APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION - # 2, PARISH OF RAPIDES, NO. 09-05255. JAMES L. BRADDOCK, WORKERS' COMPENSATION JUDGE.
George Arthur Flournoy, Flournoy & Doggett, Alexandria, LA, COUNSEL FOR PLAINTIFF/APPELLEE: Cecilia Rachal.
R. O'Neal Chadwick, Jr., Gregory B. Odom, II, Chadwick Law Firm, LLC, Alexandria, LA, COUNSEL FOR DEFENDANT/APPELLANT: Wal-Mart Corporation.
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell, and Shannon J. Gremillion, Judges. GREMILLION, Judge, concurs in part and dissents in part and assigns written reasons.
[15-97 La.App. 3 Cir. 1]
Wal-Mart Corporation appeals a judgment of the Office of Workers' Compensation which found it liable to Cecilia Rachal for supplemental earnings benefits in addition to penalties and attorney fees. Additionally, the workers' compensation judge
denied Wal-Mart's claim for forfeiture of benefits due to fraud pursuant to La.R.S. 23:1208.
Cecilia Rachal was employed with Sam's Club in Alexandria as an advantage coordinator. An advantage coordinator sets up appointments with different companies to sell Sam's Club memberships. In 2009, the Alexandria Sam's was remodeling its store. During the remodeling, Ms. Rachal was in a small temporary office space with other coworkers. On June 10, 2009, Ms. Rachal was walking between a coworker at her desk and a filing cabinet when she fell. After the fall, Ms. Rachal had pain in her head, neck, back, right hand, and both ankles. She was assisted to a wheelchair. Her ex-husband picked her up at Sam's and took her to St. Frances Cabrini Hospital. Following a check-up in the emergency room, it was recommended that she see Dr. Gordon Webb.
Ms. Rachal saw Dr. Webb on June 12, 2009, who he determined that Ms. Rachal was unable to work. At the next visit on June 19, 2009, Dr. Webb determined that Ms. Rachal was able to return to regular work duty, but Ms. Rachal did not agree. It was at this time she hired an attorney, who filed a disputed claim for compensation on June 25, 2009. Ms. Rachal began receiving temporary total disability benefits on June 26, 2009. Her attorney referred her to Dr. Clark Gunderson, an orthopedic surgeon.
[15-97 La.App. 3 Cir. 2] Dr. Gunderson first saw Ms. Rachal on July 1, 2009. She related to him that she was experiencing headaches, neck pain radiating into both shoulders, and lower back pain radiating into both legs. Ms. Rachal also told Dr. Gunderson that she had been having low back pain since she was fifteen years old but had been able to work. Since this accident, she has not been able to work. Dr. Gunderson diagnosed Ms. Rachal with a lumbar-straining-type injury superimposed on degenerative disc disease. A lumbar MRI on August 7, 2009, indicated spinal stenosis. Dr. Gunderson stated that the spinal stenosis was caused by a protrusion of the L3-4 disc and spurring in Ms. Rachal's lower back. Dr. Gunderson recommended a lumbar epidural steroid injection and referred her for physical therapy. Even after conservative treatment, Ms. Rachal continued to have problems, so Dr. Gunderson recommended a lumbar laminectomy from L2-L5 to decompress the nerve roots.
Trial regarding Ms. Rachal's need for surgery was originally set for August 10, 2010. Prior to trial, Wal-Mart authorized the surgery, and surgery was performed on July 26, 2010. Trial on the remaining issues was held on June 3, 2014. The workers' compensation judge (WCJ) issued oral reasons for judgment on August 7, 2014.
The WCJ denied Wal-Mart's claims for forfeiture of benefits due to fraud under La.R.S. 23:1208 and determined that Ms. Rachal was entitled to supplemental earnings benefits (SEBs) at a zero earning capacity. The WCJ further found that the surgery performed by Dr. Gunderson was necessitated by Ms. Rachal's work accident. Additionally, the WCJ awarded Ms. Rachal penalties in the amount of $8,000.00 as the result of Wal-Mart's payment of indemnity benefits at the incorrect rate and its failure to pay medical travel expenses on three different [15-97 La.App. 3 Cir. 3] occasions. Wal-Mart was also ordered to pay attorney fees in the amount of $15,000.00. Wal-Mart then filed the present appeal asserting several assignments of error.
FORFEITURE OF BENEFITS
Wal-Mart first claims that the WCJ erred in failing to find that Ms. Rachal
forfeited her right to workers' compensation benefits due to her willful misstatements and misrepresentations over the lifespan of the workers' compensation claim. It claims that her trial and deposition testimony is full of inconsistencies and misstatements.
Louisiana Revised Statutes 23:1208(A) provides that a claimant shall forfeit her workers' compensation benefits when the employer establishes that: (1) there is a false statement or representation; (2) which was willfully made; (3) for the purpose of obtaining or defeating any benefit or payment. " Forfeiture of workers' compensation is a harsh remedy, and statutory forfeiture must be strictly construed. An employer has the burden of proving each element within the statute, and the lack of any one of the elements is fatal to an employer's avoidance of liability." Our Lady of the Lake Reg. Med. Ctr. v. Mire, 13-1051, p. 6 (La.App. 1 Cir. 2/18/14), 142 So.3d 52, 56. The determination by the WCJ of whether a worker has willfully made a false statement or representation for the purpose of obtaining benefits is question of fact ...