author: hLOLLEY, J.

text:
    Dorline McADAMS, et al, Plaintiffs-Appellants, v. WILLIS KNIGHTON MEDICAL CENTER, Defendant-Appellee.
    No. 38,181-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 19, 2003.

      Rivers, Beck, Dalrymple & Ledet by Joseph T. Dalrymple, Alexandria, for Appellant.
    Watson, Blanche, Wilson & Posner by Chris J. LeBlane, Baton Rouge, for Appel-lee.
    Before BROWN, PEATROSS and LOLLEY, JJ.
   hLOLLEY, J.

Dorline and Dewey McAdams appeal a summary judgment in favor of Willis Knighton Medical Center (“Willis Knigh-ton”). For the following reasons, we reverse the trial court’s judgment.

FACTS

In September 2001, Dorline McAdams and her husband, Dewey McAdams, went to Willis Knighton Medical Center in Shreveport to visit Mr. McAdams’ sister. After parking in the hospital lot, they walked toward the hospital entrance across a paved concrete surface. Before reaching the entrance, Mrs. McAdams allegedly “stumped her toe” at an expansion joint and fell forward onto her face, sustaining injuries.

The McAdams filed suit against Willis Knighton asserting that the concrete surface was uneven, with one section of concrete over an inch higher in elevation from the remainder of the concrete surface. The McAdams alleged that Willis Knigh-ton was at fault because its premises contained a hidden defect in the form of an abrupt change in elevation of the concrete surface of more than one inch. Pre-trial discovery ensued, including the taking of the depositions of Mr. and Mrs. McAdams, as well as the taking of the deposition of James Stephens (“Stephens”), an investigator hired by the McAdams to photograph the area where Mrs. McAdams’ fall occurred.

Willis Knighton filed a motion for summary judgment to which it attached the previously-noted depositions, as well as the affidavit of Jerry Ivey (“Ivey”), a hospital engineer for Willis Knighton, and the affidavit of Mike Sullivan (“Sullivan”), a supervisor in the security department of Willis |2Knighton. Based on the pleadings, depositions, and affidavits, Willis Knighton asserted there was no genuine issue of material fact because the McAdams could not prove that the specific area in the parking lot where Mrs. McAdams fell was unreasonably dangerous. Willis Knighton pointed out that Mrs. McAdams did not know the exact location in the parking lot where she stumped her toe, and did not personally know the elevation in that area. Likewise, Willis Knighton asserted that Mr. McAdams could not point to the exact spot where his wife fell and that Stephens, the investigator who photographed the area, did not see the fall and also had no independent knowledge of the location of the fall. Furthermore, Willis Knighton asserted that, as a matter of law, there was no defect in the parking lot that created an unreasonably dangerous condition based upon the conditions described by the Mc-Adams and Stephens.

Ivey’s affidavit indicated that, based upon his education and experience, he was able to determine if a parking lot composed of concrete blocks and expansion joints was defective, that he had measured the height variance at the joint in the location Mrs. McAdams claims she fell and that in his opinion as an industrial engineer, the height variance found of one-half inch to one inch at most did not create an unreasonable risk of harm. Ivey indicated that he was familiar with the area where the fall took place, and no reports of any problems in that area were reported to him either prior to or after Mrs. Mc-Adams’ fall. He also stated there are almost always some variances in height from the concrete at an expansion joint, even when the concrete is newly poured, that such variances are easily seen, and that the 13cost of repairing every such deviation would be prohibitive. Although Ivey disagreed with Stephens’ report that any height variances of one and one-eighth inch to one and three-eights inch existed at the location, he opined that such a variance did not create an unreasonable risk of harm.

The affidavit of Sullivan indicated that he had personal knowledge of complaints and accidents in. the parking lot, that he was personally familiar with the area where Mrs. McAdams fell, and that he was aware of no other complaints or falls in that area either prior to or after her fall.

In response to Willis Knighton’s motion for summary judgment, the McAdams essentially argued that the issue of whether a defect constitutes an unreasonable risk of harm is a factual determination for the trier of fact and involves many considerations that should be resolved on a case-by-case basis. The McAdams also urged the court to weigh the testimony of Willis Knighton’s engineer and their investigator in order to determine who was more accurate and credible “on the disparity and height of the elevation.” Furthermore, noting that Mr. McAdams’ deposition stated that Willis Knighton’s security personnel had indicated the occurrence of prior falls, the McAdams asked the court to let Sullivan testify subject to cross-examination on the adequacy of record-keeping, and method of data collection.

The trial court granted Willis Knighton’s Motion for Summary Judgment and this appeal by the McAdams ensued.

DISCUSSION

Summary judgment procedure is designed to secure the just, speedy |4and inexpensive determination of every action; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). Under the procedures of La. C.C.P. art. 966(B), summary judgment shall be rendered forthwith 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 the mover is entitled to judgr ment as a matter of law. Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Singleton v. Booker, 37,198 (La.App.2d Cir.05/14/03), 847 So.2d 107, writ denied, 2003-2030 (La.11/07/03), 857 So.2d 495.

Although the initial burden in summary judgment remains with the mover to show that no genuine issue of material fact exists, once the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that material factual issues remain. Estate of Levitz v. Broadway, 37,246 (La. App.2d Cir.05/14/03), 847 So.2d 170. Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 2000-2507 (La.12/08/00), 775 So.2d 1049. The court must draw those inferences from undisputed facts that are most favorable to the party opposing the motion for summary judgment. Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.02/29/00), 755 So.2d 226; Estate of Levitz, supra.

The pertinent provisions of La. C.C. art. 2317.1 state:

The owner or custodian of a thing is answerable for damages occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

Prior to the Louisiana Legislature’s adoption of La. C.C. art. 2317.1, cases such as the one at bar were analyzed under the provisions of La. C.C. art. 2317 which states, in pertinent part: “We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody ...” In Boyle v. Board of Sup’rs, Louisiana State University, 96-1158 (La.01/14/97), 685 So.2d 1080, a case whose operative facts arose prior to the adoption of La. C.C. art. 2317.1, the Louisiana Supreme Court noted that the strict liability imposed by Article 2317 required the plaintiff to prove that the vice or defect of the thing was a condition that posed an unreasonable risk of harm to others; the finding of the existence of a defect alone was not a sufficient analysis to establish liability.

In order to determine whether a defect created an unreasonable risk of harm, the supreme court in Boyle applied a risk-utility balancing test which weighed factors such as the gravity and risk of harm, individual and societal rights and obligations, and the social utility involved. As a result of employing the balancing test, the court concluded that a sidewalk upon which the plaintiff was walking was not defective despite a depression that |Bthe trial court found to be anywhere from one-half inch to one inch or more. In Boyle, the court found the risk of injury apparently was not great because the evidence showed that the plaintiff was the only person ever reported to have fallen at that location despite it being a high traffic area. On the other hand, the court found that the utility of the sidewalk, located on a university campus, was clear and carried great weight in the equation. Furthermore, the evidence showed that it was unreasonable to expect the university to police and keep in perfect repair the more than 22 miles of sidewalk on the campus.

The supreme court also applied an unreasonable risk of harm analysis in the case of Reed v. Wal-Mart Stores, Inc., 97-1174 (La.03/04/98), 708 So.2d 362. Reed concerned whether a parking lot was defective, and in this regard the court noted:

It is common for the surfaces of streets, sidewalks, and parking lots to be irregular. It is not the duty of the party having garde of the same to eliminate all variations in elevations existing along the countless cracks, seams, joints, and curves. These surfaces are not required to be smooth and lacking in deviations, and indeed, such a requirement would be impossible to meet. Rather, a party may only be held liable for those defects which present an unreasonable risk of harm.

At the same time, the supreme court stated that, “Because of the plethora of factual questions and other considerations involved, the issue [of whether an unreasonable risk of harm exists] necessarily must be resolved on a case-by-case basis.”

In a similar vein, we stated in Johnson v. Brookshire Grocery Co., 32,770 (La. App.2d Cir.03/01/00), 754 So.2d 346, writ denied, 2000-0938 (La.05/26/00), 762 So.2d 1107:

l7The determination that a defect presents an unreasonable risk of harm predominantly encompasses an abundance of factual findings, which differ greatly from case to case. The unreasonable risk of harm criterion entails a myriad of considerations and cannot be applied mechanically.

Although the adoption of La. C.C. art. 2317.1 in 1996 required a plaintiff to prove that an owner of a thing either knew or, in the exercise of reasonable care, should have known of a defect which caused damage, and additionally that the damage could have been prevented by the exercise of reasonable care that the owner failed to reasonably exercise, we note that an unreasonable risk of harm under the jurisprudence preceding adoption of Article 2317.1 is precisely the risk that an owner, in the exercise of reasonable care (an exercise based on a risk-utility balancing process), would take steps to identify and eliminate.

Applying these summary judgment and liability principles in the instant case, we must conclude that the trial court erred in granting summary judgment.

On appeal, Willis Knighton argues in favor of affirming the trial court’s judgment based on several grounds relating to the McAdams’ burden of proof. According to Willis Knighton, the McAdams had to prove that Willis Knighton had custody of the thing that caused the injury, that it contained a defect (a condition creating an unreasonable risk of harm), and that the defect caused Mrs. McAdams’ injury. Furthermore, the McAdams had to prove that Willis Knighton knew or should have known of the vice or defect. However, Willis Knighton asserts that the McAdams offered no evidence to prove any of these elements so that multiple reasons existed to Lgrant summary judgment. We disagree.

First, Willis Knighton’s Motion for Summary Judgment did not call into question whether the area where the accident occurred was under the ownership or custody of Willis Knighton. Instead, all indications are that the accident occurred on Willis Knighton’s property near the main entrance to the hospital. Furthermore, while Willis Knighton did assert in its motion that the McAdams could not prove the specific area where Mrs. McAdams fell, we read Mr. McAdams’ deposition as indicating that his wife tripped along a particular segment of an expansion joint, and that, while he did not know the exact spot, he did identify within a few feet the spot at which his wife’s foot hit the elevated pavement. Pictures of this area indicate that the pavement was elevated all along the expansion joint in the area, and that while the exact height of the elevation may have varied slightly from foot to foot, the difference in elevation was approximately one inch (or a little more) along the expansion joint. Thus, the fact that the McAdams may not know the exact spot where Mrs. McAdams tripped hardly defeats their cause of action. Instead, the real concerns here are whether the defect presented an unreasonable risk of harm and whether Willis Knighton knew or, in the exercise of reasonable care, should have known of the defect.

As previously noted, Ivey’s affidavit contains his opinion as an industrial engineer that the height variance at the expansion joint does not create an unreasonable risk of harm. However, his opinion as an engineer does not, standing alone, require a trier of fact to reach the same result under a risk-utility balancing test. The appellants plainly showed the existence of |fla defect at the location where Mrs. Mc-Adams tripped, and it is Ivey’s factual statements and findings that are important here as variables to account for in the balancing test. Ivey notes in his affidavit that no reports of any problems in the area were reported to him either prior to or after Mrs. McAdams’ fall. Likewise, the affidavit of Sullivan indicates that he was not aware of other complaints or falls in the area. This evidence tends to indicate that the risk of harm at that location from the defect was not great. This is also supported by the fact that the area in question was an open, well-lighted area, unobscured from the view of persons walking there.

Ivey’s affidavit also points out that expansion joints are beneficial because they allow the avoidance of irregular cracks that could result from a single block of concrete, and that there are almost always variances in height at such joints. Furthermore, considering the extensive parking area in the Willis Knighton Health System that uses concrete blocks with expansion joints, repair of every deviation at such joints would be cost prohibitive, require frequent replacement of concrete, and would not guarantee that no variance at the joints would occur. This testimony was aimed at showing the social utility of having expansion joints and the prohibitive cost of repair.

However, even when we fully consider this evidence as part of the risk-utility balancing test, in order to affirm a summary judgment we would have to conclude that reasonable fact finders could not differ on the outcome of risk-utility balancing tests applied in this case. We cannot reach this conclusion because there are other factors involved in the balancing test |inthat weigh in the opposite direction. First, with respect to the gravity of harm, it is obvious that Mrs. McAdams’ injuries as asserted in the petition and supported by the deposition testimony, were severe. Her face-first fall onto the hard concrete surface allegedly resulted in a broken nose, broken teeth, a missing crown on a tooth, and bruising to her right wrist. Injuries such as these are easy to envision as the result of such a trip-and-fall accident. Additionally, we note that the main entrance to a hospital is an area that naturally will tend to have a higher percentage of pedestrians who are in less than good health, who may be less sure-footed, and who may be at significantly greater risk of falling and sustaining serious injury. This observation goes to both the likelihood of harm and the gravity of harm.

Finally, we observe that regardless of the massive square footage of concrete found in the Willis Knighton Health System, we are looking at the main entrance to one of the four hospitals in the system. Such an area obviously is one over which an owner or custodian would want to exercise particularly good care, not only because it is a high traffic area, but also because of the individuals likely to use the area. Additionally, the pictures of the hospital entrance indicate that a curbed concrete island existed near the entrance and that the island was quite a few inches higher than the surrounding paved surfaces. It appears that individuals walking from at least some portions of the parking lot, if they did not step up, onto, and over the island, would walk around the island in the direction of the main entrance and would then traverse the exact area where Mrs. McAdams allegedly tripped and fell. Put another way, the island effectively tended to Indirect pedestrians toward the area where the uneven paving condition existed, and that condition was directly across from the main entrance to the hospital. This observation goes to the likelihood of harm and the gravity of harm.

All things considered, under our de novo review of the trial court’s grant of summary judgment, we find that a genuine issue of material fact still exists with respect to whether or not the defect presented an unreasonable risk of harm. In so concluding, we are quite mindful of the supreme court’s observations in Reed, supra, that it is common for the surfaces of streets, sidewalks, and parking lots to be irregular, and that those having garde of them have no duty to eliminate all variations in elevation. However, a party may be held liable for those defects which present an unreasonable risk of harm, and we are also mindful of the supreme court’s statement in Reed, supra, that because of the plethora of factual questions and other considerations involved, the issue of whether an unreasonable risk of harm exists must be resolved on a case-by-case basis. Thus, our conclusion in the instant case is based on the unique facts thus far presented, chief among them being that this case comes before us on a motion for summary judgment, not after a trial on the merits. The question is not whether Willis Knighton is likely to prevail on the factual issues at trial, but simply whether there are genuine issues of material fact for trial.

Finally, while the deposition evidence certainly tends to indicate that Mrs. Mc-Adams tripped on the defect, there is still the question of whether Willis Knighton either knew, or in the exercise of reasonable care, should hyhave known of the defect. While there is no evidence before us of Willis Knighton’s actual knowledge, the inquiry into whether Willis Knighton, in the exercise of reasonable care, should have known of the defect is largely answered by the preceding discussion concerning the risk-utility balancing test. Because the defect existed near the main entrance of the hospital, because the parking lot was directly across from the main entrance so that patients and visitors going between the hospital and the parking lot were likely to traverse the area where the defect existed, especially in light of the elevated, curbed concrete island near the entrance, and because of the impaired health likely present in a significant number of those traversing the area, we cannot conclude as a matter of law that, in the exercise of reasonable care, Willis Knigh-ton should not have known of the defect.

CONCLUSION

For the reasons set forth above, the judgment of the trial court is reversed, and this case is hereby remanded to the trial court for further proceedings. Costs are assessed to Willis Knighton Medical Center.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: bPEATROSS, j.

license: Public Domain

text:
    Louis C. MAYS, Plaintiff-Appellant, v. CROSS ROOFING AND CONSTRUCTION, Defendant-Appellee.
    No. 38,010-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 19, 2003.
    John E. Settle, Jr., Bossier City, for Appellant.
    Eskridge E. Smith, Jr. by Linda S. Blackman, Bossier City, for Appellee.
    Before STEWART, PEATROSS & DREW, JJ.
   bPEATROSS, j.

This appeal arises from a workers’ compensation judgment in favor of Defendant, Cross Roofing and Construction (“Cross Roofing”), denying workers’ compensation benefits to Plaintiff, Louis C. Mays (“Mays”). Mays now appeals the judgment. For the reasons stated herein, we affirm.

FACTS

On January 14, 2002, Mays commenced work for Cross Roofing in Shreveport. Ken “Blue” Cross (“Cross”) is president of Cross Roofing and hired Mays as a hot tar pot operator on a commercial job. The commercial job was delayed, so Mays and a crew of roofers were sent to work on a job replacing a roof on an existing Shreveport residence. When the roofers arrived at work, they all signed in on a time sheet in the front office; next to the time sheet was a large yellow placard instructing them to immediately report any injury to, their supervisor. The roofers rode to and from the job site together in a truck. Once at the job site, Mays was assigned general ground cleanup duties; as the roofing crew removed the existing shingles from the roof deck and threw them to the ground, Mays picked up the shingles and. carried them to a truck for disposal. While performing these tasks over several days, Mays allegedly received injuries when he stepped on some nails at the job site. Subsequently, he filed a claim with Cross Roofing’s workers’ compensation insurance company, which was denied. Thereafter, Mays filed a disputed workers’ compensation claim with the Office of Workers’ Compensation against Cross Roofing, claiming that hisD alleged work-related injuries led to the amputation of his left leg below the knee.

The matter went to trial on May 1, 2003. Mays, who was wearing tennis shoes on the days he claimed he stepped on nails at the job site, testified' that the ground at the job site was covered with nails and that, on the first day of work, he stepped on at least one nail that penetrated the sole of his left shoe and injured his foot. Mays stated that he removed the nail from his foot and kept working, but “doctored” his foot that night. He did not report any injury to his supervisor. According to Mays, he returned to the job site the next day and stepped on “three or four” “eight-penny” nails that nearly went entirely through his left foot. He testified that Cross was present at the job site and saw him pulling nails out of his “feet;” however, Cross denied this and further denied that Mays complained of, or reported, any foot injury. Mays testified that he continued to work after pulling out the nails and that that night his roommate, Geneva Pennington, treated his wounds. He did not report any injury to his supervisor.

The next day, January 16, Mays again returned to work at the job site where he said that, near the end of the day, he stepped with his left foot on at least three more nails. He stated that he left three nails in his shoe rather than pull them out and that, during the ride back to the shop with the other roofers, he took his shoe off with the nails still lodged in the sole and left them in the shoe. Mays testified that, during these three days, he never got[3any nails in his right foot, only in his left foot. He did not report any injury to his supervisor.

Mays suffers from diabetes (since at least 1994), high blood pressure and congestive heart failure (diagnosed in 1993) and has had extensive and ongoing medical treatment for these conditions for years. Medical records reveal that these conditions were often poorly controlled by diet or medication. Mays repeatedly denied that he was having trouble from his diabetes when he went to work for Cross Roofing, although medical records from July 2001 show that his diabetes was poorly controlled at that time and he admitted that he sought treatment for pain in his left foot prior to working for Cross Roofing. As a result of his condition, Mays has worked only irregularly, if at all, since 1994. His medical records show occasional complaints of pain in both his feet.

The shoe in question that Mays wore to the job site was introduced into evidence at the trial. Mays testified that he left the nails in the shoe until he delivered the shoe to his attorney. Private investigator Richard Turner examined the shoe and removed the nails, marking them for identification at the time. The shoe contained three different types of nails. In the center of the shoe there was a felt nail or button cap nail with an orange plastic circular head. Near this nail, but slightly closer to the toe, there was a 7/8" roofing nail. Approximately two inches from the toe of the shoe there was a 1 1/4" nail. On the inside of the shoe in the insole, there was a hole through the shoe corresponding with the position of this 1 1/4" | ¿nail; surrounding this hole is a stain on the insole that could be blood. No other stains of any type are apparent on the shoe’s insole. Neither the insole nor the sole of the shoe has any obvious evidence of other punctures. Cross testified that 1 1/4" nails would have been present at the job site where Mays was working due to the type of roof involved and that there could also have been felt nails, but that they would not have encountered 7/8" nails at this site because those nails are used for a different type of roof.

Two of Mays’ co-workers, Larry Marshall (“Marshall”) and Ben Murray (“Murray”), testified regarding their recollection of the events at the job site. Marshall recalled that Mays told him that he was in pain, but he interpreted this to mean that Mays was sore because he had not worked for a long time. Marshall, who rode in the truck with Mays to and from the job site, did not recall Mays ever taking his shoe off or complaining of foot injuries. Murray was the foreman on the job site where Mays worked; like Marshall, Murray did not remember Mays complaining of any foot injury or stepping on any nails. Both men said that they would have remembered such an event if it had happened.

Mays returned to work on Thursday (wearing different shoes), but the crew did not work that day because it was raining. He stated that he went home that morning with his foot badly swollen. Murray testified, however, that Mays did not complain of foot trouble that day. Mays did not work again for Cross Roofing. He came in the next week to pick up his paycheck and testified that Cross saw that he was limping and that his foot was swollen.

| .¡Mays’ left foot did not improve over the next week; and, on January 28, 2002, he went to the emergency room at LSU Medical Center for treatment. Medical records show that Mays told doctors that he had injured his foot with nails on the roofing job; doctors there diagnosed Mays with gangrene and amputated a portion of his left foot. This operation did not completely resolve the condition and doctors performed a second operation to amputate Mays’ left leg below the knee.

Some months later, Mays returned to the Cross Roofing office with Ms. Pennington. Mays testified that he showed Cross his injury and that Cross began cursing him, went into the warehouse to get a gun to shoot him and tried to force Mays’ car door open to “jump on” Mays. Ms. Pennington agreed with this version of events. Cross recalled the visit differently; he testified that Mays asked if he had insurance and that he told Mays he did, but that he had not seen him in six or seven months. He admitted that he then asked Mays to leave, but denied cursing him. Murray overheard part of this encounter and testified that Mays said, “you’re going to have to take care of me” and that Cross told Mays to get off of the property or get a lawyer. Murray said that he did not hear Cross cursing Mays.

After hearing all of these witnesses, the Workers’ Compensation Judge (“WCJ”) took the matter under advisement and subsequently denied Mays’ claim with written reasons. The WCJ found that the medical records directly contradicted Mays’ testimony that his diabetes was improved when he went to work for Cross Roofing and that he had not suffered from foot and leg pain. Further, the WCJ noted that Mays’ co-workers could not 1 ^corroborate his testimony that he had shown his co-workers his swollen foot in the truck on the way back from the job site. The WCJ also noted Cross’ testimony that Mays never reported any accident to the company, but returned only several months later asking about insurance. Finally, the WCJ concluded by finding that Mays had not proved that he suffered an accident at work since he was not a credible witness and he lacked corroborating evidence to support his argument. Mays now appeals.

DISCUSSION

We review the findings of fact by a WCJ under the “manifest error” standard. Doucet v. Baker Hughes Production Tools, 93-3087 (La.3/11/94), 635 So.2d 166. The issue is not whether the WCJ was right or wrong, but whether the factual conclusion was reasonable. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993); Stevens v. Wal-Mart Stores, Inc., 27,977 (La.App.2d Cir.11/1/95), 663 So.2d 543. Mere conflicts in evidence will not suffice to overturn a WCJ’s reasonable evaluations of credibility and reasonable findings of fact. Rosell v. ESCO, 549 So.2d 840 (La.1989). Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, supra; Taylor v. Garrett, 28,729 (La.App.2d Cir.10/30/96), 682 So.2d 831. The manifest error/clearly wrong standard of review is whether the WCJ’s findings are reasonable in light of the record reviewed in its entirety. Pugh v. Casino Magic, 37,166 (La.App.2d Cir.4/11/03), 843 So.2d 1202.

|7The worker in a compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. Bruno v. Harbert International, Inc., 593 So.2d 357 (La.1992). 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. Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends or by medical evidence. Id.

In the case sub judice, Mays’ left shoe shows evidence consistent with a puncture wound and subsequent foot injury. One such injury could suffice as an “accident” within the meaning of the workers’ compensation law provided that the WCJ otherwise accepts the worker’s testimony. In this case, the WCJ did not accept the claimant’s testimony because the physical evidence, the medical evidence and the testimony of co-workers discredit Mays’ story of the alleged “accident.”

Mays described in his testimony numerous serious nail injuries to his left foot, including several instances where 3-inch-long nails pierced through his left shoe into the sole of his foot and nearly out of the top of his foot. Mays’ shoe, however, bears evidence of only one allegedly injurious puncture wound to the foot instead of the numerous serious wounds that he claimed to have suffered. Moreover, at trial, Mays testified that Cross saw him pulling nails out of his “feet,” but we point out that surely it would have | sbeen extremely difficult, if not impossible, for Mays to remove his shoe with the nails still embedded in his foot. Further, Mays did not report any injury to his supervisor. We also note that Mays miraculously escaped from stepping on any nails with his right foot. It seems unusual that all the nails he allegedly stepped on were with his left foot only.

Moreover, Mays’ medical records reveal a long history of problems with his feet related to his diabetes and are rife with observations that his diabetes was poorly controlled. Mays submitted no evidence at trial that his injury was a result of the alleged puncture wound from the nail rather than his preexisting medical problems. Finally, none of Mays’ co-workers observed the extraordinary series of injuries that he claimed to have suffered or, indeed, observed any injury to his foot at all. The testimony, medical records and other evidence do not support Mays’ claim or satisfy his burden of proof to establish that he suffered a work accident that resulted in disability. The WCJ’s findings are reasonable in light of the record reviewed in its entirety. Upon the record as a whole, we find no manifest error in the trial court’s decision not to credit the testimony of the claimant.

CONCLUSION

For the foregoing reasons, the judgment of the WCJ against Plaintiff, Louis C. Mays, is affirmed. Costs of this appeal are assessed to Mr. Mays.

AFFIRMED.

      . Mays is a roofing laborer with a ninth-grade education.

        . Mays said that he stepped on eight-penny nails, but also said that eight-penny nails are more than three inches long. Eight-penny nails are two and one-half inches long..

      . There was some dispute about the position of the nails in the shoe after it was delivered to the attorney's office, but it is unclear how, or if, the nails were moved.


author: JjLOLLEY, J.

text:
    Sylvia COLE-GILL, et al., Plaintiffs-Appellants, v. Benny MOORE, et al., Defendants-Appellees.
    No. 37,976-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 19, 2003.
    Rehearing Denied Jan. 22, 2004.

      Tutt and Bordelon by Charles G. Tutt, Shreveport, for Appellants.
    Daryl Gold, Shreveport, for Appellee Benny Moore.
    David L. White, Jeffrey S. Delaune, Bossier City, for Appellee Allstate Timber Co.
    Mayer, Smith & Roberts by Steven E. Soileau, Shreveport, for Appellee Conti-nential National Indemnity Co.
    Before CARAWAY, PEATROSS, LOLLEY, JJ.
   JjLOLLEY, J.

Sylvia Cole-Gill and twenty-four other plaintiffs (“appellants”) appeal the judgment of the Eleventh Judicial District Court for the Parish of DeSoto against Benny Moore, individually and d/b/a Piney Wood Timber Company (“Moore”), Allstate Land & Timber Company (“Allstate”), and Continental National Indemnity Company (“Continental National”). For the following reasons, the judgment is affirmed and amended in part and remanded as it pertains to Moore and Allstate and is reversed at it pertains to Continental National.

Facts

This is a lawsuit arising from the alleged misappropriation and cutting of timber. A petition and two amended petitions were filed in the litigation, resulting finally in there being twenty-five named plaintiffs, some, but not all, of the descendants of Mattie and William Whorton, who had seven children. The appellants descend from three of the seven children. The named defendants to the original lawsuit were Moore, Allstate, and Continental National, Allstate’s liability insurer.

The appellants own an undivided interest in tracts of land approximating 40 acres in DeSoto Parish, Louisiana (the “property”), with their ownership interest approximating 37% of the property. There are thirty-one additional owners/coheirs of the property whose ownership interest is about 63% — they were not plaintiffs in the litigation.

12In January 2000, Moore did business as Piney Wood Timber Company. At that time, he approached Wardie Whorton Scherber (“Scherber”) and her mother, Gladys Whorton (“Whorton”), at their residence located on the property. Scherber and Whorton apparently told Moore they were heirs with an ownership interest in the property, and they informed Moore of other family members with ownership interests. Moore expressed his interest in buying the timber from the heirs to sell to Allstate, which would arrange for the timber to be cut.

On January 6, 2000, a timber deed was executed, listing seven Whorton heirs as sellers; however, only two persons— Whorton and Scherber — were signatories on the deed (the “original deed”). The original deed purported to transfer 100% interest in the timber on the property, for a sales price of $28,000. Based on that price, Moore paid each of the listed sellers $4,000.00.

However, Allstate apparently miscalculated and over-valued the timber on the property. Knowing this, Moore prepared another deed identical to the original deed except for an altered sales price of $67,000 (the “forged deed”). The forged deed was ultimately recorded. Allstate then turned around and paid Moore $81,700 for the timber, and a second deed was executed by Moore to Allstate to effect the sale.

Allstate cut the timber. The parties stipulated that Allstate earned revenue of $100,683.15 from the sale of the timber. It was also stipulated 13that its cost of cutting and hauling was $41,770.92. The stipulated value of the timber was $58,912.23.

As a result of the unauthorized sale of the timber, suit was brought by the appellants. They claimed damages for the value of the timber and treble damages and attorney’s fees pursuant to La. R.S. 3:4278.1. Allstate denied fault, claiming that it too was a victim of Moore, because it lost money in the timber deal as a result of Moore’s misrepresentation regarding the timber’s value. Continental National denied coverage under the terms of the commercial general liability policy (the “policy”). Ultimately, Moore was charged with and pled guilty to felony theft of timber. At the time of trial, he had made restitution in the amount of $21,950.

After a trial of the matter, the trial court rendered judgment without reasons and found Moore, Allstate, and Continental National liable, in solido, to the appellants in the amount of $25,248.09, subject to the payments in restitution made by Moore, leaving the remaining damages due the appellants $3,298.09. An appeal of that judgment ensued by the appellants, which appeal has been answered by Continental National.

Discussion

On appeal, appellants argue that the judgment was in error, because the trial court failed to award treble damages and attorneys fees as stated in La. R.S. 3:4278.1. Specifically, the appellants maintain that Moore’s and Allstate’s actions required the imposition of treble damages and attorney fees. For the following reasons, we agree.

Louisiana R.S. 3:4278.1 states, in pertinent part, as follows:

14A. It shall be unlawful for any person to cut, fell, destroy, remove, or to divert for sale or use, any trees, or to authorize or direct his agent or employee to cut, fell, destroy, remove, or to divert for sale or use, any trees, growing or lying on the land of another, without the consent of, or in accordance with the direction of, the owner or legal possessor, or in accordance with specific terms of a legal contract or agreement.
B. Whoever willfully and intentionally violates the provisions of Subsection A shall be liable to the owner or legal possessor of the trees for civil damages in the amount of three times the fair market value of the trees cut, felled, destroyed, removed, or diverted, plus reasonable attorney’s fees.
C. Whoever violates the provisions of Subsection A in good faith shall be liable to the owner or legal possessor of the trees for three times the fair market value of the trees cut, felled, destroyed, removed, or diverted, if circumstances prove that the violator should have been aware that his actions were without the consent or direction of the owner or legal possessor of the trees.

Further, Louisiana R.S. 3:4278.2 (colloquially known as the “80% rule”) states, in pertinent part, as follows:

B. A buyer who purchases the timber from a co-owner or co-heir of land may not remove the timber without the consent of the co-owners or co-heirs representing at least eighty percent of the ownership interest in the land, provided that he has made reasonable effort to contact the co-owners or co-heirs who have not consented and, if contacted, has offered to contract with them on substantially the same basis that he has contracted with the other co-owners or co-heirs.
E. Failure to comply with the provisions of this Section shall constitute pri-ma facie evidence of the intent to commit theft of the timber by such buyer.

As this court recognized in McConnico v. Red Oak Timber Co., 36,985 (La.App.2d Cir.05/16/03), 847 So.2d 191:

La. R.S. 3:4278.1 must be read in pari materia with its companion statute, La. R.S. 3:4278.2. R.S. 3:4278.2 provides that a co-owner of land may sell his or her undivided interest in | fithe timber; however, the buyer cannot remove the timber without the consent of at least 80% of the ownership interest in the land. La. R.S. 3:4278.2(A) and (B). Failure to comply with the provisions of the statute constitutes prima facie evidence of intent to commit theft by the buyer. La. R.S. 3:4278.2(E). Accordingly, reference to “the owner or legal possessor” in La. R.S. 3:4278.1 must be construed to mean “at least 80% of the ownership interest in the land.”

Louisiana R.S. 3:4278.1 sets forth the categories of trespasser culpability, i.e., moral bad faith, legal bad faith (good faith but should have known), and good faith. As we also noted in McConnico, supra:

... the basis of damages for each category of culpability is a single measure, the “fair market value.” Hence, in the current version of the statute: Section B penalizes the willful and intentional trespasser (moral bad faith) with damages equal to three times the fair market value of the trees cut, plus attorney fees; Section C penalizes the good faith trespasser who should have known his actions were without the consent of the owner (legal bad faith) with damages equal to three times the fair market value of the trees cut, but without attorney fees unless notice is given and disregarded. Finally, the good faith trespasser (who has no reason to suppose the timber does not belong to him) is not hable for treble damages under the statute. He is liable only for the fair market value. (Citations omitted).

The statute prohibiting the cutting of trees without consent and authorizing treble damages is punitive in nature and must be strictly construed. Sullivan v. Wallace, 33,387 (La.App.2d Cir.08/23/00), 766 So.2d 654, writ denied, 2000-2647 (La.11/17/00), 774 So.2d 978. It is only when a-person clearly violates its provisions that he will be assessed the severe penalty of treble damages. Callison v. Livingston Timber, Inc., 2002-1323 (La. App. 1st Cir.05/09/03), 849 So.2d 649. As the facts in this case show, Moore and Allstate clearly violated La. R.S. 3:4278.1, and even | fiunder the strictest construction of the statute, are clearly those intended to be penalized with treble damages.

Moore’s actions

Here, the facts show that Moore acted “willfully and intentionally”, when he “divert[ed] for sale” the timber in this case and was in bad faith as envisioned under section B of La. R.S. 3:4278.1. Primarily, we note that criminal charges were brought against Moore in connection with the transaction, to which he pled guilty. The offense to which he pled guilty, i.e., theft, requires “an intent to deprive another” of their property. Thus, in connection with the criminal proceedings regarding the timber at issue, Moore admitted to acting “willfully and intentionally.” Furthermore, even without considering Moore’s criminal guilty plea to felony theft, the testimony and evidence adduced in these civil proceedings also indicate that Moore acted “willfully and intentionally,” because he failed to obtain the requisite approval by 80% of the heirs to legally consummate the purchase of the timber — • despite the fact that he had knowledge that the heirs existed.

Specifically, at trial Moore testified that he obtained the legal description of the property from records of the DeSoto Parish Assessor’s office, which showed the property was assessed to Mattie and William Wharton. Moore admitted that the only people he met with personally in connection with the transaction were Scherber and Whorton. However, he |7claimed that he talked to “two or three different people by telephone,” identifying Arthur Cole, another heir and appellant herein, as one of the people he spoke with over the phone. Although Moore stated that he sent some contracts out, not identifying to whom they were sent, he proceeded with the transaction despite the fact he never got the executed contracts back. Moore related that Scherber wrote the sellers’ names on the top of the original deed, but that he took no effort to determine whether those were all of the heirs with an interest in the property, and instead he “just took [Scher-ber’s] word for it.” Moore stated that Scherber and Whorton signed on behalf of all the sellers, although he had no document giving them such authority.

Although Moore may not have known exactly how many heirs were involved, he obviously knew that there were seven branches of the family, because he had seven checks made — one to each branch of the family identified by Scherber. He knew that Scherber and Whorton, in some capacity, represented only one branch of the family. Even without knowing exactly how many heirs existed, by no stretch could Scherber and Whorton (who had no ownership interest in the property) account for 80% of the heirs. Moore was an experienced timber man, having been in the timber business since 1994, and he clearly had the requisite knowledge needed to legally carry through such a transaction. Without doubt, Moore acted “willfully and intentionally” when he failed to acquire the necessary approval from 80% of the heirs to consummate the purchase of the timber; therefore, the trial court erred when it failed to make such a finding and in | ¡Jailing to assess treble damages and attorney fees against Moore pursuant to La. R.S. 3:4278.1(A) and (B).

Allstate’s actions

The appellants also argue that the trial court erred in failing to assess treble damages against Allstate, arguing that although Allstate may not have been as culpable as Moore, its actions demonstrated the sort of “legal bad faith” to which treble damages should be assessed pursuant to La. R.S. 3:4278.1(0). We agree that Allstate was culpable; however, as discussed herein, Allstate’s actions tend to establish that it acted in bad faith and is liable under La. R.S. 3:4278.1(B).

The evidence at trial clearly indicated that Allstate was aware, or at the very least, should have been aware that Moore’s actions, and subsequently Allstate’s, were without the consent of the owner of the timber in question (i.e., that 80% of the heirs had not approved the sale). The record shows that Allstate: (1) had actual knowledge that the property was owned by the heirs of Mattie and William Whorton; (2) knew that Moore had approval of the sale only by some of the heirs; and, (3) most importantly, was aware of the 80% rule pertaining to the purchase of timber from heirs.

Allstate’s representative and employee involved in this transaction was John Mills (“Mills”), who had more than twenty-five years of experience in the timber industry. The record reflects that Mills knew that the property was assessed to Mattie and William Whorton, and thus, owned in some capacity by their heirs. Specifically, at the trial of this matter, Mills 1 ntestified that he was present when Moore first approached Scherber and Whorton about purchasing the timber. Mills acknowledged the difficulty of dealing with property owned by heirs to a succession. In fact, Mills testified that he ordinarily would examine Moore’s documentation regarding the ownership of the property, and he was familiar with this particular property’s legal ownership status. In fact, Mills acknowledged that he had seen the tax assessor’s records pertaining to the property, and he was aware that the property was assessed to Mattie and William Whorton. Finally, and notably, when asked if he had to watch “his p’s and q’s” when “dealing with heir property,” Mills responded affirmatively, further adding that he had failed to do so in this case.

Mills also explained that he had overheard Moore and Whorton discuss the other heirs, but that he had never received any documentation as to who those heirs might be or that Whorton and/or Scherber had authority to act on their behalf. Further, Mills testified that after receiving the forged deed from Moore, he noticed that Whorton and Scherber had signed for the heirs listed across the top, but that he made no investigation as to the propriety of such. Mills stated that he simply assumed the family was in agreement regarding the sale. Mills recklessly relied on that assumption, despite the fact that he was presented with an unrecorded deed from Moore void of any documentation that Whorton and Scherber had the authority to act on behalf of the other branches of the family (i.e., a power of attorney). 11(lFinally, Mills admitted having knowledge that he needed the approval of 80% of the heirs in order to legally consummate the sale.

On appeal, Allstate contends that it too was a victim of the misdeeds of Moore, whom Allstate characterizes as the real “culprit” in this ease. But, as the facts in this case show, that characterization is not accurate. Allstate argues that although its behavior in connection with this transaction may have been “lax,” such practice was common in the industry. Furthermore, Allstate suggests that its “inference” that the heirs were in agreement was reasonable. However, such “lax” business dealings, based on mere assumptions and inferences, when Allstate had explicit knowledge of the property’s ownership as well as Louisiana’s 80% rule, are not reasonable. Allstate cannot insulate itself from liability merely by purchasing the property from Moore, whom Allstate characterizes as its “middleman,” when (1) the public records indicate that the property was owned by the heirs; and (2) it had actual knowledge that the property was owned by various heirs.

As we previously stated in McConnico, supra, “a third party dealing with immovable property is charged with knowledge and notice of the existence and contents of a recorded instrument affecting the property. Ignorance of such is culpable.” Id. at 196. Where such an instrument contains language that fairly puts a purchaser on inquiry as to the title and he does not avail himself of the means and facilities at hand to obtain knowledge of the true facts he is to be considered as having bought at his own risk and peril. Id., citations omitted.

InLouisiana R.S. 3:4278.1 appears to manifest an intent by the legislature to impose a severe penalty (i.e., treble damages) upon those who flagrantly disregard the property rights of timber owners. Allstate, the entity that cut the timber, demonstrated such a flagrant disregard for the property rights of the appellants. Here, Allstate not only had the constructive knowledge of the property’s true ownership via the public records, but it also had actual knowledge that the property was owned by various heirs. This knowledge of the property’s ownership was coupled with Allstate’s knowledge that by law certain precautions must be taken and procedures adhered to when purchasing timber from heirs to original owners (i.e., the 80% rule). Armed with that knowledge, Allstate persisted with its reckless actions. So considering, Allstate, like Moore, was in legal bad faith and is therefore liable as well for treble damages and attorney fees.

Insurance Coverage

In its answer to the appellants’ appeal, Continental National raises three assignments of error, all related to the issue of insurance coverage under its policy issued to Allstate. First, it maintains that under the clear language of the policy, coverage would not extend to the actions of Allstate if determined that the occurrence at issue was not an accident. Furthermore, Continental National argues that if Allstate’s actions were either intended, or at a minimum, not expected, such actions were thereby excluded from coverage under the policy. We agree.

_bAn insurance policy is a contract that constitutes the law between the parties. Marcus v. Hanover Ins. Co., Inc., 98-2040 (La.06/04/99), 740 So.2d 603; Pareti v. Sentry Indem. Co., 536 So.2d 417 (La.1988). If the wording of the policy is clear and expresses the intent of the policy, the policy must be enforced as written. Id.

The policy issued to Allstate stated, in pertinent part, as follows:

1. Insuring Agreement.
a. [Continental National] will pay those sums that the insured becomes legally obligated to pay as damages because of ... “property damage” to which this insurance applies.
* * * *
2. This insurance applies to ... “property damage” only if: a. The ... “property damage” is caused by an “occurrence” that takes place in the “coverage territory”; ...
❖ * * *
2. Exclusions.
This insurance does not apply to:
a. Expected or Intended injury
“Bodily injury” or “property damage” expected or intended from the standpoint of the insured....

The policy goes on to define an “occurrence” as “an accident.” We note that the policy language is clear and unambiguous.

The very issue of insurance coverage for a claim of wrongful cutting of timber was recently addressed by this court in Pender v. Elmore, 37,690 (La.App.2d Cir.09/24/03), 855 So.2d 930, 935. In that case we reversed the trial court’s summary judgment denying insurance coverage due to the lissubjective nature regarding an insured’s “^pectation as to the scope of its coverage. In pg , noted:

Within the context of insurance coverage, the term accident or an equivalent reference to an act or event causing injury which was neither expected nor intended from the standpoint of the insured has been construed by the courts to include not only the insured’s negligent conduct, but also intentional conduct as long as the insured did not subjectively expect or intend the resulting injuries or damages.

Id. at 935-36. (Emphasis original).

Furthermore, in Pender, we recognized the Louisiana Supreme Court’s pronouncement in Williams v. City of Baton Rouge, 98-1981, 98-2024 (La.04/13/99), 731 So.2d 240, that:

The purpose of the intentional injury provision is “... to prevent an insured from acting wrongfully with the security of knowing that his insurance company will 'pay the piper’ for the damages.” “[N]ot all injuries resulting from an intentional act will be excluded, but only those injuries that were themselves intended.” “The subjective intent of the insured, as well as his reasonable expectations as to the scope of his insurance coverage, will determine whether an act is intentional. An act is intended if the perpetrator desires the results of his action or he believes that the results are substantially certain to occur.”

Pender, supra at 936.

Here, as we have discussed, Allstate’s actions were tantamount to being intentional and, thus, not accidental. Although armed with the actual and constructive knowledge of the property’s true ownership, as well as knowledge of the 80% rule, Allstate acted anyway — clearly an action which was not an accident, and, thus, not an “occurrence” covered under the policy language. Moreover, Allstate’s damages were expected from its own standpoint, and, therefore, excluded under the policy. John Keith, co-owner of Allstate, admitted at trial that he would expect to have a claim against [14him for unlawful cutting of timber if he failed to obtain the proper permission from the owners for cutting timber. Clearly, Allstate, the insured in this case, knew and expected that such an action against it could occur if it failed to obtain proper authorization for cutting timber, and such an expected incident under the policy is clearly excluded. Therefore, the trial court erred in finding National Continental liable in solido with Moore and Allstate, and that portion of the judgment is hereby reversed. Additionally, our finding makes moot the assignment of error raised by Continental National regarding the coverage issue under the Professional Services Exclusion of the policy.

Damages and Attorney Fees

Having concluded that treble damages should be assessed against Moore and Allstate, we now turn to the calculation of those damages. The parties stipulated as to the value of the trees, that being $58,912.23, which was the amount recognized by the trial court. The amount apportioned to the appellants is $25,248.09 (i.e., 3/7 of the stipulated value), again, an amount recognized by the court. Considering our conclusion regarding the assessment of treble damages, we determine that this is the amount to be tripled, resulting in treble damages of $75,744.27. After taking the amount of restitution already paid by Moore ($21,950.00), we award the appellants $53,794.27.

As to the attorney fees, counsel for appellants seek a contingency fee of one-third of the total amount assessed against Moore and Allstate. Pursuant to La. R.S. 3:4278.1(B) the appellants are entitled to attorney fees, |1Bbut the statute does not dictate specifically how those fees should be determined, only stating that such fees should be “reasonable.” Thus, the fixing of an attorney fee is discretionary with the court. So considering, we instruct the trial court to determine the amount of appellants’ attorney fees based on the factors listed in City of Shreveport v. Chanse Gas Corp., 34,958, 34,959 (La. App.2d Cir.08/22/01), 794 So.2d 962, writ denied, 2001-2657, 2001-2660 (La.01/04/02), 805 So.2d 209. Those factors include “... the ultimate result obtained, the responsibility incurred, the importance of the litigation, the amount of money involved, the extent and character of the work performed, legal knowledge, attainment and skill of the attorneys, number of appearances, intricacies of the facts involved, diligence and skill of counsel, and the court’s own knowledge.” Id. at 978.

Finally, we award the appellants $4,000 for attorney fees incurred in connection with the appeal, in addition to that amount in attorney fees to be awarded by the trial court.

Conclusion

For the foregoing reasons, the judgment of the trial court against Benny Moore, individually and d/b/a Piney Wood Timber Company and Allstate Land & Timber Company is affirmed and amended in part and remanded. The judgment as it pertains to Continental National Indemnity Company is reversed. Costs of these proceedings are to be paid one-half by Moore and Allstate and the other one-half by the appellants.

AFFIRMED AND AMENDED IN PART AND REMANDED; REVERSED IN PART.

APPLICATION FOR REHEARING

Before WILLIAMS, CARAWAY, PEATROSS, DREW, and LOLLEY, JJ.

Rehearing denied.

      . The individual appellants are: Sylvia Cole-Gill, Arthur Cole, Walter Mae Cole Hendry, Dorothy Jean Cole-Grimes, Hattie Cole Simon, Quinton Briggs, Mattie Mae Cole-Top-pen, Sylvester Cole, Juanita Cole-Howard, Linda Flem-Buttrill, George Leslie Flem, Anthony Carl Spiller, Myron S. Hopes, Donita Hopes-Abraham, Derrick Hopes, Kawana Hopes-Bowie, Ruth Shepherd-Middleton, Timothy John Shepherd, Elijah Rubins, Jessie Shepherd, Donald Ray Shepherd, CarrLa Je-nell Hopes, Rhonda Yvette Hopes-Lewis, Roosevelt Hopes, Jr. and Ronald Bernard Hopes.

      . Wardie’s father and Gladys' husband was Wade Whorton, a son and one of the seven children of Mattie and William Whorton.

      . The Bill of Information brought by the De-Soto Parish District Attorney against Moore charged him with the offense of timber theft over $500, specifically stating that Moore "committed theft of timber in that he did cut and remove timber in excess of $500.00 without the consent of at least 80% of the co-owners and/or co-heirs representing 80% ownership interest of the timber.” The court minutes from the criminal proceedings reflect that Moore, upon hearing the factual basis for his plea, pled guilty to the offense of theft greater than $500.00.

      . The forged deed was dated January 6, 2000, as was the deed from Piney Wood Timber to Allstate. The forged deed was not recorded until January 7, 2000; thus, it could not have been recorded when presented to Mills.

      . This was previously noted in Morgan v. Fuller 441 So.2d 290, 296 (La.App. 2d Cir.1983), writs denied, 443 So.2d 596 (La.12/16/83) and 443 So.2d 599 (La.12/16/83) as regarded the predecessor to the current La. R.S. 3:4278.1. Although the statute has been amended since the assertion in Morgan, supra, the intent of the statute clearly remains the same.


author: I!BROWN, C.J.

text:
    STATE of Louisiana, Appellee, v. Marvin Earl GARRETT, Appellant.
    No. 38,069-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 19, 2003.
    Rehearing Denied Jan. 22, 2004.
    J. Ransdell Keene, for Appellant.
    Don M. Burkett, District Attorney, Michael Earl Daniel, Assistant District Attorney, for Appellee.

      Before BROWN, PEATROSS, and LOLLEY, JJ.
   I!BROWN, C.J.

Defendant, Marvin Earl Garrett, was indicted on three counts of distribution of cocaine. A jury convicted him of two counts and the court imposed concurrent 30-year hard labor terms. Defendant has appealed urging that he was denied a fair trial due to prosecutorial misconduct. Finding no merit to defendant’s claim, we affirm his convictions and sentences.

Facts

Imri Dale Matthews, a 70-year-old recently widowed and retired farmer, lived in rural DeSoto Parish. After his wife’s death he got involved with cocaine. In April 2002, Matthews agreed to cooperate with Pat Cobb, a deputy working narcotics for the DeSoto Parish Sheriffs Office. Thereafter, Matthews made three controlled purchases of crack cocaine from defendant. Deputy Cobb paid Matthews for making the buys. The record is unclear whether the deal included immunity from prosecution for Matthews.

Matthews had known defendant for about ten years, mainly through defendant’s father’s barbecue business. At trial, Matthews first denied that he had bought drugs from defendant on other occasions; however, after further questioning by the state, Matthews admitted that he lied and had regularly purchased drugs from defendant.

Telephone conversations between Matthews and defendant setting up the buys were recorded. Matthews made three trips to defendant’s home: April 18, 2002; April 26, 2002; and May 3, 2002. On each occasion, Matthews first met with the deputies from the DeSoto Parish Sheriffs 12Office who put a small video camera in Matthews’ pickup truck. The vehicle was also wired for sound. Each time, deputies searched Matthews and his truck for drugs or money. Before each buy, Matthews was given $100. He then drove approximately four miles to defendant’s house. Matthews was followed by deputy sheriffs in unmarked vehicles, although not to within eyesight of defendant’s home.

With each drug buy, Matthews would pull into the driveway of defendant’s home and defendant would come to Matthews’ truck. In each transaction, Matthews would purchase four or five rocks of crack cocaine for $100. After each drug buy, Matthews would drive a short distance to a graveyard, where the deputies were waiting for him. He then turned over the cocaine to the officers. Each time the camera showed an exchange take place but only on the last transaction (May 3, 2002) did the tape show defendant’s face.

The case was eventually set for trial on February 24, 2003. In early February 2003, Matthews went to the office of Assistant District Attorney Richard Johnson. What was actually said at this meeting is disputed in part. Johnson testified that Matthews told him that he did not want to testify against defendant because “they” had threatened to burn his house down and blow his head off. Matthews admitted to going to see ADA Johnson; however, he denied telling Johnson that he had been threatened by defendant or anyone else. On further questioning, Matthews stated that he had heard rumors that someone was threatening him. Matthews admitted that he told the ADA that he did not want to testify. Matthews further |3admitted that defendant had come to visit him at his home at least once prior to trial and had called at least twice to find out whether Matthews was going to testify. Matthews stated that he told defendant that he wasn’t planning to testify.

After meeting with Matthews, Johnson sought and obtained a “Motion and Order For Arrest of Material Witness Pursuant to R.S. 15:257.” The motion, filed on February 13, 2002, asked that Matthews be held under a material witness bond. The trial court, however, wrote that Matthews be held until “further orders of the court.” Matthews was placed into jail as a material witness until his testimony at trial eleven days later. While in jail, Matthews was interviewed several times by both the district attorney’s office and defendant’s attorney.

Prior to trial, defendant did not file any other motions or objections relating to Matthews being held in jail without bond as a material witness. Likewise, during trial, defendant did not object to the admissibility of Matthews’ testimony. The jury found defendant not guilty as to count one, but guilty on counts two and three.

Discussion

In his appeal, defendant has not asserted any trial errors, challenged the sufficiency of the evidence or raised the issue of excessiveness of his sentences. Instead, defendant’s three assignments of error all relate to the fact that prior to trial, the state sought and obtained an order to arrest the key witness in the case, Imri Matthews, and held him in jail for 11 days until defendant’s trial. According to defendant, this was prosecutorial J^misconduct such that he was deprived of a fair trial and due process. Defendant further argues that it was error for the trial court not to allow Matthews to post bond.

This court, in State v. McCarty, 463 So.2d 788, 790-91 (La.App. 2d Cir.1985), writ denied, 466 So.2d 1301 (La.1985), quoted the following language from Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935):

The [prosecuting attorney] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

In this case, defendant has argued that the state falsely detained Imri Matthews for the purpose of affecting defendant’s constitutional rights to due process and a fair trial. In State v. McCarty, supra, this court found that the prosecutor’s actions in having the jailer place a key witness in the same cell as defendant so that the two would “impeach themselves” was prosecu-torial misconduct.

Unlike the circumstances presented in State v. McCarty, supra, in the instant case, we find that the ADA’s actions in obtaining a material witness warrant for Imri Matthews was in accordance with law and was appropriately motivated.

|RLa. R.S 15:257 provides:

Whenever it shall appear, upon motion of the district attorney or upon motion of a defendant supported by his affidavit, that the testimony of any witness is essential to the prosecution or the defense, as the case may be, and that there are good grounds to fear that said witness may depart or be taken from the jurisdiction of the court, a judge, as defined in Article 931 of the Code of Criminal Procedure, shall issue a warrant for the arrest of the witness. The witness shall be arrested and held in the parish jail, or such other suitable place as shall be designated by the court, until he gives an appearance bond as provided for defendants when admitted to bail, or until his testimony shall have been given in the cause or dispensed with.

The motion prepared by ADA Johnson alleged that Imri Matthews had told him that he was refusing to testify truthfully against defendant and that “they” had threatened to burn down his house and blow his head off. The motion further asserted that it was a possibility that Matthews would depart the jurisdiction prior to defendant’s trial. The state alleged its fears that the threats would cause Matthews not to appear at trial. At the trial, ADA Johnson testified as to the truthfulness of these statements.

Matthews admitted at trial that he told ADA Johnson that he would not testify against defendant. Matthews further stated that he had heard rumors that “someone” would burn his house down or kill him if he testified. Matthews also testified that prior to trial he had several contacts with defendant in which he related to defendant that he would not testify against him. The only issue that ADA Johnson and Matthews differed on was whether Matthews had told Johnson about the rumors that someone would burn down his house or kill him if he testified. According to Matthews, he did not discuss these threats with Johnson.

| fiWhen a witness is detained as a result of allegations in an affidavit submitted to the trial court pursuant to La. R.S. 15:257 and the witness subsequently admits the facts alleged, the detention is not unlawful. Cooks v. Rodenbeck, 97-1389 (La.App. 3d Cir.04/29/98), 711 So.2d 444. There was no prosecutorial misconduct in the instant case.

We further note that regardless of the ADA’s motivation or, even if the warrant was wrongly obtained, it resulted in no harm. Defendant’s counsel used the detention of Matthews as an opportunity to interview the witness in preparation for trial. The trial transcript reflects that defense counsel conducted a strong cross-examination of Matthews, establishing repeatedly that the witness had lied under oath. In fact, after this cross-examination, the state was forced to have Matthews declared a hostile witness and to put on rebuttal evidence that Matthews had lied in defendant’s favor.

There is nothing in the transcript to support defendant’s claim that his ability to defend himself was adversely affected by Matthews’ detention before trial. But for a situation in which Matthews did not testify at all, his pretrial lockup was the “next best thing” and inured to defendant’s advantage. The transcript shows that Matthews was hostile to the state, not defendant.

Conclusion

For the above stated reasons, defendant’s convictions and sentences are AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, PEATROSS, DREW, MOORE, and LOLLEY, JJ.

Rehearing denied.


author: hPETERS, J. | -i COOKS, J., hWOODARD, J.,

text:
    Linda DRONET, Plaintiff-Appellant v. E-Z MART, Defendant-Appellee.
    No. 03-0212.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 23, 2003.

      Richard E. Wilson, Cox, Cox, Filo & Camel, Lake Charles, LA, for PlaintiffAp-pellant, Linda Dronet.
    Shannon Dartez, Hurlburt, Privat & Monrose, Lafayette, LA, for Defendant/Appellee, E-Z Mart.
    Court composed of Chief Judge NED E. DOUCET, Jr., SYLVIA R. COOKS, BILLIE COLOMBARO WOODARD, JIMMIE C. PETERS, and BILLY H. EZELL, Judges.
   hPETERS, J.

In this workers’ compensation case, Linda Dronet appeals a judgment denying her claim for indemnity benefits on the basis that the claim had prescribed. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.

DISCUSSION OF THE RECORD

Linda Dronet began employment with E-Z Mart as a manager on June 1, 1996. Allegedly, she injured her hands during the course of her employment on September 14, 1998. Thereafter, she was diagnosed with carpal tunnel syndrome in both hands and reflex sympathetic dystrophy of the right hand. Ms. Dronet’s injury necessitated medical treatment, including two surgeries on her right hand. E-Z Mart paid medical benefits and indemnity benefits in connection with the carpal tunnel syndrome.

Ms. Dronet returned to work at E-Z Mart in July of 1999, resulting in E-Z Mart discontinuing payment of indemnity benefits on August 3,1999. Still, Ms. Dro-net continued to undergo regular medical examinations and treatment, and E-Z Mart continued to pay her medical expenses.

Ms. Dronet claims that in August of 2001 she reinjured her right hand in the course of her employment with E-Z Mart while “mopping the floors” with an “industrial-sized mop.” Following this alleged reinjury, Ms. Dronet continued to maintain her monthly appointments with her orthopedic surgeon. However, although Ms. Dronet testified that she did inform the doctor that she reinjured her hand, the doctor did not record the new work accident. The doctor did, however, limit Ms. Dronet to part-time work on August 27, 2001. Ms. Dronet discontinued working on January 21, 2002, but E-Z Mart refused to pay indemnity benefits.

On February 18, 2002, Ms. Dronet filed the instant 1008 claim for indemnity | ¡^benefits, penalties, and attorney fees, but she alleged September 14, 1998, as the date of her injury. E-Z Mart filed a peremptory exception of prescription. The WCJ held a hearing on only the exception of prescription and thereafter granted the exception. Ms. Dronet now appeals.

OPINION

Louisiana Revised Statutes 23:1209(A) provides in part:

In case of personal injury ... all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4).

(Footnote omitted.)

Ms. Dronet appeals the judgment of prescription on the basis that she sustained a new injury in August 2001 from a work accident, although the new injury was an aggravation of her preexisting injury. Thus, she contends that because she sustained a new injury, her claim is not subject to an exception of prescription based on the September 1998 injury. E-Z Mart contends that Ms. Dronet’s “current medical conditions are clearly a continuation of the conditions diagnosed back in 1998 according to the medical evidence.”

Initially, even assuming that E-Z Mart is correct in its assertion that Ms. Dronet’s current medical conditions are a continuation of her 1998 injury, we find that as a matter of law Ms. Dronet’s claim for supplemental earnings benefits has not 1 ¡¡prescribed. Specifically, as set forth above, a claim for benefits payable pursuant to La.R.S. 23:1221(3), i.e., supplemental earnings benefits, is not barred until the expiration of three years from the time the last payment was made for temporary total disability benefits, permanent total disability benefits, supplemental earnings benefits, or permanent partial disability benefits. See La.R.S. 23:1209(A). In the instant case, because E-Z Mart paid temporary total disability benefits for the 1998 injury until August 3, 1999, Ms. Dronet’s claim filed on February 18, 2002, or two years and six and one-half months after the last payment of indemnity benefits, is timely for the payment of supplemental earnings benefits arising out of the original 1998 injury. See generally Dufrene v. Video Co-Op, 02-1147 (La.4/9/03), 843 So.2d 1066. However, any claim for temporary total disability benefits arising out of the 1998 injury is not timely because more than one year has elapsed since the making of the last payment of indemnity benefits for the 1998 injury. Accordingly, we reverse the grant of the exception of prescription as to any claim for supplemental earnings benefits.

Nevertheless, Ms. Dronet may maintain a claim for temporary total disability benefits if she proves that she sustained an aggravation of her preexisting injury in August of 2001 through a work accident. As a matter of law, “[preexisting disease or infirmity of the employee does not disqualify a claim if the work-injury aggravated, accelerated, or combined with the disease or infirmity to produce ... disability for which compensation is claimed.” Walton v. Normandy Village Homes Ass'n, Inc., 475 So.2d 320, 324 (La.1985). Still, the employee has the burden of establishing a work-related accident. Bruno v. Harbert Int’l Inc., 593 So.2d 357 (La.1992). “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. at 361. Corroboration of the employee’s testimony may be provided by the testimony of fellow workers, spouses or friends as well as by medical evidence. Id. In determining whether the employee has discharged her burden of proof, the WCJ should accept as true a witness’s uncontradicted testimony, even though the witness is a party, unless there are circumstances that east suspicion on the reliability of this testimony. Id. The WCJ’s determinations as to whether the employee’s testimony is credible and whether she has discharged her burden of proof are factual determinations which we may not disturb on review unless they are clearly wrong. Id.

According to Ms. Dronet, she reinjured her right hand while she was “mopping the floors” with an “industrial-sized mop.” She described the incident as follows: “[I]t looked like just a bolt of lightening went through my hand, and it hurted [sic] me, and ever since then the hand is progressively getting worse.... It is not getting any better.” There is no testimony or medical evidence to corroborate Ms. Dro-net’s testimony. In fact, at the time of the alleged new injury in August of 2001, Ms. Dronet was already under the monthly care of Dr. R. Dale Bernauer, a Lake Charles, Louisiana orthopedic surgeon, in connection with the preexisting injury. While Ms. Dronet testified that she did inform Dr. Bernauer of her new injury, he did not record |sany new injury. Yet, following the monthly exam of August 27, 2001, the doctor did record that Ms. Dro-net stated that she was working full time. Moreover, within the months preceding the alleged new injury, Dr. Bernauer reported that Ms. Dronet continued to have pain in her hand and that her hand was tender and reddened. Further, just two months prior to the alleged new injury, Ms. Dronet also saw a Dr. Ronald S. Ko-ber, “complaining of severe pain in [her] right hand,” and the doctor suggested a stellate ganglion block.

Apparently, the WCJ found that Ms. Dronet failed to prove she sustained a new injury in August of 2001. We find that the foregoing evidence and lack of corroboration provided the WCJ with a reasonable basis for her factual findings. We do note that Dr. Bernauer stated in a letter to Ms. Dronet’s attorney dated July 25, 2002, that he was of the opinion that Ms. Dronet’s “employment as a cashier did aggravate her condition.” However, pursuant to La. R.S. 23:1021(1), an accident is defined in part as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently ... and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” (Emphasis added.) The WCJ could have concluded that Dr. Ber-nauer’s opinion in that regard established only that Ms. Dronet’s condition was a gradual deterioration resulting from her job duties as a cashier, and not that Ms. Dronet sustained an aggravation of her condition from an actual, identifiable, precipitous event.

Further, while Dr. Bernauer did reduce Ms. Dronet to part-time work following the alleged new injury, he did so without giving any reason for this action other than the fact that Ms. Dronet informed him at that time that she was working full time. | ^Additionally, when Dr. Bernauer gave Ms. Dronet a full work excuse some five months after the alleged work accident, he did not give any reason for doing so other than that Ms. Dronet was having some problems at work. Without more, we do not find that the WCJ was clearly wrong in rejecting Ms. Dronet’s assertions of a new injury. While we might have weighed the evidence differently, we cannot overturn the WCJ’s factual findings unless they are clearly wrong. Thus, we affirm the WCJ’s grant of the exception of prescription as it relates to temporary total disability benefits.

At the hearing on the exception, the WCJ stated: “This matter comes before the Court on an Exception of Prescription filed on behalf of E-Z Mart.” Because the case was not first submitted to the WCJ on the merits of Ms. Dronet’s claim, we cannot render judgment on Ms. Dronet’s entitlement to supplemental earnings benefits other than to determine that any claim in that regard has not prescribed. See Uniform Rules- — Courts of Appeal, Rule 1-3 (providing that “Courts of Appeal will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise”). Thus, we remand this case for proceedings on the merits of Ms. Dronet’s entitlement to supplemental earnings benefits, penalties, and attorney fees.

DISPOSITION

For the foregoing reasons, we reverse the WCJ’s grant of the exception of prescription as to any claim Ms. Dronet has for supplemental earnings benefits. We affirm the judgment in all other respects and remand this case for further proceedings on the issues of supplemental earnings benefits, penalties, and attorney fees. We assess fifty percent of the costs of this appeal to Linda Dronet and fifty percent to E-Z|7Mart.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

COOKS, J., concurs in part and dissents in part and assigns written reasons.

WOODARD, J., dissents and assigns written reasons.

| -i COOKS, J.,

Dissenting in part and Concurring in part.

I would reverse that portion of the judgment below granting the exception of prescription as it relates to temporary total disability. I am satisfied the record sufficiently establishes the claimant sustained an aggravation of her pre-existing work related condition. I concur in that position of this court’s opinion finding the claimant’s SEB claim has not prescribed. I do not feel as constrained as the majority in proceeding to rule on the merits of the claimant’s SEB claim.

hWOODARD, J.,

dissenting.

I must respectfully disagree with the majority’s opinion because there is nothing in the record or in the briefs, submitted on appeal, which suggests that these parties sought a determination regarding Ms. Dronet’s right to receive SEB benefits; thus, prescription, as it relates to SEBs, is not before us. As such, any holding on this issue is inappropriate and unnecessary.

On the other hand, the parties, clearly, did expect us to reconcile the issue of whether Ms. Dronet’s claim for TTDs had prescribed. The majority opinion disposed of her claim for TTDs by concluding that the evidence presented could support a finding that her reinjury was nothing more than a gradual deterioration resulting from her job duties as a cashier and not an aggravation of her condition from an actual, identifiable, precipitous event.

However, the evidence is contrary to the majority’s finding, which is based, solely, on speculation. Ms. Dronet’s unrefuted testimony, describing the August 2001 accident and her report to her superiors; her effort to see Dr. Bernauer on the day this incident occurred; her untainted credibility; and the medical evidence, indicating an aggravation of her preexisting injuries, sufficiently demonstrate that she met her | ¡¡.burden of proving the existence of a second accident and reinjury; thus, beginning a new prescriptive period.

Injury

In August of 2001, Ms. Dronet informed her employer that she reinjured her right hand while “mopping the floors” with an “industrial sized mop” at the E-Z Mart store she managed. She emphasized the awkward nature of the mop by stating: “I’m not talking about a mop we mop our house with. I am talking about an industrial-sized mop, and they’re very hard to handle.”

According to her testimony, the “extreme pain” she experienced the day of the subject incident was markedly different from the pain she had been living with for years. She gave the following testimony:

I have had pain since I have had my surgeries. But that day that I hurt my hand with that mop ... it looked like just a bolt of lightening went through my hand, and it hurted me, and ever since then the hand is progressively getting worse, you know. It is not getting any better.

(Emphasis added.) When Ms. Dronet was asked whether her hand had gotten any better after her two surgeries, on November 5, 1998 and June 10, 1999, she responded:

Before I had my surgery [my hands] hurted [sic] me. They hurted [sic] me so bad I couldn’t hardly do anything. Then after I had ... the two surgeries ... I went back to work and I was able to perform my job better than I was before I had my surgeries. And then after August [of 2001] ... I just steady started declining. I mean, it got to the point where I couldn’t do anything.

In addition, she was asked if she told anybody about her injury on the day of the second accident, which was unwitnessed. She answered: “Yes, my assistant manager, and I contacted my supervisor.” Ms. Dronet remembered telling them: “I hurt-ed [sic] my hand, you know. It was hurting, and it went up into where the incision was, and it went up into the arm and stuff.”

|a“In evaluating the evidence, the uncon-tradicted testimony of a witness should be accepted as true, even if she is a party, in the absence of circumstances casting suspicion on the reliability of her testimony.” Co-workers, spouses, friends, or medical evidence may provide corroboration of the claimant’s testimony.

Proof of an accident must be by preponderance of the evidence, and a claimant’s testimony alone may be sufficient to discharge this burden, provided two elements are satisfied. First, no other evidence must discredit or cast serious doubt upon the claimant’s version of the incident, and second, his testimony must be corroborated by circumstances following the alleged incident.

Mrs. Dronet’s employer and insurer did not refute her testimony that she suffered a second “accident” and reinju-ry or her recollection that she reported this incident to her assistant manager and supervisor when it happened. Instead, they decided not to call Jeanne Holi-field, her supervisor, as a witness at trial, even though they initially indicated that they intended to do so.

Another important piece of evidence supporting Ms. Dronet’s contention of re-injury is that soon after the accident and before her regularly scheduled appointments, Ms. Dronet “called for an appointment” with Dr. Bernauer, but he “couldn’t see [her] before [her] scheduled appointment.” She further recalled: “I told [his office] that I had injured my hand again because of the work that I do.” (Emphasis added.)

Fireman’s Fund Insurance, E-Z Mart, and the majority highlight that Dr. Ber-nauer’s medical records from this examination, on August 27, 2001, do not mention any new work-related event that aggravated her injury. They believe this is a significant circumstance that casts suspicion on her testimony. However, there could be many reasons for this lack of a reference to Ms. Dronet’s alleged accident. For example, it could have simply been an oversight or the doctor might not have |4thought about it as being important since his concern was a medical, rather than a legal one. Thus, the inference the majority garnered, by the absence from the medical records of a notation of reinjury, that no aggravation of her injury took place, is clearly unfounded.

Importantly, the record viewed as a whole corroborates Ms. Dronet’s testimony, and what one should conclude from her August 27th visit, the first visit following her reinjury, is that Dr. Bernauer’s dimin-ishment of her work status must have been because of a substantial change in her functionality. Specifically, he ordered a “work excuse,” diminishing the number of hours she could work from forty-eight to twenty per week.

Moreover, further indicia of reinjury is that all of her physicians took escalated actions after this visit, in response to her changed condition.

On November 8, 2001, approximately two months after the subject accident, Dr. Rand Metoyer examined Ms. Dronet. He concluded that she was suffering from “bilateral hand pain” and “major depression.” His report gives some insight into her credibility and the extent of her disability after reinjury:

[Ms. Dronet] appears to be a stoic individual, however, when questioned about suicidal thoughts she began to break down and look very tearful. She has a very hard time dealing with the pain. She states that she cannot commit suicide due to her family.

A few days later, on November 19, 2001, Dr. Bernauer examined her at her regularly scheduled appointment, upon which, he determined that she was in need of “pain management.”

On December 6, 2001, Dr. Metoyer performed a right stellate ganglion block to relieve her “chronic right wrist and hand pain.”

Nevertheless, on January 21, 2002, she told Dr. Bernauer that “the pain remained.” Responding, he noted: “She is having some problems at work. She does do paper work and work with a computer.... At this time, I am giving the patient a work excuse.” Therefore, he recommended that she no longer work as a manager for E-Z Mart.

Dr. Bernauer further corroborated her testimony when he acknowledged: “It is my opinion that [Ms. Dronet’s] employment as a cashier did aggravate her condition.” (Emphasis added.)

1 ^Therefore, a significant number of references in the record and in the medical notations clearly supports that this second accident aggravated, accelerated, or combined with Ms. Dronet’s preexisting infirmities and created a reasonable possibility of a causal connection between the accident and [her] present condition.

Accordingly, the majority’s affirmation of the WCJ’s determination that Ms. Dro-net failed to prove, by a preponderance of the evidence, the occurrence of a sudden identifiable work-related event in August of 2001 is manifestly erroneous.

PRESCRIPTION

Ms. Dronet filed the subject claim on February 15, 2002. On its face, it states that the date of her injury was September 14, 1998. She received her last TTD payment in July of 1999. Thus, any claim for compensation benefits, arising from her injury of September 14, 1998, would have been filed well past a year from the receipt of her last compensation payment for TTD.

“Generally, the party pleading prescription on a workers’ compensation claim bears the burden of proof on the issue.” However, where the claimant’s petition has clearly prescribed on its face, the burden shifts to the claimant to prove that the prescriptive period was interrupted or suspended.

Ms. Dronet has not asserted any circumstances that could have interrupted or suspended prescription on a claim to recover compensation benefits for her September 14, 1998 injury. Nevertheless, the WCJ erred in ruling that her actual claim had prescribed, since the unrefuted evidence shows that it arose from a separate sudden identifiable work-related event that occurred in August of 2001.

Although September 14, 1998 is listed on Ms. Dronet’s claim form as the date of her second injury, the facts establish that, while she still suffered pain from the original injury, her condition had stabilized until she reinjured her right hand in August of 2001. Immediately afterwards, she felt a different and more “extreme pain,” evidencing that this reinjury was due to an identifiable incident — mopping with | (¡an industrial mop. Moreover, her attorney acknowledged that he inadvertently put the date of her first injury on the claim form.

This work-related accident established a new prescriptive period for receipt of TTDs.

Prescriptive statutes are to be construed in favor of maintaining rather than barring actions. Consistent with that precept, Louisiana Code of Civil Procedure Article 1153 should be applied liberally and without undue restriction by technical rules. This is especially true in workers’ compensation cases.

“The fundamental purpose of prescription statutes is only to afford a defendant economic and psychological security if no claim is made timely, and to protect [her] from stale claims and from the loss of non-preservation of relevant proof.”

These statutes protect a party against lack of notification of a formal claim within the prescriptive period. Therefore, if the original timely filed pleading gives a party actual notice that the opponent is making a formal claim based on a particular factual situation, no essential purpose of the prescriptive statutes is violated.

Ms. Dronet’s claim for TTDs satisfied this legal requirement, thus, it has not prescribed.

Temporary Total Disability Benefits

An employee, seeking TTDs has the burden of proving by clear and convincing evidence, unaided by any presumption of disability, that she is physically incapable of engaging in any type of employment. “To prove a matter by clear and convincing [7evidence means to demonstrate that the existence of a disputed fact is highly probable; that is, much more probable than its nonexistence.”

The objective medical evidence overwhelmingly supports Ms. Dronet’s unrefut-ed testimony that she feels “extreme pain” in her hand. In addition, there is no evidence suggesting she exaggerated the severity of her symptoms.

Clearly, after her January 21, 2002 examination, Dr. Bernauer believed her disability to be so severe that it rendered her incapable of working as a manager for EZ Mart. There is no reason to doubt this assessment of her condition. Therefore, Ms. Dronet proved by clear and convincing evidence that she is unable to engage in substantial employment.

Penalties and Attorney’s Fees

Ms. Dronet prayed for statutory penalties and attorney’s fees for the Appellees’ failure to pay TTDs. However, when they initially denied benefits, it was reasonable for them to believe that her complaints in August of 2001 were neither new nor an aggravation of a preexisting injury. As such, they were reasonable in controverting her claim for TTDs. Therefore, I would find that Ms. Dronet is not entitled to penalties nor attorney’s fees.

      . Ms. Dronet did not specify the type of indemnity benefits she sought.

      . Even though Ms. Dronet's 1008 form specifies the date of injury as being September 14, 1998, her attorney explained at trial that the date was “just a typo.” We find that the pleadings were expanded in any event by the admission of evidence without objection regarding the alleged new injury of August 2001. See La.Code Civ.P. art. 1154: "When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleading.”

      . See Tate v. Cabot Corp., 01-1652 (La.App. 3 Cir. 7/3/02), 824 So.2d 456, writ denied, 02-2150 (La. 11/22/02), 829 So.2d 1044.

      . Howell v. Serv. Merch. Co., 95-79, p. 5 (La. App. 3 Cir. 8/9/95) 663 So.2d 96, 98 (citing Hopes v. Domtar Indus., 627 So.2d 676 (La. App. 3 Cir. 1993)).

      . Tate, 824 So.2d at 463 (citing Bruno v. Harbert Intern. Inc., 593 So.2d 357 (La.1992); Honeycutt v. Elbert Walker Constr., 01-1291 (La.App. 3 Cir. 2/6/02), 815 So.2d 1011).

      . Id. at 463.

      . See Id.

      . Duplechain v. DOTD, 02-356, p. 3 (La.App. 3 Cir. 10/2/02), 827 So.2d 567, 568, writ denied, 02-2674 (La. 1/31/03), 836 So.2d 68 (citing Richardson v. Tyson Foods, 01-427 (La. App. 3 Cir. 10/3/01), 796 So.2d 827).

        . Richardson v. Tyson Foods, 01-427 (La.App. 3 Cir. 10/3/01), 796 So.2d 827.

      . Baker v. Conagra Broiler Co., 93-1230, pp. 7-8 (La.App. 3 Cir. 5/4/94), 640 So.2d 494, 497, writ denied, 94-1435 (La.9/23/94), 642 So.2d 1289 (citations omitted).

      . Id. at 497.

      . Id.

      . Id.

      . Rideaux v. Franklin Nursing Home, 95-240 (La.App. 3 Cir. 11/22/95), 664 So.2d 750, writ denied, 95-3093 (La.2/16/96), 667 So.2d 1058; La.R.S. 23:1221(1)(c).

      . Id. at 754.

      .La.R.S. 23:1201.