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Tanks v. CB&I, Inc.

Court of Appeals of Louisiana, Third Circuit

December 18, 2019



          Tobin James Eason Kenneth B. Givens Weiss & Eason, L.L.P., Counsel for Defendants/Appellants: CB&I, Inc. XL Specialty Insurance Company.

          Gregory S. Unger Workers' Compensation, LLC Counsel for Plaintiff/Appellee: Donald Tanks.

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and D. Kent Savoie, Judges.


         The employer, CB&I, and its workers' compensation insurer, XL Specialty Insurance Company (collectively CB&I), appeal a judgment rendered in favor of the claimant, Donald Tanks, on the grounds that the Workers' Compensation Judge (WCJ) erred in failing to find that Tanks forfeited his claim for benefits by being untruthful on his employment application. For the following reasons, we affirm.


         On the morning of January 8, 2018, Tanks arrived at his worksite and attended a routine safety meeting with the other riggers working on a CB&I project in Hackberry, Louisiana (the Hackberry project). It had rained all weekend, and the area was muddy. As he was walking toward his crane to begin working, he stepped into a flooded hole and sunk down to his waist. Tanks was taken by ambulance to the emergency room at West Calcasieu Cameron Hospital where he was diagnosed with "acute lumbosacral strain." He began treatment with chiropractor, Dr. Michael Haydel, on January 10, 2018. Tanks' chief complaints were of low back pain and right shoulder pain that began immediately after the accident. An X-ray of Tanks' lumbar spine taken that day revealed "[n]o abnormality." Dr. Haydel diagnosed Tanks with a "lumbar sprain/strain with associated neuritis/radiculitis" and with right shoulder sprain/strain . . . with muscle spasms," and he restricted Tanks from work.

         Tanks filed a Form 1008 Disputed Claim for Compensation (Form 1008) with the Office of Workers' Compensation on January 31, 2018, alleging that he injured his back in the January 8, 2018 accident. He alleged that CB&I had not paid any wage benefits nor had it authorized any medical treatment. Tanks sought treatment from his choice of neurosurgeon and chiropractor, as well as statutory penalties and attorney fees for CB&I's failure to reasonably controvert his claim. In its initial answer to Tanks' claim, CB&I denied that he was injured and/or disabled in a work-related accident. By way of an amended answer, however, CB&I asserted that Tanks forfeited his right to collect benefits in violation of La.R.S. 23:1208.1 (hereafter sometimes referred to as "the Forfeiture Statute").

         The matter proceeded to trial before the WCJ on February 20, 2019. After both parties submitted exhibits [1] without objection, they stipulated "as to the occurrence of an accident on January 8, 2018, in the course and scope of Mr. Tanks' employment" and to Tanks' average weekly wage of $1, 640.87 with a corresponding "max comp rate." The only two witnesses to testify at trial were Tanks and Joel Denison, the safety manager at CB&I on the date of Tanks' accident. After entertaining closing arguments, the WCJ declared from the bench that it was ruling in Tanks' favor, denying CB&I's argument that Tanks had forfeited benefits pursuant to the Forfeiture Statute and denying Tanks' claims that CB&I be cast with penalties and attorney fees. By written judgment dated March 1, 2019, the WCJ found that Tanks "injured his back or aggravated a pre-existing back condition in an accident that arouse out of and within the course and scope of his employment" with CB&I. Tanks was awarded continuing temporary total disability benefits (TTDs) "at the weekly rate of $653.00 retroactive to the date of the accident, plus interest, subject to a credit for short term disability benefits paid under the employer's disability benefit plan." The WCJ further ordered that Tanks was "entitled to all reasonable and necessary related medical benefits," and it ordered CB&I to pay all of Tanks' "outstanding related medical expenses," to reimburse Tanks for all of the related medical expenses that he had paid, and to "authorize future related medical treatment with [Tanks'] choice of physician."

         CB&I now appeals, asserting in its sole assignment of error that the WCJ erred in denying the application of La.R.S. 23:1208.1 to defeat Tanks' request for benefits. Tanks filed an Answer to Appeal wherein he requested that this court award his costs and attorney fees.


         Louisiana Revised Statutes 23:1208.1, titled "Employer's inquiry into employee's previous injury claims; forfeiture of benefits," provides, in part:

Nothing in this Title shall prohibit an employer from inquiring about previous injuries, disabilities, or other medical conditions and the employee shall answer truthfully; failure to answer truthfully shall result in the employee's forfeiture of benefits under this Chapter, provided said failure to answer directly relates to the medical condition for which a claim for benefits is made or affects the employer's ability to receive reimbursement from the second injury fund. This Section shall not be enforceable unless the written form on which the inquiries about previous medical conditions are made contains a notice advising the employee that his failure to answer truthfully may result in his forfeiture of worker's compensation benefits under R.S. 23:1208.1.

         We are compelled to note at the outset of this opinion that CB&I, in its reply brief to this court, clarified that "this is not a Second Injury Claim. The issue is the direct relationship between the prior injury and the current injury." Accordingly, we need not determine whether Tanks' untruthful answers impaired its ability to collect reimbursement from the second injury fund. Nevertheless, we must mention the second injury fund in our discussion of the history and purpose of the Forfeiture Statute.

         In Nabors Drilling USA v. Davis, 03-136, pp. 4-5 (La. 10/21/03), 857 So.2d 407, 413-14 (first emphasis added), the supreme court explained how the Forfeiture Statute fits into the overall workers' compensation scheme:

In order "to encourage the employment of physically handicapped employees who have a permanent, partial disability by protecting employers . . . from excess liability for workers' compensation for disability [which may result] when a subsequent injury to such an employee merges with his preexisting permanent physical disability to cause a greater disability than would have resulted from the subsequent injury alone," the legislature created the Second Injury Fund. LSA-R.S. 23:1371(A). An employer who "knowingly employs or knowingly retains in his employment" an employee who suffers from a permanent partial disability as defined by the statute is entitled to be reimbursed from the fund if that employee "incurs a subsequent injury arising out of and in the course of his employment resulting in liability for disability due to the merger of the subsequent injury with the preexisting permanent partial disability." LSA-R.S. 23:1378(A)(1).
In order to assist the employer in meeting its statutory burden of establishing that it "knowingly" hired a worker with a preexisting permanent partial disability so as to qualify for reimbursement from the second injury fund, LSA-R.S. 23:1208.1 permits the employer to obtain medical information from an employee or job applicant concerning preexisting conditions. The same statute that permits this inquiry also states that the employee's failure to answer the employer's inquiry truthfully shall result in the forfeiture of workers' compensation benefits provided certain enumerated circumstances are met.

         The Nabors court ...

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