APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT
7 STATE OF LOUISIANA NO. 17-7076, HONORABLE SHANNON BRUNO
BISHOP, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLANT, LEONTINE MORAN Daren Sarphie
COUNSEL FOR DEFENDANT/APPELLEE, ROUSE'S ENTERPRISES, LLC
AND GREAT AMERICAN ALLIANCE INSURANCE COMPANY Wade A.
Langlois, III Brittany A. Cooper
composed of Judges Jude G. Gravois, Stephen J. Windhorst, and
Hans J. Liljeberg
G. GRAVOIS JUDGE.
Leontine Moran, appeals a judgment of the Office of
Workers' Compensation finding that she forfeited her
right to workers' compensation benefits under La. R.S.
23:1208. For the following reasons, we affirm.
AND PROCEDURAL HISTORY
October 9, 2017, Ms. Moran was working as a cook in the deli
department for Rouse's Enterprises, L.L.C.
("Rouses") in Metairie, Louisiana, when she slipped
and fell in a puddle of water that had leaked from a
refrigerated display case. Ms. Moran reported the accident to
her manager, Edward Drevar, and then returned to her work.
After about 30 minutes, she began to experience leg pain. Ms.
Moran left work, briefly went home, and then went to the
emergency room at Tulane Lakeside Hospital where she
complained of back and knee pain. She was diagnosed with a
thoracic strain and a knee injury. Ms. Moran returned to work
the next day and completed an injury report. She also
submitted to a drug screen that day in accordance with
Rouses' drug testing policy. The following week, Ms.
Moran was informed that she was terminated from her position
at Rouses after the results of her drug test revealed the
presence of THC.
October 14, 2017, Ms. Moran went to the emergency room at
East Jefferson General Hospital ("EJGH"). She
reported that she had a recent fall at work and complained of
right-sided chest pain radiating to her right shoulder and
neck. On October 19, 2017, Ms. Moran was treated at Daughters
of Charity for complaints of pain in her neck, back, and arm.
She was diagnosed with right shoulder impingement syndrome
and given a steroid injection. On October 21, 2017, she
presented to University Medical Center and was treated for
back, chest, and right arm pain. She returned to Daughters of
Charity on November 3, 2017 due to pain in her right
shoulder. She continued to treat with Daughters of Charity
and was referred to University Medical Center Orthopedics.
She also received physical therapy at EJGH.
November 2, 2017, as a result of the accident and the
injuries she allegedly sustained therein, Ms. Moran filed a
disputed claim for compensation with the Office of
Workers' Compensation against Rouses and its insurer,
Great American Alliance Insurance Company. Defendants
answered and denied the claim on November 6, 2017. In their
answer, defendants alleged that in accordance with La. R.S.
23:1081, because of Ms. Moran's positive drug test, they
are entitled to a presumption of intoxication and a denial of
the claimant's benefits.
9, 2018, defendants filed a supplemental and amended answer
to the disputed claim for compensation and a reconventional
demand. Therein, defendants claimed that Ms. Moran made false
statements that triggered the provisions of La. R.S. 23:1208.
Accordingly, they alleged that Ms. Moran forfeited her right
to all benefits. Specifically, defendants stated that Ms.
Moran alleged injuries to her right knee, back, and right
shoulder as a result of the subject accident. During her
deposition, she testified that she only experienced knee pain
at one particular time some years earlier, but could not
remember exactly when. She denied having chronic knee pain
prior to the accident and said the knee pain was not serious.
Defendants stated, however, that according to the Daughters
of Charity medical records, Ms. Moran has treated for knee
pain since 2012 and complained of knee pain at least eight
times between 2012 and the date of the subject accident. At
her deposition, Ms. Moran also testified that she never
experienced shoulder pain or back pain prior to the subject
accident. Her medical records revealed, however, that on
August 2, 2017, at the last appointment at Daughters of
Charity before the accident, Ms. Moran was diagnosed with
right shoulder impingement. Defendants also argued that
during her deposition, Ms. Moran further denied ever
experiencing a slip and fall prior to this accident. Medical
records from University Medical Center revealed, however,
that she experienced a prior slip and fall on April 20, 2013
that resulted in complaints of right knee pain, right wrist
pain, and back pain. Defendants also noted that in the Second
Injury Fund questionnaire Ms. Moran completed when hired, she
denied prior knee and back problems. She also denied being
treated or counseled on the use of drugs in both the
questionnaire and in her deposition. Defendants stated that
the medical records reveal that Ms. Moran was treated and
counseled for excessive THC use in April 2013. Thus,
defendants argued that based on these false statements, per
La. R.S. 23:1208, Ms. Moran forfeited the right to all
benefits, including penalties and attorney's fees.
defendants' request, Dr. Douglas Lurie, an orthopedist,
examined Ms. Moran on May 10, 2018. After examining Ms. Moran
and reviewing her medical records, Dr. Lurie opined that Ms.
Moran's injuries were pre-existing and that she could
return to work. At his deposition on May 22, 2018, Dr. Lurie
stated that Ms. Moran "may have" experienced an
aggravation of symptoms following her accident.
on the merits of the matter took place on November 29, 2018.
On March 8, 2019, the trial court rendered judgment, finding:
1. Ms. Moran met her burden to prove that she sustained an on
the job accident in accordance with La. R.S. 23:1021(1);
2. Ms. Moran met her burden to show that she sustained
injuries related to a work accident;
3. Ms. Moran met her burden to show a causal connection
between a work accident and her injuries;
4. Ms. Moran met her burden to show that she was disabled
from work as a result of injuries sustained in the work
5. Defendants are not entitled to the intoxication
presumption due to the immediacy ...