Articles Posted in Workers Compensation

construction-worker-safety-gear-1024x683Almost every adult American has thought about what would happen if they were injured at work. They ask would they receive enough to sustain their pre-injury lifestyle and if not, what remedies are available. Typically, employees are eligible for workers’ compensation, but the workers’ compensation system seems odd to some people. For example, if you lose a finger at work, you will get a set amount, but depending on what finger you may get more than someone else who also lost a finger. The question, in this case, is whether Terry Russell, who was injured on the job, is eligible for supplemental earning benefits (“SEBs”). A SEBs award is based on the difference between the claimant’s pre-injury average monthly wage, and the claimant’s proven post-injury monthly earning capacity. Seal v. Gaylord Container Corp., 704 So. 2d 1161 (La. 1997).

In 2009, Mr. Russell was employed by the Sewage & Water Board of New Orleans (“Sewage & Water Board”), when he was unfortunately injured while opening a manhole cover. The accident caused blood clotting in his upper arm and it was later found to have caused “thoracic outlet syndrome,” which injured a vein in his upper chest. To repair the damage, Mr. Russell underwent several surgeries and procedures, one of which was to remove one of his ribs to correct the thoracic outlet vein syndrome and repair the vein stint that was placed during an earlier surgery. By April of 2012, Dr. Torrence, Mr. Russell’s main doctor throughout the ordeal determined that Mr. Russell had reached maximum medical improvement, clearing him to return to work. However, he was only cleared for sedentary work, meaning he could not use his left arm, life more than five pounds, nor work more than four hours per day.

Due to Mr. Russell’s longtime employment and good work ethic, the Sewage & Water Board offered him part-time work as a mail courier, which he declined because he would not be making his pre-injury salary. After declining the position, the Sewage & Water Board stopped making disability payments to Mr. Russell, leading to the case in question. Mr. Russell asked the Louisiana Court of Appeals (the “Court”) to overturn the Office of Workers’ Compensation calculation of SEBs that Mr. Russell is entitled. To be entitled to SEBs one must not earn 90 percent of their pre-injury wages, which Mr. Russell would not had he accepted the part-time mail courier work. See La. R.S. § 23:1221. Thus, the Court correctly held that Mr. Russell was entitled to SEBs; however, they determined that the wages he would have earned as a mail courier must be imputed to him for the purposes of calculating his post-injury earnings. La. R.S. § 23:1221.

welding-1414385-1024x683Disputes over injuries that occur on the job can be difficult to resolve for both employer and employee. Louisiana’s Third Circuit Court of Appeal addressed a common source of dispute — whether an employee’s medical condition was actually caused by his employment — in a case involving a welder who developed compartment syndrome.

Isiah Loucious began working as a welder apprentice for Crest Industries in February of 2014.  In September 2014, he filed a lawsuit against Crest alleging that beginning in April 2014, he developed an occupational disease of compartment syndrome as a result of his work activities. An occupational disease is any disease or illness that occurs due to the actions and conditions of a job. La. R.S. 23:1031.1(B). Loucious alleged that after he started working for Crest, he began to experience cramping and swelling in his right arm and hand. Crest filed a motion for summary judgment, asserting that Loucious had complained of having a weak hand grip, numbness, and tingling in both hands a number of years before the alleged the onset of compartment syndrome. A motion for summary judgment is made when a party believes that the adverse party has failed to provide evidence to show that there is a genuine issue of material fact in dispute. Loucious opposed Crest’s summary judgment motion, relying on a medical record wherein the physician, Dr. Raymond Beurlot, checked “yes” next to the statement:  “the compartment syndrome in the right hand/arm developed, more probably than not, during the course and scope of employment with Crest Industries, LLC.” The Workers’ Compensation Judge (WCJ) granted Crest’s summary judgment motion, explaining that nothing in the record showed that Dr. Beurlot knew the specific job functions and duties of Loucious when signing the medical record. Therefore, the record did not support Loucious’s contention that his medical condition was the result of his employment with Crest. Loucious appealed the WCJ’s ruling.

The issue for the Court of Appeal was whether the WCJ was correct in holding that the medical record signed by Dr. Beurlot did not create a genuine issue of material fact that should have precluded summary judgment. Under Louisiana law, an alleged occupational disease is presumed not to have occurred during the course of employment when the employee has performed the particular job duties for less than twelve months. La. R.S.23:1031.1(D). In order for the employee to controvert this presumption, he must provide evidence that contradicts the presumed fact. La. C.E. art. 305. That evidence should pertain to the employee’s work and life activities before the time of employment. See Davies v. Johnson Controls, Inc. A certified medical record can serve as this evidence, so long as it is prepared by the health care provider in his or her usual course of business. La. R.S.13:3715.1(E)(2).

architecture-building-fire-exit-ladders-213976-1024x683Compensation for work-related injuries can be an area of concern for both employees and employer. But what happens when the employee provides inconsistent stories that refute the injury alleged to have been suffered? The Second Circuit Court of Appeal for Louisiana recently addressed the issue.

In August 2013, Kevin Tingle (“Tingle”) began to work at Page Boiler in Louisiana. Tingle was performing job duties at when he claimed to have fallen 20 feet off a scaffold into the boiler he was cleaning while working. Tingle was then airlifted from one hospital to another because of the seriousness of his injuries. Nurses in the emergency room recorded that Tingle had fallen t and that Tingle was complaining various pains. However, the scan of Tingle’s back showed a lack of evidence that he was injured. Tingle was discharged that same day and was instructed to seeek medical treatment with another doctor.

On September 27th, 2013, Tingle visited his primary physician complaining of terrible back pain. Tingle’s mother informed the physician that Tingle was unable to feed himself due to the pain. After Tingle’s X-rays came back negative, his primary physician referred him to another set of doctors who specialize in neck and back injuries. Tingle retained a lawyer, and the lawyer then notified Page Boiler’s insurance company, Argonaut, that Tingle had selected a doctor for the physician to deal with his neck and back complaints.

entering-arkansas-1215127-1024x671Workers’ compensation provides an avenue for workers injured on the job to receive the compensation a worker deserves. But what happens when a resident of one state is injured while working for a company in another state? A recent case out of the Second Circuit Court of Appeal for Louisiana addressed this issue when a Monroe, Louisiana worker, working for an Arkansas company, was injured in Mississippi.

Levi Williams was injured in Mississippi while driving a truck for Morris Transportation, Inc. (“Morris Transportation”), an Arkansas company. After the accident, Mr. Williams applied for and was granted, workers’ compensation benefits in Arkansas. Those benefits went away after Morris Transportation released Mr. Williams from work. Subsequently, Mr. Williams sought workers’ compensation benefits in Louisiana. Morris Transportation contested Mr. Williams’s request and the matter went before a Workers’ Compensation Judge (“WCJ”). At a hearing, the WCJ ruled in favor of Mr. Williams, holding that Mr. Williams was entitled to Louisiana workers’ compensation benefits. Under Louisiana law, an injured employee is entitled to workers’ compensation when injured while working outside the state if the employment contract is made in Louisiana. La. R.S. 23:1035.1 (2016). The WCJ found that the contract, in this case, was made in Louisiana and therefore, Mr. Williams was entitled to Louisiana workers’ compensation benefits. Morris Transportation, disagreeing with the WCJ’s assessment, appealed the decision.

On appeal, the Second Circuit Court of Appeal examined whether the employment contract between Mr. Williams occurred in Louisiana. Both Mr. Williams and Morris Transportation dispute the facts surrounding the formation of the employment contract According to Mr. Williams, he previously worked for Morris Transportation, but left to work for another employer. A little while after Mr. Williams left Morris Transportation, he called Morris Transportation and was told by an employee that he could come back and work for his former employer. Mr. Williams claimed that during this call he was told by by Morris Transportation that he could “come back.” Mr. Williams testified that the day after the phone call he drove, signed a driver qualification form, and began to working. Morris Transportation, conversely, argued that the phone conversation between Mr. Williams and itself did not form a contract. It claimed that the phone conversation could not constitute an employment contract because Mr. Williams had not gone through the employment process required before Morris Transportation hires an employee.

scaffolding-1518087-1024x768What happens to Workers’ Compensation Benefits once a claimant is awarded benefits and employment is terminated after the fact? Is the employee still entitled to the awarded benefits? In general, an employee must be injured within the course of employment to qualify for benefits. Supplemental Earnings Benefits (“SEBs”) are paid when the injured worker has reached maximum medical improvement but is not capable of earning 90% of pre-accident wages. This case explains what happens when an employee is fired after being awarded SEBs.

Kenneth Andrews worked as a journeyman for Thrasher Construction, Inc. (“Thrasher”). On January 7, 2013, Mr. Andrews fell off a scaffold after some boards flipped up and injured his wrist, arm, shoulder, knees, and back. On October 15, 2013, Mr. Andrews filed a disputed claim for compensation against Thrasher and SeaBright Insurance Company (“SeaBright”). On the same day that Mr. Andrews completed his required medical exam, Thrasher filed a notice of suspension and terminated his workers’ compensation benefits. Pursuant to La. R.S. 23:1201.1(K)(8)(a)(vii), Mr. Andrews filed a motion for expedited summary proceedings to lift the suspension of his benefits, alleging that Thrasher arbitrarily and capriciously terminated his benefits.

On January 12, 2015, the case proceeded to trial. The Workers’ Compensation Judge (“WCJ”) rendered judgment in favor of Mr. Andrews and awarded him SEBs. The WCJ also ordered that a Functional Capacity Evaluation (“FCE”) be performed for Mr. Andrews. Thrasher and SeaBright appealed the WCJ’s judgment to the Louisiana First Circuit Court of Appeal, alleging that the WCJ improperly awarded Mr. Andrews SEBs without the claimant first making a prima facie showing of entitlement.

loadin-the-lumber-1250972-1024x736Direct employment is the traditional and most common employer-employee relationship. But what happens when a statutory employee is injured on a work site? A statutory employee is an employee as defined by a state’s statute. While the employer is not the direct employer, the employer becomes the employer of record by force of law. Any worker injured while in the course and scope of employment for a statutory employer must be extended the same protection and benefits as those owed to the employees of the direct employer. This slip-and-fall accident case out of Tangipahoa Parish further describes the rights of Louisiana’s statutory employees in workers’ compensation cases.

Devon Energy Production Company, L.P. (“Devon”) was involved in the drilling of a well in Kentwood, Louisiana. Devon entered into an agreement with Asset Security for it to provide security services for Devon at the drilling site. The agreement provided that Devon was to be considered the statutory employer of Asset Security’s employees for purposes of La. R.S. 23:1061(A)(3) and Devon was entitled to the Louisiana protections that are afforded a statutory employer. On July 16, 2012, Ms. Shannon Robinson Kazerooni slipped and fell from the stairs when exiting the mobile trailer at the drilling site. Ms. Kazerooni was a reserve deputy with the Tangipahoa Parish Sheriff’s Office, which had an agreement with Asset Security to provide police officers for security assignments.

Ms. Kazerooni filed a lawsuit against Devon, alleging that the accident and her resulting injuries were caused by Devon’s negligence, and Monster Rentals, LLC, (“Monster”), alleging that Monster provided a defective trailer. Devon asserted the affirmative defense that Devon was the statutory employer of Ms. Kazerooni and that Ms. Kazerooni’s exclusive remedy was workers’ compensation benefits pursuant to LSA-R.S. 23:1061. Devon filed a motion for summary judgment, arguing that Ms. Kazerooni was a statutory employee pursuant to the agreement between Devon and Asset Security and that Devon was immune from suit for tort damages because Ms. Kazerooni’s exclusive remedy was workers’ compensation benefits from Devon. On October 14, 2015, the trial court granted Devon’s motion for summary judgment. Ms. Kazerooni appealed the trial court’s decision to the Louisiana First Circuit Court of Appeal, arguing that there was an unresolved genuine issue of material fact as to whether she was a statutory employee because she was merely a volunteer.

energy-1495365-1024x768After making a successful workers’ compensation claim, an insurer may make a subrogation claim, which is the right of an insurer to recover the amount paid out in a claim from a third party that caused the claim to occur. However, failure to properly reserve this right can affect an insurer’s right to recovery and possibly bar recovery altogether. A recent lawsuit in the Orleans Parish highlighted this fact.

In the aftermath of Hurricane Gustav, numerous workers were needed in order to restore Louisiana’s power grid. Mr. Scarberry was a former electrical lineman for Oklahoma Gas and Electric company (OGE). OGE is part of the Southeastern electrical Exchange (SEE), which is a nonprofit trade association composed of numerous utility companies that provide electricity throughout the U.S. Members in the SEE enter into Mutual Assistance Agreements, which govern relationships between requesting members and responding members. In this case, Entergy Gulf States Louisiana L.L.C. and Entergy Services, Inc. (collectively referred to as Entergy) requested the assistance of OGE in restoring power throughout Louisiana. As a result of this request, Mr. Scarberry began working for Entergy in Jennings, Louisiana under an agreement.  

During his efforts, Mr. Scarberry was severely electrocuted and became permanently disabled as a result of the accident with no chance for gainful employment in the future. Mr. Scarberry filed a lawsuit in July 2009 against Entergy. During this period, Mr. Scarberry received workers compensation from OGE in the amount of $150,162.49. OGE received reimbursement for these payments from Entergy, which was acknowledged with a “receipt” executed on August 1, 2011, pursuant to their agreement.  OGE also reserved their right to subrogation with the receipt.  

knee-x-ray-2-1562058-768x1024Workers’ compensation laws require companies to set aside a fund to pay their employees for work-related injuries. But what happens when the employer also has long-term disability insurance and the injured employee collects both workers’ compensation benefits as well as the employer-funded long-term disability benefits? Receiving benefits from the correct source of workers’ compensation income can prevent the headache of having to pay back thousands of dollars years later.   

A Parish of Caddo woman, Sheila Hill, was hired by Fresenius Medical Care NA (“FMC”) to work as a dialysis technician at its facility in Bossier City. She later began to experience tingling and numbness in her arms and began to see Dr. Clint McAlister, an orthopedist. Dr. McAlister diagnosed Ms. Hill with severe bilateral carpal tunnel syndrome (“CTS”), which was caused or aggravated by her work duties. Dr. McAlister recommended release surgery. A second orthopedist, Dr. Michelle Ritter, concurred with Dr. McAlister’s diagnosis and treatment plan.

FMC accepted the claim as work-related and began paying Ms. Hill temporary total disability (“TTD”) benefits. Ms. Hill underwent two carpal tunnel release surgeries in 2012, which was performed by Dr. Michael Acurio. Dr. Acurio diagnosed Ms. Hill as suffering the degenerative joint disease of the left basilar joint along with ongoing residual CTS.  

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.