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Brown v. Alsco, Inc.

Court of Appeals of Louisiana, First Circuit

June 29, 2017


         Appealed 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

          Ted Williams Baton Rouge, LA Attorney for Appellee Plaintiff - Randolph Brown.

          George J. Nalley, Jr. Andrew J. Miner Metairie, LA Attorneys for Appellant Defendant - Alsco, Inc.


          WELCH, J.

         In this 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).


         Mr. 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 treatment.

         In 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.

         On 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.

         Around 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.

         A trial 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. 23:1208.[1]


         Louisiana 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. ...

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