Presented by DONNIE OPRY OPry Law Firm Donovan Donnie OPry JURISDICTION Verret v Tyson Foods Inc 244 So 3d 69 La App 3 Cir 41818 Claimant lived in Lafayette and was employed as a longhaul truck driver for Employer Claimant was involved in a workplace accident ID: 807310
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Slide1
Workers’ Compensation Updates
Presented by:
DONNIE O’PRYO’Pry Law Firm
Slide2Donovan “Donnie” O’Pry
Slide3JURISDICTION
Slide4Verret v. Tyson Foods, Inc.
244 So. 3d 69 (La. App. 3 Cir. 4/18/18)Claimant lived in Lafayette and was employed as a long-haul truck driver for Employer. Claimant was involved in a workplace accident in Oklahoma and thereafter filed a disputed claim for compensation in Louisiana with the Office of Workers’ Compensation. Claimant’s employment was not principally located in Louisiana and his trucking routes always began outside of Louisiana. Claimant made limited deliveries in Louisiana and parked his truck at his home in Lafayette. He called employer to inquire about the job from Lafayette and was told he would have to appear in person in Texas to fill out a job application and then return to the Texas location for a drug test and physical examination.
Slide5Verret v. Tyson Foods, Inc.
244 So. 3d 69 (La. App. 3 Cir. 4/18/18)The Appellate Court found that the Workers’ Compensation Judge manifestly erred in finding the OWC had subject matter jurisdiction over the claim. The Appellate Court ultimately sustained Employer’s declinatory exception of lack of subject matter jurisdiction.
Slide6EMPLOYEE STATUS - EXCLUSIVE REMEDY
Slide7French v. Claiborne Parish Police Jury
2018 WL 3131195 (La. App. 2 Cir. 6/27/18)An inmate was serving a hard labor sentence at the Claiborne Parish Detention Center. The inmate was injured while operating a tractor as part of a grass-cutting crew for the Claiborne Parish Police Jury. Inmate filed suit against the Police Jury alleging negligence. The Police Jury moved for summary judgement, arguing that the inmate was an employee of the Police Jury and, therefore, his exclusive remedy was in workers’ compensation. The trial court granted the motion and the inmate appealed.
Slide8French v. Claiborne Parish Police Jury
2018 WL 3131195 (La. App. 2 Cir. 6/27/18)On appeal the Appellate Court noted that “when determining whether an employment relationship exists, the most important element to be considered is the right of control and supervision over the individual."
Slide9French v. Claiborne Parish Police Jury
2018 WL 3131195 (La. App. 2 Cir. 6/27/18)Factors to consider in assessing the right of control include: selection and engagement of the worker; payment of wages; and power of control and dismissal. The Appellate Court affirmed the trial court ruling, concluding that the inmate was an employee of the Police Jury at the time of injury. Therefore, his exclusive remedy was in workers’ compensation.
Slide10INDEPENDENT CONTRACTOR – MANUAL LABOR EXCEPTION
Slide11Martinez v. Jaroslav Ramses/World of Taste, LLC
245 So. 3d 78 (La. App. 4 Cir. 5/9/18)Claimant was hired by Jaroslav Ramses as an independent contractor to perform carpentry and maintenance work.Ramses was in the, business of offering short-term rentals through the website Airbnb. At the time of the accident, Claimant was injured moving a washer and dryer from one of the rental apartments. Claimant then filed a claim for workers’ compensation benefits
Slide12Martinez v. Jaroslav Ramses/World of Taste, LLC
245 So. 3d 78 (La. App. 4 Cir. 5/9/18)The OWC dismissed the claim, but the Appellate court reversed. Under La. R.S. 23: 1021(7), an independent contractor is covered by the provisions of workers’ compensation when a substantial part of his work time is spent performing manual labor, which is part of the employer’s trade, business, or occupation. Manual labor is defined as work where the physical element outweighs the mental element. Therefore, the Appellate Court found that Claimant fell within the manual labor exception and reversed the ruling hat dismissed his worker’s compensation claim.
Slide13Course and Scope – Exclusive Remedy
Slide14Holden v. Mike’s Catfish Inn., Inc.
244 So. 3d 588 (La. App. 1 Cir. 2/27/18)Employee clocked in at her place of employment. After working in the kitchen, she was told her daughter was waiting outside in the parking lot. As Employee was walking in the parking lot, she fell on a concrete slope and injured herself. Thereafter, Employee brought a premises liability suit against Employer. Employer moved for summary judgement, which was granted, as the trial court found Employee was in the course and scope of her employment. Thus, Employee’s exclusive remedy was under the Workers’ Compensation Act.
Slide15Holden v. Mike’s Catfish Inn., Inc.
244 So. 3d 588 (La. App. 1 Cir. 2/27/18)The Appellate Court agreed that Employee was in the course and scope of her employment. For purposes of workers’ compensation, the requirement that an employee’s injury occur “in the course” of employment focuses on the time and place relationship between the injury and employment.
Slide16Holden v. Mike’s Catfish Inn., Inc.
244 So. 3d 588 (La. App. 1 Cir. 2/27/18)The Appellate Court stated, “An employee who is getting paid, is on her employer’s premises, and is on an approved work break is in the course and scope of her employment whether she is visiting with her daughter, getting a breath of fresh air, smoking a cigarette, or walking outside to drink a diet coke.”
Slide17Course and Scope – Exclusive Remedy
Slide18Beasley v.
Nezi, LLC227 So. 3d 308 (La. App. 1 Cir. 9/8/18)A Subway manager allegedly sustained injuries in a slip and fall at the restaurant while delivering ice on her day off. Employee sued her Employer in tort, alleging her co-workers allowed water to accumulate on the floor, which created an unreasonable risk of harm. To avoid the Louisiana Workers’ Compensation Act, Employee alleged she was not within the course and scope of her employment at the time of the accident. Rather, she claimed that she delivered ice “as a favor and purely gratuitously” without compensation and without being subject to anyone’s direction or control.
Slide19Beasley v.
Nezi, LLC227 So. 3d 308 (La. App. 1 Cir. 9/8/18)District Court sustained Employer’s exception of lack of subject matter jurisdiction, finding that the accident occurred during the course of Employee’s employment. The Appellate Court affirmed. The origin of Employee’s injury was employment-rooted, regardless of whether she was being directly compensated for her efforts. Thus, workers’ compensation was her exclusive remedy.
Slide20Child Labor Law Violation– Exclusive Remedy
Slide21Griggs v. Bounce N’ Around Inflatables, LLC
228 So. 3d 563 (La. App. 1 Cir. 4/6/18)Employer hired a 15 year old minor, but failed to keep on file an employment certificate as required by La. R.S. 23:182. The Claimant was working around power-driven machinery (A forklift), which violated La. R.S. 23: 163(2). That statute prohibits minors under 16 from working around such machinery. Ultimately, the minor Employee was injured when an inflatable landed on him.
Slide22Griggs v. Bounce N’ Around Inflatables, LLC
228 So. 3d 563 (La. App. 1 Cir. 4/6/18)
Employee’s parents filed a suit against the Employer, seeking recovery for the damages Employee sustained in the accident, as well as a loss of consortium claim. Employer argued that the suit was barred because the Workers’ Compensation Act is the exclusive remedy for injuries sustained in the course and scope of employment.
Slide23Griggs v. Bounce N’ Around Inflatables, LLC
228 So. 3d 563 (La. App. 1 Cir. 4/6/18)
The issue before the Appellate Court was how to reconcile the exclusivity of the remedies provided by the Workers’ Compensation Act with the Child Labor Law. Specifically, the Appellate Court noted a circuit split on whether an exception exists to the exclusive remedy provision of the Act where a minor, who is employed in violation of the Child Labor Law, is injured while performing tasks in violation of the Child Labor Law.
Slide24Griggs v. Bounce N’ Around Inflatables, LLC
228 So. 3d 563 (La. App. 1 Cir. 4/6/18)
The Appellate Court referred to the Louisiana Supreme Court case of Mott v. River Parish Maintenance, Inc., 432 So. 2d 827 (La. 1983). Ultimately, the Appellate Court held that, because Employee’s injuries were sustained in the course and scope of his employment, his exclusive remedy wad under the Workers’ Compensation Act. The court further found that “until the legislature says otherwise, we will continue to follow the reasoning set forth in the Mott case, i.e., that since the 1948 amendment s to the Act, the exclusivity provisions apply to ‘every person,’ including minors, legally or illegally employed, and that a violation of the Child Labor Law does not remove a plaintiff from the exclusivity of the Act.”
Slide25Beasley v.
Nezi, LLC227 So. 3d 308 (La. App. 1 Cir. 9/8/18)The First Circuit declined to join the Second and Third Circuits, which follow a jurisprudential exception to the exclusive remedy provision of the Workers’ Compensation Act where a minor, who is employed in violation of the Child Labor Law, is injured while performing tasks in violation of the Child Labor Law. Thus, the court denied the employee and his family’s tort claims.
Slide26PRESCRIPTION – DEVELOPMENTAL INJURY
Slide27Eugene-Robinson v. East Jefferson General Hospital
237 So. 3d 93 (La. App. 5 Cir. 12/27/17)Claimant sustained an accident on March 21, 2014 but continued to work.Claimant resigned from her employment because she could no longer perform her job in August 2015, but claimed she found another job that she could perform. Claimant continued to work until March 2017, when she discovered she needed surgery for a labral tear that developed from the November 2014 accident. Claimant produced no evidence that she continued to work between August 2015 and march 2017; therefore, the trial court did not err in finding that August 2015 was the latest date Claimant’s disability developed for purposes of prescription.
Slide28Eugene-Robinson v. East Jefferson General Hospital
237 So. 3d 93 (La. App. 5 Cir. 12/27/17)Under La. R.S. 23: 1209(A), claims for workers’ compensation benefits must be filed within: one year from the date of accident;one year from the last compensation payment for total disability or three years from the last payment of supplemental earnings benefits; orone year from the date the injury develops, if the injury does not result at the time of or immediately after the accident, but no more than three years from the date of the accident.
Slide29Eugene-Robinson v. East Jefferson General Hospital
237 So. 3d 93 (La. App. 5 Cir. 12/27/17)There are two situations that signify the date a developing injury manifests as a disability: The date the employee is forced to discontinue working due to the injury; or The date the employee receives a medical diagnosis, which determines that he is disabled.
Slide30HEARING LOSS - PRESCRIPTION
Slide31Adams v. Georgia Gulf Lake Charles, LLC
2018 WL 3131012 (La. App. 3 Cir. 6/27/18)Claimant worked for Employer from 1971 until retiring in January 2011. Claimant alleged he began to notice hearing loss in the mid-1980s. In December 2011, Claimant filed a tort claim alleging occupational noise-induced hearing loss as a result of his employment. Thereafter, Claimant also filed a workers’ compensation claim seeking supplemental earnings benefits.
Slide32Adams v. Georgia Gulf Lake Charles, LLC
2018 WL 3131012 (La. App. 3 Cir. 6/27/18)Employer argued that Claimant was aware of his occupational hearing loss as early as the 1990s, but did not file his tort suit until 2011. Thus, Employer asserted that the workers’ compensation claim prescribed because the untimely tort suit cannot toll the prescriptive period.
Slide33Adams v. Georgia Gulf Lake Charles, LLC
2018 WL 3131012 (La. App. 3 Cir. 6/27/18)Claimant countered, arguing that there are special prescription rules for occupational illness under La. R.S. 1031.1(E), which states that a claim must be filed within one year of the dates that: The disease manifested itself,The employee is disabled from working as a result of the disease, and The employee knows or has reasonable grounds to believe that the disease is occupationally related.
Slide34Adams v. Georgia Gulf Lake Charles, LLC
2018 WL 3131012 (La. App. 3 Cir. 6/27/18)Because Claimant’s employment did not terminate until January 1, 2011, the Appellate Court found that his claim could not have prescribed given that his tort suit was filed in December 2011.
Slide35HEARING LOSS – INITIAL EXAM – PRESCRIPTION INTERRUPTION
Slide36Scott v. Packaging Corp. of America
2018 WL 3300808 (La. App. 3 Cir. 7/5/18)Claimant was employed at a paper mill from 1969-2017. In 2018, Claimant alleged that his hearing loss was caused by his employment. Employer refused to authorize an initial visit to Claimant’s choice of treating physician. Claimant then sought an order from the Workers’ Compensation Judge directing Employer to authorize an initial visit with Claimant’s choice of treating physician, to pay the costs of that visit, and to pay penalties and attorney’s fees. The Judge ruled in favor or Claimant and Employer appealed.
Slide37Scott v. Packaging Corp. of America
2018 WL 3300808 (La. App. 3 Cir. 7/5/18)The Appellate Court noted that La. R.S. 23: 1121 provides that an employee is entitled to select one treating physician in any field or specialty without the approval of the employer and that if the employer denies that right, the employee “shall have a right to an expedited summary proceeding pursuant to 23: 1201.1(K)(8), when denied his right to an initial physician of choice.” Furthermore, pursuant to R.S. 12:1201(F), penalties and attorney’s fees may be imposed “for failure to consent to the employee’s request to select a treating physician or change physicians when such consent is required by R.S. 23:1121.”
Slide38Scott v. Packaging Corp. of America
2018 WL 3300808 (La. App. 3 Cir. 7/5/18)The court said that causation of the alleged accident is not an issue in determining whether an employee has been deprived of the right to see a treating physician of his choice. Furthermore, paying for Claimant’s hearing test and paying Claimant to see his physician of choice does not constitute an acknowledgment of the claim resulting in the loss of its prescription defense.
Slide39MEDICAL CAUSATION
Slide40Duplechin v. St. Landry Parish School Board
237 So. 3d 1196 (La. App. 3 Cir. 2/7/18)Claimant-teacher sought workers’ compensation benefits for exacerbation of her preexisting respiratory condition after alleged exposure to mold in her middle school classroom. The trial court determined that Claimant did not prove that exacerbation was what caused her disability. Claimant’s condition was not dormant prior to exposure, plus there was no showing as to what exactly the mold was.
Slide41Duplechin v. St. Landry Parish School Board
237 So. 3d 1196 (La. App. 3 Cir. 2/7/18)The Appellate Court agreed with the trial court’s determination. Due to the lack of evidence regarding causation between the alleged mold exposure and Claimant’s exacerbated respiratory condition, she failed to bear her burden of proof of proving a causal connection between the exposure and her present alleged disability.
Slide42MEDICAL CAUSATION – CUMULATIVE TESTIMONY
Slide43Carter v. Iberia Parish School Board
2017 WL 6349414 (La. App. 3 Cir. 12/13/17)Claimant sustained a lower-back injury at work. Thirteen months later, Claimant complained of a cervical injury. The Workers’ Compensation Judge found, and the Appellate Court agreed, that Claimant failed to prove a causal connection between the work injury and the alleged cervical injury. Claimant made no mention of her cervical injury until 13 months after the accident, she did not mention the injury to her physicians or physical therapists, and she provided no medical evidence of the injury.
Slide44Carter v. Iberia Parish School Board
2017 WL 6349414 (La. App. 3 Cir. 12/13/17)The Appellate Court also found no error in the Workers’ Compensation Judge allowing the testimony of two physicians in the same field of practice. The Workers’ Compensation Judge has discretion to determine how many experts the court wishes to hear.
Slide45MEDICAL NECESSITY
Slide46Smith v. Graphic Packaging, Inc.
244 So. 3d 755 (La. App. 2 Cir. 9/27/17)Claimant was injured while working for Employer. Employer approved, as medically necessary, prescription neuropathic cream for more than three years. It was originally determined that the cream was “medically necessary.” Employer later withdrew its approval after determining that it was not medically necessary. This determination was based upon the recommendation of the reviewing physician, who looked at one medical report and one insurance form, and did not examine Claimant nor speak with the treating physician.
Slide47Smith v. Graphic Packaging, Inc.
244 So. 3d 755 (La. App. 2 Cir. 9/27/17)The Appellate Court stated: “Medical necessity remains the touchstone for an employer’s obligation to pay for medical care.” The Appellate Court upheld the Workers’ Compensation Judge’s conclusion that Employer failed to reasonably controvert the medical necessity of the pain cream, and it affirmed the assessment of a $2,000 penalty and $8,000 attorney’s fee award.
Slide48MEDICAL TREATMENT GUIDELINES
Slide49White v. Fuel Plus, LLC
229 So. 3d 539 (La. App. 3 Cir. 10/4/17)Claimant’s treating physician requested an authorization for a surgery involving a bilateral trans metatarsal amputation of her feet. Employer’s insurer hired a medical case management company, which recommended approval of the surgery and treatment, which Employer initially granted. However, the adjuster rescinded the approval and denied the surgery two days before the scheduled date. The Workers’ Compensation Administration's medical Director also denied the treatment, stating that the “procedure is not covered by the guidelines.” Claimant appealed to a Workers’ Compensation Judge, who reversed the Medical Director’s decision and granted authorization for the surgery and post-operative care.
Slide50White v. Fuel Plus, LLC
229 So. 3d 539 (La. App. 3 Cir. 10/4/17)The Appellate Court upheld the Judge’s decision. The surgery was a recognized evidence-based, pre-authorized medical treatment under the LA Medical Treatment Guidelines. Although the post-operative hospital stay was not covered by the guidelines, it was covered under other recognized evidence-based treatment guidelines, such as the Official Disability Guidelines-Treatment in Workers’ Compensation. The 10 day post-operative hospital stay and treatment in question was hyperbaric oxygen therapy.
Slide51White v. Fuel Plus, LLC
229 So. 3d 539 (La. App. 3 Cir. 10/4/17)La. R.S. 23:1203.1 allows the use of guidelines accepted by other states as long as they meet the same specific criteria used in promulgating the Louisiana Medical Treatment Schedule. The post-operative hospitalization and treatments were not shown to be disallowed by Louisiana’s guidelines. La. R.S. 23:1203.1(D) or (M)(1) do not require a variance if Louisiana’s Guidelines do no address the specific treatment.
Slide52$750.00 CAP
- EMPLOYER APPROVAL
Slide53Gabriel v. Delta Air Lines, Inc.
230 So. 3d 671 (La. App. 5 Cir. 10/25/17)Claimant argued Employer violated R.S. 23: 1142(E), which exempts an employee from obtaining approval from his employer for testing or medical treatment if, at any time, the employer denies the injury is compensable. Here, Employer clearly accepts the claim as compensable after making a general denial. Thus, Claimant was required to seek prior approval from Employer for any non-emergency medical treatment in excess of $750.00.
Slide54INTOXICATION
Slide55Vaughn v. Dis-Tran Steel, LLC
239 So. 3d 983 (La. App. 2 Cir. 2/7/18)Claimant allegedly suffered a concussion while in the course and scope of his employment with Dis-Tran Steel. After the accident, Claimant underwent a drug urine screen taken at the emergency room. The screen tested positive for Percocet. Dis-Tran argued that the Workers’ Compensation Judge erred in finding that Claimant was entitled to workers’ compensation benefits because he was intoxicated at the time of the accident.
Slide56Vaughn v. Dis-Tran Steel, LLC
239 So. 3d 983 (La. App. 2 Cir. 2/7/18)The Appellate Court disagreed. Dis-Tran’s defense was based on the presumption of intoxication under La. R.S. 23:1081. However, the presumption of intoxication was not available since Claimant was using a prescribed controlled substance, not a non-prescribed controlled substance.
Slide57TEMPORARY TOTAL DISABILITY
Slide58White v. WIS International
230 So. 3d 246 (La. App. 3 Cir. 10/25/17)Claimant was awarded temporary total disability benefits. At the OWC trial, Claimant was the only witness to testify and failed to submit any medical evidence to support her claim that she was disabled. On appeal, the Appellate Court agreed with the Employer that Claimant failed to offer into evidence any “objective medical evidence” from any of her healthcare providers that treated her between the date she was allegedly injured and the date she began receiving TTD. Stated differently, Claimant failed to “prove by clear and convincing evidence her physical inability to engage in any employment.”
Slide59MMI - SEB
Slide60Mouton v. Walgreen Co.
246 So. 3d 590 (La. App. 3 Cir. 5/2/18)Claimant was awarded TTD after being injured in the course and scope of her employment. Nine years later, Employer moved to modify the original judgement and to suspend indemnity benefits, alleging a change in Claimant’s condition. The basis for Employer’s motion relied on an IME report wherein Claimant was found to have reached maximum medical improvement. The Workers’ Compensation Judge agreed with Employer that Claimant’s condition changed, and Claimant appealed.
Slide61Mouton v. Walgreen Co.
246 So. 3d 590 (La. App. 3 Cir. 5/2/18)The Appellate Court upheld the Judge’s decision. Upon reaching MMI, an injured worker who is able to return to work (even in pain) is no longer eligible for TTD benefits. Instead, the employee is relegated to SEB if he is unable to earn 90% of his pre-accident wages.
Slide62Mouton v. Walgreen Co.
246 So. 3d 590 (La. App. 3 Cir. 5/2/18)Additionally, Employer was not required to show Claimant’s condition has improved since the original judgment was rendered. A finding of MMI is a “change of condition” sufficient to allow the employer to modify benefits under La. R.S. 23:1310.8.
Slide63PTD – MODIFICATION OF JUDGEMNT
Slide64LUBA Workers’ Compensation v. Babineaux
233 So. 3d 699 (La. App. 3 Cir. 11/15/17)Claimant was previously found to be permanently and totally disabled due to a work injury. LUBA, through video surveillance, retail electrical supply accounts, and testimony, presented evidence that allegedly showed Claimant was no longer permanently disabled. The Workers’ Compensation Judge and the Appellate Court disagreed, finding that the medical evidence established that he was still permanently disabled. LUBA’s evidence only showed that Claimant continued to perform small electrical jobs and supervise workers, but there was no evidence that he was paid for these services.
Slide65LUBA Workers’ Compensation v. Babineaux
233 So. 3d 699 (La. App. 3 Cir. 11/15/17)The Appellate Court determined that Claimant’s "desire to stay busy” did not equate to an ability to engage in any employment, which would constitute a change in his condition.
Slide66DEATH BENEFITS - CONCUBINE
Slide67Perez v. Irby Construction Co.
247 So. 3d 906 (La. App. 3 Cir. 6/6/18)Employee was killed in a work-related accident. At the time, Employee was not married, but was romantically involved with Claimant, who filed a disputed claims for compensation seeking death benefits on her own behalf and on behalf of her then-unborn child. The child was born and confirmed by DNA testing to be the child of the Employee. The child was paid death benefits.
Slide68Perez v. Irby Construction Co.
247 So. 3d 906 (La. App. 3 Cir. 6/6/18)Employer contested benefits for Claimant on the basis of R.S. 23:1253, which bars death benefits to the deceased employee’s “concubine.” Employer filed an exception of no right/cause of action, which the Workers’ Compensation Judge denied. Employee appealed.
Slide69Perez v. Irby Construction Co.
247 So. 3d 906 (La. App. 3 Cir. 6/6/18)The Appellate Court confirmed the Judge’s denial of the Employer’s exception. No evidence was adduced at the hearing on the exception. Thus, whether Claimant occupied the position of concubine, which was the burden of proof imposed on the Employer, was not demonstrated. Stated differently, it was not proven that Claimant was Employee’s concubine.
Slide70UNDOCUMENTED WORKER SEB CRITERIA
Slide71Perdomo v. RKC, LLC
232 So. 3d 90 (La. App. 5 Cir. 11/29/17)An undocumented immigrant Claimant was severely injured when he was pinned under a garbage truck. The worker filed a disputed claim contesting the reduction of his workers’ comp indemnity benefits. While the trial court recognized Claimant’s inability to legally secure employment, it found that he could not rely upon his undocumented status for his inability to obtain employment.
Slide72Perdomo v. RKC, LLC
232 So. 3d 90 (La. App. 5 Cir. 11/29/17)The Appellate Court’s majority opinion disagreed, however, and took undocumented status into consideration when it evaluated the SEB entitlement. Because the Employer failed to show it properly complied with the federal Immigration Reform & Control Act, the court found that Employer had knowledge of Claimant’s undocumented status upon hiring. Since Employer knew of Claimant's undocumented status, it also should have known of Claimant’s inability for rehiring in the event of an injury within the course and scope of his employment. Thus, the court found the Employer should fairly bear the responsibility for Claimant’s current predicament.
Slide73Perdomo v. RKC, LLC
232 So. 3d 90 (La. App. 5 Cir. 11/29/17)At first glance, this would appear to be an extremely negative opinion for employers with undocumented workers who sustain injuries. Originally, there was concern in the employer community that this would tie employers’ hands in assessing such workers’ wage earning capacity.However, of the three judges handling this appeal, only the judge writing the majority opinion felt that the undocumented status of the employee should be considered when assessing the suitable employment and wage earning capacity.
Slide74Perdomo v. RKC, LLC
232 So. 3d 90 (La. App. 5 Cir. 11/29/17)Two of the three judges joined in a concurrence with the case’s result by determining that the identical Taco Bell job was not physically suitable for the employee. The concurring opinion concluded, however, that a claimant may not use his lack of authorization to work in the United States to prevent a termination or reduction in benefits by arguing that an otherwise available job is not available to him because of his undocumented status.
Slide75INDEPENDENT MEDICAL EXAM - MMI
Slide76Hamilton v. GCA Services Group, Inc.
243 So. 3d 51 (La. App. 1 Cir. 2/21/18)After two experts differed on Claimant’s ability to work and maximum medical improvement (MMI) pursuant to La. R.S. 23:1123, the Workers’ Compensation Judge granted Claimant’s motion to limit the scope of the Independent Medical Examination to address only Claimant’s capacity to work and not to address any other issues, such as MMI.
Slide77Hamilton v. GCA Services Group, Inc.
243 So. 3d 51 (La. App. 1 Cir. 2/21/18)On appeal, the primary issue was whether MMI is an aspect of one’s medical condition pursuant to La. R.S. 1123.The Appellate Court held that MMI does fall within the purview of La. R.S. 23:1123, as MMI is closely related to condition and ability to work. The court noted that “Louisiana courts often discuss [MMI] contemporaneously with condition and ability to work.”The court reversed the Office of Workers’ Compensation judgment to the extent that it restricted the independent medical examiner from determining MMI.
Slide78SUSPENSION OF BENEFITS – FAILURE TO ATTENT SMO
Slide79Robinson v. Capital Staffing
230 So. 3d 643 (La. App. 3 Cir. 10/18/17)Claimant sought penalties and attorney’s fees for his Employer’s suspension of indemnity benefits after he failed to attend to medical examination appointments the Employer scheduled. The Workers’ Compensation Judge ruled in favor of the Claimant. Employer appealed.
Slide80Robinson v. Capital Staffing
230 So. 3d 643 (La. App. 3 Cir. 10/18/17)The Appellate Court reversed, finding that Employer was allowed to unilaterally suspend Claimant’s indemnify benefits for failing to attend the medical examination under La. R.S. 23:1124. Furthermore, Claimant’s excuses for failing to attend (losing and misplacing the examination notices) did not constitute “good cause” for failure to attend.
Slide81FRAUD
Slide82Reeder v.
Hardtner Medical Center244 So. 3d 1244 (La. App. 3 Cir. 5/2/18)Claimant injured herself in the course and scope of employment after tripping over a wheelchair. Employee paid a total of $23,959.36 in total temporary disability benefits and $64,780.05 in total medical benefits. Employer later terminated Claimant’s indemnity and medical benefits, alleging that she made misrepresentations concerning benefit payments in violation of La. R.S. 23:1208.
Slide83Reeder v.
Hardtner Medical Center244 So. 3d 1244 (La. App. 3 Cir. 5/2/18)The Workers’ Compensation Judge agreed with Employer, and concluded that Claimant willfully made numerous false statements and representations for the purpose of obtaining benefits. Specifically, Claimant failed to mention “multiple pre-existing conditions that she suffered from prior to the accident and which are the same conditions that she claims resulted from the accident at issue.” The Appellate Court affirmed the trial court’s decision.
Slide84FRAUD – TIMING OF FORFEITURE
Slide85Plant Performance Services, LLC v. Harrison
249 So. 3d 1 (La. App. 1 Cir. 4/6/18)Claimant was injured in the course and scope of his employment. Thereafter, Employer filed a disputed claim for compensation, informing the OWC that it terminated Employee’s benefits for fraud, and alleged that Claimant willfully made false statements or representations regarding his injuries, physical condition, and ability to work to his healthcare providers in order to obtain workers’ compensation benefits, in violation of R.S. 23:1208. The Workers’ Compensation Judge agreed with the Employer and denied Claimant’s benefits.
Slide86Plant Performance Services, LLC v. Harrison
249 So. 3d 1 (La. App. 1 Cir. 4/6/18)The Appellate Court affirmed the Judge’s decision. The court further noted that “forfeiture of workers’ compensation benefits is effective from the time of the misrepresentation prospectively, rather than the time of the accident.” Because Claimant made a supplemental or subsequent affidavit that contradicted his deposition testimony, the Workers’ Compensation Judge did not err in finding Claimant willfully made false statements to obtain benefits.
Slide87FRAUD - MALINGERING
Slide88Stupp
Bros., Inc. v. Alexander243 So. 3d 22 (La. App. 1 Cir. 2/20/18)While on the job, Claimant allegedly injured herself after kneeling down. Her treating physician recommended surgery, while another physician and the IME examiner recommended more conservative treatment. After undergoing a psychological evaluation to determine whether Employee could handle a surgical procedure, the examining doctor diagnosed Employee with malingering (i.e., feigning illness).
Slide89Stupp
Bros., Inc. v. Alexander243 So. 3d 22 (La. App. 1 Cir. 2/20/18)As a result of the malingering diagnosis, Employer argued that Employee forfeited her right to all workers’ compensation benefits pursuant to La. R.S. 23:1208 based on fraud and misrepresentations.
Slide90Stupp
Bros., Inc. v. Alexander243 So. 3d 22 (La. App. 1 Cir. 2/20/18)The OWC hearing officer ruled in favor of the Employee. Employer appealed. On appeal, the Appellate Court noted that the three requirements for the forfeiture of the right to workers’ compensation benefits under La. R.S. 23:1208 are: A false statement or representation;Willfully made; and
Made for the purpose of obtaining or defeating any benefit or payment.
Slide91Stupp
Bros., Inc. v. Alexander243 So. 3d 22 (La. App. 1 Cir. 2/20/18)The Appellate Court agreed with the OWC that the “diagnosis of malingering alone does not equate to La. R.S. 23:1208 fraud.” Further, in finding that surgery was required, the OWC hearing officer was entitled to give more weight to the opinion of the treating physician.
Slide921208.1
FRAUD
Slide93Turner v. Chicago Bridge & Iron Co.
2018 WL 3131433 (La. App. 2 Cir. 6/27/18)Claimant injured his back while doing carpentry work for Employer. Employer alleged Claimant committed fraud under La. R.S. 23:1208.1 and, therefore, forfeited his workers’ compensation benefits. Specifically, Claimant answered “no” on a medical questionnaire as to whether he had a “herniated” or “ruptured” disc in his back, when, in fact, he had a prior diagnosis of “bulging” and “Protrudin” discs in his lower back. The Workers’ Compensation Judge awarded benefits to Claimant. Employer appealed.
Slide94Turner v. Chicago Bridge & Iron Co.
2018 WL 3131433 (La. App. 2 Cir. 6/27/18)The Appellate Court recognized that the evidence suggested that Claimant may have intentionally made false statements in contravention of La. R.S. 23:1208. But the Appellate Court upheld the Workers’ Compensation Judge’s decision.The Appellate Court noted that “forfeiture of workers’ compensation benefits based on the claimant’s failure to truthfully answer a medical questionnaire is a harsh remedy; therefore, Section 1208.1 is strictly construed.” The court found that Claimant's responses to the medical questionnaire were not untruthful.
Slide95Turner v. Chicago Bridge & Iron Co.
2018 WL 3131433 (La. App. 2 Cir. 6/27/18)Furthermore, the instruction on the questionnaire to disclose and explain “any other medical conditions not listed on the form” was overbroad and placed an excessive burden on the employee. The court notes that it is the employer’s responsibility to ask the questions it wants answered. The judgment in favor of Claimant was affirmed.
Slide96PENALTIES & ATTORNEY’S FEES - REASONABLE CONTROVERSION
Slide97Johnson v. Northwest Louisiana War Veterans Home
246 So. 3d 681 (La. App. 2 Cir. 2/28/18)Workers’ Compensation Judge found that Employer did not reasonably controvert Claimant’s SEB claim after her second surgery. The only action taken by the Employer toward reasonably controverting the claim was sending a letter to Claimant’s surgeon requesting more specific information about Claimant’s post-surgery work restrictions.
Slide98Johnson v. Northwest Louisiana War Veterans Home
246 So. 3d 681 (La. App. 2 Cir. 2/28/18)When the surgeon failed to respond to the letter, it was incumbent upon Employer to follow up with a phone call to the surgeon and/or obtain a statement from Claimant regarding her physical abilities and any modifications required for her to return to work. Employer failed to take these actions. The Appellate Court affirmed the Judge’s award of penalties and attorney’s fees.
Slide99PENALTIES & ATTORNEY’S FEES - CONTINUING DUTY TO INVESTIGATE
Slide100Shelton v.
Smitty’s Supply, Inc.2018 WL 2979590 (La. App. 1 Cir. 6/12/18)Where an employer or insurer initially received a favorable medical report, but later receives information revealing the possibility of continuing disability, it may not blindly continue to rely on the initial medical report. The employer or insurer has a continuing duty to investigate and make every reasonable effort to assemble factual and medical information to ascertain whether a claim is compensable for denying benefits.
Slide101Shelton v.
Smitty’s Supply, Inc.2018 WL 2979590 (La. App. 1 Cir. 6/12/18)Because Employer’s adjuster acted arbitrary and capriciously in disregarding its duty to properly investigate the claim before it was denied, the Workers’ Compensation Judge did not manifestly err in assessing statutory penalties and attorney’s fees to Employer.
Slide102Shelton v.
Smitty’s Supply, Inc.2018 WL 2979590 (La. App. 1 Cir. 6/12/18)The Workers’ Compensation Judge erred, however, in making two separate awards of attorney’s fees for failure to timely pay indemnity benefits and failure to pay medical benefits. Under La. R.S. 23:1201(J), only one award of attorney's fees can be made in connection with a hearing on the merits, even when multiple violations have occurred.
Slide103PENALTIES & ATTORNEY’S FEES
Slide104Broussard v. Acadian Ambulance Service, Inc.
239 So. 3d 425 (La. App. 3 Cir. 1/24/18)Claimant was injured on the job when she tripped over boxes and used both of her hands to break the fall. Claimant was treated by an orthopedic surgeon, who ultimately performed two De Quervain’s surgical releases on Claimant. After the second surgery, the surgeon found that Claimant has reached “maximum medical improvement” and released her from his care. Claimant continued to complain of pain in her wrists.
Slide105Broussard v. Acadian Ambulance Service, Inc.
239 So. 3d 425 (La. App. 3 Cir. 1/24/18)Thereafter, Employer refused to continue paying benefits to Claimant. The Workers’ Compensation Judge awarded Claimant $6,000 in penalties and $6,000 in attorney’s fees. Employer and its Insurer appealed.
Slide106Broussard v. Acadian Ambulance Service, Inc.
239 So. 3d 425 (La. App. 3 Cir. 1/24/18)On appeal, the Appellate Court found that the Workers’ Compensation Judge committed manifest error in awarding penalties and attorney’s fees to Claimant. Employer’s refusal was based on the surgeon’s release of Claimant and his opinion that she reached maximum medical improvement. Therefore, Employer possessed medical information to reasonably counter Claimant’s claims.
Slide107PRO-SE SETTLEMENT
Slide108Dorsey v. ProTemp Staffing Solutions, Inc.
246 So. 3d 610 (La. App. 3 Cir. 5/23/18)Claimant filed a disputed claim for compensation in which he alleged that he injured his neck and back in a workplace accident. Later, Claimant sought to reopen his claim for benefits. Claimant alleged fraud and ill practices for the failure to inquire into Claimant’s understanding of the settlement agreement.
Slide109Dorsey v. ProTemp Staffing Solutions, Inc.
246 So. 3d 610 (La. App. 3 Cir. 5/23/18)The Appellate Court disagreed. The court found the Workers’ Compensation Judge approved the settlement after certifying that the Claimant understood his rights and the consequences of a settlement, in accordance with La. R.S. 23: 1272, which governs procedural requirements for approval of works’ compensation settlement agreements.
Slide110SETTLEMENT WITHOUT APPROVAL - EMPLOYEE BUY BACK
Slide111Talbot v. Mouton Plumbing & Hauling, Inc.
244 So. 3d 1235 (La. App. 3 Cir. 4/25/18)This case involved an automobile accident in which an employee was injured in the course and scope of his employment. The employer paid indemnity benefits of $23,487.86 and medical expenses of $45,777.16. The employee filed a tort claim against the third-party tortfeasor and the insurer, Farm Bureau. In accordance with La. R.S. 23:1102(A), the Claimant notified the employer and insurer of the suit and the employer and its insurer, Liberty Mutual, intervened.
Slide112Talbot v. Mouton Plumbing & Hauling, Inc.
244 So. 3d 1235 (La. App. 3 Cir. 4/25/18)The Claimant eventually settled the tort suit for a total of $107.389.73 but failed to obtain the employer’s or its insurer’s written approval of the settlement. Under La. R.S. 23:1102(B), a tort settling employee who fails to obtain the employer’s or workers’ compensation insurer’s approval of the settlement will forfeit his right to future compensation benefits.
Slide113Talbot v. Mouton Plumbing & Hauling, Inc.
244 So. 3d 1235 (La. App. 3 Cir. 4/25/18)However, a Claimant has a right to “buy back” his right to future benefits under La. R.S. 1102(B) if he reimburses the insurer. The repayment, however, is subject to a limitation of 50% of the net settlement proceeds received by the employee after attorney’s fees are taken out.
Slide114Talbot v. Mouton Plumbing & Hauling, Inc.
244 So. 3d 1235 (La. App. 3 Cir. 4/25/18)This case had a number of holdings including that only attorney’s fees and not costs, are deducted from the total settlement amount when calculating the 50% “buy back” figure. Moreover, the case also dealt with the employer’s credit before any future compensation had to be paid, and the Third Circuit ruled that “the ‘buy back’ sum is quasi-penal in nature and is ‘not credited against the credit granted in the final sentence of La. R.S. 1102(B).”
Slide115Talbot v. Mouton Plumbing & Hauling, Inc.
244 So. 3d 1235 (La. App. 3 Cir. 4/25/18)Finally, and since the employer had intervened and thereby retained its full reimbursement rights against the third-party insurer, Farm Bureau, under La. R.S. 23:1102(C)(1), it is interesting that the case does not make any reference to any effort to obtain the shortfall repayment to the comp carrier.