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Hot Topics in Louisiana Workers’ Compensation Law
LaPoint vs Commerce & Industry Insurance Company 20-388 (La. App 3 Cir. 4/27/22) --So.3d -- (awaiting publication)
(OWC Judge Dianne Marie Mayo, District 03)
Summary: Judgment of Georgia state court barring Employer’s claim for reimbursement of benefits paid under Louisiana Workers’ Compensation scheme is not res judicata in claim for reimbursement made in Louisiana
The employer’s right to recover from a third party tortfeasor in out of state litigation was addressed by Louisiana Courts. Employee was hired in Louisiana to work in Louisiana. Later Employee moved to Georgia, continuing to work for the same Employer.
While working in Georgia, Employee was crushed by a vehicle owned and operated by USCI, another contractor doing work at the site. Immediately after the accident, the Employer accepted the claim and paid medical and compensation benefits to the employee under Georgia law. Shortly after his accident, Claimant moved back to Louisiana. At this point, the employer began paying the benefits under Louisiana Law.
Employee filed a negligence suit in Georgia state court against USCI. After USCI and the Claimant settled the case, a dispute remained as to the amount of reimbursement out of the settlement due the Employer for compensation and medical benefits made. The Employer and Employee reached an amicable resolution as to only the amount paid in the form of Georgia workers’ compensation benefits, with all parties reserving their rights as to reimbursement of the Louisiana compensation benefits.
Employee filed for a summary judgment in the Georgia Court to preclude Employer from collecting on its claim for reimbursement for benefits paid the claimant under Louisiana law. The Georgia court (applying lex loci delicti) found that Employer was precluded from asserting its claim for reimbursement for Louisiana benefits in a Georgia Court.
Employee filed suit to enforce the Georgia judgement in Louisiana. The suit was unopposed, and the Louisiana District Court ordered that the Georgia judgement was entitled to full faith and credit in Louisiana. This judgment was not appealed.
Employer filed a claim in the Louisiana Workers’ Compensation Office requesting a forfeiture of his benefits due to his failure to reimburse it from the proceeds of the third-party case. The compensation judge overruled Claimant’s exception of lack of subject matter jurisdiction, and the parties proceeded to a formal hearing. The Compensation Judge correctly applied the statute, ordering the employee to pay two thirds of the amount retained in his trust account, the remaining third being payable to the employee’s attorney under applicable statute.
Employee appealed, for the first time urging the exception of res judicata. Employee argued that the Georgia state court judgment was a final decision as to the Employer’s right to reimbursement and credit even as to the benefits paid under Louisiana law. The Court of Appeals sustained the exception of res judicata, dismissing the Employer’s claim for reimbursement and credit.
Supreme Court granted the Employer’s writ taking up the exception of res judicata. The Georgia Court did not have subject matter jurisdiction over the recovery of benefits paid under Louisiana law. The Georgia Court’s judgment, though valid, did not adjudicate the Employer’s rights to recover its lien falling under Louisiana law. The Supreme Court overturned the decision and remanded the case to the Third Circuit. The Third Circuit then reinstated the original judgment of the Louisiana Workers’ Compensation Office awarding 2/3 of the settlement recovery to the employer.
Batiste vs Minerals Technology, Inc. 21-795 (La. App. 3 Cir. 6/8/2022) (unpublished opinion).
(OWC Judge Anthony Palermo, District 04)
Summary: Judgment awarding attorney fees of $5,000.00 was an abuse of discretion and increased to $46,800.00 based upon an hourly rate of $225.00.
On remand from the Third Circuit, the workers’ compensation judge awarded the Claimant supplemental earnings benefits (SEB), penalties for failure to provide medical treatment, and attorney’s fees.
The Claimant appealed, urging the compensation judge erred in failing to award penalties for non-payment of indemnity benefits, failing to award a penalty of $8,000.00 for failure to provide treatment on many occasions and awarding an abusively low attorney fee.
The judgment of Louisiana Workers’ Compensation Office awarded attorney’s fees of $5,000.00 to counsel for the Employee after a successful prosecution of the claim for supplemental earnings benefits (SEB). The Employee did not submit evidence of his attorney’s time spent or his hourly rate.
Claimant’s post trial brief “outlined his time” spent before the Louisiana Workers’ Compensation Office through trial. Claimant’s counsel spent a total of 208 hours through trial and two appeals. The Third Circuit found that $225.00 per hour was a reasonable hourly fee and increased the award of attorneys’ fees from $5,000.00 to $46,800.00. The Court found that the award of $5,000.00 was an abuse of discretion by the Workers’ Compensation Judge.
Howard vs Rio Sol Nursing Home 2021-824 (La. App. 3 Cir. 6/15/22) 344 So.3d 216
(OWC Judge James J. Braddock)
Summary: Judgment reducing benefits based on available jobs within 45 miles of Claimant’s rural home reversed because the jobs were not in the Claimant’s geographical region.
The Claimant injured her neck and back while working as an LPN for the Employer. The Employer instituted indemnity benefits. The Claimant’s physician released the Claimant to light duty and the vocational counselor assigned to the case identified 3 light duty jobs within 50 miles of the Claimant’s rural home. The Employer reduced benefits based upon the vocational evidence.
The Claimant filed a Disputed Claim for Compensation alleging improper reduction of her benefits. The Claimant appealed, alleging the Workers’ Compensation Judge erred in not finding her entitled to temporary total disability benefits and in finding the reduction of benefits proper.
On Appeal, the Thid Circuit found that the Employer failed to carry its burden of proving the existence of actual jobs in the claimant’s geographical region that were available to the Claimant. Specifically, the Court rejected the three jobs because they were not in the Claimant’s geographical region.
The Claimant’s hometown of Mansura, a small rural area in Avoyelles Parish, Louisiana. The jobs identified for the Claimant were within 45 miles of her home in the City of Alexandria. The Claimant went to Alexandria for her medical care. Louisiana Courts have not set a standard mileage radius to determine whether the job is within the Claimant’s geographic region. This is decided on a case-by-case basis.
The Employer argued that is reasonable to expect the Claimant to drive 45 miles to work in Alexandria because there are very few jobs in her immediate geographic region. The Court took judicial notice of the distance between the Claimant’s home/ Employer’s premises from Google Maps. The Court found the jobs were outside her geographic region. The Court reasoned that because she takes daily medication that makes her drowsy and driving causes her pain level to increase, it was unreasonable to expect her to drive 350 miles round trip to work every week for a $10.00 per hour job plus $150.00 per week in SEB. Accordingly, the Third Circuit found the jobs to be outside of her geographic region, reversing the trial Court’s finding of a proper reduction in benefits. The Court ordered SEB benefits reinstated to the date of reduction at the full TTD rate.
 Although this this judgment was not a dispositive fact in this case, this point is included to emphasize the administrative nature of the Employer’s subrogation remedy in out of state third-party cases.
 LA R.S. 23:1103 C. (1) If either the employer or employee intervenes in the third party suit filed by the other, the intervenor shall only be responsible for a share of the reasonable legal fees and costs incurred by the attorney retained by the plaintiff, which portion shall not exceed one-third of the intervenor's recovery for prejudgment payments or prejudgment damages. The amount of the portion of attorney fees shall be determined by the district court based on the proportionate services of the attorneys which benefitted or augmented the recovery from the third party. The employee as intervenor shall not be responsible for the employer's attorney fees attributable to postjudgment damages nor will the employer as intervenor be responsible for the attorney fees attributable to the credit given to the employer under Subsection A of this Section. Costs shall include taxable court costs as well as the fees of experts retained by the plaintiff. The pro rata share of the intervenor's costs shall be based on intervenor's recovery of prejudgment payments or prejudgment damages.