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 By: D. Randolph Street, Counsel for Appellant.
NAPOLITANO, GUILBEAU, RULL & FRIEMAN, By: Keith E.
Pittman, Counsel for Appellee.
WILLIAMS, DREW, and GARRETT, JJ.
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.
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.
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.
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
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.
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.
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.