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  • Worker Entitled To Unpaid Compensation Owed Him Under Contract

    One frequent use of contracts is to establish how much someone will be paid for specified work. Clear contractual language can help prevent disputes down the road. What happens if you do not receive all the compensation to which you are entitled under your contract?

    Clifton Franklin and Fountain Group Adjusters signed a contract where Franklin would provide Fountain with insurance adjusting services related to claims from Superstorm Sandy. The contract outlined how Franklin would be compensated by Fountain. Franklin claimed Fountain wanted him to sign a second contract because it could not find the first contract. While the second contract set Franklin’s compensation at 75% rather than the 65% in the initial contract, Franklin only asserted claims for the original 65% commission. 

    Claims One employed Franklin during this time. Fountain also signed a contract with Claims One. Although Franklin received some compensation from Fountain, he filed a lawsuit against Fountain, claiming he had not been fully compensation. 

    Franklin filed a summary judgment motion, arguing the contract between him and Fountain clearly established the compensation he was owed, and Fountain had not paid him the full amount. In its opposition, Fountain argued it was not liable to Franklin in light of its separate contract with Claims One. Fountain claimed it had paid Claims One the full amount due to Franklin, except for a 10% holdback until all audits had been completed, as was standard in the industry. 

    Fountain claimed Claims One was supposed to pay Franklin the full amount. The trial court denied Franklin’s summary judgment motion because it found there were genuine issues of material fact. Franklin then filed an appeal.

    The appellate court explained the proper resolution of Franklin’s summary judgment motion depended on the interpretation of the parties’ contracts. When a contract’s words are clear, a court cannot make an additional search to determine the parties’ intent. See La. C.C. art. 2046. 

    Franklin claimed the contract was clear and unambiguous about the amount of money Fountain owed him. Fountain claimed the method of payment was understood to be routed through Franklin’s employer, Claims One, as was standard in the industry. 

    To support his claim, Franklin submitted Requests for Admissions that Fountain had not answered, along with the applicable signed contracts. Because Fountain had not responded to the Requests for Admission, the trial court should have deemed them admitted. See St. Julien v. Landry. The contract Franklin submitted with his summary judgment motion, along with the requests for admissions, established the amount Fountain owed Franklin for his work. 

    Nothing in the contract or other evidence supported Fountain’s claim of how Franklin was supposed to be compensated. Therefore, the appellate court reversed the trial court’s denial of Franklin’s summary judgment motion and ruled in favor of Franklin for the issue of whether Fountain owed him unpaid commissions. However, the case was sent back to the trial court to determine the specific amount Fountain owed Franklin, because there was insufficient evidence to establish the sum owed to Franklin.

    A knowledgeable attorney can review a contract before you sign it to ensure it is clear and unambiguous, which can help prevent disputes down the road like the one Franklin found himself in with Fountain.

    Additional Sources: Clifton Franklin v. Fountain Group Adjusters LLC

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Commissions: Seeking Unpaid Wages in Louisiana: Clarifying Petition Requirements for Employees

  • Injured Worker Who Hid Injuries Still Entitled To Workers’ Compensation

    If you are injured on the job, it is best practice to inform your employer and supervisor about your injuries. They will likely inform you about possible workers’ compensation to which you might be entitled. Are you still eligible to receive workers’ compensation benefits if you tried to hide your injury from your employer?

    Gary Jeansonne worked as a maintenance worker at a youth center located in Bunkie, Louisiana. Over two months after Jeansonne stopped working at the center, he filed a claim for workers’ compensation, claiming he had hurt his back while working at the center. He claimed the accident had occurred while he was working in the kitchen. Jeansonne claimed to have called his supervisor the next morning to tell him he would not be able to come in to work due to his back, but he did not tell his supervisor his back issues were from an injury at work. 

    Jeansonne started receiving medical treatment for his back injuries. His medical records indicate he told his doctor the accident that hurt his back occurred at home. Jeansonne subsequently claimed the report was not accurate and he had just said the incident occurred at home because he wanted to be able to go back to work. 

    Ultimately, Jeansonne had to undergo back surgery. He used his personal medical insurance to pay for his medical expenses and took personal leave to recover. He and his wife testified the did not think he would be able to receive the back surgery if he filed a workers’ compensation claim. They thought it would be quicker to use their private insurance. 

    Jeansonne eventually received permission from his doctor to return to work. However, he subsequently claimed to have reinjured himself at work. The workers’ compensation judge found Jeansonne was entitled to workers’ compensation for his first incident at work, but noted Jeansonne was not a very credible witness. Jeansonne filed an appeal.

    An employee is entitled to receive workers’ compensation if he proves he was injured during the course of his employment. See La. R.S. 23:1031(A). The appellate court noted this case presented unusual circumstances because Jeansonne tried to conceal the fact he had been hurt at work from his supervisors, insurer, and healthcare provider.  Although Jeansonne had exhibited poor judgment in trying to hide his injuries, the appellate court found Jeansonne had provided sufficient evidence that the second injury had resulted from an on-the-job accident. 

    Additionally, testimony indicated Jeansonne wanted to return to work and had a genuine belief he could lose his job if it was known he had suffered an on-the-job injury. Based on the evidence presented, the appellate court found the Workers’ Compensation Judge had erred in finding there was insufficient proof Jeansonne had suffered a second compensable injury. The appellate court ruled Jeansonne was entitled to workers’ compensation benefits for both incidents. 

    Although Jeansonne ultimately was able to receive workers’ compensation benefits, the process was greatly complicated by the fact he was not transparent with his employer about his on-the-job injuries. If you have been injured on the job, being straightforward about your injuries can help expedite your receipt of workers’ compensation benefits. 

    Additional Sources: Gary Jeansonne v. Department of Public Safety and Corrections Youth Services et al.

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Workers’ Compensation Claims: How To Determine If Someone Is Faking Symptoms In A Workers Compensation Case

  • Prior Mistake Does Not Waive Insurer’s Defense In Subsequent Claim

    If you are in a car accident and your insurance pays your claim, you likely expect the same thing will happen if you are subsequently in a similar accident. What happens if your insurer paid your prior claim, but tries to deny a subsequent claim? 

    Brandon Forvendel was injured in a car accident. When the accident occurred, he was driving a car he owned and was insured by State Farm. Forvendel had uninsured motorist coverage. After the accident, Forvendel recovered under his uninsured motorist policy. 

    When the accident occurred, he was living with his mother, who also had insurance through State Farm. Forvendel also tried to recover under his mother’s uninsured motorist policy, which had higher policy limits. State Farm denied his attempt to recover under both his and his mother’s policies under the anti-stacking provisions in La. R.S. 22:1295(1)(c). Forvendel then filed a lawsuit against State Farm. 

    He claimed this situation was similar to what occurred when he was involved in another accident years earlier and State Farm had allowed him to recover under both his and his mother’s uninsured motorist policies. State Farm representatives testified they had not considered the anti-stacking statute at the time of the prior accident. 

    The district court found in favor of Forvendel, noting State Farm had previously interpreted the policy to cover Forvendel under his mother’s policy, based on State Farm paying Forvendel when the prior accident occurred. State Farm appealed. The appellate court held the trial court did not err in holding State Farm had waived any defenses to the current claim by having paid Forvendel when the prior accident occurred. 

    The Louisiana Supreme Court noted Forvendel did not dispute that the anti-stacking provision applied here. However, he argued State Farm waived its right to this defense by paying out his prior claim. In Steptore v. Masco Constr. Co., the Louisiana Supreme Court held an insurer waives its right to coverage defenses if they assume and continue to defend the insured even when there are facts they had the right to deny coverage. 

    However, the court distinguished Steptore from the situation here. In Steptore, the waiver was based on the insurer’s actions with respect to a specific incident. In this case, Forvendel tried to rely on State Farm’s actions from a claim years earlier. Therefore, the Louisiana Supreme Court held the insurer had not waived its defenses to Forvendel’s current claim by paying out the claim associated with his accident years earlier and reversed the appellate court’s holding State Farm had waived its defenses by having paid the prior claim. Otherwise, the court noted State Farm would never be allowed to use the anti-stacking statue as a defense against subsequent claims.

    This case illustrates how just because your insurance policy paid out one claim, does not mean your insurer will have have to pay a subsequent similar claim. A good attorney can advise you on what your insurance policy does and does not qualify and what to do if your insurer denies your claim.

    Additional Sources: Brandon Forvendel v. State Farm Mutual Automobile Ins.

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Insurance Coverage: Understanding Recovery in Excess of Insurance Coverage in Car Accident Cases in Louisiana

  • Who Is Covered By A Settlement Agreement Release?

    A settlement agreement can be an efficient way of resolving a claim and receiving compensation without a lengthy trial process. However, it is essential to understand what a settlement agreement does and does not cover to avoid surprises down the road if you later try to bring related lawsuits against other parties. 

    Kerry Maggio was injured in a car accident when he was hit by a vehicle driven by James Parker, who worked for Sandwich Kings. Brenda Parker owned the vehicle, which was insured by the Louisiana Farm Bureau. Maggio filed a lawsuit against James Parker, Sandwich Kings, and their insurers. 

    Maggio signed a settlement agreement and release of all claims with Brenda Parker and the Louisiana Farm Bureau. Neither James Parker nor Sandwich Kings was specifically mentioned in the release. Sandwich Kings and its insurer filed a summary judgment motion, arguing Maggio’s release applied to them because it released “all other persons” who were or might be liable for his injuries from the accident. 

    Maggio claimed Sandwich Kings was not covered by the release. The district court denied defendants’ summary judgment motion. The appellate court agreed with the district court’s judgment, explaining there was no clear intention for the release to benefit Sandwich Kings as a third-party beneficiary. 

    The Louisiana Supreme Court explained because the release’s language was clear and unambiguous, it could not consider evidence outside the corners of the release. See La. C.C. art. 2046. Settlement agreements and releases are governed by general principles of contract interpretation. See La. C.C. art. 3071. However, there is an exception that allows parties to introduce extrinsic evidence to the court to determine the scope of a settlement agreement, such as in the dispute here. The release explicitly stated it released “all other persons.” However, the release did not specifically name or reference Sandwich Kings or James Parker. 

    Maggio negotiated the release with Brenda Parker and Farm Bureau, neither of whom were defendants in the litigation. Further, the defendants were not involved in negotiating the release and were not specifically named. Additionally, there was nothing in the release about dismissing the ongoing lawsuit against Sandwich Kings and James Parker.

    The defendants were also unable to demonstrate that they received any third-party benefit through the release. Therefore, Maggio sufficiently showed evidence about the scope of what the parties intended to cover in their settlement agreement. Further, summary judgment is not the appropriate stage to make determination about subjective intent. Therefore, the Louisiana Supreme Court affirmed the trial and appellate court’s denial of defendants’ summary judgment motion because the release did not show a clear intent to benefit the defendants as third-party beneficiaries.

    Much of the conflict in this lawsuit about what the release covered could have been avoided if the release had been more precisely drafted. If you are considering signing a settlement agreement, it is important to consult with an attorney, so you understand what is covered by the agreement and you are not releasing more than you intend to. 

    Additional Sources: Kerry Maggio v. James Parker et al.

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Settlement Agreements: Can a Settlement Agreement Preclude Future Lawsuits? Not Always: A Case Study

  • Hospital Not Liable For Negligent Transportation During Hurricane Katrina

    Over a decade after Hurricane Katrina, we have almost all heard of the difficult choices hospitals faced while trying to care for patients. This case involves a patient who was allegedly injured while being evacuated from a New Orleans hospital during Hurricane Katrina. 

    Lionel Favret was admitted to the hospital in New Orleans, Louisiana where he was diagnosed with a bone disease and back pain. He was treated with antibiotics and underwent back surgery. He faced a difficult recover and while in the ICU, Favret had to be resuscitated on two different occasions. 

    He was moved out of the ICU into a unit for surgery patients when Hurricane Katrina hit. Hospital employees carried Favret down several stories of stairs into the parking garage where he was eventually evacuated after over a day. When he arrived at the new hospital, he was diagnosed with fractures in his back and an infection. He underwent another back surgery. 

    Favret filed a petition for a Medical Review Panel. Favret alleged the original hospital had failed to provide him with antibiotic treatment, had jostled him while moving him to the evacuation site and did not have sufficient personnel to put him on a helicopter, and forced him to remain upright during the ten-hour ride to the other hospital. The panel found Favret did not have sufficient evidence the hospital did not meet the applicable standard of care or that it had discontinued his antibiotics. 

    Favret then filed a lawsuit in the district court under the Louisiana Medical Malpractice Act, La. R.S. 40:1299.41(A)(8), alleging his severe injuries had resulted from the hospital’s malpractice. He also brought negligent transportation and premises liability claims. 

    The hospital filed a summary judgment motion for dismissal of Favret’s medical malpractice claims, which the court granted because Favret had not provided expert testimony to establish it had breached the applicable standard of care. The court also later dismissed his negligent transportation and premises liability claims. Favret filed an appeal, arguing the trial court erred in dismissing his claims. 

    With respect to the negligent transportation claims, the appellate court looked at the statutory language of the Louisiana Medical Malpractice Act. The act explicitly states medical malpractice includes actions related to the loading or unloading of a patient. Therefore, Favret’s negligent transportation claims were medical malpractice claims. Favret had not provided sufficient evidence or testimony from medical experts to establish his claim. Therefore, the appellate court held the district court had not erred in dismissing Favret’s negligent transportation claims. 

    For Favret’s premises liability claims, the appellate court reviewed the evidence presented to the trial court about the condition of the hospital’s premises. Although Favret providing witnesses, he did not provide sufficient evidence to establish causation between the hospital’s negligence and his supposed damages. Therefore, the appellate court held the trial court did not err in dismissing Favret’s premises liability claims. 

    If you have been injured while hospitalized, a good attorney can advise you on possible medical malpractice claims, even if there were extenuating circumstances like here.

    Additional Sources: Lionel Favret, Jr. and Lynda Hannie Favret v. Touro Infirmary

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Medical Malpractice: Orleans Parish Hospital Negligence Trial Concerns Medical Malpractice, Negligence, & Damage Caps

  • Injured Work Release Inmate’s Sole Remedy Is Workers’ Compensation

    Even while an inmate, you are still entitled to damages if you are injured on the job. If you are injured while working in a release program, are you entitled to compensation through the workers’ compensation scheme? 

    Lindsey French was serving a sentence for drug and firearm charges at the detention center in Claiborne Parish, Louisiana. Inmates at the detention center could be released to work for the police as part of the highway maintenance crew. French volunteered to join the crew. While on the crew, French was responsible for operating a tractor.

    One day, the tractor French was using hit a tree stump. French was not wearing his seat belt. He fell through an opening in the tractor and fractured his pelvis.

    French filed a lawsuit against the police. He claimed the police were liable for not training inmates how to operate the tractors, not adequately supervising the inmates, not adequately inspecting the area where they were working, telling inmates it was more dangerous to wear a seatbelt, and not maintaining the tractor.

    The police filed a summary judgment motion claiming it was immune under La. R.S. 15:708, which governs prisoner workday release programs. The police alternatively argued French’s only remedy against them was workers’ compensation. French claimed he was not employed by the police and was more like a volunteer. The trial court granted the police’s summary judgment motion, explaining French’s sole remedy was workers’ compensation. French filed an appeal. 

    When courts determine if an employee-employer relationship exists, the main factors are the right of control and supervision. Prior cases have held work release inmates to be employees of the place where they work. See Reynolds v. Louisiana Plastic. 

    Here, the police could dismiss inmates such as French from working on the crew if they were unable to perform their job duties. For example, the police would sometimes dismiss workers who were found to not be able to operate the tractors. The police also had control over the inmates from the time they picked them up until the time they returned them to the detention center. They also supervised the inmates while they were working. The police provided the inmates with training on how to operate the tractors and provided the work location and equipment the inmates used. Therefore, the police controlled the inmate’s training and supervision and could dismiss inmates from working on the crew.

    The appellate court rejected French’s arguments he was a volunteer for the police because he was not expecting compensation. Here, French was being monetarily compensation for his service, even if the payment did not come directly from the police. Further, even if he had not been compensated for his services, that alone would not be determinative of whether he was an employee.

    Based on the evidence presented, there did not appear to be a disputed factual issue of whether French was employed by the police. Therefore, the appellate court held the trial court did not err in granting the police’s summary judgment motion because French’s sole remedy for his injuries was through the workers’ compensation system. 

    It can sometimes be complicated to determine if you are in an employee-employer relationship, such that you are entitled to workers’ compensation. A good attorney can advise you on relevant factors and how that affects your potential legal remedies. 

    Additional Sources: Lindsey French v Claiborne Parish Police Jury and Sheriff

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Inmate Release Programs: Inmate Injured on Work Release in Chopin Denied Damages from Sheriff and Department of Corrections

  • Presumption of Negligence in Rear-End Accidents Does Not Always Lead To Summary Judgment Victory

    Under Louisiana law, there is a presumption the driver of a car that rear-ends another car acted negligently. However, this presumption of negligence can be overcome in certain situations, such as if the driver of the vehicle that was rear-end shifted lanes soon before the accident.

    While Tammy Bloxham was stopped at a red light in her car, she was hit from behind by Andy Gibbs Jr. At the time of the accident, Gibbs was driving a tractor-trailer owned by 31 Energy. Bloxham filed a lawsuit against Gibs, 31 Energy, and 31 Energy’s insurer. Bloxham argued 31 Energy had been negligent in hiring Gibbs and not inspecting its vehicle’s brakes. The defendants filed a summary judgment motion, claiming Bloxham had not reported this claim in her pending bankruptcy. Bloxham also filed a summary judgment motion, claiming Gibbs was liable under La. R.S. 32:81 A and the presumed negligence of the driver of a following vehicle who hits the rear of another vehicle.

    The trial court granted Bloxham’s summary judgment motion given the presumption that a following driver who rear ends another vehicle is negligent. The court held this applied even if Bloxham had changed lanes immediately before the accident. The defendants filed an appeal.

    At the summary judgment stage, a court cannot make credibility determinations or decide between differing accounts of what transpired. Even if the rear-end presumption of negligence applies, a court must still determine if the driver in front contributed to the accident. See Matherne v. Lorraine.

    On appeal, the defendants argued the courts should have assessed comparative fault, even if there was a presumption of negligence because Gibbs had rear-ended Bloxham. Specifically, defendants argued Bloxham could have been partially at fault for having changed lanes just before the accident occurred. Defendants argued drivers who change lanes on a highway have a duty to determine whether they can do so without endangering oncoming traffic, so if Bloxham had changed lanes immediately before the accident, she could be partially at fault.

    The court agreed summary judgment is not appropriate in all cases involving a rear-end accident. Here, the deposition testimony from various witnesses presented conflicting accounts of what had transpired. For examples, Gibbs’ deposition indicated it had looked to him like Bloxham had tried to change lanes immediately prior to the incident. Bloxham argued Gibbs had admitted he was solely at fault for the accident as he testified he was not blaming anyone else for the accident. This led to a a factual issue about Bloxham’s conduct immediately before the accident and whether it made her partially at fault for the accident. Given the outstanding factual issues, the appellate court reversed the trial court’s grant of Bloxham’s summary judgment motion. 

    If you have been involved in a rear-end accident, a knowledgeable attorney can advise you on what evidence you should present given Louisiana’s presumption of negligence for the driver who rear-ended the other vehicle. As seen here, the mere fact one driver rear-ended another vehicle does not necessarily mean that driver is completely at-fault for the accident. 

    Additional Sources: Tammy Bloxham and Christophe Odgen v. HDI-Gerling America Ins. Co., et al.

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Rear-End Accidents: If Your Car is Rear Ended in An Accident Who is Presumed to be at Fault in Louisiana?

  • Can an Independent Contractor collect Workers’ Compensation Benefits?

    The distinction between independent contractors and employees has always been something of a balancing test. This distinction becomes vital in workers’ compensation issues, where employees generally enjoy peace of mind with workers’ compensation in the event of an injury, whereas independent contractors usually do not. But are there some cases where an independent contractor can collect workers’ compensation benefits? The answer to this question is illustrated in the following appeal from the New Orleans Office of Workers’ Compensation.

    Federico Espinoza Martinez and four others were hired by Jaroslov Rames to lower a washer/dryer combination unit to the first floor of an apartment building. During the lowering of the unit, Mr. Martinez received a laceration on his hand when one of the ropes used snapped. Despite a broken rope and cut hand, Mr. Martinez and the others completed the job. Afterward, Mr. Rames drove Mr. Martinez to the emergency room, paying five hundred dollars to ensure proper treatment was administered. Mr. Martinez later attempted to collect his pay from Mr. Rames. Mr. Rames informed him that he had deducted the five-hundred-dollar emergency room fee from Mr. Martinez’s check and planned to deduct the remainder of the hospital fee from his future earnings.

    Mr. Martinez filed a claim for workers’ compensation benefits he believed Mr. Rames owed him. The issue was heard by the Office of Workers’ Compensation (henceforth “OWC”), and it was found that Mr. Martinez was not an employe of Mr. Rames, but rather an independent contractor. Benefits were denied based on this finding. Mr. Martinez appealed, maintaining that the OWC failed to apply the manual labor exception outlined in La. R.S. 23:1021(7). The OWC found the manual labor exception did not apply to the set of facts, denying benefits again for Mr. Martinez.

    La. R.S. 23:1021(7) states, “An independent contractor is covered by the provisions of workers’ compensation when a substantial part of their work time is spent performing manual labor.” In Lushute v. Diesi, the Louisiana Supreme Court held that “an independent contractor must show that a substantial part of their work was spent doing manual labor to carry out the terms of their contract and that the work was vital to the trade, business, or occupation of the principal to the contract.”In determining what constitutes manual labor, the courts have consistently held it to be work where the work’s physicality outweighs the work’s mental element. “Whether an activity is part of the principal’s trade, business, or occupation must be determined on the facts of each unique case.”

    Mr. Martinez’s work for Mr. Rames consisted of carpentry and maintenance. A reasonable person would find these types of labor to be more physical than mental. The court then turned to whether the work being performed at the time was part of Mr. Rames’ trade, business, or occupation. Mr. Rames owned and managed several apartments which he had available to rent through the popular lodging website Air BNB. Mr. Martinez had worked for Mr. Rames at his apartments several times. On the day of the incident, Mr. Martinez was moving a washer/dryer unit at one of Mr. Rames’ apartments with the purpose of making room to open up a wall to increase space for a bigger unit.

    The court reasoned that accommodation of renters’ needs via maintenance and improvements is a necessary task in owning and operating a rental business. From these findings, the court held that the OWC should have applied the manual labor exception to Mr. Martinez.

    When an employee or independent contractor sustains an injury while on the job, determining eligibility for compensation can be very confusing, factors like circumstances surrounding the incident, laws of the specific jurisdiction, nature of the employee’s work, and the type of business the employer runs can all play a part. Those navigating this complex process should seek the guidance and expertise of an experienced attorney.

    Additional Sources orkers’O ESPINOZA MARTINEZ v. JAROSLAV RAMES / WORLD OF TASTE, LLC

    Article WriWorkers’ T.J. Reinhardt

    Additional Berniard Law Firm Article on Workers’ CompensationWorkers’ An Employee Entitled To Select A Physician For A Workers’ Compensation Claim?

  • Smoking Or Radioactive Material? Summary Judgment Reversed Given Factual Disputes On Causation

    Everyone knows someone who has been affected by cancer. Despite being a widespread disease, there is a lot we still do not know about cancer. One area where a lot is still unknown is causation. For example, lung cancer can be caused by a variety of things, including smoking and exposure to radioactive materials. These multiple potential causes can present challenging issues in lawsuits where an individual developed cancer. An medical expert is one possible way to address potential causation issues. 

    Riley Hickman filed lawsuits against multiple oil and gas companies, claiming he had developed lung cancer from exposure to naturally occurring radioactive material while working to clean oilfield pipes. He claimed naturally occurring radioactive material deposits inside oil pipes and have to be cleaned out, which releases radioactive dust. One of the companies Hickman sued, Shell Oil, filed a summary judgment motion. Shell claimed Hickman could not establish his exposure to naturally occurring radioactive material had caused his lung cancer, in part because Hickman had smoked his entire life. Shell argued Hickman had gotten lung cancer from smoking, not from exposure to naturally occurring radioactive material. 

    The trial court granted Shell’s summary judgment motion and dismissed Hickman’s claims against Shell. Shell also claimed to have filed a motion to exclude testimony from Hickman’s expert witness, but there was no record of the motion and the court never ruled on it. 

    To prevail on a summary judgment motion, the party moving for summary judgment need only point to an absence of factual support for an element of their claim, such as causation. See La. C.C.P. art. 966. When granting Shell’s summary judgment motion, the trial court agreed with Shell’s argument Hickman had not provided expert medical testimony to link his lung cancer to his purported exposure to radioactive material. However, in reviewing the record, the appellate court found Shell was unclear about whether it was challenging the qualifications of Hickmna’s expert. 

    Any challenges to an expert’s qualifications or methodology are required to be filed in a pre-trial motion, under La. C.C.P. art. 1425(F). The expert had testified in her opinion, Hickman’s exposure to radioactive material increased his risk of developing lung cancer. Thus, the expert’s qualifications and methodology were essential to determining if the expert could provide an opinion on whether Hickman’s exposure to radioactive materials could have caused or contributed to his lung cancer.  However, Shell had not previously raised an objection to exclude the expert testimony. Further, at the summary judgment stage, the trial court was required to accept the expert testimony as competent evidence and could not analyze the reliability of the evidence. Therefore, the appellate court found there were genuine issues of material fact and reversed the trial court’s grant of the defendants’ summary judgment motion. 

    Lawsuits, especially those involving medical issues, often involve complicated issues related to causation. A good lawyer can advise you on what evidence you can provide to support this essential element, including possible testimony from a medical expert and advice you on procedural requirements to use any such testimony. 

    Additional Sources: Riley Hickman v. Exxon Mobile Corp. et al.

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Causation: Adequate Medical Evidence Required To Establish Causation Of Alleged Injuries

  • Is It Possible To Modify a Workers’ Compensation Judge’s Judgment?

    If you have been injured on the job, you might be entitled to workers’ compensation. In order to receive compensation, there are a number of procedural requirements with which you must comply. 

    Elaine Rodrigue worked as a paralegal for the school board in Lafourche Parish, Louisiana. While working, she tripped over a rug and had to have surgery. When she returned to work from her surgery, she was transferred to work at a metal building. While working there, Rodrigue was exposed to noxious odors and forms. After she left her job, her symptoms from the exposure continued to get worse. 

    Rodrigue filed a workers’ compensation claim against the school board. The Workers’ Compensation Judge ruled in favor of Rodrigue, finding her exposure to the noxious odors and fumes at work had caused her medical issues, so she could recover for her related medical expenses. The judgment included twenty items from Rodrigue’s doctor’s prescriptions that were a reasonable and necessary part of her treatment. 

    The school board filed a motion to modify the judgment, arguing it did not require Rodrigue to comply with procedural requirements for getting medical expenses approved. The court denied the school board’s request to modify the judgment but did require Rodrigue to submit bills directly to the school board from her medical providers. 

    On appeal, the school board argued the Workers’ Compensation Judge erred in holding the treatment Rodrigue’s doctor had prescribed was not subject to the review process in La. R.S. 23:1203.1 or the Medical Treatment Guidelines, which were established to help control high medical expenses. The school board argued any of Rodrigue’s future expenses should have been submitted for pre-authorization. Rodrigue argued the school board’s obligation to her was not based on the Louisiana workers’ compensation statutes, but rather the final judgment issued by the Workers’ Compensation Judge. 

    The appellate court agreed that the school board’s obligation to pay for the items from Rodrigue’s doctor’s prescriptions was from the trial court’s judgment, not from the workers’ compensation statutes. Additionally, Rodrigue had not made a new claim that fell outside the prior judgment’s scope. 

    The appellate court also addressed Rodrigue’s argument that the judgment incorrectly required her to submit bills from her medical providers directly to the school board. The school board argued if Rodrigue could keep paying expenses not generated by a healthcare provider and submit those bills directly to the school board for reimbursement, it would conflict with the Reimbursement Schedule in La. R.S. 23: 1034.2, which is intended to help control high medical costs. The court found the language in the judgment to be unclear, so it modified the language to clarify that the school board could adjust the cost of applicable medically reasonable and necessary items under the Reimbursement Schedule.

    As seen here, judgments in workers’ compensation claims can sometimes have unclear portions. A good lawyer can help you navigate the often complex workers’ compensation system so you receive the damages you are entitled to if you have been injured on the job. 

    Additional Sources: Lafourche Parish School Board v. Elaine Rodrigue

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Workers’ Compensation Claims: Workers’ Compensation Claim Denied For Failure To Seek Preapproval