Alexandria, LA—Third Circuit Affirms Disability Payments to Injured Employee with Preexisting Hip Replacement

roadman-1395447-695x1024No one wants to be injured at work and thus be unable to continue working to pay one’s bills.  Worker’s compensation exists to assist employees who may have been badly injured in the workplace. Among the benefits that may be paid after an employee has suffered a debilitating injury are temporary total disability benefits, (TTD), and supplemental earnings benefits (SEB). TTD benefits are awarded on an employee’s proof that he or she cannot work at all following injury, equal to two-thirds of the pre-injury wages. La.R.S. 23:1221(1)(c).  Supplemental earnings benefits are paid out when an employee is limited in his or her earning capability following an injury, payable at two-thirds of the difference between wages before the injury and those earned after returning to work. La.R.S. 23:1221(3)(a)(i).  Upon proof of an employee’s ability to work productively, an employer may be able to change the higher TTD payments to SEB payments.

In Louisiana, just because an employee has suffered from conditions that predate an incident of injury does not mean that that employee is to be prevented from recovery under worker’s compensation for that work-related injury.  If some accident in the workplace aggravates or reinjures a part of the body that has been previously injured, and this aggravation is to the point of disability, then an injured employee may bring a claim for disability.  The plaintiff still must prove that the workplace injury in question caused the disability.  However, it is enough to show that the injury could be factored into the chain of events that created the disability.  In this situation, the employee must show only that the disability did not exist before the accident, that the symptoms arose after the accident, and evidence that tends to show that it is possible that the disability could have resulted from the alleged incident.

As people age, their bodies become frailer and prone to injury.  Medical procedures necessary to restore one’s abilities to function in daily life as well as the workplace have beneficial effects but can also leave a person vulnerable to an increased risk of injuries.  These factors, alone or combined, can mean that an injury that does not sound very serious can prove debilitating to a person, as Cathy Turner discovered.  In December 2011. the 60-year-old Ms. Turner was a full-time admissions coordinator at the Lexington House nursing home in Alexandria, Louisiana.  On December 12th, she was accidentally struck on the hip by a swinging door.  This injury just so happened to be at the same location as her recent total hip replacement surgery in September of 2011.  This was the site of two previous hip surgeries as well.  After this incident, she experienced a tremendous amount of pain and inability to walk or even stand on the injured hip.  Multiple doctors concluded that Ms. Turner had become disabled due to the injury and the additional surgery required to help ease the constant pain. The extent of her injuries necessitated that she obtain a motorized scooter in order to get around when before she had been able to walk.  As such, the evidence tended to show that the disability stemmed from the work injury rather than the several pre-injury operations.  Most people who undergo these varieties of surgeries, according to the medical evidence, generally see improvement.  Regardless, Lexington House refused to pay the disability payments, claiming that her preexisting condition the three previous surgeries. The company also did not pay any supplemental earnings or for necessary medical tests.  Ms. Turner filed a worker’s compensation claim.  The Office of Worker’s Compensation (OWC) ordered her employer to pay her disability payments, an award for reconstructive surgery and medications, and penalties for failing to pay out certain specified benefits.

On appeal, Lexington House challenged all of these awards on various grounds.  It challenged the TTD payments specifically on the basis that the injury was preexisting. However, the Third Circuit Court of Louisiana found that disability benefits should have been paid out since it was apparent from the evidence that Ms. Turner had been able to work before the accident and had only become disabled and unable to work after the injury occurred. The court restated the idea that under Louisiana law, an employer “takes his employee as he finds him”, meaning that the employer is not off the hook simply because a person might have been especially frail prior to the workplace injury. If an employer cannot prove that the disability resulted directly from some other cause, then the employer may be made to pay out disability benefits. The court also found that Lexington had failed to raise the question of reducing to or not paying at all the SEB benefits that might have been considered.  Even if they had brought up this form of payment, evidence showed that Lexington House had not authorized testing (an FCE) that would ascertain if the company could provide a new job that would be within Ms. Turner’s now limited ability.

Both potential sides in a worker’s compensation action can take some lessons from this case.  Employers should be aware that just because an employee has previous medical issues does not mean that all injuries can be attributable to these problems.  Thus employers ought to invest in keeping the workplace as safe as possible for employees, especially those of advanced age or declined health.  Employees should be diligent in obtaining medical help after a serious injury as well as making sure to express any difference in abilities before and after they have been injured while working.

Results from being unable to work productively to contribute to society or to earn needed money can cause mental effects such as depression or anxiety.  Additional medical expenses may arise out of these sort of mental effects since a person might require extended therapy or additional medical expenses.  A bad injury can also lead to disfigurement of a person’s body, which not only impairs how someone looks but can also have secondary effects on health and comfort. For instance, an injury may require surgery to repair damaged tissues.  Such surgeries, especially when repeated in an area already weakened by injuries, can lead to damage of the skin, the muscles, or the layer of fat beneath the skin.  Especially in damage to fat, that portion of the body may take on an obvious divot or a bulged area.  In addition to looking deformed, such issues can also cause pain and another discomfort.  Sometimes in order to correct issues such as these, procedures of plastic surgery may be required.  Employers may be reluctant to pay out on secondary effects like mental anguish or issues caused by medical intervention in an injury.

A recent Third Circuit of Louisiana case reminds us that when an employee is injured in the workplace, the employer may be responsible for paying for more than lost wages. Ms. Cathy Turner learned of the widespread effects of an injury in 2011. In December 2011. the 60-year-old Ms. Turner was a full-time admissions coordinator at the Lexington House nursing home in Alexandria, Louisiana.  On December 12th, she was accidentally struck on the hip by a swinging door.  This injury just so happened to be at the same location as her recent total hip replacement surgery in September of 2011.  This was the site of two previous hip surgeries as well.  After this incident, she experienced a tremendous amount of pain and inability to walk or even stand on the injured hip. She was rendered unable to work, especially since it was medically recommended that she get a motorized scooter or another such device in order to be able to move around.   Ms. Turner already suffered from depression and stress, and this was very much aggravated since she could no longer work for a living or function in daily life as she had before the accident.  Her depression apparently did not respond to her doctor’s initial course of treatment, resulting in numerous medication changes. The doctor’s treatment of the depression had been approved by worker’s compensation as stemming from the work-related accident.  During the treatments and during the hearing, Lexington House resisted the notion of paying for psychiatric treatment and anti-depressants but was made by the Office Worker’s Compensation t to pay for these treatments anyway.  On appeal, the Third Circuit court seemed to find such payments to be acceptable and required, so it affirmed this award.  This was based on the evidence that there had been a clear difference in the medication prescribed to her before and after the injury.

Other negative effects that emanated from this injury included disfigurement of the hip area due to the injury itself and the surgery required to ascertain the damage.  This included injury to the skin, fat, and muscle that was both disfiguring in appearance and also caused a bulge under the skin that caused pain whenever Ms. Turner moved. Doctors recommended plastic surgery to deal with this problem.  Lexington House argued that it would not have to pay for the surgery as it was “cosmetic” in nature.  The worker’s compensation trial court required the employer to pay for this surgery to occur anyway.  On appeal, Lexington House argued numerous reasons it should not have to pay, especially citing La.R.S. 23:1221(p) which as they quoted it seemed to limit an employer’s liability for cosmetic surgery to situations in which an injured employee had been disfigured in the head or the face.  However, the Third Circuit found that this statute was both misquoted and misapplied.  The version of the statute that Lexington attempted to apply had been amended in 1983, removing the requirement for facial disfigurement.  Also, this section was not about claimants seeking TTD (temporary total disability) benefits.  The Third Circuit continued that medical evidence and past cases demonstrate that plastic surgery is sometimes necessary to restore function to parts of the body or to correct new health issues.  If the surgery is deemed medically necessary, then it can be claimed for under worker’s compensation.

A lesson to be learned from this case is that worker’s compensation is designed to help injured plaintiffs fully.  Work-related incidents hurt more than someone’s physical form.  A reminder for attorneys, in this case, is important of properly researching and citing the law as to avoid ineffective arguments or criticism by a court.

People generally want to give their due, especially in cases where they are hard workers who, through no fault of their own, may have come upon hard times like the inability to continue working.  Properly calculating the benefits an employee ought to receive under worker’s compensation is an essential part of making sure such claims run smoothly for both parties.  An employing company is not really, in the long run, saving itself much hassle or money if it cuts short its payout to its employees whether purposefully or by mistake.

The Louisiana Third Circuit Court of Appeals discussed the proper methods for calculating benefits to be paid out to employees in a recent case.Ms. Cathy Turner learned of the widespread effects of an injury in 2011. In December 2011. the 60-year-old Ms. Turner was a full-time admissions coordinator at the Lexington House nursing home in Alexandria, Louisiana.  On December 12th, she was accidentally struck on the hip by a swinging door.  This injury just so happened to be at the same location as her recent total hip replacement surgery in September of 2011.  This was the site of two previous hip surgeries as well.  After this incident, she experienced a tremendous amount of pain and inability to walk or even stand on the injured hip. She was rendered unable to work, especially since it was medically recommended that she get a motorized scooter or another such device in order to be able to move around.   The employer, Lexington House, did not pay out certain benefits, and so Ms. Turner took up a claim in the Office of Workers’ Compensation (OWC).  The OWC then made a judgment requiring the employer to pay these claims as well as several penalties for refusing to pay the benefits and undercutting some of them.  Denying that these payments should be required, Lexington House appealed to the Third Circuit court.  Among its arguments was that the calculation the OWC used was too high.

The Third Circuit disagreed with Lexington House’s calculation of what wages the benefits ought to be based upon.  Lexington House pointed to the month before the accident and claimed that the benefits ought to be based on her hours and wages from that time period.  The appellate court ruled that the wages and regular hours should have been based on her work history before the hip replacement surgery in September of 2011 and the leave and lightened duties that had followed that procedure.  She had had full permission to work fewer hours while recovering.  As such, the Third Circuit wrote that her wages should then be presumed to be the full-time, forty-hour work week that Ms. Turner had worked before her hip replacement. This would make her a full-time employee and applied La. RS 23:1021(13)(a)(i) which allows for the standard to be the wages for work done four weeks before the accident OR wages equivalent to forty hours, whichever is greater.  This was in contrast to Lexington House’s argument under La.R.S. 23:1021(13)(a)(ii), which uses the hours worked before the accident IF the employee had chosen under his or her own decision to work fewer hours apparently without permission of the employer.  Because her working fewer hours had been approved and indeed offered by the company, she would be held to the (a)(i) standard.  Due to this, the Third Circuit affirmed the decision to recalculate the wages and penalties for failure to pay the correct amount of benefits.

This case illustrates the difference between the two standards used to calculate hours worked for the purposes of worker’s compensation.  If a business has been gracious enough to allow an employee to take fewer hours for some issues, it cannot turn around and use that fact against the employee.  This might also encourage employees to seek permission for fewer hours before simply working fewer hours without approval.

 Additional Sources: CATHY TURNER VERSUS LEXINGTON HOUSE

Written by Berniard Law Firm Blog Writer: Ashley Weaver

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