Workers Compensation

January 5, 2020

Former Employee Denied Supplemental Earnings Benefits After Shoulder Injury

police-blue-sky-security-surveillance-96612-1024x683 Injuries 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.

January 4, 2020

Injured Touro Nurse Denied Disability Benefits

by Berniard Law Firm

two-person-doing-surgery-inside-room-1250655-1024x683 Workers’ 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.

December 28, 2019

Unreliable Medical Expert Methodology Equals No Case Under Daubert in Chalmette Refinery Case

by Berniard Law Firm

gasoline-station-during-night-time-92077-1024x489 The 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.

December 23, 2019

Recovering Damages Against Louisiana’s DOTD for Unsafe Infrastructure

by Berniard Law Firm

The 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.

December 19, 2019

Appellate Court Upholds Finding that Accident Did Not Cause Employee’s Injuries

by Berniard Law Firm

clouds-crane-drill-414936-1024x384 Everyone 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.

December 14, 2019

Court Reinstates Public Works Director for the City of Opelousas

by Berniard Law Firm

28-Email-06_24_19-picture Can a court reinstate a former city employee’s job after being wrongly terminated? Well, fortunately for Mr. Turner, the answer is yes.

In 2003, Ron Turner began work as the Director of Public Works for the City of Opelousas. Eight years later, the Board of Alderman had a meeting, and Item 7 on the agenda was a “discussion regarding Turner’s employment.” During the meeting, Mr. Turner specified that they failed to notify him that his employment was up for discussion, and they removed the item from the agenda. Once they removed the item from the agenda, Mr. Turner left the meeting and did not stay for the rest of it.

As the meeting progressed, the board got to Item 16 of the agenda, which discussed the mayor’s appointments for 2011. The mayor presented an organizational chart that included all the departments and their appointments, and the box for Public Works had a replacement for Mr. Turner. The board approved the new appointments, and the mayor presented a termination letter to Mr. Turner.

December 12, 2019

Exxon Immune from Baton Rouge Refinery Asbestos Exposure Lawsuit

by Berniard Law Firm

clinic-doctor-explaining-2182972-1024x683 When an employee is injured on the job, workers’ compensation insurance often delivers more expediently than going through the courts. Unfortunately for the employee, it is also often less money than an injured employee could be awarded by suing the employer. As a Baton Rouge man recently learned, your type of employer can determine whether or not you’re able to sue your employer for work-related injuries.

J.E. Merit, a contractor, employed Mr. James Fletcher at a Baton Rouge Exxon refinery from 1988 to 1999. Mr. Fletcher claimed that, during this time, Exxon exposed him to asbestos, and that this exposure was the direct cause of his pleural mesothelioma. To recover for this injury, Mr. Fletcher filed a lawsuit against Exxon in the Orleans Parish Civil District Court. The District Court found that, while Mr. Fletcher did work for J.E. Merit, he was also a statutory employee of Exxon. Therefore, the District Court ruled that workers’ compensation, rather than the court process, was the means of recovery for Mr. Fletcher.

The type of employee-employer relationship makes a difference on whom one can sue. Under La. R.S.23:1032, workers’ compensation is the “exclusive remedy” for injuries sustained by direct employees. This statute protects companies while ensuring an expedient, albeit less compensatory, path for employees. Sometimes, however, the line is not perfectly clear between a direct employee and someone unrelated to an employer. When an employee falls in this gray area, he or she may be classified as a “statutory employee.”

November 22, 2019

Employer Agreement Forced on Terminated Employee Found to Violate Wage Payment Statute

by Berniard Law Firm

For 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.

November 18, 2019

Can You Choose Your Own Pharmacy in a Worker’s Compensation Claim?

by Berniard Law Firm

49-Email-06-24-19-picture UPDATE:

The following case is no longer good law. For the current law on this matter see, https://www.insurancedisputelawyerblog.com/ choice-in-pharmacy-for-a-work-related-injury-belongs-to-the-employer

If 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.

November 14, 2019

A Plaquemine Worker’s Request is Dismissed Due to Lack of Jurisdiction and Statutory of Limitation

by Berniard Law Firm

41-Email-05-22-19-1024x772 In 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).