67 So. 3d 646
La. Ct. App.2011Background
- Ms. Faulkner worked for Better Services, Inc./Southern Snow; average weekly wage at 2008 employment was $360.
- She previously suffered a 2005 back injury with continued treatment and a 25-pound lifting restriction after return to work.
- In March 2008, Faulkner allegedly sustained a new back injury at work (March 19, 2008) while operating a bottling machine, reporting the accident to coworkers and seeking medical treatment.
- Defendants contested the 2008 accident and the related medical treatment, including questioning prior medical history and documentation.
- The WCJ awarded Faulkner temporary total disability benefits, medical and rehabilitation expenses, and attorney’s fees/penalties, which defendants appealed.
- Louisiana appellate court affirmed on merits but reversed the penalties and attorney’s fees awards for failure to timely pay benefits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Trooskin testimony | Faulkner allowed rebuttal to rebut misrepresentations. | Trooskin was barred as untimely rebuttal and new evidence. | Rebuttal testimony improperly admitted; prejudicial; require de novo consideration. |
| Exclusion of Rozas deposition | Deposition would supplement trial evidence. | Deposition improperly excluded for pretrial statement issues. | Deposition exclusion deemed irrelevant; records admitted; no reversible error. |
| Proof of a March 19, 2008 unwitnessed accident | Faulkner's testimony, corroborated by contemporaneous actions, established the accident. | Faulkner's evidence was insufficient and inconsistent. | Faulkner met the burden to prove a job accident occurred on March 19, 2008. |
| La.R.S. 23:1208 forfeiture for false statements | No willful false statements; memory issues and ongoing treatment explain inconsistencies. | Faulkner made false statements about prior medical treatment to obtain benefits. | Did not establish requisite willful false statements; no forfeiture. |
| Penalties and attorney’s fees under La.R.S. 23:1201 | Employer/insurer violated timely payment requirements; penalties warranted. | Dispute reasonably controverted; nonpayment justified by evidence. | Penalties and attorney’s fees reversed; claim reasonably controverted. |
Key Cases Cited
- Rosell v. ESCO, 549 So.2d 840 (La. 1989) (manifest error standard; de novo review when legal errors predominate)
- Evans v. Lungrin, 708 So.2d 731 (La. 1998) (independent de novo review when legal errors affect fact-finding)
- Lasha v. Olin Corp., 625 So.2d 1002 (La. 1993) (legal errors prejudicial; substantial rights protected)
- Hinchee v. Soloco, L.L.C., 971 So.2d 478 (La.App. 3 Cir. 2007) (rebuttal evidence; improper where used to introduce new matter)
- Ardoin v. Firestone Polymers, L.L.C., 56 So.3d 215 (La. 2011) (unwitnessed accident burden; late reporting undermines proof)
- Gibbs v. Delasandro Painting and Decorating, 868 So.2d 804 (La.App. 5 Cir. 2004) (forfeiture requires willful misrepresentation)
- Brown v. Texas-LA Cartage, Inc., 721 So.2d 885 (La. 1998) (reasonably controverted claim; nonfrivolous dispute)
- Sevin v. Greenbriar Nursing Home, 807 So.2d 1179 (La.App. 1 Cir. 2002) (evidence of inconsistent statements alone insufficient for 23:1208)