author: | .GUIDRY, J. h PARRO, J.,

text:
    Judith A. SCOTT v. WAL-MART STORES, INC. and Claims Management, Inc.
    No. 2003 CA 0858.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 23, 2004.

      Timothy S. Marcel, Luling, Counsel for Plaintiff/Appellee/Second Appellant Judith A. Scott.
    Frank A. Flynn, Lafayette, Counsel for Defendant/AppellantySecond Appellee Wal-Mart Stores, Inc.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   | .GUIDRY, J.

By this appeal, an employer seeks review of judgments in favor of a claimant finding her temporarily, totally disabled and awarding past and present benefits, penalties, and attorney fees. The claimant answered the appeal seeking an increase in her award of penalties and attorney fees.

FACTS AND PROCEDURAL HISTORY

On the night of October 10, 2000, while engaged in the course and scope of her employment as a customer service representative at Wal-Mart Stores, Inc. (Wal-Mart), the claimant, Judith A. Scott, fell after tripping over the corner of a pallet jack in the claims department of the store. At the time of her accident, Mrs. Scott was carrying an armful of folded boxes. She immediately reported the accident to her supervisor and was examined by a company physician, Michael L. Watkins, the following day. Mrs. Scott initially complained of injury to her elbows and her right knee as a result of the fall. Dr. Watkins diagnosed Mrs. Scott as having suffered a patella contusion to the right knee and released her to return to work with the restriction that she be allowed to remain sitting, only walking or standing to get something to eat or to go to the restroom. Mrs. Scott, however, chose not to return to work, but instead used her vacation time to stay off work until her next appointment with Dr. Watkins. Dr. Watkins performed a follow-up examination of Mrs. Scott on October 18, 2000, at which time he again released her to return to work but with no restrictions. Because she was still experiencing significant pain in her right knee, Mrs. Scott requested and was granted permission to seek consultation with an orthopedic specialist of her choice.

The orthopedist of her choice, Dr. Gary Guidry, first saw Mrs. Scott on November 17, 2000, for the pain associated with the injury to her right knee. After ordering an MRI of her right knee, Dr. Guidry diagnosed Mrs. Scott with 1 ^chondromalacia, but found she could continue working. Mrs. Scott continued to treat with Dr. Guidry through January 4, 2001, at which time he released her from his care. Several months later in May 2001, Mrs. Scott returned to Dr. Guidry complaining of a bump in the patella of her right knee. Dr. Guidry found that the knee was inflamed and related the diagnosis to Mrs. Scott’s workplace accident on October 10, 2000. Less than a month later Mrs. Scott returned to Dr. Guidry complaining of “pain referring down into her right leg.” Based on this complaint, Dr. Guidry suspected an injury to the lumbar spine and ordered an MRI of Mrs. Scott’s back, which revealed “L2-L3 disc protrusion of significant degree causing some canal stenosis.” Thereafter, Dr. Guidry began to treat Mrs. Scott for injury to her lumbar spine but authorized her to continue working until October 11, 2001, at which time he recommended that she stop working because of the epidural steroid injections she was receiving to treat her back pain. Mrs. Scott, however, was not working at the time Dr. Guidry recommended that she not return to work and had not worked at Wal-Mart since September 24, 2001.

On November 5, 2001, a claims adjuster for Claims Management Inc. (CMI), the company that administered workers’ compensation claims for Wal-Mart, notified Mrs. Scott that it would stop paying her workers’ compensation benefits as of that date because of a discrepancy in a doctor’s note she had submitted. Mrs. Scott filed a disputed claim for compensation on November 19, 2001, seeking wage benefits and medical treatment and disputing Wal-Mart’s assertion that she had violated La. R.S. 23:1208 and thereby forfeited her right to further compensation benefits. Named as defendants in the disputed claim were |4Wal-Mart Stores, Inc. and CMI. Wal-Mart and CMI answered Mrs. Scott’s disputed claim, denying the status and causation of Mrs. Scott’s injuries and averring that Mrs. Scott forfeited entitlement to any additional compensation benefits based on her alleged violation of La. R.S. 23:1208.

At the conclusion of the trial of this matter, the workers’ compensation judge (WCJ) ordered both sides to submit post-trial briefs. Subsequently, the WCJ issued a signed judgment in favor of Mrs. Scott, in which he found Mrs. Scott: (1) entitled to temporary total disability benefits from the date of termination to date; (2) entitled to medical benefits; and (3) had not violated La. R.S. 23:1208. The WCJ further found that Wal-Mart arbitrarily and capriciously handled Mrs. Scott’s claim and ordered it to pay $2,000 in penalties and an additional $2,000 in attorney fees.

Wal-Mart and Mrs. Scott filed motions for new trial. The WCJ denied Wal-Mart’s motion and granted Mrs. Scott’s motion for a new trial on the issue of the amount of attorney fees awarded. Following the new trial, the WCJ rendered judgment increasing Mrs. Scott’s attorney fees award from $2,000 to $10,000 and awarding her the costs of the transcription of all depositions and medical records. Wal-Mart suspensively appealed the underlying judgments, and Mrs. Scott answered the appeal seeking an increase in the amount of penalties assessed against Wal-Mart and additional attorney fees relative to the pending appeal.

ASSIGNMENTS OF ERROR

By this appeal, Wal-Mart contends that the WCJ committed the following errors in the judgments rendered:

Assignment of Error I/Issue I
The trial court committed manifest error when the court found plaintiff, Judith Scott, was entitled to workers’ compensation benefits when the plaintiff failed to carry the requisite burden of proof regarding the crucial medical eonnexity of the work accident and her low back condition.
| ^Assignment of Error II/Issue II
The trial court committed manifest error when it failed to give reasonable consideration to the court appointed IME’s findings on the crucial medical causation issue.
Assignment of Error III/Issue III
The trial court committed manifest error when the court found plaintiff, Judith Scott, was entitled to temporary total disability benefits.
Assignment of Error IV/Issue IV
The trial court committed manifest error 1) when it found Wal-Mart had not reasonably contraverted the claim for indemnity benefits and medical benefits and awarded penalties and 2) when it found Wal-Mart was arbitrary and capricious and awarded attorney’s fees, when there were substantial and legitimate disputes over the extent of work related injury and/or work related disability.
Assignment of Error V/Issue V
The trial court committed manifest error when it failed to find the plaintiff/appel-lee did not (sic) commit a violation of La. R.S. 23:1208 when plaintiff presented an alteration of doctor’s return to work slip to workers’ compensation adjuster.

DISCUSSION

It is a well-settled principle that the provisions of the workers’ compensation scheme should be liberally interpreted in favor of the worker. Bynum v. Capital City Press, Inc., 95-1395, pp. 5-6 (La.7/2/96), 676 So.2d 582, 586. In a workers’ compensation case, the claimant bears the initial burden of establishing the causal connection between the disability and the employment accident by a reasonable preponderance of the evidence. Quinones v. U.S. Fidelity and Guarantee Company, 93-1648, p. 6 (La.1/14/94), 630 So.2d 1303, 1306-1307.

The factual findings in a workers’ compensation case are subject to the manifest error 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. Whether a claimant has carried her burden of proof and whether testimony is credible are questions of fact to be determined by the workers’ compensation judge. Authement v. Wal-Mart, 02-2434, p. 6 (La.App. 1st Cir.9/26/03), 857 So.2d 564, 570. Asfrsuch, in order for an appellate court to reverse a workers’ compensation judge’s factual findings, it must find from the record that a reasonable factual basis does not exist for the findings and that the record establishes that the findings are clearly wrong. Lyons v. Terrebonne Parish School Board, 03-0325, p. 2 (La.App. 1st Cir.12/31/03), 868 So.2d 739, 740.

Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Williams v. Wal-Mart Stores, Inc., 00-1347, p. 4 (La.App. 1st Cir.9/28/01), 809 So.2d 294, 298.

With these principles of appellate review clearly in focus, we begin our discussion with Wal-Mart’s second assignment of error because its determination bears heavily on our resolution of assignments of error one and three. In their second assignment of error, Wal-Mart asserts that the WCJ committed manifest error in not giving greater weight to the opinion of the independent medical expert (IME).

As a general rule, the testimony of a treating physician should be accorded greater weight than that of a physician who examines a patient only once or twice. However, the treating physician’s testimony is not irrebuttable, and the trier of fact is required to weigh the testimony of all medical witnesses. Mosley v. Pennzoil Quaker State, 37,199, pp. 3-4 (La.App. 2nd Cir.7/23/03), 850 So.2d 1100, 1103, writ denied, 03-2412 (La.11/21/03), 860 So.2d 553. Still, La. R.S. 23:1123, which provides for the appointment of an IME when there is a conflict in the medical evidence, states that the report of the IME shall be prima facie evidence of the facts therein stated. This prima facie presumption should not require a greater amount of evidence to refute than any other prima facie presumption, but a mere 17contrary opinion is not alone sufficient to overturn it. Carlock v. Gross, 200 So.2d 353, 359 (La.App. 4th Cir.), writ refused, 251 La. 60, 202 So.2d 662 (1967). An IME’s medical conclusions should be given significant weight because the IME is an objective party. Nevertheless, the opinion of the IME is not conclusive, and the WCJ must evaluate all of the evidence presented in making a decision as to a claimant’s medical condition. Mosley, 37,199 at 4-5, 850 So.2d at 1103.

Based on the evidence in the record before us, it is clear that the WCJ credited the testimony and opinion of Dr. Guidry over that of the employer’s choice of orthopedist, Dr. Christopher Cenac, and the court-appointed IME, Dr. Jeffrey Fitter. Drs. Cenac and Fitter opined that Mrs. Scott’s back pain was not causally related to her workplace accident, that she had reached maximum medical improvement, and that she was able to return to her former employment with no restrictions.

Drs. Cenac and Fitter both seemed to place emphasis on the fact that none of the doctors treating Mrs. Scott relative to her workplace injury noted any complaints by Mrs. Scott of pain in her right leg, hip, or any radiating pain. However, as pointed out at trial, at her initial visit to Dr. Gui-dry on November 17, 2000, Mrs. Scott wrote on her medical questionnaire that she was seeing the doctor for pain in her right knee and leg. Further, Mrs. Scott testified that she had told both Drs. Gui-dry and Watkins that she had pain in her right thigh and hip following the accident. Finally, in the computer diary notes of the adjuster for CMI who handled Mrs. Scott’s case, it is noted that as early as October 24, 2000, Mrs. Scott had described her complaints to the adjuster as: “pulling feeling when she stands on it for any length of time. This is the right knee and the pull goes down and up the leg.” It is also documented in the adjuster’s notes that Mrs. Scott complained of her right leg locking and not bending.

Thus, considering the evidence in the record before us as a whole and the constraints of our standard of review, we reject Wal-Mart’s contention that the [ RWCJ erred in its decision not to give greater weight to the findings of the IME. The WCJ made a credibility determination, which cannot be reversed on appeal absent manifest error. Having found evidence in the record before us to support the WCJ’s determination, we find that his determination was not manifestly erroneous.

We now turn to Wal-Mart’s assignments of error one and three. Therein, Wal-Mart disputes the WCJ’s finding that Mrs. Scott’s injury is compensable as stemming from her work-related accident and that her back pain was related to her knee injury. We review these contentions in light of our determination of assignment of error number two.

The medical evidence in the record shows that Dr. Guidry opined that the L2-L3 level disc protrusion was casually related to Mrs. Scott’s workplace accident on October 10, 2000. In his deposition, Dr. Guidry acknowledged that Mrs. Scott had not made any complaints of radiating pain, back pain or pain anywhere other than her knee until more than six months after the accident. Mrs. Scott testified that she had complained to Dr. Guidry of a pulling sensation from her right knee up through her thigh and hip into her lower back, which was not fully documented by Dr. Guidry. She also testified that she complained of pain in her right hip and thigh to Dr. Watkins. Dr. Guidry believed that the pain in her right leg “could have masked symptoms that were related to a back problem.” He further stated that because the radiating pain Mrs. Scott complained of was in her upper thigh, he would associate that pain with a disc higher than the L4-L5 or L5-S1 levels. Dr. Guidry opined that Mrs. Scott was temporarily, totally disabled from working.

Also at trial, Mrs. Scott acknowledged having fallen to the ground at her son’s house in the late spring or early summer of 2001 when her “leg gave way” and she bruised her ribs; but there was some confusion as to the actual date the incident occurred. At trial, Mrs. Scott admitted that in her deposition she testified that the incident occurred between October 10, 2000, and May 1, 2001; however, |9on the witness stand, she testified that she had researched when the incident occurred and learned from her medical records that the incident occurred on May 27, 2001. She testified that the incident had occurred about three weeks before her June 13, 2001 visit to Dr. Guidry where he first notes her complaint of radiating pain in her right leg. She also stated that she informed Dr. Guidry of the incident but explained that Dr. Guidry did not document the incident in his medical notes because she did not “go to him for it.” Yet on further questioning by her attorney on redirect, Mrs. Scott stated that she saw Dr. Haydel the day after she had fallen at her son’s house, and it was pointed out that Dr. Haydel’s records indicated that he saw her on June 28, 2001, regarding her fall. The discrepancies regarding the accident at Mrs. Scott’s son’s house causes us some concern. However, based on our review of the record in its entirety, especially in light of the appropriate standard of review, we cannot say the WCJ was manifestly erroneous or clearly wrong in finding that Mrs. Scott proved causation and proved her entitlement to temporary, total disability benefits.

We now address Wal-Mart’s assignment of error number five regarding the WCJ’s failure to find that Mrs. Scott forfeited her right to receive workers’ compensation benefits based on the alteration of one of the doctor’s notes she submitted to the CMI claims adjuster. At trial, the testimony of the CMI claims adjuster who handled Mrs. Scott’s claim, Sue Hendrix-Popanz, was submitted via deposition. In her deposition, Mrs. Po-panz testified that Mrs. Scott had contacted her wanting to know why she had not been paid indemnity benefits for the date of October 10, 2001. Mrs. Popanz stated that she informed Mrs. Scott that she had not received a doctor’s note for that date. Mrs. Popanz then testified that Mrs. Scott told her that she had turned the doctor’s notes into Wal-Mart and had retained a copy for herself, so Mrs. Popanz asked Mrs. Scott to fax her copies of the doctor’s notes. On receiving the fax, Mrs. Popanz observed that the doctor’s note at issue stated that Mrs. Scott was to remain off of work until October 10, 2001, but | indetected that the note appeared to be altered. Mrs. Popanz testified that she then contacted Wal-Mart and Dr. Guidry’s office requesting copies of the note, on receipt of which she found that the actual date given on the note was October 9, 2001. At Mrs. Po-panz’s request, Dr. Guidry also submitted a letter to Mrs. Popanz stating that the correct date was October 9, 2001.

At trial, Mrs. Scott testified that she had contacted Mrs. Popanz regarding the payment of benefits owed to her but denied specifically asking for compensation for the date of October 10, 2001. She further testified that at that time, Mrs. Popanz informed her that she had no doctor’s notes on file excusing her from work and that Mrs. Popanz asked her to fax her all of the doctor’s notes of which she had copies. Mrs. Scott then stated that she had her husband fax the notes to Mrs. Popanz from her nephew’s fax machine; however, prior to his doing so, she laid the notes on a table and the note excusing her from work until October 9, 2001, got wet. She testified that she dried the paper, “went over the nine,” and then highlighted the date, “and it kind of smeared.” She fervently denied writing in the date, October 10, 2001.

The requirements for forfeiture of benefits under La. R.S. 23:1208 are that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment. Jim Walter Homes, Inc. v. Prine, 01-0116, p. 8 (La.App. 1st Cir.2/15/02), 808 So.2d 818, 824. This broadly worded statute encompasses false statements or misrepresentations made to anyone, including the employer, physicians or insurers, when made willfully or deliberately for the purpose of obtaining benefits. Western Sizzlin Steakhouse v. McDuffie, 02-0935, p. 4 (La.App. 1st Cir.3/28/03), 844 So.2d 355, 357, writ denied, 03-1147 (La.6/20/03), 847 So.2d 1236. A false statement, which is inconsequential to the present claim, may indicate that the statement was not willfully made for the purpose of obtaining benefits. Clearly, an inadvertent and inconsequential false statement would not result in forfeiture of | ^benefits. Newman v. Richard Price Construction, 02-0995, p. 5 (La.App. 1st Cir.8/8/03), 859 So.2d 136, 141. The issue of whether an employee forfeited her workers’ compensation benefits is one of fact, which is not to be reversed on appeal, absent manifest error. Ivy v. V’s Holding Company, 02-1927, p. 10 (La.App. 1st Cir.7/2/03), 859 So.2d 22, 30.

Although Mrs. Scott’s copy of what she said she sent to Mrs. Popanz and the copy received by Mrs. Popanz differ, it is not clear whether the alteration of the copy received by Mrs. Popanz was actually altered by Mrs. Scott, who, as noted earlier, did not fax the copy. The copy of the doctor’s note submitted into evidence by Mrs. Scott clearly supports her testimony of writing over the number “9,” is clearly distinguishable as a “9,” and has the date highlighted. However, the black and white fax image submitted by Wal-Mart as the faxed copy received by Mrs. Popanz clearly shows the number “10.” Based on his ruling, the WCJ evidently found Mrs. Scott’s testimony regarding this issue more credible. Based on the record before us, we cannot say that the WCJ erred in its findings regarding the alleged violation of La. R.S. 23:1208. Thus, we reject Wal-Mart’s contention that the WCJ erred in finding that Mrs. Scott did not violate La. R.S. 23:1208.

As for Wal-Mart’s final assignment of error regarding the assessment of attorney fees and penalties, we find merit in this contention, in part. Attorney fees, but not penalties, are recoverable under La. R.S. 23:1201.2 if an employer discontinues payment due and arising under the workers’ compensation act and such discontinuance is found to be arbitrary, capricious or without probable cause. Williams v. Rush Masonry, Inc., 98-2271, p. 7 (La.6/29/99), 737 So.2d 41, 45. Thus, the WCJ erred in assessing penalties against Wal-Mart under this provision.

Nevertheless, we reject Wal-Mart’s contention that the WCJ erred in assessing it with attorney fees. Arbitrary and capricious behavior consists of L ¿willful and unreasoning action, without consideration and regard for the facts and circumstances presented, or of seemingly unfounded motivation. Brown v. Texas-LA Cartage, Inc., 98-1063, pp. 8-9 (La.12/1/98), 721 So.2d 885, 890. Statutes providing for attorney fees are penal in nature and must be strictly construed. Thomas v. Wal-Mart, 02-1356, p. 12 (La.App. 1st Cir.5/9/03), 849 So.2d 592, 601. Whether the discontinuation of benefits warrants the imposition of attorney fees is a factual question that will not be disturbed on review in the absence of manifest error or unless clearly wrong. Augustus v. St. Mary Parish School Board, 95-2498, p. 13 (La.App. 1st Cir.6/28/96), 676 So.2d 1144, 1154.

Mrs. Scott was injured in October 2000. Wal-Mart terminated payment of benefits over a year later based on one off-work slip despite having on file medical information regarding her treatment. At the time of the termination, there was no conflicting medical evidence to justify terminating the benefits on the basis of causation. It was a permissible view, considering the totality of the evidence, for the WCJ to find that the discrepancy in the doctor’s note was an insufficient basis to terminate the payment of benefits. See Washington v. Lyons Specialty Company, 96-0263, p. 13 (La.App. 1st Cir.11/8/96), 683 So.2d 367, 376. Accordingly, we cannot say that the WCJ erred in finding that Wal-Mart had no articulable and objective reason to terminate the payment of benefits to Mrs. Scott. We also find no error in the amount of attorney fees awarded.

We now turn to Mrs. Scott’s request, in her answer to Wal-Mart’s appeal, for additional attorney fees for having to defend this matter on appeal. An increase in attorney fees is appropriate when the defendant appeals, obtains no relief, and the appeal has necessitated additional work for plaintiffs counsel. See Carignan v. Louisiana Compressor Maintenance Company, 02-0180, pp. 9-10 (La.App. 1st Cir.12/30/02), 836 So.2d 476, 483. Having found merit in Wal-Mart’s contention regarding the assessment of penalties by the WCJ, we must deny Mrs. Scott’s request for additional attorney fees for defending this matter on appeal.

| ^CONCLUSION

Accordingly, we reverse that portion of the WCJ’s judgment assessing penalties against Wal-Mart. In all other respects, the judgments are affirmed. All costs of this appeal are assessed to Wal-Mart.

REVERSED IN PART AND AFFIRMED IN PART.

CARTER, J., concurs.

PARRO, J., dissents for the reasons assigned.

h PARRO, J.,

dissenting.

The majority correctly observes that LSA-R.S. 23:1123 provides for the appointment of an independent medical examiner (IME) when there is conflicting medical evidence, and the report of the IME shall be prima fade evidence of the facts stated therein. This prima facie presumption should not require a greater amount of evidence to refute than any other prima facie presumption, but a mere contrary opinion is not alone sufficient to overturn it. Carlock v. Gross, 200 So.2d 353, 359 (La.App. 4th Cir.), writ refused, 251 La. 60, 202 So.2d 662 (1967). An IME’s medical opinion, although not conclusive, should be given significant weight because the IME is an objective party. Mosley v. Pennzoil Quaker State, 37,199 (La.App. 2nd Cir.7/23/03), 850 So.2d 1100, 1103, writ denied, 03-2412 (La.11/21/03), 860 So.2d 553.

After reviewing the record in this case, I am not convinced that Mrs. Scott satisfied her burden of overcoming the prima facie case established by the report of the IME. Dr. Guidry’s initial diagnosis was chondro-malacia, which he described as the wearing away of the undersurface of the kneecap. Despite this diagnosis and the complaints of right knee pain reported by Mrs. Scott one month post-accident, Dr. Guidry opined that Mrs. Scott could continue working. This opinion was in accordance with that of Dr. Watkins who examined her the day after the accident. Dr. Guidry went so far as to release Mrs. Scott 12from his care on January 4, 2001. It was not until approximately seven months post-accident that Mrs. Scott reported to Dr. Guidry that she was experiencing pain radiating down into her right leg, which led him to suspect an injury to her lumbar spine. A subsequent MRI of Mrs. Scott’s back revealed a significant disc protrusion at the L2-3 level.

The IME, like Wal-Mart’s choice of orthopedist, opined that Mrs. Scott’s back pain was not causally related to her workplace accident, she had reached maximum medical improvement, and she was able to return to her former employment without any restrictions. I feel that Dr. Guidry’s contrary opinion as to the causal relationship between the workplace injury and the back pain that manifested more than seven months after the accident was alone insufficient to overturn the prima facie presumption. See Carlock v. Gross, 200 So.2d 353. Furthermore, I do not find that any of the other evidence of record was sufficient to refute the prima facie presumption in this case. Accordingly, I respectfully dissent.

      . Dr. Guidry described chondromalacia as the wearing away of the undersurface of the kneecap. However, according to the Attorney’s Illustrated Medical Dictionary, the condition is described as the "softening of an articular cartilage, most commonly seen in the kneecap (patella).” 23 (Supp. Oct. 2003).

      . Dr. Guidry’s findings, as recorded in his May 16, 2001 medical note, actually stated that he found "evidence of instability of inflammation.” However, later, while being deposed, Dr. Guidry stated that the reference to "instability” was most likely a typographical error, because he did not recall ever documenting that Mrs. Scott had any instability in her knee.

      . Louisiana Revised Statutes 23:1201.2 was repealed by 2003 La. Acts, No. 1204 § 2.


source: Caselaw Access Project

author: | .GUIDRY, J.

license: Public Domain

text:
    Marshall MCDONALD, McDonald Investigations, Carolyn Bearden and Princess Investigations v. LOUISIANA STATE BOARD OF PRIVATE INVESTIGATOR EXAMINERS.
    No. 2003 CA 0773.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 23, 2004.
    Donald L. Kneipp, Monroe, Counsel for Plaintiffs/Appellants Carolyn Bearden and Princess Investigations.
    Celia R. Cangelosi, Baton Rouge, Counsel for Defendanf/Appellee Louisiana State Board of Private Investigator Examiners.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   | .GUIDRY, J.

Appellants, Carolyn Bearden and Princess Investigations (collectively Bear-den), appeal the district court’s judgment, granting the Louisiana State Board of Private Investigator Examiners’ (Board) exception raising the objection of prescription/peremption, and dismissing their petition for judicial review of an administrative decision. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

In April 2001, a client hired Marshall McDonald and McDonald Investigations (collectively McDonald) to perform a private investigation. Sometime after entering into an agreement with the client to perform investigative services, McDonald became ill and referred the work to Bear-den for completion. However, the client was not satisfied with the services provided by McDonald and Bearden, and the client filed a complaint with the Board. A formal administrative hearing was held, and in a decision issued on July 23, 2002, the Board revoked the licenses of McDonald and Bearden and ordered them to pay fines, as well as costs and fees incurred by the Board.

Thereafter, McDonald and Bearden filed a motion for rehearing. The motion for rehearing was submitted on written submissions of the parties, and an order was issued on September 17, 2002, denying McDonald and Bearden’s motion. Notice of the Board’s decision on the rehearing was thereafter mailed on October 1, 2002, and received by counsel for McDonald and Bearden on October 7, 2002.

McDonald and Bearden subsequently filed a petition in district court on November 6, 2002, seeking judicial review of the Board’s decision. The Board filed a peremptory exception raising the objection of prescription/peremption based on La. R.S. 49:964(B). Following a hearing on the exception, the district court signed a judgment granting the Board’s exception and dismissed McDonald and |3Bearden’s petition for review. Bearden now appeals this judgment, asserting that the district court erred in dismissing the petition on the basis of prescription.

DISCUSSION

Judicial review of an administrative adjudication is controlled by La. R.S. 49:964(B), which provides in part:

Proceedings for review may be instituted by filing a petition in the district court of the parish in which the agency is located within thirty days after mailing of notice of the final decision by the agency or, if a rehearing is requested, within thirty days after the decision thereon. (Emphasis added.)

It is well settled that in interpreting any statute, when the law is clear and unambiguous, the law shall be applied as written. Schackai v. Louisiana Board of Massage Therapy, 99-1957, p. 12 (La. App. 1st Cir.9/22/00), 767 So.2d 955, 962, writ denied, 00-2898 (La.12/8/00), 776 So.2d 464. Further, it is presumed that every word, sentence, or provision in the law was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were used. Bunch v. Town of St. Francisville, 446 So.2d 1357, 1360 (La.App. 1st Cir.1984). Conversely, it will not be presumed that the lawmaker inserted idle, meaningless, or superfluous language in the law or that it intended for any part or provision of the law to be meaningless, redundant, or useless. Bunch, 446 So.2d at 1360.

According to the clear language of the statutory provision quoted above, an appeal from an administrative decision, following a request for a rehearing, must be made within thirty days following the decision on the rehearing. The language in this clause does not specify, as it does in the previous clause relating to appeal from the final decision, that the thirty-day appeal period begins upon the mailing of notice of the agency’s decision. Therefore, keeping in mind the rules of interpretation as outlined above, the statutory provision clearly contemplates that |4unlike appeals from the final decision when no rehearing is requested, the period for bringing an appeal following a request for rehearing commences with the rendition of the decision on the rehearing, not upon the mailing of notice of the decision, or upon receipt of notice as Bearden argues. See Mayor and Council of Morgan City v. Louisiana Department of Environmental Quality, 604 So.2d 144, 148 (La.App. 1st Cir.1992).

Alternatively, Bearden argues that even if the statutory language is clear and unambiguous, applying the law as written would lead to absurd consequences, and reading this provision in pari materia with the other administrative procedural provisions, reveals this absurdity. Even if we reviewed this provision in conjunction with other related administrative procedural laws as Bearden urges, it would only reiterate the clear language expressed above and would not lead to any absurd consequences. In particular, La. R.S. 49:959(B), dealing with rehearings, also provides that “[i]f an application for rehearing shall be timely filed, the period within which judicial review, under the applicable statute, must be sought, shall run from the final disposition of such application.” (Emphasis added.) Therefore, based on this consistent approach the legislature undertook in outlining the procedure for rehearings and appeals in administrative proceedings, we find Bearden’s argument lacks merit.

Further, Bearden also argues that applying the clear language of the statute could result in a party losing their right to appeal before they are ever notified that a decision on the rehearing had been rendered. However, in this case, Bearden | ¿received notice on October 7, 2002, well before the thirty-day appeal period had expired, and therefore, this hypothetical argument also lacks merit.

Therefore, based on the clear and unambiguous language of La. R.S. 49:964(B), we find that Bearden was required to file the petition for review in the district court within thirty days of the Board’s decision on the request for the rehearing, or within thirty days following September 17, 2002. Because Bearden did not file the petition for review until November 6, 2002, the petition was untimely, and therefore, the district court properly granted the Board’s exception of prescription/peremption.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the district court and all costs of this appeal are to be borne equally by Carolyn Bearden and Princess Investigations.

AFFIRMED.

      . McDonald is not a party to the current appeal.

      . Bearden contends that La. R.S. 49:958 supports its position that applying the clear language of La. R.S. 49:964(B) would lead to absurd consequences. However, this provision, dealing with decisions and orders, merely states that a party must receive notice of any decision or order, but does not deal with appeal rights or procedures. Whether notice of the decision denying the rehearing was ever sent or received is not an issue in this appeal, as Bearden admits receiving notice of the decision on October 7, 2002.

      . We note that while this may be a valid argument if the constitutionality of the provision were at issue, or if in fact Bearden did not receive notice of the decision before the expiration of the appeal period, those circumstances are not present here.


author: I ¡¿DOWNING, J.

text:
    BARBER BROTHERS CONTRACTING v. Donald Ray YOUNG.
    No. 2003 CA 0747.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 23, 2004.
    Writ Denied May 7, 2004.

      David T. Butler, Baton Rouge, Counsel for Appellant Barber Brothers Contracting.
    Brian E. Blackwood, Baton Rouge, Counsel for Appellee Donald Ray Young.
    Before: PETTIGREW, DOWNING and McClendon, jj.
   I ¡¿DOWNING, J.

An employer appeals a judgment rendered in workers’ compensation court decreeing that the employee’s respiratory, sinus, and dermatitis conditions developed in the scope of his employment from his repeated exposure to asphalt fumes. The employer also appeals the award of indemnity benefits, penalties, and attorney fees. For the following reasons, we affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

Donald Ray Young worked on a road crew for Barber Brothers Contracting, LLC (Barber Bros.) off and on since 1989. He was hired the last time on March 9, 1998, and worked until he became ill on May 23, 2000. Young now has various maladies, including assorted respiratory problems such as asthma, shortness of breath, and other chronic pulmonary pathologies, as well as sinus, gastrointestinal and skin problems. After being treated at Earl K. Long Hospital, for a while, Young made a claim for workers’ compensation benefits. He continued treatment for over a year. During that time, he was not exposed to asphalt fumes, but still the symptoms persisted. Several physicians recommended that Young return to work and gave opinions that his illnesses had not been caused or aggravated by asphalt fumes. After receiving these reports, Barber Bros, suspended Young’s workers’ compensation benefits and filed a disputed claim form maintaining non-compensability for asphalt exposure. Young then filed his own disputed claim seeking benefits and indemnity.

This matter was heard June 20, 2002. Judgment was signed November 18, 2002. The workers’ compensation judge (WCJ) determined that Young’s respiratory, sinus, and dermatitis conditions were sustained during the scope of his employment, but that his gastrointestinal conditions were unrelated. Temporary total disability benefits were awarded for the week of May 23, 2000, until May 30, |32000 at the rate of $298.75/week. Supplemental earnings benefits were awarded from August 11, 2002 to the date of trial at the rate of $298.75/week totaling $13,443.75. Barber Bros, was awarded a credit for any medical expenses paid for the unrelated medical conditions. Barber Bros; was assessed with $2,000.00 in penalties and $2,000.00 in attorney fees because of its failure to pay medical expenses and an additional $2,000.00 in penalties and $2,000.00 attorney fees was awarded for its failure to reinstate Young’s indemnity benefits. Barber Bros, appealed, alleging that the trial court erred in finding that Young suffered a compensable claim in the scope of his employment, and also erred in awarding indemnity benefits and in awarding penalties and attorney fees.

DISCUSSION

Causation

In order for the employee to recover workers compensation benefits, it must be determined that the employment somehow caused or contributed to the disability, but it is not necessary that the exact cause be found. Walton v. Normandy Village Homes Assn. Inc., 475 So.2d 320, 324 (La.1985). If the employee suffered from a pre-existing medical condition, the employee may still prevail if he proves the accident aggravated, accelerated, or combined with the infirmity to produce the disability for which compensation is being paid. Peveto v. WHC Contractors, 93-1402, p. 2 (La.1/14/94), 630 So.2d 689, 691. The Louisiana Supreme Court recognized the existence of a presumption to aid plaintiffs in cases involving pre-existing conditions. Id. Specifically, when an employee proves that before the accident he had not manifested disabling symptoms, but commencing with the accident disabling symptoms appeared, and that medical or circumstantial evidence indicates a “reasonable possibility” of a causal connection between the accident and the activation of the disabling | condition, the employee’s work condition is presumed to have aggravated, accelerated or combined with his pre-existing disease to produce the disability. Id.

Barber Bros.’ first assignment of error alleges that the court erred in finding that Young proved his conditions arose out of the course and scope of his employment. Barber Bros, argues that Young did not carry his burden in establishing a causal link between the exposure and his condition. And even if the illness was preexisting, he did not prove that the condition was aggravated or accelerated by his duties in the scope of his employment. Barber Bros, contends that the trial court ignored the overwhelming medical evidence and opinions from physicians that Young’s symptoms could not be linked to his job as an asphalt paver. Barber Bros, also argues that the WCJ applied the wrong standard under Peveto because it presented overwhelming evidence that Young’s condition was not work-related and since none of Young’s physicians said it was work related.

In support of this, Barber Bros, offered the report of Dr. Robert Jones, a pulmonary physician with Tulane Medical Center who did not personally examine Young, but did make a report after reviewing his medical records. Dr. Jones said that asphalt fumes are not a cause of asthma, nor do they aggravate it in a sense of producing a long-term or indefinite worsening of the condition. He did concede that many irritating or odoriferous inhalants could cause some individual asthmatics to feel temporarily worse.

Barber Bros, also offered the report of Dr. Joseph R. Tamimie, of the Occupational Medical Clinic. Dr. Tamimie’s report stated Young’s exposure to asphalt fumes may have caused an upper respiratory irritation on one occasion but that it would be unlikely that exposure to asphalt would be the cause for his development of chronic upper respiratory problems. Also, Dr. Tamimie noted the fact that Young had not been exposed to asphalt for over a year and continued having symptoms supporting a conclusion that his chronic symptoms are not | .^associated with asphalt exposure. However, the report concluded, “Mr. Young should not have any further exposure to asphalt fumes or work with asphalt in the future, in that he obviously attributes many of his health problems to this type of work.”

The WCJ’s oral reasons stated that all the doctors agreed that the fumes from asphalt could have triggered respiratory, skin, and sinus problems. The WCJ recognized that Dr. Tamimie said that asphalt had been known to cause irritations of the eyes, nose and throat. The WCJ also noted that another pulmonary expert, Dr. Richard Hebert, reported that it was impossible to ascertain whether Young’s illness was initiated or aggravated by asphalt fumes, but anyone having bronchial or asthmatic symptoms would be susceptible to exacerbation by exposure to any type of inhaled irritant.

Young’s treating physician, Dr. Nnamdi A. Nwabueze, said asphalt had been implicated in respiratory illness, as well dermatitis and stomach ailments. He did not know if asphalt was the cause of Young’s respiratory problems, but stated that most likely something in his immediate environment triggers the attacks. He recommended that Young work in a clean environment.

Dr. Prem K. Menon, an allergist, reported that Young tested positive for allergic reactions to dust, mites, cat, dog allergens, feathers, various molds, grasses and trees. He could not determine if Young’s symptoms were initiated by asphalt fumes, but recommended that he not be further exposed.

Once the employee has established the presumption of causation, the opposing party bears the burden of producing evidence to prove that it is more probable than not that the work injury did not accelerate, aggravate, or combine with the pre-existing injury to produce his disability. Preveto, 93-1402, pp. 2-3, 630 So.2d at 691. Medical testimony, albeit significant, is not conclusive as to the issue of causation, which is generally the ultimate fact to be decided by the court | fiafter weighing all the evidence. Id. In light of the opinions of Dr. Menon and Dr. Nwa-bueze, and bearing in mind the tenet that workers’ compensation laws are to be construed liberally, See Id., we cannot say that the WCJ was manifestly erroneous in concluding that Young’s respiratory and dermatology problems arose from his repeated exposure to asphalt while working for Barber Bros.

It is well established that where there are two permissible views of the evidence, a fact finder’s choice between them can never be manifestly erroneous. Stobart v. State Through Department of Transportation and Development, 617 So.2d 880, 883 (La.1993). Thus, this assignment of error is without merit.

Indemnity Benefits

In its second assignment of error, Barber Bros.’ alleges that the WCJ erred in awarding indemnity benefits and argues that Frank Panepinto, the risk manager, testified that Young had been offered a number of light duty jobs and refused to take them. These jobs included traffic flagger, grade checker, road roller operator, street sweep operator, and gate monitor.

As discussed above, Dr. Menon and other doctors reported that Young should not be exposed to inhalant irritant materials including dust, molds, grasses, and asphalt. The WCJ found that Young was employable, but the jobs offered by Barber Bros, were all outdoors. We agree that these positions are outside and all involve being around the irritants Young is supposed to avoid. Accordingly, we cannot say that the WCJ was manifestly erroneous in making this determination. Thus, this assignment of error is without merit.

Penalties and Attorney Fees

Barber Bros.’ third assignment of error alleges that the WCJ erred in awarding $2,000.00 in penalties and $2,000.00 in attorney fees for its failure to pay indemnity benefits, and $2,000.00 in penalties and $2,000.00 in attorney fees for its failure to pay medicals.

|7The statutes providing for penalties and attorney fees are penal in nature and must be strictly construed. Patterson v. Long, 96-0191, p. 15 (La.App. 1 Cir. 11/8/96), 682 So.2d 1327, 1336. An assessment of penalties and attorney fees is proper unless the employee’s rights to benefits were reasonably controverted. Id. A claim is reasonably controverted if the employer’s factual and medical information reasonably counters that of the claimant’s. Seal v. Sewerage and Water Board of New Orleans, 03-0880, p. 8 (La.App. 4 Cir. 9/17/03), 857 So.2d 1065, 1070.

After a review of the entire record, we conclude that Barber Bros, did reasonably controvert the claim by making a reasonable effort to ascertain whether Young’s conditions were either caused or exacerbated by his employment. A doctor from the Occupational Medicine Clinic reported that Young could work within the medium category confines of the functional capacity evaluation, completed February 20, 2001. A pulmonary specialist reviewed Young’s medical records and reported that the asphalt fumes were not a cause of the asthma, and the recurrences, long after exposure indicated his condition was not related to acute toxic occupational illness. Barber Bros, relied on these reports. Dr. Robert Jones reported: “If Mr. Young presently suffers from bronchial asthma, its ongoing activity is relatable to his documented sensitivities to multiple common, ordinary allergens such as dust, mold and pollens. He did not acquire those sensitivities because of past asphalt exposures.” Dr. Jones further stated, “That he happened to be employed at the time does not create a presumption that it was an occupational illness. He had worked with asphalt for years without documented complaint or illness.”

This opinion was reinforced when Young’s conditions did not abate after not having been exposed to asphalt for over a year. Had Young’s other treating physicians averred that his conditions were definitely caused from the asphalt | Sfumes, our position might be different. However, in light of the conflicting medical evidence, we conclude that Barber Bros, reasonably controverted this claim and accordingly, it was error for the WCJ to assess attorney fees and penalties against the employer.

DECREE

For the reasons stated herein, the judgment of the WCJ granting Donald Ray Young compensation benefits for his work-related injury is affirmed. However, the WCJ was manifestly erroneous in ruling that Barber Bros, violated La.R.S. 28:1201(E) and La.R.S. 23:1203(E), as the record does not support that ruling. Accordingly, that portion of the judgment awarding penalties and attorney fees is hereby reversed. In all other respects, the judgment of the Office of Workers’ Compensation is affirmed. The costs of this appeal are assessed against Barber Brothers Contracting, LLC.

AFFIRMED IN PART AND REVERSED IN PART.

      . Young suffers from a persistent rash called Lichen Simplex Chronicus.


author: J^MCCLENDON, J. | ^OWNING, J.,

text:
    LANE MEMORIAL HOSPITAL v. Sheila Gaspard GAY.
    No. 2003 CA 0701.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 23, 2004.

      J. Douglas Sunseri, Metairie, Jean-Louis Lemoine, Lafayette, Counsel for Plaintiffs/Appellants Lane Memorial Hospital and Louisiana Hospital Association-Workers’ Compensation Group Self-Insurance Fund.
    Charles R. Davoli, Baton Rouge, Counsel for Defendant/Appellee Sheila Gaspard Gay.
    Before: PETTIGREW, DOWNING, and McClendon, jj.
   J^MCCLENDON, J.

The salient issue raised on appeal in this workers’ compensation case is whether, pursuant to LSA-R.S. 23:1121, an employer can require an employee to submit to a second opinion examination by a physician of the employer’s choice. Finding it cannot, we affirm the judgment of the Office of Workers’ Compensation.

In June of 1991, while working as a phlebotomist at Lane Memorial Hospital, Sheila Gaspard Gay sustained a work-related injury. Gay has received weekly indemnity benefits since June 1991 and has received extensive medical treatment for alleged complications involving blood clots, thrombosis, and other blood flow problems in various parts of her body.

In November of 2001, Lane Memorial Hospital filed a disputed claim for compensation, seeking a judicial determination of the classification of indemnity benefits to which Gay is entitled and requesting a second opinion examination of Gay by Dr. Watts Webb, a thoracic and vascular surgeon, pursuant to LSA-R.S. 23:1121. On March 6, 2002, Lane Memorial Hospital filed a motion to compel Gay to submit to a physical examination by Dr. Watts Webb. Gay filed an opposition to the employer’s motion to compel and requested sanctions against Lane Memorial Hospital pursuant to LSA-C.C.P. art. 863. After hearing the matter, the workers’ compensation judge denied the motion to compel and awarded Gay $3,000 in attorney’s fees. Lane Memorial Hospital appeals.

Initially, Lane Memorial Hospital urges on appeal that the workers’ compensation judge erred in denying its motion to compel Gay’s physical ^examination by Dr. Webb. LSA-R.S. 23:1121 A governs the employer’s right to seek medical examination of an injured employee and provides as follows:

A. An injured employee shall submit himself to an examination by a duly qualified medical practitioner provided and paid for by the employer, as soon after the accident as demanded, and from time to time thereafter as often as may be reasonably necessary and at reasonable hours and places, during the pendency of his claim for compensation or during the receipt by him of payments under this Chapter. The employer or his workers’ compensation carrier shall not require the employee to be examined by more than one duly qualified medical practitioner in any one field or specialty unless prior consent has been obtained from the employee.

The record reflects that Dr. David Depp, a thoracic and cardiovascular surgeon, treated Gay for approximately four years beginning on September 10, 1991. Dr. Depp performed surgery on Gay in 1993 and 1994. Drs. Jon V. Schellack and John Frusha of Vascular Surgery Associates of Baton Rouge, both thoracic and vascular surgeons, began treating Gay in 1995 and continued to treat Gay at the time of the hearing herein. In late 1996, Dr. Schellack recommended that Gay seek another opinion to determine whether Gay was eligible for an experimental surgery by Dr. David B. Roos, a vascular surgeon in Denver, Colorado. In November of 1996, Dr. Roos performed an experimental surgical procedure on Gay. Gay continued her treatment with Drs. Schellack and Frusha after returning from surgery and treatment in Colorado. The workers’ compensation judge made the factual determination that each of these thoracic and vascular surgeons was chosen by the employer. This conclusion is clearly supported by the record and is not manifestly erroneous. See Stobart v. State, Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993).

[4Lane Memorial Hospital urges that Gay treated with Drs. Schellack and Fru-sha for over forty examinations from 1995 to present and, as such, Drs. Schellack and Frusha are Gay’s “de facto” treating physicians in the field of thoracic and vascular surgery. The employer notes that there have been no second opinion examinations pursuant to LSA-R.S. 23:1121 A by a thoracic and vascular surgeon selected by Lane Memorial Hospital during this time period. Lane Memorial Hospital asserts that, since Drs. Schellack and Frusha became the employee’s “de facto” physicians in the field of thoracic and vascular surgery, it has the right to compel a second opinion examination by a specialist, of the employer’s choice, in the field of thoracic and vascular surgery. We disagree.

In Smith v. Southern Holding, Inc., 02-1071 (La.1/28/03), 839 So.2d 5, the Louisiana Supreme Court reviewed the statutory provisions of LSA-R.S. 23:1121 and held 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, 02-1071 at p. 8, 839 So.2d at 10. The court specifically noted that LSA-R.S. 23:1121 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, 02-1071 at p. 9, 839 So.2d at 11. In this case, the Louisiana Supreme Court rejected the jur-isprudentially recognized de facto selection of a physician pursuant to LSA-R.S. 23:1121 as set forth in such cases as Moore v. Sanderson Farms, Inc., 95-2042 (La.App. 1 Cir. 5/10/96), 674 So.2d 478, wit denied, 96-1399 (La.9/13/96), 679 So.2d 106, and Guillotte v. Dynamic Offshore Contractors, 628 So.2d 234 (La.App. 3 Cir. 1993). Chauvin v. Southern Technology & Services, Inc., 02-1871, p. 5 (La.App. 1 Cir. 6/27/03), 858 So.2d 519, 522. The supreme court, applying the rules of strict construction, held that the statute does not recognize the concept of de facto selection, rather an employee has the right to choose one treating physician regardless of treatment by the employer’s physician. Therefore, Lane Memorial Hospital’s contention that Dr. Schellack became Gay’s de facto physician must fail.

Louisiana Revised Statutes 23:1121 A provides that “[t]he employer or his workers’ compensation carrier shall not require the employee to be examined by more that one duly qualified medical practitioner in any one field or specialty unless prior consent has been obtained from the employee.” (Emphasis added.) Therefore, an employer may compel examination of an injured employee by only one physician in each field. The statutory provision provides no exception for length of treatment or complexity of condition as asserted by Lane Memorial Hospital. See Smith, 02-1071 at p. 9, 839 So.2d at 11. Herein, Lane Memorial Hospital had already chosen a thoracic and vascular surgeon and it was not Dr. Webb. Therefore, it may not compel Gay to submit to examination by Dr. Webb, and the workers’ compensation judge correctly denied the employer’s motion to compel.

Lane Memorial Hospital also urges on appeal the workers’ compensation judge erred in imposing sanctions against it pursuant to LSA-C.C.P. art. 863. Article 863 authorizes a court to impose sanctions upon an attorney who signs pleadings without making an objectively reasonable inquiry into the facts and law. Goldbach v. Atchley, 01-616, p. 21 (La.App. 5 Cir. 11/27/01), 801 So.2d 1217, 1228, writ denied, 02-0500 (La.5/10/02), 815 So.2d 840. That provision seeks to strike a balance between the need to curtail abuse of the legal system and the need to encourage creativity and vitality in the law. Penton v. Clarkson, 93-0657, p. 11 (La.App.1 Cir. 3/11/94), 633 So.2d 918, 925. A trial court’s factual determination that LSA-C.C.P. art. 863 was, or was not, violated is reviewed on appeal pursuant to the “manifest error” or “clearly wrong” standard. Maxie v. McCormick, 95-1105, p. 5 (La.App. 1 Cir. 2/23/96), 669 So.2d 562, 565.

Herein, the record reflects that the employer submitted the issue present herein to the workers’ compensation judge in a motion to compel in 1999. At that time, the workers’ compensation judge denied the employer’s motion to compel. Subsequently, both this court and the Louisiana Supreme Court denied the employer’s applications for writs. At the hearing on the motion at issue herein, the workers’ compensation judge stated that she did not know why the employer had raised the same argument as it did in 1999 with no change in the grounds therefore, indicating that she felt strongly that the employer was not acting in good faith in bringing its motion. Considering the facts and circumstances of this case, we do not believe that the workers’ compensation judge manifestly erred by imposing sanctions.

Finally, Lane Memorial Hospital alleges the imposition of a sanction of $3,000 in the form of attorney’s fees is clearly excessive. Article 863 authorizes an award of “reasonable” and not necessarily actual attorney’s fees. The goal to be served by imposing sanctions is not wholesale fee- shifting, but correction of litigation abuse. Joyner v. Wear, 27,631, p. 14 (La.App. 2 Cir. 12/6/95), 665 So.2d 634, 642, writs denied, 96-0040, 96-0042 (La.2/28/96), 668 So.2d 370. Four factors have evolved that must be considered in arriving at an appropriate sanction award: the conduct being punished or sought to be deterred by the sanction; the expenses or costs caused by the violation of the rule; the reasonableness of those costs or expenses as opposed to the result of delay in seeking court intervention; and 17the least severe sanction adequate to achieve the purpose of article 863. Dubois v. Brown, 01-0816, p. 4 (La.App. 1 Cir. 5/10/02), 818 So.2d 864, 867, writ denied, 02-1654 (La.10/14/02), 827 So.2d 421. Once the trial court finds a violation of article 863 and imposes sanctions, the determination of the type and/or the amount of the sanction is reviewed on appeal utilizing the “abuse of discretion” standard. Connelly v. Lee, 96-1213, p. 5 (La.App. 1 Cir. 5/9/97), 699 So.2d 411, 414, writ denied, 97-2825 (La.1/30/98), 709 So.2d 710.

Applying these factors to the case before us, we find that the workers’ compensation judge sought to deter and punish conduct that required her time as well as the time and money of the claimant and lacked any purpose in moving the case forward. The workers’ compensation judge, in her discretion, determined that $3,000 was an adequate sanction under the facts of this case to achieve the purpose of LSA-C.C.P. art. 863. After a thorough review of the record, we cannot say that the workers’ compensation judge abused her discretion in awarding $3,000 in sanctions in this case.

Gay filed an answer to this appeal, requesting additional attorney’s fees for work performed in defending this appeal. Rule 2-19 of the Uniform Rules— Courts of Appeal provides, “The court may award damages for frivolous appeal in civil cases as provided by law.” Damages for a frivolous appeal are awarded pursuant to LSA-C.C.P. art. 2164, which provides that an appellate court may award damages for frivolous appeal when there is no serious legal question, when the appeal is taken solely for | sthe purpose of delay, or when it is evident that the appellant’s counsel does not seriously believe in the position he advocates. Cortes v. Lynch, 02-1498, p. 14 (La.App. 1 Cir. 5/9/03), 846 So.2d 945, 954; Johnson v. Drury, 01-833, p. 4 (La.App. 5 Cir. 12/12/01), 806 So.2d 694, 696. The courts have been very reluctant to grant damages under this article, as it is penal in nature and must be strictly construed. Christoffer v. New Orleans Fire Dep’t, 99-2658, p. 4 (La.App. 4 Cir. 3/15/00), 757 So.2d 863, 866, writ denied, 00-1413 (La.6/30/00), 766 So.2d 543. Rather, appeals are favored, and damages for frivolous appeal are granted only when clearly due. Charleston v. Berry, 97-2527, p. 10 (La.App. 1 Cir. 12/28/98), 723 So.2d 1069, 1075.

Although we have determined that this appeal lacks merit, we cannot say that Lane Memorial Hospital’s counsel did not seriously believe the position he advocated, which was adversely impacted by Smith v. Southern Holding, Inc., 02-1071 (La.1/28/03), 839 So.2d 5, jurisprudence rendered after the appeal was taken. Therefore, damages for frivolous appeal are not warranted. We, therefore, deny Gay’s request for damages for frivolous appeal.

For the foregoing reasons, we affirm the judgment of the Office of Workers’ Compensation. Costs are assessed against Lane Memorial Hospital.

AFFIRMED.

DOWNING, J., concurs.

| ^OWNING, J.,

concurs and assigns reasons.

I agree with the majority’s analysis and result where it concludes that Lane Memorial Hospital cannot compel Ms. Gay to submit to a second opinion medical examination by a physician of its choice. And while I agree that additional attorney fees should not be awarded in favor of Ms. Gay, I believe the analysis is misdirected.

By answer to appeal Ms. Gay claims that her counsel “will be entitled to additional attorney fees for the representation of Ms. Gay in this appeal.” Nowhere in her answer or in her brief does Ms. Gay suggest “frivolous appeal” as the basis for these additional attorney fees. Rather, she cites cases that authorize additional attorney fees where statutory attorney fees were awarded at the trial level. And, as this court recently stated in Cade v. Safety Council of Louisiana Capital Area, 03-0430, pp. 6-7 (La.App. 1 Cir. 12/31/03), 868 So.2d 744, 748, “[a]n increase in attorney’s fees in workers’ compensation cases is generally allowed when the defendant appeals and obtains no relief on appeal, the appeal necessitates additional work on the part of appellee’s attorney, and the appel-lee properly requests such relief.” This is apparently a jurisprudentially developed rule, as additional attorney fees on appeal are not specifically authorized under La. R.S. 23:1201. And this standard is a different one than the one employed for frivolous appeal, as discussed in the majority opinion.

Ijn every case where attorney fees were increased under the standard outlined in Cade, however, such fees were increased only after attorney fees were previously awarded pursuant to specific subject-related statutory authorization. Here, the worker’s compensation judge awarded attorney fees as sanctions under La. C.C.P. art. 863 D for violation of the attorney’s imputed certification that “he has read the pleading; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact; that it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” Specifically, rather than waiting to appeal, Lane Memorial Hospital raised in a second motion to compel the identical issue with identical arguments it had previously raise and over which the workers’ compensation judge had ruled.

In the appellate court, conduct similar to that giving rise to sanctions under La. C.C.P. art. 863 is specifically governed by La. C.C.P. art. 2164, which allows damages for frivolous appeal. As the majority observes, the court of appeal may award damages for frivolous appeal “when there is no serious legal question, when the appeal is taken solely for the purpose of delay, or when it is evident that the appellant’s counsel does not seriously believe in the position he advocates.”

Accordingly, I would not apply the standard outlined in Cade for an increase in an award of- attorney fees granted pursuant to La. C.C.P. art. 863 even though attorney fees were awarded in this workers’ compensation matter. I, therefore, agree that Ms. Gay is not entitled to an increase in attorney fees in the Court of Appeal.

13Pamages for frivolous appeal under La. C.C.P. art. 2164 would the appropriate claim. But Ms. Gay made no such claim or assignment of error. Nonetheless, in the interest of justice, the majority has construed the request for attorney fees as a claim for frivolous appeal even though Ms. Gay has not requested that we award attorney fees for filing a frivolous appeal. The majority’s result in this regard is correct. Accordingly, I respectfully concur.

      . Although the injury occurred in 1991, Gay’s entitlement to benefits apparently has not yet been litigated.

      . LSA-R.S. 23:1121 was amended by Acts of the Louisiana Legislature, Act 866, effective August 15, 2003. These amendments do not impact the outcome of the instant case. Furthermore, LSA-R.S. 23:1121 A was not changed by the 2003 amendments.

      . In support of its answer to the appeal, Gay cites, in her brief, the cases of Gallien v. Winn-Dixie, 685 So.2d 531 (La.App. 3 Cir.1996) and Hickman v. Allstate Timber Co., 94-1275 (La.App. 3 Cir. 4/5/95), 653 So.2d 154. These cases awarded attorney’s fees pursuant to LSA-R.S. 23:1201. That statutory provision imposes penalties and attorney’s fees when an employer does not reasonably controvert a claim or arbitrarily, capriciously and without probable cause fails to pay a claim or discontinues payment of claims due. In this instant case, a motion to compel was the only matter before the workers' compensation judge. Therefore, LSA-R.S. 23:1201 does not apply herein. Accordingly, we will construe Gay’s answer to the appeal as a request for attorney's fees for a frivolous appeal pursuant to LSA-C.C.P. art. 2164.


author: LMcDONALD, J.

text:
    Budd PULLEN v. RISKY BUSINESS TRANSPORTATION, INC., and Holloman Transportation.
    No. 2003 CA 0644.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 23, 2004.
    Alice Estill, Baton Rouge, Counsel for Plaintiff/Appellee Budd Pullen.
    Michael Hyman, Baton Rouge, Counsel for Defendant/Appellant Holloman Transportation, Inc.
    Before: WHIPPLE, KUHN, and McDonald, jj.
   LMcDONALD, J.

This is an appeal from a judgment rendered by the Office of Workers’ Compensation, District 6S. The plaintiff, Brad Pullen, filed a disputed claim for compensation against Risky Business Transportation, Inc. (a defunct company by the time of trial), and Holloman Transportation, Inc. (the only defendant at trial), which leased trucks from Risky Business. Mr. Pullen asserted that he was injured in the course and scope of his employment and that his employer failed to pay his past medical expenses and workers’ compensation benefits. Mr. Pullen sought payment of his medical expenses, workers’ compensation benefits, and any other benefits to which he was entitled. Hollo-man Transportation filed an exception of prescription, asserting that the claim was prescribed. In its pre-trial statement Holloman Transportation asserted that Mr. Pullen was not its employee on the date of the injury.

At the start of the trial, the workers’ compensation judge deferred ruling on the exception of prescription. After trial on the merits, the workers’ compensation judge ruled in favor of Mr. Pullen and against Holloman Transportation, denying the exception of prescription, finding that Mr. Pullen was injured in the course and scope of his employment, and finding that Holloman Transportation was Mr. Pullen’s statutory employer. The workers’ compensation judge awarded Mr. Pullen past due medical benefits in the amount of $9,052.73; past due indemnity benefits in the amount of $266.67 per week from May 3, 1995, to September 15, 1995; $2,000.00 in penalties for failure to timely pay indemnity benefits; $2,000.00 in penalties for failure to timely pay medical expenses; and $5,000.00 in attorney fees. All costs were assessed against Holloman Transportation.

IsHolloman Transportation appealed the judgment, and Mr. Pullen filed an answer to the appeal. Holloman Transportation’s appeal was dismissed by this court for failure to timely file a brief, pursuant to Uniform Rules — Courts of Appeal Rule 2-8.6. Holloman Transportation filed writs with the Louisiana Supreme Court, which were denied. Brad Pullen v. Risky Business Transportation, 2003-0C-2011 (La.12/19/03), 861 So.2d 570. Thus, the only issues before this court are those contained in Mr. Pullen’s answer to the appeal.

In his answer to the appeal, Mr. Pullen prays that the judgment be modified to increase the amount of punitive damages awarded, that the judgment be affirmed in all other aspects, that he be awarded additional attorney fees for the defense and opposition to the appellant’s appeal, and that appellant be condemned to pay all court costs.

After a thorough review of the record, we affirm the trial court judgment and decline to increase the punitive damages against Holloman Transportation, as we find the trial court’s punitive damage award is adequate.

In regard to additional attorney fees for the appeal work, we note that Mr. Pullen’s answer to the appeal consists of one and a half-pages. Thus, we find an award of an additional $500.00 to Mr. Pullen and against Hollomon Transportation for attorney fees is appropriate, and we amend the judgment accordingly.

Thus, in accordance with Uniform Rules — Courts of Appeal Rule 2-16.1.B, the judgment is affirmed as amended. Costs of this appeal are assessed against Holloman Transportation.

AFFIRMED, AS AMENDED.


author: 1 .CARTER, C.J.

text:
    STATE of Louisiana v. Elroy J. FAUL.
    No. 2003 KA 1423.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 23, 2004.

      Mark Chiasson, Thibodaux, for Appellee, State of Louisiana.
    Holli Herrle-Castillo, Marrero, for Appellant, Elroy J. Faul.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   1 .CARTER, C.J.

The defendant, Elroy J. Faul, was charged by bill of information with one count of sexual battery, a violation of LSA-R.S. 14:43.1. He pled guilty and was sentenced to five years at hard labor without benefit of probation, parole, or suspension of sentence. Additionally, he was ordered to comply with the sex offender notification requirements of LSA-R.S. 15:542. The trial court denied the defendant’s motion to reconsider sentence. The defendant now appeals.

FACTS

The defendant pled guilty, therefore there was no trial testimony concerning the defendant’s crime. However, the trial court stated the defendant was charged with having sexual contact with a victim more than three years younger than the defendant and younger than fifteen years of age. The trial court indicated the alleged sexual contact was that the defendant had “used [his] penis and touched [the victim].” The defendant acknowledged that by pleading guilty, he was admitting the truth of the charge against him.

DISCUSSION

In his sole assignment of error, the defendant contends the sentence imposed is excessive. Initially, we address the State’s argument that review of the assignment of error is barred by LSA-C.Cr.P. art. 881.2 A(2).

Louisiana Code of Criminal Procedure article 881.2 A(2) provides:

The defendant cannot appeal or seek review of a sentence imposed in conformity with a. plea agreement which was set forth in the record at the time of the plea.

| .This article must be strictly and narrowly construed, with any ambiguity resolved in favor of the defendant. State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, 800. Criminal statutes are presumed valid and are given a genuine construction according to the fair import of their words, taken in their usual sense, in context and with reference to the purpose of the provision. LSA-R.S. 14:3; Williams, 800 So.2d at 800. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. LSA-C.C. art. 9; State v. Gomez, 00-0566 (La.1/17/01), 778 So.2d 549, 553.

The plain language of LSA~C.Cr.P. art. 881.2 A(2) bars appellate review only when the plea agreement is set forth in the record at the time of the defendant’s plea. Our review of the record in the instant case reveals that during the Boykin colloquy, the trial court asked the defendant whether, in exchange for his guilty plea, anyone made any promises to him, other than “the potential plea agreement.” The defendant responded in the negative. After the trial court accepted the defendant’s guilty plea, the State informed it that the victim’s mother agreed with the plea bargain. The trial court then imposed sentence. Nothing further regarding the plea agreement was set forth in the record at the time of the defendant’s plea.

LAfter careful review, we agree with the State that the existence of a plea agreement was set forth in the record at the time of the defendant’s plea. However, that plea agreement was not set forth in the record with any particularity. Without specific reference to an agreed-upon sentence in the record at the time of the plea, LSA-C.Cr.P. art. 881.2 A(2) does not bar appellate review of the sentence imposed. See State v. Raymond, 97-0202 (La.App. 1 Cir. 2/20/98), 708 So.2d 1156, 1157. Accordingly, we will address the merits of the defendant’s argument.

The defendant pled guilty to sexual battery, a violation of LSA-R.S. 14:43.1. Whoever commits the crime of sexual battery shall be punished by imprisonment, with or without hard labor, without benefit of parole, probation, or suspension of sentence, for not more than ten years. LSA-R.S. 14:43.1 C. The defendant was sentenced to five years at hard labor without benefit of probation, parole, or suspension of sentence. The defendant now contends the trial court failed to consider the factors of LSA-C.Cr.P. art. 894.1 in imposing sentence and also argues the five-year sentence is constitutionally excessive.

Louisiana Code of Criminal Procedure article 894.1 sets forth items that must be considered by the trial court before imposing sentence. The trial court need not recite the entire checklist of article 894.1, but the record must reflect that it adequately considered the criteria. In light of the criteria expressed by article 894.1, a review for individual excessiveness should consider the circumstances of the crime and the trial court’s stated reasons and factual basis for its sentencing decision. State v. Hurst, 99-2868 (La.App. 1 Cir. 10/3/00), 797 So.2d 75, 83, writ denied, 00-3053 (La.10/5/01), 798 So.2d 962.

Article I, section 20, of the Louisiana Constitution of 1974 prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant’s constitutional right against excessive punishment and is subject to appellate review. Generally, a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, it is so disproportionate as to shock one’s sense of justice. A trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion. Hurst, 797 So.2d at 83.

During the Boykin colloquy, the trial court informed the defendant that he was alleged to have had sexual contact with a victim younger than fifteen years of age and more than three years younger than himself. The trial court further informed the defendant that he was alleged to have “used [his] penis and touched [the victim].” The defendant admitted the truth of the charge against him by pleading guilty.

At the hearing on the motion to reconsider sentence, the defendant indicated he was aware that the State had been prepared to present the defendant’s own au-diotaped statement against him. In the statement, the defendant admitted rubbing his penis on the victim’s vagina and admitted rubbing the victim’s buttocks with his hands. The trial court denied the | ^motion to reconsider sentence, noting the sentence in the matter was based, in part, on “the age of the victim, the age of [the defendant] relative to the victim, and the situation [the defendant] [was] in.”

A thorough review of the record reveals the trial court adequately considered the criteria of article 894.1 and did not manifestly abuse its discretion in imposing the sentence herein. See LSA-C.Cr.P. art. 894.1 B(2) and LSA-C.O.P. art. 894.1 B(21). Additionally, the sentence imposed was not grossly disproportionate to the severity of the offense, and thus, was not unconstitutionally excessive.

CONVICTION AND SENTENCE AFFIRMED.

      . We note that the appellate record does contain further evidence _ regarding the plea agreement. The record includes a document captioned "Felony Sentencing,” which was signed by the trial court two days after it accepted the defendant's plea. That document indicates that the trial court imposed sentence "[i]n accordance with an agreement between the defendant and the State.” Additionally, the defendant's pro se motion to reconsider sentence sets forth that defense counsel originally advised the defendant that his sentence would not exceed three years, but later the agreement changed to five years. This documentation, however, was not part of the record at the time of the defendant’s plea. Therefore, strictly construing LSA-C.Cr.P. art. 881.2 A(2) as we must, these documents have no bearing on whether appellate review is precluded.


author: I .DOWNING, J.

text:
    CITY OF BATON ROUGE, Parish of East Baton Rouge v. JOHNCA PROPERTIES, L.L.C.
    No. 2003 CA 0632.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 23, 2004.
    Writ Denied May 7, 2004.

      Robert Abbott, III, Baton Rouge, Counsel for Appellee/Plaintiff City of Baton Rouge, Parish of East Baton Rouge.

      Donald G. Cave, Craig S. Watson, Baton Rouge, Counsel for Appellant/Defendant Johnea Properties, L.L.C.
    Before: PETTIGREW, DOWNING and McClendon, jj.
   I .DOWNING, J.

In this matter, the City of Baton Rouge/Parish of East Baton Rouge (City/Parish) expropriated property belonging to Johnea Properties, L.L.C. (Johnea). After a trial on the merits, the district court entered judgment awarding Johnea damages in excess of the amount deposited into the court, attorney fees, expert witness fees, costs and interest. Johnea appeals this judgment, challenging the date of the taking, the extent of the taking, the amount of compensation, and the amount of the attorney fee award and expert witness fee awards. For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

In its opinion entitled City of Baton Rouge v. Johnca Properties, L.L.C., 00-2524, pp. 1-5 (La.6/1/01), 794 So.2d 766, 767-769, the Louisiana Supreme Court set out the pertinent facts and history of this matter up to that point. In its opinion, the Supreme Court reversed the decision of this court and reinstated the judgment of the trial court denying Johnea’s motion to dismiss the action. In so doing, the court ruled that the City/Parish possessed the authority to employ the' quick taking procedure outlined in La. R.S. 48:441-460. The court remanded this matter to the trial court for proceedings consistent with its opinion.

The matter was returned to the trial court. The City/Parish filed a supplemental petition and deposited additional funds into the court reflecting its amended valuation of just compensation.

After a bench trial, the trial court entered judgment awarding Johnea damages in excess of the amount deposited into the court, attorney fees, expert witness fees, costs and interest.

Johnea appeals, assigning four assignments of error.

[sl. The trial court committed reversible error in finding that the date of taking was May 20, 1999 rather than July 17, 2001;
2. The trial court committed reversible error in finding that the expropriation was a taking of the whole property at issue rather that a partial taking; and if it was a partial taking, was the remainder an “uneconomic remainder;”
3. The trial court committed reversible error in failing to award adequate just compensation for the property taken;
4. The trial court committed reversible error in failing to award reasonable attorney fees and expert witness fees.

DISCUSSION

Date Of Taking

Johnea first argues by assignment of error that the actual date of taking was July 17, 2001, when the City/Parish paid $54,000 into, the registry of the court as additional estimated just compensation. This $54,000 represented the estimated increase in value of the property between the date of the appraisal and the date of filing the petition for expropriation, approximately eleven months later. The City/Parish had previously paid $454,000 as estimated just compensation when it filed its expropriation petition on May 20, 1999, the date the City/Parish considers the date of taking. Johnca argues that title to the property does not vest in the City/Parish until it deposits into the registry of the court the sum of just compensation citing State, Department of Highways v. Boudreaux, 401 So.2d 428 (La.App. 1 Cir.1981). It further argues that the City/Parish knew when it filed its petition that the sum deposited was inadequate because the sum was based on a year-old appraisal that did not reflect the known increase in value of the property. Accordingly, it argues that title did not vest until the full amount of just compensation was paid. Johnca argues that this is important because if the property vested in July 2001 rather than May |41999, Johnca would be entitled to the substantially increased value of the property.

Johnca’s reliance on Boudreaux, above, is misplaced. La. R.S. 48:1259 requires that the petition contain an amount of estimated just compensation. La. R.S. 48:445 provides that title to property vests in the City/Parish upon payment of this estimated deposit as follows:

Upon the deposit of the amount of the estimate in the registry of the court, for the use and benefit of the persons entitled thereto, the clerk shall issue a receipt showing the amount deposited, the date it was deposited, the style and number of the cause, and the description of the property and property rights, as contained in the petition. Upon such deposit, title to the property and the property rights specified in the petition shall vest in the department and the right to just compensation therefor shall vest in the persons entitled thereto. (Emphasis added.)

La. R.S. 48:460 provides as follows:

The plaintiff shall not be divested by court order of any title acquired under these provisions except where such court finds that the property was not taken for a public purpose. In the event of such findings, the court shall enter such judgment as is necessary to compensate the defendant for the period during which the property was in the possession of the plaintiff and to recover for the plaintiff any award paid. (Emphasis added.)

Accordingly, title to the subject property was divested from Johnca in May 1999 and became vested in the City/Parish when the City/Parish paid its estimated deposit. We have no authority to divest such title unless we find the property was not taken for a public purpose, La. R.S. 48:460, and Johnca does not dispute the public purpose of the taking.

Even so, Johnca argues that since the City/Parish did not follow delineated procedures by failing to pay the proper amount of just | ¡^compensation, title did not vest in the City/Parish. It cites Bou-dreaux, which says, “If expropriation is made under this statute the statutory provisions must be strictly complied with as only then does the vesting of title in the State take place under LSA-R.S. 48:445[.]” Boudreaux, 401 So.2d at 430. But Johnca makes no showing that the City/Parish failed to strictly comply with required procedure in this regard. The petition contains an estimate of just compensation and the required certifications as required by statute.

Johnca makes a strong argument that the City/Parish knew that the estimate was low when it paid $454,000 into the registry of the court. However, under the statutory authority cited above, title vested when the City/Parish complied with procedure and deposited the estimated compensation into the registry of the court.

Accordingly, we conclude that the date of taking was May 20, 1999, the date of depositing the estimate of compensation in this matter. Johnca’s remedy under the quick taking statutes was to challenge the amount of compensation, which it did successfully. This assignment of error lacks merit.

Extent Of Taking

Legal Description

Johnca argues that the City/Parish only effected a partial taking because of a discrepancy between the legal description employed in the petition and the right-of-way shown on the official map depicting the actual right-of-way, which map was not attached to or incorporated into the ^petition. The actual right-of-way did not encompass the entire Johnca tract.

Johnca argues that hornbook law requires the plat to control the extent of the taking when a discrepancy exists with a written description.

Johnca misconstrues the law. The cases cited by Johnca deal with boundary disputes and discrepancies between descriptions and survey maps attached to the same act of sale. They are inapplicable here since there are no boundary disputes or discrepancies between the right-of-way map and the property description. The right-of-way map does not attempt to describe the entire Johnca tract, but to show the proposed location of the actual right-of-way on the property.

The City/Parish’s petition adequately described the property to be expropriated. Johnca provides no authority, and we have found none, to support the proposition that the existence of a right-of-way map has any control over the content of the petition or the extent of the property taken. The City/Parish expropriated the entire Johnca tract.

Necessity of Taking

In challenging the extent of the .taking, Johnca challenges the necessity of the taking. Red River Waterway Com’n v. Fredericks, 566 So.2d 79, 83 (La.1990). In Red River Waterway, the Louisiana Supreme Court explained that under the highway quick-taking statute, three issues existed for determination by the court: 1) whether the property was taken for a highway purpose, 2) whether the expropriating agency acted arbitrarily, capriciously, or in bad faith in determining the necessity of the taking, and 3) whether the compensation was adequate. Id. The court instructed that questions such as the location and extent of the expropriation, the nature of |7the title to be taken, and the wisdom of pursuing a particular improvement project relate to the issue of the necessity of the taking. Id.

“The standard is whether the expropriator, in selecting the location and extent of the property to be expropriated, acted in bad faith or so capriciously and arbitrarily that its action was without an adequate determining principle or was unreasoned.” Id. “Thus, the landowner attacking the taking must show that the expropriator exercised its large discretion without consideration or adjustment with reference to principles, circumstances or significance.” Id. The landowner attacking the taking bears this heavy burden of proof. Id. The decision of the expropriating agency may not be set aside as long as it acts reasonably and in good faith in determining the taking is necessary. Id.

Here, the City/Parish’s chief engineer testified that he certified the entire Johnca property as necessary for expropriation based on safety issues, driveway access, building set back lines and required lines of sight. He testified that no driveway would be permitted at the busy intersection of Bluebonnet Boulevard and Airline Highway due to safety concerns. One of his safety goals was to eliminate the possibility of driveways at the intersection. He noted that the remaining property was a very small tract.

These considerations are reasonable, and Johnca has failed to meet its burden of proof; it has made no claim and has offered no proof that the City/Parish acted in bad faith. Accordingly, we cannot set aside the decision of the City/Parish as the expropriating authority. Nor can we conclude that the taking was wrongful in whole or in part, which would entitle John-es, to additional damages. Johnca’s second assignment of error lacks merit.

IsAmount of Just Compensation

In its third assignment of error, Johnca argues that the trial court erred in failing to award adequate just compensation for the subject property. It claims that the appraised value was too low, that it was not adequately compensated for the remainder of the property not needed for road construction, that it was not compensated for loss of income from the property, and that it was not compensated for the City/Parish’s trespass when it tore down the building on the property prior to the Louisiana Supreme Court’s decision becoming final. We disagree.

In expropriation proceedings, a factfinder’s factual determinations as to value of property and entitlement to any other types of damages will not be disturbed on review in the absence of manifest error. Concha Chemical Pipeline v. Schwing, 01-2093, p. 4 (La.App. 1 Cir. 9/27/02), 835 So.2d 543, 545. “The trial court is granted a great deal of discretion in determining the value of property in expropriation cases.” M “In an expropriation proceeding the trial court is not required to accept or reject the testimony of any particular witness, but may give whatever weight he considers appropriate to the testimony of any and all witnesses in making his factual determination of the value of the property taken. He may reach a conclusion which does not coincide with the testimony of any witness.” State, Department of Transportation and Devel opment v. Mayet, 521 So.2d 671, 673 (La.App. 1 Cir.1988).

Here, the trial court valued the property at $546,000 employing the approach of one of the two expert appraisers hired by Johnca. After the trial |9court adjusted this appraiser’s valuation to reflect the correct square footage, this appraisal was within $8,000 and $16,000 of the valuations made by the appraisers hired by the City/Parish. The trial court then awarded $30,000 for a billboard on the property. The trial court awarded the highest of the three values. It apparently disregarded the fourth appraisal, made by Johnca’s other appraiser, which was substantially higher. Accordingly, the trial court’s valuation is supported by competent evidence and is neither manifestly erroneous nor an abuse of discretion.

Even so, Johnca argues that the remainder of the property not used for road construction could have been economically viable, and additional compensation is due therefor. Particularly, it argues that it lost income from loss of the billboard.

In this regard, the trial court observed that Johnca failed to prove that it would have been able to generate income from the billboard. It did, however, award $30,000 for the billboard because it was on the property and could have been used to advertise the business on the property. Given the lack of proof, the trial court was not manifestly erroneous in failing to award damages based on potential income from the billboard, nor did it abuse its discretion in awarding the amount it did.

Johnca argues that it was not compensated for its loss of income from the property. The trial court, however, correctly observed that once it was paid, Johnca was “free then to go and buy [... ] another building and lease it out to somebody for the duration.” The trial court continued, “If you, you know, get paid for the value, and then you get paid for the lease, you’ve been paid twice.” The trial court was not manifestly erroneous in failing to award lost income when Johnca could have invested in other property to replace its income stream.

ImJohnca then argues that it suffered damages from the City/Parish’s trespass when it tore down the building on the property before the Louisiana Supreme Court’s decision was final. As discussed above, and as the trial court correctly explained, however, title to the property vested in the City/Parish upon paying the estimated value into the registry of the court. The City/Parish cannot trespass on its own property. Johnca is not entitled to any compensation for mental anguish or other damages from the alleged trespass.

The trial court did not abuse its discretion in its award of damages. Johnca’s assignment of error in this regard is without merit.

Attorney Fees

Johnca argues that the trial court abused its discretion in awarding attorney fees in the amount of $9,500. It argues that the lengthy litigation, including taking this matter to the Louisiana Supreme Court, justified an award of higher fees. It argues that the award should at least be based on the difference between the actual award and the amount of the initial deposit rather than the amount of the supplemented deposit. We disagree.

Louisiana Revised Statutes 48:453 E provides as follows:

Reasonable attorney fees may be awarded by the court if the amount of the compensation deposited in the registry of the court is less than the amount of compensation awarded in the judgment. Such attorney fees in no event shall exceed twenty-five percent of the difference between the award and the amount deposited in the registry of the court. (Emphases added.)

Here, the trial court awarded twenty-five percent of the difference between the award and the amount deposited in the registry of the court as attorney fees. The City/Parish had deposited $508,000 into the registry of the court at the time of trial. The trial court awarded $546,000. The difference is $88,000. Twenty-five percent of this amount is $9,500, which |nthe trial court awarded. This statute allows the court to base its award only on the difference between the amount deposited and the amount awarded. Johnca argues no basis for the use of the earlier, lower deposit as a basis for awarding attorney fees other than that even the larger sum does not cover its legal expenses in this matter.

Here, the trial court awarded the highest attorney fee allowed by law. It did not commit error or abuse its discretion in doing so. This assignment of error is without merit.

Expert Witness Fees

Johnca argues that the trial court erred in failing to award sufficient expert witness fees. The trial court awarded $23,816 in expert witness fees. Johnca argues that the correct sum for expert witness fees should have been $25,300, a difference of $1,484. But it fails to explain the source of the discrepancy or how it alleges the court erred. The only specific argument it makes is that the trial court failed to award the full amount of the expert witness fee and court time of John-ca’s appraiser, Kermit Williams.

Regarding Mr. Williams, the trial court stated that it awarded $5,016 for coming to court, but nothing for his analysis. The trial court noted that it “at least used his square footage.” In any event, we cannot discern Johnca’s basis for claiming an additional $1,484. ■ And generally, the amount and fixing of expert fees lies within the sound discretion of the trial court and will not be disturbed in the absence of abuse of discretion. Simpson v. Goodman, 97-2675, p. 13 (La.App. 1 Cir. 12/28/98), 727 So.2d 555, 564. Here, John-ca makes no showing that the trial court abused its discretion. Accordingly, we affirm the trial court in this regard. This assignment of error is without merit.

| ^DECREE

For the forgoing reasons, we affirm the judgment of the trial court. Costs are assessed to Johnca Properties, L.L.C.

AFFIRMED

      . The Louisiana Supreme Court ruled in Johnca that the applicable petition requirements were contained in La. R.S. 19:2.1 as applied through La. R.S. 48:1259, rather than in La. R.S. 48:442. Johnca, 00-2524 at p. 6, 794 So.2d at 769. La. R.S. 48:1259 provides that, “[a]U other procedures for expropriation shall be as provided in R.S. 48:441 through R.S. 48:460[.]”

      . Boudreaux’s ultimate holding in this regard is that "the deposit must be made for the benefit of the 'owner' either record or legal. A deposit for the benefit of a third person can have no legal efficacy.” Boudreaux, 401 So.2d at 431.

      . La. R.S.'48:445 provides that the right to just compensation shall vest in the person entitled thereto, but this right correlates with the property vesting in the department upon deposit of the amount of the estimate in the registry of the court.

      . Johnca fails to state the hornbook to which he is referring, and we cannot find one that asserts this proposition where there is no discrepancy in the property being described, as in the matter before us.

      . Several Louisiana cases state that damages are covered by both the manifest error standard and the abuse of discretion standard. See e.g. Exxon Pipeline Co. v. LeBlanc, 99-1437 (La.App. 1 Cir. 6/23/00), 763 So.2d 128, rev'd on other grounds, 00-2535 (La.5/15/01), 788 So.2d 1154, State, Department of Transportation and Development v. Mayet, 521 So.2d 671, 673 (La.App. 1 Cir.1988). We suggest that the correct standards are manifest error on the actual decision to award damages or not and abuse of discretion on the amount of damages.