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the-old-sawmill-hdr-1209113-1-1024x759If  you are injured while at work, there are many paths that you may take for financial relief. The path that you choose along with how you navigate that path will be a decision that will affect you for the rest of your life. The following case out of  Tangipahoa parish demonstrates why it is necessary in workers compensation cases to comply with certain orders and if you don’t why objections to rulings based on your lack of responses will not be considered.

On May 2, 2008, Mr. Carlton Williams was injured during the course of his employment at a sawmill as a delivery driver when a forklift driver dropped several pallets on top of him, knocking him unconscious. Mr. Williams alleged injuries to the head, shoulder, neck, left foot, right knee, lumbar, and various other injuries. Mr. Williams filed a tort claim against the forklift operator’s employer and the employer’s insurer, which settled out of court.

After being injured at the sawmill Mr. Williams received workers compensation benefits because the injury occurred at his job. If a third party is responsible for someones injuries that occur at work, which occurred in this case, the injured worker can file a lawsuit against that third party and at the same time receive workers compensation benefits.  However, when you resolve the lawsuit against the third party you will be forced to pay back the workers compensation carrier all the benefits they paid you.

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workers-1215831-1-1024x683It  seems an insurance company’s first response to a claim is to deny the claim. The Louisiana Workers’ Compensation Corporation (“LWCC”) is no exception. The following case out of Loreauville Louisiana demonstrates the  arguments that can be made and standards to assess whether an injured employee is due LWCC’s benefits or benefits as a longshoreman.

Luis Hernandez was working on the Bayou Teche in Loreauville when he suffered an injury while cutting timber. Mr. Hernandez was hired to build a boat ramp into the Bayou Teche. He was injured  while working in a grassy area between thirty and one hundred feet away from the boat ramp. Mr. Hernandez filed a claim for compensation with the Office of Workers’ Compensation in 2014 after  receiving his injuries. He was employed by UNO Enterprises, LLC and Louisiana Workers’ Compensation Corporation was UNO’s workers’ compensation carrier. LWCC denied  coverage of the claim asserting that Mr. Hernandez was a longshoreman under the Federal Longshoreman & Harbor Workers’ Compensation Act (“LHWCA”) found in the United States Code in Title 33. Therefore,  the LWCC reasoned that their policy did not provide for coverage for Mr. Hernandez but rather the LHWCA applied.

Good lawyers know to challenge an insurance company’s claim denial, which is what Mr. Hernandez’s  attorney did in this case. After a lower court decision an appeal was filed and the Louisiana Third Court of Appeals received the case to utltimately decide whether the LHWCA did apply and thus whether LWCC would be required to provide workers’ compensation coverage to Mr. Hernandez.

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yellow-bicycle-1494018-1-1024x768When one is injured by the actions of another, it is hard to consider all of the moving parts inside and outside of a lawsuit designed to make the injured person whole again. Past medical bills after an accident may come back to haunt someone who has been injured after they have won their personal injury lawsuit.

On February 22, 2013, Hiram Lawrence Armstrong was injured riding his bicycle on D’Abadie Street in New Orleans, Louisiana. He was struck by a car and taken to a Louisiana State University Hospital (LSU) and to University Medical Center Management Company (University). At the time of Mr. Armstrong’s treatment, LSU was a public hospital and University was a private hospital- the distinction is important and will become clear later.

Mr. Armstrong had some disputes regarding payment of his medical bills with the insurance companies involved, but worked out those disputes outside of this case. This case involves Mr. Armstrongís dispute with LSU and University of the amount of the medical bill and how those relative amounts are determined.

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pills-1158992-1024x683Patricia Jolynn Paulsell-Lathrop (Ms. Paulsell) was injured in a motorcycle accident on June 13, 2005. She, consequently, needed extensive medical care. Her health insurance company covered some of the medical costs. The Louisiana Department of Health and Hospitals- Medicaid Program (DHH) covered some additional costs. According to DHH, Ms. Paulsell received $69,131.92 in medical assistance payments from June 13, 2005 through December 8, 2008.

On December 11, 2008 Ms. Paulsell settled a lawsuit she had with the Louisiana Department of Transportation and Development (DOTD) seeking damages for her motorcycle injury.

Here is where it gets a little tricky- according to La.R.S. 46:446(B) DHH must be given notice within 30 days of any settlement stemming from an event that caused an injury requiring DHH assistance by any person who received DHH benefits; failing to provide notice of the settlement causes the benefits recipient to be responsible for total payments received.

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operating-room-1442366-1024x683With all of the advances in the field of medicine these days most people would probably think that a surgery to remove a person’s gallbladder would be considered fairly routine. However, when it comes to surgery, nothing can be taken for granted. A Louisiana resident, Richard Logan, and his doctor found this out the hard way during a surgery that was performed in August of 2010. That was when Mr. Logan underwent surgery to have his gallbladder removed, but the surgery was anything but routine.

During the surgery, the doctor, Dr. Donald Schwab, cut the wrong “duct,” believing it to be the correct one. However, the correct duct had been “obliterated” due to Mr. Logan’s medical condition. As soon as the mistake became evident, the doctor, who was a general surgeon, consulted with a specialist. It was then determined that Mr. Logan needed to be transferred, and subsequently the problem was corrected. A Medical Review Panel investigated the issue and determined that Dr. Schwab did not breach the appropriate standard of care. That, however, did not deter Mr. Logan, and he filed a lawsuit against Dr. Schwab in state court.

The case went all the way to a jury trial, which lasted for three days. In the end, the jury determined that Mr. Logan had failed to establish the appropriate standard of care for the surgery in question. On March 15, 2013, the trial court dismissed Mr. Logan’s claims. He appealed, claiming three sources of error. First, Mr. Logan claimed that the trial court judge had improperly influenced the jury. Second, he claimed that the testimony of a certain expert witness, as well as the admission of the opinion of the Medical Review Panel, were both in err. Lastly, Mr. Logan claimed that the jury’s finding was in err.

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pediatrics-1529152-1-1024x683Many people in Louisiana have been in a situation where they are striving to earn a promotion at work. Employers typically reward loyal, qualified employees in these circumstances, but sometimes there is more than one employee who may be right for the job. The ultimate choice may leave other employees feeling spurned or, in some situations, questioning if the decision was made for the wrong reasons.

This is where Brian Toval, a former employee of the Children’s Hospital in New Orleans, apparently found himself in 2011. Toval, who is black, had initially been hired as a medical technologist, but within three years he had risen to senior systems analyst in the hospital’s IT department. However, apparently all was not right, because in 2008 he expressed some complaints to his supervisors – both of whom were white – about some circumstances of his employment. It seems nothing ever came of those complaints, and then in 2010 Toval expressed interest in a soon-to-be-created project team lead position. He did not get promoted to that position. Instead, the position was filled by a white employee – without the position ever being announced or any interviews being conducted. Two days later, Toval filed a complaint with human resources, but the HR department ultimately determined that his complaint was unfounded. In the months that followed, Toval claimed that he experienced retaliation through humiliation, a heavy work load, and excessive scrutiny of his job performance. In June of 2011, Toval took medical leave to address mental health conditions, but before doing so he filed a complaint with the Equal Employment Opportunity Commission. His complaint to the EEOC claimed that he had been discriminated against in the promotion process due to his earlier complaints from 2008. While Toval was on medical leave he accepted employment elsewhere and resigned from the Children’s Hospital, but that did not stop him from taking legal action.

In September of 2013, Toval filed a lawsuit in federal court based on discrimination claims. However, the trial court granted the Children’s Hospital’s motion for summary judgment, dismissing all of Toval’s claims. The trial court reasoned that dismissal was appropriate for two reasons. First, the EEOC had not conducted a full investigation of Toval’s claims. Second, Toval was unable to rebut the hospital’s non-discriminatory reasons for why he had not been chosen for the promotion. Toval appealed the case to the Court of Appeals for the Fifth Circuit.

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tennis-1466072-1-1024x768Everyone likes to be paid what they think they are worth at their jobs. But, sometimes employers take actions that make employees question their value and question whether or not the employer has ulterior motives. That seems to have been the thought process for the former coach of LSU’s women’s tennis team, and he filed a lawsuit as a result.

The plaintiff, Anthony Minnis, was the first black head coach of any sports team in LSU’s history. He was hired in 1991, and by the end of his contract Minnis was earning a salary of $85,000. Throughout his tenure he had received multiple awards, despite the fact that the team he coached had only achieved a winning record in three seasons out of 20. And, in the final three years of his contract, the team had experienced three straight losing seasons. This did not stop Minnis from questioning his pay, to which LSU responded that his salary was based on the team’s performance and comparable salaries for other women’s tennis coaches in the Southeastern Conference. His performance reviews throughout his term of employment were mixed, and in 2008 Minnis had in fact received a written reprimand due to his job performance. His response to that reprimand was to accuse his immediate supervisor of being a racist, although he could not support that claim with any facts. Minnis’ employment situation with LSU seemingly came to a head in February of 2012, when he was said to have been involved in a serious incident that jeopardized the health and safety of a team member. In June of 2012, LSU announced that the school would not renew Minnis’ contract. His replacement was a white, female coach who was offered a salary of $115,000.

It did not take long for Minnis to take action. In November of 2012, he filed a lawsuit based on various state and federal claims, including claims of disparate pay, discrimination, a hostile work environment, and retaliation.  These claims included, Title VII, Title IX discrimination under state law.  About two years later, in October of 2014, the United States District Court for the Middle District of Louisiana granted LSU’s motion for summary judgment and dismissed all of Minnis’ claims. He appealed that ruling to the Court of Appeals for the Fifth Circuit.

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gdansk-shipyard-6-1503135-1-1024x679Sometimes a party feels that he, she, or it will fare better in a federal court rather than in the state court. At least for defendants, there is a process, known as removal.  This can be accomplished for several reasons, one of them being that the person or entity being sued is the federal government, an officer of the government, or someone acting under the orders of such an officer. This is governed by 28 U.S.C. 1442   However it can be returned to the state court by the plaintiff by asking the federal court to remand it, should the case not meet the standards to be heard in the federal court.  In response, the defendant party might appeal and ask that the remand  be stayed, or essentially halted.  They must, however, meet certain conditions, including that the appellate court find that the party has a likelihood of succeeding in its objective. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406, 410

The federal Fifth Circuit Court of Appeals (which governs Louisiana) recently ruled, reshowing the standard for keeping a lawsuit in the federal court, or taking it back to the state court. In 2013, Mary Wilde was diagnosed with terminal mesothelioma.  She believed this was due to indirect exposure to asbestos through her father who had worked at a shipyard in the 1940s. As such she brought lawsuit against the current owner of that shipyard.  There was evidence that during the  time that her father had been employed for the shipyard, that yard had been used for the construction of ships for the federal government.  Upon this knowledge, the company, Huntington, filed to remove the case to the federal district court, on the basis that the shipyard in question had acted under the order of a federal agent.  Ms. Wilde filed a motion to remand and the district court agreed.  In response, Huntington appealed to stay, or stop for a time, the remand order.

The case went to the Fifth Circuit Court of Appeals in order to determine whether this lawsuit could have indeed been properly removed to federal court.  In order to allow this, Huntington would have to prove that it or its predecessors had acted in the past upon federal orders and that these actions were what caused a plaintiff injury. The Fifth Circuit found that  the shipyard had constructed ships for the federal government and so could be said to have acted under order from a federal agent.  However, the company would have to prove the causation.  Under Winters v. Diamond Shamrock Chemical Company, causation exists when toxic materials are used where the federal government both directs construction, including the use of materials that turn out to be toxic and provides these materials to be used in building.  Winters v. Diamond Shamrock Chemical Co., 149 F. 3d 387 – Court of Appeals, 5th Circuit 1998.

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waiting-room-1631142-1024x765People trust doctors and hospitals to take care of their health issues.  When someone in the medical community makes a mistake, it can seriously affect a person’s quality of life.  In Louisiana, in order to sue for medical malpractice, a plaintiff must prove what standard of care should have been provided, that the doctor somehow violated that standard, and that by doing so, the doctor caused the plaintiff’s injuries. La.R.S.9:2794.  If the problem with the doctor’s care would not be obvious to the average person, the plaintiff must use an expert witness to prove the claim.  See Pfiffner v. Correa , 643 So.2d 1228

In order to prove a claim of medical malpractice, one generally needs the help of an expert.  A recent decision by the First Circuit Court of Appeals  provides some insight on how this should be done.  In late October 2010, Danny Penn went to a Dr. Luikart at Our Lady of the Lake Regional Medical Center to deal with fevers and other medical problems after a colonoscopy.  He was admitted to the hospital and sent home a few days later.  He was treated with strong antibiotics such as Gentamicin, and this treatment was to continue while he was at home.  A few weeks later he began to experience lengthy periods of dizziness and nausea.  Because of these issues, Mr. Penn was taken off the antibiotic.  Eventually he was diagnosed with Dandy’s Syndrome, a condition of the ear that causes severe issues with balance and often dizziness to the point of disability.   In 2011, Mr. Penn sued the medical services company that had provided the prescribed antibiotics through infusion at his home.  Around that time, a medical review board found no evidence that the doctor or the hospital had failed to provide the necessary care.

In 2013, Mr. Penn filled a petition adding the doctor and hospital to the lawsuit while alleging that he had been prescribed an overdose of the Gentamicin, causing his illness.  In response, the defendants filed a motion for summary judgment to end the case, arguing that Mr. Penn had failed to provide enough evidence to prove his claims.  In response, Mr. Penn argued that the doctors had indeed failed to provide the correct care, including as evidence affidavits from a different doctor and a pharmacist.  In opposition, defendants filed to have the court strike, or remove from the evidence, the affidavits, on the basis that the doctor that had made these claims was not qualified in that particular standard of care, being a cardiologist and not a hospital doctor.  They also argued that this was an argument not brought before the medical board and thus expanding the original claim.  The trial court agreed and struck out this evidence, thus making it impossible to carry on with this argument. As such, the defendants were awarded the summary judgment.  Mr. Penn appealed to the First Circuit Court of Appeals.

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school-1231939-1024x691Litigating an issue once is a difficult and time consuming process in itself, and having to do so twice would be an unbearable and unfair burden which is the reason for the existence of the doctrine of res judicata. It serves the courts purposes of fairness and efficiency by preventing the relitigation of matters previously litigated and decided on as well as those that should have been raised and litigated in a previous lawsuit. The application of this doctrine is a complicated and lengthy one but the Second Circuit when reviewing a trial courts application of the doctrine in a lawsuit involving teacher Kamithia D. Penton as plaintiff and the Caddo Parish School Board (CPSB) as defendant (with others) was able to do so whilst also addressing a few of the doctrines exceptions.

The lawsuit itself arises out of an injury suffered by Ms. Penton when escorting a bipolar, disruptive and violent student to the school’s office. The injury took place after Ms. Penton had already urged principal Pamela Bloomer to remove the child from the school due to the danger he posed to the staff and other students. Ms. Penton, on October 12, 2011 filed a lawsuit against the child’s divorced parents; Ms. Bloomer and; the CPSB in its capacity as Ms. Bloomer’s employer seeking damages for her personal injuries. State Farm was later added as as a defendant, as the insurer of each parent. In response to the lawsuit CPSB and Ms. Bloomer filed a motion for summary judgment asserting Ms. Penton could not establish an intentional tort and that all of her recovery was in workers compensation and that she had in fact already made the workers compensation claim and received full benefits.

The motion was granted as to all parties except the father and his insurer, who asserted the affirmative defense of the payment of workers compensation benefits. CPSB then sought intervention to recover the sums already paid and any future sums they may have to pay on Ms. Penton’s behalf. In response Ms. Penton filed the exception of Res Judicata as set forth in La. R.S. 13:4231 stating that the intervention sought to present a claim which CPSB was obligated to bring prior to the dismissal as a compulsory pleading. Before the exception was heard in court on June 16, 2014, a settlement was reached regarding the liability of the father and his insurer for Ms. Penton’s injuries. The claims were dismissed “with prejudice, reserving any and all rights” as they relate to claims by Ms. Penton between her and the CPSB.

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