author: pAMY, Judge.

text:
    VERMILION PARISH POLICE JURY v. Tim ALBERT, et al.
    No. 2003-1420.
    Court of Appeal of Louisiana, Third Circuit.
    March 3, 2004.

      Michael W. Campbell, Caffery, Oubre, Dugas, Lafayette, LA, for Defendants/Ap-pellees, Louisiana Farm Bureau Casualty Ins. Co., Tim Albert, Stacey Albert.
    Paul G. Moresi, III, Abbeville, LA, for Plaintiffs/Appellants, Vermilion Parish Police Jury.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   pAMY, Judge.

A parish police jury filed suit against the defendant sugar-cane farmers, alleging that the defendants’ harvesting operations damaged a parish road. The police jury sought to recover amounts expended to repair the damaged road. A bench trial was held in the matter, in which the judge dismissed the police jury’s cause of action on the basis that the defendants could not have reasonably foreseen that their harvesting operations would cause damage to the road. From this judgment, the police jury appeals. For the following reasons, we affirm.

Factual and Procedural Background

According to the record, Tim Albert, d/b/a Circle “A” Farm, Inc., and his brother, Stacy, began farming sugar cane on a plot of land on one side of Picard and Andrus Roads in rural Vermilion Parish in 1989. (Maps introduced into evidence by the police jury indicate that Picard and Andrus Roads are essentially the same road; the name merely changes after a sharp bend in the road.) In 1996, the Alberts began farming a plot of land on the opposite side of Picard and Andrus Roads. Tim Albert (hereinafter “Mr. Albert,” as Stacy Albert did not testify at trial) explained during the proceedings below that during harvesting of sugar cane, farmers use tractors and cane carts to collect the crop from the field. The tractors then pull the cane carts to the loading site, where the harvested cane is transferred to an eighteen-wheeler for transportation to a mill. Mr. Albert noted that the loading site for these particular plots of land was only on one side of Picard and Andrus Roads, so that cane from the opposite side of the road would have to cross oyer in order to reach it. Mr. Albert testified that beginning on Monday, November 20, 2000, and continuing over the next seven to ten days, when he and his brother harvested the plots along Picard and Andrus Roads, the headland on the plot across the street from the loading site was wet |aand muddy from heavy rains; consequently, it was unfit to be used by the tractors and cane carts en route to the loading site. As a result, the tractors and carts traveled a short distance down Pi-card and Andrus Roads to reach the loading site. Mr. Albert estimated that each cart weighed between 48,000 and 50,000 pounds (approximately 25 tons) and that roughly 285 to 325 trips were made to the loading site down Picard and Andrus Roads over the course of the seven- to ten days of harvesting.

According to evidence presented at trial, the Vermilion Parish Police Jury received a complaint about the condition of Picard and Andrus Roads in December 2000. The evidence further indicated that the Parish had hard-surfaced these roads a few months before the complaint was received and that they were in good shape prior to the defendants’ harvesting operations. Upon receiving the complaint about Picard and Andrus Roads, a member of the police jury went to the site to view the road for himself; according to his trial testimony, he concluded that sugar cane harvesting operations were responsible for the damage. Moreover, the police juror testified that the extent of the damage to the road, when compounded with the mud and water that had accumulated thereon, would not have been favorable for use by motorists. The police jury arranged for Parish workers to repair the damaged portion of the road; at first, the ruts were filled in with limestone in December 2000, and then, the road was resurfaced in May 2001.

The police jury’s roads supervisor testified that he inspected the roads in question at the request of the police jury. He observed that the ruts in the street were rather deep at the intersection of Picard and Andrus Roads, so much so that “cars were dragging” the surface of the road. According to his calculations, 982 feet of the road was damaged.

|sThe Vermilion Parish Police Jury filed suit against Tim Albert, d/b/a Circle “A” Farm, Inc., and Stacy Albert on May 3, 2001, alleging that the Alberts’ farming operations had damaged Picard and An-drus Roads, and that it had repaired this road at a cost to the taxpayers of $9,645.00. The police jury asserted that pursuant to La.Civ.Code art. 2315 and La. R.S. 33:1236(17), the Alberts were obliged to reimburse it for the amounts expended to repair the roads damaged by their harvesting operations.

On March 5, 2003, the matter proceeded to trial. At the conclusion of evidence, the judge ruled in favor of the defendants, dismissing the police jury’s cause of action with prejudice. In her oral reasons for judgment, the trial judge explained that she did not find that the police jury had proven that it was reasonably foreseeable to the defendants that their use of the road would result in damages.

Discussion

Louisiana Civil Code Article 2315 provides the foundation for tort liability in Louisiana. This article states, in pertinent part, that “[ejvery act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” In order to establish a defendant’s liability under La.Civ.Code art. 2315, an aggrieved party must succeed in a four-part duty/risk analysis:

(1) Was the conduct in question a substantial factor in bringing about the harm to the plaintiff, i.e., was it a cause-in-fact of the harm which occurred? (2) Did the defendant(s) owe a duty to the plaintiff? (3) Was the duty breached? (4) Was the risk, and harm caused, within the scope of protection afforded by the duty breached?

Davis v. Witt, 02-3102, 02-3110, p. 10 (La.7/2/03), 851 So.2d 1119,1127.

[4The Civil Code addresses negligence, a species of tort liability, in Article 2316, which states that “[e]very person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.” See Myers v. Dronet, 01-5 (La.App. 3 Cir. 6/22/01), 801 So.2d 1097. In order to prevail in a negligence cause of action brought under La.Civ.Code art. 2316, an aggrieved party must meet the following five-pronged test, as outlined by a panel of this court in Myers, 801 So.2d at 1104:

(1) the delictual conduct was the cause-in-fact of the damage or injury; (2) the defendant owed the plaintiff a duty under the specific circumstances of the particular case; (3) the particular defendant breached the duty which s/he owed the particular plaintiff; (4) the risk and resulting harm stood within the scope of protection of the defendant’s duty; and (5) the plaintiff showed actual damage.

In the instant appeal, the police jury contests the trial judge’s determination that the defendants could not have reasonably foreseen that them farming operations would have damaged Picard and Andrus Roads. A helpful discussion of the significance of “reasonable foreseeability” is found in the fourth circuit’s opinion in Maeder v. Williams, 94-754 (La.App. 4 Cir. 11/30/94), 652 So.2d 1005, writ denied, 94-3150 (La.3/10/95), 650 So.2d 1177, in which the court stated as follows:

Generally, negligence is defined as conduct which falls below the standard established by law for the protection of others against an unreasonable risk of harm. Dobson v. Louisiana Power and Light Company, 567 So.2d 569 (La.1990). A particular unforeseeable risk may be included within the scope of a duty if the injury is easily associated with the rule relied on and with other risks of the same type that are foreseeable and clearly within the ambit of protection. Forest v. State, thru La. Dept. of Transportation, 493 So.2d 563 (La.1986).
In reviewing a determination that negligence exists, the reviewing court must consider the ease with which it can associate the duty owed and the risk encountered, whether the breached duty was a substantial cause and whether the risk is reasonably foreseeable. See, Sibley v. Gifford Hill and Co. Inc., 475 So.2d 315 (La.1985); Dunne v. Orleans Parish School Board, 463 So.2d 1267 (La.1985).

| JMaeder, 652 So.2d at 1013. Whether a party has breached a duty owed to another is a matter of fact. See Mundy v. Department of Health and Human Resources, 620 So.2d 811 (La.1993). In reviewing a trial court’s factual determinations, an appellate court is to employ the manifest error — clearly wrong standard. Hill v. Morehouse Parish Police Jury, 95-1100 (La.1/16/96), 666 So.2d 612.

The record of the proceedings below contains the following exchange between the trial judge and the attorney for the police jury, in which the trial judge expresses concern as to proof of the foreseeability aspect of the police jury’s cause of action:

THE COURT: Well, I guess I want you to point out for me what evidence is in the record to show just that, what you’re saying that — in other words, that it quickly became evident and that they continued to use the road in spite of the manifestation of the damage. I would like for you to point in the record to me where that evidence exists.
[Counsel for the Vermilion Parish Police Jury]: Well, there was some testimony [ ... ] regarding the — I think pri- or to the actual damage of the surface of the road, that there was some complaints about mud and that he pointed out to them that they couldn’t continue to use the road in the manner that they were using it.
I’m not sure that the surface was damaged at that time. It would have probably been difficult to tell because of the amount of the mud on the road. But I think there was some signal or message from the — an employee of the police jury to the defendants that they couldn’t continue to use the road in the manner that they used it.
I’m not sure if that addresses the Court’s—
THE COURT: Well, I mean, telling someone you can’t leave mud on the road is different than telling someone you are damaging the road. Or having a witness say, yes, early in the operation, I saw ruts in the road, and, you know, it was obvious to me — I mean, that’s what I’m seeing a lack of in the record here, is that — is some notice to these defendants.
Because, while I agree with you, certainly the better practice would have been for them to use the headlands, the question that — as I said, because it’s on the straight theory of negligence — is should they have anticipated that this road could not withstand their operation and at what point did they receive notice that it could not. And that’s what I’m having a little trouble with.
[Counsel for the police jury]: Your Honor, all I can say is — point to the evidence that the road was used literally hundreds of times in connection with the harvesting. If the defendants had only made three or four passes down that road in a matter of a couple days, I would agree | fithat it may not be foreseeable or anticipated that that would damage it. But, to use it 300 times, I would think that the Court—
THE COURT: Yeah, but, you see, that’s the thing, is how are they going to know that. In other words, they don’t know how the road’s built. They don’t know what its loading capacity is. We’re all agreeing that there was no posting regarding load. And, actually, the weight doesn’t seem to be the problem.
So the question is, when you’re asking me to hold somebody responsible for being negligent and for negligent use or misuse of a road, one of the issues that I have to address is whether it was a foreseeable situation.
In other words, should the prudent farmer have said, I know I can’t use this road? That’s what I’m having trouble with. Because there was no overt notice to them about it. And the only notice that they would have had is once some damage started to show up. And yet there’s nothing in the record to show when that occurred. We’re talking about a very small window here.
And, when they were put on notice, apparently the operation ceased and hasn’t been renewed. And so that’s my — that’s the trouble that I’m having, is the question of did they have notice that the road was not capable of handling this operation and when did they have the notice of it.

The record reflects that Tim Albert admitted that he used Picard and Andrus Roads during harvesting operations in late November 2000. However, Mr. Albert testified at trial that he used this road because he could not have used heavy equipment such as tractors and carts on the headlands during this particular harvest. He explained that, due to the heavy rains, the headlands, which are comprised solely of dirt, turned into mud, which the heavy equipment could not traverse. Mr. Albert testified that he and his brother hauled rocks to the area of the harvest in an effort to remove some of the mud from the tractor tires before going onto the road and that he also fitted a blade to the tractors for the purpose of scraping the mud from the road.

Mr. Albert noted that in November 2000, the plot of land across the road from the loading site did not have a cross-bridge and culvert, which could have been utilized in moving the harvest to the loading site in lieu of the headlands or the road. He stated that he contacted the police jury with respect to installing a culvert and 17cross-bridge, and one was installed when the ground dried out. Now that the culvert and bridge have been installed, and because the fields have been dry, the Al-berts use the bridge and the field road instead of using Picard and Andrus Roads during harvesting operations.

At trial, Mr. Albert maintained that neither the police jury nor any of its representatives had asked him to stop using Picard and Andrus Roads during the November 2000 harvest and that no one informed him to stop because the road was being damaged. Moreover, he noted that he had not seen any signs along the road that indicated that it was subject to weight or use restrictions.

Based upon our review of the record, we do not find that the trial judge was manifestly erroneous or clearly wrong in her determination in this matter. The evidence adduced at trial is insufficient to prove by a preponderance of the evidence that the consequences of the Albert’s harvesting operation were reasonably foreseeable to them. Although the police jury provided testimony regarding the extent of damages to the road, no testimony was offered to show that the Alberts had been warned about the consequences of using tractors and cane carts on Picard and An-drus Roads. According to the record, the road was resurfaced using the least expensive hard surface and the least expensive road base available, which affected the amount of weight the road could handle; however, the evidence also indicates that there were no road-use-restriction signs in place. In addition, although the police jury introduced the stipulated testimony of several residents of Picard and Andrus Roads — viz., that the road was resurfaced a few months before December 2000, that the roads were in good shape before December 2000, that the defendants were using Picard and Andrus Roads with tractors and cane carts during December 2000, that | ¡¡after use of the roads by the defendants, the surfaces were damaged, and that the witnesses saw no other activity which could have caused the damage — the trial judge was not required to find that this testimony proved that the consequences of using tractors and cane carts on the road were reasonably foreseeable to the Alberts. Finally, the record reflects that the road was covered in mud as a result of the harvesting operation, and the record does not indicate when the defendants became aware of any damage. In sum, we find no manifest error in the trial judge’s determination that the plaintiff had not proven its negligence cause of action by a preponderance of the evidence. This assignment is without merit.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. The Police Jury is cast with the cost of the stenographer. La.R.S. 13:4521(C); See West Baton Rouge Parish Police Jury v. Westside Aero, Ltd., 572 So.2d 1127 (La.App. 1 Cir.1990).

AFFIRMED.

COOKS, J., dissents.

      . La.R.S. 33:1236(17) allows police juries and parish governments to file suit against "any person for whose account levees, roads, etc., may have been made or repaired at the expense of the parish, and to obtain the reimbursement of said amount, by privilege on the land subject to the works."


source: Caselaw Access Project

author: |tAMY, Judge.

license: Public Domain

text:
    Jasper and Mary RIZZO v. Heath NICHOLS.
    No. 2003-1394.
    Court of Appeal of Louisiana, Third Circuit.
    March 3, 2004.

      Eugene P. Cicardo, Jr., Alexandria, LA, for Plaintiffs/Appellees: Jasper and Mary Rizzo.
    Malcolm X. Larvadain, Alexandria, LA, for Defendant/Appellant: Heath Nichols.

      Court composed of SYLVIA R. COOKS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   |tAMY, Judge.

Plaintiffs, husband and wife, sought recovery for damage that occurred after the defendant changed the natural drainage of water across the plaintiffs’ property. The trial judge determined that the defendant had notice that construction activities at this particular location would cause such drainage problems and that the defendant’s activities were a cause-in-fact of the water damage to the plaintiffs’ property. The trial judge awarded the plaintiffs actual damages as well as damages for inconvenience and mental anguish. From this judgment, the defendant appeals. For the following reasons, we affirm.

Factual and Procedural Background

According to the record, Jasper and Mary Rizzo, plaintiffs herein, moved into a house on Brooks Boulevard in Alexandria, Louisiana, in November 2001. At the time, and for several months thereafter, the Rizzos’ property was located next to a vacant lot. Mr. Rizzo testified at trial that when it rained, the water that fell on his and the adjoining properties was channeled into a lower area that ran across the adjacent property and drained into the street. The record further indicates that Heath Nichols, defendant herein, purchased the vacant lot contiguous to the Rizzos’ in June 2001. Mr. Nichols began construction of a duplex apartment shortly thereafter, whereupon the Rizzos’ property allegedly began to flood. Mr. Rizzo filed the instant suit for damages on October 30, 2002, and a bench trial was held in the matter on April 29, 2003.

Mr. Rizzo testified at trial that until Mr. Nichols began construction on the duplex, his — Mr. Rizzo’s — property never flooded after it rained. However, Mr. Rizzo noted, after construction, the natural drainage across Mr. Nichols’s property was disrupted, and Mr. Rizzo began to have problems with standing water. He 12approached Mr. Nichols about the drainage problems, and he recalled that Mr. Nichols agreed to “look into it.” Mr. Rizzo testified that he approached Mr. Nichols two or three more times after their initial conversation to repeat his request that he do something about the flooding, but Mr. Nichols took no further action. At trial, Mr. Rizzo advanced the theory that Mr. Nichols had built the duplex “up,” at a higher elevation than the surrounding land, thereby causing Mr. Rizzo’s property to be the low spot where water collected after a rain. Mr. Rizzo testified that the standing water had damaged the shed that stood behind his house and that he eventually had to install a catch basin at the back of his property to ameliorate the drainage problem.

The trial judge issued written reasons for judgment on June 20, 2003, in which he observed that the primary issue for determination in the matter was whether Mr. Nichols knew or was aware that construction on his property would cause damage and whether he could have prevented that damage by the exercise of reasonable care. The trial judge noted that Mr. Nichols admitted at trial that he had discussed the drainage issue with two plumbers but had not taken any action. As such, the trial judge concluded, Mr. Nichols had notice that his activities would cause damage to the Rizzos’ property. The trial judge likewise concluded that the construction on Mr. Nichols’s property was a cause-in-fact of the damage to the Rizzos’ property. Accordingly, the trial judge awarded the Rizzos damages in the amounts of $2,175.00 for construction of a catch basin; $750.00 for repairs for water damage to the shed; $2,000.00 in inconvenience damages for the loss of use of the shed, loss of use of the yard, and standing water on the property; and $2,000.00 general damages for mental anguish. Mr. Nichols appeals the trial judge’s findings.

| (¡Discussion

Mr. Nichols advances the following assignments of error on appeal:

1. The trial court erred in its determination that Mr. Nichols knew that constructing the duplex on his property would cause flooding on the Rizzos’ property.
2. The trial court erred in awarding damages of $2,175.00 for the installation of a catch basin on the Rizzos’ property.
3. The trial court erred in awarding damages of $750.00 for repairs to the water damage in the Rizzos’ shed.
4. The trial court erred in awarding inconvenience damages of $2,000.00 for the Rizzos’ loss of use of the shed, loss of use of their yard, and for the standing water on their property.
5. The trial court erred in awarding general damages of $2,000.00 for the Rizzos’ mental anguish.

The present appeal involves the obligations of vicinage, set forth in Articles 667-669 of our Civil Code. Louisiana Civil Code Article 667, the provision of law that governs the instant matter, states, in pertinent part, as follows:

Although a proprietor may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him. However, if the work he makes on his estate deprives his neighbor of enjoyment or causes damage to him, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known that his works would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care....

In Begnaud v. Camel Contractors, Inc., 98-207, pp. 5-6 (La.App. 3 Cir. 10/28/98), 721 So.2d 550, 554, writ denied, 98-2948 (La.2/5/99), 738 So.2d 1, a panel of this court discussed the concept of reasonable care in context of vicinage as follows:

Whether an owner of property is liable to his neighbors under the Civil Code Articles of vicinage, La.Civ.Code arts. 667-669, is a determination to be made by the trier of fact based upon the | reasonableness of the conduct in light of the circumstances, and such an analysis requires consideration of factors such as the character of the neighborhood, the degree of intrusion privacy [sic] and the effect of the activity on the health and safety of the neighbors. Barrett v. T.L. James & Co., (La.App. 2 Cir. 4/3/96); 671 So.2d 1186, writ denied, 96-1124 (La.6/7/96); 674 So.2d 973.

A trial court’s determinations in vicinage cases are reviewed by an appellate court pursuant to the manifest-error standard. Begnaud, 721 So.2d at 554.

In the present appeal, Mr. Nichols argues that testimony elicited at trial establishes that he neither knew nor could have known that the construction activities on his property would cause flooding and damage to the Rizzos’ property. Mr. Nichols maintains that although he knew that water stood on his property after a heavy rain, he did not know that said standing water would cause damage. In support of his assertion that he was unaware of the consequences of building on his property, Mr. Nichols points out that “standing water is common throughout the entire neighborhood” and that he “employed a reputable contractor, who built the duplex [on Mr. Nichols’s property] in accordance with local codes and regulations.”

According to the record of the proceedings below, Mr. Rizzo testified that he had informed Mr. Nichols of the drainage problem soon after construction began. Mr. Nichols’s testimony confirmed that Mr. Rizzo had approached him during construction and that he had contacted two plumbers about remedying the situation. However, the record indicates that Mr. Nichols did nothing further to provide a solution to the disrupted drainage pattern occasioned by his activities. Instead, the record reflects that Mr. Rizzo installed a catch basin on his property in an attempt to remedy the situation.

Where an aggrieved party seeks recovery under the law of vicinage for damage occasioned by a neighboring landowner’s activities, that party must demonstrate a | Bcausal link between the damage sustained and the neighboring landowner’s action or inaction. Haworth v. L’Hoste, 95-0714 (La.App. 4 Cir. 11/30/95), 664 So.2d 1335, writ denied, 96-408 (La.3/29/96), 670 So.2d 1235.

At trial, Mr. Elbert Wiggins, the previous owner of the Rizzos’ property, testified that his land never flooded during the five years that he lived there; instead, he noted, water drained from his property through the lower-lying area that ran across the adjacent vacant lot, now owned by Mr. Nichols. Mr. Rizzo likewise testified that before Mr. Nichols began construction, his property never flooded, and water drained in the manner described by Mr. Wiggins. Mr. Rizzo introduced into evidence photographs of his land, taken before construction activities commenced next door, which showed the low-lying area on the adjacent property. He then introduced photographs of his property after construction began in which standing water covered substantial portions of his yard and surrounded his shed. Additional photographs, taken of Mr. Nichols’s duplex after its completion, show that the duplex was built at a higher elevation than the surrounding land, as indicated by the dirt and sod sloping downward from the building to the level of Mr. Rizzo’s property.

We find no manifest error in the trial judge’s determination that Mr. Nichols knew that the activities on his property would cause damage to the Rizzos’ property and that he could have prevented such damage by the exercise of reasonable care. Moreover, we find no manifest error in the trial judge’s determination that the construction activities undertaken by Mr. Nichols disrupted the natural drainage of his and the Rizzos’ respective properties and that these activities were the cause-in-fact of the Rizzos’ damages. This assignment is without merit.

| Damages

In addition to general damages, a plaintiff in a vicinage cause of action may recover damages for mental anguish, discomfort, irritation, anxiety, and loss of use and/or enjoyment of his property. Branch v. City of Lafayette, 95-298 (La.App. 3 Cir. 10/4/95), 663 So.2d 216. A trial court is afforded great discretion in fixing damages in accordance with its factual determinations in a case, and an appellate court may not disturb such awards absent a clear abuse of this discretion. Arnold v. Town of Ball, 94-972 (La.App. 3 Cir. 2/1/95), 651 So.2d 313.

With respect to the catch basin, Mr. Nichols argues on appeal that the Rizzos paid “an excessive amount” for it and that the trial court’s award of $2,175.00 for its installation is excessive. Mr. Nichols proposes that this same catch basin could be installed for $1,000.00. Moreover, Mr. Nichols argues that four properties benefit from the catch basin, and he should not be required to “bear the entire expense.”

Regarding the award of $750 for repairs to the water-damaged shed, Mr. Nichols claims that the evidence presented at trial fails to establish conclusively that the shed sustained damages. Mr. Nichols points out that none of the boards in the shed were rotten.

Mr. Nichols further argues that the award of $2,000.00 for inconvenience is not warranted because the Rizzos’ land is low-lying and because an “unusual amount of rain fell in 2002.”

When we examine the record, we find that the trial judge did not abuse his vast discretion in awarding the Rizzos damages for the installation of the catch basin, for repairs to the shed, and for inconvenience. The evidence presented at trial clearly supports such awards. These assignments of error lack merit.

|7With respect to recovery for mental anguish, a panel of this court noted in Begnaud that such damages are appropriate:

(1) when property has been damaged by an intentional or illegal act; (2) where property is damaged by acts for which the tortfeasor will be strictly or absolutely liable; (3) when property is damaged by acts constituting a continuous nuisance; (4) when property is damaged at a time in which the owner thereof is present or situated nearby and the owner experiences trauma as a result. [Citations omitted.]

Begnaud, 721 So.2d at 555 (quoting Kolder v. State Farm Ins. Co., 520 So.2d 960, 963 (La.App. 3 Cir.1987)).

Regarding the award of $2,000.00 for mental anguish, Mr. Nichols claims that such an award was inappropriate because the Rizzos failed to prove that any of the four considerations listed in Begnaud, above, were applicable.

Mr. Rizzo testified at trial that the standing water on his property kept him from venturing into his back yard and proved a breeding ground for mosquitoes. He also testified that the shed would often be unusable for a week’s time after the water receded. Moreover, Mr. Rizzo testified that the condition of his property caused tension between him and his wife. Based upon our review of the record, we find no abuse of discretion on the part of the trial judge in awarding $2,000.00 to the Rizzos for mental anguish due to damage to their property. This assignment is without merit.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this proceeding are assigned to the defendant-appellant, Heath Nichols.

AFFIRMED.


author: hEZELL, Judge.

text:
    Walter NEWSON v. RICHARD SPURGEON MASONRY.
    No. WCA 2003-1367.
    Court of Appeal of Louisiana, Third Circuit.
    March 3, 2004.

      Bradley John Gadel, Percy, Smith, Foote, Alexandria, LA, for Defendant/Appellant Richard Spurgeon Masonry.
    Maria Anna Losavio, Losavio Law Firm, Alexandria, LA, for PlaintiffAppellee Walter Newson.
    Court composed of BILLIE COLOMBARO WOODARD, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
   hEZELL, Judge.

This case arises from a workers’ compensation dispute filed by Walter Newson against his employer, Richard Spurgeon Masonry. Spurgeon asserts that the workers’ compensation judge erred in assessing penalties and attorney’s fees against it for late payment of a medical bill and in rejecting its claims that Newson committed fraud under La.R.S. 23:1208. Newson answers the appeal, claiming that the workers’ compensation judge erred in not awarding attorney’s fees for termination of indemnity benefits and seeking additional attorney’s fees for work necessitated by Spurgeon’s appeal. For the following reasons, we affirm the decision of the workers’ compensation judge (WCJ) as amended.

On June 20, 2001, Newson injured his left hand while in the course and scope of his employment with Spurgeon. This is not in dispute. He was treated at the emergency room at Huey P. Long Medical Center the same day. He filed a claim for temporary total disability benefits (TTDs) which was accepted by Spurgeon and paid in accordance with the law.

On May 30, 2002, Newson had an appointment with his doctor to examine his hand. Newson was authorized to return to work with limited use of his left hand, with a reevaluation appointment scheduled for June 27, 2002. However, Spurgeon kept paying benefits up to June 25, 2002. Spur-geon knew of the doctor’s appointment on the 27th and requested an updated work on his work status from the doctor. On this date, Newson was again released to modified work duty with limited use of his left hand. Spurgeon received this update on his medical status on July 10, 2002, and issued a check for benefits the next day. However, while Spurgeon was waiting on the updated medical status, it did not pay indemnity benefits. Newson then instituted this claim, asserting that the benefits for the period of June 26, 2002 through July 9, R2002 were untimely paid and that Spurgeon did not timely pay the medical bill arising from his visit to the emergency room. Spurgeon countered with a claim that Newson committed fraud under La. R.S. 23:1208.

At trial, the WCJ found that, due to the change in his medical status as of May 30, 2002, Newson was no longer entitled to TTDs as of that time and was only entitled to supplemental earnings benefits (SEBs). Since SEBs are paid on a monthly rather than weekly basis, the WCJ found that the benefits .were not untimely paid. The WCJ also found that Spurgeon did pay the emergency room bill after the time allowed by La. R.S. 23:1201(E) and awarded New-son $2,000 in penalties and $2,000 in attorney’s fees for the violation. Finally, the WCJ found that Spurgeon did not prove that Newson violated La.R.S. 23:1208. From this decision, both parties appeal.

Louisiana jurisprudence is clear that in a workers’ compensation case, as in other cases, the appellate court’s review is governed by the manifest error or clearly wrong standard. Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551; Belaire v. L & L Oil Co., 93-1198 (La.App. 3 Cir. 5/4/94), 636 So.2d 1177. The appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one, after reviewing the record in its entirety. Stobart v. State Through Dep’t of Transp. and Dev., 617 So.2d 880 (La.1993). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Id.

In its -first assignment of error, Spurgeon claims that the workers’ compensation judge erred in imposing penalties and attorney’s fees for late payment of the June 20, 2001 bill, as the bill was paid within sixty days of receipt of the requested medical 13records. We disagree.

After a review of the record, we find that the WCJ committed no manifest error in finding that Spurgeon failed to timely pay the June 20, 2001 medical bill. Spurgeon had written notice of the bill as of September 13, 2002. However, the bill was not paid until January 21, 2003. Louisiana Revised Statute 23:1201(E) states: “[mjedical benefits payable under this Chapter shall be paid within sixty days after the employer or' insurer receives written notice thereof.” Spurgeon cannot use the fact that it did not receive the requested medical records as a reasonable basis for paying the medical bill late, when they received the bill directly from Huey P. Long hospital in September of 2002. “[A]ny request by the employer for additional medical records can and should be done in an expeditious manner within the sixty day time period.” Roque v. Shell Beach Trucking, 02-1305, p. 6 (La.App. 3 Cir. 5/7/03), 844 So.2d 1111, 1115. This assignment of error is without merit.

In its second assignment of error, Spurgeon claims that the WCJ erred in rejecting its assertion that Newson committed fraud under La.R.S. 23:1208. Again, we disagree. The “requirements for forfeiture of benefits under Section 1208 are that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment.” Resweber v. Haroil Const. Co., 94-2708, p. 7(La.9/5/95), 660 So.2d 7, 12. When Newson retained counsel to represent him in this matter, that counsel had him sign blank 1020 forms which were to be filled out as necessary. While still receiving benefits from Spurgeon, Newson began work as a janitor at Louisiana Works. He received- $240 a week in compensation for this work. However, due to a misunderstanding with his counsel’s secretary, his earnings were reported to Spurgeon as $240 a month. When this error became evident at his deposition, Spurgeon informed Newson of the amount |4of the overpayment they made, and New-son fully reimbursed Spurgeon. At trial, the WCJ found that this was simply a clerical error and that Spurgeon failed to show that Newson willfully misrepresented his earnings. There is nothing in the record which indicates that this finding is manifestly erroneous.

Newson answered Spurgeon’s appeal, claiming that the WCJ erred in failing to award attorney’s fees for the alleged termination of indemnity benefits on June 26, 2002. Louisiana Revised Statutes 23:1221(l)(a) states that an employee is entitled to TTDs for:

any injury producing temporary total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, or experience ....

For an injury which results in an employee’s inability to earn wages equal to ninety percent or more of his or her wages at the time of injury, that employee is entitled to SEBs as prescribed by La.R.S. 23:1221(3)(a). An award for TTDs “shall cease when the physical condition of the employee has resolved itself to the point that ... regular treatment by a physician is not required.” La.R.S. 23:1221(l)(d). Thus, entitlement to workers’ compensation benefits is based on the claimant’s ability or inability to earn wages. Mitchell v. Abbeville Gen. Hosp., 93-1146 (La.App. 3 Cir. 4/6/94), 635 So.2d 540. A change in medical condition can be a basis upon which an employer may change a worker’s classification from TTDs benefits to SEBs. Joiner v. Newberg Venture, 94-1533 (La.App. 3 Cir. 5/3/95), 657 So.2d 206.

It is clear that Newson’s benefits were not terminated on June 26, 2002, as they were paid on July 11, 2002. Furthermore, there was a change in Newson’s medical condition on May 30, 2002, when he was released to modified work with limited use of his injured left hand. He was no longer entitled to TTDs. The workers’ ^compensation judge found that, even though Spurgeon continued to pay Newson in weekly increments though June, he was only entitled to benefits on a monthly basis as of the start of June 2002. This was reaffirmed on June 27, 2002, when Newson was again released to limited work duty. Accordingly, the WCJ found that, because his benefits were due on a monthly rather than weekly basis, the benefits were not untimely. We find no error in this ruling.

Newson also answered the appeal seeking an increase in attorney’s fees to cover the cost of the work necessitated by Spurgeon’s appeal. The WCJ awarded claimant $2,000 in attorney’s fees at the hearing level. We increase the award to $3,500 to cover the extra work necessitated by this appeal.

Accordingly, for the reasons stated, the decision of the WCJ is affirmed as amended. The award of attorney’s fees is increased to $3,500.00. All costs of this appeal are assessed against Spurgeon.

AFFIRMED AS AMENDED.


author: 1 .PETERS, J.

text:
    Ruby Anna PRITCHARD v. Stacey Vaughn FLOYD.
    No. 2003-1224.
    Court of Appeal of Louisiana, Third Circuit.
    March 3, 2004.
    Steven P. Kendrick, Dorroh & Kendrick, Jena, LA, for Plaintiff/Appellee, Ruby Anna Pritchard.
    Michael H. Davis, Davis & Saybe, Alexandria, LA, for Defendant/Appellant, Stacey Vaughn Floyd.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   1 .PETERS, J.

Stacey Vaughn Floyd appeals a trial court judgment denying him the right to claim a federal income tax dependency exemption for his minor child. For the following reasons, we reverse the trial court judgment and render judgment granting him the federal income tax dependency exemption.

DISCUSSION OF THE RECORD

Ruby Anna Pritchard and Stacey Vaughn Floyd are the parents of Savannah Claire Floyd, born on September 2, 1999. On May 15, 2002, Ms. Pritchard brought an action against Mr. Floyd, requesting that she be awarded custody of Savannah and that Mr. Floyd be ordered to pay child support and to maintain medical insurance on the child. In her petition, Ms. Pritch-ard also requested that she be allowed “to claim the tax credits and exemptions associated with [Savannah]” on her taxes.

On July 15, 2002, the parties entered into a “Joint Custody Plan/Consent Decree” recognizing Ms. Pritchard as Savannah’s custodial parent and awarding Mr. Floyd specific visitation privileges. The consent decree further set Mr. Floyd’s monthly child support obligation at $740.00, or greater than eighty percent of the total monthly child support obligation. While the consent decree contained a paragraph addressing tax considerations, the parties marked through this paragraph and initialed it as not being a part of the stipulation.

Mr. Floyd raised the tax exemption issue by a filing made on December 27, 2002, wherein he asserted that he should be awarded the federal and state income tax dependency exemptions because he was paying in excess of eighty percent of the monthly support obligation owed by both parents. In response, Ms. Pritchard filed a declinatory exception of lack of subject matter jurisdiction, a peremptory exception |2of no cause of action, and a claim that the issue had been preempted by federal law. At a May 29, 2003 hearing, the trial court rendered a judgment awarding Mr. Floyd the state income tax dependency exemption, but awarding Ms. Pritchard the federal income tax dependency exemption. The trial court concluded that Louisiana had the right to regulate the assignment of state tax exemptions, but that federal law prevailed in assigning federal tax exemptions. Mr. Floyd appealed, asserting in his sole assignment of error that the trial court erred in concluding that Mr. Floyd was not entitled to the federal income tax dependency exemption for his support of Savannah.

OPINION

In its reasons for judgment, the trial court denied Ms. Pritchard’s exception of lack of subject matter jurisdiction. However, it is unclear from the record whether the trial court based Ms. Pritchard’s favorable ruling on the exception of no cause of action or whether it construed the preemption claim as that of a peremptory exception of no right of action. However, because we reverse the trial court judgment, we need not resolve that issue.

In support of his claim, Mr. Floyd relies on La.R.S. 9:315.18(C), which provides that “[t]he non-domiciliary party whose child support obligation exceeds seventy percent of the total child support obligation shall be entitled to claim the federal and state tax dependency deductions every year if no arrearages are owed by the obligor.” (Emphasis added.) The record establishes that Mr. Floyd’s monthly support obligation exceeds seventy percent of the total child support obligation, and there is no evidence that he owes past-due support. Notwithstanding the clear language of this statute, the trial court concluded that “the Louisiana legislature has no authority to pass a state law which modifies [26 U.S.C.A. § 152].” That section |3of the Federal Tax Code contains a presumption that the custodial parent is to receive the dependency exemption unless, or until, he or she releases claim to the exemption. The record establishes that Ms. Pritchard never released her claim to that exemption.

In Cafarelli v. C.I.R., 94-265 (U.S.Tax Ct.1994), 67 T.C.M. 3077, both the custodial and noncustodial parent filed exemptions for their minor children. The United States Tax Court explained that the policy behind 26 U.S.C.A. § 152 is administrative in nature and is designed to prevent such conflicts.

The purpose of the amendment to section 152(e)(2) is explained in H.Rept. 98-432 (Part I), at 197-198 (1983). In that report, it is stated that the prior statutory framework for awarding dependency exemptions for children of divorced parents was:
often subjective and [presented] difficult problems of proof and substantiation. The Internal Revenue Service became involved in many disputes between parents who both claim the dependency exemption based on providing support over the applicable thresholds. The Committee [wished] to provide more certainty by allowing the custodial spouse the exemption unless that spouse waives his or her right to claim the exemption. Thus, dependency disputes between parents will be resolved without the involvement of the Internal Revenue Service.
In other words, in enacting the current version of section 152(e), Congress sought to eliminate the role of the IRS as mediator in disputes over which parent was entitled to the dependency exemptions. The present statutory scheme eases or was intended to ease the administrative burden of the IRS.
In order for the noncustodial parent to meet the statutory exception of section 152(e)(2), section 152(e)(2)(A) specifically requires that the custodial parent sign “a written declaration (in such manner and form as the Secretary may by regulations prescribe) that such custodial parent will not claim such child as a dependent”. Pursuant to this congressional directive, temporary regulations were promulgated that provide that “The written declaration may be made on a form to be provided by the Service for this purpose. Once the Service has released the form, any declaration made other than on the official form shall conform to the substance of such form.” Sec. 1.152-4T, Q & A-3, Temporary Income Tax Regs., 49 Fed.Reg. 34459 (Aug. 31, 1984). Form 8332, Release of Claim to Exemption for Child of Divorced or Separated Parents, was available in revised form as of December 1987. The regulations also provide that:
|4The exemption may be released for a single year, for a number of specified years (for example, alternate years), or for all future years, as specified in the declaration. If the exemption is released for more than one year, the original release must be attached to the return of the noncustodial spouse and a copy of such release must be attached to his/her return for each succeeding taxable year for which he/she claims the dependency exemption. (Emphasis added.)

Id.

The federal statute is silent as to whether a state court can require a custodial parent to sign a declaration waiving the dependency exemption. Many states have concluded that “this silence demonstratés Congress’s surpassing indifference to how the exemption is allocated as long as the IRS doesn’t have to do the allocating.” Babka v. Babko, 234 Neb. 674, 452 N.W.2d 286, 288 (1990) (quoting Cross v. Cross, 178 W.Va. 563, 363 S.E.2d 449, 457 (App.1987)).

Since the amendment to the federal tax law, the majority of jurisdictions considering this issue have determined that state courts may exercise their equitable power to allocate dependency exemptions to noncustodial parents. Lincoln v. Lincoln, 155 Ariz. 272, 746 P.2d 13 (1987); Serrano v. Serrano, 213 Conn. 1, 566 A.2d 413 (1989); In re Marriage of Einhorn, 178 Ill.App.3d 212, 127 Ill.Dec. 411, 533 N.E.2d 29 (1988); Hart v. Hart, 774 S.W.2d 455 (Ky.App.1989); Wassif v. Wassif, 77 Md.App. 750, 551 A.2d 935 (1989); Bailey v. Bailey, 27 Mass.App. 502, 540 N.E.2d 187 (1989); Corey v. Corey, 712 S.W.2d 708 (Mo.App.1986); Fudenberg v. Molstad, 390 N.W.2d 19 (Minn.App.1986); In re Marriage of Milesnick, [235 Mont. 88,] 765 P.2d 751 (Mont.1988); Gwodz v. Gwodz, 234 N.J.Super. 56, 560 A.2d 85 (1989); Fleck v. Fleck, 427 N.W.2d 355 (N.D.1988); Hughes v. Hughes, 35 Ohio St.3d 165, 518 N.E.2d 1213 (1988), cert. denied 488 U.S. 846, 109 S.Ct. 124, 102 L.Ed.2d 97; Motes v. Motes, supra[, 786 P.2d 232 (Utah App.1989)]; In re Marriage of Peacock, 54 Wash.App. 12, 771 P.2d 767 (1989); Cross v. Cross, supra; Marriage of Pergolski v. Pergolski, 143 Wis.2d 166, 420 N.W.2d 414 (1988).

Id. at 289.

Louisiana falls within those states which have determined that it may exercise this power and La.R.S. 9:315.18(0 codifies that action. See Walker v. Walker, 02-6065 (La.App. 3 Cir. 12/4/02), 832 So.2d 1098. Additionally, in State, Department of Social Services v. Burkett, 02-1128 (La.App. 5 Cir. 4/29/03), 845 So.2d 1183, the fifth circuit stated that “[a]s we read the statute, the non-domiciliary parent who pays in excess of 70% of the child support obligation is entitled to the tax benefit if there is no question of arrearage, and such privilege is not discretionary with the trial court.” (Emphasis added.)

We find that because 26 U.S.C.A. § 152(e) has been interpreted as purely administrative in nature, state law had not been preempted, and La.R.S. 9:315.18(C) is applicable to the matter before us. Therefore, we find that the trial court erred in denying Mr. Floyd the federal income tax dependency exemption.

DISPOSITION

We reverse the trial court’s judgment granting Ruby Anna Pritchard the federal income tax dependency exemption for her support of Savannah Claire Floyd and render judgment awarding that exemption to Stacey Vaughn Floyd. We assess all costs of this appeal to Ruby Anna Pritchard.

REVERSED AND RENDERED.

      . Two worksheets were attached to the consent decree. One sets the total monthly basic child support obligation owed by both parents at $921.00. The other sets it at $961.00.


author: | JETERS, J.

text:
    Gerard PERRON v. ST. LANDRY PARISH ECONOMIC INDUSTRIAL DEVELOPMENT DISTRICT.
    No. 2003-1061.
    Court of Appeal of Louisiana, Third Circuit.
    March 3, 2004.

      Patrick C. Morrow, James S. Gates, Morrow, Morrow, Ryan & Bassett, Opel-ousas, LA, for PlaintifjyAppellee, Gerard Perron.
    Dannie P. Garrett, III, Baton Rouge, LA, for Defendant/Appellant, St. Landry Parish Economic Industrial Development District.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   | JETERS, J.

In this workers’ compensation case, St. Landry Parish Economic Industrial Development District (St. Landry) appeals a judgment awarding its employee, Gerard Perron, penalties and attorney fees for its failure to timely pay certain physical therapy bills. For the following reasons, we affirm.

DISCUSSION OF THE RECORD

On January 26, 2001, Mr. Perron was injured in a motor vehicle accident that occurred in the course and scope of his employment with St. Landry. As a result, he incurred various medical expenses. On December 12, 2001, Mr. Perron filed a 1008 claim seeking payment of those expenses.

Thereafter, on July 2, 2002, September 8, 2002, and November 8, 2002, Mr. Perron made written demand on St. Landry through its third-party administrator, Management Services USA (Management Services), for the payment of physical therapy . expenses with LCM Physical Therapy (LCM). St. Landry acknowledged receipt of the LCM bills and did not dispute either the reasonableness or the necessity of those bills. Rather, St. Landry did not immediately pay the bills because they were not “on the proper form,” specifically an “HCFA 1500” form.

Carolyn Domango, a claims adjuster for Management Services, testified that medical bills are sent to Rehab Review, a separate entity that processes the bills for Management Services. According to Ms. Domango, when the LCM bills were sent to Rehab Review, it returned the bills and requested that they be submitted on the HCFA 1500 form. However, no correspondence or other documentation to that effect was submitted into evidence regarding LCM. Not until February of 2003 did Ms. Domango personally contact someone with LCM and request completion of the HCFA 1500 forms. At that time, LCM completed the forms and submitted the bills |2as requested. On February 14, 2003, and March 18, 2003, St. Landry, through Management Services, paid the LCM bills.

Although the LCM bills were finally paid, the case proceeded to trial on the issue of penalties and attorney fees for the failure to timely pay them. The WCJ rendered judgment ordering St. Landry to pay penalties in the amount of $2,000.00 and attorney fees in the amount of $3,500.00. St. Landry has appealed, asserting the following assignments of error:

1. The Trial Court improperly relied upon an unpublished opinion.
2. The Trial Court failed to apply the law as set forth in the most recent reported appellate decision of Kaiser v. Western-Southern Insurance Company, 01-1393 (La.App. 5th Cir.5/15/02) 821 So.2d 52, which holds that penalties and attorney fees for failure to timely pay medical benefits are not appropriate when the medical bills are not properly submitted.
3. The Trial Court failed to follow the controlling Third Circuit opinion of Mitchell v. Dixie Roofing and Sheet Metal Company, 95-288 (La.App. 3d Cir.10/4/95) 663 So.2d 222, which holds that an award of penalties and attorney fees to a claimant are [sic] not appropriate if the claimant suffered no ill effects from the failure to timely pay healthcare providers.

Mr. Perron has requested in his appellee brief additional attorney fees for work done on appeal.

OPINION

Louisiana Revised Statutes 23:1201(E)- provides: “Medical benefits payable under this Chapter shall be paid within sixty days after the employer or insurer receives written notice thereof.” The employer is subject to the payment of penalties and attorney fees for the failure to timely pay medical benefits unless the claim is reasonably controverted or the nonpayment results from conditions over which the employer had no control. La. R.S. 23:1201(F)(2).

| sIt is undisputed that St. Landry received written notice of the LCM bills and a demand for payment, yet it did not pay those bills within sixty days of receipt thereof. St. Landry urges that its sole reason for failing to do so was LCM’s lack of compliance with Louisiana Administrative Code 40:5153(C), which provides:

Health Care providers are required to report treatment to the carrier/self insured employer on the:
1.HCFA 1500 form;
2. UB-92; or
3. ADA — Dental Form.

St. Landry contends that Louisiana Administrative Code 40:5153(C) is mandatory and that the WCJ improperly relied on an unpublished opinion to hold otherwise. St. Landry requests that the judgment at least be vacated on that ground alone. Further, St. Landry contends that the WCJ erred in failing to apply Kaiser v. Western-Southern Insurance Co., 01-1393 (La.App. 5 Cir. 5/15/02), 821 So.2d 52, to hold that penalties and attorney fees for failure to timely pay medical benefits are not appropriate where the medical bills are not properly submitted.

In Kaiser, the WCJ denied certain medical expenses to the employee on the basis that there was no evidence that the expenses were connected to the work injury at issue and on the basis that the expenses were not presented to the employer on the mandatory HCFA 1500 form. The fifth circuit found “no manifest error in the [WCJ’s] ruling that the [employee] is not entitled to reimbursement for those unsupported or improperly submitted medical bills.” Id. at 60.

On the other hand, the WCJ in the present case relied in part on a case that, at the time of his reasons for judgment, had not yet been released for publication in the permanent law reports such that it was subject to revision or withdrawal. A designation that an opinion has not yet been released for publication in the permanent |4law reports is not tantamount to a designation that the opinion is not for publication. Indeed, the case relied on by the WCJ is for publication as follows: Nuzum v. TCI Turner Corp., 02-1232 (La.App. 1 Cir. 3/28/03), 857 So.2d 520.

In Nuzum, the WCJ found that the employer did not have grounds to require completion of an HCFA 1500 form prior to forwarding payment for numerous medical bills, which resulted in the untimely payment of those bills, and therefore awarded penalties and attorney fees. On appeal by the employer, the first circuit concluded:

[T]he Workers’ Compensation Act does not provide for a specific procedure for how employers receive bills. The Act does refer to the Louisiana Administrative Code regarding the reimbursement schedule, but the Louisiana Administrative Code does not control in terms of procedure. Whereas in Kaiser, the fifth circuit referred to the form as a required form, other Louisiana jurisprudence [Spencer v. Gaylord Container Corp., 96-1230, p. 15 (LaApp. 1 Cir. 3/27/97), 693 So.2d 818, 829 ] has allowed written notice, as required under La. R.S. 23:1201(E), to be any notice, such as receiving a medical bill from the worker himself or a written request from his counsel. As a result, we decline to find that under the Workers’ Compensation Act, an employer’s sixty day time period does not begin to run until it receives an HCFA form from the physician.

Id. at 525.

Thus, the first circuit affirmed the award of penalties and attorney fees, determining in part that the employer could not “usé the fact that they did not receive HCFA 1500 forms as a reasonable basis for not paying medical bills, when they received written notice through counsel.” Id. at 526.

The WCJ in the instant case additionally relied on Everson v. Kaiser Aluminum & Chemical Corp., 00-1264 (LaApp. 5 Cir. 3/28/01), 783 So.2d 544, in which the employer did not pay certain medical expenses, maintaining that it had made numerous attempts to obtain HCFA 1500 forms from certain physicians but that the | ^physicians would not submit the forms. The fifth circuit affirmed an award of penalties and attorney fees for the employer’s failure to pay. those medical expenses, noting: “[W]e are not convinced that it is [the employee’s] or her attorney’s responsibility to acquire the appropriate billing information in this case, especially in light of the fact that [the employer] had medical authorizations that allowed them to obtain the requested information.” Id. at 548.

We agree with the holdings in Nuzum and Everson. We additionally note that, in the instant case, the LCM bills submitted to St. Landry already contained much of the information required fay the HCFA 1500 form pursuant to Louisiana Administrative Code 40:5111(C), such as Mr. Per-ron’s full name and address; the correct date of injury; the diagnosis codes; the dates of the visits, the services rendered, and the charges for the services; LCM’s complete name and address; and LCM’s identification number. The bills did not contain Mr. Perron’s social security number, ;St. Landry’s name and address, the name of St. Landry’s third-party administrator for the claim, and the date the disability began. While Louisiana Administrative Code 40:5111(C) provides for the inclusion of such information as well, clearly St. Landry did not need LCM to provide St. Landry with St. Landry’s and its third-party administrator’s own information. Further, St. Landry had Mr. Per-ron’s social security number and knew the date of the injury (disability is not at issue) as demonstrated on its own explanation-of-review form. Having all of the information required and not disputing the reasonableness or the necessity of the LCM bills, St. Landry cannot be heard to complain that its failure to timely pay the "medical bills resulted from conditions over which it had no control. To hold otherwise under the facts of this case would be to exalt form over substance.

1 ^Nevertheless, St. Landry contends that, because there is no evidence that Mr. Perron suffered any hardship or denial of benefits as a result of its untimely payment of the LCM bills, he should not be allowed to collect penalties and attorney fees, citing Mitchell v. Dixie Roofing & Sheet Metal Co., 95-288 (La.App. 3 Cir. 10/4/95), 663 So.2d 222.

In Mitchell, we reversed an award of attorney fees for the employer’s failure to pay medical expenses. While recognizing that the employer did not deny that it owed payment for the medical expenses incurred, we found that the employee had never been denied any medical care for which the expenses were incurred and that the healthcare providers were the only parties aggrieved by the employer’s failure to timely pay the medical bills. We pointed out that the employee had not had to collect money for the medical expenses because he had not had to pay for them and that he had not been sued or harassed by the healthcare providers for the employer’s failure to pay the medical expenses. We explained: “Awarding attorney’s fees in this case does not help the injured worker, makes no contribution to the purpose of the worker’s compensation law or the improvement of its administration, and does not serve the ends of justice.” Id. at 226. Thus, we reversed the award of attorney fees for the failure to pay medical expenses.

However, in Ware v. Allen Parish School Board, 02-1011, p. 17 (La.App. 3 Cir. 5/21/03), 854 So.2d 374, 384, we reversed the WCJ’s failure to award penalties and attorney fees in connection with a claim for medical benefits where the WCJ found that the employee “was neither denied treatment nor dunned for payment by the medical provider.” In so doing, we acknowledged our prior holding in Mitchell, 663 So.2d 222, but noted:

17However, in a later supreme court case, Daugherty v. Domino’s Pizza, 95-1394, p. 14 (La.5/21/96), 674 So.2d 947, 956, the court stated:
Where the fact of late payment is uncontradicted and an employer fails to show that the late payment resulted from conditions over which the employer had no control or that the employee’s right to have the bill paid by the employer is controverted, La.R.S. 23:1201 and 1201.2[] mandate an award of penalties and attorney’s fees. See, e.g. LaHaye v. Westmoreland Casualty Co., 509 So.2d 748 (La.App. 3rd Cir.1987).

Thus, we awarded penalties and attorney fees where the employer did not show that its late payment of medicals was due to conditions beyond its control.

Indeed, La.R.S. 23:1201 does not contain a provision requiring prejudice or actual loss to the employee. Thus, we find no error in the WCJ’s award of penalties and attorney fees for the untimely payment of the LCM medical bills, and we therefore affirm.

Finally, Mr. Perron requests additional attorney fees for work done on appeal. However, while he has asserted a claim for such in his appellee brief, we do not have before us an answer to the appeal by Mr. Perron. Thus, we are precluded from reviewing Mr. Perron’s request for additional attorney fees. See Ben v. Holtrachem, Inc., 00-635 (La.App. 3 Cir. 11/2/00), 772 So.2d 326.

DISPOSITION

For the foregoing reasons, we affirm the judgment below in all respects. We assess costs of this appeal to St. Landry Parish Economic Industrial Development District.

AFFIRMED.

      . We note that La.R.S. 23:1201.2 was repealed by 2003 La. Acts No. 1204, § 2. Its substance now appears in La.R.S. 23:1201(1).


author: | THIBODEAUX, Chief Judge. _jjAMY, J.,

text:
    Floyd BOONE, Jr. v. MID-STATE MARKETING.
    No. 2003-1032.
    Court of Appeal of Louisiana, Third Circuit.
    March 3, 2004.

      Christopher Jude Roy, Jr., Alexandria, LA, for Plaintiff/Appellee, Floyd Boone, Jr.
    Douglas Jay Cochran, McKay, Williamson, Lutgring & Cochran, Baton Rouge, LA, for Defendant/Appellant, Mid-State Marketing.
    Court composed of ULYSSES GENE THIBODEAUX, C.J., MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   | THIBODEAUX, Chief Judge.

In this workers’ compensation case, the defendant, Mid-State Marketing (MSM), appeals the judgment of the Office of Workers’ Compensation (OWC) finding that the plaintiff, Floyd Boone, Jr., proved that he was temporarily and totally disabled as a result of his work-related accident and that MSM’s handling of Mr. Boone’s claim was arbitrary, capricious and unreasonable. The OWC awarded Mr. Boone several items of compensation and penalties, including temporary total disability benefits (TTD). We agree with the OWC and affirm the judgment. We also award an additional $2,500.00 in attorney fees for work done on appeal.

I.

ISSUES

The issues on appeal are:

(1) Was the workers’ compensation judge (WCJ) manifestly erroneous in deciding that Mr. Boone was not foreclosed from obtaining relief because of an alleged violation of La.R.S. 23:1208(A);

(2) Did Mr. Boone’s failure to plead attorney fees and penalties in the answer foreclose an award of attorney fees and penalties;

(3) Was the WCJ manifestly erroneous in deciding that Mr. Boone was entitled to temporary total disability benefits; and,

(4) Was the WCJ manifestly erroneous in finding that Mr. Boone suffered a mental injury which was caused by his workplace accident.

J¿L

FACTS

Mr. Boone was employed as a delivery man and a route salesman by Mid-State Marketing, a Borden’s milk distributor. On July 25, 2001, he was delivering a five gallon bag of milk to a nursing home and placing it on a shelf when he felt something “pop” in his back.

He testified that he informed Terry Smith, a supervisor, but didn’t complete an accident report. On August 9, 2001, Mr. Boone reported the accident to his immediate supervisor, Mr. Fitzhugh Crockett. An accident report was filled out and his employer sent him to Louisiana Occupational Health Services (LOHS), where he saw Dr. Brian Jobe. On August 13, Dr. Jobe diagnosed a back strain with some radiculopathy, but allowed Mr. Boone to continue to work.

Mr. Boone testified that he subsequently asked his employer to see another doctor of his choice. Mr. Crockett told Mr. Boone he could do so, but he would have to use his own health insurance since he was not going back to LOHS. Mr. Boone proceeded to use his own health insurance and went to see Dr. Stephen Downs, his family doctor, in October and November of 2001.

On the October and November visits, Mr. Boone reported to Dr. Downs that he had low back pain and groin pain. Mr. Boone was diagnosed with a right groin strain. Nevertheless, he continued to work for the employer.

On February 5, 2002, Mr. Boone returned to LOHS and was examined by Dr. Jobe. The purpose of the examination was to obtain a commercial drivers license (CDL). Mr. Boone completed and signed a questionnaire form for Dr. Jobe. He testified that all of the information he provided to Dr. Jobe may not have been true because he wanted to pass the examination to get the CDL. He indicated on the | ..¡signed form that he had suffered no illness or injury in the last five years and that he had not suffered any spinal injury or disease or chronic low back pain.

On March 5, 2002, Mr. Boone went to the Rapides Regional Medical Center (RRMC) for treatment. He testified that the pain had worsened to the extent that he had to seek care for it. In those records, he indicated that he had a fall one month earlier and continued to have low back pain with pain radiating down his left leg. Mr. Boone testified that he might have indicated that he had a fall only as a means to obtain treatment.

After the RRMC visit, Mr. Boone visited Dr. Downs again. Dr. Downs ordered an MRI on his low back, which was positive for a ruptured lumbar disk on the left side. Once Dr. Downs knew that Boone had a ruptured disc, he gave work restrictions to Boone to not lift anything over ten pounds. Mr. Boone brought those restrictions to the attention of his employer, who informed him that there were no light-duty jobs available, and he would no longer be able to work. Mr. Boone did not return to work.

On March 15, 2002, Mr. Boone contacted Louisiana Restaurant Association Self Insurers Fund (LRASIF), MSM’s insurer, to see whether it would pay workers’ compensation benefits since Dr. Wilson stated that he could no longer perform his usual work activities. LRASIF did not pay Mr. Boone indemnity benefits and did not authorize or pay for his medical treatment. Mr. Boone file a disputed claim for compensation with the Office of Workers’ Compensation (OWC) on May 23, 2002 when his claims were denied by LRASIF.

After the MRI, Dr. Downs scheduled Mr. Boone to see Dr. Katz for epidural steroid injections. After the epidural steroid injections failed, Mr. Boone was referred to Dr. Andrew Wilson, a local neurosurgeon, for further treatment. On | ¿April 24, 2002, Mr. Boone underwent surgery by Dr. Wilson to repair the ruptured disk.

The case was heard before the OWC on January 16, 2002. On March 11, 2003, the WCJ issued judgment in favor of Mr. Boone on all issues. He also awarded penalties and attorney fees finding LRA-SIF’s conduct arbitrary and capricious.

The WCJ awarded Mr. Boone TTD benefits in the amount of $352.77, mileage expenses of $215.36 and reimbursement of all out-of-pocket medical expenses. He ordered that Mr. Boone be allowed to see a neurosurgeon, namely Dr. Andrew Wilson, and a psychologist of his choice and that an FCE be performed on Mr. Boone. He also awarded the following penalties: a $2,000.00 penalty for failure to pay his- out-of-pocket medical expenses; a $2,000.00 penalty for failure to pay indemnity benefits; a $2,000.00 penalty for failure to timely pay mileage benefits; a $2,000.00 penalty for failure to provide vocational rehabilitation; a $2,000.00 penalty for failure to authorize a treating physician of Mr. Boone’s choice; a $2,000.00 penalty for failure to provide treatment and a physician for psychological treatment. He awarded attorney fees of $10,000.00.

The LRASIF appealed. Mr. Boone answered the appeal seeking additional penalties and attorney fees for the appeal of his case and for an award of cost-for the medical depositions and stenographer costs submitted at trial.

III.

LAW AND DISCUSSION

Standard of Review

“Factual findings in a workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review.” Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840, p. 7(La.7/l/97), 696 So.2d 551, 556. |BIn applying the manifest error-clearly wrong standard, the appellate court must determine “not whether the trier of fact was right or wrong, but-whether the fact finder’s conclusion was a reasonable one.” Stobart v. State, Dep’t of Transp. & Dev., 617 So.2d 880, 882 (La.1993). Where'there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or -clearly wrong. Id. Accordingly, if the trier of fact’s “findings are reasonable in light of the record reviewed in its .entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

Fraud/Misrepresentation

The LRASIF argues that Mr. Boone made inconsistent statements to medical personnel that amounted to fraud bringing him under the ambit of La.R.S. 23:1208.

Louisiana Revised Statutes 23:1208(A) provides, “It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.” Pursuant to Resweber v. Haroil Constr. Co., 94-2708 (La.9/5/95), 660 So.2d 7, there must be a false statement or statements willfully made for the purpose of obtaining workers’ compensation benefits.

Whether Mr. Boone made false statements for the purpose of obtaining workers’ compensation benefits is a disputed issue in this case. However, fraud/misrepreséntation was not plead by the defendant under La.Code Civ.P. art. 1005, which states: “the answer shall set forth affirmatively ... fraud ... and any other matter constituting an affirmative defense.” Paragraph 12 of the defendant’s ^answer only addressed set-offs and credits; it did not mention misrepresentation or fraud.

Furthermore, the record discloses that the defendant specifically stated that “a 1208 has not been asserted.” This statement amounted to a judicial admission. See La.Civ.Code. art. 1853. “A judicial admission or confession is a party’s express acknowledgment of the correctness of the fact or the act charged against him by his adversary. Such a confession is designed to dispense with evidence and has the effect of withdrawing the subject matter of the confession from issue.” Suc cession of Poland, 34,291, p. 4 (La.App. 2 Cir. 4/4/01), 784 So.2d 701, 704.

Inasmuch as the defendant did not address the issue of fraud/misrepresentation in its answer and stated at the beginning of the trial that it was not asserting this affirmative defense it is foreclosed from arguing the merits of this defense.

Attorney Fees and Penalties

The LRASIF asserts that Mr. Boone did not specifically allege attorney fees and penalties in his claim for compensation; thus, he should not have been awarded them. The defendant claims that statutory penalties and attorney fees are items of special damages which must be specifically alleged.

Louisiana Code of Civil Procedure Article 861 states that, “[w]hen items of special damage are claimed, they shall be specifically alleged.” Although some cases have ruled that, pursuant to La. Code. Civ.P. art. 861, attorney fees and penalties are items of special damages and thus must be specifically alleged, we decline to follow this line of cases. See Smith v. Howell Indus., Inc., 579 So.2d 1236 (La.App. 3 Cir.1991); Mix v. Mougeot, 446 So.2d 1352 (La.App. 1 Cir.1984). Damages are provided to make the victim whole. On the other hand, penalties and attorney fees |7are punitive in a nature and are not provided to make the victim whole. Rather, the primary purpose is to deter the irresponsible handling of workers’ compensation claims. See Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41; Nation v. D & J Tire, Inc., 31,345 (La.App. 2 Cir. 12/9/98), 722 So.2d 364; Jeansonne v. Ameñcan Native Const., 97-1228 (La.App. 3 Cir. 3/6/98), 710 So.2d 306; Sharp v. Daigre, 545 So.2d 1063 (La.App. 1 Cir.), writ granted, 550 So.2d 640 (La.1989). Special damages usually include items such as medical costs, loss wages and loss of earning capacity. See Dorvilier v. Gagliano, 02-2765 (La.App. 4 Cir. 8/27/03), 855 So.2d 393; Gagnard v. Baldridge, 612 So.2d 732 (La.1993). Because penalties and attorney fees are punitive in nature, they are not special damages.

Even if penalties and attorney fees are considered special damages, La.Code. Civ.P. art. 861 is still not applicable to the facts of this case. Mr. Boone claims that this case is similar to Haynes v. Lee White Wrecker Service., 92-0523 (La.App. 4 Cir.1993), 612 So.2d 944. The court in Haynes did not foreclose penalties and attorney fees even though the claimant did not specifically allege them. The court reasoned that the claimant was not represented by an attorney when he filled out the 1008 and, thus, should not be penalized for not requesting this type of award. In addition, the court concluded that the claimant alleged facts in his petition which supported a claim for penalties and attorney fees, which gave the employer notice that arbitrary and capricious behavior on his part was an issue.

In this case, Mr. Boone was represented by an attorney. However, Mr. Boone, not his attorney, filed the 1008 form. In addition, Mr. Boone’s letter to the adjuster and pretrial memorandum gave the employer notice that arbitrary and capricious behavior on its part was an issue and notified the defendant that penalties and attorney fees were being sought.

Moreover, La.Code Civ.P. art. 862 provides: “a final judgement shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief.” Moreover, Louisiana Revised Statutes 23:1201 provides that penalties and fees shall be awarded if an appropriate violation occurs and is proven. In this case, the ,WCJ granted relief to Mr. Boone and awarded him penalties and attorney fees. Under La.Code Civ.P. art 862, this award was valid even though it was not prayed for in the petition.

The defendant further claims that penalties for failure to provide vocational rehabilitation are not legally award-able. “Penalties and attorney fees are recoverable under La.R.S. 23:1201(F) if the employer or insurer fails to commence payments of benefits timely or to pay continued installments or medical benefits timely, unless the claim is reasonably controverted.” Canizaro v. Tangipahoa Parish School System, 02-1913, p. 4 (La.App. 1 Cir. 8/20/03), 853 So.2d 741, 744. “Attorney fees are recoverable under La.R.S. 23:1201.2 if the employer or insurer arbitrarily discontinues payment of benefits due.” Id.

The supreme court has held that vocational rehabilitation is a “claim due” under La.R.S. 23:1201.2. Haynes v. Williams Fence and Aluminum, 02-0442 (La.4/21/03), 851 So.2d 917. “Thus, an employee is entitled to attorney fees incurred during the prosecution of a claim against her employer for vocational rehabilitation services after those services have been arbitrarily and capriciously denied.” Canizaro, 853 So.2d at 745.

However, the law is unclear as to whether penalties are available under La.R.S. 23:1201(F) for failure to provide vocational rehabilitation services. The |¡)WCJ provided a penalty for the defendant’s failure to offer vocational rehabilitation or appoint a vocational rehabilitation specialist. Under La.R.S. 23:1226(A), an employee is entitled to prompt rehabilitation services when the employee has suffered an injury that precludes her from earning wages equal to wages earned prior to the injury. If attorney fees are available for discontinuance of rehabilitation, then penalties should also be available for failure to commence vocational rehabilitation. Both La. R.S. 23:1201(F) and La.R.S. 23:1201.2 are penal in nature and provide for imposition of penalties and attorney fees to discourage indifference and undesirable conduct by employers and insurers. See Williams, 737 So.2d 41.

Furthermore, many cases in the Third Circuit have held that sham rehabilitation subjects one to penalties and attorney fees. Sham rehabilitation is the functional equivalent of no rehabilitation. Thus, if sham rehabilitation subjects one to attorney fees and penalties, then failure to provide rehabilitation also subjects one to penalties and attorney fees.

The defendant also claims that' the WCJ erred in awarding penalties for failure to approve a neurosurgeon and psychological care. In Authement v. Shappert Engineering, 02-1631(La.2/25/03), 840 So.2d 1181, the supreme court recognized that failure to authorize comes under La.R.S. 23:1203(A). Under La.R.S. 23:1203(A), the employer is obligated to “furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of this state as legal.... ” Thus, a failure to authorize treatment can result in the imposition of penalties and attorney fees except | inwhen the claim is reasonably controverted. La.R.S. 23:1201(F)(2); Authement, 840 So.2d 1181.

In this case, the defendant failed to authorize a neurosurgeon and psychological treatment for Mr. Boone. “[T]o reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base his denial of benefits.” Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La.12/01/98), 721 So.2d 885, 890. The defendant provided insufficient evidence to controvert Mr. Boone’s claims. The defendant only claimed that it did not believe that Mr. Boone’s back problems were related to his accident given the manner of medical treatment, the reporting of the incident in an untimely manner, and the lack of credibility during the investigation of the matter. However, an unjustified belief that an injury did not result from a work-related accident does not excuse the failure to pay. Nelson v. Roadway Express, 588 So.2d 350 (La.1991).

With regard to the neurosurgeon, the WCJ stated in its oral reasons for judgment “they [the doctors] all testified that they felt he was straightforward and was doing his best in telling them what he could about his situation. Everything eor-roborated-all the medical records and all the history corroborated the incident on July 25th of 2001.”

With regard to the psychological care, he stated:

After his surgery Mr. Boone never returned to work. His testimony and that of his former girlfriend established that he had no depression problems prior to his accident, that subsequent to the accident he began feeling worthless because he was not bringing home any money and that he sought psychiatric or psychological help for his distressed and depressed situation.

The WCJ determined that there was a lack of a sufficient and complete investigation performed on behalf of the employer and that Mr. Boone was entitled _bto reeover Penalties and attorney fees, “The determination of whether an employ-er or insurer should be cast ^ Penalties and attorney fees in a workers’ compensation action is essentially a question of fact.” Authement, 840 So.2d at 1188. Factual findings are subject to the manifest error or clearly wrong standard of review. Banks, 696 So.2d 551.

The record available to the WCJ contained sufficient factual information from which to conclude the defendant failed to authorize medical treatment and psychological care. This failure to authorize amounted to a failure to furnish treatment under La.R.S. 2S:1203(A); thus we cannot say that the WCJ was manifestly erroneous in awarding penalties and attorney fees.

Temporary Total Disability Entitlement

The LRASIF argues that Mr. Boone did not satisfy his burden of proof. It claims that Mr. Boone recovered from the July 25, 2001 workplace accident and that a second accident, prior to his March emergency room visit at RRMC, was the cause of his injuries.

In a workers’ compensation case, an injured employee has the burden of proving by a preponderance of the evidence that his employment accident caused the alleged disability. Martin v. Red Simpson, Inc., 94-817 (La.App. 3 Cir. 2/1/95), 649 So.2d 1155. Mr. Boone bears the burden of proving by a preponderance of the evidence the causal relationship between his herniated disk and the accident of July 25, 2001.

In order for an employee to recover, it must be determined that the employment somehow caused or contributed to the disability, but it is not necessary that the exact cause be found. Peloquin v. Eunice News, 98-1524 (La.App. 3 Cir. 4/28/99), 737 So.2d 132, writ denied, 99-1573 (La.9/17/99), 747 So.2d 563. “[T]he | ^element of causation is satisfied if the employee’s work-related accident was a factor in bringing about the employee’s disabled status.” Rideaux v. Franklin Nursing Home, 95-240, p. 5 (La.App. 3 Cir. 11/22/95), 664 So.2d 750, 755, writ denied, 95-3093 (La.2/16/96), 667 So.2d 1058.

The defendant introduced evidence that Mr. Boone had fallen from a third floor balcony before his March visit to RRMC. However, medical records demonstrate that he only had chest and rib pains, and no injuries associated with his back at that time. Testimony also revealed that sometime in November of 2001, Mr. Boone may have slipped in the back of his milk truck. However, Mr. Boone didn’t report any problem and said that he didn’t have any injury from that. The WCJ was not persuaded by this evidence and stated “[s]pe-cifically each and every doctor, including Doctor Allen Joseph which was the employer’s choice of doctor, even aware of all these other records, all concluded that the incident in July 25th of 2001 was a factor in bringing about the herniated disk, if not the factor for the disk.”

The trial court’s decision as to whether the testimony is credible or not is a factual determination not to be disturbed on review unless clearly wrong or in absence of showing manifest error. Gonzales v. Babco Farm, Inc., 535 So.2d 822 (La.App. 2 Cir.), writ denied, 536 So.2d 1200 (La.1988). The WCJ relied on the testimony of Mr. Boone and his doctors in finding that his July 25, 2001 incident was a factor in bringing about his injuries. We cannot say that the WCJ’s finding was manifestly erroneous.

Mental Injury

The defendant argues, in its final assignment of error, that Mr. Boone did not satisfy by clear and convincing evidence his burden of proof for mental injury resulting from a physical injury under La.R.S. 23:1021(7)(c).

h:Jn order to obtain compensation benefits for a mental injury caused by a physical injury, (1) the claimant must prove by clear and convincing evidence that the physical injury caused the mental injury, (2) the mental injury must be diagnosed by a licensed psychiatrist or psychologist, and (3) the diagnosis must meet the most current criteria established by the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders.

Howell v. Serv. Merch. Co., Inc., 95-79, p. 5 (La.App. 3 Cir. 8/9/95), 663 So.2d 96, 99.

“To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable; that is, much more probable than its nonexistence.” Bundren v. Affiliated Nursing Homes, Inc., 94-808, p. 2 (La.App. 3 Cir. 2/1/95), 649 So.2d 1177, 1179. “A claimant’s own testimony that he experienced debilitating depression after a work-related back injury, combined with the testimony of family members and a psychologist, can constitute clear and convincing evidence to support a finding that the claimant has suffered a mental injury as a result of the back injury.” Howell, 663 So.2d at 100.

Mr. Boone’s former girlfriend testified that he had become extremely depressed because of the work-related injury and increased pain. She stated that she had not seen him this way prior to his injury, and that after the injury, his mental state decreased. Mr. Boone testified that he had become extremely depressed as a result of his inability to work and the pain he was having. In addition, Mr. Boone submitted records from Dr. Ben-ghozi and the Alexandria Wellness Center reflecting his diagnosis of depression.

The defendant argues that Mr. Boone cannot recover for his mental injury because he failed to prove that Dr. Ben-ghozfs diagnosis meets the criteria as established in the current edition of the Diagnostic and Statistical Manual of Mental Disorders presented by the American Psychiatric Association, as required by |uLa.R.S. 23:1021(7)(d). However, Howell, 663 So.2d at 100, noted that this technicality is not dispositive.

In this case, as in Hoioell, there are several factors that lead to the conclusion that Mr. Boone’s diagnosis was valid: (1) Mr. Boone was diagnosed with depression and chronic pain syndrome by Dr. Bengho-zi; (2) this diagnosis was corroborated by the Alexandria Wellness Center; (3) before rendering a diagnosis, each doctor questioned Mr. Boone about his medical history; (4) before rendering his diagnosis, Dr. Benghozi conducted a standard clinical examination; and (5) no evidence in the record suggests that this diagnosis is unreliable.

Mr. Boone’s own testimony, the testimony of his girlfriend, and the diagnosis of Dr. Benghozi and The Alexandra Wellness Center provided sufficient evidence for Mr. Boone to overcome his burden of proof. Thus, we cannot say that the WCJ’s finding that Mr. Boone suffered a mental injury which was caused by the workplace accident was manifestly erroneous.

IV.

CONCLUSION

For the above reasons, the judgment appealed from is affirmed. We award an additional attorney fees of $2,500.00 on appeal. Costs of this appeal are assessed to Mid-State Marketing.

AFFIRMED.

AMY, J., concurs in part and dissents in part and assigns written reasons.

_jjAMY, J.,

concurring in part, dissenting in part.

I join in the majority’s affirmation of the award of temporary total disability benefits. I also agree that the employer’s failure to raise the defense of La.R.S. 23:1208 below precludes the assertion of that defense on appeal. With regard to the employer’s remaining assignments, however, I conclude that a reversal is warranted.

First, I find that the workers’ compensation judge erred in awarding penalties and attorney’s fees as these items were not specifically alleged. Although penalties and attorney’s fees are punitive in nature, I conclude that they are “items of special damages” within the meaning of La.Code Civ.P. art. 861. See Box v. City of Baton Rouge, 02-0198 (La.App. 1 Cir. 1/15/03), 846 So.2d 13; Coscino v. Louisiana State Boxing and Wrestling Com’n, 97-2733 (La.App. 4 Cir. 9/9/98), 718 So.2d 1016; Dennis v. Allstate Ins. Co., 94-305 (La.App. 5 Cir. 10/25/94), 645 So.2d 763; Smith v. Howell Industries, Inc., 579 So.2d 1236 (La.App. 3 Cir.1991); Mix v. Mougeot, 446 So.2d 1352 (La.App. 1 Cir.1984). Furthermore, I note that the employer objected to the expansion of the pleadings in this regard at the beginning of the hearing. Thus, I conclude that the determination that the pleadings were expanded as to the request for penalties and attorney’s fees was inappropriate under La.Code Civ.P. art. 1154. As I find a reversal of the award of penalties and attorney’s fees appropriate, I do not reach the merits of each individual penalty awarded.

|J would also reverse the award for mental injuries as I find the evidence offered was insufficient to meet the claimant’s burden of establishing that it arose out of the employment related physical injury by clear and convincing evidence. See La.R.S. 23:1021(7)(c). According to La.R.S. 23:1021(7)(d), a mental injury/illness is not compensable absent diagnosis “by a licensed psychiatrist or psychologist and the diagnosis of the condition meets the criteria as established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders presented by the American Psychiatric Association.” My review of the record indicates that the claimant’s evidence is insufficiently particularized to satisfy the requirements of the statute.

For these reasons, I concur in part, dissent in part.

      . See Dubois v. Louisiana Forest Indus., Inc., 98-895 (La.App. 3 Cir. 12/9/98), 722 So.2d 409, writ denied, 99-0049, (La.2/26/99), 738 So.2d 586; Chelette v. Riverwood Int’l USA, Inc., 03-1483 (La. 10/17/03), 858 So.2d 412.

      . See Leger v. Young Broadcasting, Inc., 98-572 (La.App. 3 Cir. 10/28/98), 720 So.2d 817, writ denied, 98-2953 (La.2/5/99), 738 So.2d 1; Britton v. City of Natchitoches, 97-1038 (La.App. 3 Cir. 2/11/98), 707 So.2d 142, writ denied, 98-1203 (La.6/26/98), 719 So.2d 1057.


author: | WOODARD, Judge.

text:
    Randy ALVIS and E.G. Alvis v. CIT GROUP EQUIPMENT FINANCING, INC., et al.
    No. 2003-1364.
    Court of Appeal of Louisiana, Third Circuit.
    March 3, 2004.

      Charles Raymond Whitehead, Jr., Whitehead Law Offices, Natchitoches, LA, for Plaintiffs/Appellants: Randy Alvis and E.G. Alvis.
    William Daniel Dyess, Many, LA, for Defendant/Appellee: Clauriste Byles.
    Court composed of BILLIE COLOMBARO WOODARD, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
   | WOODARD, Judge.

The Plaintiffs appeal the trial court’s dismissal of Mr. Clauriste Byles, individually, on an exception of no cause of action. We reverse the trial court’s ruling and remand the case for further proceedings.

The Plaintiffs, Mr. Randy Alvis and Mr. E.G. Alvis, run a logging operation in Bon Weir, Texas. In October 2002, they went to Byles Welding and Tractor Company, Inc. (Byles), in Many, Louisiana, to purchase a new log skidder. After a period of negotiation, they purchased the skidder, manufactured by Allied. They agreed on a purchase price of $157,000.00 and received a trade-in allowance of $12,000.00, leaving a balance of $145,000.00 due, which Byles arranged for them to finance through the CIT Group/Equipment Financing, Inc. (CIT). The Plaintiffs signed a security agreement with CIT.

However, soon after the sale, the Plaintiffs allege that they received informal information, concerning Byles’ business practices, which prompted them to further investigate their new purchase. Specifically, they contacted CIT for additional information. CIT contacted Allied, the manufacturer, and learned that the skidder had been delivered to Byles’ business in May of 1997, making it six years old at the time Byles sold it to the Plaintiffs.

The Plaintiffs never took physical possession of the skidder. Rather, it has remained on Byles’ business premises. Plaintiffs contend that Mr. Clauriste Byles, President and CEO of Byles, represented the skidder as new, and they would not have purchased it had they known that it was six years old. Plaintiffs allege that the age of the skidder constitutes a redhi-bitory defect. Accordingly, they filed suit against Byles to rescind the sale and against CIT to cancel the transfer and finance document. They, also, sued Mr. Clauriste Byles, as the corporate officer and representative for Byles in this particular transaction.

Plaintiffs allege actions in redhibition, intentional misrepresentations, and unfair trade practices. Mr. Clauriste Byles sought dismissal in the trial court because, he argues, the law does not impose liability on a corporate officer for his actions in transacting business for the corporation.

| ¡.The trial court granted an exception of no cause of action and dismissed Mr. Clau-riste Byles, individually, from the lawsuit. The Plaintiffs appeal this decision. The merits of the Plaintiffs’ claims against Byles Welding and Tractor Company are not before us. We must decide, only, whether they may maintain an action against Mr. Clauriste Byles in his individual capacity.

STANDARD OP REVIEW

Whether the facts alleged in the petition constitute a cause of action is a question of law. Accordingly, we review the exception of no cause of action de novo. Accepting the well-pleaded facts as true, we must determine whether the law provides any remedy.

Personal Liability of Corporate Officer

Mr. Clauriste Byles contends that he is immune from liability for any of his actions in the course and scope of his employment for the corporation. Louisiana corporation law does impose certain duties on officers and directors. However, generally, these duties are considered to be owed to the corporation, rather than to third parties. When officers and directors transact with third parties in the course and scope of their employment, the law treats them as agents, limiting their personal liability. Accordingly, under Louisiana law governing mandataries, it is the principal (the corporation) who is liable to third parties, rather than the agent or mandatary (the officer or director). The officer or director is personally liable only in certain limited |,^circumstances. However, we find the Plaintiffs’ allegations against Mr. Byles fall within those limited circumstances.

Specifically, the law of agency offers no protection from tort liability when the officer or director commits the tort of fraud or the tort of intentional interference with a contract. In the instant case, the Plaintiffs allege that Mr. Clauriste Byles made affirmative misrepresentations about the age of the log skid-der with the intent to deceive them and, consequently, fraudulently induced them to purchase it. Specifically, they allege that he “deliberately took measures which were calculated to lead Plaintiffs to believe that they were purchasing a brand new skidder which in truth and fact was some six years old” and that his conduct “amounted to fraud, deceit, or misrepresentation.” We recognize fraud, not only, as a vice of consent, but “fraud is one of those instances in which a face-to-face personal contract may give rise to liability in tort.” The limited liability, the corporate concept recognizes, cannot shield an officer from his fraudulent actions.

Mr. Byles avers that he made no representations, fraudulent or otherwise, to the Plaintiffs because, in fact, the log skidder was “new” as opposed to “used.” However, the parties’ understandings of their communications during the negotiations goes to the merits of the claim. For the purpose of ruling on this exception, we must accept the Plaintiffs’ allegations as true and construe them in the light most favorable to the Plaintiffs.

CONCLUSION

In limited circumstances, a corporate officer is personally liable for his actions even when acting in the course and scope of his employment. Fraud constitutes one of these limited circumstances. Accordingly, the trial court erred in finding that the Plaintiffs’ petition, which alleges that Mr. Byles committed fraud, failed to state a 14cause of action against him. Thus, we reverse the trial court’s ruling and remand the case to it for further proceedings. We cast the costs of this appeal on the Defendant/Appellee, Mr. Clauriste Byles.

REVERSED AND REMANDED.

      . Jones v. Tezeno, 99-1693 (La.App. 3 Cir. 3/1/00), 758 So.2d 896.

      . Id.

      . Id.

      . La.R.S. 12:91.

      . Id.

        . Murphy’s Lease & Welding Serv., Inc. v. Bayou Concessions Salvage, Inc., 00-978 (La.App. 3 Cir. 3/8/01), 780 So.2d 1284, writ denied, 01-1005 (La.6/1/01), 793 So.2d 195.

      . La.Civ.Code art. 3016.

      . Muphy's, 780 So.2d 1284.

      . La.R.S. 12:95; Murphy’s, 780 So.2d 1284.

      . See 9 to 5 Fashions, Inc. v. Spurney, 538 So.2d 228 (La.1989).

      . Thomas C. Galligan, Jr., Contortions Along the Boundary Between Contracts and Torts, 69 Tul. L.Rev. 457, 501 (1994).

      . La.R.S. 12:95; Murphy’s, 780 So.2d 1284.