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Ashworth v. Wal-Mart Stores12/10/2003
s, indemnity benefits, and other expenses.
At the start of the hearing on the merits, Ashworth waived her right to any further indemnity or medical benefits arising from the March 6, 1999 accident. The only issues remaining was whether Ashworth violated La.R.S. 23:1208 and whether Wal-Mart was entitled to restitution. At the close of evidence, the workers' compensation judge took the matter under advisement. He then issued an oral ruling finding that Ashworth had not committed fraud for the purpose of obtaining compensation benefits in her statements to her treating physicians denying any previous similar type of back injury . However, the workers' compensation judge found that she committed fraud with regard to her claim for mileage reimbursement based on an August 7, 2000 off-work slip from Dr. Perry's office. Based on this finding, the workers' compensation judge held that Ashworth forfeited all rights to benefits as of August 7, 2000, which she had already waived. He further denied Wal-Mart's request for restitution. A judgment was rendered in this matter. This appeal by Wal-Mart followed.
ISSUES
On appeal, Wal-Mart argues that the workers' compensation judge erred in denying its request for restitution based on the fraud committed by Ashworth.
FORFEITURE OF BENEFITS
La.R.S. 23:1208(A) provides, "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." Thus, in order for an employer to prove forfeiture pursuant to La.R.S. 23:1208, it must prove that a false representation was willfully made by the employee for the purpose of obtaining compensation benefits. Resweber v. Haroil Constr. Co., 94-2708, 94-3138 (La. 9/5/95), 660 So.2d 7. An inadvertent or inconsequential false statement will not result in the forfeiture of benefits. Jim Walter Homes, Inc. v. Prine, 01-116 (La.App. 1 Cir. 2/15/02), 808 So.2d 818. In addition to assessing an employee with civil penalties, a workers' compensation judge may also order restitution for any benefits or payments obtained through fraud. La.R.S. 23:1208(D). Whether an employee has forfeited her right to such benefits is a question of fact, which will not be reversed on appeal in the absence of manifest error. Smith v. Quarles Drilling Co., 99-171 (La.App. 3 Cir. 6/2/99), 741 So.2d 829, writ denied, 99-1949 (La. 10/8/99), 751 So.2d 227. La.R.S. 23:1208(D) provides, "In addition to the criminal penalties provided for in Subsection C of this Section, any person violating the provisions of this Section may be assessed civil penalties . . . and may be ordered to make restitution." Thus, the awarding of restitution lies within the discretion of the workers' compensation judge. The award or failure to award restitution will not be reversed in the absence of an abuse of discretion. See Teano v. Electrical Constr. Co., 02-2032 (La.App. 1 Cir. 5/9/03), 849 So.2d 714.
In denying Wal-Mart's request for restitution, the workers' compensation judge stated that he was doing so based upon his finding that none of the payments made to Ashworth prior to August 7, 2000, were based upon any fraudulent misrepresentations by her. He stated that the basic proposition raised by Wal-Mart was that Ashworth was untruthful to her treating physicians regarding any prior back problems. Although Ashworth told the physicians that she had suffered no prior back problems, the evidence showed that she was treated for lower back pain by Dr. Chanh Vinh, a general practitioner, in 1990 and 1994, and by Dr. Qarni in 1998 and 1999.
Dr. Vinh's medical
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