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Lavalais v. Gilchrist Construction Co., LLC

Court of Appeal of Louisiana, Third Circuit

February 4, 2015


Page 196


L. Lyle Parker, Christina S. Slay, Bolen, Parker, Brenner, Lee & Engelsman, LTD., Alexandria, Louisiana, COUNSEL FOR DEFENDANTS/APPELLANTS: Travelers Property Casualty Company of America, Gilchrist Construction Company, LLC.

Maria A. Losavio, Losavio Law Office, LLC, Alexandria, Louisiana, COUNSEL FOR PLAINTIFF/APPELLEE: Marlon Lavalais.

Court composed of John D. Saunders, Elizabeth A. Pickett, and John E. Conery, Judges.


Page 197

[14-785 La.App. 3 Cir. 1] CONERY, Judge.

In this workers' compensation case, Gilchrist Construction Company, LLC (Gilchrist) appeals the judgment entered in favor of its former employee, Mr. Marlon Lavalais (Mr. Lavalais), ordering Temporary Total Disability Benefits (TTDs), payment for past medical expenses, future medical treatment and expenses, past and future travel expenses, penalties, attorney fees and costs, and denying Gilchrist's special defense based on La.R.S. 23:1208.1, which would have required that all workers' compensation benefits be denied to Mr. Lavalais based on false answers to a pre-employment medical questionnaire. Mr. Lavalais answered the appeal and seeks attorney fees for appellate work. For the following reasons, we affirm as amended.


On November 2, 2012, Mr. Lavalais was injured in a one car accident in the course and scope of his employment with Gilchrist while he was riding as a guest passenger in a vehicle owned by Gilchrist. The Gilchrist vehicle struck a sign that had fallen off a transport truck on Interstate - 49. Mr. Edward Walker, Jr., the driver of the Gilchrist vehicle and also a Gilchrist employee, then lost control and ran off the road. Mr. Lavalais allegedly sustained injuries to his neck, back, and right knee as a result of the accident.

Mr. Lavalais complained that his back hurt immediately after the accident and felt like he could not go on to work with Mr. Walker. In light of his condition, Mr. Butch Mackey, a Gilchrist's supervisor, went to the scene of the accident, conducted an inspection, took pictures, and then drove Mr. Lavalais home. Mr. Lavalais has not returned to work since the November 2, 2012 accident.

[14-785 La.App. 3 Cir. 2] Mr. Lavalais began working for Gilchrist in August/September 2012, some three months prior to his November 2, 2012 accident. Subsequent to his hiring, on August 28, 2012, Mr. Lavalais completed and signed a medical questionnaire in conjunction with his company-required physical examination by Gilchrist's doctor. Based on the answers given and the medical

Page 198

examination conducted, the doctor found that Mr. Lavalais could " work with no accommodations."

The Gilchrist medical questionnaire states in boldface, underlined, capital letters at the top of the page, " YOUR FAILURE TO ANSWER ANY OF THE QUESTIONS ON THIS FORM TRUTHFULLY MAY RESULT IN YOUR FOR FUTURE OF WORKER'S COMPENSATION BENEFITS UNDER LA.R.S. 23:1208.1."

Underneath the bold capitalized warning, the next sentence reads, " Indicate whether or not you currently have, have previously had, or have ever been treated for any of the following conditions. (Check box to indicate 'YES')." Mr. Lavalais answered " NO" to all of the conditions including, " KNEE INJURY, NECK INJURY AND BACK INJURY."

The next portion asks " Are you presently under any medical treatment?" Mr. Lavalais also responded " NO." To the next question, " Are you presently taking medication[,]" Mr. Lavalais also responded, " NO." Mr. Lavalais contests that it was his handwriting in the response to the follow up medication question, discussing his use of medication. The answer to this portion of the questionnaire stated, " Not Regular. Lortab PRN. Left arm pain due to old football injury." Mr. Lavalais testified that he did not write the answer to this portion of the questionnaire, which appears to be signed by Dr. Edwards, who conducted the pre-hire physical on Mr. Lavalais.

[14-785 La.App. 3 Cir. 3] Following the rest of the questions, to which Mr. Lavalais responded " N/A." [1] is another statement, also capitalized, in boldface, and underlined, which provides: " WARNING-PURSUANT TO LSA 1208.1, I UNDERSTAND THAT THE FAILURE TO ANSWER ANY OF THESE QUESTIONS TRUTHFULLY MAY RESULT IN THE DENIAL OF ANY RIGHT I OR MY DEPENDENTS MAY HAVE TO [WORKERS'] COMPENSATION BENEFITS, INCLUDING WEEKLY BENEFITS, MEDICAL TREATMENT AND EXPENSES, UNDER R.S. 23:1208.1."


In connection with their investigation of the November 2, 2012 accident, through a conversation between Mr. Lavalais and Ms. Kim Sandrock, the adjuster for Gilchrist's workers' compensation carrier, Travelers Insurance Company, Gilchrist learned that Mr. Lavalais had previously injured his neck, back, and right knee, had received medical treatment for those injuries, and had failed to disclose same on his pre-employment questionnaire and medical examination. Gilchrist then denied Mr. Lavalais request for workers' compensation payments, based on La.R.S. 23:1208.1 (emphasis added), which states:

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 [14-785 La.App. 3 Cir. 4] fund. This Section shall not be enforceable

Page 199

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. Such notice shall be prominently displayed in bold faced block lettering of no less than ten point type.

Based on Gilchrist's denial of benefits, on February 8, 2013, Mr. Lavalais filed a Louisiana Department of Labor (LDOL) Form 1008, seeking workers' compensation benefits and medical care in connection with the November 2, 2012 accident. On March 19, 2013, Gilchrist filed an answer to the workers' compensation claim/petition filed by Mr. Lavalais on Form 1008 stating, " Marlon Lavalais the employee, violated the provisions of 23:1208.1 and therefore forfeits any benefits that would otherwise have been owed to him." [2]

After a trial on the merits, the workers' compensation judge (WCJ) found:

[A]nd the employer took a recorded statement, their adjuster took a recorded statement from him and they learned in the recorded statement that Mr. Lavalais had, in the past, sustained a right-knee injury and had some neck and back problems in the past. Based on the medical questionnaire that Mr. Lavalais signed at the time of his employment with Gilchrist Construction Company, they contended that he violated Revised Statute 23:1208, misrepresentation statute, and was not entitled to receive any workers' compensation benefits. Accordingly, they never began paying any indemnity or authorized any medical care for Mr. Lavalais.[3]

The WCJ nevertheless concluded that Gilchrist " failed to establish forfeiture under La. Revised Statute 23:1208.1," and awarded Mr. Lavalais TTDs at the rate of $320.43 per week beginning November 3, 2012, and continuing, plus legal interest. The WCJ ordered that Mr. Lavalais was entitled to continuing medical [14-785 La.App. 3 Cir. 5] treatment from his treating physicians Dr. Mounayar and Dr. Blanda, including but not limited to lumbar surgery, knee surgery, and cervical surgery in accordance with the Louisiana Fee Schedule. The WCJ awarded past medical and medical travel expenses in the amount of $16,607.07 and $1,349.82 respectively, plus legal interest until paid. The trial court also awarded penalties totaling $4,000.00, attorney fees of $12,000.00, and costs of $2,525.83, plus legal interest until paid. The WCJ's judgment was signed on May 13, 2014, from which Gilchrist now timely appeals.


The Honorable Lower Court erred in finding the employee did not forfeit his benefits under La.R.S. 23:1208.1, where the employee responded untruthfully to the employer's post-hire medical questionnaire.


Standard of Review

The standard of review in a workers' compensation claim is well established. In Lanclos v. Coastal Food, LLC, 04-222 (La.App. 3 Cir. 7/7/04), 877 So.2d 309, a panel of this circuit correctly summarized the

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standard of review when the employer has claimed that all benefits to an employee should be denied based on La.R.S. 23:1208.1, one of two anti-fraud statutes. In Lanclos, the court stated:

In general, an appellate court reviews the factual determinations of a workers' compensation judge pursuant to the manifest error-clearly wrong standard. Apeck Constr., Inc. v. Bowers, 03-486 (La.App. 3 Cir. 12/10/03), 862 So.2d 1087, writ denied, 04-459 (La.4/23/04), 870 So.2d 301. This is likewise the standard of review where an employer has alleged that a claimant has committed fraud pursuant to La.R.S. 23:1208.1. See Colonial Nursing Home v. Bradford, 02-588 (La.App. 3 Cir. 12/30/02), 834 So.2d 1262, writ denied, 03-364 (4/21/03), 841 So.2d 802. Where conflict in testimony arises, a workers' compensation judge's reasonable factual inferences and reasonable assessments of credibility are not to be disturbed on appeal, despite the beliefs of a reviewing court that its inferences or [14-785 La.App. 3 Cir. 6] evaluations are more reasonable. Williamwest v. Am. Studios/PCA Int'l, Inc., 02-98 (La.App. 5 Cir. 9/30/02), 827 So.2d 526. However, an appellate court may conclude that the workers' compensation judge's findings were manifestly erroneous or clearly wrong, even when ostensibly based upon a credibility determination, " [w]here documents or objective evidence so contradict the 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[.]" Town of Grand Isle v. Eschette, 02-96, p. 8 (La.App. 5 Cir. 5/29/02), 820 So.2d 1122, 1128, writ denied, 02-1810 (La.10/4/02), 826 So.2d 1131 (quoting Bruno v. Harbert Int'l, Inc., 593 So.2d 357, 361 (La.1992)).

Lanclos, 877 So.2d at 318 (alterations in original).

As recently reiterated in Aisola v. Beacon Hosp. Mgmt. Inc., 13-1101, pp. 8-9 (La.App. 4 Cir. 4/2/14), 140 So.3d 71, 77-78 (alterations in original), a de novo review is applied when this court finds legal error:

However, " [w]hen legal error interdicts the fact-finding process in a workers [sic] compensation proceeding," our review of those findings is conducted de novo. Tulane Univ. Hosp. & Clinic v. Lockheed Martin Corp., 11-0179, p. 3 (La.App. 4 Cir. 6/29/11), 70 So.3d 988, 990 (citing MacFarlane v. Schneider Nat'l Bulk Carriers, Inc., 07-1386, p. 3 (La.App. 4 Cir. 4/30/08), 984 So.2d 185, 188). We likewise review the WCJ's legal conclusions de novo. Id. (citing MacFarlane, 07-1386, p. 3, 984 So.2d at 188).

Louisiana Revised Statutes 23:1208.1

After relating an extensive legislative history of both La.R.S. 23:1208 and 23:1208.1, in Resweber v. Haroil Const. Co., 94-2708, 94-3138, p. 10 (La. 9/5/95), 660 So.2d 7, 14 (footnotes omitted), the supreme court clarified the difference between La.R.S. 23:1208 and La.R.S. 23:1208.1:

We therefore hold that Section 1208 applies to any false statement or misrepresentation, including one concerning a prior injury, made willfully by a claimant for the purpose of obtaining benefits, and thus is generally applicable once an accident has allegedly occurred and a claim is being made. Section 23:1208.1, on the other hand, applies to false statements or misrepresentations made pursuant to employment-related inquiries regarding prior medical history such as in an employment application or some post-employment [14-785 La.App. 3 Cir. 7] questionnaire and not to statements made in relation to a pending claim.

Page 201

Gilchrist claims that Mr. Lavalais should forfeit his benefits under La.R.S. 23:1208.1 because of his failure to answer truthfully the questions about his neck, back, and knee, which " directly relates to the medical condition for which a claim for benefits is made." [4] In order to succeed on this claim, Gilchrist must prove the necessary elements for a claim of fraud that would require that Mr. Lavalais forfeit his benefits, as summarized by a panel of this court in City of Eunice v. Carrier, 01-1184, p. 3 (La.App. 3 Cir. 2/20/02), 821 So.2d 3, 7:

There are three component parts to establishing a Section 23:1208.1 violation: (1) untruthfulness; (2) prejudice; and (3) notice.
Furthermore, the claimant must do more than simply provide untruthful answers before forfeiting benefits. The employer must also prove that the untruthful statements were prejudicial to it and that it provided the employee with statutory notice. La.R.S. 23:1208.1 applies when an employee is dishonest on an employer's medical questionnaire before the accident or injury. [ Resweber v. Haroil Const. Co., 94-2708, 94-3138 (La.9/5/95), 660 So.2d 7.] In Resweber v. Haroil Const. Co., the supreme court concluded that the legislature imposed forfeiture under La.R.S. 23:1208.1 strictly for when the employer suffers prejudice. An employer is prejudiced only when the false statement " directly relates to the medical condition for which a claim is made or affects the employer's ability to receive reimbursement from the second injury fund." La.R.S. 23:1208.1
. . . .
Because statutory forfeiture is a harsh remedy, its application must be strictly construed.

Thus, Gilchrist maintains the burden of proving three elements to avoid liability under the statute. " There must be an untruthful statement; prejudice to the employer; and compliance with the notice requirements of the statute." Wise v. J.E. Merit Constructors, Inc., 97-684, p. 7 (La. 1/2/98), 707 So.2d 1214, 1218; see [14-785 La.App. 3 Cir. 8] also Taylor v. G.W. Morgan Logging Co., Inc., 12-294 (La.App. 3 Cir. 10/3/12), 100 So.3d 341.

Notice - Gilchrist Medical Questionnaire

There was no dispute between the parties that Gilchrist gave the proper notice required by La.R.S. 23:1208.1 on the medical questionnaire presented to and completed by Mr. Lavalais.

Mr. Lavalais Answers - The Gilchrist Medical Questionnaire

The WCJ found, with respect to the questions on the Gilchrist medical questionnaire, that " the employer failed to establish forfeiture under Revised Statute 23:1208.1," and stated:

The questions with regard to his back and his neck were very innocuous questions, did he have neck pain or did he have back pain. And he did, but he responded, no, but such questions do not ever give employer information of previous permanent/partial disability known by the injured worker.
So, the Court concludes that there -- the employer has failed to establish forfeiture under Revised Statute 23:1208.1.

The Gilchrist medical questionnaire clearly provides that if an employee has answered " yes" by ...

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