author: | .GUIDRY, J.

text:
    Judy CANNEDY v. Rulon YARBOROUGH.
    No. 2002 CA 0728.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.

      Michael Hebert, Baton Rouge, Counsel for Plaintiff/Appellant Judy Cannedy.
    Frank Whiteley, Denis P. Juge, Metair-ie, Counsel for Defendant/Appellee Rulon Yarborough.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   | .GUIDRY, J.

In this workers’ compensation case, Judy Cannedy appeals the Office of Workers’ Compensation’s (OWC) judgment in favor of Rulon Yarborough. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Judy Cannedy worked as a receptionist for Rulon Yarborough, a State Farm agent, for approximately nine years. On March 1, 1999, while working for Mr. Yar-borough, Ms. Cannedy suffered an on-the-job injury when she fell from her chair. Ms. Cannedy received compensation from March 1, 1999, until February 28, 2000. However, benefits were terminated when Ms. Cannedy’s treating physicians released her to return to her previous employment or other light duty/sedentary work. Thereafter, while stepping out into her yard in May of 2000, Ms. Cannedy fell, injuring her left ankle. Ms. Cannedy sought payment of medical expenses related to the ankle injury from the workers’ compensation insurer, but the treatment was denied as unrelated to the prior on-the-job injury.

On September 7, 2000, Ms. Cannedy filed a disputed claim form with the OWC, seeking supplemental earnings benefits (SEB), payment of medical benefits in relation to the ankle injury, and attorney’s fees. A trial was held on October 29, 2001. In a judgment signed on November 14, 2001, the workers’ compensation judge found that Ms. Cannedy failed to prove that she was disabled after February 28, 2000, and denied her claim for indemnity benefits after that date. Additionally, the workers’ compensation judge found that Ms. Cannedy failed to prove that the ankle injury was related to the March 1, 1999 accident, and denied her claim for medical benefits for the ankle injury. Finally, the judge denied Ms. Cannedy’s claim for attorney’s fees.

1,ASSIGNMENTS OF ERROR

Ms. Cannedy now appeals from this judgment and asserts the following assignments of error:

1. ■ The workers’ compensation judge erred in finding the claimant was not entitled to SEB.
2. The workers’ compensation judge erred in allowing the video tape made by the private investigator into evidence.
3. The workers’ compensation judge erred in ruling that the ankle injury was not related to the on-the-job injury.
4. The workers’ compensation judge erred in ruling that Ms. Cannedy’s attorney was not entitled to attorney’s fees.
5. The workers’ compensation judge erred in ruling that each party should bear its own costs.

DISCUSSION

Under the provisions of La. R.S. 23:1221(3)(a), an employee is entitled to receive SEB if she sustains a work-related injury that results in her inability to earn ninety percent or more of her average pre-injury wage. Initially, the claimant bears the burden on proving, by a preponderance of the evidence, that the injury resulted in her inability to earn that amount under the facts and circumstances of the individual case. Seal v. Gaylord Container Corporation, 97-0688, pp. 7-8 (La.12/02/97), 704 So.2d 1161, 1166. In determining whether the claimant has established a prima facie case, the trial court may and should take into account all those factors that might bear on an employee’s ability to earn a wage. Daigle v. Sherwin-Williams Company, 545 So.2d 1005, 1007 (La.1989). However, a claimant is not entitled to SEB when her inability to earn wages equal to ninety percent of her pre-injury wages is due to circumstances other than her work related |4injury. Smith v. J.E Merit Constructors, Inc., 01-2824, p. 6 (La.App. 1st Cir.11/08/02), 835 So.2d 749, 754.

Whether a claimant’s injury prevents her from obtaining employment earning ninety percent of her pre-injury wages is a question of fact. Thus, the appellate court may not set aside the workers’ compensation judge’s findings in this regard absent a finding of manifest error or unless the findings are clearly wrong. Smith, 01-2824 at 6, 835 So.2d at 754. If the workers’ compensation judge’s findings are reasonable in fight of the record reviewed in its entirety, an appellate court may not reverse even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Furthermore, when factual findings are based on the credibility of witnesses, the fact finder’s decision to credit a witness’s testimony must be given great deference by the appellate court. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

After a thorough review of the record, we find no manifest error in the workers’ compensation judge’s determination that Ms. Cannedy was not entitled to SEB because she failed to prove that she was disabled after February 28, 2000. Both Dr. Bryan Griffith and Dr. Sandra Weitz, who treated Ms. Cannedy following her on-the-job injury, stated that Ms. Can-nedy had reached maximum medical improvement as of February 2000, and that she had been released to her previous job or other sedentary/fight duty clerical/receptionist work. Despite this medical evidence, Ms. Cannedy maintains that she cannot work, no matter what restrictions are in place, due to her pain, and therefore she has not attempted to seek employment, other than at her previous job, which was no longer available. However, these subjective complaints have no objective basis in the medical findings presented at trial. A claimant’s testimony that she is no longer able to return to her pre-injury employment, without more, is insufficient to prove entitlement to SEB. Rapp v. City of New Orleans, 98-1714-98-1730, p. 19 (La.App. | 54th Cir.12/29/99), 750 So.2d 1130, 1143, writ denied, 00-0353 (La.4/7/00), 759 So.2d 761.

In reaching its determination as to Ms. Cannedy’s entitlement to benefits, the workers’ compensation judge also questioned Ms. Cannedy’s credibility, based on her testimony and videotaped surveillance that was admitted into evidence at trial. Ms. Cannedy contends on appeal that the videotape should not have been admitted into evidence because it was not impeachment evidence. However, we find this argument to be without merit. On cross-examination, the attorney for Rulon Yar-borough specifically asked Ms. Cannedy: “Have you ever changed the way you physically walk when you attend a physician’s appointment in order to convince them that you are more injured than you are.” In response to this question, Ms. Cannedy stated: “No sir. I walk bad all the time.” When asked to clarify how she walks, Ms. Cannedy stated that she walks “slow.” The videotape, taken a day prior to and the day of a doctor’s appointment, showed Ms. Cannedy while walking at several locations, and depicted an altered pattern in her appearance and walk when attending her doctor’s appointment. Therefore, we find that the workers’ compensation judge did not abuse its discretion in allowing the videotape to be presented at trial as impeachment evidence.

However, even without the videotape, we find that the testimony of Dr. Weitz called into question Ms. Cannedy’s credibility. In her deposition, Dr. Weitz expressed concern over Ms. Cannedy’s exaggeration of her symptoms. In particular, Dr. Weitz stated that during an office visit, Ms. Cannedy appeared physically run down and described her pain as constant shooting pain. However, Dr. Weitz made a note that she thought this was interesting given that she had seen 1 fiMs. Cannedy walking out of a clinic the week previously, where Ms. Cannedy was dressed up and chatting lively on the phone while exiting the building.

In addition to the lack of medical evidence to support her disability claim, Ms. Cannedy also possesses substantial experience in the insurance industry, as well as experience in the clerical/receptionist field. Prior to her job with Rulon Yarborough, Ms. Cannedy worked as a receptionist for another State Farm agent as well as for a construction company. Additionally, Ms. Cannedy attended two years of college, where she studied Business Administration and Marketing. According to the testimony of the vocational rehabilitation expert called by Rulon Yarborough, there were many available clerical/receptionist jobs in the area if Ms. Cannedy chose to seek employment. Therefore, based on all the facts and circumstances as contained in the record, we find that the workers’ compensation judge was not manifestly erroneous in concluding that Ms. Cannedy failed to prove that she was disabled after February 28, 2000, and therefore not entitled to SEB.

In regard to Ms. Cannedy’s ankle injury, we also find from our review of the record no error in the workers’ compensation judge’s determination that the ankle injury was not related to the on-the-job injury. While Ms. Cannedy claims that her leg gave way due to radiating pain associated with her back injury, the medical records from Summit Hospital and Acadian Ambulance indicate that Ms. Can-nedy “[lost] footing [without] pre fall complaints” or that she “stepped off porch [and] slipped.” Neither medical record mentions anything about her leg giving way due to her back injury. The only supportive evidence is contained in a letter from Dr. Griffith, whereby he relates the ankle injury to the on-the-job injury. However, Dr. Griffith indicated in his deposition testimony that he based his determination on the history of the accident as related to him by Ms. Cannedy, not on objective findings.

|7In contrast, Dr. Weitz stated that from her records, Ms. Cannedy had no objective evidence of weakness and that she does not believe there was enough nerve root compression on the right side to actually make Ms. Cannedy’s leg give way. However, she noted it was impossible to say if the ankle problem was related to the back injury. In light of the medical evidence contained in the record, and the workers’ compensation judge’s credibility determination regarding Ms. Cannedy, we cannot find that the judge erred in denying Ms. Cannedy’s claim for medical benefits related to the ankle injury.

Having found no error in the workers’ compensation judge’s determinations as to Ms. Cannedy’s claims for SEB and medical benefits related to her ankle injury, we also find no error in the judge’s allocation of costs or its failure to assess attorney’s fees against Rulon Yarborough.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the OWC. All costs of this appeal are to be borne by the appellant, Judy Cannedy.

AFFIRMED.

      . The surveillance videotape was not listed on the pre-trial order or statement of evidence as an exhibit to be presented at trial. However, the rules governing proceedings in the OWC state that "[ejxhibits to be used for impeachment or rebuttal need not be included on the list. Impeachment evidence shall include, but not be limited to, witnesses, documents, photographs, or films.” LAC 40:6003.


source: Caselaw Access Project

author: [2PETTIGREW, J.

license: Public Domain

text:
    A & B BOLT AND SUPPLY INC. v. STANDARD OFFSHORE SERVICES, INC. and Cal Dive International, Inc.
    No. 2002 CA 1823.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.
    Barry J. Sallinger, Lafayette, for Plaintiff-Appellant A & B Bolt and Supply, Inc.
    Daniel A. Cavell, Thibodaux, for Defendant-Appellee Hibernia National Bank as Garnishee.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   [2PETTIGREW, J.

In this case, A & B Bolt and Supply, Inc. (“A & B Bolt”) appeals from the trial court’s denial of its Rule for Judgment Pro Confesso in a garnishment proceeding filed against Hibernia National Bank (“Hibernia”) as garnishee, relative to a judgment obtained by A & B Bolt against Standard Offshore Services, Inc. (“Standard”). For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On October 24, 2001, A & B Bolt obtained a judgment against Standard in the amount of $28,736.46, together with legal interest from the date due until paid and attorney fees in the amount of $1,500.00. Thereafter, on January 11, 2002, A & B Bolt instituted a garnishment proceeding against Hibernia, including a statement of sums due and interrogatories. Hibernia answered the garnishment interrogatories, indicating Standard did have account number 882141551 with a balance of $8,000.00 in its institution. Hibernia claimed, however, it was the holder of a promissory note made by Standard that was in default pursuant to the terms of the note and Louisiana law, including La. R.S. 6:316 and La. Civ.Code art. 3157. Hibernia maintained it “holds and held prior to service of the garnishment interrogatories, rights of pledge, compensation and offset against all funds on deposit in said account to secure note.” Accordingly, Hibernia asserted, no funds existed in Standard’s account for the benefit of A & B Bolt.

In response thereto, A & B Bolt filed a Rule for Judgment Pro Confesso, which was set for hearing on May 28, 2002. Counsel for A & B Bolt and Hibernia presented the court with argument, and Hibernia introduced into evidence a copy of the April 14, 2000 promissory note and commercial security agreement referred to in its answers to the garnishment interrogatories. On May 29, 2002, the court rendered judgment in favor of Hibernia, dismissing the Rule for Judgment Pro Confesso at A & B Bolt’s cost. It is from | ¡¡this judgment that A & B Bolt has appealed, assigning the following specifications of error:

1. The trial court erred in not granting A & B the garnishment proceeds in the amount of $8,000.00 held in Account Number 882141551 of Hibernia in the name of Standard.
2. The trial court erred in concluding that the Commercial Security Agreement signed by Standard in favor of Hibernia, specifically, Deposit Accounts, Page 2, was the controlling document in determining the proper party entitled to the garnishment proceeds in Account Number 882141551 in the name of Standard.
3. The trial court erred in concluding that Hibernia had placed Standard in default of the Commercial Security Agreement.

Thus, the central issue to be decided by this court is whether Hibernia acquired a statutory pledge pursuant to La. R.S. 6:316 such that it would be entitled to apply the funds in account number 882141551 to offset Standard’s indebtedness owed to Hibernia by virtue of the promissory note dated April 14, 2000, and the accompanying commercial security agreement.

DISCUSSION

On appeal, A & B Bolt argues there is no evidence Standard was placed in default by Hibernia prior to the service of the garnishment interrogatories. Noting that pursuant to La.Code Civ. P. art. 2411, the seizure effected by a garnishment proceeding becomes effective upon service of the garnishment proceedings, A & B Bolt contends its claim to the funds in Standard’s account at Hibernia outranks Hibernia’s claim. A & B Bolt maintains that La. R.S. 6:316, the statute relied on by Hibernia in asserting a privilege to the funds in Standard’s account, “merely creates the right” but “does not make it a self-enforcing privilege.” As such, A & B Bolt argues, in order for Hibernia’s privilege to be “perfected,” Standard must be placed in default and given notice of same.

In response, Hibernia contends La. R.S. 6:316 creates a “statutory pledge which gives a bank the right to offset the bank account when there is a default, which will apply to any and all funds on deposit to fulfill that obligation.” With regard to A & B Bolt’s ^argument that Standard was not in default on the promissory note at the time the garnishment proceedings were served on Hibernia, Hibernia asserts that pursuant to the terms of the commercial security agreement, Standard was in default on the promissory note by virtue of its indebtedness to A & B Bolt.

As correctly noted by Hibernia in brief, La. R.S. 6:316 creates a statutory pledge that gives a bank the right, upon a depositor’s default on an obligation owed to the bank, to apply any and all funds on deposit toward payment of that obligation. Mahler v. First National Bank of Houma, 93-0619, p. 3 (La.App. 1 Cir. 3/11/94), 634 So.2d 22, 24. This statute provides, in pertinent part, as follows:

A. Notwithstanding the provisions of Civil Code Articles 1893 et seq., compensation takes place by operation of law between funds held on deposit with any bank domiciled or having a branch office in this state and any loan, extension of credit, or other obligation incurred by the depositor in favor of the bank. This compensation shall apply to those funds on deposit which the depositor has the right to withdraw on his request or endorsement alone, except funds deposited in an Individual Retirement Account or other type of tax-deferred account. The funds to which this compensation applies shall be deemed to be pledged by the depositor in favor of the depository bank.
C. In the event that the depositor should default under any loan, extension of credit or other direct or indirect obligation of any nature and kind whatsoever in favor of the depository bank, the bank shall have the right to apply any and all funds that the depositor then has on deposit with the bank or on which the bank has taken a security interest under Chapter 9 of the Louisiana Commercial Laws (R.S. 10:9-101, et seq.) towards the payment of the depositor’s indebtedness or obligations, whether such payment satisfies the indebtedness or obligations in whole or in part. The exercise of the bank’s remedies under this Subsection shall not affect any other rights and remedies available to the bank following the depositor’s default.
D. The bank shall notify the depositor in writing within two business days following the exercise of the bank’s remedies under Subsection C of this Section. Such notice shall be forwarded by registered or certified mail to the depositor’s most current address reflected in the bank’s records. In the event that the bank mails such a notice to the depositor within the above time period, the bank shall have no liability to the depositor or to any other person or persons as a result of the bank’s dishonor of checks or drafts drawn on the depositor’s accounts with the bank. [Emphasis added.]

Although the trial court did not offer any reasons for judgment, the court did note in its May 29, 2002 judgment that it found the commercial security agreement to be ^controlling, specifically referring to a section entitled “DEPOSIT ACCOUNTS” located on page two of the agreement. A review of the agreement reveals the following language:

DEPOSIT ACCOUNTS. As collateral security for repayment of the Indebtedness and all renewals and extensions, as well as to secure any and all other loans, notes, indebtedness and obligations that Borrower or Grantor (or any of them) may now and in the future owe to Lender or incur in Lender’s favor, ... Grant- or is granting Lender a continuing security interest in any and all funds that Grantor may now and in the future have on deposit with Lender .... Grantor further agrees that Lender may at any time apply any funds that Grantor may have on deposit with Lender ... against the unpaid balance of Borrower’s Note and any and all other present and future indebtedness and obligations that Borrower or Grant- or (or any of them) may then owe to Lender, in principal, interest, fees, costs, expenses, and attorneys’ fees. [Emphasis added.]

Moreover, we note the following language found in the commercial security agreement concerning what constitutes a “default” under the agreement:

EVENTS OF DEFAULT. The following actions or inactions or both shall constitute Events of Default under this Agreement:
Default in Favor of Third Parties. Should Borrower, Grantor, or any Guarantor default under any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that may materially affect any of Grantor’s property, or Borrower’s or Grantor’s or any Guarantor’s ability to perform their respective obligations under this Agreement, or any Related Document, or pertaining to the Indebtedness. [Emphasis added.]

Based on our review of the language in the commercial security agreement and promissory note at issue, we conclude Standard had defaulted on the promissory note, thereby entitling Hibernia to utilize the provisions of La. R.S. 6:316 and apply the funds in account number 882141551 towards the payment of Standard’s indebtedness.

With regard to A & B Bolt’s contention that Hibernia was required to not only place Standard in default, but also to offer notice of same to Standard in order for the bank’s rights under La. R.S. 6:316 to be perfected, we find no merit to this argument. As is clear from the language of La. R.S. 6:316, all that is required to trigger the provisions of this statute is that the “depositor should default under any loan ... in favor of the depository bank.” La. R.S. 6:316(C). Moreover, the notice requirement found in La. R.S. 6:316(D) does not, in our opinion, operate to nullify the depository bank’s right to the statutory sefofffi remedy if such notice is not provided. Rather, we conclude, the notice requirement is designed solely to absolve the depository bank of all liability to depositors or any other person as a result of checks or drafts drawn on depositor’s accounts if notice is mailed by registered or certified mail within the prescribed time. See Guillot v. Union Bank, 617 So.2d 1343, 1346-1347 (La.App. 3 Cir.1993).

As further support for our conclusion that Hibernia was entitled to the statutory setoff remedy set forth in La. R.S. 6:316, we are mindful of La.Code Civ. P. art. 2414, which provides, in pertinent part, as follows:

The clerk shall cause written notice of the filing of the garnishee’s answer to be served promptly upon the seizing creditor in the manner provided by Article 1314.
Unless the creditor files a contradictory motion traversing the answer of the garnishee within fifteen days after service upon him of the notice of the filing of the garnishee’s answer, any property of the judgment debtor in the possession of the garnishee and any indebtedness to the judgment debtor which the garnishee has not admitted holding or owing shall be released from seizure. [Emphasis added.]

According to the record herein, Hibernia filed its answers to A & B Bolt’s interrogatories on February 11, 2002, admitting it had in its possession Standard’s account, bearing account number 882141651, with a balance of $8,000.00. Hibernia maintained, however, it had a right of pledge against the funds pursuant to La. R.S. 6:316. A & B Bolt did not traverse these answers. Thus, even if A & B Bolt may have had a valid adverse claim to the funds in Standard’s account at Hibernia, this claim was effectively waived by A & B Bolt’s failure to traverse Hibernia’s answers. By operation of law, the seizure as it relates to these funds has become ipso facto released. See Kugle v. Hennessy, 29,235, p. 5 (La.App. 2 Cir. 2/28/97), 691 So.2d 236, 239, writ denied, 97-1098 (La.6/13/97), 695 So.2d 979; Allied Finance Company v. Rogers, 215 So.2d 400, 401 (La.App. 2 Cir.1968).

^CONCLUSION

For the above and foregoing reasons, we agree with the trial court’s conclusion that La. R.S. 6:316 authorized Hibernia to seize the funds in account number 882141551 and apply same towards payment of the delinquent debt owed by Standard. Accordingly, the trial court’s judgment is affirmed in all respects. Costs associated with this appeal are assessed against A & B Bolt and Supply, Inc.

AFFIRMED.

      . Cal Dive International, Inc. ("Cal Dive”) was also named as a defendant in the initial petition filed by A & B Bolt, Cal Dive filed an exception raising the objection of no right or cause of action on April 29, 2002. There is nothing in the record to indicate whether this exception was ever ruled on by the trial court. Nonetheless, Cal Dive is not a party to the instant appeal.

      . Although not addressed individually, all issues raised by A & B Bolt on appeal will be covered in this opinion.

      . In so holding, we note the case of Chrysler Credit Corporation v. Whitney National Bank, 798 F.Supp. 1234 (E.D.La.1992), wherein the court held that in order to avail itself of the statutory setoff remedy provided in La. R.S. 6:316(C), the bank must comply with the notice requirement of La. R.S. 6:316(D) and provide the court with evidence of same. While we look to federal cases for guidance, these decisions are not binding on us. We do not agree with the Eastern District’s interpretation of the notice requirement of La. R.S. 6:316(D) and refuse to apply this reasoning to the instant case.


author: | .KLINE, J.

text:
    Willie YOUNG, Jr. (Deceased) v. CAPITOL CONCRETE PRODUCTS, INC.
    No. 2002 CA 1822.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.
    Writ Denied Nov. 7, 2003.

      Mark D. Plaisance, Baker, Counsel for Appellant Willie Young (Deceased) Audrey Young (Petitioner).
    David Butler, Baton Rouge, Counsel for Appellee Capitol Concrete Products, Inc.
    Before: FOIL, McCLENDON, and KLINE
      , JJ.

      . Hon. William F. Kline, Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   | .KLINE, J.

The plaintiff in this action for workers’ compensation death benefits and burial expenses, Audrey H. Young, appeals the decision of the workers’ compensation judge granting summary judgment in favor of the employer, Capitol Concrete Products, Inc. (“Capitol”). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The pleadings and affidavits filed in this case establish that on March 9, 2001, the decedent, Willie Young, Jr., was employed as a truck driver by Capitol Concrete Products, Inc. On March 9, 2001, after having reported to work, Mr. Young was either sitting in the dispatcher’s office or standing outside talking with a co-worker while awaiting the arrival of a forklift operator to load his trailer, when he suffered a heart attack and died.

On August 20, 2001, in her capacity as Mr. Young’s surviving spouse and dependent, Mrs. Young filed this action to recover workers’ compensation death benefits and burial expenses. On November 26, 2001, Capitol filed a motion for summary judgment stating that there was no genuine issue of material fact in that the heart attack suffered by Mr. Young was not compensable and that Mrs. Young’s claim should be dismissed. A hearing was held on February 15, 2002 following which, the workers’ compensation judge (“WCJ”) granted Capitol’s motion for summary judgment. The judgment was signed on February 25, 2002.

Mrs. Young appeals the WCJ’s judgment and asserts the following assignments of error:

1. In the event of death, an employee’s family is entitled to reasonable funeral expenses. These expenses are due regardless of any other benefits allowable under the [Wjorkers’ [Cjompensation [A]ct. Thus, the hearing officer committed manifest error in not awarding funeral benefits.
2. Summary Judgment is proper only when there is no genuine issue of material fact. Here, co-worker affidavits differ as to what Willie Young was doing just prior to his heart attack. The court, then faced with conflicting affidavits and a credibility determination, should have denied the summary judgment and set the matter for trial.

LAW AND DISCUSSION

The applicable standard of review is de novo, using the same criteria used by the district court in deciding whether summary judgment should be granted. 3 Taylor v. Rowell, 98-2865, p. 3 (La.5/18/99), 736 So.2d 812, 814; J. Ray McDermott, Inc. v. Morrison, 96-2337, p. 9 (La.App. 1 Cir. 11/7/97), 705 So.2d 195, 202, wits denied, 97-3055, 97-3062 (La.2/13/98), 709 So.2d 753, 754. A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Rombo v. Walker, 97-2371, p. 3 (La.App. 1 Cir. 11/6/98), 722 So.2d 86, 88, unit denied, 98-3030 (La.1/29/99), 736 So.2d 840. Summary judgment is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2).

The initial burden of proof is on the mover to show that no genuine issue of material fact exists. La. C.C.P. art. 966(C)(2). However, once the mover has made a prima facie showing that the motion should be granted, if the adverse party bears the burden of proof at trial on the issue before the court, the burden shifts to him to present evidence demonstrating that material factual issues remain. La. C.C.P. art. 966(C)(2); J. Ray McDermott, 96-2337 at p. 10, 705 So.2d at 202. Material facts are those that potentially insure or preclude recovery, affect the litigant’s success, or determine the outcome of a legal dispute. Harrison v. Shipp, 98-0021, p. 6 (La.App. 1 Cir. 12/28/98), 724 So.2d 864, 867. Because it is the applicable substantive law that determines materiality, whether or not a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Rambo, 97-2371 at p. 4, 722 So.2d at 88.

If an employee receives a personal injury by an accident arising out of and in the course of his employment, the employer is required to pay compensation benefits. La. R.S. 23:1031(A). In cases in which an employee suffers a heart-related injury or death, the claim for benefits is governed by La. R.S. 23:1021(7)(e) which provides:

(7)(e) 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.)

Both prongs of the test set forth in La. R.S. 23:1021(7)(e) must be satisfied for the claimant to prevail. Thus, Mrs. Young had the burden to prove by clear and convincing evidence that Mr. Young’s physical work stress on the day of his fatal heart attack was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in the truck driving occupation. Mrs. Young also had the burden to demonstrate that the physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of Mr. Young’s fatal heart attack.

To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, that is, much more probable than its nonexistence. Gooden v. B E & K Construction, 33,457, p. 5 (La.App. 2 Cir. 6/23/00), 764 So.2d 1206, 1210. The heightened burden in La. R.S. 23:1021(7)(e) is intended to exclude from coverage an employee who just happened to have a heart attack while performing his job. City of Oakdale v. Smith, 2000-1792, p. 8 (La.App. 3 Cir. 5/2/01), 788 So.2d 507, 514, writ denied, 2001-1596 (La.9/14/01), 796 So.2d 685.

Capitol introduced three affidavits in support of its motion for summary judgment. The first affidavit was that of Chester LaBauex. Mr, LaBauex indicated that at the time of the instant incident, he was employed at Capitol as a tire man. He arrived at work prior to 7:00 a.m. and stated that Mr. Young had not started working at the time he suffered the heart attack, because he was awaiting the loading of his trailer. Mr. LaBauex indicated that Mr. Young’s trailer was not hooked to his truck and that he had not attempted to hook his trailer to his truck. He also stated that Mr. Young was not subjected to any work stress or exertion Land did not experience any stress or exertion which would be considered extraordinary or unusual in comparison to the stress or exertion experienced by the average truck driver.

The next affidavit introduced was that of Phillip Pitslata. Mr. Pitslata stated that he was employed by Capitol, as a dispatcher at the time of the instant incident. According to Mr. Pitslata, he arrived at work on March 9, 2001 between 5:30 and 5:45 a.m.. Mr. Young arrived at work shortly afterwards. Mr. Young complained of shortness of breath between 7:00 a.m. and 7:15 a.m. and subsequently suffered a heart attack. Between the time of Mr. Young’s arrival and the time of the heart attack, Mr. Young sat in the dispatcher’s office talking and awaiting the arrival of the forklift operator to load his trailer. Mr. Young had backed his truck up to the trailer but had not attempted to hook his trailer up prior to experiencing the heart attack. Mr. Young was not subjected to any work stress or exertion and certainly did not experience any stress or exertion which would be considered extraordinary or unusual in comparison to the stress or exertion experienced by the average truck driver.

The next affidavit was another submitted by Mr. LaBauex reiterating what was stated in the previous affidavit. He also added that Mr. Young did not attempt to back up his rig to hook on the trailer that morning and that the trailer did not begin to roll. Mr. Young did not jump from his rig to hurry and grab a block to stop the trailer.

Mrs. Young introduced the affidavit of George Gedrick. Mr. Gedrick indicated that he was employed by Capitol at the time of the instant incident as a forklift operator. He stated that when he and his brother arrived at work on that morning, they found Mr. Young and Mr. LaBauex standing outside talking. Mr. Young said he was about to back up his rig and hook it up to a trailer in order to drive it in back where it could be loaded. Mr. Gedrick stated that he and his brother stopped and talked with Mr. Young for a few moments before going to their work stations. Mr. Young appeared to be fine at that time.

Mrs. Young also introduced medical records from the Occupational Medicine Clinic that appeared to be erroneously dated April 31, 2000, and May 1,1^2000, indicating Mr. Young had a physical examination and a drug examination on those respec-tivé dates. The examination appeared to be work-required. The results were unremarkable.

The WCJ found that the affidavit of Mr. Gedrick, submitted by Mrs. Young, was not necessarily contradictory to the affidavits of Mr. LaBauex and Mr. Pitslata. Mr. Gedrick stated what Mr. Young was “about to do” as opposed to already having started working. Mr. Gedrick’s affidavit does not support Mrs. Young’s contention that Mr. Young was hooking up the trailer and jumped out of the truck at the time of the heart attack. The WCJ found that Mr. Pitslata’s affidavit was the most telling as Mr. Pitslata indicated that Mr. Young was sitting in his office when he fell short of breath and suffered a heart attack. As a result, the WCJ concluded there was no genuine issue of material fact and granted the motion for summary judgment.

After a thorough review of the record, we find no error in the WCJ’s finding. No genuine issue of material fact exists as to whether Mr. Young was involved in physical work stress that was extraordinary and unusual in comparison to the stress or exertion experienced by the average truck driver and thus, was the predominant and major cause of Mr. Young’s heart attack and subsequent death.

Mrs. Young also asserts that the WCJ erred in not awarding her burial expenses as a result of Mr. Young’s heart attack. Mrs. Young contends that, pursuant to La. R.S. 23:1210, she is entitled to burial and funeral expenses to be paid by Capitol, regardless of whether or not the heart attack suffered by Mr. Young was compensatory under the Workers’ Compensation Act. Capitol disagrees and argues that Mrs. Young is not entitled to these benefits as Mr. Young’s heart attack is a non-compensable injury under the Workers’ Compensation Act.

Louisiana Revised Statute 23:1210(A) provides as follows:

A. In every case of death, the employer shall pay or cause to be paid, in addition to any other benefits allowable under the provisions of this Part, reasonable expenses of the burial of the employee, not to exceed seven thousand five hundred dollars.

17Mrs. Young responds to Capitol’s argument by referencing the initial phrase in La. R.S. 23:1210, where it reads “In every case of death_” Mrs. Young contends that a reading of this statute implies that burial expenses should be paid by the employer for an employee regardless of whether that employee would be successful in obtaining other benefits. Mrs. Young equates burial expenses to that of medical benefits and indicates that an employee may recover medical expenses even though there is no recovery for compensation. With Mrs. Young’s contentions, we must respectfully disagree.

In a workers’ compensation case, a claimant must establish that the disabling or fatal injury was caused by an accident which arose out of and occurred during the course of the injured or deceased workers’ employment. La. R.S. 23:1031; Guidry v. Chevron U.S.A., Inc., 461 So.2d 625, 626 (La.App. 1 Cir.1984). As already discussed above, Mr. Young was not involved in a physical work stress that was extraordinary and unusual in comparison to the stress or exertion experienced by the average truck driver and thus, was the predominant and major cause of Mr. Young’s heart attack and subsequent death. As a result, Mr. Young’s heart attack and death were noncompensable under the Workers’ Compensation Act. Therefore, we find the WCJ did not err in dismissing Mrs. Young’s claim for burial expenses.

CONCLUSION

For the foregoing reasons, the judgment of the WCJ is affirmed. All costs are assessed to the appellant, Audrey H. Young.

AFFIRMED.


author: | .FITZSIMMONS, J.

text:
    Carl J. CHAUVIN v. SOUTHERN TECHNOLOGY & SERVICES, INC.
    No. 2002 CA 1871.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.

      Carl J. Chauvin, Houma, Pro Se — Plaintiff/Appellant.
    Candy Fodor Be, Baton Rouge, Counsel for Defendant/Appellee Southern Technology & Services, Inc.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   | .FITZSIMMONS, J.

Carl J. Chauvin (Chauvin) asserts a pro se appeal from an adverse judgment of the Office of Workers’ Compensation. Following our review of the record and the applicable law, this court reverses and remands.

BACKGROUND

Chauvin, who was employed as a fabricator/welder by Southern Technology & Services, Inc. (Southern), injured his back while lifting a one hundred twenty pound cylinder. He filed a disputed claim for compensation, in which he alleged that Southern was arbitrary and capricious in its refusal to authorize medical treatment by a physician of Chauvin’s choice. Thereafter, Southern expanded the scope of issues to encompass the question of causation of disability.

After a hearing on March 15, 2002, the workers’ compensation judge held that Chauvin had: de facto chosen an orthopedic specialist, and he was not entitled to another choice of physician in the field of orthopedics; failed to prove that his disability was caused by the accident under review; failed to prove that his disability was the result of a work-related injury; and violated La. R.S. 23:1208, thereby forfeiting any right to workers’ compensation benefits. Chauvin’s workers’ compensation claim was dismissed with prejudice. He appeals the holdings of the workers’ compensation judge.

CHOICE OF TREATING PHYSICIAN

Louisiana Revised Statute 23:1121 B provides:

The employee shall have the right to select one treating physician in any field or specialty. The employee shall have a right to the type of summary proceeding provided | .for in R.S. 23:1124B, when denied his right to an initial physician of choice. After his initial choice the employee shall obtain prior consent from the employer or his workers’ compensation carrier for a change of treating physician within that same field or specialty. The employee, however, is not required to obtain approval for change to a treating physician in another field or specialty.

In reasons for judgment, the workers’ compensation judge noted that from June 28, 2000 until the March 2002 trial date, Chauvin treated at least once a month with Dr. Christopher E. Cenac, an orthopedic surgeon. On April 19, 2001, after Dr. Ce-nac had advised Chauvin that he was going to reduce his pain medication, his wife, Sandy K. Chauvin, advised the insurer that the claimant wished to see another doctor. The workers’ compensation judge determined that Chauvin’s request to be treated by another physician, following approximately nine months of treatment by Dr. Cenac, emanated from the treating physician’s admonitions about drug use.

Chauvin claims that from June 2000 through September 2001, he and his wife repeatedly requested from the Office of Workers’ Compensation that Chauvin be placed with another treating physician. Mrs. Chauvin testified that she initially notified the office of the Louisiana Workers’ Compensation Corporation (LWCC) during the last week of June 2000 of her husband’s and her concerns about Dr. Ce-nac as the treating orthopedic surgeon. She said she was advised that the choice of physician would be authorized. However, it was simultaneously recommended that Chauvin undergo a scheduled epidural steroid injection with Dr. Cenac, and he could later select another treating physician. Mrs. Chauvin stated that she also advised the workers’ compensation case representative, Rosa Edwards, of her concerns about Dr. Cenac as the treating physician between June 9, 2000 and August 30, 2000 (when Ms. Edwards was replaced by Kellye Winston). Additionally, Mrs. Chau-vin stated that Jonelle West and Andrea Cothern, [Registered nurses assigned by LWCC to Chauvin’s case, were informed of the Chauvins’ desire to have a physician other than Dr. Cenac as Chauvin’s orthopedist.

Lisa Robbins, the claims representative for LWCC at the time of the hearing, testified that the office records reflected that Chauvin was advised on June 14, 2000 of his right to choose treating physician in any field or specialty. She acknowledged that on June 30, 2000, Mrs. Chauvin stated that she and Chauvin were not pleased with Dr. Cenac and requested Dr. Alexis Waguespak. Ms. Robbins stated that after the June 30, 2000 communication, no written notations were made to her office records relative to any further requests for a change of physician until April 2001. At that time, Mrs. Chauvin called to ask if Chauvin could exercise his choice of physician. The claims representative determined that the on-going treatment by Dr. Cenac for a period of approximately nine months had established Dr. Cenac as Chauvin’s choice of physician.

The Louisiana First and Third Circuit Courts of Appeal have historically recognized de facto selection of a physician pursuant to La. R.S. 23:1121 B. Moore v. Sanderson Farms, Inc., 95-2042 (La.App. 1 Cir. 5/10/96), 674 So.2d 478, writ denied, 96-1399 (La.9/13/96), 679 So.2d 106; Guillotte v. Dynamic Offshore Contractors, 628 So.2d 234 (La.App. 3rd Cir.1993). In contrast, the Louisiana Fourth Circuit Court of Appeal has not embraced the concept of defacto choice of physician. Santacruze v. INA Insurance Company, 614 So.2d 323 (La.App. 4th Cir.1993). Most recently, in Smith v. Southern Holding, Inc., 2002-1071 (La.1/28/03), 839 So.2d 5, the Louisiana Supreme Court resolved the disparate appellate |,.¡interpretations of La. R.S. 23:1121 B by holding that an employee possesses “the right to choose his treating physician, even though he or she submitted to treatment by the employer’s physician.” Smith, 2002-1071 at p. 8, 839 So.2d at 10. The court specifically noted that La. R.S. 28:1121 B places no limit on the employee’s right of selection of a physician “by submitting to treatment by the employer’s physician, even for an appreciable amount of time. The statute is clear and mandatory that the ‘employee shall have the right to select one treating physician ....’” Smith, 2002-1071 at p. 9, 839 So.2d at 11.

Given the judicial pronouncement by the supreme court in Smith, the attribution of the concept of a de facto selection of a physician by Chauvin is no longer applicable. Chauvin is entitled to the selection of a treating physician other than Dr. Cenac, who was chosen by Southern. Accordingly, the decision of the workers’ compensation judge that Chauvin had de facto selected an orthopedic surgeon is reversed.

VIOLATION OF LA. R.S. 23:1208

The workers’ compensation judge found that Chauvin misrepresented his treatment with Dr. Cenac by his purported requests to see another doctor and by Chauvin’s omission of prior treatment by Dr. Stuart I. Phillips, an orthopedist, in 1996. He deemed Chauvin divested of his right to workers’ compensation benefits pursuant to La. R.S. 23:1208.

Louisiana Revised Statute 23:1208 deals with misrepresentations concerning benefit payments. Section A states in pertinent part: “It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.” The legislative intent behind La. R.S. 23:1208 was to prevent and discourage |fifraud. LeBlanc v. Grand Isle Shipyard, Inc., 95-2452, p. 12 (La.App. 1 Cir. 6/28/96), 676 So.2d 1157, 1165 (quoting Resweber v. Haroil Construction Company, 94-2708, p. 7 (La.9/5/95), 660 So.2d 7, 12). Applicability of the statute pertains to any false statement or misrepresentation, including one involving a prior injury, made willfully by a claimant for the purpose of obtaining benefits. Resweber, 94-2708, at p. 10, 660 So.2d at 14.

A conclusion that a claimant has forfeited his right to workers’ compensation benefits is a question of fact that will not be disturbed on appeal absent a clearly wrong or manifestly erroneous finding. Stobarb v. State, Department of Developments and Transportation, 617 So.2d 880, 882 (La.1993). Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court might feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Our Lady of the Lake Regional Medical Center v. Helms, 98-1931, p. 4 (La.App. 1 Cir. 9/24/99), 754 So.2d 1049, 1051, writ denied, 1999-3057 (La.1/7/00), 752 So.2d 863. Applying these legal precepts to our review of the record as a whole, this court fails to glean sufficient evidence that application of La. R.S. 23:1208 was warranted by the failure of Chauvin to note three previous visits to Dr. Phillips in 1996 and by his asseveration that he had repeatedly requested another treating physician.

Mrs. Chauvin asserted that she called LWCC at least one hundred times between June 2000 and April 2001 to discuss several issues, some of which included a request for Chauvin to see another doctor. The judge noted in reasons that only six calls from the Chauvins’ telephone number Jjwere reflected in the insurer’s WorldCom bill between June 26, 2000 and April 2001. However, it was not substantiated that the record before us contained complete data relative to telephone calls. There existed two additional telephone numbers the claimants might have conceivably used to contact LWCC, particularly given the fact that Mrs. Chauvin indicated that one of the numbers was a toll-free listing. It is also duly noted that Mrs. Chauvin, not Chauvin, the claimant, made the reference to one hundred telephone calls. At the September 2001 limited hearing, Chauvin testified that “since June of 2000 through the present, [he and his] wife ... repeatedly asked to see another doctor other than Dr. Cenac [.]” Thereafter, at the trial on all issues on March 15, 2002, Chauvin stated that he called the workers’ compensation office seventeen times in seven weeks between June 2000 and April 2001. Finally, Lisa Robbins, the claims adjustor who testified at the hearings, was not the person who handled the files for the relevant period of June 2000 through April 2001. Moreover, Ms. Robbins stated that it was possible that calls had been received by another person and not noted in the files.

Chauvin admitted at trial that, in his previous deposition, he had overlooked the fact that he had been treated by Dr. Phillips in 1996 and that he “just booboo’d.” Inadvertent or inconsequential false statements will not result in forfeiture. Resweber, 94-2708, p. 16, 660 So.2d at 16. The records submitted at trial reflect three office visit treatments with Dr. Phillips years earlier between January 25, 1996 and July 25 1996. Dr. Phillips’ notes indicate that he discharged Chauvin on the third visit, with the suggestion that he participate in a drug detoxification program. At the hearing, Chauvin denied receiving any communication from Dr. Phillips that drug detoxification was recommended.

|sIt is noted that the purpose of the purported statements or representations in contention was to obtain a physician of choice. While one might infer that the underlying ultimate goal of the disputed testimony was to “obtain benefit or payment [,]” this is not the delineated claim by Chauvin in his action to elect a physician of choice. Thus, the misrepresentations on which the workers’ compensation judge based a section 23:1208 violation were aimed at obtaining a physician of choice, and only indirectly and inferentially associated with a claim for benefits.

We find clear error in the judge’s attribution of a La. R.S. 28:1208 violation. Chauvin’s failure to indicate that he had been previously treated on three occasions by Dr. Phillips and his lack of acknowl-edgement of receipt of a discharge letter by Dr. Phillips fail to rise to the level of “willfully [making] a false statement or representation” that was “for the purpose of obtaining ... any benefit”. The evidence surrounding the purported telephone communications was unclear and, therefore, fails to warrant the penalty of a finding of fraud. Accordingly, that portion of the judgment is reversed.

CONCLUSION

The judgment of the Office of Workers’ Compensation that Chauvin had de facto selected an orthopedic specialist is reversed. Moreover, the judge’s finding that Chauvin misrepresented his claims in violation of La. R.S. 23:1208 is reversed. The issue of causation is deferred pending this court’s remand to the Office of Workers’ Compensation for further action not inconsistent with this judgment. Costs associated with this appeal are assessed to Southern Technology & Services, Inc.

REVERSED AND REMANDED.

      . In the answer to the disputed claim, Southern denied that Chauvin had “any present work-related disability.” Thereafter, on December 11, 2001, the hearing was continued because Chauvin needed additional time to expand the scope of the trial to address Southern’s request to include causation of disability as a contested issue.

      . The workers’ compensation judge also denied a motion in limine by Chauvin seeking to limit the use of Dr. Christopher Cenac’s deposition. Chauvin does not address that issue in his appeal.

      . Our review of the LWCC notes indicates that the afore-noted conversation regarding changing physicians actually occurred on July 5, 2000.


author: I .MCCLENDON, J.

text:
    William LAGNION v. STATE of Louisiana, Phillip N. Asprodites, Todd Keating, Gary P. Ross and Richard Hudson.
    No. 2002 CA 1853.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.
    Ronald J. Gossen, Lafayette, Counsel for PlaintiffrAppellant William Lagnion.
    Rose Polito Wooden, Baton Rouge, Counsel for Defendants/Appellees Phillip N. Asprodites, Todd Keating, Gary P. Ross and Richard Hudson.
    Before: FOIL, McCLENDON, and KLINE, J.J.

      . Hon. William F. Kline Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   I .MCCLENDON, J.

The salient issue raised by this appeal is whether this state court action is barred by the doctrine of res judicata because, in prior federal litigation of the identical claims, the federal court dismissed the plaintiffs federal claims with prejudice and his state claims without prejudice. For the following reasons, we reverse the judgment of the trial court and remand the case.

On September 13, 2001, William Lagnion filed a complaint in the United States District Court, Western District of Louisiana, naming as defendants the Attorney General for the State of Louisiana; Phillip N. Asprodites, Assistant Secretary of the Department of Natural Resources; Todd Keating, Issuing Authority for the Department of Natural Resources; Gary P. Ross, Director of Oilfield Restoration for the Department of Natural Resources; and Richard Hudson, Manager of the Legal Conservation Department of the Department of Natural Resources. Therein, Lagnion alleged that the defendants violated his rights by declaring two of his oil wells orphaned pursuant to the Oilfield Site Restoration Law, LSA-R.S. 30:80 et seq. The plaintiff asserted the existence of a federal question arising under the Fifth Amendment of the United States Constitution, the Fourteenth Amendment of the United States Constitution and 42 U.S.C. §§ 1983 through 1988, and asserted various state claims.

After hearing the matter, the federal court determined that the plaintiffs federal claims had prescribed and rendered judgment dismissing those claims with prejudice. The court further dismissed the plaintiffs state claims without prejudice. In its oral reasons for judgment, the court stated:

I’m going to dismiss your federal case with prejudice. I am not going to dismiss your state claims with prejudice. I’m going to dismiss your state claims without prejudice, meaning you can file your state claims in state court. Okay? And you do have state claims that you have alleged. I don’t think you |ahave any viable federal claims that remain. You may or may not have any viable state claims, but I’m going to give you that opportunity in state court where they belong.

On January 23, 2002, Lagnion filed a petition in the Nineteenth Judicial District Court for the Parish of East Baton Rouge, State of Louisiana against the same defendants, asserting virtually the same claims that he had asserted in his federal lawsuit. The defendants responded by filing a motion for summary judgment, asserting the action was barred by the doctrine of res judicata and by prescription.

After hearing the matter, the trial court granted summary judgment in favor of the defendants and dismissed the plaintiffs lawsuit. In its oral reasons for judgment, the trial court stated that the claims were barred by the doctrine of res judicata and that it deferred ruling on the issue of prescription. Lagnion appealed, contending that the trial court erred in concluding his state suit was barred by the doctrine of res judicata. In response to the appeal, the defendants filed an exception of prescription with this court.

In determining whether a judgment rendered by a federal court exercising federal question jurisdiction has pre-clusive effect in a subsequent state action, the state court must apply the federal law of res judicata. Pilie & Pilie v. Metz, 547 So.2d 1305, 1309 (La.1989). Under the federal law of res judicata or claim preclusion, a judgment, once rendered, is the full measure of relief to be accorded between the same parties on the same “claim” or “cause of action.” Reeder v. Succession of Palmer, 623 So.2d 1268, 1271 (La.1993), cert. denied, 510 U.S. 1165, 114 S.Ct. 1191, 127 L.Ed.2d 541 (1994). Therefore, if a set of facts gives rise to a claim based on both state and federal law, and the plaintiff brings the action in a federal court that has pendent jurisdiction to hear the state cause of action, the |4federal court’s judgment is res judicata, and prevents the plaintiff from subsequently asserting a state claim on those same issues in a state court action. Reeder v. Succession of Palmer, 623 So.2d 1268, 1272-73, (La.1993), cert. denied, 510 U.S. 1165, 114 S.Ct. 1191, 127 L.Ed.2d 541 (1994); Rochon v. Whitley, 96-0835, pp. 6-7 (La.App. 1 Cir. 2/14/97), 691 So.2d 189, 192.

In Terrebonne Fuel & Lube, Inc. v. Placid Refining Co., 95-654, 95-671, p. 16 (La.1/16/96), 666 So.2d 624, 634, the supreme court recognized that exceptions to the federal doctrine of res judicata exist where “there is an express reservation of claims, when the defendant acquiesces in such a reservation, or when the court in the first action has expressly reserved the plaintiffs right to maintain the second action.” Subsequently, the supreme court reaffirmed this position in Stroik v. Ponsetti 96-2897, p. 6, (La.9/9/97), 699 So.2d 1072, 1077, stating, “For the purpose of res judicata, when the court in the first action has expressly reserved the plaintiffs right to maintain the second action, the first action fails to acquire the authority of the thing adjudged as to the second action.”

In this case, the federal court dismissed the state claims without prejudice, stating that the plaintiff could assert his state claims in state court. Clearly, by these actions, the federal court reserved the plaintiffs right to maintain a suit in state court. Therefore, the doctrine of res judi-cata does not preclude the instant state action, and the trial court erred rendering summary judgment in favor of the defendants on that basis.

| .JPrior to submission of this case for decision by this court, the defendants filed, with this court, an exception of prescription, asserting the plaintiffs claims are prescribed pursuant to LSA-C.C. art. 3492. This issue was not addressed by the trial court. Furthermore, because the case was dismissed by the trial court pursuant to the doctrine of res judicata, the record on appeal is very limited and does not adequately address the issue of prescription. Therefore, in the interest of justice, we will remand the case for an evidentiary hearing on the exception of prescription.

For the foregoing reasons, we reverse the judgment of the trial court, and we remand this case to the trial court for a hearing on the defendants’ exception of prescription and for further proceedings. Costs in the sum of $391.38 are assessed to the defendants.

REVERSED AND REMANDED.

        . In light of the more recent Supreme Court cases of Terrebonne Fuel & Lube and Stroik, we decline to employ herein the analysis set forth in Reeder v. Succession of Palmer, 623 So.2d 1268 (La.1993), cert. denied, 510 U.S. 1165, 114 S.Ct. 1191, 127 L.Ed.2d 541 (1994), concerning the discretion of the federal court in declining to exercise its pendent jurisdiction over state claims.


author: _[¿FOIL, J.

text:
    Kirby J. KLEIN, Carolyn Klein Hail, and the Estate of Philip B. Klein v. AMERICAN LIFE & CASUALTY COMPANY, American Estate Services, Inc. a/k/a Advanced Legal Systems, Inc., Brian E. Causey, Ronnie Planchard, and Addison Insurance Marketing, Inc.
    No. 2001 CA 2336.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.
    Writ Denied Nov. 7, 2003.

      James F. Willeford, New Orleans, Marian Livaudais, Mandeville, for Appellants Plaintiffs Kirby J. Klein and Carolyn Klein Hail.
    Christine Lipsey, Baton Rouge, for Ap-pellee Defendant American Life & Casualty Ins. Co.
    David C. Forrester, Baton Rouge, Melissa J. Richard, for Appellees Defendants American Estate Services, Inc. and Addison Ins. Marketing, Inc.
    Panel composed of Judges FRANK FOIL, PAGE McCLENDON and WILLIAM F. KLINE, Jr.

       Judge WILLIAM F. KLINE, Jr., Retired, serving Pro Tempore by special appointment of the Louisiana Supreme Court.

   _[¿FOIL, J.

The heirs of an annuity buyer appeal from a judgment dismissing their claims against a life insurance company, an insurance marketing corporation, and an estate planning corporation. We affirm in part, reverse in part, and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

In May 1995, Philip Klein, 85 years old, contracted with American Estate Services, Inc. (AES) for estate planning services, including the execution of a will, a living will, a power of attorney, and a living trust. Mr. Klein met with Mr. Brian Cau-sey, an AES agent, several times. In addition to being an AES agent, Mr. Causey was also a licensed insurance agent of Addison Insurance Marketing, Inc. (AIM), a company that marketed annuities for insurance companies. Upon Mr. Causey’s recommendation, Mr. Klein sold substantial stock assets to place over $840,000.00 in two annuities from American Life and Casualty Insurance Company (ALCIC). Mr. Klein’s children, Kirby Klein and Carolyn Hail, met Mr. Causey and knew their father was engaged in estate planning.

In early 1996, Mr. Klein received tax documents showing he owed substantial taxes (approximately $38,000.00) on capital gains he received from the sale of the stock in 1995. He contacted Kirby and Carolyn to help him prepare his 1995 tax return. At that time, Kirby and Carolyn learned their father had sold his stock assets to purchase the ALCIC annuities. Mr. Klein moved into an assisted living facility in January 1998. In August 1998, Kirby found the ALCIC annuity contracts among his father’s paperwork, reviewed them, and felt something “was amiss.” He took them to an attorney who reviewed them and told him they were “not good estate planning” for someone in Mr. Klein’s position. Mr. Klein died in September 1998.

On March 29, 1999, Kirby and Carolyn filed suit against AES, ALCIC, and Mr. Causey. The plaintiffs amended the petition multiple times, adding |3the estate of Mr. Klein as a plaintiff, adding AIM as a defendant, and more specifically alleging the damages claimed. Their theories of recovery were: (1) defendants breached their contractual and fiduciary duties to plaintiffs and committed unfair trade practices under insurance law by advising Mr. Klein to purchase an unnecessary living trust and to liquidate his good investments to buy the ALCIC annuities; (2) defendants breached their duties by providing estate planning services that only generated fees and commissions that benefited themselves rather than benefiting Mr. Klein; (3) defendants negligently provided improper and defective estate planning services; and (4) ALCIC failed to properly supervise Mr. Causey, because it knew he was selling its annuities through the marketing of living trusts.

AES, ALCIC, AIM, and Mr. Causey answered the petition. AES, ALCIC, and AIM later filed exceptions of no cause of action as to plaintiffs’ breach of fiduciary duty and unfair insurance trade practices claims, prescription as to plaintiffs’ negligence and contract claims, and peremption under La. R.S. 9:5606 as to all of their claims. The plaintiffs opposed the exceptions and filed a petition captioned “Third Amended and Supplemental Petition,” adding allegations of fraud, as well as violations of La. R.S. 22:1214 (unfair financial planning practices), La. R.S. 22:1220 (insurer’s duty of good faith and fair dealing), and RICO (18 U.S.C. § 1662). On AL-CIC’s motion, the trial court later vacated the order that allowed the plaintiffs to file the “Third Amended and Supplemental Petition.”

The trial court held a hearing on the exceptions, and on July 27, 2001, signed a judgment granting them, and dismissing the plaintiffs’ claims against AES, ALCIC, and AIM. The plaintiffs challenge that judgment in the present appeal. On June 28, 2002, the trial court signed a second judgment dismissing the plaintiffs’ claims against Mr. Causey on the grounds |4of prescription and/or peremption for the same reasons rendered with the July 27th judgment. The plaintiffs appeal that judgment under Docket Number 2002 CA 1946, also decided this date.

LOUISIANA REVISED STATUTE 9:5606

No action for damages against any insurance agent, broker, solicitor, or other similar licensee in Louisiana, whether based in tort, breach of contract, or otherwise, arising out of an engagement to provide insurance services shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date the alleged act, omission, or neglect was discovered or should have been discovered. La. R.S. 9:5606(A). Even as to actions filed within one year from the date of discovery, in all events, such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect. Id. The one-year and three-year periods of limitation provided in La. R.S. 9:5606(A) are peremptive and may not be renounced, interrupted, or suspended. La. R.S. 9:5606(D).

The plaintiffs contend the trial court erred in applying La. R.S. 9:5606, because their claims involve an “engagement to provide estate planning services,” not “insurance services,” as is provided by the statute. Mr. Klein initially did seek assistance with estate planning; but, he ultimately bought annuities that, under La. R.S. 22:6(17), are classified as a form of insurance. The plaintiffs’ claims are based on Mr. Klein’s purchase of the annuities. Thus, their claims arise from an “engagement to provide insurance services” and fall within the purview of La. R.S. 9:5606.

[KThe plaintiffs next contend La. R.S. 9:5606 does not apply to their claims against ALCIC, an insurance company, because the statute’s peremptive periods only apply to “any insurance agent, broker, solicitor, or other similar licensee.” Because the acts of an insurance agent are generally imputable to the insurer he represents, we conclude La. R.S. 9:5606’s per-emptive periods apply to the claims against ALCIC under the facts of this case.

The plaintiffs finally contend La. R.S. 9:5606 does not apply to their claims because the statute’s peremptive periods do not apply in cases of fraud. According to plaintiffs, they have alleged sufficient facts to establish the defendants’ participation in a fraudulent scheme to sell annuities under the guise of marketing estate planning services. This argument is intertwined with the plaintiffs’ argument that the trial court erred in refusing to allow them to amend their petition and is addressed as follows.

AMENDMENT OF THE PETITION

The plaintiffs contend the trial court should have allowed them the opportunity to amend their petition to allege fraud because the peremptive periods in La. R.S. 9:5606(A) do not apply in cases of fraud.

The law takes a liberal approach toward allowing amended pleadings in order to promote the interests of justice. Reeder v. North, 97-0239 (La.10/21/97), 701 So.2d 1291, 1299. Generally, the decision to allow amendment after an answer has been filed is within the sound discretion of the trial court. Heritage Worldwide, Inc. v. Jimmy Swaggart Ministries, 95-0484 (La.App. 1 Cir. 11/16/95), 665 So.2d 523, 527, writ denied, 96-0415 (La.3/29/96), 670 So.2d 1233. However, if new allegations raise the possibility that a claim is not perempted, even if the ultimate outcome of the peremption issue, once the petition is amended, is uncertain, then opportunity to amend should be allowed. Reeder v. North, 701 So.2d at 1299.

LThe “Third Amended and Supplemental Petition” contains allegations that defendants Causey, AIM, and AES fraudulently participated in a “bait and switch” scheme whereby they held themselves out as estate planners, when in fact they were actually marketing the sale of annuities to unsuspecting elderly clients, without regard for the appropriateness of such an investment. It is also alleged that ALCIC was aware of and approved the “bait and switch marketing tactics” of Causey, AIM, and AES.

Under La. R.S. 9:5606(0, the peremptive periods of La. R.S. 9:5606(A) shall not apply in cases of fraud. Fraud is a misrepresentation or suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. La. C.C. art.1953. The plaintiffs’ “bait and switch” allegations fit the definition of fraud and raise the possibility their claims may not be perempted by La. R.S. 9:5606(A). When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. La. C.C.P. art. 934. Thus, the trial court abused its discretion by refusing to allow the plaintiffs to amend their petition. We will remand this case to allow the plaintiffs to do so.

PRESCRIPTION OF NEGLIGENCE CLAIMS

The plaintiffs contend the trial court erred in dismissing their negligence claims as prescribed. A tort claim is subject to liberative prescription of one year, which begins to run from the day injury or damage is sustained. La. C.C. art. 3492. Damage is considered to have been sustained, within the meaning of the article, only when it has manifested itself with sufficient certainty to support accrual of a cause of action. Cole 7v. Celotex Corporation, 620 So.2d 1154, 1156 (La.1993). The doctrine of contra non valentem suspends prescription where a cause of action is not known or reasonably knowable by the plaintiff. In such a situation, prescription begins when the injured party obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort. Campo v. Correa, 01-2707 (La.6/21/02), 828 So.2d 502, 510-511. Nevertheless, a plaintiffs mere apprehension that something may be wrong is insufficient to commence the running of prescription unless the plaintiff knew or should have known through the exercise of reasonable diligence that his problem may have been caused by the defendants’ acts of negligence. See Id.

In oral reasons for judgment, the trial court found that both Kirby and Carolyn were aware in the spring of 1996 that Mr. Klein had purchased the annuities and had incurred substantial capital gains taxes because of his sale of stock. According to the trial court, the plaintiffs should have discovered their cause of action in April 1996 when they learned their father had purchased the annuities. We disagree.

Carolyn testified that she had no involvement in her father’s financial affairs other than helping him calculate the capital gains taxes owed on his 1995 tax return. She knew her father had moved some of his assets into a trust and that he had purchased the annuities, but she did not fully understand what an annuity was and had never before bought or sold stock. Kirby testified that, in 1995, he knew his father had established a trust and placed some of his assets into it. It did not appear to Kirby that the trust did any harm to his father. Kirby first learned his father purchased the annuities in the spring of 1996 when his father asked him to help calculate the capital gains taxes he owed for 1995. He asked his father whether the estate planner had explained that the sale of stock would result in capital gains taxes and his father was unsure. It was not until August of 1998, when Kirby found the annuity contracts in a safe deposit box, that he read them, Isdiscovered an alleged onerous surrender charge, thought something was “amiss,” and consulted an attorney to review them.

After a thorough review of the record, we conclude the trial court erred in concluding Carolyn and Kirby had sufficient information in the spring of 1996 to know of their cause of action against the defendants. Their father’s purchase of annuities as an estate planning tool was not a peculiar* act. Further, his incurrence of capital gains taxes was a normal consequence of the sale of the stock. Mere knowledge of these facts would not indicate to a reasonable person that he or she is the victim of a tort. Further, any apprehension experienced by the plaintiffs because of the high capital gains taxes was insufficient to put them on notice that the defendants’ acts may have caused them damage. The trial court erred in granting the defendants’ exception of prescription.

UNFAIR FINANCIAL PLANNING PRACTICES

The plaintiffs contend the trial court erred in granting the defendants’ exception of no cause of action as to their claim for unfair financial planning practices as defined by La. R.S. 22:1214(19).

Part XXVI of Title 22 of the Louisiana Revised Statutes, titled “Unfair Trade Practices,” provides a detailed enforcement mechanism by which the Commissioner of Insurance is empowered to investigate allegations of unfair methods of competition or unfair or deceptive acts in the insurance business, to hold hearings, to issue cease and desist orders, to assess monetary penalties against violators, and to suspend or revoke the license of violators. See La. R.S. 22:1216, 1216, 1217 and 1217.1. No provision in this statutory scheme, however, creates a cause of action in favor of a person allegedly injured by unfair trade practices in the insurance business as set forth in La. R.S. 22:1214. Clausen v. Fidelity and Deposit Company of 9Maryland, 96-0504 (La.App. 1 Cir. 8/4/95), 660 So.2d 88, 86, writ denied, 95-2489 (La.1/12/96), 666 So.2d 320.

Plaintiffs next contend any violation of the Insurance Code (in this case, a violation of La. R.S. 22:1214(19)) gives rise to a cause of action under La. R.S. 22:1220, which imposes a duty of good faith and fair dealing upon insurers. Although La. R.S. 22:1220 provides a right of action to both insureds and third party claimants, only the commission of one of the specific acts enumerated in La. R.S. 22:1220(33) can support a private action for violation of the statute. Theriot v. Midland Risk Insurance Company, 95-2895 (La.5/20/97), 694 So.2d 184, 188. Thus, La. R.S. 22:1220 cannot be used to assert a private cause of action for a violation of La. R.S. 22:1214(19).

The trial court did not err in granting the defendants’ exception of no cause of action as to plaintiffs’ claims for unfair financial planning practices.

CONCLUSION

For the foregoing reasons, the district court’s judgment is AFFIRMED IN PART, REVERSED IN PART, and REMANDED. It is AFFIRMED insofar as it dismisses plaintiffs’ claims for unfair financial planning practices. It is REVERSED insofar as it dismisses plaintiffs’ claims on the grounds of peremption under La. R.S. 9:5606. It is REVERSED insofar as it dismisses plaintiffs’ negligence claims on the grounds of prescription. This matter is REMANDED to the trial court for an order directing the plaintiffs to amend their petition within a specified time period and for further proceedings consistent with this opinion. Costs of the appeal are assessed equally to the plaintiffs and the defendants.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

      . The plaintiffs have not appealed the trial court’s dismissal of their claim for breach of fiduciary duty.

      . The plaintiffs filed a motion to consolidate the appeals. This court denied the motion but ordered the appeals to be assigned to the same panel and to be placed on the same docket. Klein et al. v. American Life & Casualty Company et al., 2001 CA 2336, 2002 CA 1946 (La.App. 1 Cir. 3/21/03).

      . An "annuity” is "[a] contract sold by insurance companies that pays an income benefit for the life of a person, for the lives of two or more persons, or for a specified period of time, or a contract that may provide for a series of payments to be made or received at regular intervals at the direction of the contract holder.” La. R.S. 22:6(17).

      . We note the jurisprudence is unsettled as to whether the fraud exception of La. R.S. 9:5606(C) applies to both the one and three year peremptive periods referenced in La. R.S. 5606(A). This court has noted that the fraud exception in the legal malpractice statute, La. R.S. 9:5605, is applicable to both. See Coffey v. Block, 99-1221 (La.App. 1 Cir. 6/23/00), 762 So.2d 1181, 1187, writ denied, 00-2226 (La. 10/27/00), 772 So.2d 651. We conclude a similar interpretation is applicable to La. R.S. 9:5606.

      . Although plaintiffs argue the court in French Market Plaza Corporation v. Sequoia Insurance Company, 480 F.Supp. 821 (E.D.La.1979), found that a private right of action existed under the Insurance Code, this argument is incorrect. The French Market court found the plaintiffs there had a cause of action for negligent misrepresentation. 480 F.Supp. at 826.


author: | .CIACCIO, J.

text:
    LOUISIANA WORKERS’ COMPENSATION CORPORATION v. N/C MATERIALS, INC.
    No. 2002 CA 2127.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.
    Writ Denied Nov. 7, 2003.
    W. Michael Stemmans, M. Todd Alley, Baton Rouge, Counsel for Plaintiff/Appel-lee Louisiana Workers’ Compensation Corporation.
    Richard J. Fernandez, Metairie, Counsel for Defendani/Appellant N/C Materials, Inc.

      Before: CARTER, C.J., WHIPPLE and CIACCIO, JJ.

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

   | .CIACCIO, J.

Defendant N/C Materials, Ine. appeals a summary judgment against it awarding $48,099.29 in damages to plaintiff, Louisiana Workers’ Compensation Corporation (“LWCC”).

FACTS

LWCC insured N/C Materials against workers’ compensation claims, under policy number 18061, beginning April 30,1993. LWCC filed suit against N/C Materials in 1998, alleging that N/C Materials breached its contract by failing to pay premiums due and by failing to report its payroll as required by the policy.

LWCC moved for summary judgment, arguing that the additional premiums applied to coverage for truck drivers whose income N/C Materials failed to report. N/C Materials maintained that the truck drivers were independent contractors and not covered by the policy. LWCC countered that the truck drivers were not independent contractors, or alternatively, that they fell under the manual labor exception of the independent contractor law. LWCC therefore risked exposure to workers’ compensation claims by the truck drivers and additional premiums were due.

After a hearing, the trial court granted LWCC’s motion for summary judgment and awarded damages in the amount of $48,099.29. N/C Materials now appeals, arguing that the trial court erred in granting summary judgment and ordering N/C Materials to pay premiums for additional exposure.

LAW AND ANALYSIS

A summary judgment is a procedural device used to avoid a full-scale trial where there is no genuine factual dispute. Summary judgment is favored and “is designed to secure the just, speedy, and inexpensive determination of every action.” An appellate court’s review of a summary judgment is a de novo review based on the evidence presented at the trial court level and using the same criteria as the trial court in deciding whether summary judgment is appropriate.

Is A motion for summary judgment is properly granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. The initial burden is on the mover to show that no genuine issue of material fact exists. If the mover shows an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense, then the nonmov-ing party must produce factual support sufficient to satisfy his evidentiary burden at trial. If the nonmoving party fails to do so, then there is no genuine issue of material fact, and a summary judgment is warranted.

The applicable substantive law determines whether a particular fact is material in a summary judgment setting. An insurance policy is a legal contract between the parties. When interpreting an insurance contract, the court must attempt to discern the common intent of the insured and insurer. Analysis should begin with a review of the words in the insurance contract. The contract must be enforced as written when the words are clear and explicit and lead to no absurd consequences.

Part 5, Section C of LWCC’s insurance policy in favor of N/C Materials mandated that N/C Materials report payroll for anyone who could potentially expose LWCC to liability:

Premium for each work classification is determined by multiplying a rate times a premium basis .... This premium basis includes payroll and all other remuneration paid or payable during the policy period for the services of:
2. all other persons engaged in work that could make us liable under Part One (Workers Compensation Insurance) of this policy. If you do not have payroll records for these persons, the contract price for their services and materials may be used as the premium basis. This paragraph 2 will not apply if you give us proof that the employers of these persons lawfully secured their workers compensation obligations.

[4And the endorsement to this policy further emphasizes N/A Materials’s obligation to report all potential liabilities:

The [insured] shall include in the gross payroll for the reporting period all payments made to contractors performing any work for the [insured] which is a part or process of the trade or business of the [insured] and shall pay premium thereon calculated at the rate or rates named in the policy and any later endorsements, with the exception that the [insured] shall not be required to report as payroll any payments made to contractors who have furnished to the [insured] certificates of insurance showing workers compensation insurance coverage for the contractor’s Louisiana employees during the reporting period. (Emphasis ours.)

Paul Thompson, Premium Audit Specialist for LWCC, testified via affidavit that N/C Materials did not produce valid certificates of insurance showing that the truck drivers carried their own workers’ compensation insurance, allowing them to be excluded from the premium calculation pursuant to the terms of the policy.

Thus, whether the truck drivers were N/C Materials’ employees or independent contractors is immaterial within the context of the legal issue in this case. According to the plain language of the insurance policy, even if the drivers were independent contractors, N/C Materials must report payments to them. N/C Materials was exempted from this requirement to report the drivers’ payroll only if N/C Materials provided to LWCC valid certificates of insurance as proof that these drivers did not expose LWCC and N/C Materials to additional liability. N/C Materials failed to do so.

Assertions by N/C Materials that none of the truck drivers ever filed a claim for workers’ compensation coverage is irrelevant. The premiums cover potential exposure to liability, not actual claims.

CONCLUSION

For these reasons, we affirm the trial court’s summary judgment in favor of LWCC. Costs of this appeal are assessed to N/C Materials.

AFFIRMED.

      . Keller v. Case, 99-0424 (La.App. 1 Cir. 3/31/00), 757 So.2d 920, 922.

      . LSA-C.C.P. art. 966(A)(2).

      . Simmons v. Berry, 98-0660 (La.App. 1 Cir. 12/22/00), 779 So.2d 910, 913-914.

      . LSA-C.C.P. art. 966(B).

      . LSA-C.C.P. art. 966(C)(2).

      . LSA-C.C.P. art. 966 and 967; see also Simmons v. Berry, 779 So.2d at 914.

      . Simmons v. Berry, 779 So.2d at 915.

      . Clements v. Folse ex rel. Succession of Clements, 2001-1970 (La.App. 1 Cir. 8/14/02), 830 So.2d 307, 312, writ denied, 2002-2328 (La.11/15/02), 829 So.2d 437.

      . Id.

      . See exhibit A-l.

      . See exhibit A-2.


author: INLINE, J.

text:
    Albertha KEMP v. EAST BATON ROUGE CITY PARISH and Louisiana Workers’ Compensation Corporation.
    No. 2002 CA 2083.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.

      Terry Bonnie, Baton Rouge, Counsel for PlaintiffAppellant Albertha Kemp.
    Debra Talbot-Parker, Baton Rouge, Counsel for Defendants/Appellees East Baton Rouge Parish and LA Workers’ Compensation Corporation.
    Before: FOIL, McCLENDON, and KLINE , JJ.

      . Hon. William F. Kline Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   INLINE, J.

Appellant, Albertha Kemp, appeals the decision of the workers’ compensation judge dismissing her claim against appel-lees, East Baton Rouge City Parish and Louisiana Workers’ Compensation Corporation, having found that she did not carry her burden of proof that she suffered injury due to a work-related accident. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Albertha Kemp was employed as a cook for the Head Start program with the Baton Rouge City Parish (“the City”). According to Ms. Kemp, on December 7, 2000, while at work preparing snacks and putting bowls away, she slipped and fell and injured her back. She testified that as she was falling, she “hollered” for her fellow employees to come and help her. No one witnessed the fall. There was no evidence, other than her testimony, that Ms. Kemp reported the accident or her resultant back injury to her supervisor prior to January 8, 2001, when the incident report was prepared. There was also no evidence that Ms. Kemp sought immediate medical treatment for her injury as a result of her fah.

The next day after the alleged accident, on December 8, 2000, Ms. Kemp underwent oral surgery and was absent from work for several days. She returned to work on December 21, 2000 and also worked the next day. Afterwards, the Head Start program was closed for two weeks due to Christmas vacation. On January 8, 2001, when Ms. Kemp returned to work after the Christmas vacation, she reported the December 7, 2000 accident to her supervisor, Sylvia Williams, and reported that she had suffered back pain.

On February 12, 2001, Ms. Kemp filed a disputed claim for compensation with the Office of Workers’ Compensation (“OWC”) against appellees. She asserted that she injured her back by falling when she was replacing containers on a shelf. Ms. Kemp listed Ms. Williams and a fellow employee, Lorraine Kelly, as witnesses to the accident. A trial was held on the merits on January 30, 2002. At the trial, Ms. Kemp testified about the facts surrounding the incident and the injuries that resulted. She also testified about the facts surrounding the issue of a prior back injury. After Ms. Kemp’s case in chief, appellees moved for an | ¡¡involuntary dismissal, urging that Ms. Kemp had not satisfied her burden of proof. Ms. Kemp then requested that the WCJ grant her motion to amend the pleadings to allege an aggravation of a pre-existing back injury. The WCJ granted Ms. Kemp’s motion to amend the pleadings and to allege an aggravation of a preexisting injury. The WCJ then granted appellees’ motion for an involuntary dismissal.

The workers’ compensation judge (“WCJ”) issued a written judgment, signed on February 8, 2002, stating the following:

IT IS ORDERED, ADJUDGED, AND DECREED that the Claimant is not entitled to workers’ compensation benefits as the Claimant failed to prove that she sustained an accident within the course and scope of her employment with the City of Baton Rouge/Parish of East Baton Rouge as provided by La. R.S. 28:1201.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Claimant’s motion to amend the pleadings to allege an aggravation of a preexisting back injury, (following the Claimant’s case in chief and after the motion of the involuntary dismissal by the Defendants) is granted;
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that since Albertha Kemp, the Claimant was not injured within the course and scope of her employment with the City of Baton Rouge/Parish of East Baton Rouge, Head Start, she is not entitled to workers’ compensation benefits.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that an involuntary dismissal is granted and as such, Judgment is herein rendered in favor of the City of Baton Rouge/Parish of East Baton Rouge and Louisiana Workers’ Compensation Corporation, dismissing with prejudice all claims brought by Albertha Kemp.

Ms. Kemp appeals the WCJ’s findings and asserts the following assignments of error:

1. The Workers’ compensation Judge manifestly erred in finding that an accident did not occur on December 7, 2000.
2. The Workers’ Compensation Judge manifestly erred in not finding that the accident and injuries of December 7, 2000, was an aggravation of a previous accident (which required surgery in 1987);
8. The Workers’ Compensation Judge manifestly erred in not finding that the accident and injuries of December 7, 2000 was corroborated by medical reports;
4. The Workers’ Compensation Judge manifestly erred in ruling that Ms. Kemp was a non-credible person.

LAW AND DISCUSSION

Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. For an appellate court to reverse a trial court’s factual finding, it must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Furthermore, when factual findings are based on the credibility of witnesses, the factfinder’s decision to credit a witness’s testimony must be given “great deference” by the appellate court. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Thus, when there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, although the appellate court may feel that its own evaluations and inferences are as reasonable. Id.

In order for a claimant to be entitled to recover workers’ compensation benefits, he must prove, by a preponderance of the evidence, that a work-related accident occurred and that an injury was sustained. A claimant’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. Williams v. Wal-Mart Stores, Inc., 2000-1347, p. 4 (La.App. 1 Cir. 9/28/01), 809 So.2d 294, 298.

In workers’ compensation cases, a disability is presumed to be the result of the work-related accident if the claimant was in good health before the accident, and the symptoms of the disability appear after the accident and continue to manifest themselves. This presumption is available when sufficient medical evidence is introduced to show a reasonable possibility of a causal connection between the disability and the work-related accident, or that the | .¡nature of the accident raises a natural inference that such a causal connection exists. LeBlanc v. Cajun Painting Inc., 94-1609, p. 10 (La.App. 1 Cir. 4/7/95), 654 So.2d 800, 807, writs denied, 95-1706, 95-1655 (La.10/27/95), 661 So.2d 1349, 1350. Thus, when there is proof of an accident and a following disability, without an intervening cause, it is presumed that the accident caused the disability. Jackson v. Savant Insurance Company, 96-1424, p. 3 (La.App. 1 Cir. 5/9/97), 694 So.2d 1178, 1180. Moreover, the fact that a claimant does not realize or diagnose the full extent of his injury immediately after an accident should not bar him from recovery. Middleton v. International Maintenance, 95-0238, pp. 6-7 (La.App. 1 Cir. 10/6/95), 671 So.2d 420, 424, unit denied, 95-2682 (La.1/12/96), 667 So.2d 523.

Thus, in determining whether a worker has shown by a preponderance of the evidence that an injury-causing accident occurred in the course and scope of employment, the trier of fact is expected to focus on the issue of credibility because, absent contradictory circumstances and evidence, a claimant’s testimony is accorded great weight. Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992). The determinations by a workers’ compensation judge as to whether the claimant’s testimony is credible and whether the claimant has discharged his burden of proof are factual determinations and will not be disturbed upon review in the absence of manifest error or unless clearly wrong. Id.

At issue in the instant case is whether Ms. Kemp proved, by a preponderance of the evidence, that a work-related accident did occur and caused her injuries. The WCJ, when ruling, stated the following:

I have looked through the medical records, I have heard Ms. Albertha Kemp testify; and, quite frankly, I’m not sure if it’s forgetfulness or if there is prevarication in this case, but there is simply in my mind a lack of corroboration, and I don’t think the burden of proof has been met that an accident occurred in this case. Ms. Kemp testified. The medical records, [in] my estimation, don’t corroborate the occurrence of an incident. I especially note the MRI reports, the one that was done before and then after the accident. It very rarely happens in case[sic]. In this case, they’re almost identical.
And there’s also — the biggest problem in my mind is the fact that in November of 2000 there was a visit to the doctor. From the doctor reports, the complaints were very similar to the complaints |fithat Ms. Kemp now has concerning her symptoms, and she alleges that this accident, whether it was the cause of the symptoms or it was an exacerbation, either way there’s a problem in my mind.
There was a request that I find that 1208 was violated in this case. It’s a very difficult decision. And as I said, I’m not sure if it’s forgetfulness, prevarication, what the situation is, but there is definitely a problem with the credibility. And while I don’t think it rises to the level of the 1208 violation, I do think the questions concerning the credibility caused me to question whether an accident happened at all or whether what we have is simply continued problems as the result of a previous accident, especially noting the visits shortly before the alleged accident and where the complaints were almost the same. (Emphasis added.)

The record provides conflicting testimony and evidence of the events surrounding Ms. Kemp’s actions right after the alleged accident as well as Ms. Kemp’s actions during the period between the date of the accident and January 8, 2001, when Ms. Kemp’s incident report was prepared regarding the accident and the back injuries she sustained. Ms. Kemp testified that she developed back injuries as a result of her slip and fall incident on December 7, 2000, when she was preparing snacks and reaching for bowls.

The determinations as to whether Ms. Kemp’s testimony was credible, and whether Ms. Kemp had discharged her burden of proof are factual determinations that will not be disturbed on review in the absence of manifest error. In this case, the WCJ found that Ms. Kemp’s testimony was less than credible. Ms. Kemp testified that she was in extreme pain but did not seek any medical treatment for her back. Ms. Kemp initially denied that she had any previous back problems. Later, during cross examination, Ms. Kemp revealed that she had prior back surgery in 1987. Ms. Kemp however testified that she had no problems with her back thereafter. The medical records provided that Ms. Kemp was under the care of a neurosurgeon and an orthopaedic surgeon as recently as November 2000, a month prior to the instant accident, and that Ms. Kemp’s complaint was back pain. An MRI was performed in February of 2000 and another was performed in January of 2001, and the results appeared to be identical. As a result, the WCJ determined that no work-reláted accident was proven to cause injury to Ms. Kemp. Based upon a complete review of the record, we cannot say that the WCJ was clearly wrong in finding that Ms. Kemp did not prove, by a preponderance of the evidence, that she was injured in a |7work-related accident during the course and scope of her employment. As a result of this finding, we pretermit addressing the other asserted assignments of error.

CONCLUSION

For the above and foregoing reasons, the judgment of the WCJ dismissing Ms. Kemp’s claim for workers’ compensation benefits is affirmed. Costs associated with this appeal are assessed against Albertha Kemp.

AFFIRMED.