from the Office of Workers' Compensation In and for the
Parish of St. Tammany, Louisiana District 06, No. 15-06513
Honorable Gwendolyn F. Thompson, Judge
Williams Baton Rouge, LA Attorney for Appellee Plaintiff -
J. Nalley, Jr. Andrew J. Miner Metairie, LA Attorneys for
Appellant Defendant - Alsco, Inc.
BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
workers' compensation dispute, the employer, Alsco, Inc.
("Alsco"), and its workers' compensation claims
administrator, Alternative Service Concepts, appeal a
judgment rendered in favor of the employee, Randolph Brown,
which found, among other things, that Mr. Brown had not
violated La. R.S. 23:1208. Finding no error in the factual
findings made by the workers' compensation judge
("WCJ"), we affirm the judgment and issue this
memorandum opinion in compliance with Uniform Rules-Courts of
Appeal, Rule 2-16.1(B).
Brown was employed as a route sales driver for Alsco. On or
about October 1, 2014, Mr. Brown was unloading some dirty
linen hampers from his work truck when he felt a sudden and
sharp pain to his back, neck, and shoulders. According to Mr.
Brown, he continued to work that day hoping that his pain
would subside. However, the next day Mr. Brown claimed that
he woke up in serious pain; therefore, he sought medical
treatment and reported the accident and injury to his
employer. Following this incident, on October 6, 2014,
Alternative Service Concepts commenced paying workers'
compensation indemnity benefits and authorized medical
November 2014, Mr. Brown had an MRI of his right shoulder,
which revealed a tear in his rotator cuff. The rotator cuff
tear was surgically repaired in February 2015 by Dr. Matti
Palo, an orthopedic surgeon. In December 2014, Mr. Brown was
evaluated by Dr. Rand Voorhies, a neurosurgeon, for his neck
pain, and was diagnosed with having a right-sided disc
herniation at C4-5. After several months of conservative
treatment, in July 2015, Dr. Voorhies believed that Mr. Brown
was a candidate for an anterior cervical discectomy and
fusion and that he was suffering from a disc osteophyte
complex at C4-5. In August 2015, Mr. Brown saw Dr. Karen
Ortenberg, a physical medicine and rehabilitation specialist,
who provided work restrictions for Mr. Brown.
September 29, 2015, Alsco notified Mr. Brown that it was
terminating his workers' compensation indemnity and
medical benefits effective October 4, 2015, on the basis that
Mr. Brown had allegedly committed fraud. In response, on
October 5, 2015, Mr. Brown filed a disputed claim for
compensation against Alsco and Alternative Service Concepts
asserting claims with respect to the failure to authorize
medical treatment; the improper termination of workers'
compensation wage benefits; Mr. Brown's disability
status; and penalties, attorney fees, costs, and interest for
the arbitrary and capricious termination of benefits. Alsco
answered the suit and raised the affirmative defense of
fraud, essentially claiming that Mr. Brown had knowingly and
willfully made false statements and/or representations
regarding his medical condition and limitations to both
physicians and Alsco to obtain workers' compensation
benefits in violation of La. R.S. 23:1208.
the beginning of January 2016, and after Mr. Brown's
workers' compensation benefits were terminated, he
obtained a part-time light duty job at the Pelican Athletic
Club working in the locker room doing laundry and folding
towels. Several months later, he was promoted to a tennis
court technician, which was a full-time position. However,
this position required him to perform some activities that
were outside of his restrictions. Due to family issues, Mr.
Brown quit this job in May 2016, at which time he was earning
$10.00 per hour.
was held before the WCJ on June 6 and 7, 2016. The issues
presented at trial were: whether Mr. Brown had an accident
within the course and scope of his employment with Alsco on
October 1, 2014; whether Mr. Brown had violated La. R.S.
23:1208 (or committed fraud); whether Mr. Brown was entitled
to workers' compensation indemnity and medical benefits;
whether Mr. Brown was entitled to penalties and attorney fees
from Alsco; and whether Mr. Brown was entitled to judicial
interest and costs of litigation. On August 29, 2016, the WCJ
rendered and signed a judgment, finding in favor of Mr. Brown
on most of the issues presented for trial. The WCJ
specifically found that Alsco did not carry its burden of
proving that Mr. Brown violated La. R.S. 23:1208 by willfully
making misrepresentations and false statements to Alsco
and/or his treating physicians for the purpose of obtaining
workers' compensation benefits. From this judgment, Alsco
has appealed, challenging the WCJ's determinations with
respect to whether Mr. Brown violated La. R.S.
Revised Statutes 23:1208(A) provides that "[i]t shall be
unlawful for any person, for the purpose of obtaining or
defeating any benefit or payment under the provisions of this
Chapter, either for himself or for any other person, to
willfully make a false statement or representation." An
employee violating La. R.S. 23:1208 shall, upon determination
by a WCJ, forfeit any right to workers' compensation
benefits. La. R.S. 23:1208(E). The three requirements for the
forfeiture of the right to workers' compensation benefits
under La. R.S. 23:1208 are: (1) there is a false statement or
representation; (2) it is willfully made; and (3) it is made
for the purpose of obtaining or defeating any benefit or
payment. Our Lady of the Lake Regional Medical Center v.
Mire, 2013-1051 (La. App. 1stCir. ...