Leontine Moran Versus Rouse's Enterprises, LLC and Great American Alliance Insurance Company

LEONTINE MORAN NO. 19-CA-239

VERSUS FIFTH CIRCUIT

ROUSE'S ENTERPRISES, LLC AND GREAT COURT OF APPEAL
AMERICAN ALLIANCE INSURANCE
COMPANY STATE OF LOUISIANA

ON APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION,
DISTRICT 7
STATE OF LOUISIANA
NO. 17-7076,
HONORABLE SHANNON BRUNO BISHOP, JUDGE PRESIDING

December 26, 2019

JUDE G. GRAVOIS
JUDGE

Panel composed of Judges Jude G. Gravois,
Stephen J. Windhorst, and Hans J. Liljeberg

AFFIRMED
JGG
SJW
HJL

COUNSEL FOR PLAINTIFF/APPELLANT,
LEONTINE MORAN
Daren Sarphie

COUNSEL FOR DEFENDANT/APPELLEE,
ROUSE'S ENTERPRISES, LLC AND GREAT AMERICAN ALLIANCE
INSURANCE COMPANY
Wade A. Langlois, III
Brittany A. Cooper

GRAVOIS, J.

Plaintiff/appellant, Leontine Moran, appeals a judgment of the Office of

Workers’ Compensation finding that she forfeited her right to workers’

compensation benefits under La. R.S. 23:1208. For the following reasons, we

affirm.

FACTS AND PROCEDURAL HISTORY

On October 9, 2017, Ms. Moran was working as a cook in the deli

department for Rouse’s Enterprises, L.L.C. (“Rouses”) in Metairie, Louisiana,

when she slipped and fell in a puddle of water that had leaked from a refrigerated

display case. Ms. Moran reported the accident to her manager, Edward Drevar,

and then returned to her work. After about 30 minutes, she began to experience leg

pain. Ms. Moran left work, briefly went home, and then went to the emergency

room at Tulane Lakeside Hospital where she complained of back and knee pain.

She was diagnosed with a thoracic strain and a knee injury. Ms. Moran returned to

work the next day and completed an injury report. She also submitted to a drug

screen that day in accordance with Rouses’ drug testing policy. The following

week, Ms. Moran was informed that she was terminated from her position at

Rouses after the results of her drug test revealed the presence of THC.1

On October 14, 2017, Ms. Moran went to the emergency room at East

Jefferson General Hospital (“EJGH”). She reported that she had a recent fall at

work and complained of right-sided chest pain radiating to her right shoulder and

neck. On October 19, 2017, Ms. Moran was treated at Daughters of Charity for

complaints of pain in her neck, back, and arm. She was diagnosed with right

shoulder impingement syndrome and given a steroid injection. On October 21,

2017, she presented to University Medical Center and was treated for back, chest,

1
THC is short for tetrahydrocannabinol, an active chemical in marijuana (cannabis).

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and right arm pain. She returned to Daughters of Charity on November 3, 2017

due to pain in her right shoulder. She continued to treat with Daughters of Charity

and was referred to University Medical Center Orthopedics. She also received

physical therapy at EJGH.

On November 2, 2017, as a result of the accident and the injuries she

allegedly sustained therein, Ms. Moran filed a disputed claim for compensation

with the Office of Workers’ Compensation against Rouses and its insurer, Great

American Alliance Insurance Company. Defendants answered and denied the

claim on November 6, 2017. In their answer, defendants alleged that in

accordance with La. R.S. 23:1081, because of Ms. Moran’s positive drug test, they

are entitled to a presumption of intoxication and a denial of the claimant’s benefits.

On May 9, 2018, defendants filed a supplemental and amended answer to

the disputed claim for compensation and a reconventional demand. Therein,

defendants claimed that Ms. Moran made false statements that triggered the

provisions of La. R.S. 23:1208. Accordingly, they alleged that Ms. Moran

forfeited her right to all benefits. Specifically, defendants stated that Ms. Moran

alleged injuries to her right knee, back, and right shoulder as a result of the subject

accident. During her deposition, she testified that she only experienced knee pain

at one particular time some years earlier, but could not remember exactly when.

She denied having chronic knee pain prior to the accident and said the knee pain

was not serious. Defendants stated, however, that according to the Daughters of

Charity medical records, Ms. Moran has treated for knee pain since 2012 and

complained of knee pain at least eight times between 2012 and the date of the

subject accident. At her deposition, Ms. Moran also testified that she never

experienced shoulder pain or back pain prior to the subject accident. Her medical

records revealed, however, that on August 2, 2017, at the last appointment at

Daughters of Charity before the accident, Ms. Moran was diagnosed with right

19-CA-239 2

shoulder impingement. Defendants also argued that during her deposition, Ms.

Moran further denied ever experiencing a slip and fall prior to this accident.

Medical records from University Medical Center revealed, however, that she

experienced a prior slip and fall on April 20, 2013 that resulted in complaints of

right knee pain, right wrist pain, and back pain. Defendants also noted that in the

Second Injury Fund questionnaire Ms. Moran completed when hired, she denied

prior knee and back problems. She also denied being treated or counseled on the

use of drugs in both the questionnaire and in her deposition. Defendants stated that

the medical records reveal that Ms. Moran was treated and counseled for excessive

THC use in April 2013. Thus, defendants argued that based on these false

statements, per La. R.S. 23:1208, Ms. Moran forfeited the right to all benefits,

including penalties and attorney’s fees.

At defendants’ request, Dr. Douglas Lurie, an orthopedist, examined Ms.

Moran on May 10, 2018. After examining Ms. Moran and reviewing her medical

records, Dr. Lurie opined that Ms. Moran’s injuries were pre-existing and that she

could return to work. At his deposition on May 22, 2018, Dr. Lurie stated that Ms.

Moran “may have” experienced an aggravation of symptoms following her

accident.

Trial on the merits of the matter took place on November 29, 2018. On

March 8, 2019, the trial court rendered judgment, finding:

1. Ms. Moran met her burden to prove that she sustained an on the job
accident in accordance with La. R.S. 23:1021(1);

2. Ms. Moran met her burden to show that she sustained injuries related to a
work accident;
3. Ms. Moran met her burden to show a causal connection between a work
accident and her injuries;

4. Ms. Moran met her burden to show that she was disabled from work as a
result of injuries sustained in the work accident;

5. Defendants are not entitled to the intoxication presumption due to the
immediacy of the drug testing;

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6. Defendants failed to prove that Ms. Moran’s intoxication was the cause
of her work accident;

7. Ms. Moran made false statements for the purpose of obtaining workers’
compensation benefits in violation of La. R.S. 23:1208; and

8. Ms. Moran forfeited her rights to any additional workers’ compensation
benefits due to her violations of La. R.S. 23:1208.

The judgment also dismissed the matter with prejudice, with each party to bear

their own costs.

Ms. Moran filed a motion for a new trial on March 15, 2019. The trial court

denied the motion without a hearing on March 18, 2019. Defendants also filed a

motion for a new trial, which was also denied by the trial court without a hearing

on March 19, 2019. Ms. Moran timely appealed.

On appeal, Ms. Moran is not challenging the trial court’s ruling that she

committed fraudulent conduct. She asserts, instead, that the workers’

compensation judge erred in finding that she forfeited any benefits from the time of

the accident on October 9, 2017 until her deposition on March 13, 2018, which she

alleges is when the fraudulent conduct was adjudged to have occurred. She argues

that the forfeiture requirement of La. R.S. 23:1208 applies prospectively only from

the time the fraudulent conduct occurred, and not prior thereto. In support of her

arguments, Ms. Moran cites to two opinions of intermediate appellate courts of this

state (the First and Third Circuits) that have applied the forfeiture requirement

prospectively: Leonard v. James Indus. Constructors, 03-0040 (La. App. 1 Cir.

5/14/04), 879 So.2d 724, writ denied, 04-1447 (La. 9/24/04), 882 So.2d 1139, and

Jim Walter Homes, Inc. v. Guilbeau, 05-1473 (La. App. 3 Cir. 6/21/06), 934 So.2d

239. Ms. Moran also argues on appeal that the trial court erred in not awarding

multiple penalties, attorney’s fees, cost reimbursement, and judicial interest for

defendants’ failure to reasonably controvert the claim until March 13, 2018.

In response, defendants argue that nothing in the final judgment reflects that

the Office of Workers’ Compensation judge made any “findings” of when Ms.

19-CA-239 4

Moran’s fraudulent conduct began or that her deposition on March 13, 2018

triggered the forfeiture of benefits under La. R.S. 23:1208. Nonetheless,

defendants argue that the rule of prospective forfeiture is not countenanced by the

statutory language of La. R.S. 23:1208, the Louisiana Supreme Court, or

jurisprudence of this Court. Additionally, defendants have answered the appeal,

asserting that if this Court finds that Ms. Moran’s benefits were not forfeited, the

workers’ compensation judge erred in determining that Ms. Moran suffered a

compensable, work-related injury.

LAW AND ANALYSIS

La. R.S. 23:1208, provides, in pertinent part:

A. It shall be unlawful for any person, for the purpose of obtaining or
defeating any benefit or payment under the provisions of this
Chapter, either for himself or for any other person, to willfully
make a false statement or representation.

***

E. Any employee violating this Section shall, upon determination by
workers’ compensation judge, forfeit any right to compensation
benefits under this Chapter.
La. R.S. 23:1208 authorizes forfeiture of benefits upon proof that: (1) there

is a false statement or representation; (2) it is willfully made; and (3) it is made for

the purpose of obtaining or defeating any benefit or payment. Reid-Lopez v.

Alternative Serv. Concept, LLC, 11-933 (La. App. 5 Cir. 5/22/12), 96 So.3d 537,

539. The party who requests that the benefits be forfeited must show that the

employee’s statements were not only false, but they must also show that the

statements or misrepresentations were willful and deliberately done with the intent

to obtain benefits. Id. The burden of proof requires more than a mere showing of

inconsistent statements or inadvertent omissions by the claimant. Id. The

determination of whether or not a workers’ compensation claimant has forfeited his

right to benefits by making a false statement or representation for the purpose of

obtaining benefits involves inherently factual determinations, and thus, appellate

19-CA-239 5

review of the workers’ compensation judge’s findings is governed by the manifest

error standard of review. Porter v. Pellerin Construction Company, 06-949 (La.

App. 5 Cir. 4/11/07), 958 So.2d 7, 11, writ denied, 07-1076 (La. 8/31/07), 962

So.2d 438.

Previous decisions of this Court regarding La. R.S. 23:1208 have maintained

the forfeiture of all benefits pursuant to La. R.S. 23:1208.2 In one such case, Lee v.

Alton Ochsner Med. Found., 04-99 (La. App. 5 Cir. 11/30/04), 890 So.2d 597, 598,

the plaintiff sought payment of medical expenses incurred, but not paid for, prior to

a previous judgment that he forfeited his benefits pursuant to La. R.S. 23:1208.

The trial court denied his claim after the employer urged an exception of res

judicata. On appeal, this Court affirmed and found that the plaintiff no longer had

a cause of action against his employer. Id. at 599. In support of its opinion, this

Court cited to St. Bernard Par. Police Jury v. Duplessis, 02-0632 (La. 12/4/02),

831 So.2d 955, and its holding that upon a determination of fraud on the part of a

workers’ compensation claimant, all benefits are terminated, whether related to the

fraudulent conduct or not. Id. at 598.

In St. Bernard, the claimant began receiving workers’ compensation benefits

in 1991. In 1999, it was suspected that the claimant was falsifying mileage reports.

As a result, his employer and his employer’s insurer filed a petition alleging that

the claimant violated La. R.S. 23:1208. St. Bernard, 831 So.2d at 956. The Office

of Workers’ Compensation hearing officer ordered the claimant to forfeit all

payments for mileage benefits he claimed. On appeal, the Fourth Circuit affirmed

and found that a claimant who has misrepresented his mileage expenses should not

2
See for example Tuminello v. Girling Health Care Inc., 98-977 (La. App. 5 Cir. 1/26/99), 731 So.2d 316;
Joseph v. Onyx Indus. Servs., 04-367 (La. App. 5 Cir. 12/14/04), 892 So.2d 36; Reid-Lopez, supra; Mazique v.
Cajon Operating Co., 14-11 (La. App. 5 Cir. 5/28/14), 142 So.3d 336; Costales v. Turner Indus., 05-36 (La. App. 5
Cir. 5/31/05) 905 So.2d 410, 412, writ denied, 05-1707 (La. 1/9/06), 918 So.2d 1056.
It is noted that the foregoing cases did not specifically address the issue of prospective forfeiture of benefits
pursuant to La. R.S. 23:1208.

19-CA-239 6

be disqualified from receiving disability benefits. Id. at 957. The Supreme Court

reversed. The court found that because of the claimant’s misrepresentation

regarding mileage reimbursement, he forfeited his right to all workers’

compensation benefits pursuant to La. R.S. 23:1208. Id. at 960. In rendering its

decision, the court considered and quoted from its previous opinion in Resweber v.

Haroil Const. Co., 94-2708 (La. 9/5/95), 660 So.2d 7. There, the court found La.

R.S. 23:1208 to be clear and unambiguous. Regarding the legislative history, the

court in Resweber stated:

The history of Section 1208 indicates a clear legislative intent
to prevent and discourage fraud in relation to workers’ compensation
claims, and Section 1208 should not be subjected to a strained
interpretation which would undercut that legislative intent. … The
legislature has determined workers’ compensation fraud is a severe
and growing problem and has continually amended Section 1208 to
make it easier to enforce and to make the penalties stiffer. It is clear
from the history of the statute that the legislature intended that any
false statements or representations willfully made for the purpose of
obtaining benefits would result in forfeiture of those benefits, and this
legislative intent cannot be ignored.

Id. at 12-13.
In St. Bernard, the claimant argued that the word “any” in the statute is

ambiguous and must be narrowly construed in his favor to only allow for the

forfeiture of benefits related to his fraudulent statements. St. Bernard, 831 So.2d at

960. However, the court found, like it did in Resweber, that La. R.S. 23:1208 is

unambiguous. The court concluded:

… The Louisiana Legislature has made it clear: false
statements that are willfully made for the purpose of obtaining
workers’ compensation benefits constitutes an attempt to defraud the
workers’ compensation system. Therefore, once it is determined that
a claimant has willfully made a false statement for the purposes of
receiving any benefit or payment, the plain language of the statute
mandates that the “right to compensation benefits” under the
Workers’ Compensation Act are forfeited.

Id.

As previously noted, in support of her arguments on appeal, Ms. Moran

relies on cases from the First and Third Circuits that have interpreted the forfeiture

19-CA-239 7

requirement of La. R.S. 23:1208 to apply prospectively from the time of the

fraudulent act. See Leonard, supra, and Jim Walter Homes, Inc, supra.

In Leonard, the trial court found that the plaintiff had violated La. R.S.

23:1208 as of August 8, 1999, when it was determined that the plaintiff had made

false statements in order to obtain drugs, and therefore forfeited his rights to all

workers’ compensation benefits from that date forward. Leonard, 879 So.2d at

729. On appeal, the First Circuit, sitting en banc, affirmed and thus overruled its

previous opinion in LeBlanc v. Grand Isle Shipyard, Inc., 95-2452 (La. App. 1 Cir.

6/28/96), 676 So.2d 1157. The court found that forfeiture becomes effective at the

time of the misrepresentation, rather than at the time of the accident. Id. at 730.

The court did not find St. Bernard to be applicable to its analysis since the court in

St. Bernard did not address when the forfeiture was to be effective. Instead, in

support, the court considered the jurisprudential rules on statutory interpretation to

find that the word “any” in the statute is quantitative and not temporal. The court

stated that retroactive application would not result in “forfeiture” of benefits, but

rather would in effect be a “denial” of benefits if it included benefits to which the

employee was entitled. Id.

Three separate concurrences with assigned reasons written by Judge

Whipple, Judge Kuhn, and Judge McClendon agreed with the majority’s

conclusion, but found support by looking at the statute as a whole. Id. at 731-33.

The concurrences focused specifically on La. R.S.23:1208(D), which provides:

In addition to the criminal penalties provided for in Subsection C of
this Section, any person violating the provisions of this Section may
be assessed civil penalties by the workers’ compensation judge of not
less than five hundred dollars nor more than five thousand dollars, and
may be ordered to make restitution. Restitution may only be ordered
for benefits claimed or payments obtained through fraud and only up
to the time the employer became aware of the fraudulent conduct.

(Emphasis added.)

19-CA-239 8

Under La. R.S. 23:1208(D), the claimant would only owe restitution for the

benefits fraudulently obtained, not all benefits ever paid. In her concurrence,

Judge Whipple reasoned that if La. R.S. 23:1208(E) were to provide that,

regardless of when the misrepresentation occurs, forfeiture of all benefits is

retroactive to the date of the accident, then presumably, the claimant should owe

reimbursement of all benefits to which he had ever been entitled. However, La.

R.S. 23:1208(D) does not provide for such reimbursement. Leonard, 879 So.2d at

731.

In a dissent, Chief Judge Carter found that the clear and unambiguous

language of La. R.S. 23:1208, the Supreme Court’s decisions in St. Bernard and

Resweber, and the First Circuit’s previous decision in Leblanc, lead to the

“inescapable conclusion” that any fraudulent conduct or misrepresentation by a

workers’ compensation claimant, regardless of when it occurred, results in the

forfeiture of any and all benefits. Leonard, 879 So.2d at 733-34. Chief Judge

Carter found that there is no limiting language for the effective period applicable to

forfeiture of benefits in the statute, in St. Bernard, or in Resweber. Id. at 734.

Further, he reasoned that if the legislature had intended to limit the forfeiture as the

majority found, it could have done so like it did in subsection D of La. R.S.

23:1208. However, it did not. Id.

In Jim Walter Homes, the Third Circuit also interpreted the forfeiture

requirement of La. R.S. 23:1208 to apply prospectively from the time of the

fraudulent act. There, the trial court found that the plaintiff made a false statement,

willfully, for the purpose of receiving workers’ compensation benefits, and

therefore he violated La. R.S. 23:1208. Jim Walter Homes, 934 So.2d at 242. The

trial court adjudged that the forfeiture applied only to benefits which might have

been owed after the occurrence of the violation. Id. at 242-43. On appeal, the

Third Circuit affirmed. The court reasoned that if La. R.S. 23:1208(E) were

19-CA-239 9

applied retroactively to the date when benefits first accrued, a claimant would lose

all benefits, not just those for which there is actual proof that benefits are being

obtained or continued via a false, willful statement. Id. at 246-47. The court stated

that if the legislature meant to provide for retroactive application, the words

“retroactive to the date when benefits accrued” would have to have been included

in La. R.S. 23:1208(E). The court stated that to provide otherwise would strictly

construe the penalty provision in favor of the employer and not the claimant. Id. at

247. The court also relied on its previous opinion, Apeck Const., Inc. v. Bowers,

03-486 (La. App. 3 Cir. 12/10/03), 862 So.2d 1087, writ denied, 04-0459 (La.

4/23/04), 870 So.2d 301. In Apeck, the court considered the Supreme Court’s

opinion in St. Bernard, but found it never addressed the issue of when forfeiture

begins. Id. at 1092. In its analysis, the court considered La. R.S. 23:1208(D) and

stated:

As indicated by Subsection D, it is clear that the intent of the
legislature was to punish claimants who make false statements or
representation to obtain benefits. Otherwise, the legislature would
have provided restitution for any workers’ compensation benefits that
the employer paid before it became aware of the fraudulent conduct.

The reason for this is simple. Before the misrepresentation,
there has been no punishable conduct. The triggering mechanism is
the fraudulent conduct. Resweber, 660 So.2d 7, (See footnote 7).
Once the misrepresentation occurs, the provisions of La. R.S. 23:1208
apply, and from that point the claimant’s right to benefits is forfeited.
Any other interpretation would have the effect of promoting a system
whereby the employers would fail to commence the payment of
workers’ compensation benefits in the hope of a future false statement
which would relieve it completely of the obligation of paying
workers’ compensation benefits, including its own actions which
would be punishable under the Workers’ Compensation Act. This
would thwart the purpose of the Workers’ Compensation Act which
“was passed for the joint benefit of labor and management in order to
insure that employees who became disabled as a result of their labors
in hazardous industries would have, during the period of their
disability, a weekly income for the upkeep of themselves and their
families.” O’Regan v. Preferred Enters., Inc., 98-1602, p. 5 (La.
3/17/00), 758 So.2d 124, 128 (quoting Atchison v. May, 201 La. 1003,
10 So.2d 785, 788 (1942)).
Id. at 1093.

19-CA-239 10

The interpretation of any statutory provision starts with the language of the

statute itself. Dejoie v. Medley, 08-2223 (La. 5/5/09), 9 So.3d 826, 829; Faget v.

Faget, 10-188 (La. 11/30/10), 53 So.3d 414, 420. When the wording of a revised

statute is clear and unambiguous and its application does not lead to absurd

consequences, its language must be given effect, and its provisions must be

construed so as to give effect to the purpose indicated by a fair interpretation of the

language used. La. C.C. art. 9; La. R.S. 1:4; Cleco Evangeline, L.L.C. v. Louisiana

Tax Commission, 01-2162 (La. 4/3/02), 813 So.2d 351, 354. Words and phrases

shall be construed according to the common and approved usage of the language.

La. R.S. 1:3.

Upon review, though possibly harsh, we find the language of La. R.S

23:1208(E)—“Any employee violating this Section shall, upon determination by

workers’ compensation judge, forfeit any right to compensation benefits under this

Chapter.” (Emphasis added.)—to be clear and unambiguous. We therefore find

that La. R.S. 23:1208 as written requires the forfeiture of all benefits, regardless of

when the fraudulent conduct or misrepresentation occurs. We find this holding to

be supported by the Supreme Court’s analysis in St. Bernard, supra. Further, we

agree with Chief Judge Carter’s dissent in Leonard, supra, that if the legislature

had intended to limit the application of time, as it did in La. R.S. 23:1208(D), it

would have clearly expressed that in the statute.

We recognize that the application and interpretation of La. R.S. 23:1208 is

divergent among the state’s appellate circuits. Though Ms. Moran relies on cases

from the First and Third Circuits, the holdings of other Circuits are generally

persuasive, but not binding on this Court.

Accordingly, we find no merit to Ms. Moran’s argument that the trial court

erred in denying benefits, and further, penalties and attorney’s fees, from the date

of the accident until March 13, 2018.

19-CA-239 11

In light of the above, defendants’ answer to the appeal, asserting that if this

Court finds that Ms. Moran’s benefits were not forfeited, the workers’

compensation judge erred in determining that Ms. Moran suffered a compensable,

work-related injury, is rendered moot.

CONCLUSION

Accordingly, for the foregoing reasons, the judgment of the trial court under

review is affirmed.

AFFIRMED

19-CA-239 12

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
DECEMBER 26, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

19-CA-239
E-NOTIFIED
OFFICE OF WORKERS' COMPENSATION, DISTRICT 7 (CLERK)
HON. SHANNON BRUNO BISHOP (DISTRICT JUDGE)
WADE A. LANGLOIS, III (APPELLEE) BRITTANY A. COOPER (APPELLEE) ANDREW C. BLASINI (APPELLEE)

MAILED
DAREN SARPHIE (APPELLANT)
ATTORNEY AT LAW
3045 RIDGELAKE DRIVE
SUITE 203
METAIRIE, LA 70002