2021 Q2 Law Review

A summary of cases that involve issues that arose under the Louisiana Workers’ Compensation Act and were decided by the Courts during the second quarter of 2021. This summary was prepared for your review by an LWCC in-house attorney and is not intended to be legal advice.

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Thibodeaux v. Hornbeck Offshore Operators, LLC, 21-00002-WBV-DPC, 2021 WL 1534500 (E.D. La. Apr. 19, 2021)

LWCC sought to intervene under FRCP 24(a)(2) as an “intervenor plaintiff” as the workers’ compensation insurer for the Employer. Alternatively, LWCC sought to intervene pursuant to FRCP 24(b)(2)(B) as a permissive intervenor. The U.S. District Court for the Eastern District of Louisiana found that LWCC satisfied the majority of the factors required for intervention under FRCP 24(a)(2) and granted LWCC’s unopposed Motion to File Intervention pursuant to FRCP 24(a)(2).  The court did not discuss LWCC’s right to intervene under FRCP 24(b)(2)(B).

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LeCompte v. St. Tammany Parish School Board, 2020-0333 (La.App. 1 Cir. 4/26/21)

The First Circuit reversed OWC’s decision to dismiss with prejudice a claim by an employee alleging a workplace injury after being exposed to toxic mold for lack of subject matter jurisdiction, finding that the employee failed to establish he had suffered from an occupational disease.  Employee was a teacher, coach, and athletic director at a high school who filed a claim for medical and indemnity benefits alleging that the school failed to repair toxic mold and other contaminants located in the athletic department facilities which resulted in employee contracting mycotoxin toxicity. The appellate court found the OWC was incorrect in equating employee’s work to clerical work without examining the nature of employee’s actual job duties to determine if the causes and conditions of the alleged disease is characteristic of and peculiar to the particular trade, occupation, process or employment. The court reversed and remanded for the OWC to determine whether the employee suffered an occupational disease based on his work as a teacher, coach, and athletic director.

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Headley v. Textron Sys., 2020-1174 (La.App. 1 Cir. 4/26/21)

Employee claimed he felt a sharp pain in his back when he stood up after completing a weld. He did not report the accident to anyone until ~5 days later when he called his supervisor to say he wouldn’t be at work because he hurt his back. He told his supervisor, HR rep, and short-term disability rep that the injury was not work related. Employee suffered from an intellectual disability and testified at trial in 2019 that he didn’t think he had been hurt at work because there was no “actual accident.” In 2018, however, employee admitted in a deposition that he knew he should have reported the injury but didn’t want to lose his job. Employee did not return to work and received short term disability for 6 months. He then filed a workers’ comp claim about 2 months after disability benefits stopped. Employee had a history of back pain and spinal issues. At trial, the OWC judge found employee had suffered a work-related injury. The First Circuit affirmed the OWC’s ruling that the injury was compensable because prior MRI compared to current MRI showed a new injury at L2-3 and two doctors testified that the injury was probably causally related to a work accident. The First Circuit also reversed the OWC’s award of penalties and attorney fees because the medical evidence was “not immune from misrepresentation” and the employer had reasonably controverted the claim for an “articulable and objective” reason. The appellate court found that while the employer could not deny the new injury, it had factual and medical evidence to dispute whether the injury happened on the job. The court finally ruled that it was not unreasonable for the OWC judge to find that any false statements made by employee were not intentionally or willfully made in an attempt to defraud the employer because employee had an intellectual disability and memory problem.

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Batiste v. Minerals Tech., Inc., 2020-327 (La.App. 3 Cir. 5/5/21)

Employee was a night supervisor who allegedly hurt his back on April 13, 2017 and then reinjured his back on April 20, 2017. Employee also alleged injuries to his leg, neck, and shoulder as well as headaches due to the two work accidents. Employee was released to sedentary work and alleged that employer did not provide any work. Employer claimed that they offered Employee sedentary work, but Employee never showed up. Employee was then terminated. The bona fide dispute was employer’s failure to pay weekly comp benefits, failure to authorize medical treatment, and failure to approve Employee’s COP. The trial court ruled in favor of Employee finding Employee was “entitled to SEBs from April 27, 2017, as well as medical benefits,” $2,000 in penalties and $5,000 in attorney fees for employer’s failure to provide medical treatment. The trial court denied indemnity benefits. Employee appealed claiming the trial court’s ruling was unclear.

The 3rd Circuit found that it lacked appellate jurisdiction to hear the appeal because the trial court’s judgment did not contain decretal language. The court reasoned that only final judgments are appealable under La. law. A final judgment must contain decretal language – specifically the judgment must contain the specific amount and nature of the damages awarded. The trial court’s judgment did not state the specific amount of damages owed and was not a final, appealable judgment. Employee’s appeal was dismissed.

Martin v. Doerle Food Services, LLC, 2021-94 (La.App. 3 Cir. 6/2/21)

Employee suffered a compensable injury in the course and scope of employment. OWC sent Employee for an IME. That doctor found that Employee could return to work without restrictions, so employer terminated benefits. Employee filed a disputed claim seeking penalties and attorney fees and moved to strike the IME opinion. The OWC judge struck the IME and reinstated benefits.  No penalties or attorney fees were awarded as the OWC did not find the employer to be arbitrary, capricious, or without probable cause.  Employee argued that the termination of benefits was arbitrary and capricious because the IME was flawed and biased. The court found that employer’s reliance on the IME was not arbitrary and capricious because the IME was conclusive and did not contain any inconsistencies. Employer was not arbitrary and capricious in relying on the IME even though the doctor went outside the scope of the IME by suggesting Employee was exaggerating his symptoms and should be put under video surveillance. Penalties and attorney fees were denied.

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Hayes v. Denka Performance Elastomer LLC, 20-2058, 2021 WL 2227340 (E.D. La. June 2, 2021)

Employee was injured in the course and scope of employment and filed suit. Employer removed to federal court. Employee amended complaint to include negligence claims and employer filed motion to dismiss arguing that Employee’s claim was barred by the two-contract theory of La. workers comp immunity. Defendant argued it was a statutory employer under two-contract theory. The court found that because Employee was employed by a subcontractor who had been contracted to perform work for a third party, defendant was entitled to the immunity. Motion to dismiss granted.

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LaPoint v. Commerce & Indus. Ins. Co., 2020-388 (La.App. 3 Cir. 6/9/21)

Employee was a La. worker working in Georgia when he was crushed by a semi-truck driven by a third-party tortfeasor. Employer began paying work comp benefits under Georgia law, but then began paying under Louisiana law. Employee filed a third-party tort suit against driver, and employer intervened seeking reimbursement for benefits paid under La. and Georgia law. Employee and employer entered into a Settlement Agreement and Release which provided reimbursement to employer only for workers’ comp benefits paid under Georgia law. Employee filed motion to dismiss pursuant to the language of the Release. Georgia court granted Employee’s motion to dismiss reasoning that Georgia substantive law applied and under Georgia’s workers’ comp law, an employer’s subrogation right is limited to benefits paid under Georgia law. The 14th JDC in La. gave full faith and credit to the Georgia court’s order.  In a consolidated matter, the OWC judge found that Employee had the capacity to request continuance of workers’ comp benefits under La. law rather than Georgia, employer was entitled to a credit toward future workers’ comp benefits paid under La. law, and ordered Employee to reimburse employer for benefits already paid under La. law. Employee appealed alleging the OWC lacked subject matter jurisdiction to decide credit/reimbursement and res judicata.

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The Third Circuit sustained Employee’s claim for res judicata because even though this was the first time Employee asserted res judicata, all elements of R.S. 13:4231 were met. Also, LACCP art. 927 allows res judicata to be considered for the first time on appeal if pleaded prior to a submission of the case for a decision and if proof of the ground of the exception appears on record. R.S. 13:4231 requires: (1) a valid judgment, (2) a final judgment, (3) the identity of the parties, (4) the existence of a cause of action, and (5) the same transaction or occurrence. The court found the Georgia court’s judgment met all elements required to sustain the exception of res judicata. Judge Gremillion dissented in part arguing that res judicata applied to the defendants’ claim for reimbursement but not to the defendant’s claim of a credit against future compensation.

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Amy Rolls v. Packaging Corp of America, Inc., 2:18-CV-00188, 2021 WL 2604919 (W.D. La. June 24, 2021)

An explosion at a paper mill resulted in death and injuries to multiple employees which led to multiple suits. Employee filed suit in state court and defendant removed to federal court. The court granted defendant’s motion for summary judgment finding defendant was Employee’s statutory employer and Employee’s claim was preempted under La. workers’ comp law. Employee then alleged the intentional act exception applied and defendant brought another motion for summary judgment. Employee alleged defendant knew or reasonably should have known an explosion was substantially certain to happen when defendant failed to drain the tank of a highly flammable substance because a similar incident had happened at defendant’s plant in another state. Following that explosion, new rules were implemented which required work areas containing flammable liquids/gas to be emptied before conducting hot work. Employee produced evidence which showed defendant knowingly chose not to drain the tank and that it still contained flammable substances and that several employees knew of the dangers of not draining the tank. The court held that Employee failed to show that the supervisor responsible for draining the tank knew that the explosion was substantially certain to follow. Employee’s evidence that other employees knew the explosion would certainly follow was insufficient to show that the supervisor responsible knew as required by R.S. 23:1032’s plain language. Even if the supervisor was grossly negligence in allowing hazardous conditions to exist, Employee failed to meet its burden of proof that the defendant acted intentionally.