author: I .DOWNING, J. ^DOWNING, J.,

text:
    Bradley COLE, Individually and on Behalf of His Minor Child, Leah Ashton Cole and Denise Cole v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS.
    No. 2003 CA 2269.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2004.
    Writ Denied Oct. 29, 2004.

      Christopher C. McCall, Robert C. McCall, Lake Charles, Counsel for Plain-tifi/Appellee Bradley Cole, individually and on behalf of his minor child, Leah Ashton Cole and Denise Cole.
    John G. Morgan, L. Adrienne Dupont, W. Wayne Gaudin, Jr., Baton Rouge, Counsel for Defendant/Appellant State of Louisiana, Department of Public Safety and Corrections.
    Before: PETTIGREW, DOWNING and McClendon, jj.
   I .DOWNING, J.

The State of Louisiana, Department of Public Safety and Corrections (DPSC) appeals an adverse quantum judgment resulting from damages suffered by one of its prison guards, Bradley Cole, from an intentional battery inflicted during a training exercise. For the following reasons, we affirm.

PROCEDURAL HISTORY

This court had remanded the matter to the trial court in an unpublished opinion, Cole v. State, Through the Dept. of Public Safety and Corrections, 00-1222 (La.App. 1 Cir. 4/16/03), 844 So.2d 420 (unpublished), writ denied, 03-1330, 03-1349 (La.5/21/03), 845 So.2d 369, for a determination of Cole’s damages exclusive of those resulting from a head injury. We did this because the Louisiana Supreme Court had remanded the matter to this court with instructions for this court to re-assess the damage award exclusive of the amount apportioned for a closed-head injury. Cole v. State, Through the Department of Public Safety and Corrections, 01-2123 (La.9/4/02), 825 So.2d 1134.

On remand, the trial court reduced Cole’s general damage award by ten percent (10%) to exclude the damages attributable to his alleged head injury. The current judgment awards Cole $607,500.00 in general damages. The trial court did not reduce its awards for future medical expenses, lost wages or damages for loss of consortium.

The DPSC now appeals raising three assignments of error. It alleges that the trial court was manifestly erroneous in reducing the previously rendered judgment by only ten percent (10%) of the general damages award. It alleges that the trial court was manifestly erroneous in allowing testimony | .-¡about “anything other than the portion of the original judgment that was attributable to a closed head injury.” It alleges that the trial court was manifestly erroneous in casting the DPSC with costs since it was the prevailing party.

DISCUSSION

Additional Evidence on Remand

In its second assignment of error, the DPSC argues that the trial court erred in allowing testimony about any damages beyond those attributable to Cole’s alleged head injury. We disagree.

In Cole, 00-1222 at p. 2, 844 So.2d 420 (unpublished), we provided the following instruction to the trial court for the taking of additional evidence, as follows:

The trial court is instructed to allow the parties additional expert testimony relevant to the determination of the damages sustained by Cole exclusive of the closed head injury. The trial court, in its discretion, may allow additional testimony from Cole and his wife and additional medical examination of Cole relevant to the determination of damages.

DPSC sought writs to the Louisiana Supreme Court regarding this decree, which were denied in Cole, 03-1330, 03-1349 (La.5/21/03), 845 So.2d 369.

We have carefully reviewed the record, and we conclude that the trial court admitted evidence into the record within the confínes of our order. Under the law of the case doctrine, an appellate court ordinarily will not reconsider its own rulings of law on a subsequent appeal in the same case. Held v. Aubert, 02-1486, p. 17 (La.App. 1 Cir. 5/9/03), 845 So.2d 625, 639. We note, however, that where a prior disposition is clearly erroneous and will create a grave injustice, it should be reconsidered. Held, 02-1486 at p. 17, 845 So.2d at 639-40. Since we conclude that our prior ruling was consistent with the law and not erroneous, we decline to revisit our previous order.

|4We find no error in the trial court taking evidence to determine the extent of Cole’s damages exclusive of the alleged closed-head injury. We note that the DPSC had the same opportunity as Cole to present evidence to support its position and to rebut Cole’s, but did not do so. This assignment of error is without merit.

Damages Quantum

In its first assignment of error, the DPSC argues that since the original damage award was premised primarily on a finding of a closed-head injury, the trial court’s damage award on remand was excessive for injuries to Cole’s back and neck. We disagree.

The only expert to testify at the hearing on remand, Dr. Kevin Gorin, testified that Cole’s ultimate damages would be the same whether attributable to a closed-head injury or to Cole’s other seven diagnoses. He testified that patients who are depressed because they are in pain, as is Cole, “will display a similar cognitive se-quelae to those patients who may have suffered raw brain trauma .... ” He observed that “the ultimate end point is the same” whether the “physical, behavioral, and cognitive dysfunction” was caused by a closed-head trauma or otherwise. Dr. Go-rin testified, “He still presents the exact same way.”

Even so, after considering the evidence and reducing damages for the alleged head injury, the trial court’s oral reasons show that it “reduce[d] this award substantially by ten per cent. In other words, the $675,0000.00 in general damages [would] be reduced by $67,500.00.” The trial court left all other damage awards unchanged.

|sThe trier of fact is given much discretion in the assessment of damages. La. C.C. art. 2324.1. On appellate review, damage awards will be disturbed only when there has been a clear abuse of that discretion. Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La.1993). The initial inquiry must always be directed at whether the trial court’s award for the particular injuries and their effects upon this particular injured person is a clear abuse of the trier of fact’s much discretion. Emery v. Owens-Corporation, 00-2144, pp. 21-22 (La.App. 1 Cir. 11/9/01), 813 So.2d 441, 457, writ denied, 02-0635 (La.5/10/02), 815 So.2d 842; Reck v. Stevens, 373 So.2d 498, 501 (La.1979). In Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993) (citing Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976)), the court instructed that, “Only after such a determination of an abuse of discretion is a resort to prior awards appropriate and then for the purpose of determining the highest or lowest point which is reasonably within that discretion.”

Accordingly, we have reviewed the trial court’s award for the particular injuries and their effects upon this particular injured person. Under the circumstances of this ease, we conclude the trial court did not abuse its much discretion in setting Cole’s damages awards.

The record before us shows that Cole will endure a pain level of six to seven, occasionally down to a five, for the remainder of his life as a result of his injuries exclusive of the alleged head injury. A level five pain is one that cannot be ignored for more than thirty minutes at a time. A level seven pain makes it difficult to concentrate, interfering with sleep. At the beginning of his treatment, Cole’s pain was generally at a level of nine.

Cole has endured four surgeries: two neck surgeries including a fusion and two shoulder surgeries. Even so, apart from the chronic, severe pain, he | (¡suffers from depression, anxiety and social withdrawal. He suffers from impaired memory, impaired concentration, and impaired tolerance for interpersonal interactions.

Cole has reached maximum medical improvement, and he is unable to engage in gainful employment.

Cole’s regimen of medication includes a muscle relaxant, a headache medicine, medicine for the mechanical pain, an antidepressant, two membrane stabilizing agents for mood control and for treatment of neuropathic left-arm pain, and a medicine for additional control of depression as well as a sleep aid. The prognosis is that he will continue to need these medications. Dr. Gorin testified that none of these medications are specifically attributable to the alleged closed-head injury.

The DPSC fails to make any specific argument regarding any particular damage award. Rather, it argues that a reduction in the general damage award of $67,500.00 to reduce damages awarded for the alleged head injury was inadequate, thus an abuse of the trial court’s discretion. Based on the uncontradicted evidence in the record, however, that Cole’s damages were substantially the same whether caused by a closed-head injury or by other aspects of the intentional battery on him, the trial court could have decided not to reduce damages at all. Accordingly, we cannot conclude that the trial court abused its discretion in reducing the damages by the significant sum of $67,500.00. Nor can we say under the circumstances of this case that the amount of the damage award is abusively high.

The DPSC’s first assignment of error is without merit.

Costs

|vThe DPSC last argues that the trial court erred in assessing it with costs when it was the prevailing party. We are somewhat puzzled by DPSC’s claim that it is the prevailing party in that it is being cast in judgment. This matter was remanded to the trial court to determine a correct amount of damages, not for a reconsideration of the merits. La. C.C.P. art. 1920 gives the trial court discretion to tax costs “against any party as it may consider equitable.” While we do not have the benefit of the trial court’s reasons for taxing costs as it did, we see no special indication that the trial court abused its discretion by taxing costs to the party cast in judgment. This assignment of error is without merit.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court. Costs of this appeal are taxed to the State of Louisiana, Department of Public Safety and Correction in the amount of $1,628.17.

AFFIRMED.

McCLENDON, J., affirms in part and dissents in part and assigns reasons.

^DOWNING, J.,

specially concurring.

The supreme court’s conclusion that there was no evidence to support the finding of a closed head injury is premised upon the following definitions:

A closed head injury is defined as a head injury in which the scalp and the mucous membranes (of the mouth and nose) remain intact.

Cole v. State, Through the Department of Public Safety and Corrections, 01-2123, pp. 14-15 n. 2 (La.9/4/02), 825 So.2d 1134, 1144 n. 2. Footnote 2 cites, Attorneys’ Dictionary of Medicine and Word Finder, J.E. Schmidt, M.D. (2001) as the source of this definition.

A closed head injury is caused by an external blow to the cranium that may or may not be sufficient to fracture the skull. Head injuries are generally classified as either mild, moderate, or severe.

Cole, 01-2123 at p. 15 n. 3, 825 So.2d at 1144 n. 3. Footnote 3 cites, Lawyers’ Medical Cyclopedia of Personal Injuries and Allied Specialties, (4th Edition 2001).

Even in mild head injury cases, there is a transient loss of consciousness. In moderate head injuries, the period of unconsciousness may last up to one hour and neurological signs may appear. A patient suffering from a severe brain injury may suffer unconsciousness for several hours. Recovery is slow, and a return to consciousness may take from days to weeks. In cases of extremely severe brain injury, the patient suffers trauma to parts of the brain essential to life and shows severe neurologic abnormalities. Sometimes, in spite of all possible treatment, the patient dies within a few hours.

Cole, 01-2123 at p. 15, 825 So.2d at 1144. There is no reference to the source of this opinion.

|;>The requirement, stated above, of loss of consciousness to incur a head injury is critical because the supreme court states:

Our review of the record reveals that Cole’s presentations of history and complaints to the various doctors were internally inconsistent and inconsistent with the medical definition of a serious closed head trauma.

Cole, 2001-2123 at p. 15, 825 So.2d at 1145.

The problem is that the “medical definition of a serious closed head trauma,” used by the supremé court, requiring a loss of consciousness, is not in the trial record. An appellate court cannot review evidence that is not in the record. Willis v. Letulle, 597 So.2d 456, 464 (La.App. 1 Cir.1992). “Learned treatises,” are admissible “[t]o the extent called to the attention of an expert witness upon cross-examination or, in a civil case, relied upon by him in direct examination,” if “established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice.” La. C.E. art. 803(18). “An ‘adjudicative fact’ is a fact normally determined by the trier of fact.” La. C.E. art. 201(A). A party should be given an opportunity to be heard prior to the taking of judicial notice. La. C.E. art. 201(E).

The two treatises cited by the supreme court were not called to .the attention of an expert witness in any manner. It is doubtful that a doctor would consider a general treatise published for attorneys as a reliable authority. Further, the parties were not given an opportunity to be heard prior to or after the taking of judicial notice of these treatises. Finally, this writer sees no difference between an appellate court consulting these treatises or consulting a doctor outside of the record, which is clearly impermissible.

| aHowever, “[a]s an intermediate appellate court we are obligated to follow these instructions from the Louisiana Supreme Court.” Willis, 597 So.2d at 460.

L McCLENDON, J., affirms in part and dissents in part and assigns reasons.

Although a ten percent reduction appears to be low in the context of this case, based on Dr. Gorin’s uncontroverted testimony on remand that Mr. Cole’s damages were the same, regardless of the underlying cause, I cannot say that the ten percent reduction was an abuse of the trial court’s vast discretion. However, I do not believe that the general damage award can be reduced by ten percent without some reduction of the loss of consortium claims and the claims for future medicals. It is not reasonable to conclude that these damages exist in a vacuum separate from the award for general damages. Therefore I believe the trial court erred in failing to reduce the damages for loss of consortium and future medicals. I respectfully dissent from that part of the majority opinion.

      . The prior general damage award was for $675,000.00

      . The DPSC did not challenge the original damage award in its prior appeal.

      . Apart from the closed-head injury, Dr. Go-rin diagnosed Cole as suffering from multiple trauma, status post-cervical fusion, compensatory myofascial pain syndrome, left cervical radiculopathy, post-traumatic headaches, adjustment disorder with possible post-traumatic stress disorder, and diplopia, left eye.

      . With respect to future wages, the uncontro-verted testimony on remand established that Mr. Cole remains totally disabled, even without the head injury.


source: Caselaw Access Project

author: JjFITZSIMMONS, J.

license: Public Domain

text:
    Lowery M. THOMAS v. LOUISIANA CASINO CRUISES, INC.
    No. 2003 CA 1937.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2004.
    Writ Denied Oct. 29, 2004.

      John N. Samaha, Baton Rouge, Counsel for Plaintiff/Appellant Lowery M. Thomas.
    Murphy J. Foster, III, Melissa M. Shirley, Baton Rouge, Counsel for Defendant/Appellee Louisiana Casino Cruises, Inc.
    Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   JjFITZSIMMONS, J.

Plaintiff, Mr. Lowery M. Thomas, sued defendant, Louisiana Casino Cruises, Inc. (casino) for unlawful employment discrimination and prayed for damages. The casino filed a motion for summary judgment asserting that Mr. Thomas was not able to establish the essential elements of his cause of action, including the requirement to show that he was a “disabled person.” After a hearing, the trial court agreed. The court granted the summary judgment in favor of the casino and dismissed Mr. Thomas’ suit. Mr. Thomas appealed. We affirm.

Summary judgment procedure is “favored” and “is designed to secure the just, speedy, and inexpensive determination of every action .... ” La. C.C.P. art. 966 A(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Sanders v. Ashland Oil, Inc., 96-1751, p. 7 (La.App. 1 Cir. 06/20/97), 696 So.2d 1031, 1035, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. 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 as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966 B. The burden of proof on a motion for summary judgment “remains with the movant. However, if the movant will not bear the burden of proof at trial ..., the movant’s burden ... is to point out ... that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense.” La. C.C.P. art. 966 C(2). If the non-moving party then “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.” La. C.C.P. art. 966 C(2).

13An “otherwise qualified disabled person shall” not “be subjected to discrimination in employment” based on “a disability.” La. R.S. 23:323 A. An “ ‘Otherwise qualified disabled person’ means a disabled person who, with reasonable accommodation, can perform the essential functions of the employment position that such person holds or desires.” La. R.S. 23:322(8). “ ‘Disabled person’ means any person who has a physical or mental impairment which substantially limits one or more of the major life activities ....” La. R.S. 23:322(3). “‘Major life activities’ means functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” La. R.S. 23:322(7). These Louisiana statutes are similar to the Americans with Disabilities Act, 42 USC § 12101, et seq. In interpreting Louisiana’s employment discrimination laws, our courts have relied upon similar federal statutes and the interpreting federal jurisprudence. See Boudreaux v. Louisiana Casino Cruises, Inc., 99-1168, p. 5 (La.App. 1 Cir. 6/23/00), 762 So.2d 1200, 1204, writ denied, 00-2229 (La.10/27/00), 772 So.2d 651; Hicks v. Central Louisiana Electric Company, Inc., 97-1232, p. 3 (La.App. 1 Cir. 5/15/98), 712 So.2d 656, 658.

To defeat a motion for summary judgment against an employment disability claim, the claimant must establish a prima facie case that: (1) he has a disability, as defined by the statute, (2) he is qualified for the job, and (3) an adverse employment decision was made solely because of the disability. Hook v. Georgia-Gulf Corporation, 99-2791, p. 8 (La.App. 1 Cir. 1/12/01), 788 So.2d 47, 53, writ denied, 01-1098 (La.6/1/01), 793 So.2d 200. The threshold essential element of the claim is whether the claimant meets the statutory definition of “disabled.” Id. “Whether an impairment substantially limits a major life activity is determined in light of (1) the nature and severity of the impairment, (2) its duration or expected duration, and (3) its permanent or expected permanent or long-term Rimpact.” Dutcher v. Ingalls Ship building, 53 F.3d 723, 726 (5 Cir.1995). “When the major life activity under consideration is that of working, the statutory phrase ‘substantially limits’ requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 491, 119 S.Ct. 2139, 2151, 144 L.Ed.2d 450 (1999) (in relation to ability to continue work as a regional or domestic pilot, inability to work as a global pilot was seen only as limitation on a particular job); Blanks v. Southwestern Bell Communications, 310 F.3d 398, 401 (5 Cir.2002). An inability to perform a single job, or a narrow range of jobs, can be seen as not constituting a substantial limitation on the major life activity of working, or as not reaching a major life activity. Blanks, 310 F.3d at 401; Dutcher, 53 F.3d at 727. The “inability to perform one aspect of a job while retaining the ability to perform the work in general does not amount to a substantial limitation of the activity of working.” Dutcher, 53 F.3d at 727; 29 C.F.R. § 1630.2(j)(3)(i).

Whether an impairment substantially limits a claimant in a broad range of jobs, or only in a narrow range, is a mixed question of law and fact. Bridges v. City of Bossier, 92 F.3d 329, 333 (5 Cir.1996), cert. denied, 519 U.S. 1093, 117 S.Ct. 770, 136 L.Ed.2d 715 (1997). The question of what constitutes a substantial limitation on a major life activity is a legal question. Bridges, 92 F.3d at 334. An underlying factual question could involve what type of jobs and how many were available to the claimant despite his impairment. Bridges, 92 F.3d at 333.

Mr. Thomas began his work as a security guard with the casino in July of 1996. He worked both outdoor and indoor security posts around the casino. However, because of prior criminal convictions, he was unable to obtain a gaming employee permit that would have allowed him to work inside the casino itself. In February of 1997, he presented the casino with notes from his doctor. Admittedly, he was HIV positive at that time. One note stated that: “Mr. Thomas has a chronic lBsinus condition, and a weakened immune system which makes it easy for him to catch infections such as pneumonia. He must work inside only.” Although Mr. Thomas positively identified only the outdoor post nearest the river as the cause of his symptoms, he thought it could have been other posts as well. In spite of the doctor’s note, the casino required Mr. Thomas, as part of his duties, to relieve other officers, which periodically necessitated working at the outdoor security posts. Effective March 4, 1997, the casino released Mr. Thomas from his employment for “Chronic medical condition which prohibits him from performing necessary duties of a security officer.”

After he left the casino, Mr. Thomas worked in various positions, including a start-up business of his own. For a short time, he worked as a forklift operator, but left that position because he had “no room to grow.” He also worked for United Parcel Service and eventually for Home Depot. At Home Depot, he was hired as a lumber department associate, and was later promoted to department supervisor. In response to a question about whether Mr. Thomas had to remain indoors, he testified at trial that: “I can get outside just like — I can do anything you can do.” The record does not show whether the inability to work outdoors was permanent or was expected to be permanent.

“A physical impairment, standing alone, is not necessarily a disability as contemplated by” the applicable law for discrimination claims. Dutcher, 53 F.3d at 726. From our review of the record before us, we find that Mr. Thomas failed to demonstrate a genuine issue of material fact existed as to how many jobs or job categories were available, and whether he was unable to work in a broad range of jobs as a result of his asserted impairment. While Mr. Thomas did prove that he was unable to work outdoors for a period of time during his employment with the casino, the evidence also revealed that he was able to work as an indoor security guard, a forklift operator, a lumber consultant, and later, a supervisor. At best, this [ particular record shows only that, for a period of time in 1997, claimant was unable to perform a narrow range of jobs, that is, those requiring substantial outdoor work. Based on these particular facts, we agree that Mr. Thomas failed to establish that (1) working outdoors as a casino security guard in 1997 qualified as a separate major life activity or (2) his physical impairment substantially limited his ability to work in general. Therefore, Mr. Thomas did not meet the statutory definition of a “disabled person,” a threshold and essential element of his discrimination claim. See La. R.S. 23:322(3); C.C.P. art. 966 C(2).

For these reasons, we find no error in the trial court’s grant of the summary judgment in favor of defendant, Louisiana Casino Cruises, Inc. The judgment is affirmed at Mr. Thomas’ cost.

AFFIRMED.


author: LMcDONALD, J.

text:
    Jeff COLEMAN v. Landstar RANGER.
    No. 2003 CA 1943.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2004.

      Gregory S. Unger, Metairie, Counsel for Plaintiff/Appellant Jeff Coleman.
    Paul Michael Elvir, Jr., Metairie, Counsel for Defendants/Appellees Landstar Ranger and Liberty Mutual Insurance Company.
    Before: WHIPPLE, KUHN, and McDonald, jj.
   LMcDONALD, J.

In this Workers’ Compensation matter, the plaintiff, Jeffrey Coleman (Coleman) was an independent contractor hired by the defendant, Landstar Ranger (Lands-tar) as an “owner operator” over-the-road truck driver. In May 2002, Coleman was injured while completing a delivery for Landstar. Coleman alleges that he is disabled because -of injuries he sustained in the accident and that he is entitled to workers’ compensation benefits. Independent contractors generally are not entitled to workers’ compensation benefits. However, Coleman maintained that because a substantial part of his work time is spent in “manual labor,” he is entitled to benefits under the manual labor exception found in La. R.S. 23:1021(6).

After a trial on the matter, the workers’ compensation judge found that Coleman was an independent contractor; that his work did not fall within the manual labor exception as set forth in La. R.S. 23:1021(6) and, thus dismissed Coleman’s workers’ compensation claim with prejudice at his cost. Coleman timely filed this devolutive appeal, alleging that the judge’s finding that Coleman was not entitled to benefits under La. R.S. 23:1021(6) was manifestly erroneous.

Whether an individual’s job involves manual labor is to be considered from the particular facts and circumstances of each case. Mullen v. R.A.M. Enterprises 2002-1157, p. 4 (La.App. 1 Cir. 3/28/03), 844 So.2d 376, 379. The finding of the workers’ compensation judge that Coleman did not spend a substantial part of his work time in manual labor is one of fact. Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was |sa reasonable one. Seal v. Gaylord Container Corp. 97-0688 (La.12/2/97), 704 So.2d 1161, 1164 and cases cited therein.

Our review of the record reveals that there is a reasonable basis for the decision made by the workers’ compensation judge. The physical act of driving a truck is not, in. itself, manual labor as defined by law. Mullen, 2002-1157 at pp. 4-5. 844 So.2d at 379. In spite of the fact that Coleman considered truck driving hard labor, his testimony on how his work time is spent shows that he does not spend a substantial part of his work time in manual labor. The decision of the workers’ compensation judge is affirmed in accordance with URCA Rule 2-16.1. B and costs are assessed to appellant.

AFFIRMED.


author: | .FITZSIMMONS, J.

text:
    Crythis K. Bristow COUVILLION v. William Anthony COUVILLION.
    No. 2003 CA 2006.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2004.
    Writ Denied Oct. 29, 2004.
    Bernard Hampton, Baton Rouge, Counsel for Plaintiff/Appellee Crythis K. Bris-tow Couvillion.
    James Don Thomas, II, Darhlene M. Major, Baton Rouge, Counsel for Defendant/Appellant William A. Couvillion.
    Before: FITZSIMMONS, GAIDRY, and MCDONALD, JJ.
   | .FITZSIMMONS, J.

William A. Couvillion, M.D. appeals a partial judgment by the trial court holding a marriage contract null and void. Following our review of the record and controlling law, this court reverses.

Crythis K Bristow Couvillion filed a petition for divorce from her husband, Dr. Couvillion. Thereafter, she filed a “petition for partition of community property and settlement of claims and petition to declare alleged separation of property agreement invalid”. Dr. Couvillion denied the existence of a community property regime pursuant to a prenuptial agreement and marriage contract. Following a hearing on the issue of the validity of the prenuptial marriage contract, the trial court held that no prenuptial agreement had been signed by authentic act or under private signature prior to the September 4, 1992 marriage of the parties and, therefore, they were subject to a community property regime. Dr. Couvillion brings the current appeal.

DISCUSSION

On its face, the “Prenuptial Agreement and Marriage Contract” between the Cou-villions appears to be an authentic act executed on September 2, 1992. Mrs. Couvillion does not contest that she signed the contract; however, she maintains that the agreement was fraudulently confected. Mrs. Couvillion asserts that the agreement was not signed by her in the presence of a notary prior to the September 4, 1992 marriage. Mrs. Couvillion admits that the signature on the prenuptial agreement is hers; however, she contends that the document was backdated by her husband and presumably by the notary public.

As we initiate our review of the trial court’s decision, we are cognizant of the pronouncement of La. C.C. art. 1835. That civil code article dictates that an |sauthentic act constitutes full proof of the agreement it contains. An authentic act is cloaked in the presumption of genuineness; therefore, a party contesting the authenticity assumes the burden of proving the invalidity. DiVincenti v. McIntyre, 611 So.2d 140, 141 (La.App. 1st Cir.1992), writ denied, 614 So.2d 1264 (La.1993). Additionally, the jurisprudence has established that the high degree of sanctity afforded an authentic act necessitates that the party contesting its validity present evidence beyond a mere preponderance of the evidence. Id. Strong or convincing evidence constitutes the requisite burden of proof. Id. Although parol evidence is generally not admissible to alter or contradict the terms of an authentic act or written instrument, it may be admitted to prove fraud, mistake, illegality, want or failure of consideration, to explain an ambiguity when such explanation is not inconsistent with the written terms, or to show that the writing is only part of an entire oral contract between the parties. Scafidi v. Johnson, 420 So.2d 1113, 1115 (La.1982).

In written reasons for judgment, the court addressed the salient question of whether the prenuptial document was, in fact, signed two days prior to the parties’ entering into their marriage. After weighing both sides of the evidence, the court pronounced that it believed that Mrs. Couvillion did not sign the documents until after the marriage in August 1994. In support of this determination, the court expressly pointed out that there were “two different copies signed two different times by all the parties, filed into the record in 1994 and then again in 1997.” Although no supporting evidence was entered into the record, counsel for Mrs. Couvillion stated that a certified true copy of the prenuptial agreement was filed into the court record on August 30, 1994. The reasons for .judgment | ¿particularly noted that the agreement was not filed with the court until one week after Mrs. Couvillion stated she had signed and Federal Expressed it to Baton Rouge in 1994. Additionally, the court deemed credible Mrs. Couvillion’s evidence that she was physically located in Atlanta on the purported date of the signing in Baton Rouge. Finally, the court’s conclusion hinged on the testimony of Harris D. Copenhaver. He was the notary public for the marriage contract. Mr. Copenhaver stated that he occasionally notarized signatures of persons in their absence.

Scrupulous perusal of the evidence introduced at the hearing reveals the following substantive facts. Dr. Couvillion testified that he hand-delivered a copy of the prenuptial agreement document to Mrs. Couvillion for her review before September 4, 1992. On September 2, 1992, he signed the agreement before Mr. Copen-haver in Mr. Copenhaver’s office. Mr. Copenhaver stated that he recalled Dr. Couvillion signing the prenuptial agreement the morning of September 2, 1992. Dr. Couvillion indicated that his fiancé would be in to sign it later that day. Although admitting a faint recollection of the details, Mr. Copenhaver was under the impression that Mrs. Couvillion had arrived around the middle of the day, or early afternoon, to finalize the premarital contract before him. In response to questioning, Mr. Copenhaver testified that approximately ten percent of the time he had notarized signatures out of the presence of the signatory. Nevertheless, he qualified such a relaxed practice as being reserved only for clients “that [he] knew real well and knew the signatures .... ” Neither Dr. Couvillion nor Mrs. Couvillion had been a prior client of Mr. Copenhaver. Mr. Co-penhaver emphatically denied that Dr. Couvillion came to him in 1994 with the agreement and prevailed on Mr. Copen-haver to backdate it. He testified that he had never backdated any document.

| sMrs. Couvillion testified at the hearing that she was in Atlanta, Georgia, on September 2, 1992, where she remained until the day of her marriage on September 4, 1992. In support of her contention that she was physically in Atlanta, Mrs. Couvil-lion presented into evidence a copy of her BellSouth Mobility monthly bill. That statement indicates that numerous calls were made and received on her mobile phone throughout the day and evening of September 2, 1992. She also filed into evidence a copy of her one-way ticket from Atlanta to New Orleans on the morning of September 4, 1992, the day of her marriage. Mrs. Couvillion further testified that she was extremely busy professionally immediately prior to her marriage. She had scheduled seven round-trip airline flights for a business purpose during the same period of time, and she was simultaneously arranging transportation for her son, who was attending a new school. She stated that she kept the unsigned prenuptial document in her drawer until August 24, 1994, when she got a call from her husband’s attorney. He requested the prenuptial agreement that had been sent to her in 1992. She testified that she signed and sent the prenuptial agreement via Federal Express in 1994, and that Mr. Couvillion’s signature was not on the agreement at that time.

Mr. Carey Guglielmo, Sr. also testified. He was an attorney who represented a mortgage lender when Dr. Couvillion mortgaged two parcels of ground on July 15, 1993. In the mortgage agreement, Mrs. Couvillion appeared and attested to the existence of a prenuptial agreement and marriage contract. Mr. Guglielmo testified that he possessed a signed copy of the prenuptial agreement and marriage contract in his files in conjunction with the execution of that mortgage. He stated that he would not have allowed the loan to close had the prenuptial agreement not been in effect as of the finalization of the loan to Dr. Couvillion in 1993. His file notes reflected that he had received a telephone Incalí from Mrs. Couvillion in conjunction with the transaction, in which she objected to a provision in the mortgage document that referred to a “separate property system.” Mr. Guglielmo complied with her request for an alteration. Mrs. Couvillion did not, however, object to the reference to the prenuptial agreement in the mortgage document. The mortgage document of 1993, which was admitted into evidence, contains an authenticated acknowledgment by Mrs. Couvillion that “she and Mortgagor entered into a prenuptial agreement and marriage contract and that she has no ownership nor other rights in the above described property, the said property being the separate property of her husband, Mortgagor; it being understood that she has no personal liability for the mortgage indebtedness.”

The record on appeal contains four copies of the controverted prenuptial agreement and marriage contract. As is pointed out by the court in its reasons, it appears that the contract was filed into the court record on two occasions. Mr. Copenhaver certified the 1992 document as a true copy on August 24, 1994, after which it seems to have been filed into the court record as “Instrument # 563, Bundle 10537.” Although Mrs. Couvillion submitted into evidence a copy of a Federal Express bill allegedly related to the transmittal of the signed copy of the agreement from Atlanta to Dr. Couvillion in Baton Rouge, it should be noted that the delivery of that package was not made until midday of August 25, 1994. It would have, therefore, been logistically impossible for Mr. Copenhaver to have certified the document as a true copy on the previous day of August 24, 1994.

Dr. Couvillion also testified that he personally filed the prenuptial agreement into the court records in 1997 because the couple had temporarily separated during that year. That document was recorded as “ORIG 776 BNDL 10824.” Both recorded authentic acts, which appear to be duplicate originals due to the slightly |7noticeable deviations in their placement, provide that the prenuptial agreement was confected on September 2, 1992. Neither party contests the validity of the signatures. Another copy of the same prenuptial agreement and marriage contract filed in evidence was obtained from Mr. Gugliel-mo’s files in conjunction with the 1993 mortgage.

Harking back to the presumption of genuineness afforded to authentic acts, as well as the required “convincing proof’ to invalidate an authentic act, the trial court committed legal error. The court erred in finding Mrs. Couvillion’s testimony, phone bill, one-way ticket to New Orleans, and the fact that a certified copy of the prenuptial agreement was filed a week after Mrs. Couvillion purportedly sent it via Federal Express delivery to New Orleans, carried sufficient weight to overcome the presumption of verity of a notarial act. DiVincenti, 611 So.2d at 141-142. The phone bill and one-way ticket did not eliminate a circumstance in which she could have been in Baton Rouge on September 2, 1992, and the Federal Express documentation did not correlate with the true copy certification.

Other than Mrs. Couvillion’s testimony, there is no substantive evidence that would support the existence of fraud associated with the prenuptial agreement. Mr. Co-penhaver explicitly denied having backdated the document under review. Mr. Gu-glielmo, another attorney, possessed a copy of the prenuptial agreement in 1993, and Mrs. Couvillion expressly acknowledged the existence of the premarital agreement in conjunction with a mortgage. The fact that the prenuptial agreement might not have been recorded until years after its completion or that it might have been recorded on more than one occasion does not vitiate the viability of the agreement as a contract between the parties. Accordingly, this court reverses the judgment of the trial court to hold that the prenuptial agreement and marriage 1 scontract dated September 2, 1992 was in effect during the matrimonial regime of Dr. and Mrs. Couvillion. All costs associated with this appeal are assessed to Crythis K. Bristow Couvillion.

REVERSED AND RENDERED.

GAIDRY, J., concurs.

      . The partial judgment has been designated by the trial court as a final judgment with no just reason for delay in its appeal.

      . A marriage contract completed after the matrimonial regime has been established requires a different procedure that entails prior court approval. Louisiana Civil Code article 2329 provides, in part, "Spouses may enter into a matrimonial agreement that modifies or terminates a matrimonial regime during marriage only upon joint petition and a finding by the court that this serves their best interests and that they understand the governing principles and rules.”


author: | .WHIPPLE, J.

text:
    Agnes WILLIAMS v. Michael L. WILLIAMS.
    No. 2003 CA 2089.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2004.
    Writ Denied Oct. 29, 2004.
    David L. Dawson, Jr., Baton Rouge, for Plaintiff/Appellant, Agnes Williams.
    Thomas C. Delahaye, Plaquemine, for Defendant, Michael L. Williams
    Elliott W. Atkinson, Jr., Baton Rouge, for Defendants/Appellees, Kimberly Snell Legarde and Charles Legarde, III.

      Stephen P. Jewell, New Roads, for Larry Bossier.
    Before: WHIPPLE, KUHN and MCDONALD, JJ.
   | .WHIPPLE, J.

In this appeal, plaintiff challenges the judgment of the trial court maintaining the exception of no cause of action filed by one of the defendants herein and declaring that the defendant was the owner of certain immovable property at issue. Specifically, the trial court ruled that plaintiffs notice of lis pendens, which was filed in the conveyance records rather than in the mortgage records, was ineffective as to defendant, a third party purchaser. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On June 25, 1996, plaintiff, Agnes Williams, filed suit against defendant, Michael L. Williams, seeking to have an alleged donation by Agnes to Michael of certain immovable property in Iberville Parish set aside on the grounds of ingratitude. Attached to the petition was a notice of lis pendens, bearing a stamp evidencing recordation in the conveyance records of Iberville Parish.

Thereafter, on May 80, 1997, Michael sold the property at issue to a third party. On April 20, 2000, Michael then filed a peremptory exception raising the objection of failure to join a indispensable party, ie., the party to whom he sold the property. The exception was ultimately denied, and, following trial on the merits, the trial court rendered judgment revoking the donation.

On appeal, this court reversed the trial court’s judgment, concluding that the party to whom the property had been sold (whom this court listed as “Charles Le-gard”) was an indispensable party whose joinder was necessary for complete and equitable adjudication of this matter. Accordingly, this court reversed the judgment and remanded the matter for further | .proceedings. Williams v. Williams, 2000-2262, pp. 4-5 (La.App. 1st Cir.5/10/02), 818 So.2d 900, 902-903.

On December 11, 2002, after remand of the matter, Agnes joined Kimberly and Charles Legarde as defendants. The Le-gardes responded by filing exceptions of no cause of action, contending that Agnes had no cause of action against Charles Legarde in that he was not the owner of the property in question and that the notice of lis pendens filed on June 25, 1996 with the petition in this matter was ineffective as to Kimberly Legarde because it had not been filed in the mortgage records as required by LSA-C.C.P. arts. 3751 and 3752.

Following a hearing, the trial court maintained both exceptions, dismissed Agnes’ suit against Kimberly and Charles Legarde, and declared Kimberly Legarde to be the owner of record of the property. From this judgment, Agnes appeals only the ruling maintaining the exception of no cause of action as to Kimberly Legarde.

DISCUSSION

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy against the defendant to anyone under the factual allegations presented. Industrial Companies, Inc. v. Durbin, 2002-0665, p. 6 (La.1/28/03), 837 So.2d 1207, 1213. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. LSA-C.C.P. art. 931. Therefore, the court reviews the petition and accepts the well-pleaded allegations of fact as true, and the issue at trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. B & C Electric, Inc. v. East Baton Rouge Parish School Board, 2002-1578, p. 4 (La.App. 1st Cir.5/9/03), 849 So.2d 616, 619. Furthermore, the facts shown in any annexed ^documents must also be accepted as true. B & C Electric, Inc., 2002-1578 at p. 4, 849 So.2d at 619. In reviewing a trial court’s ruling maintaining an exception of no cause of action, the reviewing court conducts a de novo review because the exception raises a question of law. B & C Electric, Inc., 2002-1578 at p. 4, 849 So.2d at 619.

In her petition, Agnes alleged that she had donated certain immovable property to Michael and that she sought to revoke the donation to Michael on the grounds that he had engaged in cruel treatment and ingratitude. Together with her petition, Agnes filed a notice of lis pendens which, by the stamp affixed thereto, reflects that the notice was filed in the conveyance records of Iberville Parish rather than in the mortgage records.

In support of her exception of no cause of action, Kimberly Legarde argued, and the trial court agreed, that LSA-C.C.P. arts. 3751 and 3752 provide that to be effective against third parties, a notice of lis pendens must be filed in the mortgage records of the parish in which the immovable property is located. On appeal, Agnes contends that the trial court erred in its ruling because the recording of the notice of lis pendens in the conveyance records is sufficient to provide notice to a prospective purchaser that there was pending litigation involving the property being transferred.

The purpose of a notice of lis pen-dens is to give effective notice to third persons of the pendency of an action affecting title to, or asserting a mortgage or lien on, immovable property. LSA-C.C.P. art. 3751; Campbell v. Melton, 2001-2578, p. 5 n. 4 (La.5/14/02), 817 So.2d 69, 74 n. 4; L.E.C., Inc. v. Collins, 332 So.2d 565, 568 (La.App. 1st Cir.1976). The proper recor-dation of the notice of lis pendens makes the outcome of the suit of which notice is given binding on third parties. Campbell, 2001-2578 at p. 5 n. 4, 817 So.2d at 74 n. 4.

1 .¡Louisiana Code of Civil Procedure article 3751 provides that the pendency of an action affecting the title to, or asserting a mortgage or privilege on, immovable property does not constitute notice to a third person unless a notice of pendency of the action (ie., a notice of lis pendens) is filed or recorded as required by LSA-C.C.P. art. 3752. The form prescribed by law for a notice of lis pendens is found in LSA-C.C.P. art. 3752, which requires that the notice of lis pendens “shall be recorded in the mortgage office of the parish where the property to be affected is situated” and provides that the notice of lis pendens has effect “from the time of the filing for re-cordation.” (Emphasis added).

On appeal, Agnes argues that the language of LSA-C.C.P. art. 3752 requiring recordation in the “mortgage office” should be read to mean “the Office of the Clerk and Recorder of Mortgages” of the particular parish where the property is situated. Thus, she argues that the notice of lis pendens at issue, although recorded in the conveyance records rather than the mortgage records, was properly filed in that it was filed in the “office” of the Clerk and Recorder for Iberville Parish. This filing, she therefore asserts, constitutes public notice to all parties. We disagree.

As set forth above, the plain wording of LSA-C.C.P. art. 3752 sets forth that a notice of lis pendens be filed in the “mortgage office.” In interpreting prior Act 22 of 1904 which likewise required that a notice of lis pendens be filed in the “mortgage office,” the Louisiana Supreme Court held that “the only effective notice is the filing of the notice of lis pendens, and its registry in the mortgage records.” Continental Securities Corporation v. Wetherbee, 187 La. 773, 808, 175 So. 571, 582 (1937)(on rehearingXemphasis added). Additionally, the Orleans Appellate Court held that Act 22 of 1904 did not authorize that the notice of lis pendens “be inscribed in the conveyance office at all.” Rather, the court concluded, Act 22 of 1904 obviously provided for filing of the notice of lis pendens “in the mortgage office only.” Richardson v. Charles Kirsch & Co., 189 So. 146, 153 (La.App.Orleans 1939).

Similarly, we must conclude that the requirement in LSA-C.C.P. art. 3752 that a notice of lis pendens be filed in the “mortgage office” to be effective against third persons contemplates filing of the notice in the mortgage records and dictates that effective notice is achieved only upon “its registry in the mortgage records.” See Richardson, 189 So. at 153.

In support of her assertion that “mortgage office” should be read to mean “Office of the Clerk and Recorder of Mortgages,” Agnes notes that Louisiana’s public records doctrine, embodied in LSA-R.S. 9:2721 et seq., provides that no acts concerning immovable property shall have effect against third parties until deposited in the office of the parish recorder or register of conveyances of the parish where the immovable property is located. See LSA-R.S. 9:2721, 9:2744 and 9:2754.

l7The public records doctrine provides that no written instrument affecting immovable property shall be binding on or affect third persons “unless and until filed for registry in the office of the parish recorder of the parish where the land or immovable is situated.” See LSA-R.S. 9:2721(A). The public records doctrine is essentially a negative doctrine declaring that what is not recorded is not effective except between the parties, and that a third party in purchasing, or otherwise dealing with, immovable property is entitled to rely upon the absence from the public records of any unrecorded interest in the property. LSA-R.S. 9:2722; Hospital Service District No. 2 of Parish of Lafourche v. Community Bank of Lafourche, 2000-1035, p. 10 n. 9 (La.App. 1st Cir.6/22/01), 790 So.2d 688, 696 n. 9.

In the instant case, however, we do not believe that the statutes cited by Agnes relieve her of the duty of recording her notice of lis pendens in the proper office. Louisiana Code of Civil Procedure articles 3751 and 3752 constitute the more specific law, in that these articles are the law specifically governing notices of lis pendens, and are clear and unambiguous in their meaning. Accordingly, these codal provisions must be applied herein as written. See LSA-C.C. art. 9 (when a law is clear and unambiguous and its application does not lead to absurd consequences, it should be applied as written), and Smith v. St Tammany Fire Protection District No. 1, 97-2003, p. 5 (La.App. 1st Cir.9/25/98), 723 So.2d 994, 997, writ denied, 98-3075 (La.2/12/99), 738 So.2d 572, (in instances of conflict, the law specifically directed to the matter at issue must prevail as an exception to the statute more general in character); see also LSA-R.S. 9:2756 (providing that under the public records doctrine the recording of sales, contracts and judgments affecting immovable property shall have effect from the time when the act is deposited in the proper office and indorsed by the proper officer).

IsBecause the facts as established and accepted as true for purposes of this exception by the petition and attached notice of lis pendens demonstrate that the notice of lis pendens was filed in the conveyance records only, and not in the mortgage records, Kimberly Legarde has established that Agnes fails to state a cause of action against her. Specifically, Kimberly Le-garde cannot be bound by the outcome of the litigation between Agnes and Michael Williams where Agnes failed to properly record a notice of lis pendens.

For these reasons, we find no error in the trial court’s judgment maintaining Kimberly Legarde’s exception of no cause of action and dismissing Agnes’ suit against her.

CONCLUSION

For the above and foregoing reasons, the May 8, 2003 judgment of the trial court dismissing Agnes Williams’ suit against Kimberly Legarde is affirmed. Costs of this appeal are assessed against Agnes Williams.

AFFIRMED.

      . Act 22 of 1904 provided, in pertinent part, that in order for notice to third parties of the pendency of an action affecting immovable property to be effective, a notice of lis pen-dens "shall be recorded in the mortgage office of the parish where the property to be affected is situated, and shall have effect from the date of filing." (Emphasis added).

      . Louisiana Revised Statute 9:2721(A) provides, in pertinent part, "No sale, contract, counter letter, lien, mortgage, judgment, surface lease, oil, gas or mineral lease, or other instrument of writing relating to or affecting immovable property shall be binding on or affect third persons or third parties unless or until filed for registry in the office of the parish recorder of the parish where the land or immovable is situated.”
      Louisiana Revised Statute 9:2744 states, "It shall be the duty of the recorder to indorse on the back of each act deposited with him the time it was received by him, and to record the same without delay in the order in which they were received; and such acts shall have effect against third persons only from the date of their being deposited in the office of the parish recorders.”
      Revised Statute 9:2754 provides, "No notarial act concerning immovable property shall have any effect against third persons, until the same shall have been deposited in the office of the parish recorder, or register of conveyances of the parish where such immovable property is situated.”


author: 1 ¡.CARTER, C.J.

text:
    Kentrell DORSEY v. J. RAY MCDERMOTT, INC.
    No. 2003 CA 2264.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2004.

      Lawrence D. Wiedemann, New Orleans, Mauri Agosta, Labadieville, for Plaintiff/Appellant/Appellee Kentrell Dorsey.
    Patricia A. Krebs, Allan C. Crane, New Orleans, for Defendant/Appellee/Appellant J. Ray McDermott, Inc.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   1 ¡.CARTER, C.J.

The plaintiff, Kentrell Dorsey, brought suit against his employer, J. Ray McDer-mott, Inc. (McDermott), for injuries sustained offshore. Dorsey sought damages based on Jones Act negligence and the maritime doctrines of unseaworthiness and maintenance and cure.

The trial court signed a judgment on June 13, 2001, dismissing Dorsey’s negligence and unseaworthiness claims, but ordering McDermott to pay Dorsey maintenance and cure until he reached maximum medical cure. On October 23, 2003, the trial court entered a judgment setting forth the amount of cure owed.

Dorsey and McDermott each appeal the trial court’s judgments. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Kentrell Dorsey considered himself to be an experienced rigger. Prior to working for McDermott, Dorsey had over two years of rigging experience working for various employers. Dorsey was familiar with line handling and untying barges— something he did every day as a rigger. At the time of his injury, Dorsey had been working for McDermott as a rigger on Lay Barge 30 for approximately two months.

Lay Barge 30 was a pipe-laying barge. Material barges carrying pipe would be brought to and from Lay Barge 30 by means of a tugboat. It was the riggers’ responsibility to moor the material barge to the lay barge using various lines or ropes. Generally, two nylon spring lines were placed at the bows and sterns of the barges to hold them together. The two barges were further secured by black and yellow, polypropylene breast lines, also known 13as mooring lines, that ran between the spring lines. The number of breast lines would vary, depending on such things as the size and make of the material barge and the weather. Once the pipe was offloaded, it was the riggers’ responsibility to untie the lines so that the material barge could be released.

The material barges were changed out approximately every twenty-four hours. The lead rigger, also referred to as the leaderman, and the barge foreman coordinated the process, directing the riggers’ actions. At the time Dorsey was injured, Lynn Gautreaux was acting in the capacity of leaderman and Ray DeFelice held the position of barge foreman. Gautreaux and DeFelice had hand-held, two-way radios that they used to communicate with the crane operators on Lay Barge 30 and with the tugboat captains. The crane was available to lift heavy ropes and to transport riggers between the two barges in a personnel basket. The tugboat might be used to hold the material barge steady while the lines were being tied and untied.

When a material barge was being moored or released, the general practice was for two riggers to be carried in a personnel basket by crane to the material barge. The other riggers, generally four to six, would remain on the lay barge, along with the supervisors. A larger number of riggers remained on the lay barge because it was the living quarters and the site from which operations took place.

On August 25, 1997, Dorsey and another rigger, Randy West, were carried in the personnel basket to the material barge. The men began to individually untie the lines. During his testimony, Dorsey provided several different accounts of how his back injury occurred. First, Dorsey explained |4that one of the breast lines he was untying was mis-rigged; the eye of the rope was on the material barge, rather than the lay barge, and figure eights had been placed on top of the eye. Dorsey explained that this tying method made it difficult for him to get sufficient slack to untie the line. The rope with slack was hanging in the water. Dorsey stated he was directed by his supervisors to pull up the rope, which he did, injuring his back. Dorsey also claimed his injury was caused by the tugboat’s failure to hold the barges together, tightening the line he was holding and preventing him from getting enough slack to remove the figure eights. Dorsey’s final explanation of the cause of his injury was that an unidentified rigger on the lay barge let go of his end of the rope, causing the rope Dorsey was untying to wrap around his hand and jerk him. Dorsey testified that when this occurred, he cried out to Gautreaux that he was hurt.

The specifics of what happened may never be known, as no one was able to verify any of Dorsey’s accounts of what occurred that day. West, the only other rigger on the material barge at that time, did not remember Dorsey, much less that an accident occurred. Neither Gautreaux nor DeFelice recalled witnessing an accident, although both were present on the lay barge and within shouting distance of Dorsey on the day in question. Similarly, Philip Cockerham, the barge crane operator, had no recollection of Dorsey or that an accident occurred.

When Dorsey returned to Lay Barge 30 via the personnel basket, he told Gau-treaux he had hurt his back. Although Gautreaux instructed him to report to medic Bubba Essery, Dorsey continued to work, completing his shift. The next morning, after a fitful night, Dorsey reported to the barge |Bmedic; however, Dorsey did not tell Essery his back pain was the result of an accident. Essery instructed Dorsey to perform only light duty work, but Dorsey returned to his regular assignment. Shortly after resuming his regular duties, Dorsey returned to the medic in pain; again he did not report an accident. Dorsey was placed on bed rest. The next day, August 27, 1997, Dorsey returned to the medic, this time reporting that he was injured in an accident.

Following his injury, numerous doctors treated Dorsey for back pain. Dorsey was first examined by Dr. Charles Parsiola at the Bourgeois Medical Clinic on August 27, 1997. Dorsey also sought the assistance of Dr. Coleridge Franklin, his family physician. Dorsey was then evaluated by four different orthopedic surgeons: Dr. Arthur Delmar Walker, Jr.; Dr. Neil Maki; Dr. Christopher Cenac; and Dr. Kenneth Adatto. With the exception of Dr. Adatto, the physicians found only an indication of a soft tissue injury with no disc involvement that would necessitate surgery. In contrast, Dr. Adatto recommended surgery, and in January 1999, Dorsey underwent a lumbar fusion at L4-5. Dr. Adatto last saw Dorsey in February 2000 and indicated Dorsey’s back was at maximum medical improvement at that time. Dorsey indicated that he was pleased with the results of his back surgery.

ISSUES

On appeal, Dorsey raises four assignments of error:

1. The trial court erred in failing to find Lay Barge 30 and the material barge unseaworthy.
2. The trial court erred in failing to find McDermott negligent under the Jones Act.
3. The trial court erred in failing to award Dorsey damages for his injuries.
|64. The trial court erred in failing to award attorney’s fees because of McDermott’s failure to pay maintenance and cure.

McDermott raises two assignments of error:

1. The trial court erred in finding Dorsey had not reached maximum medical cure at the time of trial.
2. The trial court erred in awarding Dorsey an amount of cure that included future treatment by psychiatrist David Mielke.

DISCUSSION

Standard of Review

In reviewing factual determinations made in Jones Act and general maritime cases, the manifest error standard of review is applied. Milstead v. Diamond M Offshore, Inc., 95-2446 (La.7/2/96), 676 So.2d 89, 96. The fact finder’s factual determinations may not be disturbed on appeal unless they are clearly wrong. Stated another way, in order to reverse a factual determination, an appellate court must find: (1) a reasonable factual basis does not exist in the record for the finding; and (2) the record establishes that the finding is clearly wrong or manifestly erroneous. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of conflicting testimony and reasonable inferences of fact should not be disturbed upon review. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be clearly wrong. Stobart, 617 So.2d at 883.

| nJones Act Negligence and Unseaworthiness

The Jones Act, 46 U.S.C.A.App. § 688, provides a cause of action against a maritime employer based on negligence when a seaman is injured in the course and scope of his employment. The Jones Act contains a liberal causation requirement that entitles a seaman to recover if negligence chargeable to the employer played any part in producing the injury. See Jenkins v. Sonat Offshore U.S.A., Inc., 96-2504 (La.App. 1 Cir. 12/29/97), 705 So.2d 1184, 1187. An employer’s negligence may arise from a dangerous condition on or about the vessel, failure to use reasonable care to provide a seaman with a safe place to work, failure to inspect the vessel for hazards, and any other breach of the employer’s duty of care. Foster v. Destin Trading Corporation, 96-0803 (La.5/30/97), 700 So.2d 199, 204-05. Under the Jones Act, both the employer and the seaman are obligated to act with ordinary prudence under the circumstances. Jenkins, 705 So.2d at 1187.

In contrast, liability under the doctrine of unseaworthiness does not rest upon fault or negligence. The owner’s duty to furnish a seaworthy ship is absolute and completely independent of the duty under the Jones Act to exercise reasonable care. To be seaworthy, a vessel and its appurtenances must be reasonably suited for the use for which they were intended. A more stringent standard of causation is required to prevail on an unseaworthiness claim than on a Jones Act claim. Specifically, a plaintiff must prove that the unseaworthy condition played a substantial part in bringing about the injury and that the injury was either the direct result or a reasonably probable consequence of the unseaworthiness. Jenkins, 705 So.2d at 1187.

|sAlthough negligence and unseaworthiness are totally separate concepts, the same factual basis has been used to assert both theories of recovery. Cabahug v. Text Shipping Co., 98-0786 (La.App. 1 Cir. 5/12/00), 760 So.2d 1243, 1251, unit denied, 00-2366 (La.11/3/00), 773 So.2d 145. Herein, Dorsey asserted there was Jones Act negligence and/or unseaworthiness in the following: (1) improper rigging of the material barge to Lay Barge 30; (2) failure of a barge supervisor to properly direct the tugboat operator, to order the gantry crane operator to use a crane to pick up the polypropylene rope, to assign additional help to assist Dorsey in picking up the rope, and to order Dorsey to not pick up the rope; and (3) failing to establish a procedure for the rigging of lines and for the retrieval of wet lines.

Much of Dorsey’s complaint is grounded in the allegation that the material barge was mis-rigged. Specifically, Dorsey challenges the placement of the eye of the rope, or line, on the material barge rather than on the lay barge. Gau-treaux stated in his deposition that there is no rule regarding on which barge the eye of the line is to be placed. DeFelice also testified: “There’s no certain set way how to tie up a material barge.” Eldon Hutchinson, Lay Barge 30’s superintendent with over twenty-eight years of offshore experience, confirmed that there is no set procedure for tying a material barge to a lay barge. Hutchinson had personally seen polypropylene breast lines tied with the eye on the material barge. Randy West’s deposition testimony supported that of Gautreaux, DeFelice, and Hutchinson. “There is so many ways they can tie them up.... When you bring them in, you never tie the same barge — each barge the same way.” | flWest explained the barges are rigged “[a]ny way you can get over there and tie it off.” In conclusion, despite Dorsey’s protestations to the contrary, the overwhelming evidence supports the conclusion that having the eye of the line on the material barge is not indicative of the line being mis-rigged.

Moreover, the fact that the eye was under the figure eights, rather than on top of the figure eights, also is not indicative of an error. David Horman, McDermott’s expert in vessel operations and marine safety, explained that one might place the figure eights on top of the eye in order to secure the eye when a single line is used. When questioned about the difficulty of untying a line with the eye underneath figure eights, rigger West replied, “no big-gy,” explaining it is a lot quicker to tie a line that way.

Even if one were to assume it is more desirable for the eye of a line to be placed on the lay barge and for the eye to sit on top of the figure eights, the mere existence of a safer alternative does not by itself render an object unreasonably dangerous or present an unreasonable risk of harm. See Hebert v. Southwest Louisiana Electric Membership Corp., 95-405 (La.App. 3 Cir. 12/27/95), 667 So.2d 1148, 1160, twits denied, 96-0277 and 96-0798 (La.5/17/96), 673 So.2d 607 and 608. Moreover, we do not find an alternative method for tying and untying the lines would be any safer, since the rigger would still have to lift the rope. The testimony established that it is not unusual for a rigger to untie a breast line himself. As West succinctly stated, handling lines is “manual work.” The fact that a rigger’s duties require physical straining does not equate to a negligent or unseaworthy condition.

|inDorsey also maintains that his injury was caused by there being insufficient personnel on board and because his supervisors failed to recognize his need for assistance in lifting the polypropylene line from the water. In evaluating this allegation, a distinction must be made between the nylon rope used for the spring lines and the polypropylene rope used for the breast lines. A dry nylon rope generally weighs four times more than a dry polypropylene rope. And, because the nylon rope absorbs water, the wet rope must be lifted with a crane. In contrast, the polypropylene line floats on water. DeFelice observed that generally one man can lift a polypropylene line that drops in the water. Hutchinson also stated that a polypropylene line is normally lifted from the water by hand, and one man should be able to do so. Horman also confirmed that the polypropylene lines are designed to be handled by personnel and not by a crane. Dorsey and Horman both testified that the usual custom is to have two riggers stationed on the material barge, each working independently to release the lines.

Gautreaux and DeFelice were on deck supervising the release of the material barge. Although Dorsey complains that neither Gautreaux nor DeFelice called the crane operator or another rigger to help him untie the breast line, he concedes he did not ask for help. Dorsey also did not request assistance from West. Dorsey acknowledged that he was familiar with offshore hand signals; however, he did not use them on the day he was injured to signal his supervisors, other riggers, or the crane operator that he needed assistance.

The record clearly supports the trial court’s conclusion that McDermott was not negligent in causing Dorsey’s injury. Similarly, the Inrecord supports the trial court’s conclusion that the vessel was seaworthy. So concluding, Dorsey is not entitled to damages.

Maximum Medical Improvement

The maritime doctrine of maintenance and cure requires an employer to provide food, lodging, and necessary medical services to a seaman who becomes ill or injured while in service to the ship. Campbell v. Higman Barge Lines, Inc., 02-0937 (La.App. 3 Cir. 2/5/03), 838 So.2d 80, 87, Writ denied, 03-0629 (La.5/2/03), 842 So.2d 1104. Entitlement to maintenance and cure is independent of the claims based on unseaworthiness or Jones Act negligence. To recover maintenance and cure, a seaman need only prove that the injury arose during his service of the vessel; the seaman does not have to prove a causal connection to his duties. Domonter v. C.F. Bean Corp., 99-1204 (La.App. 5 Cir. 4/25/00), 761 So.2d 629, 640, unit denied, 00-1872 (La.9/29/00), 770 So.2d 354. Maintenance is compensation by way of a stipend to cover the costs associated with food and lodging, equivalent to that received on the vessel. Cure is payment of the seaman’s medical, therapeutic, and hospital expenses until that point in time when the seaman reaches maximum medical cure. Campbell, 838 So.2d at 87. Maximum cure has been reached where it is probable that further treatment will result in no betterment in the claimant’s condition. Boudreaux v. U.S., 280 F.3d 461, 468 (5th Cir.2002).

The trial court’s judgment awarded Dorsey cure in the amount of $81,121.81, with interest. McDermott alleges the trial court’s finding that Dorsey had not reached maximum medical cure is manifestly erroneous. In | ^particular, McDermott challenges the award of $2,920.00 for Dorsey to receive psychiatric care from Dr. David Mielke.

In addition to receiving care for his physical injuries, Dorsey sought the medical assistance of a psychiatrist. David Mielke, a board certified professor of psychiatry at Tulane University Medical Center, examined Dorsey in June of 1998. Dorsey presented with complaints of decreased physical activity, depression, and decreased sexual drive. At the time of the appointment, Dorsey was abusing alcohol and illegal drugs. Dr. Mielke treated Dorsey for depression through September 20, 2000, and counseled him on his alcohol and drug abuse. Part of Dorsey’s treatment included hospitalization at DePaul Hospital from July 27 through August 12, 1998.

In his deposition, Dr. Mielke stated that two years post-operative, Dorsey still suffered from anxiety and depression. Dr. Mielke explained that continued psychiatric care would assist Dorsey with coping with his continuing depression and with his lifestyle and occupational changes. Dr. Mielke also felt treatment would help Dorsey remain drug and alcohol free. Specifically, Dr. Mielke recommended Dorsey continue mental health visits four times a year for two years, and three times a year for the two years following. He also recommended that Dorsey continue on his psychiatric medication.

Maximum medical cure occurs when it is probable that further treatment will result in no betterment in the claimant’s condition. Therefore, if a seaman requires therapy that will improve a mental condition brought on by his injury, he has not reached maximum medical cure. See Boudreaux, 280 F.3d at 469. The trial court’s conclusion that Dorsey had not reached | ^maximum medical cure and that Dorsey would benefit from further mental health treatment was not clearly erroneous.

Attorney’s Fees

Dorsey submits the trial court erred in failing to award attorney’s fees. Dorsey alleges McDermott was arbitrary and capricious in refusing to pay maintenance and cure. An award of attorney’s fees is proper only if the employer has been found to act in a fashion that is callous and recalcitrant; arbitrary and capricious; or willful, callous, and persistent. Muhammad v. Diamond Offshore Co., 02-0172 (La.App. 3 Cir. 7/10/02), 822 So.2d 869, 877, unit denied, 02-2409 (La.11/27/02), 831 So.2d 279, cert. denied, 538 U.S. 1056, 123 S.Ct. 2215, 155 L.Ed.2d 1106 (2003).

McDermott was paying maintenance benefits to Dorsey at the time of trial. As to cure, medical opinions differed regarding the extent of Dorsey’s physical and mental health. See Muhammad, 822 So.2d at 877. There is nothing in the record to support a conclusion that McDermott acted in an arbitrary and capricious manner.

CONCLUSION

In resolving this legal dispute, it was necessary for the trial court to make numerous credibility determinations. The trial court’s findings of fact are supported by the record and are not manifestly erroneous. The judgment of the trial court is affirmed in all respects and costs of this appeal are to be shared equally by the cross-appellants.

AFFIRMED.

PARRO, J., concurs.

GUIDRY, J., concurs in the result.


author: I .DOWNING, J.

text:
    Wilton Gerald LEBO v. Daniea Wilson LEBO.
    No. 2004 CU 0444.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2004.
    Dawn Amaeker, Bogalusa, Counsel for Defendant/Appellant Daniea Wilson Lebo.
    Richard W. Watts, Franklinton, Counsel for Plaintiff/Appellee Wilton Gerald Lebo.

      Before: PETTIGREW, DOWNING and McClendon, jj.
   I .DOWNING, J.

Daniea Wilson Lebo Farlow appeals a judgment in which the trial court declined to alter the terms of a stipulated joint custody decree to award her temporary domiciliary custody of her eleven-year-old son while her ex-husband, the child’s father, Wilton Gerald Lebo, is assigned to military duty in Afghanistan. She also appeals an adverse ruling on her motion to annul a civil warrant that ordered her to return the child to the custodial parent. Additionally, she appeals an adverse judgment on her application for writ of habeas corpus by which she sought custody of the child. Further, she asserts that the trial court erred in refusing to allow the child to testify.

For the following reasons, we affirm the trial court on the civil warrant and habeas corpus rulings. However, we reverse the judgment of the trial court insofar as it denied the rule for temporary custody and placed the child’s stepmother in the stead of the child’s father, and we remand for further proceedings.

PERTINENT FACTS

Subsequent to their divorce, Daniea Farlow and Wilton Lebo entered into a “Stipulation and Judgment With Respect To Custody/Visitation,” which the trial court made the judgment of the court on November 26, 2001. This judgment named Wilton Lebo as the domiciliary parent and provided the terms for both parents’ exercise of physical custody.

Wilton Lebo, a member of the Louisiana National Guard, was called to active duty, effective July 10, 2003, and was subsequently stationed in Afghanistan. Prior to his deployment, he executed a power of attorney naming his current wife, Lee Anna Lebo, as guardian of the child and giving her authority to act on the child’s behalf.

| ¡¡Subsequently, when a period for her physical custody ended after Mr. Lebo had been deployed, Mrs. Farlow refused to return the child to the stepmother, the current Mrs. Lebo. Mrs. Lebo then sought a civil warrant for the return of the child to her, which the court granted. These proceedings ensued. The efficacy of the power of attorney is the central issue in this appeal.

DISCUSSION

Civil Warrant/Habeas Corpus

In her rule to annul the civil warrant and motion for writ of habeas corpus, Mrs. Farlow attempted to obtain legal custody of the minor child. She claimed that since the current Mrs. Lebo could not have custody in preference to her, see La. C.C. art. 133, she could employ these procedural devices to gain temporary custody.

Here, however, Mr. Lebo, the child’s father, was named domiciliary parent. The law gives Mr. Lebo the authority to make all decisions affecting the child unless otherwise provided in a custody implementation order. The stipulated joint custody order made no contrary provision. Further, a domiciliary parent’s major decisions are presumed to be in the child’s best interest, subject to review by the court upon motion of the other parent. La. R.S. 9:335(B)(3). Accordingly, Mr. Lebo was acting within his authority in leaving his child in the care of his current wife.

We specifically note, however, that this statute does not authorize a domiciliary parent to unilaterally change custody of a minor child as Mr. Lebo apparently attempted to do in his power of attorney. The authority to 14modify a custody order is reserved to the courts pursuant to La. C.C.art. 131 et seq. for contested matters and La. Ch.C. art. 1510 et seq. for uncontested matters.

Mr. Lebo, not Mrs. Farlow, had the authority to make decisions for the child, and we are aware of no legal precepts under which annulling the civil warrant or granting the writ of habeas corpus would have vested such authority in Mrs. Farlow. Accordingly, Mrs. Farlow’s first three assignments of error are without merit.

Temporary Custody

In denying Mrs. Farlow’s request for temporary custody while Mr. Lebo was stationed out of the country, the trial court ruled that under the terms of the Soldiers’ and Sailors’ Civil Relief Act of 1940, the power of attorney placed the current Mrs. Lebo in her husband’s shoes while he was away. Neither the trial court nor any party cited a specific code article for this proposition, however. And after thorough review of the Act, we cannot find such proposition. Therefore, we conclude that the trial court erred as a | ¿matter of law in denying Mrs. Farlow’s motion for temporary custody without conducting a hearing on the matter. We reverse the judgment of the trial court in this regard. Accordingly, we remand the matter to the trial court for a healing to determine if the issue of temporary custody is moot [ phased on the father’s return home from serving his country, and if not, to conduct a custody hearing to determine the child’s best interest in accordance with applicable law, including the terms of La. C.C. art. 134.

Because we remand this matter for further proceedings, we pretermit the issue of whether the trial court abused its discretion in refusing to consider the reasonable preferences of the child as allowed by La. C.C. art. 134(9). We observe, however, that as long as the minor has relevant information, is of suitable age and discretion, and understands right from wrong, either party may call the child to testify at a custody hearing. See La.Code Evid. art. 601, Raney v. Wren, 98-0869 (La.App. 1 Cir. 11/6/98), 722 So.2d 54, State in Interest of D.M., 97-0628 (La.App. 1 Cir. 11/7/97), 704 So.2d 786.

DECREE

For the foregoing reasons, we affirm in part, reverse in part and remand for further proceedings consistent with this opinion. Costs are to be split equally between the parties.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

      . While the power of attorney, a military form, purports to grant the current Mrs. Lebo "guardianship” of the minor child, the document also specifically provides as follows: "You must understand that a POA will not prevent another person, such as a non-custodial parent or relative of your child (ren), from petitioning a court of competent jurisdiction to obtain temporary or permanent custody of your children.” It also provides, "You must also understand that depending on the law or other requirements where your child (ren) will be living, a POA may not always be effective for your designated guardian to care for your child (ren) under any or all circumstances.”

      . We note that Mr. Lebo, as a serviceman, was entitled to ask for a stay, which he did not do. 50 U.S.C.App. § 521 (1940). Rather, he hired an attorney and proceeded with the litigation. The terms of the Act were amended effective December 19, 2003. .Prior to this time, the article provided a discretionary stay as follows:
      At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant, during the period of such service or within sixty days thereafter may, in the discretion of the court in which it is pending, on its own motion, and shall, on application to it by such person or some person on his behalf, be stayed as provided in this act [sections 501 to 591 of this Appendix], unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service.
      Effective December 19, 2003, the statute has been re-named the "Servicemembers Civil Relief Act” and this article has been re-designated as 50 U.S.C.App. § 522. Section 522 provides a short-term mandatory stay when applied for, and then a discretionary stay, as follows:
      (a) Applicability of section
      This section applies to any civil action or proceeding in which the defendant at the time of filing an application under this section—
      (1) is in military service or is within 90 days after termination of or release from military service; and
      (2) has received notice of the action or proceeding.
      (b) Stay of proceedings
      (1) Authority for stay
      At any stage before final judgment in a civil action or proceeding in which a ser-vicemember described in subsection (a) is a party, the court may on its own motion and shall, upon application by the ser-vicemember, stay the action for a period of not less than 90 days, if the conditions in paragraph (2) are met.
      (2) Conditions for stay
      An application for a stay under paragraph (1) shall include the following:
      (A) A letter or other communication setting forth facts stating the manner in which current military duty requirements materially affect the servicemember's ability to appear and stating a date when the servicemember will be available to appear.
      (B) A letter or other communication from the servicemember's commanding officer stating that the servicemember's current military duty prevents appearance and that military leave is not authorized for the servicemember at the time of the letter.
      (c) Application not a waiver of defenses
      An application for a stay under this section does not constitute an appearance for jurisdictional purposes and does not constitute a waiver of any substantive or procedural defense (including a defense relating to lack of personal jurisdiction).
      (d) Additional stay
      (1) Application
      A servicemember who is granted a stay of a civil action or proceeding under subsection (b) may apply for an additional stay based on continuing material affect of military duty on the servicemember’s ability to appear. Such an application may be made by the servicemember at the time of the initial application under subsection (b) or when it appears that the servicemember is unavailable to prosecute or defend the action. The same information required under subsection (b)(2) shall be included in an application under this subsection.
      (2) Appointment of counsel when additional stay refused
      If the court refuses to grant an additional stay of proceedings under paragraph (1), the court shall appoint counsel to represent the servicemember in the action or proceeding.
      (e) Coordination with section 201 [section 521 of this Appendix]
      A servicemember who applies for a stay under this section and is unsuccessful may not seek the protections afforded by section 201 [section 521 of this Appendix].
      (f) Inapplicability to section 301 [section 531 of this Appendix]
      The protections of this section do not apply to section 301 [section 531 of this Appendix],
      We also note that in custody and support matters, at least, such stay should be granted for only a reasonable period of time. Williams v. Williams, 552 So.2d 531, 536 (La.App. 2 Cir.1989).


author: | .CARTER, C.J.

text:
    John Howard OSBORN v. UNIT DRILLING COMPANY, A Subsidiary of Unit Corporation, and Liberty Mutual Insurance Company.
    No. 2004 CA 0014.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2004.
    Writ Denied Oct. 15, 2004.

      Elliott W. Atkinson, Jr., Baton Rouge, for Appellant, Edie Osborn.
    Patrick F. Robinson, Baton Rouge, for Appellees, Unit Drilling Company and Liberty Mutual Insurance Company.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   | .CARTER, C.J.

Edie Osborn appeals a decision of the Office of Workers’ Compensation (OWC) that dismissed her claim for workers’ compensation death benefits.

FACTS

On November 20, 2001, while in the course and scope of his employment as a rig manager with Unit Drilling Company, John Osborn was injured when a 3/8-inch chain raising a piece of equipment broke, striking him in the head, face, and right arm. As a result of his injuries, Mr. Osborn was hospitalized for seven days, during which time he underwent surgery to his arm and was treated daily for pain. After his release from the hospital, Mr. Osborn faced extensive treatment, including skin and possible bone grafts. He also continued taking pain medication daily. Seven days after his release from the hospital (fifteen days after the accident), Mr. Osborn suffered a fatal heart attack.

Edie Osborn, Mr. Osborn’s widow,' filed a claim for death benefits with the OWC. The Workers’ Compensation Judge (WCJ) dismissed Ms. Osborn’s claim, concluding that Ms. Osborn had not met her burden of proof under LSA-R.S. 23:1021(7)(e) for recovery based on a heart-related or peri-vascular death. Ms. Osborn now appeals.

DISCUSSION

In general, dependents of an injured employee are entitled to receive benefits for any injury that arises in the course and scope of employment that results in the death of the employee. Quinones v. United States Fidelity and Guaranty Company, 93-1648 (La.1/14/94), 630 So.2d 1303, 1306; see LSA-R.S. 23:1031 and 1231. The claimant bears the burden of ^establishing a causal connection between the employment accident and resulting death by a reasonable preponderance of the evidence. Quinones, 630 So.2d at 1307.

However, when the employee’s death is the result of a heart-related or perivascular injury arising out of and in the course of employment, the general requirements do not apply and the claim is governed under LSA-R.S. 23:1021(7)(e), which provides:

A heart-related or perivascular injury, illness, or death shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence that:
(i) The physical work stress was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation, and
(ii) The physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of the heart-related or perivascular injury, illness, or death.

The statute restricts such compensable heart attack deaths to those arising out of physical work stress in the job environment. Hatcherson v. Diebold, Inc., 00-3263 (La.5/15/01), 784 So.2d 1284, 1290-91. LSA-R.S. 23:1021(7)(e) also imposes on the claimant the heightened burden of proof by clear and convincing evidence, which is intended to exclude from coverage an employee who just happened to have a heart attack while performing his job. Hood v. Metro Industrial Corp., 00-2158 (La.App. 1 Cir. 12/28/01), 806 So.2d 848, 851-52, writ denied, 02-0947 (La.9/30/02), 825 So.2d 1185.

In this case, the WCJ analyzed the claim for death benefits under LSA-R.S. 23:1021(7)(e). On appeal, however, Ms. Osborn argues that the |4fatal heart attack Mr. Osborn experienced was a consequence of the physical injury Mr. Osborn suffered during the course and scope of his employment. Thus, this case arguably does not fall under the purview of LSA-R.S. 23:1021(7)(e) and should have been analyzed under general workers’ compensation principles.

The Louisiana Supreme Court has recognized that not all cases in which the employee suffers a heart-related or peri-vascular injury fall within the scope of LSA-R.S. 23:1021(7)(e). Specifically, the court noted that LSA-R.S. 23:1021(7)(e) was not intended to apply to those “heart-related” or “perivascular” injuries that directly result from some physical impact that arises out of and is incurred in the course and scope of employment. Charles v. Travelers Insurance Co., 627 So.2d 1366, 1371 n. 15 (La.1993). In those cases, the claims for workers’ compensation benefits would not be analyzed under LSA-R.S. 23:1021(7)(e), but would be considered under general workers’ compensation principles.

In this case, the medical evidence establishes that as a result of the November 20 accident, Mr. Osborn suffered a skull fracture, facial injuries, and open fractures of his right forearm. Mr. Osborn remained hospitalized for one week, with part of that time being spent in the intensive care unit. By all accounts, Mr. Osborn was in severe pain after the accident. In fact, | Bone hour before his fatal heart attack, Mr. Osborn took prescription pain medication.

Dr. Harris A. Lappin, a cardiologist, testified at trial after reviewing Mr. Osborn’s medical records, although he did not have the benefit of ever seeing Mr. Osborn. Dr. Lappin did not believe that Mr. Osborn’s physical injuries actually created the heart attack. However, he emphatically stated that, in his opinion, Mr. Osborn would not have died but for the accident. Dr. Lappin explained that the trauma of the accident and the resulting injuries created substantial stress, which triggered shear forces. Those shear forces contributed to plaque disruption and ultimately stenosis (in this case a 95% narrowing) of the left anterior descending artery, which shut down blood flow. Thus, in Dr. Lap-pin’s opinion, the accident was causally connected to Mr. Osborn’s death.

Both Dr. Thomas B. Ford, who treated Mr. Osborn in the emergency room after the November 20 accident, and Dr. Louis Cataldie, the coroner who reviewed the autopsy performed on Mr. Osborn and who signed the death certifícate, agreed that the stress of the accident and resulting injuries caused Mr. Osborn’s heart attack. Dr. Cataldie amended the death certificate to reflect the manner of death as accidental and to further indicate the cause of death to be cardiovascular disease as a consequence of multiple trauma and stres-sors of accident.

Considering the foregoing, we agree with Ms. Osborn that Mr. Osborn’s heart attack was directly related to the physical trauma of the November 20 accident. Therefore, the claim for death benefits does not fall under LSA-R.S. 23:1021(7)(e) and should have been decided under general workers’ compensation principles. The WCJ committed legal error in ^applying LSA-R.S. 23:1021(7)(e) and holding Ms. Osborn to the heightened burden of proof by clear and convincing evidence required thereunder.

Where one or more tidal court legal errors interdict the fact-finding process, and, if the record is otherwise complete, the reviewing court should make its own independent de novo review and assessment of the record. Campo v. Correa, 01-2707 (La.6/21/02), 828 So.2d 502, 510. At trial, the parties stipulated that Mr. Osborn was injured while in the course and scope of his employment when a 3/8-inch chain, which was being used to raise a piece of equipment, broke, striking him in the head, face, and right arm, and causing the severe injuries reflected in the medical records. Based on the medical evidence previously set forth, we find that Ms. Osborn proved by a reasonable preponderance of the evidence a causal connection between the employment accident and Mr. Osborn’s resulting death, thus satisfying her burden of proof under the applicable general workers’ compensation principles. See Quinones, 630 So.2d at 1306; LSA-R.S. 23:1031 and 1231. Accordingly, Ms. Osborn is entitled to recover death benefits.

CONCLUSION

For the foregoing reasons, the judgment appealed from is reversed. This matter is remanded to the OWC for the calculation of the death benefits to which Ms. Osborn is entitled. Costs of this appeal are assessed to Unit Drilling Company and Liberty Mutual Insurance Company.

REVERSED AND REMANDED.

      . The supreme court noted:
      For example, "heart-related” under 23:1021(7)(e) would not apply to the injury resulting from the puncture of an employee’s chest and heart by a piece of equipment. ... [Further,] it is medically possible for an aneurysm, embolism, or a severe bruise (which is technically an injury to a vessel) to result from a physical impact to a part of the body. For example, the blow of a falling piece of merchandise or equipment on a limb could cause an embolism or aneurysm at the point of impact. These types of injuries also would clearly not fall under the scope of La.R.S. 23:1021(7)(e).