laid out by the other non-medical individuals if those circumstances are contrary to the opinion of the physicians.
CONTRADICTORY MEDICAL OPINIONS
However, often the workers compensation insurance company will produce a physician whose opinion is contrary to the opinion of the physician of the employee.
Where the medical testimony is sharply contradictory, it is up to the workers compensation judge to choose between conflicting professional opinions, and often these judges just simply use common sense.
Fortunately, the employee is not required to resolve all the differing opinions of the medical experts. This is because under Louisiana law, it is not necessary for the experts to determine the exact cause of the disability in order for the employee to recover.
The employee only needs to show by a preponderance of the evidence (which means more likely than not) that somehow the employment caused the disability. Employees even seem to benefit at times from a presumption that the accident caused the injury, which may even win out over opposing medical testimony.
When a Louisiana workers compensation judge does attempt to resolve conflicting expert opinions, the medical position which appears more reasonable and more probable in the light of common sense is likely to be chosen as the correct testimony.
Also, the testimony of specialists in the employee’s specific type of injury, or physicians who have actually treated the employee, is in most cases more convincing to the workers compensation judge than that of other physicians (usually the insurance company’s doctors) who are neither specialists or who did not actually treat the employee.
So, fortunately, the bottom line here is that the edge typically goes to the employee’s own treating physician, and not to the insurance company’s doctor who did a one-time examination.
THE LOUISIANA STATUTE ON CAUSATION OF INJURIES IN LOUISIANA WORKERS COMPENSATION
The primary Louisiana statute on causation of injuries 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.