State News : Louisiana

NWCDN is a network of law firms dedicated to protecting employers in workers’ compensation claims.


NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.  


Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.


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Louisiana

DEGAN, BLANCHARD & NASH PLC

  504-529-3337

Guidry v. Worknet 2000, Inc., 2021-89 (La. App. 3 Cir. 8/11/21)

(OWC Judge Anthony Palermo, District 4)

 

Summary: Claimant precluded from the receipt of workers’ compensation benefits based on his own actions (horseplay) is also precluded from recovering damages from a third-party in a subsequent tort suit.

 

              The Court of Appeal of Louisiana, Third Circuit affirmed lower court judgments dismissing Claimant, Robert Guidry’s workers’ compensation claim and tort suit for damages. Claimant was employed as a lumber puller with Worknet 2000, Inc. On the date of the incident, Claimant was engaged in lumber pulling at Gaiennie Lumber Company, LLC (“Gaiennie”), and was working alongside co-worker Marion Sam. At some point, another co-employee, Joseph John arrived driving a forklift, and commenced to complete donuts while Claimant held on to the side of the machine. In the process, Claimant either got off or fell off of the forklift which then rolled over his right leg causing serious, disabling injuries.

 

            Claimant filed a workers’ compensation claim against his employer and its workers’ compensation insurer. After a trial on the merits, the workers’ compensation judge (“WCJ”) took the matter under advisement, and later issued a ruling denying benefits because Claimant was engaged in horseplay and therefore not within the course and scope of his employment. Claimant also filed a suit for damages against his employer, Gaiennie, and Joseph Johns, alleging negligence, intentional tort, and vicarious liability. Gaiennie filed a motion for summary judgment on the basis of statutory employer immunity which was granted, resulting in the dismissal of Claimant’s disputed claims with prejudice.

 

            Claimant appealed both adverse rulings to the Court of Appeal of Louisiana, Third Circuit to review the correctness of those decisions. In support of his entitlement to workers’ compensation benefits, Claimant argues that while he admits to being engaged in horseplay, he maintains that he was in the process of returning to his duties when the accident occurred. In consideration of this fact, as noted in its opinion, the Court narrowed the issue to whether Claimant requested to stop or get off before the accident occur. Though Claimant argued that he purportedly asked Joseph John to stop prior to the accident, WCJ found the testimony and version of events offered by other witnesses, suggesting that Claimant did not ask to get off of the forklift, to be more credible.

           

            Moreover, Claimant argues that since the WCJ denied recovery on the basis of horseplay, he cannot be further denied the opportunity to bring his claim in tort. The First Circuit flatly rejected Claimant’s contentions, finding that Claimant’s injuries would have been covered under the Louisiana Workers’ Compensation Act, but for his own engagement in horseplay which caused him injury.

 

 

Hebert v. Aramark Servs., Inc., 2021-0631 (La. App. 1 Cir. 7/30/21)

(19th Judicial District Court – Baton Rouge, Louisiana)

 

Summary: Claimant’s workers’ compensation file deemed discoverable in subsequent lawsuit.

 

            The Court of Appeal of Louisiana, First Circuit reversed a district court ruling which denied the production of a Claimant’s worker’ compensation file in a subsequent tort suit for damages. In its opinion, the Court held that the confidentiality provision of La. R.S. 23:1293[1] does not operate to preclude a claimant’s `workers’ compensation proceeding file from being sought through discovery in a subsequent personal injury action arising out of the same circumstances. The Court reasoned that Louisiana law[2] dictates that the information sought through discovery must be reasonably calculated to lead to the discovery of admissible evidence. In this instance, the information sought in Claimant’s workers’ compensation file could lead to the discovery of admissible evidence regarding the nature and extent of the Claimant’s injuries.

 

 

Zinn v. Zagis, USA, L.L.C., 2020-00971 (La. 3/2/21)

 

Summary: Language on the back of settlement check requiring claimant’s acceptance and endorsement is not an unconditional tender of settlement funds under Louisiana law and allows for additional penalties and attorney’s fees to be imposed.

 

            The Louisiana Supreme Court recently held that an employer who fails to unconditionally tender funds to a workers’ compensation claimant is subject to a mandatory award of penalties and attorney’s fees. In the case Zinn v. Zagis, USA, supra, the claimant settled his claim with his employer for $40,000 which was disbursed to him in two separate checks. The back of the settlement checks contained language which placed certain conditions on claimant’s acceptance and endorsement. Rather than contact the employer, claimant’s counsel retained the checks for 30 days then filed a motion seeking penalties and attorneys, which was ultimately granted by the Louisiana Supreme Court on the basis that the employer failed to unconditionally tender funds to claimant within 30 days as La. R.S. 23:1201(G) dictates.

 

Rodriguez v. Nola Motor Club, L.L.C., 19-447 (La. App. 5 Cir. 10/5/20), 304 So. 3d 147, 152, writ denied, 2020-01432 (La. 2/17/21)

 

Summary: Claimant forfeited his entitlement to workers’ compensation benefits after making false statements regarding pre-existing anxiety and heart related conditions.

 

            In this case, the Court of Appeal of Louisiana, Fifth Circuit affirmed the decision of a workers’ compensation judge who found that a claimant forfeited his right to compensation by willfully making false statements to obtain benefits in violation of La. R.S. 23:1208. The claimant sought benefits after a work-related accident in which a go-cart engine produced a false explosion pulling claimant to the back and the top of the go-cart. Claimant filed a disputed claim for compensation alleging that he sustained injuries to his lower back and left shoulder. Claimant’s employer and its workers compensation carrier filed a motion for summary judgment contending that claimant had violated La. R.S. 23:1208 by making false statements for the purpose of obtaining benefits in his deposition. The workers’ compensation judge granted the employer and its workers’ compensation carrier’s motion, and the claimant appealed.

 

            On appeal, the Fifth Circuit rejected the claimant’s argument that he was only seeking compensation for injuries to his lower back and left shoulder, and the statements he made regarding his anxiety and heart-related issues were inconsequential. Instead, the Court found the statements made by the claimant clearly and unambiguously indicated he suffered severe anxiety and heart-related issues as a result of the work-related accident. Moreover, claimant’s medical records indicated he was diagnosed and treated for anxiety less than two months prior to the work accident, he was taking anxiety medication the day of the work accident, and received significant medical treatment for his heart dating back to 2007 until as recently as three months prior to the work accident. Given the timing and extensive prior medical history, the Court believed it was highly unlikely that the claimant was mistaken or had a lapse in memory. Instead, it opined, at the very least, claimant was attempting to support or bolster his claim for injuries to his back and shoulder.

 



[1] La. R.S. 23:1293 provides in pertinent part, “All medical records of an employee, all records of payment of compensation to an employee or his dependent, all records with respect to the rehabilitation or attempted rehabilitation of an injured employee, all employer reports of injury as required by R.S. 23:1306, all claims by an employee or his dependent filed pursuant to R.S. 23:1310, records submitted to the Louisiana Workers' Compensation Second Injury Board concerning claims for reimbursement arising out of a claim by an employee or his dependent filed pursuant to Chapter 10 of this Title, including but not limited to any and all records submitted for requests for reimbursement, documents maintained in the claim files regarding reimbursement and settlement requests, and all records submitted pursuant to R.S. 23:1378(A)(5), all safety plans pursuant to R.S. 23:1291(B)(4), all safety records of the OSHA section obtained in connection with the Insurance Cost Containment Act or the OSHA 7(c)(1) program, and all data produced pursuant to R.S. 23:1291.2, shall be confidential and privileged, shall not be public records, and shall not be subject to subpoena, except that records of the office may be produced in response to an order of a workers' compensation judge based upon his finding that the record is relevant and necessary to the resolution of a disputed claim pending before the office. Such confidentiality and privilege shall be strictly maintained by the assistant secretary and all employees of the office except as provided above or in Subsection B of this Section and shall be used exclusively for the purpose of discharging the duties and responsibilities of the office under this Chapter.”

[2]             The information sought must be reasonably calculated to lead to the discovery of admissible evidence. See La. Code Civ. P. art. 1422.

 Louisiana has adopted certain Medical Treatment Guidelines with the purpose of assisting with the decision making process regarding proposed medical treatment for injured workers. The Medical Treatment Guidelines have been effective for several years.   For any dispute as to whether the recommended care or treatment is in accordance with the medical treatment schedule, or whether a variance from the medical treatment schedule is reasonably required, any aggrieved party may file a Disputed Claim for Medical Treatment appeal with the Office of Workers’ Compensation Medical Director. 

This process was challenged by a group of claimants and their attorneys, under constitutional grounds.  Unfortunately, in March of 2017, a district judge granted this challenge to the medical director system, finding the process unconstitutional, and enjoining the OWC from applying the regulations.  The OWC then filed a suspensive appeal, and the issue is currently awaiting review by the proper appellate court.  The OWC has resumed the medical review process during the pendency of the appeal.  However, the future of the process is uncertain.  We will monitor this issue on an ongoing basis.

In Burgess v. Sewerage & Water Board of New Orleans, 2016-2267 (La. 06/29/2017) the Louisiana Supreme Court has held that the choice of pharmacy in a workers’ compensation case belongs to the employer, and not the employee.  Resolving a split in the state’s circuit courts of appeal, the Supreme Court acknowledged that La. R.S. 23:1203 obligates an employer “to furnish all necessary drugs” to the injured employee. The statute does not, however, directly address who has the right to choose the pharmacy to dispense the drugs.  The Court noted that the Legislature could have explicitly given employees the choice of pharmacy, just as it gave employees the choice of physician under the statutory scheme, but the legislature did not. The Court reasoned that given the statutory ambiguity (and because prescription medications need only be furnished in a timely manner regardless of where they come from), as well as the cost-consciousness implicit in the statute, employers should control pharmacy dispensing.

 

The recent case of Clavier v. Coburn Supply Co., 2016-0625 (La. 06/27/2017) addressed the issue of choice of functional capacity evaluation (FCE).  For the first time, the Louisiana Supreme Court ruled on the payment of such an FCE.  The Employer had obtained an FCE and the claimant apparently disagreed with the results, and she sought an order from the workers’ compensation judge compelling Employer to pay for an FCE of the claimant’s choosing.  When the judge denied the request, claimant ultimately pursued her appeal to the Louisiana Supreme Court.  The Court denied the request and found that claimant was not entitled to an FCE with her choice of provider at Employer’s cost; Employer could not be required to pay for an FCE with her choice of provider.