Ronald Lanclos v. Coastal Food, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-222

RONALD LANCLOS

VERSUS

COASTAL FOOD, LLC

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APPEAL FROM THE
OFFICE OF WORKERS' COMPENSATION - # 2
PARISH OF RAPIDES, NO. 02-01270
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

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MARC T. AMY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billie Colombaro
Woodard, and Marc T. Amy, Judges.

AFFIRMED AS AMENDED.

Douglas J. Cochran
McKay, Williamson, Lutgring & Cochran
723 North Boulevard
Baton Rouge, LA 70802
(225) 389-1060
COUNSEL FOR DEFENDANT/APPELLANT:
Coastal Food, LLC

Harry K. Burdette
The Glenn Armentor Law Corporation
300 Stewart Street
Lafayette, LA 70501
(337) 233-1471
COUNSEL FOR PLAINTIFF/APPELLEE:
Ronald Lanclos

AMY, Judge.

In this workers’ compensation matter, the employee-claimant contested the

termination of his indemnity benefits and also sought attorney’s fees and penalties,

alleging that the employer had improperly calculated his average weekly wage and the

corresponding weekly indemnification rate; had untimely paid weekly indemnity and

medical benefits; had untimely approved medical benefits; had failed to approve his

choice of physician; and had failed to timely provide a copy of a second medical

opinion examination performed at the employer’s request. The employer, in turn,

argued that the employee’s benefits were terminated because he failed to truthfully

disclose a prior neck injury, thereby committing fraud. After a hearing, the workers’

compensation judge ruled in favor of the employee. The employer’s workers’

compensation insurer appeals. For the following reasons, we affirm the ruling as

amended.

Factual and Procedural Background

The record indicates that during the early morning hours of February 21, 2001,

Ronald Lanclos (hereinafter “Mr. Lanclos” or “the claimant”), a delivery driver for

Coastal Food, L.L.C., was working at a dock in Cameron, Louisiana, loading groceries

into a metal container for transport offshore. At the disputed-claim hearing in the

matter, Mr. Lanclos testified that this particular container previously held used

cooking oil that had been shipped back to land from offshore, and some of this oil had

leaked onto the container’s floor. Mr. Lanclos recalled that when he had filled the

container between one-half and three-quarters full, he slipped on the cooking oil and

struck the side of the container’s metal doorframe from the center of his back to the

back of his neck. He testified that because the injury occurred in the early morning

hours, there was no one at Coastal’s office to whom he could report the injury, but

after the office opened in the morning, he spoke with office personnel and came in to

file an accident report.

Mr. Lanclos testified that when it was apparent that his injury would not resolve

itself, he went to the emergency room at Opelousas General Hospital. The record

reflects that during this initial visit to Opelousas General, a CT scan was performed,

and the results showed injuries to Mr. Lanclos’ spine. Accordingly, the emergency-

room physician referred him to Dr. Morgan Lorio, an orthopedist, for further

treatment. Dr. Lorio, in turn, ordered an MRI, which also indicated spinal injuries.

However, the record reflects that Mr. Lanclos’ treatment with Dr. Lorio ceased when

Dr. Lorio closed his practice in Louisiana and moved to Tennessee. Accordingly, Mr.

Lanclos contacted his employer’s workers’ compensation insurer, Louisiana

Restaurant Association Self Insurers Fund (“LRASIF”), and requested approval to

consult Dr. Michel Heard, an orthopedist, for further treatment. Dr. Heard

subsequently recommended that the claimant consult Dr. Alan Appley, a

neurosurgeon. Mr. Lanclos asserted at the disputed-claim hearing that Coastal Food

and LRASIF never approved treatment with Dr. Heard and never paid any of the

associated costs incurred; in addition, he pointed out, Coastal Food and LRASIF never

paid any of his medical expenses. Moreover, the claimant noted that as of the time of

hearing, an MRI requested by Dr. Heard had not been approved.

Mr. Lanclos filed the initial disputed claim on February 21, 2002, in which he

complained that his wage benefits had been terminated or reduced on or around March

5, 2001. In his first amendment to the disputed claim, filed March 26, 2003, Mr.

Lanclos asserted that Coastal Food and LRASIF had improperly calculated his

average weekly wage and his weekly indemnification rate; that they had untimely paid

weekly indemnity benefits; that they had untimely approved and untimely paid

2

medical benefits; and that they had failed to approve the claimant’s choice of

physician in the field of orthopedics, Dr. Michel Heard. Moreover, in his pre-trial

statement, Mr. Lanclos requested attorney’s fees and penalties for arbitrary and

capricious conduct. In yet another amendment to the original disputed claim filed

before the hearing, Mr. Lanclos insisted that Coastal Food and LRASIF did not timely

provide him a copy of a second medical opinion report and sought penalties and

attorney’s fees accordingly. In the meantime, Coastal Food and LRASIF filed a

disputed-claim form on August 13, 2001, in which they explained that the claimant’s

benefits were suspended due to his not having accepted light-duty work offered by

Coastal Food and for failing to truthfully inform Coastal of his prior medical

condition.1

The instant claim was heard by a workers’ compensation judge on November

7, 2003. During the proceedings, Newton Thomas, the insurance adjuster assigned to

the case, testified that Mr. Lanclos’ benefits were terminated based upon what he

perceived to be fraudulent conduct on Mr. Lanclos’ part. Mr. Thomas stated that he

was suspicious of Mr. Lanclos’ claims owing to inconsistencies in the manner in

1
This matter was also heard by the Second Injury Board, who denied LRASIF’s claim in a
ruling signed July 12, 2002. Its report contains the following findings of fact:
On or about February 20, 2001 while in the course and scope of employment,
the employee was injured while taking some used containers of grease out of the
grocery box.
The accident occurred on February 20, 2001. The first weekly compensation
benefits were paid on March 12, 2001 and the claim was filed with the Second Injury
Board on December 19, 2001; therefore, it was timely filed.
There is no evidence that the employee had the pre-existing permanent partial
disability as defined by R.S. 23:1378(F) prior to the subsequent injury of February
20, 2001.
The employer has not established that they had knowledge of the employee’s
pre-existing permanent partial disability (if any) prior to the subsequent injury of
February 20, 2001, as required by R.S. 23:1378(A).
Further, the Second Injury Board finds that even if there were a pre-existing
permanent partial disability that would meet the requirements of R.S. 23:1378(F), it
would not merge or combine with the subsequent injury in accordance with R.S.
23:1371(C). Additionally, the Second Injury Board finds that the subsequent injury
was not caused or brought about by the existence of any pre-existing disability.

3

which he described the accident to his superiors at Coastal. Mr. Thomas further

indicated that he decided to terminate the claimant’s benefits under La.R.S. 23:1208.1

in consideration of the following factors: (1) the claimant had not disclosed prior

medical history on his post-hire questionnaire; (2) he had not told the truth and failed

to mention his prior neck problem during his recorded statement; (3) he told Drs.

Morgan Lorio and Greg Gidman about his prior neck injury but did not tell Mr.

Thomas; and (4) certain information found in the records of Dr. Thomas Bertuccini,

who treated the claimant for an injury sustained in 1994. Mr. Thomas pointed out that

the claimant’s prior medical history, as outlined by Drs. Lorio and Gidman, reflected

that the claimant had complained of neck pain before the accident at issue. Mr.

Thomas further explained that the claimant’s prior neck injury had been documented

as a herniated cervical disc and that this was confirmed by MRI. He noted that after

Mr. Lanclos told him that he had hit his neck and shoulder in a previous accident,

during the recorded statement taken by phone on February 23, 2001, he did not ask

specific questions about his neck; however, he said that when he asked the claimant

what kind of treatment was provided, this was the claimant’s opportunity to explain

his injury, his “chance to take the ball and run with it.” However, the claimant did not

provide further information.

Mr. Lanclos testified at the hearing in the matter that he was involved in an

accident in 1994 while working offshore for ENSCO Marine, explaining that he hit

a constavolt box with his shoulder when he was trying to change a fly wheel on a

generator on board a ship. The claimant indicated that he filled out an accident report

but did not consult a physician until a fire aboard the ship resulted in a lull in his

employment. He recalled that upon seeking medical attention, the injury was “worse

than [he initially] thought,” and his treating physician referred him to Dr. Thomas

4

Bertuccini, a Lafayette neurosurgeon. At the hearing below, the claimant maintained

that Dr. Bertuccini did not tell him that something was wrong with his neck but

merely referred him to Dr. Robert Franklin, a physical medicine and rehabilitation

specialist. Dr. Franklin, in turn, ordered a myelogram and a post-CT scan, both of

which Mr. Lanclos described as “negative.” The claimant was then released from

physicans’ care.

During the proceedings below, Mr. Lanclos contended that the 1994 accident

resulted in a shoulder injury and that this shoulder injury was the focus of all medical

treatment that he received. The claimant maintained that no one told him anything

about herniated discs. He likewise insisted that no doctor had previously told him that

he might need neck surgery. The claimant further recalled that an MRI showed a

small herniated disc at C4-5 that his treating physician described as “inconsequential,”

and he pointed out that this “herniation” did not appear on a myelogram. In fact, Mr.

Lanclos stated, this physician released him without informing him that he had a

cervical problem. However, with respect to the present state of his cervical spine

following the 2001 injury, the claimant indicated that there were problems with two

to three discs, one of which needed to be removed. He further commented that he has

conferred with Dr. Heard about this prospective surgery, and Dr. Heard has instructed

him not to work.

The workers’ compensation judge ruled in favor of Mr. Lanclos, awarding him,

inter alia, temporary total disability benefits, medical expenses, and attorney’s fees.

From this judgment, LRASIF appeals, asserting the following assignments of error:

1. The trial court erred in its determination that Coastal and LRASIF did
not establish that Mr. Lanclos committed fraud in violation of La.R.S.
23:1208.1, particularly in finding that Mr. Lanclos’ untruthful answers
were not directly related to the medical condition at issue.

5

2. The trial court erred in concluding that Coastal and LRASIF did not
establish that Mr. Lanclos committed fraud in violation of La.R.S.
23:1208.1, particularly in determining that Mr. Lanclos’ untruthful
answers did not affect Coastal’s ability to receive Second Injury Fund
reimbursement, in that Coastal could not establish that Mr. Lanclos
suffered a previous permanent partial disability pursuant to La.R.S.
23:1378.

3. The trial court erred in granting attorney’s fees and penalties, as
Coastal did not act arbitrarily, capriciously, or without probable cause in
this matter.

Mr. Lanclos answers the appeal, seeking attorney’s fees for the improper

calculation of his average weekly wage and penalties for the employer’s improper

termination of indemnity benefits, untimely payment of medical and pharmacy bills,

and failure to approve treatment with Drs. Heard and Appley. Mr. Lanclos also

requests an award of attorney’s fees for efforts in defense of the instant appeal.

Discussion

Louisiana Revised Statute 23:1208.1

In its first two assignments of error, LRASIF contends that the workers’

compensation judge erred in concluding that Mr. Lanclos had not committed fraud in

violation of La.R.S. 23:1208.1. In particular, LRASIF asserts that the trial court erred

in concluding that Mr. Lanclos’ allegedly untruthful statements were not related to the

medical condition at issue and in concluding that any untruthful answers did not affect

its ability to recover from the Second Injury Fund. We turn to consideration of the

statute and the trial court’s findings regarding the statute.

Louisiana Revised Statute 23:1208.1, relied upon by LRASIF in support of its

decision to terminate Mr. Lanclos’ workers’ compensation benefits, provides as

follows:

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

6

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 [La.]R.S. 23:1208.1. Such
notice shall be prominently displayed in bold faced block lettering of no
less than ten point type.

In City of Eunice v. Carrier, 01-1184, pp. 3-5 (La.App. 3 Cir. 2/20/02), 821

So.2d 3, 7-8, a panel of this court presented the following summary of the elements

necessary to establish a case of fraud that would serve to forfeit a claimant’s benefits

pursuant to La.R.S. 23:1208.1:

There are three component parts to establishing a Section 1208.1
violation: (1) untruthfulness; (2) prejudice; and (3) notice.

Furthermore, the claimant must do more than simply provide
untruthful answers before forfeiting benefits. The employer must also
prove that the untruthful statements were prejudicial to it and that it
provided the employee with statutory notice. La.R.S. 23:1208.1 applies
when an employee is dishonest on an employer’s medical questionnaire
before the accident or injury. [Resweber v. Haroil Const. Co., 94-2708,
94-3138 (La.9/5/95), 660 So.2d 7.] In Resweber [Id.], the supreme court
concluded that the legislature imposed forfeiture under La.R.S.
23:1208.1 strictly for when the employer suffers prejudice. An employer
is prejudiced only when the false statement “directly relates to the
medical condition for which a claim is made or affects the employer’s
ability to receive reimbursement from the second injury fund.” [La.R.S.
23:1208.1.] An untruthful statement on the questionnaire regarding a
preexisting condition, may be prejudicial to the employer’s ability to
recover from a second injury fund. [Resweber, 660 So.2d 7.]

The employer may obtain medical information from the employee
about preexisting conditions. By reviewing the information provided on
the medical history questionnaire, the employer may determine if he has
hired a worker with a permanent partial disability for second injury fund
purposes. [Wise v. J.E. Merit Constrs., Inc., 707 So.2d 1214.] Permanent
partial disability is statutorily defined as “any permanent condition,
whether congenital or due to injury or disease, of such seriousness as to
constitute a hindrance or obstacle to obtaining employment or to
obtaining reemployment if the employee should become injured.”
[La.R.S. 23:1378(F).]

7

Because statutory forfeiture is a harsh remedy, its application must
be strictly construed. . . .
....
Moreover, in Wise [707 So.2d at 1217], the Louisiana Supreme
Court stated:

A work injury subsequent to a known permanent
partial disability qualifies an employer to seek
reimbursement for worker’s compensation benefits from a
statutorily designated “Second Injury Fund” under certain
circumstances. A claimant’s untruthful statement regarding
his permanent partial disability which prejudices his
employer’s ability to seek reimbursement from the fund
gives rise to an affirmative defense under La.R.S.
23:1208.1, whereby the injured employee forfeits all
compensation benefits.

Thus, forfeiture should occur under narrow circumstances. “There
must be an untruthful statement; prejudice to the employer; and
compliance with the notice requirements of the statute. An employer has
the burden of proving each element within the statute. The lack of any
one of the elements is fatal to an employer’s avoidance of liability.” [Id.
at 1218.]

With respect to an employer’s inquiries as to an employee’s medical history,

a panel of this court, in King v. Grand Cove Nursing Home, 93-779, p. 5 (La.App. 3

Cir. 3/9/94), 640 So.2d 348, 351, writ denied, 94-865 (La. 5/13/94), 641 So.2d 204,

commented that “[w]hen there is any legitimate ambiguity concerning the

questionnaire or inquiries into an employee’s medical history, a court should lean

favorably toward the employee in determining whether he knowlingly [sic] failed to

answer the questionnaire truthfully.” Further examination of the above-cited opinion

in Wise, in which the supreme court comments on King, is also helpful in this respect:

In King v. Grand Cove Nursing Home, a questionnaire not
narrowly tailored to provide the employer with knowledge about
preexisting conditions prejudicial to the employer’s second injury fund
reimbursement potential was found ambiguous. 93-779 (La.App. 3 Cir.
3/9/94), 640 So.2d 348, writ denied, 94-0865 (La.5/13/94), 641 So.2d
204. The King court observed that overly broad questions “could well
be interpreted as referring to a chronic or long standing condition.” Id.
at 352. We note that under those circumstances, the questions do not
serve the purposes of La.R.S. 23:1208.1 for which the legislature granted

8

the employer the right to make inquiries. On the contrary, such
questions are meaningless for the statute’s intended purpose. Therefore,
we agree with King that such ambiguous questionnaires are to be
construed against the employer in determining whether the employee
knowingly failed to answer the questionnaire truthfully.

Wise, 707 So.2d at 1219.

In his oral ruling, the workers’ compensation judge made the following

comments regarding Coastal’s assertion that Mr. Lanclos committed fraud in violation

of La.R.S. 23:1208.1:

It’s been put forth that Mr. Lanclos had violated Revised Statute
23:1208.1, which is case [sic] that applies to a false statement made prior
to any job action having taken place. . . .
....
What are the requirements to receive reimbursement from the second
injury fund? First, that there be a previous existing permanent partial
disability. Without a pre-existing permanent partial disability, it makes
not one iota what knowledge the employer has of any past medical
condition. They simply would not be able to recover from the second
injury fund because there’s no previous permanent partial disability.
23:1378-F has a listing of some 29 or 30 items which are presumed to be
permanent partial disabilities. A simple neck injury is not listed in there,
so if he had some previous neck injury, that’s not presumed to be a
permanent partial disability, and it must be proven that that was a
permanent partial disability. Item 26 is a ruptured intervertebral [sic]
disc, which is assumed to be a permanent partial disability. Dr.
Bertuccini’s testimony in his deposition was that when he discussed what
he found on the MRIs with Mr. Lanclos, he’s 99 percent sure he never
used the term “ruptured.” I asked Mr. Thomas if he knew what that term
meant, and he said he had to refer to his nurses. I asked Mr. Boudreaux
[Coastal’s general manager] if he knew what a ruptured intervertebral
[sic] disc meant. He didn’t know. I’m certainly positive Mr. Lanclos
has not a clue what the difference is between a ruptured disc, a herniated
disc, a bulging disc. I’ve applied the ordinary meaning of the word
“ruptured” to the statute and referred to the Webster’s Dictionary – the
New Riverside University Dictionary – they’ve got about a million
Webster’s Dictionaries now – and it defines it, “The process of breaking
open or bursting. The state of being open or burst.” We all know that
there are bulging discs which do not impinge the cords, there are bulging
discs which impinge the spinal cords [sic], and that there are frankly
ruptured discs where the cartilage and disc fragments which encompass
the jelly-like substance to constitute the shock-absorbing effect of a disc
bust [sic] open, and those fragments come out and impinge the cord. It’s
my conclusion that no doubt, that’s what has been referred to in 23:1378-
F, Sub-section [sic] 26, when they talk about ruptured intervertebral [sic]

9

discs. Of course, there’s been no showing in this case that Mr. Lanclos
ever had such a ruptured disc in the past. There’s been no showing from
the records of Dr. Bertuccini, Dr. Franklin or any physician in this case,
for that matter, that Mr. Lanclos was ever assigned a percentage
disability or restricted permanently from performing full and heavy duty
work from any incident that may have occurred in 1994. What one
really finds when one does a thorough review of those records in the past
is that, in fact, Mr. Lanclos injured his shoulder and went to Dr. Gaar, the
first doctor, and he says, “I’ve injured my shoulder, and I want you to
check out my shoulder,” which is what Dr. Gaar begins to check out.
Then Mr. Lanclos gets himself an attorney. They can’t seem to be
finding [sic] anything wrong with his shoulder. The attorney makes the
suggestion, “Why don’t we send him to a neurosurgeon and see if we can
check this out further?” Hence, he gets to [sic] Dr. Bertuccini, who does
the test of the MRI. His records are not clear whether there’s a focal
protrusion, a herniation. It’s certainly clear that there is no rupture, but
his records are also clear that the source of Mr. Lanclos’ neck pain from
the 1994 incident was not anything [sic] to do with the conditions found
in his neck at that time by any of the studies. The employer had Dr.
Gidman review all the previous records and review the films. Dr.
Gidman noted that a myelogram and a post-myelogram CT is a much
more sophisticated and sensitive test than an MRI. In his conclusion
[sic] from the review of the previous MRI and the post-myelogram CT
scan was that there was no protrusion or herniation at C5-6 in the past.
It was merely bony hypertrophy, a mild arthritic condition. I could find
no questioning of any other physicians as to whether or not the past
medical conditions identified in Mr. Lanclos’ neck made it inevitable
that his current condition would be directly related to the past problems.
There seems to be an implication of that in Dr. Lorio’s medical records,
but we don’t have the deposition of Dr. Lorio. We have the information
from Dr. Bertuccini that that wasn’t even the source of his problem in the
past, and we have Dr. Gidman’s testimony that he couldn’t make that
relationship, either – that he thought it was arthritis, and arthritis
progresses over time. Maybe it’s possible, but he couldn’t say for sure.
So it’s pretty obvious to this Court that the underlying crux of the
23:1208.1 [sic] is that there has been a misrepresentation about a known
pre-existing permanent partial disability which requires somewhere in
the record, the proof of a known pervious partial disability, and I don’t
find it in this record anywhere. And I have reviewed it very thoroughly.
The records indicate that the subsequent MRIs taken after the accident
in question do show changes or differences than those found in the
previous MRIs, which was acknowledged by Dr. Gidman in his
deposition. Dr. Lorio took Mr. Lanclos off of work. Dr. Gidman said he
might be able to do light-duty work. I don’t accept the testimony of Mr.
Simon and Mr. Boudreaux that they offered light duty to Mr. Lanclos,
and he declined coming back, because that’s simply contrary to the
record and common sense because he went to work at Acadiana Textiles,
where they didn’t offer him any light duty. . . . [Mr. Lanclos is] not a
very credible human being, I must admit. He has not made, from the

10

records I’ve seen, truthful comments in his job applications to Acadiana
Textiles. He claimed to work with some flatbed trucking company, and
he testified in court, “No, I never worked there.” And he seems to have
the response to, “I don’t remember” [sic] to too many questions posed to
him in the trial today. But nevertheless, he has shown that he had the job
accident, and he’s had a neck injury, and the medical records show that
it appears to be a pretty significant job injury at this time. . . .
I find the termination of benefits to be arbitrary and capricious, given the
fact that there was never any indication or showing in any record that
there is ever a previous permanent partial disability, nor that his previous
problem had any relationship to his current medical problem. . . .2

In general, an appellate court reviews the factual determinations of a workers’

compensation judge pursuant to the manifest error—clearly wrong standard. Apeck

Constr., Inc. v. Bowers, 03-486 (La.App. 3 Cir. 12/10/03), 862 So.2d 1087, writ

denied, 04-459 (La. 4/23/04), ___ So.2d ___. This is likewise the standard of review

where an employer has alleged that a claimant has committed fraud pursuant to

La.R.S. 23:1208.1. See Colonial Nursing Home v. Bradford, 02-588 (La.App. 3 Cir.

12/30/02), 834 So.2d 1262, writ denied, 03-364 (4/21/03), 841 So.2d 802. Where

conflict in testimony arises, a workers’ compensation judge’s reasonable factual

inferences and reasonable assessments of credibility are not to be disturbed on appeal,

despite the beliefs of a reviewing court that its inferences or evaluations are more

reasonable. Williamwest v. Am. Studios/PCA Int’l, Inc., 02-98 (La.App. 5 Cir.

9/30/02), 827 So.2d 526. However, an appellate court may conclude that the workers’

2
The worker’s compensation judge likewise issued a written ruling on November 7, 2003,
in which the following findings were outlined: (1) Mr. Lanclos sustained a work-related accident,
thereby entitling him to temporary total disability benefits; (2) Coastal Food and LRASIF are liable
for back temporary total disability benefits from March 12, 2001 (the date of their termination)
through August 20, 2001, and from March 13, 2002, on; (3) Coastal Food and LRASIF are also
liable for the payment of medical expenses as a result of the accident; (4) Coastal Food and LRASIF
must supply future reasonable and necessary medical treatment, including referral to Dr. Alan
Appley, neurosurgeon; (5) the correct figure for Mr. Lanclos’ average weekly wage is $360,
corresponding with a weekly indemnity rate of $240; (6) Coastal Food and LRASIF shall pay the
claimant’s costs associated with the deposition of Dr. Bertuccini and the court reporter’s fees for the
deposition transcripts of Dr. Franklin and Dr. Heard; (7) Coastal Food and LRASIF are assessed
$8,500 in attorney’s fees; and (8) Coastal Food and LRASIF are to pay all costs and interest.

11

compensation judge’s findings were manifestly erroneous or clearly wrong, even

when ostensibly based upon a credibility determination, “[w]here documents or

objective evidence so contradict the witness’s story, or the story itself is so internally

inconsistent or implausible on its face that a reasonable fact finder would not credit

the witness’s story[.]” Town of Grand Isle v. Eschette, 02-96, p. 8 (La.App. 5 Cir.

5/29/02), 820 So.2d 1122, 1128, writ denied, 02-1810 (La. 10/4/02), 826 So.2d 1131.

(quoting Bruno v. Harbert Int’l, Inc., 593 So.2d 357, 361 (La.1992)).

Of the three factors for recovery under La.R.S. 23:1208.1 discussed in Wise, as

stated above, LRASIF focuses its argument on that regarding prejudice to the

employer. LRASIF’s contention in this respect centers on this second factor and

assumes that “untruthful” statements were made and were accepted to be as such by

the workers’ compensation judge. LRASIF further asserts that the workers’

compensation judge did not squarely address the elements of untruthfulness and

notice. However, our review of the workers’ compensation judge’s oral reasons for

ruling, excerpted above, indicates that the workers’ compensation judge did, in fact,

address the issue of untruthfulness, referencing both the nature and the state of the

prior injury and the degree of the claimant’s understanding. We note that the supreme

court has held, with respect to allegations of fraud under La.R.S. 23:1208.1, that “[a]n

employer has the burden of proving each element within the statute. The lack of any

one of the elements is fatal to an employer’s avoidance of liability.” Wise, 707 So.2d

at 1218. Accordingly, if the workers’ compensation judge’s findings regarding the

claimant’s truthfulness in this matter are supported by the record, LRASIF’s argument

regarding prejudice to the employer, even if meritorious, must fail.

In our review of the medical records, depositions, and other evidence presented

in this matter, we have found nothing that definitively establishes that any treating

12

physician informed the claimant that he had a cervical disc herniation after the 1994

accident. LRASIF cites Dr. Franklin’s deposition in support of its assertion that Mr.

Lanclos was aware of the nature of his injury; however, an examination of this

deposition reveals that Dr. Franklin merely stated that he “more likely than not”

informed Mr. Lanclos that he had sustained a herniation, and he was unable to

independently recall whether he had, in fact, done so. Dr. Bertuccini stated in his

deposition that he was “ninety-nine percent sure” that he never used the term

“ruptured” in discussing Mr. Lanclos’ condition with him. Dr. Bertuccini likewise

found that the small central disc herniation shown in an MRI of January 20, 1995, was

inconsequential and was not related to the claimant’s symptoms. Moreover, LRASIF

concedes that neither Dr. Bertuccini nor Dr. Jack Hurst, the independent examining

neurosurgeon, recommended surgery. In addition, we note that many different MRI’s,

myelographs, and post-myelographic CT scans have been taken of the claimant’s

cervical spine since 1994, and the various radiologists, orthopedists, and physicians

who have interpreted these reports have issued varying impressions, ranging from

spondylosis and bony hypertrophy to moderate or significant disc herniations. In our

view, if the examining physicians are not at a consensus as to the claimant’s condition,

then the claimant himself would not have precise knowledge of his condition, either;

in particular, he would not have the prior knowledge that would facilitate making

untruthful statements in violation of La.R.S. 23:1208.1. Our review of the record

indicates support for the workers’ compensation judge’s statements in his oral reasons

for ruling regarding the lack of a clear diagnosis provided to the claimant herein.3 We

3
As reproduced earlier in this opinion, the workers’ compensation judge made the following
findings regarding Mr. Lanclos’ truthfulness as to the nature of his prior injury:
Dr. Bertuccini’s testimony in his deposition was that when he discussed what
he found on the MRIs with Mr. Lanclos, he’s 99 percent sure he never used the term
“ruptured[]” . . . . I’m certainly positive Mr. Lanclos has not a clue what the

13

note that pursuant to Wise, above, if a claimant has no knowledge of a preexisting

partial permanent disability, there can be no fraud. As we conclude that the workers’

compensation judge’s finding as to the first element of the test for fraud outlined in

Wise is supported by the record, this pretermits discussion of LRASIF’s assertions

regarding prejudice.

Penalties and Attorney’s Fees

In its final assignment of error on appeal, LRASIF contends that the workers’

compensation judge incorrectly determined that an award of attorney’s fees and

penalties was warranted due to arbitrary and capricious conduct in this matter. It

argues, citing Sharbono v. Steve Lang & Son Loggers, 97-110 (La. 7/1/97), 696 So.2d

1382, that neither an employer’s subjective motivation to avoid paying compensation

nor the employer’s defeat at hearing is an absolute indicator of arbitrary and

capricious conduct on the employer’s part. LRASIF claims that the present case

involves closely disputed factual questions, and it insists that it conducted an adequate

investigation before denying Mr. Lanclos’ benefits. LRASIF further argues that this

matter involved tremendous credibility issues and medical evidence, which it claims

establishes a reasonable basis for termination of benefits.

In his deposition, Mr. Thomas, the LRASIF adjuster in charge of Mr. Lanclos’

claim, explained that he learned that Mr. Lanclos was under the medical care of Dr.

Lorio and that Dr. Lorio felt that he was unable to work; accordingly, he arranged a

second medical opinion with Dr. Greg Gidman. Mr. Thomas further stated that Mr.

Lanclos’ claim was denied because he did not tell the truth about his medical history,

commenting that the issue was not whether, in fact, he had sustained an injury.

difference is between a ruptured disc, a herniated disc, a bulging disc.

14

Based upon our examination of the record, we do not find that the workers’

compensation judge erred in assessing attorney’s fees and penalties against Coastal

Food and LRASIF for their arbitrary and capricious conduct in handling Mr. Lanclos’

claim. Neither the MRIs or CT scans referenced in the record nor the various

diagnoses of Mr. Lanclos’ condition establish with any certainty that he had a prior

cervical disc herniation. The record further indicates that, besides asking Dr. Gidman

for a second medical opinion, Mr. Thomas undertook no further inquiry as to Mr.

Lanclos’ condition and decided to terminate Mr. Lanclos’ benefits, despite differing

opinions as to the nature of Mr. Lanclos’ prior injury among his examining

physicians, and despite a report from Dr. Gidman that Mr. Lanclos had not sustained

a cervical herniation.

According to the record, Dr. Gidman diagnosed Mr. Lanclos with a contusion

of the thoracic spine, noting that although Mr. Lanclos complained of “cervical” pain,

he was pointing to the upper thoracic region in showing Dr. Gidman where it hurt. Dr.

Gidman noted that upper-thoracic pain is not the same thing as neck pain and

explained that physicians often have to get patients to physically point to the location

of the symptoms instead of merely stating where they are, as what patients say is not

always where it actually hurts. Dr. Gidman noted that in examining the CT scan

performed at Opelousas General Hospital, he found no evidence of a herniation. Dr.

Gidman stated that in his opinion, the 2001 injury probably aggravated an arthritic

condition in Mr. Lanclos’ neck and that this, and not a herniated disc, was the source

of his problem. Dr. Gidman also examined the results of a May 20, 2003 myelogram

and CT scan administered at Dr. Heard’s office, in which he detected no evidence of

herniation or disc protrusion; instead, he described moderate stenosis from

spondylosis. The record indicates that Dr. Heard also reached these conclusions. In

15

addition, Dr. Gidman examined the MRI of Mr. Lanclos’ cervical spine dated January

20, 1995, and concluded that the condition displayed therein was merely bony

hypertrophy. However, with respect to this same MRI, Dr. Bertuccini opined that it

indicated a very small central focal disc protrusion, although it “is likely

inconsequential;” Dr. Bertuccini further concluded that the post-myelograph CT scan

showed only mild spondylosis. The evidence entered into the record contains

correspondence between Dr. Franklin and Dr. Bertuccini in which Dr. Franklin

indicates that an MRI of March 13, 1995, indicates a small cervical disc herniation.

However, Dr. Bertuccini’s records contain a post-myelograph CT scan of Mr.

Lanclos’ cervical spine dated March 14, 1996, in which the radiologist described only

mild spondylosis. Furthermore, although Dr. Lorio’s report of March 19, 2001,

indicated a diagnosis of cervical strain “with known history of preexisting cervical

disc herniation at C5/C6,” he does not specify the records upon which he bases the

“known history.” Based upon comparison of the various medical records submitted

below, it is clear that there is no consensus as to the nature of the claimant’s prior or

present injury; moreover, in the absence of proof that the claimant was informed that

he had a ruptured disc, the evidence is insufficient to establish that the claimant had

a preexisting injury/disability that he failed to mention in completing his medical

questionnaires. The record supports the conclusion that LRASIF acted arbitrarily and

capriciously in terminating Mr. Lanclos’ workers’ compensation benefits. This

assignment lacks merit.

Mr. Lanclos’ Answer to the Appeal

We now turn to Mr. Lanclos’ answer to the appeal and the assignments of error

raised therein. The basis for the claimant’s arguments on appeal is the statutory

authorization of attorney’s fees and penalties outlined in La.R.S. 23:1201(F). In

16

Burge v. Louisiana Insurance Guarantee Association, 02-33 (La.App. 3 Cir. 5/15/02),

819 So.2d 1098, writ denied, 02-2209 (La. 11/15/02), 829 So.2d 427, an en banc

decision of this court, we acknowledged that the law in effect at the time of a

claimant’s injury governs workers’ compensation claims arising from that particular

injury. Regarding the instant matter, we note that the present version of La.R.S.

23:1201(F) is the result of amendment by 2003 Acts 1204, approved July 3, 2003, and

effective August 15, 2003. Before these changes were enacted, and at the time of Mr.

Lanclos’ accident in 2001, La.R.S. 23:1201(F) read, in relevant part, as follows:

Failure to provide payment in accordance with this Section shall
result in the assessment of a penalty in an amount equal to twelve percent
of any unpaid compensation or medical benefits, or fifty dollars per
calendar day, whichever is greater, for each day in which any and all
compensation or medical benefits remain unpaid, together with
reasonable attorney fees for each disputed claim; however, the fifty
dollars per calendar day penalty shall not exceed a maximum of two
thousand dollars in the aggregate for any claim. Penalties shall be
assessed in the following manner:
(1) Such penalty and attorney fees shall be assessed against either
the employer or the insurer, depending upon fault. No workers’
compensation insurance policy shall provide that these sums shall be
paid by the insurer if the workers’ compensation judge determines that
the penalty and attorney fees are to be paid by the employer rather than
the insurer.
(2) This Subsection shall not apply if the claim is reasonably
controverted or if such nonpayment results from conditions over which
the employer or insurer had no control.
....
(4) In the event that the health care provider prevails on a claim
for payment of his fee, penalties as provided in this Section and
reasonable attorney fees based upon actual hours worked may be
awarded and paid directly to the health care provider. This Subsection
shall not be construed to provide for recovery of more than one penalty
or attorney fee.
(5) No amount paid as a penalty or attorney fee under this
Subsection shall be included in any formula utilized to establish
premium rates for workers’ compensation insurance.

Accordingly, the pre-revision form of La.R.S. 23:1201 governs in the instant matter.

17

In Mr. Lanclos’ first argument on appeal, he claims that the workers’

compensation judge erred in failing to award penalties and attorney’s fees for the

employer’s improper calculation of his average weekly wage. With regard to the issue

of penalties in the event of an underpayment of benefits, the Louisiana Supreme Court

noted in Brown v. Texas-LA Cartage, Inc., 98-1063, p. 8 (La. 12/1/98), 721 So.2d 885,

890 that: “The unambiguous language of La.R.S. 23:1201 clearly establishes that

penalties and attorney fees for failure to timely pay benefits shall be assessed unless

the claim is reasonably controverted or such nonpayment results from conditions over

which the employer or insurer had no control.” (Footnote omitted.) Furthermore, in

this case, the fact that the initial compensation benefits provided by the employer were

improperly calculated was stipulated to by the parties. As the employer failed to offer

evidence regarding the miscalculation arising from condition outside of its control and

the matter does not appear to be reasonably controverted, we conclude that the

workers’ compensation judge erred in failing to award penalties for the indequate

benefit payments. Accordingly, we award $2,000 in penalties due to this

underpayment.

With regard to the award for attorney’s fees related to the miscalculation, we

note that the ruling issued by the workers’ compensation judge contains an award of

attorney’s fees of $8,500 in the claimant’s favor for the successful prosecution of his

disputed claim, and we find that this amount includes fees for the improper calculation

of Mr. Lanclos’ average weekly wage. Accordingly, insofar as additional attorney’s

fees are requested, this assignment lacks merit.

We next address the claimant’s contention that the workers’ compensation

judge erred in failing to assess a penalty with respect to the improper termination of

his wage benefits. At the hearing below, the claimant was awarded back and

18

continuing temporary total disability benefits. Temporary total disability benefits are

described in La.R.S. 23:1221(1)(a) as follows:

For any injury producing temporary total disability of an employee
to engage in any self-employment or occupation for wages, whether or
not the same or a similar occupation as that in which the employee was
customarily engaged when injured, and whether or not an occupation for
which the employee at the time of injury was particularly fitted by reason
of education, training, or experience, sixty-six and two-thirds percent of
wages during the period of such disability.

Moreover, La.R.S. 23:1201(B) contains the following timeline for payment of

temporary total disability benefits: “The first installment of compensation payable for

temporary total disability, permanent total disability, or death shall become due on the

fourteenth day after the employer or insurer has knowledge of the injury or death, on

which date all such compensation then due shall be paid.” The workers’

compensation judge determined that Mr. Lanclos was entitled to temporary total

disability benefits; pursuant to La.R.S. 23:1201(F), Coastal Food’s and LRASIF’s

failure to pay these benefits results in the imposition of a penalty. Accordingly, we

find that with respect to this portion of the disputed claim, a penalty is warranted in

the amount of $2,000.

In his third and fourth assignments of error on appeal, Mr. Lanclos argues that

a penalty should have been imposed for the employer’s failure to approve medical

treatment with Drs. Michael Heard and Alan Appley. As noted above, La.R.S.

23:1201(F) provides that penalties and attorney’s fees may be imposed when an

employer or its insurer fails to comply with the payment schedules outlined in the

various subsections of La.R.S. 23:1201. With respect to payment of medical benefits,

which includes authorization of physicians,4 La.R.S. 23:1201(E) states that “[m]edical

4
See Authement v. Shappert Engineering, 02-1631, p. 8 (La. 2/25/03), 840 So.2d 1181, 1186-
87, in which the Louisiana Supreme Court stated as follows:
One purpose of the workers’ compensation statute is to promptly provide

19

benefits payable under this Chapter shall be paid within sixty days after the employer

or insurer receives written notice thereof.” The record reflects that LRASIF did not

authorize the claimant’s treatment with Drs. Heard and Appley within sixty days of

its receipt of the claimant’s written request. Accordingly, we find that penalties are

in order in the amount of $2,000 for the failure to approve treatment with Dr. Appley

and in the amount of $2,000 for the failure to approve treatment with Dr. Heard.

In his final two assignments of error on appeal, Mr. Lanclos points out that the

workers’ compensation judge neglected to impose a penalty for the employer’s failure

to pay assorted medical and pharmacy bills. As noted above, La.R.S. 23:1201(E)

requires payment of medical expenses within sixty days of receipt of a written request,

and, pursuant to La.R.S. 23:1201(F), penalties and attorney’s fees may be imposed

when an employer or its insurer fails to pay such expenses. Although Mr. Lanclos has

requested an assessment of penalties for the employer’s failure to timely pay medical

expenses and a separate assessment for failure to timely pay prescription-drug

expenses, our review of the relevant jurisprudence reveals no support for the award

of separate penalties as requested in the instant appeal. Nevertheless, we find that the

workers’ compensation judge erred in failing to award a penalty for the employer’s

failure to pay the medical/pharmacy bills submitted within the parameters outlined by

law, and, accordingly, we order a penalty in the amount of $2,000.

compensation and medical benefits to an employee who suffers injury within the
course and scope of employment. The employer is obligated to “furnish all
necessary drugs, supplies, hospital care and services, medical and surgical treatment,
and any nonmedical treatment recognized by the laws of this state as legal.”
LSA-R.S. 23:1203(A). Thus, we conclude that a failure to authorize treatment can
result in the imposition of penalties and attorney fees except when the claim is
reasonably controverted. Depending on the circumstances, a failure to authorize
treatment is effectively a failure to furnish treatment.

20

Finally, in his answer to the appeal, Mr. Lanclos requested additional attorney’s

fees for work done in defense of the workers’ compensation judge’s ruling in this

matter. Through our review of the ruling below, we have affirmed the workers’

compensation judge’s decision in the claimant’s favor. Accordingly, we award Mr.

Lanclos an additional $5,000 in attorney’s fees for work done on appeal. See

Bellanger v. LaSalle Community Action, 02-299 (La.App. 3 Cir. 10/2/02), 827 So.2d

599.

DECREE

For the foregoing reasons, the ruling of the workers’ compensation judge is

affirmed insofar as it determined that Mr. Lanclos’ benefits were arbitrarily and

capriciously denied, ordered that said benefits be paid, and ordered that attorney’s fees

be assessed against Coastal Food and LRASIF. In addition, the judgment is amended

to provide for penalties of $10,000 against Coastal Food and LRASIF for the

aforementioned violations of La.R.S. 23:1201(F) and to provide for an award of

additional $5,000 in attorney’s fees to Mr. Lanclos for work done on appeal. All costs

of this proceeding are assigned to the Louisiana Restaurant Association Self Insurers

Fund.

AFFIRMED AS AMENDED.

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