Proof of an Employee's Disability in Louisiana Workers Compensation

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Disability in Louisiana Workers Compensation Is Defined by Wage Loss

Louisiana law provides for several types of disability, including total disability and a disability which is less than total:

    1. Total disability is defined as the inability “to engage in any self-employment or occupation for wages.”
    2. Disability which is less than total is defined as the inability “to earn wages equal to ninety percent or more of wages at time of injury,” a standard which measures disability entirely in economic terms rather than physical terms. 

So in this sense, Louisiana courts have consistently held that disability is denied by and thus related to wage loss, as opposed to the specific physical injury or infirmity.

In short, disability is the event of being incapacitated from the performance of normal labor.

If there is no loss of earning capacity, then there is no disability within the meaning of the Louisiana workers compensation (except for the scheduled benefits).

In other words, an employee is disabled if he or she cannot fully return to work, not if the employee is injured (no matter how bad the injury).

But Disability in Louisiana Workers Compensation Is Determined Mostly by Medical Testimony

So the question of whether or not an employee is disabled is determined by whether or not the employee is able to fully return to work.

But the question of whether or not the employee is able to fully return to work is likely to be answered mostly by medical testimony provided by doctors.

Technically speaking, the Louisiana Supreme Court has described the question of disability as a “hybrid quasi-medical concept, in which are commingled in many complex combinations the inability to perform, and the inability to get suitable work.”

Basically, this means that disability is determined partly by medical evidence and partly by non-medical evidence.

So non-medical testimony (especially concerning the types of occupations available to the injured employee) may be helpful.

But no evidence is more important than the expert medical testimony provided by the treating physician when establishing whether a disability exists or not.

Conflicting Medical Opinions When Determining Disability in Louisiana Workers Compensation

However, many times the workers compensation insurance company will hire its own doctor to dispute the finds or recommendations of the employee's treating physician.

However, just because there are conflicting medical opinions does not mean that the employee will not recover workers compensation benefits.

Louisiana courts have provided some rough guidelines for weighing conflicting medical testimony.  

Treating Versus Non-Treating Physicians

The most common of these rules is the rule that the testimony of the treating physician is to be strongly considered, and usually believed over the testimony of a non-treating physician.  

This is because the treating physician typically will have been able to observe the employee patient for an extended period of time, while often the insurance company's doctor will only perform a one-time evaluation.

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.  

Specialist Versus Non-Specialist Physicians

Another very common rule set forth in Louisiana courts is the rule that the testimony of the specialist doctor may be preferred over the testimony of the general practitioner.  

This is typically because a specialist is generally considered better qualified to offer an opinion on a specific injury, given his or her specialized training and background.

More often than not, the testimony of the treating physician is more likely believed, even when the treating physician and a separate specialist physician disagree.

Physicians Treating Immediately After the Injury

A third common rule set forth in Louisiana courts is the rule that the testimony of a physician who examined the employee immediately after injury is generally preferred to the opinion of a physician who examined the employee at a later time.

The Importance of Choosing the Right Physician

Of course, the workers compensation court will make its decision on the basis of all relevant medical evidence, and will give weight to all of the above factors that are present. These determinations are fact-sensitive and vary from case to case, based on the specific circumstances of each particular case.

But when a Louisiana workers compensation judge does attempt to resolve conflicting expert medical 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.  

So for an employee, it is extremely important who the employee's treating physician is, and an experienced workers compensation attorney can often be extremely helpful in choosing the right doctor. 

Presumptions and Burden of Proof of Disability in Louisiana Workers Compensation

The use of “any presumption of disability” is not permitted under Louisiana law.

Also, Louisiana law provides that if an employee is not engaged in any type of employment and claims total and permanent disability, he must prove “by clear and convincing evidence, unaided by any presumption of disability,” that he is “physically unable to engage in any employment."

Proof of disability sufficient to be entitled to supplemental earning benefits (SEBs) is also burdensome for the employee. If an employee is not engaged in any employment, or is earning lower wages than he was prior to injury, the amount of post-injury wages which will go into the calculation for SEBs is the amount that he “would have earned in any employment … which he was physically able to perform” and which was offered to him or proven available to him. 

In order to prevent the inclusion of wages which he or she “could have earned” in the calculation, the employee must under Louisiana law establish “by clear and convincing evidence, unaided by any presumption of disability, that solely as a consequence of substantial pain,” that he or she cannot perform the tendered or available employment.

So 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 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."  

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). 

Lay (Or Non-Expert or Non-Medical) Testimony for Proof of Disability in Louisiana Workers Compensation

The testimony of the medical experts may be supported by the evidence of the employee or other "lay" witnesses.

Lay witnesses or lay testimony refers to witnesses or testimony other than that of experts or doctors.

In other words, lay witnesses are just regular people, such a family members or co-workers of the injured employee.

Louisiana courts have held that "lay evidence must be weighed with consideration for the medical fact to be established, of the conclusiveness and validity of the medical evidence and the materiality, relevance and reliability of the particular lay evidence, according to its focus, foundation and its source."

But the courts also point out that great weight was still to be given to un-contradicted medical evidence, “almost to the point of exclusion of other evidence,” when the question involved is a complex scientific one.

But lay testimony is often strongly considered on the issue of whether a worker is disabled, because disability is not necessarily a complex scientific question.

Types and Examples of Lay Testimony When Determining Disability in Louisiana Workers Compensation

Lay testimony regarding disability can take several forms.

The employee will usually describe his or her symptoms and their effect on the employee's ability to work or the effect on other activities.

Usually the employee, with the support of the medical witnesses, will be able to succeed in showing some objective symptoms of injury.

But sometimes, however, and particularly in connection with back conditions, the evidence may fail to show that there was any objective symptom to prove the employee's disability or demonstrate the employee's pain. But recovery is not arbitrarily denied in such cases, because in many cases, the proof of the occurrence of the accident itself usually satisfies the requirement of objective conditions of symptoms.

Additionally, lay testimony is often important when determining the question of pain. Often, for purposes of receiving supplemental earnings benefits, the employee may need to establish the fact of pain.

Establishing the history of pain is usually be done through the lay testimony of the injured employee and his or her relatives and friends, and supported by the evidence of the medical experts that the objective conditions are the kind that usually produce pain.

Photographs and Videotapes for Proof of Disability in Louisiana Workers Compensation

The workers compensation insurance companies very frequently hire investigators to take pictures and videos of the injured employee, in order to deny the employee workers compensation benefits.

These workers compensation insurance companies will obtain certain photographs or videos secretly taken by the investigator, and then assert that the employee is not disabled and is actually committing fraud.

Often - but not always- these photographs or videos will be held admissible in Louisiana workers compensation courts. That means that the judge will see and use them. 

Pictures also may be introduced in court, but could possibly be excluded or minimized, because pictures are often merely a depiction of an isolated incident.

Occasionally, the pictures or videos will show that employee is in fact disabled, and thus strengthen the employee's claim of disability.

The workers compensation judge will want:

    1. The identity of the injured employee to be clearly established;
    2. The movements of the injured employee to be continuous and not isolated actions over a long period of time; and
    3. The injured employee to be able to offer an explanation.

The employee - or preferably the employee's attorney - is entitled to receive any and all such pictures and/or  videotapes prior to the hearing in front of the judge.

In fact, the employee - or preferably the employee's attorney - should receive any and all such pictures and/or videotapes prior to any depositions of the employee or other witnesses.

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