RECENT CASE LAW:  DEVELOPMENTS AND TRENDS IN THE COURTS

____________________

A.LOUISIANA SUPREME COURT DECISIONS

DE FACTO CHOICE OF PHYSICIAN

Snearl v. Kelly’s Industrial Services, Inc., 06-0218 (La. 3/17/06), 924 So.2d 138.

When (1) a physician provides treatment to an injured employee at an emergency room following a job accident, and (2) the employee continues to treat with that physician after the initial emergency treatment, the physician in the employee’s choice of physician.

The Facts

While Alton Snearl was working for Kelly Industrial Services, Inc., a tractor fell on him and crushed his ankle.  After the accident, he was taken to the emergency room of Baton Rouge General Medical Center, where he was treated by the orthopedic surgeon on duty, Dr. Ronald Sylvest.  The following day, Dr. Sylvest operated on Snearl’s ankle.  The first surgery was unsuccessful, so Dr. Sylvest performed a second bone graft surgery.  Snearl continued to treat with Dr. Sylvest for eight months after the surgeries.  Dr. Sylvest then released Snearl to return to work without restriction.

The Dispute

Despite Dr. Sylvest’s release, Snearl claimed that he was still in pain and could not return to work.  Snearl contended that he had not had his choice of orthopedic surgeon and, therefore, he requested approval to see another orthopedic surgeon, Dr. Thad Broussard.  His employer denied the request.  The employer asserted that Snearl had selected Dr. Sylvest as his treating orthopedic surgeon by continuing to treat with Dr. Sylvest after the initial treatment in the emergency room.

The Trial Court Decision

After a hearing, the trial judge found that Snearl was entitled to treatment with Dr. Broussard as his choice of orthopedic surgeon.  The court concluded that, because Dr. Sylvest treated Snearl on an emergency basis, Dr. Sylvest could not be either party’s choice of physician.  La. R.S. 23:1121(E).

The Louisiana Supreme Court Decision

The Louisiana Supreme Court reversed the trial court and found that Dr. Sylvest was Snearl’s choice of physician.  Under La. R.S. 23:1121(B)(2)(a), “if the employee is treated by any physician to whom he is not specifically directed by the employer or insurer, that physician shall be regarded as his choice of physician.”  The court recognized that La. R.S. 23:1121(E) provides an exception for a physician who “administered emergency treatment only.”  A physician that provides emergency treatment is not considered the choice of either the employee or the employer.  In Snearl’s case, the exception did not apply because Snearl continued to treat with Dr. Sylvest after the emergency room treatment.  The court noted that:

. . . after the claimant’s condition  was stabilized, he was free to consult with other physicians if he wished.  After that point, any treatment with Dr. Sylvest was ordinary medical treatment and no longer constituted emergency treatment.

Note: Compare this case to Smith v. Southern Holding, Inc., 2002-1071 (La. 1/28/03), in which the Louisiana Supreme Court held that an employee has an absolute right to select one physician in any field, even if the employee had consented to prolonged treatment, including surgery, with a physician selected by another party.  The difference in the two cases is that Smith involved treatment by the employer’s choice of physician, whereas the employer was not involved in the selection of Dr. Sylvest in Snearl.

UNAUTHORIZED SETTLEMENT OF THIRD PARTY CLAIM

Haynes v. UPS, 05-2378, 933 So. 2d 765 (La. 7/6/06).

When a subsequent accident aggravates an employee’s work-related injury, the employee must obtain written approval of the employer and its insurer to settle a claim arising out of the subsequent accident.  If the employee settles without proper approval, the employee forfeits the right to additional benefits under the Louisiana Workers’ Compensation Act.

The Facts

            On August 28, 2001, Frank Haynes injured his head, neck and back in a work related accident while working for UPS.  Several boxes fell on him while he was unloading his truck.  UPS’s workers’ compensation insurer, Liberty Mutual began paying medical and indemnity benefits soon after the accident.

            On November 16, 2001, while receiving workers’ compensation benefits as a result of his August 28, 2001, job accident, Haynes was involved in a non-work-related automobile accident.  The automobile accident aggravated Haynes’ job injuries.  On January 22, 2002, Haynes settled his personal injury claim arising out of the automobile accident for $3,140.00.  Haynes was not represented by an attorney for his automobile accident claim.  Haynes did not advise Liberty Mutual or UPS of his automobile accident or the settlement.

            On May 6, 2002, Haynes was involved in a second non-work-related motor vehicle accident.  This accident also aggravated Haynes’ job injuries.  Haynes subsequently settled this claim for $5,340.00.  He did not advise Liberty Mutual or UPS of his second automobile accident and settlement.

The Dispute

When Liberty Mutual learned of the accidents and the settlements, it terminated Haynes benefits based on La. R.S. 23:1102(B). (La. R. S. 23:1102(B) provides that, if the employee fails to notify the employer or insurer of a suit against a third person, or fails to obtain the employer and insurer’s written approval of a third party settlement, the employee forfeits the right to compensation).   Haynes then filed a 1008 alleging that Liberty Mutual was not justified in terminating his benefits.  Haynes argued that La. R.S. 23:1102 did not apply because the automobile accidents were not job accidents.

Decisions of the Lower Courts

The trial court agreed with Liberty Mutual that Haynes had settled his third party claims without proper approval and, therefore, dismissed Haynes 1008 on summary judgment.  The Second Circuit Court of Appeal reversed.  The appellate court agreed with Haynes that, because the automobile accidents were not job accident, La. R.S. 23:1102 did not apply.  Therefore, the appellate court reinstated Haynes’ 1008 and remanded the case to the trial court for further proceedings.

Decision of the Louisiana Supreme Court

The Louisiana Supreme Court reversed the appellate court and held that Haynes forfeited his right to compensation by settling his third party claims without proper approval.  La. R.S. 23:1101(C), which was added by the legislature effective January 1, 1990, provides that a “third person” for the purposes of La. R.S. 23:1101, et seq, includes “any party who causes injury to an employee at the time of his employment or at any time thereafter provided the employer is obligated to pay benefits under this Chapter because the injury by the third party has aggravated the employment related injury.”  Because Haynes admitted in his deposition that the two automobile accidents aggravated his job injuries, Haynes settled his claims without the approval of Liberty Mutual and UPS, he forfeited his right to additional benefits under the Louisiana Workers’ Compensation Act.

INTENTIONAL TORT

Simoneaux v. Excel Group, 06-1050 (La. 9/1/06).

(See also, Marino v. Martin’s Oil Country Tubular, Inc., 06-0898, 931 So.2d 1089 (La. 6/23/06), in which the Louisiana Supreme Court summarily reversed a trial court’s denial of an employer’s Motion for Summary Judgment on this issue citing the same legal principles discussed below but omitting any summary of the facts of that particular case).

Unless an employee’s injury was an “inevitable consequence” of an employer’s actions, the intentional act exception does not apply, and the employee’s exclusive remedy is workers’ compensation.

The Facts

Daniel Simoneaux was employed as an electrician’s helper by Excel Group.  Simoneaux, along with other employees, was installing a conduit at the Dow Chemical Plant in Plaquemine, Louisiana.  At the same time, another Excel employee, Bruce Lejeune, was working alone in the basket of an aerial manlift approximately twenty-five feet off of the ground.  As Simoneaux bent down to pick up a tool, the right front tire of the manlift rolled over his left foot.

The Dispute

Simoneaux filed an intentional tort claim against Excel Group and Lejeune.  In support of his claim, Simoneaux produced an expert’s opinion that Lejeune was operating the manlift in an unsafe manner because he was operating it without a spotter and with the boom extended, which made it impossible for Lejeune to see where he was going.  Given the congestion in the area, the noise level in the area, operating the manlift with no visibility made the accident “substantially certain” to happen.  Excel Group and Lejeune denied that they knew or were substantially certain that an accident would occur and, therefore, argued that they were not liable to for tort damages.

The Decisions of the Lower Courts

The trial court denied the Excel Group and Lejeune’s for Summary Judgment, finding that a genuine factual issue existed as to whether Lejeune committed an intentional tort.  The appellate court denied Excel Group and Lejeune’s application for review, thereby tacitly affirming the trial court ruling.

Decision of the Louisiana Supreme Court

The Supreme Court reversed the lower courts and granted the summary judgment.  The court reiterated its prior holdings that “substantially certain” means “inevitable” or “incapable of failing.”  The court noted that “[b]elieving that someone may, or even probably will, eventually get hurt if a workplace practice is continued does not rise to the level of an intentional act, but instead falls within the range of negligent acts that are covered by workers’ compensation.”  Even accepting Simoneaux’s allegations that the workplace was congested, noisy and that Lejeune operated the manlift improperly, Simoneax’s injury was not an inevitable consequence of those actions.  The actions may have been negligent or even grossly negligent, but they were not intentional.

CONSTITUTIONALITY OF LA R.S. 23:1208

In Re: Joseph C. Melancon, III, 05-1702, 935 So. 2d 661 (La. 7/10/06).

 On procedural grounds, the Louisiana Supreme Court reversed a district court ruling that the forfeiture provision of La. R.S. 23:1208 is unconstitutional and that the Office of Workers’ Compensation does not have jurisdiction over any claims involving La. R.S. 23:1208.

The Facts

Joseph Melancon filed a claim with the Office of Workers’ Compensation for workers’ compensation benefits.  His employer, Pulmonary Care Specialist, Inc., answered the claim and alleged that, under La. R.S. 23:1208, Melancon forfeited his right to compensation by making false statements for the purpose of obtaining worker’s compensation benefits.

The Dispute

Melancon filed a Petition for Declaratory Judgment in district court seeking a declaration that the forfeiture procedure of La. R.S. 23:1208 is unconstitutional and that the Office of Workers’ Compensation does not have jurisdiction over any claims involving La. R.S. 23:1208.

The Trial Court Decision

Without explanation, the district court judged held that the forfeiture provision of La. R.S. 23:1208 is unconstitutional because it violates the equal protection clause of the Louisiana Constitution.  The also held that the OWC does not have jurisdiction over any claims adjudicating or applying the other provisions of La. R.S. 23:1208. The district court rendered judgment at a hearing in which no one appeared to oppose Melancon and at which no evidence was presented.

The Louisiana Supreme Court Decision

The Supreme Court reversed.  A strong presumption exists that legislation is constitutional.  For that reason, a court must follow appropriate procedure before declaring a statute unconstitutional.  The unconstitutionality of a statute must be specifically pleaded and the grounds must be particularized.  All interested parties must have sufficient time to brief and prepare arguments defending the constitutionality of the challenged statute.  This procedure provides the trial court with thoughtful and complete arguments on the constitutionality of the statute and provides reviewing courts with an adequate record to determine whether the statute is constitutional.

In this case, the district court declared La. R.S. 23:1208 unconstitutional without determining whether all interested parties had been named as defendants, without determining whether the named parties were properly served, and without any evidence regarding the constitutionality of La. R.S. 23:1208 or establishing Melancon’s standing to challenge the constitutionality of La. R.S. 23:1208.  The district court’s actions were improper and, therefore, the Supreme Court vacated its judgment enjoining the enforcement of La. R.S. 23:1208.  The Supreme Court specifically declined to address substantive issue of the whether the forfeiture provision of La. R.S. 23:1208 is constitutional and whether the OWC has jurisdiction over claims involving La. R.S. 23:1208.

A. LOUISIANA APPELLATE COURT DECISIONS

SEB

Grillette v. Alliance Compressors, 05-982, 923 So.2d 774 (La. App. 3rd Cir. 2/1/06) and Palmer v. Alliance Compressors, 05-478 (La. App. 3rd Cir. 11/2/05).

When (1) an employee with physical restrictions as a result of a job accident returns to work with no wage loss, and (2) the employee is fired for cause, the employee is not entitled to SEB.

The Facts

Grillette:  Yvonne Grillette worked for Alliance Compressors for two years, almost to the day.  During those two years, she had three job accidents.  On May 6, 2001, approximately one month after she was hired, she injured her right foot in a forklift accident.  On January 18, 2002, she injured her back and developed carpal tunnel syndrome as a result of a lifting accident.  On January 4, 2003, she aggravated her back and carpal tunnel syndrome in a slip and fall at work.  On March 31, 2003, Alliance Compressors terminated Grillette’s employment.  Grillette stipulated that she was fired for cause.

Palmer:  Tina Palmer was injured on August 21, 2002, while working for Alliance Compressors.  She missed no time as a result of her accident.  She was released immediately to return to work with light duty restrictions, and Alliance Compressors accommodated those restrictions.  On December 11, 2002, Palmer was terminated for attempting to conceal a violation of the company’s attendance policy.  Palmer stipulated that she was fired for cause unrelated to her job accident.

The Dispute

The dispute was the same in both cases.  The employee contended that, regardless of the reason that she was fired, she was still restricted to light duty work when she was fired, and, therefore, she was entitled to SEB.  Alliance Compressors contended that the employee was not entitled to SEB because she was fired for cause.

The Trial Court Decision

Grillette:  The Trial Court awarded Grillette SEB beginning on the date that her employment was terminated.

Palmer:   The trial court denied Palmer’s claim for SEB.  The court held that it would be contrary to public policy to award SEB to an employee who was fired for cause.

The Appellate Court Decision

In both cases the appellate court denied the employee’s claim for SEB.  An employee who is terminated for cause is no different than an employee who refuses available employment.  In either case, the employee’s wage loss is caused by their actions, not by their job injury.  Therefore, when an employee is fired for cause, the employee is not entitled to SEB unless the modified employment paid less than 90% of their pre-injury wage.  In both Grillette and Palmer, the employee was working with no wage loss before her termination.  Therefore, she was not entitled to SEB after she was terminated.

The court distinguished previous cases involving terminated employees.  Termination of employment does not automatically end entitlement to SEB.  If the court finds that termination was not justified, the employee will be entitled to SEB.  In both Grillette and Palmer, however, the employee stipulated that she was fired for cause.  Therefore, she was not entitled to SEB. In Palmer, the court summarized its holdings on this issue as follows:

“An employer cannot create a job accommodating the restrictions placed on the injured employee and then fire that employee, without cause, to avoid paying benefits. On the other hand, an injured employee cannot refuse to accept the employment or blatantly violate company policy without the possibility of recourse by the employer.”

APPROVAL OF MEDICAL TREATMENT ON DISPUTED CLAIM

Douglas v. Isle of Capri, 40651, 923 So.2d 950 (La. App. 2d Cir. 3/8/06).

When an employee has made a formal claim for compensation for an occupational disease, the office of workers' compensation may order an employer or insurer to pay the cost of the initial visit by an employee with a physician of the claimant's choosing prior to the presentation of proof by the employee that he suffers from an occupational disease. This authority includes the power to order the responsible party to pay for related, appropriate, and reasonable diagnostic testing.

The Facts

Michael Douglas worked as a bartender at the Isle of Capri Casino for over ten years. In March 2005, Douglas filed a 1008 alleging that he had developed a foot ulcer caused by long hours of standing at his job. On June 10, 2005, Douglas filed an amended claim asserting that he had also developed carpal tunnel syndrome ("CTS") as a result of his job.

The Dispute

Douglas filed an expedited motion for medical treatment. He alleged that his Carpal Tunnel Syndrome was work-related and that he was entitled to see an orthopedist of his choice and have related diagnostic tests at the Isle of Capri's expense.  Isle of Capri argued that the OWC could not award Douglas medical treatment in an expedited hearing because a dispute existed as to whether Douglas had an occupational disease.  Isle of Capri contended that the OWC cannot award medical treatment until it determines, after a trial on the merits, that Douglas has Carpal Tunnel Syndrome related to his employment.

The Trial Court Decision

Without explanation, the trial court (Judge Sheral Kellar) ordered Isle of Capri to pay for Douglas to be evaluated by an orthopedist of his choice.

The Appellate Court Decision

The appellate court affirmed the trial court’s ruling. The court found that, although a disputed claim for benefits is not evidence that a claimant actually suffers from a work-related injury, the bare claim is sufficient to commence the fact-finding process. The most important facts in an occupational disease claim are the nature and origin of the claimant's disease, if any.  Therefore, in an occupational disease claim, the OWC may order an employer or insurer to pay the cost of the initial visit by an employee with a physician of the claimant's choosing prior to the presentation of proof that the employee suffers from an occupational disease. This authority includes the power to order the responsible party to pay for related, appropriate, and reasonable diagnostic testing.

The appellate court was careful to note that it based its decision in this case on the unique nature of occupational disease claims.  The court noted that occupational diseases present less obvious symptoms than traumatic injuries and that expert testimony is required for an employee to prove the existence of an occupational disease.  For that reason, requiring an employee to prove an occupational disease before being entitled to a medical evaluation would place too great of a burden on the employee.

PRESCRIPTION

Seidel v. Zatarains, Inc., 05-780, 927 So. 2d 557 (La. App. 5 Cir. 03/28/06).

Claims for penalties and attorney fees for the non-payment of benefits are subject to the liberative prescriptive period of one year.

The Facts

Without providing specific dates, the opinion tells us that the employee filed a 1008 seeking penalties and attorney’s fees for the alleged late payment of medical expenses and prescription expenses.  The claim was filed within three years of the last payment of medical expenses but more than one year after the date that the alleged late payment.

The Dispute

The employer contended that the claim for penalties and attorney’s fees had prescribed because it was filed more than a year after the alleged late payment.  The employee argued that the claim for penalties and attorney’s fees for the late payment of medical expenses was connected with plaintiff’s claim for medical benefits.  Therefore, he argued that the claim was subject to the three year prescriptive period from the date of the last payment of medical expenses.

The Trial Court Decision

The trial court held that, because the Louisiana Workers’ Compensation Act does not include a prescriptive period for penalties and attorney’s fees, the general liberative prescriptive period of one year applies.  Therefore, the court dismissed the employee’s claim for penalties and attorney’s fees as prescribed.