author: I «SUSAN M. CHEHARDY, Judge.

text:
    Peter M. DELAUNE and Jennifer Thompson v. Patricia HARRELSON, Bruce J. Melancon, U.S. Agencies Insurance Company and ABC Insurance Company.
    No. 02-CA-1271.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 29, 2003.
    Rehearing Denied May 19, 2003.

      Mary Grace Knapp, David P. Houpy, Knapp, Brannan & Moorman, Mandeville, LA, for Plaintiffs-Appellees, Peter M. De-laune and Jennifer Thompson.
    Thomas E. Gibbs, Thomas E. Gibbs & Associates, Baton Rouge, LA, for Defendant-Appellant, U.S. Agencies Casualty Insurance Company.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA and SUSAN M. CHEHARDY.
   I «SUSAN M. CHEHARDY, Judge.

In this personal injury lawsuit, the insurance company appeals the trial court judgment in favor of the plaintiffs. For the following reasons, we affirm the trial court’s ruling.

Facts

On the evening of March 3, 2000, Peter Delaune and his girlfriend, Jennifer Thompson, took two of her children to a Mardi Gras parade in Metairie, Louisiana. In order to avoid the post-parade traffic, the group left a few minutes before the end of the parade. Jennifer was driving Peter’s 1987 Honda Accord, with Peter in the front passenger seat and the children in the backseat. While they were stopped on Elmeer Street waiting to turn onto West Esplanade Avenue, their vehicle was rear-ended by a late-model dark-colored Chevrolet Camaro registered to Patricia Harrelson. Both Patricia Harrelson and Bruce Melancon were occupants of the Camaro that night.

Fortunately, neither of Jennifer Thompson’s children, who were passengers in the car that night, were injured in the accident. Jennifer, however, was taken that night by ambulance to the emergency room at East Jefferson General Hospital, where she was diagnosed with lower back pain. Jennifer continued treatment for |aher back injury with orthopedist, Paul ^Doty, M.D., until she was discharged on September 9, 2001. At trial, Jennifer produced documentation of medical expenses for treatment of injuries received in this accident totaling $3,242.97.

Although Peter did not seek medical treatment that night, he began experiencing pain in his neck soon after the accident, which caused him to miss several days of work. He sought treatment for his neck pain from orthopedist, Paul Doty, M.D., on March 16, 2002. Peter continued treatment with Dr. Doty until June 19, 2000, when he was discharged at maximum medical improvement for his neck.

Further, about one week after the accident, Peter began to experience migraine headaches, which gradually increased in severity and frequency. He was evaluated by Albert St. Pierre, Jr., D.D.S. for temporal mandibular joint dysfunction, which Dr. St. Pierre found was exacerbated by the automobile accident.

Finally, on July 27, 2000, Peter sought treatment from neurologist, Jeannette Lopez, M.D., for his migraine headaches, which he was experiencing five days a week. With medication and therapy, his headaches decreased in frequency and intensity. After February 22, 2001, he discontinued treatment because he did not carry health insurance and he was unable to afford the cost of treatment on his own. At trial, Peter produced documentation of medical expenses for treatment of injuries received in this accident totaling $3,196.13.

On April 13, 2000, Peter and Jennifer filed suit for damages against Patricia Harrelson, and her insurer, U.S. Agencies, Bruce Melancon and his insurer, an unknown insurance company, and Peter’s uninsured/underinsured motorist insurance carrier, GEICO Insurance Company. On April 4, 2001, GEICO was dismissed from the suit. On July 20, 2001, Patricia Har-relson and Bruce Melancon were dismissed.

|4On September 18, 2001, the matter proceeded to trial against U.S. Agencies, Harrelson’s insurer. After hearing the testimony and evidence presented, the trial judge found for Peter Delaune and Jennifer Thompson and awarded each of them $10,000 in damages. On September 25, 2001, the trial judge signed a judgment to that effect. U.S. Agencies filed a timely suspensive appeal.

On appeal, U.S. Agencies contends that the trial court committed manifest error in its judgment “since no evidence was adduced at trial proving the identity of the person operating the vehicle which rear ended[sic] Plaintiffs and caused them damages.” Specifically, U.S. Agencies claims that Patricia Harrelson was never identified as the person insured by U.S. Agencies nor was she identified as the driver of the vehicle. Further, the “late model Cá-maro” was not identified as a vehicle insured by U.S. Agencies.

In Stobart v. State of Louisiana, through Department of Transportation and Development, 617 So.2d 880 (La.1993), the Louisiana Supreme Court set out the appellate standard of review in examining the findings of a district court, as follows:

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989). This court has announced a two-part test for the reversal of a factfinder’s determinations:
1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).

See Mart v. Hill, 505 So.2d 1120, 1127 (La.1987).

This test dictates that a reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court’s finding. Id. The reviewing court must review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous.

| Nevertheless, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. See generally, Cosse v. Allen-Bradley Co., 601 So.2d 1349, 1351 (La.1992); Housley v. Cerise, 579 So.2d 973 (La.1991); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, [supra]; Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). However, where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness’s story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Rosell, 549 So.2d at 844-45. Nonetheless, this Court has emphasized that “the reviewing court must always keep in mind that ‘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 if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.’ ” Housley v. Cerise, [supra] (quoting Sistler v. Liberty Mutual Ins. Co., [supra at 1112])).

This court has recognized that “the reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.” Canter v. Koehring Co., 283 So.2d 716 (La.1973). Thus, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

Stobart, 617 So.2d at 882-883.

At trial, Peter Delaune, who was riding in the passenger seat, testified that, immediately after the accident, he turned around and saw that his car had been rear-ended by a dark-colored, late model Chevrolet Camaro. When he turned around, the interior dome fight in the Camaro was illuminated and Peter saw a woman in the driver’s seat and a man in the passenger’s seat. According to Peter, the two were “beating the hell out of each other ... with their fists, teeth, kicking, gouging, biting.” Then, the driver, a woman with long, blonde hair, exited the driver’s side of the vehicle and the passenger, a man with “close cropped” brown lfihair, exited the passenger’s side of the vehicle. The two “proceeded to fight in the street and in the front yard.” The man and woman were also exchanging profanities.

During their argument, the woman, later identified as Patricia Harrelson, stated that the Camaro was her vehicle. She also indicated that the passenger, later identified as Bruce Melancon, should find another ride home.

When Harrelson and Melancon heard Jennifer Thompson crying in the other vehicle, they approached it. Patricia indicated to Jennifer and Peter that she and Bruce had been fighting in the car and she accidentally stepped on the gas, instead of the brake, causing her vehicle to rear-end their vehicle. Immediately after Patricia Harrelson spoke to Jennifer and Peter, another car pulled up beside Peter’s car, the occupants offered Patricia a ride, and she left the accident scene.

At trial, Jennifer Thompson testified that, immediately after the initial impact, she looked in the rearview mirror and saw a woman in the driver’s seat and a man in the passenger’s seat. Because the dome light inside of their car was illuminated, Jennifer could see that the man reached over and removed keys from the car’s ignition and “that’s when they started fist fighting over the keys.” She also remembered the woman apologizing for the accident and saying that she had accidentally pushed the gas instead of the brake because they were fighting. She also recalled the woman leaving the scene in another car. Finally, she stated that she later learned the names of the woman and the man from the police officer who investigated the accident.

Finally, Jennifer Thompson’s ten-year-old son, Sean Burnes, who was riding in the backseat of Delaune’s vehicle that night, testified that he looked out the back window right after he felt a hard bump and saw a “girl and a boy fighting in a car.” He remembered that the “girl” was in the driver’s seat and the “boy” was in the passenger’s seat. He also saw the “boy” get out of the passenger side of the car 17and the “girl” get out of the driver’s side of their car. Thus, three witnesses testified that Patricia Harrelson was driving the vehicle that rear-ended them.

The testimony of Peter Delaune, Jennifer Thompson, and Sean Burnes constitutes a “reasonable factual basis for the finding of the trial court” that Patricia Harrelson was the operator of her vehicle that night. Further, there was no dispute regarding her ownership of the Camaro. Finally, the record contains a copy of an application for insurance, declarations page and exclusions introduced at trial that reveals that Patricia Harrelson and her 1989 Chevrolet Camaro were insured by U.S. Agencies on the date of the accident. Thus, we find U.S. Agencies argument is without merit.

In the present case, we conclude, after our review of the record, that the trial judge was presented with two permissible views concerning whether Patricia Harrel-son was the driver of her vehicle when it rear-ended Peter Delaune’s vehicle as well as whether she and her vehicle were insured by U.S. Agencies. The trial court chose the permissible view that Patricia Harrelson was the driver of her vehicle and that she and her vehicle were insured by U.S. Agencies. Thus, the trial court’s findings were not manifestly erroneous. For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to U.S. Agencies.

AFFIRMED.


source: Caselaw Access Project

author: | THIBODEAUX, Judge.

license: Public Domain

text:
    Edward RAYMOND v. TNT SANDBLASTING & PAINTING, INC.
    No. 03-86.
    Court of Appeal of Louisiana, Third Circuit.
    April 30, 2003.

      Lorraine A. Dupont, Divincenti, Fonte-not, Roberts & Doran, Baton Rouge, LA, for Defendants/Appellees, TNT Sandblasting & Painting, Inc. and Zurich American Insurance Company.
    Julian Louis Gibbens III, Jeffery F. Speer, Doucet-Speer, P.L.C., Lafayette, LA, for Plaintiff/Appellant, Edward Raymond.
    Court composed of ULYSSES GENE THIBODEAUX, OSWALD A. DECUIR, and GLENN B. GREMILLION, Judges.
   | THIBODEAUX, Judge.

In this workers’ compensation case, claimant, Edward Raymond, appeals the judgment of the Office of Workers’ Compensation (OWC) in favor of TNT Sandblasting & Painting, Inc. (TNT), finding that he did not sustain an accident while in the course and scope of his employment. We affirm.

I.

ISSUE

The issue in this case is whether the OWC erred in failing to find the occurrence of an accident.

II.

FACTS

The parties stipulated that Mr. Raymond was employed as a shop hand with TNT in September, October and December of 2001. The parties also stipulated that his average weekly wage rate was $480.00. Mr. Raymond was employed as a painter for TNT. The facts surrounding the occurrence of a work-related accident are in dispute. Mr. Raymond asserts that he sustained an injury resulting from an accident while in the course and scope of his employment. TNT claims that he did not.

Mr. Raymond testified that although he could not remember the exact date, he was first injured sometime after September 11, 2001. Mr. Raymond testified about the occurrence of the first accident as follows:

Well, I could say this, I mean, I was in the shop painting — getting ready to start painting on some pipes and stuff, and I walked out to get some water, that’s when I seen Tommy Vincent pulling in the [blast] hose. So I asked him where he was going with it. So he told me to the 12tanks. So I latched on to the [blast] hose with him and we pulled. I took about ten steps, you know, the [blast] hose got stuck. So I kind of pulled on it, and when I pulled on it, it threw me back.

Mr. Raymond further testified that he took two steps and then felt pain in his lower back. He stated that it felt as though someone had stabbed him with a knife in his back. He also stated that he could not move for about three minutes after feeling the pain so he just stood there. Mr. Raymond testified that the blast hose did not feel heavy when he lifted it.

Mr. Raymond further testified that his foreman was present when he helped pull the hose and saw that he was walking peculiarly. His foreman inquired about his condition and Mr. Raymond testified that he told him about hurting his back. Mr. Raymond took a fifteen minute break. He did not go to a doctor that day for treatment because he thought it was not a serious problem. The pain in his back subsided by the next day. However, subsequent to the accident, every time he picked up anything that was heavy, his back would hurt. When the pain became too severe, Mr. Raymond went to the emergency room at Dauterive Hospital. The emergency room doctor told him that he would have to be seen by an orthopedic doctor. With respect to the emergency room bill, Mr. Raymond told the hospital that TNT would pay. After his hospital visit, Mr. Raymond informed TNT that he had gone to the hospital emergency room. He also informed his employer that he told his foreman, Edmond Fontenot, about injuring himself.

Mr. Raymond testified that TNT decided to send him to see Dr. James Trahan. His first visit with the doctor was on October 3, 2001. After an examination, Dr. Trahan prescribed various medications to treat his pain. Dr. Trahan told Mr. Raymond he could return to work, but Mr. Raymond testified that he was still in a lot of pain. He saw Dr. Trahan a total of two times, but decided he wanted a second 1 sopinion because Dr. Trahan insisted that he go back to work even though his pain had not subsided. Mr. Raymond also saw various doctors recommended by his employer, including Dr. Douglas Bernard, but testified that he was still in pain. Mr. Raymond also testified that he injured his back again in early December 2001 while again helping another employee to pull a sand blasting hose.

On cross examination, Mr. Raymond testified that he was not employed by TNT as a sandblaster, but that he injured himself on a sand blasting hose while assisting another employee who was pulling the hose. He admitted that his job duties with TNT did not include pulling sand blasting hoses and was outside of his job duties as a painter. Mr. Raymond testified that he just wanted to help someone who was carrying something heavy. He further testified that Tommy Vincent, a man called “Corey,” and a man named “Anthony” as well as his foreman “Edmond,” were present during the first incident when he injured his back. He testified that he told all of them that he felt a sharp pain in his back. Mr. Raymond testified that his foreman told him to go back to work painting. Mr. Raymond also testified that he did not remember whether he told anyone that his pain was serious.. Even though the pain continued after the first incident in late September or early October and before the second incident in December, Mr. Raymond did not tell Mr. Fontenot, his foreman, that his back continued to hurt. Mr. Raymond continued to work at TNT.

Mr. Raymond’s time sheets reveal that he took two weeks off from work about one month after the first accident. He explained that the two weeks he took off was not due to his injury but because of the death of his brother-in-law. He returned to work in November. Mr. Raymond testified that his second accident occurred at the.end of November and he went to Dau-terive Hospital on December 2, 2001. He stated that although his back never stopped hurting, the pain was not as bad as it had been. |4In the days prior to going to the hospital, Mr. Raymond pulled a sand blasting hose and climbed up and down a ladder of a big tank.

Although Mr. Raymond testified that he told the personnel at Dauterive Hospital that his injuries were work related, the hospital records do not reflect that information. Also, Angela Mayeaux testified that in early September 2001, prior to the hose pulling incident, Mr. Raymond called in stating that he was not going to be able to make it in to work because he hurt his back. She asked Mr. Raymond whether he injured his back at work and he replied that he did not. Ms. Mayeaux never got a call from Dauterive Hospital concerning Mr. Raymond’s visit there. She admitted that Mr. Raymond did not tell her the part of his back that was hurt. Mr. Raymond’s time sheet records indicate that he called in on September 5, 2001 and did not return to work until September 7, 2001. Ms. Mayeaux also noted his reason for wanting to take time off from work.

Mr. Fontenot, Mr. Raymond’s foreman, testified at the hearing. He was Mr. Raymond’s supervisor from July 2001 through approximately late October or early November 2001. Mr. Fontenot testified that Mr. Raymond never told him during working hours that he hurt his back. Mr. Fontenot left to work at another yard temporarily. He returned to Kingston yard, where Mr. Raymond worked, to pick something up and saw that Mr. Raymond was wearing a back brace. Mr. Fontenot asked Mr. Raymond what happened and he replied that he hurt his back pulling the hose. Mr. Fontenot asked whether he reported the incident and Mr. Raymond replied that he told Tommy Vincent, the foreman at Kingston yard at that time. Mr. Fontenot admitted that Mr. Raymond “was walking funny” when he saw him, but that he was not present when Mr. Raymond hurt his back.

|sMr. Raymond testified that he injured his back while helping Mr. Vincent pull a blast hose. Mr. Vincent testified that there was no occasion when Mr. Raymond helped him pull a blast hose. He further testified that he did not witness Mr. Raymond in obvious pain while working at TNT. Mr. Vincent also testified that when Mr. Raymond first went to work at TNT prior to September 11, 2001, Mr. Raymond told him that he had injured his back at another job and was unable to do any heavy lifting. This was also the reason given by Mr. Raymond to Mr. Vincent for not doing sandblasting work. Mr. Vincent testified that he was under the impression that Mr. Raymond was under the care of a doctor for his back problems, especially since Mr. Raymond told him he was involved in a lawsuit due to injuring his back. However, Mr. Raymond’s testimony was that he had not filed another lawsuit.

Corey Viator, one of Mr. Raymond’s coworkers, also testified. He stated that he started work with TNT about one week after Mr. Raymond started in July 2001. Mr. Viator was employed as a painter/blaster. He testified that one day while working, he asked Mr. Raymond why he did not sand blast and Mr. Raymond replied that he had a bad back. Furthermore, Mr. Raymond told him that it was his lower back area that was bad. Mr. Viator testified that sometimes Mr. Raymond wore a little back brace. Mr. Raymond never told Mr. Viator how he hurt his back. Mr. Robert Grow, a supervisor for TNT, also testified that Mr. Raymond told him he had a back problem and that it did not occur at work.

Mr. Glenn Russo, the owner of TNT, testified that he hired Mr. Raymond to work for TNT. He stated that Mr. Raymond told him that he could only paint and when he first came to work, he was wearing a back brace. Mr. Russo inquired about the condition of his back and Mr. Raymond told him that he had a bad back and that it happened at home. Mr. Russo was aware that at one point, Mr. Grow terminated |fiMr. Raymond’s employment because Mr. Raymond refused to sand blast. However, Mr. Russo also informed Mr. Grow that Mr. Raymond was not hired to blast because of his back problems. The first time Mr. Raymond said anything about hurting his back while working at TNT was in December. He told Mr. Russo he was having back trouble and wanted to see a doctor. Mr. Russo’s response was that he had a back problem from the time he was hired. It was then that Mr. Raymond told him that he hurt his back on the job. Therefore, Mr. Russo sent him to a doctor to get his back checked and offered him light-duty work consisting of sitting down and answering the phone.

Mr. Raymond returned to work for a day or two after seeing the doctor and being released to light-duty work, and then just stopped going to work. With respect to the back brace Mr. Raymond testified that the witnesses who testified about him wearing a back brace when he first started work at TNT were not being truthful and in fact that “they all plotted that.”

A hearing in this matter was held on August 5, 2002. After the presentation of evidence the OWC concluded that Mr. Raymond failed in his burden of proving an accident while in the course and scope of his employment with TNT. It is from this ruling that Mr. Raymond appeals.

III.

LAW AND DISCUSSION

Standard of Review

An appellate court may not set aside the factual findings of a workers’ compensation judge in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). “[Wjhere there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact |7should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.” Id. at 844. However, a reviewing court may reverse a fact finder’s determinations if such factual findings are not reasonably supported by the record and are clearly wrong. Stobart v. State Through DOTD, 617 So.2d 880 (La.1993).

Occurrence of Accident

“[T]he plaintiff-worker in a compensation action has the burden of establishing a work-related accident by a preponderance of the evidence.” Bruno v. Harbert Int’l Inc., 593 So.2d 357, 361 (La.1992); La.R.S. 23:1031(A). “A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident.” Id. Absent circumstances casting suspicion on the reliability of the worker’s testimony as to the occurrence of an accident and injury while in the course and scope of employment, the trial court should accept as true the witness’s uncontradicted testimony. Holiday v. Borden Chemical, 508 So.2d 1381, 1383 (La.1987).

Louisiana Revised Statutes 23:1021(1) defines an accident as:

[A]n 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.

As noted in the fact section of this opinion, Mr. Raymond testified that he injured his back while helping to pull a blast hose. He also testified that he refused to do sandblasting work because he would not be paid enough to do both blasting and painting. He later admitted that the real reason he could not do blasting work was Isbecause of a back injury he suffered at home. Although Mr. Raymond testified that several co-workers including his foreman witnessed him in pain after helping to pull a blast hose, those co-workers all testified that they did not see him in pain. In fact, the co-worker Mr. Raymond allegedly helped testified that Mr. Raymond never helped him pull a blast hose. Furthermore, on several occasions when asked about his use of a back brace, Mr. Raymond told his co-workers and his supervisor that he injured his back at home. The emergency room hospital records submitted to corroborate Mr. Raymond’s accident and back injury reveal blanks on the form where it asks “when” and “where” the accident happened.

Dr. Trahan received a history from Mr. Raymond that he injured his back two months prior to December 3, 2001, while pulling an air hose. Mr. Raymond also told Dr. Trahan that he took two weeks off from work due to his back injury. However, at the hearing, Mr. Raymond testified that he took those two weeks off to attend the funeral of his brother-in-law and to help his wife’s family after the funeral. He informed Dr. Trahan that he did not have any prior back injuries or problems. However, his co-worker witnesses all testified that he had been wearing a back brace from the time he started work at TNT in July 2001 and injured his back at home. Mr. Raymond gave a history of injuring his back in late September but not reporting the injury until “October or so” to Dr. Bernard. Dr. Bernard opined that Mr. Raymond suffered lower back pain but had a lot of “overreaction.” Mr. Raymond’s history of reporting his September injury to Dr. Bernard was contrary to his testimony at trial that he did not report the September injury but reported only the December injury.

We find the record replete with evidence to discredit Mr. Raymond’s testimony about when and where he injured his back. The workers’ compensation judge specifically stated in her oral reasons for judgment that “Mr. Raymond’s | testimony just wasn’t very credible.” We agree and find no manifest error on the part of the OWC.

IV.

CONCLUSION

The judgment of the Office of Workers’ Compensation is affirmed. Costs of this appeal are assessed to claimant-appellant, Edward Raymond.

AFFIRMED.


author: ItGREMILLION, Judge.

text:
    Keith CORMIER v. HOUSING AUTHORITY OF LAFAYETTE.
    No. 03-0055.
    Court of Appeal of Louisiana, Third Circuit.
    April 30, 2003.

      David Russell Bankston, Lafayette, LA, for Plaintiff/Appellee, Keith Cormier.
    Sammie Maurice Henry, Johnson, Stilt-ner, & Rahman, Baton Rouge, LA, for Defendants/Appellants, Housing Authority of Lafayette.
    Court composed of ULYSSES GENE THIBODEAUX, OSWALD A. DECUIR, and GLENN B. GREMILLION, Judges.
   ItGREMILLION, Judge.

The defendant, Housing Authority of Lafayette, appeals the judgment of the workers’ compensation judge denying its exception of prescription as it applied to the claims of the plaintiff, Keith Cormier, to receive supplemental earnings benefits. For the following reasons, we affirm.

FACTS

The facts of this matter are not in dispute. On October 23, 1998, Cormier suffered a work-related injury to his knees while employed as a maintenance worker for the Housing Authority. He received temporary total disability benefits (TTD) through November 29,1999. At that time, his weekly benefits were terminated because he returned to work. Cormier worked through December 6, 2001, at which time he was declared unable to work by his treating orthopedic surgeon.

On April 15, 2002, Cormier filed a disputed claim for compensation alleging the Housing Authority’s failure to reinstate TTD as of December 6, 2001. In response, the Housing Authority filed a peremptory exception of prescription arguing that Cormier’s claim for benefits had prescribed pursuant to La.R.S. 23:1209. While Cormier did not dispute that his claim for TTD had prescribed, he argued that his claims for supplemental earnings benefits (SEBs) and medical expenses were still viable. On November 1, 2002, at the hearing on the exception, Cormier supplemented his disputed claim for compensation to. include a claim for SEBs and medical expenses. Following a hearing on the exception, the workers’ compensation judge granted the exception as it applied to Cormier’s claim for TTD, but denied it as it applied to his claim for SEBs. This appeal by the Housing Authority followed.

| ¡.ISSUE

On appeal, the Housing Authority argues that the workers’ compensation judge erred in finding that Cormier’s claim for SEBs had not prescribed since the record reflects that he failed to seek such benefits for more than two years after the termination of his benefits.

The Housing Authority bases its argument on La.R.S 23:1221(3)(d)(i), which provides:

(d) The right to supplemental earnings benefits pursuant to this Paragraph shall in no event exceed a maximum of five hundred twenty weeks, but shall terminate:
(i) As of the end of any two-year period commencing after termination of temporary total disability, unless during such two-year period supplemental earnings benefits have been payable during at least thirteen consecutive weeks[.]

It further relies on a string of first circuit cases which hold that, in fact situations such as this, La.R.S. 23:1221(3)(d)(i) trumps La.R.S. 23:1209, so that a two-year prescriptive period applies rather than a three-year period. Dufrene v. Video Co-Op., 01-261 (La.App. 1 Cir. 3/28/02), 813 So.2d 619, writ granted, 02-1147 (La.9/30/02), 825 So.2d 1183; Sept v. City of Baker, 98-1190 (La.App. 1 Cir. 5/18/99), 733 So.2d 748; Smith v. State, Through DOHH, 94-1533 (La.3/3/95), 652 So.2d 635. A more recent case following this finding is Louisiana Workers’ Compensation Corp. v. Cook, 01-1897 (La.App. 1 Cir. 10/2/02), 836 So.2d 147.

La.R.S. 23:1209 provides in pertinent part:

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 [3and 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(8) 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 (h).

(Emphasis added) (footnote omitted).

In her oral reasons, the workers’ compensation judge noted that she had addressed this issue previously, ruling that La.R.S. 23:1209 applied so as to be in line with the liberal precepts of the Workers’ Compensation Act. She ruled consistently with her prior opinion in the instant matter.

After reviewing the record and the jurisprudence, we agree with the workers’ compensation judge that the three-year prescriptive period found in La.R.S. 23:1209 applies to the facts at hand. In Bibbins v. BOH Brothers Construction Co., 99-349, p. 8 (La.App. 5 Cir. 10/13/99), 746 So.2d 154, 159, the fifth circuit stated:

La.R.S. 23:1221(3)(d)(i), cited and relied on by Boh Brothers in support of its prescription exception as to the claim for SEBs, addresses itself to the termination of SEBs after the benefits have been awarded. It does not pertain to the case before us herein, wherein claimant is asserting for the first time his right to SEBs. A claimant’s right to bring a claim for SEBs for the first time is controlled by La.R.S. 23:1209(A) and is three years from the last compensation payment. Accordingly, insofar as the OWC judgment held that claimant’s right to assert a claim for SEBs has prescribed, it is reversed.

Additionally, H. Alston Johnson III, 14 Louisiana Civil Law Treatise, Workers’ Compensation Law and Practice, § 384, p. 325 n. 78 (4th ed.2002), stated:

See generally Smith v. State Through DOHH, 652 So.2d 635 (La.App. 1st Cir.1995), in which the claim was held to be prescribed as to all benefits other than SEB, and SEB was not available in the court’s view because fewer than 13 weeks of such payments had been paid during the preceding two-year period prior to suit. This is a doubtful conclusion in light of the intended three-year period to be able to seek such benefits; the two-year provision is a “termination” provision, not a prescriptive |4period.

Finally, the supreme court has just rendered an opinion in Dufrene, wherein it reversed the first circuit finding that La. R.S. 23:1221(3)(d)(i) applied under the factual scenario at issue. In its opinion, 02-1147, p. 10 (La.4/9/03), 843 So.2d 1066, 1073, the court held that La.R.S. 23:1209(A) “is the only prescriptive period setting forth the amount of time a worker has to file a claim for benefits. Section 1221(3)(d)(i), on the other hand, establishes the substantive period an employee is entitled to receive SEB payments, and when and how they may terminate.” In further addressing this issue, the court stated:

In interpreting these statutes, we must keep in mind the policies and purpose behind the workers’ compensation laws. It is axiomatic that the Workers’ Compensation Act is remedial in nature. To effectuate its humane policies, we are bound to construe the law liberally in favor of providing compensation to the injured worker. Breaux v. Hoffpauir, 95-2933, p. 4 (La.5/21/96), 674 So.2d 234, 237; Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52, 55 (La.1993); Lester v. Southern Cas. Ins. Co., 466 So.2d 25, 28 (La.1985). Furthermore, in keeping with the beneficent intent of the Act, “the time limits on institution of a claim for benefits have been very liberally interpreted over the years.” Malone & Johnson, supra, § 384, at 307; see also Jackson v. Domtar Indus., Inc., 98-1335, p. 4 (La.App. 3d Cir.4/7/99), 732 So.2d 733, 737. Our interpretation of these statutes conforms with these well-established tenets of workers’ compensation law because it provides an injured employee with the longest time period provided in the Act to file a claim for benefits.

We also note that the court of appeal’s interpretation of §§ 1209(A) and 1221 (3) (d) (i) leads to results that are at best inconsistent with the remedial nature of workers’ compensation law, and at worst absurd. Consider a worker who is injured on the job, but not so badly that he cannot work at all, and who begins to collect SEB, followed by a time period where he does not need SEB. Under § 1209(A) this worker will have three years from the termination of SEB payments to file a renewed claim for SEB if his condition worsens (§ 1209(A) gives a prescriptive period of three years from the last payment of any type of indemnity benefit). Section 1221(3)(d)(i) would not serve to shorten the time within which to file the worker’s claim in this hypothetical | ^situation because TTD was not paid, and that statute only provides for termination of SEB after TTD ends.

However, under the First Circuit’s analysis, a workers such as plaintiff, who is seriously injured and thus must collect TTD payments because she is incapable of working at all, will have only two years from the termination of TTD to file a claim for SEB unless the worker can prove that SEB was payable for thirteen consecutive weeks, i.e., that she was not able to earn 90 percent of her pre-injury wages for thirteen consecutive weeks of the given two-year period. We choose not to interpret these statutes in such a way as to cause inequitable results, when the logical reading of these statutes adopted by the Fifth Circuit Court of Appeal gives effect to the substance of both statutes and conforms to the long-established purpose and intent of the workers’ compensation laws.

Id. at pp. 13-15, 843 So.2d at 1074-75 (footnote omitted).

Accordingly, the judgment of the workers’ compensation judge denying the Housing Authority’s exception of prescription as it applied to Cormier’s claim for SEBs is affirmed.

CONCLUSION

For the foregoing reasons, the judgment of the workers’ compensation judge is affirmed. The costs of this appeal are assessed to the defendant-appellant, Housing Authority of Lafayette.

AFFIRMED.


author: JjTHIBODEAUX, Judge.

text:
    STATE of Louisiana v. David A. HIGGINBOTHAM.
    No. 03-49.
    Court of Appeal of Louisiana, Third Circuit.
    April 30, 2003.
    Hon. William E. Tilley, District Attorney — 30th Judicial District Court, Terry Wayne Lambright, Leesville, LA, for Plaintiff/Appellee — State of Louisiana.
    S.Christie Smith IV, The Smith Law Firm, Leesville, LA, for Defendant/Appellant — -David A. Higginbotham.
    Court composed of Ulysses GENE THIBODEAUX, OSWALD A. DECUIR, and GLENN B. GREMILLION, Judges.
   JjTHIBODEAUX, Judge.

David A. Higginbotham, Defendant, pled guilty to exploitation of the infirm, one count of simple burglary, and two counts of theft. He was sentenced as follows:

1) exploitation of the infirm — -six years at hard labor, a one thousand dollar fine, cost of court, and restitution in the amount of seven hundred dollars;
2) simple burglary — eight years at hard labor, a one thousand dollar fine, and cost of court; and
3) theft over five hundred dollars- — (on each count) eight years at hard labor, a seven hundred fifty dollar fine, and cost of court.

The sentences on the burglary and theft charges were ordered to run concurrent with each other and the sentence the Defendant was then serving. The sentence on exploitation of the infirm was ordered to run consecutive to the other sentences.

After the trial court denied the Defendant’s motion to reconsider sentence, he appealed and complains of the consecutive nature of his sentence. We vacate the sentence imposed for exploitation of the infirm and remand for resentencing after full consideration of the plea agreement. All other sentences are affirmed.

CONSECUTIVE SENTENCE

The Defendant contends the court committed reversible error when, contrary to the State’s recommendation to impose the Defendant’s sentences concurrently on multiple counts, it sentenced the Defendant to serve consecutive terms of imprisonment, and that recommendation was the motivating factor in obtaining the Defendant’s guilty plea.

ii>The plea agreement entered into by the Defendant was set out by defense counsel as follows:

BY MR. SMITH:
That’s correct. Pursuant to the agreement to be made part of the record shortly, count — Mr. Higginbotham would move to withdraw his formerly tendered plea of not guilty to count one on 62,427 and tender a plea of guilty, acknowledging restitution on count two, if there is restitution owed. And, he would move to withdraw his formerly tendered plea of not guilty to counts two, three, and four on 62,428. In exchange for those pleas, the state will nolle pros — will dismiss counts two on 4 — on 62,427, counts one and five on 62,428, recommended concurrent sentencing on those four felonies to which he pleas today with each other and with the time he is currently serving. (EXACTLY AS STATED THROUGHOUT).
BY THE COURT:
All right. Is that your plea, Mr. Higginbotham?
BY MR. HIGGINBOTHAM:
Yes, sir.

After the plea agreement was read by defense counsel, the Defendant indicated to the court that he understood and signed the guilty plea form and that he had no questions regarding the form.

The judge went on to discuss the Defendant’s understanding of the plea agreement as follows:

Q. All right. Now, the plea agreement as cited by Mr. Smith — did you hear him cite that?
A. Yes, sir.
Q. And, is that your understanding of the plea agreement?
A. Yes, sir.
Q. Is there anything that he didn’t mention that you think is part of the deal or believe is part of the deal?
13A. No, sir.

The trial judge did not discuss the actual terms of the recommendation with the Defendant nor did it advise the Defendant that it was not bound by the recommendation.

On November 13, 2002, the Defendant was sentenced. The judge recited the terms of the plea agreement as follows:

He entered a plea of guilty on these counts in these bills on September the 4th, 2002 and the plea agreement was that the state would dismiss count two in 62,427 and count one and five in 62,428 and there was also an agreement or recommendation as to concurrency on the counts in 62,428 and concurrency with any prior sentence that he’s subject to on that bill of information.

The sentences on the simple burglary and theft charges were ordered to run concurrent with each other and the sentence the Defendant was then serving. The sentence on exploitation of the infirm was ordered to run consecutive to the other sentences.

On November 13, 2002, Defendant filed a Motion to Reconsider Sentence asserting the following: “Defendant herein requests the Court to reconsider the sentence imposed due to the excessiveness of said sentence, and that defendant understood his sentence would run concurrently by plea bargain.” The motion was denied on November 18, 2002.

Defendant admits there was no agreement regarding the length of the sentences he would receive. However, he alleges that he understood and the State recommended that those sentences were to run concurrent with each other and with the sentence he was currently serving. The State agrees the understanding between all parties was that the Defendant would receive concurrent sentences on all charges.

It is well settled that the sentencing discretion of the trial judge cannot be limited by a sentence recommended [4by both the State and the defendant. The trial judge may accept or reject a joint sentence recommendation. State v. Collins, 359 So.2d 174 (La.1978); State v. Rios, 95-00961 (La.App. 3d Cir.3/6/96), 670 So.2d 708; State v. Barnes, 596 So.2d 302 (La.App. 3d Cir.1992).

State v. Robinson, 33,921, p. 2 (La.App. 2 Cir. 11/1/00); 770 So.2d 868, 870.

There is a distinction between an “agreed upon plea” and an “agreed upon sentence.” In Robinson, the defendant entered into an agreement wherein he plead guilty to two counts of a lesser crime of simple burglary and the state recommended the sentences be served concurrently. The court of appeal noted the plea agreement did not include a provision that the trial court would impose concurrent sentences. The court stated the “agreed upon plea” was not an “agreed upon sentence,” but only an agreement that the state would make a particular recommendation. The trial court informed the defendant that there was only a recommendation and the court would impose a sentence after considering the pre-sentence investigation report and other factors.

In this case, the record indicates that counsel for Defendant presented the plea agreement to the court, indicating the State recommended Defendant’s sentences run concurrently. Therefore, the plea agreement contained an “agreed upon plea” and not an “agreed upon sentence.” The parties agreed that a recommendation would be made and that recommendation was presented to the court. Accordingly, the State did not breach the plea agreement and the Defendant has not alleged that the plea agreement was breached.

However, we note the plea agreement, as recited by the court at sentencing, differed from that entered on the record by defense counsel at the time the Defendant entered his guilty plea. We cannot determine from the record whether the court intended to follow the recommendation set out at Defendant’s guilty plea or | ¡^whether the court intentionally deviated from that agreement which, of course, it can do. In brief to this court, the State requests that this case be remanded for resentencing in accordance with the plea agreement. Furthermore, the State asserts the understanding between “all parties” was that the Defendant would receive concurrent sentences on all charges. Accordingly, we order the Defendant’s sentence on exploitation of the infirm, as this is the only sentence not in conformity with the recommendation, be set aside and this matter remanded for resentencing on this count after full consideration of the recommendation.

REFUSAL TO CONDUCT A HEARING ON THE MOTION TO RECONSIDER SENTENCE

The Defendant contends the court’s failure to follow the State’s recommendation was compounded by the court’s refusal to hear the Defendant’s Motion to Reconsider Sentence, at which time the Defendant could have given testimony regarding his belief that, in return for his guilty plea, he was to receive concurrent sentences.

Defendant contends the following was the basis of his appeal:

David was denied a hearing at which time he could have established his belief that he was to receive concurrent sentences and prevail upon the court to honor the plea agreement. Had the court still not been amenable to imposing the sentences concurrently, then the court could have permitted him to withdraw his guilty pleas. The Motion to Reconsider Sentence having been denied ex parte, however, there was no forum in which David could establish these facts.
The defendant maintains that his plea was, therefore, involuntary and subject to recision. This assertion is supported by case law that requires the court to confirm that defendants’ “guilty” pleas are knowingly entered into. In cases where there the court has rejected the plea bargain, the defendant has been given the opportunity to withdraw his plea. Even in cases where there has been-no bargain, but the defendant reasonably believed there was, the | fidefendant has been allowed to withdraw his plea. Such should be the case with facts appealed in this matter.
Accordingly, David prevails upon this court to vacate the sentence imposed and remand this case to the trial court for further proceedings to obtain evidence of David’s understanding of the plea agreement, and, if the evidence warrants it, to allow David to withdraw his “guilty” plea.

In the motion to reconsider sentence, the Defendant never alleged his plea was involuntary or asked to withdraw his plea. Even if a hearing was held on Defendant’s motion, that hearing would not have been the proper forum to address the withdrawal of, or the voluntariness of the Defendant’s plea. Furthermore, pursuant to La. Code Crim.P. art. 881.1(C) a trial court may deny a motion to reconsider sentence without a contradictory hearing. Accordingly, Defendant was not entitled to an evidentiary hearing. See State v. Ford, 624 So.2d 32 (La.App. 2 Cir.1993).

CONCLUSION

The Defendant’s convictions are affirmed. The Defendant’s sentence for exploitation of the infirm under La.R.S. 14:93.4 is vacated and this matter is remanded for resentencing on that count after full consideration of the plea agreement. Defendant’s remaining sentences are affirmed.

CONVICTIONS AFFIRMED. SENTENCE FOR EXPLOITATION OF THE INFIRM IS VACATED. REMANDED FOR RESENTENCING. ALL OTHER SENTENCES AFFIRMED.


author: hDECUIR, Judge.

text:
    STATE in the Interest of C.J.B. v. B.C.B. & R.L.B.
    No. 03-0037.
    Court of Appeal of Louisiana, Third Circuit.
    April 30, 2003.
    Robert J. Elliott, Department of Social Services, Office of Community Services, Alexandria, LA, for Plaintiff/Appellee, State of Louisiana.
    Camille Joseph Giordano, Attorney at Law, Alexandria, LA, for Appellee, C.J.B.
    Brian K. Thompson, Attorney at Law, Alexandria, LA, for Defendant/Appellant, R.L.B.
    Elizabeth A. Gardner, Attorney at Law, Alexandria, LA, for Secondary Defendant/Appellant, B.C.B.
    Court composed of ULYSSES GENE THIBODEAUX, OSWALD A. DECUIR, and GLENN B. GREMILLION, Judges.
   hDECUIR, Judge.

B.C.B. and R.L.B. are the parents of C.J.B., a three-year-old girl who has been living in a foster home, and in the custody of the State of Louisiana, for more than two years. In 2002, the State filed a petition to terminate the parental rights of B.C.B. and R.L.B. so the child could be freed for adoption. After a hearing, the trial judge concluded that termination serves the child’s best interest, and the State’s petition was granted. Both parents have appealed; for the following reasons, we affirm.

B.C.B. and R.L.B. are married and have three children: C.J.B., a five-year-old daughter, and B.C.B.’s daughter from a previous relationship. B.C.B. is a drug addict; she has been imprisoned in the past and has enrolled in at least five treatment programs. The record shows that she stayed off drugs for approximately 13 months while C.J.B. was in foster care, and she cooperated with the case plan devised to reunify her family. However, less than two months after C.J.B. was returned to the family home on a trial basis, B.C.B. picked her up from daycare and took her to an undisclosed location where she stayed for three days smoking crack cocaine. B.C.B. did not inform her husband of her whereabouts, and he testified that he drove around looking for her, to no avail. When B.C.B. did return home, the State took all three children away. After B.C.B. failed a number of drug screens in the months following these events, the State revised its case plan, changing the goal from reunification to termination of parental rights. At the time of the termination hearing, B.C.B. was in a treatment program and was doing quite well.

The record shows that R.L.B. is an active and involved father who takes care of the children during the periods of his wife’s drug-related problems. He has had a steady job for more than twenty years, and he shows genuine love and concern for his wife and children. However, the State presented evidence of R.L.B.’s co-dependency, which leads him to cover for his wife’s transgressions, protect her from lathe consequences of her actions, and leaves him unable to realize what is best for his family. There was evidence that R.L.B. relies on his eight-year-old stepdaughter to help care for the younger girls, and he sometimes leaves her alone at home when she comes in from school. In particular, the child was left alone when R.L.B. drove around the city looking for his wife and younger children. Finally, R.L.B. admitted to testing positive for marijuana on one occasion during the pen-dency of this termination proceeding.

Termination proceedings are governed by Title X of the Louisiana Children’s Code and must always involve an examination of the child’s best interest. The supreme court explained the nature of these proceedings in State in the Interest of GJL and MML, 00-3278, p. 6-7 (La.6/29/01), 791 So.2d 80, 85-86:

This court recently discussed the special concerns involved in cases of involuntary termination of parental rights in State in the Interest of C.J.K and K.K., 00-2375, 00-2504 (La.11/28/00), 774 So.2d 107, and State in the Interest of J.A., 99-2905 (La.1/12/00), 752 So.2d 806, where we also explained that, in termination proceedings, courts must carefully balance the two private interests of the child and the parents. While the parents have a natural, fundamental liberty interest in the continuing companionship, care, custody and management of their children, Lassiter [v. Department of Soc. Servs., 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981)], supra, the child has a profound interest, often at odds with those of his parents, in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long-term, and continuous relationships found in a home with proper parental care. Lehman v. Lycoming County Children’s Servs. Agency, 458 U.S. 502, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982). In balancing these interests, the courts of this state have consistently found the interest of the child to be paramount over that of the parent. See, e.g., State in the Interest of C.J.K. and K.K., 774 So.2d at 113 (quoting State in the Interest of J.A., 752 So.2d at 811); State in the Interest of S.M., 98 0922, p. 15 (La.10/20/98), 719 So.2d 445, 452. As we stated in State in the Interest of J. A.:
The fundamental purpose of involuntary termination proceedings is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care for his physical, emotional, and mental health needs and adequate rearing by providing an expeditious judicial process for the termination of all parental rights and responsibilities and to achieve | (¡permanency and stability for the child. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parents to be terminated. As such, the primary concern of the courts and the State remains to secure the best interest for the child, including termination of parental rights if justifiable grounds exist and are proven.

752 So.2d at 811 (citations omitted).

This court has always recognized, however, that great care and caution must be exercised in these proceedings, because the permanent termination of the legal relationship existing between children and their biological parents is one of the most severe and drastic actions the State can take against its citizens. State in the Interest of J.A., 752 So.2d at 811. Parents have a natural, fundamental liberty interest in the continuing companionship, care, custody and management of their children, which warrants great deference and vigilant protection under the law. Id. Thus, we recognize that the potential loss to parents is grievous, “perhaps more so than the loss of personal freedom caused by incarceration.” Id. Because due process requires that a fundamentally fair procedure be followed when the State seeks to terminate the parent-child legal relationship, actions to terminate must be scrutinized very carefully. Id.

Title X of the Louisiana Children’s Code governs the involuntary termination of parental rights. Article 1015 provides the specific statutory grounds by which a court may involuntarily terminate the rights and privileges of parents. In order to terminate rights, the court must find that the State has established at least one of those statutory grounds by clear and convincing evidence. State in the Interest of J.A., 752 So.2d at 811 (citing La. Child. Code art. 1035(A); Santosky v. Kramer[, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)], supra). Further, even upon finding that the State has met its evi-dentiary burden, a court still should not terminate parental rights unless it determines that to do so is in the child’s best interest. La. Child. Code art. 1039; State in the Interest of C.J.K. and K.K., 774 So.2d at 113; State in Interest of ML & PL, 95-0045, p. 4 (La.9/5/95), 660 So.2d 830, 832.

In a termination case, the State has the burden of proving the statutory grounds for termination as fisted in La.Ch.Code art. 1015(5), which provides:

Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of Lsignificant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

In the instant case, the trial court found that C.J.B. had been in the State’s custody for more than one year and that the parents failed to comply with the State’s plan for reunification. The court determined that B.C.B.’s drug use was continuing, as was R.L.B.’s support of her and his denial of the risks to the child. The court addressed C.J.B.’s foster care placement, noting that she had been in the same home since she was nine months old, and the foster parents wish to adopt her. The court found termination of parental rights is in the child’s best interest and ordered that she be freed for adoption.

The record before us supports the conclusions of the trial court. Both parents candidly admitted their shortcomings as far as drug use, co-dependency, and failing to provide adequate supervision for their children. Both admitted to failing drug tests during the pendency of the termination proceedings. Dr. John Simoneaux, the psychologist who evaluated the parents in June of 2002, testified that B.C.B.’s drug use was “going to continue to plague this family,” even though she was doing well when he last saw her. He considered B.C.B.’s prognosis to be poor, given her long history of abuse, and he did not believe that R.L.B. realized the seriousness of their problems or the actions necessary to provide a stable home for the children. He concluded that termination would be in the best interest of C.J.B.

Our review of the record reveals a very difficult and unfortunate dilemma. While these parents undoubtedly have great love for C.J.B., they have not acted with her best interests in mind. R.L.B., while well-intentioned and conscientious, does not seem to understand what is best for his family. The trial court’s decision to terminate their parental rights means that C.J.B. will not be exposed to her mother’s potential Rdrug use nor will she be at risk from inadequate supervision. C.J.B., just three years old, has not lived with her parents since infancy; other than the familiarity she has gained from visits with R.L.B. and B.C.B., she does not know them as parents. The State contends that the foster parents wish to adopt her and have already been certified for adoption. In fact, the record indicates that the foster parents have delayed a move overseas to work as missionaries in order to see a conclusion to these legal proceedings. Accordingly, we conclude the trial court did not err in its decision to terminate the parental rights of R.L.B. and B.C.B.

We find no merit to the argument that R.L.B. has, in effect, been given the choice of leaving his wife or losing his children. To the contrary, R.L.B. was given the opportunity to show that he could protect his children from his wife’s addiction. By allowing B.C.B. to pick up the children from daycare and be solely responsible for them during that time, a situation that B.C.B. indicated was routine, R.L.B. failed to protect his children and failed to comply with the requirements devised by the State for return of the children to his custody.

Finally, in rendering this decision, we do not intend to imply that termination may be the appropriate outcome for R.L.B. and B.C.B. as far as their other two children are concerned. The older daughters presumably have stronger bonds with their parents than C.J.B., and the record indicates that one has Down’s Syndrome. If termination proceedings are pursued, the special needs of each child must be considered individually. Our decision in this case rests on the unique circumstances presented herein, including both the age of C.J.B. and the length of time she has been with the same foster parents who intend and hope to adopt her.

LFor the foregoing reasons, the judgment of the trial court is affirmed. Costs of the appeal are assessed to R.L.B. and B.C.B.

AFFIRMED.


author: JjPETERS, J.

text:
    Rhonda N. RYLAND, v. ST. MARY’S RESIDENTIAL TRAINING SCHOOL.
    No. 03-0027.
    Court of Appeal of Louisiana, Third Circuit.
    April 30, 2003.

      Peggy D. St. John, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Defendant/Appellant, Saint Mary’s Residential Training School.
    Rhonda N. Ryland, Pineville, LA, in proper person.
    Court composed of Chief Judge NED E. DOUCET, JR., JOHN D. SAUNDERS and JIMMIE C. PETERS, Judges.
   JjPETERS, J.

This case is on appeal by St. Mary’s Residential Training School from a judgment ordering it to comply with a compromise entered into with its former employee, Rhonda Ryland. For the following reasons, we affirm.

DISCUSSION OF THE RECORD

On December 13, 2000, Rhonda Ryland filed a claim for compensation, alleging that she injured her neck and back on May 26, 1999, while lifting and loading concrete cylinders in the course and scope of her employment with St. Mary’s Residential Training School (St. Mary’s). On July 30, 2001, Ms. Ryland filed an amended claim, requesting, in part, authorization for an anterior lumbar interbody fusion. Subsequently, St. Mary’s filed a reconventional demand seeking (1) to have any benefits to which Ms. Ryland might be entitled declared forfeited, (2) civil penalties, and (3) restitution of benefits already paid. In the alternative, St. Mary’s sought to be relieved of its obligation to pay further benefits on the basis that Ms. Ryland was capable of earning at least ninety percent of her pre-injury wages. Ms. Ryland then sought to invoke the penalty provisions of La.R.S. 23:1208 against St. Mary’s for allegedly making willful misrepresentations.

Thereafter, the parties agreed to settle their claims. On June 26, 2002, St. Mary’s attorney recited in open court the terms of the settlement as follows:

In return for waiving any and all worker’s compensation claims as of today, with termination of indemnity benefits as of today, [St. Mary’s] is willing to pay directly to the healthcare providers under the worker’s compensation fee schedule a one time surgery for an anterior lumbar fusion at the L5-S1 level and for the doctor’s post-op visits until Ms. Ryland has been discharged from the doctor’s care. ... [I]t will be that she will access her rights to that surgery within the next six months.”

Ms. Ryland appeared on her own behalf, unrepresented by counsel, and stated for the record that she was in agreement with the recitation of the compromise. The workers’ ^compensation judge (WCJ) approved the settlement, stating: “[T]his is a complicated matter and it involves claims of misrepresentation. ... Given the nature of the claim and ... especially regarding misrepresentation, the Court does find that this compromise is in your best interest, Ms. Ryland, and I do approve the compromise as it has been stated for the record....” On August 6, 2002, the WCJ signed an order of dismissal.

On October 18, 2002, Ms. Ryland filed a Motion to Enforce Judgement, contending: “[T]he settlement is not being handled fairly. We discussed what things were going to be covered under the surgery and when we got to court the things were not specifically listed one by one. I would like to be heard before the judge.” Specifically, Ms. Ryland wanted approval for a back brace, medications, and physical therapy she asserted that she needed after surgery. St. Mary’s countered with a claim for attorney fees due to the frivolous nature of the motion.

The WCJ conducted a hearing on the issue on October 28, 2002, and stated:

It seems preposterous to this Court that a payor of benefits who’s authorized surgery would exclude medication for such a serious procedure. Certainly if they had intended to preclude the payment for medication the employer who recited this information for the record would have made that clear.
Likewise, with respect for the ... back brace ... these things are to facilitate the surgery and make sure that the surgery is successful.
I do have recollection of discussion about physical therapy [off the record], I recall specifically that the employer declined to pay for any physical therapy after the surgery. ...
So I would order that the employer provide [Ms. Ryland] with the brace and [her] medications.
However, I decline to order under this settlement that the employer provide [Ms. Ryland] with physical therapy....

On that same day, the WCJ signed an order to that effect.

St. Mary’s appeals, contending that the WCJ’s order is an absolute nullity | ^because it substantively amended the June 26, 2002 order. In the alternative, St. Mary’s contends that the WCJ erred in determining that the June 26, 2002 agreement was broad enough to include the postoperative back brace and medications; in prospectively ordering it to pay for items for which no evidence was adduced in the record; and in rendering an order that was imprecise, indefinite, and uncertain.

OPINION

Louisiana Code of Civil Procedure Article 1951 provides in part that “[a] final judgment may be amended by the trial court at any time ... (1) [t]o alter the phraseology of the judgment, but not the substance; or (2) [t]o correct errors of calculation.” St. Mary’s contends that the WCJ’s October 28, 2002 order directing that it pay for the back brace and medications constituted a prohibited amendment to the June 26, 2002 order and is therefore an absolute nullity.

“[A] judgment may be amended by the court only when the amendment takes nothing from or adds nothing to the original judgment.” Tunstall v. Stierwald, 01-1765, p. 4 (La.2/26/02), 809 So.2d 916, 920. In the instant case, the judgment of October 28, 2002, added nothing to the order of June 26, 2002. It merely altered the phraseology to specify for purposes of enforcing the prior judgment that which was already incorporated into the prior judgment. See also King v. Doctor’s Hosp. of Opelousas, 01-1534 (La.App. 3 Cir. 5/8/02), 817 So.2d 473, writ denied, 02-1553 (La.9/30/02), 825 So.2d 1193.

Specifically, a brace and medications prescribed as treatment in conjunction with the lumbar fusion are necessarily concomitant with the procedure itself, as would |4be the anesthesia, lap pads, hospital stay, etc. Each such item need not be enumerated in the settlement to be understood as included therein. Especially considering “the ameliorative objectives of our workers’ compensation laws,” Maxie v. Brown Industries, Inc., 95-19, p. 9 (La.App. 3 Cir. 5/31/95), 657 So.2d 443, 448, writ denied, 95-1630 (La.10/6/95), 661 So.2d 469, and “the humanitarian principles underlying our workers’ compensation laws,” Mullins v. Courtney Equipment, 95-989, p. 8 (La.App. 3 Cir. 1/31/96), 670 So.2d 329, 333, St. Mary’s could not have realistically contemplated not paying for the brace and medications required in conjunction with the procedure itself.

“[T]he compromise instrument is the law between the parties and must be interpreted according to the parties’ true intent.” Brown v. Drillers, Inc., 93-1019, p. 7 (La.1/14/94), 630 So.2d 741, 748. Further, La.Civ.Code art. 3073 provides in part: “Transactions [or compromise agreements] regulate only the differences which appear clearly to be comprehended in them by the intention of the parties, whether it be explained in a general or particular manner, unless it be the necessary consequence of what is expressed; and they do not extend to differences which the parties never intended to include in them.” Importantly, “[i]n applying the rule of construction set forth in LSA-C.C. Art. 3073, courts are guided by the general principle ‘that the contract must be construed as a whole and in light of attending events and circumstances.’ Succession of Teddlie, 385 So.2d 902, 904 (La.App. 2d Cir.), writ refused, 393 So.2d 742 (La.1980); LSA-C.C. Art. 2050. Thus, the intent which the words of the compromise instrument express in light of the surrounding circumstances at the time of execution of the agreement is controlling.” Brown, 630 So.2d at 748.

In Weiss v. Nikon, Inc., 99-0111 (La.App. 4 Cir. 9/22/99), 745 So.2d 84, the parties entered into a settlement with the employer agreeing in part to pay for the employee’s medical expenses and vocational rehabilitation, which was approved by the WCJ. Thereafter, the employee filed a motion to enforce the settlement. The WCJ rendered judgment on that motion, ordering the employer to pay all medical expenses, including expenses incurred before and after the settlement agreement, as well as certain vocational rehabilitation expenses. On appeal, the employer contended that the judgment compelling the payment of past medical expenses was beyond the scope of the settlement. The fourth circuit affirmed the WCJ’s judgment regarding the payment of past medical expenses on the basis that ambiguity in the settlement must be construed against the party who furnished its text, ie., the employer. Additionally, the fourth circuit rejected the employer’s argument that its obligation under the settlement to pay rehabilitation expenses was limited to the opportunities listed in La.R.S. 23:1226. The fourth circuit held that the WCJ did not err in ordering that the employee receive vocational rehabilitation at a facility recommended by her treating physician, despite the fact that the settlement apparently did not specify such.

Likewise, even though the costs of the medications and brace concomitant with the surgery were not specified in the settlement, the WCJ did not err in concluding that they were included therein. As such, the October 28, 2002 judgment merely altered the phraseology of the June 26, 2002 judgment and did not add to or take away from it.

In any event, St. Mary’s contends that the WCJ erred in prospectively ordering it to pay for items for which no evidence was adduced in the record. Because issues |firelated to the brace and medications associated with the surgery were subsumed into the settlement, evidence as to those items was not at issue at the hearing on the motion to enforce the settlement. Further, our supreme court has recently stated in Authement v. Shappert Engineering, 02-1631 (La.2/25/03), 840 So.2d 1181, that a failure to authorize treatment is effectively a failure to furnish benefits. Thus, Ms. Ryland need not have incurred the expenses in order for St. Mary’s to be responsible for them. St. Mary’s is protected by the reimbursement schedule pursuant to La.R.S. 23:1034.2.

Finally, St. Mary’s contends that the WCJ erred in rendering an order that was imprecise, indefinite, and uncertain. It asserts:

No third person can read and understand exactly what is to be paid. It fails to identify the back brace. It fails to identify the specific “medications.” It provides no guidance whatsoever as to the identity of the medications the judge has directed the employer to pay. Are they non-prescription as well as prescription medications? What if these medications have no relationship to the surgery? What if the doctor dispensing the prescriptions is not the same doctor who performed Ryland’s surgery? What if the doctor dispensing the prescriptions is treating her for a condition unrelated to her surgery?

We do not find that the judgment below is imprecise, indefinite, or uncertain. It orders enforcement of the settlement. Importantly, this is not a judgment for personal injury damages. An exact dollar amount for the medical expenses need not be specified in this particular case. Further, regarding the back brace, the order requires St. Mary’s to approve and pay for “the recommended back brace for the surgery to be performed.” (Emphasis added.) Additionally, regarding medications, at the hearing on the motion to enforce the prior judgment Ms. Ryland herself limited the issue to prescribed medications, stating: “I asked ... if medications were going to be covered, before, during and after medications, you know if anything has to belnVrescribed.” (Emphasis added.) Further, the WCJ was clearly addressing only prescription medications concomitant with the surgery: “It seems preposterous to this Court that a payor of benefits who’s authorized surgery would exclude medication for such a serious procedure.” (Emphasis added.) Thus, St. Mary’s must authorize and pay for the back brace that is recommended for the surgery as well as prescription medications associated with the surgery. There is no error in the judgment below.

DISPOSITION

For the foregoing reasons, we affirm the judgment below in all respects and assess costs of this appeal to St. Mary’s Residential Training School.

AFFIRMED.

      . We note that, while the compromise was recited into the record on June 26, 2002, the WCJ's order was not reduced to writing until August 6, 2002. For purposes of this opinion, however, we will reference the order as the June 26, 2002 order.


author: I t SAUNDERS, Judge.

text:
    Alan Wade HYATT, et al. v. DDI VENTURES, INC., DDRA Capital, Inc., and TIG Ins. Co.
    No. 02-1315.
    Court of Appeal of Louisiana, Third Circuit.
    April 30, 2003.

      Skipper Maurice Drost, Attorney at Law, Mitchell P. Bergeron, Attorney at Law, Sulphur, LA, for Alan Wade Hyatt and Eve Marie Hyatt.
    Charles J. Foret, Crystal Burkhalter, Briney & Foret, Lafayette, LA, for TIG Insurance Co., DDI Ventures, Inc., and DDRA Capital, Inc.
    Court composed of NED E. DOUCET JR., Chief Judge, SYLVIA R. COOKS and JOHN D. SAUNDERS, Judges.
   I t SAUNDERS, Judge.

Plaintiff, Alan Wade Hyatt, was injured after volunteering to help employees of Delta Downs Race Track move a pool table. The trial court granted summary judgment in favor of Defendant finding that it did not owe a duty to Plaintiff that encompassed the risk that he would injure his back while voluntarily moving a pool table. Plaintiff appeals the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

This litigation arises out of an incident which occurred on March 1, 2000, at Delta Downs in Vinton, Louisiana. Plaintiff, Alan Hyatt, was an employee of Beverage Sales, Inc. as an “on premises” sales supervisor. Delta Downs Race Track is owned, operated and insured by Defendants, DDI Ventures, Inc., DDRA Capital, Inc. and TIG Insurance Company.

On the day of the incident, Delta Downs was in the process of renovating a portion of its facilities. It contacted Mr. Hyatt to place materials such as lights, mirrors, posters, and other promotional materials in the renovated areas. While performing his duties, Mr. Hyatt volunteered to help several Delta Downs maintenance supervisors move a pool table. While moving the table, Mr. Hyatt injured his back.

Mr. Hyatt filed suit against Defendants on February 16, 2002, alleging negligence. Defendants filed a Motion for Summary Judgment on September 14, 2001 arguing that Mr. Hyatt had not identified any acts of negligence on the part of Delta Downs or its employees.

The hearing on Defendants’ Motion for Summary Judgment was held on January 14, 2002. The trial court found that Defendants owed no duty to Plaintiff and subsequently granted Defendant’s motion. A formal ruling granting Defendants’ | ¡¡.Motion for Summary Judgment was signed on January 24, 2002.

Plaintiff subsequently filed his devolu-tive appeal.

ASSIGNMENT OF ERROR

On appeal, Mr. Hyatt assigns only one error, arguing that the trial court erred in finding that Delta Downs owed no duty to Plaintiff and subsequently granting summary judgment in favor of Delta Downs, dismissing Plaintiffs claims.

LAW AND ANALYSIS

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B). On appeal, summary judgments are reviewed de novo under the same criteria that govern the trial court’s determination of whether a summary judgment is appropriate. Reynolds v. Select Properties Ltd., 93-1480 (La.4/11/94); 634 So.2d 1180.

Under La.Civ.Code art. 2315, negligence claims are examined using a Duty/Risk analysis, wherein the plaintiff must prove each of the following elements: (1) defendant’s conduct was cause in fact of the plaintiffs injuries; (2) the defendant had a duty to conform conduct to a specific standard; (3) the defendant breached that duty; (4) the defendant’s conduct was the legal cause of plaintiffs injuries; and (5) plaintiff sustained actual damages. Roberts v. Benoit, 605 So.2d 1032 (La.1991). A negative answer to any of the inquiries of the duty-risk analysis results in a determination of no liability. See Mathieu v. Imperial Toy Corporation, 94-0952 (La.11/30/94), 646 So.2d 318.

In the instant case, Plaintiff must establish that a duty was owed to him by JjjDelta Downs in order to survive a summary judgment in favor of Defendants. If Delta Downs owed no duty to Mr. Hyatt to perform a certain act, or refrain from performing a certain act, then Delta Downs cannot be hable under a negligence theory of recovery and summary judgment is proper.

The question of whether a person owes a duty to another is a question of law. Harris v. Pizza Hut, 455 So.2d 1364 (La.1984). Further, the particular facts and circumstances of each individual case determines the extent of duty and a resulting degree of care necessary to fulfill that duty. Socorro v. City of New Orleans, 579 So.2d 931 (La.1991). Under Louisiana jurisprudence, generally, the owner of a facility has the duty of exercising reasonable care for the safety of persons on his premises and the duty of not exposing such persons to unreasonable risks of harm. Ortego v. State Bank and Trust Company of Golden Meadow, 316 So.2d 826 (La.App. 1 Cir.), writ denied, 320 So.2d 914 (La.1975).

The law of this Circuit is succinctly stated in LeBleu v. Dynamic Industrial Constructors, Inc., 526 So.2d 1184 (La.App. 3 Cir.), writ denied, 528 So.2d 154 (La.1988), wherein we held that an employer owed a volunteer the duty to protect the volunteer from an unreasonable risk of harm. In that case, an employee of Geosource, Inc., enlisted a volunteer to assist him in hitching an office trailer to his truck. The employee attempted to hitch the trailer using only a pry bar and the volunteer was subsequently injured. We held that the employer was liable because the employee breached the duty owed to the volunteer when he acted unreasonably and created an unreasonable risk of harm by using a pry bar to attach the trailer, resulting in injury to the volunteer.

Likewise, in the instant case, we conclude that Delta Downs owed Plaintiff the |4duty to refrain creating an unreasonable risk of harm or a hazardous condition.

In the instant case, Richie Guidry, who also volunteered to assist in moving the table, stated in his deposition that before Mr. Hyatt came onto the scene to assist in moving the table, the employees of Delta Downs discussed the manner in which they would move it. They decided to slide the table rather than lift it. Mr. Hyatt came onto the scene after this tactical discussion and was not informed to slide the table. Instead, Mr. Hyatt was told by Mike Guidry, the maintenance foreman at Delta Downs, only that they were going to rotate the table, but did not inform him to slide it. When the pool table was moved, the employees slid, while Mr. Hyatt and Mr. Guidry lifted.

We find that this evidence is sufficient to show that a genuine issue of material fact remains as to whether Mr. Hyatt was subjected to an unreasonable risk by the employees of Delta Downs. Accordingly, we hold that summary judgment is improper and the case should proceed to trial on the merits.

Defendants argue that Mr. Hyatt’s decision to not ask questions regarding the tactic for moving the table, and deciding to lift the table rather than slide it, was his own fault, and not a risk assumed by Delta Downs. However, we find that argument suggests that Plaintiff may have been guilty of contributory negligence. Contributory negligence is a question of fact, best suited for the factfinder.

DECREE

For the reasons contained herein, we find that Defendant owes Plaintiff the duty not to subject him to an unreasonable risk of harm. We also find that Plaintiff has presented sufficient evidence to show that there remains a genuine issue as to | swhether the employees of Delta Downs breached this duty owed to Plaintiff. Therefore, we reverse the summary judgment in favor of Defendants and remand this case to the trial court. All costs are hereby assessed to Defendants.

REVERSED and REMANDED.

      . Richie Guidry is the draft supervisor from Beverage Inc. He also lifted the table, but was not injured.