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Johnson v. Chesterton

Court of Appeals of Louisiana, Third Circuit

February 2, 2017

CHARLIE JOHNSON
v.
A. W. CHESTERTON, ET AL.

         APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION - # 3 PARISH OF CALCASIEU, NO. 15-06182 CHARLOTTE A. L. BUSHNELL, WORKERS' COMPENSATION JUDGE.

         AFFIRMED AS AMENDED.

          George E. Escher Sheryl Story, COUNSEL FOR DEFENDANTS/APPELLANTS: A. W. Chesterton National Fire Ins. Co. of Hartford.

          Kevin Louis Camel Cox, Cox, Filo, Camel & Wilson, LLC, COUNSEL FOR PLAINTIFF/APPELLEE: Charlie Johnson.

          Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and John E. Conery, Judges.

          BILLY HOWARD EZELL JUDGE.

         A.W. Chesterton and its workers' compensation insurance carrier, CNA, appeal the decision of the workers' compensation judge below finding that Charlie Johnson did not commit fraud under La.R.S. 23:1208. For the following reasons, we hereby affirm the decision of the workers' compensation judge.

         On December 13, 2012, Mr. Johnson suffered a work-related accident while picking up a box of parts. Neither his injury nor benefits were disputed at trial. Rather, the sole issue before the workers' compensation judge was whether or not Mr. Johnson committed fraud under La.R.S. 23:1208 by failing to note the proceeds from the sale of a horse on monthly 1020 forms dealing with income from any business enterprise. Mr. Johnson had marked "no" on his monthly questionnaire to questions which read (emphasis in original):

2. For the period covered in this report, did you receive a salary, wage, sales commission, or payment, including cash, of any kind?
3. For the period covered in this report, were you self-employed or involved in any business enterprise? These include but are not limited to farming, sales work, operating a business (even if the business lost money), child care, yard work, mechanical work, or any type of family business?
4. Did you perform any volunteer work during the period covered in this report?

         In December 2014, Mr. Johnson sold a horse for $3, 500. Chesterton terminated Mr. Johnson's benefits, claiming that this sale was part of a business enterprise and that Mr. Johnson committed fraud when he denied being part of any business on his 1020 forms. Mr. Johnson then instituted the current claim against Chesterton. After a trial on the merits, the workers' compensation judge found that Chesterton failed to carry its burden of proof as to the fraud defense, awarded Mr. Johnson supplemental earnings benefits at a zero rate of earnings, awarded penalties in the amount of $8, 000 for the termination of benefits, as well as attorney fees in the amount of $10, 000. From that decision, Chesterton appeals. Mr. Johnson answers that appeal, seeking additional attorney fees for work done on appeal.

         Chesterton asserts two assignments of error. It claims that the workers' compensation judge erred in denying its La.R.S. 23:1208 fraud claims against Mr. Johnson, and that the workers' compensation ...


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