author: WEIMER, Justice.

text:
    Shirley STINER v. ANTONI’S ITALIAN CAFÉ.
    No. 2003-C-0209.
    Supreme Court of Louisiana.
    Oct. 21, 2003.

      Dennis R. Stevens, Gibbens & Stevens, New Iberia, for Applicant.
    Jason E. Fontenot, Brian C. Colomb, Doucet & Speer, Lafayette, for Respondent.
   WEIMER, Justice.

The limited issue before this court is whether use of the word “denial” in a statutorily mandated notice contained on a medical history questionnaire is sufficient to advise a potential employee that failure to truthfully answer the questions may result in forfeiture of any right to future workers’ compensation benefits. A writ of certiorari was granted to resolve a split in the circuits.

For reasons that follow, we conclude use of the word denial provides sufficient notice to an employee that untruthful answers on the medical history questionnaire may result in forfeiture of future benefits. The decisions of the lower courts granting and affirming claimant’s motion for summary judgment are reversed. The matter is remanded to the Office of Workers’ Compensation, District 4, for further proceedings in conformity with the views expressed in this opinion to determine whether claimant has forfeited the right to benefits.

| .FACTS AND PROCEDURAL BACKGROUND

Shirley Stiner was employed by Antoni’s Italian Café as a cook and kitchen helper. While cleaning a range top hood on July 21, 2001, she fell from a ladder sustaining injury to her back, neck and stomach. Indemnity benefits and medical treatment were provided until September 4, 2001, at which time the employer terminated benefits claiming Ms. Stiner provided false information regarding previous injuries on a Medical History Questionnaire completed on October 1, 1999. The employer based its decision on the provisions of LSA-R.S. 23:1208.1 which provide for forfeiture of benefits if an employee fails to truthfully answer a medical questionnaire regarding previous injuries, disabilities, or other medical conditions and such untruthfulness causes prejudice to the employer.

In response to the termination of benefits, Ms. Stiner filed a motion for summary judgment asserting that language used in the questionnaire failed to satisfy the notice requirements of the statute thus rendering the form invalid. The motion for summary judgment was based on the decision rendered in Louisiana Workers’ Compensation Corporation v. Grayson, 99 230 (La.App. 3 Cir. 10/13/99), 746 So.2d 121.

Following a hearing on the motion for summary judgment, the workers’ compensation judge granted summary judgment in favor of the employee in conformity with the holding in Grayson. Because the workers’ compensation judge determined that the notice was inadequate, issues as to whether the allegedly untruthful answer(s) directly related to the medical condition for which a claim for benefits was made or affected the employer’s ability to receive reimbursement from the second injury fund were not considered. See LSA-R.S. 28:1208.1. The employer appealed.

LOn appeal, the third circuit relied on decisions rendered in Grayson, supra, and City of Eunice v. Carrier, 01-1184, (La.App. 3 Cir. 2/20/02), 821 So.2d 3. In Grayson, the court examined the notice requirement of the statute and held that use of the term “denial” instead of the term “forfeiture” in the notice did not adequately place an employee on notice that loss of compensation benefits may be imposed as a penalty for a false statement on the medial history questionnaire. Because the court held the notice deficient, an essential element of the statute had not been met. Grayson, 99-230 at 6, 746 So.2d at 124. Therefore, the court held the wording of the notice used by the employer in this case did not fulfill the notice requirements of LSA-R.S. 23:1208.1 and did not give Ms. Stiner the proper notice required by statute. Stiner v. Antoni’s Italian Café, 02-747 (LaApp. 3 Cir. 12/18/02), 839 So.2d 80, 82. Additionally, the court noted that forfeiture is a harsh remedy and, citing City of Eunice v. Carrier, 01-1184 at 4, 821 So.2d at 7, held the statute must be strictly construed.

Defendant, relying on the case of Boh Bros. Construction Co. v. Price, 2000-2233 (La.App. 4 Cir. 8/29/01), 800 So.2d 898, writ denied, 01-2623 (La. 12/14/01), 804 So.2d 634, in which the Fourth Circuit court of appeal held that a notice using the word “denial” rather than “forfeiture” provided sufficient warning of the consequences for failure to answer questions truthfully, sought a writ of certiorari with this court to resolve the split between the third and fourth circuits. This court granted the writ of certiorari. Stiner v. Antoni’s Italian Café, 03-0209 (La.4/4/03), 840 So.2d 1209.

DISCUSSION

Prior decisions of the third and fourth circuit courts of appeal reached opposite results on the issue of whether use of the word “denial” in the notice required pursuant 14to LSA-R.S. 23:1208.1 was sufficient to warn an employee of the consequences of a failure to truthfully answer a medical history questionnaire presented by the employer.

The notice language at issue in Grayson read as follows: “I certify that the above answers are true, and understand that any false or misleading statements may be reason for denial of workers’ compensation benefits and/or termination of employment.” Grayson, 99-230 at 5, 746 So.2d at 123. The workers’ compensation judge considered the definitions of denial and forfeiture. While acknowledging that the distinction between the two may not seem great, the court found the distinction to be quite significant in the context of the forfeiture provision. The court found a reasonable claimant would not view risk of denial of benefits as an absolute bar to receipt of benefits. The third circuit court of appeal agreed and affirmed the judgment. The third circuit found that the word forfeiture connotes “a destruction of a right and a ‘taking away’ of property in connection with an illegal act.” The court found forfeiture implied serious legal consequences while denial did not. Grayson, 99-230 at 6, 746 So.2d at 124. Citing Wise v. J.E. Merit Constructors, Inc., 97-684 (La.1/21/98), 707 So.2d 1214, for the proposition that statutory forfeiture must be strictly construed, the court found use of “denial” in the notice required by LSA-R.S. 23:1208.1 was insufficient. Grayson, 99-230 at 6, 746 So.2d at 124.

The fourth circuit court of appeal considered a similar notice in the case of Boh Bros. Construction Co., which provided in bold-faced type: “I AM AWARE THAT FALSIFICATION OF ANY ANSWER WILL BE GROUNDS FOR MY IMMEDIATE DISMISSAL AND MAY RESULT IN DENIAL OF WORKERS’ COMPENSATION BENEFITS.” Boh Bros. Construction Co., 2000-2233 at 5, 800 So.2d at 901-902. The workers’ compensation judge found Boh Brothers failed to | ^establish that the worker violated the statute. The fourth circuit disagreed, finding the employee had answered the questionnaire untruthfully.

The court then examined the notice to determine whether it complied with the statutory requirements. While acknowledging the distinct definitions of denial and forfeiture as well as their significance as outlined by the workers’ compensation judge and the court of appeal in Grayson, the fourth circuit declined to adopt that interpretation because the court found no indication the third circuit had considered the intended purpose of LSA-R.S. 23:1208.1 in arriving at its decision. Boh Bros. Construction Co., 2000-2233 at 9, 800 So.2d at 904.

In Resweber v. Haroil Construction Company, 94-2708, 94-3138 (La.9/5/95), 660 So.2d 7, this court considered the legislative history and intent of the anti-fraud provisions of the Louisiana Workers’ Compensation Act. LSA-R.S. 23:1208 and LSA-R.S.23:1208.1. This court noted that when LSA-R.S. 23:1208.1 was enacted in 1988, effective January 1, 1989, the statute did not contain a forfeiture provision. It merely granted an employer permission to inquire about previous workers’ compensation claims paid to an individual while employed by a previous employer. The statute concluded with the following statement: “[T]he employee shall answer truthfully.” However, the statute was amended in 1989, effective January 1, |fi1990, to include a forfeiture of benefits provision as well as a notice requirement. Resweber, 94-2708, 94-3138 at 8-9, 660 So.2d at 13.

In Resweber, this court reasoned that a notice provision was added because an employee completing a medical history questionnaire regarding prior medical history in connection with employment or at a time prior to an injury might not be fully aware of the consequences of being less than truthful. In this regard, the court held the notice requirement was based on “the timing of the statement and the context in which it [was] made.” Resweber, 94-2708, 94-3138 at 10, 660 So.2d at 13. The court added: “where the false statement is made at a time prior to any workers’ compensation claim, and arises in a context completely unrelated to workers’ compensation, an employee may not be aware of the full ramifications of giving a false statement and, accordingly, the legislature, in Section 1208.1, imposed a notice requirement in such a situation.” Resweber, 94-2708, 94-3138 at 10, 660 So.2d at 13-14.

Following the 1989 amendment, LSA-R.S. 23:1208.1 provides:

Nothing in this Title shall prohibit an employer from inquiring about previous injuries, disabilities, or other medical conditions and the employee shall answer truthfully; failure to answer truthfully shall result in the employee’s forfeiture of benefits under this Chapter, provided said failure to answer directly relates to the medical condition for which a claim for benefits is made or affects the employer’s ability to receive reimbursement from the second injury fund. This Section shall not be enforceable unless the written form on which the inquiries about previous medical conditions are made contains a notice advising the employee that his failure to answer truthfully may result in his forfeiture of worker’s compensation benefits under R.S. 23:1208.1. Such notice shall be prominently displayed in bold faced block lettering of no less than ten point type.

At issue in this matter is a determination of the adequacy of the notice provided to the claimant in the medical questionnaire completed at the time she was employed 17by the defendant. The form completed by Ms. Stiner consisted of three pages each of which contained a similar notice.

The statute requires that the employee be given notice that a failure to answer truthfully may result in a loss of benefits. Although the legislature did not mandate specific language to be used in the notice, the statute does specify the manner in which the notice must be given. The print and point type to be used for the notice is mandatory. The statute provides the notice “shall be prominently displayed in bold faced block lettering of no less than ten point type.” LSA-R.S. 23:1208.1. (Emphasis added.) Use of the word shall is mandatory. LSA-R.S. 1:3. Conspicuously absent is a requirement that the notice contain any specific language. Although the word forfeiture appears in the statute, there is nothing within the statute which mandates its |8use. The legislature is fully capable of specifying the exact verbiage or the precise form which must be used to fulfill a notice requirement if it so chooses. See LSA-R.S. 22:1406(D)(l)(a)(ii).

Because of a split in the circuits, this court is called upon to decide whether use of the word “denial” in the notice is sufficient to warn the employee of the consequences for untruthfulness. If we evaluate the words by reference to the dictionary, we note that both “denial” and “forfeiture” suggest negative consequences. Denial is defined as “[a] refusal or rejection” or “the refusal of something requested or desired,” “a statement that something is not true”. Forfeiture is defined as “[t]he loss of a right, a privilege, or property because of a crime, breach of obligation, or neglect of duty;” or “lose or be deprived of [something] as a penalty for wrongdoing.” BLACK’S LAW DICTIONARY, 445, 661 (7th ed.1999); THE NEW OXFORD AMERICAN DICTIONARY, 456, 664 (2001).

Truthfulness is an ethical obligation; no law should be necessary to command truthfulness. The law can appropriately prescribe the sanction for untruthfulness. In its initial version, LSA-R.S. 23:1208.1 mandated truthfulness, but prescribed no penalty. Thereafter, the provision was amended and a penalty was prescribed.

While a notice that tracks the language of the statute might be preferable, this court cannot hold that such language is mandatory because nothing in the statute mandates specific language. An employer is free to use the language of its choice in confecting the notice provided the consequences of the failure to answer truthfully are 19clear. Allowing an employer to choose the qualifying language does not grant an employer license to use language which would confuse or befuddle an employee. Neither is it license to use some form of legalese to ensnare an unsuspecting employee.

We have carefully considered the opinions of the third and fourth circuits and note the fact specific circumstances of each case may have influenced the decisions as rendered by the respective courts. The claimant in Grayson had strained his back on a job in February 1996. Although he was treated by a physician who placed him on light duty status for a very brief period of time, he never missed work or filed a compensation claim. In connection with his employment by Vernon Moving and Storage, Grayson completed a second injury fund questionnaire on which he indicated that he never had an injury or strain to his knee, back, or neck. During September 1997, he injured his back in a work related accident and filed a workers’ compensation claim. The workers’ compensation judge found Grayson provided false information on the form, but also found the notice on the form signed by Grayson deficient because it did not include the word forfeiture. Grayson, 99-230 at 4-5, 746 So.2d at 123.

By contrast, the claimant in the Boh Bros. Construction Co. case failed to disclose an earlier neck injury that required surgery and resulted in temporary partial disability, a workers’ compensation claim, unemployment for two and a half years, and a successful tort claim. Additionally, the claimant’s testimony that he had been released to work when he applied for employment with Boh Bros, was contradicted by that of his treating physician. Under these circumstances, the court found claimant’s failure to answer truthfully was significant and forfeiture was an appropriate remedy. The court held that use of denial in the notice was sufficient. Boh Bros. Construction Co., 2000-2233 at 11, 800 So.2d at 905.

| inBecause of the split in the circuits, we are required to focus on the language of the statute to determine the adequacy of the notice and to provide guidance as to what constitutes proper notice.

Claimant argues in this court that the statute is clear and unambiguous; therefore, a resort to legislative intent is wholly inappropriate. Claimant further suggests that the solemn expression of legislative will is circumvented by allowing the use of the word denial in the notice. According to the claimant, use of any word other than forfeiture fails to give the employee proper notice of the serious and severe consequences resulting from an untruthful answer on the medical history questionnaire.

However, we find the decision of the fourth circuit in Boh Bros. Construction Co. to be the better reasoned approach. Absent legislatively mandated language, use of denial in the notice provides an employee with sufficient warning of the consequences of not answering in a truthful manner. The word “denial” is short, simple, concise, and sufficiently clear to put an employee on notice that workers’ compensation benefits could be lost if the employee fails to answer the questionnaire truthfully and such untruthfulness causes prejudice to the employer. The form used in this case put the employee on notice that there were consequences in the nature of workers’ compensation benefits being denied, if the employee failed to answer truthfully. The employee was fully and adequately informed that a failure to answer truthfully could result in benefits being adversely impacted.

The statute provides for forfeiture under narrow circumstances. There must be an untruthful statement which causes prejudice to the employer and compliance with Inthe notice requirements of the statute. Wise, 97-684 at 7, 707 So.2d at 1218. An employer has the burden of proving each element. Failure to prove any one of the elements is fatal to the employer’s avoidance of liability for benefits. Id.

Because the workers’ compensation judge granted the motion for summary judgment after deeming the notice inadequate, the employer was not called upon to establish whether an untruthful statement by the employee prejudiced the employer. Considering the ruling of this court, the matter must be remanded to the Office of Workers’ Compensation, District 4, for a resolution of the other issues to determine whether Shirley Stiner’s benefits should be terminated.

CONCLUSION

We find that use of the word “denial” in the notice provided to Ms. Stiner was effective for purposes of the statute. For the foregoing reasons, the judgment of the workers’ compensation judge granting claimant’s motion for summary judgment and the opinion of the court of appeal affirming that judgment are reversed. The matter is remanded to the Office of Workers’ Compensation, District 4, for further review to determine whether claimant’s right to workers’ compensation benefits should be denied.

REVERSED; REMANDED.

      . For a discussion of issues related to forfeiture of benefits by employees who untruthfully answer a medical history questionnaire, see Nabors Drilling USA v. David Davis, 03-0136 (La. 10/21/03), 857 So.2d 407, decided this date.

        . In contrasting Sections 1208 and 1208.1, this court concluded that Section 1208 was clear and unambiguous as written and that the requirements for a Section 1208 forfeiture were a false statement or representation, wil-fully made, for the purpose of obtaining or defeating any benefit or payment. The court found it clear from the legislative history that the legislature intended that any false statement or representation wilfully made for the purpose of obtaining benefits would result in forfeiture of those benefits. No notice is required for forfeiture under Section 1208. Resweber, 94-2708, 94-3138 at 7, 660 So.2d at 12.

      . LSA-R.S. 23:1208.1 as enacted in 1988 read as follows:
      Nothing in this Title shall prevent an employer from inquiring about previous worker's compensation claims paid to the employee while said individual was employed by a previous employer, and the employee shall answer truthfully.

      . One page entitled MEDICAL HISTORY QUESTIONNAIRE informed the prospective employee of the purpose of the inquiry into previous medical history and advised that the information gathered would be kept confidential in a separate medical file apart from the personnel file. Immediately above the line for the employee’s name, date, social security number and signature appeared the following notice:
      I FURTHER UNDERSTAND THAT THE FAILURE TO ANSWER TRUTHFULLY ANY OF THE MEDICAL QUESTIONS MAY RESULT IN A DENIAL OF ANY RIGHT I OR MY DEPENDENT(S) MAY HAVE TO WORKER’S COMPENSATION BENEFITS, INCLUDING MEDICAL TREATMENT AND EXPENSES. IN ADDITION, ANY FALSE STATEMENTS ON THIS DOCUMENT IS [SIC] GROUNDS FOR IMMEDIATE TERMINATION OR OTHERWISE APPROPRIATE DISCIPLINARY ACTION, PURSUANT TO LSA-R.S. 23:1208.1.
      A second page, also entitled MEDICAL HISTORY QUESTIONNAIRE, included a listing of 32 conditions for which the employee was to indicate YES or NO as to whether he/she currently had or previously suffered any of the conditions. A YES answer required further clarification as to the nature of the condition or injury, treatment received and the name of the doctor providing the treatment. This page also contained a signature line for the employee as well as a notice which read as follows:
      PURSUANT TO LSA-R.S. 23:1208.1, THE FAILURE TO ANSWER TRUTHFULLY ANY OF THE QUESTIONS BELOW MAY RESULT IN A DENIAL OF ANY RIGHT YOU OR YOUR DEPENDENT(S) MAY HAVE TO WORKERS' COMPENSATION BENEFITS, INCLUDING MEDICAL TREATMENT AND EXPENSES.
      A third page, also entitled MEDICAL HISTORY QUESTIONNAIRE, consisted of 9 questions followed by a notice which read as follows:
      PURSUANT TO LSA-R.S. 23:1208.1, I UNDERSTAND THAT THE FAILURE TO ANSWER TRUTHFULLY ANY OF THE ABOVE QUESTIONS MAY RESULT IN A DENIAL OF ANY RIGHT I OR MY DEPENDENT® MAY HAVE TO WORKER'S COMPENSATION BENEFITS, INCLUDING MEDICAL TREATMENT & EXPENSES.
      I HAVE READ IN ENTIRETY AND FULLY UNDERSTAND THE ABOVE.

        The above was followed by a signature and date line which the employee signed and dated.

      . LSA-R.S. 22:1406(D)(l)(a)(ii) provides in pertinent part:
      After September 1, 1987, such rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance.

      . Justice Robert Jackson said the dictionary is the last resort of the baffled judge.” See Jordan v. DeGeorge, 341 U.S. 223, 234, 71 S.Ct. 703, 709, 95 L.Ed. 886 (1951). Dictionaries are a valuable source for determining the "common and approved usage” of words. Gregor v. Argenot Great Central Insurance Company, et al, 02-1138, p. 7 (La.5/20/03), 851 So.2d 959, 964.

      . We note the notice provided not only specifically referenced the applicable statute, but also advised the employee on each and every page of the questionnaire that workers’ compensation benefits, including medical treatment and expenses, could be denied due to untruthful responses. In the context of completing an employment questionnaire, the fine line distinctions between forfeiture and denial would escape all but a grammarian armed with a dictionary. Whether due to a denial or a forfeiture, the ultimate result is the same-benefits are not received.


source: Caselaw Access Project

license: Public Domain

text:
    NABORS DRILLING USA v. David DAVIS.
    No. 2003-C-0136.
    Supreme Court of Louisiana.
    Oct. 21, 2003.

      Mark L. Riley, Lafayette, for Respondent.
    Michael B. Miller, Crowley, Miller & Miller, for Applicant.
   WEIMER, Justice.

We granted certiorari in this case to review the correctness of the court of appeal’s ruling ordering workers’ compensation benefits forfeited for a claimant’s failure to answer truthfully the employer’s medical history questionnaire concerning a prior injury. After carefully reviewing the record and the applicable law, we conclude that under the circumstances of this case, the court of appeal erred in ordering the forfeiture because there was no proof the employer suffered any prejudice as statutorily required. Accordingly, we reverse the judgment of the court of appeal and reinstate the judgment of the workers’ compensation judge dismissing the demand of the employer seeking to terminate benefits pursuant to LSA-R.S. 23:1208.1.

FACTS AND PROCEDURAL HISTORY

On January 18, 1994, claimant, David Davis, was working for Petro Star Corporation when he injured his right shoulder and right knee while lifting 100 pound mud sacks. He began treatment with Dr. John Cobb, an orthopedic surgeon, who diagnosed him with impingement tendinitis of the rotator cuff with hypertrophy of the distal clavicle and the acromion. Surgery was recommended, and in September 1994, Dr. Cobb performed a partial acromionee-tomy, a resection of the distal clavicle, a ^resection of the coracoacromial ligament and an exploration of the cuff. Davis eventually returned to work, but not, apparently, without difficulty. In a follow-up examination on November 20, 1995, Dr. Cobb noted that Davis had returned to performing fairly substantial work with his shoulder. According to Dr. Cobb: “[Davis] says he has been pulling slips and trying to work, but based on his problem with the clavicle and the pin that he has, I don’t think that this is a reasonable thing for him to be doing. I think it is aggravating his pain and he may even be getting some degree of sealine spasm, which is causing the paresthesias. He is going to have to resolve to do primarily light type work activities and not return to this unrestricted work that he is doing at the present time.” When Davis reported for a further examination on March 6, 1996, Dr. Cobb remarked: “[Davis] is going to try to do some shrimping, get his own boat. I think this is reasonable, where he doesn’t have to overuse his shoulder and his arm, where he can actually rest it. I think he can do the work satisfactorily. I think working on the rigs, primarily handling the slips was what was causing his problem.”

In May 1996, Dr. G. Gregory Gidman, an orthopedist, rendered a second medical opinion, in which he assigned Davis a 10% impairment of the upper extremity, which equates to a 6% impairment of the whole person, and recommended that Davis restrict his lifting to a medium level, performing heavy lifting occasionally, but not on a repetitive basis.

Approximately four years later, on September 28, 2000, Davis began working for Nabors Drilling USA as a floor hand on a Nabors drilling rig. As part of his employment with Nabors, Davis was asked to complete a medical history questionnaire. The questionnaire contained the following:

NOTICE: YOUR FAILURE TO ANSWER TRUTHFULLY ANY QUESTIONS ABOUT PREVIOUS INJURIES, DISABILITIES OR OTHER MEDICAL CONDITIONS MAY RESULT IN FORFEITURE EOF WORKERS’ COMPENSATION BENEFITS UNDER LSA R.S. 23:1208.1.

In answering the inquiries posed by the questionnaire, Davis responded negatively to the questions “Have you ever had surgery?” and “Have you ever had an injury or illness as a result of your job or work?” These responses were, obviously, untruthful.

Davis worked for Nabors from September 28, 2000, until November 14, 2000, without incident. On the latter date, Davis was performing his regular duties, pulling drill slips, when he felt a pop in his back and experienced a burning and pulling sensation in his low back radiating into the right leg. "When the situation did not resolve itself by the next day, he reported the incident and sought medical treatment. He began seeing Dr. Cobb, among other physicians. Dr. Cobb requested an MRI and EMG. The MRI of the lumbar spine revealed a disc herniation at the L5-S1 level, and the EMG revealed right L5 radi-cular changes. Dr Cobb recommended surgery. In addition, he spoke to Davis “about the implications of him returning to the oil field, that he would have to get something lighter.”

On August 6, 2001, Nabors filed a disputed claim for compensation seeking a determination that, pursuant to LSA-R.S. 23:1208.1, Davis has forfeited his right to workers’ compensation benefits for his failure to answer truthfully the medical history questionnaire (commonly referred to in the workers’ compensation arena as the “second injury fund questionnaire”) regarding his prior shoulder injury. According to Nabors, Davis’ failure to disclose his preexisting medical condition prejudiced Nabors’ right to receive Second Injury Fund reimbursement for Davis’ current injuries, resulting in the forfeiture of his right to benefits under the Louisiana Workers’ Compensation Act.

The matter was tried on stipulations and documentary evidence on April 4, 2002. At the conclusion of the hearing, the workers’ compensation judge determined |4that Nabors failed to prove a merger between the two work injuries and, as a result, failed to prove prejudice to the employer’s right to receive reimbursement from the Second Injury Fund. Accordingly, the workers’ compensation' judge signed a judgment dismissing Nabors’ demand seeking to terminate benefits under LSA-R.S. 23:1208.1.

Nabors appealed, and the court of appeal reversed. Nabors Drilling USA v. Davis, 02-0751 (La.App. 3 Cir. 12/11/02), 833 So.2d 534. In an opinion issued December 11, 2002, the court of appeal first determined that the workers’ compensation judge was clearly wrong in her factual conclusions with respect to the issue of merger. The court found that the evidence introduced by Nabors established a sufficient merger between Davis’ prior and current injuries to satisfy the requirements of LSA-R.S. 23:1371(0(2). The court of appeal then determined that because Nabors had no knowledge of the preexisting permanent partial disability, it could not seek reimbursement from the Second Injury Fund and thus has been prejudiced by Davis’ failure to answer truthfully the medical history questionnaire. Under these circumstances, the court of appeal held that Nabors is entitled to have Davis’ workers’ compensation benefits forfeited.

Upon claimant’s application, we granted certiorari to review the correctness of the ruling of the court of appeal ordering the forfeiture of Davis’ right to receive workers’ compensation benefits. Nabors Drilling USA v. Davis, 03-0136 (La.4/4/03), 840 So.2d 1209.

LAW AND DISCUSSION

In order “to encourage the employment of physically handicapped employees who have a permanent, partial disability by protecting employers ... from excess liability for workers’ compensation for disability [which may result] when a subsequent injury to such an employee merges with his preexisting permanent physical disability |Kto cause a greater disability than would have resulted from the subsequent injury alone,” the legislature created the Second Injury Fund. LSA-R.S. 23:1371(A). An employer who “knowingly employs or knowingly retains in his employment” an employee who suffers from a permanent partial disability as defined by the statute is entitled to be reimbursed from the fund if that employee “incurs a subsequent injury arising out of and in the course of his employment resulting in liability for disability due to the merger of the subsequent injury with the preexisting permanent partial disability.” LSA-R.S. 23:1378(A)(1).

In order to assist the employer in meeting its statutory burden of establishing that it “knowingly” hired a worker with a preexisting permanent partial disability so as to qualify for reimbursement from the second injury fund, LSA-R.S. 23:1208.1 permits the employer to obtain medical information from an employee or job applicant concerning preexisting conditions. The same statute that permits this inquiry also states that the employee’s failure to answer the employer’s inquiry truthfully shall result in the forfeiture of workers’ compensation benefits provided certain enumerated circumstances are met. Louisiana Revised Statute 28:1208.1 states:

Nothing in this Title shall prohibit an employer from inquiring about previous injuries, disabilities, or other medical conditions and the employee shall answer truthfully; failure to answer truthfully shall result in the employee’s forfeiture of benefits under this Chapter, provided said failure to answer directly relates to the medical condition for which a claim for benefits is made or affects the employer’s ability to receive reimbursement from the second injury fund. This Section shall not be enforceable unless the written form on which the inquiries about previous medical conditions are made contains a notice advising the employee that his failure to answer truthfully may result in his forfeiture of worker’s compensation benefits under R.S. 23:1208.1. Such notice shall be prominently displayed in bold faced block lettering of no less than ten point type. [Emphasis added.]

Forfeiture is a harsh remedy; therefore, statutory forfeiture provisions such as LSA-R.S. 23:1208.1 must be strictly construed. Wise v. J.E. Merit Constructors, Inc., 97-0684 (La.1/21/98), 707 So.2d 1214, 1218. By its express terms, LSA-R.S. [ fl23:1208.1 provides for forfeiture under three circumstances. There must be (1) an untruthful statement; (2) prejudice to the employer; and (3) compliance with the notice requirements of the statute. Id., citing Resweber v. Haroil Const. Co., 94-2708, 94-3138 (La.9/5/95), 660 So.2d 7. The employer has the burden of proving each of the elements required by the statute. Wise, 707 So.2d at 1218. The lack of any one of the elements is fatal to the employer’s avoidance of liability under the statute. Id.

As we noted in Wise, 707 So.2d at 1219, untruthful answers alone do not result in the forfeiture of benefits under LSA-R.S. 23:1208.1. The employer must also prove that it provided the employee with notice comporting with the dictates of the statute. Notice is not an issue in this case.

In addition to the notice requirement, the legislature has decided to specifically impose a requirement that the untruthful statement concerning a prior injury will result in forfeiture of benefits only when the false statement causes prejudice to the employer. Louisiana Revised Statute 23:1208.1 states: forfeiture only occurs “provided said failure to answer directly relates to the medical condition for which a claim for benefits is made or affects the employer’s ability to receive reimbursement from the second injury fund.” See Resweber, 660 So.2d at 16. This proviso strikes a careful balance. It reflects the legislature’s recognition of the harshness of the forfeiture penalty and attempts to ameliorate the harshness of that penalty for the individual who is simply in the position of trying to obtain or maintain gainful employment, while at the same time preserving the goal of the second injury fund, which is to enhance employment opportunities for those who have been previously disabled. Thus, it is not every untruthful statement on a medical history questionnaire that will result in the forfeiture of workers’ compensation benefits for a subsequent work-related injury. It is only |7those statements that rise to the level of meeting the statutory proviso of LSA-R.S. 28:1208.1 that will subject the employee to forfeiture.

The “prejudice” that must be incurred by the employer for forfeiture to apply is specifically defined by the statute. The untruthful statement must directly relate[ ] to the medical condition for which a claim for benefits is made,” or it must “affect[ ] the employer’s ability to receive reimbursement from the second injury fund.” LSA-R.S. 23:1208.1. The first prong of the prejudice test — that the employee’s untruthful answer “directly relate” to the medical condition that is the subject of the claim — is not at issue in this case. The parties do not contend, nor was any evidence submitted to establish, that Davis’ back injury was inevitable or very likely to occur because of the presence of the preexisting shoulder condition. See, Wise, 707 So.2d at 1220, wherein the “directly relates” prong of the “prejudice” requirement is more thoroughly discussed.

It is the second prong of the “prejudice to the employer” test that is at issue in this case. This second prong requires that the employee-s answer to the employer’s ,medical history questionnaire “affect[] employer’s ability to receive reimbursement from the second injury fund.” LSA-R S 23T208 1

To determine the effect on the employer’s right to collect from the second injury fund, we must evaluate LSA-R.S. 23:1378(A) which provides that an employer shall be reimbursed from the second injury fund when the employer “knowingly employs or knowingly retains in his employment an employee who has a permanent partial disability,” as defined by the statute. However, reimbursement is limited to those situations where the permanent partial disability “merges” with a subsequent injury “to cause a greater disability than would have resulted from the subsequent injury alone.” LSA-R.S. 23:1371(A).

As we explained in Wise, supra, an employer’s right to reimbursement is not automatic. The employer is not entitled to reimbursement from the second injury fund merely because an employee with a pre-existing disability is subsequently injured. The employer has the burden of proving each element entitling him to reimbursement. Wise, 707 So.2d at 1220, citing Commercial Union Insurance Co. v. Workers’ Compensation Second Injury Board, 94-1202 (La.App. 3 Cir. 3/1/95), 651 So.2d 933. Thus, to be reimbursed from the second injury fund, an employer must prove three elements. Id. First, the employer must prove that the employee had a permanent partial disability satisfying the requirements of LSA-R.S. 23:1378(F), i.e. that the employee’s preexisting condition is of “such seriousness as to constitute a hindrance or obstacle to obtaining employment or to obtaining reemployment if the employee should become unemployed.” Second, the employer must prove that he had actual knowledge of the employee’s permanent partial disability before the occurrence of the injury forming the basis of the compensation claim. LSA-R.S. 23:1378(A)(4); Chandler Parts and Service, Inc. v. Louisiana Worker’s Compensation Second | Jinjury Board, 576 So.2d 1133 (La.App. 3 Cir.), writ denied, 580 So.2d 383 (La.1991). Finally, the employer must prove that the permanent partial disability merged with the injury to produce a greater disability. LSA-R.S. 23:1371(A); LSA-R.S. 23:1378(A); Wise, 707 So.2d at 1220.

In the instant case, Nabors argues that its rights were prejudiced because Davis failed to disclose the prior shoulder surgery and that non-disclosure deprived Nabors of knowledge and thus the opportunity to seek reimbursement from the second injury fund. In order to prevail in this contention, it was incumbent upon Na-bors to prove that but for Davis’ nondisclosure, it would have been entitled to receive reimbursement from the second injury fund. In this regard, Nabors was required to 11f>prove that Davis had a permanent partial disability satisfying the requirements of LSA-R.S. 23:1378(F), and that this permanent partial disability merged with the subsequent back injury to produce a greater disability. LSA-R.S. 23:1871(A) and (C).

Neither court below had difficulty concluding that Davis’ preexisting shoulder condition constituted a permanent partial disability within the meaning of LSA-R.S. 23:1378(F). However, the lower courts differed in their conclusions with respect to the issue of merger. The workers’ compensation judge ruled that the evidence introduced by Nabors was not sufficient to prove a merger between Davis’ shoulder disability and his subsequent back injury. The court of appeal reversed, finding a sufficient merger between Davis’ prior and subsequent injuries to satisfy the requirements of LSA-R.S. 23:1371(0(2). We review the factual conclusions of the workers’ compensation judge, including those relating to the sufficiency of the evidence, for manifest error. Ambrose v. New Orleans Police Dept. Ambulance Service, 93-3099, 93-3110, 93-3112 (La.7/5/94), 639 So.2d 216, 221; Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94), 630 So.2d 706.

One of the key elements for establishing second injury fund reimbursement is proof that the employee suffered from a preexisting permanent partial disability. A permanent partial disability is defined in LSA-R.S. 23:1378(F) as follows:

As used in this Part, permanent partial disability means any permanent condition, whether congenital or due to injury or disease, of such seriousness as to constitute a hindrance or obstacle to obtaining employment or to obtaining reemployment if the employee should become unemployed.

In Subsection “F” of LSA-R.S. 23:1378 goes on to provide for a presumption of permanent partial disability when the disease or preexisting condition is one of thirty conditions enumerated in the statute. A rotator cuff injury is not included within this list. Although not listed as one of the enumerated conditions presumptively considered to be a preexisting permanent partial disability under LSA-R.S. 23:1378(F), a medical condition may still be proved in court to be a permanent partial disability. King v. Grand Cove Nursing Home, 93-779 (La.App. 3 Cir. 3/9/94), 640 So.2d 348, 351, writ denied, 94-0865 (La.5/13/94), 641 So.2d 204.

As noted above, the lower courts had no difficulty in concluding that Davis’ preexisting shoulder injury constitutes a permanent partial disability within the meaning of LSA-R.S. 23:1378(F), unaided by the statutory presumption. That conclusion is not clearly wrong, but is, in fact, amply supported by the record evidence.

The medical records of Dr. Cobb, the orthopedist who performed Davis’ rotator cuff surgery, reflect that following his surgery, Davis was cautioned against returning to work on the rigs. Dr. Gidman, an orthopedist retained to complete a functional disability evaluation of Davis, opined that “[e]ven though he demonstrated the ability to work at a heavy level both isometrically and dynamically, because of the extensive nature of the surgery to his shoulder and the fact that the rotation cuff, although not torn ... did show some fraying and degeneration, [Davis] should limit his activities with the right upper extremity to medium level activity.” Dr. Gidman assigned Davis a 10% impairment of the upper extremity, or a 6% impairment of the whole person.

The medical records of Dr. Cobb and Dr. Gidman are sufficient to establish the existence of a permanent partial disability. Both physicians issued reports cautioning Davis against returning to the very work he pursued with Nabors, a job that required repetitive heavy lifting. The impairment rating assigned by Dr. Gidman— 10% of the Supper extremity or 6% of the whole person — coupled with the restrictions against heavy lifting issued by Davis’ physicians, constitute evidence of a permanent condition “of such seriousness as to constitute a hindrance or obstacle to obtaining employment” in the oilfield, or in any profession requiring heavy manual labor. Nabors thus met its burden of proving that Davis had a preexisting permanent partial disability within the meaning of LSA-R.S. 23:1378(F).

Having proved that Davis suffered from a preexisting permanent partial disability, it was nonetheless incumbent upon Nabors to also establish that Davis’ permanent partial disability “merged” with his subsequent back injury “to cause a greater disability than would have resulted from the subsequent injury alone.” LSA-R.S. 23:1371(A). Not every subsequent injury to a previously disabled employee will entitle an employer to seek second injury fund reimbursement. There must be a “merger” of the prior disability and subsequent injury, as that term is defined by statute.

According to LSA-R.S. 23:1371(C), the “merger” of an injury with a preexisting permanent partial disability for purposes of second injury fund reimbursement is limited to the following:

(1) The subsequent injury would not have occurred but for the preexisting permanent partial disability; or
(2) The disability resulting from the subsequent injury in conjunction with the preexisting permanent partial disability is materially and substantially greater than that which would have resulted had the preexisting permanent partial disability not been present, and the employer has been required to pay and has paid compensation for that greater disability.

The use of the word “merger” in this context is somewhat of a misnomer, as the statutory definition of the term applies to situations not within the ordinary meaning of the word “merger.” 13 Wex S. Malone & H. Alston Johnson, III, LouisianaJ^Civil Law TREATISE: WORKERS’ COMPENSATION Law and Praotioe § 234 at 518 (2002).

As defined by LSA-R.S. 23:1371(C), “merger” has two components. The first, commonly known as “but for” merger (“the subsequent injury would not have occurred but for the preexisting permanent partial disability”), is not at issue in this case. The second definition requires a two prong showing: (1) the disability resulting from the conjunction of the prior and subsequent injuries must be materially and substantially greater than that which would have resulted had there been no prior injury; and (2) the employer must have been required to pay and must have actually paid compensation for that greater disability. See, Fidelity & Casualty Company of New York v. State, Louisiana Worker’s Compensation Second Injury Board, 94-0432 (La.App. 1 Cir. 12/22/94), 648 So.2d 1054, 1055, writ denied, 95-0554 (La.4/21/95), 653 So.2d 570.

In the instant case, Nabors attempted to meet its burden of proving statutory “merger” by introducing into evidence a series of letters between counsel for Na-bors and Dr. Cobb, Davis’ treating physician. In the first letter, dated May 10, 2001, counsel for Nabors requested Dr. Cobb’s opinion regarding whether “as a result of having had the prior shoulder surgery Mr. Davis will have a greater disability as a result of a combination of the shoulder and the lumbar injury than he would have had solely from the lumbar injury alone.” Dr. Cobb responded by letter dated June 12, 2001, as follows: “It always seems a bit confusing to me regarding the Second Injury Fund, but lubased on what I understand from your correspondence, if he has a gréater disability resulting from a combination of the shoulder and lumbar injuries than he would have had simply from the lumbar, I would agree that this patient would meet the criteria for reimbursement from the Second Injury Fund.” In a letter dated June 25, 2001, counsel for Nabors attempted to clarify Dr. Cobb’s response. On July 26, 2001, Dr. Cobb responded by letter, stating: “I ... would certainly agree that he would have greater disability with the combined shoulder injury and lumbar injury.”

In denying Nabors’ request for forfeiture, the workers’ compensation judge remarked: “While Dr. Cobb’s letter establishes that there is a greater disability because there are two disabilities, it does not address any merger between the two, and I think that needs to be present. And therefore, I am denying the 1208.1 forfeiture request.” On review, the court of appeal reversed, finding clear error in the workers’ compensation judge’s factual conclusions. Relying on Southland Corp. v. State, Workers’ Compensation, Second In jury Board, 593 So.2d 956 (La.App. 4 Cir. 1992), the court of appeal ruled: “[I]n the instant case, common sense indicates that Davis, who already has a 6% impairment rating to the body as a whole, is materially and substantially more disabled with the herniated disc added to his already impaired body. Further, ... Dr. Cobb stated that Davis would have a greater disability with the combined injuries. There is no contrary evidence in the record. Thus, the evidence does establish that there exists a sufficient merger between Davis’ subsequent and prior injuries to satisfy the requirements of LSA-R.S. 23:1371(0(2).” Nabors, 833 So.2d at 537.

Relying solely on the correspondence from Dr. Cobb opining that Davis has a “greater disability with the combined shoulder injury and lumbar injury,” the court of appeal determined that the statutory definition of merger embodied in LSA-R.S. 23:1371(0(2) had been satisfied. We disagree. Although not adopting the reasoning |1Rof the workers’ compensation judge, we find that her determination that Nabors failed to satisfy its burden of proving “merger” within the meaning of LSA-R.S. 23:1371 is correct.

We begin our analysis, as we must, with the language of the statute at issue. Dumas v. State, Department of Culture, Recreation & Tourism, 2002-0563 (La.10/15/02), 828 So.2d 530, 536. Mindful of the principle that the term “merger” should be liberally construed to effectuate the purpose of the second injury fund, we cannot ignore the express language adopted by the legislature in drafting the statute. See, LSA-C.C. art. 9; 13 Malone & Johnson, § 234 at 518, citing Southern Casualty Insurance Company v. Louisiana Workmen’s Compensation Second Injury Board, 478 So.2d 573 (La.App. 2 Cir.1985).

In this connection we note that under LSA-R.S. 23:1371(0(2), a “merger” occurs not when the disability resulting from the subsequent injury in conjunction with the preexisting permanent partial is “greater” than that which would have resulted had the preexisting permanent partial disability not been present, but when the disability is “materially and substantially greater.” Two adverbs, “materially” and “substantially,” modify the adjective “greater.” Consequently, although Wo disabling injuries added together will in most instances produce a “greater” disability, it is not enough under the statute simply to “add up” the employee’s injuries. The statute contemplates a showing of more. Although the prior disability need not combine with the compensable injury in any special way, Southland Corp., 593 So.2d at 958, it must substantially augment the disability resulting from the compensa-ble injury. See, 5 LaRson’s WORKERS’ Compensation Law § 91.02[7] (2003).

|ifiAs noted above, the definition of “merger” embodied in LSA-R.S. 23:1371(0(2) contains a second prong: a showing that “the employer has been required to pay and has paid compensation for that greater disability.” In other words, in addition to establishing that the employee has sustained a “materially and substantially greater disability,” the statute expressly requires a showing by the employer seeking reimbursement that the benefits paid are greater in amount because of the preexisting disability. Fidelity & Casualty Company of New York, 648 So.2d at 1055. “Without the employer being required to pay and actually paying compensation for the combined, greater disability, merger is not recognized.” Id. at 1056.

The fact that LSA-23:1371(C)(2) requires a two-prong showing is entirely consistent with the stated goal of the second injury fund, which is to encourage the employment of handicapped individuals by relieving the employer of the excess compensation burden that may result when that handicapped individual sustains a subsequent work-related injury. LSA-R.S. 23:1371(A). Essential to' achieving this goal is a finding that the employer in fact has a greater compensation burden as a result of the employee’s preexisting disability. That is accomplished by a showing under LSA-R.S. 23:1371(0(2) that the employee has a “materially and substantially greater” disability because of the preexisting disability and (in the second prong of the “merger” test) that the employer has been required to pay, and has paid, for that greater disability.

The key, then, for demonstrating a “merger,” as that term is limited and defined in LSA-R.S. 23:1371(0(2), is a showing that the previously disabled employee who suffers a subsequent work-related injury has sustained a materially and substantially |17greater disability than that which would have resulted had the preexisting disability not been present, for which materially and substantially greater disability the employer will bear an increased compensation burden. This definition of “merger” excludes, for example, the situation in which the subsequent injury is of such severity that it would account for total permanent disability by itself, quite apart from any contribution by the preexisting disability. 13 Malone & John-soN, § 234 at 518 (2002); 5 LaRSOn’s WorkERS’ COMPENSATION Law § 91.02[8]. In such a situation, the employer does not pay any more for the disability resulting from the combination of the preexisting disability and the subsequent injury than it would had the prior disability not existed. It includes, however, by way of further example, a situation such as that presented in Southern Casualty Insurance Company, supra, where an employee’s back injury combined with his mental retardation to render the employee totally and permanently disabled. In that case, the court of appeal correctly reasoned:

We have little difficulty within the context of these facts in finding that the previous statutorily defined permanent partial disability, mental retardation, merged with the subsequent back injury to create a substantially greater disability. Whereas the back injury without the mental retardation, or the mental retardation without the back injury would not necessarily preclude Mr. Smith from obtaining employment, the superimposition of one disability upon the other renders Mr. Smith virtually unemployable. Such a construction of the term “merger” affects the most usual signification of the word. We therefore hold that the two injuries have “merged” within the meaning of the statute.

Southern Casualty Insurance Company, 478 So.2d at 577. See also, Willamette Industries, Inc. v. State Worker’s Compensation Second Injury Bd., 595 So.2d 1206, 1209 (La.App. 3 Cir.1992), writ denied, 600 So.2d 608 (La.1992) (wherein the court of appeal concluded that an employee’s ankle injury “merged” with his preexisting elbow injury, reasoning: “The ankle injury without the preexisting left upper extremity disability would not have preclude[d] Ro-disch from obtaining employment.... However, a combination of these injuries prevents Rodisch from participating in 11sgainful employment.”); Southland Corp., 593 So.2d at 958 (wherein the court of appeal found a merger between claimant’s herniated disc and preexisting disability— a single clubbed hand — on testimony from claimant’s physician that claimant was “ ‘more disabled with the back added to his previous problem which makes it more difficult for him to get a job, to work at some job in a meaningful way.’ ”).

In each of these aforementioned cases, there was a showing of a materially and substantially greater disability which resulted in an increased compensation burden for the employer, i.e., a showing that the employee could have continued to work with either injury alone, but the combination of the two injuries rendered him unemployable.

While each case must be considered on its particular facts, a review of the evidence in this case reveals that no comparable showing was made by Nabors. The court of appeal based its ruling exclusively on the letter from Dr. Cobb stating: “I ... would certainly agree that [Davis] would have greater disability with the combined shoulder injury and lumbar injury.” While Dr. Cobb’s letter does indicate that Davis will have a “greater” disability as a result of the combined injuries, it does not establish the extent of that “greater” disability. Neither does it indicate that this “greater” disability will result in an increased compensation burden for Na-bors, or that Nabors will be required to pay any additional sums for the treatment of Davis’ back injury as a result of his preexisting shoulder disability than it would have been required to pay had the shoulder disability not existed. See, e.g., Fidelity & Casualty Company of New York, supra, (evidence did not establish that preexisting foot disability merged with subsequent neck and back injury where physician testified that preexisting disability did not affect his treatment of claimant nor did it cause employer to incur any additional medical expenses); See also, City of Jennings v. Louisiana Workers’ Compensation Second Injury Board, 96-945 (La.App. 3 Cir. 2/5/97), 689 So.2d 618, 620-621 (evidence did not establish that preexisting diabetes “merged” with subsequent back injury where although testimony indicated there was a “greater” disability, testimony also indicated that diabetes was under control and did not affect employee’s treatment or recovery). Absent such evidence, the record does not demonstrate a “merger” of Davis’ back injury with his preexisting shoulder disability. Therefore, contrary to the court of appeal’s determination, Nabors failed to establish that it would have been entitled to second injury fund reimbursement and that Davis’ failure to answer truthfully the medical history questionnaire adversely impacts its ability to receive reimbursement. Because Nabors has failed to prove each element required by LSA-R.S. 23:1208.1, forfeiture under that statute is not warranted.

CONCLUSION

The legislation is difficult to decipher. To reach a final resolution numerous interrelated provisions must be evaluated. Each provision has various and sundry prongs/components/elements which in turn must be considered. Ultimately, the diligence employed in evaluating these various provisions results in the determination that an untruthful statement on a medical history questionnaire does not result in forfeiture of benefits unless the employer is prejudiced in its ability to obtain second injury fund reimbursement by virtue of a “merger” between the original and subsequent injury or unless the subsequent injury directly relates to the pre-existing injury.

Under the particular circumstances of this case, the court of appeal clearly erred in reversing the judgment of the workers’ compensation judge and in ordering the forfeiture of Davis’ workers’ compensation benefits. The judgment of the court of appeal is therefore reversed and the judgment of the workers’ compensation judge | ¡^dismissing Nabors’ demand seeking to terminate benefits pursuant to LSA-R.S. 23:1208.1 is hereby reinstated.

REVERSED.

      . We address the notice requirement of LSA-R.S. 23:1208.1 in a separate opinion issued this date, Stiner v. Antoni’s Italian Café, 03-0209 (La.10/21/03), 857 So.2d 400.

      . The "notice” and "prejudice” requirements of LSA-R.S. 23:1208.1 are to be contrasted with the requirements of the other anti-fraud statute in the Louisiana Workers’ Compensation Act, LSA-R.S. 23:1208. As we discussed in detail in Resweber, supra, while both LSA-R.S. 23:1208 and 1208.1 are anti-fraud enactments aimed at curtailing abuses in the workers' compensation system, the statutes serve separate purposes and apply to different situations. LSA-R.S. 23:1208 applies to any false statement or misrepresentation, including one concerning a prior injury, made specifically for the purpose of obtaining workers’ compensation benefits, and therefore generally becomes applicable at the time of an employee’s accident or claim. It contains no notice or prejudice requirement. LSAR.S. 23:1208.1, on the other hand, applies to employment-related questioning of an employee or prospective employee, by an employer, concerning a prior injury, when there is no pending workers' compensation claim. The statute results in the forfeiture of a claimant’s workers’ compensation benefits when that claimant makes false statements concerning a prior injury. For LSA-R.S. 23:1208.1 to be enforceable, there must be notice to the employee in compliance with the statute and prejudice to the employer. Resweber, 660 So.2d 7. In enacting separate anti-fraud statutes, the legislature deliberately elected to treat the two types of falsehoods differently. That difference roust be respected. Had the legislature intended that benefits terminate under LSA-R.S. 23:1208.1 based on the untruthful response alone, it could have so provided. It did not.

      . We note, rather than refusing to work due to a prior disability, this individual, instead, made an effort to become gainfully employed. His untruthful statement arose out of an attempt to return to the work place. Ultimately, it was not his shoulder which failed him, but rather his back. There was no proof submitted to establish the prior shoulder injury caused the back injury. There was no proof submitted to establish his untruthful statement on the questionnaire was made specifically for the purpose of obtaining workers’ compensation benefits.

      . LSA-R.S. 23:1208.1 is very clear in its requirement that forfeiture occur only in cases in which the non-disclosure and/or untruthful statement results in prejudice to the employer. As indicated, for an employer to be entitled to reimbursement from the second injury fund, it must prove the existence of three elements: (1) a preexisting permanent partial disability that is serious enough to hinder employment; (2) prior actual knowledge thereof; and (3) the merger between the preexisting disability and the subsequent injury. LSA-R.S. 23:1371 (A) and (C); LSA-R.S. 23:1378(A). The absence of any one of the three elements is fatal to the employer’s claim. Wise, 707 So.2d at 1220. While lack of prior actual knowledge is one of the three elements that the employer must prove, the lack of prior knowledge that inevitably flows from the employee’s misrepresentation and/or non-disclosure is only prejudicial to the employer's right to seek second injury fund reimbursement if the employer can prove that absent the lack of prior actual knowledge, it would have received reimbursement from the second injury fund. In other words, there is no prejudice from the lack of actual prior knowledge unless the employer can establish that the other two elements required for reimbursement (a permanent partial disability and the merger of that disability with the subsequent injury) are satisfied. Consequently, it is not enough for the employer merely to prove that the employee’s untruthful statement or non-disclosure deprived him of prior actual knowledge. The employer must also prove the other two elements required for second injury fund reimbursement because it is only when these two elements are proved that the absence of the third element, prior actual knowledge, becomes consequential. Any other interpretation of the statutory scheme would render the proviso in LSA-R.S. 23:1208.1 — which reads: "provided said failure to answer directly relates to the medical condition for which a claim for benefits is made or affects the employer's ability to receive reimbursement from the second injury fund” (emphasis added) — superfluous and meaningless, a result we cannot condone (since in every case involving an untruthful response to a medical history questionnaire there would always be an impact on the employer’s knowledge of the pre-existing disability and no need to ever resort to the language of the proviso). See, Barrilleaux v. NPC, Inc., 98-0728 (La.App. 1 Cir. 4/1/99), 730 So.2d 1062, 1064-1065, writ denied, 99-1002 (La.5/28/99), 743 So.2d 672 (“When interpreting a law, the court should give it the meaning the lawmaker intended. It will not be presumed that the legislature intended for any part or provision of the law to be meaningless or useless. It is presumed that every word, sentence, or provision in the law was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were used. The meaning of a statute is to be interpreted by looking to all the sections taken together so that no section, clause, sentence, or word becomes superfluous or meaningless.”) (citations omitted).
      Although we in no manner condone Davis’ untruthful response on the medical history questionnaire, we note the legislature in its wisdom chose a practical as opposed to a moralistic approach. While LSA-R.S. 23:1208.1 commands truthfulness, an employee is not sanctioned with the harsh punishment of forfeiture unless the untruthful statement prejudices the employer. Untruth must be coupled with prejudice to equate to forfeiture. Unquestionably, Davis’ untruthfulness would be punished, if the employer had been prejudiced. Essentially, the legislature adopted the playground basketball adage: "no harm, no foul.”
      As noted by Cicero, the Roman statesman and philosopher, "Our civil laws naturally cannot handle suppression of the facts in all its forms.” M.T. Cicero, Selected Works 183 (Michael Grant trans., Penquin Books 1965) (1960). The law was never meant to address each untruth, every exaggeration, all puffery. Based on practical considerations and to preserve personal liberty, the law cannot dictate all moral virtues.

      . An example of this type of merger can be found in the employee who suffers from arteriosclerosis, a permanent partial disability under LSA-R.S. 23:1378(F), and who subsequently sustains a heart attack on the job. Due to his underlying arteriosclerosis, he does not recover as would a normal worker and is in fact instructed to terminate employment because of the combination of the arteriosclerosis and the heart attack. The subsequent injury (heart attack) would probably not have occurred "but for” the preexisting permanent partial disability (arteriosclerosis). 13 Malone & Johnson, § 234 at 517. Another example can be fashioned from the facts of this matter. Suppose the claimant had re-injured his shoulder as opposed to injuring his back. The employer may have been able to establish "but for” the prior shoulder injury, a re-injury to the shoulder would not have occurred.

      . As the court commented in Southern Casualty Insurance Company, 478 So.2d at 577: “We can perceive of situations where the previous injury would not combine with or merge with a subsequent injury to create a greater disability, such as is possible in the hypothesis ... of the worker with the five percent hand injury and the fifty percent back injury. If these injuries in combination do not increase the worker’s disability to a materially and substantially greater degree, the statute requirements for merger have not been fulfilled. Each case must be examined in the context of its own facts to determine whether a merger of the two injuries has occurred.”

      . In fact, the record does not reveal the full extent of Davis’ disability or of Nabors’ resulting compensation responsibility. Dr. Cobb’s records reflect only that Davis has been diagnosed with a herniated disc at the L5-S1 level, that surgery has been recommended, and that Dr. Cobb has "talked to [Davis] about the implications of him returning to the oil field, that he would have to get something lighter.”


author: h KNOLL, Justice.

text:
    STATE of Louisiana v. Corey MILLER, Emanuel Stevenson, and Latasha Witherspoon.
    No. 2003-KK-0206.
    Supreme Court of Louisiana.
    Oct. 21, 2003.

      Ronald J. Rakosky, Martin E. Regan, Jr., for Applicant.
    Richard P. Ieyoub, Attorney General, Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Asst. District Attorney, Juliet L. Clark, Douglas W. Freese, William D. Daume, Christopher B. Edwards, Don C. Gardner, for Respondent.
   h KNOLL, Justice.

This criminal case addresses the constitutionality of the last sentence of La. R.S. 14:402(E), a catchall provision which attempts to expand the definition of contraband in a parish prison. Defendants were jointly indicted under La. R.S. 14:402(E), pertaining to the introduction and possession of contraband in a correctional center, specifically a cellular phone and charger. After their indictment, the defendants filed a motions to quash, arguing that the catchall provision contained in the last sentence of La. R.S. 14:402(E) was unconstitutional as an improper delegation of legislative power and void as vague. The district court denied defendants’ motions, and the court of appeal affirmed. We granted this writ to consider the constitutionality of the last sentence of La. R.S. 14:402(E), which provides that the definition of contraband is not restricted to those articles specifically set forth in the statute. For the following reasons we reverse, finding the lower courts erred in denying defendants’ motion to quash, concluding that the statutory catchall provision of La. R.S. 14:402(E) violates the separation of powers doctrine. State v. Corey Miller, 03-KK-0206 (La.4/25/03), 842 So.2d 387.

| .FACTS AND PROCEDURAL HISTORY

On March 13, 2002, around 5:30 p.m., officers of the Jefferson Parish Sheriffs Office on duty at the Jefferson Parish Correctional Center (“JPCC”) conducted a lockdown search of POD 3B LEFT, an area within the JPCC. During the search, the officers discovered a silver colored cellular phone plugged into a charger, which had been concealed behind a television set located in the common area of the POD.

After obtaining a search warrant for the information stored in the phone and a subpoena duces tecum for the cellular phone company’s records, the investigating officers determined that the phone contained numbers directly linked to defendant, Corey Miller. At the time the phone was discovered, Miller was housed in the POD on charges of second-degree murder. Officers also learned that the phone was registered to the same address as listed on Miller’s Louisiana identification card. It was further discovered that Sheriffs Deputies Latasha Witherspoon and Emanuel Stevenson were instrumental in placing the cellular phone in Miller’s possession.

On July 11, 2002, a grand jury indicted the defendants, Miller, Witherspoon, and Stevenson on multiple counts. The first count charged Miller, Stevenson, and Witherspoon with conspiracy to introduce contraband into the JPCC on or between January 18, 2002 and April 19, 2002 in violation of La. R.S. 14:402. The second count charged the defendants with conspiracy to commit public bribery on or between January 18, 2002 and April 19, 2002 in violation of La. R.S. 14:118. In the third count, the defendants were charged with the possession or introduction of contraband, namely, a cellular telephone and charger, into the JPCC in violation of La. R.S. 14:402. Stevenson and Witherspoon, who were correctional officers in the JPCC at |sthe time of the offense, were further charged in the fourth and fifth counts with public bribery in violation of La. R.S. 14:118 and malfeasance in office in violation of La. R.S. 14:134, respectively.

La. R.S. 14:402(E) is directly charged in the first and third counts of the indictment and implicated in the second, fourth, and fifth counts. The statute at issue provides:

E. It shall be unlawful to possess or to introduce or attempt to introduce into or upon the premises of any municipal or parish prison or jail or to take or attempt to take or send therefrom, or to give or to attempt to give to an inmate of any municipal or parish prison or jail, any of the following articles which are hereby declared to be contraband for the purpose of this Section, to wit:
(1)Any currency or coin which is legal tender;
(2) Any stolen property;
(3) Any article of food or clothing;
(4) Any intoxicating beverage or beverages which cause or may cause any intoxicating effects;
(5) Any narcotic or hypnotic or excitive drug or any drugs of whatever kind or nature, including nasal inhalators of any variety, sleeping pills or barbiturates of any variety that create or may create a hypnotic effect if taken internally, or any other controlled dangerous substance as defined in R.S. 40:961, et seq.; and
(6) Any firearm or any instrumentality customarily used as a dangerous weapon, including explosives or combustibles, except through regular channels as authorized by the officer in charge of any institution herein, or any plans for the making or manufacturing of such weapons or devices;
However, the definition of contraband is not restricted to those articles set forth hereinabove. (Emphasis added).

All of the defendants pleaded not guilty. Stevenson and Witherspoon filed motions to quash the indictment based on the constitutionality of the last sentence of La. R.S. 14:402(E), alleging that the provision is an improper delegation of legislative power and authority and is void for vagueness. Miller joined in the motions to quash.

|4LAW AND ANALYSIS

Under Article II, § 1 of the Louisiana State Constitution, the powers of state government are divided into “three separate branches: legislative, executive, and judicial.” La. Const, art. II, § 1. Article II, § 2 enunciates the separation of powers doctrine: “Except as otherwise provided by this constitution, no one of these branches, nor any person holding office in one of them, shall exercise power belonging to either of the others.” La. Const, art II, § 2. “Unlike the federal constitution, a state constitution’s provisions are not grants of power but instead are limitations on the otherwise plenary power of the people of a state exercised through its legislature.” Meredith v. Ieyoub, 96-1110 (La.9/9/97), 700 So.2d 478, 481, citing Board of Commissioners of Orleans Levee District v. Department of Natural Resources, 496 So.2d 281, 286 (La.1986). From these constitutional provisions, we derive the principle “that legislative power, conferred under constitutional provisions, cannot be delegated by the Legislature either to the people or to any other body of authority.” City of Alexandria v. Alexandria Firefighters Association, 220 La. 754, 57 So.2d 673 (1952).

The constitution vests the legislative authority exclusively in the Legislature. La. Const, art. Ill, § 1(A). “It is well settled in Louisiana jurisprudence that the determination and definition of acts which are punishable as crimes are purely legislative functions.” State v. All Pro Paint & Body Shop, Inc., 93-1316 (La.7/5/94), 639 So.2d 707, 711; State v. Taylor, 479 So.2d 339, 341 (La.1985); State v. Rodriguez, 379 So.2d 1084, 1085 (La.1980). Logically it follows that the Legislature cannot delegate its power to create and define criminal offenses. All Pro Paint, 639 So.2d at 711; Taylor, 479 So.2d at 341; State v. Broom, 439 So.2d 357, 367 (La.1983); Rodriguez, 379 So.2d at 1085; State v. Maitrejean, 193 La. 824, 192 So. 361, 364 (1939); City of Shreveport v. Price, 142 La. 936, 77 So. 883, 886 (1918).

However, the courts have repeatedly recognized, in the interest of legislative efficiency, exceptions to the nondelegation doctrine and allow the Legislature to delegate to administrative boards and agencies of the state the power to ascertain and determine the facts upon which the laws are applied and enforced. All Pro Paint, 639 So.2d at 711; Taylor, 479 So.2d at 341; Broom, 439 So.2d at 367; Rodriguez, 379 So.2d 1085; State v. Morgan, 238 La. 829, 116 So.2d 682, 687 (1959); Schwegmann Brothers Giant Super Markets v. McCrory, Commissioner of Agriculture, 237 La. 768, 112 So.2d 606, 613 (1959); State v. Guidry, 142 La. 422, 76 So. 843 (1917); State v. Syas, 136 La. 628, 67 So. 522 (1915). Provided the Legislature statutorily establishes standards for the guidance of the executive or administrative body or officer so that the executive is not vested with arbitrary discretion, a delegation of legislative authority to the executive branch is constitutional and not in violation of the separation of powers doctrine. Rodriguez, 379 So.2d at 1085; All Pro Paint, 639 So.2d at 711; Taylor, 479 So.2d at 341; Broom, 439 So.2d at 367.

Under the separation of powers doctrine, unless the constitution expressly grants an enumerated legislative power to the executive or the Legislature has enacted a statute expressly authorizing another branch to exercise its power, the executive does not have the power to perform a legislative function. Meredith, 700 So.2d at 481; Ieyoub ex rel. State v. W.R. Grace & Co. — Conn., 97-728 (La.App. 3 Cir. 3/6/98), 708 So.2d 1227, 1230. If the constitution has assigned a particular authority to the legislature, the constitutional grant of power is exclusive. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 631-32, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (Douglas, J., concurring); Laurence H. TRIBE, AMERICAN CONSTITUTIONAL LAW, § 4-8 (2nd ed., 1988). If the ^legislature has not spoken to grant to the executive the power to take acts enumerated as within the legislative power by the constitution, then the silence must be understood as denying the executive such authority. Tribe, supra at § 4-8. Article II, § 2 of the Louisiana Constitution of 1921 provided that “no one [branch], nor any person or collection of persons holding office in one of them, shall exercise power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.” In the revision of the constitution in 1974, the constitutional convention substituted the phrase “except as otherwise provided in this constitution” for the phrase “hereinafter expressly directed or permitted.” Records of the Louisiana Constitutional Convention of 197S: Convention Transcripts Vol. IX, p. 3072. The revised provision, however, was intended to retain the substantive effect of the previous provision, which mandated an express delegation of authority to another branch of government. Id. Therefore, for the executive to have the power to perform legislative functions, there must first be an express delegation either in the constitution itself or by the Legislature in a statute.

In the case at hand, the State alleges that the Legislature implicitly delegated the authority to define what constitutes contraband to the governing body of the |7parish jail. The State argued in the trial court that the provision of La. R.S. 14:402(E) in question does not limit the definition of contraband to those articles specifically set forth in the statute, but rather expands the definition to include “anything that an inmate is prohibited to have by those who are incarcerating him.”

The sheriff is the keeper of the public jail of his parish. La.Rev.Stat. § 33:1435 (2003). As such, the sheriff, as warden, is the governing body of the parish jail. La. R.S. 33:9001 provides that the “criminal sheriff or his successor shall be ex officio the chief executive officer of the district.” La.Rev.Stat. § 33:9001 (2003). Thus, the sheriff is obviously a member of the executive branch. For the sheriff, as an executive, to have the power to perform a legislative function, the constitution or the Legislature had to expressly grant or delegate that authority to the sheriff. See Meredith, 700 So.2d at 481; Ieyoub, 708 So.2d at 1230. The last sentence of La. R.S. 14:402(E), which states “[h]owever, the definition of contraband is not restricted to those articles set forth hereinabove,” is devoid of any express grant or delegation to the sheriff of the parish to further define what constitutes contraband under this statute.

This court has addressed the issue of the delegation of legislative authority in a criminal context on numerous occasions, and in the cases in which this issue has | «arisen, the statute in question contained an enabling cause directed to the executive branch granting to that branch the authority to perform some legislative function. See Morgan, 116 So.2d at 687-88 (addressing the constitutionality of former La. R.S. 14:402(A), which provided, in pertinent part: “it shall be unlawful to introduce ... certain articles declared to be contraband ‘except through regular channels to be authorized by the officer in charge of each correctional or penal institution’ ” (emphasis added)); Taylor, 479 So.2d at 340 (determining the constitutionality of former La. R.S. 14:402(A), which stated, in part, that “contraband shall be defined as any article ... which is not issued by the authorities operating the facility, sold through the institutional canteen, specifically permitted by applicable regulations, or otherwise specially authorized by the head of the facility or his designee ” (emphasis added)); Broom, 439 So.2d at 358 (addressing the constitutionality of a statute which provided a penalty for violating regulations adopted by the Secretary of Public Safety); All Pro Paint, 639 So.2d at 708 (determining the constitutionality of statute which expressly provided the Department of Environmental Quality with the authority to identify and designate substances constituting hazardous waste subject to criminal penalty provisions). In all previous cases before this court, the statute in question specifically identified an officer or agency of the executive to which the legislature delegated its legislative authority. The last sentence of La. R.S. 14:402(E), however, fails to even identify to whom the legislative authority is granted.

In City of New Orleans v. Stein, 137 La. 652, 69 So. 43 (1915), this court held that the power to enforce an ordinance by a municipality, agency, or board by imprisonment must be expressly given, or else it does not exist. Stein, 69 So. at 43. Also, not only |flmust the authority be expressly given, but it must be given plainly. Stein, 69 So. at 43. Analogously, the authority to define items that constitute contraband, the possession of which is a crime punishable by up to five years in prison under La. R.S. 14:402(G), must be expressly and plainly given to the governing body of a municipal or parish jail. In a criminal context, the delegation of legislative authority to the executive branch and especially to a parish official must be expressly and plainly given. The catchall provision of La. R.S. 14:402(E) contains neither an express nor a plain delegation of legislative authority to the warden of the parish jail to determine what constitutes contraband.

Given this absence of an enabling clause or any express grant of authority and the well-established tenet of statutory construction that criminal statutes are subject to strict construction under the rule of lenity, State v. Carr, 99-2209 (La.5/26/00), 761 So.2d 1271, 1274, we find that the catchall provision of La. R.S. 14:402(E) does not contain a delegation of legislative authority to the sheriff to determine the definition of contraband under this statute. Therefore, the actions taken by the sheriff in classifying the cellular phone and charger as contraband under La. R.S. 14:402(E) constitutes an unconstitutional usurpation of legislative authority and a violation of the separation of powers doctrine.

We farther observe that had we determined the provision in question contains a proper delegation of authority to the executive, we would still find the provision unconstitutional under the separation of powers doctrine as an improper delegation of legislative authority.

This court in determining whether a particular delegation of legislative power is constitutional relies upon the three-prong test fashioned by this court under the hnguidance of the principles set forth in Schwegmann and inherent in the constitutional separation of powers: a. delegation of authority to an administrative agency is constitutionally valid if the enabling statute (1) contains a clear expression of legislative policy, (2) prescribes sufficient standards to guide the agency in the execution of that policy, and (3) is accompanied by adequate procedural safeguards to protect against abuse of discretion by the agency. All Pro Paint, 639 So.2d at 712; State v. Barthelemy, 545 So.2d 531, 534 (La.1989); Adams v. State, Dept. of Health and Human Res., 458 So.2d 1295, 1298 (La.1984); State v. Union Tank Car Co., 439 So.2d 377, 380 (La.1983).

In State v. Taylor, 479 So.2d 339, 342 (La.1985), defendant challenged the constitutionality of former La. R.S. 14:402(A), which granted, at the time, the authority to the head of the correctional facility or his designee to define contraband by simply not issuing, selling, or permitting the article, substance, or thing in the facility. Defendant Taylor was charged by bill of information with possession and introduction of contraband into or upon the grounds of Louisiana Training Institute, a facility of the Department of Corrections, located at Monroe, Louisiana in violation luof La. R.S. 14:402(A). The alleged contraband was a large quantity of cigarettes. Defendant filed a motion to quash that portion of the Ml charging him with the violation of La. R.S. 14:402(A) on grounds that the statute improperly delegated legislative authority to define a crime to the head of a correctional facility or his desig-nee. This court held the statute unconstitutional, finding that the Legislature had improperly delegated the authority to define criminal acts. Taylor, 479 So.2d at 342.

In Taylor, this Court found that the first sentence of former La. R.S. 14:402(A) defined any article, substance or thing as contraband “unless the authorities at the institution decide[d] to issue the article, sell it through the canteen, permit it by regulation or specially authorize it.” We found the statute as written vested the prison authorities with “unbridled discretion to make exceptions to the Legislature’s proscription of all items as contraband whenever they desire[d] to issue the article, sell it in the canteen or otherwise regulate or authorize it.” Such unbridled discretion, in effect, vested the prison authority with the power to define and redefine what is criminal conduct by merely deciding one day to sell cigarettes at the canteen and then the next to discontinue such sales. The Court found that the statute as written failed “to prescribe sufficient standards by which the power delegated is to be exercised.” We concluded that due to the unfettered discretion provided the executive by the statute, the exercise of the delegated authority constituted a legislative function, not an administrative function, and declared the first sentence of former La. R.S. 14:402(A) unconstitutional. Taylor, 479 So.2d at 342-43.

Similar to the first sentence of former La. R.S. 14:402(A), the last sentence of La. R.S. 14:402(E), as presently written, vests the governing authority of the parish jail with the unfettered authority to determine what is or is not contraband. Notably, this catchall provision would grant to the sheriff the authority to define criminal 112conduct, which under the provisions of La. R.S. 14:402(G) would constitute a felony under this state’s substan-five criminal law. La. R.S. 14:402(G) provides that a violation of any provision of La. R.S. 14:402 by anyone shall result in imprisonment “with or without hard labor for not more than five years.” La.Rev. Stat. § 14:402(G) (2003). Article VI, § 9(A)(1) of the Louisiana Constitution provides that “no local government subdivision shall define and provide for the punishment of a felony.” La. Const, art. VI, § 9(A)(1). Notwithstanding this constitutional directive, the catchall provision contained in La. R.S. 14:402(E) as written grants to local officials the authority to define criminal conduct, which under Section 402(G) constitutes a felony offense. Thus, this catchall provision would delegate to the sheriff, an executive member of local government, the authority to perform a legislative function. Moreover, the provision provides absolutely no standards by which the power delegated is to be exercised and renders the delegation completely unfettered. We find that a grant of such authority is clearly invalid under our constitution and the separation of powers doctrine. Accordingly, we will strike the last sentence of La. R.S. 14:402(E).

Invalidation of the last sentence of La. R.S. 14:402(E), however, would not render the entire statute invalid. Under the doctrine of severability, the provisions of each legislative act are severable, even in the absence of a severability clause, La. R.S. 24:175(A), unless “the unconstitutional portions of the statute are so interrelated and connected with constitutional parts that they cannot be separated without destroying the intention manifested by the legislature in passing the act.” State v. Azar, 539 So.2d 1222, 1226 (La.1989), cert. denied, 493 U.S. 823, 110 S.Ct. 82, 107 L.Ed.2d 48 (1989); Cobb v. Louisiana Board of Institutions, 237 La. 315, 111 So.2d 126 (1958). In the present ease, the last sentence of La. R.S. 14:402(E) clearly adds little, if anything, to the statute. The remainder of the statute specifically lists all items defined by the Legislature as contraband. Removal of the catchall provision would not affect the legislative intent behind the statute. The remainder of this statute, held constitutionally valid in State v. Morgan and State v. Taylor, would still stand.

DECREE

For the foregoing reasons, the last sentence of La. R.S._14:402(E) is stricken and declared unconstitutional. The judgments of the lower courts are reversed and set aside, and judgment is hereby rendered granting defendants’ motions to quash.

REVERSED.

KIMBALL, LOBRANO and VICTORY, JJ., concur in the result.

       Retired Judge Robert L. Lobrano, assigned as Justice ad hoc, sitting in place of Chief Justice Pascal F. Calogero, recused.

      . On or about March 13, 2002, Miller was charged with the same alleged offense based on the same alleged conduct, the introduction and possession of contraband, a cellular phone and charger, in a correctional facility. The Jefferson Parish Correctional Center Disciplinary Board tried the defendant and found him guilty. He was placed in isolation for fourteen days and was deprived of all privileges as punishment for his offense.

      . The explanation of this revision stated:
      This is simply what we all know and understand to be the doctrine of separation of powers. The only difference between this statement and the statement of the 1921 Constitution is simply that it says “except in instances hereinafter expressly directed or permitted.’’ At the end of our proposal we have "except as otherwise provided in this constitution.” You may say, "Well, when in this constitution do we have other branches of government participating or encroaching upon others?” One example might be impeachment, another example may be where administrative bodies act as a court before those issues are submitted to a court, etc.

        Records, supra at 3072.

      . The State in its Brief relies on language contained in a footnote of a case decided by the First Circuit Court of Appeal, which provides:
      Defendant does not argue that the statute is unconstitutional because it specifically provides that the list of contraband articles is not exclusive and thus, implicitly delegates authority to declare an item contraband. However, such a provision does not render the statute invalid. It is apparent that this provision is simply a recognition of the fact that the officer in charge of a penal institution is likely to face situations wherein it is impracticable to lay down a comprehensive rule, and the enforcement of a police regulation may require the prompt exercise of judgment.

        State v. Converse, 529 So.2d 459, 462 (La.App. 1st Cir.1988)(affirming trial court’s denial of defendant's motion to quash, finding that the provision under which the defendant was charged was upheld as constitutional under State v. Morgan), writ denied, 533 So.2d 355 (La.1988).

      . The authority to impose a pecuniary penalty for violation of an ordinance may be implied because the ordinance would otherwise be nugatory. Stein, 69 So. at 43.

      . La. R.S. 14:402(A), at the time, provided:
      For the purpose of inmate and institutional security at state adult or juvenile correctional institutions, contraband shall be defined as any article, substance, or thing which is not issued by the authorities operating the facility, sold through the institutional canteen, specifically permitted by applicable regulations, or otherwise specially authorized by the head of the facility or his designee. Contraband includes but is not limited to any substance or device defined in the Uniform Controlled Dangerous Substance Law except where prescribed by a physician, provided the drugs are contained in a container from the drug store bearing the full identification of the doctor who issued the drugs, the druggist who dispensed same and the number of the prescription, and that said drugs are not concealed upon the body of the person; any weapons or devices designed to kill or wound or any plans for the making or manufacturing of such weapons or devices; explosives or combustibles; any plans for escape from an institution; intoxicating beverages; stolen property, and money which is legal tender, except where specifically authorized by applicable regulations.

      . We hasten to add that while the governing authority of JPCC can control what items are not permissible for its prisoners to have and internally punish prisoners for violating its rules as was done in this case, it cannot criminalize such conduct without proper legislative delegation of authority.