author: |,AMY, Judge.

text:
    Richard McNABB v. LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY and Dr. Clinton E. Hart.
    Nos. CW03-0565, CA03-0596.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2003.

      John E. Bergstedt, John Gregory Bergstedt, Lake Charles, LA, for Defendants/Respondents: Louisiana Medical Mutual Insurance Company Dr. Clinton E. Hart.
    Michael Keith Prudhomme, Thomas Patrick LeBlanc, Lundy & Davis, Lake Charles, LA, for Intervenor/Appellant/Ap-plicant: Louisiana Patients’ Compensation Fund.
    Michael H. Schwartzberg, Vamvoras & Schwartzberg, Lake Charles, LA, for PlaintiffAppellee/Respondent: Richard McNabb.
    Court composed of NED E. DOUCET, JR., Chief Judge, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   |,AMY, Judge.

The plaintiff filed suit alleging injury following a procedure to remove a pterygi-um on his right eye. A jury found in favor of the plaintiff, awarding $300,000 in general damages. The Louisiana Patients’ Compensation Fund intervened and appealed the judgment, advancing arguments regarding the substance of the verdict. Subsequently, the plaintiff and the defendant physician entered into a settlement for the physician’s statutory limit under the Medical Malpractice Act. A petition for approval of the settlement was filed with the trial court. The settlement was approved. In a writ application to this court, the LPCF asserted that the trial court was without jurisdiction to consider a post-appeal petition for approval of settlement. The writ application was consolidated with the merits of the LPCF’s appeal. Subsequently, the plaintiff filed an answer to the appeal, seeking damages for frivolous appeal. This opinion addresses each of these filings. For the following reasons, the judgment approving of the post-trial, post-appeal settlement is affirmed in part and vacated in part. Accordingly, the writ is granted in part and made peremptory. The trial court’s judgment on the merits of the case, the subject of the appeal, is affirmed. The motion to dismiss the appeal is denied, as is the request for damages for frivolous appeal.

Factual and Procedural Background

The multiple filings addressed in this opinion relate to damages allegedly stemming from a 1998 eye surgery. The record indicates that, in 1997, the plaintiff, Richard McNabb was diagnosed as having a pterygium on his right eye by Dr. Kenneth Harper, an ophthalmologist. The record reveals that a pterygium is a growth on the outside layer of the eye. Although the pterygium may start as a small growth in the corner of the eye, it may slowly grow over the cornea of the eye. Dr. Harper | ^explained that the pter-ygium was more than likely caused by a previous eye injury and was reaching the point in its growth where it interfered with the vision in the plaintiffs right eye. He described the removal procedure as elective in nature. Mr. McNabb twice scheduled to have the pterygium removed, but never had the procedure completed. Dr. Harper testified that he was under the impression that the plaintiff was cautious or apprehensive about the surgery.

On September 5, 1998, the plaintiff reported to Dr. Clinton Hart, an ophthalmologist. Dr. Hart recorded the plaintiffs history of having had a previous eye injury and also diagnosed the plaintiff as having a pterygium on his right eye. He recommended that the pterygium be removed, scheduling the procedure for November 23rd. Dr. Hart explained that his routine in such situations was to explain to the patient the risks and comparative risks associated with the procedure. According to Mr. McNabb, Dr. Hart told him that the procedure was a simple operation. He denied that Dr. Hart informed him of any complications or that he was at an increased risk from the surgery due to a previous injury.

The procedure was performed on November 23rd. Following the surgery, Mr. McNabb reported to Dr. Hart’s office for post-operative visits on November 24th and 28th as well as on December 3rd. Dr. Hart’s notes from these visits do not reflect any observations regarding concerns over the healing process.

Mr. McNabb explained that, on the morning of December 8th, he was eating breakfast when he heard a “pop” or “ping” from his eye. He stated that he saw colors of the rainbow and that, later in the day, he contacted Dr. Hart’s office to report the event. The plaintiff explained that his message to Dr. Hart was not returned. He waited until his previously scheduled appointment on December 11th to report to Dr. [ ¡¡Hart. Mr. McNabb testified that, on that date, he told Dr. Hart that he could not see with the eye and that upon examination of the eye, Dr. Hart became pale and left the room.

According to Dr. Hart, the exam revealed that Mr. McNabb had suffered a “corneal melt.” This process is a thinning of the eye tissues, which, in this case, resulted in a perforation of the cornea. Following the discovery, Dr. Hart sought the assistance of his son, Dr. William Hart, an ophthalmologist who practiced with his father. Dr. William Hart explained that although he was initially called in to observe the condition, he suggested that he perform a conjunctival patch graft to protect the eye. Mr. McNabb was then referred to Dr. Marshall Bowes Hamill, a corneal specialist at Baylor College of Medicine in Houston.

Upon presentation in Houston the following day, Dr. Hamill performed a patch graft, which was initially successful in sealing the hole left by the corneal perforation. A cataract subsequently formed, however, prompting Dr. Hamill to perform a second surgery to try to remove the cataract on March 31, 1999. By January 30, 2000, Mr. McNabb’s patch graft had become opaque hindering his vision and prompting him to elect a corneal transplant. Dr. Hamill performed the transplant in February 2000. Dr. Hamill described Mr. McNabb as having performed reasonably well during the year of 2000. However, by 2001, Mr. McNabb’s vision began deteriorating and, at the time of his August 2001 deposition, Dr. Hamill described Mr. McNabb’s vision in his right eye to be legally blind if left uncorrected. He was hopeful that Mr. McNabb could be fitted with a contact lens in the future to improve his vision.

At Mr. McNabb’s request, a Medical Review Panel was convened to consider his treatment by Dr. Clinton Hart. He asserted a number of breaches of the standard |4of care. In an opinion joined by two of its members, the Medical Review Panel concluded that: “The evidence supports the conclusion that the defendant, Clinton E. Hart, failed to comply with the appropriate standard of care as to the issue of informed consent detailed herein.” In particular, the two physicians concluded that there was lack of evidence indicating that a written, informed consent was completed by Mr. McNabb prior to the ptery-gium surgery. All three of the physicians concluded that: “It appears from the records provided that the excision of the pter-ygium and the application of the strontium 90 by Dr. Hart were done appropriately, and the post-operative complication of corneal perforation was recognized and dealt with in an appropriate manner.”

The instant matter was instituted by a petition filed on April 24, 2001. Dr. Clinton Hart and his insurer, LAMMICO, were named as defendants. The petition alleged negligence in the failure to obtain informed consent, improper surgical technique or over-radiation of the eye, and substandard post-operative procedures prohibiting post-surgical intervention to decrease damage from the corneal thinning. The matter proceeded to trial. Pri- or to submission to the jury, the trial court entered a directed verdict as to Dr. Hart’s failure to disclose risks associated with the pterygium surgery. The jury additionally concluded that Dr. Hart breached the standard of care in his post-operative treatment of Mr. McNabb. Both breaches were found to have caused injury. The jury further found a breach of the standard of care in the surgical procedure, but concluded that this was not a cause of injury. The jury awarded damages in the amount of $300,000.

On November 15, 2002, the Louisiana Patients’ Compensation Fund intervened in the matter and, thereafter, filed a petition for appeal. The suspensive appeal was |,«¡granted on January 6, 2003. Subsequently, the plaintiff filed a Petition for Approval of Agreed Settlement with the trial court. The plaintiff informed the trial court that he and Dr. Hart had reached a settlement whereby Dr. Hart and LAM-MICO would pay to the plaintiff $115,000 plus court costs. In exchange, the plaintiff would dismiss the suit against them with prejudice. Dr. Hart was to remain in the suit as a nominal defendant for purposes of the Medical Malpractice Act. The LPCF asserted an exception to the petition for approval, contending that the trial court lacked jurisdiction to consider the petition for approval of settlement as it was preceded by an order of suspensive appeal. Furthermore, the LPCF argued that a post-appeal settlement between the parties must be treated as a partial satisfaction of judgment and not as a settlement under La.R.S. 40:1299.44(0(1) which would establish liability on the part of Dr. Hart. Following a hearing, the trial court approved the settlement and denied the exception finding that jurisdiction existed and that liability was established.

The LPCF filed an application for supervisory writ of review of the approval of settlement by this court. The matter was consolidated with the previously filed appeal on the merits. The plaintiff subsequently filed an answer to the LPCF’s appeal of the merits of the judgment, asserting entitlement to damages for frivolous appeal. |fiThe plaintiff also filed a motion seeking dismissal of that portion of the appeal relating to liability issues as, the plaintiff contends, the settlement approval precludes litigation of liability. This opinion addresses each of these filings.

On the merits, the LPCF assigns the following as error:

1)The trial court erred in entering a directed verdict in favor of plaintiff concluding there existed a material risk of the pterygium surgery unknown to plaintiff and that Dr. Hart failed to inform plaintiff of that material risk, as sufficient evidence was presented on these issues to permit reasonable jurors to reach differing conclusions.
2) Assuming a material risk of the pter-ygium surgery unknown to plaintiff was not disclosed by Dr. Hart, the jury erred in finding causation on plaintiff’s claim of informed consent, in light of the clear and overwhelming evidence that plaintiff would have undergone the surgery notwithstanding the disclosure by Dr. Hart of all material risks.
3) The trial court committed reversible error in redacting the medical review panel opinion and admitting only a portion of the opinion into evidence in contravention of the express provisions of the Medical Malpractice Act, La.R.S. 40:1299.47(G)-(H).
4) The trial court committed reversible error by improperly commenting upon the evidence and thereby depriving Dr. Hart and LAMMICO of a fair trial on plaintiffs claim that Dr. Hart’s post-operative care fell below the applicable standard of care.

Discussion

Writ Application

Postt-Appeal Approval of Settlement

We first address the LPCF’s writ application regarding the settlement as its determination affects the treatment of the appeal on the merits. Advancing several assignments of error in this writ application, the LPCF essentially questions the trial court’s approval of a post-judgment, post-appeal settlement of Dr. Hart’s $100,000 statutory responsibility. The LPCF contends that, in the least, the trial court was [7without jurisdiction to approve the settlement within the confines of the Medical Malpractice Act insofar as it would establish the plaintiffs liability. The plaintiff, however, contends that the statute conveys no time limit on approval. If approved, the plaintiff asserts, the defendant health care provider’s liability is established for purposes of La.R.S. 40:1299.44(0(5).

La.R.S. 40:1299.44(C) provides, in pertinent part:

C. If the insurer of a health care provider or a self-insured health care provider has agreed to settle its liability on a claim against its insured and claimant is demanding an amount in excess thereof from the patient’s compensation fund for a complete and final release, then the following procedure must be followed:
(1) A petition shall be filed by the claimant with the court in which the action is pending against the health care provider, if none is pending in the parish where plaintiff or defendant is domiciled seeking (a) approval of an agreed settlement, if any, and/or (b) demanding payment of damages from the patient’s compensation fund.
(4) As soon as practicable after the petition is filed in the court the judge shall fix the date on which the petition seeking approval of the agreed settlement and/or demanding payment of damages from the fund shall be heard, and shall notify the claimant, the insurer of the health care provider or the self-insured health care provider as the case may be, and the board thereof as provided by law.
(5) At the hearing the board, the claimant, and the insurer of the health care provider or the self-insured health care provider as the case may be, and the claimant cannot agree on the amount, if any, to be paid out of the patient’s compensation fund, then the court shall determine the amount of claimant’s damages, if any, in excess of the amount already paid by the insurer of the health care provider. The court shall determine the amount for which the fund is liable and render a finding and judgment accordingly. In approving a settlement or determining the amount, if any, to be paid from the patient’s compensation fund, the court shall consider the liability of the health care provider as admitted and established where the insurer has paid its policy limit of one hundred thousand dollars, or where the self-insured health care provider has paid one hundred thousand dollars.

|/The question at issue before the court in this writ application is whether the post-trial and post-appeal approval of the settlement under the above provision was appropriate. The LPCF asserts both that the trial court was divested of jurisdiction to approve of the settlement after the order of appeal and that application of the presumption of liability described in La.R.S. 40:1299.44(0) constitutes a substantive amendment of the judgment.

La.Code Civ.P. art.2088 provides:

The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal and the timely filing of the appeal bond, in the case of a substantive appeal or on the granting of the order of appeal, in the case of a devolutive appeal. Thereafter, the trial court has jurisdiction in the case only over those matters not reviewable under the appeal, including the right to:
(1) Allow the taking of a deposition, as provided in Article 1433;
(2) Extend the return day of the appeal, as provided in Article 2125;
(3) Make, or permit the making of, a written narrative of the facts of the case, as provided in Article 2131;
(4) Correct any misstatement, irregularity, informality, or omission of the trial record, as provided in Article 2132;
(5) Test the solvency of the surety on the appeal bond as of the date of its filing or subsequently, consider objections to the form, substance, and sufficiency of the appeal bond, and permit the curing thereof, as provided in Articles 5123, 5124, and 5126;
(6) Grant an appeal to another party;
(7) Execute or give effect to the judgment when its execution or effect is not suspended by the appeal;
la(8) Enter orders permitting the deposit of sums of money within the meaning of Article 4658 of this Code;
(9) Impose the penalties provided by Article 2126, or dismiss the appeal, when the appellant fails to timely pay the estimated costs or the difference between the estimated costs and the actual costs of the appeal; or
(10) Set and tax costs and expert witness fees.

We observe that much of this issue as argued by the LPCF was resolved by the Louisiana Supreme Court in Koslowski v. Sanchez, 576 So.2d 470 (La.1991), which also involved a settlement post-trial. The supreme court explained:

Liability under the Medical Malpractice Act is based on the initial $100,000 paid by the health care provider or its insurer, pursuant to judgment, settlement, or arbitration. When the insurer has admitted liability up to the statutory maximum, the liability of the health care provider is established, and the only remaining issue is the damages, if any, owed by the patient’s compensation fund. The fund cannot contest liability when there is a binding settlement for $100,000 by the health care provider, either before or after trial.
The court of appeal erred in holding that the fund could contest liability following a post trial settlement by the insurer of the health care provider for $100,000.

Id. at 474. Although a portion of Koslowski was later overruled by Russo v. Vasquez, 94-2407 (La.1/17/95), 648 So.2d 879, the portion regarding the question of whether a post-trial settlement established liability was not at issue in the subsequent case. Accordingly, it remains applicable law. See also Bijou v. Alton Ochsner Med. Found., 95-3074, p. 5 (La.9/5/96), 679 So.2d 893, p. 896 (wherein the supreme court again stated that “the Fund cannot contest liability when there is a binding settlement for $100,000 by the health care provider, either before or after trial.”) But see Richardson v. O’Byrne, 00-2202 (La.App. 4 Cir. 10/16/02), 830 So.2d 1013, writ denied, 02-2771 (La.1/24/03), 836 So.2d 49; Dawes v. Kinnett, 99-3157 (La.App. 4 Cir. 1/17/01), 779 So.2d 978. However, what is novel about this case is that the Imsettlement is not merely post-trial, but post-appeal. It is upon this final consideration that the present case turns.

The suspensive appeal related only to the judgment insofar as it involved the intervenor, the LPCF. Accordingly, satisfaction of the judgment with regard to Dr. Hart’s $100,000 responsibility under the judgment was certainly within the trial court’s jurisdiction. According to the terms of La.Code Civ.P. art.2088, however, the trial court lacked jurisdiction to consider “all matters in the case reviewable under the appeal.” The issue of liability in this case is such an issue insofar as there had been no settlement entered at the time of the appeal.

The March 2003 judgment approving of the settlement stated in part that: “the LIABILITY of Dr. Clinton Hart and Louisiana Medical Mutual Insurance Company is ADMITTED AND ESTABLISHED pursuant to LSA-R.S. 40:1299.44C(5) by the payment of ONE HUNDRED FIFTEEN THOUSAND AND 00/100 ($115,-000.00) DOLLARS and all costs of court to date which represents the policy limits of One Hundred Thousand and 00/100 ($100,-000.00) DOLLARS, plus legal interest[.]” This issue was clearly the subject of the LPCF’s suspensive appeal and, thus, inappropriate for consideration by the trial court. Accordingly, we vacate that portion of the March 19, 2003 judgment indicating that the approved settlement establishes liability pursuant to La.R.S. 40:1299.44(0(5).

However, as the trial court retained jurisdiction to consider the settlement insofar as it approved of the satisfaction of judgment against Dr. Hart and LAMMI-CO, and this portion of the judgment was not appealed, the trial court’s approval and dismissal of Dr. Hart and LAMMICO from the suit were not in error. Accordingly, this portion of the March 19, 2003 judgment is affirmed.

jjjMotion to Dismiss

The plaintiff filed a motion to dismiss arguing that, due to the presumption of liability established by the post-appeal settlement, the LPCF’s arguments on appeal relating to liability must be dismissed. Due to the preceding conclusion that liability has not been established under La.R.S. 40:1299.44(0(5) for the purposes of the present appeal, we find no merit in the plaintiffs motion to dismiss the LPCF’s appeal. The motion is denied. We therefore turn to consideration of the merits of the LPCF’s appeal.

Appeal of the Merits of the October 18, 2002 Judgment

Directed Verdict

The plaintiff alleged that Dr. Hart failed to obtain informed consent as to risks associated with the pterygium surgery which could result in loss of vision due to corneal thinning/perforation and also failed to obtain informed consent as to an increased risk of thinning/perforation as the result of a prior eye injury. After the close of evidence the trial court granted a directed verdict in the plaintiffs favor as to this element. Although the LPCF concedes in its brief that “Dr. Hart failed to advise plaintiff of the risk of loss of vision associated with corneal melt following pterygium surgery[,]” it questions whether the risk was known to the plaintiff and whether its relative rarity “rendered the risk immaterial.” In particular, the LPCF points to information that Dr. Harper, the initial ophthalmologist recommending the surgery, provided to the plaintiff regarding risks associated with the surgery. This information, the LPCF argues, supplied the plaintiff with sufficient information so as to provide a basis for an informed consent.

| ]2Louisiana Code of Civil Procedure Article 1810 provides that a party may move for a directed verdict at the close of evidence. A directed verdict is appropriately granted in the event that “facts and inferences are so overwhelmingly in favor of the moving party that the court finds that reasonable men could not arrive at a contrary verdict.” Guste v. Nicholls Coll. Found., 564 So.2d 682, 688-89 (La.1990). On review, an appellate court also considers whether the evidence submitted indicates that reasonable triers of fact would be unable to reach a different verdict. Pratt v. Himel Marine, Inc., 01-1832 (La.App. 1 Cir. 6/21/02), 823 So.2d 394, writ denied, 02-2128 (La.11/1/02), 828 So.2d 571, writ denied, 02-2025 (La.11/1/02), 828 So.2d 572. Cobb v. Kleinpeter, 95-271 (La.App. 3 Cir. 10/4/95), 663 So.2d 236, writ denied, 95-2683 (La.1/12/96), 666 So.2d 323. The court of appeal considers the evidence under the substantive law applicable to the nonmov-ing party’s claim. Frazier v. Zapata Protein USA, Inc., 02-0605 (La.App. 3 Cir. 12/11/02), 832 So.2d 1141, writ denied, 03-0145 (La.3/21/03), 840 So.2d 537, writ denied, 03-0126 (La.3/21/03), 840 So.2d 539.

In granting the motion for directed verdict on this issue, the trial court stated:

To me, I can’t conceive of a reasonable mind not coming to the conclusion that Dr. Hart did not adequately inform, by his own testimony, Mr. McNabb of something that I would perceive to be— and I think any person would perceive to be — a risk that are even listed in the Medical Disclosure Panel about loss of vision, loss of eyesight, loss of an eye. And, so, I don’t see a particular problem with directing that that question be marked “yes,” insofar as that is concerned and leave the other issues about whether a person under similar circumstances as Mr. McNabb would have chosen not to have the surgery.
To me, that’s a jury issue; and there might be different conclusions as it concerns that. But insofar as what Dr. Hart did, I am satisfied that he didn’t comply with the law in as far as informing Mr. McNabb of the potential risk or risks that he should have informed him of.

113We turn first to the LPCF’s assertion that the risk that was not revealed was not “material” in nature. The Louisiana Supreme Court has explained that physicians are under a duty to disclose those risks that are material. Brandt v. Engle, 00-3416 (La.6/29/01), 791 So.2d 614. Furthermore, the supreme court has found the resolution of the question of “materiality” to be a two-step process, explaining:

The first step is to define the existence and nature of the risk and the likelihood of its occurrence. “Some” expert testimony is necessary to establish this aspect of materiality because only a physician or other qualified expert is capable of judging what risk exists and the likelihood of occurrence. The second prong of the materiality test is for the trier of fact to decide whether the probability of that type harm is a risk which a reasonable patient would consider in deciding on treatment. The focus is on whether a reasonable person in the patient’s position probably would attach significance to the specific risk. This determination does not require expert testimony.

Id. at 619, quoting, Hondroulis v. Schuhmacher, 553 So.2d 398, 412 (La.l988)(on rehearing). The LPCF complains that the trial court’s determination of materiality did not take into account the second factor, that regarding whether the information was something to which a reasonable person would attach significance.

Having reviewed the evidence regarding the risk of impaired or lost vision as a result of the pterygium surgery, we find no error in the trial court’s ruling. The LPCF correctly points out that the experts testified that the occurrence of corneal thinning and perforation is relatively rare following pterygium surgery. However, the plaintiffs experts’ testimony was consistent regarding the necessity of the need to inform a patient of risks associated with the surgery, one of those being the risk of loss of vision or impairment of vision. Neither are we persuaded by the assertion that this type of risk is not one to which a patient could attach significance in deciding whether to proceed with the surgery. The very nature of the risk, loss of vision or | uimpairment of vision, renders it significant. We find no error in the trial court’s failure to articulate this finding in its reasoning.

Furthermore, we find unpersuasive the LPCF’s argument that information provided by Dr. Harper in 1997 sufficiently apprized the plaintiff of the risks of the 1998 surgery performed by Dr. Hart. First, Dr. Harper advised the plaintiff of the risks associated with pterygium removal some eighteen months prior to the surgery at issue. Furthermore, Dr. Harper testified that he found the plaintiff to be apprehensive about the surgery. The plaintiffs testimony that he “was real scared” about someone “fooling with [his] eye” supports Dr. Harper’s observation. Furthermore, the surgery with Dr. Harper was, in fact, canceled, arguably due to the disclosure of the risks. We do not conclude that Dr. Harper’s fulfillment of his own obligation to the plaintiff can be found to relieve Dr. Hart of his obligation to obtain informed consent for the surgery that he ultimately performed. Furthermore, as will be seen below, the plaintiff denied that associated risks were revealed by Dr. Hart.

Accordingly, we find no error in the trial court’s determination to grant the directed verdict.

Causal Relationship between Failure to Disclose and Injury Sustained

The LPCF argues that, in the event the directed verdict is affirmed, this court should find to be in error the jury’s finding that the plaintiffs injury was caused by the failure to disclose. Specifically, it argues that even if the risk had been disclosed, the plaintiff would have proceeded with the pterygium removal. This proof of causation, is necessary as, a plaintiff “can only recover damages for those intrusions in which consent would have been reasonably withheld if the patient had been Inadequately informed.” Lugenbuhl v. Dowling, 96-1575, p. 12 (La.10/10/97), 701 So.2d 447, 454.

Here, the jury concluded that the failure to disclose was a cause of the injury sustained. Our review of the record reveals no manifest error in this factual determination. Importantly, the jury heard testimony indicating that the plaintiff had previously canceled a surgery with Dr. Harper for removal the pterygium. Dr. Harper explained that he found the plaintiff to be apprehensive about the surgery. Furthermore, the plaintiff testified as follows regarding his concern over the operation his ultimate determination to proceed with the procedure at Dr. Hart’s office:

Q What reason did you present at Dr. Hart’s office?
A Well, I had the same problem. It wasn’t getting any worse; but my wife kept bugging me some. And I always felt like it was a good way to have a second opinion, not to question Dr. Harper but I just wanted a second opinion. And, so, that’s why I went to a different doctor.
Q What was it about Dr. Hart that put you more at ease about having this procedure done?
A I kind of questioned the young lady in Dr. Hart’s office that I had—
Q Dr. Hart?
A Dr. Hart’s—Dr. Harper’s office. Excuse me. That I had taught in school. And I found out that I would have to be in the hospital, the way I understood it; and I don’t like hospitals either. And Dr. Hart said that he would perform the surgery in his office and it’s no big deal. Then you are out of here. And that’s the reason why I decided to go ahead and do it.
Q Did he tell you there was going to be any risks associated with the surgery? A No, sir, he kind of told me it was a simple operation and we will just do it in here, I will get my nurse lined up and we will give you a shot and deaden it and you will be on your way.
|1flQ After hearing Dr. Hart’s description of the procedure to you, how did you feel about the procedure at that time? What were your thoughts at that time?
A I didn’t like the shot which was going to go beneath the eye. I was a little concerned about that, which I think anybody would be. But he said the procedure would be very simple. They would just pull it off.

Given this testimony the jury was free to conclude that, with disclosure of the associated risks, the plaintiff would not have proceeded with the surgery. In fact, the jury was aware that he had previously canceled the same surgery. Accordingly, we find no manifest error in the jury’s determination of causation.

Redacted Medical Review Panel Opinion

At the beginning of the trial, the plaintiff filed a motion in limine seeking to have the following, highlighted portions of the Medical Review Panel redacted before presentation of the opinion to the jury:

The evidence supports the conclusion that the defendant, Dr. Clinton E. Hart, failed to comply with the appropriate standard of care as to the issue of informed consent detailed herein, however the conduct complained of was not a factor of resultant damages. Dr. Baron, Dr. Lusk.
We also feel that whether or not the deviation from the standard of care as to informed consent occurred, it had no bearing on the ultimate outcome to his patient. Dr. Baron, Dr. Lusk, Dr. Azar.

The trial court granted the motion in li-mine, finding that the portions highlighted were questions to be resolved by the trier of fact. As this is causation in a lack of informed consent case, the question of causation is not one on which expert testimony is necessary. A writ application was immediately taken on the granting of the motion in limine. Although a panel of this court concluded that another portion of the |17opinion was improperly omitted, the writ application was denied with regard to the above two passages. See McNabb v. Louisiana Medical Mutual Insurance Co., an unpublished writ bearing docket number CW02-1147.

In our review of this question we are mindful of the broad requirement of La. R.S. 40:1299.47(H), which provides:

Any report of the expert opinion reached by the medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law, but such expert opinion shall not be conclusive and either party shall have the right to call, at his cost, any member of the medical review panel as a witness. If called, the witness shall be required to appear and testify. A panelist shall have absolute immunity from civil liability for all communications, findings, opinions and conclusions made in the course and scope of duties prescribed by this Part.

The broad language of Section H has been found to mandate the admissibility of the opinion. See Ardoin v. Mills, 00-1257 (La.App. 3 Cir. 3/8/01), 780 So.2d 1265, unit denied, 01-1003 (La.6/15/01), 793 So.2d 1242. Accordingly, the LPCF argues that the report, in its entirety should have been submitted.

We must consider the above provision, however, in terms of what constitutes the “expert opinion” under the statute. La. R.S. 40:1299.47 also provides, in part:

G. The panel shall have the sole duty to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care. After reviewing all evidence and after any examination of the panel by counsel representing either party, the panel shall ... render one or more of the following expert opinions, which shall be in writing and signed by the panelists, together with written reasons for their conclusions:
(1) The evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint.
(2) The evidence does not support the conclusion that the defendant or defendants failed to meet the applicable standard of care as charged in the complaint.
11S(8) That there is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court.
(4) Where Paragraph (2) above is answered in the affirmative, that the conduct complained of was or was not a factor of the resultant damages. If such conduct was a factor, whether the plaintiff suffered: (a) any disability and the extent and duration of the disability, and (b) any permanent impairment and the percentage of the impairment.

The Medical Review Panel’s opinion indicates that it found that the evidence supported a finding that the appropriate standard of care was not met, a finding consistent with Subparagraph 1. According to Subparagraph 4, it is only in the event that Subparagraph 2 is answered in the affirmative that the panel is to reach the question of “whether the conduct complained of was or was not a factor in the resultant damages.” We observe at this point that the LPCF asserts that the reference to “Paragraph (2)” in Subpara-graph 4 is a typographical error within the statute. The LPCF contends that the reference should be, instead to “Paragraph (1).” While a reading of the statute may support this proposition, we do not speculate as to the legislature’s intent.

Considering the statute on its face, we observe that the Medical Review Panel did not answer Subparagraph 2 in the affirmative, thus it exceeded its authority in commenting upon causation in this case. Furthermore, we note that causation in this case, that related to lack of informed consent, is not a conclusion requiring an “expert” opinion. Rather, it is a reasonable person analysis to be employed by the trier of fact. Accordingly, the trial court did not err in redacting those portions of the opinion that exceeded the panel’s authority. This assignment lacks merit.

Deprivation of a Fair Trial

As stated above, in addition to the finding of lack of informed consent, the jury additionally concluded that the plaintiff received substandard post-operative care. At 119issue in this assignment is an instruction that the trial court provided to the jury at the time Dr. Hart was questioned as to previous deposition testimony. The instruction, which came at the time of the questioning, is as follows:

I think it’s appropriate, ladies and gentlemen, I want to give an instruction here so that everybody understands what we are doing.
When a witness is questioned about an earlier statement he may have made or earlier testimony he may have given which might be inconsistent with his testimony before you, such questioning is permitted in order to aid you in evaluating the truth or accuracy of his testimony at this trial. Earlier statements made by a witness are not ordinarily offered or received as evidence of the truth or accuracy of such statements but are referred to for purposes of giving you a comparison and aiding you in your determination concerning the credibility or weight to be given the witness’ testimony when you hear it at this trial. Whether or not such prior statements of a witness are, in fact, consistent or inconsistent with his trial testimony is entirely for you to determine. I will of course give you additional instructions at the end of the trial concerning a number of matters that you may consider in determining the credibility of the witnesses and the weight to be given to their testimony. But I wanted you to know at this point the purpose of examining a witness concerning prior statements or testimony so that you might better understand the following presentation of evidence.

The LPCF acknowledges that La.Code Civ.P. art. 1792(A) provides that: “At any time during the trial, the court may instruct the jury on the law applicable to any issue in the case.” However, the LPCF contends this statement, which was made during Dr. Hart’s testimony, should have been made at another, less prejudicial point in the trial. It asserts that the timing of the instruction amounted to a comment upon the evidence in violation of La.Code Civ. P. art. 1791, which provides: “The judge in the presence of the jury shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted.”

Having reviewed the record as a whole, and the instruction in particular, we do not find that the instruction amounted to a comment upon the evidence. Rather, it l?.nwas instruction as to the purpose of the deposition and is expressly permitted by the Code of Civil Procedure. Accordingly, this assignment lacks merit.

Answer to the Appeal

In an answer to the appeal, the plaintiff asserts that, due to the establishment of Lability from the settlement, the LPCF’s arguments regarding the merits of the appeal are frivolous. As, after an appeal has been taken, the trial court was without jurisdiction to find that the settlement established liability under the terms of the Medical Malpractice Act, we find no merit in the answer. Although we do not grant relief on any of the LPCF’s assignments of error, we do not find the arguments to be so fully without merit as to allow for damages under La.Code Civ.P. art. 2164. See Smith v. Clement, 01-87, p. 10 (La.App. 8 Cir. 10/3/01), 797 So.2d 151, 159, writ denied, 01-2878 (La.1/25/02), 807 So.2d 249, writ denied, 01-2982 (La.1/25/02), 807 So.2d 843 (wherein a panel of this court found damages for frivolous appeal appropriate finding an appeal to be “so devoid of merit that it justified the label frivolous.”).

DECREE

For the foregoing reasons, the application for supervisory writ taken from the Judgment of March 19, 2003, is denied in part, granted in part and made peremptory. Accordingly, that portion of the March 19, 2003 judgment establishing liability pursuant to La.R.S. 40:1299.44(C)(5) is vacated. The motion to dismiss the appellant’s appeal is denied. The October 18, 2002 judgment on the merits of the case, from which the appeal is taken, is affirmed. Furthermore, the plaintiffs answer to the appeal, seeking damages associated with frivolous appeal is denied. All costs of this matter are assigned to the appellant, Louisiana Patients’ Compensation Fund.

WRIT GRANTED IN PART AND MADE PEREMPTORY; DENIED IN PART.

JUDGMENT ON APPEAL AFFIRMED; MOTION TO DISMISS DENIED.

DAMAGES FOR FRIVOLOUS APPEAL DENIED.

      . With regard to a qualified health care provider's responsibility under the Medical Malpractice Act, La.R.S. 40:1299.42(B) provides:
      B. (1) The total amount recoverable for all malpractice claims for injuries to or death of a patient, exclusive of future medical care and related benefits as provided in R.S. 40:1299.43, shall not exceed five hundred thousand dollars plus interest and costs.
      (2) A health care provider qualified under this Part is not liable for an amount in excess of one hundred thousand dollars, plus interest thereon accruing after April 1, 1991, for all malpractice claims because of injuries to or death of any one patient.

      . La.Code Civ.P. art. 1951 provides that a judgment may be amended by "the trial court at any time, with or without notice, on its own motion or on motion of any party; (1) To alter the phraseology of the judgment, but not the substance; or (2) To correct errors of calculation.”


source: Caselaw Access Project

author: _JjAMY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Sherwood Alvin HAMILTON, $1,537.00 U.S. Currency and a Ruger R-145.22 Pistol (Z054032).
    No. 03-0556.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2003.
    Van Hardin Kyzar, District Attorney, Jimmy D. Long, Jr., Assistant District At-

      torney, Natchitoches, LA, for Appellee, State of Louisiana.
    Charles R. Whitehead, Jr., Whitehead Law Offices, Natchitoches, LA, for Defendant/Appellant, Sherwood Alvin Hamilton.
    Court composed of NED E. DOUCET, JR., Chief Judge, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   _JjAMY, Judge.

The defendant was arrested for simple battery and for possession of marijuana, Oxycontin®, and alprazolam with intent to distribute. Pursuant to the Controlled Dangerous Substances Property Forfeiture Act of 1989, currency and a pistol found at the scene of the arrest were adjudged forfeited. Several months later, the defendant, who did not file a claim to recover his forfeited property, filed a class action suit, alleging that certain judgments of forfeiture obtained pursuant to the Controlled Dangerous Substances Property Forfeiture Act are absolutely null and void. The State filed exceptions of no cause of action and prescription, which the trial judge granted. The defendant appeals. For the following reasons, we affirm.

Factual and Procedural Background

According to the record, in the early hours of February 26, 2002, Natchitoches Police officers responded to a complaint of a domestic disturbance. Upon arriving at the scene, officers encountered Sherwood Hamilton and an injured Latosha Ballard. While the police were investigating what had taken place, Hamilton, accompanied by an officer, walked into his bedroom. The record reflects that upon entry, the officer noticed four plastic bags lying on a night stand that appeared to contain suspected contraband, marijuana. The bedroom was then searched, resulting in the discovery of nine bags of marijuana, collectively weighing approximately nine pounds, a steel pot containing eight bags of marijuana, collectively weighing approximately two and a half pounds, a digital weighing scale, four Oxycontin® tablets, and four alprazolam tablets. According to the record, officers further noted the presence of $1,537.00, separated into denominations of $100, $50, $20, $10, $5, and $1, consistent with the arrangement of money used in illegal narcotics trade. Police asked Hamilton if he was in possession of any weapons, and Hamilton produced a Ruger .22 pistol.

| ¡.Detective Nikeo Collins, who had been assigned to the case, collected the marijuana, pills, pistol, scales, and cash and transported these items to the Natchitoches Police Station. There, he encountered Hamilton, who was there for booking. Detective Collins’ affidavit relates that upon questioning, Hamilton stated that although the pills were for his personal use, the marijuana was not. Hamilton also stated that he was unemployed and only had $500, which he claimed he had borrowed. The detective noted in his affidavit that given the substantial quantity of marijuana at the scene, Hamilton’s criminal history, his voluntary statements concerning his possession of illicit substances, his employment status, and his substantial underestimation of the amount of money he had, Detective Collins felt that seizure of the $1,537.00 was warranted pursuant to the Louisiana Controlled Dangerous Substances Property Forfeiture Act of 1989.

The warrant of seizure for forfeiture was applied for and granted that same day, February 26, 2002. The record reflects that on March 6, 2002, an assistant district attorney for the Tenth Judicial District in Natchitoches provided that a Notice of Pending Forfeiture was served upon Sherwood Hamilton by certified mail, return receipt requested. Hamilton’s signed receipt of this notice, dated April 25, 2002, is present in the record. On June 28, 2002, the State moved for a judgment of forfeiture of the contraband seized from Hamilton, noting that more than thirty days had elapsed since the seizure, and no claims had been made for the property’s return. The judgment of forfeiture was granted that same day. Notice of judgment was mailed to Hamilton on July 1, 2002.

On December 3, 2002, Sherwood Hamilton filed a petition styled “Class Action Petition for Annul of Judgments Forfeiture Obtained Pursuant to R.S. 40:2601” in the |810th Judicial District Court. In this petition, Hamilton alleged that his and ninety-six other judgments of forfeiture rendered pursuant to the CDS Property Forfeiture Act were absolutely null and void because (1) no petition for forfeiture was ever served upon the defendants in a manner authorized by law; (2) no judgment of default was ever entered; (3) all proceedings were conducted in chambers, not in open court; (4) each proceeding was characterized by a “total lack of Due Process of Law;” and (5) no showing of forensic evidence was made to support the forfeitures. Furthermore, Hamilton argued, the Natchitoches District Attorney’s conduct in obtaining judgments of forfeiture was characterized by “fraud and ill practices,” which would allow the court to annul the judgments pursuant to La.Code Civ.P. art.2006 and Article 1, Section 2 of the Louisiana Constitution of 1974.

The State filed peremptory exceptions of no cause of action and prescription, which the trial court granted. Hamilton appeals, asserting two assignments of error:

(1) The TRIAL COURT ignored [the] case law applicable to its decision to sustain an Exception of No Cause of Action, and
(2) The TRIAL COURT committed error of law in holding prescription applied against an absolutely null and void judgment and did not cite any authority supporting that position or any article or statute concerning prescription does not run against an absolutely null and void judgment.

Discussion

Mr. Hamilton claims that the trial court erred in sustaining the State’s exceptions of no cause of action and prescription. Regarding the exception of no cause of action, Mr. Hamilton argues that his petition stated possible hypotheses for recovery, namely, that the State’s forfeiture proceedings ran afoul of the proper statutory protocol and were the result of “fraud and ill practices.” Therefore, he contends, the judgments obtained in this manner are capable of being annulled under |4La.Code Civ.P. art.2006. Mr. Hamilton also asserts that the trial court erred in finding that prescription accrued against absolutely null judgments of forfeiture. He claims that because no default judgment was ever entered against the owners of forfeited property, the judgments are null and are therefore not subject to the general rules regarding liberative prescription.

Exception of No Cause of Action

Appellate courts are to employ a de novo standard in their review of a trial court’s decision sustaining an exception of no cause of action. Industrial Companies, Inc., v. Durbin, 02-0665 (La.1/28/03), 837 So.2d 1207. De novo review is appropriate because exceptions of no cause of action involve questions of law, and the trial court’s determination is based solely on its examination of the face of the petition. Durbin, 837 So.2d 1207.

The Louisiana Supreme Court discussed the peremptory exception of no cause of action at length in its recent opinion in Durbin, 837 So.2d 1207. The purpose of this exception, the supreme court noted, is to inquire after the legal remedies afforded a particular petitioner against a defendant based on the factual allegations enumerated in the petition. Id. The court further explained that this particular exception is designed to test the legal sufficiency of the petition. Id., citing Fink v. Bryant, 2001-0987 (La.11/29/01), 801 So.3d 346. In Harp v. Pine Bluff Sand and Gravel Co., 98-1634, p. 4 (La.App. 3 Cir. 11/24/99), 750 So.2d 226, 229, a panel of this court, citing the supreme court’s decision in Trahan v. Liberty Mutual Insurance Co., 314 So.2d 350 (La.1975), defined a cause of action as “an act by a Defendant which gives a Plaintiff a right to invoke a judicial interference on his behalf.”

| sMr. Hamilton contends on appeal that the trial court erred in sustaining the exception of no cause of action because the judge ignored the jurisprudence relevant to such exceptions. Mr. Hamilton’s assignment of error concerns the trial court’s having sustained the exception in spite of the jurisprudential requirement, set forth in Darville v. Texaco, 447 So.2d 473 (La.1984) and Stanley v. Missouri Pacific Railroad Company, 179 So.2d 490 (La. App. 3 Cir.1965), inter alia, that an exception of no cause of action must be denied if the underlying petition states a cause of action. Mr. Hamilton claims that his petition listed at least five viable theories of recovery, all of which are under the umbrella of his argument that the judgments of forfeiture obtained were absolutely null. These five theories are as follows: (1) he was never served with a petition for forfeiture in a manner authorized by law; (2) no judgment of default was ever entered; (3) all proceedings regarding the forfeiture were conducted in camera and not in open court; (4) each proceeding was characterized by a “total lack of due process;” and (5) no forensic evidence was offered.

Louisiana Revised Statutes 40:2601, et seq. pertain to judicial forfeiture proceedings under the Controlled Dangerous Substances Property Forfeiture Act of 1989. The instant matter on appeal involves in rem forfeiture proceedings in particular. Because Mr. Hamilton claims that proper procedure was not followed, we begin with the Code of Civil Procedure, and, from there, we turn to the relevant provisions of La.R.S. 40:2601, et seq.

The Louisiana Code of Civil Procedure describes the types of proceedings that are available in Louisiana courts and also dictates the appropriate procedure for each proceeding. Louisiana Code of Civil Procedure art. 851 states, in pertinent part, that |fi“[t]he articles in [Book II] govern ordinary proceedings, which are to be used in the district courts in all cases, except as otherwise provided by law” (emphasis added).

The Controlled Dangerous Substance Property Forfeiture Act of 1989, La.R.S. 40:2601, et seq., is an example of legislation in which a special procedure preempts the normal procedural law, as contemplated by La.Code Civ.P. art. 851. Louisiana Revised Statutes 40:2611(K) details the proper procedural law to be followed in cases of forfeitures obtained pursuant to the Act. The pertinent provision of La.R.S. 40:2611(K) states, “Except as otherwise provided by this Chapter, all proceedings hereunder shall be governed by the provisions of the Louisiana Code of Civil Procedure .... ” (Emphasis added.) This passage indicates to us that the CDS Property Forfeiture Act contains its own procedural guidelines that, where so provided, are to be used in lieu of the provisions of the Code of Civil Procedure.

The proper procedure for forfeitures under the Act is more specifically outlined in the excerpted statutory material that follows. Louisiana Revised Statutes 40:2608 provides guidelines for the initiation of forfeiture proceedings:

Forfeiture proceedings shall be commenced as follows:
(l)(a) When the district attorney intends to forfeit property, pursuant to the provisions of this Chapter, he shall provide the owner and interest holder with a written assertion within forty-five days after actual or constructive seizure ....

Louisiana Revised Statutes 40:2612 addresses in rem proceedings under the CDS Property Forfeiture Act. The pertinent provisions have been reproduced below:

A. A judicial in rem forfeiture proceeding brought by the district attorney pursuant to a Notice of Pending Forfeiture or verified petition for forfeiture is subject to the provisions of this Chapter. If authorized by law, a forfeiture shall be ordered by the court in the in rem action.
B. An action in rem may be brought by the district attorney in addition to, or in lieu of, civil in personam forfeiture procedures. The |7state may serve the petition in the manner provided by Paragraph (3) of Section 2608 of this Chapter.

Service of an in rem petition under the CDS Property Forfeiture Act is governed by La.R.S. 40:2608(3), which provides, in pertinent part,

(3) Whenever Notice of Pending Forfeiture or service of an in rem petition is required under the provisions of this Chapter, notice or service shall be given in accordance with one of the following:
(a) If the owner’s or interest holder’s name and current address are known, by either personal service or by mailing a copy of the notice by certified mail to that address.

Section 4 of La.R.S. 40:2608 specifies when notice is effective under the CDS Property Forfeiture Act as follows:

(4) Notice is effective upon personal service, publication, or the mailing of a written notice, whichever is earlier, and shall include a description of the property, the date and place of seizure, the conduct giving rise to forfeiture or the violation of law alleged, and a summary of procedures and procedural rights applicable to the forfeiture action.

In our de novo review of Mr. Hamilton’s original petition, we find that it does not state a cause of action. Mr. Hamilton alleges that the State obtained certain judgments of forfeiture without following proper procedure, and, as a result, these judgments are null. Mr. Hamilton reads La.R.S. 40:2601, et seq. as requiring that the rules applicable to ordinary proceedings, such as those pertaining to service of process and to default judgments, apply to forfeiture proceedings under the CDS Property Forfeiture Act. This interpretation is incorrect. Louisiana Revised Statutes 40:2601, et seq. sets forth a special procedure for judgments of forfeiture, as stated in La.R.S. 40:2611(K). The rules pertaining to ordinary proceedings are thereby inapplicable.

As the in rem procedure of La.R.S. 40:2601, et seq. is the only procedure outlined in the statutory law for judgments of forfeiture pursuant to the CDS Property | ^Forfeiture Act of 1989, Mr. Hamilton’s contention that a different standard applies is incorrect, and it fails to state a cause of action.

Regarding the claims of the other ninety-six potential class members, we observe that the “summaries” attached to Mr. Hamilton’s petition do not form a sufficient factual basis for a petition. Louisiana law requires fact-based pleadings; the pleading at issue is insufficient in this respect. As the Louisiana Supreme Court has said, an exception of no cause of action is “triable on the face of the petition.” Durbin, 837 So.2d 1207, citing Cleco Corp. v. Johnson, 2001-0175 (La.9/18/01), 795 So.2d 302; Fink, 801 So.2d 346. We are unable to find a cause of action on the plaintiffs petition, especially in light of the paucity of facts pleaded in the ninety-six documents attached thereto.

We are mindful that, with respect to exceptions of no cause of action, La. Code Civ.P. art. 934 states as follows: ‘When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court.” However, in the instant matter, Mr. Hamilton did not raise an objection to the trial court’s not having given him leave to amend his petition so as to state a cause of action. As such, this issue is considered abandoned on appeal.

Moreover, La.Code Civ.P. art. 934 qualifies the allowance for amendments to petitions, stating that “[i]f the grounds of the objection cannot be [removed by amendment] ..., the action shall be dismissed.” A survey of the relevant jurisprudence reveals that appellate courts have concluded that the article does not require a court to give leave to amend a petition if doing so would be futile — viz., if it is apparent that the defect could not be corrected by amendment. See, e.g., Fasullo v. Finley, 00-26599 (La.App. 4 Cir. 2/21/01), 782 So.2d 76, writ denied, 01-696 (La.5/4/01), 791 So.2d 656; Wirthman-Tag Const. Co., L.L.C. v. Hotard, 00-2298 (La.App. 4 Cir. 12/19/01), 804 So.2d 856. In the instant matter on appeal, even if Mr. Hamilton were given leave to amend his petition, such amendment would be futile in light of the nature of his claims and the current statutory procedure for forfeiture under the CDS Property Forfeiture Act.

Because we find that Mr. Hamilton’s petition fails to state a cause of action, this pretermits discussion of Mr. Hamilton’s second assignment of error regarding prescription.

DECREE

For the foregoing reasons, the judgment sustaining the State’s peremptory exception of no cause of action is affirmed. All costs of this proceeding are assigned to the appellant, Sherwood Alvin Hamilton.

AFFIRMED.


author: hEZELL, Judge.

text:
    EPOCH WELLSITE SERVICES v. Corey ORTEGO.
    No. WCA 03-547.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2003.

      Mark Louis Riley, Onebane, Bernard, Torian, Lafayette, LA, for Plaintiff/Appel-lee Epoch Wellsite Services.
    Michael W. Robinson, Pucheu, Pucheu & Robinson, Eunice, LA, for Defendant Appellant Corey Ortego.
    Court composed of BILLIE COLOMBARO WOODARD, MICHAEL G. SULLIVAN, and BILLY HOWARD EZELL, Judges.
   hEZELL, Judge.

In this workers’ compensation case, Corey Ortego appeals the calculation of his wages for the purpose of determining his proper supplemental earning benefits (SEB) rate. He claims the workers’ compensation judge erred in including his U.S. Army subsistence and housing allowances as wages in that calculation, thereby incorrectly raising his income and lowering his SEB. For the following reasons, we affirm the decision of the workers’ compensation judge.

Ortego was employed by Epoch Wellsite when he was injured in an automobile accident in March of 1999. He was also a member of the National Guard working on communications systems. After the accident, Ortego began receiving SEB from Epoch based on his National Guard pay. After September 11, 2001, Ortego was moved to full time active duty in the U.S. Army. He was able to perform his light military duties despite his prior injury. As a full time soldier, Ortego became eligible to receive housing and subsistence allowances in addition to his base pay.

The current dispute arose when Epoch noticed that the amount Ortego was listing on his form 1020 was less than the gross amount on his pay stubs. Ortego was listing only his base pay, not the total amount he was receiving. Epoch then recalculated Ortego’s SEB rate using the total amount, including the allowances, and took a credit for the amounts they claim they overpaid. This matter was submitted on briefs for ruling. The workers’ compensation judge ruled that Ortego’s post-accident average monthly wage should include the housing and subsistence allowances. Specifically, the workers’ compensation judge ruled that La.R.S. 23:1021(10)(f) was not to be applied retroactively and that fringe benefits should be used in the calculation of wages. From this decision, Ortego appeals.

| ;>In his appeal, Ortego asserts four assignments of error which amount to two true assignments of error: that the workers’ compensation judge erred in ruling that Ortego’s allowances be included in the calculation of his wages for the purposes of determining his SEB rate and that the workers’ compensation judge erred in not awarding Ortego attorney’s fees. We disagree.

Allowances for housing and food are considered a fringe benefit. See Morgan v. Equitable Gen. Ins. Co., 383 So.2d 1067 (La.App. 3 Cir.1980) (value of meals); Ardoin v. S. Farm Bureau Cas. Ins. Co., 134 So.2d 323 (La.App. 3 Cir.1961) (free residence and milk). “[Fjringe benefits generally should be factored into an injured worker’s wages.” Batiste v. Capitol Home Health, 96-799, p. 11 (La.App. 3 Cir. 5/7/97), 699 So.2d 395, 401. The housing and subsistence allowances received by Ortego are not taxable under federal law. Louisiana Revised Statute 23:1021(10)(f) does provide that “no amount shall be included for any benefit or form of compensation which is not taxable to an employee for federal income tax purposes” in determining the average weekly wage. However, this Subsection was added by Acts 1999, No. 751, § 1, and had not yet taken effect at the time of Ortego’s accident. This court has determined that La. R.S. 23:1021(10)(f) is not retroactive. See McClain v. Pinecrest Dev. Ctr., 00-1622 (La.App. 3 Cir. 2/28/01), 779 So.2d 1112. Accordingly, the allowances should be included in the calculation of wages for the determination of SEB under Louisiana law.

The main claim that Ortego makes is that the- inclusion of these allowances in workers’ compensation benefit calculations pursuant to Louisiana law is preempted by federal law. We disagree. We first note that there is a strong presumption against federal preemption. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992), Sylvester v. Mentor Corp., 95-67 (La.App. 3 Cir. 9/20/95), 663 So.2d 176, 3writ denied, 95-2936 (La.2/16/96), 667 So.2d 1052. Under the Supremacy Clause of Article VI of the U.S. Constitution, enforcement of state law may be preempted by federal provisions if the Congress has either enacted a clear expression of that intent or it has legislated so comprehensively in a field that no room is left for state regulation. Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 104 S.Ct. 2694, 81 L.Ed.2d 580 (1984). Preemption will also be found if it is impossible to comply with both the federal and state provisions, or when application of state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Id. at 699, 104 S.Ct. at 2700. (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941)). “The issue of federal preemption is a matter of statutory construction, i.e., a determination of whether the statutes and administrative rules and regulations conflict with a federal statute.” Capitol City Towing & Recovery, Inc. v. State, ex rel. Dep’t of Pub. Safety & Corrections, 03-0075, p. l(La.3/21/03), 842 So.2d 321.

Here, Ortego claims that the Louisiana law discussed above is preempted by 37 U.S.C.A. 101(21), which states: “[t]he term ‘pay’ includes basic pay ... but does not include allowances.” He claims that Congress passed this law to allow the serviceman the full benefit of these allowances without penalty or taxation. However, the use of these allowances in the calculation of wages under Louisiana Workers’ Compensation Law to determine the rate of Louisiana SEB in no way affects Ortego’s compensation from the Unites States Army. The only thing affected by this is the compensation Ortego receives under Louisiana Workers’ Compensation Law. We find that the use of the allowances in this case to determine Louisiana SEB rates does not conflict or impinge upon a federally regulated area. Therefore, no Louisiana law is preempted by 37 U.S.C.A. 101(21).

LBecause the workers’ compensation judge correctly included the housing and subsistence allowances in the calculation of wages in order to determine Ortego’s SEB rate, no penalties or attorney’s fees are due to Ortego for Epoch’s actions.

The decision of the trial court is affirmed. Costs of this appeal are to be assessed against Corey Ortego.

AFFIRMED.


author: |, SULLIVAN, Judge.

text:
    Shannon DOUGLAS v. GREY WOLF DRILLING COMPANY.
    No. 03-515.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2003.

      James D. Hollier, Gregory A. Koury, Laborde & Neuner, Lafayette, LA, for Defendant/Appellant, Grey Wolf Drilling Company.
    Shannon Douglas, In Proper Person, Pitkin, LA, for Plaintiff/Appellee, Shannon Douglas.
    Court composed of BILLIE COLOMBARO WOODARD, MICHAEL G. SULLIVAN, and BILLY H. EZELL, Judges.
   |, SULLIVAN, Judge.

Grey Wolf Drilling Company (Grey Wolf) appeals a judgment awarding a former floorhand, Shannon Douglas, $2,328.00 in temporary total disability benefits for six weeks and $6,073.40 in medical expenses for the repair of a right inguinal hernia that Mr. Douglas alleged he sustained in a work-related accident. For the following reasons, we affirm.

Discussion of the Record

Mr. Douglas, a pro se litigant, testified that he felt something pull in his right groin area as he squatted to catch a “lift sub” pipe that began to roll from the rig’s rotary table between midnight and 2:00 a.m. on May 7, 2001. He explained that he completed his shift, which ended at 6:00 a.m. on May 7, without reporting the incident because he believed that he only sustained a pulled muscle that would heal. However, he stated that he later found a lump in his lower belly while showering after he had driven two and a half hours from the rig to his home. He further described having to stop his vehicle several times so that he could relieve a burning pain by standing up and walking around as he drove back to the rig for his next shift, which began at 6:00 p.m. on May 7. He testified that he was only able to work approximately two hours into that shift when he reported that he was in pain to the driller, Leroy Lejeune. Mr. Lejeune then referred him to the toolpusher, Joel Kirkpatrick.

The substance of the conversation between Mr. Douglas and Mr. Kirkpatrick is in dispute. Mr. Douglas testified that he told Mr. Kirkpatrick of the “lift sub” incident that occurred during the previous shift, but that he offered to file any medical claims under his health insurance plan because he was concerned that a safety bonus for all crew members would be in jeopardy if he reported a “lost-time” accident]^ Because he was scheduled to go on “days off’ the next day, he proposed to Mr. Kirkpatrick that he take an additional week off to recover from surgery before returning to work. According to Mr. Douglas, Mr. Kirkpatrick agreed to this plan and assured him that he would have a job when he recovered. When Mr. Douglas returned to the rig to inquire about his job three weeks later, after he had undergone the hernia repair, he learned that he had been terminated the day after his last shift because he had not been with the company long enough to take a week off.

Mr. Kirkpatrick, however, denied any knowledge of a work-related accident. He testified that Mr. Douglas explained that he needed surgery because he aggravated a pre-existing hernia while performing his “manly duties,” which Mr. Kirkpatrick understood to mean having sex with his wife. Although he acknowledged a discussion about Mr. Douglas still having his job when he returned, Mr. Kirkpatrick denied any agreement about not reporting a work-related accident to protect the crew’s safety bonuses. Mr. Lejeune, the driller, testified that he did not see Mr. Douglas catch a falling “lift sub” and that Mr. Douglas told him he may have gotten a hernia from an off-duty accident that occurred a few weeks earlier.

On May 8, 2001, Mr. Douglas sought treatment for the hernia from Dr. James Oglesby, who recommended an immediate referral to a surgeon, Dr. Patrick Savoy. According to Dr. Oglesby’s records, Mr. Douglas reported that he felt the hernia “rip about two days ago” and that it “really started hurting” during intercourse. After an initial visit with Dr. Savoy on May 9, 2001, Mr. Douglas underwent repair of a large, right inguinal hernia the next day, May 10, 2001. Dr. Savoy’s handwritten notes contained the notation “works in oilfield — large RIH for years, recently symptomatic.” The typewritten report of that visit, however, varies slightly, stating: 13 “The patient has worked in the oil field for many years with a large right inguinal hernia but has just recently become symptomatic.”

Mr. Douglas testified that he underwent a hernia repair as an infant, but he denied that he had similar problems before May 7, 2001. He testified that he began working for Grey Wolf, which was his first job in the oilfield, about seven months before the accident and that he had to pass a physical as a condition of employment. His wife testified that she was not aware of her husband having a hernia until he showed her the bulge that appeared after his shift on May 7, 2001.

At the close of evidence, the workers’ compensation judge (WCJ) found that Mr. Douglas had proved his case by a preponderance of the evidence, citing the objective evidence of a hernia, the corroboration in the medical records as to the timing of his symptoms, and an inconsistency in the testimony of Grey Wolfs employees, in that one said Mr. Douglas told him he got a hernia during sexual intercourse whereas the other stated that Mr. Douglas reported an earlier, off-duty accident. The WCJ also commented favorably on the credibility of both Mr. Douglas and his wife. Specifically, the WCJ stated that he believed Mr. Douglas when he testified (1) that he did not initially think he was seriously injured, (2) that he believed his job was in jeopardy if he reported an accident, and (3) that he believed reporting a “lost-time” accident would have placed the crew’s safety bonuses at risk. The WCJ, however, did not award any penalties, based upon the failure to report the accident and the vagueness in the medical records.

Burden of Proof

In its first assignment of error, Grey Wolf argues that the WCJ should have required Mr. Douglas to prove his case by “clear and convincing” evidence because |4his testimony was the only evidence supporting the occurrence of a work-related accident. In its second assignment of error, Grey Wolf argues that, even if “preponderance of the evidence” was the appropriate standard, Mr. Douglas’ testimony was insufficient to discharge that burden because other evidence discredited it and it was not corroborated by the circumstances following the accident.

Grey Wolf cites Provost v. Transportation Insurance Co., 524 So.2d 800 (La.App. 3 Cir.1988), for authority that a claimant’s testimony must be clear and convincing if it is the only evidence offered in support of an accident. However, Provost was based upon a line of eases that the supreme court expressly repudiated in Bruno v. Harbert International Inc., 593 So.2d 357, 364 (La.1992) (emphasis added):

[W]e find the appellate court’s reliance on the fact that plaintiff was the only witness entirely misplaced. As we stated in West [v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979)], it is improper for a court to impose a higher standard of proof on a worker simply because she was the only witness, as to do so “in effect placets] a duty upon this compensation claimant to prove her case greater than that required by the jurisprudence.” Id. at 1150. Significantly, the Third Circuit did just that by stating as a rule, based upon a string cite of its own decisions, that “where the plaintiffs testimony is the sole evidence, it must be clear and convincing.” ... We find this statement to be in direct conflict with West, supra, and to be legally incorrect. As we held in West, supra, the worker’s burden of proof, even if the worker is the sole witness of the accident, is by a preponderance of the evidence.

In Bruno, 593 So.2d at 361 (citations omitted), the supreme court explained:

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 circumstances following the alleged incident. Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends. Corroboration may also be provided by medical evidence.

| ¡-“The trial court’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error.” Id. In Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, pp. 7-8 (La.7/1/97), 696 So.2d 551, 556 (citations omitted) (alteration in original), the supreme court explained the manifest error standard of review as follows:

In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Thus, “if the [factfinder’s] findings are reasonable in light of the record received in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.”

In the present case, the WCJ found that Mr. Douglas’ testimony was corroborated by his wife and by medical records. Although the WCJ characterized the medical records “vague or ambiguous,” he found that they corroborated Mr. Douglas’ version of sustaining a hernia two days earlier that later became painful during sexual intercourse rather than the employer’s claim that the sexual intercourse was the cause of the hernia. As to Mr. Douglas’ failure to report the accident, the WCJ found his explanation — that he did not believe he was seriously injured — to be credible given the aches and pain that heavy oilfield work can cause. The WCJ also believed Mr. Douglas when he testified that the crew’s safety bonuses would be at risk should he report a “lost-time” accident. In contrast, the WCJ emphasized that Grey Wolfs employees testified inconsistently regarding what Mr. Douglas told them 1 Ras to cause of his hernia. Based upon the above, we find no error that Mr. Douglas proved that he sustained a work-related accident by a preponderance of the evidence.

Failure to File a Pre-Trial Statement

In its third assignment of error, Grey Wolf argues that the WCJ erred in allowing Mr. Douglas to present any evidence, either testimonial or documentary, because he failed to file a pre-trial statement as required by the Office of Workers’ Compensation Hearing Rules 6005 and 6007 (La.Admin.Code Title 40, Part I, Chapter 60, §§ 6005 and 6007). In overruling Grey Wolfs objection to Mr. Douglas’ evidence, the WCJ commented that it was evident the employer had conducted its own investigation of the claim and was, therefore, well aware of the information available to both sides.

Hearing Rule 6005(A) requires each party to file a pre-trial statement at least ten days before the pre-trial conference. Hearing Rule 6007(B) states that amendments to the pre-trial statement shall only be by written motion and for good cause shown. (The rule does not list the consequences for failing to file a pre-trial statement.) Hearing Rule 6201 provides that only those issues listed in the pre-trial statements shall be litigated at trial, except by written order of the WCJ for good cause or by agreement of the parties.

Louisiana Revised Statutes 23:1317(A) (emphasis added) provides, in part:

The workers’ compensation judge shall not be bound by technical rules of evidence or procedure other than as herein provided, but all findings of fact must be based upon competent evidence.... The workers’ compensation judge shall decide the merits of the controversy as equitably, summarily, and simply as may be.

In Meche v. Foremost Management Corp., 93-1390, p. 5 (La.App. 3 Cir. 5/4/94), 640 So.2d 585, 587, wait denied) 96-152 (La.3/15/96), 669 So.2d 429 quoting Keyes v. Rockwood Ins. Co., 502 So.2d 223, 228 (La.App. 3 Cir.1987)), we stated that La.R.S. 23:1317 “reflects the legislature’s intent, in compensation cases, to materially relax evidentiary and procedural rules and subordinate procedural considerations to the discovery of the truth and the protection of substantive rights.” Additionally, as explained in Vernon v. Wade Correctional Institute, 26,053, p. 5 (La.App. 2 Cir. 8/19/94), 642 So.2d 684, 688 (emphasis added), “[t]he theory inherent in pretrial procedure is the avoidance of surprise and the allowance of the orderly disposition of the case.”

In Starkman v. Munholland United Methodist Church, 97-661 (La.App. 5 Cir. 1/14/98), 707 So.2d 1277, writ denied, 98-400 (La.3/27/98), 716 So.2d 891, the court found that the claimant’s failure to file a pre-trial statement supported the WCJ’s exclusion of the testimony of a witness, a close friend of the claimant’s. However, the claimant did present other evidence in support of her claim, including her testimony, medical records, and physicians’ depositions, even though she did not file a pre-trial statement.

In the present case, Mr. Douglas offered his testimony and that of his wife, as well as four exhibits: an earnings statement prepared by the employer; incident verification forms generated by the employer; and medical insurance claims and medical records that the employer provided to him. Mr. Douglas also proffered a drug testing custody and control form that was apparently prepared at the employer’s request. We find no abuse of the WCJ’s discretion in permitting Mr. Douglas to proceed with his case, given that the employer had taken his deposition and that his documentary evidence was either generated by or otherwise available to his employer.

Forfeiture of Benefits and Restitution

[sIn its fourth assignment of error, Grey Wolf argues that the trial court erred in denying its claims for forfeiture of benefits under La.R.S. 23:1208(E) and for restitution of $17,032.09 in investigation expenses under La.R.S. 23:1208(D). Additionally, Grey Wolf argues that we should conduct a de novo review of its forfeiture and restitution claims under Bloxom v. Bloxom, 512 So.2d 839 (La.1987) because the trial court impliedly denied them without comment in its oral reasons for judgment.

In Bloxom, 512 So.2d 839, the supreme court recognized that a trial court’s factual findings may not be entitled to the usual deference owed them if the trial court’s reasons do not articulate the theory or evidentiary facts upon which its conclusions are based and if the trial court’s path may not be reasonably discerned from the record. However, in Leal v. Dubois, 00-1285, p. 4 (La.10/13/00), 769 So.2d 1182, 1185, the supreme court emphasized that deference is still owed a trial court’s decision “even if that decision is of less than ideal clarity, if the trial court’s path may reasonably discerned, such as when its findings, reasons and exercise of discretion are necessarily and clearly implied by the record.” In Leal, 769 So.2d 1182, the trial court’s written reasons clearly implied that it did not find the plaintiff to be a credible witness, and the trial court stated in denying the plaintiffs motion for a new trial that it did not believe her testimony. Finding that this court wrongly applied Bloxom in reversing the trial court’s decision, the supreme court stated: “Under these circumstances, the court of appeal erred in failing to give deference to the district court’s factual findings, which were unequivocally based on a credibility determination.” Id. at 1185 (emphasis added).

|sIn his oral reasons, the WCJ repeatedly stated that he believed Mr. Douglas’. testimony. In particular, the WCJ found Mr. Douglas credible when he stated that he initially did not believe he was seriously injured and that he believed reporting a “lost-time” accident might jeopardize his job as well as safety bonuses for the other crew members. The WCJ’s reasons for ruling clearly imply that he denied the fraud and restitution claims based upon his favorable assessment of Mr. Douglas’ credibility. Accordingly, we find that the Blox-om standard does not apply.

Louisiana Revised Statutes 23:1208(A) provides, in part: “It shall be unlawful for any person, for the purpose of obtaining ... any benefit or payment under the provisions of this Chapter ... to willfully make a false statement or representation.”

“The only requirements for forfeiture of benefits under Section 1208 are that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment.” Resweber v. Haroil Constr. Co., 94-2708, 94-3138, p. 7 (La.9/5/95), 660 So.2d 7, 12.

However, because statutory forfeiture is a harsh remedy, it must be strictly construed. Benoit v. Frank’s Casing Crew, 97-1522 (La.App. 3 Cir. 5/20/98), 713 So.2d 762, writ denied, 98-1697 (La.10/9/98), 726 So.2d 31. Whether an employee has forfeited his right to workers’ compensation benefits is a question of fact that will not be disturbed on appeal absent manifest error. Smith v. Quarles Drilling Co., 99-171 (La.App. 3 Cir. 6/2/99), 741 So.2d 829, writ denied, 99-1949 (La.10/8/99), 751 So.2d 227.

Grey Wolf argues that Mr. Douglas falsely testified that he told his co-workers and his doctors that his injury was work-related. The WCJ, however, found that the co-workers testified inconsistently and that the medical records were “ambiguous or |invague,” with discrepancies between the handwritten and typewritten reports. We find no error in the WCJ’s conclusion that Mr. Douglas did not testify falsely for the purpose of obtaining workers’ compensation benefits.

Grey Wolf also argues that Mr. Douglas forfeited his right to workers’ compensation benefits when he completed an “Incident Verification Statement Form” at the end of his May 7, 2001 shift confirming that he did not have “an incident” during that work period. On the form, which must be completed by every rig crew member after every shift, the employee is asked to “CONFIRM” that he “DID” or “DID NOT” have “an incident” during that shift. The form also contains a warning that the failure to answer truthfully may result in a denial of any right to workers’ compensation benefits, including medical treatment and expenses. The WCJ considered the use of the term “incident” to be ambiguous, noting by analogy the difficulty that the courts have in defining what may be considered an “accident.” Further, the WCJ believed Mr. Douglas when he testified that he did not initially think anything significant had happened due to the nature of heavy work in the oilfield. We find no error in the denial of a forfeiture claim based upon the completion of this form.

Decree

For the above reasons, the judgment of the Office Workers’ Compensation is affirmed. Costs of this appeal are assessed to Appellant, Grey Wolf Drilling Company.

AFFIRMED.


author: I,WOODARD, Judge.

text:
    Jake DIXON, et ux. v. DANIEL BUTANE GAS INC., et al.
    No. 03-502.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2003.
    Howard N. Nugent, Jr., Nugent Law Firm, Alexandria, LA, for Plaintiffs/Appel-lees, Jake Dixon, Mamie Dixon.
    Brian T. Butler, Baton Rouge, LA, for Defendant/Appellant, Daniel Butane Gas, Inc./Aeropres Corporation.
    Court composed of BILLIE COLOMBARO WOODARD, MICHAEL G. SULLIVAN, and BILLY HOWARD EZELL, Judges.
   I,WOODARD, Judge.

On appeal, Aeropres Corporation (Aer-opres), which is a successor to Daniel Butane Gas Inc., requests that this court reverse the trial court’s award of $15,000.00 in general damages to Jake Dixon. Mr. Dixon, Aeropres' customer, was injured when the pressure relief valve on his butane tank blew off while the Defendant’s employee attempted to fill it with butane gas. Mrs. Dixon sought damages for her alleged loss of consortium, but the trial court did not address this issue, and she did not appeal her claim. We affirm the trial court’s general damage award,

* * ‘

Daniel Butane Gas, Inc. provided Jake Dixon and his wife, Mamie Dixon, with butane gas for “quite a few years.” On August 11, 2000, it sent a Daniel Butane truck to the Dixons’ home to fill their butane tank. When it arrived, the driver of the truck handed Mr. Dixon a hose from the truck, which he attached to the butane tank. Soon after the exchange of butane gas had commenced, the pressure relief valve or pop-off valve was blown off the tank, causing butane gas to spew from it with great force.

Mr. Dixon described the force the explosion created: “[I]t was enough ... that it knocked me down [and] ... up against the fence and I was standing about [three feet] from the butane tank.” When asked if the explosion knocked him out, he responded: ‘Well, it might have ... for a couple of minutes.” According to Mr. Dixon, the release of butane gas was powerful enough to damage “a big ... magnolia” tree standing near the site of the accident. He recalled: “It burnt the leaves off of half of [the tree] where the butane went up through it.”

After the explosion, the driver helped him get to his daughter’s house that was only a short distance away. When he reached her home, he said: “[T]here’s been an accident.... [I]t knocked him in the air. I think it knocked him out. He needs help.” Mr. Dixon’s daughter, Judy Dixon, and the driver placed him on the sofa. Judy called an Ophthalmologist, Dr. James W. Welch, Jr., who insisted that she bring her father to his office as soon as possible. Shortly afterwards, Dr. Welch treated the various injuries Mr. Dixon received to his eyes and chest.

The trial court found Jake Dixon to be free from fault while, on the other hand, it found Aeropres to be fully liable for the explosion. It awarded Mr. Dixon | ¡,$15,000.00 in general damages, $335.00 in special damages, $500.00 for his lost wages, court costs, and judicial interest from August 1, 2001 until paid.

Aeropres asserts on appeal that $15,000.00 is clearly excessive under the circumstances of this case, specifically, in light of his particular injuries and because of its belief that he should have completely healed in only one or two weeks.

Excessive Damages

An appellate court should rarely disturb an award of general damages in light of the great, and even vast, discretion vested in the trier of fact.

Frequently, we encounter reasonable people who are in disagreement over the appropriate measure of general damages in a particular case. However, “[i]t is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.”

Our supreme court disapproves of the use of a scale of prior awards in cases with similar medical injuries to decide whether the trier of fact abused its discretion. Thus, the facts and circumstances of this case, alone, should determine the adequacy or inadequacy of the award. Consequently, we must decide whether the award for Mr. Dixon’s particular injuries, under the particular circumstances, is a clear abuse of the trier of fact’s broad discretion.

When the pop-off valve gave way, metal fragments blew into Jake Dixon’s face, chest, and eyes. The force of the blast threw him into a fence, rendering him unconscious. His own undisputed account, as well as Judy and Mamie Dixon’s | ^undisputed testimony, gave us a vivid description of his injuries and revealed the accident’s effect on him and his lifestyle.

Before she took her father to the hospital, Judy remembered seeing blood under his left eye and “black stuff all over his face like BB shots.” She also testified that it “looked like [he was] scalded” on his chest. Dr. Welch had already treated Mr. Dixon for his injuries when Mamie Dixon saw her husband for the first time after the accident. She noticed that the debris from the blast “chipped up” his chest and she could see bruising around his face. Her uncontested testimony, also, clearly described him as a sixty-nine-year-old man who had a relatively active lifestyle before the accident. This was in stark contrast to her portrayal of his condition at the time of trial. Specifically, she stated: “[A]fter [the accident] he couldn’t do nothing. He goes and sits on the front porch in an old chair.” Conversely, before, she remembered him to be more talkative and more able to help her around the house.

At the time of the accident, Jake Dixon and his wife were employed by Eugene Andries. Mr. Dixon’s work duties consisted of helping his wife at Kincaid Boat Landing by putting boats in the water and selling gas and crickets. In addition to working at the boat landing, he did some work on Mr. Andries’ farm. However, due to the butane tank explosion, it is undisputed that he could not work for “about three or four weeks” while he recovered from his injuries.

On August 11, 2000, the day of the accident, Dr. Welch treated him for the first time. Dr. Welch is a board-certified ophthalmologist. During this examination, he found “multiple tiny metal foreign bodies that were imbedded in the cornea and the conjunctiva in both eyes.” He also had a “subconjunctival hemorrhage in each one of his eyes.” After he removed “all the foreign bodies,” he put an antibiotic steroid on the left eye and patched it “because it seemed to be the worst eye.” In addition, he gave him “an antibiotic steroid drop to use in the right that night” and in both eyes thereafter.

Dr. Welch scheduled a follow-up visit for August 14, 2000, at which he noticed that Mr. Dixon’s left cornea had “completely healed.” However, in his right eye, he found yet another foreign body. He recalled: “I found a clear foreign body that was not metal. I don’t know what it was; maybe a piece of clear plastic ... [and] I removed that.” Dr. Welch also asked him to continue using the steroid drops “until 14[the drops] were gone or until his eyes had cleared up completely” because “[h]e still had some hemorrhaging there.”

He examined his eyes again on September 18, 2000, which was the third and last examination. After the examination, Dr. Welch noted:

When I examined him, I could see still some small comeal scars in that right eye, but the left eye was completely clear. The interior of the eye looked completely normal.

(Emphasis added.)

Aeropres maintains that his condition amounted to no more than a two-week injury and that Dr. Welch’s testimony supports their contention. During a deposition, Dr. Welch was asked the following question:

Q. How long do you think it would have been for [Mr. Dixon] to recover completely from the injuries he sustained to his eyes as a result of this incident?
A. So that his vision was as good as it was before?
Q. Yes.
A. I think just in a week or two.

We must point out that Dr. Welch’s answer is purely speculative because he did not examine Mr. Dixon a week or two after the August 11th accident. He only examined him three times. The first time was on the day of the accident, the second was three days later, and the last examination took place more than a month after the accident. Furthermore, when Dr. Welch examined him on September 18, 2000, he observed “some small corneal scars” in his right eye. Therefore, more than a month after the August 11th explosion, there was still evidence of the blast’s heavy toll on Mr. Dixon’s sixty-nine-year-old body.

When the trial court’s findings are based on determinations regarding the credibility of witnesses, the manifest error — clearly wrong — standard mandates that we give those findings great deference. “[0]nly the factfinder can be aware of the | .¡variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.” Moreover, “[t]he rule that questions of credibility are for the trier of fact applies to the evaluation of expert testimony, unless the stated reasons of the expert are patently unsound.”

In his oral reasons for judgment, the trial judge explained:
This court notes that it’s just by the grace of God that this accident didn’t result in the death or permanent injury of the Plaintiff. This court believes that Mr. Dixon, and through his testimony, was very credible and further, [sic] the testimony of his daughter. This court further believes that Mr. Dixon was, in fact, knocked unconscious at some point and that had it not been for the help of the driver in getting him to his daughter’s house to be cared for, this incident may have been worse. This court will not penalize a victim for not trying to run up medical expenses or go through a lot of different medical testing processes, nor does this in any way minimize the injury that this court feels the victim has suffered.

(Emphasis added.)

We cannot say that the trial judge abused his discretion in fixing this award of general damages. Obviously, it is not the result of passion or prejudice, and it bears a reasonable relationship to the proved damages. “Many rational triers of fact could have decided that a lower award is more appropriate, but we cannot conclude from the entirety of the evidence in this record, viewed in the light most favorable to the prevailing party in the trial court, that a rational trier of fact could not have fixed [this award] of general damages at the level set by the trial judge.” We also find that this is not one of those unusual cases where the award is so great that it is contrary to reason. Thus, we affirm.

| .CONCLUSION

For the above reasons, we affirm the trial court’s award of general damages and assess all costs of this appeal to Aeropres.

AFFIRMED.

        . Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

        .id.

        .Id. at 1261.

      . Id. (citing Reck v. Stevens, 373 So.2d 498 (La.1979)).

      . Id.

        .Id.

      . Rosell v. ESCO, 549 So.2d 840 (La.1989), writ denied, 561 So.2d 105 (La.1990).

      . Id. at 844.

      . Lirette v. State Farm Ins. Co., 563 So.2d 850, 853 (La.1990).

      . Youn, 623 So.2d 1257.

      . Id. at 1261.

      . Id.


author: hGREMILLION, Judge.

text:
    Louis STEMLEY v. Wayne DESCANT, et al.
    No. 03-662.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2003.
    James Earl Calhoun, Asst. Attorney General, Laurel I. McDonald, Asst. Attorney General, Alexandria, LA, for Defendants/Appellees, Michael Coco, Wayne Descant, J. Firmin, Jason Paul, Lillie Lit-tleton, Tom Perkins, Kristie Grayson, Dr. Quyen Tran, Connie Lemoine, Capt. Blaine Villmarette, Major Anthony Corner, Major Billy Tigner, Major Donald Ducote, Aaron Gaspard, Cindy Soileau.
    Louis Stemley P.C.C.-ND, 2D, DeQuni-cy, LA, In Proper Person Louis Stemley.
    Court composed of ULYSSES GENE THIBODEAUX, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judge.
   hGREMILLION, Judge.

This matter is before us for review of the trial court’s judgment granting an ex parte order in favor of the State of Louisiana, granting its Peremptory Exception of Failure to Timely Seek Judicial Review. In so holding, the trial court dismissed the suit filed by the plaintiff, Louis Stemley. Stemley is an inmate with the Department of Public Safety and Corrections (DPSC), who was housed at the Avoyelles Correctional Center at the time he initiated his complaint through the Administrative Remedy Procedure.

Pursuant to the Louisiana Administrative Code Part I, § 325(G)(4), an inmate, unsatisfied with the third step review of his complaint by the Secretary of the DPSC, may seek judicial review of that decision within thirty days after receipt and signing of the secretary’s decision. See La.R.S. 15:1177. The State’s peremptory exception was based on the fact that Stemley failed to seek judicial review of a ruling by the Disciplinary Board of the DPSC denying his appeal, Number HDQ-9942, AVC-99-0465. The State argued that Stemley received notice of this denial on June 13, 2000, as evidenced by the Avoyelles Correctional Center mail callout sheet. However, the record does not contain evidence of the Disciplinary Board’s ruling or date of signing of such ruling. Thus, we find that the trial court erred in granting the State’s peremptory exception since it is not apparent from the face of the record that Stemley failed to seek timely review of his complaint. This matter is remanded to the trial court for further proceedings. The costs of this appeal are assessed against the L.State of Louisiana, Department of Public Safety and Corrections, in the amount of $400.

Stemley has also filed a motion on appeal to supplement the record. Based on our finding, this motion has been rendered moot and will not be considered.

JUDGMENT VACATED; REMANDED.

      . The State is representing the named defendants in this matter: Wayne Descant, Jason Paul, Tom Perkins, Dr. Quyen Tran, Connie Lemoine, Major Anthony Corner, Major Billy Tigner, Major Donald Ducote, Cindy Soileau, Aaron Gaspard, Michael Coco, Lillie Littleton, Capt. Blaine Villmarette, Kristie Grayson, J. Firmin.


author: DECUIR, Judge.

text:
    GOVERNMENT EMPLOYEES INSURANCE CO., et al. v. Belinda STEWART, et al.
    No. 03-0595.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2003.
    David A. Hughes, Hughes & LaFleur, Alexandria, LA, for Defendant/Appellee, State Farm Mutual Auto Insurance Company.
    Christopher J. Roy, Jr., Alexandria, LA, for Secondary Plaintiff/Appellant, Grace Palm, Ellean Dukes.
    John Tucker, Kalmbach Cook, Yancey, King & Galloway, Shreveport, LA, for Plaintiff/Appellant, Government Employees Insurance Co. Grace Palm.
    Court composed of NED E. DOUCET JR., Chief Judge, and OSWALD A. DECUIR and MARC T. AMY, Judges.
   DECUIR, Judge.

For the reasons assigned in the companion case of Palm, et al. v. Stewart, et al., 03-594 (La.App. 3 Cir. 11/05/2003), 858 So.2d 790, 2003 WL 22499882, the judgment of the trial court granting summary judgment in favor of State Farm is affirmed. All costs of these proceedings are taxed to Geico.

AFFIRMED.