Workers Compensation

When Coworkers Attack: Negligence Claims for Intentional Workplace Injuries

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

farm_mountain_farm_meadow-scaled An employee injured at work while performing the functions of her job is generally entitled to worker’s compensation. But what about a worker injured on the job by the intentional act of a fellow employee? An action for recovery due to employer negligence could be a better option.

Louisiana worker’s compensation law does not provide coverage for employees injured during an incident unrelated to their workplace activities, for example, an altercation between co-workers arising out of personal issues. R.S. 23:1031E.

Instead, an employer may be liable for negligence if it had reason to believe its employee(s) could be attacked at work but failed to intervene. Posecai v. Wal-Mart Stores, Inc.. Courts will consider whether the employer had information suggesting an incident might occur and, if so, when it was received and what level of detail was available to help determine the appropriate response. See Carr.

Can An Undocumented Worker Receive Workers’ Compensation Benefits?

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

document_paper_former_war-scaled Navigating receiving workers’ compensation benefits following an on-the-job injury can be difficult. It is even more difficult when you are an undocumented worker. Unfortunately, that is the situation Candido Perdomo, an undocumented worker, found himself in after he was injured when he was pinned underneath a garbage truck when a road collapsed.

Perdomo filed a claim against RKC and its insurer after they reduced his workers’ compensation benefits following his injury. RKC agreed that Perdomo was injured in the scope of his employment. Although they agreed that his average wage was $630 per week at the time of the accident and his compensation was $420 per week, they claimed that he had a weekly earning capacity of $145 per week after the accident, with a compensation rate of $323.33. Therefore, they claimed they had the right to reduce Perdomo’s benefits under La. R.S. 23:1206.

This claim went to trial at the Office of Workers’ Compensation (“OWC”), who agreed with the Defendants that the reduction in Perdomo’s benefits to $323.33 was appropriate. The OWC noted that it was the Defendants’ burden to establish that Perdomo could physically perform a given job and that Perdomo had not met his burden of proof in showing that his injury caused his inability to work. The OWC also said that Perdomo could not rely on the fact he was undocumented as a reason he had not found work. Perdomo appealed.

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.

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.

Choice in Pharmacy For a Work-Related Injury Belongs to the Employer

Published on: April 4, 2023 | By Berniard Law Firm

pills_medication_tablets_bottle-scaled Getting treatment and medication can be challenging when recovering from an on-the-job injury. If you are injured at work, you may want to pick up prescriptions at the local pharmacy closest to you. While you may have interpreted Louisiana’s Workers’ Compensation statutes to allow for “choice of pharmacy” in the past, the rule is clear. The following case out of the Louisiana Supreme Court shows why the choice in pharmacy for a work-related injury belongs to the employer.

In October 2008, Darvel Burgess sustained an injury while on the job. As a result of that injury, Burgess filled his prescriptions at the pharmacy of his choice. Unfortunately, his employer, the Sewerage & Water Board of New Orleans (S&WB), failed to reimburse him for those prescription costs. Therefore, Burgess filed a Disputed Claim for Compensation against S&WB seeking to recover money for medical bills and an outstanding $13,110.02 for Injured Workers Pharmacy (“IWP”) for prescription medications prescribed by his doctor.

S&WB argued it was not responsible for the outstanding prescription medications bill, according to La. R.S. 23:1142(B) because it notified all injured workers of their pharmacy, Covel Caremark Pharmacy. S&WB stated this was the approved provider for prescription services, and if an employee failed to use this provider, they might not pay for prescriptions. S&WB also notified IWP that it was not an approved pharmacy for workers’ compensation purposes.

Probationary Employees Beware: Employer Takes Issue with Louisiana Workers’ Compensation Judge Decision on Appeal

Published on: March 29, 2023 | By Berniard Law Firm

workers_road_workers_site-scaled Employment law disputes are very fact-specific inquiries. Judges, especially workers’ compensation judges, are typically well-equipped to handle these cases. But when a judge mishandles the facts or misinterprets the law having an excellent attorney in your corner helps in the appeal process. For the Sewerage & Water Board of New Orleans (“SWBNO”), the appeal detailed below involves several issues that SWBNO argues were in error based on the workers’ compensation judge’s decision.

To provide important background information, this case involved a former employee, Catherine Johnson (“Johnson”), who was hired by SWBNO in April 2013 as a probationary employee, meaning she was not considered a full-time employee during the six months after she started the job. However, while Johnson was still in this designated probationary period, she was injured on the job during her employment with SWBNO. About a month before Johnson’s probationary period was set to end, SWBNO held a pre-termination hearing that determined Johnson displayed a poor work performance unrelated to her injury, which caused her employment to be terminated.

Johnson subsequently filed a disputed claim for compensation against SWBNO with the Office of Workers’ Compensation that included a request regarding penalties for failure to timely reimburse mileage expenses, among other payments for wages and benefits. SWBNO denied the claims, and a hearing ensued before the workers’ compensation judge.

Three-Year Rule Applies to Worker’s Compensation Claims for Necessary Treatment

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

time_clock_defect_showing-scaled Timing is an important part of claiming worker’s compensation in Louisiana. Louisiana R.S. 23:1209(C) requires that:

The employee files an initial claim or makes other suitable arrangements within one year of the injury; and
The employee makes any subsequent claims no more than three years after the last payment of medical benefits.

When Can I File a Tort Lawsuit against my Employer if I am Hurt at Work in Louisiana?

Published on: March 14, 2023 | By Berniard Law Firm

forklift_machine_crane_1645850-scaled Workers’ compensation is a financial support system that may be available to injured employees. It aims to ensure employees are compensated for their injuries and do not bear the entire expenses of medical bills. Workers’ compensation laws differ from state to state. Still, the general idea is that employees can get benefits regardless of who was at fault for the injury so long as the injury arose from an act during employment.

While workers’ compensation provides employees a safety net, not all claims fall under the statutory regime. Sometimes plaintiffs, like David Lindsay, believe that their injury might result from an intentional act by their employer, which could allow for a more significant damage award. Those workers will try to file their workplace accidents as intentional tort claims. The following case from the First Circuit in Louisiana discusses how employees try to recover damages outside of Workers’ Compensation benefits for their injuries on the job. It also helps answer the question, when can I file a tort claim against my employer if I am hurt at work in Louisiana?

David Lindsay was an employee at Packaging Corporation of America (PCA), where he operated forklifts as part of his duties. He suffered severe injuries when the forklift he was driving slipped and fell off a loading dock. This accident lodged his left forearm between a railcar and the safety cage on the forklift.

Lawsuit Over Car Accident Involving Louisiana State Employee Dismissed After Three Years of Inactivity by Plaintiff

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

bike_abandonment_urban_exploration-scaled Anyone involved in a lawsuit knows that litigation can take months or even years to resolve. Though courts try to expedite the process, the parties involved are also responsible for moving the case forward expediently. If the plaintiff in a lawsuit files a complaint and fails to take further action for a certain amount of time, the defendant may file a motion to dismiss on the grounds of abandonment. The case below is an example of how the abandonment of a lawsuit by the plaintiff resulted in the dismissal of the action.

Deborah Allen was an employee of the Louisiana Department of Social Services (“LADSS”). On February 2, 2007, she was riding as a passenger in a LADSS vehicle struck from behind by a car driven by Matthew Humphrey. Allen filed a lawsuit against Humprey and his automobile insurer, Imperial Fire and Casualty Insurance Company, seeking compensation for the injuries she received in the crash. Shortly after that, Louisiana’s Division of Administration, Office of Risk Management (“ORM”) filed a petition of intervention, seeking reimbursement from the defendants for workers’ compensation payments made to Allen. You can think of an intervenor as being a replacement or substitute plaintiff in an action who has a related claim against the defendants.

Because Humphrey was underinsured, Allen filed a lawsuit against LADSS. However, LADSS claimed that it had no underinsured motorist coverage and that Allen was only entitled to workers’ compensation from LADSS. LADSS was successful in securing a dismissal of Allen’s lawsuit. In early 2013, Allen and LADSS settled Allen’s workers’ compensation claims. On February 8, 2013, Humphrey and Imperial Fire filed a motion to reduce the jury bond, which is money to procure a jury. In 2014, Humphrey and Imperial Fire sent a settlement letter to Allen, but neither Allen nor the ORM responded to the letter. In 2016, Humphrey and Imperial Fire filed a motion to dismiss Allen’s lawsuit on the grounds of abandonment. After the trial court granted the defendants’ motion, ORM appealed.