author: | t CARAWAY, J.

text:
    Dixie Lynette AARON, Plaintiff-Appellant, v. CITY OF SHREVEPORT, Defendant-Appellee.
    No. 38,172-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2004.
    Fischer & McMahon by Timothy R. Fischer, Shreveport, Mark K. Manno, for Appellant.
    Sam N. Gregorio, Shreveport, for Appellant.
    S.P. Davis, Sr., Shreveport, for Appellee.
    Before GASKINS, CARAWAY and DREW, JJ.
   | t CARAWAY, J.

This case involves a dispute over the diagnosis of Complex Regional Pain Syndrome, Type I, also known as Reflex Sympathetic Dystrophy (“RSD”). RSD is a pain disorder affecting the sympathetic nerve system, and it was first diagnosed in plaintiff 19 months following an automobile accident which initially caused soft tissue injuries to both of plaintiffs legs immediately below the knee. The defendant, which does not challenge its liability for the accident, presented expert medical testimony disputing the diagnosis of RSD. The trial court ruled in favor of defendant’s position and limited plaintiffs general damages for only her soft tissue injuries. Plaintiff appeals this ruling. From our review of the expert medical testimony which rests significantly on the plaintiffs credibility in the reporting of her pain symptoms, we find no manifest error in the ruling and affirm.

Facts

On July, 11, 2000, Dixie Aaron (“Aaron”) was a guest passenger in a Porsche being test-driven by her sister, Stacey. The owner of the vehicle filed a complaint with the Shreveport Police department alleging that his car had not been returned. Accordingly, police officers made a traffic stop of Aaron and her sister. Their patrol car stopped beside the Porsche at an angle towards the right rear of the vehicle. The officer inadvertently failed to place the police vehicle in park. Thereafter, an officer approached the Porsche and requested that Aaron exit the vehicle and stand on the right side of the car. While she stood there, the police car began to roll slowly forward eventually pinning Aaron’s knees between the two cars. A video [¡.camera attached to the police vehicle recorded the entire incident. After the accident, Aaron required no immediate medical attention and was able to walk with some assistance from the scene. Some four hours later, however, Aaron reported to the emergency room complaining of leg and knee pain. She was then diagnosed with anterior contusions of the knee area of both legs and given pain medication and released.

Aaron reported to her primary care physician on July 18, 2000. He eventually referred her to Dr. Edward Morgan, an orthopedic surgeon. Aaron first visited Dr. Morgan on August 28, 2000. From August 28, 2000 until September 28, 2001, Aaron complained of global burning pain to Dr. Morgan. He required that Aaron undergo physical therapy which Aaron received through August of 2002. Because of Aaron’s continuing pain, Dr. Morgan referred Aaron to Dr. Donna Holder, an anesthesiologist specializing in pain management. Aaron first saw Dr. Holder on February 13, 2002, more than one year and a half after the accident. Ultimately, Dr. Holder diagnosed Aaron with RSD, which the doctor opined would require ongoing treatment.

On December 1, 2000, Aaron filed suit against the City of Shreveport seeking damages for the injuries she received in the July 11, 2000 accident. Aaron sought a summary judgment on the issue of liability which was granted by the trial court. That issue is no longer disputed by the City. A bench trial on the issue of damages was held.

The medical history presented to the court by Aaron revealed that after she was pinned between the two vehicles, she felt pain pressure on |3both knees. She was unable to obtain a ride to the hospital emergency room until near midnight. X-rays were not taken of her knees because she could walk.

Following the night of the accident, Aaron experienced pain and swelling in her knees. She testified that this condition was helped by physical therapy and later Dr. Holder’s treatment. At the time of trial, Aaron stated that she experienced constant burning, aching and stabbing pains, along with swelling and purple and red spots on her feet and coldness in her legs. Aaron admitted that she did not see the first doctor to whom she was referred by her family doctor because she caused a confrontation in his office. She also conceded that she told her other doctors that the doctor refused to see her because of the litigation.

To cast doubt on the cause of Aaron’s symptoms and for impeachment purposes, the City presented the testimony of Corporal Prunty of the police department in an attempt to show Aaron’s physical condition at the time of a subsequent police incident over a year after the July, 2000 accident. Corporal Prunty testified that on August 2, 2001, he received a report of someone breaking into an apartment. When he got to the apartment complex, he found that the door and frame of one of the apartments had been splintered. Aaron’s right shoe print marked the door. Prunty found the apparently drunk Aaron who admitted that she had accidentally kicked in the door. Corporal Prunty drove Aaron home and afterwards she requested that the officer misspell her name in the police report because of the present lawsuit. Corporal Prunty knew Aaron because |4he had made five domestic calls involving her and her friends, four of which involved Aaron’s intoxication.

When questioned regarding the August 2, 2001 door incident, Aaron characterized the incident as accidental which was her explanation of her failure to report the incident to Dr. Morgan. She stated that she barely kicked the door and that the door and frame shattered because they were not very sturdy. She denied abusing alcohol. She was not sure if she told the officer who drove her home to misspell her name because of her involvement in the lawsuit.

After considering the evidence and the conflicting medical testimony, the trial court fully accepted testimony and opinion of the City’s expert, Dr. Roger Kelley, that Aaron did not suffer from RSD. Alternatively, the court found that if Aaron did have RSD, she failed to prove that it was caused by the July 11, 2000 accident because the evidence showed that it could have been caused: by the door incident of August 2001, or other aggressive and inappropriate behavior by Aaron.' Finally, the court questioned Aaron’s credibility finding that her kicking of the-door belied her complaints of constant pain and that her attempts to diminish the door-kicking incident revealed her lack of veracity. Nevertheless, the court ultimately determined that Aaron’s medical reports adequately established some injury to her as the result of the accident and awarded $25,000 general damages and- special damages excluding the expenses for the two lumbar blocks and Dr. Holder’s treatment. The court rejected Aaron’s claim for the cost of future medical |,.¡treatment for the RSD as set forth by an economic expert and declined to assess as costs the expert fees associated with the RSD claim.'

On appeal, Aaron argues that the trial court erroneously concluded that Aaron did not suffer from RSD caused by the accident when the objective evidence showed otherwise. She also asserts that the trial court attached undue weight to the testimony of Dr. Kelley rather than Dr. Holder and Dr. Morgan, Aaron’s treating physicians, in making those determinations.

Discussion-

Absent manifest or clearly wrong error, the court of appeal may not set aside the factfinder’s finding of fact. To reverse a factfinder’s factual determinations, the court of appeal must find (1) that a reasonable factual basis does not exist on the record; and (2) that the record establishes that the finding is manifestly erroneous or clearly wrong. The reviewing court must do more than review-the record for some evidence which supports or controverts the factfinder’s determination. -Instead, the appellate court must review the entire record to determine whether the conclusion was reasonable. Even if an appellate court concludes its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where testimony conflicts. Cormier v. Comeaux, 98-2378 (La.07/07/99), 748 So.2d 1123.

Very recently, the Louisiana Supreme Court discussed the law regarding the weighing of expert testimony in Miller v. Clout, 03-0091 (La 10/21/03), 857 So.2d 458. In Miller, the court recognized the jurisprudential doctrine developed in the appellate courts that indicates that the testimony of a treating physician should be accorded greater weight than the testimony of a physician who has only seen the party for purposes of rendering an expert opinion concerning the party’s condition. However, the Miller court explained that the treating physician’s testimony is not irrebuttable, as the trier of fact is required to weigh the testimony of all the medical witnesses. In summarizing the legal principle, the court concluded that “the inquiry is whether, based on the totality of the record, the [factfinder] was manifestly erroneous in accepting the expert testimony presented by defendants over that presented by plaintiff.” Miller, fn. 3 at 462.

In Perow v. Lenzly, 30,833 and 30,834 (La.App.2d Cir.8/19/98), 716 So.2d 519, the plaintiffs’ medical complaints rested largely on their reports of subjective symptoms of pain which the trial court rejected. This court affirmed the trial court’s ruling on the following authority:

The weight afforded a treating physician’s testimony is largely dependent upon the facts upon which his opinion is based. A claimant’s lack of credibility on factual issues can serve to diminish the veracity of her complaints to a physician.
In evaluating the evidence, the trier of fact should accept as true the uncontra-dicted testimony of a witness, even though the witness is a party, where the record indicates no sound reason for its rejection. One sound reason for rejection is where circumstances cast suspicion or doubt on the reliability of the testimony. [Citations omitted]

Id. at 523.

| .¡.Moreover, in a personal injury action, the plaintiff must prove by a preponderance of the evidence that the claimed injuries resulted from the accident at issue. Maranto v. Goodyear Tire & Rubber Co., 94-2603 (La.2/20/95), 650 So.2d 757; Bruce v. State Farm Ins. Co., 37,704 (La.App.2d Cir.10/29/03), 859 So.2d 296.

Cumulatively, the expert testimony showed that RSD is a condition affecting the sympathetic nervous system which sometimes is precipitated by even slight trauma. Most cases of RSD manifest within two to six months after the accident. In 1994, the International Association of Pain Management published criteria for the diagnosis of RSD which includes subjective complaints of burning, aching or throbbing pain by the patient. Additional symptoms include hypersensitivity to touch (hyperesthesia) and stimulus that is not painful (allody-nia), swelling, color changes in the extremity or reddening of the area, changes in the skin secondary to decreased blood flow, loss of hair in the affected area, loss of normal nail patterns and temperature changes in the extremity. The experts agreed that people exhibit RSD symptoms differently and there exists no stand-alone test for diagnosing the disorder. Expert opinions differ regarding what symptoms constitute the disorder.

Dr. Morgan testified that he treated Aaron for approximately fifteen months after the accident and initially diagnosed her with contusions to the knees. During that time, he consistently reported' that Aaron was experiencing residual and. burning pain with no evidence of hypersensitivity to touch, temperature or skin changes or bone bruising. |sAaron reported some incidents of her knees giving way. Dr. Morgan referred Aaron to physical therapy for muscle strengthening. He also ordered a three-phase bone scan and MRI which were negative. He testified that Aaron did not have the classic symptoms of RSD and that he could not corroborate a diagnosis of RSD.

On her August 15, 2001 visit with Dr. Morgan, Aaron reported further pain and Dr. Morgan noted that she was “suffering from a chronic pain type syndrome with associated inflammation of both of her pes bursae regions.” Then, on October 1, 2000, Dr. Morgan referred Aaron to Dr. Holder to “see if any of the chronic pain symptoms versus RSD may be a component in her pain manifestation.”

Dr. Holder stated that she first saw Aaron on February 13, 2002. At that time, Aaron complained of bilateral leg pain. Dr. Holder found evidence of'subtle swelling in Aaron’s left ankle, mild hy-perthesia and allodynia of the inner knees and coolness to touch of the left inner thigh and left dorsum of foot. She explained that symptoms in areas other than the original place of trauma is typical in RSD cases. Dr. Holder also testified that the symptoms of RSD wax and wane until a patient reaches the later stages of development. In RSD, the pain may not initially be constant, but as the. disease progresses the pain becomes constant. Based upon these findings, Dr. Holder diagnosed Aaron with probable RSD and recommended a sympathetic lumbar block to confirm that diagnosis.

19Pr. Holder explained that RSD occurs when trauma is experienced by an individual which sets off a reflex cycle within the spinal cord which transmits pain. This pain cycle, eventually triggers the sympathetic nervous system, so that no stimulus to other, .nerves is necessary for the resulting constant pain syndrome. The lumbar block procedure stops or reverses the cycle and results in pain relief. A successful block will result in an increase in temperature in the affected extremity as well as pain and sensitivity relief. Dr. Holder was of the opinion that the lumbar block was the “gold standard” diagnostic test for RSD and that pain was the hallmark symptom of the disease.

Aaron received two left side lumbar blocks (4/9/02 and 9/10/02) from Dr. Holder which resulted in pain and sensitivity relief in both sides and temperature increases in her left foot. From those results, Dr. Holder changed Aaron’s diagnosis to definite RSD.

Dr. Holder was of the opinion that the July 11, 2000 accident was the cause of the RSD although she was aware of the August 2, 2001 door incident. She admitted that kicking a door would cause trauma that can precipitate RSD and that a physician could only separate the trauma from the two incidents by the medical records. However, she stated that the swelling and pain that Aaron experienced prior to August 2, 2001 was sufficient to show that the RSD was caused by the July 11, 2000 accident.

Plaintiffs expert, Dr. William S. Whyte, II, an interventional spine pain expert, confirmed the importance of the lumbar block for diagnosing RSD but admitted that there exists no stand-alone test for confirming the |indisorder and that RSD is hard to diagnose. He explained that the symptoms of RSD will usually develop within two to six months after the trauma. Based upon his 2003 examination of Aaron, Dr. Whyte testified that Aaron more probably than not suffered from RSD. Dr. Whyte admitted that he had never seen any patient develop RSD one and one-half years after the trauma. Upon reviewing Dr. Morgan’s notes, Dr. Whyte conceded that Dr. Morgan’s records lacked any mention of symptoms associated with RSD during March-September 2001.

Unlike plaintiffs experts, Dr. Kelley did not consider the lumbar block to be the “gold standard” for diagnosis and considered the pain relief and temperature change as merely “supportive” of the diagnosis. Dr. Kelley testified that a placebo block must also be given as part of a patient’s evaluation because a placebo can exhibit the same effects as a block and show that the trouble is not in the sympathetic nervous system.

Dr. Kelley explained that in the case of RSD, the typical objective findings include smooth, shiny atrophic skin. Many studies do not include pain as part of the criteria. Additionally, supportive evidence of RSD includes temperature changes in the affected area. Dr. Kelley testified that during the year Dr. Morgan saw Aaron, the RSD signs should have evidenced themselves. He agreed with Dr. Whyte that the objective RSD symptoms for diagnosis should manifest themselves within a two to six month time. He stated that RSD is not an episodic disorder and the changes that take place should remain. In other words, he stated that once the objective findings were exhibited, they would not disappear.

| nDr. Kelley testified that “there is quite a bit of conflict between groups in terms of what exactly constitutes [RSD].” When questioned by the court regarding what he believed to be the “gold standard” for diagnosis of RSD, Dr. Kelley stated that significant atrophic skin changes with motor dysfunction, wearing of bone to inactivity and diminished temperature in the extremities would indicate definitive RSD in his opinion. Probable RSD would be indicated by altered skin temperature, skin coloration changes, variable motor dysfunction, loss of range of motion and possible burning pain.

Dr. Kelley conducted a neurological evaluation of Aaron, a few days after Dr. Holder’s first examination. Unlike Dr. Holder, during Dr. Kelley’s examination of Aaron, he noted no increased sensitivity to touch, no skin colorations or shiny skin, no temperature changes and no weakness in her extremities. Dr. Kelley agreed that temperature changes and trophic changes tend to fluctuate, but that atrophic skin changes or shiny skin does not. Based upon his examination, Dr. Kelley could not find any evidence strongly supportive of the diagnosis of RSD. Dr. Kelley opined that her difficulties were musculoskeletal rather than neurological.

After reviewing the totality of the record before us, we are unable to conclude that the trial court erred in accepting the opinion of defendant’s expert over that of Aaron’s treating physicians, Dr. Morgan and Dr. Holder. Clearly, the expert testimony and the learned medical literature presented by ligthe parties are necessary for the court’s understanding of RSD. Nevertheless, admissibility of and reliance upon expert testimony rest upon the standards of control and testability for the technique, reasoning or methodology employed by the expert. Cf., State v. Foret, 628 So.2d 1116 (La.1993) and its review of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In this case, honest conflicts were presented at trial by the experts regarding the signs and symptoms necessary for the diagnosis of the RSD disorder. Added to that conflict is the accepted fact that the initial trauma for RSD can be minor with the resulting RSD symptoms exhibited in areas of the patient’s extremity removed from the trauma site. Finally, a large measure of the diagnosis at least in the initial stages of RSD rests upon the subjective reports of pain by the patient. Therefore, in the absence of a placebo block test discussed by Dr. Kelley, the trial court’s measure of the credibility of Aaron must be accorded great weight and should not be disturbed on appeal.

With this in mind, we find that Dr. Morgan’s reports and his inability to diagnose and document RSD and its symptoms for over a year following the accident provided the trial court with a significant factual basis for the ruling. Also, the record contained numerous instances where Aaron’s credibility was impeached, allowing the trial court to discount her reporting of the pain symptoms to her physicians. From this evidence, it was reasonable for any factfinder to conclude that Aaron’s had failed to prove by a preponderance of the evidence that her alleged RSD was caused by the July 11, 2000 accident.

|13In light of this determination, it is unnecessary that we address Aaron’s request for an increase in the damage award based upon the RSD. Moreover, because we find favorably for the City on the issues regarding RSD, we can find no abuse of discretion in the trial court’s failure to tax as costs the expert fees of Dr. Holder and the economic expert.

The court shall determine that amount of the expert fees to be taxed as costs to be paid by the party cast in judgment. La. R.S. 13:3666. The trial court has wide discretion in allocating and determining court costs. Hunter v. Bossier Medical Center, 31,026 (La.App.2d Cir.9/25/98), 718 So.2d 636; Succession of James, 27,639 (La.App.2d Cir.12/6/95), 665 So.2d 715.

Conclusion

For the foregoing reasons, we find no manifest error in the trial court’s determination. Accordingly, the judgment of the trial court is affirmed at Appellant’s costs.

AFFIRMED.

      . Aaron’s physical therapist, Douglas Tietjen, testified at trial that during his treatment of Aaron she exhibited symptoms mimicking RSD. He reported this in January of 2001. The trial court discounted this testimony instead relying solely on the experts.

      . Indeed, plaintiff's exhibit 14h, a 2002 article discussing the criteria for RSD diagnosis, confirmed the absence of a "gold standard” for the diagnosis of RSD and expressed a general dissatisfaction with available criteria that resulted in the use of "personally favored terminology and criteria.”


source: Caselaw Access Project

author: LLOLLEY, J.

license: Public Domain

text:
    SUCCESSION OF Myra Lee Barnett DODSON.
    No. 38,188-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2004.

      James M. Johnson, Minden, for Defendant-Appellant, Richard Cecil Dodson and for Defendants-Appellees, James T. Barnett, Mary Dodson Gates, Louise D. Carpenter, Mimi Lynn Dodson Pickett, and Melissa Dodson DeFatta.
    Pittard & Jacobs, LLC by Robert Lane Pittard, Bossier City, for Plaintiff-Appel-lee, Bettye Barnett Smith and for Interve-nor/Appellee, Mary Helen Stovall.

      Before WILLIAMS, MOORE and LOLLEY, JJ.
   LLOLLEY, J.

Richard C. Dodson appeals the judgment of the Twenty-Sixth Judicial District Court for the Parish of Bossier, State of Louisiana, in favor of Bettye Barnett Smith (“Smith”) and Mary Helen Stovall (“Stovall”). For the following reasons, we affirm.

Facts

Myra Lee Barnett Dodson (“Mrs. Dodson”) died on October 8, 1999. She was a domiciliary of Bossier Parish, Louisiana. Mrs. Dodson was predeceased by her parents, her husband, Leonard Selmer Dodson, and by all of her siblings. She had no children, either biological or adopted, and was only survived by numerous nieces, nephews and other collateral heirs.' From the record and according to Smith’s petition, it appears that Mrs., Dodson died intestate.

Smith is the niece of Mrs. Dodson, being the daughter of one of Mrs. Dodson’s deceased brothers. She was appointed ad-ministratrix of Mrs. Dodson’s succession. Stovall intervened in these proceedings and is also a niece of Mrs. Dodson by another one of her deceased brothers.

On September 27, 1996, a little more than three years prior to Mrs. Dodson’s death, Richard Dodson (“Richard”) and James Barnett (“Barnett”), executed a Power of Attorney to act as agents for Mrs. Dodson. 13Her acceptance ■ of the Power of Attorney is signified by a mark of “X” she purportedly made, being unable to properly sign due to a debilitating stroke. Richard was .the nephew of Leonard Dodson, the child of one of his deceased brothers. Barnett was the nephew of Mrs.. Dodson, the child of one of her deceased brothers.

-Subsequently, on December 30, 1996, the following acts of donations were executed:

1. Donation to the “Barnett nieces and nephews,” represented by James Barnett, of one-half interest in a checking account at the First State Bank & Trust Company, Plain Dealing, Louisiana and one-half of all certificates of deposit on the First State Bank & Trust Company, Plain Dealing, Louisiana;
2. Donation to Louise Carpenter (also known as Lydia L. Carpenter) and Richard Dodson of Mrs. Dodson’s interest in a 7.975 acre tract of land in Bossier Parish, Louisiana and her interest in a 24 acre tract of land in Bossier Parish, Louisiana;
3. Donation to James Barnett of 59.69 acre tract of land in Bossier Parish, Louisiana;
4. Donation to Louise Carpenter, Richard Dodson, and Mary Gates of Mrs. Dodson’s interest in a 57.61 acre tract of land in Bossier Parish, Louisiana and her interest in a 27.14 acre tract of land in Bossier Parish, Louisiana;
5. Donation to Richard Dodson of a house trailer, furniture and farm equipment and tools on the property-located in Bossier Parish, Louisiana;
6. Donation to Louise Carpenter, Melissa DeFatta, Richard Dodson, Mary Gates and Mimi Lynn Pickett of one-half interest in a checking account at the First State Bank & Trust Company, Plain Dealing, Louisiana and one-half of all certificates of deposit on the First State Bank & Trust Company, Plain Dealing, Louisiana; and,
7. Donation to Richard Dodson of a 40 acre tract of land in Lafayette County, Arkansas (collectively, the “acts of donation”).

|4The acts of donation were executed by Richard and Barnett as the agents of Mrs. Dodson pursuant to the power of attorney. Mrs. Dodson also appeared in the acts, wherein she executed same by making her mark of an “X.” The donations were accepted by the various donees, some outside the presence of the notary and two witnesses who appeared on the acts. Furthermore, the donees were never placed in possession of the purportedly donated property, delivery of which was withheld until after the death of Mrs. Dodson. The acts of donation were not recorded until after the death of Mrs. Dodson.

When Smith was appointed administra-trix of Mrs. Dodson’s succession, she filed a petition to nullify the acts of donation. Stovall subsequently intervened in the proceedings. After a trial of the matter, the trial court entered its judgment in favor of Smith and Stovall and determined that the acts of donation were invalid due to the incapacity of Mrs. Dodson. This appeal by Richard ensued.

DlSCÜSSION

On appeal, Richard brings three assignments of error, with the central issue being whether Mrs. Dodson lacked the capacity to validly enter into the acts of donation.

The capacity to donate inter vivos must exist at the time the donor makes the donation. La. C.C. art. 1471. In order to have capacity to make an inter vivos donation, the donor must be able to comprehend generally the nature and consequences of the disposition that he is making. La. C.C. art. |s1477. A person challenging the capacity of a donor must prove by clear and convincing evidence that the donor lacked capacity at the time the donor made the donation. La. C.C. art. 1482. Proving a matter by “clear and convincing evidence” requires establishing that the existence of a disputed fact is highly probable, that is, much more probable than its nonexistence. Robertson v. Cubine, 31,743 (La.App.2d Cir.03/31/99), 731 So.2d 931, citing, Succession of Bilyeu, 28,701 (La.App.2d Cir.09/25/96), 681 So.2d 56, writ denied, 96-2868 (La.01/24/97), 686 So.2d 862.

The issue of capacity is a question of fact. The trial court’s factual findings will not be disturbed on appeal unless clearly wrong or manifestly erroneous. Robertson, supra.

The trial court determined in a well-reasoned opinion that Mrs. Dodson lacked the requisite capacity to execute both the power of attorney and the acts of donation. In so doing, the trial court recognized the heavy burden of proof faced by Smith and Stovall to determine Mrs. Dodson incapable of validly executing the subject acts of donation.

The determination regarding Mrs. Dodson’s capacity (or lack thereof as the case may be) was based on the testimony heard by the trial court. Specifically, the trial court considered the testimony of various witnesses who believed Mrs. Dodson was both generally competent and also specifically competent to execute the power of attorney and acts of donation. In contradiction to that testimony, the trial court had before it the testimony of Mrs. Dodson’s treating physician, who opined that she was not lficapable of executing. such documents. This was the evidence to which the trial court gave the greater weight.

Specifically, Dr. Lawrence Drexler (“Dr. Drexler”), an internist with a specialization in geriatric medicine, appeared before the trial court via his deposition. Dr. Drexler was Mrs. Dodson’s treating physician during the time she was admitted to the IHS Shreveport Nursing Home in March 1996 until her death in 1999, a fact which the trial court gave particular weight to. Dr. Drexler testified that at the time of Mrs. Dodson’s admission she was diagnosed with senile dementia, which he described as a condition “... where the brain is no longer functioning properly related to changes of aging.” Additionally, Dr. Drex-ler explained that Mrs. Dodson had experienced brain damage as a result of a previous major stroke, as well as subsequent “little tiny multiple small strokes.” Significantly (and as the trial court characterized as “amazingly”), on September 17, 1996, (just prior to the execution of the power of attorney), Dr. Drexler had prepared a letter addressed “To Whom It May Con-eern,” wherein he opined that “[Mrs. Dodson] is not competent to make financial decisions due to physical and mental disabilities.” He testified that if he wrote and signed such a letter that she was certainly, in his opinion, permanently incapable of making appropriate financial decisions. Dr. Drexler was further asked whether Mrs. Dodson could have experienced bad days and good days, i.e., whether her condition waxed and waned, with specific reference given to the dates when the power of attorney and acts of donation were executed. Dr. Drexler responded that had he thought Mrs. Dodson’s condition was inconsistent, he [7wouId have requested a psychiatric consultation regarding her competency, which he did not. He also explained that a description on Mrs. Dodson’s nursing chart that she was “alert” basically meant that she was responsive when spoken to and not drowsy.

As stated, it was this testimony to which the trial court gave the greater weight and, moreover, which the trial court specifically characterized as “clear and convincing.” Such a conclusion was not in error and is clearly within the trial court’s province, even though a number of other witnesses testified regarding their opinion that Mrs. Dodson was competent. Where a fact finder’s conclusion is based on its decision to credit the testimony of one of two or more witnesses, that determination can virtually never be manifestly erroneous or clearly wrong. Pope v. Prunty, 37,395 (La.App.2d Cir.08/20/03), 852 So.2d 1213, 1218, writ denied, 2003-2496 (La.11/26/03), 860 So.2d 1137. Of particular significance is Dr. Drexler’s letter written prior to any of the events in question, i.e., prior to- the execution of the power of attorney or the acts of donation. The trial court was not in error in relying on Dr. Drexler’s testimony, over that of the other witnesses — no matter what then-number — to determine that Mrs. Dodson lacked the requisite capacity to execute either the power of attorney or the acts of donation. Thus, the trial court was not clearly wrong in concluding that Mrs. Dodson lacked capacity to execute the power of attorney or acts of donation.

Moreover, we seriously question the validity of the acts of donation on a further front. A donation inter vivos is defined as “... an act by which |sthe donor divests himself, at present and irrevocably, of the thing given, in favor of the donee who accepts it.” La. C.C. art. 1468 (emphasis added). The testimony at trial was clear that Mrs. Dodson did not intend nor did she divest herself of the property described in the acts of donation at the time those acts were executed; therefore, these donations would not be valid donations inter vivos.

The facts in this case are almost identical to those of a previous case considered by this court, Succession of Simpson, 311 So.2d 67 (La.App. 2d Cir.1975), writ denied, 313 So.2d 839 (La.1975). In that case, Mrs. Simpson had executed an act of donation (in addition to others that were also invalidated for other reasons) of certain immovable property to nine of her twelve children. After her death, eight of the donees sought a declaratory judgment sustaining the donation. The Simpson court observed that the subject act of donation met the legal requirements of form, further noting that Mrs. Simpson appeared to have the intent to donate. However, it was determined that Mrs. Simpson lacked the intent to divest herself of ownership of the property until her death, or in other words, she lacked the intent to divest herself of ownership at the time the donation was purportedly made, as the rule governing donations inter vivos require. The evidence in Simpson indicated that Mrs. Simpson never gave up possession of her property. Thus, because she did not intend to divest herself of her property until her death, the donation was not a valid donation inter vivos, and the donation was declared null and void. Id. at 74.

|flIn the case sub judice, the evidence clearly indicates that Mrs. Dodson did not wish to divest herself of her property until her death. In fact, Richard repeatedly testified that Mrs. Dodson did not intend for the donations to be effective until her death. When questioned specifically whether title to certain property had been transferred prior to Mrs. Dodson’s death (i.e., transferred via execution of the act of donation), Richard responded that title was not intended to be “... transferred until such time as it was filed with the court,” which was not to occur until after Mrs. Dodson’s death, in accordance with her wishes. Here, as in Simpson, the acts of donation, lacking the required divestiture of ownership, were not valid donations inter vivos, and for that reason, as well as for Mrs. Dodson’s incapacity to enter into such acts, are null and void.

Finally, a donation inter vivos is only binding “... from the day of its being accepted in precise terms ....,” which acceptance may be accepted by a posterior act, also required to be in the form of an authentic act. See La. C.C. art. 1540. Here, the evidence is clear, but for Richard, none of the donees appeared contemporaneously before the notary and two witnesses on the acts, which in and of itself would not be a death blow to these dona-' tions had the donees accepted in a subsequent valid act. However, the testimony at trial indicates that the signatures of the other donees were not before a notary and two witnesses, although the acts themselves indicate so on their face. In fact, these donees failed to appear before any notary public and two |inwitnesses, i.e., they did not accept their donations by authentic act as required pursuant to La. C.C. art. 1540. For this added reason, those acts of donation wherein the acceptance was not properly perfected are also null and void for failure of being validly accepted by the respective donees.

Richard also argues that the trial court erred in declaring null the donation to him of Mrs. Dodson’s bank account, because he was already listed as a party to the account. In support of that argument he looks to La. R.S. 6:312, which discharges any liability on the part of a financial institution when it pays funds to one of the parties listed on an account. However, Richard has produced no evidence, other than his self-serving testimony, of the fact that any accounts were joint accounts between him, Mrs. Dodson and Barnett. There was admitted into evidence copies of certificates of deposit owned jointly by Mrs. Dodson and Barnett, but Richard was not listed. Barnett also testified that at some point in time he transferred Mrs. Dodson’s account from her bank in Magnolia, Arkansas to First State Bank in Plain Dealing, Louisiana, and he stated that the new account was a joint account with his, Mrs. Dodson and Richard’s names. Copies of two checks submitted into evidence (written after Mrs. Dodson’s death on an account styled “Myra Lee Dodson” and signed by Richard) were signed after her death to pay the filing fees for the acts of donation, but, notably, neither Richard’s nor Barnett’s name were listed on the checks as account holders. Accordingly, we conclude that this assignment of error tnis without merit and determine that the respective act of donation was also properly declared null by the trial court.

Conclusion

For the forgoing reasons, the judgment of the trial court in favor of Bettye Barnett Smith and Mary Helen Stovall is hereby affirmed, with costs of this appeal assessed to Richard C. Dodson.

AFFIRMED.

      . The record contains a copy of Mrs. Dodson’s last will and testament dated August 21, 1973, wherein upon her death she left all of her estate to her husband, Mr. Dodson; however, Mr. Dodson predeceased Mrs. Dodson, and, presumably she never executed a new will. Interestingly, Mrs. Dodson was the petitioner in Succession of Dodson, 27,969 (La. App.2d Cir.02/28/96), 669 So.2d 642, which involved the succession of her husband,- Leonard. In that case, a 1988 will by Mr. Dodson was set aside. That will had been executed by Mr. Dodson at the urging of his sister and her son, resulting in Mr. Dodson's property being left to his legal heirs, with Mrs. Dodson having a lifetime usufruct. This was contrary to his prior will, which left the entirety of his estate to Mrs. Dodson. This court determined that Mr. Dodson lacked the mental capacity to execute the subsequent will and found in favor of Mrs. Dodson.

      . The other named defendants, Barnett, Louise D. Carpenter, Melissa Dodson DeFat-ta, Maty Dodson Gates and Mimi Lynn Dodson Pickett did not appeal the judgment.

      . Mrs. Dodson’s lack of capacity to execute the power of attorney was not specifically alleged by Smith and Stovall; however, the parties agreed that it was likewise an issue at trial.

      . For that matter, although a donative intent may have been expressed in the acts of donation (absent a question of Mrs. Dodson's capacity), the donations were not valid donations mortis causa either for lack of proper form. See La. C.C. arts. 1574 et seq.

      . Although it was never clarified at the trial, these checks were drawn on a Hibernia National Bank account, in Plain Dealing, Louisiana, presumably the successor to First State Bank & Trust Company.


author: | PEATROSS, J.

text:
    James E. JONES, Plaintiff-Appellant v. WALPOLE TIRE SERVICE, INC., Defendant-Appellee.
    No. 38,206-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2004.

      Tutt, Stroud & Bordelon, LLC by Charles G. Tutt, Jennifer P. McKay, Shreveport, for Appellant.
    Juge, Napolitano, Guilbeau, Ruli & Frie-man by Denis Paul Juge, Metairie, for Appellee.
    Before CARAWAY, PEATROSS & MOORE, JJ.
   | PEATROSS, J.

In this workers’ compensation case, the workers’ compensation judge (‘WCJ”) entered judgment finding that the claimant, James E. Jones, is totally and permanently disabled and finding that his employer, Walpole Tire Service, Inc. (“Walpole”), was entitled to a reverse offset for social security benefits paid to Mr. Jones in the amount of $719 per month or $165.92 per week. The judgment was silent as to costs. Mr. Jones appeals, challenging the amount of the reverse offset and the failure to award him costs. Walpole has answered the appeal, challenging the WCJ’s finding of total and permanent disability. For the reasons stated herein, we amend the judgment of the WCJ and, as amended, affirm.

FACTS

On August 1, 1994, Mr. Jones sustained an injury to his neck when he lifted a 125-pound tire while working for Walpole. It is not disputed that he was injured in the scope and course of his employment and that he received supplemental earnings benefits (“SEBs”) in the amount of $213.44 per month based on his stipulated average weekly wage of $360. In March 2002, Mr. Jones filed a disputed claim for compensation requesting that his status be changed to permanent total disability (“PTD”). Two hearings were held, the first of which addressed his disability status, with the second concerning Walpole’s entitlement to a social security reverse offset for social security benefits paid to Mr. Jones. As previously stated, the WCJ found Mr. Jones | ¡¡to be permanently and totally disabled and awarded a reverse offset for social security benefits.

DISCUSSION

The entitlement to the reverse offset is not disputed, only the amount of the reverse offset is challenged by Mr. Jones, along with the WCJ’s failure to award costs. In answer to the appeal, Walpole challenges the WCJ’s finding that Mr. Jones is permanently and totally disabled. We will first address the issue of Mr. Jones’ disability status raised in Walpole’s answer to the appeal.

Permanent Total Disability

La. R.S. 23:1221(2)(c) provides:

(c) For purposes of Subparagraph (2)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subpar-agraph (2)(b) of this Paragraph, compensation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.

A claimant is entitled to receive workers’ compensation benefits for any injury which produces permanent total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or similar occupation as that in which the worker was engaged when injured. La. R.S. 23:1221(2)(a). PTD benefits shall not be awarded if the claimant is engaged in any employment or self-employment. La. 13R.S. 23:1221(2)(b). When the employee is not engaged in any employment or self-employment, PTD compensation shall be awarded only if the employee proves by clear and convincing evidence that the employee is physically unable to engage in any employment or self-employment, including any and all odd-lot or sheltered employment or while working in pain. La. R.S. 23:1221(2)(c).

La. R.S. 23:1226(D) provides that, prior to the adjudication of an injured employee as permanently totally disabled, the WCJ shall determine whether there is a reasonable probability that, with appropriate training or education, the employee may be rehabilitated to the extent that he can achieve suitable gainful employment and whether it is in the individual’s best interest to undertake such training or education. The supreme court has stated that the requirement of La. R.S. 23:1226 must be construed in pan materia with La. R.S. 23:1221(2), supra, which defines permanent total disability. Comeaux v. City of Crowley, 01-0032 (La.7/3/01), 793 So.2d 1215.

Whether the claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the hearing officer. Pugh v. Casino Magic, 37,166 (La.App.2d Cir.4/11/03), 843 So.2d 1202. Factual findings in workers’ compensation cases are subject to the manifest error rule. Id., citing Smith v. Louisiana Department of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129. Under the manifest error rule, the reviewing court does not decide whether the factual findings are right or wrong, but whether they are reasonable. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. If the WCJ’s findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse, even if convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Banks, supra; Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Graham v. Georgia-Pacific Corporation, 26,165 (La.App.2d Cir.9/23/94), 643 So.2d 352.

The manifest error standard accords great deference to the hearing officer, for, as fact finder, the hearing officer is in the superior position to assess the demeanor and tone of voice that are crucial to the issue of credibility. Rosell v. ESCO, 549 So.2d 840 (La.1989). The hearing officer’s decision to credit the testimony of one of two or more witnesses can virtually never be plainly wrong. Id.

In the case sub judice, Walpole argues that Mr. Jones failed to carry his burden of proving by clear and convincing evidence that he is permanently and totally disabled. In support, Walpole points to the testimony of Danielle Montgomery, a vocational expert, who testified on its behalf. Ms. Montgomery testified that Mr. Jones is capable of performing such jobs as a poultry worker, technician at a sink manufacturer, a press operator, photo developer or positions at fast food restaurants. According to Walpole, Ms. Montgomery’s opinion that Mr. Jones is able to perform these jobs disqualifies him from an award of permanent total disability. In addition, Walpole cites the court to the testimony of Mr. Jones’ treating physician, Dr. Kalia Sadasivan, in support of its argument that he could |swork within certain restrictions. Walpole also notes that Mr. Jones is taking no medication for pain and there is no evidence that he cannot be further educated or trained. After reviewing the testimony and the WCJ’s thorough reasons for judgment, however, we find no manifest error in the WCJ’s conclusion that Mr. Jones is permanently and totally disabled.

Dr. Sadavisan testified that, after his work-related neck injury, Mr. Jones was experiencing severe pain from spasms in his neck and was unable to perform any activity in his upper extremities that involved lifting or pushing. It was Dr. Sada-visan’s opinion that arthritis had formed in Mr. Jones’ cervical spine as a result of the trauma to that area from the injury. In September 2000, Mr. Jones underwent a posterior cervical fusion with an iliac crest bone graph (a fusion of two cervical verta-brae, C2 and C3). Dr. Sadavisan explained that the surgery decreased the range of motion in Mr. Jones’ neck, but did alleviate the pain “as long as he’s not active, lifting, pushing or even performing the simplest of daily living activities.” Dr. Sadavisan further explained that activity brings pain to Mr. Jones even after the surgery. In Dr. Sadavisan’s opinion, Mr. Jones’ condition is permanent and he is totally unable to perform any job that would require lifting objects weighing more than 15 pounds. She further testified that Mr. Jones should limit twisting his neck, turning his head from side to side or any neck rotation and he should avoid vibration. Specifically, Dr. Sadavisan testified that Mr. Jones could not use power tools and should avoid pushing or pulling heavy objects.

IfiMr. Jones testified that he is unable to perform even simple daily activities, such as household chores and picking up children. He testified that he is in pain if he looks up, down or turns his head from side to side. We find that this testimony supports the WCJ’s reasonable conclusion that Mr. Jones is willing to perform work activities “but he is unable to do so because of the condition of his neck.”

Another factor considered by the WCJ in this case is that Mr. Jones is functionally illiterate. While he can recognize some words, he cannot read or write. Mr. Jones was 43 years old at the time of the hearing in this case and had been educated, in special education classes, through the tenth grade. Since he is unable to read and write, Mr. Jones’ employment was in manual labor, and, for the same reason, he is not a candidate to obtain a G.E.D. Moreover, testing conducted during the rehabilitation process indicated that he has a mild mental handicap. This evidence of Mr. Jones’ lack of- ability to be educated or retrained was properly considered by the WCJ in determining whether Mr. Jones satisfied his burden of proving his incapacity to perform any work. See Comeaux, supra.

Regarding the vocational rehabilitation efforts of Mr. Jones, the WCJ specifically stated that she made a credibility determination regarding Ms. Montgomery’s testimony. The WCJ was not at all impressed with Ms. Montgomery’s efforts to rehabilitate Mr. Jones. The vocational rehabilitation expert who testified for Mr. Jones, Lanora Matouk, on the other hand, was found to be very credible by the WCJ and opined that there are no jobs in his geographical area that Mr. Jones is able to perform. Ms. Matouk researched the jobs identified by Ms. Montgomery as within Mr. Jones’ capability and testified that each of the jobs either required lifting or reading and writing or other activity outside of Mr. Jones’ restrictions.

In summary, we find that the WCJ correctly addressed and, in her discretion, weighed the various factors to be considered in determining the level of Mr. Jones’ disability. The WCJ properly assessed Mr. Jones’ medical condition, his ability to be further educated or trained and the unsuccessful attempt at rehabilitation and reasonably concluded that these factors support a finding that Mr. Jones is entitled to permanent total disability benefits. Co-meaux, supra. This reasonable conclusion is neither clearly wrong nor manifestly erroneous and will not be disturbed on appeal.

Social Security Reverse Offset

La. R.S. 23:1225(A) provides as follows:

§ 1225. Reductions when other benefits payable
A. The benefits provided for in this Subpart for injuries producing permanent total disability shall be reduced when the person receiving benefits under this Chapter is entitled to and receiving benefits under 42 U.S.C. Chapter 7, Subchapter II, entitled Federal Old Age, Survivors, and Disability Insurance Benefits, on the basis of the wages and self-employment income of an individual entitled to and receiving benefits under 42 U.S.C. § 423; provided that this reduction shall be made only to the extent that the amount of the combined federal and workers’ compensation benefits would otherwise cause or result in a reduction of the benefits payable under the Federal Old Age, Survivors, and Disability Insurance Act pursuant to 42 U.S.C. § 424a, and in no event will the benefits provided in this Sub-part, together with those provided under the federal law, exceed those |sthat would have been payable had the benefits provided under the federal law been subject to reduction under 42 U.S.C. § 424a. However, there shall be no reduction in benefits provided under this Section for the cost-of-living increases granted under the federal law after the date of the employee’s injury.

The WCJ awarded a reverse offset in the amount of $719 per month or $165.92 per week. This award comports with the calculation submitted to the WCJ by counsel for Walpole prior to the rendition of the judgment. As previously stated, Mr. Jones does not contest Walpole’s entitlement to a reverse offset under the above statute. He argues, however, that it is the employer’s'burden to prove the amount of the offset to which it is entitled and Walpole failed to do so.

First, we find unpersuasive Mr. Jones’ argument that the WCJ erred in relying on the documentation from the Social Security Administration. Walpole submitted to the WCJ Social Security Administration form LDOL-WC-1004 which contained benefit information for Mr. Jones. The WCJ subsequently requested additional information from the Social Security Administration and received the same Form 1004 with additional notations. It is well-settled that evidentiary rules are relaxed in workers’ compensation cases. Chaisson v. Cajun Bag & Supply Company, 97-1225 (La.3/4/98), 708 So.2d 375. In Chaisson, the supreme court explained:

LSA-RS 23:1317 mandates that the hearing officer’s factual findings be based on “competent evidence.” La. Rev.Stat. Ann. 23:1317(A) (West Supp. 1997). This legislative mandate is necessary because under the express language of LSA-RS 23:1317, worker’s compensation hearing officers are “not bound by the technical rules of evidence.” Id. In other words, the hearing officer has the discretion to admit evidence that would otherwise be inadmissible under the Louisiana Code of [ 9Evidence. This more relaxed standard for the admissibility of evidence is the general rule in proceedings before administrative agencies. McCormick on Evidence § 352 (4th ed.1992). The legislative requirement that a hearing officer’s factual findings be based upon competent evidence is the safeguard that ensures that the factual findings are made on evidence that has some degree of reliability and trustworthiness, notwithstanding that the evidence might fall outside of the technical rules for admissibility. Therefore, when a reviewing court evaluates the factual findings of a hearing officer under the manifest error standard, it must determine whether the factual findings are reasonable and supported by competent evidence in the record. Although the Legislature has not defined “competent evidence,” in order to give the relaxed evidentiary standard in LSA-RS 23:1317 effect, it must not be defined so narrowly as to mean only evidence that would fall within the parameters of the Louisiana Code of Evidence. If the hearing officer’s factual findings are reasonably supported by competent evidence, then the reviewing court must affirm them.

The WCJ in the instant case made the factual findings of the amounts to be utilized in calculating the reverse offset based on the information contained in Form 1004 provided to the WCJ directly by the Social Security Administration. We find this to be competent evidence and, therefore, find no error in the WCJ relying on this information.

We now turn to the calculation of the reverse offset. In Beaird Industries, Inc. v. Ebarb, 29,300 (La.App.2d Cir.2/26/97), 690 So.2d 866, this court endorsed the formula for calculating the reverse offset under La. R.S. 23:1225 as set forth in Lofton v. Louisiana Pacific Corporation, 423 So.2d 1255 (La.App. 3d Cir. 1982) and Kliebert v. Arceneaux Air Conditioning, Inc., 439 So.2d 486 (La.App. 1st Cir.1983). The offset is determined by adding the total family benefits (“TFBs”) received from Social Security (before any offset has been taken by Social Security) and the employee’s monthly workers’ compensation benefits and then subtracting | infrom the result either the TFB or 80% of the average current earnings (“ACE”) (a figure calculated by Social Security), whichever is greater. Lofton, supra. See also Manino v. Ten (10) Minute Oil Change, 02-0459 (La.App. 4th Cir.8/21/02), 828 So.2d 608, citing Denis Paul Juge, Louisiana Workers’ Compensation § 12:4 (2d ed.2002). The court in Manino stated:

Explaining the purpose of La. R.S. 23:1225, the court in Lofton stated that it was intended “to give the compensation carrier, rather than the federal government, the benefit of the ceiling placed on both programs by the coordination of benefits.” 423 So.2d at 1259. Given that statutory purpose, it logically follows that the formula for calculating the reverse offset to which a compensation carrier is entitled under state law should be based, as it would under federal law, on the TFB and ACE figures provided by the Social Security Administration. Given that the Lofton formula is based on those figures, it is consistent with the statutory purpose of the reverse offset. Although it was decided twenty years ago, a commentator has noted that the cases decided following the Lofton decision have not “strayed very far from the tenets of that decision.” 13 H. Alston Johnson III, Malone & Johnson, Louisiana Civil Law Treatise: Workers’ Compensation Law and Practice §§ 289 (2d ed.1994).

The evidence before the WCJ in the case sub judice reveals that Mr. Jones’ TFB was $1,002.90, 80% of his ACE was $1,208.80 and his monthly PTD compensation was $924.90. The reverse offset is calculated as follows:

a. TFB $ 1,002.90
b. 80% of ACE $1,208.80
e. Combined benefits cannot exceed: $ 1,208.80
d. Monthly PTD benefit: $ 924.80
e. TFB ($1,002.90) + PTD ($924.90) = $ 1,927.80
| Ilf. Offset: $1,927.80 - $1,208.80 = $ 719.00
g. Weeldy offset: $719.00 x 3 = $ 165.92 13

As previously stated, Mr. Jones argues that the figures supplied by the Social Security Administration, specifically the TFB and ACE, are inaccurate. No evidence was presented to the WCJ, however, supporting a departure from the figures provided by the Social Security Administration. Accordingly, as shown by the above calculation, we find no error in the WCJ’s conclusion that Walpole is entitled to a reverse offset in the amount of $165.92 per week.

Costs

Finally, Mr. Jones argues that the WCJ erred in failing to award his costs, namely, $400 for Dr. Sadavisan’s deposition, $129.20 for the court reporter at that deposition and Ms. Matouk’s charges associated with the vocational rehabilitation effort in the amount of $1,839.91. We agree.

The judgment in the case sub judice was silent as to costs. In such case, the costs shall be borne by the party cast in judgment. Cajun Elec. Power Co-op. v. Owens-Coming Fiberglass Corp., 580 So.2d 465 (La.App. 5th Cir.1991). Mr. Jones prevailed in the instant matter, with a judgment granting his request to modify his SEBs and finding that he is permanently and totally disabled. The reverse offset awarded Walpole is a statutory entitlement of the employer recognized by the WCJ. We hereby amend the judgment of the WCJ to tax costs in the amount of $2,369.11 to Walpole.

| ^DECREE

For the foregoing reasons, the judgment of the WCJ is amended to tax James E. Jones’ costs in the total amount of $2,369.11, representing the deposition fee for Dr. Sadavisan of $400, the court reporter’s fee of $129.20 for the deposition and the charges of the vocational rehabilitation expert in the amount of $1,839.91 against Walpole Tire Service, Inc. In all other respects, the judgment of the WCJ is affirmed.

AMENDED AND, AS AMENDED, AFFIRMED.

      . In an unpublished opinion in a prior appeal of this case, this court reversed a finding of the WCJ and held that Mr. Jones was only entitled to SEBs rather than continued temporary total disability benefits ("TTDs”). Commercial Union Insurance Company and Walpole Tire Service, Inc. v. Jones, 32,533 (La.App.2d Cir. 12/8/99), 761 So.2d 816 unpublished opinion, writ denied, 00-0560 (La.4/7/00), 759 So.2d 763.


author: 11 MOORE, J.

text:
    BONOMO BUILDERS, INC., Plaintiff-Appellee, v. AZTEC PAVING & HEAVY CONSTRUCTION COMPANY, Defendant-Appellant.
    No. 38,236-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2004.
    Mills, Turansky & Cox by George H. Mills, Jr., Shreveport, for Appellant.

      Booth, Lockard, Politz, Lesage, Hayter & Odom, L.L.C. by Mark Watkins Odom, Shreveport, for Appellee.
    Before CARAWAY, PEATROSS and MOORE, JJ.
   11 MOORE, J.

Bonomo Builders, Inc. (“Bonomo”), the general contractor constructing a large warehouse owned by Murphy Bonded Warehouses, Inc. (“Murphy”), subcontracted with Aztec Paving & Heavy Construction Co., (“Aztec”) to install the concrete foundation for the warehouse. After Aztec completed a portion of the work, heavy rains halted progress. The pad upon which the concrete slabs were to be poured became water-soaked and unfit to pour concrete. A dispute arose over the earthen pad and the progress of the job. Aztec subsequently refused to communicate with Bonomo and missed scheduled meetings with Bonomo. Finally, Aztec abandoned the project. Bonomo subsequently completed the job and filed suit against Aztec for the additional costs it incurred in completing the job. Aztec answered, claiming Bonomo had breached the contract first and demanded additional payments for work it completed on the site. After a trial on the matter, the district court held that Aztec breached the contract and was liable to Bonomo for damages. From a judgment holding it liable for $180,508.43 in damages and $15,000.00 in attorney fees, Aztec appeals. We affirm.

FACTS

Bonomo, a general contractor, was hired to build a warehouse for Murphy Bonded Warehouses, Inc. on a 160-acre site in Red River Parish. Bonomo subcontracted with Aztec to install approximately 150,000 square feet of reinforced concrete foundation, including a ramp and truck dock containing 1500 square feet of concrete, all for the agreed sum of $659,450.00.

| ¡¿Bonomo and Aztec completed the Subcontractor Agreement on February 10, 2000, which included an attached letter proposal from Aztec forming part of the contract. This letter was dated and signed by Aztec’s president, Samuel C. Estis, on January 12, 2000 and executed by John M. Bonomo on February 9, 2000. In the letter, Aztec estimated that the work would be completed in six weeks from the date of commencement. The agreement required completion of the work no later than April 15, 2000. Importantly, the contract provided for a $500.00 per calendar day liquidated damages penalty if not completed by that date. Aztec agreed to work a minimum 30-man work force 10 hours a day, 7 days a week except holidays and adverse weather conditions, but there was no provision for time extensions in the event of the latter.

The base upon which the concrete foundation was to be poured consisted of a raised pad built from soil tested, selected, and recovered from borrow pits on the 160-acre warehouse site. The 300' by 500' surface of the pad was four to five feet in height above the surrounding grade, extending five feet outside the projected building line before tapering down on a 4:1 slope ratio to ground level. Neither Bono-mo nor Aztec had a role in the construction of the pad. Instead, the pad was constructed by one B.J. Burnell, pursuant to a separate contract with Murphy.

Aztec began working on the project in mid-February of 2000, but frequent and heavy rains soon hampered progress. The earthen pad became saturated with water, rendering it impossible to pour concrete. Under pressure to complete the work, Aztec personnel apparently caused ruts in lathe pad by driving trucks or equipment on it, which further prevented the water from draining off the pad. At Bonomo’s request, Aztec made repeated attempts to “dewater” the pad, i.e, remove the water, and prepare the earthen pad to pour concrete. However, eventually Aztec ceased communicating with Bonomo, and on or about April 24, 2000, Aztec removed its equipment and construction materials from the site and never returned. Bonomo made a demand in writing on May 1, 2000 for Aztec to complete the contract, but Aztec refused.

Bonomo hired another subcontractor, Fred White, to complete the concrete work for a cost of $115,203.11. Bonomo subsequently filed suit against Aztec for damages it sustained as a result of Aztec’s failure to complete the project. Aztec answered by alleging, among other things, that Bonomo breached the contract prior to its quitting the job because the concrete pad was not made of sand as represented by Bonomo. Aztec filed a reconventional demand for $120,895.03 for sums it claims it was still owed under the contract and for an additional $20,130.00 for expenses incurred in attempting to pump the water from the site and to re-work the soil and repair damage to the earthen pad which it claims were outside the scope of the contract.

The case was tried on separate days over a period of several months. After the trial but before the court rendered an opinion, Aztec filed peremptory exceptions of no right of action and failure to join a party under La. C.C.P. art. 641. The trial court overruled the exceptions and entered a judgment in favor of Bonomo for the amount sued upon and denied Aztec’s |4reconventional demands.

In its reasons for judgment, the trial court stated that the evidence adduced at trial supported Bonomo’s claim for breach of contract against Aztec. Aztec’s refusal to attend mandatory meetings to discuss the project status, failure to provide the manpower and work the hours required under the terms of the subcontract, and ultimately abandoning the job, constituted a breach of contract.

The court rejected Aztec’s allegation that Bonomo had already breached the contract by the time Aztec left the job as being unsupported by the evidence. Aztec subsequently filed this appeal.

Discussion

An appellate court may not set aside a trial court’s findings of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State, through Dept, of Transp. and Dev., 617 So.2d 880 (La.1993). A reviewing court must do more than simply review the record for evidence which supports or controverts the trial court’s findings. It must review the record in its entirety to determine whether the trial court’s findings were clearly wrong or manifestly erroneous. Also, the reviewing court must ascertain whether the fact finder’s conclusions were reasonable. Even when an appellate court may feel that its own evaluations are more reasonable than the fact finder’s, reasonable determinations and inferences of fact should not be disturbed. Simpson v. Restructure Petroleum Marketing Services, Inc., 36,508 (La.App.2d Cir.10/23/02), 830 So.2d 480; Porter v. Porter, 36,007 (La.App.2d Cir.6/12/02), 821 So.2d 663. Where there are two | ^permissible views of evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, supra.

A court is not to be concerned with the wisdom or folly of a contract. It cannot annul or amend it simply to avoid some supposed hardship arising therefrom. Its duty is confined to the ascertainment of the limits of the rights and obligations of the contracting parties as they have defined them for themselves. Woolf & Magee v. Hughes, 95-863 (La.App. 3 Cir. 12/6/95), 666 So.2d 1128, writ denied, 96-0073 (La.3/15/96), 669 So.2d 427. A court cannot undermine a contract simply because it was a bad deal for one of the parties. Billingsley v. Bach Energy Corp., 588 So.2d 786 (La.App. 2d Cir.1991).

In its first assignment of error, defendant alleges that there was a mutual mistake regarding the plans and specifications of the contract and, as a result, the trial court committed manifest error' in finding that Aztec was liable to Bonomo for damages arising out of that mistake. The alleged mutual mistake was that Bo-nomo and Aztec confected their agreement under the belief that the pad was built of “sand,” when, in fact, the pad was made of dirt containing silt. Aztec contends that a high silt content in the soil not only violated the specifications for the pad, but rendered it unsuitable for the project because of the propensity of silty soils to “pump” moisture. As previously stated, the pad was built by a third party subcontractor, B.J. Burnell, in a separate agreement with the owner.

To support its position that the plans and specifications for the | ^warehouse foundation required a “sand pad,” Aztec cites three references to the pad as a “sand pad” that are found 'in two exhibits introduced into evidence at trial. In the contract between Bonomo and Murphy (“Main Contract,” Plaintiffs Exhibit 8), Article 2 states:

Site work, sand pad, drainage improvements, and parking lot improvements by F.J. Burnell [sic]. All other work listed is' by Bonomo Builders, Inc. (Emphasis added).

The passage thus referred to work for which Bonomo would not be responsible, including the sand pad.

Next, Aztec cites two notations in the site plan drawings (Defendant’s Exhibit 50) drafted by Smith and Raley, Inc., Consulting Engineers, the engineering firm that designed the project. Page C.3 consists of the drainage plan drawing and contains a notation with an arrow pointing to the building line on the pad surface which reads:

Note, build sand pad out past B.L. 5' 0" then taper @ 4:1 slope to natural grade. (Emphasis added).

Page S.2 of the foundation plan drawing contains the following notation in an area entitled “General Notes:”

2. All fill sand shall be 0-15 P.I. with a compaction test run on each 6" lift-compacted to 90% modified proctor. (Emphasis added).

Additional support for its mutual mistake theory regarding the pad specifications comes from the testimony of Samuel Estis, president of |7Aztec, who testified that “[he] was told when we bid the job it was a nice sand pad.” Estis stated that he considered this a positive feature because water runs through sand. He claimed that he would have bid the job differently, probably adding some money to account for liquidated damages for delay in completion of the project, had he known the pad had a lot of silt and considering the season and time frame. Estis testified that he was told by Darrell Papenhausen, Bonomo’s representative for the job, that the site condition was a “nice — beautiful sandy pad, out in the middle of a cow field.” Estis said that he would also have “negotiated harder up front for access roads and that kind of stuff’ had he known the kind of material they were getting into.

Bonomo denies that there was any mutual mistake regarding the pad specifications and that the pad in this case met the requirements of the plans and specifications. It points to a provision in the letter proposal from Aztec, attached and made part of the Subcontractor Agreement. In that proposal drafted by Aztec, one section reads:

SCHEDULE OF QUALIFICATIONS:
* * *
(4) Base shall consist of compactable [sic], tñmáble, dense graded material. (Emphasis added).

Bonomo contends that the earthen pad meets the specifications of a compactible, trimable, dense graded material.

The first two uses of the term “sand pad” are not part of any specifications regarding the make-up of the pad, but merely references to the pad as a “sand pad.” The third reference, however, refers to the | ¡¡¡specifications for the fill sand. The notation states that all “fill sand shall be 0-15 P.I.”

We further observe that page C.3 of the site drainage plan drawings specify the source of the fill sand and the testing specifications. In the lower right hand of the page, the engineer’s “NOTE” reads:

A. STRIP GRASS/ORGANIC MATERIAL FROM SITE 6"±
B. BEGIN FILL (FROM SITE ON BORROW PIT)-T0 BE DETERMINED BY GEOTECHNICAL ENGINEER/TESTING LAB ENGINEER.
C. BEGIN FILL AT BUILDING (5'-0' PAST BUILDING LINE) AND TAPER TO EXISTING GRADE WITH 4:1 SLOPE.
D. COMPACT EACH 6' TO 8' LIFT TO 95% STANDING PROCTOR. ALL PASSING TEST WILL BE PAID BY OWNER. ALL FAILING TEST WILL BE PAID BY CONTRACTOR.
E. FINISHED PAD TO BE 10" BELOW FINISH FLOOR 143.50'

Ron Smith, founder of Smith and Raley, Inc., the consulting engineering firm hired by Murphy to design the project, testified that he was also hired by Murphy to monitor the construction of the pad by Burnell. Smith testified that the pad was built four to five feet high of select material compacted to certain specifications. A pad’s purpose is to support the foundation. Smith stated that he assisted in finding the select fill material, “a zero to fifteen PI material sand” from borrow pits on the 160-acre site. He supervised the construction of the pad with CTL, a testing lab, and monitored the testing performed on each 8" lift.

With respect to the qualities of the pad called for by the specifications, Smith testified that the specifications required a pad consisting of a compact, gradable material with good bearing capacity. He stated that they had a compact specification of 95 percent standard proctor on this job. The pad material must also be trimable — that is, it must be ^capable of retaining its shape after trenches are dug or cut into the pad.

Elaborating on the material used to construct the pad, Smith rejected the description of the pad as “earthen” as too inclusive. He stated that the pad was more accurately called a “select fill pad” or “sand pad” because under the uniform classification of soils, the soil used in this pad, which had a zero to fifteen PI (plasticity index), was a sand classification. Smith also explained that while this type of soil (sand) loses its compaction and bearing capacity when it becomes soaked with water, it has the desirable quality of regaining its compaction and bearing capacity when it drains. In fact, its compaction increases to 100%, he said.

Disputing Smith’s testimony that the pad in this case met the plans and specifications, Aztec contends that the pad in fact did not meet the specifications of a “sand pad” because it did not drain the water caused by the heavy rains. Instead it became muddy, rutted, and it “pumped” when it became saturated with water. Using statements elicited at trial from engineers Ron Smith and Fred White regarding the phenomenon of “pumping,” Aztec argues that the pad had a high silt content, retained moisture and acted like Jello when it became wet due to pumping.

Smith testified that when the pad was finished, Buster Netherton, the pad subcontractor, put a very slight crown or grade on the pad so that it |inwould drain rain water. At that point, said Smith, the pad would drain. However, Smith testified that this grade was not maintained, and the contractor selected the back or east side of the foundation to make the first 500' pour of a seven and one-half inch thick panel (slab), which subsequently acted as a dam for water attempting to drain off the pad. According to Smith, there was no work performed between March 7 and the end of the month due to rains and standing water on the pad. Bonomo instructed Aztec to “dewater” the pad using various methods such as hand pumps and sump pumps. On March 30, Smith went to the site and became upset when he observed ruts caused by trucks driven by Aztec personnel on the wet pad. He stated that the ruts prevented the pad from draining properly.

Gene Gardner, an engineer for Maxim Technologies, Inc. (“Maxim”), testified at trial as an expert for Aztec. Gardner generated a report (“Maxim report”) for Murphy, rendering opinions regarding soils at the subject site for purposes of a foundation for the proposed warehouse prior to Murphy’s decision to enter a contract with Bonomo for the warehouse construction. The following language is from page 5 of the Maxim report:

The soils generally encountered have a low susceptibility to shrink and swell with variations in moisture content. Consequently, the slab for the proposed structure can be placed directly on the prepared subgrade. If fill material is required at the site to achieve the desired elevation, it is recommended that a clayey sand or sandy clay be used. ... The fill should be placed in lifts of eight (8) inches or less and compacted to a minimum of ninety (90) percent of the Modified Proctor Density (ASTM D-1557) (Emphasis added).
CONSTRUCTION PROCEDURES
lnThe upper soils at the site are fine grained materials composed of a significant silt fraction. Silty soils are subject to extreme changes in shear strength with varying moisture conditions and, if construction is initiated during wetter seasons of the year, it may be very difficult to move equipment about the site. Also, once silt becomes saturated, compaction operations can be seriously hampered by a tendency of the silt to “pump”. Consequently, it is recommended that adequate site drainage be established prior to and continued during and following construction operations to prevent ponding of water on or adjacent to the construction area and subsequent saturation of the soil. Compaction operations may be expedited by using light compaction equipment and thin lifts of soil. Rolling only as necessary to obtain compaction is advisable because further repetitive loading may cause the subgrade to “pump ”. Once the silt begins to “pump”, it generally becomes necessary to undercut the poor soil, waste it and replace it with controlled fill. (Emphasis added).

Gardner testified regarding the statements in the report quoted above. Gardner defined the terms “lift” as simply meaning a “layer,” and he defined “sub-grade” as the material below the lift ... “you would start out with no-no fill material on it.” “The subgrade is the material that’s there when you place the next layer on top of it.” Gardner did not testify that the soil tested came from the borrow pit site used for the pad. He had never visited the site himself, having acquired soil samples from the undisturbed property before construction of the pad. He did not know if the samples came from the building site.

Gardner also testified regarding the properties of the three types of materials that make up a soil: sand, silt and clay. Regarding sand, Gardner stated that “[s]and is a coarse material, and it sort [sic] of defined as those materials that are larger than — smaller than a quarter inch and larger than one two-hundredths of an inch in diameter.” It does not stick together and, “[i]n piles water will flow through it.” Gardner acknowledged that there are |1gmany combinations of these three soil types, but he did not testify regarding their properties, except to note that the upper soils at the site were composed of a significant silt fraction, i.e., over thirty percent.

Aztec’s position then, is that the pad was supposed to be constructed of sand, but inasmuch as rainwater did not flow through the pad as it contends it should have, it was not a “sand pad.” Instead, due a high silt content, argues Aztec, the pad retained water and became Jello-like when saturated due to pumping of water from the subgrade when equipment was driven over it.

Based on the record, we conclude first that Aztec’s argument that Bonomo and Aztec were mutually mistaken as to the construction material comprising the pad is without merit. Smith’s testimony leads to the reasonable conclusion that the phrase “sand pad” is a technical term referring to a pad classification that consists of materials containing a certain level of sand properties,- and a zero to fifteen PI (plasticity index) meets the sand classification. Aztec’s position that the phrase “sand pad” required that the pad consist of sand alone — in a sense- — pure sand, defined as materials that are smaller than a quarter inch and larger than one two-hundredths of an inch in diameter, is simply not tenable in light of the clearly written “fill” specifications. Even the Maxim report drafted by Aztec’s expert witness, Gardner, recommended that the pad be constructed from “a clayey sand or sandy clay.”

There is no doubt that the poor weather led to the saturation of the pad with water. The unrelenting wet weather coupled with the time [ ^pressures and contractual delay damages unfortunately led to the breakdown in communications, and ultimately, Aztec’s decision to walk off the job. The trial court concluded that Aztec’s actions constituted a breach of contact.

Bonomo and Aztec are seasoned construction companies. Each visited the site and inspected the pad. It strains credibility to believe Aztec would not have recognized that the pad was unsuitable for the concrete foundation if, in fact, that was the case. The evidence in this record supports the conclusion Fred White, the subsequent contractor, used the same materials to repair the damaged pad, which indicates that the material used to make the pad was not the problem.

For these reasons, we conclude that the trial court did not err in concluding that the pad did meet specifications and in finding that Aztec breached its contract with Bonomo. The record also reasonably supports the trial court’s findings, which Aztec did not specifically dispute on appeal, that Aztec was not justified for failing to communicate with Bonomo and abandoning the job, and therefore leaving the job uncompleted, resulting in damages sustained by Bonomo. Thorn v. Caskey, 32,310 (La.App.2d Cir.9/22/99), 745 So.2d 653. Although the poor weather was manifestly the greatest source of the problems Aztec encountered in performing its end of the contract, this court cannot undermine a contract simply because it was, as in this situation, a bad deal for one of the parties. Billingsley v. Bach Energy Corp., supra.

In its other assignment of error, Aztec contends that the trial court | uerred as a matter of law or committed manifest error in overruling its exception of failure to join a party under La. C.C.P. art. 641. The party Aztec alleges should have been joined is Murphy. Aztec argues that because it has no contractual privity with Murphy, it cannot sue Murphy ex contrac-tu for damages it suffered as a result of Murphy’s alleged breach of contact to provide its general contractor, Bonomo, with a pad meeting specifications. Accordingly, Aztec contends that Murphy must be joined as a party in order to share in liability for the allegedly defective “sand pad.”

Because we conclude that the trial court was correct in reaching the conclusion that the evidence did not support Aztec’s allegation that the pad did not meet the specifications, the question of whether Murphy should have been joined as a party to answer for a defective sand pad is moot. Accordingly, this assignment is without merit.

Conclusion

For the reasons stated herein above, the judgment of the trial court is affirmed. Costs of this appeal are assessed against the appellant.

AFFIRMED.

      . "PI” refers to "Plasticity Index.” The plasticity index of a soil is the numerical difference between its liquid limit and its plastic limit. The liquid limit of a soil is that water content at which the soil passes from a plastic to a liquid state. The plastic limit of a soil is the opposite, that is, the lowest moisture level at which a soil remains plastic without crumbling. “Method of Tests for Plasticity Index of Soils.” California Department of Transportation, Engineering Service Center. This index measures sensitivity to moisture change and is important when plans call for aggregate to be used in cement, asphalt and foundation construction.

      . Smith explained in his testimony that there are several types of ''pumping.'' Most familiar is the common phenomenon of bringing water to the surface of the ground by patting it with something such as your foot The other type of pumping involves making moisture saturated soil spongy and like Jello. (See also, Gardner's testimony). This latter type can occur by driving heavy equipment over soils susceptible to pumping.

      . The record does not indicate Netherton's relationship.as a principal or employee to the subcontractor of record for the pad, B J. Bur-nell.


author: 1 iDECUIR, Judge.

text:
    Lola BOWIE, et al. v. RAPIDES PARISH SCHOOL BOARD, et al.
    No. 03-1369.
    Court of Appeal of Louisiana, Third Circuit.
    March 3, 2004.

      Kay Hilgerson Michiels, Laura N. Sylvester, Walker, Passman & Michiels, Alexandria, LA, for Defendant/Appellee Rap-ides Parish School Board.
    Malcolm X. Larvadain, Edward Larva-dain, Jr. & Associates, Alexandria, LA, for PlaintiffAppellant Lola Bowie.
    Court composed of BILLIE COLOMBARO WOODARD, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
   1 iDECUIR, Judge.

This is an appeal from a grant of an exception of prescription extinguishing a claim of inadequate supervision arising out of the sexual abuse of a minor.

FACTS

In November of 2000, D.T. was a mentally impaired thirteen-year-old student at Alexandria Junior High. On or about November 3, 2000, a sexual act occurred between D.T. and a fellow student. The act was confirmed by medical tests on November 22, 2000. On November 6, 2001, Lola Bowie filed suit individually and on behalf of D.T. against the Rapides Parish School Board.

The school board filed an exception of prescription alleging the action was prescribed by the liberative prescription of one year set forth in La.Civ.Code art. 3492. The trial court granted the exception and dismissed Bowie’s claims with prejudice. Bowie lodged this appeal.

PRESCRIPTION

Bowie assigns as error the trial court’s decision that La.Civ.Code. art. 3492 provides the applicable prescriptive period of one year. Bowie contends that the trial court should have applied the three-year prescriptive period provided in La.Civ. Code. art. 3496.1. We agree.

Prescription runs against all persons, including minors, unless exception is established by legislation. La.Civ.Code. arts. 3467 and 3468. Delictual actions are generally subject to a liberative prescription of one year, commencing from the day injury or damage is sustained. La.Civ.Code. art. 3492. However, the legislature has established a number of exceptions to the general one-year prescriptive period, among them La.Civ.Code. art. 3496.1. That article provides:

An action against a person for abuse of a minor is subject to a liberative prescriptive period of three years. This prescription commences to run from the day the minor attains majority, and this prescription, for all purposes, shall be suspended until the minor reaches [ gthe age of majority. This prescriptive period shall be subject to any exception of peremption provided by law.

The term “abuse”' is not defined in the article. However, in Dugas v. Durr, 96-744 (La.App. 3 Cir. 3/6/98), 707 So.2d 1368, writ denied, 98-910 (La.5/15/98), 719 So.2d 464, this court adopted the definition of “abuse” set forth in La.Ch.Code. art. 603(1) for purposes of La.Civ.Code. art. 3496.1. There we found that a claim of “inadequate supervision” resulting in sexual abuse was subject to the three-year prescriptive period of La.Civ.Code. art. 3496.1.

Louisiana Children’s Code Article 603(1) provides a definition of “abuse” for purposes of determining whether a minor is a “child in need of care”:

(1) “Abuse” means any one of the following acts which seriously endanger the physical, mental, or emotional health and safety of the child:
(a) The infliction, attempted infliction, or, as a result of inadequate supervision, the allowance of the infliction or attempted infliction of physical or mental injury upon the child by a parent or any other person.
(b) The exploitation or overwork of a child by a parent or other person.
(c) The involvement of the child in any sexual act with a parent or any other person, or the aiding or toleration by the parent or the caretaker of the child’s sexual involvement with any other person or of the child’s involvement in pornographic displays, or any other involvement of a child in sexual activity constituting a crime under the laws of this state.

(Emphasis ours.)

The school board protests that application of La.Civ.Code art. 3496.1 to this case treats the board as if it were a sexual perpetrator. Bowie does not claim that the school board or its employees abused D.T. through any type of physical contact. However, Bowie claims the school board did commit an “abuse of a minor,” as defined by La.Ch.Code art. 603, by inadequately supervising D.T. while she was left in its care at Alexandria Junior High.

|3In Dugas we said:

La.Ch.Code art. 603 contains three different definitions of “abuse.” The first deals with abuse of a minor through physical or mental injury; the second deals with “[t]he exploitation or overwork of a child by a parent or any other person”; and the final definition pertains to the involvement of the minor in sexual acts. As pointed out by Breaux in his brief, the only definition containing a reference to “inadequate supervision” is the one involving physical and mental abuse. The allegations are clear that Angel suffered sexual abuse. Breaux contends that La.Ch.Code art. 603(l)(a) is inapplicable in this case because La.Ch.Code art. 603(l)(c) governs sexual abuse, and it does not proscribe abuse as a result of “inadequate supervision.”
Prescription statutes are to be strictly construed against prescription and in favor of the obligations sought to be extinguished by them. Wimberly v. Gatch, 93-2361 (La.4/11/94); 635 So.2d 206; Bouterie v. Crane, 616 So.2d 657 (La. 1993). Breaux’s reading of the statute is overly narrow and robs the provision of its proper context. It is primarily a statute defining abuse. The fact that abuse is sexual does not diminish the fact that it is physical and likely mental abuse as well. Moreover, the inclusion of La.Ch.Code art. 603(l)(e) does not require reducing the protection provided by La.Ch.Code art. 603(l)(a). In fact, we find that La.Ch.Code art. 603(l)(c) broadens the definition of abuse by including participation in pornographic displays which might not actually encompass physical or mental abuse.

Dugas, 707 So.2d at 1371-72.

Thus, in Dugas we recognized that the three-year liberative prescription of La. Civ.Code art. 3496.1 is applicable to an inadequate supervision claim.

The school board attempts to distinguish Dugas on the grounds that it involved an overnight sleep-over situation. We do not find this distinction persuasive. The fact that the school board was not responsible for the overnight supervision of D.T. may lessen its exposure to risk but it in no way reduces its responsibility to provide adequate supervision. Nor are we persuaded that the nature of the relationship between D.T. and the school board is so different than the relationship in Dugas as to remove the school board from the purview of the statute.

Accordingly, we find the trial court erred in applying the one-year liberative prescription of La.Civ.Code art. 3492. The three-year prescriptive period of La.Civ. Code art. 3496.1 is applicable to this case.

| CONCLUSION

For the foregoing reasons, the judgment of the trial court is reversed and the case remanded for trial on the merits. All costs of these proceedings in the amount of $1,035.74 are taxed to appellee, Rapides Parish School Board.

REVERSED AND REMANDED.