Densic Hayes VS Angola State Penitentiary
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 CA 0553 DENSIC HAYES VERSUS P j LOUISIANA STATE PENITENTIARy1 7 J 1 UJ jdif hi On Appeal from the Office of Workers Compensation Administration District 5 State of Louisiana Docket No 02 00715 Honorable Jason G Ourso Judge Presiding Ted Williams Attorney Williams Plaintiff Miller LLC Baton Rouge Philip J Baton Rouge LA Densic Shaheen for Appellee Hayes Attorney for Defendant Appellant Louisiana State PenitentiaryI Department Of Public Safety and Corrections LA BEFORE PARRO GUIDRY AND McCLENDON JJ IE If 1 7 o The defendant J was initially GI C tJ identified 5j itA as Angola fss State qr s j AUG I 5 2007 rendered Judgment 9O f65 Penitentiary v l J r t Ifill PARRO J In this workers favor of its former on about or compensation case an employer appeals from employee which judgment declared that January 20 1997 benefits medical benefits following reasons we and awarded the a judgment in accident had occurred an employee supplemental earnings penalties attorney fees legal interest and costs For the affirm Factual Backaround and Procedural History Densic Corrections Hayes Mr Hayes Department Angola Louisiana Mr employment directing a he had lifting or as about employed by the Department of Public Safety and the food director at Louisiana January 20 1997 while was secretary Dorothy Wilson An accident report was cases physicians Mr on a loading dock Hayes testified that he and others in the business office about the completed by Sharon Augustine which indicated that of food The report which was to Mr Hayes L James dated Therapy for an to Baton the BRGMC records 1997 fall physician on Hospital 4 February 4 1997 treatment for VA pursuant 1998 indicated that Ms in Baton to a referral Mr lifting a case loading dock Based Hayes began seeking on a is the proper party defendant See LSA R S 2 James Mr BRGMC Physical arose six Nonetheless initially commenced referral from Mr treatment on injury from symptoms Hayes primary July 29 1999 from Dr Gray Wesley Barrow with the Rehabilitation Hospital of Baton Rouge who Department Dr of food in the freezer reflected that the onset of his symptoms on a by Rouge General Medical Center was his Rouge and then from initial evaluation at which time he indicated that his to seven months earlier when he a February initially received In November 1998 Hayes presented himself following he at the Veterans Administration Dr Trenton The at injured himself when Mr Hayes slipped off of the end of the porch dock while According 2 Penitentiary in the course and scope of his up to the dock backing Augustine had been informed about the accident care State Hayes allegedly fell and injured his back while supply truck that informed his incident On 2 was 36 401 A and 8 was 4 board certified in physical medicine and rehabilitation back pain since Dr fall at work in Barrow stenosis him a Subsequently some relief connection Mr this a history of low lumbar radiculopathy secondary to lumbar Hayes received three lumbar steroid injections which gave 1999 determination compensation indemnity benefits of left was On December 22 with Hayes gave January 1997 diagnosis s at which time Mr Dr Barrow took Mr the to Mr Department Hayes off work began August 30 2000 Dr Barrow felt that Mr Hayes could function workers paying Hayes for temporary total disability at a In TTD As sedentary work capacity with very limited bending squatting twisting pulling and pushing the Subsequently Department offered Mr Hayes a desk headquarters within the sedentary restrictions designated by job at the Department Dr Barrow s Rather than accept this offer Mr Hayes decided to retire effective May 12 2001 The Department discontinued the payment of indemnity benefits Dr Barrow believed that Mr 2001 On that he August 23 2001 slipped off of unloading workers The a wet RS 23 1208 from Dolphin Department s After work related a a a motion for summary WCJ judgment seeking determine whether Mr Used Tires Dolphin s 3 Following a 3 In 1998 alleged 4 to have the Hayes had violated LSA by receiving workers compensation benefits while earning s 13 truck to the dock for a hearing an income the WCJ denied the motion trial of this matter injury in an 4 the WCJ declared that Mr accident that occurred on or Hayes had suffered about January 20 Accordingly the WCJ awarded supplemental earnings benefits SEB rate from As of March disputed claim for compensation alleging loading dock while directing Department filed compensation judge February 2001 Hayes had reached maximum medical improvement Hayes filed Mr in a 1997 at the maximum February 12 2001 to March 26 2001 and from March 26 2002 until such Mr Hayes bought Dolphin s he had derived At the trial the no Used Tires which he income from the business parties stipulated that Mr nor Hayes prescribed 3 operated through employees His affidavit paid himself any wages or salary had he claim for temporary total disability benefits had time the as pursuant Department to the workers medical benefits 5 000 were the to establish Mr 5 compensation law Penalties in the amount of also awarded of its motion for able was along trial the new with The Hayes wage earning capacity judgment also ordered payment of 2 000 and attorney fees in the legal interest and all costs Following amount of the denial Department appealed contending that the WeJ erred in following respects 1 failing to 2 failing to find that Mr 3 finding accident 4 grant its motion for summary judgment that Mr Hayes had committed fraud Hayes had proven the occurrence of a work related January 20 1997 on finding causal a relationship between the January 20 1997 accident and his condition 5 that the return to work program and finding Department 6 did not meet the failing benefits limitations 7 to find restrictions that forfeited by thereby taking was sedentary employment offered by the set by Mr Hayes physician Mr Hayes entitlement to workers compensation his failure and refusal to return to work within his himself out of the workforce and awarding SEB penalties and attorney fees Willful false Statement failure to Report Earninas By way of its assignment of summary error pertaining judgment the Department alleged At the time of the alleged accident A It shall 6 LSA R S be unlawful Mr to the denial of its Hayes had violated LSA 23 1208 motion for 5 R 23 1208 provided in pertinent part for any person for the 7 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 5 The judgment or representation declared that Mr Hayes was not entitled to SEB from March 26 2001 to March 26 2002 6 Section 1208 applies to any false statement misrepresentation or including one concerning a prior made specifically for the purpose of obtaining workers compensation benefits therefore the statute generally becomes applicable at the time of an employee s accident or claim Newman v Richard injury Price Const Co 7 02 0995 La App 94 3138 La 9 5 95 94 2708 Section 1208 by was subsequently 1997 La Acts No 1108 9 1 1st Cir 8 8 03 amended by 859 SO 2d 136 140 citing Resweber v Haroil Constr 660 So 2d 7 14 by 2003 La 1997 La Acts Acts No 702 4 No 90 9 1 and 9 1 by 1997 La by 2005 La Acts Acts No 394 No 257 9 1 9 1 E Any employee this Section violating shall upon compensation judge forfeit any right to compensation benefits under this Chapter determination by G Chapter earnings the workers Whenever for to employee receives benefits pursuant to this thirty days the employee shall report his other his employer s insurer quarterly on a form prescribed by the more an than director H 1 Whenever employee fails to report to his employer s as required by this Section within fourteen days of his receipt of the appropriate form the employee s right to benefits as provided in this Chapter may be suspended If otherwise eligible for benefits the shall be entitled to all of the suspended benefits after the form employee has been provided to the insurer an insurer 3 The insurer may request a suspension of benefits or an penalty for failure to report as provided in this Subsection form LDOL WC 1008 with the director assessment of a by filing The document although a Department argued that stating he was he had failed to in Mr Hayes had committed fraud by signing a compliance with all the workers compensation laws comply with LSA R S 23 1208 G which required him to report any and all other earnings he received while receiving workers compensation benefits signed The Department introduced by Mr Hayes compensation law The Hayes with that form form and an signed by Mr certifying Hayes was 8 Copies were in was compliance with an Hayes Roosevelt Smith an its the insurer workers provided Mr Employee Certificate of Compliance 8 Employee s Monthly Report of neither of which had been Earnings state risk claims adjuster with the Office of Risk affidavit that these two documents package of documents routinely The he provided with sent to workers were generally included compensation claimants like Mr Department maintained that Mr Hayes had deliberately ignored his duty to report his earnings from Dolphin willful that Employee Certification Form that had been Department maintained that when he Management averred in in the an misrepresentation of these unsigned Mr forms s to his employer s insurer and Hayes had forfeited his entitlement along with Mr Hayes in the record 5 as a result of this to all of his workers income tax statements for 1999 through 2004 compensation benefits 12 4 02 relying St Bernard Police on Jury Duplessis 02 0632 v 831 So 2d 955 Mr conduct Hayes maintained that his failure to report or any to hide his attempt was not operation of Dolphin the result of fraudulent Mr s Hayes stated that he had told his supervisors with the Department that he owned Dolphin that he had never loss paid himself throughout had any the time at issue salary or earnings to report willful since that misrepresentation reimbursement benefits willful involved case The which a false or Department claimant s subjected him willful Rather this case Hayes testified that he did Mr Smith self nor had Mr Smith employed he we find that the WCJ LSA 5 R 23 1208 A s or was Department raised the judgment and it summary reconventional demand a order on the workers case is misplaced regarding mileage compensation in the matter before us did not establish a to the penalties provided by LSA deals with the failure to comply with statutory 5 R 23 1208 G not recall to receiving the additional two forms from complete such s a form defense were Based earning money relating or this evidence on to violations of reasonably supported by the record and is judgment Wood v issue of Mr re urged Nonetheless defense in a not 23 1208 G specific manifestly 6 8 3 05 a motion answer issue in its before the court is deemed placed App 1st Cir via subsequent supplemental the WO did not address this any issue that has been Brian Harris Autoplex 04 1316 La on violation of LSA R S Hayes this s Hayes made obtain to Duplessis anyone else told him that if he required is in that Mr misrepresentation rejection of the Department G showing 9 erroneous Silence in or Dolphin 5 R 23 1208 G misrepresentation that could subject Mr Hayes Mr claim was no reliance on at a Hayes argued he did not believe he statement s alleged operated net loss a to the forfeiture of his workers Department s allegations 23 1208 E The reported in a violation of LSA reporting requirements described in LSA 9 Mr He also s and that the business that he Accordingly there We also find that the was wages Because of this compensation benefits resulting 5 R a His income tax statements showed any La a for and judgment rejection of the 923 So 2d 17 22 3 n Furthermore the R S 23 1208 H been 1 penalty for violating LSA which Even if sent all of the necessary forms to Mr a suspension of benefits assessment 3 or an of 1 The occurring was may v be satisfied of an January 20 1997 sufficient to of the incident in that Mr 593 So 2d 357 discharge this and 2 the worker s 361 by La of or casts 1992 was A worker an 5 R accident insufficient to s testimony alone provided two elements serious doubt on the worker s are version testimony is corroborated by the circumstances of the worker or s friends testimony may be Corroboration may Id determining whether the worker has discharged his burden of proof the trial accept as true a witness s uncontradicted party absent circumstances casting suspicion Id The WCTs determinations the determinations manifestly LSA by preponderance of the evidence a proof is a whether provided as workers compensation action has the a Corroboration provided by medical evidence court should worker has which are erroneous a not show that a insufficient evidence of provided by the testimony of fellow workers spouses In requesting required by LSA R S as Hayes testimony alone burden other evidence discredits following the alleged incident also be proof in Accident work related accident a Harbert Int l Inc no penalty a was The claimant in proof establishing 1 penalty a no appropriate sustain his burden of Bruno assessment an Department argued that there on burden of or Hayes there is proof the Department did Occurrence of 23 1208 H governed by LSA form LDOL WC 1008 with the director In the absence of such suspension of benefits is assumed for the sake of argument that the we the record that its insurer filed 23 1208 H 23 1208 G merely allows the suspension of benefits until the report has provided to the insurer Department s insurer 5 R as on the to whether the worker discharged not to testimony although the witness his or be disturbed Id 7 her on reliability of this testimony s testimony is credible and burden review of unless proof are factual clearly wrong or The accident and treatment injury Specifically a to produce any witness to the causal connection between his alleged it contends that the first evidence concerning his condition pertained to treatment received with a box of ribs received Hayes for failing medical evidence that would show or accident 1998 Department faults Mr history The of back a on of medical November 16 injury having occurred six months earlier while lifting a Department maintained that although Mr Hayes testified that he had prior treatment supporting evidence no Department noted that the doctor on whose offered was the Additionally testimony the WeJ relied first treated Mr Hayes in July 1999 and that doctor s opinion was based on the history given by Mr Hayes Mr 1977 Hayes testimony established that he had worked with the Department since He had received Prior to that time of the His position was was that of a involving physical 1997 he backing informed his office was labor employed in to unload As Ms a Wilson was trucks loading ramp while directing about the incident Mr The morning following the incident to go down his that he as soon after its to Mr occurrence on his workers he a as at that time from the VA he returned to his replied that he wanted was a lot of while He little sore By the which pain had He testified continuing to work in Hayes he reported the accident to Ms Augustine several days Mr James when he obtained working experiencing January 18 wheeler that leg and the muscles in his back had tightened up sought medical treatment According was an on Hayes injured his back following morning he he Angola required to perform many He stated that When she told him that he should get it checked out begun pain slick At the time the director of food services at result of this incident to wait and see how he would feel third as including unloading on a praise for his job performance in the armed forces for 21 years working supervisor in that he slipped and fell secretary commendations and Hayes had served alleged accident he duties 20 Mr numerous Hayes stated that he began receiving treatment from permission to see compensation claim 8 any doctor of his choice from Dr someone The dated 4 employer s first report of injury February 1997 1997 According when he of ribs cases 4 1998 10 was prepared by Ms Augustine disclosed that the Department knew of his injury to the report Mr Hayes injured his lower back storage At that time area Augustine that he had received treatment at the Mr on February January 20 on slipped off the end of the porch dock while changing in the cold This report out food items Hayes also reported Veteran Affairs Clinic to Ms and Baton Rouge General Hospital In light of this evidence Hayes testimony January 20 was 1997 we conclude that the WO credible and its are finding of the s determination that occurrence reasonably supported by the record and of accident an are Mr not on manifestly erroneous Causation The Department challenged the WCTs finding that relationship failure of between the proof is based January 20 on An otherwise if he Dyson Cir can v were the presence of a 1992 healthy employee with a aggravated or is entitled to benefits accelerated his 610 SO 2d 953 is presumed 1st to have caused his of a La not manifested his commencing with the accident disabling symptoms appeared and that there is either medical possibility 955 injury App disability when the claimant proves that before the accident he had that alleged by Dr Barrow and others for preexisting condition employee s work related accident disabling symptoms causal introduced at the trial Employees Group Benefits Program An This a preexisting back condition and the length prove that his work contributed to State Hayes had shown 1997 accident and his condition of time between the accident and the treatment rendered which medical records Mr or circumstantial evidence indicating causal connection between the accident and the 10 a disabling reasonable condition According to Mr Hayes he reported the incident to Ms Augustine several days after the injury but she complete an accident report until February 4 1998 The Department acknowledged that the report date may have been a typographical error in light of the fact that she admittedly had been informed about the accident on February 4 1997 The report also is stamped entered Feb 8 1997 further emphasizing the erroneous report completion date did not 9 Walker Halliburton Services v 369 writ denied Dr James records records were 95 1507 was not August Hayes which can discern that Dr had begun to the R five or P were into evidence that Mr introduced into evidence St Amant a visit on a was on referred by irritation 1998 in indicated the initial onset occurred November 1997 According to the records Mr or seven 17 August information 1998 for we pain that notes reflect that Mr in January 1998 Hayes related his condition These notes further indicate Dr James notes from history of similar problems for which a Dr James diagnosis was in the left lower Physical Therapy where he however the records when he slipped off a Hayes probable degenerative extremity was Mr Hayes initially evaluated of Mr Hayes that Mr Hayes an onset further Mr state dock and hit his back Hayes reported that he began experiencing additional months prior to the evaluation when he was lifting up on Hayes explained that with the treatment being rendered by Dr James he got to the point where he then all of 11 on From this in the freezer at work Mr Mr Hayes medical records of other or The records from this visit disclosed condition symptoms about six Mr causing sciatica Dr James to BRGMC November 16 a case saw physicians working with history of back problems before this injury August 26 1998 disclosed nerve root 654 So 2d 365 days earlier in Mr Hayes left buttock radiating down the left leg had received treatment from the VA disc with 1 95 excerpts of the medical of Dr James and other job injury that had occurred Hayes had However included in the business top of his foot Dr St Amant s to an on the App 3rd Cir 3 660 So 2d 481 17 1998 are La witness at the trial of this matter and his medical as a offered to treating physicians four not called Mr himl1 who treated 93 722 La 9 22 95 directly dating back Inc a sudden was feeling pretty good but always several months after the accident Hayes testified that Dr James eventually referred him Evidence in the record reveals that Dr employed with the Baton Rouge Family James Dr R Medical Center 10 P he began to Dr St Amant in some constant to hurt pain really badly Barrow and Dr David R Carver were all Dr Barrow stated that and L4 5 levels that stenosis Barrow result from can Subsequently 1999 producing moderate bilateral foraminal diagnosis s Mr August 5 1999 MRI revealed an Mr Hayes was left lumbar took a was tolerating precipitating radiculopathy secondary his work Mr Hayes off work fairly well As of Thanksgiving In connection with this 1999 as a capacity with very limited bending Barrow squatting explained that he would expect anything outside increased Mr of this restriction Mr twisting Hayes to pulling experience On October 9 2000 Hayes symptoms therefore Mr a Mr at Hayes and pushing flare up when was the As sedentary work Dr Barrow noted that Hayes driving time Hayes determination of Hayes could function stenosis of that date Dr to Mr Dr Barrow felt that Mr Dr September 22 Department began paying workers compensation indemnity benefits August 30 2000 event lumbar to On December 22 not worked since 12 bulge at the L3 4 Dr Barrow testified Hayes received three lumbar steroid injections reported to Dr Barrow that he had Barrow disk stenosis chronic condition rather than a a Dr doing driving restricted by Dr Barrow to 30 minutes Dr Barrow recognized that Mr Hayes chronic condition and Barrow it is not symptomatic after described by symptomatic Mr In injury or a accident an trauma asymptomatic lumbar stenosis In Dr Barrow s to make an to a to Dr become opinion the type of accident asymptomatic stenosis become light of the history related by Mr Hayes Dr Barrow opined that the causal Hayes condition for Hayes would be sufficient January 1997 trauma caused believed that from probably pre dated his January 1997 accident According uncommon an stenosis could have resulted his condition relationship because to become Dr Barrow existed between the work related accident and Mr his lower back condition and since the accident symptomatic Mr was asymptomatic prior to the Hayes had consistently complained of low back problems 12 by Mr the Hayes testified that he was twice in October 1999 Department after his accident because of his back 11 and May 2000 placed on family medical leave Although not his statements to medical always been accurate Mr condition has remained the been helpful worker and in family determining member records from or obviously found Mr by Ms Augustine the accident well the as as condition shown in this finding of manifest the dock Mr that a Granted it may have testimony of history repeatedly given Barrow Hayes may have had Nonetheless the WC injury and his eventual to medical s personnel following opinion regarding causation preexisting back condition with a other evidence no was proVides reasonable support causal connection between the accident and the and we offered Hayes version of the incident and the conclude that the record case a co corroborated by the accident report prepared the basis of Dr we of his current Hayes prior to Dr Barrow to the initial perform the duties of his job Therefore finding a were cast serious doubt on Mr for the WCTs was on the doctors who treated Such facts which he had been able to or fall cause causation to have had the benefit of the Outside of the fact that Mr resulting injury a the Veteran s Administration facilities which served that discredited that is Hayes testimony with respect as to the date of the accident have as Hayes report of the underlying same or to be credible disability personnel disabling further conclude the record does not support error Entitlement to SEB An employee work related his by a Magee writ denied burden a 23 1221 3 a earn ninety percent The or more v earn employee bears the burden of the burden La of 04 2554 La 10 27 06 App 1st Cir 4 28 06 939 So 2d 1287 Once the proof shifts to the employer or to establish the 934 So 2d 800 who employee 807 08 meets this in order to defeat the employee s earning capacity must prove preponderance of the evidence that the employee is physically able to perform certain in that amount under the facts and circumstances of the individual Abek Inc 06 1876 a of his preponderance of the evidence that the work related injury resulted employee s claim for SEB by LSA R S injury wage inability to case supplemental earnings benefits if he sustains injury that results in his inability to average pre proving is entitled to receive job and that the job was offered to the 12 employee or that the job was a available to the Banks 551 employee in his Industrial v the or Roofing employer s community Sheet Metal Works Inc record is clear that Mr Hayes Hayes capable of working was opined that with Mr Hayes was limited Hayes However the results of February 1 2001 On at Dr Barrow effort during right lateral thigh pain The restrictions set suitable Based a transitional to that had been light to medium This Dr Barrow maintained his in finding that the not For that set based reason on March 26 the evidence for the period of March 26 2001 to March 26 2002 13 is not properly lacks merit in that the WC by Dr Barrow on sedentary Hayes had been offered Hayes takes issue with this finding in his brief he failed to file a Department s appeal therefore the WO s finding that Mr Hayes 2133 This return to work meet the error to the art The results of this Hayes had given maximum answer LSA C C P was to 60 minutes and could lift up assignment of job within the restrictions However performed permanent nature indemnity benefits ceased 13 time a showed that Mr Hayes Department had shown that Mr Hayes Barrow anything greater than sedentary duty employment within the Department Mr as Dr significant flare up of his right buttock pain to be of a by Mr Hayes physician found that the Although FCE the fact that Mr on not do by Dr Barrow Hayes entitlement a high pushing than 30 minutes at recommendation even as type of gainful some sedentary work capacity and employment offered by the Department did been available to Mr 13 696 So 2d Hayes treating physician a to the knee after that evaluation Hayes should found at more Department asserted that the WC erred program and the WC s the FCE and had suffered was Mr pulling Hayes could sit between 30 pounds to waist height Mr 2000 functional capacity evaluation a to 35 restriction twisting unable to drive was evaluation indicated that Mr position that August 30 squatting capable of light physical demand which area to the exact level at which Mr as only capable of functioning bending that Mr very indicated Mr La 7 1 97 capable of was employment However there is conflicting evidence and 96 2840 geographic 556 The on reasonable or concluded that 2001 was the point at shown to have presented the WO motion for was appeal or an not entitled to SEB before this court on appeal See found that the Department had shown that the job transitional nature Lee Jennings the Deputy Undersecretary Management and Finance stated that the Department to provide temporary relief for workers into their regular jobs employee with other or some number of employees and inmates Hayes eligible for placement was Jennings was clear that this Hayes restrictions him beyond a were As Office of Mr to transition back Hayes capable was a administrator dealing with Department s headquarters assignment would be of one was not This evidence year job allowed to large a a Mr However temporary nature and that if Mr was for recover provides reasonable support for the period of a SEB for the on this period of March 26 2001 to one year Based 14 his entitlement to the or light of his knowledge and experience Mr at the WCTs decision that the transitional March 26 2002 temporary permanent the Department would be unable to accommodate maximum of finding Mr Hayes In over opportunity type of employment as an a policy had been implemented s to afford them the long record of state service a only of was to indemnity benefits from that point forward the Department contended that Mr Hayes should have been barred from receiving SEB based on the fact that his retirement accident in precluded his question the right to SEB pursuant event exceed a maximum of five hundred the employee retired Social be Security payable 23 1221 3 Act iii 15 614 benefits found to was to came be In Pierce So 2d 608 to LSA 5 R At the time of the 23 1221 3 twenty weeks and was to could in no terminate when began to receive old age insurance benefits under Title II of the whichever not was d or return to work v first less however the period during which SEB could than one hundred Lafourche Parish Council the termination condition based on four weeks 99 2854 receipt LSA R S La 5 16 00 of old age unconstitutionally discriminate against employees over 762 insurance the age of 14 Therefore we find it unnecessary under the facts of this case to determine whether Davis v Cippriani s Italian Restaurant 02 1144 La App 1st Cir 2 14 03 844 So 2d 58 writ denied 03 0753 La 5 9 03 843 So 2d 403 15 LSA 1070 Act required 5 R 23 1221 3 1 Dr d Barrow iii was s written amended to eliminate the reference to The amendments were approval by of this available 2001 La Acts No job 1014 1 and 2001 La Acts old age insurance benefits under Title II of the Social identical 14 No Security 62 the basis of age on So 2d 123 R S d 23 1221 3 d had was Based May 12 2001 on obligated however to he actually retired See Hayes intention to the provisions of LSA RS Alternatively in that was and in its first filed on judgment is silent to retire operate Dolphin s 23 1221 3 d iii His retirement s unless it had plan state been Tynes v Gaylord Container Corp 02 0519 03 0769 was La 5 9 03 23 1221 3 d iii are state Therefore as there is court answer as to a claim or sought not addressed demand by the WCJ Arceneaux 874 SO 2d 228 241 writ denied 15 we evidence of conclude that v 04 0930 was raised by the and reconventional demand placed before the Barham no Hayes from his military retirement social supplemental and amending was Mr recognize its entitlement Although this issue it App 1st Or inapplicable retirement 2004 no sufficient to rebut any argument Department seeks to have this Mr La 843 SO 2d 404 permanently withdraw from the work force the court denied the relief 1st Or 3 12 04 to Mr withdrawn from the work force with 12 July injury ie light of income received by security benefits Department the Hayes elected law compensation in the used tire business Mr Mr deprive him of any other benefits that the 844 SO 2d 80 88 89 writ denied credit we LSA R S to the work related entitled under the state was that he had removed himself from the work force a of meaning to retirement under LSA R S provide under workers returning previous job due Because of his back condition equate Hayes self employment to the Following his retirement he continued established that he had 2 14 03 within Thus his age and the number of years in state service his years of service did not intention of 637 employee retires for purposes of LSA retired unable to return to his was election to take benefits to which on 5 23 94 employee withdraws from the work force Hayes eligible to retire This does not based an La iii Hayes was effective Mr if he had sustained Hayes when the iii determine Mr City of Shreveport 93 2928 v 126 27 the court concluded that 23 1221 3 must In Allen Generally when court it is presumed that Kozak 02 2325 La 6 4 04 a La App 876 So 2d 87 The record reveals that retirement Mr plan in the amount of Since 1974 he had been he turned 62 on Hayes began receiving benefits under his state 1 100 per month when he retired 1 400 per month in receiving August 26 1999 he began receiving on May 12 2001 military retirement and when 500 per month in Social Security old age benefits Louisiana Revised benefits for injuries person is benefit 23 1225 A producing permanent provides that workers total disability receiving Social Security disability benefits coordination statute benefits and compensation permanent total disability So 2d 623 625 based finding of on a In the a any evidence that Mr Therefore LSA At the 23 1225 Statute C federal present If an Social Hayes in was v Hayes was workers cases 5 18 99 applicable accident part provided Benefits under was not an offset was mandated by LSA R S 16 Compensation Law disability benefit plans in the II of the proportion employer an Any other workers compensation benefits then compensation benefits under this Chapter shall be reduced unless an agreement to the contrary between the employee and the employer liable for payment of the workers compensation benefit so that the aggregate remuneration from Subparagraphs a through d of this Paragraph shall not exceed sixty six and two thirds percent of his average weekly wage there is 16 Subparagraph C l b was repealed by 734 in this case Old age insurance benefits received under Title Social Security Act to the extent not funded by the employee c of Furthermore the record is devoid of Benefits under the Louisiana Workers d La in for SEB and b by wage loss employee receives remuneration from a funded a Louisiana Pitre 98 2564 the award to Mr is receiving federal Social Security disability benefits is not Hayes Section 1225 A Security disability benefits permanent total disability time of Mr which case shall be reduced when the specifically to coordinate AI Johnson Const Co 5 R 23 1225 A 1 enacted compensation 2003 La Acts No 616 16 9 1 This subparagraph obligation injured which when the employee construed authorizes employee right s Cousins a reduction the workers receives other enumerated benefits is to workers 608 So 2d 978 compensation restriction a compensation benefits and City of New Orleans v of must be La on an 1992 981 strictly An employer seeking credit for benefits covered by the statute has the burden of proving both entitlement to and the amount of the credit 1766 La 6 25 04 In 1978 871 So 2d 1109 the Louisiana reduction of state workers federal Social a General Motors RS 23 1225 to Corp 03 provide for compensation benefits when the employee also receives The legislation took advantage of a federal statute that reduction in state compensation payments which when combined with the federal payments the burden v 1117 Legislature enacted LSA Security benefits permitted Jones on would amount to the state than the federal maximum more compensation system was A reduction of thereby accomplished In 1983 the legislature added paragraph C which provided for a reduction of workers compensation benefits by limiting the combined remuneration from workers compensation insurance benefits under Social Security benefits under disability other workers compensation benefits to two thirds of wages benefit Cousins old age plans and 608 So 2d at 980 The coordination compensation seeks lost wages while of wage loss to assure that the precluding the benefits in the employee receives overall some system of workers degree of recovery for employee from recovering duplicative benefits under different parts of the system that could exceed the actual wages earned prior to the disability See AI Johnson Const Co employee experiencing only loss benefit from the 9 22 95 Mart v 01 3013 La 843 to replace wages lost as Garrett v However 4 3 02 purposes of LSA R S 23 1225 C The theory is that wage loss should be entitled to receive employer 660 So 2d 841 Keel one 734 So 2d at 625 26 as Seventh Ward Gen the result of Hosp recognized by the supreme 817 So 2d 1 1 b only there is an one an wage 95 0017 La court in Wal important distinction for between old age benefits and benefits intended injury 17 While goal even the we agree that preventing duplication of benefits is a legitimate state convinced that La Rev Stat 23 1225 C 1 b does not meet the minimum test of bearing a rational relationship to that goal for we are following reasons Workers compensation benefits are paid from insurance provided by employers to compensate employees for loss of income resulting from work related injuries in exchange for their employees forbearance from suing the employers in tort Temporary total disability benefits replace a portion of the salary an injured employee could have earned had he not been injured La stat Rev 23 1 1221 a Social Security old age benefits on the other hand are not replace wages lost solely by an employee s inability to work They are provided to persons over the statutory age regardless of injury Unlike disability benefits or unemployment benefits a person may receive Social Security old age benefits while still employed and earning additional income Indeed those age 70 and older such as plaintiff may earn unlimited amounts without any offset against their Social Security income intended to Social old age benefits are not disability benefits but old age entitlements serving the same function as pension payments We point out that other forms of employer paid retirement income based on Security tenure cannot be deducted from coordinated with benefits received under the workers compensation system Cousins v City of New Orleans 608 SO 2d 978 La 1993 holding that workers compensation benefits could not be offset under La Rev Stat 23 1225 C 1 c when the or firefighter was eligible for tenure based retirement benefits under the same plan that provided disability benefits see also Matthews v City of Alexandria Keel C 619 So 2d 57 La 817 So 2d at 9 10 lb of the statute Therefore Accordingly received in federal Social Moreover from an benefit there is Therefore As to the the C Security old age benefits Department failed 1 c Department Hayes note that Mr or was assertion that Mr was at Pierce 762 for the amount receiving disability benefits any other workers compensation to prove its entitlement to a credit pursuant observed Hayes committed fraud by claiming to performing physical work performed by its employees occasionally did things while offset see is without merit was Hayes testified that he did very little work work an subparagraph d or s 817 So 2d at 10 Department s claim for evidence that Mr no be disabled when in fact he s the Keel employer funded disability benefit plan to LSA R S 23 1225 Dolphin the court in Keel reiterated that unconstitutional was So 2d at 614 monthly 1993 Dolphin s on his but Mr that made his back 18 at his tire daily shop visits to the we shop Hayes admitted that he worse The Department relied on more than the testimony of sedentary type Hayes using a were in the to videotape made testimony this issue or rolling day a Specifically tire However across he said he observed Mr the floor one day and rolling neither of the latter two observations light and the inside darkness of the shop made assessments reduce time place doing was investigator s written report and he admitted that the difference between the outside impossible one another on investigator who indicated that Mr Hayes work at the tire hydraulic jack wheeled toolbox a an on photograph or the work activities by the WO with regard we are to Mr it difficult to Given the obvious Hayes credibility Hayes and the investigator s unable to conclude that the WC eliminate the SEB to which Mr and see erred in failing to entitled was Penalties and Attornev Fees At the assessing an time of Mr Hayes accident the employer with penalties and attorney fees depended employer had failed to commence the payment of benefits discontinued benefits that had been timely paid 1347 La App 1st Cir 5 9 03 recoverable under LSA medical benefits fees but not insurer Rush Masonry for the and Inc were LSA R S was attorney fees insurer failed to La 6 29 99 737 SO 2d 41 44 by employers and insurers and has since been amended is to be by 2003 La to were commence indemnity benefits reasonably controverted imposition of penalties and attorney fees 23 1201 F or had or Snelling Personnel 02 v recoverable under LSA R S 23 1201 2 if the Although the workers compensation law 17 timely fashion Penalties and employer whether the on capriciously discontinued payment of benefits due 98 2271 undesirable conduct a failed to pay continued installments of timely unless the claim penalties arbitrarily or if the in See Russell 849 So 2d 588 591 5 R 23 1201 F payment of benefits timely or applicable statutory authority for 17 Attorney employer 1s Williams These statutes v provided discourage indifference and were essentially penal in nature liberally construed with regard Acts or No 1204 2 effective 1 effective August to 15 2003 18 LSA R S 23 12012 repealed by 2003 La s R 23 12012 is now was substance of former LSA Acts No 1204 addressed in LSA 19 s R 23 1201 1 August 15 2003 The benefits penal statutes School Board 04 0434 02 2433 should be cast with trial court s La 4 23 04 La be are to strictly construed App 1st Cir 11 7 03 870 So 2d 300 Cooper 862 So 2d 1001 not Shappert Eng g 02 1631 La be disturbed 2 25 03 absent Department submitted that with the week physical work ending January 840 So 2d 1181 from receiving as a the attorney fees the basis cited tire business Dr Barrow job made available case attorney fees some Brown Texas LA v in inquiry reason to deny based 1 2 a To on the after the valid reason or Cartage Inc unable to Department urged that its The WCJ Department decision to award s failure to initiate SEB s February 12 2001 release to sedentary expiration of the March 26 2002 failure to pay benefits by the Department 5 R 23 1201 F reasonably was earnings that he had been after what would have been the to him involves Hayes being observed doing declared that he the February 2001 making this argument the Department overlooks as controvert it existed prior a claim the the to the 2003 amendment employer to avoid or its penalties insurer must evidence upon which to base its denial of benefits 98 1063 This argument also conflicts with the investigator under surveillance from March 1 2001 Hayes objective required that the claim be reasonably controverted in order have had 19 The crucial v arbitrary and capricious and the award of penalties In was and applicable provision is LSA and 19 particular times Since this which result of Mr by the WCJ for making such awards at two transitional as a Accordingly not was improper was penalties and attorney fees type work by 12 2001 result of his failure to report the termination of TTD benefits payments employer an Authement error 1188 an writ denied question of fact and the it terminated the TTD benefits in at his tire business at a time when he had anything and and 1009 Id The lift a manifest making this determination is whether the employer had benefits Tammany Parish The determination of whether penalties and attorney fees is essentially finding shall St v La 12 1 98 721 testimony and report through March 13 2001 s observations occurred after the Department had terminated benefits 20 So 2d 885 890 which indicated he Obviously the To placed Mr investigator s determine whether the employee s right to benefits had been reasonably controverted thereby precluding the imposition 23 1201 F a court must nonfrivolous legal of penalties and attorney fees under LSA R S ascertain whether the dispute or possessed factual reasonably counter the factual and throughout the time it refused to pay all Therefore refusing Hayes treating physician that he probably not do fulltime temporary job condition WC medical the issue is whether the to reinstate medical and medical or in information to part of the benefits allegedly owed or a or Id factual basis for indemnity benefits upon receipt of evidence from Mr was only capable of sedentary work which he could Considering err in engaged presented by the employee Department had any legal when the evidence Dr Barrow presented finding that the Department had deny benefits that would have enabled benefits in this information Department headquarters manifestly and his insurer or and later upon what would have been the permanent was did not at employer it to had we no reasonably controvert expiration of the indicated his conclude that the objective Mr reasons to Hayes right to case Decree For the foregoing reasons Administration is affirmed assessed to the the judgment of the Office of Workers Compensation All costs of this appeal in the Department of Public Safety and Corrections AFFIRMED 21 amount of 246 69 are STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 CA 0553 DENSIC HAYES VERSUS LOUISIANA STATE PENITENTIARY r J1l I byU McCLENDON J I respectfully herein concur concurs concur and assigns Based on the I cannot say that the We in the result 22 reasons numerous erred credibility determinations and therefore am bound to
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