Edwin J. Dupuis v. Picard Steel Erectors, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

WCA 04-172

EDWIN J. DUPUIS

VERSUS

PICARD STEEL ERECTORS, INC.

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APPEAL FROM THE
OFFICE OF WORKERS' COMPENSATION - # 4
PARISH OF LAFAYETTE, NO. 02-07092
SHARON MORROW, WORKERS’ COMPENSATION JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Michael G. Sullivan, and Elizabeth A. Pickett,
Judges.

REVERSED.

Michael Keith Leger
DeJean & Leger, L.L.C.
806 S. Main
Opelousas, LA 70570
(337) 948-9066
Counsel for: Plaintiff-Appellant
Edwin J. Dupuis

Debra Talbot Parker
Johnson, Stiltner & Rahman
P. O. Box 98001
Baton Rouge, LA 70898-8001
(225) 930-0437
Counsel for: Defendant-Appellee
Picard Steel Erectors, Inc.

SANDERS, J.

Edwin Dupuis was an employee of Picard Steel Erectors, Inc., when he

allegedly suffered a work-related injury. He received workers’ compensation benefits

for a year and a half before they were terminated. On termination, he filed a 1008

claim. The Workers’ Compensation Judge denied Mr. Dupuis’ request based on

La.R.S. 23:1208.1

FACTS

In 1982, mR. Dupuis suffered a work-related injury while employed with S&S

Steel. This injury occurred when he fell twenty-four feet off a building. He received

workers’ compensation benefits for that injury for approximately 16 years. In 1997,

he began constructing carports.

In August 2000, Mr. Dupuis and his wife, Tina, went to Picard Steel Erectors,

Inc., where Mr. Dupuis applied for a job. Mrs. Dupuis testified that she completed

the employment application due to Mr. Dupuis’ limited educational background. The

following day, Mr. Dupuis reported to work and at some point was given a medical

questionnaire to complete. There is some dispute as to what form he was given and

who completed the form. However, Mr. Dupuis did state that he signed a form

provided to him by Jeff Picard, the owner of Picard Steel Erectors, Inc. The medical

questionnaire contained a check mark in the “no” box for every medical condition

listed.

In January 2001, a delivery driver of S&S Steel saw Mr. Dupuis at Picard Steel

and asked Troy Thomasee, a supervisor, about Mr. Dupuis’ previous injury and his

overall health. Mr. Thomasee then told Mr. Picard of the delivery driver’s

comments. Mr. Dupuis stated that Mr. Picard asked him about the incident and, at

that time, he informed Mr. Picard of the prior accident and injury, but indicated that

he was currently pain free. It appears that nothing was ever done in reference to the

new information. The medical questionnaire was not revised, and Mr. Dupuis

remained an employee.

Mr. Dupuis contends that on April 16, 2001, he suffered a back injury while

manually pulling a bar joist, weighing 150-200 pounds, from the ground to the second

floor. Somehow the rope slipped, causing a jerk in the claimant’s back. It is unclear

whether the other co-workers knew of the injury immediately thereafter, but Mr.

Thomasee, the supervisor, was informed that day or the following day. Mr. Dupuis

continued to work the remainder of the day and the rest of the week. On the

following Sunday night, Mr. Dupuis telephoned Mr. Thomasee and told him that he

thought he needed to see a doctor. On Monday, April 23, 2001, Mr. Picard sent Mr.

Dupuis to the emergency room. An accident report was completed by Picard Steel

Erectors, Inc., on April 26, 2001, listing the date of injury as April 16, 2001. From

April 23, 2001, the claimant saw several doctors for treatment, but was unable to

return to work. He received workers’ compensation benefits until June 12, 2002,

when they were terminated.

PROCEDURAL FACTS

Mr. Dupuis became an employee of Picard Steel Erectors in August of 2000,

and allegedly suffered a work-related back injury April 16, 2001. He received

workers’ compensation until June 12, 2002.

On January 10, 2003, the Louisiana Worker’s Compensation Second Injury

Board denied Louisiana Worker’s Compensation Corporation’s (Picard Steel

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Erectors, Inc.’s worker’s compensation insurer) claim for reimbursement from the

second injury fund. On February 7, 2003, they appealed the board’s decision.

On August 5, 2003, the claimant filed a 1008 requesting back indemnity

compensation, weekly indemnity benefits, medical benefits, penalties, attorney fees

and costs. The Workers’ Compensation Judge denied the claimant’s request based

on La.R.S. 23:1208.1. Edwin Dupuis timely filed a devolutive appeal on October 23,

2003.

ASSIGNMENTS OF ERROR

1) The Workers’ Compensation Judge erred in finding a violation of LSA-
R.S. 23:1208.1 forfeiting benefits and failing to award workers’
compensation benefits to the claimant in the form of weekly indemnity
benefits and medical benefits.

2) The Workers’ Compensation Judge erred in failing to award penalties
and attorneys fees to the claimant based on the defendant’s handling of
the claim.

LAW AND ANALYSIS

Findings of the trial court are reviewable on appeal, and the appellate standard

of review has been clearly established. A trial judge’s findings of fact will not be

disturbed unless they are manifestly erroneous or clearly wrong. Stobart v. State,

through Dep’t of Transp. & Dev., 617 So.2d 880 (La. 1993). “Absent ‘manifest error’

or unless it is ‘clearly wrong,’ the jury or trial court’s findings of fact may not be

disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La.

1990). “If the trial court or jury’s findings are reasonable in light of the record

reviewed in its entirety, the court of appeal may not reverse, even though convinced

that had it been sitting as the trier of fact, it would have weighed the evidence

differently.” Id. at 1112.

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ASSIGNMENTS OF ERROR NUMBER ONE

The claimant’s first assignment of error concerns the application of La.R.S.

23:1208.1, which provides:

Nothing in this title shall prohibit an employer from inquiring about
previous injuries, disabilities, or other medical conditions and the
employee shall answer truthfully; failure to answer truthfully shall result
in the employee’s forfeiture of benefits under this Chapter, provided said
failure to answer directly relates to the medical condition for which a
claim for benefits is made or affects the employer’s ability to receive
reimbursement from the second injury fund. This Section shall not be
enforceable unless the written form on which the inquiries about
previous medical conditions are made contains a notice advising the
employee that his failure to answer truthfully may result in his forfeiture
of worker’s compensation benefits under R.S. 23:1208.1. Such notice
shall be prominently displayed in bold faced block lettering of no less
than ten point type.

The Louisiana Supreme Court discussed La.R.S. 23:1208.1 in detail in Nabors

Drilling USA v. Davis, 03-0136 (La. 10/21/03), 857 So.2d 407. Davis had suffered

an injury to his right shoulder and right knee in 1994 and surgery was performed in

September 1994. In 2000, Davis began working for Nabors and completed a medical

questionnaire. He responded negative to specific questions about surgery and injury

incurred at work. On November 14, 2000, he suffered a back and leg injury. The

employer argued that Davis’ failure to truthfully answer the question resulted in a loss

of benefits.

The court stated, “La.R.S. 23:1208.1 provides for forfeiture under three

circumstances. There must be (1) an untruthful statement; (2) prejudice to the

employer; and (3) compliance with the notice requirements of the statute.” Id. at 414.

The court did not focus on the claimant’s untrue statement but on whether it

prejudiced the employer. “Thus, it is not every untruthful statement on a medical

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history questionnaire that will result in the forfeiture of workers’ compensation

benefits for a subsequent work-related injury. It is only those statements that rise to

the level of meeting the statutory proviso of La.R.S. 23:1208.1 that will subject the

employee to forfeiture.” Id. at 414-15.

For there to be prejudice to the employer, “the untruthful statement must

‘directly relate “[]” to the medical condition for which a claim for benefits is made’,

or it must affect the employer’s ability to receive reimbursement from the second

injury fund.” Id. at 415. The question before the court today is whether the employer

has been prejudiced. It is uncontested that on hiring, the defendant did not know of

the plaintiff’s previous injury. Also uncontested is that in January 2001, prior to the

alleged subsequent injury, the employer was put on notice by the delivery driver’s

discussion of Mr. Dupuis’ previous injury.

The Workers’ Compensation Judge stated in her ruling, “I think that the form

has the requisite notice, has several notices on several different pages. I think the

condition directly relates to the injury today, and I think also there’s clear evidence

of prejudice with the second injury fund. I think it’s a 1208.1 case. That’s my ruling

today.”

The fact that one can find a false statement violation in La.R.S. 23:1208.1 does

not automatically prohibit workers’ compensation benefits. The Workers’

Compensation Judge incorrectly found that the employer had been prejudiced when

the employer knew of the previous injury and failed to take corrective measures. The

Workers’ Compensation Judge did not discuss the fact that the delivery driver told

Mr. Thomasee about the claimant’s injury, nor the fact that the owner, Jeff Picard,

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discussed the injury with the claimant and retained the claimant as an employee.

Also, the Workers’ Compensation Judge did not discuss the fact that the defendant

made an affirmative assertion in its application to the second injury fund that they had

notice of the previous injury.

The second prong of the Nabors’ test is that the purpose of this provision is to

allow the employer to put the second injury fund on notice of the prior injury so as

to be able to access that fund if it later becomes necessary. Therefore, if the employee

does not tell the employer of the previous injury, the employer is prejudiced and

unable to access the second injury fund. In that case, loss of compensation serves not

only to punish the employee but, more importantly, as a protection for the employer.

However, once the employer has knowledge of the previous injury and has the

opportunity to correct the misinformation, then any prejudice caused by the

employee’s failure to disclose is negated, as the employer is made whole and given

the opportunity to put the second injury fund on notice. Moreover, once the employer

knows, he can reassess the working conditions and make any appropriate

accommodations. It is thus fair to say that the newly acquired knowledge puts the

employer in the same position that he would have been in if he had been given

accurate information originally.

At this point, if the employer does not act on the newly acquired information,

it is his own failure to act that prejudices him and not the employee’s misinformation.

Therefore, the final prong addressing the employer’s ability to recover from the

second injury fund is not met, as the employer had notice, ample time, and the ability

to protect itself by giving the second injury fund notice. Accordingly, equity dictates

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that the employer should suffer from his act of omission and not the employee. To

hold otherwise would put the employee in the position of being forever barred from

workers’ compensation eligibility long after the employer has been apprised of the

injury and the rationale for the forfeiture provision has been eradicated. Accordingly,

we reverse the finding that the employer had been prejudiced under La.R.S.

23:1208.1.

The Workers’ Compensation Judge did not render a decision as to whether an

accident had indeed occurred, and if it did, whether that accident cause the claimant’s

injury. “When such a prejudicial error of law skews the trial court’s finding of a

material issue of fact and causes it to pretermit other issues, the appellate court is

required, if it can, to render judgment on the record by applying the correct law and

determining the essential facts de novo.” Lasha v. Olin Corp., 625 So.2d 1002, 1006,

(La. 1993)

Therefore, we must decide whether Mr. Dupuis did in fact, suffer a work-

related accident and injury. “‘Accident’ means an unexpected or unforseen actual,

identifiable, precipitous event happening suddenly or violently, with or without

human fault, and directly producing at the time objective findings of an injury which

is more than simply a gradual deterioration or progressive deterioration.” La.R.S.

23:1021(1).

On April 16, 2001, Mr. Dupuis was manually lifting a bar joist weighing 150-

200 pounds when he felt a “jerk” in his back. Manually lifting the bar joist was an

expected job duty when mechanical equipment was unavailable or unable to perform

the job. If, indeed, Mr. Dupuis injured his back as described, this would be

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considered an accident.

Louisiana courts consistently have interpreted the work-related
accident requirement liberally. Indeed, it is well-settled in Louisiana
that an “accident” exists when “heavy lifting or other strenuous efforts,
although usual and customary, cause or contribute to a physical
breakdown or accelerate its occurrence because of a pre-existing
condition.” Moreover, Louisiana courts view the question of whether
there was an accident from the worker’s perspective.

Bruno v. Harbert Int’l. Inc., 593 So.2d 357, 360 (La. 1992) (citations omitted).

Although the court looks to see if an accident occurred from the worker’s

perspective, the worker still bears the burden of proving there was an accident:

A worker’s testimony alone may be sufficient to discharge this burden
of proof, provided two elements are satisfied: (1) no other evidence
discredits or casts serious doubts upon the worker’s version of the
incident; and (2) the worker’s testimony is corroborated by the
circumstances following the alleged incident. . . . Corroboration may
also be provided by medical evidence.

Id. at 361.

Mr. Dupuis stated that he hurt his back when pulling on the rope to raise the

bar joist. Not one of his co-workers contests this statement. No one disputes that Mr.

Dupuis was engaged in raising the bar joist. One discrepancy is that Mr. Dupuis

stated that Ronald Guidry had to help him with the beam, but Mr. Guidry said that he

did not help him with the beam. However, the main discrepancy surrounds the timing

of when he told his co-workers of his injury. It is important to point out that the co-

workers’ statements were taken approximately two years after the injury. Mr. Dupuis

says that he told them then or shortly thereafter, whereas they say it was days later

before they were aware that he suffered an injury. Mr. Guidry said he was told the

next day or the day after. Mr. Thomasee says he was told later that same day or the

next day. “[M]erely because a worker completes a day’s work without reporting an

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accident does not preclude the worker from receiving compensation.” Id. at 362.

The co-workers all state that Mr. Dupuis was a good worker and that he was

not a complainer, therefore, it is reasonable that he may not have informed them that

very day. It is also plausible that the passage of two years could have compromised

their memories. Even if he did not immediately report this to a supervisor, it is

clearly understandable, considering that he testified that he assumed he had pulled a

muscle. Accordingly, we hold that prong one of the Bruno test is met, as Mr. Dupuis’

version of the incident is not discredited. The credibility problems the defendant

presents revolve around outside issues of the plaintiff’s life, and not this specific

injury.

The second requirement of the Bruno test is corroboration. Corroboration may

be in the form of medical evidence. Mr. Dupuis did not see a doctor for about a week

after his injury, but this is not unusual when a person believes he has suffered a pulled

muscle and hopes to recover without medical intervention. Medical evidence from

this injury corroborates Mr. Dupuis’ testimony that he suffered an injury. The

previous injury suffered twenty years earlier was diagnosed as a compression fracture

of L2-L4 with L2 having a fifteen percent compression and L4 having an anterior

superior chip fracture. Each time Mr. Dupuis sought medical aid for his present

injury, he informed all of the doctors of his prior injury. An MRI performed on June

1, 2001, showed a disc protrusion at L3-4 with associated ostephyte formation. On

July 11, 2001, a post myleogram CT found a tiny left posterolateral protrusion at L4-5

and a broad base cervical protrusion at L5-S1. A functional capacity evaluation

conducted April 23-24, 2002 revealed a functional level of sedentary. The medical

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evidence presented clearly corroborates the claimant’s testimony that he suffered an

injury and that this injury is not the same as the previous injury.

The accident report completed by Mr. Thomasee indicated the date of injury

as April 16, 2001, and that Mr. Dupuis was injured while pulling on a rope. That

report also suggested that future actions be undertaken only by two men on each side.

Also, the defendant sought compensation from the second injury fund but was denied,

and in their appeal, they stated that the claimant was injured on April 16, 2001 and

that the defendant knew of the claimant’s prior injury. Based on the foregoing

discussion, we find that the claimant did suffer a work-related accident that did cause

his present injury. “If an employee not otherwise eliminated from the benefits of this

Chapter receives personal injury by accident out of an in the course of his

employment, his employer shall pay compensation in the amounts, on the conditions,

and to the person or persons hereinafter designated.” La.R.S. 23:1031(A). We

therefore reverse the Workers’ Compensation Judge and order that workers’

compensation and medical benefits be reinstated, as well as back indemnity

compensation from date of termination.

ASSIGNMENT OF ERROR NUMBER TWO

The plaintiff requested penalties and attorney fees, however, we find that they

are not appropriate in this case. We affirm the Workers’ Compensation Judge’s

failure to grant penalties and attorney fees. In order for the plaintiff to recover

penalties and attorney fees, there must be a showing that the defendant did not raise

a seriously disputed issue. To reasonably controvert claim, for purposes of

determining whether worker’s compensation claimant is entitled to penalties and

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attorney fees based on employer’s failure to pay benefits, employer must have some

valid reason or evidence upon which to base his denial of benefits. Johnson v.

Johnson Controls, Inc., 38,495, pp. 16-17 (La.App. 2 Cir. 5/12/04), 873 So.2d 923,

933-34. The defendant had a legitimate defense because the plaintiff failed to

disclose his prior injury and this area has been the subject matter of much debate.

Provision of worker’s compensation statute authorizing award of attorney fees to

claimant is penal in nature and, thus, must be strictly construed and employer should

not be penalized for taking close factual or legal question to court for resolution.

Lindon v. Terminix Servs., Inc., 617 So. 2d 1251, 1253 (La.App.3 Cir.), writ denied,

624 So.2d 1226 (La. 1993).

CONCLUSION

We therefore reverse the Workers’ Compensation Judge’s decision to deny

compensation and order that compensation be immediately reinstated. Costs of this

appeal are assessed to Picard Steel Erectors, Inc.

REVERSED.

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