Newsletter For August & September 2016

Rabalais Unland, LLP

Our thoughts and prayers continue to go out to all those people effected by the unprecedented flooding in Louisiana. There are numerous ways to donate money, clothes, supplies, or your time, and we encourage everyone to help when able.

I appreciate all the positive feedback, questions, and comments about the contents our newsletter in July 2016. The Medical Treatment Guidelines and its application by employers, insurers, and the court system will continue to be a hot button issue in the near future. Please do not hesitate to contact us with any questions you have.

Also noted in the last newsletter, we are extending our ‘Lunch and Learn” seminar into the Fall. We offer seminars/classes on Louisiana Workers’ Compensation Act, the Longshore and Harbor Workers’ Compensation Act, and Jones Act/maritime areas of law. These seminars/classes can be modified to discuss one particular area of employment or a general overview of multiple employment-related matters. Please contact me if interested.

As always, please continue to provide us with feedback and comments on our monthly newsletter. If there are any ways we can make it better, please let us know.

Many Thanks, Matthew D. Crumhorn, Esq.

Firm News

Happy Birthday To:

Joshua Couvillion
Chad Evans
Danielle Gleason
John Mineo
Jennifer Rodrigue
Mary Beth Pickett

We welcome a new associate attorney, John Mineo, and new paralegal, Bridget Maechling, to the firm. WELCOME!

Louisiana Workers’ Comp News

The Louisiana Workers’ Compensation Advisory Council’s next meeting is scheduled for September 26, 2016 at 9:30 a.m.

Effective September 1, 2016, the maximum compensation rate has been increased to $657.00. The minimum compensation rate is now $175.00.

According to the Hospital Outpatient Payment Index: Interstate Variations and Policy Analysis 5th Edition, Louisiana is in the top two states with the highest workers’ compensation outpatient payments, when compared to Medicare rates.

Due to the recent flooding in Louisiana, please confirm that all workers’ compensation payments are being made to the correct address.

Recent Louisiana Workers’ Compensation Cases

City of Bastrop v. Harris, 50,727-WCA (La. Ct. App. 2 Cir. 6/22/16)

A claimant filed a workers’ compensation claim alleging that he was underpaid indemnity/disability benefits, after he was injured in June 2001 in the course and scope of his employment as a fireman. After the claimant received the statutory maximum of 520 weeks of indemnity benefits, those benefits were terminated in 2012. The claimant filed a LWC-WC-1008/Disputed Claim for Compensation alleging that his compensation rate was incorrect and he was being underpaid. The City of Bastrop filed a Reconventional Demand arguing that it paid benefits in excess of 520 weeks and was entitled to recover the overpayment.

The workers’ compensation judge (WCJ) denied the claimant’s allegations that he was underpaid and, instead, found that the adjuster incorrectly calculated the claimant’s Supplemental Earnings Benefits (SEB) and overpaid benefits. In January 2015, the Second Circuit Court of Appeal affirmed the WCJ ruling.

The City of Bastrop then filed a separate lawsuit seeking recovery of the $4,348.00 overpayment. In response, the claimant filed peremptory exceptions of res judicata and prescription, arguing that the City of Bastrop was obligated to bring his claim for reimbursement in the prior proceedings and, since it failed to do so, the City of Bastrop was now precluded from pursuing reimbursement in a separate action. After a hearing on the exceptions, the WCJ granted the claimant’s peremptory exception of res judicata and dismissed the City of Bastrop’s suit.

The Second Circuit Court of Appeals affirmed the WCJ decision, by agreeing that the City of Bastrop should have brought its claim for reimbursement in the first lawsuit, and is now prohibited from seeking same in the second lawsuit.

Harold Jackson v. Royal T Energy, LLC, No. 50,645-WCW (La. Ct. App. 2 Cir. 6/22/16)

The claimant was injured in Texas while working for a company with no operations in Louisiana. As a Louisiana resident, he filed a LWC-WC-1008/Disputed Claim for Compensation seeking benefits under the Louisiana Workers’ Compensation Act. He claimed that he was hired over the phone while he was in Louisiana.

La.R.S. 23:1035.1 governs extraterritorial coverage disputes. In determining whether a “contract for hire” is a Louisiana contract in a workers’ compensation case, the parties intent should be paramount. Some factors to consider in determining the intent of the parties include domicile of the parties, the nature of the work to be done, and the place where the employment was initiated. Determining whether a “contract for hire” is made in Louisiana is a factual one.

In applying the factual contact test, the courts found that Royal T Energy has no office of facility in Louisiana; it did not conduct any business in Louisiana; the claimant was hire to perform work in Texas; Royal T Energy did not pay travel or moving expenses; the driving test and paperwork was completed in Texas. The connections to Louisiana included the initial telephone call and the performance of a drug test. The Appellate Court also considered the fact that the representative of Royal T Energy who initially contacted the claimant did not have the authority to hire prior to the claimant’s completion of a mandated testing and paperwork.

The Appellate Court held that a Louisiana resident’s efforts to obtain employment with a Texas company should be promoted and not hampered by the imposition of Louisiana law on the Texas company, which has little or no contact with Louisiana. The Appellate Court reversed the WCJ decision and ruled that Louisiana is not the appropriate jurisdiction.

Ebarb v. Boise Cascade Company, 16-94 (La. Ct. App. 3 Cir. 7/13/16)

The employer appeals a judgment denying its La. R.S. 23:1208 fraud defense and award of indemnity benefits, medical treatment, penalties, and attorney fees to the claimant. The employer asserted its fraud defense due to alleged statements made to her medical providers denying prior neck symptoms, which the employer alleged were false and wilfully done to obtain workers’ compensation benefits. The WCJ did not agree with the fraud defense and awarded indemnity benefits, medical treatment, $8,000 in penalties, $15,000 in attorney fees, and court costs.

Pursuant to La.R.S. 23:1208, it is unlawful for any person, for the purpose of obtaining or defeating any benefits or payment, to willfully make a false statement or representation. If proven, a finding of fraud results in the forfeiture of workers’ compensation benefits, and can result in the imposition of criminal penalties, civil penalties, and restitution of all paid benefits. In order to prevail on a fraud defense, the party alleging fraud must prove three elements: (1) that a false statement or representation, (2) was willfully made, and (3) was made for the purpose of obtaining or defeating any benefits or payment. The employer need not prove that it suffered prejudice as a result of the false statement or misrepresentation.

The Appellate Court found that the WCJ was not manifestly erroneous in ruling that the claimant’s statement denying that she suffered from pre-existing lower back and neck problems, were false. The issue then became whether her false statements were willfully made for the purpose of obtaining workers’ compensation benefits or payments. The Appellate Court affirmed the WCJ decision that the claimant’s false statements were inadvertent or inconsequential to her claim for benefits.

Interestingly, the award of penalties and attorney fees to the claimant was also affirmed by the Appellate Court, however, Judge Gremillion, issued a dissenting opinion. In the dissent, Judge Gremillion opined that the employer had sufficient evidence to controvert the claim and should not have been assessed penalties and attorney fees. Judge Gremillion stated, “If the evidence presented by the defendant does not reasonably controvert such a claim, then I truly do not know what evidence could.”

Gaines v. Pinecrest Supports & Services Center, et. al., 16-105 (La. Ct. App. 3 Cir. 7/6/16)

The employer appeals a judgment denying its fraud defense based on La.R.S. 23:1208 and awarding the claimant indemnity benefits, medical benefits, penalties, and attorney fees. The employer filed a 1208 fraud defense on the basis that the claimant asked a co-worker to lie about the particulars of a second alleged accident.

On Appeal, the employer did not dispute the first accident that occurred two weeks earlier, and argued that the WCJ erred by failing to deny the claimant benefits because she violated the 1208 fraud provisions when she claimed she suffered a second accident and asked a co-worker to bear false witness to the particulars of same. The employer’s entire fraud defense rests on a conversation between the claimant and her co-worker.

The Appellate Court affirmed that WCJ ruling based on the fact that the WCJ found the claimant to be credible at Trial. The WCJ was also able to discount that contrary testimony of the employer’s witnesses completely. In review of the evidence, the Appellate Court opined that the WCJ was presented with conflicting testimony, which made the claimant’s credibility at Trial all the more important. Credibility decisions cannot be overturned by the Appellate Court, and the WCJ is affirmed.

Welcome to the Summer edition of the newsletter.

Rabalais Unland, LLP serves a wide range of clients in multiple areas of law, including state and federal workers’ compensation, employment and labor , maritime and Jones Act, and personal injury. Please take the time to review the newsletter to better explore the Louisiana legal landscape on all matters.

A reminder that the newsletter will be distributed on a quarterly basis: Spring, Summer, Fall, and Winter. If there are legal issues, cases, or other matters that require immediate discussion, then I will post it on the law firm’s website and Facebook page.

Please continue to provide us with feedback and comments on our quarterly newsletter. If there are any ways we can make it better, please let us know.

Many Thanks,
Matthew D. Crumhorn, Esq.

Click here to read the Summer 2017 Newsletter

For those that are attending, several attorneys from our firm will be attending the LASIE annual conference on November 2-4, 2016, in Lake Charles, Louisiana. If you are attending, please do not hesitate to say hello.

Rabalais Unland continues to offer our ‘Lunch and Learn” seminar into the Fall. These seminars / classes can be modified to discuss one particular area of employment or a general overview of multiple employment-related matters. Please contact me if interested.

As always, please continue to provide us with feedback and comments on our monthly newsletter. If there are any ways we can make it better, please let us know.

Many Thanks, Matthew D. Crumhorn, Esq.

FIRM NEWS

We welcome a new receptionist to our firm, Taylor Vining.

Congratulations to three attorneys in our office, who have all had new children. Congrats to:

Jonathan Landry
Joshua Couvillion
Chase Boeneke

Anniversaries:

Gabriel Thompson (8 years)
Jennifer Rodrigue (9 years)
Kristin Lusk (8 years)
Korica Tyler (4 years)

LOUISIANA WORKERS’ COMP NEWS

The Louisiana Workers’ Compensation Advisory Council’s next meeting is scheduled for November 17, 2016 at 9:30 a.m.

Effective September 1, 2016, the maximum compensation rate has been increased to $657.00. The minimum compensation rate is now $175.00.

The inaugural meeting of the Louisiana Commission on Preventing Opioid Abuse was held yesterday at the Department of Health in Baton Rouge. The Commission is the result of HCR 113, a resolution passed in the last regular legislative session.

Catrice Johnson-Reid was recently appointed Division Judge in the New Orleans Workers’ Compensation Court (District 08).
LOUISIANA LEGISLATIVE CHANGES ON WORKERS’ COMPENSATION ADJUSTER LICENSING

As a reminder:

LDI will begin issuing workers’ compensation authority on claims adjuster licenses. The licensing exemption for workers’ compensation will remain in place until August 1, 2017. This will give persons who have been adjusting workers’ compensation claims without being required to hold a license one year to obtain the new license.

Individuals who have three years’ experience adjusting workers’ compensation claims within the past five years may apply for a waiver of the exam. Waiver applications will be accepted until August 1, 2017.

The application for the waiver can be located at:

https://www.ldi.la.gov/docs/default-source/documents/licensing/producers/wc-waiver.pdf?sfvrsn=0

RECENT CHANGES IN THE LONGSHORE AND HARBOR WORKERS’ COMPENSATION ACT

The Department of Labor has announced an increase in Penalties under the Longshore Harbor Workers’ Compensation Act.

Section 14(g) of the LHWCA: Failure to Report Termination of Payments (LS-208).
– The penalty amount has increased from $110 to $275 in accordance with 20 C.F.R. Section 702.236.

Section 30(e) of the LHWCA: Penalty for Late Report of Injury or Death (LS-202).

– The maximum penalty has increased from $11,000 to $22,587 in accordance with 20 C.F. R. Section 702.204.

Graduated penalty schedule as of August 1, 2016:

1st late report: $500
2nd late report: $1,000
3rd late report: $2,000
4th late report: $4,000
5th late report: $8,000
6th late report: $16,000
7th late report and above: $22,587 (statutory maximum)

Section 49 of the LHWCA: Discrimination Against Employees Who Bring Proceedings.

– The penalty amount has increased from a $1,000 minimum and a $5,000 max to a $2,259 minimum and $11,293 maximum in accordance with 20 C.F.R. Section 702.271(a)(2)

RECENT LOUISIANA WORKERS’ COMPENSATION CASES

Southern Framers of Louisiana, LLC v. Doctors Hospital of Slidell, d.b.a. Sterling Surgical Hospital, 15-CA- 1878 (La. App. 1 Cir. 8/31/16)

This claim involves a dispute over payment of medical bills. The claimant injured his left shoulder in the course and scope of his employment with Southern Framers of Louisiana. He underwent left shoulder surgery which was performed in an outpatient setting at Doctors Hospital of Slidell, d.b.a. Sterling Surgical Hospital. The Hospital submitted a bill to the employer’s third party administrator for $33,133.41. The Carrier paid $8,887.80 as a “reasonable reimbursement for services performed by the Hospital.” In response, the Hospital filed for administrative review in accordance with LA. Administrative Code, Title 40, pt. I, § 5149, claiming an underpayment.

Instead of responding to the claim for underpayment, the Employer/Carrier filed a “LWC-WC-1008/Disputed Claim for Compensation” directly with the OWC alleging that the unpaid portion of the Hospital’s bill was unreasonable. The Employer/Carrier also asserted a claim for reimbursement for overpayment of the previously paid bill. In response, the Hospital filed objections of prematurity, nonconformity of the petition, vagueness, ambiguity, no cause of action, and no right of action.

The OWC heard oral argument on the Hospital’s preliminary objections and sustained the prematurity argument. The OWC concluded that the Employer/Carrier failed to follow the administrative remedies outlined in Title 40 of the Louisiana Administrative Code. The Employer/Carrier appealed to the First Circuit Court of Appeal.

The Court of Appeal ruled that the Employer/Carrier’s right to judicial review of medical payments is premature until exhaustion of the administrative procedure. The Appellate Court opined that, while an employer/carrier has no independent entitlement to seek judicial review, the Hospital, as a medical provider, does have the right. In this case, the Hospital involved its right to utilize the required administrative process to determine the adequacy of the employer/carrier’s payment, and it would thwart that process if the employer/carrier could proceed with its own action prior to completion of administrative review. The Appellate Court added that resolution of the claims in the administrative proceedings could potentially resolve all pending issues between the parties, including the employer/carrier’s claims. The lower court’s ruling was affirmed.

LFI Fort Pierce, Inc. v. Acme Steel Buildings, Inc., 16-71 (La. App. 3 Cir. 8/17/16)

This claim involves a tort lawsuit, whereby a staffing agency and its workers’ compensation insurer sued an alleged statutory employer and liability insurer in tort and in contract, seeking reimbursement for workers’ compensation benefits paid, or to be paid, to an injured employee.

The statutory employer, Acme, filed for summary judgment on the basis that as “statutory employer” it is immune from the tort claim asserted against it. Acme also sought to dismiss the staffing company’s contract claims asserting there was no viable basis for the claims and/or that any indemnity language in the contract was inapplicable. The trial court rendered judgment in favor of Acme and dismissed the staffing company’s claims. An appeal was brought by the staffing company.

The Appellate Court first opined that there was no written contract between the parties that specifically lists Acme as a “statutory employer.” The Appellate Court reviewed multiple contracts between these parties and the general contractor who owned and operated the job site where the work took place. After reviewing the contracts, the Appellate Court found that there was an “issue of material fact” as to whether Acme is a statutory employer under La.R.S. 23:1061(A)(2), and that summary judgment was improper.

Editor’s Note: This case involves a complicated issue in Louisiana, whereby the liability for workers’ compensation benefits depends on the type of work performed, contracts to perform the work, and different classifications of employers performing the work. We could spend a lot of time discussing the “statutory employer” provisions in the Louisiana Workers’ Compensation Act.

I encourage everyone to review this case.

Verges v. Amtrust North America Community Leaders Advocacy for Success, 2016-CA-0203 (La. App. 4 Cir. 8/31/16)

This claim involves whether the Office of Workers’ Compensation has subject matter jurisdiction to award assault pay pursuant to La. Rev. Stat. 17:1201(c). The employee was allegedly attacked and injured by a seven year old autistic boy while she was in the course and scope of her employment as a special education teacher. The workers’ compensation insurer denied the employee’s claim for workers’ compensation benefits and the employee then filed a LWC-WC-1008/Disputed Claim for Compensation, seeking workers’ compensation benefits. The Office of Workers’ Compensation Judge ruled at Trial in favor of the employee an awarded workers’ compensation benefits, assault pay, plus $8,000 in penalties and $15,000 in attorney fees. An appeal ensued.

The Appellate Court affirmed the lower court’s judgment as to payment of workers’ compensation benefits, penalties and attorney fees. The Appellate Court, however, found that the lower court erred in awarding assault pay, because it did not have subject matter jurisdiction to do so. The Appellate Court reasoned that, unless a remedy is specifically provided for in the workers’ compensation statutes, then it has no subject matter jurisdiction to make decisions regarding same. La.R.S. 17:1201 falls under Title 17, which governs education. Claims for assault pay must be brought in Judicial District Court.

Sislo v. New Orleans Center for Creative Arts (NOCCA), 16-CA-178 (La. App. 4 Cir. 8/17/16)

In this case, the employee appealed a judgment from the Office of Workers’ Compensation, which granted summary judgment in favor of the employer, and dismissing the employee’s claim for benefits. The employee alleged that he was exposed to airborne construction debris wafting into the employer’s parking lot from sandblasting and waterproofing work being performed at a neighboring building. The employee was hospitalized after the construction began for an exacerbation of a pre-existing lung condition.

The employer filed for summary judgment arguing that (1) all of the exposure occurred in the parking lot before her work duties began or after her work duties ended; and (2) the risk from which her injury resulted was no greater for the employee than it was for a non-employee or other member of the public. In turn, the employee filed her own summary judgment arguing that she was entitled to benefits because the parking ot was owned and operated by the employer and within the building where her office was located. The Workers’ Compensation Judge denied the employee’s motion and granted the employer’s motion. An appeal ensued.

The Appellate Court reversed. It found that NOCCA has not shown, with undisputed facts, that the public was equally susceptible to the risk of dust exposure or that the airborne dust the employee encountered was a risk encountered everywhere independent of location. The Appellate Court added that multiple courts have found course and scope of employment for accidents occurring on the employer’s parking lot, and that, in light of the “no-fault” doctrine workers’ compensation scheme, it is not necessary to consider whether the risk encountered on the employer’s premises be the employer’s “fault” in order for an accident to be compensable. The Appellate Court held that an employee on the employer’s premises must encounter the risk “to a greater extent and frequency than the general public,” citing, Bosse v. Westinghouse Elec., Inc., 637 So.2d 1157 (La. App. 4 Cir. 5/17/94)

Editor’s welcome:

July 2016

Rabalais Unland, LLP continues to wish everyone a happy summer. The school days are quickly approaching!!

Thank you to all who participated in our summer seminar/classes and our ‘Lunch and Learn’ series. Due to the great success we’ve had, we are extending the availability into the Fall. We offer seminars/classes on Louisiana Workers’ Compensation Act, the Longshore and Harbor Workers’ Compensation Act, and Jones Act/maritime areas of law. These seminars/classes can be modified to discuss one particular area of employment or a general overview of multiple employment-related matters. Our job is to serve you, so please contact me if interested.

As a reminder: we have moved into our new office. Our new address is:

1404 Greengate Drive
Suite 110
Covington, Louisiana 70433

As always, please continue to provide us with feedback and comments on our monthly newsletter. If there are any ways we can make it better, please let us know.

Many Thanks, Matthew D. Crumhorn, Esq.

FIRM NEWS

Happy Birthday to: NOBODY!!

Interesting fact, our law firm has 31 employees and July is the only month without any birthdays. (But we still had cake!!)

LOUISIANA WORKERS’ COMP NEWS

The Louisiana Workers’ Compensation Advisory Council’s next meeting is scheduled for August 25, 2016 at 9:30 a.m.

The Louisiana Workforce Commission has amended the filing fees and court costs for the 2016 year. Please refer to the website for information. www.laworks.net

Ms. Linda Smith has been hired as the new Judge at the Office of Workers’ Compensation, District 1W, in Shreveport, Louisiana. Linda Smith was previously a workers’ compensation judge before going into private practice, and has no returned to the bench.

Happy Anniversary to:

Dawn Hughes (9 years) Danielle Gleason (8 years) Blake Alphonso (3 years)
Resources/Links:

www.laworks.net www.dol.gov/owcp/dlhwc/index.htm

QUOTE OF THE MONTH:

“The best way to cheer yourself up is to cheer somebody else up.”
– Mark Twain

In District 03, Lake Charles, Louisiana, claims are now being transferred to the new Judge, Diane Mayo. Several hearings and Trials have been postponed while Judge Mayo generates her docket/calendar.

RECENT LOUISIANA WORKERS’ COMPENSATION CASES

In this month’s newsletter, I want to address an ongoing workers’ compensation issue that has caused a lot of concern among employers and insurers. There have been many questions as to whether an employer/insurer can rely on medical decisions made by its Utilization Review department, when other medical evidence disputes the approval/denial of requested treatment.

La.R.S. 23:1203 provides that the employer/insurer pay for medical benefits that are “reasonable and necessary.” La.R.S. 23:1203.1 sets forth Medical Treatment Guidelines which establish a set of criteria for the consideration of medical treatment based on medical evidence, literature, and clinical experience. The Medical Treatment Guidelines were designed to expedite the approval of treatment.

However, the Medical Treatment Guidelines have caused a number of problems. We have had several cases where a physician has recommend treatment that is denied by Utilization Review Department and litigation ensues as to whether that treatment is reasonable, necessary, and should, ultimately, be approved. Should the employer/insurer be able to rely on the denial by Utilization Review since its decision was based on the application of the Medical Treatment Guidelines? Or should the employer/insurer be forced to override the Utilization Review decision because “other medical evidence” suggests that the treatment recommended is reasonable and necessary, even though it may not fall specifically under the Guidelines. Essentially, how much can we really rely on our Utilization Review department?

This issue has begun to arise in the workers’ compensation courts and the results have been surprising. Our prior newsletters have discussed some of these cases, and it deserves a closer look. Ultimately, the workers’ compensation courts have looked at the facts of each case and often held, depending on the facts, that medical treatment should be approved despite Utilization Review’s denial of same.

Here are four (4) cases that address this issue from three (3) of the Appellate Courts in Louisiana:

Prince v. Superior Energy Services, LLC and Liberty Mutual Ins. Co., 15-728 (La. App. 3 Cir. 12/16/15),

The Third Circuit Court of Appeal reversed the workers’ compensation judge’s opinion in favor of the employer. The employer refused to approve a second MRI scan and a psychological exam to determine if claimant was a proper candidate for a discogram (as required by the Medical Treatment Schedule). The Third Circuit found that greater weight should be afforded to the Medical Treatment Schedule and the established guidelines which set forth a treatment protocol, particularly when faced with the opinions from physicians who do not agree with the Medical Treatment Schedule. The workers’ compensation judge’s decision to afford greater weight to the physicians who did not agree with the Medical Treatment Schedule over the treating physician who did was legal error. Penalties awarded of $2,000 for denial of a second MRI, $2,000 for denial of psychological exam, $2,000 for termination of indemnity benefits, and attorney fees of $3,500 were given, but then reversed by the Third Circuit Court of Appeal.

This is an interesting case by the Third Circuit, when compared to its decision in Ardoin v. Calcasieu Parish School Board, cited below, only three months later.

Ardoin v. Calcasieu Parish School Board, 2016 WL 430366 (La. App. 3rd Cir. 2/3/16)

A workers’ compensation claimant filed a Disputed Claim for Compensation requesting authorization for purchase of an adjustable mattress after suffering from a low back injury that required surgery. The Insurer’s pre-certification process and the Office of Workers’ Compensation Medical Director denied the medical request stating that “such large expenses purchases such as spas, whirlpools, and special mattresses are not necessary to maintain function.” The recently retired Judge Lowery overturned the denial and found that the School Board failed to reasonably controvert the necessity of the adjustable mattress, and ordered the School Board to approve same. Judge Lowery also taxed Dr. Clark Gunderson’s expert witness fee to the School Board and cast the School Board with penalties and attorney fees.

The Third Circuit Court of Appeal affirmed the entire judgment, including penalties and attorney fees. The Third Circuit held that the medical evidence from Dr. Clark Gunderson supports that this particular claimant would have benefitted from the adjustable bed. Moreover, the Third Circuit found that penalties and attorney fees were proper because the School Board relied only on the Medical Treatment Guidelines’ decision, without fully investigating whether the request was reasonable for this particular claimant, and did not produce any medical evidence stating otherwise. The Third Circuit Court of Appeal held that relying solely on the Medical Director is a “departure from the long-standing jurisprudence requiring an employer to rely on competent medical advice when the decision to deny medical treatment is made.”

Friedman v. Ecolab, Inc., 197 So.3d 491 (La. App. 2 Cir. 2/3/16)

A workers’ compensation claimant filed a disputed claim for medical treatment after a low back injury. The medical director of the workers’ compensation administration denied the surgery request on the basis that the claimant did not produce sufficient documentation to consider the surgery. Claimant sought review from workers’ compensation Judge Brenda Irving. Judge Irving reversed the decision and ordered the employer to cover the cost of surgery. Judge Irving also awarded $2,000 in penalties and $4,000 in attorney fees to the claimant. The Employer appealed to the Second Circuit Court of Appeal.

The Second Circuit Court of Appeal affirmed the decision and awarded an additional $3,000 in attorney fees to the claimant for having to defend his position on appeal. The Second Circuit reviewed the medical records provided and opined that the claimant proved, by clear and convincing evidence, that the medical director’s decision was not in accordance with the Medical Treatment Guidelines as set forth in La.R.S. 23:1203.1. The Appellate Court affirmed the penalty and attorney fee award by holding that the lower court has great discretion as to whether to allow penalties and attorney fees, and the appellate court refused to disturb that award.

This ruling is even more concerning considering the OWC Medical Director initially denied the procedure. The Courts took the treatment decisions out of the hands of a medical expert, who was appointed by the Office of Workers’ Compensation Administration.

Debbie Motichek v. State of Louisiana through the Department of Health and Hospitals, No.2016 CW 0330 (La. App. 1 Cir. 06/27/16)

The First Circuit Court of Appeal granted a Supervisory Writ to review Judge Gwendolyn Thompson’s ruling that the claimant’s LWC-WC-1008/Disputed Claim for Compensation was filed prematurely. The claimant filed his Disputed Claim for Compensation seeking authorization of prescription medication. The employer argued that requests for prescription medication must be submitted in a LWC-WC-1010/Request for Authorization and considered in accordance with the Medical Treatment Guidelines. Judge Thompson agreed and held that until the claimant follows the Medical Treatment Guidelines as set forth in La.R.S. 23:1203.1, his LWC-WC-1008/Disputed Claim for Compensation was premature.

The First Circuit Court of Appeal reversed and ruled in favor of the claimant. The First Circuit Court of Appeal reasoned that prescription medication is not subject to the approval and appeal process authorized by La.R.S. 23:1203.1. Therefore, claimant’s LWC-WC-1008/Disputed Claim for Compensation is not premature. The Courts again took the medical decision-making power out of the hands of experts, and placed it within the Court’s authority.

So what does this mean? The Appellate Courts will not automatically uphold an employer/carrier’s denial of medical treatment, when such denial is based on Utilization Review alone. Each set of facts must be scrutinized and, in some cases, Utilization Review should be overridden when “other medical evidence” supports the approval of treatment.

We have moved into our new office. Our new address is:

1404 Greengate Drive
Suite 110
Covington, Louisiana 70433

May 2016

We continue to offer summer dates for seminars/classes on Louisiana Workers’ Compensation Act, the Longshore and Harbor Workers’ Compensation Act, and Jones Act/maritime areas of law. We also provide a ‘Lunch and Learn’ series, where we meet over lunch to discuss any areas of law you wish. Please contact me if interested.

As always, please continue to provide us with feedback and comments on our monthly newsletter. If there are any ways we can make it better, please let us know.

Many Thanks, Matthew D. Crumhorn, Esq.

FIRM NEWS

Rabalais Unland participated in a Rotary Club’s annual Quack-a-falaya event. This event supports healthy families and recreation in St. Tammany Parish, Louisiana. Rabalais Unland was a raffle winner!!

LOUISIANA WORKERS’ COMP NEWS

The Louisiana Workers’ Compensation Advisory Council’s next meeting is scheduled for June 23, 2016 at 9:30 a.m.

Average weekly wage: $865.31 Maximum compensation rate: $649.00 Minimum compensation rate: $173.00

The Louisiana Workforce Commission has amended the filing fees and court costs for the 2016 year. Please refer to the website for information. www.laworks.net

Effective immediately, Deputy Director Pauline Williams will be acting Director of the Second Injury Board.

Happy Birthday to:

Happy Anniversary to:

Christie Clark Cathy Guy

Chase Boeneke (3 years)

QUOTE OF THE MONTH :

“Leadership is a potent combination of strategy and character. But if you must be without one, be without the strategy.

– Norman Schwarzkopf

Resources/Links:

www.laworks.net www.dol.gov/owcp/dlhwc/index.htm

IMPORTANT CHANGES TO LABOR LAW

The U.S. Department of Labor has finalized sweeping changes to the Fair Labor and Standards Act (FLSA) overtime rules. The new changes will extend protection to workers by increasing the salary threshold for “white collar” exemptions from the current minimum of $455 per week, or $23,660 a year, to $913 per week, or $47,476 per year. The salary threshold will also automatically update every three (3) years.

Please refer to the Department of Labor website for more information. www.dol.gov.

IMPORTANT CHANGES TO GENERAL LOUISIANA LAW

AS A REMINDER:

Louisiana Administrative Code 40:I.311.H now requires the payor to pay uncontested ELECTRONIC medical bills within thirty (30) days of receiving them, or receiving additional information that was requested. Bills that are not timely paid will be subject to the penalty provisions of Louisiana Revised Statute 23:1201(F).

RECENT LOUISIANA WORKERS’ COMPENSATION CASES

Ledet v. Robinson Helicopter Co., 15-CA-1286 (La. App. 1 Cir. 4/15/16)

This dispute involved enforcement of a settlement agreement. LWCC filed a Motion to Enforce Settlement, seeking an order forcing the claimant and a third party to settle so LWCC could obtain reimbursement of workers’ compensation benefits. The claimant’s agreement with the third party included an indemnification and hold harmless provision, whereby the claimant agreed to accept all responsibility for liens.

The First Circuit held that this agreement did not create a right in favor of LWCC to seek enforcement of the settlement agreement to which it is not a party. LWCC clearly had a cause of action to seek reimbursement of workers’ compensation benefits, but the law does not provide a right of reimbursement from the claimant. Once the claimant settled her claims with the third parties, the rights of LWCC, along with the claimant and the third parties, were governed by LA. R.S. 23:1102. That statute does not grant a workers’ compensation insurer a right of reimbursement against an employee or his dependant for benefits previously received, but only a right of reimbursement from the third parties.

Black v. CenturyLink, 50,572-WCA (La. App. 2 Cir. 4/13/16)

This case is another example of the ongoing problems with the Medical Treatment Guidelines. If you have participated in our ‘lunch and learn’ seminar, the use of the Medical Treatment Guidelines has been a big issue in Louisiana.

In this claim, the Second Circuit Court of Appeals found that the workers’ compensation Judge erred in not finding that the Medical Treatment Guidelines “pre-authorized” the prescription of topical cream. The Appellate Court held that although the Medical Treatment Guidelines do not include topical creams as nonoperative therapeutic procedure for patients with carpal tunnel syndrome, the Guidelines specifically list “topical medications” as an authorized treatment for another of the claimant’s conditions, complex regional pain syndrome.

Gulley v. Hope Youth Ranch, et. al., 50,562-WCA (La. App. 3 Cir. 4/6/16)

This is another Medical Treatment Guideline issue, but from the Third Circuit Court of Appeal. In this case, the Third Circuit found no error in the Office of Workers’ Compensation Medical Director’s decision to deny approval for a trial of a spinal cord stimulator.

Gaines v. Home Care Solutions, LLC., 2015-CA-0895 (La. App. 4 Cir. 4/6/16)

The employer appeals a workers’ compensation decision that the claimant suffered a compensable low back injury and is temporary and totally disabled from same. The claimant was bitten by a dog while at a client’s home and was treated twice for leg pain. Several days later she complained of low back pain and reported it to her employer.

In review of the medical evidence and witness testimony the workers’ compensation Judge found the claimant’s version of events to be credible. The Appellate Court relied on the lower court’s credibility of witnesses and affirmed the Judgment.

Weems v. Electric Inc. Co. et al., 15-854 (La. App. 3 Cir. 5/11/16)

The Third Circuit Court of Appeal affirmed the workers’ compensation Judge’s decision to grant summary judgment in the employer’s favor. The Court’s found that the claimant failed to disclose her pre-existing neck andbackproblems,despitealongstrugglewithsame. Theclaimantfailedtodiscloseherpre-existingproblems to both her physicians and in written discovery requested by the employer. The courts found that the claimant violated La.R.S. 23:1208 and forfeited her right to benefits.

Maldonado-Mejia v. Eversound Kitchen & Bath, LLC., 15-CA-0859 (La. App. 4 Cir. 4/29/16)

The Fourth Circuit Court of Appeals found that the claimant is not entitled to workers compensation benefits as an independent contractor. The Courts reasoned that in order for an independent contractor to be covered under the “manual labor exception,” he must show that a substantial part of his work time is spent in manual labor in carrying out the terms of his contract with the principal and the work performed by him is part of the principal’s trade, business, or occupation. The jurisprudence has held that manual labor occurs where the physical element predominates the mental element. The Court found that, while the claimant’s cleaning services were manual labor, moving or cleaning work is not essential or integral to the sales or installation of cabinets or counter tops.

Editor’s welcome:

April 2016

Please be aware that our office will be closed on May 6, 2016 while we move into our new offices. Please contact 504-228-6788 with any questions during that day.

We continue to offer Spring dates for seminars/classes on Louisiana Workers’ Compensation Act, the Longshore and Harbor Workers’ Compensation Act, and Jones Act/maritime areas of law. We also provide a ‘Lunch and Learn’ series, where we meet over lunch to discuss any areas of law you wish. Please contact me if interested.

As always, please continue to provide us with feedback and comments on our monthly newsletter. If there are any ways we can make it better, please let us know.

Many Thanks, Matthew D. Crumhorn, Esq.

FIRM NEWS

We will have a brand new office effective May 6, 2016. Please keep a look out for our new contact information.

LOUISIANA WORKERS’ COMP NEWS

The Louisiana Workers’ Compensation Advisory Council’s next meeting is scheduled for May 26, 2016 at 9:30 a.m.

Average weekly wage: $865.31 Maximum compensation rate: $649.00 Minimum compensation rate: $173.00

The Louisiana Workforce Commission has amended the filing fees and court costs for the 2016 year. Please refer to the website for information. www.laworks.net

Judge Diane Lundeen at the OWC District 08, will be the new Chief Judge for workers’ compensation.

Happy Birthday to:

Happy Anniversary to:

Dawn Hughes Martha Hand Megan Gladner

Mary Karl (16 years) Catherine Guy (7 years) Joshua Couvillion (3 years) Anne Bruno (1 year)

QUOTE OF THE MONTH :

“Success is simple. Do what’s right, the right way, at the right time.”
– Arnold H. Glasow

Resources/Links:

www.laworks.net www.dol.gov/owcp/dlhwc/index.htm www.rabalaisunland.com

IMPORTANT CHANGES TO GENERAL LOUISIANA LAW

AS A REMINDER:

Louisiana Administrative Code 40:I.311.H now requires the payor to pay uncontested ELECTRONIC medical bills within thirty (30) days of receiving them, or receiving additional information that was requested. Bills that are not timely paid will be subject to the penalty provisions of Louisiana Revised Statute 23:1201(F).

RECENT LOUISIANA WORKERS’ COMPENSATION CASES

Ledet v. Robinson Helicopter Co., 15-CA-1286 (La. App. 1 Cir. 4/15/16)

LWCC filed a Motion to enforce a settlement agreement between an employee and third parties, in order to seek reimbursement of workers’ compensation benefits from the employee. The settlement language included a defense, indemnity, and hold harmless provision whereby the employee would be responsible for any liens, claims, demands made by third parties. The Court held that this language does not create a right of action in favor of LWCC to seek enforcement of a settlement to which it was not a party. The Court ruled that once the employee settled her claims with the third parties, the rights and obligations of LWCC, along with the employee and the third parties, were governed by La. R.S. 23:1102. That statute does not grant the employer or insurer a right of reimbursement against the employee, but only a right of reimbursement from third parties.

Black v. Centurylink, 2016 WL 1449225 (La. App. 2 Cir. 4/13/16)

The employee sought an appeal of the workers’ compensation Judge (WCJ), who determined that the decision of the Medical Director that topical hand cream for hand pain should not be available was in accordance with the Medical Treatment Guidelines. The Second Circuit Court of Appeal reversed and found that the WCJ erred in not finding that the Medical Treatment Guidelines “pre-authorized” prescription for topical hand cream to treat pain caused by chronic regional pain syndrome.

The employee’s diagnosis of complex regional pain syndrome and carpal tunnel syndrome is important in this case. The Medical Treatment Guidelines discuss topical pain cream for musculoskeletal disorders and chronic pain disorders, but there is no literature as to whether topical medications are used for carpal tunnel syndrome. The Appellate Court reversed the WCJ on the basis that the Medical Treatment Guidelines does provide for topical medications for “neuropathic disorders,” even though the Guidelines also state that “there is no literature addressing its use in patients with complex regional pain syndrome.” The Court concluded that the “lack of literature” should not negate the inclusion of topical medications as a nonoperative therapeutic treatment.

Gulley v. Hope Youth Ranch, et. al., 2016 WL 1358021 (La. App. 3 Cir. 4/6/16)

The employee sought review of judgment by the workers’ compensation Judge (WCJ) affirming the decision of the Medical Director that denied a trial of a spinal cord stimulator. The Third Circuit Court of Appeal affirmed.

The Third Circuit Court of Appeal stated that the decision of a Medical Director can only be overturned “by clear and convincing evidence” and that the Appellate Court can only apply a “manifest error” standard when reviewing the decision of a WCJ. The Third Circuit re-examined the Medical Treatment Guidelines with respect to the use of the spinal cord stimulator and held that the Medical Director’s decision that the records provided do not support the necessity of such treatment.

Johnson v. Great West Casualty Company, et. al., 2016 WL 1039432 (La. App. 3 Cir. 3/16/16)

The employee sought workers’ compensation benefits for a back injury based on an unwitnessed accidents four months before filing a report. The workers’ compensation judge (WCJ) awarded benefits but denied the employee’s claim for penalties and attorney fees. The Third Circuit Court of Appeal affirmed the ruling in its entirety.

The Third Circuit Court of Appeal affirmed the ruling because the WCJ found the employee to be a credible witness. He testified that at the time of his back pain he was experiencing non-debilitating pain from avascular necrosis in both hips and was unsure of the cause of the back pain. The employee testified that he hoped his pain would resolve without missing any time from work and that he feared being fired if he reported a work accident.

Williams v. Morris Transp, 184 So. 3d 136 (La. App. 2 Cir. 11/18/15), writ denied, 2016 WL 1554602 (La. 4/4/16)

This case involves an out-of-state employer and an injured employee who claims workers’ compensation benefits in Louisiana for an accident occurring in another state. The employer objected to the Louisiana jurisdiction. The workers’ compensation Judge (WCJ) denied the employer’s Exception of Lack of Subject Matter Jurisdiction; however, the Second Circuit Court of Appeal reversed.

The employer is located in Arkansas. The employee was injured in Mississippi in a motor vehicle accident. The employee initially applied for and received both medical and indemnity benefits under Arkansas’ workers’ compensation system. He was released to return to work. He then sought benefits under Louisiana’s jurisdiction, because his residence was in Monroe, Louisiana. The WCJ held that the employee’s work was not localized in Louisiana, thus, the sole issue was determining the state where the contract for hire was confected. The WCJ ruled that the initial phone call with the employer and the receipt of employment documents at his home in Louisiana meant that he had a “reasonable expectation of a job upon arrival” to the employer’s location in Arkansas. The WCJ found that the contract for hire was in Louisiana and that the employee is entitled to workers’ compensation benefits in Louisiana.

The Second Circuit Court of Appeal reversed. The Second Circuit reasoned that determining where a “contract for hire” is made involves a factual test, where each and every factor of employment must be considered and weighed. The specific facts in this case revealed that the employer did not have any offices in Louisiana; the employer’s trucking activities were not concentrated in Louisiana; the employee was not hired to make deliveries primarily in Louisiana; the parties’ understanding of the place of job performance was not intended to be in Louisiana; the representative of the employer who made initial contact with the employee did not have hiring authority over the phone; and the employer’s wages and employment contractual issues would be governed by Arkansas’ laws. The Second Circuit also gave consideration to public policy and the fact the employer did not operate any business in Louisiana. The Second Circuit held that the proper jurisdiction is in Arkansas.

Tingle v. Page Boiler, Inc., 186 So. 3d 220 (La. App. 2 Cir. 01/13/16)

The employee appealed a workers’ compensation judgment that rejected, in part, his claim for indemnity and medical benefits, and, in full, his claim for dependent benefits, while incarcerated. At Trial, the workers’ compensation judge (WCJ) stressed that the employee had multiple inconsistent statements regarding his accident and medical history, and had the employer asserted fraud under La.R.S. 23:1208, the Judge would have granted same. The WCJ found that the employee lacked credibility and failed to prove that he was entitled to benefits after he went to jail.

The Second Circuit Court of Appeal agreed with the WCJ’s findings that the employee lacked credibility and that his testimony was refuted by objective findings, clouded by circumstantial evidence and tainted by poor credibility. The Second Circuit Court of Appeal added that even if the employee was credible, he gave no documentation to support that his dependants were entitled to his workers’ compensation benefits while he was in jail.

Wilson v. Glazer Distributors of Louisiana, Inc., 185 So. 3d 891 (La. App. 5 Cir. 1/27/16)

The employer appealed a decision of the Office of Workers’ Compensation awarding temporary total disability benefits and penalties and attorney fees to the employee. The employee injured her low back in a trip and fall incident in May 2012 she received medical treatment and continued to work regular duty, but noticed pain in her right shoulder and right side of her neck while reaching overhead, lifting, and pushing. She did not inform her supervisors of this, but complained to several co-workers. Then in July 2013, two co-workers were out, so the employee had to increase her job duties. She called in sick the two days following, and on the third day she reported to her supervisor that she was experiencing arm and neck pain. The employer and insurer denied her claim for benefits to her neck/shoulder because the condition appeared to be the result of a “gradual deterioration” rather than an “accident” as defined by the Louisiana Workers’ Compensation Act.

The Fifth Circuit Court of appeal affirmed the WCJ”s ruling that the employee’s testimony that her neck and arm pain arose suddenly after an increase of her job duties in July 2013 was supported by medical evidence and statements from co-workers. This amounts to an “accident” as defined by the Louisiana Workers’ Compensation Act. Penalties and attorney fees were also affirmed.

Editor’s welcome:

March 2016

I hope everyone had a great Easter holiday. Please be advised that the festival season is happening in Louisiana. There are festivals and events nearly every week/weekend until Fourth of July. The seafood is great and the weather is beautiful. Personally, this is my favorite time of year in Louisiana.

I want to continue to highlight to growth of our firm. With the new office staff, attorneys, and paralegals, the future is bright for Rabalais Unland, LLP . We have a new website coming very soon and our new firm logo has gotten wonderful feedback. We are scheduled to move into our new office on May 1, 2016. Thank you to everyone for the support.

We continue to offer Spring dates for seminars/classes on Louisiana Workers’ Compensation Act, the Longshore and Harbor Workers’ Compensation Act, and Jones Act/maritime areas of law. We also provide a ‘Lunch and Learn’ series, where we meet over lunch to discuss any areas of law you wish. Please contact me if interested.

As always, please continue to provide us with feedback and comments on our monthly newsletter. If there are any ways we can make it better, please let us know.

Many Thanks, Matthew D. Crumhorn, Esq.

FIRM NEWS

We will have a brand new office effective May 1, 2016. Please keep a look out for our new contact information.

Please welcome new members to our firm: Jackie McKenzie (paralegal)

Happy Birthday to: Chase Boeneke
Happy Anniversary to: Kristyn Paylor (2 years)

QUOTE OF THE MONTH:

“You may not control all the events that happen to you, but you can decide not to be reduced by them.” – Maya Angelou

LOUISIANA WORKERS’ COMP NEWS

The Louisiana Workers’ Compensation Advisory Council’s next meeting is scheduled for April 28, 2016 at 9:30 a.m.

Average weekly wage: $865.31 Maximum compensation rate: $649.00 Minimum compensation rate: $173.00

The Louisiana Workforce Commission has amended the filing fees and court costs for the 2016 year. Please refer to the website for information. www.laworks.net

Judge Sam Lowery, OWC District 03 in Lake Charles, Louisiana has retired. There is no recent news on who will replace him.

The rumor is that Judge Diane Lundeen at the OWC District 08, will be the new Chief Judge for workers’ compensation.

Resources/Links:

www.laworks.net www.dol.gov/owcp/dlhwc/index.htm www.rabalaisunland.com

IMPORTANT CHANGES TO GENERAL LOUISIANA LAW

AS A REMINDER:

Louisiana Administrative Code 40:I.311.H now requires the payor to pay uncontested ELECTRONIC medical bills within thirty (30) days of receiving them, or receiving additional information that was requested. Bills that are not timely paid will be subject to the penalty provisions of Louisiana Revised Statute 23:1201(F).

RECENT LOUISIANA WORKERS’ COMPENSATION CASES

Welborn v. Thompson Construction, 15-CA-1217 (La. App. 1 Cir. 2/26/16),

This is a great case showing that the injured worker must provide details and specifics regarding the occurrence of an accident. The injured worker must provide evidence that, as a whole, shows that more probably than not an employment accident occurred and that it had a causal relation to the disability. If the evidence leaves the probabilities equally balanced, the injured worker has failed to carry the burden of persuasion. Likewise, the employee’s case must fail if the evidence shows only a possibility of a causative accident or leaves it to speculation or conjecture.

In this claim, the employee failed to meet his burden where one doctor testified that the employee’s injury did not fit his story of the accident and the other testified that the mechanism of the reported injury would be highly unlikely to produce the injury.

Garrett v. K&B Machine Works, Inc., 15-CA-1381 (La. App. 1 Cir. 2/26/16),

This case discusses the time period for payment of an award or judgment issued by the Office of Workers’ Compensation and what happens when the award is not paid timely. In this case, eighty-six (86) days after a judgment in favor of claimant was rendered, the insurance company paid claimant the remaining amount owed under the judgment. La. Rev. Stat. 23:1201(G) mandates penalties “if any award payable under the terms of a final, non appealable judgment is not paid within thirty days after it becomes due, . . .” The Court noted that the term “final, non appealable judgment” means a judgment where the sixty (60) days to take a devolutive appeal have run, not a judgment where the thirty days to take a suspensive appeal have run.

The trial court did not err in denying penalties and attorney fees, because the insurance company paid the judgment within thirty days after the sixty day delay for taking a devolutive appeal had run.

Thompson v. DHH-Office of Public Health, 15-CA-1032 (La. App. 1 Cir. 2/26/16)

This case is another example of a medical provider requesting treatment that is outside the Medical Treatment Guidelines. If medical procedures are not included in the medical treatment schedule, it is not presumptively deemed necessary. However, claimants can overcome the predetermination by seeking review and/or a variance from the Office of Workers’ Compensation Medical Director. The Medical Director’s decision can be overturned when it is shown by clear and convincing evidence that the decision was not in accordance with the guidelines.

While the statute is silent with regard to what evidence may be introduced to the OWC judge, the Appellate Court found that the judge erred in refusing to allow claimant to present “new” evidence at the hearing that had not been before the Medical Director in making its decision against claimant. The Appellate Court held that, when the medical director’s decision is challenged, the claimant must increase the evidence to meet the clear and convincing statutory standard. By limiting the claimant’s evidence on appeal to the same evidence that was presented to the medical director, the OWC judge’s decision erroneously either increased the initial “preponderance of the evidence” statutory burden of proof to the higher clear and convincing standard, or it may render it impossible for a claimant who properly meets his burden before the medical director to also meet the increased burden of proof on the appeal, without allowing any additional evidence.

Namias v. Sunbelt Innovative Plastics, LLC, 15-CA-1380 (La. App. 1 Cir. 2/24/16)

This case pertains to a subsequent injury, which occurred away from the employer’s premises, that aggravated the original work-related injury. Under certain circumstances, an aggravation of an injury initially sustained at work is regarded as compensable, obligating the employer to continue paying compensation benefits, even though the aggravation develops away from the premises and when the claimant is no longer employed by the employer. The First Circuit Court of Appeal reasoned that the key inquiry is the relationship between the second injury and the initial, work-related injury. Under the facts presented, the only evidence of a relationship between the first and second injuries were claimant’s testimony at trial and a self-report of the incident to his treating physician. This evidence was contradicted by the medical records and claimant’s own inconsistent statements. Therefore, the trial court’s judgment, holding claimant’s injuries sustained as a result of the second incident were an expected consequence of the injuries sustained in the first work-related accident, was vacated.

Carr v. Sanderson Farm, Inc., 15-CA-0953 (La. App. 1 Cir. 2/17/16

This case discusses an accident caused by a co-employee who struck the claimant at work causing injury. Although an intentional tort may be excepted from the workers’ compensation act, in this case there was no proof as to why the co-employee struck the claimant nor the scope his employment duties and how his intentional tort was incidental to those duties. Therefore, the employer was not vicariously liable in tort for this act.

The First Circuit Court of Appeal noted, however, that a cause of action can be stated in negligence against an employer by an employee who was the subject of an intentional act committed by a co-employee, after the employee notified the employer of threats by the employee made away from the workplace. Fortunately for the employer in this claim, the bare allegation in the petition that the plaintiff informed her supervisors of a threat made by the co-employee outside the workplace and directed at her is not sufficient to establish that the employer should have foreseen the alleged intentional act being committed at work and acted to prevent it.

Baker v. Harrah’s, 15-CA-0229 (La. App. 4 Cir. 3/9/16)

This is an interesting case that addresses a “hot topic” in Louisiana regarding a vocational rehabilitation counselor’s communication with the employer and insurer. The Fourth Circuit Court of Appeal found that it is unreasonable to require a vocational counselor to agree to include the employee and her attorney in all oral conversations with the employer.

The Fourth Circuit Court of Appeal also addresses whether “pain” can be sufficient to declare a claimant permanently and totally disabled. The Fourth Circuit stated that a disability due to chronic pain does not meet the requirements of “physical” disability under La. Rev. Stat. 23:1221(2)©. Even if an employee seeking PTD is in pain, he must work unless he proves by clear and convincing evidence that he is physically unable to engage in any type of employment whatsoever, including self-employment. The Supreme Court and this circuit have rejected a “totality of the circumstances” test in assessing permanent total disability. When a satisfactory degree of healing is reached and the claimant is no longer in a period of recovery his condition will be deemed “permanent” and he will no longer be entitled to TTD benefits.

Payton v. Sears, Roebuck and Co., Sedgwick CMS, 15-CA-0311 (La. App. 4 Cir. 2/17/16)

This claim addresses whether a delay in reporting an accident is sufficient to deny a claim as compensable. The Fourth Circuit Court of Appeal found that under the facts presented, the claimant met his burden of proving a work-related accident even though he did not report the accident and injury immediately following the accident. The trial court accepted claimant’s explanation that he wanted to see if the injury resolved quickly and when it did not, he wanted to get the opinion of a medical professional that his injury was related to the work accident before he reported it to his employer.

RECENT CASES UNDER THE MARITIME AND JONES ACT ARENA

Stermer v. Archer-Daniels-Midland Co., et al., 15-811 (La. App. 3 Cir. 2/24/196)

This claim pertains to an award for attorney fees for an employer’s failure to pay maintenance and cure. The Third Circuit Court of Appeal found that attorney fees are appropriate only when an employer’s failure to pay is found to be “callous and recalcitrant, arbitrary and capricious, or willful, callous, and persistent.” The Defendant argued that when it paid all the maintenance and cure “under protest,” plaintiff’s claim for attorney fees was limited to the time period preceding the date of its “payment under protest.” Trial court disagreed and awarded attorney fees based on the total hours spent on all issues.

This decision is important in that the entitlement to attorney fees for work done in “proving up” the claim at trial after a “conditional tender” subject to a “reservation of rights” is res nova. The Appellate Court continued to use the liberal interpretation in maintenance-and-cure cases, and found no manifest error in the trial court’s decision to award attorney fees for arbitrary and capricious failure to pay maintenance and cure for all work done in this case and no to restrict the award to work done prior to the conditional tender of maintenance and cure.

Editor’s welcome:

It’s a beautiful time of year in south Louisiana. The weather is perfect and festival season all across the State begins. It’s going to be a great Spring.

I am excited for our law firm as it continues grow. We have hired a new Firm Administrator and an associate attorney. We have a new website coming very soon and our new firm logo has gotten wonderful feedback. Thank you to everyone for the support.

We continue to offer Spring dates for seminars/classes on Louisiana Workers’ Compensation Act, the Longshore and Harbor Workers’ Compensation Act, and Jones Act/maritime areas of law. We also provide a ‘Lunch and Learn’ series, where we meet over lunch to discuss any areas of law you wish. Please contact me if interested.

As always, please continue to provide us with feedback and comments on our monthly newsletter. If there are any ways we can make it better, please let us know.

Many Thanks, Matthew D. Crumhorn, Esq. FIRM NEWS

Please welcome new members to our firm:

Connie Collura (firm administrator) Michael Johnson, Jr. (associate attorney)

Happy Birthday to: Michael Johnson, Jr.

QUOTE OF THE MONTH :

“You don’t learn to walk by following the rules. You learn by doing and falling over.” – Richard Branson

LOUISIANA WORKERS’ COMP NEWS

The Louisiana Workers’ Compensation Advisory Council’s next meeting is scheduled for March 24, 2016 at 9:30 a.m.

Average weekly wage: $865.31 Maximum compensation rate: $649.00 Minimum compensation rate: $173.00

The Louisiana Workforce Commission has amended the filing fees and court costs for the 2016 year. Please refer to the website for information. www.laworks.net

Judge Sam Lowery, OWC District 03 in Lake Charles, Louisiana has retired. His retirement is effective at the end of January. There is no recent news on who will replace him.
Resources/Links:

www.laworks.net www.dol.gov/owcp/dlhwc/index.htm www.rabalaisunland.com

IMPORTANT CHANGES TO GENERAL LOUISIANA LAW

Louisiana Administrative Code 40:I.311.H now requires the payor to pay uncontested medical bills within thirty (30) days of receiving them, or receiving additional information that was requested. Bills that are not timely paid will be subject to the penalty provisions of Louisiana Revised Statute 23:1201(F), which requires employers and insurers to pay an additional 12% of the bill, up to $2,000. Essentially, the new rule got rid of the sixty (60) day period for electronic bills.

RECENT LOUISIANA WORKERS’ COMPENSATION CASES

Ardoin v. Calcasieu Parish School Board, 2016 WL 430366 (La. App. 3rd Cir. 2/3/16)

A workers’ compensation claimant filed a Disputed Claim for Compensation requesting authorization for purchase of an adjustable mattress after suffering from a low back injury that required surgery. The Insurer’s pre-certification process and the Office of Workers’ Compensation Medical Director denied the medical request stating that “such large expenses purchases such as spas, whirlpools, and special mattresses are not necessary to maintain function.” The recently retired Judge Lowery overturned the denial and found that the School Board failed to reasonably controvert the necessity of the adjustable mattress, and ordered the School Board to approve same. Judge Lowery also taxed Dr. Clark Gunderson’s expert witness fee to the School Board and cast the School Board with penalties and attorney fees.

The Third Circuit Court of Appeal affirmed the entire judgment, including penalties and attorney fees. The Third Circuit held that the medical evidence from Dr. Clark Gunderson supports that this particular claimant would have benefitted from the adjustable bed. Moreover, the Third Circuit found that penalties and attorney fees were proper because the School Board relied only on the Medical Treatment Guidelines’ decision, without fully investigating whether the request was reasonable for this particular claimant, and did not produce any medical evidence stating otherwise. The Third Circuit Court of Appeal held that relying solely on the Medical Director is a “departure from the long-standing jurisprudence requiring an employer to rely on competent medical advice when the decision to deny medical treatment is made.”

Burgess v. Sewage & Water Board of New Orleans, 2015 CA-0918 (La. AA. 4th Cir. 2/3/16)

In this workers’ compensation case, the sole issue presented is whether the choice of pharmacy belongs to the employee. The Fourth Circuit Court of Appeal affirmed the trial court’s judgment ordering the employer to reimburse the employee for prescription medication obtained by the pharmacy selected by the employee. The claimant received medication through the Injured Workers’ Pharmacy despite previously agreeing the adhere to the employer’s pharmacy program. There is no dispute as to whether the medications were reasonable, necessary, and related to the accident. Interestingly, the Fourth Circuit Court of Appeal cited a case under the Alabama Workers’ Compensation law, which held that an employer must pay for all treatment deemed reasonable and necessary at an amount not to exceed the prevailing rate of fees established by the Act.

The Fourth Circuit held that the Louisiana Workers’ Compensation Act contained no provision granting the employer the right to select the pharmacy that the employee must use. The Act, however, obligates the employer to pay for the employee’s reasonable and necessary medications. Thus, the Fourth Circuit found that the choice of pharmacy belongs to the employee.

This is an important case. The Second Circuit Court of Appeal has already held that the choice of pharmacy belongs on the employee. Naron v. LIGA, 175 So.3d 475 (L. App. 2nd Cir. 9/9/15). The Third and Fifth Circuit’s have held that the choice of pharmacy belongs to the employer. (Downs v. Chateau Living Center, 167 So, 3d 875 (La. App. 5th Cir. 1/28/15), Lafayette Bone & Joint Clinic v. Guy Hopkins Const. Co. Inc., 177 So.3d 142 (La. App. 3rd Cir. 10/21/15). Louisiana is clearly becoming overwhelmingly a ‘patient choice’ state.

Winzer v. Richards and State Farm Mutual Automobile Insurance Co., et. al., 2016 WL 155047 (La. App. 2nd Cir. 1/13/16).

This is a personal injury action, but involves a workers’ compensation issue. A passenger, who was injured when a vehicle in which he was riding was rear-ended by an employee’s vehicle, brought a personal injury action against the employee, employee’s auto insurer, the employer, and the employer’s auto insurer. At the time of the accident, the defendant driver, Richards, was leaving work and his employer paid him a per diem and travel expenses for same. The plaintiff asserted that Richards was in the course and scope of his employment at the time of the accident, thus making Richards’ employer vicariously liable for plaintiff’s injuries. The employer, CCSI, denied vicarious liability for Richards because he had been terminated from his employment prior to leaving the job site.

CCSI filed for summary judgment on the course and scope issue and was successful. Plaintiff appealed. The Second Circuit Court of Appeal held that whether CCSI paid Richards any travel expenses – be it through a “bonus” or a per diem – was irrelevant to the issue of CCSI’s vicarious liability under the facts presented. At the time of the accident, CCSI proved that Richards was no longer an employee, and that he was driving home to Florida when the accident occurred. The Second Circuit found that Richards was not on any special mission or performing an activity that benefitted CCSI. At the time of the accident, CCSI had no control over Richards’ actions, thus he could not be considered an employee. The Second Circuit Court of Appeal affirmed the lower court’s ruling and the employer, CCSI, was dismissed from the tort claim.

Sharp v. United Fire & Indemnity Co., et al., 15-0976 (La. App. 1 Cir. 12/23/15)

The employer allowed its employees to use company vehicles during their lunch break. The employee, injured while in a company-owned vehicle operated by a co-employee in a bank parking lot where they had gone to cash their paychecks during their lunch break, was in the course and scope of his employment at the time of the accident.

Tingle v. Page Boiler, Inc., 50,373 (La. App. 2 Cir. 01/13/16),

A workers’ compensation judge found that the claimant made misrepresentations that would have justified a total forfeiture of benefits under La. Rev. Stat. 23:1208, but correctly noted that the employer never raised the affirmative defense of fraud so the court could not order forfeiture. In lieu of this remedy, the Judge denied all penalty claims. The Second Circuit Court of Appeal, however, found that claimant’s misrepresentations to health care providers and overall poor credibility had no bearing on the employer’s duty to pay the first 10 weeks of indemnity benefits or to provide medical and pharmacy expenses related to the compensable injury and that therefore, the workers’ compensation court’s failure to award penalties and attorney fees was manifest error.

This case highlights two important points. First, when a Section 1208/Fraud defense is viable, it must be plead in the affirmative and with specificity. This usually requires the filing of a Reconventional Demand against the claimant upon knowledge of the fraudulent misrepresentation. Second, the forfeiture of benefits begins when the misrepresentation occurs, and that the claimant could still be entitled to benefits for the period prior to the fraudulent actions.

Loucious v. Crest Industries, et al., 15-690 (La. App. 3 Cir. 12/16/15)

This case pertains to the statutory “presumption,” set forth in La.R.S.23:1031.1(D), for occupational disease claims. In this case, the Claimant’s alleged occupational disease arose within approximately 6 weeks of employment and thus it was presumed “not to have been contracted in the course of and arising out of his employment” with the employer, unless the presumption was rebutted. The employer pointed out an absence of factual support for one element of causation, the burden was on claimant to rebut the presumption with evidence sufficient to controvert the inference that the disease was not contracted in the course of his employment. The Third Circuit Court of Appeal reasoned that the evidence must focus on claimant’s work activities or life experiences before the time of his employment.

The claimant attempted to offer medical evidence sufficient to overcome the presumption, however, the Third Circuit Court of Appeal declined to award benefits based on a evidentiary issue. The Third Circuit found that the medical report submitted by claimant was not a certified copy of a medical report, a deposition, or an oral examination in open court and was not sworn; therefore, it was not competent evidence. As a result, the Third Circuit held that claimant failed to establish his evidentiary burden of proof at trial.

Prince v. Superior Energy Services, LLC and Liberty Mutual Ins. Co., 15-728 (La. App. 3 Cir. 12/16/15),

The Third Circuit Court of Appeal reversed the workers’ compensation judge’s opinion in favor of the employer. The employer terminated Temporary Total Disability benefits and refused to approve a second MRI scan and a psychological exam to determine if claimant was a proper candidate for a discogram (as required by the Medical Treatment Schedule). The Third Circuit found that greater weight should be afforded to the Medical Treatment Schedule and the established guidelines which set forth a treatment protocol, particularly when faced with the opinions from physicians who do not agree with the Medical Treatment Schedule. The workers’ compensation judge’s decision to afford greater weight to the physicians who did not agree with the Medical Treatment Schedule over the treating physician who did was legal error. Moreover, penalties awarded of $2,000 for denial of a second MRI, $2,000 for denial of psychological exam, $2,000 for termination of indemnity benefits, and attorney fees of $3,500 were given.

This is an interesting case by the Third Circuit, when you compare to its decision in Ardoin v. Calcasieu Parish School Board, cited above. In Ardoin, the Third Circuit overruled the Medical Director, and essentially the Medical Treatment Guidelines, because “competent evidence” called for approval of medical treatment. However, in Prince, the Third Circuit relied on the Medical Treatment Guidelines and penalized an employer who tried to rely on “competent medical evidence” despite the Medical Treatment Guidelines’ approval of the treatment request.

Editor’s welcome:

We are very happy to start the 2016 year off right and we have big changes in store for Rabalais Unland this year. Please keep a lookout for our new website coming soon and updates on our Facebook page.

As part of our legal services, we are offering Spring dates for seminars and refresher classes on Louisiana Workers’ Compensation, Longshore & Harbor Workers’ Compensation, and Jones Act/maritime areas.

For those Louisianians, we wish everyone a wonderful and safe Mardi Gras. Please continue to provide us with feedback and comments on our monthly newsletter. If there are any ways we can make it better, please let us know.

Many Thanks, Matthew D. Crumhorn, Esq.

FIRM NEWS

Birthdays: Kristin Paylor – Happy Birthday!!!

Anniversaries: Evelyn Melerine (9 years)

QUOTE OF THE MONTH:

“If I cannot do great things, I can do small things in a

great way.”
– Martin Luther King, Jr.

LOUISIANA WORKERS’ COMP NEWS

The Louisiana Workers’ Compensation Advisory Council’s next meeting is scheduled for February 26, 2016 at 9:30 a.m.

Average weekly wage: $865.31 Maximum compensation rate: $649.00 Minimum compensation rate: $173.00

The Louisiana Workforce Commission has amended the filing fees and court costs for the 2016 year. Please refer to the website for information. www.laworks.net

New Appointments to the Louisiana Workforce Commission:

– Ava Dejoie has been appointed as the Louisiana Workforce Commission Executive Director.

– Cathy Wells has been appointed as the Louisiana Workforce Commission deputy executive director and chief of staff.

– Chief Judge Sheral Keller has been appointed as the director of the Office of Workers’ Compensation Administration.

IMPORTANT CHANGES TO GENERAL LOUISIANA LAW

As a reminder, Louisiana Code of Civil Procedure article 966 was amended and is now in effect as of January 1, 2016. This article pertains to motions for summary judgment, which can be an effective tool to eliminate legal issues and disputes prior to Trial. If you would like a copy of the changes, please contact me.

RECENT LOUISIANA WORKERS’ COMPENSATION CASES

Marshall v. Town of Winnsboro, 50,255 (La. App. 2 Cir. 11/25/15)

This case is important to show that an employee’s decision to accept early retirement does not necessarily equate to retirement as contemplated by the workers’ compensation statute governing entitlement to SEB. The retirement referred to by La. Rev. Stat. 23:1221(3)(d)(iii) is not the failure to work because of disability. Instead, it refers to the worker who has no intention of returning to work regardless of disability. The fact that an employee may receive some form of pension or retirement benefits in connection with his retirement from a job because of disability does not constitute retirement under La. Rev. Stat. 23:1221(3)(d)(iii). Where a worker has retired from a heavy work duty job but is still willing to take on light duty employment within the scope of the limitations imposed by his disabilities, then that worker is said not to have withdrawn from the workforce and is not considered to have retired under the statute. Here, the record provided reasonable evidence that claimant did not intend to completely retire from the workforce altogether.

This case also states that the award of a penalty and attorney fees was not unreasonable because an employer cannot ignore a medical finding by a treating physician and controvert benefits predicated on the fact that they question the doctor’s finding and need more information.

Hill v. Fresenius Medical Care NA, 50,291 (La. App. 2 Cir. 11/18/15)

When an employee receives, in addition to workers’ compensation benefits, benefits under another non-workers’ compensation disability plan funded by the employer, the employer is entitled to a credit for the benefits received by the employee from the separate disability plan. In the event that the claimant is required to make any reimbursements for the disability benefits in the future, at that time she may file a motion for modification based upon a change in conditions, pursuant to the provisions of La. Rev. Stat. 23:1310.8.

Barbier v. Kraft Foods, 2014-872 (La. App. 3 Cir. 2/4/15)

This case is important to show the calculation of average weekly wage with a confusing pre-injury wage statement. The Third Circuit affirmed WCJ’s decision finding that claimant, a sales representative for Kraft Foods, was a salaried rather than an hourly employee, despite the fact that her pay stub reflected hourly wages. The court stated: “In the present case, the record, specifically Ms. Barbier’s check stubs, supports the WCJ’s determination that Ms. Barbier was a salaried employee earning $36,417.00 per year. As such, the minimum amount that she would receive per week was $700.33. This amount was owed to Ms. Barbier even if she worked less than forty hours in any given week. Additionally, Ms. Barbier’s annual salary included payment for time that she was not working for holidays, vacation, and sick leave. The fact that her pay is expressed in hourly terms on her pay stubs does not negate her status as a salaried employee.”

McCoy v. W.A. Kendall & Co., Inc., 2015 WL 7566288 (La. App. 2 Cir. 11/25/15)

The defendants appealed the judgment of the workers’ compensation judge, Brenda Irving Jones, awarding Supplemental Earnings Benefits (SEB). The claimant was cutting a tree when it fell over onto another tree and hit his head. He received treatment for headaches, neck pain, and a skull fracture. The claimant’s treating physician disagreed with the results of a Functional Capacity Evaluation and opined that the claimant could not perform heavy duty, climb tress, or perform extensive activities above shoulder level. The employer offered him a position and the claimant did not respond to same, which led to the termination of benefits.

The Second Circuit Court of appeal found that when the employer offered a position to the claimant, he had not yet been fully released to work by his doctors and there was no way of knowing whether the job offered was suitable. At that time, the doctors were still reviewing the Functional Capacity Evaluation, with which his physicians ultimately disagreed. When the claimant was finally released to work and given clear restrictions, the claimant contacted the employer about a specific position, which the employer rejected. Therefore, the Court of Appeal held that the employer did not have suitable work within the claimant’s restrictions and the claimant was entitled to Supplemental Earnings Benefits.

Clavier v. Coburn Supply Co., 2014-2503 (La. 3/6/15)

This case deals with a hot topic in Louisiana regarding whether the employer or claimant has the right to choose certain facilities for treatment. In this case the issue was who had the right to choose a FCE facility. The Supreme Court denied claimant’s writ application for review of a decision allowing employer to select the facility for an FCE recommended by SMO physician. It is important to note that three of the five justices dissented and would have granted the writ and reversed at the appellate court. We have not seen the end of this issue.

Edwards v. Se. Freight Lines, Inc., 2014-871 (La. App. 3 Cir. 2/4/15)

This is a case granting dismissal for fraud. The Third Circuit affirmed workers’ compensation judge’s grant of the employer’s motion for summary judgment based on 1208 fraud. Claimant allegedly injured his back and legs while unloading a steel beam at work. He denied prior back problems to physicians and in a recorded statement to the insurer. Subsequent discovery showed multiple prior accidents including treatment up to the day before the alleged work accident. The WCJ granted summary judgment and the court of appeal affirmed, stating that the evidence overwhelmingly shows prior accidents, injuries, pain, and treatment involving Mr. Edwards’ low back and neck, which he repeatedly denied. The trial court judgment did not address restitution and the court of appeal declined to award such, noting that any benefits paid to the claimant were minimal.

Buchanan v. LUBA Workers’ Comp., 2014-1000 (La. App. 3 Cir. 2/4/15)

This claim provides for an award of penalties and attorney fees after the claimant proved he aggravated a pre-existing condition. The Third Circuit affirmed WCJ’s award of benefits, $8,000 penalties, and $12,625 attorney fees. Claimant, who had a prior rotator cuff surgery, injured her shoulder when a section of duct work fell a few inches and struck her.

A co-worker verified the incident but not claimant’s report of immediate pain. Claimant reported the incident immediately to supervisors because she was aware of a co-worker who failed to do so and had problems with his claim. The supervisors testified that claimant denied any injury and refused treatment. Conversely, claimant said she did not seek treatment because the supervisors told her she did not qualify for workers’ compensation. Claimant worked three more days until the job was completed and she was laid off. She did not seek treatment for over three months, again allegedly because the supervisors told her the injury was not compensable. Her orthopedist diagnosed cervical disc and rotator cuff injuries. An IME diagnosed a contusion but said he could not claimant was not injured in the accident to any degree of medical certainty. A third orthopedist concluded that the incident did not cause any injury or aggravation, and a bio-mechanical expert retained by the defendant agreed.

The WCJ concluded that claimant proved a compensable aggravation of her pre-existing shoulder injury and awarded medical and indemnity benefits, along with $8,000 in penalties and $12,625 in attorney fees. The appellate court affirmed, finding no manifest error.

Loucious v. Crest Indus., 2015-690 (La. App. 3 Cir. 12/16/15)

This case is discusses the proper form of medical evidence to prove accident, injury, and disability. The Third Circuit found that an attorney-prepared report signed by a physician was not “competent evidence” for purposes of defeating summary judgment. Claimant alleged that he developed compartment syndrome in his right arm less than two months after defendant hired him as a welder. The employer filed a motion for summary judgment asserting that the employer could not rebut the statutory presumption against causation. Claimant filed an opposition including a medical record prepared by his attorney in which a physician checked “yes” as to whether the condition was more probably than not related to the employment.

On appeal, the court noted that per statute, it was presumed that the employee’s condition was not related to his employment. Addressing the employee’s opposition, the court stated: “The document is not a certified copy of a medical report, a deposition, or an oral examination in open court, as is required to admit expert medical testimony into the workers’ compensation court. Moreover, it is not sworn. Thus, the document is not competent evidence and has no evidentiary value. Therefore, it cannot be considered in challenging Appellees’ motion for summary judgment.”