Articles Posted in Workers Compensation

portal-2-1204680-1024x680What 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.

torn-ligament-and-fractured-bone-bandages-1631721-1024x727Workers’ 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.

pharmacy-1-1509263-1024x485Companies 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.

teamwork-1-1236629-1024x743Borrowed employees are workers assigned by their employer to work for companies borrowing their services on a short-term basis. Normally, employees hurt on the job may recover money in addition to worker’s compensation benefits from their employing companies. As the following case from the Louisiana First Circuit Court of Appeal demonstrates, borrowed employees can only recover worker’s compensation against companies that borrow their services.

A-Port is a shore base facility that provides crane, forklift, storage, and other services located in Grand Isle, Louisiana. At times, A-Port needs additional personnel to complete these services.

On May 23, 2011, USA General hired Willie F. Walton and assigned him to provide labor services in the Lafourche/Terrebonne Parish areas. On June 20, 2012, A-Port accepted an agreement with Original USA General Labor, LLC (USA General), where USA General agreed to provide riggers to A-Port. In the fall of 2012, USA General assigned Walton to the A-Port facility as a rigger. Walton worked at A-Port from October 20, 2012, until October 31, 2012.

workers-1542652-1024x768You may be entitled to compensation for any injury that occurs on the job. The extent of compensation depends on the extent of your injuries. See La. R.S. 23:1221. The employer and the employee often disagree on the amount of compensation. When this happens, a court of law often becomes the forum for resolution. Such was the case with an employee in Louisiana named Ta’Shanta Dupard.

In November 2013, a hammer fell on Ms. Dupard and struck her in the knee while she was working at MMR Construction. The blow resulted in a knee contusion and laceration, which left a permanent scar on her knee. Dupard filed a claim against her employer claiming that she was entitled to worker’s compensation benefits due to the serious and permanent disfigurement to her knee. The parties agreed that Dupard was entitled to compensation for her injuries, but disagreed as to exactly how much.

Ms. Dupard had a weekly salary of $1,058.62 at the time of her injury. According to Louisiana Worker’s Compensation laws, this yielded a maximum compensation rate of $619 per week. MMR believed that five weeks’ compensation was adequate for the scar, whereas Dupard’s attorneys claimed 25 weeks was the proper benchmark because the scar was a permanent disfigurement.

money-4-1238890-768x1024In workers compensation cases, the awarded money benefits can be offset in court to account for other benefits being received by the employee for the same injury like social security disability benefits. If the employer seeks to have the workers compensation benefits offset to account for social security disability they will need to file a “Motion for Recognition of Right to Social Security Offset” pursuant to La. R.S. 23:1225(A). The Louisiana First Circuit Court of Appeal was recently faced not only with a motion to offset due to social security disability but whether or not to include attorneys fees in the pre-offset amount or not. These particular issues arose out of a lawsuit brought by Stephanie Nitcher against Northshore Regional Medical Center (Northshore) for compensation for temporary or permanent total disability benefits, medical treatment and attorney fees.

On October 30, 2012, Ms. Nitcher was awarded workers compensation benefits including $86,871.84 in past due indemnity, $13,181.13 in interest and $550.47 in appeals costs all from Northshore. In addition, Northshore was ordered to pay Ms. Nitcher permanent total disability benefits in the amount of $329.96 per week from the date of the judgment forward. Ms. Nitcher in addition to the workers compensation benefits being paid by Northshore was receiving social security disability benefits pursuant to 42 U.S.C. § 423. On December 19, 2013, Northshore filed its motion for recognition of the offset of the social security disability benefits, which serves the purpose to allow an employer to offset the amount of money it’s paying out when the employee is essentially receiving payment for the same disabilities from both state and federal entities. The offset sought by Northshore would reduce their weekly payments to Ms. Nitcher by $115.52.  Prior to the hearing on Northshore’s motion, Ms. Nitcher filed to have her attorney’s fees taken out of her weekly workers compensation benefits, resulting in $65.81 coming out of the previously awarded $329.96. Northshore’s offset calculation did not deduct the $65.81 prior to calculating the $115.52 offset which resulted in their motion being denied and the judge ordering that Northshore’s offset amount be $49.71 a week lowering the original $329.96 to $279.35.

On appeal Northshore contends that the judge erred in denying the offset amount of $115.52, claiming that pursuant to La. R.S. 23:1225(A) the attorney’s fees did not need to be deducted prior to the offset calculation. The First Circuit Court of Appeal in determining the social security offset first looked to La. R.S. 23:1225(A) which states that the benefits provided for injuries resulting in permanent total disability will be reduced when the person is also receiving benefits under 42U.S.C. Chapter 7 (42 U.S.C. 423) which applies in this case since Ms. Nitcher is receiving benefits both from workers compensation as well as social security disability. From here the appeals court went on to determine how the offset should actually be calculated, the specific issue here being whether or not to calculate pre or post attorney fee deduction. The prior judgment approved the attorney fees deduction from the calculation referring to statutory attorneys fees which do allow for deduction prior to offset calculations, the fees at issue are however not statutory attorneys fees. The attorney’s fees, in this case, are limited by statute but not authorized by statute which would make them statutory attorney fees. The court went further to determine that since there is no Louisiana law that requires an employer to pay attorneys fees in connection with a workers compensation claim, that the only way to do so would be if it were a punitive order. That is however not the case here and since Ms. Nitcher does owe the attorneys fees it was properly deducted from her disability benefits, but Northshore was improperly made responsible for the fees by including the deduction in their offset assessment.

welder-1241607-1024x683The Louisiana Workers’ Compensation Act aims to protect employees who suffer on-the-job injuries. But in order to benefit from the act, plaintiffs have the burden of proving their claims. This means providing clear and convincing documentation of your injuries and work limitations. In a recent case, the Louisiana Second Circuit Court of Appeal found that the plaintiff failed in meeting this burden of proof.

Celia Sanchez was a card dealer at the Horseshoe Casino in Bossier City Louisiana which is owned by Caesar’s. She injured her back and hip in 2011 when she slipped and fell on a metal ramp at the Horseshoe Casino. In September 2013, Ms. Sanchez filed a disputed claim for compensation against her employer seeking indemnity benefits, medical treatment, penalties and attorney fees.

Caesar’s filed a request with the medical director of the Workers’ Compensation Administration that Ms. Sanchez undergo an independent medical examination (“IME”) with Dr. Robert Holladay. Ms. Sanchez opposed the request for IME and requested that the Workers’ Compensation Judge (“WCJ”) find that no IME was warranted. In the alternative, she requested that the WCJ appoint a physician trained who had fellowship training in spine surgery and actively treats spine patients. Dr. Holladay lacked both of these qualifications.

coloured-peppers-1319797-1024x768Appellate courts are reluctant to reverse a trial court’s judgment based on the argument the trial court failed to properly evaluate the evidence. Deference to a lower court is the norm. A recent decision by the Louisiana First Circuit Court of Appeal in DeBlanc v. Albertson’s highlights the principle of judicial deference.

The case’s origins lie in a workers’ compensation claim. Sidney DeBlanc III worked at Albertson’s as a produce clerk. On December 28, 2009, DeBlanc allegedly injured his back while he lifted a box of apples to place them on a cart. He then took a break, finished his shift, and went home but failed to mention the accident to a supervisor. None of his fellow employees witnessed the incident. His mother notified the store later. Two days after the accident, DeBlanc visited his personal physician, received a referral to a specialist, and he later filed a claim for workers’ compensation.

In March 2012, Albertson’s disputed the claim with the Office of Workers’ Compensation. The supermarket challenged whether DeBlanc injured his back on the job and if the specialist’s surgery recommendation was related to his employment with them. The case went to trial, and the Workers’ Compensation Judge (WCJ) found DeBlanc proved his injury and was entitled to disability benefits and the recommended surgery. Albertsons then appealed, based on the argument the WCJ’s judgment was not supported by the evidence.

frog-eye-1-1398595-1-1024x768“An eye for an eye will only make the world blind,” said Mahatma Gandhi. In a recent case, the Ritz-Carlton Hotel Company, LLC claimed that one of its employees filed a lawsuit against it as retaliation for her dismissal from the company. The Louisiana Fifth Circuit Court of Appeal was faced with the question of whether that employee actually suffered a compensable work-related injury or whether her claims were suspect.

Phyllis Summers was a hairdresser, nail technician, and makeup artist at the Ritz. On March 2, 2013, she arrived early to perform a pedicure for a guest. But her day took a turn for the worse as she slipped and fell from water leaking from one of the pedicure tubs. The Ritz suspended her employment on May 3, 2013, and later terminated her on May 16, 2013, for repeated violations of Hotel policy. Ms. Summers then filed a Workers Compensation Claim (“WCC”) on June 7, 2013, seeking compensation for a work-related injury. The Workers’ Compensation Judge (“WCJ”) granted her wage and medical benefits, along with penalties and attorney fees. The Ritz and Marriot Claims Service (“MCS”) appealed, arguing that Ms. Summers filed the lawsuit as an act of vengeance.

In reviewing a WCJ’s decision, the Court of Appeal may only overturn conclusions if a close examination of the facts in the entire court record shows that the WCJ was “clearly wrong.” See Dean v. Southmark Constr., 879 So.2d 112 (La. 2004).  In reviewing this case, the Fifth Circuit assessed whether (1) Ms. Summers’ accident was job-related; (2) her accident resulted in injury, or resulted in making an injury she already had worse; (3) she was entitled to temporary total disability (“TTD”); (4) she was entitled to supplemental earnings benefits (“SEBs”); (5) the injury warranted medical, medication and travel expenses; and (6) she had a right to penalties and attorney fees.

working-1229720-1024x783Workers’ compensation disputes often boil down to the terms of a written contract where each party asserts their own interpretation of the agreement and lets the court decide. The case below is no different as it pertains to a “third-party beneficiary,” which essentially is a party not expressly contained in the agreement, but is no less a party to the contract.

Mr. Scarberry was an employee of the Oklahoma Gas and Electric Company (OGE) and was helping Entergy Gulf States Louisiana, LLC (Entergy) restore power to residences and business in the midwest after hurricane Gustav caused damage to the area.

OGE and Entergy were members of a larger nonprofit trade association, Southeastern Electrical Exchange (SEE), and the relationship between members of SEE was governed by an Agreement, which is the backdrop of the dispute here between Mr. Scarberry, OGE, and Entergy.