STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
06-1088
BRIAN DOYAL
VERSUS
VERNON PARISH SCHOOL BOARD
**********
APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION - DISTRICT 2 PARISH OF RAPIDES, NO. 04-05616 JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE
MARC T. AMY JUDGE
Court composed of Marc T. Amy, J. David Painter, and James T. Genovese, Judges.
AFFIRMED.
Maria A. Losavio Losavio Law Firm, LLC Post Office Box 12420 Alexandria, LA 71315-2420 (318) 767-9033 COUNSEL FOR PLAINTIFF/APPELLEE: Brian Doyal
Stacy C. Auzenne Auzenne Law Firm, LLC Post Office Drawer 11817 Alexandria, LA 71315-1817 (318) 880-0087 COUNSEL FOR DEFENDANT/APPELLANT: Vernon Parish School Board AMY, Judge.
The employee allegedly sustained injuries in an accident related to his
employment as a cafeteria worker. The employer terminated benefits and sought a
determination that the employee forfeited benefits due to what it asserted were
fraudulent statements concerning the claim and failure to timely report wages from
outside employment. The employee sought reinstatement of benefits as well as
penalties and attorney’s fees. The workers’ compensation judge found in favor of the
employee and awarded the relief sought. The employer appeals. The employee
answers the appeal. We affirm.
Factual and Procedural Background
The record establishes that Brian Doyal was employed by the Vernon Parish
School Board as a cafeteria cook at East Leesville Elementary School. Mr. Doyal
asserts that he sustained injury on October 9, 2003 when a sheet pan rack toppled
against him and knocked him to the ground. He contends that a faulty wheel caused
the accident.
Marsha Mayo, the cafeteria’s assistant head cook, explained that she was
nearby and that she responded to Mr. Doyal’s moaning. She testified that she and Mr.
Doyal lifted the sheet pan rack to its upright position. Later that afternoon, she
completed an accident report form for Mr. Doyal.
Mr. Doyal reported to the emergency department of the Byrd Regional Hospital
on the afternoon of the alleged accident. The department’s records indicate that he
complained of pain to the left shoulder, waist, hip, and lumbar spine and reveal a
diagnosis of contusion to the left shoulder. He also complained of soreness over his
rib cage. Mr. Doyal was instructed not to return to work until seeing his primary care
physician. Although Mr. Doyal treated with various physicians, his complaints of pain continued. Physicians ultimately recommended a diskectomy to alleviate pain
from a herniated lumbar disc and a carpal tunnel release.
Initially, the School Board provided Mr. Doyal with temporary total disability
benefits as well as medical benefits. However, the School Board provided its final
indemnity payment in June 2004. According to Edyce Rivet, the Mor-Tem Risk
Management claims representative assigned to the case, benefits were terminated
after she learned that Mr. Doyal commenced summer employment as the kitchen
manager for a local summer camp. Medical benefits were later terminated. The
lumbar surgery and carpal tunnel release were not provided.
This matter was instituted on August 5, 2004 when the School Board filed a
“Disputed Claim for Compensation” and, in its pre-trial statement, asserted that Mr.
Doyal fraudulently accepted compensation benefits while earning in excess of ninety
percent of his pre-accident wage, provided false statements regarding the occurrence
of the accident, and failed to disclose pre-existing back injuries in his employment
questionnaire and in the history provided to physicians who treated him after the
accident. The School Board sought reimbursement of all indemnity, medical, and
mileage benefits. Mr. Doyal filed his own claim and asserted entitlement to TTD
benefits as well as penalties and attorney’s fees due to the termination of benefits.
The workers’ compensation judge denied the School Board’s forfeiture claims,
reinstated TTD benefits from the date they were last paid, and found Mr. Doyal
entitled to continued medical care, including the recommended back surgery and
carpal tunnel release. The trial court awarded $8,000.00 in penalties and $25,000.00
in attorney’s fees pursuant to La.R.S. 23:1201(I).
The School Board appeals and argues that the workers’ compensation judge
erred in: 1) denying the claim for forfeiture of benefits under La.R.S. 23:1208 and
La.R.S. 23:1208.1; 2) concluding that Mr. Doyal suffered a work-related accident; 3)
2 awarding penalties pursuant to La.R.S. 23:1201(I); and 4) ordering continued medical
care and the lumbar and carpal tunnel surgeries. Mr. Doyal answers the appeal and
asserts that he is due additional penalties for failure to authorize medical benefits. He
also seeks additional attorney’s fees for work performed on appeal.
Discussion
Forfeiture - Louisiana Revised Statutes 23:1208.1
The School Board first contends that the workers’ compensation judge erred
in denying its claim for forfeiture under La.R.S. 23:1208.1 as Mr. Doyal failed to
disclose previous injuries in his employment health questionnaire. The School Board
points to back, hip, shoulder, and leg injuries Mr. Doyal sustained when he fell from
a roof in 1991 and notes that he denied injury to these areas in the employment
questionnaire. At trial, Mr. Doyal explained that he completed the questionnaire with
the assistance of School Board personnel and that he thought the inquiry pertained
to whether he was currently having difficulty or whether he had suffered from the
problems in the recent past.
Louisiana Revised Statutes 23:1208.1, entitled “Employer’s inquiry into
employee’s previous injury claims; forfeiture of benefits[,]” provides:
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. Such notice shall be prominently displayed in bold faced block lettering of no less than ten point type.
(Emphasis added.) In Nabors Drilling USA v. Davis, 03-0136, pp. 5-7 (La. 10/21/03),
857 So.2d 407, 414-15, the supreme court explained:
3 Forfeiture is a harsh remedy; therefore, statutory forfeiture provisions such as LSA-R.S. 23:1208.1 must be strictly construed. Wise v. J.E. Merit Constructors, Inc., 97-0684 (La.1/21/98), 707 So.2d 1214, 1218. By its express terms, LSA-R.S. 23:1208.1 provides for forfeiture under three circumstances. There must be (1) an untruthful statement; (2) prejudice to the employer; and (3) compliance with the notice requirements of the statute. Id., citing Resweber v. Haroil Const. Co., 94-2708, 94-3138 (La.9/5/95), 660 So.2d 7. The employer has the burden of proving each of the elements required by the statute. Wise, 707 So.2d at 1218. The lack of any one of the elements is fatal to the employer’s avoidance of liability under the statute. Id.
....
The “prejudice” that must be incurred by the employer for forfeiture to apply is specifically defined by the statute. The untruthful statement must “directly relate[ ] to the medical condition for which a claim for benefits is made,” or it must “affect[ ] the employer’s ability to receive reimbursement from the second injury fund.” LSA–R.S. 23:1208.1
A workers’ compensation judge’s factual findings relating to a forfeiture claim are
subject to the manifest error/clearly wrong standard of review. Chaisson v. Philip
Services Corp., 05-340 (La.App. 3 Cir. 11/2/05), 917 So.2d 514.
A portion of the workers’ compensation judge’s reasons for ruling1 in its denial
1 The reasons for ruling, as it relates to both the forfeiture claims under La.R.S. 23:1208.1and La.R.S. 23:1208 claims, reveals, in part:
[W]ith regard to a 1208.1 claim and the Medical Questionnaire, there’s certain things in Revised Statute 23:1378 that are presumed to be permanent/partial disabilities. None of those were available or present in Mr. Doyal’s case. They were asked of him, and he denied them. The sine qua non of a 1208.1 is that the employer must show that the claimant had a known pre-existing permanent/partial disability that he lied about or that he failed to inform the employer about on the Post-hire Medical Questionnaire. In my perusal of the medical evidence, I have found no permanent/partial disability pre-existing the disability associated with the job accident. The case of Weis versus J.E. Merit Constructors, Incorporated addresses this issue. The case of - - in fact, what happened in this case was the Medical Questionnaire was very broad and over vague with regard to, “Have you ever had” - - the assertion that Mr. Doyal misinformed anybody about headaches, hip problems or arthritic problems. Mr. Doyal, in this Court’s view, was a very simple man. He did - - despite the argument presented by the employer in Brief, he did very poorly in school. I reviewed his school records. . . . He as [sic] just an ordinary fellow. Plain and genuine. True blue. Very credible. Never once did he waiver. Never once did he fidget. The simple showing of missatements with regard to past medical activities is insufficient to sustain a 1208.1 defense. There are other things the employer must do. They must show that they were prejudiced by the failure to disclose a known pre-existing permanent/partial disability. I have searched in vain to see if there is any medical records to show that this was inevitable to follow from the accident described. And, of course, I relied upon the case of Nabors Drilling,
4 of the La.R.S. 23:1208.1 claim related to the credibility findings it afforded the
testimony of Mr. Doyal. Otherwise, the workers’ compensation judge focused on the
School Board’s failure to satisfy the specific requirements of La.R.S. 23:1208.1. This
U.S.A. versus Davis, a Supreme Court case, 857 So.2d, 407, and Hickman versus Jim Smith Logging, 883 So.2d, 1072, a third circuit case September 2004. Now, I note with regard to the argument made by the employer that, “Look, Mr. Doyal signed the Post-hire Medical Questionnaire.” And so look at the Price versus Breaux Brothers case. It’s well settled that, you know, he signed it, he has to live with it. However, in Hickman versus Jim Smith Logging the Third Circuit declined to follow the Price versus Breaux Brothers case with regard to the effect of a signature on an instrument which the individual signer did not read. I am not convinced at all that Mr. Doyal had any clear understanding of the questions being asked him giving [sic] his educational record. Hickman talks about what is necessary to prove directly related to, and somehow the employer argues that he had this T-9 fracture. He had some hip problems. He had some headache problems. He had a multiplicity of problems. None of which Mr. Doyal really denied at trial, although he failed to recall all of those at his deposition. And, in fact, he - - after his deposition was taken, he made an effort to correct his deposition. And before he could correct that deposition, an amended claim was filed that he lied about these previous problems. So I thought I’d have to take a look at that type of issue, and I note the case of Freiman versus Triad Builders, a 902 So.2d 1220, Second Circuit case decided May 11th of 2005, where the employer said, “Look, Mr. Freiman’s lied about his driving capabilities. We took his deposition, and he said he can’t drive more than a hundred yards. Look at our video. He drove from Shriever, Louisiana to Shreveport, Louisiana.[”] After his deposition was taken, Mr. Freiman’s wife corrected him and said, “Hey, didn’t you remember your driving?” So he thereafter corrected his deposition testimony. Mr. Doyal had no significant problems after his T-9 fracture of any great merit. It’s true that he sued his brother, but his testimony at trial was, “The only reason I sued my brother and his insurance was because I needed somebody to pay the medical bills I had.” Now, as any great attorney would do when the suit was filed, they alleged a multiplicity and a sundry of things just like a criminal prosecutor brings great charges in an effort to have, perhaps, a plea bargain to something much less. Now, Mr. Doyal said the claim was settled and there was no trial, and he got his medical bills paid. And that’s what happened with respect to falling off the trailer.
Moreover, with regard to the case of Hickman versus Jim Smith Logging, there was no medical evidence or testimony presented that because he had a T-9 fracture, headaches, hip problems, et cetera, that the injuries he sustained when the pan rack fell on him were inevitable or very likely to occur. The fact of the matter is that once all of the past medical records were made known to the various physicians, they said it wouldn’t change their opinion about the cause of Mr. Doyal’s injuries, that being his injuries sustained from the pan rack fall. This being the case, it has been found in the case of Hutchinson versus Aldworth Company, Incorporated, 888 So.2d, Page 1052, that when the employer failed to put forth any evidence that the physicians’ opinions would be changed, they have not sufficiently proved a 1208 violation. I guess there appears to be some argument as well by the employer that he had some degenerative type problems and that his continuing complaints are all associated with that. However, the fact of the matter is Mr. Doyal has a disc injury, a severe disk injury, which the physicians say given his age, is traumatic in nature and not the result of any degenerative condition. Since I have concluded that Mr. Doyal has proven by a preponderance of the evidence that the accident occurred, the 1208 argument made with respect to his alleged misrepresentations about that are really mute [sic].
5 determination is supported by the record as the School Board failed to put forth
evidence indicating how the previous injuries were related to those now alleged. At
most, comparison of the medical records reveals complaints of pain to similar parts
of the body. Of further significance, the School Board failed to put forth evidence
indicating that any knowledge that it could have obtained by disclosure would have
permitted it to recover under the second injury fund. See La.R.S. 23:1378.
This argument lacks merit.
Forfeiture - Louisiana Revised Statutes 23:1208
The School Board also appeals its La.R.S. 23:1208 claim and again asserts that
it was entitled to forfeiture due to Mr. Doyal’s failure to apprise physicians of his past
injuries and due to statements he made in his deposition regarding his earlier
accidents and pre-existing injuries. The School Board also contends that Mr. Doyal
accepted workers’ compensation benefits while he was earning wages as the kitchen
manager at the children’s summer camp.
Louisiana Revised Statutes 23:1208, entitled “Misrepresentations concerning
benefit payments; penalty,” provides, in part:
A. It 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.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.
The above provision requires only “that (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” before the forfeiture required by La.R.S.
23:1208 is applied. Resweber v. Haroil Constr. Co., 94-2708, p. 7 (La.9/5/95), 660
6 So.2d 7, 12. A workers’ compensation judge’s determination as to the existence of
the above factors will not be reversed on appeal absent manifest error. Murphy v.
Brookshire Grocery Co., 02-808 (La.App. 3 Cir. 12/11/02), 832 So.2d 1157. After
review of the record, we find no such error in the workers’ compensation judge’s
determination.
Many of the misstatements/omissions complained of by the School Board stem
from remarks and notations made within various medical records. The School
Board’s allegations presume that Mr. Doyal had a thorough and sophisticated
understanding of his physicians’ reporting of his condition from the previous decade.
The record supports a determination that Mr. Doyal could have been unaware of these
notations and that this lack of understanding and related failure to report did not
warrant forfeiture. As the reasons for ruling indicate, the workers’ compensation
judge assessed Mr. Doyal’s credibility and, at various times, considered Mr. Doyal’s
educational background and intellectual capacity before concluding that the
statements complained of were not willfully made for the purpose of obtaining
benefits. This type of credibility determination is solely within the workers’
compensation judge’s province. Derouen v. C&D Prod. Spec., 98-57 (La.App. 3 Cir.
6/3/98), 718 So.2d 460. In short, even if false, the statements/omissions, whether to
physicians or in Mr. Doyal’s deposition, were not of the nature that required the
workers’ compensation judge to conclude that they were made for the purpose of
obtaining benefits.
Neither do we find merit in the assertion that forfeiture was required due to Mr.
Doyal’s summer employment with the School Board. There is no indication that Mr.
Doyal impermissibly withheld information regarding his employment or that he was
working in any capacity unacceptable to his physicians. He was provided flexible
working conditions and was able to work in response to his needs and abilities.
7 Earnings were reported and compensation benefits that were paid were reimbursed.
The workers’ compensation judge was not required to find that this occurrence
warranted forfeiture.
Work-Related Accident
The School Board next questions the determination that Mr. Doyal suffered
injuries as a result of a work-related accident. As it did at trial, the School Board
contends that Mr. Doyal’s version of events regarding the sheet pan rack falling was
fabricated and that it was not corroborated by surrounding circumstances.
As the claimant, Mr. Doyal was required to establish, by a preponderance of
the evidence, that he received “personal injury by accident arising out of and in the
course of his employment[.]” La.R.S. 23:1031(A). See also Hoy v. Gilbert, 98-1565
(La. 3/2/99), 754 So.2d 207. A workers’ compensation judge’s factual determinations
regarding this burden are subject to the manifest error standard of review. Id. The
workers’ compensation judge’s reasons for ruling reveal an assessment of credibility
in favor of Mr. Doyal and those witnesses who corroborated certain aspects of his
version of events. The workers’ compensation judge afforded little weight to those
witnesses presented by the School Board in support of its position that the incident
was fabricated. After review, we find that the record supports these determinations.
Mr. Doyal testified that the sheet pan rack fell onto him after a wheel gave way
and knocked him to the ground. Ms. Mayo testified that she heard Mr. Doyal
moaning and, finding both Mr. Doyal and the sheet pan rack on the floor, assisted
with lifting the rack from the floor. She also explained that, although the rack’s
wheel was intact, the adjoining metal flange was bent. Princess Dorsey, one of Mr.
Doyal’s co-workers, also testified that she responded immediately afterwards. While
the particulars of Ms. Dorsey’s accounting of the event were contested throughout the
8 litigation, Ms. Dorsey explained at trial that when she entered the kitchen, she saw
Mr. Doyal lifting himself from the floor and that she asked him whether he was
allright. Additionally, Johnnie Dubois testified that, although she was outside at the
time of the incident, she returned to find Mr. Doyal sitting in a chair and holding his
left arm. She explained that it appeared that he was “hurting” at the time. Ms. Mayo
completed the accident report the same day and, later that afternoon, Mr. Doyal
reported to the hospital. The hospital’s records indicate that he complained of
soreness and include a notation of contusion to the left shoulder.
The School Board points to a variety of alleged inconsistencies within and
between accounts of the event which it contends prevent a finding that Mr. Doyal’s
evidence established a work-related accident and injury. At trial, the School Board
focused on a lack of witness accounts regarding the noise that it asserts must have
been produced by the pans and rack falling to the floor. All of these factors,
including inconsistencies extracted from witness statements and medical records,
were heard at trial. According to the reasons for ruling, they were generally accorded
little weight. We find no manifest error in the workers’ compensation judge’s
determination in this regard.
This assignment lacks merit.
Penalties and Attorney’s Fees
The School Board next questions the determination that penalties and
attorney’s fees were due for termination of benefits. Louisiana Revised Statutes
23:1201(I) provides, in part:
Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims.
9 In determining whether an employer’s actions are arbitrary and capricious, the crucial
inquiry is whether the employer can articulate an objective reason for terminating
benefits at the time of the termination. Frith v. Riverwood, Inc., 04-1086 (La.
1/19/05), 892 So.2d 7. Since the determination of whether an employer was arbitrary
and capricious is essentially a question of fact, it is subject to the manifest error or
clearly wrong standard of review. Id.
In awarding penalties and attorney’s fees, the workers’ compensation judge
explained:
The Court finds that the employer’s termination of benefits in August of 2004 after they had received information that Mr. Doyal supplied them that he was working was arbitrary, capricious and unreasonable. The continued denial of his claims for benefits remained arbitrary, capricious and unreasonable in light of the fact that the employer chose to ignore all of the inconsistencies in their own witnesses’ versions of the incidents, chose to ignore the medical records and somehow argued that Mr. Doyal doesn’t have a significant problem when it’s all been found and substantiated by the medical professionals who agree that he needs surgery. In fact, he has a right leg atrophy due to the nerve damage associated with the disc herniation. They have not complied with their continuing duty to make themselves aware of the proper jurisprudence that resolves and addresses these types of issues . ...
The Court finds that, of course, the termination and the continued termination and refusal to reinstate[,] arbitrary and capricious and unreasonable. I award an Eight Thousand Dollar ($8,000.00) penalty.
We find no manifest error in this determination.
The School Board asserts that it had an objective reason for terminating
benefits as it learned that Mr. Doyal was employed by the summer camp and that he
failed to timely inform the School Board of these earnings. The workers’
compensation judge was not required to find this point persuasive as testimony
indicates that Mr. Doyal’s temporary work with the summer camp was extremely
limited in terms of both hours and physical effort. A portion of his responsibilities
involved training his replacement as he could no longer perform the work. Similar
10 light duty or sedentary work was not available with the School Board. Furthermore,
while the School Board points to a failure to report earnings as a basis for the
termination, the record indicates that Mr. Doyal, in fact, reported his earnings and
returned TTD benefits that were erroneously paid after he began receiving wages. In
any event, there is no indication that this information could not have served as a valid
basis for the termination of medical benefits which occurred shortly after termination
of indemnity benefits.
Again, the School Board points to inconsistencies in witness accounts and Mr.
Doyal’s medical complaints. It argues that these provided it with a reasonable basis
for questioning the occurrence of the accident. As reference to the reasons for ruling
reveal, the workers’ compensation judge found the School Board’s reliance on these
alleged inconsistencies unreasonable as it seized upon alleged inconsistencies in
statements in support of Mr. Doyal, but ignored similar inconsistencies in its own
witness accounts.
Continued Medical Treatment
Neither do we find merit in the School Board’s final assignment of error in
which it questions the award of continuing medical treatment of the low back
condition and the carpal tunnel surgery recommended by his physicians. In a July
2004 report, Dr. Bradley Bartholomew, a neurosurgeon, recommended that, after
further testing to rule out additional problems in the cervical spine, Mr. Doyal
undergo a decompression and diskectomy at the L4-5 level. Dr. Donald Smith, a
neurosurgeon who saw Mr. Doyal upon referral by the School Board, concurred in
December 2004 that Mr. Doyal may require the recommended lumbar surgery and
further recommended that he have the carpal tunnel surgery ordered by the workers’
compensation court. Although the School Board argues that these recommendations
11 were made without knowledge of Mr. Doyal’s medical history, a February 2005 letter
from Dr. Smith indicates, after he was provided with records revealing Mr. Doyal’s
previous treatment and complaints, that: “No specific additional findings were
recorded at any of these visits that would change my initial evaluation and impression
as stated on the reports of 13 December 2004.”
Additional Penalties
Penalties in the amount of $8,000.00 were awarded pursuant to La.R.S.
23:1201(I). In his answer to the appeal, Mr. Doyal contends that the workers’
compensation judge should have awarded separate $8,000.00 penalties under La.R.S.
23:1201(I) for termination of indemnity benefits and for termination of medical
benefits. The wording of La.R.S. 23:1201(I), set forth herein, indicates otherwise.
The paragraph speaks broadly of “claims” and subjects an employer to “a penalty not
to exceed eight thousand dollars . . .” In light of this language, the workers’
compensation judge did not err in awarding a single, $8,000.00 penalty.
Mr. Doyal also suggests that an additional penalty should have been awarded
under La.R.S. 23:1201(F), the paragraph providing for penalties in the event that
payments are not made. Again, we find no merit in this argument. In this case, both
indemnity and medical benefits were initially provided and later terminated. Thus,
the workers’ compensation judge appropriately limited penalties in this situation in
accordance with La.R.S. 23:1201(I).
Attorney’s Fees
The workers’ compensation judge awarded $25,000.00 in attorney’s fees. The
School Board did not appeal the quantum of that award in its appeal. In his answer,
Mr. Doyal seeks additional attorney’s fees for work performed on appeal. In light of
our earlier affirmation of the award of penalties and attorney’s fees under La.R.S.
12 23:1201(I), we award additional attorney’s fees for work performed on appeal in the
amount of $2,500.00.
DECREE
For the foregoing reasons, the ruling of the workers’ compensation judge is
affirmed. Additional attorney’s fees in the amount of $2,500.00 are awarded to the
appellee, Brian Doyal. Costs of this proceeding are assessed to the appellant, the
Vernon Parish School Board, in the amount of $5,537.45.