Lousiana Court Sustains Worker’s West Nile Virus Claim as Accidental Injury

A Louisiana appellate court affirmed, in relevant part, a ruling by a state workers’ compensation judge that a worker sustained an accidental injury arising out of and in the course of his employment when he was bitten by a mosquito and later was diagnosed with the West Nile virus [Allen v. Graphic Packaging Int’l, Inc., 2017 La. App. LEXIS 35 (Jan. 11, 2017)]. Noting that there was substantial conflict in the evidence presented, the court indicated the WCJ was not manifestly wrong in concluding that the worker was bitten while in the employer’s break room. The employer had contended, in pertinent part, that the worker’s evidence of work-relatedness was speculative, that the outbreak of the West Nile virus had been widespread, and that contaminated mosquitos had been trapped throughout the area. Indeed, evidence suggested that more than 1,000 people contracted the virus during the summer and early autumn.

“More Probable than Not” Standard

The court indicated that in cases such as these, proof of injury was always circumstantial and that in such cases, the WCJ’s findings could be affirmed if the possibility of the worker’s exposure at work was more probable than not. The court acknowledged that the worker had potential exposure throughout the 14 days before his symptoms were manifested, that a bite could occur without a person’s knowledge, and that common sense indicated the worker had been exposed to mosquitos in other places away from the employer’s work facility.

The court added, however, that the same evidence pointed to broader possible work-related exposure than just within the employer’s break room. There was testimony, for example, that the employer left large doors open—allowing for exposure of mosquitos to workers. It also observed that the employer’s time records showed that the worker had been present in the plant during the early morning and late afternoon hours—the times of day when mosquitos are most active. The court indicated the worker had met his burden of showing that it was more probable than not that he was bitten on the job by a mosquito carrier of West Nile. The court, therefore, affirm the WCJ’s ruling that a work-related accident had occurred.

On the issue of disability, the court found, however, that the WCJ erred in awarding the worker PTD benefits prior to a proper evaluation of rehabilitation possibilities. The worker’s disability was found to be temporary total disability and the matter was remanded on the disability issue.

Close Cases Usually Go to the Injured Worker

This case illustrates the fact that in many jurisdictions, close cases are resolved in the worker’s favor. In spite of the fact that the “more probable than not” standard is a bigger burden that, say, a “substantial evidence” or “manifest error” standard, the worker here prevailed. One could certainly offer that the employer presented evidence that at least perfectly balanced the scales of justice. The court didn’t see it that way.

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