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Lebouef v. RPC, Inc.

Court of Appeals of Louisiana, Third Circuit

April 12, 2017



          Mark L. Riley The Glenn Armentor Law Corporation, LA COUNSEL FOR PLAINTIFF/APPELLANT: Jeremy J. LeBouef

          Scott F. Higgins Jeansonne and Remondet, COUNSEL FOR DEFENDANT/APPELLEE: RPC, Inc., d/b/a Cudd Energy Services

          Court composed of Marc T. Amy, Billy Howard Ezell, and Shannon J. Gremillion, Judges.

          MARC T. AMY JUDGE

         The workers' compensation claimant sought benefits from his employer in connection with injuries he allegedly sustained in two work-related accidents. The employer defended the claims by noting that the claimant's medical records indicated that the second accident was caused by a possible opiate overdose and arguing that the claimant's alleged injuries predated both accidents. The employer also filed a reconventional demand against the claimant, alleging that the claimant had willfully made false statements and misrepresentations in order to obtain benefits, and that accordingly, the employer was due restitution pursuant to La.R.S. 23:1208. The workers' compensation judge dismissed both claims as well as the employer's claim for restitution. Both parties appeal these consolidated matters. For the following reasons, we affirm.

         Factual and Procedural Background

         According to the record, on February 12, 2015, Jeremy J. LeBouef filed two disputed claims for compensation (Form 1008s) against his employer, RPC, Inc. d/b/a Cudd Energy Services (Cudd). The first Form 1008, bearing Office of Workers' Compensation (OWC) docket number 15-00967, stemmed from an alleged accident that occurred on March 6, 2014, in which the claimant asserted that, while attending a safety meeting at his employer's Broussard office, the chair in which he was sitting broke, "causing him to fall and injure his thoracic and lumbar spine."

         The second Form 1008, bearing OWC docket number 15-00970, stemmed from an alleged accident that occurred in Pennsylvania on January 23, 2015, in which the claimant asserted that, while loading his truck to travel from the bunkhouse to a job site, he slipped on icy ground and fell, hitting his head. He testified that he has no memory of what occurred after the fall and that he only remembers waking up in the hospital. He further alleged that he was unconscious for approximately three hours until a coworker found him in the bunkhouse and that he suffered "head injuries, an injury to the hip leading to necrosis with hip replacement, and an aggravation of the prior back injury from the March 6, 2014 accident."

         Cudd denied liability for both claims.[1] Upon Cudd's motion, the workers' compensation judge consolidated the claims. By an Amended Answer and Reconventional Demand, Cudd asserted that the claimant "violated [La.R.S.] 23:1208 by willfully making misrepresentations and false statements about his past history of medical treatment, how the accidents occurred, and his injuries from the accidents[, ]" and that "such misrepresentations and false statements were made intentionally and for the purpose of obtaining worker's [sic] compensation benefits." Accordingly, Cudd sought forfeiture of benefits paid, as well as restitution of costs and attorney fees.

         At trial, Cudd asserted that the 2015 accident resulted not from slipping on icy ground, but from an opiate overdose, such that the claimant should be barred from receiving compensation per La.R.S. 23:1081.[2] In support of this assertion, Cudd pointed to records from emergency medical services and hospital records immediately following the accident. The hospital records provide an assessment of "[u]nresponsiveness and hypothermia in the setting of suspected narcotic overdose" and indicate that there was "[n]o established cause albeit with suspicion of medication overdose as a basis for present circumstance." The records further indicate that the claimant regained consciousness after being administered Narcan, which, according to the deposition testimony of Cudd's emergency medicine expert, Dr. Michael Odinet, is "a reversal agent for opioids -- opiates." Dr. Odinet also testified that Narcan "won't do anything" unless the person is suffering from an opiate overdose. Additionally, emergency medical services records indicate that the claimant was "unresponsive, " that his "pupils were noted as constricted" and that he had "red 'frothy' liquid coming from his mouth[, ]" symptoms which Dr. Odinet described as consistent with opiate overdose.

         The hospital records further indicate that his urine tested positive for opiates, and that emergency medical services had reported that he had a "fresh needle mark to the left forearm[, ]" but that the claimant denied "injecting himself with anything" and denied drug use. When asked at trial why the hospital records indicated that he had opiates in his system at the time of the accident, he replied, "I think I took one earlier in the day[, ]" thereafter clarifying that he had taken the pain medication Norco, for which he had a prescription, because he was "in pain." When asked at trial why the hospital records indicated that there had been a fresh injection mark in his arm, he stated that he had "never injected any medications before" and that he had "splatter marks" on his arms from welding.

         Dr. Odinet, who did not personally examine the claimant but evaluated his medical records, testified that he believed an opiate overdose was "definitely, the most likely cause" of the 2015 accident. He pointed out in his testimony that, despite the claimant's allegation that he had a "knot" on his head, none of the hospital records indicate that the claimant suffered any head injuries, as a physical examination of his head was described as "atraumatic[, ]" and two CT scans taken at the hospital following the accident revealed no abnormalities. He also testified that he believed the claimant's medical records revealed a "pattern of drug seeking behavior[, ]" as he saw two pain management doctors concurrently, and in April 2013, he had a Norco prescription from each doctor.

         In addition to its intoxication defense, Cudd further asserted that the claimant's alleged injuries pre-existed both alleged accidents. In support of this assertion, Cudd presented medical records predating the 2014 accident, dating back to 2004, indicating a history of the claimant complaining of back and/or hip pain. Cudd stated that the records revealed that the claimant saw a pain management doctor for "chronic and daily low back pain" "nearly every month between March 2013 and the March 2014 work accident[, ]" and that notably, the claimant met with another pain management doctor the day before the 2014 accident and was sent home from work that day due to low back pain. The claimant did not dispute the accuracy of these records during cross-examination, admitting that he had sought treatment for "some back problems" prior to the 2014 accident. He further stated that his back pain "got extremely worse" after the 2014 accident, but then "started to" improve. However, he testified that after the 2015 accident, his back pain again "got extremely worse" and that he "could barely walk[, ]" rendering him unable to work until his doctors cleared him for work in October 2015.[3] However, the record indicates that a doctor that he saw in Pennsylvania, Dr. Steven Renzi, released him for full duty on January 27, 2015.

         Regarding his alleged hip injury, orthopedic surgery expert Dr. Harold Granger, who independently examined the claimant in September 2015, testified that the claimant suffered from necrosis of the femur, but that he did not believe that the condition was related to either work accident because it is "not something that shows up acutely after a fall. This is something that has been there a while." Moreover, the claimant's treating physician for his hip, Dr. Scott Yerger, stated in an operative report dated May 19, 2015 that the claimant "underwent left total hip arthroplasty . . . performed secondary to avascular necrosis, likely due to alcohol usage." This report further states that "today [the claimant] eluded [sic] to severe alcohol usage that prior to this he has not been forthcoming with[, ]" and that Dr. Yerger "expressed the need for him to seek alcohol and drug counseling[.]"

         By oral ruling, the workers' compensation judge dismissed both of the claimant's disputed claim forms, finding that the claimant "failed to meet his burden of proof that he sustained an accident on January 23, 2015." Additionally, the workers' compensation judge dismissed Cudd's reconventional demand, finding that Cudd "failed to meet their burden of proof that Mr. LeBouef violated the provisions of the Louisiana Revised Statute[s] 23:1208."

         The claimant appeals, [4] assigning as error the following:

1. The trial court erred in finding Mr. LeBouef failed to meet his burden of proof regarding the January 23, 2015 accident, and dismissing the claims raised in the second Form[ ]1008.
2. The trial court erred in finding Mr. LeBouef's injuries were not caused by or aggravated by the January ...

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