Hurst v. Railserve, Inc.

844 So. 2d 342, 2003 La. App. LEXIS 754, 2003 WL 1702046
CourtLouisiana Court of Appeal
DecidedMarch 28, 2003
DocketNo. 2002 CA 0929
StatusPublished
Cited by1 cases

This text of 844 So. 2d 342 (Hurst v. Railserve, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hurst v. Railserve, Inc., 844 So. 2d 342, 2003 La. App. LEXIS 754, 2003 WL 1702046 (La. Ct. App. 2003).

Opinion

2MCCLENDON, J.

This appeal arises from an action for workers’ compensation benefits that .were denied. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On January 12, 2000, David Wayne Hurst filed his disputed claim for workers’ compensation benefits with the Office of Workers’ Compensation Administration (hereinafter “OWC”), against his employer, Railserve, Inc. (“Railserve”), alleging that he suffered an accident, during the course and scope of his employment with Railserve, on September 1, 1999, resulting in permanent disability to his foot.

Trial was held on September 20, 2001, wherein the OWC judge determined that plaintiff committed fraud based on intentional and false statements made to his treating physician for the purpose of obtaining workers’ compensation benefits, thus forfeiting the rights to all benefits under the Workers’ Compensation Act as might otherwise be awarded. The judgment, signed on October 12, 2001, forms the basis of this appeal.

In his one assignment of error, plaintiff urges that the OWC judge was manifestly erroneous in finding that he committed fraud under LSA-R.S. 23:1208.

DISCUSSION

An employee who sustains a personal injury by accident arising out of and in the course and scope of his employment is entitled to collect workers’ compensation from his employer, unless he is otherwise eliminated from benefits under the provisions of Title 23. LSA-R.S. 23:1031(A). “Accident” means an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than |3simply a gradual deterioration or progressive degeneration. LSA-R.S. 23:1021(1). The employee who claims a right to collect workers’ compensation benefits has the burden of proving a work-related accident by a preponderance of the evidence. Bolton v. B E & K Construction, 2001-0486, pp. 7-8 (La.App. 1 Cir. 6/21/02), 822 So.2d 29, 35; Catchot v. RAMCO Construction, 2000-1922, pp. 2-3 (La.App. 1 Cir. 11/14/01), 818 So.2d 105, 107, citing Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992).

LSA-R.S. 23:1208 provides in relevant 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’ [345]*345compensation judge, forfeit any right to compensation benefits under this Chapter.

This statute applies to any false statement or misrepresentation made specifically for the purpose of obtaining workers’ compensation benefits. This broadly-worded statute encompasses any false statements or misrepresentations made to anyone, including the employer, physicians or insurers, when made willfully or deliberately for the purpose of obtaining benefits. It contains no requirement that an employee be put on notice of the consequences of making such false statements or misrepresentations. Hull v. Fluker Farms, 2000-0757, pp. 5-6 (La.App. 1 Cir. 5/11/01), 787 So.2d 535, 539, writ denied, 2001-2291 (La.11/16/01), 802 So.2d 612, citing Resweber v. Haroil Construction Company, 94-2708, 94-3138, pp. 1-2, 7 (La.9/5/95), 660 So.2d 7, 9, 12.

The only requirements for forfeiture of workers’ compensation benefits under section 1208 are 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. Hull v. Fluker Farms, 2000-0757 at p. 6, 787 So.2d at 539.

The issue of whether an employee forfeited his workers’ compensation benefits is one of fact, which is not to be reversed on appeal, absent manifest error. Hull v. Fluker Farms, 2000-0757 at p. 6, 787 So.2d at 539. Before an appellate court may reverse the factual determinations of the OWC judge, it must find from the record a reasonable factual basis does not exist for the findings, i.e., that the findings are clearly wrong or manifestly erroneous. Where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Hull v. Fluker Farms, 2000-0757 at p. 6, 787 So.2d at 539-40, citing Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 883 (La.1993).

Plaintiff testified at the trial of this matter that he was employed by Railserve as a conductor and locomotive engineer beginning in March 1998. His duties included moving and switching out railroad cars at the BASF plant in Geismar. Plaintiff testified that he first hurt his foot on September 1, 1999, when he stepped down from a railroad car onto rocks along the railroad tracks and felt a sharp pain in his left foot. He testified that he did not report this incident and continued to work.2 Plaintiff stated he was injured a second time on September 19, 1999, when he stepped off a railcar into a hole along the tracks. According to plaintiff, he reported this incident to his supervisor, James Anderson, who told him to fill out an accident report at the end of his shift. Plaintiff testified that he did not do so because he cannot read or write. Plaintiff stated he went to the emergency room the | .^following day in connection with this injury. Plaintiff then testified that he injured his foot a third time on November 11, 1999, when he was again stepping off a railcar, stating that his knees buckled and the pain was a lot worse than the other two times. Plaintiff stated that at the end of his shift that day, he could not walk and that an engine had to be brought to him to bring him to the work trailer.

Plaintiff further testified that his wife called Mr. Anderson the next morning to tell him that plaintiff was going to the [346]*346hospital for medical treatment. Plaintiff testified that he told his treating physician, Dr. Sandra Mundine, that the day before, at work, he had stepped off a railcar into the rocks and that he felt a sharp pain in his foot. Dr. Mundine diagnosed plantar fascititis.

Plaintiff then stated that on a subsequent visit, he brought a piece of paper to Dr. Mundine that he assumed was a workers’ compensation form for benefits. Dr. Mundine’s office filled it out and he signed it.

Plaintiff was referred to Dr. Darryl Peterson, an orthopedic specialist, for a second opinion, and eventually had a surgical release of his plantar fascia by Dr. Janet Lewis.

On cross-examination, plaintiff testified that he told all his doctors about all three accidents. He further testified that although he did not report the first accident to Mr. Anderson, he reported the other two.3 He testified that all three of his supervisors knew he had been injured on the job.

In this regard, James Anderson, one of plaintiffs supervisor’s at the Geismar plant, was called as a witness. Anderson testified that plaintiff did not report any of the three accidents to him and that it was the policy of Railserve to have all accidents, no matter how minor, reported. Also, no |fiother employees approached Anderson about plaintiff being hurt at work.

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