Lousiana Trucking Employee on Workers Compensation Refuses to Comply with Treatment Plan

Suppose you're  notified that an injured employee on workers compensation  is in violation of his treatment plan? For example, suppose the employee is on worker's compensation and tests  positive for marijuana three times and negative for pain medication prescribed? 

 

The workers’ compensation law is not abundantly clear about a claimant’s refusal to comply with treatment that is not surgery related.

 

A possible statute that could be of use is Louisiana Revised Statute 23:1124 which applies to an employee’s refusal to submit to an examination or obstruct an examination requested by the employer. The statute states that when an employee refuses to submit to examination or obstructs an examination, the employee’s right to compensation and prosecution are suspended until the examination takes place. Paragraph B of the statute explains that an employer who wishes to compel a hearing will be granted an expedited hearing conducted as a rule to show cause.

 

It could be argued that an employee’s failure to comply with a treatment plan is a method of obstructing an examination, but it is unlikely the judge would interpret "examination" to mean treatment.

 

This is very little case law on this matter when treatment does not relate to surgery and failure to follow a treatment plan concerns pain medications and illegal drug use including the subsequent discharge from pain management due to that failure to follow the treatment plan.

 

 

One somewhat factually similar case I found is Blanchard v. Deta Marine Engineering, Inc. from the Louisiana 1^st circuit in 1971. Though the case is old, there are not many cases reported with such similar facts. All of the cases I found, even the most recent one from 2004, have the same standard:

 

"An injured employee cannot, willfully and unreasonably, refuse to submit to treatment, or to a program of rehabilitation. His compensation benefits can be discontinued if he is suffering from a disability which can be remedied by treatment in which he refuses to cooperate... The burden is upon the employer to prove the defense that the employee’s willful failure to cooperate with medical treatment, or his willful misconduct, is the cause of the continued disability, and the proof to sustain this defense must be clear, convincing, and conclusive."

Blanchard v. Deta Marine Engineering, Inc, et al, 252 So. 2d 695. (La. App. 1 Cir. 9/2/1971).

 

In Blanchard, the employee-plaintiff injured his left knee which required surgery. The operating physician ordered Plaintiff to begin physical therapy shortly after his surgery. Plaintiff was treated in physical therapy for several months before he stopped going to therapy. Plaintiff did not tell his doctor that he was not attending therapy. Plaintiff’s injury worsened, though Plaintiff testified in court that he did all of the exercises given to him by his doctor and his therapist. The court found that the defense did not adequately show that the employee’s failure to attend physical therapy was the reason for his worsened condition as the physical therapists were not called to testify and one physician that saw Plaintiff testified that the surgeon’s therapy plan would not have been enough to prevent the plaintiff’s condition from deteriorating. Blanchard is an appeal from a suit for benefits.

 

In the instant matter, to meet the Blanchard burden that an employee’s continued disability is due to his failure to comply with the pain management treatment plan, the employer will have to prove the case by clear, convincing, and conclusive evidence.

 

One factor to consider from the  medical records is whether  pain rating decreased while testing positive for pain medications prescribed, compared to an increase when he tested negative for it. The doctor's  testimony might be necessary to show that the employee  would be getting better had he followed the treatment plan in place.

 

 

These are ideas worth considering. If there are any other ideas you have applied, please share. Otherwise, if you would like to discuss these issues in person, feel free to call me at 318-222-2426 or e-mail me at perkins@perkinsfirm.com.

 

 

It's true there are not many followers to this blog site, but most people receive copies via e-mail. If you would like to receive a copy of this periodic blog, primarily focused on the defense of the trucking industry, feel free to sign up and you will receive an e-mail when the blog is posted. If it's helpful, read it. If not, delete it.

 

 

Take care,

Mark Perkins

Another Case of Bad Facts = Bad Law in Louisiana: Rachal v. Brouillette and the Separate Elements on Verdict Form

Rachal v. Brouillette, 12-794 (La.App. 3 Cir. 3/13/13), 111 So.3d 1137, 1142-43, writ denied, 2013-0690 (La.5/3/13), 113 So.3d 217, the Louisiana Third Circuit Court of Appeal, meeting en banc, reviewed a case involving a father who filed a wrongful death action on behalf of his minor son, Nicholas, against a motorist and the motorist's insurer in connection with a vehicle-pedestrian collision that killed the son's mother.

 

After defendants admitted liability and following the jury trial on damages was held, a jury in the Ninth Judicial District Court, Rapides Parish, awarded $2,800,000.00 in compensatory and $100,000.00 in exemplary damages.  

 

The Court of Appeal, with Chief Judge Thibodeaux writing the majority opinion, held that:

(1)          verdict form that separated general damages into one line for mental anguish, grief, and anxiety, another line for loss of love and affection, and an additional line for loss of society, service, and consortium, was not duplicative, overruling Hardy v. Augustine, 55 So.3d 1019;

(2) award of $2,500,000 in general damages was not excessive;

(3) award of $300,000 in damages for loss of financial support was not excessive;       

 

In reviewing this decision, the Court of Appeal ruled that the award of $2,500,000 in general damages was not excessive because:

1. the child was ten years old, and

2. he enjoyed a close, loving relationship with his mother though his parents were separated and he lived primarily with father,

3. his mother was extremely involved in ensuring that minor was in best environment for his attention deficit hyperactivity disorder (ADHD),

4. the minor suffered from hallucinations and suicidal thoughts and gained extraordinary amount of weight after mother's death, and

5. his father described how minor had left school more than once to visit mother's grave and cry.

 

In addition, the additional award of $300,000 in damages for loss of financial support was not excessive in wrongful death action brought on behalf of minor in connection with his mother's death in vehicle-pedestrian collision; while mother's income of $14,322 in the year she died was not dramatically high, the steady increase in her income each year suggested she would have continued to strive to improve her financial situation, mother financially contributed to minor's upbringing in maintaining joint custody with father, and jury evidently believed that mother would have provided for her son until she reached the limits of her work life expectancy, some thirty years in the future.

 

Jury Verdict Form

 

The defendants in the Rachal case, State Farm and Mr. Brouillette, argued that the trial court erred by submitting a verdict form to the jury that separated the elements of the general damage award. Specifically, the jury verdict form contained a separate line for mental anguish, grief, and anxiety, to which the jury awarded Nicholas $1,000,000 and a separate line for loss of love and affection, to which the jury also awarded him $1,000,000. Defendants asserted that these two elements were duplicative, but the Court of Appeal disagreed.

 

The court reasoned that the Louisiana Civil Code Article 2315 mandates that “a tortfeasor must compensate a tort victim for all of the damages occasioned by his act.” Compensatory damages are divided into special damages and general damages.  General damages include physical and mental pain and suffering, inconvenience, loss of gratification, and other losses of lifestyle that cannot be definitively measured with money. McGee v. A C And S, Inc., 05–1036 (La.7/10/06), 933 So.2d 770. These damages are “routinely dissected” on jury verdict forms. Id. at 774.