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.