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.”