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Apeck Construction12/10/2003
PUBLISHED
Sullivan, J., dissents and assigns written reasons.
AFFIRMED IN PART AND REVERSED IN PART.
Apeck Construction, Inc. and Foster Bowers, Jr. appeal the judgment of the workers' compensation judge (WCJ). For the following reasons, we affirm in part and reverse in part.
FACTS
Mr. Bowers went to work for Apeck on August 7, 2000. On January 7, 2001, he was injured while working. Apeck began paying him compensation benefits but terminated those benefits on April 7, 2001. It filed a disputed claim on July 2, 2001, denying any obligation to Mr. Bowers. Mr. Bowers filed a disputed claim on September 14, 2001, seeking compensation benefits, medical treatment, penalties, and attorney fees. Apeck deposed Mr. Bowers in December 2001 and questioned him about riding a horse in March 2001 and being thrown from or falling off of the horse. He denied having ridden a horse and being thrown or falling off. Thereafter, in January 2002, Apeck supplemented its original answer, alleging that Mr. Bowers made willful misrepresentations in violation of La.R.S. 23:1208, which forfeited "any and all" workers' compensation benefits he may have been entitled to receive.
All issues were tried before a WCJ on October 22, 2002. At the conclusion of the trial, the WCJ held that Mr. Bowers did make willful misrepresentations in violation of La.R.S. 23:1208 and that he forfeited "any and all workers' compensation benefits from December 3, 2001," the date of his deposition. He was assessed a $2,000 civil penalty pursuant to La.R.S. 23:1208(D). With regard to Mr. Bowers' claims against Apeck, the WCJ awarded him total temporary disability benefits for the period of April 8, 2001 until December 3, 2001. Additionally, the WCJ found that Apeck was arbitrary and capricious for terminating his benefits and awarded his attorney $7,500 in attorney fees. Mr. Bowers was also awarded a penalty of $2,000 and his attorney was awarded attorney fees of $2,500 for Apeck's refusal to allow him to be evaluated by a physician of his choice.
ISSUES
Apeck appealed, and Mr. Bowers answered the appeal. The issues are whether Mr. Bowers' misrepresentations meet the requirements of La.R.S. 23:1208; if so, whether forfeiture under La.R.S. 23:1208 affects his claims for indemnity benefits, penalties, and attorney fees which preceded the date of his misrepresentations; and whether a penalty should have been assessed against him.
LOUISIANA REVISED STATUTE 23:1208
Louisiana Revised Statute 23:1208 provides in pertinent part:
A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by workers' compensation judge, forfeit any right to compensation benefits under this Chapter.
The supreme court first addressed La.R.S. 23:1208 in Resweber v. Haroil Constr. Co., 94-2708, p. 1 (La. 9/5/95), 660 So.2d 7, 9, holding that it: "applies to any false statement or misrepresentation . . . made specifically for the purpose of obtaining workers' compensation benefits and therefore generally becomes applicable at the time of an employee's accident or claim." The court further explained:
Section 1208 is clear and unambiguous and as such will be applied as written. La.Civ.Code art. 9; La.R.S. 1:4. Section 1208 clearly applies to any willful false statements or representations made "for the purpose of obtaining or defeating any benefit or payment." Sect
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