Mallory v. Pineapple Management Services, Inc.

837 So. 2d 693, 2002 La.App. 1 Cir. 0126, 2002 La. App. LEXIS 4025, 2002 WL 31926435
CourtLouisiana Court of Appeal
DecidedDecember 31, 2002
DocketNo. 2002 CA 0126
StatusPublished
Cited by1 cases

This text of 837 So. 2d 693 (Mallory v. Pineapple Management Services, 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
Mallory v. Pineapple Management Services, Inc., 837 So. 2d 693, 2002 La.App. 1 Cir. 0126, 2002 La. App. LEXIS 4025, 2002 WL 31926435 (La. Ct. App. 2002).

Opinion

_[¿FOGG, J.

In this workers’ compensation suit, the employer raises issues of causation and fraud. In her answer, the former employee requests additional attorney’s fees and seeks sanctions against counsel for the employer. For the following reasons, we affirm the trial court and award additional attorney’s fees.

On May 1, 2000, Lynn Mallory was employed by Fairfield Inn2 in the housekeeping department. On May 9, 2000, she fell while cleaning a bathtub in a guest room. Fairfield Inn paid some of Mallory’s medical expenses, but refused to pay disability benefits. Mallory filed a claim for workers’ compensation benefits, and Fairfield Inn reconvened asserting Mallory willfully made false statements to obtain benefits, in violation of LSA-R.S. 23:1208. Fair-field Inn moved for summary judgment on the issue of Mallory’s alleged fraud. After concluding the hearing on Fairfield Inn’s motion and the trial on the merits, the workers’ compensation judge found Fair-field Inn failed to prove the absence of a genuine issue of material fact concerning Mallory’s alleged fraud and denied the motion for summary judgment. The workers’ compensation judge then awarded Mallory indemnity and medical benefits, penalties, and attorney’s fees. Fairfield Inn appealed, and Mallory answered.

Fairfield Inn asserts the workers’ compensation judge erred in denying its motion for summary judgment as it is undisputed that Mallory provided Fairfield Inn false medical information concerning her prior leg problems and the length of her recovery from prior back surgery. Specifically, she denied any prior problems with either leg. However, her medical records [696]*696indicate that in September 1984, following back surgery of May 1984, Mallory complained to her treating surgeon of her left leg giving way. In addition, Fairfield Inn asserts Mallory’s statement that her recovery |sfrom a 1984 surgery lasted “maybe a year, maybe better” is in conflict with her actual recovery, which lasted two years and three months. It asserts that these statements constitute fraud and result in the forfeit of her right to receive workers’ compensation benefits.

LSA-R.S. 23:1208 provides that workers’ compensation benefits shall be forfeited by an employee who willfully makes a false statement for the purpose of obtaining workers’ compensation benefits. This statute applies to any false statement or misrepresentation, including one concerning a prior injury, made specifically for the purpose of obtaining workers’ compensation benefits and encompasses any false statements or misrepresentations made to anyone, including the employer or physicians, when made willfully or deliberately for the purpose of obtaining benefits. Resweber v. Haroil Constr. Co., 94-2708, 94-3138 (La.9/5/95), 660 So.2d 7.

Although Mallory’s statements may not have been completely accurate, we fail to see how such an insignificant failure to recall exact details concerning an event sixteen years prior to her injury could be considered willful false statements.

Fairfield Inn also asserts the workers’ compensation judge erred in admitting into evidence Mallory’s late-filed affidavit, offered in opposition to Fairfield Inn’s motion for summary judgment. We find any error was harmless. The declarations contained in the affidavit were merely restatements of Mallory’s testimony given at her deposition, which was entered into evidence by Fairfield Inn in support of its motion. See Bergeron v. Blake Drilling & Workover Co., Inc., 599 So.2d 827 (La.App. 1 Cir.), writs denied, 605 So.2d 1117, 1119 (La.1992). Fairfield Inn failed to establish an absence of material fact concerning any fraud committed by Mallory. The workers’ compensation judge properly denied Fairfield Inn’s motion for summary judgment.

Fairfield Inn asserts the workers’ compensation judge erred in finding Mallory met her burden of proving a com-pensable injury. A claimant must prove by a ^preponderance of the evidence that an employment accident occurred and that it had a causal relationship to the disability. A worker’s testimony alone may be sufficient to discharge this burden of proof if no other evidence discredits or casts serious doubt upon the worker’s version of the incident and the worker’s testimony is corroborated by the circumstances following the alleged incident. Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends, and by medical evidence. Bruno v. Harbert Int'l Inc., 593 So.2d 357 (La.1992). The trier of fact’s determination as to whether a compensable injury was suffered is a question of fact and will not be disturbed unless manifestly erroneous or clearly wrong. Jackson v. Savant Ins. Co., 96-1424 (La.App. 1 Cir. 5/9/97), 694 So.2d 1178.

At trial, Mallory testified she had one foot inside and one foot outside the bathtub when she fell on her back and slid onto her left side. No one else witnessed her fall. She immediately reported the fall to a co-worker, who reported the accident to Mallory’s supervisor. Mallory was transported by her supervisor to the hospital. At the hospital, Mallory complained of back and leg pain, and she was diagnosed with a lumbar strain. An MRI did not reveal a herniated disc, but based on Mallory’s prior back surgery and her current [697]*697complaints of pain, Dr. Sefan Pribil, a neurosurgeon, recommended conservative treatment. Dr. Pribil opined Mallory was unable to work.

Mallory obtained a second opinion from Dr. Stuart Phillips, an orthopedic surgeon, who diagnosed Mallory with a recurrent disc herniations caused by her fall. Dr. Phillips initially recommended conservative treatment, but ultimately recommended surgery. Dr. Phillips found Mallory unablé to work. Dr. Claude Williams, an orthopedic surgeon, found a slight disc bulge but no evidence of recurrent disc herniations. He did not recommend surgery. Dr. Williams found Mallory could perform sedentary work.

IsDr. John Sweeney, an orthopedic surgeon, examined Mallory at Fairfield Inn’s request. Dr. Sweeney found Mallory’s symptoms exaggerated and no recurrent disc herniations attributable to the May 9, 2000 fall. Dr. Sweeney diagnosed Mallory with low back pain and did not recommend surgery. Dr. Sweeney did not find Mallory impaired from working as a housekeeper.

After a thorough review of the record, we find no manifest error in the workers’ compensation judge’s determination that Mallory satisfied her burden of proving a compensable injury.

Fairfield Inn disputes Mallory was hired as a full-time employee. Fairfield Inn asserts Mallory was a part-time employee, hired to work between sixteen and thirty hours per week. Mallory testified she was hired to work full-time, and she would not have accepted an offer of part-time employment. Although Mallory’s personnel records are marked “PT”, allegedly indicating part-time status, this handwritten notation does not appear to be in Mallory’s handwriting. Moreover, Patricia LeBlanc, general manager of Fairfield Inn, testified that Fairfield Inn had never had a part-time employee. Therefore, we cannot say the workers’ compensation judge erred in finding Mallory was a full-time employee.

Fairfield Inn also asserts the workers’ compensation judge erred in awarding Mallory penalties and attorney’s fees. Fairfield Inn contends penalties are not available upon the discontinuation of workers’ compensation benefits, citing LSA-R.S. 23:1201.2.

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Bluebook (online)
837 So. 2d 693, 2002 La.App. 1 Cir. 0126, 2002 La. App. LEXIS 4025, 2002 WL 31926435, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mallory-v-pineapple-management-services-inc-lactapp-2002.