NABORS DRILLING USA v. DAVID DAVIS
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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 71 FROM: CLERK OF SUPREME COURT OF LOUISIANA The Opinions handed down on the 21st day of October, 2003, are as follows: BY WEIMER, J.: 2003-C -0136 NABORS DRILLING USA v. DAVID DAVIS (Office of Workers' Compensation, District No. 4) The judgment of the court of appeal is therefore reversed and the judgment of the workers' compensation judge dismissing Nabors' demand seeking to terminate benefits pursuant to LSA-R.S. 23:1208.1 is hereby reinstated. REVERSED. 10/21/03 SUPREME COURT OF LOUISIANA No. 03-C-0136 NABORS DRILLING USA v. DAVID DAVIS ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT OFFICE OF WORKERS COMPENSATION, DISTRICT NO. 4 WEIMER, Justice We granted certiorari in this case to review the correctness of the court of appeal s ruling ordering workers compensation benefits forfeited for a claimant s failu re to answer truthfully the employer s medical history questionnaire concerning a prior injury. After carefully reviewing the record and the ap p licable law, we conclude that un d er t h e circumstances of this case, the court of appeal erred in ord ering the forfeiture because there was no proof the employer suffered any prejudice as statutorily required. Accordingly, we rev ers e the judgment of the court of appeal and reinstat e t h e ju dgment of the workers compensation judge dismissing the deman d o f t h e employer seeking to terminate benefits pursuant to LSA-R.S. 23:1208.1. FACTS AND PROCEDURAL HISTORY On January 18, 1994, claimant, David Davis, was working for Petro Star Co rporation when he injured his right shoulder and right knee while lifting 100 pound mud sacks. He began treatment with Dr. Jo h n Co bb, an orthopedic surgeon, who diagnosed him with impingement tendinitis of the rotator cuff with hypertrophy of t h e d istal clavicle and the acromion. Surgery was recommended, and in Septemb er 1994, Dr. Cobb performed a partial acromionectomy, a resection of the distal clavicle, a resection of the coracoacromial ligament and an exploration of the cuff. Davis eventually ret urned to work, but not, apparently, without difficulty. In a fo llo w-u p examination on November 20, 1995, Dr. Cobb noted that Davis had returned to performing fairly substantial work with his shoulder. Accordin g t o Dr. Cobb: [Davis] says he has been p u llin g slips and trying to work, but based on his p ro b lem with the clavicle and the pin that he has, I don t think that this is a reasonable thing for him to be doing. I think it is aggravating his pain and he may even be getting some degree of scaline spasm, which is causing the paresthesias. He is going to have to resolve to do primarily light type work activities and not return to this unrestricted work that he is doing at the present time. When Davis reported for a furt h er examination on March 6, 1996, Dr. Cobb remarked: [Davis] is going to try to do some shrimping, get his o wn b o at . I think this is reasonable, where he doesn t have to overuse his shoulder and his arm, where h e can actually rest it. I think he can do the work sat is fact o rily. I think working on the rigs, primarily handling the slips was what was causing his problem. In May 1996, Dr. G. Gregory Gidman, an orthoped is t , rendered a second medical opinion, in which he assigned Dav is a 10% impairment of the upper extremity, which equates to a 6% impairment of the whole p ers o n , and recommended that Davis restrict his lifting to a medium level, performing heavy lifting occasionally, but not on a repetitive basis. Approximately four y ears later, on September 28, 2000, Davis began working for Nabors Drilling USA as a floor hand on a Nabors drilling rig. As part of his 2 employment with Nabo rs, Davis was asked to complete a medical history questionnaire. The questionnaire contained the following: NOTICE: YOUR FAILURE TO ANSWER TRUTHFULLY ANY QUESTIONS ABOUT PREVIOUS INJURIES, DISA BILITIES OR OTHER MEDICAL CONDITIONS MAY RESULT IN FORFEITURE OF WORKERS COMPENSATION BENEFITS UNDER LSA R.S. 23:1208.1. In answering the inquiries posed by the questionnaire, Davis responded negatively to the questions Have you ever had surgery? and Hav e you ever had an injury or illness as a result o f y o u r job or work? These responses were, obviously, untruthful. Davis worked for Nabors fro m Sep t ember 28, 2000, until November 14, 2000, without incident. On the latter date, Davis was performing his reg u lar duties, pulling drill slips, when he felt a pop in his back an d experienced a burning and pulling sensation in his low back radiating into the right leg. When the sit u at io n d id not res o lve itself by the next day, he reported the incident and sought medical treatmen t . He began seeing Dr. Cobb, among other physicians. Dr. Cobb requested an M RI and EMG. The MRI of the lumbar spine revealed a disc herniation at the L5-S1 level, an d t h e EM G revealed right L5 radicular changes. Dr Cobb recommended surgery. In addition, he spoke to Davis about the implications of him returning to the oil field, that he would have to get something lighter. On August 6, 2001, Nabors filed a disputed claim for compensation seeking a determin ation that, pursuant to LSA-R.S. 23:1208.1, Davis has forfeited his right to workers compensation benefits for his failure to an s wer truthfully the medical history questio n n aire (commonly referred to in the workers compensation arena as the second injury fund ques t io nnaire ) regarding his prior shoulder injury. According to Nabors, Davis failure to disclose his preexisting medical condition 3 p reju d iced Nabors right to receive Second Injury Fund reimbursement for Davis current inju ries , resulting in the forfeiture of his right to benefits under the Louisiana Workers Compensation Act. The matter was tried on stipulations and d ocumentary evidence on April 4, 2002. At the conclusion of the hearing, the wo rkers compensation judge determined t h at Nabors failed to prove a merger between the two work injuries and, as a res u lt , failed to prove prejudice to t h e emp loyer s right to receive reimbursement from the Second Injury Fund. Accord in g ly, the workers compensation judge signed a judgment dismissing Nabors demand s eekin g to terminate benefits under LSA-R.S. 23:1208.1. Nabors appealed, and the court of appeal reversed. Nabors Drilling USA v. Davis, 02-0751 (La.App. 3 Cir. 12/11/02), 833 So.2d 534. In an opinion issued December 11, 2002, the court of appeal first determined that t h e workers compensation judge was clearly wrong in her factual conclusions with respect to the issue of merger. The court found that the evidence introduced by Nabors established a sufficient merger between Davis prior and current injuries to satisfy the requirements of LSA-R.S. 23:1371(C)(2). The court of appeal then determined that because Nabors had no knowledge of the preexisting permanent partial disabilit y , it could not seek reimbursement from t h e Second Injury Fund and thus has been prejudiced by Davis failure to answer truthfully the medical history questionnaire. Under these circumstances, the court of appeal held that Nabors is entitled to have Davis workers compensation benefits forfeited. Up on claimant s application, we granted certiorari to review the correctnes s of the ruling of the court of appeal ordering the forfeiture of Davis rig ht to receive 4 workers compensation benefits. Nabors Drilling USA v. Davis, 03-0136 (La. 4/4/03), 840 So.2d 1209. LAW AND DISCUSSION In order to encourage the employment of phys ically handicapped employees who have a permanent, partial disability by protecting emp lo yers ... from excess liability for workers compen sation for disability [which may result] when a subsequent injury to such an employee merges with his preexisting p ermanent physical disability to cause a greater disability than would have resulted from the subsequent injury alone, the legislature created the Second Injury Fund. LSA-R.S. 23:1371(A). An emp lo y er who knowingly employs or knowingly retains in his employment an emp loyee who suffers from a permanent partial disability as defined by the statute is entitled to be reimbursed from the fund if that employee incurs a sub s eq u en t in jury arising out of and in the course of his employment resulting in liability for disability due to the merger of the subsequent injury with the p reexis ting permanent partial disability. LSA-R.S. 23:1378(A)(1). In order to assist the employer in meetin g it s s tatutory burden of establishing that it knowingly hired a wo rker with a preexisting permanent partial disability so as to qualify for reimbursemen t from the second injury fund, LSA-R.S. 23:1208.1 permits the employ er to obtain medical information from an employee or job applicant concerning preexisting conditions. The same statute that permit s t h is inquiry also states that the employee s failure to answer the employer s inquiry truthfully shall result in the forfeiture of workers compensation benefits provided certain enumerated circumstances are met. Louisiana Revised Statute 23:1208.1 states: No t h in g in this Title shall prohibit an employer from inquirin g about previous injuries, disabilities , o r other medical conditions and the employee shall answer truthfully; failu re t o answer truthfully shall result 5 in the employee s forfeiture of benefits under this Chap t er, provided said failure to answer directly relates to the medical condition for which a claim fo r b en efits is made or affects the employer s ability to receive reimbursement from the second injury fu n d. This Section shall not be enforceable unless the written form on which the inquiries about previous med ical conditions are made contains a notice advising the employee that his failure to answer truthfully may result in his forfeit u re of worker s compensation benefits under R.S. 23:1208.1. Such notice shall be prominently displayed in bold faced b lo ck lettering of no less than ten point type. [Emphasis added.] Forfeiture is a harsh remed y ; t h erefore, statutory forfeiture provisions such as LSA-R.S. 23:1208.1 must be strictly construed. Wise v. J.E. Meri t Constructors, Inc., 97-0684 (La. 1/21/98), 707 So.2d 1214, 1218. By its express terms, LSA-R.S. 23:1208.1 provides for forfeiture under t h ree circumstances. There must be (1) an untru t h ful statement; (2) prejudice to the employer; and (3) compliance with the notice requirements of t h e statute. Id., citing Resweber v. Haroil Const. Co., 942708, 94-3138 (La. 9/5/95), 660 So.2d 7. The employer has the burden of pro v ing each o f t h e elements required by the statute. Wise, 707 So.2d at 1218. The lack of any one of the elements is fatal to the emplo y er s av o idance of liability under the statute. Id. As we noted in Wise, 707 So.2d at 1219, untruthful answers alo n e do not resu lt in t h e forfeiture of benefits under LSA-R.S. 23:1208.1. The employer must also prove t h at it provided the employee with notice comporting with the dictates of the statute.1 Notice is not an issue in this case. In addition to t he notice requirement, the legislature has decided to specifically impose a requirement that the untruthful statement concerning a prior injury will result in forfeiture of benefits only when t h e fals e s tatement causes prejudice to the We address the notice requirement of LSA-R.S. 23:1208.1 in a separate opinion issued this date, S tiner v. Antoni s Italian Café, 03-0209 (La. 10/21/03), ___ So.2d ___. 1 6 employer. Louisiana Revised Statute 23:1208.1 states: forfeiture only occurs provided said failure t o an s wer directly relates to the medical condition for which a claim for benefits is made or affects the employer s ability to receive reimbursement from t he second injury fund. See Resweber, 660 So.2d at 16. This proviso strikes a careful balance. It reflect s the legislature s recognition of the harshness of the forfeiture penalty and attempts to ameliorate the harshness o f that penalty for the individual who is simply in the position of trying to obtain or maintain gainful employment, while at the same time preserving the goal of t h e s eco n d injury fund, which is to enhance employment opportunities for those wh o h av e been previously disabled. Thus, it is not every u n t ru t h ful statement on a medical history questionnaire that will result in the forfeiture of workers compensat io n benefits for a subs eq u en t work-related injury. It is only those statements that rise to the level of meet ing the statutory proviso of LSA-R.S. 23:1208.1 that will subject the emp lo y ee to forfeiture.2 The prejudice that must be incurred by the employer for forfeiture to apply is specifically defined by the statute. The un t ru thful statement must directly relate[] The notice and prejudice requirements of LSA-R.S. 23:1208.1 are to be contrasted with the requirements of the other anti-fraud statute in the Louisiana Workers Compensation Act, LSA-R.S. 23:1208. As we discussed in detail in Resweber, supra, while both LSA-R.S. 23:1208 and 1208.1 are anti-fraud enactments aimed at curtailing abuses in the workers compensation system, the statutes serve separate purposes and apply to different situations. LSA-R.S. 23:1208 applies to any false statement or misrepresentation, including one concerning a prior injury, made specifically for the purpose of obtaining workers compensation benefits, and therefore generally becomes applicable at the time of an employee s accident or claim. It contains no notice or prejudice requirement. LSAR.S. 23:1208.1, on the other hand, applies to employment-related questioning of an employee or prospective employee, by an employer, concerning a prior injury, when there is no pendingworkers compensation claim. The statute results in the forfeiture of a claimant s workers compensation benefits when that claimant makes false statements concerning a prior injury. For LSA-R.S. 23:1208.1 to be enforceable, there must be notice to the employee in compliance with the statute and prejudice to the employer. Resweber, 660 So.2d 7. In enacting separate anti-fraud statutes, the legislature deliberately elected to treat the two types of falsehoods differently. That difference must be respected. Had the legislature intended that benefits terminate under LSA-R.S. 23:1208.1 based on the untruthful response alone, it could have so provided. It did not. 2 7 to the medical condition for which a claim for benefits is made, or it must affect[] the employer s ability to receive reimbursement from the second injury fund. LSAR.S. 23:1208.1. The first prong of the prejudice tes t - t h at t he employee s untruthful answer directly relate to the medical condition that is the subject of the claim - is not at issue in this case. The parties do not contend, nor was any evidence submitted to establish, that Davis back injury was inevitable or very likely t o o ccur because of the presence of the preexisting s h o u ld er condition.3 See, Wise, 707 So.2d at 1220, wherein the directly relates prong of the prejudice requirement is more thoroughly discussed. It is the second prong of the prejudice to the employer test that is at is s u e in this case. This second prong requires that the employee s answer to the employer s medical history ques tionnaire affect[] the employer s ability to receive reimbursement from the second injury fund. LSA-R.S. 23:1208.1. To determin e t he effect on the employer s right to collect from the second injury fund, we must evaluate LSA-R.S. 23:1378(A) which provides that an employer shall be reimbursed from the second injury fund when the emplo yer knowingly employs or knowingly retains in his employment an employee who has a permanent partial disability, as defined by the statute. However, reimb u rs ement is limited to those situations where the permanen t p artial disability merges with a subsequent injury to cause a greater disability than would have resulted from t h e s u bsequent injury alone. LSA-R.S. 23:1371(A). We note, rather than refusing to work due to a prior disability, this individual, instead, made an effort to become gainfully employed. His untruthful statement arose out of an attempt to return to the work place. Ultimately, it was not his shoulder which failed him, but rather his back. There was no proof submitted to establish the prior shoulder injury caused the back injury. There was no proof submitted to establish his untruthful statement on the questionnaire was made specifically for the purpose of obtaining workers compensation benefits. 3 8 As we explained in Wise, supra, an employer s right to reimbursement is not automatic. The employer is not en t it led to reimbursement from the second injury fu nd merely because an employee with a pre-existing disability is subseq u en t ly injured. The employer has the burden of proving each element entitling him to reimbursement. Wise, 707 So.2d at 1220, citing Commercial Union Insurance Co. v. Workers Compensation Second Injury Board, 94-1202 (La.App. 3 Cir. 3/1/95), 651 So.2d 933. Thus, to be reimbursed from t h e s eco nd injury fund, an emp lo y er must prove three elements. Id. First, the employer must prove that t h e employee had a permanent p artial disability satisfying the requirements of LSA-R.S. 23:1378(F), i.e. that the employee s preexisting co n dition is of such seriousness as to constitute a hindrance or obstacle to obtaining employment or to obtaining reemp lo y ment if the employee should become unemployed. Second, the employer must prove that he had actual knowledge of the employee s permanent partial disability before the occurrence of the injury forming the basis of the compensation claim. LSA-R.S. 23:1378(A)(4); Chandler Parts and Service, Inc. v. Louisiana Workers Compensation Second Injury Board, 576 So.2d 1133 (La.App. 3 Cir.), writ denied, 580 So.2d 383 (La. 1991). Finally, the employer must p ro v e t h at the permanent partial disability merged with the injury to produce a greater disab ility. LSA-R.S. 23:1371(A); LSA-R.S. 23:1378(A); Wise, 707 So.2d at 1220. In the in s t an t case, Nabors argues that its rights were prejudiced because Davis failed to disclose the prior shoulder surgery and that non-disclosure deprived Nabors of knowledge and thus the opportunity to seek reimbursemen t from the second injury fund. In o rd er to prevail in this contention, it was incumbent upon Nabors to prove that but for Davis non-disclosure, it wo u ld have been entitled to 9 receiv e reimbursement from the second injury fund.4 In this regard, Nabors was required to prove that Davis had a p erman en t partial disability satisfying the requirements of LSA-R.S. 23:1378(F), and that this permanent partial disability LSA-R.S. 23:1208.1 is very clear in its requirement that forfeiture occur only in cases in which the non-disclosure and/or untruthful statement results in prejudice to the employer. As indicated, for an employer to be entitled to reimbursement from the second injury fund, it must prove the existence of three elements: (1) a preexisting permanent partial disability that is serious enough to hinder employment; (2) prior actual knowledge thereof; and (3) the merger between the preexisting disability and the subsequent injury. LSA-R.S. 23:1371(A) and (C); LSA-R.S. 23:1378(A). The absence of any one of the three elements is fatal to the employer s claim. Wise, 707 So.2d at 1220. While lack of prior actual knowledge is one of the three elements that the employer must prove, the lack of prior knowledge that inevitably flows from the employee s misrepresentation and/or nondisclosure is only prejudicial to the employer s right to seek second injury fund reimbursement if the emp loy er can prove that absent the lack of prior actual knowledge, it would have received reimbursement from the second injury fund. In other words, there is no prejudice from the lack of actual prior knowledge unless the employer can establish that the other two elements required for reimbursement (a permanent partial disability and the merger of that disability with the subsequent injury) are satisfied. Consequently, it is not enough for the employer merely to prove that the employee s untruthful statement or non-disclosure deprived him of prior actual knowledge. The employer must also prove the other two elements required for second injury fund reimbursement because it is only when these two elements are proved that the absence of the third element, prior actual knowledge, becomes consequential. Any other interpretation of the statutory scheme would render the proviso in LSA-R.S. 23:1208.1 -- which reads: provided said failure to answer directly relates to the medical condition for which a claim for benefits is made or affects the employer s ability to receive reimbursement from the second injury fund (emphasis added) -- superfluous and meaningless, a result we cannot condone (since in every case involving an untruthful response to a medical history questionnaire there would always be an impact on the employer s knowledge of the pre-existing disability and no need to ever resort to the language of the proviso). See, Barrilleaux v. NPC, Inc., 98-0728 (La.App. 1 Cir. 4/1/99), 730 So.2d 1062, 1064-1065, writ denied, 99-1002 (La. 5/28/99), 743 So.2d 672 ( When interpreting a law, the court should give it the meaning the lawmaker intended. It will not be presumed that the legislature intended for any part or provision of the law to be meaningless or useless. It is presumed that every word, sentence, or provision in the law was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were used. The meaning of a statute is to be interpreted by looking to all the sections taken together so that no section, clause, sentence, or word becomes superfluous or meaningless. ) (citations omitted). Although we in no manner condone Davis untruthful response on the medical history questionnaire, we note the legislature in its wisdom chose a practical as opposed to a moralistic approach. While LSA-R.S. 23:1208.1 commands truthfulness, an employee is not sanctioned with the harsh punishment of forfeiture unless the untruthful statement prejudices the employer. Untruth must be coupled with prejudice to equate to forfeiture. Unquestionably, Davis untruthfulness would be punished, if the employer had been prejudiced. Essentially, the legislature adopted the playground basketball adage: no harm, no foul. As noted by Cicero, the Roman statesman and philosopher, Our civil laws naturally cannot handle suppression of the facts in all its forms. M .T. CICERO, SELECTED WORKS 183 (M ichael Grant trans., Penquin Books 1965) ( 1960). The law was never meant to address each untruth, every exaggeration, all puffery. Based on practical considerations and to preserve personal liberty, the law cannot dictate all moral virtues. 4 10 merg ed with the subsequent back injury to produce a greater disability. LSA-R.S. 23:1371(A) and (C). Neither court below had difficulty concluding that Davis preexisting s h o u ld er condition co n s t it uted a permanent partial disability within the meaning of LSA-R.S. 23:1378(F). However, the lower courts differed in their conclusions with respect to the issue of merger. The workers compensation judge ruled that the evidence introduced by Nabors was not sufficien t t o p ro ve a merger between Davis shoulder disability and his subsequent back injury. The court of appeal rev ers ed, finding a sufficient merger between Davis prior and su bsequent injuries to satisfy the requirements of LSA-R.S. 23:1371(C)(2). We review the fact ual conclusions of the workers compensation ju d g e, in cluding those relating to the sufficiency of the ev id ence, for manifest error. Ambrose v. New Orleans Police Dept. Ambulance Service, 93-3099, 93-3110, 93-3112 (La. 7/5/94), 639 So.2d 216, 221; Alexander v. Pellerin Marble & Granite, 93-1698 (La. 1/14/94), 630 So.2d 706. One of the key elements for estab lis h in g second injury fund reimbursement is pro o f t h at the employee suffered from a preexisting permanent partial disability. A permanent partial disability is defined in LSA-R.S. 23:1378(F) as follows: As used in this Part, permanent partial disability means any permanent cond it io n , whether congenital or due to injury or disease, of such seriousness as to constitute a hindran ce or obstacle to obtaining employment or to obtain in g reemployment if the employee should become unemployed. Subsection F of LSA-R.S. 23:1378 goes on to provide for a presumption of permanen t p art ial disability when the disease or preexisting condition is one of thirty conditions enumerated in the statute. A rotator cuff injury is not included within this list. Although not listed as one o f t h e enumerated conditions presumptively considered to be a p reexisting permanent partial disability under LSA-R.S. 11 23:1378(F), a medical condition may still be proved in court to be a perman en t p artial disability. King v. Grand Cove Nursing Home, 93-779 (La.App. 3 Cir. 3/9/94), 640 So.2d 348, 351, writ denied, 94-0865 (La. 5/13/94), 641 So.2d 204. As noted above, the lower courts h ad no difficulty in concluding that Davis preexisting shoulder injury constitutes a permanent p art ial disability within the meaning of LSA-R.S. 23:1378(F), u n aid ed by the statutory presumption. That conclusion is not clearly wrong, but is, in fact , amply supported by the record evidence. The medical record s of Dr. Cobb, the orthopedist who performed Davis rotator cuff surgery, reflect that followin g his surgery, Davis was cautioned against returning to wo rk on the rigs. Dr. Gidman, an orthopedist retained to complete a functional disability ev aluation of Davis, opined that [e]ven though he demonstrated the ability to work at a heavy level both isometrically and dynamically, because of the extensive natu re o f t h e surgery to his shoulder and the fact that the rotation cuff, although not torn ... did show some fraying and degeneration, [Dav is ] should limit his activities with the right upper extremity to medium level activity. Dr. Gidman assigned Davis a 10% impairment of the upper extremity, o r a 6% impairment of the whole person. The medical records of Dr. Cobb and Dr. Gidman are sufficient to establish the exis t en ce o f a permanent partial disability. Both physicians issued reports cautioning Davis against return in g to the very work he pursued with Nabors, a job that required repetitive h eav y lifting. The impairment rating assigned by Dr. Gidman - 10% of the upper extremity or 6% of the whole person - coupled with the res trictions against heavy lifting issued by Davis physicians, constitute evidence o f a permanent condition of such seriousness as to constitute a h in d ran ce or obstacle 12 to obtaining employment in the oilfield, or in any profession requiring h eavy manual labor. Nabors thus met it s burden of proving that Davis had a preexisting permanent partial disability within the meaning of LSA-R.S. 23:1378(F). Having proved that Davis suffered from a preexisting permanent partial disability, it was nonetheless incumbent upon Nab o rs t o also establish that Davis permanent partial disability merged with his subsequent back injury to cause a greater disability than wo u ld h ave resulted from the subsequent injury alone. LSAR.S. 23:1371(A). Not every subsequent injury to a previously d is abled employee will entitle an employer to seek second injury fu n d reimbursement. There must be a merger of the prior disability and subsequent injury , as that term is defined by statute. Acco rd in g t o LSA-R.S. 23:1371(C), the merger of an injury with a preexisting permanent partial disability for purposes of second injury fund reimbursement is limited to the following: (1) The subsequent injury wo u ld not have occurred but for the preexisting permanent partial disability; or (2) The disability resulting from the subsequen t injury in conjunction with the preexisting permanent partial disability is materially and substantially greater than that which would have resulted had t h e preexisting permanent partial disability not b een present, and the employer has been required to pay and has p aid co mpensation for that greater disability. The use of the word merger in this context is somewhat of a mis n o mer, as the statutory definition of the term applies to situations not within the ordinary mean in g of the word merger. 13 W EX S. M ALONE & H. A LSTON JOHNSON, III, LOUISIA N A CIVIL LAW TREATISE: W ORKERS COMPENSATION LAW AND PRACTICE § 234 at 518 (2002). 13 As defined by LSA-R.S. 23:1371(C), merger has two components. The first, commonly known as but fo r merger ( the subsequent injury would not have occurred but for the preexisting permanent partial disability ), is not at issue in this case.5 The second defin it ion requires a two prong showing: (1) the disability resulting from the conjunction of th e prior and subsequent injuries must be materially and substantially greater than that which would have resulted had there been no prior injury; and (2) the employer must h av e b een required to pay and must have actually p aid compensation for that greater disability. See, Fidelity & Casualty Company of New York v. State, Louisiana Workers Compensation Second Injury Board, 94-0432 (La.App. 1 Cir. 12/22/94), 648 So.2d 1054, 1055, writ d en ied , 950554 (La. 4/21/95), 653 So.2d 570. In t h e in s tant case, Nabors attempted to meet its burden of proving statutory merger by introducing into evidence a series of letters between co u n s el for Nabors and Dr. Cobb, Davis treating ph y s ician . In the first letter, dated May 10, 2001, counsel for Nabors requested Dr. Cobb s opinion regarding whether as a res u lt of having had t h e p rior shoulder surgery Mr. Davis will have a greater disability as a result of a combination of the shoulder and the lumbar injury than he would have had solely fro m the lumbar injury alone. Dr. Cobb responded by letter dated June 12, 2001, as follows: It always seems a bit confusing to me regarding the Seco n d An example of this type of merger can be found in the employee who suffers from arteriosclerosis, a permanent partial disability under LSA-R.S. 23:1378(F), and who subsequently sustains a heart attack on the job. Due to his underlying arteriosclerosis, he does not recover as would a normal worker and is in fact instructed to terminate employment because of the combination of the arteriosclerosis and the heart attack. The subsequent injury (heart attack) would probably not have occurred but for the preexisting permanent partial disability (arteriosclerosis). 13 M ALONE & JOHNSON, § 234 at 517. Another example can be fashioned from the facts of this matter. Suppose the claimant had re-injured his shoulder as opposed to injuring his back. The employer may have been able to establish but for the prior shoulder injury, a re-injury to the shoulder would not have occurred. 5 14 In ju ry Fund, but based on what I understand from your correspondence, if he has a greater disability res ulting from a combination of the shoulder and lumbar injuries t han he would have had simply from the lumbar, I would agree that this p at ien t would meet the criteria for reimbursement from the Second Injury Fund. In a letter dated June 25, 2001, counsel for Nabors attempted t o clarify Dr. Cobb s response. On July 26, 2001, Dr. Cobb responded by letter, stating: I ... would certainly agree that he would have greater disabilit y with the combined shoulder injury and lumbar injury. In denying Nabors request for forfeiture, the workers comp en s ation judge remarked: While Dr. Cobb s letter establishes that t h ere is a greater disability b ecause there are two disabilities, it does not address any merger between the two, and I think that needs to be present. And therefore, I am denying the 1208.1 forfeiture request. On review, the court of appeal reversed, finding clear error in the workers compensation judge s factual conclusions. Relying on Southland Corp. v. State, Workers Compensation, Second Injury B oard, 593 So.2d 956 (La.App. 4 Cir. 1992), t h e co u rt of appeal ruled: [I]n the instant case, common sense indicates that Davis, who already has a 6% impairmen t rating to the body as a whole, is materially and substantially more disabled with the hern iated disc added to his already impaired bod y . Further, ... Dr. Cobb stated that Davis would have a greater disability with the combined injuries. There is n o contrary evidence in the record. Thus, the evidence does establish t h at there exists a sufficient merger between Davis subsequent and prior in juries to satisfy the requirements of LSA-R.S. 23:1371(C)(2). Nabors, 833 So.2d at 537. Relying solely on the correspondence from Dr. Cobb opining that Davis h as a greater disability with the combined should er in ju ry and lumbar injury, the court 15 of appeal determined that the statutory definition of merger embodied in LSA-R.S. 23:1371(C)(2) had been s atisfied. We disagree. Although not adopting the reasoning of the workers compensation judge, we find that her determination that Nabors failed to satisfy its b urden of proving merger within the meaning of LSA-R.S. 23:1371 is correct. We begin our analysis , as we must, with the language of the statute at issue. Dumas v. State, Department of Culture, Recreation & Tourism, 2002-0563 (La. 10/15/02), 828 So.2d 530, 536. Mindful of the principle t h at t h e t erm merger should b e liberally construed to effectuate the purpose of the second injury fund, we cannot ignore the express language ad o p ted by the legislature in drafting the statute. See, LSA-C.C. art. 9; 13 M ALONE & JOHNSON, § 234 at 518, citing Southern Casualty Insurance Company v. Louisiana Workmen s Compensation Second Injury Board, 478 So.2d 573 (La.App. 2 Cir. 1985). In this connection we note that u n d er LSA-R.S. 23:1371(C)(2), a merger occurs not when the disability resulting from the subsequent injury in co n junction with the preexisting permanent partial is greater t h an t h at which would have resulted had the preexisting permanent p artial disability not been present, but when the disability is materially and substan t ially greater. Two adverbs, materially and substantially, modify the adjective greater. Consequently, although two disabling injuries added toget h er will in most instances produce a greater disability, it is not enough under the statute simply to ad d u p the employee s injuries. The statute contemplates a showing of more. Although the prior disability need not combine with the comp en sable injury in any special way, Southland Corp., 593 So.2d at 958, 16 it must substantially augment the disability resulting from the compensable injury. See, 5 LARSON S W ORKERS COM PENSATION LAW § 91.02[7] (2003).6 As noted above, the definition of merg er embodied in LSA-R.S. 23:1371(C)(2) contains a seco n d p ro n g : a showing that the employer has been required to pay and has paid compensation for that g reat er disability. In other wo rds, in addition to establishing that the employee has sustained a materially an d substantially greater disability, t h e statute expressly requires a showing by the employer seeking reimbursement that the benefits paid are greater in amount because of the preexisting disability. Fidelity & Casualty Company of New York, 648 So.2d at 1055. Without the employer being required to pay and actually paying compensation for the combined, greater disability, merger is not recognized. Id. at 1056. The fact that LSA-23:1371(C)(2) requires a two-prong showing is entirely consistent with th e s t at ed goal of the second injury fund, which is to encourage the employment of handicapped in dividuals by relieving the employer of the excess compensation burden that may result when t h at h an d icapped individual sustains a subsequent work-related injury. LSA-R.S. 23:1371(A). Essential to achieving this goal is a finding that the employer in fact has a greater compensation burden as a result of the employee s preexis t ing disability. That is accomplished by a showing under LSA-R.S. 23:1371(C)(2) that the employee has a materially and sub s t an t ially greater disability because of the preexisting disability and (in the second pro n g o f As the court commented in S outhern Casualty Insurance Company, 478 So.2d at 577: We can p erceive of situations where the previous injury would not combine with or merge with a subsequent injury to create a greater disability, such as is possible in the hypothesis ... of the worker with the five percent hand injury and the fifty percent back injury. If these injuries in combination do not increase the worker s disability to a materially and substantially greater degree, the statute requirements for merger have not been fulfilled. Each case must be examined in the context of its own facts to determine whether a merger of the two injuries has occurred. 6 17 the merger test) that the employer has been required to pay, and has paid , fo r that greater disability. The key, t h en , fo r demonstrating a merger, as that term is limited and defined in LSA-R.S. 23:1371(C)(2), is a showing that the previously disabled employee who suffers a subsequent work-related injury h as sustained a materially and substantially greater disability than that which would have resulted had the preexisting disability not been present, for which materially and substantially greater disability the employer will bear an increased compensation b urden. This definition of merg er excludes, for example, the situation in which the subsequent injury is of such severity that it would account for total permanent disability by itself, quite apart from any contribut io n b y the preexisting disability. 13 M ALONE & JOHNSON, § 234 at 518 (2002); 5 LARSON S W O RK ERS COM PENSATION LAW § 91.02[8]. In such a situation, the employer does not pay any more for the d is ab ilit y resulting from the combin at ion of the preexisting disability and the subsequent injury than it would had the prior disability not existed. It in clu d es , however, by way of further example, a situation such as that presented in S outhern Casualty Insurance Company, supra, where an employee s back injury combined with his mental retardation to render the employee totally and permanently disabled. In that case, the court of appeal correctly reasoned: W e h av e little difficulty within the context of these facts in finding that the previous statutorily defined permanent partial disability, mental retardation, merged with the s u bsequent back injury to create a substantially greater disability. Whereas the back in ju ry without the mental retard ation, or the mental retardation without the back injury would not necessarily preclude Mr. Smith from obtaining emp lo y ment, the superimposition of one disability upon the other renders Mr. Smith virtually unemployable. Such a construction of the term merger affects the most usual signification of the word. We therefore hold that the two injuries have merged within the meaning of the statute. 18 Southern Casualty Insurance Company, 478 So.2d at 577. See also, Willamette Industries, Inc. v. State Workers Compensati on S econd Injury Bd., 595 So.2d 1206, 1209 (La.App. 3 Cir. 1992), writ denied, 600 So.2d 608 (La. 1992) (wherein the court of appeal conclud ed t hat an employee s ankle injury merged with his preexisting elbow injury, reasoning: The ankle injury without the preexisting left upper extremity disability wo uld not have preclude[d] Rodisch from obtaining employment. ... However, a combination of th ese injuries prevents Rodisch from participating in gainful employment. ); Southland Corp., 593 So.2d at 958 (wherein the court of app eal found a merger between claimant s herniated disc and preexisting disability - a single clubbed hand - on testimony from claimant s phys ician that claimant was more disabled with th e back added to his previous problem which makes it more difficult for him to get a job, to work at some job in a meaningful way. ). In each of these aforementioned cases, there was a showing of a materially an d s ubstantially greater disability which resulted in an increased compensation burden for the employer, i.e., a showing that the employee could have continued to work with either injury alone, but the combin at io n of the two injuries rendered him unemployable. While each case must be considered on its particular facts, a review of the ev idence in this case reveals that no comparable showing was made by Nabors. The court of appeal based its ruling exclusively o n t h e letter from Dr. Cobb stating: I ... would certainly agree that [Davis] would have greater disab ilit y with the combined shoulder injury and lumbar injury. While Dr. Cobb s letter d o es in d icate that Davis will have a greater disability as a result of the combined injuries, it does not establish the extent of that great er disability. Neither does it indicate that this 19 greater disability will result in an increased compensation burden for Nab o rs , 7 or that Nabors will be required to pay any additional sums for the treatment of Davis back injury as a result of his preexisting shoulder dis ab ilit y t han it would have been required to pay had t h e s h o ulder disability not existed. See, e.g., Fidelity & Casualty Company of New York, supra, (evidence did not establish that preexisting foot disability merged with subsequent neck and back injury where physician testified that preexisting disabilit y did not affect his treatment of claimant nor did it cause employer to incur any additional medical expenses); See also, City of Jenning s v. Louisiana Workers Compensation Second Injury Board, 96-945 (La.A p p. 3 Cir. 2/5/97), 689 So.2d 618, 620-621 (evidence did n o t es tablish that preexisting diabetes merged with subseq u en t back injury where although testimony indicated there was a greater disability, testimony also indicated that diabetes was under control and did not affect employee s t reat men t or recovery). Absent such evidence, the record does not demonstrate a merg er o f Davis back injury with his preexisting shoulder disability. Therefore, contrary to the co u rt of appeal s determination, Nabors failed to establish that it would have been entitled to second injury fund reimbursement and that Davis failure to answer truthfully the medical history questionnaire adversely impacts its abilit y to receive reimbursement. Because Nabors has failed to prove each element required by LSA-R.S. 23:1208.1, forfeiture under that statute is not warranted. CONCLUSION In fact, the record does not reveal the full extent of D avis disability or of Nabors resulting compensation responsibility. Dr. Cobb s records reflect only that Davis has been diagnosed with a herniated disc at the L5-S1 level, that surgery has been recommended, and that Dr. Cobb has talked to [Davis] about the implications of him returning to the oil field, that he would have to get something lighter. 7 20 Th e legislation is difficult to decipher. To reach a final resolution numerous interrelated provisions must b e ev alu ated. Each provision has various and sundry p rongs/components/elements which in turn must be considered. Ultimately , t h e diligence employed in evaluating these various provisions results in the determination that an untruthful statement on a medical history questionnaire does not result in forfeiture of benefits unless the employer is prejudiced in its ab ilit y to obtain second injury fund reimbursement by virtue of a merger between the orig in al and subsequent injury or unless the subsequent injury direct ly relates to the pre-existing injury. Under th e p articular circumstances of this case, the court of appeal clearly erred in reversing the judgment of the workers compensation judge and in ordering the forfeiture of Davis workers compensation benefits. The judgment of the court of appeal is therefore reversed and the judgment of the workers comp en s ation judge dismissing Nabors demand seeking to terminate benefits pursuant to LSA-R.S. 23:1208.1 is hereby reinstated. REVERSED. 21
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