HIGGINS & GREMILLION, L.L.C.
Wade A. Langlois III
New Orleans Office:
Oakwood Corporate Center
401 Whitney Avenue, Suite 500
Gretna, Louisiana 70056
Baton Rouge Office:
2223 Quail Run Drive, C-2
Baton Rouge, Louisiana 70808
DEFENSE NEWSLETTER FOR JULY 2018
FRAUD-FORFEITURE FOR MISREPRESENTATION
Most of the fraud cases we come across involve a history of treatment/injuries which the claimant fails to disclose. Turner v. Chicago Bridge and Iron Company, 52,167 (2 Cir. 6/27/18), was one of those cases.
Alex Turner worked as a carpenter’s helper for Chicago at a construction site near Hackberry, Louisiana. Forty days after he was hired, he claimed to have suffered a back injury. He was initially sent back to work at sedentary duty. After a short time, Turner complained that he could not do the sedentary work because of back pain and was terminated for “insubordination”. He was sorting cards at a table and claimed that this caused him horrific back pain. Employer then denied benefits.
One of the reasons that claimant was denied benefits was that he made misrepresentations in failing to disclose prior treatment for his low back. The employer argued that he forfeited benefits under Sec. 1208 as a result.
In his deposition, Turner was asked the following question:
Q: Prior to this work accident, do you ever remember having any – not the one after the motor vehicle accident, but did you have any other x-rays or MRIs taken of your back?
A: No, ma’am.
Prior to giving that answer, claimant had admitted to suffering a prior neck injury, but denied any history of low back pain.
This testimony was “contradicted” by plaintiff’s medical records. Defendants introduced chiropractic records that showed that the claimant complained of hip and low back pain just one year prior to his alleged work accident. He reported to his chiropractor, at that time, that he also had pain and numbness radiating into his foot. Turner indicated to his chiropractor that he was a bull rider and had been having pain for 8 months. The records noted that this was a chronic problem with essentially constant pain. Claimant had an MRI.
The Court used the “code” that all claimants’ attorney’s use to minimize misrepresentations. “Because forfeiture of workers’ compensation benefits is a harsh remedy, Section 1208 must be strictly construed.” As soon as you hear this from a court, look out.
In addition to misrepresenting his prior treatment in his deposition, defendants pointed out that claimant had filled out a post hire medical questionnaire which did not disclose his history of low back problems.
In ruling in favor of the plaintiff, the Court had to engage in some serious gymnastics to find that Turner’s misrepresentations were not intentional and did not result in forfeiture. Talk about twisted logic.
As to the failure to disclose the prior low back problems on the PHMQ, the Court noted that claimant’s prior MRI indicated he had bulging discs at several levels of his low back. The PHMQ specifically asked whether or not claimant had any prior “herniated” or “ruptured” discs in his low back so the Court reasoned that claimant was truthful in his denial. He didn’t deny having “bulging” discs because that question was not asked. He only denied “herniated” and “ruptured” discs.
The employer pointed out that the form also asked that claimant disclose “any other medical condition not listed on this form”. Of course, claimant failed to disclose his prior low back problems in answer to the question also. The Court wrote this failure off and stated that the question was “overbroad and places an excessive burden on the employee”. The Second Circuit then stated:
It is the employer’s responsibility to ask the questions it wants answered. For example, had Chicago’s questionnaire asked if you “have ever had a back injury or been treated for back pain” Turner would have been prompted to think about and required to disclose his pre-existing back condition and prior treatment. In contrast, Chicago’s instruction quoted above does not prompt the employee to think about particular medical conditions he or she experienced in the past. Imposing such an expansive and open ended disclosure obligation on employees under penalty of forfeiture of workers’ compensation benefits, is impermissible.
If I hadn’t been doing this for 30 years, I would be shocked by the Court’s position on this. Of course, it was all the employer’s fault that Mr. Turner misrepresented his medical history. Who could possibly blame poor Mr. Turner?
The Second Circuit also wrote off the false deposition testimony. It found that the workers’ compensation judge “could reasonably have concluded that Turner did not intend to conceal this part of his medical history from Chicago.” It was “feasible” for Turner to claim he didn’t recall having an MRI less than 18 months before his alleged work accident. MRI’s are so routine that they must be easy to forget. (Am I being too sarcastic?)
Incredibly, the Court also found that Turner had disclosed his prior neck injury and that this disclosure “could have been what enabled Chicago to find these medical records” of the history of low back treatment. “Therefore, the WCJ reasonably could have concluded that Turner had no intent to deceive Chicago”.
Really? Claimant could remember the treatment for his neck, but not his low back? Because he could disclose the neck treatment, this proves he didn’t mean to hide his low back treatment?
Shelton v. Smitty’s Supply, Inc., 17-1419 (1 Cir. 6/12/18) is another case where the employer made an argument that the claimant forfeited benefits because of misrepresentations. Mr. Shelton worked at a packaging facility. His work required him to frequently climb a ladder in order to refill or restart a hopper in a production line. On February 17, 2016, Shelton was descending a ladder when he missed a step and fell to the floor. The accident was fully recorded by a surveillance camera at the facility. Claimant injured his knee in this fall.
In reporting the accident, Shelton stated that he injured his knee when climbing the ladder.
Employer argued that because of this discrepancy (climbing vs. descending) the claimant made misrepresentations. Employer also argued that the video demonstrated that the claimant “staged” the accident.
Both the OWC Judge and the Court of Appeal easily dismissed these arguments. The Court did not think that the climbing vs. descending issue was significant. Claimant made many trips up and down the ladder every day and there was actually a video which showed him fall. While this was technically a “false” statement, that did not necessarily make it a “willful misrepresentation”.
As to the alleged “staging” of the accident, the Courts found that the video could reasonably be viewed to show Shelton “descending the ladder normally, miscalculating which step he is on, stepping downward, and stumbling to the floor upon losing his balance.” So we don’t get to see the video we will never know.
Shelton also had a pre-existing knee condition. He admitted to this, but defendant argued that he did not admit the extent of that condition. Six months prior to the alleged accident, claimant had an injection in his knee and an MRI. There was no further evidence of any treatment after that visit. Claimant testified that his knee was “fine” for that six month period until the work accident.
Claimant’s treating physician contradicted the claimant’s testimony. The doctor testified that the claimant’s knee was not “fine” before the accident. The MRI revealed a possible ACL tear and the doctor noted that if Shelton’s condition persisted, he could be a candidate for a diagnostic arthroscopy.
This OWC Judge and Court of Appeal also wrote off these discrepancies. The Court stated that because an ACL and future arthroscopy were only possibilities, claimant could have failed to comprehend the specifics of what the doctor told him and claimant’s testimony could be “dismissed as error common to an imperfect memory.”
In this case, the Court again used the claimant’s admissions against the employer. Shelton did disclose his prior condition and treatment. The Court reasoned that this disclosure was “entirely inconsistent” with an attempt to hide a pre-existing condition. (This is the best argument claimant made, in my opinion.)
Not only did the employer lose this case, the OWC Judge awarded the claimant two $20,000.00 attorney’s fees in this case. ($40,000.00 total). One award was for the failure to timely pay indemnity benefits and the other was for the failure to timely authorize and/or pay medical benefits.
Claimant attorney acknowledged that the statute only allows the award of one attorney’s fee, but argued that the Court should consider $40,000.00 as one fee and not two separate $20,000.00 fees. The Court of Appeal ignored that argument and reduced the award to one $20,000.00 fee.
There was a dissent on the award of penalties and attorney’s fees. The dissenting Judge thought that there was a reasonably close factual and/or legal question regarding the claimant’s history of knee problems so the employer should not have been penalized.
SUPPLEMENTAL EARNINGS BENEFITS-EASY PEASY FOR A CLAIMANT
Adams v. Georgia Gulf Lake Charles, LLC, 17-723 (3 Cir. 6/27/18), involved a claim for SEB for an occupational hearing loss.
In January 2010, Mr. Adams had back surgery. He chose to retire from Georgia Gulf in January 2011 at the age of 65, but testified he had planned on working until he was 70. He had been employed by Georgia Gulf for over 40 years as a construction worker, boilermaker, and crane operator. He established that he had suffered a hearing loss during that employment.
The case does not tell us what the claimant’s wage rate was, but notes that his compensation rate was the 2011 maximum of $579.00 per week. Adams contended that he was entitled to SEB because there was no proof that he could earn 90% of his pre-injury wage despite his hearing loss.
In order to prove an entitlement to SEB, a claimant first has to prove that he is unable to earn 90% of his pre-injury wage as a result of his work related disability. The burden then shifts to the defendant to prove the availability of employment. The employer argued that claimant did not prove that his hearing loss prevented him from earning 90% of his pre-injury wage. His only restriction was to avoid excessive noise. He had made no effort to find employment after he retired in January 2011 at the age of 65.
In this case, the Court awarded the claimant SEB. It explained that a claimant can meet his burden by proving that he is an older worker, with limited education and a specialized work history, that he is restricted from working in his previous employment, and that he had earned more than minimum wage. It was then up to the defendant to prove that there was employment available within the employee’s restrictions and what wages the employee would be able to earn. The employer offered no such evidence in this case. It relied strictly on the fact that the claimant did not prove any inability to earn 90% of his pre-injury wage.
While I agree with the employer’s argument in this case, this plaintiff probably had a pretty high AWW because he had been with the same company for 40 years so that once the Court found he had met his burden, it would have been hard for the employer to prove a wage rate that would reduce the SEB. Once the employer lost on that initial issue, it was probably over.
To insult to injury, claimant was awarded $8,000.00 in penalties and $30,000.00 in attorney’s fees.
The Court did reduce the award because of the claimant’s retirement. The statute limits a person who has retired to 104 weeks of benefits. The Court thought that it was obvious that Mr. Adams had no intention to return the work force and so limited his benefits to 104 weeks.
There was again a dissent from one of the Judges. The dissent noted that the plaintiff put on no evidence of an inability to earn wages as a result of his hearing loss. Adams did not leave work due to his reduced hearing, but “simply chose to retire due to his age and his back.” His “hearing loss was in no way a factor in his decision to retire, nor did it affect his ability to do his job, by his own admission.”
A key question in an SEB case is, why is the employee not working? Is it because of his disability or is it for some unrelated reason? Since this claimant could have continued in his same job but for his back surgery and retirement, how is he entitled to SEB? And penalties and fees? I don’t get it.
PROOF OF A WORK ACCIDENT-EVEN A LIAR SHOULD GET BENEFITS
Jeansonne v. Department of Public Safety and Corrections, 17-635 (3 Cir. 6/6/18), involved a claimant who contended he had two work accidents.
Mr. Jeansonne worked in maintenance at the Cecil J. Picard Youth Center in Bunkie, Louisiana beginning in 2001. He filed a Disputed Claim for Compensation and alleged a work accident on June 10, 2015 and another on March 17, 2016. Prior to the March 2016 accident, Jeansonne had never reported a work accident.
Following the alleged June 2015 work accident, the claimant had back surgery –a lumbar fusion at L4-5 on July 17, 2015. Following that surgery, he was released to return to work with no restrictions by his treating doctor.
While Jeansonne informed his supervisor that he had back pain and needed back surgery, he never reported that he had a work accident.
In addition to not reporting a work accident to the employer, claimant told his doctor he injured his back at home and used his health insurance to pay for the treatment.
After returning to work for about a week, Jeansonne told his supervisor that he couldn’t continue to work. The supervisor testified that Jeansonne told him, “I just can’t do this kinda work anymore.” Two months later, Jeansonne finally reported to his treating doctor that he had injured himself at work in June 2015 and then again in March 2016.
Jeansonne claimed that he did not report the work accidents because he loved his job and did not want to lose it. He thought it would be easier to use his health insurance and collect vacation and sick time for the time he missed from work. He admitted that he knew he was required to report work place accidents. He had reported a prior work place accident. There were safety meetings where employees were instructed on the protocol for reporting work place accidents.
Jeansonne’s wife testified and supported his testimony. She claimed that they thought they would not be able to get the surgery he needed if it was reported as a workers’ comp accident.
The case states that Jeansonne had prior back injuries and prior surgeries, but glosses over this. It provides no specifics about these prior injuries and the treatment that resulted.
The OWC Judge denied the claimant benefits. In doing so, he stated, “Mr. Jeansonne is a person of, in my view, small credibility, if any credibility at all.”
Courts of Appeal always state that they should never reverse a trial decision based upon credibility of the witnesses and the claimant. They seem to especially hype this position in cases where they don’t want to reverse the finding in favor of a claimant. In this case, however, the Court had no problem replacing its credibility determination with the credibility determination made by the OWC Judge.
Whether or not Jeansonne was believable in his claims was the central issue in this case. The OWC Judge made it clear that he did not find Jeansonne believable. This decision by the OWC Judge was supported by a great deal of evidence which the Court of Appeal acknowledged. Even so, they reversed the decision stating, “There is no disputing the unusual circumstances of Mr. Jeansonne’s claim.”
In doing so, they noted that Jeansonne was a long term employee. His supervisor testified that he was a hard worker and had a good attitude. The Court even claimed that the fact that he failed to report a workers’ compensation accident and used his health insurance supported the case that he wanted to return to work as quickly as possible. How does a person who lies about a work accident use that to prove that he is honest and hard working? Now you know.
The good news is that no penalties and attorney’s fees were awarded. Lucky!
There was a dissenting Judge in this case. That Judge simply made the point that the OWC Judge made a valid credibility determination in deciding not to believe Jeansonne’s claims, and the court of appeal should not reverse such a ruling.
AGGRAVATION OF A PRE-EXISTING CONDITION
The Shelton case discussed above on the forfeiture issue also involved a causation determination. In that case, claimant had long standing knee problems. He had last seen his doctor about six months prior to the accident and had an injection and an MRI of his left knee. At that visit, the doctor told him he had a possible torn meniscus and would might need arthroscopic surgery. However, the doctor did not restrict the claimant’s activities at that time.
Mr. Shelton returned to work, apparently with no problem doing his job until the accident.
Claimant’s MRI’s before and after the accident were basically the same. So were the doctor’s findings and recommended treatment.
In finding in favor of the claimant, the Court emphasized that between the injection and MRI six months before the accident, and the accident, claimant did not return to the doctor because he had no further problems. He did not miss any work. The Court also emphasized that the treating physician testified that an aggravation of the condition was “possible”. Also, claimant had no restrictions before the work accident.
Again, I can only say “wow”! What does an employer need to do to win a case?
CHOICE OF PHYSICIAN
When does an employee get a choice of physician? The Workers’ Compensation Act gives an employee a right to an expedited hearing for a choice of physician in any field or specialty. According to two new cases, the employee does not have to prove he had an accident or any injury caused by a work accident to get a choice of physician.
In Kyle v. Boise Cascade Company, 18-384 (3 Cir. 7/5/18), the employee alleged a hearing loss. The employer argued there was no evidence to show that the employee’s hearing loss was work related. The OWC Judge denied the choice of physician, and the Third Circuit reversed that denial.
The OWC Judge found at the hearing that there was at best “a tenuous link” between the hearing loss and the employment. Even so, the Court of Appeal reversed this finding and stated that causation is not an issue in determining whether or not an employee has a right to a choice of treating physician paid for by the employer. The employer can only deny the choice of physician if it proves there is no connection to a work accident. Apparently, the employee doesn’t have to prove anything. The employer has to prove, on an expedited basis, its defenses to the claim.
The Third Circuit also looked at the same issue. In Scott v. Packaging Corporation of America, 18-338 (3 Cir. 7/5/18), the Court explained that a claimant is entitled to a choice of physician because he “cannot establish entitlement to workers’ compensation benefits without, at a minimum, an opinion from a treating physician.” If the Court would allow an employer to deny a choice of physician, then any workers’ compensation claim could be defeated from the outset “by simply refusing to authorize an initial visit with claimant’s choice of treating physician.” Apparently, employers have to help claimants prove their case.
Not only that, the employer has no right to conduct discovery before the claimant is entitled his choice.
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Please remember that any of these cases could be subject to further review and reversal by the Supreme Court and/or further jurisprudential or legislative action. The law is continually changing. Therefore, always look to update the cases and the law before relying on any particular holding and seek competent legal advice.
Wade A. Langlois, III
This Newsletter is meant to be helpful, insightful and relevant. However, the information in this Newsletter should not be construed to be legal advice and does not create an attorney-client relationship with any reader. Under the rules governing attorney conduct, this newsletter may be considered advertisement. Readers should always seek competent legal advice on any particular matter.