Pain And Suffering Claims

July 3, 2017

Inability to Show Work Related Injury Crushes Workers’ Compensation Case Out of Monroe

pipes-1446925-1024x683 In the world of workers’ compensation, being injured while on the job is an obvious requirement. Things tend to get muddled however in these cases over accident dates, pre-existing injuries, and the actual cause of the injury. In the following case, Carlos Harvey had all these things working against him in his claim for workers’ compensation benefits against his employer Sol’s Pipe & Steel (“Sol’s”).

Mr. Harvey allegedly suffered a shoulder injury while pulling steel weighing between five and 550 pounds. Initially, Mr. Harvey stated the injury occurred on August 8, 2011. Mr. Harvey testified he reported the accident to his supervisors, T.J. Anderson and Mark Price, then reported to LSU E.A. Conway Memorial Hospital for treatment. Mr. Harvey went to the hospital several more times and an MRI confirmed a shoulder injury.

To receive workers’ compensation benefits, an employee must show he suffered a personal injury by an accident arising out of and in the course of his employment. La. R.S. 23:1031(A). The employee shows an on the job injury by proving that before the accident he was in good health and his symptoms of the disabling condition appeared after the accident. See Dow v. United Parcel Service, 124 So.3d 36 (La. Ct. App. 2013). Additionally, the employee must bring the claim within two years of the accident.

June 25, 2017

Disability ERISA Insurance Claims Require Timely Production of Evidence

by Berniard Law Firm

accessibility-1538227-1-1024x768 Navigating an ERISA disability insurance claim through the courts can be a difficult task. The best ERISA disability isurance claim lawyers can help be your guide to ensure your rights are protected. The following case that arises out of the Federal Court system in New Orleans demonstrates the issues that can arise when you fail to timely provide the required documents to prove your case and your insurer denies your disability claim.

The case began when Angel Dix a two-year employee of Blue Cross Blue Shield Louisiana began experiencing back pain. Her doctors deemed her disabled for insurance purposes and she began receiving disability benefits under the company’s long-term disability program. Less than a month later, Dix was notified that she would no longer receive disability payments by her insurance company. The letter stated that the administrator found that the medical evidence “no longer supported a finding of disability.” The administrator considered medical opinions from treating and reviewing physicians, findings of an independent medical evaluation, and a vocational expert’s report. Dix appealed the decision.

During the initial review process, the administrator asked Dix whether she would like to submit additional documentation, and even gave Dix an extension on the deadline for submitting documentation. Dix failed to submit any additional information. The record was reviewed and the decision of the administrator was upheld. Then, approximately one year and three months after the administrator issued its final decision in her appeal, Dix submitted medical records, X-rays, MRIs, affidavits, and a favorable Social Security Administration decision. The affidavits were from two of her doctors stating that they do not recall speaking with the reviewing physician. The administrator declined to add the documents to the administrative record because Dix has exhausted her administrative remedies.

June 22, 2017

Woman Awarded No Damages For Slip and Fall Accident at Nail Salon in Baton Rouge

by Berniard Law Firm

When going to the nail salon, the last thing anyone thinks about is falling and getting seriously injured. Slip and fall accidents happen all the time, and it is important to gather as much evidence as possible and retain a good personal injury attorney in order to build the best possible case for yourself. The courts do not look favorably on those who make a claim and have very little evidence to back it up, as Pamela Burnett (“Ms. Burnett”) discovered when trying to win damages from the Lucky Nails salon.

On August 20, 2012, Ms. Burnett went to the Lucky Nails salon in Baton Rouge, Louisiana to get a standard nail polish change. All was going well at the salon, but as she was walking toward the pedicure chairs after choosing a polish color, she slipped and hit her head on the foot rest of one of the chairs. Ms. Burnett filed a lawsuit against the nail salon and its insurer, State Farm Insurance Company. Ms. Burnett alleged that the nail salon was negligent in maintaining the property and the floor of the salon. The defendants filed a motion for summary judgment because Ms. Burnett could not prove that there was a foreign substance or hazardous condition on the floor, that the nail salon created or had actual or constructive notice of the hazard, and that the salon failed to exercise reasonable care. The Trial Court found the evidence did not demonstrate that there was anything obvious on the floor. Ms. Burnett testified that the floor felt slippery, but was unable to identify what kind of substance was on the floor. The Trial Court granted the defendants’ motion for summary judgment on September 9, 2014, and dismissed the suit with prejudice. Ms. Burnett appealed this decision to the Louisiana First Circuit Court of Appeal.

On appeal, the First Circuit addressed Ms. Burnett’s argument that the Trial Court failed to look at the most critical evidence of the case. This evidence was a video recording of Ms. Burnett’s fall at the nail salon. The Trial Court stated that they were unable to see the video, however, they had plenty of still photographs taken directly from the video recording. The photographs clearly depicted the floor of the salon and they showed no substance or liquid on the floor. The First Circuit was able to view the video but found that it did not matter that the Trial Court was unable to view it because it did not present any new conclusions to reverse the summary judgment decision.

June 19, 2017

Louisiana Court Upholds Jury’s Finding of No Causation Despite Uncontroverted Expert Testimony

by Berniard Law Firm

trailerpark-1-1559039-1024x820 In any personal injury lawsuit, it is absolutely critical that the plaintiff documents his or her injuries and gather evidence in support of legal claims. In addition to establishing that the defendant breached a duty of care, personal injury plaintiffs must also prove – through medical testimony and documentation – that it was more probable than not that the accident at issue caused their injuries. See Maranto v. Goodyear Tire & Rubber Co., 650 So.2d 757 (La. 1995). This is particularly complicated when the plaintiff is already receiving care for preexisting injuries, as the law holds that defendants are not liable for damages caused by separate, independent, or intervening causes or injury. A recent case of the Louisiana First Circuit Court of Appeal is revealing. In this case, the Court of Appeal upheld a jury’s finding of no causation despite unconverted testimony by two expert witnesses.

On July 18, 2011, Wendy Richardson was returning to her home in Powers Trailer Park in Ascension Parish, Louisiana when her vehicle’s right rear tire fell into a hole. The hole developed suddenly in the gravel lining the entrance to the trailer park from Airline Highway. Ms. Richardson filed a lawsuit against the owner of the trailer park, Homewood Holdings, L.L.C. and its insurer, Scottsdale Insurance Company. Ms. Richardson argued that the hole caused her vehicle to unexpectedly stop, causing her serious injuries that necessitated undergoing spinal surgery.

At trial, Ms. Richardson presented the testimony of two treating physicians in addition to her own testimony. Ms. Richardson testified that she did not immediately seek medical attention for her injuries because she was already being administered a narcotic for serious injuries suffered in a domestic violence incident, and her contract prohibited her from receiving medication from any other source. She waited until her next scheduled appointment with her pain management specialist, Dr. Thomas Cockerham.

June 16, 2017

Company Loses Workers Compensation Denial in Ouachita, Louisiana when Plaintiff’s Medical Records Show Truth

by Berniard Law Firm

portal-2-1204680-1024x680 What happens when an accident happens at the workplace? Well, you would immediately head to the doctor. You would rely on your medical records to show the truth when you talk to your insurance company. However, what happens when the medical administration doesn’t agree that your medical records are demonstrative of the truth? Strengthening your case against corporations that attempt to veil the importance of your medical records requires the very best attorneys possible.

Plaintiff James Arness Thomas was a forklift operator for Marsala Beverage Company. In November 2010, Mr. Thomas fell off of his forklift when a truck driver pulled forward unexpectedly. The defendant, Marsala Beverage Company, never disputed that the accident occurred in the course of the plaintiff’s employment and that he was injured.

At the time of his injury, the plaintiff suffered damage to his neck, back, arms, and wrists. Mr. Thomas returned to work temporarily, and then stopped working. The Marsala Beverage admitted that he was temporarily disabled, and paid Mr. Thomas compensation and medical benefits. In the meantime, Mr. Thomas consulted a long line of specialists, including orthopedists and neurosurgeons.

June 15, 2017

When Is A Merchant Liable For A Patron Falling On Business Premises?

by Berniard Law Firm

grocery-store-1-1161348-1-1024x681 When a merchant sets up shop, he/she may become liable for any accident that occurs on the business’s premises. However, the merchant is not automatically at fault. Sometimes a person is injured and the merchant is not to blame, either because the plaintiff was careless or failed to satisfy his burden of proof. The law in Louisiana that governs a merchant’s liability for negligence also governs the plaintiff’s burden of proof when bringing a claim against a merchant. This law also provides a list of elements, which the plaintiff must prove in order to succeed in their claim. See La. R.S. 9:2800.6.

The first part of the law sets forth a merchant’s duties such as keeping their aisles, passageways, and floors free from hazardous conditions. The second part, which deals with an injured plaintiff bringing a negligence claim against a merchant, provides a test. Although this part is directed towards a claimant, it also puts merchants on notice as to their duties towards customers. In order for the plaintiff to prevail, the plaintiff must meet all elements of the test. A person who was lawfully on the merchant’s premises and sustained damages, injuries, or death must prove: (1) the condition which caused the plaintiff’s misfortune presented an unreasonable risk of harm and the risk must have been reasonably unforeseeable; (2) the merchant either created the condition or knew of the condition prior to the plaintiff’s injury; and (3) the merchant failed to exercise reasonable care. The absence of a merchant’s “clean up policy,” written or verbal, will not be enough for the plaintiff to prove a failure of reasonable care on the part of the merchant.

In this case, a store patron appealed the District Court’s judgment that allowed a grocery store to escape liability after the patron fell and injured himself in the store’s parking lot due to uneven pavement. The Plaintiff, Mr. Jerome Waddles, and a friend, Mr. Donald Robinson, arrived at Brookshire’s Grocery Store in Bossier City, LA. As the two walked towards the store, Waddles tripped on the uneven pavement and fell relatively hard. At trial, Mr. Waddles and Mr. Robinson described the area as a “crack and a hole.” Despite the damaged pavement being located in a heavily-trafficked area, the was no history of any prior incident.

June 13, 2017

Suspiciously Convenient Deposition Changes Ultimately Admitted in Slip and Fall Appeal in Louisiana Lawsuit

by Berniard Law Firm

shopping-cart-1550709-1024x768 When you suffer a personal injury such as a slip and fall and pursue a remedy in court, you must be able to support your allegations with sufficient evidence. After conducting initial discovery, a party may move for summary judgment and seek to have the case dismissed before it is ever heard by a trier of fact. When a party moves for summary judgment, it argues that the initial discovery shows that there are no issues of material fact to be decided by the trier of fact and that it is entitled to judgment as a matter of law. The opposing party, the party seeking to avoid having their case dismissed, must then present evidence to show that there are issues of material fact that should be heard at trial. In a recent case from the Louisiana Second Circuit Court of Appeal, a plaintiff conveniently “corrected” her deposition testimony attempting to defeat a motion for summary judgment. While the suspect changes were ultimately admitted, this was not sufficient to allow the case to go forward at trial.

In this case, Ginger Crawford slipped and fell on a wet floor in the dairy section of a grocery store owned by Brookshire Grocery Company in Springhill, Webster Parish, Louisiana. In response to a request by Brookshire, Ms. Crawford gave a deposition in which she swore to the court her version of the incident that happened in Brookshire’s Grocery. The deposition was certified by the court reporter. Brookshire then filed a motion for summary judgment, relying heavily on Ms. Crawford’s deposition. Brookshire’s motion argued that the case should be dismissed before trial because based on the initial discovery, it was evident that Ms. Crawford could satisfy her evidentiary burden under Louisiana’s Merchant Liability Statute. More specifically, Brookshire asserted that Ms. Crawford could not satisfy the “temporal” element of her claim.

In order to succeed in a slip and fall claim, a plaintiff must satisfy each and every element of Louisiana’s Merchant Liability Statute. See L.A. R.S. 9:2800.6. First, the condition that caused the fall must have presented an unreasonable risk of harm to the plaintiff and that risk of harm must have been reasonably foreseeable. Second, the merchant must have either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence. Third, the merchant must have failed to exercise reasonable care. In determining whether the merchant exercised reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient to prove failure to exercise reasonable care.

June 8, 2017

Plaintiff Gets Another Bite: Louisiana Court Overturns Denial of Plaintiff’s Evidence of Disability

by Berniard Law Firm

$torn-ligament-and-fractured-bone-bandages-1631721-1024x727$ Workers’ compensation is a form of insurance run by the state government which pays wage replacement and medical benefits to employees injured on the job. Temporary Total Disability Benefits or “TTD” require the employer or its workers’ compensation carrier to pay indemnity benefits roughly equal to two-thirds of the employee’s average weekly wages. But in order to benefit from TTD or other types of disability benefits, the employee must prove an inability to work and that the accident at issue arose out and in the course of his or her employment. A recent case out of the Louisiana Second Court of Appeal illustrates these requirements.

Ms. Maxwell was working as a caregiver for Care Solutions when she was attacked and severely beaten at Glenwood Regional Hospital in West Monroe. Ms. Maxwell was attending to a client at his home. On Care Solutions’ instructions, she took him to the hospital when he complained of chest pain and breathing problems. She was assaulted by an unknown assailant in the parking lot and sustained severe injuries to her face.

Ms. Maxwell was not able to work since January 22, 2014. She filed a disputed claim for workers’ compensation the following February because Care Solutions refused to provide her with workers’ compensation benefits. Care Solutions admitted that she had been injured while employed with them but disputed that the injury arose out of and in course of her employment.

June 7, 2017

Louisiana Court Rules Out-of-State Pharmacy Not Entitled to Reimbursement for Expense Claim

by Berniard Law Firm

Companies that do business in multiple states must consider that individual states have their own laws, which must be followed if a company plans to do business in that state. It can never hurt to do your due diligence before you begin operations and a good attorney can be a vital resource. Recently, a Louisiana appellate court overturned the decision of a Worker’s Compensation Judge (WCJ) who ordered an out-of-state pharmacy to receive over $7,000 in reimbursement for providing prescription drugs to a worker’s compensation claimant over a seven-month period in 2010.

The Louisiana Second Circuit Court of Appeal held that Injured Workers Pharmacy (“IWP) was not entitled to reimbursement for fulfilled prescriptions for Oxycodone, Tizanidine, and other medications. Louisiana state law only allows an employee to seek out of state treatment and services when they are unavailable in Louisiana or are provided at similar prices to those found locally.

The case’s origins lie in a slip and fall accident at a Sonic hamburger restaurant. Clenon Naron was performing job duties in the restaurant’s freezer when he injured his back in July 1999. Naron was issued a prescription card for medications relating to the workplace injury. The claim was eventually assigned to the Louisiana Insurance Guarantor’s Association (LIGA). Naron used the prescription card to refill his prescribed medications without incident until February of the following year.

May 31, 2017

Injured by Ambulance Driving to Emergency Call, Louisiana Court Reviews Emergency Call Driving Standards

by Berniard Law Firm

We’ve all been in the situation where we’re sitting at a red light or approaching an intersection and all of a sudden we hear sirens and see flashing lights. Everyone knows to stop and yield to the oncoming ambulance. Sometimes, however, a driver might not yield for whatever reason. This is exactly what happened in this case, which involves an EMT who was injured on the job while riding in an ambulance.

Two volunteer firefighters with the Washington Parish Fire Department (WPFD) responded to a call in Varnado, Louisiana. When they arrived at the scene, they found a man lying on the ground and proceeded to provide CPR until an ambulance arrived. Once the ambulance arrived, the two firefighters loaded the man into the back of the ambulance and continued to tend to him, as is customary. The Defendant in the case agreed to drive the truck.

While en route to the hospital, the ambulance was struck in the right rear by a blue Honda at the intersection of Highway 21 and La. Highway 10. The ambulance slid and collided into another vehicle. The Plaintiff, who had been sitting in the back of the ambulance without a seatbelt, sustained injuries from being thrown around due to the force of the crash.