Articles Posted in Pain And Suffering Claims

Employers and workers’ compensation insurance companies are continually looking for ways to cut their workers’ compensation claim amounts. For the injured employee, a workers’ compensation claim is a new process. But for the employer and insurance company reducing costs is a continual process. This litigation can even continue to happen years after winning an initial award. This was the case for a Parish of Lafayette employee in a recent case in the Louisiana Third Circuit Court of Appeal. Doctor examinations and testimony about an injury can always be required and, as in this case, improvement of an employee’s condition for the better can call for a reduction in workers’ compensation benefits.

Viel Olivier was a self-employed carpenter who was injured in 2003 while unloading a miters saw from his truck. He had contracted with LUBA Workers’ Compensation for his workers’ compensation insurance. Initially, Mr. Olivier was determined to be temporarily and totally disabled and was awarded workers’ compensation benefits.

LUBA later filed a motion to modify Mr. Olivier’s benefits because LUBA believed that Mr. Olivier was capable of light duty work and was no longer temporary and totally disabled from the injury. Mr. Olivier objected to this change and argued that LUBA was unable to meet its burden of proof with regard to a change in circumstances because the evidence was essentially the same as it had been at the previous hearing.

The workers’ compensation system exists to compensate employees when a work-related accident occurs.  Frequently, however, employers will attempt to deny or at least curtail benefits.  One common tactic is to blame an employee’s injuries on a pre existing medical condition rather than the work accident.  But does this excuse really work when a tree falls on an employee’s head?  As far fetched as it sounds, this was the scenario when an Ouachita Parish employer attempted to stop paying benefits after a tree accident.  

Bruce McCoy worked as a driver and groundsman for W.A. Kendall & Co., Inc. (“Kendall”). Mr. McCoy’s duties included cutting and dumping trees and tree limbs. While at work cutting trees,  a tree fell on Mr. McCoy causing a head injury. He needed treatment for headaches, neck pain, and a skull fracture. Doctors differed as to whether he could return to work and at what capacity. Once it was determined that Mr. McCoy could return to work with certain restrictions, Kendall offered him a job as a groundman.  Mr. McCoy did not respond however and Kendall terminated benefits.  A few months later, Mr. McCoy did request to return to his old position, however, he was denied.  Kendall’s vice-president opined that the denial was based upon Mr. McCoy’s possible inability to do the necessary work of a groundsman. Mr. McCoy then filed a claim for supplemental earning benefits (SEBs). The Workers’ Compensation Judge (WCJ) awarded $18,821.89 to Mr. McCoy in SEBs. Kendall appealed to the Louisiana Second Circuit Court of Appeal arguing that Mr. McCoy’s ongoing disabilities were actually the result of preexisting conditions because Mr. McCoy had diagnosed scoliosis.  

Workers’ compensation benefits are available to an employee for injuries sustained from an accident arising out of and in the course of employment pursuant to La. R.S. 23:1031(A).  A causal connection between accident and injury is established when an employee can demonstrate that before the accident they were in good health and post accident they have a disabling condition demonstrated by medical evidence supporting a reasonable possibility of a causal connection.  See Quinones v. USF & G, 630 So. 2d 1303 (La. 1994).  A pre-existing condition does not automatically bar benefits; the employee must show the accident aggravated the condition. See Peveto v. WHC Contractors, 630 So. 2d 1303 (La. 1994). Aggravation can be shown by a new disabling condition occurring at the time of the accident and supported by medical evidence.  

A lawsuit out of Lafayette Parish demonstrates how Louisiana law allocates workers’ compensation benefits. To qualify for benefits, an employee must be injured during the course of employment. Temporary Total Disability (TTD) Benefits are paid while the employee is unable to work due to an injury. Supplemental Earnings Benefits (“SEB”) are a bit more technical. SEBs are paid when the injured worker has reached “maximum medical improvement” and is no longer eligible for TTD, but is incapable of earning 90% of pre-accident wages.

Our case begins on August 16, 2006, when Ronald Leleux, a carpenter for Numa C. Hero & Son (“Numa Hero”), was injured on the job while trying to escape from a swarm of wasps. About eight months following the accident Leleux was awarded TTD (the “consent judgment”). On November 18, 2010, Leleux consulted Dr. Daniel Hodges for pain management. Nearly two years later Leleux met with Dr. Douglas Bernard, who was recommended by Numa Hero. Dr. Bernard’s report indicated that Leleux had benign degenerative disk disease and that Leleux could perform unrestricted work activities. On August 7, 2013, Leleux saw a third doctor who was appointed by the Workers’ Compensation Judge (WCJ), Dr. Christopher Belleau. Dr. Belleau testified in a deposition that Leleux had reached maximum medical improvement and was capable of sedentary work. Less than one year after Dr. Belleau’s deposition, Numa Hero filed a motion asking to modify the earlier consent judgment. During the trial on the motion, the WCJ considered Leleux’s testimony, Dr. Belleau’s deposition, and the records of Dr. Bernard and Dr. Hodges. The WCJ issued a judgment modifying Leleux’s benefits from TTD to SEB. Displeased with the outcome, Leleux appealed the WCJ’s modification to the Louisiana Third Circuit Court of Appeal.

Pursuant to La.R.S. 23:1221(1)(d), when a claimant’s condition has stabilized and treatment is no longer required, TTD is not appropriate and a determination regarding the extent of the claimant’s disability must be made. See Navarre v. K-Mart, 803 So.2d 206 (La. Ct. App. 2001). La.R.S. 23:1310.8 sets forth the WCJ’s authority to modify compensation awards. Two provisions of La. R.S. 23:1310.8 were at issue in this case: subsection (A)(1), which applies to a reclassification of benefits, and subsection (B), which applies to a change in the amount of compensation or a request to end the payment of benefits.

When you get hurt on the job, it is common to seek workers’ compensation benefits to help with the costs of your injury.  However, the employer will likely at some point seek to diminish or cease payment altogether. In a recent case out of the Parish of Calcasieu, we learn just how far an employer must go in helping a former employee find a replacement job before reducing benefits.

Kenneth Clark was working as an assistant manager at Walgreens in Moss Bluff when he hurt his back.  A visit to Dr. Erich Wolf and an MRI revealed three herniated disks. After undergoing a discectomy and epidural steroid injections, Dr. Wolf released Mr. Clark to work eight hours per day at light to minimal-medium duty. Later, Mr. Clark was determined to have reached maximum medical improvement.

Walgreens voluntarily paid Mr. Clark Temporary Total Disability (TTD) benefits equaling his average weekly wage of $727.37. Once Mr. Clark reached maximum medical improvement, Walgreens changed Mr. Clark’s TTD benefits to Supplemental Earnings Benefits (SEB) to a weekly rate of $244.89 based on Mr. Clark’s wage earning capacity of $360.00. Mr. Clark then challenged the reduction of his benefits and sought penalties and attorney fees.