Workers Compensation

March 15, 2023

What is a “dilatory exception of prematurity,” and how does it change the course of a case or controversy?

toronto_skyline_early_morning-1024x577 A dilatory exception for prematurity is defined in the Louisiana Code of Civil Procedure Article 926(A). There are many reasons why a lawsuit may be premature, or in other words, ripe for a dilatory exception of prematurity. A case may be premature when it is too early in a dispute for the court to have the authority to rule on it. A lawsuit may be premature if there is another administrative body that the case should go to beforehand. The legal issues of prematurity and dilatory exceptions are shown below in a lawsuit from St. Tammany parish.

A Nestle Holdings employee was injured during his employment, and Nestle received a large bill from Lakeview Regional Medical Center (LRMC) for surgery on the employee. Nestle responded by sending back about 10% of the original price, expecting LRMC to initiate an administrative action, which would give Nestle a chance to argue for a lesser price. However, when LRMC did nothing to protest the partial payment, Nestle filed a complaint with the Office of Worker’s Compensation (OWC), a judicial body. OWC rejected the complaint and granted LRMC’s claim of a dilatory exception of prematurity; Nestle appealed the OWC decision to the First Circuit Court of Appeals.

The First Circuit Court of Appeals upheld the OWC decision to dismiss the complaint due to prematurity. The court first examined Louisiana Code of Civil Procedure Article 926(A)(1), reasoning that it allows for a dilatory exception objection of prematurity to be brought before the litigation commences. The court held that this objection may be used in lawsuits where the law or contract allows for a procedure for the party to seek out administrative relief before resorting to filing a lawsuit. If this exception is raised, the person who raises it bears the initial burden of showing that another remedy or procedure applies, and therefore the lawsuit is premature. For example, this can be done by filing a copy of the contract between the parties into the record, assuming the contract discusses a prelawsuit procedure. After the existence of the alternative remedy is established, the burden then shifts to the other party to show that the specific remedy or procedure has been exhausted.

March 7, 2023

Can a Worker’s Compensation Claimant Receive Spinal Cord Stimulator Treatment in Louisiana?

by Berniard Law Firm

skeleton_bone_medical_doctor-1024x768 Injuries sustained on the job present challenges for the employee and employer, especially when multiple sites of injury are involved. In addition, injuries all over the body can require different medical treatments for each affected area. Specialized treatments such as a spinal cord stimulator can be recommended to alleviate pain to an injured worker. However, a workers compensation insurance company may not be amenable to pay for such treatment. The following case addresses the question, can a workers compensation claimant receive spinal cord stimulator treatment in Louisiana?

Byron Gulley sustained injuries to his head, shoulder, wrist, back, knee, hip, foot and ankle as a result of a golf cart accident while working for the Hope Youth Ranch in June 2009. The claimant was seeing a pain management specialist, Dr. Chad Domangue, who recommended a spinal cord stimulator trial because other medications and treatments failed to address Gulley’s significant low back adequately, left hip, and leg pain. As such, Dr. Domangue filed the proper form requesting this treatment pursuant to the Medical Treatment Guidelines. This request was ultimately denied by the employer’s insurance carrier. Gulley brought the denial to the Medical Director of the Office of Workers’ Compensation, which also rejected the request and the Workers’ Compensation District two affirmed the denial.

Thereafter, Dr. Domangue continued to see and treat Gulley. Even though the spinal cord stimulator could not address all areas of Gulley’s pain, he believed it was the best option to treat his most significant pain areas. As such, he filed a second request, which was also denied by the employer’s insurance carrier. Gulley then sought approval for the procedure from the Medical Director, who again denied approval because the topography of the claimant’s pain was not amenable to stimulation coverage.

March 4, 2023

The Collateral Source Rule, What is it and How Does it Apply to Workers Compensation

by Berniard Law Firm

source_grass_lawn_water-1024x683 The Collateral Source Rule in Louisiana law prevents a tortfeasor (a person who harmed another) from benefiting from the victim’s receipt of funds from an independent source. So what does that mean?

Let’s say you were injured in a car wreck. As a result of your injuries, you have back surgery before the lawsuit settles. If you have health insurance, that surgery may be paid for by your health insurer. However, your health insurance company pays only part of the bill; they pay some agreed-upon amount with the medical provider. The collateral source rule allows the injured person to argue for the amount paid for the surgery plus 40% of the difference of the billed amount. An example is shown below:

Joe is injured in a car wreck, has health insurance, and undergoes a $100,000 back surgery by ABC Back Drs.

February 26, 2023

Workers’ Compensation Claim Denied For Failure To Seek Preapproval

by Berniard Law Firm

workers_construction_worker_work-1024x576 It can be a long road to recovery from a work-related injury. If you or a loved one suffered an injury on the job, it is crucial to understand the workers’ compensation system to comply with all the requirements to receive any compensation to which you are entitled.

Carl Gabriel worked as a “Ready Reserve” employee at Delta. Less than two months after he started working, he was injured when a tow bar fell onto his foot. After a dispute with his employer over indemnity payments, Gabriel filed a Disputed Claim for Compensation, Form 1008, with the Office of Workers’ Compensation (“OWC”). He asserted that Delta failed to pay indemnity benefits and timely pay and authorize medical benefits. There was a trial where Gabriel won, with the court finding that Gabriel was entitled to benefits from Delta.

Gabriel then filed a second Disputed Claim for Compensation, alleging that Delta had failed to pay the amounts owed to him under the prior judgment. He also sought penalties under La. R.S. 23:1201(F) and (G) for Delta’s failure to pay correctly. He also alleged that he was temporarily totally disabled again because of a worsening of his medical condition. Gabriel went to two physicians in Atlanta, Georgia, to deal with his worsening condition. Delta argued that neither Gabriel nor his physicians ever properly requested approval for the recommended treatment through Form 1010, submitted to Gabriel’s adjuster. Instead, Gabriel sought approval informally via fax.

February 24, 2023

Injured Worker Failed to Establish Disability Resulted From Work-Related Injury

by Berniard Law Firm

sparks_working_industry_metal-1024x711 What happens if you are hurt on the job? Not only do you have to deal with the physical effects of your injury, but you also have to navigate when it is safe to return to work. The workers’ compensation system is designed to aid injured workers. It can provide compensation for lost wages and medical treatment. However, it can often be complex to navigate.

This is the situation Eduardo Sanchez, an ironworker at MEMCO Inc., found himself in after he slipped from a metal beam while working. His safety harness caught him. Once safely on the ground, medical personnel at the worksite examined him, and he was sent home to rest. The next day, Sanchez reported to work and complained of a headache and pain in his back, neck, and testicle. He was sent home. Sanchez’s supervisor at MEMCO sent him to see a doctor. The doctor diagnosed Sanchez with a cervical and lumbar strain and released him to return to work “as tolerated.”

Two days later, Sanchez went to the emergency room complaining of chest, testicular, and lumbar pain. The emergency room doctor diagnosed him with lumbosacral strain, chest wall contusion, and a scrotal contusion. Sanchez returned to the doctor who first examined him. He released Sanchez to return to work on restricted duty “as tolerated.” About ten days later, Sanchez returned to the doctor, who discharged him to return to work “full duty.”

February 21, 2023

Can I sue my Employer if I was robbed while at Work in Louisiana?

by Berniard Law Firm

bandit_playmobil_shield_western-683x1024 It’s reasonable to want to feel safe at work, no matter your job. Employers must keep their employees free from unnecessary danger and generally provide a safe working environment. Even given this duty, the law doesn’t always hold them responsible for the actions of criminals. A recent lawsuit out of Lafayette discusses the principles court asses to determine what remedies are available to employees when crime happens.

Melody Smith (Smith), an employee of Circle K, was robbed at gunpoint by Marcus Sam while making a bank deposit for the store. After the incident, Smith filed a lawsuit and was eligible for workers’ compensation benefits. Workers’ Compensation is an exclusive remedy for accidents in the workplace. R.S. 23:1032(A)(1)(a).

Smith later filed an amended and supplemental lawsuit that claimed Circle K committed intentional torts of assault and battery on her because they created an environment for her to be robbed. Smith argued that because Sam overheard her manager telling her to make a bank deposit the robbery was inevitable. Circle K disputed Smith’s claims and filed a motion for summary judgment.

February 18, 2023

Injured Employee Argues New Orleans Trial Court Judgment was Premature due to Inadequate Discovery

by Berniard Law Firm

lever_metal_handle_door-1024x685 Imagine getting hurt on the job, seeking help from a good attorney, following all the court’s requirements, and still having all your claims denied because your opponent did not appear for a deposition. For Raymond Schultz (“Schultz”), an employee of Blanchard Contractors, this scenario became his reality after the District Court in Orleans Parish dismissed all his claims and denied his motion for a new trial.

Back in 2012, Schultz was injured in a work-related accident after he inadvertently touched an unmarked pressurized lever that spewed rust and slag, striking him in the stomach and knocking him into some nearby water from which he was later rescued. As a result, Schultz filed a negligence lawsuit against Cox Operating, L.L.C. (“Cox”) and Terry Vincent (“Vincent”) (collectively “Defendants”), alleging that each of the Defendants mentioned above fault caused his injuries.

Defendants countered Schultz’s claims using a legal argument. They argued that since Schultz was Cox’s statutory employee, this made him Vincent’s statutory co-employee, and Schultz’s sole remedy falls under the Louisiana Workers’ Compensation Act. Defendants argued this legal argument would cause his negligence claims to be effectively barred from the lawsuit. After the District Court heard motions on each side of these arguments, it allowed Schultz six months to conduct discovery to build his case for trial.

February 3, 2023

First Circuit Court of Appeal Affirms Decision That Employee Was Entitled to Compensation From Work Related Back Injury (Part 1)

by Berniard Law Firm

An employee suffering an injury at work can be concerning for both the employee and employer. This concern can be increased when the injury sustained at work is an aggravation of a previous injury. However, as one Louisiana individual discovered, providing solid evidence backing your workers’ compensation claim can be critical to the lawsuit.

Mrs. Alexander worked as an administrative assistant at Stupp Bros in Baton Rouge. On February 12th, 2015, Mrs. Alexander was asked to order toner for the printer. Mrs. Alexander had to obtain the serial number from the back of the printer to collect toner and kneel down to acquire the serial number. While kneeling down and pulling the printer off the wall, Mrs. Alexander felt a tear on her back. Mrs. Alexander fell over and was transported Mrs. Alexander to Prime Medical with some assistance.

While at Prime Medical, Mrs. Alexander was diagnosed with a lower back strain, given over-the-counter medications, and was given a release to return to work. Mrs. Alexander complained about pain and said she had undergone two previous back surgeries while visiting Prime Medical. Four days after the accident, Mrs. Alexander went to the emergency room at Lane Regional Medical Center. An M.R.I. performed on Mrs. Alexander revealed several issues involving a disc in her back.

January 28, 2023

Louisiana Man Denied Texas Workers’ Compensation Because He Was Not a Texas Employee

by Berniard Law Firm

texas_flag_texas_flag-1024x683 The importance of legal contracts cannot be understated. Though we generally sign contracts on social media or online shopping websites without ever looking at their provisions, it is essential to carefully look at contractual provisions in insurance policies and the like. For example, you never want to discover that your injury is not covered by insurance after you have been injured.

Adam O’Bannon, a Louisiana resident, was an employee of Moriah Technologies, Inc. (“Moriah”), a Texas corporation. In June of 2012, O’Bannon injured himself while working as a Moriah employee. Texas Mutual Insurance Company (“TMIC”) was Moriah’s workers’ compensation insurer. However, TMIC did not provide any workers’ compensation to O’Bannon.

Bannon argued that TMIC owed him workers’ compensation and filed a claim with the Louisiana Offer of Workers’ Compensation (“OWC”) against TMIC. At court, TMIC asked the workers’ compensation judge (“WCJ”) to dismiss O’Bannon’s claim through a motion for summary judgment because its policy did not provide coverage to Moriah for O’Bannon’s workplace injury. The WCJ agreed and dismissed O’Bannon’s case. O’Bannon appealed, arguing that the WCJ erred in holding that TMIC did not have a policy that provided O’Bannon workers’ compensation.

January 25, 2023

Can Independent Contractors Performing Manual Labor Receive Workers’ Compensation Benefits in Louisiana?

by Berniard Law Firm

workers compensation lawyer louisiana There are many ways that someone can be denied workers’ compensation benefits. Sometimes it is determined that the accident giving rise to the injury never occurred, other times the claim is filed too late, and in other cases the capacity in which the worker was hired determines eligibility for benefits. The last scenario is illustrated in a case brought to the New Orleans Office of Workers’ Compensation (“OWC”) in 2016.

Federico Martinez was among several workers hired by Jarislov Rames to lower a washer/dryer unit from Rames’ second floor apartment to street level. During the operation, one of the cords used to lower the unit broke loose and lacerated Martinez’s hand.

After the job was finished, Rames drove Martinez to the emergency room and paid the up-front $500 fee for Martinez to receive stitches. When Martinez demanded payment for the washer/dryer job, Rames withheld the $500 from Martinez’s pay and told Martinez that the rest of the emergency room fee would be deducted from future payments.