text:
    Richard HAVEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2363.
    District Court of Appeal of Florida, Fourth District.
    June 11, 2003.
    Carey Haughwout, Public Defender, and Tara A. Finnigan, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marrett W. Hanna, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

We affirm appellant’s grand theft conviction in all respects, however, we write to address the restitution ordered by the court. The court ordered that appellant pay the victim $3,300 in restitution. We hold that the trial court erred where the evidence presented did not support the award. The victim testified that appellant stole $1,500 worth of tools. As to the other items allegedly taken, including the Nextel phone and pager, no evidence was presented as to the value of those items. In addition, the trial court improperly included in the restitution amount, $1,400 for an unpaid loan. This loan was not the subject of the charges against appellant and did not directly or indirectly relate to the offense charged. See Glaubius v. State, 688 So.2d 913, 915 (Fla.1997).

Accordingly, we direct that the amount of restitution be reduced to $1,500. Appellant need not be present for this reduction.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED WITH DIRECTIONS.

FARMER and KLEIN, JJ., concur.


source: Caselaw Access Project

author: STEVENSON, J.

license: Public Domain

text:
    B.C., the Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D02-3949.
    District Court of Appeal of Florida, Fourth District.
    June 11, 2003.

      Kathleen K. Pena of the Law Offices of Kathleen K. Pena, P.A., Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laurel R. Wiley, Assistant Attorney General, Fort Lauderdale, for appellee.
   STEVENSON, J.

B.C., the father of a now seven-year-old son, appeals an order adjudicating his son dependent. The dependency adjudication was predicated upon incidents of domestic violence between B.C. and his former wife and the father’s alleged substance abuse. We agree that the father has exhibited less than commendable behavior, but the record does not demonstrate that the child has suffered, or is likely to suffer, adverse consequences as a result. Because the finding of dependency is not supported by competent, substantial evidence, we reverse.

The Domestic Violence

Chapter 39 defines a “dependent” child as one who is found by the court to have been abandoned, abused, or neglected by his or her parents or one who is “at substantial risk of imminent abuse, abandonment, or neglect by the parent or parents.” § 39.01(14)(a), (f), Fla. Stat. (2002). “Abuse” is defined as “any willful act or threatened act that results in any physical, mental, or sexual injury or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired.” § 39.01(2) (emphasis added). Domestic violence falls within chapter 39’s definition of “harm” if it occurs in the presence of the child. See D.H. v. Dep’t of Children & Families, 769 So.2d 424, 427 (Fla. 4th DCA 2000); see also D.D. v. Dep’t of Children & Families, 773 So.2d 615, 617-18 (Fla. 5th DCA 2000).

The petition for dependency was filed in July of 2002, and the hearing was held on August 26, 2002. Viewed in the light most favorable to sustaining the trial court’s adjudication of dependency, see In re D.J.W., 764 So.2d 825, 826 (Fla. 2d DCA 2000), the evidence established that there were two instances of domestic violence in the presence of the couple’s child, one in August 2000, following the couple’s separation, and one in December 2000. In order to support an adjudication of dependency the parent’s harmful behavior must be a present threat to the child. For example, in W.T. v. Department of Children & Families, 787 So.2d 184 (Fla. 5th DCA 2001), the trial court adjudicated the child dependent as a consequence of the acrimonious relationship between the’ child’s mother and father. At the time, the parents were in the middle of a divorce. The Fifth District reversed because (1) there was no finding that the domestic violence had any effect on the child; (2) there was no evidence that the child had ever been mistreated by the father; and (3) since the parents were now separated, the circumstances that had troubled the trial court no longer existed. See id. at 185.

Here, the instances of domestic violence in the presence of the child occurred more than a year and a half prior to the dependency petition. When asked whether there had been any incidents with her former husband during the year preceding the hearing, the former wife could only point to the former husband’s yelling on the occasions when they met to exchange custody of their son. Moreover, the only expert to testify at the hearing, Dr. Sonal Pancholi, a clinical psychologist, stated that the child was at risk for developing social, emotional, behavioral, and academic problems only if the child was exposed to continuing conflict. In the instant case, the instances of domestic violence in the presence of the child are simply too remote in time to support an adjudication of dependency.

The Substance Abuse

A parent’s alcohol and drug addictions can also provide grounds for an adjudication of dependency. Chapter 39’s definition of “harm” includes a parent’s “[cjontinued chronic and severe use of a controlled substance or alcohol” if “the child is demonstrably adversely affected by such usage.” § 39.01(30)(a), (g)2. Moreover, a parent’s addictions can support a finding of prospective abuse or neglect sufficient to support an adjudication of dependency if the evidence establishes that the addiction will affect a parent’s ability to provide and care for his or her child. See C.C. v. Dep’t of Children & Family Servs., 812 So.2d 520, 522-23 (Fla. 1st DCA 2002).

Here, there was evidence that the father has a problem with marijuana and alcohol. There was, however, no evidence that the child had actually suffered any harm or injury — physical, mental or emotional — as a consequence of the father’s alcohol and drug use. There was no testimony that the father failed to meet the child’s needs while the child was in his care, no testimony that physical harm had come to the child while in the father’s care, and no testimony that the child had been emotionally or mentally harmed by his father’s drinking and drug use.

The record also failed to support a finding of prospective abuse or neglect due to the father’s alcohol or drug use. As the court observed in In re J.L., 824 So.2d 1023, 1025 (Fla. 2d DCA 2002):

While prospective neglect or abuse can be a basis for an adjudication of dependency [citation omitted], the Department must meet the statute’s immi-nency requirement. As described in E.M.A. v. Department of Children & Families, 795 So.2d 183, 186 n. 3 (Fla. 1st DCA 2001):

The terms “prospective” and “imminent” are not defined in the statute. “ ‘[Prospective’ simply means likely to happen,” Padgett v. Department of Health & Rehabilitative Services, 577 So.2d 565, 566 n. 1 (Fla.1991), or “expected.” American Heritage Dictionary of the English Language 1051 (1973). “Imminent” encompasses a narrower time frame and means “impending” and “about to occur.” Id. at 658. Thus, while all imminent abuse or neglect is prospective, prospective abuse or neglect is merely in the future, but not necessarily about to happen.

Here, the clinical psychologist testified as to the prospect of neglect or abuse due to chronic alcohol and drug use by a parent, but not about its imminency in view of the husband’s specific condition and circumstances.

REVERSED and REMANDED.

STONE and WARNER, JJ., concur.

      . We have not overlooked the fact that, the week prior to the dependency hearing, the wife obtained a temporary domestic violence injunction after the husband demanded that the child’s babysitter permit him to see his son, despite a recently entered court order requiring supervised visitation. There was, however, no testimony from either the former wife or the child services investigator who responded to the incident that the husband was violent or threatened the wife or child.


author: OWEN, WILLIAM C., JR., Senior Judge.

text:
    INTERNATIONAL BULLION AND METAL BROKERS, INC., a New York corporation, Appellant, v. WEST POINTE LAND, LLC, a Delaware a limited liability company, Appellee.
    No. 4D02-4504.
    District Court of Appeal of Florida, Fourth District.
    June 11, 2003.
    John B. Agnetti of Hoffman, Larin, Ag-netti & Karas, P.A., Miami, for Appellant.
    John H. Pelzer and Jacqueline F. Howe of Ruden, McClosky, Smith, Schuster & Russell, P.A., Ft. Lauderdale, for Appellee.
   OWEN, WILLIAM C., JR., Senior Judge.

Appellee, West Pointe Land, L.L.C. (‘West Pointe”), the vendor under a written agreement for the purchase and sale of a parcel of unimproved real property, sued the vendee, International Bullion And Metal Brokers, Inc. (“International”), for contractual liquidated damages after the latter defaulted. International moved to compel arbitration. The trial court’s denial of that motion is the subject of this non-final appeal. We affirm.

Although the land purchase agreement out of which this suit arises does not contain any provision for arbitration, it is International’s position here, as it was below, that West Pointe is obligated to submit its claim to arbitration because it is a third party beneficiary of a separate but intertwined written agreement which does provide for arbitration.

On January 11, 2001, International contemporaneously entered into two separate, albeit related, written contracts: one was the land purchase agreement with appellee upon which this suit is based; the other was with a developer (“Higgins”), pursuant to which the latter was to construct an office and warehouse facility on the real property. The land sale agreement not only provided that the two contracts would be executed contemporaneously, but also required that Higgins join in executing the land sale agreement in order for Higgins to assist West Pointe in performing its obligation to secure certain permits. Furthermore, both the agreements were cross-defaulted, such that a default under either would, ipso facto, constitute a default under the other. Although the land sale agreement contained no arbitration clause, the construction contract did contain an arbitration clause. Finally, though Higgins joined in the execution of the land purchase agreement between appellee and International, it is significant to our decision to note that appellee did not execute or join in the construction contract between appellant and Higgins.

In May 2002, both West Pointe and Higgins were advised by appellant of its intention not to proceed with either of the agreements. Shortly thereafter, West Pointe filed the instant suit against appellant in Broward County circuit court, seeking the contractually specified liquidated damages under the land sale agreement. Higgins, however, pursuant to the arbitration provision of the construction contract, made a demand for arbitration against appellant, seeking damages for appellant’s alleged default. Appellant filed in this ease its motion to compel appellee to submit its claim to arbitration, contending (as it does here as well) that the arbitration provision of the construction contract, although not executed by appellee, was binding upon it as a third party beneficiary.

It is well established that arbitration provisions of a contract are binding on the parties to the contract, as well as on intended third party beneficiaries of the contract. See Martha A. Gottfried, Inc. v. Paulette Koch Real Estate, Inc., 778 So.2d 1089 (Fla. 4th DCA 2001); Raffa Assocs. v. Boca Raton Resort & Club, 616 So.2d 1096 (Fla. 4th DCA 1993). While it appears that appellee was little more than an incidental beneficiary of the construction contract rather than a third party beneficiary, see, Tartell v. Chera, 668 So.2d 1105 (Fla. 4th DCA 1996), we need not decide that issue. Assuming, for our decision, that appellee qualified as a third party beneficiary of the construction contract, and that the land purchase contract and the construction contract were so closely related as to be construed as a single document, see Quix Snaxx, Inc. v. Sorensen, 710 So.2d 152 (Fla. 3d DCA 1998), appellee was nonetheless precluded from the arbitration provision of the construction contract by its express language. In relevant part, section 17(c) of the construction contract provides that “[n]o arbitration arising out of or relating to this Contract shall include, by consolidation, joinder or in any other manner, an additional person or entity not a party to this Contract except by written consent containing a specific reference to this Contract signed by the Purchaser, Architect, and any other person or entity sought to be joined.” Appellee was not a party and did not sign any written consent to be joined in the arbitration process. Thus, the express preclusive language of the arbitration clause clearly evidences the intent that appellee’s claim be excluded from arbitration. See Raffa As-socs.

AFFIRMED.

GROSS and STEVENSON, JJ, concur.


author: PLEUS, J.

text:
    W.T., Mother of K.W., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D02-3154.
    District Court of Appeal of Florida, Fifth District.
    June 13, 2003.
    Dean G. Pepe of Pappas, Russell & Pepe, Daytona Beach, for Appellant.
    Thomas A. Behe, Department of Children and Families Assistant District Legal Counsel, Daytona Beach, for Appellee.
   PLEUS, J.

The mother appeals an order terminating her parental rights (TPR) and an order denying her motion to withdraw her consent to TPR. We affirm both orders. We write further to discuss the mother’s argument that she executed the written surrender under duress.

Facts

The Department of Children and Families (“DCF”) filed a petition for involuntary termination of parental rights against the mother. At the adjudicatory hearing on June 20, 2002, just as DCF was calling the mother to testify as its first witness, the following exchange took place:

Mr. Glugover: Your Honor, she’s indicated she wishes to surrender at this time.
The Court: All right. Do you have your written surrender?
Mr. Glugover: I have one, Your Honor. Your Honor, she wants to talk to her uncle, who is custodian, before she signs. The Court: We’ll take a ten-minute recess.
(Thereupon court was in recess).
The Court: All right. Mr. Glugover?
Mr. Glugover: Your Honor, my client’s read through the surrender form. She has agreed to the surrender. She spoke with Reverend Gooden, and he has allowed her to be part of the child’s life through visitation, as long as she’s clean and sober.
With that condition, is that correct, Mr. Gooden?
Mr. Gooden: That’s correct.
The Court: All right. [W.T.], raise your right hand, please.
The Court: How old are you?
The Mother: Twenty-three.
The Court: How far have you gone in school?
The Mother: Tenth grade.
The Court: Can you read, write, and understand English?
The Mother: Yes.
The Court: Have you ever been treated for any mental illness or disease?
The Mother: No.
The Court: Are you under the influence of any drugs or alcohol right now?
The Mother: No.
The Court: Has anybody promised you anything or threatened .you in any way to have you sign this surrender?
The Mother: No.
The Court: Did you read it?
The Mother: Yes.
The Court: Did you understand it?
The Mother: Yes.
The Court: Do you have any questions about it?
The Mother: No.
The Court: This surrender means your child will be free to be adopted by Reverend Gooden. This is a permanent decision. You can’t change your mind later on for any reason. Do you understand that?
The Mother: Yes.
The Court: I’ll accept the surrender as knowingly and freely entered.

On July 11, 2002, the mother wrote a letter to the judge alleging that her attorney failed to properly represent her in the adjudicatory hearing and that he gave her an ultimatum to choose between voluntarily giving up her daughter or giving up her unborn child. The court appointed the mother a new attorney, who filed a motion to withdraw and/or invalidate consent to termination of parental rights. The motion alleged that the mother signed the surrender under duress. The court granted an evidentiary hearing on this motion.

At that hearing, the mother testified that she did not want to sign the surrender but ultimately agreed to sign it because: (1) her attorney told her they were going to lose at trial and that her only choice was to sign the surrender or risk losing her unborn child because of an involuntary termination; (2) her great uncle, who intended to adopt the child, promised her visitation with the child; and (3) she was very emotional and pregnant at the time. She also criticized her attorney for being unprepared to proceed with the adjudicatory hearing. On cross-exam, the mother conceded that no one from DCF had pressured her to sign the surrender.

Two witnesses who were with the mother on the day of the adjudicatory hearing testified the mother was very emotional and was told by her attorney that she had no chance of winning, and that it would be in her best interest to sign the surrender. Both witnesses heard the uncle promise to allow the mother visitation. Both witnesses admitted that no one threatened the mother to induce her to sign the surrender.

The mother’s former attorney, Jonathan Glugover, testified he wrote the mother numerous letters asking her to contact him and provide him with the names of any witnesses. He did not have any witnesses prepared and did not know the mother was in a drug treatment program because the mother failed to respond to his repeated attempts to contact her. Glugover moved to continue the trial, but the court denied his motion.

Glugover admitted telling the mother before the hearing that she would probably lose the trial. He also admitted telling the mother it was in her best interest to surrender so that DCF could not use an involuntary termination as grounds to take away her unborn child. He denied coercing the mother or giving her an ultimatum. During this conversation, the mother asked to speak to her great uncle. The great uncle agreed to allow the mother to visit the child.

DCF recalled the mother, who admitted that she had previously testified that no one promised her anything or pressured her into signing the surrender.

The trial court denied the motion to withdraw and subsequently entered an order terminating the mother’s parental rights.

Analysis

The mother argues that she surrendered her parental rights under duress. She claims her attorney “threatened” that if she did not voluntarily surrender, they would lose the TPR trial and the resulting involuntary TPR could be used by the state to take away her unborn baby. She also claims she was coerced into surrendering by her great uncle’s promise to allow her to visit the child after he adopted him. She argues that these external pressures, coupled with the fact that she was pregnant, uneducated and emotional, all coalesced to destroy her free agency.

Section 39.464(1), Florida Statutes (1997), authorizes termination of parental rights based on properly executed documents, and provides in subsection (l)(a)2. “the surrender and consent may be withdrawn ... only after a finding by the court that the surrender and consent were obtained by fraud or duress.” In K.C. v. Adoption Services Inc., 721 So.2d 811, 812 (Fla. 4th DCA 1998), the court explained the test for proving duress in attempting to withdraw consent to TPR as follows:

Duress is:

A condition of mind produced by an improper external pressure or influence that practically destroys the free agency of a party and causes him to do and act or make a contract not of his own volition.
Herald v. Hardin, 95 Fla. 889, 116 So. 863, 864 (1928). In order to prove duress,
“it must be shown (a) that the act sought to be set aside was effected involuntarily and thus not as an exercise of free choice or will and (b) that this condition of mind was caused by some improper and coercive conduct of the opposite side.” City of Miami v. Kory, 394 So.2d 494 (Fla. 3d DCA 1981).

The mother has the burden to prove duress by clear and convincing evidence. K.C., 721 So.2d at 812. Our standard for reviewing the lower court’s decision on denying the mother’s motion to withdraw her consent to TPR is whether the court abused its discretion. In the Interest of J.R.G., 624 So.2d 273 (Fla. 2d DCA 1993).

The transcript of the adjudicatory hearing does not reveal any evidence of duress. On the contrary, it shows that the judge inquired as to whether the mother was competent and understood the terms of the surrender, to which she indicated she did. The judge also asked her whether she had been promised anything or threatened in any way to sign the surrender, to which she answered no.

Regarding the alleged pressure by the mother’s attorney, his conduct does not meet the second prong of the test because it was not improper and it was not conduct of the opposite side. Glugover admitted telling the mother before the hearing that she would probably lose. He did not have any witnesses prepared and did not know the mother was in a drug treatment program because the mother failed to respond to his repeated attempts to contact her. Glugover moved to continue the trial, but the court denied his motion. Under these circumstances, Glugover properly counseled his client about the likely outcome of the trial.

Glugover also admitted telling the mother it was in her best interest to surrender so that DCF could not use an involuntary termination as grounds to take away her unborn child. This advice was in line with section 39.806(l)(i), Florida Statutes, which allows a TPR petition to be filed “when the parental rights of the parent to a sibling have been terminated involuntarily.” As DCF notes, “[I]t is not improper and therefore not duress to threaten what one has a legal right to do.” City of Miami v. Kory, 394 So.2d 494, 498 (Fla. 3d DCA 1981) (citation omitted). Accordingly, Glugover’s advice was neither incorrect nor improper.

Nor does the great uncle’s promise satisfy the second prong of the test for duress. Even if the mother relied on the great uncle’s promise, she had the burden to prove by clear and convincing evidence that her reliance was “caused by some improper and coercive conduct of the opposite side.”' The mother’s argument that the great uncle should be considered the “opposite side” is persuasive. He was an outside force and had a vested and adversarial interest in the case, at least as it related to custody of the child.

However, there is no evidence to suggest it was coercive. To coerce means to (1) restrain or dominate by force; (2) compel to an act or choice; and (3) bring about by force or threat. Merriam-Webster Dictionary (2003), available at http://m-w.com/cgi-bin/dictionary. There was no evidence of force, threat, restraint or domination by the great uncle. His conduct cannot even be construed as compelling the mother to act when there was evidence that the mother initiated the conversation with him. Accordingly, we cannot say that the lower court abused its discretion in denying the motion to withdraw consent.

Having concluded that the consent was not executed under duress, we decline to address the mother’s remaining arguments because they were not raised below and therefore not preserved for appeal. Accordingly, we affirm the order denying motion to withdraw consent to TPR and the termination order.

AFFIRMED.

SAWAYA and TORPY, JJ., concur.

      . Glugover also noted that he gave the mother the same advice in prior proceedings involving the termination of her parental rights to her two older children. The mother took his advice and those children were adopted by the great uncle.

      . The mother argues the lower court erred in failing to warn her that the great uncle's promise was unenforceable. This argument was not raised in the motion to withdraw consent. Even if this argument had been preserved for appeal, our review of the consent . colloquy indicates that the judge adequately established that the consent was voluntary and unconditional. The mother also argues that the lower court erred in terminating parental rights without taking any testimony on the best interest of the child at an adjudicatory hearing. We do not address this argument because it was not raised below. Further, the mother waived any right to contest the sufficiency of the termination order by executing the written surrender.


author: JjDREW, J.

text:
    SUSTAINABLE FORESTS, L.L.C., Plaintiff-Appellant, v. Jack Keith HARRISON and Leisa Miller Harrison, Defendants-Appellees.
    No. 37,152-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 22, 2003.
    Donald Wilson, Bossier City, for Appellant.
    Thomas T. Townsend, Natchitoches, for Appellee.
    Before GASKINS, CARAWAY and DREW, JJ.
   JjDREW, J.

Sustainable Forests, L.L.C. (“Sustainable”), appeals a judgment recognizing its “forest road” right of passage across defendants’ land, but prohibiting members of Sustainable’s lessee, Grand Bayou South Hunting Club, from using the road. Noticing sua sponte, the peremptory exception of no right of action which had been denied by the trial court, we sustain the exception and grant Sustainable leave to amend its suit.

Facts and Procedural History

Sustainable brought this action against Jack Keith Harrison and Leisa Miller Harrison (the “Harrisons”) to prevent the Harrisons from interfering with Sustainable’s use of a road right-of-way across their rural tract of land. The Harrisons objected to the use of the road by hunters crossing their tract in Section 3 to access Sustainable’s land in Section 4. The hunters possessed hunting leases from Sustainable.

Sustainable characterized its suit as a possessory action and sought injunctive relief. Sustainable’s petition asserts as the basis of its claim, a 1963 road grant (hereinafter the “Servitude Deed”) from the Harrisons’ predecessor-in-title, Oían B. Davis, to Sustainable’s predecessor-in-title, International Paper Company (“IP”). The Servitude Deed described the property now owned by the Harrisons and identified, on an attached plat, a 12-footright-of-way. The Servitude Deed granted IP “an easement for the construction and maintenance of a forest road across” the Davis tract in Section 3.

Sustainable’s petition next asserts a 1998 deed (hereinafter the “1998 Deed”) from IP to Sustainable conveying the land in Section 4 along with 12many other tracts of land. Sustainable claimed that on the basis of these title instruments, IP and Sustainable had been in open and continuous possession of the servitude of passage across the Harrison Tract.

In response to the suit, the Harrisons filed certain exceptions, including the exception of no right of action. The Harri-sons pointed out to the court that IP’s 1998 Deed to Sustainable did not specifically describe the 12-footrighNof-way. Therefore, it was urged that the ownership right of the disputed servitude remained in IP. The ruling on the exception was deferred to the trial of the case, and at the close of trial was rejected by the trial court.

After the bench trial, the Harrisons prevailed, nevertheless, on the merits of their defense concerning the limited scope of the “forest road” created by the 1963 Servitude Deed. Citing the Civil Code articles for the interpretation of predial servitudes, the trial court found that at the time of the 1963 transaction, IP acquired the road for its timber operations in Section 4 and not for hunting leases on that property. The trial court concluded:

Therefore, the term “forest road” would not have included hunters. The only way that hunting rights could be included would be by more specific language or by acquisitive prescription.

The trial court also found that there was insufficient evidence supporting Sustainable’s alternative claim of acquisitive prescription under Civil Code Article 760 of an expanded use of the servitude across the Harrisons’ tract.

Sustainable now brings this appeal.

laDiscussion

The resolution of this dispute begins with the characterization of the right which was created by the Servitude Deed. The 1963 instrument is entitled “Grant of Roadway Easement.” It grants to IP “an easement for the construction and maintenance of a forest road across” the land of Harrison’s predecessor-in-title, Davis. The agreement further twice references the right as a right-of-way. The 1963 instrument additionally provided that a one-year period of non-use, instead of the usual ten-year prescription of non-use, would result in the extinction of the servitude.

Most significantly and overlooked by the parties and the trial court, the Servitude Deed does not describe a dominant estate; it only describes a servient estate. There is nothing in the public records describing IP’s land in Section 4 as the dominant estate. From the descriptions of Sustainable’s land acquired from IP and the Harrisons’ tract as set forth in the petition, and as shown on the plat exhibit in the record, the IP/Sustainable tract is not contiguous to the Davis/Harrison tract. Therefore, although contiguity is not necessary for the creation of a predial servitude (La.C.C. art. 648), its absence in this case may explain why there is no dominant tract described in the 1963 instrument.

In the absence of a description of a dominant estate in the title instrument, this conventional right of passage and access in favor of IP falls within the category of personal servitudes, which the Civil Code defines as a “right of use.” La. C.C. art. 639, et seq. In 1963, when the servitude was created, such right of use, although not expressly addressed in the Civil Code, had been recognized in the jurisprudence as a real right. Simoneaux v. Lebermuth & Israel Planting Co., 155 La. 689, 99 So. 531 (1924). The right of use may confer only an advantage that may be established by a predial servitude, such as this right of passage. La. C.C. art. 640. The right of use is a transferable right which the initial grantee may convey to others. La. C.C. art. 643. Nevertheless, the right of use is not a predial servitude because of the absence of a dominant estate, and the distinction between these separate rights is critical in this case.

The 1998 Deed from IP to Sustainable describes large tracts of land, including a large tract in Section 4, which apparently is the land to which the disputed road provides access. The 1998 Deed, however, does not describe IP’s right to the personal servitude created in the 1963 Servitude Deed. For this reason, Harrison pled the exception of no right of action in the trial court. The trial court denied the exception, however, apparently in reliance upon the principle set forth in Civil Code Article 650, which is applicable to predial servi-tudes. Article 650 provides, in pertinent part:

A predial servitude is inseparable from the dominant estate and passes with it. The right of using the servitude cannot be alienated or encumbered separately from the dominant estate.

Under Article 650, since a prior recorded grant of a predial servitude for a right of passage evidences the dominant estate status of a tract listed therein, the predial servitude’s benefit is an accessory and passes with the sale of the dominant estate without mention of the prior grant of the predial right of passage. Nevertheless, when the right of passage is granted as a right of use to a juridical person, there is no dominant estate from which the principle of Article 650 may thereafter operate. The person who owns the right of use may convey that right by a deed identifying either the initial Indeed of origin of the right of use or a description of the land burdened by the right of use, which in this case would be a description of the 12-foot portion of the Harrisons’ tract.

In this case, IP has not conveyed its right of use created by the 1963 Servitude Deed to Sustainable. Sustainable’s assertion of those two recorded instruments as the basis for its suit therefore demonstrates its lack of right to assert the right of passage across the Harrisons’ tract. The exception of no right of action assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case has a legal interest in the subject matter of the litigation. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Commission, 94-2015 (La.11/30/94), 646 So.2d 885, 888. Pursuant to La. C.C.P. arts. 927 and 2164, we choose to notice the peremptory exception, which was rejected by the trial court, and render judgment in this matter on that basis. Moreover, in accordance with La. C.C.P. art. 934, since the grounds for Sustainable’s no right of action may be removable depending upon the scope of Sustainable’s purchase agreement with IP, our judgment sustaining the exception shall allow Sustainable thirty days from the finality of this judgment to amend its suit and allege its title to the right of use.

Finally, while Sustainable has characterized this action as a possessory action in which title is normally not the issue (La.C.C.P. art. 3661), such characterization does not change our view regarding Sustainable’s lack of a legal interest in the subject matter of this litigation. | fi The jurisprudence holds that even though the grantee of a servitude or other real right possesses both for himself and the landowner, he also possesses in another sense for himself alone and may bring a possessory action against the landowner from whose ownership his right is derived. Parkway Development Corp. v. City of Shreveport, 342 So.2d 151 (La.1977); Faust v. Mitchell Energy Corp., 437 So.2d 339 (La.App. 2d Cir.1983). This is somewhat of a different slant upon the more traditional possessory action which pits a possessor of land against another possessor or record title holder of the land. To the contrary, this suit centers on the scope of the original 1963 title instrument. Moreover, the record does not show that Sustainable’s intermittent use of the road for over one year prior to this suit was sufficient adverse possession to the Harri-sons, who also had the use of the road during the same period. Sustainable’s possessory action is against the admitted landowner whose tract is burdened by the asserted servitude as alleged in its petition and therefore rests upon the 1963 Servitude Deed and its 1998 Deed from IP. Finding that the 1998 Deed did not convey the disputed right of use, we hereby grant the peremptory exception of no right of action subject to Sustainable’s right to amend under La. C.C.P. art. 934.

DECREE

With costs of this appeal assessed equally to both parties, the peremptory exception of no right of action is GRANTED, and this matter is REMANDED for Sustainable’s right to amend.

      . The 1998 deed is actually conveyed by another IP-related entity, IP Timberlands Operating Company, Ltd., which acquired the tract from IP. We will continue to reference both entities throughout as “IP.''

      . Of course, we are aware that Sustainable and IP apparently have a close connexity, as reflected by the 1998 lease between Sustainable and the hunting club, which is written on paper bearing IP's letterhead. Nevertheless, Sustainable and IP are still separate juridical entities.


author: I JAMES L. CANNELLA, Judge.

text:
    OCHSNER HEALTH PLAN, INC. v. ADVANCED MEDICAL SYSTEMS, INC. and Keyclick Outsourcing, Inc.
    No. 03-CA-118.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 28, 2003.
    Rehearing Denied June 19, 2003.

      Taggart, Morton, Ogden, Staub, Rouge-lot & O’Brien, L.L.C., Perry R. Staub, Jr., Michael W. Hill, New Orleans, LA, for Appellant.
    Frank M. Buck, Jr., New Orleans, LA, for Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA and MARION F. EDWARDS.
   I JAMES L. CANNELLA, Judge.

Plaintiff, Ochsner Health Plan, Inc. (OHP), appeals from the trial court judgment denying its request for a permanent injunction against the Defendant, KeyClick Outsourcing, Inc. (KeyClick), to stop Key-Click from continuing arbitration proceedings against Ochsner. For the reasons which follow, we affirm.

Steven Greenstein, president of Advanced Medical Systems, Inc. (AMS), provided data processing services to OHP at varying rates. AMS was looking for a guaranteed volume of business and OHP was looking for a better rate. The parties entered into a contract on or about July 17, 2000 which provided that AMS would transfer data from medical claims submitted to OHP into an electronic format that could then be downloaded into OHP’s computer system. The contract provided the compensation plan for the work AMS was doing for OHP and contained an assignment clause that provided:

Contractor shall not assign or transfer this Agreement or any interest or obligation herein by operation of law or otherwise without the prior written consent of OHP, provided that Contractor may assign the Agreement to any successor entity.

The contract also contained an arbitration clause in the event of a dispute or controversy between the parties.

UNear the end of 2000, Greenstein testified that he became aware that there were other companies with the same or similar name as AMS. So, he decided to change the name of the company from AMS to KeyClick. Greenstein was the sole shareholder of KeyClick. In January of 2001, Greenstein notified all of his AMS customers that he had changed the name of the company to KeyClick. The physical location of the business did not change, the owner/manager did not change, the process did not change and the billing rates did not change. Greenstein testified that in his mind it was only a name change.

OHP did not dispute that it received the name change notification and it made no inquiry regarding the notification. OHP changed the name of the company in its computer and all further billing, invoices, checks and correspondence referenced KeyClick. In some exhibits, it was shown that OHP referred to the OHP AMS agreement as the contract “between OHP and KeyClick .” OHP continued to do business with KeyClick under the terms of the OHP-AMS contract and attempted to invoke various contractual provisions regarding the payment schedule that operated in OHP’s favor. It was at this point, when OHP reduced payments based on its interpretation of the contractual provisions, that KeyClick invoked the arbitration clause. The arbitration process began in the early part of 2002. Then, in June of 2002 OHP began to question KeyClick’s right to force arbitration because “Key-Click” was not a signatory to the contract containing the arbitration clause. On July 3, 2002, OHP filed the instant suit to stop the arbitration proceedings through a pleading entitled Original Petition for Declaratory and Injunctive Relief.

Trial was held on August 22, 2002, following which the trial judge ruled in favor of KeyClick. Essentially, the trial court found that OHP was aware of the |4“name change” or transfer of business from AMS to KeyClick and it voiced no objection. Moreover, OHP continued to do business with KeyClick, referencing KeyClick on invoices, checks and letters, referred to the OHP AMS agreement as the contract between “OHP and KeyCliek,” and, most importantly, utilizing the provisions of the agreement that worked in OHP’s favor. In considered reasons for judgment, the trial court stated, in pertinent part:

The testimony was that perhaps the principle of A.M.S. thought that this was merely a name change. Perhaps he says that he thought that Keyclick, quote unquote, “absorbed A.M.S.” Actually it appears that that is an accurate layman’s term, that is, that Keyclick absorbed A.M.S. By that, basically the intent of this apparently was it was a tax free transfer of all assets.
Upon close questioning the principle of both entities testified unequivocally that it is his understanding that all assets and liabilities of A.M.S. are now assets and liabilities of Keyclick; that as of the time Keyclick began operation A.M.S. ceased operation, A.M.S. became an inactive corporation, all though [sic] of course, it was still listed active by the Secretary of State and not dissolved, as frequently occurs.
Very importantly, on August 6th of '01 Barbara Crowley on behalf of O.H.P. signed a purchase order number B10083, which was intended, it states “As per our signed agreement with Key-click, our payment terms are net 30 days. Invoices must reference this blanket P.O. number B10083. All invoices are to be reviewed by Diane Howarth. To save administration cost, vendor is instructed to bill O.H.P. on a weekly basis.”
Above the same purchase order number B10083 states, reference ACA2000145, which is the contract in question, period of performance 7/1/01 to 7/31/02.
Now addressing the argument of O.H.P., that clause 5.5 of the contract which states, quote, “assignment by contractor. Contractor shall not assign or transfer this agreement or any interest or obligation herein by operation of law or otherwise without the prior written consent of O.H.P., provided that the contractor may assign this agreement to any successor entity.”
This says two things: One, no assignment or transfer without the prior written consent of O.H.P. O.H.P. [KeyCliek] in effect contends every time it [OHP] signed an invoice and paid thereon, and that was an acceptance of the contract. When they signed the first invoice after they had made the computer changes to | sKeyclick, they in essence were signing a prior written consent that Keyclick would continue to operate under the original contract, and thereafter, through the purchase order.
Two, is Keyclick the successor corporation of A.M.S.? The testimony is that, and the documentation reflects that the intent of this transfer was in deed a seemless [sic] offer of 100 percent of the assets and liabilities of A.M.S. to Key-click. That’s the only way you get a tax free transfer, and therefore the evidence is belied by noting that A.M.S. stopped operating when Keyclick started operating, so Keyclick is the successor corporation to A.M.S. A.M.S. stopped, Key-click started.
Most importantly however, O.H.P. when it engaged in its accounting resolution, internal accounting resolution of its disagreement with Keyclick, used the contract to operate to the detriment of Keyclick.
Thereafter O.H.P. is estopped from denying the terms and conditions of the contract, including the arbitration clause, because O.H.P. used the very terms and conditions of the contract to engage in self help to the detriment of Keyclick, forcing Keyclick into a litigation posture.
Therefore the Court finds that the contract continued to properly operate, the contract was accepted and renewed by O.H.P. after the change to Keyclick, and O.H.P. used the contract to the detriment of Keyclick to its own benefit, and the arbitration clause applies.

Based on the above reasons, the trial court rendered judgment on September 3, 2002 denying the petition for injunctive relief and finding the petition for declaratory judgment moot. It is from this judgment that OHP appeals.

On appeal OHP assigns two errors. First, OHP argues that the trial court erred in permitting KeyCliek to enforce the arbitration clause of the OHP AMS agreement because KeyCliek was not a signatory to the agreement and had no rights under the agreement. OHP also argues that the trial court erred in finding that equitable estoppel applied, preventing OHP from contesting KeyClick’s right to enforce the arbitration clause.

KeyCliek counters that the trial court judgment was correct on several grounds. First, the change from AMS to KeyCliek was, in actuality, nothing more than a name change. The companies both had the same president, location, |fiequipment, employees, and duties. The only difference between the two was the name. Second, OHP consented to the transfer of the contractual obligations from AMS to Key-Click by changing the name in their computer to KeyCliek, invoicing KeyCliek, referring to the contractual agreement as that between OHP and KeyCliek and taking advantage of the provisions of the agreement that benefited OHP. Third, the OHP-AMS contract expressly allowed the assignment of the contract by AMS to a “successor entity”, which KeyCliek was. KeyCliek took over all the obligations, duties, assets and liabilities of AMS and when KeyCliek commenced operation, AMS ceased operation. Finally, in the alternative, OHP is estopped from denying the terms of the arbitration clause because OHP relied on provisions of the contractual agreement that worked in its favor against KeyCliek and, therefore, by accepting and relying on the contractual agreement to its benefit, it is estopped from contesting other provisions of the agreement that it doesn’t like.

After considering the record, briefs and argument in this case, we find no error in the trial court ruling. Based on the facts, as found by the trial court, OHP expressly consented in writing to the amendment of the agreement between them, changing the “Contractor” from AMS to KeyCliek, as provided in paragraph 5.15 of the agreement. There were several examples of this consent, but, the most clear was the signed purchase order of August 6, 2001, where Barbara Crowley, on behalf of OHP, signed the purchase order which made reference to “our signed agreement with Key-Click” and was numbered B10083, with the reference ACA2000145, which is the contract in question. Additionally, OHP’s consent or acquiescence in maintaining the agreement with KeyCliek instead of AMS was evidenced by its continuing to do business with KeyCliek without objection, and its reliance on the contractual provisions that benefited it. The two companies, AMS and KeyCliek, were so closely related, owned by the same person, run by the same person, in the same location, with the same equipment, by the same |7employees, with one commencing at the same time the other terminated, that we find that one was in reality the alter ego of the other and they were essentially the same company with only a name change.

OHP seems to rely, in support of its position that KeyCliek cannot enforce the arbitration clause of the agreement, on the lack of a written assignment of the OHP-AMS agreement to KeyCliek. However, for the reasons stated above, we do not find that dispositive of KeyClick’s rights. Rather, as found by the trial court, Key-Click has become the “Contractor” in the agreement, a party to the agreement by the express written consent of OHP.

Accordingly, for the reasons stated above, we find no error in the trial court ruling denying the injunctive relief and finding the petition for declaratory judgment moot. The judgment is affirmed with costs of appeal to be paid by OHP.

AFFIRMED.

      . Greenstein testified that he wanted the AMS name changed so he contacted his father in Florida, who handles the legal work for him. His father accomplished the “name change” by creating a second corporation named Key-Click. The trial court expressly did not make credibility determinations, but it is noted, even though contested, that transfer documents from one corporation to the other of the OHP-AMS contract were belatedly produced.

      . AMS and KeyCliek were separately incorporated companies. However, because of the extensive intermingling of all aspects of each company, their separate status was subject to being pierced.


author:
| .GUIDRY, J.
      | FITZSIMMONS, Judge, I,PETTIGREW, J.,

text:
    Ronald J. BOQUET, Sr. v. TETRA TECHNOLOGIES, INC. and Travelers Property Casualty Corporation.
    No. 2002 CA 0937.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.
    Rehearing Denied April 22, 2003.

      Joseph J. Weigand, Jr., Houma, Counsel for Plaintiff/Appellee Ronald J. Boquet, Sr.
    Patricia McKay Clotiaux, Metairie, Counsel for Defendant/Appellant Tetra Technologies, Inc.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   | .GUIDRY, J.

In this workers’ compensation case, Tetra Technologies, Inc. and Travelers Property Casualty Corporation (collectively “Tetra”) appeal the Office of Workers’ Compensation (OWC) judgment finding that Ronald J. Boquet Sr. is entitled to permanent total disability benefits. For the reasons that follow, we reverse.

FACTS AND PROCEDURAL HISTORY

Ronald J. Boquet Sr. worked for Tetra Technologies, Inc., and was injured in a work-related accident on April 2, 1990. Thereafter, Tetra Technologies, Inc. paid Mr. Boquet weekly disability benefits at the rate of $276.00 for temporary total disability through November 11, 1994. Beginning on December 14, 1994, Tetra Technologies, Inc. paid Mr. Boquet monthly disability benefits at the rate of $835.75 for permanent partial disability. Tetra Technologies, Inc. terminated its payment of disability benefits on April 28, 2000, when Mr. Boquet had received the maximum five hundred twenty weeks of benefits.

On May 23, 2000, Mr. Boquet filed a disputed claim for compensation with the OWC. Thereafter, on March 16, 2001, vocational rehabilitation was initiated. A trial before the OWC was held on January 7, 2002. In a judgment signed on February 4, 2002, the workers’ compensation judge rendered judgment in favor of Mr. Boquet and ordered that he was entitled to permanent total disability benefits.

ASSIGNMENTS OF ERROR

Tetra now appeals from this judgment and asserts the following assignments of error:

1. The workers’ compensation judge erred in applying the “Totality of Factors” standard to determine permanent total disability status.
|a2. The workers’ compensation judge erred in his determination that Mr. Bo-quet was not provided vocational rehabilitation as provided for in the Workers’ Compensation Act.
3. The workers’ compensation judge erred in awarding court costs.

Additionally, Ronald J. Boquet Sr. answered the appeal, seeking attorney’s fees from Tetra, alleging Tetra’s appeal has no basis in fact or in law.

DISCUSSION

Permanent Total Disability Standard

Because Mr. Boquet is not employed, the controlling statutory provision is La. R.S. 23:1221(2)(c) which provides:

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

The Louisiana Supreme Court, in interpreting the above statutory provision, has recently recognized that the clear and convincing standard in the workers’ compensation context is an intermediate standard, falling somewhere between the ordinary preponderance of the evidence civil standard and the beyond a reasonable doubt criminal standard. Comeaux v. City of Crowley, 01-0032, pp. 8-9 (La.7/3/01), 793 So.2d 1215, 1220. As such, to prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, in other words, much more probable than not. McCray v. Delta Industries, Inc. 00-1694, p. 3 (La.App. 1st Cir.9/28/01), 809 So.2d 265, 268.

l4In the instant case, in his reasons for judgment, the workers’ compensation judge stated that he relied on the totality of factors standard in finding Mr. Boquet permanently totally disabled. Thus, the workers’ compensation judge committed legal error by applying an incorrect legal standard, and our review will be de novo. Taylor v. BASF Wyandotte, 01-0328, pp. 4-5 (La.App. 1st Cir.9/28/01), 805 So.2d 235, 238, writ denied, 01-2835 (La.1/4/02), 805 So.2d 206.

Analysis

Permanent Total Disability Status

This court has previously stated, in regard to determining whether a claimant has met his burden of proving disability by clear and convincing evidence, that the claimant must introduce objective medical evidence of the disabling injury. McCray, 00-1694 at 4, 809 So.2d at 269. Disability can be proven by medical and lay testimony. The trial court must weigh all the evidence, medical and lay, in order to determine if the plaintiff has met his burden. McCray, 00-1694 at 3, 809 So.2d at 269.

In the instant case, Mr. Bouquet introduced the deposition testimony and medical records of his treating physicians in support of his claim for permanent total disability benefits. At the time of trial, Mr. Boquet was still under the care of Dr. Craig Walker, a cardiologist, for venuous thrombosis and pulmonary emboli; Dr. David Weir, a neurologist, for seizures; and Dr. Don Carlos, a psychiatrist, for depression. Additionally, Mr. Boquet was treated by Dr. Conrad Speece, an osteopathic physician, for balance problems. All of the doctors’ deposition testimony and medical records indicate that plaintiff’s medical conditions are related to the 1990 work injury.

Through medical records and deposition testimony, each doctor detailed the status of Mr. Boquet’s related medical conditions. First, Dr. Weir stated that the last time he saw Mr. Boquet was in January of 2001 and since that time, when Mr. |5Boquet’s medication dosage was raised, he had no knowledge of Mr. Boquet having any more seizures. Further, Dr. Walker, who at the time of his deposition last saw Mr. Boquet in September of 2001, noted that Mr. Bo-quet had not had any further pulmonary emboli, though he was at a greater risk for the rest of his life for that condition and deep venuous thrombosis. Finally, Dr. Carlos also stated that Mr. Boquet’s depression was in remission, though he still needed to take medication.

Ultimately, each of Mr. Boquet’s treating physicians opined that Mr. Boquet is capable of performing sedentary work, with certain restrictions, if appropriately trained. However, Mr. Boquet argues, that Dr. Weir, despite his deposition testimony that from a neurological standpoint Mr. Boquet is capable of performing sedentary employment, did not approve Mr. Boquet to perform any of the job descriptions submitted by the vocational rehabilitation counselor, Katherine Harrison. The record indicates, in a follow up letter to Katherine Harrison, dated January 3, 2001, Dr. Weir stated: “The jobs described in the job description sent to me in September may well be within Mr. Boquet’s physical abilities, but, due to the nature of his injury, I do not believe emotionally or mentally he is capable of sustaining such employment.”

In contravention to this statement, Dr. Carlos, the psychiatrist treating Mr. Bo-quet for depression, approved each of those same job positions, from a psychiatric standpoint. Because we find that Dr. Carlos was in a better position to determine Mr. Boquet’s emotional capabilities, we accord little weight to Dr. Weir’s determination. Such an opinion is outside Dr. Weir’s area of expertise in neurology and not supported by facts contained in the record. See Glass v. (Magnolia School, Inc., 01-1209, p. 18 (La.App. 5 Cir. 3/13/02), 815 So.2d 143, 153, writ denied, 02-1048 (La.6/7/02), 818 So.2d 776.

In addition to the above-mentioned doctors, Mr. Boquet also saw Dr. Kevin J. Bianchini, a clinical psychologist/neuro-psychologist, who evaluated Mr. Boquet and performed various tests to determine his cognitive abilities. Dr. Bianchini diagnosed Mr. Boquet with a cognitive disorder secondary to brain damage. However, Dr. Bianchini found that from the tests he performed, Mr. Boquet was functioning at a level that would allow him to perform sedentary, gainful employment, aside from high cognitive demands or cognition that affected safety. Therefore, Dr. Bianchini opined that Mr. Boquet was capable of gainful employment from a neuro-psycho-logical and psychological standpoint, and recommended neurological rehabilitation to help Mr. Boquet recognize his strengths and weaknesses, develop compensation strategies, and work on function issues. Dr. Bianchini further stated that, while not the best way to handle the situation, Mr. Boquet was capable of some form of employment, even without the recommended neurological rehabilitation.

While we recognize that Mr. Boquet has some serious medical conditions, which enable him to receive social security and require him to walk with a cane and take twelve medications daily, we find that all of his physicians have determined that from both a physical and psychological/psychiatric standpoint, Mr. Boquet is capable of performing sedentary work, with some restrictions, if appropriately trained.

Additionally, Katherine Harrison, the vocational rehabilitation counselor hired by Tetra to provide vocational services to Mr. Boquet, determined after meeting with Mr. Boquet, obtaining employment, education and medical information, reviewing records and depositions of Mr. Boquet’s physicians, administering vocational testing, and conducting labor market surveys, that Mr. 17Boquet was capable of sedentary employment that provided on-the-job training. Ms. Harrison conducted several labor market surveys and forwarded her findings to Mr. Boquet, along with job descriptions and a request that he apply for those positions. After Mr. Boquet applied for these positions, Ms. Harrison followed up with the potential employers and forwarded some of the job descriptions to Dr. Weir and Dr. Carlos for their approval. As stated previously, Dr. Carlos indicated that Mr. Boquet was capable of performing those positions from a psychiatric standpoint and Dr. Weir indicated that Mr. Boquet may well be physically capable of performing those jobs.

Mr. Boquet attempts to refute Ms. Harrison’s findings by relying on the testimony of Allen Crane, a rehabilitation counsel- or called by Mr. Boquet at trial. Mr. Crane testified that Mr. Boquet has some substantial vocational barriers to employment, and without some rehabilitation as recommended by Dr. Bianehini and substantial vocational services, those vocational barriers would make it unlikely that he could secure employment. However, this opinion does not express that Mr. Boquet is physically unable to engage in any employment, but rather goes to the amount of rehabilitation that he believes is necessary to enable Mr. Boquet to secure employment. Therefore, based on the facts and law as outlined above, we do not find that Mr. Boquet proved by clear and convincing evidence that he is physically unable to engage in any employment and therefore is not entitled to permanent total disability benefits.

Further, based on our decision as outlined above, we find Mr. Boquet’s claim for attorney’s fees to be without merit.

Rehabilitation

On appeal, both parties discuss the issue of whether Mr. Boquet was provided with vocational rehabilitation as provided for in the Workers’ Compensation Act. However, the evidence in the record is insufficient to decide 1 «this issue. Therefore, a remand is required for further development of the record on this limited issue.

Costs

Additionally, we do not address Tetra’s assignment of error regarding court costs, as that issue was the subject of a separate judgment, signed on March 15, 2002. Said judgment was appealed from separately, and is not currently before this court.

CONCLUSION

For the foregoing reasons, we reverse the judgment of the OWC and remand this matter for further proceedings regarding the issue of rehabilitation. The costs of this appeal are to be borne equally-by the appellee, Ronald J. Boquet Sr., and appellants, Tetra Technologies, Inc. and Travelers Property Casualty Corporation.

REVERSED AND REMANDED WITH INSTRUCTIONS.

FITZSIMMONS, J., concurs and assigns reasons.

PETTIGREW, J., dissents and assigns reasons.

| FITZSIMMONS, Judge,

concurring with reasons.

I agree with the reversal of the trial court judgment on the issue of total permanent disability; however, I would respectfully remand the case to the trial court for consideration of rehabilitation and the extent of Mr. Boquet’s disability.

I,PETTIGREW, J.,

dissenting.

I must respectfully dissent from the majority’s decision to reverse the workers’ compensation judge’s finding that appellee was entitled to permanent total disability benefits. After considering all the medical injuries and problems of appellee and how they interrelate with one another, I am of the opinion that appellee proved by clear and convincing evidence that he is permanently and totally disabled. I do, however, agree with the majority’s remand for further proceedings to determine the necessary rehabilitation the claimant is entitled to as recommended by the employer’s clinical psychologist/neuro-psychologist. La. R.S. 28:1226.

      . According to the payment history submitted by Tetra Technologies, Inc., these payments are coded as permanent partial disability. However, in its answer to Mr. Boquet's disputed claim, Tetra refers to the benefits as supplemental earnings benefits.

      . Some of the restrictions include avoiding heights, heavy machinery, driving, prolonged standing, and bleeding and dehydration risks.

      . The record does not contain any information as to Dr. Weir’s credentials. At his deposition, he was accepted as an expert in neurology, and no curriculum vitae was presented.


author: liKOSTELKA, Judge Pro Tempore. hPER CURIAM.

text:
    Alma M. JONES, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, Defendant-Appellee.
    No. 37,167-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2003.
    Opinion on Rehearing May 16, 2003.

      Alex S. Lyons, Counsel for Appellant.
    Lunn, Irion, Salley, Carlisle & Gardner By: Walter S. Salley, J. Martin Lattier, Shreveport, Counsel for Appellee.
    Before GASKINS, MOORE and KOSTELKA (Pro Tempore), JJ.
   liKOSTELKA, Judge Pro Tempore.

This appeal by claimant Alma Jones (“Jones”) arises from a judgment awarding her temporary total disability benefits (“TTD”) and supplemental earnings benefits (“SEB”) but reducing the award by amounts paid under a disability plan. The employer, General Motors Corporation (“GM”), has answered the appeal and urges that the Workers’ Compensation Judge (“WCJ”) erred in awarding Jones additional benefits. We amend and affirm.

FACTS

Jones commenced employment with GM at its Shreveport truck assembly plant in 1983. She had various duties but primarily worked as a cab assembly machine operator and described her work as “men’s jobs ... hard jobs.” In her deposition, Jones said that her job as an assembly machine operator required her to lift eight “light parts” and put them into the machine before the machine moved the parts to a robot.

GM had a policy requiring employees to report work-related injuries and between 1983 and 1999, Jones reported approximately thirty-nine different injuries. Among these injuries were some serious events including a neck and back injury and carpal tunnel syndrome. Jones also reported more minor events such as muscle strains. The more serious of her injuries restricted Jones from working with power tools and from lifting, bending and pushing.

On January 15,1999, Jones, who is right handed, was working next to an assembly machine when a lever on the machine struck her right thumb. Orthopedic surgeon, Dr. John Knight (“Dr.Knight”), performed surgery on Jones’ thumb which required partial amputation.

12Jones thereafter received TTD benefits of $367.00 per week from February 1, 1999 through March 28, 1999, and permanent partial disability benefits from April 5, 1999 through May 21, 1999. She also received medical payments for reconstructive surgery for her thumb. Jones further sought and received Social Security disability benefits from February 1, 1999 through March 22, 2000.

In addition, Jones received payments from a sickness and accident policy entirely funded by GM. On January 25, 1999, Jones signed the following agreement:

REIMBURSEMENT AGREEMENT SICKNESS AND ACCIDENT AND EXTENDED DISABILITY BENEFITS
AGREEMENT RE: Sickness and Accident and Extended Disability Benefit payments covering a period or periods for which Workers Compensation may later be paid.
In consideration of Sickness and Accident and Extended Disability Benefits paid to me under the General Motors Life and Disability Benefits Program (“the Program”), and pursuant to the provisions of the Program, I, the undersigned, for myself, my heirs, assignees, executors, administrators, or personal representatives, hereby agree to repay to my employer a sum equal to the overpayment of Program benefits which is equal to the lesser of the total of any Workers Compensation benefits for loss of wages which becomes due me as the result of voluntary agreement or by award for the period or periods that such Sickness and Accident and Extended Disability Benefit payments were made, or the total of such Sickness and Accident and Extended Disability Benefit payments. I understand that under the General Motors Life and Disability Benefits Program, the scheduled amount of Sickness and Accident and Extended Disability Benefits, for such period or periods, should be reduced by any weekly Workers Compensation benefits to which I am entitled, and if such repayment is not made within sixty days after request is made by the Corporation for repayment thereof, the amount may be deducted, to the extent allowed by applicable law, by the ^Corporation from any amounts, including, but not limited to, wages thereafter payable to me.

Jones underwent a functional capacity evaluation (“FCE”). The lengthy evaluation concluded that Jones was capable of returning to light work (lifting ten pounds frequently, twenty pounds occasionally, and negligible lifting constantly) so long as she was not required to perform with her right hand tasks requiring repetitive, forceful grasping, pinching, or fine fingering. The evaluator observed that Jones made good physical effort during the test but exhibited “at least some degree” of symptom magnification. With regard to symptom magnification, the evaluator stated:

In describing symptom magnification, I am by no means implying intent. Rather, I am simply stating that Ms. Jones can do more than she currently states or perceives. While her subjective reports should not be disregarded, they should be considered within the context of symptom magnification findings.

On March 24, 1999, Jones underwent an impairment and disability evaluation, and the evaluator concluded that she had a total impairment of her right thumb of 86 percent, which is equal to' an 8 percent whole-person impairment.

Dr. Knight released Jones to return to work on March 29, 1999. The doctor’s release specified:

Ms. Jones may return to her regular job. If this job is not available one must be found the (sic) fits within the restrictions outlined in the FCE.

Jones testified that she returned to the GM plant after her release to work sometime near the end of March, but “the plant doctor” told her that GM had no job which met her restrictions. Jones testified that from that Rpoint forward, GM did not pay her workers’ compensation benefits, but instead paid her sickness and accident benefits under the GM-funded disability plan.

Although Dr. Knight’s records reflect no complaints by Jones at her last visit, Jones testified that her hand was still swollen and hurting and that she did not like Dr. Knight’s service because she believed he spent too little time evaluating and treating her problem and had released her too soon. She elected to see Dr. John Ferrell (“Dr.Ferrell”), another orthopedist, in April 1999. GM refused to pay for this additional evaluation and treatment. Dr. Ferrell’s records reflect findings of painful and reduced motion in Jones’ right thumb. His orders were for Jones to undergo three weeks of physical therapy and not to use her right hand. In late April, Dr. Ferrell maintained his order that Jones not use her right hand and indicated that she was to undergo partial nail removal surgery on May 12, 1999, which Dr. Ferrell performed.

On May 20, 1999, Dr. Ferrell again examined Jones and recommended that she undergo another FCE. His records indicate that he allowed Jones to return to work with limited use of her right hand and thumb on June 7, 1999. In the absence of a second FCE, Dr. Ferrell indicated that Jones’ old FCE “... would be fairly similar to her restrictions at this point, as well as restrictions of pinching and pulling....” Dr. Ferrell executed a release for Jones to return to light work on that day. At a visit on July 30, 1999, Dr. Ferrell noted that “[W]e need to look at her old Functional Capacity Evaluation. She can’t really grip or pinch with her | fright hand and can mainly do left hand dominant work.” The doctor noted these restrictions in another report that day and also noted that the restrictions were permanent.

On July 28, 1999, Jones filed a disputed claim for compensation with the Office of Workers’ Compensation (“OWC”). GM answered this claim and asserted its right to reimbursement or reduction of benefits per La. R.S. 23:1206 and La. R.S. 23:1225.

Jones was involved in an auto accident on September 4, 1999 that aggravated the pain in her thumb. On September 23, 1999, Dr. Ferrell observed a bone spur in Jones’ thumb that he was going to treat conservatively but which, he speculated, might require surgery. In October 1999, Dr. Ferrell again observed the bone spur and indicated that he felt the spur was causing Jones’ pain and may need excision. He specified in his report of November 8, 1999 that Jones was permanently restricted from doing any “... real machine operating jobs, ...” but released her to return to work.

In December, 1999, Jones underwent a second FCE with Dr. William Fox (“Dr. Fox”) who reported that the results of his grip test were invalid due to inappropriate findings indicating “... that the patient is not giving full effort.” Dr. Fox wrote:

I feel that the only restriction she should have due to this injury would be no constant or frequent fine manipulation and dexterity but can occasionally (sic). She should not use (sic) of power tools.

On or about February 10, 2000, Jones returned to work at GM at the same job but under some restrictions. Jones testified that the lifting required |fiin her job was too heavy for her and was outside of these restrictions and that she was again working with a machine. GM records reflect that Jones immediately reported difficulty doing her job and on February 14, 2000 called the plant doctor and said that she was going to have a nervous breakdown (Jones denied that she made any such statement). She testified that due to working under these conditions, she injured her back, shoulder and arm on February 15, 2000 and was forced to take sick leave again while she underwent therapy. She made a compensation claim for these injuries on February 26, 2002 as part of the instant case, but the WCJ found that this claim was filed too late. Jones did not appeal that ruling.

Because Jones had received Social Security disability payments in addition to disability payments under the GM plan, GM demanded repayment of overpayments.

In October 2001, Jones moved to Arlington, Texas, and commenced working for GM at its plant in that location. At trial, she testified that she works in various offices at the plant and that GM had not found a regular job for her to perform.

In her judgment, the WCJ ruled that:
Jones proved that she suffered a February 15, 2000 accident and injury but that her claim for compensation was filed too late and had prescribed;
Jones proved that she was temporarily totally disabled from March 29, 1999 through June 21,1999 and was therefore awarded TTD benefits for that period;
Jones proved that she was unable to earn 90% of her pre-injury wages from June 22, 1999 through February 9, 2000 and was therefore awarded supplemental earnings benefits for this period;
|7GM was entitled to a dollar-for-dollar credit for sickness and accident benefits and extended disability benefits paid through February 9, 2000 excluding those amounts deducted from Jones’ earnings as reimbursement;
Jones was not entitled to penalties and attorney fees because GM had not arbitrarily and capriciously terminated benefits for her thumb injury;
Jones was entitled to and awarded payment of Dr. Ferrell’s medical treatment.

Jones now appeals only the dollar-for-dollar credit allowed for disability benefits paid, and GM appeals the award of additional compensation.

DISCUSSION

Timeliness of the Appeal

Initially, we note an issue with the timeliness of this appeal that could potentially divest this Court of jurisdiction over the matter. The judgment appealed from was signed by WCJ Rosa Whitlock on June 28, 2002. That same day, the OWC sent notice of judgment to the parties’ attorneys. Jones filed her motion for appeal on September 6, 2002.

Louisiana R.S. 23:1310.5(B) provides: ■
The decision of the workers’ compensation judge shall be final unless an appeal is made to the appropriate circuit court of appeal. An appeal which suspends the effect or execution of an appealable judgment or order must be filed within thirty days. An appeal which does not suspend the effect or execution1 of an appealable judgment or order must be filed within sixty days. The delay for filing an appeal commences to run on the day after the judgment was signed or on the day after the district office has mailed the notice of judgment as required by Louisiana Code of Civil Procedure Article 1913, whichever is later. Motions for new trial shall be entertained in disputes filed under this Chapter.

This provision explicitly specifies that the delay for filing an appeal commences on the day after the mailing of the notice of judgment. Reading |«the rule strictly, Jones had sixty days from June 28, 2002 to file her motion for appeal, and thus her September 6, 2002 motion would not be timely. This provision is different from the usual provision for ordinary civil cases found in La. C.C.P. art.2087, which provides, in part:

A. Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken within sixty days of any of the following:
(1) The expiration of the delay for applying for a new trial or judgment notwithstanding the verdict, as provided by Article 1974 and Article 1811, if no application has been filed timely.
(2) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial or judgment notwithstanding the verdict, as provided under Article 1914.

The workers’ compensation rule does not explicitly make an allowance for any delay caused by the filing' of a motion for new trial, whereas the ordinary civil rule takes this delay into account. Notably, the workers’ compensation rule was amended in 2001 and for the first time allows motions for new trial; the prior rule disallowed such motions.

Because the compensation statutes do not specify the procedure for a motion for new trial, Section 6601 of the Compensation Hearing Rules applies. This rule provides that “any practice or procedure not in conflict with either the Workers’ Compensation Act or these rules will be guided by practice and procedure provided for in the Louisiana Code of Civil Procedure.”

Louisiana C.C.P. art.1974 provides:
The delay for applying for a new trial shall be seven days, exclusive of legal holidays. . The delay for applying for a new trial commences to run on the day after the clerk has mailed, or 19the sheriff has served, the notice of judgment as required by Article 1913.

In Girard v. Courtyard by Marriott, 02-105 (La.App. 3rd Cir.03/27/02), 813 So.2d 595, the workers’ compensation rule was interpreted so as to make its application identical to the analogous rules of civil procedure. It was held that the delay for filing a motion for appeal did not commence until the delay for applying for a new trial expired. We agree with that reasoning and adopt this interpretation of the rule.

June 28, 2002 was a Friday. The time for filing a motion for new trial commenced on Monday, July 1, due to the intervening weekend. Thursday, July 4, was a holiday, and excluding the following weekend, the period for filing a motion for new trial ended on Wednesday, July 10. The delay for taking an appeal under the Girard interpretation commenced the next day, July 11, 2002, and sixty days from that day (including holidays) ended on September 11, 2002. Including the new trial delay in the computation, the September 6, 2002 motion for appeal was timely. Accordingly, this Court will now consider the merits of this appeal.

“Dollar-For-Dollar” Credit Against Compensation For Benefits Paid

In her only assignment of error, Jones urges that GM was not entitled to a dollar-for-dollar credit for sums paid her under GM’s disability plan. Specifically, Jones asserts that La. R.S. 23:1225 does not allow an offset greater than 66 % percent of the injured workers’ weekly wage and that amendments to the statute have legislatively overruled this Court’s decision to the contrary in Hughes v. General Motors Guide Lamp Division, 469 So.2d 369 (La.App. 2d Cir.1985).

|inAs noted above, GM had demanded and is apparently receiving payment from Jones for overpayments of sickness and accident benefits under its insurance plan because Jones received Social Security disability payments. That reimbursement is not at issue here. Instead, the credit at issue concerns the WCJ’s additional award of compensation benefits from March 29, 1999 through February 9, 2000. In other words, the issue is GM’s right to a credit for the sickness and accident benefits paid against the additional workers’ compensation benefits awarded by the WC J.

When an employee receives, in addition to workers’ compensation benefits, the benefits under another (non-workers’ compensation) disability plan funded by the employer, the employer is entitled to a credit for the benefits received by the employee from the separate disability plan. Feild v. General Motors, 36,339 (La.App.2d Cir.09/18/02), 828 So.2d 150. The employer has the burden of proving both its entitlement to and the amount of this credit. Id.

Louisiana R.S. 23:1225 provides, in part:
C. (1) If an employee receives remuneration from:
(a) Benefits under the Louisiana Workers’ Compensation Law.
(b) Old-age insurance benefits received under Title II of the Social Security Act to the extent not funded by the employee.
(c) Benefits under disability benefit plans in the proportion funded by an employer.
(d) Any other workers’ compensation benefits,
then compensation benefits under this Chapter shall be reduced, unless there is an agreement to the contrary between the employee and the employer liable for payment of the workers compensation benefit, so that the aggregate remuneration from Subparagraphs (a) through (d) of this | T1 Paragraph shall not exceed sixty-six and two-thirds percent of his average weekly wage.
(3) If an employee is receiving both workers’ compensation benefits and disability benefits subject to a plan providing for reduction of disability benefits, the reduction of workers’ compensation benefits required by Paragraph (1) of this Subsection shall be made by taking into account the full amount of employer funded disability benefits, pursuant to plan provisions, before any reduction of disability benefits are made.
(4) If a conflict arises between the application of the provisions of this Section and those of any other Louisiana law or contract of insurance, the provisions of this Section shall control.

(Emphasis added.)

Jones urges that the rule does not allow reduction of her compensation benefits beyond a 66 % percent floor. However, La. R.S. 23:1225(C)(3) specifically allows for, and indeed requires, a reduction of compensation benefits for the full amount of employer funded disability benefits pursuant to plan provisions. The WCJ did not err in awarding GM this credit. Feild, supra.

The portion of the judgment concerning reimbursement was made in accordance with the law and with the reimbursement agreement under the GM benefits plan.

Entitlement to Further Benefits.

In its answer, GM appeals the award of additional compensation benefits to Jones as a result of the accident involving her thumb. The additional awards were for TTD through June 21, 1999 and SEB from June 22, 1999 through February 9, 2000.

haWith regard to TTD, La. R.S. 23:1221 provides, in part:

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

With regard to SEB, this court in Lee v. Schumpert, 36,733 (La.App.2d Cir.01/29/03), 836 So.2d 1214, explained:

A claimant is entitled to receive supplemental earnings benefits if she sustains a work-related injury that results in her inability to earn 90% or more of her average pre-injury wage. The claimant bears the initial burden of proving, by a preponderance of the evidence, that the injury resulted in the inability to earn that amount, under the facts and circumstances of the case. If the claimant meets this burden, the burden shifts to the employer to prove that the claimant is physically able to perform a certain job and that the job was offered to the claimant, or that the job was available to her within her or the employer’s geographic region. If the employer satisfied that burden, then the claimant must show, by clear and convincing evidence unaided by any presumption of disability, that she is unable to perform the employment offered or available, solely as a result of substantial pain. The WCJ’s factual findings cannot be reversed unless they are plainly wrong. (Cites omitted.)

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Seal v. Gaylord Container Corp., 97-0688 (La.12/02/97), 704 So.2d 1161; Banks v. Industrial Roofing & Sheet Metal Works, 96-2840 (La.07/01/97), 696 So.2d 551. In applying the manifest error-clearly wrong standard, the appellate 113court must determine not whether the trier of fact was right or wrong, but whether the fact-finder’s conclusion was a reasonable one. Id. If the fact-finder’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Seal, supra.

Although GM has shown by copious medical evidence that Jones made a large number of work-related injury complaints during her long tenure at the Shreveport plant, we do not believe that this evidence is sufficient to undermine the WCJ’s decision to credit Jones’ testimony that she was disabled due to her injury. The medical records pertinent to the thumb injury, particularly those of Dr. Ferrell, are sufficient support for the conclusion that Jones was unable to work until June 7, 1999, when Dr. Ferrell released her to fight-duty work. The WCJ found that Jones was unable to work until June 21, 1999 and awarded benefits accordingly. Likewise, the WCJ’s award of medical expenses for Dr. Ferrell’s treatment is supported by the same evidence. However, there is no support in the record for a finding of Jones’ inability to work after June 7, 1999, and the judgment of the WCJ is hereby amended to award TTD benefits only until June 7,1999.

Regarding the award of SEB, we believe that Jones’ personnel file and her medical records provide sufficient support for the WCJ’s conclusion that Jones was entitled to these benefits until her return to work. Payroll records show that Jones earned an average weekly wage of $1,166.40 for |uthe four weeks actually worked prior to her thumb injury. Jones’ medical records show that she continued to have pain and difficulty with her hand during the period after June 7, 1999, and by July 30,1999, Dr. Ferrell had made her right hand restrictions permanent. Moreover, there is nothing in the record to suggest that Jones could perform other employment outside of GM that would allow her to earn 90 percent of her pre-accident wages. This is sufficient proof to shift the burden to the employer. Compare Allen v. City of Shreveport, 618 So.2d 386 (La.1993).

GM failed to prove that Jones’ job as an assembly machine operator or equivalent was available until February 10, 2000. GM’s records do not show that the employer made a concerted effort to place Jones in a job that she could perform and suggest that no suitable job was available.

Because of the error pertaining to TTD benefits, the SEB award must be extended to begin on June 8, 1999. We believe that the WCJ correctly terminated benefits on February 9, 2000 when Jones actually returned to work.

CONCLUSION

The judgment of the WCJ is hereby amended to award Jones temporary total disability benefits from March 29, 1999 through June 7, 1999 and supplemental earnings benefits from June 8, 1999 through February 9, 2000. In all other respects, the judgment is affirmed. Costs of this appeal are assessed equally to Alma Jones and General Motors.

AFFIRMED, AS AMENDED.

Before BROWN, STEWART, GASKINS, MOORE and KOSTELKA (Pro Tempore), JJ.

ON REHEARING

hPER CURIAM.

On application of Alma Jones (“Jones”) for rehearing, this Court now clarifies its reasons for holding that General Motors Corporation (“GM”) is entitled to take a dollar-for-dollar credit against compensation amounts paid under its disability plan.

In its original opinion, this Court relied on La. R.S. 23:1225(0(3) as authority to uphold the GM reimbursement agreement. Upon further consideration, we find that this portion of the statute is inapplicable to this controversy but is instead designed to allocate the offset to the compensation insurer where both the insurer and a disability plan seek to employ the offset.

The question presented by this case is whether an employer may. enforce a reimbursement agreement when that agreement causes the worker’s recovery of benefits from multiple sources to go below 66 % percent of the worker’s average weekly wage.

In Hughes v. General Motors, 469 So.2d 369 (La.App. 2d Cir.1985), this Court enforced a nearly identical reimbursement agreement and allowed the employer to take a dollar-for-dollar credit against workers’ compensation for sums paid under an employer-funded group disability plan. The version of La. R.S. 23:1225 that would have applied in Hughes did not include employer-funded disability benefit plans as an item to be offset, and this Court did not consider the application of this statute. More recently, this Court has considered the offset but not in the context of a specific reimbursement agreement. See, e.g., Feild v. General Motors, 36,339 (La.App.2d Cir.09/18/02), 828 So.2d 150; Bank of Winnfield and Trust Co. v. Collins, 31,473 (La.App.2d Cir.02/24/99), 736 So.2d 263; Holden v. Intemational Paper Company, 31,104 (La.App.2d Cir.10/28/98), 720 So.2d 442, writ denied, 1998-2956 (La.01/29/99), 736 So.2d 834 and G.N.B. v. Jones, 29,779 (La.App.2d Cir.08/20/97), 699 So.2d 466.

La. R.S. 23:1225(0(1) specifies in part that when a worker receives benefits from more than one listed source, compensation benefits shall be reduced “unless there is an agreement to the contrary between the employee and the employer liable for payment of the workers’ compensation benefit, so that the aggregate remuneration from Subparagraphs (a) through (d) of this Paragraph shall not exceed sixty-six and two-thirds percent of his average weekly wage.”

In the instant case, the employer and employee have agreed that the employee must repay disability program benefits to the full extent that the employee is entitled to compensation benefits and not just to the extent that the aggregate exceeds the statutory cap.

We believe that by the addition of La. R.S. 23:1225(C)(l)(c), the legislature intended to broaden the scope of the benefit coordination scheme. The purpose of the scheme is to ensure that an employee experiencing only one wage loss receives only one wage loss benefit from the employer. Wal-Mart Stores, Inc. v. Keel, 2001-3013 (La.04/03/02), 817 So.2d 1. See also, Al Johnson Const. Co. v. Pitre, 98-2564 (La.05/18/99), 734 So.2d 623. To that end, the legislature specified that a worker may not receive more than 66 % percent of his average weekly wage from the combination of the specified sources of benefits.

Jones argues that the reimbursement agreement is against public policy and unenforceable because it reduces her aggregate remuneration below 66 % percent of her average weekly wage. See also, La. R.S. |a23:1225(C)(4). However, the statute does not specify that the aggregate remuneration- to the worker must be equal to 66 % percent of the worker’s average weekly wage; instead, it prohibits remuneration exceeding that amount in the absence of an agreement to the contrary. The statute does not explicitly place a lower limit on the amount of compensation benefits that must be awarded; other statutes establish that amount. Instead, the statute places a cap on the remuneration to the worker that may be varied by agreement. Accordingly, the reimbursement agreement does not violate public policy and is thus enforceable.

Jones further contends that the reimbursement agreement is unenforceable due to Great-West Life Annuity Insurance Company v. Knudson, 534 U.S. 204, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002). In Great West, the supreme court concluded that ERISA allowed a benefit plan only to seek equitable relief, and thus the plan could not bring an action for money damages against the beneficiary.

In Martco Partnership v. Lincoln National Life Insurance Company, 86 F.3d 459 (5th Cir.1996), the court concluded that La. R.S. 23:1225(A) and (C)(1)(c) are not preempted by ERISA. Because we find that the reimbursement agreement is authorized by and enforceable under Louisiana workers’ compensation law, the Workers’ Compensation Judge (“WCJ”) may enforce the agreement by reducing GM’s compensation obligation. In the instant case, GM is attempting to enforce its rights with regard to its compensation obligation and is not seeking a money judgment in favor of the disability plan.

In all other respects, this Court’s original opinion is maintained.


author: I «MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Leonardo HEREDIA.
    No. 02-KA-1162.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 29, 2003.

      Paul D. Connick, Jr., District Attorney, 24th Judicial District, Andrea F. Long, Terry M. Boudreaux, Walter G. Amstutz, Assistant District Attorneys, Gretna, LA, for Appellee.
    Martin E. Regan, Jr., Kris A. Moe, New Orleans, LA, for Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, Jr., SOL GOTHARD and MARION F. EDWARDS.
   I «MARION F. EDWARDS, Judge.

Defendant Leonardo Heredia appeals his sentence resulting from a plea of guilty to the charge of attempted distribution of heroin, a violation of LSA-R.S. 40:979 and 40:966(A).

Heredia was originally charged with possession with the intent to distribute heroin, to which charge he pled not guilty. The State subsequently amended the indictment to charge him with attempted distribution of heroin. That same day, Heredia withdrew his former plea of not guilty and entered a plea of guilty to the amended charges. In conformity with a plea agreement, the trial court sentenced him to twenty-two and a half years of imprisonment at hard labor without benefit of parole, probation or suspension of sentence, with credit for time served. Heredia made an oral motion for reconsideration of the sentence, which was denied. He now files this appeal.

Heredia asserts that the trial court erred in imposing sentence without benefits of parole, probation, or suspension of sentence. He argues that neither |3LSA-R.S. 40:966(B)(1), nor the attempt statute, LSA-R.S. 40:979, provides for denial of parole eligibility.

Louisiana courts hold that the law in effect at the time the offense was committed is determinative of the applicable penalty. This rule applies to eligibility for parole.

At the time Heredia committed the above offense, on or about May 8,1998, the penalty provision for a violation of LSA-R.S. 40:966(A) was set forth in LSA-R.S. 40:966(B)(1) which provided as follows:

B. Penalties for violation of Subsection A. Any person who violates Subsection A with respect to:
(1) A substance classified in Schedule I which is a narcotic drug (all substances in Schedule I preceded by an asterisk “ * ”), upon conviction shall be sentenced to life imprisonment at hard labor without benefit of probation, or suspension of sentence, and may, in addition, be required to pay a fine of not more than fifty thousand dollars, [emphasis supplied]

Heredia correctly notes that the above statute does not deny parole eligibility; however, he pled guilty to attempted distribution of heroin. The penalty for attempted distribution of heroin at the time of the commission of the instant offense was set forth in LSA-R.S. 40:979 and in 1998 provided as follows:

A. Except as otherwise provided herein, any person who attempts or conspires to commit any offense, denounced and or made unlawful by the provisions of this Part shall, upon conviction, be fined or imprisoned in the same manner as for the offense planned or attempted, but such fine or imprisonment shall not exceed one-half of the punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.
B. Any person who attempts or conspires to distribute or possess with intent to distribute any substance classified in Schedule I, as provided for in R.S. 40:968 and R.S. 40:964, which is a narcotic drug shall upon conviction, be imprisoned at hard labor for not less than eight nor more than fifty years without benefit of parole, probation or suspension of sentence and may, in addition, be required to pay a fine of not more than ten thousand dollars.

|4Since heroin was/is classified as a narcotic drug under Schedule I, as provided in LSA-R.S. 40:964(B)(11) Heredia was properly sentenced under the 1998 penalty provisions in LSA-R.S. 40:979(B) which provided that a defendant be imprisoned at hard labor for not less than eight nor more than fifty years without benefit of parole, probation or suspension of sentence. Thus the trial court did not err in sentencing defendant without benefit of parole. This assignment of error is without merit.

Heredia also avers that his sentence of twenty-two and a half years at hard labor without benefit of probation, parole or suspension was constitutionally excessive. He also argues that the trial court did not consider the factors set forth under LSA-C.Cr.P. art. 894.1.

LSA-C.Cr.P. art. 881.2(A)(2) provides that a “defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” This Court has consistently recognized that LSA-C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a sentence to which the defendant agreed prior to pleading guilty.

The record reflects that Heredia’s sentence was imposed in conformity with a plea agreement. On February 14, 2001, the trial court informed Heredia of his constitutional rights and of the sentencing range for attempted distribution of heroin, and then informed him that he would receive a sentence of twenty-two and a half years at hard labor without benefits. On that date, Heredia executed a Waiver of Constitutional Rights Plea of Guilty form, indicating that he understood his sentence in the case would be twenty-two and one-half years at hard labor without benefits. At the plea colloquy, after Heredia was specifically informed of the sentence, he questioned the meaning of the “without benefits” portion of the ^sentence. The trial judge subsequently explained that the sentence was without benefit of probation, parole or suspension of sentence, to which Heredia acknowledged his understanding. He was then sentenced consistent with the plea agreement.

On these facts, based on LSA-C.Cr.P. art. 881.2(A)(2), Heredia cannot seek review of the sentences to which he agreed at the time of his plea. This assignment of error is without merit.

Our review of the record for errors patent reveals no such errors patent.

For the foregoing reasons, we affirm the conviction and sentence.

AFFIRMED.

      . State v. Sugasti, 01-3407 (La.6/21/02), 820 So.2d 518; State v. Cook 02-104 (La.App. 5 Cir. 5/29/02), 820 So.2d 1144.

      . See State v, Lewis, 01-1084 (La.App. 5 Cir. 3/13/02), 815 So.2d 166, writ denied 2002-1053 (La. 11/15/02), 828 So.2d 424.

      . State v. Andino, 01-820 (La.App. 5 Cir. 1/15/02), 807 So.2d 944, 945; State v. Stevenson, 00-1296 (La.App. 5 Cir. 1/30/01), 778 So.2d 1165, 1166.

      . LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir. 1990).