FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT 3
PARISH OF CALCASIEU, NO. 18-00674 DIANNE M. MAYO,
WORKERS' COMPENSATION JUDGE.
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.
composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M.
Keaty, and D. Kent Savoie, Judges.
PHYLLIS M. KEATY JUDGE.
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.
AND PROCEDURAL HISTORY
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.
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").
matter proceeded to trial before the WCJ on February 20,
2019. After both parties submitted exhibits  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
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.
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.
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.
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.
Nabors court ...