author: PICKETT, J. L COOKS, J.,

text:
    Judy BELLARD v. Johnny R. BIDDLE, Jr., M.D.
    No. 02-241.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 30, 2002.

      Ray Orrill, Jr., Leslie Cordell, Orrill, Shearman and Crodell, L.L.C., New Orleans, LA, for Plaintiff/Appellant Judy Bel-lard.
    Gregory Bergstedt, The Bergstedt Law Firm, Lake Charles, LA, for Defendant/Appellee Johnny R. Biddle, Jr., M.D.
    Court composed of HENRY L. YELVERTON, SYLVIA R. COOKS, JOHN D. SAUNDERS, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   PICKETT, J.

FACTS

On September 18, 1989, Judy Bellard had a hysterectomy. The surgery was performed by the defendant, Dr. Biddle. On September 30, 1989, Bellard was admitted to the hospital because her wound from the surgery had opened (abdominal dehiscence) and her internal organs were protruding out of the wound (evisceration). Dr. John Kusalavage, who was on call, performed the surgery to correct this problem. To close the wound, Dr. Kusala-vage used three large retention sutures, which are enclosed by rubber casing, because of Bellard’s obesity. Bellard remained in the hospital until she was discharged by Dr. Biddle on October 7, 1989. On October 19, 1989, Dr. Biddle removed two of the three retention sutures.

Dr. Biddle continued to treat Bellard for various problems from October 1989 until December 30, 1992. On some occasions, she complained of itching or pain at the cite of the wound. On September 7, 1990, she complained of incisional itching. On January 9, 1992, Bellard was hospitalized for leukocytosis, fever, pneumonitis, hypertension, and chronic obstructive pulmonary disease. She was discharged on January 14, but returned to Lake Charles Memorial Hospital on January 15, 1992, and Dr. Biddle treated her for cellulitis of the abdominal wound incision. Dr. Biddle saw her again on January 23, 1992. Bellard complained of a boil and bleeding at the site of her wound. Dr. Biddle told her to continue the antibiotics he had prescribed, clean the site twice a day, and follow up with Neosporin and bandages. On April 16, 1992, Dr. Biddle noted incisional drainage and applied silver nitrate. On July 21, 1992, a small wound dehiscence was noted, and Dr. Biddle prescribed antibiotics. On November 11, 1992, Bellard presented to Dr. Biddle with complaints of incisional drainage. Dr. Biddle treated Bellard for cellulitis.

Lin December 1992, Bellard was hospitalized for antibiotic therapy to treat the incisional infection. Following her discharge, her last office visit with Dr. Biddle was on December 30, 1992. Dr. Biddle prescribed treatment and told her to follow up with him in six weeks. She never saw Dr. Biddle again.

On March 1, 1995, Dr. Ronald Kober performed exploratory surgery to determine the source of Bellard’s continued infections at the site of the wound. He discovered the retention suture that had not been removed.

Procedural History

Bellard instituted a claim against Dr. Biddle for malpractice on January 26, 1996. A medical review panel found that Dr. Biddle did not breach the standard of care. Bellard filed suit in district court. Dr. Biddle filed an exception of prescription. The trial court granted the exception and dismissed the case with prejudice, finding that the suit was instituted more than three years from the date of the malpractice. Bellard filed an appeal in this court. In Bellard v. Biddle, 98-1502, p. 4-5 (La.App. 3 Cir. 3/17/99); 734 So.2d 733, 734, a panel of this court reversed the district court, stating:

In the instant case, Ms. Bellard argues that the tortious conduct, i.e., the very existence of the suture “migrating” and causing progressive infections, gives rise to the application of the legal doctrine of continuing torts.
We believe that the facts, as alleged herein for purposes of the exception of prescription, constitute a continuing tort as described by the Louisiana Supreme Court in South Central Bell [v. Texaco, Inc., 418 So.2d 531 (La.1982)]. The tor-tious conduct complained of is not only an affirmative act, but also a continuing omission on the part of Dr. Biddle. Assuming Ms. Bellard’s incisional problems were caused by the piece of rubber left in her abdomen, the rubber itself caused harm progressively, just as did the leaking gas tanks in South Central Bell and the build up of trash in Estate of Patout [v. City of New Iberia, 97-1097 (La.App. 3 Cir. 3/6/98), 708 So.2d 526; writ granted, 98-0961 (La.7/2/98), 721 So.2d 897]. Thus, we find the existence of the rubber and the harm it allegedly caused to be continuing up to the time it was removed and damage abated in March of 1995. Prescription did not pbegin to run until that time, and Ms. Bellard’s claim filed in January of 1996 was timely-

Dr. Biddle did not seek writs from this ruling and the case was remanded to the district court. On November 14, 2001, Dr. Biddle re-urged his exception of prescription, citing the supreme court’s decision in In re Medical Review Panel for the Claim of Moses, 00-2643 (La.5/25/01); 781 So.2d 567. In that case, the supreme court specifically overruled the reasoning of this court’s decision in this case. The trial court denied the exception of prescription, finding that the previous judgment of this court was binding and could not be reheard because of the doctrine of res judi-cata. The denial of the exception was certified as a final judgment, and this appeal followed.

ASSIGNMENTS OF ERROR

The appellant, Dr. Biddle, asserts three assignments of error:

1. The trial court erred in finding that this court’s previous ruling denying the appellant’s first peremptory exception of prescription was a final judgment pursuant to La.Code Civ.P. art. 1841 which should be given preclusive effect under the doctrine of res judicata, La.R.S. 13:4231.
2. The trial court erred in ignoring the clear dictates of the supreme court which found this court’s ruling on the appellant’s first peremptory exception of prescription in error and specifically overruled this court’s previous ruling adopting a continuing trespass theory.
3. The trial court erred in not granting appellant’s peremptory exception of prescription since it is judicially established that prescription began to run on December 30, 1992, and that the plaintiffs claim of medical malpractice was not filed within three years of that date.

\ ¡DISCUSSION

The trial court determined that the judgment granting the exception of prescription and dismissing the case was a final judgment, and that judgment remained final even though this court reversed the judgment and reinstated the cause of action, stating as follows:

The defendants [sic] in this situation allowed the decision of the Court of Appeal to remain in effect and returned back to the litigation without taking it up for a higher court review, thus, in this Court’s opinion allowing that decision to become final, which was based on the earlier determination of the trial court, which was the granting which would have to be treated as a final decision since it was conclusive under 13:4231. For these reasons, and, additionally, that the law of the case at the time and that the standard was met with regard to prescription, the Court will deny the exception of the defendants on the issue of prescription and will sign a judgment to that effect when submitted.

A judgment granting an exception of prescription decides the merits of a case and is therefore a final judgment. La. Code Civ.P. art. 1841; In re Howard, 541 So.2d 195 (La.1989); Phillips v. Patterson Ins. Co., 98-1849 (La.App. 3 Cir. 5/19/99); 734 So.2d 1285. Conversely, a judgment denying a peremptory exception, such as prescription, is an interlocutory judgment. La.Code Civ.P. arts. 927 and 1841; Duplechin v. Toce, 434 So.2d 648 (La.App. 3 Cir.1983).

The issue before this court is whether this court’s reversal of the granting of an exception of prescription is a final judgment to the extent that it precludes Dr. Biddle from re-urging the exception of prescription again in the trial court under the doctrine of res judicata.

La.Code Civ.P. art. 1841 states:

A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final.
|kA judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment.
A judgment that determines the merits in whole or in part is a final judgment.

The previous judgment of this court was an interlocutory judgment, as it did not determine the merits of the case. In fact, this court’s previous judgment, determining the cause of action had not prescribed, ordered the merits of this case to be heard. It is clearly interlocutory in nature.

In order for the doctrine of res judicata to be applicable, there must be a final judgment. La.R.S. 13:4231 states, in pertinent part:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

Because the previous judgment of this court is interlocutory in nature, La.R.S. 13:4231 simply does not apply.

The appellee argues that even if res judicata does not act to bar re-litigation of the issue of prescription, the doctrine of “law of the case” does apply. This court discussed the law of the case doctrine fully in Cree Oil Co. v. Home Ins. Co., 94-1219, p. 17 (La.App. 3 Cir. 3/8/95); 653 So.2d 620, 629, writ denied, 95-1554 (La.9/29/95); 660 So.2d 875 (quoting Dodson v. Community Blood Center of Louisiana, Inc., 633 So.2d 252, 255 (La.App. 1 Cir.1993), writs denied, 93-3158 (La.3/18/94); 634 So.2d 850 and 93-3174 (La.3/18/94); 634 So.2d 851):

The “law of the case” doctrine applies to all prior rulings or decisions of an appellate court or the supreme court in the same case, not merely those arising from the full appeal process. See Brumfield v. Dyson, 418 So.2d 21 (La.App. 1st Cir.), writ denied, 422 So.2d 162 (La.1982). This policy applies to parties who were parties to the case when the former decision was rendered and who thus had their day in court. The reasons for the “law of the case” doctrine is [sic] to avoid relitigation of the same issue; to promote consistency of result in the same litigation; and to promote efficiency and fairness to both parties by affording a single opportunity for the argument and decision of the matter at issue. Day v. Campbell-Grosjean Roofing and Sheet Metal Corp., 260 La. 325, 256 So.2d 105 (1971). This doctrine is not an inflexible law, thus appellate courts are not absolutely bound thereby and may exercise discretion in application of the doctrine. It should not be applied where it would accomplish an obvious injustice or where the former appellate decision was manifestly erroneous. Brumfield v. Dyson, 418 So.2d at 22.

In the matter before us, this issue has been previously argued and a decision rendered. However, as the supreme court’s subsequent ruling in Moses specifically addresses this issue, we should re-examine the prescription issue in light of the supreme court’s pronouncement in that case. In Moses, the supreme court stated:

The reasoning in Bellard is erroneous in three respects. First, it fails to apply the three-year overall limitation on the discovery rule to the single act of malpractice. Second, it applies a theory of continued omissions contrary to our pri- or jurisprudence limiting that theory to instances of fraudulent concealment. Finally, it departs from our continuing tort jurisprudence requiring for a continuing tort not only continuing damages, but also continuing tortious conduct. We thus overrule Bellard.

The statute governing prescription in medical malpractice cases is La.R.S. 9:5628, which provides:

A. No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1299.41(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission or neglect.
|7B. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.

As discussed in Moses, the statute contemplates a one-year prescription period for medical malpractice actions. This period runs from the date of the alleged malpractice if damages are immediately apparent. In cases where damages are not immediately apparent, the one-year prescription period begins on the date of the discovery of the alleged malpractice. However, in cases where the discovery exception is applied, there is a three-year peremption period that begins to run on the date of the alleged malpractice.

In Moses, the patient, pregnant at the time, had a device affixed to her cervix on September 3,”1991, to prevent premature delivery. The device was removed on December 30,1991, but the some of the metal stitches that had been used to hold the device in place were not removed. The remaining stitches were discovered on July 16, 1996, and removed on September 5, 1996. The patient began proceedings against the hospital on July 2, 1997. The hospital filed a peremptory exception of prescription, which the trial court sustained. The patient appealed, and the First Circuit, relying on this court’s decision in Bellard, reversed the trial court and found that prescription did not begin to run until September 5, 1996, when the metal stitches were removed, and thus the suit was instituted timely on July 2, 1997. The First Circuit reasoned that the continued presence of the sutures constituted a continuing tort.

The supreme court reversed the First Circuit. They found that the three-year limit in La.R.S. 9:5628 could not be enlarged to encompass either a continuing omission (termination rule) or a continuing trespass theory. About the termination rule, the supreme court stated:

| sUnder the termination rule, when the health care provider continues to treat the patient after making an error and failing to discover it, “the health care provider is deemed negligent both at the time of the malpractice and at all subsequent examinations; thus, the limitation period does not commence until the termination of the patient’s relationship with the health care provider.” Clay B. Tousey, Jr., Comment, An Analysis of State Legislative Responses to the Medical Malpractice Crisis, 1975 Duke 1417, 1431.
* * *
The termination rule theorizes that the continuing injury is a tort that continues beyond the time of the occurrence until it is either discovered or the relationship terminates, whichever occurs earlier. Under the termination rule, a single negligent act is conceptualized as giving rise to a continuing tort by “viewing] the injury as continuing and perceiv[ing] the injury as not accruing [and prescription thus not commencing to run] until a damaged party discovers the wrong.” Susan S. Septimus, The Concept of Continuous Tort as Applied to Medical Malpractice: Sleeping Beauty for Plaintiff, Slumbering Beast for Defendant, 22 Tort & Ins. L.J. 71, 89 (1986). Given its focus on the principle that the injury continues beyond occurrence until when the harm is discovered or when the relationship of the parties is terminated, the termination rule is, in essence, a “particularized application of the discovery rule. The rule presumes, for policy reasons, that a patient has not discovered an injury during the time medical treatment continues.” Stanbury v. Bacardi, 953 S.W.2d 671, 676 (Tenn.1997)(concluding rule outlived necessity given comprehensive medical malpractice statute of limitation).
By statute, however, the Legislatures in many jurisdictions, including Louisiana, have placed overall limitations for asserting a claim based on such discovery rule. “These statutes of repose run from the specific date of occurrence and serve to limit the concept of continuing injury.” [citation omitted]. Such repose rules serve to set a fixed time period, three years in Louisiana, after which a plaintiffs right to be compensated for such not immediately knowable injuries is cut off. By their nature, statutes of repose “reimpose on some plaintiffs the hardship of having a claim extinguished before it is discovered, or perhaps before it even exists.” W. Page Keeton, et al., Prosser and Keeton on Torts § 30 at 168 (5th ed.1984). This is especially so with foreign objects. While some state legislatures have carved out an express discovery rule exception for foreign objects, the Louisiana Legislature has not. While harsh, Section 5628 precludes our recognizing the termination rule type continuing tort as a basis for enlarging the three-year cutoff on the discovery rule based on the theory of a continuing injury to plaintiff.

In the instant case, the date of the original malpractice, when Dr. Biddle failed to remove one of the retention sutures, was October 19, 1989. The date of discovery |9of the remaining suture was March 1, 1995, and it was removed on that day. Bellard instituted an action against Dr. Biddle on January 26, 1996. Under the law as espoused by the supreme court in Moses, Bellard was barred from filing suit on October 20, 1992, three years from the date of the malpractice. In brief, the plaintiff would have us adopt the termination rule, which the supreme court specifically stated was inapplicable.

In light of the clear rejection by the Supreme Court’s previous ruling on this issue, we do not find the law of the case doctrine applicable. The ruling of the trial court is reversed and the plaintiffs case dismissed with prejudice. Costs of this appeal are assessed against Judy Bellard.

REVERSED AND RENDERED.

COOKS, J., dissents and assigns written reasons.

SAUNDERS, J, dissents for the reasons assigned by Judge COOKS.

L COOKS, J.,

Dissents:

I disagree and would find the trial court’s judgment was a final appealable judgment which status did not change because of our holding on appeal reversing it. Dr. Biddle should have applied for supervisory writs with the Louisiana Supreme Court and that Court would have had the opportunity to set aside our judgment in this case rather that merely, by dicta, declaring our reasoning erroneous in Moses.


source: Caselaw Access Project

author: 1, SAUNDERS, Judge.

license: Public Domain

text:
    Sean Mitchell AUCOIN v. Kara Thomas AUCOIN.
    No. 02-0756.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 30, 2002.

      Allen Bruce Rozas, Ville Platte, LA, for Kara Thomas Aucoin.
    Kathy F. Meyers, Ville Platte, LA, for Sean Mitchell Aucoin.
    Court composed of JOHN D. 'SAUNDERS, OSWALD A. DECUIR, MARC T. AMY, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   1, SAUNDERS, Judge.

The defendant, Kara Thomas Aucoin, appeals the judgment of the trial court and argues that the trial court committed manifest error in: 1) transferring the domiciliary custody of Nicholas Jordan Aucoin and Morgan Elizabeth Aucoin to their father Sean Mitchell Aucoin, and 2) restricting her visitation with the children to within three miles of the grandparents’ home while always in the presence of at least one grandparent. For the following reasons, we affirm the trial court’s judgment in part and reverse in part.

PROCEDURAL HISTORY

Sean Mitchell Aucoin, the plaintiff, and Kara Thomas Aucoin, the defendant, were married in January of 1994, in Evangeline Parish and later separated in July of 1998. Sean and Kara have two minor children, Nicholas Jordan Aucoin, born on May 31, 1992, and Morgan Elizabeth Aucoin, born in August of 1995. On August 10, 1998, Sean filed a petition for divorce. On November 4, 1998, a consent judgment was entered granting the parties joint custody and naming Kara as the domiciliary parent. Sean was granted reasonable visitation rights.

Sean filed a Petition for Judgment of Divorce on February 25, 1999. A Judgment of Divorce was rendered on March 12, 1999. On May 26, 2001, Sean married Misty Aucoin, a stay at home mother who has three children from a previous marriage. On January 14, 2002, Sean filed a Rule for Temporary and Permanent Custody. Accordingly, a Temporary Restraining Order was issued granting him custody of the children until further proceedings on the matter. After a three day hearing on the merits in March and April of 2002, the trial court ruled in favor of the father, ordering that Sean be designated as the domiciliary parent of both children and granting Kara supervised visitation rights.

Kara was granted visitation with the children every other weekend, from Friday | ¡^afternoon at 5:00 p.m. to Sunday afternoon at 5:00 p.m. In addition, she has visitation with the children every Wednesday night from 5:00 p.m. until the following morning. The parents also received alternating holidays with the children. The first year the children would spend Thanksgiving with Sean, Christmas with Kara, New Year’s with Sean, and Easter with Kara. Holiday visitations begin at 5:00 p.m. on the eve of the holiday, and last until 5:00 p.m. on the day of the holiday.

All visitation by Kara was to be supervised, occurring in the home of the maternal grandparents, Brenda and Tommy Thomas, and was to proceed under their supervision at all times. Kara was required to be present at their home at the time the children are dropped off for visitation. If she was not at her parents’ home during the visitation, Kara’s visitation was forfeited. The trial court further dictated that Kara could not travel outside of a three mile radius of her parents’ house, either by herself, or with the children, during her periods of visitation.

Following the rendering of the Judgment on the Rule, Kara filed a Motion for New Trial which was denied by the trial court.

FACTS

Sean and Kara entered into a consent judgment agreeing that they would share joint custody of the two minor children. Kara was designated as the domiciliary parent and Sean was granted reasonable visitation rights. At some point in 1999 Kara began living with Bobby Lee Cren-shaw, a convicted felon who, on or about December 12, 2001, was arrested on a charge of selling drugs. Mr. Crenshaw is currently serving a prison sentence for this crime.

At the time of the arrest Sean had the children for his regular visitation. He received a phone call from Kara telling him not to return the children to her as scheduled because she was currently unable to care for them. Sean testified that | ^during the phone call from Kara she was nearly hysterical and stated she was about to have a nervous breakdown and wanted to go to rehab. Sean and his wife maintained the children in their care and custody for over fourteen days, during which time they were not contacted by Kara and had no knowledge of her whereabouts or how to contact her in case of emergency.

It was not until Christmas Eve that Kara contacted the children and visited with them for approximately two hours. Sometime in early January, after Kara had taken the children back from Sean, she was contacted by an individual claiming to be a friend of Mr. Crenshaw. This man asked to set up a drug lab in Kara’s home to manufacture methamphetamine. According to the testimony of State Trooper Brooks David, sometime around January 7, 2002, Kara came to the state police claiming that she had information on a man making methamphetamine in Pine Prairie. At that time Kara indicated that she wanted to help catch the subject because she “wanted to help get drugs off the streets” and also wanted to try to help get a deal for her boyfriend, Mr. Cren-shaw, who was in prison at that time.

During that initial discussion with the state police, they informed Kara that they wanted her to contact this man about the possibility of setting up the lab. They asked her to contact them on Wednesday, January 9. The testimony of Trooper David is that they specifically informed Kara that she was to contact them before taking any action towards the alleged drug manufacturer. They received no further contact from her or about her until Saturday, January 12, 2002. They received a call at around 9:00 p.m. or 10:00 p.m. from a woman claiming to be Kara’s friend. The woman told Trooper David that the man was at Kara’s home and had already set up the drug lab. At that time the police were given an inventory of all the chemicals that were stored in the lab in Kara’s home. Trooper David stated in testimony that since three quarters of their Ragents were out of town at the time, the state police were not able to take action on the drug lab until Monday morning. He informed the caller of this and told her that, because of the hazardous nature of the lab, if Kara felt she was in danger she needed to call the Sheriffs Department of Evangeline Parish or the Police Department of Pine Prairie and report the lab.

On the following morning, Sunday, January 13, Kara called Trooper David. Once again, he instructed her to call the Evangeline Parish Sheriffs Office or the Pine Prairie Police Department. It is unclear if Kara ever followed this instruction. On Monday morning, January 14, 2002, the state police obtained a warrant, went to Kara’s residence, and seized the materials of the suspected methamphetamine lab. After discovering Kara’s boyfriend had been arrested for selling drugs, and that a drug lab was seized from Kara’s home, Sean took action to initiate a change of custody of Jordan and Morgan.

DISCUSSION

Kara presents the following issues on appeal: 1) whether the trial court commit manifest error in transferring domiciliary custody of Jordan Aucoin and Morgan Au-coin to Sean Aucoin, and 2) whether the trial court commit manifest error by restricting the visitation of the natural mother to within three miles of the maternal grandparents’ home, and always in the presence of at least one maternal grandparent.

This court has clearly stated the standard of review for an appellate court in child custody matters. “The trial court is in a better position to evaluate the best interest of the child from observances of the parties and witnesses; thus, a trial court’s determination in a child custody case is entitled to great weight on appeal and will not be disturbed unless there is a clear abuse of discretion.” Hawthorne v. Hawthorne, 96-89 p. 12 (La.App 3 Cir.); 676 So.2d 619, 625, writ denied 96-1650 (La.10/25/96); 681 So.2d 365; Cooley v. Cooley, 94-251 (La.App. 3 Cir. 10/5/94), 643 So.2d 408; Mayeux v. Mayeux, 93-1603 (La.App. 3 Cir. 6/1/94); 640 So.2d 686.

It is well established in this circuit that the standard of review for a request for modification of a child custody consent agreement is less stringent than that required to modify a considered decree. “In cases where the original custody decree is a stipulated judgment, such as when the parties consent to a custodial arrangement, and no evidence of parental fitness is taken, the heavy burden of proof enunciated in Bergeron is inapplicable.” Hensgens v. Hensgens, 94-1200 pp. 6-7 (La.App. 3 Cir.); 653 So.2d 48, 52, writ denied, 95-1488 (La.9/22/95), 660 So.2d 478, citing Bergeron v. Bergeron, 492 So.2d 1193 (La.1986).

It is uncontested in this case that the original joint custody agreement between Sean and Kara was not a considered decree. “A considered decree is one which results from the reception by the court of evidence concerning parental fitness to exercise custody.” Oliver v. Oliver, 95-1026 p. 12 (La.App. 3 Cir. 3/27/96); 671 So.2d 1081, 1089. In the present case, Sean and Kara mutually agreed to the joint custody arrangement and Sean’s visitation schedule.

Because the custody agreement between Sean and Kara was not a considered decree by the court, Sean’s burden in changing the present custody arrangement requires that he prove: 1) a change in circumstances affecting the welfare of the children had occurred since the original decree, and 2) the proposed modification is in the best interest of the children. See Weaver v. Weaver, 01-1656 (La.App. 3 Cir. 5/29/02); 824 So.2d 438; Hensgens, 653 So.2d at 52; Evans v. Lungrin, 96-576 (La.App. 3 Cir. 12/11/96); 686 So.2d 67, rev’d on other grounds, 97-0541 (La.2/6/98); 708 So.2d 731.

Under La.Civ.Code art. 131, decisions regarding custody of the children are 1 fimade with the best interest of the child being paramount. Hensgens, 653 So.2d at 52. La.Civ.Code art. 134 provides a number of factors to be considered in making the best interest determination. In Hawthorne, 676 So.2d at 625, we held that these factors are merely suggested factors and the trial court is free to use other factors to make its determination. We stated that the court should consider the totality of the facts and circumstances in its analysis of the best interest of the child. Id. Additionally, the list is not exclusive and the trial court is to be given great discretion as to the weight of the relevant factors used. La.Civ.Code art. 134, Comment (b).

Material Change in Circumstance

Kara asserts that the trial court erred when it held that there had been a material change in circumstance since the implementation of the consent agreement. She claims that trial testimony established that the elements of Sean’s complaint alleging the change in circumstance were proven not to exist. To support her contention, Kara argues that she is now employed, has transportation, is living with her parents, and has taken a drug test which showed no evidence of drug use. These factors alone do not establish that Sean failed to prove a material change in circumstance.

Beyond the elements of his original complaint, during the course of the hearing on this custody issue testimony was presented indicating that Kara has continued to maintain contact with Mr. Crenshaw after his arrest. In fact, she has made efforts on his behalf to lessen his sentence. Kara has not sufficiently shown that she has severed ties with Mr. Crenshaw. It is uncontested that she has visited Mr. Cren-shaw since his arrest on more than one occasion. Moreover, Kara stated at the hearing that her motivation for contacting the police about the request to set up a drug lab in her home was to help Mr. Crenshaw and perhaps lessen his prison sentence.

We share the trial court’s mistrust of Kara’s assertions that she will have no 17further contact with Mr. Crenshaw. Apart from Kara’s empty assurances to this fact, there has been no evidence presented to support Kara’s claim in this regard. For the safety of the children, the court is unwilling to make the assumption, as Kara’s counsel requested at the hearing, that Mr. Crenshaw is permanently out of Kara’s life and does not pose a risk to the children.

Additionally, it is undisputed that a drug lab was seized from Kara’s home early this year. This is the same home where, at the time, her two minor children lived. During his testimony at the hearing, Trooper David emphasized the extreme danger inherent to labs used to produce methamphetamine. He indicated that the lab had apparently been used to produce drugs and that drug residue had been found throughout the home requiring a clean up team to come in and clean the home.

Based on these facts, we find that the trial court did not commit manifest error in holding that Sean had proven a material change in circumstances since the implementation of consent agreement granting Kara domiciliary custody of the children.

Best Interest of the Children

The counselors treating Jordan indicated at trial that they have seen a marked improvement in the children since they have been residing with Sean. Kara argues that because the counselors could not make a definite recommendation at the hearing regarding the children’s permanent placement, a change in the custody arrangement would not be in the children’s best interest. In fact, the testimony at the hearing indicates that the counselors could not make a permanent placement recommendation because they had not performed any home studies. Without such studies, they did not have enough information to make such a recommendation.

Both counselors stressed the importance of a structured and stable environment |sfor the well being of the children. While unable to make a permanent placement recommendation, the counselors did say that the children had done well while in Sean’s custody and that they did not see any harm in leaving them there. Samuel Fusillier is the clinic manager and Chief of Children’s Services at Ville Platte Mental Health Center. He has been treating Jordan since March of 1999 and stated in his testimony that Jordan was doing well now that he is in Sean’s house. It was Mr. Fusillier’s opinion that to change that arrangement now might be risky. He also stated that Sean’s home provides a stable, structured household, which is what Jordan needs now.

Dr. Timothy Trant, a licensed psychologist and professor of psychology at Louisiana State University at Eunice, began treating Jordan in May of 2001. Dr. Trant stressed the importance of a consistent home environment in terms of its rules, expectations, and follow up. He also stated in his testimony that he had seen some academic and behavioral improvement since Jordan has been with Sean and Misty.

Both of the children’s teachers indicated in their testimony at the hearing that the children were doing well since Sean has assumed custody and that both Misty and Sean were actively involved in the children’s studies and schoolwork. Incidents of tardiness, which had been a problem while Kara had domiciliary custody, ceased after Sean and Misty took domiciliary custody of the children. The teachers indicated that they were familiar with Sean and Misty’s household and knew it was a very structured, stable, and supportive household.

Limitation of Kara’s Visitation

Despite the fact that the record in this case provides ample evidence supporting Sean’s request to modify the consent agreement awarding Kara domiciliary custody of the children, we do not find sufficient evidence to warrant the trial court’s severe 18limitations on Kara’s visitation privileges. We see no justification for the limitations imposed by the trial court.

Non-custodial parents have a right to reasonable visitation. “A parent not granted custody or joint custody of a child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would not be in the best interest of the child.” La.Civ.Code art. 136(A). This circuit recognizes the need for a child to have as much contact with both parents as possible. While the right of visitation is not unlimited, and is always subservient to the best interest of the child, we do not feel such stringent visitation requirements are required for the best interest of the children to be met in this case. Maxwell v. LeBlanc, 434 So.2d 375 (La.1983); Muller v. Muller, 94-281 (La.App. 3 Cir. 10/5/94); 643 So.2d 478.

The highly supervised and restricted visitation rights assigned by the trial court are usually reserved for situations where visitation with the parent causes intense distress to the children, typically circumstances where the children were abused or severely neglected. That was not the case here and it is clear that visiting with their mother causes no such distress to these children. In fact, the children’s statements to the trial judge during the hearing indicate their strong desire for continued contact with Kara.

We agree with the trial court that it is important that the children not be in Mr. Crenshaw’s presence; however, he is currently in prison. There is no evidence of recent drug activity and we do not feel there is a likelihood that this would be a significant factor in a short term visitation context. During the incident involving the drug lab in Kara’s home she apparently was conscientious enough of the children’s welfare to ensure that they were not actually in the home while the lab was present. We feel that the circumstances surrounding the existence of the drug lab create a | mreasonable question of Kara’s responsibility and fitness as a custodial parent to these children; however, they do not warrant the severely limited and supervised visitation imposed by the trial court.

The facts of this case do not warrant supervised visitation of the children within a single building. We see no likelihood that the children could be harmed by allowing their mother to take them to the zoo or shopping, for instance. We do not see sufficient evidence that the mother cannot be trusted, even with short term unsupervised visitation rights.

CONCLUSION

Based on all the testimony presented at trial and for the reasons stated above, we cannot say that the trial court abused its discretion by awarding domiciliary custody of Jordan and Morgan to their father, Sean. We find no merit to Kara’s arguments that domiciliary custody should remain with her for the sake of stability. While it is clear that stability and security are key factors in determining the living environment that is in the children’s best interests, Kara’s situation as outlined at trial through the testimony of numerous parties illustrates that Kara is not able to provide a stable and consistent situation at this time. The existence of the drug lab in Kara’s home, as well as her long term relationship with Mr. Crenshaw, present a change in circumstances warranting a modification of the custody agreement between Sean and Kara.

The trial court was not clearly erroneous in finding that Kara was not responsible, reliable, or trustworthy enough to have permanent care and custody of the minor children. The best interests of the children are paramount, and given the particular circumstances of this case, we agree with the trial court’s determination that the best interests of the children would be served at this point by awarding domiciliary Incustody to Sean, with joint custody and reasonable visitation allowed by Kara.

However, for the reasons stated above, we find that the trial court did commit an abuse of discretion in so severely limiting Kara’s visitation rights. We modify the trial court’s visitation order as follows: 1) we remove the requirement that Kara’s visitation be exercised in the home of Brenda and Tommy Thomas and under the supervision of Brenda and Tommy Thomas; 2) we remove the requirement that Kara cannot leave the home of Brenda and Tommy Thomas for more than two hours during her visitation; and 3) we remove the requirement that Kara not transport the children more than three miles from the home of Brenda and Tommy Thompson during her visitation and that Brenda or Tommy Thomas supervise any visits away from the Thomas’ household. We retain the trial court’s order that Kara cannot have any contact with Bobby Lee Crenshaw while the children are visiting. We also retain the visitation schedule outlined in the trial court’s May 10, 2002 judgment.

DECREE

For the forgoing reasons, the judgment of the trial court affirmed is in part and reversed in part. Costs of this appeal are to be divided equally between Sean and Kara Aucoin.

AFFIRMED IN PART; AMENDED IN PART; AND RENDERED.

AMY, J., Dissents and would affirm the trial court’s judgment in full.

PICKETT, J., Dissents and would affirm the ruling of the trial court, finding no abuse of discretion in placing limitations on the defendant’s visitation.


author: | THIBODEAUX, Judge.

text:
    ALBERTSON’S, INC. v. Jessica MOULDS.
    No. 02-753.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 30, 2002.

      Michael K. Cox, Cox, Cox, Filo & Camel, Lake Charles, LA, for Defendant/Appellee, Jessica Moulds.
    Shelly D. Dick, Forrester, Jordan & Dick, L.L.C., Baton Rouge, LA, for Plaintiff/Appellant, Albertson’s, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS and JIMMIE C. PETERS, Judges.
   | THIBODEAUX, Judge.

In this workers’ compensation case, plaintiff, Albertson’s, Inc., appeals a judgment of the Office of Workers’ Compensation (“OWC”) in favor of the defendant, Jessica Moulds, denying Albertson’s request for termination and forfeiture of Moulds’ workers’ compensation benefits. The OWC concluded that Ms. Moulds had not misrepresented the extent of her injuries nor her inability to return to work. It denied claims of employee fraud under La.R.S. 23:1208. As a result, Albertson’s request for restitution of benefits was denied, and Ms. Moulds’ benefits, including past due benefits, were reinstated. Ms. Moulds appeals the judgment of the OWC, which denied penalties and attorney fees against Albertson’s on the grounds that its discontinuation of benefits was not arbitrary and capricious.

For the following reasons, we affirm.

Evidence that Ms. Moulds sustained an injury while in the course and scope of her employment is well-supported. Thus, she is entitled to workers’ compensation benefits. However, Albertson’s termination of benefits cannot be deemed arbitrary and capricious based on the facts before us. We, therefore, deny Ms. Moulds’ request for attorney fees.

I.

ISSUES

Issues of Albertson’s, Inc, as Appellant

We shall consider the following issues on appeal:

(1) whether the OWC erred in its denial of Albertson’s request for termination and forfeiture of workers’ compensation benefits?
| ?,(2) whether the OWC erred in awarding past indemnity benefits when Ms. Moulds was offered a job position within her physical capacity?

Issue of Jessica Moulds, as Appellee

Whether Albertson’s, Inc. was arbitrary and capricious in its discontinuance of Jessica Moulds’ workers’ compensation benefits, giving rise to an award of attorney fees and penalties, will be considered.

II.

FACTS

On November 11, 2000, Jessica Moulds, a full-time lobby clerk at Albertson’s grocery store in Lake Charles, Louisiana, suffered a low back strain while pushing a box of merchandise in the store. As a result of her injury, Ms. Moulds received workers’ compensation benefits based on her average weekly wage of $322.00 per week. Her weekly indemnity benefits amounted to a rate of $214.67 from the date of her injury. On June 15, 2001, Albertson’s discontinued Ms. Moulds’ workers’ compensation benefits, alleging that Ms. Moulds made false statements concerning her physical condition and ability to return to work. Pursuant to La.R.S. 28:1208, Albertson’s filed a disputed claim for compensation of benefits based on fraud.

Albertson’s disputed claim for compensation was sought after video surveillance purportedly illustrated that Ms. Moulds was able to do some physical activity despite her contention that she could not stand for more than ten minutes. Prior to the filing of the claim, Albertson’s offered Ms. Moulds a light-duty employment position to accommodate her injury. However, Ms. Moulds refused the position asserting that she could not do any work. The light-duty position was goffered to Ms. Moulds when her treating physician released her back to work on a limited basis. However, Dr. Erich Wolf later rescinded the release after Ms. Moulds informed him that she continued to suffer pain from the injury. Further, Dr. Wolf informed Ms. Moulds that a second surgery may be required to remedy her back troubles.

The surveillance tape was conducted by a private investigator, Mark Staub, hired by Albertson’s. Staub conducted 96 hours of surveillance between June 15-June 21, 2001, primarily at 735 East School Street, a building that the Lake Charles Police Officer’s Association (“L.C.P.O.A.”) uses to conduct its business operations. On those days, Staub witnessed Ms. Moulds picking up donations from various residents in the Lake Charles area for the L.C.P.O.A. The surveillance tape illustrated that Ms. Moulds was not wearing her lumbar corset or T.L.S.O. brace as prescribed by her doctor and that Ms. Moulds was able to engage in some physical activity. Ms. Moulds asserted that she often laid on a sofa inside the office building to relieve her back pain. Additionally, she did not pick up anything over ten pounds while injured.

Ms. Moulds’ parents, Kenneth and Kathryn Laughlin, were volunteer workers for the L.C.P.O.A. The L.C.P.O.A. hired Capital Telemarketing Services, Inc. (“Capital”) of Houston, Texas, to aid them in raising money for its police camp. Capital received 40% of the monies raised for its services. The L.C.P.O.A. would provide a check to Mr. Laughlin for 40% of the donations. Mr. Laughlin, in turn, compensated each paid employee of Capital working in that office. The remaining funds were used for the upkeep and maintenance of the car used to pick up donations, gas, electricity for the building, and office supplies necessary to its operation. Any | remaining money was placed in the Capital account. Ms. Moulds asserted that neither she nor her parents were ever paid for picking up donations. Further, Ms. Moulds argued that she picked up donations only to assist her parents who were having car trouble during that week. Albertson’s argued that Ms. Moulds was receiving earnings from Capital.

According to the L.C.P.O.A.’s fundrais-ing records, payments were made to Capital’s paid employees from the 40% Capital received. One of the employee’s, on the records, name began with the initials “JES.” Albertson’s concluded that “JES” was shortened for Jessica Moulds and that Ms. Moulds was receiving wages from Capital and the OWC simultaneously. Ms. Laughlin asserted that “JES” is a shortened form of one of Capital’s employees from Conroe, Texas, and not Jessica Moulds. Detective Jimmy Bailey, president of the L.C.P.O.A., could not confirm that “JES” was indeed Jessica Moulds. Nevertheless, these observations and evidence led Albertson’s to terminate Ms. Moulds’ workers’ compensation benefits.

On July 24, 2001, Ms. Moulds filed an answer in response to Albertson’s disputed claim of compensation and petition of forfeiture denying each allegation. In addition, Ms. Moulds filed a reconventional demand asserting that she was entitled to disability benefits and that Albertson’s discontinuation of her benefits was arbitrary and capricious. In response, Albertson’s denied Ms. Moulds’ reconventional demand, and on July 27, 2001, Albertson’s supplemented its original petition requesting reimbursement of all benefits paid to Ms. Moulds based on the alleged fraud. Again, Ms. Moulds denied all allegations.

On January 16, 2002, after making efforts to mediate, this case came before the Office of Workers’ Compensation. After post-trial briefs were submitted, the workers’ compensation judge rendered judgment denying Albertson’s claim of [..¡forfeiture of workers’ compensation benefits, and its request for reimbursement of those benefits. According to the workers’ compensation judge, Albertson’s had not adequately proved that Ms. Moulds was working for money while receiving workers’ compensation benefits. Further, the workers’ compensation judge found that Ms. Moulds was entitled to benefits, including past due benefits; however, penalties and attorney fees would not be assessed against Albertson’s for terminating benefits.

Awarding Indemnity Benefits

Albertson’s asserts that the OWC erred in awarding indemnity benefits to Moulds. According to Albertson’s store manager, Owen Wall, Ms. Moulds refused light duty work offered to her within her physical capacity. The record indicates that Dr. Wolf rescinded his release after learning that Ms. Moulds continued to suffer lower back pain. Though the video shows that Moulds could engage in some physical activity, Dr. Wolf did not find that her activities were inconsistent with her physical disability. Based on Dr. Wolfs testimony, we find that Ms. Moulds is entitled to her benefits.

At trial, Dr. Wolf was shown portions of the video obtained through video surveillance. Dr. Wolf was able to observe some of Ms. Moulds’ physical activity. Despite these observations, Dr. Wolf noted that her activities were not outside the scope of her physical capability in light of her injury. His testimony is as follows:

Q. Dr. Wolf, let’s talk about what the video doesn’t show. If I further told that you the testimony in this case was that when Jessica Moulds would go into that office that you see her frequently entering on that day, there was a sofa on which she would lie down while she was inside the office for long periods of time, and if she were to further testify that she needed to do that because she was in pain that day, and on all of those days, would that be something | [important for you to consider about her physical restrictions in those days?
A. Yes
Q. And if that were the case, Doctor, and if Albertson’s were not able to provide her a job where she was able to lie down intermittently throughout the day, and she testifies that she needed to lay down because of the pain, would that disqualify her from the jobs that Albert-son’s was making available?
A. Yes.
Q. And if you further knew those facts about her having to lie down because of pain in that office at times throughout the day, would it then make you believe that her system — her symptoms that she related to you on June 26 were not so inconsistent with her behavior on those days?
A. Yes.
Q. Dr. Wolf, wouldn’t you want — after having — after knowing those facts about her having to recline or lie down in that office during those days, wouldn’t you want to do a functional capacity evaluation to make a determination about her level of functioning—
A. Absolutely.
Q. — and what jobs she could or couldn’t do at this time or back then?
A. Yes.
Q. And without having the results of a functional capacity evaluation, would you maintain your opinions that you formed back in June 2001, that Jessica Moulds was disabled from any type of work?
A. I’m sorry, please restate the question?
Q. Would you maintain your opinion that you formed and that you related in a letter Jessica Moulds was disabled from any type of work before you would have the opportunity to see the functional results of a functional capacity evaluation?
A. Yes.
|7Q. Doctor, would you also, without the benefit of a functional capacity evaluation, and without the benefit of another visit from Jessica Moulds, maintain your position that she needs a second surgery to her lower back?
A. I suspect that based on her sympto-matology, she will need another surgery to her back.

Based on the above testimony, we find that Ms. Moulds sustained a back injury while in the course and scope of her employment. Her injuries prevented her from resuming work and even light-duty positions offered to her by Albertson’s. As a result, Ms. Moulds is entitled to workers’ compensation benefits and past due benefits, as granted by the OWC.

Attorney Fees and Penalties

Ms. Moulds asserts that the OWC erred in refusing to award penalties and attorney fees against Albertson’s. According to the defendant, Albertson’s termination of her workers’ compensation benefits was arbitrary and capricious because there was no basis for the discontinuance of benefits. We disagree.

Ms. Moulds seeks attorney fees and penalties against Albertson’s for the termination of her benefits. Under the current Workers’ Compensation Act, Ms. Moulds would not be entitled to penalties for discontinuance of benefits.

Two statutory provisions, LSA-R.S. 28:2101(F) and LSA-R.S. 23:1201.2 provide for the award of penalties and attorney’s fee in workers’ compensation cases. The applicable statutory authority for assessing an insurer with penalties and attorney’s fees depends on whether the insurer failed to commence the payment of benefits in a timely fashion or discontinued benefits that had been timely paid. In Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41 [,] the Louisiana Supreme Court stated that LSA-R.S. 23:1201.2 applies only when an insurer or employer discontinues payment of benefits; it does not apply when there has been a failure to commence or pay benefits timely. Williams, 98-2271, 737 So.2d at 45. The distinction drawn in the Williams ease is significant because both penalties and attorney’s fees are [«recoverable under LSA-R.S. 23:1201(F), whereas only attorney’s fees are recoverable under LSA-R.S. 23:1201.2. Id.

(Citation omitted). (Emphasis added). Insurance Company of North America v. Labit, 99-2448, p. 2 (La.App. 1 Cir. 11/15/00); 772 So.2d 385, 387.

In this case, payments were paid to Ms. Moulds from the date of her injury until June 26, 2001, when Albertson’s had reason to believe that she had committed workers’ compensation fraud. As a result, this termination of benefits constitutes a discontinuance of benefits, rather than a denial of benefits pursuant to La.R.S. 23:1201.2. Currently, this statute has no penalty provisions, and only awards attorney fees.' As a result, the defendant is not entitled to penalties based on La.R.S. 23:1201.2. Louisiana Revised Statutes 23:1201.2, “Discontinuance of payment; attorney’s fees,” states the following:

Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of all reasonable attorney fees for the prosecution and collection of such claims. The provisions of R.S. 23:1141 limiting the amount of attorney fees shall not apply to cases where the employer or insurer is found liable for attorney fees under this Section. The provisions of R.S. 22:658(C) shall be applicable to claims arising under this Chapter.

Additionally, we must determine whether Albertson’s “acted arbitrarily, capriciously, and without probable cause in discontinuing the payment of compensation ... so as to warrant imposition of attorney’s fees under Section 1201.2.” Williams v. Rush Masonry, Inc., 98-2271, p. 5 (La.6/29/99); 737 So.2d 41, 45. “The determination of whether an employer/insurer should be cast with ... attorney fees in a workers’ compensation proceeding is a question of fact....” Lyons v. Bechtel Corporation and AIU, 00-0364, p. 16 (La.App. 3 Cir. 12/27/00); 788 So.2d 34, 45, writ denied, 787 So.2d 966 (La.2001).

Arbitrary and capricious behavior consists of willful and unreasoning action, without consideration and regard for facts and circumstances presented, or of seemingly unfounded motivation.
Awards of penalties and attorney’s fees in workers’ compensation are essentially penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers. Although the Workers’ Compensation Act is to be liberally construed in regard to benefits, penal statutes are to be strictly construed.
The fact that an employer is subjectively motivated to avoid paying compensation is not determinative. Neither is the fact that an employer loses a disputed claim.

(Citations omitted). Williams, 737 So.2d at 45-46.

In this case, plaintiffs disputed whether Ms. Moulds’ injury prevented her from returning to a light duty position offered to her by Albertson’s. Albertson’s hired an investigator to conduct video surveillance after she refused the position. Video surveillance tapes indicated that Ms. Moulds picked up donations from various residents for the L.C.P.O.A. for several hours over a six-day period, shopping at the Dollar General, as well as other activities that required some bending and standing. Additionally, the store director of Albertson’s, David Swissler, testified that he saw Ms. Moulds and her family at Mr. Gatti’s, a local pizza restaurant, while she was on disability leave. Swissler testified before the workers’ compensation judge that Ms. Moulds bent down to pick up a fork she had dropped and that she was not. wearing her corset. Based on these facts, it was reasonable for the workers’ compensation judge to conclude that there was evidence on which the employer could reasonably | ]0rely upon to terminate benefits. Finding no error in the judgment of the Office of Workers’ Compensation, we conclude that Albertson’s decision to discontinue benefits was not arbitrary and capricious.

III.

CONCLUSION

For the above reasons, the judgment of the OWC awarding the defendant, Jessica Moulds, compensation benefits, including past due benefits, is affirmed as is the judgment insofar as it denies penalties and attorney fees. All costs of this appeal are assessed against appellant, Albertson’s, Inc.

AFFIRMED.

      . Capital Telemarketing Services, Inc. is also referred to in the record as Capital Productions.

      . Albertson's contention that the workers’ compensation judge misinterpreted La.R.S. 23:1208 by requiring proof that Ms. Moulds earned wages is misplaced. The judge's reasons for judgment demonstrates she relied on evidence independent of this assertion in reaching her decision.


author: 11 COOKS, Judge.

text:
    Angela O. LeBLANC v. CALCASIEU PARISH SCHOOL BOARD.
    No. 02-728.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 30, 2002.

      Mark Zimmerman, Lake Charles, LA, for Appellant, Angela LeBlanc.
    Christopher M. Trahan, Raggio, Cappel, Chozen & Berniard, Lake Charles, LA, for Appellee, Calcasieu Parish School Board.
    Court composed of ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS and JIMMIE C. PETERS, Judges.
   11 COOKS, Judge.

The claimant, Angela LeBlanc, appeals the judgment of the Office of Workers’ Compensation finding she did not prove her injuries resulted from a work-related accident. For the following reasons, we affirm.

FACTS

Angela LeBlanc claimed she suffered a back injury on July 13, 2000, while employed as a janitor with the Calcasieu Parish School Board. Specifically, she asserted she slipped and fell while stripping a floor at LeBlanc Middle School. LeBlanc continued to work as a janitor with the School Board until February 9, 2001.

LeBlanc did not seek medical treatment until November of 2000, when she visited Dr. Brian Stewart, complaining of migraine headaches. Her first complaint of lower back pain occurred on a January 24, 2001 visit to Dr. Jose Gonzales’ office. However, LeBlane did not relate her back complaints to any work incident. She again saw Dr. Gonzales on February 12, 2001, with additional complaints of pain radiating into her left leg. Again, no work-related accident was mentioned.

On March 23, 2001, LeBlane was diagnosed by Dr. Stephen Flood, an orthopedic surgeon, as having herniated discs in her lower back. Dr. Flood recommended she undergo a period of physical therapy before determining whether surgery was necessary. He also felt LeBlane could not return to any duties which required lifting more than forty pounds. On this occasion, LeBlane related her back pain to the July 13, 2000 work incident.

As set out earlier, LeBlane continued to work as a janitor until February 9, 2001, when she notified the School Board she could no longer perform her duties. She later informed the School Board she would be filing a claim for workers’ compensation benefits. A formal claim for compensation was filed on May 10, 2001. |2The School Board instituted an investigation into the claim and subsequently denied compensa-bility.

The claim for compensation was tried before the Office of Workers’ Compensation. The Workers’ Compensation Judge held, although LeBlane had proven she suffered an accident in the course and scope of her employment, she failed to carry the burden of proving that her current disability resulted from the accident. LeBlane has lodged this appeal, contending the WCJ erred in finding she failed to prove the work accident precipitated her present disability.

ANALYSIS

A workers’ compensation claimant bears the burden of establishing by a preponderance of the evidence that he has received “personal injury by accident arising out of and in the course of his employment.” La.R.S. 23:1031(A); Bruno v. Harbert Int’l Inc., 593 So.2d 357 (La.1992). The workers’ compensation judge’s determination as to whether the claimant’s testimony is sufficient to discharge the burden of proof constitutes a factual determination. Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Hoy v. Gilbert, 98-1565 (La.3/2/99), 754 So.2d 207; Seal v. Gaylord Container Corporation, 97-0688 (La.12/2/97), 704 So.2d 1161. In applying the manifest error/clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Seal, 704 So.2d 1161; Stobart v. State, 617 So.2d 880 (La.1993). Where there are two permissible views of the evidence, a fact finder’s choice between them can never be manifestly erroneous or clearly wrong. Seal, 704 So.2d 1161; Stobart, 617 So.2d 880.

Initially, we note the School Board does not contest that LeBlane sustained |3some form of accident on July 13, 2000, while in the course and scope of her employment. However, it maintains LeBlanc’s current disability did not arise from that incident.

LeBlane claimed at trial that her back and leg problems began immediately after the accident and continued thereafter. LeBlane testified she attempted to work through her back pain, until it became unbearable. Although she admitted not seeking medical treatment following the work accident, she presented the testimony of several co-workers who stated she was experiencing back pain in the fall of 2000. The employer presented the testimony of Assistant Principal Anne Davis, LeBlanc’s supervisor, who stated she saw LeBlane on a daily basis and saw no symptoms of back pain until after the Christmas holidays of 2000.

The record revealed LeBlanc sought no medical treatment whatsoever until November 3, 2000, when she was seen by Dr. Stewart, complaining of migraine headaches. No complaint of back or leg pain was mentioned. LeBlanc also acknowledged she saw Dr. Gonzales on November 13, 2000 and December 4, 2000, because she was experiencing migraine headaches and once again failed to mention she was feeling any back or leg pain.

Her first complaint of lower back pain was voiced during a January 24, 2001 visit to Dr. Gonzales. However, LeBlanc did not relate her back complaints to any work accident, nor did she mention any leg pain. Dr. Gonzales noted LeBlanc did refer to “some recent squatting” when questioned about the potential cause of the back pain. LeBlanc exhibited good reflexes and good strength with a negative straight leg raise test on that date.

She again saw Dr. Gonzales on February 12, 2001, with continued back pain and additional complaints of pain radiating into her left leg. Again, no work-related [ .¡accident was mentioned, but there was again a reference to “recent squatting.” Dr. Gonzales recommended an MRI be performed. The radiologist concluded from the MRI that a large disc herniation was present at the L5-S1 level. Dr. Gonzales referred LeBlanc to an orthopedic surgeon.

In a report dated March 23, 2001, Dr. Flood also concluded LeBlanc had herniated discs in her lower back. He recommended physical therapy before determining whether surgery was required. He also placed a forty pound lifting restriction on LeBlanc. For the first time, LeBlanc related her back pain to the July 13, 2000 work incident.

LeBlanc relies on Guillory v. Wal-Mart Stores, Inc., 01-127, p. 9 (La.App. 3 Cir. 10/3/01), 796 So.2d 772, 777, writ denied, 01-2988 (La.1/25/02), 807 So.2d 844, for the well-settled rule that “[a] claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.” However, the WCJ determined that LeBlanc was not entitled to the presumption because she failed to establish that her symptoms appeared and continuously manifested themselves following the accident. We find no manifest error in this determination. The fact that LeBlanc received no medical treatment whatsoever for four months following the accident, and made no mention of any back problems in her first three visits to doctors after that four-month period preponderates against the subsequent back injuries being related to the July 13th accident.

The WCJ heard the testimony of all the witnesses, reviewed the medical record Rand determined that LeBlanc failed to carry her burden of proof. Considering the great discretion the WCJ has in making factual determinations and credibility assessments, we conclude the factual findings of the workers’ compensation judge are not clearly wrong. Accordingly, the judgment of the Office of Workers’ Compensation is affirmed and costs are assessed to Angela LeBlanc.

AFFIRMED.

THIBODEAUX, J., dissents and would grant indemnity and medical benefits based on a presumption of causation.


author: h COOKS, Judge.

text:
    COLONIAL NURSING HOME v. Liddia J. BRADFORD.
    No. 02-588.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 30, 2002.

      Robert T. Lorio, Rabalais, Unland & Lorio, Covington, LA, for Appellant, Colonial Nursing Home.
    Joseph T. Dalrymple, Rivers, Beck, Dal-rymple & Ledet, Alexandria, LA, for Ap-pellee, Liddia J. Bradford.
    Court composed of HENRY L. YELYERTON, SYLVIA R. COOKS and BILLIE COLOMBARO WOODARD, Judges,
   h COOKS, Judge.

Liddia J. Bradford was working as a certified nursing assistant for Colonial Nursing Home on July 29, 2000. On that date, while she and her co-worker Christie Moore were positioning a patient in bed, Bradford claimed she felt something pull in her lower back. When she returned home that day, Bradford stated she took some aspirin and went straight to bed.

The next day, when she awoke in severe pain, Bradford testified she called the nursing home and informed Cheryl Jackson of the incident and indicated she would not be able to come into work that day. According to Bradford, Cheryl Jackson stated she would inform personnel.

That same day, Bradford was taken by her fiancé, Remus Ford, to Huey P. Long Medical Center for treatment. She informed them she was having pain in her lower back. According to Bradford, she also informed the emergency room personnel of other physical problems she had been experiencing. She was given medication for her back pain.

Bradford went back to the medical center the next morning because the pain medication did not alleviate her back pain. Bradford then went to Colonial and reported the incident to Pat Ducote, the director of nursing. Bradford returned to the medical center and requested a work release form. She was told as long as her back was hurting she would not be given a release.

Since the date of the accident, Bradford has been unable to return to her nursing duties. Bradford remained in constant pain, and had very limited mobility. She continued to undergo periodic treatment at Huey P. Long Medical Center, including physical therapy.

Bradford began seeing Dr. Robert Rush on April 6, 2001. He felt there was objective evidence of tightness and tenderness in her back. He ordered an MRI, |2which revealed a disc bulge at L4-5, and a left sacroiliac strain. She was advised against any bending, twisting, squatting and climbing, which effectively prevented her from engaging in her nursing duties. These were long term restrictions. Dr. Rush felt Bradford’s problems were not diskogenic, but the result of a piriformis syndrome, which causes pressure on the sciatic nerve. This causes very limited motion, which he felt left her unable to work from the date of the injury.

Dr. John Sweeney examined Bradford at the request of the employer. Dr. Sweeney felt Bradford was exaggerating her symptoms, and concluded he could find “no objective evidence in a detailed review of her past medical history, medical records, medical examination and medical history to support an injury that occurred on or about July 29, 2000.” Dr. Sweeney’s examination did not take place until approximately eleven months after the incident.

On August 25, 2001, Bradford was sued by Colonial, which asserted that Bradford did not sustain a work-related accident. The employer also alleged that Bradford engaged in action or inaction in violation of La.R.S. 23:1208 and 23:1208.1. At this point, Bradford had not requested payment of any disability benefits or medical expenses stemming from the alleged accident. After retaining a lawyer, Bradford answered the suit against her and filed her claim for disability benefits, medical expenses, penalties and attorney fees.

Dr. Frazer Gaar was appointed by the Office of Workers’ Compensation to perform an independent medical examination of Bradford on December 5, 2001. Dr. Gaar also felt Bradford’s problems were not diskogenic. He opined that Bradford may have been exaggerating her complaints of pain. He did note her lumbar motion was limited and she had pain in her lower left back. He also found she had decreased sensation to pinprick through the left leg. He concluded, noting the history she related, Bradford sustained a soft tissue injury to her lower back. He felt she was 13capable of performing medium duty work, with a lifting restriction of fifty pounds and limited bending.

Buster Fontenot, a vocational counselor, was assigned Bradford’s claim on January 4, 2002. He was asked to provide a job analysis. He concluded the certified nursing position at Colonial fell within the light to medium level physical demand category. He conferred with Dr. Gaar, who felt Bradford could perform light to medium duty work.

On January 10, 2002, Dr. Rush was contacted by Buster Fontenot, the employer’s vocational specialist, to inquire whether Bradford could engage in a sedentary to light-duty job. Dr. Rush responded on January 15, 2002, stating that Bradford could perform light duty work lifting twenty pounds maximum. Dr. Rush also informed Fontenot, that in his opinion, Bradford had not reached maximum medical improvement, although he felt she could attempt light-duty employment.

The matter was tried before the Office of Workers’ Compensation. The workers’ compensation judge (WCJ) denied the employer’s fraud claims under La.R.S 23:1208 and 23:1208.1. He also found Bradford sustained a work-related injury and was temporarily, totally disabled from July 29, 2000 through January 15, 2002. After that date, the WCJ ruled Bradford was entitled to supplemental earnings benefits at an undiscounted rate until her condition changes. Bradford was awarded $11,193.94 in medical benefits. The employer was assessed $2,000 in penalties for its failure to offer vocational rehabilitative services; $2,000 for its failure to pay indemnity benefits; and $2,000 for its failure to pay medical benefits. The employer also was ordered to pay $4,000 in attorney fees for its failure to offer vocational rehabilitation services; $8,000 in attorney fees for its failure to pay indemnity benefits; and $8,000 in attorney fees for its failure to pay medical benefits. The employer appealed the judgment, asserting the following assignments of error:

|41. The workers’ compensation judge erred in assessing penalties and attorney fees for the employer’s failure to offer vocational rehabilitation services.
2. The workers’ compensation judge erred in denying the employer’s claim for workers’ compensation fraud pursuant to La.R.S, 23:1208 and forfeiture of benefits pursuant to La.R.S. 23:1208.1.
3. The workers’ compensation judge erred in awarding temporary, total disability benefits from the date of injury through January 15, 2002.
4. The workers’ compensation judge erred in awarding supplemental earnings benefits with a zero earnings offset from January 15, 2002 until a change in status.
5. The workers’ compensation judge erred in awarding past due medical benefits and making them payable directly to the employee rather than the medical provider.
6. The workers’ compensation judge erred in concluding the employer arbitrarily and capriciously denied benefits and in awarding penalties and attorney fees.

FRAUD AND FORFEITURE OF BENEFITS

La.R.S. 23:1208 governs the consequences of false statements made by parties in connections with a workers’ compensation claim. Under R.S. 23:1208, in order for there to be a forfeiture of benefits, the claimant must have: (1) made a false statement or representation; (2) willfully made the statement or misrepresentation; and (3) made the statement or misrepresentation for the purpose of obtaining or defeating any benefits or payments. Resweber v. Haroil Constr. Co., 94-2708 (La.9/5/95), 660 So.2d 7. All of these requirements must be present before a claimant is deemed to have forfeited benefits. Harris v. Bancroft Bag, Inc., 30,431 (La.App. 2 Cir. 4/9/98), 714 So.2d 44. Section 1208 is penal in nature and must be strictly construed. Wallace v. Lavergne Transport, 2002-0123 (La.App. 3 Cir. 6/12/02), 819 So.2d 508.

La.R.S. 23:1208.1 applies when an employee is dishonest on an employer’s | ^medical questionnaire before the accident or injury. In Resweber v. Haroil Const. Co., 94-2708, 94-3138 (La.9/5/95), 660 So.2d 7, the supreme court concluded that the legislatively imposed forfeiture under La.R.S. 23:1208.1, applies only if the employer suffers prejudice. An employer is prejudiced only when the false statement “directly relates to the medical condition for which a claim is made or affects the employer’s ability to receive reimbursement from the second injury fund.” La. R.S. 23:1208.1. The claimant must do more than simply provide untruthful answers before forfeiting benefits. The employer must also prove that the untruthful statements were prejudicial to it and that it provided the employee with statutory notice of the forfeiture provision. Because statutory forfeiture is a harsh remedy, its application must be strictly construed. Resweber, 660 So.2d 7.

Turning to the pertinent facts, when the employer filed suit for fraud and forfeiture of benefits, Bradford had not requested any disability benefits or medical expenses from it. Although Bradford did not express an intent to claim benefits under the Act, the employer nonetheless alleged Bradford “lied about the facts surrounding her accident and her alleged reporting to other employees at the nursing home, as well as her post-accident symptoms and statements to her doctors.” Additionally, the employer asserted “she clearly lied about her extensive history of prior medical treatment including specific treatments and medications she received for prior problems with her back.”

The WCJ found the medical records did not establish any “significant experience of pain” by Bradford prior to the accident. He concluded any pain Bradford experienced in the five years prior to the accident were “unexceptional aches and pains or ailments which — which [Bradford] could not conceive would be related to the claim that she is making.”

The employer also alleged that Bradford was not candid about medical ^treatment she received at Avoyelles Parish Health Center for left leg problems. Bradford denied she received treatment for any leg problems at Avoyelles. The WCJ reviewed those records, and found they pertained to family planning and family counseling issues. There was no mention in those records of any leg problems.

The employer also referenced a medical record from Dr. Edmond Kalifay dated October 9,1996, as an example of a “willful misrepresentation.” This record, it asserted, shows Bradford complained about pain from hurting her back at a store when she struck a gumball machine. However, Bradford testified this was upper left back pain and she forgot about it because it did not last long. We note Dr. Kalifay found this alleged earlier injury to Bradford’s back was a contusion rather than a back strain.

A review of the medical records convinces us, as the WCJ obviously found, Bradford’s back pain complaints were general in nature and associated with other ailments, including an epidural injection, urinary tract infection, asthma, acid reflux disease and the noted incident where she struck a gumball machine. There is nothing in the record convincingly establishing that Bradford’s pain complaints evidences she suffered from a pre-existing illness or injury that directly relates to the at issue work injury. The employer, additionally, has not established how it has been prejudiced in any way by the alleged failure to disclose.

The WCJ also found that Bradford revealed the majority of these alleged misrepresentations in her deposition. The WCJ stated in his oral reasons:

Turning now to the employer — well, the Court concludes that all of these instances of alleged misrepresentations are nonexistent because Ms. Bradford disclosed all of them at her deposition when she was asked specific rather than general questions about these things and that the various — the various medical records the employer refers the Court to say, oh, look, this lady was not pain free are just general aches and pains associated with asthma, constipation, reflux gastric disease, pregnancy. All immaterial to a claim for a back injury.

|7We find no manifest error in the WCJ’s finding that Bradford was not guilty of Section 1208 fraud.

As to the alleged 1208.1 violation, the employer argues Bradford denied any pri- or incidents of back pains or backaches on her Post-Hire Medical Questionnaire, which she provided to the employer on March 7, 2000. The questionnaire stated “[P]lease check in the appropriate space whether or not you currently have or previously have had any of the following conditions.” A “yes” or “no” box was provided for each condition.

The WCJ found the post-hire questionnaire was impermissibly ambiguous, as applied to the circumstances of this case. He noted Bradford possessed only a ninth grade education and the questionnaire was given to her without any explanation or instructions. Bradford testified she did not recall having any back problems at the time she filled out the questionnaire. Further, back pain and backaches are not two of the thirty listed conditions which are presumed permanently partially disabling under La.R.S. 23:1378(F). The record also revealed Bradford checked “yes” to numerous questions on the questionnaire, including questions about whether she suffered from leg pain, leg soreness, asthma and headaches.

This court has held “[w]hen there is any legitimate ambiguity concerning the questionnaire or inquiries into an employee’s medical history, a court should lean favorably toward the employee in determining whether he knowlingly [sic] failed to answer the questionnaire truthfully.” Holmes v. J.E. Merit Constructors, Inc., 97-553, p. 5 (La.App. 3 Cir. 10/29/97), 702 So.2d 1126, 1131, writ denied, 97-2972 (La.2/6/98), 709 So.2d 741, quoting King v. Grand Cove Nursing Home, 93-779, p. 5 (La.App. 3 Cir. 3/9/94), 640 So.2d 348, 351, writ denied, 94-0865 (La.5/13/94), 641 So.2d 204. We find no error in the WCJ’s conclusion that a forfeiture of benefits | sunder La.R.S. 23.T208.1 was not warranted.

DISABILITY BENEFITS

I. Temporary Total Disability Benefits.

The employer argues it was error to award Bradford temporary, total disability benefits from the date of injury through January 15, 2002. It is well settled that a court of appeal may not set aside a WCJ’s finding of fact in the absence of manifest error or unless it is clearly wrong. Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94), 630 So.2d 706. When determinations are based on the credibility of witnesses, the manifest error — clearly wrong standard demands great deference to the trier of fact’s findings, for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Bruno v. Harbert Intern. Inc., 593 So.2d 357 (La.1992); Frelow v. Mills, 94-799 (La.App. 3 Cir. 12/7/94), 647 So.2d 475, writ denied, 95-65 (La.3/10/95), 650 So.2d 1180.

It is apparent from his lengthy reasons for judgment, the WCJ considered all of the medical testimony, and gave greater consideration to the testimony of Dr. Rush, the treating physician, over that of Dr. Sweeney, the employer’s choice of physician. The judge specifically noted he gave very little weight to the testimony of Dr. Sweeney, who only saw Bradford once. We also note the trial court assigned limited weight to the testimony of Dr. Gaar, the independent medical examiner. His assessment of and the weight he ascribed these witnesses’ testimony fall well within the discretion granted to the trier of fact.

The employer pointed to the testimony of Cheryl Jackson, who stated that on one occasion she observed Bradford shopping and moving in a normal fashion [nwithout any apparent difficulty. However, there was testimony from Remus Ford, who lived with Bradford, Dr. Rush, Dr. Balluze and Dr. Gaar showing Bradford had mobility problems. We find no error on the part of the workers’ compensation judge in giving greater weight to this testimony over that of Ms. Jackson.

The employer also references the testimony of Christie Moore, who testified she was working with Bradford on July 29, 2000 and could not recall any incident where Bradford injured herself. The workers’ compensation judge specifically discounted Ms. Moore’s statements for the following reasons:

The testimony of Ms. Christie Moore the Court views as somewhat suspect. Her voice was pretty shaky at the trial and as questioning continued she didn’t have much memory of anything. And, in fact, she reported that Ms. Bradford said she had a slip and fall while working at Winn Dixie and Wal-Mart. The employer subpoenaed records from Winn Dixie and Wal-Mart and found that Ms. Bradford had never been employed at either place.

After a review of the record, we cannot say the WCJ was clearly wrong in concluding Bradford was temporarily totally disabled through January 15, 2002.

II. Supplemental Earnings Benefits (SEB).

The employer contended the WCJ erred in awarding Bradford SEB from January 15, 2002, until a change in condition occurs. We disagree. Bradford established through her testimony and that of Dr. Rush she was unable to earn 90% of her former wages. The WCJ, thus, did not err in awarding SEB to Bradford until a change is demonstrated.

PENALTIES AND ATTORNEY FEES

The WCJ awarded Bradford penalties in the amount of $2,000 each for the employer’s failure to offer vocational rehabilitative services, pay indemnity benefits and pay medical benefits. The judge also awarded Bradford attorney fees of $4,000 for the employer’s failure to offer vocational rehabilitation services, $8,000 in attorney fees for its failure to pay indemnity benefits; and $8,000 in attorney fees for I!nits failure to pay medical benefits. We will address each award individually.

I. Failure to Offer Vocational Rehabilitative Services.

The employer argues the WCJ made this award of penalties and attorney fees despite an agreement by the parties that vocational rehabilitation was not an issue in this case. The record sets forth the following exchange:

THE COURT: Okay. And as I have reviewed the file and discussed briefly with both counsel before we began' — it appears that the issues in this matter are whether or not Ms. Bradford sustained an accident and an injury in the course and scope of her employment, the extent of her injury and any disabilities she may have, her entitlement — I think she was never paid any benefits.
MR. LORIO (Counsel for Employer): Correct.
THE COURT: And her entitlement to indemnity and medical benefits, penalties and attorney’s fees. And the claim was filed, you can correct me if I’m incorrect, Mr. Lorio, but as I reviewed the — the file the employer filed stating that there was no accident and/or Ms. Bradford violated Sections 23:1208 and 28:1208.1.
MR. LORIO: Yes, your Honor. And along with that claim, Judge, would be a claim by the employer for a reimbursement of costs and fees incurred to date as allowed by Section 1208.
THE COURT: What about vocational rehabilitation? Is that an issue?
MR. LORIO: There’s been no claim— no claim for vocational rehabilitation. Judge, I would just also like to note for the record that there has been a lien filed in this case by the Huey P. Long Hospital. And if we could just have a stipulation between counsel that in.the event any medical expenses were awarded the workers’ compensation lien would be covered.
MR. DALRYMPLE (Counsel for Bradford): Certainly.

Bradford’s counsel clearly did not vocalize a contrary position and did not attempt to advance this issue during trial. Therefore, it was error for the WCJ to award penalties and attorney fees for this failure. We, thus, will amend the judgment to reverse the award of $2,000 in penalties and $4,000 in attorney fees for the employer’s failure to provide vocational rehabilitation services.

In/7. Failure to Pay Disability and Medical Benefits.

The employer argues it reasonably controverted the claim and therefore penalties and attorney fees should not have been awarded. It also argues, if this Court is inclined to affirm the award of penalties and attorney fees, the amount awarded by the WCJ was “outrageous and unsupported by the record evidence.”

Penalties and attorney fees do not automatically result from an employer’s erroneous failure to pay benefits. Miles v. F.D. Shay Contractor, Inc., 626 So.2d 74 (La.App. 3 Cir.1993). The statutes only authorize such penalties and attorney fees where the employer is arbitrary, capricious, or without probable cause in terminating or refusing to institute compensation benefits. The provisions are penal in nature and must be strictly construed so that employers are not penalized for contesting a close factual question in a workers’ compensation proceeding and relying on valid defenses. Miles, 626 So.2d at 78. Nevertheless, in Stegall v. J & J Exterminating, 94 1279 (La.App. 3 Cir. 3/1/95), 651 So.2d 400, 403, we held an employer “may not proceed with an attitude of indifference to the injured worker’s situation.” An unjustified belief that an injury did not result from an accident does not excuse a failure to pay workers’ compensation benefits. Nelson v. Roadway Express, Inc., 588 So.2d 350 (La.1991). The determination of whether an employee may be awarded penalties and attorney’s fees is a question of fact which we will not disturb on appeal absent a finding of manifest error. Fontenot v. J.K. Richard Trucking, 97-220 (La.App. 3 Cir. 6/4/97), 696 So.2d 176.

We note the employer filed its fraud and forfeiture claim against Bradford before any request was made by her for disability benefits or medical expenses. From our review of the entire record, we cannot say that the WCJ manifestly erred in rejecting the employer’s contentions and ultimately finding them insufficient to reasonably controvert the employee’s subsequent claim for benefits.

hj/The employer also contends the amount awarded for penalties and attorney fees was excessive. We disagree. The penalty amounts are mandated by La.R.S. 23:1201(F); and it was not error for the WCJ to enforce this provision.

An award of attorney fees does not serve the purpose of making the claimant whole, but is intended to punish and deter particularly egregious behavior. Sharbono v. Steve Lang & Son Loggers, 97-110 (La.7/1/97), 696 So.2d 1382. A number of factors are used to determine the amount of attorney fees to be awarded, including the degree of skill and ability exercised, amount of the claim, amount recovered, and the amount of time devoted to the case. Naquin v. Uniroyal, Inc., 405 So.2d 525 (La.1981). The WCJ made the following comments concerning the amount of work performed by Bradford’s counsel:

The efforts of Mr. Dalrymple (Bradford’s counsel) are exemplary. There’s over three inches of medical evidence and depositions. He had to review, he had to attend the depositions, two depositions of his client, five medical depositions, review untold hospital records, confer with his client, gather evidence, he wrote a brief on behalf of his client which is a very good brief.

The WCJ has great discretion in awarding penalties and attorney fees, and his decision will not be disturbed unless it is clearly wrong. Dietz v. Guichard Drilling Co., 626 So.2d 79 (La.App. 3 Cir.1993). While the amount of attorney fees awarded may be on the high side, we cannot say it is an abuse of the WCJ’s vast discretion. Accordingly, we will not disturb the awards.

Bradford answered the appeal, and requests this court award additional attorney fees for the work performed by her counsel on appeal. An award for attorney fees for work done on appeal is warranted when the appeal has necessitated additional work on the attorney’s part. Hickman v. Allstate Timber Co., 94-1275 (La.App. 3 Cir. 4/5/95), 653 So.2d 154, writ denied, 95-1133 (La.6/23/95), 656 So.2d 1017; Aguillard v. Industrial Const. Co., Inc., 542 So.2d 774 (La.App. 3 Cir.1989). | ^Bradford’s attorney answered the appeal, prepared an appellate brief, and participated in oral argument. An additional award of $2,500 is reasonable under these circumstances.

MEDICAL EXPENSES

Lastly, the employer contends the WCJ erred in awarding past due medical benefits and making them payable directly to the employee rather than the medical provider. The record revealed Bradford’s attorney paid many of her past due medical expenses, which explains why the WCJ made the award payable directly to the employee. The WCJ stated as follows:

The Court awarded the reimbursement of these medical expenses to the claimant’s attorney ... The employer in this case has not shown how reimbursement of the medical expenses to Mr. Dalrymple, Ms. Bradford’s attorney, amounts for double recovery by the employee. So she is therefore entitled to all of these medical expenses.

The WCJ did not err in awarding the medical expenses directly to the employee.

DECREE

For the foregoing reasons, the portion of the judgment awarding Liddia Bradford $2,000.00 in penalties and $4,000.00 in attorney fees for the failure to provide vocational rehabilitative services is reversed. The judgment is also amended to award the employee $2,500.00 in attorney fees for the services of her counsel on appeal. The judgment is affirmed in all other respects. Costs of this appeal are assessed to the employer, Colonial Nursing Home.

AFFIRMED IN PART; REVERSED IN PART; AND AMENDED.