The Louisiana Third Circuit Court of Appeal recently ruled on the case entitled Martin v. Doerle Food Services, LLC, 2021-94 (La. App. 3 Cir. 6/2/21), 2021 WL 2217087, which discusses the arbitrary and capricious standard. In the Martin case, the plaintiff, Mr. Martin, argued that his employer, Doerle Food Services, was arbitrary and capricious after it terminated his benefits. Prior to the termination, an Independent Medical Examiner (IME), Dr. Lindemann, concluded that Mr. Martin no longer needed further medical treatment and could return to work. Doerle Food Services relied on this r ..read more

There is more to settling a case than getting everyone to agree to a number that will settle the claim. Offering an amount that the other side will accept is only the start of the process. A lot of things go into reaching that perfect – and trouble free – settlement. Below are some specific tips and methods for settling a claim:   Employer Approval You must get the approval of the employer prior to the settlement. Without the employer’s pre-approval of the settlement amount, there is no settlement. The court will not accept any settlement that does not have the employer’s written approval ..read more

Proof of disability necessary to support entitlement to indemnity Moya v. Lucas, 20-329 (La. App. 5 Cir. 3/24/21), 2021 WL 1114293 Mr. Moya filed Disputed Claim for Compensation asserting that he was entitled to compensation benefits due to a work-related injury in January 2018, from which he claimed to have suffered fractures of his spine resulting in two surgeries and other medical treatment. Mr. Moya had fallen from the roof of a private home, while he claimed to be working for Mr. Lucas. Mr. Lucas denied that Mr. Moya was an employee. Mr. Lucas claimed that he only retained Moya, when a jo ..read more

So, the claimant is released to light duty work. What do I do now? I write to share my recommendations and response to this question because this is one of the most frequently asked questions. First of all, what was claimant’s original job description, and is the claimant physically capable of returning to the original pre-accident job? If so, my opinion is that no further benefits are owed regardless of availability of the prior job because the claimant is no longer disabled from earning his pre-accident wages. Then, a LWC-WC-1002 needs to be completed modifying the benefit status. Be sure to ..read more

Are your claimants completing the Employee Certificate of Compliance 1025 form? In this post-COVID world, along with the increase of weekly unemployment benefits, we have noticed an increase in claimants receiving unemployment benefits, but failing to report the benefits. Under La. R.S. 23:1225(B) no workers’ compensation benefits are payable for temporary or permanent total disability or supplemental earnings benefit for any week in which the employee has received, or is receiving, unemployment benefits. The Employee Certificate of Compliance makes claimants aware of this provision and warns ..read more

Louisiana Supreme Court Clarifies the Arrant Decision Regarding Eligible Benefits in Hearing Loss Cases The hearing loss issue made its way back to the Supreme Court recently in Hartman v. St. Bernard Parish Fire Dept. and FARA, 2020-00693, (La. 3/24/21). The Claimant, who was employed by St. Bernard Parish Fire Department, alleged he was exposed to injurious levels of noise during the course of his employment which resulted in permanent hearing loss. His treating physician opined that repeated exposure to loud noises for extended periods of time, from 1990-2017, was likely a contributing fact ..read more

Hypotheticals and Ruminations Calculating the proper Average Weekly Wage (AWW) is a critical part of any compensation claim. When miscalculating the AWW can give rise to an underpayment of indemnity, inevitably leading to a penalty claim, you only have one chance to get the calculation perfect. You will have the protections of the 1002 process available to you, if you satisfy all the various requirements, but it is still best if you learn how to calculate AWW correctly to avoid the need to rely on the 1002 process. Rather than rely upon a restatement of the law to show how it applies to the in ..read more

Document, document, document Have you ever received the file from another adjuster only to realize that the adjuster never documented their file? Were you ever told by your defense counsel that you are likely going to have to pay penalties on an issue, because there is nothing in the claims file documenting your reasons to allow us to argue that they were reasonable? The goal would be that another adjuster or supervisor or a defense attorney picking up your claim should be able to review your claim notes and take from them exactly what actions you took and why you took them. The reasons why yo ..read more

What is an unconditional tender, and what is the problem with a condition upon a settlement check? Very few cases have caused this much concern recently as the Louisiana Supreme Court’s ruling in Zinn v. Zagis, USA, LLC, 307 So.3d 193 (La. 12/322/20). In that case, the parties reached a full and final settlement, and the carrier presented the settlement check to counsel for Mr. Zinn. On the back of the settlement check was the following language, “Notice to Injured Workers Being Paid Disability or Supplemental Benefits. By endorsing this check, I certify that I have not worked or earned wages ..read more

Surveillance is one of the most important weapons in your workers’ compensation arsenal, but it is important to know when and how to properly use it to build a fraud claim, understand the employee’s true limitations, etc. Some adjusters or claims managers may order surveillance of a claimant too quickly or without properly tailoring the surveillance around the facts of the workers’ compensation claim. It is also important to remember that just because you have surveillance of a claimant doing certain activity, this in and of itself does not prove fraud. We have to show that the claimant has in ..read more