Workers' Compensation and General Liability Defense Attorneys

Chapter 2 - Accidents


Current definition:

The goal of workers compensation is to place the expense of work related injuries on the employer.  The goal is not to provide health insurance or to substitute workers compensation for health insurance.  Workers will have heart attacks at home or at work.  Workers will catch the flu at home or at work.  Workers will have degenerative processes cause arthritis in their joints and make them less physically strong over time.  A heavily litigated area of workers compensation is whether an injury occurred at work or whether the employee is being worn down by old age and general physical activity, non-work related. 

The Workers’ Compensation Act defines accident and injury.  In reading these definitions listed below it is quite apparent that both definitions were written by lawyers.  The definitions are contained in the Louisiana R.S. 23:1021 and state:

"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.

"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

Non- Employment Illness Versus Accident

As stated above, workers’ compensation insurance is not designed to become the health insurance of employees.  Its purpose is to place the burden of and the cost of injuries and illnesses caused by employment on the employer. If a worker is 55 years old he is likely to develop arthritis in his hands.  The arthritis would occur in the individuals hands whether he was employed or not and is a general deterioration of the human body.  This type of ailment is not intended to be covered by workers compensation.  If, however, and employee has no symptoms of arthritis in his hands until “an accident” occurs at work in which both hands are smashed by machinery.  The underlying arthritis is aggravated by the job accident, and is therefore, compensable. 

Burden of Proofing an  Accident

Workers compensation laws are liberally construed to find coverage for an injured worker.  The injured worker is given many benefits of the doubt. The most difficult workers compensation claim to defend is an unwitnessed accident.  An unwitnessed accident can be proven if: (1) no other evidence discredits or cast serious doubt upon the workers version of the incident; and (2) the workers testimony is corroborated by circumstances following the alleged incident.  If a worker reports an injury contemporaneous with its happening. HE then goes to a healthcare professional and reports the accident.  Shortly thereafter, he is listed as disabled by the accident.  Unless the employer can present affirmative proof that the accident did not happen at work, the worker will be presumed to have been injured and disabled by the work accident.  The Louisiana Supreme Court in Bruno v. Harbert Int’l, Inc., 593 So.2d 357, 361 (La. 1992), discussed the burden of proof in a workers compensation case as follows:

Despite the liberal construction of the statute afforded the worker in a compensation action, the worker's burden of proof is not relaxed. Prim v. City of Shreveport, 297 So.2d 421 (La. 1974). Rather, as in other civil actions, the plaintiff-worker in a compensation action has the burden of establishing a work-related accident by a preponderance of the evidence.  Id.; Nelson, supra. A worker's testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker's version of the incident; and (2) the worker's testimony is corroborated by the circumstances following the alleged incident. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La. 1979);  Malone and Johnson, 13 Louisiana Civil Law TreatiseWorkers' Compensation, § 253 (2d Ed. 1980). Corroboration of the worker's testimony may be provided by the testimony of fellow workers, spouses or friends. Malone &  Johnson, supraNelson, supraCorroboration may also be provided by medical evidence.  West, supra

In determining whether the worker has discharged his or her burden of proof, the trial court should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent "circumstances casting suspicion on the reliability of this testimony." West, 371 So.2d at 1147Holiday v. Borden Chemical, 508 So.2d 1381, 1383 (La. 1987).

While the Louisiana Supreme Court and numerous Courts of Appeals have stated that the burden of proof is not relaxed in a workers compensation case, it clearly is.  An injured worker can prove the occurrence of an accident by his testimony alone.  Unless the employer can cast serious doubt on his version of the facts, or impeach him with inconsistent statements, and greatly attack the injured workers creditability, the courts overwhelmingly find the occurrence of an accident. 

Burden of Proof for Un-Witnessed Accident

Mr. Temple was an employee of Global on February 26, 2011. Global provided labor in converting the Mandeville Street Wharf to a tourism facility. While working in the early morning hours, Mr. Temple fell or stepped off of a "pick board" or concrete support underneath the wharf, while accessing a concrete pier support. Mr. Temple injured his left elbow and his back in the fall. Craig Rink, Mr. Temple's supervisor, took Mr. Temple to the hospital after the fall.

On July 8, 2011, Mr. Temple filed his Disputed Claim for Compensation. In the claim, Mr. Temple alleged he injured his back and left elbow "while trying to secure roofing." Mr. Temple verified that no wage benefits had been paid to him and no medical treatment was authorized by his employer. In his amended claim filed on July 18, 2011, Mr. Temple provided that he injured his left elbow, low back, neck, left hip and left leg on cement piling while walking down a pick board.

The trial court found that Mr. Temple carried his burden of proving an accident, and Global was ordered to pay Mr. Temple $8,000.00 in penalties and $10,000.00 in attorney fees pursuant to La. R.S. 23:1201(1).

Global appealed and alleges the trial judge did not apply the correct legal standard in concluding that Mr. Temple proved entitlement to workers' compensation benefits and failing to cite La. R.S. 23:1021(1). Global argues that Mr. Temple failed to prove any immediate objective medical findings of his injuries, despite the fact that Mr. Temple injured himself during a fall on concrete. Global contends that an objective medical finding of a bruise or a mark of some type on Mr. Temple's back should have been visible during his first couple of medical examinations, especially during his first emergency room visit. Global further contends the only positive objective medical finding for Mr. Temple was an MRI performed on April 14, 2011, which showed a pre-existing degenerative finding that pre-dated Mr. Temple's February 26, 2011 fall and does not show impingement that would account for Mr. Temple's subjective complaints. As such, Global concludes that Mr. Temple failed to prove a back injury as required by La. R.S. 23:1021(1).

The employee in a workers' compensation action has the burden of proving a work-related accident by a preponderance of the evidence. Marange v. Custom Metal Fabricators, Inc., 11-2678 (La. 7/2/12), 93 So.3d 1253, 1257. An employee may prove that an unwitnessed accident occurred in the course and scope of his employment by his testimony alone if the employee can prove (1) no other evidence discredits or casts serious doubt upon the worker's version of the incident; and (2) the worker's testimony is corroborated by the circumstances following the alleged incident. Id. Corroboration of the worker's testimony may be provided by the testimony of fellow workers, spouses, or friends, or by medical evidence. Ardoin v. Firestone Polymers, L.L.C., 10-245 (La. 1/19/11), 56 So.3d 215, 219.

The Court of Appeal concluded:

From the evidence presented at trial, we do not find the trial judge was manifestly erroneous in finding Mr. Temple discharged his burden of proof that he sustained injuries from an accident while working on the job on February 26, 2011. Mr. Temple's testimony was not discredited, and the circumstances following the accident were corroborated by Mr. Rickson's testimony and Mr. Martin's written statement. Furthermore, the medical evidence presented established objective findings that Mr. Temple had a back strain from his fall on February 26, 2011. Therefore, we will not disturb the trial judge's findings.

The relaxed burden of proof is clearly demonstrated in Franklin v. Calcasieu Parish Sch. Bd., 108 So. 3d 907 (La.App. 3 Cir. 2013):

Calcauieu Parish Sch. Bd. (“CPSB”) contends the Workers Compensation Judge’s (“WCJ”) finding that Ms. Franklin carried her burden of proof was erroneous because (1) the WCJ did not make a specific finding as to Ms. Franklin's credibility and (2) Ms. Franklin's claim was contradicted by her coworkers' testimony. In cases such as this one, where the fact finder concludes that a party carried her burden of proof, a credibility determination can be implied from that finding. Douglas v. Grey Wolf Drilling Co., 03-515 (La.App. 3 Cir. 11/5/03), 858 So.2d 830. Accordingly, CPSB's first contention lacks merit.

“An appellate court cannot reverse a WCJ's factual findings that are based on a reasonable credibility evaluation if the record "furnishes [a] reasonable factual basis for the trial court's finding." Marange, 93 So.3d at 1258 (quoting Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973)). When, as here, "there  is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable." Id.

“Contrary to CPSB's claims, Ms. Franklin's claim that she was injured in the course and scope of her employment in June 2011 is corroborated by circumstances following her alleged accident. Misty King, Ms. Franklin's daughter, testified her mother related to her that "she got hurt working the big machine at work." Ms. King further testified that after her mother injured herself, she observed Ms. Franklin had problems rising from a seated position and that she could not do housework or her normal daily activities.” Id.

“Shayne Matte, one of Ms. Franklin's coworkers, also corroborated her claim, though he initially seemed to contradict it. Counsel for CPSB asked Mr. Matte the following about whether she reported her accident to him:

She has told us that she suffered an accident at work early in June of 2011. She's told us that she was working that day with you, Jacob, and Linda Chesson. She's told us that she was using a floor stripping type machine when she -- when her legs split apart[,] and she said she pulled them back together. She's told us that when this happened, you and Jacob and Linda had gone down the hall somewhere to get water. She says that when you all got back as a group, the three of you all, that she immediately told all three of you that she had hurt herself while using the floor stripper. My question to you is: Did she ever report an accident of that type to you last summer?” Id.

Mr. Matte answered: "No, sir, not that I remember."

“During examination by counsel for Ms. Franklin, Mr. Matte testified that Ms. Franklin "complain[ed] a lot" of her back hurting during the month of June. He further testified that all the employees were involved in stripping the floors and that the women used the stripping machine. This testimony contradicted the testimony of their coworker Linda Chesson and their supervisor, Bonnie Guillory.” Id.

“The WCJ questioned Mr. Matte to clarify his testimony as to whether Ms. Franklin reported that she injured her back at work, asking: "You said you don't remember if Ms. Charlotte reported to you that she was hurt?" Mr. Matte responded: "I do remember her talking about her back being injured, but I don't remember her telling me that [it] was because of the stripping of the floor."Id.

“Ms. Franklin acknowledges that she has numerous health conditions, including diabetes mellitus II, fibromyalgia, and arthritis, and that she often complained of pain before injuring herself at CPSB, but she points to her medical treatment after her injury as additional corroboration of her claims. On June 2, 2011, she went to a nurse practitioner for a follow up of her diabetes. On that date, she complained "of severe low back pain, arthritis pain in hands and pain in general all over." She related that she had "been using heavy equipment at work this week[,] and [it] has really caused some pain." The Review of Systems portion of that office visit note states, in part: "Musco: Joint Pains - Leg Swelling-, Myalgia-, Pain in hand-, Pain in lower back- No Arthritis Pain, Edema, Muscle cramps, Other, Pain in ankle, Pain in hip, Pain in knee, Pain in mid back, Pain in neck, Pain in shoulder, Pain in wrist, Weakness." After conducting a physical examination of Ms. Franklin's back and extremities, the nurse practitioner noted "lumbar tenderness" and "Joints severe pain with palpation over bilateral SI joints.  Multiple moderate to severe tender points upper and lower extremities." Id.

“Comparison of Ms. Franklin's previous visit on May 2, 2011, to her June 2, 2011 visit shows her physical condition had clearly declined during that one month interval. The May 2, 2011 office visit note reflects that Ms. Franklin did not complain of back pain, hand pain, or joint pain on that date and that examination of her spine showed her spinal curvature was normal and her spine and musculature were "non tender." Ms. Franklin's condition continued to worsen after her June 2, 2011 visit. Her nurse practitioner prescribed physical therapy which initially progressed well. Approximately three months after beginning therapy, however, Ms. Franklin began complaining to her physical therapist of soreness and pain and "catching along the bilateral SI joint." He suspected the increased pain and catching were related to her use of the treadmill which he believed caused sacral inflammation. The physical therapist recommended that Ms. Franklin not be allowed to return to work due to the heavy lifting requirements of her job.” Id.

“Ms. Franklin was referred to an orthopedic surgeon who opined that she had a probable "HNP" (herniated nucleus pulposus) at L4-5 and recommended that she undergo an MRI and attend physical therapy. CPSB refused to pay the cost of this recommended treatment.   Our review of the record reveals no basis for the reversal of the WCJ's determination that Ms. Franklin carried her burden of proof. Evidence exists that casts doubt upon Ms. Franklin's testimony regarding her accident, but other testimony and medical evidence corroborate her claims.” Id.

“Ms. Franklin answered the appeal, seeking an award of attorney fees for the work performed by her attorney on appeal. We award $2,500.00 for the work her attorney performed on appeal.” Franklin v. Calcasieu Parish Sch. Bd., 108 So. 3d 907 (La.App. 3 Cir. 2013)

Claimant Failed to Prove an Accident

Mrs. Bollich worked as a manager for Family Dollar Store (Family Dollar). On August 17, 2002, she was unloading boxes of groceries stacked on a dolly when some of the boxes fell, with one striking her in the rib cage and another scraping her left leg.  She was initially treated in the emergency room on August 23, 2002, where she was given a rib belt and pain medication for complaints of chest pain caused by a box falling on her at work. She returned to the emergency room the next day, where she was diagnosed with a fracture of the seventh left rib. Thereafter, she returned to the emergency room several times in October of 2002, with chief complaints of headache pain radiating from the base of the skull, or top of the neck, to the head. At these visits, she did not relate her symptoms to a recent trauma, but rather she reported a history of hypertension and chronic headaches, and she referenced an automobile accident that occurred several years ago.

In the present case, the record reveals that Mrs. Bollich had a history of neck pain and headaches before this accident and that her hypertension and thyroid problems predated the accident as well. In her emergency room visits in October of 2002, Mrs. Bollich did not relate her symptoms to a recent, work-related trauma, but instead reported her history of hypertension, chronic headaches, and an automobile accident that occurred many years ago. In November of 2002, she applied for disability payments, stating that her neck and headache symptoms were not work related.

Two of Mrs. Bolllich's treating physicians, Dr. Molleston and Dr. Bernauer, did relate her neck injury to an accident of August 17, 2002; however, their description of the accident varies with that of the employer's accident report and Mrs. Bollich's testimony at trial.  Dr. Molleston's records reflect a history of falling and being struck by several boxes, but Mrs. Bollich testified that only one box hit her rib cage and the accident report does not mention a fall. Dr. Bernauer stated that his opinion as to causation was based upon an accident history in "which she fell hitting her head and having boxes fall on her." At trial, Mrs. Bollich denied that she told Dr. Bernauer that she hit her head, and the medical records make no reference to a head trauma.

On the record before us, we cannot conclude that the WCJ committed a legal error in not applying the presumption of causation, given Mrs. Bollich's pre-accident medical history, the lack of corroboration of a trauma-induced neck injury in the medical records most recent to the accident, and the various discrepancies of the accident history that appear in the later records. Accordingly, we find no manifest error in the WCJ's failure to award indemnity and medical benefits.

Degenerative Condition NOT an Accident

The Workers’ Compensation Act is not intended to cover injury or illness which is “simply a gradual deterioration progressive degeneration”.  The courts have struggled greatly with this issue.  When is an injury to a worker the cause of their physical breakdown as opposed to the general aging process?  As we have discussed, it is not the goal of workers compensation to provide health insurance for workers.  The purpose of workers’ compensation is to place the expense of work related injuries on the employer.  The question becomes, when is the employee simply wearing down due to old age or illnesses unrelated to his employment, or is the employment somehow the catalyst of the ultimate breakdown of the physical body of the workers? 

Cases on this issue are widely varied.  Often times the outcome is determined by the credibility of the employee.  Unfortunately, a very honest employee will often times testify themselves out of the possibility of workers’ compensation recovery. When an employee testifies emphatically that he did not have an accident, but the employee feels like their back condition started at work or was somehow related to work they will be denied workers’ compensation benefits.  If, on the other hand, an employee with a history of low back pain testifies that the back pain was materially different following a very minor accident occurring at work, the courts will often times give that employee recovery. 

Flat footedness provides an illustration of the difference between a degenerative condition and an accident.  In the case of McConnell v. City of Ruston, 660 So. 2d 100 (La.App. 2 Cir. Aug. 23, 1995), the Court of Appeal concluded that a worker with flat feet did not have an “accident”, and therefore, was not entitled to workers’ compensation

McConnell alleged that he has been totally disabled from working since February 1991, and by the effect of his work on a congenital foot condition, flat-footedness, which condition made him susceptible to developing painful lesions or calluses on the soles of his feet.

McConnell testified that he had no problems with his feet until October or November of 1990, shortly after he was assigned to the box truck crew and began spending more of his work time on his feet. He said he then began developing calluses which hurt "a little bit" at first, but "gradually" and "progressively" became more painful over the next few months, prompting him to seek treatment from a podiatrist on February 18, 1991.

McConnell attributed the calluses to his frequently having to step or jump a distance of 1 1/2 -3 feet to get in and out of the passenger compartment of the box truck, depending on whether he used the step on the side of the truck or simply jumped to the ground. He could not recall a specific incident or event that triggered the onset of the calluses.

With respect to the foot condition, which McConnell said developed gradually, and which was not alleged or shown to have resulted from an identifiable incident or event that may be construed as an "accident" under the w.c. law, the City contends compensation is legally barred, citing the statutory definition of the term "accident," LRS 23:1021(1), as amended by Acts 1989, No. 454, and this court's interpretation of the amended definition in Rice v. AT & T, 614 So. 2d 358 (La. App. 2d Cir. 1993). See discussion infra.

"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.

LRS 23:1021(1), as amended by Acts 1989, No. 454, effective Jan. 1, 1990. Our emphasis.

The emphasized language did not appear in the pre-1990 definition, leading this court to conclude, in Rice v. AT & T, cited supra, that the amendment reflected the legislature's deliberate intention "to . . . reduce the circumstances which amounted to an accident under [the pre-1990] law." Fn. 3, 614 So. 2d at 361. Our brackets.

McConnell gave this testimony about his foot calluses:

Q. When did your foot problem start; do you know?

A. It started -- my feet started bothering me between October and November a little bit, just slightly. But it progressively got worse.

Q. Now, where were you when you hurt your feet?

A. I don't know. Like I say, it started gradually hurting.

Q. Can you give me an idea of what caused it to hurt?

A. I think jumping in and out of that truck in cold weather, 20 degrees, your feet wet, jumping in and out of that truck. That's what I think it started from.

Q. But this started you think in October or November while you were on the job?

A. Yeah. Gradually starting to build up, yes. (Our emphasis.)

According to the office notes of McConnell's podiatrist, Dr. Reeves, McConnell's chief complaint on his initial visit, February 18, 1991, was "painful feet making work hard to accomplish." McConnell gave Dr. Reeves a description of his normal job duties for the City, and said his feet had been bothering him for about four months, but did not mention a particular incident or event that he associated with the onset of the calluses, other than "walking on and off the truck." McConnell was then 49 years old and had held other jobs that require frequent standing, such as finishing concrete and managing restaurants, for many years before he began working for the City.

In his deposition, Dr. Reeves explained the correlation between McConnell's flat-footedness and the painful calluses, or keratosis:

What I mean by flat feet, he has no arch. When his foot strikes the ground, it strikes it in a totally flat plane which is not . . . normal and is considered a deformity in the sense that it tends to promote these . . . calluses that he came in complaining and showing me were hurting him. And this type of foot problem [flat-footedness] . . . [is] something that he . . . had at birth, and it's not something that is . . . caused by a job.

He stated to me in his medical history that this had only bothered him for four months prior to my seeing him, and the type of foot that he has has been there since birth. . . . He may have been . . . undergoing  a change where . . . his foot type with the flat feet couldn't tolerate this kind of work anymore, and the end result is that these [calluses] start to arise.

And if I could use an analogy, it would be like a ballplayer who's a pitcher going out and pitching a baseball game and he's been doing it for quite a while, but he's getting on up [in] age [and] the amount of stress that he's putting on himself begins to work on his . . . muscles, bone structure, skin structure. As he gets older, his body can't tolerate [as] much stress as it once did, maybe, say, when he was [20] years old, and . . . if he continues to do the kind of regimen that he's required to do in either . . . pitching or, in this case, walking or jumping on and off a truck, the end  result is that the foot starts to break down and develop these . . . [calluses]. (Our emphasis and brackets.)

In a letter report that McConnell delivered to his supervisor shortly after his visit to Dr. Reeves, the doctor opined that McConnell's "normal work/walking on and off truck . . . has made a normally asymptomatic foot deformity [flat-footedness] crippling . . . Return patient to previous job description,  eliminating walking on and off vehicle." (Our emphasis.) The City had no job openings within these restrictions. McConnell elected not to return to his former duties, effectively terminating his employment with the City on February 20, 1991.

The hearing officer found that McConnell "accelerated his pre-existing foot condition while employed . . . [by] the City of Ruston. This condition occurred as the result of his jumping in and out of the garbage truck daily, as well as in and out of the [trash] bins in search of the boxes to be thrown out."

The evidence in this record, even when viewed most favorably to McConnell, does not prove the requisite element of accidental injury under § 1031, as that term has been legislatively defined in § 1021(1). Absent such proof, McConnell is not entitled to recover weekly benefits (§ 1221) or medical and travel expenses (§ 1203) for his foot injury.

Degenerative Condition an Accident

By constrast, the court in Dyson v. State Employees Group Ben. Program, 610 So. 2d 953 (La.App. 1 Cir. 1992) found the aggravation of preexisting flat footedness to be an accident:

Mrs. Dyson began work for the State as an "Examiner II", a sedentary job in which she typed the information needed to handle benefits claims.  Two years later, in March 1990, she began work as a "Clerk III".  This job required her to stand all day, except during allotted breaks, at the photocopier making copies.  In unrebuttable testimony, Mrs. Dyson stated that she began feeling very light pain in her feet approximately one month after taking on her new responsibilities.

On June 22, 1990, Mrs. Dyson testified that she felt very sharp pain "shoot" through her feet as she turned, or pivoted, to pick up a large bundle of copies.  The stack of copies was unusually large because the fiscal year was drawing to a close.  The bundle was approximately two feet thick.  Normally these stacks were no more than approximately two inches thick.  However, Mrs. Dyson also testified that the weight of the copies did not contribute to her episode of pain, but that the turning or pivoting movement alone caused her pain.

Mrs. Dyson notified her immediate supervisor on Monday, June 25th, and was told to take it easy for two days.  When Betty Browning,  the office manager, returned from sick leave on Wednesday, June 27th, Mrs. Dyson was told to resume her former duties even though her feet were still swollen and painful.  On Friday, June 29th, Mrs. Dyson went to see Dr. Kucharchuk, an orthopedic surgeon, who prescribed orthotic lifts for her to wear in her shoes, and who told her not to stand for more than one hour at a time.

This was a restriction that neither Betty Browning nor the State were  apparently willing to honor.  Mrs. Dyson was fired on July 24, 1990, after her sick leave expired and a pretermination hearing was not resolved in her favor.

Dr. Kucharchuk testified by deposition and stated that Mrs. Dyson has flat feet, making her more prone to foot problems caused by prolonged standing.  He further stated that he diagnosed her problem as plantar fasciitis, an inflammation in the heel area common in people like Mrs. Dyson who are overweight, flatfooted, and required to stand on their feet for prolonged periods of time.  Dr. Kucharchuk further explained that this is a cumulative trauma disorder that is nonapparent until sufficiently aggravated by, for example, prolonged standing when it becomes apparent by pain. Dr. Kucharchuk stated that Mrs. Dyson's flat feet were not caused by prolonged standing, as that is a developmental defect, but that the work activities she engaged in caused her flat feet to result in plantar fasciitis.

The State contends that these facts show that Mrs. Dyson had a gradual or progressive degeneration of her feet of the type meant to be excluded from worker's compensation coverage by the amendment to La. R.S. 23:1021(1)'s definition of accident because there is no actual, identifiable, or precipitous event marking the development of her condition.  The State contends that the sharp pain Mrs. Dyson experienced is insufficient, alone, to constitute an accident because "in every gradual, progressive infirmity there must be some point at which the full-blown condition manifests itself."

The State argues that the sudden onset of pain in Mrs. Dyson's feet does not satisfy the requirement that there be an unexpected, unforeseen, actual, identifiable,  and precipitous event because all diseases progress to this point.  This argument is wholly lacking in merit.  At no time in this case has Mrs. Dyson claimed that the mere onset of her pain constituted an "event" such as that contemplated by the definition of accident.  In this case, the "event" would be the pivoting or turning movement Mrs. Dyson made which immediately preceded her pain. It may be true that all diseases progress to this point, but, to follow the State's rationale, this would mean that no disease could be said to result from an "event".

The State also argues, even if the onset of her pain was sudden and traceable to a single event, that Mrs. Dyson's injury is nothing more than a gradual deterioration or progressive degeneration of her already flat feet. In support of its contentions, the State relies heavily upon the term Dr. Kucharchuk applies to plantar fasciitis: cumulative trauma disorder.

The term reflects the development of plantar fasciitis. It is a condition that develops over time as a result of nonapparent stress that will eventually signal the appearance of the mature condition through sudden pain. This, Dr. Kucharchuk testified, is what happened  to Mrs. Dyson after standing on her feet for eight hours a day for several months when, upon turning and feeling sharp pain "shoot" through her feet, she became aware of her condition.  Dr. Kucharchuk's description of Mrs. Dyson's injury appears to match this latter part of the definition of accident, because her injury is, partially, the result of a gradual deterioration or progressive degeneration of her already flat feet.

However, as Mrs. Dyson correctly argues, an otherwise healthy employee with a preexisting condition is entitled to benefits if she can prove that her work contributed to, aggravated, or accelerated her injury.  This is still the meaning of the last clause of section 1021(1), which requires that an injured employee be able to identify the event marking the time when one can identify an injury.  In this case, it was the pivoting movement Mrs. Dyson made.  It may be true, as the State has suggested, that Mrs. Dyson might have eventually reached the same point without an identifiable, on-the-job injury.  But the suggestion in no way alters the fact that Mrs. Dyson can, and has, identified the moment her preexisting condition became an injury through her accident.

Cases suggesting that the amendments to section 1021(1) were meant to exclude from coverage people like Mrs. Dyson, and many others, who are worn down by their work rather than immediately crippled by it are not consistent with the purpose of the worker's compensation scheme, and are not to be followed.  See Nelson v. Roadway Express, Inc., 573 So.2d 591, 595 n.3 (La. App. 2d Cir.), reversed on other grounds, 588 So.2d 350 (La. 1991). Considering the nature of Mrs. Dyson's injury in light of these amendments, we are still able to find that Mrs. Dyson did suffer an accident within the meaning of La. R.S. 23:1021(1), and is, therefore, entitled to worker's compensation benefits.

Presumption of Causation

The employer takes the employee as he finds him. The fact that an employee is predisposed to be injured is not a defense to a workers’ compensation claim.  This has also been referred to as the eggshell employee.  An employee that is so fragile that any physical assault to the employee will cause a physical breakdown.  The rule has been stated, that if an otherwise healthy employee has the onset of symptoms, and disability following a very minor incident, there is presumption that the physical breakdown is caused by the injury.  This standard has been stretched to incredible limits by the courts.  An employee is considered to be in good health, if they have no symptoms even if the underlying disease is present in the employee long before the injury.  Therefore, if an employee has degenerative disc disease in his low back and this degenerative disc disease has been present for many years, but the employee claims that he was asymptomatic up to the time that he has a very minor accident at work the employer buys the entire liability of the degenerative disc disease.  For example, a 55 year old man with severe degenerative disc disease in his low back, picks up a 5 pound box of paper, and alleges that he feels a pop in his back with the onset of debilitating pain from that point forward.  The courts have routinely found that this type of accident places liability on the employer for the entire treatment and disability associated with the obviously preexisting degenerative disc disease because the disc disease is aggravated by a “injury”.   The presumption of causation has been discussed by the courts as follows:

"An employee in a worker[s'] compensation action has the burden of establishing a causal link between the work-related accident and the subsequent disabling condition." Miller v. Roger Miller Sand, Inc., 94-1151, p. 6 (La. 11/30/94), 646 So.2d 330, 334.  An employee's disability is presumed to have resulted from the accident if before the accident, the injured employee was in good health, but commencing with the accident, symptoms of the disabling condition appeared and continuously manifested themselves afterwards. Walton v. Normandy Village Homes Ass'n, Inc., 475 So.2d 320 (La.1985). However, the presumption requires either that there is sufficient medical evidence to show  there to be a reasonable possibility of causal connection between the accident and disabling condition, or that the nature of the accident, when combined with the other facts of the case, raises a natural inference through human experience of such a causal connection.  Brown v. Town of Ferriday, 76 So. 3d 155, 157-158 (La.App. 3 Cir. 2011)

An example of the courts stretching the presumption of causation to the limits occurs in the case of Hammond v. Fidelity & Casualty Co., 419 So. 2d 829 (La. 1982).  That court found that a preexisting cancerous tumor was aggravated by trauma:

As the facts related above illustrate, the plaintiff did not suffer from any apparent disabilities or abnormalities in his upper left arm until he experienced the mechanical trauma to that portion of his left arm. Almost immediately after the trauma the plaintiff began experiencing the symptoms of swelling and pain in the same region of his upper left arm where he had sustained the mechanical trauma. Although the symptom of swelling subsided within the first week, it did not totally disappear and it continuously manifested itself until the swollen mass was removed by the wide excision. The plaintiff continues to suffer from an aching pain in this area. Additionally, the evidence, both medical and non-medical, shows that there is a reasonable possibility of causal connection. Specifically, Dr. Gore, the oncologist, in a letter and in his testimony indicated  that there was a possibility that the trauma caused the tumor to hemorrhage internally resulting in a manifestation of the tumor not previously experienced. He felt that the tumor was preexisting, but was sub-clinical (not perceivable by a layman or a doctor upon physical examination) prior to the trauma.  The fact that a condition is preexisting does not preclude recovery for the disabled employee; the employer takes the employee as he is, and the fact that the disease alone might have disabled the employee in its ordinary course of progress is not the inquiry. The employee's disability is compensable if a preexisting disease or condition is activated or precipitated into disabling manifestations as a result of a work accident. Allor v. Belden Corp., supra at 1236Johnson v. The Travelers Insurance Co., 284 So. 2d 888, 891 (La. 1973)Behan v. John B. Honor Co., 143 La. 348, 351, 78 So. 589, 590 (1917). The sequence of events and Dr. Gore's letter and testimony establish a reasonable possibility of causal connection between the accident and the disabling condition. 

The lower courts based their decisions upon the assertions of Dr. Gunderson, Dr. Gore and Dr. Romsdahl that in their opinion a trauma could not cause a tumor and that trauma would have no effect upon the eventual progression of the disease. The lower courts believed that the medical evidence was sufficient to deny compensation. They failed to distinguish the "medical" meaning of cause from the "legal" meaning of cause.  When the doctors speak  of cause they are essentially speaking of etiology--the origin of disease; what initially causes a disease.  When courts and lawyers speak of cause they are concerned with the question of whether the particular incident in question contributed to the plaintiff's disability by making manifest symptoms previously unnoticed. "Causation is not necessarily and exclusively a medical conclusion. It is usually the ultimate fact to be found by the court, based on all the credible evidence." Haughton v. Fireman's Fund American Insurance Companies, 355 So. 2d 927, 928 (La.1978)

As in Haughton v. Fireman's Fund, supra, there is no separate, intervening cause of the worker's disability in this case. Haughton stumbled, fell and broke his thigh; it was discovered that his recovery was complicated by the existence of multiple myeloma. Here, Hammond's arm became swollen and painful immediately after the trauma at exactly the location of the tumor, which was surgically removed along with the surrounding muscle tissue. In the three and one-half months following the accident, Hammond's arm became progressively worse. The only "intervention" was the apparent activation, commencing immediately after the trauma, of the preexisting tumor. The accident might not have caused the sarcoma any more than Haughton's fall caused his myeloma, but in neither case did the defendant establish that the accident did not cause the disability. To the contrary, the record in this case is clear that Hammond is entitled to compensation benefits "for injury producing permanent total disability . . ." R.S. 23:1221(2)

Notice that the burden of proof is placed on the employer to show that the accident was not the cause of the injury.  This is the common holding of the courts of the State of Louisiana, despite the Louisiana Supreme Court’s claim that the burden of proof in a workers’ compensation claim is not relaxed.  In truth, the burden of proof shifts and is placed on the defendant in many instances. 

Perhaps the best illustration of “take your employee as you find them” is the epileptic seizure cases.  In Fontenot v. Wal-Mart Stores, Inc., 870 So. 2d 540 (La.App. 3 Cir. Apr. 7, 2004) the accident was described as follows:

She explained that one of her duties each morning was to take bread from the bakery to the deli department for display. Ms. Fontenot testified that the last thing that she remembers from the day of the accident was that shortly before eight o'clock that morning, she said hello to a co-worker while taking a load of bread to the deli. The record indicates that while Ms. Fontenot was in the process of delivering the bread, she fell to the floor and hit her head. One of Ms. Fontenot's co-workers testified that she saw Ms. Fontenot fall to the floor as if she had fainted. Several others testified that when they arrived on the scene after Ms. Fontenot fell, it appeared that she was having a seizure. The record reflects that she was bleeding profusely from the head and was moaning in pain.

The plaintiff's accident was not the fainting spell, heart attack or slip which may have caused her to fall. Plaintiff's accident was the fall itself and this is so regardless of the precipitating reason therefor. Guidry, 378 So. 2d at 940.

An otherwise compensable accident does not cease to arise out of the employment simply because it can be attributed to a physical infirmity of the employee. Guidry v. Serigny, 378 So. 2d 938 (La.1979). It is clear that a worker's pre-existing condition does not bar his recovery under our worker's [sic] compensation statute. Id. Moreover, the jurisprudence is replete with statements that an employer takes the employee as he finds him. An abnormally susceptible worker is entitled to the same protection as a healthy worker. Allor v. Belden Corp., 393 So. 2d 1233 (La.1981).

Paraphrasing Guidry v. Serigny, the panel held that "[the claimant's] accident was not the epileptic attack which may have caused him to fall. [The claimant's] accident was the fall itself and this is so regardless of the precipitating reason therefor." Id. at 642. 2

Parenthetically, the Morris court observed that the claimant was prescribed Dilantin for his seizures but did not regularly take his medicine. Id. at 641-642. The claimant's failure to take his medication as prescribed did not preclude his recovery.

The above case law makes it very clear that the courts will go to great links to find an employee with a preexisting condition to have had a work accident despite the work activity being a very small contributor to the ultimate disability. 

Heart Attack and Stroke

One area where employers have greatly limited workers’ compensation benefits is when a worker is disabled by heart attack or stroke.  This is true even when the heart attack or stroke occurs in the course and scope and arising out of employment.  When the injury is a heart attack or stroke the employee is not given the benefit of “take your employee as you find them” and the employee must show that physical work stress and not some other cause is the predominate and major cause of the heart attack or stroke. 

The Workers’ Compensation Act Section 23:1021 states:

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.

In Young v. Capitol Concrete Prods., 858 So. 2d 513 (La.App. 1 Cir. June 27, 2003) the worker’s death at work caused by a heart attack was not compensable as he was not engaged in extraordinary physical work stress.

Willie Young, Jr., was employed as a truck driver by Capitol Concrete Products, Inc. On March 9, 2001, after having reported to work, Mr. Young was either sitting in the dispatchers office or standing outside talking with a co-worker while awaiting the arrival of a forklift operator to load his trailer, when he suffered a heart attack and died.

Both prongs of the test set forth in La. R.S. 23:1021(7)(e) must be satisfied for the claimant to prevail. Thus, Mrs. Young had the burden to prove by clear and convincing evidence that Mr. Young's physical work stress on the day of his fatal heart attack was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in the truck driving occupation. Mrs. Young also had the burden to demonstrate that the physical work stress or exertion, and not some other source of stress or pre-existing condition, was the predominant and major cause of Mr. Young's fatal heart attack.

In a workers' compensation case, a claimant must establish that the disabling or fatal injury was caused by an accident which arose out of and occurred during the course of the injured or deceased workers' employment. La. R.S. 23:1031;  Guidry v. Chevron U.S.A., Inc., 461 So. 2d 625, 626 (La. App. 1 1984). As already discussed above, Mr. Young was not involved in a physical work stress that was extraordinary and unusual in comparison to the stress or exertion experienced by the average truck driver and thus, [physical work stress] was [not] the predominant and major cause of Mr. Young's heart attack and subsequent death. As a result, Mr. Young's heart attack and death were noncompensable under the Workers' Compensation Act.

Mental Injury

Mental injuries are another area where employers have limited the coverage of workers’ compensation benefits.  It is understood by the courts that mental injuries are easily faked and the cause of a mental injury is very difficult to determine.  As such, the Louisiana legislature has greatly limited workers’ compensation recovery for mental injuries.  The Louisiana Workers’ Compensation Act R.S. 23:1021 defines mental injury as follows:

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.

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.

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.

In Adams v. Temple Inland, LA, 858 So. 2d 855 (La.App. 3 Cir. Nov. 5, 2003) mental injury due to actions occurring over a prolonged period were not compensable.

The undisputed facts establish that Ms. Adams began working for Temple Inland, LA (Temple Inland) in late 2000 or early 2001 as a utility hand. Almost immediately after she began her employment, her supervisor, David James "Red" Harper, and a co-worker, Kevin St. Romain, began sexually harassing her. Initially, the harassment took the form of "little comments in front of all the . . . guys in the break room." For example, when Ms. Adams would bend over, Harper and St. Romain would talk about "what they would like to do." Another co-worker, Syrina Silas, also began making comments to Ms. Adams's male co-workers that Ms. Adams was not married and "needed to be laid." Harper carried the harassment even further by requiring Ms. Adams to leave her workstation at times and spend time in his office. There, he would describe to her the various ways in which he wanted to have sex with his wife and would complain about his wife's unwillingness to engage in these sexual activities.

It did not take long for Harper's and St. Romain's harassment to escalate beyond vulgar comments to propositions and threats. When Ms. Adams began refusing to enter Harper's office with him, he warned her that he could make her job easy or difficult. He also began propositioning Ms. Adams to have sex with him, which she refused to do. Despite her rejection of his advances, Harper continued to press Ms. Adams for sexual favors, explaining to her that her job would be in jeopardy if she did not submit. Additionally, in the presence of Ms. Adams's co-workers, Harper "offered to get a hotel room so the guys could get [her] out of their system." On at least one occasion, Harper required Ms. Adams, who worked the night shift, to stay late for clean-up duties and threatened to take her to a place where no one would be able to hear her screams and then rape her. Ms. Adams's fears in this regard were exacerbated by a rumor that Harper had sexually exploited another female employee by having sex with her in the sleeper cab of a truck at work and then requiring her to give sexual favors to other men at work, under the threat of job loss. St. Romain also threatened to rape her and to burn her house down.

Moreover, the sexual harassment by Harper and St. Romain turned physical as well. Harper confined Ms. Adams to "areas where he could just get to [her]," and "he would pin [her] in a corner, and [she] would get felt up." Additionally, Harper "would grab himself and ask [her] if [she] wanted some." St. Romain also groped Ms. Adams.

In June of 2001, Ms. Adams reported the harassment to Temple Inland's human resources department. To its credit, shortly thereafter, Temple Inland terminated Harper's employment and suspended and then transferred St. Romain and Ms. Silas.

The court found that the claimant failed to prove her injury was caused by a sudden, unexpected and extraordinary situation; in fact, it was due to events that occurred over an extended period of time, not by a sudden, unexpected or extraordinary event. Claimant testified that the various events and occurrences of sexual harassment stretched from January 2001 to June 2001. Based on the testimony presented, the court is unable to identify a "sudden, unexpected and extraordinary" occurrence. This court by no means condones the behavior of the defendants' employees; however, this claim does not meet the conditions established under the Workers' Compensation Act to be a compensable claim

Nothing in the Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner, or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act. (Emphasis added.)

While we deplore the conduct of Ms. Adams'  co-workers, we do note that as soon as she reported their offending actions to management, her chief protagonist was fired and the other two, lesser offenders, were first suspended, then transferred. Our review of the statutory scheme and the jurisprudence convinces us that, while Ms. Adams may have a legal remedy for the mental injury she sustained, that remedy does not lie under the Workers' Compensation Act.

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