author: I LAUNDERS, J.

text:
    CITGO PETROLEUM CORPORATION v. Lowell FRANTZ.
    No. 03-0088.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2003.

      John Rabalais, Covington, LA, for De-fendani/Appellant Citgo Petroleum Corp.
    Tina L. Wilson, Cox, Cox, Filo, Camel & Wilson, Lake Charles, LA, for Plaintiff/Ap-pellee Lowell Frantz.
    Court composed of ULYSSES GENE THIBODEAUX, JOHN D. SAUNDERS, and BILLY H. EZELL, Judges.
   I LAUNDERS, J.

The defendant, Citgo Petroleum Corporation (hereinafter “Citgo”), appeals a ruling of the workers’ compensation court finding that it failed to meet its burden of proving a violation of La.R.S. 28:1208 by the plaintiff, Lowell Frantz, and awarding the plaintiff payment and/or reimbursement for medical expenses, as well as temporary total disability benefits. We affirm.

FACTS

On or about April 28, 2000, Lowell Frantz suffered injuries to his right shoulder and right knee while in the course and scope of his employment as a machinist with Citgo. Mr. Frantz alleges that these injuries occurred when he fell after catching his foot underneath a pump protruding from the ground. The parties stipulated that Mr. Frantz’s average weekly wage was $1,062.29, and that his weekly compensation rate was $384.00. Mr. Frantz was also involved in a motor vehicle accident on July 2, 2000. The parties dispute the extent of Mr. Frantz’s injuries resulting from this auto accident. Mr. Frantz claims that he injured his shoulder in the auto accident and struck his head, which resulted in a brief loss of consciousness. He maintains that he did not injure his knee in this auto accident, or even exacerbate the existing work related knee injury for which he is seeking compensation benefits. Cit-go claims that Mr. Frantz struck his knee on the dashboard of his vehicle in the auto accident and is concealing this for the purpose of obtaining workers’ compensation benefits.

On August 7, 2001, Citgo’s workers’ compensation insurer filed a disputed claim for compensation. In this claim, it is alleged that Mr. Frantz’s benefits were terminated at that time because he failed to report to Citgo, or its workers’ compensation carrier, that he had settled his claim arising out of the automobile | ^accident, in violation of La.R.S. 23:1102. Mr. Frantz asserts that, on May 23, 2002, he exercised his rights under the “buy-back” provision of La.R.S. 23:1102 by issuing a check to the compensation carrier for one-half the amount of the settlement from the automobile accident. According to Mr. Frantz, his workers’ compensation benefits should have been reinstated at that point, however, Citgo failed to reinstate benefits. Cit-go claims that Mr. Frantz injured his knee in the July 2, 2000 motor vehicle accident and that his repeated denials of this constitute a violation of La.R.S. 23:1208(A), requiring a forfeiture of all workers’ compensation benefits under La.R.S. 23:1208(E).

After a hearing on the merits on October 24, 2002, the workers’ compensation judge (“WCJ”) found in favor of the claimant, Lowell Frantz, and against Citgo Petroleum. Specifically, the hearing officer found that Citgo did not meet its burden of proving a violation of La.R.S. 23:1208 by Mr. Frantz. In her judgment, dated November 4, 2002, the hearing officer ordered Citgo to pay and/or reimburse Mr. Frantz for all medical treatment related to the work accident, including but not limited to a total knee replacement, and to pay temporary and total disability benefits from May 23, 2002, to the present and continuing.

The WCJ did not provide written reasons for her ruling. However, she did provide an oral explanation of her ruling at the conclusion of the trial on the merits. In that oral statement, the WCJ stated:

There is conflicting testimony between Mr. Frantz and the physical therapist, Mr. Worley, as to whether or not Mr. Frantz hit his knee on the dashboard of his vehicle in the motor vehicle accident. Regardless of whether Mr, Frantz hit the dashboard, Mr. Worley, the physical therapist testified by deposition that he believed Mr. Frantz did not injure his knee in the motor vehicle accident because in a few days it seemed to return back to where it was prior to the motor vehicle accident. This was set forth in Mr. Worley’s deposition at Page 19, Line |322. The Court finds that the evidence is evenly balanced and while the Court may not accept all of the testimony as true, this court does not believe the evidence is strong enough to support a finding of 1208 fraud. There is contradictory testimony between the court-appointed IME and the employer’s choice of physician. Giving significant weight to the court appointed independent medical examiner, the Court finds that the claimant is entitled to additional knee surgery.

Citgo presents the following issues on appeal:

1) The trial court committed legal error by not finding that Claimant’s numerous false statements in his deposition, medical reports and trial testimony constituted willful misrepresentation in violation of La. R.S. 23:1208.

2) The trial court committed legal error by not ordering forfeiture of workers’ compensation benefits as a result of a violation of the provisions of La.R.S. 23:1208.

LAW AND ARGUMENT

Citgo brings this action seeking a forfeiture of Mr. Frantz’s workers’ compensation benefits based on an alleged violation of La.R.S. 23:1208. Section 1208 provides in pertinent part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

Citgo contends that the WCJ’s judgment constitutes legal error and, therefore, is not entitled to deference by this court on review. The standard of review for questions of law is presented in Conagra Poultry Co. v. Collingsworth, 30,-155, p. 2 (La.App. 2 Cir. 1/21/98), 705 So.2d 1280, 1281-82.

Appellate review of questions of law is simply to determine whether the trial court was legally correct or legally incorrect. Cangelosi v. Allstate Ins. Co., 96,0159 (La.App. 1 st Cir. 9/27/96), 680 So.2d 1358, writ \ ¿denied 96-2586 (La.12/13/96), 692 So.2d 375; National Tea Co. v. Plymouth Rubber Co., 95,254 (La.App. 5 th Cir. 10/18/95), 663 So.2d 801 citing Phoenix Assur. Co. v. Shell Oil Co., 611 So.2d 709 (La.App. 4 th Cir.1992). If the trial court’s decision was based on its erroneous interpretation or application of law, rather than a valid exercise of discretion, such incorrect decision is not entitled to deference by the reviewing court. Roberts v. Cox, 28,094 (La.App.2d Cir. 2/28/96), 669 So.2d 633; Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983).

Citgo claims that the WCJ committed legal error in basing her judgment on an additional test not required by the statute. As a basis for this statement, Citgo contends that the WCJ’s ruling is based on statements by Mr. Worley indicating that, even if Mr. Frantz had hit his knee on the dashboard during the auto accident, it caused no permanent injury as his knee returned to its pre-accident condition within a few days. Citgo argues that section 1208 does not require a finding that a condition was substantially worsened by the undisclosed injury.

As we will discuss below, we find that' the WCJ did not commit legal error in this matter. The oral reasons given by the WCJ for her ruling are quoted above and we find no mistake of law in the rationale she presents for her judgment. Additionally, however, Citgo argues that the WCJ committed manifest error by finding that not all testimony was truthful, yet failing to find a violation of La.R.S. 23:1208. If we review the WCJ’s ruling as a mixed question of fact and law, the standard of review on appeal is a manifest error standard of review with deference granted to the ruling of the trial court.

In Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840, pp. 7-8 (La.7/1/97), 696 So.2d 551, 556 (alteration in original), the supreme court clearly set out the standard of review for factual findings in workers’ compensation matters as follows:

Factual findings in workers’ compensation cases are subject to the | ^manifest error or clearly wrong standard of review. Smith v. Louisiana Dep’t of Corrections, 93-1305, p. 4 (La.2/28/94), 633 So.2d 129, 132; Freeman v. Poulon/Weed Eater, 93-1530, pp. 4-5 (La.1/14/94), 630 So.2d 733, 737-38. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Freeman, 93-1530 at p. 5, 630 So.2d at 737-38; Stobart v. State, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 882. Thus, “if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

The supreme court has noted that determinations by hearing officers regarding credibility or truthfulness are more properly determined at the trial level than by a court of appeal. In Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (citations omitted), the supreme court stated:

When findings are based on determinations regarding the credibility of witnesses, the manifest error — clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.

Based upon the standard provided above, we. must turn to a discussion of section 1208 and the analysis of claims of fraud under the statute to determine whether the WCJ’s ruling constitutes manifest error or is clearly wrong. In Resweber v. Haroil Const. Co., 94-2708, p. 7 (La.9/5/95), 660 So.2d 7, 12, the supreme court set forth a three-part test for finding a forfeiture of benefits under La.R.S. 23:1208:

Section 1208 is clear and unambiguous and as such will be applied as written. La.Civ.Code art. 9; La.R.S. 1:4. Section 1208 clearly applies to any willful false statements or representations made “for the purpose of obtaining or defeating any benefit or payment.” Section 1208 has no language limiting it to only certain types of false statements, i.e., statements other than those relating to prior injuries. The legislature has imposed no notice requirement in Section 1208, I ^apparently being of the opinion that any claimant should be on notice that false statements made willfully for the purpose of obtaining workers’ compensation benefits will not be tolerated and will result in the forfeiture of those benefits. The only requirements for forfeiture of benefits under Section 1208 are that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment.

In further clarification of these criteria, the court went on to state that:

[T]he statute does not require the forfeiture of benefits for any false statement, but rather only false statements that are willfully made for the purpose of obtaining benefits. It is evident that the relationship between the false statement and the pending claim will be probative in determining whether the statement was made willfully for the purpose of obtaining benefits. A false statement which is inconsequential to the present claim may indicate that the statement was not willfully made for the purpose of obtaining benefits. Clearly, an inadvertent and inconsequential false statement would not result in forfeiture of benefits.

Id. at p. 16, 660 So.2d at 17 (second emphasis added).

In her oral reasons for judgement, presented at the conclusion of the October 24, 2002 hearing, the WCJ noted that there was conflicting testimony between Mr. Frantz and his physical therapist, Mr. Worley. Instances of discrepancy in testimony, and the necessary credibility determinations resulting from such discrepancies, are precisely the kind of determinations that the supreme court found entitled to great deference by an appellate court on review.

Mr. Worley’s allegation that Mr. Frantz admitted to striking his knee on the dashboard of his vehicle in the automobile accident is completely uncorroborated. The WCJ cannot be said to have committed manifest error in choosing to credit Mr. Frantz’s testimony in such an instance. The WCJ stated that she found the evidence evenly balanced, and while she admitted that she did not accept all the testimony as true, she did not specifically indicate which party’s testimony she found lacking. The WCJ did make specific reference to the contradictory testimony between the court-appointed IME and the employer’s choice of physician, and she gave great weight to the testimony of the courtrjappointed7 IME. It is well within the WCJ’s much discretion to make such a determination.

Additionally, even were the WCJ to specifically state that she found Mr. Frantz’s testimony untruthful, the necessary inquiry does not stop with the recognition of that untruth. The Besweber test for a finding of 1208 fraud requires that all three elements of the test be satisfied. In addition to a finding that there has been a false statement or representation, it must have been willfully made and made for the purpose of obtaining benefits. The WCJ clearly indicated that she was aware of the Resweber test and its requirements by reciting them in her reasons for judgment at the hearing. She stated that, in her opinion, not all parts of this test were satisfied.

The WCJ concluded that, even if Mr. Frantz’s testimony were false, there was insufficient evidence to meet the remaining criteria for a finding of 1208 fraud. In light of the fact that Mr. Frantz apparently sustained a head injury significant enough to cause a brief loss of consciousness during the auto accident, it is understandable that his recollection of the motor vehicle accident, and any resulting injuries, would be less than clear. Therefore, inconsistencies in his early accounts of accident related injuries, such as those to Mr. Worley, could have been the result of remaining confusion as those alleged statements to Mr. Worley occurred the day following the accident. In light of the above considerations, WCJ was not manifestly erroneous in her finding that Mr. Frantz’s alleged inconsistent statements regarding his injuries lack the willfulness required to support an allegation of 1208 fraud. For the reasons stated above, we find that the WCJ’s oral reasons for judgement represent no manifest error in her evaluation of the testimony and evidence presented at trial.

^Because there is no finding of 1208 fraud, Mr. Frantz did not forfeit his right to compensation benefits under La.R.S. 23:1208(E).

DECREE

For the foregoing reasons, we affirm the ruling of the WCJ in its entirety. We assign all costs of this appeal to Citgo.

AFFIRMED.


source: Caselaw Access Project

author: JjGREMILLION, Judge.

license: Public Domain

text:
    Johnny Leroy COBB, et al. v. DELTA EXPORTS, INC., et al.
    No. 08-0033.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2003.

      John Charles Anderson, Robert Wick-liffe Fenet, J. Konrad Jackson, Fenet, Jackson & Anderson, New Orleans, LA, Jere Jay Bice, J. Rock Palermo III, Bice & Palermo, Lake Charles, LA, for Plaintiffs/Appellants Johnny Leroy Cobb and Margaret C. Cobb.
    James R. Nieset, Plauche, Smith, & Nieset, Lake Charles, LA, for Defendants/Appellees City of Lake Charles Continental Insurance Company.
    Albert David Giraud, Ginger Kaye DeForest, Ungario & Eckert, Metairie, LA, for Defendants/Appellees America Ins. Co., Waste Management, Inc, and Delta Exports, Inc.
    Russell Joseph Stutes Jr., Scofield, Gerard, Veron, et al, Lake Charles, LA, for Defendants/Appellees Greg Massey and Linda Massey.
    Randall C. Mulcahy, Stockwell, Sievert, et al., Lake Charles, LA, for Defendants/Appellees State Farm Mutual Auto Ins. Co.
    Court composed of ULYSSES GENE THIBODEAUX, OSWALD A. DECUIR, and GLENN B. GREMILLION, Judges.
   JjGREMILLION, Judge.

The plaintiffs, Johnny Leroy Cobb and Margaret C. Cobb, appeal the judgment in favor of the defendants, the City of Lake Charles, Waste Management of Louisiana, and Delta Exports, Inc., granting their motions for summary judgment and dismissing them from the case. For the following reasons, we reverse in part, affirm in part, and remand.

FACTUAL AND PROCEDURAL BACKGROUND

Following a January 1997 ice storm, the city of Lake Charles undertook the substantial task of cleaning up the debris and damage left behind in its wake. Because of the enormity of the project, the City contracted with Waste Management, Inc. to assist in the debris removal. Waste Management contracted with Delta Exports, who hired Jack Gibson, of J & P Logging, to provide equipment and manpower for the cleanup process.

On February 7,1997, Johnny was traveling down Lake Street in Lake Charles and proceeded to turn on to Louie Street where he saw that a crew was working to remove debris from the sides of the street. The crew was using a front-end loader and a crane and they were loading the debris into large eighteen-wheeler dump trucks. Johnny waited awhile before deciding he would attempt to pass the large dump trucks. He entered the opposing lane and moved forward until he encountered the front-end loader, driven by James Wright, which backed into the front of his truck.

The Cobbs filed suit urging that his vehicle was destroyed and that he suffered severe personal injuries. The action was removed to the United States | ^District Court for the Western District of Louisiana, but was remanded to the Fourteenth Judicial District Court in November 1999.

In November 2000, the City filed a motion for summary judgment urging that it had no obligation to provide traffic control and did not exercise any control over the cleanup activities. In May 2002, Delta filed a motion for summary judgment urging that they could not be deemed vicariously liable for the acts of Wright since J & P was a subcontractor, rather than its servant, and was in no direct contractual relationship with Waste Management. Also in May 2002, the Cobbs filed a motion for partial summary judgment urging that there were no genuine issues of fact as to the City, Waste Management, and Delta Exports’ liability pursuant to La.Code Civ.P. art. 966. In July 2002, in an effort to prevent delay, the Cobbs dismissed Jack Gibson from the case because he had filed for bankruptcy.

Following a hearing on September 11, 2002, the trial court rendered judgment on the City, Waste Management, and Delta’s motions for summary judgment, dismissing the Cobb’s claims against them. The Cobbs now appeal.

ISSUES
The Cobbs assign as error:
1. The trial court’s dismissal of the City and its insurer based solely on the finding that debris cleanup of a city street does not constitute “maintenance,” when they have other the-ones of liability against the city under La.Civ.Code art. 2815 and 2817 and La.R.S. 9:2800.
2. The trial court’s failure to find the City liable under a theory of strict liability for failing to provide Johnny with the legally required warnings of a dangerous condition on the roadway under the sole care, custody, and control of the City.
|s3. The trial court’s finding that the City was not responsible for clearing debris from the street following an ice storm as its charter provides it with a duty to maintain city streets.
4. The trial court’s finding that the City could delegate its responsibilities and liability for safe removal of debris and warning the motoring public of dangerous conditions on the roadway.
5. The trial court’s finding that the risk of inadequate notice of a dangerous condition on a city street lies with the motoring public, rather than with the city or its contractor, which assumed the obligation to provide notice.
6. The trial court’s grant of summary judgment in favor of Waste Management although the trial court found that Waste Management had a contractual obligation to provide total traffic control for the debris clean up operations in the city.
7. The trial court’s finding that a contract existed between Waste Management and Delta Exports and Delta Exports and Jack Gibson.
8. The trial court’s finding that Jack Gibson was the legal employer of James Wright.
9. The trial court’s grant of summary judgment in favor of Waste Management and Delta Exports when conflicting genuine issues of material fact precluded a conclusion as to who was the legal employer of James Wright and who was in control of the cleanup operations in the city.

SUMMARY JUDGMENT

On appeal, summary judgments are reviewed de novo. Magnon v. Collins, 982822 (La.7/7/99), 739 So.2d 191. Thus, the appellate court asks the same questions the trial court asks to determine whether summary judgment is appropriate. Id. This inquiry seeks to determine whether any genuine issues of material fact exist and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B)(0). This means that judgment should be rendered in favor of the movant |4if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show a lack of factual support for an essential element of the opposing party’s claim. If the opposing party cannot produce any evidence to suggest that it will be able to meet its eviden-tiary burden at trial, no genuine issues of material fact exist. Id. Material facts are those that determine the outcome of the legal dispute. Soileau v. D & J Tire, Inc., 97-318 (La.App. 3 Cir. 10/8/97), 702 So.2d 818, writ denied, 97-2737 (La.1/16/98), 706 So.2d 979. In deciding whether certain facts are material to an action, we look to the applicable substantive law. Id. Finally, summary judgment procedure is favored and designed to secure the just, speedy, and inexpensive determination of every action. La.Code Civ.P. art 966(A)(2).

THE CITY

The Cobbs urge that they met their burden of proving the City’s liability, that summary judgment should have been granted in their favor, and that summary judgment was improperly granted in favor of the City. We agree that the trial court improperly granted summary judgment in favor of the City.

Questions of negligence are generally inappropriate for disposition by summary judgment. Schuetz v. Best Merchandise, Inc., 97-43 (La.App. 3 Cir. 6/4/97), 696 So.2d 169. While the city is not the insurer of the motoring public, it does have a duty to keep its roadways in reasonably safe condition. We find that there is a genuine issue of material fact as to whether the city was negligent in its handling of the clean-up process.

Proceedings against a public entity for damages resulting from a defective condition in the roadway, whether based on strict liability or negligence, | ¡¡entail the same elements. La.Civ.Code art. 2317 states:

We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.

La.Civ.Code art. 2317.1 states:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have know of the ruin, vice, or defect which cased the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case

La.R.S. 9:2800 addresses the limitation of liability for public bodies and states in pertinent part:

A. A public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody.
B. Except as provided for in Subsection A of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had reasonable opportunity to remedy the defect and has failed to do so.
C. Constructive notice shall mean the existence of facts which infer actual knowledge.
D. A violation of the rules and regulations promulgated by a public entity is not negligence per se.

In Bellard v. South Central Bell Telephone Co., 96-1426, pp. 4-6 (La.App. 3 Cir. 8/27/97), 702 So.2d 695, 700, writ denied, 97-2415 (La.12/12/97), 704 So.2d 1202 | (/footnotes omitted), we set forth the applicable law pertaining to a government body’s duties regarding its public roads:

It is well settled that the parish owes a duty to maintain the roads in its custody and control in a reasonably safe condition. Carroll v. Evangeline Parish Police Jury, 94-1138 (La.App. 3 Cir. 3/1/95); 651 So.2d 424, writ denied, 95-806 (La.5/5/95); 654 So.2d 329. However, this duty does not require the parish to be an insurer of travelers on its roads, but instead, requires the road to be in a reasonably safe condition so that prudent and careful drivers will not be exposed to injury. Hasha v. Calcasieu Parish Police Jury, 94-705 (La.App. 3 Cir. 2/15/95); 651 So.2d 865, writs denied, 95-667, 95-676 (La.4/28/95); 653 So.2d 592, 593; Pitts v. Bailes, 551 So.2d 1363 (La.App. 3 Cir.), writ denied, 553 So.2d 860 (La.1989), writ denied, 556 So.2d 1262 (La.1990). Additionally, the Louisiana legislature has placed the responsibility on parish authorities to maintain traffic control devices upon highways within its jurisdiction. See La. R.S. 32:235(B).
This responsibility is the basis of a legal duty to the public.
Because of this responsibility, the police jury has the legal duty to erect warning signs sufficient to warn motorists of hazardous conditions. McCoy v. Franklin Parish Police Jury, [414 So.2d 1369 (La.App. 2d Cir. 1982.)]. The failure to so warn subjects the parish to liability for damages resulting from the breach of that duty.
Carroll, 651 So.2d at 426, citing Langer v. Bienville Parish Police Jury, 541 So.2d 360, 362 (La.App. 2 Cir.), writ denied, 546 So.2d 177 (La.1989). However, liability hinges on the parish having actual or constructive knowledge of the existence of the hazardous or unreasonably dangerous condition. A determination of whether the parish has breached its duty will depend on the facts and circumstances present in each case. Manasco v. Poplus, 530 So.2d 548 (La.1988).
Whether damages are sought under a theory of negligence or strict liability, the elements to be proven by a plaintiff before he/she can recover from a government defendant based on a defective condition of a roadway are the same. La.Civ.Code art. 2315; La.Civ.Code art. 2317; La.R.S. 9:2800; Ryland v. Liberty Lloyds Ins. Co., 93-1712 (La.1/14/94); 630 So.2d 1289. A plaintiff must prove that: (1) the defendant owned or had custody of the thing which caused the damage; (2) the thing was defective in that it created an unreasonable risk of harm to others; (3) the defendant had actual , or constructive knowledge of the defect and failed to take corrective actions within a reasonable time; and (4) the defect |7was a cause-in-fact of the accident. Faulkner v. State, Dep’t of Transp. & Dev., 25,857, 25,858 (La. 2 Cir. 10/26/94), 645 So.2d 268, writs denied, 94-2901, 94-2908 (La.1/27/95); 649 So.2d 390; Newsom v. State, Dep’t of Transp. & Dev., 93-815 (La.App. 3 Cir. 3/30/94); 640 So.2d 374, writ denied, 94-1118 (La.6/24/95); 641 So.2d 207.

The trial court did not address this issue, but dismissed the city finding that it was relieved of any liability because it could delegate the non-maintenance duty of cleaning up the debris after the ice storm. The contract with Waste Management did provide that it would be responsible for traffic control. It stated:

This is a total service package that provides size reduction, collection hauling, & cleanup of the material. Contractor will be responsible for providing signs, barricades, and flagmen for total traffic control during the collection and hauling operation.

We shall not address the issue of the appropriateness of the city’s delegation of its duty to clean-up the streets following the storm. Even if the duty was appropriately delegated, there exists a material question of fact regarding the negligence of the city.

The Cobbs claim there was some evidence suggesting that city employees drove around to make sure the clean-up operations were under way. Accordingly, they argue that the city was aware of the lack of traffic control. If the City had knowledge of the failure of Waste Management and its successors to provide traffic control and if it failed to take corrective actions to remedy the situation, there is a material question of fact as to whether the City breached its duty to provide a reasonably safe roadway. The ultimate factual question would be whether a genuine issue of fact exists with respect to whether the lack of traffic control created an unreasonable risk of harm. In that regard, it is for the factfinder to determine whether this breach, if it is so found, was the cause-in-fact of the Cobbs’ injuries. Therefore, we find that the trial court improperly granted summary judgment in favor [sof the City as there exists a material question of fact in this case.

The Cobbs urge that there is no genuine issue of material fact that the City is strictly hable to them and that the trial court failed to even address the issue. The Cobbs urge that the City is strictly liable to them under La.Civ.Code art. 2317 and La.R.S. 9:2800, by virtue of its ownership, care, custody, and control of the city street and its knowledge that a dangerous condition, a front end loader traversing the street, picking up debris, and placing same into one of two eighteen wheeler trucks, existed on it. The Cobbs further claim that the City was aware of this condition as evidenced by the contract it had with Waste Management.

• It is undisputed that the City has ownership and garde over Louie Street. The Cobbs claim that the unreasonably dangerous condition that existed on it, which the City was aware of, was the front-end loader picking up debris and the failure of the City to warn Johnny of the absence of “traffic safety steps being taken to protect the motoring public.” For the reasons stated above, we find that these issues are for the factfinder to determine and are not appropriate for a summary judgment determination. We, therefore, affirm the trial court’s denial of Cobb’s motion for partial summary judgment.

NON-DELEGABLE DUTY

The Cobbs further urge that the City could not delegate the maintenance and cleaning of Louie Street pursuant to its own city charter, which adopted all of the rules of the Department of Transportation and Development. The Cobbs urge these rules are a matter of public policy and are affirmative duties that cannot be abrogated by contract. The trial court found that the removal of the storm debris was not | ¡/‘maintenance,” thus, the job of clearing the debris was a delegable duty. Since we have found that the issue of the City’s liability does not hinge on whether this duty could be delegated, this issue is moot and we need not address it here.

OBLIGATIONS

Finally the Cobbs argue that, even if it were delegable, a transfer of obligations does not release the original obligor pursuant to La.Civ.Code art. 1821. Similarly, this issue is also rendered moot by our findings that summary judgment in favor of the City was inappropriately granted.

WASTE MANAGEMENT AND DELTA EXPORTS

The Cobbs have alternative theories of liability against Waste Management. In the first, the Cobbs urge that, pursuant to the contract it had with the City, it agreed to assume total traffic control, and its failure to do so, by not communicating the need for traffic control to Delta Exports, was negligence resulting in his injuries. In the second, they urge that Waste Management is vicariously hable as the borrowing employer of Wright.

We find it was inappropriate to dismiss Waste Management via summary judgment. Clearly, per its contract with the City, it assumed a duty to provide total traffic control pertaining to the cleanup operation. Thus, the determination of whether it communicated this duty (and the extent of the risk encompassed by this duty) to Delta Exports is a fact issue to be determined by the factfinder and not to be resolved on a summary judgment motion. Thus, we find the trial court erred in granting summary judgment in favor of Waste Management.

ImThe Cobbs also urge alternative claims against Delta Exports. First, they claim Delta is vicariously hable for the negligence of Wright, as the employer or borrowing employer, and second, because it has garde liability under La.Civ.Code art. 2317 for the care, custody, and control of the front end loader.

Finally, we dechne to address the Cobbs assignments of error pertaining to the employer/employee issues. Because we have found summary judgment was inappropriate, these issues should also be addressed by the factfinder at a trial on the merits.

CONCLUSION

The denial of the plaintiff-appellants’, Johnny Leroy Cobb and Margaret C. Cobb, motion for partial summary judgment is affirmed. The trial court’s grant of summary judgment in favor of the defendants-appehees, the City of Lake Charles, Waste Management of Louisiana, and Delta Exports, Inc., is reversed and this matter is remanded for further proceedings. Costs of this appeal are assessed equally among the defendants.

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.


author: I,DOUCET, Chief Judge.

text:
    STATE of Louisiana v. Shannon Scott TOUCHET.
    No. 03-10.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2003.
    Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant Appellant, Shannon S. Touchet.
    Michael Harson, District Attorney, Keith A. States, Assistant District Attorney, Lafayette, LA, for State of Louisiana.
    Court composed of NED E. DOUCET, JR., Chief Judge, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   I,DOUCET, Chief Judge.

Shannon Scott Touchet was originally charged by grand jury indictment with first degree murder, but the charge was later amended to second degree murder. The Defense filed two motions to suppress, which were denied by the trial court after a hearing held June 6, 2002. Jury selection in the case commenced August 8, 2002, and the following day, the Defendant was found guilty as charged. The Defense waived the sentencing delays and the Defendant was sentenced to life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence.

On appeal, defense counsel has filed a motion to withdraw as counsel of record pursuant to the procedures outlined in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The Defendant filed a pro se brief, alleging three assignments of error. For the following reasons, we grant defense counsel’s motion to withdraw and affirm the Defendant’s conviction and sentence.

FACTS:

On March 18, 1998, Shannon Touchet, Ronald Benson and Reginald Basile borrowed their Mend Nicholas Domingue’s car and drove from Lake Charles to the newly-constructed home of Ronald and Rosanna Shaw in Youngsville with the intent to rob the Shaws. The Defendant, Shannon Touchet, had worked on the construction of the home and shared information regarding the victim’s wealth with Benson and Basile. The three men planned the robbery approximately two weeks before it was carried out and the plan involved the possible murder of Ronnie Shaw.

On the night of the robbery, the three men left Lake Charles with a bag containing two loaded guns belonging to Benson and Basile, and three ski masks. The plan was that the Defendant was to stay outside while Benson and Basile went | ¡jnside the house to “get the money.” The three men hid behind the garage and when the Shaws returned home from grocery shopping, they were confronted outside their home by the three masked men. Benson approached Mr. Shaw, whose arms were full of grocery bags, and shot him twice. Ba-sile then shot him once more. Benson ordered Mrs. Shaw at gunpoint to retrieve her husband’s keys. She then opened the door and entered the house. She was taken at gunpoint to the closet in the master bathroom and was ordered to open the safe located there. After the contents of the safe were removed, Mrs. Shaw was led to the kitchen where she begged for her life. She was then locked in an area of the bathroom (the “toilet closet”) and the assailants left.

According to the Defendant’s statement, when Basile and Benson entered the house with Mrs. Shaw, he ran and got the car, which had been parked a distance away. The Defendant admitted receiving about three or four hundred of the five thousand dollars taken from the Shaws’ home.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by the court for errors patent on the face of the record. Our review of the record reveals no errors patent.

MOTION:

In State v. Benjamin, 673 So.2d 528 (La.App. 4 Cir.1990), the Fourth Circuit set forth the appropriate procedures for an appellate court to analyze an An-ders case:

When appointed counsel has filed a brief indicating that no non-Mvolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the record, Anders requires that counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own behalf. This court’s review of the record will consist of (1) a review of the bill of information or indictment to insure the defendant was properly charged; |3(2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal.

Id., at 531.

This court has performed an independent, thorough review of the record, including pleadings, minute entries, the bill of information and transcripts. The Defendant was originally charged by grand jury indictment with first degree murder. The State subsequently amended the charge to second degree murder, which is permissible. See State v. Offord, 95-290 (La.App. 3 Cir. 10/4/95), 663 So.2d 296. The Defendant was present at all crucial stages of the proceedings and he was convicted by a unanimous verdict of the charged offense. The Defendant subsequently received a mandatory sentence of life imprisonment without benefit of parole, probation or suspension of sentence. We find no issue which would arguably support an assignment of error on appeal. We now address those issues raised by the Defendant in his pro se brief.

ASSIGNMENT OF ERROR NO. 2:

The Defendant contends he had only the intent to commit robbery, not murder and the State has “transferred specific intent to kill to this Petitioner.” Because this issue concerns the sufficiency of the evidence presented at trial, we have addressed it first in accordance with State v. Hearold, 603 So.2d 731 (La.1992).

Specific intent to kill was not a necessary element for the State to have proved at trial. .“Unlike first degree murder, no intent to Mil or inflict great bodily harm is necessary to be a principal to second degree murder occurring during the course of a robbery.” State v. Logan, 36,042, p. 9 (La.App. 2 Cir. 6/14/02), 822 So.2d 657, 14663. The felony-murder doctrine is set forth in La.R.S. 14:30.1(A)(2)(a) as follows:

A. Second degree murder is the killing of a human being:
(2)(a) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, forcible rape, aggravated arson, aggravated burglary, aggravated Mdnapping, second degree Mdnapping, aggravated escape, drive-by shooting, armed robbery, first degree robbery, or simple robbery, even though he has no intent to Mil or to inflict great bodily harm.
The law of principals is contained in La.R.S. 14:24:
All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

This court reviewed the standard for reviewing claims of insufficient evidence in State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371, appeal after remand, 97-1682 (La.App. 3 Cir. 6/3/98), 715 So.2d 518, stating as follows:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

|sWe find there was ample evidence to prove beyond a reasonable doubt that the Defendant was a principal to the armed robbery and murder of Ronnie Shaw. Although the Defendant testified at trial that Benson led the “whole ordeal” and that he (the Defendant) “pretty much didn’t want to do it,” he admitted that he provided information regarding the victim’s wealth and went along with the plan to rob the Shaws. Additionally, Nicholas Domingue testified the Defendant told Domingue that Mr. Shaw was very rich and “it would be a good opportunity to jack [rob] him.” The Defendant showed Benson and Basile where the Shaws lived and was aware of the possibility that Benson would kill Mr. Shaw. Additionally, as the trio was leaving for Lafayette, the Defendant brought from his house the bag containing two loaded guns belonging to Benson and Basile and three ski masks to be used in the robbery. Finally, the Defendant drove the getaway car and shared in the proceeds of the robbery. Considering the Defendant’s involvement, we find there was sufficient evidence to convict the Defendant as a principal to the second degree murder of Ronnie Shaw. Thus, we find this claim has no merit.

The Defendant also contends in this assignment of error, “[t]he records (sic) also reflects that Petitioner was in a drug induced state at the time of the crime.” In the August 6, 1998, statement, the Defendant said that he had some marijuana in the bag containing the guns and ski masks and, later in the statement, he admitted to recreational use of the drug. However, the Defendant does not point to, nor did we find, any evidence that the Defendant was in a “drug-induced state” at the time of the offense.

ASSIGNMENT OF ERROR NO. 1:

The Defendant claims a portion of his statement to police was involuntary and |fithat the issue should have been argued by counsel on appeal. The Defendant appears to additionally argue that the confession was a product of police misconduct.

During his confession, the Defendant initially acknowledged that he had previously informed the officer (prior to the recorded statement) that Benson said he was going to have to kill Mr. Shaw. Later in the confession, the Defendant said Benson did not actually say he wanted to kill Mr. Shaw. However, the Defendant subsequently admitted again that he did tell the officer earlier that Benson said he was going to have to kill Mr. Shaw. At trial, the Defendant was questioned about his conflicting statements. He testified that Benson never expressed an intent to kill Mr. Shaw and that the detectives had trained him [the Defendant] what and what not to say.

At the hearing on the Defendant’s motion to suppress, Sergeant Allen Venable, of the Lafayette Parish Sheriffs Office, testified that the Defendant was arrested at his home in Lake Charles on August 6, 1998, and transported to Lafayette, where he was questioned. Sergeant Venable testified that he advised the Defendant of his rights and that he posed no questions to the Defendant prior to doing so. Sergeant Venable filled out the waiver of rights form with the Defendant, which the Defendant signed. According to Sergeant Vena-ble, the Defendant was questioned after being advised of and waiving his rights. During questioning, the Defendant was very cooperative and no pressure was used or promises made to obtain a statement. Later in the morning, the Defendant gave a recorded statement to Sergeant Venable and Detective Arthur Lebreton.

Detective Lebreton testified that prior to taking the recorded statement from the Defendant, he too advised him of his rights, which the Defendant waived. The 17Pefendant proceeded to answer the questions posed to him and did not, at any time, request an attorney. According to Deputy Lebreton, the Defendant did not appear to be under duress or under the influence of any alcohol or medication and he appeared to understand what he was doing. Deputy Lebreton testified that the Defendant was not promised anything in exchange for his statement.

We find the evidence shows the Defendant’s statement was given freely and voluntarily. The issue of “police misconduct” was explored at trial. After the Defendant gave the aforementioned testimony regarding his knowledge of the plan to kill the victim, the State called Sergeant Vena-ble as a rebuttal witness. Sergeant Vena-ble testified that, after advising the Defendant of his rights, he was advised that the Defendant wished to speak to someone. At the time, Detective Lebreton was interviewing one of the other suspects. Sergeant Venable testified that he spoke to the Defendant, but did not tell the Defendant what to say or how to say it.

On cross-examination, Sergeant Venable testified that, in talking to the Defendant prior to the recorded statement being taken, the Defendant said that Benson did not say that the plan was to kill the victim no matter what. The Defendant told Sergeant Venable that Benson said they would kill the victim if they had to.

The jury apparently found Sergeant Venable’s testimony credible, and it is not this court’s role to assess the credibility of the witnesses. Thus, we find the Defendant’s claim that he was coached as to what to say in his recorded statement mer-itless.

ASSIGNMENT OF ERROR NO. 3:

In this assignment of error, the Defendant discusses the evolution of Anders pri- or to arguing that “counsel had enough evidence in the records to successfully I amount a defense — state counsel took the short-cut and abandoned the Petitioner.” He additionally contends that his counsel’s failure to raise any arguable issues on appeal “created presumption of prejudice prong of defendant’s claim of ineffective assistance of counsel. In that, defendant was essentially left without representation on appeal.” These are very general allegations which present nothing for this court to review. Accordingly, they are denied.

DECREE:

We find the Defendant’s pro se claims lack merit and, after our review of the record, we find there are no claims which arguably support an appeal. Thus, we affirm the Defendant’s conviction and sentence and grant counsel’s motion to withdraw.

AFFIRMED. MOTION TO WITHDRAW GRANTED.


author: _y?ICKETT, Judge.

text:
    Yvette P. PATTON, et al. v. Joseph Craig LEMOINE, et al.
    No. 03-6.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2003.
    Yvette P. Patton, In Proper Person, Zwolle, LA, for Plaintiff-Appellant Yvette P. Patton.
    Christopher Lee Whittington, Attorney at Law, Baton Rouge, LA, for Intervenor-Appellee Christopher Whittington.
    C. Rodney Harrington, Attorney at Law, Natchitoches, LA, for Intervenor-Appellee C. Rodney Harrington.
    W. Fred Smith, Attorney at Law, Winn-field, LA, for Intervenor-Appellee W. Fred Smith.
    Court composed of NED E. DOUCET, JR., Chief Judge, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   _y?ICKETT, Judge.

Yvette Patton, representing herself, appeals a judgment of the trial court apportioning attorney fees among her several former attorneys. For the following reasons, we affirm the judgment of the trial court.

STATEMENT OF THE CASE

This litigation arises from a rear-end collision. The underlying facts of this case were set forth fully in this court’s opinion in Patton v. Lemoine, 00-765 (La.App. 3 Cir. 11/14/00), 776 So.2d 513, writ denied 01-230 (La.4/12/01), 789 So.2d 591. The only issue raised in this appeal is the apportionment of attorney fees. Originally, the trial court apportioned the attorney fees among three of Patton’s former attorneys. The award was equal to 55% of the total judgment ($24,684.70 of a total judgment of $44,805.00). This court reversed that award. Citing Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102 (La.1978) and O’Rourke v. Cairns, 95-3054 (La.11/25/96), 683 So.2d 697, we held that since the maximum contingency fee contract signed with any of the attorneys was for 40 percent, the attorney fee award could not exceed 40 percent. The case was remanded for reapportionment of attorney fees.

On remand, the trial court held a hearing, at which only Patton was present, representing herself. The three attorneys involved, Christopher Whittington, C. Rodney Harrington, and W. Fred Smith, were all sent notice of the hearing. Mr. Whit-tington waived his appearance. Service to Mr. Smith was unsuccessful, and he was not present at the hearing. Mr. Harrington did not appear.

Following the hearing, the trial court awarded $3084.00 to Mr. Whittington, $6649.00 to Mr. Harrington, and $8187.00 to Mr. Smith. The amounts awarded to Mr. Whittington and Mr. Harrington remained the same as the original award. Only | ?Mr. Smith’s award was decreased so that the total amount awarded equaled $17,920.00, or 39.9955% of the total judgment.

Patton appeals this ruling.

ASSIGNMENTS OF ERROR

The appellant alleges two assignments of error:

1. The trial court abused its discretion by only ordering one attorney to repay the plaintiffs.
2. The trial court reapportionment is in violation of the Code of Professional Responsibility.

DISCUSSION

During the course of the original litigation, Patton hired three different attorneys and then fired them when each suggested she settle her claim for an amount nearly identical to the amount she eventually was awarded following a jury trial. The trial court’s Reasons for Judgment on remand are clear and concise. It finds that Mr. Whittington conducted initial discovery and filed the suit. He was able to secure a settlement offer close to the final judgment, but Patton refused and fired him.

Mr. Harrington earned his fee by taking the depositions of expert witnesses that constituted the entirety of the medical evidence in the trial. He also was able to secure a settlement offer equal to or exceeding the final judgment.

Mr. Smith was retained only a few days before the trial. He is the attorney who actually conducted the trial. The trial court found that $8187.00 was adequate to compensate him and ordered the excess of $6781.00 that he withdrew from the registry of the court refunded to Patton.

lain Saucier, the supreme court stated that contingency fees are to be allocated among various attorneys in a situation such as this one pursuant to the Code of Professional Responsibility. Rule 1.5(a) states:

A lawyer’s fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
(1)The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) The fee customarily charged in the locality for similar legal services;
(4) The amount involved and the results obtained;
(5) The time limitations imposed by the client or by the circumstances;
(6) The nature and length of the professional relationship with the client;
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) Whether the fee is fixed or contingent.

The trial court clearly took these factors into consideration. It’s findings are factual determinations which should not be disturbed absent manifest error. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). The appellant’s assignments of error lack merit. The judgment of the trial court is affirmed. All costs of this appeal are assessed to Yvette Patton.

AFFIRMED.


author: L SULLIVAN, Judge.

text:
    Elizabeth June Wiley and Otis WILEY v. RAPIDES REGIONAL MEDICAL CENTER, et al.
    No. 02-1439.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2003.

      Frederick B. Alexius, Jeremy C. Cedars, Provosty, Sadler, deLaunay, Fiorenza & Sobel, Alexandria, LA, for Defendanf/Ap-pellee, Beverly Antony.
    Michael H. Davis, Davis & Saybe, L.L.P., Alexandria, LA, for Plaintiff/Appellant, Otis Wiley.
    Victor H. Sooter, Sooter & Associates, Alexandria, LA, for Defendant/Appellee, Larry Myers.
    Randall M. Seeser, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Defendant/Appellee, Rapides Regional Medical Center.
    Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and BILLY H. EZELL, Judges.
   L SULLIVAN, Judge.

The trial court granted an exception of no right of action dismissing Otis Wiley as a Plaintiff in a medical malpractice action arising from his ex-wife’s reaction to a drug administered during surgery, after finding that Mr. Wiley transferred all of his interest in that suit, including his loss of consortium claim, to his former spouse in their community property partition. For the following reasons, we affirm.

Facts and Procedural History

On April 19, 2002, Elizabeth and Otis Wiley filed suit against Dr. Larry Myers; Beverly Antony, a nurse anesthetist; and Rapides Health Care System d/b/a Rap-ides Regional Medical Center, alleging that Mrs. Wiley sustained neurological damage from the improper administration of the drug Anzemet during surgery on November 17, 2000. The petition also alleged that Plaintiffs sustained damages for “[p]ast and future loss of consortium, services, nurturing and society.”

On June 3, 2002, Ms. Antony filed an exception of no right of action as to Mr. Wiley, alleging that he transferred all of his interest in the medical malpractice action to Mrs. Wiley in their community property partition that was incorporated into a judgment of April 19, 2001. Attached to the exception was a copy of the community property partition agreement, which provided:

ELIZABETH SANDERS WILEY hereby receives and OTIS W. WILEY, hereby grants, bargains, transfers, sells, conveys and delivers unto her, with full guaranty of title and complete transfer, all of her [sic] right, title and interest in and to the following described property:
4. All interest in the law suit of Elizabeth Sanders Whey versus Rapides Regional Medical Center;....

Elsewhere in the agreement, the parties acknowledged two items of Mr. Wiley’s separate property: a $65,000.00 certificate of deposit and a $12,000.001 ?down payment made on a truck that Mr. Wiley received in the partition. The agreement further provided: “Both of the parties hereto do hereby assert that this partition constitutes a transaction and compromise of their respective claims, rights, and obligations under the provisions of Article 3071, et seq., of the Louisiana Civil Code, as amended.”

In opposition to the exception, Mr. Wiley filed his own affidavit, in which he stated that he “at no time entered or did in fact release or convey any rights he possesses against defendants for his loss of consortium damages which are his separate property and thus not subject to community property partitions.”

At the hearing on the exception, the trial court stated that it considered Mr. Wiley’s affidavit to be self-serving. The trial court granted the exception based upon Mr. Wi-. ley’s failure to reserve the consortium claim as his separate property after transferring “all” of his interest in the medical malpractice suit to Mrs. Wiley.

Opinion

In Mississippi Land Co. v. S & A Properties II, Inc., 01-1623, pp. 2-3 (La.App. 3 Cir. 5/8/02), 817 So.2d 1200, 1202-03 (citations omitted), we explained the purpose of an exception of no cause of action, as well as the standard for reviewing a trial court’s decision to grant or deny one, as follows:

Under La.Code Civ.P. art 927, a defendant may raise the peremptory exception of no right of action. An exception of no right of action has the function of determining whether the plaintiff has any interest in the judicially enforced right asserted. The function of this exception is to terminate the suit brought by one who has no judicial right to enforce the right asserted in the lawsuit. The determination of whether a plaintiff has a right of action is a question of law. Accordingly, we review exceptions of no right of action de novo.

h3n their community property partition, Mr. and Mrs. Wiley stated that their agreement was a transaction and compromise under La.Civ.Code arts. 3071-83. Article 3071 provides in part:

A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.

In Brown v. Drillers, Inc., 93-1019, pp. 7-9 (La.1/14/94), 630 So.2d 741, 748-49 (citations omitted) (footnotes omitted), the supreme court reviewed the law pertaining to the interpretation of a disputed compromise as follows:

Shifting back to the codal provisions, LSA-C.C. Art. 3071 further provides that a compromise is a written contract. It follows that the compromise instrument is the law between the parties and must be interpreted according to the parties’ true intent. It also follows that the compromise instrument is governed by the same general rules of construction applicable to contracts.
LSA-C.C. Art.2046 sets forth a general rule of construction, providing that “[w]hen the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” The underscored word “further” in this article signifies the true nature of contractual interpretation. The determination that the language contained in a contract is clear and explicit, in itself, involves an interpretive process. For that reason, LSA-C.C. Art.2046 emphasizes that the process involves no further interpretation, as opposed to no interpretation at all.
LSA-C.C. Art. 3078 contains a supplementary rule of construction governing the interpretation of the operative language, and the determination of the scope, of a compromise agreement. LSA-C.C. Art. 3073 provides that a compromise agreement extends only to those matters that the parties expressly intended to settle and that the scope of the transaction cannot be extended by implication. More precisely, LSA-C.C. Art. 3073 set[s] forth the following four factors to be considered in determining the scope of a compromise instrument:
Transactions regulate only the differences which appear clearly to be comprehended in them by the intention of the parties,
whether it be explained in a general or particular manner,
unless it be the necessary consequence of what is expressed; and
they do not extend to differences which the parties never intended to include in them.
The meaning and intent of the parties to a written instrument, including a compromise, is ordinarily determined from the four corners of the instrument, and extrinsic (parol) evidence is inadmissible either to explain or to contradict the terms of the instrument. Louisiana courts, however, have crafted a special exception to the extrinsic evidence rule for compromise agreements based on an in pari materia reading of LSA-C.C. Art. 3073’s provision that a compromise extends only to those differences the parties’ clearly comprehended and LSA-C.C. Art. 3079’s provision that an error as to the subject matter in dispute is a ground to rescind a compromise.
Louisiana courts, however, have tempered that jurisprudential rule, recognizing that absent some substantiating evidence of mistaken intent, no reason exists to look beyond the four corners of the instrument to ascertain intent. Utilizing a case-by-case, factual analysis, Louisiana courts have limited the rule’s application to cases in which substantiating evidence is presented establishing either (1) that the releasor was mistaken as to what he or she was signing, even though fraud was not present; or (2) that the releasor did not fully understand the nature of the rights being released or that the releasor did not intend to release certain aspects of his or her claim. When the factual circumstances surrounding the execution of the release instrument do not fall within either of the above categories, Louisiana courts, applying LSA-C.C. Art.2046’s general rule of construction, have not hesitated to confine their analysis to the four comers of the instrument.

In Brown, the issue presented was whether a pre-death release executed by a husband and wife settling all claims for the husband’s personal injuries included the wife’s subsequent wrongful death claim, where the release did not expressly refer to the husband’s death as a possible consequence of the accident. In allowing the wife to proceed with her wrongful death claim, the supreme court considered that the | .^release did not reference a wrongful death claim and that the tort victims’s personal injury claim and his survivor’s wrongful death claim were “legally separate and distinct actions,” although they arose from the same tortious conduct. Id. at 751.

In McCall v. Cameron Offshore Boats, Inc., 93-787 (La.App. 3 Cir. 3/9/94), 635 So.2d 263, this court concluded that a release executed by the wife in a divorce action in favor of her husband did not bar her personal injury claim against her husband’s closely-held corporation arising out of an accident that occurred while she was driving a vehicle owned by the corporation. Even though the release provided that she discharged “any and all claims and demands of every kind and character whatsoever ... against HENRY ALBERT MCCALL, JR., his predecessors, affiliates, insurers, representatives, agents, successors, assigns and employees,” we found that the release, when read in full, clearly settled only those claims arising from the divorce. Id. at 265. In particular, we noted that the compromise was silent as to any claims against the husband’s corporation for the wife’s injuries in the automobile accident.

In LeBouef v. Gross, 506 So.2d 879 (La.App. 1 Cir.1987), however, the court concluded that the wife’s pre-trial release of her personal injury claims, in which she reserved only the husband’s claims for his injuries, precluded any award for her consortium damages at trial. The court stated:

The cause of action for loss of consortium is granted to specific relations of an injured person, in this case the spouse. The damages are separate and distinct from those of the injured person. However, we find that Mrs. LeBouef settled all of her claims. The settlement agreement reserved only Mr. LeBouefs claims for his personal injuries. The agreement did not limit Mrs. LeBouef s settlement claims solely to her own physical injuries. Consequently, Mrs. LeBouefs claim for loss of consortium was settled prior to trial.

Id. at 881 (emphasis added).

hAt issue in the present case is whether Mr. Wiley’s transfer of “all [his] interest” in Mrs. Whey’s medical malpractice action included his loss of consortium claim. Mr. Wiley argues that, because the transfer was executed in the compromise of an action to partition community property, it could not have included his loss of consortium claim, which was his separate property. We disagree. The agreement clearly states that Mr. Whey is transferring “all” of his interest in the medical malpractice action to his former spouse; it does not reserve any of that interest to him. Additionally, elsewhere in the agreement, the parties specifically listed two other items of Mr. Whey’s separate property, but that list did not include his loss of consortium action. Under these circumstances, we find that the analysis in LeBouef provides guidance in resolving this dispute. Accordingly, we agree with the trial court that, because Mr. Whey did not reserve his loss of consortium claim, he is no longer the proper party to prosecute that action.

Decree

For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Appellant, Otis Wiley.

AFFIRMED.


author: liGLENN B. GREMILLION, Judge.

text:
    Robert C. PAULEY v. WAL-MART STORES, INC.
    No. 02-1354.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2003.

      Marcus Miller Zimmerman, Lake Charles, LA, for Plaintiff/Appellee, Robert C. Pauley.
    Charles Martin Kreamer, Sr. Allen & Gooch, Lafayette, LA for Defendant/Appellant, Wal-Mart Stores, Inc.
    Court composed of NED E. DOUCET, JR., Chief Judge, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   liGLENN B. GREMILLION, Judge.

The defendant, Wal-Mart Stores, Inc., appeals the judgment of the workers’ compensation judge finding that the plaintiff, Robert Pauley, injured his back as a result of a work-related accident, that he did not commit fraud in obtaining workers’ compensation benefits, and that he was a full-time employee. For the following reasons, we affirm.

FACTS

On February 15, 2001, Pauley alleged that he injured his lower back while lifting a case of motor oil at the Wal-Mart store located in DeRidder, Louisiana. His shift ran from 10:00 p.m. until 7:00 a.m., and he alleged that the accident happened at approximately 6:45 a.m. He stated that he felt an immediate pain and tingling in his lower back, radiating down to his toes, and that he had trouble walking. Although he did not report the accident before leaving, he returned with his grandmother at approximately 8:00 a.m. and did so. Pauley was sent by Wal-Mart to Dr. Charlotte Fowler, a family physician, who diagnosed him as suffering from a sprain and strain of his lumbar spine. A February 28, 2001 MRI revealed a herniated disc at L5-S1 with impingement of the right neural canal. Dr. James Perry, an orthopedic surgeon, treated Pauley conservatively with an epidural steroid injection, but then recommended that he undergo a discectomy at L5-S1. Wal-Mart obtained a second opinion from Dr. William Foster, a neurosurgeon, who agreed With Dr. Perry’s recommendation of surgery.

On May 9, 2001, Pauley filed a disputed claim for compensation based on Wal-Mart’s failure to authorize the recommended surgery and to have his workers’ ^compensation rate corrected. Wal-Mart denied Pauley’s allegations and filed a First Supplemental and Amending Answer Alleging 1208 Fraud. It alleged that Pau-ley stated in his Wal-Mart associate statement and in a February 16, 2001 recorded statement that he had never injured his back before, when in fact he had suffered back injuries on three previous occasions, and that he failed to inform Drs. Perry and Foster of these prior injuries. Wal-Mart further alleged that, although Pauley denied suffering any previous work-related injuries in his recorded statement, he had, in fact, suffered two prior work-related injuries. Wal-Mart notified Pauley that it was terminating his workers’ compensation benefits based on the aforementioned fraud effective August 13, 2001.

Following a hearing on the merits, the workers’ compensation judge took the matter under advisement. Thereafter, she rendered written reasons for judgment finding that Pauley proved he suffered a work-related injury, that he was entitled to workers’ compensation benefits as a full-time employee, and that he did not commit 1208 fraud. She further held that the matter was reasonably controverted, thus, denying Pauley’s request for penalties and attorney’s fees. Judgment was rendered on September 11, 2002. This suspensive appeal by Wal-Mart followed.

ISSUES

On appeal, Wal-Mart raises three assignments of error. It argues that the workers’ compensation judge erred in finding that Pauley proved that he suffered a work-related accident, that he did not commit 1208 fraud, and that he was entitled to workers’ compensation benefits as a full-time employee.

| ¡¡Pauley has answered the appeal alleging that the workers’ compensation judge erred in failing to award him penalties and attorney’s fees. He also seeks additional attorney’s fees for work performed on appeal.

FORFEITURE OF BENEFITS

La.R.S. 23:1208(A) provides, “It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.” Thus, in order for an employer to prove forfeiture pursuant to La.R.S. 23:1208, it must prove that a false representation was willfully made by the employee for the purpose of obtaining compensation benefits. Resweber v. Haroil Constr. Co., 94-2708 (La.9/5/95), 660 So.2d 7. An inadvertent or inconsequential false statement will not result in the forfeiture of benefits. Jim Walter Homes, Inc. v. Prine, 01-116 (La.App. 1 Cir. 2/15/02), 808 So.2d 818. Whether or not an employee has forfeited his right to such benefits is a question of fact, which will not be reversed on appeal in the absence of manifest error. Smith v. Quarles Drilling Co., 99-171 (La.App. 3 Cir. 6/2/99), 741 So.2d 829, writ denied, 99-1949 (La.10/8/99), 751 So.2d 227.

Wal-Mart introduced an associate statement in which Pauley stated he had never injured his back before. However, it introduced evidence that Pauley was treated at the W.O. Moss Regional Medical Center on January 22, 2001, after being involved in a one-vehicle- accident on January 19, 2001. A lumbosacral spine x-ray was negative for acute compression fracture, but revealed a narrowed L5-S1 intervertebral space. Pauley was diagnosed with a lumbar sprain, prescribed pain | dedication, and recommended to refrain from working for one week. The records of Dr. Chuen Kwok on January 29, 2001, reveal that Pauley reported he had been involved in a car accident two weeks prior and that he was taking hydrocodone for lower back pain.

Wal-Mart also introduced evidence that Pauley suffered a lower back injury on January 13, 2000, when he was assaulted by several assailants. During this incident, he was struck in the head by a two-by-four board, hit with beer bottles, and had his head shaved with an electric razor. He was treated at Women’s and Children’s Hospital in Lake Charles, and was diagnosed as suffering from a contusion of his back, as well as a broken nose. Finally, Wal-Mart introduced evidence that Pauley complained of lower back pain after the vehicle he was riding in was struck from behind in March 1993. He was treated at Women’s and Children’s Hospital for complaints of lower back pain. Cervical and lumbar spine x-rays were normal. He was diagnosed as suffering from minimal cervical and lumbar sprains. Drs. Perry and Foster both testified that Pauley failed to relate these incidents of prior back pain to them.

Wal-Mart next raised a statement made by Pauley in his recorded statement that he had never been involved in any motor vehicle accidents prior to his alleged work-related injury. However, it introduced evidence of his January 19, 2001 accident and three prior accidents in which he was involved. He sustained a knee injury in a December 1998 accident, sustained injuries to his shoulder and neck in an October 1996 accident, and was involved in the March 1993 accident discussed above.

Wal-Mart’s final allegation of fraud pertains to Pauley’s explanation in his recorded statement as to why he failed to immediately report his February 15, 2001 work-related accident. In his statement, he explained that he did not report the accident immediately because this was the first time he had been hurt at his job. However, Wal-Mart introduced evidence that Pauley had suffered two prior work-related accidents, both while working at Pepper’s Restaurant in Lake Charles. On November 24, 1996, he suffered a grease burn to his hand and was treated at Lake Charles Memorial Hospital; on September 13, 1997, he slipped and injured his right knee and received treatment at Women’s and Children’s Hospital. It further introduced evidence that Pauley underwent three days of orientation and received a handbook when he began working at Wal-Mart, which discussed the need to report all work-related accidents immediately.

Wal-Mart also introduced the testimony of Gregory Poteet and Jeremy Lindsay. Poteet, the Tire and Lube Express manager at the DeRidder Wal-Mart, testified that he was told by Lindsay that Pauley hurt his back while working on his truck at home. He further stated that he saw Pau-ley on the date of his accident between 6:00-6:30 a.m., and that he did not appear to be in pain at that time. He further testified that a member of management is always present at the store.

Lindsay testified that Pauley told him that he hurt his back during his January 19, 2001 accident and that he hurt it slightly while repairing his truck following the accident. However, while under cross examination, Lindsay admitted that he last spoke with Pauley in December 2000.

Pauley testified that he did not mention his prior back injuries in his associate statement, to Drs. Fowler, Perry, and Foster, or in his deposition because he either forgot about the injuries or because they were so minor he did not think they mattered. With regard to his January 19, 2001 accident, Pauley testified that he had broken up with his girlfriend, so he loaded his belongings into his truck after getting off work at 7:00 a.m. He stated that he was traveling at thirty-five miles per hour between Longville and Lake Charles, when his load shifted causing his truck to veer off the road. He stated that he ended up in a ditch after he overcorrected the truck’s movement. Pauley stated and that the accident occurred at approximately 7:80 a.m. He testified that he hit his head on the rearview mirror, but that he did not hurt his back. He further stated that he did not miss any work as a result of this accident.

Pauley testified that he was at Moss Regional on January 21, 2001, for a followup visit pertaining to his kidney stones and that his grandmother suggested he go to the emergency room because he was sore from the accident. He stated that the doctor prescribed him pain medication and recommended that'he stop working for one week. However, he testified that he did not take the medication and did not miss work because he had already missed too much work due to the kidney stones. Pau-ley further testified that he saw Dr. Kwok, his urologist, on January 29, 2001, and that he told him that he was prescribed pain medication as a result of the January 19, 2001 accident, but that he was not taking it.

With regard to his January 13, 2000 assault, Pauley admitted that he was treated at Women’s and Children’s Hospital after the attack, and that he complained of moderate low back pain from being kicked in the back. He stated that he was |7diagnosed as suffering from a back contusion. With regard to the March 1993 auto accident, Pauley testified that he did not recall being involved in the accident, nor did he recall undergoing a back x-ray as a result of that accident.

When questioned about his answer that he had never been involved in any motor vehicle accidents prior to his work-related accident, Pauley testified that he either did not understand the question or that he did not hear the question. He further stated that someone was talking to him at the same time that Djuana Mabry, with Claims Management, Inc., was taking his statement.

Pauley farther explained that he did not report his work-related accident before leaving work because he attempted to page a manager, but they failed to answer the page. He stated that he did not put this information in his associate statement or tell Mabry because he did not know that he was supposed to do so. He further stated that he told Mabry that he was unsure of what to do because this was the first time he had gotten hurt at this job. When she asked if this was his first workers’ compensation claim, he stated that he thought that she meant his first claim at Wal-Mart.

Pauley testified that he graduated from A.M. Barbe High School in Lake Charles, and that he made A’s and B’s during his junior and senior years. However, he stated that he was in the lower level of his class during high school. Although he did not fail any classes in high school, he testified in his deposition that he failed the first and seventh grade and that he suffered from Attention Deficit Hyperactivity Disorder and Attention Deficit Disorder. He further stated that he attended Sowela Tech for one year studying automotive mechanics.

[¡¡Holly Brumit, Pauley’s grandmother, testified that Pauley suffers from phenylk-etonuria (PKU), a rare, inherited metabolic disease, and, as a result, he has a low I.Q., a hard time remembering, and is easily confused and upset. Dr. Foster testified that this disease could have a definite affect on a person’s thought processes, memory, and mental function, and that it could cause mental retardation. Dr. George Middleton, a clinic psychologist, evaluated Pauley when he was sixteen. His report reveals that Pauley suffered brain damage as a result of the late discovery of his PKU. Under his behavioral observations, Dr. Middleton states that Pauley’s response style is inconsistent, “varying between careful and careless responses.”

In her written reasons for judgment, the workers’ compensation judge stated:

While the claimant’s credibility was placed at issue, the court does not believe that his actions accelerate to 1208 fraud. The court does not accept low average intelligence as a reason not to tell the truth, but the court simply does not believe claimant deliberately made misrepresentations or omissions of fact for the purpose of collecting workers’ compensation benefits.

The workers’ compensation judge held that Pauley’s omissions of fact were not willfully made. Since she was in the best position to determine whether Pauley was credible, her decision to credit his testimony must be given great deference. Rosell v. ESCO, 549 So.2d 840 (La.1989). The workers’ compensation judge was presented with sufficient evidence to find that these omissions were inadvertent, considering that Pauley suffers from PKU. Even Dr. Foster stated that this condition could affect his mental thought processes. Accordingly, we cannot say that it was unreasonable for the workers’ compensation judge to find that Pauley did not commit fraud and her judgment on this issue is affirmed; Wal-Mart’s assignment 19of error is dismissed as being without merit.

PROOF OF ACCIDENT

Wal-Mart next argues that the workers’ compensation judge erred in finding that Pauley proved that he suffered a work-related accident on February 15, 2001.

In order to receive workers’ compensation benefits, a worker must first establish, by a preponderance of the evidence, “personal injury by accident arising out of and in course of his employment.” La.R.S. 23:1031(A). As stated in Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992):

A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13 Louisiana Civil Law Treatise, Workers’ Compensation, § 253 (2d Ed.1980). Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends. Malone & Johnson, supra; Nelson [v. Roadway Express, Inc., 588 So.2d 350 (La.1991)], supra. Corroboration may also be provided by medical evidence. West, supra.
In determining whether the worker has discharged his or her burden of proof, the trial court should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent “circumstances casting suspicion on the reliability of this testimony.” West, 371 So.2d at 1147; Holiday v. Borden Chemical, 508 So.2d 1381, 1383 (La.1987). The trial court’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error. Gonzales v. Babco Farms[Farm], Inc., 535 So.2d 822, 824 (La.App. 2d Cir.), writ denied, 536 So.2d 1200 (La.1988) (collecting cases).

Furthermore, findings of fact based on credibility determinations demand great deference on appeal. “[0]nly the factfin-der can be aware of the variations in 1 mdemeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.” Rosell, 549 So.2d at 844.

In her written reasons for judgment, the workers’ compensation judge found that Pauley sustained his burden of proving a work-related accident by a bare preponderance of the evidence. She further stated that the evidence presented during the hearing substantiated his version of the accident, rather than casting doubt on it. A review of the record reveals that this finding is reasonable.

Pauley testified that he picked up a box of gallon containers of oil and turned to put it on the shelf when he felt his back pop. He stated that he immediately felt a tingling from his lower back to his toes. He testified that he left after his shift ended fifteen minutes later, and that the tingling feeling continued as he drove his truck, which was a standard, to his grandmother’s home. He stated that he called her and told her to meet him at the hospital. However, she told him to go to her house and that she would take him to the hospital. He stated that she called Wal-Mart and was told to bring him there so he could fill out an accident report. After he did that, he said that Wal-Mart sent him to Dr. Fowler.

Dr. Fowler’s medical records reveal that Pauley complained of pain in his right leg and that he exhibited tenderness over the mid “PSIS” and down the right leg. He also had decreased range of movement in his hip. On February 19, 2001, he had muscle spasms in his right, middle lumbar area, which radiated down his right leg. His gait was antalgic, favoring the left leg. Dr. Fowler’s notes state that she was worried that he had a herniated disc, so she recommended an MRI. A February 28, 2001 MRI revealed a mild, broad-based, right paracentral-right lateral disc protrusion In at L5-S1, with some compromise of the right neural canal. As a result of the MRI, Dr. Fowler referred Pauley to an orthopedist.

Dr. Perry examined Pauley on March 5, 2001, at which time he complained of lower back and right leg pain for the preceding three weeks after hurting himself while lifting boxes at work. Dr. Perry noted minimal motion in his lumbar spine, a positive straight leg raise test at twenty to twenty-five degrees when seated and lying down, positive cross straight leg raise test on the left when seated and lying down, and decreased sensation in the right L5 distribution. Dr. Perry testified in his deposition that these findings confirmed the findings of the MRI. He recommended an epidural steroid injection. Although this provided some relief to Pauley, he still exhibited symptoms at his next appointment on March 20, 2001. Dr. Perry then recommended a course of anti-inflammatory medication. When this failed to produce results by his next examination on April 3, 2001, Dr. Perry recommended that Pauley undergo a discectomy.

Dr. Foster examined Pauley at the request of Wal-Mart, on May 22, 2001. After reviewing the MRI and performing an examination, Dr. Foster felt that Pauley exhibited a classical herniated nucleus pul-posus at L5-S1, on the right. He agreed with Dr. Perry’s recommendation of surgery.

Although Pauley did suffer previous back pain on three previous occasions, both Drs. Perry and Foster opined that his February 15, 2001 work-related accident caused the herniated disc based on the fact that he suffered no leg pain as a result of those prior incidents. While Dr. Foster did think that Pauley suffered from a preexisting low back problem, he felt that the lifting incident precipitated the 1 ^herniated disc and the right lower extremity pain. He stated that the reason he recommended surgery was because of the radi-cular leg pain, not just the lower back pain. None of the previous medical records reveal that Pauley suffered any leg pain when he was treated for lower back pain.

Additionally, Dr. Eulogio Tan, the emergency room doctor at Moss Regional on January 22, 2001, stated that Pauley exhibited tenderness at L4-5, but no neurological deficit. He further testified that he did not remember Pauley being in severe pain at the time of his examination. A back x-ray revealed no acute compression fracture and a narrowing of the L5-S1 interverte-bral space. Dr. Tan stated that his impression was that Pauley was suffering from a lumbar sprain.

Moreover, both Brumit and Pauley’s ex-girlfriend, Rosalena Nafe, testified that he did not suffer a back injury as a result of the January 19, 2001 automobile accident. Brumit stated that he only complained of soreness and that he did not miss any work as a result of the accident. She and Pauley both testified that they unloaded his truck after he reached Brumit’s home, which was loaded with his chest of drawers, weight bench, weights, and clothes. Wal-Mart’s records reveal that Pauley did not miss any work on January 20, 2001.

Considering the aforementioned evidence, we cannot say that the workers’ compensation judge erred in finding that Pauley proved by a preponderance of the evidence that he suffered a work-related injury. Finding no manifest error, her judgment is affirmed on this issue.

EMPLOYMENT STATUS

In its final assignment of error, Wal-Mart argues that the workers’ | ^compensation judge erred in finding that Pauley was entitled to workers’ compensation benefits as a full-time employee, rather than as a part-time employee.

Louisiana Revised Statute 23:1021(9) defines a part-time employee as “an employee who as a condition of his hiring knowingly accepts employment that (a) customarily provides for less than forty hours per week, and (b) that is classified by the employer as a part-time position.” La.R.S. 23:1021(10)(a) provides in part:

(10) ‘Wages” means average weekly wage at the time of the accident. The average weekly wage shall be determined as follows:
(a) Hourly wages.
(i) If the employee is paid on an hourly basis and the employee is employed for forty hours or more, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater; or
(ii) If the employee is paid on an hourly basis and the employee was offered employment for forty hours or more but regularly, and at his own discretion, works less than forty hours per week for whatever reason, then, the average of his total earnings per week for the four full weeks preceding the date of the accident; or
(iii) If the employee is paid on an hourly basis and the employee is a part-time employee, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the injury.

However, La.R.S. 28:1021(10) “does not define full-time employment as requiring the employer to guarantee a forty-hour work week.” East-Garrett v. Greyhound Bus Lines, 99 421, p. 4 (La.App. 8 Cir. 11/3/99), 746 So.2d 715, 719.

Pauley testified that he worked a set schedule Tuesday through Saturday, 10:00 p.m. to 7:00 a.m. The workers’ compensation Telereporting Call-In Sheet lists him as a full-time employee. His 1998 employment application indicates that he was | ^seeking “peak time” employment, which Wal-Mart defines as employment of less than twenty-eight hours per week. A form filled out by Pauley on February 22, 2000, indicates that he was not requesting a status change from part-time to full-time. However, there is a mark next to, “If YES, Part Time to Full time (over 28 hours).” Handwriting above this mark states, “Can’nt (sic) work Sun. + Mon. Can come on full time.” Pauley testified that he transferred from a Lake Charles store to the DeRidder store at some point prior to his accident. Employment records from that store indicate that he worked in excess of twenty-eight hours per week from December 30, 2000 through January 19, 2001, and from January 27, 2001 through February 9, 2001.

Wal-Mart bases its argument that Pau-ley was not a full-time employee on the fact that he admitted that it had reduced his hours at the time of his work-related accident to twenty-five to thirty-two hours per week. Thus, it argues that he was no longer a full-time employee at the time of his accident, rather, he was a part time employee.

The workers’ compensation judge held that Pauley was entitled to workers’ compensation benefits as a full-time employee. The record contains conflicting evidence on this issue. Although Pauley may have begun his employment with Wal-Mart on a part-time basis, there is evidence to suggest that he was a full-time employee at the time of his accident. Since there is conflicting evidence on this issue, we cannot say that the finding of the workers’ compensation judge is manifestly erroneous. Accordingly, this assignment of error is dismissed as being without merit.

11 ..ANSWER ON APPEAL

Pauley answered Wal-Mart’s appeal arguing that the workers’ compensation judge erred in finding that he was not entitled to penalties and attorney’s fees for payment of the wrong indemnity rate, for its refusal to authorize the surgery recommended by Dr. Perry, and its failure to pay a medical bill. The workers’ compensation judge denied Pauley’s claim for penalties and attorney’s fees finding that Wal-Mart reasonably controverted this claim. The decision to award penalties and attorney’s fees is a question of fact which will not be reversed on appeal absent manifest error. Warren v. Maddox Hauling, 02-733 (La.App. 3 Cir. 12/4/02), 832 So.2d 1082. Wal-Mart’s reason for refusing to authorize the surgery and denying payment of the medical bill was the alleged fraud committed by Pauley. We find this reason to be valid; accordingly, the workers’ compensation judge’s finding that Wal-Mart reasonably controverted this claim is affirmed.

However, we do find manifest error with regard to its failure to pay the correct indemnity rate to Pauley from the date it commenced payment of benefits through August 13, 2001. Pauley received $123.90 per week in compensation benefits rather than $173.34 per week. In its brief, Wal-Mart states that Pauley “admitted that he knew that [it] was cutting back on hours because the store’s payroll was too high.” This is not a valid reason for failing to pay him at the correct rate. Pauley had no control over the number of hours Wal-Mart gave him each week, rather, this rested entirely within its control. Therefore, we find that the workers’ compensation judge erred in failing to award him penalties and attorney’s fees for Wal-Mart’s miscalculation of his workers’ compensation benefits. La.R.S. 23:1201. 11(iAccordingly, we award Pauley $2,000 in penalties and $5,000 in attorney’s fees.

The judgment of the workers’ compensation judge is amended to award Pauley penalties and attorney’s fees for Wal-Mart’s miscalculation of his weekly workers’ compensation benefits. The judgment is affirmed with regard to the two remaining issues. Pauley also seeks additional attorney’s fees for work performed on appeal. Considering our findings, we award him an additional $5,000 in attorney’s fees for work performed by his attorney on appeal.

CONCLUSION

For the foregoing reasons, the judgment of the workers’ compensation judge is amended to award Pauley $2,000 in penalties and $5,000 in attorney’s fees for Wal-Mart’s miscalculation of his weekly indemnity rate. The judgment is affirmed in all other respects. We further award Pauley an additional $5,000 in attorney’s fees for work performed on appeal. The costs of this matter are assessed to the defendant-appellant, Wal-Mart Stores, Inc.

AFFIRMED AS AMENDED.