author: 2WHIPPLE, J.

text:
    Alan AVDOYAN v. COVINGTON COUNTRY CLUB
    No. 2002 CA 1025.
    Court of Appeal of Louisiana, First Circuit.
    March 28, 2003.

      Edward Markle, New Orleans, for Claimani/Appellant, Alan Avdoyan.
    Patricia McKay Clotiaux, Metairie, for Defendant/Appellee, Covington Country Club.
    Before: CARTER, C.J., WHIPPLE and CIACCIO, JJ.

      . Judge Philip C. Ciaccio, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   2WHIPPLE, J.

In this workers’ compensation case, claimant/appellant, Alan Avdoyan, appeals from a judgment granting his employer’s peremptory exception raising the objection of prescription. The defendant employer, Covington Country Club, answered the appeal, requesting costs and attorney’s fees for the filing of a frivolous appeal. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The pertinent facts surrounding claimant’s injury are not in dispute. On October 6, 1993, claimant filed a claim with the Office of Workers’ Compensation (OWC) asserting that on December 7, 1992, he sustained an injury to his left knee and right groin area while acting in the course and scope of his employment at Covington Country Club. On March 1, 1994, he filed a supplemental claim alleging that on February 11, 1994, he sustained an aggravation of his injury while performing duties at work.

As a result, claimant sought medical treatment and eventually underwent a hernia operation performed by Dr. Surendra K. Purohit. Thereafter, he submitted the related medical expenses to his employer and its insurer, Aetna, for payment or reimbursement. By letter dated August 16, 1994, Aetna confirmed an agreement to reimburse claimant $1,500.00 for medical bills he had paid and to pay a list of outstanding medical bills. The letter stated that a “Motion to Dismiss” and a “Receipt and Release” would accompany the $1,500.00 check payable to claimant, thus eliminating the necessity of a previously-scheduled trial. As a result of this agreement, an order was issued by the OWC on November 21, 1994, dismissing the matter without prejudice and noting that the “action may only instated upon a showing of good cause within thirty (30) days of receipt of this order.” After the | ¡¡matter was dismissed, Aetna continued to pay medical expenses related to claimant’s hernia, as submitted, until May 31, 1996, when Aetna stopped paying the bills. Although claimant continued to receive medical treatment and incur expenses, Aetna stopped or refused to pay the invoices submitted by claimant’s health care providers.

On September 28, 2001, he filed a “Disputed Claim for Compensation” with the OWC requesting reimbursement for office visits to Dr. Purohit. While claimant identified eight visits made since the last payment of May 31, 1996, his demand for payment by Travelers referred to four of the eight visits. In response, the defendant filed an answer and a peremptory exception of prescription.

On January 31, 2002, the OWC rendered judgment granting defendant’s exception of prescription and dismissing the claim with prejudice. Claimant appeals, assigning the following as error:

1. The Honorable Workers’ Compensation Judge erred by granting defendant’s exception which precludes plaintiff from receiving payment of prior medical expenses submitted by the treating physicians to the insurance carrier and further preventing the plaintiff from seeking and obtaining payment of future medical expenses associated with a hernia received in 1992 and an aggravation thereof in 1994.
2. The Honorable Judge erred by apparently basing his decision on prescription enumerated in LSA-R.S. 23:1209 when the Honorable Court should have applied LSA-R.S. 23:1310.8.

DISCUSSION

Initially we must determine whether the claim for medical expenses incurred after May 31, 1996 is governed by the three-year prescriptive period of LSA-R.S. |423:1209(C) or remains viable as a claim subject to the continuing jurisdiction of the OWC to modify its orders, as provided in LSA-R.S. 23:1310.8.

Louisiana Revised Statute 23:1209(0 provides as follows:

All claims for medical benefits payable pursuant to R.S. 23:1203 shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed with the office as provided in this Chapter. Where such payments have been made in any case, this limitation shall not take effect until the expiration of three years from the time of making the last payment of medical benefits.

Louisiana Revised Statute 23:1310.8 provides in part:

A. (1) The power and jurisdiction of the workers’ compensation judge over each case shall be continuing and he may, upon application by a party and after a contradictory hearing, make such modifications or changes with respect to former findings or orders relating thereto if, in his opinion, it may be justified, ... however, upon petition filed by the employer or insurance carrier and the injured employee or other person enti-tied to compensation under the Workers’ Compensation Act, a workers’ compensation judge shall have jurisdiction to consider the proposition of whether or not a final settlement may be had between the parties presenting such petition, subject to the provisions of law relating to settlements in workers’ compensation cases.

Claimant argues that pursuant to LSA-R.S. 28:1310.8, the workers’ compensation judge has continuing jurisdiction to modify former orders. Thus, he contends, the November 21, 1994 order issued by the OWC dismissing the matter without prejudice encompassed his continuing and future medical treatment and claims and rendered them subject to review under the OWC’s continuing jurisdiction. In support of his argument, claimant relies on Falgout v. Dealers Truck Equipment Company, 98-3150 (La.10/19/99), 748 So.2d 399. Defendant counters that Falgout is inapplicable to the facts herein as it strictly pertains to a weekly award of indemnity compensation benefits governed by LSA-R.S. 23:1209(A), rather than a claim for medical benefits as sought in the instant case, which is governed by LSA-R.S. 23:1209(0).

|sIn Falgout, the Supreme Court was faced with the issue of whether the legislature had expressed an intent to subject modifications of compensation awards to a defense of prescription. Falgout, 98-3150 at p. 10, 748 So.2d at 406. Following a through analysis of the legislative history of LSA-R.S. 23:1209 and the subsequent enactment of LSA-R.S. 23:1310.8, the Supreme Court held that “absent express legislative intent to the contrary, prescription is not applicable to claims for modification of a workers’ compensation award.” Falgout, 98-3150 at p. 11, 748 So.2d at 407.

In Falgout, however, unlike the facts of the instant ease, the workers’ compensation judge rendered judgment awarding claimant weekly compensation | (¡indemnity benefits in the amount of $282.00 per week for forty-six weeks. The claimant later underwent a second surgery and after his condition seemed to improve, was awarded a lump sum payment for weekly benefits in the amount of $8,393.01. Claimant’s condition and disability rating subsequently deteriorated, after which he filed a 1008 Claim Form requesting indemnity benefits based on his worsened condition. The claim form was subsequently amended to seek a modification of the previous judgment that had awarded the initial weekly indemnity benefits in accordance with LSA-R.S. 23:1310.8. The defendant then filed an exception urging the objection of prescription.

In the instant case, there was no prior judgment awarding weekly indemnity benefits. Because the parties entered into a settlement, an order was issued dismissing the matter without prejudice. Thus, no award existed which could be subject to modification pursuant to LSA-R.S. 23:1310.8. Indeed, claimant did not file a motion to modify any prior award of benefits. Claimant failed to timely reinstate the former claim or timely file and pursue another claim with the OWC. In sum, claimant does not seek to modify a prior award, but seeks to have medical expenses paid, specifically, the office visits to Dr. Purohit. Thus, the R.S. 23:1209(C) prescriptive period of three years from the time of making the last payment of medical benefits applies. The last medical benefit was paid May 31, 1996 and the Form 1008 was filed on September 26, 2001. His request clearly falls outside of the three-year time limitation for filing a claim for medical benefits. We find no merit to this assignment.

Secondly, claimant contends that the insurance carrier should be required to pay medical expenses submitted by treating physicians but not paid by the 17insurance carrier when the insurance carrier failed to provide “notice of non-payment” to the claimant. Specifically, claimant alleges that “the facts demonstrate that the Carrier did not inform [claimant] until after prescription had run that the submitted invoices had not been paid.”

We likewise find no merit to this argument. If claimant sought to challenge the denial or non-payment of any medical expenses, or even the carrier’s failure to provide “notice of non-payment,” his remedy was to file a claim with the OWC within three years of the May 31, 1996 payment. He failed to do so. Instead, he filed the Form 1008 challenging the denial or nonpayment of medical expenses on September 26, 2001, over five years since the last medical payment.

Claimant further argues that he should be entitled to future medical expenses related to his hernia operation and related procedures. In support of this argument, claimant cites Owens v. Liberty Mutual Insurance Company, 307 So.2d 313 (La.1975), and argues that a reoccur-rence or complication of a prior hernia injury was considered compensable as a separate herniation. However, as the Supreme Court noted in a related case, “an employee’s action after the hernia recurrence is governed by the same provisions and limitations that apply to the cause of action based on the initial hernia.” Owens v. Liberty Mutual Insurance Company, 456 So.2d 146, 148 (La.1984). Thus, the three-year prescriptive period of LSA-R.S. 23:1209(0 remains applicable herein. Claimant filed a claim for the aggravation of his existing hernia injury on March 1, 1994, and the last payment of medical benefits was made on May 31, 1996. Accordingly, claimant had until May 31, 1999, at the latest, to file a claim, relative to the aggravation of his initial hernia injury. He failed to do so.

This assignment also lacks merit.

| «ANSWER TO APPEAL

In the answer to appeal, defendant contends that “there is no basis in law or fact for reversal of the lower court decision and that the appeal filed ... is frivolous.” Defendant requests that reasonable attorney’s fees and appellate costs be awarded pursuant to LSA-C.C.P. art. 2164.

Although claimant did not prevail in this appeal, we are unable to say that his attempts to do so were frivolous. ' Thus, we deny the request for an award of attorney’s fees.

CONCLUSION

For the above and foregoing reasons, the January 31, 2002, judgment granting defendant’s exception of prescription and dismissing claimant’s claim with prejudice is affirmed. The answer to appeal filed by defendant is denied. Costs of this appeal are assessed against the claimant/appellant, Alan Avdoyan.

AFFIRMED; ANSWER TO APPEAL DENIED.

      . Travelers Casualty and Surety Corporation is the successor to Aetna.

      . Claimant contends in his brief that these refusals occurred without his knowledge.

      . Specifically, he complained that Travelers had failed to pay for the visits to Dr. Purohit of December 13, 1996, July 3, 1997, October 25, 1999, and May 1, 2001.

      .By letter dated October 6, 1999, Travelers had refused payment, citing LSA-R.S. 23:1209(C), and noting, "[t]he law clearly states that you have three (3) years from the date of the last medical payment to keep the medical portion of your claim viable. Our last medical payment was in May, 1996; thus the required three years have elapsed.”

      . As noted in Falgout:

      The history of the modification statute under Louisiana workers' compensation law shows that the prescriptive period contained in La. R.S. 23:1209 does not automatically apply to claims of modification. First, until recently, the modification statute did not contain a prescriptive period nor did the courts apply La. R.S. 23:1209 to claims for modification, at least for the first sixty-one years of its existence. Second, nothing in the legislative history shows that the legislature ever intended to apply La. R.S. 23:1209 to claims for modification of compensation. The original language of the statute read that modification of a workers’ compensation judgment could be had "at any time,” which rules out a prescriptive period applying to the statute from its conception. Although this language was eventually deleted, the subsequent versions do not give any indication that the legislature intended, by the mere deletion of this language alone, to impose the prescriptive limit contained in La. R.S. 23:1209 to the modification statute. Further, in 1975, after Landreneau [v. Liberty Mutual Ins. Co., 309 So.2d 283, 285-286 (La.1975)] was handed down, the legislature understood the "present law” under La. R.S. 23:1209 to be that “all claims for payment must be made within one year after the accident or death except where voluntary payments are being made the year does not begin to run until the payments cease.” Act No. 583, Regular Sess., Digest (1975). Thus, in 1975, at least, the legislature understood that the prescriptive period of one year from the date of the last payment contained in La. R.S. 23:1209 applied only to cases where voluntary payments had been made before a claim was initiated. There is no indication the legislature envisioned La. R.S. 23:1209 as applying to claims for modification of workers’ compensation awards. Third, the legislative history of the 1999 session shows that the original purpose of Act 323, which amended La. R.S. 23:1310.8 to provide that La. R.S. 23:1209 applies to claims for modification, was to clarify that claims for modification of compensation could be made "at any time.” Senate Committee on Labor & Industrial Relations, 1999 Regular Session, Minutes (5/6/99). However, it was not until after a compromise between the house and senate that the bill was enacted as applying a prescriptive period for claims for modification of compensation. Id.

        Falgout, 98-3150 at pp. 10-11, 748 So.2d at 406-407. (Footnotes omitted.)

      . Claimant filed three specific claims with the OWC: (1) the October 6, 1993 claim for the original 1992 injury; (2) the March 1, 1994 supplemental claim for the aggravation of the 1992 injury; and (3) the September 28, 2001 claim for payment of medical expenses. None of these claims seek to modify a prior award of benefits.

      . Louisiana Code of Civil Procedure article 2164 provides in part:
      The appellate court ... may award damages for frivolous appeal; and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.


source: Caselaw Access Project

author: 2CARTER, C.J.

license: Public Domain

text:
    Frank H. HUDSON v. EAST BATON ROUGE PARISH SCHOOL BOARD
    No. 2002 CA 0987.
    Court of Appeal of Louisiana, First Circuit.
    March 28, 2003.

      Frank H. Hudson, Baton Rouge, Appellant, In Proper Person.
    Tina Darensbourg, Baton Rouge, Attorney for Defendant/Appellee, East Baton Rouge Parish School Board.
    Before: CARTER, C.J., WHIPPLE, and CIACCIO, JJ.

      . Hon. Philip Ciaccio, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   2CARTER, C.J.

Frank Hudson appeals a judgment of the. Office of Workers’ Compensation Administration (OWC) sustaining a peremptory exception raising the objection of prescription and dismissing his claims for workers’ compensation benefits.

FACTS

On October 30, 1998, Hudson filed a disputed claim for compensation against his former employer, the East Baton Rouge Parish School Board (School Board) and its insurer, Gallagher Bassett Insurance (Insurer). Hudson asserted that he injured his neck, rotator cuff and hands in a 1992 accident. Hudson further asserted that he was discharged from his employment and since that time has received no benefits.

The School Board filed a peremptory exception raising the objection of prescription, contending Hudson’s claims were prescribed under LSA-R.S. 23:1209. It contended that Hudson’s claim for indemnity benefits prescribed on January 11, 1996 and his claim for temporary total disability benefits prescribed on January 11, 1998. After a hearing, the Workers’ Compensation Judge (WCJ) sustained the peremptory exception raising the objection of prescription and dismissed Hudson’s claims. Hudson appeals.

MOTION TO INTRODUCE EVIDENCE

On the same date he filed his appeal brief, Hudson filed with this court a motion to introduce additional evidence. The motion was referred to the merits of this appeal.

As an appellate court, we have no jurisdiction to receive new evidence. Jones v. Rodrigue, 2000-0899, 2000-0900, p. 9 (La.App. 1st Cir.11/3/00), 771 So.2d 275, 281. An appellate court must render its judgment upon the record on appeal. LSA-C.C.P. art. 2164. The record on appeal is that which is sent by the OWC to the appellate court and includes the pleadings, court minutes, transcripts, jury instructions, judgments and other rulings, unless otherwise designated. LSA-C.C.P. arts. 2127 and 2128; Official Revision Comment (d) for LSA-C.C.P. art. 2127. An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Hazey v. McCown, 2001-0929, p. 5 (La.App. 1st Cir.5/10/02), 818 So.2d 932, 936. Therefore, the motion to introduce additional evidence must be and hereby is denied.

| ¡¡MOTION TO CONSOLIDATE

On the day before oral argument in this case, Hudson filed a second motion styled a “Motion to Consolidate.” Through that motion, Hudson seeks to have this court consider issues concerning denial of unemployment and social security benefits as part of this appeal.

Generally, appellate courts will not consider issues raised for the first time on appeal, which were not pleaded in the court below and which the court below has not addressed. Geiger v. State ex rel. Dept. of Health and Hosp., 2001-2206, p. 11 (La.4/12/02), 815 So.2d 80, 86. This court has received correspondence from Hudson, along with accompanying documents, purporting to show that certain issues were discussed before the WCJ. However, the only issue before the WCJ at the hearing, and the only issue the WCJ considered, was the peremptory exception raising the objection of prescription. While the issues to which Hudson refers may have been informally discussed, procedurally, the only issue properly before this court is that of prescription. We cannot address the substantive issues Hudson raises through his motion to consolidate. Consequently, that motion is denied.

PRESCRIPTION

The judgment appealed from sustained a peremptory exception raising the objection of prescription.

Liberative prescription is a mode of barring actions as a result of inaction for a period of time. LSA-C.C. art. 8447. The prescriptive period applicable to claims for workers’ compensation benefits is set forth in LSA-R.S. 23:1209A, which provides, in pertinent part:

A. In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after Rthe accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4). Also, when the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.

Thus, under LSA-R.S. 23:1209A, claims are barred unless filed within: (1) one year from the date of the accident; (2) one year from the last compensation payment for total disability or three years from the last payment for partial disability; or (3) one year from the time the injury develops if not immediately manifested, but, in any event, no more than two years after the accident. Additionally, LSA-R.S. 23:1209C provides that a claim for medical benefits prescribes one year from the date of the accident unless payments have been agreed upon, or unless a claim is filed within one year of the accident. Where payments have been made, the claim prescribes three years from the date of the last payment of medical benefits. Jackson v. Southern Livestock Supply, 2001-2560, p. 4 (La.App. 1st Cir.11/8/02), 834 So.2d 460, 463-464.

The burden of proof is generally on the party pleading prescription. However, when a workers’ compensation claim to recover benefits has prescribed on its face, the claimant has the burden of showing that prescription has been interrupted in some manner. Evidence may be introduced to support or controvert the peremptory exception raising the objection of' prescription when the grounds do not appear on the face of the petition. LSA-C.C.P. art. 931. Generally, in the absence of evidence, the objection of prescription must be decided upon the facts alleged in the petition, and all allegations thereof are accepted as true. Jackson, 834 So.2d at 464.

At the hearing on this matter, the WCJ heard the argument of counsel for the School Board then questioned Hudson herself. The WCJ made a factual finding that January 11, 1995 was the last date that temporary total disability payments were paid to Hudson, and the date that Hudson’s prescriptive period commenced. Based on her questioning of Hudson, the WCJ also found that the School Board did not pay him | swages in lieu of compensation for days he missed. However, no evidence was introduced at the hearing and no sworn testimony was presented.

Relaxed rules of evidence and procedure apply in workers’ compensation proceedings. Evidence that may be inadmissible in an ordinary proceeding may be considered in a workers’ compensation proceeding, so long as it is “competent evidence.” LSA-R.S. 23:1317A; Godeaux v. Lewis Chapman Const. Co., 2002-0025, p. 11 (La.App. 1st Cir.12/31/02), 836 So.2d 670, 678. However, such evidence must be properly admitted in order to be “competent.” Godeaux, 836 So.2d at 679. The Louisiana Supreme Court has explained:

LSA-RS 23:1317 mandates that the hearing officer’s factual findings be based on “competent evidence.” La. Rev.Stat. Ann. 23:1317(A) (West Supp. 1997). This legislative mandate is necessary because under the express language of LSA-RS 23:1317, worker’s compensation hearing officers are “not bound by the technical rules of evidence.” Id. In other words, the hearing officer has the discretion to admit evidence that would otherwise be inadmissible under the. Louisiana Code of Evidence. This more relaxed standard for the admissibility of evidence is the general rule in proceedings before administrative agencies. McCormick on Evidence § 352 (4th ed.1992). The legislative requirement that a hearing officer’s factual-findings be based upon competent evidence is the safeguard that ensures that the factual findings are made on evidence that has some degree of reliability and trustworthiness, notwithstanding that the evidence might fall outside of the technical rules for admissibility. Therefore, when a reviewing court evaluates the factual findings of a hearing officer under the manifest error standard, it must determine whether the factual findings are reasonable and supported by competent evidence in the record. Although the Legislature has not defined “competent evidence,” in order to give the relaxed evidentiary standard in LSA-RS 23:1317 effect, it must not be defined so narrowly as to mean only evidence that would fall within the parameters of the Louisiana Code of Evidence. If the hearing officer’s factual findings are reasonably supported by competent evidence, then the reviewing court must affirm them.

Chaisson v. Cajun Bag & Supply Co., 97-1225, pp. 9-10 (La.3/4/98), 708 So.2d 375, 381 (footnote omitted). Even under the relaxed evidentiary rules applicable in this ease, the argument of counsel and the unsworn testimony of a pro se litigant are not competent evidence sufficient to support the WCJ’s factual findings.

In the absence of evidence, the peremptory exception should have been decided on the allegations of the petition, with all of those allegations accepted as true. We | shave reviewed Hudson’s disputed claim for compensation, which serves as his petition. Hudson’s alleges a date of accident or injury of September 15, 1992. He further alleges that since his discharge from employment, he has not received medical or monetary benefits. Hudson does not allege a date that those benefits ceased or a date of discharge of his employment.

Considering the allegations of the petition, we cannot say that Hudson’s claim is prescribed on its face. Accepting the allegations as true, Hudson was paid some benefits prior to his unknown date of discharge. However, the date that the benefits ceased and the prescriptive period commenced is unclear. Prescription statutes are to be strictly construed in favor of maintaining rather than barring actions. Ortis v. Ortco Contractors, Inc., 2000-1460, p. 3 (La.App. 1st Cir.9/28/01), 809 So.2d 300, 302. Based on the absence of evidence and the ambiguities in Hudson’s petition, the judgment of the WCJ sustaining the peremptory exception raising the objection of prescription and dismissing Hudson’s claims is reversed.

CONCLUSION

For the reasons set forth herein, the motion to introduce evidence and the motion to consolidate are denied. The judgment of the OWC sustaining the peremptory exception raising the objection of prescription is reversed. Costs of this appeal in the amount of $284.03 are assessed to the East Baton Rouge Parish School Board. This case is remanded to the OWC for further proceedings consistent with the views expressed herein.

MOTION TO INTRODUCE EVIDENCE DENIED; MOTION TO CONSOLIDATE DENIED; JUDGMENT REVERSED; CASE REMANDED.

      . Hudson is representing himself in this appeal. His pro se brief contains no assignments of error, but clearly challenges the judgment sustaining the exception raising the objection of prescription. A layman representing himself cannot be held to the same standards of skill and judgment that must be attributed to an attorney. However, he assumes responsibility for his own inadequacy and lack of knowledge of both procedural and substantive law. Lapeyrouse v. Barbaree, 2002-0086, p. 7 (La.App. 1st Cir. 12/20/02), 836 So.2d 417, 422. Considering the pro se nature of this appeal, and the fact that the School Board has not alleged any prejudice, we will address the legal issues relating to Hudson’s appeal of the judgment sustaining the peremptory exception raising the objection of prescription.

      . The record in this matter contains a certification by the court reporter that no sworn testimony was produced at the hearing on the peremptory exception raising the objection of prescription.


author: 2KLINE, J.

text:
    Jerry W. DRESSEL v. TOPEKA TRANSFER & STORAGE.
    No. 2002 CA 0779.
    Court of Appeal of Louisiana, First Circuit.
    March 28, 2003.

      Gregory J. Miller, Baton Rouge, Counsel for Appellee Jerry W. Dressel.
    Richard C. Ely, Jr., Donald E. McKay, Jr., New Orleans, Counsel for Appellant Topeka Transfer & Storage.
    Before: FOIL, McCLENDON, and KLINE, JJ.

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

   2KLINE, J.

This is an appeal from a judgment against Topeka Transfer & Storage (“Topeka”), awarding claimant, Jerry W. Dressel, temporary total disability benefits, medical expenses, penalties and attorney’s fees. The judgment was rendered after Topeka failed to appear at trial. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On July 14, 2000, Jerry W. Dressel filed a claim for compensation with the Office of Workers’ Compensation, alleging that he sustained work-related injuries to his ribs, back, neck and left leg. He identified American Van and Storage (“AMerican”) and Topeka as his employers at the time of the accident. On March 12, 2001, Topeka, through George Hersh, president of the company, acknowledged receipt of the claim, waived citation and accepted service. Topeka also filed an answer to the claim whereby it denied that Mr. Dressel was an employee and stated that it had no record of him working for Topeka. On April 16, 2001, American and its insurer, Vanliner Insurance Company (“Vanliner”), filed an answer. A scheduling conference was held by the workers’ compensation judge (“WCJ”) on May 22, 2001. Topeka was not present. At that time, a trial date was set for October 11, 2001. On June 25, 2001, American and Vanliner filed a motion for summary judgment requesting that the WCJ dismiss Mr. Dressel’s claim against them. On July 13, 2001, the WCJ granted American’s motion for summary judgment, dismissing Mr. Dressel’s claim against American and Vanliner. Topeka was not present at the proceedings. A final judgment was signed on July 17, 2001. A notice of the judgment was sent to Mr. Dressel and counsel for American. On October 11, 2001, a trial on the merits was held. Topeka was not present for trial. The WCJ heard testimony from Mr. Dres-sel. The WCJ then ruled that Mr. Dressel would provide additional documentation and a rule date would be set after he called. On November 16, 2001, the WCJ entered judgment in favor of Mr. Dressel and against Topeka, stating the following:

laThis cause came on for completion of the confirmation of default hearing on the 16th day of November 2001, in Baton Rouge, Louisiana.

* * *

It is Hereby Ordered, Adjudged and Decreed that:

1. The claimant was employed by the defendant and injured himself in the course and scope of his employment on June 9, 2000.
2. The claimant’s average weekly wage on the date of accident was $300, providing a corresponding indemnity rate of $200 per week.
3. The defendant owes Workers’ Compensation benefits to the claimant in the following respects:
4. The claimant is awarded Temporary Total Disability from June 9, 2000 to date at the rate of $200 per week, totaling $15,000 plus legal interest at the rate of 7.285% on each installment until paid.
5. The claimant’s indemnity benefits are to continue to accrue weekly at the rate of $200 per week as provided under the Act.
6. The claimant is entitled to medical treatment for his continuing back problems with his treating physician, Dr. Charles Tessier and dental work with his treating dentist, Dr. Daly.
7. The claimant is awarded medical expenses in the amount of $8879.61 representing bills filed into evidence which are hereby declared reasonable and necessary medical treatment of his injuries, together with legal interest at the rate of 7.285% from the date of award until paid.
8.The claimant is awarded penalties in the amount of $2000 for failure to pay medical expenses and $2000 for failure to pay indemnity benefits without reasonably controverting the claim, together with legal interest at the rate of 7.285% from the date of award until paid.

Notice of the judgment was mailed to both Mr. Dressel and Topeka.

Topeka appeals the WCJ’s judgment and asserts the following assignments of error:

1. The WCJ committed manifest error in finding an employer-employee relationship between Topeka and Dressel.
2. The WCJ erred as a matter of law in calculating Dressel’s average weekly wage to be $300.
3. The WCJ committed manifest error in finding that an accident occurred.
|44. The WCJ committed manifest error in finding that Dressel was and continued to be temporarily and totally disabled as a result of the accident.
5. The WCJ committed manifest error in finding that Dressel was entitled to medical treatment from Dr. Charles Tessier and dental treatment from Dr. Daly and entitled to medical expenses in the amount of $8,879.61.
6. The WCJ committed manifest error in finding that Dressel was entitled to penalties under the Act in the amount of $2,000 for failure to pay medical expenses and $2,000 for failure to pay indemnity benefits without reasonably controverting the claim.

LAW AND DISCUSSION

In its written brief, Topeka initially makes mention that it was not aware that it was still a party to the instant case. It bases its conclusions upon conversations its attorney allegedly had with opposing counsel indicating that the case would be dropped and the fact that the notices it received regarding subsequent hearings and conferences only made mention of American as a defendant and did not state that Topeka was still a defendant at that time. Topeka does however concede that it received all notices, “including the Notice of Status Conference, Notice of Hearing on a Motion... Notice of Pre-Trial Conference, and Notice of Trial.” As a result, Topeka was not present for any of the stated conferences, hearings, and the trial. Topeka does not assign error to the WCJ continuing with trial without Topeka being present. Topeka did receive notice that it was being sued, filed an answer into the record, and waived citation at that time. With that stated, we do not find that Topeka was prejudiced by any action of the WCJ regarding notice.

Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. The two-part test for the appellate review of a factual finding is: 1) whether there is a reasonable factual basis in the record for the finding of the factfinder, and 2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the WCJ’s finding, no additional inquiry is necessary. However, if a reasonable factual basis exists, an 1 ^appellate court may set aside a WCJ’s factual finding only if, after reviewing the record in its entirety, it determines the WCJ’s finding was clearly wrong. See Stobart v. State, through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 882; Morris v. Norco Construction Company, 632 So.2d 332, 335 (La.App. 1 Cir.1993), writ denied, 94-0591 (La.4/22/94), 637 So.2d 163.

A trial on the merits of the case was held on October 11, 2001. At that time, Mr. Dressel, then unrepresented by counsel, testified by answering questions asked by the WCJ. Mr. Dressel testified that he first became employed by Topeka by working for United Van Lines. He worked there for about four and a half years. He indicated that Topeka was an agent for United Van Lines. At the time of the accident, he was a loader.

Mr. Dressel stated that the accident occurred on June 8, 2000, when he was loading a truck in Shreveport, Louisiana. He recalled that the driver’s name was Mike. He stated that there were two witnesses to the accident, one named Joe. (He stated that all the specific information regarding the witnesses were in a briefcase which he did not have with him at that time). According to Mr. Dressel, two co-workers were at the top of an aluminum ladder while loading the truck. They were putting an ottoman on top of the load. He stated that one co-worker was on the other side of the ladder and he was on the side of the ladder. One co-worker hollered, the aluminum ladder collapsed, and the two coworkers fell on top of him. There was a child’s toy tractor on the bottom of the truck and he fell against that and then to the bottom of the truck. He then stated that after he fell, the other co-worker was helping him up and he had to sit on the side until they finished loading the truck. The co-worker then was going to call an ambulance, but told him to sit for a few minutes. The co-worker then told him to lago to the doctor. He brought him back to the truck stop and left him there. The co-worker did not pay him the rest of the money he owed him for making the load.

Mr. Dressel indicated that, in turn, he went to the emergency room at a hospital in Shreveport and stayed there all night and the next day. The next day he had to go to another doctor to have x-rays taken. He stated he stayed in a motel in Shreveport for a week and a half to two weeks and then went to Baton Rouge because he did not know anyone in Shreveport. At the time, his home was in Texas.

Mr. Dressel indicated that he was supposed to get paid $75.00 on that particular load for four hours of work. He was to be paid by the load. Prior to that load, he had worked two days prior, out of Dallas, for United Armstrong, the same agent. He was doing unloading then. He was paid $12.50 an hour. He was on that truck for three days and worked an average of eight to nine hours per day. He stated that it was out of Dallas, but that he also did work for United out of Missouri and New Jersey, as recently as April or May of 2000. He indicated that he worked usually 55 and 65 hours a week and that most times he was paid in cash or he received ‘comp’ checks. No check stubs were admitted into the record. To find work with United, he would call the agent and the agent would tell him if a truck was coming in and he would go to the truck stop or meet them at the residence or at the warehouse. Normally the driver paid him. If he were a driver, United Van Lines would pay him.

Mr. Dressel indicated that he injured his leg in the instant accident. He had to have an operation on his left leg at Charity Hospital. He also hurt his left ankle and he broke his tail bone. He also injured the L4 and L5 discs in his back and his wrist. He indicated that his emergency room visit on July 21, 2001 was related to the June 9, 2000 subject accident and his visit to the hospital in Shreveport.

Mr. Dressel admitted that he had a number of previous injuries, dating as far back as 1989. He injured himself while working on a rig that caught fire. His |7ankle was reconstructed during surgery. He had to have it redone again in 1996 or 1997. This was the same ankle injured in the instant accident. He also was injured in Texas where United Van Lines kept him off of work for a year. He also broke two fingers and his arm prior to the instant accident also. United paid him while he was off work and paid his medical expenses. He also admitted that he injured his back in 1997 and 1998, but it had healed prior to the instant accident. He then returned to work and was injured on the truck from which injury this case arises. He has not worked anywhere since then. He stated that his treatment with Dr. Tessier was a result of the instant accident.

The record contains a transcript of the hearing held on October 11, 2001, before the WCJ. The only evidence introduced at the hearing was the testimony of Mr. Dressel and a number of exhibits, consisting primarily of medical bills from July of 2001 to September of 2001. The WCJ did postpone ruling until Mr. Dressel could supplement the record with additional documentation. Mr. Dressel later submitted a letter from his treating physician, Dr. Charles R. Tessier, III, two medical bills for services rendered previously, and a printout of hospital charges from Willis-Knighton South, in Shreveport, Louisiana, for treatment on June 9, 10, and 11, 2000.

Mr. Dressel related that he worked for United, an agent of Topeka, for nearly four years, and that at the time of the accident, he was working for United loading a truck, clearly during the course and scope of his employment. Although no other evidence was introduced to support Mr. Dressel’s testimony, his testimony was uncontradict-ed due to the absence of the defendant, and the WCJ was relegated to hear the testimony and to question the claimant in an effort to weigh the evidence and determine the credibility.

However, we find that Mr. Dressel has failed to establish that he was entitled to workers’ compensation benefits from the defendant. Much of the record was wanting of evidence to support specifically what injuries were caused by the instant accident or to determine the exact amount of his average weekly wages and thus, the amount of benefits which Mr. Dressel might be entitled. The medical evidence presented by Mr. Dressel was insufficient to determine whether |shis disability was caused by the instant accident, and to what extent he was entitled to workers’ compensation benefits. Mr. Dressel’s testimony was not supported by sufficient, competent medical evidence. In fact, the statement given by Dr. Tessier included information that bring into question whether Mr. Dres-sel’s injuries were preexisting, were caused by the instant accident, or were caused by other accidents.

A worker’s testimony alone may be sufficient to discharge his burden of proof if no other evidence discredits or casts serious doubt upon the worker’s version of the incident and the worker’s testimony is corroborated by the circumstances following the alleged incident. Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends, and by medical evidence. Bruno v. Harbert Int’l. Inc., 593 So.2d 357 (La.1992). The trier of fact’s determination as to whether a compensa-ble injury was suffered is a question of fact and will not be disturbed unless manifestly erroneous or clearly wrong. Jackson v. Savant Ins. Co., 96-1424, p. 3 (La.App. 1 Cir. 5/9/97), 694 So.2d 1178, 1180.

Although a claimant can satisfy his burden of proving entitlement to workers’ compensation benefits through his own testimony alone, in the instant case, Mr. Dressel’s testimony contained a number of statements that were inconsistent with what he reported to Dr. Tessier, as evidenced by Dr. Tessier’s written statement, introduced into the record by Mr. Dressel. According to Dr. Tessier’s statement, Mr. Dressel first saw him on August 8, 2000 stating that he had an accident on July 15, 2000 when he fell at a truck stop. At that time Mr. Dressel indicated to Dr. Tessier that he was treated after the injury by the emergency room physicians at Our Lady of the Lake Hospital. On August 18, 2000, Mr. Dressel was seen by Dr. Tessier again, where he mentioned he fell in his truck in June of 2000. During trial, Mr. Dressel testified that the instant accident was the only accident that could have caused his injuries. He never mentioned the accidents as stated in Dr. Tessier’s statement. Dr. Tessier’s statement then indicates that on September 15, 2000, Mr. Dressel indicated to Dr. Tessier that two fellow employees fell on him when a ladder collapsed.

13It is also apparent from the statement, that Mr. Dressel had previous injuries, including a lifting injury in 1998. It is not clear from Dr. Tessier’s statement whether or not the medical problems Mr. Dres-sel experienced were related to the instant accident. Whereas Dr. Tessier does conclude that Mr. Dressel is “totally disabled with chronic back pain and has a probable disc herniation or herniations in the lower back area,” the statement is insufficient to establish what injuries are related to the instant accident and whether Mr. Dressel’s disability is related to the instant accident. No medical records exist in the record. Although there is some evidence, albeit inconsistent, from the testimony of Mr. Dressel, the statement of Dr. Tessier, and a medical bill from Shreveport, that an accident occurred and that it was during the course and scope of his employment, the medical evidence is insufficient to support Mr. Dressel’s claim that he is entitled to workers’ compensation benefits from the Topeka.

Topeka also contends that the WCJ erred as a matter of law in calculating Mr. Dressel’s average weekly wage. With this contention, we must agree. The testimony of Mr. Dressel was insufficient to determine an exact amount of his average weekly wage. Although Mr. Dressel testified as to how much he was to make on the particular day of the instant accident, there were too many ways in which Mr. Dressel implied he was paid. The record is deficient in competent evidence to enable a determination of average weekly wage.

As a result of these findings, we find that the WCJ’s judgment must be reversed and remanded for further proceedings.

CONCLUSION

For the foregoing reasons, we reverse the WCJ’s judgment and remand this matter for further proceedings. This remand makes moot a discussion of other assignments of error raised by Topeka Transfer and Storage. All costs of the appeal are assessed one-half to plaintiff and one-half to defendant.

REVERSED AND REMANDED.

McClendon, j., concurs.

      . The second page of the Disputed Claim form was missing from the record.

      . Although the WCJ referred to the hearing as a confirmation of a default hearing, defendant had filed an answer into the record.

      . Mr. Dressel’s testimony also implied that his work was on and off and was not always comprised of the same hours each day and that his pay rate was not always the same.


author: 3McCLENDON, J.

text:
    Lawrence ALPHONSE v. ACADIAN AMBULANCE SERVICES, INC., et al. The Succession of Catherine Alphonse v. Acadian Ambulance Services, Inc., et al. Walter Alphonse v. Acadian Ambulance Services, Inc., et al. Cathy Faucheux v. Acadian Ambulance Services, Inc., et al.
    Nos. 2002 CA 0773 to 2002 CA 0776.
    Court of Appeal of Louisiana, First Circuit.
    March 28, 2003.
    Writ Denied June 20, 2003.

      William C. Shockey, Paolo J. Messina, Baton Rouge, Counsel for Defendants/Appellants, Acadian Ambulance Services, Inc., Leslie Dawn Pray and Chad Dauzat.
    Ron S. Macaluso, Hammond, Counsel for Plaintiffs/Appellees, Lawrence Alphonse, Walter Alphonse, Cathy Faucheux and The Succession of Catherine Alphonse.
    Henry D. Salassi, Jr., Keith C. Armstrong, Baton Rouge, Counsel for The Louisiana Patients’ Compensation Fund and The Louisiana Patients’ Compensation Fund Oversight Board.
    Before: FOIL, McCLENDON, and KLINE, JJ.

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

   3McCLENDON, J.

This is a medical malpractice case arising from the death of Catherine Alphonse, a seventy-five year old patient of North Oaks Medical Center in Hammond, Louisiana. Named as defendants are Acadian Ambulance Service, Inc. (Acadian), and Leslie Pray and Chad Dauzat, the two emergency medical technicians employed by Acadian and involved in the transport of Ms. Alphonse from North Oaks Medical Center to North Oaks Rehabilitation Center, an extended care facility, also in Hammond.

Finding that the evidence does not support the trial court’s findings that the alleged breach of defendants’ standard of care caused Ms. Alphonse’s demise, or lessened her chance of survival, we reverse.

FACTS AND PROCEDURAL HISTORY

On May 13, 1996, Ms. Alphonse was transferred from Belle Maison Nursing Home, her residence of eight years, to North Oaks Medical Center. Ms. Alphonse was admitted to the hospital and diagnosed with severe, intractable nausea and vomiting, possible starvation, and numerous other health maladies including, diabetic ketoacidosis, rheumatoid arthritis with Felt/s syndrome, hypothyroidism, diverticulitis, multiple endocrine neoplasia syndrome # 1, left nephrectomy with left staghorn calculus removal, hiatal hernia with esophageal reflux, and multiple drug allergies.

On May 17, 1996, Ms. Alphonse had an acute fall in her blood pressure and was put on an intravenous (IV) drip of Dopamine to maintain pressure. On May 18, 1996, at the request of her family, the drip of Dopamine was terminated. By May 23, 1996, Ms. Alphonse was nonresponsive, in a coma and was having difficulty breathing. She was receiving oxygen by nasal cannula. She could not take anything by mouth, 14and the wishes of the family were to not use a feeding tube. Additionally, at the request of her family, there was a “Do Not Resuscitate” (DNR) order in place. As Ms. Alphonse’s condition was terminal, the decision was made to transfer her to the skilled nursing unit at North Oaks Rehabilitation Center. Ms. Alphonse’s diagnosis at that time included bronchitis-staphylococcus aureus beta lactamase positive, congestive heart failure, chronic renal failure, insulin-dependent diabetes mellitus, multiple endocrine neoplasia II syndrome, rheumatoid arthritis, anemia, osteoporosis, transient ischemic attacks/cerebrovascular accident, urinary tract infection-streptococcus species with candida albicans, fractured right hip, hypothyroidism, and glaucoma.

Acadian was called to transfer Ms. Alphonse from North Oaks Medical Center to North Oaks Rehabilitation Center. Pray and Dauzat, emergency medical technicians with Acadian, responded to the request and made the transfer. It is undisputed that Pray and Dauzat discontinued Ms. Alphonse’s oxygen when they moved her from her hospital room to the ambulance. However, whether oxygen was administered in the ambulance for the seven-minute ride to the extended care facility, is disputed. Following the transfer, Ms. Alphonse was unloaded from the ambulance and placed in the care of North Oaks Rehabilitation Center. At that time, she was no longer breathing.

Plaintiffs, Lawrence Alphonse, Walter Alphonse, Cathy Faucheux, and the succession of Catherine Alphonse, each filed separate claims against Acadian, Pray and Dauzat, pursuant to the Louisiana Medical Malpractice | RAct. LSA-R.S. 40:1299.41, et seq. Subsequently, the medical review panel, convened pursuant to the Act, reviewed the ease and rendered a decision. As the medical panel could not determine whether Ms. Alphonse was placed on oxygen during the transport in the ambulance unit, the panel determined that there was a material issue of fact not requiring expert testimony bearing on liability. See LSA-R.S. 40:1299.47G.

Following the panel’s decision, three of Ms. Alphonse’s children filed suit individually, and a suit was also filed on behalf of the succession of Catherine Alphonse. Each lawsuit alleged that the treatment of Ms. Alphonse by the defendants was below the standard of care required of them, which resulted in the death of Ms. Alphonse. The plaintiffs also pled in each of their petitions, all filed on October 28, 1999, that the damages cfaimed were not of such an amount requiring a trial by jury. Defendants answered each of the petitions generally denying their allegations and further asserting that they were entitled to a trial by jury as the claims of plaintiffs arose from a single event, i.e., the death of Catherine Alphonse. Defendants further pled the exception of no right of action in their answer to the petition of the Succession of Catherine Alphonse, alleging that the Succession of Catherine Alphonse was not the proper party to assert the claims arising from the death of Catherine Alphonse. On November 18, |fi1999, plaintiffs filed a motion to consolidate in each of the four lawsuits, which motion was granted on January 28, 2000.

The trial of the consolidated matters was held on September 13, 2000. Reasons for Judgment were signed on March 15, 2001. In said reasons, the trial court stated:

This court specifically finds the discontinuing of the use of oxygen by Dauzat and Pray for a period of approximately thirty minutes was a significant cause of her death. If Ms. Alphonse had continued to receive oxygen as ordered by her treating physician, she would have survived for at least some period beyond the negligent acts of Pray and Dauzat. Removing her supply of oxygen clearly took from Ms. Alphonse any chance of survival.

The trial court then determined, considering all relevant evidence in the record, and the stipulation by plaintiffs that no individual claim would exceed the threshold necessary for a jury trial, that $50,000.00 was an appropriate award of damages for Ms. Alphonse’s loss of chance of survival. The trial court farther stated that according to Smith v. State, Department of Health and Hospitals, 95-0038 (La.6/25/96), 676 So.2d 543, damages for the loss of a chance of survival were the only item of damages at issue before the court and it was therefore prohibited from consideration of any claim for damages for loss of consortium and the like, which would normally be brought by the legal survivor of the malpractice claim. Therefore, in its written reasons, the trial court rendered judgment in favor of the plaintiffs collectively and against the defendants in the amount of $50,000.00, for Ms. Alphonse’s loss of chance of survival.

Thereafter, on March 26, 2001, plaintiffs filed a Motion for Reconsideration of the written reasons for judgment requesting the trial court to reconsider its reasons for judgment to award each individual plaintiff wrongful death damages and “LeJeune” damages. The trial court, 17on reconsideration, in new reasons for judgment, signed on August 20, 2001, determined:

The facts presented support a finding by this court that had Ms. Alphonse been provided the proper treatment, namely the administration of oxygen she would have survived for some short indeterminate period beyond the negligent acts of the defendants. The withholding of the oxygen was the cause of Ms. Alphonse’s demise. Her pre-existing condition did not cause her death.

Accordingly, the trial court held that it was in error when it opined that the Smith case controlled. The trial court then found that the only limiting factor in the determination of damages was the stipulation that any award of damages would not exceed the jury threshold, i.e., $50,000.00. The trial court found that the evidence supported the maximum award for each of the four plaintiffs. Therefore, the trial court signed its judgment on August 28, 2001, awarding each plaintiff the amount of $50,000.00 in damages, for a total of $200,000.00.

It is from this August 28, 2001 judgment that defendants appeal, raising nine assignments of error:

1. The trial court erred by concluding that Acadian’s employees, Pray and Dau-zat, withheld the use of oxygen on Ms. Alphonse for approximately 30 minutes.

2. The trial court erred by concluding that Acadian breached the standard of care owed to Ms. Alphonse.

3. The trial court erred by concluding that the discontinuation of the use of oxygen by Pray and Dauzat was a significant cause of Ms. Alphonse’s death.

4. The trial court erred by concluding that if Ms. Alphonse had continued to receive oxygen, she would have survived for at least some period beyond the|snegligent acts of Pray and Dauzat, thereby taking away from Ms. Alphonse any chance of survival.

5. The trial court erred by concluding that an award of $50,000.00 would be an appropriate award of damages for Ms. Alphonse’s loss of chance of survival.

6. The trial court erred by concluding, on reconsideration, that the trial court was originally in error when it opined Smith v. State, Department of Health and Hospitals, 95-0038 (La.6/25/96), 676 So.2d 543, controlled.

7. The trial court erred by concluding that plaintiffs were entitled to wrongful death damages and “Lejeune” type damages.

8. The trial court erred by concluding, on reconsideration, that each of the four plaintiffs appealing was entitled to the maximum damage award of $50,000.00.

9. The trial court erred by awarding the Succession of Catherine Alphonse damages for wrongful death and survivorship claims.

DISCUSSION

Medical malpractice is defined by LSA-R.S. 40:1299.41A.(8) as:

any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs and medicines, or from defects in or failures of prosthetic devices, implanted in or used on or in the person of a patient.

LSA-R.S. 40:1299.41A.(7) sets forth the duty of health care providers:

(7) “Tort” means any breach of duty or any negligent act or omission proximately causing injury or damage to another. The standard of care required of every health care provider, except a hospital, in rendering professional services or health care to a patient, shall be to exercise that degree of skill ordinarily employed, under similar circumstances, by the members of his |9profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his best judgment, in the application of his skill.

Acadian, as an ambulance service, was therefore required to exercise that degree of skill ordinarily employed under similar circumstances by others in the profession in the same community or locality, and also to use reasonable care, diligence and judgment.

Thus, in suits alleging medical malpractice, the plaintiff must prove the applicable standard of care, the breach of that standard, and that the substandard care caused an injury that the plaintiff otherwise would not have suffered. Pfiffner v. Correa, 94-0992, pp. 7-8 (La.10/17/94), 643 So.2d 1228, 1233; Hoot v. Woman’s Hosp. Found., 96-1136, p. 5 (La.App. 1 Cir. 3/27/97), 691 So.2d 786, 789, writ denied, 97-1651 (La.10/3/97), 701 So.2d 209.

In this matter, plaintiffs allege that Ms. Alphonse’s life was abruptly and unnaturally ended by oxygen deprivation caused by the Acadian personnel. The trial court agreed with plaintiffs and held that the deprivation of oxygen was a “significant cause” of Ms. Alphonse’s death. The trial court awarded $50,000.00 for Ms. Alphonse’s loss of chance of survival. Plaintiffs subsequently argued that Smith v. State, Department of Health and Hospitals, 95-0038 (La.6/25/96), 676 So.2d 543, did not prohibit wrongful death damages in this matter asserting that this was not a case where the patient had a less-than-even chance of survival, but for the malpractice. On reconsideration, the trial court again agreed with plaintiffs finding that Ms. Alphonse’s pre-existing condition did not cause her death, but rather “the withholding of oxygen was the cause of Ms. Alphonse’s demise.” The trial court then supplemented its award and awarded each of Imthe plaintiffs $50,000.00 for Ms. Alphonse’s wrongful death and/or lost chance of survival.

In Hastings v. Baton Rouge General Hospital, 498 So.2d 713 (La.1986), the supreme court recognized the right of a victim to recover damages for the loss of a chance of survival, although that chance is a less-than-even chance because of a preexisting condition. Hastings held that the defendant’s conduct must increase the risk of the patient’s harm to the extent of being a substantial factor in causing the result, but need not be the only cause. Hastings v. Baton Rouge Gen. Hosp., 498 So.2d at 720.

It is not necessary to prove that a patient would have survived if proper treatment had been given, but only that there would have been a chance of survival in these lost chance of survival cases. Martin v. East Jefferson Gen. Hosp., 582 So.2d 1272, 1278 (La.1991). The plaintiff need only prove that the patient had a chance of survival and that his or her chance of survival was lost as a result of the defendant’s negligence. Smith v. State, Dep’t of Health and Human Resources Admin., 523 So.2d 815, 820 (La.1988).

The supreme court in Smith v. State, Department of Health and Hospitals, 95-0038 (La.6/25/96), 676 So.2d 543, further clarified these loss of a chance of survival cases and addressed the proper measure of damages. The court stated that allowing recovery for the loss of a chance of survival is not a change or a relaxation of the usual burden of proof by a preponderance of the evidence. Rather, allowing such recovery is a recognition of the loss of a chance of survival as a distinct compen-sable injury caused by the defendant’s negligence, to be distinguished from the loss of life in wrongful death cases, and there is no variance from the usual burden in proving that Indistinct loss. Smith v. State, Dep’t. of Health and Hosps, 95-0038, p. 6 (La.6/25/96), 676 So.2d 543, 547.

The court in Smith acknowledged that full recovery for survival and wrongful death damages are not available for deprivation of a chance of survival of less than fifty percent and stated that to allow full recovery would ignore plaintiffs inability to prove by a preponderance of the evidence that the malpractice victim would have survived but for the malpractice, which is a requirement for full recovery. Therefore, a lost chance of survival because of medical malpractice caused by a defendant’s negligence was recognized as a distinct compensable injury, valued as a lump sum based on all the evidence in the record. Smith v. State, Dep’t. of Health and Hosps., 95-0038 at p. 7, 676 So.2d at 547.

Thus, in a medical malpractice case seeking damages for the loss of a less-than-even chance of survival because of negligent treatment of a pre-existing condition, the plaintiff must prove by a preponderance of the evidence that the tort victim had a chance of survival at the time of the professional negligence and that the tortfeasor’s action or inaction deprived the victim of all or part of that chance, and must further prove the value of the lost chance, which is the only item of damages at issue in such a case. Smith v. State, Dep’t. of Health and Hosps., 95-0038 at p. 6, 676 So.2d at 547.

In this case, in order to recover damages for a breach of the standard of care applicable, the plaintiffs must either prove that Ms. Alphonse would have survived but for the‘ alleged malpractice or, for the lost chance of survival action, that Ms. Alphonse had a chance of survival and that the defendants’ conduct increased the risk of harm to Ms. Alphonse to the extent of being a substantial factor in causing her death.

| ^Pray, an EMT paramedic, testified that she did not receive any information about Ms. Alphonse requiring oxygen before the transport to the extended care facility. Her records indicated that she and Dauzat arrived at the hospital at 1:06 p.m. and departed at 1:43 p.m. They arrived at the extended care facility at 1:50 p.m. Pray also testified she reviewed Ms. Alphonse’s chart and the physician’s orders and there was no note with respect to oxygen. There was something in the physician’s orders about the IV. However, observing that the patient was on oxygen, Pray spoke to the nurse about both the oxygen and the IV. When Pray and the nurse could not find an order for the oxygen in the chart, the nurse told her about the notation in the chart to take measures to make the patient as comfortable as possible. Pray stated to the nurse that she was going to get the portable oxygen canister for the transfer of Ms. Alphonse to the ambulance, but the nurse explained to Pray that that was not necessary. The nurse explained Ms. Alphonse’s condition, and that the oxygen was just to make the patient comfortable. Pray therefore decided to disconnect the oxygen to transfer Ms. Alphonse from the hospital room to the ambulance. When Ms. Alphonse was loaded into the ambulance, Pray testified that the oxygen was reconnected. Pray further testified that she thought that a reasonable amount of time that the patient was without oxygen was three minutes.

Dauzat testified that Ms. Alphonse was disconnected from the oxygen in her hospital room right before she was transferred to the ambulance and that the walk from the room on the first floor to the ambulance unit was no |1smore than three to five minutes. He stated that he saw the oxygen connected in the ambulance.

Ms. Alphonse’s daughter, Cathy Fau-cheux, on the other hand, testified that she did not see the oxygen being administered in the ambulance. Ms. Faucheux rode in the back of the ambulance with her mother as she was being transferred to the extended care unit. Ms. Faucheux’s testimony, however, was inconsistent. Despite testifying that she did not see oxygen administered in the ambulance, she testified that she went to Acadian’s office in Hammond to speak to someone about the transport, and at that time.spoke with Dwain Meche. She further testified, in connection with her conversation with Mr. Meche, as follows: “I asked him why was it not— she not given oxygen from the room to the ambulance.” Ms. Faucheux made no mention or complaint regarding the administration of oxygen in the ambulance.

Dr. Laughlin Winkler, Ms. Alphonse’s treating physician and an expert in the field of internal medicine, testified that Ms. Alphonse was a very frail lady with many health problems. When she entered the hospital on May 13,1996, she came in with severe nausea, vomiting and she was dehydrated. Dr. Winkler testified that she ordered oxygen by nasal cannula for Ms. Alphonse. Dr. Winkler testified that a nasal. cannula is the device used for patients, who although may need oxygen, are in the least or lesser states of respiratory distress. When the patient slipped into a coma and the decision was made to transfer Ms. Alphonse, it was Dr. Winkler’s intention to continue the oxygen from the hospital through transportation and at the rehabilitation center. Dr. Winkler testified that the oxygen request was on the discharge summary. The record reveals, however, and Dr. Winkler admitted on cross-examination, that although the oxygen request was on her [ udischarge summary, the summary was dictated by Dr. Winkler on May 23, 1996, and not transcribed until May 25, 1996, two days after Ms. Alphonse’s death. Additionally, the physician’s orders of May 23, 1996, made no mention of oxygen, but did include a notation to provide comfort measures to the patient.

Dr. Winkler also stated that she believed that in a patient like Ms. Alphonse, the deprivation of oxygen for three to four minutes could cause or significantly contribute to her deterioration. However, Dr. Winkler admitted that the patient’s condition was terminal. Ms. Alphonse had sepsis and was never expected to regain consciousness. Dr. Winkler stated that Ms. Alphonse was faced with death, but not necessarily imminent. On cross-examination, she was asked:

Q. Doctor, isn’t it true that notwithstanding whether this patient had oxygen or not, she had no chance of survival at the time that she was wheeled down the hall on that stretcher out into the Acadian ambulance unit to be transported over to North Oaks? Isn’t it true she had no chance of survival?
A. That is correct.
Q. And isn’t it true notwithstanding whether this patient had oxygen or not, when that patient arrived at the rehab center, that patient had no chance of survival?
A. That is correct.

Therefore, Dr. Winkler admitted that Ms. Alphonse had no chance of survival.

Dr. Charles Genovese, an expert in the field of internal medicine, also testified. He served on the medical review panel about this incident and was of the opinion that it was not a breach of the standard of care for the defendants to transport Ms. Alphonse without oxygen from her hospital bed to the waiting ambulance. He agreed with the nurse that the oxygen was not necessary for the transport. He believed she was very close to death at the time of being transported. His best guess was that she had “hours, a day, not|1sdays, not weeks.” Dr. Genovese did not think that administering oxygen in this case would have made any difference, as it was his belief that Ms. Alphonse’s multiple terminal problems “actually killed the patient.”

Dr. Edmund Vinci, also an expert in internal medicine, testified by deposition. He served on the medical review panel with Dr. Genovese. He read the orders for transfer and they did not include oxygen. Dr. Vinci thought it was definitely reasonable that the defendants did not use oxygen in the transfer to the ambulance if the orders were not there. Dr. Vinci testified that this patient was terminal. The patient was going to die no matter what was done. Her death was imminent, meaning it could have happened at any time and oxygen was not going to correct any of Ms. Alphonse’s conditions. She was in septic shock and was already at the point of no return. Based on his opinion, he would have expected her to die that day.

All three medical experts, whose testimony or deposition appears of record, agreed that Ms. Alphonse’s condition was terminal. Thus, prior to any actions or inactions by the defendants in this matter and, in fact, prior to their summons and arrival, Ms. Alphonse had no chance of survival. Nothing in the record suggests that oxygen would have provided Ms. Alphonse a chance of survival that she otherwise would not have had. Even if oxygen might have secured for the patient a few hours of continuing life, all three experts agreed that Ms. Alphonse was in an unresponsive coma and never expected to regain consciousness. This is not the sort of “survival” anticipated by our jurisprudence. See Clark v. City of Shreveport, 31,407, 31,649, p. 4 (La.App. 2 Cir. 1/20/99), 726 So.2d 1042, 1044, writ denied, 99-0502 (La.4/1/99) 742 So.2d 872.

|1fiThus, even if we were to assume that the trial court had a reasonable basis to conclude that the applicable standard of care required of the defendants, Acadian, Pray and Dauzat, was established and that the evidence showed a breach of that standard, no reasonable basis exists to support a finding that Ms. Alphonse would have survived but for the alleged breach, or that Ms. Alphonse’s chance of survival was lost as a result of the alleged breach, as Ms. Alphonse incontrovertibly had no chance of survival. We find no evidence to support a conclusion that had oxygen been administered during the transport from the hospital bed to the ambulance, that Ms. Alphonse’s outcome would have been any different.

We conclude that the findings of the trial court are manifestly erroneous and the trial court was clearly wrong in finding that the alleged fault of the defendants caused Ms. Alphonse’s death or that Ms. Alphonse had a chance of survival, and that the alleged breach lessened that chance.

Ms. Alphonse had no chance of survival at the time of the alleged malpractice, as testified to by all three medical experts, nor have plaintiffs established that Ms. Alphonse would have survived but for the alleged negligence. Clearly, plaintiffs were required to establish one of these two distinct burdens of proof in order to recover damages for the death of Ms. Alphonse. They established neither. We need not therefore address defendants’ remaining assignments of error regarding damages. Nor is it necessary to address defendants’ peremptory exception of no right of action directed to the plaintiff, Succession of Catherine Alphonse.

|17C0NCLUSI0N

We find that the actions of defendants were not a substantial cause of Ms. Alphonse’s death, nor did they lessen her chance of survival, as Ms. Alphonse had no chance of survival. Accordingly, the judgment of the trial court on August 28, 2001, awarding each of the four plaintiffs $50,000.00, is reversed. Plaintiffs’ lawsuits are dismissed at their costs.

REVERSED AND RENDERED.

      . A written DNR order had been in her medical charts for over five years.

      . Lawrence Alphonse, Walter Alphonse and Cathy Faucheux are three of the children of Catherine Alphonse.

      . The panel additionally determined:
      It is clearly not a breach in the standard of care that the patient was not placed on oxygen for the brief period of transport from bedside to the ambulance unit.
      Notwithstanding whether oxygen was placed, the patient was irreversibly faced with imminent death due to multiple medical problems which by consensus of family and health care providers were no longer being addressed. The patient had septic shock, diabetic coma, terminal malnutrition, severe anemia, dehydration and acute renal failure, all of which were certain to lead to her imminent demise. None of these would have improved by the administration of oxygen.

      .The right to a trial by jury is available in a suit where a plaintiff’s cause of action exceeds $50,000.00. See LSA-C.C.P. art. 1732.

      . The trial court did not differentiate how its award was to be allocated among the four plaintiffs.

      . It is noted that the trial court never addressed the issue of whether the Succession of Catherine Alphonse was a proper party plaintiff in this matter.

      . Ambulance service is included in the definition of "health care provider.” See LSA-R.S. 40:1299.41A.(1).

      . Multi-disciplinary discharge instructions dated May 23, 1996, contained the notation "02 at 2LNC”, but the multi-disciplinary discharge instructions are not physician’s orders and Pray testified that she never saw the multi-disciplinaiy discharge instructions in the chart.

      . This testimony was corroborated by the documentation in the transport record filled out by Pray at the time of the transfer.

      . A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of "manifest error” or unless it is "clearly wrong.” Stobart v. State, Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993), citing Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).


text:
    Della McINTYRE v. THE ST. TAMMANY PARISH SHERIFF, Jack Strain, and the St. Tammany Parish Sheriff’s Department and St. Tammany Parish Deputies X, Y and Z, and XYZ Insurance Company, and the Town of Abita Springs and Abita Springs Deputies Roby Rogers and Deputy X, and ABC Insurance Company and the State of Louisiana, Department of Corrections, Probation Services, and Probation Officer, Lauren McElveen, and Rene C. Duffourc, III, M.D.
    No. 2002 CA 0700.
    Court of Appeal of Louisiana, First Circuit.
    March 28, 2003.

      Delbert G. Talley, Covington, for Plaintiff-Appellant, Della McIntyre.
    Marjorie G. O’Connor, Assistant Attorney General, Baton Rouge, for Defendants-Appellees, Lauren McElveen and the State of Louisiana, Through the Department of Public Safety and Corrections.
    Alan D. Ezkovich, Lisa A. Valley, New Orleans, for Defendant, The Town of Abita Springs.
    Before: CARTER, C.J., WHIPPLE, and CIACCIO, JJ.

      . Hon. Philip C. Ciaccio, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   2CARTER, C.J.

' This appeal arises out of a negligence action brought by Della McIntyre (plaintiff) against probation officer Lauren McElveen (McElveen) and the State of Louisiana, through the Department of Public Safety and Corrections (DPS). The action stems from the murder of plaintiffs two children by her ex-husband and probationer, Talmadge “Tommy” McIntyre (McIntyre). The trial court granted a motion for summary judgment in favor of McElveen and DPS, dismissing them from the lawsuit. In oral reasons assigned, the trial court explained that “McElveen’s alleged breach of duty” did not cause the death of plaintiffs children. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The facts are undisputed and are taken from plaintiffs and McElveen’s deposition testimony. The plaintiff and McIntyre were divorced in January 1998. The final divorce decree provided for joint custody of the couple’s two children, with McIntyre having visitation rights, and the plaintiff designated as the domiciliary parent. A few months after the divorce, the plaintiff obtained a restraining order against McIntyre prohibiting contact with her and the children. Plaintiff explained that she sought the restraining order against her ex-husband “because he was drinking” and “acting crazy,” she did not want him around her or the children, and her “son did not want to really be around him.” She also explained that she was concerned about McIntyre neglecting the children and mentally abusing them, but was not concerned about physical harm or abuse.

Despite the restraining order, McIntyre subsequently had contact with the children on a few occasions. The plaintiff never reported the violations of the restraining order to the court nor sought to have the custody/visitation order | .¡modified by the court. Plaintiff did, however, report the restraining order violations to several law enforcement officers. She also attempted to contact her ex-husband’s probation officer, McElveen, on several occasions to advise him that McIntyre was violating the conditions of his probation by drinking, using drugs, violating the restraining order she had against him, and possessing a gun. The plaintiff was unsuccessful each time she attempted to telephone McEl-veen. She left a voice message with her name and telephone number each time she called, but she did not leave any messages with specific information regarding her ex-husband’s activities or why she was calling. The last time the plaintiff attempted to contact McElveen was about one month before her ex-husband shot and killed her children. McElveen never returned the plaintiffs phone calls.

McElveen testified at his deposition that he supervised around one hundred probation cases even though he was only supposed to handle fifty cases. He took over the supervision of McIntyre’s probation and later met McIntyre for the first time in May 1998 when McIntyre was in court for an unrelated traffic violation. McIntyre told him at that initial meeting that he was having trouble visiting his children, because any time he was around them a charge would be filed against him. McEl-veen advised McIntyre to stay away from his ex-wife as much as possible. McEl-veen acknowledged that a note dated April 22, 1998, was in McIntyre’s file regarding a phone call from McIntyre to the probation office conveying that his ex-wife had filed stalking charges against him and that the sheriffs office was looking for him. At that time, McIntyre was advised (by McEl-veen’s supervisor) to stay away from his ex-wife and that the probation office would look into the matter. McElveen’s next | ¿notation in McIntyre’s probation file was regarding McIntyre’s arrest for first offense DWI on June 10, 1998. He also noted in the file the fact that McIntyre was not placed in jail for the DWI arrest. McElveen testified that he was required to prepare a written report advising the judge who had placed McIntyre on probation about the DWI arrest. However, McElveen did not write the report before McIntyre shot and killed his children on July 13,1998.

On July 10, 1998, McElveen finally spoke to McIntyre on the telephone after several days of each one leaving messages for the other. McElveen informed McIntyre that he was not turning in his monthly reports or paying his fees as required by the conditions of his probation. McIntyre told McElveen that he felt that his ex-wife had set him up for the DWI arrest because she knew he had been drinking at a certain bar, and she had probably tipped off the state police. McElveen testified that McIntyre never made any threats against his ex-wife or his children, and McElveen advised McIntyre to stay away from his ex-wife and to stay out of trouble.

On July 12, 1998, the plaintiff agreed to McIntyre’s request to let the children spend the night at his house. The plaintiff was working that night, and she testified that she had no reason, other than the restraining order, to prohibit the children from staying with McIntyre. The plaintiff stated that her ex-husband had never before threatened to harm the children, and she did not believe that he would ever hurt the children. McIntyre telephoned the plaintiff at her place of employment around 11:00 p.m. to request that she stop by his house to pick up her daughter. The plaintiff took her mother with her when she went to McIntyre’s house. When she arrived, the plaintiff testified that her daughter was asleep so she did not wake her. She also testified that her son asked her twice if he could come home. However, even though her son seemed “distraught,” he was not hurt, so the plaintiff left her son with his father. The plaintiff stated that McIntyre seemed angry that her mother had come along with her, but that he was not acting unusual. The plaintiff did not feel it was necessary to call the police for any reason at that time.

|RThe plaintiff left McIntyre’s house and went home to bed. She was awakened around 2:00 a.m. (on July 13th) by a telephone call from McIntyre. McIntyre told the plaintiff that he was going to kill the children. The plaintiff hung up, immediately called 911, and then called her mother who lived next door. The police arrived at the plaintiff s home and because McIntyre did not have a telephone at his house, everyone began the process of quickly trying to determine the location from where the call originated. McIntyre called several times during this time period. The plaintiff repeatedly asked her ex-husband where he was located, and she begged him not to hurt the children. McIntyre shot and killed the children while on the telephone with the plaintiffs mother. The police eventually apprehended McIntyre and located the children’s bodies at his sister’s house, about fifteen minutes away from his house.

In her lawsuit, the plaintiff alleged that she suffered the loss of her children and severe emotional and physical trauma due to the negligence of McElveen and DPS in failing to properly supervise McIntyre on probation. McElveen and DPS filed two different peremptory exceptions raising the objection of no cause of action, contending that they owed no duty to plaintiff. The exceptions were denied both times by the district court. This court and the supreme court both denied writs of review. The parties proceeded with discovery. McElveen and DPS then filed a motion for summary judgment contending that the pleadings and depositions of the plaintiff and McElveen revealed that there was no duty owed to the plaintiff and that DPS and McElveen were entitled to judgment as a matter of law on the issue of liability. After a hearing, the trial court granted the motion for summary judgment and dismissed the plaintiffs case against DPS and McElveen. The plaintiff appeals, arguing that there are genuine issues of material fact as to the existence of and scope of the duty owed by McElveen and DPS to the plaintiff, as well as the bad faith of McEl-veen and DPS.

IrLAW AND ARGUMENT

Law of the Case Doctrine

Initially, we reject the plaintiffs assertion that the law of the case doctrine precludes DPS and McElveen from raising the same issues in their motion for summary judgment as were denied in their prior peremptory exceptions raising the objection of no cause of action. The trial court’s ruling on the objection of no cause of action was an interlocutory judgment. LSA-C.C.P. art. 1841. DPS and McEl-veen may re-urge their arguments regarding the lack of a duty owed to the plaintiff subsequent to the denial of their peremptory exceptions. Likewise, the denial of a writ application for supervisory review of an interlocutory judgment does not bar reconsideration of, or a different conclusion on, the same question when an appeal is taken from a final judgment. Dupre v. Maynard, 96-1188, p. 3 (La.App. 1 Cir. 3/27/97), 692 So.2d 36, 38, writ denied, 97-1508 (La.9/26/97), 701 So.2d 986. Furthermore, the standard of review for a motion for summary judgment allows review of the evidence submitted in support of the motion in addition to the pleadings, whereas no evidence may be introduced at any time to support the objection that the petition fails to state a cause of action. See LSA-C.C.P. arts. 931 & 966. Thus, we find no merit to plaintiffs argument that the law of the case doctrine should be applied in this case.

Summary Judgment

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether a summary judgment is appropriate. J. Ray McDermott, Inc. v. Morrison, 96-2337, p. 9 (La.App. 1 Cir. 11/7/97), 705 So.2d 195, 202, writs denied, 97-3055, 709 So.2d 753, 97-3062 (La.2/13/98), 709 So.2d 753, 754. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions. The procedure is favored and shall be construed to accomplish these ends. LSA-C.C.P. art. 966(A)(2). A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to |7material fact, and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B).

The initial burden of proof is on the mover to show that no genuine issue of material fact exists. LSA-C.C.P. art. 966(C)(2). However, once the mover has made a prima facie showing that the motion should be granted, if the non-mover bears the burden of proof at trial on the issue before the court, the burden shifts to him to present evidence demonstrating that material factual issues remain. LSA-C.C.P. art. 966(C)(2); Paul v. Louisiana State Employees’ Group Benefit Program, 99-0897, p. 5 (La.App. 1 Cir. 5/12/00), 762 So.2d 136, 140. A court may grant summary judgment that is dispositive of a particular issue, theory of recovery, cause of action or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case. LSA-C.C.P. art. 966(E). The mover for summary judgment need not negate all essential elements of the adverse party’s claim; he must simply show an absence of factual support for one or more elements essential to the adverse party’s claim. LSA-C.C.P. art. 966(C)(2).

Duty-Risk Analysis

Under Louisiana jurisprudence, most negligence cases are resolved by employing a duty-risk analysis. Under this analysis, a determination of liability requires proof of five separate elements, all of which must be answered affirmatively for the plaintiff to recover: (1) proof that the defendant had a duty to conform his conduct to a specific standard of care (the duty element); (2) proof that the defendant failed to conform his conduct to the appropriate standard (the breach of duty element); (3) proof that the defendant’s substandard conduct was a cause-in-fact of the injuries (the cause-in-fact element); (4) proof that the defendant’s substandard conduct was a legal cause of the injuries (the scope of liability or scope of protection element); and (5) proof of actual damages (the damages element). See Mathieu v. Imperial Toy Corp., 94-0952, pp. 4-5 (La.11/30/94), 646 So.2d 318, 322. A negative answer to any of the inquiries of the duty-risk analysis results in a determination of no liability. Id. at 326. Accordingly, because we find that the scope of liability element is missing in this case, we need not examine the other duty-risk inquiries.

We find that the senseless and tragic murder of plaintiffs children by her ex-husband/probationer was a completely unforeseeable occurrence and not the result of any act or failure to act on the part of McElveen or the DPS. Plaintiff testified in her deposition that she had no indication that her ex-husband was going to harm her children. We cannot say that any action on the part of McElveen could have prevented McIntyre from shooting and killing his children. The record does not reveal any reason for McElveen to have foreseen the murders. Even if we assume that McElveen breached his duty to supervise McIntyre on probation, we do not believe that a sufficient connection has been established between McElveen’s alleged breach of duty and the murder of the plaintiffs children. A plaintiffs case must fail if the evidence shows only a possibility of a causative connection or leaves it to speculation or conjecture. See Todd v. State, through Dept. of Social Services, 96-3090, p. 16 (La.9/9/97), 699 So.2d 35, 44.

The duty of a probation officer to supervise the activities of a probationer does not include the obligation to take charge of or have custody of the probationer. Within the limits of the conditions of his probation, the probationer is free to come and go as he pleases, when and where he pleases. It is not the probation officer’s duty to follow each probationer to prevent him from harming others. Probation officers are not the guarantors or insurers of the safety of each and every person probationers may come into contact with. The purpose of probation is to serve the public by rehabilitating convicted criminals and returning them to productive positions in society. Successful probation requires assisting a probationer in making his own decisions and allowing some freedom of action. Each person who chances to come into contact with a probationer bears the risk |3that the rehabilitative effort will fail. See Martinez v. California, 444 U.S. 277, 281-283, 100 S.Ct. 553, 557-558, 62 L.Ed.2d 481 (1980).

In the case sub judice, even if McElveen had taken the necessary steps to notify the judge who placed McIntyre on probation that McIntyre had or was about to violate the conditions of his probation, there is no evidence that McIntyre would have been imprisoned or had his probation revoked on the date that he decided to take the fives of his children. Likewise, even if McElveen had exercised his discretion, pursuant to LSA-C.Cr.P. art. 899, to investigate and then to arrest McIntyre because he reasonably believed that McIntyre was about to violate a condition of his probation, there is no evidence that McIntyre would have been imprisoned after the arrest. After the arrest, McIntyre may have been able to post bail and obtain his freedom. See LSA-C.Cr.P. art. 899(C). McElveen would not have been involved again until possibly testifying at McIntyre’s revocation hearing. See LSA-C.Cr.P. art. 900, et seq. Not every probation violation will result in imprisonment or a revocation of probation. The trial judge has wide discretion when a condition of probation is violated. See LSA-C.Cr.P. art. 900. Thus, it is evident that regardless of McElveen’s and DPS’s alleged breaches of duty, McIntyre may have still been free to persuade his ex-wife to allow him to see his children and then make the decision to murder them on the night they were in his custody. The arrest of McIntyre or the notification to the court of a possible probation violation would not have prevented McIntyre from harming his children. To find otherwise would be pure speculation on our part.

A probation officer only has very limited control over a probationer who is free on probation. A probation officer who does not have the ability to control a probationer’s activities or his whereabouts twenty-four hours a day should not have liability imposed for the unanticipated criminal acts of the probationer. See Hartford Fire Ins. Co. v. State Dept. of Health & Human Resources, 413 So.2d 1360, 1361 (La.App. 1 Cir.1982). We find as a matter of law that the duty of a probation officer to assure the probationer’s compliance with the terms of his probation does not include the duty to protect the plaintiff from the harm caused here when her ex-husband/probationer murdered her children. This tragic incident was so unforeseeable and unpredictable that not even the plaintiff, who knew her ex-husband so well, envisioned or anticipated that it would occur. We cannot impose liability on the probation officer or the state under these circumstances.

CONCLUSION

For the above reasons, the judgment of the trial court dismissing plaintiffs claims against the probation officer, Lauren McElveen, and his employer, the State of Louisiana, through the Department of Public Safety and Corrections, is affirmed. Costs are assessed to the plaintiff-appellant, Della McIntyre.

AFFIRMED.

      . Plaintiff also named various law enforcement agencies and officers and a doctor as defendants; however, the motion for summary judgment on appeal pertains only to McElveen and DPS. Lauren McElveen’s name is spelled differently throughout the record. For consistency, we will use the spelling as it appears in the petition.

      . Although the restraining order, divorce decree and custody/visitation orders are not in the record, DPS and McElveen do not dispute the facts surrounding these documents as described by plaintiff in her deposition testimony.

      .There is no evidence in the record regarding the details of McIntyre’s conviction, sentence or probation other than McElveen’s deposition testimony that he thought McIntyre had been convicted of aggravated battery, that his sentence had been suspended, and that he had been placed on probation. The plaintiff testified in her deposition that she had never met her ex-husband’s probation officer and that she knew of McElveen’s name only because her ex-husband told her. The plaintiff also testified that she never saw a gun in McIntyre's possession or at his house, but he told her that he had a gun. McIntyre never threatened plaintiff or the children with the gun.

      . The allegations against DPS involved negligent training and supervision of McElveen. The lawsuit also contained numerous other allegations of negligence against other law enforcement agencies, officers and a doctor that are not at issue in this appeal.

      . Since neither party has raised immunity, we will decide the duty issue under the traditional duty-risk analysis. See Persilver v. Louisiana Dept. of Transp., 592 So.2d 1344, 1347 n. 2 (La.App. 1 Cir.1991).

      . We note that McElveen's knowledge of McIntyre’s arrest for first-offense DWI was not the equivalent of knowledge that McIntyre had engaged in criminal activity in violation of his probation. An arrest is not a conviction and is therefore not sufficient to establish a probation violation. State v. Sussmann, 374 So.2d 1256, 1257 n. 1 (La.1979).

      . In light of our holding, we pretermit discussion of the alleged bad faith of McElveen and DPS.