author: WEIMER, Justice. 11 VICTORY J.,

text:
    Alma M. JONES v. GENERAL MOTORS CORPORATION.
    No. 2003-C-1766.
    Supreme Court of Louisiana.
    April 30, 2004.
    Rehearing Denied June 25, 2004.

      Alexander S. Lyons, Shreveport, for applicant.
    Lunn, Irion, Johnson, Salley & Carlisle, Joseph M. Lattier, for respondent.
   WEIMER, Justice.

This matter is before the court on the limited issue of whether this employer is entitled to a credit against its workers’ compensation obligations pursuant to a purported reimbursement agreement executed by an injured employee.

The judgment rendered by the workers’ compensation judge awarded the employee workers’ compensation benefits subject to a credit to the employer for payment of sickness and accident benefits. For reasons that follow, we find the agreement is unenforceable, and the employer is not entitled to a credit.

FACTS AND PROCEDURAL HISTORY

In 1983, Alma M. Jones began employment with General Motors Corporation (GM) at an assembly plant in Shreveport, Louisiana. During the course of her employment, she sustained a work-related injury on January 15, 1999, when a lever on the assembly machine she operated suddenly struck her right thumb severing the tip of the thumb. The injury required a partial amputation of the thumb and resulted in a total impairment of the thumb of 36 percent, the equivalent of an 8 percent whole-person impairment.

Dr. John Knight, the orthopedic surgeon who performed the partial amputation, released Jones to return to light duty work on March 29, 1999. The physician indicated that if the job she was performing at the time of injury was not available, a job must be found within the restrictions outlined in the functional capacity evaluation. Because her former job was unavailable and there were no jobs available within the set restrictions, GM discontinued the workers’ compensation benefits for temporary total disability it had been paying and began paying Jones workers’ compensation benefits for permanent partial disability until May 21, 1999, at which time all workers’ compensation benefits were terminated.

On July 28, 1999, Jones filed a disputed claim for workers’ compensation benefits, penalties and attorney fees. GM answered, denying that claimant was entitled to any additional workers’ compensation benefits or medical expense reimbursement beyond what had already been paid; GM also asserted all rights to reduce benefits pursuant to LSA-R.S. 23:1206 and LSA-R.S. 23:1225, rights to credits or offsets set forth in LSA-R.S. 23:1221(3), rights to deny or reduce payments for medical expenses pursuant to LSA-R.S. 23:1142, and credit for medical expenses pursuant to LSA-R.S. 23:1212.

At the trial of this matter, three documents that relate to the issue involved in this matter were introduced into evidence.

A joint exhibit, J-2, showed the workers’ compensation benefits GM paid to Jones following her accident on January 15,1999. GM paid Jones temporary total disability benefits of $367.00 per week from February 1, 1999, through March 28, 1999, and permanent partial disability benefits of $367.00 per week thereafter through May 21, 1999.

GM introduced into evidence, as exhibit D-4, a so-called “Reimbursement Agreement” that was signed by Jones on January 25, 1999, nine days following her accident and prior to her receipt of any wage-loss benefits. The Reimbursement Agreement concerns her purported consent to repayment of workers’ compensation benefits or sickness and accident and extended disability benefits (sickness/accident benefits) paid by the General Motors Life and Disability Benefits Program (Benefits Program), which is totally funded by GM. The Reimbursement Agreement is the basis for GM’s claim to a credit toward any obligation to Jones for workers’ compensation benefits for the thumb injury subsequent to May 21, 1999. (The text of the Reimbursement Agreement is reproduced, infra.)

Jones introduced into evidence an undated letter to her from GM (exhibit P-16), in which GM set out the amounts and dates of its payments to Jones pursuant to the Benefits Program. The letter shows that, in addition to the workers’ compensation benefits evidenced in J-2, Jones received sickness/accident benefits of $123.00 per week for the period from February 1, 1999, through March 28, 1999, sickness/accident benefits of $490.00 per week for the period from March 29, 1999, through January 14, 2000, and extended disability benefits that totaled $1,670.23 for the period of January 15, 2000, through February 9, 2000.

GM’s total payment of sickness/accident benefits pursuant to the Benefits Program for the thumb injury from February 1, 1999, through February 9, 2000, was $23,234.23. According to exhibit P-16, GM claimed that amount included a “gross overpayment” of sickness/accident benefits from February 1,1999, through February 9, 2000, of $13,613.90. GM calculated the overpayment on the basis of Jones’s receipt during that time period of Social Security disability benefits of $1,189.00 per month, plus two cost-of-living increases. The letter states the gross overpayment represents the weekly Social Security disability benefits “carveout amount” that should have been deducted from the employee’s weekly sickness/accident benefits. Pursuant to exhibit P-16, GM began making regular salary deductions of $50.00 per week, which amounted to a total in excess of $3,000.00 by the time of trial.

Following trial on the merits, the workers’ compensation judge (WCJ) ruled that Jones was entitled to workers’ compensation benefits for temporary total disability from March 29, 1999, through June 21, 1999, based on an average weekly wage of $1,166.40 and a maximum weekly compensation rate of $367.00. LSA-R.S. 23:1221(1); LSA-R.S. 23:1202. The WCJ also ruled that Jones was also entitled to supplemental earnings benefits from June 22, 1999, through February 9, 2000, based on the same wage and maximum compensation rate, with a zero earning capacity for such period. LSA-R.S. 23:1221(3).

The WCJ granted GM a dollar-for-dollar credit for sickness/accident benefits paid through February 9, 2000, excluding amounts deducted from Jones’s earnings by defendant as reimbursement for overpayment of benefits to her. The “amounts” from “earnings” referred to in the judgment were evidenced by the letter from GM to Jones, which was introduced into evidence as exhibit P-16.

Both parties appealed. Jones assigned error to the ruling that GM was entitled to the dollar-for-dollar credit. GM appealed the award of additional compensation benefits.

Except for a minor amendment, the court of appeal affirmed the judgment. Jones v. General Motors Corporation, 37,167 (La.App. 2 Cir. 4/9/03), 847 So.2d 6. Jones filed a motion for rehearing, arguing that the court of appeal incorrectly interpreted the statutory scheme for offsets established by the legislature in LSA-R.S. 23:1225(C)(1).

On rehearing, in a per curiam opinion, the court clarified its reasons for holding that GM was entitled to take a dollar-for-dollar credit for amounts paid under the Benefits Program. The court considered the question of whether an employer may enforce a reimbursement agreement when that agreement causes the worker’s recovery of benefits from multiple sources to go below 66 2/3 percent of the worker’s average weekly wage. Jones, 37,167 at 1, 847 So.2d at 16. The court of appeal acknowledged that the original opinion relied on the statutory provision of LSA-R.S. 23:1225(C)(3) to uphold the Reimbursement Agreement. On further consideration, the court of appeal found that statutory provision to be inapplicable to the current controversy.

The court then analyzed the Reimbursement Agreement under the provisions of LSA-R.S. 23:1225(C)(l)(c). Considering the language of that section of the statute, the court concluded: (1) the employee was not entitled to aggregate remuneration from multiple sources which exceeded 66 2/3 percent of the average weekly wage; (2) the statute does not place a lower limit on the amount of workers’ compensation benefits that must be awarded, which minimum is established by other statutes; and (3) the statutory cap of 66 2/3 percent may be varied by agreement. The court found that the Reimbursement Agreement between the parties did not violate public policy and was thus enforceable. All other aspects of the original opinion were maintained.

Jones applied for writ of certiorari, which this court granted to review the propriety of the ruling. Jones v. General Motors Corporation, 03-1766 (La.11/7/03), 857 So.2d 506.

DISCUSSION

Workers’ compensation is only one part of an employer-based system of wage-loss protection. The overall system of benefits by which employers provide their employees with protection against loss of wages includes unemployment compensation, nonoccupational sickness and disability insurance, and old age and survivors’ insurance. Garrett v. Seventh Ward General Hospital, 95-0017, p. 3 (La.9/22/95), 660 So.2d 841, 843, citing 4 ARTHUR LARSON, WORKER’S COMPENSATION § 97.10 (1995).

In the instant case, GM provided its employees with the Benefits Program and argues it is entitled to recover an amount equal to the total of sickness/accident benefits paid to Jones based upon the Reimbursement Agreement executed by her pursuant to that program. In its post-argument brief to this court, GM contends the statutory authority applied by the court of appeal, LSA-R.S. 23:1225(0(1), has no relevance to the disposition of the issue of GM’s entitlement to a 100 percent dollar-for-dollar credit for sickness/accident benefits paid against any workers’ compensation benefits due Jones for the same time period. GM alternatively contends LSA-R.S. 23:1206, which provides for deductions from workers’ compensation benefits for voluntary payments, is controlling. GM relies on the language of Section 1206 (“Any voluntary payment ... by the employer ... to the employee ... which [was] not due and payable when made, may be deducted from the payments to be made as compensation.”) and the decision of the second circuit in Hughes v. General Motors Guide Lamp Division, 469 So.2d 369 (La.App. 2 Cir.1985). GM contends these authorities entitle GM to a 100 percent dollar-for-dollar credit for siekness/ae-cident benefits paid against any workers’ compensation benefits due Jones for the same time period.

The Louisiana Workers’ Compensation Law, LSA-R.S. 23:1021 et seq. contains a provision for wage-loss benefits coordination in LSA-R.S.23:1225. Wage-loss benefit coordination legislation within the overall scheme of the Louisiana Workers’ Compensation Law is designed for a dual purpose: first, to assure, when an employee suffers a wage loss because of disability, that a certain minimum portion of the employee’s actual wages is continued; and second, to preclude an employee from contemporaneously collecting dupli-cative wage-loss benefits under different parts of the overall system of employer-based protection against loss of wages. The underlying concept is that an employee cannot recover more than the amount of his or her actual wages. Garrett, 95-0017 at 3-4, 660 So.2d at 843. Receiving more than one’s wages without working would be an impermissible disincentive to productivity, which the law does not sanction.

In 1983, the legislature passed a comprehensive coordination of benefits scheme, restricting payment of some benefits and stating aggregate remuneration shall not exceed sixty-six and two-thirds of average weekly wages with respect to other coordinated benefits listed. The legislation included the statutory provision at issue in the instant case, LSA-R.S. 23:1225(0(1), which provides in pertinent part:

C. (1) If an employee receives remuneration from:
(a) Benefits under the Louisiana Workers’ Compensation Law.
(c) Benefits under disability benefit plans in the proportion funded by an employer.
(d) Any other workers compensation benefits, then compensation benefits under this Chapter shall be reduced, unless there is an agreement to the contrary between the employee and the employer liable for payment of the workers’ compensation benefit, so that the aggregate remuneration from sub-paragraphs (a) through (d) of this Paragraph shall |innot exceed sixty-six and two-thirds percent of his average weekly wage. (Underlining supplied.)[]

Thus, if the total remuneration contemplated in Section 1225(C)(1) exceeds 66 2/3 percent of a worker’s average weekly wage, the employer is allowed to reduce its workers’ compensation obligation in an amount equal to the excess benefits. The jurisprudence has held that the benefits can only be reduced to the level of 66 2/3 percent of the average weekly wage. This court held in Garrett, 95-0017 at 13, 660 So.2d at 848 (overruled on other grounds in Al Johnson Construction Company v. Pitre, 98-2564, p. 10, (La.5/18/99), 734 So.2d 623, 628), the employee’s aggregate remuneration could not go below 66 2/3 percent of the average weekly wage. Following this concept, courts of appeal have held that the offset of Section 1225(C)(1) cannot reduce the injured worker’s combined benefits below 66 2/3 percent of average weekly wages. See, e.g., Fontenot v. Trans Gulf, Inc., 95-0342, p. 18 (La.App. 1 Cir. 11/9/95), 664 So.2d 1238, 1250; G.N.B., Inc. v. Jones, 29,779, p. 7 (La.App. 2 Cir. 8/20/97), 699 So.2d 466, 470; Pace v. City of New Orleans, 99-1661, p. 5 (La.App. 4 Cir. 4/19/00), 761 So.2d 602, 605.

However, GM argues that it is entitled to recover an amount equal to the total of sickness/accident benefits paid to Jones pursuant to the Benefits Program because its Reimbursement Agreement is an “agreement to the contrary” permitted by Section 1225(C)(1). The crux of GM’s argument centers on the applicability of the Reimbursement Agreement presented to Jones by GM for her signature. The agreement provides as follows:

AGREEMENT RE: Sickness and Accident and Extended Disability Benefit payments covering a period or periods for which Workers Compensation may later be paid.
In consideration of . Sickness and Accident and Extended Disability Benefits paid to me under the General Motors Life and Disability Benefits Program (“the Program”), and pursuant to the provisions of the Program, I, the undersigned, for myself, my heirs, assignees, executors, administrators, or personal representatives, hereby agree to repay to my employer a sum equal to the overpayment of Program benefits which is equal to the lesser of the total of any Workers Compensation benefits for loss of wages which becomes due me as the result of voluntary agreement or by award for the period or periods that such Sickness and Accident and Extended Disability Benefit payments were made, or the total of such Sickness and Accident and Extended Disability Benefit payments. I understand that under the General Motors Life and Disability Benefits Program, the scheduled amount of Sickness and Accident and Extended Disability Benefits, for such period or periods, should be reduced by any weekly Workers Compensation benefits to which I am entitled, and if such repayment is not made within sixty days after request is made by the Corporation for repayment thereof, the amount may be deducted, to the extent allowed by applicable law, by the Corporation from any amounts, including, but not limited to, wages thereafter payable to me.

Despite the fact that the first sentence states Jones’s obligation under the Reimbursement Agreement is “pursuant to the provisions of the Program” and the second sentence states that “under the ... Program” a reduction of sickness/accident benefits is called for, GM did not introduce the Benefits Program provisions into evidence at the trial of this matter. As such, essential evidence is not available for this court’s review in evaluating the Reimbursement Agreement.

Section 1225(C)(1), which authorizes a reduction of the workers’ compensation obligation when the employee receives other enumerated benefits, is a restriction on an injured employee’s right to workers’ compensation benefits and must be strictly construed. Cousins v. City of New Orleans, 608 So.2d 978, 981 (La.1992). An employer seeking credit for benefits covered by the statute has the burden of proving both entitlement to and the amount of the credit. Matthews v. City of Alexandria, 619 So.2d 57, 60 (La.1993). GM is claiming a credit against its workers’ compensation obligation; therefore, GM has the burden of proving the amount of the credit to be applied. Without the pertinent provision(s) of the Benefits Program in evidence, this court has no choice but to find that GM failed to meet its burden of proof. Thus, we can only evaluate Jones’s obligations pursuant to the language within the four corners of the Reimbursement Agreement.

Contracts between employers and employees concerning wage-loss benefits are not prohibited. Louisiana Revised Statutes 23:1225(C)(l)(d) specifically mentions an “agreement ... between the employee and the employer.” However, an agreement which waives or alters statutorily established rights must be “clear and unambiguous.” See, e.g., Prince v. Paretti Pontiac Company, Inc., 281 So.2d 112, 117 (La.1973). This is particularly so in the workers’ compensation arena which is designed to benefit the injured worker. See also, LSA-R.S. 23:1033 which imposes a limitation on a contract which relieves the employer of compensation liability. The agreement must clearly evidence the intent of the parties. See Green v. New Orleans Saints, 00-795 (La.11/13/00), 781 So.2d 1199, where this court held the agreement between the parties did not waive the team’s statutory entitlement to an offset.

The Reimbursement Agreement is written in convoluted, confusing double-speak, as if designed to prevent ease of understanding. It is so poorly drafted as to be all but unintelligible. The words “equal to” appear twice within 8 words of one another in the first sentence, which consists of 122 words. When the two sentences of the Reimbursement Agreement are stripped of excess verbiage, the second sentence may contradict the first. Untold judicial time has been consumed in an attempt to comprehend and give meaning to this document to no avail.

The first full sentence of the Reimbursement Agreement, although far from clear, apparently obligates Jones to repay the lesser of two amounts: 1) sickness/accident benefits paid to her or 2) payments of GM’s total workers’ compensation liability. Apparently, the Reimbursement Agreement contemplates a simultaneous payment by GM to Jones of sickness/accident benefits and workers’ compensation benefits. Because of this agreement, GM claims it is due a dollar-for-dollar credit for the payments made pursuant to the Benefits Program against the amount of workers’ compensation it has been ordered to pay.

We hold the agreement as written, without proof of the contents of' a Benefits Program provision authorizing such reimbursement, is unenforceable. In the absence of an “agreement to the contrary,” workers’ compensation benefits received by an employee can only be reduced when the aggregate remuneration from the listed benefit sources in Section 1225(C)(1) exceeds 66 2/3 percent of the average weekly wage. If the aggregate remuneration received by the employee is equal to or less than 66 2/3 percent of the average weekly wage, no adjustment to the workers’ compensation benefits would occur.

The record presented for our review contains unrefuted evidence (exhibit P-16) that GM made, and continues to make, payroll deductions which must be factored into the calculation in order to determine the amount of sickness/accident benefits actually received by Jones that will in turn be added to the workers’ compensation benefits to determine whether the amount received from multiple benefit sources exceeds 66 2/3 percent of her average weekly - wage.

The amounts of the sickness/accident benefits paid, the lesser amounts GM calculated the Program should have paid (due to the Social Security, disability benefits Jones received), and the resulting overpayment that GM demanded' Jones repay (through salary deductions) were tabulated in exhibit P-16 in various time segments. For example, from March 29, 1999, through July 11, 1999, the Program paid weekly sickness/accident benefits of $490.00, but claimed it should have paid only $215.40 because Jones received Social Security disability benefits during that time period. The difference, according to GM, was added to the “total overpaid” to form the aggregate amount that eventually would be deducted from Jones’s wages.

Because of the payroll deductions, GM effectively paid $215.40 per wéek in sickness/accident benefits and owes $367.00 per week in workers’ compensation benefits or supplemental earnings benefits from May 22, 1999, to February 9, 2000.

We have separated the time span of Jones’s disability into segments and determined that Jones’s weekly aggregate remuneration did not exceed 66 2/3 percent of her average weekly wages in any of those segments. (See attached appendix: CALCULATIONS OF AGGREGATE REMUNERATION.) Thus, GM is not entitled to a credit toward its workers’ compensation obligation pursuant to LSA-R.S.23:1225(C)(1).

CONCLUSION

For the foregoing reasons, we conclude the Reimbursement Agreement is unenforceable. Without an “agreement to the contrary,” the LSA-R.S. 23:1225(C)(1) provision for a reduction of workers’ compensation benefits for aggregate remuneration is grounded on the requirement that the employee’s aggregate remuneration from the listed sources exceeds 66 2/3 percent of the employee’s weekly wages. Because the weekly sickness/accident benefits (with salary deductions excluded as the judgment requires), when added to the weekly workers’ compensation benefits due, do not exceed 66 2/3 of Jones’s weekly wage, GM is not entitled to the statutory credit.

DECREE

Having found GM is not entitled to a credit, we reverse the portion of the judgment awarding a dóllar-for-dollar credit. In light of the workers’ compensation benefits previously paid by GM from March 29, 1999, through May 21, 1999, we amend the judgment to award Jones temporary total disabilities from May 22, 1999, (instead ' of from March 29, 1999) through June 7, 1999. The portion of the judgment, as amended by the court of appeal, awarding supplemental earnings benefits from June 8, 1999, through February 9, 2000, is unaffected by this decision.

REVERSED, AMENDED AND RENDERED.

VICTORY, J., dissents and assigns reasons.

APPENDIX

CALCULATIONS OF AGGREGATE REMUNERATION:

02/01/99 through 03/28/99:

1. Net sickness/accident benefits paid weekly ($123.00 paid less $123.00 salary deduction) 0.00

2. Weekly workers’ compensation benefits 367.00

3.Total 367.00

4. Two-thirds of average weekly wage 777.40

5. Offset due (amount of 3 that exceeds 4) 0.00

03/29/99 through 05/21/99:

1. Net sickness/ accident benefits paid weekly ($490.00 paid less $274.60 salary deduction) 215.40

2. Weekly workers’ compensation benefits 367.00

3. Total 582.40

4. Two-thirds of average weekly wage 777.60

5. Offset due (amount of 3 that exceeds 4) 0.00

05/22/99 through 11/30/99:

1. Net sickness/ accident benefits paid weekly ($490.00 paid less $274.60 salary deduction) 215.40

2. Weekly workers’ compensation benefits 367.00

3. Total 582.40

4. Two-thirds of average weekly wage 777.60

5. Offset due (amount of 3 that exceeds 4) 0.00

| igl2/01/99 through 12/31/99:

1. Net sickness/ accident benefits paid weekly ($490.00 paid less $281.29 salary deduction) 208.71

2. Weekly workers’ compensation benefits 367.00

3. Total 575.71

4. Two-thirds of average weekly wage 777.60

5. Offset due (amount of 3 that exceeds 4) 0.00

01/01/00 through 01/14/00:

1. Net sickness/ accident benefits paid weekly ($490.00 paid less $282.45 salary deduction) 207.55

2. Weekly workers’ compensation benefits 367.00

3. Total 574.55

4. Two-thirds of average weekly wage 777.60

5. Offset due (amount of 3 that exceeds 4) 0.00

01/15/00 through 02/09/00 (26-day period):

1. Net sickness/ accident benefits paid weekly ($1,670.23 paid less $1,050.23 salary deduction) 620.00

2. Weekly workers’ compensation benefits 1,363.15

3. Total ($76.27/day or $533.92/week) 1,983.15

4. Two-thirds of average weekly wage 777.60

5. Offset due (amount of 3 that exceeds 4) 0.00

11 VICTORY J.,

dissenting.

I respectfully dissent from the majority’s opinion. La. R.S. 23:1225(0(1) provides a ceiling for total employee remuneration as a result of work-related injuries, including both employer-funded benefit plans and any workers compensation benefits to which the employee may be entitled. It reduces any benefits which exceed “sixty-six and two-thirds percent of [an employees] average weekly wage,” as a way to ensure that there is coordination in the total amount of employee disability payments, taking into account the different sources of these payments. However, this is only used as the basis for a reduction of benefits if there is not “an agreement to the contrary between the employee and employer.” In other words, while normally any contribution above sixty-six and two-thirds percent would be the basis.for a reduction in benefits, the statute allows the employer and employee the liberty to come to their own agreement regarding reduction of benefits, regardless of whether the aggregate benefits under La. R.S. 23:1255(0) exceed sixty-six and two-thirds percent of the employee’s weekly wages.

Here, General Motors and its employees opted out of the “sixty-six and two-thirds” level of maximum remuneration, instead making an “agreement to the contrary.” In this agreement, and in consideration of the considerable benefit package with which the employees were provided, the employee agreed to “repay ... the lesser of ... the Workers Compensation benefits ... or [the] Sickness and Accident and Extended Disability payments [ie. the employer-funded benefit plan]” if both were paid during the same period of time. Thus, if the employee was receiving benefits under both Workers Compensation and the Employer-Funded Benefit Plan simultaneously, the employee has agreed to repay General Motors the lesser of these two amounts. Contrary to the holding of the majority, in my view their agreement was enforceable as “an agreement to the contrary” under La. R.S. 23:1225(C)(1). For the foregoing reasons, I would affirm the ruling by the court of appeal, which enforced the parties’ contract.

      . Jones returned to work in February of 2000, at the same job subject to certain restrictions. Shortly after Jones returned to work, she suffered another injury and was forced to take sick leave. That injury is not a part of this appeal. Jones moved to Arlington, Texas, in October 2000, and commenced working for the GM plant in that location.

      . The amount consists of payments of $123.00 for 8 weeks, $490.00 for 42 weeks, and $1,670.23 for January 15, 2000, through February 9, 2000.

      . The amount consists of overpayments of sickness and accident benefits through January 14, 2000, of $12,563.67 ($13,749.96 less $1,186.29 in payments for another injury) plus overpayments of extended disability benefits from January 15, 2000, through February 9, 2000, of $1,050.23.

      . Louisiana Revised Statutes 23:1221(3) provides, in pertinent part:
      (a) For injury resulting in the employee’s inability to earn wages equal to ninety percent or more of wages at time of injury, supplemental earnings benefits equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. Average monthly wages shall be computed by multiplying his "wages” by fifty-two and then dividing the quotient by twelve.
      Louisiana Revised Statutes 23:1202 provides, in pertinent part:
      (2) For injuries occurring on or after July 1, 1983, the maximum weekly compensation to be paid under this Chapter shall be seventy-five percent of the average weekly wage paid in all employment subject to the Louisiana Employment Security Law, and the minimum compensation for total disability shall be not less than twenty percent of such wage, said maximum and minimum to be computed to the nearest multiple of one dollar. There shall be no minimum compensation for benefits payable pursuant to R.S. 23:1221(3) or (4). In any case where the employee was receiving wages at a rate less than the applicable minimum compensation, the compensation shall be the employee's "wages". In no event shall monthly Supplemental Earnings Benefits exceed four and three tenths times temporary total disability benefits.
      B. For the purposes of this Chapter, the average weekly wage in all employment subject to the Louisiana Employment Security Law shall be determined by the administrator of the Louisiana Employment Security Law on or before August first of each year as of the quarter ending on the immediately preceding March thirty-first of each year. The average weekly wage so determined shall be applicable for the full period during which compensation is payable when the date of occurrence of injury falls within the twelve-month period commencing September first following the determination.
      Although LSA-R.S. 23:1221(1) ostensibly allows for 66 2/3 percent of the employee’s weekly wage, that amount, in turn, is subject to a maximum weekly workers’ compensation amount provided for in Section 1202. Thus, although 66 2/3 percent of Jones’s weekly wage is $777.60 (66 2/3 percent of $1166.40), the actual maximum workers’ compensation benefits she was entitled to is $367.00 based on the provisions of Section 1202.

      . Louisiana Revised Statutes 23:1221(3) provides, in pertinent part:
      (a) For injury resulting in the employee's inability to earn wages equal to ninety percent or more of wages at time of injury, supplemental earnings benefits equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. Average monthly wages shall be computed by multiplying his "wages” by fifty-two and then dividing the quotient by twelve.

      . The court of appeal noted that in P-16 GM demanded and apparently was receiving payment from Jones for overpayments of sickness/accident benefits under the Benefits Program due to Social Security disability payments which she received for the period February 1, 1999, through March 22, 2000. Except for excluding the salary deduction amounts from the credit granted to GM, the WCJ did not address the reimbursement. Nor was the reimbursement discussed by the court of appeal.

      . The remaining provisions of the judgment are not contested and will not be addressed in this opinion. Also, GM did not apply for a writ to this court, thus abandoning its argument that the award of additional compensation benefits was erroneous.

      . The decision rendered by the court of appeal amended the judgment to award temporary total disability benefits to Jones until June 7, 1999 (rather than June 21, 1999) and supplemental earnings benefits from June 8, 1999 (rather than June 22, 1999) through February 9, 2000. The amendment did not affect the total amount of the award.

      . See text of LSA-R.S. 23:1225(C)(1), infra.

      . Louisiana Revised Statutes 23:1225(C)(3) provides:
      If an employee is receiving both workers’ compensation benefits and disability benefits subject to a plan providing for reduction of disability benefits, the reduction of workers' compensation benefits required by Paragraph (1) of this Subsection shall be made by taking into account the full amount of employer funded disability benefits, pursuant to plan provisions, before any reduction of disability benefits are made.

      . The court determined LSA-R.S. 23:1225(C)(3) was designed to allocate the offset to the compensation insurer where both the insurer and a disability plan seek to employ the offset.

      . In her motion for rehearing, Jones argued, in the alternative, that the court of appeal erred in failing to address whether the Reimbursement Agreement between GM and herself was a violation of the Employment Retirement Income Security Act of 1974 (ERISA). The court of appeal found the Reimbursement Agreement was authorized by and enforceable under the Louisiana Workers' Compensation Law. The court of appeal indicated that GM was asserting rights to a credit to its compensation obligation and was not seeking a money judgment in favor of the disability plan. Because of our disposition of this matter, it is unnecessary to consider the ERISA argument.

      . In Hughes, the court of appeal enforced a nearly identical reimbursement agreement and allowed the employer to take a dollar-for-dollar credit against workers' compensation benefits for sums paid under an employer-funded group disability plan. However, on the date of the accident in Hughes, paragraph C of Section 1225 had not been enacted. The statute in place at the time of the accident is the applicable law. Thus, the court did not consider the application of the statutory provision that is at issue in the instant case. Section 1225(C)(4) provides that this law prevails over other laws. Assuming for the sake of discussion that the sickness/accident benefits paid were "not due and payable” to Jones, Section 1225(C)(1) now applies in the instant case in lieu of Section 1206 pursuant to Section 1225(C)(4).
      This rather belated argument of GM is not persuasive.

      . The legislature also enacted LSA-R.S. 23:1225(B), which provides that no workers’ compensation benefits (whether for total disability or SEB payments) are payable for any week in which the employee has received unemployment compensation benefits.

      . Underlining indicates wording added to this paragraph by Act 469 of 1991. The title of the act refers to the legislation as "remedial” and states the purpose was to provide for "a reduction in benefits when other benefits are received” and to provide for a "maximum aggregate remuneration.”
      The Digest of the act states that when Act No. 454 of the 1989 regular session was enacted, some language of the prior law was omitted through typographical error. The 1991 amendment, according to the Digest, inserts the omitted language and retains the original sense of the prior law, providing that benefits due under state workers’ compensation law shall be reduced, unless there is an agreement to the contrary between the employee and employer, if an employee receives the benefits now designated as "a" through "d."
      The amendment was introduced as House Bill No. 506. At the committee hearings, testimony by representatives of diverse interests, such as Wayne Fontana and Clark Cosse for the Louisiana Association of Business and Industry and Carey Simoneaux for the AFL-CIO, was heard in support of the bill.
      The Act passed through both chambers of the legislature and their respective committees without amendment and by overwhelming majorities.
      The parenthetical phrase allowing an agreement between the employer and employee is not mentioned in the title of the act, and the legislative history sheds no light on precisely what type of agreement was contemplated by the legislature.

      . We note the Reimbursement Agreement was not signed by a representative of GM and appears to be in the nature of a release by Jones ''[i]n consideration of” possible future payments from the Benefits Program that may or may not be forthcoming. The document was presented to Jones for her signature nine days after the on-the-job accident, when she was injured, unable to work, and receiving no wage-loss benefits whatsoever. The Reimbursement Agreement offered to Jones an apparently simple means of obtaining a flow of money at a time she was in need. GM, as employer and Benefits Program provider/administrator, had the superior advantage and power either to immediately pay benefits to an injured employee or to contest the amounts. Without the ability to review the Benefits Program provisions, it is impossible to determine GM’s obligation.

      . We in no way suggest an employer and employee cannot confect an agreement related to a benefits package. Indeed, such a benefits package can serve the employee by providing benefits for the employee hurt off the job, which injury would not be covered by workers’ compensation.

      . For an illustration of the differences between a dollar-for-dollar credit and a week-by-week offset, see, Green v. New Orleans Saints, 00-0795 (La.11/15/00), 781 So.2d 1199.

      . For an example of the method of calculating an offset, see Niles, Juge and Cosse, LABI Workers’ Compensation Desk Book, Ch. 11, p. 1-25 (1990).

      . P-16 represents a unilateral demand on GM's part. GM has not cited any authority for the proposition that the reductions to the sickness/accident benefits due to Jones’s receipt of Social Security disability benefits are authorized by statute or the jurisprudence. Indeed, the authorities state otherwise.
      In 1978, the legislature added LSA-R.S. 23:1225 (now R.S. 23:1225(A)) to the Louisiana Workers’ Compensation Law to provide a "reverse offset loophole" that allows workers’ compensation benefits for permanent total disability to be offset by Social Security disability benefits to the extent that the combined amount, absent the law, would result in a reduction of the Social Security payments. 13 WEX MALONE & H. ALSTON JOHNSON, III, LOUISIANA CIVIL LAW TREATISE: WORKERS' COMPENSATION LAW AND PRACTICE, § 289 at 732 (4th ed., 2002). The legislature limited the 1978 reverse offset provision to workers' compensation benefits for permanent total disability. An employer of a worker who was neither entitled to nor receiving workers' compensation benefits for permanent total disability cannot claim the reverse offset of Section 1225(A). Garrett, 95-0017 at 7, 660 So.2d at 845. After the 1978 legislation which limited the reverse offset to benefits for permanent total disability, the federal government established a cutoff date of February 18, 1981, for the states to enact reverse offset provisions, or add to or alter the scope of an existing state reverse offset statute. The result was that Louisiana employers receive the advantage of the reverse offset reduction only when the employee is permanently totally disabled. Al Johnson Construction Company, 98-2564 at p. 8, 734 So.2d at 627. Thus, because Jones was not permanently totally disabled, GM’s action in claiming the reduction appears to be proscribed by the statutory provisions and the jurisprudence.
      Additionally, Louisiana Revised Statutes 23:1225(A) provides that “there shall be no reduction in benefits provided under this Section for the cost-of-living increases granted under the federal law after the date of the employee’s injury.” Despite this clear wording, GM’s calculations of "overpayments" evidenced by P-16 include figures that represent two such cost-of-living increases.
      Nor has GM shown that the Benefits Program provisions provide for recovery of amounts equivalent to Social Security benefits'received by Jones. Nevertheless, Jones has acquiesced in the P-16 reductions, as she has not made them an issue in this litigation.


source: Caselaw Access Project

author: 11 JOHNSON, J.,

license: Public Domain

text:
    JCM CONSTRUCTION COMPANY, INC. v. ORLEANS PARISH SCHOOL BOARD. Orleans Parish School Board v. Michael J. Gegg d/b/a JCM Construction Co., Integon Indemnity Corporation, Aetna Casualty & Surety Company, Guy Michael Leppich, in his capacity as the Natural Tutor of Daniel Leppich, his Minor Son, Barbara Phillips, et al. Integon Indemnity Corporation v. Orleans Parish School Board and Michael J. Gegg.
    No. 2004-C-0059.
    Supreme Court of Louisiana.
    April 30, 2004.
   In re Orleans Parish School Board;— Defendant; Applying for Writ of Certiora-ri and/or Review, Parish of Orleans, Civil District Court, Div. M, Nos. 91-10599, 91-12952, 99-8807; to the Court of Appeal, Fourth Circuit, Nos. 2002-CA-0824, 2003-C-0299, 2003-CA-1077, 2002-CA-0825, 2002-CA-0826 and 2001-C-1930.

Writ denied.

CALOGERO, C.J., and VICTORY, J., would grant the writ.

JOHNSON, J., would grant the writ and assigns reasons.

11 JOHNSON, J.,

would grant the writ application for the following reasons.

I can find no jurisprudence that would support this award of money damages. In this case, a contractor won a judgment against the Orleans Parish School Board (“School Board”) in the amount of $663,152, for negligent misrepresentation, malicious prosecution, and detrimental reliance after the School Board sued him for damages sustained as a result of his failure to obtain builders’ risk insurance.

Article 20 of the “General Conditions” attached to the contract at issue required Gegg, the contractor, to “effect and maintain, until the date of filing of the Owner’s acceptance of the work” various types of insurance, including “Builders’ Risk Insurance for Fire, Extended Coverage, Vandalism, and Malicious Mischief.” Gegg obtained general liability and other insurance coverage, but he did not obtain builder’s risk insurance.

On June 4, 1991, Gegg filed suit against the School Board, seeking the balance due him under the contract. On July 14, 1991, the School Board filed suit against Gegg and his surety, Integon, seeking the value of the portable classrooms that were destroyed by fire. The cases were later consolidated.

The School Board moved for partial summary judgment, alleging that Gegg and Integon were solidarity liable for all damages sustained as a result of Gegg’s failure to obtain builder’s risk insurance as required by the contract. The trial court granted the School Board’s motion for partial summary judgment, and the court of appeal reversed, finding that the School Board’s authorized agent accepted Gegg’s certificate of liability insurance without requiring any further insurance. The appellate court concluded that the acceptance of the insurance certificate precluded any questions about the sufficiency of Gegg’s insurance coverage. The matter was remanded for further proceedings. JCM Construction Co. v. Orleans Parish School Board, 95-0567 (La.App. 4 Cir. 10/12/95), 663 So.2d 429, writ denied, 95-2748 (La.2/2/96), 666 So.2d 1089.

On remand, Gegg amended his petition to add negligent misrepresentation and detrimental reliance claims against the School Board’s insurance consultant in connection with the consultant’s approval of the certificate of insurance. The consultant moved for summary judgment, which the trial court granted. The court of appeal affirmed, finding that Gegg had notice that the relationship between the School Board and the consultant was one of a principal-agent. The court of appeal concluded that the consultant, as an agent for the School Board, was acting within his authority when he approved Gegg’s certificate of insurance. Orleans Parish School Board v. Gegg, 97-0947 (La.App. 4 Cir. 1/14/98), 708 So.2d 425.

Subsequently, Integon brought an action against Gegg and the School Board, and Gegg filed a third party demand against the School Board for inter alia, negligent misrepresentation, detrimental reliance, malicious prosecution. These matters were consolidated.

The instant writ application comes before us following the bench trial on the negligent misrepresentation, malicious prosecution, and detrimental reliance claims against the School Board.

Malicious prosecution is the wrongful institution or continuation of a criminal or civil proceeding. Shepherd v. Williams, 2000-01506 (La.App. 3 Cir. 2/28/01), 780 So.2d 633; Frank L. Maraist & Thomas C. Galligan, Jr., Louisiana Tort Law, Section 2 — 6(d) at p. 31 (1996). An action for malicious prosecution requires proof of the following elements: (1) the commencement or continuance of an original criminal or civil proceeding; (2) its legal causation by the present defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damage conforming to legal standards resulting to the plaintiff. Miller v. East Baton Rouge Parish Sheriff’s Department, 511 So.2d 446 (La.1987); Jones v. Soileau, 448 So.2d 1268 (La.1984); Plessy v. Hayes Motor Co., Inc., 31-947 (La.App.2d Cir.6/16/99), 742 So.2d 934; Jenkins v. Baldwin, 2000-0802 (La.App. 4th Cir.8/29/01), 801 So.2d 485; Winn v. City of Alexandria, 96-492 (La.App. 3d Cir.11/20/96), 685 So.2d 281.

A plaintiff must prove not only malice but show there was no probable cause. Probable cause does not depend upon the actual state of the case in point of fact, but on the honest and reasonable belief of the party prosecuting. Eusant v. Unity Industrial Life Ins. and Sick Benefit Ass’n of New Orleans, Inc., 195 La. 347, 353, 196 So. 554, 556 (La.1940). See also Craig v. Carter, 30,625, pp. 6-7 (La.App. 2 Cir. 9/23/98), 718 So.2d 1068, 1072-1073, writ denied, 98-2698 (La.12/18/98), 734 So.2d 636. If an accusation is based on probable cause there is no liability even if there was malicious motive. Kenner v. Milner, 187 So. 309, 311 (La.App. 1 Cir.1939).

In this case, the lower courts erred in concluding that Gegg met his burden of proving malicious prosecution. There is no evidence that the School Board was motivated by malice in filing the suit against Gegg. Likewise, there is no absence of probable cause. The School Board clearly had a right to institute an action against Gegg for breach of contract and/or negligence based on his failure to obtain builders’ risk insurance as required by the contract. Although the court ultimately concluded that the School Board’s acceptance of the insurance certificate precludes it from challenging the sufficiency of Gegg’s coverage, at the time the suit was filed, the School Board honestly and reasonably believed that its claim against Gegg was meritorious.

Moreover, the lower courts erred in concluding that Gegg suffered an injury as a result of his reliance upon the School Board’s insurance consultant’s actions. It is undisputed that the School Board’s insurance consultant accepted Gegg’s bid, certifying that the insurance certificates submitted by Gegg met the requirements under the contract. However, the consultant’s actions in no way absolved Gegg of his obligations under the contract. Gegg knew that builders’ risk insurance was required, as the general conditions of the contract clearly mandated the coverage, and he knew that he had not met the pre-contractual obligations. Gegg chose not to obtain the builders’ risk coverage, and, therefore, cannot blame the School Board’s consultant for “misrepresenting” that he had adequate insurance coverage.

As I stated previously, there is no jurisprudence that would support a finding of liability. In my mind, to allow such a ruling to stand sets a precedent that does injury to our legal system. Accordingly, I would grant this writ application and reverse the court of appeal’s decision.

      . Gegg's insurer and the three arsonists were also named as defendants.

      . See JCM Construction Co. v. Orleans Parish School Board, 95-0567 (La.App. 4 Cir. 10/12/95), 663 So.2d 429, writ denied, 95-2748 (La.2/2/96), 666 So.2d 1089.


author: 11 EZELL, Judge. PER CURIAM.

text:
    Rodney J. POCHE and Dixie Ann Poche v. Randall J. RACCA and Westport Insurance Company.
    No. CA 03-1361.
    Court of Appeal of Louisiana, Third Circuit.
    March 3, 2004.
    As Amended on Grant of Defendant’s Motion for Rehearing May 12, 2004.
    Plaintiffs Motion for Rehearing Denied May 12, 2004.

      Larry Lane Roy, Preis, Kraft & Roy, Lafayette, LA, for Defendants/Appellants, Randall J. Racca, Westport Insurance Company.
    Robert Louis Broussard, Durio, McGof-fin, Stagg, Lafayette, LA, for Plaintiffs/Ap-pellees, Rodney J. Poche, Dixie Ann Poche.
    Court composed of BILLIE COLOMBARO WOODARD, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
   11 EZELL, Judge.

This case is a legal malpractice case. Randall Racca appeals the decision of the trial court finding that he was guilty of malpractice in failing to discover an encumbrance on a section of land during a title exam he performed for Rodney Poche. He also asserts that the award of damages was excessive. For the following reasons, we reverse the decision of the trial court.

This suit arises out of Racca’s legal services to Poche related to his planned purchase of land from Harvey and Wilda Webre for development into residential property. Included in the land to be purchased from the Webres was a “dog-leg,” a sixty foot strip of land running roughly east to west off of the bottom of what would otherwise be a rectangular piece of land. Racca was to examine the title of the property to be purchased for Poche. However, in the process of performing the title search, Racca failed to discover a conventional servitude of passage belonging to Clifford Hebert, the owner of adjoining property, running over the dog-leg portion of the property. In a title opinion dated March 25, 1998, Racca told Poche that the title was clear. Racca admits the fact that his examination of the public records failed to reveal the servitude. On June 25, 1998, Poche purchased the Webre property, relying on the title opinion rendered by Racca. At this time, he intended to place a road along the dog-leg, using it as an entrance to the subdivision from an 1-10 service road.

On August 24, 1999, fourteen months after purchasing the Webre land, Poche purchased another piece of land from Warren Degatur. This was a small triangular piece of land with one side abutting the dog-leg portion of the Webre property and another side abutting the 1-10 service road. After purchasing this land, Poche decided that he could combine the dog-leg portion of the old Webre land with the new land he purchased from Degatur to form a large enough lot to become a viable commercial property. To further this plan, he changed his mind about the location of the road entering the subdivision. Instead of running the road east to west along the dog-leg, he would run the entrance north to south along the new Dega-tur property to meet the same I — 10 service road.

After purchasing the Degatur property, Poche discovered a pipe running along the dog-leg. He immediately told Racca about what he perceived as a trespass on his property. Racca contacted Hebert, who told him of the servitude. Poche himself went to the Clerk of Court for St. Martin Parish and discovered the servitude in the public records.

Poche claims that Racca’s work failed to meet the standard of care required of an attorney performing a title examination. The trial court agreed with Poche, finding that Racca was negligent in failing to meet the appropriate standard of care, and that this negligence was the cause of $209,000 in damages to Poche for his loss of profit from the sale or lease of the potential commercial property. The trial court also awarded Poche $75,000 in general damages for mental suffering. From this decision, Racca appeals.

As his main assignment of error, Racca asserts that the trial court erred in disregarding evidence that the dog-leg portion of the Webre property was statutorily dedicated to the public prior to Poche’s acquisition of that property, thereby preventing Poche from acquiring ownership of this property and preventing him from suffering damages from Racca’s failure to discover the prior servitude of passage. We agree.

Whether property has been dedicated for public use is a question of fact. Winningham v. Hill, 164 So.2d 384 (La.App. 2 Cir.1964). A court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). Based on the law as outlined herein, and for the reasons that follow, we find that the trial court was clearly wrong in finding that the property in question had not been dedicated to the public use.

The public may acquire an inter-' est in the land on which a road is built or in the use of a road through purchase, exchange, donation, expropriation, prescription, or dedication. 2 a.n. yianNopoulos, LOUISIANA CIVIL LAW TREATISE PROPERTY § 96 at 211(4th ed.2001). Statutory dedication occurs when a landowner subdivides real estate in accordance with the requirements of La.R.S. 33:5051. Louisiana Revised Statutes 33:5051 provides for the subdivision of real estate into squares or lots with named streets and for the dedication to public use of all streets, alleys, and public squares on the map. A statutory dedication vests ownership in the public unless the subdivider reserves ownership of streets and public places and grants the public only a servitude of use. Arkansas- Louisiana Gas Co. v. Parker Oil Co. Inc., 190 La. 957, 183 So. 229 (1938) (on rehearing). “In order to effect a statutory dedication, complete and detailed compliance with the statute is not required; substantial compliance will suffice.” Garrett v. Pioneer Prod. Corp., 390 So.2d 851, 856 (La.1980).

On April 1, 1998, after Racca rendered his title opinion but before Poche purchased the Webre land, Poche, acting as an agent for the Webres, commissioned Timothy Collins to prepare a subdivision plat for the potential subdivision. The plat includes the extension of Ramsey Drive, a road running up to the subdivision. The Ramsey Drive extension shown on the plat ran the length of the subdivision to the dog-leg, then turned ninety degrees to run along the dog-leg to the service road. Clearly marked on the Ramsey extension is “RAMSEY DRIVE 60’ UNIMPROVED DEDICATED R/W.” Also on the plat is the following certification (emphasis ours):

I(WE) HEREBY CERTIFY THAT I AM (WE ARE) THE OWNER(S) OF THE PROPERTY SHOWN AND DESCRIBED HEREON AND THAT I(WE) HEREBY ADOPT THIS PLAN OF SUBDIVISION WITH MY (OUR) FREE CONSENT, ESTABLISH THE MINIMUM BUILDING RESTRICTION LINES, AND DEDICATE ALL STREETS, ALLEYS, WALKS, PARKS, AND OTHER OPEN SPACES TO PUBLIC OR PRIVATE USE AS NOTED.

This subdivision plat was approved by the St. Martin Parish Planning Commission on April 15, 1998, and was filed into the conveyance records for that parish on May 25, 1998, and were attached to restrictive covenants for that subdivision.

At trial, two experts testified that the plat met the requirements of statutory dedication. William Mouton, Poche’s own expert testified that “[t]he language of the plat of survey attached to the restrictive covenant does contain, because of the language on the plat, an intent to dedicate that portion of Ramsey Drive as a public street.” Phillip Boudreaux,, an expert for Racca testified that this was “a classic example of a statutory dedication” and that the language on the plat dedicated any streets shown on the map that were not previously dedicated. This expert testimony was uncontradicted.

It is clear to this court that, based on the marking of the Ramsey Drive extension as a dedicated right-of-way, the language in the plat certification dedicating “ALL STREETS ... TO PUBLIC OR PRIVATE USE AS NOTED,” and the testimony of both experts at trial, Poche, acting on behalf of the Webres, dedicated the dog-leg portion of the Webre property to the public prior to his purchase of that land. The trial court committed manifest error in finding otherwise. Full ownership of the dog-leg was vested in the public prior to Poche’s acquisition of the property. While Racca’s actions clearly failed to meet the standard of care for an attorney providing a title examination and would arise to the level of malpractice, his actions ultimately did not cause any damages to Poche. Because full ownership was vested in the public at the time of the filing of the plat, Poche was prohibited from using the dog-leg in any manner that would prevent the public from making use of the dog-leg. He could no longer use the dog-leg strip for commercial purposes, and accordingly, he could not then suffer any loss of profits from the use of the land.

Because we find that Poche suffered no damages from Racca’s actions due to the dog-leg being dedicated to the public prior to Poche’s acquisition of that property, we need not address Racca’s other assignments of error or Poche’s answer seeking additional damages. The judgment of the trial court awarding Poche $209,000 in lost profits and $75,000 in general damages is hereby reversed. Costs of this appeal are assessed against Rodney Poche.

REVERSED AND RENDERED.

REHEARING GRANTED

PER CURIAM.

In our Opinion rendered on March 3, 2004, we completely reversed the trial court’s judgment, thus making Randall Racca the prevailing party. We now amend our previous ruling to cast Rodney Poche with all costs of appeal, as well as with all costs incurred in district court.

EZELL, J., would deny.


author: JOHN D. SAUNDERS, Judge. AMY, J.,

text:
    Sheralon MOORE v. PITT GRILL.
    No. 03-0910.
    Court of Appeal of Louisiana, Third Circuit.
    March 24, 2004.
    Rehearing Denied May 26, 2004.

      Robert T. Jacques, Jr., Lake Charles, LA, for Plaintiff/Appellant, Sheralon Moore.
    Dennis Stevens, Gibbens & Stevens, New Iberia, LA, for Defendanf/Appellee, Pitt Grill.
    Court composed of ULYSSES G. THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, MARC T. AMY, and BILLY H. EZELL, ARTHUR J. PLANCHARD, Judges.

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

   JOHN D. SAUNDERS, Judge.

The appellant, Sheralon Moore, appeals the ruling of the workers’ compensation judge (“WCJ”), finding that she failed to sustain the requisite burden of proving causation between a work related accident and her disability. We reverse and render.

FACTS

Sheralon Moore was employed as a General Manager at Pitt Grill in Lake Charles, Louisiana. On the night/early morning of May 1-2, 2000, an armed robbery occurred at the Pitt Grill. Ms. Moore was sprayed in the face with mace as the robber was leaving the store.

On the morning of May 2, 2000, Ms. Moore was treated at the Lake Charles Memorial Hospital emergency room for the effects of the mace spray to her face. She was given an injection to calm her, her eyes were washed, and a treatment was applied to her lips and face to alleviate the burning effects of the chemical spray. Ms. Moore returned to work the following day.

Two to three days following the robbery, Ms. Moore began to experience neck pain. On May 22, 2000, Ms. Moore was seen by Dr. Homer Williams at Bayou Comprehensive. Dr. Williams recommended physical therapy, which Ms. Moore continued for the duration of her remaining employment at Pitt Grill. On November 3, 2000, Ms. Moore sought treatment from Dr. Clark Gunderson, an orthopaedic physician, yet she continued to work for Pitt Grill without interruption. She indicates that her neck pain continued to worsen, and on February 2, 2001, following her shift, she went to the emergency room complaining of neck pain. She has not returned to work since February 2, 2001. Ms. Moore claims that she continues to have pain in her neck, shoulder, and down her right arm. Dr. Gunderson, recommends an anterior cervical fusion at C5-6. Ms. Moore’s employer refuses to authorize this procedure.

This matter was heard by Constance C. Handy, Workers’ Compensation Judge (“WCJ”), on November 5, 2001. Judge Handy took the matter under advisement at the conclusion of the hearing on November 5, 2001, and allowed the parties to file briefs on the issues of penalties and attorney’s fees by November 13, 2001. On January 11, 2002, Judge Handy rendered a Posh-Trial Order. This order stated: “After reviewing the record, considering the law and evidence, the court feels it would be beneficial to have Ms. Moore seen by an orthopedist of the judge’s choice and a licenced psychologist or a licenced psychiatrist of the judge’s choice pursuant to LSA-R.S. 23:1124.1.” Dr. Lynn Foret, the court-ordered orthopedist, recommended a cervical decompression at C5-6, and Dr. Paula Simien, the court-ordered psychiatrist, recommended various psychotherapy and psychiatric treatments for Ms. Moore.

Due to Judge Handy’s death, the decision in this matter was rendered by Sheral Kellar, Workers’ Compensation Judge. On April 7, 2003, following a review of the trial record, Judge Kellar issued oral reasons for judgment on the matter. Judge Kellar ruled that Sheralon Moore failed to sustain the requisite burden of proving causation between the accident and her disability.

Ms. Moore presents the following assignments of error:

1) The workers’ compensation judge was clearly wrong in failing to consider Plaintiffs Exhibit Number 1, the Lake Charles Police Incident Report, and Plaintiffs Exhibit Number 2, in globo notice and demand letters.
2) The workers’ compensation judge committed manifest error in failing to consider the reports of Dr. Lynn For-et, Orthopaedic Physician and Dr. Paula Mouton Simien, Psychologist as both were appointed by the presiding trial judge after the conclusion of trial while the case was under advisement.
3) The workers’ compensation judge’s finding that the claimant failed to sustain the requisite burden of proving causation between the accident and the disability is manifestly erroneous.
4) The workers’ compensation judge was clearly wrong and manifestly erroneous in failing to address psychological/psychiatric factors, including treatment.
5) The workers’ compensation judge was clearly wrong in failing to award penalties and attorney fees.

DISCUSSION

The appellate court’s standard of review in workers’ compensation matters is well established and clearly set out in Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, pp. 7-8 (La.7/1/97), 696 So.2d 551, 556:

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

As discussed in prior decisions by this court, as well as the first and fifth circuits, there is no specific provision within the Office of Workers’ Compensation (“OWC”) Hearing Rules addressing the proper procedure for rendering decisions after the death, resignation, or removal from office of the original hearing officer. However, such circumstances are addressed with respect to district and city court judges in La.R.S. 13:4209, which states in pertinent part:

A. In all cases heard and taken under advisement of the district judge or judges of the city courts, if the judge before whom a case is tried dies, resigns, or is removed from office, or if his term expires before rendering his judgment in the case, his successor in office shall decide the case from the evidence in the record, if all of the testimony is in writing. If it is a case in which the testimony has not been reduced to writing, the succeeding judge shall decide the case from a statement of the facts, if one is found in the record, or if the parties to the suit agree upon a statement of facts. If the testimony is not in the record, and there is no statement of facts, the case shall be tried de novo.

The applicability of La.R.S. 13:4209 to OWC proceedings has been discussed extensively by the First and Fifth Circuits. See Bass v. National Maintenance Corp., 95-0367 (La.App. 1 Cir. 12/15/95), 665 So.2d 782; Ridlen v. St. Charles Manor Nursing Center, Inc., 94-275 (La.App. 5 Cir. 10/12/94), 644 So.2d 244, writ denied, 94-3039 (La.2/3/95), 649 So.2d 410. In Bass, the First Circuit provided a very cogent analysis of the applicability of La. R.S. 13:4209. The court stated:

LSA-R.S. 13:4209(B) authorizes a successor judge to sign a judgment which conforms with the judgment rendered when the judge who tried the case and rendered a decision dies, resigns or is removed from office, or if his term expires before a judgment is signed in the case. The applicability of this statute is specifically limited to successor judges of the district courts and city courts of this state and by its terms is inapplicable to OWC hearing officers who are not members of the judiciary. LSA-R.S. 13:4209(A); see LSA-R.S. 23:1021(12) and 1310.1.
Since January 1, 1990, the administrative hearing officers are vested with original, exclusive jurisdiction over claims or disputes arising out of the workers’ compensation law. LSA-R.S. 23:1310.3(E); see LSA-Const. art. V, § 16(A). The hearing officer’s role in the administration of those claims or disputes is defined in the Workers’ Compensation Act. The hearing officer is not bound by the technical rules of evidence or procedure other than as provided for in the workers’ compensation law. LSA-R.S. 23:1317(A). In addition to those procedures set forth by statute, the director of the OWC has authority to adopt and promulgate reasonable rules and regulations, including the rules of procedure before the hearing officers, according to the procedures established by the Administrative Procedure Act. LSA-R.S. 23:1291(B)(13) and 1310.1(C). All rules and regulations, properly approved and promulgated under the Administrative Procedure Act, shall be consistent with the workers’ compensation law and shall be binding in the administration of that law. LSA-R.S. 23:1310.1(0.
Chapter 10 of Title 23 of the Louisiana Revised Statutes does not contain a provision similar to LSA-R.S. 13:4209, nor does it directly make the provisions of LSA-R.S. 13:4209 applicable to the hearing officer system in the OWC. In the absence of any such provision, a successor hearing officer is without authority to render a decision and/or sign an order, decision, or award if he or she was not the one who heard the matter. See LSA-R.S. 23:1310.5(A). However, pursuant to the authorization provided in LSA-R.S. 23:1291(B)(13) and 1310.1(C), the director of the OWC has promulgated hearing officer rules which govern the practice and procedure in workers’ compensation proceedings. See LAC 40:1.2101-2173 (“Hearing Officer Rules”). Pertinent to the determination of the validity of the judgment signed by the successor hearing officer is Hearing Officer Rule 2105 which provides:
Any matter of practice or procedure not delineated herein and not in conflict with either the Workers’ Compensation Act or these rules will be guided by practice and procedure followed in the district courts of this state as well as the practice and procedures provided for in the Louisiana Code of Civil Procedure.
The annotation following this rule indicates that it was promulgated in accordance with LSA-R.S. 23:1310.1.
Since the authority of a successor hearing officer has not been delineated by the workers’ compensation law or Hearing Officer Rules, this issue will be governed by the practice and procedure applicable to the district courts of this state which is found in LSA-R.S. 13:4209. Furthermore, this court notes that Hearing Officer Rule 2159 implicitly assumes the applicability of the principles of LSA-R.S. 13:4209 to the workers’ compensation proceeding in that it specifically provides for the submission of a case when a successor hearing officer is involved.

Bass, 665 So.2d at 784-85.

The applicability of La.R.S. 13:4209 in workers’ compensation matters, as stated in Bass above, has also been adopted by this court. Andrus v. Crowley Laundry & Dry Cleaners, 03-571 (La.App. 3 Cir. 11/5/03), 858 So.2d 802.

Assignment of Error # 1

Ms. Moore contends that the WCJ was clearly wrong is failing to consider Plaintiffs Exhibit Number 1, the Lake Charles Police Incident Report, and Plaintiffs Exhibit Number 2, the in globo notice and demand letters. Ms. Moore argues that Plaintiffs Exhibits 1 and 2 were clearly included in her Pre-trial Statement.

In her oral reasons for judgment, Judge Kellar stated:

In determining whether the work accident caused Ms. Moore’s disability, the court considered Moore’s testimony, the medical reports of Dr. Clark Gunderson, the physical therapy reports, and the narrative report of Dr. Kip Patterson. The three reports offered for submission by the employer and its insurer, which were the medical report of Dr. Gregory Gidman, the report of the Eye Clinic, and the report of Dr. Rennie Culver were not considered. Additionally, the court did not consider the Lake Charles Police Incident Report or the notice of demand letter from Moore’s counsel to the employer. The documents that the court failed to consider were objected to because the offering party failed to list them on its pretrial order.

After a review of the record, we find that Plaintiffs Exhibits Numbers 1 and 2 are clearly included in her Pre-Trial Statement. Therefore, the WCJ’s stated grounds for failing to consider them in reaching her decision were manifestly erroneous. Ms. Moore’s Pre-trial Statement was stamped received by the Office of Workers’ Compensation on September 20, 2001, therefore, those documents should have been admitted as evidence by the court and considered before rendering judgment.

When the court of appeal finds that a reversible error of law or manifest error of material fact was made it is obligated to conduct a de novo review of the entire record and render a judgment on the merits wherever possible. See Rosell v. ESCO, 549 So.2d 840 (La.1989).

Based on our finding that these documents should have been considered by the WCJ in rendering her decision, we will conduct a de novo review of the record, including Plaintiffs Exhibits Numbers 1 and 2 and render a decision on this matter following our review of the following assignments of error.

Assignment of Error # 2

Ms. Moore argues that the WCJ erred in failing to consider the medical reports of Dr. Lynn Foret and Dr. Paula Simien, appointed by Judge Handy at the conclusion of the trial and after receiving the parties’ post-trial briefs. Ms. Moore recognizes that the opinions of court-appointed expert witnesses are not conclusive and the workers’ compensation judge is entitled to rely upon their opinions or discount them completely. However, she contends that, after Judge Handy’s order requesting Ms. Moore’s evaluation by independent, court-ordered experts, it was error for the WCJ to fail to consider their opinions at all when reaching her decision.

Pitt Grill contends that the WCJ was not required to reach these issues as the claimant failed to sustain her burden of proving a work-related accident. It further notes that the court considered the medical testimony from Dr. Gregory Gid-man and Dr. Culver.

In Brasseaux v. Abbeville General Hospital, 97-1062, p. 5 (La.App. 3 Cir. 3/18/98), 710 So.2d 340, 343, rev’d in part on other grounds, 98-1066 (La.6/5/98), 720 So.2d 673, this court held that:

Pursuant to La.R.S. 23:1123, if a dispute arises as to the employee’s condition, the workers’ compensation judge is allowed to order an independent medical examination by an impartial doctor. That statute further provides that the report of the doctor shall be “prima facie evidence of the facts therein stated in any subsequent proceedings under this Chapter.” La.R.S. 23:1123. However, even prima facie evidence may be overcome by other credible evidence. Although the legislature has accorded significant weight to the testimony of a court appointed physician, that testimony is not conclusive. The workers’ compensation judge must still evaluate the witnesses and reach an ultimate decision in the matter.

We find the WCJ was manifestly erroneous in failing to consider the independent medical examinations that were ordered by Judge Handy and that were an important factor in determining the existence of Ms. Moore’s claimed injuries. The opinions of each party’s expert witnesses were directly contradictory, and Judge Handy’s appointment of further IME evaluation of Ms. Moore’s condition was warranted based on the facts in the record.

Because we find the WCJ’s failure to consider the independent medical evaluations ordered by Judge Handy manifestly erroneous, we conduct a de novo review of the doctor’s evaluations. Following his evaluation of Ms. Moore, Dr. Lynn Foret found that Ms. Moore has degenerative changes noted on the plane films taken for the evaluation. Dr. Foret diagnosed Ms. Moore with neck pathology at the C5-6 level, which could be improved by surgery. In his opinion, surgical intervention would help her “better her condition and get back to full duty status.” He recommended a cervical decompression procedure to improve Ms. Moore’s condition.

Dr. Paula Simien conducted the court-appointed psychological evaluation of Ms. Moore as per Judge Handy’s order. Following an examination of Ms. Moore and a review of the records and evaluations of Drs. Gunderson and Culver, as well as many of Ms. Moore’s medical records, Dr. Simien found Ms. Moore’s quality of life and psychological functioning had significantly reduced since her assault. Dr. Sim-ien stated that, although Mrs. Moore has experienced a traumatic event, the data does not support a psychiatric diagnosis of posttraumatic stress disorder. She diagnosed Ms. Moore with generalized anxiety disorder, dysthymic disorder, and pain disorder associated with both psychological factors and her general medical condition. Dr. Simien recommended psychotherapy for anxiety and depression stemming from the traumatic event, pain management techniques, psychiatric consultation for medication administration, and medical and therapeutic intervention to address pain behavior.

Assignment of Error # S

Ms. Moore argues that, under Louisiana law, a claimant’s disability is presumed to have resulted from the work-related accident if the claimant was in good health before the accident, but following the accident the symptoms of the disabling conditions appear and continuously thereafter manifest themselves. She recognizes, however, that this presumption is conditional upon either the existence of sufficient medical evidence showing that there is a reasonable possibility of causal connection between the accident and the disabling condition, or that the nature of the accident, when combined with other facts of the case, raises a natural inference through human experience that such a causal connection exists. See Walton v. Normandy Village Homes Assoc., Inc., 475 So.2d 320 (La.1985); Cook v. Dewey Rusk Flooring, 93-1643 (La.App. 3 Cir. 8/10/94), 642 So.2d 234, writ denied, 94-2804 (La.1/13/95), 648 So.2d 1343.

Pitt Grill contends that, in order for there to be a presumption that an employee’s injury resulted from the work-related accident, the employee must show that the symptoms of the disabling condition commenced immediately with the accident, and manifest themselves continuously after-wards. They argue that Ms. Moore did not experience symptoms of a disabling neck injury commencing with the accident, that her neck pain was not reported until two or three days following the accident.

In Freeman v. Best Western Richmond Suites Hotel, 97-1462, p. 11 (La.App. 3 Cir. 4/22/98), 711 So.2d 438, 443, writ denied, 98-1393 (La.7/2/98), 724 So.2d 737, this court addressed the presumption that applies in work-related accidents and injuries as follows:

It is also important to note that an employee’s work-related accident is presumed to have caused his disability when it is proven that the disabling symptoms were not manifested before the accident, the disabling symptoms appeared after the accident, and there is either medical or circumstantial evidence providing a reasonable possibility of causal connection between the accident and disabling injury. Walton [v. Normandy Village Homes Ass’n], 475 So.2d 320 [La.1985]. Although, the claimant has the burden of proving that the accident somehow caused or contributed to the disability, the exact cause need not be found. Walker v. Halliburton Servs., Inc., 93-722 (La.App. 3 Cir. 3/1/95); 654 So.2d 365. Additionally, the question of the existence of a disability presents a legal and not purely medical question, which must be determined through a consideration of both lay and medical testimony. Id., citing Taylor v. Louisiana-Pacific Corp., 602 So.2d 48 (La.App. 3 Cir.), writs denied, 606 So.2d 541, 542 (La.1992).

As to Pitt Grill’s contention that Ms. Moore must show that her neck pain manifested at the time of the accident in order to establish the presumption, we note there are a number of cases throughout Louisiana where the presumption was applied, even though symptoms did not manifest until after the actual accident. See Konneker v. Sewerage and Water Board of New Orleans, 96-2197 (La.App. 4 Cir. 11/19/97), 703 So.2d 1341, writ denied, 97-3137 (La.2/13/98), 709 So.2d 760 (presumption applied where back and neck injury did not manifest until two days after the accident in question); Frix v. Supreme Catering Service & Aetna Ins. Co., 444 So.2d 710 (La.App. 5 Cir.1984) (presumption applied where plaintiff reported hip pain immediately but did not report pain in her foot until more than a month following the work-related accident). In the case of neck and back injuries, which often take a day or more to manifest with symptoms of pain, we find that Ms. Moore’s statements that she did not begin to experience neck pain until the following day are not sufficient evidence to defeat the presumption that Ms. Moore’s neck injury resulted from her workplace accident.

Following a full review of the record, we find that Ms. Moore has presented sufficient evidence to establish the presumption that the work-related accident was the probable cause of her injuries. Ms. Moore sought medical treatment for neck pain only three days after the armed robbery at Pitt Grill. This period of time is sufficiently close to the work-related accident to indicate a connection between the two, barring evidence presented by the opposing party rebutting such a connection. Dr. Gunderson’s records indicate that Ms. Moore had no previous injury to the neck or head, and that the day following the robbery Ms. Moore suffered from neck pain and bad headaches. The defense presented no evidence that Ms. Moore complained of neck pain prior to the robbery. For the reasons stated above, we find that Ms. Moore successfully established causation between the work-related accident and her injuries.

Assignment of Error # U

Ms. Moor also contends that the WCJ erred in failing to address the psychological factors present in this ease. She argues that medical evidence presented by Dr. Kip Patterson indicates that, following the armed robbery at Pitt Grill, she has suffered from symptoms of acute stress disorder, which have since exacerbated to the point of posttraumatic stress disorder (“PTSD”), and also suffers from pain disorder. Dr. Patterson recommended psychotherapy to assist her in coping with the emotional trauma sustained as a result of the robbery, antidepressant therapy, and neurofeedback therapy to help her recover from PTSD. She argues that these findings by two clinical psychologists serve to carry the requisite burden of proof for a claim for medical benefits. Therefore, she contends the workers’ compensation judge was clearly wrong in failing to address her entitlement to psychological and/or psychiatric treatment.

In her oral reasons for judgment, Judge Kellar indicated that the parties stipulated to the allowance of a one-time examination by Dr. Kip Patterson, a psychologist. Dr. Patterson submitted a narrative report stating:

This patient obviously had symptoms of Acute Stress Disorder (308.3) immediately after the assault on 5-1-00. Since that time her symptoms have converted into Posttraumatic Stress Disorder, chronic (309.81), which is a fairly typical course for such a traumatic set of circumstances. The patient also gives every appearance of being well adjusted prior to the assault and the assault is the cause of the PTSD she is suffering.
She also has a Pain Disorder (307.89) which is also a direct result of 5-1-00. She exhibits depressive symptoms significant enough to warrant a diagnosis of Depressive Disorder, NOS (311). This disorder is a common co-morbid problem with both pain disorders and PTSD. The neurochemistry associated with chronic pain and with PTSD degrades the neurotransmitter distribution and this is the cause of the depressive symptoms.

The Louisiana Supreme Court addressed the issue of compensation for mental injuries resulting from work-related accidents in Sparks v. Tulane Medical Center Hosp. and Clinic, 546 So.2d 138, 143-44 (La.1989), where it stated:

In so-called “physical-mental” injury cases, where a mental injury or illness develops secondary to an ascertainable physical injury, Louisiana courts have uniformly found that the employee is entitled to compensation benefits for any disability resulting from the mental injury and to reimbursement for medical expenses incurred in the treatment of that condition. See, e.g., Westley v. Land & Offshore, 523 So.2d 812 (La.1988) (employee suffered post traumatic stress syndrome secondary to physical injury caused by fall); Droddy v. Cliff’s Drilling, Inc., 471 So.2d 223 (La.1985) (employee suffered depressive neurosis as “emotional overlay” to physical injury caused by fall). See also Jordan v. Southern Natural Gas. Co., supra, 455 So.2d at 1222 (“[W]hen a plaintiff develops a disabling anxiety syndrome, traumatic neurosis, or other mental disorder as a result of a work-related physical injury, he can recover compensation benefits even if he has recovered physically from the injury.”) Allowance of coverage in these “physical-mental” injury eases seems clearly appropriate under the Act’s definition of “injury,” which covers not only the initial injury suffered by the employee but also “such disease or infections as naturally result therefrom.”

Following the supreme court opinion in Sparks, the Louisiana Legislature enacted La.R.S. 23:1021(7), which states in pertinent part:

(b) Mental injury caused by mental stress. Mental injury or illness resulting from work-related stress 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 the mental injury was the result of a sudden, unexpected, and extraordinary stress related to the employment and is demonstrated by clear and convincing evidence.
(c) Mental injury caused by physical injury. A mental injury or illness caused by a physical injury to the employee’s body 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.
(d) No mental injury or illness shall be compensable under either Subpara-graph (b) or (c) unless the mental injury or illness is diagnosed by a licensed psychiatrist or psychologist and the diagnosis of the condition meets the criteria as established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders presented by the American Psychiatric Association.

In Arwood v. J P & Sons, Inc. & L.W.C.C., 98-1102, pp. 10-11 (La.App. 5 Cir. 3/10/99), 730 So.2d 525, 530, writ denied, 99-1391 (La.7/2/99), 747 So.2d 22, the Fifth Circuit presented the burden on the plaintiff in cases of mental injury as follows:

Thus, in order to prevail, claimant must prove by clear and convincing evidence that the physical injury caused the mental injury. Further, the mental injury must be diagnosed by a licensed psychiatrist or psychologist, and the diagnosis must meet the most current criteria established by the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. Charles v. South Central Industries, 96-0883 (La.11/25/96), 683 So.2d 706, 709. As further explained by the Charles court:
Although compensation laws are to be construed liberally in the claimant’s favor, the worker’s burden of proof is not relaxed. Harold v. La Belle Maison Apartments, 94-0889, p. 10 (La.10/17/94), 643 So.2d 752, 757; Bailey v. Smelser Oil & Gas, Inc., 620 So.2d 277, 279-280 (La.1993); Bruno v. Harbert Intern. Inc., 593 So.2d 357 (La.1992). Disability can be proved by medical and lay testimony; the hearing officer’s factual determination whether the worker has discharged his burden of proof should not be disturbed on review absent manifest error. Bailey, 620 So.2d at 280; Bruno, 593 So.2d at 361. “[Reviewing courts must analyze claimed disability caused by mental conditions with utmost caution in view of the nebulous characteristics of mental conditions and the possibility of symptoms being easily feigned.” Westley, 523 So.2d [812,] at 813 [(La.1988)]; see also Williams v. Regional Transit Authority, 546 So.2d 150, 158 (La.1989).
Charles, 683 So.2d at 709.

The WCJ included Dr. Patterson’s report in the list of items reviewed in reaching her decision. We find Dr. Patterson’s report convincing, and we are unable to find evidence anywhere in the record contesting his diagnosis. Therefore, we find the WCJ erred in failing to address Ms. Moore’s psychological injuries and the psychologist’s recommended treatment in her decision.

Assignment of Error # 5

In her final assignment of error, Ms. Moore claims the workers’ compensation judge was clearly wrong in failing to award penalties and attorney fees. Under La.R.S. 23:1201(F), an employer’s failure to pay compensation results in the assessment of a penalty as- well as reasonable attorney fees for the disputed claims. She contends that she is entitled to $2000.00 for the failure to instate benefits, $2000.00 for the failure to authorize medical treatment by Dr. Gunderson, $2000.00 for failure to authorize surgery, $2000.00 for failure to authorize psychiatric medical management treatment for depression, $2000.00 for failure to pay for an Open Air MRI, and $2000.00 for failure to pay Bayou Comprehensive Health Center. She also seeks attorney fees in the amount of $20,000.00.

In Spell v. Conn Appliances, Inc., 97-309, pp. 11-12 (La.App. 3 Cir. 10/8/97), 702 So.2d 797, 802, this court stated:

It is well settled that an employer or insurer should not be penalized for seeking judicial resolution of close factual issues. Trudell v. State, Office of Risk Management, 465 So.2d 184 (La.App. 3 Cir.1985). In the instant case, the physicians offered three opinions about the extent of Spell’s disability and even disputed what was shown on the various diagnostic films. When we consider the divergence of opinion and that the defendants relied upon the court-appointed expert’s conclusions, we find that the hearing officer clearly erred in imposing penalties and attorney fees. See Watkins [v. Asphalt Assoc., Inc., 96-249 (La.App. 3 Cir. 12/14/96)], 685 So.2d 393.

In this matter Pitt Grill relied on opinions from their expert witnesses, and, while we find that Ms. Moore has met her burden of proving that her injury could have resulted from the workplace accident, the WCJ found she had not. The issue before us has enough merit that we are unable to say the defendants were unreasonable in seeking judicial review. Therefore, we are unwilling to award penalties or attorney fees in this matter.

DECREE

For the reasons stated above, we reverse the trial court’s ruling and find that Ms. Moore met the requisite burden of proving causation between the work-related accident the night/morning of May 1-2, 2000, and her disability. We find Ms. Moore is entitled to workers’ compensation benefits from the date she stopped working, subject to any credits, and payment for medical treatment as provided by law, including neck surgery as recommended by Dr. Gunderson. We also find Ms. Moore is entitled to payment for psychiatric treatment as recommended by Dr. Sim-ien, |-i fiincluding psychotherapy for anxiety and depression stemming from the traumatic event, pain management techniques, psychiatric consultation for medication administration, and medical and therapeutic intervention to address pain behavior. All costs of this appeal are assessed to the defendant.

REVERSED AND RENDERED.

THIBODEAUX, C.J., concurs in the result.

AMY, J., concurs in part and dissents in part and assigns written reasons.

AMY, J.,

concurring in part, dissenting in part.

I concur in the majority’s opinion in part, as I agree that a reversal is required with regard to the claimant’s entitlement to indemnity and medical benefits. However, I reach that result by different reasoning. I agree that the record requires a reversal insofar as the indemnity and medical benefits are concerned. However, I find a reversal appropriate after having considered the matter de novo as the workers’ compensation judge rendering the ruling differed from the workers’ compensation judge who originally heard the matter. See Roy v. Belt, 03-1022 (La.App. 3 Cir. 2/18/04), 868 So.2d 209.

I respectfully disagree with that portion of the majority opinion addressing treatment for mental injuries. My review of the record indicates that the claimant failed to demonstrate by clear and convincing evidence her entitlement to this type of injury as is required by La.R.S. 23:1021(7)(c). While the claimant presented a psychologist’s report indicating a diagnosis of post-traumatic stress disorder, the employer presented similarly persuasive expert evidence refuting that diagnosis. Moreover, although not necessarily determinative in this case, I also note that the claimant’s presentation of evidence on this issue indicates a lack of particularity in the diagnosis as is anticipated by La. R.S. 23:1021(7)(d). Accordingly, I respectfully dissent from the award of benefits related to mental injuries.

      . Chief Judge Thibodeaux argues that, while appellate courts typically review workers' compensation matters under a manifest error/clearly wrong standard, where the judge rendering the decision is not the same judge who tried the matter the appropriate standard of review on appeal is de novo. See Walker v. Union Oil Mill, Inc., 369 So.2d 1043, 1045 n. 2 (La.1979). We are not convinced that this is the appropriate standard here, but note that our ruling remains the same whether the standard applied is manifest error or de novo review.