The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
10-371
CHERYL F. BENOIT
VERSUS
ACE TRANSPORTATION
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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 4
PARISH OF LAFAYETTE, NO. 07-05989
SAM L. LOWERY, WORKERS’ COMPENSATION JUDGE
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ULYSSES GENE THIBODEAUX
CHIEF JUDGE
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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
Elizabeth A. Pickett, Judges.
AFFIRMED.
Michael Lee Hebert
715 St. Ferdinand Street
Baton Rouge, LA 70802
Telephone: (225) 612-9444
COUNSEL FOR:
Plaintiff/Appellee - Cheryl F. Benoit
Michael Edward Parker
Allen & Gooch
P. O. Box 81129
Lafayette, LA 70598-1129
Telephone: (337) 291-1000
COUNSEL FOR:
Defendants/Appellants - Liberty Mutual Insurance Company and
Ace Transportation
THIBODEAUX, Chief Judge.
In this workers’ compensation case, the defendants appeal the judgment
of the Office of Workers’ Compensation (“OWC”). The plaintiff, Cheryl Benoit,
worked as a driver for defendant, ACE Transportation (“ACE”). In 2006, while
driving for ACE, Ms. Benoit was involved in a vehicular accident in Texas. She
returned to Louisiana and sought treatment for injuries to her back. ACE and its
insurer, Liberty Mutual Insurance Company (“Liberty”), denied her claims for
treatment. Specifically, ACE and Liberty alleged that Ms. Benoit gave false
statements about her medical history on her employment application. Because Ms.
Benoit failed to report a prior workplace injury and had received social security
disability benefits, ACE and Liberty claimed they were deprived of recovering from
the Second Injury Fund.
The OWC disagreed and found that Ms. Benoit suffered a compensable
accident and was entitled to benefits. The OWC also found that Ms. Benoit did not
commit fraud. ACE and Liberty appeal. For the foregoing reasons, we affirm the
judgment of the OWC.
I.
ISSUES
We must decide whether:
(1) the OWC manifestly erred in refusing to impose
sanctions on Ms. Benoit for submitting an alleged
false claim;
(2) the OWC manifestly erred by finding that Ms.
Benoit did not forfeit her benefits under La.R.S.
23:1208.1;
(3) the OWC manifestly erred by finding that Ms.
Benoit was entitled to indemnity benefits from the
date of her accident and all medical costs associated
with Dr. Robles’ treatment; and,
(4) the OWC manifestly erred by imposing penalties
and fees on ACE and Liberty.
II.
FACTS AND PROCEDURAL HISTORY
ACE hired Ms. Benoit as a truck driver in 2003. At that time, she
completed an employment questionnaire and denied any prior back injuries. Ms.
Benoit failed to disclose that she injured her back thirteen years previously, while
working at Wal-Mart. After the Wal-Mart accident, Ms. Benoit was diagnosed with
a herniated disc in her back. She received treatment, and in 1992, her injuries
appeared to have subsided. From 1995 to 2005, Ms. Benoit collected social security
disability benefits for a multitude of problems including diabetes, nervousness, heel
spurs, corporal tunnel syndrome, degenerative disc disease, and back problems.
Despite these infirmities, Ms. Benoit completed and passed several physical exams
and received her commercial driver’s license.
On November 10, 2006, while driving for ACE, Ms. Benoit was
involved in an accident which caused injuries to her back. She initially sought
treatment from Dr. Hector Robles and has continued receiving treatment from Dr.
Robles for her injuries from the ACE accident. Ms. Benoit sought workers’
compensation benefits from ACE. ACE and Liberty denied her claims, and Ms.
Benoit initiated the underlying lawsuit. The OWC awarded Ms. Benoit indemnity
and medical benefits and assessed penalties and attorney fees against ACE and
Liberty. They appeal. Ms. Benoit answers the appeal and requests additional
attorney fees for work done on appeal.
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III.
LAW AND DISCUSSION
Standard of Review
The supreme court articulated the standard of review in workers’
compensation cases as follows:
In worker’s compensation cases, the appropriate
standard of review to be applied by the appellate court to
the OWC’s findings of fact is the “manifest error-clearly
wrong” standard. Brown v. Coastal Construction &
Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704
So.2d 8, 10, (citing Alexander v. Pellerin Marble &
Granite, 93-1698, pp. 5-6 (La. 1/14/94), 630 So.2d 706,
710). Accordingly, the findings of the OWC will not be set
aside by a reviewing court unless they are found to be
clearly wrong in light of the record viewed in its entirety.
Alexander, 630 So.2d at 710. Where there is conflict in the
testimony, reasonable evaluations of credibility and
reasonable inferences of fact should not be disturbed upon
review, even though the appellate court may feel that its
own evaluations and inferences are as reasonable.
Robinson v. North American Salt Co., 02-1869 (La.App.
1 Cir. 2003), 865 So.2d 98, 105[, writ denied, 03-2581 (La.
11/26/03), 860 So.2d 1139].
Dean v. Southmark Const., 03-1051, p. 7 (La. 7/6/04), 879 So.2d 112, 117.
Section 23:1208 Sanctions
ACE and Liberty assert in their first assignment of error that the OWC
erred by not assessing sanctions against Ms. Benoit under La.R.S. 23:1208. Section
1208 provides sanctions against claimants for reporting false workers’ compensation
claims. Prior to this appeal, neither ACE nor Liberty ever raised the issue of Section
1208 fraud. Under La.R.S. 23:1208, fraud is an affirmative defense that must be
specifically pled. Odom v. Kinder Nursing Home, 06-1442 (La.App. 3 Cir. 4/25/07),
956 So.2d 128. ACE and Liberty failed to plead fraud as an affirmative defense in
their Answer. Thus, they are not permitted to do so on appeal.
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Moreover, even if ACE and Liberty had properly pled fraud as an
affirmative defense in their Answer, they failed to follow through with the argument
on appeal. The preeminent case in Louisiana jurisprudence on this issue is Resweber
v. Haroil Constr. Co., 94-2708 (La. 9/5/95), 660 So.2d 7. ACE and Liberty, however,
mention neither Resweber, nor any other case on the subject, in their brief. In fact,
other than in their assignments of error and in a short paragraph on page eight of their
brief, ACE and Liberty never mention Section 1208.
Section 1208.1 Forfeiture
ACE and Liberty allege Ms. Benoit has forfeited her right to benefits,
pursuant to La.R.S. 23:1208.1. Louisiana Revised Statutes 23:1208.1 provides for
the forfeiture of an employee’s benefits when the employee fails to truthfully answer
a medical questionnaire regarding previous injuries, disabilities, or other medical
conditions if an answer directly relates to the medical condition for which he seeks
benefits or the untruthfulness prejudices the employer’s ability to seek reimbursement
of benefits it paid the employee from a statutorily-created fund, known as the Second
Injury Fund. See La.R.S. 23:1371. Employers are allowed to ask employees about
prior injuries so that they may:
[e]ncourage the employment of physically handicapped
employees who have a permanent, partial disability by
protecting employers . . . from excess liability for workers’
compensation for disability when a subsequent injury to
such an employee merges with his preexisting permanent
physical disability to cause a greater disability than would
have resulted form the subsequent injury alone.
La.R.S. 23:1371(A).
Questionnaires may be used to obtain information about an employee’s
permanent partial disability (“PPD”). A PPD is “any permanent condition, whether
congenital or due to injury or disease, of such seriousness as to constitute a hindrance
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or obstacle to obtaining employment, to retention by an employer, or to obtaining
reemployment if the employee becomes unemployed.” La.R.S. 23:1371.1(5). Thirty-
four conditions qualify as permanently disabling. La.R.S. 23:1378(F).
Because forfeiture is a harsh remedy, La.R.S. 23:1208.1 must be strictly
construed. Nabors Drilling USA v. Davis, 03-136 (La. 10/21/03), 857 So.2d 407. A
plaintiff forfeits her claims if there is: “(1) an untruthful statement; (2) prejudice to
the employer; and (3) compliance with the notice requirements of the statute.” Id. at
414. The employer maintains the burden of proving each of these elements to avoid
liability under the statute. Id.
An employer can establish prejudice in one of two ways. First, the
employer can show that the employee’s untruthful answer directly relates to the
medical condition at issue. Wise v. J.E. Merit Constructors, Inc., 97-684 (La.
1/21/98), 707 So.2d 1214. An employer can also establish prejudice by showing that
the employee’s answer on the questionnaire affects the employer’s ability to recover
from the second injury fund. Id.
(A) Direct Relation Test
“[D]irect relation is established when the subsequent injury was
inevitable or very likely to occur because of the presence of the preexisting
condition.” Wise, 707 So.2d at 1220. Here, ACE and Liberty argue that because the
1990 accident and the 2006 accident involved the same body parts, Ms. Benoit
forfeited her rights under La.R.S. 23:1208.1. Our court and the supreme court have
rejected the anatomical identity test. Thus, we must reject ACE and Liberty’s
argument that a direct relationship existed on that basis.
Next, we must determine whether the subsequent injury was inevitable
or very likely to occur because of the presence of the preexisting condition. Ms.
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Benoit’s preexisting condition was an injury to her cervical spine. She was treated
for that injury, and two years following the initial accident, Dr. Ricardo Leoni noted
that Ms. Benoit had “no nerve root compression, no weakness or reflex asymmetry,
no atrophy - chronic strain, no surgical lesions.” She had no injuries related to any
herniation or ruptured discs. Moreover, she had no injuries to her lumbar spine. Dr.
Leoni’s notes leave the impression that any spinal problems Ms. Benoit suffered as
a result of the 1990 accident were resolved by 1992. Notably, after 1992, Ms. Benoit
did not seek treatment for her neck or back until the time of the ACE accident in
2006. Indeed, before the 2006 accident, Ms. Benoit worked as a truck driver and held
a commercial driver’s license. She routinely passed the physical exam required for
the license.
Ms. Benoit’s subsequent injury occurred in November 2006. Ms. Benoit
was driving an ACE truck when the vehicles in front of her slowed, and she applied
the brakes. The truck’s load shifted and pushed the truck forward, causing a
collision. Following the accident, Ms. Benoit’s physicians ordered MRI tests of the
cervical and lumbar spine. Ms. Benoit was diagnosed with compressive disc disease,
bulging discs, osteoarthritis, and disc herniation.
There is nothing in the record to show that the 2006 injuries were
inevitable or very likely to occur as a consequence of the 1990 accident. To the
contrary, Dr. Leoni’s notes as well as Ms. Benoit’s physical employment as a truck
driver and her ability to pass numerous physical exams lead to the conclusion that Ms.
Benoit’s previous conditions had resolved by the time of the accident in 2006. ACE
and Liberty provided no expert testimony or documentation to rebut this conclusion.
Thus, ACE and Liberty failed to prove a direct relation between ACE’s questionnaire
and the 2006 injury that forms the basis of this claim.
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(B) The Second Injury Fund
We must next determine whether Ms. Benoit’s answer on the
questionnaire was prejudicial because it affected ACE and/or Liberty’s ability to be
reimbursed from the Second Injury Fund. ACE and Liberty argue that their rights
were prejudiced because Ms. Benoit failed to disclose that she had neck and back
injuries and that non-disclosure prevented ACE and/or Liberty from reimbursement
from the Second Injury Fund.
“Reimbursement occurs when the employee has a PPD, when the
employer has knowledge of the PPD, and when the PPD merges with a subsequent
injury to result in a greater disability.” Wise, 707 So.2d at 1221 (citing La.R.S.
23:1378(A); La.R.S. 23:1371(A)). Here, ACE and Liberty cannot convincingly argue
that Ms. Benoit suffered from a PPD. Her condition is not enumerated in the list of
PPD conditions found in La.R.S. 23:1378(F), and the medical evidence in the record
does not even hint that Ms. Benoit had any of these conditions. Moreover, Ms.
Benoit passed a physical examination for truck driving seven years before the
accident in Houston. Her health clearly did not impede her from obtaining
employment or performing her duties at ACE.
Similarly, ACE and Liberty cannot prove merger of her previous injury
with the injury at issue. In Nabors Drilling, 857 So.2d at 420, the supreme court
enunciated a specific definition to the concept of “merger”:
In this connection, we note that under LSA-R.S.
23:1371(C)(2), a ‘merger’ occurs not when the disability
resulting with a subsequent injury in conjunction with a
pre-existing permanent partial is ‘greater’ than that which
would have resulted had the pre-existing permanent partial
disability not been present, but when the disability is
‘materially and substantially greater.’ Two adverbs
‘materially’ and ‘substantially’ modify the adjective
‘greater.’ Consequently, although two disabling injuries
added together will in most instances produce a ‘greater
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disability,’ it is not enough under the statute simply to ‘add
up’ the employee’s injuries.
The record is devoid of any evidence that Ms. Benoit’s first injury
merged with her second injury, and ACE and Liberty failed to present any evidence
of their own. Specifically, ACE and Liberty submitted no evidence or expert
testimony on the issue of merger. Instead, they rely solely on Ms. Benoit’s previous
award of social security benefits. ACE and Liberty neglect evidence, however, that
explains the complete reason for Ms. Benoit’s social security benefits. Namely, Ms.
Benoit requested social security benefits due to a multitude of health problems
including diabetes, nervousness, heel spurs, corporal tunnel syndrome, degenerative
disc, and a “bad back.” We cannot reasonably conclude that Ms. Benoit’s social
security claim was based solely on injuries to her spine, as ACE and Liberty would
like us to believe. ACE and Liberty also neglect evidence demonstrating that Ms.
Benoit recovered from her 1990 accident. Indeed, before the 2006 accident, Ms.
Benoit had not sought treatment for her neck or back since 1992. She passed physical
exams to acquire her commercial driver’s license, and she ably performed her job for
ACE. Thus, ACE and Liberty’s argument that a merger of Ms. Benoit’s injuries
occurred falls short.
In sum, ACE and Liberty have not met their burden of showing forfeiture
under 23:1208.1.
Indemnity
ACE and Liberty also argue that they do not owe indemnity benefits to
Ms. Benoit because the judgment of the OWC does not indicate a specific starting
date for payment of indemnity benefits and does not specify the medical bills to be
paid. ACE and Liberty’s arguments are totally meritless. Because Ms. Benoit has not
worked since the date of the accident, she is entitled to indemnity benefits retroactive
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to the date of the November 2006 accident. The benefits are calculated based upon
her average weekly wage.
Moreover, all of Dr. Robles’ treatments related to Ms. Benoit’s present
condition. Thus, she is entitled to reimbursement of all medical bills attributed to his
treatment of her injuries. See Scott v. City of Pineville, 08-1410, (La.App. 3 Cir.
4/1/09), 8 So.3d 813, writ denied, 09-981 (La. 6/19/05), 10 So.3d 742.
Fees and Penalties
ACE and Liberty next claim that the OWC erred in awarding penalties
and attorney fees. The award of penalties and attorney fees is a question of fact,
subject to the manifest error standard of review. Scott, 8 So.3d 813. “The purpose
of imposition of penalties and attorney fees in workers’ compensation cases is to
discourage indifference and undesirable conduct by employers and insurers.” Id. at
818. This court, in Johnson v. Transamerica Waste Co., 99-190, pp. 9-10 (La.App.
3 Cir. 6/2/99), 741 So.2d 764, 770, addressed the issue as follows:
In order to avoid the imposition of penalties, an
employer must reasonably controvert the workers’
compensation claimants right to benefits. The test to
determine if the employer has fulfilled its duty is whether
the employer or his insurer had sufficient factual and
medical information to reasonably counter the factual and
medical information presented by the claimant. (Citations
omitted).
In this case, it is clear that ACE and Liberty made no attempt to gather
any additional information about Ms. Benoit. They failed to conduct a thorough
investigation, and they failed to offer any medical or scientific evidence of their own.
Instead, ACE and Liberty attempted, time and time again, to delay Ms. Benoit’s
claim. Their actions are inexcusable, and we find no error in the OWC’s award of
penalties and attorney fees to Ms. Benoit. Moreover, we award an additional
$3,500.00 in attorney fees to Ms. Benoit for work on this appeal.
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IV.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the OWC and
award an additional $3,500.00 in attorney fees to Ms. Benoit for work on this appeal.
Costs of this appeal are assessed to ACE and Liberty.
AFFIRMED.
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