Articles Posted in Workers Compensation

arizona-asphalt-blur-2199293-1024x684Sometimes accidents at work happen. But what happens when an accident could have been prevented by an employee? It is a common question to wonder whether an employer is still liable for the actions of an employee, especially in cases where a defect may be open and obvious. A Louisiana delivery driver confronted this very situation after he was injured on a loading dock.

Saia Motor Freight employee Ethan Rose was delivering to Doerle Food Services, LLC, in December 2010. Because the delivery was so large, a temporary bridge made of a metal docking plate, which extended from the truck and across the gap in the floor from the truck and the warehouse floor, was required to move it off of Rose’s truck and into Doerle Food Services’ warehouse. On December 22, the makeshift bridge did not lie flat, but instead had a bump where the flap hinged. The conditions on the bridge were also muddy and wet. As Rose tried to move a pallet of delivery goods over the bump and hinge, he fell onto the ground, injuring his neck and back.

Rose brought a lawsuit for damages from his injury against Doerle Food Services and its insurance company, Liberty Mutual Fire Insurance Company, eleven months later. In 2015, Doerle Food Services and Liberty Mutual Fire Insurance Company filed a motion for summary judgment on the grounds that Rose could not prove there was an “unreasonable risk of harm” on the loading dock bridge plate because the defect was open and obvious.

70-picture-1024x683When someone is injured on the job, sorting out liability can be complex. It can be doubly so when a prisoner is temporarily released so he or she can work and is subsequently injured on a job that was approved by the prison system and the sheriff managing that prison, but completely run by a private party. In such a situation, it will take an excellent lawyer to sort out the liability issues and advise whether a lawsuit is worth bringing. So, who is liable for injuries on a work release program?

Sheriff Mike Tubbs found himself named in a lawsuit by an inmate who was injured in just such a situation. Ronnie Thomas was a prisoner in a jail in Morehouse Parish, Louisiana when he was approved for work release. His work release was assigned to the waste management department, where he worked as a “hopper” on the back of a garbage truck. He would jump off the back at each stop and grab the trash and throw it into the truck. During one of his jumps he fell and was injured. He sued several defendants, including Sheriff Tubbs, for their failure to provide a safe work environment. The trial court dismissed the case after the Sheriff filed a motion for summary judgment, arguing that he owed Mr. Thomas no duty to provide a safe work environment. The trial court held that Mr. Thomas was an employee of the waste management company and thus his only remedy was workers’ compensation. Mr. Thomas appealed, but the Louisiana Second Circuit Court of Appeal affirmed the dismissal.

The work release program that is run by the Morehouse Parish jail requires that the prisoner fill out an application for a job that seems suitable. In this case, Mr. Thomas applied for a job with the Morehouse Parish Police Jury, who reviewed his application and determined that he could work for the waste management company, Morehouse Parish Solid Waste, which is a third-party company. He was then assigned duty as a “hopper” by the company. He was injured in the course of his employment. According to the Court of Appeal, an employee’s exclusive remedy when injured in the course of his employment is workers’ compensation. However, Mr. Thomas argued that his situation was unique because he was a prisoner and out only due to the work release program. In his view, the sheriff was also responsible because he had assigned him to work, arranged what hours he would work, and was the one who negotiated how much he would be paid. He also pointed out that he received his payment through the inmate banking system. Thus, he argued that this level of participation by the sheriff also bound the sheriff with a duty of care to provide a safe work environment. The trial court and the Court of Appeal did not agree. They pointed to substantial case precedent for the settled principle in Louisiana that when a prisoner is released through a work release program they are an employee of the private company that provides employment, and that private employer enjoys immunity provided by the workers’ compensation program. The factual situation, wherein the prisoner applies for a job and is solely supervised by the employer during the release period, also backed up this finding,

59-Email-04-02-19-picture-1024x683When you go to work each morning, the last thing you want to think about is: “What happens if I get hurt?” Unfortunately for many, workplace accidents are a real concern. The following case shows just how real, and complicated, workplace injuries can be.     

Carlos Cordon sustained multiple injuries while working one day for Parish Glass of St. Tammany (“Parish Glass”). He was at a warehouse loading mirrors into a truck when the mirrors fell on him, resulting in a broken leg, lacerations to his right arm, and aggravation of a preexisting neck injury. These injuries required multiple surgeries and resulted in permanent scarring.  After the accident, Cordon was required to take a drug test, which revealed prescription drugs and marijuana in his bloodstream. The Office of Workers’ Compensation (“OWC”) found, under La. R.S. 23:1081(13), that Cordon was intoxicated at the time of the accident. Due to the intoxication, the OWC decided that Cordon forfeited his rights to all workers compensation and medical benefits. Cordon then brought this case to court. The following case is on appeal from the Office of Workers’ Compensation Administration, District 6.

At the first trial, Cordon was ordered to pay LUBA Insurance Company restitution of $140,491.71 for indemnity benefits and $145,536.99 for medical payments. After Cordon appealed, the court held that he still forfeited his rights to all workers compensation and medical benefits under La. R.S. 23:1081(1)(b); however, the court also found that Parish Glass was responsible for reasonable emergency medical care until his condition stabilized. After this finding, Parish Glass and LUBA agreed to pay $43,742.91 for Cordon’s emergency medical care. As Cordon’s total medical expenses were $145,536.99, he was required to reimburse LUBA the difference of $101,794.08. Cordon agreed to and signed this stipulation.

vertebrea-1-1559257-1024x768When you are injured on the job, you expect for your medical expenses to be covered through worker’s compensation. However, when your employer denies your recommended medical treatment to recover from your injury, what do you do? First, you file a disputed claim for medical treatment form (Form 1009) with the Medical Director of the Office of Workers’ Compensation Administration. If that claim is denied administratively, then you are entitled to a hearing before a Workers’ Compensation Judge (WCJ). However, sometimes the process does not go as planned. For example, in this instance a Workers Compensation Judge ordered the defendants claim be paid but the employer appealed the WCJ’s decision.

Robert Friedman was an employee of Ecolab, Inc. when he injured his back on the job in October 2007. At first, his course of treatment was mild and done by a primary care physician, then a pain specialist. However, his symptoms persisted into 2011, when he was referred to an orthopedic surgeon. That surgeon first did a lumbar interbody fusion, which is a surgical procedure where a damaged disc is removed and replaced with bone graft material.  Symptoms persisted into 2013 when the orthopedic surgeon referred Friedman to a neurosurgeon, who ran additional tests. The neurosurgeon’s tests revealed loosened screws/hardware from the initial lumbar interbody fusion. Eventually, the neurosurgeon suggested a new lumbar interbody fusion that would both fix the initial procedure as well as provide additional support. EcoLab approved the portion that would fix the initial procedure but denied the portion that would provide additional support as they did not feel it was medically necessary. Friedman then filed a Form 1009 with the Office of Workers’ Compensation Administration, which was denied due to insufficient clinical information. Friedman then re-filed his Form 1009 to get a hearing before a WCJ in Ouachita Parish, who granted Friedman to get his entire prescribed procedure, as well as legal fees covered once evidence was submitted. Ecolab appealed to the Second Circuit Court of Appeal.

Workers’ Compensation Claims are determined under guidelines in Title 40 of the Louisiana Administrative Code. At issue is whether the evidence supports that extended lumbar interbody fusion is medically necessary. Workers’ Compensation is supposed to cover the costs of medical treatment that is reasonably necessary for treating medical conditions caused by a workplace injury. See La. R.S. 23:1203. Medically necessary treatment is supposed to be that which is consistent with the diagnosis and treatment of a specific condition rather than solely based upon a patient’s preference. A claimant’s appeal of the Medical Director’s decision to a WCJ is based upon clear and convincing evidence, which means evidence has to be substantially more likely to be true than not true. 40 LA ADC Pt. I, §2715 sets the criteria about what evidence is necessary. As this procedure was a follow-up to his 2011 surgery, Friedman did not need to send inasmuch documentation.  For that reason, the Appeals Court determined that the Medical Director erred in their judgment and thus upheld the WCJ’s ruling in favor of Friedman, as well as awarded attorney fees.

46-Email-03-13-19-Image-1024x682Workers’ compensation exists to aid employees who suffer injuries while on the job. However, companies can sometimes be uncooperative after their employees become injured by dodging responsibility and avoiding making payments. Despite these difficulties, a case backed by strong evidence can help injured employees receive the compensation they deserve. How can you get the workers compensation you deserve when your employer is avoiding payment?

Patricia Wilson, a Glazer employee, had a physical job involving reaching, bending, pushing, lifting, and pulling while packaging bottles of liquor on a conveyor belt. Ms. Wilson was working on the assembly line on May 15, 2012, when she tripped on a floor mat and took a hard fall. She stopped working and sought medical care right away, where she was diagnosed with contusions to her right shoulder, gluteal back, and hip, as well as a neck strain. She was given medications and instructed to ice the area. After some intermittent time off of work and a handful of doctors visits, in late July she was discharged from her doctor’s care despite experiencing lingering pain. For the following year, Ms. Wilson experienced pain at work, specifically on her right shoulder and neck.

On Monday, July 8, 2013, Ms. Wilson was working on a shorthanded line and experienced more of a physical demand than she usually would on a Monday. Ms. Wilson experienced pain in her right shoulder and neck throughout her shift that night. The next morning Ms. Wilson’s pain was so great that she called in sick for work. The pain did not subside over a series of days, and after many fruitless attempts to speak with management to receive direction on how to proceed, Ms. Wilson was finally authorized to see her doctor three weeks later on July 31, 2013.

ice-calves-1543085-1024x770Ice storms can create hazards for the general public as well as employees. A Mansfield nurse found out that parking lot falls do not qualify for workers’ compensation benefits. A Shreveport Hospital was able to avoid paying workers’ compensation benefits with the help of an excellent attorney after the employee’s fall.

Joyce Lafitte-Nesom is a nurse manager at Christus Schumpert Highland Hospital (the Hospital) in Shreveport. She typically worked an eight-hour shift from 4:00 pm until midnight. She commuted to the Hospital from her home in Mansfield, Louisiana. On February 11, 2014, the area had an ice storm and many nurses were unable to make their shifts due to the storm. The Hospital was put on diversion and stopped accepting patients due to the shortage of employees.

Ms. Nesom worked until 1:40 am instead of midnight because she was told by Hospital security that the Hospital parking lots were icy and the Hospital was low on materials to apply to the parking lot to help alleviate the slippery conditions. The roads to her home in Mansfield were also closed by the police due to the hazardous conditions. After her shift ended, Ms. Nesom made a decision to wait until the roads were better. She tried to rest in an empty room, but at 5:00 am she gave up and started performing her normal duties. She did not count this toward her working hours for the day. Another nursing house supervisor who lived closer, Ahleeka Cummings, allowed Ms. Nesom to stay at her place until conditions improved.

lab-work-1575844-1024x683Have you ever been tempted to take a sick day, just because you need a break? Have you ever called in or left early because you are feeling under the weather and you would not be able to forgive yourself if you exposed the entire office to the bug you caught? Although many employees may stretch the truth on sick days sometimes, there are occasions where it becomes irresponsible and unprofessional. One Louisiana man attempted to test the boundaries of worker compensation when he requested medical payments for his sickness. So, how can you determine if someone is faking symptoms in a workers compensation case? 

This case involves a man filing a workers compensation claim against his former employer. The employee’s name is Remco Leidelmeijen, and he was working for the company, Ferncrest Manor Nursing Home, as a licensed practical nurse. One day, while performing his work duties, he entered a patient’s bathroom to empty out a catheter bag and slipped on water that was on the floor. As a result of the slip, Leidelmeijen first fell forward, hitting his face and jaw on the sink, and then he fell backward and hit the back of his head on the floor. Immediately after the accident occurred, he declined a request to call an ambulance and instead had a family member bring him home from work. He went to the emergency room later that day and received treatment for head trauma occurring at work, according to the emergency room records. He allegedly had injuries for his head, his mouth, and his teeth. Therefore, Leidelmeijen filed suit in hopes of paying the medical bills he accrued for treatment of injuries that he claims came from the accident. Ultimately, he ended up with partial relief.

Leidelmeijen’s only dispute was for his claim of medical benefits, which is what was tried in front of Judge Robert Varnado, Workers’ Compensation Judge of District Eight. This court ultimately found that Leidelmeijen failed to prove entitlement to medical benefits. The majority of the medical expert testimony introduced into evidence found that Leidelmeijen did not have the brain injuries he claimed from the accident but is instead malingering. A malingering diagnosis means that the person might be deliberately or consciously feigning symptoms for an ulterior purpose (e.g., avoiding work, receiving money, prolonging illness with the intent to avoid responsibility and so on, and/or obtaining medications). Leidelmeijen appealed the decision, and it went before Chief Judge James F. McKay, III, Judge Edwin A. Lombard, and Judge Rosemary Ledet. They affirmed the judgment against Leidelmeijen.

bandage-close-up-hands-1571172-1-1024x683What happens when a verdict that the employee is entitled to Workers’ Compensation Benefits has been handed down by the Office of Workers’ Compensation, but the awarded medical benefits have not and are not being paid? Generally, an employee will move for penalties and attorney fees to be imposed on the employer or its insurer for failure to pay the benefits. Under Louisiana law, awarded medical benefits must be paid within sixty days of the employer or insurer receiving notice that the employee has been awarded medical benefits. La. R.S. 23:1201. Failure to pay the medical benefits within sixty days requires the imposition of penalties and attorney fees on the employer or insurer unless the employer or insurer reasonably controverts the employee’s claim. Id.

Vanessa Weaver (“Ms. Weaver”) was awarded supplemental earning benefits (“SEB”) after proving that she was injured at work by falling and hitting her wrist on a pipe, and that she was not able to make 90 percent of her pre-injury wage regardless of whether she was in the same or similar occupation that she had prior to her on-the-job injury. See La. R.S. 23:1221. Her employer Louisiana Wholesale Drug Company, Inc. (“LWD”) contended that the Office of Workers’ Compensation erred in awarded Ms. Weaver SEB’s. As a result, LWD failed to pay Ms. Weaver her awarded medical benefits within sixty days of LWD and its insurers being put on notice of the award.

As mentioned above, LWD may get around the requirement to pay penalties and attorneys’ fees for their failure to pay Ms. Weaver her medical benefits within sixty days, if they reasonable controvert her claim. La. R.S. 23:1201. Meaning, LWD must present sufficient factual and medical information to reasonably counter the evidence provided by Ms. Weaver. Mouton v. Walgreen Co., (La. App. Cir. 2008). LWD was able to controvert Ms. Weaver’s claim with the theory that Ms. Weaver was able to continue working at her pre-injury job, making her pre-injury salary.

arm-bandage-hands-1409706-1024x709What happens with Workers’ Compensation Benefits when you are still able to work, but cannot make your pre-injury wage? Are you entitled to the difference in pre-injury and post-injury wages? Or are you out of luck? Supplemental earning benefits (“SEB”) are paid at two-thirds of the difference between what a person earned before their on-the-job injury and after their on the job injury, whether working or not. SEB’s are available to an individual who was injured at work and is unable to earn at least 90 percent of their pre-injury salary due to the injury. La. R.S. 23:1221.

It is uncommon for the employer, Louisiana Wholesale Drug Company, Inc. (“LWD”), in this case, to argue that the employee is not entitled to SEB’s for a multitude of reasons. Here, for example, LWD is arguing that Vanessa Weaver (“Ms. Weaver”), is not entitled to SEB’s because she voluntarily terminated her employment while LWD was accommodating Ms. Weaver’s work restrictions. Ms. Weaver, on the other hand, alleges that she terminated her employment because LWD was no longer accommodating her by requiring her to lift a box, which was against her work restrictions.

While working at LWD, a box of glass bottles began to fall, so Ms. Weaver dove to stop them from shattering, as she dove, she hit her wrist on a pipe. She went to the hospital, which noted swelling, bruising, and soreness. The doctor allowed her to return to work, but ordered restrictions, including that she was not able to use the injured part of her hand (i.e., her wrist). The injury occurred in March of 2013, and in July 2013 when she terminated her employment her wrist was still sore, and there was a palpable “click.” Further, in July 2013 her work restrictions had not been lifted. As a result, when Ms. Weaver terminated her employment, she alleged that she was entitled to SEB’s because she could not make her pre-injury salary, as LWD was no longer accommodating her injury.

red-faced-ghoul-1309146-1024x681On the job injuries often present complicated healthcare-related decisions., especially when it comes to pain management. What happens when an insurer denies a successful treatment option? In the case of one Caddo Parish employee, securing effective pain management became an equally difficult encounter.  

After suffering a work-related injury, Ms. Veronica Black began experiencing chronic pain in her hands. Ms. Black sought treatment from both an orthopedic surgeon, and a pain management specialist. She was diagnosed with two disorders, chronic regional pain syndrome (CRPS) and carpal tunnel syndrome (CTS), and prescribed a powerful topical cream. Thankfully, the prescribed cream alleviated some of Ms. Black’s pain.

In spite of this solution, CenturyLink’s insurer denied the approval request that Ms. Black’s doctor filed, stating the topical cream could not be considered a medical necessity. Ms. Black filed a claim in response to the Medical Director for the Office of Workers’ Compensation Administration, disputing the insurer’s determination. On February 11, 2015, the Medical Director denied her request, citing a lack of research supporting the topical cream’s use in effective pain management. Ms. Black also filed compensation claims against CenturyLink, and its insurer, Sedgwick, soon after. These claims were similarly unsuccessful.