author: 1(WOOD ARP, Judge.

text:
    Melissa Murphy LEGER v. James Dean LEGER.
    No. 2003-419.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 2003.

      Kenneth Michael Wright, Richard D. Moreno, Ike A. Hobaugh, Wright & Moreno, L.L.C., Lake Charles, LA, for Plaintiff/Appellant Melissa Murphy Leger.
    W. Thomas Barrett, III, Lake Charles, LA, for Defendant/Appellee James Dean Leger.
    Court composed of BILLIE COLOMBARO WOODARD, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.
   1(WOOD ARP, Judge.

This appeal involves the trial court’s decision, denying Melissa Leger, now Kier, to relocate with her children to Lake Jackson, Texas, where her current husband has obtained work. The children’s father opposed the relocation, and the trial court ruled in his favor. We find that it erred and reverse its ruling.

sj{ :Ji %

Melissa Leger Kier appeals the trial court’s denial of her motion to relocate her three minor children from Sulphur, Louisiana, to Lake Jackson, Texas.

Melissa and her husband, James Dean Leger (Dean), separated in the middle of June 2001. He obtained a judgment of divorce on February 1, 2002. The parties stipulated to a joint-custody plan, granting Melissa domiciliary status of the three children and outlining Dean’s visitation schedule. Furthermore, the parties in-eluded a provision agreeing that the children’s residence could not be removed to a different parish without an appropriate order of the court.

Both parties have remarried since their divorce. In July 2002, Melissa advised Dean that her current husband had obtained work in Lake Jackson, Texas, and that she intended to relocate the children there. Dean obtained a temporary restraining order on July 30, 2002, preventing her from moving the children to Texas. On August 19, 2002, she responded with a motion to dissolve the temporary restraining order and for a temporary relocation order. The matter was heard on January 21, 2003. The trial court denied Melissa’s motion to relocate the children. She appeals that judgment, asserting that the trial court erred in finding that it was not in the children’s best interest to relocate with her to Texas and in failing to address, with any particularity, the statutory factors applicable to the determination. Failure to Address Factors with Particularity

In Johnson v. Johnson, we found that the trial court erred in failing to analyze the factors set out in the relocation statute, La.R.S. 9:355.12, even though it listed Ijjthem in its reasons for judgment. The same is true in the case at bar. While the trial court listed the factors to be considered, it did not consider the factors individually concerning the particular evidence presented. It simply noted “what a heavy burden the question of relocation has on all of the parties involved,” followed by a discussion of the general problems that relocation of any parent could create. It then pointed out that the children were excelling in school and stated, “This court is unwilling to put the children in ANY RISK associated with a move to Lake Jackson, Texas.... ” This language implies that, under this standard, no relocation would be acceptable and that the trial court imposed a higher burden on Melissa than the law requires.

When a trial court incorrectly applies a principle of law, which causes a substantial deprivation of a party’s rights or materially affects the disposition, it commits a legal error. Applying the wrong burden of proof is not only an incorrect application of the law, it is inherently prejudicial because it casts a more onerous standard than the law requires on one of the parties. When a trial court commits a prejudicial legal error which affects its analysis of the facts, we are not bound by the manifest-error standard; rather, we must conduct an de novo review if the record before us is complete. Because we have a complete record in the instant case, we continue with an independent review, applying the correct standard.

Under the factors, which La.R.S. 9:355.12 provides, Melissa was required to show, both, that her desire to relocate the children was in good faith and that the move would be in the children’s best interest. Accordingly, we must analyze the evidence pertaining to the relocation factors and determine whether Melissa met her burden of proof.

Good Faith

Melissa’s current husband quit his previous long-term job in Sulphur, because it required so much travel that it was not conducive to having a family life. After-wards, he attempted to find work at a local plant but was unable to secure a job with any of them. Thus, he has accepted a position with Dow Chemical in Lake 1 sJackson, Texas. This position allows him to work full time and, at the same time, further his education; Dow is sending him to school to obtain his chemical process degree. He testified that, upon receiving his degree, his salary of $12.90 per hour will approximately double. Again, we find Johnson to be instructive. In that case, we found that the mother’s proposal to relocate was in good faith, given the fact that her current husband had obtained a job in the new location with better pay and additional benefits. Likewise, we find that the record demonstrates that Melissa’s proposal to relocate to Lake Jackson, where her husband’s new job is, was made in good faith. Additionally, she has secured a position in Lake Jackson, making $13.08 per hour. She testified that her hours are flexible and will allow her to take care of all the children’s needs.

Dean attempted to show that Melissa did not provide a legitimate reason for the move because there are two schools in the Sulphur area which offer the same training and degree that her husband is pursuing at Dow. However, we do not agree, that this, in any way, undermines Melissa’s reasons for wanting to relocate. While the same educational programs are offered in the Sulphur area, this does not mean that Melissa’s husband is presented with the same opportunities. He would not likely be able to work full time while attending school in Sulphur, diminishing his and Melissa’s standard of living and ability to provide for the children. And, in fact, he would likely have to secure loans to pay for tuition, therefore, acquiring debts that would affect the family’s standard of living in the future. Thus, we find that Melissa has proved that she proposed the relocation in good faith.

We now turn to an analysis of the relocation factors in La.R.S. 9:355.12. Relocation Factors

Louisiana Revised Statutes 9:355.12 provides eight factors that the court is required to consider when determining whether a proposed relocation is appropriate. We will consider each one in light of the evidence in the record:

(1) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate and with the \Lnon-relocating parent, siblings, and other significant persons in the child’s life.

Melissa has always been the children’s primary caregiver. She testified that her parents have lived within walking distance of them for the last ten years. In fact, when she and the children recently moved out of the marital residence, they moved in with her parents. Additionally, while Melissa has been working in Lake Jackson, the children have been living with her parents. Therefore, it is obvious that the children are very close to their maternal grandparents. However, Melissa also testified that her mother would be coming with her to Lake Jackson for a while to aid in the transition and that her parents hoped to move closer to them if she was permitted to relocate the children there. Conversely, there is no evidence that the children have a very active relationship with Dean’s parents, even though they live nearby.

It is undisputed that the children have a close relationship with their father. Melissa confirmed that he attended the children’s school or extracurricular activities whenever he could. He asserts that he will not be able to maintain involvement in their lives to the extent that he currently does. He said:

I will not be involved in their everyday activities, their activities after school, the rodeo, 4-H. I’ve always been there with them and I will not be able to mingle in their activities, their everyday life and be a father like I have always been to them.

We agree that his involvement will be more limited by the move. In fact, we find this to be the strongest evidence presented for denying the relocation. However, the testimony revealed that many of the activities that Dean and the children used to do together have ceased. For example, he was very involved when they used to rodeo. However, they no longer do that. They were also involved in 4-H and used to show animals. However, after the divorce, he had to sell the animals. Thus, we recognize that Dean is unable to participate with the children in the activities they once used to do together. However, the record reveals that this inability resulted from the divorce, and many of the limitations he asserts that the move will create, are actually already in existence due to the divorce. Thus, the relocation will not curtail his current activities with the children to the extent that he asserts.

\ñ(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.

The two daughters are ages eight and twelve; the son is six years old. As the trial court pointed out, the children are excelling in their current school. However, there is no reason to believe that the move will adversely impact their development. In fact, Melissa homeschooled the two daughters for three years and, apparently, they were able to make a smooth transition when they were enrolled in their current school. The only evidence of any special needs of the children was that the oldest daughter has ADHD. Melissa testified that this was the initial reason for homeschooling them. Again, however, this child has made a smooth transition and is currently doing very well in school.

(S) The feasibility of preserving the relationship between the non-relocating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.

While the extra travel involved will obviously be more burdensome to the parties, we must also recognize that the distance between Lake Jackson and Sulphur is not so great as to require a modification of the visitation schedule. The testimony revealed that the move will not prevent Dean from exercising his visitations rights to the full extent provided for in the joint-custody agreement.

(4) The child’s preference, taking into consideration the age and maturity of the child.

The children did not testify, and the only testimony in this regard was Melissa’s testimony that they are excited about the move but feel guilty about leaving their dad. This is completely understandable,, but as pointed out already, they will be able to exercise the same visitation with their father as before.

(5) Whether there is an established pattern of conduct of the parent seeking the relocation, either to promote or thwart the relationship of the child and the non-relocating party.

| fiMelissa testified that she is agreeable to making driving arrangements that are not too burdensome on Dean. Unfortunately, there was some testimony that casts doubt on her cooperation in promoting and fostering his relationship with the children. For example, she had agreed to give him additional visitation on specific occasions and, then, changed her mind and denied this at the last minute. He was denied additional visitation even during the time she was in Texas and the children were with her parents. When her parents left the country for a week, she did not tell him but left the children in someone else’s care. While we do not reward or condone her conduct, we recognize that she was not required to grant him this visitation, as it was in addition to his regular visitation, and there is no evidence that she attempted to interfere with that. Additionally, we recognize that these proceedings were pending during that time, and Dean, himself, testified that she had told him that the reason for not granting him additional visitation while she was in Texas was that she did not want to lose custody of the children. Therefore, we trust that when the court proceedings are over and Melissa is allowed to move with the children, her behavior in this regard will improve and that she will promote and foster the relationship between Dean and the children, as this seems to be her behavior before this litigation.

(6) Whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity.

In this regard, we must take into account that Melissa is, in fact, remarried. Part of the reason her current husband quit his job in Sulphur was that the extended travel which was -required for the job was not conducive to a good family life. The move will not only allow him to eventually make a higher salary and provide more financial stability for the children, it will also allow him to spend more time with them, providing more emotional support and a more stable home life than if he had to travel all the time. There was no testimony that the children will not have the same educational opportunities in Lake Jackson. Melissa has already visited the school they would be attending, and she testified that one of the children had actually asked to go and see the school.

(7) The reasons of each parent for seeking or opposing the relocation.

|7We have addressed these within our analysis of the above factors.

(8) Any other factors affecting the best interest of the child.

There is no evidence in the record of any special factors that we need to consider in addition to those already considered.

Therefore, we find that each one of the factors weighs in favor of permitting the children to relocate and that the trial court erred in finding that Melissa did not meet her burden of proof. We reverse the trial court’s judgment and grant Melissa’s motion to relocate.

CONCLUSION

Melissa Leger Kier appeals a judgment of the trial court, denying her motion to relocate her children to Lake Jackson, Texas. We reverse the trial court’s judgment and grant the relocation.

REVERSED.

      . 99-1933 (La.App. 3 Cir. 4/19/00), 759 So.2d 257, writ denied, 00-1425 (La.5/31/00), 762 So.2d 635.

      . Evans v. Lungrin, 97-541 (La.2/6/98), 708 So.2d 731.

      . Id.

      . La.R.S. 9:355.13; Johnson, 759 So.2d 257.

      . 759 So.2d 257.


source: Caselaw Access Project

author: I,SULLIVAN, Judge.

license: Public Domain

text:
    Sheryl STELLY v. HEALTH SOUTH REHABILITATION.
    No. 2003-171.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 2003.

      Donald L. Mayeux, Attorney at Law, Eunice, LA, Counsel for Plaintiff/Appellee: Sheryl Stelly.
    Russell L. Sylvester, Brittain & Sylvester, Natchitoches, LA, Counsel for Defendant/Appellant: Health South Rehabilitation.
    Court composed of BILLIE COLOMBARO WOODARD, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.
   I,SULLIVAN, Judge.

Health South Rehabilitation Hospital (Health South) and ESIS Insurance Company appeal a judgment awarding Sheryl Stelly, a former rehabilitation nursing technician: (1) temporary total disability benefits of $340/week from the date they were terminated, December 19, 2001; (2) back surgery recommended by her treating physicians, Dr. John Cobb and Dr. Daniel Hodges; (3) $2,000 in penalties for the refusal to authorize the surgery; (4) $8,500 in attorney fees; and (5) costs. For the following reasons, we affirm the judgment as amended below.

Discussion of the Record

Ms. Stelly alleges that she was injured on February 14, 2000, while transferring a patient from a wheelchair to a bed. After immediately reporting the accident to the duty nurse, she sought treatment at a hospital emergency room, per a supervisor’s instructions. She has not returned to work since the date of the accident.

Medical Records

An MRI of February 18, 2000 revealed a very small disc protrusion at L5-S1 later-alizing to the right and compressing the right nerve root only slightly. She was also seen by her family physician, Dr. Lu-ris Sanchez, who recommended an orthopedic consultation with Dr. Cobb.

On February 28, 2000, Ms. Stelly reported to Dr. Cobb that she was experiencing mild to severe headaches, numbness in both hands, and a stabbing, burning pain in the mid to low back area that radiated into both hips and legs. She rated her pain level as eight out of ten and stated that she could not sit or stand for long periods of time. After reviewing the MRI, which Dr. Cobb believed showed an abnormal L5-S1 disc, he diagnosed a sprain/ strain of the thoracolumbar area and a herniated nucleus propulsus at L5-S1, with anterior column failure and SI nerve root | ¡.irritation. Dr. Cobb recommended a physical therapy program, a selective nerve block at L5-S1, and referral to Dr. Hodges, a pain management specialist, for an EMG. On March 23, 2000, Dr. Hodges performed an upper-extremity EMG that yielded normal results.

At Defendants’ request, Ms. Stelly was examined by Dr. Gregory Gidman on May 5, 2000. During his examination, Dr. Gid-man noted Ms. Stelly exhibited moderate limitation upon leaning left and right and severe limitation upon hyperextension; however, he recorded three out of five positive Waddell signs, indicating that psychological factors were involved, and inconsistent results on straight leg raising. Dr. Gidman concluded that the examination revealed no objective findings, and he interpreted the MRI as “extremely benign.” He recommended a weight reduction program, home therapy, and medications such as anti-inflammatory drugs, muscle relaxants, and mild analgesics, but he did not agree with Dr. Cobb that a nerve block was necessary. Dr. Gidman also believed that she could perform light activities, with no lifting over twenty pounds.

On June 21, 2000, Dr. Cobb performed the nerve block, but at her return visit on July 12, 2000, Ms. Stelly stated that it did not give her much relief. At that time, Dr. Cobb first discussed performing a posteri- or lumbar interbody fusion at L5 SI. Upon this recommendation, Defendants again requested an examination by Dr. Gidman. On August 15, 2000, Dr. Gidman recorded a normal examination, even though Ms. Stelly reported that her symptoms had worsened since her last visit. Dr. Gidman disagreed that a fusion was necessary because he found no evidence of instability, and he did not believe that the protrusion shown on the MRI was causing her symptoms.

|sOn October 26, 2000, Ms. Stelly attempted a functional capacity evaluation (FCE) with Dr. Hodges, but testing was aborted because of her complaints of pain and because she began shaking throughout her body during some of the tests. She attempted a second FCE on November 22, 2000 at New Day Rehabilitation, but it, too, was not successfully completed based upon her complaints of pain and on the evaluator’s opinion that she exhibited sub-maximal effort.

On November 28, 2000, Dr. Thad Brous-sard, an orthopedic surgeon, examined Ms. Stelly at the request of the Office of Workers’ Compensation. At that visit, Ms. Stelly complained of pain every day that was aggravated by sitting, standing, bending, and lifting. She reported a similar accident that occurred in 1996, but stated that she only had intermittent discomfort before the present accident, which produced more intense symptoms. During the examination, Ms. Stelly complained of generalized tenderness in the low back, slightly worse on the right, but Dr. Broussard did not detect any spasm or any “true tension signs” that would indicate a compressed nerve. Dr. Broussard believed that the L5-S1 disc, which he described as “definitely protruding,” was the most likely cause of her symptoms, but he did not believe that the disc was compressing the nerve root. At that time, he could not say that surgery would improve Ms. Stelly’s condition, but he recommended a lower-extremity EMG and a repeat MRI. He also recommended an FCE, not knowing that Dr. Hodges had recently attempted one.

On March 28, 2001, Ms. Stelly underwent a repeat MRI that revealed minor desiccation and a minimal central disc bulge at L6-S1, with no evidence of nerve root displacement or compromise. After reviewing this test, Dr. Cobb continued to recommend surgery, noting that “she is really desiring additional help with the pain ]4and I have recommended surgery close to a year ago.” He also prescribed Paxil for depression, in addition to the Norco that she had been taking for pain.

In April of 2001, Dr. Cobb referred Ms. Stelly to Dr. Hodges for pain management, in light of her “unabating” complaints of low back pain radiating to both lower extremities. Dr. Hodges performed an EMG and nerve conduction study that indicated a mild right SI radiculitis. Interpreting these results as consistent with anatomic findings, Dr. Hodges thought it “imperative” that Ms. Stelly consider surgical intervention “sooner than later,” as he believed that a prolonged delay would result in continued nerve damage, even after surgery. When surgery was not approved by June of 2001, Dr. Hodges referred Ms. Stelly to the charity hospital system, even though an appointment was not available until May of 2002. In the meantime, he continued palliative pain management with Norco and added a prescription for Xanax, as Ms. Stelly was becoming increasingly anxious over pending legal issues. He considered her to be disabled from any form of employment.

On March 14, 2002, Dr. Harold Heit-kamp examined Ms. Stelly for Social Security disability purposes. Although he did not find spasm in the paralumbar area, Dr. Heitkamp noted that Ms. Stelly was very tender at L5-S1, with pressure on the right and left producing pain down the right thigh to the right ankle. He recorded decreased range of motion in forward flexion, extension, and lateral flexion of the lumbar spine, as well as straight leg raising positive for sciatic irritation on the right. He also noted decreased flexion in the right knee as opposed to full range of motion in the left. He interpreted x-rays as showing marked desiccation of the L5-S1 disc with spondylosis of SI. His impression, based upon the patient’s chart, history, and physical findings, was “desiccation L5 SI and a small herniated disc at this level with |Kmarked [r]adiculitis in both legs, more marked on the right leg.” He also commented that she “appears to be in quite a bit of pain now.” Aware that Ms. Stelly was awaiting evaluation at a charity hospital for “probable surgery for her herniated disc with marked [r]adiculitis,” Dr. Heitkamp believed that crutches would be beneficial until she underwent surgery. Based upon his findings of severe radiculi-tis in the right leg and marked limitation of motion, Dr. Heitkamp stated that there should be “no prolonged standing, no squatting, no walking, no sitting for any length of time.”

Dr. Gidman examined Ms. Stelly for a third time on August 7, 2001. He noted that she had moderate limitation on right and left lateral bending and hyperextension, but that her straight leg raising was markedly inconsistent and that, again, three out of five Waddell’s signs were positive, indicating that psychological factors were involved in her subjective complaints. Dr. Gidman did not believe that the “minimal bulge” on her MRI scans corroborated Dr. Hodges’ finding of an SI radiculitis, citing a report that similar protrusions have been found in 27% of normal individuals. Given that “the most recent MRI does not report any protrusion, just a minimal bulge with no evidence of any nerve root compromise or displacement,” Dr. Gidman assigned her a 0-5% body impairment, with a recommendation for home therapy, weight reduction, and return to sedentary to light work activities. He believed that a lumbar fusion offered her only a small chance of functional improvement.

On May 12, 2002, Dr. Broussard examined Ms. Stelly for a second time. He recorded generalized tenderness in the pa-ravertebral region, but without spasm; numbness on pin prick; and equal, but diminished, reflexes. He also noted that she complained of pain on simple pinching of the skin, without pressure in the deeper musculoskeletal areas, and that she exhibited self-limiting maneuvers. He had no 1 fidoubt that her L5-S1 disc was damaged, and that she most likely had an inflammation of the SI nerve root, but he questioned whether surgery would make her functionally better, given that she did not have “hard objective physical findings.” However, he also recognized that more aggressive surgeons would consider surgery, based upon her chronic pain and MRI and EMG results, and that he would not “stand in the way” if the patient and the surgeon chose such a course of treatment. On June 11, 2002, he issued a supplemental report after reviewing the second MRI scan. He believed that the film clearly showed changes in the L5-S1 disc. It was definitely protruding and pushing more on the right side, which he considered consistent with an SI radiculitis on the right side. However, he did not change his previous recommendations, as he did not believe that the disc was obviously compressing the spinal elements.

Ms. Stelly continued pain management with Dr. Hodges, who believed that she suffered from symptomatic L5-S1 disc disease, progressive lumbosacral instability, and a lumbar radiculopathy. On July 10, 2002, he administered a series of steroid injections into the left and right sacroiliac joints, iliolumbar ligaments, and paraspinal muscles to reduce inflammation, but Ms. Stelly reported that the injections helped only for a few days. He also added Rem-eron, an anti-depressant, to her medications for her “clearly escalating anxiety and depression.” Both he and Dr. Cobb did not believe that she was capable of working pending surgery.

On January 10, 2002, Dr. Gidman approved a modified “rehab tech” position that Health South would offer to Ms. Stelly by correspondence dated January 25, 2002. Ms. Stelly’s benefits, however, had been terminated on December 19, 2001.

17Trial Testimony

At trial, Ms. Stelly acknowledged that she had previously been restricted to light-duty employment after a work-related back injury in 1996. However, she testified that by the time she applied for the position at Health South in 1999, she was only experiencing intermittent backaches and was able to perform all the duties of her job, including the lifting requirements. She further testified that she regularly worked overtime at Health South of up to sixteen hours a day, seven days a week, and that she often volunteered to work on her day off. She admitted that she did not report the earlier back injury on Health South’s post job-offer questionnaire because she was not having back problems at that time, but she did note that she had filed a previous workers’ compensation claim and she insisted that she had discussed her prior injury with the person that interviewed her, who in turn called that employer for a reference. She testified that she did not accept the modified position approved by Dr. Gidman because she could not tolerate being on her feet most of the day and because she believed she could not handle all aspects of patient care that would be required when she answered their calls.

Barbara Stelly, Health South’s human resource manager, testified that someone restricted to light duty would not have been qualified for the original rehab nursing position, as it was a strenuous job that required much lifting. She further testified that an investigation into Ms. Stelly’s 2000 accident revealed that no one had prior knowledge of her first back injury, although she also acknowledged that she was not hired by Health South until thirteen months after Ms. Stelly’s accident there.

| ¡¿Temporary Total Disability Benefits

Defendants argue that the workers’ compensation judge (WCJ) erred in awarding Ms. Stelly temporary total disability benefits because the medical evidence indicates that she can now perform light-duty work. They further contend that, because she had been previously restricted to fight duty as the result of her 1996 accident, any disability that she may now suffer is not the result of her February 2000 accident at Health South.

To recover temporary disability benefits, an employee must prove:

by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.

La.R.S. 23:1221(l)(c).

In Johnson v. NATCO (Port of New Iberia), 94-1236, p. 4 (La.App. 3 Cir. 3/1/95), 651 So.2d 494, 496-97 (citations omitted), we reiterated the following principles for reviewing a workers’ compensation temporary total disability claim:

The finding of disability within the framework of workers’ compensation law is a legal rather than purely medical determination. It is the totality of the evidence, both medical and lay testimony, which must be examined by the trial court in making its determination on the question of disability and it is the function of the court to assess the weight to be accorded such testimony. The opinion of a physician or other medical expert does not necessarily establish the existence of vel non a legal disability and the court may accept or reject such opinion testimony depending upon what impression the qualifications, credibility and testimony the particular expert makes upon the court. As a general rule, the testimony of a treating physician should be given more weight than that of a physician who examined a claimant for diagnostic purposes. However, the positive findings of medical experts are to be afforded greater weight than negative findings as to the existence or not of a particular condition. Further, the trial judge’s decision to accept as more credible medical testimony favoring a 13disability finding versus that tending to disprove such and his resulting findings of fact are entitled to great weight on appeal.

In arguing that the WCJ erred, Defendants point to a report of Dr. Cobb suggesting that Ms. Stelly can perform light duty and Dr. Gidman’s approval of the modified job position as within her capabilities. In a report of April 11, 2001, Dr. Cobb reiterated his recommendation for surgery, then continued: “I would think, if she is unable to have the surgery, that perhaps she can function at a light work category with some restrictions regarding her back and leg.”

The WCJ focused on the word “perhaps” in Dr. Cobb’s report, finding that it did not amount to an unconditional release, particularly when considered with Dr. Cobb’s longstanding belief that surgery was necessary. We also note that Dr. Cobb would later issue three slips stating that Ms. Stelly was disabled pending treatment. As to the modified position, the WCJ apparently accepted Ms. Stelly’s testimony that she could not be on her feet all day and that she could not perform certain aspects of patient care unassisted. Citing a medical report that Ms. Stelly should not be placed in a position where she had to exert “maximum effort,” the WCJ concluded that Ms. Stelly would be unable to perform the modified position, as it did not specify that someone would assist her in handling the varying needs of patients. The WCJ also relied on the objective results from the EMG and MRI that Drs. Cobb, Hodges, and Broussard considered to be consistent with her complaints, noting that “[t]he only physician out of the group who seems to think that the L-5/S-1 disk bulge or protrusion is insignificant is Dr. Gidman.” We also point out that Dr. Heitkamp recommended that Ms. Stelly use crutches pending surgery and that Dr. Hodges recommended the use of a cane. Based upon this record, we find no error in the award of temporary total disability benefits.

ImSurgery

Defendants next argue that the WCJ erred in ordering the surgery recommended by Dr. Cobb, given that the court-appointed expert, Dr. Broussard, testified that he would not personally perform surgery on Ms. Stelly and that Dr. Gidman was adamant in his opinion that surgery would likely “hurt” rather than help her.

Although Dr. Broussard said that he would personally decline performing surgery on this patient, he further stated:

There is not doubt in my mind that more aggressive surgeons would perform surgery on this patient based on her chronic pain, based on the findings of the MRI, and based on the electrical diagnostic studies and certainly an argument can be made for that. If the patient and her physicians were willing to undertake the risk of surgery based on those findings, which are documented in the records, then I certainly would not stand in the way of such.

(Emphasis added.)

Dr. Cobb and Dr. Hodges had repeatedly recommended surgery throughout their treatment of Ms. Stelly. Dr. Hodges, who saw her the most times, expressed concern that the delay in treatment would result in additional nerve damage, which would persist even with surgery. Assuming that she would be having “probable surgery for her herniated disc with marked [rjadiculitis,” Dr. Heitkamp opined that “crutches would be beneficial until she has her surgery.” Although Dr. Broussard did not personally agree with Drs. Cobb and Hodges, he recognized the reasonableness of their position. In contrast to Dr. Gidman, who stated that the MRI did not demonstrate any pathology to indicate that Ms. Stelly’s symptoms were caused by the L5-S1 disc and who did not believe that she had a radiculitis, Dr. Broussard stated that the L5-S1 disc was “definitely protruding” and was the most likely cause of the | ^radiculitis. Given that Dr. Gidman was the only physician not to acknowledge that Ms. Stelly had a radiculitis, we find no error in the WCJ’s rejection of his recommendations.

Penalties and Attorney Fees

In its oral reasons, the WCJ awarded Ms. Stelly $2,000 in penalties and $8,500 in attorney fees for the discontinuance of her indemnity benefits and $2,000 in penalties for the failure to authorize her surgery. The written judgment, however, did not include the penalty award for the discontinuance of benefits.

The discontinuance of benefits is governed by La.R.S. 23:1201.2. Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41. The failure to authorize a medical procedure is governed by La.R.S. 28:1201(F). Authement v. Shappert Eng’g, 02-1631 (La.2/25/03), 840 So.2d 1181. These statutes provide for different remedies and different standards of conduct.

Under Section 1201.2, only attorney fees are recoverable for the discontinuance of benefits when that action is found to be “arbitrary, capricious, or without probable cause.” “Arbitrary and capricious behavior consists of willful and unreasoning action, without consideration and regard for facts and circumstances presented, or of seemingly unfounded motivation.” Brown v. Texas-LA Cartage, 98-1063, pp. 8-9 (La.12/1/98), 721 So.2d 885, 890. Under Section 1201(F), both penalties and attorney fees may be awarded for the failure to provide timely payment of benefits or medical expenses, unless, as provided in Section 1201(F)(2), the claim is “reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.” “Depending on the circumstances, a failure to authorize treatment is effectively a failure to furnish treatment” that can result in the imposition | ^of penalties and attorney fees. Authement, 840 So.2d at 1187. “[I]n order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base his denial of benefits.” Brown, 721 So.2d at 890.

The decision to award penalties and attorney fees is a factual determination that will not be reversed on appeal absent a finding of manifest error. Colonial Nursing Home v. Bradford, 02-588 (La.App. 3 Cir. 12/30/02), 884 So.2d 1262, writ denied, 03-364 (La.4/21/03), 841 So.2d 802.

In penalizing Defendants for both the discontinuance of benefits and the refusal to authorize surgery, the WCJ expressed concern that Defendants relied upon Dr. Gidman’s refusal to attach any significance to the positive findings of the MRI and EMG, whereas all the other doctors, including the court-appointed expert, agreed that those tests provided objective corroboration for Ms. Stelly’s claim of an injured disc with radiculitis. Commenting on the “great delay” in their refusal to authorize surgery, the WCJ concluded that they made “every attempt ... with Doctor Gid-man to cut off the recommendation of Doctor Cobb for surgery,” even when the tests recommended by the various doctors yielded positive results that confirmed her problem. The WCJ also concluded that Dr. Broussard’s testimony demonstrated the reasonableness of Dr. Cobb’s position. Upon review of the record, we find no error in the WCJ’s characterization of the evidence and in his conclusions of fact.

Accordingly, the awards for penalties and attorney fees as they appear in the written judgment are affirmed. Ms. Stelly’s request that we reinstate the penalty for discontinuance of benefits is denied, as penalties are clearly not recoverable under La.R.S. 23:1201.2.

| ^Duration of Disability, Future Medical Expenses, and Legal Interest

Defendants next ask that we correct the judgment in three respects. They first argue that the judgment provides for an improper duration of disability, as it orders weekly benefits to continue “as long as the plaintiff is determined to be disabled.” They also contend its award of “all related medical expenses during plaintiffs disability” amounts to an improper award of future medical expenses. Finally, they point out that the judgment awards interest on penalties and attorney fees from the date of judicial demand rather than from the date of the award.

Louisiana Revised Statutes 23:1221(l)(d) provides that an award of temporary total disability benefits shall cease “when the physical condition of the employee has resolved itself to the point that a reasonably rehable determination of the extent of disability of the employee may be made and the employee’s physical condition has improved to the point that continued, regular treatment by a physician is not required.” We hereby amend the judgment to conform to this statute.

Under La.R.S. 23:1203(A), an employer is obligated to furnish an employee who has a compensable claim “all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of this state as legal.” As we explained in Jacquet v. Southern Structures, Inc., 97-1696, p. 8 (La.App. 3 Cir. 5/20/98), 713 So.2d 723, 728 (emphasis added), “An award of compensation benefits for future medical expenses is separate and distinct from an award of disability benefits. An injured employee’s entitlement to benefits for medical expenses exists even if he returns to work, provided he needs further medical treatment for the work-related injury.” Thus, the judgment incorrectly awards medical expenses “during plaintiffs disability,” as the right to those benefits li4may extend beyond the period of disability. Although future medical expenses were awarded in Jacquet, the court in Prevost v. Jobbers Oil Transport Co., 95-224, p. 5 (La.App. 1 Cir. 10/6/95), 665 So.2d 400, 404, writ denied, 96-440 (La.4/8/96), 671 So.2d 336, recpgnized that such an award is unnecessary because “the right to claim such expenses is always reserved to the plaintiff.” Accordingly, we affirm the judgment insofar as it recognizes the right to receive surgery and other related medical expenses, but we amend it to delete the phrase “during plaintiffs disability” in conformity with La.R.S. 23:1203(A).

In Sharbono v. Steve Lang & Son Loggers, 97-110, p. 11 (La.7/1/97), 696 So.2d 1382, 1389 (emphasis added), the supreme court held:

Because awards of penalties and attorney’s fees are not automatic in the worker’s compensation setting, but rather rest within the discretion of the hearing officer, they come due, if at all, only on the date of their award by the officer; thus, such awards may not earn interest until after that date.

In the present case, the WCJ incorrectly awarded interest on penalties and attorney fees from the date of judicial demand. The judgment is hereby amended to re-fleet that interest on those awards commences from the date of judgment.

Decree

For the above reasons, the judgment of the Office of Workers’ Compensation is amended to conform with La.R.S. 28:1221(l)(d) and La.R.S. 23:1203(A) and to award interest on penalties and attorney fees from the date of judgment rather than the date of judicial demand. In all other respects, the written judgment is affirmed. Costs of this appeal are assessed to Defendants, Health South Rehabilitation Hospital and ESIS Insurance Company.

AFFIRMED AS AMENDED.


author: | .PETERS, J. | .SAUNDERS, J.,

text:
    Kenneth HAYNES v. WILLIAMS FENCE AND ALUMINUM.
    No. 01-0026.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 2003.
    George A. Flournoy, Flournoy, Doggett & Losavio, Alexandria, LA, for Plaintiff/Appellant, Kenneth Haynes.
    Bradley J. Gadel, Percy, Smith, Foote & Gadel, Alexandria, LA, for Defendant/Ap-pellee, Williams Fence and Aluminum.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and BILLY H. EZELL,  Judges.

       Honorable Billy H. Ezell, Judge, sitting as the successor to Judge Henry L. Yelverton, retired.

   | .PETERS, J.

We revisit this case on remand from the supreme court for consideration of Haynes’s claim for attorney fees regarding WFA’s discontinuance of vocational rehabilitation services. See Fontenot v. Reddell Vidrine Water Dist., 02-0439, 02-0442, 02-0478 (La.1/14/03), 836 So.2d 14. In its opinion, the supreme court held that “for purposes of vocational rehabilitation, it is the duty of the vocational rehabilitation consultant to examine the job pool in the worker’s geographic area.” Id. at 28. Thus, the supreme court reversed our original holding that WFA had discharged its obligation by offering Haynes a modified light-duty position with WFA in Pine-ville, Louisiana, WFA’s geographic region, rather than in Breaux Bridge, Louisiana, Haynes’s geographic region after his move from the Pineville area. In light of the supreme court’s pronouncements, we now revisit Haynes’s contention that the workers’ compensation judge erred in failing to address the arbitrary discontinuance of vocational rehabilitation.

Louisiana Revised Statutes 23:1201.2 provides in part: “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.” Importantly, “an employer should not be penalized for bringing a close legal issue to court.” Burruss v. Centro Mgmt., Inc., 00-1274, p. 2 (La.App. 3 Cir. 2/28/01), 780 So.2d 630, 631. In the instant case, a substantial legal issue existed, as evidenced by the discrepancy in the views expressed in the supreme court’s majority opinion, the dissenting opinion, and our original opinion. The legislature’s use of the disjunctive “or” in La.R.S. 23:1221(3) (c) (i) coupled with a lack of prior jurisprudence from the supreme court on the issue | ¡.provided WFA with reasonable grounds to discontinue benefits. Thus, WFA was not arbitrary, capricious, or without probable cause in discontinuing benefits. Accordingly, we affirm the workers’ compensation judge’s implicit denial of attorney fees in this regard. We assess costs in the same manner as in our original opinion.

AFFIRMED AS TO THE LIMITED ISSUE BEFORE THE COURT.

SAUNDERS, J., dissents and assigns written reasons.

| .SAUNDERS, J.,

dissents.

As stated by the majority, this ease comes to us on remand from the supreme court. In our opinion on the original appeal of the matter we held that Mr. Hayes was not entitled to attorney fees based on the defendant’s discontinuance of vocational rehabilitation. In that opinion we stated, “the employer is required to prove that the job was available to the employee in either 'the employee’s or employer’s community or reasonable geographic region’.” Haynes v. Williams Fence and Aluminum, 01-0026, p. 27 (La.App. 3 Cir. 7/25/01), 805 So.2d 215, 232.

The supreme court addressed this specific issue with respect to Mr. Haynes’ case in Haynes v. Williams Fence and Aluminum, 02-0439, 02-0442, 02-0478, pp. 20-21 (La.1/14/03), 836 So.2d 14, 28, where it stated:

La.Rev.Stat. Ann. § 23:1221(3)(c)(i) provides that for purposes of determining supplemental earnings benefits it is appropriate to consider employment that is “proven available to the employee in the employee’s or employer’s community or reasonable geographic region.” Accordingly, as regards supplemental earnings the inquiry must focus on employment shown available in either the employee’s or the employer’s geographic area.
On the other hand, La.Rev.Stat. Ann. § 23:1226(B)(2) provides that for purposes of rehabilitation services, “[wjhen-ever possible, employment in a worker’s local job pool must be considered and selected prior to consideration of employment in a worker’s statewide job pool.” Accordingly, for purposes of vocational rehabilitation, it is the duty of the vocational rehabilitation consultant to examine the job |2pool in the worker’s geographic area. The goal of rehabilitation services is to return a disabled worker to work as soon as possible after an injury occurs. La.Rev.Stat. Ann. § 23:1226(B)(1). To effectuate this goal La.Rev.Stat. Ann. § 23:1226(B)(1) lists prioritized options, the first two of which are to return the worker to the same position or a modified position. In the present case, these first two prioritiza-tions were no longer appropriate options because of the passage of time since the date of injury and because financial circumstances required Haynes to relocate a significant distance from the place of his former employment.

The majority finds that, due to the legislature’s use of the disjunctive “or” in La. R.S. 23:1221(3)(c)(i), the employer was not arbitrary and capricious in refusing to assist Mr. Haynes in finding employment in the Breaux Bridge geographic region.

The majority’s opinion is in direct contradiction to the supreme court’s holding cited above, which specifically addressed the issue of Mr. Haynes’ request for attorney fees for the arbitrary and capricious discontinuance of vocational rehabilitation services in this matter. In addition to the reasons cited by the supreme court, it is quite simply unreasonable for the defendant to force Mr. Haynes to find employment in the Pineville region after his relocation to Breaux Bridge. Despite the fact that the statute provides for employment in either community, it seems clear that Williams Fence was utilizing a technicality of the statutory language to escape it’s legal obligation to assist Mr. Haynes in finding employment. This is a clear example of the arbitrary and capricious behavior specifically addressed by La.R.S. 23:1202.2, and which requires payment of attorney’s fees.

In any event, it seems clear that legislative intent and the dictates of equity all require an reversal of the trial court on this issue. Accordingly, I respectfully dissent.


author: JjPER CURIAM.

text:
    State of Louisiana CITY OF LEESVILLE, Plaintiff-Respondent, v. Robert L. FOSTER, Defendant-Relator.
    Nos. KA03-788, KW03-807.
    Court of Appeal of Louisiana, Third Circuit.
    July 11, 2003.
    Before Judges SYLVIA R. COOKS, JIMMIE C. PETERS, GLENN B. GREMILLION.
   JjPER CURIAM.

An appeal was lodged with this court pursuant to a motion and order for appeal from a Leesville City Court judgment. Additionally, the Defendant filed a separate writ of review from this same judgment. A review of the record in this matter reveals that Defendant was found guilty of violating a city ordinance.

La.R.S. 13:1896(B) sets forth the jurisdiction for review of criminal cases from a city court. This statute provides that La. Code Crim.P. art. 912.1 applies to all criminal cases tried under a state statute in a city court. In those cases involving trials in a city court on charges other than those involving a violation of a state statute, appeal is to the district court of the parish where the city court is located. Since the conviction currently before the court involves the violation of a city ordinance, the appeal would properly be to Vernon Parish District Court.

14Accordingly, we dismiss both Defendant’s appeal and his writ application.

APPEAL DISMISSED; WRIT DISMISSED.


author:
JjPICKETT, J.
      |1AMY, J.,

text:
    Angela CALK v. EPCO-CARBON DIOXIDE PRODUCTS, INC.
    02-1400.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 2003.

      Roy Seale Halcomb, Jr., Broussard, Bolton, Halcomb & Vizzier, Alexandria, LA, for Plaintiff/Appellant Angela Calk.
    Larry Dean Fryday, Jr., Law Firm of Grayson H. Brown, Baton Rouge, LA, for Defendant/Appellee EPCO Carbon Dioxide Products, Inc. Pickett, J.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, MARC T. AMY, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   JjPICKETT, J.

FACTS

Angela Calk filed a disputed claim for compensation benefits against her former employer, EPCO-Carbon Dioxide Products, Inc. (EPCO), seeking an increase in supplemental earnings benefits (SEBs), penalties and attorney fees. The facts are not in dispute.

On May 28,1994, Angela Calk suffered a serious head injury while working as a truck driver for the defendant. Ms. Calk participated in extensive rehabilitation in an effort to return to the work force. She was permanently disabled and could not return to her former job. Through rehabilitation she was able to obtain a GED in 1999. Ms. Calk also acquired an associate’s degree in accounting and office technology through the State of Louisiana Job Training Program, which she completed in February 2001. The claimant’s treating physician, however, restricted her work because of her inability to think clearly during stressful situations. Ms. Calk was limited to twenty-five hours of work per week and was ordered to avoid stressful working environments.

In March 2001, on her own, Ms. Calk obtained part-time employment with Huey T. Littleton Claims Service as a clerical worker. She worked, on average, four to five hours per day for a total of twenty-five hours per week. Initially she was paid $7.00 per hour with an increase to $7.50 per hour after six months. The defendant paid the claimant SEBs while she worked for Littleton, as her wages were substantially lower wages than she had earned pre-injury.

While still employed by Littleton, and with the encouragement of the rehabilitation consultant provided by the defendant, Ms. Calk continued to look for | ¡¡other work at a higher rate of pay. In January of 2002, in an attempt to better her financial status, she began working for Med-Express Ambulance Service (Med-Express) for more hours and at a higher rate of pay. The Med-Express job also provided job benefits such as medical insurance that her job at Littleton did not provide. Although this job exceeded the hours her treating physician had ordered, the claimant stated she believed this job was in compliance with the doctor’s restrictions and would be considered “part time” since she would work four twelve-hour shifts but then have four consecutive days off duty.

The position as dispatcher at Med-Express, however, exceeded her capabilities, and she was fired after two weeks. The stated reason for her dismissal was her inability to perform the required tasks.

Upon being terminated by Med-Express, the claimant immediately contacted Littleton in an attempt to go back to work at her previous position. That position, however, had been filled and was no longer available.

Upon obtaining the position at Med-Express, the claimant had immediately notified the defendant, who reduced the claimant’s SEBs due to the increase in her earnings. When she was terminated she notified the defendant of that termination as well as her failed attempt to return to Littleton at her old position. She demanded that her benefits be reinstated at the maximum rate of $319.00 per week since she had no income. Instead, the defendant began paying the claimant SEBs based on her earnings while employed at Littleton. This disputed claim for compensation followed.

The claimant remained unemployed until August 2, 2002, when she went to work part-time with KWDF Ball Broadcasting Company at $5.15 per hour.

13At trial, the workers’ compensation judge found that the claimant demonstrated an earning capacity within her medical restrictions while working for Littleton. In addition, the workers’ compensation judge concluded the claimant voluntarily left her job at Littleton and the defendant was entitled to base the claimant’s SEBs on the wages earned while employed by Littleton. The claimant’s request for penalties and attorney fees was denied. It is from this judgment the claimant appeals.

DISCUSSION

There is no question, as found by the workers’ compensation judge, that the appellant has proven her entitlement to SEBs. The issue before this court is strictly at what rate SEBs should be paid.

Since the appellant met the initial burden of proving entitlement to SEBs, the burden shifted to the employer to establish job availability. Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97); 696 So.2d 551. In Banks, the Supreme Court of Louisiana stated that the employer may meet its burden by showing the following by competent evidence:

(1) the existence of a suitable job within claimant’s physical capabilities and within claimant’s or the employer’s community or reasonable geographic region;
(2) the amount of wages that an employee with claimant’s experience and training can be expected to earn in that job; and
(3) an actual position available for that particular job at the time that the claimant received notification of the job’s existence.
By “suitable job,” we mean a job that claimant is not only physically capable of performing, but one that also falls within the limits of claimant’s age, experience, and education, unless, of course, the employer or potential employer is willing to provide any additional necessary training or education.

Id. at pp. 10-11; 696 So.2d at 557.

|4The workers’ compensation judge ruled the defendant is entitled to pay SEBs based on the claimant’s “proven wage earning ability at Huey Littleton,” finding the job there was “unavailable” only because she voluntarily left it. We disagree with the workers’ compensation judge’s determination.

Having proven entitlement to SEBs, the burden shifted to the defendant to show the existence of a suitable job within the claimant’s capabilities that was actually available to the claimant as required by Banks. The defendant has never ■ been required to address the Banks requirements, relying exclusively on the argument that the claimant voluntarily left the Lit-tleton position, a job she was clearly capable of handling.

All the evidence in this case established the claimant is a highly motivated individual who has worked extremely hard to come back from a debilitating head injury which required her to be retaught how to even walk, talk and feed herself. She has not relied solely on defendant to assist her in reentering the work force. She has attained her GED. She pursued successfully an associate’s degree through the State of Louisiana Job Training Program. She found the job at Littleton through her own efforts. She took the advice of the rehabilitation officer provided by the defendant and, with the rehabilitation officer’s encouragement, continued to look for a better paying job with better benefits while she was working at Littleton. She ultimately found a job she honestly believed she could perform at Med-Express. Unfortunately, due to her lack of ability to handle stress as a result of the head injury she has suffered, she was unable to perform the required duties and was terminated. Her previous job at Littleton had been filled, and she found herself unemployed.

IrNo one questions the appellant’s motivations or intentions in leaving the position at Littleton. Although it was a job she was capable of performing, it was unavailable. Under the specific facts of this case, we find that the Littleton position was unavailable through no fault of the appellant.

We find the appellant is entitled to SEBs from January 27, 2002, until August 2, 2002, at a zero base. Thereafter, SEBs will be paid at a minimum wage base. The judgment of the workers’ compensation judge is reversed, and judgment is entered in favor of the appellant as stated above.

Penalties and Attorney Fees

Louisiana Revised Statute 23:1201(F) provides for penalties and attorney fees when an employer and/or insurer fails to timely pay compensation benefits unless the employee’s right to the compensation being claimed is reasonably controverted.

Under the facts of this case we find the claim was reasonably controverted and decline to impose penalties and attorney fees.

CONCLUSION

The judgment of the workers’ compensation judge is reversed, and judgment is entered in favor of the appellant, Angela Calk, for SEBs at the full rate from January 27, 2002, until August 2, 2002. Thereafter, SEBs will be paid at a minimum wage base. The appellant’s request for penalties and attorney fees is denied. The appellee is cast with all costs at trial and on appeal, together with any legal interest which may have accrued.

REVERSED AND RENDERED.

AMY, J., dissents and assigns written reasons.

|1AMY, J.,

dissenting.

I respectfully dissent from the majority opinion. My review of the record indicates that it is undisputed that the claimant was fully aware that her doctors had placed work restrictions upon her. She was able to successfully work within those restrictions while working for Huey Littleton. However, without consulting her physician, the appellant chose to leave this position for another which was beyond her medical restrictions. This evidence supports the workers’ compensation judge’s determination and, in my opinion, requires an affirmation. Furthermore, the workers’ compensation provisions, insofar as they relate to this matter, reflect a shared responsibility of cooperation between the involved parties. Although the parties may be of generally opposing interests, they share a common interest in a favorable outcome. By making the unilateral decision to leave the position, the claimant failed to fulfill her obligation to the other party, the employer. Under the present facts, I do not conclude that the employer is responsible for the claimant’s failing in this regard. Finding an affirmation appropriate, I dissent.


author: |, MAX N. TOBIAS, JR, Judge. I t CANNIZZARO, J.,

text:
    Josephine O’ROURKE v. NORA’S CREOLE CAFE.
    No. 2003-CA-0810.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 13, 2003.
    Josephine O’Rourke, New Orleans, LA, in Proper Person, Plaintiff/Appellant.
    Nora L. Dejoie, New Orleans, LA, in Proper Person, Defendant/Appellee.
    (Court composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR., and Judge LEON A. CANNIZZARO, JR.).
   |, MAX N. TOBIAS, JR, Judge.

The appellant’s worker’s compensation case was dismissed due to the appellant’s failure to appear at trial. For the reasons stated herein, we reverse and remand for further proceedings.

The plaintifi/appellant, Josephine O’Rourke, alleged a work-related injury that occurred on Saturday, 26 May 2001. At the time of her alleged injury, Ms. Rourke was employed as a waitress for the defendant/appellee, Nora L.- Dejoie, doing business as Nora’s Creole Café. Both Ms. O’Rourke and Ms. Dejoie represented themselves in this litigation without lawyers. Trial was set for 2 December 2002 before the worker’s compensation judge. The trial court rendered a judgment on 2 December 2002 dismissing the case with prejudice; the trial court stated that the case was being dismissed for the “partie’s failure to appear for trial”. (Emphasis added.) Notice of the judgment was sent by certified mail.

On 4 December 2002, Ms. O’Rourke filed a Motion to Vacate Judgment of Dismissal, asserting that she had appeared at all prior proceedings of the matter, including two prior continuances of the trial, and that she had been mistaken as to the trial date. (She thought trial was set for 4 December 2002, not 2 December 2002.)

l2The record on appeal contains a motion to vacate the judgment of dismissal filed by Ms. O’Rourke on 4 December 2002, and an order by the trial court denying the motion on 9 December 2002.

A subsequent judgment of the trial court (discussed below) states that Ms. O’Rourke filed a motion for appeal on 6 January 2003 and an order granting the appeal was entered on 7 January 2003. The record on appeal contains neither the 6 January 2003 motion nor the 7 January 2003 order. No pleading in the record reflects anything occurring on those dates.

The subsequent judgment also states that on 4 February 2003, a status conference was held and the trial court vacated, on its own motion, the 2 December 2002 order of dismissal “for not being in proper form and/or providing proper notice.” The record on appeal reflects no notice or evidence other than the comment in the subsequent judgment of any conference.

On 12 February 2003 the trial court signed a new “final judgment” (the “subsequent judgment” referred to above). This new judgment notes that the order of appeal of 7 January 2003 was vacated at the status conference on 4 February 2003. (No evidence indicates that the parties consented to the vacating of the order of appeal entered on 7 January 2003.) The judgment ordered Ms. O’Rourke’s claim be dismissed with prejudice, stating that the judgment was “in proper form and provided the plaintiff with proper notice as per the Louisiana Code of Civil Procedure.” The new judgment also states that the plaintiffs failure to appear for trial was the reason for the dismissal.

On 13 March 2003, Ms. O’Rourke filed an appeal in proper person and an order of appeal was granted that date. We note that Ms. O’Rourke is prosecuting this appeal as a pauper.

|3The record on appeal contains no transcript of any proceeding.

On .appeal, Ms. O’Rourke argues simply that she thought the trial was scheduled for 4 December 2002, instead of 2 December 2002. She points out to the court that she is seventy-seven years of age and has made every other court appearance and mediation conference in her case. The record reflects that the parties participated in court-ordered mediation of the matter before an answer was filed by Ms. Dejoie; that following the mediation, Ms. O’Rourke entered a motion for default; and that on the date the default was to be confirmed (1 July 2002), Ms. Dejoie filed an answer admitting, inter alia, that Ms. O’Rourke had sustained an injury in the course and scope of her employment for Ms. Dejoie, and that the injury caused Ms. O’Rourke to sustain a loss of earning capacity.

La. C.C.P. art. 1672 A reads in pertinent part as follows:

(1) A judgment dismissing an action shall be rendered upon application of any party, when the plaintiff fails to appear on the day set for trial. In such case, the court shall determine whether the judgment of dismissal shall be with or without prejudice.
(2) The court, on its own motion, may dismiss an action without prejudice when all he parties thereto fail to appear on the day set for trial; however, when a case has been dismissed pursuant to this provision and it is claimed that there is a pending settlement, either party may reinstate the suit within sixty days of receipt of notice of dismissal, and any cause of action which had not been prescribed when the case was originally filed shall be fully reinstated as though the case had never been dismissed.

A trial judge’s knowledge of the condition of the court’s docket, fairness not only to both parties but also to other litigants in the court, and the need for an orderly and prompt administration of justice provides the trial judge with superior ability to determine the terms of the dismissal. Keyes v. Johnson, 542 So.2d 209 (La.App. 3 Cir.1989); Matter v. McKinney, 310 So.2d 696, 698 (La.App. 1 |4Cir.l975). The trial court’s dismissal of a cause of action based upon plaintiffs failure to appear for trial will not be reversed absent a showing that the trial court abused its discretion. Keyes, supra.

In this case, based upon the record on appeal, we find that the trial court abused its vast discretion in dismissing Ms. O’Rourke’s case.

Considering the equities of the case and (1) the advanced age of the plaintiff; (2) the admission by the defendant that (a) the plaintiff sustained a work related injury in the course and scope of her employment for the defendant and (b) the plaintiff lost earn capacity as a result of the injury; (3) the attendance by the plaintiff at all other hearings of the court and at the mediation; . (4) the inconsistency in the judgments (one reflecting that both parties failed to appear and the other reflecting that only the plaintiff failed to appear); (5) the absence of a transcript of the 2 December 2002 setting of the trial; (6) the absence of a formal notice, minute entry or other evidence relating to a 4 February 2003 status conference; (7) the absence of the 6 January 2003 motion for appeal and the 7 January 2003 order granting the appeal (the latter of which under La. C.C.P. art.2088 divested the trial court of jurisdiction to enter the 12 February 2003 judgment); and (8) the extreme harshness of a dismissal with prejudice in view of the language of La. C.C.P. art. 1672 A, we cannot uphold the judgment of dismissal. See La. C.C.P. art. 2164.

For these reasons, we reverse the judgment of dismissal with prejudice and remand the matter for further proceedings.

REVERSED AND REMANDED.

CANNIZZARO, J., dissents with reasons.,

I t CANNIZZARO, J.,

DISSENTS WITH REASONS.

I respectfully dissent.

The issue before this Court is whether the workers’ compensation judge abused his discretion in dismissing Ms. O’Rourke’s case with prejudice when she failed to appear on the morning of trial. Although the majority enumerates several “equities” in reversing, I find none of them compelling enough to declare that the judge was manifestly erroneous or clearly wrong in his judgment.

Out of an abundance of caution and with a regard to fair play, the workers’ compensation judge vacated the judgment of dismissal and held an in person status conference with Ms. O’Rourke to consider her reasons for failing to appear at trial. The following facts are uncontested: 1) Ms. O’Rourke was injured in a work related accident; 2) she sustained a loss of earning capacity; and 3) she attended every other hearing in this matter. Additionally, the judge certainly considered Ms. O’Rourke’s advanced age and the fact that she was representing herself.

While the majority correctly points out that the record is deficient in some respects, nonetheless, the record does reflect, without equivocation, that notice of the trial date was served upon Ms. O’Rourke and that the defendant appeared at trial, but she, Ms. O’Rourke, did not. Given the opportunity to reconsider his ruling at the status conference, the workers’ compensation judge again concluded that Ms. O’Rourke had forfeited her day in court. Under these circumstances, I cannot say the workers’ compensation judge abused his discretion in dismissing UMs. O’Rourke’s suit with prejudice pursuant to La. C.C.P. art. 1672 A(l) as he was authorized to do so.

      . At best, the 12 February 2003 judgment can be read as reasons for judgment. Yet the record on appeal does not support the statements therein.


author: I JOAN BERNARD ARMSTRONG, Judge.

text:
    Joe BOOTH, et al. v. ACANDS, et al.
    No. 2003-C-0511.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 13, 2003.
    Donni E. Young, Scott M. Galante, Motley Rice LLC, John F. Dillon, John F. Dillon PC, New Orleans, LA, for Plaintiff.

      David Williams, Lawrence J. Duplass, and Andrew D. Weinstock, Duplass, Zwain, Bourgeois & Morton, Metairie, LA, for 3M Company.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MAX N. TOBIAS, JR. and Judge LEON A. CANNIZZARO, JR.).
   I JOAN BERNARD ARMSTRONG, Judge.

In this asbestos-related terminal meso-thelioma tort action, defendant 3M Company (“3M”), formerly known as Minnesota Mining & Manufacturing Co., seeks supervisory review of the trial court’s judgment denying its motion for summary judgment and motion for protective order.

Joe Booth, his spouse Alberta Booth, and Joe Booth’s daughters, Cynthia Booth, Deidre Booth Slack and Terri Booth, originally instituted this action on November 28, 2000, seeking damages, including those for loss of consortium, related to Joe Booth’s exposure to large quantities of asbestos-containing products designed, mined, manufactured, advertised, marketed and/or distributed by numerous defendants. 3M was not named a defendant in this original petition. A first supplemental and amending petition was filed at some point A second supplemental and amending petition was filed by Alberta Booth, Cynthia Booth, Diedra Booth Slack and Terri Booth asserting a wrongful death claim and substituting themselves in place of the decedent Joe Booth for his survival claim. 3M was added as a defendant in this second supplemental and amending petition.

| {¡Plaintiffs filed a notice of subpoena duces tecum and records deposition and a notice of a La. C.C.P. art. 1442 discovery deposition. 3M then filed a motion for protective order as to that discovery, as well as a motion for summary judgment.

Following a hearing on both motions, the trial court denied 3M’s motions for protective order and for summary judgment. The trial court also stayed the discovery pending this court’s disposition of 3M’s writ application, and ordered that prior to the La. C.C.P. art. 1442 depositions both parties enter into a confidentiality agreement regarding the disclosure of privileged documents. This application for supervisory writs followed. The plaintiffs have been given an opportunity to file an opposition, there has been a reply to that opposition filed by 3M, and we now render this opinion.

Plaintiffs alleged in their second supplemental and amending petition that 3M manufactured and supplied asbestos cloth to Hopeman Brothers at Avondale to which plaintiffs decedent Joe Booth was exposed.

Included in 3M’s writ application are a number of depositions and a two-page “material requisition” form from Hopeman Brothers, Inc., in New York. This material requisition form, dated “7.7.67,” is for 30,-000 linear feet of one-inch wide asbestos tape “for sheet metal lining in mach. casing only.” Handwritten on one page of the form is “Minn. Mining & Mfg. B8085.” One page of the form is stamped “Purch. Dept. Sep 27, 1967.” Also on the form next to the word “CONTRACT” is written “1126/30 AVONDALE”, and next to the phrase “DELIVER TO” is written “JOB.” 3M submits that this is plaintiffs’ sole documentary support for their claim.

A December 9, 2002 letter from 3M’s counsel to plaintiffs’ counsel notes that plaintiffs listed ninety-five fact witnesses. Counsel for 3M requested ^notification of which ones would testify that Joe Booth was exposed to asbestos-containing products allegedly manufactured by 3M. Counsel for plaintiffs replied on January 6, 2003 that he was still working on it, but that he would likely call the family, and for product identification he would call Johnnie Johnson, Luther Dempster, “Frenchy” Bordelon and Peter Territo.

Plaintiffs alleged in their petition that decedent Joe Booth worked at Avondale in 1969. Joe Booth’s deposition was taken on October 3, 2000, before 3M was named a defendant. Mr. Booth completed the fifth-grade of grammar school before going to work doing odd jobs such as lawn care. His first full-time job was at a grocery store. He could not recall any work before Avondale where he might have been exposed to asbestos. He went to work at Avondale in 1969, but left because he could not take the dust. While at Avondale Mr. Booth insulated pipes and stacks on ships under construction. His foreman at Avon-dale was “Frenchy” Bordelon. Joe Booth went to work for the school board in 1970 as a maintenance custodian, retiring after twenty-five years, mostly doing maintenance work on boilers and boiler pipes insulated with what he later learned was asbestos. Mr. Booth also testified that some twenty-five years ago he moved on Foucher Street near Tehoupitoulas Street, not far from a National Gypsum facility.

Johnnie Johnson (who 3M represents is now deceased) gave a July 1995 deposition in connection with another action filed in the 24th Judicial District for the Parish of Jefferson. He also testified at the November 1995 trial of that action. Mr. Johnson began working at Avondale in June 1966 as a tack welder. Mr. Johnson only worked as a welder for a short period; he sustained a back injury. By November 1968 he was working in the tool room. He recalled doing tool repairs for Frenchy Bordelon, who supervised insulators. He recalled asbestos products at |4Avondale, such as a burlap-type cloth, mud (cement) and pipe covering, but did not recall any manufacturer names or initials. Mr. Johnson knew that Hopeman Brothers had been at Avondale for a number of years, and that they finished compartments of the ships. He had seen them working, cutting and fitting hard wallboard, ceiling tile, etc., on occasions when walking through compartments.

Burnett L. “Frenchy” Bordelon, Sr. (who 3M represents is now deceased) testified in a 321-page September 28, 1983 deposition given in connection with a 1980 federal court action. Neither 3M nor Hopeman Brothers had counsel representing them at this deposition. Mr. Bordelon was employed at Avondale at the time of his 1983 deposition, and had been superintendent of insulation and stud welding for forty years, thus covering any time period plaintiffs’ decedent Joe Booth worked there. Mr. Bordelon said in his 1983 deposition that Hopeman Brothers did all of the finishing of the inside quarters, but that Avondale also insulated some pipes going into the quarters. Mr. Bordelon named a number of distributors from whom Avondale had purchased asbestos products over the years. He replied in the negative when asked whether they ever purchased from Hopeman Brothers. Avondale used asbestos molded pipe coverings, block insulation, cement (mud), cloth and tape. However, he said they fabricated their own tape from asbestos (“amo-site”) felt sewn inside of asbestos cloth, because the price for the tape was so high. Mr. Bordelon mentioned a number of manufacturers, but not 3M or its predecessor, Minnesota Mining.

“Frenchy” Bordelon also gave a deposition in September 1984, in connection with a 1982 federal court action. No counsel represented 3M or its predecessor Minnesota Mining, or Hopeman Brothers. The questioning in this deposition was primarily directed to the period from 1966-1969. Mr. Bordelon |Bwho was knowledgeable about the types of asbestos products used at Avondale since 1940, as well as the names of manufacturers and distributors of those products, said nothing in this September 1984 deposition about asbestos tape or 3M7Minnesota Mining. He confirmed that Hopeman Brothers was an Avondale contractor in 1968 who, for example, installed sheetrock. When asked whether Hopeman Brothers themselves purchased the insulation they used, Mr. Bordelon replied in the affirmative, stating that as far as he knew Avondale did not supply anything for subcontractors. Mr. Bordelon was asked who would know what insulation products were purchased at Avondale for the period 1966-1968. He said a Mr. Chabert was the only person he could think of.

Peter R. Territo attested in affidavit that he was employed by Avondale from 1952 until he retired in 1997. He began working in the Avondale Safety Department in the 1960’s. He was not aware of the name of any manufacturer of one-inch wide asbestos tape that may have been used at Avondale, nor of any asbestos-containing product that may .have been manufactured by 3M/Minnesota Mining. Mr. Territo further attested that he had never seen the Hopeman Brothers July 7, 1967 material requisition form describing the one-inch asbestos tape, and had no knowledge of any information contained in that form.

The final bit of evidence attached to 3M’s writ application are excerpts from the March 23-24, 1994 deposition of Luther Dempster, taken in connection with Mr. Dempster’s 1993 action against Avon-dale and others in Orleans Parish Civil District Court. Hopeman Brothers was at the March 23-24th deposition. Neither 3M nor its predecessor Minnesota Mining were represented at the deposition. In the deposition excerpts, Mr. Dempster does not mention 3M/Minnesota Mining, or asbestos tape. Mr. Dempster does mention asbestos cloth, and identifies photos of 1 ^asbestos products manufactured by companies other than 3M/Minnesota Mining. 3M represents in its writ application that Mr. Dempster was employed by Avondale from 1952 to 1993. 3M represents in its writ application that Mr. Dempster gave other testimony in depositions on August 27, 1993, July 2, 1997, December 21, 1998 and October 2, 2000, and testified at trial on April 18-19, 1996. 3M represents that copies of those deposition transcripts were not attached to its summary judgment motion due to the volume but were made available upon request, and that plaintiffs did not contest this issue in the trial court.

In its supplemental responses to plaintiffs’ interrogatories and requests for production of documents relating to “asbestos-containing products,” 3M answered that it never manufactured “asbestos cloth” as it “understands that term;” that following a reasonable inquiry and search to date, it had not located any information or documents that evidence the sale of “asbestos cloth” to Hopeman Brothers or Avondale Shipyards; and because it did not manufacture “asbestos cloth,” it had not located any records that identify distributors of such product in Louisiana.

3M stated in its second supplemental response to plaintiffs’ interrogatories that it conducted a search and provided plaintiffs’ counsel with documents about Irving-ton Arc Proofing products, Nos. 7000 and 7500. 3M states in its writ application that Irvington was a company it acquired that manufactured electrical arc tape used for high voltage arcing (not for sheet metal lining), and that plaintiffs had specifically requested information regarding Irvington electrical tape. 3M further stated in its responses to interrogatories that it searched for and provided plaintiffs’ counsel with all non-privileged documents about these two products, and was willing to provide plaintiffs’ counsel with confidential documents about the |7produets on the condition that plaintiffs’ counsel executes an appropriate protective order. Attached to the writ application is a letter from counsel for 3M to counsel for plaintiffs, supposedly hand-delivered, in which 3M represents that there are additional items it is willing to produce pursuant to the execution of a protective order. 3M represents in its writ application that plaintiffs’ counsel has not executed such protective order.

Appellate courts review the grant or denial of a motion for summary judgment de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, p. 7 (La.2/29/00), 755 So.2d 226, 230. A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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). A fact is material when its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id.

La. C.C.P. art. 966(C)(2) provides that where the party moving for summary judgment will not bear the burden of proof at trial, as in the instant case, his burden does not require him to negate all essential elements of the adverse party’s claim, but rather to point out to the court an absence of factual support for one or more elements essential to the adverse party’s claim. Thereafter, if the adverse party Isfails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact, and the movant is entitled to summary judgment as a matter of law. Id.

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by La. C.C.P. art. 969. La. C.C.P. art. 966(A)(2). Summary judgments are favored, and the summary judgment procedure shall be construed to accomplish those ends. Id. Nevertheless, despite 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, 2000-2507, p. 2 (La.12/08/00), 775 So.2d 1049, 1050. A court cannot make credibility determinations on a motion for summary judgment, arid must assume that all of the affiants are credible. See Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, p. 16-17, 755 So.2d at 236.

Circumstantial evidence may be used to prove a plaintiffs case and to defeat a motion for summary judgment. It must exclude with a fair amount of certainty every other reasonable hypothesis and not all other possible causes. Wood v. Becnel, 2002-1730, p. 6 (La.App. 4 Cir. 2/26/03), 840 So.2d 1225, 1228.

Based on the pleadings and depositions, affidavits and evidence contained in the writ application, the only link between 3M and Avondale is the two-page Hopeman Brothers material requisition form. Based on this form, Hopeman Brothers ordered one-inch wide asbestos tape in July 1967 for a contract it had with Avondale. The purchase department date stamp of September 27,1967 suggests that the tape was in fact purchased or ordered. The handwritten note on |athe form suggests that the tape to be purchased was manufactured, sold and/or distributed by SM/Minnesota Mining. Although 3M stated in its responses to interrogatories that it never manufactured “asbestos cloth” “as 3M understands that term,” in light of the material requisition form, there is a genuine issue of material fact as to whether 3M/Minnesota Mining manufactured, sold and/or distributed asbestos tape to Hope-man Brothers. We reach this conclusion construing all factual inferences reasonably drawn from the evidence in plaintiffs’, favor and resolving all doubt in their favor.

A more difficult issue is whether plaintiffs have shown that they can meet their burden of proving that decedent Joe Booth was more probably than not exposed to this 3M asbestos tape requisitioned, ordered and/or purchased by Hopeman Brothers for a contract it had with Avon-dale. Both Johnnie Johnson and “Frenchy” Bordelon testified that Hope-man Brothers was a subcontractor which did finishing work on the quarters/compartments of ships built at Avondale. Mr. Bordelon said Hopeman Brothers was working there in 1968, and also in 1983, when it was doing “all” of the finishing in the ship quarters. The Hopeman Brothers’ material requisition form, referencing an Avondale contract, is dated July 7, 1967, with a purchase department date stamp of September 1967. It could be inferred from all these facts that Hopeman Brothers would have been working at Avondale during the short period decedent Joe Booth worked there during 1969. Joe Booth insulated pipes while working at Avondale, and had to quit because of the dusty environment. “Frenchy” Bordelon, superintendent of insulation work while decedent Joe Booth was employed there as a pipe insulator, stated that Avondale workers sometimes insulated pipes in the ship quarters. This is where Hopeman Brothers performed its work.

11 Nevertheless, construing all factual inferences reasonably drawn from the evidence in plaintiffs’ favor, and resolving all doubt in their favor, the evidence does not show that plaintiffs can meet their burden of proving that it was more probable than not that decedent Joe Booth was exposed to any 3M/Minnesota Mining asbestos tape or cloth requisitioned, ordered and/or purchased by Hopeman Brothers during the brief period in 1969 when he worked at Avondale as a pipe insulator. Accordingly, there is no genuine issue of material fact, and 3M is entitled to judgment as a matter of law.

For the foregoing reasons, we grant in part the defendant 3M’s writ application, reverse the judgment of the trial court denying 3M’s motion for summary judgment and render judgment dismissing this action as against 3M. The writ application is moot insofar as it seeks reversal of the judgment of the trial court denying 3M’s motion for protective order.

WRIT GRANTED IN PART, REVERSED AND DISMISSED.


author: 11 EDWIN A. LOMBARD, Judge.

text:
    Frederick JOHNSON v. T & LNAS/DOMINO SUGAR.
    No. 2003-CA-0058.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 20, 2003.
    William S. Vincent, Jr., William W. Meeks, Law Office of William S. Vincent, Jr., New Orleans, LA, For Plaintiff/Appellant.
    John J. Rabalais, Janice B. Unland, Robert T. Lorio, Rabalais, Unland & Lo-rio, Covington, LA, for Defendant/Appel-lee.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD).
   11 EDWIN A. LOMBARD, Judge.

This is an appeal of a judgment from the office of workers’ compensation. The workers’ compensation court granted plaintiff/appellant’s request for physical therapy, but denied the request for mileage reimbursement and for attorney fees in connection with the mileage reimbursement. Appellant sets forth two assignments of error on this appeal. First, that the workers’ compensation judge erred by failing to grant appellant’s request for mileage reimbursement in accordance with a stipulation made in open court by the parties; and second, that the workers’ compensation judge erred by failing to award attorney’s fees in connection with the mileage reimbursement.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Frederick Johnson (appellant) was injured on July 19, 1993, while employed by Tate & Lyle North American Sugars, Inc. (appellee). Appellant received workers’ compensation payments and medical benefits, and these two issues are not in dispute. On April 18, 2001, appellant requested additional physical therapy and reimbursement of accrued mileage expenses for travel in connection with his medical services. Appellee did not authorize appellant’s requests, and suit was | «filed. Appellant also sought attorney fees and penalties in connection with the denial of physical therapy and mileage reimbursement.

The case proceeded to trial on May 9, 2002. On the record, counsel for the parties discussed a stipulation on the issue of mileage reimbursement, and agreed that the amount of $10,194.15 was due appellant. The case then proceeded on the issue of whether appellant was entitled to physical therapy, attorney’s fees and penalties. Appellant’s testimony was taken and medical records and mileage itemiza-tions were introduced as exhibits. No testimony or evidence was taken regarding the attorney’s fees in connection with the denial of physical therapy or mileage reimbursement. The matter was taken under advisement, and judgment was rendered on June 26, 2002.

The workers’ compensation court granted appellant’s request for physical therapy, denied appellant’s request for mileage reimbursement and denied appellant’s request for attorney’s fees and penalties in connection with the mileage claim. Reasons for judgment were not provided. Appellant’s motion for new trial was denied on July 9, 2002.

ARGUMENT

Appellant argues that the judgment, on the issue of mileage reimbursement, was contrary to the stipulation entered into between the parties. Specifically, appellant submits that the record is clear that the parties stipulated that appellant was due $10,914.15 for mileage reimbursement. As further evidence of the stipulation, appellant directs the court’s attention to appellee’s post-trial brief. Appellant contends that appellee’s post-trial brief acknowledges the stipulation when it states, “All of the issues in dispute were resolved before trial, or at trial by stipulation, except for the issue of physical therapy.”

| «Appellant asserts that the judgment denying appellant’s mileage request was in error given the stipulation that was read into the record. Appellant cites Francois v. Alexander, 99-1760 (La.App. 3 Cir. 4/5/00), 771 So.2d 656, for the position that the law gives effect to oral stipulations made in open court and entered into the record. Appellant also assigns as error the workers’ compensation judge’s failure to award attorney’s fees that were incurred by appellant in pursuing the mileage reimbursement claim.

Appellee argues, in opposition to this appeal, that there was no stipulation on mileage reimbursement. Appellee submits that there was confusion surrounding the discussion on the mileage reimbursement, and that a stipulation was never perfected. Appellee further relies on the transcript to show that there were several off-the-record discussions between counsel and the judge about the stipulation, and that the judge would have been aware that a stipulation was never reached. It is therefore argued that the judge ruled on the mileage reimbursement claim after weighing all of the evidence presented.

As to the denial of attorney’s fees, appel-lee submits that the workers’ compensation judge has great discretion in this area, and that such discretion will not be disturbed on appeal unless clearly wrong. Rareshide v. Mobile Oil Corp., 97-1376 (La.App. 4 Cir. 4/22/98), 719 So.2d 494, 506. Appellee further argues that the denial of the mileage request is conclusive as to the request for attorney fees due in connection with the request for mileage reimbursement.

It is further asserted by appellee that appellant had an opportunity to request written reasons for judgment but failed to do so. Accordingly, appellee argues that it is improper for this court to determine the sufficiency of the lower court’s reasons for judgment. Liprie v. Liprie, 553 So.2d 1094, 1096 (La.App. 3 Cir.1989).4 Appellee also cites Bosley v. Hebert, 385 So.2d 430 (La.App. 1 Cir.1980), for the position that appellant failed to take advantage of the opportunity afforded by La. C.C.P. art. 1917 to request written reasons, and should not now be allowed to complain.

STANDARD OF REVIEW

Factual findings in workers’ compensation cases are subject to the manifest error or clearly-wrong standard of appellate review. Seal v. Gaylord Container Corp., 97-0688 (La.12/02/97), 704 So.2d 1161; Banks v. Industrial Roofing & Sheet Metal Works, 96-2840 (La.7/1/97), 696 So.2d 551, 556. A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Sto-bart v. State, 617 So.2d 880, 882 (La.1993). Rosell v. ESCO, 549 So.2d 840 (La.1989).

Our supreme court, in Stobart, reiterated its two-part test for the reversal of a factfinder’s determinations:

1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).

Stobart, 617 So.2d at 882 (citing Mart v. Hill, 505 So.2d 1120, 1127 (La.1987)).

This two-pronged test dictates that a reviewing court must do more than simply review the record for some evidence, which supports or controverts the trial court’s finding. The reviewing court must review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Id.

\ .DISCUSSION

Our review of the record indicates that the workers’ compensation judge was clearly wrong in denying appellant’s mileage reimbursement claim as stipulated to between the parties.

A stipulation has the effect of binding all the parties and the court. Dolsen v. City of New Orleans, 559 So.2d 50 (La.App. 4th Cir.1990) (citing, R.J. D’Hemecourt Petroleum v. McNamara, 444 So.2d 600, 601 (La.1983)). A trial court is bound to render judgment in accordance with the stipulations of the parties where the stipulations were not in derogation of the law. General Investment, Inc. v. Thomas, 400 So.2d 1081 (La.App. 4th Cir. 1981). In Wickliffe v. Cooper & Sperrier, 161 La. 417, 108 So. 791 (1926), our supreme court determined that stipulations between the parties in a specific case were binding upon the trial court in the disposition of that case, where the stipulations were not in derogation of the law.

The record in this case clearly reveals that a stipulation was entered into between the parties on the issue of appellant’s claim for mileage reimbursement. The stipulation is evident from an excerpt from the transcript, which reads:

THE COURT:
All right. For the record, what are the issues for today?
MR. VINCENT: (Counsel for appellant)
Your Honor, we have a stipulation with respect to the first issue.
THE COURT:
We’ll come back to that then. What are the issues remaining?
MR. VINCENT:
The issue remaining today is whether or not Mr. Frederick Johnson is entitled to physical therapy treatments as prescribed by his two treating physicians; and, in addition to that, whether or not the employer irresponsible for penalties for failing to approve the physical therapy treatments; and whether or not the employer is responsible for attorney’s fees for not paying the mileage statements that have been submitted to it previously and through today; and for not authorizing any physical therapy treatments as recommended by the treating physicians.
THE COURT:
All right. Do you have some stipulations? What are they?
MR. VINCENT:
Your Honor, I think we have a stipulation. The employer has agreed to pay the mileage statements of the claimant, which total 10,000—
MR. BABST (Counsel for appellee)
I believe — 194.15, Your Honor.
MR. VINCENT:
Right. $10,194.15.
MR. BABST:
Your Honor, in connection with that, I would just like to point out that the mileage had been submitted to the employer.
THE COURT:
Is this a stipulation?
[several off the record discussions] THE COURT:
All right. Back on the record.
MR. VINCENT:
Okay. Your Honor, we will stipulate that the mileage information that has been previously submitted to the employer was for a period, I think, through August of 2000; and was for an amount somewhere between $5,000 and the $10,194.15 figure that we have today. The figure — the $10,194.15 figure represents all the mileage claimed by the claimant from the date of his accident through March 1st, 2002.
THE COURT:
All right. And you are agreeable, Mr. Babst?
MR. BABST:
Yes ma'am. The total sum is due.

Additionally, we find that the stipulation is also evidenced by appellee’s post-trial brief. In that brief, counsel for appellee acknowledged that all issues had 17been resolved either before trial or by stipulation, except for the issues of physical therapy and attorney’s fees recoverable on the mileage reimbursement claim.

It is further obvious from the trial transcript that the mileage issue was not contested. Appellant was questioned on exhibit number 6, the mileage record, but only as to who prepared the document and how it was prepared. Appellant’s calculations and individual mileage entries were not questioned, nor was appellant questioned by his attorney on the issue.

Appellee refers to confusion surrounding the stipulation. The only confusion noted by this court that is evident from the transcript concerned the introduction of the updated mileage record, and specifically, what period of time it represented in comparison to the records previously submitted.

CONCLUSION

After a thorough review of the record, we find that there was definitely a stipulation entered into between the parties whereby appellant was due $10,194.15 in reimbursement for mileage expenses. We further find that the workers’ compensation court’s failure to recognize the stipulation was manifest error. Accordingly, that portion of the judgment, denying appellant mileage reimbursement, is reversed; and the case is remanded to determine whether attorney fees, in connection with the mileage request, should be awarded, since there was no evidence presented at trial on the amount of attorney’s fees sought by appellant.

REVERSED AND REMANDED.