Articles Posted in Workers Compensation

craftsmen-1438652-1024x683A 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.

arabic-pharmacy-1549734-768x1024When you get hurt on the job, it is common to seek workers’ compensation benefits to help with the costs of your injury.  However, the employer will likely at some point seek to diminish or cease payment altogether. In a recent case out of the Parish of Calcasieu, we learn just how far an employer must go in helping a former employee find a replacement job before reducing benefits.

Kenneth Clark was working as an assistant manager at Walgreens in Moss Bluff when he hurt his back.  A visit to Dr. Erich Wolf and an MRI revealed three herniated disks. After undergoing a discectomy and epidural steroid injections, Dr. Wolf released Mr. Clark to work eight hours per day at light to minimal-medium duty. Later, Mr. Clark was determined to have reached maximum medical improvement.

Walgreens voluntarily paid Mr. Clark Temporary Total Disability (TTD) benefits equaling his average weekly wage of $727.37. Once Mr. Clark reached maximum medical improvement, Walgreens changed Mr. Clark’s TTD benefits to Supplemental Earnings Benefits (SEB) to a weekly rate of $244.89 based on Mr. Clark’s wage earning capacity of $360.00. Mr. Clark then challenged the reduction of his benefits and sought penalties and attorney fees.

compensation-1444901-1-1024x798It’s always bad when you get injured. But it is even worse when you have no insurance coverage for that injury. Recently, a St. Tammany Parish man experienced both incidents when he was injured on the job and realized that his employers were not covered by workers’ compensation insurance.

After Edward Jones suffered an injury while on the job, he sued his employer Clesi Foundations, L.L.C. for workers’ compensation benefits. Workers’ compensation pays for an employee’s medical expenses and lost wages when an employee is injured on the job. At trial, the court awarded Mr. Jones benefits, penalties, and attorney fees because Clesi Foundations L.L.C. failed to defend against Mr. Jones’s claim. After receiving a judgment against Clesi Foundations L.L.C., Mr. Jones discovered that his employer’s workers’ compensation coverage was underwritten by American Interstate Insurance Company (“American Interstate”). When a workers’ compensation policy is underwritten, that means another company, in this case, American Interstate, guarantees the payment of the damages assessed in a workers’ compensation case. Mr. Jones then filed a case against American Interstate for the amount of damages the trial court assessed against Clesi Foundations L.L.C.

At trial, Mr. Jones filed a motion for summary judgment. Summary judgment is a legal proceeding where both parties in a lawsuit ask the court to decide the case prior to it going to trial. In his motion, Mr. Jones alleged that American Interstate provided workers’ compensation insurance coverage to Clesi Foundations during the time he was injured. American Interstate claimed that it canceled its coverage of Clesi Foundation L.L.C. and provided notice of cancellation fifteen days prior to Mr. Jones’s injury. The Workers’ Compensation Judge (“WCJ”) found in favor of American Interstate.

oil-refinery-1240489-1024x599Often, the facts of a lawsuit are unclear. One strategy that lawyers often use to prove their version of events is to use an expert witness to corroborate their side’s story. Expert witnesses are individuals who possess knowledge in a field or area that the average person knows little to nothing about. Frequently, both sides in a lawsuit end up utilizing experts who often times have differing opinions about the facts surrounding the lawsuit. But how does a judge or jury determine which expert is correct? Recently, the Fifth Circuit Court of Appeal for the State of Louisiana addressed these questions in a workers’ compensation case.

David Allensworth worked for two different companies, Gulf South Systems (“GSS”) and Grand Isle Shipyard (“GIS”) as a cleaner, cleaning storage tanks containing gasoline, crude oil, diesel fuel, and condensate. One day, Mr. Allensworth visited an urgent care center with complaints of abdominal pain and weight loss. A CT scan revealed a large abdominal mass which was later diagnosed as non-Hodgkin’s lymphoma. A cause of non-Hodgkin’s lymphoma is toxic exposure to benzene with is contained in crude oil and gasoline. Mr. Allensworth filed a lawsuit against GSS and GIS for workers’ compensation benefits claiming that his exposure to benzene while working for the companies caused his non-Hodgkin’s lymphoma. Workers’ compensation pays for an employee’s medical expenses and lost wages when an employee is injured on the job.

At trial, Mr. Allensworth submitted the sworn statement of Dr. Jack Saux as an expert oncologist. Dr. Saux concluded that Mr. Allensworth’s non-Hodgkin’s lymphoma was caused by toxic exposure to benzene, which most likely happened when Mr. Allensworth cleaned his employers’ storage tanks. GIS and GSS countered with its own medical expert, who testified that though there is some association between benzene and lymphoma, there is no evidence that benzene exposure caused Mr. Allensworth’s non-Hodgkin’s lymphoma. The Workers’ Compensation Judge (“WCJ”) concluded that Mr. Allensworth did not prove that his disease was a result of his employment. In doing so, the WCJ noted that Dr. Saux based his opinion on Mr. Allensworth’s statement in which Mr. Allensworth claimed he only wore a regular shirt and overalls while cleaning the tank. It was based only on this statement, and not on an examination, that Dr. Saux concluded that exposure to benzene from Mr. Allensworth’s job likely caused Mr. Allensworth’s disease. The WCJ also noted that the testimony of GIS and GSS’s expert stated that Mr. Allensworth did wear protective equipment when cleaning the tanks.

billiard-2-1434095-1024x683When an employee is injured in the course of his or her job, then the employee will receive wage replacement and medical benefits in the form of workers’ compensation. Workers’ compensation takes the place of a lawsuit an employee can bring when he or she is injured on the job by someone’s negligence. Because employers are responsible for providing a safe work environment, it stands to reason that employers are responsible when that environment is unsafe. While workers’ compensation provides a necessary service to injured workers, there are always those who would try to take advantage of the system. This struggle to try to provide for those who are legitimately injured while at work and deny claims for those who try to defraud the system gives rise to a complex body of law. One reoccurring issue that often surfaces in workers’ compensation cases is whether an employee is injured while on the job. Recently, the Fifth Circuit Court of Appeal examined this issue when determining whether an employee for a pool table installing company injured his back while on the job.

Nunzio Galiano worked for Lucky Coin Machine Company (Lucky Coin) as a pool table installer. Mr. Galiano was regularly required to lift and move large objects during the course of his duties, including 200-pound slates for pool tables. In August of 2013, Mr. Galiano began to experience pain in his lower back. He did not tell his employer about the pain until he could no longer stand it. Mr. Galiano hesitated to inform his employer of the extent of his back pain because he feared being fired if he told the whole truth. When Mr. Galiano finally went to a doctor, the doctor told him that the pain was not caused by kidney issues, which Mr. Galiano had assumed to be the cause prior to the doctor visit, but rather sacroiliac (SI) joint dysfunction. When told that Mr. Galiano’s work environment involved heavy lifting, the doctor indicated that there may be a connection between that and the bad back. Mr. Galiano then filed for and was awarded, workers’ compensation benefits. Mr. Galiano’s employer, Lucky Coin, appealed this decision arguing that Mr. Galiano’s injury was not caused while he was on the job.

Louisiana law requires that an employee prove 1) that there is an injury, 2) arising out of the employment, 3) caused by an accident, and 4) that the injury is more than simply a gradual deterioration or progressive degeneration. La. R.S. 23:1031 (2016). An employee bringing a workers’ compensation claim is only required to prove the injury more likely than not occurred while the employee was on the job. Marange v. Custom Metal Fabricators, Inc., 93 So.3d 1253, 1257 (La. 2012).

sprinkler-1316192-1024x681Accidents can happen at any time, even at work.  Sometimes these accidents can aggravate a pre-existing injury.  In a claim for workers’ compensation benefits, employers may use the existence of an old injury to deny payment of benefits despite a clear work accident with medical repercussions.  This was the case for a government employee in Winnsboro, Louisiana.   

Mr. Jay Marshall was an employee of the Town of Winnsboro’s water department for 33 years where he worked as a supervisor. For years he had back pain from injuries but always sought treatment and returned to work.  Mr. Marshall had been taking pain medication since 2002.  On November 2012, while working with his crew, Mr. Marshall pulled a rod out of the ground,  hurt his back,  and was unable to work the rest of the day.  After the accident, Mr. Marshall went to his physician, Dr. Roland Ponarski, complaining of back pain.  Dr. Ponarski did not recall Mr. Marshall mentioning a recent work accident during the visit.  Mr. Marshall was referred to neurosurgeon Dr. Bernie G. McHugh. Mr. Marshall provided a patient history to Dr. McHugh which included back pain from a work injury originating in the 1990s.  Dr. McHugh opined that someone with a disease like Mr. Marshall’s should only be performing sedentary work and that the most recent workplace injury in conjunction with his degenerative disease certainly worsened the pain.  Risk Management, Inc., the worker’s compensation adjuster for Winnsboro, sent Mr. Marshall to Dr. Jorge Rodriguez for a second opinion in 2013.  Dr. Rodriguez concluded that no surgery was needed and that over the counter pain medication was enough if Mr. Marshall was restricted to light duty work.  

In January 2013, Mr. Marshall filed an injury report on the November 2012 accident with Winnsboro.  Risk Management denied Mr. Marshall’s claim, did not pay an indemnity and did not provide for any medical treatment. Subsequently, Mr. Marshall filed a dispute with the Office of Workers’ Compensation. The Workers’ Compensation Judge (“WCJ”) found Mr. Marshall was entitled to temporary disability benefits beginning September 2013, covering supplemental earning benefits, as well as $500 as a penalty and $2000 in attorneys fees.

supermarket-kart-1-1413356-1024x683In any lawsuit, the party seeking relief must carry its burden by proving every element of the claim or claims which it has raised. By doing so, the party satisfies to the court that it is entitled to the relief which it seeks. One such element pivotal to all claims for workers’ compensation benefits is that the alleged injury arose out of and during employment.  Proving a work-related injury solely on the injured person’s testimony can, however, doom a workers’ compensation case. This is a lesson that workers’ compensation claimant Isaac Garcia, who worked for Rouses Market in Metairie, Louisiana, learned the hard way.

In early November of 2013, Mr. Garcia filed a claim for failure to pay benefits, naming both Rouses Enterprises, Inc., as well as its insurer, Strategic Comp, for a work-related injury he allegedly sustained while working for Rouses Market in Metairie. Mr. Garcia claimed that on September 15, 2013, while moving a box during work he felt a sharp and immediate pain, beginning in his wrist and right thigh, and radiating to his lower back. The incident was not witnessed by anyone other than Mr. Garcia himself. Mr. Garcia returned to work for a brief period, but left work shortly after the incident.  Mr. Garcia failed to inform his supervisor of the injury out of fear of termination. This was in direct violation of Rouses’ policy which required all on the job injuries to be reported immediately.

In the days that followed, Mr. Garcia spoke with his supervisor over the phone but again failed to mention the injury sustained on September 15. On September 20, the day before Mr. Garcia’s next shift, the pain had escalated to the point that Mr. Garcia considered seeking medical attention at the emergency room, but decided to consult an attorney first. The attorney referred Mr. Garcia to a doctor who found Mr. Garcia’s condition consistent with lumbar disc displacement. Mr. Garcia saw a second doctor in relation to medication for pain management. Finally, on September 24, 2013, more than a week after Mr. Garcia’s injury and subsequent to seeking medical treatment, Mr. Garcia returned to Rouses and filled out an accident report in relation to the September 15 injury. Yet Mr. Garcia failed to disclose neck and back injuries he sustained approximately a year and a half prior to being hired by Rouses. Ultimately, Rouses and Strategic Comp denied Mr. Garcia any form of workers’ compensation benefits. The claim was submitted to the Workers’ Compensation Judge (“WCJ”) who found Mr. Garcia was not entitled to benefits, a decision which was later upheld by the Louisiana Fifth Circuit Court of Appeal.

big-toys-4-big-boys-1435926-1024x744Workers’ compensation pays for an employee’s medical expenses and lost wages when an employee is injured on the job. But what happens when an employee is injured while performing his or her job in a manner not approved of by the employer? Recently, a Court of Appeal for the State of Louisiana addressed this issue in a case involving a man from St. Landry Parish.

Herbert Marshall, an employee for Courvelle Toyota, injured his back picking up an automobile transmission during work. Mr. Marshall was directed to take a truck with a liftgate, pick up a transmission from a repair shop, and deliver that transmission back to the dealership. He was instructed to take the lift gate truck because the transmission was over four hundred pounds. Mr. Marshall took a standard van instead, claiming that the liftgate was not working on the truck. When Mr. Marshall arrived at the repair shop, he enlisted the help of a repair shop worker to lift the transmission into the van. It was during this lifting where Mr. Marshall felt a “pop” in his back. When he returned to the dealership, Mr. Marshall was helped by another employee to unload the transmission. Mr. Marshall made no mention of his back pain to anyone that day.

Mr. Marshall reported the accident to his boss days after the injury. After reporting the accident, Mr. Marshall saw several doctors and underwent several different treatments. Mr. Marshall also received multiple drug tests. On two drug tests, he tested positive for cocaine. Mr. Marshall claimed that these tests were a false positive and that the test actually picked up his use of lidocaine for his tooth pain. On subsequent tests, Mr. Marshall tested negative to having cocaine in his system. Mr. Marshall requested workers’ compensation benefits from Courvelle Toyota to pay for his medical bills and lost wages. Courvelle Toyota denied those requests citing the fact that Mr. Marshall did not use the lift gate truck as instructed by Courvell Toyota. Mr. Marshall then filed a disputed claim for benefits with the Office of Workers’ Compensation, where he sought wage benefits, medical treatment, penalties, and attorney fees.

thick-metal-welding-mask-for-protecting-the-eyes-1632419-1024x784Under Louisiana law, an employee who is injured while on the job is entitled to “vocational rehabilitation services” (services that help an individual overcome his or her own physical or mental disability in order for that individual to return to work) provided by a vocational rehabilitation counselor. La. R.S. 23:1226 (2016). While an injured employee is entitled to a vocational rehabilitation counselor, is the employee able to dictate his or her own rules and requirements that the vocational rehabilitation counselor must follow? And if an employee is unhappy with the performance of his or her vocational rehabilitation counselor, then what can he or she do to remove that person?

Ellis Hargrave was injured while working for the Louisiana Department of Transportation and Development (“DOTD”). After the injury, DOTD began providing vocational rehabilitation services to Mr. Hargrave. After juggling multiple vocational rehabilitation counselors, DOTD finally settled on assigning Elier Diaz to Mr. Hargrave. Before their first meeting, Mr. Hargrave’s attorney sent a letter containing ten conditions that Mr. Diaz had to agree to before Mr. Hargrave would allow counseling services. The purpose of these conditions was to make Mr. Diaz put Mr. Hargrave’s interests over the interests of DOTD. Mr. Diaz declined to agree with the ten conditions. Mr. Diaz sent a letter to Mr. Hargrave, explaining that he will uphold the standards of the applicable law but declined to agree to any of the extra standards or conditions demanded. Even though the parties disagreed about the ten conditions, an initial evaluation meeting took place with Mr. Diaz, Mr. Hargrave, and Mr. Hargrave’s attorney. The disagreement over the ten conditions eventually led to litigation. This issue eventually ended up at the Supreme Court of Louisiana where it held that nothing in Louisiana law required that a rehabilitation counselor must agree to certain conditions prior to providing vocational rehabilitation services. Hargrave v. State, 100 So.3d 786, 793 (La. 2012).

While the long litigation process over one issue ended, another one soon began. Mr. Hargrave filed another claim with the Workers’ Compensation Judge (“WCJ”) asking the WCJ to remove Mr. Diaz as vocational rehabilitation counselor because Mr. Diaz violated Louisiana law. At trial, Mr. Hargrave asserted that Mr. Diaz violated Louisiana law when he met with DOTD without allowing Mr. Hargrave or his counsel to attend and that Mr. Diaz violated Louisiana law when he stated that Mr. Hargrave and his attorney agreed to the meeting. The WCJ disagreed, holding that Mr. Diaz did not violate Louisiana law. Mr. Hargrave appealed.

concrete-tiles-1140575-575x1024Be it alleged abuses in the welfare system or lying on their tax return, individuals abusing the system has been a hot button issue for the past couple of years. But what happens when someone gets caught? How does the law handle the people who abuse the system? Recently, a Louisiana Court of Appeal held that concealing previous injuries resulted in a forfeiture of workers’ compensation benefits (insurance that pays wages and medical costs for an injury occurring while at work) and the payment of restitution (compensation ordered by the court for restoration of money to its rightful owner) for a Saint Martinville concrete finishing business owner.

Darrell Wiltz is the sole owner of Wallace Wiltz Concrete, Inc. He worked as both the manager of the business and as one of the laborers for the company. On October 21, 2009, Mr. Wiltz was lifting a tool used in the concrete finishing business when he allegedly injured his lower back. He filed a claim with LUBA, the workers’ compensation insurance provider for Wallace Wiltz Concrete. Initially, LUBA only paid for some of Mr. Wiltz’s medical treatment and did not pay any wage benefits. But after Mr. Wiltz inquired with LUBA why all of his medical treatment and wage benefits were not being paid, LUBA sent an adjuster to record a statement from Mr. Wiltz. In the statement to the adjuster, Mr. Wiltz admitted to previously having one minor back injury. He also denied being in any vehicle accidents. Based on these statements, LUBA began approving all the medical treatment benefits and started paying Mr. Wiltz total temporary disability benefits.

On April 6, 2010, LUBA performed a claim index search on Mr. Wiltz which revealed that Mr. Wiltz had been involved in at least two vehicle accidents. LUBA then obtained Mr. Wiltz medical records which indicated that Mr. Wiltz had undergone at least three MRI’s of his lower back due to complaints of pain. The medical records also indicated that Mr. Wiltz had various disc issues such as bulges or herniations in his lower back and one medical provider diagnosed him with lumbar disc disease.