Simmon Taylor v. G. W. Morgan Logging Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-294

SIMMON TAYLOR

VERSUS

G.W. MORGAN LOGGING COMPANY, INC.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 2,
PARISH OF RAPIDES, NO. 10-08133
HONORABLE JAMES BRADDOCK, JUDGE

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J. DAVID PAINTER
JUDGE

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

AFFIRMED

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

Bradley J. Gadel
728 Jackson St.
Alexandria, LA 71301
Counsel for Defendant-Appellant:
G.W. Morgan Logging Company, Inc.

John E. Morton
P.O. Box 11950
Alexandria, LA 71315
Counsel for Plaintiff-Appellee:
Simmon Taylor

PAINTER, Judge

Defendant, G.W. Morgan Trucking Company, Inc. (Morgan), appeals the

judgment of the workers’ compensation judge (WCJ) ordering it to reinstate

Plaintiff, Simmon Taylor’s, temporary total disability indemnity benefits

retroactively to the date of termination and to pay penalties and attorney’s fees.

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

FACTS

It was stipulated that on June 24, 2009, Plaintiff was injured while in the

course and scope of his employment for Morgan. Morgan paid indemnity and

medical benefits until August 24, 2010. At that time, all benefits were terminated

because Morgan determined that Plaintiff failed to disclose a previous injury on his

post-hire medical questionnaire.

In September 2010, Plaintiff filed a disputed claim for compensation. In its

answer, Morgan alleged that:

[M]isrepresentations in claimant’s post[-]hire medical questionnaire were
not truthful, and that claimant’s said failure to answer truthfully directly
relates to the medical condition or conditions for which the present claim for
benefits is being sought, and/or affects your defendant’s ability to receive
reimbursement from the Second Injury Fund, warranting enforcement by
this Court of LSA-R.S. 23:1208.1 and all benefits both in equity and law
benefiting your defendant herein.

Prior to trial, the parties stipulated that the accident was in the course and

scope of Plaintiff’s employment and that Plaintiff sustained a low back injury in an

offshore accident in November 2001. It was further stipulated that on July 16,

2003, Dr. Marco Ramos performed microscopic bilateral foraminectomies and

laminectomies at L4-5 and L5-S1 on Plaintiff and that on November 3 2008,

Plaintiff did not disclose a prior injury and/or surgery on the post-hire medical

questionnaire he signed. The parties further stipulated that the employer’s

application for Second Injury Fund benefits was denied.
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The WCJ rendered judgment in favor of Plaintiff. The WCJ ruled that

Morgan failed to carry its burden under La.R.S. 23:1208.1 and arbitrarily and

unreasonably terminated Plaintiff’s benefits, including surgery recommended by

his treating physician. The court ordered reinstatement of benefits and payment of

penalties and attorney’s fees. Morgan appeals. Taylor answered the appeal asking

for additional attorney’s fees on appeal.

DISCUSSION

Violation of La.R.S. 23:1208

Defendant first argues that the WCJ erred in finding that it did not carry its

burden of proof with regard to its La.R.S 23:1208.1 defense by failing to recognize

that the triple level laminectomy being recommended for Plaintiff would result in

substantially greater disability than it would have had the prior injury not been

present.

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
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:

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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 gave extensive oral reasons for his finding as follows:

So, the sole issue before the Court is, really, whether or not Mr.
Simmon Taylor has violated Revised Statute 23:1208.1 and allowing
the employer to effectively terminate his benefits on August 24th of
2010. In the -- in the case of Benoit vs. Ace Transportation, 2010-371,
a Louisiana Appeal Third Circuit decision rendered December 8th,
2010, 551 So.3d 192, writ denied 2011-0014, LA March 25th 2011, 61
So.3d 663, the Court stated that forfeiture of Workers’ Compensation
benefits for failure to truthfully answer a medical questionnaire
regarding previous injuries or disabilities is a harsh remedy, and thus,
statutory forfeiture must be strictly construed.

A claimant forfeits his or her right to Workers’ Compensation
benefits for failure to truthfully answer a -- a medical questionnaire
regarding previous injuries or disabilities if there is one, an untruthful
statement; two, prejudice to the employer; and three, compliance with
a notice requirements of the forfeiture statute. The employer maintains
the burden of proving each of these elements to avoid liability under
the statute. There is no disagreement, I believe, that there was a proper
notice on the medical second -- second injury medical questionnaire
presented to Mr. Simmon Taylor.

As required to support the claim that an employee forfeits his or
her rights to Workers Compensation benefits based on prejudice to the
employer, the employee’s failure to truthfully answer a medical
questionnaire regarding previous injuries or disabilities, an employer
can establish prejudice in one of two ways. One, the employer can
show that the employee’s untruthful answer directly relates to the
medical condition at issue or, two, show the employer’s answer on the
questionnaire affects the employer’s ability to recover from the
second injury fund.

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In determining whether a Workers’ Compensation claimant’s
untruthful answer to a question on the employment application
regarding previous injuries disabilities, or other medical conditions
directly relate to the medical -- medical condition that is the subject of
the claim for purposes of anti-fraud forfeiture statute. Direct relation
is established when subsequent injury was inevitable or very likely to
occur because of presence of preexisting condition, and is not based
on mere anatomical connexity.

The deposition[] of Dr. Marco Ramos was introduced into
evidence, as well as the deposition of Dr. Donald Smith. With regards
to whether the current condition sustained by Mr. Taylor directly
relates to the previous injury he had, Dr. Smith was deposed and
questioned about this, and on his deposition -- in his deposition, on
Page 16 beginning at Line 9, to such a question, Dr. Smith responded,
“Now, the first part of what you read about the -- as to whether a
second injury would have occurred if it had not been for the fact of the
first injury, I really can’t answer that. I think that’s something that is
unknown. I’m not sure that the injury itself hinges on the fact that
someone had a previous problem there,” and that’s through Line 17.

With regards to Dr. Ramos’ questioning about this, Dr. Ramos
was clear that in his deposition, that after he performed the first
surgery on Mr. Simmon Taylor, he indicated that Mr. Taylor had a
full recovery from that surgery. He indicated that his -- presently,
when Dr. Ramos saw Mr. Taylor for the current problem he had low-
back pain with radicular symptoms, and he recommended the surgery.
He said this would “This will probably result in some sort of
Permanent/Partial Disability.” He -- he emphasized in his deposition
testimony with respect to Mr Taylor’s current conditions that this was
completely different injury to different areas of the anatomy than Mr.
Taylor had previously sustained. When questioned about the legal
language presented to him in Revised Statute 23:1208.1 at Page 13,
beginning at Line 12, Dr Ramo’’ response was, “I don’t know this
legal language. That is foreign to me, but all I can tell you is that the
second injury was independent of the first, No. 1. No. 2, the second
injury caused problems in levels and areas that were not affected by
the first injury. So, if there is a merger, the merger is a small
percentage.” He seemed to indicate that there may be a possibility that
he would be likely to have a second injury but I dont find, based on
his equivocal answers and the -- and the answer of Dr. Smith, that the
employer has shown that the subsequent injuries in the current
litigation were directly related to the first injury[].

[T]o sustain the burden of proof with respect to the second
issue, whether it affects the employer’s ability to -- to recover from
the second injury fund, this was addressed by our State Supreme
Court in Nabors’ Drilling, USA vs. Davis, LA October 21St, 2003,
857 So.2d 407 wherein the Court stated that in order for an employer
to be prejudiced by a subsequent injury they must show a merger with
the subsequent injury and the first injury to produce a substantially
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greater disability than had previously been experienced by the injured
worker. In fact, they said this: “materially and substantially greater is
the language used by the Supreme Court. It recognized that in many --
any -- many instances where there’s a second injury, that there may be
a greater disability, in most cases, associated with the second injury,
but just a greater disability alone is not sufficient to establish a
materially and substantially greater disability.

With respect to whether or not this is a materially and
substantially greater disability that Mr. Taylor has sustained with
regard to the subsequent accident while employed for GW Morgan
Logging, Dr. Donald Smith, in his deposition, stated on Page 16 “I do
feel that a patient who has had previous surgery and has scarring, and
who has the effects of surgery and the weakening effects that that does
have on a level, I feel that the subsequent -- I feel that his end result
would be a greater than an amount of impairment than in a patient
who had only undergone one operative procedure, all things being
equal.” At -- at Line 18, “Assuming that the patient goes -- progresses
and goes to have that surgery at three levels that has been
recommended I think that his end impairments would be greater than
an individual who had never had the first surgery and the scarring,
and, of course, the effects of the injury and the surgery are what I’m
speaking to here.”

Again, Dr. Ramos’ testimony not contradicted by anything else
the Court can find in the record, indicated that Mr. Taylor after his
first surgery, had a complete and full recovery, which would indicate
that there was no disability or restrictions based upon Mr. Taylor from
that previous injury, although Revised Statute 23:1378(a), various
provisions there indicate there are presumptions of Permanent/Partial
Disability one of those being a ruptured disc. This only
presumption-- and the presumption can be rebutted by appropriate
evidence, and the evidence has been -- been rebutted by Mr. Taylor
with the deposition testimony of Dr. Ramos that he had a full recovery

The other issue concerning the 12 -- 23:1208.1 forfeiture
concerns the signing and completion of the questionnaire by Mr.
Taylor himself, and Mr Taylor testified that he was given this form by
Mr Morgan, he rode it around in his truck for two weeks, and Mr.
Taylor didn`t impress this Court with being completely a literate
individual. In the case of Holmes vs. J.E. Merit Constructors
Incorporated, 97-553 Louisiana Appeal Third Circuit, October 29th,
1997, 702 So.2d 1126, the Third Circuit opined that Louisiana
Revised Statute 23:1208.1 should be strictly construed against the
employer who is presumed to be in a better position to prevent
accidents in the workplace through its hiring and firing decisions, than
it is the worker who seldom has the luxury of opting out of the
workplace. They adopted the language of the trial court in Kina vs.
Grand Cove Nursing Home, 93-779 Louisiana Appeal Third Circuit,
March 9th, 1994 640 So.2d 348, writ denied 94-0865, LA May 13th,
1994 641 So.2d 234. The language they adopted is the following:
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“When there is any legitimate ambiguity concerning the questionnaire
or inquiries into an employee’s medical history, a Court should lean
favorably toward the employee in determining whether he knowingly
failed to answer the questionnaire truthfully. In other words, from the
sanction of LA Revised Statute 23:1208.1 to apply the employer
should have the burden to prove that the questionnaire or inquiries
into the employee’s medical history were clear and unambiguous, that
the conditions were such that an employee fully understood that his
answers had to be thorough and complete. There are sound reasons to
require an employer to explain a medical history questionnaire to an
employee who is often uneducated Conceivably, it is in the
employer’s advantage that the claimant not answer a medical history
form correctly or completely, because in that case, it would not owe
any Workers’ Compensation at all for an re-injury, regardless of the
circumstances. The potential for abuse would be great, and the best
safeguard would be to require that -- to require or to find that it is
implicit within the meaning of 20 -- 23:1208.1 that the employer
present the medical history questionnaire to the perspective employee
in a thorough manner.”

Given the testimony of Mr. Taylor with regards to the
presentation of the medical history questionnaire presented to him by
GW Morgan Logging, the Court finds that it’s not dissimilar to the
situation in Hickman vs. Jim Smith Logging, 2004-157 Louisiana
Appeal Third Circuit, September 29th, 2004 883 So.2d 1072. Of
course, this was also a logging case, and a log truck driver who was
presented the medical questionnaire while he was working in the field
rode it around for a while a turned it in to the employer, and the Court
found that this was an insufficient type of questioning, or presentation
of such a questionnaire to an injured worker and found that Mr.
Hickman had not violated Revised Statute 23:1208.1. And for all the
reasons previous -- just discussed, the Court likewise finds that the
employer, GW Logging Company, has failed to prove that Mr.
Simmon Taylor is subject to forfeiture of his benefits under Revised
Statute 23:1208.1, based on the clear depositions of Dr. Ramos and
Dr. Smith, that the -- no evidence that this injury in -- in question was
inevitable, due to the second -- due to the previous injury, the fact that
neither could -- physician could assign a greater materially and
substantial greater disability to Mr. Taylor as a result of this second
injury. The -- the circumstances surrounding the completion of the
medical questionnaire is -- is precisely the same as in Hickman vs.
Jim Smith Logging.

The Court finds that the termination of benefits by the employer
in this case [is] arbitrary and capricious and affix[es] an Eight
Thousand Dollar ($8,000.00) penalty for the termination of benefits.
For the work that Mr. Morton has done in the presentation of the
claim on behalf of Mr. Taylor, the Court assesses an Eighty-five
Hundred Dollar ($8,500.00) attorney fee. Interest [is] to run on these
sums of money in accordance with law, and Mr. Simmon Taylor is
entitled to have his benefits reinstated on the basis of Temporary Total
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Disability and entitled to have the surgery performed as recommended
by Dr. Marco Ramos.

(Paragraph breaks added)

Having reviewed the record herein, we find no error in the WCJ’s

findings.

Penalties and Attorney’s Fees

Morgan further asserts that the trial court erred in awarding 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.

Bethel v. Lake City Trucking, 11-1542, pp. 7-8 (La.App. 3 Cir.

4/4/12), 87 So.3d 338, 342.

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

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

awarded.

Further, we award $3,500.00 in additional attorney’s fees for work

done on appeal.

CONCLUSION

For these reasons, the judgment of the WCJ is affirmed. Further,

Defendant is ordered to pay additional attorney’s fees on appeal in the

amount of $3,500.00. Costs of this appeal are assessed to Defendant.

AFFIRMED.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-294

SIMMON TAYLOR

VERSUS

G.W. MORGAN LOGGING COMPANY, INC.

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

reasons.

I agree with the majority’s conclusions regarding the substance of this case.

That is, I see no manifest error in the workers’ compensation court’s determination

that there was no violation of La. R.S. 23:1208.1. However, I also see no arbitrary

or capricious handling of this matter by the employer. Thus, I concur in part, and I

dissent in part.

It was a stipulated fact that the employee, Mr. Taylor, neglected to advise his

employer of a prior accident which resulted in a prior surgery to his low back.

Though there may be some medical distinctions, the fact is that the current injury

with which Mr. Taylor suffers also afflicts his low back. It is also stipulated that

the employer’s application to the Second Injury Fund was denied because the

records did not disclose Mr. Taylor’s previous medical history. I do not think the

employer acted arbitrarily or capriciously in arguing that it has been prejudiced as

a result of its employee’s failure to report. Thus, I would reverse the $8,000.00 in

penalties and the $8,500.00 in attorney fees awarded to the plaintiff based on the

trial court’s holding that the defendant was arbitrary and capricious in the

termination of its benefits.