Employers National Insurance v. Second Injury Board

693 So. 2d 1274, 96 La.App. 1 Cir. 1585, 1997 La. App. LEXIS 1419, 1997 WL 236270
CourtLouisiana Court of Appeal
DecidedMay 9, 1997
DocketNo. 96 CA 1585
StatusPublished
Cited by2 cases

This text of 693 So. 2d 1274 (Employers National Insurance v. Second Injury Board) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Employers National Insurance v. Second Injury Board, 693 So. 2d 1274, 96 La.App. 1 Cir. 1585, 1997 La. App. LEXIS 1419, 1997 WL 236270 (La. Ct. App. 1997).

Opinion

JjSHORTESS, Judge.

This appeal requires us to decide if the Louisiana Workers’ Compensation Second Injury Board (defendant) should reimburse the Employers National Insurance Company (plaintiff) workers’ compensation payments paid by plaintiff to an injured employee who had a permanent partial disability when hired. The trial court ordered defendant to reimburse plaintiff, and defendant appeals.

The Louisiana Legislature enacted Revised Statutes 23:1371-78 to establish a special state fund called the Workers’ Compensation Second Injury Fund. Every property and casualty insurer, self-insured employer, and group self-insurance fund, authorized to transact business in Louisiana, makes an annual payment to this fund.1 Defendant receives these payments and transmits them to the state treasurer. The state treasurer then credits the fund. La. R.S. 23:1377(B)(2). This fund pays defendant’s administrative expenses, and also reimburses these property and casualty insurers, self-insured employers, and group self-insurance funds for compensable claims.2

If an employee is injured while in the course and scope of employment, a property or casualty insurer, self-insured employer, or group self-insurance fund must generally pay compensation benefits to this employee according to Revised Statute 23:1031, et seq. But if an employer hires an employee with a preexisting disability and this employee becomes injured while in the course and scope of his latest employment, though a property or casualty insurer, self-insured employer, or group self-insurance fund must pay compensation benefits to the employee, they can apply to defendant for reimbursement from the fund for those benefits paid to this employee.3

To recoup benefits from defendant, a property or casualty insurer, self-insured employer, or group self-insurance fund must prove three elements: 1) that han employee had a preexisting permanent partial disabili[1276]*1276ty when the employee incurred a later injury; 2) that the employer can clearly prove it had actual knowledge of this preexisting disability before the later injury; and 3) that the employee’s later injury, when coupled or. combined with the employee’s previous disability, makes the worker materially and substantially more disabled than if the preexisting disability had not been present.4 In other words, the employee’s later' injury “merged” with the preexisting disability to augment the employee’s overall disabled condition.5

Facts

Randy Richard worked for Harmony Corporation (Harmony), a construction company and subsidiary of Turner Industries (Turner). He was a boilermaker welder and he earned $500.00 a week. On March 7, 1990, during the course and scope of his employment with Harmony, he began to climb a ladder but lost his footing. He fell to the ground, tore his right-knee anterior cruciate ligament, and could not work for months. Plaintiff was Harmony’s workers’ compensation insurer, and because of this injury, it paid Richard a total of $13,800.00 in compensation benefits and $54,132.91 for medical expenses. It also paid Richard $20,000.00 to settle a dispute over whether he was entitled to more benefits.

After paying weekly benefits to Richard, plaintiff applied to defendant for reimbursement according to Revised Statute 23:1378(A).6 Defendant, however, denied plaintiffs reimbursement claim based on Revised Statute 23:1378(A)(4), which requires an employer to know of an employee’s permanent partial disability before it hires the employee.

Plaintiff contested defendant’s decision. At trial, both parties agreed Richard had a preexisting left-knee disability when he began working for Harmony. They agreed he later injured his right knee while working in the course and scope of his employment for Harmony. They also agreed his new right-knee injury [ .¡merged with his preexisting left-knee disability. Defendant, however, did not stipulate Harmony knew Richard had a preexisting left-knee disability when he began work.

Plaintiff argued it was entitled to be reimbursed because a Turner employee knew of Richard’s preexisting left-knee injury before Richard began working, and though Harmony may not have actually known about Richard’s preexisting condition, the Turner employee’s knowledge should be imputed to Harmony since it is one of Turner’s subsidiary corporations. The trial court agreed and imputed the Turner employee’s knowledge of Richard’s preexisting disability to Harmony, even though it had not formally hired Richard.

On appeal, defendant argues plaintiff is not entitled to be reimbursed because Harmony did not know Richard had a permanent partial preexisting disability before he began to work for Harmony.7

It alternatively argues Richard’s claim was not compensable because he did not truthfully complete a medical pre-examination form, the Second Injury Fund Questionnaire/Pre-employment Placement Questionnaire (Questionnaire). Since he did not answer truthfully,, defendant contends Richard forfeited his claim to benefits according to Revised Statute 23:1208.1.

Why it matters whether Richard’s “employer” knew of his preexisting disability before it hired him.

The legislature created the Louisiana Workers’ Compensation Second Injury Fund to encourage employers to hire physically-handicapped employees, who have a perma[1277]*1277nent, partial disability.8 It created an incentive whereby the fund would protect these self-insured employers, property and casualty insurers, and group self-insurance funds from paying excess compensation benefits when the employee’s later injury merges with the preexisting disability.9. So, if an employer hues or retains an employee who has a permanent partial disability, and this employee’s later on-the-job injury merges with the preexisting disability, the employer or its insurer can be reimbursed from the fund for all weekly ^compensation benefits payable after the first 104 weeks of payments,10 for 50% of all reasonable and necessary medical expenses actually paid that exceeds $5,000.00 but are less than $10,000.00,11 and for 100% of all reasonable and necessary medical expenses in excess of $10,000.00.12 But the employer must clearly establish it had actual knowledge of the employee’s preexisting permanent partial disability “pri- or to the subsequent injury.”13

Did Harmony “know” of the preexisting left-knee disability?

Bryan Casebonne, a Turner medical technician, and the only witness at trial, worked in the medical screening unit within Turner’s central personnel office. He testified Turner’s personnel office controlled the “whole hiring process” for all its companies. Case-bonne described Turner’s hiring process like this: applicants learn about possible job openings and they go to either a Turner office or a Turner subsidiary office to apply for a job. If they appear at a subsidiary office, they are routed to Turner’s central personnel office. Once at this office, they axe grouped according to their craft. They then take a written skills test. If they pass this test, they can be interviewed. If they have a successful interview, they must still- be medically examined and take a drug test.

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693 So. 2d 1274, 96 La.App. 1 Cir. 1585, 1997 La. App. LEXIS 1419, 1997 WL 236270, Counsel Stack Legal Research, https://law.counselstack.com/opinion/employers-national-insurance-v-second-injury-board-lactapp-1997.