Articles Posted in Workers Compensation

Direct 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.

Workers’ 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.  

Workers 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.

Employers and workers’ compensation insurance companies are continually looking for ways to cut their workers’ compensation claim amounts. For the injured employee, a workers’ compensation claim is a new process. But for the employer and insurance company reducing costs is a continual process. This litigation can even continue to happen years after winning an initial award. This was the case for a Parish of Lafayette employee in a recent case in the Louisiana Third Circuit Court of Appeal. Doctor examinations and testimony about an injury can always be required and, as in this case, improvement of an employee’s condition for the better can call for a reduction in workers’ compensation benefits.

Viel Olivier was a self-employed carpenter who was injured in 2003 while unloading a miters saw from his truck. He had contracted with LUBA Workers’ Compensation for his workers’ compensation insurance. Initially, Mr. Olivier was determined to be temporarily and totally disabled and was awarded workers’ compensation benefits.

LUBA later filed a motion to modify Mr. Olivier’s benefits because LUBA believed that Mr. Olivier was capable of light duty work and was no longer temporary and totally disabled from the injury. Mr. Olivier objected to this change and argued that LUBA was unable to meet its burden of proof with regard to a change in circumstances because the evidence was essentially the same as it had been at the previous hearing.

The workers’ compensation system exists to compensate employees when a work-related accident occurs.  Frequently, however, employers will attempt to deny or at least curtail benefits.  One common tactic is to blame an employee’s injuries on a pre existing medical condition rather than the work accident.  But does this excuse really work when a tree falls on an employee’s head?  As far fetched as it sounds, this was the scenario when an Ouachita Parish employer attempted to stop paying benefits after a tree accident.  

Bruce McCoy worked as a driver and groundsman for W.A. Kendall & Co., Inc. (“Kendall”). Mr. McCoy’s duties included cutting and dumping trees and tree limbs. While at work cutting trees,  a tree fell on Mr. McCoy causing a head injury. He needed treatment for headaches, neck pain, and a skull fracture. Doctors differed as to whether he could return to work and at what capacity. Once it was determined that Mr. McCoy could return to work with certain restrictions, Kendall offered him a job as a groundman.  Mr. McCoy did not respond however and Kendall terminated benefits.  A few months later, Mr. McCoy did request to return to his old position, however, he was denied.  Kendall’s vice-president opined that the denial was based upon Mr. McCoy’s possible inability to do the necessary work of a groundsman. Mr. McCoy then filed a claim for supplemental earning benefits (SEBs). The Workers’ Compensation Judge (WCJ) awarded $18,821.89 to Mr. McCoy in SEBs. Kendall appealed to the Louisiana Second Circuit Court of Appeal arguing that Mr. McCoy’s ongoing disabilities were actually the result of preexisting conditions because Mr. McCoy had diagnosed scoliosis.  

Workers’ compensation benefits are available to an employee for injuries sustained from an accident arising out of and in the course of employment pursuant to La. R.S. 23:1031(A).  A causal connection between accident and injury is established when an employee can demonstrate that before the accident they were in good health and post accident they have a disabling condition demonstrated by medical evidence supporting a reasonable possibility of a causal connection.  See Quinones v. USF & G, 630 So. 2d 1303 (La. 1994).  A pre-existing condition does not automatically bar benefits; the employee must show the accident aggravated the condition. See Peveto v. WHC Contractors, 630 So. 2d 1303 (La. 1994). Aggravation can be shown by a new disabling condition occurring at the time of the accident and supported by medical evidence.  

A lawsuit out of Lafayette Parish demonstrates how Louisiana law allocates workers’ compensation benefits. To qualify for benefits, an employee must be injured during the course of employment. Temporary Total Disability (TTD) Benefits are paid while the employee is unable to work due to an injury. Supplemental Earnings Benefits (“SEB”) are a bit more technical. SEBs are paid when the injured worker has reached “maximum medical improvement” and is no longer eligible for TTD, but is incapable of earning 90% of pre-accident wages.

Our case begins on August 16, 2006, when Ronald Leleux, a carpenter for Numa C. Hero & Son (“Numa Hero”), was injured on the job while trying to escape from a swarm of wasps. About eight months following the accident Leleux was awarded TTD (the “consent judgment”). On November 18, 2010, Leleux consulted Dr. Daniel Hodges for pain management. Nearly two years later Leleux met with Dr. Douglas Bernard, who was recommended by Numa Hero. Dr. Bernard’s report indicated that Leleux had benign degenerative disk disease and that Leleux could perform unrestricted work activities. On August 7, 2013, Leleux saw a third doctor who was appointed by the Workers’ Compensation Judge (WCJ), Dr. Christopher Belleau. Dr. Belleau testified in a deposition that Leleux had reached maximum medical improvement and was capable of sedentary work. Less than one year after Dr. Belleau’s deposition, Numa Hero filed a motion asking to modify the earlier consent judgment. During the trial on the motion, the WCJ considered Leleux’s testimony, Dr. Belleau’s deposition, and the records of Dr. Bernard and Dr. Hodges. The WCJ issued a judgment modifying Leleux’s benefits from TTD to SEB. Displeased with the outcome, Leleux appealed the WCJ’s modification to the Louisiana Third Circuit Court of Appeal.

Pursuant to La.R.S. 23:1221(1)(d), when a claimant’s condition has stabilized and treatment is no longer required, TTD is not appropriate and a determination regarding the extent of the claimant’s disability must be made. See Navarre v. K-Mart, 803 So.2d 206 (La. Ct. App. 2001). La.R.S. 23:1310.8 sets forth the WCJ’s authority to modify compensation awards. Two provisions of La. R.S. 23:1310.8 were at issue in this case: subsection (A)(1), which applies to a reclassification of benefits, and subsection (B), which applies to a change in the amount of compensation or a request to end the payment of benefits.