Brian Doyal v. Vernon Parish School Board

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-1088

BRIAN DOYAL

VERSUS

VERNON PARISH SCHOOL BOARD

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - DISTRICT 2
PARISH OF RAPIDES, NO. 04-05616
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

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MARC T. AMY
JUDGE

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Court composed of Marc T. Amy, J. David Painter, and James T. Genovese, Judges.

AFFIRMED.

Maria A. Losavio
Losavio Law Firm, LLC
Post Office Box 12420
Alexandria, LA 71315-2420
(318) 767-9033
COUNSEL FOR PLAINTIFF/APPELLEE:
Brian Doyal

Stacy C. Auzenne
Auzenne Law Firm, LLC
Post Office Drawer 11817
Alexandria, LA 71315-1817
(318) 880-0087
COUNSEL FOR DEFENDANT/APPELLANT:
Vernon Parish School Board

AMY, Judge.

The employee allegedly sustained injuries in an accident related to his

employment as a cafeteria worker. The employer terminated benefits and sought a

determination that the employee forfeited benefits due to what it asserted were

fraudulent statements concerning the claim and failure to timely report wages from

outside employment. The employee sought reinstatement of benefits as well as

penalties and attorney’s fees. The workers’ compensation judge found in favor of the

employee and awarded the relief sought. The employer appeals. The employee

answers the appeal. We affirm.

Factual and Procedural Background

The record establishes that Brian Doyal was employed by the Vernon Parish

School Board as a cafeteria cook at East Leesville Elementary School. Mr. Doyal

asserts that he sustained injury on October 9, 2003 when a sheet pan rack toppled

against him and knocked him to the ground. He contends that a faulty wheel caused

the accident.

Marsha Mayo, the cafeteria’s assistant head cook, explained that she was

nearby and that she responded to Mr. Doyal’s moaning. She testified that she and Mr.

Doyal lifted the sheet pan rack to its upright position. Later that afternoon, she

completed an accident report form for Mr. Doyal.

Mr. Doyal reported to the emergency department of the Byrd Regional Hospital

on the afternoon of the alleged accident. The department’s records indicate that he

complained of pain to the left shoulder, waist, hip, and lumbar spine and reveal a

diagnosis of contusion to the left shoulder. He also complained of soreness over his

rib cage. Mr. Doyal was instructed not to return to work until seeing his primary care

physician. Although Mr. Doyal treated with various physicians, his complaints of

pain continued. Physicians ultimately recommended a diskectomy to alleviate pain

from a herniated lumbar disc and a carpal tunnel release.

Initially, the School Board provided Mr. Doyal with temporary total disability

benefits as well as medical benefits. However, the School Board provided its final

indemnity payment in June 2004. According to Edyce Rivet, the Mor-Tem Risk

Management claims representative assigned to the case, benefits were terminated

after she learned that Mr. Doyal commenced summer employment as the kitchen

manager for a local summer camp. Medical benefits were later terminated. The

lumbar surgery and carpal tunnel release were not provided.

This matter was instituted on August 5, 2004 when the School Board filed a

“Disputed Claim for Compensation” and, in its pre-trial statement, asserted that Mr.

Doyal fraudulently accepted compensation benefits while earning in excess of ninety

percent of his pre-accident wage, provided false statements regarding the occurrence

of the accident, and failed to disclose pre-existing back injuries in his employment

questionnaire and in the history provided to physicians who treated him after the

accident. The School Board sought reimbursement of all indemnity, medical, and

mileage benefits. Mr. Doyal filed his own claim and asserted entitlement to TTD

benefits as well as penalties and attorney’s fees due to the termination of benefits.

The workers’ compensation judge denied the School Board’s forfeiture claims,

reinstated TTD benefits from the date they were last paid, and found Mr. Doyal

entitled to continued medical care, including the recommended back surgery and

carpal tunnel release. The trial court awarded $8,000.00 in penalties and $25,000.00

in attorney’s fees pursuant to La.R.S. 23:1201(I).

The School Board appeals and argues that the workers’ compensation judge

erred in: 1) denying the claim for forfeiture of benefits under La.R.S. 23:1208 and

La.R.S. 23:1208.1; 2) concluding that Mr. Doyal suffered a work-related accident; 3)

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awarding penalties pursuant to La.R.S. 23:1201(I); and 4) ordering continued medical

care and the lumbar and carpal tunnel surgeries. Mr. Doyal answers the appeal and

asserts that he is due additional penalties for failure to authorize medical benefits. He

also seeks additional attorney’s fees for work performed on appeal.

Discussion

Forfeiture - Louisiana Revised Statutes 23:1208.1

The School Board first contends that the workers’ compensation judge erred

in denying its claim for forfeiture under La.R.S. 23:1208.1 as Mr. Doyal failed to

disclose previous injuries in his employment health questionnaire. The School Board

points to back, hip, shoulder, and leg injuries Mr. Doyal sustained when he fell from

a roof in 1991 and notes that he denied injury to these areas in the employment

questionnaire. At trial, Mr. Doyal explained that he completed the questionnaire with

the assistance of School Board personnel and that he thought the inquiry pertained

to whether he was currently having difficulty or whether he had suffered from the

problems in the recent past.

Louisiana Revised Statutes 23:1208.1, entitled “Employer’s inquiry into

employee’s previous injury claims; forfeiture of benefits[,]” provides:

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

(Emphasis added.) In Nabors Drilling USA v. Davis, 03-0136, pp. 5-7 (La. 10/21/03),

857 So.2d 407, 414-15, the supreme court explained:

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Forfeiture is a harsh remedy; therefore, statutory forfeiture
provisions such as LSA-R.S. 23:1208.1 must be strictly construed. Wise
v. J.E. Merit Constructors, Inc., 97-0684 (La.1/21/98), 707 So.2d 1214,
1218. By its express terms, LSA-R.S. 23:1208.1 provides for forfeiture
under three circumstances. There must be (1) an untruthful statement;
(2) prejudice to the employer; and (3) compliance with the notice
requirements of the statute. Id., citing Resweber v. Haroil Const. Co.,
94-2708, 94-3138 (La.9/5/95), 660 So.2d 7. The employer has the
burden of proving each of the elements required by the statute. Wise,
707 So.2d at 1218. The lack of any one of the elements is fatal to the
employer’s avoidance of liability under the statute. Id.

....

The “prejudice” that must be incurred by the employer for
forfeiture to apply is specifically defined by the statute. The untruthful
statement must “directly relate[ ] to the medical condition for which a
claim for benefits is made,” or it must “affect[ ] the employer’s ability
to receive reimbursement from the second injury fund.” LSA–R.S.
23:1208.1

A workers’ compensation judge’s factual findings relating to a forfeiture claim are

subject to the manifest error/clearly wrong standard of review. Chaisson v. Philip

Services Corp., 05-340 (La.App. 3 Cir. 11/2/05), 917 So.2d 514.

A portion of the workers’ compensation judge’s reasons for ruling1 in its denial

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The reasons for ruling, as it relates to both the forfeiture claims under La.R.S. 23:1208.1and
La.R.S. 23:1208 claims, reveals, in part:

[W]ith regard to a 1208.1 claim and the Medical Questionnaire, there’s
certain things in Revised Statute 23:1378 that are presumed to be permanent/partial
disabilities. None of those were available or present in Mr. Doyal’s case. They were
asked of him, and he denied them. The sine qua non of a 1208.1 is that the employer
must show that the claimant had a known pre-existing permanent/partial disability
that he lied about or that he failed to inform the employer about on the Post-hire
Medical Questionnaire. In my perusal of the medical evidence, I have found no
permanent/partial disability pre-existing the disability associated with the job
accident. The case of Weis versus J.E. Merit Constructors, Incorporated addresses
this issue. The case of - - in fact, what happened in this case was the Medical
Questionnaire was very broad and over vague with regard to, “Have you ever had” -
- the assertion that Mr. Doyal misinformed anybody about headaches, hip problems
or arthritic problems. Mr. Doyal, in this Court’s view, was a very simple man. He
did - - despite the argument presented by the employer in Brief, he did very poorly
in school. I reviewed his school records. . . . He as [sic] just an ordinary fellow.
Plain and genuine. True blue. Very credible. Never once did he waiver. Never once
did he fidget. The simple showing of missatements with regard to past medical
activities is insufficient to sustain a 1208.1 defense. There are other things the
employer must do. They must show that they were prejudiced by the failure to
disclose a known pre-existing permanent/partial disability. I have searched in vain
to see if there is any medical records to show that this was inevitable to follow from
the accident described. And, of course, I relied upon the case of Nabors Drilling,

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of the La.R.S. 23:1208.1 claim related to the credibility findings it afforded the

testimony of Mr. Doyal. Otherwise, the workers’ compensation judge focused on the

School Board’s failure to satisfy the specific requirements of La.R.S. 23:1208.1. This

U.S.A. versus Davis, a Supreme Court case, 857 So.2d, 407, and Hickman versus Jim
Smith Logging, 883 So.2d, 1072, a third circuit case September 2004. Now, I note
with regard to the argument made by the employer that, “Look, Mr. Doyal signed the
Post-hire Medical Questionnaire.” And so look at the Price versus Breaux Brothers
case. It’s well settled that, you know, he signed it, he has to live with it. However,
in Hickman versus Jim Smith Logging the Third Circuit declined to follow the Price
versus Breaux Brothers case with regard to the effect of a signature on an instrument
which the individual signer did not read. I am not convinced at all that Mr. Doyal
had any clear understanding of the questions being asked him giving [sic] his
educational record. Hickman talks about what is necessary to prove directly related
to, and somehow the employer argues that he had this T-9 fracture. He had some hip
problems. He had some headache problems. He had a multiplicity of problems.
None of which Mr. Doyal really denied at trial, although he failed to recall all of
those at his deposition. And, in fact, he - - after his deposition was taken, he made
an effort to correct his deposition. And before he could correct that deposition, an
amended claim was filed that he lied about these previous problems. So I thought I’d
have to take a look at that type of issue, and I note the case of Freiman versus Triad
Builders, a 902 So.2d 1220, Second Circuit case decided May 11th of 2005, where the
employer said, “Look, Mr. Freiman’s lied about his driving capabilities. We took his
deposition, and he said he can’t drive more than a hundred yards. Look at our video.
He drove from Shriever, Louisiana to Shreveport, Louisiana.[”] After his deposition
was taken, Mr. Freiman’s wife corrected him and said, “Hey, didn’t you remember
your driving?” So he thereafter corrected his deposition testimony. Mr. Doyal had
no significant problems after his T-9 fracture of any great merit. It’s true that he sued
his brother, but his testimony at trial was, “The only reason I sued my brother and his
insurance was because I needed somebody to pay the medical bills I had.” Now, as
any great attorney would do when the suit was filed, they alleged a multiplicity and
a sundry of things just like a criminal prosecutor brings great charges in an effort to
have, perhaps, a plea bargain to something much less. Now, Mr. Doyal said the
claim was settled and there was no trial, and he got his medical bills paid. And that’s
what happened with respect to falling off the trailer.

Moreover, with regard to the case of Hickman versus Jim Smith Logging,
there was no medical evidence or testimony presented that because he had a T-9
fracture, headaches, hip problems, et cetera, that the injuries he sustained when the
pan rack fell on him were inevitable or very likely to occur. The fact of the matter
is that once all of the past medical records were made known to the various
physicians, they said it wouldn’t change their opinion about the cause of Mr. Doyal’s
injuries, that being his injuries sustained from the pan rack fall. This being the case,
it has been found in the case of Hutchinson versus Aldworth Company, Incorporated,
888 So.2d, Page 1052, that when the employer failed to put forth any evidence that
the physicians’ opinions would be changed, they have not sufficiently proved a 1208
violation. I guess there appears to be some argument as well by the employer that he
had some degenerative type problems and that his continuing complaints are all
associated with that. However, the fact of the matter is Mr. Doyal has a disc injury,
a severe disk injury, which the physicians say given his age, is traumatic in nature
and not the result of any degenerative condition. Since I have concluded that Mr.
Doyal has proven by a preponderance of the evidence that the accident occurred, the
1208 argument made with respect to his alleged misrepresentations about that are
really mute [sic].

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determination is supported by the record as the School Board failed to put forth

evidence indicating how the previous injuries were related to those now alleged. At

most, comparison of the medical records reveals complaints of pain to similar parts

of the body. Of further significance, the School Board failed to put forth evidence

indicating that any knowledge that it could have obtained by disclosure would have

permitted it to recover under the second injury fund. See La.R.S. 23:1378.

This argument lacks merit.

Forfeiture - Louisiana Revised Statutes 23:1208

The School Board also appeals its La.R.S. 23:1208 claim and again asserts that

it was entitled to forfeiture due to Mr. Doyal’s failure to apprise physicians of his past

injuries and due to statements he made in his deposition regarding his earlier

accidents and pre-existing injuries. The School Board also contends that Mr. Doyal

accepted workers’ compensation benefits while he was earning wages as the kitchen

manager at the children’s summer camp.

Louisiana Revised Statutes 23:1208, entitled “Misrepresentations concerning

benefit payments; penalty,” provides, in 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.

The above provision requires only “that (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” before the forfeiture required by La.R.S.

23:1208 is applied. Resweber v. Haroil Constr. Co., 94-2708, p. 7 (La.9/5/95), 660

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So.2d 7, 12. A workers’ compensation judge’s determination as to the existence of

the above factors will not be reversed on appeal absent manifest error. Murphy v.

Brookshire Grocery Co., 02-808 (La.App. 3 Cir. 12/11/02), 832 So.2d 1157. After

review of the record, we find no such error in the workers’ compensation judge’s

determination.

Many of the misstatements/omissions complained of by the School Board stem

from remarks and notations made within various medical records. The School

Board’s allegations presume that Mr. Doyal had a thorough and sophisticated

understanding of his physicians’ reporting of his condition from the previous decade.

The record supports a determination that Mr. Doyal could have been unaware of these

notations and that this lack of understanding and related failure to report did not

warrant forfeiture. As the reasons for ruling indicate, the workers’ compensation

judge assessed Mr. Doyal’s credibility and, at various times, considered Mr. Doyal’s

educational background and intellectual capacity before concluding that the

statements complained of were not willfully made for the purpose of obtaining

benefits. This type of credibility determination is solely within the workers’

compensation judge’s province. Derouen v. C&D Prod. Spec., 98-57 (La.App. 3 Cir.

6/3/98), 718 So.2d 460. In short, even if false, the statements/omissions, whether to

physicians or in Mr. Doyal’s deposition, were not of the nature that required the

workers’ compensation judge to conclude that they were made for the purpose of

obtaining benefits.

Neither do we find merit in the assertion that forfeiture was required due to Mr.

Doyal’s summer employment with the School Board. There is no indication that Mr.

Doyal impermissibly withheld information regarding his employment or that he was

working in any capacity unacceptable to his physicians. He was provided flexible

working conditions and was able to work in response to his needs and abilities.

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Earnings were reported and compensation benefits that were paid were reimbursed.

The workers’ compensation judge was not required to find that this occurrence

warranted forfeiture.

This argument lacks merit.

Work-Related Accident

The School Board next questions the determination that Mr. Doyal suffered

injuries as a result of a work-related accident. As it did at trial, the School Board

contends that Mr. Doyal’s version of events regarding the sheet pan rack falling was

fabricated and that it was not corroborated by surrounding circumstances.

As the claimant, Mr. Doyal was required to establish, by a preponderance of

the evidence, that he received “personal injury by accident arising out of and in the

course of his employment[.]” La.R.S. 23:1031(A). See also Hoy v. Gilbert, 98-1565

(La. 3/2/99), 754 So.2d 207. A workers’ compensation judge’s factual determinations

regarding this burden are subject to the manifest error standard of review. Id. The

workers’ compensation judge’s reasons for ruling reveal an assessment of credibility

in favor of Mr. Doyal and those witnesses who corroborated certain aspects of his

version of events. The workers’ compensation judge afforded little weight to those

witnesses presented by the School Board in support of its position that the incident

was fabricated. After review, we find that the record supports these determinations.

Mr. Doyal testified that the sheet pan rack fell onto him after a wheel gave way

and knocked him to the ground. Ms. Mayo testified that she heard Mr. Doyal

moaning and, finding both Mr. Doyal and the sheet pan rack on the floor, assisted

with lifting the rack from the floor. She also explained that, although the rack’s

wheel was intact, the adjoining metal flange was bent. Princess Dorsey, one of Mr.

Doyal’s co-workers, also testified that she responded immediately afterwards. While

the particulars of Ms. Dorsey’s accounting of the event were contested throughout the

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litigation, Ms. Dorsey explained at trial that when she entered the kitchen, she saw

Mr. Doyal lifting himself from the floor and that she asked him whether he was

allright. Additionally, Johnnie Dubois testified that, although she was outside at the

time of the incident, she returned to find Mr. Doyal sitting in a chair and holding his

left arm. She explained that it appeared that he was “hurting” at the time. Ms. Mayo

completed the accident report the same day and, later that afternoon, Mr. Doyal

reported to the hospital. The hospital’s records indicate that he complained of

soreness and include a notation of contusion to the left shoulder.

The School Board points to a variety of alleged inconsistencies within and

between accounts of the event which it contends prevent a finding that Mr. Doyal’s

evidence established a work-related accident and injury. At trial, the School Board

focused on a lack of witness accounts regarding the noise that it asserts must have

been produced by the pans and rack falling to the floor. All of these factors,

including inconsistencies extracted from witness statements and medical records,

were heard at trial. According to the reasons for ruling, they were generally accorded

little weight. We find no manifest error in the workers’ compensation judge’s

determination in this regard.

This assignment lacks merit.

Penalties and Attorney’s Fees

The School Board next questions the determination that penalties and

attorney’s fees were due for termination of benefits. Louisiana Revised Statutes

23:1201(I) provides, in part:

Any employer or insurer who at any time discontinues payment
of claims due and arising under this Chapter, when such discontinuance
is found to be arbitrary, capricious, or without probable cause, shall be
subject to the payment of a penalty not to exceed eight thousand dollars
and a reasonable attorney fee for the prosecution and collection of such
claims.

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In determining whether an employer’s actions are arbitrary and capricious, the crucial

inquiry is whether the employer can articulate an objective reason for terminating

benefits at the time of the termination. Frith v. Riverwood, Inc., 04-1086 (La.

1/19/05), 892 So.2d 7. Since the determination of whether an employer was arbitrary

and capricious is essentially a question of fact, it is subject to the manifest error or

clearly wrong standard of review. Id.

In awarding penalties and attorney’s fees, the workers’ compensation judge

explained:

The Court finds that the employer’s termination of benefits in
August of 2004 after they had received information that Mr. Doyal
supplied them that he was working was arbitrary, capricious and
unreasonable. The continued denial of his claims for benefits remained
arbitrary, capricious and unreasonable in light of the fact that the
employer chose to ignore all of the inconsistencies in their own
witnesses’ versions of the incidents, chose to ignore the medical records
and somehow argued that Mr. Doyal doesn’t have a significant problem
when it’s all been found and substantiated by the medical professionals
who agree that he needs surgery. In fact, he has a right leg atrophy due
to the nerve damage associated with the disc herniation. They have not
complied with their continuing duty to make themselves aware of the
proper jurisprudence that resolves and addresses these types of issues .
...

The Court finds that, of course, the termination and the continued
termination and refusal to reinstate[,] arbitrary and capricious and
unreasonable. I award an Eight Thousand Dollar ($8,000.00) penalty.

We find no manifest error in this determination.

The School Board asserts that it had an objective reason for terminating

benefits as it learned that Mr. Doyal was employed by the summer camp and that he

failed to timely inform the School Board of these earnings. The workers’

compensation judge was not required to find this point persuasive as testimony

indicates that Mr. Doyal’s temporary work with the summer camp was extremely

limited in terms of both hours and physical effort. A portion of his responsibilities

involved training his replacement as he could no longer perform the work. Similar

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light duty or sedentary work was not available with the School Board. Furthermore,

while the School Board points to a failure to report earnings as a basis for the

termination, the record indicates that Mr. Doyal, in fact, reported his earnings and

returned TTD benefits that were erroneously paid after he began receiving wages. In

any event, there is no indication that this information could not have served as a valid

basis for the termination of medical benefits which occurred shortly after termination

of indemnity benefits.

Again, the School Board points to inconsistencies in witness accounts and Mr.

Doyal’s medical complaints. It argues that these provided it with a reasonable basis

for questioning the occurrence of the accident. As reference to the reasons for ruling

reveal, the workers’ compensation judge found the School Board’s reliance on these

alleged inconsistencies unreasonable as it seized upon alleged inconsistencies in

statements in support of Mr. Doyal, but ignored similar inconsistencies in its own

witness accounts.

This assignment lacks merit.

Continued Medical Treatment

Neither do we find merit in the School Board’s final assignment of error in

which it questions the award of continuing medical treatment of the low back

condition and the carpal tunnel surgery recommended by his physicians. In a July

2004 report, Dr. Bradley Bartholomew, a neurosurgeon, recommended that, after

further testing to rule out additional problems in the cervical spine, Mr. Doyal

undergo a decompression and diskectomy at the L4-5 level. Dr. Donald Smith, a

neurosurgeon who saw Mr. Doyal upon referral by the School Board, concurred in

December 2004 that Mr. Doyal may require the recommended lumbar surgery and

further recommended that he have the carpal tunnel surgery ordered by the workers’

compensation court. Although the School Board argues that these recommendations

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were made without knowledge of Mr. Doyal’s medical history, a February 2005 letter

from Dr. Smith indicates, after he was provided with records revealing Mr. Doyal’s

previous treatment and complaints, that: “No specific additional findings were

recorded at any of these visits that would change my initial evaluation and impression

as stated on the reports of 13 December 2004.”

This assignment lacks merit.

Additional Penalties

Penalties in the amount of $8,000.00 were awarded pursuant to La.R.S.

23:1201(I). In his answer to the appeal, Mr. Doyal contends that the workers’

compensation judge should have awarded separate $8,000.00 penalties under La.R.S.

23:1201(I) for termination of indemnity benefits and for termination of medical

benefits. The wording of La.R.S. 23:1201(I), set forth herein, indicates otherwise.

The paragraph speaks broadly of “claims” and subjects an employer to “a penalty not

to exceed eight thousand dollars . . .” In light of this language, the workers’

compensation judge did not err in awarding a single, $8,000.00 penalty.

Mr. Doyal also suggests that an additional penalty should have been awarded

under La.R.S. 23:1201(F), the paragraph providing for penalties in the event that

payments are not made. Again, we find no merit in this argument. In this case, both

indemnity and medical benefits were initially provided and later terminated. Thus,

the workers’ compensation judge appropriately limited penalties in this situation in

accordance with La.R.S. 23:1201(I).

Attorney’s Fees

The workers’ compensation judge awarded $25,000.00 in attorney’s fees. The

School Board did not appeal the quantum of that award in its appeal. In his answer,

Mr. Doyal seeks additional attorney’s fees for work performed on appeal. In light of

our earlier affirmation of the award of penalties and attorney’s fees under La.R.S.

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23:1201(I), we award additional attorney’s fees for work performed on appeal in the

amount of $2,500.00.

DECREE

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

affirmed. Additional attorney’s fees in the amount of $2,500.00 are awarded to the

appellee, Brian Doyal. Costs of this proceeding are assessed to the appellant, the

Vernon Parish School Board, in the amount of $5,537.45.

AFFIRMED.

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