Category: Medical

Coronavirus and Workers Compensation in Louisiana

In Louisiana, workers compensation benefits can be owed if an employee sustains an accident or develops an occupational disease arising out of and occurring during the course and scope of their employment.  The definitions and burdens of proof differ for each.

An accident is defined by La. R.S. 23:1021 as:

(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.

An occupational disease is defined by La. R.S. 23:1031.1 as:

B. An occupational disease means only that disease or illness which is 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. Occupational disease shall include injuries due to work-related carpal tunnel syndrome. Degenerative disc disease, spinal stenosis, arthritis of any type, mental illness, and heart-related or perivascular disease are specifically excluded from the classification of an occupational disease for the purpose of this Section.

C. Notwithstanding the limitations of Subsection B hereof, every laboratory technician who is disabled because of the contraction of any disease, diseased condition, or poisoning which disease, diseased condition, or poisoning is a result, whether directly or indirectly, of the nature of the work performed, or the dependent of a laboratory technician whose death is the result of a disease, diseased condition, or poisoning, whether directly or indirectly, of the nature of the work performed shall be entitled to the compensation provided in this Chapter the same as if said laboratory technician received personal injury by accident arising out of and in the course of his employment.

As used herein, the phrase “laboratory technician” shall mean any person who, because of his skills in the technical details of his work, is employed in a place devoted to experimental study in any branch of the natural or applied sciences; to the application of scientific principles of examination, testing, or analysis by instruments, apparatus, chemical or biological reactions or other scientific processes for the purposes of the natural or applied sciences; to the preparation, usually on a small scale, of drugs, chemicals, explosives, or other products or substances for experimental or analytical purposes; or in any other similar place of employment.

Except as otherwise provided in this Subsection, any disability or death claim arising under the provisions of this Subsection shall be handled in the same manner and considered the same as disability or death claims arising due to occupational diseases.

In general, if an employee can prove that they were exposed to Coronavirus at work, and that the particular exposure caused them to contract Coronavirus disease, they may be able to prove a compensable accident.  The burden of proof is a tough one, of course, because it would seem to be nearly impossible for an employee who contracts the Coronavirus to prove the contraction resulted from work as opposed to exposure in some other environment.  However, it is important to note that one Louisiana court did find that a claimant was able to meet that burden when he contracted the West Nile Virus by proving to the satisfaction of the Workers Compensation Judge, rather incredibly, that a particular mosquito bite occurring at work was the cause.  Allen v. Graphic Packaging,   51,080 (La. App. 2nd Cir. 1/11/17), 211 So.3d 1219.   If a claimant is able to prove the occurrence of an accident, then the usual workers compensation medical and indemnity benefits would be payable depending on medical needs, disability status, or even death benefits if the employee expired as the result of such an accident.

For an employee to be able to prove that their contraction of Coronavirus disease fits within the definition of an occupational disease, they would have to prove that it was “due to causes and conditions characteristic of and peculiar to” their employment.  Some healthcare workers and others in related fields who become infected would seem to have an easier time proving their cases than others whose work would not customarily lead to such exposures.  The definition above includes laboratory technicians (which could be an expansive list as defined) who contract a disease as the result exposure to something that they are working on/with.  The statute also provides some timing elements for claim filing and causation presumption, most of which would not seem to apply because of novel nature of the current Coronavirus outbreak.  As with claims asserted as accidents, the usual medical and indemnity benefits would be payable depending on the circumstances of the individual worker.

For additional details on the Allen case, please review Keogh Cox blog “One Particular Mosquito: West Nile Virus Found to be a Compensable Workers’ Compensation Claim” by clicking here:  https://keoghcox.com/one-particular-mosquito-west-nile-virus-found-compensable-workers-compensation-claim/.

TORTS: “LOSS OF CHANCE” CLAIM LIMITED TO MEDICAL MALPRACTICE

In Niang v. Dryades YMCA School of Commerce, Inc., 19-0425 (La. App. 4 Cir. 12/4/19), – – – So.3d – – -, the Fourth Circuit declined to expand the “loss of chance of survival” cause of action to non-medical defendants.  Despite a statute which arguably supported such a cause of action under case facts, the Fourth Circuit felt constrained to reject the claim.

On March 7, 2017, Mouhamadou Niang collapsed while playing basketball at a YMCA.  Mrs. Niang was certified in cardiac life support, and requested an automated external defibrillator (“AED”) to attempt to resuscitation.  Mrs. Niang was advised that an AED machine was not available.  Thereafter, Mr. Niang was transported to University Medical Center where he died on March 11, 2017 secondary to cardiac arrest.

Mrs. Niang sued the YMCA for failing to have an AED machine on premises and asserted multiple claims including a loss of chance of survival claim.  She contended that the lack of the defibrillator contributed to her husband’s death.  Under La. R. S. 40:1137.3, all “physical fitness facilities” such as the YMCA are required to have an AED available.

The YMCA filed a Motion for Partial Summary Judgment which was granted.  In its reasons, the trial court held that the “loss of chance” cause of action was limited to claims raised in a medical malpractice context.  The Fourth Circuit affirmed.

The Fourth Circuit found that, although styled as a Motion for Partial Summary Judgment, the YMCA had actually raised an Exception of No Cause of Action and therefore analyzed the issue as a pure question of law.  The Fourth Circuit reviewed prior Louisiana Supreme Court decisions providing a right to recover damages for a loss of chance of survival in the medical malpractice context including the decision in Hastings v.  Baton Rouge Gen. Hosp., 498 So.2d 713 (La. 1986). In Hastings, the Louisiana Supreme Court identified a cause of action where a stab wound victim with weak vital signs was transferred from the hospital after the patient lacked insurance. The Hastings court commented on the reduced burden of proof in such cases:

“The law does not require the plaintiff to prove to a certainty that the patient would have lived had he received more prompt diagnosis and treatment for the condition causing the death.”

The Fourth Circuit identified no cases directly “on point” when the defendant was not a medical practitioner.  Therefore, the Fourth Circuit gave consideration to a noted Oklahoma decision in Hardy v. Southwestern Bell Tel. Co., 910 P.2d 1024 (Okla. 1996) which addressed the issue.  The court in Hardy considered the public policy implications associated with expanding the loss of chance of survival claim to non-medical cases and reasoned that the policy concerns which justify a reduced burden of causation in medical malpractice claims do not transfer to ordinary negligence cases.  The cause of action against medical providers is supported by the “special relationship” of the physician and the patient.  No such relationship exists in a non-medical setting.

Citing to Hardy, the Niang court determined that allowing a loss of chance of survival claim with general negligence would allow for improper speculation as to a person’s chance of survival.  Identifying no controlling cases and the lack of any statute creating a cause of action in non-medical malpractice cases, the Niang court concluded that loss of chance of survival claims are not supported outside of the medical context.


Collin is a Keogh Cox partner who litigates injury, commercial, and legal malpractice disputes. He lives in nearby Zachary, Louisiana with his wife Melissa and three all too active children. He is an outdoorsman, a league tennis player, a cook, and a hobbyist writer.