In Louisiana, when an employee seeks to recover workers’ compensation benefits for a heart-related or perivascular injury, he or she must prove, by clear and convincing evidence, that:
(i) The physical work stress was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation, and
(ii) The physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of the heart-related or perivascular injury, illness or death.
[see La. R.S. 23:1021(8)(e)].
As stated in several appellate decisions from Louisiana courts, the purpose of this heightened burden is to exclude from coverage employees who just happen to suffer perivascular injuries at work.
In a recent decision, Gordon v. Turner Indus. Group, LLC, 2013 La. App. LEXIS 2024 (Oct. 9, 2013), a state appellate court recently reversed a decision of the Workers’ Compensation Court and held that testimony that a boilermaker had worked 39 days, averaging some 11 hours per day, with only one day off, was sufficient to prove by clear and convincing evidence that his stroke had been caused extraordinary and unusual physical work stress in comparison to the ordinary stress experienced by the “average” boilermaker, and that based on the only medical evidence introduced at trial, such physical work stress was the major and dominant cause of the employee’s arterial dissection and stroke.
The appellate court discounted the employer’s contention that numerous boilermakers routinely performed their services beyond 13 days in a row without strokes. That evidence did not mean that Claimant’s 39-day work schedule was not extraordinary and unusual in comparison to the “average” boilermaker. The court observed that supervisors testified that it was unusual for a boilermaker to work more than one month without a day off, as Claimant had done at the time of his stroke. The court indicated that the only medical testimony offered at trial was that a physician who testified that Claimant’s arterial dissection was related to his work and that the physical work Claimant performed on or about the date of his difficulties was the dominant and major cause of the stroke. Evidence indicated that at the time of Claimant’s stroke, he was 36 years old and without any other pre-existing conditions that could have contributed to his stroke. There was no indication in the record of any medical evidence suggesting that Claimant’s arterial dissection or stroke were caused by any source of stress, including weightlifting, other than his work. The court found that the Workers’ Compensation Court was manifestly erroneous in finding that Claimant failed to meet his burden of proof under La. R.S. 23:1021(8)(e).