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.