Gibson v. Lake Charles Ice Pirates

• Decision Date: 06 June 2001
• Docket Number: No. 00 1608-WCA.,00 1608-WCA.
• Citation: 788 So.2d 720
• Parties: Wade R. GIBSON v. LAKE CHARLES ICE PIRATES.
• Court: Court of Appeal of Louisiana — District of US

788 So.2d 720

Wade R. GIBSON v.LAKE CHARLES ICE PIRATES.

No. 00 1608-WCA.

Court of Appeal of Louisiana, Third Circuit.

June 6, 2001.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert L. Hackett, Attorney at Law, New Orleans, LA, Counsel for Plaintiff/AppelleeWade R. Gibson.

Edward F. Stauss, III, Keogh, Cox & Wilson, Baton Rouge, LA, Counsel for Defendants/Appellants Lake Charles Ice Pirates, Virginia Surety Company.

Court composed of HENRY L. YELVERTON, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.

PETERS, Judge.

Wade Gibson, a professional hockey player, was involved in an accident in the course and scope of his employment with the Lake Charles Ice Pirates (Ice Pirates) on January 20, 1998, when he attempted to block a shot in an ice hockey game and was struck with a hockey puck in the area of his left eye.He sustained orbital fractures, facial fractures, cuts, scarring, loss of central vision, and a significant reduction in depth perception.Gibson underwent two surgical procedures in connection with his injuries, one of which involved the installation of titanium plates and screws.The Ice Pirates continued paying Gibson's wages until the end of the hockey season, and, thereafter, the Ice Pirates' compensation carrier, Virginia Surety Company, paid temporary total disability benefits of $333.35 from April 19, 1998, through October 17, 1998.

Gibson filed a claim for compensation, and the matter went to trial on various issues, including Gibson's entitlement to additional indemnity benefits and the defendants' entitlement to a credit/refund.The workers' compensation judge awarded Gibson 100 weeks of permanent partial disability benefits for scarring and disfigurement, 100 weeks of permanent partial disability benefits for loss of vision in his left eye, and temporary total disability benefits at the maximum rate of $350.00 per week "from the date of injury until released to return to work."The workers' compensation judge also awarded the defendants a credit in the amount of $1000.00, representing the amount of profits Gibson's lawn care business netted.The defendants have appealed, contending that the workers' compensation judge erred in (1) failing to find that, pursuant to La.R.S. 23:1081(1)(c), no compensation was due because Gibson failed to use a face shield; (2) failing to find that, pursuant to La.R.S. 23:1208, Gibson forfeited his benefits for giving false statements or representations for the purpose of obtaining workers' compensation benefits; (3) failing to require that, pursuant to La.R.S. 23:1208(D), Gibson make restitution for violating La.R.S. 23:1208 and pay civil penalties; (4) failing to grant them a credit/refund for overpayment of benefits; (5) awarding permanent partial disability benefits under both La.R.S. 23:1221(4)(i) for loss of vision in the left eye and La.R.S 23:1221(4)(p) for scarring and disfigurement; (6) awarding maximum permanent partial disability benefits under La.R.S. 23:1221(4) without deducting the number of weeks of compensation previously paid under La.R.S. 23:1221(1) as temporary total disability benefits; (7) awarding maximum permanent partial disability benefits for a minor scar; (8) awarding permanent partial disability benefits for loss of use of the left eye where appropriate evidence was not submitted to support the award; (9) awarding temporary total disability benefits where Gibson returned to work as a professional hockey player immediately after benefits were terminated; and (10) holding that the maximum compensation rate is applicable in this case.

La.R.S. 23:1081(1)(c) Defense

La.R.S. 23:1081(1)(c) provides that compensation shall not be allowed for an injury caused "by the injured employee's deliberate failure to use an adequate guard or protection against accident provided for him."The defendants contend that the workers' compensation judge was clearly wrong in failing to find that the La.R.S. 23:1081(1)(c) defense applied in this case where Gibson made a deliberate decision not to use a face shield while playing hockey.

A face shield covers the area from the bridge of the nose to the top of the forehead.The parties stipulated that a face shield was made available to Gibson prior to and at the time of his injury and that he did not use the face shield.However, it appears that the parties used the phrase "was made available" to mean "could be obtained" rather than to mean "was on hand."Gibson testified that he was never offered a face shield and that if a player asked for a shield it would have to be ordered.He stated: "When you walk in the dressing room you have your equipment provided.There is a helmet and there is no face shield under it unless you ask for it."Even Robert Loucks, the coach of the Ice Pirates at the time of Gibson's injury, testified that "[o]nce you become a professional, it's optional.It's your choice, and very few players wear them" because they tend to fog up and impair vision.Gibson testified that the face shield is an impediment to his play and that he does not have clear vision through the face shield: "During play it will fog up.If you get chunked in the boards, perspiration or snow or water will splash on the visor, and you know, then you're trying to wipe it off while you're playing.So, it does get in the way.It's bothersome."

The employer has the burden of proving the defense.La.R.S. 23:1081(2).Initially, in light of the liberal construction afforded the employee in workers' compensation law, we do not find that the Ice Pirates proved that the face shield was actually "provided" to Gibson as required by the statute.While the face shield was obtainable through the Ice Pirates by an employee, it was not on hand for immediate use.

Moreover, we find no merit to the defendants' contention that the defense is applicable because the injury would not have occurred if Gibson had been wearing the face shield, which he currently wears while playing.We have declined to hold that a claimant's recovery is barred by his mere failure to use an adequate guard against injury since such a holding would abrogate the rule that ordinary or contributory negligence constitutes no bar to recovery in workers' compensation.SeeCreel v. ConcordiaElec. Coop., Inc., 93-1329 (La.App. 3 Cir. 5/4/94);640 So.2d 507, writ denied, 94-1423 (La.9/16/94);642 So.2d 199.Rather, "[t]he defenses of LSA-R.S. 23:1081, strictly construed, relieve employers of liability only for injuries that are intended by individuals or that result from an individual's intoxication, as the latter constitutes no less than a voluntary self-removal from the world of reason."Id. at 508(citations omitted).In fact, "`[t]he employer must prove that the employee had a willful and wanton intention to injure himself.'"King v. Grand Cove Nursing Home, 93-779, p. 6(La.App. 3 Cir.3/9/94);640 So.2d 348, 352(quotingShelvin v. Waste Management, Inc.,580 So.2d 1022, 1027(La.App. 3 Cir.1991)), writ denied, 94-0865 (La.5/13/94);641 So.2d 204.The defenses simply do not prohibit an employee's recovery on grounds of contributory negligence, and, in fact, the defenses do not even defeat a claim for injuries resulting from stupidity or foolishness or even recklessness.Creel,640 So.2d 507.In the instant case, the Ice Pirates did not require the use of the face shield, and the evidence does not support that Gibson's failure to use the face shield was due to a willful and wanton intention to injure himself.Rather, the evidence shows that Gibson's failure to use the face shield was due to the fact that it was an impediment to his job performance.Thus, we find no error in the workers' compensation judge's rejection of the La.R.S. 23:1081(1)(c) defense.

La.R.S. 23:1208 Forfeiture

La.R.S. 23:1208(A) provides in part: "It shall be unlawful for any person, for the purpose of obtaining ... any benefit or payment under the provisions of this Chapter . . . to willfully make a false statement or representation."Subsection E provides: "Any employee violating this Section shall, upon determination by [sic] workers' compensation judge, forfeit any right to compensation benefits under this Chapter.""The only requirements for forfeiture of benefits under Section 1208 are 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."Resweber v. Haroil Constr. Co.,94-C-2708, 94-C-3138, p. 7(La.9/5/95);660 So.2d 7, 12.The workers' compensation judge found that "Gibson made no willful false statement or statements for the purpose of obtaining or defeating any benefits or payment."The defendants contend that Gibson violated La.R.S. 23:1208 in several respects and that, therefore, the workers' compensation judge erred in not ordering a forfeiture of benefits.

Initially, the defendants contend that Gibson lied about the purpose of a Jobst garment prescribed by Dr. Ralph Colpitts, a Lake Charles, Louisiana plastic and reconstructive surgeon.They state in their appellate brief:

Because the plaintiff admitted that he did not follow up with the Jobst garment prescription as requested by Dr. Colpitts, he intentionally misrepresented the purpose of the device due to the fact that it was prescribed as treatment for the very problem which forms the basis of his disfigurement claim in this matter.

The OWC Judge awarded the maximum available benefits for scarring yet the plaintiff did not follow his doctor's orders concerning treatment for that very problem.The claimant attempted to mislead the court as to why he did not get fitted for the Jobst garment because he knew if the court were aware of its true purpose, his claim for scarring in this matter would be adversely affected if not dismissed.Therefore, the purposeful falsification warranted dismissal under Section 1208 of the Act.

Dr. Colpitts testified:

A....And his scars were healing...