BOISE CASCADE CORPORATION v. Earnest L. DEAN, 767 So. 2d 76

I t SAUNDERS, Judge. This matter arises from a workers’ compensation matter wherein the Defendant, during his employ with Boise Cascade, worked as a twin resaw operator and was injured. Boise Cascade sought to terminate the Defendant’s compensation benefits, asserting that the Defendant was intoxicated after he tested positive for marijuana, that Defendant did not use proper safety procedures, and that Defendant committed fraud under La.R.S. 23:1208. The Defendant then filed a La.

R.S. 23:1208 claim against Boise Cascade, alleging that Boise Cascade made false statements about the safety procedures at the mill in order to terminate the Defendant’s benefits. Finding he violated La.R.S. 23:1208, the workers’ compensation judge terminated the Defendant’s benefits and sanctioned Boise Cascade $3,000.00, finding that it also violated La.R.S. 23:1208. We affirm in part, reverse in part and render. FACTS Earnest L. Dean, “Defendant,” worked for Boise Cascade, “Plaintiff,” as a twin band saw operator in Fisher, Louisiana.

His job involved guiding logs with hydraulic chains so as to run the logs through the two saws. Before beginning his shift on April 8, 1998, Defendant noticed that the infeed rollers to his machinery were running too slow. About five minutes before beginning the swing shift at 6:00 p.m., Defendant spoke with Jerry Manasco, a millwright, and asked him to adjust the speed of the hydraulic chains to speed up the rollers. Manasco and another millwright were then called to work on another piece of machinery in the mill, a pony edger.

Defendant observed Manasco leave to work on the pony edger and never saw him again until after the accident. Meanwhile, the whistle sounded to start the shift and Defendant began running his machinery. Defendant cut about six logs when he hit a nail.

To inspect the saw | ^blades, Defendant shut down the equipment, including turning the saws and rollers off, opening up the band saws, informing the filer that he hit metal, and then locking out the two saws with the two padlocks he was given; Defendant did not shut off the hydraulic power as this was not part of what Defendant customarily did during the shutdown procedure. This procedure took between ten and fifteen minutes.

Defendant just began to rotate the saws to inspect the teeth, holding onto the chains for leverage, when Manasco began adjusting the speed of the chains from the basement below and, in doing so, turned on the rollers. When the chains began to move, Defendant grabbed the chains for balance. Defendant’s hands got caught up in the sprocket, which tore up his hands and amputated five of his fingers in whole or in part. Defendant was first taken to Sabine Medical Center in Many and then transferred to Willis-Knighton Hospital in Shreveport, where he was administered a drug test.

Defendant’s urine tested positive for marijuana at 52 ng/ml. Defendant received medical benefits for his acute medical needs until June 4, 1998, when those benefits were terminated. On May 27, 1998, Defendant’s remaining compensation benefits were terminated after Plaintiff filed a claim with the Office of Workers’ Compensation, “OWC,” on May 15, 1998, seeking termination of Defendant’s benefits based on Defendant’s positive marijuana test and on his failure to follow safety guidelines, which led up to the accident.

Later, Plaintiff also brought a La.R.S. 23:1208 claim seeking termination of Defendant’s benefits on the basis of Defendant’s misrepresentation of his history of marijuana use. Defendant then brought a La.R.S. 23:1208 claim against Plaintiff, who in an effort to deprive Defendant of benefits, misleadingly asserted that Defendant failed to follow proper safety procedures. J¿LAW AND ANALYSIS A.

Defendant’s Assignment of Error Defendant argues that the workers’ compensation judge, “WCJ,” made legal error when she found that his initial misrepresentation of his history of marijuana use mandated a La.R.S. 23:1208 forfeiture of all benefits. The WCJ explained in her opinion on the merits: The forfeiture provisions contained in La.R.S. 23:1208 are harsh and penal in nature; this is particularly so under circumstances such as the injury suffered by Earnest Dean.

Although the provisions are to be strictly construed, the Court cannot, even under these circumstances, abrogate from the unambiguous provisions set forth by the legislature. Those provisions require the forfeiture of workers’ compensation benefits if the employee 1) makes a false statement or representation, 2) if such statement or representation is willingly made, and 3) if such statement or representation is made for the purpose of obtaining workers’ compensation benefits. The supreme court in Alexander v.

Pellerin Marble & Granite, 93-1698, p. 5-6, (La. 1/14/94); 630 So.2d 706, 710, discussed the standard of appellate review in workers’ compensation cases: The appropriate standard for appellate review is the “manifest error-clearly wrong” standard, which precludes the setting aside of a trial court or jury’s findings of fact unless those findings are clearly wrong in light of the record reviewed in its entirety.

The same standard of appellate review applicable to factual findings of district courts is also applicable to the factual findings of an administrative body or hearing officer. (Citations omitted.) As the WCJ noted, the three elements of the Resweber v. Haroil Const Co., 94-2708 (La.9/5/95); 660 So.2d 7, analysis for finding fraud for the purposes of La.R.S. 23:1208, are: “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.” Id., at 12.

The record reveals Defendant made a false statement in his ^deposition when he stated that prior to the Saturday before the Wednesday accident, he had not used marijuana since 1985. Defendant later told his attorney about this false statement, and his attorney then sought to remedy the situation by mailing a letter to Plaintiff, explaining that Defendant did, in fact, smoke marijuana on weekends three to four times a month. The first two elements of the Resweber requirements are not in dispute; Defendant misrepresented his history of marijuana use and he did it willfully.

At issue is the last prong of Resweber, which requires Defendant to have lied for the purpose of obtaining benefits. Defendant testified that he was not aware of any claims of fraud on the part of Plaintiff at the time he went to his attorney’s office to talk about his prior marijuana use. If Defendant had intended to defraud the Office of Workers’ Compensation to get benefits, his later rendition of the truth did nothing to help his claim — in fact, the WCJ’s use of La.R.S. 23:1208 to punish his desire to correct his earlier misstatement does nothing but discourage such remedial acts.

It is clear from the record that Defendant readily admitted his use of marijuana on the Saturday before the accident. Defendant explained to the WCJ that, at the time of the deposition, he was afraid of losing his attorney if he admitted to his history of marijuana use. There is nothing to contradict this, and there is nothing to show that Defendant had any reason to believe that lying about his past use of the drug would somehow help his case.

The WCJ concluded: Although Dean urged in Court, and through counsel beforehand, that the reason he made the false statement concerning his drug usage was because he was afraid that his attorney would no longer represent him, the Court is persuaded, under the totality of the circumstances, that Dan [sic] knew that his false statement would aid his attempts to gain workers’ compensation benefits.

Although a collateral reason for making the false statement may have been his real fear that he would lose the benefit of counsel, this nevertheless does not abrogate from the Court’s conclusion that Dean gave false deposition testimony, willfully, and for the purpose of obtaining workers’ compensation benefits. Although the employer, in fact, appears to have suffered no prejudice 15from the speedy correction of Dean’s testimony through his counsel, as our Supreme Court stated in Resweber v. Haroil Const. Co., 660 So.2d 7 (La.1995),

Section 1208 imposes no requirement that the employer be prejudiced. We agree that the record shows Defendant made the false statement, and knowingly did so, but we disagree that he did it for the purpose of obtaining workers’ compensation benefits. Defendant gave the hearing officer a plausible reason for his false statement, and it was not refuted. The WCJ, however, preferred to assume that he must have done it with the intent to get benefits, but an even more plausible assumption, if Defendant’s explanation is not to be accepted, is that his reticence was rooted in the obvious criminality of the act.

Regardless, the record indicates that the purpose for Defendant’s false statements has not been shown, by the “totality of the circumstances,” or otherwise, to have been the wrongful receipt of compensation benefits. We are, therefore, compelled to find manifest error in the WCJ’s conclusion that under La.R.S. 23:1208, Defendant must lose his compensation benefits. B. Plaintiffs First Assignment of Error Plaintiff assigns as legal error the WCJ’s finding that Defendant rebutted the presumption of intoxication of La.R.S. 23:1081 once he tested positive for marijuana. We disagree.

As the WCJ discussed, she gave Plaintiff the presumption and then shifted the burden of proof to Defendant to show that the accident did not occur as a result of his intoxication. Numerous co-workers spoke or interacted with Defendant on the day of the accident, and not one of them found anything unusual about his behavior or thought he might be intoxicated. Further, the WCJ found that the expert testimony established the length of time of real impairment after smoking marijuana as somewhere between five and six hours.

This, combined with the fact that there is nothing in the record to indicate Defendant smoked marijuana on April 8, 1998, leads | fithis court to agree with the WCJ that the overwhelming evidence in the record supports a finding that Defendant was not acting under the effects of the drug at the time of the accident. C. Plaintiff’s Second Assignment of Error Plaintiff argues that the WCJ committed manifest error when she found Plaintiff violated La.R.S. 23:1208 when it claimed Defendant did not follow proper procedures.

On the accident investigation form, it was reported by Defendant’s supervisors that the accident occurred because Defendant failed to lockout all power sources. Ray McComic, production superintendent for Plaintiff, testified that the lockout procedure in place at the time Defendant was injured required Defendant to press the emergency power shutoff button before he began the procedure of inspecting the saw blades. He admitted that Defendant could not have locked out all of the power sources since he was issued only two locks.

McComic explained that since the time of the accident, a new procedure has been implemented which now requires the use of five locks. McComic’s discrepancy arises where he gave testimony describing a demonstration of the shutdown procedure for when an operator hits a nail or metal. The demonstration was performed by Delton Lee “T.C.” Edmonson, the senior saw operator that worked the day shift before Defendant’s swing shift.

McComic testified that the first thing T.C. did in his demonstration for McComic, Russell Sylvester, Plaintiffs attorney, Andy Storer, claims manager handling Defendant’s claim against Plaintiff, and Louis Faucheaux, the employee relations manager for Plaintiff, was to press the emergency stop button. Yet, when T.C. testified, he unhesitatingly explained that pressing the emergency stop button to shut off all power was never the first or second thing to do when an operator hit metal.

T.C. further noted that he was |7never taught to do that, and more importantly, he adamantly denied having pressed the emergency stop button on the day that he gave the demonstration for McComic, Sylvester, Storer, and Fau-cheaux. Regarding the hydraulic pumps, Walter Williams, Jr., the saw filer on duty when Defendant got hurt, supported Defendant’s explanation of proper lockout procedure, and he recalled that he had never, prior to Defendant’s accident, been instructed to turn off the hydraulic pump switch when checking the saws.

In sum, a reading of all the testimony describing the lockout and shutdown procedures involved when an operator hits metal convinces this court, as it did the WCJ, that Defendant acted completely within the methods prescribed by Plaintiff. Further, we find T.C.’s testimony to be quite convincing, and we find it clear from the record that Plaintiff willfully sought to misguide the WCJ in its claims that Defendant did not act within the established procedures of the saw mill. Accordingly, we agree with the WCJ’s application of La.R.S. 23:1208 to penalize Plaintiff $3,000.00 for its willful and fraudulent conduct.

D. Plaintiffs Third Assignment of Error Plaintiff claims that the WCJ is manifestly erroneous in assessing Plaintiff with all costs of this matter based on her finding that Plaintiff violated La.R.S. 23:1208. The hearing officer discussed: Additionally, due to the nature of the false statements made by the employer’s representative — which resulted in Dean’s expenditure of costs to defend this action which he may not have otherwise have had to expend, as well as the Court’s consideration of the continued perpetuation of McComic’s false representation, all costs will be assessed against Boise. Washington v.

Lyons Specialty Co., 96-0263, p. 22-23 (La.App. 1 Cir. 11/8/96); 683 So.2d 367, 381, explains appellate review of a WCJ’s assessment of costs, to wit: IsExcept as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable. La. C.C.P. art.1920. Thus, under general civil law, the question of awarding costs is discretionary with the trial judge, except as otherwise provided by law. Smith v. Two “R” Drilling Company, Inc., 606 So.2d 804, 816 (La.App. 4th Cir.), writ denied, 607 So.2d 560 (La.1992).

Under workers’ compensation law, costs may be awarded by the hearing officer, in his discretion, and when so awarded the same may be allowed, taxed, and collected as in other civil proceedings. La.R.S. 23:1317. Accordingly, the question of awarding costs under both the general civil provisions and the specific workers’ compensation statute, is within the sound discretion of the court or the hearing officer.... On review, the trial court’s assessment of costs can be reversed only upon a showing of an abuse of discretion. Thibodeaux v.

USAA Casualty Insurance Company, 93-2238 (La.App. 1st Cir. 11/10/94); 647 So.2d 351, 362. In light of our agreement with the WCJ’s sanctions under La.R.S. 23:1208 against Plaintiff, and in light of our disagreement with her termination of Defendant’s benefits under the same statute, we readily find the WCJ’s sanctions against Plaintiff for its willful, egregious, and unconscionable behavior without error.

ATTORNEY’S FEES In light of Plaintiffs attempted “sham defense,” we find Plaintiffs termination of Defendant’s benefits and its unscrupulous attempt to defraud Defendant of his rightful compensation benefits, arbitrary, capricious, without probable cause, and particularly egregious. See Britton v. City of Natchitoches, 97-1038 (La.App. 3 Cir. 2/11/98); 707 So.2d 142, writ denied, 98-1203 (La.6/26/98); 719 So.2d 1057.

Hence, under La.R.S. 23:1201.2, we now assess Plaintiff for $10,000.00 in attorney’s fees for work done at trial and on appeal. | „CONCLUSION AND DECREE Under La.R.S. 23:1208, we find Defendant did not commit fraud with the purpose of procuring compensation benefits. We reverse the WCJ’s rule revoking all compensation benefits to Defendant, Ernest L. Dean, and we affirm the WCJ’s rule sanctioning Plaintiff, Boise Cascade Corporation, $3,000.00 for its fraudulent behavior designed to deny Defendant compensation benefits.

Additionally, in light of Plaintiffs egregious and blatant attempt to deprive this permanently crippled worker of compensation benefits, we order Plaintiff to pay $10,000.00 for Defendant’s attorney’s fees for work done at the hearing level and on appeal. We affirm the WCJ’s judgment assessing all costs at the administrative level against Plaintiff, and we now assess all costs of appeal against the same. AFFIRMED IN PART, REVERSED IN PART and RENDERED. SAUNDERS, J., concurs with reasons. .

La.R.S. 23:1201.2 provides, in pertinent part: Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such disconlin-uance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of all reasonable attorney fees for the prosecution and collection of such claims.