Mark Edwards v. Southeastern Freight Lines, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-871

MARK EDWARDS

VERSUS

SOUTHEASTERN FREIGHT LINES, INC.

**********

APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 3
PARISH OF CALCASIEU, NO. 13-00259
SAM L. LOWERY, WORKERS’ COMPENSATION JUDGE

**********

ULYSSES GENE THIBODEAUX
CHIEF JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, James T. Genovese,
and David Kent Savoie, Judges.

AFFIRMED.

James Edward Burks
P. O. Box 16067
Lake Charles, LA 70616-6067
Telephone: (337) 474-6106
COUNSEL FOR:
Plaintiff/Appellant - Mark Edwards

John Joseph Rabalais
Rabalais Unland
200 Caroline Court
Covington, LA 70433
Telephone: (985) 893-9900
COUNSEL FOR:
Defendant/Appellee - Southeastern Freight Lines, Inc.

Michelle A. Breaux
P. O. Box 747
Lake Charles, LA 70602-0747
Telephone: (337) 493-8443
COUNSEL FOR:
Plaintiff/Appellant - Mark Edwards

David Paul Bruchhaus
Mudd & Bruchhaus
410 East College Street
Lake Charles, LA 70605
Telephone: (337) 562-2327
COUNSEL FOR:
Plaintiff/Appellant - Mark Edwards

THIBODEAUX, Chief Judge.

The claimant, Mark Edwards, appeals from an Office of Workers’

Compensation (OWC) judgment granting summary judgment to the employer,

Southeastern Freight Lines, Inc. (Southeastern), on the issue of fraudulent conduct

based upon La.R.S. 23:1208.1 Finding no genuine issues of material fact or law,

we affirm.

I.

ISSUES

We must decide whether the trial court erred in granting summary

judgment to the employer based upon the employee’s violation of La.R.S. 23:1208.

II.

FACTS AND PROCEDURAL HISTORY

Mr. Edwards was hired as a driver for Southeastern, a Lafayette

company, in August of 2012. On October 24, 2012, he alleges to have sustained an

injury to his low back and legs while helping to unload a steel beam or cylinder.

He characterized it as a pulled muscle, called his employer, and finished most of

his deliveries.

Mr. Edwards was seen at the Baton Rouge General Hospital in the

early morning hours on October 25, 2012, and was diagnosed with a lumbar region

1
Louisiana Revised Statutes 23:1208 states, in pertinent part:

A. It shall be unlawful for any person, for the purpose of obtaining or
defeating any benefit or payment . . ., either for himself or for any other person, to
willfully make a false statement or representation.

strain and lumbago.2 He denied prior back problems. He did not return to work,

and Southeastern began paying indemnity benefits.

On November 1, 2012, Mr. Edwards saw Dr. Adam Kennedy. Mr.

Edwards denied previous back problems. Dr. Kennedy diagnosed lumbago. He

reported that Mr. Edwards’ x-rays demonstrated a fracture dislocation or

spondylolisthesis.3 Dr. Kennedy also reported spondylosis at L5-S1.4

On the morning of November 2, 2012, adjuster Selynthia Tate called

Mr. Edwards at home and took a recorded statement. She asked Mr. Edwards

about previous work related injuries, prior injuries from automobile accidents, and

previous back problems, all of which Mr. Edwards denied. Weeks later, she

received search results showing previous work-related automobile accidents and

injuries and information regarding hospital treatment the day before the accident.

Benefits were temporarily terminated in early December, and Mr. Edwards filed

the first of three 1008 claims.

Mr. Edwards underwent physical therapy which made matters worse,

and he developed more symptoms. On December 19, 2012, Mr. Edwards saw Dr.

Neil Romero. Mr. Edwards denied previous back or leg symptoms before the

subject accident. Dr. Romero reported x-ray and MRI results showing disc space

collapse, disc protrusion, and advanced stenosis at L5-S1. He ordered a steroid

2
“Disc degeneration that affects the lumbar spine is referred to as lumbago. Lumbago
refers to generalized pain that is localized to the low back. Symptomatic lumbar disc
degeneration is most common in people of working age, usually between 30 and 50.”
Http://www.laserspineinstitute.com; and Mosby’s Medical Dictionary, 8th edition. (2009)
available at http://medical-dictionary.thefreedictionary.com/lumbago.
3
Spondylolisthesis is “a term used to describe vertebral slippage. It is characterized by
the displacement of one vertebra over another, and slippage can occur in any direction.”
Http://www.laserspineinstitute.com.
4
Spondylosis is defined as “age-related degeneration of the spine, either in the vertebrae,
facet joints or intervertebral discs.” Http://www.laserspineinstitute.com.

2

injection. Later, a second MRI was requested for the low back, and a cervical MRI

was also being sought. These tests were not approved.

Mr. Edwards’ benefits were permanently terminated in March, 2013.

From October, 2012, through March, 2013, Southeastern paid Mr. Edwards

disability benefits of $11,248.00 plus medical benefits. Southeastern filed a

motion for summary judgment seeking forfeiture of benefits based upon

misrepresentations willfully made for the purpose of obtaining workers’

compensation benefits under La.R.S. 23:1208. Southeastern also sought restitution

for the benefits that it had paid.

The only error assigned and argued in Mr. Edwards’ appellate brief is

the granting of the motion for summary judgment. For the following reasons, we

affirm summary judgment in favor of Southeastern on the issue of the fraudulent

misrepresentations, but we decline to grant the restitution omitted in the OWC

judgment.

III.

STANDARD OF REVIEW

When an appellate court reviews a trial court’s judgment on a motion

for summary judgment, it applies the de novo standard of review, “using the same

criteria that govern the trial court’s consideration of whether summary judgment is

appropriate.” Gray v. Am. Nat’l Prop. & Cas. Co., 07-1670, p. 6 (La. 2/26/08),

977 So.2d 839, 844 (quoting Supreme Servs. & Specialty Co., Inc. v. Sonny Greer,

06-1827, p. 4 (La. 5/22/07), 958 So.2d 634, 638). The motion for summary

judgment shall be granted if the pleadings, depositions, answers to interrogatories,

admissions, and affidavits, if any, show that there is no genuine issue of material

3

fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P.

art. 966(B).

IV.

LAW AND DISCUSSION

Mr. Edwards contends that the OWC erred in finding that he violated

La.R.S. 23:1208 and in granting summary judgment to Southeastern on that basis.

Section 1208(A) states that it is unlawful for a person “to willfully make a false

statement or representation” in order to obtain workers’ compensation benefits.

Section 1208(E) provides that “[a]ny employee violating this Section shall, upon

determination by [the] workers’ compensation judge, forfeit any right to

compensation benefits under this Chapter.” The only requirements for forfeiture of

benefits under La.R.S. 23:1208 are: (1) a false statement or representation, (2)

willfully made, and (3) for the purpose of obtaining workers’ compensation

benefits. Resweber v. Haroil Constr. Co., 94-2708 (La. 9/5/95), 660 So.2d 7.

Section 1208 applies to false statements or representations regarding prior injuries;

it applies to statements made to insurance investigators and physicians alike; and it

imposes no requirement that the employer show prejudice. Id.

In affirming the trial court’s finding of fraud, the Louisiana Supreme

Court in Resweber distinguished Section 1208 from Section 1208.1, interpreting

the latter to apply to statements made on employment applications where no

benefits are being sought. While Section 1208.1 is not applicable in this case, the

court’s distinctions are instructive in analyzing the criteria of Section 1208.

Additionally, the claimant’s attorney attempted to question the adjuster in this case

on prejudice to the employer; thus, clarification will be beneficial. Under Section

4

1208.1, there is no forfeiture of benefits unless the false answer relates to a medical

condition for which benefits are claimed or it affects the employer’s

reimbursement from the second injury fund.

Unlike Section 1208, Section 1208.1 requires a showing of prejudice

and a written notice on the application of the consequences of untrue answers. In

explaining the notice requirement, the court stated that “the critical consideration

of the legislature in requiring notice in Section 1208.1 and not in Section 1208,

was not the type of false statement made, but rather the timing of the statement and

the context in which it is made.” Id. at 13. Where an untrue answer is given prior

to a workers’ compensation claim, in a context completely unrelated to workers’

compensation, the person may be unaware of the consequences; thus, notice of the

potential forfeiture is required under Section 1208.1. Id. However, no notice is

required for false statements and misrepresentations made willfully to obtain

benefits under Section 1208 which is “generally applicable once an accident has

allegedly occurred and a claim is being made.” Id. at 14.

In response to one claimant’s argument that Section 1208 was too

broad because it resulted in forfeiture of benefits for any false statement, no matter

how inconsequential, the Resweber court stated:

This argument fails to recognize that the statute does not
require the forfeiture of benefits for any false statement,
but rather only false statements that are willfully made for
the purpose of obtaining benefits. It is evident that the
relationship between the false statement and the pending
claim will be probative in determining whether the
statement was made willfully for the purpose of obtaining
benefits. A false statement which is inconsequential to
the present claim may indicate that the statement was not
willfully made for the purpose of obtaining benefits.
Clearly, an inadvertent and inconsequential false
statement would not result in forfeiture of benefits.

5

Id. at 16 (first emphasis in original) (second emphasis added). With these tenets in

mind, we now turn to our de novo review of this case.

Southeastern’s motion for summary judgment asserted that Mr.

Edwards gave false answers regarding previous accidents and injuries in a recorded

statement given to the adjuster on November 2, 2012, following the alleged

accident on October 24, 2012, in order to obtain medical and wage benefits.

Southeastern further asserted that, in every step of the litigation, Mr. Edwards tried

to correct or justify misrepresentations made previously, but each effort was

proved false by the next recovery of evidence. Thus, there were additional

misrepresentations in his answers to interrogatories, and then in his deposition.

Southeastern also asserts misrepresentations in Mr. Edwards’ affidavit in opposing

the motion for summary judgment. The record on appeal bears out the assertions

made by Southeastern. The statements given by Mr. Edwards concerning his prior

medical history are contradicted by the significant evidence showing, not

inadvertent and inconsequential falsehoods, but willful and repeated

misrepresentations for the purpose of obtaining workers’ compensation benefits.

Recorded Statement

Adjuster Selynthia Tate called Mr. Edwards on the morning of

November 1, 2012, following the alleged accident reported to his employer on

October 24, 2012. The transcript of the adjuster’s call to Mr. Edwards reveals the

following denials:

Q Have you ever had any prior work-related injuries?
A No, ma’am. Never been injured on-the-job before.

6

Q Any prior motor vehicle accidents that you were injured
in?

A No, ma’am.

Q Do you have any medical conditions for which you take
daily medicines for such as diabetes, hypertension, high
cholesterol, gout, anything of that nature?

A No, ma’am.
Q Have you ever had any prior back problems?

A No, ma’am.

Q Any prior broken bones?

A No, ma’am. Never had a broken bone before.

Q Any prior surgeries?

A Besides appendix.

Responses to Interrogatories

In spite of the foregoing denials of any prior work-related injuries,

injuries from motor vehicle accidents, or broken bones, Mr. Edwards’ responses to

interrogatories listed minor injuries from two non-work-related automobile

accidents and one broken bone. Additionally, he listed seven work-related

automobile accidents with no injuries to himself:

1988 Automobile accident Houston – sore neck

2003 Fall from horse at home – broken collarbone

2011 Automobile accident – left knee injury
1995 Work-related automobile accident; employer omitted – no
injury

2008 Calcote Bus Lines – New Orleans, La. – no injury
____ Calcote Bus Lines – Branson, Mo. – no injury

2011 Calcote Bus Lines – Kansas City, Mo. – no injury

____ Lott Oil Company – Many, La. – no injury

7

2006 Lott Oil Company – Rosepine, La. – no injury
____ Jefferson Davis Sheriff’s Office – no injury

Only two injuries were admitted in the nine automobile accidents listed: (1) a

“sore neck” from an automobile injury in Houston in 1988; and (2) a left knee

injury in an automobile accident in 2011.

Adjuster’s Index Search Results

The adjuster, Ms. Tate, testified by deposition that she received the

results of an index search on November 26, 2012.

The index search (ISO) revealed a December 27, 1998 accident while

Mr. Edwards was working as a bus driver for Kerrville Bus Company. The

insurance file shows that Mr. Edwards sustained injuries to his neck and shoulders

and a sprain/strain to his lower back. He was off work and received workers’

compensation benefits for approximately six weeks and settled a third party claim

against the other driver for over $8,000.00. The existence of automobile accident

injuries and work-related injuries were both categorically denied in his recorded

statement. In his deposition, as shown below, Mr. Edwards will specifically deny

an accident while working for Kerrville, will deny work-related injuries, and will

deny receiving workers’ compensation benefits at any time prior to the subject

accident.

Significantly, the search revealed a February 27, 2012 personal

automobile accident, occurring just eight months before the subject accident on

October 24, 2012. Mr. Edwards was treated at American Legion Hospital in

Crowley for injuries to his lumbar spine. Mr. Edwards’ ex-wife testified by

affidavit that Mr. Edwards sustained low back injuries in a February 27, 2012

8

accident and missed work with FedEx. In his recorded statement, Mr. Edwards

denied that he had sustained any injuries from automobile accidents and denied

that he had any prior problems with his back.

The search further revealed a February 7, 2005 commercial

automobile accident causing injuries to Mr. Edwards’ wrist, heal, and neck. This

accident was not listed in his interrogatory responses or mentioned in his

deposition.

Also revealed in the search was a November 26, 1993 commercial

automobile accident in Jennings, Louisiana. A specific bodily injury was not

shown. This accident was not listed in the interrogatory responses.

Alexandria VA Hospital Records for October 23, 2012

Mr. Edwards’ records from the Alexandria VA Health Care System

(Alexandria VA) for October 23, 2012, the day before the subject accident, reveal

that Mr. Edwards was treated as a walk-in with complaints of sudden onset of low

back pain that began six days before the subject accident. He reported right flank

and low back pain radiating into his right leg, with a pain level of eight over ten

that was unrelieved by Tylenol or Ibuprophen. The progress notes state that the

patient has a history of back pain, a kidney stone in 2000, and a hernia in 2004.5

The notes state “acute on chronic back pain.” Toradol and Etodolac were ordered,

5
The Alexandria VA records introduced as evidence comprise 206 pages and appear to
cover treatment from December, 1994, through August, 2013, almost twenty years. Each
reference to these records is to the entire 206-page range, not to specific page numbers.
Additionally, the 206 pages appear to have been shuffled like a deck of cards, with the pertinent
complaints and treatments scattered helter-skelter throughout the entire 206 pages. In studying
these records, we find that low back pain was a complaint in 2004; some pages state that no
hernia was found in 2004; the amount of pain was unexplained; neuromuscular problems were
suspected; naproxen was one of the medications given; a provisional diagnosis of lumbago was
listed at one point and low back pain at another; and a prosthetic lumbar support was given.

9

as well as a KUB to rule out kidney stones. During the pain assessment, Mr.

Edwards described right low back pain radiating down into his right leg and right

groin area,6 as a constant, burning, cramping spasm pain that had gotten worse

within the last twenty-four hours. Mr. Edwards received an injection of thirty

milligrams of Ketrolac which reduced his pain level from eight to five before he

left the clinic.

Mr. Edwards’ Deposition

In his deposition, Mr. Edwards made numerous false and relevant

assertions that belie information given above or revealed below. He continued to

deny all work-related injuries, except to now admit that he sustained a bruised knee

in the patrol car accident when he was with the Jefferson Davis Sheriff’s Office.

He specifically denied any job-related accidents or injuries while working for

Kerrville Bus Company; and, he denied ever receiving workers’ compensation

benefits before the subject accident. While this 1998 accident occurred fourteen

years before the subject accident, it is not inconsequential because it was a work-

related accident wherein he sustained injuries to his neck and shoulders and a

sprain/strain to his lower back. He was off work for six weeks and received

workers’ compensation benefits, all of which he denied. He continued to deny low

back and neck injuries, or pain, or treatment, prior to the subject accident, except

for the neck sprain in Houston in the late 1980s.

In his deposition, Mr. Edwards admitted to the February, 2012 non-

work-related accident wherein he rear-ended a car on the way to work at FedEx.

He stated that he went to the Crowley hospital by ambulance for his knee, which

6
Groin pain was also listed in at least one of the medical records for the subject accident.

10

had slammed against the dashboard, and that he was diagnosed with a bruised

knee. He specifically denied that he sustained any injuries to his back or to his

neck in this accident. This was the February 27, 2012 accident revealed in the

adjuster’s ISO search above, with low-back injury confirmed by affidavit of Mr.

Edwards’ ex-wife. Medical records from Crowley’s American Legion Hospital

show that Mr. Edward’s chief complaint was low back pain from a motor vehicle

accident. He was diagnosed with lumbar sprain/strain and prescribed

Hydrocodone and Acetaminophen for pain. Pursuant to x-rays, the radiologist

reported grossly intact vertebral body height and alignment but disc space

narrowing, osteophyte formation, and facet hypertrophic changes. His impressions

were: (1) no acute osseous defect identified; and (2) lumbar spondylosis. Yet, Mr.

Edwards specifically testified that he had never been diagnosed with a

degenerative condition of his low back or his neck. He testified that, except for the

Houston accident in the late 80s he had never received treatment to his neck or

back to “any degree whatsoever.”

He further testified that the only work missed for an injury in the past

were the three days he missed at FedEx following his “knee” injury in February,

2012. Mr. Edwards’ repeated denial of back injuries resulting from the February

27, 2012 accident is particularly relevant because this accident occurred just

months before the subject accident and involved his low back.

Of further import, Mr. Edwards testified that his hospital treatment in

the last ten years included diabetic care at the local Jennings VA hospital, pursuant

to a diagnosis of diabetes in 2006. He stated that he had gone there a day or two

before the subject accident for pain in his side, wherein he was x-rayed for kidney

stones, and none were found. He did not discuss the same-day visit on October 23,

11

2012, to the Alexandria VA for back pain the day before the accident. These

medical records are fully discussed above.

Less significant, but notable because of the volume of omissions, Mr.

Edwards admitted to suing for the sore neck in the 1980s and for damages to his

vehicle in an accident with an eighteen-wheeler in Jennings in the early 1990s.

This Jennings accident was not listed in his interrogatory responses. It may

correlate with the November, 1993 commercial automobile accident listed in the

ISO report wherein no body part was given. Additionally, for the first time, Mr.

Edwards also admitted to an accident in Lake Charles in the early 1990s while

working for Louisiana Tank, an employer who was not listed among the other

twelve employers shown in his interrogatory responses.

At the end of his deposition, Mr. Edwards stated that the discrepancies

between his recorded statement and his interrogatory responses were because he

thought the adjuster taking the statement was asking only about workers’

compensation or on-the-job accidents. He would later assert that he was awakened

by the adjuster’s call at 7:30 in the morning and gave inaccurate information

because he had taken pain medication the night before.

Mr. Edwards’ Affidavit

After Southeastern filed its motion for summary judgment, Mr.

Edwards filed an opposition attaching his own affidavit, averring that any

erroneous information was inadvertent and inconsequential. He stated that he had

never had a “significant” or “severe” injury to his lower back before the subject

accident. He then admitted to “normal injuries resulting from accidents” but stated

that he had never been diagnosed with a collapsed disc, nor had he ever been seen

12

by an orthopedic surgeon for back pain. However, as pointed out by Southeastern,

Mr. Edwards had two previous accidents wherein he injured his back and was

transported by ambulance to the hospital, one in 1998 and one in 2012. He had

denied both. Moreover, he had a third incident of back pain reported at the

Alexandria VA Hospital the day before the subject accident, which he had also

denied, wherein he had been suffering for six days.

In the 1998 accident, where both drivers were taken to Baton Rouge

General, Mr. Edwards reported going seventy miles an hour when he hit a car

changing lanes, ran down an embankment, landed in the trees, and had $3,000.00

worth of damages to his vehicle. The other driver also landed in the trees, suffered

two broken arms, and sustained back and neck injuries. The driver’s father, a

passenger, was hospitalized; and one passenger was deceased at the time the proof

of loss was filed. It is difficult to imagine that Mr. Edwards forgot such an

accident. Following this accident, for which he lost six weeks of work, Mr.

Edwards was treated by Dr. Ray Boyer who referred him to Dr. Gregory Gidman,

an orthopedist in Lafayette. There, three weeks after the accident, Dr. Gidman

gave him an injection of anti-inflammatory medication, Darvocet and Soma, and

sent him to physical therapy. He subsequently saw a chiropractor as well. Thus,

Mr. Edwards’ affidavit misrepresents “normal” injuries and conditions of his lower

back and neck suffered prior to the subject accident.

Statements to Physicians

In addition to falsely denying previous injuries, events, and treatment

regarding his neck and back in his recorded statement, his interrogatory responses,

and his deposition, Mr. Edwards denied these events to the physicians who treated

13

him following the accident under consideration. On October, 25, 2012, Mr.

Edwards went to the emergency room at Baton Rouge General Hospital, where he

was diagnosed with lumbar region sprain and lumbago.7 At that time he reported

“no history of previous renal stones or kidney infections,” and “no significant

previous back history.” Two days before, however, on October 23, he reported

back pain for six days to the Alexandria VA and said he was tested for kidney

stones there because of his previous kidney stones in 2000. On November 1, 2012,

Mr. Edwards saw Dr. Adam Kennedy and denied previous problems with his

lumbar spine. On December 19, 2012, he saw Dr. Neil Romero and denied back or

leg symptoms prior to the subject accident on October 24, 2012.

La.R.S. 23:1208 Criteria

As stated in Resweber, the only criteria for forfeiture of benefits under

La.R.S. 23:1208 are (1) a false statement or representation, (2) made willfully, and

(3) for the purpose of obtaining benefits. Based upon the foregoing, Mr. Edwards

repeatedly and willfully gave false statements regarding his medical history, and

the significant evidence is more than sufficient to show that these

misrepresentations made after the alleged accident on October 24, 2012, were

made for the purpose of obtaining workers’ compensation benefits.

The facts in this case are similar to the facts in Resweber. There, the

evidence showed that Resweber was treated by an orthopedist for his alleged on-

the-job injury in 1991 and was diagnosed with herniated discs at L4-5 and L5-6.

The insurer began paying benefits, then filed a disputed claim. The investigator

took a recorded statement, asking Resweber about prior injuries and specifically

7
We note that lumbago was one of the provisional diagnoses reported in the Alexandria
VA in 2004.

14

about sports related injuries, but he denied ever having any back injury other than a

pulled muscle. In the medical history given to his doctor, the claimant indicated

that he had been healthy, denied prior serious medical problems, and denied having

low back pain with lower extremity symptoms prior to the alleged accident.

Evidence, however, contradicted those assertions and revealed that

Resweber had reported low back pain due to weightlifting in 1988, and his

physician suspected a herniated disc. In 1989, he saw another physician for pain in

his low back and legs, and the second physician’s impression was lumbar disc and

radiculopathy, likely at L4-5; he suggested conservative treatment and, if pain

persisted, an MRI. The OWC rejected arguments that the claimant did not make

willful misrepresentations because “[m]aybe he just didn’t remember,” and found

that all criteria of La.R.S. 23:1208 had been met. Resweber, 660 So.2d at 15. The

Louisiana Supreme Court reversed this court and reinstated the OWC judgment.

Summary Judgment

Mr. Edwards has argued that summary judgment should not be

granted when a determination of willful intent is required. However, the

jurisprudence holds that a claim under the statute governing forfeiture of benefits

for misrepresentations in relation to a claim for workers’ compensation benefits is

appropriate for resolution by way of the summary judgment procedure as long as

there is no genuine issue as to the three criteria of La.R.S. 23:1208. Bibins v. St.

Francis Cabrini Hosp., 00-133 (La.App. 3 Cir. 6/7/00), 768 So.2d 102, writ

denied, 00-3015 (La. 12/15/00), 777 So.2d 1235; Louisiana-I Gaming v. Rogers,

10-1050 (La.App. 5 Cir. 9/27/11), 76 So.3d 81, writ denied, 11-2789 (La. 2/17/12),

82 So.3d 291; Caye v. Slidell Travel Ctr., 02-208 (La.App. 1 Cir. 12/31/02), 837

15

So.2d 144, writ denied, 03-338 (La. 4/21/03), 841 So.2d 797. “A genuine issue is

one as to which reasonable persons could disagree; if reasonable persons could

reach only one conclusion, there is no need for trial on that issue and summary

judgment is appropriate.” Hines v. Garrett, 04-806, p. 1 (La. 6/25/04), 876 So.2d

764, 765-66).

When requesting summary judgment under the relevant law of

La.R.S. 23:1208, the mover must provide sufficient, supporting, conclusive

evidence of its three criteria, and then the non-mover must set forth specific facts,

showing that there is a genuine issue of material fact in dispute for trial. Bibins v.

St. Francis Cabrini Hosp., 768 So.2d 102. A non-movant’s mere allegation does

not create a genuine issue of material fact so as to preclude summary judgment.

Id.; La.Code Civ.P. art. 967.

Here, the record contains six volumes containing almost 1300 pages

of documentation, plus a box of exhibits. The evidence overwhelmingly shows

prior accidents, injuries, pain, and treatment involving Mr. Edwards’ low back and

neck, which he repeatedly denied. The repeated false statements,

misrepresentations, and omissions were made in relation to, and after he reported

to his employer, a job-related injury on October 24, 2012. This evidence, pursuant

to Resweber, shows that Mr. Edwards made the false statements willfully in order

to obtain workers’ compensation benefits, meeting all three criteria of La.R.S.

23:1208. The final admissions in his affidavit that his previous low back injuries

were only normal, not significant, and that he inadvertently provided

inconsequential misstatements, do not create genuine issues of material fact to be

resolved by a trial on the merits, pursuant to Bibins, Rogers, and Caye. Thus, we

opine that reasonable people could only conclude that he willfully made

16

misrepresentations in order to obtain workers’ compensation benefits, and

summary judgment was properly granted.

Motion for New Trial

While Mr. Edwards’ appeal did not address the motion for new trial,

we note that the argument at the new trial hearing consisted of an assertion by his

attorneys that there was evidence now in their possession that would have

impacted the judge’s decision on the summary judgment. They did not describe or

present such evidence, even though they had been on the case for five months

when the hearing was held. Their only other argument was that if Mr. Edwards

had been properly prepared for his deposition by his first attorney, his deposition

responses would have been different. These arguments do not satisfy the

requirements for granting a new trial under La.Code Civ.P. arts. 1972 and 1973.

Restitution

Southeastern argues that it is entitled to restitution for the benefits

paid to Mr. Edwards. Under La.R.S. 23:1208(D), restitution may be ordered for

payments made before the employer became aware of the claimant’s fraudulent

conduct. Thus, restitution is discretionary. Blane Devillier Trucking, Inc. v.

Authement, 03-590 (La.App. 3 Cir. 11/5/03), 858 So.2d 795; Rhone v. Boh Bros.,

01-270 (La.App. 4 Cir. 12/12/01), 804 So.2d 764. Here, the OWC did not address

the issue of restitution, though it was requested by Southeastern in its motion for

summary judgment. Such an omission by a trial court’s judgment is considered a

denial of the relief requested, Hebert v. Shelton, 08-1275 (La.App. 3 Cir. 6/3/09),

11 So.3d 1197.

17

We note that the injury claimed here was reported by Mr. Edwards as

a probable pulled muscle the day it occurred, and the first denials of previous

injuries or conditions occurred with the recorded statement on November 2, 2012.

The first payment to Mr. Edwards was dated November 21, 2012, and the adjuster

indicated that she received the first ISO results, “hits” showing other back and

neck injuries, on November 26, 2012. Thus, the actual period between the first

benefit paid and the first awareness of possible fraud was six days. We further

note that Mr. Edwards indicated that he used his insurance card to pay for some of

the medical expenses, and he paid premiums for his group insurance. Thus, it

appears that the payments made by Southeastern’s workers’ compensation carrier,

during the pertinent restitution period, were minimal. In affirming a denial of

restitution, this court in Authement, 858 So.2d 795, pointed out that the employee

had not worked since the accident, and therefore had no income with which to pay

for medical services. Similarly here, we find no error or abuse of discretion in the

trial court’s denial of restitution. Thus, we affirm the denial.

V.

CONCLUSION

Based upon the foregoing analyses, we find that Southeastern met its

burden of proof under La.R.S. 23:1208, establishing that Mr. Edwards willfully

made false statements and representations regarding previous low back injuries,

conditions, and treatment, for the purpose of obtaining workers’ compensation

benefits. We further find that Mr. Edwards failed to present evidence of a genuine

issue of material fact which could show that he did not make false representations

for the purpose of obtaining workers’ compensation benefits. Accordingly, we

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find no error on the part of the trial court in granting summary judgment to

Southeastern Freight Lines, Inc. Finally, we find that the trial court did not abuse

its discretion in declining to grant restitution to Southeastern Freight Lines, Inc.

Thus, the trial court’s judgment is affirmed in every respect. The

plaintiff, Mark Edwards, is cast with costs for this appeal.

AFFIRMED.

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