LOLLEY, J.
Plaintiff, James Borders, appeals a judgment from the Office of Workers' Compensation, District 1W, Bossier Parish, Louisiana (the "OWC"), in favor of Boggs & Poole Contracting Group, Inc. and the Phoenix Insurance Company (the "defendants"). For the following reasons, we affirm the trial court's judgment.
Borders claims that on February 19, 2010, he injured his knee and back while on the job with his employer Boggs & Poole Contracting Group, Inc. Borders was treated at the hospital for pain related to his knee, but not immediately after the accident. An X-ray taken at that hospital visit showed that there was no fracture, and an MRI taken was essentially normal. Borders began receiving workers' compensation benefits as a result of his workplace accident.
In August 2010, Borders was evaluated by Dr. Donald Smith for the defendants' second medical opinion. In his report, Dr. Smith opined that Borders showed signs of "marked emotional magnification of symptoms" and determined that there was no need for surgical or invasive intervention. Dr. Smith believed Borders was medically capable of returning to full and unrestricted work. Borders continued to receive benefits despite Dr. Smith's August 2010 report.
Eventually, Borders filed a disputed claim for compensation on June 22, 2012, seeking to obtain pain management, a
A trial of the matter commenced on August 20, 2013, at which Borders appeared pro se. After the conclusion of the trial, the workers' compensation judge ("WCJ") took the matter under advisement and subsequently entered judgment in favor of the defendants. In its judgment, the WCJ ordered that: Borders' demand for benefits be dismissed based on the finding of fraud in violation of La. R.S. 23:1208; he pay a civil penalty of $1,000.00 to the Kids Chance Scholarship Fund; he pay restitution to the defendants for all benefits paid to him through June 11, 2012; and, he pay all costs of litigation. In extremely thorough reasons for judgment, the WCJ concluded that Borders had forfeited his rights to any workers' compensation benefits through his willful misrepresentations to obtain benefits. This appeal by Borders ensued.
On appeal Borders argues that the WCJ committed manifest error in denying his claims for workers' compensation benefits. In support of his argument, Borders states that it is undisputed that he was injured on the job and the defendants provided no evidence that he was malingering. The defendants do not dispute that an accident occurred; however, they do dispute the nature and extent of the injuries and their causal relationship to the accident. The defendants contend that the OWC properly determined that the evidence proved that Borders not only lacked credibility, but that he clearly made false statements and misrepresentations constituting fraud under La. R.S. 23:1208. We agree.
Louisiana R.S. 23:1208 states in pertinent part:
This statute authorizes forfeiture of benefits upon proof 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. The statute applies to any false statement or misrepresentation made willfully by a claimant for the purpose of obtaining benefits. All of these requirements must be present before a
A WCJ's decision to impose or deny forfeiture under La. R.S. 23:1208 is a factual finding which will not be disturbed on appeal absent manifest error. Brooks v. Madison Parish Serv. Dist. Hosp., 41,957 (La.App.2d Cir.03/07/07), 954 So.2d 207, writ denied, 2007-0720 (La.05/18/07), 957 So.2d 155.
When a factfinder's finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989); Wilson v. General Motors Corp., 45,232 (La.App.2d Cir.05/26/10), 37 So.3d 602. When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed even though the appellate court may feel that its own inferences and evaluations are as reasonable. Rosell v. ESCO, supra; Read v. Pel-State Oil Co., 44,218 (La.App.2d Cir.05/20/09), 13 So.3d 1191. Where the factfinder's conclusions are based on determinations regarding credibility of the witnesses, the manifest error standard demands great deference to the trier of fact because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Rosell v. ESCO, supra; Hansford v. St. Francis Medical Ctr., Inc., 43,984 (La.App.2d Cir.01/14/09), 999 So.2d 1238. When there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Wilson v. General Motors Corp., supra.
Our review of this record shows that the defendants clearly met their burden, and the WCJ's judgment was not in error. Initially, we note that Borders failed to offer any evidence in support of his claims for benefits. Whereas Borders repeatedly insisted that a doctor told him he had a "cracked kneecap" due to his accident, he presented no evidence, other than his dubious testimony, to show that anything was medically wrong with him.
Furthermore, the surveillance video obtained by the defendants showed that Borders' "extracurricular activities" demonstrated that his claims of a disability and inability to work are untrue. The WCJ made the following observations in the reasons for judgment:
Despite his rigorous activity on the surveillance tape, when Borders presented to Dr. Smith, he came to the office using a cane. Dr. Smith continued to believe that Borders was magnifying his symptoms; had reached maximum medical improvement; and, was not a candidate for surgery.
In concluding that Borders willfully misrepresented his condition to the doctors, attorneys and the OWC in order to obtain workers' compensation benefits, the WCJ specifically noted:
Making such credibility determinations is within the province of the factfinder, and considering this record, we cannot say that the WCJ was manifestly erroneous or clearly wrong. The defendants proved that Borders willfully misrepresented his injury for the purpose of obtaining benefits. Borders' statements and actions were not inadvertent, but clearly made willfully, and the WCJ's judgment was not in error.
For the foregoing reasons, the judgment of the trial court in favor of Boggs & Poole Contracting Group, Inc. and the Phoenix Insurance Company is affirmed. All costs of this appeal are assessed against James Borders.