APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT 3, PARISH OF CALCASIEU, NO. 13-00259. SAM L. LOWERY, WORKERS' COMPENSATION JUDGE.
James Edward Burks, Lake Charles, LA, COUNSEL FOR: Plaintiff/Appellant - Mark Edwards.
John Joseph Rabalais, Rabalais Unland, Covington, LA, COUNSEL FOR: Defendant/Appellee - Southeastern Freight Lines, Inc.
Michelle A. Breaux, Lake Charles, LA, COUNSEL FOR: Plaintiff/Appellant - Mark Edwards.
David Paul Bruchhaus, Mudd & Bruchhaus, Lake Charles, LA, COUNSEL FOR: Plaintiff/Appellant - Mark Edwards.
Court composed of Ulysses Gene Thibodeaux, Chief Judge, James T. Genovese, and David Kent Savoie, Judges.
[14-871 La.App. 3 Cir. 1]
THIBODEAUX, Chief Judge.
The claimant, Mark Edwards, appeals from an Office of Workers' Compensation (OWC) judgment granting summary judgment to the employer, Southeastern Freight Lines, Inc. (Southeastern), on the issue of fraudulent conduct based upon La.R.S. 23:1208. Finding no genuine issues of material fact or law, we affirm.
We must decide whether the trial court erred in granting summary judgment to the employer based upon the employee's violation of La.R.S. 23:1208.
FACTS AND PROCEDURAL HISTORY
Mr. Edwards was hired as a driver for Southeastern, a Lafayette company, in August of 2012. On October 24, 2012, he
alleges to have sustained an injury to his low back and legs while helping to unload a steel beam or cylinder. He characterized it as a pulled muscle, called his employer, and finished most of his deliveries.
Mr. Edwards was seen at the Baton Rouge General Hospital in the early morning hours on October 25, 2012, and was diagnosed with a lumbar region [14-871 La.App. 3 Cir. 2] strain and lumbago. He denied prior back problems. He did not return to work, and Southeastern began paying indemnity benefits.
On November 1, 2012, Mr. Edwards saw Dr. Adam Kennedy. Mr. Edwards denied previous back problems. Dr. Kennedy diagnosed lumbago. He reported that Mr. Edwards' x-rays demonstrated a fracture dislocation or spondylolisthesis. Dr. Kennedy also reported spondylosis at L5-S1.
On the morning of November 2, 2012, adjuster Selynthia Tate called Mr. Edwards at home and took a recorded statement. She asked Mr. Edwards about previous work related injuries, prior injuries from automobile accidents, and previous back problems, all of which Mr. Edwards denied. Weeks later, she received search results showing previous work-related automobile accidents and injuries and information regarding hospital treatment the day before the accident. Benefits were temporarily terminated in early December, and Mr. Edwards filed the first of three 1008 claims.
Mr. Edwards underwent physical therapy which made matters worse, and he developed more symptoms. On December 19, 2012, Mr. Edwards saw Dr. Neil Romero. Mr. Edwards denied previous back or leg symptoms before the subject accident. Dr. Romero reported x-ray and MRI results showing disc space collapse, disc protrusion, and advanced stenosis at L5-S1. He ordered a steroid [14-871 La.App. 3 Cir. 3] injection. Later, a second MRI was requested for the low back, and a cervical MRI was also being sought. These tests were not approved.
Mr. Edwards' benefits were permanently terminated in March, 2013. From October, 2012, through March, 2013, Southeastern paid Mr. Edwards disability benefits of $11,248.00 plus medical benefits. Southeastern filed a motion for summary judgment seeking forfeiture of benefits based upon misrepresentations willfully made for the purpose of obtaining workers' compensation benefits under La.R.S. 23:1208. Southeastern also sought restitution for the benefits that it had paid.
The only error assigned and argued in Mr. Edwards' appellate brief is the granting of the motion for summary judgment. For the following reasons, we affirm summary judgment in favor of Southeastern on the issue of the fraudulent misrepresentations, but we decline to grant the restitution omitted in the OWC judgment.
STANDARD OF REVIEW
When an appellate court reviews a trial court's judgment on a motion for summary
judgment, it applies the de novo standard of review, " using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate." Gray v. Am. Nat'l Prop. & Cas. Co., 07-1670, p. 6 (La. 2/26/08), 977 So.2d 839, 844 (quoting Supreme Servs. & Specialty Co., Inc. v. Sonny Greer, 06-1827, p. 4 (La. 5/22/07), 958 So.2d 634, 638). The motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions, and affidavits, if any, show that there is no genuine issue of material [14-871 La.App. 3 Cir. 4] fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B).
LAW AND DISCUSSION
Mr. Edwards contends that the OWC erred in finding that he violated La.R.S. 23:1208 and in granting summary judgment to Southeastern on that basis. Section 1208(A) states that it is unlawful for a person " to willfully make a false statement or representation" in order to obtain workers' compensation benefits. Section 1208(E) provides that " [a]ny employee violating this Section shall, upon determination by [the] workers' compensation judge, forfeit any right to compensation benefits under this Chapter." The only requirements for forfeiture of benefits under La.R.S. 23:1208 are: (1) a false statement or representation, (2) willfully made, and (3) for the purpose of obtaining workers' compensation benefits. Resweber v. Haroil Constr. Co., 94-2708 (La. 9/5/95), 660 So.2d 7. 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. Id.
In affirming the trial court's finding of fraud, the Louisiana Supreme Court in Resweber distinguished Section 1208 from Section 1208.1, interpreting the latter to apply to statements made on employment applications where no benefits are being sought. While Section 1208.1 is not applicable in this case, the court's distinctions are instructive in analyzing the criteria of Section 1208. Additionally, the claimant's attorney attempted to question the adjuster in this case on prejudice to the employer; thus, clarification will be beneficial. Under Section [14-871 La.App. 3 Cir. 5] 1208.1, there is no forfeiture of benefits unless the false answer relates to a medical condition for which benefits are claimed or it affects the employer's reimbursement from the second injury fund.
Unlike Section 1208, Section 1208.1 requires a showing of prejudice and a written notice on the application of the consequences of untrue answers. In explaining the notice requirement, the court stated that " the critical consideration of the legislature in requiring notice in Section 1208.1 and not in Section 1208, was not the type of false statement made, but rather the timing of the statement and the context in which it is made." Id. at 13. Where an untrue answer is given prior to a workers' compensation claim, in a context completely unrelated to workers' compensation, the person may be unaware of the consequences; thus, notice of the potential forfeiture is required under Section 1208.1. Id. However, no notice is required for false statements and ...