Articles Posted in Workers Compensation

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.

anvil-and-hammer-1176425-1024x681An employee injured during the course of employment is generally entitled to workers’ compensation benefits. But can the actions of the employee in their free time affect the continuation of benefits? That was the case for a Parish of Lafayette employee who decided to perform side jobs involving heavy manual labor while collecting workers’ compensation benefits.

Donovan Meche was employed by Supreme Service & Specialty Company. Mr. Meche injured his mid- and lower back in November 2012 while swinging a sledge hammer. Mr. Meche saw several doctors to treat his back pain. The first orthopedic surgeon Mr. Meche saw recommended that he not work and undergo physical therapy. The next orthopedic surgeon, Dr. Heard, prescribed medication and physical therapy. Dr. Heard placed exact physical limitations which limited Mr. Meche to lifting ten pounds and sitting and standing no more than twenty minutes.

Supreme later obtained an independent medical examination of Mr. Meche which found that Mr. Meche was not able to return to his former job, but he could perform “sedentary or light duty.” Supreme offered Mr. Meche light-duty work and terminated Mr. Meche’s benefits.  Mr. Meche accepted the light-duty work, but only worked six hours over three painful days. Mr. Meche did not return to work for Supreme, but he did subsequently perform heavy manual labor working for his neighbor erecting an awning at his house and assisting a flooring contractor. Dr. Heard was not informed of these activities.

wood-1057878-1024x686
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.  

field-1-1381631-1024x641Imagine you are in a car accident, one that is so severe it results in you being airlifted to a hospital.  Recovery time is extensive and your mental capacities are foggy at a minimum.  While hospital bound, someone other than yourself files a claim for your workers’ compensation benefits.  Due to the hospital stay, you receive no notice of the claim or court hearings yet a decision is made denying benefits.  The real kicker? All this occurs in a state where you do not live. Sound a tad unjust? Yet this recently happened to a Kaplan, Louisiana man.

Steve Richard, a Louisiana resident, was injured in an automobile accident while driving to a work location in Mountrail, North Dakota.  His injuries required him to be airlifted to a hospital in Minnesota where he spent about a month recovering.   While in the hospital, Mr. Richard’s employer brought a claim workers’ compensation benefits on behalf of Mr. Richard before the North Dakota Workforce Safety & Insurance (“N.D. Workforce”): the administrative body that regulates workers’ compensation claims in North Dakota.   Mr. Richard contended he did not bring the action, never had notice of the decision, and never submitted documents requested by the N.D. Workforce. Moreover, Mr. Richard never received any correspondence on the matter because it was all mailed to his Kaplan, Louisiana address while he was recovering in the Minnesota hospital.  The N.D. Workforce denied benefits finding that the accident was caused by Mr. Richard’s drug and alcohol use and therefore not within the scope of his employment.   Mr. Richard did not appeal this decision presumably because he never brought it in the first place.

A few months later, Mr. Richard did file a claim for workers’ compensation benefits in Louisiana.   His employer Quality Construction & Production, L.L.C, (“Quality Construction”) and their insurance company filed an exception to the claim arguing that the claim was barred by the doctrine of res judicata because the claim had already been decided by another court.  The Louisiana Office of Workers’ Compensation Judge (WCJ) denied Quality Construction’s exception and the case was appealed to the Louisiana Third Circuit Court of Appeal.    

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.

arabic-pharmacy-1549734-768x1024When you get hurt on the job, it is common to seek workers’ compensation benefits to help with the costs of your injury.  However, the employer will likely at some point seek to diminish or cease payment altogether. In a recent case out of the Parish of Calcasieu, we learn just how far an employer must go in helping a former employee find a replacement job before reducing benefits.

Kenneth Clark was working as an assistant manager at Walgreens in Moss Bluff when he hurt his back.  A visit to Dr. Erich Wolf and an MRI revealed three herniated disks. After undergoing a discectomy and epidural steroid injections, Dr. Wolf released Mr. Clark to work eight hours per day at light to minimal-medium duty. Later, Mr. Clark was determined to have reached maximum medical improvement.

Walgreens voluntarily paid Mr. Clark Temporary Total Disability (TTD) benefits equaling his average weekly wage of $727.37. Once Mr. Clark reached maximum medical improvement, Walgreens changed Mr. Clark’s TTD benefits to Supplemental Earnings Benefits (SEB) to a weekly rate of $244.89 based on Mr. Clark’s wage earning capacity of $360.00. Mr. Clark then challenged the reduction of his benefits and sought penalties and attorney fees.

compensation-1444901-1-1024x798It’s always bad when you get injured. But it is even worse when you have no insurance coverage for that injury. Recently, a St. Tammany Parish man experienced both incidents when he was injured on the job and realized that his employers were not covered by workers’ compensation insurance.

After Edward Jones suffered an injury while on the job, he sued his employer Clesi Foundations, L.L.C. for workers’ compensation benefits. Workers’ compensation pays for an employee’s medical expenses and lost wages when an employee is injured on the job. At trial, the court awarded Mr. Jones benefits, penalties, and attorney fees because Clesi Foundations L.L.C. failed to defend against Mr. Jones’s claim. After receiving a judgment against Clesi Foundations L.L.C., Mr. Jones discovered that his employer’s workers’ compensation coverage was underwritten by American Interstate Insurance Company (“American Interstate”). When a workers’ compensation policy is underwritten, that means another company, in this case, American Interstate, guarantees the payment of the damages assessed in a workers’ compensation case. Mr. Jones then filed a case against American Interstate for the amount of damages the trial court assessed against Clesi Foundations L.L.C.

At trial, Mr. Jones filed a motion for summary judgment. Summary judgment is a legal proceeding where both parties in a lawsuit ask the court to decide the case prior to it going to trial. In his motion, Mr. Jones alleged that American Interstate provided workers’ compensation insurance coverage to Clesi Foundations during the time he was injured. American Interstate claimed that it canceled its coverage of Clesi Foundation L.L.C. and provided notice of cancellation fifteen days prior to Mr. Jones’s injury. The Workers’ Compensation Judge (“WCJ”) found in favor of American Interstate.

oil-refinery-1240489-1024x599Often, the facts of a lawsuit are unclear. One strategy that lawyers often use to prove their version of events is to use an expert witness to corroborate their side’s story. Expert witnesses are individuals who possess knowledge in a field or area that the average person knows little to nothing about. Frequently, both sides in a lawsuit end up utilizing experts who often times have differing opinions about the facts surrounding the lawsuit. But how does a judge or jury determine which expert is correct? Recently, the Fifth Circuit Court of Appeal for the State of Louisiana addressed these questions in a workers’ compensation case.

David Allensworth worked for two different companies, Gulf South Systems (“GSS”) and Grand Isle Shipyard (“GIS”) as a cleaner, cleaning storage tanks containing gasoline, crude oil, diesel fuel, and condensate. One day, Mr. Allensworth visited an urgent care center with complaints of abdominal pain and weight loss. A CT scan revealed a large abdominal mass which was later diagnosed as non-Hodgkin’s lymphoma. A cause of non-Hodgkin’s lymphoma is toxic exposure to benzene with is contained in crude oil and gasoline. Mr. Allensworth filed a lawsuit against GSS and GIS for workers’ compensation benefits claiming that his exposure to benzene while working for the companies caused his non-Hodgkin’s lymphoma. Workers’ compensation pays for an employee’s medical expenses and lost wages when an employee is injured on the job.

At trial, Mr. Allensworth submitted the sworn statement of Dr. Jack Saux as an expert oncologist. Dr. Saux concluded that Mr. Allensworth’s non-Hodgkin’s lymphoma was caused by toxic exposure to benzene, which most likely happened when Mr. Allensworth cleaned his employers’ storage tanks. GIS and GSS countered with its own medical expert, who testified that though there is some association between benzene and lymphoma, there is no evidence that benzene exposure caused Mr. Allensworth’s non-Hodgkin’s lymphoma. The Workers’ Compensation Judge (“WCJ”) concluded that Mr. Allensworth did not prove that his disease was a result of his employment. In doing so, the WCJ noted that Dr. Saux based his opinion on Mr. Allensworth’s statement in which Mr. Allensworth claimed he only wore a regular shirt and overalls while cleaning the tank. It was based only on this statement, and not on an examination, that Dr. Saux concluded that exposure to benzene from Mr. Allensworth’s job likely caused Mr. Allensworth’s disease. The WCJ also noted that the testimony of GIS and GSS’s expert stated that Mr. Allensworth did wear protective equipment when cleaning the tanks.

billiard-2-1434095-1024x683When an employee is injured in the course of his or her job, then the employee will receive wage replacement and medical benefits in the form of workers’ compensation. Workers’ compensation takes the place of a lawsuit an employee can bring when he or she is injured on the job by someone’s negligence. Because employers are responsible for providing a safe work environment, it stands to reason that employers are responsible when that environment is unsafe. While workers’ compensation provides a necessary service to injured workers, there are always those who would try to take advantage of the system. This struggle to try to provide for those who are legitimately injured while at work and deny claims for those who try to defraud the system gives rise to a complex body of law. One reoccurring issue that often surfaces in workers’ compensation cases is whether an employee is injured while on the job. Recently, the Fifth Circuit Court of Appeal examined this issue when determining whether an employee for a pool table installing company injured his back while on the job.

Nunzio Galiano worked for Lucky Coin Machine Company (Lucky Coin) as a pool table installer. Mr. Galiano was regularly required to lift and move large objects during the course of his duties, including 200-pound slates for pool tables. In August of 2013, Mr. Galiano began to experience pain in his lower back. He did not tell his employer about the pain until he could no longer stand it. Mr. Galiano hesitated to inform his employer of the extent of his back pain because he feared being fired if he told the whole truth. When Mr. Galiano finally went to a doctor, the doctor told him that the pain was not caused by kidney issues, which Mr. Galiano had assumed to be the cause prior to the doctor visit, but rather sacroiliac (SI) joint dysfunction. When told that Mr. Galiano’s work environment involved heavy lifting, the doctor indicated that there may be a connection between that and the bad back. Mr. Galiano then filed for and was awarded, workers’ compensation benefits. Mr. Galiano’s employer, Lucky Coin, appealed this decision arguing that Mr. Galiano’s injury was not caused while he was on the job.

Louisiana law requires that an employee prove 1) that there is an injury, 2) arising out of the employment, 3) caused by an accident, and 4) that the injury is more than simply a gradual deterioration or progressive degeneration. La. R.S. 23:1031 (2016). An employee bringing a workers’ compensation claim is only required to prove the injury more likely than not occurred while the employee was on the job. Marange v. Custom Metal Fabricators, Inc., 93 So.3d 1253, 1257 (La. 2012).