author: EZELL, Judge.

text:
    Melba Elaine JESSOP, et al. v. CITY OF ALEXANDRIA, et al.
    No. 2003-1500.
    Court of Appeal of Louisiana, Third Circuit.
    March 31, 2004.
    Rehearing Denied May 26, 2004.

      Paul Holliday Fleming Baker, Law Office of Nan Landry, Lafayette, LA, for Defendants/Appellees, City of Alexandria, Alexandria/Pineville AreaConvention & Visitors Bureau.
    Chris Smith, III, Leesville City Court Judge, Leesville, LA, for Plaintiffs/Appel-lees, Melba Elaine Jessop, Richard Allan Jessop.
    Mark L. Ross, Lafayette, LA, for Third-Party Defendants/Appellants, Scottsdale Ins. Co., M & M Enterprises, Inc., Arena Productions.
    Court composed of GLENN B. GREMILLION, BILLY HOWARD EZELL, and ARTHUR J. PLANCHARD, Judges.

       Honorable ARTHUR J. PLANCHARD, Retired, participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   EZELL, Judge.

This is a tort action arising from injuries sustained by a patron while attending a sale show at the Alexandria Riverfront Center, Arena Productions, Inc. M & M Enterprises, Inc., and Scottsdale Insurance Company appeal a judgment granting a motion for summary judgment in favor of the Alexandria/Pineville Area Convention and Visitors Bureau and the City of Alexandria.

FACTS

Melba and Richard Jessop initiated this lawsuit for damages claiming Melba tripped and fell, injuring herself while at a “sale show” at the Riverfront Center. The show was promoted by Michael Okashah of Arena Productions, Inc. and M & M Enterprises, Inc. The Jessops filed suit against Arena, M & M, Scottsdale Insurance Company, the Alexandria Convention and Visitors Bureau, and the City of Alexandria.

The Convention and Visitors Bureau and the City (Third-Party Plaintiffs) filed a third-party demand against Arena, M & M and Scottsdale (Third-Party Defendants) requesting a defense and indemnification. Third-Party Plaintiffs later amended their claim alleging that they detrimentally relied on representations by Arena and M & M that they were additional insureds under the Scottsdale policy.

Subsequently, Third-Party Defendants filed a motion for a partial summary judgment seeking to dismiss the third-party demand. Thereafter, Third-Party Plaintiffs also filed a motion for summary judgment seeking a defense and indemnification from Scottsdale.

A hearing was held on August 6, 2002. The trial court rendered judgment granting Third-Party Plaintiffs’ motion for summary judgment and denying the motion for summary judgment of Third-Party Defendants. A joint motion for 12certification of judgment was signed on June 18, 2003. Third-Party Defendants then appealed the judgment. They basically allege two assignments of error. Third-Party Defendants first claim that the trial court erred in finding that Third-Party Plaintiffs were entitled to additional insured status under the Scottsdale policy. Third-Party Defendants also claim the trial court erred in finding that the terms of the Scottsdale policy entitle Third-Party Plaintiffs to a defense and indemnification.

STANDARD OF REVIEW

“Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate.” Ross v. Conoco, Inc., 02-299, p. 5 (La.10/15/02), 828 So.2d 546, 550. A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that [the] mover is entitled to judgment as a matter of law.” La.Code Civ. P. art. 966(B). The facts at this point in the case are not in dispute. The decision in this case turns on the interpretation of an insurance policy and the actions of the parties in entering into the lease of the Riverfront Center for the show.

Interpretation of an insurance policy is usually a legal question that can be properly resolved by means of a motion for summary judgment. When determining whether a policy affords coverage for an incident, the insured bears the burden of proving the incident falls within the policy’s terms. Summary judgment declaring a lack of coverage under an insurance policy may be rendered only if there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded.

Miller v. Superior Shipyard and Fabrication, Inc., 01-2907, p. 4 (La.App. 1 Cir. 8/20/03), 859 So.2d 159, 162, writ denied, 03-2643 (La.12/12/03), 860 So.2d 1159 (citations omitted).

ADDITIONAL INSURED STATUS

Third-Party Defendants argue that the trial court erred in finding that there was a verbal agreement promising to name Third-Party Plaintiffs as additional insureds. Third-Party Defendants further claim that, even if there was a verbal agreement, the written lease between Okashah and Third-Party Plaintiffs provided that the lease “supersedes any verbal agreement that may have been made between the parties.” There is an additional claim by Third-Party Defendants that a certificate of insurance issued by the insurance agent could not add to or change the coverage provided for by the Scottsdale policy.

An insurance policy is a contract between the insured and the insurer and has the effect of law between the parties. Because an insurance policy is a contract, the rules established for the construction of written instruments apply to contracts of insurance. The parties’ intent, as reflected by the words of an insurance policy, determines the extent of coverage, and the intent is to be determined in accordance with the plain, ordinary, and popular sense of the language used in the policy, unless the words have acquired a technical meaning. LSA-C.C. art.2047. If the language in an insurance contract is clear and unambiguous, the agreement must be enforced as written and a reasonable interpretation consistent with the obvious meaning and intent of the policy must be given. The determination of whether a contract is clear or ambiguous is a question of law.

Id. at 162-63 (case citations omitted).

The Scottsdale policy at issue in this case contained a “BLANKET ADDITIONAL INSURED ENDORSEMENT”. The pertinent language relating to the definition of an insured provides:

WHO IS AN INSURED (SECTION II)
is amended to include as an insured any person or organization (called additional insured) whom you are required to add as an additional insured on this policy under a written contract, agreement or permit which must be:
a. currently in effect or becoming effective during the term of the policy; and
b. executed prior to the “bodily injury,” “property damage,” “personal injury,” or “advertising injury.”

A review of the lease signed by Okas-hah reveals that there was no direct requirement in the lease that he add Third-Party Plaintiffs as additional insureds to the Scottsdale policy. Paragraph nineteen provided only that “The Lessee shall provide to the Alexandria Riverfront Center manager, the Alexandria/Pineville Convention and Visitor’s Bureau, proof of adequate comprehensive public liability insurance in the amount of $1 million to paid for solely by Lessee.”

However, paragraph seventeen (emphasis supplied) relating to the lessee and a decorator or other agent provides as follows:

(17) Lessee and the decorator or other agent hired by the Lessee must comply with applicable local, state, and national fire and safety codes. Decorators must be approved prior to entering the facility. Approval may be obtained by having an insurance certifícate on file for general liability, product liability, and workmen’s compensation insurance, with the Alexandria Riverfront Center, Alexandria/Pineville Area Convention and Visitors Bureau, and the City of Alexandria named as additional insured. Lessee shall not allow any open flames in the center unless enclosed by glass. Lessee must not bring any gasoline or other flammable substances into the center. Decorations used by the Lessee shall be of approved flame resistant materials.

While at first blush it appears that only the decorator need add Third-Party Plaintiffs as additional insureds, paragraph seventeen refers to the lessee, decorator, or an agent. Paragraph seventeen also lays out further obligations of the lessee. Additionally, paragraph seventeen does not state who is required to have the insurance certificate on file. One can surmise that all three, lessee, decorator, and agent, must have a certificate of insurance on file listing Third-Party Plaintiffs as additional insureds. While we agree that the lease language is somewhat ambiguous, there are additional facts which support this proposition.

Okashah’s deposition testimony indicates that he purchased the Scottsdale policy through Given/Woods. He explained that he usually worked with David or Mildred at Given/Woods. Okashah stated that he usually gives the information to Given/Woods on how the party is to be named as an additional insured and the company takes care of the matter.

Excerpts of the deposition of Cindy Hastings, the business director for the Bureau who handled contractual agreements, was introduced by both parties. She explained that Okashah signed the lease as a last-minute booking. He signed the lease on March 27, 2000, for the event to be held three days: March 31 to April 2, 2000. She explained that once a person signs the lease and she gets the money, she informs the person that she needs the balance of the money prior to moving in and that she needs a copy of their liability insurance that lists the entities as additional insured.

Hastings further testified that she has a standard form in her computer that lists the items she still needs before the event. A document in the record entitled “Documents/Information Needed, to Complete Contract” indicates that it was faxed on March 30, 2000 to Mildred. The document shows that the general liability insurance in the amount of $1,000,000 had not been received. This document shows that the insurance certificate must list three entities as additional insureds and gives the name of the three entities. Hasting’s name and phone and fax numbers are handwritten on the document.

On that same day a certificate of insurance was issued by Given/Woods & Associates, Inc., showing the dates of the event and listing the three entities as additional insureds. Mildred Wayne’s fax number is handwritten on the bottom.

In Miller, 859 So.2d at 163, the first circuit found that policy language pertaining to an additional insured “if required by written contract” granted additional insured status to a party when its insured had a written contract with the party that required the insured to add the party as an additional insured under the policy even though the party was not specifically named as an additional insured in the policy. The first circuit further held that “[t]he plain wording of the endorsement shows that it applies to any potential liability sought to be imposed upon the additional insured ... because of something the named insured ... is alleged to have done or failed to have done in connection with the named insured’s ... operations.” Id. at 163-64. Therefore, it is obvious that when there is a written contract that requires that a party be named as an additional insured, the policy language automatically includes the party as an additional insured pursuant to any conditions under the additional insured provisions.

An Illinois court interpreted almost identical policy language in United States Fire Ins. Co. v. Hartford Ins. Co., 312 Ill.App.3d 153, 244 Ill.Dec. 530, 726 N.E.2d 126 (1 Dist.2000). In that case, there was also an oral agreement to provide additional insured status to a party. However, a certificate of insurance was not issued until after the accident at issue. The court concluded:

When reading the policy phrase within the context of the entire provision, as we must, the only reasonable construction is that there must be a written document — contract, agreement, or permit — which evidences the insured’s intention to provide insurance coverage to another person or organization before the Hartford policy will cover that person or organization as an additional insured.

Id., 726 N.E.2d at 129.

The court further held:

The only reasonable interpretation of the Hartford policy provision is that an “additional insured” will include only those persons or organizations which have received written confirmation — in the form of a contract, agreement, or permit — of the insured’s promise to provide insurance coverage prior to the event for which coverage is being claimed. It would be unreasonable to hold any “contract” or “permit” must be evidence by a writing, but an “agreement” would not.

Id., 726 N.E.2d at 129-30.

Subsequently, another Illinois court was once again faced with the similar policy language. West Am. Ins. Co. v. J.R. Constr. Co., 334 Ill.App.3d 75, 267 Ill.Dec. 807, 777 N.E.2d 610 (1 Dist.2002). It distinguished United States Fire Ins. Co., noting that the insured in that case denied that insurance coverage was a part of an oral agreement. The court also observed that the certificate of insurance was not requested and received until two days after the accident. In West Am. Ins. Co., written documents, prepared before the accident, existed which evidenced the insured’s intent to include the party as an additional insured. These documents consisted of a certificate of insurance and a letter.

In the present case, although the actual lease itself, did not necessarily require that Okashah list Third-Party Plaintiffs as additional insureds, we agree with the trial court that there was clearly an oral agreement between Hastings and Okashah to list Third-Party Plaintiffs as parties. Hastings stated that she would have told Okashah that she needed proof of liability insurance which listed the three entities as additional insureds. Okashah also agreed in his deposition that it was his understanding that he was supposed to have insurance for the facility where the event was held.

This oral agreement was followed by written confirmation of the agreement. A written request was made by Hastings to Given/Woods for proof of insurance listing the three entities as additional insureds. Obviously, Hastings got the information from Okashah as to where the request should be submitted. In response, Given/Woods issued a certificate of insurance prior to the event, indicating that three entities were additional insureds for the date of the event.

In addition to the fact that the lease itself contained a requirement of a certificate of insurance listing Third-Party Plaintiffs as additional insureds, we agree with the result reached in West Am. Ins. and find that there were sufficient written documents evidencing an agreement that Okashah list Third-Party Plaintiffs as additional insureds for the event. All of the written documents were executed prior to the event and make it clear that the entities were required to be named as additional insureds under the Scottsdale policy and were actually named on the certificate of insurance.

COVERAGE

Third-Party Defendants also claim that the trial court erred in failing to find that the insurance provided by Scottsdale was excess to any other liability insurance for an additional insured. It claims that Third-Party Plaintiffs’ own insurance is primary to Scottsdale’s.

The other insurance provision in the additional insured endorsement provides: “Any coverage provided hereunder will be excess over any other valid and collectible insurance available to the additional insured whether primary, excess, contingent or on any other basis unless a contract specifically requires that this insurance be primary.”

Third-Party Plaintiffs argue that the trial court was correct in concluding that provision conflicted with the “other insurance” provision found in the main policy. We disagree.

It is well-settled that the specific controls the general in the interpretation of statutes and contracts. Corbello v. Iowa Prod., 02-826 (La.2/25/03), 850 So.2d 686. The “other insurance” provision found in the additional insured endorsement is very clear that, for any coverage provided to an additional insured, the additional insurance provided by the Scottsdale police is excess unless a contract specifically states otherwise. This is a limitation for the additional insured only. It does not apply to any other insureds.

None of the written documents in this case state otherwise. Therefore, we find the trial court erred in finding that the coverage provided by the Scottsdale policy was primary.

INDEMNIFICATION AND DEFENSE

While not addressing the issue in its reasons for judgment, the judgment did declare that Third-Party Defendants had to provide both a defense and indemnity to Third-Party Plaintiffs. Third-Party Defendants argue that the issue of negligence is contested, and, therefore, the issue of indemnification was prematurely decided.

The pertinent paragraphs of the Lease are as follows:

(9) Lessor shall not be liable or responsible for and Lessee shall save and hold harmless Lessor from and against any and all claims and damages of every kind, for injury to or death of any person or persons and for damages to or loss of property arising out of or attributed directly or indirectly to the operations of the Lessee hereunder. Lessee shall likewise indemnify Lessor for any and all injury or damage to property belonging to Lessor, arising out or in connection with or result from any and all acts or omissions of the Lessee hereunder, its agents, employees, or invitees. Lessee assumes responsibility for the condition of the leased premises under La. R.S. 9:3221.
(24) Lessor assumes no responsibility whatsoever for any property placed in or on said premises, and said Lessor is hereby expressly released and discharged from any and all liabilities for any loss, injury or damages to person or property that may be sustained by reason of the occupancy on said premises under this agreement. Lessee must receive or make arrangements with a transfer company for the receipt of shipments of exhibits, equipment or other items. Lessor shall not accept shipments directly unless arranged in advance with the Alexandria Riverfront Center Manager.

Quoting from Polozola v. Garlock, Inc., 343 So.2d 1000, 1003 (La.1977), the supreme court in Home Ins. Co. v. National Tea Co., 588 So.2d 361, 364 (La.1991) (citations omitted), reviewed the rules of interpretation of contracts governing indemnity provisions as set forth in a lease as follows:

A contract of indemnity whereby the indemnitee is indemnified against the consequences of his own negligence is strictly construed, and such a contract will not be construed to indemnify an indemnitee against losses resulting to him through his own negligent act, unless such an intention was expressed in unequivocal terms.
.... Continuing, Polozola holds that the general rules which govern the interpretation of other contracts apply in interpreting indemnity contracts.

Regarding an owner-lessor’s responsibility when a lessee contractually assumes the lessor’s responsibility for the condition of the leased premises pursuant to La.R.S. 9:3221, this court in O’Neill v. Thibodeaux, 97-1065, p. 23 (La.App. 3 Cir. 3/6/98), 709 So.2d 962, 974, writs denied, 98-741, 98-870 (La.5/1/98), 718 So.2d 416, 420, recognized that:

[I]n order for an owner-lessor to escape liability under a lease pursuant to La. R.S. 9:3221, he must prove that the lessee assumed responsibility for the condition of the premises under the contract of lease, that the injury must have occurred either to the lessee or anyone on the premises with the permission of the lessee, and that he did not know nor should have known of the defect.

A reading of the pertinent lease provisions reveals that there is no requirement that the lessee indemnify the lessor for the lessor’s own fault. We find that Third-Party Defendants are not required to indemnify Third-Party Plaintiffs for their own negligence or knowledge of a defect in the premises which may have contributed to Mrs. Jessop’s fall. The record indicates that there is a dispute as to the allocation of fault for Mrs. Jessop’s fall. Therefore, the existence of genuine issues of material fact regarding fault preclude granting Third-Party Plaintiffs’ motion for summary judgment on the issue of indemnification. Burns v. McDermott, Inc., 95-195 (La.App. 1 Cir. 11/9/95), 665 So.2d 76.

Regarding Third-Party Defendants’ duty to defend, we first note that the additional insured endorsement provides for the duty to defend as follows:

When this insurance is excess, we will have no duty under Coverage A or B to defend the additional insured against any “suit” if any other insurer has a duty to defend the additional insured against that “suit.” If no other insurer defends, we will undertake to do so, but we will be entitled to the additional insured’s rights against all those other insurers.

Therefore, since we have already ruled that Scottsdale’s policy is excess in this case, there is no duty to defend, based on the policy language, for any claims arising under Coverage A or B. We must now look at whether the lease itself provides for the duty to defend.

“The language in an indemnity agreement dictates the obligations of the parties.” Kinsinger v. Taco Tico, Inc., 03-622, p. 1 (La.App. 5 Cir. 11/12/03), 861 So.2d 669, 671 (citing Meloy v. Conoco, Inc., 504 So.2d 833 (La.1987)). We see nothing in the lease that states anything about a defense. It only speaks in the terms of indemnification. We find that the trial court erred in granting Third-Party Plaintiffs’ motion for summary judgment finding that they were entitled to a defense from Third-Party Defendants.

For these reasons, we agree with the trial court’s grant of summary judgment in favor of the Alexandria/Pineville Area Convention and Visitors Bureau and the City of Alexandria insofar as ruling that they are additional insureds under the Scottsdale policy. However, we reverse the summary judgment insofar as it declares that the Scottsdale policy was primary and that Scottsdale owes a defense under the policy. We also find that any determination of indemnification is premature until liability is established. Costs of these proceedings are split between the parties.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.


source: Caselaw Access Project

author: PLANCHARD, Judge.

license: Public Domain

text:
    Celia Ann MARKS, et al. v. OHMEDA, INC., et al.
    No. 2003-1446.
    Court of Appeal of Louisiana, Third Circuit.
    March 31, 2004.
    Rehearing Denied May 26, 2004.

      Vance A. Gibbs and Randal R. Cangelo-si, Kean, Miller, Hawthorne, D’Armond, McCowan & Jarman, L.L.P., Baton Rouge, LA, for Defendant/Appellant: OHMEDA, Inc.
    H. Alston Johnson, III and Jane H. Barney, Phelps, Dunbar, LLP, Baton Rouge, LA, Harry T. Lemmon, New Orleans, LA, for Defendant/Appellant: OHMEDA, Inc.
    Randy P. Angelle, Bernard & Angelle, Lawrence K. Burleigh, Sr. and Lawrence K. Burleigh, Jr., Lawrence K. Burleigh, Ltd., Lafayette, LA, for Secondary Plaintiffs/Appellants: Celia Ann Marks, et al.
    S. Gary McGoffin and Daniel C. Palmin-tier, Durio, McGoffin, Stagg & Ackermann, Lafayette, LA, for Defendant/Appellee: Doctors’ Hospital of Opelousas, L.P.
    William E. Bourgeois, Bourgeois & Bourgeois, L.L.C., Monroe, LA, for Defendant/Appellee: The Estate of Jamie Gibson, CRNA.
    Court composed of GLENN B. GREMILLION, BILLY HOWARD EZELL, and ARTHUR J. PLANCHARD, Judges.

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

   PLANCHARD, Judge.

Defendant, OHMEDA, Inc., appeals a judgment of the trial court finding it solely responsible for the damages sustained by Plaintiff, Celia Ann Marks, and awarding her a total of $9,365,602.00, and awarding her daughter, Colleen Marks, $350,000.00, for her loss of consortium, both amounts plus legal interest from the date of judicial demand until paid. Plaintiffs also appeal praying that, in the event this court finds OHMEDA provided adequate warnings to Defendants, Doctors Hospital of Opelou-sas, LP and James D. Gibson, CRNA, that judgment be rendered against those parties. We affirm the judgment of the trial court.

FACTS

We adopt the facts as recited by the learned trial judge in his written Reasons For Judgment:

Celia Marks was 35 years old at the time of surgery and had worked as a care-giver in nursing homes. In 1996, she was unemployed, but she was the primary care-giver to her father, daughter, and mother. Ms. Marks has a daughter, Colleen, who was five years old at the time of her mother’s surgery.
Celia Marks reported to Doctors’ Hospital of Opelousas (“Doctors’ Hospital”) on October 10, 1997, for an abdominal hysterectomy. She underwent a preoperative physical. Her blood pressure was normal, and she had no family history of strokes. Her risk level was considered to be a Type III, which was due to her being overweight. Celia passed her physical and was accepted by Doctors’ Hospital for surgery. Celia’s surgery was the first surgery of the day in Operating Room V. Dr. John Ferrazzano performed an abdominal hysterectomy under general anesthesia. Celia was under anesthesia for approximately two and one-half hours. The anesthesia used during Ms. Marks’ surgery was Isoflurane, and the carbon dioxide ab: sorbent was Sodasorb. The anesthesiologist for the surgery was Dr. Daniel Baker, and Jamie Gibson was the certified registered nurse anesthetist. The anesthesia machine used in the surgery, the Modulus II Plus Anesthesia System, as well as the anesthetic, was manufactured by Ohmeda, Inc. (“Ohmeda”).
After surgery, Celia was transported to the recovery room and was taken off of oxygen at about 6:30 P.M. Ms. Marks was then only responding to rigid stimuli, had difficulty getting out of bed, and was unable to walk. CAT scans performed on October 13, 1997, at Doctors’ Hospital and October 29, 1997, at Lafayette General Medical Center showed that Celia suffered subacute hemorrhagic infarct bilaterally involving the basal ganglia of the brain.
The injury to Celia’s brain has caused her' severe disabling injuries which are permanent in nature. She now has slurred speech that is characterized by uncontrollable stuttering. Ms. Marks is unable to walk independently, unable to drive, and unable to properly care for herself or her daughter, Colleen. Celia Marks has experienced cognitive losses and also suffers from numerous psychological problems.
On October 8, 1998, the plaintiffs filed suit against Ohmeda, Inc., under the Louisiana Products Liability Act, and Doctors’ Hospital and the Estate of Jamie Gibson, under the Louisiana Medical Malpractice Act.
All defendants deny responsibility in the case arguing that the plaintiffs problems are a result of a stroke while the plaintiff urges that she is a victim of carbon monoxide poisoning caused by a malfunction of the machine.

The case was tried to the trial judge over six days. Numerous witnesses, both professional and lay, testified for both the Plaintiffs and the Defense. In addition fifteen volumes of exhibits were introduced into evidence. At the close of Plaintiffs’ case, all Defendants made motions for involuntary dismissal. After hearing extensive argument on the motions, the trial judge refused to rule on the motions, citing La.Code Civ.P. art. 1672(B) (emphasis ours), which states:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of .his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

When a motion for involuntary dismissal is made under article 1672, the court must grant the dismissal if it finds that the plaintiff has not established his/her case by a preponderance of the evidence. Bradley v. Hunter, 413 So.2d 674 (La.App. 3 Cir.), writ denied, 415 So.2d 952 (La.1982). See also Thornton ex rel. Laneco Const. Systems, Inc. v. Lanehart, 97-2871 (La.App. 1 Cir. 12/28/98), 723 So.2d 1127, writ denied, 99-177 (La.3/19/99), 740 So.2d 115. Hence, since the trial judge refused to rule on Defendants’ motions, we must conclude that the trial judge believed that Plaintiff had established her case by a preponderance of the evidence.

LAW AND DISCUSSION

The law applicable to this case was recently reviewed by this court in Broussard v. Premiere, Inc., 03-668, p. 4 (La.App. 3 Cir. 12/10/03), 861 So.2d 734, 736-37:

This appeal turns on factual determinations of the trial judge. Recently, in Cenac v. Public Access Water Rights Assn., 02-2660, pp. 9-10 (La.6/27/03), 851 So.2d 1006, 1023, our supreme court reviewed the law applicable to the appellate review of cases involving factual determinations at the trial level:
In civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard which precludes the setting aside of a trial court’s finding of fact unless those findings are clearly wrong in light of the record reviewed in its entirety. Rosell v. ESCO, 549 So.2d 840 (La.1989). A reviewing court may not merely decide if it would have found the facts of the case differently, the reviewing court should affirm the trial court where the trial court judgment is not clearly wrong or manifestly erroneous. Ambrose v. New Orleans Police Department Ambulance Service, 93-3099, 93-3110, 93-3112, p. 8 (La.7/5/94), 639 So.2d 216, 221.

In the case sub judice, Plaintiffs base their action against Defendant upon La. R.S. 9:2800.57, which states in pertinent part:

A. A product is unreasonably dangerous because an adequate warning about the product has not been provided if, at the time the product left its manufacturer’s control, the product possessed a characteristic that may cause damage and the manufacturer failed to use reasonable care to provide an adequate warning of such characteristic and its danger to users and handlers of the product.
C. A manufacturer of a product who, after the product has left his control, acquires knowledge of a characteristic of the product that may cause damage and the danger of such characteristic, or who would have acquired such knowledge had he acted as a reasonably prudent manufacturer, is liable for damage caused by his subsequent failure to use reasonable care to provide an adequate warning of such characteristic and its danger to users and handlers of the product.

In Goodrich v. Caterpillar, Inc., 30,762, pp. 3-4 (La.App. 2 Cir. 8/19/98), 717 So.2d 1285, 1237, our brethren of the second circuit stated the following:

Liability for fault is subject to a duty-risk analysis, which consists of the following four-prong inquiry:
(1) Was the conduct in question a substantial factor in bringing about the harm to the plaintiff, i.e., was it a cause-in-fact of the harm which occurred?
(2) Did the defendant owe a duty to the plaintiff?
(3) Was the duty breached?
(4) Was the risk, and harm caused, within the scope of protection afforded by the duty breached?
See Mart v. Hill, 505 So.2d 1120 (La.1987); Roberts v. Benoit, 605 So.2d 1032 (La.1991).
In determining whether there is a duty-risk relationship, the proper inquiry is how easily the risk of injury to plaintiff can be associated with the duty sought to be enforced. Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Roberts v. Benoit, supra. Restated, the ease of association inquiry is simply: “How easily does one associate the plaintiffs complained-of harm with the defendant’s conduct? ... Although ease of association encompasses the idea of foreseeability, it is not based on foreseeability alone.” Roberts v. Benoit, supra. Absent an ease of association between the duty breached and the damages sustained, legal fault is lacking. Roberts v. Benoit, supra.
The question of whether a duty exists in a particular set of circumstances is a question of law for the court to decide. Mathieu v. Imperial Toy Corporation, 94-0952 (La.11/30/94), 646 So.2d 318; Osborne v. Vulcan Foundry, Inc., 95-2766 (La.App. 4th Cir.5/29/96), 675 So.2d 837. The scope of the duty inquiry is ultimately a question of policy as to whether the particular risk falls within the scope of the duty. Rules of conduct are designed to protect some persons under some circumstances against some risks. Osborne, supra.

As to the liability portion of the case, Defendant/Appellant argues that Plaintiffs failed to prove their case and alternatively that, even if Plaintiffs met their burden, the trial judge erred in failing to allocate some portion of fault to Ms. Marks’ anesthesiologist and/or her nurse anesthetist.

Our examination of the record reveals that the following facts are uncontested:

1. Defendant, OHMEDA, is the manufacturer of both the anesthesia machine, a Modulus II Plus Anesthesia System, and the anesthetic agent, Isoflurane, used during Ms. Marks’ surgery.
2. Under certain conditions, the machine and anesthetic combination can produce carbon monoxide during anesthesia.
3. OHMEDA knew of this fact and failed to place a warning sticker on the anesthesia machine or in the machine’s operating manual.
4. OHMEDA did revise its product information leaflet for Isoflurane before Ms. Marks’ surgery, but it did nothing to notify the users of the anesthetic that it had added a carbon monoxide warning in the leaflet’s “Precautions” section.
5. Carbon monoxide poisoning during anesthesia is not a common event.

Our first inquiry is: what does the record show was the cause of Plaintiffs bilateral basal ganglia lesions? In his reasons for judgment, the trial judge stated the following:

Thus as the court appreciates this case in order to determine whether or not there is liability on the part of any defendant’s the court must first answer the question of whether the plaintiffs injuries and disability stem from a stroke or carbon monoxide poisoning. In addressing the issue, the court is not unmindful of the many witnesses who testified on behalf of all parties nor is the court unmindful of the many days in court that were spent on their testimony. However, after all of that is considered the court was more impressed with the testimony of the plaintiffs’ medical experts than those of the defendant’s. The court was particularly impressed with the testimony of Dr. Steven Rees (in court) and Dr. Paul Harch (by deposition). Their testimony was straight forward and unequivocal but, most of all, it was believable. Accordingly, it is the opinion of the court that the evidence supports a finding that Celia Marks’ injuries and disability are attributed to carbon monoxide poisoning and not to a stroke.

Dr. Steven J. Snatic, a neurologist, testified that tests showed that Ms. Marks did not suffer a stroke inasmuch as a SPECT scan demonstrated there was no evidence of blocked blood vessels or lack of blood flow to the area of the lesions. He stated that, in his mind, carbon monoxide poisoning was the cause of Ms. Marks’ lesions; that there were no other more likely explanations. In a letter to Plaintiffs’ counsel, Dr. Snatic stated: “I feel it is more likely than not that Celia Marks suffered carbon monoxide poisoning as a result of anesthesia back in the Fall of 1997.”

Near the beginning of his deposition, Dr. Paul Harch, who is board certified in bot emergency and hyperbaric medicine, stated the following: “I have an opinion about this patient [Ms. Marks] and what happened to her, and I believe she was exposed to carbon monoxide and that is responsible for her pathology ... I think it’s probable that she was exposed through the anesthesia route.” Later in the deposition he reiterated as follows:

My basic opinion is that Celia Marks experienced an intraoperative carbon monoxide exposure that primarily injured her basal ganglia, and possibly other areas in the brain, and that this became in the postoperative period between about 6 p.m. and 10 p.m.
The main support for this is the characteristic lesions seen on her CT and MRIs and the relative absence of any other explanation for this and any other documentation in the medical literature of the production |7of this type of lesion that evidence can be found, in her case to account for it.

Dr. Harch then went on to list other possible causes of bi-lateral basal ganglia lesions and explain why each was not applicable in Ms. Marks’ case. The testimony of Drs. Snatic and Harch was supported by the testimony of Dr. Steven Rees, a specialist in physical and rehabilitation medicine, who treated Plaintiff after her operation. Dr. Rees stated that Plaintiffs lesions were consistent with carbon monoxide poisoning. Additionally, Dr. Carlos R. Gorbitz, a neurosurgeon, who testified via video deposition because he was retiring to Spain, fully supported Dr. Harch’s opinion.

The trial court not only found that Plaintiffs injury was caused by carbon monoxide poisoning, but also, that the source of the carbon monoxide was the OHMEDA machine and anesthetic:

This next brings us to the question as to where the carbon monoxide poisoning come from. We know that Ms. Marks was not suffering from carbon monoxide poisoning when she came into the hospital and we know that once she was in her private room after surgery she eventually had the classic symptoms of carbon monoxide poisoning. There was no evidence that she was poisoned in her pre-opt room, no-evidence she was poisoned in the recovery room, no evidence of poisoning in her post-opt private room. Accordingly, she could only have been poisoned in the operating room. Next, the evidence is clear that in the operating room the only source of carbon monoxide poisoning comes from an improper mixture of the anesthesia, Iso-flurane, and the filtering/absorbent agent, Sodasorb.

That conclusion is also supported by the testimony of Drs. Snatic, Harch, Rees and Gorbitz as noted above.

Defendant attempted to show that there were other possible causes of Plaintiffs lesions. Their primary suspect was stroke. Defendant called a number of witnesses who testified that because of Ms. Marks’ sex and weight, and because of some medications she was taking, she was more susceptible to stroke than others her age. The Defense also put on testimony that it was possible for Ms. Marks to have sustained injury because of insufficient oxygenation of her blood due to a combination of her weight (which would cause shallow breathing in a supine position) and the discontinuance of oxygen the evening after her operation." The Defense also pointed out that production of carbon monoxide during anesthesia, using its machine and anesthetic is a rare event.

It is well settled that where there is a conflict in the testimony, the trial court’s reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review even if the appellate court may feel that its own evaluations and inferences are as reasonable. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967 (La.1985). In the case sub judice, we are faced with just such a situation — Plaintiff put on evidence which supports the trial judge’s findings, while the Defendant’s witnesses argued an alternate theory. Under the well established rules of appellate review, we cannot say the trial court’s findings on the two issues of causation, what caused Plaintiffs injury (the carbon monoxide) and how it entered Plaintiffs blood, are clearly wrong or manifestly erroneous.

Having found the trial judge did not err in concluding that Ms. Marks’ injury was caused by carbon monoxide introduced into her system during anesthesia, we now turn to a duty-risk analysis of the case to determine if Defendant is legally liable for Plaintiffs’ damages.

Louisiana Revised Statute 9:2800.57(0 clearly establishes a duty upon a manufacturer “to use reasonable care to provide an adequate warning of such characteristic [i.e., one that may cause danger] and its danger to users and handlers |9of the product.” The evidence clearly shows that OHMEDA breached this duty. It took no direct action to notify the users of its Modulus machines of the potential of generating carbon monoxide during anesthesia. OHMEDA argues that articles which appeared in trade publications were sufficient to warn the medical community. We find this is not sufficient; the duty established by La.R.S. 9:2800.57(0) is a duty placed directly upon the manufacturer. It cannot be delegated. OHMEDA’S argument that its warning to “Verify canister, seal with level in full Lock position and insure adequate capacity of Soda Lime” warned of the possible danger encountered by Plaintiff. We find this argument without merit. The evidence established that the only capacity of the soda lime that could be determined by simple inspection was the capacity of the soda lime to absorb carbon dioxide. The soda lime was impregnated with a chemical which changed color as the soda lime’s ability to absorb carbon dioxide was diminished. The was no indicator by which its ability to absorb carbon monoxide could be detected.

Did OHMEDA’s duty extend to this Plaintiff? Without a doubt. OHME-DA knew the machine was going to be used to provide anesthesia to patients undergoing surgical procedures. This is what the machine was designed to do. OHMEDA had a duty to each patient to insure that the machine provided anesthesia in a safe manner, and, when it discovered the possibility that the machine could generate carbon monoxide while providing anesthesia, it had a duty to warn the users of its machines of this dangerous characteristic so that patients could be protected from possible harm.

We agree with the trial judge’s findings that OHMEDA’s failure to warn of the dangerous characteristic of its machine was the direct cause of Plaintiffs injuries and that the risk and harm caused was well within the scope of the duty breached. We find no error on the part of the trial judge regarding these conclusions.

OHMEDA argues that the trial judge erred in not assessing any fault to Ms. Marks’ anesthesiologist, her nurse anesthetist, or any hospital employee. Last year, this court reviewed the principles applicable to the appellate review of the apportionment of fault in Cleland v. City of Lake Charles, 02-805, p. 14 (La.App. 3 Cir. 3/5/03), 840 So.2d 686, 696, writs denied, 03-1380, 03-1385 (La.9/19/03), 853 So.2d 644, 645, wherein we stated:

Apportionment of fault is a question of fact, subject to the manifest error/clearly wrong standard of review. Sims v. State Farm Auto Ins. Co., 98-1613 (La.3/2/99); 731 So.2d 197. In reviewing allocation of fault, the Louisiana Supreme Court in Clement v. Frey, 95-1119, p. 7 (La. 1/16/96); 666 So.2d 607, 610-11, explained, “there is an analogy between excessive or inadequate quantum determinations and excessive or inadequate fault percentage determinations. In both, the trier of fact, unlike the appellate court has had the benefit of witnessing the entire trial and of reviewing first hand all the evidence.”

OHMEDA failed to warn any of these parties of the dangerous characteristic of its machine. It failed to send a simple letter and warning sticker to either the hospitals or to the medical professionals who used its products. Further, even though company representatives made regular calls to the hospital and the medical professionals, they failed to inform the parties of the possibility that their Modulus machines could generate carbon monoxide during routine anesthesia. Testimony established that the injury to Ms. Marks happened during the administration of anesthesia using an OHMEDA machine and an anesthetic agent manufactured by the same company. We find no evidence that the want of skill by any person caused her injury. We find no error in the trial court’s allocation of fault solely to OHME-DA.

The Defendant also argues it should not be held liable because of the “learned intermediary doctrine.” In Brown v. Glaxo, Inc., 99-1531, pp. 4-5 (La.App. 1 Cir. 11/15/00), 790 So.2d 35, 38-39, writs denied, 00-3457, 01-35 (La.2/09/01), 785 So.2d 827, 832, our brethren of the first circuit explained:

A product may be unreasonably dangerous, and the manufacturer liable, if an inadequate warning proximately caused the damage. Additionally, the damage must arise from a reasonably anticipated use. La. R.S. 9:2800.54 A & B(3); 9:2800.57 A. An adequate warning is one that “would lead an ordinary reasonable user ... to contemplate the danger in” the use of the product. La. R.S. 9:2800.53(9). However, under the “learned intermediary doctrine,” the doctor acts as an informed intermediary between the drug company and the patient. Thus, a drug manufacturer has a duty to warn the prescribing doctor, rather than the patient, of potential risks associated with the use of the drug. This duty is fulfilled when the prescribing doctor is informed of the potential risks from the drug’s reasonably anticipated use so that the physician may intelligently decide on its use with the particular patient. The doctor must then advise the patient accordingly. Mikell v. Hoffman-LaRoche, Inc., 94-0242, pp. 7-8 (La.App. 1 Cir. 12/22/94), 649 So.2d 75, 79-80. If the warning is “accurate, clear, and unambiguous,” then the adequacy of the warning is a question of law. Calhoun v. Hoffman-LaRoche, Inc., 98-2770, p. 6 (La.App. 1 Cir. 2/18/00), 768 So.2d 57, rehearing granted on other grounds, 98-2770 (La.App. 1 Cir. 2/18/00), 768 So.2d 57, writ denied, 00-1223 (La.6/23/00), 765 So.2d 1041. We note that “ ‘Reasonably anticipated use’ “ is defined as “a use or handling of a product that the product’s manufacturer should reasonably expect of an ordinary person in the same or similar circumstances.” La. R.S. 9:2800.53(7).

Defendant’s “learned intermediary” defense fails because OHMEDA did nothing to inform either Plaintiffs anesthesiologist or her nurse anesthetist of the dangerous characteristic of its Modulus machine.

Finally, we turn to OHMEDA’s argument that the damages awarded to Plaintiffs were excessive and that the trial court erred in awarding pre-judgment interest on Plaintiffs future damage award.

We address the latter issue first. Both in brief and at oral argument, Defendant relied heavily on Hall v. Brookshire Brothers, Ltd., 02-2404, 02-2421 (La.6/27/03), 848 So.2d 559, for the proposition that such , an award is “inequitable and even nonsensical.” We find Hall completely inapplicable to the case sub judice. Hall dealt with awards which are limited under the Louisiana Medical Malpractice Act, La. R.S. 40:1299.41 et seq. In Hall the court explained:

The legislature has evinced a clear intent in LSA R.S. 40:1299.42(B)(1) to limit recovery of damages (exclusive of future medical care and related benefits) to $500,000.00 plus interest and costs. The statute does not authorize the recovery of interest on damages in excess of the statutory limit, and consistent with the purpose of the Medical Malpractice Act to lower the costs of health care generally and assure the availability of health care for the public, we decline to read such a requirement into the statute. See, Allen v. State, 535 So.2d 903, 914-915 (La.App. 2 Cir.), writ denied, 536 So.2d 1201 ([La.]1988).

Id. at 575.

The two other cases cited by Defendant also fail to limit interest on awards for future damages. In the first case, Sharkey v. Sterling Drug, Inc., 600 So.2d 701, 718 (La.App. 1 Cir.), writs denied, 605 So.2d 1099, 1100 (La.1992), the court stated:

Sterling argues that the interest on damages for future losses should run from the date of judgment, and assigns error to the trial court’s award of interest on all damages from the date of judicial demand. Although Sterling’s argument is persuasive, and might perhaps be addressed to the legislature, we find no error in the trial court’s judgment. See LSA R.S. 13:4203; Schwamb, 516 So.2d at 467.

And in Schwamb v. Delta Air Lines, Inc., 516 So.2d 452, 467 (La.App. 1 Cir.1987), writs denied, 520 So.2d 750 (La.1988), the case cited in Sharkey, the court observed:

The trial court awarded interest from the date of judicial demand on all damages, even damages awarded for future losses. Delta contends that this was error, and that interest should run on damages for future losses only from the date of judgment.
Although Delta’s argument is persuasive, and should perhaps be addressed to the Legislature, we find no error in the trial court’s award of interest on all damages from the date of judicial demand.

Thus, we dismiss Appellant’s argument that the trial court erred in awarding prejudgment interest on the future damage portion of Plaintiffs award.

We now turn to the quantum of the award. The trial court’s award was mainly based upon an extensive report by Robert Voogt and Associates, Inc., Rehabilitation Consultants, the deposition testimony of Dr. Robert Voogt, a certified rehabilitation counselor, and the trial testimony of Dr. George R. Rice, Professor Emeritus of Economics at Louisiana State University. Plaintiff also presented testimony from a number of other experts. The Defendant’s expert in economics, Dr. Will C. Heath, Associate Professor of Economics at the University of Louisiana, Lafayette, presented testimony which disagreed with Plaintiffs’ experts. Dr. Rice estimated the present value for Plaintiffs’ care plan at $4,326,273.00, while Dr. Heath put that figure at $3,241,4243.00. We note that the testimony of Dr. Heath was not detailed, that he has limited experience in this type of case and that Appellant failed to put on any evidence to counter that offered in Dr. Voogt’s deposition and report.

In his written reasons for judgment, the trial judge stated the following in reference to his award of damages:

At the time of her unfortunate accident Celia Marks was a 35 year old single mother of a five year old daughter, Colleen. Ms. Marks worked the majority of her adult life and prior to surgery enjoyed taking care of her daughter, eating out, cooking, shopping, and managing her father’s financial affairs.
Celia can no longer work, drive, cook, shop, perform housekeeping chores, attend to financial affairs, or provide for herself or her daughter the most basic necessities of life. Due to her injuries, she can no longer walk without assistance and can only communicate with severe dysflueney that is characterized by stuttering. She suffers from psychological effects such as: depression; anger; social isolation; helplessness and role reversal, where Celia is now the child and Colleen is the parent. Dr. William Black found that Celia’s deficits are significant and of a degree so as to impair her ability to function independently. He testified that Celia needed a good life care planner to determine the amount of her future care.
Dr. Steven Rees testified that Celia’s condition would continue to deteriorate and will require support care to meet her personal needs and the needs of her child, Colleen. Dr. Rees stated “Celia is unable to take care of herself and Colleen without assistance.” A life care plan was provided to show the costs of future medical care, therapy, medications, and medical equipment that Ms. Marks will need for the rest of her life. The life expectancy provided for Ms. Marks is based on what the U.S. Government says is the average life expectancy plan for somebody of her age, sex, and race.
Dr. Yoogt testified by deposition that she needs 24 hour care because she is not capable of independent living due to the brain damage that she suffered that is well documented by Dr. Black,' and not because of her physical limitations. Her brain damage shows that she is impaired in all activities of adult brain functioning. It was Dr. Voogt’s opinion that Ms. Marks needs a certified nurse assistant for the same reason that you would not leave a child home alone. She needs this nursing assistant to get her involved in the activities of daily living and allow her to be engaged as she once was and not just someone to turn on the T.V. for her.
The range for a certified nursing assistant is $10.00-15.00 per hour. A sitter would have to be available for Colleen that will run about $8.00 per hour. A sitter would have to be present with Colleen for 8-16 hours a day until she is 18 years of age. The Nurse Assistant will not take responsibility for the child, so that is why Colleen needs an additional person to watch over her well-being.
Dr. Voogt was questioned as to Dr. Black’s assessment of [sic] that Ms. Marks condition might be deteriorating. He mentioned that often times a bench mark of CO poisoning is the deterioration of the patient’s condition. Dr. Voogt stated that he agreed with Dr. Black in that Ms. Marks would not be able to return to independent functioning. Dr. Voogt mentioned that she knows that she is different from the way she was before surgery on. October 10, 1997, when she underwent the surgery at Doctors’ Hospital, but Celia does not have-the cognitive skills to understand why she is now different. The purpose of the life care plan is to improve the quality of Celia Marks’ life.
Dr. Robert Voogt’s testimony as to Celia’s future life care needs was uncon-tradicted. According to Louisiana jurisprudence, where the plaintiffs expert provided uncontradicted testimony regarding a life care plan, his expert opinion should be accepted by the trier of fact. Green v. K-Mart Corporation, 834 So.2d 1084 (La.App. 3 Cir.2002)[writ granted, and judgment set aside because of filing of bankruptcy, 02-3198 (La.4/4/03), 840 So.2d 1209; see also Johnson v. Ins. Co. of No. America, 454 So.2d 1113, 1117 (La.1984)]. Therefore, this court will adopt Dr. Voogt’s entire testimony as being the correct plan to implement to provide attendant care for Ms. Marks and Colleen' for the entirety of Celia’s life and until Colleen reaches the age of majority.
Dr. Randolph Rice provided expert economic testimony on behalf of the plaintiffs. The court was impressed that ,the testimony given by Dr. Rice was accurate and not inflated and will award Celia’s wage-loss claim, the value of past attendant care for Celia and Colleen, as well as the value of Celia and Colleen’s future care pursuant to that testimony.
The court will award $615,450.00 to the plaintiffs for Celia’s past attendant care expenses from the date of the injury to the date of trial and $192,720.00 will be awarded based on the childcare expenses incurred for Colleen from the date of her mother’s injury to the date of trial. Celia’s father, Emery, has been the sole care giver to Ms. Marks and Colleen since the date of the injury. The courts are of the opinion that such care rendered gratuitously does not preclude the injured party from recovering the value, of such services if they prove the need for the services, the reasonableness of the fee, and the extent and duration of the services. Tanner v. Fireman’s Fund Insurance Companies, 589 So.2d 507 (La.App. 1 Cir. 1999[1991]); Bordelon v. Aetna Casualty & Surety, Co., 494 So.2d 1283 (La.App. 2 Cir.1986). Dr. Rice based his testimony regarding Celia and Colleen’s future life care needs and medical expenses on the plan provided by Dr. Voogt. The court is satisfied that their testimony supports an award of $4,326,273.00 for the life care plan, discounted to present value, needed to provide adequate care to Celia and Colleen.
This court finds Celia’s past wages that are due to her to be $44,153. 00 and her future, wages to be $107,860.00. The final amount of special damages that will be granted to the plaintiffs is $79,146.64 that will provide for past medical expenses incurred by Celia Marks.
Celia Marks suffered catastrophic injuries as a result of carbon monoxide poisoning. She will never be able to function in the same capacity as she did before her surgery on October 10, 1997. Due to these injuries Ms. Marks is entitled to an award for past and future pain and suffering, past and future 'mental anguish, permanent physical and mental disability and limitations, and past and future loss of enjoyment of life which totals $4,000,000.00. In a similar case, the Third Circuit Court of Appeals increased a jury award of $280,500.00 to the lowest amount which in its discretion the jury could have reasonably awarded which was $2,000,000.00. The court is of the opinion that Ms. Marks injuries were more severe than the injuries suffered by the plaintiff in the above mentioned case. Johnson v. Kansas City Southern Railroad [Railway Co.], 531 So.2d 773 (La.App. 3 Cir., 1988). In awarding the sum for general damages, hr,this court took notice of the fact that the related case was decided approximately fifteen (15) years ago and that the total awarded was the minimal amount and that a larger award could have been sustained.
Colleen’s relationship with her mother has been permanently damaged due to the extent of Celia’s injuries and she is entitled to an amount of $350,000.00 for her loss of consortium claim.

Recently, in Young v. Fitzpatrick, 03-1038, p. 15 (La.App. 3 Cir. 2/4/04), 865 So.2d 969, this court recounted the standards applicable in reviewing damage awards stating the following:

The standard that an appellate court is to employ in reviewing a lower court’s award of damages is described in the fourth circuit’s decision in Ross v. City of New Orleans, 00-1879 p. 15 (La.App. 4 Cir. 11/21/01), 808 So.2d 751, 761 as follows:
With regard to the award of damages, there must be a showing that the trier of fact abused the great discretion accorded in awarding damages. In effect, the award must be so high or low in proportion to the injury that it “shocks the conscience.” Moore v. Healthcare Elmwood, Inc., 582 So.2d 871 (La.App. 5 Cir.1991). Additionally, in deciding whether a trial court award was excessive, reviewing courts must first consider the individual circumstances of the subject case to determine whether the trial court abused its much discretion in setting the award. Only after determining that the award in the subject case was improper may the reviewing court consider awards in similar cases. Brodtmann v. Duke, 96-0257, p. 21 (La.App. 4 Cir. 2/11/98), 708 So.2d 447, 459-460.
Moreover, in Wainwright v. Fontenot, 00-0492, p. 6 (La.10/17/00), 774 So.2d 70, 74, the supreme court stated that:
[T]he assessment of “quantum,” or the appropriate amount of damages, by a trial judge or jury is a determination of fact, one entitled to great deference on review. As such, “the role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact.” Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993).

Before a trial court’s award of damages can be questioned as excessive, the reviewing court must look to the individual circumstances of the injured parties which stand before the court. The reviewing court should not disturb a damage award absent a showing of a clear abuse of discretion.

In Louisiana, general damages include mental and physical pain and suffering, inconvenience, the loss of intellectual gratification and physical enjoyment, and other losses of lifestyle which cannot be measured exactly in monetary terms.

Our review of the record convinces us that the trial judge thoroughly “consider[ed] the individual circumstances of the subject case” before making his award. While we, or another trier of fact, may have made a different award, we do not find the award so high as to shock our conscience or to be a clear abuse of the vast discretion afforded a trier of fact in making damage awards.

Because of our finding in this matter we have no reason to address the appeal of the Plaintiffs in this matter.

Accordingly, for the reasons stated above, the judgment of the trial court is affirmed. All costs of this appeal are assessed against Defendant, OHMEDA, Inc.

AFFIRMED.

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


author: GREMILLION, Judge.

text:
    Paul THOMAS, Jr. v. BROWNING-FERRIS, INC.
    No. 2003-1518.
    Court of Appeal of Louisiana, Third Circuit.
    March 31, 2004.
    Rehearing Denied May 26, 2004.

      Robert T. Jacques, Jr., Lake Charles, LA, for Plaintiff/Appellee, Paul Thomas, Jr.
    Tobin J. Eason, Weiss & Eason, L.L.P., Michael D. Meyer, New Orleans, LA, for Defendant/Appellant, Browning-Ferris, Inc.
    Court composed of GLENN B. GREMILLION, BILLY HOWARD EZELL, and ARTHUR J. PLANCHARD, Judges.

       Honorable Arthur J. Planchará, Retired, participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   GREMILLION, Judge.

The defendant, Browning-Ferris, Inc. (BFI), appeals the judgment of the workers’ compensation judge finding that the plaintiff, Paul Thomas, suffered a work-related injury from which he is permanently and totally disabled. The judgment further cast BFI with penalties and attorney’s fees as a result of its failure to reasonably controvert Thomas’ claim. For the forgoing reasons, we affirm in part and reverse in part.

FACTS

Thomas, a truck driver for BFI, alleged that he suffered a work-related injury to his lower back on March 23, 1998, while attempting to lift a can-load of trash into the back of his trash truck. He claimed that he reported the injury to his helper and to several other drivers when he returned to BFI’s office in Oberlin at the completion of his shift. However, he did not report the injury to his supervisor since he was not present at the office. Thomas did not work the following day due to back pain, but had his wife call the office and report his injury.

Thomas was initially treated by Dr. Jeffrey Davis, a chiropractor, but was referred to Dr. William Foster, a neurosurgeon, after an April 16, 1998 MRI revealed a large herniated disc at L4-5. He underwent a hemilaminectomy at L4-5 and was diagnosed post-surgery with partial cauda equina syndrome and foot drop on the left. Dr. Foster continued treating Thomas and eventually found him totally disabled as a result of failed back syndrome with severe neurological deficit (foot drop).

Thomas never requested workers’ compensation benefits as a result of this accident. Both he and his wife testified that they were unaware that he was entitled to them. They submitted his medical bills to his wife’s insurance and he exhausted his sick leave, vacation time, and received short and long-term disability benefits through BFI.

On November 13, 2000, Thomas filed a disputed claim for compensation seeking workers’ compensation benefits as a result of his work-related injury of March 23, 1998. In response, BFI filed an answer and a peremptory exception of prescription arguing that his claim for compensation benefits had prescribed. Following a hearing, the workers’ compensation judge denied the exception. Supervisory writs were sought from this court and the Louisiana Supreme Court, but both were denied. See unpublished writ Thomas v. Browning-Ferris, Inc., 01-1561 (La.App. 3 Cir. 1/4/02); and Thomas v. Browning-Ferris, Inc., 02-0236 (La.2/6/02), 808 So.2d 346.

This matter proceeded to a trial on the merits before Workers’ Compensation Judge Constance V. Abraham-Handy. Following the submission of evidence, Judge Abraham-Handy took the matter under advisement. However, before she could render judgment, she passed away. Thereafter, the matter was submitted to Workers’ Compensation Judge Samuel Lowery on the evidence and transcript from the prior hearing. On June 16, 2003, the workers’ compensation judge rendered oral reasons finding that Thomas suffered a work-related injury on March 18, 1998, that he properly reported the accident to his supervisors, he is permanently and totally disabled, and is entitled to indemnity and medical benefits, as well as penalties and attorney’s fees for BFI’s failure to reasonably controvert his claims. This appeal by BFI followed.

ISSUES

On appeal, BFI raises four assignments of error. It argues that the trial court erred in finding that Thomas suffered a work-related injury, that his claim had not prescribed, that he was permanently and totally disabled, and for assessing it with penalties and attorney’s fees. Thomas answered this appeal requesting additional attorney’s fees for work performed on appeal.

PRESCRIPTION

At the outset, we will address BFI’s argument that the workers’ compensation judge erred in finding that Thomas’ claim had not prescribed pursuant to La. R.S. 23:1209.

BFI’s exception of prescription was addressed by both this court and the supreme court via writ applications. Both courts determined that the workers’ compensation judge did not err in denying the exception. Thus, these rulings are the “law of the case” on BFI’s exception. Although the application of the “law of the case” doctrine is discretionary, it will not be applied if it will “accomplish an obvious injustice or where the former appellate decision was manifestly erroneous.” Dodson v. Comm. Blood Ctr. of La., Inc., 633 So.2d 252, 255 (La.App. 1 Cir.1993), writs denied, 93-3158, 93-3174 (La.3/18/94), 634 So.2d 850, 851. In this instance, we do not find that application of the doctrine will result in an obvious injustice, nor do we find manifest error in the previous appellate decisions. Accordingly, we decline to revisit this issue and will not address the merits of the exception.

WORK-RELATED ACCIDENT

In its second assignment of error, BFI argues that the workers’ compensation judge erred in finding that Thomas experienced an accident during the course and scope of his employment.

In order to receive workers’ compensation benefits, a worker must first establish, by a preponderance of the evidence, “personal injury by accident arising out of and in course of his employment.” La.R.S. 23:1031(A). As stated in Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992):

A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13 Louisiana Civil Law Treatise, Workers’ Compensation, § 253 (2d Ed.1980). Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends. Malone & Johnson, supra; Nelson[ v. Roadway Express, Inc.], supra[, 588 So.2d 350 (La.1991)]. Corroboration may also be provided by medical evidence. West[ v. Bayou Vista Manor, Inc.], supra[, 371 So.2d 1146 (La.1979)].
In determining whether the worker has discharged his or her burden of proof, the trial court should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent “circumstances casting suspicion on the reliability of this testimony.” West, 371 So.2d at 1147; Holiday v. Borden Chemical, 508 So.2d 1381, 1383 (La.1987). The trial court’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error. Gonzales v. Babco Farms[Farm], Inc., 535 So.2d 822, 824 (La.App. 2d Cir.), writ denied, 536 So.2d 1200 (La.1988) (collecting cases). Indeed, the manifest error/clearly wrong standard of appellate review applies in compensation actions even when the trial court’s decision is based solely upon written reports, records or depositions. Virgil v. American Guarantee and Liability Insurance Co., 507 So.2d 825 (La.1987).

In finding that Thomas suffered a work-related accident, the workers’ compensation judge stated:

This is a particularly difficult matter to decide because it involves essentially an evaluation of the credibility of the witnesses, especially the claimant. Clearly, there’s no better way of doing this than by observing live testimony, which gives the court an opportunity to measure and gauge the demeanor of the witnesses; but we don’t have live testimony. However, both counsel were so thorough and precise in their deposing of these witnesses that a careful reading of these depositions I found to be very instructive. It is clear to me, having read this, that on or about March the 18th, 1998 Paul Thomas sustained a work accident during the course and scope of his employment while helping load or unload a garbage truck for his employer. His version of the incident is simply more credible and believable than the version offered by B.F.I.
During the course of the — one moment here. It is clear that the work accident of Paul Thomas was properly reported and that an investigation ensued. During the course of the investigation, it was alleged that Mr. Thomas was injured away from the workplace; however, I could find no evidence to this effect to support the denial of Mr. Thomas’ workers’ compensation benefits.

A review of the record reveals that the workers’ compensation judge was presented with two differing views of the evidence concerning whether Thomas suffered a work-related injury. Thomas, his wife, and his mother all testified that he injured himself at work while loading trash onto his truck. Thomas and his wife, Diane, both testified that the accident was reported to BFI pursuant to company policy. Thomas stated that he told his helper, Robert Ballard, about his injury as soon as it occurred and told other drivers when he returned to BFI’s office in Oberlin, at the end of his shift. He did not tell his supervisor, Tommy Skully, because he was not present.

Diane testified that she came in from work on March 23, 1998, and found Thomas lying on the floor. When she questioned him, she stated that he told her that he hurt his back at work. Diane testified that she called the Oberlin office, the next day at 3:30 a.m., when Thomas’ shift started, and told a driver that he would not be working due to back pain. She stated that she did not speak to his supervisor because he did not arrive at work until 8:00 or 9:00 a.m. Both Thomas and Diane testified that BFI never asked Thomas to fill out an accident report or said anything about him receiving workers’ compensation benefits. Both stated that they were unaware that he was entitled to such benefits. They further stated that they were told by Skully that BFI would take care of Thomas. Thomas stated that he went along with this because Skully was the boss.

BFI claimed that Thomas did not suffer a work-related injury on March 23, 1998. In support of its claim, it introduced the deposition of Lenda Kirkland, BFI’s safety and health manager at the time of Thomas’ alleged accident. Kirkland investigated the claim on Thursday, March 26, 1998, after receiving a call the day before that Thomas suffered a work-related injury and wished to receive workers’ compensation benefits. After interviewing the drivers, helpers, and mechanic on duty, she determined that Thomas hurt his back over the weekend while working on a lawnmower. She further testified that she based her determination that he did not suffer a work-related accident on the fact that he did not report the accident, he was not injured at work, and the accident was un-witnessed. However, Diane testified that she was unaware that Thomas hurt his back while fixing a lawn mower, nor could she recall his cutting grass in March.

Kirkland and Jeff Jones, BFI’s facility manager, who oversees the Oberlin area, testified that BFI’s policy requires an employee to immediately report an accident to his supervisor or before leaving work that day. Both stated that the failure to do so could result in termination or a denial of the claim. They further testified that BFI had recently passed out new company policy packets, which included this information, and that Thomas signed his packet showing that he received the information. Both testified that Thomas had attended safety meetings where the need to report work-related accidents was discussed.

Kirkland further testified that she called the Thomases’ residence between 2:30 and 3:00 p.m., on March 26, 1998, and spoke to Diane because Thomas was unable to come to the phone. She stated that she told her that Thomas did not qualify for workers’ compensation, but that he might qualify for short-term disability. However, Diane denied speaking to Kirkland. She testified that she was at work at the Grand Casino Coushatta, where she is not allowed to take personal calls. Her affidavit was introduced into the record, which contained her time sheet showing that she worked from 7:47 a.m. until 5:25 p.m. on March 26, 1998.

BFI further relies on Dr. Davis’ medical records of March 24, 1998, which reports the etiology of Thomas’ complaints as being unknown. It further states that the onset of his pain began the week before, and that the pain was worse that day. Thomas denied injuring his back a week prior to March 24, 1998. He further testified that he told Dr. Davis that he injured his back while working. He stated that he was seen immediately by Dr. Davis upon arriving at his office and that his nurse filled out this document while Dr. Davis began treatment. All other medical records of Thomas’ treating physicians are consistent with Thomas’ version, that he hurt his back lifting a can of trash while working for BFI.

BFI also relies on Thomas’ October 1998 long-term disability application. The form asks whether the employee’s illness or injury is related to his occupation. The box labeled “No” is checked on Thomas’ form. However, Thomas testified that, although he signed the form, he did not fill it out, rather, he thought Diane had done so. He stated that she handles these types of matters for him since he does not read or write very well. Diane testified that she did not fill out this form. Jones testified that the form could have been partially filled out by an employee at BFI’s Sulphur office, prior to Thomas signing it.

In reaching his decision, the workers’ compensation judge found Thomas’ version of how he injured his back more credible than that offered by BFI. Since this finding was based on a decision to credit Thomas’ testimony over that of BFI, the workers’ compensation judge’s finding is entitled to great deference on appeal. Rosell v. ESCO, 549 So.2d 840 (La.1989). After reviewing the record in its entirety, we cannot say that this finding is unreasonable. Although there were inconsistencies in Thomas’ version, there were also inconsistencies in that provided by BFI. Thus, we will not disturb the finding that Thomas suffered a work-related injury. This assignment of error is dismissed as being without merit.

DISABILITY

In its third assignment of error, BFI argues that the trial court erred in finding that Thomas was permanently and totally disabled.

Pursuant to La.R.S. 23:1221(2)(c), an employee, who is neither employed or self-employed, shall receive compensation for permanent and total disability if he proves:

[B]y clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.

The standard of review applied to disability issues was laid out by this court in K-Mart v. Turner, 01-0315, pp. 3-4 (La.App. 3 Cir. 10/3/01), 799 So.2d 594, 596, writ denied, 01-2973 (La.1/25/02), 807 So.2d 842 (alteration in original).

The issue of disability is a factual determination. Fritz v. Home Furniture-Lafayette, 95-1705 (La.App. 3 Cir. 7/24/96); 677 So.2d 1132, 1134; Creel v. Concordia Electric Cooperative, Inc., 95-914 (La.App. 3 Cir. 1/31/96); 670 So.2d 406; writ denied, 96-0577 (La.4/19/96); 671 So.2d 923. Factual findings of a hearing officer may not be disturbed by an appellate court unless the factual findings are manifestly erroneous or clearly wrong. Fritz v. Home Furniture-Lafayette, 677 So.2d at 1134; Comeaux v. Sam Broussard Trucking, 94-1631 (La.App. 3 Cir. 5/31/95); 657 So.2d 449. In order for an appellate court to set aside a hearing officer’s factual finding, the appellate court must conclude from the record, viewed in its entirety, that a reasonable factual basis did not exist for the hearing officer’s finding and that this finding is clearly wrong. Guidry v. Picadilly Cafeterias, Inc., 95-12 (La.App. 3 Cir. 5/24/95); 657 So.2d 325, writ denied, 95-1601 (La.9/29/95); 660 So.2d 870.
Further, in determining the issues presented on appeal, this court is cognizant of the principals established in Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52 (La.1993). In Pinkins, the supreme court stated, “[i]t is well established that this state has long recognized the workers’ compensation act is remedial in nature. In order to effectuate the humane policies it reflects, the law is to be liberally construed in favor of the injured employee.” Id. at 55.

In K-Mart, we further stated that the disability must be permanent in order for the employee to receive permanent total disability benefits; such benefits will be denied if the treating physician does not rule out “future improvements or recovery.” Id. at 597.

Thomas has mainly been treated by Dr. Foster, who, as of July 25, 2000, diagnosed him as suffering from chronic adhesive arachnoiditis with failed back syndrome, along with residual neurological deficit including foot drop. Dr. Foster noted that Thomas had reached maximum medical improvement as of that date and that he was totally disabled. He noted that Thomas was seeing Dr. Kevin Gorin, a physiatrist, for treatment of chronic pain. He further felt that Thomas was unable to return to gainful employment due to his frequent need of pain medication and the significant aggravation of his pain caused by minimal activities such as sitting, standing, and driving. Dr. Foster further noted that Thomas had suffered no intervening injury since his work-related accident. In his notes, he suggests that Thomas seek medical retirement and attempt to obtain Social Security disability benefits. He further noted that Thomas was a good candidate for a stroke or heart attack due to his high blood pressure.

Dr. Dale Bernauer, an orthopedic surgeon, performed a disability examination of Thomas on December 22, 1999. In his report, he noted that Thomas had undergone an extruded disc from which he suffered permanent nerve damage. He determined that Thomas should not lift greater than ten to twenty pounds and that he should not stoop, crawl, or climb on a repetitive basis. He reexamined Thomas on February 25, 2002. At that time, he determined that he was suffering from severe arachnoiditis in his back. He opined that Thomas was disabled from any type of gainful activity and noted that he had scheduled an EMG and MRI for further evaluation.

Dr. Gorin’s records include a September 17, 1998 letter to Dr. Foster. In his report, he states:

The patient has been seen in this office on three occasions, including July 1, 1998; August 1, 1998; and September 17, 1998. He has completed approximately 8 weeks of physical therapy. He is currently pain-free and is no longer utilizing AFO. His left leg strength has improved, and he is still having some weakness and limited endurance, but is now functioning independent. The patient has not decided if he will return to gainful employment or take medical retirement.

Dr. Gorin recommended that Thomas begin a daily home exercise program and that an FCE and work conditioning program would be prescribed should he request a return to work. This is the only report contained in Dr. Gorin’s records. The record contains no current indications of Thomas’ condition at the time Dr. Foster found he had reached maximum medical improvement, on July 25, 2000.

Thomas testified that he is unable to do many activities as a result of his work— related injury. He said that he is unable to walk, sit, stand, or drive for long periods of time, and that he is unable to lift, climb, stoop, or bend. He stated that is able to drive for up to forty-five minutes to an hour, but then has to stop because his left leg becomes numb and weak and his back starts hurting. He further stated that he does the exercises recommended by his doctor and that he walks some at home. Thomas testified that he has a twelfth grade education, but that he does not read or write very well. At the time of the workers’ compensation judge’s ruling, he was fifty-three years old. He also suffers from high blood pressure. An FCE was attempted on November 27, 2001, but was abandoned due to his high blood pressure.

Diane testified that Thomas drags his left leg as a result of his foot drop and that he is unable to drive long distances, sit through movies, help around the house, do yard work, or change the oil in her car. She further stated that, since his accident, he usually watches television, visits with family and neighbors across the street, and drives his truck to the store around the corner. She also testified that she sometimes has to help him out of bed or out of chairs because of the weakness in his leg.

In support of its argument that Thomas is not permanently and totally disabled, BFI introduced the deposition of Dr. Glenn Anderson, a neurosurgeon. Dr. Anderson examined Thomas for approximately a half hour on December 3, 2001. After reviewing his medical records and performing a neurological evaluation, Dr. Anderson determined that Thomas was not permanently and totally disabled, but was capable of performing light duty/sedentary work. He stated that Thomas waddled when walking, with an exaggerated side to side motion in his upper torso, and that he favored both legs, but greater on the left. He found this gait unusual based on Thomas’ symptoms. Dr. Anderson determined that Thomas did not have a complete foot drop on the left, and noted that he did not catch his left foot on the carpet; that he was able to walk and lift his left foot quite freely when leaving the examining room.

Dr. Anderson testified that Thomas was limited in all ranges of motion, flexion, extension, rotation, and lateral flexion and extension, secondary to complaints of twinging pains in his back. He stated that Thomas’ reflexes were depressed or diminished in his lower extremities, that the strength in his legs was normal except for dorsiflexion of his left ankle, which he put as four out of five. He stated that testing for nerve root irritation was normal, as was the sensory exam of his lower extremities.

Dr. Anderson further testified that he found inconsistencies in Dr. Foster’s reports. On February 17, 1999, Dr. Foster stated that Thomas was unable to return to truck driving or sedentary work. On March 23, 1999, he found Thomas disabled from performing any activities other than sedentary work, but on July 25, 2000, he stated that Thomas was totally disabled. Based on his examination, Dr. Anderson stated that he found Dr. Foster’s finding, that Thomas was totally disabled, unusual. He stated that Thomas complained of intermittent pain in his back, but that he was not taking any pain medication at that time. This, he stated brought into question the severity of his pain. He further stated that he found Thomas able to move from his chair to the examining table, and then back to the chair, without significant impairment.

Howard Rowzie, a licensed rehabilitation counselor, attempted to perform an FCE on Thomas on November 27, 2001. However, the evaluation was not completed due to Thomas’ high blood pressure during testing, which led to a spell of dizziness. During his interview, Rowzie testified that Thomas said that he could lift and carry-five to ten pounds, sit for about thirty minutes, stand between thirty to forty-five minutes, and walk approximately 100 yards on level ground. He stated that Thomas exhibited some pain behavior during his interview, but stated that this behavior had become markedly worse from his observation of Thomas during the workers’ compensation hearing. Although he felt that Thomas could be employed, he admitted that he did not have a good comprehension of what he could or could not do, either from his treating physicians, physical therapist, or from the F.C.E.

After reviewing the record, we find that a reasonable factual basis exists for the workers’ compensation judge’s finding that Thomas is permanently and totally disabled. The workers’ compensation judge was presented with clear and convincing evidence that Thomas is totally disabled from performing any employment. The only evidence countering this finding is the deposition of Dr. Anderson, who evaluated Thomas on one occasion for approximately thirty minutes, and from Rowzie, who admitted to not knowing Thomas’s functional capacity based on the failed F.C.E. However, we do not find this evidence of a sufficient nature for us to find that the workers’ compensation judge’s determination was either manifestly erroneous or clearly wrong. Accordingly, the judgment of the workers’ compensation judge is affirmed; this assignment of error is dismissed.

PENALTIES AND ATTORNEY’S FEES

In its final assignment of error, BFI argues that the workers’ compensation judge erred in assessing it with penalties and attorney’s fees for its failure to reasonably controvert Thomas’ claim.

Louisiana Revised Statute 23:1201(F) provides that penalties and attorney’s fees will be assessed against an employer who fails to timely provide compensation benefits or medical benefits to the injured employee. However, penalties and attorney’s fees will not be assessed if the employer reasonably controverted the injured employer’s claim or if the “nonpayment results from conditions over which the employer or insurer had no control.” La.R.S. 23:1201(F)(2). In Brown v. Texas La Cartage, Inc., 98-1063, p. 9 (La.12/1/98), 721 So.2d 885, 890, the supreme court examined the term “reasonably controverted”:

The phrase “reasonably controverted,” on the other hand, mandates a different standard. In general, one can surmise from the plain meaning of the words making up the phrase “reasonably controvert” that in order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base his denial of benefits. Thus, to determine whether the claimant’s right has been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under La. R.S. 23:1201, a court must ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed.

Furthermore, the decision to award penalties and attorney’s fees is a finding of fact subject to the manifest error standard of review. Id.

After reviewing the record, we find that the workers’ compensation judge erred in assessing BFI with penalties and attorney’s fees. Kirkland testified that she determined Thomas did not suffer a work-related accident after conducting an investigation into the matter. She stated that she received the call concerning his claim on the Wednesday after the alleged accident occurred and that she went to Oberlin the next day to conduct an investigation. She stated that she interviewed the other drivers, helpers, and the mechanic on duty in order to learn whether Thomas reported his accident to any of them on the day that it occurred. From these interviews, Kirkland testified that she learned that no one was injured at work on the date in question and that Thomas had injured his back over the weekend while working on his riding lawnmower. She stated that she then determined that a work-related accident had not occurred based on the fact that Thomas was not injured at work, the accident was unwitnessed, and he failed to report the accident the day it occurred.

Based on the foregoing, we find that BFI did have valid factual information for denying Thomas’ claim. Accordingly, we find that the workers’ compensation judge erred in finding that it failed to reasonably controvert his claim. His judgment assessing BFI with penalties and attorney’s fees is reversed. Based on this finding, we need not address Thomas’ answer to appeal requesting additional attorney’s fees for work performed on appeal.

CONCLUSION

For the foregoing reasons, the judgment of the workers’ compensation judge assessing Browning-Ferris, Inc. with penalties and attorney’s fees is reversed. The costs of this appeal are assessed twenty-five percent to the plaintiff-appellee, Paul Thomas, Jr., and seventy-five percent to defendant-appellant, Browning-Ferris, Inc. In all other respects, the judgment is affirmed.

AFFIRMED IN PART AND REVERSED IN PART.

      . Although the workers' compensation judge states that Thomas’ injury occurred on March 18, 1998, the disputed claim for compensation and the Employer's Report of Occupational Injury or Disease both stated that the date of injury was March 23, 1998.