Monday, September 30, 2013

The Love Hate Dichotomy of Comp

Business hates the cost of workers' compensation and there are continual attempts to hold down the expense by excluding conditions or refining qualifications for coverage.

That is until business gets sued civilly for employment conditions or injuries.

Then all of a sudden workers' compensation should be applicable.

In Louisiana the workers' compensation statutes had been interpreted for several years by two appellate level courts to exclude hearing loss from coverage - that is workers who have demonstrated injurious exposure resulting in a gradual degradation of their hearing over time could not receive workers' compensation benefits.

The underlying theory is that Louisiana law requires an injury to be "sudden" or "violent" to fall within the ambit of workers' compensation, though there is a catch all phrase permitting coverage where "the usefulness of a physical function is seriously permanently impaired."

In a case that's similar factually to those prior appellate holdings, Graphic Packaging International Inc. got sued, and lost, by six former employees alleging their hearing had been damaged gradually from years of workplace exposure. Each plaintiff was awarded $50,000.

There originally were 16 employees with separate lawsuits. One of the plaintiffs had been working at the plant since the 1950s.

The parties chose six claimants to represent the "first flight" of plaintiffs whose cases would be tried together.

The plaintiffs alleged that the plant was so noisy that people had to yell to be heard or read lips and use hand signals. They testified that their hearing had not been tested regularly and when they were tested, they weren't given the results. Their employer did not provide hearing protection until the late 1980s or early 1990s, the plaintiffs said.

The workers said that their hearing loss occurred gradually, and some were not aware of a problem until 2004, when their attorneys had their hearing tested. (In reading the cases and the news report, it seems there may be a cottage industry in Louisiana on hearing loss cases.)

Fortunately for Graphic the Louisiana 2nd Circuit Court of Appeal ruled that gradual hearing loss caused by years of workplace exposure is compensable as an occupational disease under the Louisiana Workers' Compensation Act.

Earlier opinions by the 3rd and 4th Circuit Court of Appeal have held that hearing loss does not meet the definition of accident in Louisiana.

The 2011opinion from the 4th Circuit in Becker v. Murphy Oil Corp. ruled "that gradual hearing loss resulting from occupational noise exposure over a period of many years simply cannot meet the definition of an 'accident' under any version of the LWCA."

If In Arrant v. Graphic Packaging International Inc. et al., 48,197-CA, 09/25/2013, goes up to the Supreme Court and Graphic wins, then the plaintiffs probably are out of luck because the statute of limitations has long run on filing for work comp benefits.

I'm not offering an opinion on Louisiana law, or even the court opinions.

All I'm pointing out is that workers' compensation is certainly convenient when it is more cost effective than doing without.

And that cottage legal industries will sprout whenever there is opportunity for exploitation.

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