author: JjDOUCET, Jr., Chief Judge.

text:
    Jessica BROUSSARD, as natural tutrix of her minor child, Lannah D. Broussard v. PREMIERE, INC., Todd Richard and Reliance Insurance Company.
    No. 03-668.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2003.

      Bret C. Beyer, Sr., Hill & Beyer, Lafayette, LA, for Plaintiffs/Appellants, Jessica and Lannah Broussard.
    Roch P. Poelman, Lemle & Kelleher, L.L.P., New Orleans, LA, for Defendants/Appellees, Premiere, Inc., Todd Richard and Louisiana Insurance Guaranty Association.
    Court composed of NED E. DOUCET, Jr., Chief Judge, SYLVIA R. COOKS, and MICHAEL G. SULLIVAN, Judges.
   JjDOUCET, Jr., Chief Judge.

Plaintiffs Jessica and Lannah D. Brous-sard, appeal a judgment of the trial court dismissing their suit for damages against Defendants, Premiere, Inc., Todd Richard and the Louisiana Insurance Guaranty Association (LIGA)(suceessor to the now defunct Reliance Insurance Company), pursuant to the provisions of La.R.S. 22:1386. We affirm the judgment of the trial court. FACTS

On November 19,1998, Plaintiff, Lannah Broussard, who was 14 years old at the time, was a guest passenger in the rear seat of a 1997 Mitsubishi Mirage being operated by her friend, Casey Amy. The Mitsubishi was owned by Casey’s father, Richard Amy, and insured by Louisiana Farm Bureau Insurance Company (Farm Bureau). The Amy vehicle, which was stopped waiting for traffic in front of it to clear, was struck from the rear by a 1995 Chevrolet Suburban owned by Premiere, Inc. and being driven by its employee, Todd Richard. The suburban was insured by Reliance Insurance Company (Reliance).

Upon impact, Lannah, who testified that she was not wearing a seat belt at the time of the accident, was thrown forward, sustaining a contusion to her face when it stuck the rear of the front seat. She stated that immediately after the impact she experienced pain in her jaw, neck and back.

Following the accident Lannah received treatment by a number of medical professionals: Dr. James Pearce, a D.D.S., who treated Lannah for temporomandibular (TMJ) disorder; Dr. Clifton W. Shepherd, Jr., an orthopaedic surgeon; Dr. Leo deAl-vare, a neurologist; Dr. Angela Mayeux, another orthopaedic surgeon; and Dr. Ladislas Lazaro, IV, a rheumatologist. Lannah was also seen by Dr. |2Robert D. Franklin, who specializes in physical medicine and rehabilitation and Dr. Paul D. Ware, a specialist in psychiatry and neurology who devotes much of his practice to the investigation and treatment of fibro-myalgia. Lannah also briefly saw two psychologists, a chiropractor and underwent two courses of physical therapy.

Lannah was involved in a second, serious accident on January 28, 2000 (the pickup truck in which she was riding with seven other teenagers flipped over). This accident resulted in a broken nose which required surgical repair by Dr. Barrett Alldredge. Subsequently, the sole father-figure in her life, Michael Deville, was killed in an accident on June 14, 2000. There is no doubt that not all of her treatment was due to her accident of November 19, 1998, i.e., she was not seen by any mental health professional until after Mr. Deville was killed.

As will be discussed below, the only real issue at the trial level was did Plaintiffs’ damages exceed $105,000.00. The trial judge found they did not, and dismissed Plaintiffs’ suit. Plaintiffs appeal.

LAW AND DISCUSSION

In the rear-end accident at issue, Todd Richard, the driver of the follow vehicle was found to be at fault. Mr. Richard, who was employed by Premiere, Inc., was driving a company vehicle, and was found to be in the course and scope of his employment at the time of the accident. Premiere’s automobile liability carrier was Reliance Insurance Company (Reliance). The car in which Lannah Broussard was a guest passenger was insured by Louisiana Farm Bureau Insurance Company (Farm Bureau). The Farm Bureau policy provided $100,000/$300,000 in both liability and underinsured/uninsured (UM) coverage, as well as $5,000.00 in medical payments coverage. Sometime after the accident, Reliance went into bankruptcy and LIGA [ ¡¡was made a defendant in the place of Reliance. LIGA was established by the legislature as part of the Louisiana Revised Statutes, Title 22, Insurance, Chapter 1, Insurance Code. The purpose of LIGA can be found in La.R.S. 22:1876, which states in part; “[t]he purpose of this Part is to provide a mechanism for the payment of covered claim,s under certain insurance policies to avoid excessive delay in payment and to avoid financial loss to claimants or policyholders because of the insolvency of an-insurer.” Louisiana Revised Statute 22:1386(A) provides as follows:

A. Any person having a claim against an insurer under any provision in an insurance policy, other than a policy of an insolvent insurer which is also a covered claim, shall be required first to exhaust his rights under such policy. Such other policies of insurance shall include but shall not be limited to liability coverage, uninsured or underinsured motorist liability coverage, or both, hospitalization, coverage under self-insurance certificates, coverage under a health maintenance organization or plan, preferred provider organization or plan, or similar plan, and any and all other medical expense coverage. All entities that are prohibited from recovering against the association, as specified in R.S. 22:1379(3)(b), shall also be considered insurers for purposes of this Subsection. As to the association, any amount payable by such other insurance shall act as a credit against the damages of the claimant, and the association shall not be liable for such portion of the damages of the claimant.

Thus, when Reliance became insolvent, Farm Bureau became the “primary” insurer, i.e., the insurance company to which Plaintiffs had to look first, for payment of their damages. Under the provisions of the insurance code, LIGA only became liable for any damages in excess of those recoverable from Farm Bureau, i.e., those damages in excess of $105,000.00.

After hearing the testimony and examining the medical records, bills and depositions entered into evidence, the trial judge found that Plaintiffs had not proven that their damages exceeded the amount for which Farm Bureau was responsible.

|4This appeal turns on factual determinations of the trial judge. Recently, in Cenac v. Public Access Water Rights Assn., 02-2660, pp. 9-10 (La.6/27/03), 851 So.2d 1006, 1023, our supreme court reviewed the law applicable to the appellate review of cases involving factual determinations at the trial level:

In civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard which precludes the setting aside of a trial court’s finding of fact unless those findings are clearly wrong in light of the record reviewed in its entirety. Rosell v. ESCO, 549 So.2d 840 (La.1989). A reviewing court may not merely decide if it would have found the facts of the case differently, the reviewing court should affirm the trial court where the trial court judgment is not clearly wrong or manifestly erroneous. Ambrose v. New Orleans Police Department Ambulance Service, 93-3099, 93-3110, 93-3112, p. 8 (La.7/5/94), 639 So.2d 216, 221.

At trial, counsel for Plaintiffs stipulated that LIGA was entitled to a “credit” equal to Farm Bureau’s exposure. However, on appeal he argues that this “credit” should not extend to Mr. Richard and/or Premiere, stating that the trial judge, this court and the fifth circuit erred in finding so. See Stagg v. Strauss, 94-670 (La.App. 3 Cir. 12/7/94), 647 So.2d 621 and Winter v. FA. Richard & Associates, Inc., 95-578 (La.App. 5 Cir. 11/28/95), 665 So.2d 611. We reject Plaintiffs’ argument and will continue to follow Stagg until the legislature changes the law or the supreme court rules adversely to that decision.

As to the damages awarded, after the trial, the trial judge made the following findings of fact:

1. Defendant Todd Richard’s negligence was the sole cause in fact of the accident and the damages sustained by the plaintiffs, Jessica Broussard and Lannah Broussard;
2. Defendant Todd Richard was in the course and scope of his employment -with Premiere, Inc. at the time of the accident and therefore Premiere, Inc. is responsible for his negligence;
|ñ3. The plaintiffs have shown that as a result of the accident Lannah Broussard suffered a temporomandibular joint syndrome, cervical strain injury, bilateral sacroiliac joint injuries, loss of enjoyment of life, and that plaintiff Jessica Broussard suffered a loss of consortium; 4. The plaintiffs have failed to prove that the accident of November 19, 1998, caused plaintiff Lannah Broussard to suffer fibromyalgia, any permanent disability, any loss of earning capacity; and any future damages, general or medical.
Considering the foregoing, and the fact that the parties agree that LIGA is entitled to a credit of either $100,000 or $105,000; the Court finds that plaintiffs’ claims do not exceed the lesser agreed on amount of $100,000. Therefore, the claim against LIGA is dismissed.

Considering that the trial court’s finding that “plaintiffs’ claims do not exceed the lesser agreed on amount- of $100,000,” is a factual finding, we will undertake a mani: fest error review of Plaintiffs’ damages.

First, we address Lannah’s TMJ injury. Dr. James Pearce treated Lannah from December 2, 1998, until October 25, 1999, when he had found she had reached “maximum medical improvement concerning her temporomandibular disorder.” However, he advised her to continue to wear her splint at night “due to the deleterious effects of her nocturnal bruxism.” There is nothing in the record to connect her nocturnal bruxism with the accident of November 19,1998.

On appeal, Plaintiffs argue that Lannah is permanently disabled due to fibromyal-gia and because of this disability she has sustained, among other things, a loss of future earning capacity. Besides her TMJ injury, Lannah’s other major complaints following her first accident consisted of pain in her neck, shoulders and lower back and headaches. The two doctors which were most involved in treating these symptoms were Dr. Leo deAlvare, a neurologist and Dr. Angela Mayeux, an orthopaedic surgeon. Dr. deAlvare treated Lannah between May 1999 and May 2000. Her initial examination revealed “[mjultiple areas of muscle spasm” in the muscles Ron the sides and back of her neck. She also had a positive “Figure-4” test which indicated o problem in her pelvic region. That problem was later diagnosed as saeroiliitis. Dr. deAlvare mainly treated Lannah for her headaches. He prescribed an anti-inflammatory and a muscle relaxant for the spasms, a tricyclic to help her sleep and to help prevent headaches, and an analgesic. He also started Lannah on a course of physical therapy. Lannah stopped going to physical therapy after only a few visits, claiming it only provided temporary relief. In July 1999, Dr. deAl-vare did a nerve conduction test on Lan-nah’s lower extremities which resulted in normal findings. Because of the continued pain in neck and shoulders, Dr. deAlvare restarted her physical therapy, this time with Ruud Vuijsters. As the pain in her sacroiliac (SI) joints continued, Dr. deAl-vare referred Lannah to Dr. Mayeux in September 1999. At that point, Lannah continued treatment with both physicians. Dr. deAlvare’s notes of Lannah’s October 13, 1999 visit that her head and neck aches were improving, but she still complained of SI problems. On October 8, 1999, Dr. Mayeux injected Lannah’s SI joints. According to Dr. Mayeux, when she saw Lan-nah on October 13, 1999, Lannah “was much better. Her left SI joint was documented as markedly improved, her right about 75 percent better.” Dr. Mayeux saw Lannah again on November 3, 1999. Although Lannah had related that her headaches had improved to Dr. deAlvare on October 13th, and been released by Dr. Pearce as having reached maximum medical improvement on October 25th, she complained to Dr. Mayeux of both headaches and TMJ pain on that visit. Lannah did state that her SI joint problems had improved, but still complained of neck and “upper back” [shoulder?] pain. Dr. May-eux noted that Lannah was “woefully out of shape. And [would like to] see if, by strengthening her trunk and all, we can knock down a lot of her |7problems.” Dr. Mayeux concluded: “Basically I didn’t find a lot of anatomic reasons for her complaint[s].”

Concerning Lannah’s last visit on January 20, 2000, Dr. Mayeux testified as follows:

Basically she was having some recurrence of problems, but I sat down and talked to her, and, she tried out for the tennis team. And this was a child who was not in shape at all. I’m not surprised that she had some problems when she tried to get back to athletics. So I went — took some time, went through a bunch of things that she could do to get back in shape. She had a normal physical exam on that day. I felt that if she got back in shape, she could go about her regular activities.
Basically she had a normal physical exam on that date. She had no muscle spasm. Her SI joints were well lined up. And so basically at that point I felt that this probably was just musculoskel-etal from being out of shape.

In sum, Dr. Mayeux conclude that any back pain Lannah complained of on January 20, 2000, was from being out of shape and trying out for the tennis team, and not related to her accident of November 19, 1998.

Dr. deAlvare saw Lannah on February 8, 2000. At that time Lannah reported that her headaches, neck pain, and SI joint problems were all better. On that date she made her first complaints of upper lumbar and lower thoracic pain. Lannah did not relay to Dr. deAlvare that she had been involved in another accident on January 28, 2000. Dr. deAlvare found some trigger point in her back during his examination of February 8, 2000, and injected these to see if he could provide some relief. At trial, when asked if he attributed Lan-nah’s upper back symptoms to her accident of November 19, 1998, Dr. deAlvare testified:

No. I think it was probably, you know, if, indeed, that’s the case [that Lannah had been involved in a second accident on January 28, 2000], then I would think that — well, it seemed unusual to me that, after she[Rhad been getting better, all of a sudden, we’ve got a bunch of muscle spasms again. Unusual, but not unheard of. But a better explanation might be that she had re-injured herself. And if, indeed, that was the case, that would be very consistent with my exam.

When asked if he though it was necessary to continue her treatment past February 8, 2000, Dr. deAlvare stated:

No. I saw her after February. I wanted to see her one more time. I actually wanted to see her in March, I guess that would have been. She ended up coming back in May just to try to clean up, finish everything up,, get her off the medicines, because she was still on the medicines. Had there not been any intervening trauma, I believe that she would have been at her maximum medical improvement on that visit in February, and we probably would have taken her off the medicine right then and there.

Plaintiffs also claim that Lannah developed winging of her scapulae and fibro-myalgia as a result of the November 1998 accident. Winging of her scapulae was diagnosed by Dr. Robert Franklin, who first saw Lannah on February 11, 2000, after her second accident. Fibromyalgia was diagnosed by Dr. Ladislas Lazaro, IV; and confirmed by Dr. Paul Ware, neither who saw Lannah before her second accident. Both Drs. deAlvare and Mayeux examined Lannah for winging of the scapulae, and both found no evidence of this condition.

As to the fibromalgia, Dr. Mayeux stated that she hated to sound like, a skeptic, but in her experience patients with fibro-myalgia complain of chronic fatigue and have multiple palpable trigger points. She stated that Lannah never complained to her of fatigue or insomnia and that on Lannah’s November 1999 visit, she could only find one small trigger point. Dr. deAlvare did not find trigger points in Lannah’s upper back until after her second accident. Dr. Lazaro, who first concluded that Lannah had fibromyalgia, did not see her until August 31, 2000, some seven months after her second accident.

|9Pr. Paul Ware, who specializes in treating patients with fibromyalgia saw Lannah twice: once one January 23, 2001, and the second time on October 17, 2001. He stated the diagnosis of fibromalgia depends on “the symptom complex and then the trigger points and the location of the trigger points.” He stated that there are eighteen trigger points, nine on each side of the body and that to have a definitive diagnosis, one would have to elicit a pain response at, at least, eight of these trigger points. Dr. Ware further stated that “I think that I would not want to make the diagnosis [of fibromyalgia] without some trigger points.” He testified that Lannah had no trigger points on either of her visits; yet, he testified, that based on his review of her medical records, Lannah had fibromyalgia.

Finally, Plaintiffs argue that Lannah suffers from depression brought on by the injuries she suffered in the November 1998 accident and the inability of her treating physicians to provide her with complete relief. We note that Lannah sought no care from any mental health profession until after the death of Michael Deville, her “step-father.”

When we consider that neither of the two doctors who treated Lannah for the longest time, Drs. deAlvare and Mayeux, were of the opinion that she had either winged scapulae or fibromyalgia, that they both were of the opinion that she had reached maximum medical improvement and that her accident of November 1998, would require no further treatment, that Lannah has been described as a poor historian and that her statements to those doctors have been described as less than accurate, that she had no positive diagnosis of fibromyalgia until after her second accident, and that she sought no treatment from any mental health professional until after the death of Michael Deville in June of 2000, we cannot say that the trial judge was manifestly |inerroneous or clearly wrong in his finding that Plaintiffs had failed to prove “that the accident of November 19, 1998, caused plaintiff Lannah Broussard to suffer fibromyalgia, any permanent disability, any loss of earning capacity; and any future damages, general or medical

Without proof of those items, we, too, as did the trial judge, find Plaintiffs’ damages fail to exceed the $100,000.00 available to Plaintiffs under the UM provision of the Farm Bureau policy.

Accordingly, for the reasons stated, the judgment of the trial court is affirmed. All costs of this appeal are assessed against Plaintiffs, Jessica and Lannah Broussard.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Jason HALKER v. AMERICAN SHEET METAL.
    No. 03-678.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2003.

      H. Douglas Hunter, Guglielmo, Lopez, et al., Opelousas, LA, for Defendant/Appellant, American Sheet Metal.
    Marcus M. Zimmerman, Attorney at Law, Charles, LA, for Plaintiff/Appellee, Jason Halker.
    Court composed of NED E. DOUCET, Jr., Chief Judge, SYLVIA R. COOKS, and MICHAEL G. SULLIVAN, Judges.
   JjDOUCET, Jr., Chief Judge.

Defendant, American Sheet Metal (American), appeals a judgment of an Office of Workers’ Compensation (OWC) judge finding Claimant, Jason Halker, suffered a compensable accident on March 20, 2000, ordering American to pay for all necessary medical treatment and awarding Claimant weekly compensation benefits of $346.68 from the date benefits were terminated, April 15, 2001, until January 14, 2002, the date he was released to return to work. The OWC judge also ordered American to make up the short-fall caused by its miscalculation of benefits; awarded interest on the back due payments and the short-fall; but denied penalties and attorney’s fees. American appealed. Claimant answered the appeal seeking penalties and attorney’s fees.

FACTS

The following are the “Findings of Fact” found by the OWC judge in her reasons for judgment:

1. Jason Halker was injured during the course and scope of his employment with American Sheet Metal on March 20, 2000.
2. Jason Halker was involved in a previous accident during the course and scope of his employment with American Sheet Metal on March 17,1999[sic].
3. Claimant settled his claim for the March 17, 1997 accident. The settlement documents state, in part, “The employee initiated treatment with a local orthopaedist, Dr. Lynn Foret. Dr. For-et diagnosed bilateral DeQuarvain’s. A surgical release of the right wrist was performed on or about April 28, 1997. A similar surgery was offered on the left wrist, but refused by the patient. Given the employee’s reluctance to proceed with further treatment, Dr. Foret ordered a functional capacity evaluation. This evaluation was completed at the Industrial Rehabilitation Center of Lake Charles Memorial Hospital on June 23 and 24,1998. The results of this evaluation showed the employee could return to work at medium level. Dr. Foret has no further treatment to offer.
|z4. Claimant had an EMG/nerve conduction study of the left extremity in 1998 that was normal.
5. On August 21,2000, EMG nerve conduction studies were done on claimant and were interpreted as mild to moderate left carpal tunnel syndrome.
6. Dr. Foret had not seen claimant from July 17, 1998 until the second incident occurred.
7. Dr. Lynn Foret, claimant’s treating physician, performed a left carpal tunnel release on claimant on September 27, 2001. On January 9, 2002, Dr. Foret indicated “the patient has finished up on the left side. The left hand was reviewed of his injuries with the second accident it irritated and aggravated and caused essentially went into the carpal tunnel on the left side ...” His impression was that claimant’s left hand was healed and he was released to go back to work.
8. Prior to the carpal tunnel surgery, Dr. Holland, defendant’s choice of physician opined claimant had subjective left wrist pain, with no significant,' — injury. He was of the opinion that claimant did not need surgery and could work.
9. Dr. Clark Gunderson, the Independent Medical Examiner, opined that claimant complaints were not related to a nerve root entrapment syndrome. He did not recommend a carpal tunnel surgery. He recommended a course of Occupational Therapy and indicated he may be a candidate for evaluation by someone who limits their practice to hand and upper extremity surgery.
10. Defendants sent claimant to a hand specialist, Dr. Joe Morgan. Dr. Morgan, testifying by deposition, indicated “I thought the de Ouervain’s tendinitis went back to the time when he had had the problem back in '97, and I thought that was something that was ongoing from back then. I thought it was not caused by anything that occurred in 2000, and I didn’t think that the carpal tunnel syndrome was caused by injury. You can have carpal tunnel syndrome caused by injury. If it is caused by injury, it can be caused after someone has something like a fractured wrist, and we call that acute carpal tunnel syndrome, and they will probably require surgery early to get the pressure off the nerve. Otherwise, people have carpal tunnel syndrome for no particular reason. It just comes about over time....”

The record supports these findings. Additionally, the OWC judge reached the following “Conclusions of Law:”

| gAs a general rule, the testimony of a treating physician should be given more weight than that of a physician who examined a claimant for diagnostic purposes. Johnson v. NATCO, 651 So.2d 494 (La.App.3 Cir. 3/1/95). In this case, Dr. Foret’s opinion is given greater weight than the opinions of the other physicians. Dr. Foret opined that claimant’s second injury aggravated and essentially caused the carpal tunnel on the left side.
The significant weight given to the opinion of the court appointed expert can vary in accordance with the various factors which a trial judge utilizes in evaluating the testimony of any other witness. Thus, the' significant weight can be lesser or greater depending on the qualifications or expertise of the physician, the type of examination he performs, his opportunity to observe the patient, his review of other physicians’ examinations and tests, and any other relevant factors. Brock v. Morton Goldberg Auction, 671 So.2d 1008 (La.App. 4 Cir. 3/14/96). In the case at hand, in reference to the independent medical examiner, Dr. Gunderson, the court finds that his opinion is not conclusive as he referred claimant to a hand doctor. The hand specialist, ■ Dr. Morgan, did not entirely agree with Dr. Foret; however, he agreed that claimant would need a carpal tunnel surgery.
Therefore, after reviewing the record, considering the law and the evidence, the court finds that claimant suffered a new and compensable accident on March 20, 2002[sic] during the course and scope of his employment with American Sheet Metal and Fabrication, Inc.
It is well settled that an employer should not be penalized for bringing close factual or legal issues to court. Lindon v. Terminix Services, Inc., 617 So.2d 1251 (La.App. 3 Cir.), writ denied, 624 So.2d 1226 (La.1993). Based on the evidence presented and the inconsistencies in medical testimony, the court finds this claim was reasonably controverted. However, costs are to be paid by the defendant.

LAW AND DISCUSSION

The law as set forth by the OWC judge is correct. Additionally, we note that the following is well settled:

In compensation cases, the claimant has the burden of showing that- more probably than not an employment accident occurred and that it had a causal relation to the disability suffered. Delco v. Heritage Manor Nursing Home, 441 So.2d 309 (La.App. 3d Cir.1983), writ denied, 443 So.2d 1123 (1984). A worker’s preexisting condition does not bar his or her recovery under the workers’ compensation laws because an employer takes the worker as he finds him or her. Guillory v. U.S. Fidelity & Guaranty Ins. Co., 420 So.2d 119 (La.1982); Frederick v. Town of Arnaudville, 572 So.2d 316 (La.App. 3d Cir.1990), writ denied, 575 So.2d 373 (1991). An abnormally susceptible worker is entitled to no less protection under the workers’ compensation statute than a healthy worker. It is immaterial that the diseased or weakened condition of the worker might eventually produce the disability suffered outside of the employment situation. Guillory, supra; Toth v. Ensco Environmental Services, 546 So.2d 188 (La.App. 1st Cir.), writ granted, re versed in part on other grounds, 551 So.2d 623, writ denied, 551 So.2d 632 (1989). Said another way, the worker’s claim for disability benefits will not be disqualified if the work-related injury aggravates, accelerates, or combines with a disease or infirmity to produce death or disability for which compensation is claimed. Cadiere v. West Gibson Products, Co., Inc., 364 So.2d 998 (La.1978); Delco, supra; Toth, supra.

Baker v. Conagra Broiler Co., 93-1230, pp. 8-9 (La.App. 3 Cir. 5/4/94), 640 So.2d 494, 498, writ denied, 94-1435 (La.9/23/94), 642 So.2d 1289.

Furthermore, in Tate v. Cabot Corp., 01-1652, pp. 5-7 (La.App. 3 Cir. 7/3/02), 824 So.2d 456, 461-62, writ denied, 02-2150 (La.11/22/02), 829 So.2d 1044, this court observed the following:

Because an employer takes his employee as he finds him, a preexisting condition does not prevent recovery through workers’ compensation. Curtis v. Wet Solutions, Inc., 98-789 (La.App. 3 Cir. 12/9/98); 722 So.2d 421. Aggravation of a preexisting injury may constitute a disabling injury when, for example, the plaintiff begins to suffer new symptoms after the second workplace accident. Howell v. Service Merchandise Co., Inc., 95-79 (La.App. 3 Cir. 8/9/95); 663 So.2d 96. To be compensa-ble, the aggravation of a preexisting injury must result from an identifiable and discernable incident. City of Eunice v. Credeur, 99-302 (La.App. 3 Cir. 10/13/99); 746 So.2d 146, writ granted in part, judgment vacated in part, 99-3249 (La.1/28/00); 753 So.2d 226. Moreover, there must be a causal link between the aggravation and a work related incident. As we have recently explained,
[a] pre-existing disease or infirmity does not disqualify the claimant from receiving benefits if the workplace accident aggravated, accelerated, or combined with the disease to produce the disability for which compensation is claimed. Thus, the element of causation is satisfied if the employee’s work-related accident was a factor in bringing about the employee’s disabled status. Whether a causal relationship exists between the disability and the employment is a ^question of fact. The hearing officer’s determination in this regard cannot be reversed unless it is manifestly erroneous based on examination of the record as a whole.
The employee’s workplace accident is presumed to have caused or aggravated her disability when she proves that: (1) before the accident, she had not manifested disabling symptoms; (2) commencing with the accident, the disabling symptoms appeared; and (3) there is medical or circumstantial evidence indicating a reasonable possibility of causal connection between the accident and activation of the disabling condition. Once an employee establishes the presumption of a casual relationship, the employer must produce evidence and persuade the trier of fact that it is more probable than not that the injury was not caused by the work accident.
Rideaux v. Franklin Nursing Home, 95-240, p. 5 (La.App. 3 Cir. 11/22/95); 664 So.2d 750, 755, writ denied, 95-3093 (La.2/16/96); 667 So.2d 1058 (citations omitted). In Rideaux, we went on to explain that “[t]he presumption of causation may attach to a claimant who exhibited symptoms of her allegedly disabling illness in the distant past provided that she had suffered no such symptoms immediately prior to her workplace accident.” Id. at 756. The claimant in Ri-deaux was asymptomatic pi'ior to her accident, and her disability manifested itself only after her fall. Finding no error with the hearing officer’s conclusion that the employer failed to rebut the presumption of causation, we simply said that though the claimant was able to perform her job prior to her fall, she was rendered unable to do so subsequent thereto. As such, she was entitled to the presumption of causation.

Claimant was first injured on March 17, 1997. A surgical release of his right wrist was performed in April of that year. He was offered the opportunity to have the same procedure done on his left wrist, but declined. On October 5, 1998, he entered into a compromise of all claims associated with the 1997 accident. That compromise indicates that in June 1998, an evaluation at Lake Charles Memorial Hospital’s Industrial Rehabilitation Center concluded that Claimant could return to work “at medium level.”

Dr. Foret’s medical records indicate that bilateral EMG studies were performed on Claimant on July 10, 1998. His notes of Claimant’s July 17, 1998 visit do note 1 r“some weakness and pain to his wrist,” but, significantly, the notes fail to document that the EMG was positive for carpal tunnel syndrome in the left wrist. In fact, in a report dated October 19, 2000, Dr. Michael Holland stated: “It is noted that he had completely normal electrical studies done on both upper extremities in July 1998.”

Claimant did not return to Dr. Foret until four days after his March 20, 2000 accident. A subsequent motor conduction study was done by Dr. Paul E. Mayes on August 21, 2000. Dr. Mayes’ report of that study states: “Electrophysiologic finds suggest: (1) Mild to moderate left carpal tunnel syndrome, with axonal involvement [; and] (2) Left ulnar neuropa-thy, at or about the elbow, with axonal involvement.”

Considering that Claimant sought no medical care for his left arm/wrist for over two years, his apparent lack of symptoms during that time, the facts that he had normal electrical studies on both arms in July 1998 and that he sustained an injury on March 20, 2000, which resulted in onset of symptoms, plus the existence of medical evidence which establishes that the March 20, 2000 accident was the most reasonable explanation for his injury and disability, we agree with the findings of the OWC judge that “[C]laimant suffered a new and compensable accident on March 20, 200[0] during the course and scope of his employment.” In reaching our decision, we also considered the report of Dr. Clark A. Gunderson (which was adverse to Claimant) and that of Dr. Joe A. Morgan (which supported Claimant). For those same reasons, we find the OWC judge was correct in denying American any set-off or credit against Claimant’s settlement of his 1997 accident. The March 2000 accident was a separate and distinct event, following a period of two years in which Claimant had sought no medical treatment for left arm or wrist pain.

|7Based upon a report by Dr. Joe Morgan following his examination of Claimant on March 20, 2001, and his review of Claimant’s medical records, Defendant terminated Claimant’s weekly benefits on April 15, 2001. The OWC judge found this to be erroneous and reinstated Claimant’s benefits from April 15, 2001 through January 14, 2002.

As to the OWC judge’s awarding Claimant benefits through January 14, 2002, when he was released to return to work by Dr. Foret, Claimant’s treating physician, we note that “ ‘[t]he testimony of a claimant’s treating physician should be afforded more weight than that of an examining physician, since the treating physician is more likely to know the patient’s symptoms and complaints due to repeated examinations and sustained observations.’ ” McCall v. Wal-Mart Stores, Inc., 02-1343, p. 4 (La.App. 3 Cir. 3/5/03), 846 So.2d 832, 835, citing George v. Guillory, 00-00591, p. 10 (La.App. 3 Cir. 11/2/00), 776 So.2d 1200, 1207. We find no evidence in the record which would support a finding that the OWC judge was clearly wrong in accepting Dr. Foret’s opinion on the matter.

Finally, we address American’s allegation that the OWC judge miscalculated Claimant’s weekly compensation benefit. American bases its argument on La.R.S. 23:1021(10)(a)(ii). We find American’s reliance thereon misplaced. We find the facts in this case almost identical to those in Baldwin v. Greater Lakeside Corp., 93-768, pp. 6-8 (La.App. 5 Cir. 1/25/94); 631 So.2d 1238, 1242-43:

In appellants’ third and fourth assignments of error, they argue that Mr. Baldwin’s compensation rate was incorrectly calculated and that they are entitled to a credit for overpayment. An injured worker’s average weekly wage is determined by applying LSA-R.S. 23:1021(10)(a), which provides:
Hourly wages.
ls(i) If the employee is paid on an hourly basis and the employee is employed for forty hours or more, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater; or
(ii) If the employee is paid on an hourly basis and the employee was offered employment for forty hours or more but regularly, and at his own discretion, works less than forty hours per week for whatever reason, then, the average of his total earnings per week for the four full weeks preceding the date of the accident; or
(iii) If the employee is paid on an hourly basis and the employee is a part-time employee, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the injury.
Appellants assert that the hearing officer incorrectly used subsection (i) to calculate appellee’s compensation rate. They contend that the hearing officer should have used subsection (ii), arguing that prior to his accident, Mr. Baldwin regularly, and at his own discretion, worked less than forty hours per week. To support this argument, appellants offer the testimony of Ms. Donna Mum-phrey, the special projects manager for Greater Lakeside Corporation. Ms. Mumphrey testified at trial about Mr. Baldwin’s earnings records prior to his accident. She testified that work was available to Mr. Baldwin on a forty hour per week basis, but that he only worked one forty hour week from January through July 1988. On cross-examination, Ms. Mumphrey admitted that she was not Mr. Baldwin’s supervisor and that she was not aware of any actions taken against Mr. Baldwin for not working more than he should have.
Mr. Baldwin testified at trial that he was employed as a roofer by Lakeside beginning in November of 1987, and that he worked as many hours as he was offered. He testified he could not work when it was raining, and he would either be sent home or told to wait until the rain stopped. He testified that he was never reprimanded for not being at work and was always willing to work forty hours per week. The hearing officer found that appellants failed to show Mr. Baldwin regularly, and at his own discretion, worked less than forty hours per week.
In finding that Mr. Baldwin’s compensation rate should be calculated under LSA-R.S. 23:1021(10)(a)(i) using forty hours per week, the hearing officer relied more on Mr. Baldwin’s testimony than on that of Ms. Mumphrey, who admitted that she was not Mr. Baldwin’s supervisor and had no personal knowledge of why he worked less than forty hours per week prior to his accident. Where there is a conflict in l9the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Rosell v. ESCO, 549 So.2d 840 (La.1989). Accordingly, the hearing officer did not err in calculating Mr. Baldwin’s compensation rate.

See also, Clark v. Schwegmann Giant Supermarket, 96-2301 (La.App. 4 Cir. 1/13/99), 740 So.2d 137.

In the case sub judice, Mrs. Robin Halker, American’s bookkeeper, testified that Claimant had returned to full-time, 40 hour-per-week status, on January 4, 2000. She further testified that when work was available, Claimant was there and that he never refused any work. Accordingly, we, as did our brethren of the fifth circuit, find no error in the compensation rate as calculated by the OWC judge.

Claimant answered the appeal seeking penalties and attorney’s fees. As stated above there was contradictory medical evidence presented in this case. The OWC judge noted that neither Dr. Gunderson nor Dr. Morgan completely agreed with Claimant’s treating physician, Dr. Foret. In denying Claimant’s prayer for penalties and attorney’s fees the OWC judge stated:

It is well settled that an employer should not be penalized for bringing close factual or legal issues to court. Lindon v. Tetminix Services, Inc., 617 So.2d 1251 (La.App. 3 Cir.), unit denied, 624 So.2d 1226 (La.1993). Based on the evidence presented and the inconsistencies in medical testimony, the court finds this claim was reasonably controverted.

We find no clear error in that determination.

For the foregoing reasons, we affirm the judgment of the OWC judge. All costs of this appeal are assessed against Appellant, American Sheet Metal.

AFFIRMED.


author: It SULLIVAN, Judge.

text:
    Shelby SCHWEITZER v. WAL-MART STORES, INC., et al.
    No. 03-727.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2003.

      Elvin C. Fontenot, Jr., Leesville, LA, Leslie R. Leavoy, Jr., DeRidder, LA, for Plaintiff Appellee/Appellant: Shelby Schweitzer.
    Philip A. Fontenot, Davidson, Meaux, Sonnier & McElligott, Lafayette, LA, for Defendant/Appellant: Wal-Mart Stores, Inc.
    Court composed of NED E. DOUCET, JR., Chief Judge, SYLVIA R. COOKS, and MICHAEL G. SULLIVAN, Judges.
   It SULLIVAN, Judge.

Wal-Mart Stores, Inc. appeals a $100,000.00 judgment in favor of Shelby Schweitzer for injuries she sustained when two individuals attempted to abduct her from the parking lot of its Leesville store. Ms. Schweitzer seeks an increase in damages. For the following reasons, we reverse the judgment of the trial court.

Facts

In January 1997, Wal-Mart began operating its Leesville store twenty-four hours a day. Ralph Clouse, the store manager, was informed of the conversion to a twenty-four hour store in late 1996. In preparation for the conversion, Mr. Clouse met with his district manager and Wal-Mart’s district risk management advisor to consider and plan for any additional concerns that would arise with the conversion. Thereafter, he met with Leesville Police Chief, Bobby Hickman, to request increased police patrols at night. Chief Hickman assured Mr. Clouse that he could provide patrols every thirty minutes or less. In connection with the police patrols, Mr. Clouse arranged for the police officers to park their units at the front of the store and to have coffee, doughnuts, and other refreshments available for them just inside the front of the store to encourage the officers to get out of their units and enter the store. Mr. Clouse also hired an employee to greet customers as they entered and exited the store, had the parking lot light fixtures checked to insure that all were working and had proper bulbs, had the buggy boys wear bright orange vests while retrieving buggies in the parking lot, installed a twenty-four hour surveillance camera over the only entrance/exit door that remained open all night, locked all entrance/exit doors except the one at the front of the store, locked all shipping and receiving doors, and instructed its employees to park away from the front of the store to allow its customers to park as close as possible to the store. All employees, including the | ¡¡“greeter,” buggy boys, lawn and garden employees, employees arriving or leaving the store for their shift or lunch, were instructed to report anything unusual or suspicious they saw outside the building.

In the late evening of June 4, 1997, two young men, Jay Longsworth, twenty years old, and Ronald Ross, sixteen years old, went to the Leesville Wal-Mart to “hangout” for a while. While walking around inside the store, they decided to take a nice car and go joyriding. They exited the store and sat on lawn furniture that was situated on the sidewalk at the front of the store and looked for a ear to take joyriding. Longsworth was on probation at the time, having been convicted of burglary and theft as an adult.

At approximately 11:10 p.m., Ms. Schweitzer went to the Leesville Wal-Mart to do some shopping on her way home from work. The young men watched Ms. Schweitzer approach Wal-Mart in her Lincoln Continental and decided they would take her car for their joyride. Ms. Schweitzer entered the parking lot and parked her car under a light as close to the store entrance as possible. As she exited her car, the young men accosted her and forced her into the backseat of her car. Ross pulled out a gun he had concealed under his shirt in the waistband of his pants, and they threatened her with death if she did not cooperate. Longs-worth got into the driver’s seat; Ross got in the rear seat with Ms. Schweitzer. As Longsworth drove toward the parking lot exit, a Leesville City Police car entered the parking lot on a scheduled patrol. Trying not to attract the police officer’s attention, Longsworth slowed the car, giving Ms. Schweitzer the opportunity to jump from the car to safety.

Ms. Schweitzer sued Wal-Mart and Longsworth for damages. She alleged that Wal-Mart failed to provide security for its patrons, failed to properly light the parking |alot, failed to provide security guards, failed to take precautionary measures to prevent loitering in the parking lot, and other acts of negligence to be shown at trial. She dismissed her claims against Longsworth the day of trial.

On January 28 and 29, 2002, the matter was tried before a jury, which assessed 16.5% fault to Wal-Mart, 41.75% fault to Longsworth, and 41.75% fault to Ross and awarded Ms; Schweitzer $100,000.00 in general damages. After the trial, the trial court considered whether Ms. Schweitzer’s recovery should be reduced to the percentage of Wal-Mart’s negligence since her damages were caused by the intentional actions of Longsworth and Ross. Finding Wal-Mart had the incentive and the means to protect its patrons against the actions of would-be intentional tortfeasors, the trial court assessed Wal-Mart with 100% of Ms. Schweitzer’s damages. Thereafter, Ms. Schweitzer filed a motion for judgment notwithstanding the verdict, or alternatively, for a new trial, asserting that Wal-Mart should be assessed with 50% fault and that she should be awarded past medical expenses in the amount $4,229.35. The trial court granted the JNOV, awarded Ms. Schweitzer additional damages in the amount of $4,229.35, representing past medical expenses, and reassessed fault, assigning 50% fault to Wal-Mart and 50% jointly to Longsworth and Ross.

Wal-Mart appeals, assigning eight errors with the jury’s assessment of fault and award of damages and with the trial court’s reassessment of fault and award of additional damages. Ms. Schweitzer seeks an increase in damages. Finding merit with Wal-Mart’s third assignment of error, we reverse the judgment of the trial court.

1 ¿Discussion

To prevail on her claim against Wal-Mart, Ms. Schweitzer must prove by a preponderance of the evidence: (1) Wal-Mart had a duty to conform its conduct to a specific standard (duty); (2) it failed to conform to do so (breach of duty); (3) its conduct was the cause-in-fact of her injuries (cause-in-fact); (4) its conduct was a legal cause of her injuries (the risk and harm caused to plaintiff was within the scope of the protection afforded by the duty); and (5) she incurred actual damages. Theriot v. Lasseigne, 93-2661 (La.7/5/94), 640 So.2d 1305; Faucheaux v. Terrebonne Consol. Gov’t, 615 So.2d 289 (La.1993); Roberts v. Benoit, 605 So.2d 1032 (La.1991); Fowler v. Roberts, 556 So.2d 1 (La.1989). A negative answer to any of the above inquiries results in the determination of no liability. Mathieu v. Imperial Toy Corp., 94-952 (La.11/30/94), 646 So.2d 318.

Whether a business owner has a duty to protect its patrons from crimes perpetrated on its premises by third parties was considered by the supreme court in Posecai v. Wal-Mart Stores, Inc., 99-1222 (La.11/30/99), 752 So.2d 762. Noting that such a duty only arises under limited circumstances, the court determined that the foreseeability of such a crime is a critical inquiry. Id. The court adopted the following balancing test as the criteria for determining liability in such a case:

The foreseeability of the crime risk on the defendant’s property and the gravity of the risk determine the existence and the extent of the defendant’s duty. The greater the foreseeability and gravity of the harm, the greater the duty of care that will be imposed on the business. A very high degree of foreseeability is required to give rise to a duty to post security guards, but a lower degree of foreseeability may support a duty to implement lesser security measures such as using surveillance cameras, installing improved lighting or fencing, or trimming shrubbery. The plaintiff has the burden of establishing the duty the defendant owed under the circumstances.
IsThe foreseeability and gravity of the harm are to be determined by the facts and circumstances of the case. The most important factor to be considered is the existence, frequency and similarity of prior incidents of crime on the premises, but the location, nature and condition of the property should also be taken into account. It is highly unlikely that a crime risk will be sufficiently foreseeable for the imposition of a duty to provide security guards if there have not been previous instances of crime on the business’ premises.

Id. at 768.

In Posecai, three predatory offenses had occurred on the defendant’s premises in the six and one-half years prior to the attack on the plaintiff; only one of those had been perpetrated on one of the defendant’s customers. Making the following observations, the court found no duty to provide security patrols in the defendant’s parking lot:

A careful consideration of the previous incidents of predatory offenses on the property reveals that there was only one other crime in Sam’s parking lot, the mugging in 1992, that was perpetrated against a Sam’s customer and that bears any similarity to the crime that occurred in this case. Given the large number of customers that used Sam’s parking lot, the previous robbery of only one customer in all those years indicates a very low crime risk. It is also relevant that Sam’s only operates during daylight hours and must provide an accessible parking lot to the multitude of customers that shop at its store each year. Although the neighborhood bordering Sam’s is considered a high crime area by local law enforcement, the foreseeability and gravity of harm in Sam’s parking lot remained slight.

Id. at 768-69.

■ While Ms. Schweitzer asserts that Wal-Mart had a duty to protect her from the criminal actions of Longsworth and Ross, she does not claim on appeal it had a duty to provide heightened security in the form of security guards at its Leesville' store as the plaintiffs in Posecai claimed. Rather, she claims that Wal-Mart’s employees had a duty to question these young men regarding their presence on its premises and whether they needed assistance and that their failure to do so was a breach of that | (¡duty. Wal-Mart contends it did not owe a duty to Ms. Schweitzer with regard to the actions of Longsworth and Ross or, alternatively, if it owed her a duty, it did not breach that duty.

A business owner’s duty to take security precautions to protect its patrons in a nighttime situation was addressed in Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270. In Pinsonneault, a young man was robbed and killed while making a night deposit at the bank. The supreme court held that because the bank’s night deposit customers “faced a very low crime risk,” the bank “did not possess the requisite foreseeability for the imposition of a duty to employ heightened security measures for the protection of patrons of its night depository.” Id. at 277.

The court continued:

This finding does not end our inquiry with respect to the bank’s duty, however. As we cautioned in Posecai, while the existence, frequency, and similarity of prior incidents of crime on the premises is an important consideration in the duty determination, other factors, such as the location, nature, and condition of the property should also be taken into account. Posecai in no way implies, nor should it be interpreted to imply, that a business’ duty to protect customers- from the criminal attacks of third persons does not arise until a customer is actually assaulted on the premises. To- the contrary, Posecai recognizes, and we reiterate, that while businesses are generally not responsible for the crime that haunts our communities, “business owners are in the best position to appreciate the crime risks that are posed on their premises and to take reasonable precautions to counteract those risks.” Pose-cai, 99-1222 at 8, 752 So.2d at 768.

Id. at 277-78.

No crime had ever been committed in the Leesville Wal-Mart parking lot, and Chief Hickman testified that the store is in an area of very low crime. Accordingly, we find Wal-Mart did not have a duty to employ heightened security measures for its patrons. ■ However, memoranda prepared by Dave Gorman, Wal-Mart’s corporate risk | ^management officer, documented that the risk of crime increases after dark, and Chief Hickman acknowledged that this is a well-known fact. Indeed, Wal-Mart itself recognized that by converting its Leesville store to a twenty-four hour store the likelihood of crime increased and had Mr. Clouse take steps to provide additional security for that reason. Therefore, we find Wal-Mart had a duty to implement reasonable security measures to provide protection to its patrons who shop at night at its Leesville store. Pin-sonneault, 816 So.2d 270.

We now consider whether the steps taken by Wal-Mart were reasonable. Ms. Schweitzer argues Wal-Mart’s security measures were not sufficient, asserting the young men were on Wal-Mart’s premises for an extended period of time and should have been approached and questioned by a Wal-Mart employee. She also insinuates that the failure of a Wal-Mart employee to notice that Ross had a gun in his possession was a breach of its duty to her. Wal-Mart claims that its security measures were sufficient, pointing out that its security measures allowed Ms. Schweitzer to escape from her abductors.

Longsworth testified that he lived near the Leesville Wal-Mart, that he had been to the store 200 to 300 times before June 4, 1997, and that he had never been in trouble at the store. According to him, he and Ross went to Wal-Mart that evening to “hang out” like typical teenagers. His testimony was not clear as to how long he and Ross were at Wal-Mart before they accosted Ms. Schweitzer. When examined by Ms. Schweitzer’s attorney, his testimony indicated that they were at the store for a total of approximately one and one-half hours before they accosted Ms. Schweitzer. Yet, when examined by counsel for Wal-Mart, he testified that they had been at the store for twenty to thirty minutes when they decided to take a nice car and go |¿joyriding and that they were outside the store for only five to seven minutes before they spotted Ms. Schweitzer’s car and decided to take it for their joyride. Regardless of how long Longs-worth and Ross were at Wal-Mart, there is no evidence that their behavior was improper or suspicious or would have indicated to Wal-Mart’s employees that they posed any danger to its patrons.

With regard to Ross’ possession of a gun, Longsworth testified that Ross had a gun with him when they went to Wal-Mart and that they had been places together before with one of them carrying a gun and gone unnoticed. He explained that the gun was a small caliber gun that was easily hidden in Ross’s waistband under his shirt. Again, there is nothing to indicate that a Wal-Mart employee could have known, or even suspected, that Ross had a gun.

Longsworth testified they were not concerned that Ms. Schweitzer parked close to the front of the store, that other customers were within ten to fifteen feet of them when they accosted her, or that there were Wal-Mart employees going in and out of the garden department and the parking lot. While he testified that the arrival of the police car concerned him, he also testified that he knew the police patrolled the store and that there were security guards at the store at times. Overall, his testimony indicated that nothing but a police officer would have deterred him and Ross from doing what they set out to do.

Whether a defendant has breached a duty is a question of fact. Pinsonneault, 816 So.2d 270. Findings of fact by the trial court cannot be set aside in the absence of manifest error or unless the findings are clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). To reverse a trial court’s determination of fact, we must review the record in its entirety and find that it does not establish a reasonable factual basis for |9the finding of fact and that the fact finder is clearly wrong or manifestly erroneous. Stobart v. State, through DOTD, 617 So.2d 880 (La.1993). We must give great weight to the factual conclusions of the trier of fact and cannot re-weigh the evidence and substitute our own factual conclusions. Ambrose v. New Orleans Police Dep’t Ambulance Serv., 93-3099, 93-3110, 93-3112 (La.7/5/94), 639 So.2d 216.

We have reviewed the record and find that it does not establish a reasonable basis for the jury’s conclusion that Wal-Mart’s security measures were not reasonable. As argued by Ms. Schweitzer, the only basis for the jury’s conclusion is that Longsworth and Ross were on Wal-Mart’s premises for an hour or so and were not questioned by an employee regarding their presence. As Longsworth testified, he and Ross were hanging out like typical teenagers, and there is no evidence that either of them did anything wrong before they accosted Ms. Schweitzer. Longs-worth had been to the store 200 to 300 times before and had never been in trouble. There is simply nothing in the record which indicates that their presence gave Wal-Mart’s employees any reason to question them.

The judgment of the trial court is reversed. All costs of this appeal are assessed to Shelby Schweitzer.

REVERSED.


author: h GREMILLION, Judge.

text:
    Lutherine B. ASHWORTH v. WAL-MART STORES, INC.
    No. 03-802.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2003.

      S. Christie Smith, IV, The Smith Law Firm, Leesville, LA, Counsel for Plaintiff/Appellee Lutherine B. Ashworth.
    Charles Martin Kreamer, Sr., Allen & Gooch, Lafayette, LA, Counsel for Defendant/Appellant Wal-Mart Stores, Inc.
    Court composed of BILLIE COLOMBARO WOODARD, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   h GREMILLION, Judge.

The defendant, Wal-Mart Stores, Inc., appeals the judgment of the trial court denying its request for restitution from the plaintiff, Lutherine Ashworth, based on La.R.S. 23:1208 fraud. For the following reasons, we affirm.

FACTS

Ashworth suffered an alleged work-related injury to her lower back on March 6, 1999, while scanning a box of weights for a customer. She was initially treated by her family doctor, Dr. Ashar Qarni, for complaints of lower back pain, which radiated down into her right leg. A March 16, 1999 MRI revealed a dorsal extrusion of the L4-5 disc. A March 31, 1999 EMG and nerve conduction study by Dr. Riad Haj Murad, a neurologist, revealed irritability of the L5-S1 myotome suggestive of possible radiculopathy. Ashworth was then referred to Dr. James Perry, an orthopedic surgeon, who performed a discogram which was positive at L4-5 and L5-S1, with concordant pain reproduction. He then performed an intradiscal electrother-mal therapy or IDET procedure, which failed to relieve her lower back pain. Ash-worth underwent a functional capacity evaluation, which placed her in a sedentary work level. However, it noted that she appeared to self-limit in her performance and that severe pain made an accurate determination of her overall capabilities difficult. A July 7, 2000 MRI revealed a broad based diffuse bulge at L4-5, with associated articular facet degeneration resulting in bilateral neural foraminal narrowing. Dr. Perry diagnosed Ashworth with degenerative disc disease at two levels, with mild stenosis at L4-5. He found her only fit for sedentary work that required her to change positions frequently.

| ¡Ashworth underwent a second medical opinion with Dr. Stan Foster, an orthopedic surgeon, on June 30, 1999. She told him that she had no previous history of back or neck injury. After examining her and reviewing her previous diagnostic studies, Dr. Foster felt that she would eventually require surgical decompression and/or fusion.

Dr. Mark Dodson, an orthopedic surgeon, performed an independent medical examination Ashworth on March 6, 2000, at which time she denied any injury prior to March 6, 1999. He diagnosed Ashworth with chronic back pain, finding that the majority of her pain was located along the lumbar paraspinious musculature. He recommended that she undergo physical therapy, but did not feel that she required surgery. He felt that she could return to light or sedentary work after she gained relief from muscle spasms in her lower back.

Ashworth underwent a further second medical opinion by Dr. David DeLapp, an orthopedic surgeon, on August 10, 2000. She told Dr. DeLapp that she had no previous history of low back pain. He recommended that she undergo physical therapy, a functional capacity evaluation, a consultation for chronic pain management, and psychiatric consultation for chronic pain. Although Dr. DeLapp believed that Ashworth would have chronic pain for the remainder of her life, he felt that she should be able to return to sedentary work.

Ashworth received both indemnity and medical benefits as a result of this injury. On August 7, 2000, Wal-Mart terminated her benefits based on a taped conversation between her and an insurance adjustor and a subsequent video surveillance tape. As a result of this action, Ashworth filed a disputed claim for 13compensation seeking the reinstatement of her benefits as well as vocational rehabilitation. In its first amending answer, Wal-Mart contended that Ashworth forfeited any rights to workers’ compensation benefits based on La.R.S. 23:1208 fraud. It further sought full restitution of approximately $40,000 it paid her in medical expenses, indemnity benefits, and other expenses.

At the start of the hearing on the merits, Ashworth waived her right to any further indemnity or medical benefits arising from the March 6, 1999 accident. The only issues remaining was whether Ash-worth violated La.R.S. 23:1208 and whether Wal-Mart was entitled to restitution. At the close of evidence, the workers’ compensation judge took the matter under advisement. He then issued an oral ruling finding that Ashworth had not committed fraud for the purpose of obtaining compensation benefits in her statements to her treating physicians denying any previous similar type of back injury. However, the workers’ compensation judge found that she committed fraud with regard to her claim for mileage reimbursement based on an August 7, 2000 off-work slip from Dr. Perry’s office. Based on this finding, the workers’ compensation judge held that Ashworth forfeited all rights to benefits as of August 7, 2000, which she had already waived. He further denied Wal-Mart’s request for restitution. A judgment was rendered in this matter. This appeal by Wal-Mart followed.

ISSUES

On appeal, Wal-Mart argues that the workers’ compensation judge erred in denying its request for restitution based on the fraud committed by Ashworth.

I ¿FORFEITURE OF BENEFITS

La.R.S. 23:1208(A) provides, “It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.” Thus, in order for an employer to prove forfeiture pursuant to La.R.S. 23:1208, it must prove that a false representation was willfully made by the employee for the purpose of obtaining compensation benefits. Resweber v. Haroil Constr. Co., 94-2708, 94-3138 (La.9/5/95), 660 So.2d 7. An inadvertent or inconsequential false statement will not result in the forfeiture of benefits. Jim Walter Homes, Inc. v. Prine, 01-116 (La.App. 1 Cir. 2/15/02), 808 So.2d 818. In addition to assessing an employee with civil penalties, a workers’ compensation judge may also order restitution for any benefits or payments obtained through fraud. La.R.S. 23:1208(D). Whether an employee has forfeited her right to such benefits is a question of fact, which will not be reversed on appeal in the absence of manifest error. Smith v. Quarles Drilling Co., 99-171 (La.App. 3 Cir. 6/2/99), 741 So.2d 829, writ denied, 99-1949 (La.10/8/99), 751 So.2d 227. La.R.S. 23:1208(D) provides, “In addition to the criminal penalties provided for in Subsection C of this Section, any person violating the provisions of this Section may be assessed civil penalties ... and may be ordered to make restitution.” Thus, the awarding of restitution lies within the discretion of the workers’ compensation judge. The award or failure to award restitution will not be reversed in the absence of an abuse of discretion. See Teano v. Electrical Constr. Co., 02-2032 (La.App. 1 Cir. 5/9/03), 849 So.2d 714.

|fiIn denying Wal-Mart’s request for restitution, the workers’ compensation judge stated that he was doing so based upon his finding that none of the payments made to Ashworth prior to August 7, 2000, were based upon any fraudulent misrepresentations by her. He stated that the basic proposition raised by Wal-Mart was that Ashworth was untruthful to her treating physicians regarding any prior back problems. Although Ashworth told the physicians that she had suffered no prior back problems, the evidence showed that she was treated for lower back pain by Dr. Chanh Vinh, a general practitioner, in 1990 and 1994, and by Dr. Qarni in 1998 and 1999.

Dr. Vinh’s medical records show that Ashworth was referred to physical therapy for treatment of a lumbosacral strain suffered while employed as a bus driver by the Vernon Parish School Board in November 1990. In 1994, she underwent a CT scan of her lumbar spine, which revealed evidence of a central disc at L4-5, with obliteration of the neural foramina bilaterally. She was examined by Dr. John Raggio, a neurosurgeon, on July 18, 1994, for complaints of low back pain at the left posterior superior iliac area. X-rays revealed mild degenerative changes at L4-5. On August 25, 1994, Dr. Vinh diagnosed Ashworth with a lumbosacral strain and left sciatica.

Ashworth was seen by Dr. Qarni on October 30, 1998, at which time, she complained of low back pain. She also complained of low back pain on February 18, 1999. On March 10, 1999, after her work-related injury, she complained of lower back pain, which radiated down into her right leg.

In making his ruling, the workers’ compensation judge had the benefit of all of the evidence which had been introduced into the record. This included Drs. | fiVinh’s, Qarni’s, Perry’s, DeLapp’s, Dodson’s, Foster’s, and Haj Murad’s medical records, Drs. Qarni’s and Perry’s depositions, and Ashworth’s deposition and her testimony at trial. It further included the deposition of Stephanie Toup, the claims adjustor for Claims Management, Inc., the third-party handler of the claim, the recorded telephone conversation between Ashworth and Diane Knighting, the former claims adjustor, as well as the surveillance video of Ashworth taken by CMI’s investigator on August 7-8, 2000.

After taking the matter under advisement, the workers’ compensation judge held that Ashworth did not make any willful misrepresentations to Wal-Mart or the physicians for the purpose of obtaining compensation benefits. Citing Fuselier v. Kaough & Associates, 00-1750 (La.App. 3 Cir. 5/2/01), 784 So.2d 830, the workers’ compensation judge found that Ashworth was an unsophisticated person, with an eleventh grade education, who had not misled any of the physicians when she reported that she had suffered no similar back problems or injuries prior to this injury. In reviewing her medical records, he found that she had never reported suffering “numbness and tingling or a hot sensation and numbness or tingling down the right side,” rather, her prior complaints were all of low back pain or left-sided problems. Thus, the workers’ compensation judge held that Ashworth’s failure to report her prior lower back pain to her treating or examining physicians was not done willfully.

The workers’ compensation judge also found that it was insignificant that Ash-worth answered “no” to a question in an Associate Statement for Wal-Mart, that asked, “Have these parts ever been injured before?” He further found irrelevant the information she gave Wal-Mart about her past employment, since Ash-worth did |7not miss any work as a result of the back strain she suffered as a bus driver for Vernon Parish School Board in 1990. With regard to the surveillance video, the workers’ compensation judge stated that it “shows no compelling evidence to the Court that Ms. Ashworth is capable of any type of sustained work activity.”

Although the workers’ compensation judge does not mention the August 11, 2000, recorded conversation between Knighting and Ashworth in his oral reasons, the conversation was in the record, as well as Ashworth’s testimony concerning it, both in her deposition and during the trial. Accordingly, we assume this was considered by the workers’ compensation judge in reaching his decision to deny restitution.

The awarding of restitution pursuant to La.R.S. 23:1208(D) is discretionary, rather than mandatory. After considering the record in its entirety, we cannot say that the workers’ compensation judge abused his discretion in denying Wal-Mart’s request for restitution.

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, Wal-Mart Stores, Inc.

AFFIRMED.


author: | THIBODEAUX, Judge.

text:
    Charles THIELS, et al. v. AMERICAN INTERNATIONAL SOUTH INSURANCE CO., et al.
    Nos. 03-774.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2003.

      Kenneth Pitre, Pitre Law Office, Eunice, LA, for Appellant, Deborah Banks.
    Henry Gregory Walker, Jr., Walker, Passman & Michiels, Alexandria, LA, for Plaintiffs/Appellees, Charles Thiels, Ralph Thiels, Harvey Thiels, Darrell Thiels, and Janel Thiels Gains.
    James Berry Reiehman, Reichman & Armour, Alexandria, LA, for Defendant/Appellee, State Farm Mutual Auto Insurance Co.
    Monique Freeman Rauls, Assistant Attorney General, Alexandria, LA, for Defendant/Appellee, State of Louisiana, Through DOTD.
    Shannon James Gremillion, Briney & Foret, Lafayette, LA, for Defendants/Ap-pellees, American International South Insurance Company and Michael S. Thibo-deaux.
    Court composed of ULYSSES GENE THIBODEAUX, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   | THIBODEAUX, Judge.

Deborah Banks (Banks), the plaintiff in this personal injury case, appeals a judgment rendered by the trial court in a concursus proceeding invoked by American International South Insurance Company (AIS) in connection with a motor vehicle accident that occurred on August 21, 2001, in Rapides Parish. The accident resulted in the death of Robert Thiels (Robert). The trial court’s judgment held that the language of the AIS policy provided $10,000.00 “per person” claim coverage to each of Robert’s children, Charles Thiels, Ralph Thiels, Harvey Thiels, Darrell Thiels and Janel Thiels Gaines (the Thiels), subject to the $20,000.00 “per accident” maximum limit. Banks, the guest passenger in the vehicle driven by the tortfeasor, appeals that judgment. We affirm.

I.

ISSUE

The issue in this case is whether survival, wrongful death and personal injury actions that arise out of the same accident entitle the heirs of the deceased and the tortfeasor’s injured guest passenger to the “per person” coverage for each claimant, subject to the $20,000.00 “per accident” maximum, or whether the language of the liability policy limits the heirs to the “per person” policy limit of $10,000.00 to share among the five heirs, leaving another $10,000.00 “per person” limit to the guest passenger who was injured in the accident.

ii.

FACTS

The facts of the accident giving rise to the present case are not in dispute. On August 21, 2001, at the intersection of Louise Street and the west service road | ?along MacArthur Drive in Alexandria, Louisiana, Robert had the right of way and was driving on Louise Street through the intersection. A vehicle operated by Michael Thibodeaux (Thibodeaux) was on the service road and failed to yield in accordance with the yield sign, causing Robert’s vehicle to collide with Thibo-deaux’s vehicle. As a result of the injuries he received from the accident, Robert was taken to Rapides Regional Medical Center by ambulance. He died there on August 31, 2001.

Robert had five children who each asserted wrongful death and survival action claims against Thibodeaux and his insurer, AIS. Banks, who was a guest passenger in Thibodeaux’s vehicle, was also injured. She asserted a personal injury claim against Thibodeaux as a result of his negligence. AIS provided a liability insurance policy with bodily injury limits of $10,000.00 per person subject to a maximum of $20,000.00 per accident. Both Banks and the Thiels filed cross motions for summary judgment in the trial court. The issue was whether the AIS policy provides $10,000.00 per person claim coverage to each of the five Thiel children subject to the $20,000.00 per accident cap or whether the five Thiel children are subject, collectively, to a $10,000.00 per person limit. The trial court decided in favor of the Thiels, finding that the policy issued by AIS provides $10,000.00 per person coverage to each of the five Thiel heirs subject to the $20,000.00 per accident maximum. It is from this judgment that Banks appeals.

III.

LAW AND DISCUSSION Summary Judgment

In Louisiana, summary judgment is now favored and it shall be used to secure the just, speedy, and inexpensive determination of all actions, except those specifically excluded in La. Code Civ.P. art. 969. La. Code Civ.P. art. 966(A)(2). A ^summary judgment shall be rendered if the pleadings, depositions, interrogatory responses, and admissions, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). Material facts are those that have the potential to insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of a legal dispute. Rambo v. Walker, 96-2538 (La.App. 1 Cir. 11/7/97), 704 So.2d 30. Appellate courts review summary judgments de novo applying the same criteria as the trial court to determine whether summary judgment is appropriate. Schroeder v. Bd. of Sup’rs, 591 So.2d 342 (La.1991). Accordingly, we undertake a de novo review of the matter at bar.

The party moving for summary judgment has the burden of affirmatively showing the absence of a genuine issue of material fact. Any doubt as to whether the moving party has met that burden should be resolved against granting the motion. Bradford v. Louisiana Downs,. Inc., 606 So.2d 1370 (La.App. 2 Cir.1992). The likelihood that a party will prevail on the merits does not constitute a basis for granting a motion for summary judgment. Claiborne v. Conagra, Inc., 96-482 (La.App. 3 Cir. 10/30/96), 682 So.2d 851.

AIS Policy Language

This case involves the interpretation of the language in the AIS liability insurance policy issued to Thibodeaux. The AIS policy’s limit of liability provision states:

LIMIT OF LIABILITY
A. The limit of liability shown in the Declarations for this coverage is our maximum limit of liability for all damages resulting from any one auto accident. This is the most we will pay regardless of the number of:
|41. “Insureds,”
2. Claims made;
3. Vehicles or premiums shown in the Declarations; or
4. Vehicles involved in the auto accident.

The policy defines “bodily injury” as “bodily harm, sickness or disease including death that results.” According to the policy, the total amount of money available per accident is $20,000.00. Thus, if the “per accident” amount of $20,000.00 is applicable in this case, all of the injured parties would have to share in the $20,000.00. Although not completely clear from her brief, it appears that Banks contends that the Thiels are entitled to share only the “per person” amount of $10,000.00 because their claims are derivative of the bodily injury to and subsequent death of their father.

The rules concerning the interpretation of insurance contracts were set out by the court in State Farm Mutual Automobile Insurance Co. v. Cooper, 97-1134 (La.App. 3 Cir. 2/18/97), 707 So.2d 986, 988, citing Crabtree v. State Farm Insurance Co., 93-0509 (La.2/28/94), 632 So.2d 736, 741 (footnotes omitted):

An insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil Code. Louisiana Ins. Guar. Ass’n v. Interstate Fire & Casualty Co., 93-0911 p. 5 (La.1/14/94), 630 So.2d 759, 763; Smith v. Matthews, 611 So.2d 1377, 1379 (La.1993); Schroeder v. Board of Supervisors of La. State Univ., 591 So.2d 342, 345 (La.1991). If the words of the policy are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent and the agreement must be enforced as written. Smith, 611 So.2d at 1379; Central La. Elec. Co. v. Westinghouse Elec. Corp., 579 So.2d 981, 985 (La.1991); Pareti v. Sentry Indem. Co., 536 So.2d 417, 420 (La.1988); see La.Civ.Code art.2046. An insurance policy should not be interpreted in an unreasonable or strained manner so as to enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Interstate, 93-0911 p. 5, 630 So.2d at 763; Fertitta v. Palmer, 252 La. 336, 211 So.2d 282, 285 [ R(1968). The policy should be construed as a whole and one portion thereof should not be construed separately at the expense of disregarding another. Westinghouse, 579 So.2d at 985; Pareti, 536 So.2d at 420; see La.Civ.Code art.2050. If after applying the other general rules of construction an ambiguity remains, the ambiguous contractual provision is to be construed against the insurer who issued the policy and in favor of the insured. Interstate, 93-0911 p. 6, 630 So.2d at 764; Smith, 611 So.2d at 1379; Pareti, 536 So.2d at 420; see La.Civ.Code art.2056.

In Crabtree, a wife was driving a vehicle behind her husband who was driving a motorcycle. She suffered mental anguish when she witnessed another vehicle cross the center line and collide head-on with her husband’s motorcycle. She brought suit against the insurer of the tortfeasor seeking damages for her mental anguish caused by seeing, not only the collision, but also her husband’s leg almost completely severed. Thus, she had a Lejeune claim. The defendant in Crabtree asserted the same argument asserted by Banks in the present case — that because the wife’s mental anguish resulted from her husband’s bodily injury, it falls within the “per person” limit of the policy as opposed to the “per accident” limit. The supreme court decided that the wife’s mental anguish claim was an additional bodily injury under the insurance policy language in that case, separate and apart from the injury to the person actually involved in the accident.

Likewise, the supreme court decision in Walls v. American Optical Corp., 98-455 (La.9/8/99), 740 So.2d 1262, a case involving a wrongful death action, establishes that a wrongful death and a survival action are two separate causes of action. The language in the AIS policy is not ambiguous. It provides for the payment of $20,000.00 for all damages resulting from one accident regardless of the number of claims. Each of the five Thiel heirs has a wrongful death action. Additionally, the deceased has a survival action which was inherited by his heirs, and Banks, the guest | (¡passenger in Thibodeaux’s vehicle, has a personal injury claim. One accident, caused by Thibodeaux, resulted in multiple injuries to several persons. The Thiels’ wrongful death claims are not subject to the single person policy limit applicable to their father’s survival action. The trial court’s grant of summary judgment in favor of the Thiels was correct.

IV.

CONCLUSION

The insurance policy issued by American International South Insurance Company provides a $10,000.00 “per person” coverage to each of the Thiel heirs, subject to the $20,000.00 “per accident” maximum limit of the policy. The judgment of the trial court is affirmed. All costs of appeal are assessed against plaintiff-appellant, Deborah D. Banks.

AFFIRMED.


author: THIBODEAUX, Judge.

text:
    Charles THIELS, et al. v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION & DEVELOPMENT.
    Nos. 03-775.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2003.
    Kenneth Pitre, Pitre Law Office, Eunice, LA, for Appellant, Deborah Banks.
    Henry Gregory Walker, Jr., Walker, Passman & Michiels, Alexandria, LA, for Plaintiffs/Appellees, Charles Thiels, Ralph Thiels, Harvey Thiels, Darrell Thiels, and Janel Thiels Gains.
    James Berry Reichman, Reiehman & Armour, Alexandria, LA, for Defendant/Appellee, State Farm Mutual Auto Insurance Co.
    Monique Freeman Rauls, Assistant Attorney General, Alexandria, LA, for Defendant/Appellee, State of Louisiana, Through DOTD.

      Shannon James Gremillion, Briney & Foret, Lafayette, LA, for Defendants/Ap-pellees, American International South Insurance Company and Michael S. Thibo-deaux.
    Court composed of ULYSSES GENE THIBODEAUX, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   THIBODEAUX, Judge.

For the reasons discussed in the consolidated case of Charles Thiels, et al. v. American International South Insurance Co., et al., 03-774 (La.App. 3 Cir. 12/10/03), 861 So.2d 757, 2003 WL 22909165, the judgment of the trial court is affirmed. Costs of the appeal are assessed to Deborah D. Banks.

AFFIRMED.


text:
    Deborah D. BANKS v. AMERICAN INTERNATIONAL SOUTH INSURANCE COMPANY, et al.
    Nos. 03-776.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2003.
    Kenneth Pitre, Pitre Law Office, Eunice, LA, Counsel for Appellant, Deborah Banks.
    Henry Gregory Walker, Jr., Walker, Passman & Michiels, Alexandria, LA, Counsel for Plaintiffs/Appellees, Charles Thiels, Ralph Thiels, Harvey Thiels, Darrell Thiels, and Janel Thiels Gains.
    James Berry Reichman, Reichman & Armour, Alexandria, LA, Counsel for Defendant/Appellee, State Farm Mutual Auto Insurance. Co.
    Monique Freeman Rauls, Assistant Attorney General, Alexandria, LA, Counsel for Defendant/Appellee, State of Louisiana, Through DOTD.
    Shannon James Gremillion, Briney & Foret, Lafayette, LA, Counsel for Defendants/Appellees, American International South Insurance Company and Michael S. Thibodeaux.
    Court composed of ULYSSES GENE THIBODEAUX, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   THIBODEAUX, Judge.

For the reasons discussed in the consolidated case of Charles Thiels, et al. v. American International South Insurance Co., et al, 03-774 (La.App. 3 Cir. 12/10/03), 861 So.2d 757, the judgment of the trial court is affirmed. Costs of the appeal are assessed to Deborah D. Banks.

AFFIRMED.


text:
    AMERICAN INTERNATIONAL SOUTH INSURANCE COMPANY, v. Charles THIELS, et al.
    Nos. 03-777.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2003.
    Kenneth Pitre, Pitre Law Office, Eunice, LA, for Appellant — Deborah Banks.
    Henry Gregory Walker, Jr., Walker, Passman & Michiels, Alexandria, LA, for Plaintiffs/Appellees — Charles Thiels, Ralph Thiels, Harvey Thiels, Darrell Thiels, and Janel Thiels Gains.
    James Berry Reichman, Reichman & Armour, Alexandria, LA, for: Defendant/Appellee — State Farm Mutual Auto Insurance Co.
    Monique Freeman Rauls, Assistant Attorney General, Alexandria, LA, for: Defendant/Appellee — State of Louisiana, Through DOTD.
    Shannon James Gremillion, Briney & Foret, Lafayette, LA, for Defendants/Ap-pellees — American International South Insurance Company and Michael S. Thibo-deaux.
    Court composed of ULYSSES GENE THIBODEAUX, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   THIBODEAUX, Judge.

For the reasons discussed in the consolidated case of Charles Thiels, et al. v. American International South Insurance Co., et al, 03-774 (La.App. 3 Cir. 12/10/03), 861 So.2d 757, the judgment of the trial court is affirmed. Costs of the appeal are assessed to Deborah D. Banks.

AFFIRMED.