Luba Workers' Compensation v. Albert Dennis Babineaux

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-365

LUBA WORKERS’ COMPENSATION

VERSUS

ALBERT DENNIS BABINEAUX

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 04
PARISH OF LAFAYETTE, NO. 14-02390
SHARON MORROW, WORKERS’ COMPENSATION JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
Shannon J. Gremillion, Judges.

AFFIRMED.

David Russell Bankston
2701 Johnston Street – Suite 301
Lafayette, LA 70503
Telephone: (337) 232-1444
COUNSEL FOR:
Defendant/Appellee - Albert Dennis Babineaux

Eric J. Waltner
Allen & Gooch, A Law Corporation
P. O. Box 81129
Lafayette, LA 70598-1129
Telephone: (337) 291-1400
COUNSEL FOR:
Plaintiff/Appellant - LUBA Workers’ Compensation

THIBODEAUX, Chief Judge.

In this workers’ compensation matter, claimant Albert Dennis

Babineaux was adjudicated permanently and totally disabled. Thereafter, the

insurer, LUBA Workers’ Compensation (LUBA), filed a new dispute with the

Office of Workers’ Compensation, alleging Mr. Babineaux had a change in

condition and was no longer permanently and totally disabled. LUBA also alleged

that Mr. Babineaux had violated La.R.S. 23:1208 by working while receiving

indemnity benefits. The workers’ compensation judge (WCJ) denied LUBA’s

request for modification and found no fraud on the part of Mr. Babineaux. LUBA

now appeals that judgment. Finding no manifest error in the WCJ’s finding that

LUBA had not proven, by a preponderance of the evidence, a change in Mr.

Babineaux’s condition or a forfeiture of his benefits, we affirm.

I.

ISSUES

LUBA asks this court to decide:

(1) whether it was legal or manifest error not to hold
that claimant had a change in his condition
sufficient to modify the prior judgment proven by
a preponderance of the evidence;

(2) whether it was legal or manifest error to hold that
claimant was permanently and totally disabled by
clear and convincing evidence;

(3) whether it was legal or manifest error to hold that
claimant had not violated La.R.S. 23:1208.

II.

FACTS AND PROCEDURAL HISTORY

This matter arises out of an accident that occurred on June 14, 2000,

in the course and scope of Mr. Babineaux’s employment as a self-employed

electrical contractor with Dennis Babineaux Electrical Service (Babineaux

Electric). In December 2000, Mr. Babineaux underwent an anterior cervical

decompression and fusion surgery for the injury he sustained to his back. He was

awarded temporary total disability benefits from June 1, 2000, through March 28,

2002, and supplemental earnings benefits (SEBs) from March 28, 2002. On

August 6, 2010, after LUBA denied his demand to convert his indemnity benefits

to permanent and total disability (PTD) status, Mr. Babineaux filed a claim seeking

additional disability benefits based on his claim that he was permanently and

totally disabled. His SEBs were then terminated on November 30, 2010.

Following trial, the WCJ rendered judgment in favor of Mr.

Babineaux, finding him, by clear and convincing evidence, permanently and totally

disabled due, in part, to the permanent nerve damage and continued severe muscle

spasms directly related to his work injury as documented in his medical records.

The WCJ did not award any penalties or attorney’s fees. In Babineaux v. LUBA,

12-129 (La.App. 3 Cir. 6/6/12), 91 So.3d 1270, this court affirmed the WCJ’s

judgment.

On April 11, 2014, LUBA filed a new disputed claim for

compensation, wherein it alleged: “Claimant had a change of circumstances and is

no longer permanently and totally disabled such that the prior judgment needs to be

modified. Claimant has violated 23:1208 by receiving indemnity benefits and

working.” In his answer, Mr. Babineaux denied any change in circumstances and

2

admitted, in his pre-trial statement, that he “has continued to perform occasional

small electrical jobs” without pay or reimbursement, except for costs, that he was

doing “at the time he was adjudicated to be permanently and totally disabled.”

Through video surveillance, retail electrical supply account invoices,1

and various testimony, LUBA presented evidence that Mr. Babineaux’s supply

accounts have remained active since the accident and that he has continued to

engage in supervisory-type duties and performed some small electrical jobs on a

gratuitous basis. In his testimony, Mr. Babineaux admitted that he had spinal

surgery on September 8, 2011, which helped eliminate the pain and numbness in

his legs. He also testified that the last time he saw his neurosurgeon, Dr. Patrick A.

Juneau III, was on December 19, 2012, at which time he had no radicular pain, but

still had lower back pain. Mr. Babineaux acknowledged that his symptoms are

much better, although there are times when the symptoms are almost as bad as they

were before the surgery. He has received multiple injections from Dr. Matthew

Mitchell, a pain management specialist, which injections help his symptoms

significantly; however, he still has painful, immobilizing spasms for which he

seeks the treatment of Dr. Robert P. LeJeune, his chiropractor.

In his testimony, Mr. Babineaux also acknowledged that he continues

to drive the truck, with bins filled with electrical tools and materials, that he drove

when he was working; that he helped Donnie DeRouen fix a motor control unit in

2014; and that he supervises on occasion at Donnie DeRouen Electrical Services,

Inc.’s (DeRouen Electric) worksites. At those times, he testified that he has the

1
The certified records of Teche Electric Supply, LLC, Home Depot U.S.A., Inc., and HD
Supply Power Solutions, Ltd. (HD Supply) were introduced into evidence. However, only the
records of HD Supply are of any real significance herein given that they contain the majority of
transactions made since the 2011 trial. The activity in the other records primarily occurred prior
to 2011. The accounts, except for Home Depot, remained in the name of Babineaux Electric.

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authority to tell the employees what to do or not do. When asked about

surveillance video that showed him using a shovel to dig at one worksite, Mr.

Babineaux admitted that there were “young bucks” present who could have used

the shovel, but he was merely shifting sand in an effort to find where a pipe had

been damaged so to avoid further damage. Mr. Babineaux noted that, under his

doctors’ orders, he was not supposed to do any physical labor.

The surveillance videos captured Mr. Babineaux bending down to

pick up an ice chest, filling the ice chest, and loading it in his truck to bring along

with him to a worksite. It also captured him probing the ground with a metal rod

and then working with a shovel, traversing uneven terrain, walking with a box of

electrical equipment, and then bending down to look inside a hole. Also shown

was Mr. Babineaux building control panels over an eight hour timeframe with

Donnie DeRouen.

Timesheets were entered into the record reflecting some of the work

activities performed by Mr. Babineaux for DeRouen Electric, but Mr. Babineaux

testified that the work identified on those documents were not necessarily work

that he himself performed. Rather, he was merely making an accounting of what

work was performed at the worksite. He admitted that he was sometimes given

deer and fish and was allowed to fill his truck with fuel from DeRouen Electric’s

diesel tank.

Mr. Babineaux also testified to another time when he was called out to

a water treatment plant for the City of Abbeville to determine what was wrong

with the generator. He diagnosed the problem and instructed how to fix it. Mr.

Babineaux also went on jobs with his son and has continued to perform occasional

small electrical jobs without compensation for his church, his chiropractor, and

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Page Wire Rope and Slings, such as changing light fixtures and outlets, running

wire, or directing others on how to do so.

Michael L. DeRouen, the vice president of DeRouen Electric, testified

that Mr. Babineaux worked for the company for over twenty years before leaving

to go out on his own. Having left on good terms, Mr. Babineaux remained a close

family friend. Given their long-standing relationship, Mr. DeRouen recalled that

Mr. Babineaux came by a few years after his spinal cord injury and asked “if I

would have a problem if he would stop by some of the jobs to visit with the guys

and look over the electrical, which I said I did not have a problem with.” Aware of

Mr. Babineaux’s disability and that his company’s workers’ compensation insurer

would not cover Mr. Babineaux, Mr. DeRouen explained how he asked Mr.

Babineaux to do some supervisory-type activities so that Mr. DeRouen could go

bid out jobs: “Every now and then he would stay a while on the jobs advising my

guys on ways they could do the work quicker or easier. He was however informed

he was not allowed to do any physical work at all.” Testimony reveals that there

were five or six residential subdivisions where Mr. Babineaux went out and did

similar activities as were disclosed in the surveillance video. But Mr. DeRouen

explained that Mr. Babineaux was just helping out when he felt up to it and

performing a job that Mr. DeRouen would not pay anyone to do as it was basically

his job. The timesheets submitted by Mr. Babineaux merely reflected the work

performed at the worksite and were not a record of Mr. Babineaux’s activity.

Moreover, none of Mr. Babineaux’s time was ever billed to the customer, and he

never requested payment. The DeRouens, however, “would give him deer, fish,

and even fill up his truck with fuel.”

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In his deposition, William Seiler, a sales manager for HD Supply,

testified that he was familiar with Mr. Babineaux as are all of his salespeople. And

as for the active supply accounts, he explained that “for the little dollars that [Mr.

Babineaux] is doing, I really don’t know what he’s doing.” While Mr. Babineaux

never discussed the extent of his disability with him, Mr. Seiler testified that “you

could tell by the way he gets around[,]” explaining how Mr. Babineaux “looks like

he’s hurting to take every step.” He further described how Mr. Babineaux’s “knees

are bent at all times and he’s leaning over at probably ten degrees or something

like that.” Mr. Seiler also stated that Mr. Babineaux walks “like he’s 90” and that

he “could pass him backwards at one-third speed walking, he’s that slow.”2 Mr.

Babineaux testified that his retail purchases were mostly for other people, because

he mistakenly believed he received a company discount.

Regarding the medical evidence, Dr. Juneau’s notes from Mr.

Babineaux’s last visit on December 19, 2012, recorded:

Albert Dennis Babineaux is one year and three months
out from having undergone a lumbar decompressive
laminectomy with instrumented fusion at L4-5 and L5-
S1. . . . [X]-rays show good position of all six screws
and the rods. The two interbody cages are in good
position. He has excellent alignment of the lumbar spine
on the lateral views. Clinically, he has no radicular pain
down into the legs. He does have some lower back pain
when the weather changes. On examination today he still
has evidence of myelopathy from his previous cervical
spinal cord injury. He remains totally disabled from
working. He is permanently disabled from working from
this point forward. Follow-up in this office will be as
needed from this point forward.

Dr. Mitchell’s records, dated June 6, 2015, noted how the spinal

injections significantly reduced Mr. Babineaux’s pain for a few months at a time,

2
To put his comments in perspective, Mr. Babineaux was born in 1954 and is around “six,
two (6’2”).”

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but “[t]he patient has severe spasticity, as a result of his spinal cord damage” and

“persistent acute pain.” Dr. LeJeune, Mr. Babineaux’s treating chiropractor,

testified that, due to his back and neck surgeries, Mr. Babineaux has chronic

muscle spasms, muscle atrophy, a limp, and a curled up arm. He explained how

Mr. Babineaux’s nerves stay in an excited state, which he treats with manipulation

and stretching as well as the injections provided by Dr. Mitchell. Dr. LeJeune has

witnessed Mr. Babineaux in severe spasm, which he attributes to Mr. Babineaux’s

nerve damage that will only get worse with time. In his opinion, Mr. Babineaux’s

disability is greater than it was at the time of the last trial. While there has been a

decrease in pain since the last surgery, Dr. LeJeune was of the opinion that there

was also a decrease in functional ability. He further testified that he has no

problem with Mr. Babineaux’s activities as exercise and movement can relax

excited nerves and contribute to continued function; merely sitting on a couch all

day would be more detrimental to his condition.

Mr. Babineaux’s wife, Lydia Jo Babineaux, testified to the negative

and severe effects of Mr. Babineaux’s increased activity, explaining how his

muscles seize up and spasm when he gets home, which continue throughout the

night. The spasms are sometimes so severe that his shoulder becomes dislocated,

and they have had to rely on neighbors to move him when he falls. Through her

testimony and Mr. Babineaux’s, it was revealed that, as per his doctors’ direction,

the couple moved their bedroom downstairs because traversing the stairs had

become too risky. The couple has even had to call Dr. LeJeune to the house to try

to alleviate the spasms. While Mr. Babineaux feels good enough to stand around

and tell others what to do at a job site, Mrs. Babineaux is clearly not in agreement

given the episodes she has witnessed when he returns home from the worksite.

7

And even Mr. Babineaux conceded that he cannot “supervise” on a daily basis as

his pain increases with the passage of time from his last injection and with the

changes in weather and atmospheric pressure. Though he may have a few good

days, his pain and muscle spasticity will catch up with him. His lack of

consistency and dependability as well as his physical limitations make him

essentially unemployable.

After considering the evidence and arguments of the parties, the WCJ

rendered judgment in favor of Mr. Babineaux and against LUBA, denying its

request to modify the previous PTD judgment. In her reasons, the WCJ explained:

While the evidence here clearly establishes that
Babineaux is able to perform certain tasks such as
changing receptacles and light fixtures for friends or
family and keeping an eye on workers, there is no
evidence of his being paid for any of those services, nor
any evidence of the value of those services, if any.
Michael DeRouen testified that he would not pay anyone
to perform the services Babineaux performed for him.
There was no evidence of what price, if any, could be
charged for changing outlets or lighting fixtures. And the
evidence did not establish by a preponderance that
Babineaux would be able to perform those services on a
consistent basis.

The WCJ has had the opportunity to observe
Babineaux on multiple occasions over the years. Going
back to the initial trial on compensability and whether an
accident occurred, one factor that led the insurer to deny
the claim was the fact that he continued working for a
period after the accident. But this was found to have
been a case of pushing himself too hard as opposed to not
being hurt. The fact that Babineaux pushed himself to
continue working after his accident is one reason his
condition was so serious by the time he went to the
doctor and a reason he damaged his nerves. While
Babineaux is not the “perfect” witness or “perfect”
person he appears to be a generally honest, hard-working
man. It is entirely consistent with this court’s
experiences with him that he would push himself just to
stay busy. Certainly his wife’s exasperation was evident.
But his drive to stay busy does not equate to an ability to

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earn any wage. At best the probabilities are evenly
balanced, and therefore the insurer fails to meet[] its
burden of proving by a preponderance of the evidence
that the judgment should be modified.

As for LUBA’s claim of forfeiture, the WCJ stated from the bench:

I am willing to say that I don’t make any finding of fraud.
I mean, I -- and I’m shaking my head and kind of
laughing. Really, I just don’t see any way that I would
be making a finding of fraud or violation of 1208.

III.

STANDARDS OF REVIEW

The factual determination of whether a party has demonstrated a

change in a workers’ compensation claimant’s condition “is entitled to great

weight and will not be disturbed unless clearly wrong.” Hardee v. City of

Jennings, 07-242, p. 3 (La.App. 3 Cir. 5/30/07), 961 So.2d 531, 533, writs denied,

07-1779, 07-1799 (La. 11/9/07), 967 So.2d 505, 509. Whether an employee has

forfeited his right to workers’ compensation benefits is also a factual issue and,

thus, subject to the manifest error or clearly wrong standard of review, which

precludes the setting aside of a trial court’s factual finding unless that finding is

clearly wrong in light of the record reviewed in its entirety. Carrier v. Harrington,

14-1027 (La.App. 3 Cir. 4/8/15), 162 So.3d 1273, writ denied, 15-904 (La.

6/19/15), 172 So.3d 1091. In making these determinations, “great weight is to be

attached to the trial court’s evaluation of the credibility of the witness.” Thompson

v. Natchitoches Parish Hosp. Serv. Dist., 365 So.2d 57, 59 (La.App. 3 Cir. 1978).

This is because

only the factfinder can be aware of the variations in
demeanor and tone of voice that bear so heavily on the
listener’s understanding and belief in what is said.
Where documents or objective evidence so contradict the

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witness’s story, or the story itself is so internally
inconsistent or implausible on its face, that a reasonable
fact finder would not credit the witness’s story, the court
of appeal may well find manifest error or clear
wrongness even in a finding purportedly based upon a
credibility determination. But where such factors are not
present, and a factfinder’s finding is based on its decision
to credit the testimony of one of two or more witnesses,
that finding can virtually never be manifestly erroneous
or clearly wrong.

Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989) (citations omitted). The issue to

be resolved on review, therefore, is not whether the factfinder was right or wrong,

but whether its conclusion was a reasonable one based on the record before the

court. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

IV.

LAW AND DISCUSSION

Pursuant to La.R.S. 23:1310.8, a party may seek the modification of a

previous compensation award in a workers’ compensation case “on the ground of a

change in conditions.” The burden of proof is on the party seeking the

modification to show, by a preponderance of the evidence, that the disability of the

worker has either increased or diminished. Lormand v. Rossclaire Constr., 01-515

(La.App. 3 Cir. 12/12/01), 801 So.2d 675.3

In the present matter, LUBA asserts that the evidence recited above

establishes, by a preponderance of the evidence, a significant change in Mr.

Babineaux’s functional capacity. LUBA argues that the evidence shows that Mr.

3
Interestingly, Mr. Babineaux argues to this court, as he did to the WCJ, that, because this
case involves PTD status, LUBA had to prove a change in condition by clear and convincing
evidence—the burden imposed upon an employee seeking total disability status pursuant to
La.R.S. 23:1221(2)(c). However, we find no merit in this argument in light of this circuit’s long-
standing jurisprudence applying the preponderance of evidence standard in such cases. See
Rourks v. Commercial Union Ins. Co., 497 So.2d 35 (La.App. 3 Cir. 1986) (denial of request to
modify previous PTD adjudication).

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Babineaux is able to engage in employment, at least as a supervisor, and has

received compensation for this employment in the form of deer, fish, and fuel.

Therefore, LUBA claims that the WCJ manifestly erred in its finding no change in

his condition. We disagree.

After reviewing the entirety of the record evidence, we find no

manifest or clear error in the WCJ’s factual findings. Rather, as outlined in its

reasons, the WCJ’s decision is based on the medical evidence. Both Dr. Juneau

and Dr. LeJeune opined that Mr. Babineaux is still permanently disabled, with Dr.

LeJeune further opining that Mr. Babineaux’s functionality has decreased along

with his pain. Dr. Mitchell also recorded Mr. Babineaux’s still “severe spasticity”

as well as his “persistent acute pain.”

Moreover, though the evidence does show that Mr. Babineaux has

continued to perform small electrical jobs and to supervise workers, LUBA, as the

WCJ noted, presented no evidence of what wage could be earned for these services

or what value or price could be assigned to them. It also failed to present evidence

to show that Mr. Babineaux would be able to perform these services on a

consistent basis so to maintain any employment in a workers’ compensation

context. To the contrary, the evidence demonstrates that Mr. DeRouen would not

pay anyone for the help that Mr. Babineaux provided him, and there was no

evidence that Mr. Babineaux was paid for any of these services. Actually, the

evidence shows that Mr. Babineaux received nothing, except reimbursement for

the parts and fuel used when performing his small electrical services. While the

DeRouens did give Mr. Babineaux deer and fish and allowed him to use their

diesel, LUBA did not present any evidence of the value of these items or that it

was more probable than not that these exchanges were made in lieu of monetary,

11

even if de minimis, payment for services rendered. The medical evidence as well

as Mr. and Mrs. Babineaux’s testimony further establish that Mr. Babineaux is not

physically capable of performing even these minor tasks on a consistent basis.

The issue in this case ultimately comes down to whether Mr.

Babineaux’s admitted desire to stay busy equates to an ability to engage in any

employment, which would constitute a change in his condition. This necessarily

required a comparison of Mr. Babineaux’s condition at the time of the previous

PTD adjudication and his present condition, including his activities and functional

capabilities. As the WCJ has watched and observed Mr. Babineaux over the

course of a decade, she was in the best position to make this comparison. And the

WCJ found that Mr. Babineaux’s willingness to do these odd electrical jobs did not

prove his ability to consistently perform these same jobs, but rather was merely

consistent with him pushing himself, even to his detriment, to stay busy.

In fact, as Mr. Babineaux even noted in his trial statements, the

activities of which LUBA now complains are of the same nature as the activities

that Mr. Babineaux was performing at the time he was adjudicated permanently

and totally disabled. Similar records and surveillance documenting Mr.

Babineaux’s activities were presented in the 2011 trial. The only difference in the

present matter is the noted reduction of Mr. Babineaux’s pain, coupled with his

decreased functionality. As the medical records show, his severe nerve damage

and spasticity remain. Further, the WCJ viewed the surveillance videos taken of

Mr. Babineaux before the 2011 trial as well as the videos taken before this trial and

concluded that, at best, the probabilities were even. In light of this evidence, the

WCJ made reasonable credibility evaluations and factual inferences that we will

12

not disturb on review, particularly when there is no contradictory objective

evidence or internal inconsistency in the testimony that would warrant such action.

Having reviewed all the evidence, we find that the record, in its

entirety, does reasonably support a finding that LUBA failed to prove, by a

preponderance of the evidence, that Mr. Babineaux is now capable of engaging in

any employment as contemplated by our workers’ compensation scheme.

Accordingly, we cannot say that the WCJ’s refusal to modify its previous PTD

judgment was clearly or manifestly erroneous.

LUBA also argues the WCJ committed legal error in finding that Mr.

Babineaux established, by clear and convincing evidence, that he was permanently

and totally disabled. However, the burden to prove a change in circumstances was

on LUBA. Because LUBA did not prove such a change by a preponderance of the

evidence the burden to reestablish permanent and total disability never shifted back

to Mr. Babineaux. Moreover, the WCJ never found that Mr. Babineaux had re-

proved or even had to re-prove his PTD status; it merely focused on LUBA’s

burden of proof and its failure to meet its evidentiary burden. Therefore, we find

this assignment of error is meritless.

Finally, LUBA argues that the WCJ committed either legal or

manifest error in holding that Mr. Babineaux had not violated La.R.S. 23:1208 by

receiving fish, deer, and fuel in compensation for his work with DeRouen Electric

while receiving PTD benefits.

In Scallon v. Boise Cascade Corp., 05-327, p. 5 (La.App. 3 Cir.

11/2/05), 915 So.2d 1004, 1007, this court stated the following regarding a claim

for forfeiture of workers’ compensation benefits:

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The Louisiana Supreme Court has interpreted
La.R.S. 23:1208 as providing for the forfeiture of
workers’ compensation benefits when a claimant (1)
makes a false statement or representation; (2) that
statement or representation is willfully made; and (3) the
false statement or representation is made for the purpose
of obtaining or defeating any benefit or payment.
Resweber v. Haroil Constr. Co., 94-2708 (La. 9/5/95),
660 So.2d 7. A forfeiture pursuant to La.R.S. 23:1208 is
not necessary where the false statement is
inconsequential or was made inadvertently. Jeanise v.
Cannon, 04-1049 (La.App. 3 Cir. 2/23/05), 895 So.2d
651. “Forfeiture of benefits under La.R.S. 23:1208 is a
harsh remedy which must be strictly construed.” Regan
v. Eunice Superette, Inc., 04-227, p. 5 (La.App. 3 Cir.
9/29/04), 884 So.2d 1209, 1213.

LUBA, in its arguments to this court, relies solely on Mr. Babineaux’s

admission that he knows it is a violation of the Louisiana Workers’ Compensation

Act to receive benefits while working. However, that admission, which is merely a

recitation of the law, does not prove LUBA’s claim for forfeiture, particularly here

where Mr. Babineaux readily admitted and never denied that he was still

performing minor electrical services pro bono. The WCJ clearly found Mr.

Babineaux “to be a generally honest, hard-working man.” As a credibility

determination, we accord this finding great deference. We further find that the

record evidence reasonably supports the WCJ’s finding that Mr. Babineaux, rather

than trying to circumvent our law, was pushing himself beyond his physical limits

just to keep busy. In this absence of a showing of manifest error, we affirm the

WCJ’s finding of no fraud on the part of Mr. Babineaux.

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V.

CONCLUSION

For these reasons, we find no manifest or clear error in the WCJ’s

denial of LUBA’s claims for modification and forfeiture. We affirm the judgment

of the Office of Workers’ Compensation.

Costs of this appeal are assessed to LUBA Workers’ Compensation.

AFFIRMED.

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