Articles Posted in Pain And Suffering Claims

No one wants to be injured at work and thus be unable to continue working to pay one’s bills.  Worker’s compensation exists to assist employees who may have been badly injured in the workplace. Among the benefits that may be paid after an employee has suffered a debilitating injury are temporary total disability benefits, (TTD), and supplemental earnings benefits (SEB). TTD benefits are awarded on an employee’s proof that he or she cannot work at all following injury, equal to two-thirds of the pre-injury wages. La.R.S. 23:1221(1)(c).  Supplemental earnings benefits are paid out when an employee is limited in his or her earning capability following an injury, payable at two-thirds of the difference between wages before the injury and those earned after returning to work. La.R.S. 23:1221(3)(a)(i).  Upon proof of an employee’s ability to work productively, an employer may be able to change the higher TTD payments to SEB payments.

In Louisiana, just because an employee has suffered from conditions that predate an incident of injury does not mean that that employee is to be prevented from recovery under worker’s compensation for that work-related injury.  If some accident in the workplace aggravates or reinjures a part of the body that has been previously injured, and this aggravation is to the point of disability, then an injured employee may bring a claim for disability.  The plaintiff still must prove that the workplace injury in question caused the disability.  However, it is enough to show that the injury could be factored into the chain of events that created the disability.  In this situation, the employee must show only that the disability did not exist before the accident, that the symptoms arose after the accident, and evidence that tends to show that it is possible that the disability could have resulted from the alleged incident.

As people age, their bodies become frailer and prone to injury.  Medical procedures necessary to restore one’s abilities to function in daily life as well as the workplace have beneficial effects but can also leave a person vulnerable to an increased risk of injuries.  These factors, alone or combined, can mean that an injury that does not sound very serious can prove debilitating to a person, as Cathy Turner discovered.  In December 2011. the 60-year-old Ms. Turner was a full-time admissions coordinator at the Lexington House nursing home in Alexandria, Louisiana.  On December 12th, she was accidentally struck on the hip by a swinging door.  This injury just so happened to be at the same location as her recent total hip replacement surgery in September of 2011.  This was the site of two previous hip surgeries as well.  After this incident, she experienced a tremendous amount of pain and inability to walk or even stand on the injured hip.  Multiple doctors concluded that Ms. Turner had become disabled due to the injury and the additional surgery required to help ease the constant pain. The extent of her injuries necessitated that she obtain a motorized scooter in order to get around when before she had been able to walk.  As such, the evidence tended to show that the disability stemmed from the work injury rather than the several pre-injury operations.  Most people who undergo these varieties of surgeries, according to the medical evidence, generally see improvement.  Regardless, Lexington House refused to pay the disability payments, claiming that her preexisting condition the three previous surgeries. The company also did not pay any supplemental earnings or for necessary medical tests.  Ms. Turner filed a worker’s compensation claim.  The Office of Worker’s Compensation (OWC) ordered her employer to pay her disability payments, an award for reconstructive surgery and medications, and penalties for failing to pay out certain specified benefits.

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When it comes to work-related injuries, employees should know their rights. Under Louisiana law, employees who suffer from an injury caused by an on-the-job accident are entitled to workers’ compensation benefits. In order to successfully make a claim for those benefits, employees must prove their claimed disability is related to an on-the-job injury. In accordance with their benefits, employees have the right to select one treating physician in a particular field or specialty and the employer is required to pay for all approved necessary expenses. A decision arising out of Calcasieu Parish illustrates just how critical the treating physician’s opinion is in determining whether a claimed disability is work related.

In 2010, Lauryn Ruebush (Ms. Ruebush), a nurse, was injured on the job at The Care Center of Dequincy (the care center) nursing home when she intervened in a scuffle between two patients. During the incident, Ms. Ruebush was struck with an aluminum walker and after the injury, she experienced pain and discoloration in her left hand and wrist. She consulted an orthopedic surgeon who treated the injury with an injection and nerve block; all to no avail.

After a workplace injury, navigating the benefits provided by workers’ compensation can be a complicated process. Workers’ compensation judges’ decisions are rarely overturned when their rulings are largely fact-based. A recent lawsuit out of Ouachita Parish demonstrates the importance of finding a good lawyer who can ensure that you secure all entitled benefits and can navigate through the legal system when issues arise.

Gay Lowery worked for Jena Nursing & Rehabilitation in 2012 when she was injured while repositioning a patient. Thereafter, Lowery received workers’ compensation benefits until the workers’ compensation insurer, Technology Insurance Company, denied her request for a cervical fusion. In accordance with Louisiana law, Lowery sought a determination on the coverage of her cervical fusion from the medical director. La. R.S. 23:1203.1. The director denied her request for surgery, claiming Lowery did not fulfill the required indications for cervical fusion under state law. Indicators include proof in the form of documentation of medical problems, imaging studies, and psychological evaluations.

Lowery challenged the medical director’s decision in workers’ compensation court. Her employer and the insurer were ordered to provide the surgery because the medical director wrongly concluded that Lowery failed to meet any of the required indicators. The workers’ compensation judge (WCJ) found that Lowery fulfilled all of the necessary indicators by showing that they were met through her testimony or medical evidence. The defendants appealed the decision asserting that there was no clear and convincing evidence the medical director’s decision was not in accordance with the guidelines.

Witnesses often play a critical role in the outcome of a lawsuit, which is why opposing parties often try to discredit witnesses that may be harmful to their argument. In a recent case where a plaintiff attempted to discredit a witness for the defense, the opinion of the judge who actually heard the witness testimony reigned supreme.

Billy Carrier was injured in a work-related accident during his employment with the city of Eunice, Louisiana.  Initially, the city paid Carrier workers’ compensation benefits, but disputes between Carrier and the city regarding the benefits arose. In 2010, those disputes were brought before a court. Tiffany Harrington, the vocational rehabilitation counselor assigned to Carrier, was called as a witness in the proceeding. Harrington’s testimony was used to establish Carrier’s wage earning capacity by detailing job availability. The city used this evidence to support its effort to reduce or eliminate Carrier’s weekly benefits.

The workers’ compensation judge (WCJ) felt that it was premature to make a ruling based on Harrington’s testimony which only included a transcript and timeline of events. The WCJ delayed the ruling until Carrier received proper vocational rehabilitation which took into account his skills, mental abilities, and physical capabilities. The city attempted to appeal this decision, but its attempts were denied because medical evidence did not support the city’s contention that Carrier could find employment. Instead, the WCJ ordered Harrington to schedule a face to face meeting with a vocational rehabilitation counselor to determine what type of work, if any, Carrier could perform.

If you have been injured in a work accident, it’s important to know that limitations and restrictions are often placed on your rights under workers’ compensation packages. Speaking to a good lawyer before undergoing any non-emergency treatment is crucial to ensuring that you will be reimbursed for your expenses. A case arising out of Lafayette, Louisiana illustrates the importance of this point.

In this case, Brett Bourque (Mr. Bourque) sustained a work-related injury during his employment as a truck driver with Transit Mix in 1998. A few years after the accident, two doctors agreed on surgery as a course of treatment for Mr. Bourque’s continued back pain from the injury. They requested approval from his employer, Transit Mix, to pay for the necessary medical procedures. A third doctor, who reviewed the proposed treatment at the request of Transit Mix, recommended that Transit Mix not give consent to pay for the treatment.

Louisiana law requires employers to supply employees with medical care and services, including nonemergency care. However, the law says that nonemergency care is limited to a cost of $750 unless the employer and employee mutually agree to a higher price for the care. La. R.S. 23:1142. Any due payments over the $750 limit become the responsibility of the employee.

An employee is entitled to worker’s compensation benefits if he or she suffers an injury by accident during the course of his or her employment. Although worker’s compensation law has been liberally construed in favor of the injured employee, it is not an unlimited source of benefits for individuals unable to work. For example, in Royals v. Richwood, a Richwood, Louisiana resident named Donna Sue Royals attempted to appeal a judgment made by a Workers’ Compensation Judge (WCJ) who rejected her claim for permanent total disability (PTD) benefits. However, the Court of Appeal determined that the judgment was proper and denied Royals’ appeal.

During the 2002-2003 school year, Royals was hired by the Town of Richwood to work as a resource officer at Richwood High School. In September 2002, Royals twisted her knee while getting out of her patrol car during a routine perimeter check of the school. The next day, she exacerbated the injury when she “misstepped” in the police station restroom. As a result of this injury, Royals was advised by her family physician to seek treatment and in November 2002, she began seeing an orthopedic surgeon, Dr. Douglas Brown. In December 2002, Dr. Brown performed arthroscopic surgery that allowed Royals to return to work as a dispatcher in January 2003. However, she continued to experience pain from the injury and in January 2005 she received a complete knee replacement, which was also performed by Dr. Brown. In May 2005, Dr. Brown released Royals to return to modified work and within three months she was issued a medical release allowing her to return to her original job position. Despite receiving a release, Royals never returned to her previous position.

In her claim, Royals alleged that the WCJ had made a mistake by refusing to award her permanent and total disability benefits. Royals further argued that her lengthy list of medical issues all flowed from this single work-related accident. In response, the Town of Richwood argued that Royals’s medical problems were not the result of her knee injury. Further, the Town of Richwood argued that Royals’s history demonstrated that although she had the ability to return to work and effectively perform her job, she choose not to. As evidence, they offered the fact that Royals cared for her sick mother and continued to drive through 2011. While the Town of Richwood argued that Royals’s sedentary lifestyle contributed to her medical issues, Royals argued that her lifestyle was a result of the injury she received on the job.

Imagine what it’s like to be a dedicated employee. You love your job, you’re never absent from work due, and you never have any problems with your employer. Until one day, you are having an unexplained health problem. Turns out you have been exposed to a toxic substance and you believe your employer intentionally harmed you, causing significant injury.  It may be necessary to get more information to determine if an employer committed an intentional tort.

This scenario describes the case of James Owens, a welding instructor and an employee of the State of Louisiana. He worked at the Alexandria campus of the Louisiana Community and Technical College.  Mr. Owens filed a lawsuit alleging that he suffered injuries after he worked in a building with inadequate ventilation, where he was exposed to high levels of a particular matter and chromium for almost four years.

The State filed an exception of no right of action defense and the trial court heard oral arguments on the matter. During oral arguments, the trial court concluded that Mr. Owens had a right of action. However, when the trial court issued a final written judgment it ruled in favor of the State and determined that Mr. Owens’ exclusive remedy was worker compensation. The trial court also dismissed Mr. Owens lawsuit with prejudice. Mr. Owens filed an appeal alleging that the trial court made a legal error when it dismissed his intentional tort claim and failed to allow Mr. Owens to amend his petition stating a right of action.