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.