Cheryl F. Benoit v. Ace Transportation

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-371

CHERYL F. BENOIT

VERSUS

ACE TRANSPORTATION

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 4
PARISH OF LAFAYETTE, NO. 07-05989
SAM L. LOWERY, WORKERS’ COMPENSATION JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
Elizabeth A. Pickett, Judges.

AFFIRMED.

Michael Lee Hebert
715 St. Ferdinand Street
Baton Rouge, LA 70802
Telephone: (225) 612-9444
COUNSEL FOR:
Plaintiff/Appellee - Cheryl F. Benoit

Michael Edward Parker
Allen & Gooch
P. O. Box 81129
Lafayette, LA 70598-1129
Telephone: (337) 291-1000
COUNSEL FOR:
Defendants/Appellants - Liberty Mutual Insurance Company and
Ace Transportation

THIBODEAUX, Chief Judge.

In this workers’ compensation case, the defendants appeal the judgment

of the Office of Workers’ Compensation (“OWC”). The plaintiff, Cheryl Benoit,

worked as a driver for defendant, ACE Transportation (“ACE”). In 2006, while

driving for ACE, Ms. Benoit was involved in a vehicular accident in Texas. She

returned to Louisiana and sought treatment for injuries to her back. ACE and its

insurer, Liberty Mutual Insurance Company (“Liberty”), denied her claims for

treatment. Specifically, ACE and Liberty alleged that Ms. Benoit gave false

statements about her medical history on her employment application. Because Ms.

Benoit failed to report a prior workplace injury and had received social security

disability benefits, ACE and Liberty claimed they were deprived of recovering from

the Second Injury Fund.

The OWC disagreed and found that Ms. Benoit suffered a compensable

accident and was entitled to benefits. The OWC also found that Ms. Benoit did not

commit fraud. ACE and Liberty appeal. For the foregoing reasons, we affirm the

judgment of the OWC.

I.

ISSUES

We must decide whether:

(1) the OWC manifestly erred in refusing to impose
sanctions on Ms. Benoit for submitting an alleged
false claim;

(2) the OWC manifestly erred by finding that Ms.
Benoit did not forfeit her benefits under La.R.S.
23:1208.1;

(3) the OWC manifestly erred by finding that Ms.
Benoit was entitled to indemnity benefits from the
date of her accident and all medical costs associated
with Dr. Robles’ treatment; and,

(4) the OWC manifestly erred by imposing penalties
and fees on ACE and Liberty.

II.

FACTS AND PROCEDURAL HISTORY

ACE hired Ms. Benoit as a truck driver in 2003. At that time, she

completed an employment questionnaire and denied any prior back injuries. Ms.

Benoit failed to disclose that she injured her back thirteen years previously, while

working at Wal-Mart. After the Wal-Mart accident, Ms. Benoit was diagnosed with

a herniated disc in her back. She received treatment, and in 1992, her injuries

appeared to have subsided. From 1995 to 2005, Ms. Benoit collected social security

disability benefits for a multitude of problems including diabetes, nervousness, heel

spurs, corporal tunnel syndrome, degenerative disc disease, and back problems.

Despite these infirmities, Ms. Benoit completed and passed several physical exams

and received her commercial driver’s license.

On November 10, 2006, while driving for ACE, Ms. Benoit was

involved in an accident which caused injuries to her back. She initially sought

treatment from Dr. Hector Robles and has continued receiving treatment from Dr.

Robles for her injuries from the ACE accident. Ms. Benoit sought workers’

compensation benefits from ACE. ACE and Liberty denied her claims, and Ms.

Benoit initiated the underlying lawsuit. The OWC awarded Ms. Benoit indemnity

and medical benefits and assessed penalties and attorney fees against ACE and

Liberty. They appeal. Ms. Benoit answers the appeal and requests additional

attorney fees for work done on appeal.

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III.

LAW AND DISCUSSION

Standard of Review

The supreme court articulated the standard of review in workers’

compensation cases as follows:

In worker’s compensation cases, the appropriate
standard of review to be applied by the appellate court to
the OWC’s findings of fact is the “manifest error-clearly
wrong” standard. Brown v. Coastal Construction &
Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704
So.2d 8, 10, (citing Alexander v. Pellerin Marble &
Granite, 93-1698, pp. 5-6 (La. 1/14/94), 630 So.2d 706,
710). Accordingly, the findings of the OWC will not be set
aside by a reviewing court unless they are found to be
clearly wrong in light of the record viewed in its entirety.
Alexander, 630 So.2d at 710. Where there is conflict in the
testimony, reasonable evaluations of credibility and
reasonable inferences of fact should not be disturbed upon
review, even though the appellate court may feel that its
own evaluations and inferences are as reasonable.
Robinson v. North American Salt Co., 02-1869 (La.App.
1 Cir. 2003), 865 So.2d 98, 105[, writ denied, 03-2581 (La.
11/26/03), 860 So.2d 1139].

Dean v. Southmark Const., 03-1051, p. 7 (La. 7/6/04), 879 So.2d 112, 117.

Section 23:1208 Sanctions

ACE and Liberty assert in their first assignment of error that the OWC

erred by not assessing sanctions against Ms. Benoit under La.R.S. 23:1208. Section

1208 provides sanctions against claimants for reporting false workers’ compensation

claims. Prior to this appeal, neither ACE nor Liberty ever raised the issue of Section

1208 fraud. Under La.R.S. 23:1208, fraud is an affirmative defense that must be

specifically pled. Odom v. Kinder Nursing Home, 06-1442 (La.App. 3 Cir. 4/25/07),

956 So.2d 128. ACE and Liberty failed to plead fraud as an affirmative defense in

their Answer. Thus, they are not permitted to do so on appeal.

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Moreover, even if ACE and Liberty had properly pled fraud as an

affirmative defense in their Answer, they failed to follow through with the argument

on appeal. The preeminent case in Louisiana jurisprudence on this issue is Resweber

v. Haroil Constr. Co., 94-2708 (La. 9/5/95), 660 So.2d 7. ACE and Liberty, however,

mention neither Resweber, nor any other case on the subject, in their brief. In fact,

other than in their assignments of error and in a short paragraph on page eight of their

brief, ACE and Liberty never mention Section 1208.

Section 1208.1 Forfeiture

ACE and Liberty allege Ms. Benoit has forfeited her right to benefits,

pursuant to La.R.S. 23:1208.1. Louisiana Revised Statutes 23:1208.1 provides for

the forfeiture of an employee’s benefits when the employee fails to truthfully answer

a medical questionnaire regarding previous injuries, disabilities, or other medical

conditions if an answer directly relates to the medical condition for which he seeks

benefits or the untruthfulness prejudices the employer’s ability to seek reimbursement

of benefits it paid the employee from a statutorily-created fund, known as the Second

Injury Fund. See La.R.S. 23:1371. Employers are allowed to ask employees about

prior injuries so that they may:

[e]ncourage the employment of physically handicapped
employees who have a permanent, partial disability by
protecting employers . . . 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 form the subsequent injury alone.

La.R.S. 23:1371(A).

Questionnaires may be used to obtain information about an employee’s

permanent partial disability (“PPD”). A PPD is “any permanent condition, whether

congenital or due to injury or disease, of such seriousness as to constitute a hindrance

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or obstacle to obtaining employment, to retention by an employer, or to obtaining

reemployment if the employee becomes unemployed.” La.R.S. 23:1371.1(5). Thirty-

four conditions qualify as permanently disabling. La.R.S. 23:1378(F).

Because forfeiture is a harsh remedy, La.R.S. 23:1208.1 must be strictly

construed. Nabors Drilling USA v. Davis, 03-136 (La. 10/21/03), 857 So.2d 407. A

plaintiff forfeits her claims if there is: “(1) an untruthful statement; (2) prejudice to

the employer; and (3) compliance with the notice requirements of the statute.” Id. at

414. The employer maintains the burden of proving each of these elements to avoid

liability under the statute. Id.

An employer can establish prejudice in one of two ways. First, the

employer can show that the employee’s untruthful answer directly relates to the

medical condition at issue. Wise v. J.E. Merit Constructors, Inc., 97-684 (La.

1/21/98), 707 So.2d 1214. An employer can also establish prejudice by showing that

the employee’s answer on the questionnaire affects the employer’s ability to recover

from the second injury fund. Id.

(A) Direct Relation Test

“[D]irect relation is established when the subsequent injury was

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

condition.” Wise, 707 So.2d at 1220. Here, ACE and Liberty argue that because the

1990 accident and the 2006 accident involved the same body parts, Ms. Benoit

forfeited her rights under La.R.S. 23:1208.1. Our court and the supreme court have

rejected the anatomical identity test. Thus, we must reject ACE and Liberty’s

argument that a direct relationship existed on that basis.

Next, we must determine whether the subsequent injury was inevitable

or very likely to occur because of the presence of the preexisting condition. Ms.

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Benoit’s preexisting condition was an injury to her cervical spine. She was treated

for that injury, and two years following the initial accident, Dr. Ricardo Leoni noted

that Ms. Benoit had “no nerve root compression, no weakness or reflex asymmetry,

no atrophy - chronic strain, no surgical lesions.” She had no injuries related to any

herniation or ruptured discs. Moreover, she had no injuries to her lumbar spine. Dr.

Leoni’s notes leave the impression that any spinal problems Ms. Benoit suffered as

a result of the 1990 accident were resolved by 1992. Notably, after 1992, Ms. Benoit

did not seek treatment for her neck or back until the time of the ACE accident in

2006. Indeed, before the 2006 accident, Ms. Benoit worked as a truck driver and held

a commercial driver’s license. She routinely passed the physical exam required for

the license.

Ms. Benoit’s subsequent injury occurred in November 2006. Ms. Benoit

was driving an ACE truck when the vehicles in front of her slowed, and she applied

the brakes. The truck’s load shifted and pushed the truck forward, causing a

collision. Following the accident, Ms. Benoit’s physicians ordered MRI tests of the

cervical and lumbar spine. Ms. Benoit was diagnosed with compressive disc disease,

bulging discs, osteoarthritis, and disc herniation.

There is nothing in the record to show that the 2006 injuries were

inevitable or very likely to occur as a consequence of the 1990 accident. To the

contrary, Dr. Leoni’s notes as well as Ms. Benoit’s physical employment as a truck

driver and her ability to pass numerous physical exams lead to the conclusion that Ms.

Benoit’s previous conditions had resolved by the time of the accident in 2006. ACE

and Liberty provided no expert testimony or documentation to rebut this conclusion.

Thus, ACE and Liberty failed to prove a direct relation between ACE’s questionnaire

and the 2006 injury that forms the basis of this claim.

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(B) The Second Injury Fund

We must next determine whether Ms. Benoit’s answer on the

questionnaire was prejudicial because it affected ACE and/or Liberty’s ability to be

reimbursed from the Second Injury Fund. ACE and Liberty argue that their rights

were prejudiced because Ms. Benoit failed to disclose that she had neck and back

injuries and that non-disclosure prevented ACE and/or Liberty from reimbursement

from the Second Injury Fund.

“Reimbursement occurs when the employee has a PPD, when the

employer has knowledge of the PPD, and when the PPD merges with a subsequent

injury to result in a greater disability.” Wise, 707 So.2d at 1221 (citing La.R.S.

23:1378(A); La.R.S. 23:1371(A)). Here, ACE and Liberty cannot convincingly argue

that Ms. Benoit suffered from a PPD. Her condition is not enumerated in the list of

PPD conditions found in La.R.S. 23:1378(F), and the medical evidence in the record

does not even hint that Ms. Benoit had any of these conditions. Moreover, Ms.

Benoit passed a physical examination for truck driving seven years before the

accident in Houston. Her health clearly did not impede her from obtaining

employment or performing her duties at ACE.

Similarly, ACE and Liberty cannot prove merger of her previous injury

with the injury at issue. In Nabors Drilling, 857 So.2d at 420, the supreme court

enunciated a specific definition to the concept of “merger”:

In this connection, we note that under LSA-R.S.
23:1371(C)(2), a ‘merger’ occurs not when the disability
resulting with a subsequent injury in conjunction with a
pre-existing permanent partial is ‘greater’ than that which
would have resulted had the pre-existing permanent partial
disability not been present, but when the disability is
‘materially and substantially greater.’ Two adverbs
‘materially’ and ‘substantially’ modify the adjective
‘greater.’ Consequently, although two disabling injuries
added together will in most instances produce a ‘greater

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disability,’ it is not enough under the statute simply to ‘add
up’ the employee’s injuries.

The record is devoid of any evidence that Ms. Benoit’s first injury

merged with her second injury, and ACE and Liberty failed to present any evidence

of their own. Specifically, ACE and Liberty submitted no evidence or expert

testimony on the issue of merger. Instead, they rely solely on Ms. Benoit’s previous

award of social security benefits. ACE and Liberty neglect evidence, however, that

explains the complete reason for Ms. Benoit’s social security benefits. Namely, Ms.

Benoit requested social security benefits due to a multitude of health problems

including diabetes, nervousness, heel spurs, corporal tunnel syndrome, degenerative

disc, and a “bad back.” We cannot reasonably conclude that Ms. Benoit’s social

security claim was based solely on injuries to her spine, as ACE and Liberty would

like us to believe. ACE and Liberty also neglect evidence demonstrating that Ms.

Benoit recovered from her 1990 accident. Indeed, before the 2006 accident, Ms.

Benoit had not sought treatment for her neck or back since 1992. She passed physical

exams to acquire her commercial driver’s license, and she ably performed her job for

ACE. Thus, ACE and Liberty’s argument that a merger of Ms. Benoit’s injuries

occurred falls short.

In sum, ACE and Liberty have not met their burden of showing forfeiture

under 23:1208.1.

Indemnity

ACE and Liberty also argue that they do not owe indemnity benefits to

Ms. Benoit because the judgment of the OWC does not indicate a specific starting

date for payment of indemnity benefits and does not specify the medical bills to be

paid. ACE and Liberty’s arguments are totally meritless. Because Ms. Benoit has not

worked since the date of the accident, she is entitled to indemnity benefits retroactive
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to the date of the November 2006 accident. The benefits are calculated based upon

her average weekly wage.

Moreover, all of Dr. Robles’ treatments related to Ms. Benoit’s present

condition. Thus, she is entitled to reimbursement of all medical bills attributed to his

treatment of her injuries. See Scott v. City of Pineville, 08-1410, (La.App. 3 Cir.

4/1/09), 8 So.3d 813, writ denied, 09-981 (La. 6/19/05), 10 So.3d 742.

Fees and Penalties

ACE and Liberty next claim that the OWC erred in awarding penalties

and attorney fees. The award of penalties and attorney fees is a question of fact,

subject to the manifest error standard of review. Scott, 8 So.3d 813. “The purpose

of imposition of penalties and attorney fees in workers’ compensation cases is to

discourage indifference and undesirable conduct by employers and insurers.” Id. at

818. This court, in Johnson v. Transamerica Waste Co., 99-190, pp. 9-10 (La.App.

3 Cir. 6/2/99), 741 So.2d 764, 770, addressed the issue as follows:

In order to avoid the imposition of penalties, an
employer must reasonably controvert the workers’
compensation claimants right to benefits. The test to
determine if the employer has fulfilled its duty is whether
the employer or his insurer had sufficient factual and
medical information to reasonably counter the factual and
medical information presented by the claimant. (Citations
omitted).

In this case, it is clear that ACE and Liberty made no attempt to gather

any additional information about Ms. Benoit. They failed to conduct a thorough

investigation, and they failed to offer any medical or scientific evidence of their own.

Instead, ACE and Liberty attempted, time and time again, to delay Ms. Benoit’s

claim. Their actions are inexcusable, and we find no error in the OWC’s award of

penalties and attorney fees to Ms. Benoit. Moreover, we award an additional

$3,500.00 in attorney fees to Ms. Benoit for work on this appeal.
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IV.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the OWC and

award an additional $3,500.00 in attorney fees to Ms. Benoit for work on this appeal.

Costs of this appeal are assessed to ACE and Liberty.

AFFIRMED.

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