Pain And Suffering Claims

March 5, 2023

I lied in a pre-employment medical questionnaire. What are the consequences?

maritime_history_metal_historical-1024x680 Medical conditions can be a sensitive topic for both employers and employees. While employers are extremely cautious in not asking discriminatory questions, the employees may still be reluctant and afraid to lay all cards on the table. Understandably, workers who suffer from pre-existing medical conditions feel that they don’t need to inform their employers as long as the illnesses are not getting in the way of work. But should they? A recent case from Lousiana Fourth Circuit illuminates the legal consequences where the employee lied on the medical forms and later requested worker’s compensation.

Seaman Rousse injured his back while performing his duties as a deckhand on a United Tugs vessel in 2014. His injuries caused him to have two lumbar spine surgeries. United Tugs paid his maintenance and cure, covering his medical expenses. However, three years later, in 2017, United was alerted that Rousse had significant back injuries before he started working on the vessel. He failed to disclose his prior medical treatments during the hiring process. As a result, United sought restitution of the paid compensation. The district court ruled in favor of United, holding that Rousse had forfeited his entitlement to receive maintenance and cure because he concealed that he had suffered back injuries before employment. Rousse appealed.

A duty for maintenance and cure means that the vessel owner must “provide food, lodging, and medical services to a seaman injured while serving the ship.” Lewis & Clark Marine Inc., 531 U.S. 438, 441 (2001). However, this duty is not absolute. When a seaman intentionally conceals or fails to disclose past illness when required by an employer, the employer’s obligation to pay maintenance and cure is eliminated. McCorpen v. Cent. Gulf S.S. Corp., 396 F.2d (5th Cir. 1968). This exception rule is called the McCorpen defense. The U.S. Supreme Court has neither adopted nor rejected the McCorpen defense, resulting in a split among the federal circuit regarding what non-disclosures could bar the employee from receiving benefits. The Louisiana Fourth Circuit found McCorpen persuasive and decided to follow McCorpen in this maritime lawsuit.

February 26, 2023

Workers’ Compensation Claim Denied For Failure To Seek Preapproval

by Berniard Law Firm

workers_construction_worker_work-1024x576 It can be a long road to recovery from a work-related injury. If you or a loved one suffered an injury on the job, it is crucial to understand the workers’ compensation system to comply with all the requirements to receive any compensation to which you are entitled.

Carl Gabriel worked as a “Ready Reserve” employee at Delta. Less than two months after he started working, he was injured when a tow bar fell onto his foot. After a dispute with his employer over indemnity payments, Gabriel filed a Disputed Claim for Compensation, Form 1008, with the Office of Workers’ Compensation (“OWC”). He asserted that Delta failed to pay indemnity benefits and timely pay and authorize medical benefits. There was a trial where Gabriel won, with the court finding that Gabriel was entitled to benefits from Delta.

Gabriel then filed a second Disputed Claim for Compensation, alleging that Delta had failed to pay the amounts owed to him under the prior judgment. He also sought penalties under La. R.S. 23:1201(F) and (G) for Delta’s failure to pay correctly. He also alleged that he was temporarily totally disabled again because of a worsening of his medical condition. Gabriel went to two physicians in Atlanta, Georgia, to deal with his worsening condition. Delta argued that neither Gabriel nor his physicians ever properly requested approval for the recommended treatment through Form 1010, submitted to Gabriel’s adjuster. Instead, Gabriel sought approval informally via fax.

February 3, 2023

First Circuit Court of Appeal Affirms Decision That Employee Was Entitled to Compensation From Work Related Back Injury (Part 1)

by Berniard Law Firm

An employee suffering an injury at work can be concerning for both the employee and employer. This concern can be increased when the injury sustained at work is an aggravation of a previous injury. However, as one Louisiana individual discovered, providing solid evidence backing your workers’ compensation claim can be critical to the lawsuit.

Mrs. Alexander worked as an administrative assistant at Stupp Bros in Baton Rouge. On February 12th, 2015, Mrs. Alexander was asked to order toner for the printer. Mrs. Alexander had to obtain the serial number from the back of the printer to collect toner and kneel down to acquire the serial number. While kneeling down and pulling the printer off the wall, Mrs. Alexander felt a tear on her back. Mrs. Alexander fell over and was transported Mrs. Alexander to Prime Medical with some assistance.

While at Prime Medical, Mrs. Alexander was diagnosed with a lower back strain, given over-the-counter medications, and was given a release to return to work. Mrs. Alexander complained about pain and said she had undergone two previous back surgeries while visiting Prime Medical. Four days after the accident, Mrs. Alexander went to the emergency room at Lane Regional Medical Center. An M.R.I. performed on Mrs. Alexander revealed several issues involving a disc in her back.

January 27, 2023

Injured Worker’s Lawsuit Rejected for Failing to Show Any Genuine Issue of Material Fact

by Berniard Law Firm

elevator lawsuit louisiana Most court cases do not proceed to actual trial. In the context of criminal cases, the defendants often accept plea deals. In the context of civil cases, however, parties often settle or the case is simply dismissed through motion practice.

For a plaintiff to succeed in a civil case, he or she must show that there are facts that can prove his or her claim. If there are no such facts, then he or she cannot prove his claim, thus rendering a trial unnecessary. In cases where the plaintiff does not have facts to support his or her claim, the opposing party often files a motion for summary judgment in order to dismiss the claim.

Patricia Bowen worked at the Earl K. Long Medical Center (“EKL”) located in Baton Rouge. On October 10, 2012, Bowen suffered serious injuries at work when the elevator she used dropped and went up abruptly as she exited it. On October 9, 2013, Bowen filed a lawsuit against EKL, alleging that EKL was negligent for not performing proper maintenance or maintaining preventive maintenance on its elevators.

January 24, 2023

Does Your Work-Related Accident Qualify for Workers’ Compensation Benefits?

by Berniard Law Firm

forklift accident lawyer What may seem like a simple worker’s compensation claim can turn into a surprisingly complicated dispute over the nature of the injury and the payment of benefits. For many years, Reginald Crockerham worked as a forklift operator for Weyerhaeuser Holden Wood Products in Tangipahoa Parish. After almost two years of lower back injuries caused by the forklift’s bad tires, suspension, and seating, Crockerham underwent discectomy surgery and a two-level fusion.

Crockerham filed a claim for benefits with the Louisiana Office of Workers’ Compensation (OWC). The OWC found that Crockerham proved that he suffered a work-related accident within the scope of his employment with Weyerhaeuser and awarded him temporary total disability (TTD) benefits as well as past and future medical expenses. Weyerhaeuser appealed to Louisiana’s Court of Appeal for the First Circuit.

Weyerhaeuser argued that Crockerham’s injury did not meet the legal definition of “accident” under state law. In a workers’ compensation case, the claimant must prove by a preponderance of the evidence that an accident occurred on the job and harm came from it. An “accident” is an unforeseeable event that occurs suddenly — with or without human fault — and directly causes an injury. The injury must be more than slow deterioration or gradual weakening. La. R.S. 23:1201.

January 22, 2023

Baton Rouge Parent Denied Compensation Resulting from Son Abandoned on School Bus

by Berniard Law Firm

abandoned school bus lawsuit How much of an award or compensation could a parent expect when a school board is found liable for inflicting trauma on a child? A trauma to a child would have a profound effect on the parent as well as the child. Is it not reasonable to expect the school board to pay for the emotional damages the parent suffered? Unfortunately for a Baton Rouge mother, her failure to include in her written pleadings a claim for general damages resulted in a finding of no damages despite trial testimony supporting her emotional distress. A superior lawyer always includes all possible claims in written pleadings to avoid this unfortunate outcome.

Demondre Morgan was a kindergartener at Westminster Elementary School in Baton Rouge, Louisiana when he fell asleep on his school bus one September afternoon. After the route was complete, the school bus driver parked and locked her bus without noticing little Demondre. Demondre’s mother, Shunquita Morgan, was waiting for her son at the school bus stop when the bus never arrived. Meanwhile, Demondre awoke to find himself on the bus alone, started to cry, and was heard by two passers-by who rescued him from the bus. Morgan had reported Demondre missing to the police during this interval, and Demondre was returned to his mother about two hours after his normal drop-off time.

Morgan filed a lawsuit against the East Baton Rouge Parish School Board (“School Board”). Her pleadings included damages for her son as well as for economic loss for herself due to Demondre’s fears about riding the bus. She did not include a request for any other damages such as emotional distress for herself. The School Board admitted liability. The trial court awarded a total of $4,184.00 in medical and general damages for Demondre. Morgan was not awarded any damages because she did not present any evidence of economic loss and her attorney only sought emotional distress damages at the very end of the trial. The trial court ruled that the pleadings had not been expanded to include emotional distress damages for Morgan.

January 21, 2023

Baton Rouge Restaurant Owner Not Responsible for Slip and Fall Accident

by Berniard Law Firm

slip fall lawsuit louisiana The following scenario is not uncommon. Person enters restaurant without incident. Same person exits restaurant, fails to notice the one-step curb just beyond the door, falls, gets injured, and files a lawsuit against the restaurant. When is a restaurant owner responsible for such an incident? A recent case out of Baton Rouge explored this question and provided useful guidelines for owners and patrons alike.

Debra Williams was exiting Walk-On’s, a restaurant in Baton Rouge, when she fell from the sidewalk curb to the parking lot. Williams was talking with a group of people when she fell and claims she did not see there was a step down. Williams sustained injuries from her fall and filed a lawsuit against Walk-On’s and its insurance company, Liberty Mutual. In support of her petition, Williams attached the affidavit of a forensic architect who stated the curb area did not contain any warnings or different paint color. The architect also cited numerous building codes but failed to demonstrate how the codes were applicable to the Walk-On’s curb. The trial court found that the architect’s affidavit did not factually support Williams’s claim and was unpersuasive. The trial court dismissed the case and an appeal followed.

In Louisiana, a merchant owes a duty to persons using their premises to keep the property in a reasonably safe condition. La. R.S. 9:2800.6(A). An injured party must prove that the condition causing the injury posed a foreseeable and unreasonable risk of harm and the merchant had actual or constructive notice of the danger but failed to exercise care in removing the danger. See Dupas v. Travelers Prop. Cas. Ins. Co., 762 So.2d 127 (La. Ct. App. 2000). In determining whether a condition is unreasonably dangerous, a court essentially will decide whether the social utility and value of the potential danger will outweigh and justify the potential harm to others. See Reed v. Wal-Mart Stores, Inc. 708 So.2d 362 (La. 1998). Moreover, if a condition is deemed “open and obvious” it will not be deemed to present an unreasonable risk of harm. No legal duty is owed when the condition encountered is obvious and apparent to all. See Moore v. Murphy Oil USA, Inc., 186 So.3d 135 (La. Ct. App. 2015).

January 20, 2023

Insufficient Medical Evidence Leads to Louisiana Court Throwing Out Default Judgment in Bar Fight Lawsuit

by Berniard Law Firm

bar fight lawsuit louisiana We all try our best to avoid trouble, but sometimes fights happen. It may be best to avoid a brawl if you see one occurring. However, when you see your friend in a bind, human nature kicks in, and before you know it, you’re in an altercation that you never signed up for. If you are injured in a fight, proceed carefully when suing the party that caused your injuries. Ryan Martinez learned this lesson the hard way following the Louisiana First Circuit Court of Appeal ruling in the following case.

Martinez intervened in an altercation between his friend and the defendant, Trevor Wilson, at Chevy’s nightclub in Hammond. (“Chevy’s). During the fight, Wilson allegedly attacked Martinez, and Martinez stated that the strike resulted in a mandible fracture. Martinez, after that, sued to recover damages, listing Wilson, Chevy, and their insurers as defendants and asserting Wilson’s liability for battery. The trial court entered a preliminary default against Wilson, as he was absent from court and had not filed a response to the petition.

Two years later, the trial court conducted a hearing to confirm the default judgment. Although Wilson did not appear at the hearing, Martinez submitted various items as evidence, such as a smoothie receipt and various uncertified medical records. As a result, the trial court signed the judgment finding Martinez entitled to collect $110,128.66 in personal injury damages and medical expenses from Wilson. Wilson promptly appealed the trial court’s decision awarding Martinez the previously noted damages.

January 17, 2023

Insurance Contract Confusion Leads to Louisiana Lawsuit

by Berniard Law Firm

Uninsured Motor Coverage Post
Car accidents are scary. Whether any parties are injured or not, dealing with the insurance company for vehicle damage or personal injury is not an enjoyable activity for the general public. The situation is even less enjoyable when the person dealing with the insurance company is not the policyholder.

In March 2007, Brian Duplichan’s daughter and the mother of his daughter were passengers in a car driven by Beverly Hooper. Although his daughter, Kadie, survived the accident, her mother, Sarah, did not. Both Sarah and Kadie lived with Sarah’s mother, Mary Elizabeth Reeves. Duplichan brought a lawsuit against State Farm Mutual Automobile Insurance for recovery of damages.

Kadie and her mother were riding with Beverly Hooper when Hooper swerved off the road into a culvert. These facts are not disputed—it’s the aftermath of the accident that put Spears’ mother—Mary Reeves—and Duplichan through the wringer.

February 16, 2020

Louisiana Supermarket Held Liable for Human Fingernail in Buffet

by Berniard Law Firm

assorted-cooked-foods-inside-food-warmers-2291367-1024x683 How often do you go through the buffet line at your local supermarket? Next time, you might want to think twice before digging in to your lunch.

On June 14, 2014, Cynthia Small entered Rouse’s Market hoping to enjoy a meal there. After purchasing items of prepared food from Rouse’s buffet, Ms. Small tried to enjoy her meal, but instead found a human fingernail hidden within. Ms. Small then brought a lawsuit against Rouse, claiming that she suffered from nausea, vomiting, and mental anguish on account of Rouse’s negligence. The lower court held a bench trial, which determined that Rouse’s was at fault. The court also awarded damages to Ms. Small in the amount of $2,500.00. Rouse’s appealed that decision to the Fourth Circuit Court of Appeals, arguing that the trial court erred.

The Supreme Court of Louisiana has held in cases similar to this that an analysis looking to risk and duty should be applied. The Court stated that a food provider owes a duty of care to behave like a reasonable person who is knowledgeable about cooking and preparing food. Porteous v. St. Ann’s Cafe & Deli, 713 So.2d 454, 457 (La. 1998). On appeal, the Court must determine if the lower court erred by finding that Rouse’s breached this duty of care.