Cajun Rental & Services v. Edwin Sonny" Hebert "

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-482

CAJUN RENTAL & SERVICES

VERSUS

EDWIN "SONNY" HEBERT

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APPEAL FROM THE
OFFICE OF WORKERS' COMPENSATION - DISTRICT # 4
PARISH OF VERMILION, NO. 04-00612 C/W 04-01217
SHARON MORROW, WORKERS COMPENSATION JUDGE

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MARC T. AMY
JUDGE

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Court composed of Jimmie C. Peters, Marc T. Amy, and Elizabeth A. Pickett, Judges.

AFFIRMED.

Mark L. Riley
Onebane Law Firm
Post Office Box 3507
Lafayette, LA 70502-3507
(337) 237-2660
COUNSEL FOR PLAINTIFF/APPELLEE:
Cajun Rental & Services

Jason M. Welborn
Post Office Box 2053
Lafayette, LA 70502-2053
(337) 233-3185
COUNSEL FOR DEFENDANT/APPELLANT:
Edwin "Sonny" Hebert

AMY, Judge.

In this workers’ compensation matter, the insurance company contends that the

claimant employee has violated La.R.S. 23:1208 thereby forfeiting his rights to

further workers’ compensation benefits. The workers’ compensation judge found that

the claimant intentionally misrepresented his abilities for the purpose of bolstering

his entitlement to workers’ compensation benefits. The claimant appeals, arguing that

the workers’ compensation judge committed manifest error in terminating benefits

after finding that a violation of La.R.S. 23:1208 had occurred. For the following

reasons, we affirm.

Factual and Procedural Background

The record indicates that Edwin “Sonny” Hebert and his wife owned and

operated Cajun Rental & Services, Inc (hereinafter “Cajun Rental”). According to

Mrs. Hebert, Cajun Rental had mowing contracts with the State of Louisiana and the

City of Lafayette. Mr. Hebert was the corporation’s operations manager. Mr. Hebert

testified that his duties included operating equipment during the day and repairing

any equipment that was broken.

The underlying accident in this workers’ compensation matter occurred on

July 12, 2001,when Mr. Hebert and his crew were preparing to leave a job site. Mr.

Hebert was attempting to load a four wheeler onto the back of a pickup truck when

it flipped over and rolled over him. The record shows that Mr. Hebert sustained

serious injuries to both shoulders, his left knee, and several nerve bundles. The

occurrence of the work-related accident is not at issue.

Since the accident, Mr. Hebert has been under the primary care of his

orthopedic surgeon, Dr. Roland Miller, and has been referred to different physicians

for evaluation and treatment of his injuries. Medical records establish that Mr. Hebert

had surgery on his right shoulder to repair a tear of the right rotator cuff. The surgery

adequately repaired the tear. However, according to Dr. Miller, complications from

the surgery left Mr. Hebert with a detached deltoid muscle in his right shoulder.

Surgery was also performed on Mr. Hebert’s left knee which, according to Dr. Miller,

was successful in repairing his medial meniscus and condylar damage.

Dr. Miller requested that Mr. Hebert be evaluated by the Center for Work

Rehabilitation, Inc. at the Fontana Center for the performance of a functional capacity

evaluation (“FCE”). Mr. Hebert completed a FCE on February 3, 2003 and February

4, 2003. Scott Guidry, the occupational therapist performing the FCE, concluded that

Mr. Hebert could not return to his previous work level, but he could safely work at

a light-medium work level. Mr. Guidry made a number of findings as to Mr. Hebert’s

abilities that were questioned by Dr. Miller.

Mr. Hebert did not agree with the FCE report and, in a February 10, 2003 letter,

pointed out to his medical case worker what he believed were discrepancies in his

evaluation. Mr. Hebert was particularly concerned with the FCE report’s findings as

to the physical activities he could perform. In addition, Mr. Hebert complained of

certain conditions under which he alleges the FCE was performed. Further, he

insisted that he signed the FCE report under duress. Mr. Guidry and Paul Fontana,

the owner of the Fontana Center, testified at the hearing and denied many of Mr.

Hebert’s allegations.

Subsequently, Highlands Insurance Company, the workers’ compensation

insurer for Cajun Rental, hired a private investigator, to conduct surveillance of Mr.

Hebert. Videotape segments of a number of surveillance periods were entered into

evidence. Highlands contends, in its brief to this court, that the videotapes reveal Mr.

Hebert “engaging in other activities that he contended he could not do. (Driving far
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distances, operating an ATV, and using his arms and legs in various ways.)” One of

the surveillance tapes dated October 16, 2003 relates to Mr. Hebert’s presence at a

church where Highlands contends he was hired to provide “equipment and

services[.]”

As a result, Highlands terminated Mr. Hebert’s benefits and filed a disputed

claim form contending that Mr. Hebert violated La.R.S. 23:1208 and as such forfeited

his rights to further benefits. Specifically, Highlands asserted that Mr. Hebert

misrepresented to both Highlands and his physicians his activity level and residual

abilities, misrepresented activities and abilities related to his FCE, and denied

engaging in work for which he has been recompensed. Mr. Hebert also filed a form

claiming that Highlands unreasonably terminated his benefits.

After a hearing, the workers’ compensation judge found that Mr. Hebert had

intentionally misrepresented his abilities for the purpose of bolstering his entitlement

to workers’ compensation benefits. Therefore, benefits were forfeited pursuant to

La.R.S. 23:1208.

In the instant appeal, Mr. Hebert has designated the following assignments of

error:

I. The trial Court committed manifest error and abused its discretion
in terminating claimant/appellant’s workers’ compensation
benefits.

II. The trial Court committed manifest error in finding Mr. Hebert
had violated Louisiana Revised Statute 23:1208, despite
uncontroverted medical evidence establishing the extent and
nature of his disability.

III. The trial Court committed manifest error in finding that
defendant, Highland, established a “willful misrepresentation” for
the purpose of obtaining benefits, as required by La.R.S. 23:1208.

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Discussion

Violation of La.R.S. 23:1208

Mr. Hebert argues that the trial court was manifestly erroneous in concluding

that Highlands demonstrated that the requirements of La.R.S. 23:1208 were satisfied

by any of his statements or representations. In part, Mr. Hebert focuses upon medical

evidence suggesting the severity of his injuries. He contends that the weight of this

evidence indicates that findings as to his ability to work in the FCE were incorrect.

Furthermore, he questions the workers’ compensation judge’s observation that,

although he reported to his physician that he was able only to sit for a limited period

of time, that he appeared to sit throughout the hearing without difficulty. He notes

that the report to his physician was made over two years before the hearing. Finally,

he contends that surveillance videotape of him engaging in alleged work does not

reveal either that he was working at the time of the filming or that he was engaging

in any activities that he asserted that he could not perform. He argues that any such

activities caused substantial pain or were not sustainable. In short, Mr. Hebert

contends that the evidence lacks sufficient weight to indicate that he made willful

misrepresentations in any regard in order to affect his eligibility for workers’

compensation benefits.

Louisiana Revised Statutes 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.

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Forfeiture of workers’ compensation benefits is proper when: “(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.” Resweber v. Haroil

Const. Co., 94-2708, 94-3138, p.7 (La. 9/5/95), 660 So.2d 7, 12. A workers’

compensation judge’s determination as to whether the elements of La.R.S. 23:1208

are satisfied will not be reversed on appeal absent manifest error. Labor Finders v.

Batiste, 04-1586, (La.App. 3 Cir. 4/6/05), 899 So.2d 190, writ denied, 05-1149 (La.

6/24/05), 904 So.2d 743.

Following the attorneys’ closing arguments, the workers’ compensation judge

noted that she agreed with some of the argument advanced by Mr. Hebert’s attorney.

However, in ultimately finding that La.R.S. 23:1208 was satisfied, the workers’

compensation judge stated as follows:

But the one, the biggest point and, to some extent it is largely a
determining factor, is that Mr. Hebert told Dr. Miller he could not sit for
more than three minutes at a time. He disagreed – that’s one of the items
in the FCE that he disagreed with, that he could sit for forty-five minutes
at a time. Mr. Hebert has sat with me today at least two hours in the
morning and close to two hours this afternoon without moving around,
getting up, standing, stretching, any movement any different than any
other one of us in this room. We have all sat here for four hours, and
there has been some shifting, but Mr. Hebert has moved no more than
any of us.

This morning – and we have not taken a break. And let me say,
I needed a break this morning, but I was very curious to see if we would
make it the whole time. Mr. Hebert did get up, took a brief recess on his
own, two to five minutes, when he got up and left. And when he walked
back in he did not appear stiff. He did not move with any pain. His
movement today it appears as unrestricted as it does in the videotape.

The videotape is not – I mean, it doesn’t show him doing
cartwheels. But I’ve said before, a videotape of someone walking is not
really significant unless the person tells you they can’t walk. The degree
of significance of tape depends on the degree of restrictions given by the
person.

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You are correct, he is the only one who can tell us if he is in pain.
But that’s where the problem is. I think Mr. Hebert has exaggerated his
complaints to such an extent that I am compelled to find that it is an
intentional misrepresentation for the purpose of bolstering his
entitlement to benefits.

As to motivation, I can’t answer that. I don’t need to. I simply
need to find was it a misrepresentation. Yes. I think Mr. Hebert has
misrepresented his abilities. Was it intentional? Yes. I do not believe
it was inadvertent. I don’t think there was any memory loss, memory
problem or any other type of inadvertent statements.

Was it for the purpose of obtaining workers’ compensation
benefits? I have to assume so since it directly impacted his disability
ratings, impairment ratings. You know it could have also been to obtain
Social Security benefits. But I cannot think of any other reason other
than to obtain benefits.

I wish I had the discretion to award some lesser sanction because
quite clearly there was an injury. There are some continued problems.
But I do not have that discretion having found that the Resweber
requirements are met and that 1208 has been violated. I need to enter a
judgment that Mr. Hebert has forfeited his entitlement to benefits.

And I know I focused primarily on the sitting here today because
that is something I observed with my own eyes, but it is indicative of the
full reasons that I – that I find 1208 has been violated. Because there
has been a lot of back and forth about, for example, the FCE. Mr.
Hebert didn’t need to “gild the lily” to use Mr. Riley’s phrase. He
clearly was entitled to medical benefits. That wouldn’t have been
affected. Indemnity was more questionable. There has been a direct
impact on the indemnity question because of the exaggerations and
misrepresentations. It appears as though the company made Thirteen
Thousand Dollars in a six-month period without even trying on a
volunteer basis. Certainly, if some effort were given, I think indemnity
could have been impacted.

But, in any event, I do find that 1208 has been violated. And,
again, I take no pleasure whatsoever in reaching that finding.

As recognized in the above reasons for ruling, it is unquestioned that Mr.

Hebert sustained injury and that he continues to suffer from related problems.

However, the workers’ compensation judge concluded that Mr. Hebert’s continued

injuries are not as severe or as debilitating as he has expressed. While the degree of

injury and related disability are related to the workers’ compensation judge’s
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determination in this case, the presence of injury or disability, alone, is not

determinative in a La.R.S. 23:1208 analysis. Rather, as noted in Resweber, 660 So.2d

7, the focus of the inquiry is whether there was a willful, false statement or

representation made to obtain or defeat workers’ compensation benefits. Our review

of the record reveals support for the workers’ compensation judge’s determination

that these factors were satisfied.

We first note that Mr. Hebert contests the workers’ compensation judge’s

observation that he reported to his treating physician that he could only sit for a short

period without discomfort whereas he was able to sit for the length of the hearing

without apparent discomfort. Mr. Hebert asserts that the workers’ compensation

judge’s focus in this regard was misplaced as the statement was made more than two

years prior to the hearing. Although the workers’ compensation judge referenced the

statement made to Dr. Miller, one that Dr. Miller again addressed in his deposition

taken before the trial on the matter, the FCE report also contains information that Mr.

Hebert could sit for forty-five minutes. The workers’ compensation judge’s

observation that Mr. Hebert appeared to sit throughout the hearing without apparent

discomfort was not in error insofar as it factored into a determination of Mr. Hebert’s

credibility. As noted by the workers’ compensation judge, Mr. Hebert denied that he

could sit for forty-five minutes in a letter dated February 10, 2003 wherein he

questioned the FCE report.1 This type of conflict between the conclusions drawn by

1
The letter includes doubts as to a number of the findings and statements
included in the FCE. With regard to the issue particularly referenced by the trial
court, the issue of the ability to sit, Mr. Hebert wrote as follows:

The O.T. verbally attacked me about my disagreement with him on
this one. He stated he knew I could sit for 45 minutes without
interruption, because that is how long it took to fill out the paperwork
while we were seated at his desk the first day of the evaluation. The
O.T. is a very busy person. He either forgot he was called away from
his desk three times, several minutes each time, while we were filling
out the paperwork or he is intentionally misstating facts. However,
each time he left, I took the opportunity to stand, stretch, and walk
around until he would get back.

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the therapists completing the FCE report, along with their testimony at trial, and the

statements made in Mr. Hebert’s letter wherein he questioned a number of their

findings called for certain credibility determinations. The workers’ compensation

judge was entitled to consider observations at trial in these determinations.

Reasonable credibility determinations are not to be disturbed on review where

conflict exists in the testimony. Smith v. Louisiana Dept. of Corrections, 93-1305

(La. 2/28/94), 633 So.2d 129.

Furthermore, as explained above, Highlands presented surveillance videotape

that it asserts indicate Mr. Hebert’s performance of work-related activities in October

2003 at a church. While the workers’ compensation judge’s reasons do not

demonstrate that great weight was placed on the tapes, the record supports the

workers’ compensation judge’s determination on the issue of whether Mr. Hebert

actually performed work, obtained compensation for that work, and possibly made

false statements regarding such work. When questioned in his March 2004

deposition, Mr. Hebert denied having “gone out on any jobs or tried to do any work

in reference to Cajun Rentals within the last 12 months[.]” He also responded

negatively when asked: “Other than your attempts to keep Cajun Rentals open, which

you did more than a year ago, have you done any employment at all for wages since

your accident?” When subsequently asked whether he had heard of the church where

he was seen on the October 2003 videotapes, he responded that he knew “some of the

parishioners there.” Upon questioning, as to whether he had ever provided “labor

services, work of any kind” to the church, he explained that he thought he “did some

volunteer work for them there.” Mr. Hebert explained that he “oversaw some guys

working there.” Mr. Hebert named Richard Comeaux as the person with whom he

was dealing at the church.

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Mr. Comeaux’s deposition was also entered into evidence. He explained that

in 2003 he contacted Mr. Hebert to provide tools and supervision for cleaning the

ditches at the church. He explained that he paid Mr. Hebert for the services. He

further stated that he also hired Mr. Hebert to provide supervision for labor at a

location on Toledo Bend. He confirmed that this latter job was within the previous

year. Mr. Comeaux explained that he was interested in both supervision and

equipment rental when he contacted Mr. Hebert. Jacqueline Hebert, Mr. Hebert’s

wife, testified in her deposition that she and her husband own Cajun Rental in its

entirety. She explained that her understanding of the relationship with Mr. Comeaux

was that he was strictly hiring Cajun Rental’s equipment and that none of this money

was paid to Mr. Hebert in wages. She stated that he received no personal income

from the rental and that the funds were used for the inactive business’s outstanding

loans.

Although the workers’ compensation judge could have accepted Mr. Hebert’s

version of events that only Cajun Rental’s equipment was rented and that he did not

perform any duties or receive any wages from the work at the church, the workers’

compensation judge was not required to accept this version of events. Rather, the

workers’ compensation judge was presented with evidence from Mr. Comeaux who

explained that he contracted for both equipment rental and supervision on the project

that was allegedly captured on videotape. He additionally stated that he did the same

on the Toledo Bend project. The payments made were received by Cajun Rentals, a

business wholly owned by Mr. Hebert and his wife.

Given the evidence of the occupational therapist’s findings in the FCE, the

defendant’s denial of many of those findings in a response letter he authored, and

evidence permitting a view that Mr. Hebert had worked in some capacity despite his

clear denial, we conclude that the workers’ compensation judge’s determination that

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misrepresentations or false statements were made is supported by the record. Further,

the record supports a determination that the second and third elements of La.R.S.

23:1208 were also satisfied, namely whether these statements were willfully made

and whether they made for the purpose of obtaining benefits. With regard to whether

any false statement was willful, the workers’ compensation judge was free to weigh

the letter contesting the FCE statements and Mr. Hebert’s statement he had performed

no work for wages and conclude that these statements were both willful and that they

were made for the purpose of affecting workers’ compensation benefits. As noted in

the reasons for ruling, the degree of Mr. Hebert’s impairment or disability ratings

could have been impacted by such information.

For these reasons, we find that Mr. Hebert’s arguments on appeal lack merit.

DECREE

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

affirmed. All costs of this proceeding are assigned to the appellant, Edwin “Sonny”

Hebert.

AFFIRMED.

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