Articles Posted in Workers Compensation

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adult-blur-boss-business-288477-1024x768The equivalence of “dotting the i’s and crossing the t’s” in the law is making sure to comply with court procedural rules. One such basic civil court procedure rule is proper service. Proper service is critical in establishing that a court has legal jurisdiction over a defendant. The defendant has a right to know that they are being sued, and they have the right to be present at any hearing or to appear through an attorney. Without proper service, a court may dismiss a lawsuit. One can have a valid and strong claim for a lawsuit, but without proper compliance with court rules, the case may never even be heard. The importance of following procedure is highlighted in this Workers’ Compensation case heard in the Louisiana Fourth Circuit Court of Appeals.

The issue revolves around whether appellant A-1 St. Bernard Taxi & Delivery (“A-1”) was (1) properly served and (2) whether the Office of Workers’ Compensation erred in rendering judgment in Veronica Gordon’s claims for compensation. Ms. Gordon was involved in a car accident on May 2, 2015, while working for defendant A-1 as an independent contractor. She suffered injuries to her left arm, shoulder, neck, and back and filed a claim for compensation on August 7, 2015 (the “Original Claim”).

The Office of Workers’ Compensation (OWC) notified Ms. Gordon’s attorney that service on A-1 was unable to be performed at the address Ms. Gordon listed an incorrect address for A-1 in her Original Claim. Ms. Gordon listed a second incorrect address on an amended claim that also led to the failure of service. Ms. Gordon filed a motion to appoint a special process server and filed a second amended claim. In this claim, she stated that the special process server tried and failed several times to serve A-1. The OWC appointed the Secretary of State as A-1’s agent for service of process. The claim was sent to A-1’s last known address and the case moved for trial. Neither A-1 nor counsel for A-1 was present. The OWC ruled in favor of Ms. Gordon and denied A-1’s motion for a new trial, which A-1 appealed.

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2-man-on-construction-site-during-daytime-159306-1-1024x683What happens if you are exposed to something dangerous at work?  In the not too distant past, there would be no hope of restoration and only devastation. Today, with gratitude to some excellent lawyers and lawmakers, there are legal protections for people who are exposed to hazardous working conditions.  Negligent companies can still be required to pay damages even for a 10-year-old oil spill. In several cases from a 2006 Lake Charles oil spill, the Louisiana Third Circuit Court of Appeal affirmed a damage award despite the award being significantly higher than other damage awards in similar cases.  

In 2006, seven men were working several different jobs at the Calcasieu Refining Company (“Refinery”).  On June 16, 2006, CITGO Petroleum Corporation (“CITGO”) experienced a slop oil release at its refinery on Lake Charles.  As a result, 17 million gallons of wastewater was released with large portions of heavy oil reaching the Calcasieu Refinery (“Refinery”) and remaining there for weeks.  It took two months for the oil to be cleaned up. In the interim, the seven men working at the Refinery were exposed to the slop oil almost daily.  

The men worked for three different companies doing various jobs.  Some worked directly on the clean-up effort and came into contact with the oil.  Others were working on building projects at the Refinery or as supervisors. Despite different experiences with the slop oil at the Refinery, the men all experienced similar symptoms to the exposure.  All of the men complained of severe headaches and sinus problems. Most of the men also complained of intestinal problems. The men were all exposed to a toxic substance containing a well-known carcinogen called benzene.  There is no medical treatment for benzene exposure and all the men reported feeling afraid of developing cancer from the exposure. Moreover, there was no medical treatment for their ailments at all. Time could only ease the symptoms.  

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police-men-with-a-group-of-people-in-a-rally-2834169-684x1024Courts are often overflowing with frivolous lawsuits. In order to remedy this, defendants can file an exception for no right of action. If granted, the lawsuit is dismissed because the plaintiff cannot prove any facts that would support the claim. 

Emanuel Smith III worked as a police officer for a housing agency in New Orleans, before being terminated by his supervisor for sleeping while on duty. Prior to his termination, Mr. Smith alleges that Silas Phipps, Jr. received information about Mr. Smith illegally from a information center for crimes and that Mr. Phipps distributed the information to coworkers, causing Mr. Smith to suffer from various injuries, including shame and humiliation. Because of this, Mr. Smith filed a complaint before his termination. 

Because Mr. Smith filed a formal complaint, he brought a lawsuit against HANO (the housing agency), his supervisors, Messrs. Anderson and Fortner, and Mr. Phipps, asserting that his action constituted whistleblowing and thus that he was terminated wrongfully. The defendants filed peremptory exceptions of no right of action. The trial court then granted the exception for not having a right to action, dismissing Mr. Smith’s claims. Mr. Smith appealed to the Fourth Circuit Court of Appeals, arguing that the trial court granted the Defendants’ exceptions in error.

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abundance-bank-banking-banknotes-259027-1024x683Perhaps one of the biggest myths about the law is that you can bring a lawsuit anywhere about anything. In reality, a court must have jurisdiction in order to hear a case. Jurisdiction is the power of a legal body to make binding decisions over the people involved.  In addition to having jurisdiction over the parties to the case, the court must also have subject matter jurisdiction. Subject matter jurisdiction is the ability for a court to hear the type of lawsuit brought to it. As one East Baton Rouge man found out, contesting a court’s subject matter jurisdiction can cause quite a headache. 

Carey Holliday brought a lawsuit against the Louisiana Workforce Commission (“LWC”) in December 2015 for wages allegedly unpaid. Specifically, Holliday claimed that he deserved $5,868.34 of “premium pay” for performing administrative work which he was not paid for.

LWC claimed in response that the Civil Service Commission never authorized the premium pay and, therefore, they are not required to pay Holliday.  LWC stated that premium pay approvals are under the Louisiana State Civil Service Commission’s exclusive jurisdiction and that there was no subject matter jurisdiction of the district court to hear the case. Further, LWC claimed that Louisiana Wage Payment Act, which Holliday had filed his claims under, did not apply.

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63-Email_8_1_2019-pictureLearning of an illness is always terrifying. But what happens when it affects your everyday life and your ability to work? Hopefully, for most, the illness passes quickly. However, for people with chronic health issues, extended absences from work may cause issues at work, despite statutory protections. Experienced attorneys can help you navigate labor and employment law, but knowing your rights is the first step. The Fourth Circuit Court of Appeals ruled in favor of a New Orleans city employee in one such case of chronic illness.  

Ms. Wilsons’ struggle began in February of 2015, when she stopped reporting to work as a Title Abstractor at the Department of Property Management for the City of New Orleans. She soon produced documentation from her doctor. This documentation indicated that she was undergoing treatments that would prevent her from working, but that she would be reassessed in late March. In March and April, Ms. Wilson provided further documentation regarding her inability to return to work at that time.      

The situation in the Department of Property Management became tense during Ms. Wilson’s medical leave. Employees bore the weight of her absence, struggling to timely process work orders. This strain became the catalyst for her removal.      

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police-blue-sky-security-surveillance-96612-1024x683Injuries on the job can be devastating. Though the injuries themselves may be painful, the loss of a livelihood that may follow can be even worse. As a result, Louisiana has implemented workers’ compensation programs in order to provide relief for employees who are injured on the job. However, there are caveats that exist and not all injured employees may receive workers’ compensation. 

While training for employment as a security guard for Covenant Services Worldwide (“Covenant”), Bonnie Frazier suffered a rotator cuff tear in her right shoulder. Frazier underwent three surgeries on her right shoulder. Covenant paid for Frazier’s treatments. Despite her surgeries, Dr. Felix Savoie restricted Frazier from lifting five pounds over her head, twenty pounds from her waist to her shoulder, and thirty pounds in any circumstances. 

Fraizer eventually accepted a security officer position that entailed driving and periodic running. One day at work, Frazier asked her manager Vicki Bryant if she could leave work because she was suffering from severe shoulder pain. Bryant sent for another security guard named Jill Delatte. Before letting Delatte take over, Frazier wrote a note explaining that she was leaving work because of severe shoulder pain. In a recorded statement, Delatte reported that Bryant told Frazier that if she was going to quit, she was to leave her vest, badge and uniform. Frazier gave her vest and badge with Delatte and never showed up to work again. Almost a year later, Frazier filed a Disputed Claim for Compensation Form 1008, arguing that Covenant had unlawfully terminated her supplemental earnings benefits (“SEBs”). The Office of Workers’ Compensation (“OWC”) judge, however, found that because Frazier herself had terminated her employment, Covenant did not owe her any SEBs. 

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two-person-doing-surgery-inside-room-1250655-1024x683Workers’ compensation programs may provide you with some relief for an injury. However, it is important to note that depending on your recovery and other factors, you could be taken off such programs. This is because legislators want people to work if they are able. Though many people who depend on workers’ compensation programs truly deserve it, some people abuse the system. 

Lisa Tassin was a registered nurse at Touro Infirmary (“Touro”). Unfortunately, while moving an operating room table, she fell and landed on her tailbone, causing injuries to her lower back. Prior to this accident, Tassin was involved in two car accidents that resulted in chronic neck pain. Because of her work-related accident, she received temporary total disability benefits (“TTDs”) from Touro. 

Tassin was treated and examined by a slew of doctors. Though the doctors agreed that Tassin’s pain was genuine, they disagreed whether the origin of her pain was the work-related injury or her prior car accidents. Five years after the accident, Tassin filed a Disputed Claim for Compensation against Touro because Touro reduced her TTDs to supplemental earnings benefits (“SEBs”). Touro claimed that Tassin was no longer disabled and could earn wages equal to those before her work-related injury. The matter was taken to a workers’ compensation judge who found that Tassin was no longer entitled to TTDs because she was unable to show that she was incapable of any employment. Furthermore, the judge ruled that she was also not entitled to SEBs because she could work in other health care positions if she had not let her nursing license lapse. 

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gasoline-station-during-night-time-92077-1024x489The five factor Daubert test is used in federal courts to determine if the methodology used by medical and other experts is reliable. The five factors that may be considered under the Daubert standard to determine whether the methodology is valid are: (1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community. See Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993).

In this case, Natalie Konrick (“Ms. Konrick”) worked as a security guard at a refinery in Louisiana that was owned by Chalmette Refinery, L.L.C. (“Chalmette”) and operated by Exxon Mobil Corporation (“Exxon”). She, unfortunately, had a stillborn baby, allegedly as a result of the toxins to which she was exposed to while working at Chalmette. Ms. Konrick obtained experts Dr. Robert Harrison, Dr. Cynthia Bearer, and Dr. Lauren Waters to testify regarding the general causation of her having a stillborn baby.

The District Court granted Chalmette’s motion to exclude the three expert’s testimony because it found that their opinions were based on unreliable methodologies. As a result of the grant of the motion to exclude expert testimony, summary judgment was granted in favor of Chalmette because there was no evidence of general causation as to the stillborn baby.

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pexels-photo-681335The Louisiana Department of Transportation and Development (“DOTD”) has a duty to maintain safe and accessible transportation infrastructure for the state. One might think that because the DOTD is such a large entity, no damages could be recovered from an accident due to unsafe conditions on transportation infrastructure. However, it is possible for a plaintiff to recover damages against the DOTD.

On April 24, 2014, Antonio White (“Plaintiff”) was working at night with a crew painting lane strips on the road. He was operating a crash attenuator truck when he was struck from behind by an 18-wheel tractor trailer driven by David Hornak (“Defendant”), who was operating the trailer as an employee of J.I.T. Distributing, LLC (“J.I.T.”). The Plaintiff suffered injuries from the accident and filed suit against multiple parties, including the defendant, J.I.T., and the DOTD. 

At the trial court level, DOTD filed a motion for summary judgment stating the reason for the accident was the Defendant had fallen asleep at the wheel. DOTD argued they could have done nothing else to prevent the accident from happening. The trial court found that the cause of the accident was solely due to the Defendant and J.I.T. and granted DOTD’s motion for summary judgment. DOTD was dismissed from the case with prejudice, and the Plaintiff appealed. 

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clouds-crane-drill-414936-1024x384Everyone gets injured, but what happens when you are injured on the job and had been in an accident in the past? Does the court take that into consideration if you file a lawsuit, or does the court presume an accident was work-related? In one local case, the workers’ compensation judge found that the injury at issue was not caused by the work accident. The injured party, Todd Porche (“Porche”), appealed this determination. 

Generally, when reviewing workers’ compensation cases, the appellate court must determine whether the commission’s conclusions are reasonable using the clearly wrong standard. Richardson v. North Oaks, 91 So.3d 361, 365 (La. App. 2012). If there are two acceptable views of the evidence, the fact finder’s decision may not be found manifestly erroneous, or clearly wrong. Here, Porche alleged that the workers’ compensation judge erred in denying the reopening of the case, which is within the discretion of the court. Reopening the case would have allowed Porche to prove causation.

On September 11, 2013, Todd Porche (“Porche”) was working for Guichard Operating Co., LLC (“Guichard”) when he fell between eight to fourteen feet onto a steel rig floor, where he allegedly injured his back and head. As a result, Porche received workers’ compensation benefits from the date of the accident through March 13, 2014. When Guichard terminated Porche’s benefits, the company alleged that Porche violated La. R.S. 23:1208 and 23:1208.1. If true, it would mean Porche forfeited all benefits and would owe the company restitution, interest, and costs. After a four-day trial, the workers’ compensation judge denied Porche’s claims.

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