DocketNumber: 2015 CA 1942, 2015 CA 1943
Citation Numbers: 212 So. 3d 701
Judges: Crain, Holdridge, Welch
Filed Date: 1/5/2017
Status: Precedential
Modified Date: 8/23/2021
Lin this workers’ compensation action, the employee, Mr. Todd Porche, appeals the judgment of the Office of Workers’ Compensation Administration (OWCA) denying his claim for reinstatement of workers’ compensation benefits. The employer, Guichard Operating Co., LLC (Guichard), and its insurer, The Gray Insurance Company (Gray), answer the appeal. Based on a careful review of the record before us, we affirm.
FACTUAL AND PROCEDURAL HISTORY
When Mr. Porche was working for Guichard as a derrick hand, he fell from a height of eight to fourteen feet onto the steel rig floor, injuring his back and head. Gray paid workers’ compensation benefits from September 11, 2018, the date of the accident, through March 13, 2014. On March 14, 2014, Guichard and Gray filed a disputed claim for compensation against Mr. Porche. They alleged that he violated La. R.S. 23:1208 and 23:1208.1
After a four-day trial (October 9, 2014, October 10, 2014, November 17, 2014, and March 26, 2015), the workers’ compensation judge rendered judgment denying Mr. Porche’s claims, denying Guichard and Gray’s claims, and assessing each party with its own costs. The judgment was signed on August 12, 2015. | ^Meanwhile, Mr. Porche filed a motion to reopen the case on June 5, 2015, a hearing was held on June 19, 2015, and the judgment denying the motion was signed on October 6, 2015.
Mr. Porche appealed, asserting that the workers’ compensation judge erred in: (1) denying his motion to reopen the case and submit new evidence and (2) holding that he did not meet his burden of proof in establishing by a preponderance of evidence that his back fracture was due to the work-related fall. Guichard and Gray answered the appeal, contending that the workers’ compensation judge erred in: (1) failing to find that Mr. Porche violated La. R.S. 23:1208 due to his alleged misrepresentations about selling scrap metal and income therefrom; (2) failing to find that Mr. Porche violated La. R.S. 23:1208 due to his alleged misrepresentations about his prior medical history and injury history; (3) failing to find that Mr. Porche violated La. R.S. 23:1208.1; and (4) failing to assess Mr. Porche with costs.
STANDARD OF REVIEW AS TO FACTUAL FINDINGS
Factual findings in workers’ compensation cases are subject to the manifest
MR. PORCHE’S ASSIGNMENT OF ERROR NUMBER TWO
We will initially consider Mr. Porche’s second assignment of error regarding whether the workers’ compensation judge erred in finding that he did not establish that the work accident caused his disability. In very thorough written reasons for judgment, the workers’ compensation judge found the September 11, 2013 work accident caused a head laceration and a soft tissue muscular injury. She determined that the T-12 vertebrae fracture that Mr. Porche sought to attribute to the fall occurred before this work accident. Further, the workers’ compensation judge found that the fracture was not aggravated by the accident, but the muscle ^tissues and ligaments surrounding the area were. She concluded that those issues resolved by the time benefits were terminated on March 13, 2014, and that any remaining disability was due to Mr. Porche’s preexisting condition.
As the workers’ compensation judge stated in her reasons for judgment, Mr. Porche was in eleven accidents from 1995 through 2013, excluding the September 11, 2013 accident. Two accidents were work-related and the remaining eight were motor vehicle accidents. Mr. Porche reported back pain, among other issues, following eight of his prior accidents. In a 2005 accident, Mr. Porche fell, injured his neck and back, and sustained a compression fracture of the T-12 vertebrae. On March 13, 2013, he was in a motor vehicle accident requiring subsequent medical treatment through July 23, 2013. His complaints included back pain, and he settled his claim for $10,000.00 on September 24,
Guichard and Gray’s medical expert, Dr. Christopher Cenac, who performed an independent medical examination on Mr. Porche and reviewed his complete medical history, opined that “any issues [Mr. Porche] had certainly pre-dated this alleged injury” and had “absolutely nothing to do with the work-related accident.” Mr. Porche did not have a medical expert testify to refute Dr. Cenac’s medical opinion. The workers’ compensation judge found that because of the closeness in time between Mr. Porche’s March 2013 car accident and his September 2013 work accident, he was not entitled to the presumption of causation.
GUICHARD AND GRAY’S ASSIGNMENTS OF ERROR NUMBERS ONE, TWO AND THREE
We will next consider Guichard and Gray’s assignments of error as to the workers’ compensation judge’s finding that Mr. Porche did not violate La. R.S. 23:1208 and 1208.1. Pursuant to La. R.S. 23:1208, an employee who makes a false statement for the purpose of obtaining workers’ compensation benefits shall forfeit any right to compensation benefits. This broadly-worded statute encompasses any false statements or misrepresentations made to anyone, including the employer, physicians or insurers, when made willfully or deliberately for the purpose of obtaining benefits. Malone-Watson v. Strategic Restaurants, 2014-1191 (La.App. 1 Cir. 6/11/15), 176 So.3d 417, 419. An employer has the burden of proving each element within the statute and the lack of any one of the elements is fatal to the employer’s avoidance of liability. Varnado, 166 So.3d at 343. However, the burden of proof under. La. R.S. 23:1208 requires more than a mere showing of inconsistent statements or inadvertent admissions by the claimant. Clark, 6 So.3d at 290. Rather, there must be a showing that a misrepresentation was willfully made for the purpose of obtaining benefits. Id. The statutory forfeiture of workers’ compensation benefits for misrepresentations concerning those benefits is a harsh remedy and must be strictly construed. Malone-Watson, 176 So.3d at 420. The issue of whether an employee forfeited workers’ compensation benefits is one of fact, which is not to be overturned on appeal absent manifest error. Clark, 6 So.3d at 290.
17The workers’ compensation judge found that Mr. Porche did not violate La. R.S. 23:1208 when he earned $1,355.09 selling 15,132 units of scrap metal after the accident through July 25, 2014. The workers’ compensation judge found that due to Mr. Porche’s intellectual level, his limited ability to read and write, and his failure to understand what activities were prohibited under the statute, .he did
The evidence clearly establishes that Mr. Porche gave a false statement in his deposition as to whether or not he was selling scrap metal. The question then becomes whether Mr. Porche made the statement “for the purpose of obtaining or defeating any benefit of payment.” See La. R.S. 23:1208(A). La. R.S. 23:1208(G) provides that when an employee receives benefits for more than thirty (30) days, the employee shall upon reasonable request report his other earnings to his employer’s payor on a form prescribed by the director and signed by the employee. Clearly, the sale of scrap metal would fall into the category of “other earnings.” Mr. Porche did submit such a report as requested on October 16, 2013. LWC-WC-1025EE. Form 1025EE, however, provides in part, “[a]s an injured worker, you must notify your employer or insurer of the earnings of any wages, .... ”
Guichard and Gray also assign as error the workers’ compensation judge’s finding that Mr. Porche did not violate La. R.S. 23:1208 by presenting an incomplete medical history after the accident to one or more medical providers, specifically Dr. Cenac and Terrebonne General Medical Center. The workers’ compensation judge stated that Mr. Porche did not misrepresent his previous medical history at the hospital because he suffered trauma after falling from eight to fourteen feet.
Guichard and Gray complain that the workers’ compensation judge erred in finding that Mr. Porche did not violate La. R.S. 23:1208.1 in failing to completely disclose his medical history on his job application forms. In her reasons for judgment, the workers’ compensation judge stated that Mr. Porche did not violate La. R.S. 23:1208.1 because Ms. Deborah Hanks, the secretary for Guichard, testified that Mr. Porche was hired without the second injury questionnaire being answered. She noted that Mr. Porche was removed from the room while the medical history questionnaire was being completed, and he relied upon his wife, Mrs. Stacie Porche, to complete the application for him.
Guichard and Gray contend that they were prejudiced by Mr. Porche’s answers because they affected Guichard’s ability to receive reimbursement from the second injury fund. They assert that Mr. Porche had a pre-existing permanent | inpartial disability in the form of a multiple cervical disc herniation and that Dr. Cenac testified as to the “merger” of the subsequent injury with this pre-existing permanent partial disability. Guichard and Gray also challenge Mr. and Mrs. Porche’s testimony as to the circumstances surrounding their filling out the form. They argue that the Porches’ testimony was inconsistent as to why Mrs. Porche answered “none” as to “6. What operations, accidents, broken bones, strains or serious illness have you had?” Therefore, they contend that the workers’ compensation judge erred in accepting the Porches’ testimony.
La. R.S. 23:1208.1 provides for the forfeiture of a claimant’s workers’ compensation benefits when.(l) the claimant made false statements concerning a prior injury in response to such an inquiry (untruthful statements), (2) the false statements are directly related to the medical condition for which the claimant is seeking benefits or to the employer’s ability to receive reimbursement from the second injury fund (prejudice to the employer), and (3) the employer has provided contemporaneous
The “prejudice” that must be incurred by the employer for forfeiture to apply is specifically defined by the statute. Nabors, 857 So.2d at 415. Under the first prong of the “prejudice to the employer” test, a direct relation is established when |nthe subsequent injury was inevitable or very likely to occur because of the presence of the pre-existing condition. Wise v. J.E. Merit Constructors, Inc., 97-0684 (La. 1/21/98), 707 So.2d 1214, 1220. Under the second prong, involving “merger,” the employer must prove that the employee had a permanent partial disability that merged with the injury to produce a greater disability than would have resulted from the subsequent injury alone. Id.; see also La. R.S. 23:1371(0.
Guichard and Gray focus in their brief on the worker’s compensation judge’s statements in her reasons for judgment that Mr. Porche’s wife completed the medical history form because he was called away by a Guichard employee to watch a safety video and take a drug test. The record establishes that Mr. Porche repeated third, fourth and sixth grades; dropped out of school at sixteen years old; and could “barely read or write.” He had vocational testing that indicated he read at a second grade level, could be classified as illiterate and “would not be capable of functioning in office environments which require ... completion of forms.” In his medical records from Our Lady of Lourdes dated February 25, 2004, the comment section of the patient information form contains the statement, “Patient states he can not [sic] read or write ....” He testified that he could not read the newspaper. Mrs. Porche testified that her reading skills were also limited. She dropped out of school in the seventh grade and relied on her sister-in-law to help her with the application. Of the four medical history questionnaires that Guichard and Gray submitted into evidence,
|1gMr, and Mrs. Porche testified that Ms. Hanks indicated that they did not need to worry about writing all of Mr. Porche’s doctors’ names and all of his muscle strains. Ms. Hanks denied these statements when she testified. She also testified that she did not ask him about question 6 because “none” was written after it so she assumed he understood the question. However, she also testified that she did ask him whether his answer “none” was correct. She responded affirmatively when asked whether Mr. Porche was hired before he finished filling out the application because Clyde, who was in charge of hiring, brought him to take a drug screen and watch a safety video.
Q: [B]ut if he has any injury, wouldn’t that merge with his prior condition to create a greater problem and a greater out of work time and a greater everything than otherwise would have been there?
In other words, if somebody is healthy and there [isn’t anything] wrong with them, they have an injury, those people who were healthy beforehand would heal up quicker and et cetera than somebody with a history like this; isn’t that right?
A: Absolutely.
This testimony alone is insufficient to meet the employer’s burden of proof pursuant to La. R.S. 23:1208.1. Forfeiture is a harsh remedy; therefore, statutory forfeiture provisions such as La. R.S. 23:1208.1 must be strictly construed. Nabors, 857 So.2d at 414. As with the workers’ compensation judge’s previous rulings, the ruling that Guichard and Gray are not entitled to penalties under La. R.S. 23:1208.1 is also a factual finding, which is supported by the record and is not manifestly erroneous.
J^GUICHARD AND GRAY’S ASSIGNMENT OF ERROR NUMBER FOUR
In their fourth assignment of error, Guichard and Gray contend that the workers’ compensation judge abused her discretion in ordering the parties to bear their own costs. In workers’ compensation cases, the awarding of costs is governed by La. R.S. 23:1317(B),
MR. PORCHE’S ASSIGNMENT OF ERROR NUMBER ONE
Lastly, we consider Mr. Porche’s first assignment of error in which he contends that that the workers’ compensation judge erred in refusing to reopen the record so he could submit additional evidence that he alleged was unforeseen and did not exist at the time of trial. More specifically, he sought to introduce evidence that in April and May of 2015, Mr. Porche went to Shreveport Medical Hospital, a charity
DECREE
For the reasons discussed above, we affirm the workers’ compensation judgment. The costs of this appeal are assessed one-half to Todd Porche and one-half to Guichard Operating Company and The Gray Insurance Company.
AFFIRMED.
Welch, J., Concurs and assign reasons.
Crain, J., Concurs.
. Louisiana Revised Statutes 23:1208 provides that an employee forfeits workers’ compensation benefits and is subject to criminal and civil penalties for willfully making false statements or representations to obtain such benefits. Louisiana Revised Statutes 23:1208.1 provides that an employee forfeits workers' compensation benefits for failing to answer truthfully an employer's inquiry into the employee’s previous injuries, disabilities or other medical conditions.
. A presumption of causation is appropriate if the employee's symptoms did not manifest before the accident, but commenced with the accident and manifested themselves thereafter, and if either medical or circumstantial evidence indicated a reasonable possibility of causal connection between the accident and the onset of those symptoms. See Magee v. Abek, 2004-2554 (La.App. 1 Cir. 4/28/06), 934 So.2d 800, 807, writ denied, 2006-1876 (La. 10/27/06), 939 So.2d 1287.
. The full text of the paragraph in Form 1025EE quoted above provides:
It is unlawful for you to work and receive workers’ compensation disability benefits, except for supplemental earnings benefits. Supplemental earnings benefits are paid when an employee is able to work, but is unable to earn 90% or more of his pre-injury wages as a result of a job related accident. As an injured worker, you must notify your employer or insurer of the earning of any wages, changes in employment or medical status, receipt of unemployment benefits, receipt of social security benefits and receipt of retirement benefits. If you receive benefits for more than 30 days, you wili be required to certify your earnings to you insurer quarterly.
(Emphasis added).
. While Dr. Joni Claville, the emergency room physician who treated Mr. Porche, testified that he was awake and alert when she treated him, "lost consciousness” is circled in the medical records from Terrebonne General Medical Center under "associated symptoms." Also, the records include the statement, "Unreliable history concerning any possible head injury.” Moreover, Dr. Cenac testified that Mr. Porche told him he "kind of blacked out” when he fell.
. Dr. Cenac stated in his report that Mr. Porche had a "very complex medical history,” specifically noting the two 2013 motor vehicle accidents and his long history of back and neck complaints dating back to 1995. Mr. Porche testified that Dr. Cenac had all his medical records when Dr. Cenac saw him for his independent medical examination.
. We note that the workers’ compensation judge considered whether Mr. Porche violated La. R.S. 23:1208 when filling out the post-hire medical questionnaire form. She found that Mr. Porche did not violate La. R.S. 23:1208 because he did not remember prior injuries and was taken away to watch a video and take a drug test before the application was complete. However, as the Louisiana Supreme Court explained in Resweber v. Haroil Const. Co., 94-2708 (La. 9/5/95), 660 So.2d 7, 14, La. R.S. 23:1208.1 applies to false statements' or misrepresentations made pursuant to employment-related inquiries regarding prior medical history, such as in an employment application or some post-employment questionnaire, and not to statements made regarding a pending claim, which are covered under La. R.S, 23:1208.
. In addition to the July 29, 2013 application at issue, Guichard and Gray submitted Mr. Porche’s applications dated October 3, 2006, July 29, 2011, and January 25, 2012 from prior employment with Guichard. On the 2011 and 2012 questionnaires, question 6 was left unanswered. The October 2006 application, filled out by Mrs, Porche, did state that Mr. Porche had a “hernia repair" from a previous accident for question 6.
. This case is distinguishable from Dulin v. Levis Mitsubishi, Inc., 2001-2457 (La.App. 1 Cir. 12/20/02), 836 So.2d 340, 346, writ denied, 2003-0218 (La. 3/28/03), 840 So.2d 576, wherein this Court affirmed the workers’ compensation judge’s finding that the employee violated La. R.S. 23:1208.1. In Dulin, this Court stated that “[a] person who signs a written contract is presumed to know its contents and cannot avoid its obligations by contending he did not read it or that it was not explained or that he did not understand it.” Id., 836 So.2d at 345. Dulin, the employee, argued that he was unable to read very well because he only received a ninth grade education, but unlike the case at bar, a previous employment questionnaire he completed showed he graduated from high school. RL, 836 So.2d at 345 n.5. Moreover, as earlier discussed, in the case at bar the workers’ compensation judge accepted the Porches’ testimony that Mr. Porche was told that he did not need to worry about listing all of his doctors’ names and muscle strains.
. La. R.S. 23:1317(B) provides that "[cjosts may be awarded by the workers’ compensation judge, in his discretion, and when so awarded the same may be allowed, taxed, as in other civil proceedings.”