April 1, 2021

2021 Q1 Law Review

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A summary of cases that involve issues that arose under the Louisiana Workers’ Compensation Act and were decided by the Courts during the first quarter of 2021. This summary was prepared for your review by an LWCC in-house attorney and is not intended to be legal advice.

Alphonso v. Exxon Mobil (La. 3/2/21) 2021 WL 791051

This was a decision by the Louisiana Supreme Court to deny the Defendants’ Writ Application. Although the application was denied, Judge Crichton opined that he would accept the Writ Application and assigned reasons.  Apparently the Writ Application resulted from the imposition of penalties and attorney’s fees (pursuant to La. R.S. 23:1201) against the Defendants for controverting the claimant’s assertion that his second knee injury (an injury that occurred at home after his work accident) was a result of his work injury.  Judge Crichton cites several cases dealing with whether an employer/insurer reasonably controverted a claim and emphasized the penal nature of 23:1201 which requires that statute to be strictly construed.


Judge Crichton states that in order to impose penalties and fees, the Court must ascertain whether the employer or his insurer engaged in a non-frivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant.


Zinn v. Zagis, USA, LLC (La. 3/2/21) 2021 WL 794088

This was a decision by the Louisiana Supreme Court to deny the Defendant’s Writ Application.  Although the application was denied, Judge Weimer and Judge Crichton opined that they would accept the Writ Application and Judge Crichton assigned reasons. This case dealt with the imposition of penalties and fees pursuant to La. R.S. 23:1201.  In this the parties to the workers’ compensation claim reached a full and final settlement that was approved by the OWC.  Three days after the settlement was approved, the Defendants tendered the settlement check(s).  The settlement check(s) contained language deemed to be conditional. The claimant and his attorney held on the checks until the expiration of thirty days and then asserted the settlement funds had not been tendered timely. The lower courts agreed with the claimant and the Defendant was cast with penalties and fees. 


Judge Crichton emphasized the penal nature of 23:1201 and said that it must be strictly construed.  He also said the conditional language on the settlement check(s) appeared to be inadvertent and thus he did not find any evidence of arbitrary conduct by the Defendant. Judge Crichton further went on to state that such rulings would allow claimant’s to “game the system” and that it is not the purpose of the Workers’ Compensation Act to “catch” purported bad actor employers and abuse the regime meant to help injured employees ultimately return to the workforce.


Hartman v. St. Bernard Parish Fire Department & FARA (La. 3/24/21) 2021 WL 1115358

In this case a firefighter was seeking permanent partial disability benefits under 23:1221(4)(p) for hearing loss he had suffered during his time as a firefighter. The parties stipulated to facts indicating that the claimant was diagnosed throughout the years with increasing hearing loss due to repeated exposure to loud noises for extended periods of time. 23:1221(4)(p) however says that the hearing loss must be “solely due to a single traumatic accident.”


The claimant cited a previous Supreme Court case, Arrant, where it was held that gradual noise induced hearing loss caused by occupational exposure to hazardous noise levels is a personal injury by accident or an occupational disease, or both, under the comp act.  This holding was based on the pre-1990 definitions of accident and injury/personal injuries and the expert testimony indicating there was an immediate injury to the inner ear, even though the effect of the damage only gradually became perceptible.  Using this rationale, the claimant argued in this case that 23:1221(4)(p) does apply because he sustained an immediate injury or single traumatic accident from each exposure to loud noise.


The Supreme Court rejected the claimant’s argument and instead relied on the plain wording of 23:1221(4)(p) and applied it to the evidence in this case that concluded “Mr. Hartman’s repeated exposures to loud noises for extended periods of time is likely a contributing factor in his bilateral sensorineural hearing loss.”  Obviously, said the Court, “’repeated exposure’ is not synonymous with a single exposure; neither is a ‘contributing factor’ synonymous with a ‘sole’ one.”  Thus, the Court concluded that the claimant was disqualified from indemnity benefits under 23:1221(4)(p).​​​​​​​


Rowland v. BASF (La. App. 1st Cir. 3/29/21) 2021 WL 1170326

The plaintiff in this action brought a workers’ compensation claim for death benefits on 12/26/18 (her husband had passed away from asbestosis on 7/27/18 – an occupational disease).  La. R.S. 23:1031.1 is the occupational disease statute and subsection E lays out the prescriptive period for filing a claim for workers’ compensation benefits.  Subsection F of 23:1031.1 then says that a claim for death benefits are barred unless brought within one year from the death of the employee.


The Defendant filed an Exception of Prescription and argued that because the husband’s right to seek workers’ compensation benefits was prescribed under subsection “E”, then his wife’s ability to seek death benefits was also prescribed.  In support of this position the Defendant cited cases dealing with family members seeking death benefits after a claimant had settled his/her comp claim.  BASF also relied on La. R.S. 23:1231(A) which says a claim for death benefits only arises if the claimant dies within two years from his/her last day of treatment, and that the plaintiff did not bring her claim within two years of the claimant’s last day of treatment.  The OWC granted the exception leading to this appeal.


The 1st Circuit held that 23:1231(A) was not a prescriptive statute for death benefits but was a condition precedent to the accrual of a right, meaning the right to seek death benefits only comes into existence if the worker dies within two years of his/her last treatment.  If so, then the person seeking death benefits then has one year from the workers’ date of death to seek death benefits as per 23:1031.1(F).  As the Plaintiff filed within one year from the workers’ death, the 1st Circuit reversed the OWC Judgment and remanded for evidence to determine if the worker died within two years after his last treatment.


Maynard v. Musson Patout Automotive Group (La. App. 3rd Cir. 1/27/21); 2021 WL 265779

The claimant injured his neck and back due to an automobile accident and was treating with Dr. Sledge.  A 1010 was submitted for a two level lumbar fusion which was initially denied by the Defendant’s TPA as no psych evaluation had been performed pursuant to the Medical Guidelines.  Once the psych evaluation was complete, Dr. Sledge once again sent in a 1010 for the lumbar surgery.  The defendant’s TPA’s Utilization Review Company initially approved the surgery but the TPA then rescinded the approval pending a doctor conference.  The rescission was due to an SMO report from Dr. Broussard who said the claimant was not a surgical candidate as his pain was controllable with medication and there was no documented evidence of radiculopathy.  The Defendant then filed a 1008 and requested the appointment of an IME.


The Court appointed Dr. Butaud who examined the claimant and said that it was not clear whether the claimant’s leg pain was coming from his back or his hip.  Dr. Butuad recommended a hip injection first and then back surgery if the injection did not offer any relief. 


The claimant filed his own 1008 due the denial of the lumbar surgery recommended by Dr. Sledge and which was approved by the Medical Director. Both the OWC Judge and the 4th Circuit ruled that the Defendant was unreasonable in relying on the SMO and the IME for not approving the surgery as neither doctor addressed the medical guidelines concerning whether the surgery was reasonable and necessary and because the Defendant did not appeal the Medical Director’s decision.


Gotreaux v. Quick Turn Merchandising (La. App. 3rd Cir. 3/17/21); 2021 WL1014578

The claimant in this matter was treating with Dr. McDonnell who had requested a thoracic spinal fusion. This surgery was denied by the Defendant on the grounds that the claimant lacked segmental instability. Dr. McDonnell filed a 1009 with the Medical Director. The Medical Director upheld the denial and the claimant filed an Appeal with District 04. The OWC Judge ruled that the medical guidelines do not cover thoracic spine treatment, thus he had to look to the guidelines on the lumbar spine. Further, it must be shown by clear and convincing evidence that the medical director was incorrect. As Dr. McDonnell agreed in his deposition that the claimant did not have segmental instability and that is why the Medical Director denied the surgery, then the OWC Judge refused to overturn the medical director. The claimant appealed this decision and 3rd Circuit remanded the case back to District 04 for the Judge to address the other guidelines (besides the segmental instability).


On remand, the OWC Judge pointed out the other lumbar guidelines that would support a fusion surgery which the claimant did not meet and once again refused to overturn the Medical Director’s decision. The claimant appealed to the 3rd Circuit again who ruled the OWC Judge committed manifest error as the claimant did meet other criteria under the lumbar guidelines and because they felt the claimant provided evidence that a variance from the guidelines was appropriate.


Jones v. Progressive Baptist Church of Louisiana (La. App. 3rd Cir. 3/31/21) 2021 WL1206384

The claimant in this case slipped and fell injuring her right knee on 3/12/16. Treatment for the claimant’s right knee was approved and two months later the claimant began complaining of pain in her left hip and requested treatment of her low back. Treatment for the low back was denied by the Defendant as not being related to the claimant’s work accident. The claimant apparently treated on her own and underwent a discectomy at L5-S1.  Afterwards the claimant filed a 1008 on 3/9/18 for nonpayment of medical benefits relating to her lumbar spine and later amended the 1008 on 9/20/18 for nonpayment of indemnity


After the amendment to the 1008, the Defendant filed an exception of prescription regarding the indemnity benefits as it had been longer than a year since the work accident. In opposition the claimant argued that she was paid wages in lieu of comp and did not work. At the hearing the witnesses (employees of Defendant subpoenaed by the claimant) did not show up and the OWC Judge used the assumption that their testimony would have been adverse to the Defendant (since they were the Defendant’s employees) and denied the Exception. At the trial the OWC Judge held that the claimant failed to meet her burden that her lumbar spine was injured in the work accident and the Judge also reconsidered the exception of prescription and sustained the exception.


On Appeal the 3rd Circuit held that the Judge was within her right to reconsider the Exception of prescription and that the Judge did not commit manifest error when concluding the claimant failed to meet her burden of proof concerning her lumbar spine. The claimant did not introduce any evidence linking her lumbar injury to the work accident while the Defendant had an SMO doctor who opined that her lumbar problem was a degenerative condition and not related to the work accident.


Lavigne v. Ochsner Clinic Foundation (La. App. 5th Cir. 2/24/21) 2021 WL 713940

The claimant in this matter filed a 1008 for the defendant’s failure to authorize a laminectomy surgery which had been approved by the Medical Director. After a trial of the matter, Judge Bishop signed a Judgment finding that the claimant did not meet her burden to show that she was entitled to the surgery. However the Judgment also indicated the Court would appoint an IME to provide an opinion on the surgery based on the medical treatment guidelines as well as whether the procedure was reasonable and necessary in light of the claimant’s overall medical condition. The claimant then appealed to the 5th Circuit.


The 5th Circuit ruled that the Judgment issued by Judge Bishop was not a final, appealable judgment (per La. C.C.P. Art. 2083 or La. R.S. 23:1310.5), and the appeal was dismissed for lack of jurisdiction and the OWC was instructed to move forward with the IME (or not) and then render a final judgment.​​​​​​​


Moya v. Lucas (La. App. 5th Cir. 3/24/21) 2021 WL 1114293

The claimant in this case fell from a roof and injured his back which required two surgeries. He thereafter filed a 1008 against Mr. Lucas (who did not have comp insurance). Mr. Lucas testified that he normally worked alone and would only call the claimant if he needed help. At trial the OWC held that the claimant was an employee of the Defendant and ordered the Defendant to pay all the past and future medicals. The Court also held that the claimant failed to meet his burden of proof that he was entitled to TTD or SEB benefits.


The claimant filed an appeal over the denial of indemnity benefits. On Appeal the 5th Circuit held that the OWC Judge (Bishop) did not commit manifest error regarding the TTD issue as the testimony and evidence did not establish (by clear and convincing evidence) that Mr. Moya was unable to perform any work or engage in any type of employment. As for SEBS, the 5th Circuit held that “an employee’s testimony that he can no longer return to his pre-injury employment, without more, is insufficient to prove entitlement to SEBs.” In this instance the medical records supplied by the claimant never addressed work status and the simple fact that he was unemployed at the time of trial or unable to obtain the same type of job does not automatically shift the burden to the Defendant.


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