On February 17, 2017, different panels of the Louisiana Second Circuit Court of Appeal decided two separate appeals involving the same injured concrete pump truck operator, Hurchel Kendrick (“Kendrick”), and his employer, Hercules Concrete Pumping Services of Mississippi, Inc. (“Hercules”).

One appeal was in connection with a workers’ compensation claim that was filed after Kendrick fell from his work truck on January 28, 2015 and alleged injuries to his back and right knee.  Kendrick began receiving indemnity and medical benefits as a result.  In the course of his medical treatment, a lumbar MRI and total knee replacement were performed.  Kendrick’s treating neurosurgeon also requested authorization from Hercules’ workers’ compensation carrier to have a CT myelogram with 3-D reconstruction.  The request for authorization was denied by the carrier as not “medically necessary.” This decision was appealed to the Medical Director, a physician appointed by the Office of Workers’ Compensation Administration to settle disputes, and again denied.  The denial was also reviewed by a Workers’ Compensation Judge (“WCJ”) who affirmed the Medical Director’s denial, finding that Kendrick failed to show that the testing was medically necessary.

On appeal to the Second Circuit, the court agreed with the determinations below that Kendrick failed to prove the testing was medically necessary.  However, it concluded that a variance from the Medical Treatment Guidelines might be appropriate and remanded the case to allow Kendrick the opportunity to request a variance and provide scientific medical evidence as to why the variance was necessary.

Kendrick’s other Second Circuit appeal involved a related tort claim that he filed against Hercules for wrongful termination.  Kendrick had a prior workers’ compensation claim from 2013 that was in the process of being settled.  A lump-sum settlement was agreed to by the parties and was set for hearing to be approved by the Office of Workers’ Compensation on January 29, 2015, the day after the January 28, 2015 work-related injury at issue in Kendrick’s other appeal.  As part of the settlement of the 2013 claim, which was approved by a WCJ, Kendrick agreed to voluntarily resign from his employment.  Hercules subsequently told Kendrick that his service with the company would no longer be needed.

Kendrick filed a tort suit for wrongful termination, alleging he was fired for exercising his right to workers’ compensation.  Hercules moved for summary judgment, arguing that Kendrick had no wrongful termination claim because he had voluntarily resigned as part of his settlement.  Kendrick opposed the motion, arguing that voluntary resignation was never part of the negotiation of his settlement.  The trial court found that Kendrick was bound by the terms of the settlement and was unable to pursue a claim of wrongful termination.

On appeal, the Second Circuit concluded that the case could not be disposed of on summary judgment.  The court noted that, standing alone, the agreement would justify the termination, but the agreement was not the stated reason that Kendrick was terminated.  Rather, Kendrick testified that Hercules told him he would be let go if he filed another workers’ compensation claim.  Accordingly, there was a dispute of fact as to the explanation for the termination.  The trial court’s decision was reversed and remanded for further proceedings.

Kendrick v. Hercules Concrete Pumping Services of Mississippi, Inc.

Kendrick v. Hercules Concrete Pumping Services, Inc.