Donald Tanks v. Cb&i, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-369

DONALD TANKS

VERSUS

CB&I, INC., ET AL.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 3
PARISH OF CALCASIEU, NO. 18-00674
DIANNE M. MAYO, WORKERS’ COMPENSATION JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and
D. Kent Savoie, Judges.

AFFIRMED.

Tobin James Eason
Kenneth B. Givens
Weiss & Eason, L.L.P.
Post Office Box 8597
Mandeville, Louisiana 70470
(985) 626-5358
Counsel for Defendants/Appellants:
CB&I, Inc.
XL Specialty Insurance Company

Gregory S. Unger
Workers’ Compensation, LLC
3045 Ridgelake Drive, Suite 201
Metairie, Louisiana 70002
(504) 838-8811
Counsel for Plaintiff/Appellee:
Donald Tanks

KEATY, Judge.

The employer, CB&I, and its workers’ compensation insurer, XL Specialty

Insurance Company (collectively CB&I), appeal a judgment rendered in favor of the

claimant, Donald Tanks, on the grounds that the Workers’ Compensation Judge

(WCJ) erred in failing to find that Tanks forfeited his claim for benefits by being

untruthful on his employment application. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On the morning of January 8, 2018, Tanks arrived at his worksite and attended

a routine safety meeting with the other riggers working on a CB&I project in

Hackberry, Louisiana (the Hackberry project). It had rained all weekend, and the

area was muddy. As he was walking toward his crane to begin working, he stepped

into a flooded hole and sunk down to his waist. Tanks was taken by ambulance to

the emergency room at West Calcasieu Cameron Hospital where he was diagnosed

with “acute lumbosacral strain.” He began treatment with chiropractor, Dr. Michael

Haydel, on January 10, 2018. Tanks’ chief complaints were of low back pain and

right shoulder pain that began immediately after the accident. An X-ray of Tanks’

lumbar spine taken that day revealed “[n]o abnormality.” Dr. Haydel diagnosed

Tanks with a “lumbar sprain/strain with associated neuritis/radiculitis” and with

right shoulder sprain/strain . . . with muscle spasms,” and he restricted Tanks from

work.

Tanks filed a Form 1008 Disputed Claim for Compensation (Form 1008) with

the Office of Workers’ Compensation on January 31, 2018, alleging that he injured

his back in the January 8, 2018 accident. He alleged that CB&I had not paid any

wage benefits nor had it authorized any medical treatment. Tanks sought treatment

from his choice of neurosurgeon and chiropractor, as well as statutory penalties and

attorney fees for CB&I’s failure to reasonably controvert his claim. In its initial

answer to Tanks’ claim, CB&I denied that he was injured and/or disabled in a work-

related accident. By way of an amended answer, however, CB&I asserted that Tanks

forfeited his right to collect benefits in violation of La.R.S. 23:1208.1 (hereafter

sometimes referred to as “the Forfeiture Statute”).

The matter proceeded to trial before the WCJ on February 20, 2019. After

both parties submitted exhibits 1 without objection, they stipulated “as to the

occurrence of an accident on January 8, 2018, in the course and scope of Mr. Tanks’

employment” and to Tanks’ average weekly wage of $1,640.87 with a corresponding

“max comp rate.” The only two witnesses to testify at trial were Tanks and Joel

Denison, the safety manager at CB&I on the date of Tanks’ accident. After

entertaining closing arguments, the WCJ declared from the bench that it was ruling

in Tanks’ favor, denying CB&I’s argument that Tanks had forfeited benefits

pursuant to the Forfeiture Statute and denying Tanks’ claims that CB&I be cast with

penalties and attorney fees. By written judgment dated March 1, 2019, the WCJ

found that Tanks “injured his back or aggravated a pre-existing back condition in an

accident that arouse out of and within the course and scope of his employment” with

CB&I. Tanks was awarded continuing temporary total disability benefits (TTDs)

“at the weekly rate of $653.00 retroactive to the date of the accident, plus interest,

subject to a credit for short term disability benefits paid under the employer’s

disability benefit plan.” The WCJ further ordered that Tanks was “entitled to all

reasonable and necessary related medical benefits,” and it ordered CB&I to pay all

of Tanks’ “outstanding related medical expenses,” to reimburse Tanks for all of the

related medical expenses that he had paid, and to “authorize future related medical

treatment with [Tanks’] choice of physician.”

1
Tanks introduced twenty-one exhibits, and CB&I introduced nineteen exhibits.
2

CB&I now appeals, asserting in its sole assignment of error that the WCJ erred

in denying the application of La.R.S. 23:1208.1 to defeat Tanks’ request for benefits.

Tanks filed an Answer to Appeal wherein he requested that this court award his costs

and attorney fees.

LAW AND DISCUSSION

Louisiana Revised Statutes 23:1208.1, titled “Employer’s inquiry into

employee’s previous injury claims; forfeiture of benefits,” provides, in part:

Nothing in this Title shall prohibit an employer from inquiring
about previous injuries, disabilities, or other medical conditions and the
employee shall answer truthfully; failure to answer truthfully shall
result in the employee’s forfeiture of benefits under this Chapter,
provided said failure to answer directly relates to the medical condition
for which a claim for benefits is made or affects the employer’s ability
to receive reimbursement from the second injury fund. This Section
shall not be enforceable unless the written form on which the inquiries
about previous medical conditions are made contains a notice advising
the employee that his failure to answer truthfully may result in his
forfeiture of worker’s compensation benefits under R.S. 23:1208.1.

We are compelled to note at the outset of this opinion that CB&I, in its reply

brief to this court, clarified that “this is not a Second Injury Claim. The issue is the

direct relationship between the prior injury and the current injury.” Accordingly, we

need not determine whether Tanks’ untruthful answers impaired its ability to collect

reimbursement from the second injury fund. Nevertheless, we must mention the

second injury fund in our discussion of the history and purpose of the Forfeiture

Statute.

In Nabors Drilling USA v. Davis, 03-136, pp. 4-5 (La. 10/21/03), 857 So.2d

407, 413-14 (first emphasis added), the supreme court explained how the Forfeiture

Statute fits into the overall workers’ compensation scheme:

In order “to encourage the employment of physically
handicapped employees who have a permanent, partial disability by
protecting employers . . . from excess liability for workers’
compensation for disability [which may result] when a subsequent
injury to such an employee merges with his preexisting permanent
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physical disability to cause a greater disability than would have
resulted from the subsequent injury alone,” the legislature created
the Second Injury Fund. LSA–R.S. 23:1371(A). An employer who
“knowingly employs or knowingly retains in his employment” an
employee who suffers from a permanent partial disability as defined by
the statute is entitled to be reimbursed from the fund if that employee
“incurs a subsequent injury arising out of and in the course of his
employment resulting in liability for disability due to the merger of the
subsequent injury with the preexisting permanent partial disability.”
LSA–R.S. 23:1378(A)(1).

In order to assist the employer in meeting its statutory burden of
establishing that it “knowingly” hired a worker with a preexisting
permanent partial disability so as to qualify for reimbursement from the
second injury fund, LSA–R.S. 23:1208.1 permits the employer to
obtain medical information from an employee or job applicant
concerning preexisting conditions. The same statute that permits this
inquiry also states that the employee’s failure to answer the employer’s
inquiry truthfully shall result in the forfeiture of workers’ compensation
benefits provided certain enumerated circumstances are met.

The Nabors court further noted that:

Forfeiture is a harsh remedy; therefore, statutory forfeiture
provisions such as LSA-R.S. 23:1208.1 must be strictly construed.
Wise v. J.E. Merit Constructors, Inc., 97-0684 (La.1/21/98), 707 So.2d
1214, 1218. By its express terms, LSA-R.S. 23:1208.1 provides for
forfeiture under three circumstances. There must be (1) an untruthful
statement; (2) prejudice to the employer; and (3) compliance with the
notice requirements of the statute. Id., citing Resweber v. Haroil Const.
Co., 94-2708, 94-3138 (La.9/5/95), 660 So.2d 7. The employer has the
burden of proving each of the elements required by the statute. Wise,
707 So.2d at 1218. The lack of any one of the elements is fatal to the
employer’s avoidance of liability under the statute. Id.
As we noted in Wise, 707 So.2d at 1219, untruthful answers
alone do not result in the forfeiture of benefits under LSA-R.S.
23:1208.1. The employer must also prove that it provided the employee
with notice comporting with the dictates of the statute.

Id. at 414 (emphasis added). See also Benoit v. Ace Transp., 10-371 (La.App. 3 Cir.

12/8/10), 51 So.3d 192, writ denied, 11-14 (La. 3/25/11), 61 So.3d 663.

Our supreme court discussed the policy considerations at play in the Forfeiture

Statute in Nabors, 857 So.2d at 414-15 (emphasis added), where it noted:

[T]he legislature has decided to specifically impose a requirement that
the untruthful statement concerning a prior injury will result in
forfeiture of benefits only when the false statement causes
prejudice to the employer. Louisiana Revised Statute 23:1208.1
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states: forfeiture only occurs “provided said failure to answer directly
relates to the medical condition for which a claim for benefits is
made. . . .” See Resweber, 660 So.2d at 16. This proviso strikes a
careful balance. It reflects the legislature’s recognition of the harshness
of the forfeiture penalty and attempts to ameliorate the harshness of that
penalty for the individual who is simply in the position of trying to
obtain or maintain gainful employment, while at the same time
preserving the goal of the second injury fund, which is to enhance
employment opportunities for those who have been previously disabled.
Thus, it is not every untruthful statement on a medical history
questionnaire that will result in the forfeiture of workers’ compensation
benefits for a subsequent work-related injury. It is only those
statements that rise to the level of meeting the statutory proviso of LSA-
R.S. 23:1208.1 that will subject the employee to forfeiture.

“A WCJ’s determination regarding forfeiture of benefits is subject to the

manifest error/clearly wrong determination.” Dugas v. AutoZone, Inc., 12-727, p. 4

(La.App. 3 Cir. 12/5/12), 103 So.3d 1271, 1275, writ denied, 13-45 (La. 2/22/13),

108 So.3d 775. In keeping with its recognition that La.R.S. 23:1208.1 “provides for

forfeiture under narrow circumstances,” the supreme court in Wise noted that

whether a claimant should be found to have forfeited his claim to workers’

compensation benefits must be decided on a case by case basis, taking into account

“the circumstances of [each] case” under review. Wise, 707 So.2d at 1215, 1218.

When Tanks applied for a job with CB&I on April 26, 2017, he was asked to

complete a five-page Second Injury Board Knowledge Questionnaire. The first and

last page of the Questionnaire contained a notice which appears to meet the

technical2 requirements described in La.R.S. 23:1208.1. The second page contained

the following instructions: “Please place a check in the appropriate box next to each

medical condition listed below. Each illness or condition requires a Yes (Y) or No

(N) answer. For all conditions that you check yes, write a brief explanation on the

Explanation Page.” Additional instructions titled “Disease and Other Medical

Conditions” asked the applicant to: “(Please check the appropriate box. Each

2
“[N]otice shall be prominently displayed in bold faced block lettering of no less than ten
point type.” La.R.S. 23:1208.1.
5

illness/injury requires a Yes (Y) or No (N) answer.).” Underneath the instructions

was a chart containing fifty-two (52) medical conditions. The bottom two-thirds of

page two of the Questionnaire was titled “Surgical Treatment,” which again directed

the applicant to: “(Please check the appropriate box. Each illness/injury requires a

Yes (Y) or No (N) answer.)” Ten surgeries were listed. Tanks checked “N” to all

the boxes on page two. The third page of the Questionnaire was titled

“EXPLANATION PAGE.” Tanks wrote “N/A” in the first blank on page three. The

fourth page of the Questionnaire contained the following five questions, which all

gave the option to check “Yes” or “No,” with further questions to be answered if the

answer to any of the questions was “Yes.”

1. Has any doctor ever restricted your activities?

2. Are you presently treating with a doctor, chiropractor, psychiatrist,
psychologist or other health-care provider?

3. If you are presently taking prescription medication other than those
listed on the Explanation Page, please complete the requested
information below.

4. Have you ever had an on the job accident?
5. Has a doctor recommended a surgical procedure, which has not been
completed prior to this date, including but not limited to knee, hip or
shoulder replacement?
Tanks answered “No” to all five questions.

CB&I’s primary argument on appeal is that the WCJ erred in not finding that

Tanks forfeited his right to benefits because his answers to questions one, four, and

five were untruthful. Specifically, CB&I submits that “on February 15, 2014, [Tanks]

sustained an on-the-job injury to his foot involving a crane incident in Geismar,

Louisiana.” According to CB&I, Tanks soon “began having complaints of back pain”

for which he sought treatment with Dr. Rand Voorhies, a neurosurgeon, who, in May

2015, recommended that Tanks undergo a lumbar fusion and restricted his activities.

CB&I likens Tanks’ 2018 injury to his 2014 injury, arguing that Tanks sustained

6

injuries to his low back in both instances. CB&I insists that the mechanism of the

trauma is not the standard to be used in considering the applicability of the Forfeiture

Statute, but rather the determining inquiry is whether there is a direct relationship

between the prior injury and the current injury. Because Tanks’ medical providers

gave him restrictions regarding his low back after both his 2014 injury and his 2018

injury, CB&I contends that it met its burden of proving a direct relationship between

Tanks’ prior and current injuries. It further submits that “there was indeed prejudice

to the Employer because the significant injury herein, a back injury, is precisely the

same injury that occurred several years earlier for which the Employee desired a low

back surgery and was even compensated for in a prior worker’ compensation [sic].”

Tanks submits that given the unique circumstances of this case, the WCJ’s

conclusion that CB&I failed to meet its burden of proving all three elements

necessary to make the Forfeiture Statute applicable is not manifestly erroneous or

clearly wrong. Tanks notes that while he freely admitted at trial that some of his

answers to the Questionnaire were untruthful, it was not his intent to provide

untruthful answers. Tanks testified that he suffered a prior injury to his left foot that

led to his having back pain and a recommendation for back surgery, which he

declined to pursue. He points out that his 2014 accident occurred while he was

working for CB&I; therefore, he submits that his failure to note it on the

Questionnaire should not cause any prejudice to CB&I as it was most certainly aware

of its occurrence. Additionally, he points to his trial testimony wherein he explained

the circumstances surrounding his completion of the Questionnaire when he

reapplied for employment with CB&I in April of 2017. He had made the three hour

drive from New Orleans to Hackberry that morning. Once there, the applicants stood

and waited until the position they were applying for was called. Tanks stated that

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the positions of “rigger” and “CCR certified”3 were called approximately two hours

after he arrived at the site. As a result, he was in a hurry and did not take the time

to read everything, so he “checked off the questionnaire to try to get to the next stage

to end this hiring on process.” Tanks refers this court to the trial testimony of Joel

Denison, the CB&I Safety Manager on the Hackberry project at both the date of

Tanks’ interview and the date of his 2018 injury. Denison explained that the hiring

process in April 2017 was very chaotic as approximately 12,000 people were

applying for employment with CB&I.4

Accordingly, Tanks contends that the appealed judgment is correct because

CB&I failed to meet is burden of proving the applicability of the Forfeiture Statute.

WCJ’s Oral Reasons for Judgment

At the close of the trial in this matter, the WCJ made the following oral ruling:

What I find here is that Mr. Tanks did have an injury to his foot
in 2014 and because of his antalgic gait[5] caused pain to his back at the
[L]4-L5 area. In 2017, he went to work for CB&I and he worked nine
months without an injury and when he did have an injury, he had injury
to L3-L4 L5-S1, re-injured L4-L5 and his shoulder and neck and for me
to deny him workers’ comp benefits because he rushed through an
application and didn’t divulge that he had a prior injury to the L4 and
L5 with all these new injuries that he did receive, I don’t think the Act
recognizes -- or wants me to do this because they say he may lose his
benefits and with that being permissive that he may lose his benefits,
I’m going to say that he was injured. There are new injuries. I think if
the only thing that was injured was L4 and L5 then you have a clear cut
case for a 1208.1 fraud, but that’s not the totality of his back injury. If
that was all that was injured, then, yes, you would have to bear your
burden, but we have too many new injuries that are not related to the
L4-L5 along with -- you have a shoulder, the neck, so you are entitled
to a contribution - or a reimbursement of any payments or credit -- any
payments that he did receive from his short-term/long-term disability.
3
CCR stands for Central Contractor Registration, a supplier database used by the United
States government.
4
Mr. Denison explained that CB&I is a global corporation involved in many joint ventures
across the country, and he did not have access to information regarding whether an applicant such
as Tanks had suffered an on-the-job accident as a former employee. We find that whether the
safety manager knew of Tanks’ prior injury is not particularly indicative of whether CB&I should
have been aware that Tanks had been previously injured when he was its employee.
5
An “antalgic gait” is a way of walking that a person develops as a way to avoid pain.
8

But I am going to say that he’s entitled to indemnity benefits. He is
entitled to any medical that he has had and has not been paid; he’s
entitled to that.

Given Tanks’ admission that his answers to the Questionnaire were untruthful,

CB&I is relieved of the burden of proving the first prong for applicability of the

Forfeiture Statute. See Wise, 707 So.2d 1214. Thus, we must decide whether Tanks’

untruthful answers directly relate to the medical condition at issue in his current

claim for benefits and whether CB&I’s Questionnaire complied with the notice

requirements of the Forfeiture Statute.

Direct Relation Test

In 1998, the supreme court was tasked with addressing “a split in the courts

of appeal on the interpretation of ‘directly relates to the medical condition for which

a claim for benefits is made’ found in La.R.S. 23:1208.1.” Wise, 707 So.2d at 1219.

The first circuit “urged a ‘straightforward reading’ of § 1208.1,” noting that “the

current and past injuries were to the ‘exact same areas.’” Id. (internal citations

omitted). The second, third, and fourth circuits rejected the first circuit’s

“anatomical identity test.” Id. In deciding which of those two interpretations were

correct, the Wise court wrote:

The legislature has adopted a policy whereby we are to interpret
the chapter in ways effectuating relief for workers when their injuries
are work related. Harold v. La Belle Maison Apartments, 643 So.2d
752 (La.1994). That policy, balanced with the language of § 1208.1
and the harshness of forfeiture, requires us to reject an interpretation of
the statute based on a mere anatomical connexity. Instead, we find the
interpretation of “directly relates” relied upon by the Second, Third, and
Fourth Circuits more in keeping with the clear wording of the statute
and the legislative intent. That is, a direct relation is established when
the subsequent injury was inevitable or very likely to occur because of
the presence of the preexisting condition.
Id. at 1220 (emphasis added). See also Lavalais v. Gilchrist Const. Co., LLC, 14-

785 (La.App. 3 Cir. 2/4/15), 158 So.3d 195. This court, in Jeffers v. Kentucky Fried

Chicken, 08-1380, p. 13 (La.App. 3 Cir. 4/1/09), 7 So.3d 812, 820, writ denied, 09-

9

956 (La. 6/19/09), 10 So.3d 738, observed that the “inevitability test” adopted by the

supreme court in Wise “lays a very difficult test before the employer, and with good

reason: forfeiture of benefits is a harsh remedy. It should require very strict proof.”

In the beginning of its appellant brief, CB&I correctly notes that “a direct

relationship” cannot be “based on mere anatomical coincidence.” Nevertheless,

CB&I later insists that it has been prejudiced as a result of Tanks’ 2018 accident

because he has “corresponding direct, exact anatomical injuries in this instance, just

that [he] also had complaints of some shoulder pain.” The foregoing statement

indicates that CB&I would have this court apply a direct relation test that has been

specifically rejected by the supreme court. We will not do so.

CB&I claims that Dr. Voorhies testified that “it would be inevitable that

[Tanks’] low back would be re-injured” should Tanks ever attempt to return to

manual labor work.” We have read Dr. Voorhies’ January 23, 2019 deposition, and

we find that CB&I has mischaracterized his testimony. Dr. Voorhies agreed that

given Tanks’ condition when he last treated him in 2016, he would be susceptible to

a low back injury, but he declined to use the word “inevitable,” preferring to say that

it would be “more likely than not.” On the other hand, Dr. Voorhies agreed that

Tanks would be “very likely” to have continued or increased lumbar pain if he

returned to manual labor work. When asked whether he would have “restricted

[Tanks] from heavy manual labor positions in 2016,” Dr. Voorhies stated that “the

consequence of exceeding his limitations is pain.” He explained that “there are

situations where a patient is at risk for irreversible neurologic deficit,” but that he

“didn’t judge that to be the case” for Tanks. Dr. Voorhies noted that he

recommended that Tanks undergo a lumbar fusion to relieve his pain, which he

found to be a valid reason to have surgery, as opposed to Tanks’ needing surgery

due to “impending paralysis.”
10

We agree in principle with CB&I’s argument that the mechanism of the

traumas causing Tanks’ prior and current injuries is not the key factor in ascertaining

whether a direct relationship exists between them. Nevertheless, we note that neither

of Tanks’ workplace accidents were caused by him putting any strain on his low

back. Instead, his 2014 accident occurred when a crane was lowered onto his foot,

and his 2018 accident occurred when he stepped in a flooded hole on his worksite as

he was walking from a safety meeting to begin his shift, before he began performing

his regular duties as a rigger.

At trial, CB&I elicited testimony from Tanks to show that after he settled his

claim against them regarding his February 2014 workplace accident, he began

working for Turner Industries in the fall of 2016, which position he held for about

six months before being laid off. Thereafter, Tanks was rehired by CB&I in April

2017, where he worked as a rigger on the Hackberry project for over eight months

without any restrictions or missed days of work before his January 2018 accident.

According to the Initial Medical Evaluation completed by Dr. Haydel when

Tanks first sought treatment within two days after his January 2018 accident, Dr.

Haydel noted that Tanks disclosed that he had a work-related accident in 2014 that

caused him low back pain. Tanks told Dr. Haydel that he had received treatment for

those injuries, that his symptoms had gradually improved over time, and that the

symptoms that he was currently experiencing were not similar to those he suffered

following his 2014 accident. In the Final Report of an MRI of Tanks’ lumbar spine

performed on February 22, 2018, following the injury at issue in this case, Dr. Tarun

Jolly noted that when compared to a previous MRI from July 29, 2014, the “Exam

appears similar.” Regarding the L3-L4 region, Dr. Jolly found that the “[d]egree of

neuroforaminal narrowing is unchanged since 07/29/2014.” Similarly, Dr. Jolly

11

noted that the “[d]egree of central canal narrowing” of Tanks’ L4-L5 region “is

unchanged since 07/29/2014.”

In Lavalais v. Gilchrist Construction Co., LLC, 14-785 (La.App. 3 Cir.

2/4/15), 158 So.3d 195, the employer appealed a judgment rendered by the WCJ in

favor of its former employee, awarding him TTDs and past and future medical

expenses, and denying the employer’s La.R.S. 23:1208.1 defense. In affirming the

judgment of the WCJ, this court first noted that “the WCJ was manifestly erroneous

in his determination that [the employee] was not untruthful” in his answers to the

employer’s post-hire medical questionnaire. Id. at 203. Nevertheless, we

determined that the employer failed to “carr[y] its burden of proof under the direct

relationship test element of La.R.S 23:1208.1, prejudice to his employer” finding

that there was “a reasonable basis in the record for his decision to find that [the

employer] was not prejudiced by the non-disclosure.” Id. at 208. In doing so, we

noted that the employee:

demonstrated his capacity to work without restrictions as a laborer over
the period of his employment until the time of the vehicle accident.
Further, the injuries allegedly suffered by Mr. Lavalais as a result of the
vehicle accident, although in the course and scope of his employment
with Gilchrist, were the result of additional trauma due to an
unavoidable vehicle accident while Mr. Lavalais was in route to the job
site, and not “while the employee was performing the regular job duties
for the employer.” Cudd v. George Koch & Sons, 94-372, p. 3 (La.App.
3 Cir. 11/2/94), 649 So.2d 505, 507, writ denied, 94-2929 (La.2/9/95),
650 So.2d 244.

Id.
After having reviewed the testimony and evidence, we cannot say that the

WCJ was manifestly erroneous in finding that Tanks did not forfeit his right to

collect workers’ compensation benefits under the circumstances presented in this

case. Tanks testified that he was tired and rushed when he reapplied for employment

with CB&I in April 2017, he did not read the Questionnaire before signing it, and

12

he had no intent to deny the occurrence of a prior accident and/or injury that took

place when he was employed by CB&I several years prior. Mr. Denison, CB&I’s

Safety Manager on the Hackberry project, confirmed that the atmosphere on the date

Tanks was rehired was chaotic. We have examined the Questionnaire that Tanks

completed in April 2017 and conclude that the fact that he checked “No” to every

question lends credence to his claim that he did not intend to provide any false

answers thereto. Moreover, the evidence indicates to us that he had recovered from

the injuries he suffered in his February 2014 accident enough to resume working as

a rigger. Moreover, we conclude that the injuries Tanks received in the 2018

accident did not merge with the injuries he received in the 2014 accident to create a

greater injury. The WCJ did not err in finding that CB&I failed to meet its burden

of proving that it was prejudiced by Tanks’ untruthful statement on the

Questionnaire. Accordingly, we need not determine whether the Questionnaire

complied with the requirement of La.R.S. 23:1208.1.

Answer to Appeal

In its oral ruling, the WCJ declined to award Tanks penalties and/or attorney

fees. In doing so, it noted that although such awards presented a “close call,” it

believed that CB&I reasonably controverted Tanks’ claim. We, likewise, decline to

award Tanks attorney fees on appeal. See Battiste v. Dolgencorp, 09-683, p. 3

(La.App. 1 Cir. 10/27/09) 29 So.3d 616, 617, where, although the appellee answered

the appeal, the appellate court denied to award it attorney fees on appeal where it

“was not awarded attorney fees below and has cited no valid authority to be awarded

attorney fees on appeal.” See also Simpson v. Lafayette Consol. Gov’t, 09-816

(La.App. 3 Cir. 2/3/10) 29 So.3d 727, writ denied, 10-477 (La. 4/30/10) 34 So.3d

292.

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DECREE

For the foregoing reasons, the judgment of the WCJ is affirmed. All costs of

this appeal are assessed against CB&I and XL Specialty Insurance Company.

AFFIRMED.

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