For those that are attending, several attorneys from our firm will be attending the LASIE annual conference on November 2-4, 2016, in Lake Charles, Louisiana. If you are attending, please do not hesitate to say hello.
Rabalais Unland continues to offer our ‘Lunch and Learn” seminar into the Fall. 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
We welcome a new receptionist to our firm, Taylor Vining.
Congratulations to three attorneys in our office, who have all had new children. Congrats to:
Jonathan Landry
Joshua Couvillion
Chase Boeneke
Anniversaries:
Gabriel Thompson (8 years)
Jennifer Rodrigue (9 years)
Kristin Lusk (8 years)
Korica Tyler (4 years)
LOUISIANA WORKERS’ COMP NEWS
The Louisiana Workers’ Compensation Advisory Council’s next meeting is scheduled for November 17, 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.
The inaugural meeting of the Louisiana Commission on Preventing Opioid Abuse was held yesterday at the Department of Health in Baton Rouge. The Commission is the result of HCR 113, a resolution passed in the last regular legislative session.
Catrice Johnson-Reid was recently appointed Division Judge in the New Orleans Workers’ Compensation Court (District 08).
LOUISIANA LEGISLATIVE CHANGES ON WORKERS’ COMPENSATION ADJUSTER LICENSING
As a reminder:
LDI will begin issuing workers’ compensation authority on claims adjuster licenses. The licensing exemption for workers’ compensation will remain in place until August 1, 2017. This will give persons who have been adjusting workers’ compensation claims without being required to hold a license one year to obtain the new license.
Individuals who have three years’ experience adjusting workers’ compensation claims within the past five years may apply for a waiver of the exam. Waiver applications will be accepted until August 1, 2017.
The application for the waiver can be located at:
https://www.ldi.la.gov/docs/default-source/documents/licensing/producers/wc-waiver.pdf?sfvrsn=0
RECENT CHANGES IN THE LONGSHORE AND HARBOR WORKERS’ COMPENSATION ACT
The Department of Labor has announced an increase in Penalties under the Longshore Harbor Workers’ Compensation Act.
Section 14(g) of the LHWCA: Failure to Report Termination of Payments (LS-208).
– The penalty amount has increased from $110 to $275 in accordance with 20 C.F.R. Section 702.236.
Section 30(e) of the LHWCA: Penalty for Late Report of Injury or Death (LS-202).
– The maximum penalty has increased from $11,000 to $22,587 in accordance with 20 C.F. R. Section 702.204.
Graduated penalty schedule as of August 1, 2016:
1st late report: $500
2nd late report: $1,000
3rd late report: $2,000
4th late report: $4,000
5th late report: $8,000
6th late report: $16,000
7th late report and above: $22,587 (statutory maximum)
Section 49 of the LHWCA: Discrimination Against Employees Who Bring Proceedings.
– The penalty amount has increased from a $1,000 minimum and a $5,000 max to a $2,259 minimum and $11,293 maximum in accordance with 20 C.F.R. Section 702.271(a)(2)
RECENT LOUISIANA WORKERS’ COMPENSATION CASES
Southern Framers of Louisiana, LLC v. Doctors Hospital of Slidell, d.b.a. Sterling Surgical Hospital, 15-CA- 1878 (La. App. 1 Cir. 8/31/16)
This claim involves a dispute over payment of medical bills. The claimant injured his left shoulder in the course and scope of his employment with Southern Framers of Louisiana. He underwent left shoulder surgery which was performed in an outpatient setting at Doctors Hospital of Slidell, d.b.a. Sterling Surgical Hospital. The Hospital submitted a bill to the employer’s third party administrator for $33,133.41. The Carrier paid $8,887.80 as a “reasonable reimbursement for services performed by the Hospital.” In response, the Hospital filed for administrative review in accordance with LA. Administrative Code, Title 40, pt. I, § 5149, claiming an underpayment.
Instead of responding to the claim for underpayment, the Employer/Carrier filed a “LWC-WC-1008/Disputed Claim for Compensation” directly with the OWC alleging that the unpaid portion of the Hospital’s bill was unreasonable. The Employer/Carrier also asserted a claim for reimbursement for overpayment of the previously paid bill. In response, the Hospital filed objections of prematurity, nonconformity of the petition, vagueness, ambiguity, no cause of action, and no right of action.
The OWC heard oral argument on the Hospital’s preliminary objections and sustained the prematurity argument. The OWC concluded that the Employer/Carrier failed to follow the administrative remedies outlined in Title 40 of the Louisiana Administrative Code. The Employer/Carrier appealed to the First Circuit Court of Appeal.
The Court of Appeal ruled that the Employer/Carrier’s right to judicial review of medical payments is premature until exhaustion of the administrative procedure. The Appellate Court opined that, while an employer/carrier has no independent entitlement to seek judicial review, the Hospital, as a medical provider, does have the right. In this case, the Hospital involved its right to utilize the required administrative process to determine the adequacy of the employer/carrier’s payment, and it would thwart that process if the employer/carrier could proceed with its own action prior to completion of administrative review. The Appellate Court added that resolution of the claims in the administrative proceedings could potentially resolve all pending issues between the parties, including the employer/carrier’s claims. The lower court’s ruling was affirmed.
LFI Fort Pierce, Inc. v. Acme Steel Buildings, Inc., 16-71 (La. App. 3 Cir. 8/17/16)
This claim involves a tort lawsuit, whereby a staffing agency and its workers’ compensation insurer sued an alleged statutory employer and liability insurer in tort and in contract, seeking reimbursement for workers’ compensation benefits paid, or to be paid, to an injured employee.
The statutory employer, Acme, filed for summary judgment on the basis that as “statutory employer” it is immune from the tort claim asserted against it. Acme also sought to dismiss the staffing company’s contract claims asserting there was no viable basis for the claims and/or that any indemnity language in the contract was inapplicable. The trial court rendered judgment in favor of Acme and dismissed the staffing company’s claims. An appeal was brought by the staffing company.
The Appellate Court first opined that there was no written contract between the parties that specifically lists Acme as a “statutory employer.” The Appellate Court reviewed multiple contracts between these parties and the general contractor who owned and operated the job site where the work took place. After reviewing the contracts, the Appellate Court found that there was an “issue of material fact” as to whether Acme is a statutory employer under La.R.S. 23:1061(A)(2), and that summary judgment was improper.
Editor’s Note: This case involves a complicated issue in Louisiana, whereby the liability for workers’ compensation benefits depends on the type of work performed, contracts to perform the work, and different classifications of employers performing the work. We could spend a lot of time discussing the “statutory employer” provisions in the Louisiana Workers’ Compensation Act.
I encourage everyone to review this case.
Verges v. Amtrust North America Community Leaders Advocacy for Success, 2016-CA-0203 (La. App. 4 Cir. 8/31/16)
This claim involves whether the Office of Workers’ Compensation has subject matter jurisdiction to award assault pay pursuant to La. Rev. Stat. 17:1201(c). The employee was allegedly attacked and injured by a seven year old autistic boy while she was in the course and scope of her employment as a special education teacher. The workers’ compensation insurer denied the employee’s claim for workers’ compensation benefits and the employee then filed a LWC-WC-1008/Disputed Claim for Compensation, seeking workers’ compensation benefits. The Office of Workers’ Compensation Judge ruled at Trial in favor of the employee an awarded workers’ compensation benefits, assault pay, plus $8,000 in penalties and $15,000 in attorney fees. An appeal ensued.
The Appellate Court affirmed the lower court’s judgment as to payment of workers’ compensation benefits, penalties and attorney fees. The Appellate Court, however, found that the lower court erred in awarding assault pay, because it did not have subject matter jurisdiction to do so. The Appellate Court reasoned that, unless a remedy is specifically provided for in the workers’ compensation statutes, then it has no subject matter jurisdiction to make decisions regarding same. La.R.S. 17:1201 falls under Title 17, which governs education. Claims for assault pay must be brought in Judicial District Court.
Sislo v. New Orleans Center for Creative Arts (NOCCA), 16-CA-178 (La. App. 4 Cir. 8/17/16)
In this case, the employee appealed a judgment from the Office of Workers’ Compensation, which granted summary judgment in favor of the employer, and dismissing the employee’s claim for benefits. The employee alleged that he was exposed to airborne construction debris wafting into the employer’s parking lot from sandblasting and waterproofing work being performed at a neighboring building. The employee was hospitalized after the construction began for an exacerbation of a pre-existing lung condition.
The employer filed for summary judgment arguing that (1) all of the exposure occurred in the parking lot before her work duties began or after her work duties ended; and (2) the risk from which her injury resulted was no greater for the employee than it was for a non-employee or other member of the public. In turn, the employee filed her own summary judgment arguing that she was entitled to benefits because the parking ot was owned and operated by the employer and within the building where her office was located. The Workers’ Compensation Judge denied the employee’s motion and granted the employer’s motion. An appeal ensued.
The Appellate Court reversed. It found that NOCCA has not shown, with undisputed facts, that the public was equally susceptible to the risk of dust exposure or that the airborne dust the employee encountered was a risk encountered everywhere independent of location. The Appellate Court added that multiple courts have found course and scope of employment for accidents occurring on the employer’s parking lot, and that, in light of the “no-fault” doctrine workers’ compensation scheme, it is not necessary to consider whether the risk encountered on the employer’s premises be the employer’s “fault” in order for an accident to be compensable. The Appellate Court held that an employee on the employer’s premises must encounter the risk “to a greater extent and frequency than the general public,” citing, Bosse v. Westinghouse Elec., Inc., 637 So.2d 1157 (La. App. 4 Cir. 5/17/94)