Wright v. Cypress General Contractors

76 So. 3d 149, 11 La.App. 3 Cir. 238, 2011 La. App. LEXIS 1165, 2011 WL 4578597
CourtLouisiana Court of Appeal
DecidedOctober 5, 2011
DocketNo. 11-238
StatusPublished

This text of 76 So. 3d 149 (Wright v. Cypress General Contractors) 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
Wright v. Cypress General Contractors, 76 So. 3d 149, 11 La.App. 3 Cir. 238, 2011 La. App. LEXIS 1165, 2011 WL 4578597 (La. Ct. App. 2011).

Opinions

KEATY, Judge.

|,The defendant, Cypress General Contractors (Cypress), appeals from an October 26, 2010 judgment rendered by the workers’ compensation judge (WCJ) in favor of the plaintiff, Nathan Wright (Wright), denying its defense of fraud; reinstating Wright’s indemnity and medical benefits; assessing it with a $8,000 penalty for arbitrary and capricious termination of benefits; awarding Wright $13,500 in attorney fees; and assessing it with all costs.

At issue in this appeal is whether Wright committed fraud and, pursuant to La.R.S. 23:1208, thereby forfeited his right to receive workers’ compensation benefits by failing to report income derived from a business owned by him and/or his wife, Christine. For the following reasons, we find no error in the WCJ’s conclusion that Wright did not commit the fraud alleged by Cypress, and we affirm the judgment in its entirety.

FACTS AND PROCEDURAL HISTORY

In Wright v. Cypress General Contractors, Inc., 05-700 (La.App. 3 Cir. 12/30/05), 918 So.2d 526, writ denied, 06-238 (La.4/24/06), 926 So.2d 553, this court affirmed the WCJ’s finding that Wright suffered a compensable work-related injury to his left knee on March 14, 2002, and was thus entitled to reinstatement of indemnity and medical benefits from Cypress. In late 2007, Cypress began to suspect that Wright may have been producing and selling custom goose calls through a company known as Redbone Custom Calls (Red-bone). It hired private investigator Darryl Scott Johnson in an attempt to determine Wright’s involvement in Redbone. Mr. Johnson corresponded with Redbone over the telephone and purchased four goose calls, which were mailed to him along with instructional videos which depicted Wright instructing purchasers on how to use and maintain the goose calls. Thereafter, Cypress requested that Wright fill out a series of ^Employee’s Monthly Report of Earnings Forms (1020s) covering the period from January 1, 2006 to December 31, 2007. On each of the 1020s, Wright checked “No” in response to the following questions:

2. For the period covered in this report, did you receive a salary, wage, sales commission, or payment, including cash, of any kind?
3. For the period covered in this report, were you self-employed or involved in any business enterprise? These include but are not limited to farming, sales work, operating a business (even if the business lost money), child care, yard work, mechanical work, or any type of family business.

Cypress terminated Wright’s benefits on January 13, 2008, and Wright filed a 1008 Disputed Claim for Compensation (1008) approximately two months later. This matter was tried on June 24, 2010, after which the WCJ requested post-trial memo-randa and took the matter under advisement. On October 4, 2010, the WCJ rendered oral reasons for judgment in open court finding that Wright did not violate La.R.S. 23:1208, and thus denying Cypress’s defense based upon that statute. Wright’s medical benefits were reinstated, and his indemnity benefits were reinstated retroactive to January 14, 2008, based on the weekly indemnity rate of $398. Cypress was assessed a penalty of $8,000 for [152]*152its arbitrary and capricious termination of Wright’s benefits, and it was ordered to pay Wright’s attorney fees, which were assessed at $13,500. The awards were to include interest, and all costs were assessed against Cypress. Written judgment was signed in conformity with the oral reasons on October 26, 2010.

Cypress now appeals, arguing that the WCJ committed manifest error in finding that Wright did not violate La.R.S. 23:1208 and in finding that it acted arbitrarily and capriciously in terminating Wright’s benefits.

LDISCUSSION

We recently discussed the standard of review to be employed in workers’ compensation cases, noting:

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 [factfinder’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).
“The determination of coverage is a subjective one in that each case must be decided from all of its particular facts.” Jackson v. Am. Ins. Co., 404 So.2d 218, 220 (La.1981). This court has held that, in light of that standard of review, “great deference is accorded to the [workers’ compensation judge’s] factual findings and reasonable evaluations of credibility.” Cent. Lumber Co. v. Duhon, 03-620, p. 3 (La.App. 3 Cir. 11/12/03), 860 So.2d 591, 593, writ denied, 04-315 (La.4/2/04), 869 So.2d 880 (quoting Garner v. Sheats & Frazier, 95-39, p. 7 (La.App. 3 Cir. 7/5/95), 663 So.2d 57, 61).

Green v. Nat’l Oilwell Varco, 10-1041, pp. 3-4 (La.App. 3 Cir. 4/27/11), 63 So.3d 354, 357-58 (alteration in original) (quoting Foster v. Rabalais Masonry, Inc., 01-1394, pp. 2-3 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160, 1162, writ denied, 02-1164 (La.6/14/02), 818 So.2d 784).

Fraud

Louisiana Revised Statutes 23:1208(A) provides that it shall be unlawful for any claimant or employer “to willfully make a false statement or representation” “for the purpose of obtaining or defeating” any workers’ compensation benefit or Inpayment. A claimant who violates the statute forfeits his or her right to workers’ compensation benefits. La.R.S. 23:1208(E).

“The requirements for forfeiture of benefits under Section 1208 governing misrepresentations concerning workers’ compensation benefits are that: (1) there is a false statement or representation; (2) it is willfully made; and (3) it is made for the purpose of obtaining or defeating any benefit or payment.” R & R Steel Erectors v. Watson, 01-1322, pp. 3-4 (La.App. 3 Cir. 3/6/02), 809 So.2d 1228, 1231. An appellate court reviews a WCJ’s factual findings with regard to a claim of forfeiture of benefits under the manifest error/clearly [153]*153wrong standard. Doyal v. Vernon Parish Sch. Bd., 06-1088 (La.App. 3 Cir. 2/7/07), 950 So.2d 902, writ denied, 07-832 (La.6/15/07), 958 So.2d 1190.

Wright’s wife, Christine, testified that her mother had suffered a stroke some years ago which resulted in right side paralysis that left her bedridden and unable to speak or walk. Her father had been her mother’s primary caregiver, but he had gotten ill and died about three years ago. Thereafter, Christine’s mother moved into their home, resulting in Christine quitting her job and taking over her mother’s care.

Wright testified that before his injury and disability, he had won four goose calling world championships using calls that he had built.

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Related

Central Lumber Co. v. Duhon
860 So. 2d 591 (Louisiana Court of Appeal, 2003)
Stobart v. State Through DOTD
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Garner v. Sheats & Frazier
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Smith v. Louisiana Dept. of Corrections
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Sistler v. Liberty Mut. Ins. Co.
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772 So. 2d 326 (Louisiana Court of Appeal, 2000)
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Doyal v. VERNON PARISH SCHOOL BD.
950 So. 2d 902 (Louisiana Court of Appeal, 2007)
Foster v. Rabalais Masonry, Inc.
811 So. 2d 1160 (Louisiana Court of Appeal, 2002)
Jackson v. American Ins. Co.
404 So. 2d 218 (Supreme Court of Louisiana, 1981)
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R & R Steel Erectors v. Watson
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76 So. 3d 149, 11 La.App. 3 Cir. 238, 2011 La. App. LEXIS 1165, 2011 WL 4578597, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wright-v-cypress-general-contractors-lactapp-2011.