author: RKUHN, J.

text:
    Sylvia SPRINGFIELD v. WAL-MART # 1266.
    No. 2001 CA 2543.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2002.

      Harry L. Shoemaker, III, Baton Rouge, Counsel for Claimant/Appellant Sylvia Springfield.
    Frank A. Flynn, Lafayette, Counsel for DefendanVAppellee Wal-Mart # 1266.
    Before: KUHN, DOWNING, and GAIDRY, JJ.
   RKUHN, J.

After an alleged work-related back injury, Wal-Mart Stores, Inc. paid workers’ compensation disability benefits to claimant, Sylvia Springfield, for various periods of time during which she was unable to work. After two physicians reported that Springfield was capable of performing light-duty work, Wal-Mart advised her that she was scheduled to return to work. When Springfield failed to return to work, Wal-Mart terminated her disability benefits. Springfield then filed a disputed claim for compensation. In answering the claim, Wal-Mart denied that Springfield had been injured in a work-related accident and asserted that she had no continuing work-related disability. The Office of Workers’ Compensation (OWC) ruled that Springfield had failed to establish a work-related accident and dismissed her claim. Springfield appeals. Although we affirm the OWC’s denial of benefits, we reach that conclusion based on a determination that Springfield failed to prove that she was unable to work when Wal-Mart terminated her benefits. Further, Springfield failed to establish that medical expenses incurred after the termination of benefits were related to her alleged work-related back injury.

I. FACTUAL AND PROCEDURAL BACKGROUND

Springfield began working for Wal-Mart in 1989 as a door-greeter. She was later transferred to work in the store’s garden center. Her job duties included stocking shelves, watering and displaying plants, condensing the plants when new inventory was received, helping customers, and serving as a cashier. Springfield testified that in 1992, she had a work-related accident that caused a back injury and disabled her from working for a period of time. She later returned to work in the garden center. On April 22, 1994, Springfield reported to her supervisor, Janet Johannsen, that while working, she suddenly felt pain similar to what she had experienced in 1992. | aSpringfield testified that she reported experiencing this pain while bending down to move some plants to a lower shelf to make room for new inventory on the higher shelf. Johannsen testified that Springfield reported that she did not know how she had hurt herself but guessed that she hurt herself while pulling on a hose or bending over to pick up the hose. Johann-sen did not recall that Springfield had mentioned anything about moving plants. Johannsen filled out an injury report, documenting that Springfield thought she hurt herself by pulling on the hose and reporting that there were no witnesses. Several weeks later, when Springfield filled out a workers’ compensation statement regarding the incident, she reported that she was injured while moving and lifting plants in the greenhouse.

On the day of the alleged incident, Jo-hannsen sent Springfield to the E-Med Clinic. Dr. Leonard Cheramie examined Springfield and diagnosed a lumbar strain. He advised that she should receive further medical attention before returning to work and scheduled an appointment with Dr. Kenneth Cranor, an orthopedist.

On April 16, 1994, Springfield was examined by Dr. Cranor, who also diagnosed a lumbar strain and concurred that she should not immediately return to work. Springfield’s back pain persisted, and Dr. Cranor treated her conservatively, prescribing the use of a lumbar corset for support. At the end of May 1994, Dr. Cranor reported that Springfield exhibited symptoms of degenerative changes in the lower back and advised that Springfield 'could return to light-duty work. Wal-Mart paid Springfield disability benefits for the period of time that she was not able to work.

By December 14, 1994, Dr. Cranor found that Springfield’s back problem was worse because she had bursitis in her leg, and he restricted her to light duty work for | ¿four hours each day. Less than a week later, Dr. Cranor advised Springfield not to return to work and Wal-Mart resumed its payments of disability benefits. Springfield returned to Dr. Cranor’s office frequently during early 1995, reporting pain in her lower back. Dr. Cranor noted that her symptoms of lumbar nerve root compression syndrome were most likely caused by a herniated disc. He prescribed limited activity and when she began to improve, he prescribed walking and a home-exercise program to strengthen her back. During March 1995, Dr. Cranor released Springfield to return to work on a light-duty basis for four hours each day. Upon her return, she worked in one of the clothing departments where her duties included hanging clothes and working in a fitting room. A few months later, Dr. Cranor noted Springfield was gradually getting better and released her to work for six hours each day with no heavy lifting. By the end of 1995, Dr. Cranor noted that Springfield was continuing to experience discomfort in her lower back and sought a referral for an additional medical opinion.

Dr. Cranor referred Springfield to Dr. John Clifford, a neurosurgeon, who first examined her in November 1995. Dr. Clifford found that Springfield’s complaints were due to a “mechanical type of low back pain.” He advised that she continue her exercises. Springfield continued working until April 15, 1996, when she returned to Dr. Clifford reporting persistent back pain and tingling and numbness in her calves. Dr. Clifford noted muscle spasms and a restricted range of motion and found that Springfield was disabled from working until she could be further evaluated. An MRI exam showed moderately severe spinal canal stenosis at the L-4/5 level. Based on this finding, Dr. Clifford found that Springfield should not continue working on a regular basis and referred her to Dr. Morton Langston for a rehabilitation evaluation. Once again, Wal-Mart resumed its payment of disability benefits.

| Jn July 1996 and for the next several months, Dr. Langston treated Springfield conservatively using physical therapy, various anti-inflammatory drugs, and trigger point injections. By May 1997, Dr. Lang-ston found that Springfield’s diagnostic testing showed findings of mild severity and that she was able to return to light-duty work. Again in October 1997, he recommended that she could return to work, reporting that she had reached “maximal medical improvement.” Dr. Langston noted that Springfield was not willing to return to work because she feared that it would cause a relapse and increase her pain. At that point, Dr. Langston referred Springfield back to Dr. Clifford for a neurological re-evaluation.

Dr. Clifford re-examined Springfield on November 3, 1997, and reported that her examination was “essentially normal.” His notes reveal the following pertinent information regarding her medical condition:

After reviewing all of [Springfield’s] diagnostic studies to date, I feel that this far removed from her accident, and if she had significant pathology, she should have significant findings on her examination, which she does not.... Her history suggests to me some element of degenerative disc disease, which she may have, but certainly, if this were giving her sufficient problems to prevent her from working, there should be significant findings on her physical examination, which there are not.
My sense is that this patient has long since reached maximum medical improvement. She has a residual disability of less than 5% of the body as a whole, and I feel that she is employable in her former occupation, which she explained to me as someone who would be required to hang clothing on clothes racks.

On November 20, 1997, Concentra Managed Care, Inc., the company who had been managing Springfield’s medical care and . return-to-work services for Wal-Mart’s workers’ compensation insurer, informed Wal-Mart that both Drs. Clifford and Langston had indicated that Springfield could return to her fitting-room work. Based on that information, Ray Black, Wal-Mart’s store director, sent a letter dated December 4, 1997 to Springfield informing her that she had been released to return to light-duty | fiwork. A work schedule was also enclosed that indicated Springfield was scheduled to work on December 22, 1997. The letter further advised that if she did not return to work on December 22, 1997, Wal-Mart would terminate her employment.

After Springfield received this letter, she requested an immediate visit with Dr. Langston, who saw her on December 10, 1997. Springfield complained of tightness in her lower back and right lower extremity and expressed concern regarding her proposed return to work. Dr. Langston again reported that he felt Springfield had reached maximum medical improvement and that she should try to return to work to evaluate her ability to work in a sedentary/light-duty position.

Springfield did not return to work as proposed by Wal-Mart and her disability benefits were terminated on December 23, 1997. As of that date, Wal-Mart had paid $16,793.01 in indemnity benefits and $26,224.99 in medical expenses.

On February 4, 1998, Springfield returned to Dr. Clifford complaining of pain in her back and leg. Dr. Clifford stated in his progress notes, “[0]nce again she has complaints of pain without any findings.” He noted that she was very upset because she had been told that she was scheduled to return to work. Dr. Clifford further addressed Springfield’s symptoms as “consistent with someone with degenerative disc disease” and stated that he felt that she was not a candidate for surgery. He also confirmed that he still believed that she was employable in light duty or sedentary type work. Springfield filed her disputed claim for compensation in December 1998.

In January 1999, Springfield sought a second neurosurgical opinion from Dr. Anthony S. Ioppolo. After reviewing an updated MRI scan of the lumbar spine, Dr. Ioppolo diagnosed a “significant disc rupture ... on the right side at L4 with significant compression of the nerve root.” Although Dr. Ioppolo suggested that additional conservative treatment was available, Dr. Ioppolo advised Springfield that |7he believed that surgery would ultimately be needed. Springfield was later referred to Dr. Jorge E. Isaza, who performed a lumbar laminectomy in August 1999. As of May 2000, Springfield continued to complain of persistent lower back pain, and Dr. Isaza concluded that Springfield suffered from degenerative joint disease. Dr. Isaza reported that Springfield will have permanent physical limitations, and he restricted her from engaging in prolonged sitting or standing and from lifting over 30 pounds. He did not perform a disability evaluation or address whether Springfield was able to work.

Following a hearing addressing whether Springfield was entitled to receive disability benefits after December 23, 1997, the OWC determined that Springfield had failed to establish a La. R.S. 23:1021(1) “accident.” Springfield appeals alleging that the trial court erred by: 1) holding that she failed to prove a work-related accident; 2) refusing to award disability benefits, medical and related travel benefits, and vocational rehabilitation; and 3) denying penalties and reasonable attorneys’ fees.

II. ANALYSIS

Initially, a workers’ compensation claimant has the burden of establishing by a preponderance of the evidence that an accident occurred on the job and that he sustained an injury. Clausen v. D.A.G.G. Const., 2001-0077(La.App. 1st Cir.2/15/02), 807 So.2d 1199, 1201, writ denied, 2002-0824 (La.5/24/02), 816 So.2d 851. Further, a claimant who seeks workers’ compensation benefits on the basis of being temporarily totally disabled must prove by clear and convincing evidence, without taking pain into consideration, that he is unable to engage in any employment or selfjemploymentg. La. R.S. 23:1221(1)(c); Bolton v. Grant Parish School Board, 1998-1430 (La.3/2/99), 730 So.2d 882, 885.

A. Work-Related Accident

In the present case, Wal-Mart urged that Springfield was not credible because she offered two different versions of her alleged work accident. Further, Wal-Mart argued that Springfield’s self-serving testimony was insufficient to meet her burden of establishing that an accident occurred. The OWC apparently accepted this reasoning.

After examining the record, it is apparent that if Springfield was injured while performing her work duties, she initially may have had difficulty pinpointing a specific event that caused her injury due to the repetitive nature of her work in the garden center. But because we find that Springfield failed to establish that she was unable to work when Wal-Mart terminated her benefits in December 1997, we find it appropriate to pretermit an analysis of whether Springfield established a work-related accident.

B. Disability Benefits

We next address whether Springfield established by clear and convincing evidence that she was unable to work. Springfield testified that she was unable to return to work in December 1997, or anytime since then. She related that she was experiencing pain from muscle spasms when Drs. Clifford and Langston reported that she was able to return to light-duty work. She also stated, “At my age plus with me | flhurting like I am now, no, I don’t believe I could work.” She further testified that she did not believe there would ever be a job at Wal-Mart to which she could return.

Springfield’s testimony that she was unable to return to work in December 1997 is not supported by the medical evidence. Drs. Clifford and Langston both testified that Springfield had reached maximum, medical improvement and was able to return to work prior to December 1997. Dr. Langston’s medical opinion was that Springfield was able to return to light-duty work as early as May 1997. When Dr. Clifford examined Springfield in November 1997, he determined that she was “employable in her former occupation.” Both doctors had treated Springfield for significant periods of time prior to rendering their opinions. We conclude that the medical records of these doctors establishes that Springfield was capable of returning to sedentary or light duty employment.

On appeal, Springfield complains that she was unable to get clarification as to what type of work the Wal-Mart managers had in mind for her when she returned to work. Debbie Landry, one of Wal-Mart’s personnel managers, testified that when the “return-to-work” letter was sent to Springfield, Wal-Mart’s light duty jobs included door greeter, working in the fitting rooms, hanging clothes, answering the telephone, filing and helping with paperwork. Although the return-to-work letter did not describe these available jobs or specify the position in which she would be placed, Springfield was not entitled to refuse to return to work on that basis. Accordingly, we conclude that the record does not establish by clear and convincing evidence that Springfield was temporarily totally disabled after December 23, 1997. Springfield failed to prove that she was entitled to receive additional indemnity benefits.

|inC. Medical and Related Travel Expenses

An employer has a statutory duty to furnish all necessary medical treatment caused by a work-related injury. La. R.S. 23:1203(A); Parfait v. Gulf Island Fabrication, Inc., 1997-2104 (La.App. 1st Cir.1/6/99); 733 So.2d 11, 19. The right to reimbursement for medical expenses is separate and distinct from the right to compensation. Id.

In order to recover medical expenses under La. R.S. 23:1203, the claimant must prove that the expenses are reasonably necessary for treatment of a medical condition caused by the work injury. Patterson v. Long, 96-0191 (La.App. 1st Cir. 11/8/96); 682 So.2d 1327, 1334, writ denied, 96-2958 (La.2/7/97), 688 So.2d 499. With respect to Springfield’s medical and related travel expenses incurred after December 23, 1997, plaintiff failed to establish that these expenses were related to her alleged 1994 back injury. The medical evidence includes multiple references to Springfield’s symptoms being related to degenerative disc or joint disease and otherwise fails to establish that her medical treatment after December 1997 was related to the alleged April 1994 back injury. Thus, Springfield has not established that she is entitled to recover additional medical and travel expenses incurred after December 1997.

D. Vocational Rehabilitation and Penalties and Attorneys’ Fees

Springfield did not brief her assignments of error in which she asserts that the OWC erred by failing to award vocational rehabilitation and penalties and attorneys’ fees. Thus, we may properly consider these assignments of error as abandoned. Uniform Rules, Courts of Appeal, Rule 2-12.4. Nonetheless, we recognize that pursuant to La. R.S. 23:1226A, an employee is entitled to rehabilitation services if he suffers an injury that precludes his earning wages equal to or in excess of his pre-injury wage. Because we find that Springfield failed to establish that she was unable to earn Inwages equal to what she earned prior to her alleged 1994 injury, we find Springfield has failed to establish that she is entitled to rehabilitation. Collins v. Family Dollar Stores, Inc., 1999-0622 (La.App. 1st Cir.5/12/00), 760 So.2d 1210, 1217, writs denied, 2000-2356, 2000-2363 (La.11/13/00), 773 So.2d 727.

Likewise, since Springfield has not established that she is entitled to recover any workers’ compensation or medical benefits, she is not entitled to recover penalties or attorneys’ fees. La. R.S. 23:1201.

III. CONCLUSION

Springfield failed to establish by clear and convincing evidence that she was temporarily totally disabled after December 1997. She also failed to prove that the medical expenses she incurred after this date were related to her alleged 1994 injury. Additionally, she has failed to establish that she is entitled to rehabilitation or penalties and attorneys’ fees. For these reasons, the OWC ruling dismissing Springfield’s claim is affirmed. The costs of this appeal are assessed to Springfield.

AFFIRMED.

      . Johannsen, who was married when she filled out the injury report, signed the report using the surname of Young.

      . La. R.S. 23:1021(1) defines "accident” as "an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.”

      . At the time of Springfield's injury in 1994, La. R.S. 23:1221 (l)(c) provided as follows:
      [Cjompensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lol employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.

      . Although Springfield brought this appeal in forma pauperis, the costs of this unsuccessful appeal may be assessed against her. Rochon v. Blackburn, 1997-2799, p. 6 (La.App. 1st Cir. 12/28/98), 727 So.2d 602, 605, n. 6.


source: Caselaw Access Project

author: I «KUHN, J. ^DOWNING, J.,

license: Public Domain

text:
    Wayne DUKES v. SHERWOOD ACRES APARTMENTS and Fireman’s Fund Insurance Company.
    No. 2001 CA 2325.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2002.

      Terry L. Bonnie, Baton Rouge, Counsel for Plaintiff/Appellant Wayne Dukes.
    M. Blake Monrose, Lafayette, Counsel for Defendants/Appellees Sherwood Acres Apartments and Fireman’s Fund Insurance Co.
    Before: KUHN, DOWNING, and GAIDRY, JJ.
   I «KUHN, J.

Claimant-appellant, Wayne Dukes, appeals a judgment in favor of employer-appellee, Sherwood Acres Apartments (Sherwood Acres) and its compensation insurer-appellee, Fireman’s Fund Insurance Company, on their reconventional demand, finding that Dukes willfully made false statements and/or representations for the purpose of obtaining workers’ compensation benefits. Declaring forfeiture of Dukes’ right to past, present, or future workers’ compensation, the judgment also orders Dukes to pay a $5,000.00 civil penalty and $16,248.94 in restitution as well as an additional $12,060.32 for investigation and litigation costs. We affirm in part, vacate in part, and remand with instructions.

FACTUAL AND PROCEDURAL BACKGROUND

On May 5, 2000, while employed as a maintenance person at Sherwood Acres, Dukes allegedly injured his lower back while reinstalling a toilet in an apartment bathroom. He notified his supervisor and the Sherwood Acres office manager. At his employer’s suggestion, Dukes sought medical attention at Summit Hospital. An x-ray was taken, which revealed chronic degenerative findings, with no detection of acute trauma to the lumbar spine. The treating physician at Summit Hospital indicated his impression of Dukes’s condition based on the x-ray was a lumbar strain. He was given medical prescriptions and advised to apply heat to his lower back. Four days later, Dukes sought additional medical attention from his personal physician, Dr. Raynando Banks, for lower back pain. Dr. Banks referred Dukes to Dr. Boyd for epidural injections. And Dr. Boyd apparently placed Dukes on a regimen of physical therapy after two epidural injections failed to relieve the lower back pai;n. Dukes was also seen by Dr. Lea at the request of appellees.

13A request for an evaluation by a surgeon was apparently pending when Dukes filed a disputed claim form (1008) seeking his choice of physician as well as penalties and attorney’s fees. Appellees answered Dukes’ allegations and filed a reconven-tional demand, averring that by willfully making false statements and/or representations in order to obtain workers’ compensation benefits, Dukes forfeited any right to workers’ compensation- benefits. Appellees requested full statutory recovery from Dukes.

After a hearing on the merits, the Workers’ Compensation Judge (WCJ) determined that appellees were entitled to relief on their reconventional demand. The WCJ signed a judgment declaring that Dukes forfeited his right to workers’ compensation benefits, assessed a $5,000.00 civil penalty, and ordered restitution. Dukes appeals.

DISCUSSION

Louisiana Revised Statute 23:1208 provides in relevant part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
* * *
C.(1) Whoever violates any provision of this Section, when the benefits claimed or payments obtained have a value of ten thousand dollars or more, shall be imprisoned, with or without hard labor, for not more than ten years, or fined not more than ten thousand dollars, or both.
(2) Whoever violates any provision of this Section, when the benefits claimed or payments obtained have a value of two thousand five hundred dollars or more, but less than a value of ten thousand dollars shall be imprisoned, with or without hard labor, for not more than five years, or fined not more than five thousand dollars, or both.
(3) Whoever violates any provision of this Section, when the benefits claimed or payments obtained have a value of less than two thousand five hundred dollars, shall be imprisoned for not more than six months or fined not more than five hundred dollars, or both.
(4)Notwithstanding any provision of law to the contrary which defines “benefits claimed or payments obtained”, for purposes of Subsection C of this Section, the definition of “benefits claimed or payments obtained” shall include the cost or value of indemnity benefits, and the cost or value of [ 4health care, medical case management, vocational rehabilitation, transportation expense, and the reasonable costs of investigation and litigation.
D. In addition to the criminal penalties provided for in Subsection C of this Section, any person violating the provisions of this Section may be assessed civil penalties by the workers’ compensation judge of not less than five hundred dollars nor more than five thousand dollars, and may be ordered to make restitution. Restitution may only be ordered for benefits claimed or payments obtained through fraud and only up to the time the employer became aware of the fraudulent conduct.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

The only requirements for forfeiture of benefits under section 1208 are that: (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment. Hull v. Fluker Farms, 00-0757, p. 6 (La.App. 1st Cir.5/11/01), 787 So.2d 535, 539.

The issue of whether an employee forfeited his workers’ compensation benefits is one of fact, which is not to be reversed on appeal, absent manifest error. Id. Before an appellate court may reverse the factual determinations of the WCJ, it must find from the record a reasonable factual basis does not exist for the findings, i.e., that the findings are clearly wrong or manifestly erroneous. Id. Where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id., 00-0757 at p. 6, 737 So.2d at 539-40 (citing Stobart v. State, Dep’t of Transp. and Dev., 617 So.2d 880, 883 (La.1993)).

Dukes urges the WCJ was manifestly erroneous in its conclusion that he willfully made false statements or representations. Dukes suggests that careful scrutiny of his deposition testimony, taken on December 21, 2000, and his testimony at the hearing on the merits on April 18, 2001, fails to reveal any false statements or representations to support the imposition of relief under La. R.S. 23:1208 in favor of appel-lees.

IsAt the hearing on the merits, appellees introduced the medical records of Dukes’ treating physician, Dr. Banks. According to Dr. Banks’ records, on February 24, 2000, Dukes sought medical attention for pain in his lower back and knees. Dr. Banks’ handwritten notation on the February 24, 2000, Progress Note states that Dukes reported, “he is almost paralyzed.” There is no history provided in the “Chief Complaint with History” section of the February 24, 2000, Progress Note. Dr. Banks’ records also include a Progress Note for May 9, 2000, which expressly states that Dukes complained of “having injury on job,” indicating that the patient’s chief complaints were neck and back pain. In the May 9, 2000, Progress Note, under a section entitled “Signs and Symptoms,” Dr. Banks wrote, “[Dukes] state[d] while picking up [a] commode out of the [bathtub] before setting it [in]to drainage he noticed upper and lower back pain.”

Appellees also placed into evidence Dukes’ deposition taken on December 21, 2000, in which Dukes was asked whether his back had “hurt” in the past five years. Dukes explained, “Every now and then ... I might get a pain in the back, but it was not a pain that would stay.” He expressly stated of back pain experienced over the past five years, “it [was not] a bad pain.” And Dukes testified that he had “[n]ever, never” received medical treatment for his lower back prior to the May 5, 2000 incident at Sherwood Acres.

At the hearing on the merits, Dukes testified that sometime around February 2000, he hurt his back while lifting a toilet working at Sherwood Acres. He did not tell anyone at work about the injury and did not make a claim, although he saw a doctor for treatment. Dukes stated that the reason he did not mention the earlier back pain and medical treatment at his deposition was that he forgot.

Our review convinces us that the WCJ discredited Dukes’ hearing testimony that he forgot that he had sought medical treatment in February 2000 for lower back pain. In | ^February 2000, Dukes described to Dr. Banks that as a result of his lower back pain, he was almost paralyzed. But less that ten months later at his deposition, Dukes denied having had any “bad pain” in his lower back. And at the deposition, he clearly testified that he had “[n]ever, never” sought medical treatment for his lower back. The documentary evidence shows that while Dr. Bank’s office indicated in its Progress Note that the May 9, 2000 treatment was as result of an on-the-job injury and included a detailed accounting in the physician’s own handwriting of the events which led to the injury, no such references were made in the office’s Progress Note of February 24, 2000. Besides his testimony, the record is devoid of any evidence that supports Dukes’ hearing version of events that led to the February 24, 2000, medical attention for his lower back.

Mindful that resolution of factual incongruence is uniquely the province of the factfinder, we cannot say that the WCJ was manifestly erroneous in either his factual findings or his conclusion that Dukes’ deposition testimony included false statements willfully made for the purpose of obtaining workers’ compensation benefits. The WCJ implicitly found that Dukes made the false statements (denying that he had suffered from “bad pain” or sought any medical attention for his lower back within five years of May 5, 2000) in an effort to misrepresent the evidence of causation for this workers’ compensation claim against appellees. Because an evi-dentiary basis exists to support the WCJ’s factual conclusion that Dukes forfeited entitlement to workers’ compensation benefits under La. R.S. 23:1208, we are duty bound to affirm that determination.

^Accordingly, that portion of the WCJ’s judgment that orders Dukes’ forfeiture of any past, present, and future workers’ compensation benefits is affirmed. And under La. R.S. 1208D, those portions of the WCJ judgment, assessing a $5,000 civil penalty and ordering restitution against Dukes in appellees’ favor are appropriate under the facts of this case and, therefore, are affirmed.

On the record before us we are unable, however, to conclude that the amount of restitution ordered by the WCJ was proper, given the statutory limitations applicable to such an award. See Hull, 00-0757 at p. 12 n. 4, 787 So.2d at 542-43 n. 4. According to La. R.S. 23:1208D, restitution may be awarded for “benefits claimed or payments obtained through fraud” and such an award of restitution is only allowed “up to the time the employer became aware of the fraudulent conduct.” While subsection D contains no definition of “benefits claimed or payments obtained,” subsection C, which deals with criminal penalties, defines “benefits claimed or payments obtained” as “the cost or value of indemnity benefits, and the cost or value of health care, medical case management, vocational rehabilitation, transportation expenses, and reasonable costs of investigation and litigation.” Hull, 00-0757 at p. 12, 787 So.2d at 543. Although this definition is contained in and expressly applicable to subsection C, it is incorporated by reference to subsection D, which provides for restitution and, therefore, applies to restitution claims as well. See Hull, 00-0757 at pp. 12-13, 787 So.2d at 543 (citing Yarnell Ice Cream Co. v. Allen, 33,020, pp. 7-8 (La.App.2d Cir.5/10/00), 759 So.2d 1066, writ granted, 00-1520 (La.9/15/00), 767 So.2d 699, writ recalled, 00-1520, 777 So.2d 472 (La.1/17/01)). Cf. Anderson v. Barrett Interior Specialties, 00-1663 (La.App. 1st Cir.9/28/01), 809 So.2d 992 (wherein another panel of this court affirmed without discussion of the applicability of La. R.S. 1208C & D “the amount of all benefits paid.”)

|sTurning to the WCJ’s determination of the amount of restitution appellees are entitled to under La. R.S. 23:1208D “for benefits claimed or payments obtained through fraud,” Dukes’ false statements made in his December 21, 2000, deposition testimony reveal that Dukes engaged in the fraudulent conduct from the inception of this claim for workers’ compensation benefits. Thus, based on the facts of this case, appellees are entitled to indemnity and medical benefits they paid to Dukes from commencement.

Addressing the scope of restitution insofar as “the time the employer became aware of the fraudulent conduct,” this record establishes that at the time of the December 21, 2000 deposition, appellees already knew that Dukes had sought Dr. Banks’ medical attention for his lower back on February 24, 2000. Thus, with Dukes’ deposition testimony on December 21, 2000, stating that he had not had any “bad pain” or sought medical attention for his lower back within five years of the May 5, 2000 accident, appellees became aware of Dukes’ fraudulent conduct. Thus, under the plain language of La. R.S. 23:1208D and the facts established in this record, restitution in favor of appellees can only be ordered through December 21, 2000.

At the hearing on the merits, appellees’ attorney, M. Blake Monrose, testified that Dukes was paid total indemnity benefits of $7,233.85 and total medical benefits of $9,015.09. Monrose testified that total investigation expenses, including the cost of the investigator’s hearing testimony, were $8,035.32. Litigation and other legal expenses totaled $4,025.00 according to Mon-rose. No other evidence of the benefits claimed or payments obtained by Dukes was submitted. Monrose’s testimony does not break down the amounts expended by appellees in this matter on any basis, and the record does not otherwise contain any sort of itemization of any of these amounts. Thus, lacking itemization of these total amounts, because an order of restitution under La. R.S. 23:1208D is limited to those “benefits claimed or payments obtained through fraud” and |9then only until that point in “time the employer became aware of the fraudulent conduct,” we must remand for the WCJ to ascertain that portion of the total amount of indemnity and medical benefits, investigation and litigation costs, as well as any other restitution appellees are entitled to recover under La. R.S. 23:1208D from inception of this claim by Dukes for workers’ compensation benefits through December 21, 2000, the date this record establishes Sherwood Acres became aware of Dukes’ fraudulent conduct.

DECREE

For these reasons, the judgment rendered by the WCJ is affirmed insofar as it orders that Dukes: (1) forfeited any right to past, present, or future workers’ compensation; (2) make restitution to appel-lees; and (3) is assessed a $5,000 civil penalty under La. R.S. 23:1208. The WCJ’s judgment is vacated insofar as it orders Dukes to pay restitution in the amount of (1) $16,248.94 for benefits paid by appellees; and (2) $12,060.32 for the reasonable costs of investigation and litigation. The matter is remanded for the WCJ to apply the provisions of La. R.S. 23:1208D. Specifically, the WCJ is ordered to ascertain the amount of benefits Dukes obtained through fraud, which commenced with the first benefit claimed or the first payment obtained by Dukes from appellees through December 21, 2000, the date appellees became aware of the fraud. In determining the amount of restitution appellees are entitled to recover from Dukes, the WCJ is instructed to consider all evidence submitted on the cost or value of indemnity benefits, the cost or value of health care, medical case management, vocational rehabilitation, transportation expense, and the reasonable costs of investigation and litigation. Costs of this appeal are assessed one-half to claimant-appellant, Wayne Dukes, and one-half to appel-lees, Sherwood Acres Apartments and Fireman’s Fund Insurance Company.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH INSTRUCTIONS.

DOWNING, J., concurs and assigns reasons.

^DOWNING, J.,

concurs and assigns reasons.

An employer who terminates benefits when it first becomes aware of possible fraud runs a great risk of incurring penalties. A prudent employer would commence an investigation and incur expenses, including additional medical examinations, to confirm the fraud prior to terminating benefits. These costs are directly related to the fraud prior to terminating benefits. These costs are directly related to the fraud and should be recovered. The judiciary, however, should not rewrite legislation in the guise of interpreting it, although this rule is often honored in the breach. This ruling follows the clear language of the statute.

      . The judgment also grants appellees' motion to dismiss at the close of claimant’s case-in-chief based on an express finding that Dukes failed to carry his burden of proving entitlement to benefits. That portion of the judgment has not been appealed.

      . Although unnecessary for our resolution of the issues raised on appeal, we note that appellees introduced evidence of surveillance videos depicting inter alia claimant’s range of motion during August and September 2000, which the WCJ may have factored into his determination of Dukes’ credibility.

      . Although Dukes avers the WCJ was manifestly erroneous in allowing him to proceed at the hearing on the merits without an attorney, he neither objected at trial nor offers any legal authority in support of his contention. Because a workers' compensation claimant is afforded the right to proceed without retained legal representation, just as any other litigant, we find no error.


author: |.,KLINE, J.

text:
    Chuck SMITH v. J.E. MERIT CONSTRUCTORS, INC.
    No. 2001 CA 2824.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2002.

      Michael L. Hyman, Baton Rouge, Counsel for PlaintiffiAppellant Chuck Smith.
    Kirk L. Landry, Baton Rouge, Counsel for Defendant/Appellee J.E. Merit and ESIS.
    Before: FOIL, FOGG, and KLINE, JJ.

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

   |.,KLINE, J.

This is an appeal from a judgment of the Office of Workers’ Compensation (“OWC”), finding in favor of defendant, J.E. Merit Constructors, denying claimant Chuck Smith’s claim for indemnity benefits, penalties, and attorney fees. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Following a May 2, 2001 hearing, the OWC judge summarized the case in its oral reasons for judgment as follows:

This is Chuck Smith versus J.E. Merit Constructors, 99-09579. This matter came for trial on May 2nd, 2001. Judgment was rendered on May 21st, 2001, and the Court is now prepared to render reasons for judgment.
Chuck Smith was employed by J.E. Merit Constructors in June 1998. He was injured while in the course and scope of his employment. The employer paid medical bills and expenses related to the accident. The claimant received workers’ compensation benefits or worked for J.E. Merit[,] until October of [1999]. The claimant filed [a] petition seeking payment of additional indemnity benefits and penalties and attorneys fees for untimely payment of medical bills.
The parties stipulated that the claimant was injured in the course and scope of his employment and [have] stipulated
that claimant’s average weekly wage was $609.50.
As far as the claim for the unpaid medical bills was concerned, the claimant testified that he received a bill concerning a test that was run before his surgery. Claimant didn’t know if the bill was unpaid at the time of trial. He couldn’t testify if it had been forwarded to the insurance adjustor, and he did testify that at the time of the trial to his knowledge all of the medical bills and expenses had been paid, and he testified further that he was no longer receiving the bills. The medical bill was admitted into evidence, but it failed to show what it was for, when the tests were run and what the relationship was to the injury. Claimant had no proof of when the bill was actually paid, and so I find that there’s no proof that the bill was not paid in a timely fashion. And, therefore, penalties and [attorney’s] fees are not owed.
The larger question was whether indemnity benefits are owed. The claimant testified that he was currently working and that he was earning $17 per hour at this time. He testified that he was only able to work 20 to 25 hours per week because of his injuries. Callie Sparks, his present employer testified that the claimant currently works for him and has been working for him for many months. Mr. Sparks also testified that claimant was not able to work a 40-hour week, that the evidence that was submitted from Mr. Sparks’ company shows that Mr. Smith worked a 40-hour week in the past and Mr. Sparks testified that he had work[ed] 40 hours or more for Mr. Sparks on more than one occasion.
Mr. Sparks also testified that part of the reason why he didn’t work 40 hours a week at this time was because of the lack of work, [..¡not because of the injury. There’s also no medical in the file that shows that Mr. Smith is unable to work 40 hours a week.
Further proof of his ability to work a 40-hour week is the fact that he had gone back to work for J.E. Merit, and he had worked with them at two different plants after his injury. He had been accommodated for his injury. He had worked for J.E. Merit for seven months after his injury, and he had worked a 40-hour week and was paid his wage. He had surgery on his knee in March of 1999. He was released to return to work in October of 1999. He was offered a light-duty position by Tony Lambert of J.E. Merit in October of 1999 at the Motiva Plant. He reported to work, did the paperwork and then quit, because .in his opinion he was unable to do the work, yet his job duties had not even been assigned to him at that time. He did testify that they had accommodated him before his surgery, and he didn’t state why he didn’t think he would be able to do a job when they had accommodated him before and they hadn’t even told him what he was expected to do when he quit.
Taking all of the evidence that’s been submitted into evidence, I find that the claimant has failed to prove [by] a preponderance of the evidence that he is permanently or temporarily totally disabled. He’s also failed to prove that he cannot earn 90 percent of his pre-injury wages.
Most significantly, the claimant was offered a position at J.E. Merit that would have paid him his full salary. He reported to that job, and then he quit.
But more significant than just the offering of the job is the fact that the testimony showed that J.E. Merit had offered him a position where he was accommodated because of his injury before his surgery, he had worked there for seven months and that this was basically what J.E. Merit was doing was they were offering him a position where they would accommodate him as much as possible. He never tried.
In addition to the fact that he was offered a position by J.E. Merit, his own testimony shows that he is capable of performing work earning $17 per hour and that he is capable of working 40 hours per week as evidenced by his current employer’s pay records. When you compútate [sic] $17 an hour by 40 hours per week, it gives him a current wage of $680 per week, which is 90 percent of his pre-accident weekly wage.
There is no medical evidence showing that Mr. Smith is restricted from working a 40-hour week; and, therefore, I don’t believe that he has proved that he is owed any indemnity benefits. Therefore, the claim for indemnity benefits is denied.

Thereafter, on May 21, 2001, the OWC judge signed a judgment in favor of defendant, J.E. Merit Constructors (“J.E.Merit”), denying Mr. Smith’s claim for penalties and attorney fees and his claim for indemnity benefits.

Mr. Smith appeals the OWC’s judgment, asserting the following assignments of error:

|41. The [workers’] compensation [j]udge erred in finding that Appellant had failed to prove by a preponderance of the evidence that he cannot earn 90% of his pre-injury wages.
2. The [workers’] compensation judge erred in holding that Appellee had carried its required burden of proof, in finding that the job offered to Appellant was appropriate to Appellant’s physical limitations.
3. The [workers’] compensation judge erred in giving credibility to the signed job analysis form that was completed by the doctor after Appellant had tried the job, without success. [Emphasis original.]

LAW AND DISCUSSION

All of the assignments of error asserted by Mr. Smith raise factual issues. Mr. Smith argues that the proper standard of review in a workers’ compensation case is not the manifest error-clearly wrong standard of review, but rather the substantial evidence test as set out in the Louisiana Administrative Procedure Act, La. R.S. 49:950 et seq. The Louisiana Supreme Court determined that the same standard of review applicable to factual findings of district courts is also applicable to factual findings of a workers’ compensation judge. Jurisprudence clearly establishes that in workers’ compensation cases, the appropriate standard of review to be applied by appellate courts is the “manifest error-clearly wrong” standard. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556; Alexander v. Pellerin Marble & Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710; Brown v. Coastal Construction & Engineering, Inc., 96-2705, p. 4 (La.App. 1st Cir.11/7/97), 704 So.2d 8, 10. For an appellate court to reverse a workers’ compensation judge’s factual finding, it must find from the record that a reasonable factual basis does not exist for the finding of the workers’ compensation judge or that the record establishes that the finding is clearly wrong. See Stobart v. State, through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, the reviewing court must do more than simply review the record for some evidence that supports or controverts the workers’ compensation judge’s finding. The reviewing court must review the record in its entirety to determine whether the workers’ compensation judge’s finding was clearly wrong or manifestly erroneous. See Stobart v. State, through Department of Transportation and Development, 617 So.2d at 882.

|RThe issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart v. State, through Department of Transportation and Development, 617 So.2d at 882. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Id. Where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

The primary issue presented for decision on appeal is whether appellant proved by a preponderance of the evidence, before the OWC, that he was unable to earn ninety percent of his pre-accident wages and therefore entitled to collect supplemental earnings benefits (“SEB”) from his employer. The purpose of SEB is to compensate the injured employee for wage earning capacity he has lost as a result of his accident. Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52, 55 (La.1993); Hurst v. Baker Sand Control, 94-2463, p. 4 (La.App. 1st Cir.10/6/95), 671 So.2d 408, 411. Like all other provisions of the workers’ compensation law, the provisions governing SEB must be liberally construed in favor of coverage. Daigle v. Sherwin-Williams Company, 545 So.2d 1005, 1007 (La.1989).

The payment of SEB is governed by La. R.S. 23:1221(3), which provides benefits for injury resulting in the employee’s inability to earn wages equal to ninety percent or more of wages at time of injury, supplemental earnings benefits equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. Average monthly wages are |ficomputed by multiplying his “wages” by fifty-two and then dividing the quotient by twelve.

Thus, the claimant in a SEB case must prove by a preponderance of the evidence that his work-related injury rendered him unable to earn ninety percent of his pre-injury wages. Moore v. Mason & Dixon Tank Lines, 540 So.2d 525, 528 (La.App. 1st Cir.), writ denied, 541 So.2d 1390 (La.1989); Fusilier v. Slick Construction Company, 94-11, p. 4 (La.App. 3rd Cir.6/1/94), 640 So.2d 788, 791. It is irrelevant whether the claimant is physically able to perform his former sedentary job that is no longer available. The relevant question is whether the claimant is partially disabled and whether he is unable to earn ninety percent of the wages he was earning prior to the injury. A claimant is not entitled to SEB when his inability to earn wages equal to ninety percent of his pre-injury wages is due to circumstances other than his work-related injury. Hurst v. Baker Sand Control, 671 So.2d at 412.

Once the claimant establishes a prima facie case for his entitlement to SEB, the burden shifts to the employer to show that the claimant is physically capable of work and that the work was offered or available to the claimant in his or the employer’s community or reasonable geographic area. Daigle v. Sherwin-Williams Company, 545 So.2d at 1008-09. If the employer meets this burden, then the employee must show by clear and convincing evidence, unaided by any presumption of disability, that he is unable to perform the employment offered or available solely as a consequence of substantial pain. La. R.S. 23:1221(3)(c)(ii).

Whether a claimant’s injury prevents him from obtaining employment earning ninety percent of his pre-injury wages is a question of fact. Morris v. Norco Construction Company, 632 So.2d 332, 335 (La.App. 1st Cir.1993), writ denied, 94-0591 (La.4/22/94), 637 So.2d 163. Thus, the appellate court may not set aside the workers’ compensation judge’s findings in this regard absent manifest error or unless the findings are clearly wrong. Stobart v. State, Department of Transportation and Development, 617 So.2d at 882. Where there are two permissible views of the evidence, the factfinder’s choice between 17them cannot be manifestly erroneous or clearly wrong. Stobart v. State, Department of Transportation and Development, 617 So.2d at 883.

There is no dispute that Mr. Smith was injured in the course and scope of his employment and was therefore entitled to workers’ compensation benefits. The patties stipulated to the compensable nature of the injury at trial, and J.E. Merit did pay workers’ compensation benefits to Mr. Smith after the accident and paid for his medical bills. The conflict between the parties concerns the extent of Mr. Smith’s disability and specifically, whether Mr. Smith is still disabled and unable to earn ninety percent of his pre-injury wages. The parties do not seriously dispute that plaintiff is able to perform light duty work, but rather, the issue is whether Mr. Smith established that he is physically unable to perform work that was offered to him or that was available in the community or a reasonable geographic location.

Mr. Smith contends the OWC erred in denying him SEB. He maintains he cannot earn ninety percent of his pre-accident wages because he is incapable of returning to work at his pre-employment job. He argues that although he had worked prior to his surgery in March of 1999, the jobs were modified to meet his physical limitations. After his surgery, he asserts he was never released by any physician to return to his pre-accident job duties.

The OWC judge obviously concluded, after evaluating the testimony and medical records, that Mr. Smith failed to prove by a preponderance of the evidence that his work-related injury resulted in his inability to earn ninety percent of his pre-injury wages. After reviewing the record in its entirety, we find that a reasonable basis exists for this finding. The record reveals that Mr. Smith returned to work on numerous occasions, performing his duties as modified by J.E. Merit to accommodate Mr. Smith’s restrictions, as related by him, earning one hundred percent of his pre-injury wages. The record also reveals that, after Mr. Smith left J.E. Merit, he secured a position with Pipe & Steel Industrial Fabricators, Inc., owned and operated by Callie Sparks. Although Mr. Smith asserted that he worked part-time because of his disability, testimony provided by both Mr. Smith and Mr. Sparks indicated that a reason for the part-time loschedule was that work was not available and was not necessarily due to Mr. Smith’s disability. In fact, on occasion, Mr. Smith worked forty-hour weeks and even worked overtime when possible. The record amply supports the OWC’s finding that Mr. Smith failed to prove by a preponderance of the evidence that his work-related injury resulted in his inability to earn ninety percent of his pre-injury wages. Therefore, Mr. Smith is not entitled to SEB.

CONCLUSION

For the foregoing reasons, the judgment of the OWC is affirmed. All costs of this appeal are assessed against appellant, Chuck Smith.

AFFIRMED.


author: INLINE, Judge Pro Tem.

text:
    Pamela WILLIAMS v. Murk S. STORMS, Progressive Security Insurance Company, and Republic Lloyds Insurance Company.
    No. 2001 CA 2820.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2002.

      Johnnie A. Jones, Jr., Baton Rouge, Counsel for PlaintiffAppellant Pamela Williams.
    Sam R. Aucoin, Baton Rouge, Counsel for Defendant/Appellee Republic Lloyds Insurance Company.

      Before: FOIL, FOGG, and KLINE, JJ.

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

   INLINE, Judge Pro Tem.

This action was begun by an insured against her automobile insurer to recover damages for the allegedly negligent misrepresentation by the insurer to a third party insurer that the plaintiff lacked insurance coverage on the date she was involved in an automobile accident, triggering the penalty provisions of La. R.S. 32:866. Finding that the insurance policy in question had been properly cancelled for the time period that included the date of the accident, the district court dismissed the plaintiffs insurer on its motion for summary judgment. For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

The plaintiff, Pamela Williams, had a policy of automobile insurance with Republic Lloyds Insurance Company (“Republic”), with a policy period of September 14, 1998 through January 1, 1999. On November 17, 1998, Republic mailed to Ms. Williams a notice of cancellation for nonpayment of premiums. This notice stated that unless a payment of $223 was received by December 2, 1998, the policy would be cancelled. No payment was received by that date and the policy was cancelled.

On December 4, 1998, Ms. Williams was involved in an automobile accident with the defendant, Murk S. Storms, who was insured by Progressive Security Insurance Company (“Progressive”). Ms. Williams alleged that her vehicle was rear-ended by the vehicle driven by Mr. Storms.

On December 7, 1998, Republic forwarded a notice to Ms. Williams stating that her policy of insurance had been cancelled and containing an offer to reinstate the policy upon receipt of the unpaid premiums. The notice further stated that even though the insurance could be reinstated, there would be a lapse in coverage from December 2, 1998 until the date payment was made. Ms. Williams paid the amount due on December 14, 1998 and her insurance was reinstated as of that date. According to Republic, Ms. Williams was not covered from December 2, 1998 through December 13,1998.

LOn December 3, 1999, Ms. Williams filed suit against Mr. Storms and his insurer, Progressive, for damages she allegedly sustained in the accident. Ms. Williams also named her insurer, Republic, as a defendant, alleging that Republic misrepresented to Progressive that she was uninsured on the date of the accident. Because of this alleged misrepresentation by Republic, Ms. Williams contends that the claim she filed with Progressive was denied under the “No Pay No Play” statute, La. R.S. 32:866.

On May 23, 2001, Republic filed a motion for summary judgment, along with an affidavit by its representative stating the facts on which Republic based its position that there was a lack of coverage on the date of the accident, and including the purported notice of cancellation documents. In response, Ms. Williams filed an affidavit stating that at all pertinent times she was insured by Republic and attaching thereto her certifícate of insurance coverage.

Following a hearing on Republic’s motion for summary judgment, held on July 20, 2001, the trial court rendered summary judgment: finding Ms. Williams’ Republic policy had lapsed on the date of the accident, that she was uninsured on that date, and dismissing the suit against Republic.

From this judgment, Ms. Williams appealed and asserts to this court that the district court erred: (1) in failing to find a genuine issue of material fact was raised by plaintiffs affidavit and “Proof of Liability Insurance” card showing coverage; and (2) in failing,!» deny Republic’s motion for summary judgment.

MOTION FOR SUMMARY JUDGMENT

On appeal, summary judgments are reviewed de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Simmons v. Berry, 98-0660, p. 4 (La.App. 1st Cir. 12/22/00), 779 So.2d 910, 913-14; J. Ray McDermott, Inc. v. Morrison, 96-2337, p. 9 (La.App. 1st Cir.11/7/97), 705 So.2d 195, 202, writs denied, 97-3055, 97-3062 (La.2/13/98), 709 So.2d 753, 754. A summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of summary judgment does not dispose of the entire case. La. C.C.P. art. 966(E).

The motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Bergeron v. Williams, 99-0886, p. 4 (La.App. 1st Cir.5/12/00), 764 So.2d 1084, 1087, writ denied, 2000-1697 (La.9/15/00), 768 So.2d 1281; Sanders v. Ashland Oil, Inc., 96-1751, p. 5 (La.App. 1st Cir.6/20/97), 696 So.2d 1031, 1034, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. The motion should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action, and is now favored. La. C.C.P. art. 966(A)(2). The initial burden continues to remain with the mover to show that no genuine issue of material fact exists. Bergeron v. Williams, 764 So.2d at 1087. If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense, then the nonmoving party must produce factual support sufficient to satisfy his evidentiary burden at trial. La. C.C.P. art. 966(C)(2). If the nonmoving party fails to do so, there is no genuine issue of material fact and summary judgment should be granted. La. C.C.P. arts. 966 and 967; Bergeron v. Williams, 764 So.2d at 1087; LeJeune v. Brewster, 97-2342, p. 3-4 (La.App. 1st Cir.11/6/98), 722 So.2d 74, 76. In determining whether an issue is “genuine,” courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751.

Ir A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Hardy v. Bowie, 98-2821, p. 6 (La.9/8/99), 744 So.2d 606, 610, Smith v. Our Lady of the Lake Hospital, Inc., 639 So.2d at 751. Facts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute. South Louisiana Bank v. Williams, 591 So.2d 375, 377 (La.App. 3d Cir.1991), units denied, 596 So.2d 211 (La.1992). Simply put, a “material” fact is one that would matter on the trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. Smith v. Our Lady of the Lake Hospital, Inc., 639 So.2d at 751.

Because the applicable substantive law determines the materiality of facts in a summary judgment setting, we now turn to a discussion of the applicable law. See J. Ray McDermott, Inc. v. Morrison, 705 So.2d at 203.

CANCELLATION OF POLICY FOR NONPAYMENT OF PREMIUM

A policy of automobile insurance can only be cancelled in accordance with La. R.S. 22:636.1, which provides as follows, in pertinent part:

A. As used in this Chapter:
(6)“Nonpayment of premium” means failure of the named insured to discharge when due any of his obligations in connection with the payment of premiums on a policy, or any installment of such premium, whether the premium is payable directly to the insurer or its agent or indirectly under any premium finance plan or extension of credit.
B. (1) A notice of cancellation of a policy shall be effective only if it is based on one or more of the following reasons:
(a) Nonpayment of premium.
D. (1) No notice of cancellation of a policy to which Subsection B or C of this Section applies shall be effective unless mailed by certified mail or delivered by the insurer to the named insured at least thirty days prior to the effective date of cancellation; however, when cancellation is for nonpayment of premium at least ten days notice of cancellation accompanied by the reason therefor shall be yiven. In the event of nonpayment of premiums for a binder, a ten day notice of cancellation shall be required before the cancellation shall be effective. Notice of cancellation for nonpayment of premiums shall not be required to be sent by certified mail. Unless the reason |fiaccompanies the notice of cancellation, the notice of cancellation shall state or be accompanied by a statement that upon written request of the named insured, mailed or delivered to the insurer within six months after the effective date of cancellation, the insurer will specify the reason for such cancellation. This Subsection shall not apply to nonrenewal.
(2) There shall be no liability on the part of and no cause of action of any nature shall arise against any insurer or
its agents, employees, or representatives for any action taken by them to provide the reasons for cancellation as required by this Subsection.
* * *
F. Proof of mailing of notice of cancellation, or of intention not to renew or of reasons for cancellation, to the named insured at the address shown in the policy, shall be sufficient proof of notice.
* * *
J. Where written notice of cancellation or nonrenewal is required and the insurer elects to mail the notice, the running of the time period between the date of mailing and the effective date of termination of coverage shall commence upon the date of mailing. [Emphasis added.]

Upon determination that Ms. Williams had failed to pay the insurance premiums due, Republic’s representative, Robert Fusco, asserted in his affidavit that the annexed cancellation notice, dated November 16, 1998, was mailed to Ms. Williams. The notice was addressed to Ms. Williams at her address, 6266 Landis Drive in Baton Rouge, and stated the following, in pertinent part:

THIS IS AN OFFER TO CONTINUE YOUR AUTO INSURANCE POLICY.
CANCELLATION NOTICE IF PREMIUM NOT PAID
IF THE PREMIUM IS NOT RECEIVED IN OUR OFFICE BY THE DUE DATE. THIS IS A NOTICE OF CANCELLATION FOR NONPAYMENT OF PREMIUM EFFECTIVE AT 12:01 AM ON 12/02/98
PAYMENT OF $223.00 BY 12/02/98 WILL CONTINUE YOUR POLICY FOR THE NEXT COVERAGE PERIOD. YOUR PAYMENT MUST BE RECEIVED IN OUR OFFICE BY THE DUE DATE.
PARTIAL PAYMENTS ARE NOT ACCEPTED.
THERE IS NO GRACE PERIOD. [Emphasis original.]

17A1so attached to Mr. Fusco’s affidavit was the insurance company’s certification that the notice had been “enclosed in a sealed envelope with postage thereon fully prepaid in the United States at San Diego, California ... on 11/17/98.” Additionally, a copy of the U.S. Postal Service’s “Sender’s Statement and Certifícate of Bulk Mailing of Matter Paid with Stamps or Meter Postage” was filed into evidence showing 1,871 pieces of mail were mailed on November 17, 1998. Another notice was forwarded to Ms. Williams on December 7, 1998, stating that her policy had expired on December 1, 1998 at 12:01 a.m. and making the following offer:

THIS AUTOMOBILE INSURANCE HAS EXPIRED AS THE REQUIRED PREMIUM WAS NOT PAID BY THE DUE DATE. THERE IS CURRENTLY NO COVERAGE IN FORCE ON THIS POLICY.
YOU MAY REINSTATE THIS POLICY BY PAYING THE AMOUNT REQUIRED TO REINSTATE. THERE WILL BE A LAPSE IN COVERAGE FROM THE EXPIRATION DATE TO THE DATE WE RECEIVE YOUR FULL PAYMENT.
REINSTATEMENT OF YOUR COVERAGE WILL BE EFFECTIVE, SUBJECT TO UNDERWRITING APPROVAL, THE DATE AND TIME YOUR PAYMENT IS RECEIVED.

A reinstatement certificate was also filed into the record showing Ms. Williams’ automobile insurance was reinstated, effective December 14,1998.

In the affidavit that Ms. Williams filed into evidence, she stated that: she was domiciled at 6266 Landis Drive in Baton Rouge; the pleadings filed by Republic “represent an entire fabrication or seek to set forth facts with which [she was] unfamiliar; she never received a cancellation notice from Republic; she received only a proof of insurance card, indicating she was insured on the date of the accident; and that she never received an “Automobile Insurance Exception Notice” or a “Reinstatement Notice;” and, at the time of the accident, she had been continuously insured by Republic. Ms. Williams did not challenge the correctness of the address to which notice was sent, or the fact of nonpayment of the premiums. Annexed to Ms. Williams affidavit was a copy of a card, which read, in pertinent part:

JgLOUISIANAAUTO INSURANCE IDENTIFICATION CARD
19208 REPUBLIC LLOYD’S INSURANCE COMPANY
COMPANY NAIC NUMBER COMPANY AFFORDING COVERAGE (NAME & ADDRESS)
An insurer authorized to transact business in Louisiana has issued the Motor Vehicle Policy identified here on. The coverage provided by this policy meets the minimum liability insurance limits prescribed by law.
POLICY NUMBER EFFECTIVE DATE EXPIRATION DATE
75d2588995 9-14-98 1-1-99
NAME OF INSURED
WILLIAMS, PAMELA 6266 LANDIS DR
BATON ROUGE LA 70812

Thus, the evidence in record includes the notice that was mailed to Ms. Williams ten days prior to the date of cancellation of her insurance policy, informing Ms. Williams that her insurance was cancelled effective December 2, 1998, unless payment was received prior to that time for unpaid premiums. This evidence is countered by Ms. Williams’ testimony that she did not receive notice of cancellation and that she believed that at all pertinent times she was covered by the Republic policy of insurance. The policy was actually reinstated on December 14,1998.

In a cancellation of insurance case, the burden of proof first rests upon the insurer to prove by prima facie evidence proof of mailing' of notice to the insured. Where the insurer meets the burden of proof, a presumption of delivery is established, which then may be rebutted by the insured by proof of nondelivery. The insured has the burden of proof to establish the nondelivery. Folds v. Protective Casualty Insurance Company, 26,323, p. 6 (La.App. 2nd Cir.12/7/94), 647 So.2d 1215, 1218. When an insured has filed sworn testimony in opposition to a motion for summary judgment, denying delivery of notice of cancellation, jurisprudence has held that a genuine issue of material fact is raised thereby and summary judgment is inappropriate. See Ray v. Associated Indemnity Corporation, 373 So.2d 166, 170 (La.1979).

The problem with the jurisprudence on the issue of the application of Section 636.1 is that the cases appear to rely on jurisprudence interpreting Section 636, which is clearly a rebuttable presumption whereas 636.1 is arguably not a rebuttable presumption. This distinction is highlighted by the commentary found in W. McKenzie and H. Johnson, 15 Louisiana Civil Law Treatise, Insurance Law and Practice, § 224, pp. 487-88 (1996), wherein it is stated, “The language [of La. R.S. 22:636.1(F) ] differs from the language of [La.] R.S. 22:636 discussed above. In [Ray v. Associated Indemnity Corporation], however, the Louisiana Supreme Court overturned a summary judgment with an opinion indicating that proof of mailing created only a rebuttable presumption. The insured’s denial of receipt of notice was held to be sufficient to defeat the insurer’s motion for summary judgment. The statute, however, seems to provide unequivocally that ‘proof of mailing ... shall be sufficient proof of notice.’ ” (Footnotes omitted.)

In the Ray v. Associated Indemnity Corporation ease, sufficiency of cancellation under La. R.S. 22:636.1 was at issue. The district court had granted summary judgment in favor of the insurer, and was affirmed by the court of appeal. On review by the supreme court, the issue before the court was phrased as follows:

The insurance company therefore contends that compliance with the terms of R.S. 22:636.1 F constitutes sufficient proof of notice and that no genuine issue of material fact is raised by Ms. LaC-our’s assertion that she did not receive the premium notice. [373 So.2d at 169; footnote omitted.]

In deciding to reverse the lower court, the supreme court reasoned:

Although the instant case does not involve a cancellation notice, the rationale of [Cuccia v. Allstate Insurance Company, 262 La. 545, 263 So.2d 884, 888 (1972) ], that disputed facts should not be decided by summary judgment, is equally applicable to the case at hand. Ms. LaCour may not persuade the trier of fact that she indeed did not receive a premium notice, but the law affords her an opportunity to do so. [373 So.2d at 170.]

In accordance with those views, the supreme court reversed the grant of summary judgment in favor of the insurance company and remanded the matter for further proceedings.

This circuit has applied the supreme court jurisprudence on this issue, to disallow the resolution of the issue of receipt of notice of cancellation on motion for summary judgment. Carson v. Dickerson, 512 So.2d 1188, 1188-89 (La.App. 1st Cir.1987); Gaudet v. Crochet, 448 So.2d 221, 222 (La.App. 1st Cir.1984). Consequently, we are likewise bound by the jurisprudence to so hold.

While we recognize that these cases were decided prior to the 1996 change in the law, which now favors rendition of summary judgments, we believe they still represent a valid legal precedent. Inherent in the resolution of the issue before the court in any of these cases is the determination of whether the testimony of the insured, that notice of cancellation was not delivered, is credible. The trial court cannot make credibility determinations on a motion for summary judgment. Independent Fire Insurance Company v. Sunbeam Corporation, 99-2181, p. 16 (La.2/29/00), 755 So.2d 226, 236. In deciding a motion for summary judgment, the court must assume that all of the affiants are credible. Inasmuch as summary judgments deprive the litigants of the opportunity to present their evidence to a jury, they should be granted only when the evidence presented at the motion for summary judgment establishes that there is no genuine issue of material fact in dispute. Knowles v. McCright’s Pharmacy, Inc., 34,559, p. 3 (La.App. 2nd Cir.4/4/01), 785 So.2d 101, 103.

Consequently, we are compelled to conclude that Ms. Williams’ denial that delivery was made of the notice of cancellation of her automobile insurance policy has raised a genuine issue of material fact, rendering summary judgment inappropriate. That is not to say that Ms. Williams will prevail at the trial on the merits, rather, that the matter presented a credibility determination that cannot be made on motion for summary judgment.

In CONCLUSION

For the reasons assigned herein, the summary judgment in favor of Republic Lloyds Insurance Company is hereby reversed, and the matter is remanded to the trial court for further proceedings consistent with the foregoing. All costs of this appeal are assessed to appellee, Republic Lloyds Insurance Company.

REVERSED AND REMANDED.

      . Mr. Storms was also referred to in the record as Mark S. Storm.

      . Louisiana Revised Statutes 32:866(A)(1) provides: "There shall be no recovery for the first ten thousand dollars of bodily injury and no recovery for the first ten thousand dollars of property damage based on any cause or right of action arising out of a motor vehicle accident, for such injury or damages occasioned by an owner or operator of a motor vehicle involved in such accident who fails to own or maintain compulsory motor vehicle liability security.”

      . Following the summary judgment in favor of Republic and the filing of a motion for appeal of that judgment by Ms. Williams, a summary judgment was signed on October 31, 2001, in favor of Progressive, precluding Ms. Williams “from recovering the first $10,000 at trial for bodily injury and/or property damage” under the penalty provisions of La. R.S. 32:866. Ms. Williams has also filed an appeal from this judgment that has been docketed in this court under number 2002-1255, and which will be decided by another panel of this court.

      . Prior to the enactment of La. R.S. 22:636.1 La.1968 La. Acts, No. 632, § 1, which contained the language referenced above, cancellation of an insurance policy was governed by La. R.S. 22:636. On this issue, La. R.S. 22:636(C) provides, “The affidavit of the individual making or supervising such a mailing, shall constitute prima facie evidence of such facts of the mailing as are therein affirmed.”

      . The Cuccia case involved the application of La. R.S. 22:636.

      . Although we are compelled to follow the jurisprudential interpretation on this issue, certain questions are raised. The duty imposed upon the insurer is notice of cancellation under La. R.S. 22:636.1. It seems the fulfillment of that duty is provided in the statute; i.e., "proof of mailing .. . shall be sufficient proof of notice.” Is proof of receipt additionally required? As part of the inquiry, can the insured by affidavit in opposition to summary judgment simply deny receipt of the cancellation notice, cause it to be a material fact in the summary judgment proceeding, create a credibility issue, and relegate determination of the issue of receipt to a trial? If so, a simple denial of receipt of notice of cancellation can always defeat use of summary judgment.

      . See Royal Maccabees Life Insurance Company v. Montgomery, 97-1434, p. 6 (La.App. 1st Cir.6/29/98), 716 So.2d 921, 924, writ denied, 98-2664 (La. 12/11/98), 730 So.2d 940.


author: | ¡.KLINE, Judge pro tem.

text:
    Hollis PIATKOWSKI v. WAL-MART STORES.
    No. 2001 CA 2781.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2002.

      Prescott Lee Barfield, Mandeville, Counsel for Plaintiff/Appellee Hollis Piat-kowski.
    Frank A. Flynn, Lafayette, Counsel for Defendant/Appellant Wal-Mart Stores, Inc.
    Before: FOIL, FOGG, and KLINE, JJ.

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

   | ¡.KLINE, Judge pro tem.

This workers’ compensation action is before us on appeal from a judgment in favor of the claimant, Hollis Piatkowski, and against her employer, Wal-Mart Stores, Inc. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Hollis Piatkowski had been an employee of Wal-Mart Stores, Inc. for five years prior to January 19, 2000, when she alleged that she injured herself lifting heavy merchandise while serving at the register as a cashier. Prior to this date, Ms. Piat-kowski had suffered with lower back pain and was already under the care of a chiropractor, Dr. Fred Fernandez. Ms. Piat-kowski had previously turned in a doctor’s slip to Mary Worley, the personnel manager at Wal-Mart, which stated that she needed to be put on light duty. In her five years of working at Wal-Mart, Ms. Piat-kowski had always been restricted from lifting heavy items. As a result, Ms. Piat-kowski should not have been serving as a cashier, because the cashier position was not considered a light duty position. According to Ms. Worley, she remembered that Ms. Piatkowski gave her the slip and she admitted that she failed to inform the “front end” manager, Jennifer Sepulvado, that Ms. Piatkowski should not be on the register. Ms. Worley stated she thought Ms. Piatkowski would inform the “front end” manager. It was not until after the accident that Ms. Worley related to Ms. Sepulvado that Ms. Piatkowski should not have been on a register.

When the accident occurred, according to Ms. Piatkowski, she assumed that the pain was the same that she had experienced before and that it would subside. As a result, she continued her shift as a cashier for that day but did not report the accident on that day. Thereafter, she missed several days of work. When the pain did not subside, she made an appointment to see her physician. Once she returned to work at Wal-Mart, she informed her superiors that she had injured her back as a result of lifting heavy merchandise some time before, and requested that Wal-Mart help pay her medical bills. There was some confusion and denial about whether Ms. Piatkowski had specifically stated that she had lifted a twenty-five pound bag of dog food. According to Ms. Piatkowski, she vindicated to Ms. Worley that it could have been a twenty-five pound bag of dog food that she had lifted but she was not sure. However, she related to Dr. Stuart Phillips on a written questionnaire that she hurt her back while lifting a twenty-five pound bag of dog food. Wal-Mart reviewed the electronic journal of the cashier receipts and found no evidence of a twenty-five pound bag of dog food having been scanned on that day. As a result, Wal-Mart declined to pay Ms. Piatkowski’s medical bills.

On May 12, 2000, Ms. Piatkowski filed a “Disputed Claim For Compensation” alleging a work-related injury to her hip. Wal-Mart answered Ms. Piatkowski’s claim denying that Ms. Piatkowski had suffered injuries related to an accident on January 19, 2000. Based on the circumstances, Wal-Mart denied Ms. Piatkowski indemnity benefits and medical benefits.

This matter was heard by the Office of Workers’ Compensation (“OWC”) on August 24, 2001. At the conclusion of trial, the OWC asked the attorneys to submit post-trial memorandums and took the matter under advisement. Thereafter, on September 21, 2001, the OWC rendered judgment in favor of Ms. Piatkowski, finding the following:

IT IS ORDERED, ADJUDGED AND DECREED that claimant, Hollis Piatkowski, has carried her burden of proof as to the accident and subsequent injury of January 19, 2000, and she is hereby entitled to indemnity and medical benefits.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendant’s, Wal-Mart Stores, actions prior to the accident of January 19, 2000 were unreasonable for nonpayment of benefits, and therefore, the defendant is hereby assessed with penalties in the amount of $2000.00. (Emphasis added.)
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendant, Wal-Mart Stores, did not reasonably controvert the claim; and therefore, the defendant is hereby assessed with attorney fees in the amount of $2000.00.

Wal-Mart appealed this judgment and asserts the OWC erred in finding the plaintiff failed to carry the requisite burden of proof in establishing the occurrence of a work accident and resulting work injury by competent and reliable evidence. Wal-Mart further urges error in finding the employer responsible for a $2000 penalty and $2000 in attorney fees particularly since there continues throughout this litigation to be substantial factual and legal issues 14upon which the employer should be able to reasonably rely without fear of unwarranted assessment of penalties and attorney fees.

LAW AND DISCUSSION

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

In order for a claimant to be entitled to recover workers’ compensation benefits, he must prove, by a preponderance of the evidence, that a work-related accident occurred and that an injury was sustained. A claimant’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident, and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Williams v. Wal-Mart Stores, Inc., 2000-1347, p. 4 (La.App. 1st Cir. 9/28/01), 809 So.2d 294, 298.

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

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

The manifest error test requires the reviewing court to consider the record as a whole to ascertain whether the trier of fact’s findings constituted manifest error. Since the trier of fact’s findings are accorded great weight on appeal, the Louisiana Supreme Court has set forth a two-part test for use by appellate courts in applying the manifest error standard of review. First, the appellate court must conclude from the record that a reasonable factual basis does not exist for the trier of fact’s findings. Second, the appellate court must determine that the ^findings were clearly wrong based on the record. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993).

The defendant has challenged the OWC judge’s finding that Ms. Piatkowski carried the requisite burden of proof in establishing (1) the occurrence of a work accident on January 19, 2000, (2) the aggravation of her substantial pre-existing back condition on that date, and (3) the entitlement to disability and medical benefits in light of the plaintiffs substantial pre-existing and chronic lower back condition which predated the January 19, 2000 date.

In regard to the occurrence of the work related accident, defendant argues that it was not witnessed nor reported until five days later on January 25, 2000. The objective circumstance most favorable to the plaintiff is that she was assigned to the cashier’s position which required lifting of merchandise. Plaintiff had previously provided defendant with a prescription from her treating chiropractor, Dr. Fernandez, requiring light duty assignment. Plaintiff further related that at the time of her hiring that she informed Wal-Mart that she had prior back surgery and had a fifty pound lifting limitation. During her five year employment, she related that she was never assigned jobs that required heavy lifting until assigned to the cash register.

Through lapses of communication between supervisors, and by her own failure to complain, the plaintiff was assigned to the register. Because plaintiff was in a particular assignment in the course and scope of her employment that had the potential for the occurrence of the type injury that plaintiff relates, this circumstance may be considered favorable to her credibility.

Defendant contends, however, that there are several facts that challenge plaintiffs credibility relative to the occurrence of an accident. First, the equivocation about what was lifted. It is not clear whether the twenty-five pound bag of dog food was suggested to her as the possible burden that caused the injury or whether the plaintiff surmised that it was. It is clear, however, that plaintiff unequivocally related on a questionnaire in Dr. Stuart Phillips’s office that she was injured lifting a twenty-five pound bag of dog food on January 19, 2000. 17It is likewise uncontro-verted that the registry records of January 19, 2000 contain no sale of a twenty-five pound bag of dog food.

Secondly, plaintiff testified in a pretrial deposition that she reported the accident on January 19, 2000, but when confronted at trial, she admitted that her statement in the deposition was not the truth, and that she did not report it until January 25, 2000.

Thus, whether plaintiff met the burden of proof of an accident on January 19, 2000 is dependent upon the acceptance of her truthfulness under the circumstances here-inabove recited. We reiterate that the determination by a workers’ compensation judge as to whether the claimant’s testimony is credible and whether the claimant has discharged her burden of proof are factual determinations and will not be disturbed upon review in the absence of manifest error or unless clearly wrong.

In this case, it is apparent that'the OWC found Ms. Piatkowski to be a credible witness and concluded that the work related accident of lifting merchandise while working as a cashier occurred and caused injury to her left hip. Defendant argues that even if the OWC determined that a work-related accident occurred, that Ms. Piat-kowski did not satisfy her burden of proving that that accident caused her injury, as she already had an extensive history of chronic lower back problems. The particular issue was raised that Ms. Piatkowski failed to disclose in her medical history to her treating physicians that she was, at the time of the accident, under the care of Dr. Fernandez, for complaints similar to those caused by the accident.

Ms. Piatkowski sought treatment by Dr. Stuart Phillips on March 9, 2000. She stated she had a work-related accident lifting a bag of dog food off a conveyor belt and twisted to the left and felt and heard a pop in her lower back. She also stated that in 1984, she was treated by Dr. Bruce Razza and had an anterior lumbar fusion. She told Dr. Phillips that she was out of work for five years following the 1984 accident. She also told the doctor that she was experiencing pain prior to the date of the accident. He undertook a physical exam on March 9, 2000. According to Dr. Phillips, Ms. Piatkowski had findings of |sa back injury. The results of the exam included a mild to moderate paravertebral muscle spasm and tenderness in the lower lumbar spine on the sacroiliac joint on the left. X-rays showed that she had sprained her sacroiliac joint. He injected her back with steroids, which afforded her some relief. He also put her in a corset, started physical therapy, prescribed anti-inflammatory drugs, and told her not to work for two weeks.

Dr. Phillips was not aware that Ms. Piatkowski had any extensive treatment after 1990 for continued low back pain and left hip or left leg or left-sided pain. He was not aWfire that Dr. Razza was recommending a fusion in 1993. However, he did testify to the fact that he had in his report that Ms. Piatkowski had been treated by a chiropractor for lumbar treatment. He admitted that his medical history for Ms. Piatkowski was imprecise, but also indicated that it would not surprise him that considering her bad back that Ms. Piatkowski would have been under that care prior to the accident.

Dr. Nutik first saw Ms. Piatkowski on October 11, 2000. She was referred to Dr. Nutik through Claims Management, Inc., Wal-Mart’s guarantor of payment of services provided for workers’ compensation, by Diana Knighting. After reviewing the history given by Ms. Piatkowski and the results of clinical examination, Dr. Nutik’s initial diagnosis was soft tissue muscle strain or left-sided sacroiliac joint strain that had become chronic. Based upon the history that Ms. Piatkowski had given, Dr. Nutik determined that her pain started only after she had lifted the merchandise and so was a work related injury. After learning at the time of deposition that the patient left out certain information regarding her history prior to the accident, he determined that she had a pre-existing left hip problem and that she had seen a chiropractor for those prior symptoms that might have been exacerbated by the lifting incident. According to Dr. Nutik, Ms. Pi-atkowski denied any other history of hip pain. He stated that he asked her specifically if she had any prior history of hip pain prior to the accident and she said, “No.” Ms. Piatkowski did not state specifically that she had lifted a twenty-five pound bag of dog food. She was not able to state exactly what she had lifted. Dr. Nutik did, however, testify to the fact that he did have access to Dr. | nPhillips’s medical reports where it was noted that Ms. Piatkowski was under the care of a chiropractor. He indicated that he did not typically review reports prior to a patient’s visit.

Ms. Piatkowski also was examined by an OWC-ordered independent medical examiner, Dr. Henry Eiserloh. Dr. Eiserloh concluded, after evaluating Ms. Piatkow-ski’s prior medical history and conducting physical examination, that Ms. Piatkowski suffered with chronic lumbar spine problems.

As previously indicated, the determinations by the OWC judge as to whether Ms. Piatkowski’s testimony is credible, and whether Ms. Piatkowski has discharged her burden of proof are factual determinations that will not be disturbed on review in the absence of manifest error. Although certain inconsistencies exist in Ms. Piatkowski’s testimony regarding what she exactly lifted to cause the accident and also in her reporting her treatment by her chiropractor, Dr. Fernandez, to the other physicians, the OWC could have determined that Ms. Piatkowski injured herself while lifting something on the register at Wal-Mart. Although we may have arrived at a different conclusion, based upon a complete review of the record, we cannot say that there is no reasonable basis for the OWC’s findings. Thus, we affirm this past of the OWC’s judgment.

Finally, Wal-Mart asserts that the OWC erred in 'awarding Ms. Piatkow-ski penalties and attorney fees. An assessment of penalties for nonpayment of workers’ compensation benefits is proper unless the nonpayment results from conditions over which the employer or insurer have no control or unless the employee’s right to such benefits has been reasonably controverted. Jackson v. Savant Insurance Company, 694 So.2d at 1184. La. R.S. 23:1201.2 provides for the assessment of attorney fees against an insurer who arbitrarily, capriciously, or without probable cause has refused to timely pay workers’ compensation benefits. A claimant is not entitled to an award of penalties or attorney fees where a rational basis exists for the refusal to pay. Jackson v. Savant Insurance Company, 694 So.2d at 1184. When considering the record in its entirety, including the discrepancy surrounding the twenty-five pound bag of imdog food, and the review of the electronic journal of Ms. Piatkowski’s cash register, and the circumstances of the late reporting of the accident, we find that Wal-Mart had a rational basis for refusing to pay Ms. Piat-kowski’s claim. We reverse the award of penalties and attorney fees assessed against Wal-Mart.

CONCLUSION

For the above and foregoing reasons, the judgment of the OWC finding in favor of Ms. Piatkowski is affirmed in part, reversed in part. Costs associated with this appeal are assessed against Wal-Mart Stores, Inc.

AFFIRMED IN PART, REVERSED IN PART.