Michael Chaisson v. Philip Services Corporation

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-340

MICHAEL CHAISSON

VERSUS

PHILIP SERVICES CORPORATION

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 03
PARISH OF CALCASIEU, NO. 02-08688
HONORABLE SAM LOWERY, PRESIDING

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SYLVIA R. COOKS
JUDGE
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Court composed of Sylvia R. Cooks, Oswald A. Decuir and Marc T. Amy, Judges.

Amy, J., concurs in part, dissents in part and would reverse the award of penalties and
attorney’s fees.

AFFIRMED, AS AMENDED.

Mark Zimmerman
4216 Lake Street
Lake Charles, LA 70605
(337) 474-1644
COUNSEL FOR PLAINTIFF/APPELLEE:
Michael Chaisson

Bret C. Beyer, Sr.
Hill & Beyer
P.O. Box 53006
Lafayette, LA 70505-3006
(337) 232-9733
COUNSEL FOR DEFENDANT/APPELLANT:
Philip Services Corp.

COOKS, Judge.

The employer appeals the judgment of the Office of Workers’ Compensation

finding the claimant suffered a work-related accident and was injured as a result.

Claimant was awarded the appropriate workers’ compensation and medical benefits

due, as well as penalties and attorney fees. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The claimant, Michael Chaisson, alleged he injured himself on February 26,

2002, while engaged in the course and scope of his employment with Philip Services

Corporation (hereafter PSC). Claimant stated he injured himself on that date while

pulling heavy metal heater doors. According to claimant, he reported his injury on

that date to Harold Nassar, who he believed was his supervisor and would note the

accident in a company logbook. It was agreed by both parties that standard practice

at PSC was to record incidents in a logbook to protect the record without the need of

reporting a new work injury to its insurer because most injuries were minor. If the

injury turned out to be serious, then a formal claim would be filed and the notes in the

logbook would serve as proof of the accident. Claimant stated he repeatedly

reminded Nassar about his accident. Nassar eventually denied he was asked by

claimant to document any accident that occurred at work. There was testimony from

Debra Chaisson (claimant’s wife) and Janet Wing (claimant’s sister-in-law) that they

overheard a conversation between Nassar and claimant discussing an incident report

that was made when claimant was hurt at work.

Claimant testified he continued working after the accident, despite being in

pain, with the expectations that his back would improve. However, the pain became

worse and began radiating into his legs. Eventually, at his wife’s insistence, he saw

his family doctor, Dr. Jason Ramm, on April 26, 2002. He stopped working two days

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later. After examining claimant, Dr. Ramm referred him to an orthopedic surgeon,

Dr. John Noble, who diagnosed him with lumbar spondylolisthesis. Dr. Noble

believed claimant required a back fusion. Claimant did not inform Dr. Ramm and Dr.

Noble about any work incident that caused his back problems. Claimant explained

he did not do so because he had no plans to file a workers’ compensation claim. He

further stated that in the past his back had given him problems, but it had always

resolved itself in a brief period of time. He also maintained any prior back discomfort

was never serious enough to prevent him from working.

Claimant stated after the visit with Dr. Noble, when he became aware of the

serious nature of his condition, he contacted Rodney LePointe to check on whether

his February 26, 2002 accident was noted in the logbook. Although LePointe found

there was no such accident noted, he admitted that claimant seemed surprised that

Nassar had not entered the incident into the logbook. The employer alleged that

claimant then asked LePointe to falsify the logbook by including the incident.

Claimant denies making such a request. LePointe in his testimony did not state that

claimant asked him to lie, but characterized their conversation as follows:

When he asked me, you know, he just kind of mentioned it and I
said, “I can’t do it.” And he said that – he said, “That don’t matter.” He
said, “Harold’s [Nassar] got it documented.”

A workers’ compensation claim was filed on November 19, 2002. The employer

defended the claim on several grounds, arguing there was no proof that a work

accident occurred, and even if a work accident were found to have occurred, it did not

cause the disability complained of by claimant. The employer also contended

claimant forfeited any right to benefits because of alleged untruthfulness and the

commission of fraud pursuant to La.R.S. 23:1208. The parties agreed no

compensation benefits have been paid and claimant received unemployment benefits

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from April 28, 2002 until January 2003.

After a trial before the Office of Workers’ Compensation, the workers’

compensation judge (WCJ) found a work-related accident did occur when claimant

pulled off the heavy metal heater door, and that the medical evidence showed he was

injured as a result. The WCJ also found the claimant fulfilled his obligation to report

the accident, but “the system either just didn’t work or the individuals who are part

of the system didn’t do what they were supposed to do.” The WCJ found the

employer was unable to establish that claimant was guilty of fraud pursuant to La.R.S.

23:1208.1. Claimant was awarded the appropriate workers’ compensation and

medical benefits due, as well as penalties and attorney fees. This appeal followed,

wherein the employer asserts the following assignments of error:

1. The WCJ erred in determining that claimant suffered a work-related
accident and resulting injury on February 26, 2002.

2. The WCJ erred in denying the forfeiture penalty found in La.R.S.
23:1208.1.

3. The WCJ erred in awarding penalties and attorney fees.

ANALYSIS

A workers’ compensation claimant has the burden of proof to establish that a

work-related accident occurred by a preponderance of the evidence. Bruno v.

Harbert International, Inc., 593 So.2d 357 (La.1992). In determining whether a

worker has shown by a preponderance of the evidence that an injury-causing accident

occurred in the course and scope of employment, the trier of fact is expected to focus

on the issue of credibility because, absent contradictory circumstances and evidence,

a claimant’s testimony is afforded great weight. Id. “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 doubt upon the worker’s

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version of the incident, and (2) the worker’s testimony is corroborated by the

circumstances following the alleged incident.” Id. at 361.

The manifest error standard of review applies to factual findings in a workers’

compensation case. Chaisson v. Cajun Bag & Supply Co., 97-1225 (La. 3/4/98), 708

So.2d 375. In applying the manifest error standard, we must determine, not whether

the trier of fact was right or wrong, but whether the factfinder’s conclusion was a

reasonable one. Id. When there is a conflict in the testimony, reasonable evaluations

of credibility and reasonable inferences of fact should not be disturbed, even though

we may feel that our own evaluations and inferences are as reasonable. Stobart v.

State, Through DOTD, 617 So.2d 880 (La.1993); Lanclos v. Coastal Food, LLC, 04-

222 (La.App. 3 Cir. 7/7/04), 877 So.2d 309. Accordingly, if the factfinder’s findings

are reasonable in light of the record, the appellate court may not reverse or modify the

judgment. Chaisson, 708 So.2d 375.

The employer argues claimant did not prove that he suffered a work-related

accident and corresponding injury. Specifically, it argues claimant did not report the

accident timely and did not immediately inform his treating physicians of any work-

related accident when he initially began treatment for his back pain.

A. Timely Notification of Accident.

Claimant maintained, at all times, he informed Harold Nassar of the accident

on the date it occurred. According to claimant, he was assured by Nassar that he

would note the incident in the company logbook, which was standard procedure.

There was testimony in the record which supported claimant’s version on this point.

Debra Chaisson and Janet Wing both testified they overheard Nassar tell claimant that

the incident had been logged.

Also, claimant’s conversation with Rodney LePointe indicates claimant’s belief

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that Nassar had logged the incident. Although LePointe found no such incident was

noted in the logbook, he stated that claimant seemed surprised that Nassar had not

entered the incident into the log book. According to LePointe, when claimant “kind

of mentioned” including the incident in the logbook and LePointe stated he could not

do it, claimant responded to him “[t]hat don’t matter[,] “Harold’s got it documented.”

Clearly, this testimony supports claimant’s assertion that he informed Nassar of the

accident.

In his oral reasons, the WCJ specifically stated claimant’s testimony

“steadfastly and consistently provided the court with what appeared to be a plausible

explanation of events.” In contrast the WCJ found Mr. LePointe’s testimony to be

“inconsistent, incredible, and at times almost incomprehensible.” Further, the WCJ

stated Mr. Nassar “appears from his deposition to be even less credible than Mr.

LePointe.” The weight and credibility given the witnesses’ testimony by the WCJ is

entitled to great deference by this court, and while the evidence is conflicting, we can

find no manifest error in the decision of the WCJ that a work-related accident did

occur.

B. Injury Arising from Accident.

The medical evidence revealed claimant failed to initially inform Dr. Ramm

and Dr. Noble of a specific work-related accident. Claimant maintained he did not

mention the accident because he believed his back would improve quickly as it

always had in the past. The medical evidence indicates claimant had suffered back

pain in the past, but it was not until after the date of the accident that the medical

records indicate any complaints of radiating pain in claimant’s leg. Claimant

admitted he had seen Dr. Ramm approximately two years before the accident

complaining of back pain, but he had no complaints of leg pain and missed very little

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work as a result. The record also showed in the past claimant never missed more than

a day or two because of his back and has never filed a previous workers’

compensation claim.

The employer also argues claimant suffers from a “lifelong spondylolisthesis

in his lumbar spine, a condition which has slowly degenerated, over time, to the point

where it needs surgery to be repaired.” Claimant does not dispute that this back

condition preexisted the accident. However, as claimant notes, it is well established

that a worker’s preexisting condition does not bar his recovery under the workers’

compensation laws because an employer takes the worker as he finds him. Guillory

v. U.S. Fidelity & Guaranty Ins. Co., 420 So.2d 119 (La.1982); Thompson v.

Coushatta Educ. Dept., 04-07 (La.App. 3 Cir. 6/16/04), 876 So.2d 961. A worker’s

claim for disability benefits will not be disqualified if the work-related injury

aggravates, accelerates, or combines with an infirmity to produce disability for which

compensation is claimed. Cadiere v. West Gibson Products, Co., Inc., 364 So.2d 998

(La.1978); Baker v. Conagra Broiler Co., 93-1230 (La.App. 3 Cir. 5/4/94), 640 So.2d

494, writ denied, 94-1435 (La. 9/23/94), 642 So.2d 1289. “Aggravation of a

preexisting injury may constitute a disabling injury when, for example, the plaintiff

begins to suffer new symptoms after the second workplace accident.” Halker v.

American Sheet Metal, 03-678, p. 4 (La.App. 3 Cir. 12/10/03), 861 So.2d 740, 744,

citing Howell v. Service Merchandise Co., Inc., 95-79 (La.App. 3 Cir. 8/9/95), 663

So.2d 96.

Claimant sought no medical care for his back for approximately two years

before the February 26, 2002 work accident. The employer’s records revealed

claimant missed very little time from work in the two years prior to the accident.

Claimant testified his back pain after February 26, 2002 was substantially worse than

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ever before. He also complained of pain radiating into his leg for the first time

following the work accident. There was also testimony from Dr. Noble that the

highly physical activity claimant was doing at the time of the accident could have

aggravated his preexisting condition. Considering these facts, we cannot say the WCJ

erred in finding claimant established that the February 26, 2002 accident was the most

reasonable explanation for his injury and disability.

C. Forfeiture of Benefits under La.R.S. 23:1208.1.

The employer argues even if it were found an accident and resulting injury

occurred, claimant nevertheless has forfeited benefits under La.R.S. 23:1208.1.

Specifically, the employer contends claimant answered no to a question on his

“Second Injury Fund” questionnaire as to whether he ever received treatment for his

back, neck or knee.

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

So.2d 3, 7-8, 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,

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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).]

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.]

In his oral ruling, the WCJ made the following comments regarding the

employer’s assertion that claimant committed fraud pursuant to La.R.S. 23:1208.1:

It has been my experience that most laborers, when they are asked
if they have a back condition, translate that question into a query as to
whether they suffered from some disease or disorder of such magnitude
that they are substantially restricted from performing work they’re
accustomed to doing. That’s not the case here. There’s absolutely
nothing in the record to suggest that any treating physician informed the
claimant he suffered from this particular malady. And nowhere in R.S.

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1208.1 is his particular problem listed as a disability which permits a
legal presumption of being a pre-existing permanent partial disability.

I grant you he was less than candid when he answered the medical
question posed to him, but untruthfulness and inaccuracy is not the same
thing as fraud because if a claimant has no knowledge of a pre-existing
partial permanent disability, there can be no fraud; and his answers to
the medical questionnaires don’t come close to rising or sinking to the
level of a deliberate lie calculated to receive benefits. The fact that he
saw Dr. Ramm in 2002 and that he went to a chiropractor more than ten
years ago before the accident is pretty thin evidence upon which to build
a fraud case even if he was not forthcoming with that information at his
deposition.

The manifest error-clearly wrong standard applies to the factual determinations of a

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

La.R.S. 23:1208.1. Lanclos v. Coastal Food, LLC, 04-222 (La.App. 3 Cir. 7/7/04),

877 So.2d 309; 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.

We find no error in the WCJ’s conclusion that claimant did not commit fraud.

There is no medical evidence in the record to indicate claimant knew he had lumbar

spondylolisthesis or that his back condition was potentially serious. The record

supports claimant’s testimony that in the past his back would get sore on occasion,

but it would resolve after a short period of rest. We agree with the WCJ that claimant

did not have the prior knowledge that would facilitate making untruthful statements

in violation of La.R.S. 23:1208.1. “[P]ursuant to Wise [v. J.E. Merit Constrs., Inc.,

97-0684 (La.1/21/98), 707 So.2d 1214], . . . if a claimant has no knowledge of a

preexisting partial permanent disability, there can be no fraud. Lanclos, 877 So.2d

at 319.

D. Penalties and Attorney Fees.

Lastly, the employer contends the WCJ erred in awarding penalties and

attorney fees. A workers’ compensation judge has great discretion in deciding

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whether to allow or disallow penalties and attorney fees, and the decision will not be

disturbed absent abuse of that discretion. Frank v. City of Lake Charles, 04-820

(La.App. 3 Cir. 11/10/04), 887 So.2d 679. Upon a thorough analysis, we have not

discovered any abuse of discretion. The employer’s basis for denying the claim was

based on the version of events supplied by its supervisors, Lepointe and Nassar. The

WCJ specifically found those two witnesses were lacking credibility and the

employer’s reliance on them to withhold payment of benefits was unreasonable.

E. Additional Attorney Fees for Appeal.

Claimant answered the appeal and requests an award of additional attorney fees

for work performed on appeal. An award for attorney fees for work done on appeal

is warranted when the appeal has necessitated additional work on the attorney’s part.

Colonial Nursing Home v. Bradford, 02-588 (La.App. 3 Cir. 12/30/02), 834 So.2d

1262, writ denied, 03-364 (La.4/21/03), 841 So.2d 802. Considering claimant’s

attorney had to do additional legal research, prepare a brief and orally argue the case

before this court, we find an additional award of $2,500.00 is reasonable under these

circumstances.

DECREE

For the foregoing reasons, the judgment in favor of claimant, Michael

Chaisson, is amended to award an additional $2,500.00 in attorney fees. In all other

respects, it is affirmed. Costs of this appeal are assessed to the employer, Philip

Services Corporation.

AFFIRMED, AS AMENDED.

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