Louisiana Top Cases

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Louisiana OWC Has Jurisdiction Where All Elements of Employment Contract--Except Drug Test to be Performed in --Were Completed While Claimant Was Resident of Louisiana.   Dodd v. Merit Elec., Inc., 2009 La. App. LEXIS 563 (April 15, 2009).  The claimant, an electrician's helper, was hired in March 2007 by the employer to work in .  The claimant moved from Louisiana for the position, and was subsequently transferred to Maryland to work on another project. The claimant was allegedly injured when he picked up a heavy piece of conduit while at work for the employer in Maryland . The claimant originally received workers' compensation benefits in Maryland, but then decided to pursue benefits in Louisiana . The employer argued that the Office of Workers' Compensation lacked subject jurisdiction because the accident occurred outside Louisiana . The workers' compensation judge (WCJ) found that the contract of hire was made in .  On appeal, the appellate court ruled that the WCJ was clearly wrong in finding that the contract of the claimant's hire was not made in Louisiana . The claimant had a reasonable expectation that she had the job before she left Louisiana for .  Although she knew that a condition of her being hired was a negative drug screen, this was a mere formality as she did not use drugs. The claimant passed the drug test and began working for the employer, so the contract was virtually completed from Louisiana .  The judgment was reversed and remanded. See generally Larson’s Workers’ Compensation Law § 143.03.

Claimant's Psoriasis Held Not to be Occupational Disease.  Carrodine v. Pilgrim's Pride Corp., 2009 La. App. LEXIS 376 (March 11, 2009).  In a workers' compensation action, medical testimony revealed that the employee suffered from the chronic disease of psoriasis. She claimed her psoriasis was an occupational disease caused by certain chemicals and other skin irritants to which she was exposed during her last two employments. Both employers were made parties to the suit. Her last employer was dismissed. Judgment was rendered against the previous employer upon the determination that psoriasis was an occupational disease. The appellate court reversed, stating that the medical testimony did not support the holding that psoriasis was an occupational disease under La. Rev. Stat. Ann. § 23:1031.1(B). No doctor testified that the contact dermatitis the employee experienced at the previous employer was an occupational disease that was contracted at that employment due to causes and conditions characteristic of and peculiar to her employment. The skin rashes from the substances resolved; the rashes were not addressed in the record by medical expertise and defined as a chronic diseased condition; and for the last 16 months of her employment, she did not claim any skin-related ailments.  The appellate court reversed the judgment and assessed costs of the appeal against the employee.  See generally Larson’s Workers’ Compensation Law § 52.03.

OWC Has Substantial Discretion in Judging Credibility of Witnesses.  McLin v. LeBouef, 2008 0378 (La.App. 1 Cir. 09/19/08); 2008 La. App. LEXIS 1200 (September 19, 2008).  Appellant employer sought review of a decision of the Office of Workers' Compensation (OWC), District 09, Parish of Terrebonne (Louisiana), awarding appellee employee temporary total disability benefits and increasing the minimum weekly benefit amount of $ 121 to $ 181.50 pursuant to La. Rev. Stat. Ann. § 23:1171.2. Additionally, the employee was awarded penalties, attorney's fees, costs, and interest.  The employee, a convicted felon, testified that he fell from a roof while nailing shingles, fracturing his wrist. He called the employer and asked for gas money to go to the hospital. He testified that the employer brought him the money but told him not to tell the hospital that he was injured on the job. He told the hospital that he fell from a tree, but eventually told the doctor that he had fallen from a roof. The employee's brother and another witness, both convicted felons, corroborated his story. The employer testified that he did not employ the employee, did not give him gas money for the hospital, and did not tell him to lie at the hospital. Other employees testified that the employee was not present at the job site. The court held that the OWC judge was not manifestly wrong in deciding in favor of the employee. There was evidence that the employee's brother was paid the next week, supporting his testimony that he was at the job site and saw his brother fall. The employer had a motive for lying: that he did not have worker's compensation coverage in violation of La. Rev. Stat. Ann. § 23:1168.  The court affirmed the judgment of the OWC court, awarded the employee $ 500 in additional attorney's fees, and assessed costs of the appeal against the employer.  See generally Larson’s Workers’ Compensation Law § 130.03.

Drowning During Impromptu Swimming Session Not Compensable.  Obien v. Mitcham Peach Farms, LLC, No. 43,637 (La.App. 2 Cir. 10/29/08); 2008 La. App. LEXIS 1359 (October 29, 2008).  The Louisiana Office of Workers' Compensation, District 1E, Parish of Lincoln, Louisiana, dismissed appellant relatives' workers' compensation benefits from appellee employer. The workers' compensation judge (WCJ) granted the employer's motion for summary judgment and dismissed the relatives' claims. The relatives appealed.  The relatives filed for workers' compensation benefits arguing that the employee's death resulted from his employment with the employer. The appellate court found that the trial court did not err in finding that the employee's drowning was not in the course of or did not arise out of his employment with the employer. The impromptu swimming session was neither expected nor mandatory on the part of the employer. Nothing in the record supported a finding that the employee was compelled by the employer to engage in the swimming activity. There was no evidence that the employer received any benefit from the swimming activity. The swimming occurred directly after the day's work had ended. The work had been concluded and the employee was aware he was on his own time. Swimming was completely unrelated to the employee's employment activities. His work did not require him to go swimming for any reason.  The judgment was affirmed.  See generally Larson’s Workers’ Compensation Law § 22.02.

Single Penalty of $2,000 Allowed for Delay In Payment of $30 Medical Bill; Second $2,000 Penalty Not Justified by Statute.  Russell v. Regency Hosp. of Covington, LLC, 2008 0538 (La.App. 1 Cir. 11/14/08); 2008 La. App. LEXIS 1489 (November 14, 2008).  Claimant employee brought a claim for medical treatment, penalties, and attorney's fees against respondent employer. A worker's compensation judge (WCJ) in the Office of Workers' Compensation Administration, District 6, Louisiana , awarded the employee a penalty of $ 2,000 and attorney's fees of $ 750, plus an additional $ 250 fee in connection with the failure to tender a $ 30 reimbursement. The employee appealed.  The employee, a nursing assistant, injured her shoulder while turning an obese patient at the hospital where she worked. Her initial treatment was paid for, but the employer failed and refused to pay a doctor the employee later visited for the treatment. The WCJ made two separate awards of attorney's fees, first in connection with the employer's failure to approve medical treatment, and second, due to its failure to reimburse the employee for a $ 30 co-pay. The court found that the WCJ considered all relevant factors, but committed legal error under La. Rev. Stat. Ann. § 23:1201(J) in awarding two separate awards of attorney's fees for each violation. The employee also argued that as the right to reimbursement for the $ 30 co-payment was urged no later than the date that a demand letter was faxed to the claims adjuster by her attorney, the maximum penalty of $ 2,000 was applicable and should be assessed. The court agreed, finding that La. Rev. Stat. Ann. § 23:1201(F) made imposition of a penalty mandatory where medical benefits were not paid timely.  The court affirmed the WCJ's judgment insofar as it imposed a statutory penalty of $ 2,000 based upon the failure to authorize and pay for further medical treatment. The court amended the judgment for an additional $ 2,000 in statutory penalties for the failure to reimburse the co-payment. The court vacated the two awards of $ 750 and $ 250 in attorney's fees and rendered judgment for $ 1,000 for attorney's fees.  See generally Larson’s Workers’ Compensation Law § 133.03.

No Jurisdiction to Decide Dispute Between Employer and PPO.  Broussard Physical Therapy v. Family Dollar Stores, No.  08-CC-1013, 2008 La. LEXIS 2760 ( La. December 2, 2008).  Broussard Physical Therapy (“Broussard”) filed a disputed claim for compensation against an employer, Family Dollar Stores, Inc. (“Family Dollar”), and its workers’ compensation insurer, Ace American Insurance (“Ace”), under the Act, alleging that it had provided health care to an employee of Family Dollar and that defendants were liable to it under the Act for underpayment and/or late payment of medical bills for that employee, along with penalties and attorneys’ fees for arbitrary and capricious handling of its claims.   In partial response to Broussard’s claims, Family Dollar and Ace filed a third party demand against FOCUS Healthcare Management, Inc. (“FOCUS”), seeking defense and indemnification based on their PPO contracts with FOCUS.   Family Dollar and Ace alleged that the under-payments complained of stemmed from discounts taken by Family Dollar and Ace pursuant to their PPO contracts with FOCUS and alleged that FOCUS was responsible to them under these PPO contracts for any sums that they may be adjudged liable to Broussard. FOCUS contended the third-party claim filed against it did not arise out of the Act, and therefore, the workers’ compensation judge lacked jurisdiction to decide the claim.  After a hearing, the workers’ compensation judge held that subject matter jurisdiction did exist.  The intermediate appellate court affirmed. The Louisiana Supreme Court reversed, holding that the Office of Workers’ Compensation has the exclusive subject matter jurisdiction over disputes between health care providers and employers/insurers for payment of the health care providers charges for treatment rendered to the employer’s injured worker since the dispute arises out of the Act.  Here, however, the Family Dollar’s claim against FOCUS arose not out of the Act, but out of the contract between the two entities.  The PPO never owes the underlying workers’ compensation obligation and, therefore, can never be a workers’ compensation obligor.  Any claim against such a party does not belong in workers’ compensation court but rather in district court.  The court of appeals decision was reversed. See generally Larson’s Workers’ Compensation Law §§ 150.04, 152.02.

Police Chief’s Fatal Auto Wreck Found to be Outside Employment.  Lockman v. Town of Maringouin, 2007 0615 (La.App. 1 Cir. 12/12/08); 2008 La. App. LEXIS 1669 (December 12, 2008).  Plaintiff, a police chief's widow, filed a disputed claim for workers' compensation benefits against defendant town. A workers' compensation judge from District 5, Office of Workers' Compensation Administration, State of Louisiana, found that the police chief was in the course and scope of his employment at the time of his death within La. Rev. Stat. Ann. § 23:1034.1. The town appealed.  The police chief was killed by a drunk driver while on a personal errand outside of his jurisdiction. He was driving the police car issued to him at the time of the accident. The car was supplied with a police radio, and the police chief had a cell phone with him provided to him by the town. The police chief was expected to be on call 24 hours a day. The widow argued that because the police chief was on call and was driving a vehicle and using a cell phone provided by the town, he was patrolling and therefore in the course and scope of his employment. The court disagreed that the police chief was covered, because he was not performing any law enforcement action at the time of the accident as required by La. Rev. Stat. Ann. § 23:1034.1. He could not be said to be patrolling because he was outside his jurisdiction. Therefore, the widow was not entitled to the benefits of § 23:1034.1.  The court reversed the decision of the workers' compensation judge.  See generally Larson’s Workers’ Compensation Law § 14.05.

Two-Month Delay in Reporting Injury Defeats Claim.  White v. Ratcliff Constr. Co., 08-0705 (La.App. 3 Cir. 12/11/08); 2008 La. App. LEXIS 1622 (December 11, 2008).  Defendants, an employer and its insurer, appealed a decision of the Office of Workers' Compensation (OWC), District 2, Parish of Rapides (Louisiana), finding that plaintiff claimant suffered a compensable accident, under La. Rev. Stat. Ann. § 23:1021(A), and awarding indemnity benefits to the claimant for a work-related injury to his left shoulder, even though his doctor had released the claimant to work with no restrictions.  The claimant worked as a carpenter on one of the employer's construction projects. The claimant was allegedly injured while working, but he did not report the accident and injury until after he was fired approximately two months later. He first sought medical attention after he was terminated. On appeal, the employer and insurer argued that the claimant failed to establish by a preponderance of the evidence that he suffered a work-related injury. The court agreed that the claimant's testimony was not corroborated. Although the accident was witnessed, the failure of the claimant to immediately report the accident was suspect given the employer's company policy to report an accident to a supervisor immediately and the employer's bi-weekly safety meetings. Additionally, the medical evidence in the record was replete with inconsistencies and contradictions. The claimant's x-rays were normal, and follow-up medical treatment was not recommended. The court concluded that it was manifestly erroneous for the workers' compensation judge to find that the claimant suffered a work-related accident, under La. Rev. Stat. Ann. § 23:1021(A).  The court reversed the judgment of the OWC and rendered judgment in favor of the employer and the insurer.  See generally Larson’s Workers’ Compensation Law § 130.05.

Personal Housekeeper Not Employee of Family Corporation In Spite of Receipt of Some Paychecks.  Cavazos v. Southern Constr. Supply, Inc., 08-863 (La.App. 3 Cir. 12/11/08); 2008 La. App. LEXIS 1621 (December 11, 2008).  Appellant housekeeper sought review of a judgment of the Office of Workers' Compensation # 4, Parish of Lafayette (Louisiana), which dismissed her claim against appellee corporation seeking workers' compensation benefits after suffering an injury because the housekeeper was not an employee of the corporation and thus, the corporation was exempt from coverage under La. Rev. Stat. Ann. § 23:1035(B).  The housekeeper worked for a family. After sometime, the family also had the housekeeper clean the office of their corporation. The housekeeper also occasionally cleaned for some of the family's relatives and cleaned the corporation's recreational vehicle. Because the family was often absent from their home when it was time for the housekeeper to be paid, she would get paid through the corporation because someone was usually in the office. While working at the family's residence, the housekeeper fell and injured herself. The court held that the fact that one of the family members was the president of the corporation and thus selected the housekeeper, could fire her, and exercised control over her did to mean that such family member was acting in her capacity as president when dealing with the housekeeper, especially considering the family member had the same authority as the owner of a private residence. The housekeeper's primary function was to clean the residence, not the office, and payment by the corporation was a convenience. The evidence supported the conclusion that the housekeeper was the employee of a private residence, not of the corporation.  The court affirmed the judgment.  See generally Larson’s Workers’ Compensation Law § 64.01.

Worker Cannot Sustain Disability Claim When Own Doctor Says She’s Fine.  Hale v. Ready, 08-719 (La.App. 3 Cir. 12/11/08); 2008 La. App. LEXIS 1635 (December 11, 2008).  Plaintiff employee sought review of an order from the Office of Workers' Compensation, Parish of Calcasieu ( Louisiana ), which awarded summary judgment to defendant employer in an action for workers' compensation benefits.  The employee claimed that she hit her head on a pipe that was sticking out from a nearby shelf. She filed a claim for workers' compensation benefits. The employer moved for summary judgment. The trial court granted the motion for summary judgment. On appeal, the court found that the record was clear that the employee could not meet her burden of proof at trial. The medical evidence showed that two physicians, including her own family doctor, unambiguously concluded that she sustained no ongoing disability as a result of her accident. Both physicians agreed that she was able to return to work with no restrictions and without further medical treatment. The employee did not set forth any evidence whatsoever that established, in any way, that she sustained any disability as a result of hitting her head at work.  The court affirmed the judgment of the Office of Workers' Compensation.  See generally Larson’s Workers’ Compensation Law § 130.06.

Town Employee’s Injuries While Collecting Charitable Donations Did Not Arise Out of Employment.  Lemoine v. Town of Simmesport, 08-429 (La.App. 3 Cir. 12/3/08); 2008 La. App. LEXIS 1587 (December 3, 2008).  Appellant employee's curatrix (employee) sought review of a judgment from the Office of Workers' Compensation, District 02, Parish of Rapides ( Louisiana ), which dismissed her claims against appellee town.  The employee was injured while collecting money for a cares program at a roadblock set up on a highway. The employee argued that the workers' compensation judge (WCJ) erred in finding that the employee was not within the course and scope of her employment at the time of her injury. The employee disagreed, arguing that because the employee's participation in the roadblock was entirely voluntary, the WCJ was correct in concluding that the employee was not in the course and scope of her employment when she was injured. The WCJ found the employee left her place of employment, went home, changed her clothes and was simply volunteering. The court noted that the fact that the employee was on the clock by itself was not determinative of whether the employee was in the course and scope of her employment so as to make her injury compensable under workers' compensation. The court held that the WCJ was not manifestly erroneous or clearly wrong in concluding that the employee was not in the course and scope of her employment when she was injured. Accordingly, the employer was not liable under La. Rev. Stat. Ann. § 23:1031(A).  The court affirmed the judgment.   See generally Larson’s Workers’ Compensation Law § 27.02.

Transmission of Medicare Set-Aside Analyses Interrupts Prescription of Employee’s Claim Under Statute of Limitations.  Reed v. Mid-States Wood Preservers, Inc., 43,799 (La.App. 2 Cir. 12/03/08); 2008 La. App. LEXIS 1582 (December 3, 2008).  Appellant employer sought review of a judgment from the Office of Workers' Compensation, District 1W, Parish of Lincoln, Louisiana, which found partially in favor of appellee employee with regard to the employee's disputed claim for compensation alleging that his injuries resulted in his permanent total disability.  A workers' compensation judge (WCJ) found that performance of two Medicare Set-Aside Analyses (MSA) was not a medical benefit due to the employee under the workers' compensation statute, but the transmission of the MSAs to the employee did constitute an acknowledgment sufficient to interrupt prescription of the employee's claim. As to the Social Security reverse offset issue, the WCJ rule that the employer was entitled to such an offset and also that the employee was required to reimburse the overpayment resulting from the offset, but the reimbursement could be paid over the employee's remaining life expectancy. The court held that an acknowledgement of a claim could be either explicit or tacit and deemed the MSAs transmitted to the employee, although prepared in anticipation of a settlement negotiation, an explicit acknowledgment of the employee's claim and thereby interrupting prescription under La. Civ. Code Ann. art. 3464. Furthermore, the WCJ did not abuse his discretion by noting that the employee should not be left in financial hardship and allowing for repayment over his lifetime as La. Rev. Stat. Ann. § 23:1206 was silent on the method of recouping the overpayment.  The court affirmed the judgment.  See generally Larson’s Workers’ Compensation Law § See generally Larson’s Workers’ Compensation Law § 126.07.

Failure to Take Safety Measures Does Not Give Rise to Intentional Tort Liability for Employee’s Death.  Broussard v. Smith, 08-473 (La.App. 3 Cir. 12/03/08); 2008 La. App. LEXIS 1596 (December 3, 2008).  Plaintiff, the biological father of an employee's children, sought review of an order from the Sixteenth Judicial District Court, Parish of St. Martin ( Louisiana ), which awarded summary judgment to defendant employer in an intentional tort action.  The employer, a gaming club, was located in a high-crime area. Employees often worked alone and handled large amounts of cash. A patron crushed the employee's skull with a fire extinguisher and stole money from the safe. Plaintiff brought an action against the employer, asserting that, after having been warned of the danger, the employer's failure to provide a safer working environment was an intentional act that caused the employee's death. The trial court awarded summary judgment to the employer. On appeal, the court found that while the employer might have been negligent in removing video surveillance equipment and failing to take adequate safety measures, its failure to provide even specifically requested safety equipment was not an intentional tort for purposes of the exception to the worker's compensation exclusivity rule in La. Rev. Stat. Ann. § 23:1032(A)(1)(a). There was no genuine issue of material fact to conclude that the employer acted intentionally to harm the employee. Nor were the complaints and knowledge of the employee's manager sufficient to confer upon the employer the requisite intent to satisfy the exception to the exclusivity rule.  The court affirmed the judgment of the trial court.  See generally Larson’s Workers’ Compensation Law § 103.04.

Shouting at Employee and Pounding Desk Does Not Support Tort Liability; Claim Barred by Exclusivity.  Groff v. Southwest Bev. Co., 08-625 (La.App. 3 Cir. 11/05/08); 2008 La. App. LEXIS 1436; 28 I.E.R. Cas. (BNA) 662 (November 5, 2008).  Plaintiff employee appealed a summary judgment from the Fourteenth Judicial District Court, Parish of Calcasieu (Louisiana), which found in favor of defendants, his employer and a vice-president of the employer, on the employee's claims of intentional infliction of emotional distress, assault, defamation, hostile work environment, and invasion of privacy.  The employee had been diagnosed with emotional stress-related problems for which he was taking various medications. His claims arose from an incident in which the vice-president yelled obscenities at him while pounding on a desk. The court held that this incident did not amount to intentional infliction of emotional distress because it was not so outrageous and extreme as to go beyond all possible bounds of decency. As to a claim of assault as defined in La. Rev. Stat. Ann. § 14:36, the employee did not establish that he was in reasonable apprehension of imminent harmful or offensive contact. The claim of invasion of privacy lacked merit because the employee did not establish that anyone became aware of embarrassing private facts about his emotional condition as a result of the incident. The employee failed to satisfy his summary judgment burden on the falsity element of defamation because the obscenities did not contain factual assertions. Because the employee failed to brief his hostile work environment claim, the court treated the issue as abandoned pursuant to La. Ct. App. Unif. R. 2-12.4.  The court affirmed the summary judgment.  See generally Larson’s Workers’ Compensation Law § 104.05.