Workplace Accidents


INJURED WORKERS MUST PROVE AN ACCIDENT

On behalf of Craig Mitchell, Mitchell & Associates, A Professional Law Corporation posted in Workplace Accidents on Tuesday, August 25, 2015.


In the New Orleans workers compensation case the court made it clear that injured workers must prove an accident happened in order to get workers compensation.

The employee, Mark Tubre, made a claim for workers’ compensation benefits after he hurt his back while an employee of Automobile Club of Southern California (better known as “AAA”) on Christmas Day, 2012. He was the manager on duty and the only person at work when he either slipped or tripped on a palette as he was putting a battery on a shelf. Tubre had hurt his back before. He claimed this on the job accident aggravated his old back problem. He tried to report the slip to his supervisor who was supposed to be there that day but didn’t come in.

Just prior to Christmas and Tubre’s unwitnessed accident someone complained that Tubre was repairing and/or selling vehicles on AAA property that were not part of the fleet. After further investigation some of the allegations proved true and were in violation of AAA’s ethical code of conduct. On December 26, 2012, AAA’s director of human resources traveled to New Orleans for a surprise visit to talk to Tubre about the complaints. During this surprise visit Tubre mentioned the work related accident and injury from the previous day. He didn’t give any details about the accident and didn’t cooperate with the investigation and was fired. Tubre forgot one og the big rules of workers compensation – injured workers must prove an accident actually happened.

After a trial Judge Robert Varnado decided Tubre failed to prove the occurrence of a work-related accident and was not entitled to workers’ compensation benefits. The Fourth Circuit Court of Appeal agreed and reiterated a workers’ compensation claimant’s burden of proof:

“The employee in a compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. An employee may prove by his or her testimony alone that an unwitnessed accident occurred in the course and scope of employment, if the employee can satisfy two elements: (1) no other evidence discredits or casts serious doubt upon the workers’ version of the incident; and (2) the workers’ testimony is corroborated by the circumstances following the alleged incident. In deciding whether the plaintiff has discharged his or her burden of proof, the fact-finder should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent “circumstances casting suspicion on the reliability of this testimony.”

The Fourth Circuit then pointed out that the fact that Tubre was being investigated and that his doctor didn’t find any evidence of a new injury made Judge Varnardo’s ruling reasonable.

Tubre v. Automobile Club of Southern California, 14-0859 (La.App. 4 Cir. 2/4/15), 160 So.3d 1021


Workplace Safety in Louisiana Gets Better

On behalf of Craig Mitchell, Mitchell & Associates, A Professional Law Corporation posted in Mitchell APLC News on Sunday, January 11, 2015.


There is good news for Louisiana workplace safety. According to a recent press release by the Louisiana Workforce Commission (LWC), in 2013 Louisiana private sector employees experienced the lowest rate of non-fatal work-related injuries and illnesses in the past twelve years. Louisiana’s private sector improvement was in line with the national trend towards increased workplace safety and a lower incidence rate, for both private and public employees. Detailed and state-specific data was recently released by the U.S. Bureau of Labor Statistics and is available on their website.

Increased Workplace Safety Across Industries

As a result of this increase in workplace safety, Louisiana qualified as the second safest state in the nation, among the 41 states (and the District of Columbia) surveyed by the U.S. Bureau of Labor Statistics report upon which the LWC’s press release was based. Only the District of Columbia experienced safer rates. The voluntary workplace safety survey found that the national average for non-fatal work-related injuries and illnesses was 3.3 incidents per 100 full-time workers, but that Louisiana’s average was only 2.2, which had decreased from 2.3 in the previous year.

Louisiana’s continued decrease in workplace injury did not apply equally to all industries. Arts, Entertainment, and Recreation improved the most (2.4 incidents less, per 100 employees, than in 2012), and Utilities also saw a significant decrease in incidents (down 0.9 incidents). Transportation and warehousing (-0.7), Construction (-0.5), Manufacturing (-0.4), and Leisure and Hospitality (-0.3) also saw decreases in workplace injuries. This data demonstrates that while improvements in Arts, Entertainment, and Recreation contributed the most to Louisiana’s excellent rating, many industries saw at least some improvement in workplace safety.

Potential Results of Increased Safety

Safer workplaces can mean lower workers’ compensation insurance rates and, potentially, a less contentious claims process. In the past, Louisiana’s nationally low rates of injury and illness led the National Council of Compensation Insurance (NCCI) to recommend a 2.4% reduction in rates in 2015. The Louisiana Department of Insurance, which already reduced rates for 2014 by 5.1% at NCCI’s recommendation, is expected to announce its decision on the recommendation sometime in December.

The LWC concluded its press release by terming Louisiana as “one of the safest states in the nation to work.” These improvements may come as a result of the LWC’s own efforts, as the LWC provides confidential and comprehensive consultation to businesses of all sizes. The LWC’s SHARP program specifically provides tailored worksite safety programs to qualified small businesses. As we noted in a recent post, the LWC recently helped prepare retail employees for Black Friday.

Despite these improvements, the number of workplace injuries remains significant. Given that an estimated 2.1 million civilians are employed in Louisiana, even a 2.2% injury rate per year amounts in a significant number of injuries. Notably, 114 workers died as a result of fatal workplace incidents in 2013.

Under Reporting Is Always a Concern

Any improvement in workplace safety is important. Unfortunately some employers chose not to properly report on the job injuries. As you can see, this can ultimately help keep the employer’s workers’ compensation insurance premiums lower. If you are hurt on the job it is important that you get the treatment and benefits you are entitled to under the Louisiana Workers’ Compensation Act. If your job doesn’t report the accident so they can keep their workplace safety record clean for lowered premiums, you may be sold short.

If you are injured at your workplace, you should immediately report the incident to your supervisor and employer and, especially if the claim is contested by your employer, seek the assistance of your experienced Louisiana workers’ compensation attorney.


Louisiana’s Reimbursement Scheme Drives High Medical Costs

On behalf of Craig Mitchell, Mitchell & Associates, A Professional Law Corporation posted in Workplace Accidents on Friday, December 12, 2014.


Your employer or your employer’s workers’ compensation insurer are obligated to cover any medical care for your workplace injury.  In addition to medical expenses, any out-of pocket expenses, including mileage and prescriptions, must be reimbursed.  For outpatient services, however, Louisiana law sets out a specific reimbursement scheme that has contributed to driving high medical costs following a workers’ compensation award.

Costs Have Stabilized at a High Level

Recently, the Assistant Secretary of Labor for Occupational Safety and Health commented on the steady nationwide decrease of workplace injuries and illnesses over the last few years.  Nevertheless, medical costs for workers’ compensation remain higher in Louisiana than in other states.  This October, the Workers’ Compensation Research Institute updated its Medical Benchmarks for Louisiana, which noted that Louisiana’s workers’ compensation medical costs soared with an unusually high 8% growth over the five years prior to 2011.

Despite this growth, the Institute reported that Louisiana medical payments per claim stabilized in 2012, albeit remaining at a high level.  Hospital outpatient payments per service decreased, and medical treatment guidelines may have contributed to decreasing the number of visits per claim.  Overall, medical payments per claim decreased for both hospital and non-hospital outpatient care, but hospital outpatient care became a more significant percentage of total medical payments per claim.

Even though Louisiana medical costs have stabilized, outpatient payments per claim still average around $8,075, which is $3,000 higher than the mean of the other states studied, and $6,000 higher than the state with the lowest average payment.  Louisiana also claimed a higher number of prescriptions per claim, and a higher price per pill, resulting in more than twice the median prescription cost per claim.

Percentage-Based Reimbursement Drives High Costs

The report identified Louisiana’s hospital outpatient reimbursement scheme as a key driver of high medical costs.  In Louisiana, employers only have to pay the “usual and customary” amount for outpatient charges, as opposed to the amount actually charged.  Fortunately, Louisiana also provides a fee schedule that, in practice, stipulates that 90% of the billed charges should be reimbursed.

One result of this scheme is that employers are pressured into reimbursing at least 90% of billed charges, or risk litigation.  In other words, if an employer refused to reimburse 90% of your workers’ compensation outpatient charges, your experienced workers’ compensation attorney can help ensure that the amount your employer paid reflects the “usual and customary” charges.

However, another result of this reimbursement scheme is to drive up the number of medical payments per claim.  Because Louisiana employees receive 90% of outpatient costs for each visit, the scheme incentivizes more visits.  In comparison, a recent study found that medical costs were lower in jurisdictions where the employer was required to pay a fixed amount per claim.  The fixed-amount system does not incentivize increased visits, and the lack of vague guidelines like “usual and customary” discourages litigation.

Many view outpatient procedures as a lower-cost alternative to inpatient procedures.  However, in Louisiana, outpatient costs remain high, along with prescription costs.  An experienced New Orleans workers’ compensation attorney can help you ensure that your employer has reimbursed your medical expenses to the fullest extent that the law requires.


Louisiana Agency Prepares Workers for Black Friday with Crowd Management Tips and a “Safety Elf”

On behalf of Craig Mitchell, Mitchell & Associates, A Professional Law Corporation posted in Workplace Accidents on Wednesday, December 3, 2014.


As one of the nation’s most popular shopping days approaches, retail workers prepare for a large influx of customers.  In some extreme cases, workers can be exposed to outright violence.  More commonly, it is left to a store’s employees to prepare for and manage incoming crowds.  Without proper preparation, workers can risk injury due to stampeding crowds and spilled products littering floors.  An experienced workers’ compensation attorney can guide any injured employee through the process of how to file a workers’ compensation claim.

Getting Ready for Black Friday

To prepare Louisiana stores for Black Friday, one state commission has targeted specific stores to provide employees with safety tips.  The Louisiana Workforce Commission’s OSHA Consultation Unit (LWC) has already visited Target, Walmart, Kohl’s, Best Buy, and more.  Interestingly, the LWC provided each visited store with “Sam the Safety Elf,” whose motto is “Safety Always Matters,” to increase awareness of safety issues.  The LWC can identify potential workplace hazards and provide incentives for implementing safety programs at no cost to the employers.  The LWC encourages employers to assist qualified employees in reducing their workers’ compensation premiums.

The LWC recommends safety procedures that specifically prepare for retail events such as Black Friday.  Stores should identify and eliminate work-related hazards, and prepare a store’s physical layout for increased crowds by providing rope lines and barricades near registers.  Other stores have implemented security procedures such as buffer zones separating the door from retail lines to prevent stampeding, as well as dress rehearsals to ensure proper procedure.  Some stores have increased hours to dilute the rush of consumers.

According to the LWC, stores should ensure adequate staffing and, if necessary, hire trained security personnel to expedite service and discourage injury.  Security personnel may also be necessary to prevent customers from entry if maximum occupancy restrictions would be violated.  Finally, stores should have a contingency plan in place in case of emergency, and maintain clear lines of communication between all employees to help coordinate customers.

The LWC’s recommendations are based on OSHA’s Crowd Management Safety Guidelines for Retailers, which recommend, for example, legible and visible crowd control signs, a loudspeaker system for announcements, and spreading out popular items throughout the store.  Employees should be provided with a separate entrance, and door monitors should be assigned to prevent crowd entry.  Designated workers can be assigned to explain crowd management procedures to the incoming consumers.  Employers who fail to comply with OSHA guidelines can expose themselves to increased liability if such a failure results in a workplace injury.

Employees hoping to avoid injury can also take steps to protect themselves.  Wearing shoes with increased traction can help avoid slipping and falling.  Workers can familiarize themselves with their employer’s Black Friday procedure and communications system ahead of time.  Employees can also speak up if an employer fails to implement a necessary safety procedure, and notify security personnel if a dangerous condition or occurrence appears.

What to Do if You Have Been Injured at Work

Even if every attempt is made to avoid injury, workplace injury can still occur.  If you or a loved one has been injured at their place of work, whether on Black Friday or at any other time, please contact an experienced workers’ compensation attorney for assistance in assessing your claim and navigating the claims process.

Sending us information about your potential case does not mean we will automatically represent you – you are telling us about your situation in order for us to evaluate whether we believe you have a case which we may choose to handle on your behalf. We will review your circumstances and let you know as soon as possible whether we can discuss your potential case with you further. The information you give us is confidential and can’t be shared with anyone outside of our office.