There has recently been a great deal of discussion regarding occupational disease in workers' compensation. The Florida Court explained the Florida standard extensively in two decisions late in 2019, discussed in Florida Occupational Disease Burden (12/19). More recently, the early days of workers' compensation were discussed in Occupational Disease and the 1918 Flu (07/20). There are reminders in these discussions that workers' compensation is a conglomeration of more than 50 jurisdictional statutes that have been drafted and evolved in light of a variety of environments. The outcome of a workers' compensation claim in one jurisdiction might surprise subject-matter experts in another.
On a national community discussion, a peer from Louisiana noted the determination of its Circuit court in Allen v. Graphic Packaging Intl., No. 51,080-WCA, (La. 2nd Cir. 2017). This is an occupational disease case regarding West Nile Encephalitis, a mosquito-borne infection that has no known vaccine or medication treatment. In recent years, the malady has affected people in various states, as reported by CNN.
In Allen, an employee alleged that he had been in the Employer's facility break room one day when he was bitten by a mosquito. His recollection included the identities of his coworkers present when the bite occurred. He later developed symptoms and presented at a hospital for care. By that time, he was somewhat incapacitated and his girlfriend provided the history for the admission. There was some testimony that within the time for a bite to have caused the onset of symptoms (within the "gestation" period), the injured employee might also have engaged in some outdoor work at home, including cutting grass (presenting a second potential opportunity for mosquito bite).
There was no dispute in the case regarding the presence of the disease. Everyone agreed the employee had contracted West Nile Virus. The dispute was whether the employee had proven that his disease resulted from a bite at work. As discussed in Occupational Disease and the 1918 Flu (07/20), the statutory language is critical for the analysis of the compensability of any work injury. What is or is not compensable will depend upon the language employed by the elected representatives that draft a particular jurisdiction's law.
The standards in Florida include such elements as "major contributing cause," and a requirement that the disease "resulted from the nature of the employment," the presence of "a particular hazard of such disease," and there is an exclusion for "all ordinary diseases of life to which the general public is exposed," "unless the incidence of the disease is substantially higher" in that employment. In at least some exposure cases, the statute requires "clear and convincing evidence" proof, a heightened burden. The bottom line from many perspectives is that proving occupational disease under the Florida statute is not easy.
The Louisiana statute is not as restrictive as regards occupational disease. The Court there noted that the parties in Allen had presented conflicting evidence regarding various factual points. The factual history provided, of the bite in the break room, was not uncontroverted. The Court explained these various conflicts in minute detail. The judge had therefore been presented with issues of credibility and had to reach conclusions regarding what facts were to be believed or disbelieved.
She had concluded that the injured employee's testimony was credible. The Judge did not find conflicting evidence "discredited or cast into serious doubt his version of the incident," and "placed considerable emphasis upon" specific evidence presented. The Court concluded that the trial judge had performed that function of determining credibility appropriately and that her decision should be affirmed.
The Court noted that an employee in Louisiana has the burden of proving "injury by accident arising out of and in the course of his employment," and that the state's law is to be "liberally construed in favor of coverage," "proven by a preponderance of the evidence." This suggests a lower burden of proof in Louisiana, and a different set of challenges than those in Florida. The "liberally construed" and "preponderance" describe the burden of proof elements in that law. For more on burdens see The Burden of Proof Matters.
The Court also explained that in Louisiana the appellate court considers whether the trial judge's factual conclusions were "manifest error" or "clearly wrong." It noted that in Louisiana a worker's "testimony alone may be sufficient to establish an accident" when "corroborated by the circumstances." The Court also noted other insect bite and disease cases in which compensability was similarly affirmed.
The Court also discussed Easly v. D & O Contractors, Inc., 895 So. 2d 23 (LA 5th Cir 2005) which illustrated an opposite conclusion. There, "the plaintiff had not proven by a preponderance that he contracted West Nile while working." Thereby, the Court explained the application of the standard and the potential for the same factual determinations to result in different results. There, the trial judge similarly reached conclusions regarding the credibility and the evidence, and there the injured worker did not prevail.
The comparison is worthy of consideration. The circumstances and the weight of evidence is critical. The credibility of the witnesses may be critical in any event, regardless of whether the burden is on the worker or employer, whether by preponderance or clear and convincing. The explanation of the Court in Allen reminds us that credibility, circumstance, and competency of evidence are important considerations for counsel in any case.
Though the Allen Court affirmed the conclusion of compensability, it concluded the finding of permanent total disability there was premature and remanded that issue. It further reversed the trial judge's conclusion that attorney fees should be paid by the employer. It noted that "there were numerous factors sufficient to validate Graphic's reasonable controversion." Therefore, the judge's award of "penalties and attorney fees" was "not warranted."
