Pain And Suffering Claims

July 24, 2017

“Who Do You Work For?!” Worker Found to be “Employee” of Another Company in Personal Injury Case Out of Natchitoches Parish

hard-hat-area-1455626-1-1024x732 Getting seriously injured on the job is always a terrible experience, but what if it is unclear for purposes of a lawsuit who you even work for? You know that someone owes you compensation for your injuries, but in this recent case out of Natchitoches Parish that “someone” may not be where your employment application was filed.

International Paper Company (“IPCO”) hired Turner Industries Group, LLC (“Turner”) to perform maintenance work on IPCO’s recovery boiler. Garred Whotte, an employee of Turner, was sent to IPCO to construct scaffolding necessary to the maintenance work. While on the job, his feet started burning, resulting in chemical burns to his feet and ankles. Mr. Whotte brought a personal injury lawsuit against IPCO. IPCO filed a successful motion for summary judgment arguing that it was immune from a personal injury lawsuit under the Louisiana Workers’ Compensation Act (“Act”) which limits recovery to the provisions of the Act. The Tenth Judicial District Court for the Parish of Natchitoches specifically found that Mr. Whotte was a “statutory employee” of IPCO at the time of the injury limiting Mr. Whotte to workers’ compensation benefits. Mr. Whotte appealed to the Louisiana Third Circuit Court of Appeal.

The remedies provided to a worker under the Act are the exclusive remedy an employee can seek against his employer or principal pursuant to La. R.S. 23:1032(A)(1)(a). A “principal” is a person who has contracted with another to perform work as part of the business at the time of worker’s injury. The principal, as the statutory employer, is protected from tort lawsuits and given the protections of the Act as the exclusive remedy for those injured on the job. La. R.S. 23:1061. In the event of a contract between the principal and employer, the contract must contain language recognizing the principal as the statutory employer. Language to this effect creates the presumption of a statutory employer, however, this presumption can be overcome only by showing that the work is not an integral part of or essential to the ability of the principal to generate their goods, products, or services.

July 19, 2017

Caddo Parish, Louisiana Woman Injured At Work Can Only Recover Once for Her Injuries

by Berniard Law Firm

vertebrea-3-1559248-1024x768 “My neck, my back, my neck and my back” is a cliche that has been used in television shows and movies when someone gets hurt in an accident and likely tends to file a lawsuit. Although Caddo Parish, Louisiana woman, Ruth Toliver, may not have used the exact phrase, she did fall on the job and filed for workers’ compensation benefits. After receiving a workers’ compensation settlement, she filed a lawsuit to recover for additional injuries. But whether Ms. Toliver could recover twice proved another matter.

While on the job working for Entergy Services, Inc (ESI), Ruth Toliver injured her neck and left shoulder when she fell from a three-foot high stepladder and hit the floor. She received workers’ compensation benefits shortly after the incident and continued to receive the benefits until they were terminated close to the end of 2010. Mrs. Toliver disputed the termination of benefits with the Office of Workers’ Compensation in January of 2011. Mrs. Toliver and ESI agreed to settle the matter for $58,909.93 that would be paid to Mrs. Toliver, plus all the related medical bills that she incurred prior to the date of settlement. The agreement provided that $43,909.93 of the settlement would be earmarked for a Medicare account for future medical bills. The total amount of workers’ compensation benefits that ESI paid Mrs. Toliver was $397,763.75.

The agreement released ESI from any and all liability for the work accident. About two years after signing the settlement agreement, Mrs. Toliver filed a lawsuit with the Louisiana Trial Court, claiming that in addition to her initial injuries, she also injured her head, right shoulder, and back in the fall. ESI objected to Mrs. Toliver’s lawsuit based on the settlement agreement. ESI argued that she was barred by claim preclusion because the settlement agreement was signed into a final order of approval and dismissal. The Trial Court agreed and Mrs. Toliver appealed the decision.

July 13, 2017

Louisiana Future Lost Wages Award Reduced Based on Lack of Evidence for Longer Work-Life Expectancy

by Berniard Law Firm

barge-1544176-661x1024 Sometimes we are asked to do a task at work that we do not feel qualified to perform. We think things like, “Hey, that wasn’t in my job description.” Well, that’s essentially what happened to Mark Barto but, unfortunately, attempting to perform his assigned task resulted in a back injury that led Mr. Barto to file a lawsuit.

Mr. Barto worked for Shore Construction, LLC (“Shore”) and was assigned by his company to perform the duties of a rigger on a derrick barge operated by McDermott, Inc. (“McDermott”). Unfortunately, Mr. Barto was met with the rare task of inspecting and providing maintenance on a cable crane. In fact, this type of job is done approximately once every two years. Mr. Barto had no experience providing this kind of maintenance and yet his superiors requested that he assist and then re-spool the cable. Mr. Barto was given no guidance on how to do the task and, according to the affidavits of a crewmember, he was “one of the lowest ranking riggers on the barge.”

To allow himself to effectively complete the task, Mr. Barto set up a makeshift scaffold within the spooling frame, as he seen someone else performing the task do. In this case, he laid a fir board across the frame to stand on in order to reach the cables.

July 10, 2017

Mother May I? Louisiana’s Broad Definition of “Permission” Results in Insurance Company’s Liability in Case Out of Shreveport

by Berniard Law Firm

desertic-road-1446241-1024x768 Employees can pit employers against each other just like children do with parents. If permission is limited by one person the employee/child will simply repeat their request to the other party. What an employee is permitted to do can be ambiguous. In a recent automobile accident case out of Shreveport however, the Louisiana Second Circuit Court of Appeal affirmed that employer “permission” in Louisiana provides a wide berth to an employee and can result in unexpected liability.

A former employee of Water Works Irrigation Inc. (“Water Works”), Lovell Ellis, used his assigned company truck to pick up his girlfriend, Raquel Coleman, outside of his normal service area. While the two were in the truck, Mr. Ellis ran off the road, wrecking the truck and injuring Ms. Coleman. Ms. Coleman claimed that Mr. Ellis was texting while driving and ran off the road. In his deposition, Mr. Ellis denied being on his phone but explained his swerving to avoid a log caused the accident. Later Mr. Ellis pled guilty to Driving While Intoxicated (“DWI”) but claimed that he drank only one beer.

As a result of the accident, Ms. Coleman sustained fractured vertebrae as well as other injuries. In January of 2012, Ms. Coleman filed a personal injury lawsuit against Mr. Ellis, Water Works, and Water Works’ Insurance company, United Fire Insurance (“United Fire”), seeking damages. After the dismissal of Water Works, the trial proceeded against Mr. Ellis and United Fire. The District Court found Ellis 100% at fault and United Fire liable for coverage. The District Court awarded damages of $47,449.67 to be paid by either or both defendants.

July 9, 2017

Louisiana Seaman Loses Lawsuit Due to Insufficient Evidence and Conflicting Testimony

by Berniard Law Firm

boat-1392202-1024x683 On the sea, a life jacket can save your life. In the courtroom, the life jacket that can save your case is provable and relevant facts. Seaman, Frank Glaze, recently found this to be true when a Louisiana Court dismissed his Jones Act personal injury case due to a lack of evidence.

Mr. Glaze was injured while he performed maintenance on the M/V SNIPE as relief captain for Higman Barge Lines. Mr. Glaze contended that he suffered “numbness in his hands” as he worked with the needle gun. He also claimed elbow, knee, and lower back pain occurred soon after he completed his work. Because of these injuries, Mr. Glaze sued his employer seeking relief under the Jones Act.

First, under “The Jones Act” Mr. Glaze claimed his injuries were the result of nonperformance of a “job safety analysis” and no policy regarding the length of time for a seaman to utilize a needle gun nor methods for proper use. Next, he claimed the M/V SNIPE was an “unseaworthy vessel” because of “unsafe methods of work.” Mr. Glaze further argued that the work technique was unsafe because: (1) the “job safety analysis” was not completed; (2) there were no “housekeeping” procedures in place; and (3) he was only allotted a small window of time to “chip and grind the rub rail.”

July 6, 2017

Causal Connection Between Accident and Injury is Key in Workers Compensation Lawsuit

by Berniard Law Firm

worker-1-week-1501458-1024x681 An accident at the workplace is never fun, not for the employer, and certainly not for the employee. In addition to the difficulty of the injury itself, determining who pays for the medical treatment is often in dispute. Whether there is enough evidence to show that the accident actually caused the injury helps a judge decide if the employer is required to pay. This connection may also play into whether the payment will be limited to a $750 cap.

Ms. Mangiaracina, an employee with Avis Budget Group, injured her shoulder, back, and thumb, at her workplace when her office chair fell forward. Ms. Mangiaracina had a pre-existing injury to her left shoulder for which she was receiving medical treatment. This injury did not affect her ability to work, and after the accident, her doctors found that her shoulder worsened. She had surgery a few months later. An adjuster for Avis’ insurer determined that all of Ms. Mangiaracina injuries were considered pre-existing and did not make any payments for the medical expenses. Avis’ insurer responded to requests for payment by stating the need for the surgery was not related to the workers’ compensation claim.

As a result, Ms. Mangiaracina filed a disputed claim for compensation. The Office of Workers’ Compensation ruled for Ms. Mangiaracina and awarded her temporary total disability benefits on a weekly basis against Avis. The workers’ compensation judge decided that Ms. Mangiaracina did, in fact, sustain a work-related injury, that her pre-existing injury was actually aggravated by the accident and that the surgery was reasonable. The judge determined that she was disabled for three months after the surgery, and as a result awarded her all the related medical and transportation expenses against Avis.

July 5, 2017

One Police Officer Found Not to Use Excessive Force, Others to Go to Trial

by Berniard Law Firm

on-patrol-1565455-1-1024x683 Over the last few years, we have all seen the videos of police arrest that seem to involve excessive methods. These videos stoke controversy and encourage a discussion on what constitutes “excessive force” during an arrest. Even with video evidence, the actions of the police and the arrestee are subject to multiple interpretations. The search for the truth becomes even harder when the arrest is not videoed and the participants all give different testimony on those events. The following case out of Shreveport Louisiana demonstrates how the Civil court system handles differing testimony on allegations of excessive force during an arrest.

In July of 2012, Bobby Byrd filed a lawsuit as a result of what he alleged was the use of excessive force during an arrest against Roy Shore of the Bossier Police Department and W.W. Lindsey and Robert Gordon of the Shreveport Police Department. Mr. Byrd’s excessive force claims revolve around a police chase of Mr. Byrd. It all started when Detective Gordon, believing that the vehicle that Mr. Byrd drove at the time matched a vehicle tied to a string of burglaries, attempted to pull over Mr. Byrd. Instead of stopping, Mr. Byrd drove away from the police officer, crossing from Shreveport to Bossier. Eventually, Mr. Byrd abandoned his vehicle at the Red River and proceeded on foot into the Red River. The police, with a police canine in hand, continued after Mr. Byrd. During this pursuit, the riverbank caved in, causing the police canine to fall into the river. The officer holding the canine, Officer Yarborough of the Shreveport Police Department, released the canine’s leash. The police canine, instead of listening to the Officer Yarborough’s order to return to the riverbank, pursued Mr. Byrd and bit him. Mr. Byrd fought back, disorienting the police canine and causing the canine to retreat back to the riverbank. The officers eventually retrieved Mr. Byrd from the river.

It is at this point that the stories of Mr. Byrd and the police officers diverge. Mr. Byrd claims that after returning to the riverbank he fully complied with the officers’ requests and that after the police officers handcuffed him they proceeded to strike him. In contrast, the police officers claim that Mr. Byrd did not comply with their instructions and that Mr. Byrd reached towards his waistband which was submerged underwater. The officers, believing that Mr. Byrd could have a weapon in his waistband, deployed “distraction strikes” in order to subdue Mr. Byrd. Regardless of the stories, Mr. Byrd suffered multiple injuries: “a dog bite wound, wounds to the forearms, a broken nose, a broken orbital floor requiring surgical reconstruction with a titanium plate, kidney trauma, and abrasions to his ribs” because of this incident.

July 3, 2017

Inability to Show Work Related Injury Crushes Workers’ Compensation Case Out of Monroe

by Berniard Law Firm

pipes-1446925-1024x683 In the world of workers’ compensation, being injured while on the job is an obvious requirement. Things tend to get muddled however in these cases over accident dates, pre-existing injuries, and the actual cause of the injury. In the following case, Carlos Harvey had all these things working against him in his claim for workers’ compensation benefits against his employer Sol’s Pipe & Steel (“Sol’s”).

Mr. Harvey allegedly suffered a shoulder injury while pulling steel weighing between five and 550 pounds. Initially, Mr. Harvey stated the injury occurred on August 8, 2011. Mr. Harvey testified he reported the accident to his supervisors, T.J. Anderson and Mark Price, then reported to LSU E.A. Conway Memorial Hospital for treatment. Mr. Harvey went to the hospital several more times and an MRI confirmed a shoulder injury.

To receive workers’ compensation benefits, an employee must show he suffered a personal injury by an accident arising out of and in the course of his employment. La. R.S. 23:1031(A). The employee shows an on the job injury by proving that before the accident he was in good health and his symptoms of the disabling condition appeared after the accident. See Dow v. United Parcel Service, 124 So.3d 36 (La. Ct. App. 2013). Additionally, the employee must bring the claim within two years of the accident.

June 25, 2017

Disability ERISA Insurance Claims Require Timely Production of Evidence

by Berniard Law Firm

accessibility-1538227-1-1024x768 Navigating an ERISA disability insurance claim through the courts can be a difficult task. The best ERISA disability isurance claim lawyers can help be your guide to ensure your rights are protected. The following case that arises out of the Federal Court system in New Orleans demonstrates the issues that can arise when you fail to timely provide the required documents to prove your case and your insurer denies your disability claim.

The case began when Angel Dix a two-year employee of Blue Cross Blue Shield Louisiana began experiencing back pain. Her doctors deemed her disabled for insurance purposes and she began receiving disability benefits under the company’s long-term disability program. Less than a month later, Dix was notified that she would no longer receive disability payments by her insurance company. The letter stated that the administrator found that the medical evidence “no longer supported a finding of disability.” The administrator considered medical opinions from treating and reviewing physicians, findings of an independent medical evaluation, and a vocational expert’s report. Dix appealed the decision.

During the initial review process, the administrator asked Dix whether she would like to submit additional documentation, and even gave Dix an extension on the deadline for submitting documentation. Dix failed to submit any additional information. The record was reviewed and the decision of the administrator was upheld. Then, approximately one year and three months after the administrator issued its final decision in her appeal, Dix submitted medical records, X-rays, MRIs, affidavits, and a favorable Social Security Administration decision. The affidavits were from two of her doctors stating that they do not recall speaking with the reviewing physician. The administrator declined to add the documents to the administrative record because Dix has exhausted her administrative remedies.

June 22, 2017

Woman Awarded No Damages For Slip and Fall Accident at Nail Salon in Baton Rouge

by Berniard Law Firm

When going to the nail salon, the last thing anyone thinks about is falling and getting seriously injured. Slip and fall accidents happen all the time, and it is important to gather as much evidence as possible and retain a good personal injury attorney in order to build the best possible case for yourself. The courts do not look favorably on those who make a claim and have very little evidence to back it up, as Pamela Burnett (“Ms. Burnett”) discovered when trying to win damages from the Lucky Nails salon.

On August 20, 2012, Ms. Burnett went to the Lucky Nails salon in Baton Rouge, Louisiana to get a standard nail polish change. All was going well at the salon, but as she was walking toward the pedicure chairs after choosing a polish color, she slipped and hit her head on the foot rest of one of the chairs. Ms. Burnett filed a lawsuit against the nail salon and its insurer, State Farm Insurance Company. Ms. Burnett alleged that the nail salon was negligent in maintaining the property and the floor of the salon. The defendants filed a motion for summary judgment because Ms. Burnett could not prove that there was a foreign substance or hazardous condition on the floor, that the nail salon created or had actual or constructive notice of the hazard, and that the salon failed to exercise reasonable care. The Trial Court found the evidence did not demonstrate that there was anything obvious on the floor. Ms. Burnett testified that the floor felt slippery, but was unable to identify what kind of substance was on the floor. The Trial Court granted the defendants’ motion for summary judgment on September 9, 2014, and dismissed the suit with prejudice. Ms. Burnett appealed this decision to the Louisiana First Circuit Court of Appeal.

On appeal, the First Circuit addressed Ms. Burnett’s argument that the Trial Court failed to look at the most critical evidence of the case. This evidence was a video recording of Ms. Burnett’s fall at the nail salon. The Trial Court stated that they were unable to see the video, however, they had plenty of still photographs taken directly from the video recording. The photographs clearly depicted the floor of the salon and they showed no substance or liquid on the floor. The First Circuit was able to view the video but found that it did not matter that the Trial Court was unable to view it because it did not present any new conclusions to reverse the summary judgment decision.