Karen Weems v. Electric Ins. Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-854

KAREN WEEMS

VERSUS

ELECTRIC INS. CO., ET AL.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 2
PARISH OF RAPIDES, NO. 14-02187
JAMES L. BRADDOCK, WORKERS COMPENSATION JUDGE

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DAVID KENT SAVOIE
JUDGE

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Court composed of Marc T. Amy, Billy H. Ezell, and David Kent Savoie, Judges.

AFFIRMED.

Bradley P. Naccari
Juge, Napolitano, Guilbeau, Ruli & Frieman
330 North New Hampshire Street
Covington, LA 70433
(504) 831-7270
COUNSEL FOR DEFENDANTS/APPELLEES:
GE Oil & Gas, Inc.
Electric Insurance Company

LaShonda G. Derouen
Attorney at Law
405 West Main Street
Post Office Box 4707
Lafayette, LA 70502
(337) 237-4300
COUNSEL FOR PLAINTIFF/APPELLANT:
Karen Weems

SAVOIE, Judge.

The Plaintiff, Karen Weems (Weems), appeals the judgment of the Workers’

Compensation Judge (WCJ) granting the Motion for Summary Judgment filed by

GE Oil & Gas (GE) and Electric Insurance Company (Electric) and dismissing

Weems’s pending Workers’ Compensation Form 1008 Disputed Claim for

Compensation (1008 Claim) with prejudice. The WCJ found that Weems

violated La.R.S. 23:1208 by fraudulently and willfully misrepresenting facts in

order to obtain benefits. Due to this violation, the WCJ found that Weems

forfeited her workers’ compensation benefits, ordered her to pay restitution under

La.R.S. 23:1208(D), and dismissed her 1008 Claim. For the following reasons, we

affirm.

FACTS AND PROCEDURAL HISTORY

On January 14, 2014, Weems, while employed by GE in its shipping

department, was involved in a workplace accident. She injured her neck using a

nail gun in the course of building a shipping crate. Defendants accepted her claim

for workers’ compensation benefits and paid her a total of $19,467.15 in medical

benefits and $22,717.46 in indemnity benefits through November 12, 2014.

Weems later complained that her lower back was injured as a result of the

workplace accident, which GE contested. The denial of the claim for her back

injury was the impetus for Weems filing the 1008 Claim form.

Weems filed a 1008 Claim on April 4, 2014, alleging back injury as a result

of the January 14, 2014 accident. After some initial filings by both parties, GE and

Electric filed a Supplemental Answer to Disputed Claim for Compensation on

September 18, 2014, as well as a Reconventional Demand. The supplemental

answer alleges: (1) Weems withheld information from them regarding prior

treatment for neck and back pain; (2) she withheld the same information from her

treating physicians; and (3) she made willful misrepresentations concerning her

treatment for back and neck pain prior to her job accident for the purpose of

obtaining workers’ compensation benefits. The Reconventional Demand reiterates

the claims made in the supplemental answer and, specifically, asserts a claim for

fraud under La.R.S. 23:1208. The demand also requests restitution for the cost of

indemnity benefits, the cost of medical benefits, medical case management,

transportation expenses, and costs of investigation and litigation. It further alleges

that Weems is subject to criminal fines and civil penalties in accordance with

La.R.S. 23:1208.

On March 27, 2015, GE and Electric filed a Motion for Summary Judgment

based on the claims found in the supplemental answer and the reconventional

demand, asking the court to find Weems in violation of La.R.S. 23:1208, ordering

her to pay restitution, and dismissing her 1008 Claim. After a hearing May 5,

2015, the WCJ granted the motion for summary judgment, ruling that Weems

violated La.R.S. 23:1208; that she had forfeited all rights to workers’

compensation benefits; that she must pay restitution to the defendants in the

amount of $42,184.41; and dismissing Weems’s 1008 claim. The WCJ did not

impose civil penalties. Judgment was signed May 22, 2015. It is from this

judgment that Weems appeals.

LAW AND DISCUSSION

Standard of Review

The standard of review on a motion for summary judgment for an appellate

court is as follows:

An appellate court reviews a trial court’s grant of summary
judgment de novo. Covington v. McNeese State Univ., 08–505
(La.App. 3 Cir. 11/5/08), 996 So.2d 667, writ denied, 09–69
(La.3/6/09), 3 So.3d 491. “The summary judgment procedure is
designed to secure the just, speedy, and inexpensive determination of
every action....The procedure is favored and shall be construed to
accomplish these ends.” La.Code Civ.P. art. 966(A)(2). A motion for
summary judgment “shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions, together with

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the affidavits, if any, admitted for the purposes of
the motion for summary judgment, show that there is no genuine issue
as to material fact, and that mover is entitled to judgment as a matter
of law.” La.Code Civ.P. art. 966(B)(2). Generally, the movant bears
the burden of proof on the motion. La.Code Civ.P. art. 966(C)(2).

Hunter v. Lafayette Consol. Gov’t, 15-401, p. 2 (La.App. 3 Cir. 11/4/15), 177

So.3d 815, 818.

Law and Discussion

In her appeal, Weems alleges the WCJ erred in granting Defendants’ Motion

for Summary Judgment and in finding that she violated La.R.S. 23:1208.

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 Louisiana Supreme Court has held

that “[t]he only requirements for forfeiture of benefits under Section 1208 are 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. “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.” Edwards v. Southeastern Freight

Lines, Inc., 14-871, p. 4 (La.App. 3 Cir. 2/4/15), 158 So.3d 227, 231 (citing

Resweber, 660 So.2d 7).

The issue of willful intent found in La.R.S. 23:1208 is properly resolved via

summary judgment as long as no genuine issue of material fact exists. Id.

“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.” Luther v. IOM Co. LLC, 13-

0353, p. 5 (La. 10/15/13), 130 So.3d 817, 822.

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Weems’s treatment for neck and back pain is extensive - dating back to

1999. In February 1999, Weems presented to the LSU Family Practice Center

complaining of low back pain that began six months prior. She complained that

her pain level was nine out of ten. She returned to the LSU Family Practice Center

in May, again with back complaints. On February 6, 2006, she sought help for her

low back pain after lifting heavy furniture. In February 2007, her low back pain

caused her to seek therapy at Aguilus Health. In July 2008 she complained of a

“lightning bolt like shock [that] extend[ed] down to [her] legs.” The complaints

continued through 2012 and 2013, with Weems having lumbar and cervical x-rays

performed because of her neck and back pain. Less than four months before the

present accident, she sought treatment for neck pain after lifting heavy equipment.

The medical records from the University Health System show a history of “chronic

back pain” from 2011 through 2014.

Despite Weems’s long struggle with neck and back pain, the record shows

that she failed to disclose her struggles with the physicians who treated her after

the workplace accident. Weems denied prior neck injuries or problems to Dr.

Webb, the physician who saw her on the day of the accident. Similarly, she denied

any “prior similar complaints” when she was seen in the emergency room of

Rapides Regional Medical Center. When she began treating with Dr. Juneau, her

choice of neurosurgeon, she reported low back pain for the first time in addition to

the neck pain she experienced as a result of the accident. Dr. Juneau indicated that

she “never had any problems with neck pain prior to this on the job accident that

occurred on January 14, 2014.” Weems saw Dr. Smith for a second medical

opinion. His records also show that she denied having any symptoms in her leg or

low back or in the cervical area prior to the accident, although she did report one

previous episode of back pain when she was approximately thirty-eight years of

age, which she stated was resolved with no further symptoms.

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In formal discovery, Weems denied treatment for prior neck pain other than

treatment for thyroid cancer. She only admitted to treatment for sciatic nerve pain

in her back in 2004. During her deposition, she stated that she had no back pain

after 2003 or 2004. She was asked specifically whether, other than the time she

saw a chiropractor in 2003 and 2004, she had any kind of back treatment, and she

answered that was the only time she saw a doctor.

Weems’s argument centers on the effect her medications had on her

memory. She was prescribed Vicodin and Caroprodol/Soma because of the

accident in addition to taking other medications, namely, Synthroid, Xanax,

Vesicare and Estroven. Weems contends that, if she did not disclose any of the

requested information, it was a side effect of medications rather than any bid on

her part to conceal hear medical history. This argument is not presented with any

testimonial or documentary evidence that supports it. Weems did not present the

testimony of any doctor or medical professional which would give credence to her

position.

In addition, Weems did not file an opposition and there is no evidence on her

behalf whatsoever filed in the record in connection with the summary judgment.

There is not even a self-serving affidavit on which she can rely. As such, willful

intent is easily inferred from the record presented. See 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.

Based on the foregoing, we find no genuine issues of material fact exist as to

whether Weems made willful misrepresentations in order to obtain workers’

compensation benefits. Thus, summary judgment was properly granted.

DECREE

For the aforementioned reasons, we find no error in the trial court’s ruling

granting summary judgment in favor of GE Oil and Gas and Electric Insurance

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Company and dismissing Karen Weems’s claim. Karen Weems is cast with all

costs of this appeal.

AFFIRMED.

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