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Wallace v. Lavergne Transport6/12/2002
d. Moreover, the implication of the Smalley and Gray case is that in situations such as these this is not a fraud case anyway, this is just a case with supplemental earnings benefits which might amount to a suspension of benefits until the appropriate 1025 forms are executed and the report of earning forms are executed and returned to the payor of benefits.
The defendant, in its brief, argues that the claimant made material misrepresentations to State Claims Adjusters regarding statements that he was only selling seafood to family and friends and his inaccurate accounting of his work activity and statement of earnings. However, the claimant testified that his conversations with State Claims Adjusters were contentious. In addition, the representative from State Claims Adjusters, who had directly spoken with the claimant, did not testify. Moreoever, Dawn Neville, the assistant claims manager from State Claims Adjusters, testified that she listened in on a conversation with the claimant, but could not independently recall the specifics of the conversation and relied on notes, that she did not write, to testify as to the conversation. Furthermore, the record fails to indicate that the defendant presented the workers' compensation judge with any specific, proven inaccuracies in the claimant's accounting records. In view of the above, we find no clear error in the workers' compensation judge's determination that the defendant failed to show the claimant willfully misrepresented the situation after being confronted with his seafood business activity. Additionally, as the workers' compensation judge correctly noted, the claimant did not receive form LDOL - WC - 1025 and thus, was not put on constructive notice of the civil and criminal penalties for fraud regarding workers' compensation benefits.
DECREE
The decision of the workers' compensation judge is affirmed. All costs of this appeal are assigned to the defendant, Lavergne Transport.
AFFIRMED.
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