Beauregard Memorial Hospital v. Joy T. Barber

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-663

BEAUREGARD MEMORIAL HOSPITAL

VERSUS

JOY T. BARBER

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - DISTRICT# 3
PARISH OF CALCASIEU, NO. 07-6552
CHARLOTTE L. BUSHNELL, WORKERS’ COMPENSATION JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Elizabeth A. Pickett, J. David Painter, and James T. Genovese,
Judges.

AFFIRMED.

Charles V. Musso Jr.
Plauche, Smith & Nieset
P. O. Drawer 1705
Lake Charles, LA 70602
Counsel for Plaintiff/Appellant:
Beauregard Memorial Hospital

Michael B. Holmes
Hebert, Holmes & Bertrand
P. O. Drawer 790
Kinder, LA 70648
Counsel for Defendant/Appellee:
Joy T. Barber

PICKETT, JUDGE.

The plaintiffs, Beauregard Memorial Hospital (BMH) and its insurer Highlands

Insurance Company(in receivership)(hereinafter referred to collectively as BMH),

appeal a decision by a Worker’s Compensation Judge (WCJ) finding that its disabled

employee, Joy Barber, had not committed fraud, as contemplated by La.R.S. 23:1208,

in her dealings with the sitters provided to her by BMH. We affirm the decision of

the WCJ.

FACTS

The claimant, Joy Barber, a Certified Nursing Assistant (CNA), was employed

by the plaintiff beginning in 1997. While in the course and scope of her employment,

she was injured in two different incidents—the first in April of 1999 and the second

in May 2000. Both incidents involved the lifting and/or turning of patients and both

resulted in injuries to her back/neck requiring a number of surgeries. The surgeries

left Ms. Barber with severe functional disabilities which limit her capacity to care for

herself. Because of her functional disabilities, Dr. Dean Moore ordered sitters to help

Ms. Barber care for herself. Ms. Barber had a number of different sitters. Beginning

in 2004, sitter services were provided by D & C Caring Hands. Individual sitters

took over in January 2005, beginning with Katy Doucet, who was followed by

Amanda Mouton and Claudia Kibodeaux. The last sitter she had was Kelly Perry

Lejeune. She engaged Ms. Lejeune’s services while renting a trailer from Ms.

Lejeune’s parents. Hard feelings developed between the parties, and, in September

2007, Ms. Barber discharged Ms. Lejeune and moved to different accommodations.

Shortly thereafter, Ms. Lejeune called Cindy Moore, an adjuster at BMH’s

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compensation carrier, and reported that Ms. Barber had insisted that Ms. Lejeune pay

her half of the salary she received as Ms. Barber’s sitter.

That telephone call prompted BMH to file the current action. After a hearing

on the matter, the WCJ found that the plaintiffs had failed to prove that Ms. Barber

had violated La.R.S. 23:1208 and dismissed the action at the plaintiffs’ costs. The

plaintiffs now appeal.

LAW AND DISCUSSION

The law applicable to the case sub judice was recently discussed by this court

in Acadian Ambulance Service, Inc. v. Darbonne, 08-983, pp. 2-3 (La.App. 3 Cir.

2/4/09), 6 So.3d 855, 857-58, writ denied, 09-523 (La. 4/17/09):

Louisiana Revised Statutes 23:1208 governs the parameters for
determining if a claimant has committed fraud for the purpose of
obtaining workers’ compensation benefits. The applicable sections of
that statute read as follows:

§ 1208. Misrepresentations concerning benefit payments; penalty

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.

Under the unambiguous and clear language of the statute, an
employer claiming that an employee has violated La.R.S. 23:1208 must
prove “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.” Resweber v. Haroil Constr. Co.,
94-2708, p. 7 (La.9/5/95), 660 So.2d 7, 12. If the workers’
compensation judge finds that all three of “these requirements are met,
Section 1208 applies and its forfeiture provisions must be enforced.” Id.
at 14.

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The determination by a workers’ compensation judge as to
whether a claimant has willfully made a false statement for the purpose
of obtaining workers’ compensation benefits is a finding of fact and is,
therefore, subject to the manifest error standard of review. Phillips v.
Diocese of Lafayette, 03-1241 (La.App. 3 Cir. 3/24/04), 869 So.2d 313.

The determination of whether there is a false
statement or representation willfully made for the purpose
of obtaining any benefit or payment involves inherently
factual determinations and, thus, this court’s review of
those findings by the WCJ is governed by the manifest
error standard. Under that standard of review, this court
may only reverse the WCJ’s decision if we find (1) there is
no reasonable factual basis for the finding in the record and
(2) the finding is clearly wrong or manifestly erroneous.

Rowan Cos., Inc. v. Powell, 02-1894, 02-1895, p. 6 (La.App. 1
Cir. 7/2/03), 858 So.2d 676, 680, writ denied, 03-2177 (La.11/14/03),
858 So.2d 425 (citations omitted).

Moreover, we must keep in mind that La.R.S. 23:1208(E) is penal
in nature. Any statute that is penal in nature must be strictly construed
in favor of the one receiving benefits under that chapter of the law.
Fontenot v. Reddell Vidrine Water Dist., 02-439, 02-442, 02-478 (La.
1/14/03), 836 So.2d 14; Olander v. Schillilaegh’s, 04-725 (La.App. 3
Cir. 3/23/05), 899 So.2d 97.

Ms. Barber never claimed that she did not receive money from the sitters. She

explained that the money she received from the sitters was, in one instance, to cover

household expenses where the sitter and her family were sharing living quarters with

Ms. Barber, and in the other instances, the money was to reimburse her for advances

on the sitter’s salary or for money lent to cover expenses the sitter could not meet at

the time. Although three of the sitters—Amanda Mouton, Claudia Kibodeaux, and

Kelly Perry, testified that Ms. Barber demanded one-half of their wages, Cindy

Moore, Ms. Barber’s claims adjuster, who had spoken to all of Ms. Braber’s sitters,

testified that only Kelly Perry complained to her that Ms. Barber had demanded half

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of her pay. We note there was never any allegation that Ms. Barber made claims for

any sitter service which had not been provided.

In her reasons for judgment, the WCJ stated the following (emphasis ours):

The sole issue is whether or not Barber committed fraud involving
an arrangement with her sitters whereby the sitters would pay her [part
of] the money the sitters earned from the insurer with Barber.

After reviewing the record, considering the law and the evidence,
the Court finds that there is no proof of 1208 fraud. The evidence was
so convoluted, it is very likely that if payments were made to Barber, the
sitters paid reimbursements for expenses. There is absolutely no
indication that the sitters’ services were not provided. These sitter
services were recommended by Dr. Dean Moore. If the parties
exchanged money, there seems to be a reasonable basis for the
exchange.

Under these circumstances, the Court finds that Ms. Barber did
not violate the workers’ compensation statute by wilfully making a false
statement or representation for purpose of collecting workers’
compensation benefits. Therefore, the hospital[’s] claim for relief is
denied.

In KLLM, Inc. v. Reed, 00-295, p. 6 (La.App. 3 Cir. 10/11/00), 771 So.2d 728,

731, this court noted:

[S]tatutory forfeiture is a harsh remedy and, therefore, must be strictly
construed. Benoit v. Frank’s Casing Crew, 97-1522 (La.App. 3 Cir.
5/20/98); 713 So.2d 762, writ denied, 98-1697 (La.10/9/98); 726 So.2d
31. . . . Whether an employee has forfeited his right to workers’
compensation benefits is a question of fact that will not be disturbed on
appeal absent manifest error. Smith v. Quarles Drilling Co., 99-171
(La.App. 3 Cir. 6/2/99); 741 So.2d 829, writ denied, 99-1949
(La.10/8/99); 751 So.2d 227.

After reviewing the record, and particularly taking into account the WCJ’s

advantage of being able to observe the demeanor of the witnesses, we are unable to

say the WCJ’s decision is manifestly erroneous.

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Accordingly, for the reasons stated, the decision of the WCJ is affirmed. All

costs of this appeal are assessed against the plaintiff/appellant, Beauregard Memorial

Hospital.

AFFIRMED.

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