Pain And Suffering Claims

July 31, 2019

What Happens When Your Employer Is Not Paying Your Workers Compensation Medical Costs?

What happens when a verdict that the employee is entitled to Workers’ Compensation Benefits has been handed down by the Office of Workers’ Compensation, but the awarded medical benefits have not and are not being paid? Generally, an employee will move for penalties and attorney fees to be imposed on the employer or its insurer for failure to pay the benefits. Under Louisiana law, awarded medical benefits must be paid within sixty days of the employer or insurer receiving notice that the employee has been awarded medical benefits. La. R.S. 23:1201. Failure to pay the medical benefits within sixty days requires the imposition of penalties and attorney fees on the employer or insurer unless the employer or insurer reasonably controverts the employee’s claim. Id.

Vanessa Weaver (“Ms. Weaver”) was awarded supplemental earning benefits (“SEB”) after proving that she was injured at work by falling and hitting her wrist on a pipe, and that she was not able to make 90 percent of her pre-injury wage regardless of whether she was in the same or similar occupation that she had prior to her on-the-job injury. See La. R.S. 23:1221. Her employer Louisiana Wholesale Drug Company, Inc. (“LWD”) contended that the Office of Workers’ Compensation erred in awarded Ms. Weaver SEB’s. As a result, LWD failed to pay Ms. Weaver her awarded medical benefits within sixty days of LWD and its insurers being put on notice of the award.

As mentioned above, LWD may get around the requirement to pay penalties and attorneys’ fees for their failure to pay Ms. Weaver her medical benefits within sixty days, if they reasonable controvert her claim. La. R.S. 23:1201. Meaning, LWD must present sufficient factual and medical information to reasonably counter the evidence provided by Ms. Weaver. Mouton v. Walgreen Co., (La. App. Cir. 2008). LWD was able to controvert Ms. Weaver’s claim with the theory that Ms. Weaver was able to continue working at her pre-injury job, making her pre-injury salary.

July 30, 2019

What Happens If You Can’t Earn Your Original Salary After a Workers Compensation Claim?

by Berniard Law Firm

arm-bandage-hands-1409706-1024x709 What happens with Workers’ Compensation Benefits when you are still able to work, but cannot make your pre-injury wage? Are you entitled to the difference in pre-injury and post-injury wages? Or are you out of luck? Supplemental earning benefits (“SEB”) are paid at two-thirds of the difference between what a person earned before their on-the-job injury and after their on the job injury, whether working or not. SEB’s are available to an individual who was injured at work and is unable to earn at least 90 percent of their pre-injury salary due to the injury. La. R.S. 23:1221.

It is uncommon for the employer, Louisiana Wholesale Drug Company, Inc. (“LWD”), in this case, to argue that the employee is not entitled to SEB’s for a multitude of reasons. Here, for example, LWD is arguing that Vanessa Weaver (“Ms. Weaver”), is not entitled to SEB’s because she voluntarily terminated her employment while LWD was accommodating Ms. Weaver’s work restrictions. Ms. Weaver, on the other hand, alleges that she terminated her employment because LWD was no longer accommodating her by requiring her to lift a box, which was against her work restrictions.

While working at LWD, a box of glass bottles began to fall, so Ms. Weaver dove to stop them from shattering, as she dove, she hit her wrist on a pipe. She went to the hospital, which noted swelling, bruising, and soreness. The doctor allowed her to return to work, but ordered restrictions, including that she was not able to use the injured part of her hand (i.e., her wrist). The injury occurred in March of 2013, and in July 2013 when she terminated her employment her wrist was still sore, and there was a palpable “click.” Further, in July 2013 her work restrictions had not been lifted. As a result, when Ms. Weaver terminated her employment, she alleged that she was entitled to SEB’s because she could not make her pre-injury salary, as LWD was no longer accommodating her injury.

July 28, 2019

What to do When Insurance Denies Treatment in Caddo Parish

by Berniard Law Firm

red-faced-ghoul-1309146-1024x681 On the job injuries often present complicated healthcare-related decisions., especially when it comes to pain management. What happens when an insurer denies a successful treatment option? In the case of one Caddo Parish employee, securing effective pain management became an equally difficult encounter.

After suffering a work-related injury, Ms. Veronica Black began experiencing chronic pain in her hands. Ms. Black sought treatment from both an orthopedic surgeon, and a pain management specialist. She was diagnosed with two disorders, chronic regional pain syndrome (CRPS) and carpal tunnel syndrome (CTS), and prescribed a powerful topical cream. Thankfully, the prescribed cream alleviated some of Ms. Black’s pain.

In spite of this solution, CenturyLink’s insurer denied the approval request that Ms. Black’s doctor filed, stating the topical cream could not be considered a medical necessity. Ms. Black filed a claim in response to the Medical Director for the Office of Workers’ Compensation Administration, disputing the insurer’s determination. On February 11, 2015, the Medical Director denied her request, citing a lack of research supporting the topical cream’s use in effective pain management. Ms. Black also filed compensation claims against CenturyLink, and its insurer, Sedgwick, soon after. These claims were similarly unsuccessful.

July 23, 2019

Can You Receive Workers Compensation for an At-Home Injury?

by Berniard Law Firm

workers-1215831-1-1024x683 Worker’s compensation protects workers from unexpected accidents by providing for their medical care and lost wages if ever they suffer an incapacitating accident. And in most instances, a worker’s compensation claim will cover any subsequent accidents which arise from the work-related injury. But when the link between a new accident and the original work-related one is too far removed, an injured worker may have difficulty advancing his claim. For example, can you file a workers compensation claim for an at-home accident?

On July 21, 2014, Raymond Namias was alone when he suffered an injury on the job. The engine upon which he was working slid backward, smashing his right hand. Namias claimed the accident caused additional damage to his right wrist, shoulder, and back. About a month later, on August 31, Namias fell down his stairs in his home. Namias claimed the two accidents were connected, asserting back pain from the job site injury caused numbness in his leg, and that the numbness caused the fall. He filed a worker’s compensation claim for the injuries sustained in both incidents.

Namias’ employer, Sunbelt Innovative Plastics (“Sunbelt”), disputed the extent of his injuries. Additionally, Sunbelt disputed the fact that Namias’ work-related injuries caused his August 31 fall at home. Sunbelt asserted that Namias was not entitled to workers’ compensation for either incident. The matter went to trial before a Worker’s Compensation Judge (“WCJ”).

July 19, 2019

Firefighter’s Widow Continues the Fight for Survivors Benefits in Jefferson Parish

by Berniard Law Firm

No one can ever truly be prepared for the death of a loved one. It can present many unforeseen challenges, especially when complicated by the process of obtaining survivors’ benefits.

After the death of her husband, Jane Butler filed a “disputed claim for compensation” seeking death benefits, as allowed under La. R.S. 23:1231, with the Office of Workers’ Compensation (OWC). La. R.S. 23:1231 provides benefits for any legal dependents of an employee whose death occurs within two years resulting from an injury. Mrs. Butler filed the disputed claim on January 7th, 2013. Her husband Robert Butler, a retired Jefferson Parish firefighter, passed away from a heart attack on May 5th, 2013.

Mrs. Butler contended her husband experienced chest pains and underwent surgery placing a stent in his right coronary artery in July 2004. On September 23rd, 2004, Mr. Butler filed a claim under La. R.S. 33:2581, commonly known as the Heart and Lung Act, for compensation and disability benefits. Mr. Butler continued to receive these benefits up to his death in May 2013. However, Mr. Butler’s original death certificate listed his death as attributable to “unspecified natural causes.” The coroner corrected Mr. Butler’s death certificate to appropriately reflect the cause of death, myocardial infarction, in October 2014.

July 17, 2019

Elayne Hunt Correctional Facility Negligence Leads to Payout for Inmate

by Berniard Law Firm

68-photo-3_26_19-819x1024 Can an inmate be awarded damages from an injury caused by the employees of the correctional facility? According to the 5th Circuit Court of Appeal, the answer is yes. Mr. Miller was an inmate at Elayne Hunt Correctional Facility when an employee of the facility pulled him out of his bunk and threw him on the ground. Miller sued Captain Credit and the State of Louisiana for negligence under state law as well as violations of the 8th amendment under 42 U.S.C. §§ 1331 and 1983. Miller claimed that Captain Credit, as an employee for the state of Louisiana violated his civil rights with his act of negligence and that the federal district court has jurisdiction in this case.

When the case went to trial, a jury found that the employee acted with negligence and therefore awarded Mr. Miller damages. Captain Credit moved to alter the judgment under Fed. R. Civ. P. 56(e), arguing that Miller failed to prove a causal relationship between his shoulder injury and the negligent act. The district court denied their motion and they appealed the Fifth Circuit.

Federal Rule 59(e) gives the district court the authority to alter or amend a judgment when they have committed a “manifest error of law or fact”, and the appellate court reviews for an abuse of discretion. See Schiller v. Physicians Res. Grp., 342 F.3d 563,567 (5th Cir. 2003). For this type of appeal, the district court’s decision and the decision-making process need only be reasonable for the decision to be affirmed.

July 4, 2019

Unwelcome Bite at Kiwanis Club Pancake Festival Leads to Litigation

by Berniard Law Firm

tahoe-beetschen-1368685-unsplash-1024x683 The bond between people and their dogs can be one as close as family. Whether they serve as pets, guides, or even co-workers, dogs can provide a type of comfort and comradeship that is completely unique. It is sometimes easy to forget that dogs are animals that can chase, scratch, and even bite on a moment’s notice. While most people don’t like to believe that their canine companions would hurt others, many dogs—even the most docile or trained—are capable of causing harm quickly, and it is important to know how to handle these situations. This issue was explored in a case appealed to the Louisiana First Circuit Court of Appeal after an incident at Louisiana State University.

On October 20, 2012, the Kiwanis Club Pancake Festival (“Pancake Festival”) was in full swing at the Louisiana State University Pete Maravich Assembly Center. Officers Matthew Hall and Johnny Sparks attended the event. Officer Hall brought and was in charge of his K-9, Sita, a Belgian Malinois. Officer Sparks brought a robot that the state police use for detecting explosives. The officers stayed outside of the Pancake Festival to educate the public about Sita and the purpose of the robot. During the event, patrons had permission to approach and pet Sita.

Fredericka Bradley, a 10-year-old child, attended the Pancake Festival with her mother, Hazel Bradley, her cousin, Preston Henderson, and two neighbor children, Bradisa White and Sade Townsend. After eating breakfast, Mrs. Bradley stayed inside while the children went outside. At this point, each party in the litigation has a different story as to how events unfolded. According to Officer Hall, Sita sat next to him—leashed—as patrons came up to them. Fredericka approached and asked pet Sita. She also tried to hug the dog, but Hall told her not to. Fredericka walked away, then returned to pet Sita again. Officer Hall was sitting with Sita, speaking to a man and two children when Fredericka came up a third time. Officer Hall claimed Fredericka tried to sit on Sita, so he pulled Fredericka away and reminded her only petting was allowed. While Officer Hall pet Sita’s neck, Fredericka came behind the dog and pet her head. Sita snapped at the child and bit her on the face, leaving a small puncture wound. Officer Hall stated Sita had not shown any aggression prior to the incident.

June 27, 2019

Louisiana Appellate Court Tackles Intra-Familial Dispute in Simsville Dog Bite Case

by Berniard Law Firm

dog-1534524-1024x768 Litigation between family members can be uncomfortable for everyone involved. But what happens when a plaintiff sues a relative, then passes away, and the relative then becomes the plaintiff? Louisiana’s Second Circuit Court of Appeal recently addressed this unusual situation in a case involving a vicious dog attack.

In May of 2011, Evelyn Goers, 89, was visiting her daughter Laureen Mayfield in Simsville, Louisiana. Goers was attacked and injured by four of Mayfield’s large Tibetan Mastiffs. In May 2012, Goers filed a lawsuit for damages against Mayfield and her homeowner’s insurance company, State Farm. Goers passed away in February 2015, after which Goers’s other daughter, Cheryl Goers, filed a petition to substitute herself as a plaintiff in the lawsuit against Mayfield. The next month, Mayfield made a motion to substitute herself as a plaintiff. The trial court granted both motions. State Farm then filed an exception based on the theory that there was no right of action because Mayfield was both plaintiff and a defendant, thus extinguishing the obligation by confusion. La. C.C. art. 1903. Cheryl Goers filed a response requesting that State Farm’s exception be sustained without a hearing but did not include a proposed judgment to that effect. State Farm then submitted a proposed order granting the exception. Cheryl Goers raised no objection to this action by State Farm. The trial court signed State Farm’s order, dismissing Goers from the lawsuit entirely as both defendant and plaintiff. Cheryl Goers then filed an appeal arguing that the trial court’s order was improper because it extinguished her right of action against Mayfield; an exception for no right of action, she argued, can dismiss a plaintiff, but not a defendant from an action.

Under Louisiana law, an appeal cannot be made by a party who voluntarily and unconditionally accepted without protest a judgment rendered against that party. La. C.C.P. art. 2085. State Farm conceded that under the Direct Action Statute, Cheryl Goers could still maintain a claim against State Farm. La. Rev. Stat. 22:1269 (2012), The Direct Action Statute requires that insurance policies issued in the state provide that the heirs or survivors of any claimant under the policy can maintain the claim. However, as for Cheryl Goers’s action against her sister, the Court of Appeal noted that she voluntarily and unconditionally accepted the trial court’s order without protest because she agreed with the exception and did not oppose the order when the trial court approved it. Therefore, reasoning that Cheryl Goers lacked a basis for the appeal, the Court of Appeal affirmed the trial court’s judgment.

June 26, 2019

Louisiana Department of Transportation Avoids Liability in Multi-Car Pile-Up Case

by Berniard Law Firm

metal-1314941-1-1024x680 It is all too easy to forget just how dangerous driving can be. In addition to human factors such as sleepiness, being distracted, and stress, there is also the unpredictability of the road. Uncontrollable circumstances such as the weather or wild animals that dart into traffic can turn a regular commute into a devastating experience. But who is to blame when something unforeseeable, such as a force of nature, causes a highway catastrophe? This issue was addressed after a multi-vehicle accident on Interstate 10 near the Michael Boulevard exit in New Orleans on December 29, 2011.

Randall White’s car was the 25th of the 40 vehicles involved in the accident. White and his wife filed a lawsuit against the Louisiana Department of Transportation and Development (“DOTD”), the City of New Orleans, and the Little Pine Limited Partnership “Little Pine.” The Whites claimed that the pile-up was caused by thick fog combined with smoke from a marsh fire that had been burning since August 2011 on land owned by Little Pine. According to the Whites, the fog and smoke, in combination with faulty street lights, compromised visibility on the highway and caused the accident.

The DOTD filed a motion for summary judgment, a motion for judgment as a matter of law rather than on the merits of the case. La. C.C.P. art. 966. The DOTD argued that it had no notice of the fog in the area, had no responsibility for the street lighting issue, had no duty to protect the Whites from the fog or smoke, and it was shielded by governmental immunity. To support the motion, the DOTD relied on affidavits from DOTD engineers, the New Orleans Public Works Director, and the New Orleans City Council, as well documents such as the New Orleans Police Accident Report and the National Weather Service Report from the date of the accident. The trial court granted the motion and dismissed the Whites’ claims. In response, the Whites appealed to Louisiana’s Court of Appeal for the Fourth Circuit.

June 15, 2019

Baton Rouge Patient Awarded Damages After Extremely Rough Swedish Massage, Part 1: Determination of Negligence

by Berniard Law Firm

massage-chair-1479054-769x1024 A therapeutic massage can offer many medical benefits. But if the massage therapist uses too much force, or applies force in an inappropriate way, severe injury to the patient can result. In such cases, an experienced personal injury attorney may be needed in order for the patient to recover damages for medical bills, lost time from work, as well as pain and suffering.

Dr. Maureen Jones received a Swedish massage at the Paris Park Salon in Baton Rouge on October 11, 2007, from therapist Larry Ashton. Jones claimed that during the massage, Ashton was very rough and applied heavy pressure and force, which caused Jones to experience pain and discomfort. The next day, Jones suffered continued sharp and burning back pain. The pain radiated into her buttocks and right leg, where bruising was also present.

Jones sought medical treatment, during which an MRI revealed that she had sustained a rupture of her L4-L5 disc. Jones first attempted to treat the condition without surgery, but eventually, due to continued debilitating pain, she underwent a left L4-L5 discectomy operation. Jones then filed a lawsuit against Ashton, Paris Park Salon, and the salon’s insurance carrier, ABC Insurance Company (“defendants”). Jones alleged that the message was negligently performed by Ashton, whose negligence breached the reasonable standard of care causing serious, permanent, and disabling injuries.