author: McClendon, J.

text:
    Stanley P. LEMOINE, Jr. v. DEPARTMENT OF PUBLIC WORKS, City of Baton Rouge, Parish of East Baton Rouge & the Personnel Board for the City of Baton Rouge, Parish of East Baton Rouge
    No. 2002 CA 2532.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 26, 2003.

      Kathy Flynn Simino, Baton Rouge, Counsel for Plaintiff/Appellee Stanley P. Lemoine, Jr.
    Deidre Robert, Irys L. Allgood, Special Assistant Parish Attorneys, Baton Rouge, Counsel for Defendants/Appellants Department of Public Works, City of Baton Rouge, Parish of East Baton Rouge & the Personnel Board for the City of Baton Rouge, Parish of East Baton Rouge.
    Before: PETTIGREW, DOWNING, and McClendon, jj.
   McClendon, J.

This is an appeal from a trial court judgment reversing the decision of the Personnel Board for the City of Baton Rouge/Parish of East Baton Rouge (City/Parish) that terminated a civil service employee. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff/appellee, Stanley P. Lemoine, Jr., was employed with the Department of Public Works (DPW), for the City/Parish, as a Pump Mechanic II, a classified civil service employee, from October 7, 1980, until his termination on August 11, 2001.

Mr. Lemoine was arrested by the East Baton Rouge Parish Sheriffs office on drug-related charges on July 1, 2001. He did not report to work on July 2, 2001. On July 3, 2001, Mr. Lemoine drove to his work premises and immediately went to see his acting supervisor to request help through the employee assistance program, in accordance with the City/Parish’s Drug-Free Workforce Ordinance. Mr. Lemoine was referred by his immediate supervisor to Robin Hall, another supervisor at the DPW plant. Mr. Lemoine told Mr. Hall he wanted to self-refer to enter the employee assistance program and that he had been arrested on a drug charge over the weekend. Mr. Hall then contacted Miller Hartzog, another DPW supervisor, with the information, who informed Mr. Hall that he was required to send Mr. Lemoine for a drug test based upon “reasonable suspicion” under the Drug-Free Workforce Ordinance. Mr. Lemoine reported for the drug test which came back positive. Subsequent to a pre-termination hearing, Mr. 13Lemoine was terminated, based on a violation of the City/Farish’s Drug-Free Workforce Ordinance No. 11774.

Mr. Lemoine timely appealed his termination to the Personnel Board. After a hearing held on October 9, 2001, the Personnel Board upheld the action of DPW. Thereafter, Mr. Lemoine filed a petition for judicial review in the Nineteenth Judicial District Court. The trial court determined that Mr. Lemoine’s termination was not valid and issued written reasons for judgment on August 9, 2002. Judgment was signed reversing the judgment of the Personnel Board on October 1, 2002.

The City/Parish appealed asserting that the trial court erred in reversing the decision of the Personnel Board and erred in holding the decision of the Personnel Board to be arbitrary and capricious and in disregard of the substantial evidence. The City/Parish further asserted that the trial court erred in failing to follow Ordinance No. 11774 and the rules governing employees in the classified service of the City/Parish.

DISCUSSSION

The Louisiana Constitution of 1974 provides in Article 5, Section 16(B) that district courts have appellate jurisdiction as provided by law. The rules governing classified employees, however, provide that the decision of the Personnel Board is final and there is no provision for an appeal to the court system. Nevertheless, even in the absence of statutory authority, the right of judicial review of administrative proceedings exists. Tanner v. City of Baton Rouge, 422 So.2d 1263, 1265 (La. App. 1 Cir.1982), writ denied, 429 So.2d 128 (La.1983).

In reviewing the decision of an administrative agency, the trial court is exercising its exclusive original jurisdiction. The trial court, however, does not afford a trial de novo and cannot ignore the prior findings and conclusions of an administrative body. Its proper function is to serve as a court of review. Id.

The decision of the Personnel Board may not be overturned absent a finding that it is either not supported by substantial and competent evidence, or that it is arbitrary, capricious and an abuse of discretion. Jarrett v. Capital Area Legal Services Corp., Inc., 99-0193, p. 4 (La.App. 1 Cir. 3/31/00), 763 So.2d 698, 701, writ not considered, 01-0710 (La.4/12/01), 789 So.2d 601; James v. City of Baton Rouge, 489 So.2d 1308, 1310 (La.App. 1 Cir.1986). Our review is limited to whether the trial court was manifestly erroneous or clearly wrong in concluding that the findings of the Personnel Board were not supported by substantial and competent evidence and that based upon those findings, the Personnel Board’s decision was arbitrary, capricious and an abuse of discretion. See Stobart v. State, Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993); Tanner v. City of Baton Rouge, 422 So.2d at 1266.

| sThe City/Parish argues that Mr. Lem-oine inappropriately used the self-referral portion of the ordinance in an attempt to avoid termination. Section 8:8 of Ordinance No. 11774 provides in pertinent part:

A. When available. An employee who has never tested positive for drugs or alcohol while employed by the city-parish may, at any time prior to:
1. The observation by an appropriate city-parish representative of facts that would justify reasonable, individualized suspicion for purposes of subsection 8:5.C. of this chapter;
refer himself or herself for evaluation and treatment of a drug or alcohol abuse problem. An employee may only self-refer under this chapter one (1) time during all city-parish employment. An employee taking leave for alcohol or drug treatment shall constitute a self-referral.
B. Consequences. An employee shall not be disciplined solely because of the self-referral and shall, with respect, to any violations of this chapter 'that occur after the self-referral, retain all rights available to city-parish employees under this chapter.
C. Procedure
1. The intent to self-refer shall be declared either to the head of the department in which the employee works, or his or her designee, or to the city-parish, in accordance with procedures established by the city-parish pursuant to this chapter.

Mr. Hall informed Mr. Lemoine that he was required to send Mr. Lemoine for a “reasonable suspicion” drug test under section 8:2(G)(3) of the City/Parish Drug-Free Workforce Ordinance. Subsection G provides:

Reasonable suspicion means the observation of any one of the following facts:
1. Employee behavior that indicates that the employee may be under the influence of drugs or alcohol while in the city-parish workplace;
2. Direct observation by a supervisor of employee drug or alcohol use or possession while in the city-parish workplace;
|fi3. Arrest or conviction of the employee for a violation of a criminal drug law, or the identification of the employee by the investigating authority as the focus of a current criminal investigation into illegal drug possession, use, or trafficking; or
4. Arrest or conviction of the employee for a violation of a criminal alcohol law.
5. Information received by a supervisor from an unidentified source or sources that the employee is using drugs or alcohol or is impaired in the city-parish workplace, when this information is corroborated by direct observation by any supervisor of drug or alcohol use by the employee or by other evidence from any supervisor with training and experience in the evaluation of drug-induced impairment.

Defendants initially contended that the arrest itself was reasonable suspicion under subsection (G)(3) that justified the drug test. Alternatively, defendants argued that because Mr. Lemoine told Mr. Hall that he was arrested, that information constituted an observation of facts by an appropriate city-parish representative that would justify a reasonable suspicion under section 8:8. At the hearing before the Personnel Board, defendants further argued that the sheriffs deputy that arrested Mr. Lemoine was “an appropriate City/Parish representative” whose observation of facts (the arrest) justified a reasonable suspicion, authorized the drug test and, therefore, made the self-referral untimely under section 8:8(A)(1) of the ordinance.

Admittedly, the arrest itself could be reasonable suspicion under Section 8:2(G)(3), as there is nothing in the ordinance to prevent the City/Parish from administering a reasonable suspicion drug test based on information it received from Mr. Lemoine during the self-referral process. However, the issue remains as to whether the results of a positive drug test after a valid self-referral can be used against an employee and, in this case specifically, as the basis for the termination of Mr. Lemoine.

|7Mr. Lemoine was dismissed pursuant to Ordinance 11774. Section 8:7(D) of Ordinance 11774 provides in part:

1. An employee commits a Class I violation of this chapter when the employee:
h. Works or reports for city-parish work under the influence of any drug in violation of subsection 8:3(C) of this chapter;
2. An employee who commits a class I violation shall be dismissed from city-parish employment.

Section 8:3(C) provides in part:

C. Use of drugs and alcohol. All city-parish employees are also prohibited from:
1. Working or reporting for work under the influence of any drug, or with a sufficient amount of any drug or metabolite thereof in their systems to result in a positive test as defined in subsection 8:2.F.l of this chapter.

There is no dispute that Mr. Lemoine’s drug test was positive. As such, he was on the workplace premises in an impaired condition. What is unanswered, however, is whether, under the language of the ordinance, Mr. Lemoine was “working” or “reporting for work” on July 3, 2001, such that the results of his drug test could be used as the basis for his termination.

It is true that Mr. Lemoine went to the work premises on July 3, 2001, and clocked in. Mr. Skip Breeden, who testified on behalf of DPW at Mr. Lemoine’s termination hearing before the Personnel Board, stated that it was permissible to appear at work to self-refer as long as it was stated that the employee was not going to work. Mr. Breeden further testified that employees who are under the influence can call in and self-refer over the telephone and this would not subject the employee to a drug test. Mr. | «Breeden stated that he preferred that the employee call in to self-refer to avoid the possibility of a drug test.

Mr. Lemoine testified before the Personnel Board that he appeared at work that morning to get a self-referral for the problem he had. This testimony was not disputed.

Mr. Lemoine clearly did not perform any work-related activities that morning. Nor is there any evidence in the record to support a conclusion that he was “reporting for work” within the meaning of the ordinance. Further, nothing in the record presented before us indicates any intent by Mr. Lemoine to work that day. Mr. Lem-oine came in and did nothing other than report to his supervisor to self-refer. The City/Parish did not show otherwise.

The trial court determined that Mr. Lemoine attempted to self-refer prior to disclosing that he had been arrested. The trial court further found that Mr. Lemoine qualified for and correctly utilized the self-referral ordinance. The trial court additionally determined that Mr. Lemoine was not reporting to work on July 3, 2001, while under the influence and that his sole intention was for self-referring for drug treatment. Thus, the trial court found that Mr. Lemoine’s termination by the Personnel Board was not valid under the code of ordinances given the circumstances presented on July 3, 2001.

After a thorough review of the law and evidence in this case, we are unable to say the trial court did not have a reasonable basis to conclude that the Personnel Board lacked competent and substantial evidence to show that Mr. Lemoine was “working or reporting for work” on July 3, 2001 within |9the meaning of the ordinance. Accordingly, we cannot say that the trial court erred in finding the decision of the Personnel Board arbitrary and an abuse of discretion.

CONCLUSION

For the reasons assigned, the judgment of the trial court is affirmed. Costs are assessed against the City of Baton Rouge/Parish of East Baton Rouge.

AFFIRMED.

      . Appellants refer to the Drug-Free Workforce Ordinance as No. 11774. At the time of the alleged violation of the ordinance, its latest revision was found in No. 11774, § 1, 6-28-00. The self-referral provision of the ordinance, however, was not amended at that time. Its last revision was found in Ordinance No. 9877, § 2, 4-27-94. For consistency and clarity, the Drug-Free Workforce Ordinance, in its entirety, will be referred to as No. 11774.

      . Made defendants were the Department of Public Works, City of Baton Rouge, Parish of East Baton Rouge and the Personnel Board for the City of Baton Rouge, Parish of East Baton Rouge.

      . Section 9.05 of Chapter 9 of the Parish of East Baton Rouge and City of Baton Rouge Plan of Government provides in pertinent part that "[t]he decision of the Personnel Board either sustaining, reversing or modifying the disciplinary action appealed from shall be final.”

      . But see City of Baton Rouge v. Bernard, 01-2468, p. 5 (La.App. 1 Cir. 1/22/03), 840 So.2d 4, 7, writ denied, 03-1005 (La.6/27/03), 847 So.2d 1278, wherein this Court dismissed the appeal by the City/Parish of the Personnel Board decision to reinstate a city employee after his termination by the city, finding that neither the district court nor appellate court had subject matter jurisdiction over the case. The Court stated:
      The City/Parish is a juridical person, not a natural person. See La. C.C. art. 24. As such, its capacity “is governed by provisions in its charter, governing legislation, and customs.” La. C.C. art. 24 and Comment (d). A juridical person, as a creature of the law and by definition, has no more legal capacity than the law allows.
      The City/Parish operates under a home rule charter. The City/Parish has by its own charter limited its recourse as a juridical entity from adverse decisions of its own Personnel Board. The limitation so imposed upon its rights does not violate due process of law under the Louisiana Constitution.
      In this matter, however, unlike Bernard, an employee of the City/Parish, and not the City/Parish, sought review of the decision of the Personnel Board. Therefore, we find Bernard distinguishable.

      . While it is of great concern that Mr. Lem-oine apparently drove to work in a City/Parish vehicle on the morning in question, the evidence was clear that no ordinance or rule required that Mr. Lemoine only telephone in his self-referral request.


source: Caselaw Access Project

author: GAIDRY, J. 1 iFITZSIMMONS, Judge,

license: Public Domain

text:
    Michael DOE and Davin Doe v. Bob JONES and Jane Jones
    No. 2002 CA 2581.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 26, 2003.

      R. Bruce Macmurdo, Baton Rouge, Counsel for Plaintiffs/Appellants Michael Doe and Davin Doe.
    Donald R. Smith, Baton Rouge, Counsel for Defendant/Appellee Nina Henderson Smith.
    Michael P. Colvin, Baton Rouge, Counsel for Defendant/Appellee State Farm Fire & Casualty Company.
    Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   GAIDRY, J.

This is an appeal of a summary judgment holding that the plaintiffs’ claims against their grandmother and her liability insurer for her alleged negligent supervision resulting in sexual abuse are prescribed. For the reasons expressed below, we reverse the summary judgment in the defendants’ favor and remand the case to the trial court for further proceedings.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Davin Henderson and Michael Henderson (plaintiffs) are brothers and the grandsons of Nina Henderson Smith, the wife of Bobby Smith. They filed suit for damages against Mr. and Mrs. Smith and Mrs. Smith’s homeowner’s insurer, State Farm Fire and Casualty Company (State Farm). In their petition, plaintiffs alleged that Mr. Smith, their step-grandfather, sexually abused them from the time each was about seven years old until each was about fifteen years old. They further alleged that Mrs. Smith was negligent in failing to warn them and their parents of Mr. Smith’s pedophilic tendencies, in permitting Mr. Smith to be alone with them, and in failing to properly supervise them while guests at her home.

It is undisputed that Mr. Smith sexually abused the plaintiffs as minors and pled guilty to criminal charges arising from that abuse. Davin Henderson claims that the last incident of abuse upon him occurred around Christmas, 1991. Michael Henderson claims he was last abused by Mr. Smith during the summer of 1994. Davin Henderson reached the age of majority on August 1, 1994, and Michael Henderson became a major- on July |a17, 1996. Their joint petition was filed on March 28, 2001, well over three years after each attained the age of eighteen.

Mrs. Smith and State Farm separately answered the petition, denying any fault on her part and pleading the prescription of plaintiffs’ claims. State Farm also alleged that due to their character, the claims asserted were not covered under its policy, and that some of the alleged acts of abuse did not occur within any applicable period of coverage provided.

After issue was joined, State Farm filed a motion for partial summary judgment, seeking its dismissal on the grounds that plaintiffs’ claims against it, as insurer of Mrs. Smith, were prescribed. Mrs. Smith filed a motion for summary judgment seeking her dismissal from the suit on the same grounds. Both motions were heard on March 11, 2002, and the trial court granted both, rendering its written reasons on March 14, 2002. The judgment was signed on May 3, 2002. From the judgment granting summary judgment in favor of Mrs. Smith and partial summary judgment in favor of State Farm, plaintiffs instituted this appeal.

ASSIGNMENTS OF ERROR

Plaintiffs assign as error the trial court’s decision that La. C.C. art. 3496.1 provides the applicable prescriptive period of three years after majority relating to their claims, to the exclusion of La. R.S. 9:2800.9’s ten-year prescriptive period.

1 STANDARD OF REVIEW

Although typically asserted through the procedural vehicle of the peremptory exception, the defense of prescription may also properly be raised by motion for summary judgment. As defendants chose to use the latter procedural device, our review of each summary judgment at issue here must be a de novo review based upon the evidence presented in the trial court, using the same criteria used by the trial court in deciding whether summary judgment is appropriate. Simmons v. Berry, 98-0660, p. 4 (La.App. 1st Cir.12/22/00), 779 So.2d 910, 913-14.

LAW AND DISCUSSION

The summary judgment procedure is expressly favored in the law, and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. La. C.C.P. art. 966(A). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions, and affidavits in the record show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The mover has the burden of proof that he is entitled to summary judgment. If the mover would also bear the burden of proof at trial on the matter at issue, he must negate all essential elements of the adverse party’s claim, action, or defense. La. C.C.P. art. 966(C)(2). |fiDespite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 00-2507, p. 2 (La.12/8/00), 775 So.2d 1049, 1050.

Prescription runs against all persons, including minors, unless exception is established by legislation. La. C.C. arts. 3467, 3468. Delictual actions are generally subject to a liberative prescription of one year, commencing from the day injury or damage is sustained. La. C.C. art. 3492. However, the legislature has established a number of exceptions to the general one-year prescriptive period, among them La. C.C. art. 3496.1. That article, as amended by Acts 1992, No. 322, effective August 21, 1992, presently provides:

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

Significantly, the 1992 amendment of La. C.C. art. 3496.1 expanded the category of defendants subject to its prescriptive period to any “person,” from a prior wording of “parent or caretaker.” The term “abuse” is not defined in the article. However, this court adopted the definition of “abuse” set forth in La. Ch.C. art. 603(1) for purposes of La. C.C. art. 3496.1 in the case of Hall v. Hebert, 99-2781, p. 6 (La.App. 1st Cir.6/22/01), 798 So.2d 159, 163, citing the earlier decision of Dugas v. Durr, 96-744 (La.App. 3rd Cir.3/6/98), 707 So.2d 1368. There, we agreed with the Dugas court that a claim of “inadequate supervision” resulting in sexual abuse was subject to the three-year prescriptive period of La. C.C. art. 3496.1.

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

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

This case presents us with the straightforward issue of whether La. 9:2800.9 operates to maintain the viability of plaintiffs’ claims against their grandmother, which were asserted well after the extended prescriptive period of majority plus three years set forth in La. C.C. art. 3496.1. If La. R.S. 9:2800.9 does not apply here, plaintiffs’ claims are clearly prescribed under either La. C.C. art. 3492 or 3496.1.

In pertinent part, La. 9:2800.9(A) provides:

An action against a person for sexual abuse of a minor, or for physical abuse of a minor resulting in permanent impairment or permanent physical injury or scarring, is subject to a liberative prescriptive period of ten years. This prescription commences to run from the day the minor attains majority, and this prescription shall be suspended for all purposes until the minor reaches the age of majority. Abuse 17has the same meaning as provided in Louisiana Children’s Code Article 603(1). This prescriptive period-shall be subject to any exception of peremption provided by law.

Defendants argue that the ten-year period of liberative prescription of La. R.S. 9:2800.9 does not apply to a claim for abuse based upon a noncustodial adult’s negligent supervision, but that any such claim is instead governed by La. C.C. art. 3496.1, citing Dugas and Hall. They contend that the courts in those cases specifically rejected the applicability of La. R.S. 9:2800.9 to those claims against overnight social hosts to whose supervision the minor victims were entrusted. We disagree with defendants’ interpretation of the holdings in those cases. The Louisiana Third Circuit Court of Appeal in Dugas considered La. R.S. 9:2800.9 as a statute in pari materia with La. C.C. art. 3496.1, but did not actually reach the issue of its concurrent applicability, as the latter was held applicable to maintain the plaintiffs’ claim. In Hall, we simply “questioned]” the applicability of La. R.S. 9:2800.9, suggesting that certain undescribed requirements were not met. Hall, 99-2781 at p. 5 n. 4, 798 So.2d at 162 n. 4. As we held in Hall that the plaintiffs’ claim was not prescribed because of the applicability of La. C.C. art. 3496.1, that discussion was clearly only dictum. Accordingly, neither case stands for the proposition that La. C.C. art. 3496.1 applies to the exclusion of La. R.S. 9:2800.9 regarding a claim against a non-parent or noncustodial person for negligent supervision resulting in abuse.

Defendants further argue that La. Ch.C. art. 603(l)(c) specifically addresses abuse in the form of a minor’s involvement in a sexual act or the “aiding or toleration by a parent or caretaker of the child’s sexual involvement,” thereby implicitly excluding that form of abuse from that addressed in Section 1(a) of the statute, which in turn limits claims for “inadequate supervision” to those for “physical or mental injury.” They | ^contend that because Section 1(c) is specifically directed to sexual abuse, the “specific-general” rule of statutory construction requires that its terms must prevail over the more general terms of Section 1(a). See LeBreton v. Rabito, 97-2221, p. 7 (La.7/8/98), 714 So.2d 1226, 1229. We disagree. Sections 1(a) and 1(c) are complementary, not conflicting. An argument identical to defendants’ was expressly rejected by the third circuit in Dugas, 96-744 at pp. 8-9, 707 So.2d at 1371-72, which observed that “[t]he fact that abuse is sexual does not diminish the fact that it is physical and likely mental abuse as well.” Such interpretation accords with the fundamental object of comprehensive protection of children from both active abuse and passive neglect resulting in abuse. See La. Ch.C. art. 601. As La. R.S. 9:2800.9 expressly adopts La. Ch.C. art. 603(l)’s definition of “abuse,” a narrower interpretation of that definition for its purposes than that recognized by our courts for purposes of La. C.C. art. 3496.1 would be absurd.

Subsequent to the perfection of this appeal, the Louisiana Supreme Court issued its opinion in SS v. State, Department of Social Services, 02-0831 (La.12/4/02), 831 So.2d 926. The plaintiff brought suit against the Louisiana Department of Social Services and a contractor operating a private shelter care facility for her minor daughter’s sexual abuse. The daughter had been placed in the Department’s care, and the Department assigned her to the contractor’s facility. While in the care of that facility, the daughter ran away, and engaged in non-consensual sexual intercourse with a facility employee. The court concluded, in summary, that La. R.S. 9:2800.9(A) “provides a ten year prescriptive period, commencing at majority, for claims of sexual abuse against minors as a result of alleged inadequate supervision.” SS, 02-0831 at p. 12, 831 So.2d at 934. While this broad language would seem to be dispositive of the issue at hand, defendants ^nevertheless alternatively urge that other language from that opinion in fact supports their contention that La. R.S. 9:2800.9 applies only to negligent or inadequate supervision by a person having the status of caretaker, which they contend is equivalent to that of a legal custodian. We cannot accept the proposition that “caretaker” and “legal custodian” are synonymous. While it is true that the Louisiana Supreme Court in SS found that the Department was the minor’s “caretaker” by reason of its legal custody of her, and that La. C.C. art. 3496.1 applied to the claim against it, it did not find the contractor to be a legal custodian or a “caretaker.” It held that La. R.S. 9:2800.9 applied to the contractor because it operated the facility at which the minor was “housed” and had “supervisory obligations” over her. SS, 02-0831 at p. 11, 831 So.2d at 934.

We are required to strictly construe the language of La. R.S. 9:2800.9 “against prescription and in favor of the claim sought to be extinguished by it.” Wimberly v. Gatch, 93-2361 (La.4/11/94), 635 So.2d 206, 211. Because of the broad definition of “abuse” contained in La. Ch.C. art. 603(1)(a), as incorporated by reference in La. R.S. 9:2800.9, this principle of construction must control over the “specific-general” rule of construction. Applying that standard of interpretation, we conclude, as did the Supreme Court in SS, that plaintiffs’ claims are not prescribed.

Our recent decision in Johnson v. Roman Catholic Church for the Archdiocese of New Orleans, 02-0429 (La.App. 1st Cir.2/14/03), 844 So.2d 65, writs denied, 03-0730, 843 So.2d 401, 03-0778 (La.5/9/03), 843 So.2d 406, supports the result here. There, we thoroughly reviewed the legislative and jurisprudential background of the prescriptive statutes at issue. The plaintiffs, parents and a major son, alleged that the defendant, a Catholic priest and the family’s spiritual advisor, sexually abused the son (then a minor) on an overnight visit. The issue of the defendant’s status as a “caretaker” under La. C.C. art. 3496.1 was crucial to the viability of the plaintiffs’ claim because it was governed by the pre-1992 version of that article, and La. 9:2800.9 did not become effective until 1993. The act of abuse occurred in 1991, and the plaintiffs’ son attained majority in 1992, but suit was not filed until 1998. Thus, unless the defendant was a “caretaker” against whom prescription was suspended under La. C.C. art. 3469, and a “caretaker” for purpose of the pre-1992 version of La. C.C. art. 3496.1, one-year prescription had already accrued in favor of the defendant prior to the 1993 enactment of La. R.S. 9:2800.9’s ten-year prescriptive period, and the subsequent legislation could not operate to retroactively revive the cause of action and deprive the defendant of a vested right. If the defendant was a “caretaker,” then the three-year period after majority would serve to maintain the viability of the cause of action through the 1993 enactment of La. R.S. 9:2800.9, which in turn would further extend the prescriptive date on the unprescribed cause of action for another seven years. Johnson, 02-0429 at p. 5, 844 So.2d at 68-9.

In Johnson, we held that a “caretaker” relationship is not dependent upon a legal obligation founded upon a court order, such as those of tutor, guardian, or legal custodian. The attributes of such a relationship were described as follows:

InThe status of a “caretaker” necessarily entails an entrustment. It is the yielding of some responsibility and the accepting of that responsibility. That transfer of responsibility may be one legally mandated such as found in curatorships, tu-torships, or foster-parent relationships, but there may be volunteer transfers that characterize the entrustment. A usual attribute of a “caretaker” relationship involves an obligation to provide sustenance or adequate shelter and care in a custodial setting for a period of time....
A significant concern is the temporal aspect of the entrustment in classifying the relationship between the minor and the alleged tortfeasor....
However, the temporal aspect of the entrustment and the status of the parties should be examined together....
An authority figure and a concomitant dependency are significant factors found in “caretaker” relationships....

Johnson, 02-0429 at pp. 7, 8, 844 So.2d at 70-71. We held that the long-term, special relationship between the plaintiffs and the defendant warranted a finding of “caretaker” status, despite the “limited time” of entrustment (one night) and the “temporary” nature of the physical authority and responsibility transferred. Johnson, 02-0429 at p. 9, 844 So.2d at 71.

We note that the legislature could easily have modified the phrase “inadequate supervision” in La. Ch.C. art. 603(l)(a) by the addition of the phrase “by the parent or the caretaker,” as it modified the phrase “aiding or toleration” in Section (l)(c) of the article. Its failure to so limit Section 1(a) lends support to an interpretation that persons other than parents or caretakers might be guilty of “abuse” of a minor through their inadequate supervision of the minor or the direct perpetrator. But we need not decide |1?that narrow issue here. Based upon the undisputed evidence in the depositions, we conclude that Mrs. Smith was in fact a “caretaker,” and as such owed the duty to exercise reasonable care to adequately supervise and protect the minor grandchildren in her charge from sexual abuse. The evidence in the record shows that plaintiffs were frequent visitors to their grandmother’s home, and were often entrusted by their parents to the care of Mr. and Mrs. Smith overnight. There was unquestionably a much stronger type of “encompassing relationship” with “custodial entrustment, for a limited time,” with “temporary physical authority and responsibility” than was present in Johnson. See Johnson, 02-0429 at p. 9, 844 So.2d at 71. Thus, Mrs. Smith clearly falls within the Johnson criteria for “caretaker” status for purposes of La. C.C. art. 3469.

Because of the magnitude of the issue here addressed, we briefly digress. We must point out that these prescriptive statutes and La. Ch.C. art. 603(1) themselves do not create a substantive delictual cause of action for “passive” abuse of a minor through inadequate supervision; the existence of such a cause of action in any given case is governed by the general principles of La. C.C. arts. 2315, 2315.7, 2316, and the general principles of 113tort law embodied in our jurisprudence. Considerations of the magnitude of the risk, the scope of any duty undertaken, foreseeability, and others inherent in the duty-risk analysis must still be taken into account.

Our law clearly contemplates that the “person” against whom a claim for negligent supervision resulting in a minor’s abuse is asserted must have substantial “supervisory obligations” over the minor. And we emphasize that La. R.S. 9:2800.9 presupposes that the “person” against whom the claim of inadequate supervision resulting in sexual abuse or serious permanent injury is leveled in fact owed a legal duty and breached that duty, resulting in injury to the minor. We need not decide today whether all persons owing such duties are “caretakers” within the meaning of La. C.C. art. 3469 or La. Ch.C. 60S(l)(c), as Mrs. Smith clearly was one under the facts before us. Plaintiffs’ allegations that their grandmother knew of her husband’s pedophilic tendencies, failed to warn them or their parents of those tendencies, allowed plaintiffs to be alone with him, and failed to supervise plaintiffs properly while under her care, as supported by the depositions in the record, clearly state causes of action which are governed by La. R.S. 9:2800.9.

DECREE

The judgment of the trial court in favor of the defendants, Nina Henderson Smith and State Farm Fire and Casualty Company, and against the plaintiffs, Davin Henderson and Michael Henderson, is reversed, and this |ucase is remanded to the trial court for further proceedings. All costs of this appeal are assessed to the defendants.

REVERSED AND REMANDED.

FITZSIMMONS, J., concurs and assigns reasons.

1 iFITZSIMMONS, Judge,

concurring with reasons.

I respectfully concur in the result. However, I wish to voice concern over the attribution of inter-relational aspects of the statute voiced in the majority opinion’s interpretation of La. Ch.C. 603(l)(a) and (c).

The reference to ‘caretaker’ in subsection (c) of La. Ch.C. 603(1) is not contained in subsection (a). Thus, a policy question of just how far one would wish to intermingle these two separate parts of the same statute is presented. I would respectfully submit that by the very language of the statute, ‘caretaker’ is justly limited in application to only subsection (c). To do otherwise would place the term in danger of even greater extension of meaning than has already been done in the majority opinion. By no rational means can the term ‘caretaker’ be expanded to any and all persons. What is of concern is that the frequently implored construction of who is a ‘caretaker’ will be relegated to a ‘case by case’ determination. This approach gives no sense of predictability to the law.

It is respectfully advanced that this case could be decided solely on the language of subsection (c). In this regard, the grandmother was a ‘caretaker’ in the most elemental sense of the word. As is pointed out in the majority opinion, the undisputed evidence demonstrated that the grandmother possessed “supervisory obligations.” See SS v. State, Department of Social Services, 2002-0831, p. 11 (La.12/4/02), 831 So.2d 926, 934. Moreover, this first circuit has recently held that the nomenclature of ‘caretaker’ depends on the “temporal aspect of the en-trustment” and a dependent relationship. Johnson v. Roman Catholic Church for the Archdiocese of New Orleans, 2002-0429, pp. 7-9 (La.App. 1 Cir. 2/14/08), 844 So.2d 65, 70-71.

      . The original petition used pseudonyms for the parties, pursuant to the requirements of La. R.S. 9:2800.9(D). By supplemental and amending petition, the parties’ actual names were substituted with leave of court.

      . Although the trial court’s partial summary judgment in favor of State Farm is properly designated as a final, appealable judgment under La. C.C.P. art. 1915(B), the record does not contain the trial court’s express determination as to the propriety of such designation. Our de novo review of the record demonstrates that there are substantial factors militating in favor of the conclusion that there is no just reason to delay the appeal of the partial summary judgment. If that judgment stood alone for purposes of appeal, the proper course would be to remand the case to the trial court for supplementation of the record with its reasons for the designation. Shapiro v. L & L Fetter, Inc., 02-0933, p. 7 (La. App. 1st Cir.2/14/03), 845 So.2d 406, 410-11. However, as the other summary judgment in favor of Mrs. Smith is clearly a final, appeal-able judgment under La. C.C.P. art. 1915(A), and involves the same issue, we may properly consider the appeal of the partial summary judgment in favor of State Farm for purposes of judicial economy, without the need for remand.

      . The procedural propriety of a motion for summary judgment to assert a plea of prescription has never been seriously questioned by our courts and in fact has been expressly approved, especially when there is no dispute as to the facts upon which the defense is based. Scott v. Butler Brothers Furniture Company of Baker, Inc., 315 So.2d 809, 810 (La.App. 1st Cir.1975); Lasseigne v. Earl K. Long Hospital, 316 So.2d 761, 762 (La.App. 1st Cir.1975). In the typical case where prescription is raised as a defense, however, the defendant will ordinarily use the peremptory exception as the procedural vehicle for pretrial determination of the issue, for the practical reason that his burden is a preponderance of the evidence, and he need not exclude all genuine issues as to material fact. See Labbe Service Garage, Inc. v. LBM Distributors, Inc., 94-1043, pp. 9-10 (La.App. 3rd Cir.2/1/95), 650 So.2d 824, 829. Where, as here, the disputed issue is one of law rather than material fact, the use of summary judgment is particularly appropriate and probably preferable to the use of the peremptory exception from an evidentiary standpoint.

      . The prior version, of the article adopted by reference the definition of "caretaker” contained in La. C.C. art. 3469, which provides that prescription is suspended between "caretakers and minors during minority.” “Caretaker” is defined therein as "a person legally obligated to provide or secure adequate care for a child, including a tutor, guardian, or legal custodian.” La. C.C. art. 3469.

      . The "specific-general” rule of construction is only applicable if the two statutes in pari materia cannot be harmonized to eliminate any conflict. It is questionable whether this rule is applicable to different sections of the same statute; however, we need not decide this question today, as Sections 1(a) and 1(b) can be harmonized by adopting an interpretation which considers the beneficent purposes of both La. Ch.C. art. 601 and La. R.S. 9:2800.9 and the strong policy favoring strict construction of laws limiting parties’ access to legal redress. Where a part of a statute is to be interpreted, it should be read in connection with the rest of the statute and all other laws on the same subject. Theriot v. Midland Risk Insurance Company, 95-2895, p. 3 (La.5/20/97), 694 So.2d 184, 186.

      . As we observed in Johnson:

      Society abhors the abuse of a minor by anyone, and more particularly by one in authority over a minor.... Additionally, the classification of the authority has been expanded from “parent" to “parent or caretaker" to "a person." There is a manifest legislative intent to consistently broaden the opportunities for minors to sue their abusers whenever and by whomever the abuse occurs. (Our emphasis.)

        Johnson, 02-0429 at p. 6, 844 So.2d at 69-70.

      . As in Johnson, however, we hasten to point out that our holding that Mrs. Smith was a "caretaker” given the totality of the circumstances of this case does not mean that grandparents, other relatives, family friends, or any other "chaperons for an overnight social visit by minors are reasonably classified as 'caretakers’ " at all times and under all circumstances. Johnson, 02-0429 at p. 9 n. 3, 844 So.2d at 71 n. 3. And our prior citation of the Dugas opinion herein should not be read as blanket approval of the existence of a valid cause of action for "inadequate supervision” in every case involving an isolated overnight sleepover of young friends. Each case must be analyzed on its own individual facts under the duty-risk analysis as to whether a cause of action exists. See, e.g., Lee v. Taylor, 00-1361 (La.App. 1st Cir. 12/15/00), 808 So.2d 407.

      . Thus, the incorporation by reference of the definition of "abuse” of La. Ch.C. art. 603(1) in La. R.S. 9:2800.9 does not imply, for example, that every instance of transient forgetfulness during which "attempted infliction” of sexual abuse on a minor occurs necessarily results in an actionable tort against an adult or competent entity with some supervisory duty. The nature of the legal obligation and physical custody supporting "caretaker” status "is more encompassing than, for example, the relationship between a teacher or school or a child in a typical non-residential setting.” L.V. v. Liberto, 612 So.2d 812, 815 (La.App. 1st Cir.1992).


author: PETTIGREW, J.

text:
    Nancy AUTHEMENT v. WAL-MART.
    No. 2002 CA 2434.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 26, 2003.

      Joseph J. Weigand, Jr., Houma, for Plaintiff-Appellant # 2 Nancy Authement.
    Catherine E. Orwig, Metairie, for Defendant-Appellant # 1 Wal-Mart.
    Before: PETTIGREW, DOWNING and McClendon, jj.
   PETTIGREW, J.

In this case, the workers’ compensation judge rendered judgment in favor of claimant, awarding workers’ compensation benefits, penalties, and attorney fees in connection with a work-related accident. Both claimant and defendant^employer have appealed from said judgment. For the reasons that follow, we reverse in part, amend, and as amended, affirm.

FACTS AND PROCEDURAL HISTORY

On February 14, 2002, claimant, Nancy Authement, filed a disputed claim for compensation with the Office of Workers’ Compensation averring entitlement to workers’ compensation benefits. Ms. Authement alleged that on July 5, 2001, during the course and scope of her employment with Wal-Mart, she injured herself while she was lifting and stocking merchandise in the dairy department. According to Ms. Authement, she developed sharp pains in her shoulders while she was “down stacking” milk crates. She reported the incident to her immediate supervisor, Darla, and went back to work. Ms. Authement reported to work the following day and did more heavy lifting in the dairy department. The pain in her shoulders

continued to worsen, and, on July 7, 2001, Ms. Authement began working as a cashier.

After working as a cashier for approximately one week, Ms. Authement reported the pain in her shoulders to Tina Davis, a customer service manager. Ms. Davis advised her that she should file an accident report. However, Ms. Authement decided to wait because she thought her shoulders were just sore. Thereafter, Ms. Authement started experiencing sharp pains from her neck going down her arms. She ultimately completed an “ASSOCIATE STATEMENT-WORKERS COMPENSATION” (“accident report”) on July 19, 2001, indicating that “continuous lifting” was the cause of her injury.

According to the medical evidence in the record, Ms. Authement was initially seen by Dr. Troy Hutchinson on July 17, 2001, with complaints of pain in both shoulders that started following a work-related injury on July 5, 2001. Ms. Authement reported that although the pain had gotten a little better in the days after the accident, she then developed sharp pains down both arms. Dr. Hutchinson prescribed a | ¡¡conservative course of treatment. He also advised Ms. Authement to restrict her work to light-duty with no lifting of anything greater than 10-15 pounds. When Ms. Authement returned on July 23, 2001, she indicated that her pain had gotten a little better, but still described the pain as “sharp.” Dr. Hutchinson prescribed three weeks of physical therapy. Ms. Authement attended five physical therapy sessions and did not respond to the treatment. She was last seen by Dr. Hutchinson on September 11, 2001, at which time he referred Ms. Authement to Dr. Gary Guidry, an orthopedic surgeon.

Ms. Authement first saw Dr. Guidry on September 19, 2001, at which time she complained of pain on both sides of her neck that radiated into her shoulders. She also complained of headaches and pain referring into the area between her shoulder blades. Although Ms. Authement had some mild spasm in her neck, Dr. Guidry found that she had full range of motion in her neck and a normal neurological examination. All x-rays were within normal limits, and physical examination of both shoulders was felt to be normal. Because Ms. Authement’s symptoms had persisted, Dr. Guidry scheduled her for an MRI and recommended she continue with her work duties but not do any lifting.

The MRI was performed on October 2, 2001, and revealed a disc protrusion at C5 to the right of the midline. During Ms. Authement’s next appointment with Dr. Guidry on October 4, 2001, he opined that Ms. Authement’s disc protrusion was secondary to her job activities and recommended cervical epidural steroid injections. Dr. Guidry referred Ms. Authement to Dr. Mike Haydel for the injections and advised Ms. Authement that she should not return to work at that time. After having undergone a series of three injections, Ms. Authement returned to see Dr. Guidry on February 7, 2002. Ms. Authement indicated the injections had not helped her, and she was still having neck pain radiating to her right arm. Dr. Gui-dry recommended that Ms. Authement undergo an EMG and nerve conduction study to determine whether she had nerve root impingement. According to Dr. Guidry’s records, these tests were never completed.

Dr. Guidry retired in March of 2002, at which time Ms. Authement began seeing Dr. Larry Haydel, another orthopedic surgeon associated with Dr. Guidry’s office. On |4March 26, 2002, Ms. Authement indicated to Dr. Haydel that the pain in her neck had not improved any. He prescribed pain medication and an anti-inflammatory and advised Ms. Authement to return in six weeks for another evaluation. Ms. Authement returned on May 24, 2002, with complaints of neck pain radiating into her right arm. At that time, Dr. Haydel discussed options available to Ms. Authement, including an anterior cervical fusion. When Ms. Authement was last seen by Dr. Haydel on July 9, 2002, she reported no improvement in her symptoms. Dr. Hay-del again discussed the possibility of surgery with Ms. Authement. There is no indication in the record that Ms. Authement ever returned to see Dr. Haydel after this July 2002 visit.

At Wal-Mart’s request, Ms. Authement was evaluated for a second opinion on February 7, 2002, by another orthopedic surgeon, Dr. John P. Sweeney. According to Dr. Sweeney’s report, he examined Ms. Authement and reviewed all of her medical records to date in preparing his report. Dr. Sweeney found that Ms. Authement had an “[ijntervertebral disc protrusion at C5-6 with neck pain non radicular.” In his letter to Peggy Horton, Claims Manager for Claims Management, Inc. (“CMI”), Dr. Sweeney reported further as follows:

You have asked me to address her current mechanism of injury in reference to a causal relationship to an incident of July 05, 2001. Without a specific injury it is difficult to correlate the disc protrusion at C5-6 with a certain work related event. Your letter dated January 29th, 2002 to me, states that she had no specific injury but discomfort to her shoulder from continuous lifting, pushing and pulling. She reports the same history to me now and without a specific traumatic event I cannot ascribe her current C5-6 disc findings to a single work related event. In fact, unless there is a history that she is not telling me I cannot describe any particular single event as the cause of her disc protrusion. Many cervical disc protrusions occur insidiously and cannot be attributed to a single isolated traumatic event.... Dr. Hay-del’s treatment of her neck pain with epidural steroid injections as recommended by Dr. Guidry is appropriate. I did not find evidence of a pre-existing condition contributing to Ms. Authement’s symptoms. Please note however that this conclusion is based on Ms. Authement providing me with the history that she had absolutely never hurt her neck in the past or had any prior diagnostic studies of her neck. I do not have any information that would lead me to the conclusion that this disc problem is pre-existing July 05, 2001. In answer to your question regarding maximum medical improvement, it has now been over six months since her “injury” and she says that her symptoms have plateaued, that is she has not made any significant improvement over the last couple of months and has not responded to therapy or epidural steroid injections. I do not feel that surgical treatment is necessary or likely to improve her condition and therefore it is logical to conclude that she is at maximum medical improvement at the current time. She has a permanent impairment related to her C5-6 disc protrusion but in response |5to your questions regarding whether this impairment is related to the accident of July 05, 2001 I have not seen evidence that a single incident or single injury has caused this disc problem. Her physical restrictions would be primarily regarding her upper extremities and overhead activities. I would not advise her lifting repetitively more than 10 or 15 pounds. I would place her in a fight duty capacity and not require her to perform activities that required extremes of cervical spine motion, Sedentary or fight work would be well within her qualifications. I would not restrict her traveling and I feel that these restrictions are necessary relative to her C5-6 disc protrusion and these restrictions and opinions are based more heavily on her subjective complaints augmented by the MRI scan findings.

There is no further medical evidence in the record concerning Ms. Authement’s injury. However, at the trial of this matter on August 2, 2002, Ms. Authement testified as follows with regard to her current complaints: “My shoulders and my neck hurt sometimes. It depends what I do. If I move my head a lot or if I do any movement, if I move around too much, my arms, I’ll hurt.” Ms. Authement further indicated that she intends to proceed with the surgery as recommended by Dr. Gui-dry and Dr. Haydel.

According to the record, Wal-Mart began paying medical benefits and weekly indemnity benefits of $190.76 to Ms. Authement following her injury and continued to pay same through February 14, 2002, when all benefits were terminated. This action by Wal-Mart prompted the instant suit. Ms. Authement’s claim for compensation proceeded to hearing on August 2, 2002, at which time the workers’ compensation judge heard testimony from Ms. Authement and Ms. Davis, allowed the introduction of various documents into evidence, including the depositions of Dr. Gary Guidry and Peggy Horton and Ms. Authement’s medical records, and took the matter under advisement.

After hearing from Ms. Authement and Ms. Davis at trial and considering the evidence in the record, the workers’ compensation judge rendered judgment on August 30, 2002, finding that Ms. Authement was injured while in the course and scope of her employment with Wal-Mart and that she was entitled to workers’ compensation benefits. Moreover, the judge concluded that Wal-Mart did not reasonably controvert Ms. Authement’s claim for benefits and, thus, awarded Ms. Authement $2,000.00 in penalties and $2,000.00 in attorney fees. It is from this judgment that both parties have appealed. In its appeal, Wal-Mart assigned the following specifications of error:

Ifil. The Workers’ Compensation Court erred in ruling that the claimant suffered an accident as defined by the Louisiana Workers’ Compensation Act.
2. The Workers’ Compensation Court erred in finding that the employer was arbitrary and capricious and in its application of LSA-R.S. 23:1201.2 by awarding both penalties in the amount of $2,000.00 as well as attorney’s fees in the amount of $2,000.00.
3. The Workers’ Compensation Court erred in ruling that Employer/Defendant should pay medical benefits, as the accident was not compensable, and if, in the alternative the incident was compen-sable, the Workers’ Compensation Court erred by not ruling on Defendant/Employer specifically pled right to a medical expense offset as afforded in LSA-R.S. 23:1212.

In her appeal, Ms. Authement assigns error to the workers’ compensation judge’s failure to award judicial interest. Moreover, Ms. Authement seeks an award of damages for what she claims is the fifing of a frivolous appeal and attorney fees for defending same.

STANDARD OF REVIEW

Whether a claimant has carried her burden of proof and whether testimony is credible are questions of fact to be determined by the workers’ compensation judge. Williams v. Wal-Mart Stores, Inc., 2000-1347, p. 5 (La.App. 1 Cir. 9/28/01), 809 So.2d 294, 298. Factual findings in a workers’ compensation case are subject to the manifest error standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. As such, in order for an appellate court to reverse a workers’ compensation judge’s factual findings, it must find from the record that a reasonable factual basis does not exist for the findings of the workers’ compensation judge and that the record establishes that the findings are clearly wrong. See Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Furthermore, when factual findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the trier of fact’s findings; for only the fact finder can be aware of the variations in demeanor and tone that bear so heavily on the listener’s understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

1/WORK-RELATED ACCIDENT

In its first assignment of error, Wal-Mart contends the workers’ compensation judge erred in finding that Ms. Authement suffered a work-related accident pursuant to La. R.S. 23:1021. Wal-Mart alleges that Ms. Authement neither provided a specific date of her alleged accident, nor identified a specific event that caused her injury. We disagree.

As a threshold requirement, a worker in a compensation action must establish “personal injury by accident arising out of and in the course of his employment.” La. R.S. 23:1031. The applicable statutory definition of “accident” is “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La. R.S. 23:1021(1). The fact that an employee does not notify her employer immediately that she suffered an accident, or does so several days after the date of the alleged injury, does not prohibit a finding that the employee sustained an accident. Haws v. Professional Sewer Rehabilitation, Inc., 98-2846, p. 5 (La.App. 1 Cir. 2/18/00), 763 So.2d 683, 688. Moreover, an employee should not be barred from recovery because she did not realize or diagnose the full extent of her injury immediately after it happened. Haws, 98-2846 at 6, 763 So.2d at 688.

Louisiana courts have consistently interpreted the work-related accident requirement liberally. Bruno v. Harbert International Inc., 593 So.2d 357, 360 (La.1992). Indeed, it is well-settled in Louisiana that an “accident” exists when “heavy lifting or other strenuous efforts, although usual and customary, cause or contribute to a physical breakdown or accelerate its occurrence because of a pre-existing condition.” Id. (citing Cutno v. Neeb Kearney & Co., 237 La. 828, 112 So.2d 628, 631 (1959)).

The determination of whether an accident occurred is to be construed from the worker’s perspective. Notably, however, the claimant’s burden of proof is not relaxed, for she must still establish a work-related accident by a preponderance of the evidence. Haws, 98-2846 at 6, 763 So.2d at 688. A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other | sevidence discredits or casts serious doubt upon the worker’s version of the incident, and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Fabre v. ICF Kaiser Intern., 2001-2734, p. 5 (La.App. 1 Cir. 11/8/02), 835 So.2d 724, 727. Corroboration of the claimant’s testimony may be provided by the testimony of co-workers, spouses, friends, or by medical evidence. Moreover, barring circumstances that cast suspicion on the reliability of the claimant’s uncontradicted testimony, the trial court should accept the testimony as true when determining whether the claimant has discharged his burden. Firmin v. St. Mary Parish School Bd., 2002-0631, p. 4 (La.App. 1 Cir. 4/2/03), 843 So.2d 1144, 1146.

After careful review of the record, we find no manifest error in the workers’ compensation judge’s determination that Ms. Authement’s injury was caused by a work-related accident. On July 5, 2001, Ms. Authement reported to her immediate supervisor, Darla, that she was experiencing pain in her shoulders after “doing a lot of lifting.” Darla commented to Ms. Authement that it was “probably from down stacking milk.” Ms. Authement continued her work at that time and reported to work as usual the following day. However, when the pain worsened, Ms. Authement began working as a cashier to avoid the heavy lifting that was required in the dairy department. Ms. Authement testified she chose not to file an accident report immediately following the incident on July 5, 2001, because she believed she had just pulled some muscles. However, the pain started to radiate into her arms, and she sought medical attention. On July 19, 2001, Ms. Authement filed an accident report indicating that she was injured on July 5, 2001, and that “continuous lifting” was the cause of her injury.

According to the medical records from the various physicians who treated Ms. Authement, she was consistent in her description of how and when she was injured. Ms. Authement maintained throughout that she did not have any problems with her arms and shoulders before the incident on July 5, 2001. Further corroboration of Ms. Authement’s testimony concerning the July 5, 2001 incident is found in an internal document from CMI. In a July 20, 2001 entry in the “Notepad History” from Ms. Authement’s CMI file, the following was noted: “DOI: 07/05/01 Sp/W Mary in [ {¡Personnel Date reported: 07/05/01 Reported to: Darala McDonald (deptmgr.) Acciden into: Contious [sic] lifting and pushing.”

Wal-Mart offered no direct evidence to discredit or cast serious doubt upon Ms. Authement’s version of how she was injured on July 5, 2001. Wal-Mart simply argues that Ms. Authement “could not identify the cause of her injury without having spoken to Darla who gave her a description of an accident.” Nonetheless, the fact remains that Ms. Authement reported pain in her arms and shoulders following what she described as “a lot of lifting” on July 5, 2001. She had no history of prior neck problems. Her condition worsened over a period of days, and an accident report was generated. Ms. Authement sought medical treatment, and Wal-Mart began paying medical, benefits and weekly indemnity benefits. Ms. Authement was consistent in her reports to her treating physicians, and Dr. Guidry opined that her disc protrusion was secondary to her job activities. Moreover, we note Ms. Authement’s testimony was corroborated by other evidence in the record. Thus, considering the record as a whole, and giving deference to the factual findings of the workers’ compensation judge as we are required to do, we will not disturb the judge’s finding that Ms. Authement was injured while in the course and scope of her employment with Wal-Mart. This assignment of error is without merit.

AWARD OF PENALTIES

In assignment of error number two, Wal-Mart contends the workers’ compensation judge erred in finding it was arbitrary and capricious in its handling of Ms. Authement’s claim and in the application of La. R.S. 23:1201.2 by awarding both penalties and attorney fees. Wal-Mart submits it had probable cause to discontinue Ms. Authement’s benefits and, thus, was not arbitrary and capricious in the handling of this claim. Moreover, Wal-Mart asserts that if it was arbitrary and capricious in this case, only attorney fees are recoverable under La. R.S. 23:1201.2.

Two statutory provisions, La. R.S. 23:1201(F) and La. R.S. 23:1201.2, provide for the award of penalties and attorney fees in workers’ compensation cases. Louisiana Revised Statutes 23:1201 provides, in pertinent part, as follows:

A. Payments of compensation under this Chapter shall be paid as near as may be possible, at the same time and place as wages were payable to the employee before the accident ....
_Lu-
F. Failure to provide payment in accordance with this Section shall result in the assessment of a penalty in an amount equal to twelve percent of any unpaid compensation or medical benefits or fifty dollars per calendar day, whichever is greater, for each day in which any and all compensation or medical benefits remain unpaid, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. Penalties shall be assessed in the following manner: (1) Such penalty and attorney fees shall be assessed against either the employer or the insurer, depending upon fault. No workers’ compensation insurance policy shall provide that these sums shall be paid by the insurer if the workers’ compensation judge determines that the penalty and attorney fees are to be paid by the employer rather than the insurer.
(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.

Louisiana Revised Statutes 28:1201.2 provides as follows:

Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of all reasonable attorney fees for the prosecution and collection of such claims. The provisions of R.S. 28:1141 limiting the amount of attorney fees shall not apply to cases where the employer or insurer is found hable for attorney fees under this Section. The provisions of R.S. 22:658(C) shall be applicable to claims arising under this Chapter.

The applicable statutory authority for assessing an insurer with penalties and attorney fees depends on whether the insurer failed to commence the payment of benefits in a timely fashion or discontinued benefits that had been timely paid. Russell v. Snelling Personnel, 2002-1347, p. 5 (La.App. 1 Cir. 5/9/03), 849 So.2d 588, 591. In Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41, the Louisiana Supreme Court stated that La. R.S. 23:1201.2 applies only when an insurer or employer discontinues payment of benefits; it does not apply when there has been a failure to commence or pay benefits timely. Williams, 98-2271 at 7, 737 So.2d at 45. The distinction drawn in the Williams case is significant because both penalties and attorney fees are recoverable under La. R.S. 23:1201(F), whereas only attorney fees are recoverable under La. R.S. 23:1201.2. Id.

In the instant case, the August 30, 2002 judgment provided for penalties and attorney fees as follows:

|„IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendant, Wal-Mart, did not reasonably controvert the worker’s compensation claim of Nancy Authement, therefore, the claimant, Nancy Authement, is entitled to penalties in the amount of $2,000.00 as well as attorney fees in the amount of $2,000.00.

We note the workers’ compensation judge’s use of the phrase “did not reasonably controvert” in this judgment. Similar language is found in La. R.S. 23:1201(F)(2). Although the judge offered no written or oral reasons for judgment, the use of this language implies that La. R.S. 23:1201 was utilized by the judge in his decision to award both penalties and attorney fees against Wal-Mart. However, based on our review of the statutes in question and the cases interpreting same, we conclude the judge committed legal error in applying the wrong statute.

A review of the record reveals that benefits in this case were commenced timely as required by La. R.S. 23:1201. Ms. Authement began receiving medical benefits and weekly indemnity benefits following her injury and continued to receive same through February 14, 2002, when all benefits were terminated. Thus, the only statute at issue in this case is La. R.S. 23:1201.2. That statute has no provision for penalties. See Hundley v. Bisso Properties, 2002-2110, p. 10 (La.App. 1 Cir. 6/27/03), — So.2d -, -. Accordingly, Wal-Mart’s discontinuance of benefits cannot be the grounds for an imposition of a penalty. That portion of the judgment must be reversed.

The next inquiry then becomes whether Wal-Mart acted arbitrarily, capriciously, or without probable cause in discontinuing the payment of benefits to Ms. Authement. Thus, utilizing the provisions of La. R.S. 28:1201.2, we must make our own independent de novo review and assessment of the record and determine whether Wal-Mart’s actions herein warrant the imposition of attorney fees pursuant to La. R.S. 28:1201.2. For purposes of La. R.S. 23:1201.2, “[arbitrary and capricious behavior consists of willful and unreasoning action, without consideration and regard for facts and circumstance presented, or of seemingly unfounded motivation.” Brown v. Texas-LA Cartage, Inc., 98-1063, pp. 8-9 (La.12/1/98), 721 So.2d 885, 890.

Statutes providing for penalties and attorney fees are penal in nature and must be strictly construed. Thomas v. Wal-Mart, 2002-1356, p. 12 (La.App. 1 Cir. 5/9/03), 849 So.2d 592, 601. The purpose of imposition of penalties and attorney fees hi>is to discourage indifference and undesirable conduct by employers and insurers. The crucial inquiry is whether the employer has articulable and objective reason for denying or discontinuing benefits at the time it took that action. Williams, 98-2271 at 9, 737 So.2d at 46.

As previously indicated, Wal-Mart began paying medical benefits and weekly indemnity benefits to Ms. Authement following her injury and continued to pay same through February 14, 2002, when all benefits were terminated. According to testimony from Peggy Horton, her decision to terminate Ms. Authement’s benefits was based on the accident report filed on July 19, 2001, and on Dr. Sweeney’s medical report dated February 7, 2002. Ms. Horton noted, “I based my determination on the first report of injury stating that there was no specific accident.” She added, “I felt like the claim should have been denied from the beginning.” Ms. Horton admitted that she did not consider the medical reports from Dr. Matherne, Dr. Michael Haydel, or Dr. Guidry in her review of Ms. Authement’s file. Moreover, she acknowledged she had no information to suggest that Ms. Authement had sustained any injury to her neck either before or after the July 5, 2001 incident.

After a thorough review of the record herein, we cannot say that Wal-Mart had an articulable and objective reason for discontinuing Ms. Authement’s benefits. Wal-Mart paid medical and indemnity benefits to Ms. Authement for approximately eight months before discontinuing same. Wal-Mart was aware of Ms. Authement’s diagnosis as well as her treating physician’s recommendation for surgery. Based on the information known to Wal-Mart concerning Ms. Authement’s medical status, there was no reasonable basis for Wal-Mart’s discontinuance of her benefits, thus warranting the imposition of attorney fees pursuant to La. R.S. 23:1201.2. Accordingly, the award of $2,000.00 for attorney fees under these circumstances is affirmed.

MEDICAL EXPENSE OFFSET

In its final assignment of error, Wal-Mart contends the workers’ compensation judge erred in failing to rule on whether Wal-Mart was entitled to the medical expense offset pursuant to La. R.S. 23:1212. Wal-Mart asserts that it specifically pled the entitlement to the medical expense offset and was thus, entitled to same. We disagree.

| iaIt is weE settled that an employer is entitled to a credit against medical expenses pursuant to La. R.S. 23:1212, which states, in pertinent part, as follows:

[P]ayment by any person or entity, other than a direct payment by the employee, a relative or Mend of the employee, or by Medicaid or other state medical assistance programs of medical expenses that are owed under this Chapter, shall extinguish the claim against the employer or insurer for those medical expenses, ... If the employee or the employee’s spouse actually pays premiums for health insurance, either as direct payments or as itemized deductions from their salaries, then this offset will only apply in the same percentage, if any, that the employer of the employee or the employer of his spouse paid the health insurance premiums.

However, La. R.S. 28:1212 is not a self-operative provision. In order for an employer or insurer to avail himself of the credit for payment, it must set forth the extinguishment of the claim as an affirmative defense and submit evidence at trial showing payment of a certain amount of the employee’s medical expenses by a person or entity other than the employee or a relative or Mend of the employee, thereby proving the amount of the credit. Gentile v. Baton Rouge General Medical Center, 95-0348 (La.App. 1 Cir. 11/9/95), 665 So.2d 422, 430. Our review of the instant record reveals no such evidence was introduced by Wal-Mart. Thus, Wal-Mart is not entitled to a medical expense credit or setoff pursuant to La. R.S. 23:1212. This assignment of error is without merit.

JUDICIAL INTEREST

In her appeal, Ms. Authement assigns error to the judge’s failure to award judicial interest below. Pursuant to La. R.S. 23:1201.3(A), “[a]ny compensation awarded and all payments thereof directed to be made by order of the workers’ compensation judge shall bear judicial interest from the date compensation was due until the date of satisfaction.” Thus, an award of legal interest is not discretionary with the workers’ compensation judge. Gregory v. Interim Personnel Of North Louisiana, 30,808, p. 3 (La.App. 2 Cir. 8/25/98), 717 So.2d 291, 293. A workers’ compensation claimant is entitled to legal interest on past workers’ compensation benefits from the due date of each payment, until paid, and on penalties and attorney fees from the date of judicial demand until paid. Kirn v. East Jefferson Hospital, 96-0838, p. 12 (La.App. 1 Cir. 2/14/97), 691 So.2d 127, 134. Accordingly, the judgment below is amended to provide for same.

DAMAGES AND ATTORNEY FEES FOR FRIVOLOUS APPEAL

Ms. Authement argues on appeal that Wal-Mart’s appeal was frivolous and as such, she is entitled to damages. She further requests an additional award of attorney fees for defending the appeal. However, Wal-Mart obtained relief on appeal in that the part of the judgment awarding statutory penalties is reversed. Thus, Wal-Mart’s appeal was not frivolous. Ms. Authement is not entitled to damages or additional attorney fees on appeal. See Insurance Company of North America v. Labit, 99-2448, p. 7 (La.App. 1 Cir. 11/15/00), 772 So.2d 385, 389.

CONCLUSION

For the above and foregoing reasons, the portion of the workers’ compensation judgment awarding $2,000.00 in penalties is reversed. Moreover, the judgment is amended to grant legal interest on past workers’ compensation benefits from the due date of each payment, until paid, and on the attorney fees awarded below from the date of judicial demand until paid. All costs associated with this appeal are assessed equally between the parties.

REVERSED IN PART. AMENDED, AND AS AMENDED, AFFIRMED.


author: GAIDRY, J.

text:
    Curtis A. COUSIN v. SLIDELL MEMORIAL HOSPITAL.
    No. 2002 CA 2600.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 26, 2003.

      Edward Gothard, Metairie, Counsel for Plaintiff/Appellant Curtis A. Cousin.
    John Keller, Madisonville, Counsel for Defendant/Appellee Slidell Memorial Hospital.
    Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   GAIDRY, J.

Plaintiff, Curtis Cousin, claims that he was injured in the course and scope of his employment with Slidell Memorial Hospital. The Office of Workers’ Compensation (OWC) judge, Robert Varnado, Jr., denied Cousin’s claim after finding that Cousin failed to carry his burden of proof that an accident occurred, and Cousin appealed. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Cousin claims that several hours into his shift on August 15, 2001, while using a stripping machine to remove wax from the floors at Slidell Memorial Hospital, he injured his neck. According to Cousin’s trial testimony, he was tilting the stripping machine to get some wax up when the machine lurched forward, jerking him. He felt a pop in his neck with immediate onset of neck and shoulder pain. He continued to perform his duties and did not immediately report an accident or injury to his supervisor because he did not think anything of it. Some time later, he was having a “slight pain” in the area where he felt the pop, so he approached a nurse. He did not tell the nurse what had happened, but instead requested Tylenol for a headache. He then went back to work stripping the floors, but was only able to work approximately thirty more minutes because he began experiencing a stiffening and pain in the area where he had felt the pop. He became scared that he was having a heart attack because his brother had died at a young age from heart problems, so he went to look for his supervisor, Gilbert Rhodes. While looking for Rhodes, he ran into nurse Christell Olivo and told her that he was scared and asked her about the pain running down his left side. Cousin testified that, “to his knowledge,” he told Olivo that the pain had labegun while he was operating the stripping machine. Olivo then escorted him to the emergency room and presented him to the triage nurse, Barbara Boles. Cousin initially testified that he was scared that he was having a heart attack and could not recall what he told Boles about his pain or how it began. Later, he testified that he did not know why he had been checked out for heart problems in the emergency room because he did not tell anyone that he thought he might be having a heart attack. He admitted on cross-examination that as far as he knows he did not tell Boles that he had been stripping floors when the pain began, but contradicted his earlier testimony by stating that he told Boles that he felt a pop in his neck, which caused the onset of the pain.

Cousin testified that Rhodes came to see him once while he was in the emergency room. Cousin testified that Rhodes stuck his head in the curtain and asked him how he was doing, he replied that he was fine, and Rhodes left. He said that he did not tell Rhodes what had happened because Rhodes did not ask him. Cousin testified that he did not ask to fill out an accident report that night because that was Rhodes’ job, not his. Cousin admitted that he had been instructed to fill out a First Report of Injury immediately after an incident that caused pain, and in fact had filled out such a report immediately after a previous work-related injury, but did not do so in this case because “it wasn’t no pain. Wasn’t that great of pain.”

When Cousin was discharged from the emergency room at five o’clock the following morning, he went home without speaking to anyone about the accident or how it occurred. Cousin claimed that he called Michael Parker the next morning to report the accident. He stated that he told Parker about the stripping machine, but not the pop in his neck, and Parker told him to fill out a report.

|4Cousin went to see Dr. Clinton Sharp, his family physician, on August 17, 2001, two days after the alleged accident, complaining of left shoulder and arm pain. He told Dr. Sharp at this time that the pain had started while he was operating a stripping machine and that he had gone to the emergency room. Dr. Sharp did a chest x-ray, which was normal, and recommended that Cousin have an MRI, which was not done.

On August 24, 2001, Cousin went to see Dr. Miguel Culasso at the Instant Family Care Medical Center complaining of pain in his left arm, which had begun on August 15, 2001 when he was at work stripping floors and felt a pop in his left shoulder. This is the first time that Cousin mentioned the pop to anyone.

Cousin ultimately was referred to Dr. Gutnisky, a neurosurgeon, who performed a cervical fusion and discectomy. Dr. Gut-nisky testified that there is no way to tell, other than by the history given by Cousin, whether his herniated disc was caused by a degenerative condition or a traumatic injury-

It is uncontested that Cousin had preexisting problems with his neck. On July 25, 2001, Cousin went to the VA Hospital complaining of intermittent neck pain over a period of two weeks and a headache in the back of his head and upper neck lasting for three weeks. On August 9, 2001, Cousin went to Dr. Sharp complaining of neck pain and stiffness and numbness in his hands. Dr. Sharp diagnosed him with cervical arthralgia. Cousin testified that his pre-existing neck problem was different from the pain he had after the accident and also that the pre-existing neck problem had been fully resolved by the time of the accident.

At trial, evidence was presented that contradicted Cousin’s testimony. Nurse Christell Olivo testified that Cousin approached her in the hallway of | Bthe hospital and told her that he was having left arm, neck, and chest pain. She testified that she does not recall Cousin indicating to her what he was doing when the pain began, but did state that if Cousin had told her that he was operating a stripping machine and felt a pop in his neck and the onset of pain, she would not have suspected a heart problem and would have instructed him to file an accident report.

Barbara Boles, the triage nurse, testified that Cousin presented to her complaining of “left chest pain, to his neck, down his left shoulder, and left arm.” He told her that he had been having these symptoms for three days. When asked if anything relieved the pain he was experiencing, Cousin told Boles that sitting and relaxing helped. Furthermore, when asked if he had been involved in any kind of accident, Cousin denied injury. Boles testified that Cousin did not tell her about the pop he felt in his neck while he was operating the stripping machine, and if he had, she would have indicated on her report that this was a work-related illness and that he was a Workwise client and would have advised him to fill out an accident report. If he had even mentioned that he had been stripping floors when the pain began, without mentioning the pop, she still would have taken these additional actions.

Gilbert Rhodes, Cousin’s supervisor, testified that he first became aware that Cousin was having a problem when another employee told him that Cousin was in the emergency room. Rhodes went to the emergency room and found Cousin in triage. When Rhodes asked him what had happened, Cousin told him that he had pain in his neck going down his arm. Cousin also told him that he had high blood pressure and was not taking any chances, so he went to the emergency room. Rhodes did not ask Cousin what had caused this pain, but he testified that Cousin did not tell him that | fihe had had any sort of accident or that his neck pain had been caused by operating the stripping machine. Rhodes testified that if Cousin had told him that the pain had begun while he was stripping the floors and felt a pop in his neck, he would have filled out an occurrence report. Later, while Cousin was in the examining room, Rhodes went to see him again. Cousin again did not tell Rhodes about feeling a pop in his neck while stripping the floors.

The emergency room report of Dr. Archie Tatford states that Cousin presented to the emergency room complaining of left neck, shoulder, and arm pain while working on the floors that evening. Cousin denied any chest pain to Dr. Tatford, but Tatford noted that Cousin had reported chest pain to both the charge nurse and the triage nurse. Cousin described the pain as a previous pain he had seen Dr. Sharp for, which had been occurring off and on for three days but had worsened that evening.

Upon review of the evidence, the OWC judge found that Cousin failed to carry his burden of proving a work-related accident. Specifically, the OWC judge noted that Cousin had multiple opportunities the night of the alleged accident to describe the accident and how his neck “popped,” but he did not, and therefore he failed to provide sufficient corroboration of the alleged accident. The OWC judge stated that it was ultimately a credibility call as to what happened immediately following the alleged accident, and Cousin failed to carry his burden by a preponderance of the evidence that he sustained an accident. Cousin’s claim was dismissed with prejudice.

Cousin appealed this judgment, alleging that the trial court clearly erred in concluding that he did not sustain an on-the-job accident on August 15, 2001 because he failed to carry his burden of proof that an accident occurred.

I DISCUSSION

Standard of Review

Cousin first argues that although a trial court’s determination that a work-related accident did not occur is normally subject to the manifest error or clearly wrong standard of review, Bruno v. Harbert Int’l, Inc., 593 So.2d 357, 361 (La.1992), under Bolton v. B E & K Construction, 01-0486 (La.App. 1 Cir. 6/21/02) 822 So.2d 29, this court should conduct a de novo review of the evidence, giving no deference to the OWC judge’s findings, because the OWC judge relied on incompetent evidence in reaching his decision.

Specifically, Cousin alleges that the testimony of nurse Christell Olivo, triage nurse Barbara Boles, and supervisor Gilbert Rhodes was not competent and should not have been relied upon by the OWC judge. Cousin argues that because Olivo testified that she vaguely remembered the incident and could not recall Cousin telling her that he was injured while operating a stripping machine, Cousin’s testimony that he informed her that he was injured while stripping the floors was uncontradicted. Because of this, Cousin claims that Olivo’s testimony was incompetent evidence and should not have been considered by the trial court. Cousin also argues that Boles’ testimony was incompetent and likewise should not have been considered because she had no independent recollection of Cousin’s emergency room visit and could testify only after refreshing her recollection with her report. Cousin also asserted that Boles’ testimony was incompetent because the report she relied upon to refresh her recollection contained one error and |shad another question left blank, and it could possibly contain other errors. Finally, Cousin alleges that the testimony of Gilbert Rhodes is incompetent evidence because he failed to fill out a report immediately as he should have done even if he thought Cousin was only having a heart attack at work. According to Cousin, since Rhodes did not perform his job correctly, his testimony should be disregarded.

If the OWC judge committed evi-dentiary error that interdicted his factual decision, this court would conduct a de novo review rather than a manifest error review. Bolton v. B E & K Construction, 01-0486 p. 3-4 (La.App. 1 Cir. 6/21/02), 822 So.2d 29, 32. Thus, the evidentiary issue must be addressed first.

OWC judges are not strictly bound by the technical rules of evidence. La. R.S. 23:1317(A). The applicable statute only requires that all findings of fact be based upon “competent evidence.” Bolton, 01-0486 at p. 3, 822 So.2d at 32. The basic concept of competency is that a witness may not testify to a fact unless a foundation is laid from which the trier of fact could conclude that the witness has personal knowledge of that fact. La.Code Evid. art. 602. If a witness lacks memory of events he or she witnessed, the facts may be recaptured by “jogging” the witness’ memory, either prior to or while the witness is testifying. La.Code Evid. art. 612.

The problems Cousin refers to with the testimony of Olivo, Boles, and Rhodes have nothing to do with their competency to testify; rather, these are credibility issues. Since the testimony of these witnesses was indeed competent evidence, we will not conduct a de novo review.

The applicable standard of review in this case is a two-part test: (1) the appellate court must find that from the record that there is a reasonable factual basis for the trier of fact’s findings, and (2) the appellate court must further determine that the record establishes that the finding is not manifestly erroneous (clearly wrong). Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Factual findings should not be reversed on appeal absent manifest error. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the appellate court may not reverse. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). Consequently, when there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous. Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 883 (La.1993); Sistler, 558 So.2d at 1112.

Proof of an Accident

Cousin argues that the OWC judge erred in finding that he did not meet his burden of proof that an accident occurred. An employee who sustains a personal injury by accident arising out of and in the course and scope of his employment is entitled to collect workers’ compensation benefits from his employer. La. R.S. 23:1081(A). The workers’ compensation claimant has the burden of proof to establish that a work-related accident occurred by a preponderance of the evidence. Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992). In determining whether a worker has shown by a preponderance of the evidence that an injury-causing accident occurred in the course and scope of employment, the trier of fact is expected to focus on the issue of credibility because, absent contradictory circumstances and evidence, a claimant’s testimony is afforded great weight. Id. In Bruno, the Louisiana Supreme Court stated that a Imworker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident, and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Id. Therefore, if the worker testifies that he suffered an accident, a court must then look to see if the Bruno elements are satisfied. Coats v. American Tel. & Tel. Co., 95-2670 p. 5 (La.10/25/96), 681 So.2d 1243, 1245.

In the instant case, the OWC judge found that Cousin’s testimony regarding the occurrence of the accidence was not credible and that he failed to prove that an accident occurred. In his reasons for judgment, the OWC judge noted that Cousin had multiple opportunities the night of the alleged accident to describe how he had been injured, but he did not do so, and thus he failed to provide sufficient corroboration as to the alleged accident. Therefore, we must review the record to see whether the OWC judge was manifestly erroneous in finding that Cousin had not satisfied the elements of Bruno and thus failed to prove by a preponderance of the evidence that he suffered a work-related accident.

The OWC judge was not manifestly erroneous in finding that the second prong of Bruno, which requires that Cousin’s testimony be corroborated by the circumstances following the alleged event, was not satisfied. Cousin spoke with at least four different people at Slidell Memorial after his accident occurred — nurse Olivo, nurse Boles, Dr. Archie Tatford, and supervisor Gilbert Rhodes — but none testified that they were told about the stripping machine and the pop in his neck. Although Cousin argues that he did in fact tell nurse Olivo, nurse Boles, and Dr. Tat-ford about operating the stripping machine and feeling a pop in his neck, this is 111 contradicted by Olivo’s and Boles’ testimony and by Dr. Tatford’s report. The first mention in the record of the pop in Cousin’s neck is on August 24, 2001 in Dr. Culasso’s records. With the conflicting testimony concerning the circumstances surrounding the alleged accident, the OWC judge made a credibility call and discredited Cousin’s version of the events.

An OWC judge’s determinations as to whether a claimant’s testimony is credible, and whether the claimant has discharged his burden of proof, are factual determinations which will not be disturbed on review absent manifest error. Bruno, 593 So.2d at 361. After a thorough review of the record, we are unable to find manifest error in the findings of the OWC judge. Cousin provided no credible evidence to corroborate his testimony. There are two permissible views of the evidence in this case: (1) Cousin told the truth and there was an accident, or (2) Cousin did not tell the truth and there was no accident. The OWC judge chose the latter and did not commit manifest error in so doing.

DECREE

For the foregoing reasons, the August 5, 2002 judgment dismissing Cousin’s claim with prejudice is affirmed. All costs of this appeal are cast to Cousin.

AFFIRMED.

      . Apparently, Cousin did not have an MRI at that time because his insurance company would not pay for the MRI.

      . On the triage report, Boles recorded on the pain scale that Cousin’s pain would range from a 5 at best to a 2 at worst. She acknowledged at trial that this was an error and she should have recorded his pain as 2 at best to 5 at worst.

      . On the last page of the triage report, there was no response entered following "Date of Onset of Pain;” however, in the narrative portion of the report, she noted that he had been experiencing this pain off and on for three days.