In January 2014, Claimant injured her neck while using a nail gun to build a shipping crate in the course of her employment.  Employer initially accepted her claim and paid her $19,467.15 in indemnity benefits and $22,717.46 in medical benefits.  Later, Claimant complained that her lower back was also injured as a result of this accident.  Employer contested any lower back injury, and Claimant filed a Disputed Claim for Compensation.

After some initial filings by both parties, Employer filed a supplemental answer and reconventional demand that alleged fraud pursuant to La. R.S. 23:1208.  Employer alleged that Claimant had made willful misrepresentation by repeatedly denying any pre-accident medical history as to her neck and low back.  The Office of Workers’ Compensation (“OWC”) judge granted Employer’s Motion for Summary Judgment ( “MSJ”), finding that Claimant had made material misrepresentations and awarded Employer restitution of $42,184.41.

In reviewing the granting of the MSJ de novo, the Third Circuit examined the evidence and determined that Claimant had an extensive history of neck and back pain dating back to 1999.  Further, Claimant denied having any neck or back problems to the physician she saw on the date of accident, denied having prior neck/back problems to her choice of treating physician, and denied having neck/back problems to employer’s second medical opinion physician.  Claimant also denied having any prior neck or back problems in her answers to written discovery and testified under oath at her deposition that she never had any neck/back pain after 2004.  This was contradicted by the voluminous prior medical records indicating extensive care, particularly in 2012 and 2013.  The appellate court affirmed the judge’s granting of summary judgment, finding that “willful intent [was] easily inferred from the record.”

Weems v. Electric Ins. Co., 2015-854 (La. App. 3 Cir. 5/11/16).