Articles Posted in Pain And Suffering Claims

healthcare-upclose-1322372-1024x768Because of the highly technical aspect of seeking relief from the court system, someone unfamiliar with the legal process can be confused and frustrated by the litigation process. This circumstance can be intensified by the harm done and the matter being litigated. Mr. William Matthews, the surviving husband of Mrs. Geranda Matthews, faced this exact problem when filing a medical malpractice claim against two of his wife’s physicians and Louisiana State University Health Systems.

In 2009, Mrs. Matthews went to the hospital complaining of pain. Unbeknownst to the Matthews at the time, the pain was caused by lung cancer. Allegedly, two physicians at Moss Regional Medical Center failed to properly diagnose and treat her cancer until April 2010. The plaintiff also alleged that, because of the physicians’ failure to properly diagnose and treat her, cancer attached to her spinal cord, which caused intense pain, eventually paralysis, and she later passed away.

A claim was submitted to a medical review board, which found that the physician breached the standard of care.  Subsequently, a medical malpractice lawsuit was filed with the Judicial District Court for the Parish of Calcasieu. Mr. Matthews also filed a motion for summary judgment on liability, causation, and damages. Louisiana State University Health Systems, the Defendant, opposed the motion asserting that there was a factual dispute over whether Ms. Matthews pre-existing condition contributed to her damages.  After a hearing, the District Court granted the motion for summary judgment on the issues of liability and causation, leaving calculating damages for another motion for summary judgment or trial. Louisiana State University Health Systems appealed the judgment to the Louisiana Third Circuit Court of Appeal.   

outdoor-1436934-1024x768Workers compensation laws require an employee to be injured within the course of employment to qualify for benefits. However, what happens when an employee is injured without any witnesses present? How can the employee prove that the accident really happened? This case out of Calcasieu Parish demonstrates the burden for a workers’ compensation claimant in Louisiana to prove an unwitnessed accident.

Thomas Gibson was employed by Resin Systems (“Resin”) as a maintenance man and was injured while loading iron beams in December of 2012. On January 28, 2013, Mr. Gibson filed Form 1008, a disputed claim for compensation, against Resin and its insurer LUBA Casualty Insurance Company, claiming that he injured a muscle in his back. Resin filed a general denial and disputed that Mr. Gibson was injured at work. Following a trial, the Workers Compensation Judge (“WCJ”) found that Mr. Gibson suffered a compensable injury and that Resin owed both penalties for failure to pay benefits and also attorneys fees for failure to reasonably controvert the claim. Resin appealed the WCJ’s judgment to the Louisiana Third Circuit Court of Appeal.  

Louisiana’s Supreme Court has outlined the burden of proof for a workers’ compensation claimant to prove an unwitnessed accident. An employee may prove by testimony alone that an unwitnessed accident has occurred when: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. See Bruno v. Harbert International, Inc., 593 So.2d 357 (La. 1992). The fact-finder’s determinations as to whether the worker’s testimony is credible and whether the burden of proof has been met are factual determinations that are not be disturbed on appeal without a showing of manifest error.

chemical-stuff-1-1489274-1024x768When multiple companies work together on a project that causes an injury how is liability decided between the companies? That was the case when two Parish of Jackson truck drivers and their trucks were sprayed with acid from a broken hose. The two companies in charge of the project pointed the finger at each other and tried to avoid liability. This case deals with issues of negligence in inspection and the importance of causation in a negligence claim.

Two independent contractor truck drivers, Gregory Robert and Earl Pania, were hired by Turner Specialty Services (Turner) to supply truckloads of hydrochloric acid to clean pulp mill tanks for RockTenn CP, L.L.C. (RockTenn).  Mr. Robert’s truck was the first to pump acid into the tank while Mr. Pania waited to go next. Turner employee William Thomas pumped nine gallons of acid when the measuring gauge stopped. Mr. Thomas stopped pumping, checked his equipment supplied by Turner, and found no problem. RockTenn was asked to check its equipment and RockTenn found no problem and instructed Mr. Thomas to resume pumping acid. The acid still did not pump.

Mr. Thomas increased the pressure on Turner’s pump on his next attempt. The Turner hose ruptured, sprayed Mr. Thomas with acid, as well as Mr. Robert and Mr. Pania’s trucks. Mr. Robert and Mr. Pania also claimed to have come into contact with the acid fumes and that their trucks were damaged from the acid.

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Employers and workers’ compensation insurance companies are continually looking for ways to cut their workers’ compensation claim amounts. For the injured employee, a workers’ compensation claim is a new process. But for the employer and insurance company reducing costs is a continual process. This litigation can even continue to happen years after winning an initial award. This was the case for a Parish of Lafayette employee in a recent case in the Louisiana Third Circuit Court of Appeal. Doctor examinations and testimony about an injury can always be required and, as in this case, improvement of an employee’s condition for the better can call for a reduction in workers’ compensation benefits.

Viel Olivier was a self-employed carpenter who was injured in 2003 while unloading a miters saw from his truck. He had contracted with LUBA Workers’ Compensation for his workers’ compensation insurance. Initially, Mr. Olivier was determined to be temporarily and totally disabled and was awarded workers’ compensation benefits.

LUBA later filed a motion to modify Mr. Olivier’s benefits because LUBA believed that Mr. Olivier was capable of light duty work and was no longer temporary and totally disabled from the injury. Mr. Olivier objected to this change and argued that LUBA was unable to meet its burden of proof with regard to a change in circumstances because the evidence was essentially the same as it had been at the previous hearing.

sickle-1383523-691x1024The workers’ compensation system exists to compensate employees when a work-related accident occurs.  Frequently, however, employers will attempt to deny or at least curtail benefits.  One common tactic is to blame an employee’s injuries on a pre existing medical condition rather than the work accident.  But does this excuse really work when a tree falls on an employee’s head?  As far fetched as it sounds, this was the scenario when an Ouachita Parish employer attempted to stop paying benefits after a tree accident.  

Bruce McCoy worked as a driver and groundsman for W.A. Kendall & Co., Inc. (“Kendall”). Mr. McCoy’s duties included cutting and dumping trees and tree limbs. While at work cutting trees,  a tree fell on Mr. McCoy causing a head injury. He needed treatment for headaches, neck pain, and a skull fracture. Doctors differed as to whether he could return to work and at what capacity. Once it was determined that Mr. McCoy could return to work with certain restrictions, Kendall offered him a job as a groundman.  Mr. McCoy did not respond however and Kendall terminated benefits.  A few months later, Mr. McCoy did request to return to his old position, however, he was denied.  Kendall’s vice-president opined that the denial was based upon Mr. McCoy’s possible inability to do the necessary work of a groundsman. Mr. McCoy then filed a claim for supplemental earning benefits (SEBs). The Workers’ Compensation Judge (WCJ) awarded $18,821.89 to Mr. McCoy in SEBs. Kendall appealed to the Louisiana Second Circuit Court of Appeal arguing that Mr. McCoy’s ongoing disabilities were actually the result of preexisting conditions because Mr. McCoy had diagnosed scoliosis.  

Workers’ compensation benefits are available to an employee for injuries sustained from an accident arising out of and in the course of employment pursuant to La. R.S. 23:1031(A).  A causal connection between accident and injury is established when an employee can demonstrate that before the accident they were in good health and post accident they have a disabling condition demonstrated by medical evidence supporting a reasonable possibility of a causal connection.  See Quinones v. USF & G, 630 So. 2d 1303 (La. 1994).  A pre-existing condition does not automatically bar benefits; the employee must show the accident aggravated the condition. See Peveto v. WHC Contractors, 630 So. 2d 1303 (La. 1994). Aggravation can be shown by a new disabling condition occurring at the time of the accident and supported by medical evidence.  

stripe-4-1189901-1024x768Automobile accidents are an unfortunately common occurrence; becoming increasingly more common with the temptations of texting and social media use while driving.   While not all accidents result in life-threatening injuries, they do most often come with at least the headache of assigning fault.  Figuring out who was at fault sometimes comes down to a game of “he said, she said” before a judge or jury.   And as the Louisiana Fifth Circuit Court of Appeal recently explained, the judge or jury’s interpretation of that game is difficult to reverse.   

On October 20, 2011, Rorilyn Prejeant was rear ended by Duane Smith on an expressway in Westwego, Louisiana.  Ms. Prejeant claimed that while she was sitting at a red light, Mr. Smith’s truck was sitting behind her.  When the light turned green, the car in front of Ms. Prejeant failed to proceed, blocking Ms. Prejeant’s car.  Ms. Prejeant claimed she saw Mr. Smith’s truck begin to move, honked her horn, yet Mr. Smith failed to stop thus hitting her.  Mr. Smith’s account was rather different.  He claimed that when the light turned green he suddenly felt his truck go out of gear.  When he attempted to put the truck in gear and proceed, he realized he hit another car but claimed the car was not present when the light turned green.  Mr. Smith contended that Ms. Prejeant told him she merged into Mr. Smith’s lane right as the light turned green.  The police report indicated both that Ms. Prejeant changed lanes before Mr. Smith saw her vehicle but also that Mr. Smith saw Ms. Prejeant’s vehicle come to an abrupt stop before he was able to refrain from hitting her.  

Ms. Prejeant did not seek medical attention at the time of the accident, however later sought medical care when she experienced headaches, back, neck and shoulder pain.  In January 2012, Ms. Prejeant spoke with an attorney concerning the accident and subsequently started frequent visits to the chiropractor for her injuries.  Ms. Prejeant also had an MRI conducted of her spine for injuries related to the accident. Ms. Prejeant filed a lawsuit against Mr. Smith for damages to her vehicle and medical expenses. After a trial before the Judicial District Court for the Parish of Jefferson, the judge concluded that Mr. Smith was liable to the Plaintiff in the amount of $16,000.00 for general damages and $5,105.00 in special damages for the medical expenses. Mr. Smith appealed to the Fifth Circuit claiming the District Court erred in disregarding the physical evidence of vehicle damage and in relying on Ms. Prejeant’s testimony.  

stethoscope-2-1420449-1-1024x605Medical malpractice suits are notorious in the legal community as being difficult and expensive cases. One reason why these cases are so difficult is because lawyers must hire and rely on numerous experts to argue why a professional should, or should not be, liable. But what happens when a plaintiff in a medical malpractice suit cannot find an expert to support his or her claim? A recent medical malpractice case involving a gynecologist illustrates this exact problem.

In this case, Ms. Sabrina Lee filed a suit against Dr. George Bailey alleging that Dr. Bailey committed medical malpractice. In 2010, Dr. Bailey performed a hysterectomy on Ms. Lee. Shortly after the surgery, Ms. Lee began experiencing sporadic urine leakage. Ms. Lee, concerned about the leakage, scheduled multiple appointments with Dr. Bailey to address her concern. After multiple visits, and no improvement in her condition, Ms. Lee decided to visit another doctor, Dr. Charlie Bridges. Dr. Charlie Bridges, a urologist, determined that Ms. Lee had a ureterovaginal fistula. Following this determination, Dr. Bridges removed the ureterovaginal fistula. After the removal, Ms. Lee experienced no more leakage.

After the removal of the ureterovaginal fistula, Ms. Lee filed a lawsuit against Dr. Bailey. Dr. Bailey filed a motion for summary judgment. A motion for summary judgment is a procedural device used to “secure the just, speedy, and inexpensive determination of [] action[s].” La. C.C.P. art. 966 (2016). The party seeking summary judgment has the burden of proof and must show that there is no genuine issue as to material fact, and that the moving party is entitled to judgment as a matter of law. For Ms. Lee to successfully win her medical malpractice case, she must prove (1) the applicable standard of care; (2) a breach of the applicable standard of care; and (3) a causal connection between the breach and the resulting injury. La. R.S. 9:2794 (2016). Expert testimony is needed to prove the causal connection between the breach of the standard care and the injury.

crash-car-1180834-1024x827Sometimes judges and juries make mistakes that prevent injured parties from obtaining the relief they deserve. Both judges and juries can be swayed by arguments and make rulings that seem contrary to the weight of the evidence presented at trial. In such a situation, it is important to have an excellent attorney on your side to assert your rights and present you with proper avenues of appeal. Kimberly Guidry found herself in just this position after the trial court awarded her no damages for injuries she sustained in a car accident in Erath, Louisiana.

Ms. Guidry was injured in a three car accident while a passenger in her brother’s pickup truck. The accident occurred when Karl Creduer ran a red light, striking another person’s vehicle. This other vehicle then crashed into a Ms. Guidry’s brother’s pickup truck. Ms. Guidry and her brother were both injured in the accident. Ms. Guidry was taken to the hospital in an ambulance due to complaints of pain in her back and knee. At the hospital, doctors took X-rays of Ms. Guidry, placed her in a cervical collar, and gave her prescription medicine for her injuries.

After leaving the hospital, Ms. Guidry saw three separate doctors in hopes of alleviating the pain caused by the accident. Through these doctor visits, it was determined that Ms. Guidry had pre-existing arthritis and pre-existing degenerative conditions in her spine and knee. These ailments arose prior to the accident. According to the doctors, the accident aggravated these ailments.

to-gym-1445095-1024x766Many people own a gym membership but upwards of 80% of those people fail to regularly go to the gym. If you find yourself infrequently inside of a gym, it can seem like a strange place. There are many different machines and sometimes it isn’t so clear how to properly use those machines. Indeed, misuse of gym equipment can result in serious injury. So what sort of duty does a gym owe to its members? The following case may help shed some light on this issue.

Thomas Nearhood was injured while working out on a Precor Smith Squat Machine at Anytime Fitness in Pineville, Louisiana. Nearhood filed a lawsuit to recover damages for his injuries and one of the defendants was Fitness Partners, the owner of Anytime Fitness. At issue before the Trial Court was whether Nearhood was a “sophisticated user” of the squat machine. If Nearhood was a sophisticated user, the gym operators had no duty to inform or warn Nearhood about using the machine. But what exactly constitutes a sophisticated user?

Nearhood argued that Fitness Partners was negligent because it failed to properly instruct him on how to use the squat machine. Fitness Partners responded with a summary judgment motion arguing that it had breached no duty, there was no genuine issue of material fact, and judgment for Fitness Partners was proper as a matter of law. The Trial Court granted Fitness Partners’ motion and Nearhood appealed to the Louisiana Third Circuit Court of Appeal. The Court of Appeal affirmed the Trial Court’s decision.     

craftsmen-1438652-1024x683A lawsuit out of Lafayette Parish demonstrates how Louisiana law allocates workers’ compensation benefits. To qualify for benefits, an employee must be injured during the course of employment. Temporary Total Disability (TTD) Benefits are paid while the employee is unable to work due to an injury. Supplemental Earnings Benefits (“SEB”) are a bit more technical. SEBs are paid when the injured worker has reached “maximum medical improvement” and is no longer eligible for TTD, but is incapable of earning 90% of pre-accident wages.

Our case begins on August 16, 2006, when Ronald Leleux, a carpenter for Numa C. Hero & Son (“Numa Hero”), was injured on the job while trying to escape from a swarm of wasps. About eight months following the accident Leleux was awarded TTD (the “consent judgment”). On November 18, 2010, Leleux consulted Dr. Daniel Hodges for pain management. Nearly two years later Leleux met with Dr. Douglas Bernard, who was recommended by Numa Hero. Dr. Bernard’s report indicated that Leleux had benign degenerative disk disease and that Leleux could perform unrestricted work activities. On August 7, 2013, Leleux saw a third doctor who was appointed by the Workers’ Compensation Judge (WCJ), Dr. Christopher Belleau. Dr. Belleau testified in a deposition that Leleux had reached maximum medical improvement and was capable of sedentary work. Less than one year after Dr. Belleau’s deposition, Numa Hero filed a motion asking to modify the earlier consent judgment. During the trial on the motion, the WCJ considered Leleux’s testimony, Dr. Belleau’s deposition, and the records of Dr. Bernard and Dr. Hodges. The WCJ issued a judgment modifying Leleux’s benefits from TTD to SEB. Displeased with the outcome, Leleux appealed the WCJ’s modification to the Louisiana Third Circuit Court of Appeal.

Pursuant to La.R.S. 23:1221(1)(d), when a claimant’s condition has stabilized and treatment is no longer required, TTD is not appropriate and a determination regarding the extent of the claimant’s disability must be made. See Navarre v. K-Mart, 803 So.2d 206 (La. Ct. App. 2001). La.R.S. 23:1310.8 sets forth the WCJ’s authority to modify compensation awards. Two provisions of La. R.S. 23:1310.8 were at issue in this case: subsection (A)(1), which applies to a reclassification of benefits, and subsection (B), which applies to a change in the amount of compensation or a request to end the payment of benefits.