author: |, MARION F. EDWARDS, Judge.

text:
    Dwanne KENT, et al. v. Lester EPHERSON, Jr., Husband of/and Muriel Glass Epherson, et al.
    No. 03-CA-755.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 2003.

      Willie M. Zanders, Sr., New Orleans, LA, Lee V. Faulkner, Jr., Co-Counsel, Gretna, LA, Clarence J. Roby, Jr., Co-Counsel New Orleans, LA, for Plaintiffs-Appellants.
    Jacqueline G. Griffith, Charles 0. Taylor, Carl L. Aspelund, Griffith, Battard & Taylor, New Orleans, LA, for Defendant-Appellee, Parish of Jefferson.
    John David Ziober Kennon, Odom & Dardenne, Baton Rouge, LA, and Regina H. Bartholomew, New Orleans, LA, for Defendant-Appellee, Housing Authority of Jefferson Parish.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   |, MARION F. EDWARDS, Judge.

Appellants appeal from the trial court’s judgment which granted defendants’ peremptory exceptions of no cause of action. For the following reasons, the judgment of the trial court is affirmed.

FACTS AND PROCEDURAL HISTORY

Following an act of arson at an apartment complex that took the lives four individuals, plaintiffs/appellants Dwanne Kent, Keith Ester, and Anika Murph (“plaintiffs”), filed suit against several defendants, including the Parish of Jefferson (“the Parish”), and the Housing Authority of Jefferson Parish (“HAJP”).

HAJP filed a peremptory exception of no cause of action on August 20, 2002 that was later adopted by the Parish of Jefferson on September 27, 2002. As a basis for their exceptions, both HAJP and the Parish asserted that, pursuant to 24 C.F.R. Section 982.4006, plaintiffs did not have a private cause of action against them for an alleged failure to comply with requirements of Section 8 housing quality standards. HAJP and the Parish also argued that the plaintiffs were not entitled to claim exemplary damages.

The hearing on these exceptions was held on January 17, 2003, after which the trial court granted both the HAJP’s and the Parish’s exception of no cause of action, and further dismissed all of plaintiffs’ claims against them with prejudice. Plaintiffs timely filed the present appeal.

|,LAW AND ANALYSIS

In their first assignment of error, plaintiffs assert that the trial court erred in granting HAJP and the Parish’s exception of no cause of action and in specifically finding that they could not bring a private action against HAJP and the Parish for failure to enforce housing quality standards requirements.

As the Louisiana Supreme Court noted in City of New Orleans v. Board of Directors of Louisiana State Museum: :

The purpose of the peremptory exception of no cause of action is to determine the sufficiency in law of the petition. The burden of showing that the plaintiff has stated no cause of action is upon the exceptor. The public policy behind the burden is to afford the party his day in court to present his evidence. The exception is triable on the face of the papers, and for the purpose of determining the issues raised by the exception, the court must presume that all well-pleaded facts in the petition are true. All reasonable inferences are made in favor of the nonmoving party in determining whether the law affords any remedy to the plaintiff.
A court of appeal reviews de novo a lower court’s ruling sustaining an exception of no cause of action because the exception raises a question of law and because the lower court’s decision is generally based only on the sufficiency of the petition. The question is whether, in the light most favorable to the plaintiff, the petition states any valid cause of action for relief.

When a petition states a cause of action as to any ground or portion of the demand, an exception raising the objection of no cause of action must be overruled. Any doubts are resolved in favor of the sufficiency of the petition.

In this case, the leased premises where the fire occurred was a government-subsidized rental property known as “Section 8” housing. As such, plaintiffs allege that it was the responsibility of HAJP and the Parish to “ensure that all units in the Section 8 Rental Certificate Program and the rental Voucher Program met the housing quality standards.” Plaintiffs asserted in their petition that HAJP and |3the Parish failed to inspect the housing at issue to certify that it met housing standards. On appeal, plaintiffs specifically refer to the fact that in the unit where the fire occurred there were no fire exits, stairs, or ladders on either the second or third floors to facilitate escape in the event of an emergency. Additionally, plaintiffs alleged in their petition “Other violations of federal, parish, or state laws policies or procedures that will be specified in due course.”

The “Section 8 Tenant Based Assistance” program’s inspection and maintenance standards, as well as its housing quality standards (“HQS”), are governed by the Code of Federal Regulations, Title 24, Section 982.1 et seq. 24 C.F.R. Section 982.406 provides:

Part 982 does not create any right of the family, or any party other than HUD of the PHA, to require enforcement of the HQS requirements by HUD or the PHA, or to assert any claim against HUD or the PHA., for damages, injunction or other relief, for alleged failure to enforce the HQS.

In Section 8(B) of their petition, plaintiffs alleged the following acts of negligence against HAJP and the Parish:

(1) Failure to “ensure that all units in the Section 8 Rental Certificate Program and the Rental Voucher Program met the housing quality standards.”
(2) Failure to properly “inspect the housing unit at 1161 Tallow Tree Lane in response to Request for Lease Approval and failure to inform potential tenant and owner of results and necessary actions.”
(3) Failure to encourage tenants and owners to maintain units up to standards.
(4) Failure to “make annual inspection of the unit to ensure that it still meets the housing quality standards. Inform [sic] the tenant and owner of the results, necessary actions and time period for compliance.”
(5) Other violations of federal, parish or state laws, policies or procedures that will be specified in due course.

14AdditionalIy, in Section 9 of their petition entitled “Other Claims,” the plaintiffs alleged:

“The Ephersons, as property owners, and Parish officials who approved the property for plaintiffs are liable under La. Civil Code Articles 2315, 2316, 2317 et seq; La. C.C. Article 2695, et seq. and other state and federal laws pertaining to federally funded housing.”

On appeal, plaintiffs assert that the foregoing allegations pled in the petition constitute several causes of action, aside from the claims that may be based on federal housing standards. Plaintiffs further assert on appeal that, “The federal housing standards referred to serve as collateral evidence for state-created contractual obligations.”

After a review of the record, we find, pursuant to 24 C.F.R. Section 982.406, that Section 8(B) of the plaintiffs’ petition, paragraphs one through four, as well as any claims that may be based upon federal laws that pertain to federally funded housing, clearly base a cause of action on the enforcement of housing quality standards. Accordingly, we find that the trial court did not err in finding that the plaintiffs did not have a cause of action against HAJP and the Parish on these grounds.

We next consider plaintiffs’ argument that they have sufficiently stated other causes of action against HAJP and the Parish to the extent that the exception of no cause of action should have been denied.

In Fitzgerald v. Tucker, the Louisiana Supreme Court explained:

Our code of civil procedure sets forth a system of fact pleading. Cox v. W.M. Heroman & Co., 298 So.2d 848, 855 (La.1974). Article 854 provides that “all allegations of fact of the petition ... shall be set forth in numbered paragraphs.” The Code further provides that a petition must contain “a short, clear, and concise statement of ... the material facts of, the transaction or occurrence that is the subject matter of the Ijitigation....” La.C.Civ.Pro. art. 891(A). To plead “material facts,” the petitioner must allege more than mixed questions of law and fact, such as that the defendant breached the contract or acted unreasonably. FRANK L. MA-RAIST & HARRY T. LEMMON, 1 LOUISIANA CIVIL LAW TREATISE CIVIL PROCEDURE § 6.3 at 102 (1999). Rather, “[t]he Code requires the pleader to state what act or omission he or she will establish at trial.” Id. (footnote omitted).
Fact pleading advances several goals of the petition, such as satisfying the defendant’s constitutional guarantee of due process by providing the defendant with fair notice, limiting the issues before the court, and notifying the defendant of the facts upon which the plaintiff bases his claims. See Id. at 101.

In Montalvo v. Sondes, the Louisiana Supreme Court further noted:

Mere conclusions of the pleader that are unsupported by facts do not set forth a cause of action, since Louisiana retains a system of fact pleading.

In this case, after a review of the record, we find the remainder of plaintiffs’ claims listed in their petition, specifically paragraphs five of Section 8(B) and section nine, do not set forth sufficient facts to constitute causes of action against the HAJP and the Parish. Accordingly, we find no error in the trial court’s action in granting the exception of no cause of action in regard to those claims as well.

Next, plaintiffs assert that the trial court erred in not allowing them to amend their petition after the court dismissed their claims against HAJP and the Parish.

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed. Even if a petition fails to state a cause of action, or if under the allegations, the party asserting the action | Jacks the procedural capacity to assert it, if the grounds of the objection can be removed by amendment, the plaintiff should be allowed to amend his demand. Where amendment would be a vain and useless act, however, amendment of the petition is not required prior to dismissal of the action. The decision to allow amendment is within the sound discretion of the trial court.

In this case, we note that plaintiffs have failed to allege any grounds which would cure the defect in their petition. The HAJP and the Parish are not owners of the property where the fire occurred, and their only connection to the premises was in the role as administrator for the Section 8 housing program. As previously discussed, there can be no action for damages against either the HAJP or the Parish in this regard. Therefore, a remand to allow plaintiffs to amend would be useless, and we find that the trial court did not abuse its discretion in dismissing plaintiffs’ claims without allowing plaintiffs an opportunity to amend their petition.

Plaintiffs further argue that the trial court erred in finding that they could not seek punitive damages from Jefferson Parish. However, in light of our finding that the claims against the Parish was properly dismissed, we need not consider this assignment of error.

For the foregoing reasons, the judgment of the trial court, dismissing the claims against the HAJP and the Parish with prejudice, is affirmed.

AFFIRMED.

      . 98-1170 (La.3/2/99), 739 So.2d 748.

      . McElwee v. State Through the Department of Transportation and Development, 98-0223 (La.App. 1 Cir. 2/19/99), 729 So.2d 695.

      . Pursuant to 24 C.F.R. Section 982.4, both HAJP and the Parish meet qualifications as a “Public Housing Authority” or "PHA.”

      . 98-2313 (La.6/29/99), 737 So.2d 706, 713.

      . 93-2813 (La.5/23/94), 637 So.2d 127.

      . LSA-C.C.P. art. 934.

      . Treasure Chest Casino, L.L.C. v. Parish of Jefferson, 96-1010 (La.App. 1st Cir.3/27/97), 691 So.2d 751; writ denied, 97-1066 (La.6/13/97), 695 So.2d 982.

        . Suttles v. Gibson, 422 So.2d 1308, 1309 (La.App. 5 Cir.1982).

      . Byers v. Edmondson, 97-0831, (La.App. 1st Cir.5/15/98), 712 So.2d 681; writ denied, 98-1596 (La.10/9/98), 726 So.2d 29; cert. denied, 526 U.S. 1005, 119 S.Ct. 1143, 143 L.Ed.2d 210 (1999).


source: Caselaw Access Project

author: WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    Dora WILKERSON v. WAL-MART STORES, INC.
    No. 03-CA-916.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.

      John B. Fox, Robert W. “DOC” Booksh, Jr., John B. Fox & Associates, L.L.C., New Orleans, LA, Counsel for Dora Wilkerson, Plaintiff/Appellant.
    Catherine Orwig Hunter, Allen & Gooch, Metairie, LA, Counsel for Wal-Mart Stores, Inc., Defendant/Appellee.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

In this workers’ compensation case, the sole issue presented for our review is whether the workers’ compensation judge erred in denying claimant’s request for attorney’s fees and penalties for defendant’s alleged failure to timely approve a necessary medical procedure. For the reasons stated herein, we affirm.

Dora Wilkerson was injured on December 14, 1999 while working as a department manager for Wal-Mart Stores, Inc. The employer accepted the injury as a compensable injury, authorized her treatment with Dr. Robert Mímeles and began paying her medical and indemnity benefits.

During the course of treatment, Dr. Mí-meles referred Ms. Wilkerson to a neurologist, Dr. William Johnston, for evaluation and treatment. Dr. Johnston found evidence of a ruptured disc in claimant’s low back, and recommended that Ms. Wilkerson undergo a myelogram and CT scan to determine whether surgery was required to remove the disc. This test was initially scheduled for February of 2000, but the test was cancelled. In May of 2000, Ms. Wilkerson’s condition began to worsen, and Dr. Johnston again | srecommended the myelogram and CT scan and sought authorization for the procedure from claimant’s employer.

In response, the employer requested that claimant obtain a second opinion by Dr. John Schuhmacher, and this examination occurred on September 13, 2000. Dr. Schuhmacher recommended that claimant submit to another MRI, and he did not specifically recommend the myelogram and CT scan procedure.

On November 9, 2000, Ms. Wilkerson filed a disputed claim for compensation on the basis that the employer failed to authorize the myelogram and CT scan as recommended by Dr. Johnston. Claimant also alleged she was entitled to attorney’s fees and penalties based on the employer’s failure to timely authorize this procedure.

On December 22, 2000, the employer moved to compel Ms. Wilkerson to submit to an IME, based on the conflicting reports from Dr. Johnston and Dr. Schuh-macher. The workers’ compensation judge ordered claimant to submit to an IME by Dr. John D. Jackson, a neurologist. Dr. Jackson evaluated claimant on January 29, 2001 and issued a report on February 16, 2001 in which he recommended that claimant have surgery to remove the ruptured disc in her back. In April of 2001, the employer authorized the surgery as recommended.

Although the employer approved the payment for surgery and subsequently authorized payment for the myelogram and CT scan, claimant pursued her claim for attorney’s fees and penalties for the employer’s failure to timely authorize this procedure which was required by Dr. Johnston before he would schedule the surgery. Claimant contends that authorization for this procedure was requested in May of 2000 and that employer’s refusal 14to authorize this procedure at the time it was requested was arbitrary and capricious.

Trial of this matter was held on February 18, 2002, and Dora Wilkerson testified that the reason she was unable to have surgery to correct her back problem was because of her employer’s failure to authorize the myelogram and CT scan required by Dr. Johnston. She stated that at no time did she refuse the myelogram. The workers’ compensation judge held the case open to allow defendant to take the deposition of Dr. Johnston.

Dr. Johnston’s deposition was taken on May 24, 2002 and the matter was submitted to the workers’ compensation judge on June 26, 2002. Following the submission of post-trial memoranda, the workers’ compensation judge rendered judgment in favor of defendant on July 29, 2002 denying the claim for penalties and attorney’s fees. Claimant subsequently filed a motion for new trial which was granted by the workers’ compensation judge on a limited basis for argument only. Oral argument on the new trial was held on March 13, 2003, and by judgment dated March' 14, 2003, the workers’ compensation judge denied modification of the previous judgment dated July 29, 2002. The workers’ compensation judge also assigned detailed reasons for judgment.

It is from this judgment that Dora Wilkerson now appeals. Ms. Wilkerson contends on appeal that the workers’ compensation judge erred in denying her claim for attorney’s fees and penalties where defendant failed to timely authorize the medical procedure and failed to present evidence that the medical procedure sought by claimant was not medically necessary.

An employer has the statutory duty to furnish all necessary and related medical expenses caused by a work-related injury. LSA-R.S. 23:1203. An employer’s failure to authorize a medical procedure for an employee [sotherwise eligible to receive workers’ compensation is deemed to be the failure to furnish compensation benefits, thereby triggering the penalty provisions of the Louisiana Workers’ Compensation Act. Failure to furnish benefits is permissible only when the claim has been “reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.” La. R.S. 23:1201(F)(2). Awards for penalties and attorney fees are governed by La. R.S. 23:1201(F). Adams v. Bayou Steel Corp., 01-1392 (La.App. 5 Cir. 4/10/02), 813 So.2d 1285, 1292. Awards of penalties and attorney’s fees in workers’ compensation are essentially penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers. Id.; Sharbono v. Steve Lang & Son Loggers, 97-0110 (La.7/1/97), 696 So.2d 1382.

In its reasons for judgment, the workers’ compensation judge stated as follows:

The Court rules that Employer was not arbitrary and capricious in the delay associated with the myelogram and CT scan, and that Claimant and her attorney are not entitled to penalties and attorney’s fee. If anything, the delays seem to have resulted almost entirely from the uncommunicativeness of her treating physician and unresponsiveness of her counsel.
Employer was entirely reasonable in seeking a second medical opinion after it could get no justification from Dr. Johnson [sic] for reordering a myelogram after Wilkerson refused the test the first time. The delays caused following the IME report were primarily caused by Claimant’s unwillingness to be examined by her own treating physician, leading to her having to be compelled to do so.

Factual findings in workers’ compensation cases are subject to the manifest error or clearly-wrong standard of appellate review. In applying the manifest error-clearly-wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Seal v. Gaylord Container Corp., 97-0688 (La.12/02/97), 704 So.2d 1161; Banks v. Industrial Roofing & Sheet Metal Works, 96-2840 (La.7/1/97), 696 So.2d 551, 556. “Thus, if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Seal; Banks, quoting Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

Regarding the issue of whether the employer unreasonably delayed authorization for payment of the- procedures recommended, claimant testified at trial that she at first refused to undergo the myelogram and CT scan recommended by Dr. Johnston because she was “feeling better.” However, she testified that Dr. Johnston later recommended the procedure a second time when her condition worsened, but she was told the procedure was not authorized by her employer. She also stated that she was not certain that she wanted to have back surgery, and that Dr. Johnston informed her that surgery was the next step following the myelogram and CT scan. The workers’ compensation judge heard the testimony of claimant at the trial of this matter and apparently concluded that the employer’s delay in authorizing the procedure was not the reason that claimant did not undergo a myelogram and CT scan. Our review of the record shows that this conclusion is amply supported by the evidence.

The deposition testimony of Dr. Johnston shows that the myelogram and CT scan he recommended were initially authorized by claimant’s employer, but claimant refused to submit to the procedure. Dr. Johnston requested authorization for the procedure a second time in May of 2000, and claimant’s employer requested a second medical opinion. Once the second opinion was obtained in September of 2000, the employer moved the court |7in December of 2000 to compel claimant to submit to an independent medical exam and this was ordered by the worker’s compensation judge on January 3, 2001. The IME report was issued in February of 2001, and the employer authorized surgery as recommended therein in April of 2001.

With regard to the pre-surgery procedure recommended by Dr. Johnston, evidence in the record shows that once the second opinion and IME were obtained, the employer attempted to authorize the medical procedure. However, the employer was unable to do so because of inaction by claimant and her counsel. The record contains correspondence from defendant’s attorney to the attorney for claimant dated July 30, 2001, August 10, 2001 and August 28, 2001 which requested medical documentation from Dr. Johnston regarding his second request for a myelogram and CT scan. On November 9, 2001, the employer filed a motion to compel the employee to submit to a medical examination by Dr. William Johnston, noting that claimant had missed several appointments with that physician. On November 26, 2001, the workers’ compensation judge signed a consent judgment whereby the parties agreed that claimant would submit to an examination by Dr. Johnston on November 28, 2001 or be subject to sanctions for her failure to appear. The record shows that Ms. Wilkerson saw Dr. Johnston on November 28, 2001, and the doctor’s notations from that evaluation show that claimant declined to submit to the myelogram and CT scan as recommended. Dr. Johnston stated in his deposition that the final time he saw claimant in February of 2002, she declined to submit to the myelogram and CT scan.

Based on the record before us, we conclude that the workers’ compensation judge determination that the employer’s actions were reasonable is supported by the record. We find no manifest error in the ^workers’ compensation judge’s finding that the employer acted reasonably in requesting a second opinion and IME after the medical procedure was refused by claimant the first time. Further, we find that the record supports the workers’ compensation judge’s finding that the delay in authorizing the procedure was due to inaction of claimant and her counsel rather than to inaction on the part of the employer.

In the present case, the workers’ compensation judge found that the employer was not arbitrary and capricious in the delay associated with the myelogram and CT scan and therefore claimant was not entitled to penalties or attorney’s fees. We have carefully reviewed the record in this matter, and fail to find this determination to be manifestly erroneous.

Accordingly, for the reasons assigned herein, the judgment dismissing Dora Wilkerson’s claim for penalties and attorney’s fees is affirmed. Ms. Wilkerson is to bear all costs of this appeal.

AFFIRMED.


author: 1 JAMES L. CANNELLA, Judge.

text:
    Cathy HUGHES v. WAL-MART STORES, INC.
    No. 03-CA-943.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.

      Allen & Gooch, Frank A. Flynn, Lafayette, LA, for Appellant.
    Nancy Silbert, Wolfe, Begoun & Pick, New Orleans, LA, for Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA and SUSAN M. CHEHARDY.
   1 JAMES L. CANNELLA, Judge.

Defendant, Wal-Mart Stores, Inc. (Wal-Mart), appeals from a judgment of the Office of Workers’ Compensation in favor of the Plaintiff, Cathy Hughes (Hughes), for temporary total benefits, medical and transportation expenses, penalties and attorney fees. For the reasons which follow, we affirm in part and reverse in part.

Hughes had been employed by Wal-Mart for seven years prior to the accident that occurred at 9:45 A.M. on October 19, 2001. Hughes contends that she hurt her back when she picked up a second case of candied yams. Shortly thereafter, she went on break and several of her co-workers observed her apparent pain and were informed of the occurrence. Hughes informed her manager of the event but did not fill out a report on the accident on that date. However, finding no relief over the weekend, and in fact having the pain worsen, Hughes went to Charity Hospital on October 23, 2001 for treatment of her back and leg pain. She was advised to rest for a couple of days, which she did. She tried to go back to work but was still in too much pain. A co-worker recommended that she see a chiropractor, Dr. Victor Flynn. Dr. Flynn put Hughes on “no-work” status and [ ¡¡referred her to an orthopedist. Dr. Flynn contacted the claims adjuster for Wal-Mart, Laura Garrison (Garrison), requesting approval for Hughes to see Dr. Daniel Gallagher. Hughes thought that the approval had been given but when she arrived at Dr. Gallagher’s office, she was informed by his staff that they had not received approval. Hughes was not seen by the doctor that day. Approval was again sought by Dr. Flynn and secured prior to her December 12, 2001 visit to Dr. Gallagher. Dr. Gallagher continued the “no-work” status and reported to Garrison recommending an Magnetic Resonance Imaging (MRI). The MRI was not approved and Wal-Mart did not pay Dr. Gallagher’s bill. Wal-Mart thereafter requested that Hughes see their physician, Dr. Robert Steiner. Dr. Steiner agreed with Dr. Gallagher’s diagnosis and also recommended an MRI, but Wal-Mart again refused approval. Hughes remained in extreme pain and no physician released her to return to work.

Plaintiff filed a claim with the Officer of Workers’ Compensation. Following a trial, judgment was rendered in favor of Hughes finding that she had been “injured by an accident during the course and scope of her employment on October 19, 2001.” The judgment further held that Hughes was entitled to temporary total disability benefits from October 19, 2001, the date of the accident, through the present, as well as medical, medication and transportation expenses. It was also found that Wal-Mart was liable for penalties in the amount of $4000 and attorney fees in the amount of $4000 for its arbitrary and capricious refusal to pay benefits. It is from this judgment that Wal-Mart appeals. On appeal, Wal-Mart assigns three errors.

First, Wal-Mart argues that the trial court erred in finding that Hughes sustained an accident while in the course and scope of her employment as provided by La. R.S. 23:1021(A). Wal-Mart argues that the claimant, to be successful in her claim, bears the burden of establishing that she sustained an injury by an accident 14arising out of the course and scope of her employment, that she is disabled, and that the disability is related to the injury sustained in the work related accident. WalMart argues that the trial court erred in finding that Hughes met her burden of proof.

Hughes argues to the contrary that Wal-Mart’s argument, addressing the Workers’ Compensation Judge’s factual determinations, is governed by the manifest error rule and in this case the Workers’ Compensation Judge’s findings are amply supported by the record. The findings are not clearly wrong.

It is well settled that appellate review of the Workers’ Compensation Judge’s assessment of the evidence is governed by the manifest error standard. Wise v. H.B. Zachary Co., 00-3 (La.App. 5th Cir.4/25/00), 760 So.2d 500. An appellate court is prevented from reversing a trial court’s findings of fact in the absence of manifest error or unless it is found to be clearly wrong despite the fact that the appellate court might have weighed the evidence differently. Stobart v. State of Louisiana DOTD, 617 So.2d 880 (La.1993).

In this case, we find that the assessment of the evidence by the Workers’ Compensation Judge, as reflected in the judgment, is supported by the record. Hughes, a seven year employee in good standing with Wal-Mart at the time of the accident, testified regarding the specific details of the work accident, including the time, 9:45 A.M., date of October 19, 2001, and circumstances. Her testimony was corroborated in part by her co-employees, two of whom, Tam McCallon and Karen Bolar, testified that they witnessed her in pain shortly after the incident and throughout the day, and a third, Arthur Brown, who testified that he helped her to the front of the store that day because of her pain. Additionally, a fourth co-employee, Karen Bruce, who attended the Wal-Mart volunteer program at City Park the following day with Hughes, testified that she remembered Hughes stating that the reason she was late that morning was because she was in so much pain.

|,/The main thrust of Wal-Mart’s argument herein is that Hughes did not file a report on the accident with Wal-Mart supervisory personnel on the day it happened and the initial treating physician’s report did not include the fact that her injury stemmed from a work accident that occurred on October 19, 2001. However, we do not find the delayed report determinative of whether there was a work accident on October 19, 2001.

Hughes explained that she did tell her manager of the occurrence at the time, but she did not fill out a report on the accident that day because it was not unusual to pull a muscle and have it resolve itself in a day or two. Other employees corroborated this. They testified that they often do heavy lifting at work that strains their backs and they don’t fill out a report each time because it usually resolves after a day or two of taking Aleve. In other words, Hughes simply did not realize at the time how serious her injury was. However, this time, her pain continued to worsen instead of resolving.

Further, the jurisprudence does not support Wal-Mart’s argument. To the contrary, it has been held that an employee that finishes the work day without reporting an accident which occurred during that day is not barred from receiving workers’ compensation since the full consequences of the disabling accident are not always apparent when the injury occurs. Smith v. Radisson Suite Hotel New Orleans, 94-626 (La.App. 5th Cir.1/18/95), 650 So.2d 338. A workers’ compensation claimant is not barred from recovery because he or she did not immediately realize the full extent of his or her work-related injury when it happened. Joseph v. J.E. Merit Constructors, Inc., 01-166 (La.App. 1st Cir.6/21/02), 822 So.2d 72.

Hughes identified the exact time and circumstances of the work related accident that gave rise to her disabling injury. She was able to work before this occurrence and not able to work after it. Her coworkers corroborated Hughes | ^testimony. No physician released Hughes to return to work. While the initial doctor’s report did not refer to the October 19th lifting incident, it did list the date of the incident as October 18th and Hughes testified that she told the doctor about the lifting incident on the 19th and she did not know why he did not write it down. Based on the foregoing, we find no manifest error in the Workers’ Compensations Judge’s factual determination that Hughes suffered a work related accident on October 19, 2001 that caused her current disability.

Next, Wal-Mart argues that the Workers’ Compensation Judge erred in finding that Hughes suffered a work related accident on October 20, 2001 while doing volunteer work at City Park.

Hughes argues, contrary to Wal-Mart, that the Workers’ Compensation Judge did not find that the work related injury occurred on October 20, 2001. Rather, it was held that the work related injury occurred on October 19, 2001, as discussed above. In the alternative, Hughes argues that if the Court does find that the events of October 20, 2001 contributed to her disability, then the Workers’ Compensation Judge’s finding that the “volunteer” work she was doing on October 20, 2001 was work related in that it arose from her employment with Wal-Mart, is not clearly wrong. Her argument is supported, she points out, by her own testimony that she did not do any heavy lifting on October 20, 2001 and the testimony of Bruce that Hughes complained of pain from the event that occurred the day before as soon as Hughes picked up Bruce. Moreover, Hughes points out that the record clearly supports the finding that the activities that Hughes was involved in on October 20, 2001 were work related.

Upon review, we find that, as discussed above, the record supports the Workers’ Compensation Judges’ finding that Hughes did suffer a work related accident on October 19, 2001 that caused her disabling condition. Hughes testified 17that she did not do any heavy lifting on October 20, 2001 and her complaints of pain before any activity on that date were corroborated by her co-employees.

Nevertheless, we also find that Hughes’ activities on October 20, 2001, an unpaid worker at City Park, did arise out of her employment. In Jackson v. American Ins. Co., 404 So.2d 218 (La.1981) the Supreme Court referred to three factors in considering whether recreational or social activities engaged in by an employee arise out of or in the course of his employment:

(1) They occur on the premises during a lunch or recreation period as a regular incident of the employment; or
(2) The employer, by expressly or impliedly requiring participation, or by making the activity part of the services of an employee, brings the activity within the orbit of the employment; or
(3) The employer derives substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life.

The record in this case indicates that Wal-Mart committed to doing the project. It provided all the necessary supplies for the project and the workers. Hughes’ supervisor requested that she participate in the City Park activities. Hughes was assigned by her supervisor as a “sponsor” in charge of securing the attendance of the “volunteers” at the event. There was a sign-in sheet. She was given a Wal-Mart T-shirt to wear. Her employer provided the food and drinks for the day. The workers were only allowed a 15 minute break during the day. And, her employer benefited from the work being done. Based on these factors, we find no error in the Workers’ Compensation Judges’ determination that the activities Hughes engaged in on October 20, 2001, to the extent that the may have exacerbated her injuries from the day before, were work related.

Finally, Wal-Mart argues that the Workers’ Compensation Judge erred in finding that the claim was not reasonably controverted, that it was arbitrary and capricious, and that Wal-Mart was liable for penalties and attorney fees. Wal-Mart |Rargues that the dispute as to Hughes’ entitlement to benefits was a bona fide one and that penalties and attorney fees were wrongfully awarded in this ease simply because the employer lost the case. We agree.

The assessment of penalties and attorney fees by the Workers’ Compensation Judge is a factual question which is not to be disturbed on appeal in the absence of manifest error. Barbarin v. TLC Home Health, 02-1054 (La.App. 5th Cir.4/29/03), 845 So.2d 1199. Awards of penalties and attorney’s fees in workers’ compensation cases are essentially penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers. Sharbono v. Steve Lang & Son Loggers, 97-0110 (La.7/1/97), 696 So.2d 1382. Although the Workers’ Compensation Act is to be liberally construed in regard to benefits, penal statutes are to be strictly construed. See International Harvester Credit v. Seale, 518 So.2d 1039, 1041 (La.1988). The fact that an employer may be subjectively motivated to avoid paying compensation is not determinative. Neither is the fact that an employer loses a disputed claim. Sharbono, 97-0110 at 11, 696 So.2d at 1389 (penalties and fees are never assessed automatically against the losing party); Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41 at 46.

The record shows that Garrison investigated the accident. She received, conflicting information regarding when and how the injury occurred and whether it occurred while she was at work. Hughes did not report the accident to her employer when it occurred. Hughes also did not report the work related accident to her physician as the cause of her injury. This case was seriously contested on both factual and legal issues. Based on our review of the record, we find manifest error in the award by the Workers’ Compensation Judge of penalties and attorney fees and set aside those awards.

| ¡Accordingly, for the foregoing reasons, we affirm the judgment rendered by the Workers’ Compensation Judge finding that Hughes suffered a work related accident on October 19, 2001 that caused her current disability, awarding her temporary total disability benefits, medical and transportation expenses. The award of penalties and attorney fees of $4000 each is hereby vacated and reversed. Costs of the appeal are to be paid by Wal-Mart.

AFFIRMED IN PART AND REVERSED IN PART.


author: CLARENCE E. McMANUS, Judge.

text:
    Randy K. WILLIAMS v. ENMON ENTERPRISES d/b/a Jani-King of New Orleans and Louisiana Workers’ Compensation Corporation.
    No. 03-CA-991.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.

      Robert A. Lenter, Ruben Hernandez, Jr., Metairie, LA, for Plaintiff-Appellee.
    Sammie M. Henry, Johnson Stiltner & Rahman, Baton Rouge, LA, for Defendants-Appellants.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   CLARENCE E. McMANUS, Judge.

At issue in this workers’ compensation case is whether claimant is entitled to supplemental earnings benefits and attorney fees. For the following reasons, we affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

Claimant, Randy Williams, was the owner and operator of a franchise purchased from Enmon Enterprises, Inc., d/b/a Jani-King of New Orleans, (hereinafter referred to as “employer”). In May 1993, claimant was injured while cleaning an office in the course and scope of his employment when he slipped on a wet floor. He sustained injuries to his leg, back and left side. Claimant’s medical records indicate that he saw several orthopedic surgeons from 1993 through at least 1999 and that he received physical therapy.

He received temporary total disability benefits (“TTD”) from June 6, 1993 to July 2, 1993. Thereafter, he returned to work in a light-duty capacity for various employers. He received supplemental earnings benefits (“SEBs”) from the end of July 1997 to August 1999. In August 1999, claimant applied for full-duty, unrestricted employment with Delta Catering Management, L.L.C., a company which provides services to offshore oil drilling rigs and production platforms. He was hired as a utility hand on an offshore platform. His wage was $5.35 an hour for two weeks on duty and one week off. His shift was twelve hours on and twelve hours off duty. Claimant actually worked and was paid for two two-week “hitches” from August 27, 1999 to September 3, 1999 and September 17, 1999 to | ¡¡October 1, 1999. Defendants contend claimant was fired from Delta for theft. Claimant contends he quit because the work exceeded his physical limitations but admitted receiving a termination notice from Delta. In December 1999 and January 2000, he again received SEBs.

In February 2000, Louisiana Workers’ Compensation Corporation (“LWCC”) terminated claimant’s SEBs based on its conclusion that claimant’s employment with Delta showed that he was capable of returning to work earning ninety percent of his pre-injury wage. In April 2000, claimant filed a disputed claim for compensation seeking reinstatement of SEBs, vocational rehabilitation, penalties and attorney fees. Claimant’s employer and LWCC (collectively referred to as “defendants”) entered a general denial of the claim. Subsequently, claimant was placed on temporary total disability from August to September 2000 and was later released to return to work which he did.

Trial was held in March 2003 and the Workers’ Compensation Judge (“WCJ”) rendered judgment in favor of claimant on May 21, 2003. The WCJ’s written reasons for judgment made certain findings of fact as follows.

1. Randy K. Williams was a credible witness.
2. Claimant testified at trial that he was incapable of performing the duties of Utility Hand for Delta Catering Management, L.L.C., after an actual four week trial on the job.
3. No live witnesses testified at the trial on March 10, 2003 other than Randy K. Williams.
4. No evidence was introduced by Delta at trial that Claimant satisfactorily performed the duties of Utility Hand during the period of August 27 through October 1,1999.
5. The separation notice from Delta alleging discharge for theft and dated October 19, 1999 was not identified by a Delta employee, nor was the allegation substantiated by a Delta employee.
146. Since January 2000, Claimant has been continuously employed as an Assistant Occupational Therapist at the Medical Center of Louisiana. This is a part-time, light-duty job. Claimant works sixteen hours per week and is currently paid $7.85 per hour.

The WCJ concluded that defendants failed to meet their burden of proof to rebut claimant’s entitlement to SEBs by showing the existence of a suitable job that claimant was physically able to perform. In so holding, the WCJ relied on Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. The WCJ awarded claimant SEBs' for October and November 1999 and from February 2000 through filing of the disputed claim and attorney fees in the amount of $4,000.00. Defendants filed this appeal.

DISCUSSION

Defendants argue that the WCJ erred in awarding SEBs in this case because claimant demonstrated through his employment with Delta that he was capable of earning more than ninety percent of his pre-injury earning capacity despite termination from that job. Also, the WCJ erred in awarding $4,000.00 in attorney fees.

Our review of the WCJ’s findings is subject to the manifest error rule. Cole v. State Department of Public Safety and Corrections, 01-2123 (La.9/4/02), 825 So.2d 1134, 1144. An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong, and where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Id. In Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993), the Louisiana Supreme Court outlined a two part test for the reversal of a fact finder’s determinations: 1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and 2) the appellate court must further determine that the record establishes that the finding is clearly | ¡¡wrong or manifestly erroneous. Moreover, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Cole, at 1144, citing Stobart, supra.

With that standard in mind, we note that in Banks, infra, the Supreme Court opined that the purpose of SEBs is to compensate an injured employee/claimant for his lost wage earning capacity due to an on the job accident. Banks at 556. A claimant is entitled to receive SEBs if he sustains a work-related injury resulting in his inability to earn ninety percent or more of his average pre-injury wage. Id. Initially, the claimant bears the burden of proving (by a preponderance of the evidence) that the injury at issue resulted in his inability to earn his pre-injury wage. Id. This analysis is based on the facts and circumstances of each case with the reviewing court bearing in mind that workers’ compensation law is to be liberally construed in favor of coverage. Id.

Once the claimant has met its burden, that burden shifts to the employer. Banks at 556. An employer may discharge its burden of proving job availability by establishing the following through a preponderance of the evidence by competent evidence. Id. at 557.

(1)the existence of a suitable job within claimant’s physical capabilities and within claimant’s or the employer’s community or reasonable geographic region;

(2) the amount of wages that an employee with claimant’s experience and training can be expected to earn in that job; and

(3) an actual position available for that particular job at the time that the claimant received notification of the job’s existence. Id.

The Louisiana Supreme Court defines a “suitable job” as one that claimant is not only physically capable of performing, but one that also falls within the limits of claimant’s age, experience, and education, unless, of course, the employer or | ^potential employer is willing to provide additional necessary training or education. Id.

Applying these guidelines to the instant case, we conclude that the hearing officer was not manifestly erroneous or clearly wrong in finding that defendants failed to present sufficient competent evidence to carry their burden. Defendants did not put on any evidence regarding the availability of suitable jobs for claimant. Rather, it relied solely on claimant’s employment with Delta and called no witnesses to rebut claimant’s contention that the position at Delta was beyond his physical limitations. Thus, we cannot say that the hearing officer’s findings were unreasonable, manifestly erroneous or clearly wrong. Moreover, because the record supports the hearing officer’s finding that defendants failed to establish the availability of any other jobs “suitable” for claimant, we conclude that the WCJ was correct in awarding SEBs.

Regarding the award of attorney fees, we note that under La. R.S. 23:1201.2, reasonable attorney fees are awarded as a penalty under the workers’ compensation law when an employer discontinues payment of benefits and the discontinuance is found to be arbitrary, capricious, or without probable cause. J.E. Merit Constructors, Inc. v. Hickman, 00-0943 (La.1/17/01), 776 So.2d 435, 437. Arbitrary and capricious behavior is willful and unreasonable action, without consideration or regard for the facts and circumstances presented. Id.

We do not find that the record contains sufficient factual information to conclude the defendants arbitrarily and capriciously denied benefits to claimant. Defendants’ action in terminating claimant’s SEBs based on its belief that claimant could obtain employment which paid him more than ninety percent of his pre-injury earning capacity was not arbitrary, capricious, or without probable cause.

^CONCLUSION

For the foregoing reasons, we find the WCJ did not err in awarding supplemental earnings benefits to claimant. However, the WCJ did err in awarding claimant $4,000.00 in attorney fees.

AFFIRMED IN PART; REVERSED IN PART.


author: EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    Teri Palermo WURTZEL v. Robert S. WURTZEL.
    No. 03-CA-902.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.
    William P. Connick, Michael S. Futrell, Connick & Connick, L.L.C., Metairie, LA, and Kenneth A. Goodwin, New Orleans, LA, for Plaintiff-Appellant.
    Judy Y. Barrasso, Barrasso Usdin Kup-perman, Freeman & Sarver, L.L.C., New Orleans, LA, for Defendant-Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA and SUSAN M. CHE HARDY.
   EDWARD A. DUFRESNE, JR., Chief Judge.

This is an appeal by Teri Palermo Wurt-zel, plaintiff — appellant, from a judgment sustaining an exception of prescription of her nullity action to set aside a judgment of partition of community property. Because we find no manifest error in the findings of the trial judge that appellant had notice of the basis of her nullity action over one year before that action was brought, we must affirm the judgment as per La.Code Civ. Pro. Art.2004 B. Appellant alternatively styled her petition as one for rescission for lesion pursuant to La. Civ.Code Art 814. The trial judge correctly noted that this article only applies to “extrajudicial” partitions and not to partitions made in court judgments, but she did not rule on this issue in the judgment. Nonetheless, we note the failure of the petition to state a cause of action in lesion and dismiss that portion of the petition as well.

The procedural history of this litigation is as follows. The parties filed for divorce on June 5, 1995. At one time the community owned all of the stock in Litigation Reprographics and Support Services, Inc. However, in 1994 the corporation needed to raise cash and the community sold one-half of the stock to Sean Cummings. As a part of this sale a shareholders agreement was signed which |3provided that in the event of a divorce the stock would be evaluated as of the date of filing a divorce petition.

During the course of the litigation the parties agreed, by way of a consent judgment of May 15, 1996, to have the court appoint Melo Nix, CPA, to value the corporation as of June 5, 1995. Ms. Nix was in fact an expert originally selected by appellant. It was further agreed that the figure produced by Ms. Nix would be binding on the parties. In her report Ms. Nix stated that after having received the financial information on the corporation from Mike Kingsbury, its CPA, she fixed the community share of the business at $210,000.

Upon receipt of this valuation, appellant filed a petition to set aside the consent judgment of May 15,1996, which made Ms. Nix’s figure binding on the parties, as well as a petition to set aside the shareholders’ agreement concerning the June 5, 1995, valuation date. During further discovery on these issues, appellant was told by Sean Cummings that he would not sell his 50% share of the business for less than $800,000. She also employed Charles Theriot, CPA, to give an expert opinion on the value of the company, and he gave a figure of over $1,000,000 for the community’s share. On May 28, 1997, appellant amended her petition to allege the figure provided by Mr. Theriot.

Then on August 28, 1998, a hearing was held during which appellant agreed to the value fixed by Ms. Nix. A final division of community property was read into the record, and that settlement was reduced to a consent judgment which was signed by the parties and their attorneys, and was signed by the judge on December 1, 1997.

In June of 1998, the corporation was sold to a national company for a face amount of 4.3 million dollars, although ap-pellee testified the actual amount received for his 50% interest was closer to 1.2 million before taxes. Almost two years later, on April 28, 2000, appellant filed the present action for nullity and for | ¿lesion. Ap-pellee urged exceptions of no cause of action, res judicata, and prescription. After a trial on the prescription issue the exception was sustained. In her reasons for judgment the trial judge also noted that the action for rescission for lesion as provided for in La. Civ.Code Art. 814, is only available in “extrajudicial” partitions. Appellant now appeals.

Pursuant to La.Code Civ. Pro. Art. 2004 B, an action for nullity must be brought within one year of discovery of the fraud or ill practice alleged in the petition. In construing this article this court has held that whenever there is notice enough to excite attention and put a person on guard and to suggest further inquiry, this is sufficient to start the running of the one year prescriptive period. Kambitsis v. Schwegmann Giant Supermarkets, Inc., 95-487 (La.App. 5th Cir.11/15/95), 665 So.2d 500, writ denied, 95-3016 (La.2/9/96), 667 So.2d 540.

In the present case the trial judge found as fact that appellant should have known of the potential problem in the Nix valuation which she alleges in her nullity petition as early as May 23, 1997. It was on that date that she amended her earlier petition to set aside the judgment authorizing the Nix evaluation to allege that her expert, Charles Theriot, had informed her that in his opinion the value of the community interest in the business was over $1,000,000. Other evidence showed that by that time she had also learned of Sean Cummings’ opinion that he would not sell his one-half interest for less that $800,000. These being factual determinations, we can not set them aside unless they are manifestly erroneous. Considering all of the evidence in this case it is clear that these findings are supported by a reasonable assessment of the evidence, and we therefore must affirm them. The consequence of these findings is that the nullity action was brought too late and has prescribed, and we affirm the judgment so ruling.

The second issue here concerns the action for lesion brought pursuant to La. Civ.Code Art. 814. That article provides that an “extrajudicial partition” may be 1..¡rescinded on account of lesion. The partition here is a judicial one, and thus this article is inapplicable. Lapeyrouse v. Lapeyrouse, 98-0271 (La.App. 1st Cir.1/19/99), 729 So.2d 682. The appellee urged an exception of no cause of action, but this exception was not ruled upon by the district court. Nonetheless, because the exception of no cause of action is one which may be noted by this court we hold that the appellant has failed to state a cause of action as to the lesion claim. Code Civ. Pro. Art. 927.

For the foregoing reasons the judgment sustaining the exception of prescription is affirmed. We further rule that appellant has failed to state a cause of action under La. Civ.Code Art. 814 and because that defect is not curable by amendment the petition asserting that remedy is hereby dismissed.

JUDGMENT SUSTAINING EXCEPTION OF PRESCRIPTION AFFIRMED, PETITION FOR LESION DISMISSED.


text:
    Jerry CREWS v. ALEXAS CORPORATION & LWCC.
    No. 03-CA-915.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.

      Jerry Crews, New Orleans, LA, in proper person, Plaintiff/Appellee.
    • Jeffrey J. Warrens, Johnson, Stiltner & Rahman, Baton Rouge, LA, for Alexas Corporation & LWCC, Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

This worker’s compensation case arises from an incident that occurred on February 26, 1994. While in the course and scope of his employment as a maintenance supervisor with Alexas Corporation, the claimant, Jerry Crews, was walking on an apartment floor when his foot went through a rotten floorboard and he fell forward, hitting a window ledge. He suffered several injuries as a result of this incident and has seen many doctors over the past nine years. He also had right thoracic outlet surgery in 1995 due to this accident. Mr. Crews has received worker’s compensation benefits since 1994.

On April 1, 2002, Mr. Crews filed a disputed claim for compensation with the Office of Worker’s Compensation seeking a declaration that he is permanently and totally disabled, and asserting that his medical and transportation expenses have not been timely paid by Louisiana Worker’s Compensation Corporation (LWCC).

Trial of this matter was held on March 10, 2003. On April 30, 2003, the worker’s compensation judge signed a judgment finding 1) that Mr. Crews did not meet his burden of proving that he is permanently and totally disabled; 2) that Mr. | sCrews is entitled to continue receiving temporary total disability benefits; 3) that Mr. Crews is entitled to the continuing payment of all medical expenses, medication expenses and transportation expenses for the injury sustained on February 26, 1994; 4) that Mr. Crews shall be provided with retraining and psychotherapy to determine if he can return to work in a sedentary job; 5) that the medicals established that there are extremely limited possibilities for Mr. Crews to return to any productive occupation; 6) that the defendants have been arbitrary and capricious in their refusal to timely pay the medical bill for Mr. Crews’ functional capacity evaluation, and they must pay a penalty of $2,000.00. It is from this judgment that the defendants, Alexas Corporation and LWCC, appeal.

DISCUSSION

On appeal, the defendants assert four assignments of error. In the first assignment of error, the defendants contend that the worker’s compensation judge was manifestly erroneous and committed legal error in concluding that Jerry Crews was “entitled to the continuing payment of temporary total disability benefits.” The defendants do not dispute that Mr. Crews suffered injuries in the 1994 incident or that he continues to have some level of pain and certain restrictions to this date. However, they argue that he has not proven that he is totally disabled or that he cannot work at all. Mr. Crews asserts that he is not able to perform work in any employment setting due to his pain.

In order to prove entitlement to total temporary disability (TTD) benefits, the employee must prove by clear and convincing evidence that he is physically unable to engage in any employment, regardless of its nature. Atwood v. Ewing Timber, Inc., 34,045 (La.App. 2 Cir. 12/15/00), 774 So.2d 1140, 1144, writ denied, 01-543 (La.5/11/01), 792 So.2d 733. The worker’s compensation judge must weigh all of the evidence to determine if the claimant has met his burden of proving total temporary disability. Id. The existence of pain is not relevant to the 14question of entitlement to TTD benefits. Harris v. Langston Co., Inc., 94-1266 (La.App. 3 Cir. 4/5/95), 653 So.2d 789, 795, writ denied, 95-1178 (La.6/23/95), 656 So.2d 1020.

At trial, Mr. Crews testified about the accident, his medical treatment, and the medication that he currently takes, including morphine. He also testified that he has been house-sitting for about four months and that prior to house-sitting, he lived with his sister for a year and a half. During that time, he had to take care of himself, including doing laundry, cleaning the bathroom, and washing dishes.

Mr. Crews has seen many doctors since the accident for both physical and medical issues, and he had right thoracic outlet surgery in 1995. The claimant submitted letters written in 1995 and 1996 by Dr. Watts Webb, a cardiothoracic surgeon, in which Dr. Webb opined that Mr. Crews was not able to work and that the best he could hope for would be retraining to a sedentary desk job. The claimant returned to see Dr. Webb on March 3, 2003, which was the week before trial. By letter that same date, Dr. Webb indicated that Mr. Crews has limited possibilities for a productive occupation and that sedentary work for Mr. Crews would have to be in a carefully constructed occupation. However, Dr. Webb did not indicate that Mr. Crews was not able to do sedentary work at all. Mr. Crews also submitted a letter dated May 15, 2000 from Dr. Hurayt, a Georgia psychiatrist, stating that he could not envision Mr. Crews returning to work. Although Mr. Crews did submit some information in support of his position that he cannot work, most of the evidence presented at trial is to the contrary.

Mr. Crews is currently living in Illinois. While in Illinois, he has seen several doctors, including Dr. Michael Amaral, Dr. Jumar Apolinario, and Dr. Ramsin Benya-min. He first saw Dr. Amaral, a neurosurgeon, in November of 2001. In a letter dated December 28, 2001, Dr. Amaral opined that he was doubtful that additional surgery would help Mr. Crews and stated that he didn’t pbelieve he could be of further benefit to him. He referred Mr. Crews to Dr. Apolinario, who specializes in physical medicine and rehabilitation. Dr. Apolinario recommended that Mr. Crews undergo a Functional Capacity Evaluation (FCE) to assess his functional abilities. On November 7 and 8, 2002, Mr. Crews appeared for the FCE testing. According to Kim Weber, who was the physical therapist who performed the FCE, Mr. Crews admitted his displeasure at having to participate in the FCE and told her that he knew he would not be able to complete the testing. Mr. Crews had subjective complaints of pain and Ms. Weber noted that during one of the physical activities, his heart rate dropped, which indicated that he was not fully exerting himself. After completing some of the tests on the first day, Mr. Crews stated that he could not do anymore and he declined Ms. Weber’s offer to rest or to do lower-level activities. On the second day of testing, Mr. Crews again refused to perform several tests.

Ms. Weber believed that he could do more of the tests and that he was self-limiting. She noted that he took a subjective part of the exam on the first day while sitting on an exam table for approximately 50 minutes. He declined her offer to sit in a chair with back support, which is commonly requested by patients with back pain. In his brief to this Court, Mr. Crews admitted that he was self-limiting and stated that he is an expert on what will hurt him and what he should not attempt. Although Mr. Crews refused to complete much of the testing and was self-limiting during some of the testing, based on the testing that he did complete, Ms. Weber believes that he can tolerate sedentary work.

After reviewing the FCE, Dr. Apolinario opined, in a letter dated January 31, 2003, that Mr. Crews was employable at least at a sedentary level. Dr. Benyamin, who specializes in pain management, has treated Mr. Crews for chronic pain and still treats him. When asked whether Mr. Crews could return to work, Dr. | fiBenyamin stated in a letter dated January 29, 2003 that he would defer to Dr. Apolinario’s opinion.

Mr. Allen Crane, a vocational rehabilitation counselor, testified that he interviewed Mr. Crews on January 7, 2003 by phone. Relying on Dr. Apolinario’s opinion that he was capable of sedentary work, Mr. Crane identified potential employment opportunities for Mr. Crews. However, Mr. Crews told Mr. Crane that he did not feel capable of working and did not need Mr. Crane’s assistance because he was not interested in pursuing employment. Nevertheless, Mr. Crane sent notification to Mr. Crews of five job openings in the New Orleans area, including the pertinent contact information and salary information. Out of the four jobs proposed, Dr. Apoli-nario approved four of them for Mr. Crews. Mr. Crane received a letter from Mr. Crews dated February 19, 2003 in which he stated that he did not feel that a sitting job was right for him.

Mr. Michael McKee, a vocational consultant, testified via deposition. He stated that he met with Mr. Crews on December 3, 2002, and Mr. Crews told him that he was permanently and totally disabled and will never work again. He wrote a letter to Mr. Benyarain who responded that he would defer to Dr. Apolinario regarding Mr. Crews’ ability to work. Thereafter, he contacted Mr. Crews and told him that he had been given directions to begin job placement, but Mr. Crews responded that he had no intention of being involved in that. Mr. McKee performed a labor market survey and identified several sedentary jobs in Illinois.

An appellate court should not set aside the findings of fact of a worker’s compensation judge unless they are manifestly erroneous or clearly wrong. Navarre v. K-Mart, 01-753 (La.App. 5 Cir. 11/27/01), 803 So.2d 206, 208. Considering the law and the record in this matter, we find that the worker’s compensation judge was indeed clearly wrong when she found that Mr. Crews was entitled to TTD benefits. Clear and convincing evidence is evidence 17demonstrating that the existence of a disputed fact is highly probable. Atwood, supra at 1144. The record before us indicates that he did not meet his burden of proving by clear and convincing evidence that he is unable to engage in any employment. Although Mr. Crews does have restrictions and limitations on the work that he can perform, the medical and testimonial evidence strongly indicates that he is able to work at a sedentary job. However, Mr. Crews has made no attempt to find a job or to utilize the job placement assistance that has been offered to him, because he stated that he is not able to work.

Accordingly, because the claimant has not established that he is unable to work in any employment setting, we reverse and vacate the worker’s compensation judge’s award of TTD benefits to the claimant, Jerry Crews. However, we note that the record suggests that Mr. Crews may be entitled to supplemental earnings benefits. Since this was not an issue that was addressed at trial, we reserve his right to seek supplemental earnings benefits pursuant to LSA-R.S. 23:1221(3).

In the second assignment of error, the defendants argue that the worker’s compensation judge was manifestly erroneous and committed legal error in concluding that Jerry Crews is “entitled to the continuing payment of all medical expenses, medication expenses, and transportation expenses for the injuries sustained on February 26, 1994.”

A worker’s right to medical treatment is independent of his right to TTD benefits. Anderson v. Biedenharn Bottling Group, 95-646 (La.App. 3 Cir. 11/2/95), 664 So.2d 588, 594. LSA-R.S. 23:1203 provides that the employer must reimburse the employee for all necessary medical expenses incurred as a result of his work-related injury. Mr. Crews is still incurring medical expenses, including fees for psychiatric treatment, as a result of this accident. We agree with the worker’s compensation judge that his expenses for this continuous and ongoing treatment are compensable and should continue to be paid, as long as they are |srelated to the accident. Although Mr. Crews may indeed be entitled to future medical expenses arising from the February 26, 1994 accident, an employee is not entitled to an award of medical expenses until they are actually incurred. Anderson, supra. Accordingly, such an award is premature at this time.

Likewise, we note that Dr. Hurayt, a psychiatrist who treated Mr. Crews, recommended in June of 2000 that Mr. Crews be provided transportation because he believed that it was too dangerous for him to drive far distances. LWCC has agreed to provide transportation in the past and Mr. Crews is still entitled to transportation to his ongoing medical treatment. He may be entitled to future transportation expenses as well, if they are properly requested. However, like an award of future medical expenses, an award of future transportation expenses is premature. Accordingly, insofar as the trial court’s judgment awards future medical and transportation expenses, the judgment is reversed.

In the third assignment of error, the defendants contend that the worker’s compensation judge was manifestly erroneous and committed legal error in concluding that Jerry Crews “shall be provided with retraining and psychotherapy to determine if he can return to work in a sedentary job.” In addressing the defendants’ first assignment of error, we found that Mr. Crews did not prove that he is unable to work at a sedentary level. Therefore, we conclude that Mr. Crews is not entitled to additional training and psychotherapy to determine if he can work at a sedentary job because this determination has already been made. Accordingly, this ruling by the worker’s compensation judge is reversed.

In the fourth assignment of error, the defendants argue that the worker’s compensation judge committed legal error and was manifestly erroneous in concluding that “defendants have been arbitrary and capricious in their refusal to timely pay the medical bill for the functional capacity evaluation.” LSA-R.S. 23:1201(E) provides that medical benefits shall be paid within 60 days after the 19employer or insurer receives written notice. An employer may be assessed penalties if he refuses or fails to pay benefits or medical expenses that are due. LSA-R.S. 2S:1201(F); Araujo v. Marriott Corporation, 98-1129 (La.App. 5 Cir. 3/30/99), 731 So.2d 432, 437. Statutory provisions permitting assessment of penalties are penal in nature and must be strictly construed. Baker v. Libbey Glass, Inc., 32,748 (La.App. 2 Cir. 5/10/00), 759 So.2d 1007, 1014, writ denied, 00-1676 (La.9/15/00), 768 So.2d 1280.

At trial, Ms. Thea Smith testified that she has been employed by LWCC for ten years and has been assigned to Mr. Crews’ claim for the past two years. She stated that all of Mr. Crews’ bills have been paid within 60 days. She testified that LWCC received a bill for the FCE on December 3, 2002. However, the billing statement was sent back on January 22, 2003 with a request that the provider re: submit the bill with reports and documentation generated in association with the testing. LWCC did not receive the bill with supporting documents until February 25, 2003, which was approximately two weeks before trial. Ms. Smith stated that the bill would be in line for payment at this time.

A worker’s compensation claimant is not entitled to penalties unless the withholding of benefits is found to be arbitrary, capricious, or without probable cause. Robinson v. Integrated Tank Services, Inc., 96-1080 (La.App. 5 Cir. 5/14/97), 695 So.2d 1009, 1011. The record does not support a finding that LWCC was arbitrary and capricious in failing to pay the FCE bill. Although the bill had not been paid by the time of trial, there was no indication that LWCC refused to pay the bill or would not pay the bill at all. Rather, LWCC wanted documentation to support the bill prior to paying it, and payment of the bill in the near future would still be considered timely. Accordingly, we find that the worker’s compensation judge was clearly wrong when she found the defendants to |10be arbitrary and capricious. Therefore, we reverse and vacate the $2,000.00 penalty assessed against the defendants.

DECREE

For the reasons set forth above, we reverse and vacate the worker’s compensation judge’s award of temporary total disability benefits to Mr. Crews, but we reserve his right to seek supplemental earnings benefits. We amend the judgment as to future medical and transportation expenses and find that only those medical and transportation expenses that are ongoing are ordered to be paid. Any award of future medical and transportation expenses that are not ongoing and have not yet been incurred are premature at this time. We also reverse the worker’s compensation judge’s ruling ordering the defendants to provide retraining and psychotherapy for Mr. Crews in order to determine if he can perform sedentary work. Finally, we reverse the trial court’s assessment of a $2,000.00 penalty against the defendants.

REVERSED IN PART; AFFIRMED IN PART AS AMENDED.


author: SOL GOTHARD, Judge.

text:
    Laura S. LEE v. ST. JAMES PARISH COUNCIL.
    No. 03-CA-834.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.

      Daniel E. Becnel, III, Laplace, LA, for Plaintiff/Appellant.
    Richard L. Olivier, S. Jacob Braud, Con-nick & Connick, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and JAMES L. CANNELLA.
   SOL GOTHARD, Judge.

Plaintiff, Laura Lee, appeals an adverse judgment from the Office of Workers’ Compensation that denied her request for reinstatement of indemnity benefits, along with related penalties and attorney fees, and dismissed her claim with prejudice at her cost.

The record shows that claimant, who was employed as a bus driver for St. James Parish, sustained a work-related injury to her lower back on July 16, 2001. A disputed claim for workers’ compensation was filed on March 27, 2002. At the time of the accident claimant was earning $8.00 per hour and working a forty-hour week. She received compensation benefits from July 2001 until September of 2002 in the amount of $426.66 every two weeks. The matter came up for a hearing on March 27, 2003 and judgment was rendered on May 9, 2003.

In brief to this court, claimant assigns four errors for our review. She contends she is entitled to temporary total disability or supplemental earnings benefits, additional medical tests and procedures, and an award for penalties and attorney fees for defendant’s arbitrary and capricious termination of benefits.

At the beginning of the hearing, the parties stipulated that the accident on July 16, 2001 was work-related, and that compensation in the correct amount was paid every two weeks from July 18, 2001 until September 3, 2002. A further stipulation was made that Dr. Lucien Miranne is the claimant’s treating ^neurosurgeon and Dr. John Watermeier is her treating orthopedist. Dr. Chad Millet is defendant’s choice of orthopedist.

At the hearing the court heard testimony of claimant, Laura Lee, who stated that she is a forty-six year old mother of three grown children. Mrs. Lee was employed as a bus driver by St. James Parish since 1991. On the day of the accident, Mrs. Lee was dispatched as a bus driver for handicapped citizens. She had to pick up two individuals, who were confined to wheel chairs, from a nursing home. Mrs. Lee was required to push the wheel chair on the bus lift, wheel the person onto the bus and tie the chair down to prevent injury to the handicapped person. One of the individuals was an overweight man. As Mrs. Lee attempted to maneuver the chair in order to get it into position and tie it down, she felt something pull in her back. She experienced pain in her lower back, arms and legs. The next day, when the pain continued, she filed an accident report.

Mrs. Lee saw her personal physician first, who prescribed muscle relaxers and referred her to Dr. Lucien Miranne, a neurosurgeon. Dr. Miranne ordered an MRI for diagnostic purposes, and epidural injections of steroids. Because the pain continued, Dr. Miranne referred Mrs. Lee to Dr. John Watermeier, an orthopedic surgeon.

Mrs. Lee stated that, at the time of trial her main complaint was pain in her legs. She stated that the right leg is worse than the left, and is painful from the center of her back. She also stated that she has pain in both arms, making is difficult to hold anything. She is currently taking Ce-lebrex and Robaxin every day. Mrs. Lee stated that she was released by Dr. Water-meier to light duty. However, her job was not light duty.

She asserted that she attempted to return to her job, but the Parish would not re-hire her. She testified that the Parish gave her a “pink slip” because the Family Medical Leave Act time had expired. She stated that she can no longer perform 1¿her job as a bus driver, because since the accident she cannot sit in the same position for long periods of time and because of the pain in her arms.

Mrs. Lee also testified that she met with a vocational rehabilitation expert about possible jobs, and further that she has sought suitable employment on her own. She applied to the St. James Parish School Board, the Toddler House Daycare Center, a credit union and a bank in the area, but was unable to secure employment. Mrs. Lee also testified that Dr. Watermeier has recommended pain management therapy, which she would be willing to try, if she had the compensation.

On cross-examination Mrs. Lee explained that her job as a bus driver involved driving children to the local Head Start program in the mornings and driving handicapped people in the afternoons. She also stated that normally the handicapped citizens were smaller than she. She also testified that there is nothing taxing about driving the children in the morning, because she is only the driver and there is another person on the bus to care for the children. In the middle of the day, she would pick members of the general public, who are not handicapped, but need to be transported to the hospital or doctor’s offices. She also explained that the bus is a small one with a hydraulic lift, lowered by the touch of a button. Nothing about the use of the lift or the opening or closing of the door is physically taxing.

She admitted that Dr. Chad Millet opined that she could return to her job as bus driver, but asserts she did not find out about that opinion until “later.” She maintained that she was unable to secure employment because prospective employers would not hire her based on the physical restrictions placed on her by the doctors.

She further conceded that the Parish only had to hold her job for twelve weeks under the Family Medical Leave Act, but it was held for her for ten months. She received notice from the Parish that her job was terminated because it was 1 Snecessary to fill her position. She stated that she received her retirement funds from the parish government retirement system, but denied that she requested the disbursement of the funds. She contends that when she was terminated from her employment, she was automatically retired. She acknowledged that she had the option to roll the funds over to a new retirement plan, but could not because she needed the money to survive. Mrs. Lee also verified that at the time she was terminated, she was still receiving workers’ compensation benefits. She stated that she reapplied to the Parish for employment in August 2002.

Allison Roberts, who handled the workers’ compensation claim, testified that when she took over the claim in May of 2002, claimant was being treated by Dr. Miranne. Dr. Millet was the defendant’s doctor who, after a review of medical records including diagnostic tests, reported that Mrs. Lee could return to work as a mini-bus driver for the parish.

Ms. Roberts forwarded Dr. Millet’s report to Dr. Miranne, who responded on July 1, 2002, that he did not disagree with Dr. Millet’s findings and had nothing further to offer Mrs. Lee.

Ms. Roberts contacted the employer and discovered that Mrs. Lee’s job was no longer available because someone had been hired to take her place. Ms. Roberts initiated vocational rehabilitation services in July of 2002, and continued paying benefits through September 3, 2002. On September 3, 2002 those benefits were terminated based on the doctors’ reports that claimant was able to go back to work. However, the vocational rehabilitation services continued.

After the termination of benefits, Ms. Roberts received a report from Dr. John Watermeier which indicated that a “new accident” changed her status to light duty work. The report did not specify the nature of the new accident, and Ms. Roberts understood that light duty included driving a bus, thus benefits were not reinstated.

LOn cross-examination, Ms. Roberts admitted she did not forward a job description of a school or handicapped bus driver to any of the treating physicians. Thus, she did not know if claimant could have returned to the work she described in her testimony. Ms. Roberts again referred to doctors’ reports which indicated claimant could return to work as a bus driver.

Ms. Roberts acknowledged that on November 12, 2002, a report from Dr. Water-meier requests a cervical MRI and a CT scan, and mentions a new injury to the hand. Further, that report returns claimant to total temporary disability status. However, that was not done because the report indicated a “new injury.” Subsequently on January 28, 2003, Ms. Roberts received notification from Dr. Watermeier that the indication of new injury was a dictation error. However, no further benefits were paid, either in the form of compensation to claimant or payment of medical bills.

When questioned on the report made by Dr. Watermeier dated August 28, 2002 which recommends arthroscopic evaluation of the right knee, Ms. Roberts stated that the procedure was not authorized because it was not associated with the 2001 injury. Further the report released claimant to light duty work status.

In the redirect examination, Ms. Roberts explained that she has denied no requested medical treatment. While there is mention of diagnostic tests in Dr. Water-meier’s report, no request for authorization was received. Ms. Roberts explained that her understanding from the doctors’ reports was that claimant had a back injury. She was never informed of a knee injury, nor has she received any request for authorization to perform the arthroscopic evaluation mentioned in Dr. Water-meier’s report.

The court also heard testimony from Brandyn Landry, the rehabilitation counselor assigned to claimant’s case. She testified that an initial interview was conducted to obtain information regarding claimant’s work history, educational 17background and medical history. After a meeting with claimant, Ms. Landry provided training in job-seeking skills for claimant. Claimant related to Ms. Landry that her former position of bus driver for St. James Parish was no longer available and expressed no desire to return to that job. Consequently, Ms. Landry conducted vocational testing and provided claimant with assistance in using the library computer to locate employment opportunities. With Ms. Landry’s help, Claimant developed a resume. Several employment opportunities were identified. Ms. Landry identified several jobs available for claimant such as bank teller, supermarket cashier, customer service representatives, support clerk or collections clerk, and data entry clerk.

Ms. Landry stated that initially claimant was very active in the vocational rehabilitation process. Claimant was primarily interested in a bookmobile driver position with St. James Parish that did not materialize because she had withdrawn her retirement benefits, which precluded her from further employment with the Parish. Claimant did apply for the bank teller position available at Gramercy Federal Credit Union. As time progressed, claimant was not as enthusiastic; but, she did continue to do some job searching.

Ms. Landry explained that she contacted prospective employers to confirm that claimant had applied for the job and to discover the reason she was not hired. None of the employers gave physical limitations as a reason for not offering claimant the available position. Claimant did not follow up on the supermarket cashier job, or on any jobs in Baton Rouge. The last employment opportunity claimant discussed with Ms. Landry was a daycare position in December of 2002. As of that time, claimant was still looking for a light duty job.

The record also contains reports from various doctors, including Dr. Watermeier’s report of November 12, 2002 in which his assessment was “sacroilitis and lumbar disc syndrome, cervical syndrome and trigger finger of the | bright third finger.” The report places claimant on total temporary status until February 18, 2008. It is that report that indicates a new injury was sustained. On November 21, 2002, Dr. Watermeier notified counsel for claimant of the error in dictation that implied the injury was from a new accident. That report also explains that claimant burned her hand as a child and had no problem with it until the work related accident in July of 2001.

The record also contains Dr. Watermeier’s report made after the February 18, 2003 visit. In that report Dr. Watermeier diagnosed claimant with “lumbar disc syndrome, internal derangement right knee with residual symptoms.” The doctor also stated that treatment is prescription medications and discharge to pain management. He further stated that surgery in not recommended, and further diagnostic tests are not needed. Prognosis is fair and employment status is light duty.

As previously stated, claimant assigns four errors for our review. In argument, claimant avers the court committed a legal error in refusing to award benefits based on willful misrepresentation. Accordingly, claimant urges this court to review the record de novo. Because we find claimant’s argument to be without basis, we review the judgment under the manifest error/clearly wrong standard. Support for this position is found in the judgment which states in pertinent part that the court determined claimant did not violate La.R.S. 23:1208.

LAW

To establish a right to receive temporary or permanent disability benefits, a claimant must show by clear and convincing evidence that she is unable to engage in any type of employment. La. R.S. 23:1221(1). To meet this burden, objective medical evidence is required. Greis v. Lake Charles Memorial Hosp., 97-1258 (La.App. 3 Cir. 3/6/98), 709 So.2d 986, writ denied, 98-0937, 98-0938 (La.5/15/98), 719 So.2d 467. The trial court must weigh all the evidence, medical and Islay, in order to determine if the plaintiff has met his burden. This factual finding should be given great weight and should not be overturned absent manifest error. Bailey v. Smelser Oil & Gas, Inc., 620 So.2d 277, 280 (La.1993).

Claimant makes two arguments regarding error in the trial court’s finding that she did not meet her burden of proof in regard to additional benefits. The first relates to temporary total disability benefits and the second relates to earnings benefits (SEBs) pursuant to La. R.S. 23:1221(3)(a).

We find claimant’s argument regarding the defendant’s failure to pay benefits from November 12, 2002 through February 18, 2003 valid. The record shows that claimant proved, by uncontroverted medical evidence, that she was placed on temporary total disability status as of November 12, 2002 with the introduction of Dr. Watermeier’s records. We are not persuaded by defendant’s argument that, because claimant was working with the rehabilitation expert at the time to find employment, she failed to meet her burden under the above cited law. Therefore, we find the trial court committed manifest error in its finding that claimant did not meet her burden of proof that she is entitled to temporary total disability benefits from November 12, 2002 through February 13, 2003. Thus, we reverse that portion of the judgment.

Claimant also asserts she is entitled to supplemental earnings benefits . (SEBs) pursuant to La. R.S. 23:1221(3)(a). The Louisiana Supreme Court, in Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, summarized the law in this area. In Banks, the court explained that the initial burden of proof for an award of SEBs is on the claimant to prove by a preponderance of the evidence that the injury resulted in her inability to earn 90% of her pre-injury earnings. Once that burden is met, it shifts to the employer. In order to defeat the claim, an employer must show that the claimant is physically able to perform a certain job and that the job was available to the claimant in her | mcommunity or reasonable geographic region. Actual job placement is not required. Id., 696 So.2d at 556.

In the instant case we find no manifest error in the finding that claimant did not meet her initial burden of proof that she is unable to earn 90% of her pre-injury earnings. We1 find sufficient support in the record for that finding. Accordingly, we find no merit in this assignment.

In the next assignment, claimant argues the court erred in failing to award penalties and attorney fees. We have reviewed that argument in light of the record before us, but find no abuse of discretion. La. R.S. 23:1201.2 provides that employers are liable for such awards only when the denial or discontinuance of the benefits is arbitrary and capricious. We do not find that the failure to pay temporary total benefits, as described above, rose to the level of arbitrary and capricious. The report that advised the defendant of the classification made by Dr. Watermeier on November 12, 2002 indicated a new injury to the hand and seemed to be unrelated to the accident in question herein. It was not until January 28, 2003, that defendant received the corrected . report. Under these circumstances we cannot find the trial court to be manifestly erroneous or clearly wrong-in its finding that defendant was not arbitrary and capricious.

Finally, claimant argues defendant should be ordered to pay for diagnostic tests ordered by Dr. Watermeier. Given the doctor’s last report, which stated that no surgery or diagnostic tests were needed, we find no merit in this assignment. However, we do note that Dr. Watermeir noted that claimant could benefit from pain management. Because there is no indication in the record that any claim for such treatment has been presented to defendant for authorization, we cannot rule on the failure to pay for the treatment.

For thé foregoing reasons, that portion of the judgment that denied temporary total disability benefits from November 12, 2002 through February 28, ln2003 is reversed, and defendant is hereby ordered to pay claimant accordingly. In all other respects, the judgment is affirmed.

AFFIRMED IN PART; REVERSED IN PART AND RENDERED.


author: THOMAS F. DALEY, Judge.

text:
    Charlotte Trahan SAVOIE v. Jeffery SAVOIE. Jeffery F. Savoie v. Charlotte Trahan Savoie.
    Nos. 03-CA-893, 03-CA-894.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.

      Steven F. Griffith, Sr., Destrehan, LA, Counsel for Plaintiff/Appellant.
    Richard M. Michalczyk, Cronvich, Wambsgans & Michalczyk, Metairie, LA, Counsel for Defendant/Appellee.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and WALTER J. ROTHSCHILD.
   THOMAS F. DALEY, Judge.

The plaintiff, Charlotte Trahan Savoie, filed a Petition to Annul the matrimonial agreement between her and her former husband, Jeffery Savoie. She has appealed the grant of summary judgment in favor of Jeffery Savoie. For the reasons that follow, we reverse.

FACTS:

The parties were married on July 22, 1989 and divorced on April 29, 2002. While the divorce proceedings were pending, Charlotte Trahan Savoie filed a Petition to Annul a matrimonial contract that was purportedly signed by the parties on July 21, 1989 and filed into the public records on October 11, 1991. In her verified petition, Charlotte Trahan Savoie alleged that the document was not valid because it was not executed before a notary and was not an act under private signature because it was not acknowledged before a notary. In the alternative, 13Charlotte Trahan Savoie alleged she was coerced into signing the contract the day prior to her wedding.

Jeffery Savoie filed a Motion for Summary Judgment claiming that the matrimonial agreement was entered into between the parties and duly witnessed, notarized, and recorded by the notary. A copy of the matrimonial agreement was attached to the motion. The agreement provides that the parties will not have a community of acquets and gains existing between them, and that certain property of Jeffery Savoie will remain as separate. The document is signed by Jeffery Savoie, Charlotte Trahan (Sa-voie), two witnesses and a notary. In support of his Motion for Summary Judgment, Jeffery Savoie attached affidavits from the two witnesses — Simon F. Savoie, Jr. and Brian Savoie. Simon F. Savoie, Jr. attests that he witnessed both parties sign the document, witnessed the execution of the document by Brian Sa-voie and was present at the time the notary signed the document. He further attests that the document was provided to Charlotte Trahan (Savoie) five days prior to the marriage ceremony. Brian Savoie attests that he was present at the time Charlotte Trahan (Savoie) executed the document and witnessed the signing by Simon F. Savoie, Jr., the notary, and Jeffery Savoie. He further attests that both parties had an opportunity to discuss the document with their respective attorneys several days prior to the .signing. An affidavit by defendant, Jeffery Savoie, was also attached to the motion. Jeffery Savoie attests that he was present when both witnesses, the notary, and Charlotte Trahan (Savoie) signed the document. He further attests that Charlotte Trahan (Savoie) was furnished with the document five to seven days prior to the marriage ceremony for a review by her and her attorney. Jeffery Savoie further attests that the notary who executed the document is now deceased.

The record does not contain a Memorandum in Opposition by Charlotte Trahan Savoie.

|4The matter was set for hearing. At the hearing, Jeffery Savoie argued that the affidavits prove that the document was executed before a notary and two witnesses and was later recorded with the Clerk of Court.

In response, Charlotte Trahan Savoie’s attorney stated that her previous attorney, Charles Romano, had a conversation with the now deceased notary, who admitted that he was not present when the document was signed, nor did he recall if the witnesses were present when the document was signed. Charlotte Trahan Sa-voie presented an affidavit to this effect and offered the affidavit for admission into evidence. Jeffery Savoie objected to the admission of this affidavit since it was not served on the opposing party four days prior to the hearing as required by La. C.C.P. art. 966. The trial judge did not rule on the Jeffery Savoie’s objection, but the affidavit is contained in the record.

At the conclusion of the hearing, the trial judge took the matter under advisement. She then rendered judgment, without reasons, granting the Motion for Summary Judgment.

LAW AND DISCUSSION:

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991). Summary judgment should be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966. The burden is on the moving party to show that no genuine issue of material fact exists. La. C.C.P. art. 966(C)(2). If the nonmoving party fails to establish that he will be able to IfiSatisfy his evidentiary burden at trial, there is no genuine issue of material fact, and summary judgment should be granted. La. C.C.P. arts. 966 and 967.

A decision as to whether or not to grant a Motion for Summary Judgment can only be made with reference to the substantive law applicable to the case. Sun Belt Constructors, a Div. of MCC Constructors, Inc. v. T & R Dragline Service, Inc., 527 So.2d 350, 352 (La.App. 5 Cir.1988).

La.C.C. art. 2331 provides:

A matrimonial agreement may be executed by the spouses before or during marriage. It shall be made by authentic act or by an act under private signature duly acknowledged by the spouses.

The record contains an affidavit by plaintiffs former attorney, Mr. Romano. The affidavit states that he spoke to John Hattier, the notary on the matrimonial agreement, prior to Mr. Hattier’s death. Mr. Romano attests that Mr. Hattier “admitted to me that it was in fact true that Charlotte Trahan had not executed the marriage contract in his presence.”

Defendant claims that this affidavit is inadmissible hearsay. While we make no finding as to the admissibility of Hattier’s statement to Mr. Romano at trial, we find that his affidavit is sufficient to show that the material issue of whether the matrimonial agreement was executed or acknowledged in front of a notary is in dispute.

Defendant argues the affidavit by Mr. Romano was not provided to him four days prior to the hearing on this matter as required by C.C.P. article 966(B) and Rule 9.10 of the district court rules. Plaintiff asserts the affidavit was timely provided to defendant. The affidavit appears at page 18 of the record. The affidavit does not contain a stamp to indicate the date it was filed into the record, but the document following the affidavit was filed into the record on March 14, 2002. However, there is nothing in the record to indicate the date the affidavit was |fiserved on opposing counsel. Based on the record, we are unable to determine when the affidavit was served on opposing counsel.

The jurisprudence has recognized that the trial court has discretion to permit an opposing affidavit to be filed untimely, provided the other party is not prejudiced by the late filing. Semar v. Continental Casualty Insurance Co., 01-1377 (La.App. 3 Cir.6/19/02), 820 So.2d 650. We find that if the affidavit was not provided to defendant in a timely manner, the defendant was not prejudiced by this affidavit because the record indicates that the defendant was aware of the information contained in the affidavit as evidenced by a letter from Mr. Romano to defendant’s attorney dated April 26, 2001. The letter states that Mr. Romano had spoken to Mr. Hattier who “confirmed Charlotte’s contention that she did not execute the Agreement in his presence.”

CONCLUSION:

For the foregoing reasons, we find that the trial judge erred in granting summary judgment because there are material issues of fact in dispute that will require credibility determinations by the trier of fact at a trial on the merits. Accordingly, the judgment of the trial court is reversed.

REVERSED.