Workers Compensation

December 20, 2016

Compromise in Louisiana Worker’s Compensation Claim Leads to Moot Issues on Appeal

rusty-ladder-1478523 Many workers in Louisiana are exposed to dangers on the job. An injury that occurs during the scope of employment often leads to more problems than just the physical turmoil following the injury. An employee might be denied payment for medical expenses, may face mental and emotional anguish, or could be rendered permanently unable to work. In order to have a successful worker’s compensation claim, an employee must be able to prove that the accident occurred within the scope of employment.

In Louisiana, case law holds that the employee was acting within the scope of employment if the employee was present at the site of the occurrence of the accident as a requirement of the employment. See La. Rev. Stat. Ann. §23:1031. In case that serves as a good example of some of the issues that can pop up in a worker’s compensation claim, Gwendolyn Grady was able to prove that her presence on a ladder at work, which resulted in a wrist injury when she fell, was within the scope of her employment.

The Office of Workers’ Compensation awarded Grady supplemental earnings benefits and medical benefits as reasonably associated with her claim. An employee is subject to the award of supplemental earnings benefits if the employee is unable to earn at least 90 percent of the

December 16, 2016

Louisiana Man Suffering from Broken Foot on the Job Seeks Recovery Using Intentional Tort Claim

by Berniard Law Firm

just-a-forklift-1439915 If your employer is knowingly putting you in harm’s way and you suffer an injury, you may have an intentional tort claim against your employer. In Louisiana, remedies against an employer for on-the-job injuries are limited to cases of intentional acts, rather than negligence. In a recent case the Louisiana First Circuit Court of Appeal discussed what is required to succeed on a tort claim against an employer.

On July 24, 2012, Adrian Cador was injured while on the job at KPAQ Industries. Mr. Cador’s foot was run over with a forklift operated by another employee. Mr. Cador and the other employee were unaware that the backup alarm on the forklift was not working. According to Mr. Cador, KPAQ knew about the malfunction.

Mr. Cador filed a lawsuit in February of 2013 alleging that the company that rented the trucks were negligent because they had knowledge, or should have had knowledge, that the alarm was not functioning. In July of 2013, Mr. Cador amended his petition naming KPAQ, his employer, as another party to the lawsuit. In this amendment Mr. Cador alleged that KPAQ knowingly and intentionally subjected him to danger with knowledge that injury was substantially certain or at least a possibility. KPAQ responded by filing a peremptory exception of no cause of action, arguing that Mr. Cador’s claims were barred by the Louisiana Workers’ Compensation Act.

December 15, 2016

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

by Berniard Law Firm

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 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 6, 2016

Court of Appeal: Medical Treatment Guidelines Can Be Applied Retroactively

by Berniard Law Firm

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In 2009, the Louisiana Legislature enacted a statute establishing a medical treatment schedule for workers’ compensation claims. This statute took into account the combined concerns of the labor force, insurance companies, and medical providers to establish harmonized guidelines for the treatment of injured employees. The need for this statute stemmed from the formerly burdensome and expensive process of obtaining medical treatment. Since the statute’s enactment, questions have arisen as to whether the medical treatment guidelines should apply retroactively to claims arising before the enactment of the statute and entry into force of the guidelines. The Louisiana Fourth Circuit Court of Appeal resolves these questions in a case arising out of a shooting at Whole Foods.

In 2001, Malord Gales was shot while on the job at Whole Foods Company, Inc. Since the shooting, Mr. Gales has been in a permanent vegetative state. Mr. Gales’ mother has since taking care of him and acting as his representative or “curatrix.” Because of his paralyzed state, Mr. Gales was required to be bowel fed with Isosource 1.5 calorie food which contains the appropriate amount of biofiber for normal bowel function. For many years, Whole Foods paid for this special food. Eventually, it refused to pay. Claiming that the food was too expensive, Whole Foods approved a different food which caused Mr. Gales significant bowel problems.

Finding his symptoms intolerable, Mr. Gales filed a disputed compensation form with the Office of Workers’ Compensation. Mr. Gales sought an order requiring Whole Foods to pay for the formerly authorized Isosource food, and to pay attorney fees for arbitrarily stopping his prescribed food. Whole Foods countered with the dilatory exception of prematurity. In its exception, Whole Foods argued that Mr. Gales claim was premature because he failed to comply with the administrative procedures for filing a claim for medical treatment. The Workers’ Compensation Judge (“WCJ”) granted Whole Foods’ exception and dismissed Mr. Gales’ claim. Mr. Gales’ 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 23, 2016

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

by Berniard Law Firm

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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 13, 2016

Does Signing a Settlement Release Extinguish All Claims in Louisiana, Including Cancer?

by Berniard Law Firm

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Accidents happen, and sometimes it takes years before the effects of those accidents show up. So what happens in Louisiana if you are exposed to a toxic chemical and go through the traditional lawsuit process including resolving all of your claims but later develop cancer? Can you come back and file another lawsuit seeking recourse for your newly acquired damages? It depends on the language of the release that was signed when you settled the first lawsuit. The following case highlights the importance of receiving thorough legal consultation before signing a settlement agreement to ensure you know exactly what rights are being extinguished.

In 1996, Leonard Bracken was exposed to mustard gas while working for the Payne & Keller Company. A tort suit was subsequently filed against the company, but in 1999 before the case reached trial, Leonard agreed to settle his tort suit for $275,531. In addition to settling his tort claim, Leonard signed a compromise agreement where he released Payne & Keller and any other potential tortfeasors from any other claims arising under the Louisiana Workers’ Compensation Act. Under the compromise, Leonard was forever barred from seeking compensation for any medical expenses or any other benefits from the company stemming from the 1996 chemical exposure.

Unfortunately, around six years after settling his lawsuit Leonard developed cancer. Believing that the cancer was related to his exposure to mustard gas Leonard filed a workers compensation claim against his employer, the Payne & Keller company seeking compensation relating to the 1996 incident. Leonard declared no wage benefits had ever been paid, his medical treatment had been discontinued, and his previous attorneys had filed and settled the workers’ compensation claim without his knowledge. Payne & Keller responded by filing exceptions raising the objection of prescription and additionally sought sanctions against Leonard. The Office of Workers Compensation (OWC) sustained Payne and Keller’s exceptions and order Leonard to pay sanctions as the OWC determined Leonard’s pleading violated Civil Louisiana Code of Civil Procedure Article 863 by being frivolous and without merit. Leonard appealed the OWC’s decision. Additionally, Leonard turned to Louisiana Code of Civil Procedure Article 2002(A)(1) in filing a motion with the OWC declaring the 1999 judgment should be nullified, as 2002(A)(1) states a final judgment shall be annulled if it is rendered against an incompetent person. The OWC did not hold a hearing on Leonard’s motion, rather it dismissed Leonard’s motion with no explanation.

November 10, 2016

Louisiana Appeals Court Defines “Employee” in Sexual Harassment Lawsuit From Iberia Parish

by Berniard Law Firm

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In the law, it is common for a case to turn on the definition of one word. A word that ordinarily may conjure a single image can explode with possibilities, nuances, and sometimes disastrous consequences during a lawsuit. For Mr. D that word was “employee.” In a recent case, the Louisiana Third Circuit Court of Appeal helped define the term “employee” as regards workers’ compensation law and employment discrimination law.

In this case, Mr. D was hired by Lofton Industries, Inc., a staffing services company, that assigned Mr. D to work with National Oilwell Varco, L.P. (“NOV”). While at NOV, Mr. D alleged that he suffered both verbal and sexual harassment from coworkers. The harassment lasted until Mr. D was fired by NOV. Mr. D filed a lawsuit for sexual harassment against his harassers and NOV, as well as a separate negligence claim against NOV for the negligent hiring and supervision of its employees. This is where the definition of “employee” becomes important and interesting.

In order to maintain his claims against NOV, Mr. D had to meet the definition of employee under the Louisiana Employment Discrimination Law (“LEDL”) but avoid being considered an employee under the Louisiana Workers’ Compensation Act (“LWCA”). Confusingly, the District Court dismissed both Mr. D’s claims, finding that he was both an employee (for LWCA purposes) and not an employee (for LEDL purposes) at the same time.

November 7, 2016

Burger King Employee Loses Out On Workers’ Compensation After Misrepresenting Injuries

by Berniard Law Firm

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When someone brings a workers’ compensation claim against an employer or former employer, they must not falsely represent any material fact, or the entire workers’ compensation claim will be forfeited. When the court finds that a plaintiff has misrepresented a material fact, they dismiss that claim in favor of the employer.

An example that illustrates this point occurred in Baton Rouge, Louisiana, where an employee at the Burger King on Coursey Boulevard said she was injured when she stepped on a bread tray a co-worker had left on a walkway. Mrs. Watson, the employee who was injured, filed a workers’ compensation claim against Strategic Restaurants Acquisition Company and Broadspire, Strategic’s third party administrator. Strategic argued that Mrs. Watson’s claim was invalid under La. R.S. 23:1208 due to false statements willfully made by Mrs. Watson while attempting to recover benefits. The Workers’ Compensation Judge dismissed Mrs. Watson’s claim, finding that she forfeited it due to her false statements. The Louisiana First Circuit Court of Appeal agreed, and affirmed the Workers’ Compensation Judge’s ruling.

According to Mrs. Watson, the injury she suffered while working at Burger King had a dramatic effect on her daily life, severely limiting the activities she was capable of performing. She claimed she could not bend at the waste, drive a car, walk without help, and had lost the regular use of her left hand, arm, and knees. In a deposition given seven months after she sustained the injury, Mrs. Watson insisted that she suffered significant pain and suffered from the fall, which continued to affect her on a day-to-day basis. During the deposition, she testified that the pain in her arm was at an “8 or 9” out of ten, and claimed she couldn’t carry anything heavier than a cup.