KLINE, J.
This is an appeal from a judgment of the Office of Workers' Compensation (OWC) finding that claimant, Ricardo Teano, violated the provisions of La. R.S. 23:1208, thereby forfeiting his rights to workers' compensation benefits. We affirm.
FACTS AND PROCEDURAL HISTORY
On July 5, 2000, Ricardo Teano, while in the course and scope of his employment with Electrical Construction Co. (ECC), slipped in a ditch and injured his right knee. Teano began receiving workers' compensation in the amount of $367.00 per week. Teano was treated by Dr. James Gosey, an orthopedic surgeon. On July 25, 2000, Gosey performed surgery on Teano's knee. ECC paid for the surgery and provided physical therapy. In October of 2000, Gosey indicated that Teano had reached maximum medical improvement. In November of 2000, after conducting a functional capacity evaluation, Gosey recommended that Teano be placed in a status of light to medium level work and opined that Teano was not going to be able to return to his old job as an electrician. In February of 2001, ECC sent Teano to Stanford McNabb for vocational rehabilitation. McNabb obtained several job leads for Teano, but ECC alleges he did not follow up on those leads. Dr. Gosey, Teano's physician of choice, approved Teano for four out of six jobs recommended by McNabb. However, Teano did not pursue those jobs either. On July 6, 2001, ECC filed a disputed claim for compensation alleging that Teano was not cooperating with the vocational rehabilitation.
Subsequently, Teano was examined by several other doctors. On November 14, 2001 he was seen by Dr. Richard Roniger, a psychiatrist chosen by ECC; and on February 1, 2002, Teano was examined by Dr. John Sweeney, an orthopedic surgeon chosen by ECC. Dr. Roniger disagreed with Dr. Denney's opinion that Teano could not return to work. Accordingly, on January 31, 2002, the Office of Workers' Compensation referred Teano to Dr. Harold Ginzburg, a psychiatrist. ECC provided Teano with psychiatric treatment from August 16, 2001 until March of 2002.
ECC eventually learned that Teano had been treated by a Dr. Mathew Horsefield for various problems, including anger, adjustment disorder, anxiety and depression, prior to his work-related accident. On April 3, 2002, Teano's benefits were reduced to supplemental earnings benefits. On May 15, 2002, ECC amended its disputed claim form alleging that Teano violated La. R.S. 23:1208, thus, forfeiting his entitlement to benefits. ECC alleged that Teano stated that he had not been treated for depression, anxiety or other psychological conditions prior to the accident. Teano was questioned by the previously named doctors concerning his medical and family history. However, Teano did not relay any prior problems with anxiety, depression or other psychological conditions prior to the accident to anyone, including the doctors, even when questioned. ECC alleged that medical records from other health care providers showed that Teano suffered from anxiety, depression and other psychological conditions for which he sought treatment before the accident. Records from Global Medical Center indicated such and were presented to Teano on the day of trial.
A trial on the matter was held on April 22, 2002. The OWC judge rendered judgment in favor of ECC. The OWC judge found that Teano violated La. R.S. 23:1208(A) and, thus, forfeited his rights to benefits under La. R.S. 23:1208(E). Teano was also assessed a penalty of $5,000.00 pursuant to La. R.S. 23:1208(D). Teano filed this devolutive appeal.
STANDARD OF REVIEW
Factual findings in a workers' compensation case are subject to the manifest error standard of appellate review. Joseph v. J.E. Merit Constructors, Inc., 2001-1666, p. 5 (La.App. 1st Cir.6/21/02), 822 So.2d 72, 76, writ denied, 2002-2295 (La.4/4/03), 840 So.2d 1201; Marsh Buggies, Inc. v. Ledet, 2000-1911, p. 3 (La. App. 1st Cir.12/28/01), 804 So.2d 908, 910. An appellate court cannot set aside the factual findings of a workers' compensation judge unless there is no reasonable basis for those findings or they are clearly wrong. In addition, when factual findings are based on witness credibility, the appellate court must give great deference to the fact-finder's decision to credit or discredit a witness's testimony. Rhodes v. Terrebonne Parish Sheriff, 2001-2279, p. 3 (La. App. 1st Cir.6/21/02), 822 So.2d 114, 116-117.
The hearing officer made the following findings of fact:
Dr. James Denney, Mr. Teano's treating psychiatrist, testified by deposition that while Mr. Teano supposedly did inform him of his daughter's rape in 1998, Dr. Denney did not record that in his records because "Workmen's (sic) Compensation does not authorize or pay for treatment that is not directly related to the job-related injury." This admission is particularly troubling since one of the issues before the court was whether Mr. Teano's current mental condition is related to his knee injury. Regardless of whether or not Mr. Teano disclosed the details of the rape to Dr. Denney, Dr. Denney's deposition testimony as well as that of Mr. Teano both confirm
We have reviewed the record and find these findings accurate.
ADMISSION OF GLOBAL MEDICAL CENTER RECORDS
On April 19, 2002, ECC received medical records from the Global Medical Center, which showed that Teano had been treated for depression and anxiety in the past. However, Teano's counsel was not able to receive those records until the morning of trial. The hearing officer allowed the introduction of the records over the objection of Teano. Teano asserts that the OWC judge erred in admitting medical records from the Global Medical Center when those records were not produced by ECC until the day of trial.
Teano relies on Lemoine v. Hessmer Nursing Home, 94-836 (La.App. 3rd Cir.3/1/95), 651 So.2d 444, in support of that argument. However, in Lemoine, at issue was the admission of medical evidence pursuant to La. R.S. 23:1122 and in lieu of testimony. In addition, the Hearing Officer Rules were amended in March of 2002, one month before the date of this trial. We do not find in the amended rules one that mandates that all trial exhibits be exchanged within ten days before trial as Teano contends. However, the rules do require that the pre-trial statements include a list and brief description of all exhibits to be offered at trial. Louisiana Administrative Code Title 40, Chapter 60, § 6007. ECC's statement did not include the Global records. However, § 6007 also states that amendments to the pretrial statement are permitted if good cause is shown.
In addition, LAC 40:6203, states that "the trial of a workers' compensation claim shall be governed by R.S. 23:1317." La. R.S. 23:1317 states that "[t]he workers' compensation judge shall not be bound by technical rules of evidence or procedure.... The workers' compensation judge shall decide the merits of the controversy as equitably, summarily, and simply as may be." See also Brooks v. Leggett & Platt, Inc., 94-0617 (La.App. 1st Cir.11/9/95), 665 So.2d 432. The hearing officer has great discretion in conducting trials in a manner that he or she determines to be consistent with the fair administration of justice. Lemoine, 94-836 at 11, 651 So.2d at 451; Brooks, 94-0617 at 4, 665 So.2d at 434. Furthermore, reasonable questions as to the admissibility of evidence should be resolved in favor of receiving such evidence. Lemoine, 94-836 at 11, 651 So.2d at 451. Also, when a party seeks to exclude evidence on grounds of surprise, the court may grant a
Even though requested to do so through discovery, Teano chose not to reveal the existence of the Global Medical Center records. He also did not reveal his prior treatment when questioned by the other doctors. As the hearing officer noted, if Mr. Teano had been "forthcoming about his prior medical treatment, these records would have probably surfaced sooner." Accordingly, the trial court did not abuse its discretion in admitting the Global Medical Center records into evidence.
VIOLATION OF LA. R.S. 23:1208
La. R.S. 23:1208 states, in pertinent part:
La. R.S. 23:1208 prohibits a willful misrepresentation made by anyone for the purpose of obtaining or defeating any benefit or payment. La. R.S. 23:1208(A); Hull v. Fluker Farms, 2000-0757, p. 14 (La.App. 1st Cir.5/11/01), 787 So.2d 535, 544, writ denied, 2001-2291 (La.11/16/01), 802 So.2d 612. In Resweber v. Haroil Construction Co., 94-2708, p. 8 (La.9/5/95), 660 So.2d 7, 12, the Louisiana Supreme Court stated that the "legislature has determined workers' compensation fraud is a severe and growing problem and has continually amended Section 1208 to make it easier to enforce and to make the penalties stiffer."
The requirements for forfeiture of benefits under La. R.S. 23:1208 are that there is: (1) 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. Jim Walter Homes, Inc. v. Prine, 2001-0116, p. 8 (La.App. 1st Cir.2/15/02), 808 So.2d 818, 824. The relationship between the false statement and the pending claim will be probative in determining whether the statement was made willfully for the purpose of obtaining benefits. Id.
Teano asserts that the hearing officer erred in finding that Teano made false representations by failing to answer interrogatories regarding the identity of his family physician and his medical treatment before the accident. Teano asserts that he was instructed not to answer the interrogatories addressing the identity of physicians he had seen in the past and his
Teano also asserts that the hearing officer erred when it found that Teano made false representations when he stated that he didn't remember being treated for depression. In addition, Teano asserts that the medical and lay evidence refutes the hearing officer's conclusion that Teano should have remembered the specific nature of his treatment with his primary care physician, Dr. Horsefield, because that treatment was limited in duration, was for basic care and occurred more than a year before the accident.
Teano relies on the testimony of Dr. Denney, who stated that Teano was experiencing concentration problems which marred his ability to remember day to day things. In addition, Teano claims that the evidence refutes the hearing officer's conclusion that Teano should have remembered the specific nature of the treatment he received when he visited the Northshore Hospital more than two years earlier.
However, the hearing officer did not mention the Northshore Hospital as one of the reasons for her findings. Also, although Dr. Denney testified that Teano experienced concentration problems which could hinder his ability to remember things, other doctors testified to the contrary. In fact, Dr. Sweeney testified that Teano was very clear on some details but not on others, and the record clearly confirms that. Generally, the other details were those concerning prior treatment for the type of medical problems Teano was complaining of in this suit. Dr. Sweeney did testify that if someone is depressed it can affect the quality of the history they provide. However, he did not feel that was the case in this instance. Also, Dr. Ginzburg testified that he did not believe Teano's memory was affected. Furthermore, Dr. Sweeney testified that when he questioned Teano about his previous medical history, Teano told him that he was "perfectly healthy" prior to the accident. The record shows this was clearly not the case, and this type of assertion goes beyond Teano simply "failing to remember" past medical treatment, but rather is a completely false assertion which he knew to be incorrect.
Teano also asserts the hearing officer erred in finding that Teano was not suffering from memory problems based exclusively on the testimony of Dr. Ginzburg, who only saw Teano for two hours, who did not have Teano's pertinent medical records, and who did not examine Teano during the time in which he made the allegedly false statements. Teano also asserts that the hearing officer erred in giving greater weight to Dr. Ginzburg's testimony than to that of Dr. Denney.
However, the hearing officer's judgment was not based solely on Dr. Ginzburg's
In furtherance of his argument, Teano asserts that Dr. Ginzburg was not given all the pertinent medical records. However, Dr. Denney was also not provided pertinent medical records, such as Dr. Horsefield's records, because Teano did not provide him with those records. In addition, as the hearing officer noted, Dr. Denney claims to have been informed about the rape of Teano's daughter and other problems, including "every last detail" to some extent. However, he states he did not include those items in his report because it was not related to the accident. In fact, Dr. Denney testified that he did not include in his medical reports anything Teano told him that wasn't related to the work related accident. Accordingly, the hearing officer questioned the credibility of Dr. Denney and was correct in giving greater weight to Dr. Ginzburg, the independent medical examiner, than to Dr. Denney.
Also, weighing against Dr. Denney's conclusions is the fact that the Global Medical Center records show that Teano was able to remember approximately four months before the accident being treated by Dr. Horsefield for depression. Furthermore, Dr. Horsefield's records show that Teano was taking medication, such as Wellbutrin when he visited Dr. Horsefield on April 10, 2000, less than three months before the accident in question. As the hearing officer noted, the "treatment which Mr. Teano failed to disclose to his employer or his doctors or claims to not remember was so close in time to his July 5, 2000 injury it is inconceivable that he forgot about it."
Furthermore, there was conflict between the testimony of Dr. Denney and that of the other doctors. The hearing officer's findings were thus based on her credibility determinations. These findings should not be disturbed on review. Rhodes, 2001-2279 at p. 3, 822 So.2d at 117.
Teano also asserts that the hearing officer erred in finding that Teano willfully made false statements because, due to Teano's state of mind, he lacked the requisite knowledge and willfulness to violate R.S. 23:1208.
In support of that argument, Teano cites Sumner v. Lake Charles Marine, 96-280 (La.App. 3rd Cir.6/5/96), 676 So.2d 653, writ denied, 96-1772 (La.10/11/96), 680 So.2d 645. In Sumner, the court held that the claimant made a false statement concerning his injuries. However, the court held that the claimant did not forfeit his benefits because the statement was not willfully made. In reaching this conclusion, the court noted the defendant's lack of education, severe pain exacerbated by the defendant's refusal to authorize pain management and his depression. Sumner, 96-280 at p. 4, 676 So.2d at 655. However, in the case sub judice, even though Teano left high school after the eleventh grade, he did receive his GED and went to Delgado college. The record also shows he was the captain of a boat in the Mississippi River. Furthermore, in Sumner the claimant initially gave a direct and full account of his injuries. Contrarily, Teano never did so. Also, in Sumner, the court stated that the claimant's false statements
The record is replete with instances in which Teano stated he was not able to remember any previous treatment, including those instances in answers during his deposition, his response to interrogatories, his testimony in court, and his related history when examined by doctors.
Based on the foregoing, we cannot say the hearing officer erred in finding that Teano violated the provision of La. R.S. 23:1208.
EXPERT WITNESS FEES
Teano asserts the hearing officer signed a judgment taxing the costs of the experts to Teano. He alleges that the hearing officer erred in assessing those costs to him on the basis that ECC did not file the motion to tax costs until after the hearing officer signed the May 10, 2002 judgment. However, even though there is a judgment dated November 2, 2002 attached to Teano's brief, the motion to tax costs and the judgment awarding those costs are not found in the record. In addition, that judgment shows that a separate hearing was held on the issue and the November 2, 2002 judgment was rendered pursuant to that hearing. The proper procedure for Teano to have had that judgment reviewed would have been to appeal that judgment.
ASSESSMENT OF CIVIL PENALTY
Teano also asserts that the hearing officer erred "when it assessed a civil penalty against Mr. Teano in the amount of $5,000.00 pursuant to [La. R.S. 23:1208(D) ]." However Teano did not brief this assignment of error. Rule 2-12.4, Uniform Rules—Courts of Appeal, states, "[a]ll specifications or assignments of error must be briefed. The court may consider as abandoned any specification or assignment of error which has not been briefed." La. R.S. 23:1208(D) states, in pertinent part:
Clearly, the hearing officer has discretion in assessing a civil penalty of up to $5,000.00. Teano has not stated how the hearing officer abused its discretion in awarding the $5,000.00 penalty. Accordingly, we affirm that part of the judgment.
REIMBURSEMENT OF BENEFITS
ECC answered the appeal of Teano and asserted that the hearing officer erred in failing to award ECC restitution pursuant to La. R.S. 23:1208(D). La. R.S. 23:1208(D) states, in pertinent part:
DECREE
For the foregoing reasons, the judgment of the Office of Workers' Compensation Hearing Officer is affirmed. Teano is to pay all costs of this appeal.
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