Jim Walter Homes, Inc. v. Prine

808 So. 2d 818, 2002 WL 227177
CourtLouisiana Court of Appeal
DecidedFebruary 15, 2002
Docket2001 CA 0116
StatusPublished
Cited by19 cases

This text of 808 So. 2d 818 (Jim Walter Homes, Inc. v. Prine) 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
Jim Walter Homes, Inc. v. Prine, 808 So. 2d 818, 2002 WL 227177 (La. Ct. App. 2002).

Opinion

808 So.2d 818 (2002)

JIM WALTER HOMES, INC. and Lumbermen's Underwriting Alliance
v.
Benny Ray PRINE.

No. 2001 CA 0116.

Court of Appeal of Louisiana, First Circuit.

February 15, 2002.

*820 Christopher H. Hebert, Lafayette, for Plaintiffs-Appellees Jim Walter Homes, Inc. and Lumbermen's Underwriting Alliance.

Joe Arthur Sims, Hammond, for Defendant-Appellant Benny Ray Prine.

Before: FOIL and PETTIGREW, JJ., and KLINE,[1] J. Pro Tem.

PETTIGREW, J.

Claimant appeals from a judgment of the Office of Workers' Compensation disqualifying him from receiving workers' compensation benefits based on violation of La. R.S. 23:1208, which governs misrepresentation concerning benefits. For the following reasons, we affirm.

FACTS

On May 5, 1995, during the course and scope of his employment with Jim Walter Homes, Inc., Benny Ray Prine fractured his right arm while working as a carpenter. Following this incident, Mr. Prine immediately began receiving weekly compensation benefits from Lumbermen's Underwriting Alliance, the workers' compensation carrier for Jim Walter Homes, Inc. (collectively referred to as "Lumbermen's"). Lumbermen's also began paying Mr. Prine's medical expenses associated with this work-related injury. According to the record, Mr. Prine had previously fractured his right arm while arm wrestling in prison, a fracture that may have only been partially healed at the time of this incident in May of 1995. On May 16, 1995, Dr. L. Fambrough performed surgery on Mr. Prine's right arm, consisting of an "internal fixation with intramedullary humerus rod."

Subsequently, Mr. Prine was referred to Dr. Kyle F. Dickson for treatment of "gross instability" that had developed in Mr. Prine's right arm. Dr. Dickson scheduled Mr. Prine for surgery on three separate occasions, all of which were cancelled because of Mr. Prine's failure to appear for surgery. As a result of Mr. Prine's failure to undergo the needed surgery, Lumbermen's filed a disputed claim against Mr. Prine for his unreasonable failure to follow recommended medical treatment. Mr. Prine eventually agreed to have the recommended surgery, which was performed by Dr. Dickson on January 28, 1999.

In connection with Lumbermen's initial disputed claim, Mr. Prine was deposed on January 21, 1999. Mr. Prine was asked whether he had ever been injured in an automobile accident. Mr. Prine indicated he had been involved in an automobile accident more than ten years ago and had "sprung" his back. Mr. Prine also recalled a "truck wreck" in either 1995 or 1996, where the only injury he sustained was a "powder burn" from the air bag. Mr. *821 Prine added that he believed this accident occurred after his work-related accident in May of 1995. Mr. Prine was then questioned specifically about the time period following his May 1995 workers' compensation accident and whether he had any accidents or injuries since that time. The following colloquy occurred:

Q. Now let's talk about the time period after your accident of May, 1995. Have you had any accidents since that time?
A. Now what are you talking about, like falling down or something like that?
Q. Anything, any kind of accident.
A. No, sir, not that I can recall.
Q. Have you injured yourself?
A. No, sir.
Q. When I say injuries, I'm talking about any type of injury. Did you hurt yourself in any way since this accident in May of 1995?
A. Not that I can recall.

Following Mr. Prine's initial deposition and surgery in January of 1999, Lumbermen's learned that Mr. Prine had engaged in certain misrepresentations regarding his workers' compensation claim and the benefits he was receiving. Accordingly, Lumbermen's filed the instant claim against Mr. Prine, seeking restitution of all amounts paid out in medicals and indemnity and a declaration that Mr. Prine had forfeited his right to workers' compensation benefits pursuant to La. R.S. 23:1208 "due to him misrepresenting his past medical history and subsequent accident and injuries and otherwise impairing [Lumberman's] subrogation rights." Shortly thereafter, Lumberman's filed a supplemental and amended claim against Mr. Prine, adding that Mr. Prine had misrepresented information concerning mileage reimbursements for travel to and from his doctor's office in January and February of 2000. In connection with these proceedings, Mr. Prine was again deposed on August 1, 2000.

During the August 1, 2000 deposition, Mr. Prine was confronted with information concerning three separate incidents, all of which occurred after his May 5, 1995 accident, that he had failed to disclose during his initial deposition. Mr. Prine was questioned in detail about an automobile accident he had been involved in on January 2, 1999, just nineteen days prior to his initial deposition of January 21, 1999. When asked why he failed to disclose this accident during his first deposition, Mr. Prine responded, "I thought I did." While acknowledging that he was involved in the accident and that he had filed a lawsuit concerning same, Mr. Prine denied telling hospital personnel at North Oaks Medical Center that he was in pain. In fact, Mr. Prine testified that the only injuries he sustained in the January 2, 1999 accident was glass in his face and his back that was later removed by hospital personnel. Mr. Prine denied seeking any further medical treatment in connection with this incident after he was seen at North Oaks Medical Center on January 3, 1999.

When asked at trial why he failed to disclose this accident during his August 1, 2000 deposition, Mr. Prine responded, "It didn't pop in my mind. I was taking that medication." Further, when questioned regarding this incident at trial, Mr. Prine admitted that he had "messed up" in his prior testimony when he indicated that he had not told medical personnel at North Oaks Medical Center that he was in pain following the accident. Mr. Prine was confronted with the medical records from his January 3, 1999 visit to North Oaks Medical Center and acknowledged he had complaints of neck pain, back pain, and rib pain following the automobile accident on January 2, 1999. However, although the records also reflected that he had sustained *822 an abrasion to his right hand, Mr. Prine denied same, stating that he only had "a couple pieces of glass sticking in the top of [his] hand."

Other information relative to this automobile accident and the extent of Mr. Prine's medical treatment following same was misrepresented and concealed from Lumbermen's until the time of trial. Although at his deposition Mr. Prine had denied seeking any additional medical treatment for injuries sustained in this accident, at trial he acknowledged seeing Dr. D.M. Jarrott, a neurosurgeon, a "few times." Nonetheless, Dr. Jarrott's records reflect that at the time of the August 1, 2000 deposition, Mr. Prine had been seen by Dr. Jarrott on no less than eight occasions. In fact, he had been seen by Dr. Jarrott on July 14, 2000, just two weeks before the deposition. When asked if he had lied in his deposition regarding these visits with Dr. Jarrott, Mr. Prine indicated that he was going to change his testimony but it was too late. He also added that Dr. Jarrott had given him some medication that made him "flip" and affected his ability to recall this follow-up treatment with Dr. Jarrott. However, Mr.

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Bluebook (online)
808 So. 2d 818, 2002 WL 227177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jim-walter-homes-inc-v-prine-lactapp-2002.