author: I «GUIDRY, J.

text:
    Stephanie LANOUE v. ALL STAR CHEVROLET.
    No. 2003 CA 0012.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 7, 2003.

      Vijay Venkataraman, Baton Rouge, Counsel for Plaintiff-Appellant Stephanie Lanoue.
    Robert D. Hoover, Matthew W. Tierney, Baton Rouge, Counsel for Defendant-Ap-pellee All Star Chevrolet, Inc.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   I «GUIDRY, J.

A claimant appeals a judgment of the Office of Workers’ Compensation Administration (OWC) denying her benefits for failure to prove that she sustained a' work-felated injury. After careful consideration of the facts and the governing law, we reverse, render in part and remand in part with instructions.

FACTS AND PROCEDURAL HISTORY

The claimant, Stephanie Lanoue, filed a disputed claim for compensation against her employer, All Star Chevrolet, Inc., for failing to pay her workers’ compensation benefits relative to an injury she sustained on January 17, 2002. The claimant was employed as a new car salesperson. In her petition, the claimant described her injury as stemming from the collision of a company-owned golf cart with a plate glass window while she was holding onto the golf cart. As a result of the collision, the claimant sustained lacerations and a fracture to her left arm.

All Star Chevrolet denied liability for the claimant’s injury. In its answer, All Star Chevrolet averred, “that the accident and injury occurred as a result of a purely personal favor which the claimant was doing for another sales representative while babysitting her children.” Following a hearing, the workers’ compensation judge (WCJ) rendered judgment in favor of All Star Chevrolet, dismissing the claimant’s disputed claim with prejudice. It is from this judgment that the claimant appeals.

APPLICABLE LAW

In order to recover workers’ compensation benefits, the claimant must establish that she received a personal injury by accident arising out of and in the course of her employment. La. R.S. 23:1031(A). The terms “arising out of’ and “in the course of’ constitute a dual requirement. Guillory v. Interstate Gas Station, 94-1767, p. 3 (La.3/30/95), 653 So.2d 1152, 1154.

When considering the “arising out of’ employment requirement, the court inquires into the character or origin of the risk suffered by the employee and ^determines whether this risk was incidental to the employment. Pitts v. Helmrich & Payne Drilling, 98-1345, p. 4 (La.App. 1st Cir.6/25/99), 739 So.2d 335, 337, writ denied, 99-2194 (La.11/5/99), 750 So.2d 187. An accident arises out of employment if the conditions or obligations of the employment caused the employee in the course of employment to be at the place of the accident at the time the accident occurred. Clement v. Dynasty Transportation, 98-2377, p. ' 5 (La.App. 1st Cir.12/28/99), 756 So.2d 377, 381. An accident also arises out of employment if the risk for which the injury resulted was greater for the employee than for a person not engaged in the employment. Lewis v. Houma Industries, 01-0641, pp. 3-4 (La. App. 1st Cir.5/10/02), 818 So.2d 956’, 958.

An accident occurs in the course of employment when the employee sustains an injury while actively engaged in the performance of his duties during work hours, either on the employer’s premises or at other places where employment activities take the employee. McLin v. Industrial Specialty Contractors, Inc., 02-1539, p. 4 (La.7/2/03), 851 So.2d 1135, 1140. A WCJ’s determination regarding the arising out of and in the course of employment inquiries is subject to the manifest error standard of review. Lewis, 01-0641 at 4, 818 So.2d at 958.

DISCUSSION

At issue in this appeal is whether the claimant’s conduct, at the time of her accident, can be construed as “arising out of and in the course of’ her employment, thereby justifying recovery of workers’ compensation benefits. The claimant argues that at the time of the accident, she had driven All Star Chevrolet’s golf cart to the dealership showroom in response to a page from the receptionist notifying her that she had a phone call. She admitted at the hearing that she did not know if the page was for a personal or business phone call. At the hearing, the claimant testified that she was “returning to the showroom to park the golf cart in the front of the showroom so [she] could go in and answer the phone.” When she arrived at the showroom, she engaged the lock on the golf cart, got out of the vehicle, and 14then took her co-worker’s son out of the golf cart. As she was reaching to take her coworker’s daughter out of the golf cart, the little girl accidentally stepped on the accelerator, which caused the vehicle to lurch forward. The claimant was injured because she was grasping the frame of the golf cart when it collided with the plate glass window of the showroom. The claimant testified that she was driving her co-worker’s children in the golf cart so that her co-worker could focus attention on a customer.

In Walker v. Acadian Builders of Gonzales, Inc., 99-0297 (La.App. 1st Cir.5/19/00), 797 So.2d 690, this court reversed a summary judgment in favor of the employer finding that the decedent-employee’s death was not work-related. In that case, this court noted:

an employee is not relegated to twiddling his thumbs for the entire time that he is on stand-by. As long as the act is not entirely unreasonable and could be expected of an ordinary human being, the employee is not outside of the scope of his work. Moreover, accidents that occur during periods of rest and relaxation are normally regarded as transpiring in the course of the employment. Personal activities such as: getting fresh air, smoking, resting, eating food or a snack, drinking, including water, .beer or wine, taking a bath .provided by the employer, using a telephone or a toilet, stair or elevator, and washing work clothes, have been classified as in the course of employment.

Walker, 99-0297 At 4-5, 797 So.2d at 693 (citations omitted).

In reviewing the “arising out of’ requirement, the evidence in the record indicates that the reason the claimant was at the place of the accident at the time the accident occurred was because she had been paged by the dealership receptionist to receive a phone call. We place no importance on the fact that it is not known whether the phone call was business-related or not. See Walker, 99-0297 at 4, 797 So.2d at 693. What is clear is that the claimant would not have been at the place of the accident, i.e., in front of the dealership showroom, had the receptionist not paged her to receive a phone call. The WCJ clearly erred in failing to find that the claimant’s employment, as demonstrated by her responding to the page from the dealership receptionist, did not obligate her to be at the place of the | ^accident at the time the accident occurred, thus causing the subject accident to “arise” out of her employment.

Likewise, we find that the WCJ manifestly erred in failing to find that the claimant’s accident occurred in the course of her employment with All Star Chevrolet. On questioning by the WCJ, the claimant stated that her primary job duty was to “sell new cars to customers.” She admitted that had a customer needed her attention, she would have taken the children back to their parents so that she could attend to the customer. She also acknowledged, on cross examination, that she could have returned customer phone calls or made “cold” sales calls to customers to see if they were interested in purchasing a new car.

Instead, the claimant stated that because she was not presently occupied with a customer, she offered to keep her coworker’s children and transport them on the golf cart with her as she traversed the car lot looking for customers. Even while she had the children with her in the golf cart, claimant transported the internet sales manager around the car lot, at his request, to look for a specified vehicle. She also immediately sought to report to the dealership showroom when the receptionist paged her.

Thus, the evidence shows that the claimant was at least partially, 'actively engaged in the performance of her work duties at the time the accident occurred. Cfi McLin, 02-1539 at 9-10, 851 So.2d at 1143 (wherein the court stated “[w]e can find no support for the proposition that, because an employee happens to travel along his usual route while returning home from a special mission, the employee ceases to be protected under the [special mission] exception.”) Furthermore, the accident at issue took place on the premises of All Star Chevrolet during the claimant’s regular work hours. Being mindful of these facts and circumstances in | slight of the jurisprudential tenet “that worker’s compensation law is to be liberally construed in favor of coverage,” Tynes v. Gaylord Container Corporation, 02-0519, p. 6 (La.App. 1st Cir.2/14/03), 844 So.2d 80, 86, writ denied, 03-0769 (La.5/9/03), 843 So.2d 404, we find that the subject accident did occur in the course of the claimant’s employment and thus the claimant is entitled to benefits under the Workers’ Compensation Act.

Accordingly, because we hold that the WCJ clearly erred in failing to find that the claimant’s injury was work-related, we will decide the issues in the appeal before us de novo. See Joseph v. J.E. Merit Constructors, Inc., 01-1666, p. 7 (La.App. 1st Cir.6/21/02), 822 So.2d 72, 77, writ denied, 02-2295 (La.4/4/03), 840 So.2d 1201.

In an amendment to her disputed claim form, the claimant requested benefits for permanent partial disability pursuant to La. R.S. 23:1221(4) et seq. That statute states, in.pertinent part:

(4) Permanent partial disability. In the following cases, compensation shall be solely for anatomical loss of use or amputation and shall be as follows:
* * *
(f) For the loss of an arm, sixty-six and two-thirds percent of ivages during two hundred weeks.
* * *
(o) In all cases involving a permanent partial anatomical loss of use or amputation of the members mentioned herein-above, compensation shall bear such proportion to the number of weeks provided for herein for the total loss of such members as the percentage loss or impairment to such members bears to the total loss of the member, provided that in no case shall compensation for an injury to a member exceed the compensation payable for the loss of such member.
(q) No benefits shall be awarded or payable in this Paragraph unless the percentage of the anatomical loss of use or amputation, as provided in Subpara-graphs (a) through (o) of this Paragraph or the percentage of the loss of physical function as provided in Subparagraph (p) or (s) of this Paragraph is as established in the most recent edition of the American Medical Association’s “Guides to the Evaluation of Permanent Impairment”. (Emphasis added).

17The claimant’s treating physician, Dr. Joe A. Morgan, an orthopedist, opined that the claimant had a five-percent, permanent physical impairment to the left upper extremity from a fracture at her left elbow joint. However, in rendering this opinion, he acknowledged that the anatomical rating came from his “orthopedic surgeon’s manual.” Louisiana Revised Statutes 23:1221(4)(q) specifically requires that the percentage of anatomical loss of use as provided in subparagraph (o) must be “as established in the most recent edition of the American Medical Association’s “Guides to the Evaluation of Permanent Impairment” ” in order for benefits to be awarded under La. R.S. 23:1221(4). Since Dr. Morgan indicated that his rating was based simply on his orthopedic surgeon’s manual, benefits for permanent partial disability cannot be awarded on the basis of this evidence. We will, therefore, remand this matter to the OWC for the taking of additional evidence as to the extent of the claimant’s anatomical loss of use under the American Medical Association’s “Guides to the Evaluation of Permanent Impairment.” Thereafter, the WCJ should determine whether the claimant is entitled to permanent partial disability benefits under La. R.S. 23:1221(4). See Durbin v. State Farm Fire and Casualty Company, 558 So.2d 1257, 1261 (La.App. 1st Cir.1990).

We further find that the claimant is not entitled to any further disability benefits based on the following facts. Benefits for temporary total disability can only be awarded if a claimant proves by clear and convincing evidence that she is physically unable to engage in any employment. La. R.S. 23:1221(l)(c); Gordon v. Sandersons Farms, 96-1587, p. 8 (La.App. 1st Cir.5/9/97), 693 So.2d 1279, 1285. Dr. Morgan testified by deposition that he did not find the claimant to be disabled from working as a result of her injury. He stated that according to his medical notes, on her first few visits, he had documented that the claimant could |scontinue to work, but later when he learned she had stopped working, he simply noted that she had stopped working. Finally, on March 19, 2002, Dr. Morgan stated that he had made a note to release the claimant to return to work in a month.

When questioned regarding the three work releases that excused the claimant from returning to work from February 5, 2002 to April 16, 2002, Dr. Morgan identified the work releases as being issued by his office, specifically his nurse, and stated “[t]hey sometimes exceed their authority and — though, I don’t know exactly what to tell you, but I never had it in here [his medical notes] to excuse her from work, but I did have in there on 03/19 a note to release her to return to work.”

At the hearing, the claimant acknowledged that immediately following the accident she worked from January 17, 2002 until February 6, 2002, with the exception of January 19, 2002. Thereafter, the claimant stated that she requested and received work releases from Dr. Morgan’s office. She testified that the reason she could not work from February 6, 2002 to April 16, 2002, was because of the medication she had been prescribed and because physical therapy visits of one-hour duration three times a week caused the pain in her left arm to increase.

In his deposition, Dr. Morgan testified as follows regarding the claimant’s level of pain and the medications prescribed to her:

But her level of pain began to diminish after the visit of 02/05/02. I called in a lesser strength of pain medicine for her on 02/18/02. And then on 02/22/02,1 called in an even lesser strength dose, which was Darvocet. And then the last medicine I gave her was — I didn’t actually give it to her, she was taking over-the-counter. She was taking Ibuprofen and she was taking Darvocet on 03/19/02 for that. That was not a new prescription. That was part of the old prescription that I had given her.

Thus, considering the evidence in the record before us, we find that the claimant failed to establish, by clear and convincing evidence, that she was entitled to further disability benefits.

The claimant also seeks to recover workers’ compensation medical benefits. Louisiana Revised Statutes 23:1203(A) provides that “the employer shall furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of this state as legal. ...” At the hearing, the following medical expenses, paid by the claimant or her private health insurer, were established: Bone & Joint Clinic — $566.00; Affiliated Therapy Services — $894.43; North Oaks Health System — $2,039.25; Walgreen’s — $120.73. The claimant testified at the hearing that All Star Chevrolet did not pay any portion of the aforementioned medical expenses. All Star Chevrolet did not present any evidence proving that it had paid any of the medical expenses proven by the claimant. Furthermore, the claimant asserted at the hearing that she paid the premiums for her private health insurance, which she obtained through her retirement from CNA Insurance. Thus, we find that All Star Chevrolet is liable for all of the medical expenses proven by the plaintiff. See Parkes v. Prien Pines Nursery, 98-384, p. 8 (La.App. 3rd Cir.11/4/98), 722 So.2d 36, 43, writ denied, 98-2993 (La.1/29/99), 736 So.2d 837.

As for the claimant’s request for penalties and attorney fees pursuant to La. R.S. 23:1201(F), we find that the imposition of the same is not warranted under the facts of this case, because the claimant’s request for workers’ compensation benefits was reasonably controverted by All Star Chevrolet. An employer should not be liable for penalties or attorney fees for taking a close factual or legal question to court for resolution. Lummus v. Shoney’s of LaPlace, 97-1140, p. 6 (La.App. 5th Cir.6/30/98), 713 So.2d 1290, 1293, writ denied, 98-2059 (La.11/6/98), 728 So.2d 394; see also La. R.S. 23:1201(F)(2).

CONCLUSION

Having found that the claimant sustained a personal injury arising out of and in the course of her employment with All Star Chevrolet, we reverse the judgment of the WCJ dismissing the claimant’s disputed claim for workers’ compensation | ^benefits. We hereby render judgment in favor of the claimant for medical expenses incurred in the amount of $3,620.41, bearing legal interest from the date compensation was due until the date of satisfaction. Finally, we remand this matter to the OWC for the specific purpose of determining if the claimant is entitled to permanent partial disability benefits under La. R.S. 23:1221(4). All costs of this appeal are assessed to the employer, All Star Chevrolet.

REVERSED, RENDERED IN PART AND REMANDED IN PART WITH INSTRUCTIONS.

      . The claimant testified at the hearing that her co-worker's husband had brought the children to the dealership along with another gentleman and that she sought permission from either the co-worker or the co-worker's husband to take the children with her. She also stated that the co-worker's husband was not an employee of the dealership.

      . Although the claimant only claimed benefits pursuant to La. R.S. 23:1221(4) in her amended complaint, in her original complaint she simply noted that no wage benefits had been paid. All Star Chevrolet, in its pre-trial statement, indicated that among the issues to be litigated was whether the claimant was entitled to any temporary total or permanent partial disability benefits. Thus, we address claimant’s entitlement under both provisions.


source: Caselaw Access Project

author: I .WHIPPLE, J.

license: Public Domain

text:
    William Reese BROWN v. DEAL’S CARPET CARE.
    No. 2003 CA 0196.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 7, 2003.
    Writ Denied Feb. 13, 2004.

      William Brown, Baton Rouge, Plaintiff/Appellee, In Proper Person.
    Matthew Tierney, Baton Rouge, for Defendant/Appellant, Deal’s Carpet Care.
    Before: WHIPPLE, KUHN and McDonald, jj.
   I .WHIPPLE, J.

Defendant, Deal’s Carpet Care, appeals from a judgment of the Office of Workers’ Compensation in favor of William Brown, awarding him medical expenses incurred as a result of a detached retina. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On October 10, 2000, William Brown, who was employed by Deal’s Carpet Care as a carpet technician, was performing a “pet treatment” in an apartment unit. To accomplish this task, Brown was using a two-gallon pump sprayer containing Clorox, citric cleaner and water. As Brown was pumping the sprayer to pressurize the contents, the seal around the cap of the spray container failed, causing the contents of the sprayer to shoot upward through the cap, striking him in the face and eyes.

Immediately after the accident, Brown began experiencing burning in his eyes and, thus, flushed his face and eyes with water. Brown then radioed for assistance, and, shortly thereafter, Chip Deal, Brown’s supervisor, arrived at the apartment complex and assisted him in completing the job. Brown then reported back to the office to continue cleaning himself up. At the office, he related what had occurred to Mr. Deal, and Mr. Deal then told him to take the afternoon off.

For a period of a few days to a week following the accident, Brown continued to have a burning sensation in his eyes. He also noted some fuzziness in his vision. Brown assumed that these symptoms were caused by residual chemicals on his contact lenses, and, thus, he repeatedly cleaned his contacts in an attempt to clear up these problems. By December, Brown began to notice that he could not see his nose out of his right eye and instead could only see a black area. Again, Brown believed this was a contact-|relateds problem. However, he did not purchase a new pair of contacts or see an eye doctor at that time for financial reasons.

By January of 2001, the area to the left side of Brown’s right eye where he was experiencing loss of peripheral vision had widened, and Brown was also starting to have problems with depth perception and reduced vision in low light. Thus, when Brown subsequently lost his right contact lens in early February 2001, he made an appointment with Dr. Lawrence Aderhold, an optometrist, to obtain new contacts and also to determine the cause of the problems he was experiencing with his vision.

When Dr. Aderhold examined Brown on February 6, 2001, he diagnosed Brown as suffering from a detached retina of the right eye. The following day, Brown was examined by Dr. John Couvillion, an ophthalmologist, who recommended surgery to repair the retinal detachment. According to Brown, he contacted both Mr. and Mrs. Deal of Deal’s Carpet Care in an attempt to have the surgery approved; however, they both hung up on him and would not give him any information about the company’s insurance carrier.

Thereafter, on February 12, 2001, Brown underwent a double surgical procedure that combined a sceleral buckle and vitrectomy to repair the retinal detachment, which was performed at Tulane Medical Center by Dr. Douglas Babel, an ophthalmologist. In July 2001, Brown developed a second retinal detachment because of scar tissue that had developed during recovery from surgery. Thus, on July 18, 2001, he underwent a second surgical procedure to correct the detachment.

^Subsequent to the second surgery, Brown filed a disputed claim for compensation, seeking reimbursement of the medical expenses he had incurred as a result of the retinal detachment. Following a hearing, the workers’ compensation judge found as a fact that Brown had a preexisting degenerative condition of the eye that was asymptomatic before the accident, but that became symptomatic shortly after the accident. Thus, the workers’ compensation judge concluded that, pursuant to Peveto v. WHC Contractors, 93-1402, p. 2 (La.1/14/94), 630 So.2d 689, 691, Brown was entitled to a legal presumption that the retinal detachment was causally related to the work accident.

With regard to the employer’s burden of overcoming the presumption, the workers’ compensation judge described the burden as “very difficult” and “phenomenal” and stated that it was a “very heightened burden of proof.” The workers’ compensation judge further interpreted Peveto as holding that the burden placed on the employer required the employer to establish that there was “absolutely no correlation” between the accident and the employee’s condition or that such a causal connection was “impossible.” The workers’ compensation judge thus concluded that if there.were “even a remote possibility” of causation, the employer would not be able to overcome the presumption of causation. She additionally stated as follows: “So, I mean, I have to tell you, I think that unless the medical field is completely just adamant that it’s impossible to have any connection, I’m stuck with that jurisprudence [Peveto ] unless the Supreme Court can enlighten me better on it.”

Thus, the workers’ compensation judge concluded that, given the opinion of Brown’s treating physician, there was a “reasonably good possibility” of causation, Deal’s Carpet Care was unable to overcome the | spresumption of causation. Accordingly, she rendered judgment in favor of Brown, awarding him medical expenses related to the retinal tear.

From this judgment, Deal’s Carpet Care appeals, contending that the workers’ compensation judge:

(1) Committed legal error by applying an incorrect burden of proof against the employer;
(2) erred in finding that Brown had a compensable work injury;
(3) erred in finding that Brown’s preexisting condition was aggravated and/or exacerbated by his work-related accident;
(4) erred in finding that Brown was entitled to workers’ compensation medical benefits;
(5) erred in finding that Deal’s Carpet Care failed to sufficiently rebut the presumption of causation;
(6) erred in finding that Brown’s July 2001 surgery was related to the work accident; and
(7) erred in assessing costs of the July 2001 surgery against Deal’s Carpet Care.

CAUSATION

(Assignments of Error Nos. 1-5)

In these assignments of error, Deal’s Carpet Care contends that the workers’ compensation judge erred as a matter of law by applying a heightened burden of proof with regard to the employer’s burden in overcoming the presumption of causation. Additionally, Deal’s contends that Brown failed to meet his burden of proof with regard to compensability or, alternatively, that Deal’s successfully rebutted any presumption of causation.

hAn employee in a workers’ compensation action has the burden of establishing a causal link between the accident and the subsequent disabling condition. Walton v. Normandy Village Homes Association, Inc., 475 So.2d 320, 324 (La.1985). Where the employee suffered from a preexisting medical condition, he may still prevail if he proves that the accident aggravated, accelerated or combined with the condition - or infirmity to produce death or the disability for which compensation is claimed. Peveto, 93-1402 at p. 2, 630 So.2d at 691. Moreover, in a case involving a pre-existing condition, the employee is aided by a presumption regarding causation. Specifically, where an employee proves that before the accident he had not manifested disabling symptoms, but that commencing with the accident disabling symptoms appeared and manifested themselves thereafter, and that the medical or circumstantial evidence indicates a “reasonable possibility” of a causal connection between the accident and the activation of the disabling condition, the employee’s work condition is presumed to have aggravated, accelerated or combined with his pre-existing disease or infirmity to produce his disability. Peveto, 93-1402 at p. 2, 630 So.2d at 691; Walton, 475 So.2d at 324-325.

With regard to the existence of a pre-existing condition, the medical evidence established that prior to the accident in question, Brown had two conditions of the eye that predisposed him to development of retinal detachment, high myopia and lattice degeneration. High myopia is a condition where an individual’s eyeball is larger than the average eyeball, which causes the retina to be stretched. Lattice degeneration is a condition of the peripheral retina that can lead to holes or tears in the retina, which, in turn, can cause retinal detachment.

17Regarding manifestation of symptoms after the accident, Brown testified that immediately following the accident, he experienced burning in his eyes, which continued for several days to one week. He further related that after the accident, he continued to have problems with his right eye, including fuzziness and loss of peripheral vision, although he attributed these problems to his contacts. Additionally, Brown testified that these problems got progressively worse after the accident until he saw Dr. Aderhold in February of 2001. Brown’s testimony regarding the development of symptoms following the accident was unrebutted and was clearly accepted as credible by the workers’ compensation judge.

Thus, to be entitled to the presumption of causation, Brown had to establish, through medical or circumstantial evidence, that there was a “reasonable possibility” of a causal connection between the accident and the activation of the disabling condition. In this regard, Brown offered the testimony of Dr. Lawrence Aderhold and the written report of Dr. Douglas Babel. Dr. Aderhold, an optometrist, was asked whether being hit in the eye by high pressure spray would generate enough force to cause a retinal tear in the eye of someone who was predisposed to such tears due to myopia and lattice degeneration, and Dr. Aderhold responded, “[i]t’s a possibility.”

Additionally, Dr. Babel, the ophthalmologist who surgically repaired Brown’s retinal detachment, stated in his report that there was “a reasonably good possibility that a retinal tear could have developed at [the time of the accident], which would, of course, have led to the retinal detachment,” and further stated, “I think the degree of probability is reasonably high that this is the scenario.”

Based on this evidence, the workers’ compensation judge determined that Brown was entitled to a presumption that the retinal detachment and |sassociated medical treatment were causally related to the work accident, and we find no manifest error with this finding.

With regard to the workers’ compensation judge’s finding that Deal’s had failed to successfully rebut the presumption of cause, we agree that the workers’ compensation judge misinterpreted the burden placed upon an employer to rebut the presumption of causation. Once the employee has established the presumption of causation, the opposing party bears the burden of pi-oducing evidence and persuading the trier of fact that it is more probable than not that the work injury did not accelerate, aggravate or combine with the pre-existing condition to produce the employee’s disability. Peveto, 93-1402 at pp. 2-3, 630 So.2d at 691. Moreover, while the Louisiana Supreme Court in Walton characterized the employer’s burden as “heavy,” it specifically held that the burden placed upon the employer to rebut the presumption of causation is to prove by a preponderance of the evidence the absence of any correlation between the work injury and the employee’s disability. Walton, 475 So.2d at 328.

Accordingly, to the extent that the workers’ compensation judge held Deal’s Carpet Care to a higher standard by requiring it to rebut the presumption by establishing “absolutely no correlation” between the accident and the employee’s disability or that such a causal connection was “impossible,” the workers’ compensation judge committed legal error. Nonetheless, based on our independent review of the evidence of record, see Tanner v. International Maintenance Corporation, 602 So.2d 1133, 1137-1138 (La.App. 1st Cir.1992), we find that the error was harmless in that the result reached was correct.

In an attempt to rebut the presumption of causation, Deal’s Carpet Care relied upon the testimony of Doctors John Cou-villion and Russell | flSaloom and the medical report of Dr. James Hoth. On the one occasion that Dr. Couvillion, an ophthalmologist who specializes in vitreal retinal surgery, examined Brown, Brown related to him that he had developed decreased vision since an injury to his eye where bleach had gotten into his eye from a pump sprayer. Dr. Couvillion testified that the retinal examination revealed “an obvious large and longstanding retinal detachment of the right eye involving the macula.” With regard to causation, Dr. Couvillion stated, “Whether or not this came from that injury I have no idea.” When asked specifically whether, given Brown’s history as well as his examination of Brown, he believed it was more likely than not that the work accident caused the retinal detachment, Dr. Couvillion responded, “You know, because of the four-month business it’s sort of a gray area.” He noted that if .the accident had occurred only two to three months before his examination of Brown,, he would have opined that there was “[n]o way” that it was related to the accident. However, given that the accident had occurred four months prior to his examination of Brown, Dr. Couvillion recognized that the longstanding detachment could have been caused by the accident.

Defense counsel then asked Dr. Couvil-lion to assume that the pump sprayer involved was not a high-pressure sprayer, but rather a hand pump sprayer someone would use in their garden and that it was no more “powerful than a Super Soaker [water gun].” Dr. Couvillion opined that he would “doubt” that this would have generated sufficient force to cause the retinal detachment. Relying on this testimony, Deal’s Carpet Care contends the presumption of causation was rebutted. We disagree.

Clearly, the assumption that Dr. Couvil-lion was asked to make in the hypothetical is not accurately supported by the only testimony of record regarding the actual mechanics of the accident. The force or power of the |10sprayer mechanism itself seems to be of little relevance inasmuch as there was no testimony that a controlled spray from the nozzle of the sprayer caused the accident. Rather, the record shows that the accident was caused by the failure of the seal around the hand pump, which caused the pressurized contents of the sprayer to shoot upward in an uncontrolled fashion. Moreover, we note that Dr. Couvillion offered the opinion that the work accident did not cause Brown’s retinal detachment only after being asked to make this assumption about the nature of the sprayer. Thus, Dr. Couvillion’s opinion that he would “doubt” that the retinal detachment was caused by a sprayer with the power of a “Super Soaker” is not dis-positive, given the facts established at trial.

Dr. Saloom, an ophthalmologist, also examined Brown only once, at the request of the employer. This examination occurred on June 12, 2002, after both surgical procedures had been performed to correct the retinal detachment. Although he did not actually view the detached retina, which had previously been repaired, Dr. Saloom nonetheless offered an opinion as to causation. In his testimony, Dr. Saloom framed the issue as whether the force from the spray pump could have caused trauma to the eye that could then lead to retinal detachment. Dr. Saloom admitted that he had not seen the particular pump that was used, but contended he used the same type of pump around his house. He then stated, “I would say, based upon this, it is very highly unlikely but not beyond all realms of possibility that the spray [npump caused the retinal detachment.” When further asked whether it was his opinion that the retinal detachment was independent of the work-related accident, Dr. Saloom responded, “I think unless it can be proved that the hose was directed at the eye and that there was significant pressure come from the hose or whatever, ... [it] is not related.” (Emphasis added). However, it is clear from this testimony that Dr. Sa-loom was under the mistaken impression that the spray that struck Brown in the face and eyes came from the hose, rather than the pressurized contents of the container, after release due to a malfunction of the seal on the container. As stated above, this assumption is not borne out by the evidence presented at trial.

Dr. Saloom also based his opinion that the retinal detachment was not caused by the work accident on the fact that Brown did not seek treatment until four months after the accident. Although he opined that the pressure of a hand pump sprayer “possibly could” have produced enough force to cause blunt trauma if directed towards the eye and that a “temporal relationship” could have existed between the accident and the resulting retinal detachment, Dr. Saloom felt that such an injury would have been significant enough to cause the “average person” to seek medical attention sooner than what Brown did.

However, when asked if his opinion was that the pump sprayer incident did not cause the retinal detachment, Dr. Saloom qualified his statements, as follows:

I cannot tell you if the pump sprayer caused it or not. All I can testify to is that after the accident there was no other records of any other medical attention being sought for an injury until four months later, and the type of injury that I would expect from a hand pump sprayer is minimal, but if somebody said an injury would have occurred, then I would think that the trauma that would be needed to cause a retinal detachment would have brought somebody in the office because it would not — the trauma alone would not have just caused the h ¿retinal detachment. It probably would have caused a traumatic iritis, maybe a traumatic hyphemia, which is blood bleeding in the eye, along with a lot of chemical injury to the eye. (Emphasis added).

Also, although Dr. Saloom placed great weight on the fact that Brown did not seek medical attention for four months, -he acknowledged that it was “absolutely possible” for a person with this type of injury not to seek medical attention. With- regard to his failure to seek medical care sooner, Brown testified that while he experienced pain and vision problems after the accident, he considered himself as one having a high tolerance for pain. Additionally, he stated that he did not seek medical care sooner due to financial constraints.

Finally, Deal’s Carpet Care relied upon the report of Dr. James Hoth, an ophthalmologist who examined Brown on July 26, 2002 solely for purposes of rendering an opinion. In his report, Dr. Hoth concluded that the retinal detachment was present before the accident, because “all parties agree that this man has a Very chronic retinal detachment.... Because of the chronic nature of his retinal detachment, there is no way it could have appeared that quickly after the accident.” With regard to whether the accident contributed to the progression of the retinal detachment, Dr. Hoth stated that the answer to this question was “less clear,” but he believed it had not. The reason he believed that the accident had not contributed to the progression of Brown’s condition was “because after reading the transcripts the amount of force involved was very minimal.” Dr. Hoth further noted that Brown had not sought any medical treatment after the accident, which also indicated to him that there was minimal trauma to the eye. He opined as follows: “The pressure sprayer appeared to be a very mild garden hose 1^variety so this was not a factor and the chemical getting in the eye was certainly not a factor as there was no medical attention sought.”

We note that Dr. Hoth did not examine Brown until after the retinal detachment had been surgically repaired. Thus,'his opinion as to the chronic nature of the retinal detachment is based upon his reading of other doctors’ opinions. The only two ophthalmologists who examined Brown’s eye prior to the surgical repair were' Drs. Couvillion and Babel. AÁTiile Dr. Couvillion noted a long-standing retinal detachment, he acknowledged that the detachment could have developed in the four months between the work accident and his examination of Brown. Moreover, Dr. Babel, the treating ophthalmologist who performed the surgery, also noted upon examining Brown that Brown had a chronic retinal detachment. Nonetheless, Dr. Babel concluded that the probability was “reasonably high” that the accident had caused a retinal tear, which in the intervening four months developed into the retinal detachment with which Brown eventually presented.

Thus, while Dr. Hoth believed the chronic nature of the retinal detachment (as discerned by him from reading medical records) established that the detachment had been present before the accident, this opinion that four months was not sufficient time for a chronic retinal detachment to develop was not shared by the two ophthalmologists who actually examined the injured eye prior to surgical correction.

Additionally, with regard to Dr. Hoth’s statement that the accident had not contributed to the progression of Brown’s condition because “the |14amount of force involved was very minimal” force from a “very mild garden hose variety” sprayer, we again note that there appears to be some misconception as to the actual mechanics of the accident. Clearly, Dr. Hoth did not know or understand that the spray resulted from an uncontrolled release of the pressurized contents of the sprayer due to a failure of the seal on the sprayer itself. Accordingly, given the lack of factual support for Dr. Hoth’s assumptions, we agree that Dr. Hoth’s opinions are not convincing.

Based on the foregoing, and considering the evidence presented as a whole, we conclude, based on our independent review of the record, that Deal’s Carpet Care failed to rebut the presumption that Brown’s retinal detachment was caused by the work accident. Deal’s had the burden of proving that the non-existence of the presumed fact, ie., that the work injury accelerated, aggravated or combined with Brown’s preexisting conditions to produce disability, was more probable than the existence of that presumed fact. See Walton, 475 So.2d at 329. However, the evidence relied upon by Deal’s failed to prove that it was more probable than not that the accident did not accelerate, aggravate or combine with Brown’s preexisting conditions to any extent to produce disability. Accordingly, while we agree that the workers’ compensation judge committed legal error in interpreting the burden placed upon an employer to rebut the presumption of causation, we, nonetheless, conclude that the result reached was correct. Thus, these assignments of error lack merit.

COSTS OF JULY 2001 SURGERY

(Assignments of Error Nos. 6 & 7)

In these assignments of error, Deal’s Carpet Care contends that the workers’ compensation judge was manifestly erroneous in concluding that Brown was entitled to reimbursement for the costs of the July 2001 retinal |1Bsurgery. Specifically, it contends that Brown failed to offer any evidence to establish that the subsequent surgery was also related to the October 10, 2000 work accident.

Louisiana Revised Statute 23:1203 requires the employer to furnish all necessary medical treatment to an employee injured in a work-related accident. To recover medical expenses under LSA-R.S. 23:1203, the employee must prove by a preponderance of the evidence that the expenses are reasonably necessary for treatment of a medical condition caused by the work injury. Taylor v. State, Department of Public Safety and Corrections, 2001-0348, p. 4 (La.App. 1st Cir.3/28/02), 814 So.2d 64, 66. Whether the employee is entitled to medical benefits is a factual question, the resolution of which may not be disturbed in the absence of manifest error. Taylor, 2001-0348 at p. 4, 814 So.2d at 66.

While Deal’s Carpet Care does not contend that Brown did not incur the expense of the July 2001 surgery, it contends that Brown offered no proof to relate the surgery to the work accident. We disagree.

The evidence of record demonstrates that Brown underwent the first surgical procedure to correct a retinal detachment of the right eye on February 12, 2001, and that his treating ophthalmologist related this injury to the work accident. Moreover, a mere five months later, in July of 2001, Brown underwent a second surgical procedure to again repair the right retina. Brown testified that the second surgery was necessitated due to the development of scar tissue resulting from the first surgery. Deal’s Carpet Care offered no evidence to contradict this testimony or to raise any reasonable suspicion that the surgery was unrelated to the accident.

Nonetheless, Deal’s contends that the absence of expert medical testimony stating that the surgery was necessitated by the work accident |ir,requires reversal of the workers’ compensation judge’s award. We disagree and reject Deal’s argument that the failure to call a doctor to specifically state that the work accident was the cause necessitating the additional surgery in July 2001 defeats his claim. Lack of testimony from a physician specifically stating that Brown’s July 2001 eye surgery was necessitated by the work accident is not determinative of whether the accident caused or ultimately resulted in the need for a second surgery. See Connor v. Jones Brothers Enterprises, 606 So.2d 996, 1001 (La.App. 1st Cir.1992), writ denied, 612 So.2d 62 (La.1993).

Causation is not necessarily and exclusively a medical conclusion. It is usually a fact to be found by the workers’ compensation judge, based on all credible evidence. Connor, 606 So.2d at 1001. The testimony of Brown, along with the medical report of his treating ophthalmologist, in the absence of any countervailing evidence, constituted sufficient evidence to establish the necessary causal connection between the work accident and both the February 2001 and the July 2001 surgeries. See Connor, 606 So.2d at 1001. Considering the record as a whole and the lack of evidence to cast suspicion on whether the second surgery was necessary for treatment of a medical condition caused by the work injury, we find no manifest error in the workers’ compensation judge’s finding that Brown was entitled to reimbursement for these expenses. See Connor, 606 So.2d at 1001; see also Collins v. Family Dollar Stores, Inc., 99-0622, pp. 10-11 (La.App. 1st Cir.5/12/00), 760 So.2d 1210, 1217, writs denied, 2000-2356, 2000-2363 (La.11/3/00), 773 So.2d 727. These assignments of error also lack merit.

|17CONCLUSION

For the above and foregoing reasons, the September 19, 2002 judgment awarding Brown medical benefits is affirmed. Costs of this' appeal are assessed against defendant, Deal’s Carpet Care.

AFFIRMED.

      . Brown still believed that these problems were contact-related and would be eliminated with a new pair of contact lenses.

      . We note that Brown was not present at Dr. Couvillion’s deposition. In fact, on July 22, 2002, the day before the scheduled deposition, Brown filed a motion opposing the taking of Dr. Couvillion’s deposition, noting that he had been given only three days notice of the deposition and would not be able to attend. However, the parties apparently agreed that defense counsel would ask Dr. Couvillion a list of questions submitted by Brown, and, accordingly, Brown withdrew his opposition to the deposition. Thus, Brown was not able to address any misconceptions Dr. Couvillion may have had regarding the nature of how the accident occurred.

      . In fact, Dr. Saloom, the employer’s expert who examined Brown on one occasion subsequent to the surgical repair of the. retina, testified that Drs. Babel and Couvillion's statements that the retinal detachment was chronic indicated to him that it had been present for four to six months prior to.the examinations. Such a time frame is clearly consistent with the chronic retinal detachment developing between the time of the accident in October of 2000 and the examinations by Drs. Babel and Couvillion in February of 2001.


author: J^PETTIGREW, J.

text:
    Donald J. SANDERS, Jr. v. J. RAY MCDERMOTT, INC.
    No. 2003 CA 0064.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 7, 2003.

      Kyle Sherman, Lafayette, for Plaintiff-Appellant Donald J. Sanders, Jr.
    J. Louis Gibbens, New Iberia, for Defen-danb-Appellee J. Ray McDermott, Inc.
    Before: FOIL, PETTIGREW, and DOWNING, JJ.
   J^PETTIGREW, J.

On appeal in this workers’ compensation case, the claimant asserts the workers’ compensation judge (“WCJ”) erred in denying his motion to compel discovery and in granting summary judgment in favor of the employer, dismissing his claim with prejudice.

FACTS AND PROCEDURAL HISTORY

On May 2, 2002, claimant, Donald J. Sanders, Jr., filed a disputed claim for compensation with the Office of Workers’ Compensation averring entitlement to workers’ compensation benefits. Mr. Sanders alleged that on April 2, 2002, during the course and scope of his employment with J. Ray McDermott, Inc., he injured himself while he was “bent over cutting a piece of ... steel grating with a hand held cutting torch.” Mr. Sanders noted that when he stood up from doing this work, he “felt severe pain in [his] lower back which traveled down the back of [his] right thigh.”

On the day of his accident, Mr. Sanders completed a form entitled “EMPLOYEE’S ACCIDENT/ILLNESS REPORT.” In response to a question about what caused his injury, Mr. Sanders reported, “Working in awkward uncomfortable position.” Further describing his accident, Mr. Sanders noted as follows: “Cutting grating in Bay 4 Bldg. 1 for Heliport Landings. Started to feel severe pain in his back and legs. Pain was minor the previous day when I was working under Heliport section installing pad-eyes and stiffner [sic] plates.”

Mr. Sanders and Terrell Perro, a coworker who was with him at the time, immediately reported this incident to their supervisor, Leroy Keith. After explaining his injury and the pain he was experiencing, Mr. Sanders was told to seek medical treatment. He was seen that same day by Dr. Thibodeaux, who treated him conservatively for a muscle strain.

Mr. Sanders returned to McDermott the following day, but not to his regular duties. He worked for the next five or six days in the dispensary doing office work. Thereafter, on April 8, 2002, he was seen by Dr. James C. McDaniel, a physician of his choice. On the following day, Mr. Sanders was examined by Dr. Christopher E. Cenac at the request of McDermott. According to Dr. Cenac’s April 9, 2002 report, Mr. Sanders’ latest MRI was|snot available for his review at the time he examined Mr. Sanders. Dr. Cenac noted as follows with regard to the incident in question:

Donald Sanders was examined 4/9/02. The MRI completed recently has been requested for review and further comment. By history the patient had prior surgery in November 1994 not related to a work related incident. At that time he had low back and bilateral leg complaints. He was returned to work after 6 months. 40 pound lifting restrictions were assigned by the pre-employment physician. He changed jobs and ha[d] a pre-employment physical.by Dr. Bourgeois in 1997 and again 40 pound lifting restrictions were assigned. He was allowed to work at McDermott as a fitter. He denies any interim complaints. On 4/2/02 he was cutting a piece of grating and had the onset of severe back pain. There was no history of an accident or injury. He was seen by Dr. McDaniel, his prior treating physician. An MRI was completed. .

Mr. Sanders was ultimately seen by Dr. Stefan G. Pribil, a neurosurgeon, in May 2002. According to Dr. Pribil’s records, Mr. Sanders presented with complaints of pain in his back, radiating into his right leg. Mr. Sanders reported to Dr. Pribil that although he had previously undergone surgery for a massive disc herniation, he had recovered from his surgery and was doing well. However, on April 2, 2002, while working at McDermott, Mr. Sanders injured his back again. Mr. Sanders indicated that he was leaning over and cutting with a hand-held torch when, upon straightening up from that position, he felt a sudden sharp pain radiating into the back and right leg. Dr. Pribil performed a series of operations on Mr. Sanders in May and August 2002 to address his multiple disc herniations. In a report dated October 1, 2002, Dr. Pribil concluded that Mr. Sanders’ injuries were “more likely than not ... caused from the accident/incident of April 2, 2002.”

In response to Mr. Sanders’ claim for compensation, McDermott denied that Mr. Sanders was involved in an accident as defined in the Louisiana Workers’ Compensation Act. McDermott alleged that any impairment Mr. Sanders may be suffering from was related to causes other than his employment at McDermott. On September 19, 2002, McDermott filed a motion for summary judgment alleging that there were no genuine issues of material fact and that Mr. Sanders’ suit should be dismissed with prejudice because he did not sustain an accident entitling him to workers’ compensation benefits. In support of the motion, McDermott introduced Mr. Sanders’ medical records, excerpts Rfrorn Mr. Sanders’ deposition, and a copy of the recorded statement given by Mr. Sanders on April 3, 2002.

In response to McDermott’s motion for summary judgment, Mr. Sanders filed a memorandum in opposition to the motion, alleging that McDermott had not met the burden of showing there was no genuine issue of material fact,- and thus, summary judgment was not appropriate. In support of his position, Mr. Sanders introduced his deposition, his medical records, and a copy of the “EMPLOYEE’S ACCIDENT/ILLNESS REPORT” completed on April, 2, 2002. Mr. Sanders also filed a motion to compel discovery, contending that McDer-mott failed to properly answer the following interrogatory:

INTERROGATORY NO. 22:

Did Adele Cook and/or any other representative of defendant make any inquiries directly to Dr. Christopher Cenac regarding his report of April 9, 2002 indicating that there was “no history of an accident or injury?” If defendant answers affirmatively, please list the specific dates, times, and places that these inquiries took place.

In answers to interrogatories, McDermott responded to the above interrogatory as follows: “This question is best directed to Dr. Cenac whose report is enclosed.” In connection with his motion to compel discovery, Mr. Sanders also requested that McDermott be ordered to pay all costs and reasonable attorney fees incurred in filing the motion.

On October 17, 2002, the WCJ heard arguments on McDermott’s motion for summary judgment and Mr. Sanders’ motion to compel. After considering the applicable law and the evidence in the record, the WCJ denied Mr. Sanders’ motion to compel, but granted'McDermott’s motion for summary judgment, dismissing Mr. Sanders’ suit with prejudice.' The WCJ offered no reasons for judgment, either written or oral. A judgment in accordance with these findings was rendered and signed on October 31, 2002. It is Rfrom this judgment that Mr. Sanders has appealed, assigning the following specifications of error:

1. The trial judge erred in denying Sanders’ motion to compel.
2. The trial court erred in granting J. Ray McDermott’s motion for: summary judgment and dismissing Sanders’ claim with prejudice at his cost.
3. The trial court erred in failing to grant Sanders’ motion for summary judgment.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Western Sizzlin Steakhouse v. McDuffie, 2002-0935, p. 3 (La.App. 1 Cir. 3/28/03), 844 So.2d 355, 357, writ denied, 2003-1147 (La.6/20/03), 847 So.2d 1236. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La.Code Civ. P. art. 966(A)(2). The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as. to material fact and that mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966(B).

On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La.Code Civ. P. art. 966(C)(2); Robles v. Exxonmobile, 2002-0854, p. 4 (La.App. 1 Cir. 3/28/03), 844 So.2d 339, 341-342.

When appropriate under Articles 966 and 967, summary judgment is available in workers’ compensation cases. See La. Code Civ. P. art. 966(A)(2); La. R.S. 23:1317(A); Sept v. City of Baker, 1998-1190, p. 6 (La.App. 1 Cir. 5/18/99), 733 So.2d 748, 751, abrogated on other grounds, Dufrene v. Video Co-Op, Louisiana Workers’ Compensation Corp., 2002-1147 (La.4/9/03), 843 So.2d 1066. In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Allen v. State ex rel. Ernest N. Mortal New Orleans Exhibition Hall Authority, 2002-1072, p. 5 (La.4/9/03), 842 So.2d 373, 377. Review of summary judgments in workers’ compensation cases is conducted in the same manner. See Davis v. AMS Tube Corporation, 2000-1311, p. 4 (La.App. 1 Cir. 6/22/01), 801 So.2d 466, 468, writ denied, 2001-2122 (La.11/2/01), 800 So.2d 877.

In the instant case, McDermott presented several documents in support of its motion for summary judgment, most of which did not comply with .the requirements of La.Code Civ. P. arts. '966 and 967. Pursuant to Article 966(B), a summary judgment should be granted only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” Moreover, Article 967 provides, in pertinent part, as follows with regard to the requirements for affidavits and evidence in support thereof:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

Articles 966 and 967 do not permit a party to utilize unsworn and unverified documents as summary judgment evidence. A document that is not an affidavit or sworn to in any way, or which is not certified or attached to an affidavit, is not of sufficient evidentiary quality to be given weight in determining whether there are remaining genuine issues of material fact. Robertson v. Northshore Regional Medical Center, 97-2068, pp. 5-6 (La.App. 1 Cir. 9/25/98), 723 So.2d 460, 464. Thus, in our de novo review of the record, we will 17not consider the medical records or the recorded statement submitted by McDermott, neither of which were verified or in affidavit form.

The remaining evidence offered in support of McDermott’s motion for summary judgment was in the form of excerpts from Mr. Sanders’ deposition. Mr. Sanders testified that he “was leaning over cutting” a piece of steel grating. He continued, noting that when he “raised up,” he “felt a sharp pain, a shocking pain in [his] back [that] went down [his] leg.” Mr. Sanders immediately reported the incident to his supervisor and was advised to seek medical treatment.

Our review of these excerpts from Mr. Sanders’ deposition reveals that McDermott has failed to carry its initial burden of showing an absence of factual support for Mr. Sanders’ claim that he was injured in a work-related accident. Thus, the burden never shifted to Mr. Sanders to set forth specific facts showing there was a genuine issue for trial. In granting summary judgment in favor of McDermott, the WCJ impermissibly weighed evidence and assessed issues of credibility. See Succession of Bankston, 2002-0548, p. 6 (La.App. 1 Cir. 2/14/03), 844 So.2d 61, 64, writ denied, 2003-0710 (La.5/9/03), 843 So.2d 400. Accordingly, the WCJ erred in granting summary judgment and preventing a full trial on the merits.

MOTION TO COMPEL DISCOVERY

Included in the WCJ’s October 31, 2002 judgment was the denial of Mr. Sanders’ motion to compel discovery. Qn appeal, Mr. Sanders alleges that the issue of whether McDermott thoroughly investigated his claim before denying him benefits is relevant. Thus, Mr. Sanders contends, the WCJ’s denial of his motion to compel McDermott to jsanswer Interrogatory No. 22 was in error. Mr. Sanders further asserts he is entitled to attorney fees pursuant to La.Code Civ. P. art. 1469(4). We agree with Mr. Sanders’ argument in this regard.

Because McDermott was not entitled to summary judgment in this case, Mr. Sanders’ claim for compensation remains viable, as does the issue of whether McDermott thoroughly investigated the claim before denying benefits to Mr. Sanders. The interrogatory in question is relevant to the issue of the arbitrary and capricious nature of McDermott’s denial of this claim. Thus, McDermott should be compelled to answer same.

CONCLUSION

For the above and foregoing reasons, the judgment below is reversed. Judgment is hereby rendered in favor of Mr. Sanders, compelling McDermott to properly respond to Interrogatory No. 22. The case is remanded to the WCJ for further proceedings consistent with this opinion and to determine whether Mr. Sanders is entitled to an award of costs and reasonable attorney fees incurred in filing the motion to compel discovery.

REVERSED; JUDGMENT RENDERED ORDERING MCDERMOTT TO ANSWER DISCOVERY; REMANDED FOR FURTHER PROCEEDINGS.

      . According to the record, Mr. Sanders filed a motion for summary judgment on October 11, 2002, alleging that there were no genuine issues of material fact and that judgment should be approved by the court granting him attorney fees and penalties for non-payment of medical treatment and benefits. However, these issues are not before us in the instant appeal as Mr. Sanders' motion for summary judgment was never decided by the WCJ.

      . Due to the serious technical defects in the evidence submitted by McDermott in support • of its motion for summary judgment, we were not required to go any further in our review of the record. Nonetheless, we note that the exhibits Introduced by Mr. Sanders in opposition to the motion for summary judgment were in proper form and sufficiently raised disputed issues regarding whether Mr. Sanders was injured in a work-related accident. Thus, we conclude, even assuming McDer-mott had submitted documents of sufficient evidentiary quality and carried its burden on the motion for summary judgment, the judgment below would still be in error.

      . We recognize that discovery issues are generally considered interlocutory in nature and, therefore, not subject to appeal. Succession of Brantley, 96-1307, p. 5 (La.App. 1 Cir. 6/20/97), 697 So.2d 16, 19; La.Code Civ. P. art.2083. However, when an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory rulings prejudicial to him, in addition to the review of the final judgment from which he has appealed. Landry v. Leonard J. Chabert Medical Center, 2002-1559, p. 5 n. 4 (La.App. 1 Cir. 5/14/03), 858 So.2d 454, 461 n. 4


author: IjDOUCET, Chief Judge.

text:
    Thelma IRVIN, individually and on Behalf of her minor child, Rochelle Johnlouis, v. STATE FARM MUTUAL AUTO INS. CO., State Farm Insurance Company, Lisa M. Reynaud, and Kim Reynaud.
    No. 03-717.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2003.
    Alfred Frem Boustany II, Lafayette, LA, for Plaintiff-Appellant, Thelma Irvin.
    Kenny Layne Oliver, Terry L. Rowe, David Oliver Way, Lafayette, LA, for Defendants-Appellees, State Farm Mutual Auto Ins. Co., Lisa Reynaud, and Kim Reynaud.
    Natasha Z. Wilson, Elizabeth C. Harper, New Orleans, LA, for Defendant-Appellee, Continental Casualty Company.
    Court composed of NED E. DOUCET, JR., Chief Judge, SYLVIA R. COOKS, and MICHAEL G. SULLIVAN, Judges.
   IjDOUCET, Chief Judge.

The Plaintiff, Thelma Irvin, appeals the dismissal, via summary judgment, of the claim against her employer’s UM insurance carrier.

The underlying facts of the case are undisputed. Thelma Irvin was employed by State Farm Insurance Company as a senior claims assistant. As a part of her job duties she transported mail to attorneys’ offices and to another State Farm office. If one was available she used a company owned vehicle, if no company car was available she used her own car. On January 3, 2001, she was using her own car to bring mail to State Farm’s attorney’s office. While stopped at a traffic light at the corner of Johnston Street and Ridge Road in Lafayette, Louisiana, her vehicle was struck from behind by a vehicle driven by Lisa M. Reynaud. As á result of injuries allegedly sustained in that accident, she filed suit against Lisa Reynaud; and against State Farm Mutual Automobile Insurance Co., which carried both her own uninsured/underinsured motorist coverage and Lisa Reynaud’s liability insurance. She claims damages both for her own personal injuries and for her minor child’s loss of consortium. Additionally, she filed suit against her employer, claiming coverage under its UM insurance.

State Farm Mutual Automobile Insurance, acting in its capacity of UM insurer for Irvin’s .employer, filed a' motion for summary judgment alleging that no issue of material fact remained but that the UM policy did not provide coverage to Ms. Irvin for this accident. They argüed both that Ms. Irvin was not an insured under the policy because she was not driving a State Farm owned vehicle and that, even if she was insured under the policy, Louisiana law prohibits stacking the employer’s UM policy on her own UM. The trial court granted the motion for summary judgment finding | ¡¿he anti-stacking statute applicable to prevent Ms. Irvin from making a claim against her employer’s UM insurance. Accordingly, the trial court dismissed this part of her claim. Ms. Irvin appeals.

SUMMARY JUDGMENT

A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits submitted, if any show there is no genuine issue of material fact such that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Araujo v. Eitmann, 99-1377 (La.App. 5th Cir.5/17/00), 762 So.2d 223, 225. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Reynolds v. Select Props., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Reynolds, supra; Schroeder v. Board of Supervisors of La. State Univ., 591 So.2d 342, 345 (La.1991).

Vintage Contracting, L.L.C. v. Dixie Bldg. Material Co., Inc., 03-422, p. 5 (La.App. 5 Cir. 9/16/03), 858 So.2d 22, 25-26.

COVERAGE

On appeal, Ms. Irvin is arguing that she is covered under her employer’s UM policy because it provides UM coverage for non-owned vehicles used in the employer’s business. However, we need not reach the question of coverage under the policy, since we find that Louisiana’s anti-stacking statute prevents Ms. Irvin from receiving benefits under her employer’s UM policy.

1 3Louisiana’s anti-stacking statute, La. R.S. 22:1406(D) provides in pertinent part:

D. The following provisions shall govern the issuance of uninsured motorist coverage in this state:
(c)(i) If the insured has any limits of uninsured motorist coverage in a policy of automobile liability insurance, in accordance with the terms of Subsection D(l), then such limits of liability shall not be increased because of multiple motor vehicles covered under said policy of insurance and such limits of uninsured motorist coverage shall not be increased when the insured has insurance available to him under more than one uninsured motorist coverage provision or policy; provided, however, that with respect to other insurance available, the policy of insurance or endorsement shall provide the following:
(ii) With respect to bodily injury to an injured party while occupying an automobile not owned by said injured party, resident spouse, or resident relative, the following priorities of recovery under uninsured motorist coverage shall apply:
(aa) The uninsured motorist coverage on the vehicle in which the injured party was an occupant is primary;
(bb) Should that primary uninsured motorist coverage be exhausted due to the extent of damages, then the injured occupant may recover as excess from other uninsured motorist coverage available to him. In no instance shall more than one coverage from more than one uninsured motorist policy be available as excess over and above the primary coverage available to the injured occupant.
(e) The uninsured motorist coverage does not apply to bodily injury, sickness, or disease, including death of an insured resulting therefrom, while occupying a motor vehicle owned by the insured if
such motor vehicle is not described in the policy under which a claim is made, or is not a newly acquired or replacement motor vehicle covered under the terms of the policy. This provision shall not apply to uninsured motorist coverage provided in a policy that does not describe specific motor vehicles.

In Pitts v. Fitzgerald, 01-0543, pp. 7-8 (La.App. 1 Cir. 5/10/02), 818 So.2d 847, 852-53 (citations omitted), the court explained stacking of insurance policies as follows:

14Stacking of UM coverages occurs when the amount available under one policy is inadequate to satisfy the damages alleged or awarded the insured and the same insured seeks to combine or stack one coverage on top of another for the same loss covered under multiple policies or under multiple coverages contained in a single policy.
The language of the anti-stacking statute limits the insured to recovery under only one policy, not allowing the insured to combine or stack coverages. The question of stacking only arises once it is determined that the person seeking to cumulate benefits on two or more uninsured motorist coverages is an “insured” under the terms of those policies.

Ms. Irvin’s accident falls clearly under the anti-stacking provision. Ms. Irvin herself has UM insurance. Even if she were insured under her employer’s policy as she argues here, under the language of the statute, she cannot increase her limits of UM coverage because she has insurance available to h[er] under more than one uninsured motorist coverage provision or policy. See La.R.S. 22:1406(D)(l)(c)(i).

Further, La.R.S. 22:1406(D)(l)(e) is also applicable to the argument advanced by Ms. Irvin. The court in Southerland v. Continental Casualty Co., 36,782 (La.App.2d Cir 1/29/03), 837 So.2d 712, writ denied, 03-0955 (La.5/16/03), 843 So.2d 1137, addressed a similar situation. In that case a restaurant employee was involved in a vehicular collision while in the course and scope of his employment. He asserted a claim for UM benefits against his employer’s insurance company arguing that he qualified as an insured under his employer’s policy and that as such he was entitled to UM benefits under the policy. The court discussed his claim stating that:

Even assuming that Southerland would be an insured under the liability endorsement, La.R.S. 22:1406(D)(l)(e) specifically states that the mandatory UM coverage does not apply to bodily injury of the insured while the insured is occupying a vehicle owned by the insured but not described in the insurance policy. Southerland (the alleged insured) was injured while driving a vehicle he owned that is not ^described in Continental’s policy. Therefore, this argument is without merit.

Id. at 714.

Assuming that Ms. Irvin is correct in arguing that she is covered under the liability portion of her employer’s policy, La. R.S. 22:1406(D)(l)(e) prevents her from recovering under the UM portion of the policy because her vehicle is not described in the policy. An examination of the vehicle schedule attached to the policy in question reveals that no 1999 Ford Escort was listed. Since her vehicle was not listed in the policy, she cannot recover under the UM provisions of that policy.

Accordingly, we find no error in the trial court’s decision to grant the summary judgment in this ease, dismissing, pursuant to the anti-stacking statute, Ms. Irvin’s claim against her employer’s UM insurer.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the Plaintiff/Appellant, Ms. Thelma Irvin.

AFFIRMED.


author: JjDECUIR, Judge.

text:
    Carrol J. VINCENT v. Amanda Cannon MILLER, et al.
    No. 03-0759.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2004.
    Rehearing Denied March 17, 2004.

      Allen L. Smith, Jr., Plauche, Smith & Nieset, Lake Charles, LA, for Defendants/Appellees: Roger G. Burgess Erin McCall Alley Amanda Cannon Miller Judy Simon Miller.
    Carrol J. Vincent, In Proper Person, Sulphur, LA.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and GLENN B. GREMILLION, Judges.
   JjDECUIR, Judge.

Carrol J. Vincent appeals a judgment of the trial' court ’ granting summary judgment in favor of attorneys Roger Burgess and Erin Alley.

FACTS

Vincent filed suit against Amanda Cannon Miller and Judy Simon Miller, and their attorneys, Burgess and Alley, alleging intentional tortious conduct. Specifically, Vincent alleged that defendant’s attorneys made written and oral statements accusing him of stalking Amanda and Judy and stating that he had been arrested for stalking. He alleges that these accusations of criminal conduct are false and defamatory per se.

The defendants filed exceptions of no cause of action and motions for summary judgment. Vincent dropped his complaint against Amanda and Judy, but the trial court granted the exceptions of no cause of action in favor of Amanda, Judy, and attorney Alley. In addition, the trial court granted the motions. for summary judgment in favor of Burgess and Alley. Vincent lodged this appeal with respect to the grants of summary judgment.

DISCUSSION

At the outset, we note that, on appeal, summary judgments are reviewed de novo. Magnon v. Collins, 98-2822 (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)(C). This means that judgment should be rendered in favor of the movant if 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 evidentiary burden at | atrial, 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).

A successful claimant in a defamation action must establish five elements: (1) defamatory words; (2) publication; (3) falsity; (4) malice; and (5) injury. Ordinarily, where the defamatory words complained of are statements that the injured party engaged in criminal conduct and publication is established, the elements of falsity, malice, and injury are presumed although they may be rebutted. Arledge v. Hendricks, 30,588 (La.App. 2 Cir. 6/26/98), 715 So.2d 135, writ denied, 98-2015 (La.11/20/98), 728 So.2d 1287.

Vincent’s petition alleges that the defamatory remarks were made and published in the course of the prior judicial proceedings. Statements made in the course of a judicial proceeding are subject to a qualified privilege if the statements are material to the proceeding, and are made with probable cause and without malice. Freeman v. Cooper, 414 So.2d 355 (La.1982). Qualified privilege is an affirmative defense to defamation. La.Code Civ.P. art. 1005; Douglas v. Thomas, 31,-470 (La.App.2d Cir. 2/24/99), 728 So.2d 560, writ denied, 99-0835 (La.5/14/99), 741 So.2d 661. The existence of this affirmative defense is apparent on the face of the allegations in the petition, supporting documents (i.e., the allegations that the defamatory statements were made in the course of previous litigation), and the motion for summary judgment.

| ¡¡Additionally, there is a heightened pleading requirement when suing an attorney (and/or clients) for defamation in the context of a judicial proceeding. This heightened standard requires the plaintiff to allege facts in his petition that show malice or an intent to cause direct harm to the plaintiff. Montalvo v. Sondes, 93-2813 (La.5/23/94), 637 So.2d 127. The policy behind this rule is not to reduce a lawyer’s responsibility for his actions, but to prevent a chilling effect on the adversarial process of representing one’s client and to prevent a division of the loyalty an attorney owes the client. Id; see also Jacobs v. O’Bannon, 472 So.2d 180 (La.App. 4 Cir.1985), and 531 So.2d 562 (La.App. 4 Cir.1988).

The court in Arledge, stated:

Words which expressly or implicitly accuse another of criminal conduct or which, by their nature, tend to injure one’s personal or professional reputation are considered defamatory per se. If the plaintiff proves publication of defamatory per se words, the elements of falsity and malice are presumed although they may be rebutted by the defendant. Injury is also presumed.

Arledge, 715 So.2d at 138.

In the present case, to rebut the presumption of falsity, Burgess and Alley presented sworn affidavits from members of the Attorney General’s staff confirming that "Vincent was in fact charged with stalking and that the charges were being vigorously pursued by their office. Moreover, Vincent admitted in open court that he was in fact charged with stalking, had been arraigned, and was being prosecuted on that charge. Vincent argues that the statements and pleadings of the attorneys are false because he was never actually arrested on the charge. The trial court found this to be a meritless distinction, as do we. Since falsity is one of the requisites for a defamation suit and, having found that Burgess and Alley rebutted the presumption of falsity, the trial court granted summary judgment. We find no error in the trial court’s judgment.

| CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of these proceedings are taxed to appellant, Carrol J. Vincent.

AFFIRMED.


author: 1 JAMES F. McKAY III, Judge.

text:
    Jerrilyn RAY, the widow of the late Walter Ray III, Individually, and on behalf of her Minor Children v. CITY OF NEW ORLEANS, Department of Parks and Parkways.
    No. 2003-CA-1484.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 4, 2004.

      Peter D. Derbes, New Orleans, LA, for Plaintiff/Appellant.
    Richard L. Seelman, Wayne J. Fontana, Courtenay, Hunter & Fontana, L.L.P., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY III, Judge MAX N. TOBIAS JR., Judge EDWIN A. LOMBARD).
   1 JAMES F. McKAY III, Judge.

This case involves a disputed claim for death benefits made pursuant to the Louisiana Workers’ Compensation Act by the appellants Jerrilyn Ray, the widow of Walter Ray, III, on behalf of herself and her minor children. The claim arises out of the shooting death of Walter Ray III, who at the time of his death was employed as a grounds keeper for the New Orleans Department of Parks and Parkways (DPP). The shooting death of Walter Ray occurred on April 14, 2000, at the Texaco gas station at 2829 Gentilly Boulevard. The perpetrator was James Taylor, a fellow employee at the DPP.

The City denied the appellants’ entitlement to death benefits because Walter Ray’s death did not involve an “accident arising out of and in the course of his employment,” as contemplated by La. R.S. 23:1031(A) which sets forth the requirements for an accident to, be compensable pursuant to the Act.

The issue of whether Walter Ray’s injury occurred within the course and scope of his employment is a factual determination. Factual findings of a hearing officer may not be disturbed by an appellate court unless the factual findings are | ¿manifestly erroneous or clearly wrong. Hulbert v. Boh Bros., 99-1187, p. 4 (La.App. 4 Cir. 1/5/00), 751 So.2d 994, 997. In order for an appellate court to set aside a hearing officer’s factual finding, the appellate court must conclude from the record, viewed in its entirety, that a reasonable factual basis did not exist for the hearing officer’s finding and that this finding is clearly wrong. Id. Thus, even though an appellate court may feel that its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Id.

Before reviewing the evidence, we set forth the controlling principles of law on course and scope. Generally, two elements must be proven to show that an employee was within the course and scope of his employment: (1) that the injury suffered by the employee arose out of the employment (“the arising-out-of requirement”), and (2) that the employee suffered the injury during the course of his employment (“the during-course-of requirement”). Bolton v. Tulane Univ. of Louisiana, 96-1246, p.11 (La.App. 4 Cir. 1/29/97), 692 So.2d 1113, 1120.

The principal objective of the “arising-out-of employment” requirement is to separate accidents that may be attributed to employment risks, which form the basis of the employer’s obligation under the compensation system, from accidents attributable to personal risks. Mundy v. Department of Health and Human Resources, 593 So.2d 346, 349 (La.1992). A determination of whether an accident arises out of the employment requires that a court consider only the following 1 ¡¡questions: (1) Was the employee then engaged about his employer’s business and not-merely pursuing his own business or pleasure; and (2) did the necessities of that employer’s business reasonably require that the employee be at the place of the accident at the time , the accident occurred?

Bolton, 96-1246 at p. 13, 692 So.2d at 1121.

In the instant matter, on the day of the incident, Walter Ray and James Taylor were in the assembly room at the DPP completing their respective payroll cards. A fight ensued between the two men in a dispute over a pen. As a result of this incident, both men were suspended pending further disciplinary proceedings and ordered to leave the DPP premises at once. Both men left the DPP premises. Later that afternoon, around 1:00 p.m., both men returned to the DDP complex to collect their paychecks. Security allowed both men onto the premises and they apparently left the premises separately and without incident. Soon thereafter, while Walter Ray was in the Texaco station waiting in line to cash his check, a female confronted him. A verbal altercation ensued between Walter Ray and this female. Subsequently, James Taylor entered the store and shot and killed Walter Ray. The woman and James Taylor left the store together and drove off. James Taylor was ultimately convicted of second-degree murder in connection with this shooting.

Although, the record indicates that there was bad blood between Mr. Ray and Mr. Taylor during the time that they were employed by the DPP, the incident of the shooting cannot be construed to.be in the course and scope of employment at |4the DPP. The hearing office in its reasons for judgment made factual determination and succinctly stated that:

Claimant Walter Ray and a co-employee got into a fight on the employer’s premises. The employer already had made sure these two employees did not work on the same truck together. The reason for the fight was a dispute over an ink pen between two employees with an alleged history of inability to get along.
After the fight, the employer escorted both employees off the premises. The employer made sure both employees were put off the premises separately so that they would not resume the fighting.
However, later that day both employees returned at the same time to get their paychecks. Again, the employer saw to dt that they were both put off the premises separately.
Unfortunately, both employees went across the street to a local facility that sold gas, etc. (and possibly. cashed checks). At that time, another verbal dispute erupted. At the end of the altercation, Walter Ray died. The other employee is now serving a life imprisonment term for his killing. His girlfriend, who was involved in the dispute was not jailed.
This employer did all the necessary and reasonable to keep these two men from fighting each other.
The issue of the ink pen was a bogus issue. These two men were committed to fighting despite this employer’s best efforts to prevent it.
This fight was not within the course and scope of employment. It was a long-standing personal feud between the two employees.

In reviewing the trial court’s judgment, we must first examine if the injury that Walter Ray suffered arose out of his employment. Secondly, we must determine if the injury he incurred was suffered during the course of employment. Clearly, Walter Ray was not about his employer’s business whep he went to the Texaco station to cash his paycheck; this action had no correlation to any business of the DPP. Walter Ray’s going to the Texaco station is not related in any way to work nor was it performed during the course of his employment with the DPP. Neither did his employer’s | (¡business require him to be at the Texaco station. See Bolton. This was purely a personal errand conducted' on his own time. Furthermore, he was neither on his employer’s premises nor at another place where his employment activities would take an employee. See Mundy. We also take note that Walter Ray and James Taylor were under suspension from the DPP pending disciplinary action at the time of the incident.

Walter Ray’s activities were not in the course and scope of his employment as envisioned by the Workers’ Compensation Act. Clearly, he did not sustain a com-pensable injury. The trial court heard all of the evidence and made a factual determination and its judgment will not be disturbed upon this Court’s review. Accordingly, we affirm the Workers’ Compensation Judge’s denial of death benefits to the appellants.

AFFIRMED.

      . This gas station is across the Boulevard from the DPP facility.