Teen Burned in Big Easy's 'Hottest' Cafe can't Recover for Lost Earning Capacity

New Orleans, LA (WorkersCompensation.com) -- In Louisiana, a worker can obtain benefits to address reduced earning capacity after a workplace injury. But eligibility is based on a cold calculation under the statute; such circumstances as age, illegality of employment, or the danger of the activity, are not ingredients. 

The 14-year-old worker in Flores v. Amtrust North America, No. 22-CA-253 ( La. Ct. App. 03/01/23), worked for a New Orleans cafe described by the restaurant’s website as “one of the hottest tickets” in New Orleans. The teen was carrying hot cooking oil down a stairwell when he fell and was covered by the oil. He sustained second and third degree burns to multiple parts of his body. 

In a workers’ compensation claim, the teen’s mother sought supplemental earnings benefits, amongst other benefits. The Office of Workers’ Compensation denied the SEB claim. 

On appeal, the court pointed out that such benefits are available, according to Louisiana’s workers’ compensation statute, when the injury resulted in the employee's inability to earn wages equal to 90 percent or more of wages at time of injury. La. R.S. 23:1221(3)(a)(i). The purpose of SEBs is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident, the court explained. 

The court noted that the employee (or in this case, the parent) had the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. 

Here, the evidence worked against the teen. For example: 

• The physician who treated the teen on the day of the accident determined the teen could perform "regular work," but that the work would have to be out of the sunlight due to the nature of the injuries. The doctor explained that among the jobs the teen could perform were positions such as a cashier, greeter, cashier host, greeter host, and cashier customer service, if within restrictions. Additionally, he approved jobs the teen could perform which would allow him to earn more than his prior average weekly wage.
• A Vocational Rehabilitation counselor who assessed the teen when he was 16 years old concluded that he could earn the $10 per hour he was making pre-accident at the cafe, as long as he stayed within the limitations of sitting and working outside and not lifting over 40 pounds. 

“The evidence presented at trial showed that [the teen] is capable of returning to work, with restrictions, and that he can earn the same amount that he had been paid pre-injury,” the court wrote. 

The court acknowledged that the teen stated that he suffered from loss of stamina after the accident. In addition, there was unfairness in the result, particularly given that the teen was illegally employed, and that he was engaging in a work activity at the time of injury that most adult workers would reject as too dangerous.

However, the court stated, the statute did not allow for consideration of such factors. “The law, as it stands, overlooks the illegality of employment as well as the breaches of safety and common sense that led to [the teen’s] injuries, while simultaneously allowing the negligent employer to benefit from the protection of the Workers' Compensation statutes,” the court wrote.

Fairness aside, the court held that it lacked the ability to provide the relief the parent sought for the teen’s life-long injuries.

The court affirmed the OWC’s decision.

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