Wilfred Fontenot VS State of Louisiana Through The Dept. of Health and Hospitals
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2012 CA 1265 WILFRED FONTENOT v VERSUS y STATE OF LOUISIANA j THROUGH THE DEPARTMENT OF HEALTH AND HOSPITALS Judgment Rendered APR o 2 2 3 On Appeal from the The Office of Warkers Compensation District 5 State of Louisiana No 11 00842 The Honorable Pamela A Moses Laramore Warkers Compensation Judge Presiding Sheri M Morris Carlton III 7ones Assistant Special Attomeys Baton Rouge Louisiana General Attorneys for Defendant Appellant State of Louisiana tk the rough Department of Health and Hospitals Thomas C Ted Williams Attorney for Plaintiff Appellee Baton Wilfred Fontenot Rouge Louisiana BEFORE PARRO WELCH AND KLINE JJ IY 4A CGf vf b ill fJG CL fj Hon VJilliam F Kline Jr retired is serving as judge ad hoc by special appointment of the Louisiana Supreme Court KLINE J DefendanUAppellant State of Louisiana through the Department of Health and Hospitals DHH appeals a final judgment of the Office of Warkers Compensation OWC that awarded workers compensation benefits to its former employee For the following reasons we affirm FACTS AND PROCEDURAL HISTORY Claimant Wilfred Fontenot alleges he was involved in a work related accident on October 15 2009 while in the course and scope of his employment as an administrative assistant with DHH Following the accident Mr Fontenot filed a disputed claim for compensation with the OWC Mr Fontenot raised several claims including the incorrect calculation of his workers compensation rate the improper termination of his wage benefits lack of authorization for medical treatment and an alleged erroneous disability status designation Mr Fontenot also sought to recover all workers compensation benefits including medical and indemnity benefits as well as penalties and attorney fees Immediately prior to filing his disputed claim for compensation Mr Fontenot was charged in a separate criminal proceeding with felony theft insurance fraud and misrepresentation concerning workers compensation benefits in the amount of 12 These charges pertained directly to the benefits at 54 054 issue in this workers compensation matter No workers compensation benefits were paid to Mr Fontenot following his arrest At his arraignment Mr Fontenot pled not guilty DHH filed an answer to Mr Fontenot claim denying any knowledge of an s accident occurring on October 15 2009 which resulted in Mr Fontenot incurring an injury or occupational disease DHH further argued that Mr Fontenot was not entitled to any medical indemniry or disability benefits alleging the claimant had made false statements and material misrepresentations to obtain and maintain 2 workers compensation benefits DHH assened the affirmative defense of forfeiture as Mr Fontenot workers compensation benefits were terminated s when it was discovered that he was simultaneously receiving both workers compensation and unemployment compensation benefits DHH filed a motion to continue the pre mediation and trial in the trial workers compensation case pending the resolution of Mr Fontenot criminal s charges The Warkers Compensation Judge WCJ denied the continuance requested by DHH Following the denial of the continuance DHH filed a supervisory writ application with this court This court declined to exercise supervisory jurisdiction on the writ application Fontenot v State Department of Health and Hospitals 2012 La App lst Cir 1 unpublished 0002 12 4 Following the trial on this matter the WCJ ruled that DHH failed to meet its burden of proving that Mr Fontenot farfeited his workers compensation benefits DHH now appeals DISCUSSION Forfeiture of Workers Compensation Benefits DHH argues that Mr Fontenot violated Louisiana Revised Statutes Annotated 1208 23 by making false statements in order to obtain and maintain workers compensation benefits therefore his workers compensation benefits should be forfeited Section 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 3 The requirements for forfeiture of any right to workers compensation benefits under Section 1208 are that 1 there is a false statement or representation 2 it is willfully made and 3 it is made far the purpose of obtaining or defeating any benefit or payment Champagne v Roclan Systems Inc 06 p 20 La App 1 Cir 2 984 So 2d 808 824 writ denied 1928 08 20 1356 08 La 9 992 So 2d 989 Once it has been determined that a false 08 26 statement or representation has been made the WCJ must make a factual determination as to whether based on the record the statement or representation was willfully made specifically to obtain benefits and thus to defraud the warkers compensation system such that benefits should be forfeited Issa v LL G Const Inc 02 p 8 App 1 Cir 3 844 So 2d 912 917 writ 1215 La 03 28 denied 03 La 10 857 So 2d480 1875 03 31 Forfeiture of workers compensation benefits is a harsh remedy and statutory farfeiture must be strictly construed An employer has the burden of proving each element within the statute and the lack of any one of the elements is fatal to an s employer avoidance of liability Leonard v 7ames Indus Constructors 03 p 5 App 1 Cir 5 879 So 2d 724 728 writ 0040 La 04 14 denied 04 La 9 882 So 2d 1139 Any employee who violates 1447 04 24 Louisiana Revised Statutes Annotated 1208 23 shall upon determination by a WCJ forfeit any right to workers compensation benefits La Rev Stat Ann E 1208 23 An employee is also subject to criminal and civil penalties including restitution La Rev Stat Ann C 1208 23 and D Subsections 1208 and G also require the employer and employee to F submit a form to the employer insurer that includes a summary of the fines and s penalties for workers compensation fraud and further require the employee upon reasonable request to report his other earnings on a form to the employer sinsurer These forms have been promulgated by the Louisiana Workforce Commission 4 The issue of whether an allegedly false statement made by a claimant requires forfeiture of his workers compensation benefits is one of fact which is not to be reversed on appeal absent manifest errar The party who requests that benefits be forfeited must show that the claimant statements were not only false s but must also show that the statements were willful and deliberately made with the intent to obtain benefits Leonard 03 at p 6 879 So 2d at 729 0040 Mr Fontenot claims to have been injured in a wark accident on related October 15 2009 The fact of the accident is not in dispute When his workers compensation benefits commenced he signed a certification indicating that he understood and would comply with the obligation of notifying his employer s insurer of any and all employment including unemployment compensation However DHH did not provide Mr Fontenot with the statutorily required forms the 020 and 1025 to complete Mr Fontenot continued to receive workers EE compensation indemnity payments after his employment ended on May 12 2010 On June 15 2010 Mr Fontenot applied far unemployment compensation benefits while still receiving workers compensation benefits In order for an individual to receive unemployment compensation benefits it must be determined that he is able to work available for work and is conducting an active search for work La Rev Stat Ann a 3 1600 23 Thus not only was Mr Fontenot required to certify that he was not receiving workers compensation for a job injury he was also required to certify that he was willing and able to work Despite this Mr Fontenot received workers compensation and by deception unemployment compensation benefits from June 26 2010 through January 14 20ll The WCJ ruled that Mr Fontenot did not willfully make a false statement or representation for the purpose of obtaining workers compensation benefits pursuant to Louisiana Revised Statutes Annotated 1208 23 We agree While Mr Fontenot did make false statements when he told the Office of Unemployment 5 Security he was not receiving workers compensation benefits his false statements were made far the purpose of obtaining unemployment compensation benefits not workers compensation benefits Mr Fontenot never made a false statement to DHH regarding his receipt of unemployment compensation benefits and DHH never asked Mr Fontenot whether he was receiving unemployment compensation benefits Mr Fontenot sfailure to report his receipt of unemployment benefits to DHH does not amount to a statement or representation in order to obtain false workers compensation benefits Additionally DHH was statutorily required to supply Mr Fontenot with the 1020 employee monthly report of earnings form and the 1025 employee s EE certificate of compliance form that sets forth with particularity the fines and penalties for workers compensation fraud However DHH did not provide Mr Fontenot with these forms prior to the termination of his benefits The certification that was signed by Mr Fontenot was a form stating that he was not to receive wages unemployment compensation or other compensation at the same time This form did not include a summary of the fines and penalties far warkers compensation fraud the names addresses and phone numbers of the employee and employer nor was it signed by the employer ar dated Furthermore DHH was notified on June 13 2010 by the Office of Unemployment Security that Mr Fontenot had been awarded unemployment compensation benefits Uncontroverted testimony before the trial court also revealed that DHH actually advised Mr Fontenot to apply for unemployment compensation benefits the day after his position was terminated DHH should have notified Mr Fontenot that he At that time could not receive both We are also unable to conf that a 1025EE form was provided to Mr Fontenot after his irm benefits were terminated The claims adjuster John Chamberlain acknowledged that Mr Fontenot was not sent a form 1025EE and there is no form 1025EE in the record The record also indicates that 1020 forms were sent to Mr Fontenot sattorney on February 9 2011 after the benefits were terminated but a 1025EE form is not included in the documents sent on that data 6 unemployment compensation benefits and workers compensation benefits at the same time and then notified the adjuster to apply week credits during any for period unemployment compensation benefits were received instead of continuing to pay workers compensation benefits Attornev Fees in Workers Comnensation Forfeiture Action After rejecting DHH fraud defense regarding the termination of Mr s s Fontenot workers compensation benefits the WCJ awarded Mr Fontenot 000 10 in attorney fees DHH argues that its conduct was not arbitrary and capricious because there was a valid reason for terminating Mr Fontenot s benefits DHH also asserts that even if the award of attorney fees was proper the award in this case was excessive Penalties and attorney fees are not benefits awarded to an employee they are sanctions imposed on an employer subject to the same standard of appellate review as any other factual determination made by the WCJ Leonard 03 at 0040 p 10 879 So 2d at 731 The attorney fees awarded by the WCJ were based on the time energy and efforts expended by Mr Fontenot sattorney and are supported in the reasons for judgment We find no manifest error in the amount of attorney fees awarded by the WCJ CONCLUSION Far the foregoing reasons the judgment of the Office of Workers Compensation is affirmed All costs of this appeal in the amount of 863 are 85 assessed to the Defendant State of Louisiana through the Department of Appellant Health and Hospitals AFFIRMED 7
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