Litigation

How Does a Pre-Existing Injury affect your Workers’ Compensation Claim?

Published on: April 25, 2023 | By Berniard Law Firm

car_taxi_cab_cab_0-scaled When people are injured at work, they expect to be compensated for an extended period. However, worker’s compensation can be hard to recover. So how does a pre-existing injury affect your workers’ compensation claim? The following lawsuit from Metairie, Louisiana, helps answer this question.

Sharon Mangiaracina suffered a work-related injury to her shoulder and thumb when she fell from an allegedly defective chair while working for Avis Budget Group, Inc. (“Avis”). Mangiaracina claimed the shoulder injury already existed but was worsened after the accident. The fall led to surgery on the injured shoulder. Due to the pre-existing nature of the shoulder injury, Avis and its insurer, CNA, refused to pay for the surgery. As a result, Mangiaracina’s health insurance paid for most of her medical bills, and she sustained some out-of-pocket expenses. She filed a claim for compensation for medical and indemnity benefits from Avis and CNA.

The worker’s compensation judge found Mangiaracina suffered from a pre-existing injury that was worsened by the work-related injury for which she deserved compensation. Accordingly, the judge awarded Mangiaracina weekly temporary total disability benefits. Avis was also ordered to pay for all medical and travel expenses from the sustained injuries. Therefore, a pre-existing injury did not affect Mangiaracina’s workers’ compensation claim in this case.

A “Stay” of a Federal Suit May Have Far-Reaching Impacts for Prescription Purposes

Published on: April 24, 2023 | By Berniard Law Firm

clock_time_time_indicating_19-scaled Personal injury cases can often drag out for years in a confusing manner. This is especially true when there are disagreements about the proper venue and subject matter jurisdiction. A recent appeal discussed below tackles the challenges of dismissal of actions due to a lack of jurisdiction and the timing requirement of prescription.

This case arose out of a car accident in 2010 in Tangipahoa Parish. Plaintiffs initially filed in federal district court to recover damages for personal injuries, claiming the federal court had jurisdiction due to the diversity of citizenship between plaintiffs and defendants. Ms. Crowe, the defendant, had moved to dismiss due to her claim that she was a Louisiana resident at the time and, thus, diversity of citizenship did not exist. In 2011, the federal court denied Crowe’s motion.

However, in 2012 a different federal district court dismissed the plaintiff’s complaint due to lack of jurisdiction. In the current lawsuit, heard in state court, the defendant argued the case was prescribed on its face because it was filed over two years after the accident, and no defendant was served with process within the applicable period. Eventually, this issue was decided in a pre-trial proceeding, and then evidence regarding prescription was excluded from the trial. The trial court found for the plaintiffs, and the defendants motioned for a new trial based on the claim the court erred in denying the exception of prescription.

When do you Need your Doctor’s Testimony to Win your Workplace Injury Lawsuit?

Published on: April 23, 2023 | By Berniard Law Firm

doctor_dentist_dental_clinic-scaled When injured on the job, your doctor knows best until you get a second opinion. While your primary care doctor may advise you to recover instead of resume working right away, if you get a second opinion that finds you capable of working, that second opinion can trump your primary care doctor’s opinion.

In the Louisiana civil service world, an employee cannot refuse to go to work if they have not presented a viable reason for their inability to work. If a civil servant refuses to work, they could be terminated. While our court system sympathizes with people injured on the job, if one doctor says you can work, you need to present testimony from a doctor that you cannot work at the pre-termination hearing or risk losing your job. The following lawsuit out of New Orleans helps answer this question; when do you need your doctor’s testimony to win your workplace injury lawsuit?

Kerry West was injured on the job while a classified employee with twenty-five years of experience working for the Sewerage and Water Board of New Orleans (S&WB). Although West’s primary care physician ordered him to recover and not return to work, S&WB sent West to get a second opinion. This second opinion found West was capable of “light duty.” Accordingly, s&WB assigned West to a light-duty position for the duration of his recovery, but West followed the advice of his primary care physician and did not return to work.

When Does the Date of Disability Start for a Workers’ Compensation Claim?

Published on: April 22, 2023 | By Berniard Law Firm

disabled_parking_space_parking-scaled When you are injured on the job, it’s not always your employer’s or fellow employee’s fault. If you are injured while working by a third party, there are rules to follow when settling your claims. Following those guidelines is important because if you don’t, you may alter the workers’ compensation benefits owed to you.

Below is a story of one worker’s workplace injury and his path to physical and financial recovery. This case shows the importance of getting authorization from your workers’ compensation carrier before settling with third parties. It also helps answers the question; When does the date of disability start for a workers’ compensation claim?

While driving at work in early August 2012, Clyde Tolley was injured in a car accident. He continued to work until he was fired. Tolley then moved to Florida, where his injuries worsened. Tolley consulted a Florida doctor who recommended seeing an orthopedic specialist. Unfortunately, Tolley waited a year before engaging with the specialist.

Can a State Fire Marshall be liable for Inspector Negligence in a Wrongful Death Lawsuit in Louisiana?

Published on: April 20, 2023 | By Berniard Law Firm

us_navy_040501_n_14 People rely on public services daily, from fire departments to police officers. But what happens if a public entity is responsible for an injury? Can they be held liable for negligence? A recent case out of Grand Isle, Louisiana, shows how public entities can be shielded from liability for negligent conduct in some circumstances. It also helps answer the question; Can a state fire marshall be liable for inspector negligence in a wrongful death lawsuit in Louisiana?

In 2012 a fire in the Willow Creek Apartments in Grand Isle, Louisiana, killed two occupants, Belle Christin Brandl, and Timothy Joseph Foret. Brandl’s three children filed a wrongful death lawsuit against the apartment’s owners, Steven Caruso and Willow Creek, L.L.C., their insurers, and the State of Louisiana through the Department of Public Safety and Corrections, Office of the State Fire Marshal (SFM) and its inspector. The plaintiffs argued Marchiafava as an inspector, failed to properly look into reports of fire hazards that caused the fire, failed to notify the building owners of any hazard and resolve the hazard, and falsified reports regarding his inspection of the Willow Creek building. SFM and the inspector denied the allegations arguing the inspector did investigate an unverified public complaint at the building, which revealed no serious life hazards. Further, the residents of the building did not have any further complaints of hazards.

SFM and the inspector filed an exception of no cause of action on the grounds SFM and the inspector did not owe a legal obligation, otherwise known as a duty, to the plaintiffs. The trial judge granted the exception. Then SFM and the inspector filed a motion to dismiss the complaint, which was granted, and the plaintiffs filed an appeal.

What do I need to Prove for A Slip and Fall Lawsuit in Louisiana?

Published on: April 19, 2023 | By Berniard Law Firm

ford_e_series_wagon_10-1-scaled If you are walking down the aisle of a store and fall and injure yourself, you may think you have a winning lawsuit. However, that is not always the case. A recent lawsuit out of Gretna, Louisiana, establishes what a plaintiff needs to prove when filing a slip-and-fall lawsuit in Louisiana.

Terry Collins was walking down one of the lumber aisles in a Home Depot in Gretna, Louisiana when he slipped and fell on a liquid substance spilled on the floor. Home Depot and ISS Facility Services, Inc. had a Maintenance Services Agreement and before Collins fell, ISS employees used a floor-cleaning machine around where Collins slipped. Following the accident, Collins and his wife filed a lawsuit against Home Depot and ISS.

Home Depot moved for summary judgment, asking the court to decide in its favor based on the current facts. Home Depot argued under La. R.S. 9:2800.6. Collins failed to prove Home Depot had actual or constructive notice, meaning Home Depot employees were actually aware of or should have been aware of the spilled liquid in the aisle.

Utility Ground Hole Fall Lawsuit Fails on Lack of “Constructive Notice”

Published on: April 18, 2023 | By Berniard Law Firm

manhole_manhole_cover_cable-scaled If you fall into a utility box with no cover, one would likely think they can recover for the damages they endured. However, in Louisiana, lawsuits aren’t as easy as you think. For example, is a company responsible for the utility box if it didn’t have “constructive notice” the ground hole cover was defective? The following lawsuit out of New Orleans shows the difficulties encountered when suing a utility company for a ground hole cover fall.

Antoine Perrier fell into a utility ground hole near the intersection of Press Drive and Haynes Boulevard. Perrier filed a lawsuit against Bellsouth Communications in which he alleged a failure to maintain the protective cover over the utility box. Perrier also noted that Bellsouth was liable due to the lack of adequate warnings of the dangerous condition of the utility hole near the busy Boulevard.

Believing they were not liable, Bellsouth filed a motion for summary judgment. Under La. C.C.P. art. 966(B)(2) a court should grant summary judgment when there is no genuine dispute of any material fact. If a plaintiff such as Perrier won’t be able to prove his case at trial then a court will dismiss it. This procedure allows for the efficient use of the court’s time. The summary judgment filed by Bellsouth, in this case, focused on constructive notice.

A Warning Cone and a Wet Floor, Who Wins in a Slip and Fall Lawsuit?

Published on: April 17, 2023 | By Berniard Law Firm

caution_cone_orange_traffic-scaled We have all seen warning cones and signs in front of a wet floor at a business. But what happens when you fall in front of the warning cone? Can the company still be held accountable for your injuries? The subsequent lawsuit, Kenner, Louisiana, shows how courts review slip and fall lawsuits on wet floors with warning signs in plain sight.

Marion Bertaut was a patron of the Golden Corral Restaurant, where she allegedly slipped in a puddle of water and sustained injuries. She filed a lawsuit against the restaurant, seeking damages for her fall and injuries.

Corral filed a motion for summary judgment, arguing Bertaut could not prove there was an unreasonable risk of harm at the restaurant. Under Louisiana law, wet or slick floors marked by warning signage are not unreasonably dangerous. La. R.S. 9:2800.6. Corral provided a surveillance video showing a yellow warning cone placed in the area, and Bertaut passed it multiple times.

Can a School be Held Liable for a Visitor’s Injuries on its Campus?

Published on: April 16, 2023 | By Berniard Law Firm

school_primary_school_east-scaled Schools are institutions for learning and public meeting spots for numerous events. People come and go daily and the safety of all visitors is paramount. But what happens when a visitor to a school is injured on the premise? Can a school be held liable for a visitor’s injuries on its campus? The following case out of Kentwood, Louisiana, shows the need for adequate proof when pursuing a trip and fall lawsuit against a school.

John Williams went to pick up his grandson at Kentwood High School when he fell on what he described as a hole in front of the gym’s entrance. He filed a lawsuit seeking damages from the Tangipahoa Parish School Board (TPSB). TPSB filed for summary judgment, arguing the case should be dismissed because Williams could not show proof of unreasonable risk of harm at the school. The trial court granted the motion. The judgment was then appealed to the Louisiana Court of Appeal First Circuit.

In reviewing the matter, the appeals court noted TPSB is a public entity and, under the Louisiana Civil Code, a public entity is responsible for damages caused by the condition of buildings within its care and custody. La.R.S. 9:2800A. This legal concept is vicarious liability, in which a person or company is held liable for acts committed by a third party.

Baton Rouge Recreation and Park Commission Found Not at Fault for Child’s Injuries

Published on: April 15, 2023 | By Berniard Law Firm

louisiana_baton_rouge_state-scaled When someone is injured in an accident, the question often arises, who is at fault? Certain factors must be met to find fault in an injury case. The following case outlines the elements which must be proven to file a personal injury lawsuit against a public park in East Baton Rouge.

While climbing spectator bleachers at a park, two-year-old Derrick Albert Jr. (DJ) fell and landed on a concrete surface. DJ’s parents, Brittany Hasbert and Derrick Albert, Sr., brought a claim against the Baton Rouge Recreation and Park Commission (BREC) for the Parish of East Baton Rouge, pursuing damages for the injuries DJ sustained from his fall.

After receiving the lawsuit, BREC filed a motion for summary judgment to dismiss their claims. BREC argued DJ would be unable to prove the bleachers were defective and the bleachers were the cause of his injuries. BREC also argued that it didn’t have actual or constructive notice of a defect in the bleachers.