author: _JjDREW, J.

text:
    Minor JOHNSON, Plaintiff-Appellant, v. BERG MECHANICAL INDUSTRIES, INC., Defendant-Appellee.
    No. 36,913-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    May 16, 2003.

      John B. Morneau, Vivian, for Appellant.
    John M. Frazier, D. Brennan Hussey, Shreveport, for Appellee.
    Henry Clay Ward III, Cave Law Firm, by Kathryn Renee Cooper Willis, Baton Rouge, for Intervenor Appellee.
    Before DREW, MOORE and KOSTELKA (Pro Tempore), JJ.
   _JjDREW, J.

Minor Johnson, who represented himself at trial, appeals from the judgment denying his claim for worker’s compensation. Through his appellate counsel, claimant asserts that the Worker’s Compensation Judge (WCJ) erred in denying his request for a continuance at the beginning of the trial and in refusing to permit him to enter documents into evidence at trial. The judgment is affirmed.

FACTUAL AND PROCEDURAL HISTORY

On September 29, 1996, David B. Noles, attorney for Minor Johnson, filed a worker’s compensation claim against Berg, Inc., alleging that on October 1, 1995, at Atlas Refinery (a/k/a Pennzoil) in Shreveport, claimant sustained injuries from exposure to harmful chemicals which damaged his health. The parties stipulated that the claimant was employed by Berg on September 20, 1995; last worked at Atlas on October 10, 1995; and that he earned $15.35 per hour and would be entitled to the maximum compensation rate, if entitled to benefits. Another stipulation was that Berg was self insured.

TIME LINE OF LITIGATION Berg Continuance Johnson Continuance Joint Continuance

Date Action Grounds

09/29/96 Claim filed with OWC Injuries resulted from working unprotected in a flooded pit containing hazardous material

|202/07/97 Joint Continuance Johnson’s counsel wrote that he and attorney for Berg agreed that both sides lacked relevant medical data

09/02/97 Joint continuance By agreement

12/08/97 Berg continuance Because Berg’s attorney learned Johnson’s attorney withdrew

04/08/98 Berg continuance Berg’s counsel could not reach Johnson to find out if he was represented, and Berg’s counsel was scheduled for surgery two days before trial; Johnson sent letter stating he had no objection to the continuance

08/03/98 Motion to Dismiss Johnson did not appear at trial set for that date

08/18/98 Dismissal Action dismissed without prejudice and Johnson had 30 days to resubmit claim

09/01/98 Motion to Reinstate Motion to Reinstate by David Lowe

09/25/98 Reinstatement order Order reinstating Johnson’s claim against Berg

03/11/99 Johnson continuance Lawyer leaving Cave firm; New lawyer in Cave firm needed time to prepare

04/01/99 Enrollment Order Renee Cooper of Cave firm seeks to enroll for Johnson

06/18/99 Enrollment Order John Frazier enrolls for Berg

07/09/99 Withdrawal Order Berg counsel, Thomas Hebert of Jones, Walker withdraws

10/07/99 Joint Continuance Both sides need medical reports from Dr. Rea, who examined Johnson

J3OI/2O/OO Johnson Continuance Renee Cooper and Cave Law Firm withdraw and trial continued at Johnson’s request

01/20/00 Intervention Cave Law Firm intervenes for fees and expenses

05/11/00 Berg Continuance Johnson counsel withdraws and Berg unable to get needed medical records (notwithstanding signed releases) from doctors who examined Johnson

10/06/00 Berg Continuance Johnson has not obtained new counsel; Got medical reports of Dr. Johnson to whom Johnson referred by Dr. Cave; Unable to get deposition of Dr. Johnson of Dallas

12/18/00 Motion in Limine Berg wants testimony of Dr. Cave (wife of senior partner of Cave Law Firm) excluded from trial

01/09/01 Enrollment Order Brennan Hussey enrolled as co-counsel for Berg

01/12/01 Evidentiary Objection Berg objected to introduction of Dr. Johnson’s report

01/23/01 Enrollment Order David B. Noles enrolled as counsel for Johnson

01/26/01 Johnson Continuance Trial continued because Johnson in hospital; WCJ’s order stated no further continuances would be granted and set limits on discovery; Trial set for April 26, 2001

02/22/01 Ruling WCJ denied Berg’s motion to exclude Dr. Cave’s testimony

J403/20/01 Ruling WCJ excluded Dr. Johnson’s report as uncertified under La. R.S. 13:1715.1 and instructed Johnson the objection could be cured by having report properly certified

03/25/01 Motion in Limine Trial set for 4/2/01; Discovery deadline 3/27/01; 3/14/01 Johnson reported he would seek IME by toxicologist; Berg sought to exclude any testimony from toxicologist by deposition or otherwise

03/26/01 Motion to Compel Berg sought to compel Johnson to be examined by Dr. McWilliams and to obtain sanctions against Johnson

03/27/01 Motion to Reset Before the hearing, Berg counsel notified court he would be late; When he arrived, Johnson’s counsel, David Noles, had told court there was agreement and matter should be removed from docket; No agreement had been reached according to Berg

03/30/01 Order Hearing reset for April 23 by WCJ; Order stated no further continuances would be granted

05/01/01 Enrollment Order H. Clay Ward enrolled as co-counsel for Johnson

05/02/01 Judgment Motion to compel granted and Johnson ordered to be examined by Dr. McWilliams; Johnson ordered to submit medical records and to comply with discovery

05/14/01 Judgment Berg denied Motion in Limine as to Dr. Nassetta report, and Berg given opportunity to obtain toxicologist before trial

1508/13/01 Withdrawal Order permitting withdrawal of Johnson’s lawyer, David Noles

08/17/01 Withdrawal Order permitting withdrawal of Johnson’s co-counsel, H. Clay Ward

08/21/01 Johnson Continuance Johnson obtained continuance until 12/1/01 since his attorneys withdrew and he could not meet deadlines

10/08/01 Enrollment H. Clay Walker enrolled as Johnson’s attorney

12/10/01 Johnson Continuance Johnson granted continuance for good cause shown (attorney needed time to prepare) and matter set for trial April 2,2002

12/21/01 Motion to Compel Berg sought discovery responses

12/26/01 Johnson Motion to Continue April trial Johnson’s counsel cites conflict

12/26/01 Opposition Berg opposition to resetting April trial

03/12/02 Judgment WCJ ordered Johnson to supplement his discovery responses

03/19/02 Withdrawal Order H. Clay Ward withdrew as Johnson’s attorney

03/18/02 Johnson Motion Pro Se “Motion for Continuance and Allowance of Cases to Run Side by Side”

03/19/03 Intervention H. Clay Ward intervenes for attorney’s fees

03/18/02 Continuance Denied Johnson’s Request for Continuance Denied per telephone conference at which the WCJ stated no further continuances would be granted.

Jb03/28/02 Objections Berg filed multiple objections to Johnson’s evidence

04/2-5/02 Trial At commencement of trial, Johnson again objected to denial of continuance; trial court refused to delay the trial

06/12/02 Judgment signed Johnson’s and Intervenors’ claims denied

DISCUSSION

Continuance

At the beginning of trial in April 2002, claimant objected to the denial of his request to continue the trial and to his representing himself due to his mental and physical condition, for which he was still receiving medical care. In refusing to continue the matter, the WCJ noted:

• The case has been pending since September, 1996.
• Continuances had been granted over ten times: some via joint request, some at Berg’s request and some at Johnson’s request.
• In the conference call in March 2002, claimant told the WCJ that the decision for his lawyer to withdraw was mutual and claimant did not object; moreover, the WCJ advised there would be no more continuances and claimant informed the WCJ and Berg’s attorney that he intended to represent himself.

A continuance may be granted in any case if a good ground exists. La. C.C.P. art. 1601. A continuance is mandatory if at the time the case is to be tried, the party seeking the continuance has been unable, with the exercise of due diligence, to obtain material evidence, or if a material witness has absented himself with the contrivance of the party seeking the continuance. La. C.C.P. art. 1602.

7 In Connor v. Scroggs, 35,521 (La.App. 2 Cir. 6/12/02), 821 So.2d 542, this court explained that the trial court must consider the particular facts in each case in deciding whether to grant or deny a discretionary continuance. Some factors to consider are diligence, good faith, and reasonable grounds. Equally important is the defendant’s corollary right to have his case heard as soon as is practicable. The trial court may also weigh the condition of the court docket, fairness to both parties and other litigants before the court, and the need for orderly and prompt administration of justice. Generally, a litigant whose lawyer withdraws at or near trial may be entitled to a continuance to employ another attorney. However, because the defendant’s desire to have the case against him tried is also a factor, the claimant is not entitled to indefinite continuances simply because he is unable to secure counsel. A trial court is vested with great discretion in granting or denying a continuance under La. C.C.P. art. 1601. That ruling will not be disturbed on appeal in the absence of clear abuse of that discretion. Connor v. Scroggs, supra.

Johnson was unrepresented at the lengthy trial. His lawyer on appeal argues that the trial court was manifestly erroneous in denying Johnson’s requested continuance before trial. On appeal Johnson argues:

• His lawyer had not met discovery deadlines and withdrew two weeks before trial.
• His ex-lawyer sent him his file in a piecemeal manner, and Johnson did not receive his complete file from the attorney until five days before trial.
• The material was so massive it could not be separated and catalogued.
Is* Claimant was not physically or mentally able to represent himself due to ongoing health problems.
• His lack of legal training and skills put him at a serious disadvantage at trial.
• Claimant diligently tried to obtain the documentary evidence but was unable to do so.

Under those circumstances, Johnson argues that the trial court’s denial of the continuance was an abuse of discretion in that the ruling was manifestly erroneous and clearly wrong.

On appeal Johnson states he was entitled to the mandatory continuance in La. C.C.P. art. 1602 because he had been unable to obtain material evidence despite his exercise of due diligence. When Johnson objected to trying the case unrepresented, he explained to the WCJ that he and his attorney “split up” because the lawyer was not “turning his evidence in,” apparently referring to responding to defendant’s discovery requests. Johnson stated he received his records in several unorganized batches of papers after his attorney withdrew on March 19 before the April 2 trial. Specifically, Johnson stated at trial that Ward withdrew on the 14th and he did not receive his evidence until March 26. However, the defendant correctly pointed out that Johnson did not assert there was particular evidence which he diligently tried to obtain without success. Johnson did not prove he was entitled to a mandatory continuance under La. C.C.P. art. 1602.

Moreover, Johnson did not establish that the WCJ abused her great discretion in refusing to continue the trial based upon a good ground. The foregoing time-line sets out Johnson’s representation through the course of [athe litigation. Initially, David Noles served as claimant’s lawyer when this claim was filed in 1996 and apparently -withdrew in 1997. Following the 1998 dismissal of his action for failure to appear, Johnson retained David Lowe who had the action reinstated in 1998. In March 1999, Lowe left the Cave law firm, and a continuance was granted to Johnson in order that his new attorney, Renee Cooper, could become familiar with the case. In January 2000, both the Cave law firm and Cooper withdrew from representing Johnson. At that time, the Cave law firm intervened in the action for its legal fees. David Noles enrolled as claimant’s attorney on January 28, 2001, and in May 2001, H. Clay Ward enrolled as Johnson’s co-counsel. In August 2001, both Noles and Ward -withdrew. Ward re-enrolled to represent Johnson in October of 2001 and withdrew with Johnson’s consent in March 2002. As noted above, the WCJ stated at trial that Johnson’s requested continuance was denied because Johnson consented to the withdrawal, announced his intention to represent himself, and was informed by the WCJ that there would be no more continuances.

The record contains three joint continuances obtained by Johnson and Berg. Berg obtained four continuances, two of which were based upon the withdrawal of Johnson’s attorney and one of which was based upon Johnson’s not having hired an attorney. Of five continuances obtained by Johnson, two were to permit his different counsel more time to prepare for trial, two were because his attorneys withdrew, and one was because he was hospitalized.

hnAlthough Johnson had been warned that no further continuances would be granted, he agreed for his lawyer to withdraw shortly before the trial date. Moreover, in the March telephone conference, he informed the WCJ that he intended to represent himself. After the WCJ denied his motion for continuance on March 18, 2002, and again at the beginning of trial, Johnson did not seek supervisory review. At trial, Johnson did not provide any indication that he had tried and failed to obtain counsel. Under the particular facts and circumstances of this case, the WCJ was not manifestly erroneous or clearly wrong in denying the continuance.

Evidentiary Rulings

Johnson correctly notes that hearsay may be admitted in worker’s compensation proceedings. La. R.S. 23:1317 provides in pertinent 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 and all compensation payments provided for in this Chapter shall mean and be defined to be for only such injuries as are proven by competent evidence, or for which there are or have been objective conditions or symptoms proven, not within the physical or mental control of the injured employee himself....

(Emphasis added.)

As a general rule, admissibility of evidence is determined by a three-part test, only two of which are applicable here: i.e., (1) Is the evidence relevant?; and (2) Does the probative value of relevant evidence substantially outweigh its danger of unfair prejudice?

-n The WCJ has the discretion to admit evidence that would otherwise be inadmissible under the Louisiana Code of Evidence. The legislative requirement in La. R.S. 23:1317 that a WCJ’s factual findings be based upon competent evidence is the safeguard that ensures that the factual findings are made on evidence that has some degree of reliability and trustworthiness, notwithstanding that the evidence might fall outside of the technical rules for admissibility. The WCJ has the discretion to admit hearsay evidence in worker’s compensation proceedings. Evidence can qualify as “competent evidence,” provided that the evidence has some degree of reliability and trustworthiness and is of the type that reasonable persons would rely upon. This determination must be made on a case-by-case basis under the particular facts and circumstances. When evaluating the factual findings of a hearing officer under the manifest error standard, the appellate court must determine whether the factual findings are reasonable and supported by competent evidence in the record. The reviewing court must evaluate the competency of the evidence under the manifest error standard. Scuderi v. Crazy Johnnie Café, Inc., 02-243 (La.App. 5th Cir.10/16/02), 831 So.2d 1037.

Without specifying, Johnson complains that the WCJ erred in refusing to accept documents into evidence which were essential to his claim. The claimant contends that due to the highly technical nature of his complaint, the majority of his evidence was in the form of documents designed to prove which chemicals were present, to which chemicals claimant was exposed, and the effects of the chemicals on his body.

li2In Lady of the Lake Regional Med. Center v. Helms, 98-1931 (La.App. 1st Cir.9/24/99), 754 So.2d 1049; writ denied, 99-3057 (La.1/7/00), 752 So.2d 863, the claimant’s complaint that the WCJ erred in refusing to admit into evidence an original video tape could not be reviewed because she failed to proffer the tape into evidence, with the result that Helms had waived her right to argue that issue on appeal. The claimant in Kennedy v. Johnny F. Smith Trucking, 94-0618 (La.App. 5th Cir.3/3/95), 652 So.2d 526, did not make a proffer of the excluded testimony of two witnesses. The court held that the claimant’s failure to make a proffer of excluded evidence resulted in his being unable to claim on appeal the exclusion was erroneous.

Likewise, Johnson’s failure to proffer the excluded evidence makes appellate review impossible. This omission resulted in Johnson’s having waived his complaints about excluded evidence.

However, the record demonstrates and Johnson admits that the WCJ admitted a large amount of evidence offered by Johnson, notwithstanding objections by the defendant. Specifically, the WCJ accepted into evidence the records of Dr. Alfred R. Johnson, D.O.; Christus Schumpert Medical Records for January 12, 2001, through February 3, 2001; Christus Schumpert Medical Records for October 2000; Check History Report; Berg Daily Worksheets; and Dr. Stephanie Cave’s Deposition with attachments.

It is likely that almost any plaintiff without legal training who represents himself will face difficulties, particularly, as here, when faced with skilled, aggressive attorneys opposing the claim. Undoubtedly, this 113claimant had no knowledge of seeking supervisory review of adverse rulings on the continuance and admissibility of evidence. Moreover, claimant failed to preserve for appeal his complaints on evi-dentiary rulings by proffering the rejected evidence for review by this court. However, given the unusual history of this case with claimant’s multiple attorneys and the numerous continuances sought or caused by claimant, we cannot say that the WCJ abused her wide discretion in refusing to continue the trial. Regrettably, this claimant’s disadvantageous situation was largely of his own making. The actions of the WCJ were neither manifestly erroneous nor clearly wrong.

DECREE

The judgment of the Worker’s Compensation Judge is AFFIRMED at the costs of Minor Johnson.

      . Other litigation involving the same incident for which claimant seeks worker's compensation benefits here has previously been before this court. See, Johnson v. Berg Mechanical Industries, 35,290 (La.App.12/19/01), 803 So.2d 1067, writ denied, 02-0240 (La.4/26/02), 814 So.2d 556.

      . La. C.E. art. 404(B) limits introduction of other crimes evidence to prove character to particular exceptions.


source: Caselaw Access Project

author: 11 STEWART, J. liPER CURIAM.

license: Public Domain

text:
    Richard L. BAXTER, Respondent, v. John L. SCOTT, Applicant.
    No. 37,092-CW.
    Court of Appeal of Louisiana, Second Circuit.
    May 16, 2003.
    Order Denying Rehearing June 19, 2003.

      J. Michael Rhymes, Monroe, for Applicant.
    Forrester, Jordan & Dick, By: Shelly D. Dick, Baton Rouge, for Respondent.
    Before WILLIAMS, STEWART and PEATROSS, JJ.
   11 STEWART, J.

A writ of certiorari was granted to review the trial court’s denial of a special motion to strike, filed by the defendant pursuant to La. C.C.P. art. 971, against the petition of the plaintiff in this defamation action. Finding that the plaintiff failed to establish a probability of success on his claim, we reverse the trial court’s judgment and grant the defendant’s motion to strike.

FACTS

This writ arises from a defamation action by Richard Baxter, the former Vice President of External Affairs for the University of Louisiana at Monroe (ULM). Baxter originally filed suit against John Doe # 1-6, but later amended his petition to name John Scott, a former professor at ULM, as the defendant. Scott created and authored ‘WWW.TRUTHATULM” or “Truth at ULM” an anonymous website on which he addressed what he considered to be matters of mismanagement and abuse of office by members of the administration of ULM’s President Lawson Swearingen. Baxter was a member of Swearingen’s administration, and Scott’s website included references to Baxter. Baxter was able to learn Scott’s identity through proceedings filed in federal district court. Baxter then named Scott as a defendant in this state court defamation action.

The alleged defamatory statements are set forth in paragraphs 13-19 of Baxter’s original petition, which provides as follows:

13.
TRUTHATULM has specifically targeted Baxter as a member of the Administration’s alleged “cover up.” In one statement posted on the TRUTHA-TULM in the Fall of 2000, the web site maliciously refers to Baxter as the “ULM Administration hatchet man” and accuses Baxter of being a member of a team to cover up the alleged mismanagement of ULM.
1214.
Upon information and belief, John Doe #1 on or about January 17, 2001, published the following malicious, false and defamatory speech aimed at Petitioner: “[W]e have heard that Richard Baxter contacted KEJM Radio’s Sunny Merriweather shortly before the meeting and asked her not to attend. Word is that Baxter met Merriweather outside the meeting room barring her from meeting, while she witnessed Potts shutting Heather Wright out.” (Emphasis added.)
15.
Upon information and belief, John Doe # 2 on or about January 23, 2001, published the following malicious, false and defamatory speech aimed at Petitioner: “Richard Baxter, a ULM Administrator, has now told the truth about the name change. We are shocked.”
16.
Upon information and belief, John Doe # 3 on or about February 11, 2001, published the following malicious, false and defamatory speech aimed at Petitioner: “Baxter’s words reveal more about what he did not say. Lawson Swearingen’s Administration” working through The Ministry, have maintained that they were victims of campaign of lies and that they will not deign (sic) to refute specific charges. Now Baxter vehemently refutes a specific charge * * * “Baxter’s response points out that often repeated vague charge of a ‘campaign of lies’ is hogwash. If Baxter finds an inaccurate charge, he will counter it will (sic) all the indignation that he displayed in his letter to the editor. Maybe if the News Star had said, ‘Swearingen is unqualified, lazy, incompetent manager who is out to loot the University to build his political connections and prestige’ Baxter would have replied, ‘he ain’t lazy!”
17.
Upon information and belief, John Doe #4 on or about March 5, 2001, published the following malicious, false and defamatory speech aimed at Petitioner: “In addition, the Morning Paper reported that some of the 41 community leaders (potential donors) who thought they were signing a declaration of support for ULM were tricked by Richard Baxter, Vice-President for External Affairs, into signing a declaration of support for Lawson Swearingen.” The bamboozled may not make good donors.
18.
Upon information and belief, John Doe # 5 on or about May 9, 2001, published the following malicious, false and defamatory speech aimed at Petitioner:
* “Lawson Swearingen, ... has made such a mess that one of his sewer staff [referring to Baxter] has begun to crack under |3the strain.”
* “Richard L. Baxter, Vice-President of External Affairs, has begun to crack.”
* “Baxter’s job is to make sure that Swearingen’s incompetence and ULM’s state of decline under Swear-ingen are kept undercover.”
* “Baxter was last seen physically blocking KEDM radio’s Sunny Merri-weather from entering a meeting on health problems in Brown Hall. He reappeared in Ken Stickney’s office to protest Evans story on the ballooning deficit in ULM’s Athletic Department. Our sources report that Baxter was upset that the New Star had run Evan’s story above the fold, and that the story had provided background on subjects such as the delinquent ASF loans. The confrontation heated up and Baxter began to add colorful expletives to his arguments. Among charges leveled at Stickney was that TruthAt ULM site is a joint effort ... Eventually Baxter was so distraught that he had to be escorted from the building.”
* “And Baxter, who is the Vice-President of Excremental Affairs, has been shoveling so long that he is cracking under the strain.”
19.
Upon information and belief, John Doe # 6 on or about June 8, 2001, published the following malicious, false and defamatory speech aimed at Petitioner:
“Baxter dignified hi (sic) high office early in 2001 by physically barring reporter Sunny Merriweather from attending a meeting about the air quality of Brown Hall. Baxter suffered a rare moment of honesty at one point, admitting that alumni hated the University’s name change. At another point in the year, Baxter parsed a litany of charges that Swearingen had misused scholarship funds, laughably objecting to only one. Late, Baxter cracked up in the News-Star offices. The Ministry of Public Affairs did manage to influence the more weak minded reporters at the News-Star to provide scant positive, but confused, coverage of the Faculty Senate Survey.”

In response to the action against him, Scott filed the special motion to strike provided by La. C.C.P. art. 971. He filed three affidavits with attachments in support of his motion. In his memorandum in support of the motion, Scott argued that Baxter, as Vice President of External Affairs, was a public figure, that everything on the website involved matters of public 1 ¿concern, and that the burden of proof for purposes of the motion to strike was upon Baxter to establish a probability of prevailing on his claims. Scott argued that his affidavit showed that he had a reasonable belief in everything he said, and that if anything was in error, it was not for want of attempting to check facts. Scott also argued that he could not be held liable for hyperbole, such as referring to Baxter as the Vice President of Excremental Affairs, and likened his use of hyperbole to political cartoons.

Scott’s affidavit essentially asserted that his goal in starting the website was to disseminate the truth on newsworthy matters, and that his goal later expanded to include stopping the damage done to ULM by Swearingen’s mismanagement. Scott explained how he created the site. He asserted that he could not report on Swearingen’s administration’s attempts to hide or deflect the truth about ULM-without discussing Baxter, whose responsibilities included public relations for the administration. Scott also asserted that much of the material on the website came from either articles in the News-Star or confidential sources. In his affidavit, Scott examined each part of Baxter’s petition and explained why he posted the allegedly defamatory items. Scott explained that most of the statements about Baxter rehashed information published in other sources, and that other statements referencing Baxter were either statements of opinion or use of metaphor that cannot reasonably be taken as anything other than editorial hyperbole. Scott also asserted that many of the statements on the website have been verified by the legislative auditor, a crediting agency, and/or the report of James Fisher, a paid consultant to the ULM Board. According to Scott, none of |sthe allegedly defamatory statements falls outside of one or more of these categories.

Scott also submitted the affidavit of John Hayes, the publisher of the Morning Paper in Ruston, Louisiana. Hayes’ affidavit essentially claims that the information posted on the website was correct. Hayes gives an interesting account of the alleged activities at ULM, particularly with regard to financial difficulties. He also recounts the history of the website itself, the creation of which he links to the poor official explanations given at ULM about its financial woes.

Finally, Scott submitted the affidavit of Robert Eisenstadt, a professor of economics at ULM. In his affidavit, Eisenstadt recounts an incident within his personal knowledge concerning the difference between what was occurring at ULM with respect to potential pay cuts and what was being reported to the media.

In opposition to the motion to strike, Baxter argued that Article 971 is inapplicable because Scott is not a member of the media. Baxter also argued that he had already demonstrated a probability of success on his defamation claim in his federal court action to determine the identity of the creator of the anonymous website. Baxter filed the favorable memorandum ruling by the federal magistrate as an exhibit to his affidavit. Baxter argued that the affidavits submitted by Scott were self-serving, unreliable, not relevant, and based on opinion rather than matters within the personal knowledge of the affiants. Moreover, Baxter asserted that Scott’s own affidavit shows that the statements complained of were either false or meant |Bto carry false and defamatory implications. Finally, Baxter argues that without benefit of discovery, he cannot verify the self-serving statements by Scott regarding his lack of malicious intent.

In his own affidavit, Baxter asserted that the statements about him on the website were false and malicious. He asserted that he had no ability to post replies to protect his reputation and good name. He claimed that his reputation and standing in the community were diminished and that he was questioned about the statements on the website during an employment interview at another university. Finally, he asserted his belief that the statements about him on the website adversely impacted his ability to secure career advancement and increased earnings. Baxter valued the damage to his reputation and earning capacity at $75,000.

The trial court heard arguments and then issued its ruling denying the motion to strike. The trial court stated in its ruling that the issue presented was whether Baxter could establish the elements necessary to support a defamation claim consistent with the dictates of Article 971. After setting forth the elements of a defamation claim, and after stating that the court had considered the pleadings as well as the supporting and opposing affidavits, the court concluded that Baxter had established a probability of success on his claim. Scott’s writ application followed. The writ was granted, and the matter was docketed for review of the denial of the special motion to strike.

DISCUSSION

At issue is whether the trial court erred in denying the special motion to strike filed by Scott in response to Baxter’s defamation action. La. |7C.C.P. art. 971 authorizes this motion and provides, in relevant part, as follows:

A. (1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim.
(2) In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
(3) If the court determines that the plaintiff has established a probability of success on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the proceeding, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination.
‡ ^ $
D. AH discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this Article. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. Notwithstanding the provisions of this Paragraph, the court, on noticed motion and for good cause shown, may order that specified discovery be conducted.
F. As used in this Article, the following terms shall have the meanings ascribed to them below, unless the context clearly indicates otherwise:
(1) “Act in furtherance of a person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue” includes but is not limited to:
(a) Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.
(b) Any -written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official body authorized by law.
(c) Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.
|R(d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

In Section 2 of Acts 1999, No. 734, Section 1 of which enacted Article 971, the legislature discussed its intent in enacting this provision as follows:

“Section 2. The legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances. The legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, it is the intention of the legislature that the Article enacted pursuant to this Act shall be construed broadly.”

As is evident from the legislature’s expression of intent, Article 971 is a procedural device to be used in the early stages of litigation to screen those claims which lack merit and which would chill public participation in matters of public interest. Lee v. Pennington, 2002-0381 (La.App. 4th Cir.10/16/02), 830 So.2d 1037, writ denied, 2002-2790 (La.1/24/03), 836 So.2d 52; Stern v. Doe, 2001-0914 (La.App. 4th Cir.12/27/01), 806 So.2d 98.

In Thomas v. City of Monroe Louisiana, 36,526 (La.App.2d Cir.12/18/02), 833 So.2d 1282, this court noted that Article 971 is “virtually identical” to California’s anti-SLAPP (Strategic Lawsuits Against Public Participation) statute, Section 425.16 of the California Code of Civil Procedure. Courts applying California’s SLAPP statute have interpreted it as involving a two-part inquiry. Initially, the moving party must make a prima facie showing that the suit against him arises from an act in 19furtheranee of his rights of petition or free speech. The burden then shifts to the plaintiff to demonstrate a probability that he will prevail on his claim. MCSI, Inc. v. Woods, 2003 WL 554638 (N.D.Cal.2003); Vess v. Ciba-Geigy Corp. USA 317 F.3d 1097 (9th Cir.2003); Rivero v. American Federation of State, County, and Municipal Employees, 105 Cal.App.4th 913, 130 Cal.Rptr.2d 81 (1st Dist.2003). To establish a probability of prevailing on his claim, a plaintiff must state and substantiate a legally sufficient claim. This is done through a prima facie showing of facts sufficient to sustain a favorable judgment. Rivero, supra. An independent review is conducted on appeal. Id.

In Thomas, supra, this court reviewed the granting of an Article 971 motion to strike filed by a television station in response to a defamation action by a city official pertaining to a news report. The court conducted a de novo review of the matter and affirmed the trial court’s judgment granting the motion to strike. In its review, the court first determined that the plaintiffs claim involved a matter of public interest to which the special motion would apply. Then, the court examined whether the plaintiff would be able to overcome the motion by establishing a probability of success on his claim. The court implicitly recognized a dual burden of proof under Article 971. First, the moving party bears the burden of proving that the cause of action against him arises from actions in furtherance of his constitutional right of petition or free speech and in connection with a public issue, as defined by the statute. Second, once the moving party satisfies his initial burden, the burden of proof then shifts to the plaintiff to |inestablish a probability of success on his claim of defamation. As stated in the statute, the trial court “shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based” in deciding whether the motion is well-founded. La. C.C. art. 971(A)(2).

The two-part burden as utilized in Thomas, supra, satisfies the purpose and intent of the legislature in enacting Article 971. Once the plaintiff makes a prima facie case that the claim against him arises from the exercise of his rights of petition or free speech in connection with a public issue, the purpose behind Article 971 of encouraging continued public participation in matters of public significance by weeding out meritless lawsuits which would chill such participation is served by requiring the plaintiff to come forth with sufficient evidence to establish a probability of success on his claim. This allows the court to assess as a matter of law whether the plaintiffs lawsuit has merit or whether it is a means of chilling protected speech.

Scott’s Burden of Proof

With these principles in mind, we now address the first inquiry under Article 971, which is whether Scott established that the claim against him arises from some act of his in furtherance of his right of free speech in connection with a public issue as defined by the article. Satisfaction of this burden does not require the defendant to point out deficiencies in the plaintiffs defamation claim or establish that there are no issues of fact as when a motion for summary judgment is made. Rather, the defendant must l^show that his actions involved the type of participation in matters of public interest which Article 971 is intended to protect.

Four examples of such activities are set forth in Part F(l) of Article 971. Scott’s website and the written statements which are at issue appear to fall under at least two of the activities designated as acts in furtherance of a person’s constitutional right of free speech in connection with a public issue. Scott’s activities involved both writings made in a place open to the public and conduct in furtherance of the exercise of his right of free speech in connection with a public issue or issue of public' interest. The statements at issue were written on a website open to the public. Broadly construing Article 971 as directed by the legislature, we believe that publishing statements relating to matters of public interest on a website is an exercise of one’s constitutional right of free speech. As indicated by Scott’s affidavit as well as the affidavits of Hays and Eisen-stadt, Scott’s writings on the website involved matters of public interest, namely the operation of a public university and the conduct of its administrators in fulfilling their duties. All statements at issue appear directly related to these matters as they all discuss incidents involving Baxter in the performance of his duties as a university administrator or make reference to Baxter in his position as vice president of external affairs. The website clearly pertained to matters of public interest. Undoubtedly, the public has a great interest in how ULM, a public university that both receives public funding and contributes to the economy of the area in which it is located, is governed and whether it is having financial difficulties that are possibly being misrepresented to the public. | ^ The affidavits submitted by Scott in support of his motion show that the website and the statements posted thereon pertained to these matters of public interest.

We find that Scott has met his burden of proving that this suit arises from the exercise of his right of free speech in connection with a matter of public interest. Article 971 is applicable. We note Baxter’s argument that Article 971 applies only to suits against the media. However, we reject this argument based on the plain language of Article 971, which places no such limitation but rather applies to causes of action against “a person.”

Baxter’s Burden of Proof

In order to overcome the special motion to strike, Baxter must establish a probability of success on his claim. This showing is based on the elements of the alleged tort claim. Lee v. Pennington, supra. Baxter has alleged the tort of defamation. Defamation involves the invasion of a person’s interest in his reputation and good name. Fitzgerald v. Tucker, 98-2313 (La.6/29/99), 737 So.2d 706, rehearing denied; Sasson v. Elder, 92-1856 (La.10/18/93), 626 So.2d 345; Thomas v. City of Monroe, supra. The plaintiff in a defamation action has the burden of proving the following four elements: (1) a false or defamatory statement; (2) unprivileged publication to a third party; (3) fault, negligence or greater, of the publisher; and (4) resulting injury. Fitzgerald v. Tucker, supra.

In opposition to Scott’s motion, Baxter filed his own affidavit and a copy of a federal magistrate’s opinion, which he claimed already established his probability of success on his claim against Scott. We note that the | ^magistrate’s opinion was not based on Article 971. In his affidavit, Baxter merely alleges that Scott’s statements were false, defamatory, and malicious. We do not find that these uncorroborated conclusions suffice to meet the burden of establishing a probability of success on his defamation claim.

The record in this instance establishes that Baxter as the vice president of external affairs for ULM was a public official. This conclusion is supported by Davis v. Borskey, 94-2399 (La.9/5/95), 660 So.2d 17, at FN6, which found a purchasing agent at a state university to be a public official for purposes of a defamation action. Moreover, all of the statements alleged to be defamatory relate to public matters, as opposed to private matters, in that they all either relate incidents involving Baxter in his role as a university administrator or refer to Baxter in that role.

Speech on matters of public concern enjoys enhanced constitutional protection. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985); Romero v. Thomson Newspapers (Wisconsin), Inc., 94-1105 (La.1/17/95), 648 So.2d 866, cert. denied, 515 U.S. 1131, 115 S.Ct. 2556, 132 L.Ed.2d 810 (1995). Another form of protected speech is hyperbole, which cannot reasonably be interpreted as stating actual fact. Greenbelt Cooperative Publishing, Ass’n v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970); Romero v. Thomson Newspapers (Wisconsin), Inc., supra. References to Baxter’s administrative position as the “hatchet man,” the “Vice-President of Excremental Affairs,” or a member of the “sewer staff” could not reasonably |14be interpreted as stating an actual fact. References to Baxter “cracking up” would likewise be considered hyperbole as no one would consider him to be literally cracking up. While such comments are likely upsetting to the subject to which they refer, the Supreme Court has stated that “debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” New York Times v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964).

Other statements alleged by Baxter to be defamatory either relate incidents that allegedly occurred and which Baxter claims to be false or express an opinion. Even where a statement is false or is an expression of opinion that implies a false factual connotation, a public official must prove that the statement was made with actual malice in order to recover for defamation. Romero v. Thomson Newspapers (Wisconsin), Inc., supra, citing Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967); New York Times Co. v. Sullivan, supra; and Bussie v. Lowenthal, 535 So.2d 378 (La.1988).

Actual malice means that the statement was made with knowledge that it was false or with reckless disregard of whether it was false or not. New York Times Co. v. Sullivan, supra; Trentecosta v. Beck, 96-2388 (La.10/21/97), 703 So.2d 552. To establish reckless disregard, the plaintiff must show that the false publication was made with a high degree of awareness of its probable falsity or that the defendant entertained serious doubts as to the truth of the publications. St. Amant .v. Thompson, 390 U.S. |1f¡727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968); Davis v. Borskey, supra; Young v. Meyer, 527 So.2d 391 (La.App. 4th Cir.1988). Actual malice is not shown merely by evidence of ill will or “malice” in the ordinary sense of the word; nor is it to be inferred from evidence of personal spite, an intent to injure, or a bad motive. Harte-Hanks Communications, Inc. v. Daniel Connaughton, 491 U.S. 657, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989); Tarpley v. Colfax Chronicle, 94-2919 (La.2/17/95), 650 So.2d 738.

Upon thoroughly reviewing the submissions by the plaintiff in opposition to the motion to strike, we find that Baxter did not meet the burden of establishing a probability of success on his claim of defamation, particularly as to satisfying the element of fault requiring proof of actual malice. Other than Baxter’s own attestations in his affidavit that the alleged defamatory statements were malicious, Baxter produced nothing to establish a prima facie showing of malice. Baxter argues that malice is shown because the statements and references on the website portrayed him in a negative light. This is not sufficient to show knowledge of falsity or reckless disregard for the truth as required to prove malice. In contrast, Scott addressed each alleged defamatory statement in his own affidavit to show that he had a reasonable belief in the truth of what he was publishing and that his writings included opinion and hyperbole.

LfiWhile we realize that requiring Baxter to come forward at this early stage of litigation with sufficient evidence to establish a probability of success on his claim is a difficult burden, the necessity of protecting our constitutional rights of free speech and petition, particularly when exercised in relation to public issues or matters of public interest, requires the imposition of this burden on a plaintiff who brings a defamation action impacting these rights. Corroborating evidence, such as affidavits from persons who witnessed some of the allegedly false events reported on the website, may have been sufficient for Baxter to establish a probability of success on his defamation claim. However, no corroborating evidence was offered. On the record before us, we must conclude that Baxter failed to show a probability of success on his claim and that the trial court erred in denying Scott’s motion to strike.

CONCLUSION

The judgment of the trial court denying the special motion to strike is reversed for the reasons stated in this opinion. The motion to strike is hereby granted, and Baxter’s action is dismissed with prejudice. Costs are assessed to Baxter.

REVERSED.

Before WILLIAMS, STEWART, GASKINS, PEATROSS, and DREW, JJ.

liPER CURIAM.

On May 16, 2003, this court rendered an opinion in the above entitled writ matter. We reversed the trial court’s denial of a special motion to strike filed by John L. Scott pursuant to La. C.C.P. art. 971 against Richard L. Baxter’s petition alleging defamation. We granted the motion to strike, dismissed Baxter’s action with prejudice, and assessed costs to him.

On May 28, 2003, Judge Stewart signed an order denying a joint motion to dismiss that had been filed on behalf of Baxter and Scott on May 5, 2003, just prior to the opinion being rendered.

Thereafter, on May 30, 2002, Baxter filed a “Motion To Traverse or Alternatively, Application For Rehearing By Richard L. Baxter.” Baxter asserts that the opinion of this court was moot when rendered on May 16, 2003, because this court had been informed by way of the joint motion to dismiss that the parties had amicably resolved their differences. Baxter further asserts that the opinion is nothing more than an advisory opinion since this court was aware that the parties had settled their differences. In his prayer for relief, Baxter asks either that the ruling be traversed or rehearing be granted in accordance with Rule 2-18.7 of the Uniform Rules-Courts of Appeal (“U.R.C.A.”). He further asks that the opinion be recalled and the writ matter dismissed as moot.

Baxter bases his arguments on the fact that a joint motion to dismiss was filed prior to the opinion being rendered. Although this matter involves a writ rather than an appeal, the uniform rules applicable to appeals apply as provided by U.R.C.A. 4-8, insofar as such rules do not conflict with rules specifically pertaining to writs.

| ¡.La. C.C.P. art. 2162 provides that “(a)n appeal can be dismissed at any time by consent of all parties.” Joint motions to dismiss are specifically addressed in Rule 2-8.8 of the U.R.C.A., which provides as follows:

Any appeal may be summarily dismissed or remanded by order of the court where there has been a joint motion filed by all interested parties or their counsel of record, which shall set forth the reason for such action and which shall be supported by appropriate affidavits that the facts alleged are true and correct. (Emphasis added.)

A review of the motion to dismiss shows that the parties failed to comply with the requirement of U.R.C.A. 2-8.3 in that their motion was not supported by appropriate affidavits attesting to the truthfulness of the facts regarding their settlement and desire for dismissal. No affidavits were filed in conjunction with the motion to dismiss. The motion to dismiss was procedurally defective and provided no basis for dismissal of the appeal prior to rendition of the opinion. Nor does the defective motion to dismiss provide any basis for the recall of the opinion and dismissal as prayed for by Baxter in the motion now before this court. Accordingly, Baxter’s Motion to Traverse/Application for Rehearing is denied.

MOTION AND REHEARING DENIED.

      . In his appellate brief, Baxter refers to discovery conducted after the denial of the motion to strike by the trial court. He claims this discovery bolsters his defamation claim. Discovery was stayed as of the time of the filing of the notice of the motion to strike by Scott, as provided for in La. C.C.P. art. 971(D). As per this same provision, Baxter could have sought an order for specified discovery to be conducted prior to the trial court’s ruling on the motion. However, he did not pursue this relief. We cannot consider Baxter’s arguments regarding subsequent discovery in reviewing this motion.


author: LCOOKS, Judge. 11 COOKS, J.,

text:
    Susan ARRINGTON, et al. v. E.R. PHYSICIANS GROUP A P M C.
    No. 03-02.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 2003.

      Oliver “Jackson” Schrumpf, Sulphur, LA, for Plaintiff/Appellant: Susan Arring-ton, et al.
    Benjamin W. Mount, Bergstedt and Mount, Lake Charles, LA, for Defendant/Appellee: Galen-Med, Inc. formerly d/b/a Lake Area Medical Center.
    James Shelton, Durio, MeGoffin and Stagg, Lafayette, LA, for Defendant/Ap-pellee: E.R. Physicians Group, Inc.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   LCOOKS, Judge.

STATEMENT OF THE CASE

This is an appeal from a judgment limiting, in advance of trial, the amount recoverable by a plaintiff from the remaining defendant under the Louisiana Medical Malpractice Act (MMA).

On October 25, 1994, Billy Arrington was sent by his family physician to the emergency room of Lake Area Medical Center with a note asking the emergency room physician to admit him for a full inpatient work-up. Mr. Arrington had been experiencing shortness of breath and weakness. While in the emergency room, Mr. Arrington was examined by Dr. Ricardo Samudia, who discharged him without adequate testing. Mr. Arrington went home and died three days later. Susan Arrington sued, individually and on behalf of her two children. Named defendants were Dr. Ricardo Samudria, his insurer, Evanston Insurance Company, ER Physicians Group (a healthcare provider not qualified under the MMA), its insurer, St. Paul Fire and Marine Insurance Company, and Galen-Med d/b/a Lake Area Medical Center. Prior to trial, plaintiff settled with Dr. Ricardo Samudia for $100,000 and with the Patient Compensation Fund (PCF) for $390,000 plus legal interest and costs. Judgment was signed August 15, 2000. Trial on the issue of liability proceeded against ER Physicians Group, St. Paul Fire and Marine Insurance Company and Galen-Med, Ine., d/b/a Lake Area Medical Center. T íe jury found in favor of the plaintiff, apportioning the fault as follows:

60% to Dr. Ricardo Samudia;
20% to Galen-Med Inc., d/b/a Lake Area
Medical Center; and
20% to ER Physicians Group.

After trial, plaintiff settled with ER Physicians Group, Inc. and St. Paul Fire and Marine Insurance Company for $250,000. ER Physicians Group was not qualified under the Medical Malpractice Act and, therefore, not entitled to rely on the |3cap on recovery of damages.

Prior to trial on the liability issue, the trial court granted the motion of Galen-Med, Inc., d/b/a Lake Area Medical Center to limit its share of the damages to the balance of the statutory limit.. The trial court referenced La.R.S. 40:1299.42(B) which provides, in relevant part:

(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 for 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.

The trial court reasoned since plaintiff had already received a combined total of $490,000 from Dr. Samudia and the PCF, the remaining defendant, Galen-Med, Inc. would only be hable for the balance of $10,000 plus interest on $10,000 and 1/49 of the costs. The plaintiff appeals this judgment and asserts the following assignments of error:

(1) The trial court erred in failing to consider medical bills, funeral and burial expenses which are not covered within the cap.
(2) In calculating the amount of the cap on recoveries under the statute, the trial court failed to consider legal interest, all of which considered, increased the amount remaining available to plaintiff under the statute.
(3) The trial court erred in calculating the legal interest owed by Galen-Med to interest on $10,000 instead of interest on the amount of their potential liability of $100,000.
(4) The trial court erred in limiting the portion of costs payable by Galen-Med in advance of trial to 1/49 of the costs. Costs are not governed by the limitation of the statute where the potential principal payment by the negligent health care provider is less than $100,000.
(5) The trial court failed to consider evidence regarding the umbrella liability insurance policy of Galen-Med, and whether the insurer should be allowed to take advantage of the cap on recovery.

| ¿For the reasons assigned below, we affirm the decision of the trial court.

ASSIGNMENT OF ERROR NUMBER ONE

Plaintiff requests judgment for the following expenses:

Ambulance on October 28,1994.
Emergency room visit of October 28, 1994
Funeral expenses including, burial plot, grave marker and interment fee

With regard to the ambulance bill and the emergency room visit, these items are medical expenses and are recoverable from the remaining defendant, Galen-Med, over and above its $10,000 limit. With regard to the funeral expenses including, burial plot, grave marker and interment fee, plaintiff defines these expenses as medical services, included as, “future medical care and related benefits,” under La. R.S. 40:1299.42, and argues they are recoverable over and above the statutory limit. The terms “future medical care and related benefits” are defined in La.R.S. 40:1299.43(B)(1) which provides, in relevant part:

“Future medical care and related benefits” for the purpose of this Section means all reasonable medical, surgical, hospitalization, physical rehabilitation, and custodial services and includes drugs, prosthetic devices, and other similar materials reasonably necessary in the provision of such services, after the date of the injury.

An identical argument was made in Roy v. Gupta, 606 So.2d 940 (La.App. 3 Cir.1992) writ denied, 609 So.2d 232 (La.1992). Plaintiffs requested the appellate court to amend the lower court judgment to allow the addition of funeral expenses over and above the statutory limit of $500,000. Plaintiffs argued that funeral expenses were considered “future medical care and benefits” under the statute. This court rejected plaintiffs argument, finding:

La.R.S. 40:1299.43(B)(1) defines future medical and related benefits as “all reasonable medical care, surgical, hospitalization, physical rehabilitation, and other custodial services.” Only future medical care and related benefits are paid in addition to the $500,000 limit of the Fund.
The language contemplates the costs of maintaining medical | .^attention for an injured but living victim. We find the bills claimed do not fall into the category contemplated by the statute.

Id. at p. 947.

Accordingly, we find the interment fee, burial plot, and grave marker are not recoverable as expenses by plaintiff over and above the statutory limit.

ASSIGNMENT OF ERROR NUMBER TWO

The plaintiff contends in calculating the limits of recovery under the statute, the trial court failed to consider legal interest. It appears that the trial court did consider legal interest when calculating the amount recoverable against the remaining defendant, Galen-Med. Plaintiff settled with Dr. Sameradi for the $100,000 limit. Plaintiff also settled with the PCF for $490,000, which plaintiff designated as $390,000 in principal, $90,000 in interest and $20,000 in costs. When calculating the total amount paid to plaintiff, the trial court properly excluded interest and found plaintiff had collected $490,000 in principle. We find no error in the trial court’s reasoning.

ASSIGNMENT OF ERROR NUMBER THREE

Plaintiff argues the trial court erred in calculating the legal interest owed by Galen-Med to interest on $10,000 instead of interest on $100,000, the amount of their potential liability. A similar issue was presented in Hall v. Brookshire Bros., Ltd., 01-1506 (La.App. 3 Cir. 8/21/02); 831 So.2d 1010, writ granted, 02-2404, 02-2421 (La.11/27/02), 831 So.2d 285. In Hall, the plaintiff argued the PCF owed legal interest on the entire award of $500,000. The PCF argued the health care provider was responsible for interest on $100,000 and the PCF was only responsible for interest on the balance of $400,000, which represented the limits of its liability. The appellate court held the PCF was only liable for interest on that portion of the award representing its legal liability. The court stated:

IfiThe Fund is entitled to a credit for the sums tendered in settlement by the health care provider. La.R.S. 40:1299.42(D)(5). Therefore, the Fund is at least liable for interest on $400,000.00 of the total award. The Fund is not liable, however, for interest on the $100,000 tendered in settlement. Interest thereon is the responsibility of the health care provider_This is consistent with our holding in Futch v. Attwood, 97-259, p.12 (La.App. 3 Cir. 6/18/97); 698 So.2d 958, 964, writ granted, 97-2664 (La.2/6/98); 709 So.2d 721, where “[w]e [did] not find that the amending language in (B)(2) was intended to have legal interest continue to accrue on sums that have already been paid.”

Id. at p. 30; 1030.

In this case, we find Galen-Med is only responsible for interest on the amount of its liability, which in this case can only be $10,000.

ASSIGNMENT OF ERROR NUMBER FOUR

The trial court limited the costs owed by Galen-Med to 1/49 of the total. The trial judge arrived at the figure of 1/49 by calculating the ratio of Galen-Med’s liability ($10,000) to the amount recovered by plaintiff thus far ($490,000). Plaintiff argues that limiting, in advance of trial, costs chargeable against a defendant unfairly prejudges the costs which still will be incurred in the case. Additionally, plaintiff contends the trial court’s ruling places the entire burden of costs on plaintiff and almost no burden on Galen-Med.

Louisiana law provides the trial court “may render judgment for costs, or any part thereof, against any party, as it may consider equitable.” La.Code Civ.P. art. 1920. The trial judge is afforded great discretion in determining and allocating costs and will not be reversed on appeal absent an abuse of discretion. See Hunter v. Bossier Medical Center, 31,026 (La.App. 2 Cir. 9/25/98); 718 So.2d 636 and Pelafigue v. Sudduth, 2001-807 (La.App. 3 Cir. 5/15/02); 820 So.2d 583, writ denied, 02-2157 (La.11/8/02); 828 So.2d 1124. The trial court limited Galen-Med’s costs to a fractional percentage, after trial on liability and in advance of trial on damages. Plaintiff prevailed at trial on the issue of liability against both defendants, Galen-Med 17and ER Physician’s Group. We find Galen-Med is liable for fifty percent of the costs incurred in the trial on liability and will be solely hable for costs on the trial on damages, since the ER Physician Group settled. We find the trial court erred in limiting Galen-Med’s costs. Therefore, we reverse the decision of the trial court on this issue.

ASSIGNMENT OF ERROR NUMBER FIVE

After filing this appeal, plaintiff filed an amended petition naming Health Care Indemnity, Inc. as a defendant under the Direct Action Statute. Health Care Indemnity, Inc. provides excess insurance coverage to Galen-Med in the amount of ten million dollars. Plaintiff contends the case should be remanded to consider evidence regarding the umbrella liability insurance policy issued by Health Care Indemnity covering Galen-Med, and whether the wording of the Health Care Indemnity policy contemplated taking advantage of the limits of Louisiana’s Medical Malpractice Act.

In support of their position, plaintiff relies on St. Paul Fire and Marine Insurance Company v. Eusea, 99-2117 (La.App. 1 Cir. 9/22/00); 775 So.2d 32, writ denied, 01-0472 (La.4/27/01); 791 So.2d 116, which held the limitations of the Medical Malpractice Act did not apply to an umbrella policy insurer whose insurance policy did not require the clinic to take advantage of the Act, received premiums without regard to the limitation of liability and had no contractual expectation of limited liability under the Act.

In Eusea, Dr. Roger Blanchard was in a three year family practice residency program at Broadlawns Medical Center in Des Moines, Iowa. A portion of his residency was spent working in Louisiana at Ochsner Family Practice Clinic. Broad-lawns, as part of its employment contract with Dr. Blanchard, was to provide medical malpractice insurance coverage. Broadlawns was self-insured up to | s$250,000 and contracted with St. Paul Fire and Marine Insurance Company (St.Paul) for an excess insurance policy with a limit of thirty million dollars. Broadlawns included Dr. Blanchard as a covered physician under its policy with St. Paul.

In addition to his work at Ochsner, Dr. Blanchard obtained employment at Lady of the Sea General Hospital in Galliano, Louisiana. Dr. Blanchard obtained an additional medical malpractice insurance policy with the Medical Protective Company which covered only his work at Lady of the Sea General Hospital from February 10, 1995 through October 1,1995. At the time Dr. Blanchard obtained the Medical Protective Company policy he qualified as a health care provider under the Medical Malpractice Act by providing proof of insurance and paying a surcharge.

On September 24, 1996, Ms. Eusea filed a medical malpractice complaint against Dr. Blanchard for treatment she received while at Ochsner Clinic from September 19, 1995 through October 3, 1995, a period of time covered under the Medical Protective Company policy, but for treatment at Ochsner Clinic not Lady of the Sea General Hospital. On December 2, 1997, the PCF certified that Dr. Blanchard had paid all required surcharges and was a qualified health care provider during the time of the alleged malpractice.

The Medical Protective Company denied coverage since the alleged act of malpractice occurred at Ochsner Clinic and not at Lady of the Sea General Hospital. St. Paul filed for declaratory judgment alleging the following: Dr. Blanchard was a qualified health care provider and entitled to rely on the $100,000 limitation on damages afforded under the MMA; Dr. Blanchard is entitled to coverage under the Medical Protective Company policy; the St. Paul policy is in excess of the coverage provided under the Medical Protective Company policy. The trial court found Dr. Blanchard was a qualified health care provider, St. Paul provided coverage to Dr. Blanchard up to $100,000 only and the Medical Protective Company was not liable | gto Ms. Eusea, Dr. Blanchard or St. Paul under the facts of the case.

The appellate court affirmed the trial court’s finding that Dr. Blanchard was a qualified health care provider under the MMA and since he was a qualified health care provider, St. Paul’s liability was limited to $100,000. On rehearing, the appellate court reversed its original position ■with regard to St. Paul, finding not “every insurer of a qualified health care provider is automatically entitled to the limitation of liability contained in the Act.” Eusea at p.41. The court noted important factual distinctions in this case. Specifically, Dr. Blanchard was an employee of Broadlawns Medical Center which was self-insured up to the first $250,000. St. Paul had a contractual relationship with Broadlawns Medical Center, not Dr. Blanchard, for excess insurance coverage. The court stated:

When these facts are closely examined, we cannot conclude that St. Paul had any contractual expectation that its liability would be limited under the Medical Malpractice Act. There is no indication in the record that St. Paul imposed a requirement on Broadlawns to take advantage of liability limitations in jurisdictions where Broadlawns’ employees engaged in covered activities. The nature of St. Paul’s status as an excess insurer does not allow this court to alter the provisions of the contractual relationship between Broadlawns and St. Paul by limiting St. Paul’s liability contained in its policy.
In addition to St. Paul not being listed as a malpractice liability insurer of Dr. Blanchard, nor accepting payment of the surcharge imposed under the Act, there is no indication that the premiums assessed by St. Paul were in any way modified by Dr. Blanchard’s qualification under the Act. This court is certain that St. Paul received consideration for providing the amount of coverage that is set forth in its policy. There is no indication that the liability limits provided for in the St. Paul policy were in any manner affected or influenced by the Louisiana Medical Malpractice Act. There is no evidence that the St. Paul policy was ever negotiated, purchased, or issued with any consideration that the provisions of the Louisiana Medical Malpractice Act would affect its terms and limits because of the actions of an employee of its insured, Broadlawns Medical Center. St. Paul cannot prevail in arguing that the failure to impose the $100,000 liability limit would undermine the purpose of the Act since there is no evidence that St. Paul ever contemplated receiving the benefits of the Act.

Eusea at pp. 3-4; 41.

I min this case, Ms. Arrington asks this court to remand for a determination of whether the excess policy issued by Health Care Indemnity covering Galen-Med contemplated taking advantage of the limits of the MMA. Galen-Med contends the excess policy issued by Health Care Indemnity specifically contemplates the limitation provided under the MMA. Galen-Med points to the language in policy which provides as follows:

SCHEDULE OF UNDERLYING INSURANCE ENDORSEMENT
It is understood and agreed that the limits of liability, as specified in Item 4 of the Declarations, apply excess of the insurance described in the following tables;
Carrier: Louisiana Patient Compensation Fund
Term: Continuous
Limits: $500,000 excess of $100,000.

Galen-Med also relies on Descant v. Administrators of Tulane Educational Fund, 93-3098 (La.7/5/94); 639 So.2d 246. The issue addressed by the Louisiana Supreme Court was whether a plaintiff has a cause of action against a qualified health care ' provider’s insurer for damages above the statutory limit when the qualified health care provider’s liability is limited to $100,000.

Deborah and Leon Descant filed suit against Dr. Eduardo Herrara and Tulane Medical Center (Tulane) for damages for injuries sustained by their daughter during her birth. Tulane is a self-insured qualified health care provider under the MMA. Lexington Insurance Company (Lexington) insured Tulane against any hospital professional liability incurred in excess of one million dollars. Lexington was joined as a party pursuant to Louisiana’s Direct Action Statute. The trial court granted Lexington’s exceptions of no cause/right of action. The supreme court granted writs and affirmed. The Supreme Court stated:

Further, the Act provides that as long as the health care provider remains qualified, the provider “and his insurer” are hable for malpractice only to the extent provided by the Act. La.R.S. 40:1299.45 A(l); Sewell v. [^Doctors Hospital, 600 So.2d 577, 578 (La.1992)
The direct action statute does not create an independent cause of action against the insurer, it merely grants a procedural right of action against the insurer where the plaintiff has a substantive cause of action against the insured (citations omitted).... Thus, there must be legal liability on the part of Tulane in order for Lexington to be hable. See Ruiz, 162 So. at 738.
We reject plaintiffs’ contention that a health care provider remains legally liable for claims beyond the statutory limit of $100,000.... Therefore, because the Medical Malpractice Act restricts the health care provider’s liability, there is no cause of action against Lexington and the exceptions must be sustained.

Id. pp. 2-4; 249-49.

Galen-Med d/b/a/ Lake Area Medical Center, unhke Broadlawns Medical Center in Des Moines, Iowa, was a qualified health care provider under the Louisiana MMA. As such, its liability is limited to $100,000. Plaintiff cannot circumvent this statutory limit, by suing Galen-Med’s excess insurance carrier, Health Care Indemnity, Inc., under Louisiana’s Direct Action Statute. The liability of Health Care Indemnity, Inc. is limited to the liability of the insured. We reject plaintiff’s argument on this issue.

DECREE

Based on the foregoing review of the record, we reverse the decision of the trial court limiting Galen-Med’s court costs to 1/49 and allow recovery of the ambulance bill of October 28, 1994 and the emergency room visit of October 28,1994. Additionally, it is ordered that Galen-Med pay fifty percent of the costs associated with trial on the liability issue and one hundred percent of the costs associated with trial on damages. It is further ordered that Galen-Med pay interest on the total amount of its liability of $10,000. The plaintiffs motion to remand to consider evidence regarding the umbrella policy covering Galen-Med is denied. In all other respects, the decision of the trial court is affirmed.

| ^AFFIRMED in part, REVERSED in part, and RENDERED.

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

11 COOKS, J.,

dissents in part.

While I agree with the majority that the burial plot and grave marker are not recoverable as expenses over and above the statutory limit, I disagree that plaintiff is not entitled to recover expenses associated with embalming and interment. These expenses are state mandated medical expenses, which in this case was necessitated by and directly related to the act of malpractice by defendants. In Louisiana, the embalming and interment of deceased individuals is regulated by the State Department of Health and Hospitals in Louisiana Revised Statute 40:5, which provides, in relevant part:

The state health officer and the office of public health of the Department of Health and Hospitals shall have exclusive jurisdiction, control, and authority:
(14) Over the regulation of the carriage and transportation of ... dead bodies brought into the state or transported through or in the state as they may affect public health.

Additionally, funeral directors are licensed and regulated in Louisiana Revised Statute 37:881 et seq. Louisiana Revised Statute 37:848(D)(5):

Every dead human body shall be disposed of and prepared through a funeral establishment and under the supervision of a licensed funeral home or embalmer.

The expenses incurred by the family to embalm and bury Mr. Arrington are necessary medical expenses and are distinguishable from the cost of the burial plot I ¡.and grave marker. Accordingly, I would find Galen-Med responsible for the embalming and interment fee over and above the limits of its liability.


author: LBROWN, C.J.

text:
    Vonda WILLIAMS, et al., Plaintiffs-Appellants, v. SUPERIOR UNIFORM GROUP, INC., et al., Defendants-Appellees. Marvin Boyette, et al., Plaintiffs-Appellants, v. Superior Uniform Group, Inc., et al., Defendants-Appellees.
    Nos. 37,176-CA, 37,177-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 22, 2003.
    Rehearing Denied June 19, 2003.

      Williams & Krause, L.L.C., by Lynn E. Williams, Lynn Eric Williams, Jr., Kevin R. Krause, Baton Rouge, for Appellants.
    Jeffrey Greer Rice, Baton Rouge, Hudson, Potts & Bernstein, by Jan P. Chris-tiansen, Monroe, Ford & Harrison, L.L.P., by Pedro P. Forment, Samuel A. Terilli, for Appellees.
    Before BROWN, GASKINS, and MOORE, JJ.
   LBROWN, C.J.

Three employees filed petitions for general, special and exemplary damages against their employer, Superior Uniform Group, Inc., and its plant manager. Defendants filed motions for summary judgment claiming that plaintiffs’ exclusive remedy for an occupational disease is in workers’ compensation. The trial court granted the motions. We affirm.

Facts

Plaintiffs, Vonda Williams, Carla Washington, and the now deceased Ruth Boy-ette, were all employed at various times over the last several years at a garment sewing facility operated by Superior Uniform Group Inc., d/b/a Louisiana Uniform Industries, in Delhi, Louisiana. Superior was founded in 1920 ás a family-owned business devoted to the sewing and sale of uniforms and operated several facilities throughout the United States. The Delhi facility received pre-cut fabric which it sewed into uniforms to be worn by employees of retail stores. The plant did not store or utilize toxic chemicals other than those commonly found in most workplaces. The fabrics shipped to the Delhi plant had been treated with chemicals such as formaldehyde, silica and dyes. The sewing process caused fuzz, lint, dust and fumes to fill the air at the plant. Employees were provided with dust masks in the event that any were sensitive or allergic to these contaminants.

Carla Washington is an African-American female, approximately 33 years of age, who began sewing uniforms at Delhi in 1988 and continued to work there until the plant shut down due to economic reasons. Washington | ¡.testified that she was not aware of any hazardous chemicals or toxins at her workplace. Washington was diagnosed with sarcoidosis in February 1999. Sarcoidosis is a disease caused by inflammation and can appear in almost any body organ but most often appears in the lungs or lymph nodes. The cause of this disease is not yet known.

Vonda Williams is an African-American female in her thirties. Williams has a family history of sarcoidosis. Williams also has a history of lumps in her breasts as well as a family history of cancer. Williams was hired at the Delhi facility as a sewing machine operator in June 1992 and worked there for about 13 months. Williams first had lung problems in 1992 and was diagnosed with sarcoidosis in 1993.

Ruth Boyette was a white female in her sixties at the time of her death. Boyette worked at the Delhi facility from 1985 until her death on April 2, 1997. Boyette worked in an office performing secretarial duties, not sewing garments. Boyette was diagnosed with multiple myeloma cancer in 1993, and several weeks later was diagnosed with sarcoidosis. Multiple myeloma is a type of cancer that affects the bone marrow, the body’s blood-forming system.

Vonda Williams, Carla Washington, and the family of the late Ruth Boyette filed their respective lawsuits, which were consolidated for trial, alleging that they should be allowed to recover general, special and exemplary damages from defendants. Plaintiffs alleged that defendants knew the harms that plaintiffs suffered were substantially certain to follow as a result of defendants’ conduct and, more specifically, because of the ^manner in which the Delhi facility was operated and maintained, i.e., with callous disregard for the health and safety of its employees. Defendants have maintained that there is no proof that plaintiffs were exposed to hazardous and toxic substances in the workplace and certainly no evidence that defendants knew it was substantially certain that the environment would cause any harm to plaintiffs.

The trial court granted defendants’ motions for summary judgment finding no proof to implicate the intentional tort exception to the immunity provided in the Workers’ Compensation Act.

Applicable Legal Principles

Intentional tort exception

The Workers’ Compensation Act represents a compromise wherein an employer is responsible for paying limited benefits regardless of fault and the employee loses his right to fully recover in tort. To effectuate its purpose, the Act grants an employer immunity from non-intentional torts. This immunity also applies to third persons, including executive officers. There is one exception to the exclusive nature of the compensation remedy and that is for'intentional acts. The intentional act exception recognizes that one should not escape the consequences of his willful misconduct. La.R.S. 23:1021 et seq.; Stelly v. Overhead Door Co. of Baton Rouge, 94-0569 (La.12/08/94), 646 So.2d 905; Berry v. Insurance Co. of North America, 28,580 (La.App.2d Cir.10/30/96), 683 So.2d 310, writ denied, 97-0091 (La.03/07/97), 689 So.2d 1374.

|/The intentional act exception has been given a narrow interpretation. The term “intent” means that the employer either (1) consciously desired the physical result of his act; or (2) knew that the result was substantially certain to follow from his conduct, meaning that injury is inevitable or virtually sure to occur. Demonstrating intent by the “substantially certain” criterion also requires proof of a strong connexity between the employer’s conduct and the employee’s injuries. Snow v. Lenox International, 27,533 (La.App.2d Cir.11/01/95), 662 So.2d 818. See also, Traweek v. LaBorde, 30,551 (La.App.2d Cir.05/13/98), 713 So.2d 664, writ denied, 98-1933 (La.11/06/98), 727 So.2d 449.

Summary judgment

A motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La.C.C.P. art. 966(B). When a motion for summary judgment has been filed, the adverse party may not rest on the mere allegations of his pleadings, but, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. Snow, supra. Appellate review of a grant or denial of summary judgment is de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.02/29/00), 755 So.2d 226.

Generally, a motion for summary judgment is not appropriate for the disposition of cases requiring judicial determination of subjective facts, e.g., motive, intent, good faith, and knowledge. Bailey v. United Gas Pipe Line Co., 27,655 (La.App.2d Cir.12/06/95), 665 So.2d 664, writ denied, 96-0058 (La.02/28/96), 668 So.2d 372. However, considering the exclusive nature of the Workers’ Compensation Act, a motion for summary judgment can be the proper procedural device to penetrate an employee’s general allegations that her injuries resulted from an intentional tort by her employer. Snow, supra. See also, Gallant v. Transcontinental Drilling Co. (La.App. 2d Cir.1985), 471 So.2d 858.

Discussion

It is the position of plaintiffs that defendants knew that their employees, including plaintiffs, suffered and would continue to suffer ill effects from exposure to excessive amounts of fuzz, lint, dust and fumes present at the facility but made no effort to improve the working conditions. Further, plaintiffs assert that defendants knew that there were hazardous and toxic substances at the plant and in the fabric; and, that because of the sewing process these substances would inevitably be released into the air with the fuzz, lint, dust and fumes.

Plaintiffs suggest that as long ■ as an employer engages in “conduct” which is voluntary, then the employer has “intentionally” caused any resulting harm. This interpretation of the law has been specifically rejected by the Louisiana Supreme Court. See Bazley v. Tortorich, 397 So.2d 475 (La.1981).

As stated, plaintiffs could not simply rest on their pleadings but needed to set forth by affidavit or otherwise specific facts in support of their theory. The record, however, presents no facts establishing conduct of any Rtype, intentional or otherwise, that was substantially certain to lead to sarcoidosis, multiple myeloma cancer or any other disease. No employee, prior to this lawsuit, ever complained that the workplace at Delhi caused sarcoidosis or cancer. Except for this action, in 80 years of operation, no employee at any of Superior’s facilities has ever sought disability benefits or filed a workers’ compensation claim alleging that the work environment created any chronic or serious illness. The record further establishes that plaintiffs Williams and Washington are within the population (African-American females between ages 20 and 40 living in the Southeastern region of the United States) with the highest rate of sarcoido-sis; in fact, Williams has a family history of sarcoidosis wholly unrelated to the Delhi workplace. As for Ruth Boyette’s cancer, plaintiffs’ own expert (who never evaluated Boyette or the work environment) attributes the cancer to “radiation” or “benzene exposure;” neither element has ever been found to be present at the Delhi facility.

Plaintiffs suggest that deposition testimony from former employees established there was “lint” and “fuzz;” however none of the employees had any knowledge that the lint or fuzz was hazardous and uniformly testified that they do not believe defendants would have intentionally put them at risk of harm.

The lack of evidence that sarcoidosis or cancer has ever “occurred before” at the Delhi workplace or “manifested itself before” negates the contention that it was “more than a reasonable probability that an injury would occur.” All three plaintiffs testified that they did not rule out other |7causes for their ailments. This together with the medical evidence that sar-coidosis is a disease of unknown etiology and more prevalent among young African-American females in this region also negates a connexity between the work environment and the harm.

Additionally, for the same reasons already stated, plaintiffs have not shown any factual support for their claim that their employer possessed knowledge that the Delhi facility’s working conditions were such that plaintiffs would inevitably contract sarcoidosis or cancer. Plaintiffs have not shown a genuine issue of material fact, that is, that they have any evidence to prove the essential elements of their case.

Conclusion

For the reasons stated herein above, we affirm.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, C.J., STEWART, GASKINS, PEATROSS, and MOORE, JJ.

Rehearing denied.

      . Plaintiffs also assigned as error the trial court’s ruling that plaintiffs’ chemist and toxicologist, Dr. Myron A. Mehlman, did not meet the Daubert standard to give a medical opinion. Specifically, the trial court ruled:
      Dr. Mehlman attempts to provide an opinion regarding the sarcoidosis and/or cancer causing propensities of certain chemicals and then to not only connect this chemical exposure to the plaintiffs without determining whether the plaintiffs were ever exposed to these chemicals at the Delhi facility, but also to give an opinion as to the origin of these diseases in plaintiffs' bodies without ever having studied the medical implications of these diseases on the human body in general or on these plaintiffs in particular. Therefore, Dr. Mehlman does not appear to be qualified to give this opinion in this case. However, even if Dr. Mehlman was qualified to give this opinion, our courts have held that in order to prove defendants’ intentional conduct, plaintiffs must show more than a reasonable probability, even more than a high probability that they could contract these diseases at the workplace. (Emphasis added).
      Without deciding whether Dr. Mehlman met the Daubert standard, we find that his opinion does not show a strong connexity between these diseases and this workplace or that the employer was virtually sure that the employees would contract these diseases.


author: I, WILLIAMS, J.

text:
    Carmencita PLATER, Plaintiff-Appellant, v. WAL-MART STORES, INC., Defendant-Appellee.
    No. 37,109-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    May 22, 2003.

      Robert A. Jahnke, Shreveport, for Appellant.
    Charles M. Kreamer, Lafayette, for Ap-pellee.
    Before WILLIAMS, CARAWAY and KOSTELKA (Pro Tempore), JJ.
   I, WILLIAMS, J.

In this workers’ compensation case, the claimant, Carmencita Plater, appeals a judgment in favor of the defendant, Wal-Mart Stores, Inc., denying her request for workers’ compensation benefits. For the following reasons, we affirm.

FACTS

On December 5, 2000, Wal-Mart Stores, Inc. (“Wal-Mart”) hired Carmencita Plater as an overnight stocker at its store located on Jewella Avenue, Shreveport, Caddo Parish, Louisiana. According to Plater, she suffered an injury to her right knee on December 21, 2000 when she struck it on a ladder while stocking merchandise. At trial, she could not recall whether the impact cut her knee; however, in her deposition she testified that the impact left an injury like a small red line on her knee. There were no witnesses to the accident.

Plater did not report the accident to Wal-Mart even though she had just completed orientation where she was informed of Wal-Mart’s policy which required employees to immediately report any such incident, regardless of how minor. Plater explained that she did not believe the injury was severe enough to report. Plater continued working after her injury. At trial, she contended that over the next several weeks after the incident, her knee became progressively worse. She testified that she took Aleve, an over-the-counter pain reliever, both before and after her shifts to help with the pain, and that during her breaks at work she would elevate her knee. Plater testified that she told her co-worker (and cousin), Sandra New-son, about her knee during one of their trips to work together. At trial, Newson | ^confirmed that Plater had continuously complained of pain.

Within a couple of months of Plater being hired, she was promoted from Stock-er to salesperson; however, she claims that her knee continued to hurt and that the pain became so intense that she finally reported the injury to Wal-Mart. On or about February 13, 2001, a Wal-Mart employee took Plater to the ‘Work Kare” department of Willis Knighton Medical Center for treatment of her knee. The medical center notes from that date reflected that Plater said she had hit her knee on a ladder at work and that she denied any previous knee injury. The medical report from a follow-up visit on February 21, 2001 also reflected that Pla-ter related her knee injury to striking her knee on a ladder at work and gave no other definite history. The return-to-work report from that date states, in part, “[Pjainful knee [with] effusion etiology undetermined.”

On February 15, 2001, Wal-Mart denied Plater’s claim for compensation benefits because she did not file a timely report of the accident and because the medical report specified that the cause and date of her knee injury was undeterminable. Pla-ter continued to work for Wal-Mart. Because her doctor limited the amount of time she could work while standing, Wal-Mart gave her a job applying security tags to merchandise.

On or about April 3, 2001, Wal-Mart fired Plater. She contends the supervisors told her she was being released because of a mandatory layoff initiated by corporate headquarters. Plater claims that she has been unable to work since her release due to the pain in her knee. She continued to receive treatment for her knee at LSU Medical Center in Shreveport 13(“LSU”) and underwent chiropractic treatment with Dr. Scott Waltemate. According to Dr. Waltemate, Plater was limping when he first saw her in July 2001. He attributed the limping to compensation for the pain in her right knee. He said that Plater did not tell him of any other accidents or injuries to her right knee or hip. Although Dr. Waltemate’s records repeatedly refer to the treatment of Plater’s left knee, he explained that these references were mistakes or typographical errors.

The evidence shows that Plater was in two car accidents during the period in question. The first accident occurred on December 6, 2000, the day after she was hired at Wal-Mart and approximately two weeks before the alleged ladder incident. During her deposition dated December 4, 2001, Plater testified that she had only been in one car accident. Plater insisted at trial that she did not injure her knee in the December car wreck. However, her medical records from LSU reflect that Pla-ter told medical personnel that she injured her right knee in a car wreck in December 2000. Two undated pages from the report displayed the following statements from the claimant:

“was involved in MVC Dec 2000” and “41 yo BF to 12b c/o [right] knee pain from MVA Dec 2000....”

The accident report from the December 2000 vehicle accident describes the damage to Plater’s car as “moderate/severe,” but indicates no injury to Plater or the other driver.

The second accident occurred on April 19, 2001. Plater testified in her deposition and at trial that her knee was hurting prior to the second | ¿accident and that the accident did not cause her any further injury. However, in a recorded statement to her automobile insurer, State Farm, regarding the accident, she stated as follows:

But I was just sayin’ when I ... had to ... do the kids and goin’ to the telephone pole to me the pressure of tryin’ to do it so quick it just like I said swelled up on me real badly ... and it was just hurtin’ real bad and that’s why I wanted him to go back ... I was concerned about my knee.

An emergency room report with regard to Plater’s second accident dated June 26, 2001 states, in part:

On 5/17/01 (sic), the patient was involved in a motor vehicle accident. She was the restrained driver, hit on the passenger side of the vehicle. She slammed on her brakes with her right foot, trying to avoid a telephone pole. She has since had persistent pain in the right lower extremity from the hip down to the foot, with maximum pain generally in the knee.

State Farm paid Plater $500 for her injuries although she asserted that she did not make a claim for any injury as a result of this accident. Although Plater did not work after she was released from Wal-Mart, she was a regularly paid babysitter for her grandchildren.

In June 2001, Plater filed a claim for compensation benefits. She asserted that she was totally and permanently disabled because of the ladder incident at Wal-Mart. After hearing the testimony of various witnesses including Plater and reviewing the extensive exhibits in this case, the workers’ compensation judge (“WCJ”) ruled that “Ms. Plater’s testimony was not credible and claimant has failed to prove by a preponderance of evidence submitted that she sustained a December 21, 2000 work accident and resulting right knee injury, while employed with defendant, Wal-Mart Stores, Inc.” From the judgment denying her claim for benefits, Plater now | ¡^appeals.

DISCUSSION

By assignments of error, claimant contends that the WCJ erred in finding that she failed to prove her case by a preponderance of the evidence and that her testimony was not credible.

In Pearce v. Medallion Construction, 36,351 (La.App.2d Cir.11/6/02), 830 So.2d 576, this court explained the law pertinent to proof of an on-the-job injury:

An injured employee is entitled to receive benefits for an injury that arises out of and in the course of his employment. LSA-R.S. 23:1031. The injured employee bears the initial burden of establishing the causal connection between the disability and the employment accident by a reasonable preponderance of the evidence. The claimant is not required to establish the exact cause of the disability, but the claimant must demonstrate by a preponderance of proof that the accident had a causal connection with the disability. Thompson v. Dillard’s Department Store, 32,974 (La.App.2d Cir.5/10/00), 759 So.2d 1074. Proof by a preponderance of the evidence exists when the evidence, taken as a whole, shows the facts sought to be proved are more probable than not. Harris v. Coushatta Industrial Sand, Inc., 31,977 (La.App.2d Cir.6/16/99), 741 So.2d 143; Weeks v. Buffington Corporation, 28,507 (La.App.2d Cir.8/21/96), 679 So.2d 946.
While the worker’s testimony alone may be sufficient to discharge that burden, it will be inadequate where (1) other evidence discredits or casts serious doubt upon the worker’s version of the incident; or (2) the worker’s testimony is not corroborated by the circumstances following the alleged incident. Clay v. Delphi Interior & Lighting Systems, 34,242 (La.App.2d Cir.12/22/00), 775 So.2d 1207.
Whether the claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the hearing officer. Thompson, supra. Factual findings in worker’s compensation cases are subject to the manifest error rule. Smith v. Louisiana Department of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129. Under the manifest error rule, the reviewing court does not decide 16whether the factual findings are right or wrong, but whether they are reasonable. Stobart v. State, Through Dept. of Transp. and Dev., 617 So.2d 880 (La.1993); Graham v. Georgia[-]Pacific Corporation, 26,165 (La.App.2d Cir.9/23/94), 643 So.2d 352.

In the event of a compensable injury, the employer or insurer is obligated to furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of the State as legal. LSA-R.S. 23:1203. Also, the manifest error standard accords great deference to the hearing officer, for as fact finder the hearing officer is in the superior position to assess the demeanor and tone of voice that are crucial to the issue of credibility. Rosell v. ESCO, 549 So.2d 840 (La.1989). The hearing officer’s decision to credit the testimony of one of two or more witnesses can virtually never be plainly wrong. Id.

In the instant case, we observe that Plater did not report the alleged work-related injury for several weeks after its occurrence, despite her claim that the condition of her knee worsened and required her to take over-the-counter medicine for pain prior to and after every shift at work. Accordingly, there was no testimony from her supervisor or any other employee to confirm that she had sustained a work-related accident, although Plater’s cousin did confirm Plater’s complaints of pain. The medical evidence shows that Plater has a knee injury, but does not establish that the injury was caused by a work-related accident. In fact, one document shows that Plater gave a history of a prior knee injury arising from a December 6, 2000 car accident.

|7After a thorough review of this record, we cannot say that the WCJ was manifestly erroneous in finding that the claimant was not a credible witness, and in concluding that she had failed to prove by a preponderance of the evidence that she sustained a work-related injury in December 2000 and was entitled to workers’ compensation benefits.

CONCLUSION

For the reasons expressed above, the judgment of the Office of Workers’ Compensation is affirmed. Costs of this appeal are assessed to the claimant, Carmencita Plater.

AFFIRMED.

      . MVC/MVA are the hospital's abbreviations for motor vehicle collision/motor vehicle accident.