What Does the Law Say About Workers’ Compensation and Pre-Existing Conditions?
It is hard to think of an occupational disease which does not involve pre-existing conditions in some way. Hearing loss, which is one of the most common occupational diseases, is probably the best example. Loud noises are everywhere and not just at work. It is often difficult, or impossible, to pinpoint an exact cause.
Currently, a variation of the eggshell skull rule protects injured workers in Louisiana. However, in the post-coronavirus era, lawmakers in a number of states, including Louisiana, are considering measures that would reduce this protection and strengthen the hand of insurance companies in these disputes. Some of these models are outlined below.
Workers’ compensation laws might change, but the commitment of a New Orleans workers’ compensation attorney does not change. That commitment helps work injury victims get the compensation they deserve. This compensation usually includes wage replacement and medical bill payment.
Aggravation vs. Stacking
If the victim had a pre-existing condition, the victim must first establish that the work environment aggravated the condition and did not simply occur subsequently. Additionally, the work environment must have played an active role in the condition’s deterioration. Instead, an aggravation is usually a:
- New injury, such as hearing loss in both ears as opposed to one,
- Worsened disability, whether temporary or permanent,
- Need for additional medical treatment, or
- Change in the current treatment regimen.
Technically, lay testimony or the victim’s own testimony is sufficient to establish injury aggravation in Louisiana. However, medical evidence usually carries much more weight with both Claims Examiners and Administrative Law Judges. The doctor’s report should include some of the magic words listed above.
Who is Liable for Such Occupational Diseases?
Louisiana and most other states follow the full responsibility rule. Employers are responsible for the entire injury, even if a substantial part of the condition is not work-related. The theory is that employers should not reap financial windfalls simply because a particular worker had bad hearing or bad knees.
Increasingly, however, some pundits challenge the validity of the full responsibility rule. As mentioned, some decisionmakers feel that the increased workers’ compensation premiums scare away out-of-state employers. At least, that’s their feelings off the record. On the record, they argue the full responsibility rule discourages employers from hiring disabled individuals.
As a result, some states, including California, have already embraced the apportionment doctrine. California, New York, and other apportionment states require doctors to express, in a percentage, the amount of disability related to the workplace environment. This percentage must be:
- Specific,
- Based on the disability as opposed to the injury itself,
- Tied to concrete medical facts, and
- Based on a reasonable medical probability.
Some states, including nearby Georgia, have an even more radical rule. The Peachtree State cuts off workers’ compensation eligibility if the victim had a pre-existing condition. No Louisiana lawmakers are currently considering such a radical scheme.
One of the reasons the proportionality rule is not more widespread is that it does little to reduce workers’ compensation costs. As mentioned, it’s very difficult to distinguish between work-related and non-work-related conditions. It’s often too costly and time-consuming to draw this line.
Count on a Dedicated Attorney
In Louisiana, a pre-existing condition does not preclude a workers’ compensation claim. For a free consultation with an experienced New Orleans workers’ compensation lawyer, contact Lunsford, Baskin & Priebe, PLLC. We do not charge upfront legal fees in these matters.
Resource:
nepis.epa.gov/Exe/ZyPURL.cgi?Dockey=910241N7.TXT
https://www.lunsfordbaskin.com/top-five-work-related-head-injury-causes-in-mississippi/
