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Ehrman v. Graphic Packaging International, Inc.

Court of Appeals of Louisiana, Second Circuit

May 17, 2017

BOBBY EHRMAN Plaintiff-Appellant
v.
GRAPHIC PACKAGING INTERNATIONAL, INC. Defendant-Appellee

         Appealed from the Office of Workers' Compensation, District 1-E Parish of Ouachita, Louisiana Lower Court Case No. 14-08271, Brenza Irving Jones Workers' Compensation Judge.

          STREET & STREET By: D. Randolph Street, Counsel for Appellant.

          JUGE, NAPOLITANO, GUILBEAU, RULL & FRIEMAN, By: Keith E. Pittman, Counsel for Appellee.

          Before WILLIAMS, DREW, and GARRETT, JJ.

          WILLIAMS, J.

         The claimant, Bobby Ehrman, appeals a judgment dismissing his claims for worker's compensation benefits. The Worker's Compensation Judge (WCJ) found that claimant had forfeited his right to receive benefits. For the following reasons, we reverse, render and remand.

         FACTS

         On February 2, 2014, Bobby Ehrman was injured while working at Graphic Packaging International, Inc. ("Graphic"), located in West Monroe. Ehrman injured his left shoulder and neck when lifting a bundle of cartons from a stack. He reported the accident and saw the company nurse, who sent him to St. Francis Occupational Medicine Clinic ("OccuMed"). Based on his symptoms, Ehrman was initially diagnosed with a left shoulder injury and was restricted to light duty with a limitation of lifting no more than 15 pounds with his left arm. Ehrman continued working full time in a light-duty position at Graphic. During this time, the employer paid Ehrman supplemental earnings benefits (SEB) because he was unable to earn 90% of his pre-injury wage in the light-duty job.

         In April 2014, an MRI showed herniated discs in Ehrman's neck. He was referred to a neurosurgeon, Dr. Bernie McHugh, who ordered a CT/myelogram. In May 2014, Graphic stopped paying SEB. In September 2014, Dr. McHugh recommended that Ehrman have cervical fusion surgery at three levels and continued the light-duty work restrictions. In October 2014, Ehrman was seen by Dr. Donald Smith, who was chosen by the employer. Dr. Smith agreed with the need for surgery. The employer did not respond to Dr. McHugh's request for approval of the surgery, effectively denying the request.

         The claimant, Bobby Ehrman, filed a Form 1009, Disputed Claim for Medical Treatment, seeking approval of the surgery. After a review, the Medical Director found that the surgery was not necessary based on the clinical findings and diagnostic tests. Claimant then filed a disputed claim seeking payment of SEB, approval of the recommended surgery and resolution of an issue regarding calculation of the average weekly wage (AWW).

         After trial, the WCJ issued oral reasons for judgment. The WCJ found that claimant had proven that the recommended surgery was necessary and that he was entitled to SEB, but that the vacation time sold back to the employer should not be included in his AWW. However, the WCJ further found that claimant had misrepresented his physical limitations and forfeited his right to compensation. The WCJ rendered judgment dismissing claimant's claim for benefits. The claimant appeals the judgment.

         DISCUSSION

         The claimant contends the WCJ erred in finding that he forfeited his right to receive workers' compensation benefits. Claimant argues he is entitled to receive compensation benefits because he did not wilfully make a false statement to obtain benefits.

         It shall be unlawful for any person to willfully make a false statement or representation for the purpose of obtaining or defeating any workers' compensation benefit or payment. La. R.S. 23:1208. Any employee who violates this section shall, upon determination by the workers' compensation judge, forfeit any right to compensation benefits. La. R.S. 23:1208(E). This statute authorizes forfeiture of benefits upon proof that (1) there is a false statement or representation; (2) willfully made; (3) for the purpose of obtaining or defeating any benefit or payment. Resweber v. Haroil Const. Co., 94-2708 (La. 9/5/95), 660 So.2d 7; Franklin v. HealthSouth, 41, 458 (La.App. 2 Cir. 9/20/06), 940 So.2d 83. Forfeiture is a harsh remedy and must be strictly construed. Franklin, supra; Reynolds Indust. Contractors v. Fox, 41, 051 (La.App. 2 Cir. 6/28/06), ...


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