gets.primecure.net

Category: Workers Compensation

  • Injured Worker Wins Right to Shoulder Surgery: Court Upholds Decision Against Employer and Insurer

    In a victory for injured workers in Louisiana, the Court of Appeal for the Fourth Circuit recently upheld a decision granting Lorae Burnett the right to shoulder surgery following a work-related motor vehicle accident. The case, Burnett v. Full Force Staffing, LLC, & LUBA Casualty Insurance Company, centered on interpreting the state’s Medical Treatment Guidelines and whether the recommended surgery was medically necessary and appropriate.

    Background of the Case:

    Mr. Burnett, an employee of Full Force Staffing, was injured in a motor vehicle accident while on the job. He sought workers’ compensation benefits for various injuries, including significant pain in his right shoulder. After receiving conservative treatment that failed to alleviate his pain, Mr. Burnett’s orthopedic shoulder specialist, Dr. Savoie, recommended surgery.

    Dispute Over Surgery:

    LUBA Casualty Insurance Company, the Full Force Staffing insurer, denied the surgery request. They claimed the surgery was not pre-authorized, and there was no prior indication that Dr. Savoie was Mr. Burnett’s chosen physician.

    Mr. Burnett challenged this denial, filing a Disputed Claim for Medical Treatment with the Office of Workers’ Compensation’s (OWC) Medical Director. After reviewing Mr. Burnett’s medical records, the Medical Director determined that the surgery was in accordance with the OWC Medical Treatment Guidelines and should be covered.

    The Appeal

    Full Force Staffing and LUBA appealed the Medical Director’s decision, arguing that the surgery was unnecessary and did not comply with the Medical Treatment Guidelines. They also asserted that Mr. Burnett had not undergone sufficient conservative therapy before opting for surgery.

    Court’s Decision:

    The Court of Appeal reviewed the case and found that Mr. Burnett’s medical records clearly showed that conservative treatment had failed to relieve his pain. The court also noted that the Medical Director had likely reviewed additional medical records not presented in court, further supporting the decision to approve the surgery.

    The court ultimately affirmed the OWC’s judgment, upholding Mr. Burnett’s right to receive the recommended shoulder surgery. It concluded that the appellants failed to provide clear and convincing evidence to overturn the Medical Director’s decision, especially since they did not present any countervailing medical evidence to dispute Dr. Savoie’s recommendation.

    Key Takeaways:

    This case is an essential reminder that injured workers in Louisiana have the right to receive medically necessary treatment, even if it requires surgery. The Medical Treatment Guidelines provide a framework for determining appropriate care, and the OWC Medical Director plays a critical role in resolving disputes.

    If your workers’ compensation claim for medical treatment is denied, you can challenge that decision. It is crucial to consult with an experienced workers’ compensation attorney who can guide you through the dispute resolution process and advocate for your right to receive the necessary medical care.

    Written by Berniard Law Firm

  • No Bond, No Appeal: Louisiana Court Dismisses Workers’ Comp Appeal for Procedural Misstep

    In a decisive move highlighting the importance of procedural adherence in workers’ compensation cases, the Louisiana Court of Appeal, Fourth Circuit, dismissed an appeal because the appellants failed to post a required appeal bond.

    This decision underscores the importance of adhering to procedural requirements in workers’ compensation appeals.

    Case Background:

    Angela Jackson sustained an ankle injury while working at a Family Dollar Store in New Orleans. She filed a workers’ compensation claim, asserting that she was a direct employee of Becky Tolito and Tolito Services Co., L.L.C., and a statutory employee of Family Dollar, S&S Janitorial Services, and SMS Assist.

    The Worker’s Compensation Judge (WCJ) ruled in favor of Ms. Jackson, finding that she was injured in the course and scope of her employment. The WCJ awarded her medical expenses, temporary disability benefits, and supplemental earnings benefits and assessed penalties and attorney’s fees against the defendants.

    The defendants appealed the WCJ’s decision. However, they failed to post an appeal bond, a mandatory requirement in Louisiana workers’ compensation cases where the claimant has been awarded benefits.

    Court’s Ruling:

    The Court of Appeal dismissed the appeal as premature due to the lack of an appeal bond. It emphasized that Louisiana law mandates appeal bonds in workers’ compensation cases to guarantee payment of the awarded benefits, interest, and costs. The court noted that while the appellants failed to post the bond, the delay for doing so does not begin until the WCJ sets the bond amount.

    The case was remanded to the WCJ with an order to set the appeal bond amount, allowing the appellants to perfect their appeal by posting the bond within the prescribed time limits.

    Key Takeaways:

    This case serves as a crucial reminder for employers and their insurers to follow procedural requirements diligently when appealing workers’ compensation decisions. Failure to post an appeal bond can result in the dismissal of the appeal, potentially delaying the resolution of the case and incurring additional legal costs.

    In Louisiana, appeal bonds are mandatory in workers’ compensation cases where the claimant has been awarded benefits. The WCJ sets the bond amount, and the appellant has a specific timeframe to post the bond after being notified of the amount.

    It is imperative for parties involved in workers’ compensation litigation to consult with an experienced attorney to ensure compliance with all procedural rules and avoid potential pitfalls that could jeopardize their appeal.

    Additional Sources: Angela Jackson v. Family Dollar Stores of Louisiana Inc., et al

    Written by Berniard Law Firm

    Other Berniard Law Firm Articles on Workers Compensation Issues: Work-Related Injury and Subsequent Leave: When is Compensation Due? and Understanding the Finality of Workers’ Compensation Settlements

  • Work-Related Injury and Subsequent Leave: When is Compensation Due?

    Navigating the complexities of workers’ compensation claims can be challenging, especially when subsequent health issues and leaves of absence are involved. A recent case highlights the importance of understanding the nuances of Louisiana workers’ compensation law and the critical role of proving causation in obtaining benefits.

    Jerry Neal, Jr., a radiology technician, sustained a back injury while lifting a patient at St. Tammany Parish Hospital in 2014. He returned to work on modified duty and eventually full duty. However, he re-injured his back in a similar incident in 2015. Again, he was placed on modified duty but later took a leave of absence for an unrelated neck surgery. When his leave expired, he was terminated because he was not medically cleared to return due to his neck, not his back. Subsequently, he filed for workers’ compensation benefits, claiming he was unable to work due to his back injury.

    The court’s decision hinged on whether Mr. Neal’s inability to work was directly caused by his work-related back injury or his non-work-related neck surgery. The court also examined whether he was entitled to temporary total disability (TTD) or supplemental earning benefits (SEB).

    Key Takeaways from the Ruling:

    • Clear and Convincing Evidence for TTD: To receive TTD benefits, an employee must prove by clear and convincing evidence their inability to engage in any employment due to the work-related injury. Mr. Neal’s doctor testified that he could have performed the modified-duty work offered, thus undermining his TTD claim.
    • SEB Eligibility: SEB benefits are available when an employee cannot earn 90% or more of their pre-injury wage due to a work-related injury. The court emphasized that the employee must prove the work-related injury, not another cause, led to the wage loss. Mr. Neal’s voluntary leave for neck surgery was deemed the reason for his inability to work, not his back injury.
    • Doctor’s Testimony and Modified Duty: The court considered the doctor’s testimony that Mr. Neal could have performed modified duty and that his work restrictions were related to his duties as a radiology technician. This further supported the denial of benefits.

    This case underscores the critical importance of establishing a clear causal link between a work-related injury and any subsequent inability to work. If an employee’s absence from work is due to an unrelated medical issue, even if they have a pre-existing work-related injury, they may not be eligible for workers’ compensation benefits. It also highlights the importance of understanding the specific requirements for TTD and SEB benefits and providing sufficient evidence to meet the burden of proof.

    Additional Sources: JERRY HEAL SR. VERSUS ST. TAMMANY PARISH HOSPITAL

    Written by Berniard Law Firm

    Other Berniard Law Firm Articles on Workers Compensation Issues: 1010 Form Required For Company To Cover Medical Expenses in Workers Compensation and Worker Did Not Commit Fraud In Pre-Work Medical History Questionnaire

  • Work-Related Knee Injury Leads to Multiple Compensable Injuries: Louisiana Court’s Ruling

    A recent ruling by the Louisiana Fifth Circuit Court of Appeal in Rodney Loar v. LUBA Worker’s Comp Terminix Service Company, Inc. highlights the complex nature of workers’ compensation claims and the challenges in determining which subsequent injuries are compensable.

    Rodney Loar, a technician for Terminix, injured his right knee and head in a work-related accident in 2011. He underwent multiple surgeries, including a total knee replacement. Subsequently, he experienced instability in his right knee, leading to falls and injuries to his left knee, left shoulder, right hip, and lower back.

    Critical Issues in the Case:

    • Compensability of Subsequent Injuries: The primary issue was whether Loar’s subsequent injuries directly resulted from his initial work-related knee injury.
    • Medical Expenses and Penalties: The court also examined the denial of medical treatment for Loar’s subsequent injuries and the imposition of penalties and attorney’s fees on Terminix.

    The Court of Appeal affirmed in part and reversed in part the Workers’ Compensation Judge’s (WCJ) ruling. It upheld the WCJ’s findings that Loar’s injuries to his left knee, right hip, and lower back were compensable as they were a foreseeable consequence of the instability in his right knee caused by the initial work accident.

    However, the court overturned the WCJ’s finding that Loar’s left shoulder injury was compensable. The evidence did not sufficiently support the claim that the shoulder injury was directly related to the work-related knee injury.

    Furthermore, the court reversed the WCJ’s award of penalties and attorney’s fees to Loar. It found that Terminix had reasonably controverted the claims, as the causal connection between the initial injury and subsequent injuries was not always clear.

    Things to Know:

    • Causation is Key: Proving a causal link between the initial work-related injury and subsequent injuries is critical for obtaining compensation in workers’ compensation cases.
    • Medical Evidence Matters: Thorough medical documentation and expert opinions are essential in establishing the connection between injuries and the initial accident.
    • Reasonable Controversy: Employers and insurers have the right to reasonably controvert claims when there is a legitimate dispute about the compensability of injuries.
    • Appellate Review: The Court of Appeal reviews workers’ compensation cases under a manifest error or clearly wrong standard, giving deference to the WCJ’s factual findings unless they are unsupported by the evidence.

    This case demonstrates the complexities involved in workers’ compensation claims, especially when subsequent injuries arise. It emphasizes the importance of clear medical evidence and the need for employers and insurers to thoroughly investigate before denying benefits.

    Additional Sources: Rodney Loar v. LUBA Worker’s Comp Terminix Service Company, Inc.

    Written by Berniard Law Firm

    Other Berniard Law Firm Articles on Worker’s Compensation Issues: Work Injury and Mental Health: When Does Workers’ Comp Cover Psychological Impacts? and Louisiana Court Reverses Dismissal of Workers’ Compensation Claim: Understanding the Importance of Continuing Jurisdiction

  • Work Injury and Mental Health: When Does Workers’ Comp Cover Psychological Impacts?

    In the realm of workers’ compensation, the interplay between physical injuries and mental health can be complex. A recent Louisiana Court of Appeal decision highlights the challenges faced by workers seeking compensation for mental health conditions arising from workplace injuries. The case involved a police officer who developed psychological issues after a back injury, and the court’s ruling underscores the high standard of proof required for such claims.

    Bea Angelle, a police officer, sustained a back injury while on duty. She received temporary total disability benefits (TTDs) from her employer, the City of Kaplan Police Department. Later, these benefits were converted to supplemental earnings benefits (SEBs), which are paid when an employee can return to work but earns less due to their injury.

    However, the City of Kaplan terminated Angelle’s SEBs based on a vocational rehabilitation consultant’s assessment that she could return to some form of employment. Angelle disputed this decision, arguing her psychological condition, stemming from her physical injury, prevented her from working.

    The trial court denied Angelle’s request for SEBs, and the Court of Appeal affirmed this ruling. The court emphasized the strict requirements for proving a mental injury caused by a physical injury under Louisiana workers’ compensation law. It concluded that Angelle failed to meet the “clear and convincing evidence” standard needed to establish this causal link.

    Key Takeaways:

    • Mental Injury Caused by Physical Injury: In Louisiana, mental injuries resulting from physical work injuries are compensable only if proven by “clear and convincing evidence,” a higher standard than the typical “preponderance of the evidence” in civil cases.
    • Diagnosis and Criteria: The mental injury must be diagnosed by a licensed psychiatrist or psychologist, and the diagnosis must meet the criteria in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM).
    • Challenges in Proving Causation: The court emphasized the difficulty of proving a mental injury is directly caused by a physical injury, given the potential for subjective symptoms and the complexity of mental health conditions.
    • Importance of Documentation and Communication: Angelle’s case was weakened by the fact that she didn’t disclose her ongoing psychological treatment to her employer or the vocational rehabilitation consultant. This lack of communication made it difficult to establish a clear link between her mental health and the work injury.

    Implications for Injured Workers

    This case highlights the challenges faced by workers seeking compensation for mental health conditions stemming from workplace injuries. It underscores the importance of:

    • Seeking Professional Help: If you’re experiencing psychological difficulties after a work injury, seek treatment from a licensed mental health professional.
    • Documenting Your Condition: Keep detailed records of your treatment, including diagnoses and any connection to your physical injury.
    • Communicating with Your Employer and Insurer: Inform them of any mental health treatment you’re receiving related to your work injury.
    • Consulting an Attorney: Navigating the complexities of workers’ compensation law can be overwhelming. An experienced attorney can help you understand your rights, gather evidence, and advocate for your claim.

    Additional Sources: BEA ANGELLE VERSUS CITY OF KAPLAN-KAPLAN POLICE DEPARTMENT 

    Written by Berniard Law Firm

    Other Berniard Law Firm Articles on Workers Compensation: When Is An Employee Entitled To Select A Physician For A Workers’ Compensation Claim? and Are Mental Injuries Covered By Workers’ Compensation?

  • Worker’s Comp in Louisiana: Navigating the Medical Treatment Guidelines

    In the realm of workers’ compensation, ensuring injured employees receive necessary medical treatment can sometimes be a battle. A recent Louisiana Court of Appeal decision, Deubler v. Bogalusa City Schools, highlights the complexities surrounding the Louisiana Medical Treatment Guidelines and the process of obtaining authorization for treatment. This case serves as a reminder of the importance of adhering to these guidelines while also recognizing the need for flexibility when circumstances warrant it.

    Irvin Deubler, an employee of Bogalusa City Schools (BCS), suffered a lower back injury at work. He was receiving workers’ compensation benefits and sought treatment from Dr. Flagg for his chronic pain. Dr. Flagg recommended an MRI and a psychological evaluation to determine if Deubler was a candidate for a spinal cord stimulator (SCS) trial, a potential treatment option for his pain.

    BCS’s insurer, LUBA Casualty Insurance Company, denied these requests, prompting Dr. Flagg to appeal to the Office of Workers’ Compensation (OWC). The OWC’s associate medical director approved the requests, but LUBA and BCS further appealed to the OWC judge.

    The OWC judge upheld the associate medical director’s decision, and the Court of Appeal affirmed this ruling. The court emphasized the role of the Medical Treatment Guidelines in determining appropriate medical care for injured workers. It also highlighted the process for obtaining a variance from these guidelines when necessary.

    Things to Know: 

    • Medical Treatment Guidelines: Louisiana has established Medical Treatment Guidelines to ensure efficient and timely medical care for injured workers. These guidelines create a rebuttable presumption as to what treatments are considered necessary.
    • Variances from the Guidelines: If a healthcare provider recommends treatment that deviates from the guidelines, they can seek a variance by demonstrating to the OWC medical director that the variance is reasonably required to treat the worker’s injuries.
    • Burden of Proof: The initial burden of proof lies with the injured worker to show the medical necessity of the requested treatment. If the OWC medical director approves a variance, the burden shifts to the employer/insurer to prove, by clear and convincing evidence, that the decision was not in accordance with the law.
    • Appellate Review: The court’s decision is subject to review by the Court of Appeal, which applies the manifest error standard. The appellate court will only overturn the OWC judge’s decision if there is no reasonable factual basis for it.

    Implications for Injured Workers and Employers

    The Deubler case highlights the importance of understanding and navigating the Medical Treatment Guidelines in Louisiana workers’ compensation cases.

    For injured workers, it’s crucial to work closely with your healthcare provider to ensure your treatment requests are supported by medical evidence and comply with the guidelines or justify a variance. If your requests are denied, you have the right to appeal and present additional evidence to the OWC.

    For employers and insurers, it’s essential to be familiar with the Medical Treatment Guidelines and understand the process for challenging treatment requests. While the guidelines provide a framework for medical care, they are not absolute, and variances can be granted when medically necessary.

    Navigating the complexities of workers’ compensation law can be challenging. If you’re an injured worker or an employer facing a dispute over medical treatment, seeking legal advice from an experienced workers’ compensation attorney is crucial to protect your rights and ensure a fair outcome.

    Additional Resources:IRVIN DEUBLER VERSUS BOGALUSA CITY SCHOOLS & LUBA CASUALTY INSURANCE COMPANY

    Written by Berniard Law Firm

    Other Berniard Law Firm Articles on Workers Compensation: Permanently Disabled Individual Not Acting Under Scope of Employment In Workers’ Compensation Case and  When a Workplace Injury Crosses State Lines: Navigating the Complexities of Workers’ Compensation and Tort Liability

  • Court of Appeal Increases Monetary Damages Award Following Workplace Injury in Monroe Beverage Facility

    Injuries that occur while an individual is working can devastate the injured party’s life in several ways. Not only does the injured party likely earn less money due to the injury, but other damages, such as medical expenses and loss of enjoyment of life, may also result.

    James Thomas was a forklift operator for Marsala Beverage Company (“Marsala”) in Monroe, Louisiana. In addition to operating forklifts, Thomas routinely moved cases of drinks by hand and performed janitorial duties around the facility. On one occasion, when Thomas was operating a forklift to unload pallets of drinks, the forklift fell out of the back of a delivery truck, landing several feet below onto concrete.

    After the fall, Thomas visited Marsala’s company doctor, Dr. George Woods, complaining of pain in his back. Dr. Woods examined Thomas and ordered x-rays, which showed no evidence of fractures in Thomas’s spine. During the visit, Thomas explained to Dr. Woods that he wanted to return to work as soon as possible to receive bonus compensation based on the number of hours he worked that week. Dr. Woods cleared Thomas to return to work, which he did even though he continued to experience back pain.

    After several months, Thomas stopped working and filed a lawsuit against Louisiana United Businesses Association Casualty Insurance Company (“LUBA”). Marsala’s insurance carrier. In the petition, Thomas sought damages for physical and mental suffering, medical expenses, inability to earn past and future wages, disability, and loss of consortium.

    At trial, the jury awarded Thomas $40,000 for general damages, $34,977 for inability to obtain past wages, and $40,000 for previous medical expenses. It also awarded Thomas’s wife $10,000 for loss of consortium. Subsequently, the trial judge decreased Thomas’s total award to approximately $50,000 based on Thomas’s failure to mitigate damages.

    Thomas appealed to Louisiana’s Second Circuit Court of Appeal. The first issue on appeal was whether the $40,000 award for general damages was, as Thomas argued, abusively low. The purpose of general damages is to compensate an injured party for pain and suffering that cannot be precisely calculated. Duncan v. Kansas City Southern Railway Company, 773 So.2d 670 (La. 2000). There is no definitive way to calculate general damages, Terry v. Simmons 215 So.3d 410 (La. Ct. App. 2017), but a jury should consider the severity and duration of pain and suffering that the injury caused. LeBlanc v. Stevenson, 770 So.2d 766 (La. 2000). The Court of Appeal affirmed the jury’s award of $40,000 in general damages based on the fact that the jury based the amount on evidence that the duration and the severity of Thomas’s injury were low.

    Additionally, much of the evidence revealed discrepancies in Thomas’s accident description. These discrepancies likely reduced Thomas’s credibility with the jury. The Court specifically noted that Thomas’s Facebook posts following the injury were inconsistent with the level of activity that he reported to doctors and that Thomas described the details of the accident differently to six different doctors he visited throughout treatment

    The second issue for the Court of Appeal was whether the jury’s decision to not award Thomas damages for future medical expenses was reasonable. Under Louisiana jurisprudence, a party must provide evidence of the need for future medical expenses through testimony from a medical expert. Terry v. Simmons 215 So.3d 410 (La. Ct. App. 2017). An appellate court must only determine if the jury’s award was reasonable. Menard v. Lafayette Ins. Co. 31 So.3d 996 (La. 2010).

    Here, the Court of Appeal noted that there was no objective medical evidence to show that Thomas continued to suffer pain from the accident. Additionally, several physicians opined that Thomas’s back pain was not caused by the injury but rather by aging. In light of this evidence and Thomas’s failure to show that he would incur expenses for medically necessary future treatment, the Court of Appeal held that the jury’s decision not to award damages for future medical expenses was reasonable.

    The third issue before the Court of Appeal was whether the jury’s award of $34,977 for lost wages was reasonable. A party looking to recover previously lost wages must prove the dollar amount lost and the duration of work missed due to the injury. Boyette v. USAA, 783 So.2d 1276 (La. 2001). The Court of Appeal noted that the jury miscalculated its award for lost wages because it based its figure on 12 months of missed work; Thomas, in fact, could not work for 16 months. Accordingly, given Thomas’s wages of $2,872.33 per month, the jury should have multiplied this figure by 16 months, resulting in a total award for lost wages of $45,957. 

    Next, the Court of Appeal examined the jury’s decision not to award Thomas damages for loss of future earnings. In Louisiana, the loss of future earnings is determined by the decrease in the injured party’s ability to work based on his experience level, type of work, and training. Young v. Marsh, 153 So.3d 1245 (La. Ct. App. 2014). The Court of Appeal affirmed the jury’s decision not to award damages for loss of future earnings based on the fact that Thomas was able to return to performing janitorial duties after the injury as well as Thomas’s failure to provide evidence of the amount of earnings he would expect to lose if he found only a light duty job.  

    The fifth issue for the Court of Appeal was whether Thomas failed to mitigate his damages. In Louisiana, an injured party must reduce damages using reasonable discretion, good faith, and fair dealing. Young v. Marsh (supra). The injured party must comply with whatever treatment is recommended by a healthcare professional reasonably expected to heal the injury. Flemings v. State, 19 So.3d 1220 (La. Ct. App. 2009). An injured party who unreasonably delays medical treatment, where that delay aggravates the injury, is considered to have failed to mitigate damages.

    The trial record indicated that Thomas did not complete all the physical therapy that was recommended and that he did not take all the medication that was prescribed by his doctors. However, the Court of Appeal determined that these failures were the fault of LUBA, not Thomas himself. Since the evidence showed that Thomas reasonably attempted to comply with the recommended medical treatment, the Court of Appeal held that Thomas adequately mitigated damages.

    The sixth issue before the Court of Appeal concerned the jury’s award of $10,000 to Mrs. Thomas for loss of consortium, which Thomas argued was abusively low. A spouse may recover monetary damages for loss of consortium when an injury to a spouse results in loss of companionship, impairment to sexual relations, decreased ability to perform material services, decreased financial support, loss of aid and assistance, and loss of fidelity. La. C.C. art. 2315(B).

    Noting that Thomas was able to help around the house after the injury by performing light duties and that Thomas suffered from high blood pressure and erectile dysfunction for several years before the injury, the Court concluded that the injury did not result in a substantial decrease in the quality of the Thomas’ marriage. Therefore, the $10,000 award for loss of consortium was reasonable and not abusively low. 

    The seventh and final issue for the Court of Appeal concerned the trial court’s prohibition against introducing evidence about the worker’s compensation benefits that Thomas had already received before the trial. The Court determined that since the ban on introducing previously received worker’s compensation benefits is absolute under Louisiana law, the trial court did not err in excluding that evidence from the trial. See La. C.E. art. 414.

    This case demonstrates the importance of retaining an experienced attorney in a workplace injury case. To cite one example, had the attorney representing Thomas failed to notice that the jury incorrectly calculated Thomas’s lost wages award and enumerated that error on appeal, Thomas’s overall recovery would have been reduced by almost $11,000.  

    Additional Sources: THOMAS v.  BOYD ET AL.

    Written by Berniard Law Firm

    Additional Berniard Law Firm Articles on Workers Compensation: Injured Worker Denied Appeal in the City of New Orleans

     

  • Injured Shreveport Worker’s Claim Saved from Dismissal on Summary Judgment in Case Involving an Allegedly Open and Obvious Hazard

    David Cox delivered four pallets of shirk-wrapped material for his employer, Southwestern Motor Transport, in June 2012. The delivery location was the Baker Distributing Company warehouse in Shreveport, Louisiana. Baker’s delivery dock did not have a dock plate. A dock plate is a metal bridge connecting a truck’s back to the loading dock. There is an empty space between the back of the truck and the loading dock without a dock plate. In addition, Cox found that the loading dock was cluttered with several objects. Due to this clutter, Cox could not use a forklift to unload the truck.

    Working alone, Cox managed to get two pallets off the truck with a pallet jack but then used a dolly for the last two pallets. While attempting to get the previous pallet off the truck, Cox’s foot became wedged between the dock and the truck, causing him to fall on his back. Cox filed a lawsuit as a result of being injured.

    In the lawsuit Cox alleged that this fall caused him to have permanent injuries that made him disabled. The injury resulted in Cox receiving worker’s compensation benefits. Cox filed a lawsuit against Baker, arguing that the lack of a working dock plate made the dock unreasonably dangerous, that the lack of a dock plate was not easily visible to parties making deliveries to the warehouse, and that Baker had a duty to provide a safe entrance for parties unloading at the dock.

    Baker filed a motion for summary judgment, arguing that Cox was aware of the lack of a dock plate; this made the hazard open and evident to Cox, thereby insulating Baker from liability for his injuries. The trial court, concluding that the lack of a dock plate was open and obvious to individuals using the loading dock, granted Baker’s motion. 

    A hazard is considered open and obvious when the danger is clear to all who may encounter the hazard. Generally, a defendant is not obligated to protect against an open and obvious risk. Hutchinson v. Knights of Columbus, 866 So.2d 235 (La. 2004). On appeal by Cox, the Second Circuit Court of Appeal for Louisiana acknowledged that the lack of a dock plate was evident to anyone attempting to unload items on the warehouse dock. However, in its view, the overall condition of the dock should also have been assessed when the trial court considered Baker’s motion for summary judgment.

    The Court of Appeal specifically mentioned that other relevant factors — such as the gap between the truck and the dock, the cluttered loading dock area, the inability of a forklift to maneuver the area, and the lack of assistance available to Cox — could have influenced one’s perception of the hazard. Because the trial court did not consider these additional factors, the Court of Appeal held that the decision to grant Baker’s summary judgment motion was improper. Therefore, the Court of Appeal reversed the trial court and remanded the case for reconsideration. 

    Louisiana law insulates premises owners from liability for injuries resulting from open and obvious hazards, showing that the owner of a building is not responsible for every misfortune that a visitor may encounter. Anyone who has suffered an injury on someone else’s property should seek an attorney experienced in premises liability to determine if the facts of the situation establish responsibility on the property owner’s part.

    Additional Sources:  COX v. BAKER DIST. CO., L.L.C.

    Written by Berniard Law Firm  

    Additional Berniard Law Firm Articles on Workers Compensation:  Is Your Employer Liable If You Fall In The Parking Lot?

  • When one employee attacks a supervisor, can a supervisor proceed with a lawsuit against the employer?

    Nurses fighting one another may sound like a scene from daytime television, but unfortunately, this also occurs in real time.  When one employee attacks a supervisor, can a supervisor proceed with a lawsuit against the employer?  A nursing home in Laplace, Louisiana, recently tried to be dismissed from a personal injury lawsuit regarding two of its employees, stating it could not be vicariously liable.   The Louisiana Fifth Circuit Court of Appeal judged this was a question for trial.   

    Two employees of Twin Oaks Nursing Home, Inc. (“Twin Oaks”) in the parish of St. John the Baptist were involved in an altercation in April 2012. A supervisor, Ms. Haynie, approached her employee, Ms. Alford, requesting that Ms. Alford report to her office. When Ms. Haynie turned to walk away, Ms. Alford struck her supervisor repeatedly in the head and neck from behind. Ms. Haynie sustained bruises, scratches, a black eye, and soft tissue damage.  Ms. Alford had numerous prior work violations and justified the attack by stating she wanted Twin Oaks to give her a reason to fire her.  

    Ms. Haynie filed a lawsuit against Ms. Alford and Twin Oaks in the Fortieth Judicial District Court Parish of St. John the Baptist. The District Court dismissed the lawsuit against Twin Oaks, stating that the nursing home could not be vicariously liable because Ms. Alford’s actions were not employment-rooted or incidental to employee performance.  

    The Louisiana Fifth Circuit Court of Appeal disagreed.  An employer may be held liable for an employee’s tortious act if the tortious act was primarily employment-rooted and incidental to the performance of the employee’s duties while occurring on the employer’s premises and during the hours of employment.  See LaBrane v. Lewis, 292 So.2d.216 (La. 1974).  An employer is not liable merely because an act happened on the employer’s premises during working hours. 

    Vicarious liability will be found only when the employee is acting within the scope and in furtherance of their employment duties.  See Baumeister v. Plunkett, 673 So.2d 994 (La. 1996).  However, the Fifth Circuit did note that not every factor above must be met, and each case’s particular set of facts should be carefully analyzed for employer liability.   

    The Fifth Circuit determined that Ms. Haynie presented enough material facts regarding employer liability that should be presented at a trial.  Thus, it was inappropriate for the District Court to dismiss Twin Oaks.  On the date of the altercation, Ms. Haynie was at the nursing home performing her duties.  Ms. Alford stated the attack was partly provoked by her assumption that she would soon be fired, which suggests it was employment-rooted.  Other facts indicated that the conflict between the two women was purely personal.   Either way, enough facts required a trial to determine whether liability for the injuries could be passed to Twin Oaks.   

    Vicarious liability can be tricky territory to tread without an excellent and skilled lawyer, no matter which side of the aisle you find yourself on. It is vital that anyone caught up in a dispute involving employer liability seek appropriate legal advice. 

    Additional Sources: Demetris Haynie and Curtis Young Sr. Versus Twin Oaks Nursing Home, Inc. and Annie Alford 

    Additional Berniard Law Firm Articles on Employer Vicarious Liability: Court of Appeals Examines the Scope of Employment Requirement for Vicarious Liability

  • Permanently Disabled Individual Not Acting Under Scope of Employment In Workers’ Compensation Case

    Unfortunately, accidents at the workplace are not uncommon occurrences. What happens, however, when you are injured while traveling? Will you still receive workers’ compensation if you are not physically on the jobsite? The answers to these questions will depend on the facts of the case and whether you were acting within the scope of your employment. The following Caddo Parish case outlines this predicament.  

    It is undisputed that Mitchell Stringer was hired at Hand Construction, LLC, sometime after September 30, 2014, and that he was asked to attend a meeting at the company office by John Provost, Vice President for the company, in early October. However, the parties disagree on whether Stringer was terminated at the meeting, as testified by Provost and Adam Hubble, CEO for the company, or was told there would not be any more work for him, but that he would receive two weeks’ severance pay, as testified by Stringer. Stringer’s final paycheck included the date “October 9, 2015.” He was issued a check with “severance” in the ledger for the week ending in October 16, 2015. 

    It was also disputed as to whether or not the parties agreed that Stringer would fly to North Dakota to retrieve his vehicle and the company’s GPS equipment. Regardless, on October 8, 2015, Stringer flew to North Dakota to obtain his vehicle and company equipment. Two days later, while traveling from North Dakota to Louisiana, Stringer was involved and injured in a motor vehicle accident in Arkansas.

    As a result of his injuries, Stringer was hospitalized and underwent a minimum of ten surgeries. He also sustained permanently disabling injuries, although he was able to return to modified employment with an employer in Alabama in 2017. 

    Stringer ultimately brought a Disputed Claim for Compensation, where he requested, in part, wage benefits, payment of medical expenses, and authorization for additional medical treatment against Hand Construction, LLC. The Office of Workers’ Compensation, District 1-W for the Parish of Caddo, found that Stringer was told at the October meeting that he was no longer performing services for the company and subsequently entered judgment in favor of the company. Stringer then filed this appeal with the Louisiana Second Circuit Court of Appeal. 

    In order to bring a compensation action, the claimant must be able to establish an injury by an act arising out of, or in the course of, employment. La. R.S. 23:1031(A). Additionally, when reviewing, a court does not determine whether the Workers’ Compensation Judge was right, but only if the findings were reasonable. See  Buxton v. Iowa Police Dept..   

    The Court of Appeal found the main issue in this case to be whether Stringer was employed by Hand Construction, LLC at the time of the automobile accident in Arkansas on October 10th. After hearing the evidence, the Court of Appeal found that Stringer’s trip to North Dakota was primarily a personal mission, he was not paid for the trip, and his plan to send back the company equipment did not extend or renew the employment relationship. As such, the Court of Appeal found no manifest error in the Workers’ Compensation Judge’s findings that Stringer’s employment had been terminated at the early October meeting and, therefore, his accident and subsequent injuries did not arise out of, or were in the course of, employment with Hand Construction, LLC.    

    As seen by the outcome of this case, it is important to fully understand the status of your employment at all times. If you have any questions as to whether you were injured within the course of employment, however, contact a personal injury attorney with ample experience in these matters. 

    Additional Sources: MITCHELL STRINGER versus HAND CONSTRUCTION, L.L.C.

    Written by Berniard Law Firm Blog Writer: Samantha Calhoun

    Additional Berniard Law Firm Articles on Workers’ Compensation: Worker Entitled To Workers’ Compensation From Injuries From Passing Out At Work — Louisiana Personal Injury Lawyer Blog

    Are Mental Injuries Covered By Workers’ Compensation?