author: MICHAEL E. KIRBY, Judge.

text:
    Henry EVANS, M.D. v. LOUISIANA PATIENT’S COMPENSATION FUND. John Lee Talbert, Jr. and Cynthia Talbert v. Louisiana Avenue Medical Center, Inc. Paulette Scott on her Own Behalf of and as Natural Tutrix of Her Minor Child, Yoshiandra Peshawn Williams v. Dr. David Golden; Gecis Medical Center, Corporation; United Medical Center; Dr. Roberto Mendoza; Dr. William Grant; Dr. Don E. Carter; and XYZ Insurance Companies. Lillie Mae Celestin, Joe Spencer, Shirley S. Nero, Raymond Spencer and Brenda Spencer v. State of Louisiana, Medical Center of Louisiana at New Orleans, Dr. John Doe and Dr. Henry Evans.
    Nos. 2002-CA-0538, 2002-CA-1486, 2002-CA-1809, 2003-CA-0187.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 25, 2004.

      Bruce C. Waltzer, Joel Waltzer, Waltzer & Associates, New Orleans, LA, for Henry Evans, M.D.
    Stephanie B. Laborde, Milling Benson Woodward, L.L.P., Baton Rouge, LA, for Louisiana Patients’ Compensation Fund.
    (Court composed of Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR.).

      . Henry Evans, M.D. v. Louisiana Patients’ Compensation Fund, 2002-CA-0538; John Lee Talbert, Jr., et al. v. Louisiana Avenue Medical Center, Inc., 2002-CA-1486; Lillie Mae Celestin, et al. v. State of Louisiana, et al., 2003-CA-0187.

   MICHAEL E. KIRBY, Judge.

All of these cases involve physicians who had placed a deposit of $125,000.00 with the Louisiana Patients’ Compensation Fund (“PCF”) as proof of financial responsibility. By doing so they were classified as “self-insured” under the Louisiana Medical Malpractice Act for the first $100,000.00 of potential liability to a claimant. In three of the cases, all involving Dr. Henry Evans, upon receiving notice of the claim, the PCF had notified the claimants that the physician was qualified for the PCF coverage. However, during the pendency of those claims, the physician’s deposit was depleted to satisfy prior unrelated malpractice claims and he did not, after notice, replenish the deposit within the specified time. The PCF then notified the physician and the claimants that they no longer provided coverage for the physician.

In the fourth case, the facts are slightly different. The physician, Dr. David Golden, was a self-insured member of the PCF at the time of the alleged malpractice but by the time the claim was made his deposit had been exhausted for Dan unrelated claim. The PCF thus notified the claimant that the physician was not covered by the Fund.

The issue we must decide is whether, under these facts, the PCF provides coverage for these claims.

All of the plaintiffs’ claims were based upon alleged medical malpractice. In order for a patient to bring a claim pursuant to the Louisiana Medical Malpractice Act, the physician against whom the claim is being filed must be a qualified health care provider. A health care provider is a person licensed by the state to provide health care or professional services as a physician. La. R.S. 40:1299.41(A)(1). To be qualified, the health care provider must either be insured by a commercial malpractice policy or be self-insured. If self-insured, the health care provider must file proof of financial responsibility in the form of a $125,000.00 deposit with the PCF. La. R.S. 40:1299.42(A)(1). The health care provider must also pay a surcharge as assessed by the PCF, regardless of whether he/she is self-insured or insured by a commercial malpractice policy. La. R.S. 40:1299.42(A)(2). A patient may recover a maximum of $500,000.00 from a qualified provider for a claim made pursuant to the Act. La. R.S. 40:1299.42(B)(2). The self-insured provider is liable for up to $100,000.00 plus interest and the PCF is responsible for the remainder up to the maximum amount. La. R.S. 40:1299.42(B)(3)(a). In addition, a self-insured provider is only liable to a patient for malpractice to the extent and in the manner specified in the Act while lathe security remains undiminished. La. R.S. 40:1299.45(A)(1). If the amount placed on deposit is seized pursuant to a judgment, the self-insured provider has five days to replace the amount seized. La. R.S. 40:1299.42(E)(1). Failure to timely replace the amount seized results in termination of enrollment with the PCF. Id.

Since La. R.S. 40:1299.42(E)(1) is silent as to whether claims pending at the time of such termination are covered, both plaintiff and the defending physician claim the excess coverage offered by the PCF applies. Conversely, the PCF argues that coverage was terminated immediately upon the physician’s failure to reinstate his deposit after the passage of five days according to La. R.S. 40:1299.42(E)(1). The PCF contends that strict construction must be applied to the Louisiana Medical Malpractice Act since it derogates from a tort victim’s rights. Hutchinson v. Patel, 93-2156 (La.5/23/94), 637 So.2d 415, 420. This would allow a plaintiff to sue the unqualified physician in tort without a malpractice cap.

In Talbert v. Louisiana Ave. Medical Center, Inc., 2002-CA-1487; Paulette Scott, et al v. Dr. David Golden, et al., 2002-CA-1809; and Lillie Mae Celestin, et al. v. State of Louisiana, et al., 2003-CA-0187, the trial courts held that the respective medical doctors were covered by the PCF and one trial court noted that the PCF had certified to the plaintiff/patient that Dr. Evans was a qualified provider, thus, the patient should not have to bear the burden of retroactive cancellation.

STATEMENT OF THE LAW:

|4A preliminary problem exists in the first of this series of consolidated cases, Henry Evans, M.D. v. Louisiana Patients’ Compensation Fund, 2002-CA-0538.

Dr. Evans brought a declaratory judgment suit against the PCF asking that the court determine whether he was covered by the PCF for a claim filed against him by Saralyn Stevenson. On January 23, 2002, after the trial court had ruled in this case, Ms. Stevenson dismissed her case against Dr. Evans.

As noted by our brethren in the Louisiana Fifth Circuit in State in the Interest of C.W., 97-1229 (La.App. 5 Cir. 4/13/98), 712 So.2d 245:

It is a well settled principle of law that appellate courts will not render advisory opinions from which no practical results can follow. McChesney v. Penn, 29,776 (La.App. 2nd Cir.8/20/97), 698 So.2d 705; Aycock v. Union Parish School Board, 550 So.2d 814 (La.App. 2nd Cir.1989); Johnson v. Johnson, 599 So.2d 450 (La.App. 2nd Cir.1992). Absent a justiciable issue, that is, one brought by adverse parties with opposing claims ripe for judicial determination, any action by the court is improper. Perschall v. State, 96-0322 (La.7/1/97), 697 So.2d 240. The Louisiana Constitution implicitly prohibits courts from issuing advisory opinions which will not affect the parties’ rights. Midhoe v. Commission on Ethics for Public Employees, 646 So.2d 351, (La.1994); Church Point Wholesale Beverage v. Tarver, 614 So.2d 697 (La.1993).

Id. 3^4, 712 So.2d at 246.

Upon the dismissal of Ms. Stevenson’s case, this one appeal became one about which there exists no justiciable controversy. To proceed to judgment in that case would be tantamount to rendering an advisory opinion. Since we cannot render advisory opinions, we dismiss the appeal of Dr. Evans in 2002-CA-0538 as moot.

In the three cases remaining before us, Talbert v. Louisiana Ave. Medical Center, Inc., 2002-CA-1486, Paulette Scott, et al. v. Dr. David Golden, et al., 2002-CA-1809, and Lillie Mae Celestin, et al. v. State of Louisiana, et al., 2003-CA-0187, the issue is whether PCF coverage was terminated as to the plaintiffs who had claims pending against the physicians in the circumstances described above.

While these eases present a res nova issue in this circuit, two other circuits have considered it. With the same factual background Perdue v. Sudderth, 02-357 (La.App. 5 Cir. 10/29/02), 831 So.2d 1050, writ denied 2002-2821 (La.2/21/03), 837 So.2d 628, held:

We find the failure to replenish the deposit should terminate enrollment of the provider, but only as to claims filed after the date of disqualification. The PCF should be responsible for those claims which were filed while the provider was qualified and covered by the Act. The PCF notified Perdue that Dr. Sudderth was a qualified health care provider and she relied upon this notification and proceeded with her claim pursuant to the requirements of the Act. Therefore, her rights under the Act should not be terminated, and the PCF should not be able to deny coverage, because the doctor subsequently became disqualified due to his own failure to replenish his deposit. Accordingly, we find that the PCF must provide coverage for the claim brought by Perdue. Id. at 5, 831 So.2d at 1052-1053.

Likewise, in Taylor v. Clement, 02-561 (La.App. 3 Cir. 12/4/02), 832 So.2d 1089, writ denied 2003-0038 (La.3/28/03), 840 So.2d 571, in the same factual scenario, our brethren of the Third Circuit also held that the physician was a covered health care provider under the Act:

Dr. Clement was an enrolled Qualified] Hfealth] C[are] Provider] on the date of the occurrence of the medical practice, on the date the Taylors filed their claim against Dr. Clement, and on the date the judgment against Dr. | ^Clement was signed. The Act does not expressly state that a healthcare provider, qualified at the time of the medical negligence, qualified at the time of a complaint of medical negligence is filed, and qualified at the time judgment against the healthcare provider is signed, is somehow disqualified when it comes time to pay on the judgment because sometime after these events, the healthcare provider is terminated. Further, the July 3, 2001 letter sent by the PCF to counsel for the Taylors stated that Dr. Clement was “no longer a qualified provider.” We construe the phrase, “no longer” to mean after the date of the letter and henceforth.
Support for our interpretation of the PCF’s termination notice can be found in a recent fifth circuit case, Perdue v. Sudderth, 02-357 (La.App. 5 Cir. 10/29/02); 831 So.2d 1050, cited by the Taylors in their supplemental brief, where similar to the present case a physician allowed his self-insurance deposit with the PCF to lapse. In Perdue, the physician’s certificate of self-insurance deposit was still held by the PCF at the time the plaintiff filed her claim against Dr. Sudderth. However, Dr. Sudderth had other claims pending against him and one claimant obtained a judgment in her favor in the amount of $375,000.00 therefore, the certificate of deposit held by the PCF on behalf of Dr. Sudderth was used to satisfy that judgment. Dr. Sudderth, after receiving notice from the PCF to restore his deposit, failed to do so and his status as a QHCP was terminated as of August 6, 1996. Like Dr. Sudderth, Dr. Clement in the present case failed to restore his deposit after notification of its seizure by another claimant. The PCF asserted, as it does in the present case, that because Dr. Sudderth’s qualification was terminated, it was no longer responsible for payment on her claim. The fifth circuit noted, as have we, that the Act is silent as to what happens to pending claims, or for that matter, claims that have reached final judgment, when a self-insured doctor’s qualification is terminated. Ultimately, the fifth circuit concluded that “the failure to replenish the deposit should terminate enrollment of the provider, but only as to claims filed after the date of disqualification.” Id. at p. 5, 831 So.2d at 1052. Like the plaintiff in Perdue, the PCF notified the Taylors that Dr. Clement was a QHCP and they proceeded with their claim pursuant to the Act’s requirements. Therefore, as the fifth circuit found in Perdue, the Taylors’ “rights under the Act should not be terminated, and the PCF should not be able to deny coverage, because the doctor subsequently [and in the |7present case, after the Tay-lors’ claim was reduced to a judgment in their favor] became disqualified due to his own failure to replenish his deposit.” Id. Thus, we find that for purposes of the Taylors’ case, Dr. Clement is a QHCP and summary judgment in favor of the Taylors on this issue was.proper. Id. at 9-11; 832 So.2d at 1095-1096

In our view the PCF is, for all intents and purposes, an insurer covering claims for a qualified health care provider [“QHCP”] for sums over $100,000.00 up to the statutory maximum. Tucker v. Lain, 98-2273, p. 9 (La.App. 4 Cir. 9/5/01), 798 So.2d 1041, 1047. It is essentially in no different position than an insurer who issues a liability insurance policy with a specified deductible. If an insured goes bankrupt, the insurer is still liable up to policy limits; the insurer does not drop down to cover the deductible unless the contract of insurance so provides or a statute so mandates. See, Clark v. Ransom, 595 So.2d 710 (La.App. 5 Cir.1992); Tucker v. Lain, supra. As a de facto insurer that charges a QHCP a surcharge (i.e., premium), the PCF is in the position to set an appropriate surcharge to cover the extra amounts necessary to protect itself from the injured party’s claim. La. R.S. 40:1299.44(A). The annual surcharge can be adjusted upwards or downwards in accordance with law and the experiences of the PCF. Id.

The thrust of our jurisprudence and statutory scheme clearly establishes that if a health care provider posts the required bond to be self-insured and pays the surcharge required by the PCF, the health care provider becomes a QHCP having all of the benefits of La. R.S. 40:1299.41 et seq. (the “Act”). Once the bond is posted and the surcharge is paid, coverage occurs. Williams v. St. Paul Ins. Companies, 419 So.2d 1302 (La.App. 4th Cir.1982), citing La. R.S. 40:1299.42(A); Mehalik v. Morvant, 451 So.2d 1321 (La.App. 1st Cir.1984). Clearly, for there to be coverage, the surcharge must be paid before the alleged tort occurs.

In Abate v. Healthcare International, Inc., 560 So.2d 812 (La.1990), the Supreme Court held that where a wrongful act occurs before the health care provider obtains a “claims-made” medical malpractice commercial insurance policy and pays the surcharge, and the plaintiff then notifies the health care provider of his claim, the Act is not applicable to the claim. Implicitly, the Court held that if on the date of the occurrence of the alleged wrongful act the health care provider had in place either insurance or a bond (as a self-insured) and paid the surcharge, the Act protects the health care provider as a QHCP. Further, by implication, the Court analogized and equated an “occurrence” policy of commercial malpractice insurance to a health care provider who has elected to be self-insured, i.e., the self-insured bond is equivalent to an “occurrence” policy of insurance. See also, Clark v. Ransom, supra; Hedgepeth v. Guerin, 96-1044 (La.App. 1 Cir. 3/27/97), 691 So.2d 1355.

In pertinent part, La. R.S. 40:1299.45 provides:

A. (1) Only while malpractice liability insurance remains in force, or in the case of a self-insured health care provider, only while the security required by regulations of the board remains undiminished, are the health care provider and his insurer liable to a patient, or his representative, for malpractice to the extent and in the manner specified in this Part [23 of Chapter 5 of Title 40 of the Louisiana Revised Statutes.]
|9P. Every policy issued under this Part is deemed to include the following provisions, and any change which may be occasioned by legislation adopted by the legislature of the state of Louisiana as fully as if it were written therein:
(2) Any termination of this policy by cancellation is not effective as to patients claiming against the insured covered hereby, unless at least thirty days before the taking effect of the cancellation, a written notice giving the date upon which termination becomes effective has been received by the insured and the board at their offices. In no event shall said cancellation affect in any manner any claim which arose against the insurer or its insured during the life of the policy.

This language indicates that the legislature intended different rules to be applicable to a self-insured QHCP and a QHCP who has purchased commercial medical malpractice insurance from an insurance company. Whereas a self-insured individual is liable at all times (at the time of both the occurrence and when the claim is made), only a commercial insurer can limit its coverage to the moment when the claim is made. We construe this language as indicating that the legislature intended to make claims against the PCF for a self-insured QHCP to be in the nature of an “occurrence” type policy rather than a “claims made” type policy. Additionally, the Louisiana Supreme Court has distinguished termination of a policy from cancellation of a policy.

|inIf a health care professional elects to purchase a commercial malpractice insurance policy in order to qualify as a QHCP pursuant to the Act and that commercial insurer enters liquidation because of its insolvency, the injured party and the insured have a claim in the insurer’s liquidation for the first $100,000.00 of coverage plus judicial interest. That the injured party and the insured might be unable to recover from the liquidator sums due is of no moment, for the PCF is still liable for the excess, if any. Whether one or multiple claims against the commercial insurer exist is similarly of no moment; the injured parties and insured have multiple claims against the assets of the insurer in the insurer’s liquidation.

In like manner, whether a QHCP is self-insured is irrelevant. The injured party has a claim against the QHCP for the $100,000.00 and judicial interest. The PCF is still liable for the balance over $100,000.00 subject to the statutory maximum. The seizure of the bond is immaterial to coverage under the Act. That is, if the surcharge has been paid, as long as the self-insured’s bond was in existence and posted at the time of the wrongful conduct, coverage is afforded by the Act.

The PCF complaints about the asserted shortcomings of the Act for protection of the PCF are best directed to the legislature.

CONCLUSION:

For the above reasons the appeal in 2002-CA-0538, Evans v. Louisiana Patients Compensation Fund is dismissed as moot. The In judgments in 2002-CA-1486, Talbert, et al. v. Louisiana Avenue Medical Center, Inc, 2008-CA-0187, Celestin, et al. v. State of Louisiana, et al, and the judgment in 2002-CA-1809, Scott v. Dr. David Golden, et al. are affirmed. All are remanded for proceedings consistent with the views expressed herein.

AFFIRMED AND REMANDED.

JONES, J., Concurs in the Result.

      . Paulette Scott, et al. v. Dr. David Golden, et al., 2003-CA-0187.

      . La. R.S. 40:1299.41, et seq.

      . The surcharge is an annual fee that the PCF receives from each person seeking coverage or continued coverage to administer the Act. La. R.S. 40:1299.44(A).

      . In Anderson v. Ichinose, 98-2157 (La.9/8/99), 760 So.2d 302, the Court holds that expiration of a policy by its terms is a termination, not a cancellation; cancellation is the termination of coverage, with or without cause, by unilateral action of the insurer, whereas termination is the cessation of coverage by reason of the passage of the policy period or the occurrence of some event anticipated by the terms of the contract. In the case at bar, Dr. Golden did not terminate his self-insured bond; nor can one say that seizure of the self-insured's bond is an. anticipated event for one does not presume that a QHCP will commit a covered tort for which he or she will be held liable. Dr. Golden’s bond was cancelled by the action of a third party, i.e., his seizing creditor.


source: Caselaw Access Project

author: MAX N. TOBIAS, JR., Judge.

license: Public Domain

text:
    Cynthia CRAIGE v. Larry BROOME.
    No. 2003-CA-0255.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 25, 2004.
    Robert G. Harvey, Sr., Maria Del Carmen Calvo, Law Offices of Robert G. Harvey, APLC, New Orleans, LA, for Plain-tiffiAppellee.
    Lawrence Galle, New Orleans, LA, for Defendant/Appellant.
    (Court Composed of Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, JR., and Judge LEON A. CANNIZZARO, JR.).
   MAX N. TOBIAS, JR., Judge.

On 13 January 2000, Cynthia Craige (“Craige”), the plaintiff/appellee, filed a petition for damages against attorney Larry Broome (“Broome”), in which she alleged that he assaulted her on 18 March 1999 when she questioned his proposed fee for legal services. On 10 November 2000, Broome filed his answer in which he denied Craige’s claims and in reconvention alleged that she was sent to his office for political reasons to perpetuate a fraud that would result in his embarrassment.

On 1 July 2002, the case was tried. On 26 August 2002, the trial court signed a judgment in favor of Craige and against Broome awarding her $480.00 - in lost wages, $1,725.00 in medical expenses, and $15,000.00 in general damages. The trial court provided written reasons for the judgment in which it found the testimony of Broome and his witnesses unworthy of belief. This devolutive appeal followed.

The trial court’s reasons for judgment included the following findings of fact:

On 18 March 1999, Craige inadvertently entered the law office of Broome while looking for another attorney’s office. She described her legal issue to |2Broome to see if he would be interested in helping her and asked him what he would charge. When Craige questioned the quoted fee, Broome became irate and pulled Craige’s chair out from under her, causing her to hit her head on the desk and fall to the floor. Broome then grabbed her by the neck, choked her, and hit her against the wall.

Catina Marie Williams (“Williams”), Broome’s secretary at the time' of the assault, testified that she did not know Craige before the incident. Williams testified that Craige entered the law office asking for another attorney and that Broome, who was also in the room, advised her that the attorney was located a couple of blocks up the street and left the room. Williams testified that Craige asked her if Broome would look at her case, since she was already in his office. Williams relayed the request to Broome, who stated that in return for $500.00, he would take Craige’s case. Williams relayed Broome’s proposed fee to Craige, who asked how Broome could set a fee without even hearing about the case. Williams related this question to Broome, who became irate and returned to the room with Craige. Williams testified that Broome stated the following to Craige: “Bitch, I don’t know who you are, or where you came from, just get the heck out of my office.” Williams testified that Craige responded: “A man in your profession, talking to me like this? All I asked you was how could you give me a price, and you don’t know what my case is. * * * I’m going to get out of your office, but may God help you!” At that point, Williams testified, Broome rushed up to Craige and pulled her chair out from under her, causing her to hit her head on Williams’ desk as she fell to the floor. Craige was crying, as she stood up. Broome ■ then slammed Craige’s head against the wall hard enough to leave an imprint from her makeup. Williams testified that the police came to the scene and took her statement | aand that she quit her employment the same day; she had worked for Broome for two years at that point.

Craige testified to the same facts as Williams, with the addition of the following details. She testified that she worked as a dialysis technician. The name of the attorney she was looking for was Henry Julian. Broome stated the following when he reen.tered the room after Craige questioned his proposed fee: “Look black bitch, I don’t need your money, just get the hell out of my office.” Craige testified that Broome then grabbed the leg of the chair she was sitting in and pulled it, flipping her over and causing her to hit her head on Williams’ desk. She was crying and trying to grab the phone to call the police when Broome grabbed her neck and shoved her against the wall. The police came and took her statement.

Craige also testified that she went to her doctor the next day for neck, shoulder, and leg pain. She testified that she received physical therapy for four months and continues to have neck, arm, and shoulder pain, which will probably persist the rest of her life. Craige provided medical bills to substantiate her claims of injury and the cost of her treatment. She also testified that she missed three days of work, which amounted to $480.00 in lost wages. Craige provided payroll documents to substantiate her lost wages.

Several witnesses testified on behalf of Broome. Patricia Ann Anderson (“Anderson”) testified that she was a client of Broome. Anderson testified that prior to the 18 March 1999 incident, Williams introduced her to Craige outside Broome’s office. Anderson also testified that in May or June 1999, she spoke with Williams at a bus stop, and Williams, while laughing, told her about the 18 March 1999 incident and stated: “They got Larry. * * * We got him”. On redirect, Anderson clarified that Williams told her that Mr. Broome and Mrs. Craige were in |4a fight and that Ms. Williams reminded her that she had met Craige outside Broome’s law office before the incident.

Broome’s testimony was contradictory to that of Craige and Williams. He testified that when Craige initially entered his law office looking for another attorney, he told her he thought the attorney was located down the street; and he allowed her to use the yellow pages to find the exact address. Broome returned to his inner office. When Williams relayed Craige’s' request that he take a look at her case, he responded that he was not interested in a case from a fellow attorney. Williams relayed Broome’s message to Craige and returned to Broome’s inner office with a repeated request from Craige that he speak with her about her case. Again, Broome instructed Williams to tell Craige that he was not interested and was too busy to take the case. When Williams returned to his office a third time with the same request from Craige, Broome went out to talk to Craige. At that point, Broome testified, Craige sat in a chair and refused to leave the office until he agreed to take her case. Broome then told Craige that she should leave; Craige, however, began screaming and fell out of the chair, which she then threw across the room. Broome denied yelling at Craige or calling her names; he also denied physically touching or harming her in any way. Furthermore, he described himself as handicapped to the point of walking with a limp and being unable to dump Craige out of the chair by lifting the leg of the chair.

On appeal, Broome argues that the evidence the trial court relied on to find in Craige’s favor was the result of a conspiracy against him and that the alleged assault was staged. He also argues that the monetary judgment should be set aside because no medical evidence was presented at trial and the monetary judgment was the result of further fraud.

IfiCraige argues that the trial court ruling was supported by the evidence and testimony and that the award of medical expenses, lost wages, and general damages was commensurate with her injuries.

In Harvey v. Cole, 2000-1849, p. 3-4 (La.App. 4th Cir.1/23/02), 808 So.2d 771, 775-776, this Court stated:

The standard of appellate review of a trial court’s findings of facts was enunciated in Mistich v. Volkswagen of Germany, Inc., 95-0939, pp. 4-5 (La.1/29/96), 666 So.2d 1073, 1077, as follows:
It is a well settled principle that an appellate court may not set aside a trial court’s finding of fact unless it is clearly wrong. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court-may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly wrong. Rosell, supra at 845; Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d 967 (La.1985); Arceneaux, supra at 1333. Where the factfinder’s conclusions are based on determinations regarding credibility of the witnesses, the manifest error standard demands great deference to the trier of fact, because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell, supra at 844. The reviewing court must always keep in mind that if a trier of fact’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even if convinced that if it had been sitting as trier of fact, it would have weighed the evidence differently. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Housley v. Cerise, 579 So.2d 973 (La.1991); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990).
For the reviewing court, the issue to be resolved is not whether the .trier of fact was wrong but whether the factfin-der’s conclusions were reasonable. Stobart, supra at 883; Theriot v. Lasseigne, 640 So.2d 1305 (La.1994).

Accordingly, unless this court finds that the trial court’s factual findings were clearly erroneous, the trial court’s judgment must be affirmed.

The evidence in the record supports the trial court’s findings of fact and the resulting judgment in favor of Craige. Craige and Williams testified consistently | (¡regarding the progression of events on 18 March 1999. Although Broome testified contrarily, the trial court specifically found his testimony, along with that of his witness, unworthy of belief. The trial court’s conclusions tvere clearly based on the credibility of the witnesses. Based on our review of the entire record, we find that the trial court’s findings of fact are consistent with the evidence and the testimony presented at trial. Thus, we find nothing in the record to indicate that the trial court’s findings of fact are clearly wrong or manifestly erroneous.

DAMAGES

In Harvey v. Cole, supra at 13 808 So.2d at 781, this Court stated:

In Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), our Supreme Court set forth the standard of review of general damage awards as follows:
The standard for appellate review of general damage awards is difficult to express and is necessarily non-specific, and the requirement of an articulated basis for disturbing such awards gives little guidance as to what articulation suffices to justify modification of a generous or stingy award. Nevertheless, the theme that emerges from Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963) through Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), and through Reck [v. Stevens, 373 So.2d 498 (La.1979)] to the present case is that the discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.
While we must defer to the great, even vast discretion of the trier of fact in the assessment of general damages, the manifest error standard controls on the issue of the assessment of special _[2damages. Johnson v. State Through Department of Public Safety and Corrections, 95-0003 (La.App. 1 Cir. 10/6/95), 671 So.2d 454.

Craige provided testimony and medical bills in support of her claim of physical injury and the cost of her treatment. Craige also testified and provided payroll forms to substantiate her claim of lost wages. The trial court’s award of special damages is consistent with the evidence in the record, and we find no manifest error in the awards for special damages.

The trial court awarded $15,000.00 to Craige in general damages. This award is not unreasonable based on the facts of this case, and we find no abuse of discretion.

Accordingly, we affirm the judgment of the trial court.

AFFIRMED.


author: N. TOBIAS, JR., Judge.

text:
    STATE of Louisiana v. Gerald PIERRE.
    No. 2004-KA-0010.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 25, 2004.

      Eddie J. Jordan, Jr., District Attorney, Nick Orechwa, Assistant District Attorney, New Orleans, LA, for PlaintiffiAppellee.
    Karen G. Arena, Louisiana Appellate Project, Metairie, LA, for Defendant/Appellant.
    (Court Composed of Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, JR., and Judge LEON A. CANNIZZARO, JR.).
   N. TOBIAS, JR., Judge.

The state filed a bill of information on 14 February 2003 charging Gerald Pierre (“Pierre”) with purse snatching, a violation of La. R.S. 14:65.1. At his arraignment on 21 February 2003 he pleaded not guilty. At the preliminary hearing on 21 March 2003 thé trial court found probable cause for attempted purse snatching. After being advised of his right to a jury trial, Pierre elected a bench trial, and on 4 April 2003 he was found guilty of attempted purse snatching. He was sentenced on 10 June 2003 to serve three years at hard labor. He was granted an out of time appeal on 9 September 2003.

At trial Kimloan Nguyen testified that she and her husband own a grocery store. About 5 p.m. on 6 January 2003, a man, later identified as Pierre, entered the store, took a beer from the cooler, and placed it on the counter. He then rushed behind the counter, pushed Ms. Nguyen and her daughter down, and tried to open the cash register, but he could not get it open. Ms. Nguyen screamed for her husband who came into the store and began wrestling with the defendant; however, the defendant got away and ran out the door. As he was leaving, he grabbed Ms. Nguyen’s purse. Ms. Nguyen called 911, and her husband followed Pierre. Her | ^husband retrieved her purse after he wrestled Pierre to the ground. The police arrived and arrested Pierre.

Mr. Lin Tran, the husband of Ms. Nguyen, testified that he was working in the back of his store when he heard his wife and children calling him. He ran to the front and saw a man behind the counter trying to open the cash register. Mr. Tran pulled him away, and suddenly the man turned to run from the store. As he was leaving, Ms. Nguyen screamed that he had her purse. Mr. Tran then ran after the intruder and tackled him about thirty feet from the store. Mr. Tran was able to hold him down until the police arrived.

The parties stipulated that if the police officer who arrested Pierre were to testify, he would state that Pierre was apprehended and arrested in front of the store owned by Mr. Tran and Ms. Nguyen.

In a single assignment of error, Pierre, through counsel, argues that the evidence is insufficient to support the conviction.

The standard for reviewing a claim of sufficiency of the evidence is well settled. Simply stated, all evidence, direct and circumstantial, must meet the | ^reasonable doubt standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See State v. Jacobs, 504 So.2d 817 (La.1987).

Pierre first argues that the evidence is insufficient in that the state never established venue through testimony that the offense occurred in Orleans Parish. He notes that La.C.Cr.P. art. 611, which governs venue, provides that “[a]ll trials shall take place in the parish where the offense has been committed.... ”

Pierre maintains that the conviction cannot stand because of the inadequate proof of venue. However, under La.C.Cr.P. art. 615,

[improper venue shall be raised in advance of trial by motion to quash, and shall be tried by the judge alone. Venue shall not be considered an essential element to be proven by the state at trial, rather it shall be a jurisdictional matter to be proven by the state by a preponderance of the evidence and decided by the court in advance of trial.

A review of the record shows that Pierre failed to file a motion to quash on the basis of improper venue; therefore, appellate review of the issue is precluded. State v. Amato, 96-0606 (La.App. 1 Cir. 6/30/97), 698 So.2d 972.

This argument is without merit.

Pierre next argues that the State submitted insufficient proof that his actions constituted attempted purse snatching.

Purse snatching is defined by La. R.S. 14:65.1 A as:

the theft of anything of value contained within a purse or 14wallet at the time of the theft, from the person of another or which is in the immediate control of another, by use of force, intimidation, or by snatching, but not armed with a dangerous weapon.

La. R.S. 14:27, the attempt statute, provides in pertinent part:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

Specifically the defendant contends that no evidence was offered at trial that the purse contained anything of value or that it was taken from the immediate control of Ms. Nguyen.

When asked what she had been carrying in her purse, Ms Nguyen answered:

Some cash, ID, driver’s license, you know, social security card, personal things....

She also testified that when her purse was taken it was right next to the cash register where she had been standing until Pierre pushed her aside.

Ms. Nguyen’s testimony establishes that her purse contained items of value. As to the purse being in her control, in State v. Anderson, 418 So.2d 551 (La. 1982), the Louisiana Supreme Court affirmed a conviction for purse snatching where the victim’s purse had been taken from the floor near her legs, with only a “vibration” to alert her to the loss. The court held that a purse snatching did not require an actual face-to-face confrontation. Again, in State v. Capote, 474 So.2d 497 (La.App. 4 Cir.1985), this court found that even though the victim of a purse snatching did not feel her purse being removed from the. back of her chair, its taking from the area of her control was sufficient to support the defendant’s conviction. Similarly, in State v. Neville, 96-0137 (La.App. 4 Cir. 5/21/97), 695 So.2d 534, although the victim did |snot see or feel the wallet being taken from her purse, she saw the perpetrator walking off with it, which was sufficient to support the defendant’s conviction for purse snatching.

As in the cases cited above, the evidence in this case was sufficient to prove beyond a reasonable doubt that Pierre “snatched” Ms. Nguyen’s purse. She saw him with the purse, which seconds before had been in her immediate control. Such is adequate evidence even if he merely picked it up from the counter.

This assignment of error is without merit.

Accordingly, Pierre’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

      . At sentencing the judge recommended Pierre be placed in DOC Boot Camp.

      . As we noted in State v. Major, 2002-0133, p. 7 n. 5 (La.App. 4 Cir. 10/2/02), 829 So.2d 625, 631-32:
      In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Scott, 97-0028 (La.App. 4 Cir. 3/18/98), 709 So.2d 339. However, an appellate court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). An appellate court is not permitted to consider just the evidence most favorable to the prosecution, but it must consider the record as a whole since that is what a rationed trier of fact would do. State v. Harge, 98-1321 (La.App. 4 Cir. 2/17/99), 730 So.2d 983. If a rational trier of fact could disagree as to the interpretation of the evidence, the view of the rational trier of fact of all the evidence most favorable to the prosecution must be adopted. The fact finder's discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall, supra. An appellate court is not called upon to determine if it believes the witnesses or whether the conviction is contrary to the weight of the evidence. State v. Smith, 600 So.2d 1319, 1324 (La.1992).

      . Technically, the name and location of the grocery store are not specifically contained within the trial transcript. At trial, when Mr. Tran was asked his occupation, he answered that he worked at "13101 [inaudible] street.” The state in brief notes that although the street name was inaudible to the court reporter, neither the judge nor the attorneys asked Mr. Tran to repeat the street’s name; presumably, the judge and counsel heard it. Further, at the preliminary hearing, Ms. Nguyen testified that the store was located in New Orleans.


author: DAVID S. GORBATY, Judge.

text:
    Sheila Cantrell BORDENAVE v. Michael B. BORDENAVE.
    No. 2003-CA-1534.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 25, 2004.

      Philip C. Ciaccio, Jr., New Orleans, LA, for Plaintiff/Appellant.
    Charlotte E. Viener, Charlotte E. Viener, PLC, New Orleans, LA, for Defen-danVAppellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge DAVID S. GORBATY).
   DAVID S. GORBATY, Judge.

Sheila Cantrell appeals a judgment in a community property dissolution suit filed by her ex-husband, Michael Bordenave, arguing that the trial court erred in not allocating the ownership of the parties’ movable property, in not allocating the parties’ respective retirement benefits, and in calculating an equalizing payment to be made by her to her ex-spouse. For the following reasons, we remand.

FACTS:

Sheila Cantrell and Michael Bordenave were married in September of 1969. Sheila filed for legal separation in November of 1988, establishing the date that the community terminated. The couple was granted a divorce in November of 1989.

Both Sheila and Michael work for Bell-South. Michael began working on January 3, 1972, and Sheila on November 26, 1973. Each party has contributed to a retirement account, and, at the time of trial, each was still actively employed by BellSouth.

| ^Michael left the family domicile in November of 1988. At some point, Sheila was awarded the use and occupancy of the family home. She has continued to live in the home, paying the first and second mortgage notes, and maintaining the residence. Michael testified that he paid the mortgage notes in December of 1988 and January of 1989, but offered no documentary proof. Sheila did not dispute his testimony at trial, but on appeal argues that she also paid the January notes.

At the beginning of the trial, the parties stipulated that the family home was valued at $100,000, that Sheila had possession of community movables valued at $2,450, and that Michael had possession of community movables valued at $2,860.

Michael testified that he initially filed a petition to partition the community in 1989, but for various reasons, the matter never got to trial. The trial court acknowledged that it had reviewed the entire record and agreed with Michael’s testimony, commenting that “... this is unconscionable that it has taken 13 years to get this case tried. The justice system is not supposed to work like this.”

At trial Sheila argued that she was entitled to reimbursement for the mortgage note payments, principal and interest, she had made through the date of trial. Michael argued that he should not have to reimburse Sheila for any payments because she had enjoyed exclusive use of the home since their separation, and had intentionally caused the long delay in partitioning the property. However, if the court deemed reimbursement was appropriate, he should only have to pay half of the principal payments because Sheila benefited from the tax credits.

|3The trial court rendered judgment awarding Sheila the family home, and ordering her to pay Michael an equalizing payment of $10,000. The court reasoned that accepting either party’s argument would result in a substantial injustice against the non-prevailing party. The court stated that it relied on La.Rev.Stat. 9:2801 A(4)(c) and 9:2801 A(4)(d) to reach its decision. However, neither the community’s movable assets nor the parties’ retirement accounts was allocated or even mentioned in the judgment. Notably, in its reasons for judgment, the trial court stated “[t]he parties have one asset, the former matrimonial domicile.”

DISCUSSION:

In her first assignment of error, Sheila argues that the trial court erred in not rendering judgment awarding each party the movable community property they possessed. She relies on La.Rev. Stat. 9:2801 A(4)(c) which requires the trial court “to allocate or assign to the respective spouses all of the community assets and liabilities.” Michael asserts that because the community movables remaining in each party’s possession was negligible, the court did not err in neglecting to include the items in the judgment.

The record indicates that each party filed into the record a Detailed Descriptive List listing numerous items of movable property in his own and each other’s possession. The parties stipulated at trial as to the value of the movables in their possession as of the time of trial. Although the parties were not contesting what property the other had in his possession or asking the court to redistribute the property item by -item, La.Rev.Stat. 9:2801 A(4)(c) does mandate the trial court to allocate or assign all of the community assets and liabilities. Thus, it was error for 14the trial court to omit from the judgment the allocation of movables between the parties.

Similarly, Sheila argues that the trial court erred in not rendering judgment as to each party’s respective rights to the other party’s retirement benefits. She again cites the mandate that the trial court allocate all of the community assets and liabilities. La.Rev.Stat. 9:2801 A(4)(c). Her position is that the court had sufficient evidence before it to render a judgment and issue a QDRO using the fixed percentage method of calculation.

Michael argues that because the parties both worked for BellSouth for the same amount of time during the existence of the community, the trial court was free to assume that the retirement accounts were of relatively equal value, obviating the need to allocate those assets. He also argues that there was no evidence introduced at trial regarding the parties’ pension plans; therefore, this Court should not review the issue. We disagree for two reasons. First, there is testimonial evidence that Michael began working for BellSouth on January 3, 1972, and that Sheila did not begin working for BellSouth until November 28, 1973, a difference of almost 23 months. Even if the parties were being paid the same salary, this difference in length of service is substantial enough to warrant the trial court’s consideration of this asset. Second, there was evidence introduced sufficient for the court to make a fixed percentage calculation.

Both parties testified that they worked for BellSouth and contributed to a retirement account during the existence of the community. Both parties were still working for BellSouth at the time of trial. This is sufficient evidence to utilize the fixed percentage method of calculation set forth in Sims v. Sims, 358 So.2d 919 (La. 1978). The trial court erred in not calculating the fixed percentage each party | Bwas entitled to receive from the other’s retirement account, and ordering a QDRO for each. In her final assignment of error, Sheila argues that the trial court erred in not ordering Michael to reimburse her for his half of the mortgage payments made on the family home. Further, the trial court erred in ordering her to pay Michael an equalizing payment of $10,000. According to Sheila, she has paid $52,900 for notes on the first and second mortgages, $748 in property taxes, $4,377.50 in homeowners and flood insurance premiums, and $100 for an appraisal on the house. She acknowledges that Michael also has a reimbursement claim, and itemizes his claim as $4,000.00 for a child support overpayment which Sheila does not dispute, $382.48 for utilities paid after leaving the family home, a $150 appraisal fee incurred in connection with the earlier filed petition to partition, and $345.79 representing half of mortgage payments made after the date the community terminated. Sheila also argues that because the movables in Michael’s possession are worth more than those in her possession, the value of those items must be equalized. Therefore her net reimbursement is $53,502.58. With credit given to Michael for his half of the equity in the house, Sheila claims to be due an equalizing payment of $21,867.07.

Michael disputes that he owes Sheila any reimbursement at all because she has had the benefit of the use of the home since approximately January of 1989, and that she has delayed the partition of the community property despite his having filed a petition to partition in 1989. If, however, this Court should determine that he does owe reimbursement, then he should only have to reimburse Sheila for half of the principal payments on the mortgages. Michael disputes that he is responsible for property taxes, insurance, or interest on the loan, particularly in light of the fact that Sheila benefited from the tax credit on her income tax.

| (¡Louisiana Civil Code art. 2365 provides as follows:

If separate property of a spouse has been used to satisfy a community obligation, that spouse, upon termination of the community property regime, is entitled to reimbursement for one-half of the amount or value that the property had at the time it was used. The liability of a spouse who owes reimbursement is limited to the value of his share in the community after deduction of all community obligations.
Nevertheless, if the community obligation was incurred for the ordinary and customary expenses of the marriage, or for the support, maintenance, and education of children of either spouse in keeping with the economic condition of the community, the spouse is entitled to reimbursement from the other spouse regardless of the value of that spouse’s share of the community.

Applying this article, it is clear that the trial court erred in not considering Sheila’s reimbursement argument.

As to Michael’s argument that he should only have to reimburse Sheila for principal payments, La. Civ.Code art. 2369.3 renders his argument meritless. Louisiana Civil Code art. 2369.1 provides that general laws of co-ownership apply after a community terminates by divorce or separation, unless otherwise provided by law. The official comments (1995) to C.C. art. 2369.1 explain that C.C. arts. 2369.2 through 2369.8 are examples of instances where the law provides otherwise when dealing with former community property. C.C. art. 2369.3 mandates that “[a] spouse has a duty to preserve and to manage prudently former community property under his control, ..., in a manner consistent with the mode of use of that property immediately prior to termination of the community property regime. He is answerable for any damage caused by his fault, default, or neglect.” Clearly, this article instructs that the ex-spouse in possession of the former family home must make all payments necessary to prevent foreclosure on the property. These 17payments necessarily include principal and interest payments on mortgages, payments of insurance premiums required by the mortgage holders, and property taxes assessed against the community asset. To that end, we find that the trial court erred in not ordering Michael to reimburse Sheila for half of all mortgage payments made by her since the termination of the community property regime. Likewise, because Michael claimed that he made at least two payments subsequent .to the termination of the regime, he must receive credit upon proof that he made the payments.

Michael’s arguments that equity must prevail and that the trial court’s judgment should be upheld because it followed the mandates of La.Rev.Stat. 9:2801 lack merit. The trial court’s reliance on La.Rev. Stat. 9:2801 was not incorrect. However, that statute only provides the general principles for partitioning community property. The trial court erred in not applying the other specific provisions of law pertaining to division of community property.

This Court is empowered to render judgment without remand if there is a sufficient record upon which to do so. In this case, the record is not clear in the following instances. First, the first mortgage records supplied by Sheila appear to indicate that the first mortgage lender es-crowed certain funds from each payment. This Court cannot ascertain the purpose of the escrow account. Accordingly, we must remand this matter for the trial court to take additional evidence, specifically to determine whether Sheila made separate payments for property taxes and insurance or whether those amounts were escrowed. If monies were escrowed to cover payment of taxes and/or insurance, then Sheila is not entitled to recover separately for those amounts. If, however, taxes or insurance or neither were escrowed and Sheila can prove that she made separate payments for those debts, |sthen she is entitled to reimbursement for half of those payments. The second instance in which the record is lacking is the amount of equity in the house as of the date of trial, March 18, 2002. The documents provided by Sheila only indicate the principal balance as of January 2001. Clearly, if Sheila is to benefit from payments made through the date of trial, then Michael must also benefit from the increased equity in the home.

Accordingly, this case is remanded to allow the trial court to take additional evidence on the amount of equity in the home as of the date of trial, on the escrow issue detailed herein, and for proof of payments made by the parties for the January 1989 mortgage payments. Further, the case is remanded for the trial court to make a fixed percentage calculation on each party’s retirement account, and to order a QDRO for each. Lastly, the case is remanded for the trial court to render an amended judgment consistent with this opinion, and to include the allocation of the movables in each party’s possession on the date of trial.

REMANDED WITH INSTRUCTIONS.

      . Ms. Cantrell’s first name is spelled differently throughout the record. For purposes of this opinion, we will use the name "Sheila” as it appears on the original petition.

      . The trial court record prior to the filing of this petition to partition on 1/5/01 was not included in the record on appeal.


author: MOON LANDRIEU, Judge Pro Tempore.

text:
    Patricia SNEED v. RTA/TMSEL.
    No. 2003-CA-1532.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 25, 2004.

      Robert L. Manard, III, Robert L. Ma-nard, A PLC, New Orleans, LA, for Plaintiff/Appellee.
    Philip J. Borne, Leslie E. Hodge, Chris-tovich & Kearney, L.L.P., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge LEON A. CANNIZZARO JR., and MOON LANDRIEU, Judge Pro Tempore).
   MOON LANDRIEU, Judge Pro Tempore.

The defendant, Transit Management of Southeast Louisiana (“Transit Management”), appeals the January 19, 2002 judgment of the Office of Worker’s Compensation (“OWC”) that held that Transit Management arbitrarily refused to authorize surgery for Patricia Sneed, the claimant/employee. The workers’ compensation court awarded Ms. Sneed penalties and attorney’s fees without awarding Ms. Sneed reimbursement of the medical expenses incurred with her second surgery. Ms. Sneed answered the appeal. We affirm in part, reverse in part, and amend.

Facts

On May 2, 1999, employee Patricia Sneed, a streetcar operator, sustained injuries when a streetcar was involved in a collision with a garbage truck on Broadway and St. Charles Avenue. After receiving conservative treatment with a family practice physician, Ms. Sneed was treated by Dr. Kenneth Vogel, a neurosurgeon. Dr. Vogel performed several tests, including a CT scan, an MRI, and a disco-gram. On October 12, 1999, Dr. Vogel recommended a microsurgical discectomy and a medial branch neurotomy.

Ms. Sneed was seen by Transit Management’s independent medical examiner, Dr. John Schumacher, and by Dr. Carlos R. Gorbitz for the OWC. Dr. 19,Schumacher and Dr. Gorbitz recommended further therapy rather than surgery. Transit Management denied Ms. Sneed’s request for surgery by Dr. Vogel.

Dr. Vogel stated in his deposition that because the neurotomy surgical procedure was denied, he then recommended a procedure, Intradiscal Electrathermal Therapy (“IDET”), as a compromise. Transit Management denied ■ authority for that procedure as well. Ms. Sneed continued to complain of pain, and in February 2000, Dr. Vogel recommended an epidural lumbar block to give her temporary relief. The procedure did not resolve Ms. Sneed’s problems. On April 10, 2000, Ms. Sneed was admitted into the hospital for the IDET surgery. The procedure was performed but did not successfully relieve all of Ms. Sneed’s pain, and on March 6, 2001, Dr. Vogel again recommended the cervical neurotomy.

Transit Management scheduled a second appointment for Ms. Sneed to see Dr. Schumacher on April 18, 2001. Ms. Sneed’s attorney canceled the appointment with Dr. Schumacher. On April 25, 2001, without obtaining approval from Transit Management, Ms. Sneed underwent the neurotomy. Transit Management stated that it did not discover that the neurotomy had been performed until Dr. Vogel’s deposition was taken on May 1, 2001.

Relevant Procedural History

On February 2, 2001, a consent judgment was presented to the OWC judge. In this judgment, the parties agreed that Transit Management would pay certain past-due medical bills within forty-five days, according to a fee schedule. On April 11, 2001, Ms. Sneed filed a motion to enforce the judgment, claiming that Transit Management had not paid all medical bills incurred prior to the neurotomy pursuant to the settlement agreement. At trial on February 6, 2002, Ms. Sneed and 13Transit Management’s adjuster testified. The deposition of Dr. Vogel and the medical records were included in the record.

The OWG judgment dated July 19, 2002, held that: (1) Transit Management paid all outstanding medical bills incurred prior to the April 25, 2001 neurotomy, and was therefore not liable for penalties and/or attorney fees for medical bills incurred prior to that surgery; (2) Transit Management was aware of Dr. Vogel’s recommendations for a neurotomy, and failed or refused to authorize it for no given reason; and (3) because Transit Management was arbitrary and capricious in both refusing to authorize and to pay for the neurotomy, Ms. Sneed was entitled to penalties in the amount of $2,000 or 12% of the cost of the neurotomy, whichever is greater; as well as an award for attorney’s fee in the amount of $6,000. The judgment was silent as to reimbursement of the medical expenses incurred in connection with the neurotomy.

Both parties filed a motion for new trial, but before the motions could be heard, the original OWC judge stepped down from her position to run for public office. Her successor denied both new trial motions.

Transit Management filed a suspensive appeal, and Ms. Sneed filed an answer, requesting an award of medicals bills connected with the neurotomy, and an increase in attorney’s fees.

Issues

Transit Management contends that the trial court erred in: (1) finding that Transit Management unreasonably refused to authorize the neurotomy; and (2) failing to find that Ms. Sneed violated La. R.S. 23:1121 by not attending the scheduled appointment with Dr. Schumacher.

|4Ms. Sneed answered the appeal, arguing that the trial court erred in failing to find that: (1) Transit Management was liable for $24,807 in medical bills for the neurotomy, despite finding Transit Management arbitrary and capricious in not paying for same; (2) Transit Management was liable for $4,340 in medical bills associated with treatment prior to the neuroto-my. Additionally, Ms. Sneed seeks additional attorney’s fees for this appeal.

Standard of Review:

Generally, factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556. However, under certain circumstances, when there is a contradictory judgment, the appellate court performs a de novo review.

In Evans v. Lungrin, 97-0541, pp. 6-7 (La.2/6/98), 708 So.2d 731, 735, the Louisiana Supreme Court stated:

It is well-settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). However, where one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence.... A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial .... Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights.... When such a prejudicial error of law skews the trial court’s finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo.

See also Stephens v. Stephens, 02-0402 (La.App.1 Cir. 6/21/02), 822 So.2d 770.

In Kerrigan v. Imperial Fire and Cas. Ins. Co., 99-603, 99-604 (La.App. 3 Cir. 11/3/99), 748 So.2d 67, the Third Circuit found that the trial court’s judgment was interdicted by error because the trial court erred legally by not apportioning fault. The appellate court performed an independent de novo review of the complete record in apportioning fault. The appellate court also exercised its own discretion in fixing the damage award.

In Boudreaux v. Farmer, 604 So.2d 641, 653 (La.App. 1 Cir.1992), the First Circuit found that a de novo apportionment of fault was necessary on appeal in an action involving an automobile accident. However, the appellate court noted that the trial court’s erroneous failure to assign any percentage of fault to the passing driver did not interdict the trial court’s findings of fact as to whether the other driver and the Department of Transportation and Development (“DOTD”) were at fault. Therefore, the factual findings as to those parties’ fault were reviewed for manifest error. The First Circuit also stated that:

[I]f the validity of a jury verdict or trial court judgment on quantum is interdicted by a factual or legal error, the abuse of discretion standard will not be followed, and the appellate court will not remand but will undertake an independent evaluation of the record and exercise its own discretion to fix a (de novo) quantum award, if the record is otherwise complete. Suhor v. Gusse, 388 So.2d 755 (La.1980).
604 So.2d at 653.

The First Circuit referred to the Suhor case, in which the Louisiana Supreme Court found that the trial court erred in its jury instruction which influenced the jury verdict. In Suhor, the Supreme Court noted that:

An appellate court, when it believes that errors committed at trial influenced the jury verdict, must | B-undertake an independent [de novo ] evaluation of the facts and adjudicate the controversy before it. Temple v. Liberty Mutual Ins. Co., 330 So.2d 891 (La.1976)....
388 So.2d at 756.

The Supreme Court set aside the jury verdict and remanded the case to the appellate court for an independent (de novo) evaluation of the damages.

In Charles v. Cecil Chatman Plumbing and Heating Co., 96-299 (La.App. 3 Cir. 10/23/96), 686 So.2d 43, the Third Circuit held that the jury’s failure to award general damages, after it awarded the motorist medical expenses, was an error of law, reviewed de novo. The appellate court was not constrained to the lowest amount that the trial court should have awarded.

In the present case, the workers’ compensation judgment assessed penalty fees in the amount of $2,000 or 12% of the cost of the neurotomy, whichever is greater, as well as an award for $6,000 in attorney’s fees without awarding medical expenses incurred for the neurotomy surgery itself. Because the trial court found that the employer was arbitrary and capricious but did not award an amount for the expenses for the neurotomy procedure, the judgment is interdicted by error, and the record is subject to an independent de novo appellate review of the record.

Claimant’s Request for $4,310 in Medical Expenses Prior to Neurotomy

Ms. Sneed claims that Transit Management failed to pay $4,340 medical expenses incurred prior to the neurotomy. The parties had a verbal agreement on February 14, 2001, that Transit Management would pay the disputed bills in connection with the first IDET surgery within 45 days and pursuant to the Louisiana Fee Schedule. The parties agreed that Ms. Sneed would not claim penalties and attorney’s fees with respect to the medical expenses incurred before the neurotomy was performed. At the trial on February 6, 2002, Transit |7Management provided D-4, its opposition to the claimant’s motion to enforce the consent judgment, which gave details of Transit Management’s efforts to obtain the information necessary to audit and pay the bills.

La. R.S. 23:1201(2) provides for payment of penalties for the late payment of medical bills. La. R.S. 23:1201 F(2) states:

(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.

Transit Management provided evidence that it made efforts to timely pay the bills but was hampered by the failure of the various health care providers to timely provide the information and documentation necessary to pay the bills pursuant to the fee schedule. We conclude that the defendant paid all outstanding medical bills in a timely manner.

Claimant’s Failure to Attend Scheduled Appointment

Transit Management complains that the OWC judge erred in failing to find that Ms. Sneed violated La R.S. 23:1121 by not attending the scheduled appointment with Dr. Schumacher.

La. R.S. 23:1121 provides in pertinent part:

§ 1121. Examination of injured employee
A. An injured employee shall submit himself to an examination by a duly qualified medical practitioner provided and paid for by the employer, as soon after the accident as demanded, and from time to time thereafter as often as may be reasonably necessary and at reasonable hours and places, during the pendency of his claim for compensation or during the receipt by him of payments under this Chapter. The employer or his workers’ compensation carrier shall not require the employee to be examined by more than one duly qualified medical practitioner in any one field or specialty unless prior consent has been obtained from the employee. [Emphasis added.]
|SB. The employee shall have the right to select one treating physician in any field or specialty. The employee shall have a right to the type of summary proceeding provided for in R.S. 23:1124(B), when denied his right to an initial physician of choice. After his initial choice the employee shall obtain pri- or consent from the employer or his workers’ compensation carrier for a change of treating physician within that same field or specialty. The employee, however, is not required to obtain approval for change to a treating physician in another field or specialty.
C. If the employer or insurer has not consented to the employee’s request to select a treating physician or change physicians when such consent is required by this Section, and it is determined by a court having jurisdiction that the withholding of such consent was arbitrary and capricious, or without probable cause, the employer or the insurer shall be liable to the employee for reasonable attorney fees related to this dispute and for any medical expense so incurred by him for an aggravation of the employee’s condition resulting from the withholding of such physician’s services.

In the present case, the record reveals that on April 6, 2001, Ms. Sneed’s attorney canceled her April 18, 2001 second appointment with Dr. Schumacher. Debbie Hebert, the adjuster for Transit Management, testified that she received a letter from Ms. Sneed’s attorney explaining why the appointment was canceled. Ms. Sneed’s attorney related that after speaking with Dr. Schumacher’s assistant, it was determined that Dr. Schumacher would not approve the neurotomy procedure, regardless of the examination, and it would therefore be useless to have Ms. Sneed reexamined.

Medical Expenses for Neurotomy La. R.S. 23:114-2

Transit Management maintains that because Ms. Sneed did not get prior approval for the neurotomy, the $750 statutory cap pursuant to La. R.S. 23:1142 should be applied, and that the trial court’s judgment properly reflected that limit of liability.

| ¡¡La. R.S. 23:1142 B provides:

B. Non-emergency care. (1) Except as provided herein, each health care provider may not incur more than a total of seven hundred fifty dollars in non-emergency diagnostic testing or treatment without the mutual consent of the payor and the employee as provided by regulation. Except as provided herein, that portion of the fees for non-emergency services of each health care provider in excess of seven hundred fifty dollars shall not be an enforceable obligation against the employee or the employer or the employer’s workers’ compensation insurer unless the employee and the payor have agreed upon the diagnostic testing or treatment by the health care provider.

Generally, an employee must receive prior approval from his employer before he seeks non-emergency medical attention for a work-related accident or injury. La. R.S. 23:1142 B; INA v. Hayes, 93-1648 (La.App. 3 Cir. 8/31/94), 643 So.2d 190, 195. This statute allows a health care provider to incur up to $750 in non-emergency diagnostic testing and treatment without the mutual consent of the payor for the payment of the claimant’s medical expenses resulting from a work-related injury-

An exception to La. R.S. 23:1142 is found in section E. It states:

In the event that the payor has denied that the employee’s injury is compensa-ble under this Chapter, then no approval from the payor is required prior to the provision of any diagnostic testing or treatment for that injury.

In interpreting La. R.S. 23:1142 E, it has been held that an insurance carrier’s refusal to authorize medical treatment can constitute a denial of compensability as provided in section E and, therefore, no approval from the payor may be required. Gros v. Gaudin, 2000-1015 (La.App. 5 Cir. 10/31/00), 773 So.2d 172; Barron v. First Lake Properties, Inc., 93-902 (La.App. 5 Cir. 3/29/94), 636 So.2d 970.

|inIn the present case, the parties do not dispute that Ms. Sneed’s injury was work related or that her disability resulted from the work-related injury. Transit Management, however, questioned the need for the neurotomy based on the opinion of Dr. Schumacher. Transit Management maintains that the surgical procedure is controversial and performed by only a small number of surgeons. Transit Management argues that: “Dr. Vogel was unable to name another neurosurgeon who performs neurotomies.” Transit Management asserts that Dr. Schumacher did not find a herniated disc.

The record shows that Dr. Vogel first saw Ms. Sneed on June 29, 1999. Dr. Vogel’s letter of June 29, 1999 listed the following under the heading, “IMPRESSION”:

1. Acute cervical strain versus herniated cervical disc.
2. Acute lumbosacral strain versus herniated lumbar disc.

Dr. Vogel’s letter of August 30, 1999 reported the following under “IMPRESSION”:

1. Herniated lumbar disc with lumbar instability.
2. Chronic cervical strain versus cervical instability.

In his letter dated October 12, 1999, under “IMPRESSION,” Dr. Vogel provided:

1. Herniated lumbar disc.
2. Post-operative bilateral knee surgery status.”

Thereafter, in his report dated December 6, 1999, Dr. Schumacher noted in her family history that Ms. Sneed was widowed and had five children. Dr. Schu-macher stated that:. “The cervical study is normal. There is no evidence of ruptured or herniated disc.” This report was dated after Dr. Vogel found a|nherniated disc on October 12, 1999, when he recommended the patient’s admission for a microsurgical disc excision.

In his letter of January 7, 2000, Dr. Vogel concluded:

... I have reviewed the report of Dr. Schumacher. I agree with Dr. Schu-macher that there .is no extravasation of dye into the spinal canal. However, I have viewed the diseogram/CAT scan of 9/23/99 and concur with the radiologist that there is contrast extending into the left posterolateral epidural space. This is consistent with the Modic Ha herniar tion at this level. It continues to be my impression that this patient is a surgical candidate for microsurgical discectomy at L3^4 on the left.

In his deposition, Dr. Vogel stated that Ms. Sneed suffered a herniated disc at one level and an annular tear at another level as a result of the May 2, 1999 accident. He found that Ms. Sneed had chronic cervical strain or a segmental cervical instability. He recommended the IDET surgery and neurotomy.

On February 22, 2000, Ms. Sneed was given an epidural block for pain before the IDET surgery was approved. The fact that Ms. Sneed underwent the epidural block procedure, indicates that the claimant was experiencing considerable pain.

Dr. Vogel treated Ms. Sneed conservatively for an extended period of time before performing the IDET procedure on April 10, 2000. In the IDET or intradiscal electrothermal annuloplasty surgery procedure, an electrode was threaded into the disc’s annulus and the disc was heated to 90 degrees for about 15 minutes to repair the disc’s annular tear at the L5-S1 level. Dr. Vogel explained that nerve endings that had grown into the disc caused pain. Dr. Vogel noted that the procedure could be performed by any neurosurgeon or orthopedist. He went to Stanford for training in a weekend course in 1997.

|12Pr. Vogel reviewed the neurotomy procedure that was done on April 25, 2001. It included heating the nerves in the L2 through 5 levels on both sides. The herniation was at the L3-4 level. Dr. Vogel cauterized the nerves to resolve the pain. He stated that the neurotomy procedure destroys the nerve endings in the facet region 90 percent of the time.

Dr. Vogel’s curriculum vitae (“CV”) showed that he had been a neurosurgeon for 30 years. Dr. Vogel provided a “Spine” medical journal, in which appeared an article entitled “Management of Chronic Discogenic Low Back Pain with a Thermal Intradisc Catheter.” Dr. Vogel noted that this article stated that the IDET procedure is a satisfactory method for treating annular tears. Dr. Vogel provided another “Spine” article by Dr. Maarten Van Kleef, entitled “Randomized Trial of Ra-diofrequency Lumbar Facet Denervation for Chronic Low Back Pain.” Dr. Vogel testified that the article stated that the neurotomy procedure is a satisfactory method for treating segmental lumbar instability.

According to Dr. Vogel’s testimony, he strongly recommended the procedures, provided Transit Management with all relevant medical reports, and was denied authority to perform the neurotomy at least three times. Dr. Vogel verified that the medical bills were directly related to the May 2, 1999 accident and were reasonable.

The parties may obtain a third doctor’s opinion where there is disagreement under La. R.S. 23:1123. La. R.S. 23:1123 provides:

§ 1123. Disputes as to physical condition of employee; examination under supervision of the director
If any dispute arises as to the condition of the employee, the director, upon application of any party, shall order an examination of the employee to be made by a medical practitioner selected and appointed by the director. The medical examiner shall report his | ^conclusions from the examination to the director and to the parties and such report shall be prima facie evidence of the facts therein stated in any subsequent proceedings under this Chapter.

In the present case, Ms. Sneed submitted to an independent medical examination (IME) by Dr. Carlos R. Gorbitz for the OWC, as well as examinations by Dr. Vo-gel and Dr. Schumacher.

In his report dated February 8, 2000, Dr. Gorbitz stated:

In my opinion this patient has a normal neurological examination. There is only radiological evidence of mild degenerative disc disease at the L3-4 disc, which is anteriorly located with a tear. This has absolutely no clinical significance. There is no encroachment upon the spinal canal and/or nerve roots at the cords. Therefore there is absolutely no need for any surgical intervention on this patient. I will strongly suggest that this patient be engaged in a functional capacity evaluation and asked to return to work. The degree of the patient’s supposed disability and the amount of significant pain, is not compatible with the radiological findings and/or with the clinical evaluation.

In his letter dated March 22, 2000, Dr. Gorbitz related that he was not familiar with the intradiscal electrothermal therapy that Dr. Vogel recommended. Dr. Gorbitz found that the procedure “has no effect on the stability of the spine and no effect on the rest of the pathology either mechanical and/or functional. Therefore, the success rate on this procedure to people such as Ms. Sneed ... is quite questionable.” Dr. Gorbitz noted: “If Dr. Vogel insists on carrying out this procedure I will strongly suggest that a different surgeon evaluate the patient. I would strongly recommend she see Dr. Mitchel Harris, a spinal orthopedic surgeon, and/or Dr. Carlos Pisarello, or Dr. Edward Connolly from Ochsner Foundation.”

| uThe accident occurred on May 2, 1999. Ms. Sneed had pain severe enough to undergo an epidural block procedure on February 22, 2000. Almost two years after the accident, Dr. Vogel performed Ms. Sneed’s neurotomy on April 25, 2001. Dr. Vogel treated Ms. Sneed conservatively for quite some time. It does not appear that Dr. Vogel was rushing to have the patient undergo unnecessary surgery, but he intended to attempt to alleviate her back pain.

In both Gros, supra, and Barron, supra, the compensability of the claimant’s work related injury was generally admitted but authorization for a specific medical procedure was denied. The Fifth Circuit held that the refusal to authorize medical treatment constituted a denial of compensability under R.S. 23:1142 E, thereby providing an exception to Section B which otherwise requires authorization' for medical treatment by the employer or the compensation insurer.

In the present case, the second appointment with Dr. Schumacher was necessary because the first appointment was over a year before, and Ms. Sneed’s condition had changed because she had undergone the first IDET procedure since the time that she initially saw Dr. Schumacher. Regardless of whether or not Dr. Schumacher would have changed his opinion, he should have had the opportunity to examine her under La. R.S. 23:1142 B.

On the other hand, neither Transit Management nor Ms. Sneed requested a review of another independent physician as recommended by Dr. Gorbitz. Ms. Sneed testified that she did not know about the second appointment with Dr. Schumacher. Ms. Sneed’s attorney did not cancel Ms. Sneed’s second appointment with Dr. Schumacher, without explaining his reasoning and giving the defendants notice.

|1sThe record provides a reasonable factual basis to support the finding that the neurotomy surgery was medically necessary, and Ms. Sneed is entitled to the expenses incurred. The record contains copies of the medical expenses as follows:

Memorial Medical Center
4/25/01 $ 16,562.00
Dr. K.E. Vogel
5/01/01 (For 4/25/01) 6,995.00
Anesthesia Consultants Of the South
5/31/01 (For 4/25/01) 900.00
Dr. Nicholas Angelica
Pre-Op 4/23/01 350.00
Total: $ 24,807.00

The claimant, Ms. Patricia Sneed, is awarded the total of $24,807 for the medical expenses incurred for the neurotomy surgical procedure.

Sanctions and Attorney’s Fees

Under the totality of circumstances, we cannot find that the employer was arbitrary and capricious or that the claimant was entitled to sanctions and attorney’s fees for the trial court proceedings where Mrs. Sneed did not keep the second appointment with Dr. Schumacher in violation of La. R.S. 23:1121.

The claimant, Ms. Sneed, answered the appeal and requests additional attorney’s fees for the appeal under La. R.S. 23:632. Therefore, her request can be reviewed. See La. C.C.P. art. 2133; Saacks v. Mohawk Carpet Corp., 2003-0386 (La.App. 4 Cir. 8/20/03), 855 So.2d 359, writ denied, 2003-2632 (La.12/12/03), 860 So.2d 1158. However, Ms. Sneed is not entitled to attorney’s fees for the trial court proceedings, and we cannot find that Ms. Sneed is entitled to attorney’s fees on appeal.

| ^Accordingly, we affirm the workers’ compensation judgment in favor of Transit Management with respect to the medical bills incurred before the neurotomy. The awards of penalties and attorney’s fees with respect to the neurotomy surgery are reversed. The claimant’s request for attorney’s fees for the appeal is denied. The judgment is amended to award Ms. Sneed medical expenses in connection with the neurotomy surgical procedure in the amount of $24,897.00.

AFFIRMED IN PART; REVERSED IN PART; AND AMENDED.