Articles Posted in Workers Compensation

55For some people, getting fired from work is like receiving the death sentence.  In the following case, an employee was fired without any reason by his employer. The employer also tried to shortchange him by not giving him his earned wages. However, the employer fought back and, more or less, was vindicated under Louisiana law.

Ralph J. Hanks worked at Louisiana Companies as an insurance producer for more than two decades. However, on November 10, 2009, his employer terminated him without any explanation. As part of his termination, he was given a Separation Agreement (“Agreement”) to sign, which stated that Louisiana Companies would pay the wages he had thus far earned. The Agreement also stated that Hanks would sell his Louisiana Companies stocks to Louisiana Companies. Furthermore, Hanks would agree not to sue Louisiana Companies or solicit current Louisiana Companies employees. If Hanks were to sue or solicit customers, then Louisiana Companies stated that it would not pay the wages he had earned.

Hanks signed the Agreement on December 1, 2009. In February 2010, Hanks began working for another employer, First Federal. First Federal shared that it had hired Hanks through a local billboard and newspapers. As a result, some of Louisiana Companies’ customers moved to First Federal for their business. Soon after, Louisiana Companies notified Hanks that he had violated the Agreement and stated that it would not pay his earned wages. Hanks sued Louisiana Companies. The district court found that Louisiana Companies’ Separation Agreement was null and void because Louisiana Companies, by making Hanks sign the Agreement, violated Louisiana’s wage payment statute. Louisiana Companies appealed. 

49-Email-06-24-19-pictureIf you suffer an injury on the job, you will likely face a mess of medical bills. The last thing you want to think about is how you are going to pay for the expenses, including prescription medications. Although navigating the Louisiana workers’ compensation system can prove challenging and frustrating, it is essential that you understand its nuances in order to ensure you are reimbursed for your expenses. 

Darvel Burgess suffered a work-related injury in October 2008. His employer, the Sewerage and Water Board of New Orleans (“S&WB”), paid for only some of his medical bills. Burgess filed a claim with the Louisiana Office of Workers’ Compensation (“OWC”) against S&WB. One part of Burgess’ claim was for payment of $13,110.02 in prescription bills owed to Burgess’ “choice of pharmacy,” the Injured Workers Pharmacy (“IWP”). Burgess also requested payment of attorney’s fees for S&WB’s failure to timely pay the bill owed to the pharmacy. 

In response to Burgess’ claim, S&WB provided two letters. An October 10, 2011, letter sent from S&WB to “All Injured Workers” stated that Corvel Caremark Pharmacy Program was S&WB’s approved pharmacy provider. An April 12, 2012, letter from S&WB to IWP stated that IWP was not an approved pharmacy provider and that the pharmacy should not accept prescriptions from S&WB’s injured workers since they would deny any bills the pharmacy submitted for payment. 

41-Email-05-22-19-1024x772In deciding whether to dismiss a specific case, the Appellate Court should consider many factors. Among them are subject matter jurisdiction and statutory of limitation. The claims might be dismissed if they are filed to a wrong court which does not have the legal power to adjudicate on this case, or if they are filed too late (peremption) because laws encourage people to file a lawsuit timely. 

In 1996, Leonard Bracken (“Bracken”) exposed himself to sulfur mustard, widely known as mustard gas, at a facility which was owned by Georgia Gulf Corporation in Plaquemine, Louisiana. Bracken agreed to a global settlement. On October 27, 1999, a workers’ compensation judge (“WCJ”) approved the settlement. Bracken alleged that when he signed on the settlement, he had no idea that the settlement would deprive his right to file any workers’ compensation claims in the future and this is because his former attorney deliberately misled him. On February 2, 2015, Bracken filed a petition in the Nineteenth Judicial District Court (“19th JDC”),  seeking to vacate the WCJ’s approval of the settlement and grant his right to file any workers’ compensation claims arising from the bad accident in 1996, because this is a judgment obtained by fraud or ill practice. Bracken listed various parties as defendants, e.g. Georgia Gulf Corporation and Worker Compensation Tribunal. In response, defendants timely filed exceptions raising the objections of, among other things, lack of subject matter jurisdiction, prescription/peremption and sanctions. On June 1, 2015, after a hearing was held, the 19th JDC held that all the exceptions were sustained and Bracken’s petition was dismissed. Then the 19th JDC dismissed Bracken’s motion for a new trial but granted Bracken a devolutive appeal (in which the appellate courts can determine on some issues while the trial court continue on other issues, rather than suspend).

The jurisdiction of the subject matter is a court’s legal authority and power to hear, analyze and make judgment regarding a particular class of cases. La. C.C.P. art. 2. Even if both parties reach an agreement to give a court the legal power to hear their case, this agreement is not valid at all. A judgment by a court which has no power to hear a case is not valid. La. C.C.P. art. 3. To invalidate a judgment which is reached by ill practice or fraud, the case should be filed to the court which made that judgment. Bracken’s settlement was approved by the Office of Workers’ Compensation Administration (“OWCA”), not 19th JDC, so Bracken should file this lawsuit to OWCA. In addition, all claims which arises from the Louisiana Workers’ Compensation Law may be filed to OWCA, since WCJ have the exclusive and original jurisdiction. La. R.S. 23:1310.3(F)

68-Email-05-22-19-picture-1024x683Often workers’ compensation claims focus on the nature of the injury that one argues makes them eligible to receive workers’ compensation benefits. However, in situations where there is more ambiguity surrounding one’s employment status, there can be an additional difficulty in determining if one’s employment classification makes one eligible to receive workers’ compensation benefits.

Filiberto Serna, Jr. (“Decedent”) died in a construction accident in September 2013 while attempting to move multiple trailers located at a United States Navy facility in Belle Chasse, Louisiana. When the accident occurred, the Decedent was being paid by Filser Construction, a subcontractor of Aries Building Services, Inc. The Decedent’s wife and minor child brought a workers’ compensation case against Aries, but the Office of Workers’ Compensation (“OWC”) found in favor of Aries. Specifically, the OWC found that there was insufficient proof of an employee-employer relationship with Filser such that Aries was the Decedent’s employer. OWC also found that the Decedent was a partner of Filser. The wife and child appealed.

On appeal to the Fourth Circuit Court of Appeal, the first issue was whether the Decedent was a business partner of Filser or an employee under the Louisiana Workers’ Compensation Act. In the context of workers’ compensation, an injured worker is considered a business partner when he or she shares in the profit or loss of the partnership. However, a partner can still be considered an employee of a partnership to which he belongs.

44-Email-1024x723If injured at work, many people will turn to a lawyer to learn about the legal options and damages available to them. Yet, a good lawyer can do more than just obtain damages, such as negotiate with the employer to facilitate accommodations needed in order to return to work. 

Louisiana school teacher Dena Wempren was injured when a student pulled a chair out from under her, causing her to fall in a seated position. Ms. Wempren filed a “Disputed Claim for Compensation” which she later amended after being instructed by the School Board to return to work even though her pain management doctor had instructed otherwise. When a court-appointed doctor examined her, she was told she could return to work but only in a modified capacity. The School Board responded to the doctor’s findings by demanding she return to work, and Ms. Wempren was forced to comply or else lose some of her worker’s compensation. After returning to work, Ms. Wempren filed a third amended complaint when she felt her job demanded more than she was capable of given her injured condition.

At trial, the court looked at whether Ms. Wempren was able to work and if the School modified her work position enough to accommodate her injuries. The trial court sided with Ms. Wempren finding the job description Ms. Wempren was working under did not relay the physicality that would be required on the job, after she presented medical evidence which indicated she should not have returned to work without treatment. The School Board appealed the decision.

image-for-post-69-from-email-5-14-19-1024x384Offshore drilling platforms enable petroleum companies to access oil deposits beneath the ocean floor. Although these platforms are anchored to the sea floor, they are technically movable and can be relocated. Whether a platform is considered “immovable property” under Louisiana law became a central issue in a case involving an injured worker because different prescription periods apply to personal injury claims depending on the nature of the property at which the injury occurred.

 In 2002, McDermott, Inc. designed and delivered the Front Runner Spar, an offshore facility used for removing and processing petroleum from the seabed of the Gulf of Mexico, to Murphy Exploration & Production Company. Murphy affixed the platform to the sea floor at the edge of the continental shelf offshore from Louisiana. James Hefren was hired by Murphy as the lead operator. In June, 2011, Hefren was injured when he was struck in the face by the flange of a valve. He filed a lawsuit suit against Murphy for negligence under the Jones Act, as well as specifically alleging that McDermott failed to properly design and construct the facility. The U.S. District Court for the Western District of Louisiana entered summary judgment for Murphy, dismissing Hefren’s tort claims as barred by the exclusive remedy provision of the Longshore & Harbor Workers’ Compensation Act.

McDermott filed a motion for summary judgment arguing that Hefren’s claims were barred by Louisiana’s rule that actions arising out of deficiencies in construction or design must be brought within five years after the date the property was accepted by the owner. See La. R.S. 9:2772. Holding that the Front Runner Spar was an “immovable object” under Louisiana law, and considering that nine years had passed between Murphy’s acceptance of the facility and the date Hefren’s lawsuit was filed, the district court dismissed the claim against McDermott.

image-for-post-68-from-email-5-14-19-1024x683What happens when a person is injured due to a company’s negligence and the company is based outside of the United States? The plaintiff generally must file a lawsuit in federal court, but there are certain jurisdictional requirements that have to be met. A plaintiff’s ability to file a lawsuit against an international company in a U.S. district court depends on how much “contact” the company has with the United States.

Danny Patterson, a U.S. citizen, was working aboard the Luxembourg-flagged vessel M/V Simon Steven off the coast of Russia when he was struck by a cable and sustained injuries. He sued his employer and the several other companies involved in the project, including Aker Subsea (“Aker”) and FMC Kongsberg (“FMC”), for damages in the U.S. District Court for the Eastern District of Louisiana. Both Aker and FMC moved to dismiss the petition for lack of personal jurisdiction, and after jurisdiction discovery, the district court found that jurisdiction over the defendants did not exist and granted the motions to dismiss. Patterson then sought to have the district court’s decision certified as final so he could appeal to the U.S. Court of Appeals for the Fifth Circuit. See Fed. R. Civ. P. 54(b). Meanwhile, FMC was dismissed from the case through a separate motion which went unopposed by Patterson.

Before the Fifth Circuit, Patterson argued that Aker had sufficient contacts with the United States to establish general personal jurisdiction. See Fed. R. Civ. P. 4(k)(2). He pointed to the fact that Aker had entered into multiple secondment agreements involving a U.S. location. Secondment agreements are used when an employee is temporarily assigned to work for another organization, or a different part of the organization, by their employer. In this case, Aker’s agreements spanned a three-year period of time, concerning employees working in Houston, Texas. Patterson argued that the employees assigned in Houston for a three year period established sufficient contacts for federal jurisdiction. 

image-for-post-50-from-email-5-22-19We often hear that insurance companies are stingy and heartless. Though some descriptions of insurance companies are exaggerated, it is nevertheless true that insurance companies are judicious in paying out claims. In some cases, an insurance company will attempt to avoid payment at almost any cost.  

Shawn Verges, a special education teacher at Fannie C. Williams Charter School in New Orleans, Louisiana, suffered injuries when she was repeatedly slapped and pushed to the floor by one of her students during class. Following the incident, Verges sent a text message to the school principal’s administrative assistant describing the attack and requesting an accident report. Verges made several more requests for an accident report, but the school never created one. Within a week, Verges began to experience back, head, and neck pain, at which point she sought compensation from her employer’s workers’ compensation insurance carrier, AmTrust North America. AmTrust denied her claim on the basis that the school did not file an accident report or report the incident to AmTrust.

Verges then filed a disputed claim form against AmTrust. The trial court determined that Verges was entitled to workers’ compensation benefits because the evidence showed that she suffered an injury while in the course and scope of her employment. AmTrust appealed, arguing that Verges fabricated the incident, pointing to the fact that that Verges returned to work after the alleged injury to bolster their argument. 

image-for-post-26-1024x791What’s wrong, Lassie? Did Timmy fall down the well in Red River Parish? No? It was John Cantu who fell in the well, because of someone’s negligence? Let’s let Louisiana’s Second Circuit Court of Appeal figure this one out.

John Cantu, a truck driver, made a delivery to a well site owned by Encana Oil & Gas and operated by Schlumberger in Red River Parish. Cantu had to climb up a short stairway to a Schlumberger trailer in order to have the delivery receipt signed. While attempting to climb up the staircase, he fell down a hole and injured himself. Cantu claimed the hole represented an unreasonable risk of harm and that Schlumberger had neglected to fix the hole. On October 2, 2013, after filing a lawsuit, Cantu settled with Schlumberger out of court; Cantu agreed to release Schlumberger from all liability following the accident in exchange for a cash settlement of $375,000. Following this settlement — which is also known as a compromise — Cantu and Schlumberger jointly filed a final motion to dismiss the case on October 24, 2013.

However, one day earlier, on October 23, 2013, Cantu had filed a supplement and amended petition in which he named Encana as a defendant. In his amended petition, Cantu alleged that Encana allowed a dangerous condition to exist at their drill/work site. On February 26, 2014 Encana sought dismissal on the theory that the trial court no longer had jurisdiction over the case because the filed order for dismissal by Cantu and Schlumberger had the effect of a final judgment; such a final judgment was not subject to alteration by the trial court. Encana cited the October 24 motion to dismiss as evidence that the case had been settled between Cantu and Schlumberger and had been dismissed by those parties. The trial court agreed with Encana and dismissed Cantu’s amended petition. Cantu then appealed this decision to the Second Circuit.

builders-building-construction-159306-1024x683The Louisiana statutory employer defense grants statutory employers the exclusive remedy protections of the Louisiana Workers’ Compensation Act. La. R.S. 23:1061. To become a statutory employer, a principal must enter into a written contract with a contractor for work to be performed in furtherance of the principal’s “trade, business, or occupation.” La. R.S. 23:1061 Moreover, where the principal pays compensation, it is entitled to indemnification from the contractor. La. R.S. 9:2780.1. Once an employer shows that they are a statutory employer under the law, they are entitled to immunity for tort liability that occurred in the course of the agreement with a contractor. The Louisiana Court of Appeal addressed the issue of whether a statute enacted in 2010 negates the statutory employer defense when a construction contract contains an indemnification clause or a hold harmless clause without paying for any of the cost of insurance. La. R.S. 9:2780.1.

In 2013, Christopher Michael Blanks (“Mr. Blanks”), was an employee of Wastewater Specialties, Inc. (“Wastewater”), the contractor, when he and some co-workers were assigned to perform repairs to a broiler at Entergy Gulf States Louisiana, LLC (“Entergy”), the statutory employer. Entergy issued a permit indicating the work area was safe for entry; however, they allegedly failed to inform Mr. Blanks and his co-workers of an unprotected open hole in a confined space where Mr. Blanks was working. Unfortunately, Mr. Blanks unknowingly stepped into the hole, causing him to fall approximately thirty (30) feet to the ground. He sustained serious injuries, and subsequently sued Entergy and its insurance.

Prior to the commencement of work at the Entergy facility, Wastewater and Entergy entered into an agreement that Entergy would be indemnified for personal injury claims brought by Wastewater employees. The trial court granted summary judgment on the grounds that the contract between Wastewater and Entergy was invalid and unenforceable because it provided an indemnity clause irrespective of fault. Additionally, the court noted Wastewater did not recover the cost of any insurance required under the contract.