EBARB v. BOISE CASCADE COMPANY (2026)

The employer in this workers’ compensation matter appeals a judgment in favor of its former employee, which denied the employer's affirmative defense of fraud under La.R.S. 23:1208 and awarded the employee permanent total disability benefits retroactive to March 14, 2022. For the following reasons, we affirm the judgment.

FACTS

On March 26, 2012, Maria Ebarb was injured while operating a front-end loader in the course of her employment with Boise Cascade Company (Boise), when the front-end loader struck a hidden piece of concrete and jolted her. She filed a claim against Boise for temporary total disability benefits, alleging that she suffered injuries to her low back and neck in the accident. Before trial, Ms. Ebarb withdrew her claim that the accident caused injuries to her neck. The matter proceeded to trial, and Ms. Ebarb was awarded temporary total disability benefits for her back injury.

In 2018, Boise filed a claim to have Ms. Ebarb's benefits reduced to supplemental earnings benefits, alleging that her physical condition had improved and that she was no longer entitled to temporary total disability benefits. Boise sought to have Ms. Ebarb's temporary total disability benefits discontinued and replaced by supplemental earnings disability benefits. A hearing on Boise's claim was held in December 2019. By judgment dated October 18, 2021, the WCJ granted Boise's request. Evidence introduced at the 2019 hearing established that “Ms. Ebarb has severe functional limitations related to a progressive multifocal neuropathy affecting both upper extremities,” which are not related to her March 26, 2012 back injury.¹

On May 16, 2022, Ms. Ebarb filed a claim for permanent total disability benefits and alleged that her back pain had increased such that she cannot engage in any employment. Boise filed an affirmative defense to the claim in which it asserted that Ms. Ebarb forfeited her right to any benefits she might be entitled to recover because she made a fraudulent statement in violation of La.R.S. 23:1208 which makes it unlawful for a claimant to willfully make a false statement to obtain benefits. A trial was held on August 20, 2024, and on May 16, 2025, the WCJ issued oral reasons for ruling in which he determined that Boise did not prove its affirmative defense that Ms. Ebarb committed fraud when she related to a neurologist that she consulted in 2023 that her neck was injured in the 2012 work accident. The WCJ also concluded that Ms. Ebarb proved that she cannot be gainfully employed and that Boise is liable to her for permanent total disability benefits as a result of her 2012 back injury.

Boise appealed the WCJ's judgment dated June 4, 2025, and assigns three errors with the WCJ's findings and judgment:

1) When a workers’ compensation claimant falsely claims to her doctor that her neck problems were caused by the work accident, leading the doctor to recommend treatment for a condition the claimant knows to be unrelated to the work accident, it is error for the WCJ to dismiss the employer's defense pursuant to [La.]R.S. 23:1208.

2) When a judgment is rendered that a workers’ compensation claimant is no longer temporarily totally disabled but is entitled to supplemental earnings benefits, it is error for the WCJ to modify the judgment under the guise of “liberal construction” when the evidence upon which the judgment was based has not changed.

3) It is error for the WCJ to consider non-work-related conditions in determining permanent total disability status.

Fraud

Boise argues that the WCJ erred in concluding that Ms. Ebarb did not make a fraudulent claim to Dr. William Brennan, a neurosurgeon she consulted for her permanent total disability claim, that her March 26, 2012 accident caused injury to her neck. This defense is governed by La.R.S. 23:1208, which states, in pertinent part:

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

․

E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

Sections B and C of La.R.S. 23:1208 provide for the imposition of criminal and civil penalties, respectively, on anyone who makes a false statement for the purpose of obtaining or defeating workers’ compensation benefits.

Boise asserts that Ms. Ebarb made untrue statements to Dr. Brennan that her low back and her neck were injured in the accident to improve her odds of obtaining a favorable judgment on her permanent total injury claim. Boise made the same claim earlier in this proceeding without success and now argues that Ms. Ebarb knew the statements she made regarding her neck being injured in her 2012 accident were untrue when she made them to Dr. Brennan.

Ms. Ebarb counters that the only statements she made to Dr. Brennan regarding her neck and arms were made in response to questions that Dr. Brennan asked her and asserts that she sought treatment from Dr. Brennan for her back only, not her neck and arms. The intake form Ms. Ebarb completed shows that she identified only leg pain, weakness, back pain, and “R foot numb” as the reasons she sought treatment from Dr. Brennan. We note the record establishes that Ms. Ebarb's neck and arms are misshapen and visibly noticeable due to the multifocal cervical neuropathy. Therefore, it is understandable that Dr. Brennan questioned Ms. Ebarb regarding her neck and arms.

The evidence further shows that before the first trial was held in this matter, Ms. Ebarb modified her claim for temporary total disability benefits by dismissing her claim that she injured her neck in her accident. During the trial at issue herein, when questioning Ms. Ebarb, counsel for Boise indicated that she represented her neck had been hurt in the March 2012 accident without any credible medical evidence. Ms. Ebarb denied that assertion, explaining that the surgeon who performed surgery on her neck opined to her that her neck was injured in her work accident.

To succeed on a fraud defense under La.R.S. 23:1208, the employer must prove three elements: (1) that “a false statement or representation,” (2) was “willfully made,” and (3) was “made for the purpose of obtaining or defeating any benefit or payment.” Resweber v. Haroil Constr. Co., 94-2708, 94-3138, p. 7 (La. 9/5/95), 660 So.2d 7, 12. “[W]here the false statements are made specifically to obtain benefits, and thus to defraud the workers’ compensation system, the benefits will be forfeited for the sole reason that the claimant has willfully and deliberately attempted to defraud the workers’ compensation system, and no further requirements are to be imposed.” Id. at 16 (emphasis added).

The forfeiture imposed by La.R.S. 23:1208 is severe in nature; therefore, it must be strictly construed. Freeman v. Chase, 42,716 (La.App. 2 Cir. 12/5/07), 974 So.2d 25.

The word “willful” has been defined as “proceeding from a conscious motion of the will; voluntary; knowingly; deliberate; intending the result which actually comes to pass; designed; intentional; purposeful; not accidental or involuntary.” Grant v. Natchitoches Manor Nursing Home, 96–1546 (La.App. 3rd Cir.5/14/97), 696 So.2d 73, 76, writ denied, 97–1582 (La.10/17/97), 701 So.2d 1330. 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. A false statement which is inconsequential to the present claim may indicate that the statement was not willfully made for the purpose of obtaining benefits. Clearly, an inadvertent and inconsequential false statement would not result in forfeiture of benefits. Resweber v. Haroil Constr. Co., 660 So.2d at 16.

Ebarb v. Boise Cascade Co., 16-94p. 12 (La.App. 3 Cir. 7/13/16), 202 So.3d 1087, 1095, writ denied, 16-1545 (La. 11/18/16), 210 So.3d 285 (quoting Newman v. Richard Price Constr., 02-995, p. 5 (La.App. 1 Cir. 8/8/03), 859 So.2d 136, 141).

The WCJ thoroughly discussed this issue and found Ms. Ebarb's belief that her work accident contributed to or caused the condition affecting her neck and arms was credible and “not unreasonable.” The WCJ referenced evidence establishing that Ms. Ebarb has memory issues. It then determined that she was “not deceitful” and that her explanation of Dr. Brennan's questioning about her neck and arms was credible. The WCJ in the first trial also found Ms. Ebarb credible. See Ebarb, 202 So.3d 1087.

The WCJ is in the best position to determine a witness's credibility. Carrier v. Harrington, 14-1027 (La.App. 3 Cir. 4/8/15), 162 So.3d 1273, writ denied, 15-904 (La. 6/19/15), 172 So.3d 1091. Based on the evidence before us, we do not find the WCJ erred in accepting Ms. Ebarb's explanation of how and why she told Dr. Brennan that she injured her neck in the accident and that she did not willfully make a false statement about her neck injury to Dr. Brennan to obtain workers’ compensation benefits.

Modification of Benefits

Boise next argues that the WCJ applied the wrong burden of proof to Ms. Ebarb's claim for modification of her benefits award because he referenced “liberal construction” in his reasons for ruling when addressing the claim. It also argues that the evidence upon which the 2022 judgment modifying Ms. Ebarb's benefit award from total temporary disability to supplemental earnings benefits was based has not changed. Therefore, the WCJ erred in concluding that Ms. Ebarb proved she had a change in her condition as required by La.R.S. 23:1310.8(B) to have her 2012 award of supplement earnings benefits modified to permanent total disability benefits.

A claimant seeking modification of a workers’ compensation award must prove by a preponderance of the evidence that her disability has increased. Luquette v. Self, 12-112 (La.App. 3 Cir. 6/13/12), 94 So.3d 930. A WCJ's factual finding that a party has demonstrated a change in condition is entitled to great weight and is not to be disturbed unless it is clearly wrong. Mouton v. Walgreen Co., 17-1025 (La.App. 3 Cir. 5/2/18), 246 So.3d 590, writ denied, 18-1147 (La. 10/15/18), 253 So.3d 1297.

Boise points out that La.R.S. 23:1020.1(D)(2) mandates against “broad, liberal construction in favor of either employees or employers[,]” when resolving factual disputes in workers’ compensation cases and requires that “the laws pertaining to workers’ compensation shall be construed in accordance with the basic principles of statutory construction and not in favor of either employer or employee.” Boise also contends that Ms. Ebarb failed to establish that her physical condition has changed since the October 2021 judgment where the WCJ determined that she had reached maximum medical improvement, was no longer temporarily totally disabled, and could return to work as determined by a 2019 Functional Capacity Evaluation.

Ms. Ebarb presented evidence establishing that her physical condition and mental condition have declined since the 2019 hearing. In early February 2023, she returned to Dr. Pierce Nunley, the orthopedic surgeon who treated her for her back pain until her temporary total disability benefits were converted to supplemental earnings benefits. At that time, Ms. Ebarb complained of back pain with buttock and leg symptoms. Dr. Nunley noted that these are “the same complaints she had in the past, but now worse” and that she now has radiculopathy in her left leg which she did not have previously.

Ms. Ebarb described the pain to Dr. Nunley as being in her back, going “all the way across, and into [her] hips, buttocks and lower extremities in no discernible pattern all the way to the calves.” She reported that her back pain was worse than her buttock and leg pain and that her pain was worse with sitting than with standing or walking. She described her pain at that time as 10 and as ranging from 7 to 10 with 10 being intolerable. She stated that this pain was affecting her life significantly and that her back pain wakes her at night. Dr. Nunley ordered testing, injections, and nerve blocks which Ms. Ebarb reported gave her some relief from the pain for a while. She continued treating with Dr. Nunley until Boise refused to pay for additional treatment.

Based on an April 13, 2023 lumbar MRI, Dr. Brennan identified facet changes in Ms. Ebarb's spine at L3-4, L4-5 that he testified were most likely significant pain generators in her spine because there was no direct evidence of nerve compression. Though he could not quantify them, Dr. Brennan testified that Ms. Ebarb has functional limitations in her lower back and legs and will have problems sitting for long periods of time. The records of Dr. Chi-tai Lau, Ms. Ebarb's family doctor, confirmed that she has back pain and numbness in her legs that cause her to fall. Ms. Ebarb also consulted Dr. Hugh Bryan, a psychologist, for depression and anxiety. Dr. Bryan diagnosed her with severe depression, anxiety, and PTSD and prescribed medication.

Glenn Hebert, a vocational expert, administered testing on Ms. Ebarb to determine her ability to obtain employment. Mr. Hebert testified that when he tested her in conjunction with this claim, she could not hold a pencil and clarified that this was the result of her multifocal neuropathy, not her back injury. Therefore, he only administered the reading and spelling tests to her, explaining that he had Ms. Ebarb verbally spell the words for the spelling test. Ms. Ebarb graduated from high school but testing established that she reads on an eighth grade level and spells at a sixth grade level. Her scores also established that her mental acuity had diminished since the 2019 testing. Mr. Hebert testified that Ms. Ebarb's prior jobs had all been unskilled heavy and medium physical labor and that as a former laborer, she has no transferable skills. He also pointed out that she has no computer skills and never worked with individuals.

Based on the 2019 Functional Capacity Evaluation, Mr. Hebert opined that due to her back and associated leg pain, the only work Ms. Ebarb is physically and mentally capable of performing is sedentary, which increases her pain. He also explained that her pain and cognitive abilities together with the medications she takes for her pain, depression, and anxiety further limit her ability to perform sedentary work because they affect her ability to concentrate.

In light of her advanced age of fifty-eight at trial, Mr. Hebert testified that Ms. Ebarb is not a candidate for any type of rehabilitation services or vocational training. In reaching these conclusions, he also cited her medications and ongoing medical treatment for her back pain as deterrents for potential employers. His testimony was not rebutted.

Ms. Ebarb testified that her pain regularly increases and decreases with no clear cause for the changes. She described episodes of falling without warning. She explained that her back pain causes her back and legs to give out and she falls. One fall resulted in a broken rib. She testified that the frequency of her falls was increasing, and Dr. Lau's records confirm her testimony and show that she had fallen when showering.

Our review of the evidence and the WCJ's reasons for ruling establish that Ms. Ebarb proved by a preponderance of the evidence that her disability related to her back injury increased following the 2019 hearing. Accordingly, this assignment of error lacks merit.

Non-Work-Related Conditions

Boise argues that the WCJ improperly considered factors that are not applicable to a claim alleging permanent total disability. It cites Miller v. Roger Miller Sand, Inc., 94-1151, p. 6 (La. 11/30/94), 646 So.2d 330, 334, where the supreme court determined that when “an unrelated medical event” worsens a claimant's condition such that she is “completely and totally disabled ․ does not negate the fact that the work injury left [claimant] with some form of disability.” In such cases, the employer must pay for the disability caused by claimant's work-related injury, but it is not liable for the increased disability caused by the claimant's subsequent non-work-related injury. Consequently, a determination must be made regarding the disability caused by the claimant's work-related injury, “giving no consideration to any additional disability caused by the [non-work related injury].” Id. at 335.

Boise asserts that Ms. Ebarb did not prove she is now permanently, totally disabled. “Total disability, whether permanent or temporary, means the inability to engage in any gainful occupation, whether or not it is the same or one similar to that in which the employee was customarily engaged when injured. La.R.S. 23:1221(1)(a) and (2)(a)[.]” Quave v. Airtrol, Inc., 11-1182, p. 3 (La.App. 1 Cir. 6/8/12), 93 So.3d 733, 736. A workers’ compensation claimant who seeks permanent total disability benefits must prove by “clear and convincing evidence, unaided by any presumption of disability,” that she is “physically unable to engage in any employment or self-employment, regardless of the nature or character” of the work. La.R.S. 23:1221(2)(c). “To satisfy this burden of proof requires introducing objective medical evidence supporting the existence of a disabling condition.” Johnson v. T.K. Stanley, Inc., 00-1000, p. 9 (La.App. 3 Cir. 2/28/01), 781 So.2d 760, 766 (footnote omitted).

Following Johnson, the supreme court decided Comeaux v. City of Crowley, 01-32, p. 12 (La. 7/3/01), 793 So.2d 1215, 1222, where it “construe[d] [La.R.S.] 23:1226, [as] mandating an attempt at rehabilitation before a finding of permanent total disability is made, in pari materia with [La.R.S.] 23:1221(2)(c), defining permanently, totally disabled.” In reaching this conclusion, the court determined “it would defy logic and render La.R.S. 23:1226 meaningless to exclude from consideration the employee's inability to be educated or retrained in determining if such an employee is permanently, totally disabled.” Id. Continuing, the court further observed that “while lack of education alone is not sufficient to establish permanently, totally disabled, lack of education combined with lack of ability to be educated should not serve as a bar to permanently, totally disabled status.” Id. (citing Anthony v. Georgia Pacific Corp., 589 So.2d 47 (La.App. 1 Cir. 1991), writ denied, 594 So.2d 895 (La.1992)). In Anthony, the first circuit rejected the argument that it was error to consider the claimant's lack of education and low intellectual capacity and any physical limitations caused by his back injury when determining permanently, totally disabled status.

At trial, Ms. Ebarb was fifty-eight years old with back pain that radiates into her legs and limits her ability to sit, stand, walk, and concentrate. Expert evidence established that physically, she is limited to sedentary work, but she does not have the necessary skills to perform sedentary work or the mental capacity to be retrained to do so. Boise did not rebut any of this evidence. Accordingly, we affirm the WCJ's finding that Ms. Ebarb proved by clear and convincing evidence that she is permanently, totally disabled.

DISPOSITION

For the reasons stated above, judgment of the Workers’ Compensation Judge is affirmed. All costs are assessed to Boise Cascade Company.

AFFIRMED.

FOOTNOTES

1.   WCJ's May 16, 2025 reasons for ruling citing the 2019 Functional Capacity Evaluation report introduced at the 2019 hearing.

PICKETT, Chief Judge.