James Keys v. Republic Servs, Inc./allied Waste Servs of Acadiana-Scott

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-252

JAMES KEYS

VERSUS

REPUBLIC SERVICES – AL OF SCOTT

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 4,
PARISH OF LAFAYETTE, NO. 10-07784
HONORABLE ADAM JOHNSON, JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of Chief Judge Ulysses Gene Thibodeaux, J. David Painter,
and Shannon J. Gremillion, Judges.

AFFIRMED AND RENDERED.

Gremillion, J. concurs in part, dissents in part, and assigns written reasons.

Howard C. Dejean
111 N. Court St.
Opelousas, LA 70570
Counsel for Plaintiff-Appellee:
James Keys

Trent J. Oubre
P.O. Box 3197
Baton Rouge, LA 70821
Counsel for Defendant-Appellee:
Republic Services, Inc.

PAINTER, Judge

Defendant, Republic Services, Inc., appeals the judgment of the workers’

compensation judge (WCJ) finding Plaintiff, James Keys, to be entitled to

temporary total disability benefits from the date of injury to the present and all

related and reasonably necessary medical benefits, dismissing Defendant’s claims

for forfeiture and reimbursement of benefits, and awarding penalties and attorney’s

fees. Finding no error in the judgment of the WCJ, we affirm.

FACTS

Although Defendant disputed the occurrence of an on the job accident, Keys

alleged that he was injured in the course and scope of his employment while lifting

a hot water tank in the back of a truck on May 11, 2009. Defendant paid benefits

until May 18, 2010. Keys filed a disputed claim for benefits. Defendant filed a

reconventional demand claiming that Keys was not entitled to benefits because he

was in violation of La.R.S. 23:1208 in that he willfully made false statements

regarding his prior medical history. The WCJ found that Keys was, in fact, injured

in the course and scope of his employment. He further found that Defendant did

not willfully make false statements as to his medical history. Finally, the WCJ

found that Defendant acted arbitrarily and capriciously in terminating benefits and

awarded penalties and attorney’s fees. Defendant appeals.

DISCUSSION

Violation of La.R.S. 23:1208

Defendant first asserts that the WCJ erred in finding that Keys did not forfeit

his right to benefits as a result of violating the provisions of La.R.S. 23:1208.

The determination by a WCJ as to whether a claimant has made a
false statement, willfully, 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. However, we must keep in mind
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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
(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.

La.R.S. 23:1208 authorizes forfeiture of benefits upon proof 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.
The statute applies to any false statement or misrepresentation made
willfully by a claimant for the purpose of obtaining benefits. All of these
requirements must be present before a claimant can be penalized. Because
this statute is penal in nature, it must be strictly construed, both in its
substantive ambit and in its penalty provisions.

Concerning the standard of appellate review of a forfeiture claim, the
court in 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), stated:

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.

Phillips v. Diocese of Lafayette, 869 So.2d at 316-17, (quoting in part
Flintroy v. Scott Cummins Salvage, 36,857, p. 12 (La.App. 2 Cir. 3/10/03),
839 So.2d 1231, 1238, writ denied, 03-1068 (La.6/6/03), 845 So.2d 1093
(citations omitted))

Jim Walter Homes, Inc. v. Guilbeau, 05-1473, pp. 5-6 (La.App. 3 Cir. 6/21/06),

934 So.2d 239, 243-44.

The WCJ found that Keys did not willfully misrepresent his medical history

for the purpose of obtaining benefits. The WCJ based this finding on the evidence

that Keys suffers from Huntington’s disease, which causes dementia and/or

memory loss and affects his ability to remember previous events. After reviewing

the record herein, we find no error in this finding.

Entitlement to Benefits

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Defendant next asserts that the trial court erred in awarding temporary total

disability benefits arguing that Keys’ treating physician confirmed that Keys’

current condition is caused by Huntington’s disease, which is not the consequence

of a work related injury; that Keys would be back at work but for the Huntington’s

disease and his failure to comply with medical care for that condition; and that

Keys was released to work by a second orthopedic doctor.

The WCJ found that ignoring the effects of the Huntington’s disease and in

light of the fact that his treating physician has never released him to any

employment, Keys met his burden of proving that he is temporarily totally

disabled. In support of his conclusion, the WCJ cited Miller v. Roger Miller Sand,

Inc., 94-1151 (La. 11/30/94), 646 So. 2d 330. That case concerned a man who had

a stroke after being injured on the job. His employer terminated benefits when it

was found that Miller was permanently totally disabled by the stroke. The

Louisiana Supreme court found as follows:

In the present case, the evidence clearly supports the hearing officer’s
determination that plaintiff’s ten to 15 foot fall into a ditch while at work in
February 1991 caused the rotator cuff tear in his right shoulder. The
evidence is also clear that the stroke plaintiff suffered on April 15, 1991 is
an unrelated medical event which worsened plaintiff’s condition, and
rendered him completely and totally disabled. However, the mere fact that
the stroke, and not the work injury, rendered plaintiff totally disabled does
not negate the fact that the work injury left plaintiff with some form of
disability. While Miller Sand is not required to pay for the increased
disability caused by plaintiff’s subsequent non-work-related stroke, Miller
Sand must pay for the disability caused by plaintiff’s work-related fall. The
hearing officer was clearly wrong to terminate disability payments due to the
stroke. Therefore, in order to determine if plaintiff is entitled to continuing
disability payments, we must determine the extent of his disability caused by
the work-related fall, giving no consideration to any additional disability
caused by the stroke.

Id. at 334-35.

Here, the WCJ determined that Defendant must pay for the disability caused

by Plaintiff’s work-related injury. After reviewing the record, we find no error in

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the conclusion that Keys carried his burden of showing that he is entitled to

temporary total disability benefits. See Mallery v. Dynamic Indus., Inc., 11-1221,

(La.App. 3 Cir. 3/14/12), 86 So.3d 826.

Penalties and Attorney’s Fees

“Awards of penalties and attorney’s fees in workers’ compensation
are essentially penal in nature, being imposed to discourage indifference and
undesirable conduct by employers and insurers. Although the Workers’
Compensation Act is to be liberally construed in regard to benefits, penal
statutes are to be strictly construed.” Williams v. Rush Masonry, Inc., 98-
2271, pp. 8-9 (La.6/29/99), 737 So.2d 41, 46 (citation omitted). An appellate
court reviews the WCJ’s decision to award penalties and attorney fees using
the manifest error/clearly wrong standard of review. Ducote v. La. Indus.,
Inc., 07-1536 (La.App. 3 Cir. 4/2/08), 980 So.2d 843.

Id. at 830.

The WCJ stated in its reasons for judgment that:

This court is of the opinion that the defendant simply ignored Mr.
Keys’ underlying condition due to the work-related accident and focused on
had he not had the Huntington’s he would have received treatment, surgery
and would be back at his regular job. This is not the proper analysis. The
Court finds the defendant’s termination of benefits and what information it
had at the time of the termination, the defendant’s decision to terminate the
benefits was arbitrary, capricious or without probable cause.

Again, in light of the record, we find no error in the trial court’s

determination that penalties and attorney’s fees are due or in the amounts awarded.

In his answer to appeal, Plaintiff requests additional attorney’s fees for

having to answer and defend this appeal. “A workers’ compensation claimant is

entitled to an increase in attorney fees to reflect additional time incurred in

defending an employer/insurer’s unsuccessful appeal.” Nash v. Aecom Tech.

Corp., 07-990, p. 8 (La.App. 3 Cir. 2/6/08), 976 So.2d 263, 268. We award

Plaintiff an additional attorney fee of $3,500 for the work done on appeal.

CONCLUSION

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For these reasons, the judgment of the WCJ is affirmed. We award

additional attorney’s fees on appeal in the amount of $3,500.00. Costs of this

appeal are assessed to Defendant.

AFFIRMED AND RENDERED.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-252

JAMES KEYS

VERSUS

REPUBLIC SERVICES – AL OF SCOTT

GREMILLION, Judge, concurs in part, dissents in part and assigns written

reasons.

At the risk of oversimplifying this matter, the majority had to answer three

questions. The first was whether Mr. Keys was entitled to continued benefits. The

second was whether he committed fraud. The third was whether Mr. Keys was

entitled to additional penalties and attorney fees for his employer’s bad actions.

Depending heavily on the broad boundaries of the manifest error standard, I concur

with the workers’ compensation court and with my colleagues in the majority on

the first two questions. However, with regard to the third question, I disagree.

The simple fact of the matter, as clearly expressed in this record, is that this

employee repeatedly misrepresented his own medical history. He misrepresented

it to his doctors, in his deposition and to the workers’ compensation judge. The

workers’ compensation judge and the majority shrug off these repeated

misrepresentations as mere memory loss from an employee who was “confused”

but otherwise “credible.” The WCJ was certainly within its discretion when it

ruled as it did. However, the mere fact that the WCJ ruled against the employer on

the factual and legal issues involved here does not in any way suggest that the

employer was arbitrary and capricious in requiring that its defenses be heard.

The defendant was not arbitrary and capricious when it asked the workers’

compensation judge to unwind the tangle between an injury resulting from an

unwitnessed accident and the clearly unrelated Huntington’s disease. The

defendant was certainly not arbitrary and capricious when it pointed out that Mr.

Keys had misrepresented his own medical history consistently and repeatedly.

Thus, I would reverse the workers’ compensation court with regard to the penalties

and attorney fees it awarded.

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