author: | THIBODEAUX, Judge.

text:
    Bruce A. BAKER v. MAZDA MOTOR OF AMERICA, et al.
    No. 03-280.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2003.

      Fred Andrew Pharis, Pharis Law Offices, Alexandria, LA, for Plaintiff/Appel-lee, Bruce A. Baker.
    David A. Hughes, Hughes & LaFleur, Alexandria, LA, for Defendant/Appellee, State Farm Mutual Auto Ins. Co.
    Stephen Craig Carleton, Simoneaux, Carleton, Etc., LLC, Baton Rouge, LA, for Defendant/Appellant, Mazda Motor of America and Hixon Autoplex.

      Court composed of ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS, and BILLY HOWARD EZELL, Judges.
   | THIBODEAUX, Judge.

In this automobile redhibition case, the defendants, Mazda Motor Company of America, Inc., (Mazda) and Hixson Auto-plex of Alexandria, Inc., (Hixson) appeal the judgment of the trial court awarding the plaintiff, Bruce Baker (Mr. Baker), $6,000.00, representing a reduction in the purchase price of the vehicle. Mr. Baker filed an answer to the defendants’ appeal contesting the trial court’s failure to award attorney fees for the post-trial work done by his counsel in this matter and on appeal. For the following reasons, we affirm the trial court’s judgment regarding the reduction in the purchase price of Mr. Baker’s vehicle. Further, we award the amount of $2,500.00 for plaintiffs counsel’s work done on appeal.

I.

ISSUES

We shall consider: (1) whether Mr. Baker carried his burden of proving that a vice or defect existed at the time the vehicle was manufactured and (2) whether the trial court erred in admitting the testimony of Mr. Baker’s witness, Steve Dauzat, the owner of Auto-Tech, a vehicular parts and service shop, as an expert in auto mechanics and basing its decision thereon.

II.

FACTS

Mr. Baker purchased a 1999 Mazda 626 passenger vehicle from Hixson on April 17, 1999. The car came with a three year/fifty thousand mile warranty. Susan Baker, Mr. Baker’s wife, testified that the couple’s practice was to keep a | ¡¡.purchased vehicle for a couple of years after it was paid off. Later, the couple would trade in the old car for a new one.

By January 2001, the Mazda had been driven sixty-one thousand miles. Mrs. Baker testified that it was in January 2001 that the car first experienced trouble. While driving to an appointment, the car began sputtering, and smoke came out of the back. Mrs. Baker drove the car home. She explained that in her job as an insurance salesperson for various insurance companies, she used the car to drive all over Louisiana and parts of Texas; thus, the reason for the high mileage. The Bakers testified that they changed regularly the proper oil and filter as well as regularly checked other fluids and the tires on the car. Mrs. Baker recalled driving the car in the rain but denied that the car had ever been submerged in water.

The Bakers took the car to Hixson, the dealership from where they bought the car, to have it examined. The service manager told Mrs. Baker that the car had been water-damaged. Mrs. Baker expressed surprise at that diagnosis since none of her other cars ever had water damage, and because she had driven in Louisiana rain for thirty years. Mr. Baker testified that he was told a rod had been bent that would cost $5,700.00 to fix because they would have to put in a new engine. He was not told about any water getting in the engine. Mr. Baker did not want to put a new engine in the car. Hixson told him that they did not rebuild engines and would only put in a new engine. Mr. Baker thought that it was best to take the car to a place that could rebuild the engine in the car or put in a used engine at a much lower cost.

When his wife informed him that the service manager at Hixson concluded that water caused the engine problems, Mr. Baker called his insurance company. The service manager had advised Mr. Baker that the insurance company should pay to fix a water-damaged engine. By January 22, 2001, the car had been | ¡¡examined by State Farm, the Bakers’ insurance company. Mr. Baker was told that the engine had not suffered water damage. After paying for the diagnostics done at Hixson, the Bakers had their car taken to Auto-Tech, an automobile repair shop. State Farm agreed to look at the engine again for evidence of water damage after it was taken apart at Auto-Tech. Again, State Farm’s investigator did not find any evidence of water damage, nor did the investigator see a bent rod. Ultimately, State Farm denied payment of the Bakers’ claim.

The Bakers’ only options were to install a new engine or a rebuilt used engine. Due to the expense, they opted not to use a new engine. Mr. Dauzat of Auto-Tech was able to find a used engine with low mileage for $3,000.00. Even after the engine was replaced, the Bakers continued to experience problems with the car, most notably, the fuel pump. Mr. Baker testified that he replaced the fuel pump several times. With the exception of one week in March 2001, the Bakers did not have the use of their car from January 15, 2001 through March 5, 2001. When the Bakers’ car was returned, they still experienced problems.

The Bakers had problems with the “check engine” light coming on. Thus, they returned the car to Hixson so that a diagnostic test could be run on the car to determine the reason the “check engine” light stayed on. The Hixson mechanics replaced an oxygen sensor in the engine which caused the “check engine” light to go out. Mr. Baker was also told that the torque converter of the transmission needed to be replaced. At that point, Mr. Baker decided that it was not worth the expense to fix the transmission. Mr. Baker decided to get rid of the car. When the Bakers traded in the Mazda 626 for another vehicle, the trade-in value was less because of the problems with the ear.

Instate Farm denied the Mr. Baker’s claim and neither Hixson nor Mazda accepted responsibility for the problems the Bakers had with the car. Thus, Mr. Baker filed the present redhibition action seeking a reduction in the purchase price of the car. The trial court found in favor of Mr. Baker and awarded a reduction in the purchase price in the amount of $6,000.00 and attorney fees in the amount of $7,500.00. Thereafter, the defendants, Mazda Motor of America, Inc. and Hixson filed the present appeal.

III.

LAW AND DISCUSSION

Standard of Review

The determinative issue on appeal concerns the factual findings of the trial court. The jurisprudence in this area is well-settled. The standard of appellate review was set forth by the Supreme Court in Rosell v. ESCO, 549 So.2d 840 (La.1989) and in Lewis v. State Through DOTD, 94-2370, pp. 4-5 (La.4/21/95), 654 So.2d 311, 314. That standard is manifest error.

Redhibition

Redhibition is defined in La.Civ. Code art. 2520:

The seller warrants the buyer against redhibitory defects, or vices, in the thing sold.
A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives a buyer the right to obtain rescission of the sale.
A defect is redhibitory also when, without rendering the thing totally useless, it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price. The existence of such |Ra defect limits the right of a buyer to a reduction of the price.

An action in redhibition lies only if the defect existed at the time of delivery. La.Civ.Code art. 2530. In this case, the trial court also relied on La.Civ.Code art. 2545 in assessing damages, which governs the liability of sellers who know of a redhi-bitory defect in a thing sold. Louisiana Civil Code Article 2545 states:

A seller who knows that the thing he sell has a defect but omits to declare it, or a seller who declares that the thing has a quality that he knows it does not have, is liable to the buyer for the return of the price with interest from the time it was paid, for the reimbursement of reasonable expenses occasioned by the sale and those incurred for the preservation of the thing, and also for damages and reasonable attorney fees. If the use made of the thing, or the fruits it might have yielded, were of some value to the buyer, such a seller may be allowed credit for such use of fruits.
A seller is deemed to know that the thing he sells has a redhibitory defect when he is a manufacturer of that thing.

Further, a buyer may limit his demand to the reduction of the price, as the Bakers have done in the present case, pursuant to La.Civ.Code art. 2541, and is the only recourse if the buyer no longer owns the vehicle. Cloud v. Huffman Motor Co., Inc., 416 So.2d 266 (La.App. 3 Cir.1982).

The term “defect” as contemplated by La.Civ.Code art. 2520 in a redhibitory action was discussed by this court in Harper v. Coleman Chrysler-Plymouth-Dodge, Inc., 510 So.2d 1366, 1369 (La.App. 3 Cir.1987):

[Defect] means a physical imperfection or deformity; or a lacking of necessary components or level of quality. Ezell v. General Motors Corporation, 446 So.2d 954 (La.App. 3rd Cir.1984), writ denied, 449 So.2d 1350 (La.1984); Williams v. Louisiana Machinery Company, Inc., 387 So.2d 8 (La.App. 3rd Cir.1980). The defectiveness of the thing sold is a factual determination by Ifithe trier of fact, whose factual conclusions will not be disturbed on appeal absent manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The Louisiana Supreme Court discussed the burden of proof in a redhibition action in Rey v. Cuccia, 298 So.2d 840, 843 (La.1974) as follows:

The buyer may prove the existence of redhibitory defects at the time of the sale not only by direct evidence of eyewitnesses, but also by circumstantial evidence giving rise to the reasonable inference that the defect existed at the time of the sale. (Citations omitted). As stated in Jordan v. Travelers Insurance Co., ... 257 La. 995, 245 So.2d 151, 155 (1971) “... proof by direct or circumstantial evidence is sufficient to constitute a preponderance when taking the evidence as a whole, such proof shows the fact or causation sought to be proved is more probably than not.”

The plaintiffs in a redhibition action are not required to negate all other causes of a defect. Ewing and Salter, Inc. v. Gafner Automotive & Mach., Inc., 392 So.2d 762 (La.App. 3 Cir.1980), writ denied, 396 So.2d 933 (La.1981).

The defendants contend that Mr. Baker did not prove that a defect existed in the car at the time of its manufacture. They argue that the problems experienced by the Bakers with the 1999 Mazda 626 occurred because of Mr. Baker’s and his wife’s excessive use of the car and their failure to conduct the proper maintenance on the vehicle as well as water intrusion in the engine. Mr. Baker asserts that although they used the vehicle extensively, they followed the proper maintenance schedule as determined by the owner’s manual.

Mr. Baker denied that the car had been driven through high water during the two years following the purchase of the car. He also denied that the car had been submerged. The State Farm investigators examined the car after-the engine was taken apart at Auto-Tech. Its property damage adjusters opined in their testimony that the engine problems were not caused by water intrusion. Craig Jones, one of the State farm adjusters, testified that Hixson did not tell him about any sand or debris in the |7engine’s air filter, although at trial the Hixson mechanics testified that there was sand and leaves in the air cleaner. A Hixson mechanic also testified that the actual cause of the engine failure was not known. Craig Jones, who examined the car for State Farm, noted that the oil looked like it had not been changed. However, Mr. Jones admitted that he was not a mechanic and that the dark color of the oil could have been caused by the heat. Mr. Baker testified that no one at Hixson told him his engine problems were caused by a lack of maintenance. Richie Quinn, Hixson’s service manager at the time of trial but not at the time the Bakers experienced engine problems, testified in his deposition that he would not expect a car engine to fail at 61,000 miles. He farther testified that any costs to repair the vehicle would have to be borne by the Bakers.

In the final analysis, neither the Auto-Tech mechanics nor the State Farm investigators, the only people to examine the engine after it had been taken apart, could find any evidence of water intrusion into the engine of the Bakers’ 1999 Mazda 626. The trial court heard evidence that the Bakers perhaps did not conduct the proper maintenance on the vehicle. However, this was never a reason given to the Bakers at the time they reported engine problems. Mr. Baker testified that he had the oil and filter changed on a regular basis. Further, prior to the engine failure in January 2001, the Bakers reported to Hixson that the “check engine light” was on. The service report of that day indicated that Hixson merely screwed the car’s gas cap on tighter which seemed to make the light go off.

It has been recognized for a number of years:

It is not incumbent upon the buyer to seek out, allege, and prove the particular and underlying cause of the defect which makes the thing sold unfit for the purpose intended, particularly when the thing is a complicated piece of machinery; but it suffices if he alleges and afterwards proves as a fact that such defects exist.

Is Crawford v. Abbott Automobile Co., 157 La. 59,101 So. 871 (1924).

In this case, there is proof that there was a defect in the manufacture of the ear’s engine and the components thereof. The evidence supports that there was no fault in the maintenance of the car’s engine. By testimony of the car dealership’s service manager, this engine should have lasted longer than 61,000 miles although it was no longer under warranty. The trial court found the plaintiff proved that the failure of the engine was due to mechanical problems which, in the absence of proof by the defendants of other causes, was more properly attributed to faulty manufacture. We are satisfied from the facts in this record that Mr. Baker has discharged his burden of proving by circumstantial evidence, and logical inferences, that a defect existed in the manufacture of the engine at the time the car was sold. Thus, we find no error in the trial court’s determination of fact that a redhibitory defect existed in the vehicle, such that Mr. Baker is entitled to a reduction in the purchase price.

Admission of Expert Witness Testimony

The defendants assert that the trial court erred in allowing Dauzat of Auto-Tech to testify as an expert in auto mechanics. They argue that Dauzat merely owned and operated a parts and service shop and had not worked as a mechanic in over twenty-three years. Further, the defendants argue that Dauzat had no training or education with respect to servicing foreign cars and more specifically, Mazda vehicles. Mr. Baker argues that prior to becoming a parts and service shop owner, Dauzat worked as a line mechanic and service advisor for a Chevrolet dealership. His work included major engine rebuilding and replacement. Dauzat also worked at two Oldsmobile dealerships as service ad-visor. Part of Dauzat’s job as a service advisor was to oversee the mechanics working on the vehicles and to help diagnose problems. In his present position as owner of Auto-Tech, he supervises ASE-eertified mechanics [9and has been doing this type of work for sixteen years. His job is to diagnose vehicle problems and conduct major engine repairs.

The requirements of expert testimony are set forth in La.Code Evid. art. 702, which states: “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” In Mistich v. Volkswagen of Germany, Inc., 95-0939, p. 8 (La.1/29/96), 666 So.2d 1073, 1079, the supreme court noted, “[fjormal education or training in a particular field is not always necessary to qualify as an expert in a particular field. Experience alone is sufficient.” On appeal, a trial court’s acceptance of a witness as an expert will not be disturbed, unless it is clearly erroneous. Id. Although Dauzat does not have specific training to work on Mazda vehicles, he has worked on foreign vehicles and Mazda vehicles. Considering Dauzat’s extensive experience and training, we find no error with the trial court’s acceptance of him as an expert.

Attorney Fees

Mr. Baker answered the appeal of defendants and requested attorney fees for work done defending this appeal. In Johnson v. Louisiana Container Co., 02-382, pp. 24-25 (La.App. 3 Cir. 10/2/02), 834 So.2d 1052, 1067, writ denied, 02-3099 (La.5/9/03), 843 So.2d 394 we quoted our decision in Sinegal v. Able Glass Co., Inc., 95-10, p. 5 (La.App. 3 Cir. 10/11/95), 663 So.2d 393, 396, with respect to awards of attorney fees:

An increase in attorney’s fees is awarded on appeal when the defendant appeals, obtains no relief, and the appeal has necessitated more work on the part of the plaintiffs attorney, provided that the plaintiff requests such an increase. Pitcher v. Hydro-Kem Services, Inc., 551 So.2d 736 (La.App. 1 Cir.), writ denied, 553 So.2d 466 (La.1989).

In the present case, a review of the additional work necessitated by this appeal reveals that an award of $2,500.00 in attorney fees is warranted. See Poirrier v. Otis Engineering Corp., 602 So.2d 207 (La.App. 3 Cir.1992).

IV.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. We additionally award plaintiff, Bruce Baker, $2,500.00 in attorney fees for all work performed on appeal. Costs of this appeal are assessed against Mazda Motor Company of America, Inc. and Hixson Autoplex of Alexandria, Inc.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Richard STERLING v. ASPLUNDH TREE EXPERT CO.
    No. 2003-266.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2003.
    Michael Benny Miller, Miller & Miller, Crowley, LA, for Plaintiff-Appellee/Rich-ard Sterling.

      Christopher Richard Philipp, Lafayette, LA, for Defendant-Appellant/Asplundh Tree Expert Co.
    Court composed of ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS, and BILLY HOWARD EZELL, Judges.
   | THIBODEAUX, Judge.

In this workers’ compensation case, defendant, Asplundh Tree Expert Company (Asplundh), appeals the judgment of the Workers’ Compensation Judge (WCJ) in favor of plaintiff, Richard Sterling. The WCJ found that Sterling suffered an accident and consequent back injury while in the course and scope of his employment with Asplundh, and was improperly denied payment of workers’ compensation benefits. Because Asplundh failed to pay Sterling workers’ compensation benefits, the WCJ awarded penalties in the amount of $4,000.00 and attorney fees in the amount of $10,950.00 as well as expenses in the amount of $737.01. Further, Asplundh appeals the trial court’s calculation of Sterling’s average weekly wage rate which included his paid vacation days and paid legal holidays.

For the following reasons, we affirm the judgment of the Office of Workers’ Compensation.

I.

ISSUES

We shall consider:

(1) whether the WCJ committed error in finding that Sterling was involved in an accident while in the course and scope of his employment that caused injury to his back and, in doing so, awarding him supplemental earnings benefits (SEB) and payment for medical treatment; (2) whether the WCJ’s calculation of Sterling’s SEBs was proper; and, (3) whether the WCJ committed error in awarding Sterling penalties and attorney fees.

JLaiL

FACTS

There is no dispute that in September 1999, Sterling was employed by Asplundh as a laborer, and that he was working on Avery Island. He had been employed by Asplundh since October 18, 1993. Sterling’s job duties working for the tree trimming company included pulling brush, as well as picking up tree trimmings and putting them into a chipper. Sterling testified that on September 8, 1999, he was pulling brush from the bottom of a hill to take to the top of the hill on Avery Island, in New Iberia. He was working with Ali-bie Tauzin, who was trimming the trees from around the power lines. The hill was wet and slippery. As Sterling pulled the tree trimmings up the hill, he felt a sudden pain in his back. At that point, he did not tell Tauzin he hurt his back. He took a deep breath and kept on working. Later in the evening, he informed Tauzin about his earlier back pain. He told Tauzin he “wasn’t doing good.... [He] was hurting on [his] back.”

Sterling was taking pain pills at the time and did nothing about his back. He testified that he did not think it was serious and went to work the next day, September 9, 1999. He did not do well the next day. On September 10, 1999, Sterling went to University Medical Center (UMC) because his back was still hurting. He told the attending physician that he hurt his back at work while pulling brush up a hill. He was treated for back pain. He did not go back to work. Sterling testified that he told his supervisor, Steve Venable, about hurting his back. He also told Venable that his doctor recommended that he take a CT scan of his back. Venable denies that Sterling told him about his back. Tauzin also denies that Sterling told him about his back hurting. Both testified that had they been told about Sterling hurting lahis back on the job, he would have had to take a drug test as per Asplundh’s company policy. Sterling did not take a drug test.

Venable testified that Asplundh continued to pay Sterling his regular wages of $360.00 per week because he was such a good employee and had been working with Asplundh for many years. However, payment of his wages was transferred to another Asplundh crew headed by Keith Lewis, not the crew on which Sterling worked. Asplundh stopped paying Sterling’s wages on February 12, 2000. Thereafter, on July 12, 2000, Sterling filed a claim for payment of disability and medical expenses as well as penalties and attorney fees. Asplundh answered Sterling’s claim denying that he sustained an injury while in the course and scope of his employment.

After trial in this matter, the WCJ ruled from the bench in favor of Sterling and ordered Asplundh to pay him SEB in the amount of $283.85 per week beginning September 10, 1999. Asplundh was given a dollar-for-dollar credit for all wages it paid Sterling in lieu of workers’ compensation benefits. Asplundh was. also ordered to pay for Sterling’s reasonable medical treatment related to his back injury. Lastly, Asplundh was ordered to pay $4,000.00 in penalties and $10,950.00 in attorney fees along with expenses in the amount of $737.01. From this adverse judgment, Asplundh appeals.

III.

LAW AND DISCUSSION

Standard of Review

The standard of review in a workers’ compensation hearing was set out in Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, pp. 7-8 (La.7/1/97), 696 So.2d 551, 556:

|4Factual findings in workers’ compensation cases are subject to the manifest error 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).

Occurrence of Accident While in the Course and Scope of Employment

Asplundh asserts that the WCJ committed error in finding that Sterling proved the occurrence of an accident while in the course and scope of his employment resulting in an injury to his back.

Louisiana Revised Statutes 23:1031 requires a workers’ compensation claimant to initially establish “personal injury by accident out of and in the course of his employment.” Bruno v. Harbert Interna tional, Inc., 593 So.2d 357, 360 (La.1992). Louisiana Revised Statutes 23:1021 defines an accident, for purposes of workers’ compensation:

Accident means an unexpected or un-forseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.

In Bryan v. Allstate Timber Co., 98-840, pp. 3-4 (La.App. 3 Cir. 12/16/98); 724 So.2d 853, 855, this court discussed the claimant’s burden of proving that an accident occurred:

To recover workers’ compensation benefits, a claimant must establish by a preponderance of the evidence that an accident occurred on the job site and that an injury was sustained. Garner v. Sheats & Frazier, 95-39 (La.App. 3 Cir. 7/5/95); 663 So.2d 57. 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. [Id.] at 60. The evidence is viewed in a light most favorable to the claimant. When there is proof of an accident and attendant disability, without an intervening cause, it is presumed that the accident caused the disability.

In the present case, Sterling presented the only testimony regarding the occurrence of an accident since there were no witnesses to the accident. At the time of the accident, Sterling was a sixty-three year old man who had been working as a laborer for Asplundh for many years. He testified that on the date of the accident, he hurt his back pulling tree brush up a hill. At the time of trial in August 2002, Sterling was sixty-six years old. Sterling testified that he did not tell his co-worker Alibie Tauzin about hurting his back until the evening because he did not think it was serious and thought the pain would go away. He went back to work the next day. However, Tauzin testified that Sterling never told him that he hurt his back. On September 10, 1999, two days after Sterling hurt his back, he did not go to work. Tauzin testified that he thought Sterling took off from work because of problems with his pre-existing hernia. In his deposition, Tauzin stated that Sterling “might have mentioned on the phone that he might need back surgery.”

| fiThe record reveals that Sterling went to the hospital on September 10, 1999, due to back pain that radiated down to his right leg. The record also reveals that Sterling had a hernia. However, Sterling testified that his hernia never stopped him from working. The testimony of other Asplundh employees supports this claim. He eventually had surgery to repair the hernia. Sterling also testified that the UMC gave him a “no work” slip which he brought to his supervisor, Venable. Ms. Joyce Prejean, the woman who lived with Sterling, accompanied him to Venable’s office and was with him when he delivered the no-work slip. Venable denies having any knowledge that Sterling stopped working due to an accident at work and injury to his back. Instead, Venable insists that Sterling was out of work due to problems associated with his hernia.

The WCJ found the testimony of Keith Lewis to be “significant” with respect to whether Sterling sustained an accident resulting in injury to his back while in the course and scope of his employment. Lewis, a general foreman for Asplundh who has worked for the company approximately nine years, testified that in early September 1999, he was told by Venable to put Sterling on his payroll. Sterling had not previously worked on Lewis’ crew. He further stated that he was told by Venable that Sterling had been hurt on the job in New Iberia, and the company wanted to continue paying him his salary; thus, the reason he was being put on Lewis’ payroll. Lewis found out during the first week that Sterling was on his payroll and that Sterling had hurt his back, although he did not hear about the injury to Sterling’s back directly from Venable or Sterling but from other workers. In February 2000, he was told to take Sterling off of his payroll. Lewis admitted that he did not witness Sterling’s accident because Sterling did not work on his crew. The reason Venable told Lewis to place Sterling on his payroll was because Lewis normally had a three |7man crew, but at the time only had two men, himself and another worker; thus, it would be easy to add Sterling to his payroll.

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. The evidence in the record contradicting Sterling’s testimony that an accident occurred while he was in the course and scope of his employment with Asplundh on September 8, 1999, includes the testimony of Venable, who stated that Sterling did not tell him about his back injury until February 2000. When Sterling began missing work in September, Venable thought that it,was because of his hernia and its eventual surgical repair. Venable further testified that after being told in February 2000 about Sterling’s back injury that occurred in September 1999, he went to Sterling’s home to have an accident report filled out. The accident report was then turned in to As-plundh’s insurer, Crawford. Although Sterling and his girlfriend testified that he gave Venable a “no work” slip due to his back injury, Venable denied ever receiving such a slip. Tauzin and Brad LeGros testified similarly.

Clearly, there are two permissible views of the evidence; that Asplundh knew that Sterling injured his back while on the job in September 1999, or that it did not find out until early February 2000. The standard by which we review lower court decisions demands great deference to the trier of fact’s findings, when, as in the present case, such findings are based on determinations regarding the credibility of witnesses. See Blackwell v. Kershenstine, 97-210 (La.App. 8 Cir. 2/27/97), 690 So.2d 247, writ denied, 97-0545 (La.3/14/97) 689 So.2d 1390. In her reasons for judgment, the WCJ stated that Lewis was a “significant” witness and that his testimony was |s“pivotaI.” It is apparent that the WCJ chose to believe the testimony of Lewis and Sterling over that of Venable, LeGros and Tauzin. In fact, the WCJ felt that she was being lied to by the latter three witnesses. We find that the record supports the conclusion that Sterling had an accident while in the course and scope of his employment with Asplundh. His medical records sufficiently corroborate that he injured his back on September 8, 1999, as a result of an on-the-job accident. Accordingly, the WCJ’s finding that Sterling sustained an accident resulting in a back injury is not erroneous and is affirmed.

Calculation of Wage Rate and Amount of SEB

Asplundh contends that the WCJ committed error in calculating Sterling’s SEB rate when she included in her calculation of his average weekly wage rate, ten days of paid vacation time as well as five days of paid holiday time. To support its argument, Asplundh relies on the amendment to La.R.S. 23:1021(10), which gives instructions on how an employee’s average weekly wage is to be determined, effective August 15, 1999, when calculating hourly wages. Louisiana Revised Statutes 23:1021(10)(f) states:

Income tax. In determination of “wages” and the average weekly wage at the time of the accident, no amount shall be included for any benefit or form of compensation which is not taxable to an employee for federal income tax purposes; however, any amount withheld by the employer to fund any nontaxable or tax-deferred benefit provided by the employer and which was elected by the employee in lieu of taxable earnings shall be included in the calculation of the employee’s wages and average weekly wage including but not limited to any amount withheld by the employer to fund any health insurance benefit provided by the employer and which was elected by the employee in lieu of taxable earnings shall be included in the calculation of the employee’s wage and average weekly wage.

|9Sterling argues that the amendment did not provide for the wholesale exclusion of the value of fringe benefits from the calculation of the average weekly wage rate.

In accordance with the provisions of La. R.S. 23:1021(10)(f), the issue with respect to the inclusion of paid holiday and vacation time in the calculation of a claimant’s average weekly wage rate is whether those forms of compensation are taxable or not. Asplundh asserts, -without citing any authority therefor, that Sterling’s paid holiday and vacation time is not taxable and, therefore, should not have been included in the calculation of his average weekly wage rate for purposes of determining the amount of SEBs to which he would be entitled. On the other hand, Sterling asserts just as strongly and also without citing any authority, that those fringe benefits are taxable and therefore the WCJ was correct to include them in her calculation of Sterling’s average weekly wage rate. There is no dispute between the parties that paid vacation and holidays are fringe benefits. Any fringe benefit that an employer provides is taxable and must be included in the recipient’s pay unless that fringe benefit is specifically excluded by the law. EmployeR’s Tax Guide To Fringe Benefits Pub. 15-B (Dept, of the Treasury, Internal Rev. Serv., Jan. 2003). Excluded fringe benefits include:

Accident and death benefits.
Achievement awards.
Archer medical savings accounts.
Athletic facilities.
De minimis (minimal benefits).
Dependent care assistance.
Educational assistance.
Employee discounts.
Employee stock options.
Group-term life insurance coverage.
Lodging on your business premises.
Meals.
Moving expense reimbursements.
No-additional-cost services.

_J¿¡¡Id., Section 2. Paid holiday and vacation fringe benefits are not the type of fringe benefits excluded from income taxation. Thus, on this issue we cannot say that the WCJ was incorrect in her determination that the calculation of Sterling’s average weekly wage rate-for determining the amount of SEBs to which he is entitled-should include his paid holiday and vacation time.

Penalties and Attorney Fees

The WCJ awarded Sterling penalties in the amount of $4,000.00 because Asplundh failed to pay Sterling’s medical bills and workers’ compensation benefits associated with the back injury he sustained as a result of his on-the-job accident. The WCJ also awarded attorney fees in the amount of $10,950.00. Louisiana Revised Statutes 23:1201 provides for the payment by the employer and/or its insurer of workers’ compensation benefits. In La.R.S. 23:1201(F) it provides in pertinent part:

Failure to provide payment in accordance with this Section shall result in the assessment of a penalty in an amount equal to twelve percent of any unpaid compensation or medical benefits or fifty dollars per calendar day, whichever is greater, for each day in which any and all compensation or medical benefits remain unpaid, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim.

Subparagraph (2) of La.R.S. 23:1201(F) states: “This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.” Asplundh argues that Sterling’s claim was reasonably controverted because he never told his supervisors about his accident or that he hurt his back while on the job. Venable testified that he assumed Sterling was having problems with his preexisting hernia condition. However, Lewis testified that he found out from other employees, about a week after Sterling’s Inaccident, that Sterling hurt his back pulling tree brush up a hill. Lewis also knew that Sterling hurt himself while working in New Iberia. Additionally, Sterling’s hospital records at UMC two days after the work accident show that he was seen at the hospital due to his back problems. The WCJ stated that she thought “someone was lying to [her], and [she did not] think it was Mr. Sterling.” In essence, she felt that Asplundh had knowledge of Sterling’s accident and his injury, but did not, for whatever reasons, want to pay him workers’ compensation benefits. Whether the WCJ finds that an employer reasonably controverts a claim for benefits is a question of fact. Lyons v. Bechtel Corporation and AIU, 00-0364 (La.App. 3 Cir. 12/27/00), 788 So.2d 34, writ denied, 787 So.2d 996 (La.3/23/01). We find no manifest error in the WCJ’s finding that Asplundh did not reasonably controvert Sterling’s claim. Therefore, we affirm the WCJ’s award of penalties and attorney fees.

IV.

CONCLUSION

For the reasons assigned, the judgment of the Office of Workers’ Compensation is affirmed. Costs of this appeal are assessed to Asplundh Tree Expert Company.

AFFIRMED.


author: | .COOKS, Judge.

text:
    Martin PETITJEAN, II v. W. PETITJEAN OPERATING CO.
    No. 03-256.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2003.

      Kenneth Privat, Privat & Regan, Crowley, LA, for Appellant, Martin Petitjean, II.
    Jeffrey Warrens, Johnson, Stiltner, & Rahman, Baton Rouge, LA, for Appellee, W. Petitjean Operating Co.
    Court composed of ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS, and BILLY H. EZELL, Judges.
   | .COOKS, Judge.

STATEMENT OF THE CASE

Appellant, Martin Petitjean II, an attorney, was employed as the manager of W. Petitjean Operating Company, a family partnership. Mr. Petitjean’s, duties included supervising two secretaries, preparing lease and eviction notices, approving lease agreements, transferring interests between the partners, signing checks, reading mail and reviewing all bank statements. He also inspected rental property to determine what work needed to be done. Although it was Mr. Petitjean’s responsibility to oversee the upkeep of the partnership property, the physical repair and maintenance work was contracted to Bill Lyons. Mr. Petitjean’s work load increased significantly due to the unexpected suicide, a month earlier, of one of his longtime secretaries.

On December 15, 2000, the day of the incident, Mr. Petitjean drove out to inspect certain rental properties and discovered one of Mr. Lyon’s employees cutting branches from old magnolia tree which he considered a “family treasure and not to be touched.” He became very angry and upset. He ran across the road and confronted the employee. He then returned to his office and began working on a spreadsheet. He noticed loss of vision in his left eye and numbness in his arm. He left the office and drove eight miles to his home. His companion drove him to the hospital in Crowley. Diagnostic tests determined Mr. Petitjean suffered a mild stroke. He filed a workers’ compensation claim for reimbursement of approximately $10,000 in medical expenses he incurred. The workers’ compensation judge denied the claim stating:

I am very sorry, but I’m going to have to rule against Mr. Petitjean. Based on the language of the statute 1021(7)(e) which speaks in terms of physical work stress or exertion. I do find that Mr. Petitjean was subject to work stress on the day of the incident, both the suicide of the secretary and the trimming of the tree combined together to result in an unusual degree of stress which lead to the incident. And I find that they were both related to the work regardless of Mr. Petitjean’s reason for being in the neighborhood....
However, the work stress has to be physical. I came across | ¡¡something very similar in the Tomas, T-o-m-a-s versus Conoco case. In that case like this one, I felt very clearly that the stress was work related; however, the statute limits recovery for these injuries to physical work stress only.... [Tjherefore I feel I am compelled to rule that there was no physical work stress. The work stress was emotional as opposed to physical. And therefore the claim must be denied.

For the reasons assigned below, we affirm the decision of the workers’ compensation judge.

LAW AND DISCUSSION

Louisiana Revised Statute 23:1021(7)(e) provides in relevant part:

Heart-related or perivascular injuries. A heart-related or perivascular injury, illness, or death shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence that:
(i) The physical work stress was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation, and
(ii) The physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of the heart-related or perivascular injury, illness, or death.

(Emphasis added.)

Mr. Petitjean contends the physical act of running across the road and the angry confrontation with Mr. Lyon’s employee is “extraordinary and unusual” physical work stress when compared with the average office manager and should qualify him for benefits.

In Hatcherson v. Diebold, Inc., 00-3263 (La.5/15/01), 784 So.2d 1284, the widow of a customer service manager was denied workers’ compensation death benefits when her husband suffered a pulmonary thromboembolism while engaged in the course and scope of his employment. The manager’s duties were administrative, not physical, in nature and involved supervising other employees. The Louisiana Supreme Court denied benefits, citing La. R.S. 23:1021(7)(e)(i) and (ii), and stated:

| ¿This statute is significant in that it changed the law regarding such injuries in three respects. Harold v. La Belle Maison Apartments, 94r-0889 (La.10/17/94), 643 So.2d 752. First, it imposes a heightened burden of proof— clear and convincing — which is an “intermediate” standard falling somewhere between the ordinary preponderance of the evidence civil standard and the beyond a reasonable doubt criminal standard. Black’s Law Dictionary 227 (5th ed. 1979). Second, it requires the physical work stress be compared to the stress experienced by the average employee in that occupation as opposed to the stress of every day life. Finally, “it heightens the required causal link between that work stress and the heart injury by requiring the physical work stress to be the predominant and major cause of the heart-related or perivascu-lar injury.” Harold, 94-0889 at p. 5, 643 So.2d at 755. Significantly, the statute restricts such compensable perivascular injuries to those arising out of physical, as opposed to mental, stress.

Id. at p. 4-5, at 1288.

In Tomas v. Conco Food Distrib., 97-426 (La.App. 3 Cir. 10/22/97), 702 So.2d 944, Mr. Tomas, Conco’s marketing director, suffered a stroke while attending a Conco executive meeting. He sought recovery under the Workers’ Compensation Act. The workers’ compensation judge denied benefits finding Mr. Tomas’s stroke resulted from extraordinary and unusual work related mental stress as opposed to physical stress and La.R.S. 23:1021(7)(e) limits recovery for injuries caused by physical stress only. Mr. Tomas appealed contending this provision violated the Louisiana State Constitution. This court affirmed the decision of the workers’ compensation judge and found La.R.S. 23:1021(7)(e) does not violate the Louisiana State Constitution, stating:

Prior to the 1989 amendments to La. R.S. 23:1021(7)(e), the Louisiana Workers’ Compensation Act recognized the compensability of perivascular or heart-related claims irrespective of the source of the job stress (i.e., physical, mental or emotional). See Reid v. Gamb, Inc., 509 So.2d 995 (La.1987). However, the 1989 amendments were designed to specifically overrule Reid and to require the employee to prove extraordinary physical, not mental or emotional, job stress. See Votano v. Tulane and Broad Exxon, Inc., 95-1064 (La.App. 4 Cir. 11/30/95), 667 So.2d 1117; and Debona v. Pawn, 94-430 (La.App. 3 Cir. 11/2/94), 649 So.2d 449, writ denied, 94-2878 (La.1/27/95), 650 So.2d 242.

Id. at pp. 8-9, at 948-49.

IfThe workers’ compensation judge found Mr. Petitjean experienced on-the-job stress triggered by his secretary’s suicide and the tree trimming incident. However, she characterized the source of his stress as purely mental in nature and, although, she found the job-related mental stress may very well have played a role in causing his eventual stroke, she found La.R.S. 23:1021(7)(e), as amended, limits recovery for such injuries to those caused by physical work stress.

On appeal, Mr. Petitjean does not attack the judge’s legal reasoning; nor does he question the constitutionality of the statute’s new physicality requirement. Instead, Mr. Petitjean insists the facts show he endured physical stress which resulted from his physical exertion in running across the road to confront the tree trimmer. However, the “clear and convincing” burden imposed by the statute required Mr. Petitjean to carry much more than he was apparently able to shoulder. In addition to establishing that the work stress was physical in origin, La.R.S. 23:1021(7)(e)(ii) requires Mr. Petitjean to show it was the “predominant and major cause of the heart-related or perivascular injury.” Even if Mr. Petitjean presented evidence sufficient to show the stroke he suffered was causally related to the physical exertion he engaged in prior to its onset, the record does not contain any evidence which a reasonable fact-finder could rely upon to find the physical stress he described was the “predominant and major cause” of his stroke as oppose to some other cause such as a preexisting condition or purely mental stress.

DECREE

Based on the foregoing review of the evidence, we affirm the decision of the workers’ compensation judge. All costs of this appeal are assessed to Mr. Petitjean.

AFFIRMED.


author: |,COOKS, Judge.

text:
    Travis R. McKEE v. Celeste Griffen McKEE.
    No. 03-254.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2003.
    Charles A. “Sam” Jones, III, DeRidder, LA, for Appellant, Scott Westerchil.
    Court composed of ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS, and BILLY H. EZELL, Judges.
   |,COOKS, Judge.

STATEMENT OF THE CASE

Attorney, Scott Westerchil, appeals from a Judgment of Contempt rendered against him by the Honorable Herman I. Stewart. The facts leading to the judgment are as follows. Mr. Westerchil was retained by Celeste Griffin McKee (now Elliot) to respond to a Modification of Custody petition filed by her ex-husband. Mr. Westerchil filed an Answer and Reconventional Demand on her behalf on March 20, 2001. Trial on the matter was set for July 19, 2001 and both parties, with counsel, made appearances. A stipulation was reached and judgment was rendered on July 19, 2001 and signed on March 14, 2002.

On July 29, 2002 Mr. McKee filed a rule against his ex-wife, Celeste Elliot, for failure to abide by the custody judgment. Service of process was made on Celeste Griffin McKee and a hearing was set for September 5, 2002. On August 8, 2002, Ms. Elliot spoke to Mr. Westerchil about representing her at the September 5, 2002 hearing. A fee was discussed but Ms. Elliot left Mr. Westerchil’s office without retaining him. Ms. Elliot called Mr. West-erchil on September 4, the day before the hearing, to ask if she was required to be in court the next day. Mr. Westerchil advised her to attend the hearing and reminded her she had not made any arrangements to retain him. Mr. Westerchil advised Ms. Elliot he would attempt to reach opposing counsel to inquire about a continuance. He was unable to reach opposing counsel. He called Ms. Elliot to inform her he was unable to reach opposing counsel and to inform her he had a trial in Vernon Parish and would be unable to attend the hearing. He again reminded her she had not retained him as counsel on this matter. Ms. Elliot appeared, unrepresented, in court on September 5, 2002 and informed the court that she did not know that Mr. Westerchil was not going to appear in court until the day before the hearing. The judge continued the case and ordered a rule to show cause |3why Mr. Westerchil should not be held in contempt of court for failure to appear in court. A hearing was held on September 28, 2002. Mr. Westerchil was the sole witness. The following exchange occurred between the trial judge and Mr. Wester-chil:

THE COURT:
You remained as attorney of record in the case, did you not?
MR. WESTERCHIL:
That’s correct. I did not file any motions to withdraw after the hearing set in June or July of 2001.
THE COURT:
And you had knowledge, you had actual knowledge of the hearing?
MR. WESTERCHIL:
I was informed on August 8th, when the client came in, that there was a hearing set for September 5th; that’s correct.
THE COURT:
You did not file a motion for a continuance, is that right?
MR. WESTERCHIL:
No, sir.
THE COURT:
I am sure—
MR. WESTERCHIL:
And if I can explain. The reason that I didn’t is because when the — when Ms. Elliot left the office on August 8th, she was fully advised that in order for me to engage my services to come and defend her rule, that it would be necessary for her to pay me in order to do so. She asked me if I would make payment arrangements with her, which I said certainly I would but I needed some money for court costs, number one, to file her rule to modify the custody, as well as for some money to pay as an initial down payment toward my fee in order for me to be there.
THE COURT:
|4I understand those things, Mr. West-erchil, having practiced law for some 30 years myself. But those things are matters between yourself and your client. This Court takes the position that as long as an attorney is attorney of record and takes no action to withdraw.as attorney of record and has actual knowledge of a hearing in the case and does not file either a motion to withdraw or a motion for continuance, that he is breaching an obligation to the Court. Although there are, perhaps, extenuating circumstances, the Court finds that you are in contempt of court for failure to appear on September 5, 2002, for not having filed a motion for continuance and not having filed a motion to withdraw.

The trial judge fined Mr. Westerchil $100.00 without .court costs or twenty-four hours in the Beauregard Parish Jail. Mr. Westerchil files this appeal. Two issues are presented for our review: whether an attorney, who has not been served with a subpoena, has a duty to appear in court or file a motion to withdraw in a case when judgment has been rendered in the matter for which he was retained and whether the attorney cited for contempt is entitled to a hearing before an impartial judge.' For the reasons assigned below, we reverse the decision of the trial judge.

LAW AND DISCUSSION

Contempt of court proceedings in civil cases are governed by La.Code Civ.P. art. 221, et seq. which defines contempt as “any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority.” The Code provides for two kinds of contempt, direct and constructive. Direct contempt of court is defined in La.Code Civ. P. art. 222 as “one committed in the immediate view and presence of the court and of which it has personal knowledge, or a contumacious failure to comply with a subpoena or summons, proof of service of which appears of record.” Constructive contempt is defined in La.Code Civ.P. art. 224 as “any contempt other than a direct one” and this article lists the following acts which constitute a constructive contempt of court:

(1) Wilful neglect or violation of duty by a clerk, sheriff, or other person elected, appointed, or employed to assist the court in the administration of justice;
Ik(2) Wilful disobedience of any lawful judgment, order, mandate, writ, or process of the court;....

While direct contempt may be tried summarily, constructive contempt must be tried on a rule to show cause and “before a judge other than the one toward whom the contumacious behavior was directed.” Kidd v. Caldwell, 371 So.2d 247, 256 (La.1979). The reason for this rule was stated by Justice Tate, citing Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974):

[W]here contemptuous conduct is of the sort likely to provoke a trial judge and embroil him in personal controversy with the defendant, and where summary punishment procedures are not used, the contempt trial should preferably be heard by another judge. Not only the possibility of actual bias on the part of the trial judge, but also the possibility of the appearance of bias, should be taken into account.

Id.

The burden of proof in a civil contempt proceeding is by a preponderance of the evidence and appellate review is the manifestly erroneous standard. Davis v. Harmony House Nursing Home, 35,080 (La.App. 2 Cir. 10/31/01), 800 So.2d 92, writ denied, 01-3162 (La.2/22/02), 810 So.2d 1143. The failure of an attorney to appear in court is considered a constructive rather than direct contempt and the attorney must be afforded a hearing before an impartial judge. Kidd, 371 So.2d 247; In re Merritt, 391 So.2d 440 (La.1980); See also State v. Minnieweather, 587 So.2d 1190 (La.App. 2 Cir.1991), where an attorney was found guilty of constructive contempt for failure to appear before a grand jury pursuant to a subpoena.

In Kidd, a heated exchange took place between the judge and the defense attorney in open court and later in chambers when the judge refused to allow the defense attorney to file motions prior to completing jury selection. The defense attorney, then, filed a motion to recuse the judge which was denied. When the judge recessed court for the morning, the defense attorney said “he saw little reason to continue with the trial” and left the courtroom. He failed to appear at the designated |fihour in the afternoon. The judge issued a summons for his appearance which he ignored. The trial judge found him guilty of two courts of direct contempt and imposed a $100.00 fine. The Louisiana Supreme Court affirmed one count of direct contempt. However, with regard to the failure of the attorney to appear in court, the court reversed, finding the failure of an attorney to appear in court fell within the constructive contempt statute stating:

Thus, a violation of an “order” or “mandate” of the court, proof of service of which did not appear in the record, by an attorney — a person employed to assist the court in the administration of justice — is clearly contemplated as a constructive contempt. This inclusion as a constructive contempt gives added weight to its implied exclusion as a direct contempt in the illustrative listing of the latter.

Id. at p. 255.

Because the court found the attorney’s actions fell within the constructive contempt provision he was entitled to a full hearing in front of an impartial judge. Of significance in Kidd, is the fact that the attorney ignored a summons to appear in court.

In Merritt, 391 So.2d 440, an attorney failed to appear in court on a writ of habeas corpus which the attorney filed on behalf of his client. The trial judge tried him summarily and found him guilty of direct contempt and sentenced him to pay a fine of $100.00 or twenty-four hours in the parish jail. The Louisiana Supreme Court found the failure of an attorney to appear in court falls within either “wilful neglect or violation of duty by a ... person ... employed to assist the court in the administration of justice” or “wilful disobedience of any lawful judgment, or mandate, writ, or process of court.” Id. at 443. Citing Kidd, the court held the attorney’s failure to appear is a constructive, not direct, contempt, and remanded for a full hearing in front of an impartial judge.

In the present case, since Mr. Wester-chil was not served with an “order, |7mandate, writ, or process of the court” which commanded his appearance on Ms. Elliot’s behalf, La.Code Civ.P. art. 224(2) does not apply. Ms. Elliot alone was served, presumably because the matter for which Mr. Westerchil was retained was disposed of. Mr. Westerchil draws our attention to La.Code Civ.P. art. 1313(A) which provides in relevant part:

A. Except as otherwise provided by law, every pleading subsequent to the original petition ... may be served as provided in this Article, may be served either by the sheriff or by:
(1) Mailing a copy thereof to the counsel of record ...

However an exception is provided to this service rule in La.Code Civ. P. art. 1314(2)(b) which provides in relevant part:

[Sjervice may not be made on the counsel of record after a final judgment terminating or disposing of all issues litigated has been rendered, the delays for appeal have lapsed, and no timely appeal has been taken.

After a final judgment is rendered and no appeal taken, a litigant may not assume a former attorney of record is the attorney on a new and separate cause of action.

The issue presented is whether Mr. Westerchil owed a duty to the court to appear at the hearing and whether he engaged in “[w]ilful neglect or violation” of that duty in violation of La.Code Civ.P. art. 224(1). The trial court imposed a duty on Mr. Westerchil to either file a formal motion to withdraw in the case or file a motion for a continuance. Absent a subpoena or other court order, we are aware of no law which imposes such a duty upon an attorney under the penalty of incurring a contempt of court judgment. While we are mindful of the trial judge’s interest in the orderly administration of his docket, we do not find Mr. Westerchil wilfully neglected his duty. Even assuming Mr. Westerchil should have, as a matter of good legal etiquette, filed a motion to withdraw, his failure to appear at the hearing because of |sa prior commitment cannot be defined as “wilful.” Mr. Westerchil fulfilled his obligation to Ms. Elliot upon resolution of the matter for which he was hired. After the final judgment, there were no other issues pending between the rendition of the July 19, 2001 judgment and the subsequent filing of the Rule for Contempt a year later in July 2002. Although domestic matters present a slightly different situation with regard to continuing jurisdiction by the court and open-ended judgments, this distinction alone is not enough to place a duty upon every attorney to formally withdraw from the case or nsk incurring a contempt citation. The result in this case may have been different had Mr. Westerchil been served with a subpoena to appear on Ms. Elliot’s behalf. However, he received no order to appear in court and was not retained by Ms. Elliot to represent her. We do not find he breached any obligation to the court. The judgment of the trial court finding Mr. Westerchil in contempt of court is reversed. The issue of whether Mr. Westerchil is entitled to have his ease heard by an impartial judge is rendered moot by our decision to reverse the judgment of contempt.

DECREE

Based on the foregoing, we reverse the decision of the trial court finding Mr. Westerchil in contempt of court for failure to appear at the September 5, 2002 hearing.

REVERSED.


author: h DECUIR, Judge.

text:
    Jimmie HAIRFORD and Wayne Hairford v. CENTURYTEL, INC. & Centurytel of Central Louisiana, L.L.C.
    No. 03-0328.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2003.

      J. Ransdell Keene, Keene Associates, Shreveport, LA, for Plaintiff/Appellee, Jimmie Hairford.
    P. Scott Wolleson, The Boles Law Firm, Monroe, LA, for Defendant/Appellant, Centurytel, Inc. Centurytel of Central Louisiana, L.L.C.
    Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   h DECUIR, Judge.

Jimmie Hairford filed suit against Cen-turyTel, Inc. and CenturyTel of Central Louisiana, L.L.C. seeking damages for mental anguish suffered as a result of a dispute over his telephone bill. At the conclusion of a bench trial, Hairford was awarded damages in the amount of $4,500.00. CenturyTel filed the instant appeal and, for the following reasons, we affirm.

CenturyTel provided telephone service to Hairford for many years. In 1991, Hairford authorized CenturyTel to draft his checking account with Cottonport Bank for payment of his monthly bill. In March of 2002, Hairford received a letter from CenturyTel addressed to “Connie Sheehan Hairford,” stating that her previous telephone number had been disconnected and that the remaining balance of $1,871.28 due on that account would be transferred to the active account bearing Jimmie Hair-ford’s telephone number. CenturyTel’s records indicated that Connie Sheehan had been an authorized user on Hairford’s account since 1998. The records also indicated that she was his wife.

Hairford was outraged by the contents of this letter and called CenturyTel immediately. He spoke to Melinda Campbell, who had written the letter, and informed her that he was not married to Connie Sheehan and he was not responsible for the overdue charges from her account. The testimony in the record reveals the conversation between Hairford and Campbell was heated, with Campbell asserting that Hairford had to somehow prove that he was not married and Hairford using inappropriate language. Subsequently, Hairford went to an attorney who wrote letters and made phone calls to Century-Tel on his behalf. Nonetheless, several weeks later, CenturyTel debited Hairford’s account for the full amount of the debt; the charges were immediately reversed when the bank intervened.

| sAt the time of trial, Hairford was a 75-year-old retired widower and a lifetime resident of rural Avoyelles Parish. He knew a woman named Connie Sheehan whom he sometimes employed to do odd jobs around his house and property. She was the daughter of some family friends, and he had known her since she was a child. At trial, Hairford acknowledged that Sheehan could have had access to his personal information such as his social security number, as he often left his wallet out on the table. At the time of this dispute, Sheehan had moved away from Avoyelles Parish and was not involved in this litigation.

Hairford testified that he was deeply upset about these events. He was embarrassed that he was thought to be married to a much younger woman. The overdue charges were from calls placed to a 900 number, which Hairford assumed were “dirty calls,” although the record shows the calls were placed to a psychic hotline. Hairford testified he received prank calls asking about his “new wife” and friends teased him about the situation. Two witnesses corroborated Hairford’s distress and mental anguish as a result of these events.

The record shows that Hairford’s telephone protests over payment of the bill, as well as the calls and letters of his attorney, were to no avail. CenturyTel insisted, even at the time of trial, that Hairford was responsible for providing evidence that he was not married to Sheehan or that he had been the victim of a fraud. Consequently, CenturyTel did not investigate the matter, ignored Hairford’s protests, and assumed the validity of the bill without question. The trial court found CenturyTel’s actions amounted to “negligent, improper and unreasonable tactics [which] were employed in the collection of a debt that was not owed by the plaintiff.” The record supports this finding.

In Cadle Co. v. Hobbs, 95-1639, pp. 4-5 (La.App. 3 Cir. 5/8/96), 673 So.2d 1363, 1365, this court explained:

Whether or not a debt is justly due, the debtor has a right to be free from unreasonable coercion and from unreasonable violations of his right to privacy in his personal affairs, and the debtor is entitled to general and special damages in tort for violations of his rights in these regards. Pack v. Wise, 155 So.2d 909 (La.App. 3 Cir.), writ refused, 245 La. 84, 157 So.2d 231 (1963). In Boudreaux v. Allstate Fin. Corp., 217 So.2d 439, 444 (La.App. 1 Cir.1968), the court stated:
Irrespective of whether the right to freedom from excessive unreasonable, deliberately induced emotional distress is predicated upon invasion of privacy or the closely allied tort of intentional infliction of emotional distress, see Wex S. Malone, [Efforts to Coerce Payment of Debt, 25 La.L.Rev. 341], is actionable under our laws when the creditors, in an attempt to collect a debt justly due, unreasonably coerces [sic] the debtor or seriously abridges [sic] the obligor’s right to privacy in his personal affairs. Tuyes v. Chambers, 144 La. 723, 81 So. 265 [(1919)]; Quina v. Roberts, La.App. [Orl.1944], 16 So.2d 558; Pack v. Wise, La.App., 155 So.2d 909.

Essentially, we are called upon in this case to determine if the balance between the creditor’s interest in using reasonable collection efforts and the debtor’s privacy and emotional interests has been upset. The pertinent jurisprudence states, “Resolution hinges upon when and if the conduct and communications of the creditor become unreasonable and intentionally coercive.” Ford Motor Credit Co. v. Diffey, 378 So.2d 1032, 1034-35 (La.App. 2 Cir.1979), writ denied, 381 So.2d 508 (La.1980). Louisiana law provides that “debt collection efforts, if extreme and outrageous, will support recovery for intentional infliction of emotional distress.” F. araist and T. Galligan, Louisiana Tort Law, §§ 2 — 6(e), pp. 36-37, n. 83 (1996).

Given the evidence in the record before us, and considering the particular facts of this case, such as the advanced age of Hairford and the fact that he was not the delinquent debtor, we find no manifest error in the conclusions reached by the trial judge. While some of the actions of Cen-turyTel may have been merely negligent, as |4the trial court found, it is clear the actions complained of, which caused Hair-ford’s distress, were improper and unreasonable, as the trial court also found, so as to be considered intentionally coercive. CenturyTel chose not to investigate Hair-ford’s complaints, threatened to discontinue Hairford’s telephone service, which had always been paid timely, and proceeded with drafting payment out of Hairford’s bank account. Additionally, CenturyTel chose not to verify or seek approval for the addition of Sheehan as an authorized user on Hairford’s account.

Considering the foregoing, the judgment of the trial court is affirmed. Costs of this appeal are assessed to CenturyTel.

AFFIRMED.


text:
    Hilda Burleigh LaSALLE v. Joseph Eldes LaSALLE.
    No. 03-293.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2003.

      Edward J. Milligan Jr., Attorney at Law, Lafayette, LA, for Defendant/Appellant, Joseph Eldes LaSalle.
    Albert Michael Karre’ Jr., Attorney at Law, Lafayette, LA, for Plaintiff/Appellee, Hilda Burleigh LaSalle.
    Court composed of ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS, and BILLY HOWARD EZELL, Judges.
   | THIBODEAUX, Judge.

Joseph Eldes LaSalle appeals the trial court’s judgment in favor of plaintiff, Hilda Burleigh LaSalle, for past due child support. Joseph asserted that Hilda’s cause of action, seeking payment of past due child support, had prescribed. The trial court, noting that the parties had never divorced, concluded that the action had not prescribed because prescription was suspended between the spouses during their marriage in accordance with La.Civ.Code art. 3469. We agree and affirm the trial court’s judgment.

I.

ISSUE

The issue in this case is whether an action seeking payment of past due child support has prescribed where the parents of a minor child, who is now a major, were separated but never divorced.

II.

FACTS

The present case seeking payment of past due child support arose as a result of a petition for divorce filed by Hilda on October 17, 2001. In connection with her divorce petition, Hilda sought enforcement of a prior child support judgment dated February 25,1986. In 1985, Joseph filed a petition for divorce against Hilda. Subsequently, on February 25, 1986, a judgment was entered awarding Hilda custody of her and Joseph’s minor child, Raymond La-Salle. Raymond was born on November 27, 1975. The judgment further ordered that Joseph pay Hilda $100.00 per month in child support retroactive to August 8, 1985. Joseph failed to pay the child support.

| ?Hilda sought payment of the past due child support Joseph owed. On the date of the divorce trial, Joseph failed to appear. There was no other action taken with respect to the petition for divorce filed by Joseph. Therefore, on January 13, 1992, his suit requesting a divorce from Hilda was abandoned. Thus, although Joseph and Hilda were physically separated from each other, they were still married. The parties did not reconcile, and the child support order was not modified or terminated. Joseph failed to pay any child support. Hilda claimed that she did not know Joseph’s whereabouts despite her efforts to locate him.

In the divorce petition filed by Hilda giving rise to her present request for payment of past due child support, Hilda requested child support for one hundred months beginning in August 1985, and ending in November 1993 when Raymond turned eighteen. In response to Hilda’s lawsuit, Joseph filed a peremptory exception of prescription. The trial court overruled Joseph’s exception and awarded Hilda judgment on the child support ar-rearage as well as attorney fees. It is from this judgment that Joseph appeals.

III.

LAW AND DISCUSSION

It is clear from the record that neither the February 25, 1986, nor the October 17, 2001, divorce actions filed by Joseph and Hilda, respectively, resulted in a judgment of divorce. Joseph’s action was dismissed as abandoned. Hilda’s action for divorce is pending. Joseph asserts that Hilda’s action for payment of child support arrear-age has prescribed since the original judgment was entered in 1986. To support his argument Joseph relies on La.Civ.Code art. 3497.1(1994) which provided that the prescriptive period for judgments for support and actions seeking payment of child support arrearages was five years. However, effective July 3, 1997, the | legislature increased the prescriptive period for seeking child support arrearages to ten years. La.Civ.Code art. 3501.1. Joseph asserts that whether the child support judgment of February 25, 1986, that Hilda seeks to enforce, falls under the prescriptive period of five years or the prescriptive period of ten years, is of no consequence. In either instance, it has prescribed.

Prescriptive periods are subject to suspension. Townsley v. Brierty, 97-601 (La.App. 3 Cir. 10/27/97), 702 So.2d 1073. In Labbe Service Garage, Inc. v. LBM Distributors, Inc., 94-1043, p. 10 (La.App. 3 Cir. 2/1/95), 650 So.2d 824, 829, we noted that “pleading prescription alone subjects the exceptor to proving, by a preponderance of the evidence, that the plaintiffs claim has prescribed. Additionally, if on the face of the petition it appears that prescription has run, the burden shifts to the plaintiff to prove an interruption or suspension of the prescriptive period. Younger v. Marshall Industries, Inc., 618 So.2d 866 (La.1993).” Louisiana Civil Code Article 3469 provides that as between spouses during marriage, prescription is suspended. In the present case, since Joseph and Hilda were never divorced, we conclude that Hilda’s action seeking enforcement of the 1986 child support judgment has not prescribed.

Hilda seeks payment of additional attorney fees to compensate her counsel for work done on the present appeal. However, she did not file an answer requesting such relief. Failure to file an answer pursuant to La.Code Civ.P. art. 2133 precludes this court from awarding additional attorney fees.

_yv.

CONCLUSION

For the above reasons, we affirm the judgment of the trial court. Costs of this appeal are assessed against appellant, Joseph Eldes LaSalle.

AFFIRMED.


author: JjDOUCET, Chief Judge.

text:
    Terry L. PIPER v. SHAKTI, INC.
    No. 02-1010.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2003.

      Terry L. Piper, # 309140, Pro Se, Alexandria, LA, for Plaintiff/Appellant.
    Shakti, Inc., d/b/a Quality Inn of Alexandria, Pro Se, Laurel, MS, for Defendant/Appellee.
    Court composed of NED E. DOUCET, JR., Chief Judge, BILLIE COLOMBARO WOODARD, and JIMMIE C. PETERS, Judges.
   JjDOUCET, Chief Judge.

Claimant, Terry L. Piper, appeals a judgment of an Office of Workers’ Compensation judge dismissing his suit against Defendant, Shakti, Inc., for Claimant’s failure to prosecute his claim. We reverse and set aside the judgment of the workers’ compensation judge and remand to the Office of Workers’ Compensation for further proceedings consistent with this opinion.

FACTS

Claimant, Terry L. Piper, alleges that he was injured in the course and scope of his employment with the Defendant on November 9, 1998. He further alleges that wage benefits were terminated or reduced on June 6, 2000. A Louisiana Department of Labor Workers’ Compensation form 1008 was timely filed March 7, 2001. At that time Claimant was represented by counsel. Following Defendant’s failure to attend a mediation conference on June 18, 2001, a preliminary default was granted in Claimant’s favor on August 24, 2001. A confirmation hearing was set for September 17, 2001. Sometime between August 24, 2001, and September 17, 2001, Claimant was incarcerated and the confirmation hearing was upset. On January 9, 2002, Claimant’s counsel filed a motion to withdraw, leaving Claimant unrepresented. In his letter of resignation sent to Claimant, counsel informed Claimant of a pending telephone conference in the workers’ compensation action which was scheduled for January 16, 2002, at 1:30 p.m. Because of the short notice and his incarceration, Claimant was unable to arrange to participate in the telephone conference. We note, there is no evidence in the record that either Claimant or counsel received proper notice of the telephone conference.

On January 17, 2002, Claimant’s suit was dismissed for his failure to participate in the telephone status conference. The record reflects that Claimant filed a pro se “Motion For Reinstatement of Action” on February 26, 2002. Although the record does not show the disposition of this motion, the workers’ compensation judge did issue a “Writ of Habeas Corpus Ad Testifi-cation” to Warden Kelly Ward, of the David Wade Correctional Center, on February 26, 2002, ordering that the Claimant be produced at the Alexandria office of the Office of Workers’ Compensation on August 29, 2002, for a hearing on the matter.

The next significant entry in the record is the Office of Workers’ Compensation (OWC) judge’s “Order of Dismissal” rendered July 8, 2002. Said order was based upon Claimant’s failure to attend or request a continuance of a pretrial conference scheduled for July 1, 2002. The order of dismissal referenced OWC Hearing Rule 5705(A)(4) as authority. On July 18, 2002, a “Motion to Reinstate Claim” was filed by Claimant explaining that due to his incarceration, he could not appear without an order from the OWC. That same day the OWC judge issued an order denying Claimant’s motion to reinstate his suit, based upon Claimant’s failure to participate in the telephone status conference of January 16, 2002, or the “telephone pretrial conference” (emphasis ours) of July 1, 2002. We note that the order of dismissal of July 18, 2002, states Claimant failed to “attend” the July 1, 2002, pretrial conference.

It is from the OWC judge’s order refusing to reinstate Claimant’s suit that Claimant appeals.

LAW AND DISCUSSION

There are two aspects of this case which are troubling. First, neither the body of the record nor the minute entries indicate that proper notice was served on | ..¡Claimant or his counsel for either the telephone conference scheduled for January 16, 2002, or the hearing scheduled for August 29, 2002.

Second, the OWC judge stated he dismissed Claimant’s action in accordance with an OWC Hearing Rule. OWC Hearing Rules form part of the Louisiana Administrative Procedure Act. OWC Hearing Rule 5705 is entitled “Abandonment” and states, in pertinent part, as follows:

A. A claim may be dismissed by an ex parte order of the judge for lack of prosecution for the following reasons:
(4) Where a party fails to appear for a properly noticed conference or trial.
C. Dismissal under this Rule shall be without prejudice. Any order of dismissal shall allow for reinstatement of the action within thirty (80) days for good cause shown.

This provision appears to be in conflict with La.R.S. 23:1209(D) which states:

When a petition for compensation has been initiated as provided in Section 1310.3, unless the claimant shall in good faith request a hearing and final determination thereon within five years from the date the petition is initiated, same shall be barred as the basis of any claim for compensation under the Workers’ Compensation Act and shall be dismissed by the office for want of prosecution, which action shall operate as a final adjudication of the right to claim compensation thereunder.

The pertinent section of the statute referenced above, La.R.S. 23:1310.3(B)(2)(Emphasis added), provides as follows:

If any party fails to appear at a mediation conference after proper notice, the workers’ compensation judge, upon report from the workers’ compensation mediator, may fíne the delinquent party an amount not to exceed five hundred dollars, which shall be payable to the Office of Workers’ Compensation Administrative Fund. In addition, the workers’ compensation judge may assess against the party failing to attend costs hand reasonable attorney fees incurred by any other party in connection with the conference. If the plaintiff fails to appear after proper notice, the workers’ compensation judge may dismiss the plaintiffs case without prejudice. The penalties provided for in this Subsection shall be assessed by the workers’ compensation judge only after a contradictory hearing which shall be held prior to the hearing on the merits of the dispute.

The following is well settled:

In determining the applicability of laws, the more specific governs over the more general. In the Interest of A.C., 93-1125 (La.1/27/94), 643 So.2d 719, 730, cert. denied, 515 U.S. 1128, 115 S.Ct. 2291, 132 L.Ed.2d 292 (1995). With regard to administrative agencies, the more specific laws are those which govern the agency. These specific laws govern over the more general laws of the APA [Administrative Procedures Act] or of the Louisiana Code of Civil Procedure. See Corbello v. Sutton, 446 So.2d 301, 303 (La.1984); State, Louisiana Riverboat Gaming Commission v. Louisiana State Police Riverboat Gaming Enforcement Division, 95-2355 (La. App. 1 Cir. 8/21/96), 694 So.2d 316, 321.

Victorian v. Stalder, 99-2260, p. 6 (La. App. 1 Cir. 7/14/00), 770 So.2d 382, 389.

Last fall, this court dealt with a similar problem in Bellard v. Seale Guest House, 02-355, pp. 3-6 (La.App. 3 Cir. 10/30/02), 829 So.2d 1080, 1082-84, stating the following:

In the present case, the record suggests that the action was dismissed in May of 1998 for failure to attend a pretrial conference. The authorization for such a dismissal is found in the Office Workers’ Compensation’s Hearing Rule 5705[A](4), which permits the workers’ compensation judge to dismiss a claim ex parte for lack of prosecution “[w]here a party fails to appear for a properly noticed conference or trial.” (Emphasis added.) Hearing Rule 5705 further provides that the order of dismissal shall be without prejudice and shall allow for reinstatement within thirty days for good cause shown. Mr. Bellard filed for reinstatement well beyond thirty days, but in his “Motion to Reinstate” he alleged that he never received notice of the conference. From the record before us, we are unable to determine if the conference was “properly noticed,” as required by Hearing Rule 5705.
Mr. Bellard also argues that his claim should not have been dismissed as abandoned because three years had not elapsed without any 1 Rparty taking a step in the prosecution of the claim, as required by La.Code Civ.P. art. 561. More specific to workers’ compensation claims, however, is La.R.S. 23:1209(D) (emphasis added), which provides:
When a petition for compensation has been initiated as provided in Section 1310.3, unless the claimant shall in good faith request a hearing and final determination thereon within five years from the date the petition is initiated, same shall be barred as the basis of any claim for compensation under the Workers’ Compensation Act and shall be dismissed by the office for want of prosecution, which action shall operate as a final adjudication of the right to claim compensation thereunder.
In Clark, 809 So.2d 514, the fourth circuit was poised to decide whether Hearing Rule 5705[A](4), then identified as Hearing Officer Rule 2139(4), was in conflict with La.R.S. 23:1209(D) when presented with these facts. The claimant in Clark was injured on May 22, 1991. Notwithstanding his receipt of indemnity benefits through July 12, 1993, he filed a disputed claim in the Office of Workers’ Compensation in July of 1992. On October 29, 1992, that claim was “administratively closed” or “dismissed” for reasons not readily apparent from the record. The claimant filed a second disputed claim on August 10, 1994, some thirteen months after the receipt of his last payment of benefits and after he had been released from prison. The supreme court would ultimately reject the claimant’s argument that prescription was suspended during his incarceration, but the court remanded the case to consider whether prescription had been interrupted by his 1992 petition. Clark v. Mrs. Fields Cookies, 97-0397 (La. 1/21/98); 707 So.2d 17. In the meantime, the claimant had filed for reinstatement of his 1992 claim on July 15, 1995, two years and nine months after its dismissal, arguing that a workers’ compensation claim could not be dismissed for failure to prosecute until five years had elapsed under La.R.S. 23:1209(D). The workers’ compensation judge agreed, ruling that La.R.S. 23:1209(D) superseded Hearing Rule 5705[A](4). Because five years had not elapsed between the 1992 dismissal and the filing of the motion to reinstate in 1995, the workers’ compensation judge found that the claim had not been abandoned, despite' the earlier “dismissal,” and that the second petition of 1994 related back to the original petition of 1992.
On appeal, the fourth circuit did not reach the correctness of that ruling because the parties disputed whether the 1992 dismissal was based upon the failure to attend a pre-trial conference per Rule 5705[A](4) or upon prematurity, as the claimant was receiving some benefits when the claim was filed. After concluding that this factual dispute could be not resolved without a judgment of dismissal, written reasons, or a docket entry indicating the reason for the dismissal, the | ¿fourth circuit remanded the case to establish a complete record for appeal.
The parties in the present case agree that Mr. Bellard’s claim was dismissed in May of 1998 for failure to attend a pre-trial conference, but we are unable to determine from the record whether that conference was “properly noticed,” as required by Hearing Rule 5705[A](4). Additionally, the record does not contain the petition filed in 1997. Hence, we are unable to identify the original Defendants) or to determine whether the petitions naming the later-added Defendants “relate back” to the original filing under La.Code Civ.P. art. 1153, should that issue arise. Accordingly, we will remand the case for clarification of the record and for consideration of the concerns expressed herein and in Clark, 809 So.2d 514.

While this case is factually different, it does raise some of the same issues raised in Bellard. As in Bellard, there is nothing in the record to show that Claimant, Terry Piper, received proper notice of the July 1, 2002, hearing. Thus we, like our brethren in the Fourth Circuit and the panel of this court in Bellard, do not have to reach the issue of whether R.S. 23:1209(D) super-cedes OWC Rule 5705(A)(4).

Accordingly, for the reasons stated above we reverse the judgment dismissing Claimant’s suit. We remand the case to the Office of Workers’ Compensation for further proceedings consistent with this opinion.

REVERSED AND REMANDED.