Author: Edward F. Stauss III

Louisiana Appellate Court Examines How Accidents are Defined under Louisiana Workers’ Compensation Law

04.10.2024

Generally, Louisiana Workers’ Compensation laws provide coverage for an employee who sustains personal injuries by an accident arising out of and in the course of his or her employment. La. R.S. 23:1021(1) defines “accident” as:

“An unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.”

In Rayborn, Sr. v. Continental Cement Company, LLC et al, the plaintiff-employee filed suit when the worker’s compensation carrier terminated benefits based on its assertion that the plaintiff’s left knee injury was not the result of an “accident” as defined in the statute. The evidence presented at trial established the following:

After returning home from work one day, the plaintiff began to feel soreness behind his left knee and believed he “may have pulled a muscle.”
The plaintiff sought medical attention at a local clinic 2 days later.
The plaintiff told clinic staff that his “leg was hurting,” and that he “was at work climbing up and jumping down off of barges all week.”
After returning from a pre-planned family trip one week later, the plaintiff told to his managers at work that he hurt his knee “some kind of way” and that he was “doing too much climbing up and jumping down from barges “and his knee “just started hurting.”
The chart from follow-up clinic visits stated, “Patient had [an] injury while at work when he jumped from a height and later that day felt a discomfort in the left lateral knee.”
Additional records noted the plaintiff “injured his knee on the job; however it was not readily apparent until [his] knee became stiff later that evening.”
The plaintiff later consulted with an orthopedic surgeon whose initial chart entry stated, “Over the course of the week, his knee began bothering him in the patellofemoral area and it started to become tight and swollen.”

At the conclusion of trial, the workers’ compensation court ruled that the plaintiff successfully proved that he sustained a work-related injury of his left knee on a particular date by climbing and jumping while performing his work duties. On appeal, the workers’ compensation carrier argued that plaintiff’s assertion that he was injured “some kind of way” over the course of a week was not sufficient to meet the requirement of a specific, identifiable accident in the course and scope of employment under La. R.S. 23:1021(1).

In affirming the decision of the OWC judge, the appellate court highlighted numerous opinions from the Louisiana Supreme Court and other courts of appeal wherein the statutory definition of “accident” was liberally construed to reject an interpretation that excluded “those workers who are worn down, rather than immediately crippled by, their work.” The opinion notes that it is well-settled in the case law that an “accident” exists when “heavy lifting or other strenuous efforts, although usual and customary, cause or contribute to a physical breakdown or accelerate its occurrence because of a pre-existing condition.”

The opinion added, “It is presumed the legislature is aware of how Louisiana courts have interpreted the statute; yet, it has taken no steps to overrule more than thirty years of Louisiana jurisprudence.” In so holding, it is unclear whether the court considered La. R.S. 23:1020.1(D), in which the Legislature specifically rejected the jurisprudential doctrine requiring a liberal interpretation of Workers Compensation statutes in favor of an employee. Despite this statement from the Legislature on the construction of Workers Compensation statutes, the Rayborn opinion suggests that courts may continue to base their decisions on the liberal interpretation of “accident” that has been developed and adopted by Louisiana courts when analyzing what types of injuries are covered under Louisiana Workers’ Compensation Law.

References:

Rayborn v. Cont’l Cement Co., LLC, 2023-0403 (La. App. 1 Cir. 1/10/24), 2024 WL 132802.

Employer Finds Safe Harbor for Mailing Benefits Timely

01.18.2023

When an employee is injured on the job and the employee’s request for workers’ compensation benefits is disputed, La. R.S. 23:1201.1 allows an employer to request a preliminary determination hearing (“PDH”) with the Office of Workers’ Compensation (“OWC”). If the workers’ compensation judge rules at the PDH that benefits are owed, the employer has ten days to comply with the judge’s ruling. The First Circuit recently ruled that an employer can find “safe harbor” if it technically complies with the rigorous deadlines of the statute, which if missed can have profound consequences, subjecting the employer to penalties and attorney fees.

In Kilbourne v. Dixon Correctional Institute, the court recently affirmed a ruling that found an employer complied with La. R.S. 23:1201.1 and could not be subject to penalties or attorney’s fees when it mailed the disputed workers compensation benefits within ten days of the judge’s ruling at the PDH. The ruling was affirmed even though the employee did not receive payment within ten days of the hearing.

The employer in Kilbourne stopped issuing weekly workers compensation benefits after two doctors found the claimant’s ongoing complaints were unrelated to the work accident and the claimant could return to full duty work. The employee then filed a disputed claim with the OWC and requested reinstatement of his benefits. He also requested an award of penalties and attorney’s fees because he claimed the employer’s suspension of indemnity benefits was arbitrary and capricious. The employer requested a PDH to address these issues.

The OWC judge issued a preliminary determination that although the employee was owed supplemental benefits from the date his payments of benefits stopped, the employer was not arbitrary and capricious in its decision to stop payment. Within ten days of the mailing of the PDH ruling, the employer issued and mailed benefit checks to the employee and filed a form with the OWC to provide notice the employer was paying the benefits. Nevertheless, the employee disagreed with the PDH ruling and the matter went to trial.

At trial, the employee argued that he should have received penalties, attorney fees, and interest on the back benefits paid after the PDH ruling. The employee argued the employer failed to comply with section 1201.1 because he did not receive the indemnity benefits until more than ten days after the PDH ruling. However, evidence showed the benefit payments were postmarked and mailed within ten days of the receipt of PDH ruling.

Accordingly, the trial court found that the employer was immune from an award of penalties and attorney fees pursuant to the “safe harbor” provision of section 1201.1. Interest also could not be owed on back pay when the employer complied with the statute. The First Circuit affirmed this decision on appeal. Although providing the claimant funds within 10 days of the PDH ruling remains the best practice for an employer, this ruling informs employers that they should find safe harbor from what could be significant penalties and attorney’s fees if they meet the technical requirements of the statute and mail their compliance with the judge’s ruling within ten days of the PDH.

Case Reference: Kilbourne v. Dixon Correctional Institute, 2022-0455,(La. App. 1 Cir. 11/4/22) ____So. 3d ___,2022 WL 16706951.

MVA Plaintiffs Sentenced by Federal Judge for Staging Accidents

07.13.2022

The United States Attorney for the Eastern District of Louisiana recently announced that two defendants, Doniesha Gibson and Erica Lee, had been sentenced for crimes related to staging automobile collisions with tractor-trailers. The sentences were announced as part of a criminal investigations known as “Operation Sideswipe.” The years-long operation has produced multiple pleas and convictions, including a guilty plea from an involved attorney last year.

Gibson admitted that she was a passenger in a staged accident that occurred on October 15, 2015. A co-defendant intentionally drove the vehicle she occupied into a bus on the interstate. Gibson retained an attorney and filed a suit for damages. Claims related to this accident later settled for $667,500.00

Lee also admitted to filing a suit to claim injuries after the driver of the vehicle she occupied intentionally crashed into a tractor trailer on September 6, 2017. The claims for this suit settled for $30,000.00

United States District Judge Sarah S. Vance sentenced Gibson to 17 months incarceration plus 3 years of supervised release and ordered Gibson to pay restitution in the amount of the settlement. Lee was sentenced to serve 3 years of probation and 100 hours of community service. She was also ordered to pay restitution.

While “Operation Sideswipe” did not involve the typical claimants, it reminds of the need for vigilance in assessing accident claims.

Workers’ Comp: “Failure to Answer” Results in Forfeiture of Benefits

10.01.2021

A worker’s benefits may be forfeited if the employee is untruthful on a medical questionnaire (if the misrepresentations directly relate to the alleged injury) or prejudices the employer’s ability to recovery from the “Louisiana Second Injury Fund.” La. R.S. 23:1208.1 Some Louisiana courts have shown reluctance to deny workers’ compensation benefits based on the employee’s alleged failure to truthfully answer a medical history questionnaire. However, the court in Spillman v. Career Adventures, Inc., — So.3d —- 2021 (La. App. 2d Cir. 8/11/21), 2021 WL 3523959, held that benefits were forfeited because the claimant provided false responses to several medical history questions and failed to answer a number of specific questions on a post-hire medical history questionnaire provided by his employer.

At trial, it was established that Spillman had pre-incident medical conditions to include: 1) injuries related to a 2007 work-related accident; 2) regional sympathetic dystrophy of the left foot; 3) COPD; 4) chronic pain from a gunshot wound in his left leg; 5) surgery to the AC joint of his right shoulder; 6) injuries from a 2018 motor vehicle accident to the right shoulder and right knee; 7) anxiety; 8) bipolar disorder; and 9) many other ailments.

Like many other employers, Spillman’s employer Career Adventures included with its employment packet a “Office of Workers’ Compensation Second Injury Board Questionnaire.” Spillman failed to truthfully complete this questionnaire and checked “no” to specific questions which asked if he had experienced many of his known conditions such as COPD and bipolar disorder. Although Spillman took the time to respond to numerous “fill in the blank” questions, he purposefully skipped at least 10 inquiries.

Eleven months after hire, Spillman alleged he was injured at work while performing his duties as a welder. At trial, Spillman’s family physician identified a torn tendon in the left elbow as a work-related injury. He further testified that the tendon injury limited his activities and merged with his pre-existing injuries to create a greater total disability. The workers’ compensation judge (“WCJ”) ruled that Spillman violated La. 23:1208.1 by failing to truthfully answer certain questions. The Second Circuit “went further” in affirming the workers’ compensation judge, stating:

“We go further than the WCJ. All information which would have been disclosed had Mr. Spillman truthfully answered each and every question on the preemployment questionnaire must be considered …”

Therefore, the appellate court in Spillman found that both false answers and a failure to answer certain questions can qualify as a willful misrepresentation sufficient to cause a forfeiture of benefits under La. R.S. 23:1208.1 under certain circumstances.

Worker’s Comp Death Benefits Claim Survives Dismissal

04.23.2021

In Rowland v. BASF, 20- 278 (La. App. 1 Cir. 3/29/21), 2021 WL 1170326, the Louisiana First Circuit Court of Appeal ruled that a claim for death benefits filed by a widow whose husband died from an occupational disease was not prescribed, even though her deceased husband’s claim for workers’ compensation benefits would have been time-barred.

The claimant’s husband was exposed to asbestos from 1969 to 1989 while working for BASF. He was diagnosed with occupationally-related asbestos in 2001 and passed away on July 27, 2018. A claim for Workers’ compensation death benefits against BASF was filed on December 26, 2018.

BASF filed an “Exception of Prescription &/or Motion for Summary Judgment” and argued the widow’s claim was derivative of her husband’s cause of action. BASF contended that, because the employee’s claim would have been prescribed, her claim for death benefits also prescribed. In response, the claimant argued suit was timely because it was filed within one year of the employee’s death as required by La. R.S. 23:1031.1(F). The Worker’s compensation trial judge granted the exception of prescription.

The First Circuit reversed, accepting the claimant’s argument that the claim was timely because it was filed within one year of death. The court rejected BASF’s argument that the death benefit claim could be pursued only if the deceased husband had filed a Worker’s comp claim prior to his death.

In support of dismissal, BASF also cited La. R.S. 23:1231(A), which provides there is no right of action to pursue death benefits if the claim is not filed within two years of the employee’s last treatment. However, the Rowland court did not address this issue because BASF had not filed an Exception of No Right of Action and did not factually establish when the deceased employee last received treatment for asbestos. Moving forward, the viability of the claim will depend upon whether her husband died within two years of the last treatment related to the occupational disease.

Summary Judgment Dismissing Unwitnessed Workers’ Comp Accident Affirmed: No Corroborating Evidence

10.19.2020

The recent decision in Gibson v. Wal-Mart Louisiana, LLC, 20-0033 (La. App. 4 Cir. 8/27/20), 2020 WL 507804 re-affirms that a workers’ compensation claim based on an unwitnessed accident is subject to pretrial dismissal where there is no corroborating evidence.

In Gibson, the plaintiff, a department manager for Walmart, claimed injury while picking up boxes. Although no one witnessed the incident, the plaintiff claimed that two managers working nearby were made aware of the accident and injuries almost immediately.

Walmart denied the claim in response to numerous “red flags.” For example, the two managers identified by the claimant denied any knowledge. Also, the first reference in a medical record to the alleged June accident came in mid-October.

Walmart filed a motion for summary judgment arguing that plaintiff did not satisfy her evidentiary burden. In response, Gibson countered that the conflict between her testimony, the co-workers’ testimony, and the medical records created genuine issues of material fact to be decided at trial. The OWC trial court granted summary judgment and the plaintiff appealed.

In affirming the dismissal, the Fourth Circuit Court determined that Gibson’s testimony, standing alone, did not create a genuine issue of material fact. The general rule regarding unwitnessed accidents in worker’s compensation cases is well defined. Under this rule, an employee may prove by his or her testimony alone that an unwitnessed accident occurred only if the employee can establish that: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Ardoin v. Firestone Polymers, L.L.C., 10-0245 (La. 1/19/11), 56 So. 3d 215, 218.

Because evidence such as the delay in medical treatment raised doubt and Gibson lacked other corroboration, the dismissal of her claim was upheld. Gibson reminds that questionable unwitnessed accident claims without corroborating evidence can and should be dismissed via pretrial motion, notwithstanding the “relaxed rules of evidence and procedure” in workers’ compensation courts.

Ed Stauss is a partner with Keogh Cox. His practice relates mainly to workers compensation defense and the subrogation recovery. Ed is an avid and long time fan of the professional and major college sports teams in the area. He also enjoys running year-round, from 2 milers & 5Ks in the spring and summer to half marathons and full marathons in the fall and winter.

Subcontractor’s Status as Plaintiff’s “Two-Contract” Statutory Employer Establishes Owner’s Immunity

06.17.2020

In Louisiana, a “statutory employer” is entitled to protection from tort suit. With limited exceptions, the defense must be supported by a contractual provision declaring the defendant to be a statutory employer in a manner consistent with La. RS 23:1061. In Spears v. Exxon Mobil Corporation & Turner Industries Group, LLC, 2019-0309, 291 So. 3d 1087 (La. App. 1^st Cir. 2019), the defendant-premises owner successfully asserted the defense, notwithstanding multiple issues with respect to the nature and terms of the agreement and an alleged lack of privity with the plaintiff’s immediate employer.

In Spears, the plaintiff was injured when he slipped and fell on the production floor at the Exxon plastics plant. Spears filed suit against multiple parties, including Exxon, alleging it failed to provide a safe premises. The plaintiff worked for Poly Trucking who operated at Exxon under a contract with Polly-America. Poly-America, LP and Exxon, in turn, were signatories to an agreement entitled “STANDARD PURCHASE ORDER” which stated that Polly-America was to:

“… provide pickup/delivery service… For all containers of Polyethylene scrap as well as Polyethylene’s scrap recovery vacuum service for a quoted amount of one dollar.”

The “STANDARD PURCHASE ORDER” also contained a section expressly recognizing Exxon:

“… as the statutory employer of employees of Poly America and subcontractors while such employees are engaged in the contracted work.”

Exxon filed a motion for summary judgment based upon its status as Spears’ statutory employer. The Trial Court granted the motion and dismissed Exxon with prejudice. On appeal, Spears argued that the contract between Exxon and Poly-America presented multiple issues of fact and law which necessitated a reversal of the summary judgment. The issues identified by the plaintiff included the following:

The agreement upon which Exxon relied was a “Contract of Sale,” not a “Contract for Services;”
The agreement specified that the signatory contractor (Poly America) was an “Independent Contractor;”
The plaintiff’s immediate employer (Poly Trucking) was neither a signatory to, nor specifically identified anywhere in the agreement; and,
Although the agreement designated Exxon as the statutory employer of the “employees of Poly America,” Exxon is not specifically designated as the statutory employer of the employees of Poly Trucking, the plaintiff’s immediate employer.

The First Circuit Court of Appeal expressly rejected each of the plaintiff’s arguments.

First, the Court pointed out that the law does not mandate that the contract containing the statutory employment language be of any particular type. As such, whether the contract was considered a contract of sale or for services was irrelevant.

Secondly, the Court rejected the claim that contractual language describing Exxon as an “independent contractor” required a rejection of the statutory defense. The Spears Court reasoned that nothing in La. RS 23:1061 prevents an independent contractor from entering into a written agreement whereby the principal to that contract is recognized as the statutory employer of the employees of the contractor and its subcontractors.

Finally, the Court rejected the claim the defense should be rejected because the plaintiff’s immediate employer was not a party to the contract. As discussed in Spears, the law provides that the contract establishing statutory employment can be with either the plaintiff’s immediate employer or the plaintiff’s statutory employer, and Poly America qualified as the plaintiff’s statutory employer under the “two contract” theory because the work that Poly America subcontracted to the plaintiff’s immediate employer (Poly Trucking) was included within Poly America’s “STANDARD PURCHASE ORDER” contract with Exxon.

The Spears opinion highlights that the statutory defense should be maintained, even under unusual facts, when the requirements of La. RS 23:1061 are satisfied.

Is Timing Everything Where Workers Compensation Benefits are Forfeited Based on Fraud? It Depends…

02.28.2020

In Moran v. Rouse’s Enterprises, LLC, 19-2392019(La. App.5 Cir. 12/26/19)- – – So. 3d – – -, the Louisiana Fifth Circuit held that there is a forfeiture of all benefits when a worker’s compensation claimant commits fraud, regardless of when the fraudulent conduct occurs. The court declined to follow opinions from the First and Third Circuits concluding otherwise.

In Moran, the claimant obtained treatment for injuries to her back, right knee, and right shoulder after a slip and fall at work for Rouses supermarket. In her deposition, the claimant Moran testified that she experienced knee pain only once before her fall; it was “years ago” and not “serious.” Moran also claimed that she experienced no prior shoulder or back pain. However, medical records established:

• Complaints of knee pain on at least 8 separate occasions between 2012 and the job injury;

• Complaints of right knee, right wrist, and back pain after a slip and fall in 2013; and

• A right shoulder impingement diagnosis 2 months before the on-the-job accident.

Rouses and its workers compensation carrier affirmatively alleged a violation of La. R.S. 23:1208, Louisiana’s workers compensation fraud statute, following the claimant’s deposition. Paragraphs “A” and “E” of section 1208 provide in pertinent part:

A. It shall be unlawful for any person… to willfully make a false statement or representation… for the purpose of obtaining or defeating any benefit or payment under…this Chapter.

***

E. Any employee violating this Section shall… forfeit any right to compensation benefits under this Chapter.

As part of their fraud defense, the defendants specifically denied responsibility for all worker’s compensation benefits, i.e. benefits that that might have otherwise been due both before and after the fraudulent deposition testimony.

Following trial, the workers compensation judge determined that Moran carried her burden of proving the occurrence of on-the-job injury and disability. Nevertheless, the trial court also ruled that the claimant made false statements for the purpose of obtaining workers compensation benefits in violation of section 1208, thereby forfeiting the right to both the pre and post-deposition benefits that she was claiming.

On appeal, Moran argued that the forfeiture requirement of section 1208 applies prospectively only. Moran cited opinions from the Louisiana First and Third Circuits. After addressing the statute and the case law, the Moran court affirmed the decision of the workers compensation judge finding that the forfeiture of benefits provided for in of Section 1208 is clear and unambiguous. The opinion states that “…if the legislature had intended to limit the application … it would have clearly expressed that in the statute.”

There are no Louisiana Supreme Court opinions which specifically address whether the Section 1208 forfeiture applies retroactively or prospectively only. Given the defined split in the Louisiana appellate courts, the issue is ripe for consideration by the state’s highest court.

Ed is a Keogh Cox partner who litigates Worker’s Compensation, automobile and premises liability as well as subrogation claims. He is an avid runner and enjoys traveling with his wife Jennifer and their three children.