Post-Accident Medical Complications
Many employees are in excellent health prior to a work-related accident, but then suffer unusual complications following the accident.
The Louisiana Workers Compensation Act specifically holds that an employee who has an accident may be compensated for “injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom.”
So what specific complications following in the wake of an accident are covered by Louisiana workers compensation?
Basically, some complications are covered, and some complications are not covered. Really, it is necessary in each case to determine what specific type of complications followed in the wake of an accident, to see if the complications are covered by the statute.
But generally speaking, Louisiana courts do tend to lean in favor of the employees on the issue of post-accident complications.
When the employee can show that the accident caused or contributed to the final disability, Louisiana courts usually tend to allow recovery, even if the worker's condition was complicated by infection, negligent medical treatment, lack of medical treatment, or another accident.
Post-Accident Infection, Disease and Other Medical Problems
Employees can generally recover workers compensation benefits for infections or diseases secondary to the work-related accident itself.
That means, that if a work-related injury gets infected, workers compensation in Louisiana will cover it.
This is important, because infection is probably the most common post-accident risk employees face.
Similarly, Louisiana employees can generally recover workers compensation benefits when lowered body resistance following an injury allows for an infection which would otherwise not occur.
An example of this type of recovery is where an employee fell fifteen feet and landed on pavement, and then two weeks later he died of pneumonia. This deceased employee's family was awarded full workers compensation benefits.
Post-Accident Medical Complications Resulting from Treatment
Some of the complications suffered after work-related accidents are the result of the treatment which the employee received, rather than the result of the ordinary course of disease or infection.
Fortunately, employees can generally recover workers compensation benefits for the medical complications resulting from the treatment which the employee receives.
Sometimes these complications take the form of unavoidable consequences arising from medical treatment.
An example of unavailable complications is where an employee suffered serious burns in an explosion, and eventually recovered as well as could be expected, but was left with a substantial hearing loss in both ears. It was determined that the cause of this hearing loss was the antibiotic in the employee's ears used to treat a burn there. The Louisiana court in this example awarded full workers compensation benefits to the employee for his hearing loss as well as his other injuries, since his hearing loss was an unavoidable complication from the employee's medical treatment.
On other occasions, the complications arise because of the apparent negligence of the physician or another medical provider. Often, the medical provider will be liable. And the employer should not be liable for harm from a cause which is extraordinary and thus outside such risks inherent to the treatment.
But it is not always easy to determine, however, what risks are inherent to medical treatment, or whether the medical provider or the employer is at fault.
An injured employee should always consult with an experienced Louisiana workers compensation attorney when dealing with this type of situation.
What Should Be Done If a Third Party - Not a Doctor - Causes Harm After the Accident?
Accidents or injuries often occur after the employee's work accident, and can contribute to the employee's injuries, or delay the employee's recovery. Should the employer of the insurance company have to pay or this? Basically it depends on whether the incident that caused the second injuries were “neutral” risks (nobody's fault) or “negligent” risks (somebody's fault).
If there is post-accident “neutral” conduct, (which means there was no negligence, and the conduct was nobody's fault), then Louisiana courts will usually find that the workers compensation insurance company remains responsible for the injuries of the employee.
So, what exactly is neutral conduct?
Well, an example of neutral conduct occurred in one case where the employee had suffered a back injury and was healing normally until a few weeks after surgery, when her child “came up behind her and frightened her” during the child's birthday party. The courts held strongly that the event at the birthday party extended the employee's disability, and that the workers compensation insurance company should pay for all the treatment, because the event in question involved post-accident “neutral” conduct, not negligence.
If there is post-accident “negligent” conduct, (which means that the conduct was somebody's fault), then Louisiana courts will usually find that the workers compensation insurance company does not have to cover those post-accident injuries of the employee.
An example of this is an employee who gets in a car accident while the employee is recovering from his or her separate work-related injury. In that situation, the workers compensation insurance company would not have to pay for the additional injuries of the employee, even if they were aggravated by the car accident.
So again, the workers compensation insurance company will not likely be liable for any aggravation of a work-related injury by the independent negligence of a third person, even though that negligence might have occurred in the course of medical treatment of the original injury. But then again, the automobile insurance company of the driver of the other car in the accident will likely have to pay.
Post-Accident Falls, Accidents or Other Events
Sometimes, employees are re-injured in a way that can be attributed in some way to the original accident. For example, what about the employees who breaks his leg at work, and then re-breaks it during recovery?
The simple answer is that in most cases, the workers compensation insurance company will have to cover all of the injury and the re-injury.
For example, in one case, an employee suffered a work-related heart attack on the employment premises, forcing him to terminate employment. About nine months later, he suffered a second and fatal heart attack at home. The Louisiana workers compensation court held that the first attack was in the course of and arose out of his employment, and that the second was a “natural, foreseeable, and expectable consequence of the work-related heart attack and the employee's death resulting therefrom is compensable.” And because of that reasoning, the court awarded full death benefits to the dependents of the employee.
But again, as in the case with an automobile accident following the work-related accident, if there is no causal relationship between the two injuries, then the workers compensation insurance company will not have to cover any of the re-injury or the complications.
Yet this is often an area of dispute to be handled by a qualified workers compensation attorney in front of the workers compensation judge. That is, is the employee's present condition caused by the accident, or the re-injury, and what exactly did the work-related accident cause?
Obviously, if a second incident is not causally related to the first, and the first was not in fact disabling, then no workers compensation benefits will be paid.
Effect of Employee's Own Post-Accident Conduct
There is no law in Louisiana that requires an injured employee to take reasonable measures to improve his or her disability following an accident.
But Louisiana courts have ruled that the employee should not be allowed to “increase the burden upon society by reason of an unnecessarily prolonged disability due not to injuries received in the service of industry but to his laggard sense of his obligation to society.” And on that basis, in some instances Louisiana court have denied workers compensation benefits to the employee because of his or her post-accident conduct.
Refusal to Submit to Operation
Easily the most litigated issue involving the employee's post-accident conduct is his refusal to submit to an operation.
The question is: should the employee continue to receive benefits if the employee refuses to undergo a recommended surgery? The answer is: yes, if the surgery is reasonable.
Of course, that begs the question: what is reasonable?
The Louisiana Supreme Court has approved a three-part test to determine whether the employee's refusal to submit to an operation is unreasonable.
Specifically, these following questions must be answered affirmatively in order for further payments to stopped if the employee will not undergo the surgery:
- Can it be reasonably assumed that the operation will relieve the situation and permit the employee to resume the type of work he was performing at the time of the accident?
- Will the operation submit the employee to a minimum of danger and be in no sense dangerous to his life or be attended by no unusual risks and is it attended with but slight pain?
- Is there no serious disagreement among the surgeons as to the necessity for the operation or the type of operation to be performed, and the probability that the disability will be cured without recurrence?
In other words:
- Will the surgery allow the employee to return to work?
- Is the surgery safe?
- Do all the doctors agree?
Even with this three-part test, Louisiana workers compensation courts usually give the benefit of the doubt to the employee.
Judicial Determination of a Refusal of An Employee to Submit to A Surgery
The refusal of an employee to submit to a surgical procedure is called a “legal” question, as opposed to a “medical” question.
That means that the refusal of an employee to submit to a surgical procedure is an issue which requires judicial determination.
That also means that the issue will need to go before the workers compensation judge.
Thus, an employee is entitled to have the issue of refusal to submit to a surgical procedure fully litigated.
That means witnesses, exhibits, a trial, and possibly an appeal, all before the employee's compensation payments may be terminated on the grounds that the employee has refused to undergo surgery.
In fact, if the workers compensation insurance company does terminate payments prior to such a determination, then the workers compensation insurance company may have to pay penalties and attorney's fees to the employee.
Failure to Co-operate in Recommended Treatment
Sometimes the employee's post-accident conduct will be that of a failure to co-operate with the treating physician. A typical example is an employee's failure to undergo physical therapy.
Unfortunately, Louisiana courts have held that if such an employee refuses to undergo recommended treatment, then the workers compensation insurance company can terminate that employee's benefits.
However, the workers compensation insurance company still has the burden of establishing that the employee's willful failure to cooperate with medical treatment is the continuing cause of disability by “clear, convincing and conclusive” evidence. So the defense does not always win these types of cases.
Other Post-Accident Conduct of the Employee
Does the post-accident conduct of the employee - which does not relate to the course of treatment or submission to indicated surgery - have any effect on the employee's workers compensation benefits?
As usual, the answer is: it depends.
Basically, it depends on whether the conduct of the employee was misconduct.
No Misconduct of the Employee
If, after the employee's works-related accident, the employee causes re-injury or aggravation or other injury, but doesn't actually do anything wrong, then the workers' compensation insurance company will likely have to continue paying benefits for all these related injuries.
For example, in one case, the employee, wearing a cast on his left leg following a work-related injury, noticed a young child in front of him who was about to fall down some steps. Despite his precarious position, he reached out to assist, lost his balance and fell, breaking his right wrist. The question was whether the workers compensation insurance company was responsible for payment of benefits for the injury to his wrist. The court ruled that the conduct of the employee was not in violation of what would have been expected of the ordinarily prudent person under the circumstances, and thus the workers compensation insurance company was responsible for payment of benefits for the injury to his wrist.
Misconduct of the Employee
Predictably, when the post-accident event demonstrates “fault” on the part of the employee rather than merely susceptibility to subsequent events, there may be a denial of further benefits.
That means that if, after the employee's works-related accident, the employee does something wrong to cause re-injury or aggravation or another injury, then the workers compensation insurance company will likely not have to continue paying benefits.
For example, in one case, the court refused to make the workers compensation insurer pay for the cost of drug abuse therapy, after the employee turned to “street drugs” for pain relief when the prescribed medications did not work to his satisfaction.
Basically, Louisiana Courts have found that workers compensation insurers have a right to expect that the employee will minimize his damage by avoiding negligent conduct.
So even though fault does not matter in terms of the initial injury, it can matter in terms of an aggravation or re-injury.