Mental and Emotional Injuries in Louisiana Workers Compensation
Louisiana workers compensation covers some mental and emotional injuries, but these injuries need to be connected to a serious accident or traumatic event that happened at work.
Such a covered mental injury could be a mental injury that was caused by mental stress, if the mental injury was the result of a sudden, unexpected, and extraordinary stress related to the employment. Or the mental injury could be a mental injury caused by physical injury.
Either way, the mental injury or illness must be diagnosed by a licensed psychiatrist or psychologist.
A licensed social worker or counselor is not sufficient to trigger benefits.
In fact, the diagnosis of the licensed psychiatrist or psychologist must meet the criteria as established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders presented by the American Psychiatric Association.
So essentially, there are two types of “mental and emotional stress” claims: (1) mental or emotional injury caused solely by mental stress, and (2) mental or emotional injury caused by a physical injury or trauma.
Each of these is governed by different rules under Louisiana workers compensation:
- Mental injury caused by mental stress. Mental injury or illness resulting from work-related stress shall not be compensable, 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.
- Mental injury caused by physical injury. A mental injury caused by a physical injury to the employee’s body shall not be compensable unless it is demonstrated by clear and convincing evidence.
CLEAR AND CONVINCING EVIDENCE
All these requirements must be met by a standard of “clear and convincing evidence,” which is a medium-high bar which is often not easily reached.
Basically, “clear and convincing” means that the evidence is highly and substantially more likely to be true than untrue, or in other words, that something is “highly probable.”
For comparison, clear and convincing evidence is a medium level of burden of proof which is a more difficult standard to meet than the preponderance of the evidence standard (which is more likely than not), but a less difficult standard to meet than proving evidence beyond a reasonable doubt (which is the burden of proof used in criminal cases).
Nonetheless, the Louisiana Supreme Court has clearly held that mental stress and trauma cases are compensable (which means that yes there is a claim to be paid), even without physical injuries or objective symptoms, so long as the cause was stress arising out of employment-related issues.
But generally, the Louisiana courts have handled these types of claims fairly conservatively, perhaps because of the vague nature of these claims.
Often the courts find that if the mental disorder, even if work-related, is not caused by physical injury or sudden and extraordinary stress, then it is likely not compensable.
But each of the two types of mental and emotional injuries are governed by different rules under Louisiana workers compensation.
MENTAL INJURIES CAUSED BY MENTAL STRESS IN LOUISIANA WORKERS COMPENSATION
A mental injury caused by mental stress is compensable (which means that yes there is a claim to be paid), if the following elements are established by clear and convincing evidence:
- That mental injury originated in a sudden, unexpected and extraordinary stress;
- That the stress was related to employment;
- That the mental injury is diagnosed by a licensed psychiatrist or psychologist; and
- That the diagnosis is as per criteria set out in the current DSM (Diagnosis and Statistical Manual).
Most mental injuries from mental stress cases deal with conflicts between employees and either a supervisor, co-worker or a customer.
These types of incidents are usually found to meet the requirement that the injury arises from an employment-related incident.
EXAMPLES OF MENTAL INJURIES CAUSED BY MENTAL STRESS
One example of a case that the courts found to be compensable involved an employee who was a witness to the suicide of a co-worker. However, if no licensed psychiatrist or psychologist had diagnosed the employee as suffering from a mental disease or defect related to a readily identifiable, unusual and dramatic work-related incident, then this suicide example would not have been compensable.
Most mental/mental injury cases in which benefits are denied are cases in which the claimant cannot show a specific extraordinary event that resulted in an injury. However, in one case example, an argument with a supervisor that did not involve any “yelling” was found to be a sufficiently extraordinary event when an “abnormally susceptible” worker was involved. But in another case example, where the evidence revealed that the event occurred over several days, the mental injury was found not to have happened suddenly, and thus the employee could not recover benefits.
Additionally, the mere showing that a mental injury is related to general conditions of employment or to incidents occurring over an extended period of time is typically not enough to justify compensation. Such was the case in one workers compensation example, where a claim for mental stress claim was brought on the basis of sexual harassment. The court denied that claim because it ruled that the mental injury must be precipitated by an accident, an unexpected and unforeseen event that occurs suddenly or violently.
In another case, a workers compensation claimant demonstrated by clear and convincing evidence that his depression was caused by “sudden, unexpected, and extraordinary stress” related to his employment as president of an insurance company handling claims in the aftermath of Hurricane Andrew. This employee was working 15 to 18 hours per day, reviewing each claim himself, and he constantly handled calls from irate insureds, some of whom threatened to kill him. The medical evidence showed that the claimant was in good health before the hurricane, and the treating psychiatrist concluded that the employee was suffering from major depression and that the work stress he encountered after the hurricane played a major role in precipitating his mental condition. For these reasons, this workers compensation claimant was able to recover full workers compensation benefits.
In another case, an employee was found to suffer a compensable accident and injury entitling her to receive workers compensation benefits, when her co-workers placed an artificial frog in a shell canister they knew the employee would open and inspect. The injured employee had an extreme phobia of frogs and, after the incident, was hospitalized, treated, and unable to return to work. Because of these facts, this workers compensation claimant was able to recover full workers compensation benefits.
But on the other hand, in another case, a general foreman on a high rise construction project failed to make his claim that his panic disorder was a result of job-related stress, where there was no sudden stressful event after a regular meeting of all foremen, and the stress he experienced was not unexpected or extraordinary for a high rise job. While the employee was able to show that his stress was a result of his employment and that he was disabled, the workers compensation court denied his claim because it found that his stress was not unexpected for a foreman and not extraordinary for that line of work.
So clearly, it is not easy to recover for a mental injury caused by work-related mental stress. But it certainly can be done, especially with an experienced attorney.
Success in these types of cases is determined case by case by the particular facts of each case, and an employee really does need an experienced Louisiana workers compensation attorney to properly assemble the evidence and present such relevant and important facts in a clear and convincing manner to the judge.
MENTAL INJURIES CAUSED BY PHYSICAL INJURY IN LOUISIANA WORKERS COMPENSATION
For mental illness resulting from physical injury to be compensable, an injured or sick employee must be able to prove the following:
- That the employee is suffering from a mental or emotional condition or injury;
- That the employee has suffered an actual physical injury; and
- That the employee’s physical injury has caused the employee’s mental or emotional condition or injury.
Above all, the injured or sick employee needs a mental health professional to relate the employee’s mental condition to the employee’s work-related physical injury. It there is no mental health professional of the opinion that the employee’s physical injury has caused the employee’s mental condition, the employee will not be able to recover benefits related to his or her mental condition.
That being said, it is important to recognize that while a physical injury must be clearly established, there is no requirement that the physical injury be one which itself rises to the level of a compensable injury of a physical nature. This means that an employee could suffer a physical injury that does not need medical treatment or cause the employee to miss work, but could still recover workers compensation benefits if that same physical injury caused a mental or emotional condition which caused the employee to require mental health treatment or to be unable to work.
Also, if the employee suffers an actual physical injury here, it does not matter how small the injury is, so long as the injury is documented. For example, in one Louisiana workers compensation case, the courts granted workers compensation benefits after a finger sprain aggravated an employee’s pre-existing depression.
Unfortunately, once again, all these requirements must be met by a standard of “clear and convincing evidence.” Clear and convincing evidence is a medium bar which is often not easily met. Basically, “clear and convincing” means that the evidence is highly and substantially more likely to be true than untrue, or in other words, that something is “highly probable.”
Finally, instances of these types of mental illnesses resulting from a physical injury are much more common than one might guess. Most common is the scenario where an employee injures his or her back at work, but then this back injury causes the employee to suffer depression due to a chemical/biological change caused by chronic pain from the employee’s back injury.
Of course, recovering workers compensation benefits for these types of mental and emotional conditions can be quite difficult for someone who is not well versed and well expended in Louisiana workers compensation law.
For these reasons, any employee suffering from mental or emotional illnesses that are connected somehow to the worker’s employment really does need an experienced Louisiana workers compensation attorney to handle his or her claim.
THE LOUISIANA STATUTE ON MENTAL AND EMOTIONAL INJURIES IN LOUISIANA WORKERS COMPENSATION
The primary Louisiana statute on mental and emotional 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.
