author: 2CLAIBORNE, J.

text:
    Rudy Dean CHANDLER d/b/a St. Helena Grocery v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2002 CA 1410.
    Court of Appeal of Louisiana, First Circuit.
    March 28, 2003.
    Rehearing Denied May 30, 2003.

      Gary C. Ethridge, Baton Rouge, for Defendant-Appellant State of Louisiana, Dept, of Transportation and Development.
    Mary E. Heck Barrios, Denham Springs, for Plaintiff-Appellee Rudy Dean Chandler d/b/a St. Helena Grocery.
    Before: PARRO, MCDONALD, and CLAIBORNE, JJ.

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

   2CLAIBORNE, J.

The State of Louisiana, Department of Transportation and Development (DOTD), appeals the trial court’s granting of a preliminary injunction enjoining it from removing a portion of a concrete driveway of a commercial establishment located on the DOTD right-of-way. We find the preliminary injunction was improperly issued, and the decision of the trial court is reversed.

FACTS

Ray Miers owned the property located at 40240 Louisiana Highway 16 (Hwy.16) in St. Helena Parish, Louisiana. The property consists of a lot 280 feet wide and 300 feet deep. The property contains a commercial establishment known as St. Helena Grocery. During the time Miers owned the property, the driveway and parking lot for the store were composed of aggregate, and the width of the driveway ran further than the frontage of the entire store, which allowed access to Hwy. 16 from nearly the entire width of the property adjoining the highway.

Sometime during 1996 or 1997, Hwy. 16 was widened and resurfaced. Sand Ridge Construction performed the widening and resurfacing project in the area in front of St. Helena Grocery. Gary Thomas, owner of Sand Ridge Construction, testified that during the project, he laid two 90-foot sections of pipe in front of St. Helena Grocery. According to Thomas, the store had two driveways, each about 80 feet wide. (The discrepancy in the dimensions was explained by pointing out that each pipe extended a little farther on each end beyond the width of the driveway.) Thomas indicated that after the pipe was laid, it was covered with aggregate to allow ingress Land egress into the parking lot. Between these two 80-foot driveways was a small opening of about 4-5 feet, which was filled in prior to DOTD’s accepting the project. Thomas testified this section was filled in on a weekend and not by his company, but he did point this out to DOTD prior to acceptance of the completed work. According to Thomas, he made DOTD aware of the width of the driveway in front of St. Helena Grocery.

Ray Miers, who had sold St. Helena Grocery to Rudy Dean Chandler in 1997, testified that when the Hwy. 16 project was completed, his driveway was essentially as wide as it was before Hwy. 16 was widened and resurfaced. Following completion of the highway project, the width of the driveway allowed for access between Hwy. 16 and the parking lot for nearly the entire width of the property adjacent to the highway. At no time was Miers ever informed by DOTD that the driveway did not comply with DOTD regulations, which only allow for driveways with a width of 35 feet for commercial establishments.

About two months after Chandler bought the property from Miers, he paved the driveway and parking lot with concrete. Some of the concrete placed by Chandler covered a part of the driveway between his property and the hard-surfaced highway, so that it was on the highway right-of-way. Chandler testified that before he paved the driveway, it had a solid front for the entire width of the property, and that this had been its configuration since he was “a little boy.” At the time Chandler had the parking lot paved, he was not aware of any requirements from DOTD that he needed a permit to do work on his driveway or that there existed any specifications for such construction. Chandler did not know he needed a permit for his new driveway until several months after the concrete was poured, when someone pfrom DOTD asked Chandler if he had a permit for his driveway. He was subsequently told by an employee of DOTD to apply for a permit.

After Chandler submitted a permit application dated September 30, 1997, for his already existing driveway, he discovered that it would cost approximately $25,000 to $26,000 to bring his driveway into compliance with DOTD regulations. Chandler then investigated other commercial establishments along Hwy. 16 and discovered several businesses whose driveways exceeded the 35-foob-width requirement. Chandler presented evidence of other businesses in the vicinity whose driveways exceeded the 35-foot rule. In one case he measured two culverts of 108 feet, each separated by a 30-foot span. One business had a driveway 200 feet wide, and another had 70-foot-wide driveways. He measured the driveway in front of another business and found it also was 200 feet wide. Another business had a 95-foot-wide driveway and a 75-foob-wide driveway. Another had a 55-foot-wide driveway, as did a church. Another had a 70-foob-wide driveway. No remedial construction in progress was noticed on any of them. (This evidence was allowed by the trial judge on the issue of selective enforcement discussed below.)

Chandler never brought his driveway into compliance with DOTD regulations. On December 4, 1998, Chandler received a letter from DOTD requesting he contact DOTD to discuss corrective measures for his driveway. Several conversations took place between Chandler and DOTD representatives, but no agreement was reached on a remedy. In a letter dated February 11, 1999, Chandler was informed that his driveway was in violation of DOTD standards and on February 22, 1999, DOTD would be removing the portions of the driveway exceeding the allowable width.

|sOn February 21, 1999, Chandler filed a petition seeking to enjoin DOTD from destroying or damaging the parking lot of St. Helena Grocery. Chandler claimed DOTD’s planned action of breaking up his parking lot would cause immediate and irreparable injury, consisting of physical damage to his property and loss of revenue and income from his business, St. Helena Grocery. A temporary restraining order was granted prohibiting DOTD from entering Chandler’s property.

Following a hearing, the trial court granted a preliminary injunction against DOTD. In oral reasons for judgment the trial court stated that it was the burden of the state to inform property owners and contractors of applicable driveway regulations prior to DOTD performing any construction work on the roadway.

DOTD appeals the judgment of the trial court. In its assignments of error, DOTD contends that the state does not have the burden of informing property owners and contractors of applicable driveway regulations prior to performing any construction work on the roadway. DOTD also argues that the trial court erred in granting Chandler’s request for a preliminary injunction enjoining DOTD from entering Chandler’s property to perform any work thereon.

APPELLATE JURISDICTION

Chandler argues in his brief that the issuance of a preliminary injunction is an interlocutory judgment that causes no irreparable injury to the state, and thus may not be appealed. Although Chandler did not answer the appeal, we note appellate courts have a duty to examine subject matter jurisdiction sua sponte when the parties do not raise the issue. McGehee v. City/Parish of East Baton Rouge, 2000-1058, p. 3 (La.App. 1st Cir.9/12/01), 809 So.2d 258, 260. Thus Chandler was not required to raise the | fiquestion of appellate jurisdiction by answer to the appeal Or by any other formality, and the question is properly before the court.

Louisiana Code of Civil Procedure article 3612 provides that “[a]n appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction.” A party aggrieved by a judgment either granting or denying a preliminary injunction is entitled to an appeal. Country Club of Louisiana Property Owners Association, Inc. v. Dornier, 96-0898, p. 2 n.1 (La.App. 1st Cir.2/14/97), 691 So.2d 142, 144 n. 1. Accordingly, an appeal may be taken by DOTD from the trial court’s judgment granting Chandler’s petition for a preliminary injunction.

LAW APPLICABLE TO PRELIMINARY INJUNCTIONS

A preliminary injunction may be issued during the pendency of an action for a permanent injunction on a prima facie showing that the petitioner is entitled to the relief sought, that he will prevail on the merits, and that the potential losses are those for which money damages are inadequate or are incapable of measurement by pecuniary standards. See La. Code Civ. P. art. 3601; City of Donaldsonville v. Louisiana Gambling Control Board, 99-1582, p. 3 (La.App. 1st Cir.6/23/00), 764 So.2d 339, 342, writ denied, 2000-2257 (La.10/27/00), 772 So.2d 654. The jurisprudence interpreting Article 3601 establishes that, while the trial court has broad discretion in deciding whether to grant injunctive relief, injunction is an extraordinary remedy and should only issue where the party seeking it is threatened with irreparable loss without adequate remedy at law. City of Donaldsonville, 99-1582 at p. 3, 764 So.2d at 342. A showing of irreparable injury is not necessary when the deprivation of a constitutional right is involved. Brennan v. Board of Trustees for University of Louisiana Systems, 95-2396, p. 6 (La.App. 1st Cir.3/27/97), 691 So.2d_324, 328. Moreover, there is no need to prove irreparable harm when the petitioner alleges the defendant is acting in direct violation of prohibitory law. Paradigm Insurance Company v. Louisiana Patient’s Compensation Fund Oversight Board, 95-1727, p. 4 (La.App. 1st Cir.9/27/96), 680 So.2d 783, 785. A party must make a prima facie showing that he will prevail on the merits of the suit. City of Donaldsonville, 99-1582 at p. 3, 764 So.2d at 342. Before issuing a preliminary injunction, the trial court should consider whether the threatened harm to-the plaintiff outweighs the potential for harm or inconvenience to the defendant and whether the issuance of the preliminary injunction will disserve the public interest. Freeman v. Treen, 442 So.2d 757, 763 (La.App. 1st Cir.1983).

AUTHORITY OF DOTD

DOTD raises as issues whether it has the authority to regulate entrances to and exits from private property adjacent to the rights-of-way for state highways, and whether it has the authority to order removal of a private driveway constructed on the right-of-way of a state highway in violation of DOTD’s rules and regulations and/or of the driveway construction permit.

La. R.S. 48:344 provides as follows:

Entrances to and exits from private properties adjacent to the rights-of-way of state highways may be regulated, prohibited, or abolished in the interest of the safety of the traveling public. The chief engineer of the Department of Transportation and Development, from time to time, shall prepare and promulgate descriptions and illustrations of various types and styles of entrances and exits consistent with this purpose and shall issue permits of necessity and convenience for the installation of entrances and exits in accordance with its promulgated regulations and standards. The department may apply to the courts for such process as may be necessary to make the provisions of this Section effective.

The plain words of the statute make it apply to the setting of standards and issuance of permits, as well as to the regulation, prohibition and | sabolishment of entrances and exits. It is not self-executing with respect to its enforcement. That is, DOTD is relegated to the courts “to make the provisions of this Section effective.” This statute must be read together with La. R.S. 48:347, which provides in part as follows:

A. The department may apply to the court for any process necessary to prevent the installation of any structure, sign, obstacle, object, deposit, or thing within the limits of a highway contrary to this Chapter or any lawful regulation issued hereunder.
C. Whenever any of the things described in Subsection A of this Section are found to exist within the limits of a highway, the department may summarily remove and dispose of it at the expense of the person responsible therefor. If it retains apparent value, the owner shall be notified, orally or in writing, to remove it within five days or such other period as may be agreed upon. If the owner be unknown or cannot be found, a written notice shall be affixed to the object setting forth that it must be removed within a period not less than five days from the date specified. Failure to remove within the specified period operates as a forfeiture of all rights thereto and the department may remove the object for its own use, or dispose of it at private or public sale, or destroy it, or dispose of it in any manner. The owner and any other person responsible therefor remains hable for any damage to public property or expenditure of highways funds resulting from the installation or removal of such things.

This statute gives DOTD specific authority to remove “any structure, sign, obstacle, object, deposit, or thing” which is in violation of Chapter 1 of Title 48 of the Revised Statutes or any lawful regulation issued thereunder. The authority is sufficiently broad to include a concrete driveway or parking lot on the highway right-of-way.

Entrances to, and exits from, private properties adjacent to rights-of-way of state highways may be regulated, prohibited or abolished in the interest of the safety of the traveling public. La. R.S. 48:344. The state clearly has control over what is placed on the state right-of-way. According to La. R.S. 48:347C, DOTD has the authority to remove any structure, sign, 1 ¡¡obstacle, object, deposit, or thing from the highway right-of-way at the expense of the owner.

The main thrust of Chandler’s argument is that the concrete he placed on the state right-of-way should be allowed to remain on the right-of-way, because the width of the driveway has always exceeded the DOTD regulations. He argues the fact that the composition of the driveway was changed from aggregate to concrete should not make any difference. Gary Thomas, a road construction contractor, testified that as a sub-contractor working on the DOTD project, he installed two 90-foot sections of pipe or culverts (for two 80-foob-wide driveways) at the subject location under supervision from the highway department. The space between the driveways was filled in by someone else (presumably the land owner) so that it made a single solid drive. Thomas brought this to the attention of the highway department before the work was actually accepted.

Chandler testified that bringing his driveway into compliance with DOTD regulations would cost an estimated $25,000 to $26,000. Chandler also alleged that he would have an interruption of his business income, but no evidence was presented as to whether Chandler’s business would be closed or what length of time such closure would take place.

According to the testimony of Robert Roth, the DOTD district administrator for the Hammond district, the St. Helena Grocery functions as a truck stop and generates a fair amount of heavy truck traffic. Truck traffic entering the highway at that location without being properly controlled could pose a sight obstruction problem and hazard for motorists on the highway or for motorists attempting to access the driveway. Roth also indicated when an area on the right-of-way was paved, the area could be used as a parking | inlot, but such structures were never authorized to be placed on the state property. Photographs were introduced showing a tractor-trailer parked on the driveway extending over the highway right-of-way.

SELECTIVE ENFORCEMENT OF REGULATIONS

Although Chandler demonstrated that numerous violations of the regulations existed in the vicinity of his property, apparently with no effort on the part of DOTD to enforce its own rules except as to his property, there was no showing that any discrimination was intentional, arbitrary and purposeful. Roth testified that the construction contractor and DOTD do not have the capability to correct encroachments by driveways composed of aggregate. Hard-surface driveway encroachments would be corrected during highway construction, in that the driveways would not be re-connected to the highway in their original condition. According to Roth, correction of an aggregate driveway encroachment by DOTD would require removal of the aggregate and the planting of grass. Roth said that such measures are beyond the scope of the highway construction projects and that DOTD does not have the resources to correct such encroachments. There is nothing in the record to show that the selective application of the rules was intentionally directed at Chandler for improper reasons. In the absence of such a showing, it is not a defense to a violation of a rule or regulation that other persons similarly situated are equally guilty.

. By statute, the state has the authority to regulate what structures are placed on its right-of-way. Based on our review of the record, we find Chandler did not present any evidence that indicated DOTD’s actions would cause him irreparable loss or were prohibited by law. To the contrary, DOTD is authorized by statute to remove certain items that have been placed on the highway right-of-way in contravention of its regulations. The portion Inof Chandler’s driveway exceeding the 35-foot-width limitation is considered such a violation. Under the facts presented, plaintiff was not entitled to the issuance of a preliminary injunction.

CONCLUSION

Rudy Dean Chandler failed to satisfy the burden of proof necessary to support the issuance of a preliminary injunction. Therefore, the judgment of the trial court granting the preliminary injunction is reversed. All costs associated with this appeal are assessed to Rudy Dean Chandler.

REVERSED AND REMANDED.

      . Sand Ridge Construction was a subcontractor for Diamond B Construction, which was awarded the contract by DOTD to widen and resurface the section of Hwy. 16 that ran adjacent to the St. Helena Grocery location.

      . See also Skye Realty Company v. State of Louisiana through Department of Highways, 345 So.2d 249 (La.App. 3d Cir.1977).


source: Caselaw Access Project

author: 2McCLENDON, J.

license: Public Domain

text:
    Nicolas H. ISSA v. LL & G CONSTRUCTION, INC.
    No. 2002 CA 1215.
    Court of Appeal of Louisiana, First Circuit.
    March 28, 2003.
    Rehearing Denied May 30, 2003.

      James L. Maughan, Baton Rouge, for Plaintiff/Appellant, Nicolas H. Issa.
    Charles J. Duhe, Jr., B. Scott Cowart, Baton Rouge, for Defendant/Appellee, LL & G Construction, Inc.
    Before: FOIL, McCLENDON, and KLINE, JJ.

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

   2McCLENDON, J.

This appeal arises from a workers’ compensation proceeding in which the plain-tifl/appellant was granted some relief, though less than he sought. On appeal, we reverse and vacate the judgment.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Nicolas Issa, was involved in two accidents, while in the course and scope of his employment with LL & G Construction, Inc. (“LL & G”). The first accident occurred on September 13, 2000 and the second on October 24, 2000. Following the September accident, wherein Mr. Issa injured his back, he returned to work at light duty. Subsequently, in October, he was struck on the head by a “clod of dirt.” Thereafter, Mr. Issa complained of worsened low back pain, neck pain, facial injuries, and an inability to breathe through his nose.

On December 19, 2000, when LL & G refused to authorize treatment for plaintiff by an ear, nose, and throat specialist, Mr. Issa filed a complaint with the Office of Workers’ Compensation (“OWC”), seeking benefits for the October 24, 2000 accident and alleged injuries therefrom to his back, neck, and face. Thereafter, on April 30, 2001, Mr. Issa amended his petition to seek benefits for the September 13, 2000 accident, stating, “The claimant is unable to separate which injuries were caused by each accident and will rely upon health care providers for this information.” Following a December 6, 2001 trial, judgment was rendered by the OWC judge, as follows:

1. The Claimant] has proved by a preponderance of the evidence that an accident occurred in the course and scope of employment on September 11, 2000.
2. The Claimant has proved by a preponderance of the evidence that an accident occurred in the course and scope of employment on October 24, 2000.
|a3. Claimant has proved an inability to earn ninety percent of his pre-acci-dent wages from October 24, 2000 to January 20[,] 2001. Supplemental earnings benefits are owed at the temporary total disability rate for this period of time.
4. Average weekly wage is determined to be [$]464.91 with a corresponding temporary total disability compensation rate of [$]310.10.
5. Medical expenses related to the lumbar and cervical complaints are to be paid by the defendant. Defendant is entitled to credit for any expenses already paid.
6. Medical expenses for the facial and oral problems are not related to the accident.
7. Claimant is found not to be disabled after January 20, 2001. No indemnity benefits are owed after January 20, 2001.
8. The claimant is found NOT to have violated La. R.S. 23:1208. The misrepresentations were not made for the purpose of obtaining benefits.
9. The claim for attorney fees and penalties is denied.

Mr. Issa appealed this judgment and on appeal urges the following assignments of error:

1. The [OWC judge] erred in failing to find that the Appellant was entitled to Supplemental Earnings Benefits after January 20, 2001.
2. The [OWC judge] erred in failing to find that the Appellant’s nasal injuries were compensable.
3. The [OWC judge] erred in failing to award penalties and attorney’s fees for the Appellee’s arbitrary and capricious failure to pay benefits in accordance with the law.

LL & G filed an answer to the appeal, seeking reversal of the OWC judge’s determinations. LL & G alleged the OWC erred in holding that plaintiff was entitled to supplemental earnings benefits, erred as to the amount of plaintiffs average weekly wage, and, erred in holding that plaintiff did not violate LSA-R.S. 23:1208.

CLAW AND ANALYSIS

An employee who receives personal injury by accident arising out of and in the course of his employment shall be paid compensation, if not otherwise eliminated from by the workers’ compensation provisions, by his employer in the amounts, on the conditions, and as designated by LSA-R.S. 23:1021 et seq. See LSA-R.S. 23:1031. “Accident” means an “unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” LSA-R.S. 23:1021(1).

The employee who claims a right to collect workers’ compensation benefits has the burden of proving a work-related accident by a preponderance of the evidence. Bolton v. B E & K Construction, 2001-0486, p. 8 (La.App. 1 Cir. 6/21/02), 822 So.2d 29, 35; Catchot v. RAMCO Construction, 2000-1922, pp. 2-3 (La.App. 1 Cir. 11/14/01), 818 So.2d 105, 107, citing Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992). Further, a claimant must establish a causal link between the work-related accident and his injury. Rhodes v. Terrebonne Parish Sheriff, 2001-2279, p. 3 (La.App. 1 Cir. 6/21/02), 822 So.2d 114, 116.

In the instant case, there was no dispute that plaintiff suffered two accidents in the course and scope of his employment with the defendant. The issue contested was the extent of plaintiffs disability and the causal connection between the accidents and the alleged injuries.

The OWC judge found that Mr. Issa had established that he suffered a compensable injury and was unable to earn ninety percent of his pre-accident wages from October 24, 2000 until January 20, 2001, awarding | ¡¡supplemental earnings benefits at the temporary total disability rate. The oral reasons given by the OWC judge for this ruling were as follows:

Mr. Issa testified that he was injured in two separate accidents, one on September 11, 2000, and one October 24, 2000. Based on the testimony of Nicolas Issa, Pierre Issa, Tufic Issa, Henry Hage and Edward Levert there doesn’t seem to be any real dispute to the fact that an accident occurred on September 11, 2000 in which Mr. Issa was pushing a rod and sustained an injury to his back. There also doesn’t seem to be any dispute that an accident occurred on October 24th of 2000 where some dirt was inadvertently dropped on Mr. Issa’s head resulting in increased back pain. The big question centers around Mr. Issa’s ability to work.
Based on the medical records that I have and the testimony that was given at trial I don’t think that there’s any doubt that Mr. Issa was injured. He saw Dr. Davis, he saw Dr. Sweeney, he saw Dr. Nicholson, and he saw Dr. Horace Mitchell. At various times he was taken off work and put back on work by Dr. Davis and Dr. Sweeney. Dr. Nicholson had him completely disabled at some time and then released him to light duty. He eventually saw Dr. Horace Mitchell and Dr. Mitchell has released him to light duty.
The medical records are fairly clear as to the fact that Mr. Issa had sustained an injury to his back and that this injury resulted in his inability to return to the same type of work that he was doing which basically was heavy manual labor. The medical records also show that there’s no doubt that Mr. Issa is capable of doing some type of work; light duty has been advised by two of the doctors, Dr. Nicholson and Dr. Horace Mitchell. There’s no doubt in my mind that Mr. Issa is capable of returning to work in some capacity. The latest medical report from Dr. Mitchell state[d] that Mr. Issa was capable of returning to light duty. Dr. Nicholson also returned him to light duty in January of 2001, and Mr. Issa has not returned to work as of this time.
Based on the testimony that was taken and the medical records that were provided to me, Nicolas Issa has proven by [a] preponderance of the evidence that he was involved in two accidents while in the course and scope of his employment with LL & G Construction. These accidents resulted in a disability and that disability lasted until January 20th of 2001. At that time based on the medical records that have been provided to me and also based on the video tape that was shown, I find that Nicolas Issa was capable of engaging in gainful employment after January 20, 2001.
There was a lot of testimony about Mr. Issa’s problem with the language barrier, but it’s obvious from his medical records, the video tape that was shown and the testimony that was given that he is capable of doing some work. Based on the wage records that were provided to me after January 20, 2001, I don’t think that Mr. Issa has proved an inability to earn 90% of |fihis pre-accident wages. Before January 20th I think there was proof of that, but after that I don’t think that there is. So therefore, I’m finding that Mr. Issa was disabled until January 20, 2001, and he’s owed supplemental earnings benefits up until that time at the temporary total disability rate.
The other question was what was the average weekly wage. I think based on the medical evidence and Mr. Issa’s own testimony he could return to work after the September 11, 2000 accident and he in fact did return to work. He worked for a period of time and then after the October 24th accident he was disabled. Therefore, I think the correct way to calculate the average weekly wage is based on the four full weeks prior to the October 24, 2000 accident. I calculated those wages and came up with an average weekly wage of $464.91, and a corresponding temporary total disability rate of $310.10. So therefore, I’m finding that he’s entitled to disability payments at the rate of $310.10.
The lumbar and cervical complaints, the medical expenses for those complaints are to be paid by the defendant. The defendant is entitled to a credit for any of those expenses which they have already paid. The medical expenses for the facial and oral problems I don’t find are related to the accident. I don’t think there’s enough proof provided that the causes of these problems are in any way related to either the September 11, 2000 accident or the October 24, 2000 accident. So, therefore, I’m denying the claim for any medical expenses for the facial or oral problems.
There was also an allegation of fraud in that claimant has violated Louisiana Revised Statute 23:1208. While I do think there are certain questions regarding the credibility of Mr. Issa in this case, based on the video testimony that was shown to me, I don’t think that it rises to the level of a 1208 violation; therefore I’m finding that there has been no violation of Louisiana Revised Statute 23:1208 and the claim for fraud is denied.
There was also a claim for attorney fees and penalties and I would say that that is somewhat wrapped up in the 1208 allegation; because while I don’t find that a 1208 violation occurred, I do think there are some questions about Mr. Issa’s credibility as regards his ability to work and not to work and what types of activities he has been engaged in.
I think that taken together with the medical evidence that has been provided where the doctors have returned him to work, he did return to work, they took him off work, put him back on work, gave him light duty, regular duty, that the situation is very confusing, but I don’t think that there has been any arbitrary and capricious conduct in this case. I also think that the defendant has adequately made a good faith argument against benefits being owed and I think that they handled the file in a competent manner, therefore, I’m denying any claim for attorney fees and penalties.

|7CLAIM OF LSA-R.S. 23:1208 VIOLATION

In defense of Mr. Issa’s claim for workers’ compensation benefits, his employer urges that Mr. Issa has violated LSA-R.S. 23:1208, which provides, in pertinent part, as follows:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
D. In addition to the criminal penalties provided for in Subsection C of this Section, any person violating the provisions of this Section may be assessed civil penalties by the workers’ compensation judge of not less than five hundred dollars nor more than five thousand dollars, and may be ordered to make restitution. Restitution may only be ordered for benefits claimed or payments obtained through fraud and only up to the time the employer became aware of the fraudulent conduct.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter. [Emphasis added.]

Section 1208 is clear and unambiguous and as such will be applied as written. Resweber v. Haroil Construction Company, 94-2708, p. 7 (La.9/5/95), 660 So.2d 7, 12, citing LSA-C.C. art. 9, LSA-R.S. 1:4. Section 1208 clearly applies to any willful false statements or representations made “for the purpose of obtaining or defeating any benefit or payment.” Section 1208 has no language limiting it to only certain types of false statements, i.e., statements other than those relating to prior injuries. The legislature has imposed no notice requirement in Section 1208, apparently being of the opinion that any claimant should be on notice that false statements made willfully for the purpose of obtaining workers’ compensation benefits will not be tolerated and will result in the forfeiture of those benefits. The only requirements for forfeiture of benefits under Section 1208 are that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is [ smade for the purpose of obtaining or defeating any benefit or payment. Resweber v. Haroil Construction Company, 94-2708 at p. 7, 660 So.2d at 12.

In Resweber, the court noted that in enacting and amending LSA-R.S. 23:1208, the legislature made a policy decision that willful and deliberately false statements made specifically for the purpose of obtaining workers’ compensation benefits are an attempt to defraud the workers’ compensation system and should be dealt with harshly. Jim Walter Homes, Inc. v. Prine, 2001-0116, p. 8 (La.App. 1 Cir. 2/15/02), 808 So.2d 818, 824. The court further recognized the legislature’s continued effort over the years to make LSA-R.S. 23:1208 easier to enforce and to make its penalties stronger. It is clear from the specific language of the statute and the history of the statute that the legislature intended that any false statements or representations willfully made for the purpose of obtaining benefits would result in forfeiture of those benefits. Therefore, once it has been determined that a false statement or representation has been made, the workers’ compensation judge must make a factual determination as to whether, based on the record, the statement or representation was willfully made “specifically to obtain benefits, and thus to defraud the workers’ compensation system.” Jim Walter Homes, Inc. v. Prine, 2001-0116 at p. 8, 808 So.2d at 824, citing Sumrall v. Luhr Brothers, 95-0779, p. 5 (La.App. 1 Cir. 12/15/95), 665 So.2d 796, 799, writ denied, 96-0187 (La.3/15/96), 669 So.2d 425.

In the instant case, numerous allegations of false statements on the part of the claimant were alleged. Only two were borne out by the record before the OWC.

The first involves Mr. Issa’s ability to work. During discovery and at trial, Mr. Issa was asked whether he had performed any work since his ^alleged injuries at LL & G; he stated that he had not. However, LL & G produced at trial a private investigator who had video-taped Mr. Issa arriving at his brothers’ Texaco station on September 12, 2001, at approximately 9:51 a.m. and remaining there until at least 2:37 p.m., when surveillance was discontinued. The investigator reported that he went inside the store and observed through binoculars from outside the store that Mr. Issa was using the cash register and waiting on customers. Further, the video tape showed Mr. Issa going outside the business to check the level of gas in the underground storage tanks, using a long pole. The investigator testified and the video tape showed that Mr. Issa did not appear to be in any apparent pain or distress in performing these activities. This testimony and demonstrative evidence was in direct conflict with the testimony of Mr. Issa and his brothers that Mr. Issa never worked at the station and only visited there, but never for more than forty-five minutes at a time.

The second misrepresentation evident from the record was the claim by Mr. Issa that certain facial injuries were caused by the October 24, 2000 accident and were therefore compensable. On December 7, 2000, Mr. Issa was examined by Dr. John P. Sweeney, an orthopedist who had been consulted previously concerning Mr. Issa’s back complaints. On that date, Mr. Issa related the October 24, 2000 accident and pointed out areas, which Dr. Sweeney described as: “[a] fresh contusion with a small lump there that was movable... [,] a bruise beneath his right eye ...[,] that his neck was swollen ...[,] his nose was swollen and painful ... [, and] to an area on the right side of his gum, over the right lateral incisor that he says was injured at the time of the accident.” Dr. Sweeney was adamant that the injuries complained of were not four to five weeks old, but rather were fresh and could not have been the result of the October 24th accident.

|inDr. Sweeney’s conclusion is supported by the absence of recordation of any such complaint or finding by earlier medical providers.

The October 24, 2000 report from Lakewood Medical Center in Morgan City stated that Mr. Issa’s chief complaint was back pain; no notes were made under the ENT, neck, or respiratory sections of the report. Further, the report made no notation of any injury to Mr. Issa’s face.

Dr. Robert W. Davis saw Mr. Issa on October 25, 2000 and testified that on that date he recorded in his notes the following observations:

[T]he head and neck region had no sign of external trauma. I used the word “atraumatic.” I also clarified that by saying that there was no abrasions, bruising, erythema, or swelling.

Dr. Davis specifically stated that he examined Mr. Issa’s head and face and that he would have recorded any abnormality, had he observed any.

Mr. Issa was next examined on November 8 and 29, 2000 by Dr. Robert J. Nicholson, claimant’s orthopedic physician of choice. Although Mr. Issa sought treatment from Dr. Nicholson for his back complaints, Mr. Issa reported that in the October 24th accident he had also injured his nose. Dr. Nicholson testified that he examined Mr. Issa’s facial area and found no gross deformity. When Dr. Nicholson was questioned about Dr. Sweeney’s subsequent physical findings on December 7, 2000, Dr. Nicholson specifically denied having seen any of those injuries on his examination of Mr. Issa’s face and stated that he would have noted any bruises, lacerations, or swellings, had any been present.

Despite the absence of any medical documentation of facial injuries between October 24, 2000 and November 29, 2000 and the categorical denial by the medical providers consulted during this time frame that any facial injuries were evident on their examination(s) of Mr. Issa, Mr. Issa | nmaintained at trial that the facial injuries complained of resulted from the October 24th accident and all appeared within days of the accident.

The reasons for judgment of the OWC judge reveal that he did not find the facial injuries at issue to have been related to the October 24th accident. In so finding, though not directly stated, the OWC judge had to have rejected the credibility of Mr. Issa on this point. Further, the OWC judge stated that the credibility of Mr. Issa was brought into question by the video tape presented by LL & G. Yet, the OWC judge stated, “I don’t think that it rises to the level of a 1208 violation.” In so concluding, we find legal error.

In both instances of misrepresentation, the three-prong Resweber criteria were met: (1) a false statement or representation was made (Mr. Issa stated he could not and had not worked since his injuries, when on at least one occasion he worked in excess of five hours at his brothers’ Texaco shop, and Mr. Issa stated that he suffered serious facial injuries that Dr. Sweeney described as looking as if he had been beaten up, yet these injuries were not present during examinations by the three medical providers who saw Mr. Issa before Dr. Sweeney’s December 7th examination); (2) it is -willfully made (Mr. Issa’s statements on these points were continuously maintained and voluntary); and, (3) it is made for the purpose of obtaining or defeating any benefit or payment (Mr. Issa’s statements could have been made for no other reason than to obtain benefits for the injuries and he in fact sought such benefits before the OWC).

Even though Mr. Issa may have had an otherwise valid claim for workers’ compensation benefits for his lower back, LSA-R.S. 23:1208(E) requires forfeiture of this right when misrepresentations have been made. Therefore, we conclude the OWC judge erred in failing to find that these | ^misrepresentations constituted a violation of LSA-R.S. 23:1208, requiring forfeiture of workers’ compensation benefits.

Having disposed of the appeal on this basis, we pretermit the remaining assignments of error.

CONCLUSION

For the reasons assigned herein, the judgment of the Office of Workers’ Compensation is reversed and vacated, and the claims of Nicolas H. Issa are hereby dismissed. All costs of this proceeding are to be borne by Mr. Issa.

REVERSED AND VACATED.


author: 2KLINE, J.

text:
    Jack L. BOUDREAUX, Jr. v. IDEAL RENTALS, INC. and CNA.
    No. 2002 CA 1321.
    Court of Appeal of Louisiana, First Circuit.
    March 28, 2003.
    Rehearing Denied May 30, 2003.

      Allen A. McElroy, Jr., Berwick, Counsel for Appellant Jack L. Boudreaux, Jr.
    William A. Repaske, New Iberia, Counsel for Appellees Ideal Rentals, Inc. and CNA.
    Before: FOIL, McCLENDON, and KLINE, JJ.

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

   2KLINE, J.

This is an appeal from a judgment of the Office of Worker’s Compensation in favor of employer, Ideal Rentals, Inc., and its insurer, CNA, dismissing claims of the claimant, Jack L. Boudreaux, Jr. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Jack Boudreaux was employed by Ideal Rentals, Inc. (“Ideal”), on August 31, 1988, when he was injured during the course and scope of his employment. At that time, Continental Casualty American Casualty Company of Reading, PA (a CNA Insurance Company) provided Ideal with workers’ compensation insurance. Weekly compensation benefits were paid to Mr. Boudreaux until he returned to work. The weekly compensation benefits were terminated, but the obligation to pay Mr. Bou-dreaux’s medical expenses remained.

Mr. Boudreaux injured his back during the subject work-related accident. As a result, he had undergone three back surgeries. His treating physician is Dr. Hector Ruiz. In July of 1999, Dr. Ruiz prescribed Celebrex for Mr. Boudreaux, because he continued to experience back pain. One of the side effects of Celebrex is internal bleeding. On July 28, 1999, Mr. Boudreaux noticed that his stool had black specks in it, which he determined to be an indication of possible internal bleeding. Mr. Boudreaux was a licensed practical nurse and knew from reading about the drug that internal bleeding was a possible side effect. The next morning, he had another bowel movement and noted that the stool was now nothing but a black watery substance. As a result he contacted Dr. Ruiz’s office, and was told to come into the office. When Mr. Bou-dreaux arrived at Dr. Ruiz’s office, Dr. Ruiz drafted admission orders for Mr. Boudreaux to be hospitalized at Lakewood Hospital in Morgan City. Mr. Bou-dreaux went directly to Lakewood Hospital from the doctor’s office.

While at Lakewood, Dr. Thomas Birriel, a general surgeon, was consulted. Dr. Birriel performed three surgeries during Mr. Boudreaux’s hospitalization at Lakewood. The surgeries consisted of two endoscopic attempts to stop the bleeding and then a laparotomy. Mr. Boudreaux was at Lakewood from July 29, |a1999 to August 1, 1999. None of the three surgeries were successful at stopping the internal bleeding. As a result, Mr. Boudreaux was transported to the Ochsner Foundation Hospital in New Orleans so that an ang-iography could be performed. One was not available at Lakewood. While at Ochs-ner, Mr. Boudreaux’s internal bleeding subsided and no additional procedures were performed. He was discharged from Ochsner on August 5,1999.

Mr. Boudreaux submitted the medical expenses resulting from his internal bleeding to the workers’ compensation insurer. A written demand for payment of the medical bills was received by the insurance company on January 30, 2001. The insurance company refused payment.

On July 26, 2001, Mr. Boudreaux filed a disputed claim for compensation, alleging the insurer’s failure to pay medical bills and that attorney’s fees and penalties were owed. Appellees filed an answer on August 15, 2001, asserting, among other things, that Mr. Boudreaux was limited to an aggregate total of $1,000.00 for unapproved medical treatment. Appellees also asserted an affirmative defense stating that Mr. Boudreaux failed to notify them of his ongoing medical care and failed to have medical treatment timely approved.

A trial was held on the merits on December 14, 2001. After the trial, the workers’ compensation judge made the following factual findings:

1. Prior to filing of the current Disputed Claim for Compensation, neither the claimant nor his health care providers sought or obtained pre-approval from defendant for any medical treatment since August 81,1996.
2. The claimant testified American Casualty Company paid him $1,869.00, by check dated August 18, 1998, for reimbursement of medical expenses incurred in October and November 1996.
3. On the morning of August 29, 1999, the claimant visited Dr. Hector Mario Ruiz, general practitioner, complaining of rectal bleeding. In his deposition, Dr. Ruiz testified he decided to place the claimant in the hospital for observation and treatment. Dr. Ruiz further testified, the claimant did not appear clammy or flushed when he presented that morning, which would have indicated a true emergency situation and he did not show decreased hemoglobin or hemato-crit until the following day, indicating significant blood....
4. The Lakewood Hospital discharge summary reflects that the claimant was admitted and observed. The following day his hemoglobin and hematocrit dropped, confirming Dr. Ruiz’[s] testimony regarding the nature of the admission. Dr. Ruiz’[s] testimony does not contradict the hospital record that this was a non-emergency admission. Dr. Ruiz never testified that the | claimant’s admission was of an emergency nature. He testified that it would be if the he-matocrit and hemoglobin counts were low, but they were not at the time. Dr. Ruiz also testified the claimant had time to go home and get whatever personal things he would need in the hospital.
5. The claimant testified he was given an order for immediate intake into the hospital, but such an order appears contrary to the testimony of Dr. Ruiz and the hospital records admitted into evidence. Dr. Ruiz’[s] office had time to pre-certify the admission.
6. The claimant underwent the initial scope procedure at Lakewood Hospital about twenty-four hours after Dr. Ruiz first saw him. Ultimately, the claimant was transferred to Ochsner’s to undergo angiography, which was not available at Lakewood Hospital.
7. Neither the claimant nor his health care providers sought or obtained pre-approval from the defendants for any medical treatment, despite the claimant’s health care providers having obtained pre-approval from the claimant’s health care insurer.
8. Sixteen months after the fact, and almost four and one-half years after the last known treatment for a work-related injury, the claimant first notified the defendants of his claim for reimbursement of health care costs for the August/September 1999 treatment by letter from attorney Allen McElroy, Jr. This letter demanded payment of medical expenses, a demand supported solely with medical bills. No indication of a medical emergency was provided. The letter and attachments did not provide any indication of the alleged emergency nature of the treatment.
9. The [defendants’] first notice of immediate hospitalization of the claimant following the exam by Dr. Ruiz was received the day of trial when the claimant contradicted Dr. Ruiz’[s] testimony and stated that he went directly to the emergency room from Dr. Ruiz’[s] office.

A judgment was rendered by the WCJ, stating the following:

After considering the law, the record, the evidence, the exhibits and the argument of counsel in this matter, this Court renders Judgment in favor of defendant, Ideal Rentals, Inc., and against claimant, Jack L. Boudreaux, Jr. Therefore:
IT IS ORDERED, ADJUDGED AND DECREED that ... LSA-R.S. 28:1142 as it read August 31, 1988 is the law applicable to this claim.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the claimant, Jack L. Boudreaux, Jr., and the health care provider, Dr. Hector Ruiz, failed to carry their burden of proving the claimant’s treatment was of an emergency nature.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the claimant, Jack L. Boudreaux, Jr., and the health care provider, Dr. Ruiz, failed to seek pre-approval for non-emergency medical care.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendant reasonably controvert[ed] the workers’ compensation claim of Jack L. Boudreaux, and therefore, the claimant is not entitled to penalties and attorney fees.
|kIT IS FURTHER ORDERED, ADJUDGED AND DECREED that the workers’ compensation claim of Jack L. Boudreaux, Jr., is hereby dismissed with prejudice.

On January 16, 2002, Mr. Boudreaux filed a motion for a new trial. The WCJ denied this motion. From this judgment, Mr. Boudreaux appeals, asserting the following assignments of error:

1.[WCJ] made error in its failure to accept uncontradicted testimony of only medical expert witness that medical emergency required immediate treatment in the hospital.
2. [WCJ] erred in its failure to correctly apply the law and at least find that the initial doctor visit charge on morning of July 29,1999, was an emergency medical treatment.
3. [WCJ] made error in its failure to correctly apply the law and to find that a medical emergency existed which required treatment in the hospital at Lakewood Medical Center.
4. [WCJ] erred in its failure to correctly apply the law and to find that the transfer at 10:40 p.m. on a Sunday night and subsequent treatment at Ochsner Foundation Hospital was a medical emergency.
5. [WCJ] erred by failing to award penalty damages, attorney fees, expert witness fees and costs.

LAW AND DISCUSSION

Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. For an appellate court to reverse a trier of fact’s factual finding, it must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact and that the record establishes that the finding is clearly wrong. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Furthermore, when factual findings are based on the credibility of witnesses, the factfinder’s decision to credit a witness’s testimony must be given “great deference” by the appellate court. Rosell v. ESGO, 549 So.2d 840, 844 (La.1989). Thus, when there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, although the appellate court may | fifeel that its own evaluations and inferences are as reasonable. Id.

The manifest error test requires the reviewing court to consider the record as a whole to ascertain whether the trier of fact’s findings constituted manifest error. Since the trier of fact’s findings are accorded great weight on appeal, the Louisiana Supreme Court has set forth a two-part test for use by appellate courts in applying the manifest error standard of review. First, the appellate court must conclude from the record that a reasonable factual basis does not exist for the trier of fact’s findings. Second, the appellate court must determine that the findings were clearly wrong based on the record. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993).

Louisiana Revised Statute 23:1203 A, prior to its amendment in 1997, provided that:

In every case coming under this Chapter, the employer shall furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of this state as legal.... The obligation of the employer to furnish such care, services, treatment, drugs, and supplies, is limited to the reimbursement determined to be the mean of the usual and customary charges for such care, services, treatment, drugs, and supplies, as determined under the reimbursement schedule annually published pursuant to R.S. 23:1034.2 or the actual charge made for the service, whichever is less.

The statute specifically addresses an employer’s obligation to provide necessary medical care to an employee who has been injured at work. However, the statute also applies to health care providers seeking reimbursement for treatment of the injured employee. See Stewart v. Self-Insurer’s Bureau, 626 So.2d 34, 36-37 (La.App. 1 Cir.1993).

Mr. Boudreaux argues that the WCJ erred in determining that its medical treatment was not an emergency. At the time of Mr. Boudreaux’s accident and injury, La. R.S. 23:1142 provided in pertinent part:

A. Nonemergency care. Health care providers may not incur more than an aggregate total of one thousand dollars in nonemergency diagnostic testing or treatment without the mutual consent of the employer or its worker’s compensation insurer and the employee. Fees for nonemergency services of health care providers in excess |7of one thousand dollars shall not be an enforceable obligation against the employee or the employer or the employer’s worker’s compensation insurer unless all parties have agreed upon the diagnostic testing or treatment by the health care provider.
B. Emergency care. (1) In no event shall prior consent be required for any emergency procedure or treatment deemed immediately necessary by the treating health care provider. Any health care provider who authorizes or orders emergency diagnostic testing or treatment, when said diagnostic testing or treatment is held not to have been of an emergency nature, shall be responsible for all of the charges incurred in such diagnostic testing or treatment. Said health care provider shall bear the burden of proving the emergency nature of the diagnostic testing or treatment. (2) Fees for those services of the health care provider held not to have been of an emergency nature shall not be an enforceable obligation against the employee or the employer or the employer’s worker’s compensation insurer unless all parties have agreed upon the treatment or diagnostic testing by the health care provider.

The statute requires that Ideal be notified as to the treatment and charges for it to be responsible for compensation over $1,000.00, unless the treatment was of an emergency nature. See Stewart v. Self-Insurer’s Bureau, 626 So.2d at 36-37; Anesthesia East v. CIGNA Insurance Company, 598 So.2d 1253, 1254 (La.App. 4 Cir.1992). In the instant case, it is undisputed that Ideal did not consent to and was not notified of the treatment of Mr. Boudreaux concerning his internal bleeding. Moreover, despite Dr. Ruiz’s contentions at the hearing that the treatment of Mr. Boudreaux was in the nature of emergency care, the WCJ determined that the treatment was not emergency treatment.

Under LSA-R.S. 23:1142, if the health care provider’s services are found to be of a non-emergency nature, any fees for the nonemergency services in excess of $1,000.00 shall not be an enforceable obligation against the employee, employer, or insurer unless all parties have agreed to the provider’s services. The burden of proof is on the claimant or the health care provider to show by a preponderance of the evidence that the medical services were necessary and to show the value of those services. See Stewart v. Self-Insurer’s Bureau, 626 So.2d at 36-37; Anesthesia East v. CIGNA Insurance Company, 598 So.2d at 1254.

In his deposition, Dr. Ruiz testified that he did consider the possibility that

Mr. Boudreaux could have internal bleeding as an emergency. He indicated that |sif the patient starts dropping hematocrit and hemoglobin, that could be a problem. He did admit, however, that upon initial examination of Mr. Boudreaux, Mr. Bou-dreaux did not have symptoms such as being clammy or flushed. Those symptoms, if they were present, would have prompted Dr. Ruiz to take Mr. Bou-dreaux’s blood pressure. If the blood pressure were low, that would have prompted him to call an ambulance. Dr. Ruiz defined an emergency situation as ultimate and life-threatening. He went on to describe that a mid-stream situation, as compared to one that is ultimate and fife-threatening, would be one in which a patient started to bleed, and the physician would take note that that condition is not normal and it cannot be allowed to continue for too long a time. Dr. Ruiz also mentioned that another possible treatment, seemingly as an alternative to surgery, could be to stop the medication that might be causing the internal bleeding, and then try mild treatments. Dr. Ruiz admitted that Mr. Boudreaux’s initial lab work showed results that might indicate that he had not lost enough blood to make him anemic. Dr. Ruiz also stated that he initially hospitalized Mr. Boudreaux to run some initial tests, for observation and to get a consult from Dr. Birriel, the physician who ultimately performed the endoscopes and laparotomy on Mr. Boudreaux. Although Mr. Boudreaux’s medical treatment might have reached a point of being “immediately necessary” some time while in Lakewood Hospital, there is also a reasonable basis for the WCJ’s finding that the medical condition and the treatment that ensued did not rise to the level of “immediately necessary” and an emergency at the time Mr. Boudreaux first visited Dr. Ruiz at his office and also at the time he was admitted into the hospital.

After considering the facts pertaining to Mr. Boudreaux’s treatment, we are unable to find that the WCJ manifestly erred in finding that Mr. Boudreaux failed to prove his treatment was of an emergency nature, such that it constituted an emergency procedure or treatment deemed immediately necessary by the treating health care provider as required by LSA-R.S. 23:1142(C). A reasonable factual basis existed to support the WCJ’s findings. As a result, we cannot substitute our own judgment and find that the WCJ was manifestly erroneous or | flclearly wrong in its findings. As a result, we pretermit addressing the other assignments of error.

CONCLUSION

For the foregoing reasons, the judgment of the WCJ in favor of Ideal Rentals, Inc. and CNA is affirmed. All costs are assessed to appellant, Jack L. Boudreaux, Jr.

AFFIRMED.

      . The Louisiana Workers' Compensation Act in effect on the date of the claimants injuries is controlling. Gilmore v. SGB Construction Services, Inc., 97-1669, p. 4 (La.App. 1 Cir. 5/15/98), 712 So.2d 663, 665.


author: 2McCLENDON, Judge.

text:
    Threntha Lynn RATLIFF, Individually, and as Tutrix of the Estate of Sonya Ratliff, Minor and Clorenda Ratliff, Minor, and Allen Ratliff, Darlene Ratliff Owens v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2002 CA 0733.
    Court of Appeal of Louisiana, First Circuit.
    March 28, 2003.
    Rehearing Denied May 30, 2003.

      Michael J. Paduda, Jr., Bogalusa, Counsel for Plaintiffs/Appellees Threntha Lynn Ratliff, Individually and as Tutrix of the Estate of Sonya Ratliff, Minor, Clorenda Ratliff, Minor, and Allen Ratliff and Darlene Ratliff Owens.
    Craig J. Robichaux, Mandeville, Counsel for Defendant/Appellant State of Louisiana, Department of Transportation and Development.
    Before: FOIL, McCLENDON, and KLINE, JJ.

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

   2McCLENDON, Judge.

This appeal arises from a wrongful death and survival action award against the State of Louisiana for an automobile accident that occurred on the Pearl River Bridge, spanning the Pearl River between Louisiana and Mississippi. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 19, 1986, plaintiffs’ mother, Bertha Ratliff Peters, while a passenger in a vehicle driven by Thomas Davis, was mortally injured when their vehicle left their lane of travel and collided with a vehicle driven by D.L. Kennedy, which was traveling in its proper lane of travel and approaching from the opposite direction. This accident occurred on the eastbound side of the Pearl River Bridge, as the Davis vehicle passed into Mississippi from Bogalusa, Louisiana.

Plaintiffs’ wrongful death and survival action was filed on June 30, 1986 against the State of Louisiana through the Department of Transportation and Development (DOTD), alleging the negligence of the state in the design, construction, maintenance, and/or the failure to warn motorists of same. DOTD answered the suit, denying liability and alleging negligence on the part of the other parties to the accident. Plaintiffs’ petition was later amended to change the status of plaintiffs who had previously been minors and had subsequently attained the age of majority

Following a trial in the matter, DOTD was found to be one hundred percent liable for the accident, and damages were awarded to plaintiffs in the amount of $557,500.00. DOTD appealed this judgment and on appeal makes the following assignment of errors:

A. The district court erred in admitting into evidence the bridge inspection reports in contravention of 23 USCA 409. As a result of this error, there is no deference given |3by this court to the findings of fact made by the district court.
B. The district court erred in finding that DOTD had the garde and/or maintenance responsibility for the section of the Pearl River Bridge at issue.
C. The district court erred in failing to follow the Supreme Court’s analytical framework as espoused in [Reichert v. State Department of Transportation and Development, 96-1419 (La.5/20/97), 694 So.2d 193] and in particular the continued necessity to determine as a matter of fact/law whether a particular commission or omission is a cause in fact of the harm, which otherwise would fall within the duty owed by the defendant to the plaintiff.
D. The district court erred in failing to apply the longstanding jurisprudential rule that the driver of a vehicle who collides with another vehicle in its proper lane is presumed solely at fault, unless the offending driver can exculpate himself by clear and convincing evidence from even the slightest fault.
E. The district court erred in failing to apportion fault to Mr. Davis who collided with another vehicle in its proper lane.
F. In the alternative, the district court committed manifest error in making certain findings of fact.
G. The district court erred in failing to recognize the separation of powers and/or discretionary function immunity accorded DOTD.
H. The district court erred in awarding damages, including the award of certain elements of damage and/or erred in the amount awarded based upon the lack of evidence in this case.

DISCUSSION AND ANALYSIS

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Evans v. Lungrin, 97-0541, p. 6 (La.2/16/98), 708 So.2d 731, 735; Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993), citing Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). However, where one or more trial court legal errors interdict the fact-finding | ¿process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence. Evans v. Lungrin, 97-0541 at pp. 6-7, 708 So.2d at 735, citing Ferrell v. Fireman’s Fund Insurance Company, 94-1252, p. 7 (La.2/20/95), 650 So.2d 742, 747.

In his reasons for judgment, the trial judge very succinctly summarized the voluminous and detailed trial testimony and evidence as follows:

On April 19, 1986, Bertha Peters was a guest passenger in a Chevrolet Che-vette being driven by Thomas Davis. The Chevette was traveling east on Louisiana Highway 10 going from Bogalusa to Mississippi. Davis encountered a light rain as he approached the Pearl River Bridge. Davis recalls seeing another car coming toward him as he entered the grid section of the bridge. [FN 1. The grid was also referred to as a “grate” at times during the trial by the various witnesses and the attorneys.] He estimated his speed at that time to be approximately 40 miles per hour and recalled slowing down on the grid because the bridge was narrow. Davis testified that when his vehicle entered the grid surface of the bridge his car started to slide into the other lane of traffic. He tried to steer the vehicle back to the right but testified he had lost control and hit a vehicle being operated by D.L. Kennedy. Davis could not remember if his vehicle hit the curb of the bridge or if he used his brakes prior to impact.
Cherayl [sic] Johnson was traveling from Mississippi to Louisiana on the bridge with her husband and two daughters when the accident occurred. She testified that as she entered the grid of the bridge, she observed another vehicle, driven by Davis, coming toward her. The Davis vehicle slid over into her lane of traffic facing her head-on. In response, she slowed her vehicle, and the Davis vehicle slid back into the other lane. After Davis narrowly missed her, she looked in her rearview mirror and saw him slide back into her lane, striking the Kennedy vehicle.
Johnson observed that before Davis’ vehicle entered the grid, Davis was “driving fine” “still in his lane of traffic” just “like a normal car coming up the bridge.” She testified that he was not slipping or sliding on the cement portion of the bridge, prior to entering the grid surface. However once on the grid, the Davis vehicle began to slide out of control as if he were on a “piece of glass”. Johnson estimated that her speed was approximately 20 to 25 miles per hour with Davis’ speed at 30 | Hto 35 miles per hour before the accident. She noted that at least three-fourths of Davis’ vehicle moved into her lane, and that he slid sideways when he moved back into his lane.
Following the collision, Johnson was able to stop her vehicle on the grid surface. As she exited her vehicle, she slid on the grid herself. She and her daughter went to the Davis vehicle to offer assistance where they observed that Ms. Peters, after trying to speak, passed away.
D.L. Kennedy was traveling west on the bridge behind the Johnson vehicle in a 1979 Oldsmobile with his wife Vera. He testified he saw Davis lose control when Davis was approximately 20 to 25 feet onto the steel grid. He then observed Davis pass the Johnson vehicle, and it appeared that the Davis vehicle hit the curb in Davis’ lane, however Kennedy did not actually see Davis hit the curb. Kennedy further recalled that Davis suddenly came back into his lane colliding with his vehicle which resulted in it being knocked back eight to ten feet. The collision occurred in Kennedy’s lane of traffic approximately thirty feet before his vehicle would have reached the steel grid.
Y.B. “Bull” Varnado owned a camp which was located approximately seventy-five feet from the Pearl River [B]ridge. He was at his camp at the time of the accident and heard the collision of the vehicles. He went immediately to the bridge to offer assistance. In his testimony, Varnardo described the grid as “slick”. He also noted that the accident occurred approximately thirty feet from the grid and expressed it appeared that Davis had lost control of his vehicle. Varnado also testified that he knew of many vehicles over the years which had lost control on the grid and would either spin around or hit the railing. This occurred frequently in rainy weather. Further, many of the accidents on the bridge were never reported.
The Pearl River [B]ridge was constructed in 1953. [FN2. The Pearl River [B]ridge was torn down and replaced in 1997.] In connection with this construction, the State of Louisiana and the State of Mississippi entered into an agreement whereby each state would pay for fifty percent of the construction for the 240 foot swing span. The agreement also called for each state to maintain and repair its approach structure up to the rest piers. Mississippi would maintain and repair the swing span, however, if the costs of repair to the swing span exceeded $1,500.00, then the two states would conduct a joint inspection. Louisiana would then reimburse Mississippi for fifty percent of the costs associated with the repair of the swing span.
Frank Legoria, a bridge inspector for the State of Louisiana at the time of the accident, prepared an inspection report of the bridge on July 17, 1984, noting particularly that the grid was worn considerably due to excessive traffic. He expressed in his report the grid was 100 percent worn in some areas and 75 percent worn in other areas. Legoria observed that the grid needed replacing as sections were broken apart. He also took some photographs which were attached to his report 1 fiand sent to DOTD in Baton Rouge [on July 24, 1984], Le-goria testified that some of the grooves were worn and had become slick. He noted that he did not see the bridge when it was originally constructed but stated that assuming it had grooves, they were no longer there, which he considered to be defective. From 1982 to 1992, Legoria regularly inspected the entire bridge and could not recall any maintenance ever being performed on the grid.
Gill Gautreau, a bridge maintenance engineer with DOTD, testified that before 1991 there were no joint inspections performed between Mississippi and Louisiana. He expressed that prior to 1991, if Louisiana detected something significant upon inspection, it would inform the other state. Gautreau explained that because of the state’s lack of manpower, it was impossible for the state to read through every report, so instead it relied on a rating system.
The plaintiffs offered Andrew McPhate as an expert in mechanical engineering, vehicle dynamics, and accident reconstruction. He examined the grid section of the Pearl River [B]ridge in 1992 and found it was essentially “worn out” and therefore unreasonably dangerous to the motoring public. He noted there was an absence of “teats” on the grid and observed that the metal had worn away thereby lacking the sharp comers which are necessary to latch onto tires for traction. McPhate observed that steel grids were designed to last for twenty to twenty-five years, however, the grid on the Pearl River [B]ridge was thirty-three years old at the time of the accident. He testified that when a steel grid gets wet, it has less traction and less friction. Additionally, a light rain will interact with the dirt and oil on the surface to make the grid slippery.
McPhate observed that since a Che-vette has very small, narrow tires, it has fewer longitudinal features making it easier for the vehicle to slide from side to side. He estimated the co-efficient of friction on the bridge in the wheel paths to be .3 (which he considered defective) and from side to side to be less than .3. McPhate opined that if a driver took steering action after encountering the grid, he would have less lateral resistance.
McPhate expressed that the steel grid surface, as it existed in 1986, was unreasonably dangerous to the motoring public when it was wet, causing the Davis vehicle to lose control and not be able to recover, therefore resulting in the accident. Based on his study of the bridge and the depositions of the various witnesses, he believed the accident occurred when Davis entered the grid, at which time he may have made a steering move away from the guard rail. When he did, because of the slick grid, he lost control and started to slide into Johnson’s lane, then back into his lane, and finally into Kennedy’s lane. He opined that it was possible for the Davis vehicle to move the distance of 270 feet, accommodating one and one-half lane changes, at 45 miles per hour, with approximately a .2 lateral friction co-efficient.
17James Clary, Sr., an expert in civil engineering with expertise in bridge design, safety, signing, and maintenance, inspected and measured the Pearl River [B]ridge. He opined that to replace the steel grid would have cost approximately $50 per square foot or a total of $288,000.00 (Louisiana’s portion would have been $144,000.00). Clary also expressed that a steel grid which is worn down is extremely dangerous and slippery, especially in the misting rain, which he believed was the condition of the grid at the time of the accident. He opined that the failure in maintenance, design, and signage caused the accident.
The defense produced Jack Hum-phries as an expert in traffic engineering, safety, signage, maintenance, design, and accident reconstruction. He reviewed the bridge plans; inspection reports; depositions of witnesses; accident reports; and photos and opined that the cornering friction on a grid surface in wet weather is greater than .3. Tests were performed on another bridge located in St. Tammany Parish known as the Highway ll[B]ridge. Humphries believed the results were transferable to the Pearl River [B]ridge because both bridges had worn grids. He expressed that since Davis’ vehicle went left and then back to the right, this indicated there was cornering friction available. Humphries testified that based on his review of the evidence, there was no condition on the bridge which caused Davis to leave his lane of travel.
Larry Petersen, an expert in the field of frictional properties, performed tests on the Highway ll[B]ridge and testified the Highway 11 and Pearl River [B]ridges were similar. He opined that tire squirm on a grid surface is minimal and can not redirect a vehicle. According to Petersen’s calculations, he found it impossible for Davis to make the lane changes he allegedly made without having lost control of the vehicle on the concrete approach before the grid. He expressed that if a .3 coefficient of friction is used, it would take more than 270 feet to accomplish the lane changes Davis made. Petersen also opined that his research indicates that steel grids are not slippery and provide ample safety traction.

ADMISSIBILITY OF BRIDGE INSPECTION REPORTS

In appellant’s first assignment of error, it is alleged that the trial court erred as a matter of law in admitting bridge inspection reports prepared by DOTD into evidence, allegedly in contravention of 23 USCA 409. Because the bridge was constructed with federal funds and the inspection of the | ¿facility is a matter of federal law, appellant argues the admissibility of the reports is violative of 23 USCA 409.

Because we decide herein that the pre-trial stipulation of the parties rendered the reports in question admissible, we find it unnecessary to address appellant’s argument under 23 USCA 409.

It is clear from the record that the reports at issue were stipulated by the parties as admissible at trial, though DOTD apparently later changed its mind in this regard. On August 6, 2001, pretrial stipulations were filed by the parties and signed by both the DOTD’s and the plaintiffs’ attorneys. These stipulations contained the following paragraph:

Exhibits—(Stipulated upon)
a. Reports attached to Legoria and Fekete deposition^]:
1. August 3,1982
2. July 24,1984
3. July 29,1986

These reports are the bridge inspection reports that were later objected to by the state.

Although stipulations cannot affect the powers, duties, and prerogative of the court, generally a stipulation has the effect of a judicial |nadmission that binds the parties and the court when it is not in derogation of the law. Bujol v. Entergy Services, Inc., 2000-1621, p. 7 (La.App. 1 Cir. 8/14/02), 833 So.2d 947, 957. Pre-trial stipulations as to what evidence will be presented to the court have been enforced. See LeRay v. St. Paul Fire and Marine Insurance Co., 444 So.2d 1252, 1255 (La.App. 1 Cir.1983), writ dismissed, 452 So.2d 1174 (La.1984).

Thus, we find no legal error in the trial court’s admission of the bridge inspection reports into evidence.

LIABILITY OF DOTD

In its second and third assignments of error, DOTD maintains that the district court erred in finding that it had garde and/or maintenance responsibilities over the section of the bridge at issue; and, the district court failed to follow the guidelines established in Reichert v. State Department of Transportation and Development by failing to determine whether the acts or omissions of DOTD were a cause in fact of the harm that would otherwise fall within the duty owed by the defendant to the plaintiff.

The duties of DOTD are set forth in LSA-R.S. 48:193, which provides in pertinent part as follows:

A. The department is hereby directed to repair and to keep in operating condition at its sole cost and expense, all municipal roads or streets which form a continuation of one of said highways; however, the final decision as to the designation or location of the particular municipal road or streets to be placed in the state system shall be left entirely up to the department. At the request of the governing authority of a municipality, the work may be contracted out to such municipality, but all such maintenance costs shall be paid for by the state, provided that the state shall not be responsible for the maintenance of sewers, street lighting, gas and water mains, and other public utilities. All damages to the streets or highways occasioned by the laying of sewers, street lighting, and other public utilities shall be paid by the owner thereof. The | ^department shall control the parking on any highway which is hereafter constructed, widened, or relocated at the sole expense of the state. The department shall control signal lights and traffic other than parking on highways in the state system established hereby.
B. All new construction or relocation of roads, overpasses, underpasses, bridges, tunnels, or other highway betterment of roads in the state system located in municipalities shall be a cooperative effort between the municipality and the department; however, nothing herein shall prohibit a municipality from making contributions necessary to improve said highways beyond the standards fixed by the department. Nothing herein shall preclude the department from requiring railroads and such other public utilities which use the same from contributing to the payment of overpasses and underpasses and other traffic control devices, which contribution shall be reasonable under the circumstances and conditions to be determined by negotiation or arbitration. Nothing in this Subsection shall in any way affect the provisions of R.S. 33:3701 or any other general or special law applicable to municipal streets and to the extension of state highways through municipalities. Nothing herein shall be construed as altering the existing law concerning the removal of public utilities.

C. In order to create a more efficient system of state highways and to eliminate a duplication of effort and properly channel traffic through the said municipalities, each municipality of over five thousand in population in this state, according to the latest available census, shall develop and adopt a master street plan which shall be submitted for' approval by the department which shall insure the proper location and integration of the state highway connections in the total city street plan, which shall be subject to revision as traffic conditions may require.

D. The department is fully authorized through its officers and officials to enter into all contracts and agreements with municipalities, parishes, road districts, or other public agencies of the state of Louisiana or of the United States, and all private individuals, partnerships, corporations, or other private legal entities necessary to carry out the provisions of R.S. 48:191 through 193.

E. All public roads, road projects, bridges, tunnels, or other highway betterment involving parish or municipal streets or roads made under the provisions of R.S. 48:191 through 193 or any other Act of the legislature in which state-allocated revenues are used in the construction thereof shall be constructed and maintained in accordance with engineering standards and procedures established by the department, and the department is fully authorized to withhold certification or In approval to any such project or highway betterment unless it is constructed in accordance with the standards established by the department for the project. [Emphasis added.]

In the instant case, the DOTD contends it contracted away its obligation to conduct maintenance on the Pearl River Bridge by virtue of its contract with Mississippi that required Mississippi to maintain the bridge. Therefore, DOTD maintains the State of Louisiana has no liability for any failure of Mississippi to fulfill that obligation.

In Robinson v. State Department of Transportation and Development, 454 So.2d 257 (La.App. 1 Cir.1984), writ denied, 458 So.2d 122 (La.1984), this court rejected a similar argument of DOTD that it had contracted with a private company to perform maintenance of a roadway and that DOTD’s liability was thereby shifted to the private company as well. Noting that the maintenance of state highways in a reasonably safe condition is paramount to the safety of the public, as a matter of public policy there must be an accountable entity to whom the public can look for adequate maintenance of the roadways as well as for redress in the event that a defective condition in the highway precipitates injury. The court concluded that this duty to maintain the public roads and highways has been statutorily imposed on DOTD by LSA-R.S. 48:21, and held that DOTD could not absolve itself of this duty by contract with a private entity. Robinson v. State Department of Transportation and Development, 454 So.2d at 261-62.

In so holding, the Robinson v. State Department of Transportation and Development court relied on the decision of Robertson v. Handy, 354 So.2d 626 (La.App. 1 Cir.1977), writ denied, 356 So.2d 434 (La.1978). In Robertson v. Handy, this court held that although LSA-R.S. 48:192 and 48:261 authorized the state to contract with a municipality to perform maintenance on state highways within its corporate limits, the statutes do not relieve the state of the fundamental responsibility that the maintenance work be properly performed. Robertson v. Handy, 354 So.2d at 631.

We find the rationale of Robinson v. State Department of Transportation and Development and Robertson v. Handy equally applicable to contracts by the State of Louisiana with other states for the maintenance of state roads and highways. The statute underlying these decisions, LSA-R.S. 48:193, specifically provides that, “The department is fully authorized through its officers and officials to enter into all contracts and agreements with municipalities, parishes, road districts, or other public agencies of the state of Louisiana or of the United States, and all private individuals, partnerships, corporations, or other private legal entities necessary to carry out the provisions of R.S. 48:191 through 193.”

We find the phrase “or other public agencies ... of the United States” contemplates that Louisiana can enter into a contract for the maintenance of its highways with either a federal or a non-Louisiana state agency. However, if public policy considerations compel our courts to prohibit DOTD from transferring total responsibility and liability for state highways to either a private entity or a Louisiana political subdivision, these same considerations prohibit DOTD from transferring total responsibility and liability for state highways to another state.

Even were we not to so hold, we believe the trial court correctly cited Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364 (La.1984), for the proposition that a duty can be assumed that does not otherwise exist, which renders such an actor liable for any breach of the assumed duty. In the L ¡¡instant case, even were there no independent duty to ensure the Pearl River Bridge were properly maintained, we agree with the trial court that DOTD, by its actions, voluntarily assumed this duty.

In Harris v. Pizza Hut of Louisiana, Inc., Pizza Hut argued that it had no duty to protect its patrons from the criminal acts of third persons on its premises. Nevertheless, Pizza Hut hired off-duty police officers to provide security for the Pizza Hut premises. When the officer on duty on the evening in question was negligent in the performance of his duties, resulting in the shooting of several patrons by would-be robbers, the supreme court held that Pizza Hut assumed the duty to provide security for its customers and was liable for damages caused by the breach of this assumed duty. Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d at 1371-72.

Likewise, even if DOTD had no independent duty to ensure the Louisiana section of the Pearl River Bridge were properly maintained, it assumed that responsibility by routinely sending bridge inspectors to ascertain the condition of the bridge.

One of the bridge inspectors who prepared the reports at issue, Mr. Legoria, testified that he began inspecting the Pearl River Bridge around 1979, but later was instructed to discontinue the Louisiana inspections that had previously been conducted independent of Mississippi, and thereafter, beginning sometime between 1989 to 1991, all inspections were conducted jointly with Mississippi inspectors. Mr. Legoria testified that they had previously been under the impression that it was Louisiana’s responsibility to inspect the bridges, but he was later instructed that Mississippi had maintenance responsibility for the bridge.

|uIt was the testimony of Mr. Legoria that prior to the accident in question, he observed that the grid was worn considerably due to excessive traffic (one hundred percent worn in some areas and seventy-five percent in other areas); he stated that the grid needed replacing. Mr. Legoria further testified that the grooves that had originally protruded from the surface of the grid were no longer present, having been worn away. Mr. Legoria additionally could not recall any maintenance ever having been performed oh the grid. Mr. Le-goria’s 1984 bridge inspection report rated the bridge overall at “5-6,” which is considered “poor” to “fair,” and recorded his hand-written notations as to the degree of wear he found on the bridge and his opinion that the grid might .have needed replacing at that time.

Mr. Fossier, a DOTD engineering manager, testified that if “something very significant” were reflected in a bridge inspection report, Mississippi would have been notified. However, Mr. Fossier was unaware of whether any information contained in the reports at issue had in fact been transmitted to Mississippi. Mr. Fossier stated that in the reports at issue the bridge had been rated overall as “mostly fair to good;” however, the comments that were attached were somewhat inconsistent with the rating given. Mr. Fossier further stated that if he had received such a report, containing inconsistencies, he would have contacted the bridge inspector and requested a new report be submitted since the rating assigned did not match the comments. Mr. Fossier admitted that at the time the inconsistent report was submitted, it was not questioned in all probability, because there was a manpower shortage in the department. Mr. Fossier was unable to point to any documentation that the negative information contained in the reports |1Kwas conveyed to Mississippi and Louisiana made no effort to correct the defect found until the bridge was torn down and replaced in 1997.

DOTD had a responsibility to ensure the Louisiana portion of the Pearl River Bridge was properly maintained. DOTD inspectors discovered, prior to the accident at issue herein, that the bridge grid was very seriously worn and needed replacing; however, no remedial action was taken for well over a decade nor was it asserted that DOTD ever requested that Mississippi take remedial action. Thus, we find no merit in DOTD’s argument that it had no duty to maintain the bridge in question.

FAILURE TO ASSESS FAULT OF THOMAS DAYIS

Appellant contends that it was not established at trial that any action or inaction on its part was a cause in fact of the accident. Appellant also contends that the trial court erred in failing to assess any fault to Mr. Davis, and that but for the negligence of Mr. Davis in failing to keep his car under control, the accident would not have occurred. Appellant further maintains the trial court committed manifest error in its findings of fact.

The trial court resolved the issue of fault as follows:

[T]here was much testimony produced from the various experts on how this accident occurred. Defendant’s expert, Mr. Peterson gave persuasive testimony that Davis could not have lost control of his vehicle on the grid surface based on his calculations but must have lost control on the approach portion of the bridge. However, this Court can not dismiss the testimony given by the witnesses who actually saw the accident and finds these witnesses to be the most helpful in reconstructing the events leading up to the accident. Ms. Johnson, in particular was very helpful and credible, as she was the first person to encounter Davis on the bridge and was not involved in the subsequent impact. .. .[S]he testified that Davis had control of his vehicle prior to driving on the grid but once his vehicle was on the grid, he lost control and started sliding. Kennedy and Davis also testified that Davis had his vehicle launder control before he arrived at the grid surface. Both Johnson and Bull Varnardo expressed that the grid was slippery at the time of the accident, Johnson actually slipping on the grid herself. Therefore, the Court concludes that Davis had control of his vehicle before he reached the grid surface and lost control of his vehicle once he reached the grid surface.
The physical evidence of the actual grid piece itself, the photographs of the grid, as well as the testimony of McPhate, Clary, and Legoria, support that the grooves or teats were worn down. Both McPhate and Clary testified that the absence of these grooves/ teats caused the grid to become extremely slippery, especially in wet weathers. There was also testimony that the grid’s life span had expired some eight to thirteen years before the accident. The defense experts testified that the condition of the grid did not cause Davis to lose control of his vehicle, and that the steel grids provided ample traction. The Court also notes that much of the defense experts’ opinions were based on tests performed on the Highway 11 [B]ridge. The Court does not place much weight on these tests because the bridges involved were different, the tests were performed under different conditions, and the grid surface on the Highway 11 [BJridge does not appear to have been as worn as the Pearl River [BJridge.
Based on all the evidence presented on this issue, the Court concludes that the condition of the grid was unreasonably dangerous to the motoring public and as noted above, that this condition caused the Davis vehicle to lose control on the grid resulting in the accident.

Clearly, the trial judge determined that the condition of the bridge grid alone caused the accident and that Mr. Davis was not negligent. The trial court must also have concluded that any presumption that Mr. Davis was at fault, attributable to the fact that his vehicle was not in his designated lane of travel at the time of the accident, was overcome by testimony, which was found credible, that the defective condition of the bridge caused Mr. Davis’s car to cross into oncoming traffic.

When there is conflicting testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on appeal, unless the documents and objective evidence so contradict a witness’s story, or is the story itself so inconsistent or implausible, that a reasonable person would not credit the story. Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989). Hence, whereas in the instant case, there are two contradictory versions of the events in question, we are unable to say the trier of fact erred in crediting that of one over the other. Thus, we are unable to say the trial judge committed manifest error in finding DOTD one hundred percent liable for the accident at issue.

SEPARATION OF POWERS

Appellant argues the trial court was without legal authority to determine DOTD should have replaced or remedied the defect in the bridge at issue. DOTD points to the complex procedural requirements imposed on it by which improvement projects are funded in arguing that the courts are without authority to impinge on this process and that the state has discretionary immunity in the assignment of priority to highway projects..

We find no merit in this argument. The district courts have jurisdiction to decide personal injury cases even where the state is a defendant. The district court was not asked to intervene in the decision-making authority of DOTD in its road improvement and/or maintenance functions. The bridge had already been replaced by the time the matter went to trial. The trial court simply ruled on the state’s liability for the condition of the roadway at the time of the accident.

DAMAGES

The trial court awarded each of Ms. Peters’ two minor children $125,000.00 for the wrongful death of their mother. The three children over the age of majority were awarded $100,000.00 each. The court further found that Ms. Peters lived for a short while after the accident and awarded $7,500.00 for her pain and suffering immediately prior to her death, on plaintiffs’ survival action. Appellant contends these awards were excessive.

| iSIn the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury. LSA-C.C. art. 2324.1. In reviewing an award of general damages, the court of appeal must determine whether the trier of fact has abused its much discretion in making the award. Turner v. Ostrowe, 2001-1935, p. 5 (La.App. 1 Cir. 9/27/02), 828 So.2d 1212, 1216, writ denied, 2002-2940 (La.2/7/03), 836 So.2d 107, citing Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. Youn v. Maritime Overseas Corp., 623 So.2d at 1261; Turner v. Ostrowe, 2001-1935 at p. 5, 828 So.2d at 1216. Only after it is determined that there has been an abuse of discretion is a resort to prior awards appropriate, and then only to determine the highest or lowest point of an award within that discretion. Turner v. Ostrowe, 2001-1935 at p. 5, 828 So.2d at 1216-17, citing Coco v. Winston Industries, Inc., 341 So.2d 332, 335 (La.1976); Dennis v. The Finish Line, Inc., 99-1413, p. 20 (La.App. 1 Cir. 12/22/00), 781 So.2d 12, 30, writ denied, 2001-0214 (La.3/16/01), 787 So.2d 319.

After a thorough review of the evidence presented to the trial court, we are unable to say there was an abuse of discretion in the award of damages in this case.

| ^CONCLUSION

For the reasons assigned the judgment of the trial court is affirmed. Costs of this appeal in the amount of $2,710.00 are to be borne by appellant herein, State of Louisiana through the Department of Transportation and Development.

AFFIRMED.

      . "Notwithstanding any other provision of law, reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144, and 152 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists, or data.” 23 USCA 409.

      . Nevertheless, were we required to rule on the 23 USCA 409 issue, we believe the bridge inspection reports at issue in the instant case fall within the class of raw data, facts, or reports excepted from exclusion by 23 USCA 409, as not having been collected or compiled expressly for the purposes specified in 23 USCA 409, and therefore were admissible in court. See Reichert v. State Department of Transportation and Development, 96-1419 (La.5/20/97), 694 So.2d 193; Wiedeman v. Dixie Electric Membership Corporation, 627 So.2d 170 (La.1993), cert. denied, 511 U.S. 1127, 114 S.Ct. 2134, 128 L.Ed.2d 864 (1994). Paul B. Fossier, Jr., then a DOTD bridge engineering manager, testified that when a bridge report is received in the Baton Rouge office, the information contained therein is summarized in the computer system and used to generate reports through the department, though he stated that some information is sent to the Federal government to qualify bridges for replacement funding.

      . Moreover, had there been any error in the admission of these reports, it was rendered harmless by the fact that the testimony of the preparers of the relevant reports gave testimony at trial, which would have been available had the reports been excluded.

      . "The functions of the department shall be to study, administer, construct, improve, maintain, repair, and regulate the use of public transportation systems and to perform such other functions with regard to public highways, roads, and other transportation related facilities as may be conferred on the department by applicable law.” LSA-R.S. 48:21(A).

      . DOTD has been found liable in other instances where it assumed a duty to maintain a roadway it was not otherwise responsible for. See Rick v. State Department of Transportation of Development, 93-1776 (La.1/14/94), 630 So.2d 1271; Arnold v. Illinois Central Gulf Railroad, 501 So.2d 778 (La.App. 1 Cir.1986), writ denied, 503 So.2d 479 (La.1987).

      . At the time of trial, Mr. Fossier apparently held the position in the Baton Rouge office responsible for receiving and reviewing bridge inspection reports, though he was not the person who received the reports at issue herein.

      . James Clary, Sr., plaintiff’s expert, opined that to replace the steel grid would have cost approximately $50 per square foot or a total of $288,000.00 and that Louisiana's portion would have been $144,000.00.

      . The children ranged in age from fifteen to twenty-six at the time of their mother’s death.