Workers’ Compensation, Expert Witness Fees, and the Employer’s Benefit Offset

In previous posts we have examined the important role of expert witnesses in litigation. As a general rule, the party who retains an expert witness is responsible for paying for the witness’s services.

The issue of expert witness fees was central to the case of case of Burns v. Apache Corp, 853 So. 2d 708 (La. Ct. of App., 2nd Cir. 2003), which was an appeal from a ruling by the Louisiana Office of Workers’ Compensation (OWC). Mr. Barry Burns was employed by Apache Corporation as an oil well pump technician in Shongaloo, Louisiana. On June 21, 2000, he was struck and killed by a moving part of the pump he was working on. His widow, Terry Burns, made a claim for workers’ compensation against Apache and also filed a tort action against Dodson Tye Machine Works, Inc., a third-party contractor who had also worked on the oil well.

After the accident, Apache began paying Ms. Burns $384 per week in workers’ compensation death benefits. Ms. Burns’s lawsuit proceeded to trial where a jury awarded her $45,324 in damages against Dodson.

Under Louisiana’s workers’ compensation law, an employer who pays benefits is entitled to offset from its obligation any money the injured party/claimant also recovers from other parties in tort. (This situation usually arises in cases like this one where there are parties other than the employer who also may have contributed to the claimant’s injury or death. Although the claimant cannot sue the employer, he or she may pursue any potential tort claims against other parties involved in the accident.) The intent of this provision is to prevent the claimant from obtaining a “double recovery”–that is, enjoying both an award for tort damages and workers’ compensation payments from the employer, when together the amounts would exceed the claimant’s actual losses.

Under Louisiana law, the application of the employer’s benefits offset takes into account the court costs and attorney’s fees incurred by the claimant as a result of her related tort case:

The employer’s credit against its future compensation obligation shall be reduced by the amount of attorney fees and court costs paid by the employee in the third party suit. (La. R. S. 23:1103(A)(1))

In the Burns case, Apache sought to reduce its obligation to Ms. Burns by offsetting the $45,324 awarded to her in the tort case against Dodson. The OWC allowed the offset, but lowered the amount by $14,360 to cover Ms. Burns’s attorney’s fees in bringing the tort action. The OWC also reduced the offset by $5,700 to cover other court costs. It refused, however, to further adjust the offset for the $35,043 Ms. Burns spent on expert witnesses.

The Court of Appeal, in noting that Louisiana Workers’ Compensation law is “to be interpreted liberally in favor of the workmen,” concluded that requiring Apache to offset the expert witness fees would in no way lead to a double recovery by Ms. Burns. The court reasoned that “to disallow the offset for expert witness fees would be to punish the claimant by allowing the employer to disproportionately benefit from the employee’s successful… pursuit of tort remedies.”

Accordingly, the court ordered that Apache’s offset be adjusted by the amount of Ms. Burns’s expert witness fees, which effectively reduced Apache’s benefits offset to zero.

The Court of Appeal’s ruling reflects the purpose of the workers’ compensation scheme of protecting Louisiana families when workers are injured on the job. To have disallowed the consideration of Ms. Burns’s expert witness fees would have left her worse off than if she had not pursued her tort claim against Dodson in the first place: Ms. Burns would have received reduced death benefits from Apache and would have been left with a hefty expert witness bill. Since Apache was not 100 percent responsible for the incident that killed Barry Burns, the court appropriately demanded through its decision that any other at-fault party share in the duty to make Ms. Burns whole.

If you have been injured on the job, talk to an attorney who can help you understand your rights under the workers’ compensation laws and help you get the benefits your deserve.

Call the Berniard Law Firm toll-free at 1-866-574-8005.