author: I,COOKS, Judge.

text:
    C.S.A. v. J.R.A.
    No. 02-803.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 27, 2002.

      Michael M. Evans, II, DeRidder, LA, for Appellant, Michael M. Evans, II.
    John Green, Jr., AAA Legal Services, Inc., Lake Charles, LA, for Appellee, John Green, Jr.
    Court composed of HENRY L. YELVERTON, SYLVIA R. COOKS and BILLIE C. WOODARD, Judges.
   I,COOKS, Judge.

STATEMENT OF THE CASE

This is a child custody dispute involving allegations of sexual abuse of an eight-year old child by her father, J.R.A., appellee.

J.R.A. and C.S.A. were divorced in September 2000. In August 2000, a joint custody order was signed which designated the mother, C.S.A., as the domiciliary parent of the minor child and assigned weekend visitation to J.R.A. based on his work schedule. Subsequently, J.R.A. filed a Rule alleging C.S.A. failed to comply with the weekend visitation schedule. A hearing was held on January 8, 2001.

C.S.A. testified at the January 8, 2001 hearing that she failed to comply with the court order because of her belief that the minor child had been sexually abused by her father, J.R.A. C.S.A. based her current suspicions on the child’s erratic and disturbing behavior when the child returned from J.R.A.’s home and on incidents of J.R.A.’s past inappropriate behavior with the minor child witnessed during the marriage. No physical examination was performed on the child at the time. When questioned regarding the child’s behavior, C.S.A. testified as follows:

When she came back she was distraught. She refused phone calls from him, she did not want to go to her visitation. When the next visitation came up, she got sick, she did not want to go. He would call, I would force her to talk on the phone; and she would hang up on him. And from there it just — I continued to make her go; but I had decisions as to some of the behavior that she displayed ... She would have severe temper tantrums, nightmares.
She would not talk to her father on the phone. She did not want to go see him. She was having nightmares, displaying behavior that confused me and upset me. Because I did not know what was wrong. I started seeking out counseling to see if it was just an anger issue or if there was something more to it.

At the hearing, C.S.A. related incidents of J.R.A.’s past inappropriate behavior with the minor child during the marriage. She testified as follows:

He allowed the child to follow him to the bathroom for bowel movements, to urinate. He would take showers with her and allow her to play with his penis. I walked in on this several times and had to 12remove her from the bathroom. Incidences of where she would be in the bathtub with him ... He has taken a bath with him, but I guess at the age, maybe, around three. We got in this huge fight three until ... he left the house, that she was way too old to be taking' a bath with him or sleeping with him nude ... And she has went to bed without underwear on, but she was wearing a t-shirt ... That I witnessed, was, I believe, the night before I had the Sheriffs Office evict him from our home; he took a bath with her ... They were taking a bath together ... she was six years old ...

C.S.A. felt this behavior was inappropriate and voiced her objection on several occasions.

We had numerous fights. But, I mean, she never said that anything more than that happened. When I would become aware of it, I would try and do the best I could to stop it. Remove her from the bed, take her out of the bathroom, try to distract her.

J.R.A.’s past inappropriate behavior with the minor child coupled with the child’s current errant behavior prompted C.S.A. to seek counseling for her child. C.S.A. contacted counselor, Lynn McDonald, who interviewed the minor child. Mr. McDonald contacted the OCS in Beauregard Parish to initiate an investigation of the sexual abuse allegations. Mr. McDonald was not called to testify at the January 8, 2001 hearing.

C.S.A. testified that her child was not responding to Mr. McDonald, and she sought help from another counselor, Anne Fournet, who also interviewed the child. Additionally, detective Vicki Hogan, sex crimes investigator for the Calcasieu Parish Sheriffs Department, was notified of C.S.A.’s suspicions. Neither Ms. Fournet nor Ms. Hogan were called to testify. The record indicates telephone contact between the trial judge and the OCS occurred, however, no reports were filed in the record and the OCS counselors were not called to testify.

Following the testimony, the trial court modified the earlier visitation order. The judge ordered supervised weekend visitation with the minor child at the home of J.R.A.’s mother, B.A. The court deferred a ruling on the sexual abuse issue until March 29, 2001 when investigations pertaining to the allegations were expected to be [..¡completed by the Beauregard and Cal-casieu Parish Sheriff Departments. Additionally, the court ordered the parties, including the minor child, to be examined by psychologist John C. Simoneaux, PhD.

On July 26, 2001 Dr. Simoneaux interviewed the minor child as well as C.S.A., J.R.A. and his new wife, A.A. The report concluded:

Based on these results, it appears that J.R.A. and A.A. clearly have the most potential to provide the necessary support, encouragement, and stability that L.A. needs at this time ... J.R.A. and his present wife are able to afford simply more logistical stability than what is available to C.S.A. They have a stable home, a short-lived, but apparently stable marriage, steady jobs, etc. C.S.A. has none of these attributes ... I believe that J.R.A. and A.A. should enjoy primary domiciliary custody.

On September 18, 2001, J.R.A. filed a Petition for Rule to Change Custody. The petition alleged the following:

There has been a change in circumstances since the previous judgment; namely that the Defendant has made numerous attempts at keeping the minor child away from the Petitioner, has made numerous false reports regarding Petitioner to various law enforcement officials, and has behaved in a manner which convinces the Petitioner that the Defendant has no desire to foster a relationship between the Petitioner and his minor child.
In addition, the court appointed psychologist has performed an examination of all parties and has concluded that it would be in the child’s best interest if Petitioner were named as the domiciliary parent.

On September 18, 2001, by stipulation of both parties, a Judgment was signed in which J.R.A. was again granted unsupervised visitation with the minor child for two weekends a month according to his work schedule. C.S.A. remained the domiciliary parent. However, the court set a hearing date on November 14, 2001 to consider J.R.A.’s petition for a change in custody. The parties were notified of the date in open court.

On the weekend of September 21-23, 2001, J.R.A. exercised unsupervised overnight visitation with the minor child. Shortly thereafter, C.S.A. noticed the child’s undergarments were soiled with blood and the child was complaining of blood pin her stool. This time, C.S.A. sought medical attention for her minor child.

On September 29, 2001, C.S.A. took L.A. to the emergency room of the DeQuincy Memorial Hospital. The emergency room physician, Dr. Jalah Joudel, performed a physical exam and made the following findings:

[TJhere is a small shin tear at the 12: o’clock and 6 o’clock of the rectum but not full thickness, as well as an abraded area to the 6 o’clock area of the vaginal orifice which is triangular in shape and about 2-3 mm long and 2 mm at the widest point which is at the orifice opening, there is no blood on exam at present, no hemorrhoids are present.

Based on his physical findings, Dr. Jou-del forwarded a copy of the report to the Sex Crimes unit of the Calcasieu Parish Sheriffs Office. On October 24, 2001, a vaginoscopy under general anaesthesia was performed by Dr. Scott Bergstedt who made the following findings:

She was noted to have a healed hymenal tear at six o’clock position which is compatible with vaginal penetration at some point in her life, but it is healed and seems to be an old injury. She was also noted to have some pinkish discharge coming from the cervical canal which would suggest some estrogen effect and probably considering her age and the amount of stress she is under at this time and the family situation, this could very well be explained as just early estrogen effect and could account for her bleeding.

(Emphasis added)

Between September and November 2001, C.S.A. failed to comply with the weekend visitation order of September 18, 2001 and hid the child from J.R.A.

The November 14, 2001 hearing on J.R.A.’s Petition for Rule to Change Custody was held. C.S.A. did not attend this hearing and her attorney, Ms. Oubre, filed a motion to withdraw as counsel of record for C.S.A. The trial court refused to grant the motion to withdraw and required Ms. Oubre to represent C.S.A. at the hearing. The trial court indicated C.S.A. had received notice of the hearing in open court in September.

The hearing proceeded without C.S.A. in attendance. J.R.A. called several lay | ¡^witnesses to testify on his behalf. He also introduced the report of Dr. Simo-neaux, medical records of DeQuincy Hospital which contained records of the emergency room examination by Dr. Jalah Joudel, medical records from the Pediatric Center and the transcript of testimony taken at the January 8, 2001 hearing. Ms. Oubre, representing C.S.A., presented no evidence and called no witnesses.

The trial court ruled in favor of J.R.A., granting him sole custody of the minor child. C.S.A. was granted supervised visitation of an unspecified nature. Additionally, the court issued a preliminary injunction enjoining C.S.A. from taking the minor child for any medical treatment without first obtaining the consent of the father. The trial court relied on findings of psychologist John Simoneaux stating:

I do want to refer, however, to the psychological evaluation that was done by Dr. Simoneaux. This was done on a joint agreement of the parties, whereby J.R.A., A.A., C.S.A. and L.A. were all examined. Dr. Simoneaux is probably the preeminent psychologist in this area, as far as I am concerned. He is very well respected among judges throughout the state....

The trial court ruled on the issue of sexual abuse stating:

[TJhere has been continued allegations of sexual abuse. In the DeQuincy Memorial Hospital record, a certified copy having been offered in the record, on the first page of that record, it’s handwritten by, apparently, the physician: ‘Mom said possible sexual abuse by father. No proof.
From the prior hearing I had reviewed a video tape where L.A. was interviewed and where it was mentioned at the very end of the interview that L.A. was saying that her father had done some improper sexual things. It appeared that, in all probability, L.A. was making this statement right at the end of the interview ... to make sure that the interviewer told her mother that she had done this.
The OCS has been called into this thing two or three times. Their reports back to me are that if there is any evidence of any sexual abuse, it has been so tainted by C.S.A. prompting of this child as to be absolutely worthless to them to support any of the allegations she’s made. Without evidence of sexual abuse-and I will have to say without any evidence of sexual abuse-the Court has to conclude that no such abuse occurred.

IfiThe trial court signed civil warrants to facilitate the location and delivery of the child to J.R.A. Judgment was signed in accordance with the ruling on November 26, 2001. C.S.A. did not appeal this judgment.

C.S.A. then secured the services of another attorney. On January 23, 2002, C.S.A. filed Motions to Set Aside the Award of Sole Custody and a Rule to Modify Custody based on newly discovered medical evidence, namely, the exam of Dr. Scott Bergstedt and the emergency room report of Dr. Jalah Joudel. C.S.A. also sought to introduce the testimony of Terry Jay Moody, Ph.D., a psychologist, who examined the child on September 15, 2001; Shanna McCarthy, Children’s Advocacy Center, the forensic evaluator, who prepared two videotaped sessions with the minor child; and Vicki Hogan, Sex Crimes Investigator, Calcasieu Parish Sheriffs Office. J.R.A. filed an Exception of No Cause of Action alleging that the evidence C.S.A. relied on could have been obtained and presented at the November 14, 2001 hearing. A hearing on all motions was held on January 31, 2002. C.S.A. again was not in attendance.

The trial judge refused to allow C.S.A’s attorney to call any witnesses or present the physical evidence in support of her contention that the minor child had been sexually abused by her father. C.S.A.’s attorney objected to the court’s ruling and sought to make a proffer of the evidence. The trial court refused to allow the proffer of testimony. The court continued the November 14, 2001 judgment giving sole custody of the minor child to her father and made the following observations:

As also previously stated by this Court, I believe in a previous hearing, the Beauregard Parish OCS has informed the Court that they have on two occasions looked into this matter and that because of the very apparent coaching of this little girl by C.S.A., they could make no determination that would indicate sexual abuse.
The Court has given C.S.A. every opportunity prior to this time to establish her allegations of sexual abuse, and I am quite sure that she will continue to try to do so no matter what this Court rules at this time.
So it’s the ruling of the Court that the sole custody of the child granted to J.R.A. in the ruling of November 14th will continue in effect. The Court will consider applications for supervised visitation by C.S.A.
|7I am deferring all contempt matters to a hearing on March the 14th. I will hear nothing further in this case at this time.... Motion for proffer is denied.

C.S.A. appeals from the January judgment continuing sole custody to J.R.A. and asserts the trial court erred in failing to allow her the opportunity, at the modification hearing, to present expert testimony and physical evidence and in further failing to allow her to proffer the evidence. For the reasons assigned below, we reverse the judgment of the court excluding relevant evidence and remand for a custody hearing in which all pertinent physical evidence and testimony is presented to the court and for a determination regarding appointment of counsel for the minor child.

■ LAW AND ARGUMENT

The rule for a change of custody was articulated in Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). When a trial court has made a considered decree of permanent custody the party seeking to change custody bears a heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child. A considered decree is one for which the court has received evidence regarding parental fitness to exercise child custody.

Placing a heavy burden of proof fosters an end to litigation and the possible disruption of the child’s living arrangements except for imperative reasons. Additionally, requiring a party to prove by “clear and convincing evidence” the need for a change in custody protects the parties from the “vexation and expense attending multiple unjustified lawsuits, conserves judicial resources, and fosters reliance on judicial actions by minimizing the ■ possibility of inconsistent decisions.” Bergeron, 492 So.2d at 1193.

^However, the heavy burden of proof only applies if the moving party was given a “full and fair opportunity to litigate” and the court received all available evidence pertinent to the issue of parental fitness to exercise custody. AEB v. JBE, 741 So.2d 189, 192 (La.App. 2 Cir.1999).

If the original custody arrangement was entered into by stipulation of the parties, it is not a considered decree, Scott v. Scott, 665 So.2d 760 (La.App. 1 Cir.1995), and the heavy burden of proof of Bergeron does not apply. Norris v. Norris, 604 So.2d 107 (La.App. 2 Cir.1992). The burden of proof also must be lessened when the court, for whatever reason, did not-receive all the pertinent evidence relating to the issue of parental fitness. However, the undisclosed evidence must be so substantial that, if considered at the time, it would have materially played a part in the court’s “best interest” determination. In such cases, the party seeking to modify an existing custody arrangement must still prove by a preponderance of the evidence that the modification proposed is in the best interest of the child. Scott v. Scott, 665 So.2d 760 (La.App. 1 Cir.1995).

Newly discovered physical evidence which tends to show that abuse has occurred is sufficient to establish a material change in circumstances. Norris v. Norris, 604 So.2d 107 (La.App. 2 Cir.1992). In Norris, the mother sought sole custody of the minor child and restricted/supervised visitation by the father. Ms. Norris based her request on newly discovered evidence of her former husband’s past sexual misconduct with her younger sister who was seven at the time. The sister, nineteen at the time of trial, testified she did not tell her sister of the abuse until recently. The trial court found the sister’s testimony more credible than the husband’s denial and granted sole custody to Ms. Norris and restricted/supervised visitation to the father.

We find the trial court erred in not allowing introduction of the physical |flevidence and other testimony at the hearing in January 2002 which was relevant to the issue of J.R.A.’s parental fitness to assume sole custody of the minor child. In Smith v. Smith, 615 So.2d 926 (La.App. 1 Cir.1993) a stipulated judgment designated the mother (Mrs. Bayhi) as primary custodial parent and granted Mr. Smith visitation on alternating weekends. Mr. Smith filed a rule for sole custody on the basis that Mrs. Bayhi moved to Indiana without his consent. Following a hearing, the trial court awarded sole custody to Mr. Smith finding Mrs. Bayhi was unjustified in moving to Indiana without advance notice to Mr. Smith and the move interfered with his right to visitation. The trial court excluded testimony concerning Mr. Smith’s verbal and physical abuse during the marriage as Mrs. Bayhi’s reason for moving without notice. The appellate court reversed the decision of the trial court awarding sole custody to the father and on the issue of exclusion of relevant evidence. The court stated:

The trial court should not exclude evidence in a custody modification proceeding if that evidence is relevant and material to an issue which the parties have not previously had a “full and fair opportunity to litigate”.... The trial court should have considered the proffered testimony of Mr. Smith (Proffer #1), testimony which was both material and relevant to the issue of whether Mrs. Bayhi was justified in moving without advance notice. This is not an issue which the parties had a previous opportunity to litigate, and the trial court’s exclusion of this evidence constitutes error as a matter of law.

Smith, 615 So.2d at 931-32.

The issue of the sexual abuse of the minor child was not fully and fairly litigated at the November 14, 2001 hearing be-cause the trial court did not have all of the available evidence relevant to this issue at the time of trial. C.S.A. was not present at the hearing nor did she assist her coun-sel in trial preparation. Her attorney filed a motion.to withdraw as counsel of record which was denied by the court. . At the trial, C.S.A.’s attorney did not introduce any physical evidence nor did she call any witnesses in support of the allegations of sexual abuse., While we recognize it was the responsibility of the mother to bring all available physical evidence to the | inattention of the court, we are not willing to penalize the child for the failure •of the mother to protect the child’s interest. This is a bitterly contested matter involving serious allegations and C.S.A.’s irresponsible behavior has thwarted the best efforts of the trial court to ascertain the truth concerning allegations of sexual abuse. However, in situations, such as the present one, where it becomes clear neither party is acting in the best interest of the child, the trial court may appoint counsel for the child to ensure the fair and full presentation of all relevant evidence.

La. R.S. 9:345(A) • provides ■ in relevant part:

In any child custody or visitation proceeding, the court, upon its own motion, upon motion of any parent or party, or upon motion of the child, may appoint an attorney to represent the child if, after a contradictory hearing, the court determines such appointment would be in the best interest of the child. In determining the best interest of the child, the court shall consider:
(1) Whether the child custody or visitation proceeding is exceptionally intense or protracted.
(B) The court shall appoint an attorney to represent the child if, in the contradictory hearing, any party presents a prima facie case that a parent or other person caring for the child has sexually, physically, or emotionally abused the child or knew or should have known that the child was being abused.

(Emphasis added).

Once the allegation of sexual abuse was made in January 2001, considering the contentious relationship between the parties and C.S.A.’s refusal to cooperate with the court or her own counsel, the court would have been justified in appointing independent counsel for the minor child in order to ensure that all the facts of the case were presented to the court. We do not find from the record this was done.

What is most remarkable about the November 14, 2001 hearing is not what is present on the record, but rather what is absent from it. While the trial court relied primarily on the report of July 26, 2001 by Dr. Simoneaux in making his determination, Dr. Simoneaux was not called to testify at the trial. There were no | ¶ representatives from OCS present in court and the record is devoid of OCS reports concerning this matter. The judge apparently was in telephone contact with OCS and relied on the facts told to him in private conversations with OCS to make his determinations regarding the validity of the charges against J.R.A. The investigating officers from the Beauregard and Calcasieu Sheriff Departments were not called as witnesses and no department reports were filed in evidence. References are made to videotaped sessions with the minor child, however, the video tapes are not found in the record. The trial judge referred to a statement made by Dr. Jalah Joudel, the emergency room physician, however, Dr. Joudel was not available for examination at trial concerning his physical findings.

The court did not have the report of Dr. Scott Bergstedt, who performed an extensive physical exam of the child. It is not clear whether this report, dated October 26, 2001, was obtained by C.S.A.’s attorney prior to the November hearing. In any case, neither Dr. Bergstedt’s testimony nor his report were considered by the court in making the determination. Additionally, the report of Dr. Terry Moody, the child’s treating psychologist, dated September 15, 2001, contradicts the report of Dr. Simoneaux; however, it too, was not considered nor was Dr. Moody called to testify.

Most significantly, we note the physical evidence in this case has never been fully explained, particularly the report of Dr. Scott Bergstedt. Moreover, the physical findings of Dr. Bergstedt that the child “was noted to have a healed hymenal tear at six o’clock position which is compatible with vaginal penetration at some point in her life” corroborates C.S.A.’s testimony in January 2001 that J.R.A. engaged in inappropriate behavior with his daughter during the marriage. This fact together with the fact that J.R.A. never specifically denied he engaged in inappropriate behavior with his daughter at the January or November hearings lend credence to C.S.A.’s allegations. C.S.A.’s observations regarding her child’s unusual behavior was _|j2Corroborated by Ms. Hyatt, the child’s third grade teacher, who testified as follows:

A. I observed her putting her hand inside the band of her skirt ... Her whole hand.
Q. Did she actually — Did you actually see her — see her reaching down to touch herself?
A. Yes.
Q. And was that going on in class?
A. That was going on in class.

Additionally, Dr. Moody interviewed the minor child and made the following recommendations:

Given L.A.’s allegations of her father’s sexual behavior toward her and her expressed anger toward her father, it would be advisable that she continues to have limited and supervised visitation with her father.
Given L.A.’s level of depression, she should remain with her mother at the time and not be exposed to a disruption in her regular routine. This youngster needs consistency and she needs to feel that the environment where she is living is safe and free from parental abuse or the potential for parental abuse.

We have examined the excluded evidence and find it sufficient, at the very least, to raise serious concerns about the child’s best interest and continued placement in the father’s sole custody.

It appears from the record, C.S.A.’s defiance of court orders and her unwillingness to cooperate with her own attorney tipped the scales in favor of a judgment awarding sole custody to J.R.A. However, there were no allegations that C.S.A. was an unfit or abusive mother and we find from the record, C.S.A.’s concerns are not bizarre, outrageous or without any factual basis. The choice she made to secret her daughter in defiance of the court’s order was motivated by a desire to protect her from harm. Her poor judgment was not so detrimental to the child’s best interest that she should be banned from ever bringing to the court’s attention material evidence, though belated in presentation, that directly speaks to the father’s continued fitness to act as sole custodian of the child. In Smith v. Smith 615 So.2d 926 (La.App. 1 Cir.1993), the appellate court reversed the judgment of the trial court | iaconcluding the trial court gave “undue weight” to the mother’s poor judgment. The court stated:

Custody should not be changed when to do so would punish a parent for past behavior when there is no proof of a detrimental effect on the children. Interference with visitation alone is not a sufficient reason to change custody absent a showing of a detrimental effect on the children. An award of custody is not a tool to regulate human behavior.

Smith, 615 So.2d at 934.

Neither are we convinced, by the record evidence, that C.S.A.’s judgment is so clouded by hatred of her ex-husband that her parental rights to seek future medical care for her daughter should be permanently revoked or conditioned on the father’s permission. No evidence was presented which might even remotely suggest C.S.A. somehow caused her daughter’s physical injuries — -the hymenal tear compatible with vaginal penetration which Dr. Bergstedt concluded was an “old injury” and the more recent rectum tear and abraded area in the vaginal orifice found by Dr. Jalah after the child’s unsupervised visit with the father.

DECREE

Based on the foregoing, we reverse the judgment of the trial court excluding relevant evidence and remand for a custody hearing and for a determination regarding appointment of independent counsel for the minor child. All costs are assigned to J.R.A.

REVERSED and REMANDED.


source: Caselaw Access Project

author: JjTHIBODEAUX, Judge. It SAUNDERS, J., | iWOODARD, J., liAMY, J.,

license: Public Domain

text:
    Harold PALMER, Plaintiff-Appellant, v. SCHOONER PETROLEUM SERVICES, Defendant-Appellee.
    No. 02-397.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 27, 2002.

      Gregory W. Belfour, Lake Charles, LA, for Plaintiff/Appellant: Harold Palmer.
    Henry H. LeBas, Todd A. Delcambre, Lafayette, LA, for Defendant/Appellee: Schooner Petroleum Services.
    Court composed of ULYSSES GENE THIBODEAUX, JOHN D. SAUNDERS, BILLIE C. WOODARD, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   JjTHIBODEAUX, Judge.

In this workers’ compensation case, plaintiff, Harold Palmer, appeals a judgment in favor of defendants, Schooner Petroleum Services and Eagle Pacific Insurance Company (Eagle Pacific), finding that he did not suffer an accident and consequent injury while in the course and scope of his employment with Schooner; that his workers’ compensation benefits were properly terminated because he committed fraud in violation of La.R.S. 23:1208; and, that he was not entitled to supplemental earnings benefits (SEB) because he was terminated from employment with Schooner for poor performance.

Schooner and Eagle Pacific answer Palmer’s appeal and contest the finding of the workers’ compensation judge (WCJ) that they owe a $2,000 penalty for their failure to pay an outstanding medical bill incurred by Palmer.

We reverse the finding of the WCJ that Palmer was not injured while in the course and scope of his employment. Further, we reverse the findings of the WCJ that Palmer violated La.R.S. 23:1208 and that Palmer is not entitled to SEBs. With respect to the WCJ’s award of penalties for the defendants’ failure to pay Palmer’s outstanding medical bill, we affirm.

I.

ISSUES

We shall consider:

(1) whether the WCJ committed error in finding that Palmer was not involved in an accident that caused an injury to his back while in the course and scope of his employment with Schooner;
(2) whether the WCJ erred in finding that Palmer violated the provisions of La.R.S. 23:1208 and has thereby forfeited workers’ compensation benefits | abecause his testimony was inconsistent with his activities as depicted in a surveillance video; and,
(3) whether he is not entitled to receive SEBs because he was fired for performing his work duties poorly.

Schooner and Eagle Pacific answered Palmer’s appeal. They entreat us to consider whether the trial court properly assessed penalties against them for the failure to pay one of Palmer’s outstanding medical bills since it found that Palmer did not suffer an accident and injury while in the course and scope of his employment with Schooner.

II.

FACTS

The parties do not dispute the fact that on June 4, 1998, Palmer was an employee of Schooner. Further, there is no dispute that Palmer continued to work for Schooner until he was terminated on September 30, 1998. The parties also agree that Palmer was paid $3,400 per month in salary during the time he worked for Schooner. The defendants agree that Palmer’s chiropractor bill of $170 was not timely paid and that Schooner had knowledge more than sixty days prior to trial that the bill was unpaid. However, the defendants did not stipulate that they are obligated to pay the bill. The parties are in dispute as to the events at the Schooner shop located in Scott, Louisiana on June 4,1998. Palmer contends that he injured his back while in the course and scope of his employment with Schooner on June 4, 1998. However, Schooner contends that an accident causing injury to Palmer’s back did not occur while Palmer was engaged in work for Schooner on June 4,1998.

Palmer testified that he began working for Schooner in September 1996 as a “sales and service person.” He explained that his job duties in that position entailed calling on customers to sell Schooner’s equipment and services as well as |3perform the services sold. The service part of his job involved “rig[ging] up the equipment, op-erat[ing] that equipment, then rig[ging] it down and bring[ing] it back to the shop.” Palmer testified that the equipment weighed between twenty-five to thirty pounds and up. He was also required to climb stairs. Palmer also testified that sometimes he was required to do physical manual labor that exceeded his job description. Palmer testified on June 4, 1998, he was injured while assisting his coworker, Jason Monk, in placing a valve that weighed approximately one hundred pounds on a pallet. They were not using a fork lift because one was not available. Palmer also testified that he and Monk did not wait for an available fork lift because his supervisor, Billy Knotts, wanted them to clean the shop as fast as possible. Palmer contends that while lifting the valve, he twisted his back and experienced bad pain. Palmer then walked into the office and told Ronald Hamilton what happened and went to the doctor. Palmer told Monk that he hurt his back, but did not “make a big deal” about his pain.

Hamilton testified that he did not remember Palmer telling him about the injury to his back on June 4, 1998. However, Hamilton also testified that he did write an accident report soon after the June 4, 1998 incident, when Palmer informed him his doctor told him not to lift anything heavy. Hamilton further testified that he did not ask Palmer’s co-worker, Monk, about Palmer’s accident until almost a year after June 4,1998, when Palmer filed a workers’ compensation claim.

Monk testified by deposition that no accident occurred. Monk’s deposition regarding the incident was not taken until June 23, 2000, two years after the incident.

Palmer testified that he left work early on June 4, 1998, after the injury and saw a chiropractor, Dr. William O. Ring, the next day. Dr. Ring told Palmer that) 4he had a back problem and that he should not lift anything, bend, stoop or twist because it would aggravate his condition. Palmer testified that when he returned to work he told the person in the office, Hamilton, about his injury and the restrictions placed on his activities by Dr. Ring. An accident report was written and Schooner limited Palmer’s activities. Hamilton testified that he was aware that after June 4, 1998, Palmer could not lift anything heavier than five pounds. At first, Palmer saw Dr. Ring three times per week, taking off from work to attend his treatments. After the first month of visits, Palmer saw Dr. Ring about once a month.

Palmer was also seen by Dr. Jerald Watts, an orthopaedic surgeon, at the request of Eagle Pacific. Dr. Watts’ diagnosis was essentially the same as that of Dr. Ring. Dr. Watts imposed the same physical restrictions on Palmer as Dr. Ring. Palmer also saw Dr. Clifton Shepard, who practiced orthopaedic surgery with Dr. Watts. Palmer testified that he was not asked by either Dr. Watts or Dr. Shepard about the type of work he performed for Schooner.

Palmer testified that on recommendation of Dr. Ring, he saw Dr. Roland Miller because he was still having trouble with his back. Dr. Miller told Palmer that he was not a candidate for surgery but that he did have a problem with his back. Dr. Miller recommended that Palmer see Dr. Ponder, a pain management specialist. Palmer testified that he saw Dr. Ponder several years ago for a problem he experienced with his elbow. When Palmer called Dr. Ponder he was told that since Dr. Ponder had become a pain management specialist that it would be better if Palmer saw Dr. Theresa Ritter.

Palmer testified that it took six months to get permission to see Dr. Ritter from Eagle Pacific. Palmer was eventually able to see Dr. Ritter in September 1999. jB Eagle Pacific did not pay for that visit. It was not until March 2000 that Eagle Pacific approved Palmer’s visits with Dr. Ritter.

On May 22, 1999, Palmer filed a disputed claim for workers’ compensation benefits. Trial was held on April 24, 2001, and continued until August 28, 2001. At the conclusion of the presentation of evidence on August 28, 2001, the case was held open for the submission of briefs by the parties. Palmer filed his post-trial brief on September 25, 2001, and on October 24, 2001, the WCJ rendered judgment in favor of the defendants with respect to the payment of workers’ compensation benefits. However, the WCJ awarded Palmer penalties in the amount of $2,000 for the defendants’ failure to pay an outstanding medical bill. It is from this judgment that on December 11, 2001, Palmer filed a motion for appeal. Schooner and Eagle Pacific answered Palmer’s appeal contesting the WCJ’s finding that they owe Palmer penalties and attorney fees for failing to pay the outstanding medical bill of Dr. Ring when the court found that Palmer was guilty of fraud pursuant to La.R.S. 23:1208.

III.

STANDARD OF REVIEW

The standard of review in a worker’s compensation hearing was set out in Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, pp. 7-8 (La.7/1/97), 696 So.2d 551, 556 as follows:

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of review. Smith v. Louisiana Dep’t of Corrections, 93-1305, p. 4 (La.2/28/94), 633 So.2d 129, 132; Freeman v. Poulon/Weed Eater, 93-1530, pp. 4-5 (La.1/14/94), 630 So.2d 733, 737-38. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Freeman, 93-1530 at p. 5, 630 So.2d at 737-38; Stobart v. State, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 882. Thus, “if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

However, in the present case the WCJ did not articulate the evidentiary facts she relied upon for her conclusion that an accident did not occur, nor did the WCJ articulate the facts she relied upon to conclude that Palmer did not suffer an injury while in the course and scope of his employment with Schooner. When a trial court’s reasons do not articulate the theory or the evidentiary facts upon which its conclusion is based, and the trial court’s findings of fact and reasons are not clearly implied by the record, deference is not owed. Bloxom v. Bloxom, 512 So.2d 839 (La.1987). The WCJ articulated reasons for only the La.R.S. 23:1208 violation and the refusal to award supplemental earnings benefits (SEB) to Palmer. Thus, with regard to the issue of whether an accident occurred and the issue of whether Palmer was injured while within the course and scope of his employment, we will accord no deference to the WCJ’s judgment and review the record de novo.

IV.

LAW AND DISCUSSION

Occurrence of Accident While in the Course and Scope of Employment

Palmer asserts that the WCJ committed error in finding that he failed to prove the occurrence of an accident while in the course and scope of his employment |7with Schooner, and that the injury to his back was causally related to his work accident.

In Bryan v. Allstate Timber Co., 98-840, pp. 3-4 (La.App. 3 Cir. 12/16/98); 724 So.2d 853, 855, this court discussed the law applicable to this case, stating:

La.R.S. 23:1031 requires a workers’ compensation claimant to initially establish “personal injury by accident out of and in the course of his employment.” Bruno v. Harbert International, Inc., 593 So.2d 357, 360 (La.1992). An accident for purposes of workers’ compensation law, is defined in La.R.S. 23:1021 as follows:
“Accident” means an unexpected or unforseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.
To recover workers’ compensation benefits, a claimant must establish by a preponderance of the evidence that an accident occurred on the job site and that an injury was sustained. Garner v. Sheats & Frazier, 95-39 (La.App. 3 Cir. 7/5/95); 663 So.2d 57. A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following . the alleged incident. Garner, 663 So.2d at 60. The evidence is viewed in a light most favorable to the claimant. When there is proof of an accident and attendant disability, without an intervening cause, it is presumed that the accident caused the disability.

In the present case, we find that the record shows that Palmer’s report of a work-related injury was consistent and plausible. Palmer testified that he and Monk were working together on June 4, 1998, the date of the accident, and that when he hurt his back he" informed Monk of the incident. ' On the other hand Monk testified, almost two years after the incident, that Palmer did not tell him about his back. |8 Defendants rely heavily on Monk’s testimony that Palmer did not inform him of an accident to conclude that no accident occurred. We find that reliance misplaced. First, Monk was not asked about Palmer’s accident until a substantial amount of time had passed since the incident. Second, an accident report was completed a day after the incident on June 5, 1998. Third, the record reflects that Palmer left work early on June 4, 1998, and saw a doctor for his back pain the next day. Fourth, when Palmer returned to work, his employer was aware that he was restricted to lifting no more than five pounds. Fifth, Palmer testified that when he hurt his back, he did not “make a big deal” about the accident or his back pain to Monk. Palmer simply stated that he hurt his back and he was going into the office to report the injury. Last, Monk testified that subsequent to June 4, 1998, Palmer frequently left work to attend doctors’ appointments.

In determining whether the worker has discharged his or her burden of proof, we accept as true a witness’ uncontradict-ed testimony, although the witness is a party, absent circumstances casting suspicion on the reliability of this testimony. The only evidence in the record contradicting Palmer’s testimony that an accident occurred while he was in the course and scope of his employment with Schooner on June 4, 1998, is that of his co-worker, Monk. As we previously noted, Monk’s testimony is unreliable on this issue since he was not asked about Palmer’s accident until almost two years after the incident, especially given the evidence of the accident report and Palmer’s doctor visits soon after the incident in June 1998, as well as the fact that Palmer said that he did not “make a big deal” about hurting his back. Palmer’s version of the events surrounding his accident is reasonably credible, and his medical records sufficiently corroborate that he was injured on June 4,1998, | ¡¡while in the course and scope of his employment. Accordingly, the WCJ’s finding that claimant did not suffer an on-the-job injury is in error and reversed.

Fraud in Violation of La.R.S. 23:1208

Louisiana Revised Statutes 23:1208 provides in pertinent part as follows:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

At the trial of this matter, the defendants argued that Palmer exaggerated and distorted the details regarding his injury resulting in Palmer making willful and false statements for the purpose of obtaining benefits. To the contrary, Palmer asserts that he did not willfully make false statements or misrepresentations to obtain workers’ compensation benefits. At trial, Palmer testified that he could walk, sit, stoop, and bend but only for a limited amount of time. Schooner and Eagle Pacific rely on video surveillance taken of Palmer’s activities on fourteen different days to prove their claim that Palmer lied about his disabilities. Essentially, the defendants assert that Palmer’s testimony about his back problems and disabilities is inconsistent with what is shown in the video surveillance tape recordings. However, mere contradiction between Palmer’s testimony and the videotape recordings does not necessarily mean a denial of benefits due to a violation of La.R.S. 23:1208. Pursuant to Resweber v. Haroil Constr. Co., 94-2708 (La.9/5/95); 660 So.2d 7, there must be a false statement or statements willfully made for the purpose of obtaining workers’ compensation benefits.

in We have reviewed the videotapes in this case. Rather than supporting a willful inconsistency between Palmer’s account of his injury and his activities, the videotapes confirm that Palmer does little or no strenuous work. Most of the videotapes show Palmer driving around in his pickup truck, fishing from the intracoastal canal bridge and alternately leaning on a bridge railing and standing upright. Palmer is also shown carrying a small package in his hand and, on one occasion, leaving a grocery store carrying a very small bag. He is also shown pumping gasoline into his truck. On another video, Palmer is shown walking rather slowly and somewhat tentatively on a sidewalk. We find that this supports Palmer’s position that he could not engage in walking, stooping, sitting and bending activities for an extended length of time. The only activities shown on the videotape that might be considered strenuous is Palmer’s use of a hydraulic jack to jack up a car while lying on the ground, and Palmer shown untying a boat from a trailer hitch and helping to hook a small tractor/four wheeler to a trailer. Palmer testified that he has good and bad days. He further testified that when he does anything beyond his physical limitations, he suffers great pain thereafter. Moreover, Palmer did not imply he was unable to do any activity whatsoever. Thus, we find the videotapes unconvincing and not illustrative of the type of fraudulent activity contemplated by La.R.S. 23:1208. While there may have been some variance between Palmer’s testimony and the videotapes, the variance was not sufficient to warrant a finding of fraud. Therefore, the WCJ’s finding that Palmer committed fraud in violation of La.R.S. 23:1208 was in error.

Supplemental Earnings Benefits

Schooner and Eagle Pacific contend that Palmer is not entitled to SEBs because Schooner offered him “a post-accident job that allowed him to earn at least 1^90% of his pre-accident wages.” Palmer does not contest the fact that he continued to work at Schooner after the June 4, 1998, accident in a light duty position at the same wage rate he earned before the accident until he was terminated on September 30, 1998. Palmer contends that he was terminated due to lack of available work at Schooner. On the other hand, the defendants contend that Palmer was fired from Schooner due to his substandard job performance.

In Allen v. City of Shreveport, 618 So.2d 386, 388 (La.1993), the supreme court summarized the purpose of SEBs as follows:

Supplemental earnings benefits were established in 1983 as a method of replacement of lost wages for partially disabled employees. The benefits are designed to replace lost earning capacity of workers who do not fall under the definition of total disability. When an injured employee is able to engage in a gainful occupation, but because of his work-related disability is unable to earn wages at the level he was earning prior to his injury, he is classified as partially disabled. And when the partial disability reaches the level that the employee is unable to earn wages equal to ninety percent or more of the wages he was earning at the time of the injury, he is entitled to supplemental earnings benefits, calculated according to a formula relating to his pre-injury wages and the wages he ‘is able to earn’ in any employment or self-employment after the injury. La.Rev.Stat. 23:1221(3)(a). (Footnote omitted).

Integral to an employee’s claim for SEBs is his proof by a preponderance of the evidence that he is disabled due to a work-related injury that rendered him unable to earn ninety percent of his pre-injury wages. “In determining if an injured employee has made out a prima facie case of entitlement to supplemental earnings benefits, the trial court may and should take into account all those factors which might bear on an employee’s ability to earn a wage.” Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1007 (La.1989). La.R.S. 23:1221(3)(a). Once the employee seeking SEB establishes his pri-ma facie case, the burden shifts to the employer to show that the employee is physically capable of work and that the work was offered |iy.or available in the employee’s or employer’s community or reasonable geographic region. La.R.S. 23:1221(3)(c)(i). If the employer meets this burden of proof, then the employee must show by clear and convincing evidence, unaided by any presumption of disability, that he is unable to perform the employment offered or available solely as a consequence of substantial pain. La.R.S. 23:1221(3) (c) (ii); Moore v. Sanderson Farms, Inc., 95-2042, p. 8 (La.App. 1st Cir.5/10/96); 674 So.2d 478, 483, writ denied, 96-1399 (La.9/13/96); 679 So.2d 106. Essentially, Schooner argues that it met its burden of proof because it offered Palmer available work in the office where Palmer worked prior to his accident, and that termination of Palmer for his substandard work precludes the award of SEBs under La.R.S. 23:1221. We disagree.

Contrary to Schooner’s above argument, it is a claimant’s refusal to accept employment that fits within his abilities and/or disabilities which is made available to him that precludes an award of SEBs. In other words, “[t]he SEB statute does not permit a claimant to choose not to work and still collect SEB when he is physically able to work and jobs are available.” Blanchard v. Federal Express Corp., 95-0349, p. 13 (La.App. 1 Cir. 11/9/95); 665 So.2d 11, 13. There is no evidence in the record that Palmer refused the work offered to him; in fact, he worked with Schooner until Schooner terminated him. Termination does not destroy one’s entitlement to SEB. See generally, Braud v. First Nat’l Bank of Gonzales, 98-2106 (La.App. 1 Cir. 6/23/02); 763 So.2d 829 (where a bank employee, who suffered severe mental trauma after a bank robbery and who was later terminated due to poor performance, was not determined to be ineligible of SEB because of her termination).

To hold that an employee’s termination destroys an employee injured on the job’s entitlement to SEB would provide incentive for employers to allow injured employees to return to work and thereafter terminate them to avoid paying SEB. | ^Palmer’s injuries prevented him from doing heavy duty manual labor, the type of work he performed for Schooner before his June 4, 1998, accident. The medical records of Drs. Miller, Blanda and Ritter support Palmer’s inability to engage in heavy manual labor. Dr. Ritter’s records state that Palmer is limited to sedentary work release with a maximum lifting weight of ten pounds. Palmer’s functional capacity evaluation of June 27 and 28, 2000, notes that Palmer would be able to do light to medium duty work. After Palmer’s termination on September 30, 1998 through December 2000, he did not work for wages. Palmer was able to obtain employment with Pateo as a dispatcher earning $150 per day. His work schedule is seven days on and seven days off. His annual income with Pateo is approximately $26,300. Palmer’s base rate at Schooner was $48,000 per year. Thus, the record amply reflects that he is unable to earn at least ninety percent of his pre-injury wages.

It is unnecessary to reach the issue of the refusal of the WCJ to allow evidence of Palmer’s proper work performance to rebut the evidence of Ms poor work performance leading up to his termination that was submitted at trial by Schooner. The WCJ’s factual determination of poor work performance is manifestly erroneous. The record simply does not reasonably substantiate a degree of poor work performance that would be tantamount to Palmer’s refusal to work and a concomitant loss of SEB. The conduct of Mr. Palmer of which Schooner complains does not reach the level of egregious behavior evidenced in McKenzie v. Evans Quality Temporaries, 99-518 (La.App. 5 Cir. 10/26/99); 746 So.2d 163 (where the claimant refused physical therapy, had been told by his physicians to return to light-duty work, did not accept the company’s offer of light-duty work until three months after the accident, worked for two weeks in that position, left and never returned); Degrasse v. Elevating Boats, Inc., 98-1406 (La.App. 4 Cir. 3/10/99); 740 So.2d 660, writ denied, 99-1807 (La.10/15/99); 748 So.2d 1147 (where employee injured himself and never returned to work and refused to take a required drug test); Fusilier v. Slick Const. Co., 94-11 (La.App. 3 Cir. 6/1/94); 640 So.2d 788 (where employee failed to attempt to do light-duty work offered by his employer); and Blanchard v. Federal Exp. Corp. (where employee refused to do any available work because it interfered with his church duties). Therefore, we find that Palmer is entitled to SEB.

Penalties

The WCJ awarded Palmer penalties in the amount of $2,000 because the defendants failed to pay an outstanding medical bill associated with Palmer’s injury to his back. Schooner answered Palmer’s appeal asserting that the WCJ erred in awarding penalties when she found that Palmer suffered no on-the-job accident and injury. Schooner does not dispute the amount of the outstanding medical bill, nor that it failed to pay the bill.

As we noted above, we find that Palmer did suffer an injury while in the course and scope of his employment with Schooner. “An employer may escape liability for its delays in providing medical benefits if: (1) its nonpayment stemmed from conditions over which the employer had no control, or (2) the employer reasonably controverted the employee’s right to such compensation or medical benefits. La.R.S. 23:1201(F)(2).” Thibodeaux v. Sunland Const., 00-1472, p. 7 (La.App. 3 Cir. 4/4/01); 782 So.2d 1203, 1208. The determination whether an employer should be cast with penalties and. attorney fees in a workers’ compensation case is essentially a question of fact and a WCJ’s finding shall not be disturbed absent manifest error. Foster v. Liberty Rice Mill, 96-438 (La.App. 3 Cir. 12/11/96); 690 So.2d 792. The WCJ’s determination that Schooner owed penalties to Palmer for its failure to pay the outstanding medical bill of Dr. Ring is inconsistent with the WCJ’s |, .¡finding that Palmer did not sustain an injury due to an on-the-job accident. However, after a thorough reading of the record and taking into consideration our finding that Palmer sustained an injury as a result of a work-related accident, we find that the WCJ was correct in assessing the defendants with a $2,000 penalty although not in accord with her rulings on the other issues in this case.

V.

CONCLUSION

For the reasons assigned, the judgment of the workers’ compensation judge awarding the plaintiff, Harold Palmer, $2,000 in penalties against the defendants, Schooner Petroleum Services and Eagle Pacific Insurance Company, is affirmed. The judg-merit of the workers’ compensation judge is reversed as to the occurrence of an accident while in the course and scope of Harold Palmer’s employment and his consequent back injury, her finding that Harold Palmer violated La.R.S. 23:1208 and her failure to award Harold Palmer supplemental earnings benefits.

Costs of this appeal are assessed against Schooner Petroleum Services and Eagle Pacific Insurance Company.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

SAUNDERS, J., concurs and assigns reasons.

WOODARD, J., concurs and assigns written reasons.

AMY, J., dissents and assigns written reasons.

It SAUNDERS, J.,

concurring.

I agree with the majority opinion in this case on all but one matter. I disagree with the determination that our review of the trial judge’s ruling should be de novo. The majority relies on the case of Bloxom v. Bloxom, 512 So.2d 839 (La.1987), for the proposition that the usual discretion afforded to a trial court’s determination can be disregarded where the trial court provides no reasons for its ruling or where the reasons provided do not articulate the theory or the evidentiary facts upon which its conclusion is based. On a closer reading of Bloxom, however, it is clear such disregard of the usual discretion afforded to the trial court’s ruling also requires that we be unable to infer from the trial court’s reasons and the record the theory under which the trial court based its conclusions. Here, the trial court’s reasons can be inferred from the record and evidence presented at trial. Therefore, I believe we are restricted to a manifest error/clearly wrong standard of review of the trial court’s ruling. However, in my opinion there is sufficient evidence to justify the majorities findings, even under a manifest error review.

For the reasons stated above, I concur with the majority opinion of the court.

| iWOODARD, J.,

concurring.

I respectfully concur in the majority’s opinion as a whole. In particular, I will address its decision to do a de novo review which I believe to be improper.

For its authority to conduct this review, the majority relies on its interpretation of Bloxom, our supreme court’s decision in 1987. Judge Thibodeaux writes:

When a trial court’s reasons do not articulate the theory or the evidentiary facts upon which its conclusion is based, and the trial court’s findings of fact and reasons are not clearly implied by the record, deference is not owed. Bloxom v. Bloxom, 512 So.2d 839 (La.1987). The WCJ articulated reasons for only the La.R.S. 23:1208 violation and the refusal to award supplemental earnings benefits (SEB) to Palmer. Thus, with regard to the issue of whether an accident occurred and the issue of whether Palmer was injured while within the course and scope of his employment, we will accord no deference to the WCJ’s judgment and review the record de novo.

(Emphasis added.)

| ¡When one shepardizes this case, one finds Leal v. Dubois, in which our supreme court expressly clarified that the above interpretation is not entirely what it meant by its holding in Bloxom:

It is well settled that the district court’s finding of fact may not be set aside on appeal in the absence of manifest error or unless it is clearly wrong. Stobart v. State Through DOTD. Even though an appellate court may feel its own evaluations and inferences are more reasonable than those of the factfinder, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. An appellate court should not substitute its opinion for the conclusions made by the district court, which is in a unique position to see and hear the witnesses as they testify. The trier of fact is not disadvantaged by the review of a cold record and is in a superior position to observe the nuances of demeanor evidence not revealed in a record.
While the court of appeal acknowledged this standard of review, it relied on our opinion in Bloxom v. Bloxom for the proposition that appellate courts may afford less deference to the district court’s factual findings when the lower court fails to articulate the theory or evidentiary basis for its conclusions. The court of appeal reasoned that because the district court did not explain its reasons for not attributing plaintiffs injuries to the accident, it was not required to give deference to the district court’s findings.
We find the court of appeal misinterpreted our decision in Bloxom. In that decision, we carefully explained that deference should be accorded to the trial court’s decision, even if that decision is of less than ideal clarity, if the trial court’s path may be reasonably discerned, such as when its findings, reasons and exercise of discretion are necessarily and clearly implied by the record.

(Citations omitted. Emphasis added.)

While the trial court did not articulate reasons for its judgment regarding the “accident,” its “path may be reasonably discerned, such as when its findings, reasons and exercise of discretion are necessarily and clearly implied by the record.” In the instant case, the co-employee, Mr. Monk, stated that, contrary to Mr. Palmer’s assertion, no accident occurred and that Mr. Palmer did not tell him that he was hurt. The fact that Mr. Monk was not asked about this until almost a year after |3the alleged accident does not make his memory inherently flawed, as the majority suggests. Thus, the trial court could have relied on this testimony to find no accident; its path of making the finding can readily be gleaned from the record. Thus, overturning its factual determination requires a manifest error review.

Notwithstanding, under that standard, the totality of the evidence is so overwhelmingly in favor of Mr. Palmer’s claim that he had a work-related aggravation of a previous injury that it was unreasonable for the WCJ to make a contrary finding. Since there was not sufficient evidence in the record to uphold the WCJ’s decision, it was manifestly erroneous.

liAMY, J.,

dissenting.

I respectfully dissent from the majority opinion. I conclude that an affirmation is warranted as to the workers’ compensation judge’s determination that the claimant failed to prove that a compensable accident occurred. The determination was neees-sarily based on credibility evaluations, namely, that of the claimant’s testimony. Due to the finding that no accident occurred, any remaining issues regarding entitlement to supplemental earnings benefits and the findings regarding the La.R.S. 23:1208 defense are moot. I do, however, find the $2000 award made for late payment of the chiropractic bill erroneous. As the workers’ compensation judge determined that an accident did not occur, the obligation to provide timely payment of medical expenses never arose. Accordingly, I find reversal of this portion of the ruling appropriate.

      . 00-1285 (La.10/13/00); 769 So.2d 1182.

      . See Daigrepont v, Grand Casino Avoyelles, 96-1170 (La.App. 3 Cir. 3/5/97); 692 So.2d 518.


author: I,SOL GOTHARD, Judge.

text:
    SUNSET INSURANCE COMPANY v. John G. GOMILA, Jr., et al.
    No. 02-CA-633.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2002.
    Rehearing Denied Jan. 27, 2003.

      Michael C. Palmintier, Degravelles, Pal-mintier, Holthaus & Fruge) Baton Rouge, LA, for Plaintiff/Appellant.
    Daniel Lund, G. Dali Kammer, Montgomery, Barnett, Brown, Read, Hammond & Muniz, New Orleans, LA, for Defendants/Appellees.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD, and CLARENCE E. McMANUS.
   I,SOL GOTHARD, Judge.

In this legal malpractice action plaintiff, Sunset Insurance Company, Inc. (Sunset), appeals a judgment in favor of defendants, John G. Gomila, Jr. and Attorneys’ Liability Assurance Society, Inc., that dismissed plaintiffs claim. For reasons that follow, we affirm.

This matter has been before this court previously in Sunset Ins. Co. v. Gomila, 99-560 (La.App. 5 Cir. 2/29/00), 757 So.2d 82. In that opinion, Sunset appealed a judgment of the trial court that granted a defense motion for summary judgment. A majority of this court affirmed the trial court after agreeing that no material issue of fact remained to be decided and the defendant was entitled to judgment as a matter of law. The Supreme Court reversed the opinion of this court, finding material issues of fact remaining to be decided and remanded the matter to the trial court for further proceedings. After the remand the trial court conducted a jury trial on the merits. The jury found that the conduct of John G. Gomila, Jr. was not negligent in his representation of Sunset. It is that judgment that forms the basis of this appeal.

laThe original legal malpractice action was filed as a result of Gomila’s representation of Sunset in Comberrel v. Basford, 550 So.2d 1356 (La.App, 5 Cir.1989); writ denied, 556 So.2d 285 (La.1990). The facts of that case and the questions at issue were set forth in our first opinion in this matter as follows:

This dispute arises from actions taken by Gomila as the attorney for Sunset in the case of Comberrel v. Basford. In that case, Comberrel was killed in an automobile accident while working for LP & L and driving a company vehicle. The vehicle was leased from and owned by the Commonwealth Plan. Commonwealth was a wholly owned subsidiary of Bankers Leasing Corporation. Bankers was a wholly owned subsidiary of the Southern Pacific Railway Company.

The defendant in Comberrel was uninsured, so the Comberrels sued the alleged UM carrier for Commonwealth, Sunset Insurance Company.

Sunset is an insurance company that is a wholly owned subsidiary of Southern Pacific. It was created specifically to meet the needs of Southern Pacific’s subsidiary companies, including Bankers. Policy CAGL-003 was issued by Sunset to Bankers and was originally intended to cover only six to eight corporate automobiles owned by Commonwealth, but there were ambiguities in the policy which led to a dispute in coverage.

The underwriting instructions for Policy CAGL-003 called for the inclusion of all subsidiaries of Bankers, including Commonwealth, as named insureds on the policy. The policy only listed Bankers as an insured. Also, the policy was to be limited to only six to eight corporate automobiles. This restriction was left out of the policy altogether.

Gomila was hired as defense counsel for Sunset in the Comberrel case. Before trial began, Gomila stipulated that Commonwealth was a named insured on the Sunset policy. At the conclusion of the trial, Sunset was cast in judgment for its limits under the policy ($1,000,-000.00).

On December 1, 1989, Sunset filed suit against Gomila alleging legal malpractice. Sunset alleged that the stipulation of coverage entered into by Gomi-la was false and was not authorized by Sunset. Gomila alleged that he was authorized to make the stipulation. He further alleged that even if the stipulation had not been made, the same outcome would have resulted and Sunset was not harmed by his actions. Sunset Insurance Co. v. Gomila, supra, 757 So.2d at 83-84.

As shown by the above factual synopsis, the central controversy in the legal malpractice action revolves around the stipulation entered into by Gomila on behalf of Sunset in the Comberrel v. Basford case. The stipulation, which ^established Commonwealth Plan as a named insured under the Sunset policy, was used as a basis for the finding of liability against Sunset in the Comberrel matter. Sunset maintains that the stipulation was neither authorized by, nor known to, any person in the Sunset organization. That stipulation and the result in the Comberrel case led to the filing of the action for legal malpractice that forms the basis of the instant matter.

In brief to this court, Sunset assigns two errors. In the first, Sunset argues the trial court erred in not allowing it to introduce expert testimony to explain the complex legal issues to the jury. Plaintiffs sought to introduce the testimony of Ralph S. Hubbard, as an expert in the area of insurance coverage defense. After the trial court’s ruling not to allow the testimony of Mr. Hubbard, Sunset proffered the testimony. Sunset argues the testimony was necessary to show the standard of care, the fault in having entered into the stipulation, and the fault in having failed to advise the client.

The record shows that plaintiff filed a motion in limine before trial seeking to exclude testimony from defense’s expert witness, Ralph Hubbard, on the grounds that his testimony would be irrelevant and unhelpful to the jury. After considering the arguments of counsel in open court and memoranda, the trial court found that the jury “would not be aided or assisted in reaching its decision by the testimony of expert witnesses in this case.” Accordingly, on August 14, 2001, the court rendered a judgment excluding all expert testimony from this trial.

LSA-C.C.E. art. 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Expert testimony is admissible in legal malpractice cases to establish the standard of care exercised by attorneys in the locality. In certain cases, the opinion | f¡of experts may be essential to prove the standard of care an attorney must meet. Morgan v. Campbell, Campbell & Johnson, 561 So.2d 926, 929 (La.App. 2 Cir. 1990). In Contractors Supply & EQ-Orleans v. J. Caldarera & Co., Inc., 98-1010 (La.App. 5 Cir. 3/30/99) 734 So.2d 755, at 760, this court stated:

In reviewing the decision of a trial court in qualifying a witness as an expert, courts typically place the burden on the party offering the witness as an expert and consider that the decision to accept or reject the offer rests within the sound discretion of the trial court. The trial court’s function is to determine that all expert testimony which is admitted into evidence is both reliable and relevant. Furthermore, the refusal of the trial court to receive such evidence will rarely, if ever, provide grounds for reversal, (citations omitted)

In the instant matter, it is clear from the arguments made by counsel that the court found there is no standard of practice when the discussion concerns the approach to a case. The degree of aggressiveness, and the decision not to file a motion for summary judgment are professional decisions which may vary among attorneys, and do not constitute a standard of practice. We find no abuse of discretion or manifest error in that ruling. Further, we note that the entire case focused on whether the defendant had permission of plaintiff to sign an admission. That is a purely factual issue for the trier of fact. We believe Mr. Hubbard’s testimony would not assist the jury in making that decision. Thus, we find no merit in this assignment of error.

In the second assignment, Sunset argues that the jury finding of no negligence or fault on the part of Mr. Gomila is error. Sunset alleges that Commonwealth is not a named insured on the policy and there is no evidence, other than Mr. Gomi-la’s testimony, that Sunset authorized the stipulation that amounted to an admission of insurance coverage.

At trial the deposition of William Sewall, who was the senior vice-president of Bankers Leasing and Financial Corporation, the parent company of Commonwealth, was read into the record. Mr. Sewall testified that the company |fihired Mr. Gomila to represent it in the Comberrel case. During the deposition, Mr. Sewall was shown a letter sent to him from Mr. Gomila dated August 21, 1984 in which Mr. Gomila refers to a previous conversation regarding the instruction sheet provided by counsel for Comberrel, and the named insureds in the 1983-84 renewal policy. Although Mr. Sewall had no specific recollection of the conversation, he stated that he had no reason to believe that Mr. Gomila is incorrect in saying the discussion revolved around those instruction sheets and the listing of named insureds. Mr. Sewall further testified that Mr. Gomila was given permission to produce the Sunset policy to the opposition in the Comberrel case.

Curt Schultz, an attorney who joined the Bankers Group in November of 1984, was given.the primary responsibility of monitoring the Comberrel case. Mr. Schultz also testified by deposition. He sent Mr. Gomila a certified copy of the policy to be produced pursuant to a subpoena duces tecum. However, both Mr. Sewall and Mr. Schultz testified that they relied on Mr. Gomila for advice on what the subpoena specifically required.

After the production of the Sunset policy, the plaintiffs in the Comberrel case added Sunset as a defendant, and Mr. Gomila was hired to represent Sunset in the litigation.

Defendant, John Gomila, testified at trial that he had a discussion with Mr. Sewall and Mr. Taggart, who represented Louisiana Power & Light, regarding the correct response to a subpoena duces tecum served by the plaintiff in the Comberrel case. Mr. Gomila stated he informed the other two men that if a policy covers Commonwealth, it must be produced. There seemed to be some inconsistencies between the policies as to the subsidiaries of Bankers listed as insureds. Therefore, Mr. Gomila asked for clarification of the situation. The instruction sheets for issuance of the Sunset policy were given to-Mr. Gomila. They showed that Sunset was to issue a policy covering Bankers and a list of its ^subsidiaries,' including Commonwealth. After further discussion, Mr. Sewall authorized Mr. Gomila to release the Sunset policy to plaintiffs. At that point, there was no dispute that the policy covered Commonwealth. The binders specifically purported to extend coverage to Bankers Leasing and all subsidiaries.

After the policies were produced, Sunset was added as a defendant and Mr. Gomila was retained to protect Sunset’s interest in the suit.' Mr. Gomila had conversations with John Edwards, who represented Sunset regarding the Comberrel suit. Mr. Gomila reviewed the policy and found that the uninsured motorist coverage was limited to $30,000, but the liability was $1,000,000. Mr. Gomila explained to Mr. Edwards that in Louisiana, if specific procedures were not observed, the uninsured motorist coverage equals the liability coverage. Mr. Gomila testified that he informed Mr. Edwards that if no valid waiver of uninsured motorist coverage, or selection of lower limits could be shown, the exposure for Sunset would be $1,000,000. Mr. Edwards undertook to find some evidence of a selection of lower limits or a rejection of uninsured motorist coverage. Mr. Gomila followed up that conversation with a letter verifying the telephone conversation. Mr. Gomila testified that Mr. Edwards never questioned whether Commonwealth was insured under the Sunset policy.

At the time of trial in the Comberrel case, plaintiffs counsel requested a stipulation. Plaintiffs counsel made it clear that, if there would be no stipulation, he would issue subpoenas to get additional information on how Sunset handled the case. This was relevant because of possible penalties for an arbitrary refusal to make payment. Mr. Gomila discussed the matter with Mr. Edwards. Mr. Gomila explained that the choice was to sign the stipulation that Commonwealth was a named insured and there was no selection of lower limits below the $1,000,000, or bring witnesses from California to Louisiana to testify about what happened when the policy was issued and why the claim was not paid. Mr. Gomila stated that no |Rone concerned, including Mr. Edwards and Mr. Schultz, wanted to spend extra money and time over an issue that was already settled. After considerable discussion, Mr. Gomila was authorized to sign the stipulation. Mr. Gomila further stated that the defense would be that the policy did not cover the specific situation in which Mr. Comberrel died.

In his deposition Mr. Edwards does not deny that conversation took place, he merely states that he does not recall what transpired. There is no other evidence regarding the issue of whether Mr. Gomila was given either expressed or implied authorization to sign the stipulation that forms the basis of the malpractice claim.

This court may not overturn a factual finding by a jury absent a showing of manifest error or unless a particular finding of fact was clearly wrong. LeJeune v. Union Pacific R.R., 97-1843 (La.4/14/98), 712 So.2d 491, 494. The court of appeal may not reverse the jury in a finding of fact if the jury’s conclusions were reasonable ones pursuant to the record, even if convinced that it would have weighed the evidence differently. Id; Arnold v. Dufrene, 01-1179 (La.App. 5 Cir. 3/13/10), 815 So.2d 136, 140. Given that standard of review and the evidence presented at trial, we cannot find the jury’s conclusions of fact were manifestly erroneous or clearly wrong.

Accordingly, the judgment of the trial court is affirmed.

Defendant has filed exceptions of per-emption, no right of action and no cause of action in this court. In view of this opinion, these exceptions are denied as moot.

AFFIRMED.

      . Cannella, J. dissented with reasons.

      . Sunset Insurance Co. v. Gomila, 00-1428 (La.6/30/00), 765 So.2d 1056; reh. denied, 00-1428 (La.9/15/00), 767 So.2d 704.


author: | ¡¿KLINE, J. Pro Tern. |-¡FOGG, J.,

text:
    Susan McKneely FOWLER v. Claude Ed FOWLER.
    No. 2002 CA 0222.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2002.
    Rehearing Denied Feb. 3, 2003.

      H. Alston Johnson, III, Vincent Saffiotti, Baton Rouge, for Plaintiff — Appellee Susan McKneely Fowler.
    Rodney C. Cashe, Deshea S. Richardson, Hammond, for Defendant — Appellant Claude Ed Fowler.
    Before: FOIL, FOGG, and KLINE, JJ.

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

   | ¡¿KLINE, J. Pro Tern.

In this case, a former husband appeals a judgment finding that the proceeds of life insurance policies paid on the death of his son, during the existence of the former community of acquets and gains, are the separate property of his former wife, the mother of the deceased. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Claude Ed Fowler and Susan M. Fowler were married on June 4, 1965. Their son, Claude E. Fowler, Jr. was born on February 22, 1969. The Mutual Life Insurance Company of New York issued three “whole life” policies of life insurance on Claude Fowler, Jr., totaling $500,000. The first, with a face amount of $100,000, was acquired on January 16, 1986, the second was issued on September 17, 1987, with a face amount of $100,000, and a third policy was issued on February 3, 1988, with a face amount of $300,000. In all three policies, Claude E. Fowler, Jr. was the insured, Susan M. Fowler was designated as first beneficiary, and Claude Ed Fowler was designated as second beneficiary.

Claude Fowler, Jr. died in an automobile accident in March 1990 at the age of twenty-one, and the proceeds of all three policies were paid to Susan M. Fowler and deposited initially in a Prudential Annuity account in the name of Susan M. Fowler and, subsequently, in a Merrill Lynch account in the name of Susan M. Fowler.

In July of 1998, Susan Fowler filed a petition of divorce- against Claude Fowler. A judgment of divorce was rendered on April 5, 1999. Susan Fowler filed a community property partition suit on June 1, 1999. All claims arising out of the dissolution of the community were resolved by a written stipulation dated January 8, 2001, reserving for a decision by the court the sole issue of whether $450,000 of those proceeds for the life insurance policies are community property or the separate property of Susan M. Fowler. The trial court declared the proceeds of the life insurance policies to be the separate property of Susan M. Fowler. Claude Fowler appealed this judgment and on appeal urges this court to find the insurance proceeds were community property.

|3In perspective, the three insurance policies were purchased during the community. The named insured died during the existence of the community some eight year’s prior to its termination by divorce. The proceeds were paid to the first named beneficiary, Mrs. Fowler, during the existence of the community. Thus, the insurance contracts or polices themselves did not exist at the termination of the community. There could be no cash value, no right to change beneficiary or other indicia of ownership. The clear issue is not the ownership of the policies, but whether the proceeds payable to the named beneficiary during the community are separate or community funds.

CONTENTIONS OF MR. FOWLER

Mr. Fowler assigns error to the trial court’s finding that the proceeds of the life insurance policies paid to Mrs. Fowler during the community of acquets and gains were the separate property of Mrs. Fowler. Mr. Fowler contends that Mrs. Fowler did not overcome the presumption of community property, which was her burden to prove.

Louisiana Civil Code Art. 2340

Things in the possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community, but either spouse may prove they are separate property.

Mr. Fowler relies on the holding of Thigpen v. Thigpen, 231 La. 206, 91 So.2d 12 (1956), that since a policy of life insurance was issued during the existence of the (second) marriage, the proceeds of the policy were part of the community of that (second) marriage. The court reasoned that the status of the proceeds of such life insurance, i.e., whether separate or community property, depends upon whether the contract of insurance was made during the existence of the community.

Appellant, Mr. Fowler strenuously argues that the insurance policies were issued during the marriage; community funds paid the premiums; there was no evidence of a donative intent and none was found by the trial court; the benefits were received by a spouse in community; therefore, civil code principles of community property should control.

|4Mr. Fowler further contends that the trial court had no scintilla of evidence in support of overcoming the presumption of community funds.

CONTENTIONS OF MRS. FOWLER

Mrs. Fowler argues that she was designated in all three policies as both the beneficiary and the owner of the policies, however, she acknowledges that rights of ownership of these policies are not relevant as to the classification of the proceeds. Mrs. Fowler further notes that the policy language designated the insured himself as owner upon his twenty-first birthday, which he had attained just prior to his demise.

As the undisputed beneficiary of the policies, Mrs. Fowler urges the applicability of La R.S. 22:647, to wit:

2. La. R.S. 22:647 provides in part, “the lawful beneficiary ... of a life insurance policy or endowment policy, heretofore or hereafter effected shall be entitled to the proceeds and avails of the policy against the creditors and representatives of the insured and of the person effecting the policy or the estate of either, and against the heirs and legatees of either such person... (emphasis supplied)

She contends that Mr. Fowler is “a person effecting the policy” by virtue of his community property claims and he cannot prevail against the beneficiary under language of La. R.S. 22:647.

Mrs. Fowler further contends that the holding of the Louisiana Supreme Court decision in Thigpen v. Thigpen, was implicitly overruled by the clear language of that court in Standard Life Insurance Co. of the South v. Franks, 278 So.2d 112 (La.1973):

All parties to this litigation have agreed that the insurance policy was community property. * * * The death benefits of the life insurance policy were never community property, for there was a named beneficiary other than the
estate of the insured. Death benefits payable to one other than the estate are not part of the community of acquets and gains, and they were not here made a part of that community through the settlement agreement. We need only examine the contract of insurance, therefore, to determine to whom are due the funds on deposit [in the registry of the court]. * * * It is true that the policy of insurance, as opposed to the death {¡¡benefits under the policy, was transferred in the community settlement. The deceased [husband] was in fact vested with all the rights and obligations under the policy of insurance. He owned the policy, but not the death benefits. Insofar as the death benefits were concerned, he retained only the contractual right to change the beneficiary [which he never did].

Mrs. Fowler contends that Berry v. Metropolitan Life Insurance Company 327 So.2d 521 (La.App. 1 Cir.1976), is consistent with these principles, to wit:

Equally well settled, however, is the rule that death benefits or proceeds of a life insurance policy with a named beneficiary other than the estate of the insured owner, do not form part of the owner’s estate, either separate or community, but belong exclusively to the validly designated beneficiary, [citations omitted].

Spaht and Hargrave, Matrimonial Regimes (2nd Ed.), 16 La. Civ. Law Treatise, Section 3.32, p. 122-123 is quoted as follows:

Louisiana courts treat life insurance as a unique contract governed by its own rules rather than by Civil Code rules on donations. Subsequent statutes have confirmed that basic policy decision. The proceeds of a policy paid upon the death of the insured go to the beneficiary of the policy without regard to community property concerns. The beneficiary receives those funds with no obligation to compensate the spouse of the insured or the owner of the policy, regardless of the source of funds used to pay the policy premiums. * * *

In essence, Mrs. Fowler argues that the result by the trial court was correct in that any presumption that the proceeds were community property had been rebutted by the characterization of the proceeds under the law.

DISCUSSION

There are two lines of reasoning in this case that may ultimately result in a common finding that the proceeds of those life insurance policies paid during the community are the separate property of the named beneficiary spouse. Things in the possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community, but either spouse may prove that they are separate property. La. C.C. art. 2340.

This ease was submitted to the district court on the record after a hearing on July 3, 2001, in which counsel for the parties presented argument but no | fiadditional evidence. After taking the matter under advisement, the trial judge rendered judgment in favor of Mrs. Fowler for the written reasons given as follows:

The ... issue to be decided by the court is whether life insurance proceeds of $450,000.00 paid on a-life insurance policy on the life of a son of Mr. [a]nd Mrs. Fowler [are] community or separate property. Mrs. Fowler is named first beneficiary on all policies. Claude Fowler, Sr. is named as a second beneficiary only if Susan M. Fowler should not be living at the death of the insured.
Both parties have presented well-written defenses of their positional. However, this Court finds that the law favors plaintiffs position. Defendant argues that the money in question is presumed to be community property. While this Court agrees, the Court finds plaintiff has overcome that presumption. Therefore the insurance proceeds are ruled to be Susan Fowler’s separate property.

A trial court’s determination of whether an insurance policy is separate or community property is subject to the manifest error standard of appellate review. Biondo v. Biondo, 99-0891, p. 4 (La.App. 1 Cir. 7/31/00), 769 So.2d 94, 99. Thus, the trial court’s finding of fact may not be set aside on appeal unless there is no reason able factual basis for the finding and the finding is clearly wrong (manifestly erroneous). Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). On appellate review, if an appellate court makes a determination that the trial court’s findings are reasonable in light of the record reviewed in its entirety, then the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Stobart v. State, Department of Transportation and Development, 617 So.2d at 882-883. Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

An examination of the record presented on appeal reveals the following facts in addition to those stated by the trial court. Susan McKneely Fowler owned an interest in Harry McKneely & Son, Inc. (“McKneely”), obtained by gift from her parents. It was uncontested that this interest was Mrs. Fowler’s separate property. Both she and her deceased son, Claude E. Fowler, Jr., had been employees of McKneely.

The first policy, acquired when the insured was seventeen years old designated rights under the policy as follows:

17NON-MAJORITY: “All rights to employer except: (1) right to change beneficiary for any amount in excess of employer’s interest to Susan M. Fowler— mother (insured or, 3rd party name or his/her executors or administrators) and: (2) rights to assign and change designation of rights to Susan M. Fowler— mother (insured, or, 3rd party name or his/her executors or administrators) and employer jointly.” [Underscoring added.]

The second policy was acquired when the insured was nineteen years old and contained the following language relative to rights under the policy:

All rights provided in the “RIGHTS (OWNERSHIP) UNDER POLICY” Section of this endorsement belong exclusively to the following: (a) before the Insured’s 21st birthday, to mother, Susan M., if living, if not, to father, Claude, if living; (b) on and after such birthday, or after the earlier of death of the survivor of said mother and said father, to the Insured.

The third policy was acquired shortly before the insured’s twentieth birthday and contained the following language:

All rights provided in the “RIGHTS (OWNERSHIP) UNDER POLICY” Section of this endorsement belong exclusively to the following: (a) before the Insured’s 21st birthday, to mother, Susan M., if living, if not, to father, Claude E. Sr., if living; (b) on and after such birthday or after the earlier death of the survivor of said mother and said father, to the Insured.

The beneficiary of these policies was in each instance named as follows: “1st Susan M. Fowler — mother if living, if not 2nd Claude Fowler, Sr. — father.”

The language contained in the first policy referencing rights in the “employer” raises the inference that at least the first policy was procured in connection with the insured’s employment with McNeely; however, there was no reference to the “employer” in the subsequent policies though they were issued by the same insurance company. Although Mr. Fowler argues in brief to the court that the policies were purchased with community funds, there is no evidence on this point in the record. Mr. Fowler also refers in brief to a “stipulation” of the parties on this point, but again, no stipulation on this issue appears in the record before us on appeal.

There is a significant undisputed fact that the proceeds of the policies subsequent to their receipt on or about May 1, 1990 were deposited in a Prudential annuity and thereafter in a Merrill Lynch account in the name of Susan M. Fowler, alone. , Thus, for approximately eight years of marriage the insurance proceeds were kept separate in Mrs. Fowler’s name and were not commingled.

IsWe can conclude that there is evidence in the record that afforded the trial court a reasonable factual basis for finding that the insurance proceeds were the separate property of Mrs. Fowler.

A corollary line of reasoning is that life insurance contracts are sui gener-is. There is a clear distinction between classification of a policy and the classification of the proceeds of the policy received by a name beneficiary. The policy itself may be separate or community depending on when it was acquired or the classification of funds with which it was acquired. The proceeds of a policy paid upon the death of the insured go to the beneficiary of the policy without regard to community property concerns. They are separate funds.

This does not do violence to the community property regime. It is not against public policy and can serve a valid social purpose. The status of this law as sui generis can be said to simply afford a rebuttal to the general presumption of community.

CONCLUSION

In the instant case the judgment of the trial court that the proceeds of the insurance policies are the separate property of the named beneficiary Mrs. Fowler is supported in fact and law. There are ample expressions of legal principles in Standard Life Insurance Co. of the South v. Franks and Berry v. Metropolitan Life Insurance Co. to move away from the 1956 holding in Thigpen v. Thigpen.

For the reasons assigned, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Mr. Fowler.

AFFIRMED.

FOGG, J., dissents and assigns reasons.

|-¡FOGG, J.,

dissenting.

For the following reasons, I respectfully dissent. The cases relied on by the majority are not dispositive of the issue raised herein. Rather, Thigpen v. Thigpen, 231 La. 206, 91 So.2d 12 (1956) is the only case that is squarely on point. In Thigpen, the husband acquired an insurance policy on the life of his son by a prior marriage. The policy was issued during the marital community of the second marriage. The son died and the insurance proceeds were paid. The Louisiana Supreme Court held that, since the policy was issued during the existence of the community of the second marriage and the proceeds were paid dim-ing the existence of the community of the second marriage, the proceeds of the policy were part of the community property of the second marriage. The Thigpen case has not been overruled, and no subsequent jurisprudence is on point factually with the instant case. Therefore, Thigpen is controlling and dictates that the insurance proceeds herein are community property. The trial court erred in concluding that the proceeds were the separate property of Susan M. Fowler. I would reverse the judgment of the trial court and render judgment in favor of Claude Ed Fowler, declaring the proceeds of the insurance policies to be community property.

      . The first policy issued in 1986 gave rights to his employer.