Occupational Diseases in General Under Louisiana Workers Compensation
Occupational diseases are diseases which are characteristic and peculiar to the employer's business.
Occupational diseases are illnesses, not injuries caused by accidents.
Common examples of occupational diseases include carpal tunnel syndrome, asbestosis and silicosis. By comparison, common examples of injuries are broken bones, sprained ankles, and concussions.
Same Workers Compensation Benefits As Where There Is a Physical Injury
In Louisiana, every employee who is disabled because of an occupational disease is entitled to the same workers compensation benefits that an employee would received if the employee were injured by a physical personal injury by accident arising out of and in the course of employment.
So basically, an employee get the same benefits, whether the employee has an occupational disease (such as carpal tunnel syndrome) or an actual injury (such as a broken wrist).
Under Louisiana workers compensation, there exists a presumption that an occupational disease that appears in the first 12 months of employment is not related to that employment. That means that any occupational disease contracted by an employee while performing work for a particular employer in which he has been engaged for less than twelve months shall be presumed not to have been contracted in the course of and arising out of such employment.
For occupational diseases, the date of accident to be used for purposes of calculating the average weekly wage will be the date of last employment with the employer from whom benefits are sought, or the date of last injurious exposure, whichever occurs last.
Generally speaking, degenerative disc disease, arthritis, spinal stenosis, heart related disease and mental illness are not occupational diseases. Neither are hernias. However, carpal tunnel syndrome can be an occupational disease. Also, since thoracic outlet syndrome is akin to carpal tunnel it to can qualify as an occupational disease.
Carpal Tunnel Syndrome in Louisiana Workers Compensation
Carpal tunnel syndrome is specifically allowed for recovery within the definition of occupational disease.
In other words, if an employee suffers from carpal tunnel syndrome, the employee may be able to recover workers compensation benefits for the carpal tunnel syndrome. It all depends on whether the employment caused the carpal tunnel syndrome.
Sometimes the causal relationship between the carpal tunnel syndrome and employment is fairly easily established, sometimes the causal relationship is somewhat more questionable but still proven, and sometimes the causal relationship is not proven and thus compensation is denied for that reason.
In some cases, it has been recognized that the listing of carpal tunnel syndrome as an occupational disease does not exclude the possibility that it might have occurred as an “injury by accident” and might be covered for that reason. But again this must be proven on a case by case basis under the particular facts of each case.
Also, in several cases, it has been held that thoracic outlet syndrome is similar to carpal tunnel syndrome and thus should be considered as within the listing of carpal tunnel syndrome as an occupational disease.
Occupational Noise-Induced Hearing Loss (NIHL) in Louisiana Workers Compensation
Under Louisiana law, occupational noise-induced hearing loss (NIHL) is considered an occupational disease.
Because the occupational noise-induced hearing loss is covered under Louisiana workers compensation, employers are now granted tort immunity to an employer sued by employees for compensatory damages for such hearing loss.
Louisiana courts have said that it wanted to achieve “more expansive and comprehensive coverage to include employment-related ailments that did not fit within the schedule of diseases and were not by definition an accidental injury.”
The courts have also said that the question is whether NIHL is a disease or illness “due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease," and concluded that hearing loss is within those definitions.
Again, an occupational disease is one in which there is a demonstrated causal link between the particular disease or illness and the occupation.
Therefore, Louisiana courts now find that hazardous levels of industrial noise, which cause the hearing loss, is a condition very characteristic of and peculiar to the particular employment of working in a very loud environment.
Lung Disease, Pneumonia, and Tuberculosis in Louisiana Workers Compensation
Pneumonia, pneumothorax (collapsed lung), and tuberculosis are the usual complicating factors in lung injury workers compensation claims.
An employee in Louisiana may be able to recover workers compensation benefits for lung disease, pneumonia, or tuberculosis, if the employee can show that the employment caused the disease.
Louisiana courts have shown that lung disease, pneumonia, or tuberculosis were caused by the employment in the following situations:
- Where inhalation of dust and other particles resulted in a disabling lung disease;
- Where the testimony of plaintiff's experts that the strain of lifting a three-hundred pound weight activated dormant tuberculosis and caused pneumothora; and
- Where the deceased was struck a severe blow on the head by an axe, and shortly thereafter he developed fever and died of pneumonia.
Expert medical testimony by a treating physician is extremely important in these situations, in order to show that the employment caused the disease.
Cancer and Tumors in Louisiana Workers Compensation
An employee in Louisiana may be able to recover workers compensation benefits for cancer and tumors, if the employee can show that the employment caused the cancer and/or tumor.
Fortunately, developments in medical technology have given doctors the ability to determine both the cause of cancer and the effect of trauma upon the progress of a cancer.
For this reason, Louisiana courts will often believe the testimony of a worker that pain and outward symptoms began immediately following an accident and continued without interruption since that time.
And then, where there is some medical opinion that a strain or blow could aggravate or activate a dormant cancerous growth, and a continuous disability since the employment event from cancer or related causes, the court will likely find that the employment caused the cancer and/or tumor.
Again, expert medical testimony by a treating physician is extremely important in these situations, in order to show that the employment caused the cancer or tumor.
Diseases from Toxic Chemicals in Louisiana Workers Compensation
An employee in Louisiana may be able to recover workers compensation benefits for injuries caused by exposure to toxic chemicals, if the employee can show that the chemicals (and thus the employment) caused the injuries.
Examples of awards of workers compensation benefits for injuries caused by exposure to toxic chemicals include:
- An instance where chronic myelogenous leukemia was caused by exposure to benzene while handling crude oil;
- An instance where hepatitis B was caused by exposure to sewage while the worker was employed as a city wastewater treatment worker; and
- Cases dealing with damage from contact with poisonous substances where a physical injury is inflicted by a chemical burn of some type.
But again, expert medical testimony by a treating physician is extremely important in these situations.
Occupational Diseases Excluded Under Louisiana Workers Compensation
Certain types of diseases are specifically excluded from coverage, such as degenerative disc disease, spinal stenosis, arthritis of any type, mental illness, and heart-related or perivascular disease.
When one of these listed conditions is diagnosed, Louisiana courts will conclude that coverage for the occupational disease does not exist.
However, to the extent that certain conditions are excluded from occupational disease recoverable under Louisiana workers compensation, then these excluded events and conditions might be the subject of a tort (personal injury) recovery.
This is similar to the way that the exclusions of “gradual deterioration or progressive degeneration” in a workers comp “personal injury by accident” may also allow these excluded events and conditions to be the subject of a tort (personal injury) recovery.