Pain And Suffering Claims

December 15, 2016

Court of Appeal Discusses Fraud and Forfeiture in Hammond Employee’s Workers’ Compensation Claim

money-man-3-1190250 When an employee is injured on the job, he or she may be entitled to workers’ compensation benefits. However, if an employer can show that the employee intentionally lied to receive extra reimbursement for a workers’ compensation claim, the employer will not have to pay any benefits that it would otherwise owe to that employee. A recent case out of Hammond, Louisiana, discusses the standard used in determining whether an employee intentionally committed fraud when filing for mileage reimbursements.

In September 2011, an employee of Sanderson Farms (SF) was injured during a work-related accident. SF paid the employee indemnity benefits following the accident. But in December 2011, it terminated those benefits before the employee was scheduled to return to work. After returning to work, the employee continued to work for Sanderson Farms for another month. Then, in May 2012, the employee filed a claim against Sanderson Farms seeking to recover workers’ compensation benefits for the injury he sustained while on the job. Sanderson Farms denied the employee had a present work-related disability and maintained that the employee was not entitled to further indemnity benefits or medical treatment. Sanderson Farms also raised the affirmative defense of fraud, claiming the employee forfeited his right to all benefits when he submitted mileage reimbursement in excess of the actual distance he traveled in visiting various healthcare providers.

The Office of Worker’s Compensation held a three-day trial focusing on SFs’ fraud defense. In support of the fraud allegation, Sanderson Farms sought to prove that the employee lied about the amount of miles he traveled to and from the 15 doctors’ appointments he attended from September 2011 to November 2011. It is unlawful for an employee to willfully make a false statement or representation for the purpose of obtaining any worker’s compensation benefits. An employee violating this law forfeits any right to workers’ compensation benefits. The forfeiture statute must be strictly construed because forfeiture of benefits is a harsh remedy. See Our Lady of the Lake Regional Medical Center v. Mire, 142 So.3d 52 (La. Ct. App. 2014). As such, if an employer fails to prove even one element of the forfeiture statute, it will not be able to avoid liability in a workers’ compensation claim. Here, in order for SF to prove its fraud allegation it had to demonstrate that the employee willfully lied about where he was living and the distance he traveled to and from his medical appointments in an attempt to receive more money for mileage reimbursement than he was due.

December 14, 2016

Baton Rouge Based Furniture Rental Company Let the Bed Bugs Bite

by Berniard Law Firm

bed bugs There are rules involved in the evidence that a court can allow into a case, even when the case revolves around something as small as a bed bug. If a party believes that the rules have been violated, they can appeal the case and have a higher court review the evidence to make sure nothing inappropriate had an effect on the case.

In this case, the plaintiff, temporarily residing in Baton Rouge for work, decided to rent a twin mattress, box spring, and bed frame from a furniture rental company. The apartment complex he was staying was brand new, and he was the first occupant.

A day after renting the furniture, the plaintiff developed a skin condition that quickly spread “from his earlobes to his toes.” Thinking he had a rash, he sought treatment at Lake After Hours, where they prescribed an over the counter cream for his “rash, papules and vesicles” which gave him lesions.

December 12, 2016

Bogalusa Fire Department Made to Pay Workers Compensation for Fireman’s Heart Condition

by Berniard Law Firm

heart-attack-1306407 Don’t get burned by worker’s compensation failing to pay for your injury. Make sure that you understand what your rights are whenever you file a worker’s compensation claim. Clinton Miley, a firefighter with the Bogalusa Fire Department, suffered from paroxysmal supraventricular tachycardia (PSVT) after 19 years on the job. He looked to a Louisiana law known as the Firefighters Heart and Lung Statute to prove that his injuries were caused by his job as a firefighter.

The Firefighters Heart and Lung Statute creates the assumption that any heart or lung problem developed by a firefighter after 5 years of service was caused by being employed as a firefighter. La. R.S. 33:2581. Miley had worked at the Bogalusa Fire Department in Louisiana from July of 1993 until January of 2012. On May 12, 2010 Miley sought treatment for chest pain and was diagnosed by his doctor with PVST. PVST is traditionally viewed as a congenital hereditary condition, leading the Fire Department claim that it should not qualify under the statute.

The trial court found that Miley’s disease qualified under the statute, and that if Miley could prove the condition prevented him from working he should be entitled to compensation. This finding lead to an appeal made by the fire department which claimed that because PVST had not been traditionally classified as a disease falling under the Firefighter Heart and Lung Statute. They stated that the amount of time it took for Miley’s pain to occur to coupled with the fact that he had a family history of heart disease kept him from qualifying for benefits under worker’s compensation.

December 11, 2016

Make No Mistake, Medical Testimony Is Required For Juries To Award Damages For Future Medical Expenses

by Berniard Law Firm

car-accident-4-1546893 Car accidents are scary. When individuals make the choice to take on a personal injury lawsuit there is a lot of time that goes into those cases. After expending all that time and emotional energy, people want to feel like the verdict they received was fair, or at the very least compensates them for the injuries they incurred. The jury’s job is to listen to all the facts, be instructed on the law and make a decision. Many people think that once a jury renders a decision, that it is final. However, in some cases an individual can appeal to a higher court if they felt as though the jury award of damages was abusively low. That is exactly what a woman in the Parish of Lafayette, Louisiana did and it worked, partly.

Nicole Barras was involved in a car accident where she sustained multiple bodily injuries. She sued the driver of the other automobile and pursuant to the jury decree, received a payment from his insurance in the total amount of $55,491.96.

Children and spouses of persons injured by the negligence of another may raise loss of consortium claims. These claims compensate the family members of the injured person for spousal or parental affection and guidance that was lost because of the injury. See Ferrell v. Fireman’s Fund Ins. Co., 696 So. 2d 569 (La. 1997). Barras’ husband and five minor children received $6000 total in damages for their loss of consortium claims because Ms. Berrar could not guide her children or help her husband with family matters.

December 10, 2016

Fax Filing of Lawsuits in Louisiana- A Precautionary Tale

by Berniard Law Firm

office-4-1484175 Following proper procedure is critical when it comes to preserving your legal rights. While some rules might seem a bit harsh the best lawyers know the rules and will make sure you do not lose your case simply because you did not dot your I’s and cross your T’s. The following case out of Rapides Parish demonstrates what can happen when a fax filed lawsuit is not followed up with the mailed petition in the proper time.

The Plaintiff in this case, Brenda Quire, was a patient suing her former physician for alleged battery and was asking for alleged damages she incurred under a physician’s medical care. The original lawsuit and filing fee were not received by the clerk of court within the required period of time. In short, she missed the deadline and consequently her case was dismissed.

The Defendant, the physician, filed an exception of prescription requesting the court to dismiss the case, which the court granted. An exception of prescription is a motion filed asking the court to dismiss a lawsuit without probing into the underlying claims, and to demonstrate that the plaintiff has no right to bring such action because the time period elapsed. This is a legalese way of saying the court dismissed Ms. Quire’s claims because she filed her lawsuit past the deadline to file.

December 4, 2016

Lafourche Parish Sheriff’s Office Found Negligent in Causing a Woman’s Broken Arm in “Self Defense” Class

by Berniard Law Firm

police-5-1572837-1024x768 It’s common sense that self defense class instructors should teach the students how to defend themselves and not inflict pain or broken bones while instructing. However some instructors can go overboard while trying to “teach” these skills. The following case out of Lafourche Parish highlights what can go wrong when simulations in a self defense course get a bit too real for one participant causing her a broken arm and other damages.

In 2010, plaintiff participated in a 3-day Rape Aggression Defense (RAD) self-defense course being taught by the Lafourche Parish Sheriff’s Office. During the course, plaintiff and other participants received instructions for two days and on the third day, participants engaged in a series of exercises simulating attacks upon them by “aggressors”, at this time they were instructed to deploy the defensive techniques they had learned. During one of these simulated attacks, in which a Lafourche Parish Sheriff’s Deputy played an “assailant”, plaintiff’s arm was broken. Plaintiff had to undergo surgery to repair the comminuted fracture, requiring two plates and 21 screws to be inserted into plaintiff’s arm.

At the initial bench trial, the recorded RAD simulations were played on video, showing the RAD instructor was close to plaintiff during the exercise and was constantly giving instructions to the plaintiff on how to properly perform defensive techniques. In the video, the Sheriff Deputy playing the “aggressor” pushes and hugs the plaintiff while the instructor tells the plaintiff how to defend herself. The trial court concluded after watching the video, it did not find the Sheriff’s Office or the Sheriff’s Deputy negligent, as the only way they could have prevented the plaintiff’s injury would have been to not engage physically with the participants, which would have defeated the purpose of the exercising teaching them to defend themselves against aggressive criminals. The trial court subsequently dismissed the defendants with prejudice, and plaintiff appealed.

December 2, 2016

Metairie Workers Compensation and Car Accident Lawsuit Shows How Courts Separate Injuries

by Berniard Law Firm

Picture-1854-e1467899109216-765x1024 Sometimes you have a run of bad luck. If your injured on the job then not long after you get into a car wreck it can be hard to pinpoint which incident caused your injuries. If you are unfortunate enough to be involved in this scenario make sure you have the best workers compensation lawyer you can get to help the court understand your work related injuries. The following case out of Metairie, Louisiana shows how one recent appeals court dealt with just such a factual scenario.

Leslie Nichols was a cosmetologist at the Elizabeth Arden counter at Dillard’s Metairie, Louisiana store. During her lunch break she slipped on the floor and fell. Rather than return to work after her fall she went home. The next day she went to an urgent care center and eventually was treated by her workers’ compensation doctor. She returned to work without restrictions, but a little over a week later she rode in the Orpheus Parade and attended the Orpheus Ball. She continued to treat for her injuries and on her way to a follow-up visit she was involved in a car accident. The accident further aggravated her injuries and rendered her disabled. Ms. Nichols sought compensation from for her injuries, including those aggravated by the car accident. Dillard’s argued that the car accident was an unforeseeable event causing aggravation of her pre-existing work place injuries, therefore, Dillards should not be responsible for those injuries as well.

At the original trial, the workers’ compensation court found there was no causal connection between her work injury and her disability, as it was a result of her car accident. Ms. Nichols filed for a new trial, and a second workers’ compensation court judge awarded Ms. Nichols damages by ruling the car accident and her original injury were causally connection. Dillard’s appealed the new judgment to the Louisiana Fifth Circuit Court of Appeal, seeking for reinstatement of the original judgment.

November 25, 2016

Why are Experts Needed in Medical Malpractice Lawsuits in Louisiana?

by Berniard Law Firm

skeleton
The possibility of a error during surgery is frightening for any medical patient. But unexpected occurrences during surgery don’t always rise to the level of medical malpractice. The best medical malpractice attorneys know that to pursue claims of negligence expert testimony is mandated. The following case involving a gynecologist based in Alexandria, Louisiana, demonstrates why experts are required in most cases involving claims of medical malpractice.

The Alexandria doctor was being sued by a former patient, Kacey Ryder, for damages she claimed to have suffered during a surgical procedure. She had become his patient due to chronic pelvic pain. The doctor recommended a “diagnostic laparoscopy,” a procedure that determines whether someone has endometriosis, a disease he suspected was the source of her pelvic pain.

Ryder filled out the informed consent form and underwent the surgery. During the surgery, one or more of her blood vessels was punctured. The Doctor sutured the blood vessels and switched to another surgical method known as a “laparotomy,” which is similar but requires larger incisions. After being sent to the recovery room, her condition worsened and, upon another laparotomy, the doctor discovered a large amount of blood in her peritoneal cavity.

November 23, 2016

How Can I Prove My Injury Was a Result of Employment to Qualify for Workers Compensation?

by Berniard Law Firm

nurse

When you have developed a medical condition or are injured during the course of your employment, you could be entitled to relief under Louisiana’s worker’s compensation laws. However, you must be able to show that the injury was caused while you were performing your job. Louisiana law requires the injured party to show, more likely than not, that the injury was caused as a result of the employment. If you’re unable to satisfy this burden of proof, you will fail to qualify for benefits. So how do you go about proving that your injury was work related and therefore qualifies you for workers compensation benefits? The following case out of Jefferson Parish Louisiana helps answer that question.

Take, for example, Virginia Mulder: Ms. Mulder was a registered nurse employed at East Jefferson Hospital’s rehabilitation wing in Metairie, Louisiana. Her daily duties included lifting patients to help them complete various tasks. In December of 2013, Ms. Mulder filed a claim for worker’s compensation claiming that she had developed chronic pain in her back and biceps as a result of repetitive lifting. She alleged that the injury began to develop on April 30, 2013. She sought to recover worker’s compensation benefits in the form of medical expenses, indemnity, penalties, and other costs.

At trial both parties stipulated that Ms. Mulder was an employee of the hospital at the time the injuries occurred. Ms. Mulder presented several witnesses who aided the Worker’s Compensation Judge (WCJ) to determine that Ms. Mulder’s injuries were caused by her work as a nurse. In particular, the testimony of Ms. Mulder’s doctor, Dr. John Nitche, carried great weight in the eyes of the WCJ. While Dr. Nitche admitted he had never seen any other nurse with the same or similar condition, he asserted that there was a causal connection between her work and the condition affecting her back.

November 22, 2016

Black Friday Shopper Who Slipped on Fallen Sign Has Case Dismissed on Appeal

by Berniard Law Firm

crowd shopping

Sometimes going shopping on Black Friday can be dangerous, as Sylvia Scott learned when she went shopping at the Dillard’s Department Store at Esplanade Mall in Kenner, Louisiana and slipped on a plastic sign that had fallen to the floor. A business might be liable for such a misfortune if they are aware of a hazard and have not taken the proper steps to remedy the hazard before a customer gets injured. However, sometimes an accident is just an unfortunate accident, and that is why it is important for all parties, whether they are an injured customer or a business worried about facing a lawsuit, to seek out excellent lawyers to represent their interests when someone gets hurt. The following case out of Jefferson Parish discusses the burdens Louisiana Courts place upon plaintiffs to show that their accident was no accident at all.

On the morning of the incident, Ms. Scott went to Dillard’s to take advantage of the store’s Black Friday deals. She entered the store at 8:30 a.m., just a half hour after the store had opened, and slipped and fell on a “cling sign” that had fallen off the door. Ms. Scott did not accept medical attention on the scene, but eventually needed pain management, physical therapy, and surgery for the injuries she suffered due to the fall. It was at that point that Ms. Scott sued Dillard’s for her injuries, alleging that Dillard’s did not exercise reasonable care in inspecting the premises and was therefore liable for her injuries.

In Louisiana, the plaintiff bears the initial burden of proving each element of a slip-and-fall claim. See La. R.S. 9:2800.6(B). A merchant owes a duty of care to keep the premises in a reasonably safe condition, including the aisles, passageways, and floors. In order for the merchant to be liable for an injury caused by a slip-and-fall, several elements must be established. First, the condition must have presented an unreasonable risk of harm and the risk must have been reasonably foreseeable. Second, the merchant must have created the condition or had actual or constructive notice of it, prior to the accident occurring. Finally, the merchant must have failed to take reasonable steps to remedy the condition. Essentially, the plaintiff must show that the condition was dangerous and it was foreseeable that it could cause an injury. The merchant must have either caused the condition, known of its existence, or should have been aware of its existence if properly monitoring the store. Finally, the merchant must have neglected to take action to fix the condition or cordon off the area where it existed so that customers are reasonably protected from injury. The plaintiff must establish all of these elements, and failing to establish a single element will be fatal to the claim.