Biomechanical Testimony: Reliability Sinks Expert Testimony

Generally, Louisiana Workers’ Compensation laws provide coverage for an employee who sustains personal injuries by an accident arising out of and in the course of his or her employment. La. R.S. 23:1021(1) defines “accident” as:

"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."

In Rayborn, Sr. v. Continental Cement Company, LLC et al, the plaintiff-employee filed suit when the worker’s compensation carrier terminated benefits based on its assertion that the plaintiff’s left knee injury was not the result of an “accident” as defined in the statute. The evidence presented at trial established the following:

• After returning home from work one day, the plaintiff began to feel soreness behind his left knee and believed he “may have pulled a muscle.”
• The plaintiff sought medical attention at a local clinic 2 days later.
• The plaintiff told clinic staff that his “leg was hurting,” and that he “was at work climbing up and jumping down off of barges all week.”
• After returning from a pre-planned family trip one week later, the plaintiff told to his managers at work that he hurt his knee “some kind of way” and that he was “doing too much climbing up and jumping down from barges “and his knee “just started hurting.”
• The chart from follow-up clinic visits stated, “Patient had [an] injury while at work when he jumped from a height and later that day felt a discomfort in the left lateral knee.”
• Additional records noted the plaintiff “injured his knee on the job; however it was not readily apparent until [his] knee became stiff later that evening.”
• The plaintiff later consulted with an orthopedic surgeon whose initial chart entry stated, “Over the course of the week, his knee began bothering him in the patellofemoral area and it started to become tight and swollen.”

At the conclusion of trial, the workers’ compensation court ruled that the plaintiff successfully proved that he sustained a work-related injury of his left knee on a particular date by climbing and jumping while performing his work duties. On appeal, the workers’ compensation carrier argued that plaintiff’s assertion that he was injured “some kind of way” over the course of a week was not sufficient to meet the requirement of a specific, identifiable accident in the course and scope of employment under La. R.S. 23:1021(1).

In affirming the decision of the OWC judge, the appellate court highlighted numerous opinions from the Louisiana Supreme Court and other courts of appeal wherein the statutory definition of “accident” was liberally construed to reject an interpretation that excluded “those workers who are worn down, rather than immediately crippled by, their work.” The opinion notes that it is well-settled in the case law that an “accident” exists when “heavy lifting or other strenuous efforts, although usual and customary, cause or contribute to a physical breakdown or accelerate its occurrence because of a pre-existing condition.”

The opinion added, “It is presumed the legislature is aware of how Louisiana courts have interpreted the statute; yet, it has taken no steps to overrule more than thirty years of Louisiana jurisprudence.” In so holding, it is unclear whether the court considered La. R.S. 23:1020.1(D), in which the Legislature specifically rejected the jurisprudential doctrine requiring a liberal interpretation of Workers Compensation statutes in favor of an employee. Despite this statement from the Legislature on the construction of Workers Compensation statutes, the Rayborn opinion suggests that courts may continue to base their decisions on the liberal interpretation of “accident” that has been developed and adopted by Louisiana courts when analyzing what types of injuries are covered under Louisiana Workers’ Compensation Law.

References:

Rayborn v. Cont'l Cement Co., LLC, 2023-0403 (La. App. 1 Cir. 1/10/24), 2024 WL 132802.

In Marrero v. I. Manheim Auctions, Inc., the plaintiff fell after he exited a building during a rainstorm and stepped off a curb into a parking lot. He claimed he stepped into a divot where asphalt had washed away. The defendant moved for summary judgment.

In opposition, the plaintiff offered an expert affidavit that cited a lack of handrails, code violations, and loose pebbles as contributing to the plaintiff’s fall. To recover in the case, the plaintiff possessed the burden under La. R.S. 9:2800.6 to establish three elements: 1) the parking lot presented an unreasonable risk of harm, 2) this risk of harm was reasonably foreseeable, and 3) the defendant possessed actual or constructive notice of the alleged defect.

The defense argued the plaintiff could not show the parking lot presented an unreasonable risk of harm that was reasonably foreseeable and produced an expert affidavit to show the divot was only 3/16” deep. Evidence also showed the plaintiff was familiar with the area where he fell. The defendant also had received no prior complaints about the area. The trial court found that the parking lot did not present an unreasonable risk of harm because the divot was only 3/16” deep and granted summary judgment.

On appeal, the plaintiff argued that the trial court should not have granted summary judgment in light of the competing expert affidavits regarding whether the parking lot presented an unreasonable risk of harm. However, when a motion for summary judgment is appealed, the court uses a de novo standard of review. Under this standard, the appellate court reviews all issues and considers all evidence submitted to the trial court in its ruling.

The First Circuit affirmed summary judgment but did so for different reasons than the trial court. The Marrero court found the plaintiff failed to produce any evidence of the third element, i.e., whether the defendant knew or should have known of the defect. Because the plaintiff failed to establish a material issue of fact as to all three required elements, summary judgment was granted. Marrero reminds that appellate courts may consider facts and legal issues the trial court did not address in its ruling.

Louisiana insurance law recognizes a practical problem faced by many: the need to obtain alternative transportation when the car won’t start. Under La. R.S. 22:1296, any insurance on your personal vehicle must also extend to vehicles that are used as “temporary substitute autos.”

The statute provides that a car’s status as a “temporary substitute auto” depends on how the term is defined in the particular auto policy at issue. However, some rules typically apply to determine whether the auto is a “temporary substitute.” First, the use must be temporary, i.e. limited in duration. Second, the car must be a substitute for the auto insured under the policy and used for the same purpose. Third, policies typically limit coverage to substitute vehicles that the driver does not own.

Some policies also limit coverage by requiring that the substitution be needed for a purpose identified in the policy, such as the breakdown, repair, or destruction of the covered auto.

While the statute generally defers to the definition of “temporary substitute auto” provided in the policy, sometimes courts will overrule the insurer’s definition. For instance, in State Farm Mutual Automobile Insurance Company v. Safeway Insurance Company, 50-098 (La. App. 2 Cir. 9/30/15), 180 So.3d 450, the relevant policy defined a “temporary substitute auto” as a substitute for the owned auto when the owned auto was “being serviced or repaired by a person engaged in the business of selling, repairing, or servicing motor vehicles.” The case involved a motor vehicle accident that occurred while the policy holder operated a borrowed vehicle but before she brought her usual vehicle to a mechanic.

Citing the terms of the policy, the insurer denied coverage on grounds that the policy required the “temporary substitute auto” not only take the place of the driver’s usual vehicle, but also that the driver take the car to a mechanic before coverage would extend to the substitute vehicle. However, the court found this requirement to be against the public policies behind La. R.S. 22:1296 and found coverage under the policy extended to the borrowed vehicle.