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Lovas v. Gallagher Bassett Services, Inc.

Court of Appeals of Louisiana, Fourth Circuit

March 20, 2019

RYAN LOVAS
v.
GALLAGHER BASSETT SERVICES, INC. AND TURNER INDUSTRIES GROUP, LLC

          APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION NO. 17-03974, DISTRICT "SEVEN" Honorable Shannon Bruno Bishop, Workers Compensation Judge

          Charlsey Wolff Michael W. Margiotta, Jr. THE LAW OFFICE OF WOLFF & WOLFF Charlsey Wolff Michael W. Margiotta, Jr. THE LAW OFFICE OF WOLFF & WOLFF

          Caitlin B. Carrigan Charles J. Duhe, Jr. TAYLOR WELLONS POLITZ & DUHE, APLC COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Dale N. Atkins

          SANDRA CABRINA JENKINS JUDGE.

         This is a workers' compensation case. Claimant Ryan Lovas appeals the June 21, 2018 judgment of the Workers' Compensation Judge ("WCJ") finding that Mr. Lovas had forfeited his entitlement to additional compensation benefits from his former employer, Turner Industries Group, LLC ("Turner"). We conclude that the WCJ was not manifestly erroneous in finding that Mr. Lovas willfully made a false statement or representation for the purpose of obtaining benefits or payments, in violation of La. R.S. 23:1208; and that he failed to respond truthfully to Turner's questionnaire about his previous medical history, in violation of La. R.S. 23:1208.1. We also conclude that Turner did not waive its affirmative defense of fraud. Accordingly, we affirm the WCJ's judgment dismissing Mr. Lovas's workers' compensation claim, with prejudice.

         FACTUAL AND PROCEDURAL BACKGROUND

         On June 30, 2017, Mr. Lovas filed a Disputed Claim for Compensation ("Claim") due to a work-related injury he sustained on or about July 7, 2016. The accident is not disputed. Mr. Lovas was employed as a machinist at Turner, which was a subcontractor at the Phillips 66 Belle Chasse facility ("Phillips 66"). Mr. Lovas claimed that his shirt became caught when he was bushing in a lathe to disassemble a pump assembly. According to Mr. Lovas, because there were no safety guards on the machine, his shirt jerked him into the machine, with the jerking motion causing his right ankle to twist. Mr. Lovas said that when he was jerked around, he heard a pop in his ankle, and his left shoulder was pulled forcefully against the machine. In his Claim, Mr. Lovas asserted that he injured his left arm, left shoulder, back, right ankle, right leg, and left foot.

         After the accident, Mr. Lovas was taken by a Phillips 66 ambulance to an on-site nurse, who put Mr. Lovas's ankle in a cardboard splint. Mr. Lovas was then transported by Plaquemines EMT to Ochsner emergency room in Gretna. According to Mr. Lovas, the emergency room ("ER") physician tried to reset the bones and placed Mr. Lovas's right leg in a splint. He was discharged from the ER at 9:00 p.m., with a referral to see an orthopedic surgeon. The next day, Mr. Lovas saw Dr. Douglas Lurie, an orthopedist recommended by Turner. Dr. Lurie diagnosed Mr. Lovas with a right ankle dislocation, right tib-fib syndesmotic disruption/dislocation, posterior malleolar fracture and proximal fibular fracture.

         On July 8, 2016, Dr. Lurie performed an open reduction, internal fixation surgery on Mr. Lovas's right leg at Touro Infirmary. Dr. Lurie released Mr. Lovas to return to work on the same date as the surgery. After the surgery, a Turner employee picked up Mr. Lovas at home and drove him to work every day until he was released to drive. Mr. Lovas stated that he did not work, but took pain medication and sat in his wheel chair all day until it was time to be driven home. Turner continued to pay Mr. Lovas his full wages, and he received rehabilitation over the course of several months until he returned to full-duty work at his pre-injury position with Turner.

         On January 9, 2017, a Phillips 66 safety inspector noticed that Mr. Lovas was failing to use the safety guard on the lathe machine, which resulted in Mr. Lovas being terminated from his employment with Turner. Mr. Lovas received unemployment benefits until he was hired as a machinist with Simmons Plating and Grinding on February 7, 2017. On October 13, 2017, Mr. Lovas was laid off from this position due, in part, to a reduction in the workforce.

         On June 29, 2017, nearly a year after the accident, Mr. Lovas reported to Dr. Lurie that he was experiencing back pain and "foot drop, "[1] which Mr. Lovas attributed to the July 7, 2016 accident. Dr. Lurie evaluated him and released him to return to work. On that same day, Mr. Lovas filed his Claim with the Office of Workers' Compensation ("OWC"). Turner filed an Answer to the Claim, asserting the affirmative defense of fraud under the workers' compensation statutes.

         The WCJ held a trial on the merits on March 22, 2018. In its June 21, 2018 judgment, the WCJ decreed that, although Mr. Lovas injured his right ankle as a result of the work-related accident on July 7, 2016, Mr. Lovas suffered from pre-existing back injuries and did not meet his burden of showing a causal connection between the work accident and his current complaints of back pain and foot drop. The WCJ also found that Mr. Lovas made false statements for the purpose of obtaining workers' compensation benefits in violation of La. R.S. 23:1208, and false statements in a medical questionnaire that prejudiced the employer's rights under La. R.S. 23:1208.1. The WCJ ruled that Mr. Lovas forfeited his right to any additional workers' compensation benefits due to his violations of La. R.S. 23:1208 and 23:1208.1. The WCJ dismissed the action, with prejudice. Mr. Lovas appealed.

         DISCUSSION

         Standard of Review

         We review the factual findings of the WCJ under the manifest error/clearly wrong standard of review. Dow v. Chalmette Rest., Ltd., 15-0336, p. 8 (La.App. Cir. 5/18/16), 193 So.3d 1222, 1228. "However, 'when legal error interdicts the fact-finding process in a workers compensation proceeding,' our review of those findings is conducted de novo." Id. (quoting Tulane Univ. Hosp. & Clinic v. Lockheed Martin Corp., 11-0179, p. 3 (La.App. 4 Cir. 6/29/11), 70 So.3d 988, 990). "We likewise review the WCJ's legal conclusions de novo." Dow, 15-0336, p. 8, 193 So.3d at 1228.

         In this appeal, Mr. Lovas lists two assignments of error.

         Assignment of Error No. 1

         In his first assignment of error, Mr. Lovas contends that the WCJ committed legal error in finding that Mr. Lovas committed fraud because Turner failed to allege fraud in its Pre-trial Statement.

         Mr. Lovas concedes that the WCJ, in its written reasons for judgment, noted that Turner filed an Answer to Mr. Lovas's Claim in ...


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