Charles Humphrey v. Icee Distributors

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

06-549

CHARLES HUMPHREY

VERSUS

ICEE DISTRIBUTORS

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 3
PARISH OF CALCASIEU, DOCKET NO. 04-04612
HONORABLE CHARLOTTE L. BUSHNELL,
WORKERS’ COMPENSATION JUDGE

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SYLVIA R. COOKS
JUDGE
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Court composed of Sylvia R. Cooks, John D. Saunders, and Marc T. Amy, Judges.

AFFIRMED.

Mark Zimmerman
Attorney at Law
4216 Lake Street
Lake Charles, Louisiana 70601
(337) 474-1644
COUNSEL FOR PLAINTIFF/APPELLEE:
Charles Humphrey

H. Douglas Hunter
Guglielmo, Lopez, Tuttle, Hunter & Jarrell
306 East North Street
P.O. Drawer 1329
Opelousas, Louisiana 70571-1329
COUNSEL FOR DEFENDANT/APPELLANT:
Icee Distributors

COOKS, Judge.

STATEMENT OF THE CASE

This is a workers’ compensation case. Icee Distributors appeals the decision

of the Workers’ Compensation Judge (WCJ) finding Icee Distributors improperly

terminated workers’ compensation benefits paid to Charles Humphrey for a work-

related injury. The employer relied upon La.R.S. 23:1208.1 which provides for the

forfeiture of benefits for the failure of an employee to answer truthfully about a prior

injury. Icee Distributors contends Mr. Humphrey did not disclose a prior back

surgery on his application for employment. The WCJ found Icee Distributors failed

to meet its burden of proof under the statute, but did not award penalties or attorney’s

fees. For the reasons assigned below, we affirm the decision of the WCJ.

STATEMENT OF THE FACTS

Charles Humphrey, the claimant, is forty-nine years old and has held steady

employment in various manual labor jobs. He is also a skilled carpenter. In the early

1990's he opened a cabinet shop in Lake Charles and was self-employed until a back

injury required him to have surgery. In July 1998, Dr. Dale Bernauer performed a

posterior lumbar fusion at the L5-S1 level. Dr. Bernauer testified Mr. Humphrey did

well post-operatively and was ready to resume work six months later. In February

1999, Mr. Humphrey was hired by Icee Distributors as a repairman. His duties

included driving a company truck to various sites for the purpose of repairing Icee

machines. He often worked sixty-hours a week and carried a tool bag. Mr.

Humphrey worked for Icee Distributors without incident for nearly five years before

the accident. On September 23, 2003, while engaged in the course and scope of his

employment, Mr. Humphrey was involved in an automobile accident when he ran into

the back of another vehicle. As a result, Mr. Humphrey injured his back at the L4-5

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level. He continued to work until December 19, 2003. Icee Distributors paid

indemnity benefits until June 2004, at which time Icee Distributors terminated both

indemnity and medical benefits based on Mr. Humphrey’s failure to disclose his prior

back surgery. The WCJ found Icee Distributors failed to carry its burden of proof

under La.R.S. 23:1201.1 and La.R.S. 23:1371. The WCJ also found the claim was

reasonably controverted and denied penalties and attorney’s fees. Icee Distributors

filed this appeal. Mr. Humphrey appeals the denial of penalties and attorney’s fees

and requests attorney’s fees for work done on appeal.

LAW AND DISCUSSSION

Icee Distributors contends Mr. Humphrey failed to disclose his prior lumbar

fusion at the L5-S1 level on his employment application and, as a result Icee

Distributors was prejudiced in its ability to seek reimbursement from the second

injury fund. Icee Distributors relies on La.R.S. 23:1208.1, which provides in relevant

part:

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.

The Second Injury Fund provision is found in La.R.S. 23: 1371, which

provides in relevant part:

A. It is the purpose of this Part to encourage the employment of
physically handicapped employees who have a permanent, partial
disability by protecting employers, group self-insurance funds, and
property and casualty insurers from excess liability for workers’
compensation for disability when a subsequent injury to such an
employee merges with his preexisting permanent physical disability to
cause a greater disability than would have resulted from the subsequent
injury alone.

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In Wise v. J.E. Merit Constructors, Inc., 97-684 (La.(1/21/98), 707 So.2d 1214,

the Louisiana Supreme Court articulated the relationship between these two

provisions, as follows:

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.

Id. at 1217.

However, a false statement on an employment application does not

automatically result in the forfeiture of benefits. The employer must establish it was

prejudiced by the misrepresentation. The employer is only prejudiced (1) when the

false statement directly relates to the medical condition for which a claim is made or

(2) affects the employer’s ability to receive reimbursement from the second injury

fund. Id. A “direct relation is established when the subsequent injury was inevitable

or very likely to occur because of the presence of the preexisting condition.” Id. at

1120. The second prong requires the employer to prove the false statement

prejudiced its ability to receive reimbursement from the second injury fund, by

proving the second injury “merged” with the preexisting permanent disability to

produce a “materially and substantially greater” disability. “Merger”, as defined by

La.R.S. 23:1371, is limited to the following:

(1) The subsequent injury would not have occurred but for the
preexisting permanent partial disability; or

(2) The disability resulting from the subsequent injury in conjunction
with the preexisting permanent partial disability is materially and
substantially greater than that which would have resulted had the
preexisting permanent partial disability not be present, and the employer
has been required to pay and has paid compensation for that greater
disability.

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In the present case, it is undisputed that Mr. Humphrey did not disclose his

prior back surgery on his employment application. When questioned regarding his

omission, Mr. Humphrey answered candidly, “I got tired of people telling me they

wouldn’t hire me.” However, the WCJ found the employer failed to prove the second

injury was inevitable or very likely to occur because of the presence of the preexisting

lumbar fusion. Moreover, the WCJ found the medical evidence did not support a

finding that the disability following the second injury was materially or substantially

greater than that which would have resulted had the preexisting condition not been

present.

The Plaintiff presented the medical testimony of Dr. Beunauer. Dr. Beunauer

performed the fusion at the L5-S1 level. He testified Mr. Humphrey was ready to

resume employment six months after the first injury and assessed his disability at 12%

with a 25 pound weight limit in lifting. The evidence established he did resume

employment and was hired by Icee Distributors about six months after the back

surgery. He worked for Icee for nearly five years without incident. His job entailed

long hours of driving, carrying a heavy tool belt, bending, stooping and lifting to

repair Icee machines. When Mr. Humphrey saw Dr. Bernauer shortly following the

accident, Dr. Bernauer found a definite change in Mr. Humphrey’s condition. His

examination revealed a limited range of motion. An MRI done on November 21,

2003, showed diffused disk bulging with neural canal narrowing bilaterally at L4-5.

A diskogram showed an abnormal disk at L4-5, total incompetence of the disk with

abnormal appearance and pain. After the accident, Dr. Beunauer raised his disability

only slightly to 15% with 20 pound weight limit, with the same restrictions as far as

repetitive stooping, bending, squatting, crawling. Dr. Beunauer opined that the prior

fusion at the L5-S1 level did not make an injury at the L4-5 level inevitable or even

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very likely. He testified: “I don’t think it made it worse. The fact that he had a

fusion at L5-S1 didn’t make the L4-5 worse, as far as the injury he had to it.” We

agree with the WCJ that Icee Distributors has failed to prove but for Mr. Humphrey’s

non-disclosure, it would have been entitled to reimbursement from the second injury

fund. Icee Distributors has failed to prove the subsequent injury to the L4-L5 level,

which occurred following an automobile accident, was inevitable or very likely to

occur because of the prior fusion or that the subsequent injury to the L4-5 level was

materially and substantially greater than that which would have resulted had the

fusion at the L5-S1 level not been present.

Mr. Humphrey appeals the decision of the WCJ denying penalties and

attorney’s fees. In order for a claimant to recover penalties and attorney’s fees, there

must be a showing that the employer did not raise a seriously disputed issue.

Hickman v. Jim Smith Logging, et al., 04-157 (La.App. 3 Cir. 9/29/04), 883 So.2d

1072. “To reasonably controvert a workers’ compensation claim so as to avoid

imposition of penalties and attorney fees, the employer and its insurer must provide

sufficient factual and medical information to reasonably counter the evidence

provided by the claimant.” Johnson v. Johnson Controls, Inc., 38,495, pp. 16-17

(La.App. 2 Cir. 5/12/04), 873 So.2d 923, 933-34. In this case, Mr. Humphrey failed

to disclose his prior back surgery on the employment application. Icee Distributors

relied on the testimony of Dr. Beunauer, the treating physician, to support its position.

An award of penalties and attorney’s fees are penal in nature and must be strictly

construed. We find no error on the part of the WCJ denying the imposition of

penalties and attorney’s fees. We also decline to award attorney’s fees for work done

on appeal.

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DECREE

Based on the foregoing review of the evidence, we affirm the decision of the

Workers’ Compensation Judge. All costs of this appeal are assessed to Icee

Distributors.

AFFIRMED.

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