author: PARRO, J.

text:
    Errol A. DUPLANTIS, Sr. and Glenda Pope Duplantis v. DILLARD’S DEPARTMENT STORE, et al.
    No. 2002 CA 0852.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 2003.

      Stephen S. Stipelcovich, Law Offices of Michael J. Samanie, Houma, for Plaintiffs-Appellants Errol A. Duplantis, Sr. and Glenda Pope Duplantis.
    William F. Dodd, Joseph J. Weigand, Jr., Weigand & Dodd, Houma, for Defendant-Appellee Jerry J. Larpenter, Sheriff for Terrebonne Parish.
    Robert B. Butler, III, Law Office of Robert B. Butler, III, Houma, for Donny Pitre.
    Before: PARRO, MCDONALD, and CLAIBORNE, JJ.

      . Judge Ian W. Claiborne, retired from the Eighteenth Judicial District Court, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   PARRO, J.

Errol A. Duplantis, Sr. and his wife, Glenda Pope Duplantis, appeal a judgment granting a motion for summary judgment and dismissing their vicarious liability claims against Sheriff Jerry J. Larpenter that were based on the alleged negligence of an off-duty deputy working as a security guard. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Glenda Duplantis, an employee of Dillard’s Department Store, Inc. (Dillard’s), was injured when a shoplifting suspect tried to escape from a security guard and shoved a swinging door into her. The security guard was Donny Pitre, an off-duty deputy with the Terrebonne Parish Sheriffs Office (TPSO), who was working as a paid private security guard at Dillard’s when the incident occurred. The shoplifting suspect, Brandon Washington, had tried to run from Pitre after first being confronted by him. With the help of some bystanders, Pitre had managed to capture Washington in a nearby parking lot, had handcuffed him with his hands behind his back, and had brought him back to the loading dock area of Dillard’s. While filling out the incident report and waiting for the TPSO to send another deputy to take Washington into custody, Pitre saw Washington step over the handcuffs and bring his hands in front of his body. When Deputy Brent Favalora arrived, he removed Pitre’s handcuffs and cuffed Washington with his hands in front of his body. When Favalora went to get his car to bring it to the loading dock area, Washington again tried to escape and, in doing so, pushed a swinging door into Mrs. Du-plantis and injured her.

Mr. and Mrs. Duplantis sued Pitre, Fa-valora, Sheriff Jerry Larpenter, and the sheriffs unnamed insurer, alleging that the negligence of the two deputies was a cause of her injuries and that the sheriff was vicariously liable for the deputies’ negligence and independently liable for failing to adequately train the deputies. Pitre filed a motion for | -¡summary judgment, alleging that he was a co-employee of Mrs. Duplantis, and therefore, her exclusive remedy against him was in workers’ compensation. Sheriff Larpenter also filed a motion for summary judgment, alleging he was not vicariously liable for Pitre’s actions or inactions, because Pitre was working for Dillard’s and was not in the course and scope of his employment with the TPSO at the time the incident occurred. The trial court granted both motions, and Mr. and Mrs. Duplantis appealed.

The only assignment of error is that the trial court erred in finding that the sheriff was not vicariously liable for the allegedly negligent acts of Pitre. Mr. and Mrs. Duplantis contend that Dillard’s and the TPSO were dual employers of Pitre and, therefore, are solidarily liable for his negligence under Louisiana Civil Code article 2820. They also argue that Pitre was in the course and scope of his employment with the TPSO when the accident occurred.

APPLICABLE LAW

The principle of vicarious liability is codified in Louisiana Civil Code article 2320, which provides that an employer is hable for the tortious acts of its employees “in the exercise of the functions in which they are employed.” Russell v. Noullet, 98-0816 (La.12/1/98), 721 So.2d 868, 871. This court, in interpreting the language, “in the exercise of the functions in which they are employed,” has held that this language is the codal expression of the usual phrase, “in the course and scope of the employment.” Romero v. Hogue, 77 So.2d 74, 79 (La.App. 1st Cir.1954). To establish vicarious liability for an employee’s negligence pursuant to Article 2320, it must be shown that the employee’s general activities at the time of the tort were within the course and scope of his employment. Cooper v. Reed, 02-0575 (La.App. 1st Cir.2/14/03), 845 So.2d 411, 2003 WL 343209.14 While the course of employment test refers to time and place, the scope of employment test examines the employment-related risk of injury. Baumeister v. Plunkett, 95-2270 (La.5/21/96), 673 So.2d 994, 996.

For an employer to be vicariously liable for the tortious acts of its employee, the tortious conduct of the employee must be so closely connected in time, place, and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer’s business, as compared with conduct instituted by purely personal considerations entirely extraneous to the employer’s interest. LeBrane v. Lewis, 292 So.2d 216, 217-18 (La.1974); Baumeister, 673 So.2d at 996. Vicarious liability will attach in such a case only if the employee is acting within the ambit of his assigned duties and also in furtherance of his employer’s objective. Baumeister, 673 So.2d at 996. Generally speaking, an employee’s conduct is within the course and scope of his employment if the conduct is of the kind that he is employed to perform, occurs substantially within the authorized limits of time and space, and is activated at least in part by a purpose to serve the employer. Orgeron v. McDonald, 93-1353 (La.7/5/94), 639 So.2d 224, 226-27. Stated another way, the court must examine whether the tortious act: (1) was primarily employment rooted; (2) was reasonably incidental to the employee’s duties; (3) occurred on the employer’s premises; and (4) occurred during the hours of employment. LeBrane, 292 So.2d at 218. It is not necessary that each of these factors be present in each case, and each case must be decided on its own merits. However, at a minimum, at least one of these factors must be present for the employer’s liability to attach. Maze v. Grogan, 94-501 (La.App. 1st Cir.5/9/97), 694 So.2d 1168, 1170. Factual circumstances to consider are the payment of wages by the employer; the employer’s power of control; the employee’s duty to perform the particular act; the time, place, and purpose of the act in relation to serving the employer; the relationship between the employee’s act and the employer’s business; the benefits received by the employer from the act; and the reasonable expectation of the employer that the employee would perform the act. Orgeron, 639 So.2d at 227; Billiot v. Terrebonne Parish Sheriff’s Office, 98-0246 (La.App. 1st Cir.2/19/99), 735 So.2d 17, 25, writ denied, 99-1376 (La.7/2/99), 747 So.2d 22.

An appellate court reviews a trial court’s decision to grant a motion for summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact. West v. Clarendon Nat’l Ins. Co., 99-1687 (La.App. 1st Cir.7/31/00), 767 So.2d 877, 879. The motion should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B); Johnson v. Evan Hall Sugar Coop., Inc., 01-2956 (La.App. 1st Cir.12/30/02), 836 So.2d 484, 486. On a motion for summary judgment, if the moving party will not bear the burden of proof at trial on the matter before the court on the motion, the moving party must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. If the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact and summary judgment must be granted. LSA-C.C.P. art. 966(C)(2); McGee v. State ex rel. DOTD, 00-2706 (La.App. 1st Cir.3/28/02), 813 So.2d 625, 628.

ANALYSIS

In its oral reasons for judgment, the trial court explained in great detail its decision that the sheriff was not vicariously liable for Pitre’s aheged negligence. The court noted that there were no issues of material fact concerning the fact that Pitre, although an employee of the TPSO, was working a “side detail” at Dillard’s at the time of the incident and was, therefore, “an employee of Dillard’s for all practical purposes.” As summarized by the trial court, the evidence showed that Dillard’s paid Pitre, had a personnel file for him, withheld taxes from his paycheck, and issued W-2’s concerning phis pay. Dillard’s required each deputy hired as a security guard to complete an employment application, to participate in an orientation meeting, and to review and sign a copy of its pohcies and procedures concerning a security guard’s duties. Dillard’s supervised the deputies, including designating the methods to be used for dealing with suspected shoplifters, the place where apprehension could be made, the circumstances under which handcuffs were to be used, and the area where shoplifting suspects were to be taken after being apprehended. We find no dispute as to these factual findings and note also that the events that caused Mrs. Duplantis’s injuries occurred on Dillard’s premises while Pitre was under Dillard’s supervision only and was not on duty for the TPSO.

However, the trial court went beyond these factors, which simply emphasized Pi-tre’s status as a Dillard’s employee, to focus on whether Pitre’s specific duties and actions in this situation were rooted in his law enforcement function as a TPSO deputy or whether they were actions that could also have been performed by any other Dillard’s employee by virtue of that employment relationship. There is no dispute that Dillard’s hired TPSO deputies as security guards because they had training in law enforcement; the deputies also wore uniforms provided by the TPSO while working at Dillard’s. However, as noted by the trial court, there are statutes giving merchants and their employees the right to apprehend and detain shoplifting suspects, a law-enforcement function usually reserved for officers of the law. The court stated:

Article 215 of the Code of Criminal Procedure deals with the detention and the arrest of shoplifters. And our legislatures ... have created a legal fiction, because basically under criminal law a private citizen does not have the right to arrest somebody on a misdemeanor crime. A private citizen can, if he sees a crime being committed, arrest on a felony. So what the legislature has done on the shoplifting statutes, merchants can designate certain agents, employees, to use reasonable force to detain individuals for questioning.
[W]hat we have is a statutory scheme where non-law-enforcement officers are allowed to perform functions that would otherwise be traditionally performed by law-enforcement officers.... What the statutory scheme under Article 215 says is that the merchant or his employee may detain a person for arrest by a police officer, and the last paragraph of (A)(1) states that the detention shall not constitute an arrest.
* * *
[T]his is in the nature of a privilege that has been granted to merchants in order to protect their property and to deal with these circumstances.... Article 218.1 states that when a person has been arrested or detained in connection with the investigation or commission of any offense, he shall be fully advised of the reason for his arrest or detention, his right to remain silent, his right against self-incrimination, his right to the assistance of counsel, and if indigent, his right to court-appointed counsel.
So what we have is whether it’s a law-enforcement officer who is working for a merchant or if it’s a merchant’s employees who have been designated to detain shoplifters[, t]hey are both allowed to perform basically the same functions. The Code also provides that once somebody is detained for arrest that that person will be turned over to a law-enforcement officer as soon as possible. And that’s Articles 226 and then 228[in] the Code of Criminal Procedure.
The functions [Pitre] was conducting, at that time, although they may be those that are traditionally carried out by a law-enforcement officer, those functions within the shoplifting and detention of [shoplifters] context, are not exclusively relegated to a police officer.
The fact that Dillard’s had hired a law-enforcement officer to do this, the Court does not feel renders the sheriffs office hable since this was within the traditional functions and duties that were being performed by Dillard’s employees with respect to shoplifters.

We find no fault with this analysis. While the detention and investigation of misdemeanor theft is “reasonably incidental to” the duties of a law enforcement officer, in the context of this case, these same acts are also “reasonably incidental to” the duties of a merchant’s employee. Pitre’s actions in this instance were not exclusively related to his status as a law enforcement officer, but were also functions of his status as a Dillard’s employee. Additional factors to consider are that the TPSO derived no real benefit from Pitre’s employment with Dillard’s, nor did the TPSO require him or any other deputy to work on his own time as a security guard for Dillard’s. Pitre was not acting within the ambit of any duties assigned to him by the TPSO, nor were his activities as an off-duty security guard controlled by the TPSO. The TPSO’s only involvement was that it told its deputies the Dillard’s detail was available to them and it provided Dillard’s with a schedule for those deputies who had applied and been accepted as Dillard’s security guards, showing when those deputies would-be available for the off-duty detail. Therefore, we conclude that the law and the evidence fully 1^support the trial court’s conclusion that the sheriff was not vicariously liable for any alleged negligence of Pitre.

In support of their “dual employer” argument, Mr. and Mrs. Duplantis rely on the case of Blair v. Tynes, 621 So.2d 591 (La.1993). There the sheriffs office was found vicariously liable for the negligence of its deputies in directing traffic at a private fundraising activity and the private employer was also found independently negligent and vicariously liable. However, that case involved an activity — traffic regulation — over which, as the court noted, “[t]he legislature has given law enforcement officers the exclusive power....” Blair, 621 So.2d at 596. Also, the court in Blair did not address the issue of whether the deputies were off-duty at the time and whether they were within the course and scope of their employment with the sheriffs office when the accident occurred. Rather, after finding the sheriffs office had a statutorily-imposed duty to the pedestrian plaintiff, the court went on to find that the private employer was also vicariously liable as the special employer of the deputies. It was in that context that the “dual employment” solidary liability was imposed. We do not agree that the Blair case governs the situation we are addressing, because the job being performed by Pitre for Dillard’s in this case was not one that only a trained sheriffs deputy could perform, nor was it an exclusive law-enforcement function. Rather, it was a function that any designated Dillard’s employee could perform, and it was as a Dillard’s employee that Pitre was engaged in this function. Therefore, we conclude that this assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to Mr. and Mrs. Duplantis.

AlFFIRMED.

      . The petition incorrectly designated this defendant as Dillard Department Store; the correct name is Dillard's Department Store, Inc.

      . A supplemental and amending petition named Coregis Insurance Company as the sheriff's insurer.

      . The petition also named as defendants Brandon Washington, Dillard’s, and its unnamed insurer. A supplemental and amending petition named Dillard’s insurer as Liberty Mutual Insurance Company. Mr. and Mrs. Duplantis eventually dismissed all their tort claims and settled their workers' compensation claims against Dillard's and Liberty Mutual.

      . The judgment dismissing the claims against Sheriff Larpenter was limited to the vicarious liability claims based on Pitre’s alleged negligence. Claims that the sheriff also had vicarious liability based on Favalora's alleged negligence were specifically not included in the judgment and remain in effect.

      . Mr. and Mrs. Duplantis initially filed an application for a supervisory writ. This court denied the writ, remanded the matter, and ordered the trial court to treat the notice of intent to apply for a writ as a motion for appeal. Duplantis v. Dillard Dep’t Store, 01-2019 (La.App. 1st Cir.10/22/01)(unpublished writ action).

      . In its ruling on Pitre's motion for summary judgment, the trial court found that he was an employee of Dillard’s at the time of the accident. Based on that finding, he was a co-employee with Mrs. Duplantis, and her remedy against him was limited to workers’ compensation. Mr. and Mrs. Duplantis did not assign error to the dismissal of their tort claims against Pitre.

      . Pitre testified in his deposition that he and the other deputies who worked as security guards paid the TPSO one dollar for every hour worked as reimbursement for using its uniforms on the Dillard's detail.

      . In affirming this judgment, we note also that the facts of this case distinguish it from this court's decision in Cheatham v. Lee, 277 So.2d 513 (La.App. 1st Cir.), writ denied, 279 So.2d 696 (La.1973), in which a municipality was found vicariously liable for a battery committed by an off-duty policeman working a private security detail. In that case, the private employer exercised no control over the officer and had no policies or procedures governing his activities. The officer cleared his employment with his supervisor on the police force and considered that "he had the power and authority of a fully authorized city policeman” in using his "slap jack” to break up an altercation. Cheatham, 277 So.2d at 516. His actions were strictly those of a law enforcement officer and could not have been performed legally by a private citizen.


source: Caselaw Access Project

author: WHIPPLE, J.

license: Public Domain

text:
    James TODD v. WAL-MART.
    No. 2002 CA 1381.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 2003.

      Frank Bruno, New Orleans, for Plaintiff/Appellant, James Todd.
    Charles Martin Kreamer, Lafayette, for Defendant/Appellee, Wal-Mart.
    Before: CARTER, C.J., WHIPPLE and CIACCIO, JJ.

      . Judge Philip C. Ciaccio, retired, Fourth Circuit Court of Appeal, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   WHIPPLE, J.

In this workers’ compensation case, the claimant, James Todd, appeals from judgments of the Office of Workers’ Compensation (“OWC”) finding a compensable accident occurred and that the claimant sustained an aggravation of his condition as a result, but that claimant was not entitled to indemnity benefits, a new trial, or modification. For the following reasons, we affirm the judgment on the merits and the denial of the motion for new trial.

FACTS AND PROCEDURAL HISTORY

On April 3, 2001, the claimant, while employed as a stocker at Wal-Mart’s Tire and Lube Express, filed a Disputed Claim For Compensation Form 1008 with the OWC. He alleged that on April 18, 2000, he injured his right shoulder while pulling a pallet of windshield fluid in the course and scope of his employment and that Wal-Mart, “failed to pay or have refused to continue paying any of the correct compensation and/or medical benefits in addition to that paid or owed and that the [defendant’s] failure to pay is arbitrary and capricious and without probable cause and that the said defendants shall [be condemned] to pay (12%) penalty on the total amount of [plaintiffs] loss, together with all reasonable attorney’s fees for the prosecution of this action, along with all legal interest.”

He later filed an amended 1008, supplementing his original claim and alleging as follows:

Mr. Todd went back to work after his original injury of April 2000 to October 2000 and then he had shoulder surgery. He then returned to work with limitations, from January 2001 to March 2001 but he was not offered light duty, only his regular job, therefore in the abundance of caution and in the alternative the claimant alleges a second injury occurred that is occupationally related to his job during the period of time he returned to work from January 2001 to March 2001, which made his pre-existing disability worse.

The matter proceeded to trial on February 25, 2002, after which the OWC judge rendered judgment on March 8, 2002, finding: 1) that Todd suffered a | ¡¡compensable accident on April 8, 2000, which was aggravated by a subsequent accident on April 18, 2000; and 2) that Todd was not entitled to indemnity benefits “after the date of his resignation on March 21, 2000[sic] through the date of trial.”

On March 21, 2002, Todd filed a “Motion for New Trial/Motion for Modification” contending the judgment was contrary to the law and evidence presented. After hearing argument on the matter, by judgment dated May 17, 2002, the OWC judge denied his request for new trial and modification.

Todd then filed the instant appeal.

CLAIM FOR ADDITIONAL BENEFITS

(Assignment of Error No. 1)

In this assignment of error, Todd contends that the OWC judge committed manifest error by denying claimant’s claim for additional benefits. Specifically, Todd contends that Wal-Mart did not offer him a job within his restrictions, and therefore, Wal-mart owes him past and future benefits.

In a workers’ compensation case, as in other cases, the appellate court’s review of factual findings is governed by the manifest error or clearly wrong standard. Boudreaux v. Angelo Iafrate Construction, 2002-0992, p. 2 (La.App. 1st Cir.2/14/03), 848 So.2d 3, 6, 2003 WL 343178. The two-part test for appellate review of a factual finding is: (1) whether there is a reasonable factual basis in the record for the finding of a trial court, and (2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if a reasonable factual basis exists, an appellate court may set aside a trial court’s factual findings only if, after reviewing the record in its entirety, it determines the trial court’s finding was clearly wrong. See Stobart v. State, through, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993).

In detailed and well-written reasons for judgment, which we attach hereto as “Appendix A” and make a part hereof, the OWC judge reviewed the conflicting evidence as to whether Todd was entitled to indemnity benefits subsequent to his March 21, 2001 resignation and concluded that “[he had] not proven that his resignation had anything to do with restrictions from his work injury nor from his employer forcing him to work beyond his doctor’s restrictions,” and, thus, had not proven entitlement to indemnity benefits subsequent to his resignation.

On review, we conclude the factual findings of the OWC judge are amply supported by the record, given: (1) the testimony of Todd that he was a fifty-eight year old male at the time of trial and had a history of prior injuries to his back and neck, diabetes, deafness in one ear, blindness in his right eye, arthritis, bursitis, tendonitis, and that due to his many health problems, he had been trying to qualify to receive disability benefits; (2) the testimony of Dewayne Gilmore, Todd’s immediate supervisor and manager of the Wal-Mart Tire and Lube Express, that he instructed Todd to work within his limitations and assigned him to “cleaning and zoning” in his department, which required him to lift no more than five pounds; (3) the testimony of Larry Lamb, co-manager of Wal-Mart, that he was present when Todd was instructed to work within his restrictions as set forth by Dr. Brett J. Chiasson, performing cleaning and zoning duties only, and that he specifically told Todd that if he needed help, employees from another division of the store would be assigned to pull pallets for him; (4) the testimony of Denise Wilson, personnel manager of Wal-Mart, that she was also present at the meeting (and on two other ^occasions) with Larry Lamb and Dewayne Gilmore when Todd was specifically instructed to follow the restrictions and stay within the boundaries the doctor had given him, and that he was to perform zoning and cleaning duties in the Tire and Express Lube Department within his physical limitations; and (5) the testimony of Todd’s co-worker, Joey DiMaggio, that he was instructed by his supervisor, Dewayne Gilmore, that he was to do all of the heavy lifting and Todd was to perform light-duty tasks only, and that if he witnessed Todd performing heavy lifting, he was to stop and assist Todd and was to prevent him from lifting anything heavy. Accordingly, given the record before us, we conclude that the underlying factual findings upon which the OWC judge based its denial of Todd’s claim for additional benefits after resignation is amply supported by the evidence and is not manifestly erroneous.

This assignment of error lacks merit.

AVERAGE WEEKLY WAGE/MOTION FOR NEW TRIAL

(Assignments of Error Nos. 2, 3, & 4)

In the remaining assignments, Todd argues that the OWC judge erred in failing to modify the pretrial order thereby failing to address his claims regarding the computation of the average weekly wage, and that the OWC judge erred in failing to grant his motion for new trial/motion for modification of the average weekly wage. Todd further contends that if the failure of the OWC judge to address the issue of average weekly wage is equivalent to a denial, then the OWC judge erred by denying Todd an increase in his average weekly wage and by refusing to award attorney’s fees and penalties.

The OWC judge found that while Todd attempted at trial to raise the issue of an incorrect calculation of average weekly wage and/or compensation rate, “this was not listed in pre-trial statement nor briefed nor supported in post-trial | ^memorandum.” Therefore the OWC judge denied the claim. Hearing Rule Section 6201 of the OWC judge provides that:

Only those issues listed in the pretrial statements shall be litigated at trial. No new issues shall be raised except by written order of the judge for good cause or upon mutual agreement of the parties.

Todd’s pretrial statement was filed into the record on August 24, 2001. Although the statement listed several contested issues, no request for list modification or recalculation of weekly average wage was included therein. He filed an amended pretrial statement on December 17, 2001, to name an additional witness, yet again did not mention any issue concerning improper calculation or modification of the average weekly wage.

Instead, the trial transcript shows that he attempted to address the average weekly wage issue in closing arguments after both parties had presented their witnesses’ testimony. After Todd’s counsel mentioned increasing the average weekly wage, the OWC judge responded, “Okay. Slow down a bit because this is the first I’m hearing of this.” The OWC judge concluded the hearing with the following exchange:

BY THE COURT:
Okay. I don’t think I need any posttrial briefs; but if you’re interested in submitting one, just let me know now so I can give you a deadline.
BY MR. KREAMER:
I don’t plan on submitting one.
BY MR. BRUNO:
Unless you feel — do we need anything on the average weekly wage? I could get that....
BY THE COURT:
Okay. Let’s just do it this way then. If you feel like you want to, you know, send me anything regarding the average weekly wage, corresponding comp rate, make sure you have it to me by March 8th. It’s not this Friday but next Friday. ... I’m, you know, very close to |7coming to some kind of decision on it. So while it’s still fresh, I’d like to get it out. So no later than March 8th if you feel like you need to. And that’s it.

The OWC judge rendered judgment accordingly, as promised, on March 8, 2002, and issued written reasons for judgment on March 11, 2002. Todd’s post-trial memorandum was filed on March 12, 2002, three days after the judgment was rendered and one day after the reasons for judgment were rendered. Under these circumstances and considering OWC rules and the record as a whole, we are unable to find an abuse of discretion by the OWC judge either in refusing to address or modify the average weekly wage figure.

On March 21, 2002, claimant filed a “Motion for New Trial/Motion for Modification” asking the OWC judge to modify the ruling on the issue of average weekly wage, in the event that the judge denied the motion for new trial. Alternatively, claimant requested that the OWC judge rule on the issue (by recalculating the amount, in Todd’s favor) using the previously-submitted evidence. After a hearing, the OWC judge denied the motion for new trial and for modification.

The granting or denying of a motion for new trial rests within the wide discretion of the trial court, and its determination should not be disturbed absent a clear abuse of discretion. LSA-C.C.P. arts. 1972, 1973. After thorough review of the record herein, we find no abuse in the OWC judge’s wide discretion in denying the motion for new trial/motion for modification.

Finally, claimant argues that if this court finds that the failure of the OWC judge to reach the average weekly wage issue was equal to a denial, then the OWC judge erred in denying the request for an increase in claimant’s average weekly wage and refusing to award attorney’s fees and penalties. For the reasons discussed above, we find no abuse of discretion in the OWC judge’s refusing to address Todd’s attempt to modify the average weekly wage after judgment had |sbeen rendered and reasons for judgment were issued. As the OWC judge noted, this issue was not timely raised in the pretrial statement or post-trial memorandum. Because the average weekly wage issue was not properly raised in the prior proceedings, and was properly denied by the OWC judge, this court is precluded from addressing the merits of the claim on appeal.

Thus, these assignments also lack merit.

CONCLUSION

For the above and foregoing reasons, the March 8, 2002 judgment of the OWC is affirmed, as amended to change “March 21, 2000” to “March 21, 2001.” In all other respects, the judgment is affirmed. The May 17, 2002 judgment of the OWC denying the claimant’s “Motion for New Trial/Motion for Modification” is likewise affirmed. Given the claimant’s pauper status, we decline to assess costs of this appeal to Todd.

AFFIRMED, AS AMENDED.

11 APPENDIX “A”

JAMES TODD

VS.

WAL-MART

DOCKET 01-02384 DISTRICT 6S

OFFICE OF WORKERS’ COMPENSATION

STATE OF LOUISIANA

REASONS FOR JUDGMENT

BACKGROUND

Claimant James Todd allegedly injured his right shoulder on two occasions while working at Wal-Mart, one on April 8, 2000 then again on April 13, 2000. Mr. Todd continued to work until October 4, 2000, at which time he underwent arthroscopic acromioplasty and distal clavicle resection by Dr. Brett Chiasson. He was released to return to work by Dr. Chiasson on December 28, 2000 with a lifting restriction of no greater than 5 pounds.

Mr. Todd returned to work at Wal-Mart on January 10, 2001, and worked until March 21, 2001 at which time he resigned his position, stating that Wal-Mart was not complying with his doctor’s orders regarding light duty, i.e. that he was being forced to do more physically than his doctor had recommended.

The only issues for the court to decide are (1) whether Mr. Todd suffered a com-pensable accident at Wal-Mart on April 8, 2000 and/or April 13, 2000; and (2) whether Mr. Todd is entitled to indemnity benefits subsequent to his March 21, 2001 resignation.

\ ¿FINDINGS OF FACT

The court finds that the lay testimony and medical evidence preponderates in favor of Mr. Todd as to whether he suffered a compensable injury at Wal-Mart on April 8, 2000 and/or April 13, 2000.

Wal-Mart relies on an emergency room record from North Oaks Hospital dated April 14, 2000 in which Mr. Todd allegedly reported a two-month history of right shoulder pain to cast doubt on the occurrence of an accident. However, the same report goes on to say that Mr. Todd reported that the pain got worse that night “at work while stocking shelves.” Again, on April 17, 2000 he reported first hurting his shoulder two months prior, but again goes on to say he “re-hurt right shoulder on Friday p.m. 4/14/00.”

The court finds that these inconsistencies are insignificant in light of the lay testimony of Molly Webre, Randy Bailey and John Gulota, all co-workers who testified that they were aware of Mr. Todd’s shoulder injury. Thus, the court finds that Mr. Todd suffered a compensable injury on April 8, 2000 which was subsequently aggravated by an injury on April 13, 2000 while pulling a pallet of liquid wax and stocking the wax on the shelves.

On the issue of whether Mr. Todd is entitled to indemnity benefits subsequent to his March 21, 2001 resignation, the court finds that Mr. Todd has not proven that his resignation had anything to do with restrictions from his work injury nor from his employer forcing him to work beyond his doctor’s restrictions. Mr. Todd testified that he is 58 years old. He has a history of prior injuries to his back, and his neck (which was fused in 1982 or 1983, following a motor vehicle accident). He also testified he is going blind in his right eye and that since his resignation he has been attempting to get on disability because ofjjhis many health problems. Mr. Todd testified that not only was he not offered light duty on his return to work in January 2001, he was forced to do the same job as before, i.e. pulling and pushing pallets, lifting cases of products ranging from 5 to 90 pounds, and stocking shelves with those products.

The court finds that the lay testimony of co-workers at trial categorically disputes Mr. Todd’s description of his job duties upon returning to work in January 2001.

Dewayne Gilmore was the manager of the tire and lube department at the time of Mr. Todd’s injury and return to work. Gilmore testified that upon Mr. Todd’s return to work, he had a meeting with Mr. Todd and his wife (also a Wal-Mart employee) and Denise Wilson, personnel manager at the Wal-Mart store. Mr. Gilmore testified that he told Mr. Todd that he was to wok within Dr. Chiasson’s restrictions, specifically “cleaning and zoning.” Mr. Gilmore testified that “cleaning and zoning” consisted of light dusting of the employee’s work area, and pulling products to the front of shelves. Mr. Gilmore testified that while he had heard that Mr. Todd was doing tasks outside of his restrictions, he never personally told Mr. Todd to do anything more than cleaning and zoning.

Larry Lamb testified that he was a co-manager of the Wal-Mart Store at the time of Mr. Todd’s return to work in January 2001. Mr. Lamb testified that at the time of his return to work, Mr. Todd was only supposed to be dong cleaning and zoning in the tire and lube department. Mr. Lamb testified that he offered the help of employees in his department whenever Mr. Todd would have been required to more heavy products.

Denise Wilson was the personnel manager at the Wal-Mart store at the time of Mr. Todd’s injury and return to work. Ms. Wilson’s testimony confirmed that there was a meeting held with Mr. Todd and his wife, Mr. Gilmore, and herself upon Mr. Todd’s return |4to work in January 2001. Ms. Wilson testified that Mr. Gilmore was concerned about Mr. Todd following his doctor’s restrictions regarding his 5-pound lifting limit and that Mr. Gilmore told Mr. Todd that he was only to do cleaning and zoning. She further testified that Mr. Todd was not transferred to another department since she understood that he could be accommodated in the tire and lube department. She confirmed that to her knowledge, Mr. Todd was never told to do more than cleaning and zoning, nor was he threatened with termination. She testified that on at least three occasions, she was present when Mr. Todd was told not to do anything that would exceed his doctor’s restrictions.

The court finds the testimony of Joey DiMaggio the most credible. Mr. Dimag-gio testified he has worked as a night stocker at Wal-Mart’s tire and lube department for as long as Mr. Todd has. It is important to note that Mr. Todd worked nights, usually the 9:00 p.m. to 6:00 a.m. or 10:00 p.m. to 7:00 a.m. shift.

Thus, Mr. Gilmore, Ms. Wilson and Mr. Lamb did not work side-by side with Mr. Todd, although on occasions Mr. Gilmore’s arrival at work would overlap with Mr. Todd’s departure. In any event, Mr. Dimaggio actually worked the same shift as Mr. Todd. Mr. DiMaggio testified that before Mr. Todd’s accident, they would split their duties equally. However, after Mr. Todd’s accident and subsequent return to work, Mr. DiMaggio testified that he understood that Mr. Todd was not do any heavy work and that Mr. DiMaggio was to do all the “heavy stuff.” Mr. DiMaggio testified there was plenty of light work to do, such as cleaning and zoning air fresheners, fuses, and light bulbs. He testified there were also products to be stocked which weighed less than 5 pounds. Finally, Mr. DiMaggio testified that while Mr. Todd told him Mr. Gilmore was making him do his regular job, Mr. DiMaggio |Knever heard Mr. Gilmore say this; on the contrary, Mr. DiMaggio testified that he was given the authority by Mr. Gilmore to tell Mr. Todd that he was not to lift any heavy products.

Based on the foregoing, the court finds that Mr. Todd has not proven entitlement to indemnity benefits subsequent to his resignation in March 2001.

Finally, counsel for Mr. Todd attempted at trial to raise the issue of an incorrect calculation of average weekly wage and/or compensation rate. However, this was not listed in pre-trial statement nor briefed nor supported in post-trial memorandum. Therefore, that claim is DENIED.

REASONS READ RENDERED AND SIGNED in Covington, Louisiana this the 11th day of March, 2002.

/s/ Elizabeth A. Warren ELIZABETH A. WARREN,

Workers’ Compensation Judge, Eastern Division-District 6S

      . Although the March 8, 2002 judgment specifies March 21, 2000 as the date of Todd's resignation for purposes of loss of entitlement to indemnity benefits, the parties do not dispute that this triggering date was actually March 21, 2001. Thus, in the interest of justice, we amend the judgment to correct this typographical error.

      . According to Gilmore, the “cleaning and zoning” consisted of light dusting of the employee's work area and pulling products to the front of the shelves.


author: FITZSIMMONS, J.

text:
    Tommy and Kimberly DOMINGUE and on Behalf of Their Minor Children Jordan and Jake DOMINGUE v. ALLIED DISCOUNT TIRE AND BRAKE, INC. and Dan Jones.
    No. 2002 CA 1338.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 2003.

      S. Alfred Adams, Baton Rouge, Counsel for Plaintiffs/Appellees Tommy and Kimberly Domingue and on behalf of their minor children Jordan and Jake Do-mingue.
    Dan E. West, Baton Rouge, Margaret Diamond, New Orleans, Counsel for Defendants/Appellants Allied Discount Tire and Brake, Inc. and Dan Jones.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   FITZSIMMONS, J.

Allied Discount Tire and Brake, Inc. (Allied) and Dan Jones (Jones), an employee of Allied, appeal a judgment finding Dan Jones at fault for an intentional tort committed against Tommy Domingue (Do-mingue), another employee at Allied. Following a review of the facts and pertinent law, this court affirms the judgment of the trial court.

BACKGROUND

On February 8,1996, Dan Jones (Jones), the district manager of Allied, was on the premises of one of Allied’s stores to investigate a complaint. Domingue was employed as the service manager at the store. The initial purpose of Jones’s visit to the Airline Highway Allied store is disputed. It is, however, uncontested that as a result of Jones’s review of complaints of payroll deficiencies by employees at the Airline Highway store, Domingue tendered his resignation, and the two men engaged in a physical fight.

The trial court adjudged Jones, and thereby Allied as his employer, one hundred percent liable in solido. General damages in the sum of $100,000.00 were awarded to Domingue. Domingue was also granted $82,034.20 in lost wages, $11,446.63 in past medical expenses, and $5,671.40 in future medical expenses.

Allied and Jones allege as error: the court’s finding of an intentional tort; the allocation of one hundred percent fault to Jones; causation of plaintiffs back pains, headaches, and temporomandibular joint dysfunction by the physical altercation; and the amount of general and special damages. Domingue answered the appeal, seeking an increase in the sum awarded for loss of wages.

JéAW

Intentional Tort

Jones contends on appeal that the evidence does not demonstrate that he had any intent to harm Domingue. An intentional tort of battery is a harmful or offensive contact with a person, resulting from an act intended to bring about a result which will involve the interests of another in a way that the law forbids. See Caudle v. Betts, 512 So.2d 389, 391 (La.1987). When there occurs an intentional tort of battery by one employee against another employee, the exclusivity provisions of the Louisiana Workers’ Compensation Act do not preclude the plaintiffs coextensive right to pursue a tort suit against the employer. See La. R.S. 23:1032 B; Quebedeaux v. Dow Chemical Company, 2001-2297, p. 4 (La.6/21/02), 820 So.2d 542, 545. In order to attribute the element of “intent,” within the context of La. R.S. 23:1032 B, the employer or other person identified in the act must either (1) consciously desire the physical result of his act, whatever the likelihood of the result happening from his conduct, or (2) know that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result. Reeves v. Structural Preservation Systems, 98-1795, p. 6 (La.3/12/99), 731 So.2d 208, 211. Gauging which party was the aggressor or whether excessive force was used in repelling an attack is a question of fact dependent on the particular facts and circumstances of each case. Tripoli v. Gurry, 253 La. 473, 218 So.2d 563, 564-565 (1969).

Domingue testified that Jones slung a coffee cup at him and then struck him in the eye; whereupon, Domingue went back up against a desk. This version of events was corroborated by Donald R. Dunbar, Jr., a witness, who was a tire | ¿technician at Allied at the same time that Domingue worked there. Contrarily, Jones stated that Domingue tried to hit him with the phone receiver, that Jones “threw [his] hands up to block the receiver[,]” and that he only hit Domingue in self-defense. In oral reasons for judgment, the trial court judge made the credibility determination that “Mr. Jones was the initial aggressor and his action was clearly intentional.” Moreover, the judge found that “Mr. Do-mingue did not provoke or initiate the punch which was thrown by Mr. Jones.”

When reviewing credibility determinations of fact, this court’s role is limited to ascertaining whether the fact finder’s conclusion was a reasonable one, not whether the trier of fact was right or wrong. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). We do not ascribe to the record any evidence that Domingue’s story was so internally inconsistent or implausible on its face that a reasonable fact finder would not credit the witness’s story. Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989). In the absence of such a situation in the instant case, the trial court’s determination that an intentional tort was committed by Jones is not manifestly erroneous or clearly wrong. Rosell, 549 So.2d at 845.

Percentage of Fault

Implicit in the trial court’s pronouncement that Jones intentionally initiated the fight and Allied should be cast one hundred percent liable for the acts of its employee, was the court’s exoneration of Domingue from fault. Prior to the trial of this matter, the court granted an “exception of res judicata on the issue of aggression as to defendant Allied ... but not as to defendant, Dan Jones individually.” The trial court’s finding was premised on a prior workers’ compensation judge’s determination that Domingue was not the initial aggressor.

The principles of res judicata are established in La. R.S. 13:4231. That statute states, in relevant part, that a final judgment is conclusive between the same | sparties when various conditions are met. Patin v. Patin, 2000-0969, p. 4 (La.App. 1 Cir. 6/22/01), 808 So.2d 673, 676. The record in the case at hand contains an excerpt from the workers’ compensation hearing involving Domingue. Therein, the workers’ compensation judge factually found that Domingue was not the initial aggressor. A factual conclusion issued from the bench falls short of a judgment of the court within the parameters of the application of the res judicata doctrine pursuant to La. R.S. 13:4231. Moreover, the procedural requisites and burdens of proof associated with a workers’ compensation claim are divergent from the requisites of a tort case; therefore, a factual determination in one forum does not readily substitute for the evidentiary requirements of the other. The doctrine of res judicata is stricti juris and should be rejected when doubt exists as to whether a party’s substantive rights have actually been previously addressed and finally resolved. Patin, 2000-0969, p. 5, 808 So.2d at 676.

The trial court erred in applying the doctrine of res judicata to the instant case. The court, however, properly excluded Jones from its res judicata decision; therefore, any error in its application to Allied becomes substantively inconsequential on appeal due to the trial court’s full review of the issue of aggression vis a vis Jones. It is important to note that following said consideration, the court reached a completely independent determination that Jones was the initial aggressor. Our review of the record does not disclose any manifest error in the trial court’s determination that Jones was the aggressor.

When a person responds to an attack by using more force than is necessary to repel the aggression or apparent aggression, he is liable for injuries caused by the unnecessary force. Stewart v. Vidrine, 408 So.2d 413, 416 (La.App. 1st Cir. 1981). Factors considered by the courts in a calibration of the reasonableness of action by the party being attacked include: the character and reputation of the attacker, the belligerence of the aggressor, a large difference in size and strength | ^between the parties, an overt act by the attacker, threats of serious bodily harm, and the impossibility of a peaceful retreat. Slayton v. McDonald, 29,257, p. 6 (La.App. 2 Cir. 2/26/97), 690 So.2d 914, 918; Levesque v. Saba, 402 So.2d 266, 270 (La.App. 4th Cir.1981). Domingue stated in court that he “came back swinging” in response to Jones’s provocative attack. It is not disputed that Jones was substantially larger than Domingue, and there was no evidence that Domingue’s attempts inflicted injury on Jones. Thus, the trial court’s implied conclusion that Domingue’s actions were reasonable under the circumstances and its allocation of one hundred percent fault to Allied is not manifestly erroneous. See Rosell, 549 So.2d at 844.

Causation and Damages

Allied and Jones challenge the award of damages for Domingue’s back pain, persistent headaches, temporoman-dibular joint syndrome (TMJ), and the extraction of all of Domingue’s teeth as part of the associated treatment.

Dr. Timothy R. Raborn, a general dentist, first treated Domingue for TMJ on February 16, 1996. He testified that, due to the bad condition of Domingue’s teeth, he was unable to initiate splint therapy without first extracting all of Domingue’s teeth. Domingue was not financially able to undergo the extraction until February 23, 1999; therefore, Dr. Raborn placed him on prescriptions of Motrin, Lorcet, and valium for pain throughout the three intervening years. Following the extraction of his teeth and splint therapy in 1999, Domingue was, thereafter, referred by Dr. Raborn to Dr. Neil Smith, a neurologist. Dr. Smith successfully treated him for his persistent post-traumatic migraine symptoms, thereby ultimately alleviating the chronic headaches.

Given the failure of Dr. Raborn’s treatment to fully alleviate Domingue’s symptoms and Dr. Smith’s subsequent success with Domingue’s headaches, Allied contests Dr. Raborn’s diagnosis and remedial treatment of TMJ following the |7altercation. The protracted length of time during which Domingue was placed on drugs that debilitated his capacity to work, the extraction of all of his teeth and placement of the splint, the referral to the neurologist when the splint treatment did not produce total alleviation, the subsequent success of a neurologist in relieving the headache symptoms, and the testimony by Dr. Donald Brown, an orthodontist, that there was not supportable evidence that the patient had demonstrable TMJ, do not collectively instill confidence in the dental remedy for Domingue’s symptoms. However, Domingue stated that the splint successfully eliminated his jaw pain. The court further believed Domingue’s testimony that he had never suffered jaw pain or incurred serious headaches before the injury. Moreover, Donald Dunbar and a former employer, William W. Thompson, stated that they had never heard Do-mingue complain about headaches or jaw or facial pain prior to the altercation. There is, therefore, no manifest error in the court’s finding that the source of Do-mingue’s symptoms of jaw pain and headaches and subsequent medical treatment by Dr. Raborn was the physical altercation between Domingue and Jones. Consideration of the medical appropriateness, or quality of the treatment, by a physician extends beyond the parameters of this cause of action. As such, this court does not find error in the trial court’s inclusion of the cost of medical treatment by Dr. Raborn for TMJ.

Domingue testified that when he was hit, he fell back over the desk, injuring his low back. On February 26, 1996, he began treatment with Dr. J.D. Warren, a chiropractor, naturopath, nutritionist, and holistic health provider. Dr. Warren treated him through September 19, 1996, during which time Domingue exhibited symptoms of pain in the lumbar and cervical areas of the spine, limited range of motion, lack of tactile feeling in his hands, as well as headaches. On September 9, 1996, because Domingue’s symptoms had not improved, he saw Dr. Thad S. Brous-sard, an orthopedist. Dr. Broussard noted no objective findings, just ^symptomatic complaints. An MRI test in 1997 revealed the congenital abnormality of a transitional vertebra at the L5 level, as well as bulge of the disc. Dr. Broussard opined that the bulge became symptomatic with the subject injury, which had produced a permanent back condition. Dr. Broussard stated that activities such as sitting long periods, overhead reaching, bending, lifting, twisting, mopping, and raking would result in pain and discomfort. Given this evidentia-ry support, the record does not display any manifest error in the trial court’s finding of a causal relationship between the physical blow to Domingue and his subsequent lumbar back condition. See Rosell, 549 So.2d at 844.

We next address the relationship of Domingue’s migraine headaches to the altercation. Dr. Neil Smith, a neurologist, diagnosed the onset of vascular headaches following the incident as post-traumatic migraine symptom. The treatment of prescriptive medicine significantly ameliorated, but did not cure, the symptoms. Dr. Smith opined that Domingue would continue to experience, and need treatment for, migraine headaches from time to time. There was no countervailing evidence that Domingue had suffered migraine headache symptoms prior to the altercation with Jones; therefore, the court’s imputation of a causal relationship is not clearly wrong.

Additionally, it is argued that some of Domingue’s injuries are attributable to intervening causes. On June 2, 1997, Do-mingue was involved in an automobile accident. He testified that the physical symptoms resulting from the 1996 altercation were not exacerbated by the accident. Indeed, there is no evidence of an increase in pain levels in the introduced medical records. Additionally, on May 20, 1999, Domingue received a three to four inch cut on his head when he was hit with a pipe by his neighbor. Again, there does not exist evidence in the record on review that physical symptoms related to the altercation with Jones were worsened by this event.

I ¿This court, therefore, affirms the trial court’s attribution of a causal connection between the February 1996 altercation and the low back symptoms, recurrent headaches, and TMJ dysfunction, as well as the monetary award for the costs of the ensuing medical treatment.

General Damages and Lost Wages

Allied and Jones assert that the general damages award of $100,000.00 and the lost wages award of $82,034.20 are excessive. The premise of this assignment of error rests in Allied and Jones’s contention that, in addition to the lack of a con-nexity between the altercation and Do-mingue’s symptoms, Domingue failed to take reasonable steps to mitigate his damages. Specifically, it is contended that Do-mingue’s dependency on medication for a three-year interval, until he could afford Dr. Raborn’s proposed treatment for his TMJ dysfunction, should not entitle him to lost wages and general damages because he did not attempt less debilitating medical treatment.

Domingue relied on the diagnosis and suggested treatment of Dr. Raborn. The trial court awarded him the full amount of his wage earnings at Allied prior to the functional capacity evaluation (FCE) that had been ordered by Dr. Broussard. However, for the time period following the results of the FCE prior to his return to employment, Domingue was only granted wage losses comprising the difference between his pay rate at Allied and the amount he could have earned by performing a light duty job for forty hours a week. Domingue asserts that he was not, in actuality, able to earn the sum indicated in the FCE because he had been placed on prescribed medication by Dr. Raborn.

Allied and Jones suggest that Domingue could have availed himself of less costly treatment at Louisiana’s Charity Hospital. An injured party has a duty to exercise reasonable diligence and ordinary care to mitigate his or her own damages. See Barsavage v. State, Department of Transportation and Development, 96-0688, p. 12 (La.App. 1 Cir. 12/20/96), 686 So.2d 957, 963, writs denied, 97-0595 (La.4/18/97), 692 So.2d 455 and 97-0634 (La.4/18/97), 692 So.2d 456. However, expense of treatment has been recognized as a proper consideration in determining the reasonableness of a person’s refusal to undergo treatment. Jacobs v. New Orleans Public Service, Inc., 432 So.2d 843, 846 (La.1983). The tortfeasor has the burden of showing both the unreasonableness of the victim’s refusal of treatment and the resulting aggravation of the injury. Id. (citing Glazer v. Glazer, 278 F.Supp. 476 (D.C.La.1968)).

In the instant case, Domingue’s failure to submit to treatment until three years later was solely due to his financial inability to pay for the recommended dental treatment. Allied and Jones adumbrate that Domingue should have had his teeth extracted three years earlier at Charity Hospital, which would have allowed him to return to work sooner than he did. However, there is no supportive evidence that the dental treatment was, in fact, offered at Charity; nor does the evidence reveal that Domingue could have received similar treatment at Charity. Thus, Allied and Jones have not met their burden to prove that Domingue failed to reasonably mitigate the damages.

In Domingue’s answer to the appeal, he disputes the court’s omission of the portion of wages that Domingue was deemed to be able to earn pursuant to the FCE. We do not find that the trial court erred in factoring in the period during which Domingue was on prescribed medication up to the time that the FCE was performed and Domingue and Dr. Smith were presented with objective results. Nor do we attribute error on the part of the trial court in its reliance on the FCE. The trial court award of lost wages in the sum of $82,034.20 is affirmed.

Finally, an award of general damages may not be articulated with any degree of pecuniary exactitude. Rather, general damages involve mental or physical pain or suffering, inconvenience, the loss of gratification of intellectual or physical Inenjoyment, or other losses of life or life-style which cannot really be measured definitively in terms of money. Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351, 352 (La.1974); Aycock v. Jenkins Tile Company, 96-2348, 96-2349, pp. 9-10 (La.App. 1 Cir. 11/7/97), 703 So.2d 117, 123, writ denied, 97-3056 (La.2/13/98), 709 So.2d 753. The trier of fact is, therefore, accorded discretion in the determination of the monetary amount to be given. La. C.C. art. 2324.1. In the instant case, the court awarded general damages in the sum of $100,000.00. Given Domingue’s symptoms of pain affecting his head, neck, and back that were severe enough to require prescribed medication for years, the extraction of all of his teeth, and his inability to work or perform many other activities for an extended period of time, this court does not conclude that the award of general damages is beyond that which a reasonable trier of fact could assess for the effects of this particular injury. Youn v. Maritime Overseas Carp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 1059, 127 L.Ed.2d 379 (1994).

DECREE

In sum, this court affirms the judgment of the trial court. All costs associated with the appeal are assessed to Allied Discount Tire and Brake, Inc. and Dan Jones.

AFFIRMED.

GUIDRY, J., concurs.

      . Jones testified that he went to the Allied store to investigate complaints about Do-mingue’s temperamental conduct, as well as complaints on behalf of employees of a payroll deficiency.

      . Louisiana Revised Statute 23:1032 B states: "Nothing in [the Labor and Workers’ Compensation Scope and Operation] Chapter shall affect the liability of the employer, or any ... employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.”


author: GUIDRY, J.

text:
    Virginia Gray BAKER v. TANGIPAHOA PARISH COUNCIL
    No. 2002 CA 1362.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 2003.

      Cassandra Butler, Independence, Counsel for Plaintiff-Appellant Virginia Gray Baker.
    Richard L. Seelman, Wayne J. Fontana, New Orleans, Counsel for Defendant-Ap-pellee Tangipahoa Parish Council.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   GUIDRY, J.

An accountant with the Tangipahoa Parish Council appeals a judgment of the Office of Workers’ Compensation denying her claim for medical benefits. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On October 17, 2000, the claimant, Virginia Gray Baker, filed a disputed claim for compensation against her employer, the Tangipahoa Parish Council for failure to authorize medical treatment. In her disputed claim, Mrs. Baker alleged “that repetitive and excessive typing over the years caused her to have pain in the left arm, neck, and left wrist.”

At the time she filed her disputed claim for compensation, Mrs. Baker held the position of an accounting supervisor and had worked for the Tangipahoa Parish Council for over twenty years. Although her main duties involved using the computer, her work duties additionally encompassed regular use of the telephone, which she also related as contributing to her injury. In about mid-to-late 1995, Mrs. Baker began experiencing symptoms of the pain for which she complained of in her disputed claim for compensation. As related by Mrs. Baker, her symptoms began as a tingling discomfort in her left arm that progressively worsened to extend down her arm to her hand. The tingling sensation eventually evolved into a burning sensation that radiated to her fingers causing numbness and inhibited her ability to hold objects in her left hand.

A hearing regarding Mrs. Baker’s disputed claim for compensation was held on April 8, 2002, following which the workers’ compensation judge (WCJ) rendered judgment in favor of the Tangipahoa Parish Council, dismissing Mrs. Baker’s disputed claim, with prejudice, as being untimely. In a written judgment signed April 11, 2002, the WCJ held that Mrs. Baker did not sustain an occupational disease for which she could receive compensation benefits and that [ seven if she had, her claim, nevertheless, would have been untimely. It is from this judgment that Mrs. Baker now appeals.

DISCUSSION

In bringing this appeal, Mrs. Baker disputes the WCJ’s finding that her claim had prescribed and that her injury does not qualify as an occupational disease pursuant to La. R.S. 23:1031.1. We find no error in the WCJ’s determination that Mrs. Baker’s injury does not qualify as an occupational disease under the state workers’ compensation act, La. R.S. 23:1021, et seq. Louisiana Revised Statutes 23:1031.1(B) expressly provides, in part, that “[djegen-erative disc disease, spinal stenosis, arthritis of any type, mental illness, and heart-related or perivascular disease are specifically excluded from the classification of an occupational disease for the purpose of this Section.” (Emphasis added.)

The medical evidence in the record, without exception, conclusively demonstrates that Mrs. Baker’s complaints of pain in her neck, left aim, and hand stem from extensive degenerative disc disease in her cervical spine and multi-level spondy-losis. As such, Mrs. Baker’s claim based on the diagnoses rendered by her treating physicians regarding these complaints is clearly not compensable. La. R.S. 23:1031.1(B).

Having found no error in the WCJ’s determination that Mrs. Baker’s claimed injury is not compensable as an occupational disease, we pretermit discussion of Mrs. Baker’s second assignment of error based on the WCJ’s alternative finding that her claim is prescribed.

CONCLUSION

Considering the law and the evidence in the record, we conclude that Mrs. Baker’s injuries are not compensable as an occupational disease. In so finding, we affirm the judgment of the WCJ. All costs of this appeal are assessed to the claimant-appellant, Virginia Gray Baker.

AFFIRMED.


author: ..PETTIGREW, J. | FITZSIMMONS, Judge,

text:
    Wade CLARK, Perry Tucker, Ann Guidry, Martha Lacaze and Harry Dawsey, Each Individually, and on Behalf of all Others Similarly Situated v. STATE of Louisiana, DEPARTMENT OF REVENUE
    No. 2002 CA 0703.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 2003.

      Stanley P. Baudin, Patrick W. Pendley, Plaquemine, for Plaintiffs-Appellees Wade Clark, et al.
    Geneva Landrum, Baton Rouge, for Defendant-Appellee Cynthia Bridges, Secretary of Louisiana Department of Revenue.
    James J. Davidson, III, Lafayette, for Intervenor-lst Appellant Southwest Louisiana Electric Membership Corporation.
    V. Russell Purvis, Jonesville, for Inter-venor-lst Appellant Concordia Electric Cooperative.
    Ross A. Dooley, John M. Sharp, Baton Rouge, for Intervenors-2nd Appellants Dixie Electric Membership Corporation, et al.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   ..PETTIGREW, J.

Membe,s of various local electric cooperatives allege to have paid “a thing not owed” to the State of Louisiana in the form of Louisiana state sales taxes on $169,000,000.00 in electricity overcharges. Accordingly, certain individual members became plaintiffs in a class action lawsuit (“plaintiff class members”) and seek a refund of Louisiana state sales taxes assessed on said overcharges that were remitted to the State via local electrical cooperatives between November 1996 and September 1999.

In the instant appeal, the local electric cooperatives that remitted the tax to the State on behalf of their members appeal a trial court judgment that denied their petitions for intervention in the class action lawsuit.

FACTS

According to the facts alleged in the underlying petition, Cajun Electric Power Cooperative, Inc. (“Cajun”) was a Louisiana electric cooperative that generated and transmitted wholesale electric power to various local distribution cooperatives. Cajun filed for bankruptcy in the mid-1990s.

In 1996, the Louisiana Public Service Commission (“the Commission”), pursuant to its statutory authority, conducted a ratemaking review to align Cajun’s rates with its then-current costs. The Commission found that since the appointment of the bankruptcy trustee, Cajun had not paid the accrued interest expense on its underlying debt. As a result, the Commission ordered that Cajun establish an escrow fund to deposit that portion of the charged electric rates allocated to interest expenses.

The petition alleges that the Commission did not eliminate the interest expense from the ratepayers’ electricity rates and bills between November 1996 and September 1999. Therefore, ratepayers continued to pay for the interest portion of the rates, as well as the accompanying Louisiana state sales taxes applicable for this portion of the rates.

In September of 1999, the Cajun bankruptcy case was resolved, and the Commission approved the settlement. As a condition of the settlement, the Commission received all of the funds held in the interest rate escrow account. The settlement |4provided that these escrowed funds be refunded or otherwise devoted to the benefit of ratepayers as directed by the Commission.

Consistent with the terms of the settlement, the Commission developed a plan whereby 100 percent of the overcharges of approximately $169,900,000.00 collected as the interest portion of the rates between November 1996 and September 1999 would be refunded to qualifying ratepayers. The refund payout schedule, according to the settlement, is as follows: approximately $132,100,000.00, or 78 percent of the overcharged rates collected, will be refunded by the local distribution cooperatives to ratepayers in the form of individual refund checks.

Although the aforementioned refund insures that the full amount of the overcharges, including interest, have been, or will be, returned to the ratepayers, this refund does not reimburse ratepayers for the sales tax paid on the overcharges collected. As a result, certain individual members have become plaintiffs in a class action lawsuit (“plaintiff class members”) filed on their behalf in East Baton Rouge Parish on April 19, 2001.

On October 5, 2001, various local distribution cooperatives, Dixie Electric Membership Corporation (“DEMCO”); Claiborne Electric Cooperative, Inc.; Jefferson Davis Electric Cooperative, Inc.; Northeast Louisiana Power Cooperative, Inc.; South Louisiana Electric Cooperative Association; Valley Electric Membership Corporation; Washington — St. Tammany Electric Cooperative, Inc.; and Beauregard Electric Cooperative, Inc., moved to file a petition of intervention and a motion to quash subpoenas duces tecum. Said motions were submitted to the trial court together with a supporting memorandum. On October 12, 2001, similar motions along with a supporting memorandum were filed on behalf of Southwest Louisiana Electric Membership Corporation (“SLEMCO”) and Concordia Electric Cooperative (“Concordia”). The aforementioned electrical cooperatives | ^(collectively, “the coops”) were local distribution cooperatives for electricity produced by Cajun, and in said capacity, billed and collected Louisiana state sales taxes on their sales of electricity to their members.

ACTION OF THE TRIAL COURT

Following a hearing, the trial court signed a judgment on December 10, 2001, that denied the co-ops’ motions to intervene in this matter and quash the subpoenas duces tecum. The judgment further ordered the co-ops to produce the information sought in the subpoenas duces tecum within ten days.

On February 15, 2002, DEMCO, one of the co-ops herein, filed a motion for protective order as to the information sought in the subpoena duces tecum. Also on said date, the co-ops separately appealed from the judgment of December 10, 2002.

ISSUE PRESENTED FOR REVIEW

In their respective briefs to this court, the co-ops have set forth a single issue for review by this court:

Whether the trial court erred in denying the co-ops’ petitions for intervention?

DISCUSSION

The Louisiana Constitution of 1974 provides that the appellate jurisdiction of the courts of appeal extends to both law and facts. La. Const., art. V, § 10(B). A court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding that is manifestly erroneous or clearly wrong. See Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882, n. 2 (La.1993). When the court of appeal finds that a reversible error of law or manifest error of material fact was made in the trial court, it is required to redetermine the facts de novo from the entire record and enter a judgment on the merits. Rosell v. ESCO, 549 So.2d 840, 844 n. 2 (La.1989).

In denying the petitions for intervention filed by the co-ops, the trial court stated:

| (¡The petitioners, being the coops in this matter, seek to intervene solely on the interests and rights of their members and not on any cause of action claimed by the coops in their own right. The coops allege that they have a fiduciary duty to their members to pursue the tax refund in this action, but it is undisputed the rights to be asserted in this matter belong solely to the members as individuals.
The parties in this matter have pointed out that the case law provides a three-prong test to determine if it’s proper for an association, such as the coops in the instant matter, to bring suit on behalf of their members where there’s been an absence of injury to the association itself.
The members clearly have a right to bring the instant action to collect a refund as taxes that they paid. The first prong of the analysis is satisfied, as the coops are attempting to assert rights that belong to members as individuals.
The third prong of the analysis is met as the coops can assert the rights of individuals as members. Louisiana Revised Statute 47:2 and 47:1623 would allow the coop to assert the rights of individual taxpayers as coop members. The coops can litigate and obtain relief in the same manner as individual members. However, it is the second prong of the analysis that this court finds prohibits the intervention of the coops in this matter. The purpose of the coops is to sell electricity. The purpose of the coops is not to seek refunds of sales taxes collected from the individual taxpayers. The claims of individual members seeking refunds are not relevant to the purpose of the coops, which is to provide electric service to the individual members.
The coops have not shown that their members have authorized the coops to intervene or to pursue the individual claims in this matter. The function of seeking the tax refunds on behalf of individuals is not relevant to the function of selling electricity.

The three-prong test cited by the parties and applied by the district court in this matter is a test for organizational or associational standing in cases where an organization seeks to restrain a public body from alleged unlawful action. See, Louisiana Associated General Contractors, Inc. v. State, Division of Administration, Office of State Purchasing, 95-2105, p. 5 (La.3/8/96) 669 So.2d 1185, 1190. Said test was previously adopted by the Louisiana Supreme Court in Louisiana Hotel-Motel Association, Inc. v. Parish of East Baton Rouge, 385 So.2d 1193 (La.1980) and is derived from the three-part test for associational standing set forth by the United States Supreme Court in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). See, Louisiana Associated General Contractors, Inc., 95-2105 at 5, 669 So.2d at 1190.

|7In Hunt, the Supreme Court held an association will have standing to bring a suit solely on behalf of its members and in the absence of injury to itself when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; (c) neither the claim asserted nor the relief requested requires the participation of individual members of the lawsuit. Hunt, 432 U.S. at 343, 97 S.Ct. at 2441.

In response to the finding by the trial court that the function of seeking the tax refunds on behalf of individuals is not relevant to the function of selling electricity, the coops herein assert that electrical cooperatives are unique and are authorized pursuant to the provisions of La. R.S. 12:401 et seq. Electric cooperatives are non-profit corporations organized by their members who agree to purchase all of their electricity needs from the cooperative. La. R.S. 12:408

The co-ops claim that member-owned electric cooperatives have a fiduciary obligation to their members to operate the cooperative efficiently and economically and must also protect the interests of their respective members. The co-ops further claim that in the instant case, the cooperatives have a responsibility to their members to recover sales taxes erroneously collected and remitted to the Department of Revenue (“DOR”).

Conversely, plaintiff class members contend that since the co-ops did not actually pay the sales taxes at issue, they do not have standing to prosecute claims for sales tax refunds on behalf of their members. Plaintiff class members further contend that they are the ratepayers and the only proper party plaintiffs due a sales tax refund. According to plaintiff class members, the co-ops are not necessary or indispensable parties to this action. The plaintiff class members argue that since the co-ops were not the payers of the sales taxes at issue, they do not have standing to prosecute claims for sales tax refunds on behalf of their members.

In addition, La.Code Civ. P. article 1091 relating to interventions by third persons provides:

A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
|R(1) Joining with plaintiff in demanding the same or similar relief against the defendant;
(2) Uniting with defendant in resisting the plaintiffs demand; or
(3) Opposing both plaintiff and defendant.

Article 1091 and the cases construing that provision establish that the requirement for intervention is two-fold: the intervenor must have a justiciable interest in, and a connexity to, the principal action. Livingston Downs Racing Association, Inc. v. State, Through Edwards, 96-1988, p. 6 (La.App. 1 Cir. 9/23/97) 700 So.2d 1021, 1023. In Amoco Production Company v. Columbia Gas Transmission Corporation, 455 So.2d 1260, 1264 (La.App. 4 Cir.), writs denied, 459 So.2d 542 (La.1984), 459 So.2d 543 (La.1984), the court defined the term “justiciable right” as it is used in the context of an intervention as “the right of a party to seek redress or a remedy against either plaintiff or defendant in the original action or both, and where those parties have a real interest in opposing it.”

Clearly, the' co-ops in this matter have a justiciable right in making certain that their respective members, the ratepayers of the tax, receive the correct tax refund should the court ultimately determine that such a refund is due.

More troubling is the question of whether the co-ops possess the requisite degree of connexity required by La.Code Civ. P. art. 1091. The jurisprudence has held that the justiciable right must be “so related or connected to the facts or object of the principal action that a judgment on the principal action will have a direct impact on the intervenor’s rights.” Livingston Downs Racing Association, Inc. v. State, Through Edwards, 96-1988 at 7, 700 So.2d at 1024.

In connection with the brief submitted in this matter on behalf of defendant, the Secretary of the DOR, it is asserted that “the ends of justice would be best served by allowing the cooperatives to intervene due to the fact that it is the cooperatives that are most familiar with who, if anyone, is entitled to a refund of tax in this matter.” The DOR further asserts:

The cooperatives collect the tax from the ratepayer and remit the tax to the Department of Revenue. Therefore, cooperatives already possess knowledge of the names and the addresses of each ratepayer and the cooperatives know the rate paid by the ratepayers and the amount of tax |spaid pursuant to the rates. The cooperatives will have the ability to distribute the refund, if one is determined to be due to the ratepayers without excessive fees [and] costs of administration because the customers are already identifiable and the method of reaching them is already determined through the cooperative database.

The DOR argues that the connexity requirement of La.Code Civ. P. art. 1091 is met because “it was the cooperatives that collected the tax from the ratepayers and it is the cooperatives that are familiar with who those ratepayers are.”

Plaintiff class members respond with the argument that the record contains no evidence to support the DOR’s contention that plaintiff class members will be unable to identify the ratepayers due a refund or that the administrative costs/fees will be lower if the co-ops are allowed to intervene in this action. Plaintiff class members allege that they have previously obtained the identities of a vast majority of the ratepayers affected through subpoena duces te-cums directed to the co-ops, and claim that the Louisiana Code of Civil Procedure affords ample tools to obtain whatever information they need from third parties, including the co-ops, to prosecute their claims. It is the position of the plaintiff class members that a judgment on the principal action in their favor will not have a direct impact on the rights of the co-ops who seek to intervene.

We must agree. There is no evidence in the record before us to establish that the interests of the co-ops are so related or connected to the taxes on electricity paid by their members that a judgment on the issue of a tax refund will have a direct impact on the rights of the co-ops who seek to intervene in this matter. Additionally, the authority of electrical co-ops to represent and take action on behalf of their members is set forth in La. R.S. 12:401 et seq., or their respective articles of incorporation and bylaws. Based upon our review of La. R.S. 12:401 et seq., this court finds no authority for electrical coops to pursue through legal proceedings the collection of sales taxes overpaid by their respective members. Further, the co-ops themselves have faded to cite any provision of their respective corporate articles or bylaws that would grant them this authority. Absent law or evidence cited by the electrical co-ops that authorizes said co-ops to pursue the collection of sales taxes overpaid by their respective members, we decline to permit their intervention in this matter.

ImWhile we agree that the respective coops undoubtedly possess information that could expedite the distribution of a tax refund in the event such a refund is subsequently ordered by the court, this fact alone is insufficient to warrant the co-ops’ intervention in this action. Accordingly, we must conclude that the trial court did not err in denying the co-ops’ petitions for intervention.

CONCLUSION

For the above and foregoing reasons, the judgment of the trial court denying the co-ops’ petitions for intervention is hereby affirmed. All costs associated with this appeal shall be assessed against the coops, Dixie Electric Membership Corporation (“DEMCO”); Claiborne Electric Cooperative, Inc.; Jefferson Davis Electric Cooperative, Inc.; Northeast Louisiana Power Cooperative, Inc.; South Louisiana Electric Cooperative Association; Valley Electric Membership Corporation; Washington — St. Tammany Electric Cooperative, Inc.; Beauregard Electric Cooperative, Inc.; Southwest Louisiana Electric Membership Corporation (“SLEMCO”); and Concordia Electric Cooperative (“Con-cordia”).

AFFIRMED.

FITZSIMMONS, J., dissents and assigns reasons.

| FITZSIMMONS, Judge,

dissenting with reasons.

The road from Thebes to Athens goes from Athens to Thebes. There is no reason to detour to Sparta when addressing the subject of tax overcharges. I would reverse the trial court and grant the cooperatives’ petition for intervention. .

Thus, I respectfully dissent from the majority’s legal conclusion that the local distribution cooperatives do not have standing to intervene in the instant lawsuit. The local distribution cooperatives were the sole -conduit through which the Louisiana Public Service Commission delegated the refunding of overcharges. Thus, the role of the cooperatives as a necessary entity for the return of tax refunds is inextricably related to the cooperatives’ function and purpose.

      . As part of their motion to quash, the co-ops alleged that some of them had been served by plaintiff class members with subpoenas duces tecum requesting that they produce certain documentation regarding customers who received utility rate overcharge refund checks as well as the amount of the refund check received by each customer. The co-ops claimed that the requested documentation is designed solely to identify the names and addresses of potential class members. The coops further claimed that their petition for intervention obviated the need for them to produce the requested documentation.

      . The trial court scheduled a hearing on DEMCO’s motion for protective order for April 8, 2002; however, the record does not disclose the outcome of said hearing.

      .