Tag: fraud

Is timing everything where workers compensation benefits are forfeited based on fraud? It depends…

In Moran v. Rouse’s Enterprises, LLC, 19-2392019(La. App.5 Cir. 12/26/19)- – – So. 3d – – -, the Louisiana Fifth Circuit held that there is a forfeiture of all benefits when a worker’s compensation claimant commits fraud, regardless of when the fraudulent conduct occurs. The court declined to follow opinions from the First and Third Circuits concluding otherwise.

In Moran, the claimant obtained treatment for injuries to her back, right knee, and right shoulder after a slip and fall at work for Rouses supermarket. In her deposition, the claimant Moran testified that she experienced knee pain only once before her fall; it was “years ago” and not “serious.” Moran also claimed that she experienced no prior shoulder or back pain. However, medical records established:

•             Complaints of knee pain on at least 8 separate occasions between 2012 and the job injury;

•             Complaints of right knee, right wrist, and back pain after a slip and fall in 2013; and

•             A right shoulder impingement diagnosis 2 months before the on-the-job accident.

Rouses and its workers compensation carrier affirmatively alleged a violation of La. R.S. 23:1208, Louisiana’s workers compensation fraud statute, following the claimant’s deposition. Paragraphs “A” and “E” of section 1208 provide in pertinent part:

A.            It shall be unlawful for any person… to willfully make a false statement or representation… for the purpose of obtaining or defeating any benefit or payment under…this Chapter.    

***

E.            Any employee violating this Section shall… forfeit any right to compensation benefits under this Chapter.

As part of their fraud defense, the defendants specifically denied responsibility for all worker’s compensation benefits, i.e. benefits that that might have otherwise been due both before and after the fraudulent deposition testimony.

Following trial, the workers compensation judge determined that Moran carried her burden of proving the occurrence of on-the-job injury and disability. Nevertheless, the trial court also ruled that the claimant made false statements for the purpose of obtaining workers compensation benefits in violation of section 1208, thereby forfeiting the right to both the pre and post-deposition benefits that she was claiming.

On appeal, Moran argued that the forfeiture requirement of section 1208 applies prospectively only. Moran cited opinions from the Louisiana First and Third Circuits. After addressing the statute and the case law, the Moran court affirmed the decision of the workers compensation judge finding that the forfeiture of benefits provided for in of Section 1208 is clear and unambiguous. The opinion states that “…if the legislature had intended to limit the application … it would have clearly expressed that in the statute.”

There are no Louisiana Supreme Court opinions which specifically address whether the Section 1208 forfeiture applies retroactively or prospectively only. Given the defined split in the Louisiana appellate courts, the issue is ripe for consideration by the state’s highest court.


Ed is a Keogh Cox partner who litigates Worker’s Compensation, automobile and premises liability as well as subrogation claims. He is an avid runner and enjoys traveling with his wife Jennifer and their three children.

Real Estate Liability: Recovery Denied in “As Is” Sale Despite Quick Discovery of Mold

In the recent case of Riedel v. Fenasci, 2018-0540 (La. App. 1 Cir. 12/28/18), _______ So. 3d _______, 2018 WL 6818716, home buyers sued the sellers and the involved real estate agents after mold was discovered shortly following the sale. This is a common fact pattern in humid South Louisiana. The buyers lost in the trial court when there was no evidence that the sellers or the agents knew of the problem. The result was affirmed by the First Circuit Court of Appeal. 

The Riedels identified mold weeks after the closing and filed a claim with their homeowner’s insurer. But the claim was denied when the insurer’s inspection revealed long- term damage, rot, and deterioration in a ceiling due to water damage.  That finding prompted the suit.

Against the sellers, the Riedels contended that they “had to have known” about the moisture and mold in the home prior to the sale.  Because the home was sold “as is,” they had to establish fraud to recover. However, the sellers had not lived in the home for years and had received no complaints from tenants over this time. Under such facts, the claim of fraud was not supported.

The Riedels also sued both agents for negligent misrepresentation, and their own agent for breach of fiduciary duty.  In assessing the claim against the agents, the Riedel Court agreed that real estate agents are liable for negligent misrepresentation when they fail to disclose hidden defects in the property which were known or should have been known to them. The Court also agreed that a purchaser’s real estate agent owes a fiduciary duty, the highest duty of care recognized by law.  Nevertheless, when the plaintiffs’ own inspector found no visible evidence of mold prior to the sale and there was no indication that the agents possessed prior knowledge of the mold, the claim against the agents was also dismissed.

Marty Golden has been practicing law based in Baton Rouge, Louisiana for over thirty years, concentrating in civil litigation primarily involving injuries, property damage, insurance coverage, and contract disputes. Much of his practice is defending and advising real estate agents in suits by property buyers and sellers, but Marty also defends other professionals, insurance companies, manufacturers, and business owners. Marty has a special interest in all things procedural, because they are the rules of the road for litigators and knowing them better than his opponent gives him a leg up in court.