JIMMIE C. PETERS, Judge.
The defendant, the State of Louisiana, through the Department of Health and Hospitals, Office for Citizens with Developmental Disabilities, and Pinecrest Supports and Services Center (referred to collectively as "Pinecrest"), appeals from a judgment denying its fraud defense based on the provisions of La.R.S. 23:1208 and awarding the plaintiff, Margaret Gaines, a judgment for indemnity and medical benefits, penalties, and attorney fees. For the following reasons, we affirm the judgment in all respects.
Pinecrest, located in Pineville, Louisiana, is a state institution providing treatment for persons with intellectual and developmental disabilities, including assisted living facilities.
On January 21, 2014, Ms. Gaines filed a disputed claim for compensation, penalties, and attorney fees based on Pinecrest's failure to pay her indemnity benefits. In its answer to the claim, Pinecrest disputed her right to compensation on the merits and further asserted its right to an offset pursuant to La.R.S. 23:1225, La.R.S. 23:1212, La.R.S. 23:1223, or La.R.S. 23:1206 as an alternative defense in the event the workers' compensation judge (WCJ) should rule in her favor. Additionally, Pinecrest asserted a reservation of its right to amend its answer in order to plead the La.R.S. 23:1208 fraud defense; and on June 25, 2014, Pinecrest amended its answer to allege that Ms. Gaines had committed fraud in making her claim in that she had asked a co-worker to lie about the particulars of a second accident alleged to have occurred on October 28, 2013.
This matter proceeded to a trial on the merits on May 27, 2015; and upon completion of the evidentiary phase, the WCJ took the issues under advisement. Thereafter, on August 18, 2015, the WCJ issued oral reasons for judgment denying Pinecrest's fraud defense and finding that Ms. Gaines proved that she suffered a work-related accident to her left shoulder on October 13, 2013. The WCJ then awarded Ms. Gaines weekly temporary total disability benefits (TTD) in the amount of $290.93 from October 29, 2013, until modified by the workers' compensation court, and further medical treatment. Based on a finding that Pinecrest was arbitrary and capricious in failing to pay indemnity benefits and in terminating medical benefits, the WCJ awarded Ms. Gaines a total of $6,000.00 in penalties and $8,000.00 in attorney fees. On September 23, 2015, the WCJ executed a written judgment corresponding to its oral reasons for judgment. Thereafter, Pinecrest perfected this appeal wherein it asserted two assignments of error:
The standard of review applicable and the burden of proof required by a claimant alleging a work-related accident was recently discussed in Calumet GP, LLC v. Garrett, 50-341, pp. 3-5 (La.App. 2 Cir. 1/20/16), 186 So.3d 712, 715-16, writ denied, 16-301 (La. 4/8/16), ___ So.3d ___, wherein the second circuit stated:
With regard to an employee's claim of fraud as it relates to the claimed work-related accident, La.R.S. 23:1208(A) provides that "[i]t shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation." Any person violating this statute forfeits his or her right to receive workers' compensation benefits and can also face the imposition of criminal penalties, civil penalties, and the restitution of all paid benefits. La.R.S. 23:1208(C), (D), and (E).
To prevail on a fraud defense, the party alleging fraud must prove: (1) that a false statement or representation, (2) was willfully made, and (3) was made for the purpose of obtaining or defeating any benefit or payment. Resweber v. Haroil Constr. Co., 94-2708, 94-3138 (La. 9/5/95), 660 So.2d 7. There is no requirement that the employer prove that it suffered prejudice as a result of the false statement or misrepresentation. Freeman v. J.P. Morgan Chase, 42,716 (La.App. 2 Cir. 12/5/07), 974 So.2d 25. As stated in Resweber, 660 So.2d at 16, "where the false statements are made specifically to obtain benefits, and thus to defraud the workers' compensation system, the benefits will be forfeited for the sole reason that the claimant has willfully and deliberately attempted to defraud the workers' compensation system, and no further requirements are to be imposed."
Moreover, as the forfeiture imposed by La.R.S. 23:1208 is severe in nature, the provisions of the statute are to be strictly construed. Freeman, 974 So.2d 25.
Newman v. Richard Price Constr., 02-995, p. 5 (La.App. 1 Cir. 8/8/03), 859 So.2d 136, 141.
The finding of fraud by a workers' compensation judge is a factual finding, which will not be reversed absent a finding of manifest error. Rogel v. Dollar Gen. Corp., 13-792 (La.App. 3 Cir. 12/11/13), 132 So.3d 978, writ denied, 14-58 (La. 3/14/14), 135 So.3d 604.
In its first assignment of error, Pinecrest does not question the WCJ's findings with regard to the accident of October 13, 2013, or the disability arising therefrom. Instead, Pinecrest argues that the WCJ erred by failing to deny Ms. Gaines benefits because she violated the provisions of La.R.S. 23:1208 on October 28, 2013, when she claimed she had suffered a second work-related injury and asked her co-worker, Marquese Molette, to bear false witness to the particulars of the accident and her injury. Analysis of this assignment of error is fact intensive and must be resolved pursuant to the doctrine of manifest error.
The evidentiary record establishes that on October 13, 2013, Pinecrest had been involved in an institution-wide changing of its shift format from an eight-hour shift to a twelve-hour shift. This change resulted in numerous employees being promoted; all of the employees receiving new assignments; and confusion concerning individual schedules. This confusion left Ms. Gaines working alone at Home 601A on the October 12-13, 2013 evening shift, and during that shift, she injured her left shoulder while attempting to service her clients. She completed her shift and then sought medical treatment at Rapides Regional Hospital (Rapides Regional) in Alexandria, Louisiana the next morning. The personnel at Rapides Regional prescribed pain medication and restricted her from working for the next two weeks. She returned to Pinecrest that evening at the time of what otherwise would have been the start of her new twelve-hour-shift time for the limited purpose of reporting her accident, and she made her report to the manager of Home 601A.
However, before Ms. Gaines could leave, Carol Oliver, the supervisor of Home 601A and six other Pinecrest homes,
When Ms. Gaines did return to work on October 28, 2013, she was still suffering from shoulder pain and asked Supervisor Keith Vanderly if she could move to a different work location because of that pain. Mr. Vanderly ordered her to her normal duty station, but when she arrived there, the new manager of Home 601A, Latasha Anderson,
When Ms. Gaines arrived at Home 601(A), Ms. Anderson assigned four clients to her for the duration of the shift. A few moments later, as she and a co-worker, Marquese Molette, were changing the diaper of the first of the four clients, she claims that she sustained an injury to her lower back and left arm.
Neither of the litigants introduced the October 14, 2013 medical records from Rapides Regional, and the only direct evidence of that treatment comes from the testimony of Ms. Gaines. However, Ms. Gaines returned to Rapides Regional on October 22, 2013, complaining of left shoulder pain, and the introduced medical records of that date reference a left-shoulder rotator cuff tear for which treatment of steroids and pain medication had been rendered the week before.
Ms. Gaines returned to the Rapides Regional emergency room on the evening of October 31, 2013, complaining of a sharp stabbing pain beginning in the lower back and moving to her neck. She returned to the emergency room on November 14, 2013, complaining that the pain had expanded to her lower extremities, secondary to her lower back pain.
Thereafter, Ms. Gaines came under the care of Dr. Gerald Leglue, an Alexandria, Louisiana physical medicine physician. He first saw Ms. Gaines on December 18, 2013, and in late February of 2014, he referred her to Dr. Mark Dodson, an Alexandria, Louisiana orthopedic surgeon who had previously treated her. When he saw Ms. Gaines on February 24, 2014, Dr. Dodson diagnosed Ms. Gaines with rotator cuff tendonitis and referred her for a surgical evaluation by his partner Dr. Michael E. Brunet, an orthopedic surgeon.
Dr. Brunet saw Ms. Gaines on March 20, 2014, and she provided him with a history of having experienced an acute onset of pain after pulling on a client at work. She claimed that the incident had resulted in her symptoms of persistent left shoulder pain since October of 2013, and Dr. Burnet diagnosed Ms. Gaines as suffering from adhesive capsulitis, secondary to a rotator cuff strain. Based on his diagnosis, Dr. Brunet recommended that Ms. Gaines undergo a left-shoulder arthroscopic release of the adhesions, followed by immediate physical therapy.
Pinecrest's entire fraud-defense argument against paying Ms. Gaines any benefits for the October 13, 2013 accident rests on a conversation between Ms. Gaines and Ms. Molette on the evening of October 28, 2013. Pinecrest supplements that argument with evidence of Ms. Gaines' reaction to the October 13, 2013 reorganization and the reprimands she received on October 28, 2013, and how those two events purportedly contributed to an attempt by Ms. Gaines to obtain benefits by fraudulent means.
Ms. Gaines does not deny that she and Ms. Molette had a discussion on the evening of October 28, 2013, concerning her alleged accident of that time. At trial, Ms. Gaines explained that interaction to be as follows:
After her conversation with Ms. Molette, Ms. Gaines immediately notified Ms. Oliver of her accident and injury and informed her that Ms. Molette had been a witness to the accident.
What Ms. Oliver did not tell Ms. Gaines at the time was that while they were in the process of completing the accident report, she received a text from Ms. Molette informing her that Ms. Gaines had requested that she support the story that Ms. Gaines had injured herself. After Ms. Gaines left the premises, Ms. Oliver then went to Home 601A and caused Ms. Molette to prepare a written statement, which reads as follows:
At trial, Ms. Oliver, Ms. Molette, Ms. Anderson, and Kieva Lee
In denying Pinecrest's fraud defense and in finding in favor of Ms. Gaines, the WCJ, after reviewing the testimony and the evidence presented during the trial and the burden of proof, stated:
As we noted in the beginning of the analysis of this assignment of error, we resolve the fraud defense issue pursuant to a manifest error review. In the reasons for judgment, the WCJ clearly found Ms. Gaines to be a credible witness, while discounting the contrary testimony of Pinecrest's witnesses completely. In support of the credibility determinations, the WCJ noted that the medical evidence supported Ms. Gaines' claim of a compensable injury and that Pinecrest offered no evidence to suggest any other cause for the clearly-present physical injury. In fact, as noted by the WCJ, this matter is underscored more by what was not introduced into the record than by what was introduced into the record. The October 14, 2013 Rapides Regional medical records were not introduced and, therefore, proof of the first accident and resulting injury was based solely on Ms. Gaines' testimony and the reference in the October 22, 2013 records. Also absent from the record are Ms. Gaines employment records, which based on her testimony, would have substantiated her October 13, 2013 left-shoulder injury. Thus, the WCJ's credibility determinations became all the more important.
In reviewing the testimony presented at trial, we note that counsel for Ms. Gaines failed to ask specific questions during her testimony. Instead, Ms. Gaines was allowed to describe her work-related accident in a running monologue, which at times, was difficult to understand or follow chronologically. Moreover, Pinecrest's counsel declined to question Ms. Gaines on cross examination. Also missing from the record, as pointed out by the WCJ, was testimony from the claims adjustor, although the medical records indicate that the state paid all of Ms. Gaines' medical treatment up through Dr. Brunet's recommendation for surgery.
In reviewing the evidence that was contained in the record, we find that the WCJ was presented with conflicting testimony regarding whether Ms. Gaines committed fraud or actually suffered a work-related injury. Thus, based on the medical evidence and the WCJ's finding in regards to Ms. Gaines' credibility, which we have been instructed can virtually never be manifestly erroneous or clearly wrong, we find that it was not manifestly erroneous for the WCJ to find that Pinecrest failed to carry its burden on the issue of fraud. Accordingly, the judgment of the WCJ denying the state's La.R.S. 23:1208 fraud defense is affirmed.
In its second assignment of error, Pinecrest does not argue that if Ms. Gaines had not committed fraud she still would not be entitled to a judgment for indemnity and medical benefits, penalties, and attorney fees. Instead, Pinecrest's sole argument is that Ms. Gaines's violation of La.R.S. 23:1208 precludes her from recovering any benefits, penalties, or attorney fees. Based on the absence of any argument other than fraud, we find that this assignment of error has been rendered moot by our affirmation of the WCJ's denial of Pinecrest's fraud defense. Accordingly, this assignment of error is dismissed as being moot.
Based on the foregoing, we affirm the judgment of the workers' compensation judge in all respects. Pursuant to La.R.S. 13:5112(A), we assess the costs of this appeal in the amount of $1,279.50 to the State of Louisiana, through the Department of Health and Hospitals, Office for Citizens with Developmental Disabilities, and Pinecrest Supports and Services Center.
