Joseph v. Onyx Industrial Services

892 So. 2d 36, 4 La.App. 5 Cir. 367, 2004 La. App. LEXIS 3079, 2004 WL 2873801
CourtLouisiana Court of Appeal
DecidedDecember 14, 2004
DocketNo. 04-CA-367
StatusPublished
Cited by1 cases

This text of 892 So. 2d 36 (Joseph v. Onyx Industrial Services) 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
Joseph v. Onyx Industrial Services, 892 So. 2d 36, 4 La.App. 5 Cir. 367, 2004 La. App. LEXIS 3079, 2004 WL 2873801 (La. Ct. App. 2004).

Opinion

J^CLARENCE E. McMANUS, Judge.

STATEMENT OF THE CASE

Plaintiff, Severa Joseph, Sr., was allegedly injured on June 25, 2002 while in the course and scope of his employment with Onyx Industrial Services. He alleges he injured his back while lifting a jet in order to hydroblast while at the Shell Chemical Plant in Norco, Louisiana. The alleged accident was witnessed by Dwayne Stran-ton and Ron DiMaggio, Jr. Joseph reported the injury to his supervisor, Clarence Love, and was taken by stretcher to River Parishes Hospital. At the hospital, Joseph was treated by the Emergency Room physician, Dr. Richard Roberts, and a lumbar spine x-ray was conducted. While at the hospital, Joseph gave a statement to Doris Smith of the Safety Department of Onyx.

On June 26, 2002, Joseph went to Ambulatory & Industrial Medicine Medical Center and was referred to an orthopedic [38]*38surgeon. An MRI was conducted at HealthSouth Diagnostic in Baton Rouge, Louisiana. Joseph was then treated by Dr. Gordon Nutik, Onyx’s company doctor, from July 3, 2002 until July 28, 2002. Dr. Nutik reported that he had no further treatment to offer Joseph, so he [3was discharged from his care. On July 12, 2002, Joseph began treatment with Dr. Robert Dale, a chiropractor with River Parish Chiropractic. Dr. Dale referred Joseph to Dr. Bradley Bartholomew, a neurosurgeon. Joseph reported to Dr. Bartholomew on October 10, 2002. Dr. Bartholomew noted an abnormality on the MRI and recommended a right L4-5 selective nerve block. On March 25, 2003, the nerve blocks were authorized. An appointment for the nerve block procedure was set for April 25, 2003 with Dr. Amy Phelan, although the record is not clear as to whether the nerve blocks were actually conducted.

In response to his alleged accident and the injuries he sustained, on July 22, 2002, Joseph filed a Disputed Claim for Compensation against his employer, Onyx, with the Office of Workers’ Compensation. In his claim, Joseph alleged that Onyx had failed to pay him wage benefits as a result of the accident. Onyx answered, denied the claim, and alleged that Joseph had violated La.R.S. 23:1208. As a result of that violation, Onyx alleged Joseph had forfeited his right to all benefits. A trial was held on December 19, 2003 and by Judgment on January 8, 2004, the Workers’ Compensation Court found that Joseph had violated the provisions of La. R.S. 23:1208 and had, therefore, forfeited his right to benefits under the Louisiana Workers’ Compensation Act. The Court further ordered that the claim be dismissed with prejudice and Joseph was assessed with all costs of the proceedings. The workers’ compensation court also provided extensive written reasons for judgment.

Joseph filed a Motion for New Trial on January 16, 2004. That motion was denied and Joseph filed a Petition for Appeal on January 27, 2004. Joseph appeals to this Court alleging two assignments of error. First, he argues that the trial court erred in finding that he was not injured in the course and scope of his employment. Second, he alleges the trial court erred in finding that he violated the provisions of |4La. R.S. 23:1208 and that he forfeited any workers’ compensation benefits to which he may have been entitled.

For the reasons which follow, we affirm the workers’ compensation court’s judgment and agree that Joseph violated the provisions of La. R.S. 23:1208 and forfeited his right to workers’ compensation benefits.

DISCUSSION

Following the trial, the workers’ compensation court found that Joseph did make misstatements and/or misrepresentations and that he acted willfully for the purpose of obtaining benefits. The court noted inconsistencies in Joseph’s medical records, deposition testimony and his trial testimony. The court found that Joseph failed to disclose prior injuries to his back in order to claim benefits for his alleged back injury while working for Onyx. As a result of those findings, the workers’ compensation court found that Joseph had violated the provisions of La. R.S. 23:1208 and according to the statute, Joseph forfeited his right to workers’ compensation benefits. We agree with the workers’ compensation court’s findings.

La. R.S. 23:1208(A) states that “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 state[39]*39ment or representation.” La. R.S. 23:1208(E) states that “Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.”

There are three requirements for forfeiture of benefits under this statute governing misrepresentations concerning workers’ compensation benefits: (1) that there is false statement or representation; (2) it is willfully made; (3) it is made for the purpose of obtaining or defeating any benefit payment. Resweber v. Haroil Const. Co., 94-2708 (La.9/9/95), 660 So.2d 7. Once these requirements are met, |sthe statutory forfeiture provisions apply and must be enforced. Distefano v. B & P Const. Inc., 04-25 (La.App. 5 Cir. 5/26/04), 874 So.2d 407. The issue of whether or not a claimant has forfeited his right to workers’ compensation benefits based on making a false statement or misrepresentation is a question of fact that will not be disturbed on appeal unless the finding is clearly wrong or manifestly erroneous. Marler v. New Orleans Area Council, Boy Scouts of America, 01-1167 (La.App. 5 Cir. 3/13/02), 815 So.2d 131. Galeano v. Taco Bell Corp., 02-904 (La.App. 5 Cir. 2/25/03), 839 So.2d 472, writ denied, 03-0984 (La.5/16/03), 843 So.2d 1139.

The workers’ compensation court’s findings are not clearly wrong or manifestly erroneous. Therefore, we will not disturb the court’s findings on appeal. All three requirements for forfeiture under the statute are met and, therefore, Joseph’s right to benefits must be forfeited. The evidence and testimonies presented at trial showed that Joseph was involved in a work related accident in January 1987 while working for A-3M Vacuum Service, Inc. at the Bayou Steel facility in LaPlace, Louisiana. As a result of that accident, Joseph filed a tort suit against Bayou Steel and a workers’ compensation claim against A-3M. In both actions he alleged he suffered severe and disabling injuries to his legs, back and neck. He testified in a deposition in connection with those cases that he was struck by eighty tons of steel and knocked against a barge. He alleged he suffered pain across his lower back and left side of his neck, into his shoulder, and the pain was so severe he could not drive. In March 1995, Joseph settled the workers’ compensation claim with A-3M and dismissed the tort suit against Bayou Steel.

Joseph was also treated for a work related injury for a chemical exposure to acetonitrile at East Jefferson General Hospital in March 1998, although that injury did not involve Joseph’s back. In May 2000, Joseph and his wife were involved in a serious car accident in which their vehicle was broad sided and flipped several | (¿fanes. As a result of that accident, Joseph suffered fractured ribs and contusions and complained of and was treated for back pain by Dr. B. Johnson of St. John Physical Therapy. The medical report from May 31, 2000 stated that Joseph had complaints of back pain from upper to lower back and radiating into hips with numbness and weakness in both legs.

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892 So. 2d 36, 4 La.App. 5 Cir. 367, 2004 La. App. LEXIS 3079, 2004 WL 2873801, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joseph-v-onyx-industrial-services-lactapp-2004.