State, DOTD v. Berry

147 So. 3d 270, 2014 WL 3933029, 2014 La. App. LEXIS 1971
CourtLouisiana Court of Appeal
DecidedAugust 13, 2014
DocketNo. 49,186-WCA
StatusPublished
Cited by4 cases

This text of 147 So. 3d 270 (State, DOTD v. Berry) 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
State, DOTD v. Berry, 147 So. 3d 270, 2014 WL 3933029, 2014 La. App. LEXIS 1971 (La. Ct. App. 2014).

Opinion

MOORE, J.

LThe State of Louisiana, through the Department of Transportation & Development (“DOTD”), appeals a judgment assigning permanent total disability (“PTD”) to the claimant, James “Mike” Berry. We affirm.

Factual Background

Berry was employed as a laborer by DOTD. At the time of his injury in March 1986, his average weekly wage was $856.25, yielding a workers’ comp rate of $237.50 per week. On the day of the accident, he was working with a crew to clear brush and foliage from the side of La. Hwy. 17 in West Carroll Parish. While operating a chainsaw, he lost his footing on a steep ditch bank and fell, badly injuring his lower back.

DOTD acknowledged that the accident occurred and was work-related; it immediately placed him on temporary total disability (“TTD”), converting this in 1987 to supplemental earnings benefits (“SEB”), which it has continued to pay ever since. It has also paid for three major back surgeries 1 and three other orthopedic surgeries that stemmed from the back injury,2 all performed by Dr. Doug Brown, an orthopedist in Monroe. Dr. Brown’s reports over the years usually stated that Berry was completely unable to work but encouraged him to try to be active. Berry has also sought pain management with Dr. Vincent Forte since 2000, undergone a 12series of epidurals, received heavy doses of opioid pain medicine, and reported bouts of depression.

Berry testified that in the late 1980s, DOTD’s adjuster, John Atkins, advised him to be active and “do something, volunteer,” so he went to the Oak Grove Volunteer Fire Department and, later, helped form the Forest Volunteer Fire Department, where he was a volunteer, intermittently, for over 20 years, until May 2011. He testified that he never actually went to a fire, but made phone calls and scheduled training sessions for the other volunteers. He insisted he was never paid for this work, but admitted that in 2008-2010 he claimed a $500 tax credit for his services as fire chief. He also testified that around 2005, he allowed his son, Zach, whose wife had just given birth to a severely disabled child, to use a shed on his (Berry’s) property for a woodworking business called MOZAC, to supplement Zaeh’s income. Berry testified that he may have cut a little wood for Zach, talked to customers and sold MOZAC’s chairs and swings, but maintained this was just to help out his son: he was never paid for it. He also admitted that on his 2005 tax return, he reported a $4,900 profit or loss from business, and on his 2006 return, $8,768, but testified this was actually MOZAC’s income, which he and his wife misreported to protect Zach from creditors.

Apparently owing to the tax credits and income reported on Berry’s returns, and [272]*272his frequent comments to Dr. Brown about his volunteer work with the Forest Fire Dept., DOTD’s claims adjuster, FARA Insurance Services, began to investigate Berry’s status. FARA hired a private investigator, Alvin Ronquille, to conduct video surveillance on Berry in |sMarch and August 2010. Ronquille videoed Berry riding a tractor and plowing a garden at his home place on Hwy. 582 in Oak Grove, putting a large piece of glass in a pickup truck at the Forest Fire Dept., and dragging garbage cans out to the highway while riding a scooter. Ronquille also went to Berry’s property to buy a wooden chair; Berry had no chairs at the time, having just sold them all to local nursing homes, but said “he would make him one.” Ronquille came back sometime later and bought a chair for $125. Ronquille also videoed MOZAC’s street sign, which listed Berry’s home phone, and got one of its business cards, which listed Berry and his son as “operators.”

Procedural History

DOTD filed the instant Form 1008 in November 2010, demanding forfeiture of all benefits for fraud under La. R.S. 23:1208. Mediation was unsuccessful; in an August 2012 amended pretrial statement, DOTD alleged that in the alternative it was also contesting the “nature, extent and duration” of Berry’s disability.

At trial in May 2018, DOTD called Berry on cross-examination. He testified as outlined above, adding that Dr. Brown told him he had reached maximum medical improvement 20 years ago but had never released him to return to work. He admitted he could walk and do some paperwork, and wished he could work, but his back and legs were in constant pain, and the host of medications he was taking impaired his memory.3 He insisted he volunteered at the fire departments and helped his son’s woodworking ^business just to keep busy, and never made any income from these pursuits, although he did claim the statutory tax credit and some of his son’s income on some tax returns. He admitted doing the activities captured on the videos, but said that after he sits down for about 20 minutes his “legs just go ballistic.” On direct examination, he stated he had resigned from the Forest Fire Dept, in 1997 and again in 2010, but they kept calling him back; he finally retired in May 2011.

Berry’s wife, Patsy, corroborated most of his testimony, admitting that she had claimed Zach’s income on their tax returns.

Alvin Ronquille testified as to the surveillance he conducted; the DVDs were admitted into evidence and played for the court. He admitted that over three days of video surveillance, Berry was riding the tractor perhaps five or six minutes, and there was “lots of time” he was not doing anything.

Finally, FARA’s senior claims examiner, Daniel Mizell, described the long history of Berry’s claim. He referred to portions of Dr. Brown’s reports stating that Berry can work if he “can rest and control his activity” (April 1987), “can continue at same level of work” (1995), “can do sedentary work if he can move and change positions” (October 2001), and was “capable of some light duty work” (January 2012). In response to Mizell’s request, Dr. Brown had viewed the surveillance videos and handwritten, “Video says it all.” Mizell felt that Berry’s disability status was SEB.

|sAt the close of DOTD’s case, Berry moved for involuntary dismissal. The [273]*273WCJ granted this as to the forfeiture claim under § 1208, and DOTD does not contest this ruling on appeal. However, the WCJ denied the motion as to classification of disability, and the trial proceeded.

Berry testified on direct examination, graphically describing the residual weakness going from his waistline down his right leg, the “pins and needles” in his leg, the “fire in his thigh,” and the fact that he cannot even lie on his back; his stunning weight gain, from 185 lbs. at the time of the injury to 355 lbs. today, owing to lack of physical activity and the cocktail of medications; that one of DOTD’s earlier adjusters, Atkins, originally suggested the volunteer work, and another one, Ms. Radial, authorized him to get the motorized scooter and to have a walk-in tub installed at his house. Berry also offered his expansive medical records, including those of Dr. Brown, dating back to 1986; Dr. Vincent Forte, at Louisiana Pain Care; Dr. Bernie McHugh, Ouachita Neurosurgery Center; and Dr. Jorge Martinez, a neurological surgeon retained by DOTD.

Action of the WCJ

The WCJ ruled that despite Berry’s history with the fire department and the images on the videos, the court “cannot rely simply on what appears to be the case.” The court found that Dr.

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Bluebook (online)
147 So. 3d 270, 2014 WL 3933029, 2014 La. App. LEXIS 1971, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-dotd-v-berry-lactapp-2014.