Articles Posted in Workers Compensation

supermarket-kart-1-1413356-1024x683In any lawsuit, the party seeking relief must carry its burden by proving every element of the claim or claims which it has raised. By doing so, the party satisfies to the court that it is entitled to the relief which it seeks. One such element pivotal to all claims for workers’ compensation benefits is that the alleged injury arose out of and during employment.  Proving a work-related injury solely on the injured person’s testimony can, however, doom a workers’ compensation case. This is a lesson that workers’ compensation claimant Isaac Garcia, who worked for Rouses Market in Metairie, Louisiana, learned the hard way.

In early November of 2013, Mr. Garcia filed a claim for failure to pay benefits, naming both Rouses Enterprises, Inc., as well as its insurer, Strategic Comp, for a work-related injury he allegedly sustained while working for Rouses Market in Metairie. Mr. Garcia claimed that on September 15, 2013, while moving a box during work he felt a sharp and immediate pain, beginning in his wrist and right thigh, and radiating to his lower back. The incident was not witnessed by anyone other than Mr. Garcia himself. Mr. Garcia returned to work for a brief period, but left work shortly after the incident.  Mr. Garcia failed to inform his supervisor of the injury out of fear of termination. This was in direct violation of Rouses’ policy which required all on the job injuries to be reported immediately.

In the days that followed, Mr. Garcia spoke with his supervisor over the phone but again failed to mention the injury sustained on September 15. On September 20, the day before Mr. Garcia’s next shift, the pain had escalated to the point that Mr. Garcia considered seeking medical attention at the emergency room, but decided to consult an attorney first. The attorney referred Mr. Garcia to a doctor who found Mr. Garcia’s condition consistent with lumbar disc displacement. Mr. Garcia saw a second doctor in relation to medication for pain management. Finally, on September 24, 2013, more than a week after Mr. Garcia’s injury and subsequent to seeking medical treatment, Mr. Garcia returned to Rouses and filled out an accident report in relation to the September 15 injury. Yet Mr. Garcia failed to disclose neck and back injuries he sustained approximately a year and a half prior to being hired by Rouses. Ultimately, Rouses and Strategic Comp denied Mr. Garcia any form of workers’ compensation benefits. The claim was submitted to the Workers’ Compensation Judge (“WCJ”) who found Mr. Garcia was not entitled to benefits, a decision which was later upheld by the Louisiana Fifth Circuit Court of Appeal.

big-toys-4-big-boys-1435926-1024x744Workers’ compensation pays for an employee’s medical expenses and lost wages when an employee is injured on the job. But what happens when an employee is injured while performing his or her job in a manner not approved of by the employer? Recently, a Court of Appeal for the State of Louisiana addressed this issue in a case involving a man from St. Landry Parish.

Herbert Marshall, an employee for Courvelle Toyota, injured his back picking up an automobile transmission during work. Mr. Marshall was directed to take a truck with a liftgate, pick up a transmission from a repair shop, and deliver that transmission back to the dealership. He was instructed to take the lift gate truck because the transmission was over four hundred pounds. Mr. Marshall took a standard van instead, claiming that the liftgate was not working on the truck. When Mr. Marshall arrived at the repair shop, he enlisted the help of a repair shop worker to lift the transmission into the van. It was during this lifting where Mr. Marshall felt a “pop” in his back. When he returned to the dealership, Mr. Marshall was helped by another employee to unload the transmission. Mr. Marshall made no mention of his back pain to anyone that day.

Mr. Marshall reported the accident to his boss days after the injury. After reporting the accident, Mr. Marshall saw several doctors and underwent several different treatments. Mr. Marshall also received multiple drug tests. On two drug tests, he tested positive for cocaine. Mr. Marshall claimed that these tests were a false positive and that the test actually picked up his use of lidocaine for his tooth pain. On subsequent tests, Mr. Marshall tested negative to having cocaine in his system. Mr. Marshall requested workers’ compensation benefits from Courvelle Toyota to pay for his medical bills and lost wages. Courvelle Toyota denied those requests citing the fact that Mr. Marshall did not use the lift gate truck as instructed by Courvell Toyota. Mr. Marshall then filed a disputed claim for benefits with the Office of Workers’ Compensation, where he sought wage benefits, medical treatment, penalties, and attorney fees.

thick-metal-welding-mask-for-protecting-the-eyes-1632419-1024x784Under Louisiana law, an employee who is injured while on the job is entitled to “vocational rehabilitation services” (services that help an individual overcome his or her own physical or mental disability in order for that individual to return to work) provided by a vocational rehabilitation counselor. La. R.S. 23:1226 (2016). While an injured employee is entitled to a vocational rehabilitation counselor, is the employee able to dictate his or her own rules and requirements that the vocational rehabilitation counselor must follow? And if an employee is unhappy with the performance of his or her vocational rehabilitation counselor, then what can he or she do to remove that person?

Ellis Hargrave was injured while working for the Louisiana Department of Transportation and Development (“DOTD”). After the injury, DOTD began providing vocational rehabilitation services to Mr. Hargrave. After juggling multiple vocational rehabilitation counselors, DOTD finally settled on assigning Elier Diaz to Mr. Hargrave. Before their first meeting, Mr. Hargrave’s attorney sent a letter containing ten conditions that Mr. Diaz had to agree to before Mr. Hargrave would allow counseling services. The purpose of these conditions was to make Mr. Diaz put Mr. Hargrave’s interests over the interests of DOTD. Mr. Diaz declined to agree with the ten conditions. Mr. Diaz sent a letter to Mr. Hargrave, explaining that he will uphold the standards of the applicable law but declined to agree to any of the extra standards or conditions demanded. Even though the parties disagreed about the ten conditions, an initial evaluation meeting took place with Mr. Diaz, Mr. Hargrave, and Mr. Hargrave’s attorney. The disagreement over the ten conditions eventually led to litigation. This issue eventually ended up at the Supreme Court of Louisiana where it held that nothing in Louisiana law required that a rehabilitation counselor must agree to certain conditions prior to providing vocational rehabilitation services. Hargrave v. State, 100 So.3d 786, 793 (La. 2012).

While the long litigation process over one issue ended, another one soon began. Mr. Hargrave filed another claim with the Workers’ Compensation Judge (“WCJ”) asking the WCJ to remove Mr. Diaz as vocational rehabilitation counselor because Mr. Diaz violated Louisiana law. At trial, Mr. Hargrave asserted that Mr. Diaz violated Louisiana law when he met with DOTD without allowing Mr. Hargrave or his counsel to attend and that Mr. Diaz violated Louisiana law when he stated that Mr. Hargrave and his attorney agreed to the meeting. The WCJ disagreed, holding that Mr. Diaz did not violate Louisiana law. Mr. Hargrave appealed.

concrete-tiles-1140575-575x1024Be it alleged abuses in the welfare system or lying on their tax return, individuals abusing the system has been a hot button issue for the past couple of years. But what happens when someone gets caught? How does the law handle the people who abuse the system? Recently, a Louisiana Court of Appeal held that concealing previous injuries resulted in a forfeiture of workers’ compensation benefits (insurance that pays wages and medical costs for an injury occurring while at work) and the payment of restitution (compensation ordered by the court for restoration of money to its rightful owner) for a Saint Martinville concrete finishing business owner.

Darrell Wiltz is the sole owner of Wallace Wiltz Concrete, Inc. He worked as both the manager of the business and as one of the laborers for the company. On October 21, 2009, Mr. Wiltz was lifting a tool used in the concrete finishing business when he allegedly injured his lower back. He filed a claim with LUBA, the workers’ compensation insurance provider for Wallace Wiltz Concrete. Initially, LUBA only paid for some of Mr. Wiltz’s medical treatment and did not pay any wage benefits. But after Mr. Wiltz inquired with LUBA why all of his medical treatment and wage benefits were not being paid, LUBA sent an adjuster to record a statement from Mr. Wiltz. In the statement to the adjuster, Mr. Wiltz admitted to previously having one minor back injury. He also denied being in any vehicle accidents. Based on these statements, LUBA began approving all the medical treatment benefits and started paying Mr. Wiltz total temporary disability benefits.

On April 6, 2010, LUBA performed a claim index search on Mr. Wiltz which revealed that Mr. Wiltz had been involved in at least two vehicle accidents. LUBA then obtained Mr. Wiltz medical records which indicated that Mr. Wiltz had undergone at least three MRI’s of his lower back due to complaints of pain. The medical records also indicated that Mr. Wiltz had various disc issues such as bulges or herniations in his lower back and one medical provider diagnosed him with lumbar disc disease.

handicap-parking-1444248-1024x606Accidents in the workplace can rob one of the ability to work or even do simple daily tasks. The system of workers’ compensation exists to ensure that injured workers are compensated for their injuries. However, certain rules exist to ensure money is distributed efficiently.  In a recent case out of Opelousas, the Louisiana Third Circuit Court of Appeal confronted the rules governing permanent or temporary disability status.   

Donald Stelly was an employee of Fresenius Medical Care NA (“Fresenius”). In September of 2005, Mr. Stelly fell from a ladder at work and was injured. At the time of his injury, Mr. Stelly was 67 years old and had suffered other medical conditions including heart disease and diabetes. As a result of his injury, Fresenius paid his medical expenses and workers’ compensation benefits.   In 2014, Mr. Stelly filed a claim against Fresenius disputing his disability status.  Mr. Stelly had a “Functional Capacity Evaluation” (FCE) test performed on him in 2009.  An FCE is a schedule of tests and evaluations to assess one’s abilities, especially in the workplace.  Based on the FCE doctors opined that he was totally disabled and would not be able to return to work.  Fresenius petitioned for another FCE to be performed and Mr. Stelly petitioned for a finding of permanent disability as shown by the earlier tests.

After a trial before the Office of Workers’ Compensation for the Parish of St. Landry, the Worker’s Compensation Judge (WCJ) found in favor of Fresenius, ruling that Mr. Stelly was only temporarily disabled, finding that there was not enough evidence to find him to be permanently disabled.  Mr. Stelly appealed his case to the Third Circuit.

vertebrea-3-1559248-1024x768“My neck, my back, my neck and my back” is a cliche that has been used in television shows and movies when someone gets hurt in an accident and likely tends to file a lawsuit. Although Caddo Parish, Louisiana woman, Ruth Toliver, may not have used the exact phrase, she did fall on the job and filed for workers’ compensation benefits. After receiving a workers’ compensation settlement, she filed a lawsuit to recover for additional injuries.  But whether Ms. Toliver could recover twice proved another matter.   

While on the job working for Entergy Services, Inc (ESI), Ruth Toliver injured her neck and left shoulder when she fell from a three-foot high stepladder and hit the floor. She received workers’ compensation benefits shortly after the incident and continued to receive the benefits until they were terminated close to the end of 2010. Mrs. Toliver disputed the termination of benefits with the Office of Workers’ Compensation in January of 2011. Mrs. Toliver and ESI agreed to settle the matter for $58,909.93 that would be paid to Mrs. Toliver, plus all the related medical bills that she incurred prior to the date of settlement. The agreement provided that $43,909.93 of the settlement would be earmarked for a Medicare account for future medical bills. The total amount of workers’ compensation benefits that ESI paid Mrs. Toliver was $397,763.75.

The agreement released ESI from any and all liability for the work accident. About two years after signing the settlement agreement, Mrs. Toliver filed a lawsuit with the Louisiana Trial Court, claiming that in addition to her initial injuries, she also injured her head, right shoulder, and back in the fall. ESI objected to Mrs. Toliver’s lawsuit based on the settlement agreement. ESI argued that she was barred by claim preclusion because the settlement agreement was signed into a final order of approval and dismissal.  The Trial Court agreed and Mrs. Toliver appealed the decision.

ear-defenders-1415305-1024x679What are your legal options when you experience job-related hearing loss? Are you limited to benefits under workers’ compensation laws or can you file a lawsuit for possibly a considerable monetary amount?  That was the essential question put forth to the Supreme Court of Louisiana in a recent case out of West Monroe.

Six current and former employees of Graphic Packaging International, Inc.’s (“GPI”) West Monroe facility filed various lawsuits against GPI.  In their lawsuits, the employees claimed that GPI failed to provide its employees with a safe workplace, resulting in the employees allegedly losing their hearing. The employees alleged that over their years of employment, their constant exposure to “hazardous levels of industrial noise” ultimately caused irreparable damage. GPI argued that any hearing loss that may have occurred would fall within the purview of Louisiana’s Workers’ Compensation Act (“LWCA”) which would preclude the lawsuit per La. R.S. 23:1031.1.   

The District Court found for the employees and awarded damages. The Louisiana Second Circuit Court of Appeal, however, reversed the District Court finding the hearing loss to be an “occupational disease” under the LWCA.  The question before the Louisiana Supreme Court was whether this was a workplace incident, which would result in workers’ compensation benefits under the LWCA, or whether it was a tort action that could potentially result in uncapped damages if liability is found.

worker-1-week-1501458-1024x681An accident at the workplace is never fun, not for the employer, and certainly not for the employee.  In addition to the difficulty of the injury itself, determining who pays for the medical treatment is often in dispute.  Whether there is enough evidence to show that the accident actually caused the injury helps a judge decide if the employer is required to pay.  This connection may also play into whether the payment will be limited to a $750 cap.

Ms. Mangiaracina, an employee with Avis Budget Group, injured her shoulder, back, and thumb, at her workplace when her office chair fell forward.  Ms. Mangiaracina had a pre-existing injury to her left shoulder for which she was receiving medical treatment.  This injury did not affect her ability to work, and after the accident, her doctors found that her shoulder worsened.  She had surgery a few months later.  An adjuster for Avis’ insurer determined that all of Ms. Mangiaracina injuries were considered pre-existing and did not make any payments for the medical expenses.   Avis’ insurer responded to requests for payment by stating the need for the surgery was not related to the workers’ compensation claim.

As a result, Ms. Mangiaracina filed a disputed claim for compensation.  The Office of Workers’ Compensation ruled for Ms. Mangiaracina and awarded her temporary total disability benefits on a weekly basis against Avis. The workers’ compensation judge decided that Ms. Mangiaracina did, in fact, sustain a work-related injury, that her pre-existing injury was actually aggravated by the accident and that the surgery was reasonable.  The judge determined that she was disabled for three months after the surgery, and as a result awarded her all the related medical and transportation expenses against Avis.

pipes-1446925-1024x683In 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.

spinal-tap-1197804-1-768x1024Justice is often not a sprint through the courts, but a long carefully navigated journey. This is because the law is not always black and white and standards of proof may make it difficult for a Plaintiff to prove his or her case. In a lawsuit arising out of Parish of Rapides, for example, Cecilia Rachal had to navigate four separate issues through the courts to find compensation for a simple fall at work.

Alexandria’s Sam’s Club was undergoing renovations when one of its employees, Ms. Rachal, fell between a filing cabinet and a co-worker while on the job. After the accident, Ms. Rachal experienced pain in her head, neck, back, right hand and ankles. After seeing various doctors and filing a claim for workers compensation benefits, Ms. Rachal was successful in obtaining temporary disability benefits.

Under the advisement of her attorney, Ms. Rachal visited another doctor, Dr. Clark, almost a month after her accident due to the possibility of symptoms arising after the initial trauma of her injury. Ms. Rachal received a lumbar MRI scan, which helped Dr. Clark diagnose Ms. Rachal’s spinal stenosis. At the recommendation of Dr. Clark, she received injections in her lumbar and physical therapy. Ms. Rachal additionally had lumbar laminectomy surgery a few years later after the lumbar issues continued, despite conservative treatment.