ELMER CREEL, JR.
AMERICAN PRIDE, INC.
Appealed from the Office of Workers' Compensation In and
for the Parish of Washington State of Louisiana Docket No.
17-04621 The Honorable Robert Varnado, Presiding
R. Nugent Bogalusa, Louisiana Counsel for Plaintiff/Appellant
Elmer Creel, Jr.
E. Truitt Covington, Louisiana Counsel for Defendant/Appellee
American Pride, Inc.
BEFORE: WELCH, CHUTZ, AND LANIER, JJ.
Elmer Creel, Jr., seeks review of a judgment rendered by the
Office of Workers' Compensation (OWC), decreeing that he
violated the provisions of La. R.S. 23:1208 and, as such,
forfeited his right to collect medical and indemnity
benefits. For the following reasons, we affirm the judgment.
31, 2017, Mr. Creel filed a disputed claim for compensation
against defendant, American Pride, Inc. ("American
Pride"), regarding what he alleged was a work-related
motor vehicle accident that he was involved in on May 18,
2017. Mr. Creel alleged that American Pride did not pay him
any indemnity benefits or authorize any medical treatment
following the accident. He maintained that said actions were
arbitrary and capricious, thus also entitling him to
penalties, attorney fees, and judicial interest. After
hearing the matter, the OWC hearing officer rendered judgment
on July 24, 2018, in favor of American Pride and against Mr.
Creel, finding that Mr. Creel made willful and false
statements for the purpose of obtaining workers'
compensation benefits and, therefore, forfeited his
entitlement to workers' compensation benefits in
accordance with La. R.S. 23:1208.
appeal by Mr. Creel followed. Mr. Creel alleges the OWC
hearing officer erred in not awarding him workers'
compensation benefits in the form of medical, temporary total
disability benefits, and penalties and attorney fees in
connection with his work-related accident on May 18, 2017.
Mr. Creel further asserts that the OWC hearing officer erred
in finding that he made intentional false statements
regarding his medical and accident history for the purpose of
obtaining workers' compensation benefits. Mr. Creel
acknowledges that although he was a "poor historian and
simply forgot about his history beyond the 2007 accident,
" he never tried to hide or conceal any information
about that accident and "expressly stated in his
deposition that he ... still [had] pain in his neck and back
if he overdid it at work in the years after the 2007
accident." Thus, he maintains, American Pride failed to
meet its burden of proving La. R.S. 23:1208 fraud in this
to La. R.S. 23:1208(A), "[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 an OWC hearing
officer, forfeit any right to 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. 1 Cir. 2/18/14), 142 So.3d 52,
56. Because forfeiture of benefits is a harsh remedy,
statutory forfeiture must be strictly construed. Id.
An employer has the burden of proving each element within the
statute, and the lack of any one of the elements is fatal to
the employer's avoidance of liability. Id.
issue of whether an employee forfeited workers'
compensation benefits by willfully making false statements is
one of fact, which should not be reversed on appeal absent
manifest error. Bernard v. Petro Stopping Centers,
2007-0387 (La.App. 1 Cir. 11/2/07), 977 So.2d 49, 54,
writ denied, 2008-0100 (La. 3/7/08), 977 So.2d 917.
Under that standard of review, in order to reverse the OWC
hearing officer's determination that Mr. Creel made
willfully false statements for the purpose of obtaining
workers' compensation benefits in violation of Section
1208, this court must find that a reasonable factual basis
for the finding did not exist and that the finding is clearly
wrong (manifestly erroneous). Stobart v. State,
Department of Transportation and Development, 617 So.2d
880, 882 (La. 1993). On appeal, the issue to be resolved by
this court is not whether the OWC hearing officer was right
or wrong, but whether the OWC hearing officer's
conclusion was a reasonable one. Id. Therefore, if
there is a reasonable evidentiary basis for the factual
findings of the OWC hearing officer, his factual
determinations will not be disturbed on appeal. Bazar v.
Hull, 95-1427 (La.App. 1 Cir. 2/23/96), 669 So.2d 603,
record before us is replete with inconsistencies regarding
the accident and Mr. Creel's medical history sufficient
to establish an evidentiary basis for the OWC hearing
officer's factual findings. According to the record, Mr.
Creel told his treating physician that his truck flipped over
during the accident in question. However, when asked about
this at trial, Mr. Creel stated, "I said it done
everything but flip the truck. ... And I said it felt like I
flipped the truck but I didn't." During his
deposition, Mr. Creel indicated that the impact
"jackknifed the trailer, drug the trailer and all
that." When asked about the damage to the truck, Mr.
Creel responded, "It caved the sleeper in. I jackknifed
the truck. I busted tires and rims trying to get stopped and
I blew the tires out. I burnt the rubber off of them."
Castleberry, who owns American Pride with her husband Reggie,
testified regarding the accident. She arrived on the accident
scene shortly after it occurred and inspected the truck.
According to Mrs. Castleberry, the damage to the truck was
minimal. It did not appear that the truck had overturned in
any way, and the sleeper was not crushed in as Mr. Creel had
indicated. In fact, the truck was driven away from the scene
of the accident by another employee and was still in service
at the time of trial. When asked about repairs to the truck,
she noted that she was only aware of a tire needing to be
changed because of a "nick" that would have
prevented it from passing inspection.
Creel reported the accident to his employer and was taken to
the hospital in an ambulance. He soon began treating with Dr.
John Logan, the orthopedic surgeon who had previously treated
him concerning another workers' compensation case.
According to the record, Mr. Creel had sustained a fractured
back in a 2007 accident and later underwent a cervical fusion
in November 2007 and a lumbar fusion in June 2009. In his
deposition, Mr. Creel indicated that he made a good recovery
following these surgeries and that he was back to doing the
"whole nine yards"-back to work, riding
motorcycles, and able to walk, even though he had been
confined to a wheelchair for over a year after the 2007
Mr. Creel admitted at trial that he had never been totally
pain free in the last ten years and that he had good days and
bad days. He explained that he "always hurt the
worst" when he did maintenance work like working on the
truck tires and brakes. Mr. Creel even acknowledged that he
and Dr. Logan discussed the removal of the hardware in his
back because he was "having a little bit of problem with
it." Mr. Creel indicated that he could not afford the
procedure because Dr. Logan did not accept his insurance.
Further, records from Lady of Angels Hospital reveal that Mr.
Creel was using marijuana for back pain on a regular basis
months before the accident at issue and also had x-rays of
his lumbar and cervical spine done during the same time
period. Ironically, despite this ...