Articles Posted in Pain And Suffering Claims

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26-Picture-05-22-2019-1024x687The doctrine of peremption can prevent someone from bringing legal action against someone should that action be brought after a certain amount of time. Peremption is a period of time fixed by law for the existence of a right. La.Civ.Code art. 3458. This period is defined by an applicable statute. Arthur Gibson’s case contains two instances of peremption extinguishing a party’s right to bring a claim.   

Arthur Gibson was performing manual labor in the hold of a ship in 2004. While at work, he suffered injuries to his neck and blamed the company who made the materials he was moving. This company was Louisiana Rice Mill (“LRM”). For the next ten years, he attempted to bring two civil actions against LRM for negligence and product liability. Mr. Gibson received workers compensation during this time, pursuant to the Longshore and Harbor Workers Compensation Act. He was represented by Raleigh Newman, for his civil claims, and J. Lee Hoffoss, Jr., who handled his worker’s compensation claim. 

However, after a visit to a neurosurgeon in 2010, Mr. Gibson’s workers’ compensation benefits were discontinued. Mr. Gibson was never informed of the suspension of his payments. He continued to receive regular payments from Mr. Newman, his attorney, during this time to help cover his living expenses. Therefore, Mr. Gibson was unaware that his workers’ compensation benefits had been suspended. He did not discover this until 2014, when his civil actions against LRM ran dry. Mr. Gibson filed a petition for damages against his attorneys. He claimed that they had performed legal malpractice by failing to appeal the suspension of his benefits. The trial court granted the defendant attorney’s exception of peremption, as the claim was brought more than three years after the alleged injury occurred. Mr. Gibson appealed the trial court’s decision.

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garden-gardening-grass-589-1024x680Can a store, like Lowe’s or Home Depot, be held liable for injuries resulting from the sale of the wrong part or product? In Ms. Johnson’s case, the answer was no. Sharon Johnson’s lawn mower needed a new spark plug, so she went to the Lowe’s in Shreveport to find one. Because Ms. Johnson was unsure about the type of spark plug she needed, she asked a sales associate to help her. The sales associate researched the spark plug that she needed, she purchased it, and returned home to install the part.

When Ms. Johnson arrived home, she installed the part on the mower even though she thought the spark plug was ‘funny looking’. When she started the mower, the cable jerked violently, and she was struck by the crank handle. She claimed to experience pain that shot through her back and neck and spread down the right side of her body. Her hands eventually became numb. She went to a doctor for the numbness. The doctor stated that her injury made her preexisted carpal tunnel syndrome systematic.

She sued Lowe’s for negligence. Lowe’s answered the petition, denying all allegations. They moved for summary judgment, asserting that Johnson failed to produce any evidence to establish liability by failing to prove cause-in-fact. The trial court agreed with Lowe’s and granted summary judgement. Johnson appealed the grant of summary judgment. In Johnson’s appeal, she emphasized that a genuine issue of material fact existed as to whether she was sold the wrong spark plug that led to her injuries.

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33-032619-photoTrials are decided solely upon the evidence presented. A judge cannot read a book on the subject, or do extraneous research on the internet, to aid her decision-making process. In this case, the Defendant claimed that the judge did just that, by calling a city official to confirm some data. The appellate court thought otherwise. So, what do you do when you feel as if the Judge made a decision unfairly?

Plaintiff Vicke Mosley was driving down Mansfield Road in Shreveport when she was struck by Jacob Griffin’s vehicle at the intersection of Valley View. The crash rendered Mosley unconscious and he had to be hospitalized for three days. Mosley claimed Griffin ran the red light, while Griffin claims the light had turned green as he entered the intersection. Mosley filed a lawsuit against Griffin and his insurer.

Witness accounts depicted Mosley entering the intersection on a yellow light, and Griffin edging out into the intersection before his light turned green. Mosley’s attorney also entered a traffic signal inventory (“TSI”) into evidence, which logged the amount of time traffic signals stay certain colors. The only problem with the TSI was that it was from 2011, nearly 3 years before the accident. The Trial Court notified the attorneys for both parties that it would contact the city to confirm the TSI’s veracity. The plaintiff’s counsel was vocal in his support of this action, while defense counsel said nothing.

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12-Photo-4_2_19-1024x683Ms. Sayre was a guest at the L’Auberge Casino Resort in Lake Charles when she tripped and fell while walking in front of the hotel restaurant. Based on the video footage of the accident, there were witnesses to the slip and fall; however, the hotel failed to document anything or take statements from any of the witnesses. Ms. Sayre reported a sticky substance on the floor, and subsequently suffered injuries to her knee, hand, neck, and abdomen. Later, Ms. Sayre learned she also had three fractured ribs and a full rotator cuff tear that would require surgery. So, what happens if you slip and fall in a restaurant?

Ms. Sayre filed a suit for negligence against the resort asserting that the clear, sticky substance caused her fall. She also stated that a restaurant employee told her three other people had fallen in the same spot. When Ms. Sayre attempted to find evidence of the accident, she couldn’t find any and never received an accident report from the resort. She later amended the petition asserting claims that the resort purposely failed to properly secure and preserve evidence to prevent people from bringing suit.

During trial, Ms. Sayre’s counsel requested that the court instruct the jury that failure to preserve evidence raises a presumption that the evidence would’ve been detrimental to the case absent a reasonable explanation. So, if the jury  finds that the defendant could have reasonably preserved the evidence and failed to do so without explanation, the jury can presume that the evidence wouldn’t favor the party. Ms. Sayre was informed by the court that they wouldn’t give the jury those instructions. Sayre’s counsel objected, the trial proceeded, and the jury returned a verdict in favor of the defendant. Ms. Sayre appealed the decision, claiming that the trial court erred by not giving the jury the instructions she requested.

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When you are injured on the job, you expect for your medical expenses to be covered through worker’s compensation. However, when your employer denies your recommended medical treatment to recover from your injury, what do you do? First, you file a disputed claim for medical treatment form (Form 1009) with the Medical Director of the Office of Workers’ Compensation Administration. If that claim is denied administratively, then you are entitled to a hearing before a Workers’ Compensation Judge (WCJ). However, sometimes the process does not go as planned. For example, in this instance a Workers Compensation Judge ordered the defendants claim be paid but the employer appealed the WCJ’s decision.

Robert Friedman was an employee of Ecolab, Inc. when he injured his back on the job in October 2007. At first, his course of treatment was mild and done by a primary care physician, then a pain specialist. However, his symptoms persisted into 2011, when he was referred to an orthopedic surgeon. That surgeon first did a lumbar interbody fusion, which is a surgical procedure where a damaged disc is removed and replaced with bone graft material.  Symptoms persisted into 2013 when the orthopedic surgeon referred Friedman to a neurosurgeon, who ran additional tests. The neurosurgeon’s tests revealed loosened screws/hardware from the initial lumbar interbody fusion. Eventually, the neurosurgeon suggested a new lumbar interbody fusion that would both fix the initial procedure as well as provide additional support. EcoLab approved the portion that would fix the initial procedure but denied the portion that would provide additional support as they did not feel it was medically necessary. Friedman then filed a Form 1009 with the Office of Workers’ Compensation Administration, which was denied due to insufficient clinical information. Friedman then re-filed his Form 1009 to get a hearing before a WCJ in Ouachita Parish, who granted Friedman to get his entire prescribed procedure, as well as legal fees covered once evidence was submitted. Ecolab appealed to the Second Circuit Court of Appeal.

Workers’ Compensation Claims are determined under guidelines in Title 40 of the Louisiana Administrative Code. At issue is whether the evidence supports that extended lumbar interbody fusion is medically necessary. Workers’ Compensation is supposed to cover the costs of medical treatment that is reasonably necessary for treating medical conditions caused by a workplace injury. See La. R.S. 23:1203. Medically necessary treatment is supposed to be that which is consistent with the diagnosis and treatment of a specific condition rather than solely based upon a patient’s preference. A claimant’s appeal of the Medical Director’s decision to a WCJ is based upon clear and convincing evidence, which means evidence has to be substantially more likely to be true than not true. 40 LA ADC Pt. I, §2715 sets the criteria about what evidence is necessary. As this procedure was a follow-up to his 2011 surgery, Friedman did not need to send inasmuch documentation.  For that reason, the Appeals Court determined that the Medical Director erred in their judgment and thus upheld the WCJ’s ruling in favor of Friedman, as well as awarded attorney fees.

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46-Email-03-13-19-Image-1024x682Workers’ compensation exists to aid employees who suffer injuries while on the job. However, companies can sometimes be uncooperative after their employees become injured by dodging responsibility and avoiding making payments. Despite these difficulties, a case backed by strong evidence can help injured employees receive the compensation they deserve. How can you get the workers compensation you deserve when your employer is avoiding payment?

Patricia Wilson, a Glazer employee, had a physical job involving reaching, bending, pushing, lifting, and pulling while packaging bottles of liquor on a conveyor belt. Ms. Wilson was working on the assembly line on May 15, 2012, when she tripped on a floor mat and took a hard fall. She stopped working and sought medical care right away, where she was diagnosed with contusions to her right shoulder, gluteal back, and hip, as well as a neck strain. She was given medications and instructed to ice the area. After some intermittent time off of work and a handful of doctors visits, in late July she was discharged from her doctor’s care despite experiencing lingering pain. For the following year, Ms. Wilson experienced pain at work, specifically on her right shoulder and neck.

On Monday, July 8, 2013, Ms. Wilson was working on a shorthanded line and experienced more of a physical demand than she usually would on a Monday. Ms. Wilson experienced pain in her right shoulder and neck throughout her shift that night. The next morning Ms. Wilson’s pain was so great that she called in sick for work. The pain did not subside over a series of days, and after many fruitless attempts to speak with management to receive direction on how to proceed, Ms. Wilson was finally authorized to see her doctor three weeks later on July 31, 2013.

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black-hole-1181587-1024x768If injured on someone else’s property, it is important to know what has to be proven in order for a legal case to go forward. If the injury occurs from a defective structure, then the owner of the premise must have constructive knowledge of the defectiveness. The factors a court evaluates when the defective structure is on public property differ from those of a private owner. So, what happens if you are injured on someone else’s property?

A judgment by the 19th Judicial District Court granting the East Baton Rouge Parish Housing Authority (“the Authority”) a summary judgment motion and dismissing the claim by Andrew Blevins (“Blevins”) and his employer’s insurance company, Stonetrust, was affirmed by Louisiana First Circuit Court of Appeal. Summary judgment is granted when there is no real dispute as to the facts of the case, and the party who requested the summary judgment, known as the mover, is entitled to win the case as a matter of law La. C.C.P. art. 966.

Blevins was working at Electrical Building Service, LLC (“EBS”) and while on the Authority’s property, he stepped into a hole that was hidden by tall unkempt grass, causing him to fall and fracture his ankle. Blevins alleged that the Authority was aware or should have been aware of the giant hole that injured him. When a premise owner should have known about a defect, the knowledge is called “constructive notice.” If constructive notice is shown, the Authority is liable for damages. Here, those damages included medical fees and workers’ compensation benefits that Stonetrust wanted as a reimbursement payment.

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lab-work-1575844-1024x683Have you ever been tempted to take a sick day, just because you need a break? Have you ever called in or left early because you are feeling under the weather and you would not be able to forgive yourself if you exposed the entire office to the bug you caught? Although many employees may stretch the truth on sick days sometimes, there are occasions where it becomes irresponsible and unprofessional. One Louisiana man attempted to test the boundaries of worker compensation when he requested medical payments for his sickness. So, how can you determine if someone is faking symptoms in a workers compensation case? 

This case involves a man filing a workers compensation claim against his former employer. The employee’s name is Remco Leidelmeijen, and he was working for the company, Ferncrest Manor Nursing Home, as a licensed practical nurse. One day, while performing his work duties, he entered a patient’s bathroom to empty out a catheter bag and slipped on water that was on the floor. As a result of the slip, Leidelmeijen first fell forward, hitting his face and jaw on the sink, and then he fell backward and hit the back of his head on the floor. Immediately after the accident occurred, he declined a request to call an ambulance and instead had a family member bring him home from work. He went to the emergency room later that day and received treatment for head trauma occurring at work, according to the emergency room records. He allegedly had injuries for his head, his mouth, and his teeth. Therefore, Leidelmeijen filed suit in hopes of paying the medical bills he accrued for treatment of injuries that he claims came from the accident. Ultimately, he ended up with partial relief.

Leidelmeijen’s only dispute was for his claim of medical benefits, which is what was tried in front of Judge Robert Varnado, Workers’ Compensation Judge of District Eight. This court ultimately found that Leidelmeijen failed to prove entitlement to medical benefits. The majority of the medical expert testimony introduced into evidence found that Leidelmeijen did not have the brain injuries he claimed from the accident but is instead malingering. A malingering diagnosis means that the person might be deliberately or consciously feigning symptoms for an ulterior purpose (e.g., avoiding work, receiving money, prolonging illness with the intent to avoid responsibility and so on, and/or obtaining medications). Leidelmeijen appealed the decision, and it went before Chief Judge James F. McKay, III, Judge Edwin A. Lombard, and Judge Rosemary Ledet. They affirmed the judgment against Leidelmeijen.

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singer-4-1433613-1024x681In order for a court to assess a fair amount of money to be paid for one’s injuries, it is necessary for the injured party to present sufficient evidence to justify that amount.  Without sufficient evidence, it is entirely possible for a court to award an incorrect amount of money to the injured party. A trial court is generally allowed a certain amount of discretion (or freedom) to make a proper judgment.  It must, however, come to a reasonable conclusion. An appellate court may alter the award if the judgment is incorrect based on the evidence provided. In 2016, the First Circuit Court of Appeal decided to do just that in a case that involves lost wages over an inability to audition for new jobs. 

In October 2012, Dr. Ebony Woods was rear-ended in a car accident in Baton Rouge.  As a result of this accident, she suffered some neck, back, and leg pain for which she underwent several months of chiropractic treatment.  Since the other driver was a minor, Dr. Woods filed a lawsuit against the other driver’s tutrix (or legal guardian) and their insurance company, Pure Insurance Company.  She based her claims on negligence, stating that the driver in the other vehicle, Logan Hall, had driven inappropriately and caused the accident. She sought payment for her medical bills, pain and suffering, loss of enjoyment of life and lost wages.  Pure Insurance acknowledged the fault of Mr. Hall in the accident and the authenticity of Dr. Woods’ medical bills. In 2015, the case went before a judge. This trial was based on whether Dr. Woods was entitled to monetary damages for lost wages, pain and suffering, and loss of enjoyment of life.   The court awarded her $35,000 for her lost wages as well as $32,000 for her pain and suffering and loss of enjoyment of life. Pure Insurance appealed this judgment.

Part of Pure Insurance’s appeal was based on the fact that the trial court should not have awarded Dr. Woods the $35,000 for lost wages or opportunity of income.  Thus, the issue here was whether Dr. Woods was entitled to this amount based on the evidence she presented. In order for the court to award money for lost wages, a plaintiff must prove he or she would reasonably have made the amount requested if not for the defendant’s wrongdoing.  Driscoll v. Stucker  893 So.2d 32, 53 (La. 2005).  For lost opportunity of income, the plaintiff must prove that an injury resulted in an incapability to perform tasks they would otherwise be able to do for wages. Levy v. Bayou Indus. Maintenance Services, 855 So. 2d 968 (La. Ct. App. 2003).  This proof must be certain and not merely possible or conjecture.   Walker v. Bankston, 571 So. 2d 690 (La. Ct. App. 1990)

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fitness-series-2-1467446-1024x768Summary judgment is a judgment entered by a court for one party and against another party without a full trial. More specifically, summary judgment may be granted where the legal claim or cause of action can be decided upon certain facts without a trial. Can you receive summary judgement in a negligence case against a squat machine manufacturer?

In order to succeed in a motion for summary judgment, a movant must show (1) that there is no genuine issue of material fact, and (2) that the movant is entitled to judgment as a matter of law. La. C.C.P. art. 966. A “material fact” is any fact that may be important, valuable, or critical in deciding a case, the suppression of which may reasonably result in a different decision. The movant, then, bears the burden of showing that there is no genuine issue of material fact, but the movant need only identify the absence of factual support for one or more elements essential to the opposing party’s claim. If the opposing party then fails to produce factual support for the challenged elements of his claim, summary judgment in favor of the movant is proper.

In the present case, Thomas Nearhood incurred injuries while exercising on a squat machine at an Anytime Fitness gym in Pineville, Louisiana. The accident happened as a result of Nearhood’s failure to properly secure the weighted bar with the latching mechanism provided for that purpose. One year after sustaining his injuries, Nearhood filed suit against a number of defendants, including Precor, the manufacturer of the squat machine. In his petition, Nearhood claimed that the squat machine did not provide sufficient warnings or instructions to prevent injuries such as his.

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