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Hickman v. Logging9/29/2004
job" where people would have significant back problems whether they had good discs or bad discs. Both Mr. Smith and Mr. Hickman testified that the logging industry, especially the position of saw-hand, was no longer as injurious as it once was. Also, the claimant was pain free for the past three years prior to the new injury, and the defendant was unable to present any medical evidence to suggest that the second injury was inevitable or likely to occur.
Based on our analysis today, we find that the untruthful statement does not directly relate to the present medical condition. On this issue, the defendant has failed to meet his burden.
ASSIGNMENT OF ERROR NUMBER TWO
The defendant's second assignment of error concerns whether or not the trial court was correct in awarding benefits to the claimant. As previously discussed in assignment of error one, the employer was unable to prove that the claimant had the intent to deceive or that the untrue statement was directly related to the subsequent injury and that this statement has prejudiced the employer. Due to the employer's inability to prove the required elements of La.R.S. 23:1208.1, we determine that the trial court's award of benefits to the claimant was appropriate.
ASSIGNMENT OF ERROR NUMBER THREE
The plaintiff answered the appeal and requested penalties and attorney fees. However, we affirm the Workers' Compensation Judge's failure to grant penalties and attorney fees. Great deference is given to the trier of fact, and thus penalties and attorney fees are denied. "On review, a workers' compensation judge's determination as to whether penalties and attorney's fees are appropriate is subject to the manifest error standard of review." Jenkins v. Roy O. Martin Lumber, Inc., 03-143, pp. 8-9 (La.App. 3 Cir. 3/3/04), 868 So.2d 250, 255, writ denied, 04-1140 (La. 6/25/04), 876 So.2d 844. In order for the claimant to recover penalties and attorney fees, there must be a showing that the defendant did not raise a seriously disputed issue. "To reasonably controvert a workers' compensation claim so as to avoid imposition of penalties and attorney fees, the employer and its insurer must provide sufficient factual and medical information to reasonably counter the evidence provided by the claimant." Johnson v. Johnson Controls, Inc., 38,495, pp. 16-17 (La.App. 2 Cir. 5/12/04), 873 So.2d 923, 933-34. The defendant had a legitimate defense because the plaintiff failed to disclose his prior injury and this area has been the subject matter of much debate. It is unimportant that the defendant did not dispute every single point, as long as it raised a legitimate issue. Provision of worker's compensation statute authorizing award of attorney fees to claimant is penal in nature and, thus, must be strictly construed and employer should not be penalized for taking close factual or legal question to court for resolution. Lindon v. Terminix Servs., Inc., 617 So. 2d 1251, 1253 (La.App. 3 Cir.), writ denied, 624 So.2d 1226 (La. 1993).
CONCLUSION
We therefore affirm the decision by the Workers' Compensation Judge awarding compensation to Mr. Hickman. Costs of this appeal are assessed to the Jim Smith Logging.
AFFIRMED.
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