Bergeron v. Cajun Kwik Mart11/5/2003
PUBLISHED
AFFIRMED AS AMENDED.
Defendant, Cajun Kwik Mart, Inc., appeals a judgment of an Office of Workers' Compensation (OWC) judge reinstating Claimant's, Rita Bergeron's, benefits as of November 27, 2001, and awarding her $2,000.00 in penalties and $1,000.00 in attorney's fees for Defendant's failure to provide medical care. Claimant answered the appeal seeking additional attorney's fees. We affirm in part and amend in part the judgment of the OWC judge.
FACTS
The parties entered into the following stipulations: 1) Claimant was injured in the course and scope of her employment on February 26, 2000; 2) her average weekly wage was $194.34; 3) her correct compensation rate was $129.57 weekly; and 4) benefits were paid to Claimant through November 27, 2001.
The issues before the OWC judge were whether benefits should be continued beyond November 27, 2001, and whether Defendant had proven Claimant violated the provisions of La.R.S. 23:1208, thus forfeiting her right to benefits.
LAW AND DISCUSSION
On appeal, Defendant's only specification of error argues "that the Trial Court erred in its application of LSA-R.S. 23:1208. . . . when considering the specific deposition testimony of Rita Bergeron and the video tape evidence showing Rita Bergeron's activities."
Louisiana Revised Statute 23:1208 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.
In Flintroy v. Salvage, 36,857, pp. 12-13 (La.App. 2 Cir. 3/10/03), 839 So.2d 1231, 1238, writ denied, 03-1068 (La. 6/6/03), 845 So.2d 1093, our brethren of the second circuit commented on the application of La.R.S. 23:1208 stating as follows:
La.R.S. 23:1208 authorizes forfeiture of benefits upon proof that (1) there is a false statement or representation; (2) it is willfully made; and (3) it is made for the purpose of obtaining or defeating any benefit or payment. The statute applies to any false statement or misrepresentation made willfully by a claimant for the purpose of obtaining benefits. Resweber v. Haroil Construction Co., 94-2708 (La.09/05/95), 660 So.2d 7. All of these requirements must be present before a claimant can be penalized. Nolan v. Rawls Farming Co., 35,086 (La.App.2d Cir.10/31/01), 801 So.2d 524, writ denied, 02-0001 (La.03/15/02), 811 So.2d 910; Harris v. Bancroft Bag, Inc., 30,431 (La.App.2d Cir.04/09/98), 714 So.2d 44. Because this statute is penal in nature, it must be strictly construed, both in its substantive ambit and in its penalty provisions. Chevalier v. L.H. Bossier, Inc., 95-2075 (La.07/02/96), 676 So.2d 1072; Smalley v. Integrity, Inc., 31,247 (La.App.2d Cir.12/09/98), 722 So.2d 332, writ denied, 99-0072 (La.03/19/99), 739 So.2d 782.
See also, Wallace v. Lavergne Transport, 02-0123 (La.App. 3 Cir. 6/12/02), 819 So.2d 508, writ denied, 02-1896 (La.10/25/02), 827 So.2d 1176.
Recently, in Rowan Companies, Inc. v. Powell, 02-1894 c/w 02-1895, p._ (La.App. 1 Cir. 7/2/03), ___ So.2d ___, ___, the first circuit observed:
The determination of whether there is a false statement or representation willfully made for the purpose of obtaining any benefit or payment involves inherently factual determinations and, thus, this court's review of those findings by the WCJ is governe
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