Louisiana Supreme Court Clarifies Analysis for Open & Obvious Conditions

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.

When an employee is injured on the job and the employee’s request for workers’ compensation benefits is disputed, La. R.S. 23:1201.1 allows an employer to request a preliminary determination hearing (“PDH”) with the Office of Workers’ Compensation (“OWC”). If the workers’ compensation judge rules at the PDH that benefits are owed, the employer has ten days to comply with the judge’s ruling. The First Circuit recently ruled that an employer can find “safe harbor” if it technically complies with the rigorous deadlines of the statute, which if missed can have profound consequences, subjecting the employer to penalties and attorney fees.

In Kilbourne v. Dixon Correctional Institute, the court recently affirmed a ruling that found an employer complied with La. R.S. 23:1201.1 and could not be subject to penalties or attorney’s fees when it mailed the disputed workers compensation benefits within ten days of the judge’s ruling at the PDH. The ruling was affirmed even though the employee did not receive payment within ten days of the hearing.

The employer in Kilbourne stopped issuing weekly workers compensation benefits after two doctors found the claimant’s ongoing complaints were unrelated to the work accident and the claimant could return to full duty work. The employee then filed a disputed claim with the OWC and requested reinstatement of his benefits. He also requested an award of penalties and attorney’s fees because he claimed the employer’s suspension of indemnity benefits was arbitrary and capricious. The employer requested a PDH to address these issues.

The OWC judge issued a preliminary determination that although the employee was owed supplemental benefits from the date his payments of benefits stopped, the employer was not arbitrary and capricious in its decision to stop payment. Within ten days of the mailing of the PDH ruling, the employer issued and mailed benefit checks to the employee and filed a form with the OWC to provide notice the employer was paying the benefits. Nevertheless, the employee disagreed with the PDH ruling and the matter went to trial.

At trial, the employee argued that he should have received penalties, attorney fees, and interest on the back benefits paid after the PDH ruling. The employee argued the employer failed to comply with section 1201.1 because he did not receive the indemnity benefits until more than ten days after the PDH ruling. However, evidence showed the benefit payments were postmarked and mailed within ten days of the receipt of PDH ruling.

Accordingly, the trial court found that the employer was immune from an award of penalties and attorney fees pursuant to the “safe harbor” provision of section 1201.1. Interest also could not be owed on back pay when the employer complied with the statute. The First Circuit affirmed this decision on appeal. Although providing the claimant funds within 10 days of the PDH ruling remains the best practice for an employer, this ruling informs employers that they should find safe harbor from what could be significant penalties and attorney’s fees if they meet the technical requirements of the statute and mail their compliance with the judge’s ruling within ten days of the PDH.

Case Reference: Kilbourne v. Dixon Correctional Institute, 2022-0455,(La. App. 1 Cir. 11/4/22) ____So. 3d ___,2022 WL 16706951.

By Brian Butler

Many do not realize modern vehicles are always ready to record critical driving information. As with airplanes, most passenger vehicles are now equipped with Event Data Recorders (EDR), or "Black Boxes." This information may be critical after an accident to show what happened, and who was at fault.

EDRs may record pre-event data for five seconds before and one second after an accident, possibly including vehicle speed, engine speed, percent throttle, change in velocity, and whether the brakes were applied. The make and model of the vehicle will determine what data is available. If you want this data, you must act quickly because it will be “overwritten” at some point if the vehicle continues in use.

It is also important to retain a competent expert to download the data. In Laborde v. Shelter Mutual Insurance Co., 82 So. 3^rd 1237 (La. 3/9/2011), the trial court excluded the printout of data downloaded from a Black Box because of the boxes "chain of custody" and the method the information downloaded. It is important that your legal team knows how to obtain and preserve this evidence.

Data from Black Boxes can be useful in many ways. In some cases, it may help to prove that the accident involved a low impact or to show that no brakes were applied. In other cases, it may harm your position, but the data is almost always relevant. There are costs in downloading and interpreting the data. But in the right case, the secrets kept in the Black Box may be the only way to reveal the truth.

Brian has been doing defense work for the last 28 years. He has handled all types of defense matters over his career, but in recent years his practice has been focused in serious injury or damage cases and has worked extensively with experts involving complex cases, fire cases, and forensic work.