Pain And Suffering Claims

March 8, 2023

Missing Golden Ticket: Lafayette Final Judgment Lacks Decretal Language

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What do the movie, “Charlie and the Chocolate Factory,” and final judgments have in common? Both require a “golden ticket” to succeed in the next phase. In Charlie and the Chocolate Factory, each contestant must have a golden ticket to gain access to Willy Wonka’s Chocolate Factory. In trial-level court cases, judgments must include clear, specific language that makes them valid and disputable. Although the chances of Charlie discovering one of the five golden tickets were rare, the chances of an appeal being heard are less likely without a valid, disputable judgment.

What language is required to make a judgment valid and disputable? How does a court correct a judgment that does not include clear and specific language? A recent case out of Lafayette addressed these questions and offered preventative measures to avoid future occurrences of the same dilemma.

Curley Mouton lost his life in an automobile accident on April 24, 2014, after a tire on a tractor-trailer failed and burst, causing debris to fly into the roadway. Mouton’s surviving spouse and oldest son filed lawsuits against the truck driver, Arthur Huguley, Huguley’s employer, AAA Cooper Transportation, Inc. (ACT), and the insurance company, Ace American Insurance Company (ACE). After a jury trial, a decision favoring Mouton’s spouse and son was made. The jury found Huguley and ACT responsible for the accident, with 10% of the responsibility allocated to Huguley and the remaining 90% allocated to ACT. The jury awarded the Mouton family damages for the survival action and wrongful death damages.

March 7, 2023

Can a Worker’s Compensation Claimant Receive Spinal Cord Stimulator Treatment in Louisiana?

by Berniard Law Firm

skeleton_bone_medical_doctor-1024x768 Injuries sustained on the job present challenges for the employee and employer, especially when multiple sites of injury are involved. In addition, injuries all over the body can require different medical treatments for each affected area. Specialized treatments such as a spinal cord stimulator can be recommended to alleviate pain to an injured worker. However, a workers compensation insurance company may not be amenable to pay for such treatment. The following case addresses the question, can a workers compensation claimant receive spinal cord stimulator treatment in Louisiana?

Byron Gulley sustained injuries to his head, shoulder, wrist, back, knee, hip, foot and ankle as a result of a golf cart accident while working for the Hope Youth Ranch in June 2009. The claimant was seeing a pain management specialist, Dr. Chad Domangue, who recommended a spinal cord stimulator trial because other medications and treatments failed to address Gulley’s significant low back adequately, left hip, and leg pain. As such, Dr. Domangue filed the proper form requesting this treatment pursuant to the Medical Treatment Guidelines. This request was ultimately denied by the employer’s insurance carrier. Gulley brought the denial to the Medical Director of the Office of Workers’ Compensation, which also rejected the request and the Workers’ Compensation District two affirmed the denial.

Thereafter, Dr. Domangue continued to see and treat Gulley. Even though the spinal cord stimulator could not address all areas of Gulley’s pain, he believed it was the best option to treat his most significant pain areas. As such, he filed a second request, which was also denied by the employer’s insurance carrier. Gulley then sought approval for the procedure from the Medical Director, who again denied approval because the topography of the claimant’s pain was not amenable to stimulation coverage.

March 6, 2023

Plaintiff Fails to State Slip and Fall Claim Against Metairie Cafe Owner

by Berniard Law Firm

slip_heads_up_warning-1024x728 Slip and fall claims are among the most common types of personal injury lawsuits. But how do you ensure that your claim makes it through the legal process? A dismissed case against a Metairie restaurant can show you what mistakes to avoid in setting up your slip-and-fall claim for success.

Plaintiff Richard J. Boutall lost his footing and fell to the floor while exiting Minerva Cafe in 2013. As a result of his fall, Boutall broke his femur, was hospitalized for three weeks, and incurred over $30,000 in medical bills. In addition, during this three-week stay, Boutall endured multiple surgeries, including a hip replacement and an insertion of a surgical rod in his leg.

In a lawsuit against the cafe owner, he alleged that a small concrete ramp caused his fall at the door’s threshold. To support his claim, the plaintiff presented the expert report of a professional engineer who studied photographs of the cafe’s entryway. However, the trial court dismissed this case on summary judgment, meaning that it found that the claim did not state facts that would entitle the plaintiff to relief if they were proven true. Mr. Boutall appealed the dismissal.

March 5, 2023

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

by Berniard Law Firm

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).