Duhon v. Albertson's, Inc.

• Decision Date: 30 October 2002
• Docket Number: No. 02-0494.,02-0494.
• Parties: Donna W. DUHON v. ALBERTSON'S, INC.
• Court: Court of Appeal of Louisiana — District of US

829 So.2d 1190

Donna W. DUHON v. ALBERTSON'S, INC.

No. 02-0494.

Court of Appeal of Louisiana, Third Circuit.

October 30, 2002.

Thomas Allen Filo, Cox, Cox, Filo Camel, Lake Charles, LA, for Plaintiff/Appellee. Donna W. Duhon.

Shelly D. Dick, Forrester, Jordan & Dick, L.L.C., Baton Rouge, LA, for Defendant/Appellant, Albertson's, Inc.

Court composed of NED E. DOUCET. JR., Chief Judge, MARC T. AMY, and GLENN B. GREMILLION, Judges.

GREMILLION, Judge.

The defendant, Albertson's Inc., appeals the judgment of the workers' compensation judge awarding the plaintiff, Donna Duhon, back due workers' compensation benefits, penalties, and attorney's fees as a result of its arbitrary and capricious actions in terminating her benefits. We affirm.

FACTS

The parties stipulate that Duhon was involved in two work-related accidents while employed in the produce department of Albertson's. The first accident occurred on September 24, 2000, after which Duhon sought treatment for neck pain from Dr. Michael Seep, a family practitioner, and Dr. Lynn Foret, an orthopedic surgeon. After she was released to full duty by Dr. Foret in December 2000, Duhon returned to work on January 16, 2001. She worked for approximately three hours before suffering her second work-related injury to her neck. Duhon returned to Dr. Seep and then sought treatment from Dr. William Foster, a neurosurgeon, for her neck and lower back pain. On January 24, 2001, Dr. Foster restricted her from working, stating that she was one hundred percent disabled. Duhon was also examined by Drs. Ricardo Leoni, a neurosurgeon, and Gregory Gidman, an orthopedic surgeon, at the request of Gates McDonald, the third party administrator for Albertson's.

On March 7, 2001. Albertson's terminated Duhon's weekly compensation benefits pursuant to La.R.S. 23:1208, based on alleged misrepresentations made by her with regard to her work status and her ability to work. As a result of Albertson's actions, Duhon filed a disputed claim for compensation with the Office of Workers' Compensation seeking compensation benefits, penalties, and attorney's fees based on Albertson's arbitrary and capricious handling of her claim. Gates McDonald then requested a neurosurgical independent medical examination (IME) of Duhon. The Office of Workers' Compensation ordered an THE of Duhon to be performed by Dr. Luiz De Araujo, a neurosurgeon. Dr. De Araujo's report was submitted to the Office of Workers' Compensation on May 7, 2001. He felt that Duhon's problem was mainly myofascial syndrome of the cervical and lumhosacral regions, so he suggested myelograms and post-myelograms CAT scans of those areas in order to rule out the possibility of disc herniations at C6-7 and in the lumbar area. These were performed on May 14, 2001. Considering the results of these tests, Dr. De Araujo felt that Duhon had mild foraminal stenosis at C6-7 on the left side. He recommended that she undergo a work hardening program, followed by a functional capacity evaluation in order to determine her limitations before returning her to work. In response to Duhon's claim, Albertson's answered and pled the affirmative defense provided by La.R.S. 23:1208.

Following a hearing on the merits, the workers' compensation judge rendered judgment in favor of Duhon awarding her all back due workers' compensation benefits. She further held that Albertson's had acted arbitrarily and capriciously in terminating her benefits, thus, she awarded Duhon $2,000 in penalties and $6,500 in attorney's fees. Albertson's has suspensively appealed from this judgment.

ISSUES

Albertson's raises four assignments of error on appeal. Essentially, it argues that the workers' compensation judge erred in finding that it failed to prove that Duhon made material misrepresentations for the purposes of obtaining weekly compensation benefits when she failed to disclose that she assisted her husband and son with a paper route. It further argues that the workers' compensation judge erred in awarding Duhon penalties and excessive attorney's fees. Duhon has answered the appeal seeking additional attorney's fees for work done On appeal.

FORFEITURE OF BENEFITS

La.R.S. 23:1208(A) provides, "It 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." Thus, in order for an employer to prove forfeiture pursuant to La.R.S. 23:1208, it must prove that a false representation was willfully made by the employee for the purpose of obtaining compensation benefits. Resweber v. Haroil Constr. Co., 94-2708 (La.9/5/95), 660 So.2d 7. Whether or not an employee has forfeited her right to such benefits is a question of fact, which will not be reversed on appeal in the absence of manifest error. Smith v. Quarles Drilling Co., 99-171 (La.App. 3 Cir. 6/2/99), 741 So.2d 829, writ denied, 99-1949 (La.10/8/99), 751 So.2d 227.

We have reviewed the record in its entirety and find that the workers' compensation judge was presented with conflicting views of the evidence. As stated by the supreme court in Stobart v. State, through DOTD, 92-1328(La.4/12/93), 617 So.2d 880, 882, "reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony."

First, Albertson's contends that Duhon materially misrepresented her condition in order to obtain compensation benefits. Owen Wall, a senior claims examiner for Gates McDonald, testified that he terminated Duhon's benefits on March 7, 2001, solely due to inconsistencies between her recorded statements and her actions. Susan Bordelon, the store director for Albertson's, had passed on information she had learned from another employee to Wall that Duhon was assisting her husband with his paper route while she was disabled from her work-related injuries. Based on this information and other alleged "red flags," he obtained video surveillance of Duhon.¹ This surveillance failed to reveal that she was assisting in the paper route. After Duhon reported her second work-related accident, Wall again ordered video surveillance of her due to the red flags associated with her file.² The total surveillance consisted of twelve to fifteen days between October 2000 and March 2001. Of those days, Wall only had evidence of two days where Duhon was allegedly assisting with the paper route.

On February 4, 2001, the surveillance shows Duhon's son filling a paper machine with newspapers, while she stands next to it, after which she throws away a handful of plastic hinder straps and the scrap paper used to hold the papers together. In a recorded statement of February 16, 2001, Wall repeatedly asked Duhon if she was capable of doing any type of work at all. She stated that she could not. He then asked if she felt capable of assisting anyone in any type of work. She answered, "No." On March 7, 2001, Wall obtained video surveillance of Duhon riding with her husband in his truck as he delivered papers. After learning of this, he terminated her benefits despite the fact that Duhon had not been released to regular duty work by Dr. Foster and none of the other doctors had recommended that she was capable of regular duty. Although Wall never specifically asked Duhon about her husband's paper route, he stated that he did not file a claim to terminate her benefits because he felt that this was a clear case of her lying about her condition. He stated that he did not ask her about the route because if she lied in general about working, then she probably would lie just as quickly about specific jobs she was working. Wall testified that he never determined whether Duhon was earning any wages from the paper route.

The...