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J. E. Merit Constructors12/28/2001
Eric J. Smith appeals a judgment by a workers' compensation judge (WCJ) that he had forfeited his entitlement to workers' compensation benefits due to his violation of La. R.S. 23:1208. The employer, J. E. Merit Constructors, Inc. (J. E. Merit), has also appealed, seeking an assessment of civil remedies against Mr. Smith, including penalties and restitution.
FACTS AND PROCEDURAL HISTORY
J. E. Merit had a contract to perform certain work at the Novartis plant. As part of this job , J. E. Merit hired Mr. Smith as a special duty worker. Mr. Smith's duties included working as a boilermaker, rigger, and pipe fitter at the plant. Specifically, his task was to remove an exchanger from the plant and replace it with a new one, which required that he wear a special suit with a hood. In this job, Mr. Smith worked twelve hours a day, seven days a week.
On July 12, 1998, Mr. Smith was working at the plant when he tripped and fell, injuring his knee. The foreman was present at the time of the accident, but no action was taken to provide Mr. Smith with medical treatment at that time. In fact, Mr. Smith continued to work for some time until he took off the special suit he was wearing and noticed the swelling in his knee. He then reported the swelling to his foreman, who sent him to the medical trailer at the facility.
The medical staff examined Mr. Smith on the day of the accident but did not provide any treatment that day, because another worker was being treated for injuries that were believed to be more serious. Instead, the medical staff simply released Mr. Smith back to full duty work. Mr. Smith testified that he continued to be released for full duty work despite his daily complaints of pain. During this time, the medical staff treated the injury as a simple sprain with hot and cold packs, ibuprofen and creams.
After several days of this treatment, Mr. Smith's knee had not improved. Mr. Smith testified that in fact the pain had increased, his leg had become drawn up and bent, and he was required to lean on a stick to walk. Nevertheless, J. E. Merit continued to treat the injury as a sprain. Finally, Mr. Smith demanded that he be allowed to consult a doctor about his knee. J. E. Merit responded by sending him home and cutting his hours down from eighty-four to forty hours per week.
J. E. Merit did ultimately send Mr. Smith to see Dr. J. Thomas Kilroy, who diagnosed Mr. Smith with a ripped meniscus and a possible chipped bone in his knee. Dr. Kilroy performed surgery on Mr. Smith in August of 1998 to correct these problems.
When Mr. Smith returned to work after the surgery, he was placed in a light-duty position that had been created specifically for him because of his injury . J. E. Merit did not normally have a light-duty position, and such positions were only provided to workers' compensation claimants. Mr. Smith was advised that he was guaranteed forty hours of work per week in this position instead of the normal overtime hours he had previously been working. In addition, he continued to receive his normal hourly wage of $16.50 in this light-duty position. However, this position did not make any provision for the large decrease in the number of hours Mr. Smith had been working prior to the injury, either in terms of supplemental earnings benefits (SEB) or additional hours.
Initially, Mr. Smith was placed in a back room where he would simply sit at a desk during the day. He was subsequently required to stock and sweep the warehouse and wash trucks. Despite the assurances that he was guaranteed 40 hours per week, only one time during his tenure as a light-duty employee did Mr. Smith receive 40 hours of work and the corr
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