text:
    Janice GARDNER, Patricia Cammon, Mary J. Desoto, Ann Rieth, Karen Kelly, Joyce Richardson, Clara Stirgus, Maggie Hollomon Sylvas, Elizabeth Thebault, Marie Ferrina surviving spouse of Frank Ferina and Dorthy Wilson v. The STATE of Louisiana, Through the DEPARTMENT OF EDUCATION, the State of Louisiana Through the Division of Administration, and the Jefferson Parish School Board.
    No. 2002 CA 0643.
    Court of Appeal of Louisiana, First Circuit.
    March 28, 2003.
    Writ Denied June 27, 2003.

      Jay Alan Ginsberg, Larry Samuel, New Orleans, for Plaintiffs-Appellees, Janice Gardner, et al.
    Pamela M. Perkins, R. Christopher Fruge, Joan E. Hunt, Baton Rouge, for Defendants-Appellants, State of Louisiana, Through the Dept, of Education and The State of Louisiana, Through the Division of Administration.
    Before: CARTER, C.J., WHIPPLE, and CIACCIO, JJ.

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

   2CARTER, C.J.

The State of Louisiana (State) appeals from the trial court’s granting in part and denying in part cross-motions for summary judgment in favor of the plaintiffs.

FACTS AND PROCEDURAL HISTORY

In the 1994 Regular Session, the Louisiana Legislature approved a one-time salary supplement for Louisiana teachers and other state employees. The supplement was contingent upon the receipt of land-based casino gaming revenues. See Act No. 15, Section 17 of the 1994 Appropriations Bill (hereafter referred to as “the Act”). The Act provided that eligibility for the one-time salary supplement was based upon employment during a specific time period in 1994, and the amount to be paid to each teacher was to be calculated as a percentage of the state-supported annual salary for teachers, not to exceed $1,200 per person. The Act further provided that the calculation of the annual salary for purposes of determining the supplemental payment amount was to be based on the monthly salary of the teacher in effect on November 30, 1994, and the payment of the supplement was in no way to affect the teacher’s existing salary.

Plaintiffs are Louisiana teachers who were employed and on approved sabbatical leave during the time for which the supplemental payment was calculated. Plaintiffs filed suit for declaratory judgment against the State, contending that their one-time salary supplement had not been calculated properly and was contrary to the Act and the statutes governing teachers on sabbatical leave. Instead of being paid the full amount of the one-time salary supplement, the State paid plaintiffs one-half the amount of the | Ssalary supplement, based upon their state-supported annual salary during their sabbatical leave period.

Cross-motions for summary judgment were filed. The trial court granted plaintiffs’ motion in part and the State’s motion in part, finding that the State was required to pay plaintiffs the full amount of their one-time salary supplement rather than one-half the amount paid by the State, and ordered the State to pay each plaintiff a specific amount in judgment. The State appeals, arguing the trial court erroneously relied on LSA-R.S. 17:1183 instead of following the language of the Act and giving deference to the State’s interpretation of the Act.

LAW AND ANALYSIS

This dispute essentially revolves around the proper interpretation of Act No. 15 of 1994, § 17. Appellate courts review summary judgments de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. A.K. Durnin Chrysler-Plymouth, Inc. v. Jones, 2001-0810, p. 3 (La.App. 1 Cir. 5/10/02), 818 So.2d 867, 869. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). The interpretation of a statute is a question of law that may be decided by summary judgment. In reviewing questions of law, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and renders | Judgment on the record. A.K Durnin Chrysler-Plymouth, Inc. v. Jones, 818 So.2d at 869.

The function of statutory interpretation and the construction to be given to legislative acts rests with the judicial branch of government. Rougeau v. Hyundai Motor America, 2001-1182, p. 5 (La.1/15/02), 805 So.2d 147, 151. The starting point in the interpretation of any statute is the language of the statute itself. A.K. Durnin Chrysler-Plymouth, Inc. v. Jones, 818 So.2d at 870. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written, and its letter shall not be disregarded in search of the intent of the legislature or under the pretext of pursuing its spirit. A statute shall be construed to give meaning to the plain language of the statute, and courts may not extend statutes to situations that the legislature never intended to be covered. Id.

This court outlined the jurisprudence regarding statutory interpretation in Barrilleaux v. NPC, Inc., 98-0728, pp. 4-5 (La.App. 1 Cir. 4/1/99), 730 So.2d 1062, 1064-1065, writ denied, 99-1002 (La.5/28/99), 743 So.2d 672, as follows:

When interpreting a law, the court should give it the meaning the lawmaker intended. It will not be presumed that the legislature intended for any part or provision of the law to be meaningless or useless. It is presumed that every word, sentence, or provision in the law was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were used. The meaning of a statute is to be interpreted by looking to all the sections taken together so that no section, clause, sentence or word becomes superfluous or meaningless.
Where it is possible to do so, it is the duty of the courts in the interpretation of laws to adopt a construction of the provision in question which harmonizes and reconciles it with other provisions. The legislature is presumed to have enacted each statute with deliberation and with full knowledge of all existing laws on the same subject. The meaning and intent of the statutory provision is to be determined by a consideration of the statute in its entirety and all other laws on the same subject matter and a construction should be placed on the provision in question which is consistent with the express terms of the statute and with the obvious intent of the legislature in enacting it. It is reasonable to conclude that the legislature, in passing a statute, did not intend to abrogate any prior law relating to the same subject matter. (Citations omitted.)

With these established principles of statutory interpretation in mind, we now analyze the language of the Act with regard to the one-time salary supplement for teachers without any deference to the trial court’s, the State’s, or the plaintiffs’ various interpretations of the Act. Ultimately, it is the function of the court to review and |fiinterpret the applicable law. Lasyone v. Phares, 2001-1785, p. 6 (La.App. 1 Cir. 5/22/02), 818 So.2d 1068, 1072, writ denied, 2002-1711 (La.10/14/02), 827 So.2d 423.

The pertinent language of the Act is as follows:

The appropriation provides for a supplemental payment, equal to ... five percent of the state supported annual salary for teachers, ... and not to exceed $1,200 per person. The payment shall only be made to persons who were employed or who were recipients of supplemental pay or retirement benefits between July 1, 1994 and November 30, 1994, and who have remained continuously in that status through November 30, 1994, and through the date of distribution of the payment.
The calculation of the annual salary ... for purposes of determining this supplemental payment amount shall be based on the monthly salary ... in effect on November 30, 1994. Further, the payment shall, in no way, affect existing salary, or supplemental pay schedules, or benefit formulae for any class of employees or retirees, specifically including ... teachers .... ” (Emphasis added.)

It is undisputed that the plaintiffs were employed during the applicable time period for receipt of the one-time salary supplement. The Act clearly provides that the calculation of the annual salary for purposes of determining the amount of the one-time salary supplement shall be based on the monthly salary in effect on November 30, 1994. The word “shall” means the provision is mandatory. No further interpretation is necessary. According to the unambiguous language in the Act, it is necessary to determine the monthly salary for each teacher before the supplement may be calculated.

It is presumed that the Legislature enacted the Act with deliberation and full knowledge of all the existing laws relevant to teachers on leave from active duty. See Barrilleaux, 730 So.2d at 1065. It is irrelevant whether the teacher was on active duty or on sabbatical leave. The Act does not distinguish between active duty teachers and those on various types of leave. The only relevant qualification in the Act for receipt of the one-time salary supplement is that the teacher be employed. After that criterion is |fimet, the state-supported annual salary is calculated based on the teacher’s monthly salary. The one-time salary supplement is a percentage of the calculated state-supported annual salary. Therefore, we find that the Act clearly sets forth the rate for determining the one-time salary supplement.

According to the Act, each teacher’s monthly salary shall be calculated with reference to the rate of compensation he or she earned as of November 30, 1994. The monthly salary for teachers on sabbatical leave must be calculated with reference to LSA-R.S. 17:1184, because that statute governs the compensation to be received while a teacher is on sabbatical leave. It is undisputed that the State referred to LSA-R.S. 17:1184 when calculating the plaintiffs’ state-supported annual salaries. The applicable version of LSA-R.S. 17:1184 in effect during the relevant time period when the plaintiffs were on sabbatical leave provided that each teacher granted sabbatical leave shall receive and be paid compensation at the rate of fifty percent of the minimum salary allowed a beginning teacher holding a bachelor’s degree. The minimum salary schedule for teachers is legislatively mandated by LSA-R.S. 17:421.3. As authorized by LSA-R.S. 17:1184, teachers on sabbatical leave receive compensation based on the minimum salary schedule. See LSA-R.S. 17:421.3(0).

In conclusion, we find that the Act clearly and unambiguously provides for the computation of the one-time salary supplement based on the monthly salary of the teacher as of November 30, 1994. The Act should be applied as written because its application does not lead to absurd consequences. We find that the State’s calculation of each plaintiffs’ onetime salary supplement was in accordance with the provisions of the Act. The trial court erred in looking beyond the words of the Act to find that plaintiffs were entitled to the one-time salary supplement based on “their salary as if they were on active duty.”

^Accordingly, we reverse the trial court’s judgment granting plaintiffs’ motion for summary judgment in part and denying the State’s motion for summary judgment in part. Furthermore, we hereby grant the state’s motion for summary judgment and find that the plaintiffs are not entitled to more than they have already received for their one-time salary supplement. Costs of .this appeal are to be paid by the plaintiffs-appellees.

REVERSED AND RENDERED.

      . The defendant-appellant is the State of Louisiana, through the Division of Administration and through the Department of Education.

      . The individually named plaintiffs are Janice Gardner, Patricia Cammon, Mary J. DeSoto, Ann Rieth, Karen Kelly, Joyce Richardson, Clara Stirgus, Maggie Hollman Sylvas, Elizabeth Thebault, Marie Ferrina as surviving spouse of Frank Ferrina, Dorthy Wilson, Doris Holmes, Rosa Stevens, and Genella Powell.

      . It is undisputed that the rate for the onetime salary supplement was ultimately established at 4.176% with a maximum of $1,002.24 per person, in accordance with the provisions of the Act.

      . According to plaintiffs’ petition, Frank Fer-rina was not on any type of leave during the relevant time period; however, the specifics of Frank Ferrina’s claim are irrelevant for purposes of this appeal.

      . It is undisputed that the responsibility for distributing the funds to implement the onetime salary supplement was delegated in the Act by the Legislature to the State, through the Division of Administration, with the actual calculation of the salary supplement for teachers on sabbatical leave made by the State, through the Department of Education, with acquiescence of the Division of Administration. An exhibit attached to the State's motion for summary judgment was a July 26, 1995 memorandum from the State Superintendent of Education on behalf of the Department of Education to all local school system superintendents and business managers. The Superintendent stated that "[d]ue to the volume of questions concerning the recent state salary supplements paid to sabbatical employees, the following information outlines the basis on which these particular supplements were calculated.” The memorandum further provides that the supplement for these employees "was calculated at fifty percent of the state minimum teachers salary schedule based on actual years of experience and educational level.”

      . If the Act had specifically limited the onetime salary supplement to teachers on active duty, then plaintiffs’ reliance on LSA-R.S. 17:1183 would be relevant. LSA-R.S. 17:1183 provides that teachers on sabbatical leave shall enjoy all rights and privileges they would have enjoyed had they remained in active service. However, LSA-R.S. 17:1183 does not enhance the rights of teachers on sabbatical leave, it merely preserves the status of teachers during the leave. See Scott v. Dennis, 392 So.2d 169 (La.App. 4 Cir.1980). Therefore, LSA-R.S. 17:1183 does not provide for nor authorize a change in the compensation rate for teachers on sabbatical leave that is specifically outlined in LSA-R.S. 17:1184.

      . The State actually calculated at a rate of fifty percent of the minimum salary allowed based on actual years of experience and education level rather than a beginning teacher holding a bachelor's degree. During the relevant time period, LSA-R.S. 17:1184 also provided that a teacher on sabbatical leave could elect to be paid the difference between the salary he would have received during the leave if in active service and the salary which a day-by-day substitute would receive during the leave. The record does not reveal the compensation option of any of the plaintiffs while on their sabbatical leave. However, the plaintiffs do not dispute the state’s method of calculating their state-supported annual salaries while on sabbatical leave; they only dispute the calculation of the one-time salary supplement based on their sabbatical salaty instead of active duty salary.


source: Caselaw Access Project

author: 2WHIPPLE, J.

license: Public Domain

text:
    Pat Shelby TODD, Jr. v. Christine E. ANGELLOZ and Family Psychology Center, Inc.
    No. 2002 CA 1400.
    Court of Appeal of Louisiana, First Circuit.
    March 28, 2003.
    Writ Denied June 27, 2003.

      H. Clay Walker, Shreveport, for Plaintiff/Appellant Pat Shelby Todd, Jr.
    Keith B. Nordyke, Baton Rouge, for Defendants/Appellees Christine E. Angelloz and Family Psychology Center, Inc.
    Before: CARTER, C.J., WHIPPLE and CIACCIO, JJ.

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

   2WHIPPLE, J.

Plaintiff appeals a judgment dismissing his lawsuit, pursuant to an exception of prematurity, and dismissing a medical review panel, on the basis of defendant’s judicial immunity. We affirm.

FACTS

On June 1, 2000, Alicia Brown Todd filed for divorce from Pat Shelby Todd, Jr. On July 18, 2000, a judge of the Eighteenth Judicial District appointed and ordered Dr. Christine Angelloz to perform a mental health evaluation of Mr. and Mrs. Todd and their three minor children in order to develop a custody plan. On August 28, 2000, the Todds stipulated to amend the prior judgment by canceling the previous judgment ordering an evaluation of the entire family and agreeing to have Dr. Angelloz perform a psychological evaluation of Mr. Todd. The amended judgment also provided that if deemed necessary by Dr. Angelloz, the minor children would be made available for behavioral observations and Mrs. Todd also was required to present herself for one or more interviews with Dr. Angelloz. Following the evaluation, Mr. Todd was allowed only supervised visitation with his children for the period of December 2000 until October 2001.

On December 12, 2001, Mr. Todd filed the instant suit in the Nineteenth Judicial District seeking damages against Dr. An-gelloz and the Family Psychology Center, Inc. The petition alleges that Dr. Angelloz: (1) failed to provide the trial court and the parties with a written report of her findings, a violation of LSA-R.S. 9:331 B; (2) negligently misinterpreted and misrepresented the results of Mr. Todd’s psychological evaluation; and (3) | .¡exceeded the scope of the order appointing her in this case by making an actual custody recommendation.

According to Mr. Todd’s lawsuit, he was unable to see his children free of restrictions from December 2000 until October 2001. Mr. Todd asserts that this custody arrangement was the result of Dr. Angel-loz’s deliberate indifference, gross negligence, personal malice, de facto custody determination of December 2000, and failure to comply with the guidelines of the American Psychological Association and LSA-R.S. 9:331 B. Further, Mr. Todd alleges Dr. Angelloz’s acts were violations of his constitutional rights, actionable torts under LSA-C.C. art. 2315, and actionable medical malpractice.

On December 14, 2001, Mr. Todd filed a petition with the Louisiana Patient’s Compensation Fund requesting formation of a medical review panel. In this petition, Mr. Todd made the same allegations regarding the actions of Dr. Angelloz and the resulting impact of these alleged actions on his visitation rights with his children.

In response, Dr. Angelloz and the Family Psychology Center Inc. filed a dilatory exception raising the objection of prematurity and a peremptory exception raising the objections of immunity and no cause of action. Following a hearing on the matter, the trial court granted defendants’ exception of prematurity and dismissed Mr. Todd’s district court lawsuit. The trial court also sustained the exception raising the issue of immunity, finding Dr. Angelloz had judicial immunity in this matter; thus, the court dismissed the medical review panel. Mr. Todd appeals. We affirm.

I ¿DISCUSSION

Prematurity

Louisiana Code of Civil Procedure article 926 A(l) provides for the dilatory exception of prematurity. A suit is premature if it is brought before the right to enforce the claim sued on has accrued. LSA-C.C.P. art. 423. Prematurity is determined by the facts existing at the time suit is filed. Hildago v. Wilson Certified Express, Inc., 94-1322, p. 3 (La.App. 1st Cir.5/14/96), 676 So.2d 114, 116. The exception raising the objection of prematurity may be utilized in cases where the applicable law or contract has provided a procedure for a claimant to seek administrative relief before resorting to judicial action. Hidalgo, 94-1322 at p. 4, 676 So.2d at 116.

The Medical Malpractice Act requires that all medical malpractice claims against covered health care providers be submitted to a medical review panel prior to filing suit in district court. LSA-R.S. 40:1299.41(E); LSA-R.S. 40:1299.47(A) & (B). This administrative procedure affords the medical review panel an opportunity to render its expert opinion on the merits of a complaint. If an action against a health care provider covered by the Act has been commenced in district court and the claimant’s proposed complaint has not been first presented to a medical review panel, an exception of prematurity must be sustained, and claimant’s district court claim must be dismissed. See LSA-C.C.P. art. 933; LSA-R.S. 40:1299.47(B)(l)(a)(i); Hildago, 94-1322 at p. 4, 676 So.2d at 117.

Mr. Todd argues there are significant claims within his petition that are not covered by the Medical Malpractice Act because they assert intentional torts. He argues that Dr. Angelloz acted intentionally by exceeding the scope of the judge’s order (by making a custody recommendation), and by withholding her report for nine months. In | ¡¡addition to his malpractice claim, Mr. Todd asserts intentional constitutional due process and equal protection violations occurred herein.

In general, any conduct by a health care provider complained of by a patient is properly within the scope of the Medical Malpractice Act if it can reasonably be said that it comes within the definitions of the Act, even though there are alternative theories of Lability. Hildago, 94-1322 at p. 5, 676 So.2d at 117. Malpractice is defined in the Medical Malpractice Act as “any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely[.]” LSA-R.S. 40:1299.41(A)(8).

The Louisiana Supreme Court has recently set forth a six-factor test for determining whether particular conduct by a health care provider constitutes malpractice under the Medical Malpractice Act. In Coleman v. Deno, 2001-1517, pp. 17-18 (La.1/25/02), 813 So.2d 303, 315-16, the court used the following factors in making its determination:

(1) whether the particular wrong is ‘treatment related’ or caused by a dereliction of professional skill,
(2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached, and
(3) whether the pertinent act or omission involved assessment of the patient’s condition[,].
(4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform,
(5) whether the injury would have occurred if the patient had not sought treatment, and
(6) whether the tort alleged was intentional.

Coleman, 2001-1517 at pp. 17-18, 813 So.2d at 315-16.

| ^Applying the Coleman factors to the allegations in this case, we first note that the allegations made against Dr. Angelloz arise from a judicial appointment in which she was ordered to perform a psychological evaluation of Mr. Todd. Clearly, allegations that Dr. Angelloz exceeded the scope of her appointment or did not properly present the results of her evaluation are allegations of a dereliction of her professional skill.

Regarding the second factor, although we only have the allegations that Dr. An-gelloz violated the American Psychological Association guidelines and misrepresented the results of the test she performed, we concede that expert testimony may not be necessary to evaluate whether Dr. Angel-loz failed to conform to established guidelines or misrepresented test results. In order to prevail, Mr. Todd must demonstrate by a preponderance of the evidence a causal nexus between Dr. Angelloz’s breach and Mr. Todd’s deprivation of custody. See Pfiffner v. Correa, 94-0924, 94-0963, 94-0992, pp. 9-10 (La.10/17/94), 643 So.2d 1228, 1234. However, in order to establish a breach of the standard of care, Mr. Todd seemingly would be required to present expert testimony to establish what is the standard of care for a psychologist in performing a psychological evaluation as well as the role of a psychologist in a custody determination.

As to the third factor, Dr. Angelloz’s act of evaluating Mr. Todd’s psychological condition pursuant to the court’s order clearly involved a professional assessment of Mr. Todd’s condition. As to the fourth factor, it is undisputed that the alleged misconduct occurred within the context of a psychologist-patient relationship. Although no treatment was rendered, Dr. Angelloz was administering tests used by her profession to evaluate patients. Although Dr. Angelloz was not recommending treatment but reporting her | ./findings to a court for the court’s purposes, Dr. Angelloz’s involvement was on the basis of rendering professional services involving Mr. Todd.

With regard to the fifth factor, i.e., whether the injury would have occurred had the evaluation not taken place, there is no evidence in the record to support or controvert the propriety of the custody order made by the court. We note that the actual custody order in place covering the period of Mr. Todd’s alleged wrongful deprivation of custody and reasons in support thereof are not in the record. Also, given this stage of the proceedings, there is nothing to support or controvert the propriety of the custody order.

Finally, although Mr. Todd alleges Dr. Angelloz’s behavior was intentional, he also alleges the same actions were negligent. Considering these dual characterizations of the acts of Dr. Angelloz in conducting and reporting the results of her evaluation, we deem Mr. Todd’s attempt to classify her actions as insufficient to remove the claim from the provisions of the Medical Malpractice Act.

Applying the Coleman factors to the allegations presented in this case, we find that Mr. Todd’s claim raises issues of “malpractice” clearly subject to the requirements of the Medical Malpractice Act. Accordingly, the trial court properly granted the dilatory exception raising the objection of prematurity.

Immunity

The trial court also dismissed the medical review panel based on its determination that Dr. Angelloz was entitled to judicial immunity under LSA-C.C.P. art. 373. As set forth in art. 373:

An expert appointed by a trial court to assist it in the adjudication of a case in which his special skill and knowledge may aid the court is an officer of the court from the time of his qualification until the rendition of final judgment in the case.

|sThe immunity of court-appointed psychiatrists under LSA-C.C.P. art. 373 was addressed by the Second Circuit in S.T.J. v. P.M., 556 So.2d 244 (La.App. 2nd Cir.1990). In affirming the dismissal of a suit against a court-appointed psychiatrist, S.T.J. relied on article 373 and adopted the reasoning of Myers v. Morris, 810 F.2d 1437 (8th Cir.), cert. denied, 484 U.S. 828, 108 S.Ct. 97, 98 L.Ed.2d 58 (1987), to find appointed psychologists are entitled to absolute immunity, protecting them from having to litigate the manner in which they perform these functions. S.T.J., 556 So.2d at 247. As the court noted in S.T.J., the danger presented in not extending immunity to these court-appointed experts would result in psychologists avoiding future court appointments, and the fear of civil liability would mar opinions and recommendations provided to the courts. S.T.J., 556 So.2d at 247.

Mr. Todd argues that Dr. Angelloz should not be granted judicial immunity and cites Marrogi v. Howard, 2001-1106 (La.1/15/02), 805 So.2d 1118 for the proposition that an expert witness is not entitled to immunity. In Marrogi, the Louisiana Supreme Court held that witness immunity did not bar a claim against a retained expert witness when the claim arises from the expert’s allegedly deficient performance of his duties to provide litigation services, such as formulating opinions and recommendations, and providing opinion testimony before or during trial. Marrogi, 2001-1106 at p. 1, 805 So.2d at 1120. The supreme court noted that the underlying rule permitting a witness to speak freely and without fear of exposure to vexatious litigation where a search for the truth is before the fact-finder is not advanced by immunizing the incompetence of a party’s retained expert witness simply because the expert witness provides professional services, including | testimony, in relation to a judicial proceeding. Marrogi, 2001-1106 at p. 20, 805 So.2d at 1131.

In the present case, Dr. Angelloz was appointed to render professional services in the context of the Todds’ custody proceedings. There is no allegation made by Mr. Todd that he retained Dr. Angelloz as an expert witness on his own behalf. Rather, Dr. Angelloz was appointed to assist the trial court in making a custody determination by providing a psychological evaluation of Mr. Todd. Because Dr. An-gelloz was a court-appointed expert, we find the policies and reasoning enunciated in S.T.J. warrant extending judicial immunity to Dr. Angelloz in these proceedings. Accordingly, the trial court properly dismissed the medical review panel against Dr. Angelloz.

CONCLUSION

Considering the record and applicable law herein, we find no error in the trial court’s judgment sustaining the defendants’ dilatory exception raising the objection of prematurity as to the lawsuit filed in district court. Moreover, we find no error in the trial court’s determination that Dr. Angelloz is immune from suit as a court-retained expert. Accordingly, we affirm the dismissal of the lawsuit filed against Dr. Christine Angelloz and the Family Psychology Center, Inc., and the proceedings before the medical review panel, alleging negligence on the part of these defendants. All costs of these proceedings are assessed against appellant, Pat Shelby Todd, Jr.

AFFIRMED.

      . The record does not contain the custody order providing for supervised visitation nor does it contain any subsequent modifications to the custody order.


author: 2CLAIBORNE, J.

text:
    Leon CLIPPS, Jr. v. STATE of Louisiana, DEPARTMENT OF LABOR and East Baton Rouge Parish School Board.
    No. 2002 CA 1780.
    Court of Appeal of Louisiana, First Circuit.
    March 28, 2003.
    Writ Denied May 16, 2003.

      Leon Clipps, Jr., Baton Rouge, Plaintiff-Appellee In Proper Person.
    Darlene S. Ransome, Baton Rouge, Counsel for Defendant-Appellant East Baton Rouge Parish School Board.
    J. Jerome Burden, Baton Rouge, Counsel for Defendant-Appellant Administrator of the Louisiana Department of Labor.
    Before: PARRO, MCDONALD, and CLAIBORNE, JJ.

      . Judge Ian W. Claiborne, retired, is serving as judge pro tempore by special assignment of the Louisiana Supreme Court.

   2CLAIBORNE, J.

This is an unemployment compensation case. The Louisiana Department of Labor, Office of Regulatory Services, and the East Baton Rouge Parish School Board (School Board) appeal the judgment of the district court reversing the Board of Review and reinstating unemployment benefits to Leon Clipps, Jr. (Clipps).

FACTS AND PROCEDURAL HISTORY

On August 24, 2001, Clipps was discharged from his employment with the School Board, where he had been employed as a custodian. The Department of Labor, Office of Employment Security (OES) disqualified Clipps for unemployment benefits because of misconduct associated with Clipps’s termination. Clipps appealed that decision to an Appeal Referee. The Referee found that the employer had not proved misconduct on the part of Clipps and, therefore, ordered that unemployment benefits be paid. The School Board appealed that decision to the Board of Review. The Board of Review made the following findings of fact:

The claimant worked for the East Baton Rouge Parish School Board from August 1994 until August 24, 2001. He was a full-time Head Custodian and was paid an annual salary of $23,000. On August 24, 2001, the claimant was discharged from the employment for insubordination. As head custodian, the claimant was responsible for cleaning and maintaining an assigned school building. He was informed by Robert Lee, Manager, that no additional money would be spent at the building, but he would only clean and maintain the facility that would eventually be closed. Meanwhile, Ms. Gail Johnson, Assistant Superintendent, received numerous complaints about the building. On August 6, 2001, she reported to the site to address complaints and inspect the building for cleanliness. Ms. Johnson was dissatisfied with the findings and reported to the claimant’s supervisor that the building was unsatisfactory. The claimant, who was absent that day, was informed by his supervisor that Ms. Johnson had coordinated an inspection and was dissatisfied with the condition of the building. The claimant requested to speak with Ms. Johnson. His request was denied, however, he was given permission and allowed to leave 1¡¡work and meet with Mr. Corona, Head Superintendent. The claimant did not meet with Mr. Corona as he had requested. He showed insubordination when he approached Ms. Gail Johnson. Their meeting resulted in a verbal confrontation and the claimant’s supervisor was notified. The claimant was suspended pending an investigation into the matter. About three hours later, the claimant was informed to report to Ms. Annette Mire, Personnel Manager. The claimant informed his supervisor that he could not report because he was going out of town to Dallas, Texas. The claimant was scheduled [for] a pre-disciplin-ary hearing, but failed to attend stating he received notification of the hearing on the day it was scheduled. Subsequently, he was discharged for insubordination. The Board of Review concluded:
After a thorough review of the record and testimony in this case, the Board of Review finds that the claimant was discharged from his employment for insubordination. He was instructed and allowed time off from work to speak to a supervisor. He showed insubordination when he failed to report to the proper supervisor and approached another supervisor, resulting in a verbal confrontation. When the claimant failed to show up for a pre-disciplinary hearing, he was discharged from the employment. The Board of Review unanimously concludes that his discharge was for misconduct connected with the employment. He will be disqualified.

Subsequently, Clipps sought judicial review of the decision of the Board of Review, and the district court reversed its decision. The School Board and The Department of Labor, Office of Regulatory Services, filed a suspensive and a devolu-tive appeal, respectively.

LAW AND DISCUSSION

Unemployment benefits are awarded pursuant to La. R.S. 23:1591, et seq., and the criteria for disqualification for benefits are found in La. R.S. 23:1601. Woods v. Cameco Indus., Inc., 2001-0298, p. 7 (La.App. 1st Cir.3/28/02), 815 So.2d 370, 375. If the administrator finds that an individual has been discharged for misconduct connected with his employment, he shall be disqualified for unemployment benefits. La. R.S. |423:1601(2)(a). Where the employer seeks to deny benefits because of employee misconduct, the burden of proof is on the employer. Woods, 2001-0298 at p. 7, 815 So.2d at 375. This issue is primarily factual and is left to the determination of the Referee and the Board of Review. Banks v. Adm’r, Dep’t of Employment Security of the State of Louisiana, 393 So.2d 696, 699 (La.1981); Major v. Cintas/Red Stick, 94-713, p. 3 (La.App. 3d Cir.12/6/95), 665 So.2d 153, 156, writ denied, 96-0081 (La.3/8/96), 669 So.2d 402.

La. R.S. 23:1634(B) states, in pertinent part, as follows:

In any proceeding under this Section the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law. An appeal may be taken from the decision of the district court to the circuit court of appeal in the same manner, but not inconsistent with the provisions of this chapter, as is provided in civil cases.

Thus, appellate review in this matter is expressly and severely limited to questions of law. St. Tammany Parish School Bd. v. State, Dep’t of Labor, 2001-0757, p. 5 (La.App. 1st Cir.5/10/02), 818 So.2d 914, 917. Courts may not disturb factual findings of the Board of Review when the conclusions are supported by sufficient evidence. In addition, judicial review of the factual findings of the Board of Review does not permit weighing of evidence, drawing of inferences, re-evaluation of evidence or substituting views of the court for that of the Board of Review as to the correctness of the facts presented. St. Tammany Parish School Bd., 2001-0757 at p. 5, 818 So.2d at 917; King v. Tangipahoa Parish Police Jury, 96-0934, pp. 3-4 (La.App. 1st Cir.3/14/97), 691 So.2d 194, 196. The court must determine whether the facts are supported by competent evidence and | Rwhether the facts, as a matter of law, justify the Board of Review’s decision. St. Tammany Parish School Bd., 2001-0757 at p. 5, 818 So.2d at 917-18.

In ruling in favor of Clipps, the district court reasoned:

The Court has carefully reviewed the entire record in these proceedings, de novo. The Court is firmly of the opinion that the hearing officer in the tribunal below made findings of fact and conclusions of law that were supported by the evidence.
The Court also notes for the record that the hearing officer had the benefit of hearing the witnesses, viewing the witnesses, their demeanor in testifying, and obliviously [sic] gave an appropriate consideration.
Therefore, the Court reverses the Board of Review and reinstates the opinion of the hearing officer....

Thus, the district court implicitly placed on the Board of Review the obligation of giving the Referee the same deference that an appellate court would, in ordinary cases, be required to give to a trial court with respect to findings of fact.

However, in Louisiana Hospital Service, Inc. v. Bookter, 317 So.2d 282 (La.App. 1st Cir.), application denied, 320 So.2d 561 (La.1975), this court stated:

We find no merit to plaintiffs argument that we should give greater credence to the findings of the Appeals Referee rather than those of the Board since the Referee was able to observe the demeanor of the witnesses and therefore better able to determine the vital issues of credibility presented in this case. It is not the decision of the Appeals Referee which is here called into question, but rather, the decision of the Board of Review which is specifically granted the power to reverse the Appeals Referee even absent new evidence, R.S. 23:1630. It is not for this court to examine the propriety of each decision made at various administrative levels in a specific case. Rather, we are only concerned with the decision of the Board of Review, the administrative level of last resort in cases of this kind, and whether its findings of fact are supported by sufficient evidence.

Bookter, 317 So.2d at 284. Based on the foregoing, the district court erred as a matter of law. The district court did not have authority to substitute its own view for that of the Board of Review when there was sufficient ^evidence in the record to support the Board of Review’s conclusion that Clipps was discharged for misconduct. Accordingly, this court must conduct a de novo determination of whether or not the ruling of the Board of Review was correct. King, 96-0934 at p. 4, 691 So.2d at 197.

After his request to speak with Ms. Johnson was denied, Clipps was given permission and allowed to leave work to meet with Mr. Corona, Head Superintendent. However, the testimony shows that Clipps did not meet with Mr. Corona as he had requested but instead approached Ms. Johnson.

Ms. Johnson, assistant superintendent for auxiliary services, who inspected the school where Clipps worked, testified that Clipps came up behind her in a very intimidating manner when she was getting out of her car at her office. That testimony was corroborated by Martha Reynolds, a personnel clerk, who witnessed Clipps in the parking lot with Ms. Johnson. She stated that Clipps was yelling at Ms. Johnson, although she could not hear what was being said. She also stated he was very close to Ms. Johnson and felt like Clipps was acting in an intimidating manner towards her.

Clipps was suspended pending an investigation into the matter and about three hours later, Clipps was informed to report to Ms. Annette Mire, Personnel Manager. Clipps informed his supervisor that he could not report because he was going out of town to Dallas, Texas. Subsequently, claimant was scheduled for a pre-diseiplin-ary hearing but failed to attend, because he claimed he received notification of the hearing on the day it was scheduled.

Misconduct means mismanagement of a position of employment by action or inaction, neglect that places in jeopardy the lives or property of others, dishonesty, wrongdoing, violation of a law, or violation of a policy or rule adopted to insure orderly work or the safety of others. La. R.S. 23:1601(2)(a). Misconduct must come from a willful or wanton disregard of 17the employer’s interest, from an intentional breach of the employer’s rules, or from a direct disregard of the standard of behavior which the employer has a right to expect from its employees. St. Tammany Parish School Bd., 2001-0757 at p. 6, 818 So.2d at 918.

The evidence supports the findings of the Board of Review, and its ruling is correct as a matter of law. It must, therefore, be affirmed.

DECREE

For the foregoing reasons, the judgment of the district court is reversed and the decision of the Board of Review finding that Clipps is disqualified from receiving unemployment compensation benefits is reinstated. Costs may not be assessed against Clipps or the Office of Employment Security. See La. R.S. 23:1692 and La. R.S. 23:1548. It also would not be equitable to assess costs against the employer, the East Baton Rouge Parish School Board. Accordingly, the clerk of this court and the clerk of the trial court must absorb the costs. See St. Tammany Parish School Board, 2001-0757 at p. 8, 818 So.2d at 919.

REVERSED.

      . The Board of Review is within the Office of Regulatory Services. See La. R.S. 23:1651 and 1652.

      . The administrator means the Secretary of the Department of Labor. La. R.S. 23:1472(1).


author: 2FOIL, J.

text:
    Martha BARRILLEAUX v. CYPRESS BAYOU CASINO.
    No. 2002 CA 0735.
    Court of Appeal of Louisiana, First Circuit.
    March 28, 2003.

      Richard E. Smith, Lafayette, for Appellant Plaintiff Martha Barrilleaux.
    M. Blake Monrose, Lafayette, for Appel-lee Defendant Cypress Bayou Casino.
    Panel composed of Judges FRANK FOIL, PAGE McCLENDON and WILLIAM F. KLINE, JR.

       Judge WILLIAM F. KLINE, Jr., Retired, serving Pro Tempore by special appointment of the Louisiana Supreme Court.

   2FOIL, J.

In this appeal, a workers’ compensation claimant challenges a judgment dismissing her claims for mental health treatment, penalties, and attorney fees. We affirm.

FACTS AND PROCEDURAL HISTORY

Martha Barrilleaux, a Cypress Bayou Casino employee, slipped and fell on wet pavement in a work-related accident. She obtained medical treatment for chipped teeth, back and knee pain, and a thumb injury. Approximately five months after the accident, Ms. Barrilleaux called Dr. John E. Cobb, her treating orthopedist, with complaints of depression and sought a referral for mental health treatment. Dr. Cobb referred her to Dr. Charles E. Bramlet, Jr., a psychiatrist. After her employer’s workers’ compensation insurer refused to authorize treatment by Dr. Bramlet, Ms. Barrilleaux filed a disputed claim for compensation against her employer, The Chitimacha Tribe of Louisiana d/b/a Cypress Bayou Casino, and the workers’ compensation insurer, Royal and Sunalliance Insurance. After a trial, the workers’ compensation judge dismissed Ms. Barrilleaux’s claim, concluding she failed to prove she was entitled to mental health treatment or to penalties and attorney fees for Royal’s refusal to authorize the treatment. This appeal followed.

DISCUSSION

On appeal, Ms. Barrilleaux contends the workers’ compensation judge erred by refusing to grant her a continuance of the trial of this matter. In a workers’ compensation case, a continuance shall be granted if, at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case. LAC 40:1.6107.

On the day the trial was to commence, almost seven months after Ms. Barril-leaux’s claim was filed, her attorney sought a continuance, contending a psychologist had examined Ms. Barrilleaux only three days earlier and had |3diagnosed her with major depression, but that he, the attorney, did not have adequate time to prepare for the trial after receipt of the psychologist’s report. According to the attorney, Ms. Barrilleaux had diligently attempted to see several mental health professionals since filing her claim, but none would see her because workers’ compensation coverage had not been authorized. The workers’ compensation judge denied Ms. Barril-leaux’s motion, and the matter proceeded to trial.

A workers’ compensation judge is vested with wide discretion in granting or denying a continuance, and his ruling will not be disturbed on appeal in the absence of clear abuse. See Jones v. Blue Cross/Blue Shield of Louisiana, 98-0962 (La.App. 1 Cir. 5/14/99), 740 So.2d 163, 165, writ denied, 99-1728 (La.9/24/99), 747 So.2d 1127. Ms. Barrilleaux had several months to obtain evidence to prove her need for mental health treatment. The workers’ compensation judge held a pretrial conference almost three months before the trial and, at that time, set the date of the trial, as well as deadlines for the exchange of exhibits and for the filing of pretrial motions. Ms. Barrilleaux’s attorney was present at the pretrial conference and, thus, was aware of these dates. If Ms. Barrilleaux was unable to find a mental health professional to see her, she could have moved for a continuance within the three months between the pretrial conference and the trial; in any event, the motion to continue should have been made earlier than on the date the trial was to start. We see no abuse of the workers’ compensation judge’s discretion in refusing to grant the continuance.

Ms. Barrilleaux also contends the workers’ compensation judge erred in denying her motion to reopen the record and submit the report of the psychologist who saw her three days before the trial. For the same reasons the workers’ compensation judge did not abuse his discretion in denying a continuance, he also did not abuse his discretion in denying the post-trial motion to reopen the record.

4 Finally, Ms. Barrilleaux contends the workers’ compensation judge erred in finding the defendants reasonably controverted her claim for mental health treatment and were not liable for penalties and attorney fees. In reasons for judgment, the workers’ compensation judge noted Ms. Barrilleaux had introduced no evidence that she had requested authorization for mental health treatment from her employer or the workers’ compensation insurer. Whether the imposition of penalties and attorney’s fees is warranted is a factual question that will not be disturbed upon review in the absence of manifest error or unless clearly wrong. See Haws v. Professional Sewer Rehabilitation, Inc., 98-2846 (La.App. 1 Cir. 2/18/00), 763 So.2d 683, 690-691. The record supports the workers’ compensation judge’s conclusion, and we find no error in his failure to award Ms. Barrilleaux penalties and attorney fees.

CONCLUSION

For the foregoing reasons, the Office of Workers’ Compensation Administration judgment is AFFIRMED. Costs of this appeal are assessed to Ms. Barrilleaux.

AFFIRMED.

MCCLENDON, J., concurs.


author: WHIPPLE, J.

text:
    Samantha LUPER v. WAL-MART STORES.
    No. 2002 CA 0806.
    Court of Appeal of Louisiana, First Circuit.
    March 28, 2003.

      Catherine Orwig, Metairie, for Defendant/Appellant, Wal-Mart Stores.
    Vijay Venkataraman, Baton Rouge, for PlaintiffAppellee, Samantha Luper.
    Before: CARTER, C.J, WHIPPLE and CIACCIO, JJ.

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

   WHIPPLE, J.

In this workers’ compensation matter, the defendant/employer, Wal-Mart, appeals the judgment of the Office of Workers’ Compensation (“OWC”), ordering it to pay certain medical expenses and assessing penalties and attorney’s fees against it. The claimant answered the appeal, seeking an increase in the amount of attorney’s fees awarded. For the following reasons, we affirm in part, reverse in part, amend in part and, as amended, affirm.

FACTS AND PROCEDURAL HISTORY

Claimant, Samantha Luper, was injured in the course and scope of her employment with Wal-Mart on September 20, 1999. While descending a ladder, claimant missed the last step and fell to the floor, landing on her right wrist and arm. After the accident, claimant was initially taken to the Bogalusa Medical Center for treatment. After a physical examination and x-ray of her wrist, she was transferred to St. Tammany Hospital in Covington, Louisiana, for further required treatment.

There, she was seen by Dr. Mark Hon-tas, who diagnosed her injury as a fracture of the ulnar styloid with significant displacement. He placed her wrist in a splint to reduce the fracture and instructed that she obtain follow-up treatment in his office. During a follow-up visit with Dr. Hontas, he noted changes in her wrist and recommended surgery. Wal-Mart then approved treatment with Dr. Eric George, an orthopedic surgeon who specialized in hand injuries. After reviewing the x-rays and examining claimant, Dr. George found that the fracture remained unstable and that it required surgical intervention, including a closed reduction procedure and application of an external fixation device. Claimant agreed to the surgery, which was performed on October 15, 1999 at East Jefferson General Hospital. After the surgery, she continued treatment with Dr. George until September 1, 2000. She also completed a course of physical therapy as 1¡¡recommended by him. The external fixation device was eventually removed from her hand, and Dr. George released claimant to return to work in a “light work capacity.”

On March 31, 2000, claimant was seen, at Wal-Mart’s request, by Dr. R. Jay French, another orthopedic surgeon who specializes in treatment of injuries to the hand. Dr. French’s diagnosis, as set forth in his report, was that claimant had “a right distal radius fracture from which she has recovered, but a persistent ulnar styl-oid fracture non-union.” He opined “that her current symptoms [of pain] were related to the ulnar styloid non-union.” He recommended injections at the base of the ulnar styloid at the site of the non-union in an effort to possibly help relieve her symptoms. He further recommended that if the injections failed, claimant should submit to a surgical procedure to either remove the ulnar styloid non-union or fix the fracture with a tension band technique. Dr. French concluded his report by assessing claimant with a ten percent right upper extremity impairment.

Claimant returned to Dr. George on April 28, 2000 complaining that she was unable to work due to the pain she was experiencing. During that visit, she advised Dr. George that she had sought a second opinion from Dr. French. After reviewing Dr. French’s report, Dr. George agreed that the suggested steroid injections might relieve some of claimant’s symptoms, but disagreed with Dr. French’s recommendation to perform the ulnar styloid fragment removal surgery. Dr. George completed a cortisone injection into claimant’s wrist as suggested, and then referred claimant to her family physician, Dr. Mark James, for future injections. Claimant then began receiving cortisone injections from Dr. James, as needed, at her expense.

| ¿According to claimant’s testimony, when Dr. George refused to perform the surgery suggested by Dr. French, she, her husband, and her store manager attempted to contact Wal-Mart’s claims adjuster, Kristan Sattler, who was employed by Claims Management, Inc., to request that Wal-Mart approve the treatment recommended by Dr. French. However, they never received a response to their phone calls and messages. At that point, claimant sought assistance from an attorney.

Once retained, counsel for claimant sent Ms. Sattler a letter dated September 6, 2000 requesting a copy of claimant’s medical records, a copy of claimant’s statement, a copy of the accident report, copies of claimant’s check stubs or earnings records, and her calculation of claimant’s average weekly wage and compensation rate. Most importantly, he specifically asked whether the suggested treatment by Dr. French would be approved. Ms. Sattler responded by letter dated September 7, 2000 wherein she requested his taxpayer identification number for tax purposes concerning any attorney fee payments, but was non-responsive to any of his above requests. Counsel for claimant then sent a second letter to Ms. Sattler dated September 22, 2000, essentially re-urging his initial requests. After again receiving no response to his request, he sent a third letter, on October 12, 2000, requesting authorization of the recommended treatment or alternatively, reasons for non-approval. In the third letter to Ms. Sattler, counsel for claimant specifically stated, “Please authorize the treatment plan. If you are not authorizing the treatment plan, please state each and every reason you have for non-approval. If you are contesting medical necessity please ask for the appointment of an IME.”

When Ms. Sattler failed to respond to the third letter, claimant filed a form 1008 on December 4, 2000, requesting authorization of the medical treatment recommended by Dr. French and assessment of penalties and attorney’s fees against the employer. On August 14, 2001, Wal-Mart filed a motion to compel | Band request for independent medical examiner based on the differing medical treatment opinions of Dr. French and Dr. George, and a motion in limine to exclude any medical evidence offered by Dr. F. Allen Johnston. Claimant had obtained an evaluation by Dr. Johnston on July 28, 2001, (at her own expense) after Dr. George released her to return to work while she was still experiencing pain. Dr. Johnston’s recommendation was that she schedule an excision of non-union ulnar styloid.

Dr. Kathleen Robertson, an orthopedic hand specialist at Tulane University, was selected by the OWC judge and agreed upon by the parties to perform the independent medical examination. The motion in limine was denied.

Based on her examination of claimant and review of the medical records, Dr. Robertson concluded that claimant “would benefit from some type of surgical intervention for the ulnar-sided pain at the nonunion site.” She also concluded that claimant had developed adherence of her scars from the external fixator device, which she suggested could be improved with surgical release. Dr. Robertson also recommended that claimant “have the ulnar styloid non-union addressed, since this is [claimant’s] most painful area.”

After several continuances, trial was held on January 17, 2002. At trial, the parties entered into the following stipulations:

1. That on September 20, 1999, claimant suffered an injury to her right wrist or right upper extremity following a fall, while in the course and scope of her employment with Wal-Mart.

2. That Wal-Mart concedes that the procedures recommended by Dr. French are reasonable and agrees to the procedures.

At the conclusion of the trial, the record was left open for the taking of additional evidence; thereafter, judgment was rendered on February 8, 2002. The OWC awarded claimant $4,000.00 in penalties and $10,000.00 in attorney’s fees, finding that Wal-Mart was arbitrary and capricious in its handling of Luper’s claim. The judgment further declared that claimant was entitled to change her choice of physician to Dr. Robertson and was entitled to the treatment recommended by Dr. Robertson.

Wal-Mart appeals, challenging: (1) the finding that it was arbitrary and capricious for failing to authorize a change of physician; (2) the finding that Wal-Mart is responsible for Dr. Johnston’s medical bill; (3) the assessment of a $2,000.00 penalty for its failure to timely pay Dr. James’ medical bill; (4) the assessment of a $2,000.00 penalty for failing to timely pay Dr. Johnston’s medical bill; and (5) the award of attorney’s fees. Claimant answered the appeal, requesting an increase in the attorney’s fees award to reflect the additional fees incurred in defending this appeal.

DISCUSSION

FINDING THAT WAL-MART WAS ARBITRARY AND CAPRICIOUS IN FAILING TO AUTHORIZE A CHANGE OF PHYSICIAN (Assignment of Error No. 1)

In its first assignment of error, Wal-Mart challenges the factual finding by OWC that it was arbitrary and capricious in refusing to allow claimant to change her choice of physician to Dr. French, the physician to whom Wal-Mart had Preferred her. As set forth above, the OWC awarded claimant $4,000.00 in penalties and $10,000.00 in attorney’s fees for Wal-Mart’s “arbitrary and capricious handling of Ms. Luper’s claim.” In the reasons for judgment, outlining the arbitrary and capricious behavior by Wal-Mart, the OWC judge specifically cited Wal-Mart’s refusal to authorize the change of physician.

Pursuant to LSA-R.S. 23:1121(B), the employee has the right to select one treating physician in any field or specialty. After his initial choice of physician, the employee is required to obtain prior consent from the employer or his workers’ compensation carrier for a change of treating physician within that same field or specialty. Additionally, LSA-R.S. 23:1121(C) provides that when the employer refuses to consent to the requested change of physician and the OWC determines that the refusal was arbitrary and capricious or without probable cause, the employer or insurer shall be liable to the employee for reasonable attorney’s fees related to the dispute. Washington v. Lyon’s Specialty Company, 96-0263, pp. 7-8 (La.App. 1st Cir.11/8/96), 683 So.2d 367, 373, writ denied, 96-2944 (La.1/31/97), 687 So.2d 408. A determination of whether an employer has been arbitrary or capricious, and subject to an award of attorney’s fees, is a question of fact and is subject to the manifest error standard of review. See Kirn v. East Jefferson Hospital, 96-0838, p. 10 (La.App. 1st Cir.2/14/97), 691 So.2d 127, 133.

The evidence shows that claimant, her husband, and her store manager attempted to contact Ms. Sattler by placing numerous phone calls and leaving messages for her in an effort to obtain Wal-Mart’s approval of the treatment | srecommended by Dr. French. Despite their attempts, Ms. Sattler failed to respond to their phone calls and messages. When claimant’s efforts seemed fruitless, claimant sought help from an attorney. However, even after her attorney became involved and attempted to obtain an answer to her request to change physicians, Sattler failed to provide any meaningful response to three letters he sent to her. An employer or insurer may not proceed with an attitude of indifference to the injured worker’s situation. Kirn, 96-0838 at p. 10, 691 So.2d at 133.

In finding that Wal-Mart was arbitrary and capricious in its refusal to respond to claimant’s request to change physicians, the OWC judge stated:

[T]he Court notes that Wal-Mart conceded at trial that as of April 2000 a medical dispute had arisen over whether future surgery was warranted. Wal-Mart attempts to argue that this recommendation was reasonably controverted by Dr. George’s opinion that surgery was not warranted and that his opinion should be given the greatest weight as the treating physician.
However, the uncontroverted testimony indicates that Ms. Luper and her store manager both attempted to have the treatment with Dr. French approved and a follow-up appointment set with Dr. French but the adjuster would not return their calls. There is nothing in the Act which prevents a Claimant from seeking actual treatment with an employer’s choice of physician. More importantly, Ms. Luper was forced to retain an attorney due to Wal-Mart’s inaction.
Counsel for Ms. Luper faxed three letters to the adjuster for Wal-Mart. The adjuster testified by deposition taken after the trial that she only received the September 6th, 2000, correspondence; and she admits that even though the letter specifically requested approval for the treatment recommended by Dr. French, she only responded by sending a form letter requesting counsel’s tax payer ID number. Her testimony that she did not receive the September 22nd, 2000, or October 12th, 2000, correspondence is self-serving at best. Given that copies of these.letters with fax confirmation sheets introduced at trial indicate they were successfully transmitted to the adjuster’s telephone numbers, the Court finds that her testimony is not credible.
The Court also finds that Wal-Mart was arbitrary and capricious in withholding consent to allow Ms. Luper to change physicians to Dr. French under section 1121(C). As further evidence of Wal-Mart’s mishandling of Ms. Luper’s claim, Wal-Mart attempts to argue that even after counsel’s repeated requests for an independent medical exam regarding the necessity for further surgery, it is somehow Ms. Luper’s fault in not applying for the IME herself since any party may apply under the Act.
| ¡/This overlooks the fact that counsel’s request for Wal-Mart to obtain another surgical opinion beginning in September of 2000 were met with total silence and inaction until Wal-Mart decided to apply for the IME themselves in August of 2001 based on the exact same situation that existed in April of 2000; namely, the contradictory medical opinions of Dr. George and Dr. French. This almost yearlong delay in requesting a third opinion regarding surgery ultimately resulted in delays in getting Ms. Luper’s case to trial.
This argument also overlooks the fact that regardless of who requested the IME, the employer or their insurer is responsible for all costs associated with the examination. Thus, once the request was made by Ms. Luper’s counsel, it was incumbent upon Wal-Mart to respond in some form or fashion which was never done.

Under these circumstances, we find no manifest error in the determination that Wal-Mart was arbitrary and capricious in withholding its consent to claimant’s request for a change in physicians from Dr. George to Dr. French. See Livaccari v. Alden Engineering Service, 2000-0526, pp. 9-10 (La.App. 1st Cir.3/21/01), 785 So.2d 915, 920-921, wherein the court affirmed an award of attorney’s fees where claimant sought consent in writing on three occasions and presented evidence of his treating physician’s unwillingness to continue treating him, but employer nonetheless withheld consent to plaintiffs requested change in physician.

We find no merit to this assignment.

FINDING THAT WAL-MART IS RESPONSIBLE FOR DR. JOHNSTON’S MEDICAL BILL (Assignment of Error No. 2)

In this assignment of error, Wal-Mart challenges the OWC judge’s finding that it is responsible for payment of Dr. Johnston’s medical bill, citing LSA-R.S. 23:1121(D), which allows claimant to obtain a second medical opinion at her own cost. As set forth in LSA-R.S. 23:1121(D):

After all examinations have been conducted but prior to any order directing the injured employee to return to work, the employee shall be permitted, at his own expense, to consult with and be examined by a physician of his own choosing. Such report shall be considered in addition to all other medical reports in determining the injured employee’s fitness to return to work. Should disagreement exist, after such consultation and examination, as to the fitness of the |inemployee to return to work, the provisions of R.S. 23:1123 shall be followed.

Claimant argues that LSA-R.S. 23:1121(D) is inapplicable herein because the purpose of her visit with Dr. Johnston was to determine what more could be done to reheve her symptoms, not to determine whether or not she was fit to return to work as set forth in LSA-R.S. 23:1121(D). In support of her argument, claimant notes that while her visit with Dr. Johnston was on July 23, 2001, the last time she had seen Dr. George was in September of 2000, nearly eleven months earlier. Since claimant’s request to follow up treatment with Dr. French after her March of 2000 visit was either refused or ignored, the only treatment she was receiving at the time to relieve her pain was cortisone injections from Dr. James.

In determining that Wal-Mart was responsible for Dr. Johnston’s medical bill, the OWC judge found that the statute was designed to prevent doctor shopping and that the facts as they existed at the time of claimant’s visit with Dr. Johnston did not squarely fit within the language of LSA-R.S. 23:1121(D). The OWC judge further found that Wal-Mart’s inaction in either granting or denying claimant’s request for further treatment for the period at issue, ie., approximately sixteen months, amounted to “essentially a termination of her medical benefits.” We agree.

Claimant’s testimony at trial revealed the purpose of her appointment and evaluation by Dr. Johnston, as follows:

Q. Why did you want to go to a doctor at that point?
A. Because I was trying to see what other options was open that could be done for my arm.
Q. Why didn’t you go back to Dr. George?
A. He said he had nothing else to offer me.
Q. How about Dr. French?
A. Wal-Mart wouldn’t let me go back to see Dr. French.

| n Louisiana Revised Statute 23:1121(D) allows injured claimants to seek and consult with physicians of their choice in order to determine “fitness to return to work.” The evidence clearly shows that claimant did not seek the services of Dr. Johnston for the purpose of returning to work, but rather to address the continuing problems she was having with her arm. Under the circumstances, we find no error in the determination that Wal-Mart was responsible for Dr. Johnston’s medical bill.

This assignment lacks merit.

ASSESSMENT OF $2,000.00 PENALTY AGAINST WAL-MART FOR FAILURE TO TIMELY PAY DR. JAMES’ MEDICAL BILL (Assignment of Error No. 3)

Wal-Mart next assigns error to the OWC judge’s assessment of a $2,000.00 penalty against it and in favor of claimant for Wal-Mart’s failure to timely pay Dr. James’ medical bill, contending that the bill was reasonably controverted. Dr. James, claimant’s family physician, provided cortisone injections to claimant as recommended by Dr. George, a physician specializing in hand orthopedics.

The employee shall have the right to select one treating physician in any field or specialty. Leday v. Health Care Options, 2001-1595, p. 7 (La.App. 3rd Cir.4/17/02), 824 So.2d 389, 394. The employee, however, is not required to obtain approval for a change to a treating physician in another field or specialty. Leday, 2001-1595 at p. 8, 824 So.2d at 394. Thus, claimant’s choice to receive the injections from Dr. James, rather than Dr. George, is certainly permissible as the two practice in different fields of specialty.

Wal-Mart, however, contends that claimant failed to submit sufficient documentation evidencing any expenses for which claimant is entitled to reimbursement. In ruling, the OWC judge relied on a bill, itemizing Dr. James’ expenses, introduced by claimant at trial. The evidence introduced in the record further shows that Dr. James’ bill was faxed to counsel for Wal-Mart and received on May 20, 2001, according to the fax confirmation sheet. Wal-Mart’s claims | ^adjuster testified she did not receive that information. The OWC judge found the claimant’s evidence more credible. The trial court’s credibility determinations are entitled to great weight and will not be disturbed on appeal absent manifest error. Schexnayder v. Exxon Pipeline Co., 2001-1236, p. 6 (La.App. 5th Cir.3/13/2002), 815 So.2d 156, 160. The OWC judge found that “[a]s of that date, Wal-Mart had the duty to either pay the expenses for the injections or investigate the medical necessity and charges. Since neither was done, Ms. Lu-per is entitled to a penalty in the amount of $2,000.00 under Louisiana Revised Statute 23:1201(F), plus attorney’s fees.” On review, we find no error.

The record demonstrates that Wal-Mart failed to take any action to reasonably controvert the expenses attributable to the cortisone injection treatment provided by Dr. James. Accordingly, we find no error in the OWC judge’s award of penalties against Wal-Mart for its failure to timely pay Dr. James’ medical bill.

This assignment lacks merit.

ASSESSMENT OF $2,000.00 PENALTY FOR FAILURE TO TIMELY PAY DR. JOHNSTON’S MEDICAL BILL (Assignment of Error No. 4)

Wal-Mart also challenges the OWC judge’s assessment of a separate $2,000.00 penalty against Wal-Mart and in favor of claimant for Wal-Mart’s failure to timely pay Dr. Johnston’s medical bill, claiming again that the bill was reasonably controverted.

Claimant introduced proof of Wal-Mart’s receipt of Dr. Johnston’s medical bill and records on August 1, 2001. While Wal-Mart does not deny receipt of Dr. Johnston’s bill, it claims that because this expense was reasonably controverted, 113“on the grounds that his evaluation was sought after Dr. George released the Claimant to return to work,” Wal-Mart is exempt from any assessment of penalties pursuant to LSA-R.S. 23:1201(F)(2).

While we ultimately agree herein with the OWC judge’s determination that Wal-Mart is responsible for payment of Dr. Johnston’s medical bill, we find that Wal-Mart reasonably controverted payment of the bill, based on its reliance on LSA-R.S. 23:1121(D), as discussed in the previous assignment. For these reasons, the assessment of the $2,000.00 penalty for Wal-Mart’s failure to timely pay Dr. Johnston’s medical bill is reversed.

AWARD OF ATTORNEY’S FEES (Assignment of Error No. 5 and Answer to Appeal)

Finally, Wal-Mart challenges the OWC judge’s award of attorney’s fees, claiming that the award of $10,000.00 is excessive. As set forth above, we agree that Wal-Mart’s actions (or lack thereof) in refusing to address claimant’s request to change treating physicians in order to obtain the recommended treatment constitutes arbitrary and capricious behavior. Thus, pursuant to LSA-R.S. 23:1121(0), claimant was entitled to an award of reasonable attorney’s fees.

Moreover, Wal-Mart’s failure to timely pay Dr. James’ medical bill constitutes additional arbitrary and capricious behavior for which LSA-R.S. 23:1201(F) also justifies an award of attorney’s fees.

In her reasons for judgment, the OWC judge based her award on what she termed a “constructive discontinuance of medical benefits” by Wal-Mart. After a thorough review of the record, and considering the particular facts and circumstances presented herein, we cannot say that the award of attorney’s fees rendered herein is particularly abusive. As such, the attorney’s fee award of $10,000.00 is affirmed.

| uMoreover, we find merit to claimant’s answer to appeal requesting that claimant be awarded additional attorney’s fees to encompass the costs of defending this appeal. Thus, we increase the award of attorney’s fees from $10,000.00 to $Í2,500.00.

CONCLUSION

For the above and foregoing reasons, the portion of the February 8, 2000 judgment of the OWC assessing a $2,000.00 penalty against Wal-Mart for failing to timely pay Dr. Johnston’s medical bill is reversed. The portion of the judgment awarding claimant attorney’s fees is amended to increase the award from $10,000.00 to $12,500.00. All other portions of the judgment are affirmed. Costs of this appeal are assessed against defen-dani/appellant, Wal-Mart Stores.

AFFIRMED IN PART, REVERSED IN PART, AMENDED IN PART, AND, AS AMENDED, AFFIRMED.

      . Although claimant had health insurance available through her husband’s employment, she was responsible for paying one hundred percent of the premium as her husband was disabled. Claimant was also responsible for a co-payment.

      . The OWC left the record open to allow Wal-Mart to supplement with the deposition of the claim representative, Kristan Sattler, and other documentary evidence. Although both sides’ briefs refer to the deposition of Kristan Sattler, the record on appeal does not contain the deposition. As the appellant, Wal-Mart is charged with the responsibility of completeness of the record for review, and the inadequacy of the record is imputable to the appellant. Carter v. Barber Brothers Contracting Co., Inc., 623 So.2d 8, 10 (La.App. 1st Cir.), writ denied, 629 So.2d 1180 (La.1993). The appellate court presumes that the trial court's ruling is correct if an inadequate record is transmitted. Succession of Populus, 95-1469, p. 4 (La.App. 1st Cir.2/23/96), 668 So.2d 747, 749.

      . Although LSA-R.S. 23:1121(C) authorizes only the award of attorney's fees, not penalties, for arbitrary and capricious refusal to authorize a change in physicians, the OWC's award of penalties and attorney’s fees herein was also based on the findings that Wal-Mart had violated its duties under LSA-R.S. 23:1201(F) and 23:1201.2 based on its failure to provide payment of medical expenses incurred. Revised Statute 23:1201(F) specifically authorizes the assessment of a penalty against the employer or insurer for failure to pay medical benefits due where the claim was not reasonably controverted.

      . Louisiana Revised Statutes 23:1201(F) provides for the assessment of penalties and attorney’s fees for each day that "all compensation and medical benefits remain unpaid.” It also provides an exemption from the assessment of penalties if "the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.”


author: 2MCCLENDON, J.

text:
    John G. ROBLES v. EXXONMOBILE (OWC9)
    No. 2002 CA 0854.
    Court of Appeal of Louisiana, First Circuit.
    March 28, 2003.

      Paul J. Politz, Kristi Stroebel Burnt-horne, New Orleans, Counsel for Defendant/Appellee, ExxonMobile.
    John G. Robles, Cut Off, Plaintiff/Appellant In Proper Person.
    Before: FOIL, McCLENDON, and KLINE, J.J.

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

   2MCCLENDON, J.

On appeal in this workers’ compensation case, the claimant asserts the workers’ compensation judge (WCJ) erred in denying his motion to transfer the case to another venue and erred in granting summary judgment in favor of the employer and dismissing his lawsuit. For the following reasons, we affirm.

On March 6, 2001, Dr. Douglas Babel diagnosed John G. Robles with central serous retinopathy involving the right eye. On August 27, 2001, Robles filed a disputed claim for compensation in District 9 of the Office of Workers’ Compensation against his employer, ExxonMobile, alleging he suffered from “right eye retina leakage due to high stress levels.”

ExxonMobile answered "with a general denial and, shortly thereafter, filed a motion for summary judgment. Subsequently, Robles filed a request for a change of venue from District 9 in Houma, Louisiana to District 8 in New Orleans, Louisiana, asserting he no longer worked in close proximity to the office of District 8.

After hearing the matters, the WCJ rendered judgment denying Robles’ motion to transfer venue. The WCJ also granted summary judgment in favor of ExxonMo-bile and dismissed Robles’ claims against it. Robles appeals.

Initially, Robles contends the WCJ erred in denying his motion to transfer his case from District 9 to District 8. Robles asserts that, after he filed his disputed claim for benefits, ExxonMobile transferred him from Grand Isle to New Orleans. He asserts that, because of this transfer, New Orleans is now the more convenient venue for him.

LLSA-R.S. 23:1310.4 governs the situs or venue of workers’ compensation proceedings. It provides, in pertinent part: § 1310.4. Place hearings to be held

A. (1) At the time a claim is initiated with the director, the claimant shall elect the situs of necessary hearings by the workers’ compensation judge.
(2) If the claimant is a domiciliary of the state of Louisiana, he shall be required to elect either the judicial district of the parish of his domicile at the time he sustained his injury, the judicial district of the parish where the injury occurred, or the judicial district of the parish of the principal place of business of the employer.
B. After the election has been made as provided above, all future hearings affecting the claimant’s case shall be held in the judicial district so designated unless the workers’ compensation judge, upon agreement by the claimant and the employer, shall transfer such cause for hearing to any other judicial district agreed upon. In addition, hearings may be held in any location if the workers’ compensation judge determines that good cause has been shown.

It is undisputed that Robles’ alleged injury occurred in Grand Isle, which is located in District 9. Also, at the time of the injury he was domiciled in Cut Off, Louisiana, which is located in District 9. He filed his claim in District 9, a proper situs under the statute. After the situs is selected by the claimant, the statute provides for a change only if both the employer and the employee agree to the change or the WCJ finds good cause to change the location of the future hearings. Herein, the employer did not agree to the change. Therefore, to prevail, Robles had to establish “good cause” to change the location of the hearings. In seeking a change of venue, Robles relied solely on the fact that he was transferred to New Orleans, while admitting that he continued to reside in Cut Off. Considering this evidence, we find no error on behalf of WCJ in denying the claimant’s motion for a change in venue.

4 Robles further asserts the WCJ erred in granting summary judgment in favor of ExxonMobile. Summary judgment procedure is favored. LSA-C.C.P. art. 966 A(2). A motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966 B, C(l). Appellate review of summary judgment is de novo, utilizing the same criteria that guide the trial, court’s grant of the judgment. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, p. 5 (La.2/29/00), 755 So.2d 226, 230.

When a motion for summary judgment is made and supported as provided by law, an adverse party may not rest on the mere allegations or denials of his pleading. His response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, will be rendered against him. LSA-C.C.P. art. 967; Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, pp. 7-8 (La.2/29/00), 755 So.2d 226, 231.

If the moving party will not bear the burden of proof at trial on the matter, that party’s burden on a motion for summary judgment is to point out an absence of factual support for one or more essential elements of the adverse party’s claim, action or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. LSA-C.C.P. art. 966 C(2).

LSA-R.S. 23:1031 A provides compensation if an employee sustains personal injury as the result of an accident arising out of and in the course of employment. Daspit v. Southern Eagle Sales & Services, Inc., 98-1685, p. 3 (La.App. 4 Cir. 1/20/99), 726 So.2d 1079, 1081, writ denied, 2001-1192 (La.6/15/01), 793 So.2d 1245. Therefore, to recover workers’ compensation benefits, a claimant must establish a causal link between the work-related accident and his injury. Rhodes v. Terrebonne Parish Sheriff, 2001-2279, p. 3 (La.App. 1 Cir. 6/21/02), 822 So.2d 114, 115.

ExxonMobile placed in the record on the motion for summary judgment a report authored by Dr. Babel in which he stated, “[Central serous retinopathy] is more common in individuals under high stress conditions, though no study has shown that this is causative.” In another report, Dr. Babel stated that stress “has not been shown to be causative” of this condition. Additionally, Dr. Gerald Gui-dry, an ophthalmologist who treated Robles, opined that Robles’ condition was not caused by stressful conditions. Because ExxonMobile did not bear the burden of proof at trial, this evidence was sufficient to show an absence of factual support for Robles’ claim and to shift the burden of going forward to Robles.

At the hearing on the motion for summary judgment, Robles, who appeared in proper person, filed no evidence in opposition to ExxonMobile’s motion for summary judgment to show that he could create a genuine issue of material fact for trial as to causation, an essential element of his claim. Rather, Robles argued that other expert evidence would prove causation at trial. However, merely referring to an expert will not defeat a properly supported motion for summary judgment. See Edwards v. Raines, 35,284, p. 8 (La.App. 2 Cir. 10/31/01), 799 So.2d 1184, 1189. Thus, Robles failed to carry his burden of proving a causal relationship between the alleged accident and his condition. Therefore, summary judgment was appropriate. Considering our disposition of this issue, the other issues raised by Robles on appeal are pretermitted.

| ^Accordingly, the judgment of the WCJ is affirmed. Costs are assessed to John G. Robles.

AFFIRMED.


text:
    David Wayne HURST v. RAILSERVE, INC.
    No. 2002 CA 0929.
    Court of Appeal of Louisiana, First Circuit.
    March 28, 2003.

      Benjamin N. Gibson, Baton Rouge, Counsel for Plaintiff/Appellant, David Wayne Hurst.
    Stephen H. Vogt, Baton Rouge, Counsel for Defendant/Appellee, Railserve, Inc.
    Before: FOIL, McCLENDON, and KLINE, JJ.

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

   2MCCLENDON, J.

This appeal arises from an action for workers’ compensation benefits that .were denied. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On January 12, 2000, David Wayne Hurst filed his disputed claim for workers’ compensation benefits with the Office of Workers’ Compensation Administration (hereinafter “OWC”), against his employer, Railserve, Inc. (“Railserve”), alleging that he suffered an accident, during the course and scope of his employment with Railserve, on September 1, 1999, resulting in permanent disability to his foot.

Trial was held on September 20, 2001, wherein the OWC judge determined that plaintiff committed fraud based on intentional and false statements made to his treating physician for the purpose of obtaining workers’ compensation benefits, thus forfeiting the rights to all benefits under the Workers’ Compensation Act as might otherwise be awarded. The judgment, signed on October 12, 2001, forms the basis of this appeal.

In his one assignment of error, plaintiff urges that the OWC judge was manifestly erroneous in finding that he committed fraud under LSA-R.S. 23:1208.

DISCUSSION

An employee who sustains a personal injury by accident arising out of and in the course and scope of his employment is entitled to collect workers’ compensation from his employer, unless he is otherwise eliminated from benefits under the provisions of Title 23. LSA-R.S. 23:1031(A). “Accident” means an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than |3simply a gradual deterioration or progressive degeneration. LSA-R.S. 23:1021(1). The employee who claims a right to collect workers’ compensation benefits has the burden of proving a work-related accident by a preponderance of the evidence. Bolton v. B E & K Construction, 2001-0486, pp. 7-8 (La.App. 1 Cir. 6/21/02), 822 So.2d 29, 35; Catchot v. RAMCO Construction, 2000-1922, pp. 2-3 (La.App. 1 Cir. 11/14/01), 818 So.2d 105, 107, citing Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992).

LSA-R.S. 23:1208 provides in relevant part:

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

This statute applies to any false statement or misrepresentation made specifically for the purpose of obtaining workers’ compensation benefits. This broadly-worded statute encompasses any false statements or misrepresentations made to anyone, including the employer, physicians or insurers, when made willfully or deliberately for the purpose of obtaining benefits. It contains no requirement that an employee be put on notice of the consequences of making such false statements or misrepresentations. Hull v. Fluker Farms, 2000-0757, pp. 5-6 (La.App. 1 Cir. 5/11/01), 787 So.2d 535, 539, writ denied, 2001-2291 (La.11/16/01), 802 So.2d 612, citing Resweber v. Haroil Construction Company, 94-2708, 94-3138, pp. 1-2, 7 (La.9/5/95), 660 So.2d 7, 9, 12.

The only requirements for forfeiture of workers’ compensation benefits under section 1208 are that: (1) there is a false statement or | representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment. Hull v. Fluker Farms, 2000-0757 at p. 6, 787 So.2d at 539.

The issue of whether an employee forfeited his workers’ compensation benefits is one of fact, which is not to be reversed on appeal, absent manifest error. Hull v. Fluker Farms, 2000-0757 at p. 6, 787 So.2d at 539. Before an appellate court may reverse the factual determinations of the OWC judge, it must find from the record a reasonable factual basis does not exist for the findings, i.e., that the findings are clearly wrong or manifestly erroneous. Where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Hull v. Fluker Farms, 2000-0757 at p. 6, 787 So.2d at 539-40, citing Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 883 (La.1993).

Plaintiff testified at the trial of this matter that he was employed by Railserve as a conductor and locomotive engineer beginning in March 1998. His duties included moving and switching out railroad cars at the BASF plant in Geismar. Plaintiff testified that he first hurt his foot on September 1, 1999, when he stepped down from a railroad car onto rocks along the railroad tracks and felt a sharp pain in his left foot. He testified that he did not report this incident and continued to work. Plaintiff stated he was injured a second time on September 19, 1999, when he stepped off a railcar into a hole along the tracks. According to plaintiff, he reported this incident to his supervisor, James Anderson, who told him to fill out an accident report at the end of his shift. Plaintiff testified that he did not do so because he cannot read or write. Plaintiff stated he went to the emergency room the | .^following day in connection with this injury. Plaintiff then testified that he injured his foot a third time on November 11, 1999, when he was again stepping off a railcar, stating that his knees buckled and the pain was a lot worse than the other two times. Plaintiff stated that at the end of his shift that day, he could not walk and that an engine had to be brought to him to bring him to the work trailer.

Plaintiff further testified that his wife called Mr. Anderson the next morning to tell him that plaintiff was going to the hospital for medical treatment. Plaintiff testified that he told his treating physician, Dr. Sandra Mundine, that the day before, at work, he had stepped off a railcar into the rocks and that he felt a sharp pain in his foot. Dr. Mundine diagnosed plantar fascititis.

Plaintiff then stated that on a subsequent visit, he brought a piece of paper to Dr. Mundine that he assumed was a workers’ compensation form for benefits. Dr. Mundine’s office filled it out and he signed it.

Plaintiff was referred to Dr. Darryl Peterson, an orthopedic specialist, for a second opinion, and eventually had a surgical release of his plantar fascia by Dr. Janet Lewis.

On cross-examination, plaintiff testified that he told all his doctors about all three accidents. He further testified that although he did not report the first accident to Mr. Anderson, he reported the other two. He testified that all three of his supervisors knew he had been injured on the job.

In this regard, James Anderson, one of plaintiffs supervisor’s at the Geismar plant, was called as a witness. Anderson testified that plaintiff did not report any of the three accidents to him and that it was the policy of Railserve to have all accidents, no matter how minor, reported. Also, no |fiother employees approached Anderson about plaintiff being hurt at work. Plaintiff did approach Anderson in September or October of 1999 to ask him what disability programs Railserve offered. Plaintiff was referred to Tim Pul-len, the assistant vice-president of human resources in Atlanta, who faxed to Anderson a form for short-term disability benefits. When he gave the form to plaintiff, Anderson told plaintiff they were for short-term disability benefits.

Jason Lambert, another supervisor to plaintiff and also his neighbor, testified that plaintiff told him he was hurt, but never said it was because of his job. Plaintiff never reported an accident to him. Lambert also stated that any accident, no matter how small, was to be reported.

Joseph McIntosh also worked for Rail-serve and was another one of plaintiffs supervisors. He did not recall anything about the plaintiffs alleged accidents. He stated that if an engine was sent to pick up plaintiff, he would have known and reports would have had to be written. McIntosh had no reason to believe that plaintiffs injury was from his job and never heard any employee say plaintiff was injured on the job. McIntosh also testified that, on prior occasions, plaintiff had been given help filling out paperwork.

Tim Pullen testified by deposition. In 1999, he was the service manager for the Geismar location of Railserve. On November 18, 1999, Pullen was contacted by Anderson that plaintiff was seeking short-term disability benefits and a form and letter were sent out to be completed by plaintiff. Plaintiff then contacted Pullen after November 20, 1999, asking him if he would receive his bonus. Pullen told plaintiff that the bonuses were dependent on whether there had been any human error incidents |7resulting in property damage and, since his was an injury situation, he would receive his bonus.

Dr. Sandra Mundine, a podiatrist, also testified by deposition. She first saw plaintiff on November 12, 1999. At that time, plaintiff told her that his left foot had been hurting for about eight months. Dr. Mundine stated:

“The only thing that I can remember that was significant about him was that when we talked about his job and had this injury occurred on the job, and we even talked about a workman’s comp claim, and he said that— and I am going to quote, he said that he was not going to file a workman’s comp because with his job you get a bonus if you don’t file any claims.”

Dr. Mundine told plaintiff that she did not think that was correct and suggested that he talk to his representative.

Dr. Mundine also remembered another visit after plaintiff discovered his job was no longer available to him and that his short-term disability benefits would be terminated. When plaintiff left her office, he walked with a noticeable limp. When he came back that afternoon, to tell Dr. Mun-dine not to release his medical records to his employer, he was angry and was walking without a limp or any type of protective gait at all.

Following review of the exhibits, including the medical testimony, the OWC judge made the following determinations:

The first issue that I’m going to address is [the] all important one of whether or not Mr. Hurst sustained an accident or injury while in the course and scope of his employment. I am of the opinion he did not sustain an accident in the course and scope of his employment, but that he did sustain an injury in the course and scope of his employment. I am of the opinion that he was predisposed to have the plantar fascititis problem, condition, and that the pretty much nature of his job of jumping on and off railroad cars made an asymptomatic condition symptomatic, and brought it to the forefront and then required treatment. As Dr. Mundine, I believe it was Dr. Mun-dine, | «stated in her deposition, once this kind of condition is made symptomatic i[t] rarely goes away. It’s something that you typically just have to learn to live with and try to avoid those conditions that will aggravate it; and his job is such that there would be no way to avoid it with the type of work that he did.
The next issue is the issue of nature and extent of disability. He would be entitled to Supplemental Earnings Benefits because nothing I’ve seen totally disables him from May 16th 2000 forward. They would get a credit week for week under 1225 for the short term disability. They have not only reasonably controverted the claim, however, the Court is convinced Mr. Hurst has committed a 1208 violation. He has committed fraud and misrepresentation before this Court for the purpose of obtaining benefits. Dr. Mundine’s testimony made it very clear. He actually had a discussion with her from the first day of his visit with her about Workers’ Compensation Benefits, and specifically told her he did not want to make a Workers’ Compensation Claim, because he was afraid it would keep him from getting a bonus. It was an unfortunate misunderstanding in his mind as to how the safety bonuses worked. I am of the opinion at a later [time] when it was discovered that was a mistake when he found out from Mr. Pull[en] that he would still get the bonus, that a Workers’ Comp claim didn’t have anything to do with the bonus, that he then started to spin the stories about accidents and having reported accidents. Had he simply stuck to the truth and the fact that his job caused him to have this problem and filed the claim on the up and up as a Workers’ Comp claim with the doctor and reported it to his reporter and told them that it was a Workers’ Comp claim, there would have been no problems. Instead he first tried to hide it from his employer as a Workers’ Comp claim, and then when he found out that it being a Workers’ Comp claim wouldn’t keep him from getting a safety bonus, he then turned around and tried to create one.

After a thorough review of the evidence presented, including the conflicting testimony, we find that there was a reasonable factual basis in the record upon which the trier of fact could have found that plaintiff was trying to create a workers’ compensation claim through willful and false misrepresentations, after initially trying not to create one. These actions clearly fall within the scope of LSA-R.S. 23:1208. Further, when there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, although an appellate court may feel its own evaluations and inferences are as I treasonable. Rosell v. ESCO, 549 So.2d 840, 844. Accordingly, we are unable to say the OWC judge erred in determining that Mr. Hurst committed fraud for the purpose of obtaining workers’ compensation benefits.

CONCLUSION

For the reasons assigned herein, the judgment of the Office of Workers’ Compensation is affirmed. All costs of this proceeding are to be borne by plaintiff/appellant herein, David Wayne Hurst.

AFFIRMED.

      . Plaintiff indicated on his disputed claim form that he did report the September 1, 1999 incident to his supervisor.

      . Plaintiff’s claim was not filed until after the third alleged accident.

      . This visit was before plaintiff’s visit with Tim Pullen, wherein plaintiff was allegedly told by Pullen that an on-the-job injury would not affect his bonus.