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Lyons v. Bechtel Corp.12/27/2000
States from Mexico, have you even sat on a piece of equipment?
Mr. Smith: Object to the form of the question, but you can answer it.
A: No, sir.
Q: Have you done any odd jobs, anything of that nature?
A: No, sir.
Q: Nothing where you were paid some small amount of money?
Q: You haven't earned any money since you returned to the United States?
A: No, sir.
Based on these statements during the deposition, the Appellees assert that they were justified in terminating the Appellant's benefits because he committed fraud in making these statements. The Appellees base their argument on inconsistencies between the Appellant's deposition testimony and his actions taken during their surveillance. The surveillance videotapes taken on January 6-8, 1999, and May 20-21, 1999, show the Appellant operating a tractor and a bobcat, lifting plywood boards, and leveling a building.
Upon a review of the record, we do not find that the Appellant's statements, made during his deposition, constitute fraud. Shortly after receiving the transcript of his deposition, on July 1, 1999, the Appellant filed an errata sheet clarifying several of his answers given during his deposition. In this errata sheet, the Appellant admitted that he had operated a small farm tractor and a bobcat, and he indicated that he had cut grass at his mother's trailer park every other weekend since March 1999. The Appellant further admitted using a tractor to move a temporary building about forty feet at his mother's house. Finally, the Appellant admitted that he helped a friend level a mobile home pad using the bobcat and the tractor. The Appellant indicated his friend paid him $165 and that he paid Kenneth Allen $75 to help with the labor. At trial, his testimony was consistent with the corrections he made on his errata sheet.
While we disagree that the Appellant's deposition statements amount to fraud, we find the Appellees' action in terminating the Appellant's benefits was not arbitrary and capricious. The Appellees' termination of the Appellant's benefits based on the inconsistencies in his deposition testimony and their surveillance videotapes did not constitute "willful and unreasoning action"such that an award of attorney fees under La.R.S. 1201.2 is merited. See Brown, 98-1063, p.8; 721 So.2d 885, 890. Therefore, we find that the WCJ did not err in failing to award the Appellant penalties and attorney fees for the Appellees' termination of his workers' compensation benefits.
DECREE
Considering the foregoing discussion, we hold that the WCJ erred in finding that the Appellant did not meet his burden of proving that his injuries were work-related. Accordingly, we order the Appellees to reinstate the Appellant's benefits retroactive to the date of their termination, and we order the Appellees to authorize the Appellant's needed surgery. In addition, we hold that the WCJ did not err in failing to award penalties and attorney fees for the Appellees' refusal to provide medical benefits. Finally, we hold that the WCJ did not err in failing to award penalties and attorney fees for the Appellees' termination of Appellant's weekly indemnity benefits. All costs are assessed against the Appellee.
REVERSED IN PART; AFFIRMED IN PART.
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