Worker’s Comp Death Benefits Claim Survives Dismissal

The difference between the amount charged and the amount paid for medical treatment can be substantial. Knowing the dollar amount of the medical specials that a plaintiff will be allowed to seek at trial is often critical in case evaluation and resolution. In this context, the Louisiana Supreme Court provided a “bright-line” rule in Bozeman v. State, 03-1016 (La. 7/2/04), 879 So. 2d 692, that a plaintiff can only seek the amount actually paid for medical treatment, when it is funded by Medicaid. Our state’s highest court then added, in Simmons v. Cornerstone Investments, LLC, 18-0735 (La. 5/8/19), 282 So.3d 199, that only the amount actually paid for medical specials may be sought, when it is funded by workers’ compensation insurance. The “written off” amount is considered a “phantom charge” that the plaintiff will never pay. Some questions remain as to how courts will apply the holding and analysis of Simmons.

The rationale behind Simmons is that any discount in the amount of medical expenses given to the workers’ compensation carrier does not constitute a “collateral source” because the plaintiff did not give anything in exchange for the discount. Roughly six months after Simmons, the Louisiana First Circuit Court of Appeal reversed the trial court’s denial of the defendants’ motion in limine seeking to exclude evidence of the plaintiff’s total past medical expenses. Love v. Nelson, 2020-1050 (La.App. 1 Cir. 1/13/21), 2021 WL 118936, *1. Relying solely upon Simmons, the appellate court stated, “[T]he amount of medical expenses charged above the amount actually incurred is not a collateral source … . Accordingly, we find the trial court abused its discretion, and the motion in limine is granted and evidence of medical expenses not actually owed and paid by or on behalf of plaintiff … is excluded from evidence at the trial.” Id.

Federal courts, relying upon Simmons, have held that the collateral source rule does not apply to third-party-funded past medical expenses. See Collins v. Benton, Civ. A. No. 18-7465, 2021 WL 638116, *5, 8 (E.D. La. Feb. 17, 2021). However, see Lee v. United Rentals, Inc., Civ. A. No. 18-977, 2021 WL 2184763, *3 (M.D. La. May 28, 2021), where the court granted the defendant’s motion in limine to exclude evidence of the plaintiff’s past medical expenses not paid by workers’ compensation. Only the amounts paid by the employer/workers’ compensation carrier would be presented to the jury in support of the plaintiff’s past medical expenses. The court then added:

“However, there are two matters left in contention: first, may the Plaintiff offer evidence of the amounts charged by Plaintiff’s providers in connection with his back injury which [the employer] refused to pay? Second, may Plaintiff present evidence of the market rate for Plaintiff’s future medical needs or is he relegated to the amounts set out in the Workers’ Compensation Fee Schedule? As to both items, Simmons is not controlling.”

In other words, the federal court in Lee found that Simmons applied only to past medical expenses, but it did not apply to future medical expenses (i.e., the plaintiff would be allowed to present the full amount of anticipated future medical charges to the jury). As a federal court sitting in diversity, the Lee court applied the law of the state. Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The findings in Lee may be correct, but, until it is definitively resolved by legislative act or by the Louisiana Supreme Court, parties will likely continue to debate what impact the reasoning of Simmons will have as to future medical charges past the date of trial. If, as held in Lee, the reduced workers’ compensation rate is irrelevant to future medical specials, then plaintiffs will seek the full future medical charges. This blog does not address the potential impact of the “Civil Justice Reform Act of 2020” which can reduce a plaintiff’s ability seek full medical charges for cases arising after January 1, 2021 in some circumstances.

In Million v. Exxon Mobil, et al., plaintiff was diagnosed with cancer and pulmonary embolisms in 2016. Plaintiff had worked in the chemical industry for 40 years. In his suit, filed in the United States Middle District Court, plaintiff alleged that long-term exposure to toxic chemicals during his employment caused his cancer. While the suit alleged that Million’s former employers created an unsafe work environment, he admitted in deposition that he was provided both safety equipment and safety training during his employment.

Andrew Blanchfield, managing partner at Keogh Cox, represented one of the former employers and filed a motion for summary judgment seeking to enforce the protections of Louisiana worker’s compensation law. Under the law, worker’s compensation benefits are generally an employee’s exclusive remedy against an employer for work-related injuries or illnesses. An employer is therefore entitled to immunity from tort claims unless the employee can prove that employer committed an “intentional act.”

To prevail under an intentional act theory, a plaintiff is required to show that the employer’s act was “intentional” and “substantially certain” to result in injury to the plaintiff. In support of the motion to enforce immunity, the former employers cited to plaintiff’s admissions in deposition as to the efforts made for his safety and to the absence of evidence sufficient to show intentional conduct substantially certain to cause injury. The district court granted the motion and dismissed plaintiff’s claims. This month, the dismissal was upheld by the United States Fifth Circuit Court of Appeal in Million v. Exxon Mobil Corp., Exxon Chem. Co./ Exxon Ref., No. 20-30002, 2020 WL 7054051 (5th Cir. Dec. 1, 2020).

This case illustrates the interplay between general Louisiana tort law and the Louisiana worker’s compensation law and shows that courts will require substantive evidence of an intentional act to maintain a tort suit against an otherwise immune employer.

Chelsea Payne is an associate at Keogh Cox and has been practicing for three years. Her practice mainly relates to construction law and complex litigation. Chelsea enjoys playing tennis and spending time with her family.

The question addressed in MR Pittman Group, LLC versus Plaquemines Parish Government, 2015-0396 (La.App. 4 Cir. 12/2/15) was whether the five-year peremptive period set by La. R.S. 9:5607 displaces Louisiana’s general one-year prescriptive period set by La. C.C. art. 3492, when applied to tort claims against design professionals. Finding a contractor’s claim against the project engineers prescribed, the MR Pittman court held that the one-year prescriptive period governs tort claims against design professionals.

La. R.S. 9:5607 explicitly provides a peremptive period that extinguishes all claims against architects, engineers and other design professionals five years after the project is completed, thus limiting design professional liability associated with the project. The MR Pittman plaintiff/contractor argued that the statute also eliminates the one-year prescriptive period and instead creates a special five-year prescriptive period, which allowed the contractor up to five years to bring its claim against the engineers to recover for delay and other extra costs allegedly resulting from deficiencies in the construction plans. This interpretation effectively expands tort liability by increasing the time period for bringing a tort claim from one to five years. In rejecting this argument, the MR Pittman court clarified that under the statute any claimant has no more than five years after project completion to bring suit against the design professional for any cause. However, a tort claimant still has only one year to file suit from the date he “knew or should have known” of damage caused by the alleged wrongful actions of the design professional.

A secondary question addressed in MR Pittman was the date of commencement of the one-year prescriptive period, which under La. C.C. 3492 commences to run from the day damage is sustained. The defendant/engineers argued that prescription commenced when the contractor first became aware of the alleged design deficiencies early in construction, as evidenced by the contractor’s notice to the owner of the deficiencies. The contractor argued that it could not fully appreciate its damages until the change orders were resolved later in the project. Citing Louisiana Supreme Court precedent holding that the quantum of damages need not be certain or fully incurred to trigger commencement of prescription, Harvey v. Dixie Graphics, Inc., 593 So.2d 351, 354 (La. 1992), the court agreed with the engineers’ position and dismissed the claims.