Tag: workers’ compensation

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/.

Is timing everything where workers compensation benefits are forfeited based on fraud? It depends…

In Moran v. Rouse’s Enterprises, LLC, 19-2392019(La. App.5 Cir. 12/26/19)- – – So. 3d – – -, the Louisiana Fifth Circuit held that there is a forfeiture of all benefits when a worker’s compensation claimant commits fraud, regardless of when the fraudulent conduct occurs. The court declined to follow opinions from the First and Third Circuits concluding otherwise.

In Moran, the claimant obtained treatment for injuries to her back, right knee, and right shoulder after a slip and fall at work for Rouses supermarket. In her deposition, the claimant Moran testified that she experienced knee pain only once before her fall; it was “years ago” and not “serious.” Moran also claimed that she experienced no prior shoulder or back pain. However, medical records established:

•             Complaints of knee pain on at least 8 separate occasions between 2012 and the job injury;

•             Complaints of right knee, right wrist, and back pain after a slip and fall in 2013; and

•             A right shoulder impingement diagnosis 2 months before the on-the-job accident.

Rouses and its workers compensation carrier affirmatively alleged a violation of La. R.S. 23:1208, Louisiana’s workers compensation fraud statute, following the claimant’s deposition. Paragraphs “A” and “E” of section 1208 provide in pertinent part:

A.            It shall be unlawful for any person… to willfully make a false statement or representation… for the purpose of obtaining or defeating any benefit or payment under…this Chapter.    

***

E.            Any employee violating this Section shall… forfeit any right to compensation benefits under this Chapter.

As part of their fraud defense, the defendants specifically denied responsibility for all worker’s compensation benefits, i.e. benefits that that might have otherwise been due both before and after the fraudulent deposition testimony.

Following trial, the workers compensation judge determined that Moran carried her burden of proving the occurrence of on-the-job injury and disability. Nevertheless, the trial court also ruled that the claimant made false statements for the purpose of obtaining workers compensation benefits in violation of section 1208, thereby forfeiting the right to both the pre and post-deposition benefits that she was claiming.

On appeal, Moran argued that the forfeiture requirement of section 1208 applies prospectively only. Moran cited opinions from the Louisiana First and Third Circuits. After addressing the statute and the case law, the Moran court affirmed the decision of the workers compensation judge finding that the forfeiture of benefits provided for in of Section 1208 is clear and unambiguous. The opinion states that “…if the legislature had intended to limit the application … it would have clearly expressed that in the statute.”

There are no Louisiana Supreme Court opinions which specifically address whether the Section 1208 forfeiture applies retroactively or prospectively only. Given the defined split in the Louisiana appellate courts, the issue is ripe for consideration by the state’s highest court.


Ed is a Keogh Cox partner who litigates Worker’s Compensation, automobile and premises liability as well as subrogation claims. He is an avid runner and enjoys traveling with his wife Jennifer and their three children.

The Louisiana Supreme Court rules that amount billed by healthcare providers beyond what has been paid by a Workers Compensation insurer is NOT a collateral source that is recoverable against tort defendants

In a very important ruling by the Louisiana Supreme Court, a tort defendant is no longer liable for any “actual charges” by medical providers above the amount paid by a Workers Compensation insurer pursuant to promulgated Workers Compensation fee schedule . In Simmons v. Cornerstone Investments, LLC,  2018-cc-0735 (La. 5/18/19), the court concluded:

“…the amount of medical expenses charged above the amount actually incurred is not a collateral source and its exclusion from the purview of the jury was proper.” See http://www.lasc.org/opinions/2019/18-0735.CC.OPN.pdf

The court conducted a detailed analysis of the development of the collateral source rule under applicable jurisprudence noting that the genesis of the collateral source rule:

“Under the collateral source rule, a tortfeasor may not benefit, and an injured plaintiff’s tort recovery may not be reduced, because of monies received by the plaintiff from sources independent of the tortfeasor’s procuration or contribution. Under this well-established doctrine, the payments received from the independent source are not deducted from the award the aggrieved party would otherwise receive from the wrongdoer.” See Louisiana Dept. of Transp. & Dev. v. Kansas City Southern Railway Co., 02-2349, p. 6 (La. 5/20/03), 846 So.2d 734, 739.

Essentially, the court asks two questions when assessing whether the collateral source rule should apply. First, does the claimed benefit arise from some payment, wage deduction or other contribution by the Plaintiff that would diminish the plaintiff’s patrimony?  Second, will the goal of tort deterrence be promoted by allowing the windfall?  In a series of cases culminating in the case at bar, the court has been limiting the application of the collateral source rule in a number of contexts.

The court in Bozeman v. State, 03-1016 (La. 7/2/04), 879 So.2d 692, found that the collateral source rule did not apply when Medicaid was the payor such that the defendant could not be responsible for any amounts above what Medicaid paid to the provider. The court reasoned that it would be “unconscionable” to require taxpayers to pay the bills and then let a plaintiff recover the full undiscounted medical expenses and “pocket the windfall.” The court continued by noting in “Cutsinger v. Redfern, 08-2607 (La. 5/22/09), 12 So.3d 945, this court found the collateral source rule did not apply to prevent the plaintiff’s uninsured motorist carrier from receiving a credit for workers’ compensation benefits paid by her employer, even though the plaintiff paid for the UM coverage herself.” In Hoffman v. 21st Century North American Ins. Co., 14-2279 (La. 10/2/15), 209 So.3d 702, the court held that the collateral source rule does not apply to attorney-negotiated medical discounts. The court also looked at the US 5th Circuit in Deperrodil v. Bozovic Marine, Inc., 842 F.3d 353 (5th Cir. 2016), that the collateral source rule does not apply above any amounts actually paid by the employer in the context of the LHWCA.

In each of the instances outlined, the court noted that the patrimony of the plaintiff was not impacted by limiting recovery to the amount of medical bills actually paid. Moreover, the court noted that the goal of tort deterrence is not negatively impacted, and that allowing a plaintiff to recover a windfall in this context is tantamount to an award of punitive damages that are not recoverable absent statutory authority which is not present in this context.   The Simmons decision now extends that same logic to cases where a Workers Compensation insurer has paid the medical benefits pursuant to the Louisiana Workers Compensation Law.

This ruling will have significant impact on the evaluation, settlement and trial of tort cases that have corresponding Workers Compensation claims.

Submitted by John P. Wolff, III (Partner)

Volunteer Firemen “On the Hook” in Louisiana

The Louisiana Supreme Court recently held that the workers’ compensation tort immunity provided by LSA-R.S. 23:1032 does not apply to suits by one volunteer fireman against another volunteer. See Champagne v. American Alternative Insurance Corp., 12-1697 (La. 3/19/13), — So.3d —. LSA-R.S. 23:1036 provides that workers’ compensation is the sole and exclusive remedy provided to a volunteer fireman against a fire company. Champagne clarified that this immunity does not similarly apply to claims for personal injury brought by one volunteer fireman against another.