Third Circuit Considers Intent When Deciding Forfeiture Under RS 23:1208.1
Opinion – The Louisiana Third Circuit Court of Appeal recently handed down a decision in Donald Tanks v. Chicago Bridge and Iron Company (Docket No. 19-369). Tanks was injured when he slipped and fell in a flooded hole and sunk to his waist. He was taken immediately to the Emergency Room where he complained of lower back and right shoulder pain. At trial, the Trial Court ruled in Claimant’s favor, denying CB&I’s argument that Claimant had forfeited workers’ compensation benefits, pursuant to La. RS 23:1208.1 (the “Forfeiture Statute”).
The Third Circuit began its discussion with a history of the Second Injury Fund, which the Legislature enacted to encourage the employment of physically handicapped employees who have a permanent partial disability. The Forfeiture Statute was enacted to protect employers and allow them to inquire about an employee’s medical history and to comply with the “knowledge” requirement of second injury fund relief.
The Third Circuit cited Nabors Drilling v. Davis, 857 So.2d 407 which provided “Forfeiture is a harsh remedy; therefore, forfeiture provisions such as LSA-R.S. 1208.1 must be strictly construed.” R.S. 1208.1 provides for forfeiture under three circumstances: (1) The employee makes an untruthful statement, (2) which prejudices the employer, and (3) the form complies with the Notice Requirement of the statute. The Nabors court continued: “The lack of any one of the elements is fatal to the employer’s avoidance of liability under the statute.” It is not enough that the employee makes an untruthful statement, there must be resulting prejudice to the employer. Nabors, supra.
In this case, Mr. Tanks completed a “Second Injury Board Knowledge Questionnaire,” which “appeared” to comply with the technical requirements of the Statute. On the fourth page, Mr. Tanks was tasked with answering five (5) questions related to past work restrictions, current treatment with any physicians, current medications taken, previous work accidents, and prior surgical recommendations. Mr. Tanks responded negatively to all five (5) questions. However, Mr. Tanks’ answers to three (3) of the five (5) were untruthful: Claimant was previously restricted from work activities, he had a prior work accident, and he was recommended for a prior back surgery.
The Third Circuit determined that the Trial Court was not manifestly erroneous in finding that Mr. Tanks did not forfeit his right to collect benefits under the circumstances of the case. The Court reasoned that because Mr. Tanks rushed through the application process and did not read the questionnaire before signing it, he had no intent to deny the occurrence of a prior accident/injury. CB&I’s lone witness confirmed the chaotic scene on the day Mr. Tanks applied with CB&I. The Court further explained that Mr. Tanks’ present injuries did not merge with his prior injuries to create a greater injury. As such, CB&I was not prejudiced by his untruthful answers, which is a fatal flaw to a defendant’s arguments under the Forfeiture Statute.