SHIRLEY STINER v. ANTONI'S ITALIAN CAFE'
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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 -0209 SHIRLEY STINER v. ANTONI'S ITALIAN CAFE' (Office of Workers Compensation, District No. 4) For the foregoing reasons, the judgment of the workers' compensation judge granting claimant's motion for summary judgment and the opinion of the court of appeal affirming that judgment are reversed. The matter is remanded to the office of Workers' Compensation, District 4, for further review to determine whether claimant's right to workers' compensation benefits should be denied. REVERSED; REMANDED. 10/21/03 SUPREME COURT OF LOUISIANA 03-C-0209 SHIRLEY STINER versus ANTONI S ITALIAN CAFà ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, THE OFFICE OF WORKERS COMPENSATION, DISTRICT NO. 4 WEIMER, Justice The limited issue befo re t h is court is whether use of the word denial in a s tatutorily mandated notice contained on a medical history questionnaire is sufficien t to advise a potential employee that failure to truthfu lly answer the questions may result in forfeiture of any right to future workers compensatio n benefits. A writ of certiorari was granted to resolve a split in the circuits. For reasons that follow, we conclude u s e o f t he word denial provides sufficient notice to an employee that untruthful an s wers on the medical history questionnaire may result in forfeiture of future benefits. The decisions of the lower courts grant in g and affirming claimant s motion for summary judgment are reversed. The mat t er is remanded to the Office of Workers Compensation, District 4, for further proceedings in conformity with the views expressed in this opinion to determine whether claimant has forfeited the right to benefits.1 For a discussion of issues related to forfeiture of benefits by employees who untruthfully answer a medical history questionnaire, see Nabors Drilling US A v. David Davis, 03-0136 (La. 10/21/03), ___ So.2d ___, decided this date. 1 FACTS AND PROCEDURAL BACKGROUND Shirley Stiner was employed by Antoni s Italian Café as a cook and kitchen helper. While cleaning a range top hood on July 21, 2001, she fell from a ladder sustaining injury to h er back, neck and stomach. Indemnity benefits and medical treatment were provided until September 4, 2001, at which time the employer terminated benefits claiming Ms. Stiner provided false information regardin g p revious injuries on a Medical History Questionnaire completed o n Oct o ber 1, 1999. The employer based its decision on the provisions of LSA-R.S. 23:1208.1 which p ro v ide for forfeiture of benefits if an employee fails to truthfully answer a medical questionnaire regarding prev ious injuries, disabilities, or other medical conditions and such untruthfulness causes prejudice to the employer. In response to the termin at io n o f benefits, Ms. Stiner filed a motion for summary judgment asserting that language used in the questionnaire failed to satisfy the notice requiremen t s o f the statute thus rendering the form invalid. The motion for summary judgment was based on the decision rendered in Louisiana Workers Compens ati on Corporation v. Grayson, 99-230 (La.App. 3 Cir. 10/13/99), 746 So.2d 121. Following a hearing on the motion for summary judgment, the wo rkers co mpensation judge granted summary judgment in favor of the employ ee in conformity with the holding in Grayson. Because the workers compensation judge d etermined that the notice was inadequate, issues as to whether the allegedly untruthful answer(s) directly related to the medical condition for which a claim for benefits was mad e or affected the employer s ability to receive reimbursement from t h e second injury fund were not considered. employer appealed. 2 See LSA-R.S. 23:1208.1. Th e On appeal, the third circuit relied on decisions rendered in Grayson, supra, and City of Eunice v. Carrier, 01-1184, (La.A p p . 3 Cir. 2/20/02), 821 So.2d 3. In Grayson, the court examined the notice requirement of the statute an d h eld t h at use of the t erm d en ial instead of the term forfeiture in the notice did not adequately place an employee on notice that loss of compensation benefits may be imposed as a penalty for a false statement on the medial history questionnaire. Because the court held the notice deficient, an essential element o f the statute had not been met. Grayson, 99-230 at 6, 746 So.2d at 124. Therefore, the court held the wording o f the n o t ice used by the employer in this case did not fulfill the notice requirements of LSA-R.S. 23:1208.1 and did not give Ms. Stiner t h e p roper notice required by statute. Stiner v. Antoni s Italian Café, 02-747 (La.App. 3 Cir. 12/18/02), 839 So.2d 80, 82. Additionally, the court noted t h at forfeiture is a harsh remedy and, citing City of Eunice v. Carrier, 01-1184 at 4, 821 So.2d at 7, held the statute mu s t b e strictly construed. Defendant, relying o n t h e case of Boh Bros. Construction Co. v. Price, 2000-2233 (La.App. 4 Cir. 8/29/01), 800 So.2d 898, writ denied, 01-2623 (La. 12/14/01), 804 So.2d 634, in which the Fourth Circuit court of appeal h eld t h at a notice using the word denial rather than forfeiture provided sufficient warning of the consequences for failure to answer questions truthfully, so ught a writ of certiorari with this court to resolve the split between the third and fourth circuits. This court gran t ed t he writ of certiorari. Stiner v. Antoni s Italian Café, 03-0209 (La. 4/4/03), 840 So. 1209. DISCUSSION 3 Prior decisions of the third and fourth circuit courts of appeal reached opposite results on the issue of whether us e o f t h e wo rd denial in the notice required pursuant t o LSA-R.S. 23:1208.1 was sufficient to warn an employee of the consequences of a failure t o t ruthfully answer a medical history questionnaire presented by the employer. The notice language at is s ue in Grayson read as follows: I certify that the above answers are true, and understan d t h at any false or misleading statements may be reason for denial of workers compensation benefits and/or termination of employment. Grayson, 99-230 at 5, 746 So.2d at 123. The workers co mpensation judge considered the definitions of denial and forfeiture. While acknowledging that the d is t in ction between the two may not seem great, the court fo u n d t he distinction to be quite significant in the context of the forfeiture provision. The court found a reasonable claimant would not view risk of denial of benefit s as an absolu t e bar to receipt of benefits. The third circuit court of appeal agreed and affirmed the judgment. The third circuit found th at the word forfeiture connotes a d es t ruction of a right and a taking away of property in connection with an illegal act. The court found forfeit u re implied serious legal consequences while denial did not. Grayson, 99-230 at 6, 746 So.2d at 124. Citing Wise v. J.E. Merit Constructors, Inc., 97-684 (La. 1/21/98), 707 So.2d 1214, for the proposition that statutory forfeiture must be s t rict ly construed, the court found use of denial in the notice required by LSA-R.S. 23:1208.1 was insufficient. Grayson, 99-230 at 6, 746 So.2d at 124. Th e fourth circuit court of appeal considered a similar notice in the cas e o f Boh Bros. Construction Co., which provided in bold-faced t y pe: I AM AWARE THAT FALSIFICATION OF ANY ANSWER WILL BE GROUNDS FOR MY 4 IMMEDIATE DISMISSAL AND MAY RESULT IN DENIAL OF W ORKERS COMPENSATION BENEFITS. 800 So.2d at 901-902. Boh Bros. Construction Co., 2000-2233 at 5, The workers compensation judge found Boh Brothers failed to establish that the worker violated the statute. The fourth circuit disagreed, fin d ing the employee had answered the questionnaire untruthfully. The court then examined th e n o t ice t o determine whether it complied with the statutory requirements. While ackn o wledging the distinct definitions of denial and forfeiture as well as their significance as outlined by the workers compensation judge and the court o f appeal in Grayson, the fourth circuit declined to adopt that interpretation because the court found n o indication the third circuit had considered the intended purpose of LSA-R.S. 23:1208.1 in arriving at its decision. Boh Bros. Construction Co., 2000-2233 at 9, 800 So.2d at 904. In Resweber v. Haroil Construction Company, 94-2708, 94-3138 (La. 9/5/95), 660 So .2d 7, t h is court considered the legislative history and intent of the anti-fraud provisions of the Louisiana Workers Co mpensation Act. 23:1208 and LSA-R.S.23:1208.1.2 LSA-R.S. This court noted that wh en LSA-R.S. 23:1208.1 was enacted in 1988, effective January 1, 1989, the statute did not contain a forfeiture provis ion.3 It merely granted an employer permission to inquire about In contrasting Sections 1208 and 1208.1, this court concluded that Section 1208 was clear and unambiguous as written and that the requirements for a Section 1208 forfeiture were a false statement or representation, wilfully made, for the purpose of obtaining or defeating any benefit or payment. The court found it clear from the legislative history t hat the legislature intended that any false statement or representation wilfully made for the purpose of obtaining benefits would result in forfeiture of those benefits. No notice is required for forfeiture under Section 1208. Resweber, 942708, 94-3138 at 7, 660 So.2d at 12. 2 3 LSA-R.S. 23:1208.1 as enacted in 1988 read as follows: Nothing in this Title shall prevent an employer from inquiring about previous worker s compensation claims paid to the employee while said individual was employed by a previous employer, and the employee shall answer truthfully. 5 previous workers compensation claims paid to an individual while employed by a previous employer. The statute co n clu d ed with the following statement: [T]he employee shall answer truthfully. However, the statute was amended in 1989, effect iv e Jan u ary 1, 1990, to include a forfeiture of benefits provision as well as a notice requirement. Resweber, 94-2708, 94-3138 at 8-9, 660 So.2d at 13. In Resweber, this court reasoned th at a notice provision was added because an employee completing a medical history questionnaire regarding prior medical history in connection with employment or at a time prior to an injury mig h t n o t be fu lly aware of the consequences of being less than truthful. In this regard, the court held the notice requirement was based on the timing of the statement and the context in which it [was] mad e. Res weber, 94-2708, 94-3138 at 10, 660 So.2d at 13. The court added: where the false statement is made at a time p rior to any workers compensation claim, and arises in a cont ext completely unrelated to workers compensation, an employee may not be aware of the full ramifications of giving a false statement and, accordingly, the legislature, in Section 1208.1, imposed a notice requirement in such a situat io n . Resweber, 94-2708, 94-3138 at 10, 660 So.2d at 13-14. Following the 1989 amendment, LSA-R.S. 23:1208.1 provides: Nothing in this Title s h all prohibit an employer from inquiring about previous in ju ries , disabilities, or other medical conditions and the employee shall answer t ru t h fully; failure to answer truthfully shall result in the employee's forfeiture of benefits under this Chapter, provided said failure to answer directly relates to the medical condition for which a claim for benefits is made or affects the emplo y er's ability to receive reimbursement from t h e second injury fund. 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 fo rfeiture of worker's compensation benefit s u n d er R.S. 23:1208.1. Such notice shall b e p rominently displayed in bold faced block lettering of no less than ten point type. 6 At issue in this matter is a determination of the adequacy of the notice provided to the claimant in the med ical q u estionnaire completed at the time she was employed by the defendant. The form completed by Ms. Stiner consisted of t h ree p ag es each of which contained a similar notice.4 The statute requires that the employee be given notice th at a failure to answer truthfully may result in a loss of benefits. Although the legislature d id n o t mandate specific language to be used in th e n o t ice, the statute does specify the manner in which the notice must be given. The print and point type to be u s ed fo r t h e notice is mandatory. The statute provides the notice shall be prominently displayed in bold One page entitled M EDICAL HISTORYQUESTIONNAIRE informed the prospective employee of the purpose of the inquiry into previous medical history and advised that the information gathered would be kept confidential in a separate medical file apart from the personnel file. Immediately above the line for the employee s name, date, social security number and signature appeared the following notice: 4 I FURTHER UNDERSTAND THAT THE FAILURE TO ANSWER TRUTHFULLY ANY OF THE MEDICAL QUESTIONS MAY RESULT IN A DENIAL OF ANY R IGHT I OR MY DEPENDENT(S) MAY HAVE TO WORKER S COMPENSATION BENEFITS, INCLUDING MEDICAL TREATMENT AND EXPENSES. IN ADDITION, ANY FALSE STATEMENTS ON THIS DOCUMENT IS [sic] GROUNDS FOR IMMEDIATE TERMINATION OR OTHERWISE APPROPRIATE DISCIPLINARY ACTION, PURSUANT TO LSA-R.S. 23:1208.1. A second page, also entitled M EDICAL HISTORY QUESTIONNAIRE, included a listing of 32 conditions for which the employee was to indicate YES or NO as to whether he/she currently had or previously suffered any of the conditions. A YES answer required further clarification as to the nature of the condition or injury, treatment received and the name of t he doctor providing the treatment. This page also contained a signature line for the employee as well as a notice which read as follows: PURSUANT TO LSA-R.S. 23:1208.1, THE FAILURE TO ANSWER TRUTHFULLY ANY OF THE QUESTIONS BELOW MAY RESULT IN A DENIAL OF ANY RIGHT YOU OR YOUR DEPENDENT(S) MAY HAVE TO WORKERS COMPENSATION BENEFITS, INCLUDING MEDICAL TREATMENT AND EXPENSES. A third page, also entitled M EDICAL HISTORY QUESTIONNAIRE, consisted of 9 questions followed by a notice which read as follows: PURSUANT TO LSA-R.S. 23:1208.1, I UNDERSTAND THAT THE FAILURE TO ANSWER TRUTHFULLY ANY OF THE ABOVE QUESTIONS MAY RESULT IN A DENIAL OF ANY R IGHT I OR MY DEPENDENT(S) MAY HAVE TO WORKER S COMPENSATION BENEFITS, INCLUDING MEDICAL TREATMENT & EXPENSES. I HAVE READ IN ENTIRETY AND FULLY UNDERSTAND THE ABOVE. The above was followed by a signature and date line which the employee signed and dated. 7 faced blo ck let t ering of no less than ten point type. (Emphasis added.) LSA-R.S. 23:1208.1. Use of the word shall is mandatory. LSA-R.S. 1:3. Conspicuously absent is a requirement that the notice cont ain any specific language. Although the word forfeiture appears in the statute, there is nothing within the statute which mandates its use. The legislature is fully cap ab le o f specifying the exact verbiage or the precise form which must be used to fulfill a notice requiremen t if it so chooses. See LSA-R.S. 22:1406(D)(1)(a)(ii).5 Because of a split in the circuits, this court is called upon to decide whether use of the word denial in th e n o t ice is sufficient to warn the employee of the consequences for untruthfulness. If we evaluate the words by reference to the dictionary,6 we note that both denial and forfeiture suggest negative consequences. Denial is defined as [a] refus al or rejection or the refusal of something requested or desired, a statement that something is not true . Forfeiture is defined as [t]he loss of a right, a privilege, or property because of a crime, breach of obligation, or neglect of duty; or lose or be deprived of [something] as a penalty for wrongdoing. BLACK S LAW DICTIONARY, 445, 661 (7th ed. 1999); T H E NEW OXFORD A M ERICAN DICTIONARY, 456, 664 (2001). Truthfulness is an ethical obligation; no law should b e n ecessary to command truthfulness. The law can appropriately prescribe the sanction for untruthfulness. 5 LSA-R.S. 22:1406(D)(1)(a)(ii) provides in pertinent part: After September 1, 1987, such rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance. Justice Robert Jackson said the dictionary is the last resort of the baffled judge. See Jordon v. DeGeorge, 341 U.S. 223, 234, 71 S.Ct. 703, 709, 95 L.Ed. 886 (1951). Dictionaries are a valuable source for determining the common and approved usage of words. Gregor v. Argenot Great Central Insurance Company, et al, 02-1138, p. 7 (La. 5/20/03), 851 So.2d 959, 964. 6 8 In its initial version, LSA-R.S. 23:1208.1 mandated truthfulness, but prescrib ed no penalty. Thereafter, the provision was amended and a penalty was prescribed. While a notice that tracks the language of the statute might be preferable, this court cannot hold th at s u ch language is mandatory because nothing in the statute mandates specific language. An employer is free to use the language of its choice in confecting the notice provided the consequences of the failure to answer truthfu lly are clear. Allowing an emp loyer to choose the qualifying language does not grant an employer licen se to use language which would confuse or befuddle an employee. Neither is it license to use some form of leg ales e t o ensnare an unsuspecting employee. We have carefully considered t h e o pinions of the third and fourth circuits and note the fact specific circumstances o f each case may have influenced the decisions as rendered by the respective courts. The claimant in Grayson h ad strained his back on a job in February 1996. Althoug h h e was treated by a physician who placed him on light duty status for a very brief period of time, he never missed work or filed a compensation claim. In connection with his employment by Vernon Movin g an d Storage, Grayson completed a second injury fund questionnaire on which he in dicated that he never had an injury or strain to his knee, back, or neck. Du rin g September 1997, he injured h is back in a work related accident and filed a workers compensation claim. The workers compensation judge fou n d Grayson provided false information on the form, but also found the notice on t h e fo rm s ig ned by Grayson deficient because it did not include the word forfeiture. Grayson, 99-230 at 4-5, 746 So.2d at 123. By contrast, the claimant in the Boh Bros. Construction Co. case failed to disclose an earlier neck in ju ry that required surgery and resulted in temporary partial 9 disability, a workers compensation claim, unemployment for two and a half years, and a successful tort claim. A dditionally, the claimant s testimony that he had been released to work when he applied for employment with Boh Bros. was co n t radicted by that of his treating ph y s ician . Under these circumstances, the court found claimant s failure to answer truthfully was significant and forfeiture was an appropriate remedy. The court held that use of denial in the notice was sufficient. Boh Bros. Construction Co., 2000-2233 at 11, 800 So.2d at 905. Because of the split in the circuits, we are required to focus on the language of the statu t e t o determine the adequacy of the notice and to provide guidance as to what constitutes proper notice. Claimant argues in this court that the statute is clear and unambigu o u s ; therefore, a resort to legislat iv e intent is wholly inappropriate. Claimant further suggests that the solemn expression of legislative will is circumvented b y allowing the use o f the word denial in the notice. According to the claimant, use of any word other than forfeiture fails to give the employee proper notice of the serious and severe consequences resulting from an u n t ru t hful answer on the medical history questionnaire. However, we find the decision of th e fo u rth circuit in Boh Bros. Construction Co. to be the b et t er reasoned approach. Absent legislatively mandated language, use of denial in the notice provides an employee with sufficient warning of the co n sequences of not answering in a truthful manner. The word denial is short, simple, concise, and sufficiently clear to put an employee o n notice that workers compensation benefits could be lost if the employee fails to an s wer the questionnaire truthfully and such untruthfulnes s cau s es prejudice to the employer. The form used in this case put the employee on notice that there were consequences in the nature 10 o f workers compensation benefits being denied, if the employee failed to answer truthfully. The employee was fu lly and adequately informed that a failure to answer truthfully could result in benefits being adversely impacted.7 The statute provides for forfeiture u n d er n arrow circumstances. There must be an untruthful statement which causes prejudice to t h e employer and compliance wit h t h e n otice requirements of the statute. Wise, 97-684 at 7, 707 So.2d at 1218. An employer has the burden of proving each elemen t . Failure to prove any one of the elements is fatal to the employer s avoidance of liability for benefits. Id. Because the wo rkers compensation judge granted the motion for summary judgment after deeming the notice inadequate, the employer was n ot called upon to establish whether an untruthful statement by the employee prejudiced the employer. Considering the ruling of this court, the mat t er mu s t be remanded to the Office of Workers Compensation, District 4, for a resolution of the other is sues to determine whether Shirley Stiner s benefits should be terminated. CONCLUSION We find that use of the word denial in the notice provided to Ms. Stiner was effective for purpos es o f the statute. For the foregoing reasons, the judgment of the workers compensation judge gran t ing claimant s motion for summary judgment and the opinion of the court of appeal affirming that judgment are reversed. The matter is remanded to the Office of Workers Compensation, District 4, for further review We note the notice provided not only specifically referenced the applicable statute, but also advised the employ ee on each and every page of the questionnaire that workers compensation benefits, including medical treatment and expenses, could be denied due to untruthful responses. In the context of completing an employment questionnaire, the fine line distinctions between forfeiture and denial would escape all but a grammarian armed with a dictionary. Whether due to a denial or a forfeiture, the ultimate result is the same benefits are not received. 7 11 t o d etermine whether claimant s right to workers compensation benefits should b e denied. REVERSED; REMANDED. 12
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