Ellis Hargrave v. Elier Diaz

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-189

ELLIS HARGRAVE

VERSUS

ELIER DIAZ

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 4
PARISH OF LAFAYETTE, NO. 13-03581
ADAM C. JOHNSON, WORKERS’ COMPENSATION JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Marc T. Amy, Judges.

AFFIRMED.

Stephen Winston Glusman
Glusman, Broyles & Glusman
P. O. Box 2711
Baton Rouge, LA 70821
(225) 387-5551
COUNSEL FOR DEFENDANT/APPELLEE:
Elier Diaz

Michael Benny Miller
Miller & Associates
P. O. Drawer 1630
Crowley, LA 70527-1630
(337) 785-9500
COUNSEL FOR PLAINTIFF/APPELLANT:
Ellis Hargrave

Sylvia M. Fordice
Asst. Attorney General
556 Jefferson St., 4th Fl
Lafayette, La 70501
(337) 262-1700
COUNSEL FOR DEFENDANT/APPELLEE:
State of Louisiana

SAUNDERS, Judge.

This appeal arises from a workers’ compensation dispute. Ellis Hargrave

(hereinafter “Appellant”) appeals the judgment of the workers’ compensation court

dismissing his disputed claim for compensation, in which he asserted the

vocational rehabilitation counselor violated La.R.S. 23:1208 and that the

vocational rehabilitation counselor should be removed.

FACTS AND PROCEDURAL HISTORY

Appellant was injured on June 25, 2005 in the course and scope of his

employment with the State of Louisiana, through the Department of Transportation

and Development (hereinafter “DOTD”). Following lengthy litigation, DOTD

began providing rehabilitation services pursuant to La.R.S. 23:1226(A). Originally,

DOTD contracted with Thomas and Associates to provide vocational rehabilitation

counseling services to Appellant. The original counselor terminated his

employment with Thomas and Associates; thereafter, a second counselor employed

by Thomas and Associates was assigned. DOTD then discontinued its relationship

with Thomas and Associates and reassigned the case to Elier A. Diaz (hereinafter

“Diaz”). Diaz sent several letters to Appellant’s counsel requesting to provide

vocational rehabilitation services to Appellant.

By letter dated July 8, 2009, Appellant’s counsel declined to permit Diaz to

provide rehabilitation counseling services to Appellant unless Diaz agreed to

comply with the following conditions:

(A) That your meetings with my client be held at my office at
Crowley, Louisiana.

(B) That you agree not to question my client as to any facts
other than those facts necessary to provide vocational
rehabilitation under LSA R.S. 23:1226.

(C) That I will be simultaneously copied on all documents sent
to anyone concerning my client. This is to include

correspondence, job analyses, and all appendices to your
correspondence.

(D) That I will be a party to all oral conversations between you
and the employer, insurer or their representative or
attorney.

(E) That you will not subject my client to jobs which are
inappropriate.

(F) That you will upon request provide your entire file for
copying or provide a copy of your entire file without
charge.

(G) That you understand that although you were selected by
and are paid by my clients’ employer/insurer, you are
dedicated to finding a job for my client which client can
obtain and also continue to perform.

(H) That the purpose of the vocational rehabilitation you
provide is for the benefit of my client, who is also your
client.

(I) No other person has provided vocational rehabilitation in
this case.

(J) That you or your firm has no connection, directly or
indirectly, with my client’s employer or insurer or their
agents, except that you were chosen and paid by the
employer/insurer to provide vocational rehabilitation in this
case.

(emphasis original).

The letter further provided that “Your setting up and appearing for the conference

with my client verifies that you are in agreement with the foregoing requests that

rehabilitation services will be provided in accordance thereof.” These conditions

were essentially identical to the ones found not manifestly erroneous by this court

in Crain Brothers, Inc. v. Richard, 02–1342 (La.App. 3 Cir. 4/9/03), 842 So.2d 523.

By order of the Office of Workers’ Compensation (hereinafter “OWC”) on

July 20, 2009, Diaz was appointed to provide vocational rehabilitation services to

Appellant. Thereafter, by letter dated July 28, 2009, Diaz informed counsel for

Appellant that “[he] practice[d] vocational rehabilitation counseling strictly based
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upon the ethics and standards of the license of [his] profession in the State of

Louisiana in conjunction with Section 1226 of the Workers’ Compensation Act

with regard to workers’ compensation cases. We are not agreeable to any other

standards or conditions with regard to the practice of our profession.” Diaz made

attempts to meet with Appellant; an initial evaluation appointment was scheduled

to occur on October 26, 2009, which occurred on the scheduled day. Appellant,

Diaz, and counsel for Appellant were present.

Eventually, DOTD filed an expedited rule to show cause why an order

should not be issued directing Appellant to cooperate with Diaz or be subject to a

reduction of his workers’ compensation benefits. Appellant continued to insist that

Diaz provide counseling services in accordance with the conditions outlined in the

July 8, 2009 letter. At a hearing on the rule, the workers’ compensation judge

found that all ten conditions were reasonable and that the vocational rehabilitation

was to be conducted pursuant to the terms and conditions. DOTD appealed and a

majority of this court affirmed the ruling, explaining “there is simply nothing

included in the record which indicates that the WCJ committed manifest error in

determining these conditions to be reasonable under the facts of this case,” but

ordered condition (I) stricken, noting that it could not be followed because two

other vocational counselors had either provided or attempted to provide vocational

rehabilitation services. Hargrave v. State, 11-836, p. 4 (La.App. 3 Cir. 12/21/11),

80 So.3d 1198, 1201. We further explained “‘that La.R.S. 23:1226 does not

restrict the worker’s [sic] compensation judge from requiring a vocational

counselor to agree to certain terms,’” but that the conditions were neither

mandatory nor should they be deemed necessary in every case. Id. (quoting

Interiano v. Fernando Pastrana Constr., 04-430, p. 4 (La.App. 5 Cir. 10/26/04),

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887 So.2d 547, 549). DOTD further appealed to the supreme court, which

reversed the judgment of this court, explaining:

there is no requirement in La.Rev.Stat. 23:1226 that a vocational
rehabilitation counselor must agree to certain conditions prior to
providing vocational rehabilitation services. Certainly absent any
showing by the claimant that there is an actual dispute as to the
provision of services or the quality thereof, requiring the counselor to
abide by such conditions, even if intended as a prophylactic measure,
necessarily resorts to speculation and conjecture as to the future
actions of the counselor.

Hargrave v. State, 12-0341, p. 13-14 (La. 10/16/12), 100 So.3d 786, 793. The

supreme court held that “the hearing officer erred in imposing these conditions

without an evidentiary showing that any of the conditions were reasonably

necessary to resolve or rectify a ‘dispute. . . concerning the work of the vocational

counselor[.]’” Id.

After remand, on April 17, 2013, Appellant filed a disputed claim for

compensation, alleging Diaz violated the provisions of La.R.S. 23:1208 by having

a meeting with DOTD without allowing Appellant or his counsel to attend. On the

same day, he filed a motion to remove Diaz as vocational counselor, alleging

vocational rehabilitation services were provided in violation of the laws of

workers’ compensation and the ethical rules of the profession, again asserting that

Diaz held a meeting with DOTD without allowing Appellant or his counsel to

participate. On October 30, 2013, Appellant amended his disputed claim for

compensation, alleging Diaz “failed to follow [La.R.S.] 23:1226 and his Ethical

Rules which should result in his dismissal from providing vocational services in

this case” and that he violated La.R.S. 23:1208 by “misstating the agreement for

the conference” with DOTD and “making misstatements in his deposition.” It is

from this disputed claim that the instant appeal rises.

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ASSIGNMENTS OF ERROR

In his appeal, Appellant alleges the workers’ compensation judge erred in:

1. failing to allow Appellant to question Diaz regarding the Crain Brothers
conditions;
2. in failing to find that Diaz violated La.R.S. 23:1208; and

3. in failing to remove Diaz as vocational counselor for Appellant.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Appellant asserts that the trial court erred in

failing to allow him to question Diaz as to which conditions Diaz felt with which

he could comply and to which he had an objection. Appellant alleges that Diaz

testified he would not follow any of the conditions contained in the July 9, 2009

letter. He further asserts that because Appellant “had a right to participate and

make decisions in regard to the rehabilitation services and Mr. Diaz[,]” Diaz’s

testimony that he would not follow the conditions contained in the July 8, 2009

letter supports the conclusion that Diaz’s conduct was unreasonable and a violation

of the Code of Professional Ethics for Licensed Rehabilitation Counselors

(hereinafter “Code of Professional Ethics”). The evidence was proffered and

comprises part of the record. For the following reasons, we find this assignment of

error to lack merit.

“‘The decision to admit evidence into the record rests within the sound

discretion of the workers’ compensation judge and will not be reversed in the

absence of manifest error.’” Cent. Lumber Co. v. Duhon, 03-620, p. 2 (La.App. 3

Cir. 11/12/03), 860 So.2d 591, 593, writ denied, 04-0315 (La. 4/2/04), 869 So.2d

880 (quoting Jones v. Trendsetter Prod. Co., Inc., 97-299, p. 11 (La.App. 3 Cir.

2/25/98), 707 So.2d 1341, 1346, writ denied, 98-793 (La. 5/15/98), 719 So.2d 463).

“Evidence which is not relevant is not admissible.” La. Code Evid. art. 402.

Relevant evidence is any “evidence having any tendency to make the existence of
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any fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence.” La.Code Evid. art. 401.

Evidence pertaining to “which [conditions Diaz] felt that [he] could do and

which ones that [he]had an objection to” does not “[tend] to make the existence of

any fact that is of consequence. . . more probable or less probable.” La.Code Evid.

art. 401. Whether or not Diaz “felt” that he could comply with the conditions

contained in the July 8, 2009 letter does not tend to prove that he “failed to follow

[La.R.S.] 23:1226 and his Ethical Rules or that he violated La.R.S. 23:1208 by

making a willful false statement or misrepresentation, especially in light of the

supreme court’s finding that the conditions contained in the July 8, 2009 were

incorrectly imposed in the instant case. Accordingly, we find no abuse of

discretion in the ruling of the workers’ compensation judge.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, Appellant alleges the trial court erred in

failing to find Diaz violated La.R.S. 23:1208. We find this assignment of error to

also lack merit.

Louisiana Revised Statutes 23:1208(A) provides that: “It shall be unlawful

for any person, for the purpose of obtaining or defeating any benefit or payment

under the provisions of this Chapter, either for himself or for any other person, to

willfully make a false statement or representation.” “The statute is broadly worded

and encompasses any false statement or misrepresentation made to anyone when

made willfully or deliberately for the purpose of obtaining or defeating benefits.”

Lewis v. Temple Inland, 11-0729, p. 17 (La. App. 1 Cir. 11/9/11), 80 So. 3d 52, 63.

As we explained in Parrish v. Van-Tel Commc’ns, 07-454, p. 2 (La.App. 3 Cir.

10/10/07), 967 So.2d 592, 594:

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The above provision requires only “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”
before the forfeiture required by La.R.S. 23:1208 is applied. Resweber
v. Haroil Constr. Co., 94-2708, p. 7 (La.9/5/95), 660 So.2d 7, 12. A
workers’ compensation judge’s determination as to the existence of
the above factors will not be reversed on appeal absent manifest error.
Murphy v. Brookshire Grocery Co., 02-808 (La.App. 3 Cir. 12/11/02),
832 So.2d 1157.

Further, “‘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.’” Id. at 595 (quoting Rosell v.

ESCO, 549 So.2d 840, 844 (La.1989)).

In its oral ruling, the workers’ compensation court explained: “In assessing

Mr. Diaz’s testimony the Court observed his gestures, tone of voice, responses and

reactions to questions, and his overall demeanor. The Court makes a specific

finding that Mr. Diaz’s testimony is credible.” Thus, in order to reverse the trial

court, Appellant must show that the trial court’s finding that the above factors were

not present was manifestly erroneous or clearly wrong.

In brief, Appellant largely focuses on the “so-called ‘sham rehabilitation’

cases,” Hargrave, 100 So.3d at 790, alleging multiple times that the actions of

Diaz were to aid the employer. Although he cites little from the record identifying

precisely what statements were allegedly false, we glean from Appellant’s brief the

following.

Scheduled Meeting with DOTD Representative and Appellant’s Physician

First, Appellant asserts in brief that a conference was scheduled to occur on

February 27, 2013 with Lynn Dodge, a representative of DOTD, and with one of

Appellant’s physicians on July 8, 2010. These meetings did not go as planned.

Diaz testified that, on the day of the conference with Ms. Dodge, a family

emergency arose which prevented him from being physically present at the
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scheduled time. Thus, he coordinated with Ms. Dodge to have the conference take

place via telephone. Diaz explained that he understood that Appellant and his

attorney arrived for the conference and, upon discovering that it was to be

conducted by telephone, left. The telephone conference took place at the

scheduled time, but Diaz did not call Appellant’s counsel during the conference,

and counsel for Appellant did not participate. Diaz testified that he understood that

Appellant’s counsel was “angry,” which is why he did not call him during the

conference.

Regarding the meeting with Appellant’s physician, Diaz testified that he was

running late for the scheduled meeting, so he called the physician’s office to

inquire whether the physician would need to reschedule the conference. The

meeting was not rescheduled, despite Diaz’s tardiness. Diaz further testified that

when he arrived, he discovered that counsel for Appellant had cancelled the

meeting and left; thus, he did not proceed with the meeting with the physician,

although he did have a conversation with the physician’s staff. Although the

testimony makes clear that the parties have some difficulty proceeding with

scheduled meetings, Appellant fails to identify specifically what statement Diaz

made that was alleged to be false and to whom the allegedly false statement was

made.

Alleged Violation of Law

In further support of this assignment of error, Appellant alleges that Diaz

falsely stated that he followed the law. In support of this allegation, Appellant first

asserts that Diaz violated La.R.S. 23:1127, which requires that an employee be

given notice of any verbal communication or conference at least fifteen days in

advance and “shall be given the opportunity to attend or participate in the

communication or conference.” Appellant alleges a violation of this statute
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occurred when Diaz communicated with the physician’s staff without providing

notice to Appellant or giving him the opportunity to attend. We disagree. We note

that it was counsel for Appellant that unilaterally canceled the conference with the

physician. Had Appellant’s counsel not canceled the meeting and left, he would

have had ample opportunity to participate in the impromptu discussion with the

physician’s staff.

Appellant further alleges that Diaz violated the law by failing to follow the

conditions contained in the July 8, 2009 letter, as this court had, at the time, “held

that the vocational counselor was required to follow the conditions.” Appellant’s

construction of Crain Brothers is incorrect. This court did not require vocational

rehabilitation counselors to follow the conditions. Instead, we explained:

We have reviewed 23:1226 and find this provision when considered in
its entirety does not restrict the WCJ from exercising her inherent
power to require that a vocational counselor, selected pursuant to the
statute, act in accordance with the rules regulating his professional
conduct to assure his integrity, honesty and fair dealing in rendering
the services prescribed. We cannot say this conclusion was manifestly
erroneous, and affirm the decision of the trial court at appellants’ cost.

Crain Bros., 842 So. 2d at 525-26.

As Judge Cooks observed in Hargrave, 80 So.3d at 1201 (quoting Interiano,

887 So.2d at 549):

[w]e simply found “that La.R.S. 23:1226 does not restrict the
workers’ compensation judge from requiring a vocational counselor to
agree to certain terms” and we found no manifest error in the WCJ’s
finding that the conditions set forth by claimant’s counsel under those
circumstances were reasonable.

Moreover, our supreme court later determined that the conditions could not be

imposed without “an evidentiary hearing showing that any of the conditions were

reasonably necessary to resolve or rectify a ‘dispute. . . concerning the work of the

vocational counselor[.]’” Hargrave, 100 So.3d at 793. Finally, we note that

La.R.S. 23:1310.5(B) provides that “[t]he decision of the workers’ compensation
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judge shall be final unless an appeal is made to the appropriate circuit court of

appeal.” Thus, as DOTD timely appealed the order of the workers’ compensation

court requiring Diaz to comply with the conditions contained in the July 8, 2009

letter, that judgment was not final and it could not have been violated. Finally, we

note that Appellant again fails to specifically identify the particular statement made

by Diaz that is allegedly false.

Alleged Violation of Ethical Rules

Finally, Appellant asserts that Diaz falsely stated he would comply with

La.R.S. 23:1226, which requires such services to be provided by the counselor in

accordance with the Code of Professional Ethics. In support of this argument, he

asserts that Diaz violated multiple ethical rules. We find this assertion to lack

merit. First, the Louisiana Licensed Professional Vocational Rehabilitation

Counselors Board of Examiners Ethics Committee is the entity charged with

determining whether a licensed vocational rehabilitation counselor has committed

a violation of the Code of Professional Ethics. La.Admin Code. tit. 46, pt.

LXXXVI, §§ 1701-1703. There has been no such determination in this case.

Finally, we note that the only testimony presented in this case was that of

Diaz. His testimony was completely uncontroverted. Moreover, the workers’

compensation judge found him to be credible. We will not now reevaluate that

credibility determination. Parrish, 967 So.2d 592. We find no statements from

Diaz, or anyone else, except Appellant’s own conclusory assertions, to support his

claim of fraud in violation of La.R.S. 23:1208.

After reviewing the record herein, we find that the record supports the trial

court’s finding that Appellant failed to meet his burden of proving Diaz’s violation

of La.R.S. 23:1208. Thus, the trial court did not err in failing to find Diaz violated

La.R.S. 23:1208.
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ASSIGNMENT OF ERROR NUMBER THREE

In his final assignment of error, Appellant alleges the trial court erred in

failing to remove Diaz as vocational counselor for Appellant. We disagree.

In its oral ruling on the issue, the workers’ compensation judge stated, “the

Court finds that there has been no showing warranting the removal of Mr. Diaz as

vocational counselor.”

Although “an employer is not the only entity that may select a vocational

rehabilitation counselor,” Robert Sepulvado Logging, Inc. v. Sepulvado, 05-1630, p.

11 (La.App. 3 Cir. 5/31/06), 931 So.2d 528, 534 (explaining Batiste v. Capitol

Home Health, 96-799 (La.App. 3 Cir. 5/7/97), 699 So.2d 395 (workers’

compensation judge approved vocational counselor suggested by employee)),

having determined that the trial court did not err in concluding that Appellant

failed to meet his burden of proving Diaz violated La.R.S. 23:1208, we further find

that the trial court did not err in concluding that Appellant made no showing which

warranted the removal of Diaz as vocational counselor. Thus, we conclude that the

trial court did not err in failing to remove Diaz as vocational counselor.

CONCLUSION

For the foregoing reasons, the judgment of the workers’ compensation court

is affirmed in all respects. All costs of this appeal are assessed to Appellant.

AFFIRMED.

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