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Jim Walter Homes2/15/2002
Claimant appeals from a judgment of the Office of Workers' Compensation disqualifying him from receiving workers' compensation benefits based on violation of La. R.S. 23:1208, which governs misrepresentation concerning benefits. For the following reasons, we affirm.
FACTS
On May 5, 1995, during the course and scope of his employment with Jim Walter Homes, Inc., Benny Ray Prine fractured his right arm while working as a carpenter. Following this incident, Mr. Prine immediately began receiving weekly compensation benefits from Lumbermen's Underwriting Alliance, the workers' compensation carrier for Jim Walter Homes, Inc. (collectively referred to as "Lumbermen's"). Lumbermen's also began paying Mr. Prine's medical expenses associated with this work-related injury . According to the record, Mr. Prine had previously fractured his right arm while arm wrestling in prison, a fracture that may have only been partially healed at the time of this incident in May of 1995. On May 16, 1995, Dr. L. Fambrough performed surgery on Mr. Prine's right arm, consisting of an "internal fixation with intramedullary humerus rod."
Subsequently, Mr. Prine was referred to Dr. Kyle F. Dickson for treatment of "gross instability" that had developed in Mr. Prine's right arm. Dr. Dickson scheduled Mr. Prine for surgery on three separate occasions, all of which were cancelled because of Mr. Prine's failure to appear for surgery. As a result of Mr. Prine's failure to undergo the needed surgery, Lumbermen's filed a disputed claim against Mr. Prine for his unreasonable failure to follow recommended medical treatment. Mr. Prine eventually agreed to have the recommended surgery, which was performed by Dr. Dickson on January 28, 1999.
In connection with Lumbermen's initial disputed claim, Mr. Prine was deposed on January 21, 1999. Mr. Prine was asked whether he had ever been injured in an automobile accident. Mr. Prine indicated he had been involved in an automobile accident more than ten years ago and had "sprung" his back. Mr. Prine also recalled a "truck wreck" in either 1995 or 1996, where the only injury he sustained was a "powder burn" from the air bag. Mr. Prine added that he believed this accident occurred after his work-related accident in May of 1995. Mr. Prine was then questioned specifically about the time period following his May 1995 workers' compensation accident and whether he had any accidents or injuries since that time. The following colloquy occurred:
Q: Now let's talk about the time period after your accident of May, 1995. Have you had any accidents since that time?
A: Now what are you talking about, like falling down or something like that?
Q: Anything, any kind of accident.
A: No, sir, not that I can recall.
Q: Have you injured yourself?
A: No, sir.
Q: When I say injuries, I'm talking about any type of injury . Did you hurt yourself in any way since this accident in May of 1995?
A: Not that I can recall.
Following Mr. Prine's initial deposition and surgery in January of 1999, Lumbermen's learned that Mr. Prine had engaged in certain misrepresentations regarding his workers' compensation claim and the benefits he was receiving.
Accordingly, Lumbermen's filed the instant claim against Mr. Prine, seeking restitution of all amounts paid out in medicals and indemnity and a declaration that Mr. Prine had forfeited his right to workers' compensation benefits pursuant to La. R.S. 23:1208 "due to him misrepresenting his past medical history and subsequent accident and injuries and otherwise impairing [Lumberman's] subrogation rights." Shortly the
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