Herschel Carter v. Turner Industries, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-643

HERSCHEL CARTER

VERSUS

TURNER INDUSTRIES

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APPEAL FROM THE
OFFICE OF WORKERSʼ COMPENSATION, DISTRICT 1-EAST
PARISH OF OUACHITA, NUMBER 11-04267
BRENZA IRVING JONES, WORKERS’ COMPENSATION JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and J.
David Painter, Judges.

AFFIRMED.

Charles J. Duhe, Jr.
Heidel A. Schneider
Taylor, Wellons, Politz & Duhe, APLC
7924 Wrenwood Boulevard, Suite C
Baton Rouge, LA 70809
(225) 387-9888
COUNSEL FOR DEFENDANT-APPELLANT:
Turner Industries

Louis V. Champagne
Dina F. Domangue
Ashley P. Thomas
McKeithen, Ryland, Champagne & Domangue
P. O. Box 1029
Columbia, LA 71418
(318) 649-2626
COUNSEL FOR PLAINTIFF-APPELLEE:
Herschel Carter

PAINTER, Judge.

The employer, Turner Industries, appeals the award of temporary total

disability (TTD) benefits, penalties, attorney’s fees, and for reimbursement of all

medical, mileage, and prescription expenses incurred as a result of the work-related

accident of March 3, 2001, as well as the rulings that the employee, Herschel

Carter, is entitled to seek medical treatment from the physician of his choice and

that the employer failed to prove that the employee violated La.R.S. 23:1208. For

the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On March 3, 2011, Carter was employed by Turner Industries as a general

foreman earning $21.50 per hour. He alleges that he injured his back, on that date,

when he attempted to lift two wooden boards while in the course and scope of his

employment building scaffolding for a construction site. He had an MRI on March

9, 2011, and he was found to have two herniated discs. His last day of work was

March 14, 2011. In April, an initial evaluation with a neurosurgeon was approved;

however, the neurosurgeon’s request for approval of a surgical procedure was

denied. Moreover, the employer refused to authorize any further treatment and did

not pay any benefits at all based on its assertion that that Carter made false and

inconsistent statements concerning his injury.

Carter filed a disputed claim for compensation, and Turner Industries filed a

reconventional demand asserting a violation of La.R.S. 23:1208. The matter

proceeded to trial. The Workers’ Compensation Judge (WCJ) found that there was

no violation of La.R.S. 23:1208 and that Carter was entitled to TTD benefits from

the date last worked. The WCJ also awarded $2,000.00 in penalties for failure to

authorize medical treatment, $2,000.00 in penalties for failure to pay indemnity

benefits, and $5,000.00 in attorney’s fees. Thereafter, the WCJ issued an amended

judgment finding that Carter was entitled to seek medical treatment from the

physician of his choice and to be reimbursed for all medical, mileage, and

prescription expenses incurred as a result of this injury. Defendant appealed both

the original and amended judgments. Carter did not answer the appeal.

DISCUSSION

Violation of La.R.S. 23:1208

Turner Industries first asserts that the WCJ committed manifest error in

finding that Carter did not violate the provisions of La.R.S. 23:1208, which

provides for a forfeiture of benefits by an employee who willfully makes a false

statement or misrepresentation for the purpose of obtaining benefits. Specifically,

Turner Industries asserts that Carter had a long history of back pain dating back to

at least October 6, 2004, and that he had taken medication for back pain before this

accident. Turner Industries further asserts that Carter specifically denied ever

taking pain medication for a prior back injury. Reference is also made to an

incident in 2008, when Carter fell down some steps at his home. An x-ray of

Carter’s lumbar spine taken in connection with the 2008 incident revealed a mild

spondylosis at L3-4 and L4-5, the areas where Carter now has herniated discs.

Turner Industries also alleges that Carter sought treatment for low back pain and

demanded an MRI a few weeks prior to the accident that is the subject matter of

this litigation. However, the medical records from that date indicated that Carter

was complaining of a pinched nerve in his left hip.

For his part, Carter contends that his trial testimony does not contain any

denial of previous back complaints and, in fact, contains admissions of “muscle

tightness in his back” prior to the subject accident. Carter further contends that he

clearly identified the fall in 2008 in his answers to interrogatories. He alleges that

he made no willful, false representation of any fact.
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In Jim Walter Homes, Inc. v. Guilbeau, 05-1473, pp. 5-6 (La.App. 3 Cir.

6/21/06), 934 So.2d 239, 243-44, this court recognized:

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 WCJ finds that all
three of “these requirements are met, Section 1208 applies and its
forfeiture provisions must be enforced.” Id. at 14.

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:

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
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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)).

In this case, in oral reasons for ruling, the WCJ stated:

This Court does not find that claimant forfeited his right to
receive workers’ compensation benefits due to 1208 fraud. His
deposition testimony revealed admission to prior back complaints,
injuries[,] and accidents. Defendants relied on a recorded statement to
support their contentions of fraud. They contend the recorded
statement include[s] denials of previous injuries to claimant’s back.
The statement was not offered into evidence.

Inasmuch as the statement is not a part of the record, this Court
could not examine it to determine the weight it should be afforded.
This Court cannot examine the specific question asked claimant
concerning his pre-existing condition, nor can the Court examine his
answers.

Any summary cannot be given a greater weight than actual
questions and answers posed as presented in claimant’s deposition
testimony and the testimony he offered in this Court.

After our review of the record, we find no manifest error in the WCJ’s ruling

that there was no violation of La.R.S. 23:1208 by Carter. Turner Industries did not

meet its burden of proof in this regard.

Occurrence of Work-Related Accident

Carter claims that the injured his back on March 3, 2011, when he lifted

some boards at the construction site. The accident was not witnessed. Carter’s

wife testified at trial that Carter came home from work and told her about “some

pain in his back and shooting down to his legs.” The WCJ found that no testimony

was presented by Turner Industries to refute Carter’s allegations regarding the

accident and that Carter’s account was confirmed by his wife and by medical

evidence. Carter was able to perform his job duties prior to March 3, 2011, but

was found to have herniated discs and was unable to work thereafter.
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The jurisprudence establishes that:

An employee can prove an unwitnessed accident with her
testimony alone if “(1) no other evidence discredits or casts serious
doubt upon [her] version of the accident; and (2)[her] testimony is
corroborated by the circumstances following the alleged incident.”
Marange [v. Custom Metal Fabricators, Inc., 11-2678, p. 2 (La.
7/2/12), 93 So.3d 1253, 1257]. The employee’s testimony may be
corroborated by the testimony of coworkers, spouses, or friends, or by
medical evidence. Ardoin v. Firestone Polymers, L.L.C., 10-245
(La.1/19/11), 56 So.3d 215 (citing Bruno v. Harbert Int’l, Inc., 593
So.2d 357 (La.1992)). The WCJ’s determinations that an employee is
credible and that she satisfied her burden of proof are factual
determinations that should not be disturbed by a reviewing court
unless the determinations are “clearly wrong . . . absent a showing of
manifest error.” Bruno, 593 So.2d at 361.

Franklin v. Calcasieu Parish Sch. Bd., 12-1032, p. 2 (La.App. 3 Cir. 2/6/13), 108

So.3d 907, 909.

We find that the WCJ’s ruling was based on reasonable credibility

evaluations that are supported by the record. As such, we cannot reverse the

WCJ’s findings.

Penalties and Attorney’s Fees

The WCJ awarded $2,000.00 in penalties for the failure to authorize medical

treatment, $2,000.00 in penalties for the failure to pay indemnity benefits, and

$5,000.00 for attorney’s fees. Turner Industries finally argues that the imposition

of penalties and attorney’s fees was not warranted since it “reasonably

controverted” Carter’s claim by obtaining factual and medical information to show

that either there was no accident or that Carter violated La.R.S. 23:1208.

Louisiana Revised Statutes 23:1201 is the relevant statute in
determining whether an employer should be assessed penalties and
attorney fees for failure to timely pay indemnity or medical benefits.
The statute provides that no penalties or attorney fees shall be
assessed “if the claim is reasonably controverted or if such
nonpayment results from conditions over which the employer ... had
no control.[”] La.R.S. 23:1201(F)(2). Further, “[t]o avoid the
imposition of penalties and attorney fees for the nonpayment of
benefits, the employer has a continuing obligation to investigate, to
assemble, and to assess factual information before denying benefits.”
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Romero v. Northrop-Grumman, 01-24, pp. 10-11 (La.App. 3 Cir.
5/30/01), 787 So.2d 1149, 1156, writ denied, 01-1937 (La.10/26/01),
799 So.2d 1144.

An employer avoids the imposition of penalties
and attorney’s fees by satisfying its continuing obligation
to investigate, assemble, and assess factual information
prior to it denying benefits. Furthermore, the decision to
award penalties and attorney’s fees is factual in nature
and will not be reversed on appeal absent manifest error.

Odom [v. Kinder Nursing Home, 06-1442, p. 24 (La.App. 3 Cir.
4/25/07), 956 So.2d 128,] 141-42 (citations omitted). “The purpose of
imposition of penalties and attorney fees is to discourage indifference
and undesirable conduct by employers and insurers.” Burns v.
Interstate Brands Corp., 09-705, p. 7 (La.App. 3 Cir. 2/3/10), 30
So.3d 271, 277.

Green v. Nat’l Oilwell Varco, 10-1041, p. 15 (La.App. 3 Cir. 4/27/11), 63 So.3d

354, 364.

In oral reasons for judgment, the WCJ stated:

[A]ccording to the records of the adjuster, the investigation was never
completed in this matter. The adjuster chose to rely on hearsay
allegations from Mark VanWinkle [claimant’s supervisor] about back
complaints allegedly made to claimant’s coworkers prior to the
accident. No evidence was presented to support those allegations.
And even if they were found to be correct, pre-existing conditions are
not preventative of recovery under the Workers’ Compensation Act.

Therefore, defendants did not have a reasonable basis to deny
this claim. Claimant provided persuasive testimony concerning the
occurrence of the accident. His testimony was supported by the
testimony of his wife and by medical evidence. Claimant’s deposition
testimony was forthcoming in regard to prior back complaints and
previous accidents. Claimant was able to work prior to the accident,
but commencing with the accident, the disabling symptoms appeared
and continued to manifest itself [sic].

Herniated discs were discovered post-accident that were not
present prior to the accident.

After reviewing the record, we find no manifest error in either the award of

or amount of penalties and attorney’s fees given by the WCJ, and we affirm these

awards.

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DECREE

We affirm the original and amended judgments of the WCJ. Carter is

entitled to TTD benefits from the date last worked as well as to seek treatment for

the work-related injuries from the physician of his choice and for reimbursement of

all medical, mileage, and prescription expenses incurred as a result of the work-

related accident of March 3, 2011, and to penalties and attorney’s fees. No

additional attorney’s fees are awarded for the appeal because Carter did not ask for

this relief. Costs of this appeal are assessed to Defendant-Appellant, Turner

Industries.

AFFIRMED.

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