Lafayette Steel Erector, Inc. v. Constance

137 So. 3d 1251, 13 La.App. 3 Cir. 1367, 2014 WL 1487734, 2014 La. App. LEXIS 1025
CourtLouisiana Court of Appeal
DecidedApril 16, 2014
DocketNo. 13-1367
StatusPublished
Cited by3 cases

This text of 137 So. 3d 1251 (Lafayette Steel Erector, Inc. v. Constance) 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
Lafayette Steel Erector, Inc. v. Constance, 137 So. 3d 1251, 13 La.App. 3 Cir. 1367, 2014 WL 1487734, 2014 La. App. LEXIS 1025 (La. Ct. App. 2014).

Opinion

KEATY, Judge.

Iiln this workers’ compensation case, Appellants, the employer and its insurer, appeal from a judgment rendered by the workers’ compensation judge (WCJ) in favor of claimant. For the following reasons, we affirm the judgment and award claimant additional attorney fees for work done on appeal.

FACTS AND PROCEDURAL HISTORY

Claimant, James Constance, began working as a welding tacker for Lafayette Steel Erector, Inc. on September 21, 2009. He allegedly injured his left ankle and foot in an unwitnessed accident that occurred on October 27, 2009. He was sixty years of age at the time. Constance returned to work in a modified capacity until he was laid off on November 6, 2009. Thereafter, Lafayette Steel and its workers’ compensation insurer, The Gray Insurance Company, (hereafter sometimes referred to collectively as Appellants) paid medical benefits and indemnity benefits to Constance based upon the maximum level allowed at the time of the accident, $577.00 per week. On March 23, 2010, orthopedic surgeon, Dr. Christopher Hebert, performed surgery on Constance’s left foot, which consisted of a tendon transfer and reconstruction. Constance also claimed that he later injured his right shoulder in December 2010, when his left foot gave out while he was walking down stairs and had to grab the handrail to stop himself from falling. On December 2, 2012, Appellants reduced Constance’s indemnity to $416.00 per week in supplemental earnings benefits (SEBs).

[1256]*1256The matter proceeded to trial on January 15 and 31, 2013. In oral reasons for judgment rendered on May 1, 2013, the WCJ found that Constance injured his left foot and ankle in a work-related accident on October 27, 2009. Appellants’ |gLa.R.S. 23:12081 defense was denied. Constance was awarded SEBs based on a zero earnings capacity from December 2, 2012, the date of the benefit reduction, forward, along with a $2,000.00 penalty for Appellants’ improper reduction of benefits. The WCJ found that Constance’s right shoulder injury was compensable and not prescribed and awarded him a $2,000.00 penalty for Appellants’ failure to reasonably controvert that claim. Because it determined that the initial indemnity payment to Constance was untimely and not reasonably controverted, he was awarded a $1,600.00 penalty and a $500.00 attorney fee, both to be paid solely by Lafayette Steel. Additional attorney fees of $13,900.00 were assessed against Appellants, and they were ordered to pay litigation expenses totaling $1,173.62. Finally, Appellants were ordered to pay legal interest on all amounts awarded in the judgment.

Appellants now appeal, asserting that the WCJ committed legal or manifest error: 1) in denying their fraud defense; 2) in finding Constance credible; 3) in finding an accident and injury; 4) in not finding Constance’s shoulder injury prescribed; 5) in finding that Constance had no wage earning capacity; 6) in holding that Constance’s layoff did not eliminate his right to SEBs; 7) in assessing penalties and attorney fees against them regarding the reduction of benefits; 8) in assessing penalties and attorney fees given the significant evidence calling into question the compensability; and 9) in the quantum of attorney fees awarded. Constance answered the appeal requesting that this court uphold the judgment of the WCJ and award him additional attorney fees on appeal.

| ¡¡DISCUSSION

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Smith v. Louisiana Dep’t of Corrections, 93-1305 (La.2/28/94); 633 So.2d 129. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart v. State, 617 So.2d 880 (La.1993). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Id. Thus, “if the [fact-finder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

Foster v. Rabalais Masonry, Inc., 01-1394, pp. 2-3 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160, 1162 (alteration in original), writ denied, 02-1164 (La.6/14/02), 818 So.2d 784.

The workers’ compensation judge has ' great discretion to assign whatever weight he deems appropriate to evidence that has been admitted. La. Workers’ Comp. Corp. v. Gray, 34,731 (La.App. 2 Cir. 5/9/01), 786 So.2d 310. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the [1257]*1257appellate court may feel that its own evaluations and inferences are as reasonable.

Vidrine v. La-Tex Rubber & Specialties, Inc., 07-157, p. 4 (La.App. 3 Cir. 5/30/07), 958 So.2d 146, 149.

The Fraud Defense

Louisiana Revised Statutes 23:1208(A) provides that it is “unlawful for any person, for the purpose of obtaining ... any benefit or payment ... to willfully make a false statement or representation.” “Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.” La.R.S. 23:1208(E).

In order for there to be a forfeiture of workers’ compensation benefits under La.R.S. 23:1208, the employer must prove (1) the Rclaimant made a false statement or representation, (2) that the statement was willfully made, and (3) the statement was made for the purpose of obtaining or defeating any benefit or payment. Resweber v. Haroil Constr. Co., 94-2708, 94-3138 (La.9/5/95), 660 So.2d 7; Babineaux v. Moss Motors, 06-749 (La.App. 3 Cir. 12/6/06), 944 So.2d 882. However, the mere making of inadvertent or inconsequential false statements will not result in forfeiture.

Rougeou v. St. Francis Cabrini Hosp., 12-854, p. 5 (La.App. 3 Cir. 2/6/13), 107 So.3d 851, 856.

Appellants assert that Constance violated the fraud statute by denying prior right-foot-nerve injuries to his doctors, by misstating his inability to drive, by exaggerating his symptoms when visiting medical providers, and by misrepresenting his involvement in prior automobile accidents. Constance counters that he did not know if he had suffered injury to the nerves in his right foot as a result of motorcycle accident that occurred in the 1990s. There is evidence, however,, that he disclosed the occurrence of that accident and injury to his orthopedist, Dr. Hebert. Constance submits that it was Dr. Hebert who opined that such prior accident could have left Constance with a residual nerve problem in his right foot and possible susceptibility to nerve problems in his feet. Constance submits that he was mistaken when he stated in deposition that he had not driven before April 2012 and that he testified truthfully at trial regarding his driving habits/ability. He also admits that after viewing surveillance video showing inconsistencies between how he ambulated when attending doctors’ appointments, Dr. Hebert expressed some concerns about the veracity of his complaints. Nevertheless, Constance contends that Dr.

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Bluebook (online)
137 So. 3d 1251, 13 La.App. 3 Cir. 1367, 2014 WL 1487734, 2014 La. App. LEXIS 1025, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lafayette-steel-erector-inc-v-constance-lactapp-2014.