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Coronavirus and Workers Compensation in Louisiana

Published on: March 19, 2020

In Louisiana, workers compensation benefits can beowed if an employee sustains an accident or develops an occupational diseasearising out of and occurring during the course and scope of theiremployment. 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 ismore 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 illnesswhich is due to causes and conditions characteristic of and peculiar to theparticular trade, occupation, process, or employment in which the employee isexposed to such disease. Occupational disease shall include injuries due towork-related carpal tunnel syndrome. Degenerative disc disease, spinalstenosis, arthritis of any type, mental illness, and heart-related or perivasculardisease are specifically excluded from the classification of an occupationaldisease for the purpose of this Section.

C. Notwithstanding the limitations of Subsection B hereof, everylaboratory technician who is disabled because of the contraction of anydisease, diseased condition, or poisoning which disease, diseased condition, orpoisoning is a result, whether directly or indirectly, of the nature of thework performed, or the dependent of a laboratory technician whose death is theresult of a disease, diseased condition, or poisoning, whether directly orindirectly, of the nature of the work performed shall be entitled to thecompensation provided in this Chapter the same as if said laboratory technicianreceived personal injury by accident arising out of and in the course of hisemployment.

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

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

In general, if an employee can prove that they were exposed toCoronavirus at work, and that the particular exposure caused them to contractCoronavirus 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 benearly impossible for an employee who contracts the Coronavirus to prove thecontraction resulted from work as opposed to exposure in some otherenvironment. However, it is important to note that one Louisiana courtdid find that a claimant was able to meet that burden when he contracted theWest Nile Virus by proving to the satisfaction of the Workers CompensationJudge, rather incredibly, that a particular mosquito bite occurring at work wasthe cause. Allen v. Graphic Packaging, 51,080 (La.App. 2nd Cir. 1/11/17), 211 So.3d 1219. If a claimant isable to prove the occurrence of an accident, then the usual workerscompensation medical and indemnity benefits would be payable depending onmedical needs, disability status, or even death benefits if the employeeexpired as the result of such an accident.

For an employee to be able to prove that theircontraction of Coronavirus disease fits within the definition of anoccupational disease, they would have to prove that it was “due to causes andconditions characteristic of and peculiar to” their employment. Somehealthcare workers and others in related fields who become infected would seemto have an easier time proving their cases than others whose work would notcustomarily lead to such exposures. The definition above includeslaboratory technicians (which could be an expansive list as defined) whocontract a disease as the result exposure to something that they are workingon/with. The statute also provides some timing elements for claim filingand causation presumption, most of which would not seem to apply because ofnovel nature of the current Coronavirus outbreak. As with claims assertedas accidents, the usual medical and indemnity benefits would be payabledepending on the circumstances of the individual worker.

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

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Keogh Cox & Wilson, Ltd. provides this blog as a public service for general information only. The materials contained herein may not reflect the most current legal developments or even express the opinion of all or even most of Keogh Cox attorneys. Such material does not constitute legal advice or form any attorney-client relationship. Keogh Cox and all contributing author(s) expressly disclaim all liability to any person with respect to the contents of this Web site and Blog and expect that no reliance will be made upon the information provided.

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Insight

Louisiana Supreme Court Finds Business Interruption Coverage Does Not Apply to Losses Attributable to COVID-19

The COVID-19 pandemic had a profound impact on the global economy. Louisiana was not spared, and many businesses had to close as sales to their customers slowed or stopped altogether. Not surprisingly, the question arose regarding whether business interruption insurance would provide coverage to businesses in this situation. The Louisiana Supreme Court recently was asked this question in Cajun Conti, LLC v. Certain Underwriters at Lloyd’s, London and found that the policy at issue did not provide such coverage.

The mayor of New Orleans issued a proclamation on March 16, 2020, that prohibited most public and private gatherings. This applied to restaurants, whose business initially was limited to takeout and delivery services. Before the pandemic, Oceana Grill, a restaurant located in the French Quarter, could serve up to 500 customers at one time. However, it had to limit its business to takeout and delivery services when the mayor’s proclamation was announced. Because of social distancing guidelines, it remained at 60% or less capacity throughout the pandemic.

Oceana maintained a commercial insurance policy with loss of business income coverage and filed suit to request a declaratory judgment that the “policy provides business income coverage from the contamination of the insured premises by COVID-19.” Oceana’s insurer argued that there was no coverage under the policy because COVID-19 did not cause “direct physical loss of or damage to property” under the policy’s terms.

The trial court denied Oceana’s request for declaratory relief at trial. The appellate court reversed and found the policy’s terms ambiguous because it held “direct physical loss” could mean loss of use of the property. Because the pandemic prevented the full use of the property due to capacity limitations, the appellate court found coverage was triggered.

The Supreme Court disagreed and reversed the appellate court’s decision, finding its focus on the use of the property to be misguided. The Court found that suspension of operations “caused by direct physical loss of or damage to property,” as defined by the policy, required “the insured’s property to sustain a physical, meaning tangible or corporeal, loss or damage.” The Court noted that the restaurant’s physical structure was not lost or damaged because of the pandemic. COVID-19 restrictions did not cause damage or loss that was physical in nature. Therefore, the policy did not provide coverage for loss of business income.

Whether a policy affords coverage depends on the terms and conditions of each policy and the facts of each case. However, in light of this decision, businesses with insurance policies that include provisions with language like that at issue in Cajun Conti should not anticipate coverage for loss of business income allegedly caused by the COVID-19 pandemic.

Case References:

Cajun Conti LLC v. Certain Underwriters at Lloyd's, London, 2022-01349 (La. 3/17/23), 2023 WL 2549132.

Insight

The “Great Flood of 2016”--Update and Resources

“Disaster Declaration” Expanded. The list of parishes now declared disaster areas by the federal government has increased to include the following parishes: Acadia, Ascension, East Feliciana, Iberia, Lafayette, Pointe Coupee, St. Landry, and Vermilion.

http://gov.louisiana.gov/news/additional-parishes-added-to-federal-disaster-declaration-8-16-16

Potential Tax Implications for Flood Victim. For those insured, it is critical that you document your losses with as much detail as possible; serial numbers, make/model/description—the more detail the better. Keep receipts and credit card statements. Time-dated photos are also important. Even those without flood insurance should do the same as it may assist in obtaining FEMA assistance. However, the same documentation of your losses could also help to reduce your tax exposure. The attached link provides key information and outlines the impact the flooding may have on tax-filing and other deadlines.

https://www.irs.gov/uac/tax-relief-for-victims-of-severe-storms-flooding-in-louisiana

Insight

Hurricane Ida: Louisiana Department of Insurance Implements Mediation Program

In the wake of Hurricane Ida, the Louisiana Department of Insurance (LDI) implemented a mediation program to assist policy holders with disputed insurance claims. Effective October 18, 2021, the program was implemented to assist in the prompt and reasonable settlement of disputed insurance claims.

The program is open to all authorized property and casualty insurers, as well as all surplus line insurers for personal lines residential insurance claims up to $50,000.00. Both the insurer or policyholder can submit a written request for mediation; the opposing party is free to accept or deny the invitation. If initially denied, the parties are free to later opt to participate.

If both parties agree to mediation, a mediator will be assigned and within 30 days a mediation will be scheduled at a local Mediation & Arbitration Professional Systems (MAPS) or Perry Dampf Dispute Solutions location in the Baton Rouge or New Orleans area. The initial mediation session allows for 90-minutes; however, parties are allowed to continue the mediation beyond the initial session at the agreement of the mediator.

The mediation program is free to all policyholders and a $600 fee is assessed to the insurer for the first 90-minute mediation session. If the parties and mediator agree to continue the mediation beyond the initial 90-minute session, additional fees will be assessed for the mediator’s services. The parties are to determine among themselves who will be responsible for the additional costs.

The parties are required to provide all relevant documentation to the assigned mediator and a detailed explanation of the claim and any obstacles to resolution. The policyholder can represent themselves or through counsel. They are even encouraged to bring knowledgeable individuals such as adjusters, appraisers, or contractors.

If a resolution is reached, even just partial, both parties will reduce the agreement to writing and sign the agreement. The insurer will be required to furnish any required payment to the policyholder within ten (10) days of signing the agreement. If the parties only reach a partial agreement, they will be permitted to continue to use the mediation services and schedule future mediation dates.

At this time, the program is scheduled to continue through June 30, 2022.

Kirk L. Landry

Partner
Louisiana
Medical
Workers' Compensation