author: JjSAUNDERS, J.

text:
    Dwight HICKMAN v. JIM SMITH LOGGING, et al.
    No. WCA 04-157.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 2004.

      Marcus Miller Zimmerman, Attorney at Law, Lake Charles, LA, for Plaintiff Ap-pellee, Dwight Hickman.
    H.O. Lestage, III, Attorney at Law, DeRidder, LA, for Defendant Appellant, American Interstate Ins. Co., Jim Smith Logging.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   JjSAUNDERS, J.

Issues on appeal to this court arise out of an employment relationship. Dwight Hickman was an employee of Jim Smith Logging when he suffered a back injury. At that time, Jim Smith Logging was insured by American Interstate Insurance. Mr. Hickman filed a 1008 claim form for compensation, but this request was denied by Jim Smith Logging. The Office of Workers’ Compensation granted Mr. Hickman’s request and denied the employer’s affirmative defense based on La.R.S. 23:1208.1.

FACTS

On the morning of July 24, 2001, Dwight Hickman called Jim Smith to discuss a job opportunity. After some discussion, Mr. Smith told Mr. Hickman to report to the job site the following morning. Mr. Smith and Mr. Hickman both testified to the fact that it is customary in the logging business to hire someone verbally when that person’s logging reputation is known. Mr. Hickman reported and was put to work as a saw hand. On that day or at some later date, he was given an employment application and medical questionnaire. Mr. Hickman was allowed to take these forms home to complete, rather than complete them on the job site prior to starting work. Mr. Hickman began his job that day.

Mr. Hickman took the forms home, and Debby Draper, a female acquaintance who lived in the home with him, completed the forms while he prepared for work. Mr. Hickman testified that the forms had to be returned before he could collect a pay check. Ms. Draper initially began to complete the forms by asking him the questions, but then completed the forms based on her own knowledge. She marked “no” to the question asking whether a doctor had ever restricted his activities and “no” to whether he had ever been assessed any percentage of permanent disability. Ms. Draper [¡.testified that she did not know of the prior back injury and that she did not read the warning on the application. Ms. Draper placed an “X” beside each line Mr. Hickman needed to sign, and he later signed where indicated.

The form is dated July 25, 2001, and Mr. Hickman received an advance on his pay check on July 26, 2001. Mr. Hickman received his first actual payroll check on August 4, 2001. On June 8, 2002, while at work, Mr. Hickman suffered a “glitch” in his back. This was the beginning of his vacation period and during that period he saw a doctor. The doctor informed him that it was not a serious injury; therefore, Mr. Hickman did not request any type of compensation. After the vacation ended, he returned to work. On July 15, 2002, he suffered a work-related injury as his back gave out. On July 18, 2002, he returned to work and was interviewed by Dewayne Sanders. During the course of this statement, Mr. Hickman informed Mr. Sanders of his previous back injury. Aso, in a statement to Mickie Clopton of American Interstate Insurance, Jim Smith Logging’s compensation carrier, Mr. Hickman informed her of his prior back injury, which occurred in 1993 while he was employed with Wal-Mart. Mr. Hickman’s application for compensation was denied by his employer.

PROCEDURAL HISTORY

Shortly after suffering the work-related back injury, the claimant filed a 1008 claim form. Jim Smith Logging denied claimants’ compensation request based on an affirmative defense arising under La.R.S. 23:1208.1. On October 30, 2003, the Office of Workers’ Compensation decided in favor of the claimant, Mr. Hickman. Jim Smith Logging filed a timely, suspensive appeal on December 12, 2003. Mr. Hickman [.¡answered the appeal and asked for penalties and attorney fees.

ASSIGNMENTS OF ERROR

The defendant, Jim Smith, raises the first and second assignments of error. The third assignment of error is raised by the claimant, Mr. Hickman.

1) Did the Workers’ Compensation Judge err in failing to find that the claimant’s failure to answer truthfully the medical questionnaire portion of the application for employment and to disclose his previous medical treatment for a herniated lumbar disc directly related to the present medical condition?
2) Did the Workers’ Compensation Judge err in failing to order the forfeiture of benefits by the claimant and awarding him supplemental earnings benefits and medical benefits despite his failure to answer the medical questionnaire truthfully?
3) Did the Workers’ Compensation Judge err in denying claimant’s claim for penalties and attorney fees?

LAW AND ANALYSIS

Findings of the trial court are reviewable on appeal, and the appellate standard of review has been clearly established. A trial judge’s findings of fact will not be disturbed unless they are manifestly erroneous or clearly wrong. Stobart v. State, through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). “Absent ‘manifest error’ or unless it is ‘clearly wrong,’ the jury or trial court’s findings of fact may not be disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La.1990). “If the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. at 1112.

ASSIGNMENT OF ERROR NUMBER ONE

|4The defendant’s first assignment of error concerns the untruthful statement and the connection of that statement to the new injury. The relevant statute for' determining whether a claimant’s statements on an employment application or medical questionnaire may result in forfeiture of those requested benefits is La.R.S. 23:1208.1, which provides:

Nothing in this title shall prohibit an employer from inquiring about previous injuries, disabilities, or other medical conditions and the employee shall answer truthfully; failure to answer truthfully shall result in the employee’s forfeiture of benefits under this Chapter, provided said failure to answer directly relates to the medical condition for which a claim for benefits is made or affects the employer’s ability to receive reimbursement from the second injury fund. This Section shall not be enforceable unless the written form on which the inquiries about previous medical conditions are made contains a notice advising the employee that his failure to answer truthfully may result in his forfeiture of worker’s compensation benefits under R.S; 23:1208.1. Such notice shall be prominently displayed in bold faced block lettering of no less than ten point type.

A) Was the claimant’s statement untruthful?

The Workers’ Compensation Judge found that the claimant lacked the intent to deceive, stating:

The court believes, as was testified to by the owner of the company, Mr. Jim Smith, that there is a somewhat relaxed environment in the logging business. Mr. Smith indicated he hires employees from this generally close knit community on their reputation. In this case, Mr. Smith verbally hired the claimant. The job application was simply a technicality, which nobody really paid much attention to. This decision, today’s decision, turns on whether the claimant failed to list a previous — whether claimant’s failure to list a previous back injury was intentional untruthfulness. Sloppy it was, but not intentional untruthfulness. Poor paperwork is not intentional untruthfulness. Neither claimant nor the company spent the necessary time it should have on the important element of hiring — on this important element of the hiring process.

The Workers’ Compensation Judge considered the factual circumstances surrounding | fithe hiring of the claimant and determined that based on the facts before the court, the claimant did not have the intent to deceive the defendant.

The defendant contends that the claimant made a false statement and thus should be held accountable for it. The defendant argues that the claimant’s lack of intent does not remove the statement from the realm of falsity. “A survey of cases indicates that an employee/applicant has failed to answer truthfully only when he clearly indicates “no” on the employer’s questionnaire, denying the existence of a known medical condition.” Boh Bros. Constr. Co. v. Price, 00-2238 (La.App. 4 Cir. 8/29/01), 800 So.2d 898, at 901, writ denied, 01-2623 (La.12/14/01), 804 So.2d 634. The claimant took the forms home, and Ms. Draper completed the forms while he prepared for work. Ms. Draper placed an “X” beside each line Mr. Hickman needed to sign, and Mr. Hickman later signed in the designated places. The claimant argues that he did not complete the form, but merely signed it. The defendant counters this with the argument made in Boh Bros., “it is well settled that a person who signs a written instrument is presumed to know its contents and cannot claim that he or she did not read or understand the document.” Id. at 902. The defendant proposes that by signing the questionnaire, Mr. Hickman adopted the contents of it as his own and thus, made a false statement.

We disagree with our brethren of the fourth circuit and choose not to adopt their reasoning on this matter. The Workers’ Compensation Judge found that the claimant did not have any intent to deceive, but the answers were in fact untruthful. We agree, and, applying the manifest error rule, determine that there is no question that his answers were untrue, but affirm the Workers’ Compensation Judge’s ruling | (¿hat he did not have the intention to deceive. Discussing La. R.S. 23:1208.1, the court in Nabors Drilling USA v. Davis, 03-0136, p. 6 (La.10/21/03), 857 So.2d 407, 414, stated:

This proviso strikes a careful balance. It reflects the legislature’s recognition of the harshness of the forfeiture penalty and attempts to ameliorate the harshness of the penalty for the individual who is simply in the position of trying to obtain or maintain gainful employment, while at the same time preserving the goal of the second injury fund, which is to enhance employment opportunities for those who have been previously disabled.

It is well-established that “provisions of the worker’s compensation scheme should be liberally interpreted in favor of the worker.” Bynum v. Capital City Press, Inc., 95-1395, pp. 5-6 (La.7/2/96), 676 So.2d 582, 586. The jurisprudence suggests that when a statute is penal in nature it must be strictly construed. “Forfeiture is a harsh remedy; therefore, statutory forfeiture ... must be strictly construed.” Nabors 857 So.2d at 414. In a footnote in Nabors, the court discussed La.R.S. 23:1208, which provides a penalty for making a false statement for the purpose of obtaining, or defeating workers’ compensation benefits, and 23:1208.1 and stated, “[i]n enacting separate anti-fraud statutes, the legislature deliberately elected to treat the two types of falsehoods differently. That difference must be respected. Had the legislature intended that benefits terminate under La.R.S. 23:1208.1 based on the untruthful response alone, it could have so provided. It did not.” Id. at 415. This statement from Nabors supports our decision that one must possess the requisite intent to mislead the employer in order to trigger the forfeiture penalty imposed by La. R.S. 23:1208.1.

The claimant presents a second basis on which he contends that we should 17affirm the judgment of the Workers’ Compensation Judge, which is the failure of the untruthful statement to prejudice the employer. In Nabors, the court stated;

La.R.S. 23:1208.1 provides for forfeiture under three circumstances. There must be (1) an untruthful statement; (2) prejudice to the employer; and (3) compliance with the notice requirements of the statute. The employer has the burden of proving each of the elements required by the statute. The lack of any one of the elements is fatal to the employer’s avoidance of liability under the statute.

Id. at 414 (citations omitted).

B) Did the untruthful statement prejudice the employer?

For there to be prejudice to the employer, “[t]he untruthful statement must ‘directly relate [ ] to the medical condition for which a claim for benefits is made’, or it must ‘affect [ ] the employer’s ability to receive reimbursement from the second injury fund.’ ” Id. at 415.

1) What does it mean for a untruthful statement to directly relate to the injury?

In Wise v. J.E. Merit Constructors, Inc., 97-0684 (La.1/21/98), 707 So.2d 1214, the claimant injured his knee in 1991. In 1994, he became employed with a new company and completed a medical questionnaire. On the form he wrote “no” to knee injury but then scratched it out and left the arthritis question blank. On May 15, 1994, he suffered a knee injury and later underwent two knee surgeries. In August 1995, he filed a compensation claim and the employer argued that, due to his untruthful statement, he had lost all benefits. The Louisiana Supreme Court looked at whether the employer had been prejudiced by the claimant’s statement, and in this determination they adopted the inevitability test. The inevitability test requires a “direct relation” between the untrue statement and the new injury. “[A] direct relation |sis established when the subsequent injury was inevitable or very likely to occur because of the presence of the pre-existing condition.” Id. at 1220.

To determine whether Mr. Hickman’s statement was directly related to the present injury requires an evaluation of the doctor’s information. Dr. Clark A. Gun-derson treated the claimant for a prior back injury in 1993. The doctor wrote a letter to Mickie Clopton in which he discussed the prior diagnosis. For the 1993 injury, he diagnosed the claimant as having a mild disc herniation at L4-5, and an 8% impairment to the body as' a whole. The doctor had not seen the claimant since 1996. In June 2008, the doctor conducted an independent medical evaluation. Based on this evaluation, he indicated that claimant had a straining type of injury superimposed on a degenerative L4-5 disc. The doctor stated, the “mere presence of a dehydrated degenerative disc on any MRI does not make it inevitable that the patient will have low back symptoms in the future, as this is a normal aging phenomenon.”

More information concerning the claimant’s condition was obtained from Dr. Gun-derson’s deposition. Throughout the entire questioning session, Dr. Gunderson was not able to say that the new injury was “very likely” to occur or “inevitable.” The only time that he was able to come close to that was in a question specifically directed to an opinion held at the last visit by claimant to the doctor in 1996. Based on the new medical evaluation, the doctor was unable to say that the new injury was “very likely” or “inevitable” to occur. He was unable to make this determination, even in light of the fact that he held no knowledge of the logging industry and assumed the field to be one of a “heavy job” where people would have significant back problems whether they had good discs or bad discs. Both Mr. Smith and Mr. Hickman testified Rthat the logging industry, especially the position of saw-hand, was no longer as injurious as it once was. Also, the claimant was pain free for the past three years prior to the new injury, and the defendant was unable to present any medical evidence to suggest that the second injury was inevitable or likely to occur.

Based on our analysis today, we find that the untruthful statement does not directly relate to the present medical condition. On this issue, the defendant has failed to meet his burden.

ASSIGNMENT OF ERROR NUMBER TWO

The defendant’s second assignment of error concerns whether or not the trial court was correct in awarding benefits to the claimant. As previously discussed in assignment of error one, the employer was unable to prove that the claimant had the intent to deceive or that the untrue statement was directly related to the subsequent injury and that this statement has prejudiced the employer. Due to the employer’s inability to prove the required elements of La.R.S. 23:1208.1, we determine that the trial court’s award of benefits to the claimant was appropriate.

ASSIGNMENT OF ERROR NUMBER THREE

The plaintiff answered the appeal and requested penalties and attorney fees. However, we affirm the Workers’ Compensation Judge’s failure to grant penalties and attorney fees. Great deference is given to the trier of fact, and thus penalties and attorney fees are denied. “On review, a workers’ compensation judge’s determination as to whether penalties and attorney’s fees are appropriate is subject to the manifest error standard of review.” Jenkins v. Roy O. Martin Lumber, Inc., 03-1435, pp. 8-9 (La.App. 3 Cir. 3/3/04), 868 So.2d 250, 255, writ denied, 04-1140 (La.6/25/04), 876 So.2d 844. In order for the claimant to recover penalties and attorney fees, there must be a showing that the defendant did not raise a seriously disputed issue. “To reasonably controvert a workers’ compensation claim so as to avoid imposition of penalties and attorney fees, the employer and its insurer must provide sufficient factual and medical information to reasonably counter the evidence provided by the claimant.” Johnson v. Johnson Controls, Inc., 38,495, pp. 16-17 (La.App. 2 Cir. 5/12/04), 873 So.2d 923, 933-34. The defendant had a legitimate defense because the plaintiff failed to disclose his prior injury and this area has been the subject matter of much debate. It is unimportant that the defendant did not dispute every single point, as long as it raised a legitimate issue. Provision of worker’s compensation statute authorizing award of attorney fees to claimant is penal in nature and, thus, must be strictly construed and employer should not be penalized for taking close factual or legal question to court for resolution. Lindon v. Terminix Servs., Inc., 617 So.2d 1251, 1253 (La.App. 3 Cir.), writ denied, 624 So.2d 1226 (La.1993).

CONCLUSION

We therefore affirm the decision by the Workers’ Compensation Judge awarding compensation to Mr. Hickman. Costs of this appeal are assessed to the Jim Smith Logging.

AFFIRMED.


source: Caselaw Access Project

author: JjTHIBODEAUX, Chief Judge.

license: Public Domain

text:
    Michael SINEGAL v. Richard R. KENNEDY, et al.
    No. 04-299.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 2004.

      Lawrence Blake Jones, Pamela B. Lo-lan, Scheuermann & Jones, New Orleans, LA, for Plaintiff/AppellanU-Michael Sine-gal.
    Paul Holden Spaht, Sabrina L. Dennis, W. Scott Keaty, Kantrow, Spaht, Weaver & Blitzer, Baton Rouge, LA, for Defendant/Appellee-Richard R. Kennedy.
    Court composed of ULYSSES GENE THIBODEAUX, C.J., BILLIE COLOMBARO WOODARD, and OSWALD A. DECUIR, Judges.
   JjTHIBODEAUX, Chief Judge.

This case involves a legal malpractice claim brought by plaintiff, Michael Sinegal, against his former attorney, Richard Kennedy. Mr. Sinegal was injured in an accident at Guidry Hardware and Supply, Inc. (Guidry) and retained Mr. Kennedy as his attorney. Mr. Sinegal claims that Mr. Kennedy allowed prescription to run on a potential claim against Guidry. Mr. Kennedy filed a motion for summary judgment claiming that prescription was interrupted on the claim against Guidry. The trial judge granted Mr. Kennedy’s motion for summary judgment ruling that there were no genuine issues of material fact and that he was entitled to judgment as a matter of law. Essentially, the trial judge found that prescription had been interrupted by the payment of bills or benefits under the policy issued to Guidry. We agree with the trial court and affirm its judgment.

I.

ISSUE

Did the trial court err in granting summary judgment to the defendant? Stated differently, was prescription interrupted on Mr. Sinegal’s tort claim such that his legal malpractice claim against Mr. Kennedy is defeated?

II.

FACTS

On March 6, 2000, Mr. Sinegal was injured in an accident at Guidry in Scott, Louisiana. Mr. Sinegal stepped on a peg left on the floor by an employee who was putting up a display. Mr. Sinegal was in the course and scope of his employment with M & J Carpet Cleaning Services (M & J’s).

|90n or about April 18, 2000, Mr. Sinegal contacted Mr. Kennedy to represent him in a potential claim against Guidry. Mr. Kennedy did not file a suit on behalf of Mr. Sinegal within the one-year prescriptive period. Mr. Sinegal and Mr. Kennedy met on March 23, 2001, a few weeks after the March 6, 2001 prescriptive deadline. Mr. Kennedy gave Mr. Sinegal a copy of the documents in his file. He also gave Mr. Sinegal a copy of a letter he claimed to have mailed to Mr. Sinegal on December 22, 2000, in which he terminated their attorney/client relationship and advised him to retain new counsel and file suit promptly. Mr. Sinegal retained new counsel by April 2001. Mr. Sinegal filed suit on August 27, 2001, against Mr. Kennedy alleging legal malpractice.

From the time of the accident until August 2000, CNA Commercial Insurance (CNA), Guidry’s insurer, made payments on Mr. Sinegal’s claim. Thereafter, M & J’s workers’ compensation carrier started making payments to Mr. Sinegal until April 2001.

III.

LAW AND DISCUSSION

Summary Judgment

A motion for summary judgment is a procedural device used to avoid a full-scale trial if there is no genuine issue of material fact. Sanders v. Ashland Oil, Inc., 96-1751 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, unit denied, 97-1911 (La.10/31/97), 703 So.2d 29. Summary judgment shall be granted if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966 B. |3Summary judgment is favored in our law and “is designed to secure the just, speedy, and inexpensive determination of every action.” La.Code Civ.P. art. 966 A(2).

The burden of proof on a motion for summary judgment is set forth in La.Code Civ.P. art. 966 C(2):

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

Appellate courts, in determining whether summary judgment is appropriate in a case on appeal, review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Succession of Granger v. Worthington, 02-0433 (La.App. 3 Cir. 10/30/02), 829 So.2d 1108. The determination of materiality of a particular fact can be made only in light of the substantive law applicable to the case. Rener v. State Farm Mut Auto. Ins. Co., 99-1703 (La.App. 3 Cir. 4/5/00), 759 So.2d 214.

Prescription

Initially, we note that prescription statutes are to be strictly construed against prescription and in favor of upholding the obligation. Lima v. Schmidt, 595 So.2d 624 (La.1992). Thus, if there is a choice between two possible constructions, one which favors maintaining an action and one which favors barring it, an action should be adopted. Id. Louisiana Civil Code Article 3492 provides a one-year prescriptive period for delictual actions. The party asserting that prescription has Laccrued ordinarily bears the burden of proof. Compton v. St. Paul Fire & Marine Ins. Co., 01-386 (La.App. 3 Cir. 10/3/01), 796 So.2d 896. However, if the petition on its face reveals that prescription has run, then the burden shifts to the party not asserting prescription to show otherwise. Lima, 595 So.2d 624.

In this case, the legal malpractice petition filed in August 2001, on its face, shows that the applicable prescription period has run for the claim against Guidry. The accident occurred on March 6, 2000, but there was no suit filed against Guidry by March 6, 2001. Thus, Mr. Kennedy had the burden of proving that prescription was interrupted, suspended, or renounced. Mr. Kennedy argues that payments made by CNA constituted an acknowledgment of the obligation owed to Mr. Sinegal, and that this acknowledgment interrupted prescription. Mr. Kennedy further argues that filing of the workers’ compensation claim also interrupted prescription.

“Prescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe.” La.Civ.Code art. 3464. Acknowledgment is the recognition of the creditor’s right or obligation that halts the progression of prescription before it has run. Lima, 595 So.2d 624. If prescription is interrupted, the accrued time is erased and prescription runs anew from the date of interruption. La.Civ.Code art. 3466.

An acknowledgment in a delictual claim need not be in any particular form. Flowers v. United States Fid. & Guar. Co., 381 So.2d 378 (La.1980). Acknowledgment sufficient to interrupt prescription may be made verbally, in writing, by partial payment of interest or by pledge, or otherwise indicated by the facts and circumstances. Id. Delictual claims may even be tacitly acknowledged as noted by our supreme court:

|fiA tacit acknowledgment occurs when a debtor performs acts of reparation or indemnity, makes an unconditional offer or payment, or lulls the creditor into believing he will not contest liability.... Our courts have added to the above generalizations other criteria that evidence an acknowledgment, including undisputed liability, repeated and open ended reassurances of payment, and continuous and frequent contact with the creditor throughout the prescription period.

Lima, 595 So.2d at 634.

The facts in this case regarding prescription are undisputed. The record reveals that CNA paid $9,233.31 on Mr. Sinegal’s claim until August 2000. In accordance with the criteria noted above, we conclude that these payments constitute tacit acknowledgment. Mr. Sinegal argues that these payments were made under the med-pay portion of the policy and, thus, are not sufficient to constitute acknowledgment because they are due irrespective of liability. However, when CNA sent notice that Mr. Sinegal’s file would be closed, it listed these payments under “BODI,” the bodily injury section and not under “MEDP,” the med-pay section, indicating that these payments were for bodily injury. Furthermore, on a CNA form entitled “PAYMENT STATUS CHANGE REQUEST,” a handwritten note stated that “No med pay coverage applies” to Mr. Sinegal’s claim. Moreover, the trial court correctly noted that the payments were in excess of the medical pay policy limit of $5,000.00. Thus, even if CNA had paid $5,000.00 under med-pay, it paid an additional amount of $4,233.31 indicating that these extra payments were not med-pay. See Keller v. Nat’l Union Fire Ins. Co., 617 So.2d 893 (La.1993).

From this evidence, the trial court determined that there were no genuine issues of material fact and Mr. Kennedy was entitled to judgment as a matter of law. We agree with the trial court and, thus, affirm its judgment. Because we find that | ¿prescription was interrupted by payments made by CNA, we will not address the question of whether filing the workers’ compensation claim interrupted prescription.

IV.

CONCLUSION

For the above reasons, the judgment appealed from is affirmed. Costs of this appeal are assessed to Michael Sinegal.

AFFIRMED.


author: | t SAUNDERS, J.

text:
    Rita DAUTRIEL v. AMERICAN RED CROSS OF SW LOUISIANA.
    No. WCA 04-254.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 2004.

      Kevin Louis Camel, Cox, Cox, Filo & Camel, Lake Charles, LA, for Plaintiff/Appellant, Rita Dautriel.
    Amanda G. Clark, Forrester, Jordan & Dick, Baton Rouge, LA, for Defendant/Ap-pellee, American Red Cross of SW Louisiana.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   | t SAUNDERS, J.

Issues on appeal to this court arise out of an employment relationship. Rita Dau-triel, appellant, was injured in a work-related accident while employed by the American Red Cross of Southwest Louisiana. Rita Dautriel filed a claim in the Office of Workers Compensation, and the American Red Cross countered with a plea of prescription, which the Office of Workers Compensation granted.

FACTS

Rita Dautriel’s job position was that of a bingo session manager employed for the American Red Cross of Southwest Louisiana. She worked two days a week and was paid $50.00 per bi-weekly bingo session. She was also paid a $100.00 stipend for doing the bookkeeping for these bingo sessions. On January 23, 2001, Rita Dau-triel sustained an injury while employed by the American Red Cross. She was injured during a bingo session when she lost her footing on a platform and fell. She received medical treatment for her injuries and continued to work until September 22, 2001, when she sustained a second injury. She once again received medical treatment for these injuries and continued to work, but with modifications as she was no longer able to lift heavy objects. In all other respects, she continued to perform her job duties. On June 30, 2002, Rita Dautriel’s position with the American Red Cross was eliminated. On elimination of her job position, Rita Dau-triel requested disability payments from the American Red Cross but was refused. PROCEDURAL HISTORY

Rita Dautriel filed a claim for compensation in the Office of Workers Compensation on March 25, 2003. American Red Cross filed an exception of prescription which the Workers’ Compensation Judge granted on December 3, 2003, | ¡¿hereby dismissing Rita Dautriel’s claims. Rita Dautriel timely filed a motion for devolu-tive appeal on December 31, 2003.

ASSIGNMENTS OF ERROR

1) The Office of Workers Compensation erred in its decision to grant American Red Cross’ exception of prescription.
2) Rita Dautriel is entitled to an award of penalties and attorneys’ fees.

LAW AND ANALYSIS

The standard of review for findings of the trial court has been clearly established in this circuit. A court of appeal may not set aside a judge’s factual finding unless that finding was manifestly erroneous or clearly wrong. Stobart v. State, through Dep’t. of Transp. & Dev., 617 So.2d 880 (La.1993). “Absent ‘manifest error’ or unless it is ‘clearly wrong,’ the jury or trial court’s findings of fact may not be disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La.1990). “If the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. at 1112.

ASSIGNMENT OF ERROR NUMBER ONE

The first assignment of error concerns the Office of Worker’s Compensation decision that Dautriel’s claim was untimely. We find merit in this assignment and therefore reverse the decision of the Office of Workers Compensation and remand.

The relevant statute for determining the prescriptive period is “La.R.S. 23:1209(A)”

In case of personal injury, including death resulting therefrom, all claims | ¡¡for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in subsection B of this section and in this chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4). Also when the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedinys have been begun within two years from the date of the accident.

The highlighted concept is referred to as the “developing injury rule,” and application of this concept permits the injured employee to bring a claim within one year of the development of disability.

This court has consistently held that an employee who suffers a work-related injury that immediately manifests itself, but only later develops into a disability, has a viable cause of action until one year from the development of the disabling injury, rather than from the first appearance of symptoms or from the first date of treatment.... Thus, the “developing injury rule” has been applied not only when the injury does not manifest itself immediately, but also when the employee, after an accident in which injury is immediately apparent, continues to attempt employment duties until he or she is finally disabled from doing so.
The underlying rationale for this interpretation is that an injured employee who continues to work, despite a work-related medical condition which is painful but not then disabling, should not be penalized for attempting to remain in the work force in order to support his or her family in the hope that the condition will improve. Requiring any injured employee, who is not yet disabled, to assert his or her claim within one year of the accident in order to preserve the cause of action would encourage needless litigation.
Sevin v. Schwegmann Giant Supermarkets, Inc., 94-1859, pp. 4-5 (La.4/10/95) 652 So.2d 1323, 1326 (citations omitted).

When the employer is no longer willing to provide a “modified job” the ^employee is then disabled. Closing business is one way of not providing a modified job, and this clearly activates the developing injury rule.

In Desselle v. Dresser Industrial Valve, 96-374 (La.App. 3 Cir. 2/5/97), 689 So.2d 549, writ denied, 97-0618 (La.4/25/97), 692 So.2d 1086, Samuel Desselle was injured August 29,1989 and did not return to work until November 21, 1993. On January 20, 1994, he suffered a second injury and was unable to return to work until August 28, 1994. Mr. Desselle filed suit for declaratory judgment on compensation. However, the court was unable to grant Mr. Desselle his requested relief because he failed to present a justiciable issue. The problem was that Mr. Desselle was employed at the time of the suit by the employer he worked for when he suffered his injuries. The employer had modified his job duties to allow for his injuries, and he was earning more money at the time of the suit than he had prior to sustaining any of the injuries.

In Maiden v. Crossroads of Louisiana, Inc., 95-1985 (La.App. 4 Cir. 7/24/96), 678 So.2d 75, writ denied, 96-2145 (La.11/8/96), 683 So.2d 279, Maxine Maiden suffered a knee injury during employment activities on November 20, 1992. She continued to work until she was fired (for reasons unrelated to her injuries) on December 28, 1992. During the course of 1993 she received medical treatment for the injury. On November 24, 1993, she filed a claim for compensation with the Office of Worker’s Compensation. The court held “Maiden had a ‘developing injury’ which manifested itself as disabling no earlier than December 28, 1992 and her claim was timely filed on November 24, 1993.” Id. at 77. The court went on to state; “To further that policy, the phrase ‘the time the injury develops’ in last sentence of La. R.S. 23:1209(A) is liberally construed where the worker attempts to continue working Runtil no longer able to perform his or her employment duties.” Id.

The court refused to find that her disability began prior to December 28, 1992, the date of termination of employment. “However the injury was not disabling and Maiden continued to work until December 28, 1992 when she was fired. Her injury became disabling on or after December 28, 1992 and she did not have a cause of action for a total disability claim until that time. Thus, her claim was timely on November 24,1993.” Id. at 77-78.

Maiden, just as Rita Dautriel, lost her employment position. In Maiden, the court found that she did not become disabled until the date of firing. Using this same analysis, Rita Dautriel did not become disabled until her job position was eliminated; therefore, the one year prescriptive period began to run on that date.

In Aguiar v. Marriott Corp., 93-0563 (La.App. 4 Cir. 1/27/94) 632 So.2d 398, plaintiff began to experience difficulties with her hand in October 1990. In November 1990, the doctor recommended a two-week period off from work. On December 4, 1990, the doctor reported that Aguiar was doing better but should wear a brace and refrain from polishing with her right hand. On December 5, 1990, Aguiar either resigned because she was unable to work or was released because there were no modified duties available. On November 19, 1991, Aguiar filed a claim for compensation in the Office of Worker’s Compensation. The defendants argued prescription. The court of appeal held that the claim was timely where claimants legal disability manifested itself as of date employer informed her that no unskilled work other than silver polishing was available.

In all the discussed cases, there was some incident of employment termination | ^either by the employer or the employee, and the court held that the date of termination began the one year prescriptive period.

This same analysis applies to the present claimant. Claimant suffered the second injury on September 22, 2001, and her job was terminated on June 30, 2002. Applying the developing injury rule in the last sentence of the statute, a claimant has one year from the date of termination to file suit. She could file no later than June 30, 2003. The claimant timely filed on March 25, 2003.

Because the claimant’s cause of action is not prescribed, we therefore reverse and remand the case. The issue of penalties and attorney fees is reserved for a finding by the Workers’ Compensation Judge. CONCLUSION

We reverse the decision rendered by the Office of Workers Compensation, thus finding that Rita Dautriel’s claim for compensation has not prescribed. This case is, therefore, remanded for further proceedings. Costs of this appeal are to be paid by the Defendant.

REVERSED & REMANDED.


text:
    Michael NEWELL v. UNITED BILT HOMES, INC.
    No. WCA 04-202.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 2004.

      H. Douglas Hunter, Guglielmo, Lopez, Et Al, Opelousas, LA, for Secondary Defendant/Appellant/Appellee, United Bilt Homes, Inc.
    Robert Thomas Jacques, Jr., Attorney at Law, Lake Charles, LA, for Plaintiff/Appellant/Appellee, Michael Newell.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   JjSAUNDERS, J.

The issues on appeal to this court arise from a dispute about worker’s compensation benefits. Michael Newell, a resident of Texas, was working on a construction project in Starks, Louisiana when he was injured on the jobsite. Mr. Newell has not returned to work and the parties dispute the availability of Louisiana worker’s compensation benefits and whether or not Mr. Newell is disabled.

FACTS

Michael Newell, a resident of Silsbee, Texas, sustained an injury during the course and scope of his employment when he slipped off of a step ladder and fell backwards. Mr. Newell was in the process of installing sheet rock when the accident occurred. After falling, he finished installing the piece of sheet rock that he had been working with and called his employer, United Bilt Homes, Inc. (hereinafter referred to as “United”), to report the incident. United is registered with the Louisiana Secretary of State, has offices in Shreveport and Baton Rouge, and maintains a bank account in Shreveport. Mr. Newell attempted to return to work in the days following the accident; however, he ultimately stopped working and sought medical attention. Mr. Newell was treated initially at St. Elizabeth Hospital for pain in the left side of his neck and left shoulder. He was then treated on a follow-up basis by his family physician, Dr. Joseph Finley. Subsequently, the Louisiana United Business Association (hereinafter referred to as “LUBA”) had Mr. Newell examined by an orthopaedic surgeon, Dr. Curtis Thorpe, and a neurosurgeon, Dr. John Raggio. A cervical MRI, which revealed multilevel degenerative disc desiccation, was performed on August 9, 2001 and Dr. Raggio recommended physical therapy after seeing Mr. Newell on August 16, 2001. Mr. Newell was next seen by a | ¿neurosurgeon, Dr. Ian Angelle, who recommended an MRI of the left shoulder and referral to both an orthopaedic surgeon specializing in the shoulder region and a pain clinic. Mr. Newell was treated for some time by Dr. Dumitru, a pain management specialist, before visiting another neurosurgeon, Dr. Luiz DeAraujo. Dr. DeAraujo ordered a cervical fusion and restricted Mr. Newell to purely sedentary types of work.

PROCEDURAL HISTORY

As a result of the September 18, 2000 accident, Mr. Newell filed a claim for Louisiana Worker’s Compensation on November 13, 2000. United answered admitting that Mr. Newell was an employee at the time of the accident and denying that an injury was sustained. The matter was tried on February 27, 2002. Judgment was rendered on May 17, 2002 providing that Mr. Newell was entitled to Louisiana Worker’s Compensation benefits, penalties of $2,000, and attorney fees of $5, 000.

United moved for a new trial on May 29, 2002 which was granted on September 11, 2002. Subsequently, on March 21, 2003, judgment was rendered vacating the previous judgment and providing that Mr. New-ell was entitled to “Worker’s Compensation benefits,” but not “disability benefits,” penalties, or attorney fees. Mr. Newell then moved for a new trial on March 26, 2003. That motion was denied on November 4, 2003. Both parties have appealed. PLAINTIFF’S ASSIGMENTS OF ERROR

1) The worker’s compensation judge committed manifest error and was clearly wrong in failing to award worker’s compensation benefits for temporary total disability.
2) The worker’s compensation judge committed manifest error and was clearly wrong in failing to grant claimant a new trial.
| a3) The worker’s compensation judge committed manifest error and was clearly wrong in failing to award claimant penalties and attorney fees.

DEFENDANT’S ASSIGNMENT OF ERROR

1) The worker’s compensation judge committed manifest error in allowing Michael Newell, a Texas resident, employed by a Texas company, to receive Louisiana worker’s compensation benefits.

LAW AND ANALYSIS

The standard of review for findings of the trial court has been clearly established in this circuit. A court of appeal may not set aside a judge’s factual findings unless that finding was manifestly erroneous or clearly wrong. Stobart v. State, through Dep’t. Of Transp. & Dev., 617 So.2d 880 (La.1993). This court has also concluded that interpretations of choice of law determinations are reviewed to determine if the trial court committed an error of law. Foshee v. Torch Operating Co., 99-1863 (La.App. 3 Cir. 6/17/00), 763 So.2d 82, writ denied, 00-2302 (La.10/27/00), 772 So.2d 658. Finally, the applicable standard of review for a trial court’s ruling on a motion for new trial is abuse of discretion. Boudreaux v. Wimberley, 02-1064 (La.App. 3 Cir. 4/2/03), 843 So.2d 519, writ denied, 03-1251 (La.9/5/03), 852 So.2d 1037. Because United’s assignment of error involves a choice of law issue it will be addressed first.

UNITED’S ASSIGNMENT OF ERROR

United’s only assignment of error concerns the trial court’s finding that Louisiana law applies to the dispute and allows Mr. Newell, a Texas domiciliary, to recover Louisiana worker’s compensation benefits. United correctly asserts that Civil Code article 3544 is controlling because this case involves “issues of loss distribution and financial protection.” La.Civ. Code art. 3543 cmt (a); Foshee, 763 So.2d 82. | ¿United alleges that both parties are domiciled in Texas; therefore, Texas law should be applied pursuant to Article 3544(1). This contention is without merit. Defendant corporation is registered with the Louisiana Secretary of State, paid plaintiff with a check drawn from a Louisiana bank, admitted being a Louisiana corporation in its answer, stipulated to being a Louisiana corporation at the trial of this matter, and withheld funds for Louisiana worker’s compensation.

We find United to be domiciled in Louisiana thereby making the provisions of Civil Code article 3544(2) applicable here. That article provides that, when the parties are domiciled in different states and both the injury and the conduct causing the injury occur in one of those states, the law of the state where the injury and conduct occurred should be applied. La. Civ.Code art. 3544(2)(a). As previously noted, Mr. Newell and United are domiciled in Texas and Louisiana respectively. Furthermore, the injury occurred in Louisiana. Consequently, pursuant to article 3544(2)(a), Louisiana law applies to the matter at hand. The decision of the trial court in this regard is affirmed.

PLAINTIFF’S ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

Plaintiff claims that the trial court erred in failing to award benefits for temporary total disability. At trial, Mr. New-ell’s medical records were introduced, as well as documents purportedly bearing on the choice of law issue that has already been determined by this court. Mr. New-ell testified on his own behalf, as did his father-in-law, who was working with him at the time of the accident, and his wife. Defendant called no witnesses at trial. Mr. Newell relayed his treatment history to the court and testified that he was still being treated by a pain management specialist |Rand had not returned to work. His father-in-law testified to witnessing the accident. Finally, Mr. Newell’s wife corroborated her husband’s testimony stating that he had not returned to work despite having a strong work record in the past.

Following trial on the merits, a judgment was rendered on May 17, 2002 providing that Mr. Newell was entitled to “Louisiana Workers’ Compensation benefits” and that “defendant failed to reasonably controvert” the claim resulting in assessment of penalties and attorney fees. Subsequently, defendant moved for a new trial claiming that the judgment was contrary to the law and evidence and unclear in that it did not state whether the “benefits” were for medical expenses or indemnity for disability. Specifically, defendant claimed that the OWC’s award of “benefits” implicitly referred only to medical expenses because disability benefits must be specifically set forth by the court. Furthermore, defendant argued that if the trial court had indeed intended to provide disability benefits, a new trial was warranted because plaintiff had offered no proof of a disabling condition. Defendant also argued that the claim had been reasonably controverted.

Plaintiff agreed that a new trial was necessary to clarify the same language in the judgment that defendant referred to, namely that “the claimant is entitled to Louisiana Workers’ Compensation benefits.” Plaintiff, however, argued that the OWC clearly intended to award disability benefits as indicated by the award of penalties and attorney’s fees. Both parties stipulated that all of Mr. Newell’s medical expenses had been paid at the time of trial. Both parties agree that penalties and attorney fees are only available when an employer withholds benefits without reasonably controverting the issue. Accordingly, plaintiff argued that, since | fidefendant paid for Mr. Newell’s medical expenses, the OWC could only have awarded penalties and attorney’s fees for defendant’s refusal to pay disability benefits without reasonably controverting that issue. Therefore, plaintiff maintained, the reference to benefits in the judgment must have been to disability benefits.

On September 11, 2002, the OWC granted defendant’s motion for new trial. In lieu of conducting another trial, a second judgment was eventually rendered based upon the record alone. This second judgment vacated the prior judgment and provided that Mr. Newell was entitled to ‘Worker’s Compensation Benefits” but not to “disability benefits.” This ruling was based on the workers’ compensation judge’s finding of fact that the only medical evidence regarding a disability was the records from St. Elizabeth Hospital releasing Mr. Newell to return to work without restriction on September 27, 2002. The judgment further provided that penalties and attorney’s fees were not due.

After rendition of the second trial judgment, Mr. Newell timely moved for a new trial arguing that the second judgment was contrary to the evidence. Plaintiff argued that a disability had been established by medical evidence and lay testimony. Plaintiff further argued that, at a minimum, he was entitled to disability benefits from the date of the accident to the time he was cleared by St. Elizabeth to return to work. On August 27, 2003, the day before Mr. Newell’s motion for new trial was heard by the trial court, plaintiff filed a second memorandum in support of the motion for new trial. Attached to that memorandum was a letter from a neurosurgeon, Dr. Luiz DeAraujo, in which the doctor stated that Mr. Newell should be restricted to purely sedentary types of work. Dr. DeAraujo opined that Mr. Newell might be able to Rreturn to more strenuous types of work after completing an involved recovery program. Plaintiff argued that this new evidence necessitated a new trial.

A new trial may be granted when a party discovers important evidence after the trial that could not have been discovered with due diligence before or during trial. La.Code Civ.P. art.1972. Dr. DeAr-aujo’s letter was not drafted until after the trial terminated; therefore, it would have been impossible for Mr. Newell to have discovered it before or during trial. The letter is dated June 18, 2003 and was addressed to Risk Management Services. The record does not indicate when this evidence was relayed from the Risk Management office to plaintiff; however, we know that it was introduced on August 27, 2003. While it is clear that the letter was introduced, the record does not indicate how much weight it was given by the trial court. Plaintiffs motion for new trial was denied without reference to Dr. DeArau-jo’s opinion.

We find the medical opinion of Dr. DeAraujo to be sufficiently important so as to warrant further investigation. Consequently, we hold that the trial court’s denial of plaintiffs motion for new trial was an abuse of discretion given the newly discovered evidence. We reverse the trial court’s denial of Mr. Newell’s motion for new trial and remand this matter for further proceedings in accordance herewith.

PLAINTIFF’S ASSIGNMENT OF ERROR NUMBER THREE

Due to the remand of this matter for new trial, addressing plaintiffs assignment of error regarding penalties and attorney’s fees would be premature at this time. These are issues for the new trial.

I «CONCLUSION

We affirm the trial court’s application of Louisiana law in awarding worker’s compensation benefits to Mr. Newell. We reverse the trial court’s denial of Mr. Newell’s motion for new trial regarding disability benefits and remand the case so that the new evidence may be considered. Costs of this appeal are assessed to defendant.

AFFIRMED IN PART, REVERSED IN PART, REMANDED.

SULLIVAN, J., concurs in the result.


author: 1, SAUNDERS, J.

text:
    Edwin J. DUPUIS v. PICARD STEEL ERECTORS, INC.
    No. WCA 04-172.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 2004.

      Michael Keith Leger, DeJean & Leger, L.L.C., Opelousas, LA, for Plaintiff-Appellant, Edwin J. Dupuis.
    Debra Talbot Parker, Johnson, Stiltner & Rahman, Baton Rouge, LA, for Defen-danb-Appellee, Picard Steel Erectors, Inc.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   1, SAUNDERS, J.

Edwin Dupuis was an employee of Pi-card Steel Erectors, Inc., when he allegedly suffered a work-related injury. He received workers’ compensation benefits for a year and a half before they were terminated. On termination, he filed a 1008 claim. The Workers’ Compensation Judge denied Mr. Dupuis’ request based on La. R.S. 23:1208.1

FACTS

In 1982, Mr. Dupuis suffered a work-related injury while employed with S & S Steel. This injury occurred when he fell twenty-four feet off a building. He received workers’ compensation benefits for that injury for approximately 16 years. In 1997, he began constructing carports.

In August 2000, Mr. Dupuis and his wife, Tina, went to Picard Steel Erectors, Inc., where Mr. Dupuis applied for a job. Mrs. Dupuis testified that she completed the employment application due to Mr. Dupuis’ limited educational background. The following day, Mr. Dupuis reported to work and at some point was given a medical questionnaire to complete. There is some dispute as to what form he was given and who completed the form. However, Mr. Dupuis did state that he signed a form provided to him by Jeff Picard, the owner of Picard Steel Erectors, Inc. The medical questionnaire contained a check mark in the “no” box for every medical condition listed.

In January 2001, a delivery driver of S & S Steel saw Mr. Dupuis at Picard Steel and asked Troy Thomasee, a supervisor, about Mr. Dupuis’ previous injury and his overall health. Mr. Thomasee then told Mr. Picard of the delivery driver’s comments. Mr. Dupuis stated that Mr. Picard asked him about the incident and, at | ?that time, he informed Mr. Picard of the prior accident and injury, but indicated that he was currently pain free. It appears that nothing was ever done in reference to- the new information. The medical questionnaire was not revised, and Mr. Dupuis remained an employee.

Mr. Dupuis contends that on April 16, 2001, he suffered a back injury while manually pulling a bar joist, weighing 150-200 pounds, from the ground to the second floor. Somehow the rope slipped, causing a jerk in the claimant’s back. It is unclear whether the other co-workers knew of the injury immediately thereafter, but Mr. Thomasee, the supervisor, was informed that day or the following day. Mr. Dupuis continued to work the remainder of the day and the rest of the week. On the following Sunday night, Mr. Dupuis telephoned Mr. Thomasee and told him that he thought he needed to see a doctor. On Monday, April 23, 2001, Mr. Picard sent Mr. Dupuis to the emergency room. An accident report was completed by Picard Steel Erectors, Inc., on April 26, 2001, listing the date of injury as April 16, 2001. From April 23, 2001, the claimant saw several doctors for treatment, but was unable to return to work. He received workers’ compensation benefits until June 12, 2002, when they were terminated.

PROCEDURAL FACTS

Mr. Dupuis became an employee of Pi-card Steel Erectors in August of 2000, and allegedly suffered a work-related back injury April 16, 2001. He received workers’ compensation until June 12, 2002.

On January 10, 2003, the Louisiana Worker’s Compensation Second Injury Board denied Louisiana Worker’s Compensation Corporation’s (Picard Steel |sErectors, Inc.’s worker’s compensation insurer) claim for reimbursement from the second injury fund. On February 7, 2003, they appealed the board’s decision.

On August 5, 2003, the claimant filed a 1008 requesting back indemnity compensation, weekly indemnity benefits, medical benefits, penalties, attorney fees and costs. The Workers’ Compensation Judge denied the claimant’s request based on La.R.S. 23:1208.1. Edwin Dupuis timely filed a de-volutive appeal on October 23, 2003.

ASSIGNMENTS OF ERROR

1) The Workers’ Compensation Judge erred in finding a violation of LSA-R.S. 23:1208.1 forfeiting benefits and failing to award workers’ compensation benefits to the claimant in the form of weekly indemnity benefits and medical benefits.
2) The Workers’ Compensation Judge erred in failing to award penalties and attorneys fees to the claimant based on the defendant’s handling of the claim.

LAW AND ANALYSIS

Findings of the trial court are reviewable on appeal, and the appellate standard of review has been clearly established. A trial judge’s findings of fact will not be disturbed unless they are manifestly erroneous or clearly wrong. Stobart v. State, through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). “Absent ‘manifest error’ or unless it is ‘clearly wrong,’ the jury or trial court’s findings of fact may not be disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La.1990). “If the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. at 1112.

I ¿ASSIGNMENTS OF ERROR NUMBER ONE

The claimant’s first assignment of error concerns the application of La.R.S. 23:1208.1, which provides:

Nothing in this title shall prohibit an employer from inquiring about previous injuries, disabilities, or other medical conditions and the employee shall answer truthfully; failure to answer truthfully shall result in the employee’s forfeiture of benefits under this Chapter, provided said failure to answer directly relates to the medical condition for which a claim for benefits is made or affects the employer’s ability to receive reimbursement from the second injury fund. This Section shall not be enforceable unless the written form on which the inquiries about previous medical conditions are made contains a notice advising the employee that his failure to answer truthfully may result in his forfeiture of worker’s compensation benefits under R.S. 23:1208.1. Such notice shall be prominently displayed in bold faced block lettering of no less than ten point type.

The Louisiana Supreme Court discussed La.R.S. 23:1208.1 in detail in Nabors Drilling USA v. Davis, 03-0136 (La.10/21/03), 857 So.2d 407. Davis had suffered an injury to his right shoulder and right knee in 1994 and surgery was performed in September 1994. In 2000, Davis began working for Nabors and completed a medical questionnaire. He responded negative to specific questions about surgery and injury incurred at work. On November 14, 2000, he suffered a back and leg injury. The employer argued that Davis’ failure to truthfully answer the question resulted in a loss of benefits.

The court stated, “La.R.S. 23:1208.1 provides for forfeiture under three circumstances. There must be (1) an untruthful statement; (2) prejudice to the employer; and (3) compliance with the notice requirements of the statute.” Id. at 414. The court did not focus on the claimant’s untrue statement but on whether it prejudiced the employer. “Thus, it is not every untruthful statement on a medical 1 ¡¡history questionnaire that will result in the forfeiture of workers’ compensation benefits for a subsequent work-related injury. It is only those statements that rise to the level of meeting the statutory proviso of La.R.S. 23:1208.1 that will subject the employee to forfeiture.” Id. at 414-15.

For there to be prejudice to the employer, “the untruthful statement must ‘directly relate “[ ]” to the medical condition for which a claim for benefits is made’, or it must affect the employer’s ability to receive reimbursement from the second injury fund.” Id. at 415. The question before the court today is whether the employer has been prejudiced. It is uncontested that on hiring, the defendant did not know of the plaintiffs previous injury. Also uncontested is that in January 2001, prior to the alleged subsequent injury, the employer was put on notice by the delivery driver’s discussion of Mr. Dupuis’ previous injury.

The Workers’ Compensation Judge stated in her ruling, “I think that the form has the requisite notice, has several notices on several different pages. I think the condition directly relates to the injury today, and I think also there’s clear evidence of prejudice with the second injury fund. I think it’s a 1208.1 case. That’s my ruling today.”

The fact that one can find a false statement violation in La.R.S. 23:1208.1 does not automatically prohibit workers’ compensation benefits. The Workers’ Compensation Judge incorrectly found that the employer had been prejudiced when the employer knew of the previous injury and failed to take corrective measures. The Workers’ Compensation Judge did not discuss the fact that the delivery driver told Mr. Thomasee about the claimant’s injury, nor the fact that the owner, Jeff Picard, 1 ¡¡discussed the injury with the claimant and retained the claimant as an employee. Also, the Workers’ Compensation Judge did not discuss the fact that the defendant made an affirmative assertion in its application to the second injury fund that they had notice of the previous injury.

The second prong of the Nabors’ test is that the purpose of this provision is to allow the employer to put the second injury fund on notice of the prior injury so as to be able to access that fund if it later becomes necessary. Therefore, if the employee does not tell the employer of the previous injury, the employer is prejudiced and unable to access the second injury fund. In that case, loss of compensation serves not only to punish the employee but, more importantly, as a protection for the employer. However, once the employer has knowledge of the previous injury and has the opportunity to correct the misinformation, then any prejudice caused by the employee’s failure to disclose is negated, as the employer is made whole and given the opportunity to put the second injury fund on notice. Moreover, once the employer knows, he can reassess the working conditions and make any appropriate accommodations. It is thus fair to say that the newly acquired knowledge puts the employer in the same position that he would have been in if he had been given accurate information originally.

At this point, if the employer does not act on the newly acquired information, it is his own failure to act that prejudices him and not the employee’s misinformation. Therefore, the final prong addressing the employer’s ability to recover from the second injury fund is not met, as the employer had notice, ample time, and the ability to protect itself by giving the second injury fund notice. Accordingly, equity dictates [ 7that the employer should suffer from his act of omission and not the employee. To hold otherwise would put the employee in the position of being forever barred from workers’ compensation eligibility long after the employer has been apprised of the injury and the rationale for the forfeiture provision has been eradicated. Accordingly, we reverse the finding that the employer had been prejudiced under La.R.S. 23:1208.1.

The Workers’ Compensation Judge did not render a decision as to whether an accident had indeed occurred, and if it did, whether that accident cause the claimant’s injury. -“When such a prejudicial error of law skews the trial court’s finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential facts de novo.” Lasha v. Olin Corp., 625 So.2d 1002, 1006, (La.1993)

Therefore, we must decide whether Mr. Dupuis did in fact, suffer a work-related accident and injury. “ ‘Accident’ means an unexpected or unforseen 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 deterioration.” La.R.S. 23:1021(1).

On April 16, 2001, Mr. Dupuis was manually lifting a bar joist weighing 150-200 pounds when he felt a “jerk” in his back. Manually lifting the bar joist was an expected job duty when mechanical equipment was unavailable or unable to perform the job. If, indeed, Mr. Dupuis injured his back as described, this would be | ¡¡considered an accident.

Louisiana courts consistently have interpreted the work-related accident requirement liberally. Indeed, it is well-settled in Louisiana that an “accident” exists when “heavy lifting or other strenuous efforts, although usual and customary, cause or contribute to a physical breakdown or accelerate its occurrence because of a pre-existing condition.” Moreover, Louisiana courts view the question of whether there was an accident from the worker’s perspective.

Bruno v. Harbert Int'l Inc., 593 So.2d 357, 360 (La.1992) (citations omitted).

Although the court looks to see if an accident occurred from the worker’s perspective, the worker still bears the burden of proving there was an accident:

A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubts upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. ... Corroboration may also be provided by medical evidence.

Id. at 361.

Mr. Dupuis stated that he hurt his back when pulling on the rope to raise the bar joist. Not one of his co-workers contests this statement. No one disputes that Mr. Dupuis was engaged in raising the bar joist. One discrepancy is that Mr. Dupuis stated that Ronald Guidry had to help him with the beam, but Mr. Guidry said that he did not help him with the beam. However, the main discrepancy surrounds the timing of when he told his co-workers of his injury. It is important to point out that the co-workers’ statements were taken approximately two years after the injury. Mr. Dupuis says that he told them then or shortly thereafter, whereas they say it was days later before they were aware that he suffered an injury. Mr. Guidry said he was told the next day or the day after. Mr. Thomasee says he was told later that same day or the next day. “[M]erely because a worker completes a day’s work without reporting an |9accident does not preclude the worker from receiving compensation.” Id. at 362.

The co-workers all state that Mr. Dupuis was a good worker and that he was not a complainer, therefore, it is reasonable that he may not have informed them that very day. It is also plausible that the passage of two years could have compromised their memories. Even if he did not immediately report this to a supervisor, it is clearly understandable, considering that he testified that he assumed he had pulled a muscle. Accordingly, we hold that prong one of the Bruno test is met, as Mr. Dupuis’ version of the incident is not discredited. The credibility problems the defendant presents revolve around outside issues of the plaintiffs life, and not this specific injury.

The second requirement of the Bruno test is corroboration. Corroboration may be in the form of medical evidence. Mr. Dupuis did not see a doctor for about a week after his injury, but this is not unusual when a person believes he has suffered a pulled muscle and hopes to recover without medical intervention. Medical evidence from this injury corroborates Mr. Dupuis’ testimony that he suffered an injury. The previous injury suffered twenty years earlier was diagnosed as a compression fracture of L2-L4 with L2 having a fifteen percent compression and L4 having an anterior superior chip fracture. Each time Mr. Dupuis sought medical aid for his present injury, he informed all of the doctors of his prior injury. An MRI performed on June 1, 2001, showed a disc protrusion at L3^i with associated oste-phyte formation. On July 11, 2001, a post myleogram CT found a tiny left posterola-teral protrusion at L4-5 and a broad base cervical protrusion at L5-S1. A functional capacity evaluation conducted April 23-24, 2002 revealed a functional level of sedentary. The medical linevidence presented clearly corroborates the claimant’s testimony that he suffered an injury and that this injury is not the same as the previous injury.

The accident report completed by Mr. Thomasee indicated the date of injury as April 16, 2001, and that Mr. Dupuis was injured while pulling on a rope. That report also suggested that future actions be undertaken only by two men on each side. Also, the defendant sought compensation from the second injury fund but was denied, and in their appeal, they stated that the claimant was injured on April 16, 2001 and that the defendant knew of the claimant’s prior injury. Based on the foregoing discussion, we find that the claimant did suffer a work-related accident that did cause his present injury. “If an employee not otherwise eliminated from the benefits of this Chapter receives personal injury by accident out of an in the course of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated.” La.R.S. 28:1031(A). We therefore reverse the Workers’ Compensation Judge and order that workers’ compensation and medical benefits be reinstated, as well as back indemnity compensation from date of termination.

ASSIGNMENT OF ERROR NUMBER TWO

The plaintiff requested penalties and attorney fees, however, we find that they are not appropriate in this case. We affirm the Workers’ Compensation Judge’s failure to grant penalties and attorney fees. In order for the plaintiff to recover penalties and attorney fees, there must be a showing that the defendant did not raise a seriously disputed issue. To reasonably controvert claim, for purposes of determining whether worker’s compensation claimant is entitled to penalties and In attorney fees based on employer’s failure to pay benefits, employer must have some valid reason or evidence upon which to base his denial of benefits. Johnson v. Johnson Controls, Inc., 38,495, pp. 16-17 (La.App. 2 Cir. 5/12/04), 873 So.2d 923, 933-34. The defendant had a legitimate defense because the plaintiff failed to disclose his prior injury and this area has been the subject matter of much debate. Provision of worker’s compensation statute authorizing award of attorney fees to claimant is penal in nature and, thus, must be strictly construed and employer should not be penalized for taking close factual or legal question to court for resolution. Lindon v. Terminix Servs., Inc., 617 So.2d 1251, 1253 (La.App. 3 Cir.), writ denied, 624 So.2d 1226 (La.1993).

CONCLUSION

We therefore reverse the Workers’ Compensation Judge’s decision to deny compensation and order that compensation be immediately reinstated. Costs of this appeal are assessed to Picard Steel Erectors, Inc.

REVERSED.


author: LEZELL, Judge.

text:
    Jessica Renee Doucet BOULEY, et al. v. Dennis GUIDRY, et al.
    No. CA 04-469.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 2004.

      Randall Kurt Theunissen, Allen & Gooch, Lafayette, LA, for Defendant /Ap-pellee, State of Louisiana, thru the Department of Transportation and Development.
    Kaliste Joseph Saloom, III, Saloom & Saloom, Lafayette, LA, for Plaintiff/Appellant, Jessica Renee Doucet Bouley, Individually.
    Kraig Thomas Strenge, Attorney at Law, Lafayette, LA, for Defendants/Ap-pellees, Illinois National Insurance Company Dennis Guidry.
    Court composed of JIMMIE C. PETERS, GLENN B. GREMILLION, and BILLY HOWARD EZELL, Judges.
   LEZELL, Judge.

Jessica Bouley, a passenger in a vehicle involved in a single-car accident, appeals a trial court judgment which found her comparatively at fault for the quadriplegia she suffered as a result of the accident. In addition to disagreeing with the trial court’s allocation of fault to her, Bouley also claims that the trial court erred in finding that the Louisiana Department of Transportation and Development (DOTD) was not at fault for a defective ditch slope on U.S. Highway 90 in Jefferson Davis Parish.

FACTS

On October 20, 1996, Bouley traveled with an acquaintance, Dennis Guidry, on an outing that would change her life forever. The trip began at approximately 2:30 in the afternoon when Guidry picked up Bouley to go riding with him in his car, a 1977 Buick LeSabre. They drove around Lake Arthur, Louisiana, for a while and purchased some beer. Bouley had some Xanax, and she and Guidry took at least one. They then proceeded to Jennings toward Lake Charles where they purchased more beer. At this time, the pah’ decided to go to Beaumont, Texas, where they went to the apartment of a male friend. Guidry testified that they went to a couple of bars in Beaumont before leaving the friend’s apartment around midnight, but Bouley claims they left for home after staying a couple of hours at the friend’s apartment and never went to any bars. At some point, Bouley got in the back seat of the vehicle and laid down with her head on the passenger side. There is also a dispute between their versions as to when the decision was made, but it was decided that they would go to a friend’s house in Welsh, Louisiana. This is how the vehicle came to be traveling eastbound on Highway 90 in the early morning hours on October 21;

| gGuidry testified that he was getting tired, fatigued, and aggravated. He could not recall if he was dozing when the accident occurred. Initially, the car left the roadway on the right-hand side of the highway. Guidry testified that he tried to pull back onto the highway but the car came back on the roadway quickly, jumped lanes, and exited the left side of the road. Guidry testified that he tried to pull the car back onto the highway but the car eventually hit the bottom of the ditch, making a 180-degree turn, causing injury to Bouley’s spine at level C5-C6.

Trooper Waylan James Busby investigated the accident on the night it happened. He was called at 2:32 in the morning when it was dark but the weather was clear. Trooper Busby observed the vehicle in the north ditch facing west on Highway 90. He measured twenty feet from the point of impact to the location where the vehicle came to rest. There were no skid marks visible. He did notice tire marks on the north side of the driveway. The marks proceeded over the driveway and then the vehicle struck the ditch. The only damage to the vehicle was on the front bumper.

In interviewing Guidry, Trooper Busby observed a strong smell of alcohol on Gui-dry’s breath. Guidry was also swaying, unsure of his balance, and fell while talking to Trooper Busby. After Guidry completed a field sobriety test, a Breathalyzer test was administered to Guidry twice at the Jefferson Davis Parish Sheriffs Office around 3:57 a.m. The first time the results were below .10, but the second time the results were .10. Guidry was then charged with DWI.

As a result of the accident, Bouley was rendered a quadriplegic with only minimal use in her right hand. Dr. Ralph Brown who treated Bouley after the accident explained that the force from the car spinning 180-degrees caused Bouley’s neck injury. Guidry was not injured in the accident but was issued a DWI after failing the second Breathalyzer.

|oBouley filed suit against Guidry and the DOTD. After hearing the testimony and reviewing the evidence, the trial court entered judgment allocating fifty percent of the fault for the accident each to Bouley and Guidry. Bouley was awarded $561,415.52 for past medical expenses and $2,808,329.00 for future medical expenses. She received $772.50 for loss of past earnings but no award was made for loss of future earnings. General damages were awarded in the amount of $1,500,000.00. Each of Bouley’s three children also received $100,000.00.

Bouley appealed the judgment, asserting that the trial court erred in several respects. These include allocating fault to Bouley for fading to wear a seat belt, failing to allocate fault to the DOTD, and failing to award Bouley damages for future lost wages.

BOULEY’S FAULT

In finding Bouley fifty percent at fault for the accident the trial court orally stated that she had to bear some responsibility for her injury for not wearing her seat belt, which it considered a major factor in her injury based on Dr. Brown’s testimony. Dr. Brown testified that Bou-ley was exposed to this type of neck injury because she was lying on the seat with no seat belt.

Louisiana Revised Statutes 32:295.1(E) clearly does not permit evidence of the failure to wear a seat belt as evidence of comparative negligence in causing injury. See Rougeau v. Hyundai Motor Am., 01-1182 (La.1/15/02), 805 So.2d 147. Therefore, the trial court erred in using this evidence to apportion any fault to Bouley. However, it appears the trial court did take other factors 'into consideration in assessing Bouley with fault, although not as heavily. Since there are issues concerning the failure to assess the DOTD with any fault, we will reserve our reassessment of fault until later in the opinion.

| ¿FAULT OF DOTD

Each side presented the testimony of an expert witness regarding the cause of the accident and resulting injury to Bouley. At issue was the slope of the ditch that Guidry encountered when his vehicle veered off the road to the left on the north side of Highway 90. Bouley claims that the trial court erred in relying on DOTD’s expert’s testimony and in finding that Cormier v. Comeaux, 98-2378 (La.7/7/99), 748 So.2d 1123 applied. Bou-ley argued that the fore slope of the ditch where the vehicle crashed was 2:1, which was unreasonably dangerous, and was the cause in fact of the vehicle’s failure to recover, causing her injuries.

Cormier involved a claim arising out of an accident on Highway 90, one mile east of Mermentau, Louisiana. The accident also occurred in the early morning hours when the driver of the vehicle drove his vehicle off the road, across the shoulder and an adjacent roadside ditch, and into the back embankment of the ditch. The car rolled over and came to rest in the ditch facing north. The driver and a passenger were rendered quadriplegics as a result of the accident. The supreme court stated that the prime issue was whether the road was defective because the back slope created an unreasonable risk of harm. We do not find that the trial court’s reliance on Cormier is misplaced. Both cases involved the same highway and very similar conditions. The trial court did not rely on Cormier in coming to the conclusion that Highway 90 in the particular spot where the Guidry vehicle impacted with the ditch was not unreasonably dangerous. Its oral reasons for judgment clearly indicate that the trial court based its judgment on the evidence as presented to it in this case. Cormier was merely used as guidance by the trial court. Therefore, we will review the trial court’s determination that the slope of the ditch was not an unreasonably dangerous condition.

| b“As to the area off the shoulder of the road, but within the right of way, DOTD owes a duty to maintain the land in such a condition that it does not present an unreasonable risk of harm to motorists using the adjacent roadway or to others, such as pedestrians, who are using the area in a reasonably prudent manner.” Id. at 1127. “Whether the condition of a road is unreasonably dangerous is a question of fact and should only be reversed if it is manifestly erroneous or clearly wrong.” Petre v. State, Dep’t of Transp. & Dev., 01-876, p. 7 (La.4/3/02), 817 So.2d 1107, 1111. “When applying a manifest error or clearly wrong standard, even if an appellate court may feel that its own evaluations and inferences are as reasonable as those of the district court, it should not disturb the findings of the district court.” Id.

Dean Tekell testified on behalf of Bouley as an expert in the field of traffic engineering, highway design engineering, and accident reconstruction. Tekell had worked for the City of Lafayette as chief traffic engineer during which time he often investigated accidents. Tekell began working on his own in 1998, having previously testified in court about six times. Tekell explained that he used a slope meter to measure the slope of the ditch. Tekell testified that he measured fifty feet on each side of the driveway and tried to pick out what appeared to be an average slope across the sections. He did not pick out the steepest or shallowest slope. His most significant finding in the area of the accident was that the fore slope of the ditch was 2:1, meaning that for every two feet of horizontal distance, the bank rises up one foot. The back slope was 4:1. Tekell testified that the slighter the slope, the less likely the vehicle is to flip or make some other type of erratic maneuver. The 1952 construction plans for widening this area of Highway 90 indicated that the slope should be 3:1. Tekell opined that the driver’s side of the vehicle plowed into the bottom of the ditch and once it plowed up enough earth to build up resistance, the back end of the vehicle | ¿whipped around. Tekell testified that this reaction of the vehicle was caused by the 2:1 slope and the vehicle would have reacted much differently on a 3:1 slope.

Don Ivey testified on behalf of the DOTD as an expert in highway safety engineering with an accident reconstruction facet. At the time of trial, Ivey had testified in courts in several states for thirty years and had authored over 100 refereed articles during his career. He determined the slope of the ditch by plotting the elevation contours of the site. His measurements indicated that the average fore slope was 3:1. Ivey agreed that the slope was 2:1 in a spot but stated that it was not in the general cross section. He explained that it was near the ditch where the slope has to change to accommodate the slope at the end of the culvert by the driveway.

Tekell agreed that at the time Highway 90 was widened, a 3:1 slope would have been an acceptable slope. Neither expert noticed any defect in the highway which would have caused the vehicle to leave the road.

The trial court was faced with two different measurements of the fore slope of the ditch taken by two different methods. We cannot say its reliance on Ivey’s measurements was in error. As explained by the trial court, it believed the methodology used by Ivey was more likely to give an accurate average slope for the ditches in this area of Highway 90. Since we find no error in the trial court’s acceptance that a 3:1 fore slope existed, there is no evidence that an unreasonably dangerous condition existed. Therefore, we find no error in the trial court’s failure to assess the DOTD with any fault. We must therefore apportion fault between Bouley and Gui-dry.

As we previously stated, the trial court found Bouley at fault principally because she did not wear her seat belt, which assessment of the law does not permit. However, the trial court also explained that it was assessing Bouley with some of the |7fault because she provided alcohol and drugs to Guidry, which it found to be a factor in causing the accident.

A guest passenger in an automobile has no duty to supervise the driver. However, if alcohol-induced impairment of the driver is a substantial cause of the driver’s negligence and if the guest passenger knows or should have known of the driver’s impaired condition and, nevertheless, voluntarily rides with him, the guest passenger may be found comparatively negligent or at fault.

Carbon v. Allstate Ins. Co., 96-2109, p. 14 (La.App. 1 Cir. 9/23/97), 701 So.2d 462, 471, rev’d on other grounds, 97-3085 (La.10/20/98), 719 So.2d 437.

“After the court of appeal finds a ‘clearly wrong’ apportionment of fault, it should adjust the award, but only to the extent of lowering or raising it to the highest or lowest point respectively which is reasonably within the trial court’s discretion.” Clement v. Frey, 95-1119, 95-1163, pp. 7-8 (La.1/16/96), 666 So.2d 607, 611. The supreme court has provided some factors to guide us in determining what is the highest percentage of fault we can assess to Bouley in lowering the amount awarded by the trial court.

In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.

Watson v. State Farm, Fire & Cas. Ins. Co., 469 So.2d 967, 974 (La.1985).

The trial court found that Guidry was an impaired driver who fell asleep and left the highway. In reading the trial court’s oral reasons for judgment, it is clear that any fault it placed on Bouley for providing alcohol and drugs to Guidry and riding with him in this condition was minimal. The testimony reveals that Guidry was not 1 ¡¡coerced by Bouley into taking these substances but did so freely. At the actual time of the accident, Bouley was asleep, so she had no way of knowing if Guidry was dozing off as he was driving or having problems driving. We agree with the trial court that any negligence on the part of Bouley for riding with a driver under the influence was minimal, and the highest amount of fault that could be placed on her is five percent. Therefore, we allocate the other ninety-five percent of fault to Gui-dry.

LOSS OF FUTURE EARNINGS

Pursuant to a motion for voluntary dismissal of Bouley’s claims for lost future wages, the trial court ruled that Bouley had failed to prove by a preponderance of the evidence she was entitled to any award for future loss of wages. Although Bouley admits her past work history was sporadic, she points to the fact that she was working at the time of the accident, had held other jobs off and on, and would have probably worked in the future also.

Future loss of earnings is inherently speculative and must be proven with a reasonable degree of certainty; purely conjectural or uncertain future lost earnings will not be allowed. An award for loss of future earning capacity is not based merely upon the difference between the injured person’s pre-accident wages and post-accident wages but rather it should be based on the difference between the injured person’s earning capacity before and after the accident.
In determining the proper amount to be awarded, the trier of fact should consider the injured person’s age, life expectancy, work life expectancy, investment income factor, productivity increase, prospects for rehabilitation, probable future earning capacity, loss of future earning capacity, loss of earning ability, and inflation. Our review of this award is governed by the manifest error standard. “The appellate question is not whether a different award may have been more appropriate, but whether the trial court’s award can be reasonably supported by the record.”

Myers v. Broussard, 96-1634, pp. 18-19 (La.App. 3 Cir. 5/21/97), 696 So.2d 88, 98 (citations omitted).

19Wendell Aguillard testified at trial about Bouley’s employment with him at the time of the accident. He testified that he hired Bouley about two months before her accident for farmstead upkeep. She would mow the roads around the farm, buildings, shop, dryer, and house, which encompassed twenty-three acres. He paid her minimum wage, and Bouley would work six hours a day, five days a week. Bouley would also drive Mrs. Aguillard wherever she needed to go. Aguillard found Bouley to be a very reliable and trustworthy employee. Aguillard did testify that the job was temporary and that once the grass did not need cutting, he would no longer need Bouley’s services.

Bouley testified that prior to her job with Aguillard, she had not had steady employment but had worked as a waitress at a couple of restaurants in addition to working at the Kaplan Sewing Factory before she worked for Aguillard. However, there was no documentary evidence to support this.

At the time of the accident, Bouley was a healthy, thirty-three year old. She dropped out of high school just short of her graduation. Given her lack of education, Bouley’s prospects of finding any employment as a quadriplegic are practically hopeless. No one questions the fact that she will never be able to work. However, we find it unreasonable to think that Bouley would never have worked some time during her remaining work-life. Bou-ley did demonstrate that she worked, even if it was -sporadic. Bouley does not try to argue that she would ever earn anything other than minimum wage. We find it was error for the trial court to fail to award Bouley some amount for loss of future earnings.

The reports of two economists were introduced into the record. Dr. Bernard Pettingill projected Bouley to have a work-life expectancy beyond trial of 26.8 years and based his calculation of loss of future wages on earnings of $150.00 a week, or |10$7,800.00 a year. He found the present value of her loss of future wages to be $169,074.00.

Dr. Kenneth Boudreaux calculated Bou-ley’s work-life expectancy at 15.01 years as of the date of trial. He also used a calculation of $7,800.00 a year as Bouley’s annual income. He calculated the present value of her loss of income at a low rate of $87,508.02 and a high rate of $99,518.84.

We find that an award of $87,503.02 for future loss of wages is supported by the evidence. We will amend the judgment accordingly.

For the foregoing reasons, the judgment of the trial court is amended to find that Jessica Bouley is five percent at fault for the accident and Dennis Guidry is ninety-five percent at fault for the accident. The judgment is also amended to award $87,503.02 for future loss of wages to Bou-ley. In all other respects the judgment is affirmed. Costs of this appeal are assessed to Dennis Guidry.

AFFIRMED AS AMENDED.