author: JjGREMILLION, Judge.

text:
    Mickey Dewayne MILLS v. John HARDY and Russell Lippman.
    No. 02-1062.
    Court of Appeal of Louisiana, Third Circuit.
    March 26, 2003.

      Lloyd E. Hennigan, Jr., Hennigan and Walters, Jena, LA, for Plaintiff/Appellant, Mickey Dewayne Mills.
    Lauri Gene Boyd, Sturgeon & Boyd, Ferriday, LA, Patrick L. Boothe, Smith, Taliaferro, et al, Jonesville, LA, for Defendants/Appellees, Aaron and Lisa Jolly.
    Jack Forsythe Owens, Jr., Harrison-burg, LA, for Defendant/Appellee, Russell Lippman.
    Paul A. Lemke, Harrisonburg, LA, for Defendant/Appellee, John Hardy.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   JjGREMILLION, Judge.

In this case, the plaintiff, Mickey De-Wayne Mills, appeals the judgment of the trial court naming certain persons primary custodians of his grandchildren. For the following reasons, we affirm in part, reverse in part, and render.

FACTUAL AND PROCEDURAL BACKGROUND

Kristy Mills gave birth to three children, Jacob and Macy, whose father is John Hardy, and Brennon, whose father is Russell Lippman. Tragically, Kristy was murdered on March 30, 2000; Lippman has been charged with this crime. .In April 2001, Mickey, Kristy’s father, filed a petition for custody of his grandchildren. At the time the proceedings were filed, both Hardy and Lippman were incarcerated. Sara Laing, Mills’ ex-wife and Kristy’s mother, also filed a petition for custody of the three children. Lisa and Aaron Jolly, Lippman’s sister and brother-in-law, filed a petition for intervention seeking custody of Brennon. Following a hearing in October 2001, the trial court rendered lengthy reasons for judgment, a portion of which follows:

Mickey Mills testified that he and his wife, Wanda, lived in the Manifest community, that he was 51 years old, in good health and had worked for Trans Ocean for 15 years. Mr. Mills testified his income for 2000 was $54,000 and that he has a 6 bedroom, 3 bathroom house, so there was ample room for his three grandchildren; and he could support them. Also Mr. Mills testified he has a 7 year old son, born of his 10 year marriage to Wanda Mills. Mr. Mills testified Kristy and his grandchildren spent a good deal of time at his home prior to his daughter’s death and he wanted to keep the children together. Mr. Mills testified his wife did not work outside the home and could help care for the children. Mr. Mills work schedule is such that he works 7 days and is home 7 days.
li>Mr. Mills acknowledged that Sarah Laing had been more involved with the children over the past few years than he had. Mr. Mills also admitted he had no relationship with John Hardy prior to Kristy’s death because Mr. Hardy had “beat up” Kristy and, Mr. Hardy was on drugs. Also Mr. Mills would not permit Russell Lippman to come to his home while Kristy was living with Russell Lippman. Mr. Mills admitted he has no relationship with Brennon’s paternal grandparents or Jacob and Macy’s paternal grandparents; and that he did not know Brennon’s half sisters. Mr. Mills stated he did not want Russell Lippman at his home because he believed Mr. Lippman killed his daughter.
Wanda Mills testified she was 39 years old and had a 21 year old son from a prior marriage and a 7 year old son. Mrs. Mills stated she can help her husband care for Brennon, Macy and Jacob. She also stated she kept the children many times prior to Kristy’s death. Mrs. Mills testified that John Hardy would be welcome in her home and he had been to her home previously.
Mrs. Mills admitted she and her husband did not financially support Kristy and her children and that Ms. Laing regularly contributed to their support. Mrs. Mills also admitted that Kristy and the children resided with Ms. Laing part time and that Ms. Laing has spent more time with the children than the Mills had. Mrs. Mills also acknowledged that she had a good relationship with the Jollys but had not spoken to any other members of the Lippman family in about 6 months. Mrs. Mills testified she had seen Beth Baker, mother of Brennon’s half sister, McKenzie, one time, but there was no regular visitation between McKenzie and Brennon when he was with the Mills. Mrs. Mills admitted there was a “tense relationship” with everyone involved.
Chuck Edwards testified Mrs. Mills had worked for him for several years, and that she was an excellent employee and was well liked by his staff and clients. Mr. Edwards testified that Mrs. Mills terminated her employment to help her stepdaughter with problems she was having.
Reverend Randy Coleman testified that he was an interim pastor, at Pattern Baptist Church and while he was the pastor, Mickey and Wanda Mills attended his church. Reverend Coleman testified that while he was pastor, the Mills often brought the children to church with them.
Brent Chapman testified he was the son of Wanda Mills. He was 12 when his mother married Mickey Mills and Mr. Mills had been like a Dad to him. Mr. Mills took Mr. Chapman hunting and fishing when |3he lived -with his mother and Mr. Mills.
The parties stipulated that if called, five other witnesses would have testified the Mills have a good relationship with the children and took good care of the children while they had custody of the children.
Dr. Geraldine Cohen, a board certified pediatrician and child adolescent psychiatrist, testified she met with Mickey and Wanda Mills on two occasions, once in July, 2000 and again in October, 2001. She also met with John Hardy, Sarah Laing, Ms. Laing’s oldest daughter, Kim, Mrs. Mills son by a prior marriage, Brent Chapman, Macy Mills and Jacob Hardy. She gathered information and a history of the children from the Mills and Ms. Laing. Dr. Cohen observed the children’s interaction with the Mills, Mr. Hardy and Ms. Laing; and also observed them playing with toys. At the first meeting, Dr. Cohen observed that the children were very affectionate to their father, John Hardy and that Jacob was having problems with anger.
On October 5, 2001, Dr. Cohen saw Macy, Jacob and the Mills. Macy was ill and stayed close to Mrs. Mills. Jacob was very sad, talked about his mother and stated that he wanted to be with his mother in heaven. Dr. Cohen determined that the children had been exposed to violence — Jacob was in the same room with his mother when she was shot and Macy was in an adjoining room, and they saw her abdominal wound.
Dr. Cohen testified it is very important in the first year of a child’s life that the child have a stable environment. Dr. Cohen testified that a child develops his sense of trust and security in the first year of life. Dr. Cohen also testified it is very difficult for a child to be away from his principal caretaker. She analogized that any time away from the caretaker as synonymous to the death of a caretaker in the eyes of a baby. Dr. Cohen testified it is not in the best interest of a child that he be moved from place to place with different caretakers. She recommended that Brennon be placed with the caretakers who had been primarily responsible for his care prior to the court hearing.
When questioned by the Court about her opinion as to Macy and Jacob residing a week with Ms. Laing and a week with the Mills, Dr. Cohen testified this can only work if the families are cooperative. Dr. Cohen testified the children are more at risk in developing mental problems because of violence they have witnessed. Dr. Cohen recommended the children be in a stable environment and noted she was informed there was a strong relationship between Jacob and his ^grandmother Sarah Laing. Dr. Cohen also testified that Jacob was stressed by a sense of split loyalty — i.e. which family he should be allied with.
Ms. Laing’s case was presented after Mr. Mills concluded his presentation of testimony and evidence. Ms. Laing called Cheryl McClure who testified she was a close friend of Kristy Mills and knew of Sarah Laing’s close relationship with Kristy and her children. Ms. McClure testified that Jacob was very close to his grandmother, Sarah. Ms. McClure testified Kristy had lived with her mother on and off for 5 years. Ms. McClure testified that Ms. Laing paid Kristy’s bills and gave Jacob his lunch money and that the Mills did not contribute very much to the support of Kristy and her children. Ms. McClure did acknowledge that the Mills had probably babysat for Kristy between 20 and 50 times over the last 5 years.
J.D. Hardy testified he was John Hardy’s father. He testified he had known Ms. Laing and Kristy all their lives and knew that Kristy’s children had stayed with their grandmother a lot over the years. Mr. Hardy testified that when Jacob and Macy came to his home they would often say then wanted to go to “Nanna’s house”, a phrase they used to refer to Ms. Laing. Mr. Hardy also stated he knew Ms. Laing had provided financial support to Jacob and Macy over the past few years. Mr. Hardy also related that Ms. Laing gets along well with his son, John Hardy.
Kim Boyette testified she was Kristy’s sister. Ms. Boyette stated she sees her mother daily and she saw Kristy and her children almost every day. Ms. Boyette testified that over the past 6 years Kristy and her children primarily resided with her mother and that Ms. Laing paid for the children’s food and clothing. She stated that Kristy had moved out of her mother[’]s home 3 or 4 times, but “she always moved back with Mama”. Ms. Boyette testified Kristy and her children were not as close to Mr. Mills as they were to Ms. Laing. Ms. Boyette testified that Macy and Jacob were really close to her mother and she had seen the Mills show partiality to Macy over Jacob. Ms. Boyette stated that “the kids belong with my Mama.” Ms. Boy-ette began to cry and stated “It’s not that I don’t want my Daddy to have them”.
On cross examination by Mr. Mill’s counsel, Ms. Boyette admitted that Kristy lived with John Hardy and Russell Lippman for several months. Ms. Boyette also testified that sometimes her father would discuss with Mrs. Mills whether or not to give Kristy money and often after the discussion, did not give Kristy money. Ms. Boyette also acknowledged her father was not pleased with Kristy’s relationship with Mr. Hardy or Mr. Lippman.
IfiDonnie Laing testified he was married to Sarah and they had separated in August, 1999[,] but were not divorced. Mr. Laing testified that he knew for the past 6 years Jacob had stayed with Sarah most of the time. He testified the Mills seldom kept the children when he and Ms. Laing lived together; and that Ms. Laing provided a lot of financial support for Kristy and the children. Mr. Laing acknowledged that Ms. Laing was often the primary caretaker for children caring for them more than Kristy. Mr. Laing stated he knew Ms. Laing had taken Jacob and Macy to church and that he had heard her read bible stories to the children.
Gary Wagner testified he was the pastor at Evangeline Baptist Church and had held that position for approximately 1/& years. Reverend Wagner testified he was Jacob’s t-ball coach and before Kristy’s death, Ms. Laing brought Jacob to practice. After Kristy[’]s death Mr. Mills would also bring Jacob to practice. Reverend Wagner also testified that in July, 2000[’] Sarah Laing brought Macy and Jacob to Bible School and she helped with Bible School every night. Revered Wagner stated that he knew Ms. Laing was very attached to the children and “the children loved her like a mother.”
Sarah Laing testified she had rented a four bedroom house in Jonesville with a small back yard. She testified she had not worked since Kristy’s death; and had used her savings and church donations to pay bills for the past few months. Ms. Laing testified that she sits with the elderly and has not worked since March 2000. When she was employed, she worked 7 days and was off for 7 days; and she earned $85.00 per day. Ms. Laing testified she would soon be working in Ferriday which is located about 16 miles from Jonesville. Ms. La-ing testified she desired to obtain custody of all 8 of Kristy’s children so she could “keep the children together”.
When questioned by counsel for the Jollys, Ms. Laing acknowledged she and the Jollys had shared approximately equal custody of Brennon in the past few months. She also acknowledged the Jolly’s love for Brennon and that they take good care of Brennon. In addition, Ms. Laing admitted she had a better relationship with the Jollys than the Mills.
Under cross examination by Mr. Mills’ counsel, Ms. Laing stated she will be 50 years old in September, 2001, that she doesn’t drink but smokes about 1 pack of cigarettes per day, but smokes outside her home. Ms. Laing admitted she had been married 6 times and did not intend to reconcile with Mr. Laing. Ms. Laing admitted she had no health insurance and had depleted her savings. Ms. Laing testified she had kept the children when Kristy worked and she believed the Mills | fi“showed partiality” toward Macy and Jacob felt “left out”. Ms. Laing also testified that she and Mrs. Mills had a few problems and that she became upset when Mrs. Mills enrolled Macy in Head Start without consulting her. Ms. Laing also acknowledged she and Mr. Mills had no problems about the children.
Aaron Jolly testified he is a plumber and a Methodist minister. He stated he has been married to Lisa Lippman Jolly for 19 years and his wife is the sister of Russell Lippman and the paternal aunt of Brennon Lippman. Mr. Jolly testified he and his wife have two children, David, age 15 and Katelin, age 10; and Ms. Jolly is a house wife. Mr. Jolly also testified he and his wife have a four bedroom, three bath home and in 2000 his gross income from his plumbing business was in excess of $110,000. Mr. Jolly testified that he and his wife love Brennon and desire to obtain custody of Brennon.
Mrs. Jolly testified she is a housewife and can care for Brennon. She testified she and her husband are financially able to care for Brennon, and that they love Brennon and desire to obtain custody of Brennon. Mrs. Jolly also testified she gets along well with Ms. Laing and the Mills.

Subsequently, the trial court awarded custody of the children as follows:

1. Brennon Lippman:
A) Joint custody of Brennon Lippman is hereby awarded to Aaron and Lisa Jolly and Sarah Laing, with Aaron and Lisa Jolly being hereby designated as primary, physical and legal custodians. The child shall remain in the physical custody of Aaron and Lisa Jolly at all times except the visitation periods provided hereinbe-low.
B) Sarah Laing shall enjoy physical custody of Brennon Lippman for 4 hours on Tuesday and Friday of every week and on Sunday of every other week.
C) Mickey D. Mills shall enjoy visitations [sic] with Brennon Lippman for a minimum of 8 hours each week when he is home from work, and shall provide 36 hours advance notice to Aaron and Lisa Jolly prior to exercising visitation.
D) Macy Mills and Jacob Hardy shall spend 3 hours each week with Bren-non Lippman, and the parties are ordered to adjust their visitation schedules accordingly.
|7E) From and after such time as Bren-non Lippman shall have attained the age of 3 years, Mickey D. Mills shall enjoy visitation from 9:00 a.m. until 2:00 p.m. on the first Saturday that he is home from work, and Sarah Laing shall enjoy visitation with Brennon Lippman from 9:00 a.m. until 2:00 p.m. on the second Saturday of each month.
F) Aaron and Lisa Jolly and Sarah La-ing must confer with each other to exchange information concerning the health, education and welfare of Brennon Lippman and in making decisions concerning Brennon Lipp-man.
2.Jacob Hardy:
A) Joint custody of Jacob Hardy is awarded to Sarah Laing and Mickey Mills, with Sarah Laing designated primary physical and legal custodian.
B) Sarah Laing shall enjoy physical custody of Jacob Hardy from January 1st through May 30th and from August 1st through December 31st of each year, and Mickey Mills shall enjoy physical custody of Jacob Hardy from June 1st through July 31st each year.
C)During the periods of Sarah Laing’s physical custody of Jacob Hardy, Mickey Mills shall enjoy visitation with Jacob Hardy on the Saturday on the first weekend he is home from work and on the Sunday of the next weekend that he is home from work, from 3:00 p.m. until 6:00 p.m. each Wednesday when he is home from work, and during the following holiday visitation periods:
1. Thanksgiving: From 6:00 p.m. on the day school lets out for Thanksgiving until 5:00 p.m. on Wednesday before Thanksgiving in the even numbered years and from 5:00 p.m. on the day before Thanksgiving until 8:00 p.m. on the day prior to the commencement of school at the end of Thanksgiving holidays in odd numbered years.
2. Easter: From 5:00 p.m. on the Thursday before Easter until 8:00 p.m. on the day prior to school commencing after the Easter holidays in even numbered years and from 5:00 p.m. on the evening school lets out for |SE aster holidays until 5:00 p.m. on the Thursday before Easter in odd numbered years.
3. Christmas: From 5:00 p.m. on the day school lets out for Christmas until 5:00 p.m. on December 26th in even numbered years, and from 5:00 p.m. on December 26th until 8:00 p.m. on the day before school is to resume after New Years in odd numbered years.
4. Child’s Birthday: Beginning in 2004, Mr. Mills shall enjoy visitation with Jacob Hardy on the child’s birthday in even numbered years.
5. Father’s Day: On Father’s Day weekend beginning at 5:00 p.m. on Friday and ending at 8:00 p.m. on Sunday, Father’s Day.
6. Mother’s Day: On Mother’s Day weekend beginning at 5:00 p.m. on Friday and ending at 8:00 p.m. on Sunday, Mother’s Day.
D) Sarah Laing shall enjoy visitation with Jacob Hardy on Mother’s Day weekend and Jacob Hardy’s birthday in 2002 and 2003. Beginning in 2004, Sarah Laing shall enjoy visitation with Jacob Hardy on the Child’s birthday in odd numbered years.
E) John Hardy shall enjoy visitation with Jacob Hardy in the presence of Sarah Laing, Wanda Mills or his sister, Sue Hardy, for a minimum of 10 hours per week, and shall provide 36 hours advance notice to whichever of Sarah Laing or Mickey Mills has physical custody at the time when John Hardy’s visitation is to be exercised.
F) Holiday and Birthday visitation shall supercede any other specified visitation.
3. Macy Mills:
A) Joint custody of Macy Mills is awarded to Sarah Laing and Mickey D. Mills with Sarah Laing being designated primary, physical and legal custodian.
IflB) Sarah Laing shall enjoy physical custody of Macy Mills from June 1st through December 31st of each year, and Mickey Mills shall enjoy physical custody of Macy Mills from January 1st through May 31st of each year.
C) Sarah Laing shall enjoy visitation with Macy Mills from 5:00 p.m. on Friday until 7:00 p.m. on Sunday on the second and fourth weekends of each month that she does not have physical custody and each Tuesday from 3:00 p.m. until 6:00 p.m.
D) Mickey Mills will enjoy the following holiday visitation with Macy Mills.
1. Thanksgiving: From 5:00 p.m. on the day school lets out for Thanksgiving until 5:00 p.m. the Wednesday before Thanksgiving in the even numbered years and from 5:00 p.m. on the day before Thanksgiving until 8:00 p.m. on the day prior to the commencement [of] school at the end of Thanksgiving holidays in odd numbered years.
2. Easter: From 5:00 p.m. on the Thursday before Easter until 8:00 p.m. on the day prior to school commencing after the Easter holidays in even numbered years and from 5:00 p.m. on the evening school lets out for Easter holidays until 5:00 p.m. on the Thursday before Easter in odd numbered years.
3. Christmas: From 5:00 p.m. on the day school lets out for Christmas until 5:00 p.m. on December 26th in even numbered years, and from 5:00 p.m. on December 26th until 8:00 p.m. on the day before school is to resume after New Years in odd numbered years.
4. Child’s Birthday: Mickey Mills shall have visitation of Macy Mills on Macy Mills’ birthday on odd numbered years, and Sarah Laing shall have custody of Macy Mills on Macy Mill’s Birthday on even numbered years.
| in5. Fathers Day: On Fathers Day weekend beginning at 5:00 p.m. on Friday and ending at 8:00 p.m. on Sunday, Fathers Day.
6. Mothers Day: On Mothers Day weekend beginning at 5:00 p.m. on Friday and ending at 8:00 p.m. on Sunday, Mothers Day.
E) John Hardy shall enjoy visitation with Macy Mills in the presence of Sarah Laing, Wanda Mills or his sister, Sue Hardy, for a minimum of 10 hours per week, and shall provide 36 hours advance notice to whichever of Sarah Laing or Mickey Mills has physical custody at the time when John Hardy’s visitation is to be exercised.
F) Holiday and Birthday visitations shall supercede in other specified visitation.

We believe the trial court intended to make the same time arrangement for Macy as it did for Jacob and we, therefore, amend Paragraph 3(B) of the judgment as follows:

B) Sarah Laing shall enjoy physical custody of Macy Mills from January 1st through May 30th and from August 1st through December 31st of each year, and Mickey Mills shall enjoy physical custody of Macy Mills from June 1st through July 31st each year.

ISSUES

Mickey claims that the trial court’s determination of custody, specifically its finding that it would be in the best interest of Jacob, Macy, and Brennon that Sara be designated primary custodian of Jacob and Macy and the Jollys be designated primary custodian of Brennon, was erroneous.

STANDARD OF REVIEW

The law is well settled that the trial court’s finding with regard to custody matters is entitled to great weight on appeal as it is in a superior position to In assess what the children’s best interests are based on its consideration of the testimony of the parties and witnesses. AEB v. JBE, 99-2668 (La.11/30/99), 752 So.2d 756; Miller v. Miller, 01-0356 (La.App. 3 Cir. 10/31/01), 799 So.2d 753. Therefore, the appellate court may only reverse the trial court upon a showing of manifest error or if its finding is clearly wrong. Absent such a showing, the appellate court shall not reverse the trial court regardless of whether its decision would have been different had it been sitting as the trier of fact.

CUSTODY

In all child custody cases, the primary consideration is the best interests of the children. See La.Civ.Code art. 131. Numerous factors are at the trial court’s disposal in making this determination and are set forth in La.Civ.Code art. 134. They include:

(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
1^.(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

However, the trial court is not limited to considering the factors enunciated and should consider the totality of the facts and circumstances in each particular situation. Hawthorne v. Hawthorne, 96-89 (La.App. 3 Cir. 5/22/96), 676 So.2d 619, writ denied 96-1650 (La.10/25/96), 681 So.2d 365.

Mickey argues that primary custody of all three children should be with him. Central to his argument is the fact that Brennon will be raised separately from his half-siblings, Macy and Jacob. Accordingly, we will address the issue of splitting apart siblings first. While it is true that generally, it is preferable to keep siblings together, we are aware that it is not required if the trial court determines that separating them would be in the best interests of the particular children. Wallace v. Wallace, 420 So.2d 1326 (La.App. 3 Cir. 1982). See also Meredith v. Meredith, 521 So.2d 793 (La.App. 2 Cir.1988), Daugherty v. Cromwell, 501 So.2d 955 (La.App. 2 Cir.1987), Price v. Price, 451 So.2d 1187 (La.App. 1 Cir.1984). We do, however, note that all of the above cases dealt with the natural parents of the children at issue rather than grandparents and other collateral relations.

113The seminal case pertaining to the splitting apart of siblings in custody awards is Tiffee v. Tiffee, 254 La. 381, 223 So.2d 840 (1969), which also dealt with the children’s parents. That case stated the rule for split custody as follows:

The separation of children of a family though sometimes necessary, is a custodial disposition that courts seek to avoid. Normally, the welfare of children is best served by leaving them together, so they can have the full benefit of companionship and affection. Wfien feasible, a court should shape its orders to maintain family solidarity.

Id. at 843.

We have held that “the separation of children of a family is a disposition courts should avoid whenever possible. In the absence of unusual circumstances, the children should not be deprived of one another’s comfort and moral support.” R.J.R. v. J.A.I.R.C., 92-1314 (La.App. 3 Cir. 10/6/93), 625 So.2d 374, writ denied, 93-2741 (La.1/7/94), 631 So.2d 450. Finally, the supreme court has recently visited this issue. In Howze v. Howze, 99-0852 p. 3 (La.5/26/99), 735 So.2d 619, 621, the supreme court cited Tiffee with approval before noting that a four year age difference between the children “is not so large as to preclude the children from sharing some similar interests and from deriving great benefit and comfort from living together as part of a family.” The supreme court, in unifying custody to the mother, noted in Howze that the children were full-blooded siblings, that no expert testified to show that separating the children was in their best interests, and that the trial court failed to set forth any reasons why separating the children would alleviate any problems they had.

In this particular case, Brennon is a half-sibling to Macy and Jacob. He also has a half-sibling on his paternal side, an older sister, McKenzie, who is in the custody of her mother and with whom the Jollys are in contact. At the time these luProceedings began, Brennon was approximately two-and-a-half months old. Initially on April 8, 2001, all three children, including Brennon, were placed in the custody of Mickey by an ex parte order of the trial court. Following a pretrial conference on April 12, 2001, the trial court transferred custody of Jacob and Macy to Sara and of Brennon to the Jollys. Bren-non has remained in the custody of the Jollys since that time and, unfortunately, due to his tender age, has not formed any strong lasting bonds with Macy and Jacob. Trial was had on October 8 and 11, 2000, and the matter taken under advisement. Reasons for judgment were rendered January 18, 2002, and judgment was executed on May 13, 2002, as set forth above.

We find that the trial court considered the Article 134 factors in awarding primary custody of Brennon to the Jollys. Based on our review of the record, we hold that the trial court’s award of custody to the Jollys is not clearly wrong or manifestly erroneous, even if we would have held differently. Not only was there an expert witness relied on by the trial court, but the trial court explained that the Jollys were in the best position to facilitate a relationship with Brennon and all of his half-siblings as they got along with all the parties and were also in contact with McKenzie. However, we hold that the trial court was manifestly erroneous in failing to award joint custody to Mickey based on the factors set forth in Article 134, particularly subparts (1), (2), (3), (4), (6), (7), and (12). We feel this is further supported by the fact that the trial court initially placed custody with Mickey and the trial court’s finding that all of the parties “are each responsible and suitable individuals who love these children.”

1! ¡/Moreover, we cannot say that the trial court abused its discretion in awarding Sara primary physical custody of Jacob and Macy. Mickey argues that the trial court did not recognize the clear advantage he has pertaining to the factors enunciated under Article 134. While Mickey goes into great detail explaining the particular advantages and disadvantages each party has, he also correctly states that these factors are not to be mechanically applied by the trial court and that this list is non-exclusive. See Gautreau v. Gautreau, 96-1548 (La.App. 3 Cir. 6/18/97), 697 So.2d 1339, writ denied, 97-1939 (La.11/7/97, 703 So.2d 1272); La.Civ. Code art. 134, comments (a)(b) & (c). Mickey claims that the “trial court did not specifically review the considerations imposed by La.C.C. Art. 134.” However, in its reasons for judgment, the trial court specifically stated that it considered all the factors contained in Article 134 when formulating its custody awards. Again, based on our review of the record and the trial court’s superior position to assess the particular circumstances of the case together with the concessions made by Mickey at oral argument that he and Sara had made an agreement on the sharing of the Jacob and Macy, we cannot say that the trial court was manifestly erroneous in awarding Sara primary physical custody of Jacob and Macy. The trial court found that Jacob and Macy had a very strong bond with Sara, who has been involved in their day-to-day rearing for the greater portion of their lives. Further, it appears that the trial court relied on the testimony of Kim Boyette, J.D. Hardy, Cheryl McClure, and Donnie Laing, rather than Mickey’s numerous witnesses in making its decision. We further note that it was abundantly clear from the record that all the parties involved have a deep affection for these three young children, but regardless of how we would have decided matters at the trial 11filevel, we cannot say the trial court committed manifest in its decision in making Sara the domiciliary custodian.

The trial court’s custody award attempts to provides ample time for Brennon to develop a relationship with his half-siblings as he grows up, but it falls woefully short of accomplishing its goal. As such, we find that the trial court’s visitation plan as it relates to Brennon was manifestly erroneous/clearly wrong. The trial court recognized that all the parties “are each responsible and suitable individuals who love these children.” With that in mind and in accordance with the rule of law set forth in Tiffee, we find that the plan should provide for significantly more visitation of the siblings. Because Sara did not appeal and the custody of McKenzie is not before us, we cannot adjust those arrangements. We are, therefore, constrained to deal only with the visitation arrangement between Brennon and Mickey and the Jollys. Accordingly, we amend the trial court’s judgment in the following respects:

DECREE

IT IS ORDERED, ADJUDGED AND DECREED that the judgment of the trial court be amended to read as follows:

1. Brennon Lippman:
A)Joint custody of Brennon Lippman is hereby awarded to Aaron and Lisa Jolly, Sarah Laing, and Mickey Mills, with Aaron and Lisa Jolly being hereby designated as primary, physical and legal custodians. The child shall remain in the physical custody of Aaron and Lisa Jolly at all times except the visitation periods provided hereinbelow.
B) Sarah Laing shall enjoy physical custody of Brennon Lippman for 4 hours on Tuesday and Friday of every week and on Sunday of every other week. Jacob and Macy shall |17be present for these visits.
C) Mickey D. Mills shall enjoy visitation with Brennon Lippman for a minimum of 24 hours each week when he is home from work, and shall provide 36 hours advance notice to Aaron and Lisa Jolly prior to exercising visitation. Jacob and Macy shall be present for these visits.
D) Deleted
E) -From-and after such time as Bren-non Lippman shall have attained the age-of 3 years, Mickey D. Mills shall enjoy visitation from 9:00 a.m. on the first Saturday that he is home from work until 6:00 p.m. on Sunday, and Sarah Laing shall, enjoy visitation with Brennon Lippman from 9:00 a.m. until 2:00 p.m. on the second Saturday of each month.
G) Mickey Mills shall enjoy visitation with Brennon Lippman from June 1st through July 31st of each year.
H) Aaron and Lisa Jolly shall have custody of Brennon Lippman every other weekend during the period set forth in Paragraph (G) above from 9:00 a.m. on Saturday until 6:00 p.m. on Sunday. This weekend custody shall coincide with the weekend visitation afforded Sara Laing during this same period.
I) Mickey Mills shall enjoy visitation with Brennon Lippman during the following holiday visitation periods:
1. Thanksgiving: From 5:00 p.m. on the day school lets out for Thanksgiving until 5:00 p.m. on Wednesday before Thanksgiving in the even numbered years and from 5:00 p.m. on the day before Thanksgiving until 8:00 p.m. on the day prior to the commencement of school at the end of Thanksgiving holidays in odd numbered years.
2. Easter: From 5:00 p.m. on the Thursday before Easter until 8:00 p.m. on the day prior to school commencing after the Easter holidays in even numbered years and from liS5:00 p.m. on the evening school lets out for Easter holidays until 5:00 p.m. on the Thursday before Easter in odd numbered years.
3. Christmas: From 5:00 p.m. on the day school lets out for Christmas until 5:00 p.m. on December 26th in even numbered years, and from 5:00 p.m. on December 26th until 8:00 p.m. on the day before school is to resume after New Years in odd numbered years.
4. Child’s Birthday: Beginning in 2004, Mr. Mills shall enjoy visitation with Jacob Hardy on the child’s birthday in even numbered years.
5. Father’s Day: On Father’s Day weekend beginning at 5:00 p.m. on Friday and ending at 8:00 p.m. on Sunday, Father’s Day.
6. Mother’s Day: On Mother’s Day weekend beginning at 5:00 p.m. on Friday and ending at 8:00 p.m. on Sunday, Mother’s Day.

We further replace Paragraph 3(B) to read as follows:

Sara Laing shall enjoy physical custody of Macy Mills from January 1st through May 30th and from August 1st through December 31st of each year, and Mickey Mills shall enjoy physical custody of Macy Mills from June 1st through July 31st each year.

The judgment is affirmed in all other respects.

All costs of this appeal are assessed one half to Mickey DeWayne Mills and one half to Aaron and Lisa Jolly.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

PETERS, J., concurs in the result.

      . Mrs. Laing’s first name is spelled "Sarah” throughout the trial court’s opinion, we note that the correct spelling is "Sara.”


source: Caselaw Access Project

author: | THIBODEAUX, Judge.

license: Public Domain

text:
    Hollie LEE, et al. v. FARMERS INSURANCE EXCHANGE, et al.
    No. 02-933.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2003.

      Anthony Craig Dupre, Attorney at Law, Ville Platte, LA, for Plaintiffs/Appellees— Hollie Lee, et al.
    Michael J. Breaux, E. Gregory Voorhies Law Office, Lafayette, LA, for Defendants/Appellants — Farmers Insurance Exchange, et al.
    Court composed of ULYSSES GENE THIBODEAUX, BILLIE COLOMBARO WOODARD and GLENN B. GREMILLION, Judges.
   | THIBODEAUX, Judge.

In this suit to recover damages sustained in an automobile accident, the defendants, Christopher Fontenot and his insurer Farmers Insurance Exchange (Farmers), appeal the trial court’s general damage award of $15,000.00 in favor of the plaintiff, Hollie Lee. The defendants contend that the general damage award is excessive. We disagree and affirm.

I.

ISSUE

The sole issue in this case is whether the trial court abused its discretion in awarding Ms. Lee a general damage amount of $15,000.00 where she suffered soft tissue damages in the cervical area of her back, lumbar strain and temporomandibular joint disorder (TMJ) as a result of a vehicular collision with Mr. Fontenot.

II.

FACTS

On October 26, 2001 in Ville Platte, Louisiana, Ms. Lee was driving a 1999 Mitsubishi ECL sedan westbound on Highway 167 with her four-month-old son as a guest passenger. At the same time, Mr. Fonte-not was driving a 1998 Dodge Sedan. Mr. Fontenot turned his vehicle left in front of Ms. Lee’s vehicle causing the right side of Ms. Lee’s vehicle to hit the right side of Mr. Fontenot’s vehicle. Although the impact did not cause the air bag to release, it did cause Ms. Lee to hit her head on the car’s steering wheel. Ms. Lee’s son was also injured; however, the general damage amount awarded by the trial court for his injuries is not contested by the defendants.

| ¡After the accident, Ms. Lee and her son were taken by ambulance to the emergency room of the Ville Platte Medical Center. At the hospital, she was examined and had x-rays performed on her neck. Ms. Lee was also given medication and subsequently released from the hospital. She continued to experience pain in her neck and lower back as well as headaches and jaw pain. On October 29, 2001, Ms. Lee sought treatment from Dr. Charles Edward Fontenot, a general practitioner.

Dr. Fontenot found that Ms. Lee had muscle spasms in her neck and tenderness of her jaw. As a consequence of her jaw tenderness, Dr. Fontenot found that Ms. Lee had pain with chewing and diagnosed her with TMJ. Ms. Lee’s mid-back examination revealed that she had tenderness of her muscles and inter-scapula region. She also had pain with forward flexion of the thoracic spine. With respect to Ms. Lee’s lumbar spine region, Dr. Fontenot found that she had tenderness and pain with motion. Dr. Fontenot concluded that Ms. Lee suffered from “muscle and soft tissue injuries involving the neck, acute cervical strain, muscle and ligamentous injuries of her lumbar spine, acute lumbar strain ... also acute mid-back strain and [TMJ] sprain.” Dr. Fontenot prescribed muscle relaxant medication, analgesics and liniment applications for her neck and back.

At her next examination by Dr. Fonte-not, Ms. Lee continued to complain of pain in her neck, back and jaw. He recommended that she start physical therapy. She was prescribed the same medications as prescribed during her first visit. At the beginning of her physical therapy, Dr. Jerry Chamberlain noted that Ms. Lee’s range of motion was only at forty percent. Ms. Lee treated with Dr. Fontenot for approximately five weeks. She attended eight sessions of physical therapy. Dr. Fontenot testified that he did not refer Ms. Lee to any type of TMJ treatment because over the several weeks that she treated with him, that problem seemed to get better.

| ¡¡During the time that Ms. Lee received treatment for her injuries in her accident, she continued to work thirty-two hours per week at Blake’s Pharmacy. However, Dr. Fontenot testified that although she was able to work, she did so in a lot of pain. Ms. Lee explained that as a single mother of two children, she could not afford to take any time off from work. Dr. Fonte-not released Ms. Lee from treatment on December 7, 2001. She testified that even after the release, she still experienced back pain and headaches. At the trial of this matter on May 21, 2002, she still had backaches and had to have backrubs and use heating pads to alleviate the pain.

After finding that Mr. Fontenot was one-hundred percent at fault in causing the accident, which the parties do not contest in the present appeal, the trial court found that Ms. Lee sustained “a whip lash injury as well as a back injury, injury to the temporomandibular joint as well as ... bruises and no lacerations.” The court awarded Ms. Lee $2,282.79 for medical expenses. With respect to general damages, the trial court initially found that Ms. Lee was entitled to $10,000.00 for her pain and suffering. Next the trial court stated: “The [e]ourt reconsiders the $10,000.00 and awards $15,000.00. I tend to think very conservatively sometimes but I’m gonna award $15,000.00 for the damages for pain and suffering.” It is from this ruling that Mr. Fontenot and Farmers appeal asserting that the trial court abused its discretion in awarding an excessive amount for Ms. Lee’s pain and suffering.

III.

LAW AND DISCUSSION

Mr. Fontenot and Farmers contend that general damages in the amount of $15,000.00 awarded to Ms. Lee for essentially what amounts to soft-tissue injury, is excessive and that the failure to award a lower amount was an abuse of the trial court’s discretion.

RThe standard for an appellate court’s review of damages was well established in Reck v. Stevens, 373 So.2d 498 (La.1979) and was confirmed in Youn v. Maritime Overseas, Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Suffice it to say, we will not disturb a trial court’s award of damages unless we find that the award constitutes an abuse of the trial court’s discretion. After carefully reviewing the record, we find that the trial court did not abuse its great discretion in awarding Ms. Lee $15,000.00 for her pain and suffering.

Defendants make much of the fact that Ms. Lee was treated by Dr. Fontenot for her injuries subsequent to the accident for only five weeks. They also make much of the fact that she continued to work her thirty-two-hour-per-week job. As noted above, Dr. Fontenot explained that Ms. Lee worked in pain. Also, Ms. Lee explained that as a single mother, she had to work to support two minor children, one still an infant. Further, at the time of trial, almost seven months after the accident, Ms. Lee was still experiencing pain and basically taking care of her pain without medical intervention by use of back rubs and the application of heating pads. The trial court judge was in the best position to judge Ms. Lee’s credibility, demeanor and mannerisms while in court and while testifying. Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review. Canter v. Koehring, 288 So.2d 716 (La.1973). Apparently, the trial court found that despite the fact that Ms. Lee suffered soft-tissue type injuries and had a relatively short medical treatment period, she was continuing to suffer from pain as a result of the accident.

J¿V.

CONCLUSION

For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to defendants-appellants, Christopher Fontenot and Farmers Insurance Exchange.

AFFIRMED.

WOODARD, J., dissents.


author: It THIBODEAUX, Judge.

text:
    Ruby GASPARD v. DOLLAR GENERAL CORPORATION.
    No. 02-1180.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2003.

      Michael Meunier, Sullivan, Stolier & Re-sor, New Orleans, LA, for Defendant/Ap-pellee-Dollar General Corporation.
    Randall Scott lies, Lafayette, LA, for Plaintiff/Appellan1>-Ruby Gaspard.
    Court composed of NED E. DOUCET, JR., C.J., ULYSSES GENE THIBODEAUX, and ELIZABETH A. PICKETT, Judges.
   It THIBODEAUX, Judge.

In this workers’ compensation case, plaintiff, Ruby Gaspard, appeals a judgment of the Office of Workers’ Compensation (OWC) in favor of defendant Dollar General Corporation (Dollar General) denying to her supplemental earnings benefits (SEBs), costs for prescription drugs prescribed by her physician, and attorney fees based on Dollar General’s failure to pay SEBs and prescription drug costs she incurred. The workers’ compensation judge (WCJ) concluded Ms. Gaspard did not carry her burden of proving that she was unable to earn ninety percent of her former wages and thus was not entitled to SEBs or additional medical benefits. Finding that Dollar General was not arbitrary and capricious in the handling of Ms. Gaspard’s case, the WCJ denied awards for attorney fees and penalties.

For the following reasons, we affirm the WCJ’s decision with respect to the denial of SEBs. However, with respect to the additional medical benefits, specifically the payment of Ms. Gaspard’s prescription drug costs, we reverse and award both attorney fees and penalties for Dollar General’s failure to pay those benefits.

Evidence that on May 28, 1998, Ms. Gaspard sustained injuries while in the course and scope of her employment is well-supported and is not in dispute. However, the continuing extent of her damages and the effect those damages have on her ability to work earning ninety percent of her pre-injury wages is in dispute. Ms. Gaspard’s need to continue taking medications for those injuries, regardless of her earning capacity, entitles her to medical benefits. Dollar General did not reasonably controvert this claim. We, therefore, find that Ms. Gaspard is entitled to an award of penalties in the amount of $2,000.00 and attorney fees in the amount of $5,000.00 total for work done at trial and on this appeal.

_L¡i-

ISSUES

We shall consider the following issues on appeal:

(1) whether the WCJ erred in failing to award supplemental earnings benefits as of August 7, 2000, and following;
(2) whether the WCJ erred in failing to address or award pharmaceutical costs for prescriptions that have been prescribed by the treating physician; and,
(3) whether the WCJ erred in failing to award attorney fees associated with both the failure to pay SEBs and the pharmaceutical costs incurred by Ms. Gaspard.

II.

FACTS

Ms. Gaspard was employed as an assistant manager at a Dollar General store in Abbeville, Louisiana. On May 23, 1998, while moving a shelf from the back wall of the store, a battery from an overhead exit sign fell and struck the back of her head and her right shoulder. Initially, Dollar General accepted Ms. Gaspard’s workers’ compensation claim as compensable and began paying her medical expenses as well as temporary total disability (TTD) benefits. Ms. Gaspard filed a claim in 2001 disputing the amount Dollar General paid in TTD benefits asserting that the amount was too low. She also claimed that she should have been paid SEBs through the date of August 7, 2000. On July 26, 2001, Dollar General and Ms. Gaspard entered into a compromise agreement where Dollar General paid $3,800.00 in back due compensation benefits and $2,500.00 in attorney fees.

Subsequently, on August 31, 2001, Ms. Gaspard filed another petition for workers’ compensation benefits. In that complaint Ms. Gaspard sought SEBs for |3the time after August 7, 2000. She also complained that Dollar General paid for her treatment by Dr. Joseph Gillespie, but did not pay for the medication he prescribed that helped to alleviate the symptoms she experienced as a result of her 1998 work-related accident.

A trial of this matter was held on March 26, 2002. Dollar General stipulated to the occurrence of Ms. Gaspard’s accident as well as her average weekly wage rate of $240.05, with a corresponding monthly wage rate of $1,032.22. Ms. Gaspard testified that she remained in pain and paid for prescription medicine out of her own pocket. With respect to her claim for SEBs, Ms. Gaspard presented the records of Dr. Gillespie that restricted her to sedentary and light activity. Dollar General showed that Ms. Gaspard’s doctors failed to restrict the number of hours that she could work. Further, Dollar General offered Ms. Gaspard the opportunity to return to her former employment at her former salary level. She refused. Eventually, Ms. Gaspard returned to work as a clerk at the store, but she voluntarily chose to work less hours than that available to her.

Also at trial, Dollar General contended that it was unnecessary for Ms. Gaspard to continue seeing her doctor or to even be prescribed medication as she had reached maximum medical improvement (MMI). The WCJ agreed with Dollar General and ruled in favor of Dollar General on all issues. It is from this decision that Ms. Gaspard appeals.

Jin.

LAW AND DISCUSSION

Supplemental Earnings Beneñts

In Palmer v. Schooner Petroleum Services, 02-397, pp. 11-12 (La.App. 3 Cir. 12/27/02); 834 So.2d 642, 650-51, we stated the following with respect to a claimant’s entitlement to SEBs:

Integral to an employee’s claim for SEBs is his proof by a preponderance of the evidence that he is disabled due to a work-related injury that rendered him unable to earn ninety percent of his pre-injury wages. “In determining if an injured employee has made out a prima facie case of entitlement to supplemental earnings benefits, the trial court may and should take into account all those factors which might bear on an employee’s ability to earn a wage.” Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1007 (La.1989); La.R.S. 23:1221(3)(a). Once the employee seeking SEB establishes his prima facie case, the burden shifts to the employer to show that the employee is physically capable of work and that the work was offered or available in the employee’s or employer’s community or reasonable geographic region. La.R.S. 23:1221(3)(c)(i). If the employer meets this burden of proof, then the employee must show by clear and convincing evidence, unaided by any presumption of disability, that he is unable to perform the employment offered or available solely as a consequence of substantial pain. La.R.S. 23:1221(3)(c)(ii); Moore v. Sanderson Farms, Inc., 95-2042, p. 8 (La.App. 1st Cir.5/10/96); 674 So.2d 478, 483, writ denied, 96-1399 (La.9/13/96); 679 So.2d 106.

Essentially, Dollar General argues that it is Ms. Gaspard’s refusal to accept employment that fits within her limitations which is made available to her that precludes an award of SEBs. In other words, “[t]he SEB statute does not permit a claimant to choose not to work and still collect SEB when he is physically able to work and jobs are available.” Blanchard v. Federal Express Corp., 95-0349, p. 13 (La.App. 1 Cir. 11/9/95); 665 So.2d 11, 13.

IfiDollar General has not paid Ms. Gas-pard SEBs since August 8, 2000. She testified that over the past two years, she was treated by Dr. Gillespie, a pain management physician. Her treatment consisted of injections into trigger points in her muscles behind her neck. Ms. Gaspard further testified that she sees Dr. Gillespie once a month. Dr. Gillespie also prescribed medications to treat Ms. Gaspard’s pain. Dollar General did not pay for those medications. Ms. Gaspard also testified she believed Dollar General continued to pay her medical expenses related to her visits to Dr. Gillespie’s office.

Subsequent to her August 2000 workers’ compensation settlement, Ms. Gaspard worked for Dollar General on a light duty basis as prescribed by her doctor. She testified that she is unable to do any heavy or overhead lifting. Ms. Gaspard also testified that she is not working the same number of hours that she worked previous to her accident. Dollar General limited her working hours to sixteen to twenty-two hours per week although her salary is higher than the other employees. However, at trial, Dollar General produced records revealing that sometimes Ms. Gas-pard works twenty-seven hours per week. Dollar General also offered her eight-hour per day work hours which she refused. Ms. Gaspard testified that she once worked an eight-hour day, but told her supervisor that she could not continue to work eight hours per day. Further, Ms. Gaspard admitted that none of her doctors, all chosen by her, ever disabled her from working and that, with the exception of Dr. Gillespie, all of her 'doctors have- discharged her from their care. Most importantly, none of her doctors restricted the number of hours that Ms. Gaspard could work. The only restriction placed on Ms. Gaspard’s work ability is the type of work she is able to do.

At the time of trial, Ms. Gaspard was working at a Dollar General store between sixteen and twenty-seven hours per week at a rate of $6.50 per hour. At the | fitime of her injury, she was paid $5.95 per hour. She also admitted that Dollar General is accommodating her physical restrictions by not requiring her to unload the delivery truck, lift anything over twenty pounds, or lift anything above her shoulders. On March 24, 1999, Ms. Gaspard’s physical medicine and rehabilitation doctor, Dr. Normand Anseman, released her for “full-work activities.” It was at that time Dollar General offered Ms. Gaspard the opportunity take a certification test so that she could return to her position as an assistant manager. Ms. Gaspard refused to take the written exam and shortly thereafter, Dollar General hired another assistant manager. Another of Ms. Gas-pard’s doctors, Dr. Ric Leoni, a neurosurgeon, returned her to work on September 1, 1999, to light-duty work. He put no restrictions on the number of hours Ms. Gaspard could work. In a letter dated March 17, 2000, Dr. Gillespie noted that Ms. Gaspard had reached maximum medical improvement and has permanent restriction to light-duty work. In a June 12, 2000, letter to Dollar General, Dr. Gillespie indicated that Ms. Gaspard could work a forty-hour week. The doctor said the same with respect to the number of hours Ms. Gaspard could work in an August 18, 2000, letter to Dollar General.

Marian Arabie, the Dollar General assistant manager at the store at the time of Ms. Gaspard’s accident and at the time of trial testified regarding Dollar General’s offer of work. With respect to the assistant manager certification test, Ms. Arabie testified that it is only a two hour test and that Ms. Gaspard was offered the opportunity to take it several times, but refused, stating that she could not sit for two hours. Ms. Arabie’s testimony on the length of the test was contrary to that of Ms. Gas-pard who testified that it is a four hour test. Ms. Gaspard testified that Dollar General did not offer her more hours. To the contrary, Ms. Arabie testified that she offered to allow her to work all day on Sundays, but Ms. Gaspard told her she could [7not work a full day. Because Ms. Gaspard refused to work a full day on Sundays, Ms. Arabie had to split the day with another employee. Ms. Arabie offered Ms. Gaspard a full day work several times and she testified that Ms. Gaspard’s response was always that she could not work a full day. She further testified that Ms. Gaspard’s refusal makes it difficult for her to work a forty-hour week.

The OWC concluded that Ms. Gas-pard failed to make out a prima facie case of her entitlement to SEBs. We agree. Ms. Gaspard’s physical restriction is that she do only light-duty work. Her treating physician did not limit the number of hours she could work in a day. Dollar General offered more work hours, but she refused its offer. “[A]n employee is not entitled to supplemental earnings benefits when an employee has been released by his treating physician to engage in light-duty work and has refused his employer’s offer of a light-duty position.” Bolton v. Grant Parish Sch. Bd., 97-1161, p. 5 (La.App. 3 Cir. 3/6/98); 709 So.2d 979, 982, writ granted, 98-1430 (La.9/4/98); 723 So.2d 425, modified by, 98-1430 (La.3/2/99); 730 So.2d 882, on other grounds, (citing Fusilier v. Slick Construction Company, 94-11(La.App. 3 Cir. 6/1/94); 640 So.2d 788). Unlike the plaintiff in Bolton, had Ms. Gaspard not refused Dollar General’s offer to work additional hours, she would have been earning the same wages she earned pre-injury. Thus, the OWC did not err in its conclusion that Ms. Gaspard was not entitled to supplemental earnings benefits.

Payment of Pharmaceutical Costsl Penalties and Attorney Fees

Ms. Gaspard contends that the WCJ erred in failing to award penalties and attorney fees for Dollar General’s failure to pay for drugs prescribed by her treating physician, Dr. Gillespie. Ms. Gas-pard argued at trial that because Dollar General paid for her treatment by Dr. Gillespie, it did not reasonably controvert her need for medicine he prescribed in connection with her treatment.

1 sWe note that the WCJ failed to address the issue of Dollar General’s liability for payment of Ms. Gaspard’s pharmaceutical costs for prescription medicines ordered by her treating physician. Ms. Gaspard submitted prescription medicine expenses in the amount of $521.77. It is well settled that a written judgment, silent as to an issue, is to be construed as a rejection of the relief requested on that issue. Danzey v. Evergreen Presbyterian Ministries, 95-167 (La.App. 3 Cir. 6/7/95); 657 So.2d 491.

Penalties and attorney fees do not automatically result from an employer’s erroneous failure to pay benefits. Miles v. F.D. Shay Contractor, Inc., 626 So.2d 74 (La.App. 3 Cir.1993). The statutes only authorize such penalties and attorney fees where the employer does not reasonably controvert the claim. The provisions are penal in nature and must be strictly construed so that employers are not penalized for contesting a close factual question in a workers’ compensation proceeding and relying on valid defenses. Id. However, in Stegall v. J & J Exterminating, 94-1279, p. 6 (La.App. 3 Cir. 3/1/95); 651 So.2d 400, 403, we held that an employer “may not proceed with an attitude of indifference to the injured worker’s situation.” An unjustified belief that an injury did not result from an accident does not excuse a failure to pay workers’ compensation benefits. Nelson v. Roadway Express, Inc., 588 So.2d 350 (La.1991). The determination of whether an employee may be awarded penalties and attorney fees is a question of fact which we will not disturb on appeal absent a finding of manifest error. Lyons v. Bechtel Corporation and AIU, 00-0364 (La.App. 3 Cir. 12/27/00); 788 So.2d 34, writ denied, 787 So.2d 966 (La.3/23/01). A review of the record supports our conclusion that Dollar General did not reasonably controvert Ms. Gaspard’s assertion that it unreasonably failed to pay for prescribed medications.

19P ollar General maintains that its decision not to pay for Ms. Gaspard’s prescription medicines was made because there was no need for her to continue seeing Dr. Gillespie. Furthermore, her need for the medication was due to her physical de-conditioning as opposed to any injuries that resulted from her 1998 work-related accident. To further support its position that Ms. Gaspard is not entitled to have her prescription medication paid by Dollar General, it relied upon physician reports dated prior to August 7, 2000, noting that Ms. Gaspard had reached maximum medical improvement. However, there was no evidence that Ms. Gaspard did not continue with some sort of residual injuries from the accident.

The only evidence presented at trial was Ms. Gaspard’s testimony and medical records indicating that she continued treating with Dr. Gillespie subsequent to August 7, 2000, the date of the settlement agreement. Ms. Gaspard testified that Dr. Gillespie continued to prescribe medications and treat her for pain related to her 1998 on-the-job accident. Dollar General did not present any evidence, other than pre-2000 medical records, to refute Ms. Gaspard’s evidence that her treatment by Dr. Gillespie resulted from the work accident. Dollar General did not pay for the drugs prescribed by Dr. Gillespie nor did it reasonably controvert Ms. Gas-pard’s necessity for the medication and its failure to do so. Further, it appears that the WCJ committed an error of law when she implied that Ms. Gaspard’s failure to prove that she could not earn ninety percent of her pre-injury wages is somehow connected to her entitlement to payment of additional medical benefits when she stated in the judgment that “The employee ... did not carry her burden of proving that she is unable to earn 90% of her former wages; hence [she] is not entitled to SEB nor additional medical benefits.” (Emphasis added). A claimant’s non-entitlement to SEBs does not equate to non-entitlement to medical benefits. To the extent the WCJ’s judgment concludes |insuch a connection exists, we find it to be error. Thus, we find that the WCJ erred in failing to award penalties and attorney fees for Dollar General’s failure to authorize payment of Ms. Gaspard’s prescription medications. Therefore, pursuant to La. R.S. 23:1201, we award Ms. Gaspard $2,000.00 in penalties, attorney fees of $3,000.00 for work done at trial and attorney fees of $2,000.00 for work done on this appeal. We also award Ms. Gaspard the amount of her proven prescription medical expenses of $521.77.

IV.

CONCLUSION

For the reasons assigned, the judgment appealed from is affirmed insofar as it holds that Ms. Ruby Gaspard is not entitled to workers’ compensation supplemental earnings benefits. The OWC judgment is reversed and set aside insofar as it holds that Ms. Ruby Gaspard is not entitled to payment for medicines prescribed by her treating physician and in failing to find that Dollar General Corporation did not reasonably controvert Ms. Ruby Gaspard’s entitlement to prescription medicine expenses. We amend the judgment and order that there be judgmeni in favor of Ms. Ruby Gaspard and against Dollar General Corporation in the sum of $2,000.00 for penalties and $3,000.00 in attorney fees for work done at trial and $2,000.00 in attorney fees for work done on this appeal as well as the cost of her prescription medicine expenses in the amount of $521.77. Costs of this appeal are to be borne by Dollar General Corporation.

AFFIRMED IN PART, REVERSED IN PART, AMENDED IN PART, AND RENDERED.


author: hEZELL, Judge.

text:
    Ronald HILTS v. WAL-MART STORES, INC.
    No. 02-1440.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2003.

      Frank A. Flynn, Allen, Gooch, et al, Lafayette, LA, for Defendant/Appellant, Wal-Mart Stores, Inc.
    Chuck David Granger, Morrow, Morrow, Ryan & Bassett, Opelousas, LA, for Plain-tiffiAppellee, Ronald Hilts.
    Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and BILLY HOWARD EZELL, Judges.
   hEZELL, Judge.

Wal-Mart Stores, Inc. appeals a workers’ compensation judgment which held that Ronald Hilts, Jr., suffered an accident in the course and scope of his employment which caused injuries to his back, thereby entitling him to benefits. Wal-Mart asserts as error the workers’ compensation judge’s (WCJ) award of disability benefits, claiming it made a job offer to Hilts within his work restrictions on November 22, 2000. Hilts answered the appeal, contesting the WCJ’s determination of benefits and seeking penalties and attorney’s fees.

FACTS

During his senior year in high school, Hilts got a job working at Wal-Mart in Eunice. He worked from 4:00 in the afternoon until 10:00 p.m. Hilts worked in receiving, and his duties included unloading the merchandise from the trucks and transporting the freight to the floor. Hilts would also help customers when needed.

Hilts testified that on August 29, 2000, he was taking freight to the floor when a customer asked for help with an air conditioner. He took the customer to the seasonal section where he removed an 18,000 BTU air conditioner. The box was busted, so he removed another air conditioner and put that one back on the shelf. It was when Hilts picked up the second air conditioner that he felt something pop in his back. He testified that he did not feel pain at the time.

When Hilts awoke the next morning to get ready for school, he could not move. Hilts went to work that day and reported the accident to his supervisor, Troy Folse. Folse assigned him light-duty work that day. Hilts reported the accident to Dwayne Menard on September 4 and filled out an accident report at that time.

A hearing was held on July 26, 2002. The WCJ determined that Hilts did suffer an accident in the course and scope of his employment. Supplemental earnings | ^benefits were awarded from August 29, 2000 to October 24, 2000. Temporary total benefits were awarded from October 24, 2000 to the date of trial. The judgment also provided that Wal-Mart was entitled to a credit for any indemnity benefits and actual wages paid, and that medical benefits were owed. Penalties and attorney’s fees were denied.

ACCIDENT

In order to establish a claim for workers’ compensation benefits, a claimant must establish by a preponderance of the evidence that an accident occurred during the course and scope of his employment, the accident caused his injuries, and the injury caused his disability. Dore v. Sydra/n Food Servs. II, L.P., 01-728 (La.App. 3 Cir. 10/31/01), 799 So.2d 825. “[A] worker may meet this burden by his testimony alone if no other evidence discredits or casts serious doubt upon the claimant’s story and the testimony is corroborated by the circumstances following the accident.” Riley v. Int’l Maintenance Corp., 01-481, p. 2 (La.App. 3 Cir. 10/3/01), 796 So.2d 874, 875-76, writ denied, 01-2890 (La.1/25/02), 807 So.2d 837. The manifest error-clearly wrong standard governs an appellate court’s review of a WCJ’s determination that there was a work-related accident. Id.

Wal-Mart argues that the WCJ erred in finding that an accident occurred, claiming that Hilts injured his back while working at McDonald’s in 1999 and in a fight at the family-run barbeque restaurant, Jazzco, in October 2000. We find that the evidence in the record clearly establishes just the contrary.

Hilts was injured while working at McDonald’s in January 1999. The evidence establishes that he fell, causing his right hand and wrist to slam against the freezer. This caused swelling and pain in his right hand. Hilts was diagnosed with a severe sprain of the right hand and carpal tunnel syndrome. There is no evidence that he |3suffered with any back problems as a result of the McDonald’s accident.

The Jazzco incident is initially confusing considering the fact that Hilts is named after his father Ronald Hilts, Sr. However, the evidence in the record establishes that it was Senior that was involved in an altercation at Jazzco and that Junior was not even at the restaurant until the incident was over.

The evidence clearly establishes that Hilts injured his back when lifting an air conditioner while working at Wal-Mart. He reported the incident to his immediate supervisor, Folse, who verified Hilts’ testimony. Folse also testified that Hilts did not complain about back pain before this incident. The WCJ was correct in finding that Hilts suffered a work-related accident.

SUPPLEMENTAL EARNINGS BENEFITS

Hilts contends that the trial court erred in awarding supplemental earnings benefits (SEB) from the date of the accident until October 24, 2000. Hilts claims that he is entitled to temporary total disability benefits (TTD) from the date of the accident, given that his medical condition was evident from when he was injured that date forward.

Louisiana Revised Statute 23:1221(l)(a) provides that an employee is entitled to TTD when an injury disables an employee from engaging in any self-employment or occupation for wages “whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, or experience.... ” “An employee is not entitled to collect either temporary total disability or permanent total disability when he is physically able to engage in any employment.” Spencer v. Gaylord Container Corp., 96-1230, p. 5 (La.App. 1 Cir. 3/27/97), 693 So.2d 818, 822.

14At Wal-Mart’s request, Hilts initially saw Dr. Brian Heinen when he reported his injury. Dr. Heinen first examined Hilts on September 5, 2000. At that time Dr. Heinen returned Hilts to light-duty work with no lifting. On September 13, 2000, Dr. Heinen excused Hilts from work for one week.

Hilts also saw Dr. Elemer Raffai, who had previously treated Hilts when he was injured at McDonald’s. As of September 7, 2000, Dr. Raffai recommended light-duty work with minimal lifting. At the October 10, 2000 office visit with Dr. Raf-fai, an MRI indicated a disc protrusion to the right paracental L5-S1 which Dr. Raf-fai noted corresponded to the clinical findings. However, it was not until October 24, 2000, that Dr. Raffai decided that Hilts should not work because Hilts indicated the pain was so severe that he could not tolerate fight duty.

Hilts’ employment records indicate that he worked intermittently, although not for long periods, during this time period, with his last day on October 17, 2000. Based on the above evidence, we cannot say that the WCJ was manifestly erroneous in finding that Hilts was entitled to SEB from the date of the accident until October 24, 2000.

EMPLOYMENT OFFER

Wal-Mart claims the WCJ erred when it awarded disability benefits following its November 22, 2000 offer of modified work duties within Dr. Raffai’s work restrictions. Hilts admits that Dr. Raffai released him to return to strict sedentary work but only after repeated tries by Wal-Mart to secure the release.

[T]he issue of disability presents a legal, not purely a medical, question which must be determined after considering all of the medical and lay testimony in the record. In other words, the [WCJ] determines whether a claimant has met his burden of proving disability only after weighing all the medical and lay testimony. Thus, the issue of disability is a factual determination. Factual findings of a[WCJ] may not be disturbed by an appellate court unless the factual findings are manifestly erroneous or clearly wrong. In order for an appellate court to set aside Ra [WCJ’s] factual finding, the appellate court must conclude from the record, viewed in its entirety, that a reasonable factual basis did not exist for the [WCJ’s] finding and that this finding is clearly wrong.

Fritz v. Home Furniture-Lafayette, 95-1705, pp. 3-4 (La.App. 3 Cir. 7/24/96), 677 So.2d 1132, 1134 (citations omitted).

A claimant may prove an inability to engage in gainful employment due to substantial pain. The presence of pain without proof that this pain is substantial enough to make the pursuit of gainful employment an impossibility is inadequate under La.R.S. 23:1221(1). Whether the claimant’s pain is substantial enough is a question of fact to be determined by the totality of circumstances. Furthermore, the factual conclusions of the trial court are entitled to great weight and will not be reversed absent manifest error. To meet his burden of proving entitlement to TTD benefits by clear and convincing evidence, a claimant must provide objective medical evidence of the disabling injury.

Aymond v. R.J. Jones & Sons, 96 — 443, pp. 7-8 (La.App. 3 Cir. 11/20/96), 690 So.2d 769, 774 (citations omitted).

Wal-Mart’s accident file contains a notice from Dr. Raffai that, as of his examination of Hilts on November 14, 2000, he did not want Hilts working for a period of two weeks. However, two days later, on November 16, 2000, there is a Wal-Mart form that indicated Dr. Raffai released Hilts to strict sedentary work with no lifting, bending, or stooping.

On November 22, 2000, based on Dr. Raffai’s release, Wal-Mart offered Hilts the position of greeter to work six hours a day, five days a week, with a stool. Wal-Mart called Hilts directly to come to the office; Hilts came accompanied by his father and attorney. At his attorney’s advice, Hilts did not sign anything and left. A letter offering the same employment was also sent to Hilts, but he never responded.

Hilts testified that the injury got worse over the next several months after the accident. He stated that the position that Wal-Mart had offered him was the work he had been performing since the accident for the few hours he worked and that it was | shard for him to work even those few hours at this position.

In January 2001, Hilts began seeing Dr. Morgan Lorio. Dr. Lorio’s notes from the March 21, 2001 visit indicated that Hilts was not any better, but he opined that it would be reasonable to try and return Hilts to some form of employment. It was not until August 28, 2001, when Hilts saw Dr. Louis Blanda, that a doctor once again found that Hilts was not capable of working. Dr. Blanda then scheduled Hilts for further studies. A myelogram and CT scan were positive at L5-S1 to the right for a focal disk herniation with SI nerve root displacement. The EMGs were positive for L5-S1 radiculitis, confirming the studies ordered by Dr. Raffai in 2000 before Dr. Raffai released Hilts to return to work. Dr. Blanda advised that Hilts required a L5-S1 diskectomy with pedicle screw fusion. He continued to recommend that Hilts not work.

In Dr. Blanda’s January 24, 2002 notes, he observed that Dr. Gregory Gidman recommended surgery if the studies were positive. Dr. Blanda noted that Hilts’ studies were positive. Dr. Gidman saw Hilts one time on August 7, 2001, for a second medical opinion. Dr. Gidman _ recommended studies at that time and reported that “[i]f the myelogram, CT scan and electrical studies demonstrate nerve root compression, then surgical decompression should be considered.” Dr. Blanda did not see Hilts again until July 18, 2002, because his appointment was “canceled per workers’ comp.” He still opined that surgery was necessary.

After a review of the medical evidence and Hilts’ testimony, we find that the WCJ was not clearly wrong in finding that Hilts was unable to engage in any gainful employment from November 22, 2000 to August 28, 2001. It is true that Dr. Raffai released Hilts to return to work, but it was only two days earlier when Dr. Raffai had restricted Hilts from working. When Dr. Blanda finally saw Hilts, he restricted Hilts |7from working. Hilts’ condition at that time was the same as it was when Wal-Mart offered him the job. Based on all the medical evidence and Hilts’ own testimony that he could not perform this particular job, we find it reasonable for the WCJ to conclude that Hilts was not able to engage in any employment.

PENALTIES AND ATTORNEY’S FEES

Hilts claims that Wal-Mart was arbitrary and capricious in handling numerous aspects of this case and that he is entitled to penalties and attorney’s fees.

Awards of penalties and attorney’s fees in workers’ compensation are essentially penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers. Although the Workers’ Compensation Act is to be liberally construed in regard to benefits, penal statutes are to be strictly construed.
The fact that an employer is subjectively motivated to avoid paying compensation is not determinative. Neither is the fact that an employer loses a disputed claim, (penalties and fees are never assessed automatically against the losing party) On the other hand, the fact that no witnesses saw the alleged accident or that there was no immediate report of an accident by the plaintiff does not necessarily justify the denial of benefits. The employer must adequately investigate the claim, and the crucial inquiry is whether the employer had an articulable and objective reason for denying or discontinuing benefits at the time it took that action.

Williams v. Rush Masonry, Inc., 98-2271, pp. 8-9 (La.6/29/99), 737 So.2d 41, 46 (citations omitted).

Louisiana Revised Statute 23:1201(F) provides for the payment of penalties and attorney’s fees if the employer or insurer fails to commence payment of benefits timely or to pay continued installments timely, or to pay medical benefits timely unless the claim is reasonably controverted. Furthermore, La.R.S. 23:1202.2 provides for attorney’s fees when the employer or insurer arbitrarily discontinues payment of benefits due.

Hilts has not complained about any problem regarding the payment of any compensation or medical benefits. He argues that he is entitled to penalties and | «attorney’s fees for the way Wal-Mart “handled” this claim. However, the Workers’ Compensation Act does not provide penalties and attorney’s fees for arbitrary and capricious “handling” of a claim. Therefore, we find that the WCJ did not err in refusing to award penalties and attorney’s fees.

For these reasons the judgment of the Office of Workers’ Compensation is affirmed. Costs of this appeal are assessed to Wal-Mart.

AFFIRMED.


text:
    Alex D. CHAPMAN, Jr. v. Janita Ann Fontenot CHAPMAN.
    No. 02-1436.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2003.

      Thomas Joseph DeJean, DeJean & Leger, Opelousas, LA, for Defendant/Appellant, Janita Ann Fontenot Chapman.
    Jonathan Clyde Vidrine, West & Vid-rine, Ville Platte, LA, for Plaintiff/Appel-lee, Alex D. Chapman Jr.
    Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and BILLY HOWARD EZELL, Judges.
   hEZELL, Judge.

Janita Fontenot Chapman appeals a judgment ordering her to sign IRS tax form 8332, thereby allowing her ex-husband, Alex Chapman, to claim their minor children as dependents on his taxes for the years 1998 and 2000. She claims the trial court erred in ordering her to amend her tax returns for those years and in not awarding her the expenses incurred in that process. We disagree. For the following reasons, we affirm the decision of the trial court.

On May 19, 1995, Mr. Chapman filed for divorce from Mrs. Chapman. Three children were born of the marriage, Korey, Meghann, and Alexis. To settle a bitter dispute over the custody of the children, the Chapmans agreed to a joint custody plan. The plan included the provision that Mr. Chapman would receive the dependency exemption for the children for federal and state income tax purposes. The trial court entered judgment in accordance with the stipulated plan on December 14, 1995.

On March 26, 2002, six years after the consent judgment was signed, Mr. Chapman requested that Mrs. Chapman sign the appropriate forms allowing him to claim the exemption on his taxes. He had not requested she sign the forms until this point, and Mrs. Chapman had been claiming the children as dependents on her own taxes. Mr. Chapman claimed that he did not discover the fact that he could claim the exemption for the children until 2002, as he was too upset by the divorce to review the documents associated with it. Additionally, Mr. Chapman sought to amend his tax forms for 1998 and 2000 to include this exemption, which would require Mrs. Chapman to amend her own tax forms for those years, possibly resulting in penalties being assessed against her. In the tax year 1999, Mr. Chapman received a tax refund, and therefore, this year was not contested.

| gThe trial court ruled in favor of Mr. Chapman, finding that he was entitled to the exemptions under the terms of the consent judgment. The trial court, however, noted that his negligence in failing to have Mrs. Chapman sign the appropriate forms prior to filing her own taxes could result in penalties to her. Accordingly, the trial court decreed that if Mrs. Chapman is cast with any penalties for the amending of her tax returns, those penalties shall be paid by Mr. Chapman. From this decision, Mrs. Chapman appeals.

Mrs. Chapman claims that the trial court erred in ordering her to retroactively amend her tax returns for 1998 and 2000 because of Mr. Chapman’s failure to timely claim the exemptions. We disagree. “A compromise agreement which forms the basis for a consent judgment gets its binding force and effect from the consent of the parties.” Bonaventure v. Pourciau, 577 So.2d 742, 746 (La.App. 1 Cir.1991). The interpretation of the consent judgment (i.e., the contract between the parties) is the determination of the common intent of the parties. La.Civ. Code, art.2045. Each provision in the contract is interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La.Civ.Code art.2050. When the words of a contract are clear and explicit and lead to no absurd consequences, the intent of the parties is to be determined by the words of the contract. La.Civ.Code art. 2046; Robinson v. Robinson, 99-3097 (La.1/17/01), 778 So.2d 1105.

It is clear from the consent judgment that the Chapmans intended for Mr. Chapman to claim the children as dependents on his income tax return. This is unambiguous. Mrs. Chapman agreed to this. However, despite this fact, Mrs. Chapman knowingly filed the children as dependents on her own income tax return until filing her 2001 return. Based on the simple language of the agreement, the trial 13court ruled that Mr. Chapman was entitled to request that Mrs. Chapman sign the appropriate forms so that he could claim the deductions. We find no error in this ruling, as it is plainly set out in the consent judgment who received the benefits of the deductions.

Mrs. Chapman further claims that Mr. Chapman should be estopped from forcing her to amend her tax returns because his own negligence necessitated that both of the Chapmans amend their prior tax returns. She claims that the result to her will be a tax penalty “bombshell.” However, in the judgment on appeal, the trial court ordered Mr. Chapman to pay any penalties incurred by Mrs. Chapman for the re-filing of the returns. Therefore, Mrs. Chapman will not be forced to pay any penalties incurred by her as a result of the amendments. Furthermore, under the Internal Revenue Code Section 6511, the maximum amount of time Mr. Chapman is able to retroactively seek a refund is three years. Hence, he is unable to seek a refund for the 1996 and 1997 tax years. The result is that Mrs. Chapman has bene-fitted by paying fewer taxes for those years than she should have, as she improperly claimed the children’s dependency exemption, in violation of the consent judgment. Therefore, the claim that equity should prevent Mr. Chapman from seeking what Mrs. Chapman willingly agreed to give him is without merit.

Finally, Mrs. Chapman claims that the trial court erred in failing to award her reasonable and customary certified public accountant fees for the re-filing of her tax returns. Both parties were at fault in this situation, Mr. Chapman for failing to request that Mrs. Chapman sign the necessary forms and Mrs. Chapman in improperly claiming the children. As noted above, she was aware at the time of the filing of her tax returns that the children’s dependency exemption was to go to their father, yet she continually filed for the exemptions. She breached the consent judgment she agreed |4to by filing the children as her dependents. She benefit-ted from this by paying less in taxes for two years than she should have. While the trial court ordered Mr. Chapman to pay any penalties incurred by Mrs. Chapman as a result of his own negligence, penalties are substantively different than the ordinary costs incurred in the filing or re-filing of income tax returns. The trial court committed no error in refusing to award her the costs of re-filing her tax returns.

The decision of the trial court is affirmed. Costs of this appeal are assessed against Mrs. Chapman.

AFFIRMED.


author: _JjAMY, Judge. | JETERS, J.,

text:
    Linda TENNEY v. BURLINGTON NORTHERN & SANTA FE RAILWAY CO., La & Delta Railroad Co., City of New Iberia, Parish of Iberia & the State of Louisiana through the Department of Transportation and Development.
    No. 02-1451.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2003.

      John Felton Blackwell, New Iberia, LA, for Defendant/Appellee: Louisiana & Delta Railroad Company.
    Alex Andrew Lopresto, III, Roy, Forrest & Lopresto, New Iberia, LA, for Defendant/Appellee: Parish of Iberia.
    John Edmund McElligott, Jr., Kyle L. Gideon, David Young, Davidson, Meaux, Sonnier & McElligott, Lafayette, LA, for Defendant/Appellee: Burlington Northern and Santa Fe Railway Company.
    Kent Mercier, Lafayette, LA, for Plain-tiffiAppellant: Linda Tenney.
    Court composed of JIMMIE C. PETERS, MARC T. AMY and ELIZABETH A. PICKETT, Judges.
   _JjAMY, Judge.

In this personal injury action, the plaintiff appeals the judgment of the trial court sustaining the defendants’ exception of prescription. For the following reasons, we affirm.

Factual and Procedural Background

This case arises out of an automobile accident in New Iberia, Louisiana, on November 9, 2000. On November 7, 2001, the plaintiff submitted a facsimile transmission of a petition for damages to the Iberia Parish Clerk of Court. On the following day, the Iberia Parish Clerk of Court sent a receipt of the facsimile transmission to the plaintiff and informed the plaintiff that the original pleading must be forwarded within five days along with the five dollar transmission fee and a four-hundred forty dollar filing fee. The plaintiff subsequently filed the original petition for damages and a request to proceed in forma pauperis on November 13, 2001. Notably, the plaintiff did not pay any filing or transmission fees at this time. On November 21, 2001, the trial court denied the plaintiffs request to proceed in forma pauperis and ordered the plaintiff to pay the required court costs within thirty days. This order made no reference to the November 7, 2001 facsimile transmission and was in reference only to the petition filed on November 13, 2001. The plaintiff paid the court costs and fees on December 6, 2001. Thereafter, Louisiana and Delta Railroad, Inc., the Parish of Iberia, and Burlington Northern and Santa Fe Railway Company each filed an exception of prescription, alleging that the plaintiffs | ¿facsimile transmission was ineffective because the plaintiff failed to comply with La.R.S. 13:850; and, in turn, the defendants argued that the November 13, 2001 filing was not timely for the plaintiffs del-ictual action. On March 11, 2002, the trial court issued, in part, the following written reasons for sustaining the exceptions of Louisiana and Delta Railroad and Burlington Northern and Santa Fe Railway Company:

In this case, ... the plaintiff did file the original petition and the application for pauper status within five (5) legal days, however the application for pauper status was denied on November 21, 2001. The Plaintiff did not pay the transmission fee of $5.00 or the filing fee within five (5) legal days. Plaintiff contends that to require same of a pauper would be discriminatory and would not allow a pauper to take advantage of a statute available for non-paupers. However, the simple fact is that Plaintiffs pauper status was denied and Plaintiff is not in fact a pauper. The costs in this matter were not paid until December 9, 2001. (More than five days after the pauper status was denied, although the Court does not find this dispositive.) The Court holds that the Plaintiff must strictly comply with the requirements of LSA R.S. 13:850. If Plaintiff desired to file a pauper application, Plaintiff had five (5) legal days, after the prescriptive date, to insure that pauper status was granted. It was incumbent upon Plaintiff to either insure that pauper status was granted during that time, by walking the application for pauper status through or otherwise insuring that the application was granted within five (5) legal days, or paying the facsimile fee of $5.00 and the filing fees withing [sic] five (5) legal days. The statute allows the Plaintiff extra time after prescription to file the original petition and application for pauper status and the Court finds that the statute is available to paupers and non-paupers alike.
If the Court were to allow all individuals who claim pauper status to follow the procedure used by plaintiff, there would be an ability to abuse the statute and thwart its intent. Presumably everyone filing suit could file an application for pauper status thereby extending the time within which costs would have to be paid, according to plaintiff, not just until the application for pauper status was denied, and not within five days from the denial of pauper status, but until, as plaintiff argues, the delay for challenging the denial of pauper status has elapsed.

(Footnote omitted.) On April 18, 2002, the trial issued supplemental reasons for ruling in which it recognized that the Parish of Iberia also filed a similar exception |3of prescription and sustained the Parish of Iberia’s exception as well. The trial court rendered an additional judgment on May 17, 2002, dismissing all claims of the plaintiff against the Parish of Iberia. Now, the plaintiff appeals the May 17, 2002 dismissal, alleging the following assignment of error:

The trial court erred in finding that the plaintiffs filing of her signed Original Petition For Damages, together with an application to proceed in pauper status, within the 5 day time period following the fax filing of her Petition For [sic] Damages, and her deposit of appropriate costs within the time period ordered by the court in its order denying pauper status, did not satisfy the requirement of LSA-R.S. 13:850 that court costs be paid within 5 days of the fax filing, and that, therefore, prescription had run on plaintiffs claims.

Discussion

In her brief, the plaintiff contends that the application for pauper status properly stands in lieu of the payment of court costs and fees. Otherwise, the plaintiff claims that the legislative intent of informa pau-peris provisions would be defeated and financially deprived litigants would be inequitably deprived of the benefits of La.R.S. 13:850. As such, the plaintiff urges this court to reverse the judgment of the trial court sustaining the defendant’s exception of prescription. We find that the plaintiffs assignment of error lacks merit.

La.R.S. 13:850 provides, in part:

A. Any paper in a civil action may be filed with the court by facsimile transmission. All clerks of court shall make available for their use equipment to accommodate facsimile fifing in civil actions. Fifing shall be deemed complete at the time that the facsimile transmission is received and a receipt of transmission has been transmitted to the sender by the clerk of court. The facsimile when filed has the same force and effect as the original.
|4B. Within five days, exclusive of legal holidays, after the clerk of court has received the transmission, the party filing the document shall forward the following to the clerk:
(1) The original signed document.
(2) The applicable fifing fee, if any.
(3) A transmission fee of five dollars.
C. If the party fails to comply with the requirements of Subsection B, the facsimile filing shall have no force or effect. The various district courts may provide by court rule for other matters related to filings by facsimile transmission.

(Emphasis added.) The record in this case establishes that the plaintiff did not pay any fifing fee or transmission fee within five days, exclusive of legal holidays, of the November 7, 2001 facsimile, and there is no provision in this statute that would allow suspension of the La.R.S. 13:850(B) requirements upon an in forma pauperis application. On the other hand, we are mindful that, when a court order permits a party to litigate without the payment of costs, the party is entitled to all services required by law of a clerk of court, including the fifing of pleadings. See La.Code Civ.P. art. 5185. Yet, review of the record presents no such order. Due to the plaintiffs failure to comply with the mandatory requirements of La.R.S. 13:850(B), we conclude that the November 7, 2001 facsimile has no force or effect. See La.R.S. 13:850(C); Antoine v. McDonald’s Rest., 98-1736 (La.App. 3 Cir. 5/5/99); 734 So.2d 1257. Further, the plaintiffs November 13, 2001 fifing was not timely for her delictual action. See La.Civ.Code art. 3492.

Accordingly, we find that the trial court did not err when it sustained the defendants’ exception of prescription.

|KDECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assigned to the plaintiff-appellant, Linda Tenney.

AFFIRMED.

| JETERS, J.,

dissenting.

I must respectfully disagree with the majority’s affirmation of the trial court’s grant of the exception of prescription dismissing the plaintiffs suit. In my opinion, the plaintiffs suit was timely filed.

Both the trial court and the majority rely solely on the language of La.R.S. 13:850 in reaching the conclusion that the plaintiffs case had prescribed. However, La.R.S. 13:850 must be construed together with La.Code Civ.P. arts. 5181 et seq., the provisions governing the waiver of costs for an indigent party.

In the matter before us, the accident giving rise to the suit occurred on November 9, 2000. Thus, the plaintiffs November 7, 2001 facsimile transmission was timely. As pointed out in the majority opinion, Monday, November 12, 2001, was a legal holiday. On November 13, 2001, the plaintiff delivered the original signed petition to the clerk of court. This action met the requirements of La.R.S. 13:850(B)(1). However, instead of paying the applicable filing fee and the transmission fee required by La.R.S. 13:850(B)(2)-(3), the plaintiff filed a request to ^proceed in forma pauperis. Relying on the language in La.R.S. 13:850(C), the trial court concluded that the failure to pay these fees was fatal to the plaintiffs defense to the exception of prescription. The majority in this matter agreed.

I do not agree. The plaintiff had five days, exclusive of legal holidays, from November 7, 2001, to pay “applicable filing fee, if any.” La.R.S. 13:850(B)(2) (emphasis added). She also had the right to file a subsequent request for pauper status. La. Code Civ.P. art.' 5183(A). She did so at the time she forwarded the original filing document to the clerk of court. Until the trial court ruled on that request, she was not required to pay costs.

The trial court did not rule on the request to proceed in forma pauperis until November 21, 2001. Additionally, although the trial court denied the plaintiffs pauper status, it also issued an order giving her an additional thirty days in which to post the required costs. The plaintiff timely complied with that order by paying the costs and fees on December 6, 2001. While the additional thirty days exceeded the five-day limit provided in La.R.S. 13:850(B), the trial court had the discretion to extend the time period for the plaintiff to pay the costs.

In enacting La.R.S. 13:850, the legislature could have stated that anyone who takes advantage of facsimile transmission filing waives the right to proceed in forma pauperis. It chose not to do so. In fact, with the deliberate inclusion of the language in La.R.S. 13:850(B)(2), recognizing that there are certain situations where no filing fee is required, it is clear that the statute must be read together with La. Code Civ.P. arts. 5181 et seq. Thus, I would reverse the trial court and remand for further proceedings.

      . We are mindful that the State of Louisiana observed Veterans’ Day, a legal holiday, on Monday, November 12, 2001.

      . We are also mindful that the trial court stated in its written reasons for judgment: “Costs were not paid in this matter until December 9, 2001.” Yet, at the hearing regarding the exceptions of prescription, the plaintiff’s counsel stated that costs were paid on December 6; and, each party states in its brief that costs were paid on December 6. In any event, we conclude, herein, that neither date was timely.

      . The record before us indicates that trial court rendered judgment dismissing the plaintiffs claims against Louisiana and Delta Railroad, Inc. and Burlington Northern and Santa Fe Railway Company on June 13, 2002.

      . I recognize that such a provision would raise other issues of equal protection. However, such issues are not before us in this litigation.