author: LAMY, Judge.

text:
    Lawanda THEODILE v. RPM PIZZA, INC.
    No. 03-987.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2004.

      Christopher A. Edwards, Edwards Law Firm, Lafayette, LA, for Plaintiff/Appellant, Lawanda Theodile.
    William H. Parker, III, Allen & Gooch, Lafayette, LA, for Defendant/Appellee, RPM Pizza, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   LAMY, Judge.

The claimant filed a workers’ compensation claim, seeking penalties and attorney’s fees related to the untimely payment of medical expenses she contends resulted from an automobile accident occurring during the course and scope of her employment. After a tentative settlement was reached for the $10,000 limits of the other driver’s insurance policy, the claimant’s attorney filed a Motion to Disburse Funds, asserting that the attorney’s privilege included medical expenses paid or guaranteed on the claimant’s behalf. The workers’ compensation provider asserted that the medical expenses did not constitute a fee as determined in the attorney’s privilege statutes. The workers’ compensation judge concluded that the medical expenses did not constitute a fee, thereby finding the workers’ compensation lien superior to those for the medical expenses. For the following reasons, we reverse the ruling and remand for further proceedings.

Factual and Procedural Background

The claimant alleges that she was injured in an automobile accident occurring during the course and scope of her employment with the defendant, RPM Pizza, Incorporated. The claimant made both a personal injury claim against the other driver involved in the accident and the driver’s insurance provider. The claimant hired the Edwards Law Firm to represent her in the personal injury claim. A contingency contract for one-third of the recovery or settlement was entered into. The contract, entitled “Retainer Agreement,” authorized the attorney to:

[ Ijncur and pay on CLIENT’S behalf for expenses such as but not limited to investigation and prosecution of claim, witness and expert fees, travel expenses, paralegal expenses, office expenses, mileage reimbursement, medical expenses, court reporters’ fees, copying charges, bonds, telephone expenses, postage, clerks’ and sheriffs’ fees, and in connection therewith, said ATTORNEY is authorized to make direct disbursement thereof from any settlement or recovery to pay such expenses and/or reimburse ATTORNEY for such expenses he has | ^previously advanced, said disbursement to be in addition to the fee called for above.

During the course of the representation, the Edwards Firm expended or guaranteed approximately $7,880.61 in medical and associated costs.

The Disputed Claim for Compensation was filed instituting the workers’ compensation portion of the claim on March 26, 2003. The claimant alleged that the automobile accident occurred while she was driving to a work-related meeting and that “some medical treatment” recommended by her physician was not paid by the employer within sixty days. She sought penalties and attorney’s fees associated with the alleged failure to pay. She noted that: “Concursus proceeding necessary to disburse third party settlement funds to claimant’s attorney to pay attorney fees, attorney costs, and medicals paid by claimant and to set amount owed by employer/insurer to claimant in medicals in excess of settlement amount.”

Relevant to the matter now before the court, the claimant also filed a Motion to Disburse Settlement Funds and For Approval of Settlement. The motion noted that a tentative settlement on the underlying tort claim had been reached for the $10,000:00 policy limits of the other driver’s automobile insurance policy. However, the motion alleged, due to the one-third contingency contract and the $7,880.61 in expenses incurred, the claimant would be left after settlement, still owing in excess of one thousand dollars in medical expenses. However, the motion continues, the workers’ compensation insurer “has alleged that it is entitled to reimbursement out of the proceeds of the third party claim, and that it should be paid out of the settlement proceeds for any amounts they have already paid.” Due to this, the | ¡¡claimant alleged, the insurer had failed to authorize the settlement. The claimant asked the Office of Workers’ Compensation to order the insurer, Liberty Mutual Insurance Company, to approve the settlement and to continue workers’s compensation benefits following the third-party settlement.

When the matter was heard by the workers’ compensation judge, the issue remaining was whether the medical expenses forwarded/guaranteed by the claimant’s attorney were to be considered a part of the attorney’s fee and, therefore, a superior privilege to the statutory lien available to the workers’ compensation insurer for those sums it had provided. Observing that the one-third contingency fee, or “clear fee” as it was termed by the workers’ compensation judge, would have first priority from the $10,000.00, the workers’ compensation judge found that the medical expenses and associated costs “do not prime the workers’ comp lien[.]” The judgment subsequently signed stated:

IT IS ORDERED, ADJUDGED AND DECREED that out of $10,000.00 available from the insurer, U.S. Agencies Casualty Insurance Company, Inc. in the automobile accident third party claim of September 3, 2002, that LAWANDA THEODILE’S attorney, Christopher A. Edwards and Edwards Law Firm have a first privilege and lien on attorney fees which represent only the one-third contingency fee and no costs, expenses or medical paid by or guaranteed on behalf of Christopher A. Edwards and Edwards Law Firm or LAWANDA THEODILE in the prosecution of her automobile accident third party claim.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Liberty Mutual Insurance Company is entitled to reimbursement of all amounts that they have paid for workmen’s compensation weekly benefits or medical in preference to any attorney expenses, attorney costs, or attorney advances for medicals on behalf of LAWANDA THEODILE for injuries received from the accident of September 3, 2002.

The claimant’s attorney appeals, assigning the following as error:

|41) The Administrative Law Judge was manifestly erroneous in her assessment of the priority of liens in ordering a workmen’s compensation insurance carrier to be reimbursed before payment of medicals and attorney fee costs, expenses and guaranteed medicals.

Discussion

The priority of the attorney’s lien for the contingency fee is not in question. The sole question before the court is whether those medical and related expenses are a part of the attorney’s fee subject to the attorney’s lien. Claimant’s counsel asserts that La.R.S. 37:218 and La.R.S. 9:5001, which govern the attorney’s lien, should be viewed as including medical expenses.

The Workers’ Compensation Lien

The competing privilege, that advanced by the workers’ compensation insurer, is contained in La.R.S. 23:1103, which provides in part:

A. (1) In the event that the employer or the employee or his dependent becomes party plaintiff in a suit against a third person, as provided in R.S. 23:1102, and damages are recovered, such damages shall be so apportioned in the judgment that the claim of the employer for the compensation actually paid shall take precedence over that of the injured employee or his dependent; and if the damages are not sufficient or are sufficient only to reimburse the employer for the compensation which he has actually paid, such damages shall be assessed solely in his favor; but if the damages are more than sufficient to so reimburse the employer, the excess shall be assessed in favor of the injured employee or his dependent, and upon payment thereof to the employee or his dependent, the liability of the employer for compensation shall cease for such part of the compensation due, computed at six percent per annum, and shall be satisfied by such payment. The employer’s credit against its future compensation obligation shall be reduced by the amount of attorney fees and court costs paid by the employee in the third party suit.
B. The claim of the employer shall be satisfied in the manner described above from the first dollar of the judgment without regard to how the damages have been itemized or classified by the judge or jury. Such first dollar satisfaction shall be paid from the entire judgment, regardless of whether the judgment includes compensation for losses other than medical expenses and lost wages.

15Thus, in the event that a claimant has a right of recovery against a tortfeasor, workers’ compensation insurers who have provided compensation benefits have certain rights of recovery. Liberty Mutual contends that the privilege it enjoys under La.R.S. 23:1103 places it in a superior position to the counsel’s attempt to recover the claimed medical and related expenses. Although it concedes that La.R.S. 23:1103 is a secondary lien to the attorney’s fee lien provided by La.R.S. 37:218, discussed below, it contends the medical expenses fall outside of that lien.

The Attorney Privilege

La.R.S. 37:218 provides:

A. By written contract signed by his client, an attorney at law may acquire as his fee an interest in the subject matter of a suit, proposed suit, or claim in the assertion, prosecution, or defense of which he is employed, whether the claim or suit be for money or for property. Such interest shall be a special privilege to take rank as a first privilege thereon, superior to all other privileges and security interests under Chapter 9 of the Louisiana Commercial laws. In such contract, it may be stipulated that neither the attorney nor the client may, without the written consent of the other, settle, compromise, release, discontinue, or otherwise dispose of the suit or claim. Either party to the contract may, at any time, file and record it with the clerk of court in the parish in which the suit is pending or is to be brought or with the clerk of court in the parish of the client’s domicile. After such filing, any settlement, compromise, discontinuance, or other disposition made of the suit or claim by either the attorney or the client, without the written consent of the other, is null and void and the suit or claim shall be proceeded with as if no such settlement, compromise, discontinuance, or other disposition has been made.
B. The term “fee”, as used in this Section, means the agreed upon fee, whether fixed or contingent, and any and all other amounts advanced by the attorney to or on behalf of the client, as permitted by the Rules of Professional Conduct of the Louisiana State Bar Association.

| ^Turning to the Rules of Professional Conduct referenced in Paragraph B, above, Rule 1.8 provides:

As a general principle, all transactions between client and lawyer should be fair and reasonable to the client. Furthermore, a lawyer may not exploit his representation of a client or information relating to the representation to the client’s disadvantage. Examples of violations include, but are not limited to, the following:
(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:
(1) A lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and
(2) A lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.

Thus, the question in this case is whether the expenses paid or guaranteed by the claimant’s counsel are “court costs and expenses of litigation.” Our consideration of Rule 1.8, above, indicates that, in this case, they are to be considered as those permissibly advanced by the attorney.

In Dupuis v. Faulk, 609 So.2d 1190 (La.App. 3 Cir.1992), a panel of this court concluded that both medical and living expenses advanced to clients in a personal injury suit are recoverable under Rule 1.8(e). In finding the expenses those in-eluded in Rule 1.8(e), the panel referenced the Louisiana Supreme Court’s decision in La. State Bar Assoc. v. Edwins, 329 So.2d 437, 446 (La.1976), wherein it was explained that: “Nor do we see how a lawyer’s guarantee of necessary medical treatment for his client ... can be regarded as unethical, if the lawyer for reasons for humanity can afford to do so.” See also Billiot v. K-Mart Corp., 99-1569 (La.App. 1 Cir. 6/23/00), 764 So.2d 329, writ denied, 00-2211 (La.10/13/00), 771 So.2d 653.

Accordingly, we conclude that the workers’ compensation judge erred in concluding that the medical expenses and related costs advanced by the claimant’s counsel were not to be included in those sums recoverable under La.R.S. 37:218, which provides that both the “agreed upon fee, whether fixed or contingent, and any and all other amounts advanced by the attorney or on behalf of the client, as permitted by the Rules of Professional Conduct of the Louisiana State Bar Association.” (Emphasis added). As the $7,880.61 claimed by claimant’s counsel represents figures acceptable under the Rules of Professional Conduct, those are ordered to be included among the first privilege and lien enjoyed by the claimant’s counsel pursuant to La.R.S. 23:218.

DECREE

The ruling of the Office of Workers’ Compensation is reversed insofar as it excludes the $7,880.61 in medical and litigation-related expenses from the attorney’s privilege and lien of Christopher A. Edwards and the Edwards Law Firm. The ruling is amended to include those expenses in the lien. All costs of this proceeding are assessed against the appellee, Liberty Mutual Insurance Company. This matter is remanded for further proceedings.

REVERSED, RENDERED AND REMANDED.

      . The record indicates that, at some point in time, the defendant's compensation insurer began providing medical expenses.

      . Advanced by claimant's counsel, La.R.S. 9:5001 provides:
      A. A special privilege is hereby granted to attorneys at law for the amount of their professional fees on all judgments obtained by them, and on the property recovered thereby, either as plaintiff or defendant, to take rank as a first privilege thereon superi- or to all other privileges and security interests under Chapter 9 of the Louisiana Commercial Laws.
      B. The term "professional fees”, as used in this Section, means the agreed upon fee, whether fixed or contingent, and any and all other amounts advanced by the attorney to or on behalf of the client, as permitted by the Rules of Professional Conduct of the Louisiana State Bar Association.
      (Emphasis added). As is reflected in the statute's use of "judgment,” the privilege of La. R.S. 9:5001 is applicable only to judgments, not settlements. See Calk v. Highland Const. & Mfg., 376 So.2d 495 (La.1979). Therefore, it is inapplicable to the present case.


source: Caselaw Access Project

author: IvAMY, Judge.

license: Public Domain

text:
    Kathryn C. ORTEGO v. TUNICA BILOXI INDIANS OF LA d/b/a Paragon Casino.
    No. 03-1001.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2004.

      Knight E. Doggett, Flournoy & Doggett, Alexandria, LA, for Plaintiff/Appellant, Kathryn C. Ortego.
    Joseph B. Guilbeau, Juge, Napolitano, Guilbeau, Ruli & Frieman, Metairie, LA, Brent P. Frederick, Breazeale, Sachse & Wilson, L.L.P., Baton Rouge, LA, for Defendant/Appellee, Tunica Biloxi Indians of LA, d/b/a Paragon Casino.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   IvAMY, Judge.

In this workers’ compensation matter, the claimant, who allegedly suffered a work-related accident in March 2001 at the employer-tribe’s casino, filed a disputed-claim form contesting the employer’s termination of her benefits. More than a year after the disputed claim was filed, and after the employer had answered, prepared pre-trial statements, and had twice fixed the case for trial, it filed an exception of lack of subject matter jurisdiction, citing a new tribal ordinance providing for the resolution of workers’ compensation disputes exclusively within tribal courts. The workers’ compensation judge granted the exception and dismissed the claimant’s cause of action. From this judgment, the claimant appeals. We affirm.

Factual and Procedural Background

The record indicates that the claimant, Kathryn Ortego, was employed as a bar-back/laborer by the Tunica-Biloxi Indians of Louisiana, d/b/a Paragon Casino (“the Tribe”), in Marksville, Louisiana. While at work on the morning of March 11, 2001, Ms. Ortego sustained chemical burns. She reported the injury to her supervisors that same morning and sought medical assistance. As a result of her injury, Ms. Ortego received workers’ compensation benefits until May 2001, when they were terminated. Ms. Ortego filed a disputed claim with the Office of Workers’ Compensation on October 26, 2001. The record reflects that over approximately the next year and a half, the Tribe answered Ms. Ortego’s disputed-claim petition, prepared pre-trial statements, and agreed to have the case fixed for hearing on two separate occasions.

On March 7, 2003, the Tribe filed a declinatory exception of lack of subject matter jurisdiction, arguing that it was immune from suit due to its sovereign status; that it had not waived this immunity; and that the 1992 Class III gaming compact | ^between it and the State of Louisiana specifically reserved jurisdiction to the Tribe over civil matters relevant to gaming. The Tribe further pointed out that a recent tribal ordinance dictated that workers’ compensation claims were to be heard by tribal courts and that thesé tribunals were to apply Louisiana workers’ compensation law, as outlined in La.R.S. 23:10, ef seq. In his written reasons for judgment, the workers’ compensation judge noted that sovereign status had been conferred upon the Tribe and that it had not waived its immunity to suit. Moreover, he noted, the recent tribal constitutional ordinance reaffirmed the Tribe’s immunity and provided that Tunica-Biloxi court was the sole forum for resolution of workers’ compensation suits arising from activities conducted on tribal land. Accordingly, the workers’ compensation judge granted the Tribe’s exception and dismissed Ms. Ortego’s claims. In her sole assignment of error on appeal, Ms. Ortego contends that the workers’ compensation judge erred as a matter of law in granting the Tribe’s exception of lack of subject matter jurisdiction and in dismissing her claims against the Tribe and its workers’ compensation insurer. For the following reasons, we affirm.

Discussion

On appeal, Ms. Ortego insists that the Class III gaming compact between the Tribe and the State clearly indicates that the State retained jurisdiction over workers’ compensation claims arising from tribal gaming enterprises. Ms. Ortego cites several provisions of the compact in support of her position. First, she argues, § 1(A) states that where the compact is silent, the laws of Louisiana apply. Ms. Ortego observes that the compact does not address workers’ compensation claims; as such, she posits, Louisiana workers’ compensation law is in effect with respect to tribal business | ¡¡enterprises. Ms. Ortego’s second contention is that a reading of § 3(B) and § 3(C) evinces the drafters’ intent that the State retain jurisdiction over constitutionally mandated matters such as workers’ compensation. Third, Ms. Ortego points out that §§ 10(A)(4)(a), (c), and (d) of the compact require the Tribe to maintain workers’ | ¿compensation insurance and mandate that the terms of each policy preclude the Tribe from claiming sovereign immunity in defense of liability. Ms. Ortego argues that these provisions of the compact suggest that the Tribe does not have sovereign immunity with respect to workers’ compensation claims such as hers. Fourth, Ms. Ortego points out that § 2(H) plainly indicates that the State did not cede its jurisdiction over workers’ compensation claims to the Tribe. In her fifth argument, Ms. Ortego points out that § 10(A)(6) of the compact gives the Tribe jurisdiction over tort claims initiated by casino patrons. She notes that this jurisdiction is expressly Isgiven and contends that a similar grant of workers’ compensation jurisdiction to the Tribe would have likewise been expressly conferred by the compact. Ms. Ortego observes that the compact is silent with respect to workers’ compensation jurisdiction; as such, one could infer that it was not given to the Tribe. Finally, Ms. Ortego emphasizes that according to its terms, the compact could only be amended by a written instrument signed by the tribal chairman and by the governor of Louisiana, with the Secretary of the Interior’s approval. Ms. Ortego notes that the compact comprises the entire agreement between the Tribe and the State of Louisiana, and the newly enacted ordinance purporting to give the Tribe exclusive jurisdiction over workers’ compensation matters cannot su-percede the compact because the ordinance was not signed by the governor of Louisiana and was not approved by the Secretary of the Interior. Ms. Ortego cites each of the above portions of the compact in support of her position that her claim should have been allowed to proceed in a Louisiana workers’ compensation court.

In reviewing the propriety of a workers’ compensation judge’s ruling as to factual issues, an appellate court employs the manifest error — clearly wrong standard, as set forth by the Louisiana Supreme Court in Rosell v. ESCO, 549 So.2d 840 (La.1989). Whitlow v. The Shreveport Times, 02-1215 (La.App. 3 Cir. 4/23/03), 843 So.2d 665, writ denied, 03-1406 (La.9/19/03), 853 So.2d 647. However, where a party contends that a ruling is incorrect due to errors of law, the appellate court must 1 ^ascertain whether the ruling in question was legally correct. Belaire v. Don Shetler Olds Buick Chevrolet, 02-1152 (La.App. 3 Cir. 6/4/03), 847 So.2d 723.

The Tribe based its exception of lack of subject matter jurisdiction on the doctrines of tribal sovereign immunity and exhaustion of tribal remedies. These doctrines were born of and developed by the federal jurisprudence. Our determination as to the legal correctness of the workers’ compensation judge’s ruling requires that we examine the relevant federal case law and the scant relevant jurisprudence of Louisiana courts.

In Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978), the United States Supreme Court outlined the history of the grant of sovereign immunity, usually conferred upon the States and foreign nations, to recognized Native American tribes. The Supreme Court observed that “[a]s separate sovereigns pre-existing the Constitution, tribes have historically been regarded as unconstrained by those constitutional provisions framed specifically as limitations on federal or state authority.” Id. at 56, 98 S.Ct. at 1675-76. The Court further noted that:

Indian tribes are “distinct, independent political communities, retaining their original natural rights” in matters of local self-government. Worcester v. Georgia, 6 Pet. 515, 559, 8 L.Ed. 483 (1832); see United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 717, 42 L.Ed.2d 706 (1975); F. Cohen, Handbook of Federal Indian Law 122-123 (1945). Although no longer “possessed of the full attributes of sovereignty,” they remain a “separate people, with the power of regulating their internal and social relations.” United States v. Kagama, 118 U.S. 375, 381-382, 6 S.Ct. 1109, 1112-1113, 30 L.Ed. 228 (1886). See United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978).

Id. at 55, 98 S.Ct. at 1675. Moreover, the Court provided the following description of tribal sovereign immunity and the means by which a tribe might become susceptible to suit:

17Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers. Turner v. United States, 248 U.S. 354, 358, 39 S.Ct. 109, 110, 63 L.Ed. 291 (1919); United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 512-513, 60 S.Ct. 653, 656, 84 L.Ed. 894 (1940); Puyallup Tribe, Inc. v. Washington Dept. of Game, 433 U.S. 165, 172-173, 97 S.Ct. 2616, 2620-2621, 53 L.Ed.2d 667 (1977). This aspect of tribal sovereignty, like all others, is subject to the superior and plenary control of Congress. But “without congressional authorization,” the “Indian Nations are exempt from suit.” United States v. United States Fidelity & Guaranty Co., supra, 309 U.S., at 512, 60 S.Ct. at 656.
It is settled that a waiver of sovereign immunity “ ‘cannot be implied but must be unequivocally expressed.’ ” United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976), quoting, United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52 (1969).

Id. at 58-59, 98 S.Ct. at 1677.

In Santa Clara Pueblo, the Supreme Court determined the susceptibility of a Native American tribe to suit by one of its own members. Three years after its decision in Santa Clara Pueblo, the Supreme Court was called upon to delimit tribal jurisdiction over non-members. In Montana v. United States, 450 U.S. 544, 565-566, 101 S.Ct. 1245, 1258, 67 L.Ed.2d 493 (1981), the Court issued the following criteria for exercise of such jurisdiction:

To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands. A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements. Williams v. Lee, [358 U.S. 217,] 223 [, 79 S.Ct. 269, 272, 3 L.Ed.2d 251 (1959)]; Morris v. Hitchcock, 194 U.S. 384, 24 S.Ct. 712, 48 L.Ed. 1030[ (1904)]; Buster v. Wright, 135 F. 947, 950 (CA8[ 1905]); see Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 152-154, 100 S.Ct. 2069, 2080-2082, 65 L.Ed.2d 10 [(1980)]. A tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. See Fisher v. District Court, 424 U.S. 382, 386, 96 S.Ct. 943, 946, 47 L.Ed.2d 106 [(1976)]; Williams v. Lee, supra, at 220, 79 S.Ct., at 270; Montana Catholic Missions v. Missoula County, 200 U.S. 118, 128-129, 26 S.Ct. 197, 200-201, 50 L.Ed. 398 [(1906)]; Thomas v. Gay, 169 U.S. 264, 273, 18 S.Ct. 340, 343, 42 L.Ed. 740 [(1898)].

The Supreme Court elaborated upon the Montana decision in Strate v. A-1 Contractors, 520 U.S. 438, 446, 117 S.Ct. 1404, 1409-1410, 137 L.Ed.2d 661 (1997). Justice Ginsburg, writing for the Court, explained that:

Montana thus described a general rule that, absent a different congressional direction, Indian tribes lack civil authority over the conduct of nonmembers on non-Indian land within a reservation, subject to two exceptions: The first exception relates to nonmembers who enter consensual relationships with the tribe or its members; the second concerns activity that directly affects the tribe’s political integrity, economic security, health, or welfare.

Justice Ginsburg added that the scope of “consensual relationships” that would subject a non-member to tribal jurisdiction included “ ‘commercial dealing, contracts, leases, or other arrangements.’ [Montana,] 450 U.S. at 565[, 101 S.Ct. 1245]....” Strate, 520 U.S. at 456-457, 117 S.Ct. at 1415.

The doctrine of tribal sovereign immunity has not been without its detractors. The essence of the opposition to the doctrine was distilled by the Supreme Court in Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U.S. 751, 757-60, 118 S.Ct. 1700, 1704-1705, 140 L.Ed.2d 981 (1998), as follows:

The doctrine of tribal immunity came under attack a few years ago in [Oklahoma Tax Comm’n v. Citizen Band] Potawatomi [Indian Tribe of Okla., 498 U.S. 505, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991)]. The petitioner there asked us to abandon or at least narrow the doctrine because tribal businesses had become far removed from tribal self-governance and internal affairs. We retained the doctrine, however, on the theory that Congress had failed to abrogate it in order to promote economic development and self-sufficiency. Id., at 510, 111 S.Ct., at 909-910. The rationale, it must be said, can be challenged as inap-posite to modern, wide-ranging tribal enterprises extending well beyond traditional tribal customs and activities....
There are reasons to doubt the wisdom of perpetuating the doctrine. At one time, the doctrine of tribal immunity from suit might have been thought necessary to protect nascent tribal governments from encroachments by States. In our interdependent and mobile society, |flhowever, tribal immunity extends beyond what is needed to safeguard tribal self-governance. This is evident when tribes take part in the Nation’s commerce. Tribal enterprises now include ski resorts, gambling, and sales of cigarettes to non-Indians. See Mescalero Apache Tribe v. Jones, 411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 14[114] (1973); Potawatomi, supra; Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). In this economic context, immunity can harm those who are unaware that they are dealing with a tribe, who do not know of tribal immunity, or who have no choice in the matter, as in the case of tort victims.
These considerations might suggest a need to abrogate tribal immunity, at least as an overarching rule. Respondent does not ask us to repudiate the principle outright, but suggests instead that we confine it to reservations or to noncommercial activities. We decline to draw this distinction in this case, as we defer to the role Congress may wish to exercise in this important judgment.
... The capacity of the Legislative Branch to address the issue by comprehensive legislation counsels some caution by us in this area. Congress “has occasionally authorized limited classes of suits against Indian tribes” and “has always been at liberty to dispense with such tribal immunity or to limit it.” Potawatomi, [498 U.S.] at 510, 111 S.Ct., at 910. It has not yet done so.
In light of these concerns, we decline to revisit our case law and choose to defer to Congress.

Our research reveals no federal legislation negating the above-explained doctrine of tribal sovereign immunity.

Until its holding in National Farmers Union Insurance Cos. v. Crow Tribe of Indians, 471 U.S. 845, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985), the Supreme Court had advanced only one way in which a suit brought against a Native American tribe in district court might be dismissed — sovereign immunity. However, in National Farmers Union, the Court announced a second means by which a suit against a tribe might be dismissed: the notion of exhaustion of tribal remedies. In National Farmers Union, a member of the Crow Indian Tribe brought suit against the Lodge Grass School District No. 27, a subdivision of the State of Montana, in tribal court and was awarded a judgment. The school district and its insurer, National Farmers Union, brought a suit to enjoin | inthe enforcement of the tribal court’s judgment against it in federal district court under 28 U.S.C. § 1331, claiming that tribal court had no jurisdiction over the school district and its insurer, both of whom were non-Indians. Justice Stevens, writing for the Court, commented that: “Until petitioners [i.e., the school district and its insurer] have exhausted the remedies available to them in the Tribal Court system ... it would be premature for the federal court to consider any relief.” National Farmers Union, 471 U.S. at 857, 105 S.Ct. at 2454.

In Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987), the Supreme Court took under advisement a matter in which the Ninth Circuit affirmed a district court’s decision to dismiss a suit against a tribe for lack of subject matter jurisdiction. In its opinion, the Court indicated that the notion of exhaustion of tribal remedies was not a function of jurisdiction but rather was a function of comity, similar to the abstention doctrine of Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976):

As the Court’s directions on remand in National Farmers Union indicate, the exhaustion rule enunciated in National Farmers Union did not deprive the federal courts of subject-matter jurisdiction. Exhaustion is required as a matter of comity, not as a jurisdictional prerequisite. In this respect, the rule is analogous to principles of abstention articulated in Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976): even where there is concurrent jurisdiction in both the state and federal courts, deference to state proceedings renders it appropriate for the federal courts to decline jurisdiction in certain circumstances. In Colorado River, as here, strong federal policy concerns favored resolution in the nonfederal forum. See id., at 819, 96 S.Ct. at 1247.

Iowa Mutual Ins. Co., 480 U.S. at 16 n. 8, 107 S.Ct. at 976. In accordance with the newly clarified doctrine of the exhaustion of remedies, the Court determined that the district court and the Ninth Circuit erred in dismissing the suit for lack of subject matter jurisdiction. The Court further held that the district court was required to In determine whether a stay of its proceedings was necessary while tribal-court proceedings were pending or whether the suit should be dismissed pursuant to the notion of comity — viz., the prudential rule enunciated in National Farmers Union. However, the Court instructed, “If state-court jurisdiction over Indians or activities on Indian lands would interfere with tribal sovereignty and self-government, the state courts are generally divested of jurisdiction as a matter of federal law.” Iowa Mutual, 480 U.S. at 15, 107 S.Ct. at 976. In sum, recalling principles set forth in Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 102 S.Ct. 894, 71 L.Ed.2d 21 (1982), and Santa Clara Pueblo, the Iowa Mutual Court stated that: “Civil jurisdiction over [the activities of non-Indians on reservation lands] presumptively lies in the tribal courts unless affirmatively limited by a specific treaty provision or federal statute.” Id. at 18, 107 S.Ct. at 977.

The confusion that resulted from attempts to correctly apply the exhaustion doctrine was addressed nearly ten years after Iowa Mutual, in Strate, 520 U.S. 438, 117 S.Ct. 1404, 137 L.Ed.2d 661. Again, Justice Ginsburg, writing for the Court, explained the doctrine’s application vis-a-vis the Court’s prior decision in Montana:

The Court’s recognition in National Farmers that tribal courts have more extensive jurisdiction in civil cases than in criminal proceedings, and of the need to. inspect relevant statutes, treaties, and other materials, does not limit Montana’s instruction. As the Court made plain in Montana, the general rule and exceptions there announced govern only in the absence of a delegation of tribal authority by treaty or statute.... In sum, we do not extract from National Farmers anything more than a prudential exhaustion rule, in deference to the capacity of tribal courts “to explain to the parties the precise basis for accepting [or rejecting] jurisdiction.” 471 U.S., 105 S.Ct., at 2454, 857.

Strate, 520 U.S. at 449-450, 117 S.Ct. at 1411. Justice Ginsburg further clarified the interaction of National Farmers Union, Iowa Mutual, and Montana, stating that:

National Farmers and Iowa Mutual, we conclude, are not at odds with, and do not displace, Montana. Both decisions describe an exhaustion rule allowing tribal courts initially to respond to an invocation of their jurisdiction; neither establishes tribal-court adjudicatory authority, even over the lawsuits involved in those cases. Accord, Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U.S. 408, 427, n. 10, 109 S.Ct. 2994, 3006, n. 10, 106 L.Ed.2d 343 (1989) (opinion of White, J.).

Strate, 520 U.S. at 448, 117 S.Ct. at 1410.

Our review of the jurisprudence of the United States Fifth Circuit reveals that it has not considered a case in which the relevance of the exhaustion doctrine was questionable, such as in the present case, owing to the fact that no proceedings were ongoing in tribal court when suit was filed in district court. However, in Garcia v. Akwesasne Housing Authority, 268 F.3d 76, 81-82 (2d Cir.2001), the Second Circuit, faced with a situation comparable to the instant matter, offered the following analysis:

The Supreme Court recently explained: “Exhaustion was appropriate in [both National Farmers and LaPlante] [sic] because ‘Congress is committed to a policy of supporting tribal self-government ... [which] favors a rule that will provide the forum whose jurisdiction is being challenged the first opportunity to evaluate the factual and legal bases for the challenge.’ ” El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 484, 119 S.Ct. 1430, 143 L.Ed.2d 635 (1999) (quoting National Farmers, 471 U.S. at 856, 105 S.Ct. 2447[, 85 L.Ed.2d 818 (1985)]) (emphasis added). We have expressed the “general principle” as follows: “Parties who challenge, under federal law, the jurisdiction of a tribal court to entertain a cause of action must first present their claim to the tribal court before seeking to defeat tribal jurisdiction in any collateral or'parallel federal court proceeding.” Basil Cook Enters. [v. St. Regis Mohawk Tribe], 117 F.3d [61] at 65 [(2d Cir.1997)].
These cases bar interference by federal courts to defeat or circumvent the ongoing exercise of jurisdiction by tribal courts; [the plaintiffs] claims, however, are pending nowhere but in the Northern District of New York. Other circuits have required abstention even where no proceeding was pending in tribal court. See Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Hous. Auth., 207 F.3d 21, 31 (1st Cir.2000) (“Where applicable, this prudential doctrine has force whether or not an action actually is pending in a tribal court.”); United States v. Tsosie, 92 F.3d 1037, 1041 (10th Cir.1996) (“The exhaustion rule does not require an action to be pending in a tribal court.”); Crawford v. Genuine Parts Co., 947 F.2d 1405, 1407 (9th Cir.1991) (same); see generally Blake A. Watson, The Curious Case of Disappearing Federal Jurisdiction over Federal Enforcement of Federal Law: A Vehicle for Reassessment of the Tribal Exhaustion Abstention Doctrine, 80 Marq. L.Rev. 531, 579-80 (1997). These courts impose the exhaustion rule in any action over which a tribal court might have had “concurrent jurisdiction” if the plaintiff had chosen the tribal forum. Tsosie, 92 F.3d at 1042; see also Crawford, 947 F.2d at 1407; Ninigret Dev. Corp., 207 F.3d at 31.

In Garcia, the Second Circuit found that because the plaintiffs claims were based on federal law — -the Age Discrimination in Employment Act — instead of tribal law, abstention was not warranted due to the federal courts’ “virtually unflagging obligation ... to exercise [their] jurisdiction.” Garcia, 268 F.3d at 82 (citing Colorado River Water Conservation Dist., 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976)). At the district-court level, the Tribe’s motion to dismiss for lack of subject matter jurisdiction had been granted. The Second Circuit upheld the trial court’s determination, not on exhaustion principles, but based on a finding that the Tribe had not waived its sovereign immunity.

We turn now to the interpretations that Louisiana courts have given to the federally developed concepts of sovereign immunity and exhaustion of tribal remedies. The courts of this State have not had many occasions on which to examine the intersection of state and tribal jurisdiction. In Barbry v. Dauzat, 576 So.2d 1013 (La.App. 3 Cir.), writ denied, 578 So.2d 136 (La.1991), the appeal focused on the propriety of the trial court’s determination that the State had jurisdiction over a certain child custody case pursuant to the terms of the Indian Child Welfare Act (“ICWA”). The trial court recognized that the tribal courts had jurisdiction in some instances; however, the applicable federal statute clearly excluded from tribal jurisdiction those matters in which child custody had been granted in a divorce proceeding, as was the situation on appeal. A panel of this court upheld the district 114court’s determination, citing the language of the ICWA, 25 U.S.C. § 1903(1), which expressly withholds jurisdiction from the tribal courts for purposes of child custody where placement was made in a divorce proceeding in state court pursuant to 25 U.S.C. § 1911(a).

The circumstances surrounding the appeal in the matter of Bonnette v. Tunica-Biloxi Indians, 02-919, c/w 02-920, 02-921 (La.App. 3 Cir. 5/28/03), - So.2d -, 2003 WL 21229282, were very similar to those of the instant appeal before this court. In Bonnette, employees of the Tu-nica-Biloxi Tribe brought suit against their employer, asserting that the Tribal-State compact regarding Class III gaming activities included a waiver of sovereign immunity. The Tribe filed an exception of lack of subject matter jurisdiction, which the trial court granted. On appeal, a panel of this court reviewed the United States Supreme Court’s decisions regarding sovereign immunity, pointing out that, according to C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Okla., 532 U.S. 411, 121 S.Ct. 1589, 149 L.Ed.2d 623 (2001), sovereign immunity must be expressly waived; moreover, pursuant to Nevada v. Hicks, 533 U.S. 353, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001), a tribe “may still exercise civil jurisdiction over nonmembers who maintain consensual relationships with the tribe or its members or when it is necessary to protect tribal self-government or to control internal relations.” Bonnette, - So.2d at -. After examining the compact at issue, the reviewing panel of this court determined that the trial court did not err in granting the Tribe’s exception of lack of subject matter jurisdiction because the Tribe had not waived its sovereign immunity via the compact. The companion cases to Bonnette, Dunn v. Tunica-Biloxi Indians, 02-920 (La.App. 3 Cir. 5/28/03), - So.2d -, 2003 WL 21229472, and Jeansonne v. New Horizon Kids Quest, Inc., 02-921 (La.App.5/28/03), - So.2d -, 2003 WL 21229488, were procedurally identical toj^Bonnette and were decided by the same panel of.-this court. The trial court’s decision in Dunn and in Jean-sonne to grant an exception of lack of subject matter jurisdiction was affirmed “[f]or the reasons expressed in Bonnette .... ” Dunn, - So.2d -; Jeansonne, - So.2d -. But see Wyble v. Tunica Biloxi Gaming Econ. Dev., 00-534 (La.App. 3 Cir. 11/2/00), 776 So.2d 501 (employee sued employer-Tribe in Louisiana workers’ compensation court; Tribe raised no objections as to the court’s subject matter jurisdiction).

In the present appeal, Ms. Ortego has cited several provisions of the compact between the State of Louisiana and the Tuni-ca-Biloxi Tribe in support of her contention that the workers’ compensation judge erred as a matter of law in granting the Tribe’s exception of lack of subject matter jurisdiction because the State of Louisiana retained jurisdiction over workers’ compensation proceedings involving tribal employees.

Our examination of the compact reveals that the Tribe did not waive its sovereign immunity with respect to its employees’ workers’ compensation claims. Contrary to Ms. Ortego’s first argument on appeal, the compact’s silence on this issue does not mean that Louisiana law applies. As the Supreme Court noted in Santa Clara Pueblo, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106, tribal sovereign immunity cannot be inferred' — instead, it must be expressly waived. The compact’s silence with respect to tribal employees’ workers’ compensation claims does not constitute an express waiver. The Tribe retains jurisdiction in this area through operation of the doctrine of tribal sovereign immunity.

Ms. Ortego’s second argument is that §§ 3(B) and (C) of the compact evince the intent that the State retain jurisdiction over workers’ compensation claims. Our reading of these sections is at odds with Ms. Ortego’s proposal. Section 3(C) merely indicates that the State retains jurisdiction in those matters in which it previously exercised jurisdiction. Section 3(C) also states that the Tribe retains its jurisdiction, which, applying the principles outlined in Montana and Strate, above, includes jurisdiction over workers’ compensation claims.

In her third argument, Ms. Ortego points to those sections of the compact requiring the Tribe to carry workers’ compensation insurance that, by its terms, precludes the Tribe from asserting the defense of sovereign immunity in defense of liability. Ms. Ortego argues, in an extrapolation of these sections, that the Tribe does not have sovereign immunity over workers’ compensation claims. Based upon our reading of the compact, these provisions do not imply that the defense of sovereign immunity is not available to the Tribe in case of litigation; instead, it indicates that the Tribe may not assert sovereign liability in an attempt to avoid paying on the policy. Moreover, the newly approved tribal ordinance at issue herein mandates that tribal courts apply Louisiana workers’ compensation law in deciding workers’ compensation disputes; as such, the Tribe, just as any other employer, would rely upon its workers’ compensation insurance in payment of claims in appropriate cases.

Ms. Ortego further contends that § 2(H) of the compact, reproduced in footnote 4, clearly indicates that the State did not transfer its workers’ compensation jurisdiction to the Tribe. We note that this section pertains to enforcement of the provisions of the compact itself — i.e., in the event that the State sued the Tribe to enforce the compact, the Tribe could not assert the defense of sovereign immunity, and vice versa. Nothing in § 2(H) indicates that the State or the Tribe waived their respective immunity as to matters other than enforcement of the compact terms.

117In her fifth argument on appeal, Ms. Ortego contends that the Tribe was given jurisdiction over tort claims in § 10(A)(6) of the compact and that a similar grant of workers’ compensation jurisdiction to the Tribe would have been express, as well. Jurisdiction over workers’ compensation was not the State’s to give away. According to the above-cited Supreme Court decisions, the Tribe, not the State, has civil jurisdiction over disputes arising from its consensual relationships with others, even non-members, by virtue of its sovereign status. The Court has also stated that the Tribe would be subject to suit in federal and state courts via an express waiver of the immunity that stems from its sovereign status. No such waiver was given in the instant matter on appeal; as such, the Tribe retained its workers’ compensation jurisdiction.

Finally, Ms. Ortego contends that the ordinance declaring the Tribe’s intention to exercise sole jurisdiction over workers’ compensation claims could not have amended the compact between the Tribe and the State because it was neither signed by the proper dignitaries nor approved by the Secretary of the Interior. We agree with Ms. Ortego’s assertion that the ordinance at issue did not change the terms of the compact. However, in this situation, it was not necessary for the ordinance to do so. The Tribe already has jurisdiction over workers’ compensation claims owing to its status as a sovereign recognized by the United States, not as a result of this compact. |1R The ordinance merely reaffirms the Tribe’s jurisdiction over such matters and mandates that the tribal courts will apply Louisiana workers’ compensation law in deciding disputes in this area. Ms. Ortego will therefore receive the benefit of Louisiana workers’ compensation law whether her case proceeds in Louisiana courts or in the tribal courts of the Tunica-Biloxi Nation.

Based upon the above considerations, we do not find that the workers’ compensation judge erred as a matter of law in granting the Tribe’s exception of lack of subject matter jurisdiction. However, because the Tribe did not assert only one principle in support of its claim that the workers’ compensation court lacked subject matter jurisdiction over Ms. Ortego’s claim, it is necessary to emphasize the precise reasoning employed in reaching this conclusion, for the sake of clarity.

The Tribe asserted in its exception of lack of subject matter jurisdiction, and it now asserts on appeal, that Louisiana does not have jurisdiction over Ms. Ortego’s workers’ compensation claim for two reasons: first, due to the doctrine of exhaustion of tribal remedies, and second, due to tribal sovereign immunity.

We note that Ms. Ortego’s claim is grounded in Louisiana workers’ compensation law and not in tribal law. We further note that Ms. Ortego initially filed suit with the Louisiana Office of Workers’ Compensation, not in a Tunica-Biloxi tribal court. As such, we find that the circumstances of Ms. Ortego’s case do not lend themselves to an unbending application of the doctrine of exhaustion of tribal remedies as propounded by the Supreme Court in National Farmers Union and Iowa Mutual, where claims were pending in tribal court before suit was filed in federal court. Instead, the reasoning of the Second Circuit in Garcia, reproduced above, is appropriate in the matter before us on appeal. We determine that this case should not [19have been dismissed as a matter of comity, but rather due to the asserted defense of tribal sovereign immunity.

In Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 145, 102 S.Ct. 894, 905, 71 L.Ed.2d 21 (1982), Justice Marshall, writing for the Court, observed that “[a] nonmember who enters the jurisdiction of the tribe remains subject to the risk that the tribe will later exercise its sovereign power.” In the instant matter on appeal, Ms. Ortego entered the jurisdiction of the Tribe, and the Tribe was free to exert its sovereign immunity with respect to claims sustained by Ms. Ortego, a non-member, while on tribal land.

The record indicates that Ms. Ortego entered into a consensual relationship of employment with the Tunica-Biloxi Tribe, a relationship that was governed, in part, by the compact between the State of Louisiana and the Tribe concerning Class III gaming. Through this consensual relationship, Ms. Ortego submitted herself to the civil jurisdiction of the Tribe, despite her status as a non-member. See Montana, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493; Strate, 520 U.S. 438, 117 S.Ct. 1404, 137 L.Ed.2d 661. In light of our determination that the Tribe has not waived its sovereign immunity to suit and that the Tribe retained its civil jurisdiction over workers’ compensation claims brought as a result of tribal activities, we find that Ms. Ortego’s assignment of error on appeal is without merit.

DECREE

For the foregoing reasons, the ruling granting the defendant’s exception of lack of subject matter jurisdiction and dismissing the plaintiffs claims is affirmed. All costs of this proceeding are assigned to the plaintiff-appellant, Kathryn Ortego.

AFFIRMED.

      . Section 3(B) of the compact states as follows:
      The Tunica-Biloxi Indian Tribe of Louisiana and the State of Louisiana shall retain all sovereignty and immunity to suit while discussing, negotiating, or confecting this Tribal-State Compact. The Tunica-Biloxi Indian Tribe of Louisiana and the State of Louisiana intend and agree that all issues purely of Tribal law are to be determined in accordance with the legal mechanisms of the Tunica-Biloxi Indian Tribe of Louisiana, and that all other issues are to be determined in accordance with federal law, where applicable, the provisions of this Tribal State Compact, where applicable, and the laws of the State of Louisiana, where applicable.

      . Section 3(C) of the compact provides as follows: '
      In the interest of clarity of authority, and to preserve and to protect the health, safety, and welfare of all, the Tunica-Biloxi Indian Tribe of Louisiana and the State of Louisiana shall:
      (1) Apply all federal laws applicable to Indian gaming, lands, or subject matter as being fully operative and applicable within all Tribal lands and areas of gaming activity.
      (2) Preserve the full territorial and subject matter jurisdiction of the Tunica-Biloxi Indian Tribe of Louisiana.
      (3) Preserve the full territorial and subject matter jurisdiction of the State of Louisiana.
      (4) Accord the State of Louisiana concurrent criminal jurisdiction and concurrent law enforcement authority within the lands of the Tunica-Biloxi Indian Tribe of Louisiana and the State of Louisiana, when exercising any subject matter jurisdiction accorded the State of Louisiana pursuant to this Tribal-State Compact.
      (5)Accord the Tunica-Biloxi Indian Tribe of Louisiana, including its duly constituted Tribal law enforcement authorities, full territorial jurisdiction, as well as concurrent law enforcement authority within the lands of the Tunica-Biloxi Indian Tribe of Louisiana and within any Parishes where they have been duly commissioned by a local law enforcement agency, when exercising any subject matter jurisdiction accorded the Tuni-ca-Biloxi Indian Tribe of Louisiana pursuant to this Tribal-State Compact, or when exercising the authority accorded to the Tunica-Biloxi Indian Tribe of Louisiana pursuant to any agreements made with a local law enforcement agency.

      .Section § 10(A)(4), subsections (a), (c), and (d) of the compact state as follows:
      (A) All Class III gaming shall be conducting [sic] in such a manner that ensures, to the maximum extent practicable, that it is secure, honest, and that the interests of the Tunica-Biloxi Indian Tribe of Louisiana, the State of Louisiana, and the public are protected at all times. The State of Louisiana shall fully cooperate with and assist the Tunica-Biloxi Indian Tribe of Louisiana in meeting its obligations in this regard.

      (4) (a) The Tunica-Biloxi Indian Tribe of Louisiana shall maintain comprehensive general liability and workers' compensation insurance coverage from any admitted or authorized insurer subject to direct action under Louisiana law. Such policies shall maintain ample liability and property loss coverage to protect against any foreseeable loss or risk. Such insurance policies shall not be on an claims-made basis. The coverage for such loss or risk shall be the greater of $4,000,000 or twice the insurable risk of the insured.

      (c) The gaming management company and all other entities contracting with the Tunica-Biloxi Indian Tribe of Louisiana shall maintain such policies of comprehensive general liability and workers' compensation insurance as required by State law, and shall maintain proof of such continuous coverage.
      (d) Each such policy of insurance, shall contain, or be deemed to contain, an exclusion that the insurer or the insured shall not be entitled to make any claim of sovereign immunity in defense of liability, but shall be liable, including court costs and attorneys' fees incurred by the State of Louisiana, for its insured, as though the insured were a Louisiana domiciliary, as well as a provision requiring immediate notice to the State of Louisiana and the Tunica-Biloxi Indian Tribe of Louisiana of any change in coverage or default or delay in payment of premium or other occurrence which threatens the continuity or amount of coverage.

      .Section 2(H) of the compact states as follows:
      The jurisdiction and, waiver of sovereign immunity provided by this Tribal-State Compact shall be strictly limited to matters and issues arising directly from this Tribal-State Compact.

      . Section 10(A)(6) of the compact states as follows:
      The Tunica-Biloxi Indian Tribe of Louisiana shall maintain reasonable procedures for the disposition of tort claims arising from alleged injuries to patrons of its gaming facilities and operation. The Tunica-Biloxi Indian Tribe of Louisiana shall not be deemed to have waived its sovereign immunity from suit with respect to such claims by virtue of any provision of this Tribal-State Compact, but may adopt a remedial system analogous to that available for similar claims arising against the State of Louisiana.

      . Section 2 of the compact states, in pertinent part, as follows:
      (I)Relative to the conduct of Class III gaming, this Tribal-State Compact constitutes the entire agreement between the Tunica-Biloxi Indian Tribe of Louisiana and the State of Louisiana, and supersedes all prior written and oral agreements. This Tribal-State Compact may be amended only through a written instrument that is signed by the Tribal Chairman of the Tunica-Biloxi Indian Tribe of Louisiana and by the Governor of the State of Louisiana, and that is approved by the Secretary of the Interior of the United States of America.

      . The text of the Tribal Ordinance, entitled "An Ordinance to Adopt Title 23, Chapter 10 of the Louisiana Revised Statutes Concerning Workers’ Compensation," is as follows:
      All of Title 23, Chapter 10 of the Louisiana Revised Statutes, shall be adopted as the law applicable to any workers’ compensation claims that arise in the jurisdiction of the Tunica-Biloxi Tribal Court. All of Part IV, "Administration of Claims”, including, but not limited to Subpart A, "Office of Workers’ Compensation Administration” and Subpart B, "Claim Resolution” and all of their subsections, shall be amended so that any reference to administration by a Hearing Officer and/or the Workers’ Compensation Administration, shall be deleted. The Administration of Workers' Compensation Act shall be by the Tunica-Biloxi Tribal Court.


author: hAMY, Judge.

text:
    Kathy TUCKER v. SECURITY INDUSTRIAL INSURANCE.
    No. 03-1011.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2004.

      H. Douglas Hunter, Guglielmo, Lopez, Tuttle, Hunter & Jarrell, L.L.P., Opelou-sas, LA, for Defendant/Appellant, Security Industrial Insurance.

      Erin M. Alley, Baggett, McCall, Burgess, Watson & Gaughan, Lake Charles, LA, for Plaintiff/Appellee, Kathy Tucker.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   hAMY, Judge.

In this workers’ compensation matter, the employee filed a disputed claim, contesting the termination of her medical benefits. The workers’ compensation judge determined that the employee-claimant did not meet the burden of proof of entitlement to such benefits. The written reasons for judgment submitted in the matter were not in conformity with the oral reasons as stated by the workers’ compensation judge, and the employee-claimant moved for a new trial in order that the written judgment might be amended. The motion was granted, and the workers’ compensation judge’s new written ruling stated that the employee-claimant had sustained a work-related injury and was entitled to medical benefits but was not entitled to disability benefits. The employer filed the instant appeal. For the following reasons, we affirm.

Factual and Procedural Background

Kathy Tucker, the claimant herein, was employed as a debit agent by Security Industrial Insurance. One of a debit agent’s duties, among other things, was to collect premiums from clients, which would often take place at clients’ homes in the evenings. On or around August 25, 1998, Ms. Tucker was collecting a premium payment at the home of a client who owned what was described as a very mean, territorial poodle. The record reflects that the client knew that Ms. Tucker was afraid of the dog; as such, it was not allowed to come into the house while Ms. Tucker was there. Upon the conclusion of business on this particular occasion, the client heard a door close. According to her testimony at the disputed-claim hearing in the matter, the client was under the impression that Ms. Tucker had gone, so she let the dog into the house. However, Ms. Tucker testified that she had not yet left the house and that it was actually the client’s husband who had closed a door. Ms. Tucker recalled that | ¡>she became extremely frightened when she realized that the dog was indoors. She testified that she turned and ran for her car, twisting something in the process. She noted that upon sitting in the driver’s seat, she experienced a burning, stabbing pain in her back and buttocks.

Two weeks later, on September 8, 1998, Ms. Tucker visited her family physician, complaining of back pain. On September 12 or 13, 1998, Ms. Tucker first mentioned the incident to a secretary in Security Industrial’s office and then to her supervisor, who instructed her to file a report with the district manager. The secretary testified at the disputed-claim hearing that company policy required that all accident reports were to be filed with the district manager immediately after the accident. Ms. Tucker reported the injury accordingly and ceased working for Security Industrial shortly thereafter. In April 1999, Ms. Tucker underwent back surgery, and in May 2002, surgery was performed on her neck.

Meanwhile, in November 2000, Ms. Tucker and her brother opened Pocket Money, a payday-loan business in Lake Charles. Ms. Tucker testified at the disputed-claim hearing that she did not manage or work in the business; although she would frequently remain at the store during operating hours at first, she would only write checks and pay the bills. Because of the severity of Ms. Tucker’s persistent back pain and discomfort, her father brought a reeliner for her to use while she was at the store, and Ms. Tucker testified that she spent most of her time sitting in the reeliner, visiting with her employees.

Security Industrial paid Ms. Tucker’s workers’ compensation benefits from the time her injury was reported until February 1, 2001. The record indicates that the claims adjuster assigned to Ms. Tucker’s case learned of Pocket Money’s existence, J^and she initiated surveillance of Ms. Tucker’s activities. Video surveillance tapes made on four consecutive days in January 2001 showed Ms. Tucker unlocking Pocket Money’s doors in the morning and locking them at night. The claims adjuster testified at the disputed-elaim hearing that, in her opinion, the content of the tapes indicated that Ms. Tucker was able to work and that she had engaged in fraud for the purpose of obtaining workers’ compensation benefits, a violation of La. R.S. 23:1208, noting that she had not reported any earnings for January 2001. The claims adjuster terminated Ms. Tucker’s benefits accordingly.

Ms. Tucker filed a disputed claim against Security Industrial on March 6, 2001, contending that her benefits had been wrongfully terminated and that her recommended pain-management treatment had not been authorized. Security Industrial answered, arguing that Ms. Tucker did not sustain a work-related accident and that even if she had, she forfeited her right to such benefits when she did not claim income from working at Pocket Money and when she settled a third-party action without Security Industrial’s written consent.

The matter proceeded to hearing on October 14, 2002. In her oral reasons for ruling, the workers’ compensation judge concluded that the evidence presented was equally balanced in favor of both the claimant and the employer, and, consequently, Ms. Tucker did not meet the requisite burden of proving that her benefits were arbitrarily discontinued or that she was entitled to temporary or permanent disability benefits. The workers’ compensation judge further noted that, although Ms. Tucker was present at Pocket Money, her actions did not rise to the level of fraud that would warrant termination of benefits pursuant to La.R.S. 23:1208. However, the record reflects that the written ruling submitted by the employer and signed by the workers’ | ¿compensation judge on October 18, 2002, was not in conformity with the oral reasons issued in the matter. Instead, the written ruling states, inter alia, that Ms. Tucker did not prove that she sustained a work-related accident and, therefore, was not entitled to benefits.

Ms. Tucker filed a motion for new trial, seeking an amendment of the workers’ compensation judge’s written ruling to accurately reflect the rationale stated in the oral reasons. In this motion, Ms. Tucker noted that the workers’ compensation judge had not ruled that she did not suffer a work-related accident, as stated in the written ruling. The motion for new trial was granted on February 20, 2003. The workers’ compensation judge issued new written reasons for judgment on April 3, 2003, which stated that Ms. Tucker had suffered a work-related accident but was not entitled to disability benefits.

The employer appeals, asserting that the workers’ compensation judge erred in granting the employee’s motion for new trial and in finding that the employee sustained a work-related accident.

Discussion

Security Industrial’s argument on appeal is best addressed as two separate parts: first, that the workers’ compensation judge abused her discretion in granting Ms. Tucker’s motion for new trial; and second, that the workers’ compensation judge erred in determining that Ms. Tucker sustained a work-related accident. Accordingly, we examine these arguments in turn.

Motion for New Trial

Security Industrial contends on appeal that the workers’ compensation judge abused her discretion in granting Ms. Tucker’s motion for a new trial. It argues that |Kthe record supports the original judgment issued in this matter — namely, that Ms. Tucker failed to prove by a preponderance of the evidence that an at-work accident occurred.

If a written judgment does not conform to the oral reasons issued by a judge, there are three ways by which the error may be remedied: first, by a timely application for a new trial; second, by a petition for nullity; and third, by a timely appeal. Francis v. Lafon Nursing Home of the Holy Family, 02-1863 (La.App. 4 Cir. 3/19/03), 840 So.2d 1281, writ denied, 03-1373 (La.9/19/03), 853 So.2d 643. In light of the vast discretion afforded trial courts in determining whether to grant a party’s motion for new trial, appellate courts, in reviewing such determinations, will not disturb the trial court’s actions absent an abuse of discretion. Davis v. Wal-Mart Stores, Inc., 00-0445 (La.11/28/00), 774 So.2d 84.

Upon examining the record, we find that the workers’ compensation judge did not manifestly abuse her discretion in granting Ms. Tucker’s motion for a new trial. The record indicates that the workers’ compensation judge did not find that Ms. Tucker was not entitled to benefits due to the lack of proof of a work-related accident. Instead, the workers’ compensation judge determined that Ms. Tucker did not prove those claims listed on her pre-trial statement, namely that her benefits were arbitrarily terminated and that she was entitled to disability benefits. The record likewise reflects that the written reasons for ruling submitted by Security Industrial and signed by the workers’ compensation judge stated that Ms. Tucker did not sustain a work-related accident. This portion of the written reasons did not accurately reflect the workers’ compensation judge’s findings in the matter. Ms. Tucker properly sought Uto amend the ruling via a motion for new trial, which the workers’ compensation judge properly granted for this purpose. This assignment lacks merit.

Workr-Related Accident

Security Industrial further argues on appeal that the more than two-week delay between the date of the alleged accident and the date when Ms. Tucker reported it to her district manager supports its contention that she did not sustain an on-the-job accident. In fact, Security Industrial asserts, this was an unwitnessed accident, and Ms. Tucker’s claims were inconsistent with other witnesses’ testimony regarding the alleged injury. Security Industrial points out that Ms. Tucker did not seek medical treatment until two weeks after the accident and that the workers’ compensation judge found her testimony less than credible. In sum, it argues that the workers’ compensation judge erred in determining that a work-related accident occurred.

Louisiana Revised Statutes 23:1021(1) defines an accident, in the context of workers’ compensation litigation, 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.

In workers’ compensation matters, the employee-claimant has the burden of proving that a work-related accident occurred by a preponderance of the evidence. Darby v. Gilbert Richard, Inc., 02-1154 (La.App. 3 Cir. 2/5/03), 838 So.2d 141. With respect to the applicable evidentiary burden where an on-the-job accident is unwitnessed, a panel of this court noted in Ware v. Allen Parish School Bd., 02-1011, p. 6 (La.App. 3 Cir. 5/21/03), 854 So.2d 374, 378, that:

[ t]he injured employee’s testimony alone may be enough to meet the burden of proof as long as 1) no other evidence contradicts the employee’s version of the accident, and 2) the testimony is corroborated |7by circumstances following the alleged incident. Bruno v. Harbert Int'l, Inc., 593 So.2d 357 (La.1992). If the employee’s testimony contains inconsistencies and discrepancies, then the injured employee’s testimony alone will not be enough to prove his injury occurred on the job. Harris v. General Motors, 577 So.2d 1160 (La.App. 2 Cir.1991).

(quoting Sam v. Asplundh Tree Expert Co., 02-259, p. 2 (La.App. 3 Cir. 10/2/02), 827 So.2d 631, 633-34). Whether a work-related accident has occurred is a factual finding that will not be set aside on appeal in the absence of manifest error. Pauley v. Wal-Mart Stores, Inc., 02-1354 (La.App. 3 Cir. 6/4/03), 847 So.2d 757, writ denied, 03-1884 (La.11/21/03), 860 So.2d 544.

The record establishes that there were no eyewitnesses to the accident and that the client who owned the poodle at the center of this matter was not in a position to witness the accident due to her location in the house. Because the alleged accident herein was unwitnessed, we consult the factors listed in Ware, 854 So.2d 374, above, in our examination of whether the record supports the workers’ compensation judge’s determination that an at-work accident occurred. First, several witnesses who had heard Ms. Tucker’s account of the accident testified at the disputed-claim hearing, and each of these witnesses recalled that Ms. Tucker claimed that her injury resulted from running from a dog. Second, testimony elicited at trial established that Ms. Tucker had entered the client’s transaction in her debit book as having occurred on August 25, 1998, and her co-workers testified that she complained of pain two weeks later. The record indicates that Ms. Tucker also sought medical treatment for her injuries and was referred to orthopedic surgeons and pain-management specialists for treatment. The record also reflects that Security Industrial paid medical benefits for Ms. Tucker shortly after the accident was reported until February 1, 2001, nearly two and one-half years later.

|sThe record also indicates that Ms. Tucker sustained a severe injury. She testified at the disputed claim hearing that she is unable to work and that she cannot sit or stand for extended periods of time due to pain. Moreover, she indicated that as a result of her injury, she experienced lower back pain, leg pain, neck pain, and arm pain, as well as severe headaches. She noted that she had attended pain management therapy until her benefits were discontinued. Ms. Tucker testified that despite these surgeries, and despite the pain medication she takes, she still suffers from headaches, neck pain, back pain, and foot and leg cramps. In fact, Ms. Tucker noted, she was scheduled to undergo two more surgeries after trial. In light of the above considerations, the record reflects that Ms. Tucker’s testimony regarding the accident was not inconsistent and that her testimony alone was sufficient to prove the occurrence of a work-related injury.

Furthermore, in Bruno v. Harbert International, Inc., 593 So.2d 357 (La.1992), the Louisiana Supreme Court addressed the timing of the filing of an accident report and its impact upon an employee’s claim that an at-work injury occurred:

As to plaintiffs delay in filing a formal accident report, we noted in West [v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979)], that a worker’s delay in reporting an injury “is more corroborative of her initial unawareness of the seriousness of the injury ... than it is any cause to doubt her credibility about its occurrence.” West, 371 So.2d at 1150.

Bruno, 593 So.2d at 363. In Bruno, the supreme court commented that the principle outlined in West, 371 So.2d 1146, was “especially true when, as in the instant case, the delay is of a relatively short duration, only two weeks.” Id. With respect to the delay in filing the accident report, we find that the two-and-a-half-week delay between the accident and the filing of the report in the instant matter on appeal does not render suspect Ms. Tucker’s allegations regarding the occurrence of such anj^accident. Ms. Tucker testified at trial that she obtained medical attention of her own volition and paid for it herself. She also testified to the effect that her work schedule and her district manager’s work schedule were at odds, making it difficult for her to get in contact with him. The delay in filing the accident report herein was reasonable and does not indicate that Ms. Tucker did not sustain a work-related accident. This assignment is without merit.

DECREE

For the foregoing reasons, the workers’ compensation judge’s ruling is affirmed. All costs of this proceeding are assigned to the defendant-appellant, Security Industrial.

AFFIRMED.


author: | BLANCHARD, Judge.

text:
    Anthony D. PLAISSANCE, et al. v. Robert L. McDONALD and Harrah’s Lake Charles, LLC.
    No. 03-1043.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2004.

      Todd Michael Ammons, Lake Charles, LA, for Defendant-Appellant, Robert L. McDonald and Harrah’s Lake Charles, LLC.
    Rex Douglas Townsley, Lake Charles, LA, for Plaintiff-Appellee, Anthony D. Plaissance, individually and on behalf of his minor daughter Courtney Plaissance and Lori Plaissance, individually.
    Court composed of BILLIE COLOMBARO WOODARD and ELIZABETH A. PICKETT, Judges and ARTHUR J. PLANCHARD, Judge Pro Tempore.
   | BLANCHARD, Judge.

The Defendants, Robert L. McDonald and Harrah’s Lake Charles, L.L.C. (Har-rah’s), appeal the trial court judgment finding McDonald 90% at fault in this matter arising out of an accident between a casino bus and a private vehicle.

The Plaintiffs, Anthony Plaissance, brought this suit against Harrah’s and McDonald alleging that he sustained injury when a bus owned by Harrah’s and driven by McDonald pulled out in front of him from a private driveway forcing him off the road and causing him to collide with a utility pole and flip over. Plaissance on behalf of his child, and his wife Lori Plais-sance, made claims for loss of consortium. The trial court rendered judgment finding McDonald 90% at fault and Plaissance 10% at fault. As a result, the court awarded Plaissance $44,464.50, as follows:

Anthony Plaissance:
General Damages $34,000.00
Past Medical Bills $ 6,405.00
TOTAL: $40,405.00
Courtney Plaissance:
Loss of Consortium $ 1,500.00
Lori Plaissance:
Loss of Consortium $ 7,500.00
TOTAL DAMAGE AWARD $49,405.00
Less 10% - 4,940.00
TOTAL $44,464.50

Harrah’s and McDonald appeal the trial court’s determination of liability and the quantum of damages, both to Plaissance for his injuries and to his wife for loss of consortium.

PLIABILITY

The Defendants first assert that the trial court erred in assessing McDonald with 90% of the fault. They argue that the evidence shows that McDonald did not pull out in front of Plaissance and that he was not involved in the accident.

Plaissance testified that on the date of the accident at 8:30 p.m. he was going from his apartment on Lake St. in Lake Charles, Louisiana to Harrah’s casino. He stated that it was dark out and that he had had nothing to drink and had taken no drugs, prescription or otherwise. Plais-sance testified that he was driving west in the right lane on N. Lakeshore Dr. at about 45 m.p.h. as he approached the driveway to the casino’s employee parking lot. He saw the casino bus in the driveway as he approached and the bus pulled out turning into the road in front of him. He stated that he hit his brakes and steered sharply to the left. He stated that his car went across the left lane and onto the shoulder and down a steep embankment where it rolled over and came to a stop when it hit a light pole on 1-10. He noted that the bus pulled over but that the driver did not come to help him.

McDonald, the bus driver, testified that as he pulled out of the parking lot he stopped at the edge of the road and looked to the left to see if anything was coming before pulling out. His testimony is unclear as to whether he saw Plaissance’s headlights and as to what lane he thought Plaissance was in, but he testified that he determined that it was safe to pull out and did so. He stated that he looked over his left shoulder and saw a vehicle, which he later found out was driven by Plaissance, going off the road. He testified that he had plenty of time to pull out of the driveway without causing Plaissance to take evasive action. It was McDonald’s testimony that he pulled over and called his supervisor on the radio. He stated that he went back to [3the casino, spoke to his supervisor and went back to the scene to speak to the police.

Two witnesses, Debra Renee Walker and Amanda Wallace Gums, also testified about seeing Plaissance’s vehicle go off the road and flip, but neither saw the bus pull out of the parking lot.

The trial court’s reasons for judgment show that his decision to find that McDonald’s conduct was a cause in fact of the accident was based on a credibility evaluation:

The Court did hear from Mr. Plaisance (sic) and did find him to be very credible in his recitation as to what occurred, as well as an explanation of his injuries, .... His statement indicated that the bus pulled out in front of him and he pulled over to the left to avoid it. In contradiction to that, the other party that is allegedly involved, even though no contact made.... He indicated he looked to the left, as was his regular driving habits, noticed the headlights, felt that he could safely enter the right lane or outside lane, and proceeded to enter that lane, picking up speed when he noticed lights over his left shoulder, and turning and seeing Mr. Plaissance’s vehicle. He eased over to the shoulder to a stop when he realized an accident or incident was occurring. The Court did find Mr. McDonald to be somewhat evasive and defensive with regard to his testimony, and it is noted that he is 73 or 75....

“Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact-finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony.” Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993) (citations omitted).

Finding the trial court’s credibility evaluation to be reasonable based on the record before us, we will not disturb its apportionment of fault to Harrah’s and McDonald.

UQUANTUM OF DAMAGES

The Defendants contend that the trial court abused its discretion by making excessive damage awards for general damages and loss of consortium. They argue that the evidence established that the majority of Plaissance’s injuries were not severe and that they essentially resolved within a few months of the accident. Further they argue that since the Plaintiff and his wife were living apart for reasons of his job at the time of the accident and saw each other only on weekends, the award for loss of consortium was excessive. They also maintain that Plais-sance, by refusing to undergo surgery to release the ulnar nerve, failed to mitigate his damages.

The discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.
Only after an abuse of discretion is disclosed by an articulated analysis of the facts is an examination of prior awards in similar cases proper; an abusively low award is raised to the lowest amount the trier of fact could have reasonably awarded, while an abusively high award is reduced to the highest amount the trier of fact could have reasonably awarded. The proper procedure for examining whether an award is excessive is to determine whether the amount can be supported under the interpretation of the evidence, most favorable to the plaintiff, which reasonably could have been made by the trier of fact.
Before a trial court’s award of damages can be questioned as inadequate or excessive, the reviewing court must look first, not to prior awards, but to the individual circumstances of the instant case. A damage award should not be disturbed by the reviewing court absent a showing of a clear abuse of discretion.
General damages involve mental and physical pain and suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or lifestyle which cannot be measured exactly in monetary terms.
| ^Louisiana law requires that an injured person exercise the diligence and care of a man of ordinary prudence to minimize his damages. The burden rests with the wrongdoer to show that the victim of tortious conduct failed to mitigate damages. The tortfeasor must demonstrate (1) that the injured party’s conduct after the accident was unreasonable and (2) that the unreasonable conduct had the consequence of aggravating the harm.

Hunt v. Long, 33,395, pp. 4-5 (La.App. 2 Cir. 6/21/00), 763 So.2d 811, 815-16, (citations omitted).

The evidence of record shows that, as a result of the accident, Plaissance incurred multiple soft tissue injuries, cuts, bruises and permanent nerve damage. Plais-sance’s testimony shows that, prior to the accident, he had never had any problems with his neck, back, shoulder or arms. There is nothing of record to indicate that Plaissance’s condition has been aggravated by his failure to undergo surgery. Further, the record reflects that Plaissance had informed reasons for wanting to avoid surgery if possible, including worries about infection.

While the award of general damages is high, we cannot say that it is abusively high. Therefore, we will not disturb this award.

“Loss of consortium includes such elements as loss of service, loss of love and affection, loss of society and companionship, loss of sexual relationship, loss of support and loss of felicity or overall contentment and happiness.” Williams v. O’Neill, 99-2575, p. 20 (La.App. 4 Cir. 3/13/02), 813 So.2d 548, 562, citing Coleman v. Deno, 99-2998 (La.App. 4 Cir. 4/25/01), 787 So.2d 446. The testimony at trial showed that while the parties only saw one another on weekends, this was because Plaissance had accepted a job in Lake Charles prior to the end of the school year and that Mrs. Plaissance was waiting to join him after their daughter completed her year at school. Both testified that rather than being able to enjoy their time together as a | (¡family during the short time they were able to be together, Plais-sance’s injuries prevented him from participating in family life, and the couple’s sex life suffered. Both testified that because they had very little time together, the loss of quality of their time together was particularly difficult. Based on this testimony, we find no abuse of discretion in the trial court’s award of damages.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed to the Defendants/Appellants.

AFFIRMED.


author: JjWOODARD, Judge.

text:
    Gilfred LEOPAUL v. ACADIANA GRANITE & MARBLE.
    No. 03-1045.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2004.

      Thomas V. Alonzo, Lafayette, LA, for Plaintiff/Appellee, Gilfred Leopaul.
    H. Douglas Hunter, Guglielmo, Lopez, Tuttle, Hunter & Jarrell, Opelousas, LA, for Defendant/Appellant, Acadiana Granite & Marble.
    Court composed of BILLIE COLOMBARO WOODARD, ELIZABETH A. PICKETT, and ARTHUR J. PLANCHARD, Judges.

       Judge Arthur J. Planchará, Jr., Retired, participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   JjWOODARD, Judge.

Acadiana appeals the WCJ’s determination that Mr. Leopaul did not forfeit his claim to workers’ compensation benefits under La.R.S. 23:1208. We affirm the WCJ’s ruling.

The claimant, Mr. Gilfred Leopaul, was driving a company truck in the course and scope of his employment with Acadiana Granite & Marble (Acadiana) when he was involved in a head-on collision. Initially, he complained of injuries to his entire left side, and his middle and lower back. By the time of trial, his primary complaint concerned, only, his left knee.

The accident occurred on September 19, 2001. Acadiana paid Mr. Leopaul workers’ compensation benefits for injuries he received in the accident from this date until December 12, 2001. It terminated his benefits, after it discovered that he had lied about his medical history in an October 4th telephone conversation with Magdalene Blanchard. Ms. Blanchard is the insurance adjuster for LUBA, Acadiana’s workers’ compensation insurer. Specifically, Mr. Leopaul allegedly told her that he had never had any other on-the-job injuries, and he denied having been in any prior car accidents or having ever sought treatment for his neck or back.

Upon discovering that he had, in fact, sought workers’ compensation benefits for another on-the-job injury and that he had been involved in a prior car accident, Aca-diana terminated his benefits based on La. R.S. 23:1208.

Mr. Leopaul sued Acadiana seeking reinstatement of his benefits. The Workers’ Compensation Judge (WCJ) excluded evidence of Mr. Leopaul’s and Ms. Blanchard’s conversation because his attorney was not a party to it. The WCJ determined that Mr. Leopaul did not make any willful misrepresentations that satisfied La.R.S. 23:1208’s elements and reinstated benefits. Further she ordered Mr. Leo-paul to reimburse Acadiana money he received from the insurer of the third party who was involved in his car accident.

Acadiana appeals, only, the WCJ’s failure to find that Mr. Leopaul forfeited benefits under La.R.S. 23:1208.

| ¡>Thus, we must decide whether the WCJ was clearly wrong in determining that Mr. Leopaul did not willfully make any false misrepresentations in order to obtain benefits.

Standard op Review

Louisiana Revised Statute 23:1208 states, in pertinent 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.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

The WCJ found that any “misrepresentations” in Mr. Leopaul’s testimony were not willful. This finding requires a determination of his credibility; therefore, it is subject to the manifest error standard of review. Furthermore, we recognize that forfeiture of benefits under Section 1208 is a harsh remedy and requires a strict construction.

MISREPRESENTATIONS

Acadiana attempted to impeach Mr. Leopaul with statements he gave in his deposition that he had never received any workers’ compensation benefits before this claim, when the evidence showed that he had received medical benefits before and he had received indemnity benefits, as well, for approximately a month in 1996. Acadiana also points out that Mr. Leopaul failed to disclose his prior injuries to | acertain physicians. Specifically, he denied having prior back injuries on forms inquiring about his medical history for Drs. George and Sweeney, and he failed to disclose that he had prior back pain or knee injuries when Dr. Heard asked him about his past medical history. Mr. Leo-paul, also, represented that he did not miss any work when he injured his left knee in 1993. However, the evidence reveals that his physician excused him from work for a week for this injury.

Additionally, Acadiana refers to certain statements Mr. Leopaul made to Ms. Blanchard. However, the WCJ excluded evidence of this conversation because Ms. Blanchard took the statement without notifying Ms. Leopaul’s attorney. Before making this decision, the WCJ held a hearing and heard testimony. Ms. Blanchard asserted that Mr. Leopaul’s attorney’s office told her that it was representing him for the third party claim, but not for the workers’ compensation claim, unless it became necessary.

The WCJ referred to La.Code Evid. art. 607 and determined that the probative value of the statement was substantially outweighed by unfair prejudice. Acadiana proffered the recorded statement reflecting the conversation. However, it does not present an argument or assign error to the WCJ’s evidentiary ruling.

Willfulness

The WCJ found several legitimate justifications for any inconsistencies in Mr. Leopaul’s testimony. In evaluating the evidence to determine willfulness, it considered Mr. Leopaul’s “limited understanding.” It is undisputed that he cannot read or write and that he is a “slow learner.” He was in special education classes throughout grade school, completing only seven grades. Thus, the trial court found it plausible that he, simply, did not fully comprehend the questions he was asked.

Further, it viewed the evidence in light of Ms. Nedia Credeur’s testimony that he was a good worker and had a good work ethic. Before he started working for Aca-diana, Mr. Leopaul worked for Ms. Cred-eur for twelve years, and, while he had a few minor “work incidents,” the trial court found that he “has never demonstrated a tendency to prolong those injuries or take advantage to any extent.”

We find a reasonable basis in the record for the WCJ’s decision. Mr. Leopaul’s testimony reveals that he does not have any understanding of the workers’ compensation system. For example, he admitted that his previous employer had paid |4the medical expenses associated with his prior work injuries, yet maintained that he had not received workers’ compensation benefits.

Additionally, since he could not write, he relied on his girlfriend to complete forms for him, such as the patient medical history forms. Based on Dr. Heard’s deposition, we cannot say that Mr. Leopaul’s failure to disclose a prior back or knee injury was willful. Specifically, when asked about his medical notes which indicated that Mr. Leopaul had no past medical problems, Dr. Heard said:

Q: Were you ever made aware that this gentleman had, in fact, had prior complaints in the neck, the low back and the left knee?
Dr. Heard: He may have in the distant past. I was only interested in the recent past prior to the injury.

Furthermore, since Mr. Leopaul’s previous knee injury was a relatively minor one, occurring approximately eight years before, it is plausible that he simply did not recall that he had been off of work for a week because of it. Moreover, in his deposition, Dr. Duhon states that he told Mr. Leopaul to stay off of his leg and not to return to work for the next week. At the end of that time, Mr. Leopaul was supposed to return to see Dr. Duhon, but he did not. Dr. Duhon does not say that he knows whether Mr. Leopaul followed his directions. He may have, in fact, returned to work the following day, as he testified.

Moreover, Mr. Leopaul testified that he did not intend to hide anything from the attorney who took his deposition, or to hide any previous injuries from his physicians.

Apparently, the WCJ found that he was a credible witness and believed him. Her finding is entitled to great weight, as the factfinder at trial is in a better position to evaluate truthfulness and credibility. We find no manifest error in the WCJ’s determination.

| .CONCLUSION

Finding no manifest error in the WCJ’s determination, we affirm its ruling that Mr. Leopaul did not forfeit his right to workers’ compensation benefits. We assign the costs of this appeal to Defendants/Appellants.

AFFIRMED.

      . Lavergne v. Lake Charles Mem'l Hosp., 625 So.2d 1098 (La.App. 3 Cir.1993), writ denied, 631 So.2d 451 (La.1/7/94).

      . Smith v. Quarles Drilling Co., 99-171 (La.App. 3 Cir. 6/2/99), 741 So.2d 829, writ denied, 99-1949 (La.10/8/99), 751 So.2d 227.

      . Darby v. Gilbert Richard, Inc., 02-1154 (La.App. 3 Cir. 2/5/03), 838 So.2d 141 (citing Rosell v. ESCO, 549 So.2d 840 (La.1989)).