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
composed of Judge Rosemary Ledet, Judge Sandra Cabrina
Jenkins, Judge Dale N. Atkins
CABRINA JENKINS JUDGE.
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.
AND PROCEDURAL BACKGROUND
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.
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.
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.
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.
29, 2017, nearly a year after the accident, Mr. Lovas
reported to Dr. Lurie that he was experiencing back pain and
"foot drop, " 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.
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.
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.
appeal, Mr. Lovas lists two assignments of error.
of Error No. 1
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
Lovas concedes that the WCJ, in its written reasons for
judgment, noted that Turner filed an Answer to Mr.
Lovas's Claim in ...