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Hickman v. Logging9/29/2004
AFFIRMED.
Issues on appeal to this court arise out of an employment relationship. Dwight Hickman was an employee of Jim Smith Logging when he suffered a back injury . At that time, Jim Smith Logging was insured by American Interstate Insurance. Mr. Hickman filed a 1008 claim form for compensation, but this request was denied by Jim Smith Logging. The Office of Workers' Compensation granted Mr. Hickman's request and denied the employer's affirmative defense based on La.R.S. 23:1208.1.
FACTS
On the morning of July 24, 2001, Dwight Hickman called Jim Smith to discuss a job opportunity. After some discussion, Mr. Smith told Mr. Hickman to report to the job site the following morning. Mr. Smith and Mr. Hickman both testified to the fact that it is customary in the logging business to hire someone verbally when that person's logging reputation is known. Mr. Hickman reported and was put to work as a saw hand. On that day or at some later date, he was given an employment application and medical questionnaire. Mr. Hickman was allowed to take these forms home to complete, rather than complete them on the job site prior to starting work. Mr. Hickman began his job that day.
Mr. Hickman took the forms home, and Debby Draper, a female acquaintance who lived in the home with him, completed the forms while he prepared for work. Mr. Hickman testified that the forms had to be returned before he could collect a pay check. Ms. Draper initially began to complete the forms by asking him the questions, but then completed the forms based on her own knowledge. She marked "no" to the question asking whether a doctor had ever restricted his activities and "no" to whether he had ever been assessed any percentage of permanent disability. Ms. Draper testified that she did not know of the prior back injury and that she did not read the warning on the application. Ms. Draper placed an "X" beside each line Mr. Hickman needed to sign, and he later signed where indicated.
The form is dated July 25, 2001, and Mr. Hickman received an advance on his pay check on July 26, 2001. Mr. Hickman received his first actual payroll check on August 4, 2001. On June 8, 2002, while at work, Mr. Hickman suffered a "glitch" in his back. This was the beginning of his vacation period and during that period he saw a doctor. The doctor informed him that it was not a serious injury ; therefore, Mr. Hickman did not request any type of compensation. After the vacation ended, he returned to work. On July 15, 2002, he suffered a work-related injury as his back gave out. On July 18, 2002, he returned to work and was interviewed by Dewayne Sanders. During the course of this statement, Mr. Hickman informed Mr. Sanders of his previous back injury. Also, in a statement to Mickie Clopton of American Interstate Insurance, Jim Smith Logging's compensation carrier, Mr. Hickman informed her of his prior back injury, which occurred in 1993 while he was employed with Wal-Mart. Mr. Hickman's application for compensation was denied by his employer.
PROCEDURAL HISTORY
Shortly after suffering the work-related back injury , the claimant filed a 1008 claim form. Jim Smith Logging denied claimants' compensation request based on an affirmative defense arising under La.R.S. 23:1208.1. On October 30, 2003, the Office of Workers' Compensation decided in favor of the claimant, Mr. Hickman. Jim Smith Logging filed a timely, suspensive appeal on December 12, 2003. Mr. Hickman answered the appeal and asked for penalties and attorney fees.
ASSIGNMENTS OF ERROR
The defendant, Jim Smith, raises the first and second assignments of error. The third assignment of error is raised by the clai
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