Pain And Suffering Claims

March 10, 2017

Workers Compensation, Injuries Sustained in Accidents While Traveling To and From Work May Be Recoverable Under Certain Exceptions

planning-for-construction-1234527-731x1024 Have you ever suffered personal injury from an accident while traveling to or from work? Generally, pursuant to the Louisiana Workers’ Compensation Act employers are not responsible for injuries sustained by employees while traveling to or from work because these injuries are not considered to have occurred within the course of employment. This is known as the “going-and-coming” rule, under which the employment relationship is considered suspended from the time the employee leaves his or her workplace. However, there are certain exceptions to this rule that allow a claimant to recover even though the injury was sustained while traveling to or from work. The following case illustrates one such exception: if the accident occurred on the employer’s premises, the employee may be covered under workers’ compensation laws.

Arline Theriot was employed by Full Service Systems Corporation as a porter at a casino in Lake Charles, Louisiana. On December 25, 2012, Arline was on her way to work. Shortly before her shift was about to begin she was searching for a parking space in one of the casino parking lots when she was struck by a vehicle driven by another casino employee. Arline sustained an injury to her neck as a result of the accident and subsequently filed a Disputed Claim for Compensation with the Office of Workers’ Compensation.

Arline alleged that her employer had not authorized a neck surgery that was recommended by Dr. Gregory Rubino and sought penalties and attorney fees for her employer’s rejection of the neck surgery. The Workers’ Compensation Judge (WCJ) decided in favor of Arline, finding that her injury occurred in the course of her employment at the time of the accident, that the neck surgery recommended by Dr. Gregory Rubino was reasonable and necessary, and that the need for the neck surgery was causally related to the workplace accident. On appeal, the sole legal issue was whether Arline’s accident arose out of and occurred in the course of her employment. Full Service Systems disputed the WCJ’s findings and argued that her claims were not recoverable because she was on her way to work.

March 8, 2017

Truck Driver Injured in Ouachita Parish Allowed Another Chance to Prove Liability of Electrical Contractors

by Berniard Law Firm

electrical-towers-1230495-1024x683 When an employee is injured on the job they often have extensive medical bills and less money to pay those bills because they may not be able to work. While workman’s compensation, insurance, and disability benefits are available to cover those costs, there is another form of compensation available to those who are injured as a result of negligence or other bad acts. The injured party can file a lawsuit against those responsible. Of course, there are often questions surrounding who is in fact legally responsible, e.g., for maintenance of a job site, and it takes an experienced lawyer to navigate such complicated legal questions.

Glenn Chesney pursued the latter route by filing a lawsuit after he was injured by coming into contact with an uninsulated, sagging power line at the Magnolia landfill in Ouachita Parish, Louisiana. Glenn was driving his truck through the landfill facility to weigh and unload the removable trash container on his flatbed truck. A power outage created a backlog of trucks waiting for the scale to come back online. Glenn, in the meantime, decided to take the tarp off of his load so that he could unload faster when he got to the front of the line. The truck Glenn was driving had mechanical arms that could raise to a maximum height of approximately 17 feet off the ground. Ordinarily, Glenn used the mechanical arms of the truck to take the tarp off of the trash container so it could be unloaded. However, this time when those arms raised they came into contact with the sagging and uninsulated power line. By this time, the power had been restored to the landfill facility and Glenn was injured as a result. The main issue that Glenn had to deal with on his latest appeal was whether the electrical contractor, Copeland Electric Company, could be held liable for failing to maintain the electrical line.

Copeland originally installed the electrical line in 1994 and the accident that injured Glenn Chesney occurred 16 years later on August 13th 2010. Because of the length of time between the installation and the incident, the lawyers for Copeland attempted to have the action dismissed under La. R.S. 9:2772. This Louisiana statute provides that deficiencies in immovables from construction, surveying, design, or supervision have a 10-year peremptive period for actions. That means that even if Copeland was negligent in constructing the electrical line, the Glenn had no cause of action because the time period for bringing such action lapsed. See Rando v. Anco Insulations, Inc., 16 So.3d 1065 (La. 2009). These time limits on when you can file a lawsuit are an attempt by the legislators to strike a balance between vindicating victims of past injustices and flooding the courts with untimely lawsuits based on stale evidence, which makes a court’s job of assessing the facts of a case much more difficult.

February 27, 2017

Company Trying to Avoid Worker’s Compensation Benefits For Family Of Deceased Employee Fails On Appeal

by Berniard Law Firm

One of the biggest fears of any parent is the sudden and unexpected death of your spouse, leaving only you to raise and provide for your children. The thought alone can be crippling. When tragedy strikes, one of the only comforts a surviving spouse can find is believing that they will receive financial compensation to relieve the monetary burden left behind by the loss of a spouse who provided a steady source of income. At the center of every wrongful death claim is the issue of getting the surviving family member relief to overcome the hardship of carrying on without their spouse or parent who helped support them. For individuals killed on the job, the Louisiana Workers’ Compensation Act (the “Act”) provides an avenue for compensation for surviving family members. Under the Act, an employee injured in an accident during the course and scope of the employment is generally limited to the recovery of workers’ compensation benefits as his exclusive remedy against his employer and may not sue his employer in tort. See La. R.S. 23:1032.

Likewise, when an employee is killed during the course and scope of their employment, surviving family members expect compensation from their loved one’s employer. Unfortunately, many companies elect to deny responsibility or claim to be free from fault rather than help the family. Moreover, oftentimes workers’ compensation benefits do not adequately compensate for the loss of a loved one. While these workers’ compensation benefits may be subpar, they are at least guaranteed to the surviving family members.

Other companies that may be responsible for a workplace injury may attempt to label itself as an employer of the injured person in order to protect itself from a tort lawsuit by using the Workers’ Compensation Act as a shield. Whenever this happens, it is imperative that surviving family members have adequate counsel to identify the scheme these companies are attempting to carry out. A recent case out of New Orleans, Louisiana highlights the struggle that grieving family members face when attempting to receive compensation from the companies responsible for a workplace fatality.

February 26, 2017

How Long Do You Have To File Your Lawsuit Once You Realize You Have A Lawsuit To File?

by Berniard Law Firm

When a person is injured, a countdown begins. If you think you have a lawsuit, you need to file that lawsuit within a certain amount of time or else you will lose the right to that claim. Similar to what some states would call a statute of limitations, Louisiana uses something called “liberative prescription” or just “prescription.” Under this legal doctrine, after a certain amount of time has passed, a plaintiff can no longer bring their claim. The claim is treated as if it never came into being. In some cases, this period is one year. See La. C.C. art. 3492. A defendant can avoid a claim that has passed this period under the defense of peremptory exception, which dismisses a claim for being untimely filed. For some plaintiffs, there is relief in the form of the legal doctrine contra non valentum. Under this idea, the time period to bring a claim does not begin on the day the injury occurred but rather when the person realizes what has happened with enough certainty to file a lawsuit. See Bailey v. Khoury, 891 So.2d 1268 (La. 2005). Prescription exists to keep parties from being surprised by claims from events that have happened years in the past. Contra non valentum likely exists to help people who have been prevented in some way from discovering exactly who or what has caused their injury.

The Louisiana Fifth Circuit Court of Appeal recently applied these legal theories on a work-related illness. Natividad Tenorio worked from 1981 to 1988 in his employer’s (Alpha Technical Service) yard removing radioactive substances (oilfield-generated radiation or OGR) from oil and gas pipes. In November 2009, Mr. Tenorio was diagnosed with throat cancer. In 2013, a former co-worker informed Mr. Tenorio about the dangerous airborne radiation to which the workers had been exposed during that period of years. One year later, Mr. Tenorio brought a lawsuit against numerous gas and oil companies that had used the radiation-generating pipes. The Defendants asserted their affirmative defense of peremptory exception under the notion that the time period for prescription had passed. The Trial Court sided with the Defendants and dismissed the lawsuit; Mr. Tenorio appealed.

On appeal, Mr. Tenorio argued that the Trial Court should not have deemed his lawsuit “prescribed” after only one year. He claimed that the grace period should have been extended under the theory of contra non valentum since he did not discover that his work put him at risk of cancer until four years after his diagnosis. Defendants argued that Mr. Tenorio should have known the cause within the year following his diagnosis and that he did not show any evidence of anything that may have prevented him from discovering that the radiation from his former job led to his cancer. The Court of Appeal noted that under these circumstances, the burden of proving that his claim was not prescribed rested with Mr. Tenorio. As such, he offered evidence that showed he only found out about the radiation in 2013. However, the Court of Appeal found for the Defendants, reasoning that when a person fails to realize that he or she has a potential claim through only his or her own neglect or ignorance, that person should not be granted a grace period. Moreover, a year-long prescription period in a personal injury case such as this one is deemed to begin when a plaintiff knows or should know the relevant facts. The Court of Appeal believed that Mr. Tenorio should have researched possible causes of his cancer immediately after the diagnosis in order to be able to begin his lawsuit within that first year. But because he did not, the Court of Appeal found that Mr. Tenorio was unreasonably late in filing his lawsuit and the Trial Court’s dismissal of his claim was upheld.

February 19, 2017

Alexandria, LA—Third Circuit Affirms Disability Payments to Injured Employee with Preexisting Hip Replacement

by Berniard Law Firm

roadman-1395447-695x1024 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.

February 18, 2017

Slip and Fall Liability and Comparative Fault in Louisiana Grocery Store Case

by Berniard Law Firm

supermarket-1575072-1024x692 If you slip and fall on a pile of food left on the floor of a supermarket and evidence shows that an employee observed the hazard a minute earlier but failed to warn you, it may seem obvious that the store was at fault and owes you full compensation for your injuries. However, as Sheneatha Stevens of Lake Charles, Louisiana learned, the situation may not be so clear cut. The amount of compensation you are awarded will depend on whether you had knowledge of the hazard at the time you were injured, personal characteristics or distractions in the environment affecting your ability to avoid the hazard, any risks you took and why you took them, and whether the trial court finds the evidence you present on these factors to be convincing. An aspect of the situation that may not seem important to you can wind up having a major effect on your credibility and, ultimately, on the amount of damages awarded to you, as Ms. Stevens learned. Her case shows why it is important to have an experienced attorney representing you when you have been injured in a retail store and both sides have strong evidence supporting their positions.

On January 5, 2012, Sheneatha Stevens slipped and fell in a pile of rice that had spilled onto the floor near a drink cooler she was walking toward in the Market Basket supermarket in Lake Charles, Louisiana. She was taken by ambulance to Lake Charles Memorial Hospital, released and underwent chiropractic treatment between February 2012 and April 2012. Her medical exam showed no tenderness, just soreness and bruising that the trial court believed was from an earlier injury.

Ms. Stevens filed suit against Market Basket in December 2012.The trial court evidence included a surveillance video that showed her entering the store while talking on her cell phone, walking straight toward the drink cooler, slipping but not falling on the spilled rice near the cooler, pulling a drink out of the cooler and, about 22 seconds later, slipping and falling in the rice as she retraced her steps down the same aisle and headed toward the store entrance. Evidence also included Ms. Stevens’ testimony that she had filed more than 20 personal injury claims since 2003, as well as a finding that a Market Basket employee had seen the spilled rice less than a minute before Ms. Stevens entered the store but failed to warn her about it.

February 11, 2017

Treating Physician’s Opinions Are Key in Court’s Decision to Grant Workers’ Compensation Benefits

by Berniard Law Firm

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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.

February 10, 2017

Workers’ Compensation Judge’s Fact-Based Decision Given Deference on Appeal

by Berniard Law Firm

baker-1551731-778x1024 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.

February 9, 2017

Witness’s Testimony Credibility Dependant on Lower Court’s Decision

by Berniard Law Firm

tie-3-1239530-768x1024 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.

February 6, 2017

Louisiana Workers’ Compensation Case Shows Importance of Understanding Rights and Benefits

by Berniard Law Firm

backache-1620045-1024x709 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.