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Category: Workplace Accidents

  • Can An Independent Medical Examiner Determine Maximum Medical Improvement in a Worker’s Compensation Case?

    Being injured at work is never what you want to deal with. What’s worse is dealing with multiple independent medical examiners making opinions on your medical state. In the following case, the Louisiana Court of Appeal First Circuit addresses whether a medical examiner’s determination of maximum medical improvement is closely related to the worker’s condition and ability to work.

    Ella Hamilton injured her neck and shoulders while moving trash bags into a dumpster while working as a custodian for GCA Services. Hamilton filed a workers’ compensation claim, and GCA Services paid indemnity and medical benefits to and on behalf of Hamilton in connection with her workers’ compensation claim. A dispute arose between the doctors that reviewed Hamilton’s alleged injuries and whether or not he could return to work.

    Dr. Charles Bowie, a neurosurgeon, diagnosed Hamilton with a cervical disc disorder and opined that she required cervical fusion surgery. He believed her injuries prevented her from working. On the other hand, Dr. David Ferachi, an orthopedic surgeon representing GCA Services, agreed with Dr. Bowie but stated that Hamilton could return to work as a custodian with certain limitations.

    Due to these differing opinions on Hamilton’s ability to work, GCA Services filed a request for Independent Medical Examiner (“IME”) under La. R.S 23:1123. This request was granted. Hamilton asked that the workers’ compensation judge prohibit the medical examiner from addressing any other issues, such as his medical condition, causation, maximum medical improvement, and whether medical treatment is reasonable and necessary. The judge agreed with Hamilton and limited the IME to address Hamilton’s capacity to work. GCA took an appeal of the order.

    The Court of Appeal First Circuit disagreed with the District Court and held that under La. R.S 23:1123, the “condition of the employee” does include maximum medical improvement. This means the scope of the examination the independent medical examiner may address includes the issue of maximum improvement. The Court explained that because the maximum medical improvement is closely related to condition and ability to work, the medical examiner can determine the maximum medical improvement of Hamilton in this case without having to show what the cause of injury was.

    The Louisiana Court of Appeal First Circuit also noted the scope of the independent medical examination should not be limited, per Hamilton’s claim. This is because the independent examiner can provide an opinion of the necessary information without revealing the actual causation of those injuries during an IME. Therefore, the Appeals Court partially reversed the trial court’s ruling to the extent that it restricted the independent medical examiner from determining maximum medical improvement. 

    While each case should be carefully analyzed based on specific facts, this court ruling answered whether the scope of an independent medical examination could be limited in workers’ compensation cases. The answer, in this instance, was determined to be yes.

    Additional Sources: ELLA HAMILTON VS. GCA SERVICES GROUP, INC. 

    Written by Berniard Law Firm Writer Brianna Saroli

    Additional Berniard Law Firm Articles on Workers Compensation: While Injured Worker Claims Late Payment, Louisiana’s First Circuit Court of Appeals Focuses on Important Date & Workers Compensation

  • Understanding the Impact of Settlement on Workers’ Compensation Benefits in Louisiana

    Suppose you are considering settling a lawsuit related to injuries on the job. In that case, it is essential to understand how a potential settlement of a related claim could affect your workers’ compensation benefits. What happens to your workers’ compensation benefits if you settle a related lawsuit without written approval from your employer and their workers’ compensation insurer? The following case helps answer that question.

    While working at Mouton Plumbing, Terrell Talbot was involved in a car accident. Mouton Plumbing and its workers’ compensation insurer accepted Talbot’s claim under La. R.S. 23:1021. He received $69,265.02, consisting of workers’ compensation indemnity benefits of $23,487.86 and medical expenses of $45,777.16. Talbot filed a lawsuit against the other individual involved in the car accident and her insurer. Pursuant to La. R.S. 23:1102(A), Talbot notified Mouton Plumbing and its insurer in writing about the lawsuit. They intervened in Talbot’s case. Talbot settled the lawsuit for $107,389,73 but did not obtain written approval from Mouton Plumbing or its insurer. As a result, the insurer ended Talbot’s workers’ compensation benefits. 

    Under La. R.S. 23:1102(B), a worker is not entitled to workers’ compensation benefits if he does not obtain the employee or insurer’s approval to settle a related lawsuit. However, an employee can reclaim his workers’ compensation benefits through a “buy-back provision.” When Talbot’s benefits were terminated, a lien from Mouton Plumbing’s insurer was not satisfied. As a result, the $28,730.84 due to Talbot from the settlement, after deducing attorney’s fees and costs, was paid directly to the insurer to satisfy the lien. 

    Talbot claimed that payment satisfied the buy-back provision. Mouton Plumbing and its insurer claimed this payment did not fully “buy back” Talbot’s workers’ compensation benefits. All the parties filed summary judgment motions. The workers’ compensation judge held the $28,730.84 payment restored Talbot’s workers’ compensation benefits. However, Mouton Plumbing and its insurer were entitled to additional credits against Talbot’s future benefits. Mouton Plumbing and its insurer appealed, arguing that the trial court erred in calculating the “buy back” amount and finding the “buy back” was satisfied. 

    Because the appellate court had to interpret applicable statutes, it reviewed the trial court’s conclusions to see if they were legally correct. Here, the trial court correctly applied  La. R.S. 23:1102(B) in subtracting Talbot’s attorney fee from the lien amount paid to Moulton Plumbing’s insurer. However, the trial court erred in the amount of attorney fees it deducted. Because of this error, the trial court adjusted Talbot’s award to reflect a credit of $2,421.71. Otherwise, the appellate court agreed with the trial court’s award. 

    The appellate court explained the trial court correctly determined Talbot’s buy-back payment would not exceed the 50% statutory cap. The appellate court refused to consider other new arguments the parties raised on appeal related to the trial court’s calculation of the buyback amount.

    Talbot argued the trial court erred by not including the amounts of medical bills paid by his attorney that he claims Moulton Plumbing should have paid. The appellate court found this was a genuine issue of material fact about whether these bills were incurred due to Talbot’s injury. Therefore, the appellate court remanded the case back to the workers’ compensation court to determine that issue. 

    Settling a lawsuit related to work-related injuries without obtaining written approval from your employer and their workers’ compensation insurer can result in the termination of your benefits. This case serves as a reminder of the importance of seeking legal advice to navigate the complexities of settlement and protect your rights. Consulting with an experienced attorney is essential to ensure compliance with legal requirements and maximize the potential benefits from your workers’ compensation claim.

    Additional Sources: Terrell Talbot v. Mouton Plumbing and Hauling, lnc. and Liberty Mutual Ins. Co.

    Additional Berniard Law Firm Article on Settlements involving Workers’ Compensation Claims: Louisiana First Court of Appeal Illustrates How Settlement of Claims is Res Judicata Between Litigants in Tangipahoa Workers Compensation Lawsuit

  • Office of Workers’ Compensation Exceeded Authority By Shortening Prescription Period

    Navigating bureaucracy and red tape is a common experience when dealing with government agencies and trying to obtain workers’ compensation benefits. However, if you find yourself frustrated by what seems like an improper requirement, you might be able to challenge an administrative agency’s actions as exceeding its authority, as Calvin Arrant did here. 

    While working at Wayne Acree PLS, Arrant was involved in an accident where a truck that ran a red light hit his vehicle. Arrant consulted an attorney and then met with an orthopedic surgeon because he started having back pain that went down his legs. The doctor recommended an MRI. 

    His attorney contacted Acree’s workers’ compensation carrier to determine if it would agree to cover the MRI. Twice, Arrant requested approval for the MRI from the medical director under La. R.S. 23:1203.1. Both times, the medical director denied Arrant’s request via fax. 

    Arrant filed a Disputed Claim for Compensation with the Office of Workers’ Compensation (“OWC”) to review the medical director’s denial of his request for the MRI. Wayne Acree and its workers’ compensation carrier filed an exception of prescription, claiming Arrant failed to appeal the decision within 15 calendar days of receiving the denial from the medical director. The OWC ruled in favor of Wayne Acree, finding that Arrant had not timely filed his appeal within the required 15 calendar days (called the prescription period). The Louisiana Second Circuit Court of Appeal affirmed the decision in favor of the defendants. Still seeking to remedy the problem, Arrant appealed to the Louisiana Supreme Court.

    The Louisiana Supreme Court considered whether the medical director exceeded the authority the Louisiana Legislature delegated to it by creating a 15 calendar day period for an injured worker to appeal the denial of a request for medical treatment. The Court first considered whether the statute that created the OWC (La. R.S. 23:1291) provided the medical director with authority to implement a 15 calendar day period for an injured worker to appeal a medical director’s finding. The statute did not explicitly provide this authority. 

    The Court explained the Louisiana Legislature has the authority to establish time limits for someone to bring a legal claim. See La. C.C. art. 3457. Under La. R.S. 23:1203.1, the OWC has statutory authority to create rules to provide the standard medical treatment for injured workers and a process for an injured worker to request different treatment and appeal a denial of that request. However, the Legislature already created a prescriptive period for bringing claims like Arrant’s related to medical benefits in La. Rev. Stat 23:1209, the OWC did not have the authority to create and enforce a shorter prescriptive period. 

    Therefore, the Louisiana Supreme Court found that the hearing officer erred in sustaining the defendants’ peremptory exception of prescription and remanded for the Office of Workers’ Compensation to evaluate Arrant’s claim that the medical director did not appropriately apply medical treatment guidelines when he denied Arrant’s request for an MRI of his spine. 

    As demonstrated by Arrant’s case, it is possible to challenge administrative agencies that exceed their authority. The Louisiana Supreme Court’s ruling sheds light on the importance of understanding the boundaries of agencies such as the Office of Workers’ Compensation (OWC) and seeking legal counsel to navigate the workers’ compensation scheme effectively. If you are entangled in a similar situation, consulting with an experienced attorney becomes crucial to explore potential remedies and protect your rights.

    Additional Sources: Calvin Arrant v. Wayne Acree PLS, Inc. & Louisiana Workers’ Comp. Corp.

    Additional Berniard Law Firm Article on Prescription Periods: Trial Court Decision Overturned Due to Prescription Period Expiring

  • Louisiana Court Bars Recovery for NOPD Officer Who Tested Positive for Morphine on the Job

    Random drug testing is common practice for certain jobs. What remedy does a police officer have when he takes a morphine pill for pain and is randomly selected for a drug test the following day when he comes into work?

    Officer Mario Cole was randomly chosen to undergo a standard drug screening for his job at the New Orleans Police Department (NOPD). When he took the test, he tested positive for morphine. As a result, Cole was suspended pending investigation by the NOPD. Sergeant Lesia Latham Mims interviewed Cole and his fiancée as part of her investigation. Cole claimed he injured himself while lifting weights the day before. His fiancée gave him one of her prescription pills for his pain. Cole alleged he believed it was a regular pain reliever. The department next conducted a pre-disciplinary hearing. At the hearing, it was decided Cole’s employment would be terminated for violating NOPD rules against drug use. Cole appealed. 

    On his appeal, Cole argued the decision to terminate his employment was an abuse of discretion because: 1) the board found him to be under the influence of morphine when he came to work, 2) the board found there was a relationship between the violation and his ability to operate as a public servant, and 3) his termination was found to be the proper course of action for his offense.

    The Louisiana Court of Appeal for the Fourth Circuit reviewed the appeal. To overcome an appeal before the New Orleans Civil Service Commission (CSC), the appointing authority must show: 1) the activity in question happened and 2) the conduct was substantially related to appointing authority’s operations. If the appointing authority was warranted in its disciplinary action, it must then determine if the discipline was “commensurate with the offense.” See Gast v. Department of Police, 137 So.3d 731 (La. Ct. App 2014). The appointing authority bears the burden of proof for each element. 

    Cole argues the NOPD did not meet its burden in proving he was incapacitated due to the morphine on the day of his drug screening. He argued his ability to serve was not impaired. NOPD put a toxicology expert on the stand, who testified Cole’s levels of morphine were fifty percent higher than NOPD’s permitted cutoff. Sergeant Mims testified it is against NOPD policy to take prescription medications not prescribed to the person taking them. The Deputy Superintendent testified about the danger of drug violations. He claimed officers could not be impaired by drugs when carrying out their duties as public servants. In his opinion, to the department’s no-tolerance policy for drugs, termination was appropriate. 

    Looking at the record, the CSC determined the NOPD established by a preponderance of the evidence Cole was under the influence of morphine and did not alert the NOPD of his impairment. The appeals court agreed with this determination. The court also found the termination was commensurate with the offense because of the dangers associated with being under the influence while on the job as a police officer. 

    This case demonstrates the challenges one faces while filing an appeal. An experienced lawyer will ensure you can meet (or beat) the necessary elements of the case at trial and on appeal. 

    Additional Sources: MARIO COLE versus DEPARTMENT OF POLICE

    Written by Berniard Law Firm Blog Writer: Gabriela Chilingarova

    Other Berniard Law Firm Articles on Work Procedures and Lawsuits: New Orleans police officer’s disciplinary violation is reversed

  • When Coworkers Attack: Negligence Claims for Intentional Workplace Injuries

    An employee injured at work while performing the functions of her job is generally entitled to worker’s compensation. But what about a worker injured on the job by the intentional act of a fellow employee? An action for recovery due to employer negligence could be a better option.

    Louisiana worker’s compensation law does not provide coverage for employees injured during an incident unrelated to their workplace activities, for example, an altercation between co-workers arising out of personal issues. R.S. 23:1031E. 

    Instead, an employer may be liable for negligence if it had reason to believe its employee(s) could be attacked at work but failed to intervene. Posecai v. Wal-Mart Stores, Inc.. Courts will consider whether the employer had information suggesting an incident might occur and, if so, when it was received and what level of detail was available to help determine the appropriate response. See Carr.

    Towana Carr was injured during her shift at Sanderson Farms when she was struck by a pallet jack carrying a ton of dry ice. She was hit once in the leg and again in the chest. This was not the result of Carr being in the wrong place at the wrong time. It was the intentional act of her co-worker, Kevin Michael Webb, a man with a track record for acting aggressively and making threats.

    Carr filed a petition against Sanderson Farms and Webb in the Parish of Tangipahoa. She accused Sanderson Farms of negligently failing to prevent Webb’s attack, a claim dismissed by the district court – twice – for failure to state a cause of action. When Carr appealed for a second time, however, the First Circuit Court of Appeal overturned the lower court’s judgment, finding the additional details Carr provided in her amended petition formed a sufficient basis for a negligence claim.

    According to Carr’s amended complaint, Sanderson Farms was aware of Webb’s history of fighting and domestic abuse. Carr had also reported a tense encounter she had with Webb outside of work and his threatening remarks that made her fear for her safety (“I’ll get at you. I work with you.”) In response, her superiors claimed there was nothing they could do, at least not until the behavior appeared at work. Less than three weeks later, Webb attacked Carr with the pallet jack.

    Assuming the facts of her petition to be true, Carr had a valid negligence claim against Sanderson Farms. An employer must exercise reasonable care for its employees’ safety, which means taking steps to protect workers from foreseeable harm. See Martin. Here, Sanderson Farms failed to protect Carr’s safety despite having three weeks to act on a credible report that a known perpetrator of violence threatened to attack her at work.

    The Court of Appeal found that Carr had a valid cause of action in negligence against Sanderson Farms because she corrected the deficiencies in her original pleading with pertinent details. Carr v. Sanderson Farms illustrates that a well-crafted complaint is essential for efficiently litigating a negligence claim. A good injury lawyer will work with a client to generate a complaint that withstands the court’s scrutiny and keeps the process moving toward a resolution. 

    Additional Sources: Carr v. Sanderson Farms

    Written by Berniard Law Firm Blog Writer: Emily Toto

    Additional Berniard Law Firm Article covering Carr’s original lawsuit: Coworkers Conflict In Tangipahoa Parish Turns Physical and Costly

  • How Does a Pre-Existing Injury affect your Workers’ Compensation Claim?

    When people are injured at work, they expect to be compensated for an extended period. However, worker’s compensation can be hard to recover. So how does a pre-existing injury affect your workers’ compensation claim? The following lawsuit from Metairie, Louisiana, helps answer this question. 

    Sharon Mangiaracina suffered a work-related injury to her shoulder and thumb when she fell from an allegedly defective chair while working for Avis Budget Group, Inc. (“Avis”). Mangiaracina claimed the shoulder injury already existed but was worsened after the accident. The fall led to surgery on the injured shoulder. Due to the pre-existing nature of the shoulder injury, Avis and its insurer, CNA, refused to pay for the surgery. As a result, Mangiaracina’s health insurance paid for most of her medical bills, and she sustained some out-of-pocket expenses. She filed a claim for compensation for medical and indemnity benefits from Avis and CNA. 

    The worker’s compensation judge found Mangiaracina suffered from a pre-existing injury that was worsened by the work-related injury for which she deserved compensation. Accordingly, the judge awarded Mangiaracina weekly temporary total disability benefits. Avis was also ordered to pay for all medical and travel expenses from the sustained injuries. Therefore, a pre-existing injury did not affect Mangiaracina’s workers’ compensation claim in this case.

    Avis appealed the judgment of the trial court. Avis argued Mangiaracina failed to show her surgery and medical treatment were connected to the accident. The appeals court affirmed the trial court’s judgment. That decision was followed by procedural motion practice at the trial court. Essentially Avis argued it didn’t have to pay for certain medical bills already reimbursed by Mangiaracina’s health insurer. The trial court’s judgment was then “clarified” by that court, which altered it according to Mangiaracina. She appealed to the Fifth Circuit Court of Appeal of Louisiana, seeking to enforce the court’s original judgment.

    An amendment to a final judgment is permissible if it does not change the substance of the judgment. La.C.P. art. 1951. The appeals court decided the worker’s compensation court was clarifying its judgment and did not add anything to alter the substance. Therefore, Avis and CNA were still responsible for paying the medical expenses. 

    The court also found Mangiaracina was not entitled to reimbursement directly for the medical bills paid by her insurance. In addition, under La. R.S. 23:1203 and La. R.S. 23:1034.2, the court found the worker’s compensation judge did not err in deciding the defendants must pay for all the medical expenses following a fee schedule. These rules state the employer is required to take care of all medical-related issues that arise from a work-related injury and a reimbursement schedule shall be established, but any fees in excess will not be recoverable. Overall, the court found no merit to Mangiaracina’s arguments and affirmed the decision of the worker’s compensation court. 

    Being out of work due to an injury can be stressful especially if the employee is not receiving worker’s compensation. However, the employee should be entitled to some sort of worker’s compensation when hurt on the job. Here, the court decided Mangiaracina was entitled to the payment of her medical bills and judgments could be clarified as long as they were not altered. 

    Additional Sources: Sharon Mangiaracina v. Avis Budget Group, Inc.

    Written by Berniard Law Firm Writer: Alivia Rose

    Additional Berniard Law Firm Article on Worker’s Compensation: Does Your Work-Related Accident Qualify for Workers’ Compensation Benefits?

  • When do you Need your Doctor’s Testimony to Win your Workplace Injury Lawsuit?

    When injured on the job, your doctor knows best until you get a second opinion. While your primary care doctor may advise you to recover instead of resume working right away, if you get a second opinion that finds you capable of working, that second opinion can trump your primary care doctor’s opinion. 

    In the Louisiana civil service world, an employee cannot refuse to go to work if they have not presented a viable reason for their inability to work. If a civil servant refuses to work, they could be terminated. While our court system sympathizes with people injured on the job, if one doctor says you can work, you need to present testimony from a doctor that you cannot work at the pre-termination hearing or risk losing your job. The following lawsuit out of New Orleans helps answer this question; when do you need your doctor’s testimony to win your workplace injury lawsuit?

    Kerry West was injured on the job while a classified employee with twenty-five years of experience working for the Sewerage and Water Board of New Orleans (S&WB). Although  West’s primary care physician ordered him to recover and not return to work, S&WB sent West to get a second opinion. This second opinion found West was capable of “light duty.” Accordingly, s&WB assigned West to a light-duty position for the duration of his recovery, but West followed the advice of his primary care physician and did not return to work. 

    West was terminated for refusing to work after a hearing. He appealed the ruling through the Civil Service Commission for the City of New Orleans, which found his termination justified. His next step was to appeal to the Court of Appeal Fourth Circuit for the State of Louisiana. 

    West claimed in his appeal the Civil Service Commission erred in its ruling because they found West had not presented a sufficient reason for his refusal to return to work. West refused to return to work because his primary care physician told him he needed to recover. West deferred to the opinion of the doctor he knew and trusted rather than the doctor that was assigned to him for a second opinion. 

    According to Civil Service Rule IX § 1.1, a civil service employee can be terminated for being unwilling or unable to perform their job duties. The court of appeals will only overturn a termination determination by the civil service commission if the commission clearly got the facts wrong in the case or if the termination determination was “arbitrary, capricious, or characterized by abuse of discretion.” Walters v. Dept. of Police of the City of New Orleans. An “arbitrary or capricious” determination is one that does not have any logic or “rational basis” behind it. Shields v. City of Shreveport. For the Commission to properly terminate an employee for violating Civil Service Rule IX § 1.1, the commission need only show the employee had failed to present a valid reason for their unwillingness to work. 

    In this case, West refused to work. He supported this refusal by pointing to the opinion of his primary care physician, but he failed to have that physician actually testify before the commission. Without the official testimony from his doctor, the commission’s only evidence in support of West’s side was the testimony of West himself about what his doctor had told him.

    On the other side, the Commission had opinions from two different doctors, including the one that gave the second opinion to West, which indicated West could work. Because West failed to present the testimony of his primary care physician to the commission, the commission could logically only believe the testimony of the two healthcare professionals against West. 

    In the legal world, what a doctor says only matters if they say it in front of a judge. There is no doubt West legitimately followed the advice of his primary care physician when choosing to recover as opposed to returning to work. Still, West needed to present that advice in a legitimate legal format. While our legal system seeks to enforce the most just solutions to problems, it can only do so with legitimate forms of evidence. The professional opinions of doctors and medical professionals are essential in winning workplace injury cases. Without it, the court cannot support any opposition to alternative medical opinions. Expert lawyers know the importance of this evidence and can help you present the best evidence available to win your case. 

    Additional Sources: West v. Sewerage and Water Board. 

    Written By Berniard Law Firm Writer: Ethan W. Seitz

    Other Berniard Law firm Articles on Cases that Fail Due to Expert Testimony: Louisiana Court of Appeal Dismisses Medical Malpractice Lawsuit Due to Absence of Expert Testimony

  • When Does the Date of Disability Start for a Workers’ Compensation Claim?

    When you are injured on the job, it’s not always your employer’s or fellow employee’s fault. If you are injured while working by a third party, there are rules to follow when settling your claims. Following those guidelines is important because if you don’t, you may alter the workers’ compensation benefits owed to you.

    Below is a story of one worker’s workplace injury and his path to physical and financial recovery. This case shows the importance of getting authorization from your workers’ compensation carrier before settling with third parties. It also helps answers the question; When does the date of disability start for a workers’ compensation claim?

    While driving at work in early August 2012, Clyde Tolley was injured in a car accident. He continued to work until he was fired. Tolley then moved to Florida, where his injuries worsened. Tolley consulted a Florida doctor who recommended seeing an orthopedic specialist. Unfortunately, Tolley waited a year before engaging with the specialist. 

    In November 2013, Tolley entered into a settlement with the driver of the car who injured him. However, it appears Tolley did not get authorization from his workers’ compensation insurance before accepting the settlement. When such a settlement occurs, the court deems the settlement an “unauthorized settlement.”

     An unauthorized settlement is one that is not pre-approved by a disabled person’s employer before acceptance; by accepting this unauthorized settlement, Clyde was forced to forfeit part of his disability payout, which he is required to pay back to the insurance company. Tolley initially brought his case to the office of worker’s compensation, where most of his claims were denied. However, after two retrials, Tolley moved on to the Court of Appeal Fourth Circuit in hopes of overturning the workers’ compensation judge’s rulings against him. 

    First, Tolley argued the date of disability was incorrectly determined at the trial court. The argument brought up the question; When does your date of disability start? 

    The date the disability develops is usually determined as the time when it becomes clear the worker can no longer satisfactorily perform their employment duties. Seven v. Schwegmann Giant Supermarkets, Inc. For disability for workplace accidents, a party must have a doctor find that they are, in fact, disabled and that disability resulted from their workplace accident. After an individual is considered occupationally disabled by a medical professional, they are usually entitled to receive disability payments from their employer’s insurance. This date will be calculated from the date of their diagnoses to the date of their recovery or other payment-ending circumstance, such as accepting a non-approved settlement.  

    When did Tolley’s disability date start?  Tolley was fired from his occupation for unsatisfactory performance due to factors other than his disability.  Tolley was designated as “non-occupationally disabled on August 22, 2012, which means he was disabled for reasons other than his workplace accident.  Tolley didn’t receive treatment until July 10, 2013, when a doctor found him disabled and attributed that disability to his workplace accident. The court of appeals found the district court did not err when determining Tolley is to be considered disabled as of July 10, 2013, because Tolley failed to prove he was disabled due to his workplace injury before the July date. 

    Once the court determined when Tolley was disabled, they considered what benefits he was entitled to and for what duration. The appeals court awarded damages from July until Tolley accepted the unapproved settlement. But, Tolley was required to pay his entire unauthorized settlement, less attorney’s fees, back to the insurance company. 

    Usually, when you have a disability payment scheme, you cannot settle with outside sources without prior approval from your employer’s insurance provider. Louisiana Revised statute 23:1102(B) states that if an employer failed to receive approval from his employer before settlement with the third party, they owe money back to their employer’s insurance in a “dollar-for-dollar credit for future medical expenses equal to the settlement, less attorney’s fees. Mercer v. Nabors Drilling USA, L.P. 

    By accepting an unapproved third-party settlement, Tolley lost out on future medical expenses from his employer’s insurance. However, he could still recoup the costs of his disability before he accepted the unauthorized settlement. 

    Personal injuries while on the job present challenges to daily life. These challenges manifest themselves as both physical and financial hurdles to get over. Disability payment insurance provides a means to alleviate the financial woes of a workplace injury, but obtaining these payouts can take years and multiple court dates. While a one-time settlement may seem like a good deal and a quick payout for your lawyer, it is sometimes worth fighting the good fight in the courts to get the just compensation you deserve. Dedicated lawyers with experience in workplace injury disputes can help you fight to get what you deserve. 

    Additional Sources: CLYDE TOLLEY VERSUS JAMES CONSTRUCTION GROUP, LLC

    Written By Berniard Law Firm Writer: Ethan W. Seitz

    Additional Berniard Law Articles on Workers’ Compensation: Terrebonne Auto Mechanic Injured Twice on the Job, Hospital that provided Medical Services Barred from Full Recovery

  • What do I need to Prove for A Slip and Fall Lawsuit in Louisiana?

    If you are walking down the aisle of a store and fall and injure yourself, you may think you have a winning lawsuit. However, that is not always the case. A recent lawsuit out of Gretna, Louisiana, establishes what a plaintiff needs to prove when filing a slip-and-fall lawsuit in Louisiana. 

    Terry Collins was walking down one of the lumber aisles in a Home Depot in Gretna, Louisiana when he slipped and fell on a liquid substance spilled on the floor. Home Depot and ISS Facility Services, Inc. had a Maintenance Services Agreement and before Collins fell, ISS employees used a floor-cleaning machine around where Collins slipped. Following the accident, Collins and his wife filed a lawsuit against Home Depot and ISS.

    Home Depot moved for summary judgment, asking the court to decide in its favor based on the current facts. Home Depot argued under La. R.S. 9:2800.6. Collins failed to prove Home Depot had actual or constructive notice, meaning Home Depot employees were actually aware of or should have been aware of the spilled liquid in the aisle. 

    La. R.S. 9:2800.6 requires plaintiffs who are suing businesses to prove that (1) the store owed the plaintiff a legal obligation to keep the premises safe and free of hazards, such as the slippery substance (2) the dangerous condition presented an unreasonable risk of harm and that risk was foreseeable (3) the defendant had actual or constructive notice of the condition prior to the accident and (4) the defendant failed to exercise reasonable care. Reasonable care is defined as what a reasonable business would do in the same or similar circumstances. 

    In support of its motion for summary judgment, Home Depot attached the plaintiffs’ petition for damages and a portion of Collins’ deposition testimony. The testimony revealed Collins had been down the aisle where he fell twice within 30 minutes. The second time Collins walked down the aisle, he said he slipped on liquid streaks he believed were caused by the ISS employees. However, Collins said he had never witnessed the employees cleaning the floor when he walked down the aisle for the first time. 

    Further, Home Depot also attached an affidavit from Christina LaBbombard, a Home Depot Senior Manager, which confirmed the Maintenance Service Agreement between ISS and Home Depot was in effect on the day Collins was injured. The affidavit also revealed ISS employees were not on Home Depot payroll and Home Depot had no authority or control over how the ISS employees performed their work. Further, Home Depot did not own the floor-cleaning machine the ISS employees used to clean the floor. Lastly, Home Depot included another affidavit from the Assistant Store Manager, James Barger. Barger said he went to the aisle within minutes of Collins falling and he never saw any liquid on the floor. According to Barger, no Home Depot employees used the floor-cleaning machine and no other customers complained of any liquid on the floor. 

    After a hearing, the trial court granted Home Depot’s motion for summary judgment because ISS was an independent contractor and the plaintiffs failed to prove Home Depot had any knowledge of the condition. The plaintiffs then filed an appeal seeking to overturn the summary judgment ruling. The court of appeals first considered whether Home Depot created the dangerous condition, causing Collins to fall. Collins argued there was a reasonable dispute as to whether the ISS employees could be considered Home Depot Employees, making the company liable under vicarious liability. 

    Vicarious liability is when employees are liable for the actions of their employees when they are acting within the scope of their employment. Ultimately, the court found Home Depot did not have enough control over the ISS employees to make the company vicariously liable. This is because Home Depot did not have any authority over how the ISS employees conducted the maintenance and Home Depot did not supervise the ISS employees. Next, the court evaluated whether Home Depot had constructive knowledge of the liquid. Under La. R.S.9:2800.6(B)(2) plaintiffs to have present “positive evidence” of the existence of the condition before the accident in order to establish constructive knowledge. Collins failed to present any such evidence and Home Depot provided evidence no other customers complained of any liquid on the floor. 

    This case makes clear although a slip and fall may have occurred within a certain business, the business may not be at fault if an independent contractor caused the supposed condition. This emphasizes the importance of naming the correct defendants in a lawsuit and presenting enough evidence in order for the case to make it to trial. It also helps show what is needed to prove a slip and fall lawsuit in Louisiana.

    Additional Sources: TERRY COLLINS & LAINIE COLLINS VERSUS THE HOME DEPOT, U.S.A., INC.

    Written by Berniard Law Firm

    Other Berniard Law Firm Articles on Slip and Fall Accidents: Wal-Mart Not Liable For Slip And Fall Accident in Houma, Louisiana

  • Fax Filing A Lawsuit, Make Sure You Follow the Rules Precisely

    After a workplace accident, an employee may be flustered, but it is essential that the employee promptly becomes knowledgeable about court requirements and deadlines. If a claim is not filed within an allocated timeline, the claimant may be barred from bringing the claim forward. The following case out of Jefferson Parish shows why, if you’re fax filing a lawsuit, you must follow the rules precisely. 

    On January 9, 2014, Mr. Palazola fell from a raised platform while in the course and scope of his maintenance job. About a year later, on January 6, 2015, he filed a facsimile petition for damages with the 24th Judicial District Court for Jefferson Parish. On January 23, 2015, the clerk’s office received a copy of Mr. Palazola’s petition with formatting differences from the previously filed facsimile petition.

    The defendants, IMC Consulting, Landry Construction, and Cali & LaPlace Engineers, responded by filing an exception of prescription because Mr. Palazola’s facsimile did not meet the requirements outlined in La. R.S. 13:850. According to Louisiana Revised Statute 13:850, facsimile transmission provides that:

    1. Filing is considered complete at the time the facsimile is transmitted and received by the clerk of court. 
    2. Within seven days, exclusive of legal holidays, the following should be given to the clerk: (1) The original signed document. (2) The applicable filing fees. (3) A five-dollar transmission fee. 
    3. If the party fails to meet the requirements above, the facsimile filing will have no effect. 

    The defendants argued Mr. Palazola did not forward the original petition to the clerk’s office within the 7-day deadline. Therefore, his facsimile had no effect. After a hearing, the trial court sustained the defendants’ exceptions and dismissed Mr. Palazola’s claims.

    On appeal, Mr. Palazola contended the court made an error by accepting the defendant’s exception of prescription because his lawyer did forward the original petition within the mandatory timeframe. Mr. Palazola produced his lawyer’s affidavit, which stated the legal assistant informed him it had been filed via facsimile on January 6, 2015, and that she had personally mailed the original petition to the post office on January 7, 2015. 

    At the hearing on the exception, the defendants argued that Mr. Palazola did not meet the requirements of La. R.S. 13:850 because he did not file the initial petition. The record showed two petitions which contained the exact wording but were spaced differently, formatted differently, and contained different paginations. The defendants also stated there was no evidence Mr. Palazola’s lawyer forwarded the original signed document within the requisite time. The record showed a stamp on the second petition that the clerk’s office received the original petition on January 23, 2015, seventeen days after the facsimile transmission.  

    It was unclear from the judgment and record whether the trial court found that Mr. Palazola did not prove all elements under La. R.S. 13:850(B) because he did not forward the original signed document or did not send the petition within the requisite time. Nevertheless, the appeals court found either reason would justify affirming the defendant’s exception of prescription.

    Following procedure and timelines are critical in all lawsuits, as can be seen in Palazola’s case. No one wants to be a victim twice (once from injury and secondly from late filing.) Therefore, when proceeding with an injury lawsuit, ensure you have plenty of time to correct any procedural flaws before it’s too late. 

    Additional Sources: Tracy Michael Palazola V. IMC Consulting Engineers, Inc.; Comfort Engineered Systems, Inc.; Cali & Laplace Engineers, LLC; And Landry Construction, INC.

    Written by Berniard Law Firm Blog Writer: Needum Lekia

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