Articles Posted in Workers Compensation

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the-workers-1500355-1024x683If your hurt on the job your recourse will typically be through the workers compensation system.  Once you are in that system you must play by the rules and follow all orders of the court.  If you don’t your employer does have recourse to seek to limit your benefits.  Such a situation is demonstrated below wherein Mr. Sims refusal to attend adult education lead to a lesson learned in reduction of workers compensation benefits 101.

On October 17th, 2006, Preston Sims, an employee at Willis-Knighton Health System (WK) in Shreveport, Louisiana, sustained a back injury while at work resulting in a herniated disk at L5-S1. His doctor recommended lumbar surgery but his employer refused to pay the cost of the surgery. In September 2011, the Workers’ Compensation Judge (WCJ) ordered WK to approve and pay for the surgery, as well as continue to pay benefits to Mr. Sims. The Judge also signed an order of rehabilitation naming Lenora Maatouk as Mr. Sims’ vocational rehabilitation specialist. Sims was further ordered to participate in an adult education program to obtain his GED, with approval from his treating physician. In March 2012, Mr. Sims underwent a L4-5 and L5-S1 360-degree lumbar fusion, with placement of pedicle screws, followed by a right L5-S1 micro lumbar decompression.

As required by rehabilitation order, Mr. Sims took the adult educational program placement test on October 10, 2011 and on February 4th, 2013 and took the GED exam on January 27th, 2012 and November 8th, 2013 – to no avail. Mr. Sims’ rehabilitation specialist, Ms. Maatouk, informed him that he would need to take the placement exam again before being able to take the GED exam for a third time and additionally recommended that he take remedial classes for approximately six to nine months prior to the GED exam to better prepare himself. Mr. Sims did not enroll in any remedial courses.

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new-york-taxis-1447254-1024x768Usually, an employee’s sole remedy against his employer for an on-the-job injury is worker’s compensation. Louisiana law creates a statutory presumption of employment status, meaning that any worker injured while providing work for a trade, business, or occupation is assumed to be a person who is covered by the Worker’s Compensation Act.

This presumption is rebuttable however, and the alleged employer bears the burden of proving that the worker was not his employee as defined by the Worker’s Compensation Act. An alleged employer can do this by either showing that the work involved was not pursuant to any trade, business, or occupation or establishing that although the individual was carrying out a service, he was really an independent contractor at that time.  See La. R.S. 23:1021

On December 16, 2013, Joseph Wilfred was robbed and murdered while working a shift as a cab driver.  His daughter, Ms. Emilia Wilfred of Jefferson Parish, filed a lawsuit against A Service Cab Co. Inc. (hereinafter “A Service”) in order to collect on her late father’s worker’s compensation death benefits. The trial court found that Mr. Wilfred was not an employee as defined by the Worker’s Compensation Act and denied Ms. Wilfred’s claim for death benefits, dismissing the case with prejudice.

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Deadline
In Louisiana if you are hurt at work there are workers’ compensation laws in place to make sure the injured employee gets the type of relief he or she needs and deserves. Within the Workers Compensation Statutes there are deadlines and time frames to which both sides must adhere and they are in place to streamline the process of efficiently getting relief for the injured employee. With a good workers compensation attorney those time frames can actually help the injured employee. But what about the decisions of a medical director to deny treatment, are there deadlines to appeal those decisions?  The following case out of Monroe Louisiana discusses the time limits that apply in those circumstances.

On June 30, 2012 Calvin Arrant was on the job driving around the Parish of Ouachita, Louisiana when an 18-wheeler ran a red light and smashed into his car. Mr. Arrant was a surveyor for Wayne Acree PLS, Inc. His job included carrying heavy equipment oftentimes over rough terrain. He continued to work after the accident, but despite his attempts the pain became too unbearable to perform his job any longer. Two months after the accident, Mr. Arrant had lower back pain that radiated into his shoulder, legs, and feet. Furthermore, he needed the assistance of a cane to help him walk due to the numbness in his left leg.

Mr. Arrant eventually sued his employer and their workers compensation insurance provider alleging that they had refused to allow Mr. Arrant to see the physician of his choice and refused to provide tests and procedures recommended by his treating physician. The parties agreed that Mr. Arrant was hurt on the job, i.e., “he was involved in an accident within the course and scope of his employment.” However, at issue was whether Mr. Arrant’s appeal to the medical director’s decision to deny Mr. Arrant’s MRI requests was timely. A worker’s compensation judge found that it was not and the court of appeal agreed.

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Under the respondeat superior legal theory, an employer can be held liable for his employees’ acts that occur within his scope of employment. This means that a truck company, for example, may be held responsible for an accident caused by one its drivers who was speeding or intoxicated while driving his route. This doctrine can be complicated when questions arise as to whether or not the employee was within the scope of his employment, or whether the person who caused the injurious accident was in fact an employee.

To determine scope of employment, one must look to what the employer pays the employee to do and what, exactly, the employee was doing when the accident occured. If a truck driver deviated from his route to go to a bar, for example, then it will likely be determined the driver was engaged in frolic for his own benefit and therefore was not within the scope of his employment. This means if an accident occurs while that truck driver is on his way to the bar, then the truck company will not be held liable. If, on the other hand, the truck driver had to deviate from his standard route because of a flooded road, then the detour is still considered to be to the employer’s benefit and within his scope of employment. An accident that occurs while on detour will still be imputed to the truck company.

A recently decided case by Court of Appeal for the First Circuit helps illustrate issues of determining the employee/employer relationship. The importance of this aspect is if the party responsible for the accident is found to be an independent contractor rather than an employee, liability cannot be placed on the employer. So, in the case heard on appeal by the First Circuit, a woman who was injured by the negligent driving of a delivery van driver sought to join the subcontracting broker and the delivery service that hired the individuals responsible for the accident. To determine whether an independent contractor relationship existed, the court looked to case law and the facts before it.

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Work-related injuries, especially in construction, are not uncommon. However, the outcomes in workers’ compensation cases vary because the contractual relationship between the parties is often not clear. Under Louisiana law, workers’ compensation is provided to an employee if they’re injured by an accident “arising out of” and “in the course of” his employment with a statutory employer. However, the issue centers on whether the defendant is a statutory employer thereby limiting the plaintiff to workers’ compensation as their sole remedy. If a valid, written contract recognizes the existence of a statutory employer relationship, it creates a rebuttable presumption; this requires careful interpretation of the terms of the contract.

On August 12, 2008, Louis Fox (hereinafter “plaintiff”), employee of Foster Wheeler North America Corp. (hereinafter “Foster”), was assisting with the installation of boiler units at the Rodemacher Power Station near Lena. While working inside a cyclone tower, the plaintiff alleged that he sustained an injury when an object fell from above striking his head and neck. The plaintiff sought damages beyond workers’ compensation against several defendants including CLECO Power (hereinafter “CLECO”), owner of the power station, and general contractor Shaw Constructors, Inc. (hereinafter “Shaw”).

The installation of the boiler units was the result of a written contract between CLECO Power, owner of the station, and Shaw Constructors, Inc. As general contractor, Shaw selected Stone and Webster, Inc. (hereinafter “Stone”) to take charge of engineering and procurement services. Stone then entered into a purchase order agreement with Foster for the sale and installation of the boiler units.

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It is vital to know proper court procedures at the outset of litigation or else an otherwise valid claim might be thrown out of court without ever being heard. One prime example is the need to send initial court documents to a defendant within a set deadline (sending such documents, such as a citation or summons, is known as service of process). Case in point, the Lafayette Parish Court of Appeal, in Boka v. Oller, recently upheld the dismissal of a claim without even considering the merits because service of process was delivered too late. Therefore, it is important to know the rules before bringing a lawsuit or a good claim might be lost due to a mere technicality, such as delivering papers too late. For a non-lawyer, an attorney can be instrumental in making sure proper procedures are followed so that the party has a chance to present their case in court.

In Lafayette Parish, Louisiana Code of Civil Procedure Article 1201 requires that service of the citation must be requested within a deadline of ninety days from commencement of the action. Article 1201 also notes that service of process on defendants is “essential” and “without them all proceedings are absolutely null.” The deadline for service is to ensure that defendants are aware of an action and have enough to prepare. Therefore, as a delay in service is deemed unfair to the defendant, a court may dismiss a claim if service of process is sent too late.

There are some limited exceptions to the rule, but, due to the risks involved in these exceptions, generally a party should attempt to serve process on time. For example, one exception permits late service if there is good cause for the delay. However, as the court is unlikely to accept run-of-the-mill excuses for delays, proving a good cause for failure to serve process on time can be difficult. As noted below, the court in Lafayette Parish found that there was no good cause for late service as the plaintiff knew the defendant’s address.

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The Jones Act is a law that provides seamen the chance to bring personal injury suits against the owners and operators of vessels they are working on in cases where the owner or operator was negligent or in some other way at fault for the injury. One of the types of damage allowable under the Jones Act is that of maintenance and cure. In maritime law, maintenance is the employee’s daily living expenses and cure is the employee’s medical bills. If an employer has to pay maintenance and cure, they will only have to pay such costs until the seaman is either fit for duty, or at a point where added medical treatment will not improve his condition. This case goes into further detail about what is necessary for a plaintiff to receive an award for maintenance and cure in a Jones Act case, and the relationship between maintenance and cure and worker’s compensation in Louisiana.

In this case, the plaintiff was performing sandblasting and plating work on an offshore rig. While performing this work, the plaintiff slept and ate aboard the M/V Howard McCall, stored equipment on the vessel, and used the vessel as a work platform on several occasions. After the initial work on the rig was done, the plaintiff was brought back to the vessel to perform sandblasting work on the vessel itself. During this period of work, the plaintiff sustained injuries while exiting the ship’s wheelhouse. The plaintiff soon began receiving payments from the Louisiana Worker’s Compensation Commission who was the employer’s insurer.

Subsequently the plaintiff filed suit against both of the owners and the operator of the vessel under the Jones Act. The plaintiff made three basic claims: 1) the owners and operator of the vessel were negligent in maintaining the safety of the vessel, 2) the vessel was unseaworthy, and 3) the owners and operators owed him costs for maintenance and cure. During the jury trial, the negligence and unseaworthiness claims were dismissed, and the remaining claim of maintenance and cure was the only claim left. The jury found in the plaintiff’s favor and awarded him awards of maintenance and cure. The defendants appealed the jury’s award.

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The appellate court has affirmed a summary judgment dismissing a widow’s case against Stebbins Engineering and Manufacturing Company. She filed suit after her husband died while he was working at International Paper Company in Mansfield, Louisiana.

An employee died when, while attempting to repair a valve on the platform surrounding a white water tank/tile chest, he fell into the tank. Pulp debris around the opening cover may have been dislodged due to overflow before his fall. Thus, the widow brought suit against the manager of the Mansfield paper mill, International Paper, and Stebbins, which designs and constructs the tanks. Over 20 years ago, it manufactured the tank that the deceased fell into, and Stebbins also inspects tile chests at some of its locations, though not at the Mansfield mill.

Whether the widow had a case or not turned on the legal duties of Stebbins. The widow argued that inspections at other plants provided notice to Stebbins that some of the tile chests were over-pressurized and overflowing, which caused the dislodging of the access opening covers, thereby endangering International Paper employees working around the tanks. She argued this created an obligation for Stebbins to inform International Paper employees about the safety issue.

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To a certain extent, employers are legally required to guard their employees against the risk of on-the-job injuries. But for an injured employee to prevail in a lawsuit against the employer, the employee must be able to prove that the employer owed him or her a duty to prevent the particular accident that occurred. The Louisiana Third Circuit Court of Appeal recently affirmed this rule in the recent case of Chaisson v. Drake.

Mary Elizabeth Chaisson was working as a private caregiver for Dr. Winbourne Macgruder Drake. She had been helping him get in and out of his wheelchair for three years when one day something went wrong.

Chaisson was attempting to transfer Drake from a lift chair to his wheelchair when he suddenly began to fall forward. When Chaisson grabbed him to prevent the fall, she pulled muscles in her neck and back.

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Under Louisiana Law, there are four types of workers’ compensation: Permanent partial disability benefits, permanent total disability benefits, temporary total disability benefits, and supplemental earnings benefits. Permanent partial disability allows you to collect benefits for serious or disfiguring injuries, even if you do not miss any significant work time. The time frame is limited, however. Permanent total disability benefits occur when you have been injured in such a way as to render it impossible to work in the future in any capacity. Temporary total disability benefits allows you to collect benefits as if you were permanently disabled for only a certain amount of time.

Lastly, supplemental earnings benefits occur when you have been seriously injured, but you can still work in some capacity, even if you cannot continue the job where you were previously employed. Supplemental earnings benefits require that you cannot do at least 90% of your previous job. In order to qualify for supplemental earnings benefits, the employer must not be able to offer the employee light-duty work. For example, if you work in a construction site and you are injured, then your employee may offer you a desk job while you are recovering. If, however, all the desk jobs are full, then the employee will likely have to pay supplemental earnings benefits to the injured employee.

Like any workers’ compensation claim, your injury has to arise out of the work context. You need proof of the injury to make a claim, so be sure to report injuries right away and see a doctor if necessary. The legal standard in workers’ compensation claims is a preponderance of the evidence, which is a slightly higher standard, so good records are important. However, the court can occasionally take your testimony alone as evidence of the injury.

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