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August 5, 2007
When Claimant's treating physician loses privileges, he does not need consent of his employer/insurer to seek treatment by another physician in same field or specialty.
Rushing v. Winn-Dixie Louisiana, Inc., 2006 2016 (La.App. 1 Cir. 8/1/07); 2007 La. App. LEXIS 1489
Claimant’s Counsel: Albert Bensabet
Defense Counsel: James Taylor, Denise Ledet
WCJ: Warren
Panel: *Jones, Murray,Tobias (4th Circuit judges appointed by Supreme Court)
Claimant treated by pain management physician who lost his privileges. He
began treatment by another pain management physician who retired shortly thereafter.
He then was treated by the physician who assumed the retiring physician’s practice.
Insurer refused to pay medical or pharmacy bills.
WCJ found for Claimant and awarded penalties and attorney’s fees. Court of appeals reached the not surprising decision finding that the Claimant was not seeking a change of physicians in the same field or specialty: “...he did not choose to discontinue treatment with any of these physicians. For reasons unbeknownst to Mr. Rushing and due to circumstances beyond his control, he lacked a treating physician and was twice forced to re-select a physician.” Court affirmed the award in all respects.
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July 20, 2007
House Bill 2549 Reintroduced on July 15th
H.B. 2549 Section by Section Analysis by Workers Injury Litigation & Advocacy Group
H.B. 2549 One Page Analysis by Workers Injury Litigation & Advocacy Group
H.B. 2549 Myths v, Facts by Workers Injury Litigation & Advocacy Group
H.B. 2549 List of Supporters from Workers Injury Litigation & Advocacy Group
H.B. 2549 Press Release by Workers Injury Litigation & Advocacy Group
June 27, 2007
Claimant Must Show Prior Demand and Wilful Nonpayment to Accelerate Benefits Pursuant to § 1333
Dyke v. Time Warner Cable, 42,216 (La.App. 2 Cir. 6/27/07); 2007 La. App. LEXIS 1355
Judgment was rendered in favor ov Claimant on June 21, 2006. Payment of past due benefits, penalties and attorney’s fees were tendered on August 22, 2006. On that date, Claimant signed a satisfaction of judgment acknowledging payment of all past due indemnity as of that date. The next day, Claimant filed a motion to accelerate pursuant to § 1333. WCJ rendered judgment on the motion in the amount of $183,610, the value of SEB payments for the remainder of SEB eligibility.
The Second Circuit reversed. The court reviewed the jurisprudence that has “placed a protective gloss on Section 1333 to temper the harshness of its forfeiture penalty. It is the claimant's burden to prove the wilful withholding of benefits by the employer and to demonstrate that notice of such delinquency was given in the form of a demand for payment.” The fact that the Claimant signed a satisfaction of judgment the day before the motion to accelerate was filed indicated that there were ongoing negotiations, thus negating the wilfulness requirement. The parties stipulated that there was no prior demand for payment.
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June 20, 2007
Restitution Pursuant to § 1208 is Permissive Rather Than Mandatory
Baker v. Stanley Evans Logging, 42,156 (La.App. 2 Cir. 6/20/07); 2007 La. App. LEXIS 1309
Employer and Carrier filed 1008 alleging that Claimant was capable of earning 90% of his average weekly wage and that he had committed fraud by not reporting post-accident earnings. The WCJ held that the Employer failed to carry its burden of proving either contention.
The Second Circuit reversed, finding that Claimant committed fraud. Mr. Baker had failed to report any income from numerous employers or to even disclose the fact of employment. He contended that his only income was from produce and fishing worms, though he had numerous outside employers during a 42 month period. The court didn’t believe that Claimant didn’t understand the requirement of reporting income on the 1020 forms. “Mr. Baker is indeed a sophisticated worker who is a high school graduate with five years of college at LSU. Moreover, Mr. Baker is also a relatively astute businessman having been involved in significant timber and land transactions throughout his career.” However, noting that restitution is permissive rather than mandatory, the court declined to order it.
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Claimant Must Prove an Inability to Perform Any Work to be Eligible for Temporary Total Benefits
Pardee v. Forest Haven Nursing Home, 42,321 (La.App. 2 Cir. 06/20/07); 2007 La. App. LEXIS 1329
Claimant, a nurses’ aide, injured her wrist at work. She was treated by an orthopaedic surgeon and eventually referred to Dr. Milstead, a hand surgery specialist. He treated her for several months and then issued a report saying that she was at MMI, but that she might benefit from an orthoscope, to visualize the wrist and maybe render a further diagnosis. The employer had Claimant examined by a Dr. Morgan, who could find nothing wrong with her and opined that she could perform her nurses’ aide job without restrictions. After receipt of that report, the employer terminated benefits. Dr. Milstead then wrote a supplemental report saying that he agreed with Dr. Morgan, except that he didn’t believe that Claimant could go back to the strenuous duties of a nurses’ aide. He placed lifting and repetitive motion restrictions on her. Then the employer sought a State IME which was done by Dr. Bilderback, who could return to work as a CNA even though it might cause her some pain.
The WCJ found for the Claimant, awarded TTD for approximately two months after the termination, ordered that the Employer provide the orthoscopic surgery, and awarded penalties and attorney’s fees. On appeal the court reversed the WCJ except to affirm the award so far as it dealt with the orthoscopic surgery. The court pointed out that Claimant could not be eligible for TTD since that required that she prove by clear and convincing evidence that she could perform no work at all. Even Dr. Milstead did not rule out any work at all. Since she was not entitled to the TTD award, the penalties and attorney’s fees awards were also reversed. There was no mention in the opinion of SEB entitlement.
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Third Circuit Computes AWW Based on Four Weeks Before Injury Becomes Disabling
Hinnard v. Securitas Sec. Servs. USA, Inc., 07-0045 (La.App. 3 Cir. 06/20/07); 2007 La. App. LEXIS 1291
Claimant who had undergone an unrelated double lung transplant worked a 24-hour week as a security guard when he was injured. He was unable to work for approximately three months, during which period he received compensation. He then returned to work and eventually began working as a 40-hours per week job as a cashier. His symptoms connected to the compensable accident eventually became disabling and he left work. The issue then was whether he was entitled to benefits based on the 40-hour week he was working when his condition became disabling, or on the 24-hour week that he worked at the time of the accident. The WCJ held that the average weekly wage at the time the injuries became disabling was the appropriate yardstick with which to measure the injured worker’s entitlement to benefits.
With Judge Peters dissenting, the Court of Appeals affirmed. In a classic example of what can go wrong when one lifts an opinion rendered in one area of the law and applies it to a completely different issue, the Court based its decision on Sevin v. Schwegmann Giant Supermarkets, 94-1859, pp. 4-5 (La. 4/10/95), 652 So.2d 1323, 1325-26. In that decision the Supreme Court held that in a case involving a developing injury prescription does not begin to run until the injury becomes disabling. What that case is that it ruled for the first time that the developing injury rule was not defeated by an initial period of temporary disability. There is no support in that decision for using the average weekly wage at the time the injury becomes disabling to compute the amount of indemnity benefits. Judge Peters, in dissent, points out that the statute requires that wages earned during the four full weeks before the date of injury are to be used to calculate the average weekly wage. The use of the date of disability is a useful tool in occupational disease cases, where it is impossible to pinpoint a date of injury.
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May 4, 2007
Inability to Identify a Specific Precipitous Event Causing Injury is Fatal to Claim
Weekly v. LWCC, 2006 1249 (La.App. 1 Cir. 5/4/07); 2007 La. App. LEXIS 881
Claimant testified that during a business trip in Mississippi, he "started feeling" back pain when he was getting in and out of his car and unloading his files and laptop computer. Several weeks later, while in Atlanta on a business trip, he went to his hotel room, unloaded his "stuff," and went to bed. The next morning when he tried to get out of bed, he could not move and had pain all the way down to the heel on his right leg. The WCJ held that Claimant proved an “accident” and awarded benefits.
The Court of Appeals reversed. The Court held that although courts have consistently
interpreted the work-related accident liberally, the injured worker is still
required to identify the event marking the time when one can identify an injury.
“Although Mr. Weekly's pain may have begun while he was working, he was unable
to identify a single, precipitous event that directly and proximately caused
his back condition as required by La. R.S. 23:1021.”
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May 2, 2007
Court Must Examine Whole Record of First Trial to Grant Exception of Res Judicata in Second Trial
Williams v. A-Jax Lumber Co., 07-1 (La.App. 3 Cir. 05/02/07); 957 So. 2d 249; 2007 La. App. LEXIS 794
Claimant attempted to introduce FCE report in previous trial (Williams v. A-Jax Lumber Co., 05-935 (La.App. 3 Cir. 5/10/06), 930 So. 2d 300, writs denied, 06-1486, 06-1498 (La. 9/29/06), 937 So. 2d 865, 866). Report was excluded because it had not previously been provided to defense counsel. After the first trial, Claimant submitted the bill for the FCE to the Defendants who refused to pay it. Claimant filed a second 1008, while the first case was on appeal. Defendants excepted to the new claim, contending that it was barred by res judicata. The WCJ granted the exception.
Claimant argued that it was the admissibility of the FCE report that was at
issue in the first trial, not the bill for the FCE. The Court of Appeal agreed
that the matter of the payment of a medical expense, i.e. the FCE, would not
be precluded by res judicata simply because an attempt was made to submit it
into evidence. However, it .reversed, the WCJ’ decision because the Defendants
failed to introduce the record of the first proceeding into evidence. “When
a party raises an objection of res judicata, the court must examine not only
the pleadings but also the entire record in the first suit, to determine whether
the second suit is, in fact, barred by res judicata. It was the Defendants'
duty to introduce the record from the first suit as the parties raising the
exception of res judicata. Id. Without this evidence, Defendants failed in their
burden of proof.”
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Benign, Everyday Activities Can Give Rise to Accident
Wyble v. Acadiana Preparatory Sch., 07-0091 (La.App. 3 Cir. 05/02/07); 956 So. 2d 722; 2007 La. App. LEXIS 797
Claimant, a teacher’s aide, lifted a heavy desk at work on Thursday. By the time she got home that evening, she experienced stiffness in her back. On Friday, she felt an immediate pain when she straightened up from bending over a child’s desk. She reported the pain to the teacher with whom she was working shortly thereafter. On Monday, she called the school administrator and told him of her back problems and that she was going to seek medical treatment.
Ms. Wyble saw her family physician who told her to take off work the rest of the week. She called the administrator again and asked him if the school would pay for her medical treatment. She was told that the school had decided that it was not responsible for medical treatment. She began treatment from free sources and was diagnosed with a herniated disc at L4-5. She was released to light duty after about 6 months. She asked the school for a light duty position but the school never responded.
The employer refused to provide medical benefits or pay any indemnity, contending that there was no compensable accident. The WCJ found for the injured worker, awarding indemnity benefits increased by 50% pursuant to § 1168., $4,000 in penalties and $6,500 in attorney’s fees. The Court of Appeals affirmed and added $5,000 in attorney’s fees for work done on appeal. The court held that the definition of “accident” includes “routine movement or tasks that the employee regularly performs, if the claimant is able to identify with some particularity as to time, place and manner, the objective manifestation of the accidental injury.”
The Court also affirmed the penalty of 50% of indemnity for failure to secure workers’ compensation as provided by § 1168. Although the Claimant had not included this cause of action in its pretrial statement, the fact that the school stipulated that it had no insurance and was not a qualified self insured served to enlarge the pleadings.
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.Injured Worker's Claim Successful Even Though He Could Not Point to a Specific Time or Activity That Caused His Injury
Doyle v. Pepsi Bottling Group, Inc, 07-59 (La.App. 3 Cir. 5/2/07); 956 So. 2d 709
Claimant could not remember the exact date on which he was injured, and could not point to any specific event as being his accident. He “noticed some discomfort in [his] neck” toward the end of his shift. He then testified that he was bent over a display when he felt discomfort in his neck that he described as a “crick”. He did not report the “accident” immediately. He went home and took a hot bath. He worked the next day and the pain increased. The next morning (Saturday) his condition was significantly worse, so he telephoned his immediate supervisor. The company policy required him to report his accident immediately to an 800 number. When his supervisor ascertained that he had not done so, he was advised not to. He saw a physician that day.
The employer defended the case on the grounds that the injured worker had failed to prove the occurrence of an accident. He didn’t report an accident immediately, he couldn’t remember how it happened or when, and he billed his first medical treatment to his private insurance.
The Workers’ Compensation Judge, citing well settled jurisprudence, held that when no other evidence casts doubt or discredits an injured worker’s testimony regarding the occurrence of an unwitnessed accident, that alone is sufficient to establish that the accident occurred.. The Court of Appeal affirmed, finding that the WCJ acted within her broad discretion in choosing to believe the injured worker over the version of events put forth by the employer.
The WCJ also awarded penalties and attorney’s fees. The Court of Appeals affirmed this holding as well. It was reasonable to conclude that the employer did not reasonably controvert the injured worker’s claim. It did not sufficiently investigate the claim, choosing instead to rely on its own version of the facts.
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April 11, 2007
Claimant Wins Unwitnessed Accident Case
Hosli v. Rent-A-Center, Inc., 2006-1466 (La.App. 4 Cir. 04/11/07); 957 So. 2d 207; 2007 La. App. LEXIS 719
This is an unwitnessed accident case. Claimant, who was a market manager overseeing several furniture rental stores, contended that he was injured at work while moving a refrigerator in an effort to get the serial number for an inventory check. He did not report the injury immediately because the pain was comparatively minor. Later that day, Claimant was demoted to store manager. He contended that when he got home that evening, his pain began to worsened dramatically. He sought treatment the next day (Saturday). He reported the accident the day after that (Sunday).
Claimant introduced the medical records that showed he consistently told health care providers that he had hurt his back while moving a refrigerator at work. The WCJ found the Claimant to be credible and that his testimony was corroborated by the medical evidence. However, the court chose not to award penalties or attorney’s fees, finding that it was not unreasonable for the Employer to contest the compensability of the unwitnessed accident.
The Fourth Circuit affirmed: “Louisiana courts consistently have interpreted the work-related accident requirement liberally.” Williams v. Regional Transit Authority, 546 So. 2d 150, 156 (La. 1989). ‘A plaintiff's testimony alone may sufficient to establish that an accident occurred provided that: (1) no other evidence discredits or casts serious doubts upon the worker's version of the incident; and (2) the worker's testimony is corroborated by the circumstances following the alleged incident.'” Blair v. Wal-Mart Stores, Inc., 01-2211 (La. App. 4 Cir. 5/15/02), 818 So. 2d 1042, 1047, citing Bruno v. Harbert Intern. Inc., 593 So. 2d 357, 361 (La. 1992). Hosli v. Rent-A-Center, Inc., 2006-1466, P. 6
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Injured Worker's Misstatement of Mileage Not Fraud; Penalties & Attorney's Fees Awarded
Porter v. Pellerin Constr. Co., 06-949 (La.App. 5 Cir. 04/11/07); 2007 La. App. LEXIS 711
Claims adjuster noticed discrepancy in mileage requests and investigated the distances involved. When he determined that the distances reported were approximately twice the actual distances, he telephoned the claimant who said that he was unaware that his mileage estimates were inaccurate.
At trial the Claimant’s sister testified that she took Claimant to the doctor’s office at first because he did not have a functioning vehicle. She made out the mileage log and included the mileage from her house to the Claimant’s then to the doctor’s, back to the Claimant’s and then back to her home. The Claimant testified that his odometer didn’t work and so he simply used the log prepared by his sister.
The WCJ found the Claimant and his sister to be credible. Furthermore, she found that the insurer had not presented sufficient evidence to reasonably controvert the claim, and awarded $5,000 in penalties and $5,000 in attorney’s fees. The Court of Appeal affirmed.
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Fraud & Forfeiture Penalties & Attorney's Fees
Failure to File PreTrial Statement Timely Fatal to 1208 Defense
Ocon v. Regency Motors of Metairie, LLC, 06-834 (La.App. 5 Cir. 04/11/07); 957 So. 2d 816; 2007 La. App. LEXIS 705
Claimant’s Atty - Charlsey Wolff
Employer’s Atty - Collins C. Rossi
WCJ - Grout
Panel - Dufrene, *Rothschild, Guidry)
Employer delivered pretrial statement, witness and exhibit lists to Claimant’s counsel’ office on the day before Good Friday. Trial was scheduled to start the following Monday. On the day of trial the employer sought to introduce several surveillance tapes and to call the investigator as a witness. Claimant objected and WCJ sustained the objection (granted the motion in limine). Court of Appeal affirmed, holding: “Under the circumstances presented here, where defendant failed to file its pretrial statement and exhibit list until the date of trial and only submitted the requested evidence to opposing counsel four days before trial and immediately prior to a holiday weekend, we find no abuse of the trial court's discretion in striking the introduction of these exhibits and testimony.” Ocon v. Regency Motors of Metairie, LLC, 957 So. 2d 816
The WCJ also ruled and the Court of Appeal affirmed that any misstatements made by the injured worker as to his prior medical history were the result of his poor command of English and did not constitute false statements in an attempt to gain a benefit. The WCJ also awarded penalties and attorney’s fees which award was reversed by the Court of Appeal. The Court of Appeal found that the employer reasonably controverted the claims made by the injured worker in that 1.) the claimant originally reported only a finger injury and did not report a back injury to any health care provider until the third visit; 2.) the accident was unwitnessed; and 3.) there were discrepancies in the claimant’s accident history.
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April 7, 2007
Firefighter study - Harvard researchers recently published a study in the New England Journal of Medicine that suggests that firefighters face a greater risk of dying of heart problems while fighting fires than was previously recognized, with the risk of a heart-related death while fighting fires being up to 100 times higher than at other times. About 100 firefighters die in the line of duty annually, and nearly half those deaths are due to heart disease.
Claimant Wins Heart Attack Case in Third Circuit
Smith v. Kinder Ret. & Rehab. Ctr., 06-1480 (La.App. 3 Cir. 04/04/07); 954 So. 2d 365, 2007 La. App. LEXIS 650
Claimant contended that her heart attack was compensable under Louisiana Revised Statutes, Title 23, § 1021 (7)(e) (now 1021(8)(e). That statute requires clear and convincing proof of a two-prong test: (1) that a heart attack be caused by on-the-job physical stress that is extraordinary when compared to others who are engaged in similar occupations and (2) that the physical work stress and and not some other source of stress or preexisting condition, was the predominant and major cause of the heart attack.
Ms. Smith was a nurse’s assistant at a nursing home. She was sixty years old and had been employed for approximately twenty-two years. She had suffered a heart attack at home a year earlier but had returned to work in a light-duty capacity where she was to assist another CNA, or be assisted, in caring for patients rather than doing the work on her own as she had previously done. On the day of her heart attack, she accompanied a patient to a physician’s appointment in New Orleans. She rode in a van from Kinder to N.O. without another nurse’s assistant. The driver of the van was a contract driver and not an employee of the nursing home. He offered no assistance other than driving the van.
When they got to the physician’s office they were forced to wait for over six hours. Then, Ms. Smith was called to the telephone. When she returned, her patient had disappeared. She finally located him in the men’s room, covered with his own feces. He became uncooperative and belligerent. He was over 6 feet tall, while the Claimant was only 5' 2" tall. During her hours long struggle to get the patient cleaned and dressed in a borrowed set of scrubs, she experienced shortness of breath and felt as though she would pass out. When finally called at 4:30 P.M. for the 8:30 A.M. appointment, she could not accompany him. She lost consciousness and was driven back to Kinder where she was met by an ambulance.
The WCJ found that the activities of the day were extraordinary. He rejected the Employer’s contention that the job stress could not have been the "predominant and major cause “ of the heart attack because the Claimant had a pre-existing heart condition. He found that the work was extraordinary. He also relied on a physician’s opinion that “it was not unreasonable to expect that the additional stressors ... had ‘precipitated an acute MI event.’” The physician specifically opined: “In other words, Ms. Smith's work-activity as a nurse's aide, attending to the resident at the Lyon's Eye Clinic in New Orleans[,] was the predominant and major cause of the heart attack.”
The court of appeal affirmed. The Court noted that in a workers' compensation case, the determination of causation and disability is legal rather than medical. It therefore approved the WCJ’s decision to give more weight to the Claimant’s physician, rather than the Employer’s even though the latter was a cardiologist and the former was not.
As to the first prong of the test, the Court of Appeal agreed with the WCJ that “one were to put the task of cleaning a soiled patient on a continuum to reflect normal on one end and extreme on the other, the New Orleans episode would bump up hard against the latter.” Thus the first prong was met.
The second prong was also met. The Employer contended that since the Claimant had a previous heart attack, the on-the-job stress could not have been the predominant and major cause as required. The Court of Appeal responded that the legislature did not intend to completely eliminate heart-related injuries but to exclude from coverage an employee who just happens to have a heart attack while performing his job. The phrase "predominant and major" is not a "magical charm" to determine whether the burden of proof has or has not been met.
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S.E.B Burden of Proof - Inability to earn 90% of Pre-Injury Wages
Many workers’ compensation lawyers have faced the problem of how to prove the negative - the supplemental earnings benefits threshold requirement that the injured worker is incapable of earning 90% of his pre-injury wage. It is not until this burden is met that the burden shifts to the employer to show that there is a job available to the worker that is within his ability to perform. In many cases, once it is apparent that the worker is unable to return to his pre-injury occupation, there is an assumption that the burden is met. But that is not always the case.
A new case from the Second Circuit wrestles with this problem, and sets forth some guidelines. The injured worker in Lee v. Heritage Manor of Bossier City, 41,828,(La.App. 2 Cir. 03/14/07); 2007 La. App. LEXIS 453, had returned to her job of injury with restrictions, but was terminated for “insubordination and excessive absenteeism”. There was evidence that while back at work, her restrictions had been exceeded.
Judge Hendry dismissed her claim for post-termination benefits. The Second Circuit reversed:
“The trial court specifically found that Lee was unable to perform her pre-injury job and that after she returned to work in February of 2005, Lee was asked to perform job duties that were beyond her job restrictions. That was enough for Lee to establish her prima facie case of entitlement to post-termination SEBs, and to shift the burden to Heritage Manor. It is of no moment that Lee was fired from her adjusted position because that position required tasks that exceeded her job restrictions.
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Supplemental Earnings Benefits
March 20, 2007
Is the Second Circuit ready to expand Weber?
Two recent cases indicate that at least two judges on the Second Circuit are ready to expand Weber.
In Weber v. State, 93-0062 (La. 4/11/94); 635 So. 2d 188; 1994 La. LEXIS 995, the Supreme Court announced an exception to the exclusive remedy provisions of our workers’ compensation scheme. Mr. Weber died partly as a result of a calculated decision by his employer’s risk manager to deny very costly medical procedures. That decision was based on the employer’s calculation that it would be less expensive to pay the death claim than to provide the treatment.
The Supreme Court reversed the decision of the lower courts that had granted an exception of prematurity:
We hold that the State's alleged conduct in intentionally and arbitrarily denying necessary medical expenses, if proved, may result in liability for damages beyond the remedies provided in the Workers' Compensation Act, when the conduct and the resulting injury does not occur in the course of employment and only marginally arises out of employment, and when the employer knew to a substantial certainty the denial would cause death that would not otherwise have occurred. This is a narrow exception to the general rule that penalties and attorney's fees are the exclusive remedy for the employer's misconduct in handling the administration of compensation claims. The exception applies only when there is intentional conduct and when the employer acts arbitrarily despite knowledge that death is substantially certain to follow.
Weber v. State, 635 So. 2d 188, 194
In a now infamous footnote 9 to the above cited case, the court limited its holding:
We reserve for another day the decision on whether the exception would apply if the employer arbitrarily denies payment of necessary medical expenses despite knowledge that a significant worsening of the employee's condition is substantially certain to follow the denial.
The first case to test the limitation in that footnote to reach the Supreme Court was Kelly v. CNA Insurance Company, 98-0454 (La. 3/12/99), 729 So. 2d 1033. In that case, the plaintiff contended that the failure and arbitrary refusal to provide medical treatment caused her carpal tunnel syndrome to worsen, and that the employer knew or should have known that such result would follow. The trial court dismissed plaintiff's claims with prejudice, holding that her remedy was barred under the exclusive remedy provisions of the Louisiana Workers' Compensation Act. The Second Circuit Court of Appeals, in an en banc hearing, reversed and remanded. On writs, the Supreme Court reversed the court of appeals and dismissed the petition. The court found that held that plaintiff’s condition was not life threatening or subject to significant worsening due to delay in medical treatment. Therefore, she was limited to the remedies provided by the Workers' Compensation Act.
In numerous cases decided since then, our courts have refused to expand the Weber rationale to non-death cases. In two recent cases, however, dissenting judges in the second circuit have indicated a willingness to do so:
First, in a dissent from the majority decision in Dupree v. Dixie Carbonic, Inc., 35,968 (La. App. 2d Cir. 5/10/02), 817 So. 2d 484, Chief Judge Brown opined:
In Kelly, supra at 1039, the supreme court found that "the employer's arbitrary denial or delay of medical treatment (for Carpal Tunnel Syndrome) would not result in death or a significant worsening of the employee's condition." In the instant case, the petition alleges a significant worsening and implies a life-threatening situation involving a back injury as opposed to carpal tunnel syndrome. The allegations of the petition must be accepted as true for purposes of the exception of no cause of action. Thus, Kelly, supra is distinguishable on the facts, and I believe that the trial court erred in granting defendants' exception of no cause of action. See Stevens v. Wal-Mart Stores, Inc., 29,124 (La. App. 2d Cir. 01/24/97), 688 So. 2d 668, writ denied, 97-0671 (La. 05/09/97), 693 So. 2d 768. The proper procedural vehicle to test whether there is sufficient evidence to put the matter to trial is a motion for summary judgment, not an exception of no cause of action. I respectfully disagree with the majority opinion.
Dupree v. Dixie Carbonic, Inc., 817 So. 2d 484, 487
Then, in Hayes v. Gallagher Bassett Servs., 41,579 (La.App. 2 Cir. 12/13/06); 2006 La. App. LEXIS 2799, 945 So.2d 911, Judge Drew issued a dissenting opinion:
Mr. Hayes is facing a lifetime of pain, with little or no hope of recovery from his injuries. The arbitrary lack of treatment materially worsened his condition. With respect, I dissent, finding:
1. That the unusual facts of this case merit a reasonable extension of the Kelly rationale, thereby allowing the plaintiff his day in court; and
2. The plaintiff's evidence should be tested by a motion for summary judgment, rather than an exception of no cause of action. See Chief Judge Brown's dissent in Dupre, supra.
The opinion of the Second Circuit in Kelly v. CNA Insurance Company, 29,455 (La.App. 2 Cir. 01/23/98); 706 So. 2d 198; 1998 La. App. LEXIS 59 was split 5-4. Judge Norris wrote the majority opinion, and he was joined by Judges Norris, Stewart and Williams. Judge Brown concurred in the result. Judges Carraway, Peatross, Gaskins and Hightower dissented. Judges Norris and Hightower are retired now. The new judges on the court are Judges Lolley and Moore, who have not yet been heard on this issue, as neither have been on either the Dupree or the Hayes Panel.