Newsletter for April 2016

Rabalais Unland, LLP

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.