Louisiana Record

Tuesday, July 23, 2019

Louisiana appeals court reverses in part worker's compensation claim against Terminix


By Takesha Thomas | Sep 22, 2018

Terminix will not have to pay worker for related injuries after knee replacement | https://morguefile.com/photos/morguefile/1/knee%20replacement

NEW ORLEANS —  A Louisiana appeals court has reversed part of a ruling from a worker's compensation judge over a former employee's claim against Terminix. 

The Fifth Circuit Court of Appeal for the State of Louisiana ruled on Sept. 19, to reverse a worker's compensation judge's ruling that a case against Terminix Services Co. and Luba Worker's Comp over work-related injuries sustained by former Terminix employee Rodney Loar for a left shoulder injury and medical expenses associated should not be paid. 

Judge Stephen J. Windhorst ruled to reverse a decision that, "Terminix’s denial of treatment to claimant’s left shoulder, left knee, right hip and low back, failure to pay for treatment and failure to reimburse claimant for out-of-pocket expenses related thereto was arbitrary, capricious and unreasonable, and we vacate the WCJ’s award of attorney’s fees and penalties." 

Loar claims that while employed as a technician for Terminix he injured himself in December 2011 while spraying outside a customer's home. According to court paperwork, Loar "slipped in a muddy ditch and injured his right knee and hit his head." 

As a result of the injuries, Loar claims that he suffered a "mild limp favoring the right extremity and causing right hip pain." 

The pain continued, and court documents say, Loar was given right knee replacement surgery. However, over the course of the next few years, Loar claims that he "continued to have trouble with his right knee, and, at various times, instability in that knee caused him to fall." 

After learning in 2016 that the implant in his knee replacement was recalled the prior year, Loar underwent surgery in August 2017 to remove it. 

Loar claims that he "endured a total of four surgeries to his right knee as a result of the initial, work-related injury." 

Loar filed a claim to the Officer of Worker's Compensation in November 2015 stating that he had suffered multiple falls and several accidents due to the right knee injury and right hip, lower back, left shoulder and injuries to his left knee as a result of the multiple falls. However, the claim was denied. 

A July 2017 trial was held after attorneys for Loar filed an amended claim. According to the amended complaint, Loar sought compensation claiming that, "his total knee replacement had failed because the Zimmer Persona medical equipment was recalled three months after his surgery." 

Terminix was ordered to pay "$5,000 in penalties; $9,500 in attorney’s fees and legal interest; and for any out-of-pocket expenses and costs for medical treatment not authorized to the left knee, left shoulder, low back and right groin."

In the most recent appeal filed by Terminix, the courts reversed that ruling stating in part that, "we find no error in the WCJ’s conclusion that claimant’s subsequent injuries to his right hip, groin, lower back and left knee were caused by his initial, work-related injury and thus are compensable." 

Adding that, "we concluded that the claimant did not meet his burden of proof with regard to the left shoulder injury, we also find that the WCJ was manifestly erroneous in finding that the left shoulder injury is a compensable injury.

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