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Savannah v. Smithy's Supply/big 4 Trucking

Court of Appeals of Louisiana, First Circuit

May 31, 2019

ELAY SAVANNAH
v.
SMITHY'S SUPPLY/BIG 4 TRUCKING

          Appealed from the Office of Workers' Compensation Administration District 6 State of Louisiana Docket Number 17-03328 Honorable Robert W.Varnado, Jr., Workers' Compensation Judge Presiding

          Laurie W. Maschek Slidell, LA Counsel for Plaintiff/Appellant Elay Savannah

          Frank R. Whiteley Megan M. Richardson New Orleans, LA Counsel for Defendants/Appellee Smitty's Supply/Big 4 Trucking

          BEFORE: WHIPPLE, C.J., McCLENDON, WELCH, HIGGINBOTHAM, AND CRAIN, JJ.

          WHIPPLE, C.J.

         Elay Savannah ("claimant") appeals the decision of the Office of Workers' Compensation, District 6, granting summary judgment in favor of defendant Smitty's Supply/Big 4 Trucking, [1] and dismissing his claim with prejudice after finding that he made false statements for the purpose of obtaining workers' compensation benefits, and thereby forfeited his right to workers' compensation benefits under LSA-R.S. 23:1208. For the following reasons, we reverse.

         FACTS AND PROCEDURAL HISTORY

         Elay Savannah, a forty-five year-old man with a tenth-grade education, filed a disputed claim for compensation (Form 1008) with the Office of Workers' Compensation ("OWC") on May 31, 2017. The Form 1008 identified Smitty's Supply/Big 4 Trucking as his employer, and indicated that an accident occurred on April 5, 2017 at a NAPA store in Gretna, Louisiana. Claimant stated in the Form 1008 that he was pulling a manual pallet jack, which was loaded with 150 cases of oil, that he felt a pain across his chest, neck, and arms, and that he reported the incident to his dispatcher on April 12, 2017.

         Claimant was deposed and testified that, while he did not recall the exact date of his injury, he was injured while making a delivery to an auto parts store, which he thought was a NAPA in Gretna, Louisiana. According to claimant, he was delivering a large pallet of "cat litter"[2] and attempting to insert a manual pallet jack underneath the pallet when he discovered the center of the pallet had collapsed. Claimant stated that, in attempting to maneuver the pallet jack under the collapsed pallet, he "felt the pain run down the back part of [his] neck and [his] chest" and "thought [he] was having a heart attack." Claimant stated that he stood around for about twenty minutes after he felt the pain and that once it subsided, he resumed moving the pallet to the edge of the truck so that it could be unloaded. According to claimant, the pain was in the lower part of his chest, and he had numbness in his left arm, which claimant stated that he had never had before. He denied ever feeling as though he was having a heart attack before that day and ever receiving medical treatment for heart attack-like symptoms. Upon further questioning regarding whether he had ever been treated for heart-related problems or heart care, claimant stated that he had ripped his chest muscle while working out years ago, which caused him to feel as though he was having a heart attack.

         Regarding prior injuries, claimant testified that he had suffered a back injury while lifting a heavy box and felt a sharp pain go down his back. He stated that he sought and received medical treatment for this injury, including massages, electric lobes, and therapy. He also wore a back brace, and he was out of work for about a year as a result of this incident.

         Claimant further testified that he has a family doctor he visits for regular checkups, as he is on antidepressants, and the same family doctor saw him after the injury at issue in this case. Claimant also denied being treated for high blood pressure. Claimant stated that in the past ten years, he had been hospitalized twice out of state: once for pneumonia and once for a hernia repair. Claimant maintained that he had never received any medical treatment for symptoms similar to those experienced after the injury at issue.

         Claimant testified that after the NAPA incident, he did not report the heart attack-like pain he felt to anyone and did not talk to anyone about the injury, as the pain had completely gone away. As time passed, however, he would feel a little pain, but the pain was not so outrageous that he could not perform his job duties. A few weeks after the injury occurred, he felt a pain in his chest, which was similar to the pain that he previously felt after the injury, as well as tingling in his back and numbness in his little toes. At the time the pain returned, claimant was driving back to the work yard from a delivery in Jackson, Mississippi. On this occasion, the pain was in his chest and shooting down his left arm and into his ring and pinky fingers.

         Upon returning to the work yard and parking the truck, claimant spoke with his dispatcher, Michael Wheat. He told Mr. Wheat that he felt like he was having a heart attack so he was going to the hospital. After leaving the work yard and picking up his mother, claimant then went to the hospital. At the hospital, blood was drawn, and claimant was kept overnight for observation and additional tests to be performed the next day. According to claimant, he communicated with Mr. Wheat via text message while at the hospital, notifying his employer through Mr. Wheat that he was being kept overnight. Claimant additionally testified that he told Mr. Wheat in a text message that "they're keeping me because they somehow think I maybe injured myself when I was moving the cat litter."

         After his discharge from the hospital, claimant had follow-up appointments with a doctor at a heart and vascular clinic, who told him that it was not a heart attack, but could be nerve damage. This doctor directed claimant to his family doctor, who saw claimant a few days later. Ultimately, claimant's family doctor recommended that he receive acupuncture treatment, but he never received the treatment due to payment issues.

         On October 25, 2017, a month after claimant was deposed, defendant filed its pretrial statement in advance of the trial date in which defendant set forth the allegation that claimant made willful misrepresentations for the purpose of obtaining workers' compensation benefits. Thereafter, on November 22, 2017, claimant circulated an errata sheet, in which he made corrections to his prior deposition testimony. On the eve of the November 28, 2017 trial, an unopposed motion to continue was filed by claimant, which the OWC granted.

         Subsequently, defendant moved for summary judgment, contending that there was no genuine issue of material fact remaining as the facts undisputedly showed that claimant committed fraud under LSA-R.S. 23:1208 by making willful misrepresentations for the purpose of obtaining workers' compensation benefits. Claimant opposed the motion. On February 15, 2018, the motion for summary judgment was heard by the OWC, which granted summary judgment in favor of defendant and dismissed the matter with prejudice. This ruling was reduced to a written judgment and signed on March 12, 2017.

         Claimant then filed the instant appeal of the March 12, 2017 judgment, contending that the OWC erred in finding that no genuine issues of material facts remained in dispute, and in concluding that the defendant carried its burden of establishing that there were no genuine material ...


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