author: i ¡.McClendon, j.

text:
    Hubert A. SEVERIO v. J.E. MERIT CONSTRUCTORS, INC.
    No. 2002 CA 0359.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.

      Henri M Saunders, Metairie, for Plaintiff/Appellee Hubert A. Severio.
    Stephen H. Vogt, Baton Rouge, for Defendant/Appellant J.E. Merit Constructors, Inc.
    Before: FOIL, McCLENDON, and KLINE, JJ.

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

   i ¡.McClendon, j.

This appeal arises from an action for workers’ compensation in which the claimant was found totally and permanently disabled. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

In January of 1989, forty-five-year-old Hubert A. Severio, a welder, was working in the course and scope of his employment with J.E. Merit Constructors, Inc. (hereinafter “Merit”), when he injured his back. Mr. Severio subsequently underwent a bilateral lumbar decompression with lamino-tomy and foraminotomy at L4-5 and L5-S1 on July 26, 1989, and a second surgical decompression on January 14, 1992, to treat ruptured discs in his spine. Since that time, Mr. Severio has received treatment with epidural steroid injections, myoneural injections, and facet/sacroiliac joint blocks in attempts to alleviate his chronic pain.

Mr. Severio originally was paid temporary total disability benefits, but was reclassified to receive supplemental earnings benefits in June of 1994, though the amount of his monthly indemnity benefit remained the same. On July 4, 2000, Merit ceased paying workers’ compensation indemnity benefits, claiming the ten-year maximum time period for payment of supplemental earnings benefits had expired.

On September 21, 2000, plaintiff filed a claim for workers’ compensation with the Office of Workers’ Compensation Administration (hereinafter “OWC”). A hearing was held before an OWC judge on July 18, the date of trial, July 18, 2001, and the matter was taken under advisement. Oral reasons for judgment were given on August 10, 2001 and judgment was signed on September 28, 2001 by the OWC judge, rendering judgment in favor of plaintiff, as follows: finding plaintiff totally and permanently disabled from |sthe date of trial, July 18, 2001, as defined by LSAR.S. 23:1221(2) as it read at the time of the January 18, 1989 accident; finding plaintiff entitled to reinstatement of the maximum amount of disability benefits applicable for an accident that occurred on January 18, 1989 from the time benefits were terminated on July 3, 2000; finding plaintiff temporarily and totally disabled through June 1, 1994, following completion of a functional capacity evaluation, and finding plaintiff thereafter entitled to supplemental earnings benefits until the July 18, 2001 trial; finding defendant did not act in an arbitrary and capricious manner in terminating plaintiffs indemnity benefits on July 3, 2000 and rejecting plaintiffs claim for penalties and attorney’s fees; finding defendant arbitrarily and capriciously denied medical care to plaintiff but rejecting plaintiffs claim for penalties and attorney’s fees as unauthorized under the law; and, granting defendant’s claim for recognition of a social security offset as of December 20, 2000.

From this judgment, Merit appealed and on appeal asserts the following assignments of error:

(1) The [OWC] committed legal error in awarding total and permanent disability benefits as of the time of trial.
(2) The [OWC] committed legal error in its alternative finding that supplemental earnings benefits are payable from June 1, 1994 for 520 weeks without a credit for temporary, total disability benefits paid after January 1,1990.

DISCUSSION AND ANALYSIS

An employee who receives personal injury by accident arising out of and in the course of his employment shall be paid compensation, if not otherwise eliminated from by the workers’ compensation provision, by his employer in the amounts, on the conditions, and as designated by |423:1021 et seq. See LSA-R.S. 23:1031. “Accident” means an “unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” LSA-R.S. 23:1021(1).

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

In the instant case, there was no dispute that plaintiff suffered an accident in the course and scope of his employment with the defendant; the issue contested was the extent of plaintiffs disability. “[C]ompen-sation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.” LSA-R.S. 23:1221(2)(c).

|fiThe OWC judge found that Mr. Sever-io was totally and permanently disabled at the time of the trial and as such entitled to said benefits. The oral reasons given by the OWC judge for this ruling were as follows:

I’m going to address Mr. [Severio’s] status first. The first issue is going to be whether or not he is disabled; and if so, in what category, or in what capacity. I find that Mr. [Severio] is permanently and totally disabled. I base this on not only his physical disabilities, as found in his medical records, but also I am finding under the 1226(D) [s]tatute in place at the time of his accident— and I’m reading the [s]tatute as it was in 1989— I find that there is no reasonable probability that with training or education he could be rehabilitated to where he could achieve suitable gainful employment. I find that it’s not in his best interest to try to undertake that in light of the fact that it would take so much to get him there and because of his physical condition I don’t think that he could stand it, and I don’t think that he could do it. He has a third grade education; formally, a third grade education. He can write very little. The testimony I got is pretty much his name, and he cannot read. He can read very little. He cannot read a newspaper. He can read signs, but not sit down and be able to read a book or read anything.
He has been very lucky in that he has been able to work in very heavy labor manual jobs which have not required him to do much in the way of reading. He has been a welder. He has been a logger. He’s been a farmer. He worked on a waterwell rig. These were all labor intensive jobs and he didn’t have to do much in the way of reading. All he had to do was have a good strong body and do what he was told. To be a welder it requires him to do measurements, but it is still a very physically intensive job. His restrictions now are so severe in terms of what he physically cannot do, that I am of the opinion that unless he was a scholar, someone who could do pretty much sedentary scholarly type work, and even then I think he would have a hard time because he cannot, based upon his medical information' — - and the day of the trial he wiggled around here all day. He had to stand up or sit down and move around. As the voc-rehab person stated it is true I did not see him lay down at any time during the trial, but I did not expect him to— he is very much a gentleman [sic] type person. I would not have expected him to decide in my Courtroom to lay down on the floor even if he felt that he should for his own comfort to try to alleviate pain; and he had just had an injection, injections that he has to have every two to three months, however it had not really had a chance to take effect. Yes, he can drive very short distances; but quite frankly, everybody is in agreement that he really shouldn’t be driving because of the narcotics that he is on for the pain, the medication that he is on for the pain. He is in | ^better condition than some people I have seen; but I still do not, in terms of his ability to use his hands, he can use his hands, but I don’t think his condition would allow him to sit at a computer or sit at a desk for very long, and I cannot imagine him being able to do work when he can’t sit still long enough to complete a task long enough for 20 minutes or so at a time, and then get up move around, try to come back to it, and any employer who tried to hire him would have to be cognizant of the fact that as his pain tolerance grows and getting closer to the need for the time for the injection he is going to be out, and then the injection is going to have him out for 24 hours, no driving, no going anywhere for 24 hours after the injection. So, if the next day is a workday, he’s got to be off that day. There are just too many impediments in my mind to his being able to [be] employable in any manner. This is especially based on not only physical condition but also his abilities, his lack of education and lack of training for anything other than heavy manual labor.
He has a very bad back injury. The medication that he has been on has been causing him problems with his stomach. He has had gallbladder problems, and has stomach problems as a result of the medication. He is getting steroid injections [bi]-monthly, sometimes trimonthly, in order to continue to live on a daily basis and even do what little he does at home which is not much according to his wife and Mr. [Severio]. He really can’t do much. Even if he tries to assist in the yard for 15 or 20 minutes, that’s it. That’s a wrap. He’s done for the day. That is not somebody who is employable. Sure, the physicians gave him restrictions according to what his physical abilities are, and that’s not taking into consideration the pain. It’s what he physically may be able to do, and you put that together with the pain and I can’t escape it. Sure, if you read the jurisprudence it will say that they should have to be able to work in pain; and a little bit of pain, anybody can work in....
But excruciating, intolerable pain, that requires you to get epidural injections on a bi to trimonthly basis that requires you to stay on medication all the time and won’t allow you to function is an unemployable situation. It is a Permanent and Total Disability situation, especially when you put that together with his lack of education....

On appeal, the factual findings of an OWC judge are subject to the same standard of review as in other cases; i.e., a trial court’s finding of fact may not be set aside on appeal unless there is no reasonable factual basis for the finding and the finding is clearly wrong (manifestly erroneous). See Bolton v. B E & K Construction, 2001-0486 at p. 7, 822 So.2d at 35; McCray v. Delta Industries, Inc., 2000-1694, p. 4 (La.App. 1 Cir. 9/28/01), 809 So.2d 265, 269. See also Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). If the trier of fact’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse. Consequently, when there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous. Bolton v. B E & K Construction, 2001-0486 at p. 7, 822 So.2d at 35, citing Sistler v. Liberty Mutual Insurance Company, 558 So.2d 1106, 1112 (La.1990).

The finding of disability within the framework of the workers’ compensation law is a legal rather than a purely medical determination. Therefore, the question of disability must be determined by reference to the totality of the evidence, including both lay and medical testimony. Ultimately the question of disability is a question of fact, which cannot be reversed in the absence of manifest error. Brown v. Churchill & Thibaut, Inc., 93-1216, p. 7 (La.App. 1 Cir. 5/20/94), 637 So.2d 764, 768.

In Comeaux v. City of Crowley, 2001-0032 (La.7/3/01), 793 So.2d 1215, the supreme court applied a “totality of the circumstances” test in determining entitlement to permanent and total disability, finding a fifty-five-year-old man permanently and totally disabled when his physical restriction to sedentary activities combined with a failed attempt to rehabilitate or re-train the claimant in accordance with LSA-R.S. 23:1226 rendered the claimant unemployable. In so holding, the court stated that both the physical ability of the claimant to function in the workplace and the employee’s lack of ability to be educated or re-trained should be considered in deciding whether he had discharged his burden of proving by clear and convincing evidence permanent and total disability. Comeaux v. City of Crowley, 2001-0032 at p. 15, 793 So.2d at 1224.

In France v. A & M Wood Company, 566 So.2d 106 (La.App. 2 Cir.1990), the Second Circuit likewise found permanent, total disability had been established for a forty-nine-year-old manual laborer with a sixth-grade education, who was able to read and write “a little.” As a result of his injury, the claimant was unable to remain sitting or standing for very long, was restricted from lifting anything substantial, had to change his physical position frequently, and took medication every day simply “to live,” according to his doctor. The France court found it appropriate to consider not only the extent of the claimant’s physical disability but also his inability to be rehabilitated. See France v. A & M Wood Company, 566 So.2d at 110-11.

At the trial of this matter, the plaintiff testified extensively as to the amount of pain which he endures on a daily basis and that he can attain a measure of relief only from the periodic injections that he undergoes with Dr. Christopher Lew. Mr. Severio testified that the injections for pain do not alleviate all of his pain and are not frequent enough to prevent the return of the majority of his symptoms in the interim between injections. The record further established that Mr. Severio had only a third-grade education, was barely able to read and write, and was unable to perform any job that required reading or writing. In the past, he had only worked in manual labor jobs, such as, farming, logging, drilling, or welding. Further, the record established that Mr. Severio attempted adult literacy classes on his own after the accident, but was not successful. Mr. Severio’s testimony was corroborated by that of his wife and was uncontradicted in this regard.

The testimony of defendant’s vocational rehabilitation consultants only established that efforts were made to ascertain Mr. Severio’s physical and educational status, but no testimony was produced that any attempt [9was made to rehabilitate or retrain Mr. Severio over the approximate twelve-year period from the date of his injury until the date of trial. Mr. Severio was classified as being capable of only sedentary to light work and then with numerous restrictions, such as not sitting for more than thirty minutes at a time.

Dr. Lew’s July 16, 2001 status report stated that Mr. Severio had post lumbar laminectomy pain syndrome with components of axial and radicular pain, which he classified as a chronic pain syndrome arising from post-traumatic degenerative spinal changes. Dr. Lew stated that this condition was permanent in the sense that there was no curative intervention available, but that plaintiffs treatment plan consisted of: activity modification (avoidance of activities that worsened pain and continuation of activities that maintained flexibility and basic strength); medications (analgesic opiate plus medications to control side effects); and injection therapy. Dr. Lew reported that Mr. Severio was restricted from bending, climbing, crawling, crouching, and stooping. He further stated that prolonged standing, sitting, and walking must be limited to thirty minutes. Because Mr. Severio was taking opiate analgesics intermittently, he was restricted in his ability to drive vocationally. Dr. Lew also stated that Mr. Severio could lift and carry up to ten pounds frequently and twenty pounds rarely, but that he was unable to lift greater than twenty pounds. Mr. Severio was permitted to use his upper extremities for repetitive movement, though not his lower extremities, but was restricted from prolonged use of his upper extremities above the shoulders, though occasional reaching was allowed. Dr. Lew concluded that there was a possibility that Mr. Severio could tolerate part-time work at a sedentary position with restrictions and with allowances for frequent position changes.

110As set forth in LSA-R.S. 23:1226(D), before a claimant is found to be permanently and totally disabled, it shall be determined “whether there is reasonable probability that, with appropriate training or education, the injured employee may be rehabilitated to the extent that such employee can achieve suitable gainful employment and whether it is in the best interest of such individual to undertake such training or education.” LSA-R.S. 23:1226(D); Comeaux v. City of Crowley, 2001-0032 at pp. 5-6, 793 So .2d at 1218.

After a thorough review of the evidence presented in the instant case, we are unable to say the OWC judge erred in determining that, based on Mr. Severio’s physical restrictions, the failed attempt at rehabilitation and/or re-training, and his limited education and inability to be educated, he was permanently and totally disabled. We note, as did the OWC judge and the supreme court in Comeaux v. City of Crowley, 2001-0032 at p. 15 n. 10, 793 So.2d at 1224 n. 10, that a classification of permanent, total disability can always be modified should circumstances change.

Having disposed of the appeal on this basis, we find it unnecessary to address defendant/appellant’s remaining assignment of error.

CONCLUSION

For the reasons assigned herein, the judgment of the Office of Workers’ Compensation is affirmed. All costs of this appeal are to be borne by defendanVappel-lant herein, J.E. Merit Constructors, Inc.

AFFIRMED.

      . With respect to this ruling the OWC judge found alternatively that "[i]n the event it is deemed by the Court of Appeal that the claimant was not totally and permanently disabled as of the date of trial, in that event the court awards supplemental earnings benefits from June 2, 1994, for a period of 520 weeks, without a credit for temporary, total disability benefits paid before June 1, 1994.”

      . The burden of proof for permanent, total disability has not changed under LSA-R.S. 23:1221 since the time of Mr. Severio’s 1989 accident, although we note that, for temporary total disability, the standard of proof in 1989 was by a preponderance of the evidence.


source: Caselaw Access Project

author: | yPARRO, J.

license: Public Domain

text:
    Saleh IBRAHIM and Samar Ibrahim (Individually and on Behalf of Their Minor Children, Mohammad Ibrahim, Ayah Ibrahim, and Habiba Ibrahim) v. Corey Leigh HAWKINS and State Farm Mutual Automobile Insurance Company.
    No. 2002 CA 0350.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.

      Locke Meredith, Baton Rouge, for Plaintiffs-Appellees-Appellants Saleh Ibrahim, et al.
    Robert J. Burns, Jr., Atkinson, Perry, Atkinson & Balhoff, L.L.C., Baton Rouge, for Defendanb-Appellanb-Appellee Allstate Indemnity Company.
    Before: PARRO, McDONALD, CLAIBORNE, JJ.

      . Judge Ian W. Claiborne, retired from the Eighteenth Judicial District Court, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   | yPARRO, J.

Allstate Indemnity Company (Allstate), which provided uninsured/underinsured motorist (UM) insurance coverage to Saleh Ibrahim, appeals a judgment finding it was arbitrary and capricious in its handling of his claim and imposing statutory penalties and attorney fees. Ibrahim answered the appeal, seeking additional attorney fees and legal interest. We amend and, as amended, affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Ibrahim was injured in an automobile accident on February 4, 1999. On January 28, 2000, suit was filed against the driver of the other vehicle, Corey Leigh Hawkins, and his liability insurer, State Farm Mutual Automobile Insurance Company (State Farm). In a supplemental petition filed August 1, 2000, Ibrahim added his UM carrier, Allstate, claiming Hawkins was un-derinsured and seeking payment under his UM policy. Ibrahim claimed he had provided Allstate sufficient proof of loss, but it had arbitrarily, capriciously, and without probable cause refused to timely tender a reasonable amount under the UM coverage. He sought penalties and attorney fees from Allstate, pursuant to Louisiana Revised Statutes 22:658 and 22:1220.

Ibrahim’s policy with Allstate provided UM limits of $50,000 and medical payments coverage of $5,000; it was not an

“economic-only” policy. Ibrahim’s most significant injuries were a broken rib and a right shoulder injury that eventually required arthroscopic surgery; he also lost time at work and underwent physical and psychological therapy. During the course of Ibrahim’s medical treatments, Allstate tendered its $5,000 med-pay limit and eventually tendered another $29,569 in UM payments. State Farm paid its policy limits of $25,000, and the claims against it and Hawkins were dismissed. The case went to trial against Allstate for additional UM payments, penalties, and attorney fees.

After trial, the court found Ibrahim had proven damages considerably in excess of his UM policy limits, as follows:

hPast Medical Expenses $ 31,750.22
Past Lost Wages 22,400.00
General Damages of Saleh Ibrahim Mental Anguish and Distress 10,000.00
Shoulder 50,000.00
Fractured Rib 10,000.00
Soft Tissue: Loss of Consortium for Samar Ibrahim 5,000.00 5,000.00
Loss of Consortium for Children 5,000.00
TOTAL $ 139,150.22

The court further found that this amount was subject to the following credits:

State Farm Liability Limits 25,000.00
Allstate Med-Pay Tender made 4/24/00 5,000.00
Allstate UM Tender made 9/26/00 19,608.00
Allstate UM Tender made 3/09/01 9,961.00
TOTAL CREDITS $ 59,569.00

The judgment ordered Allstate to pay Ibrahim $20,431, that being the remaining balance under its UM policy limits after deducting the above credits. The court also imposed penalties and attorney fees on Allstate, as follows:

Penalties $ 40,862.00
Attorney Fees (1/3 of net judgment, $79,581.22) 26,527.07
TOTAL $ 67,389.07

The judgment further awarded legal interest on “said judgment” from the date of judicial demand, January 28, 2000, until paid; legal interest on the penalties and attorney fees from the date of the signed judgment, October 11, 2001; and all court costs.

In this appeal, Allstate claims the court erred in finding it was arbitrary and capricious, in assessing statutory penalties, and in calculating attorney fees. Ibrahim answered the appeal, seeking additional attorney fees and court costs for the defense of the appeal, plus legal interest from date of judicial demand on the total proven damages in the amount of $139,150.22 until the time the full UM policy limits are paid.

APPLICABLE LAW

Louisiana Revised Statute 22:658 mandates the imposition of penalties and ^attorney fees when an insurer fails to pay its insured in accord with the statutory provisions. It provides, in pertinent part, as follows:

A. (1) All insurers issuing any type of contract ... shall pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss from the insured or any party in interest.
B. (1) Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor, ... when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of ten percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, ... together with all reasonable attorney fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, ten percent of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney fees for the prosecution and collection of such amount.

Louisiana Revised Statute 22:658 is a penal statute; as such, it must be strictly construed. Vaughn v. Franklin, 00-0291 (La.App. 1st Cir.3/28/01), 785 So.2d 79, 91, writ denied, 01-1551 (La.10/5/01), 798 So.2d 969. It subjects an insurer, when it is arbitrary or capricious in failing to unconditionally tender the undisputed amount within thirty days of satisfactory proof of loss, to the mandatory imposition of penalties and attorney fees for the collection of such amount. See Calogero v. Safeway Ins. Co. of Louisiana, 99-1625 (La.1/19/00), 753 So.2d 170, 174. A “satisfactory proof of loss” is that which is sufficient to fully apprise the insurer of the insured’s claim. To establish a “satisfactory proof of loss,” the insured must show that the insurer received sufficient facts to fully apprise the insurer (1) that the owner or operator of the other vehicle involved in the accident was uninsured or underinsured; (2) that he was at fault; and (3) that such fault gave rise to damages. The information must also indicate the extent of those damages. See McDill v. Utica Mut. Ins. Co., 475 So.2d 1085, 1089 (La.1985); Fontana v. Louisiana Sheriffs’ Auto. Risk Program, 96-2752 (La.App. 1st Cir.6/20/97), 697 So.2d 1087, 1039. When satisfactory proof of loss has been made and the insured has made a showing that the insurer will be liable for some general damages, the insurer must tender the reasonable amount that is due. McDill, 475 So.2d at 1091. This amount must be tendered unconditionally, not in settlement of the case, but to show good faith and the insurer’s compliance with its contractual duties. The amount Udue is that amount over which reasonable minds could not differ. McDill, 475 So.2d at 1091-92.

In determining an award of attorney fees to be assessed under LSA-R.S. 22:658, the trial court should consider the services needed to effect recovery, the degree of professional skill and ability exercised, the volume of work performed, the time devoted to the case, the result obtained, the amount in controversy, the novelty and difficulty of the questions involved, and the percentage fixed for attorney fees in the plaintiffs contract. Khaled v. Windham, 94-2171 (La.App. 1st Cir.6/23/95), 657 So.2d 672, 680, writ dismissed, 95-1914 (La.11/1/95), 661 So.2d 1369. The trial court must base its award of attorney fees on the attorney’s efforts expended for “the prosecution and collection of’ the loss, that being the amount of any claim due the insured, rather than on the total recovery awarded. See Desoto v. Balbeisi 02-0169 (La.App. 1st Cir.12/20/02), 837 So.2d 48, 52. The trial court’s conclusion with respect to the assessment of penalties and attorney fees is, in part, a factual determination and should not be disturbed in the absence of a finding that it was manifestly erroneous. Bauer v. White, 532 So.2d 506, 509 (La.App. 1st Cir.1988).

Another statute allowing a court to impose penalties for an insurer’s failure to deal with its insured in good faith is LSA-R.S. 22:1220, which states, in pertinent part:

A. An insurer ... owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant, or both. Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach.
B. Any one of the following acts, if knowingly committed or performed by an insurer, constitutes a breach of the insurer’s duties imposed in Subsection A:
(5) Failing to pay the amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss from the claimant when such failure is arbitrary, capricious, or without probable cause.
C. In addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater.

1 fiUnder this statute, when an insurer is found to have acted arbitrarily, capriciously, or without probable cause, the insurer shall be liable for damages sustained as a result of the breach, and may be assessed penalties not to exceed two times the damages sustained or five thousand dollars, whichever is greater. LSA-R.S. 22:1220(A) and (C); see Calogero, 753 So.2d at 173.

There is a close relationship between the conduct described in LSA-R.S. 22:658(B)(1) and the conduct described in LSA-R.S. 22:1220(B)(5). See Theriot v. Midland Risk Ins. Co., 95-2895 (La.5/20/97), 694 So.2d 184, 192 n. 14. In fact, the conduct is virtually identical, i.e., failure to timely pay a claim after receiving satisfactory proof of loss when that failure to pay is arbitrary, capricious, or without probable cause. The primary difference is that under LSA-R.S. 22:658(A)(1) and (B)(1), the insurer must pay the claim within 30 days of receiving satisfactory proof of loss, rather than the longer 60-day period allowed under LSA-R.S. 22:1220(B)(5). See Calogero, 753 So.2d at 174. Where LSA-R.S. 22:1220 provides the greater penalty, it supersedes LSA-R.S. 22:658, such that the insured cannot recover penalties under both statutes. However, because LSA-R.S. 22:1220 does not provide for attorney fees, the insured is entitled to recover the greater penalties under its provisions and attorney fees under LSA-R.S. 22:658 for its insurer’s arbitrary or capricious failure to timely pay his claim after receiving satisfactory proof of loss. See Calogero, 753 So.2d at 174.

If an appellee appropriately requests an increase in attorney fees for the appeal, they are usually awarded, provided the appellant obtains no relief and the appeal has necessitated additional work on the part of appellee’s counsel. See Loup v. Louisiana State School for the Deaf, 98-0329 (La.App. 1st Cir.2/19/99), 729 So.2d 689, 694.

ANALYSIS

The parties stipulated that Alstate was entitled to credit for the $25,000 State Farm payment of its liability limits and the $5,000 med-pay and $29,569 UM payments tendered by Alstate on September 26, 2000, and March 9, 2001. Alstate does not |7contest the amount of the damages found by the trial court, but contends the court erred in finding its handling of Ibra-him’s claim was arbitrary and capricious and in its computations of statutory penalties and attorney fees.

Arbitrary and Capricious

The evaluation of Alstate’s handling of Ibrahim’s claim is based on the timeliness and reasonableness of its actions. Therefore, the key facts relate to what it knew about his injuries and treatments, when it became aware of that information, and how it responded.

The accident occurred February 4, 1999; Ibrahim was treated immediately at a hospital emergency room and sought followup treatment within a week from his personal physician, Dr. Donald Fonte, for continued pain in his neck, lower back, knee, chest, and right shoulder. An MRI at the end of February showed right shoulder impingement; an x-ray in late March showed a fracture of the 10th rib. Conservative treatment, including steroid injections, pain medications, and physical therapy, did not relieve his shoulder pain and limitation of motion, although his other problems resolved after several months. In July, Dr. Fonte referred Ibrahim to an orthopedist, Dr. Mark Field, who concluded that arthroscopic surgery on the right shoulder would be needed. He referred Ibrahim for additional physical therapy and, as of October 19, 1999, limited him to light duty work requiring only one arm and with no mechanical lifting. All of this information is in Dr. Fonte’s and Dr. Field’s medical records.

Suit was filed January 28, 2000. On March 28, 2000, Ibrahim’s attorney sent a letter to Allstate with copies of Dr. Fonte’s and Dr. Field’s medical records and invoices for $6,386.72 in medical bills, plus Ibrahim’s employer’s verification of lost wages in the amount of $11,900. The letter outlined the treatments Ibrahim had received, described the recommended arthroscopic surgery, summarized the general damages and loss of consortium claims, and requested payment of the full UM policy limits. In a letter dated April 21, 2000, Allstate tendered its med-pay limit of $5,000 and stated, “we feel no UM tender is in order.” At trial, Allstate’s claims adjuster, Shirley Williams, testified that she gave no consideration to the loss of consortium claim and limited the lost wage claim to | «$5,250, which represented only the wages lost during the 15 weeks Dr. Fonte’s notes specifically stated Ibra-him could not work at all. Although the employer’s verification described Ibrahim’s job duties as “cashier, stock man, manager, janitor,” she did not correlate the work limitations imposed by Dr. Field with the employer’s verification that Ibrahim had not worked from the accident date through June 1999, and had only worked 20 hours per week from August 1999 through February 2000. In fact, she never did any further investigation of his wage loss claim. Allstate’s claim file has a computerized assessment for general damages dated April 21, 2000; that print-out shows nothing for wage loss incurred or expected and nothing for expected medical specials, although both doctors were still treating Ibrahim. Ms. Williams testified that she provided the information for the computer assessment.

On August 10, 2000, Ibrahim’s attorney provided Allstate with a copy of the declarations page of the State Farm liability insurance policy covering Hawkins, a receipt and release showing State Farm had paid its policy limits of $25,000, and an affidavit from Hawkins stating he had no other liability insurance coverage. The letter again requested payment of the UM limits. On August 17, 2000, Ms. Williams requested additional medical records and stated, “Based on the records we have to date, we feel there is no UM exposure.” On August 31, 2000, Ibrahim’s attorney sent Allstate two letters. One enclosed a copy of the supplemental and amending petition that had been filed August 1, 2000, asserting Ibrahim’s claim against Allstate. The second enclosed the medical records of Dr. Alan C. Fames, an orthopedist from whom Ibrahim had sought a second opinion; Dr. Fairies confirmed the recommendation for arthroscopic surgery. The letter also included an estimate from Dr. Field that his fee and an assistant surgeon’s fee for arthroscopic surgery would be $7,558. Upon receipt of this information, the computerized assessment was updated, and on September 22, 2000, Allstate tendered $19,608 to Ibrahim. Ms. Williams testified that this reflected the wage loss of $5,250, medical bills in the file of $6,800, the estimated surgeon’s fee 19of $7,558, and general damages of $30,000. From this $49,608 estimate of Ibrahim’s total damages, she deducted State Farm’s $25,000 payment and Allstate’s $5,000 med-pay payment, leaving $19,608. She acknowledged that she made no effort to estimate or include the anesthesiology or hospitalization costs that would necessarily accompany the surgical procedure. She also made no further adjustment for expected wage loss and did not increase the general damage estimate to reflect the anticipated surgery.

Ibrahim had the arthroscopic surgery on November 29, 2000. On January 81, 2001, Ibrahim’s attorney sent a letter to Allstate’s attorney, enclosing copies of updated medical records and invoices from Dr. Field reflecting the surgery and follow-up medical treatment, including ongoing physical therapy. This letter suggested that increased medical expenses and additional lost wages due to the surgery justified payment of the full UM limits. It was forwarded to Allstate on February 14, and on March 3, 2001, Allstate tendered $9,961. Ms. Williams explained that this payment reflected an increase in general damages to $40,000, plus $14,319 for medical bills and $5,250 for lost wages, for a total of $59,569. After deducting the payments previously made by Allstate and State Farm, the balance was $9,961. Again, there was no increase in the wage loss estimate and nothing for loss of consortium or continuing treatment.

Before going to trial, Ibrahim’s attorney continued to provide additional information to Allstate. On April 9, 2001, he forwarded copies of additional medical records and bills incurred by Ibrahim; the paid medical expenses by this time totaled $21,845.60. In May, he forwarded treatment notes from Dr. Ashwin Sura, a psychiatrist who had treated Ibrahim for nervousness and depression from March 2000 through March 2001. Dr. Sura’s notes from Ibrahim’s first visit indicate the history of his present illness was:

Accident 1 year ago — “car”—he was driving — truck got in front of him. Froze up[;] gave him bags to breathe. He is changed — gets upset over little things — irritable—nightmares @ night — arm is painfull (sic) — afraid to drive — wakes up in night hollers — feels nervous all the time.

At the trial, Ms. Williams said she did not give any consideration to Dr. Sura’s treatment or the cost of the medications she prescribed for Ibrahim, because the doctor’s notes Imdid not specifically say his mental condition was related to the accident. No additional tender was forthcoming from Allstate before the trial.

In oral reasons for judgment, the trial court stated its conclusions concerning Allstate’s handling of Ibrahim’s claim for UM benefits under his policy, as follows:

The court is extremely concerned that in the first tender the insurer was aware of the necessity of further surgery, and in fact even included a surgeon’s cost, anticipated surgeon’s cost therein, but did not increase the general damages associated with that, nor did they provide any amounts for the hospital or anesthetist fee. In providing the surgeon’s cost they basically admitted that they understood and knew that the surgery was required. Failure to provide consideration for the other matters, the increased general damages, the hospital fees and anesthetist’s fees was arbitrary and capricious on behalf of the insurer. No reasonable person could come to that decision without willfully attempting to deny the claim that proof of which had been presented to them. There was no consideration given as to any lost or reduced wages after May 24th of 1999. Upon examination by the plaintiffs counsel, it was definitively established that the $5,250.00 lost wages was only for the February 4, ’99 through May 24, ’99 period. Having recognized the need for surgery and failed to provide consideration for lost wages associated with the surgery, that was arbitrary and capricious on behalf of the insurer. Also with regard to the psychiatrist’s costs, having already found that they are attributable to this matter, the documentation from the psychiatrist, I don’t think any reasonable person could read that and not relate it directly to this accident. The notes are very clear. The doctor’s notes are very clear. So failure to consider that, or give consideration to that in tendering is arbitrary and capricious ....

Having reviewed the record, we conclude there was evidentiary support for the trial court’s findings. Although all payments were made within thirty days from receipt of information, Allstate’s estimates conveniently overlooked portions of that information, resulting in unreasonably low payments at each juncture. Moreover, despite receiving additional information regarding psychiatric treatment after its last tender, Allstate made no effort to adjust either its medical specials or general damages to account for Ibrahim’s mental problems that were clearly attributable to the accident. Finally, throughout the evaluation process, Allstate totally ignored the claims of Ibrahim’s wife and children. Accordingly, we find no manifest error in the trial court’s conclusion that Allstate was arbitrary and capricious in its handling of Ibrahim’s claim.

Penalties

The trial court imposed a penalty of twice the amount it found was owed to Ibrahim under the UM provisions of the Allstate policy after deducting all applicable Incredits. Allstate argues that under LSA-R.S. 22:658, this is clearly excessive, because that statute limits the penalty to 10% of the difference between the amount paid or tendered and the amount found to be due, which it suggests is $2,043.10. However, it is obvious that the court did not apply this statute, but looked to the provisions of LSA-R.S. 22:1220 in imposing this penalty. The allowable penalty under LSA-R.S. 22:1220 is two times the damages sustained as a result of the breach of specified duties or five thousand dollars, whichever is greater. Under the jurisprudence, where its provisions provide the greater penalty, it supersedes LSA-R.S. 22:658. See Calogero, 753 So.2d at 174.

However, Allstate further argues that there was no showing of actual damages resulting from Allstate’s breach of its duties, which is required in order to award penalties under LSA-R.S. 22:1220. We note that this court has consistently held that the penalty provision of LSA-R.S. 22:1220 is applicable only after a showing is made of actual damages resulting from the breach of the insurer’s duties. See Champagne v. Hartford Cas. Ins. Group, 607 So.2d 752, 758 (La.App. 1st Cir.1992); Khaled, 657 So.2d at 679-680; Graves v. Businelle Towing Corp., 95-1999 (La.App. 1st Cir.4/30/96), 673 So.2d 311, 314-15; Carter v. Davis, 95-2198 (La.App. 1st Cir.5/10/96), 673 So.2d 362, 364-65, writ denied, 96-1449 (La.6/27/97), 696 So.2d 991; Reed v. Recard, 97-2250 (La.App. 1st Cir.11/18/98), 744 So.2d 13, 19, writ denied, 98-3070 (La.2/12/99), 738 So.2d 572; The Sultana Corp. v. Jewelers Mwt. Ins. Co., 01-2059 (La.App. 1st Cir.12/31/02), 837 So.2d 134, 136.

Ibrahim argues that even if there were no actual proven damages, this court should still award $5,000 per claimant under the penalty provision. This was the approach taken by the federal district court applying Louisiana law in Estate of Robichaux v. Jackson Nat’l Life Ins. Co., 821 F.Supp. 429, 431 (E.D.La.1993), and the federal appellate court in In Matter of Hannover Corp. of America, 67 F.3d 70 (5th Cir.1995). It is also the interpretation followed by the Louisiana courts of appeal for the third, fourth, and fifth circuits. See Hall v. State Farm Mut. Auto. Ins. Co., 94-867 (La.App. 3rd Cir.5/31/95), 658 So.2d 204, 208; McClendon v. Economy Fire & Cas. Ins. Co., 98-1537 (La.App. 3rd Cir.4/7/99), 732 So.2d 727, 731; Rogers v. Commercial Union Ins. Co., 01-0443 (La.App. 3rd Cir.10/3/01), 796 So.2d 862, 869; Reed v. State Farm Mut. Auto. Ins. Co., 02-804 (La.App. 3rd Cir.12/11/02), 832 So.2d 1132, 1135; Brinston v. Automotive Cas. Ins. Co., 96-1982 (La.App. 4th Cir.12/3/97), 703 So.2d 813, 817; and Genusa v. Robert, 98-449 (La.App. 5th Cir.10/14/98), 720 So.2d 166, 173. A move toward this approach has also been suggested in a dissenting opinion of this court. See The Sultana Corp., 837 So.2d at 137 (Fogg, J., dissentingXsuggesting that although the insured did not prove the actual amount of damages sustained due to the insurer’s breach of its duty, the evidence showed there' were actual damages and therefore, the $5,000 penalty provision should have been applied).

Ibrahim’s suggestion that we award $5,000 per claimant even if actual damages were not proved has been specifically considered and rejected by this court. In the Carter case, the sole issue presented on appeal was whether the trial court erred in awarding $5,000 in penalties for bad faith settlement practices under LSA-R.S. 22:1220. Carter, 673 So.2d at 363. In reversing the trial court’s penalty award, this court reasoned:

[W]e believe that the plain language of the statute dictates this result. A court’s interpretation of a law should reflect the meaning the lawmaker intended. Furthermore, it is presumed that every word, sentence or provision in the law was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were used. The penalty provision clearly states, “[I]n addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties .... ” (Emphasis supplied.) Giving meaning to each word of the statute, we believe that the lawmakers intended the penalty provisions in Section C of the statute to apply only in circumstances where the claimant has proven his entitlement to general or special' damages.
It is the plaintiffs burden to prove the damage he suffered as a result of defendant’s fault, and to support an award there must be evidence in the record. The record herein reveals no evidence of damages suffered by the plaintiff as a result of the defendant’s conduct. Under these circumstances the trial court erred in awarding plaintiffs penalties under LSA-R.S. 22:1220.

Carter, 673 So.2d at 364-65 (citations omitted); see also The Sultana Corp., 837 So.2d at 135-36. Therefore, until the Louisiana Supreme Court addresses and resolves this split in the decisions of the appellate courts of this state, we must follow the jurisprudence 113from this circuit that does not allow any penalty under LSA-R.S. 22:1220 unless the insured has proven damages were suffered as a direct result of the insurance company’s conduct. See Graves, 673 So.2d at 315. The evidence in this case does not establish such damages. Therefore, the trial court’s award of penalties in the amount of $40,862 under the provisions of LSA-R.S. 22:1220 was legal error and cannot be maintained.

However, a penalty award pursuant to LSA-R.S. 22:658 is appropriate; Allstate has computed this as $2,043.10, which is 10% of the remaining amount within Allstate’s policy limits- after deducting the payments already made by it and State Farm. In considering whether this is a correct computation, we have examined the current and past versions of LSA-R.S. 22:658 and the jurisprudence interpreting it. When the insurer has made partial payments toward its obligation, the statute calls for a penalty of “ten percent of the difference between the amount paid or tendered and the amount found to be due .... ” This language has remained consistent through several amendments. In Malbrough v. Wallace, 594 So.2d 428, 437 (La.App. 1st Cir.1991), writ denied, 596 So.2d 196 (La.1992), this court defined the “amount found to be due” as plaintiffs total damages less the liability insurer’s policy limits. However, that case was decided before the amendment of LSA-R.S. 22:658 in 1992. See 1992 La. Acts, No. 879, § 1. Before that amendment, the applicable penalty in Malbrough for the arbitrary or capricious failure to make any payment to the insured within thirty days after receipt of satisfactory proof of loss was, in addition to the amount of the loss, “ten percent damages on the total amount of the loss .... ” (emphasis added). The 1992 amendment modified this portion of the penalty to state that, in addition to the amount of the loss, the penalty would be “ten percent damages on the amount found to be due from the insurer to the insured ... .” (emphasis added). This amendment clarified that ten percent of “the amount found to be due from the insurer to the insured,” rather than ten percent of “the total amount of the loss,” was the maximum 114penalty that could be imposed on an insurer for its failure to make any payment in accordance with the statutory requirements. Reading this amended provision in pari materia with the penalty provision for the situation in which a partial payment has been made, we conclude that “the amount found to be due” can no longer be measured by the total damages minus the liability insurance payment, as in Malbrough. Under the then-applicable version of the statute, that computation was correctly based on the total amount of the loss, which mirrored the first portion of the penalty provision at that time. Under the current version, however, we conclude that “the amount found to be due” must mirror the amended first portion of the penalty provision and be based on the amount that is ultimately found to be owed by the insurer to the insured.

In this case, after considering the Allstate policy limits and deducting all payments made by it and State Farm, the “amount found to be due” by the trial court was $20,431. Basing the ten percent penalty on this amount, Allstate is thus hable to Ibrahim for a penalty of $2,043.10.

Attorney Fees

The trial court awarded attorney fees in the amount of $26,527.07, which represented one-third of the net judgment of $79,581.22. The court stated that this award was based on the contingency fee contract showing a one-third fee, which the court found “to be a reasonable and traditional fee for this type of matter.” Allstate contends the trial court erred in awarding attorney fees that are out of proportion to the amount of the statutorily permissible award and cannot fairly be attributed to “the prosecution and collection of such amount,” as the statute requires.

Having reduced the penalty award, we must re-evaluate the attorney fee award using the factors set out in the jurisprudence. See Degruise v. Houma Courier Newspaper Corp., 95-1863 (La.11/25/96), 683 So.2d 689, 694-95. The award must be based on the attorney’s efforts expended for the prosecution and collection of the claim against the insurer and the penalty due to the insured, taking into consideration the 1^services needed to effect recovery, the degree of professional skill and ability exercised, the volume of work performed, the time devoted to the case, the result obtained, the novelty and difficulty of the questions involved, and the percentage fixed for attorney fees in the plaintiffs contract. See Desoto, 837 So.2d at 51-52.

The record in this case indicates that State Farm’s liability was established from the outset. The accident report is one of the first items in the Allstate claim file; it shows Hawkins caused the accident by turning left directly in front of Ibrahim, leaving him no opportunity to avoid the collision. The claim file also reflects Allstate knew the State Farm policy had a $25,000 liability limit. Therefore, Allstate knew that its insured had no liability and that State Farm’s contribution would be limited to $25,000. By August 2, 2000, State Farm had paid its policy limits and was released from the litigation. The only pleadings in the record before that date are the petition, State Farm’s answer, and the supplemental and amending petition naming Allstate as an additional defendant. Based on the record, including the correspondence and documents in Allstate’s claim file, it is clear that virtually all of the work done by Ibrahim’s attorney in this case was expended to recover the UM payments that were contractually owed to his client. There was nothing novel or unusual about the factual or legal basis of the claim, just an inordinate amount of time and effort to obtain what Allstate should have paid its insured. Dr. Field was deposed twice, once in October 2000 and again after the surgery in May 2001; additional discovery was propounded in preparation for trial when Allstate failed to make any additional tender after receipt of Dr. Sura’s reports. The record reflects that Ibrahim’s attorney was zealous, competent, and well-prepared in his representation of his client. Solely as a result of those efforts, which spanned almost two years, Ibrahim recovered the full policy limits due under his UM contract, plus statutory penalties and attorney fees.

Having determined that when a partial payment has been made, “the amount found to be due” must be based on the amount that is ultimately found to be owed by the insurer to the insured, we further note that the insurer shall be subject to “all reasonable attorney fees for the prosecution and collection of such amount.” 11fi(emphasis added). See LSA-R.S. 22:658(B)(1). In this case, “such amount” is equal to the total recovery against Allstate, or $22,474.10, including the revised penalty. Therefore, the trial court’s award of one-third of the net judgment, which resulted in an attorney fee of $26,527.07, exceeds the total recovery and is clearly excessive. Based on our recalculation of the total recovery and approximating the contingency fee reflected in Ibrahim’s contract with his attorney, we believe an attorney fee award of $7,500 is appropriate. The judgment will be amended accordingly-

Legal Interest

The judgment ordered Allstate to pay the remaining balance under its policy after deduction of the tenders it had already made, that being $20,431, and to pay legal interest on “said judgment” from the date of judicial demand, January 28, 2000, until paid. Ibrahim contends that legal interest should be computed and paid on the total damages of $139,150 from the date of judicial demand until Allstate exhausts its policy limits of $50,000, citing Martin v. Champion Ins. Co., 95-0030 (La.6/30/95), 656 So.2d 991, in support of this argument. There the Louisiana Supreme Court held that the UM insurer’s obligation to pay judicial interest on the amount of the judgment in excess of its policy limits was the same as its responsibility for such interest under its liability coverage, and awarded legal interest on the entire judgment, less the amount paid by the liability insurer, from the date of judicial demand. However, that decision was based on the supplementary payment provision in the liability portion of the insurance policy, which the court concluded must also be applicable to the UM portion of the policy under the statutory mandate of LSA-R.S. 22:1406. The record in this case does not contain a copy of the Allstate policy, so we are unable to ascertain whether the supplemental payment provision in the liability portion of the policy would mandate a similar result.

However, although the record contains insufficient information to justify an |17award of legal interest on the entire amount of the damages, we believe the trial court erred in awarding legal interest from the date of judicial demand on only the difference between the amount ultimately tendered by Allstate and its policy limits. Just as the insurer’s liability for the principal amount of the judgment is restricted to its policy limits, its responsibility for judicial interest from the date of judicial demand should also be measured by its policy limits, which is the principal amount owed to its insured. Allstate was obligated to Ibrahim for its full UM limits of $50,000 plus its med-pay limits of $5,000. It made no payments until after suit was filed. Therefore, Allstate is liable for legal interest on $55,000 from the date of judicial demand until its first tender of $5,000 on April 24, 2000. Legal interest on $50,000 is due from April 25, 2000, until the next tender of $19,608 on September 26, 2000. Legal interest on $30,392 is due from September 27, 2000, until March 9, 2001, when Allstate made its final tender of $9,961. Legal interest is due on the balance of $20,431 from March 10, 2001, until paid in full.

Because Allstate has obtained relief on the appeal, we do not award additional attorney fees to Ibrahim for the appeal. See Guidry v. Millers Cas. Ins. Co., 01-0001 (La.App. 1st Cir.6/21/02), 822 So.2d 675, 684.

CONCLUSION

We amend the judgment in favor of Ibrahim and against Allstate to award a penalty in the amount of $2,043.10 and attorney fees in the amount of $7,500. The judgment is further amended to bear legal interest on $55,000 from judicial demand until April 24, 2000; on $50,000 from April 25, 2000, until September 26, 2000; on $30,392 from September 27, 2000, until March 9, 2001; and on the balance of $20,431 from March 10, 2001, until paid in full. In all other respects, the judgment is affirmed. Each party is to bear its own costs for this appeal.

AMENDED AND AS AMENDED, AFFIRMED.

      . Under LSA-R.S. 22:1406(D)(l)(a)(i), an insured can select UM coverage limited to actual economic losses, with no coverage for non-economic damages like pain, suffering, inconvenience, and mental anguish. Ibrahim's policy was not limited to economic-only damages.

      . Although the petition names only three children, Ibrahim and his wife had a fourth child while this matter was pending. The petition was not amended to include the fourth child, but the judgment does not enumerate the children among whom the loss of consortium award is to be divided. The appeal does not question this award.

      . Although the letters in which the tenders were made were generally several days earlier, the judgment uses these stipulated dates as the dates for the Allstate UM tenders. We will adhere to the dates of the trial court judgment for these payments and the med-pay payment, which is shown as April 24, 2000.

      . Although later correspondence in the claim file and Ms. Williams’ trial testimony suggests the wage verification form was not received until some later date, our examination of the file reveals that she did have this information. Furthermore, without this wage verification from Ibrahim’s employer, she could not have known how much to include for the 15 weeks of lost wages she conceded was established.

      . Malbrough was the only case we could find from this circuit or the supreme court to specifically address the computation of the penalty under this portion of LSA-R.S. 22:658.

      . Support for this conclusion concerning the Malbrough computation of damages is found in the comments of W. Shelby McKenzie and H. Alston Johnson, Insurance, Recent Developments in the Law 1991-1992, 53 La. L.Rev. 809, 815 (1993).

      . This is the day suit was filed against Hawkins and State Farm. In Burton v. Foret, 498 So.2d 706, 712-13 (La.1986), the Louisiana Supreme Court noted that legal interest runs from the plaintiff's first judicial claim against any party responsible for a single tortious act. Thus, the UM insurer was liable for legal interest from the date of judicial demand against the negligent motorist, even if the UM carrier was not joined as a defendant until a later date. See LSA-R.S. 13:4203.

      . The trial court correctly awarded legal interest on the penalties and attorney fees from the date of the signed judgment. See Sharbono v. Steve Lang & Son Loggers, 97-0110 (La.7/1/97), 696 So.2d 1382, 1388-89.


author: JgFITZSIMMONS, J.

text:
    Terry WILLIAMS v. CITY OF BATON ROUGE, Baton Rouge City Police Department, XYZ Insurance Company and Earl K. Long Hospital.
    No. 2002 CA 0252.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.
    Terry Williams, Baton Rouge, Plaintiff/Appellant In Proper Person.
    Michael E. Ponder, Parish Attorney, Arlene C. Edwards, Assistant Parish Attorney, Baton Rouge, Counsel for Defendants/Appellees City of Baton Rouge and Baton Rouge City Police Department.
    Robert S. Leake, Baton Rouge, Counsel for Defendants State of Louisiana and Earl K. Long Hospital.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   JgFITZSIMMONS, J.

Plaintiff, Mr. Terry Williams, filed a handwritten, pro se petition for damages on April 19, 2001. In paragraph two of his petition, he named defendants, City of Baton Rouge, Baton Rouge City Police, XYZ insurer, and Earl K. Long Hospital. In the same paragraph, he provided addresses for each defendant and specifically stated that these were for service. In his prayer at the end of the petition, Mr. Williams requested service on all defendants. On June 4, 2001, Mr. Williams sent a handwritten letter to the Clerk of the 19th Judicial District Court and asked that service be made pursuant to the information “provided in Paragraph 2, in Plaintiff Petition For Damages.” The letter was marked received on June 15, 2001, and filed in the record. On September 14, 2001, the City of Baton Rouge and Baton Rouge City Police Department (Baton Rouge) filed a motion to dismiss for failure to request service on defendants within ninety days, as required by Louisiana Revised Statutes 13:5107D. At a hearing on the motion, counsel for Baton Rouge admitted that, after the filing of the motion, Baton Rouge was served with the original petition and an amending petition. However, Baton Rouge argued that the service effected was well outside the ninety day period mandated by statute. Baton Rouge also explained that if the service information is not “at the bottom as you’re required to do, they don’t serve.”

The trial court agreed with the argument of Baton Rouge. A judgment of dismissal, without prejudice, was signed on November 2, 2001. Plaintiff, Mr. Williams, appealed. We reverse and remand.

“No technical forms of pleading are required” and “[e]very pleading shall be so construed as to do substantial justice.” La. C.C.P. arts. 854 & 865. A pleading “shall designate an address, not a post office box, for receipt of service of all items involving the litigation .... ” La. C.C.P. art. 891A. Specifically, for suits against the state or a political subdivision, service “shall be requested within ninety days of |3the commencement of the action .... ” La. R.S. 13:5107D(1). “If service is not requested by the party filing the action within that period, the action shall be dismissed without prejudice, after contradictory motion as provided in Code of Civil Procedure Article 1672(C) .... ” La. R.S. 13:5107D(2). Article 1672C mandates dismissal for failure to serve timely, “unless good cause is shown why service could not be requested, in which case the court may order that service be effected within a specified time.”

The trial court erred in finding that the facts of this particular case required dismissal under Revised Statutes 13:5107D. In his prayer, Mr. Williams “requested” service on the day the original petition was filed, and provided, in paragraph two of his petition, addresses for the named defendants. Subsequently, perhaps in an attempt to direct the clerk of court to the specific location of the addresses for service, Mr. Williams again requested the clerk serve the defendants at the addresses listed in paragraph two of his petition. Although the service instructions were not listed at the customary location, at the bottom of the last page of the original petition, Revised Statutes 13:5107D requires only that a “request” for service be made “within ninety days” of the filing of the suit. By providing a ninety day period for service, the statute obviously does not prohibit service requests being made in places other than the last page of the original petition. Additionally, no party referred to a statute or rule that requires service instructions to appear at the bottom of the last page of a petition.

Mr. Williams’ requests to the clerk of court, in the petition’s prayer and in his letter, were within ninety days of the filing of the April 19, 2001 petition. The letter clearly requested the clerk to serve defendants, including Baton Rouge, at the addresses provided in paragraph two of Mr. Williams’ petition for damages. These requests, though not made at the usual time or in the usual manner, were sufficient to avoid mandatory dismissal under Revised Statutes 13:5107D. At the very least, Uunder the circumstances here, good cause was shown for not dismissing the suit at the time of the motion. See La. C.C.P. art. 1672C.

For these reasons, we reverse the dismissal of the suit and remand for further proceedings. Plaintiff, Mr. Williams, need not re-serve the defendants already served. The costs of the appeal, $1329.41, are assessed to defendants-appellees, City of Baton Rouge and Baton Rouge City Police Department.

REVERSED AND REMANDED.


author: i,McDonald, j.

text:
    Richard B. LAY v. HOLI TEMPORARY SERVICES
    No. 2002 CA 0290.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.
    Richard Lay, Angola, Plaintiff/Appellant, pro se.
    W. Paul Weidig, Metairie, Counsel for Defendant/Appellee, Holi Temporary Services.
    Before: PARRO, MCDONALD, and CLAIBORNE, JJ.

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

   i,McDonald, j.

Richard Lay filed this appeal while he was an inmate at Angola. Apparently, he is no longer incarcerated. Prior to his incarceration he worked as a garbage collector for Holi Temporary Services. On November 21, 1992, while working for Holi Temporary Services on equipment owned by Waste Management of St. Tammany Parish (Waste Management), Mr. Lay was injured. As a result, Mr. Lay saw Dr. Mark Hontas for treatment.

PREVIOUS CASES FILED BY MR. LAY

Mr. Lay filed a disputed claim for workers’ compensation naming as a defendant Holi Temporary Services. This claim was assigned docket number 93-03937 in the Office of Workers’ Compensation Administration (OWC). On May 26, 1993, Mr. Lay and the defendants, Holi Temporary Services, and its insurer, The Fidelity and Casualty Company of New York, settled this claim for $1,000 in full and final payment, settlement, satisfaction and compromise, in an order signed by the workers’ compensation judge. Lay v. Holi Temporary Services, Inc., OWC, No. 93-03937, District 6.

Since that time, Mr. Lay has filed numerous claims attempting to have that settlement rendered null and void. In October of 1993, Mr. Lay filed suit in the City Court of Slidell against Holi Temporary Services, Waste Management, and other defendants. The defendants filed an exception raising the objection of lack of subject matter jurisdiction, which was maintained on February 3, 1994, and Mr. Lay’s suit was dismissed. Lay v. Holi Temporary Services, Inc., City Court of Slidell, No. 93C3914.

In May of 1996, Mr. Lay filed another claim with the OWC against Waste Management, which was designated as docket number 96-04333. Holi Temporary Services was named as a third party defendant. Holi Temporary Services filed a motion to dismiss based upon Mr. Lay’s failure to comply with a discovery order. On January | <¡16, 1997, the workers’ compensation judge dismissed the case. Lay v. Waste Management of St. Tammany, OWC, No. 96-04333, District 6. On January 21, 1997, Mr. Lay filed another claim with the OWC against Holi Temporary Services. This claim was filed under the previous docket number 93-03937. Apparently, this suit was dismissed also, but the judgment of dismissal is not in the record before us. Lay v. Holi Temporary Services, OWC, No. 93-03937, District 6.

Mr. Lay filed for writs of certiorari with this court in OWC case numbers 93-03937 and 96-04333. Thereafter, this court denied writs. Lay v. Waste Management of St. Tammany, 00-CW-0264 (La.App. 1 Cir. 7/28/00) (unpublished writ action).

On January 17, 1997, Mr. Lay filed suit in Civil District Court for the Parish of Orleans against Dr. Hontas, Tulane University Medical Center, Continental Rehabilitation Services, Holi Temporary Services, Waste Management, and Adams & Reese, L.L.P. Lay v. Continental Rehabilitation Services, Civil District Court for the Parish of Orleans, No. 99-10702. Continental Rehabilitation Services, Holi Temporary Services and Waste Management filed exceptions raising the objection of improper venue, which were sustained, and Mr. Lay’s claims against those defendants were transferred to the Twenty-Second Judicial District Court. Adams & Reese filed an exception raising the objection of no cause of action, which was also sustained, and Adams & Reese was dismissed from the suit. Dr. Hontas and Tulane University Medical Center were dismissed from the action pending the submission of Mr. Lay’s claims to a medical review panel.

In the suit that was transferred to the Twenty-Second Judicial District Court, the defendants filed an exception raising the objection of prescription. In its reasons for judgment, the trial court judge determined that Mr. Lay had failed to show that the suit was not prescribed on its face. Further, the trial court determined that the equitable doctrine of contra non valentem did not apply, because Mr. Lay’s allegations of fraud were without merit and that a review of the medical evidence revealed not even a hint of the possibility of concealment or misrepresentation. The trial court granted the exception |4of prescription filed by the defendants and dismissed Mr. Lay’s suit. Further, the trial court awarded sanctions against Mr. Lay in favor of the defendants in the amount of $10,000. Lay v. Dr. Mark J. Hontas, Twenty-Second Judicial District Court, No. 97-10219.

Thereafter, Mr. Lay filed another claim against Holi Temporary Services and American Waste of St. Tammany Parish with the OWC, docket number 01-00020. On January 18, 2001, the workers’ compensation judge signed an order dismissing that claim with prejudice. Lay v. Holi Temporary Services, OWC, No. 01-00020, District 6.

THE PRESENT CASE

On October 4, 2001, Mr. Lay filed another disputed claim for compensation with the OWC against Holi Temporary Services. This action was given docket number 01-07392. In this action, Mr. Lay again asserted that he was petitioning to nullify the settlement due to fraud, error and lack of consent, and asserted that the contract is in violation of public policy. The workers’ compensation judge sustained an exception raising the objection of res judicata in favor of Holi Temporary Services, and Mr. Lay’s claim for compensation and his petition for absolute nullity of his May 26, 1993 workers’ compensation settlement was dismissed with prejudice. Mr. Lay filed a motion for new trial, which was denied. Mr. Lay now appeals from the judgment that dismissed his claim.

DISCUSSION

The burden of establishing the invalidity of a compromise is on the party attacking the agreement. Barnhill v. Consolidated Medical, Disability & Life Trust, 569 So.2d 1115, 1117 (La.App. 3 Cir.1990), writ denied, 572 So.2d 93 (La.1991), citing Saunders v. New Orleans Public Service, Inc., 387 So.2d 603 (La.App. 4 Cir.), writ denied, 394 So.2d 614 (La.1980). A compromise, as between the interested parties, has a force equal to the authority of the thing adjudged. Thus, a valid compromise may form the basis of a plea of res judicata. Rivett v. State Farm Fire and Casualty Co., 508 So.2d 1356, 1359 (La.1987). The grounds for rescinding a compromise are set forth in La. C.C. articles R3078 through 3083. Taken together, La. C.C. arts. 3078 and 3079 provide that rescission of compromise is justified in three cases: (1) error in the person, (2) error on the matter in dispute, and (3) fraud or violence. Brown v. Drillers, Inc., 93-1019 (La.1/14/94) 630 So.2d 741, 747 n. 9.

Mr. Lay asserts that Holi Temporary Services obtained communications from his treating physician, Dr. Hontas, which alerted it that he was still disabled and unable to meet his job requirements, but Holi Temporary Services suppressed these medical findings in order to obtain a settlement. Thus, he argues, the settlement is a complete nullity.

There is no evidence in the record to back up the assertion of concealment or misrepresentation. An MRI of Mr. Lay’s lumbar spine performed on February 4, 1993, at the request of Dr. Hontas, revealed normal results. Dr. Hontas determined that Mr. Lay had sustained a muscle strain and was capable of returning to work.

The record shows that Mr. Lay sought medical treatment for his back following the work-related injury in November of 1992, an automobile accident in April of 1993, a slip and fall incident in October of 1993, and again after a slip and fall in a shower in September of 1994.

The record also reveals that at a hearing in the City Court of Slidell on January 25, 1994, Mr. Lay indicated that he had recovered from his work-related injury of November 21, 1992. Mr. Lay stated that he wanted to get back to work and that the doctor had determined his problem was “muscular” and had released him to return to work. He also stated that the injury had been “minimal.” In that case, he was complaining of wrongful and discriminatory practices by Holi Temporary Services in failing to rehire him, and he asserted that he should be allowed to return to work. Lay v. Holi Temporary Services, Inc., City Court of Slidell, No. 93C3914.

After a thorough review of the record, we find no error in the workers’ compensation judge’s determination that Holi Temporary Services exception raising the | fiobjection of res judicata should be sustained. For the foregoing reasons, the judgment is affirmed. Costs of this appeal are assessed against Richard Lay.

AFFIRMED.

PARRO, J., concurs.

        . This case presents an unusual factual history. We give the history of this case, and the related cases, based on the record before us. We note that more related cases, which are not found in the record before us, are set forth in Lay v. Continental Rehabilitation Services, 2002-1268 (La.App. 4 Cir. 12/11/02), 834 So.2d 1156.


author: | .GUIDRY, J.

text:
    Oko USUN v. LSU HEALTH SCIENCES CENTER MEDICAL CENTER OF LOUISIANA AT NEW ORLEANS.
    No. 2002 CA 0295, 2002 CA 0296.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.

      Larry E. Broome, New Orleans, for Plaintiff-Appellant Oko Usun.
    Philip H. Kennedy, New Orleans, for Defendant-Appellant LSU Health Science Center, Health Care Services Division, Medical Center of Louisiana at New Orleans.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   | .GUIDRY, J.

Oko Usun, appellant, appeals the decision of the Civil Service Referee sustaining his dismissal by the appointing authority in these consolidated cases.

FACTS AND PROCEDURAL HISTORY

Mr. Usun was formerly employed as a Medical Laboratory Technician III in the Pathology Services/Toxicology Department of the Medical Center of Louisiana at New Orleans (MCLNO). He worked the 11:00 p.m. to 7:00 a.m. shift and was a shift supervisor. On the morning of August 12, 1999, Mr. Usun and his supervisor, Victoria Giblin, engaged in two separate disputes over some testing that had not been conducted and a departmental directive requiring employees with over 160 hours of compensatory time (k-time) to reduce the number of hours accumulated. Because of the disagreement with Ms. Giblin about his compensatory time, Mr. Usun wrote a five-page letter to her, which he posted on the door of her office. He later filed a grievance in regard to the request that he reduce the amount of compensatory time accrued.

On August 17, 1999, as a result of some strong language in the letter and grievance written by Mr. Usun, which was perceived as threatening, Mr. Usun was placed on immediate suspension, with pay, pending an investigation of the matter. MCLNO later made a request to extend the suspension-pending-investigation for an additional 30 days, which was granted by the Civil Service Referee. Sometime thereafter, a notice of termination, effectively terminating Mr. Usun’s employment as of December 21, 1999, was sent to Mr. Usun. In the meantime, following the granting of the extension to MCLNO, Mr. Usun filed appeal No. 13774 with the Civil | Service Commission (Commission) contesting the suspension, investigation and the charges made against him by MCLNO.

On January 6, 2000, MCLNO submitted a request to the director of the Department of Civil Service to rescind the December 21, 1999 termination of Mr. Usun based on notification that Mr. Usun received the termination letter on December 29, 1999, after the effective date of termination. The Civil Service Referee approved the request, and the December 21, 1999 termination was accordingly rescinded.

Following the rescission of the December 21, 1999 termination, Mr. Usun was not allowed to return to work, but was placed on forced leave pending re-termination. On January 27, 2000, a new letter of termination was drafted to notify Mr. Usun that his employment with MCLNO was being terminated effective April 6, 2000. Eight copies of the January 27, 2000 letter were mailed to Mr. Usun by counsel for MCLNO between March 23-29, 2000. Mr. Usun’s employment was effectively terminated on April 6, 2000, at 11:59 p.m. On April 24, 2000, Mr. Usun filed appeal No. S-14010 contesting his termination. On October 26, 2000, the Civil Service Referee consolidated both appeals, Nos. 13774 and S-14010, for hearing.

On December 6, 2000, the Civil Service Referee held a hearing on the consolidated matters and by a decision dated July 11, 2001, the Civil Service Referee denied the appeals. Mr. Usun filed an application requesting that the Commission review the decision of the Civil Service Referee on July 24, 2001, with that application being denied on September 13, 2001. An appeal to this court followed.

ASSIGNMENTS OF ERROR

In bringing this appeal, Mr. Usun alleges several errors committed by the Civil Service Referee in rendering her decision:

|41. The decision was contrary to the law and evidence;
2. A written communication to a supervisor should not be considered, threatening, because of the use of one word, namely “lethal;”
3. The Referee erred, when she gave only one interpretation to the word lethal;
4. The appellant was wrongfully discharged from his employment, for writing a letter of complaint;
5. The Referee erred in not reinstating appellant to his position, since some overt act should have also been present to prove this alleged letter was [threatening];
6. The Referee erred by not reinstating appellant, because Civil Service Rules were violated when he was terminated;
7. Further, we allege all other errors, made by the Referee which will be specifically pointed out, when we receive the transcript of this hearing;

STANDARD OF REVIEW

Generally, decisions of Civil Service Commission Referees are subject to the same standard of review as decisions of the Commission itself. Decisions of the Civil Service Commission are subject to the same standard of review as a decision of a district court. Johnson v. Department of Health and Hospitals, 00-0071, p.3 (La.App. 1st Cir.2/16/01), 808 So.2d 436, 437-438. When reviewing the Commission’s findings of fact, the appellate court is required to apply the manifestly erroneous or clearly wrong standard of review. However, in evaluating the Commission’s determination as to whether the disciplinary action taken by the appointing authority is based on legal cause and commensurate with the infraction, the reviewing court should not modify or reverse the Commission’s order unless it is arbitrary, capricious, or characterized by abuse of discretion. Jackson v. Department of Health and Hospitals, Office for Citizens with Developmental Disabilities, 98-2772, p. 2 n. 1 (La.App. 1st Cir.2/18/00), 752 So.2d 357, 359 n. 1.

DISCUSSION

Although Mr. Usun alleges several assignments of error, his complaints can basically be summed up in two contentions: (1) that the evidence was insufficient to warrant the disciplinary action taken and (2) the Civil Service Referee erred in finding that MCLNO could still terminate Mr. Usun after the rescission of the earlier termination. We will first consider whether the evidence was sufficient to warrant Mr. Usun’s termination.

In the decision rendered by the Civil Service Referee, she found that both the letter written to Ms. Giblin and the grievance filed by Mr. Usun contained “language that is inappropriate and threatening.” She further believed the testimony of MCLNO police officers, Detective Ever-rett Darensbourg and Lieutenant Robert Chamberlain, and credited their testimony over that of Mr. Usun. Specifically, she believed their testimony that Mr. Usun told them the following: “Why would he do anything to that old woman, if anything, he would harm her through her children, that would make her suffer more than anything.” She did not credit Mr. Usun’s 1 fitestimony denying that he had made the threatening statement to the officers, finding that Mr. Usun’s testimony, on that issue, was at best self-serving.

Finally, referencing another decision of the Commission, the Civil Service Referee held that “[a] state agency is within its rights when it takes a ‘zero tolerance’ stance on workplace violence. Acts of violence in the workplace constitute legal cause for dismissal.” She further found that although Mr. Usun “makes statements and uses words that he later regrets,” she did not find his defense of “ ‘[t]hat’s not what I meant,” ’ to be credible. Thus, she found that the agency bore its burden of proof and denied Mr. Usun’s appeal.

A permanent classified civil service employee cannot be disciplined without cause. La. Const, art. 10, § 8. Cause exists when the employee’s conduct is detrimental to the efficient and orderly operation of the public service that employed him. In order to modify or reverse the Civil Service Referee’s determination regarding cause in this matter, we must first find that the Civil Service Referee’s decision was arbitrary, capricious or an abuse of discretion. Williams v. Orleans Levee District, Board of Commissioners, 00-0297, p. 4 (La.App. 1st Cir.3/28/01), 784 So.2d 657, 659, writ denied, 01-1730 (La.9/14/01), 796 So.2d 686. The word “arbitrary” implies a disregard of evidence or of the proper weight thereof. A conclusion is “capricious” when there is no substantial evidence to support it or the conclusion is contrary to substantiated competent evidence. Burst v. Board of Commissioners, Port of New Orleans, 93-2069, p. 5 (La.App. 1st Cir.10/7/94), 646 So.2d 955, 958, writ not considered, 95-0265 (La.3/24/95), 651 So.2d 284.

At the hearing, MCLNO filed into evidence a copy of policy number 0040 entitled “MCL Violence Prevention and Management Policy and 17Procedures.” The effective date listed on the policy is November 8, 1995. In the section subtitled “Human Resources’ Responsibility” under part III(C), the third paragraph of that section states, “[a]ny employee who initiates a violent incident involving verbal, physical assaults and/or intimidation, shall be terminated.”

As stated previously, in his letter and grievance, Mr. Usun used language that threatened certain violent behavior and/or assaults. In accordance with MCLNO policy number 0040, Mr. Usun’s supervisor and departmental manager contacted Human Resources for guidance regarding suitable disciplinary action. Deborah Bartholomew, Human Resource Manager at MCLNO, advised Joyce Magonos, Ms. Giblin’s supervisor and the departmental manager, to notify the MCLNO police of the threats in the two documents and to place Mr. Usun on suspension pending an investigation. These actions were taken. Once MCLNO police were notified, officers Darensbourg and Chamberlain interviewed Mr. Usun, whereupon he allegedly made threats to harm Ms. Giblin’s children, which testimony was credited by the Civil Service Referee.

Based on this evidence in the record, we cannot say that the Civil Service Referee’s determination was arbitrary, capricious or an abuse of discretion. Furthermore, we agree with the Civil Service Referee’s holding that acts, or as in this case, threats of violence can constitute legal cause for dismissal. See Jones v. Department of Public Works, 573 So.2d 567 (La.App. 5th Cir.), writ denied, 577 So.2d 12 (La.1991); Flowers v. Department of Revenue and Taxation, 507 So.2d 240 (La.App. 1st Cir.), writ denied, 513 So.2d 286 (La.1987); Merchant v. Department of Finance, 391 So.2d 587 (La.App. 4th Cir.1980); Joseph v. Department of Health, 389 So.2d 739 (La.App. 4th Cir.1980); Paulin v. Department of Sanitation, 388 So.2d 136 (La.App. 4th Cir.1980). Hence, we find no merit in Mr. Usun’s first contention.

As to Mr. Usun’s second contention, he asserts that based on the rescission of the December 21, 1999 termination, MCLNO violated his due process rights by re-terminating him based on the same facts for which the first termination was attempted. This contention by Mr. Usun is without merit. If a termination is reversed or rescinded due to procedural defects, the employer can re-use the same conduct to support a subsequent termination. Baker v. Southern University, 590 So.2d 1313, 1316 (La.App. 1st 1991). Furthermore, the rescission of the first termination “was similar to a judgment as of nonsuit, to which an application of res judicata would be inappropriate, no determination having been made on the merits.” Butler v. Department of Health and Human Resources, Office of Family Security, 432 So.2d 1000, 1002 (La.App. 1st Cir.1983).

MCLNO asked the director of the Civil Service to rescind the first termination because the certified mail, return receipt form received by them indicated that Mr. Usun did not receive the letter of termination until December 29, 1999, after the effective date of termination. The Civil Service Referee granted the request and the December 21, 1999 termination was rescinded. Clearly the failure to present the letter to Mr. Usun before the effective date of termination was merely a procedural defect, and as such, would not preclude Mr. Usun’s re-termination based on the same conduct that supported the first termination.

In regard to his re-termination, Mr. Usun briefly refers to the fact that he was not allowed to resume his work duties following the re-termination and alleges that he never received official notice of either termination. As noted in the decision of the Civil Service Referee, Civil Services Rule 11.9 ^provides that at an appointing authority may require an employee to take part of their annual leave and Rule 11.29(d) provides that an appointing authority may require an employee to take all or part of their compensatory leave. Ms. Bartholomew explained at the hearing that after the rescission, depending on the situation, MCLNO had the choice of either allowing Mr. Usun to resume his duties or to place him on forced leave. She testified that MCLNO decided to place Mr. Usun back on forced leave pending his re-termination. The Civil Service Referee concluded that MCLNO did not violate Civil Service Rules in taking this course of action. We find no error in this determination by the Civil Service Referee. See Baker, 590 So.2d at 1316.

Finally, as to Mr. Usun’s assertion that he did not receive official notice of either termination, we find that proper notice was given to Mr. Usun regarding the second termination. At the hearing before the Civil Service Referee, counsel for MCLNO took the stand to testify of the extensive measures he took to ensure that Mr. Usun received timely notice of the second termination. The following is part of that testimony:

Based upon conversations that I have had with both the Human Resources Department and with the Pathology Department, I was impressed that there was a real problem in attempting to get verification of mail to Mr. Usun... .We had already had a problem with the first termination action in December and because it was apparently not received timely or at least we could not prove that it was received timely, we had to withdraw that action. Therefore, in connection with Ms. Linda Jones, I had her prepare eight identical letters of termination just to avoid the prospects of [Mr. Usun] getting a letter that was only a copy of a letter... and because I had some suspicions about whether or not Mr. Usun was purposely avoiding services on these, I embarked upon a plan to send half of the letters to one address, which was a P.O. Box 53022, and the other half of the letters to an address on Bundy Road.... Now, half of the letters were mailed in New Orleans, four were mailed in New Orleans. Four were mailed in Baton Rouge. Of the four that were mailed in New Orleans, two were mailed to the Bundy Road address and two were mailed to the P.O. Box. Out of the two mailed to |inthe P.O. Box, one was mailed with a simple certificate of mailing. The other was mailed by certified mail with a return receipt requested.

MCLNO’s counsel further testified that he acted similarly in sending the two letters to the Bundy address (one simple certificate, and one certified mail with a return receipt) and the four letters from Baton Rouge (two to the P.O. Box, and two to the Bundy Road address). He also stated that the four letters sent from Baton Rouge were postmarked March 23, 2000, one of the New Orleans letters was postmarked March 24, 2000, and the remaining three New Orleans letters were postmarked March 29, 2000. The effective date of termination in the second termination letter was April 6, 2000.

Proof of deposit in the mail creates a prima facie presumption of delivery which may be rebutted by positive evidence of lack of delivery or receipt. Conoco, Inc. v. Tarver, 600 So.2d 889, 890 (La.App. 1st Cir.), writ denied, 604 So.2d 1305 (La.1992). Furthermore, Civil Service Rule 12.8(d)(2) states that written notice can be considered as given when “on the 7th calendar day after it is mailed to the employee, with correct postage, at the most recent address he furnished in writing to his personnel office.” On the grievance Mr. Usun filed with MCLNO’s Human Resources, he listed P.O. Box 58022, New Orleans, LA 70153 as his mailing address. MCLNO presented proof that that it deposited the requisite notices in the mail, therefore it is entitled to the presumption of delivery and a finding that written notice was given. We, thus find no error in the Civil Service Referee’s determination that Mr. Usun’s termination was proper.

^CONCLUSION

Therefore, having considered the law and evidence, we find that the Civil Service Referee did not abuse her discretion in upholding the disciplinary action imposed and thus affirm her decision. All costs of this appeal are assessed to the appellant, Oko Usun.

AFFIRMED.

      . It is noted that although Mr. Usun raises several assignments of error, many of which are duplicative, in his brief he does not discuss each assignment individually. Instead, only a general "Summary of Argument and Authorities" was presented, wherein Mr. Usun asserts that his re-termination following the rescission violated his rights to due process and should have been considered "administrative res judicata.” The remainder of his argument centers on pointing out portions of the testimony of one witness, Donald Wol-ford.

      . In her findings of fact, the Civil Service Referee quotes specific language from the Giblin letter, including the statement: "You have caused me so much pain all I want to do whenever I see you is to strangle you and you are going to pay for this.... I am fighting back and you are going to get pure unadulterated 'Hell' from me.” As for the grievance, the Civil Service Referee noted that Mr. Usun filed it to protest the alleged attempt to deprive him of "k-time” and quotes the following from that document as Mr. Usun’s response to that attempt: "I will have no choice but to view this as an active potent aggression and will fight back using any means available including the use of lethal force.”

      . MCLNO did introduce a copy of one of the letters sent from Baton Rouge that had been returned unclaimed. The unclaimed letter was certified, return receipt and was sent to the Bundy Road address. None of the other letters were returned.