source: Caselaw Access Project

author: HUGHES, J.

license: Public Domain

text:
    Edward BUGGAGE v. VOLKS CONSTRUCTORS.
    No. 2005 CA 2002.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 2006.
    Rehearing Denied Oct. 25, 2006.
    William R. Mustian, III, Metairie, Counsel for Claimant/Appellant Edward Bug-gage.

      Stacy A. LeCompte, Houma, Counsel for Defendant/Appellee Volks Constructors.
    Before: PETTIGREW, DOWNING, and HUGHES, JJ.
   HUGHES, J.

| gThis appeal from the Office of Workers’ Compensation presents the issue of whether the workers’ compensation claimant forfeited his rights to workers’ compensation under LSA-R.S. 23:1208.1.

FACTS AND PROCEDURAL HISTORY

On April 15, 2002, Edward Buggage, while in the employ of Volks Constructors (Volks), was thrown from the back of a truck in which he was riding when the driver accelerated the vehicle suddenly. Mr. Buggage contends he suffered head, neck, and back injuries as a result. It was subsequently discovered that Mr. Buggage failed to disclose prior back and neck injuries on his employer’s new hire medical health questionnaire, prompting Volks to deny workers’ compensation benefits.

On January 16, 2004, Mr. Buggage filed a “Disputed Claim for Compensation” with the Office of Workers’ Compensation (OWC). Following a hearing on November 12, 2004, the OWC judge ruled that Mr. Buggage had forfeited his rights to workers’ compensation benefits because he had violated LSA-R.S. 23:1208.1. Mr. Bug-gage appeals this judgment and asserts as error the trial court finding that the defendant met its burden of proof under LSA-R.S. 23:1208.1.

LAW AND ANALYSIS

The workers’ compensation statutes provide two separate anti-fraud forfeiture provisions that employers may use to affirmatively defend against paying a claim. When a falsity has been made on an employer’s medical questionnaire before the accident or injury, LSA-R.S. 23:1208.1 applies. Leonard v. James Industrial Constructors, 2003-0040, p. 4 (La.App. 1 Cir. 5/14/04), 879 So.2d 724, 728, writ denied, 2004-1447 (La.9/24/04), 882 So.2d 1139. When a claimant makes a false statement orjjmisrepresentation during a pending claim for the specific purpose of obtaining workers’ compensation benefits to defraud the system, LSA-R.S. 23:1208 applies. Wise v. J.E. Merit Constructors, Inc., 97-0684, p. 6 (La.1/21/98), 707 So.2d 1214, 1217. It is argued that LSA-R.S. 23:1208.1 applies to the instant case.

In order to encourage the employment of physically handicapped employees who have a permanent partial disability by protecting employers from excess liability for workers’ compensation for disability that may result when a subsequent injury to such an employee “merges” with his preexisting permanent physical disability to cause a greater disability than would have resulted from the subsequent injury alone, the legislature created the Second Injury Fund. An employer who knowingly employs or knowingly retains in his employment an employee who suffers from a permanent partial disability as defined by the applicable statute is entitled to be reimbursed from the fund if that employee incurs a subsequent injury arising out of and in the course of his employment resulting in liability for disability due to the “merger” of the subsequent injury with the preexisting permanent partial disability. Nabors Drilling USA v. Davis, 2003-0136, pp. 4-6 (La.10/21/03), 857 So.2d 407, 413. See also LSA-R.S. 23:1371(A) and LSA-R.S. 23:1378(A)(1).

In order to assist the employer in meeting its statutory burden of establishing that it “knowingly” hired a worker with a preexisting permanent partial disability so as to qualify for reimbursement from the Second Injury [ ¿Fund, LSA-R.S. 23:1208.1 permits the employer to obtain medical information from an employee or job applicant concerning preexisting conditions. The same statute that permits this inquiry also states that the employee’s failure to answer the employer’s inquiry truthfully shall result in the forfeiture of workers’ compensation benefits, provided certain enumerated circumstances are met. Nabors Drilling USA v. Davis, 2003-0136 at p. 5, 857 So.2d at 413-14.

Forfeiture is a harsh remedy; therefore, statutory forfeiture provisions such as LSA-R.S. 23:1208.1 must be strictly construed. By its express terms, LSA-R.S. 23:1208.1 provides for forfeiture under three circumstances. There must be (1) an untruthful statement, (2) prejudice to the employer, and (3) compliance with the notice requirements of the statute. The employer has the burden of proving each of the elements required by the statute. The lack of any one of the elements is fatal to the employer’s avoidance of liability under the statute. Nabors Drilling USA v. Davis, 2003-0136 at pp. 5-6, 857 So.2d at 414.

Untruthful answers alone do not result in the forfeiture of benefits under LSA-R.S. 23:1208.1. The employer must also prove that it provided the employee with notice comporting with the dictates of the statute. In addition to the notice requirement, the legislature has decided to specifically impose a requirement that the untruthful statement concerning a pri- or injury | Rwill result in forfeiture of benefits only when the false statement causes prejudice to the employer. The provisions of LSA-R.S. 23:1208.1 strike a careful balance that reflect the legislature’s recognition of the harshness of the forfeiture penalty and attempts to ameliorate the harshness of that penalty for the individual who is simply in the position of trying to obtain or maintain gainful employment, while at the same time preserving the goal of the Second Injury Fund, which is to enhance employment opportunities for those who have been previously disabled. Thus, it is not every untruthful statement on a medical history questionnaire that will result in the forfeiture of workers’ compensation benefits for a sub-sequent work-related injury. It is only those statements that rise to the level of meeting the statutory proviso of LSA-R.S. 23:1208.1 that will subject the employee to forfeiture. The “prejudice” that must be incurred by the employer for forfeiture to apply is specifically defined by the statute. The untruthful statement must directly relate to the medical condition for which a claim for benefits is made, or it must affect the employer’s ability to receive reimbursement from the Second Injury Fund. Nabors Drilling USA v. Davis, 2003-0136 at pp. 6-7, 857 So.2d at 414-15.

In the instant case, a Yolks’ employment questionnaire, signed by Mr. Buggage and dated November 6, 2001, was filed into evidence. At the top of the questionnaire was the following:

InNOTICE TO ALL EMPLOYEES

As you complete the questionnaire (on back), you should be aware that:

FAILURE TO ANSWER TRUTHFULLY MAY RESULT IN FORFEITURE OF YOUR [WORKERS’] COMPENSATION BENEFITS UNDER LA R.S. 23:1208.1.

The following questions were included in the questionnaire:

Have you ever had a disease or disability arising from your occupation?
Have you ever received workers’ compensation benefits for an injury that occurred?
Have you ever been rejected for employment, insurance, or military service because of health?
* * *
Have you ever had back trouble or injury to your back, head or neck?
Do you have any restrictions or limitations upon your physical activities?
Do you have any other long-term health problems or adverse physical conditions?

Mr. Buggage checked “NO” to each of these questions.

Despite the assertions of Mr. Buggage upon beginning employment with Volks that he had no prior “trouble” or injury to his back, head, or neck, the OWC judge found to the contrary. Specifically, the OWC judge found that the evidence presented established that Mr. Buggage had, prior to seeking employment with Volks, presented himself for medical treatment on several occasions for back injury, as well as for neck and shoulder injury, for a knee injury, and. had been treated for long-term hypertension. The OWC judge concluded:

The Court realizes that people are human and may forget things; however, had he left one or two questions out, the court “may” have given employee the benefit of the doubt concluding that he forgot or overlooked those particular items, but the employee categorically denying everything is suspicious.
Because of the numerous false statements made by employee on his questionnaire, his assertions as to his ability to work at a heavy duty level, and his assertions that he had no other back injuries, his claims are called into question. He clearly was taken off of work for his neck, knee and back and given restrictions. Those restrictions prevented him from working heavy-duty jobs during various times.
|7...[I]t is clear from the medical records in evidence that employee had a [preexisting] degenerative disc disease prior to starting work at Volks and this put him at risk for a subsequent injury. These [preexisting] problems directly relate to employee’s current claims of a back injury. Additionally, the employer had the right to know this information and expected truthful answers on its Medical History Questionnaire.
As to employee’s neck and shoulder injury, the medical records show [preexisting] neck and shoulder problems prior to starting work at Volks which put employee at risk for a subsequent injury. These [preexisting] problems directly relate to employee’s current claims of head, neck and shoulder injury. Again, the employer had the right to know this information and expected truthful answers on its Medical History Questionnaire.
All of this being said, this Court finds in favor of defendant and against employee and finds that employee violated the provisions in relation to [LSA-R.S.] 23:1208.1 and consequently forfeits any entitlement to workers’ compensation benefits.

Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. The two-part test for the appellate review of a factual finding is: (1) whether there is a reasonable factual basis in the record for the finding, and (2) whether the record further establishes that the finding is not manifestly erroneous. Dulin v. Levis Mitsubishi, Inc., 2001-2457, p. 4 (La.App. 1 Cir. 12/20/02), 836 So.2d 340, 343-44, writ denied, 2003-0218 (La.3/28/03), 840 So.2d 576.

After a thorough review of the record presented to this court on appeal, we find no error in the facts found and conclusions reached by the OWC. Of particular interest is the testimony of Dr. A. Delmar Walker, Jr., who testified that the L3, L4 changes revealed by Mr. Buggage’s diagnostic studies were consistent with preexisting degenerative changes. Dr. Walker further stated that although Mr. Bug-gage’s bulging disc at L5 could be consistent with a traumatic disc injury, since it was a “focal defect,” it was necessary to evaluate the claimant’s medical history to make that determination. Because Mr. Buggage did not exhibit any objective signs of nerve root irritation and did not report low back pain to medical providers on |sthe date of the accident, it was Dr. Walker’s opinion that the disc herniation was not traumatieally induced on day of the accident in question. Dr. Walker concluded that Mr. Buggage had suffered an aggravation of preexisting neck and back conditions. Further, Dr. Walker’s testimony indicated that a preexisting abnormal back condition can predispose a worker to subsequent injury.

Based on this testimony along with the medical records of the claimant introduced into evidence, we find the OWC judge had a reasonable basis for finding that Mr. Buggage’s undisclosed prior back and neck conditions were directly related to the injuries he suffered during his employment with Volks. Because the pre-employment injuries/conditions were not disclosed to Volks on the medical history questionnaire, Volks could not have qualified the claimant’s subsequent injury for coverage by the Second Injury Fund; thus Volks was prejudiced by the claimant’s false statements. Accordingly we find no error in the ruling of the OWC that the claimant’s untruthful answers directly related to the medical conditions that are the subject of this claim and that forfeiture under LSA-R.S. 23:1208.1 was warranted. See Dulin v. Levis Mitsubishi, Inc., 2001-2457 at p. 7, 836 So.2d at 346.

CONCLUSION

For the reasons assigned herein, the judgment of the Office of Workers’ Compensation is affirmed; all costs of this appeal are to be borne by claimant, Edward Buggage.

AFFIRMED.

      . According to LSA-R.S. 23:1371(C), the "merger” of an injury with a preexisting permanent partial disability for purposes of Second Injury Fund reimbursement is limited to the following: (1) the subsequent injury would not have occurred but for the preexisting permanent partial disability; or (2) the disability resulting from the subsequent injury in conjunction, with the preexisting permanent partial disability is materially and substantially greater than that which would have resulted had the preexisting permanent partial disability not been present, and the employer has been required to pay and has paid compensation for that greater disability. Nabors Drilling USA v. Davis, 2003-0136 at p. 12, 857 So.2d at 418.

      . These circumstances are set forth in LSA-R.S. 23:1208.1, which provides:
      Nothing in this Title shall prohibit an employer from inquiring about previous injuries, disabilities, or other medical conditions and the employee shall answer truthfully; failure to answer truthfully shall result in the employee’s forfeiture of benefits under this Chapter, provided said failure to answer directly relates to the medical condition for which a claim for benefits is made or affects the employer’s ability to receive reimbursement from the Second Injury Fund. This Section shall not be enforceable unless the written form on which the inquiries about previous medical conditions are made contains a notice advising the employee that his failure to answer truthfully may result in his forfeiture of worker’s compensation benefits under R.S. 23:1208.1. Such-notice shall be prominently displayed in bold-faced block lettering of no less than ten point type.

      . An employer’s right to reimbursement is not automatic. The employer is not entitled to reimbursement from the Second Injury Fund merely because an employee with a preexisting disability is subsequently injured. The employer has the burden of proving each element entitling him to reimbursement. Thus, to be reimbursed from the Second Injury Fund, an employer must prove three elements. First, the employer must prove that the employee had a permanent partial disability satisfying the requirements of LSA-R.S. 23:1378(F), i.e. that the employee’s preexisting condition is of such seriousness as to constitute a hindrance or obstacle to obtaining employment or to obtaining re-employment if the employee should become unemployed. Second, the employer must prove that he had actual knowledge of the employee’s permanent partial disability before the occurrence of the injury forming the basis of the compensation claim, as required by LSA-R.S. 23:1378(A)(4). And thirdly, the employer must prove that the permanent partial disability merged with the injury to produce a greater disability. Nabors Drilling USA v. Davis, 2003-0136 at pp. 8-9, 857 So.2d at 416.


author: DAVID S. GORBATY, Judge Ad Hoc.

text:
    Michelle DAIGLE v. HIBERNIA NATIONAL BANK & Bryan Peters.
    No. 2005 CA 2520.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 27, 2006.

      Kent B. Payne, Stacy Butler, Baton Rouge, for Plaintiff/Appellant, Michelle Daigle.
    Henri Martinez, Baton Rouge, for Defendant/Appellee, Hibernia National Bank.
    (Court Composed of Judge CHARLES R. JONES, Judge DAVID S. GORBATY, and Judge EDWIN A. LOMBARD, serving as Judges ad hoc by special appointment of the Louisiana Supreme Court).
   DAVID S. GORBATY, Judge Ad Hoc.

hln this appeal, plaintiff Michelle Daigle contends the trial court erred in granting the exception of no cause of action filed by Hibernia National Bank (“Hibernia”). For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY

Daigle filed suit against Hibernia .and Bryan Peters. The lawsuit sought to annul an Assignment of Deposit Account (“Assignment”) between Michelle Daigle, as borrower, and Hibernia, lender. In the Assignment, Daigle purported to assign a deposit account in the amount of $50,000. The petition alleges that the Assignment was procured by fraud or, alternatively, intentional or negligent misrepresentation, or excusable error induced by Peters, Hibernia’s employee and loan officer.

In particular, Daigle alleges that Peters, who is also Daigle’s brother-in-law, told Daigle that the Assignment would secure a loan (the “Loan”) that would be used to purchase a business for Renee Peters, Dai-gle’s sister. Daigle later determined that the subject loan was not used to purchase a business for Ms. Peters. Daigle alleges that she would not have executed the Assignment had she known that the Loan proceeds would be used for purposes other than the purchase of a business for her sister. Plaintiff further asserts that she thought the assignment was for $25,000, not $50,000, as she later discovered. Dai-gle claims that defendant Peters was acting in the course and scope of his employment and/or agency with Hibernia when he represented that the Loan proceeds would be used to purchase a business for Renee.

| gHibernia filed exceptions of no right or cause of action, vagueness, ambiguity, and prescription. The trial court granted the exception of vagueness and ordered Daigle to amend her petition within fifteen (15) days. The trial judge specifically expressed concerns that the petition did not specify that defendant Peters acted other than on his own, personal behalf when he had Daigle execute the Assignment. After plaintiff amended her petition, the trial court granted Hibernia’s exception of no cause of action, and dismissed Hibernia from the lawsuit. Daigle subsequently filed this appeal.

DISCUSSION

In her sole assignment of error, Daigle avers that the trial court erred in sustaining Hibernia’s exception of no cause of action. Daigle asserts that Peters was acting in the course and scope of his employment, and thus Hibernia should be responsible for his actions.

The issues presented by this appeal are questions of law. As such, we review them de novo. Guzzardo-Knight v. Central Progressive Bank, 1999-1449 (La.App.1 Cir. 6/23/00), 762 So.2d 1243.

Daigle admits to executing the Assignment. She also admits that she did not read the Assignment, but instead relied upon the representations of her brother-in-law, Peters, as to the content of the Assignment.

In Tweeael v. Brasseaux, 433 So.2d 133 (La.1983), the Louisiana Supreme Court states, “The law of Louisiana is that one who signs an instrument without reading it has no complaint... the law does not compel people to read or to inform themselves of the contents of instruments which they may choose to sign, but that... it holds them to the consequences, in the 1¡¡same manner and to the same extent as though they had exercised those rights...”

Daigle acknowledges in her petition that she did not know the loan was for $50,000 instead of $25,000 because she did not read the loan documents. Under Tweedel, Dai-gle cannot now complain that the amount was greater than she believed.

Daigle’s main claim is for the misapplication of the proceeds: the money was not used for the purpose for which Daigle intended. There has been no evidence or testimony presented to support a theory that Hibernia could, in any way, be responsible for this misapplication. Hibernia had no control over the money after it was disbursed. Daigle’s brother-in-law and possibly her sister are responsible for what happened to the money after it was distributed. Peters’s actions after the disbursement of the money clearly do not fall within the course and scope of his employment. The misapplication of the proceeds did not fall within the course and scope of his employment. As such, Hibernia cannot be held accountable for it.

CONCLUSION

Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.


author: DOWNING, J. PETTIGREW, J.,

text:
    Tamara LIRETTE and Arnold Lirette v. The CITY OF BATON ROUGE and the Parish of East Baton Rouge Employees Retirement System.
    No. 2005 CA 1929.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 2006.

      William H. Cooper, Jr., Baton Rouge, for Plaintiffs-Appellees Tamara Lirette and Arnold Lirette.
    Randy P. Zinna, Baton Rouge, for Defendant-Appellant Employees’ Retirement System of the City of Baton Rouge and Parish of East Baton Rouge.

      Before: PETTIGREW, DOWNING, and HUGHES, JJ.
   DOWNING, J.

Un this case, defendant appeals the district court’s judgment modifying the date of plaintiffs disability to make her ordinary disability retirement benefits retroactive to December 12, 1997. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

At all times pertinent hereto, Tamara Lirette was employed as an Emergency Medical Services technician for the City of Baton Rouge and Parish of East Baton Rouge (“City-Parish”). On March 25, 1997, Mrs. Lirette was dispatched to a benzene spill in Baton Rouge. Mrs. Lir-ette claims that as a result of exposure to benzene vapors, she immediately became ill. Within days, she was hospitalized. Thereafter, on December 12, 1997, she filed an application for service-connected disability retirement benefits with the Employees’ Retirement System for the City-Parish (“Retirement System”). The Board of Trustees of the Retirement System (“Board”) held a hearing on July 21, 1998, at which time the Board’s physician indicated that he had examined Mrs. Lirette and found that she was not disabled as a result of the benzene exposure. Mrs. Lir-ette’s application for service-connected disability retirement benefits was subsequently denied.

On August 4, 1998, Mrs. Lirette filed a petition seeking judicial review of the Board’s decision in accordance with La. R.S. 49:964. Mrs. Lirette took no further action regarding this petition for almost three years while she focused her attention on a tort suit related to the benzene exposure. In May 2001, Mrs. Lirette and the Retirement System filed a joint motion in the district court to remand the matter to the Board so that Mrs. Lirette could apply for ordinary disability retirement benefits 13rather than pursuing judicial review of the Board’s denial of Mrs. Lirette’s request for service-connected disability retirement benefits.

Following a remand, the Board conducted a hearing on August 80, 2001, at which time Mrs. Lirette’s application for ordinary disability retirement benefits was approved. The Board made its award retroactive to November 21, 2000, the first date on which the Board received any indication that Mrs. Lirette intended to request ordinary disability retirement benefits instead of service-connected disability retirement benefits. Thereafter, Mrs. Lirette sought judicial review of the Board’s decision, arguing that her retirement benefits should be made retroactive to December 12, 1997, the date on which she originally requested service-connected disability retirement benefits. In a judgment dated October 8, 2002, the district court modified the Board’s decision, making Mrs. Lirette’s ordinary retirement benefits retroactive to December 12,1997.

The Retirement System appealed the district court’s October 8, 2002 judgment to this court, alleging that it was error for the district court to award Mrs. Lirette ordinary disability retirement benefits retroactive to December 12, 1997, when Mrs. Lirette’s amended application for ordinary disability retirement benefits was not filed at that time. In an unpublished opinion, this court found the record did not support the district court’s modification of the Board’s decision, but concluded that additional evidence was necessary with regard to the actual date of Mrs. Lirette’s disability. Thus, we reversed the district court’s judgment and remanded the matter for the sole purpose of taking additional evidence on the issue of the date of Mrs. Lirette’s disability. See Lirette v. City of Baton Rouge, 02-2502 (La.App. 1 Cir. 9/26/03), 855 So.2d 434 (unpublished).

In accordance with, this court’s instructions, the matter was remanded to the Board, and a hearing was held on September 23, 2004, at which time the Board |4heard testimony from Mrs. Lirette and Dr. D.J. Scimeca, the Board’s medical consultant. In addition, the depositions of Mrs. Lirette’s treating physicians, Dr. Stephanie Cave and Dr. Deborah Abernathy, and a listing of Mrs. Lirette’s hospitalizations from April 1997 through May 2001 were introduced into the record for the Board’s consideration. The Board took the matter under advisement and, on October 28, 2004, rendered its opinion finding that Mrs. Lirette was entitled to ordinary disability retirement benefits retroactive to November 21, 2000.

Mrs. Lirette subsequently appealed the Board’s decision to the district court, and the matter proceeded to a hearing on July 13, 2005. After considering the administrative record and assessing the testimony of the doctors, the district court concluded that Mrs. Lirette’s disability occurred as a result of her illness during April 1997 and that the evidence in the record supported a disability claim retroactive to December 12, 1997, the date of her original application for service-connected disability retirement benefits. The court signed a judgment in accordance with its findings on July 21, 2005.

It is from this judgment that the Retirement System has appealed, assigning the following specifications of errors:

(1) The trial court erred in granting Plaintiff ordinary disability retirement benefits for a time period prior to Plaintiff making an amended application for such benefits with the Defendant.
(2) The trial court erred in finding that Plaintiff was disabled as of December 12, 1997, as Defendant found Plaintiff did not prove by a preponderance of evidence any date of disability prior to November 21, 2000, and the administrative decision was not arbitrary, capricious, or an abuse of discretion.

STANDARD OF REVIEW

Judicial review is a multifaceted function involving several types of reviews: statutory or constitutional review, procedural review, substantive review, factual preview, and fact-finding. St. Martinville, L.L.C. v. Louisiana Tax Com’n, 05-0457, p. 3 (La. App. 1 Cir. 6/10/05), 917 So.2d 38, 41. Pursuant to La. R.S. 49:964(G), the district court may reverse or modify the decision of the administrative agency on judicial review only if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

The Louisiana legislature enacted Acts 1997, No. 128, § 1, effective June 12, 1997, to amend paragraph G(6) of the Louisiana Administrative Procedure Act, La. R.S. 49:964, to empower the trial court to be a fact finder that weighs the evidence and makes its own conclusions of fact by preponderance of the evidence. Accordingly, we must defer to a trial court’s factual determinations and use a manifest error standard of review. St Martinville, 05-0457, at p. 4, 917 So.2d at 41-42.

DISCUSSION

In assignment of error number one, the Retirement System argues that Mrs. Lirette’s position that she is entitled to ordinary disability retirement benefits [ ¿retroactive to December 12, 1997, is unfounded as the application made at that time was for service-connected disability retirement benefits. Mrs. Lirette alleges that she was told by a representative of the Retirement System in 1997 that she should apply for service-connected disability retirement benefits. According to Mrs. Lirette, she was advised that if her request for service-connected disability retirement benefits was denied, she could then apply for ordinary disability retirement benefits, which, if granted, would be retroactive to the date she filed for the service-connected disability retirement benefits. The Retirement System acknowledges that it generally makes disability benefits retroactive for the period of time it takes to process an application for disability benefits and did so in Mrs. Lirette’s case by making her award retroactive to November 21, 2000, the first date on which Retirement System was made aware that Mrs. Lirette had decided to seek ordinary disability retirement benefits.

Eligible members of the Retirement System are entitled to disability retirement benefits upon application by the member and certification of disability by the Board’s physician. Section 1:265(D)(3) of the Code of Ordinances of the City-Parish provides, in pertinent part, as follows with regard to the application for such benefits:

Application for disability retirements shall be submitted by contributing members, along with a report from the member’s physician certifying that the member’s disability totally incapacitates the member from further performance of his normal duties.... Provided that the board’s physician or physicians shall certify that the member is mentally or physically totally incapacitated from the further performance of his normal duties, that such incapacity is likely to be permanent,' and that the member should be placed on disability retirement, the board shall approve the member’s application for a disability retirement allowance.

Thus, once a member makes the application for disability retirement benefits and said disability is certified by the Board’s physician, the member’s application must be approved by the Board. This application process is the same for both service-|eonnected7 disability and ordinary disability. Once the application for disability retirement benefits is made, the disability claim is pending, and, in the case of ordinary disability retirement, benefits are payable beginning on the date of disability as determined by the Board’s physician.

In the instant case, there is no dispute that Mrs. Lirette filed an application for service-connected disability retirement benefits on December 12, 1997, which application was denied on July 21, 1998. Mrs. Lirette subsequently sought judicial review of the Board’s decision on the service-connected disability application. Thereafter, in May 2001, Mrs. Lirette and the Retirement System joined in a motion to remand the matter to the Board so that Mrs. Lirette could be considered for ordinary disability retirement. By joining in said motion, the Retirement System effectively acknowledged what we believe to be true in this case; i.e., that based on the unique facts and circumstances herein, Mrs. Lirette’s disability claim was still valid and pending when the parties chose to return to the Board for its consideration of Mrs. Lirette’s eligibility for ordinary disability retirement benefits. Thus, we find no merit to the Retirement System’s argument on this issue.

In its second assignment of error, the Retirement System contends the evidence does not support a finding that Mrs. Lirette was disabled as of December 12, 1997, arguing instead that November 21, 2000 was an appropriate date for commencement of ordinary disability retirement benefits under the facts of this case.

When this matter was remanded to the Board in September 2004, additional evidence was received on the issue of the date of Mrs. Lirette’s disability. At the hearing on this issue, the Board’s physician, Dr. Scimeca, testified that he first examined Mrs. Lirette in July 1998 with regard to her application for service-connected disability retirement benefits. Dr. Scimeca opined at that time that Mrs. Lirette was in remission and was able to return to work. In August 2001, Dr. | ¡¡Scimeca examined Mrs. Lirette for the purpose of determining if she was eligible for ordinary disability retirement benefits. Dr. Scimeca noted a change in Mrs. Lirette’s condition from the time he had first examined her. Following his exam of Mrs. Lirette, Dr. Scimeca determined that she was “physically totally incapacitated for the further performance of her duties as an EMS supervisor” and that she should be granted an ordinary disability retirement. But he never provided a date for her disability, which was the mandated purpose of the hearing.

In. addition to the testimony of Dr. Scimeca, however, the Board considered the depositions of Mrs. Lirette’s treating physicians. Her regular treating physician, Dr. Cave, provided clear testimony by deposition that she told Mrs. Lirette at the time of her hospitalization (April 1997) that she could not work as an EMS tech.

Dr. Cave testified that the causes of her condition were more than the benzene that had been the source of her claim for service-related disability. She explained the reasons for and causes of Mrs. Lirette’s continuing problems, including problems with exhaustion and fatigue. She testified that Mrs. Lirette’s condition continued through December 1999, the last time she saw Mrs. Lirette, due to changes in insurance. She testified plainly, “I think from the time she was discharged until the time I stopped seeing her in ’99, I didn’t feel like she could be employed” due to her fatigue, falling down, not being able to get up once she fell, arthritis, vasculitis, nephritis, thyroiditis, and hemolytic anemia. She further testified, “I don’t think she would be a good risk in any work environment.” She testified that Mrs. Lirette “never really improved.”

Dr. Abernathy, who was brought into the case by Dr: Cave as a hematologist in April 1997, also testified by deposition. While she testified that Mrs. Lirette was “doing fairly well” in September 1998, she stated that she did not know if Mrs. | aLirette would have been cleared for work at that point. She reiterated that she did not know whether Mrs. Lirette was able to work at that time.

Based on the recommendation from Dr. Scimeca and the testimony of Mrs. Lir-ette’s treating physicians, the Board made the following findings in its October 28, 2004 opinion:

This matter was remanded to the [Board] so that additional evidence could be taken with reference to the disability of [Mrs.] Lirette.
The record reflects that [Mrs.] Lirette filed an application for service-connected disability retirement benefits on December 12, 1997. The Board held a hearing on this application on July 21, 1998, at which time the application for service-connected disability retirement benefits was denied based upon the Board physician’s advice that [Mrs.] Lirette was not disabled as a result of a job-related accident. [Mrs.] Lirette was offered the opportunity at that time to convert her service-connected disability application to an ordinary disability application which would not require the proof of an on-the-job injury. Rather than proceed with an ordinary disability retirement application and the associated disability determinations which are required under such an application, [Mrs.] Lirette chose to seek judicial review of the Board’s decision on the service-connected disability application by filing a Petition For Appeal on August 4,1998.
The record reflects that the Board did not receive any communication from [Mrs.] Lirette until such time as her counsel advised the Board’s general counsel that [Mrs.] Lirette desired to be considered for an ordinary disability by correspondence dated November 21, 2000. After an examination by the Board physician subsequent to November 21, 2000, the Board granted [Mrs.] Lirette an ordinary disability retirement and paid her retroactive to November 21, 2000.
The Board finds that [Mrs.] Lirette’s demand to be paid disability benefits retroactive to December 12, 1997 is not allowed under the Retirement Ordinances requiring that the disability be determined as of the date of application. As the Court of Appeal held in its decision, the retroactive payments commonly made by the Retirement System are meant to provide only for the period of time necessary to process an application for benefits. The length of time that passed in [Mrs.] Lirette’s case was not due to this administrative process but rather to [Mrs.] Lirette choosing to pursue her tort suit rather than an application for ordinary disability retirement immediately upon the denial of her service-connected disability retirement application. By failing to apply for the ordinary disability retirement benefit immediately and by failing to have the associated disability determinations performed at that time, [Mrs.] Lirette has [incaused the delay in the payment of benefits which the Board finds to be exclusively as a result of her decision and at her fault. The Board’s physician was of the opinion that it is not possible to determine the exact date upon which [Mrs.] Lirette may have been disabled between December 12, 1997 and November 21, 2000. [Mrs.] Lirette’s own physician, Dr. Abernathy, was of the opinion that [Mrs.] Lirette was doing fine into the year 2000, and was unable to offer an opinion on whether or not she was able to work at that time or as to whether or not she was disabled.
The Board finds that the delay from the time of the Board’s denial of [Mrs.] Lirette’s service-connected disability application on July 21, 1998 until November 21, 2000, the first date on which the Retirement System was aware that [Mrs.] Lirette desired to apply for an ordinary disability retirement, has resulted in [Mrs.] Lirette’s inability to provide any proof to the Board as to the date on which she first became disabled. The Board also finds that this delay from July 21,1998 to November 21, 2000 did not occur as a result of the Board’s administrative process for approving disability applications, but rather from conduct exclusively within the control of [Mrs.] Lirette.
Accordingly, the Board is of the opinion that the payments made to [Mrs.] Lirette from November 21, 2000 to the present satisfy in full the Retirement System’s liability under the Retirement Ordinances in reference to her application for ordinary disability benefits.

After considering the same evidence that the Board had before it, however, the district court found that the evidence supported a disability claim for Mrs. Lirette retroactive to December 12, 1997. In oral reasons for judgment issued on July 13, 2005, the district court stated that Mrs. Lirette was disabled on December 12, 1997. In its judgment, the district court further found that she was disabled as a result of her illness during April 1997, that she was disabled as of December 12, 1997, and that her disability continued through the date of judgment.

The district court’s finding that Mrs. Lirette was disabled in December 1997, at the time she applied for disability benefits, is supported by the record and is not manifestly erroneous. Under the manifest error rule, if the fact finder’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990). Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State, through DOTD, 617 So.2d 880, 883 (La.1993).

We acknowledge a lack of evidentiary support for the trial court’s finding that Mrs. Lirette’s disability “occurred as a result of her illness during April of 1987.” However, the trial court’s finding that Mrs. Lirette was “disabled as of December 12, 1997 ... and her disability continues through the current date” is fully supported by the record.

December 12, 1997 was the date of Mrs. Lirette’s initial application for disability benefits. It appears from the record that this is the first date from which disability benefits could be awarded; and, as discussed above, this application was still valid and pending when the Retirement Board considered Mrs. Lirette’s claim for ordinary disability.

This court’s prior opinion in this matter held that “the district court erred in modifying the Retirement Board’s decision and making the payments retroactive to 1997” because “there is no evidence upon which the district court can base a conclusion that Lirette was disabled in 1997.” Lirette v. City of Baton Rouge, 02-2502, p. 6 (La.App. 1 Cir. 9/26/03), 855 So.2d 434 (unpublished). On remand, the Board received evidence, including competent evidence from Dr. Cave that, from whatever cause, Mrs. Lirette was disabled at the time of her hospitalization in April 1997, remained disabled at the time of Mrs. Lirette’s application for benefits in December 1997, and continued to be disabled due to her medical conditions.

On judicial review, in its role as fact finder, the trial court was not manifestly erroneous in crediting this testimony over that of the other doctors. Giving the trial court its due deference under the manifest error rule, we accept its factual findings. Accordingly, we affirm the judgment of the trial court.

| ^DECREE

For the above and foregoing reasons, we affirm the district court’s July 21, 2005 judgment. Appeal costs in the amount of $695.17 are assessed against the Employees’ Retirement System for the City of Baton Rouge, Parish of East Baton Rouge.

AFFIRMED.

PETTIGREW, J., dissents and assigns reasons.

PETTIGREW, J.,

dissenting.

|¶1 must respectfully dissent from the majority. In my humble opinion there is nothing in the record to support the district court’s finding that Mrs. Lirette was disabled as of December 12,1997. Rather, the consensus among the medical providers in this case is that Mrs. Lirette was disabled as of her hospitalization for vascu-litis, which according to the record was on February 26, 2000. I would reverse the district court’s July 21, 2005 judgment and award Tamara Lirette ordinary disability retirement benefits from the Employees’ Retirement System for the City of Baton Rouge and the Parish of East Baton Rouge effective February 26, 2000.

      . Pursuant to La. R.S. 49:964, entitled "Judicial review of adjudication,” a person aggrieved by a final decision or order in an adjudication proceeding is entitled to judicial review in the district court of the parish in which the agency is located.


author: ARMSTRONG, C.J.

text:
    Herbert WILLIAMS v. Lynn COOPER, Richard Stalder and Libby Tigner.
    No. 2005 CA 2360.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 2006.

      Debra A. Rutledge, Baton Rouge, for Defendant/Appellee, Richard Stalder.
    Herbert Williams, Angie, In Proper Person Plaintiff/Appellant, Herbert Williams.
    Panel composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, and Judge LEON A. CANNIZZARO, Jr., serving as Judges ad hoc by special appointment of the Louisiana Supreme Court.
   ARMSTRONG, C.J.

| ¡..Herbert Williams seeks review of an administrative ruling, upheld by the Nineteenth Judicial District, whereby he is being given credit for time served on only one of two sentences imposed in 1996 to be served consecutively.

On November 4,1987, Williams was convicted of one count each of armed robbery and attempted armed robbery. The court sentenced him on November 6, 1987, to serve thirty years at hard labor without benefit of parole, probation, or suspension of sentence on the armed robbery count and fifteen years at hard labor on the attempted armed robbery count, the sentences to be served consecutively. The Fourth Circuit affirmed his convictions and sentences in State v. Williams, 541 So.2d 401 (La.App. 4 Cir.1989), and the Supreme Court denied writs, State v. Williams, 564 So.2d 320 (La.1990). In 1993, in response to Williams’ pro se motion to correct an illegal sentence, the Fourth Circuit vacated his sentence on the attempted robbery count because it was illegally lenient in that it did not prohibit eligibility for parole, probation, or suspension of sentence, and it remanded the case to the trial court for resentencing, in compliance with State v. Desdunes, 579 So.2d 452 (La.1991), for a determination of the sentencing judge’s intent.

On remand, on December 20, 1993, the trial court resentenced Williams on the attempted robbery count to fifteen years at hard labor without benefit of parole, probation, or suspension of sentence, with credit for time served. Williams filed another pro se motion to correct an illegal sentence based upon the trial court’s failure to comply with Desdunes when | ¡¡resentencing him. In 1994, the Fourth Circuit vacated the December, 1993 resen-tencing and remanded the case for resen-tencing in compliance with Desdunes. In response, on April 21, 1995, the trial court “amended” the sentence to deny eligibility for parole, probation, or suspension of sentence. Williams filed yet another motion to correct an illegal sentence, again complaining that the trial court failed to comply with Desdunes. The Fourth Circuit vacated the April, 1995 sentence and remanded the case for resentencing in compliance with Desdunes. On January 24, 1996, the trial court resentenced Williams to serve thirty years at hard labor without benefits for the armed robbery conviction and fifteen years at hard labor without benefits for the attempted armed robbery conviction, the sentences to run consecutively to each other “less credit for time served.”

On July 30, 2003, Williams filed a petition with the Department of Public Safety and Corrections (“DPSC”) through its Administrative Remedy Procedures wherein he complained that he was not being given credit for time served on both of his sentences. The DPSC denied his petition on October 13, 2003, and on further review of this ruling, it denied relief on December 4, 2003. Williams filed a Petition for Judicial Review in the Nineteenth Judicial District on December 23, 2003 and filed a supplemental petition on January 10, 2004. The DPSC answered, and on August 11, 2005 the commissioner issued his recommendation denying relief. Williams objected to the commissioner’s recommendation, and on September 12, 2005 the district court denied relief. Williams moved for an appeal on September 21, 2005, and the district court granted his appeal on October 13, 2005. The DPSC has not responded.

[4Williams now comes before this Court seeking relief from the district court’s ruling. He argues that this ruling is erroneous because it is based upon an incorrect interpretation by the commissioner of whether the trial court intended to grant him credit for time served on both of his 1996 sentences. He maintains that it is the sentencing judge’s intent, not that of the DPSC, which governs the conditions upon which a sentence must be served.

In support, he cites Blair v. Stalder, 99-1860 (La.App. 1 Cir. 1/31/01), 798 So.2d 132, where this Court set forth the standard of review of an appeal from a district court’s ruling on an appeal from an administrative entity’s ruling:

[WJhen reviewing an administrative final decision in an adjudication proceeding, the trial court functions as an appellate court. Eicher v. Louisiana State Police, Riverboat Gaming Enforcement Division, 97-0121, p. 5 (La.App. 1 Cir. 2/20/98), 710 So.2d 799, 803, writ denied, 98-0780 (La.5/8/98), 719 So.2d 51. Once a final judgment is rendered by the trial court, an aggrieved party may seek review of same by appeal to the appropriate appellate court. On review of the district court’s judgment, no deference is owed by the court of appeal to factual findings or legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal. Eicher, 97-0121 at 5 n. 5, 710 So.2d at 803 n. 5. With these principles in mind, we have thoroughly reviewed the entire administrative record in the instant case and find that the trial court erred in dismissing Blair’s suit.
It is well settled that the determination of the sentence a defendant is to serve, and what, if any, conditions are to be imposed on that sentence, is made by the trial judge, not the defendant’s custodian. The custodian’s obligation is to see that the sentence imposed is the sentence served. State ex rel. Pierre v. Maggio, 445 So.2d 425, 426 (La.1984). Thus, DOC is charged with the responsibility of complying with any conditions placed on a sentence by the trial judge.

Id. at p. 9, 798 So.2d at 139.

As per La. R.S. 15:1177 A(9) a district court may reverse or modify an administrative ruling only if the ruling prejudices the substantial right of the appellant because the ruling: (1) violates a constitutional or statutory provision; (2) is in excess of the statutory authority of the agency; (3) is made upon unlawful procedure; (4) is affected by other error of law; (5) is arbitrary, capricious, or characterized by abuse of discretion; or (6) is manifestly erroneous in view of the reliable, probative, and substantial evidence in the whole record. See also, Lightfoot v. Stalder, 2000-1120 (La.App. 1 Cir. 6/22/01), 808 So.2d 710.

Here, Williams takes exception to the district court’s ruling that he is not entitled to credit for time served on both his armed robbery and his attempted armed robbery 'sentences that the trial court ordered to be served consecutively. At the 1996 resentencing, the trial court resen-tenced Williams on both counts, not just the count upon which the Fourth Circuit ordered the trial court to resentence him. The trial court imposed a thirty-year sentence without benefit of parole, probation, or suspension of sentence for the armed robbery conviction and a fifteen-year sentence on the attempted armed robbery conviction without these benefits. The court then |fistated: “Said sentences to run consecutive to each other less credit for time served.” The commissioner for the district court interpreted this sentence to mean that Williams would get credit for time served only on one count, the thirty-year sentence. Williams disagrees, noting that the minute entry of resentencing states that he was to receive credit for time served on both counts.

As noted by Williams, where there is a discrepancy between a minute entry and a transcript, the transcript prevails. State v. Lynch, 441 So.2d 732 (La.1983). Here, Williams argues that the minute entry does not contradict the transcript. Rather, he contends, the transcript could just as easily be interpreted to comport with the minute entry. Indeed, the trial court’s words would support a finding that it intended that Williams be given credit for time served on both sentences, in that the court stated: “said sentences to run consecutive to each other less credit for time served.” It is unclear why the trial court resentenced Williams on the armed robbery count at that time because the earlier writs to the Fourth Circuit pertained only to the attempted armed robbery sentence, and no argument was made with respect to the armed robbery count. Nonetheless, the minute entry of January 24, 1996 indicates that the court imposed both sentences with credit for time served. The minute entry does not contradict the sentencing transcript.

As noted above, this Court is not bound by the factual findings of the district court. The transcript of the January 24, 1996 resentencing, when added to the minute entry of that resentencing, leads to the conclusion that the trial court intended that Williams receive credit for time served on both |7sentences. 'Accordingly, the ruling of the district court is reversed and the Department of Corrections is ordered to compute Williams’ armed robbery and attempted armed robbery sentence with credit for time served.

REVERSED.

      . The Louisiana Supreme Court, in Pope v. State, 99-2559 (La.6/29/01), 792 So.2d 713, held La.R.S. 15:1171-1179 to be unconstitutional to the extent that those statutes are applied to tort actions. The court held that the Legislature cannot, by legislative act, divest the district courts of the original jurisdiction fixed by the Constitution in those civil matters, such as tort actions, in which the Constitution does not otherwise provide for original jurisdiction in other tribunals. The Legislature, of course, is free to enact procedures for initial submission of tort claims by prison inmates to an administrative agency for review, for example, of frivolous claims, as long as the action of the administrative agency does not constitute the exercise of original jurisdiction. Pope v. State at p. 12, 792 So.2d at 720.

      . Furthermore, this interpretation is consistent with the transcripts, minute entries and commitment forms of the prior sentencing hearings.