author: TERRI F. LOVE, Judge.

text:
    ELLIS CONSTRUCTION, INC. v. VIEUX CARRE RESORT PROPERTIES, L.L.C.
    No. 2005-CA-1109.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 2006.

      Lloyd N. Shields, Daniel Lund, III, Richard A. Houston, III, Shields Mott Lund L.L.P., New Orleans, LA, for Plain-tiffiAppellant.
    Richard J. Tomeny, Jr., Becknell & To-meny, Kenner, LA, for Defendant/Appel-lee.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS JR., Judge EDWIN A. LOMBARD).
   TERRI F. LOVE, Judge.

|,This appeal arises from a dispute between Ellis Construction, Inc. and Vieux Carre Resort Properties, L.L.C. regarding a condominium property located at 917 Toulouse Street. Vieux Carre Resort Properties, L.L.C. executed a collateral mortgage and security agreement in favor of Ellis Construction, Inc. to secure payment on a contract for the construction and remodeling of the 917 Toulouse Street property. Ellis Construction, Inc. filed a Petition for Executory Process to seek repayment of an alleged debt. Vieux Carre Resort Properties, L.L.C. filed a petition for preliminary injunction based on the arbitration clause in the construction contract. The trial court granted the preliminary injunction, ordered that all claims be submitted to arbitration, and arrested the seizure and sale of the 917 Toulouse Street property. We find that the trial court did not err by compelling arbitration based upon a binding arbitration clause and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Vieux Carre Resort Properties, L.L.C. (“Vieux Carre”) entered into a construction contract (“Contract”), which contained an arbitration clause, with Ellis Construction, Inc. (“Ellis”) for work to be performed on condominiums (“Condos”) located at 917 Toulouse Street on July 6, 2000. Vieux Carre executed | aa Collateral Mortgage and Security Agreement (“Mortgage”) and a Collateral Mortgage Note (“Ne Varietur Note”), paraphed by notary Stephen J. Broussard, in favor of Ellis on May 1, 2002, to secure payment for construction of the Condos. Vieux Carre confessed judgment and waived all notices, delays, and benefits granted by the Louisiana Civil Code in the Mortgage. The Mortgage was recorded on May 6, 2002. The Ne Varietur Note was made payable to bearer in the amount of $500,000. Vieux Carre allegedly incurred a $71,823.70 debt to Ellis in conjunction with construction of the Condos. Vieux Carre formally demanded that Ellis submit the dispute to mediation and arbitration. Ellis refused.

Ellis filed a Petition for Executory Process seeking to seize and sell the Condos allegedly collaterally mortgaged by Vieux Carre. Ellis attached a certified copy of the Mortgage and the Ne Varietur Note to the verified petition, which stated that Vieux Carre owed a principal balance of $71,823.70. The trial court granted the order for seizure and sale of the Condos. Vieux Carre then filed a Petition for Preliminary Injunction and Permanent Injunction to Arrest Seizure and Sale of Property Under Executory Process and for Damages. Vieux Carre alleged the collateral mortgage documents were executed to secure another development project with no outstanding indebtedness. Vieux Carre also alleged the improper use of executory process because Ellis did not provide evidence of the debt and that it would suffer “immediate and irreparable harm.” Vieux Carre then filed an Amended Petition for Preliminary Injunction and Permanent Injunction to Arrest Seizure and Sale of Property Under Executory Process and for Damages and Alternatively to Enforce Arbitration Provision and Alternatively Exception of Prematurity. Vieux Carre asserted that the debt was unliquidated and subject to mediation and arbitration.

| ¡¡After a hearing, the trial court granted Vieux Carre’s preliminary injunction, arrested the seizure and sale of the Condos, granted the motion to enforce arbitration, and ordered Ellis and Vieux Carre to submit the claims to binding arbitration. The trial court then granted Ellis’ Motion and Order for Appeal from the judgment. Ellis asserts the trial court erred by granting the preliminary injunction and compelling the parties to binding arbitration.

STANDARD OF REVIEW

“An appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction. ...” La. C.C.P. art. 3612. Appellate courts review a trial court’s granting of a preliminary injunction by determining if the trial court committed an error of law or if the granting was manifestly erroneous or clearly wrong. Saunders v. Stafford, 05-0205, p. 5 (La.App. 4 Cir. 1/11/06); 923 So.2d 751, 754. “[T]he petitioner must show that he is entitled to the relief sought and must establish a prima facie showing that he will prevail on the merits of the case.” Id.

Judgments that compel arbitration “are not subject to an immediate appeal,” but “supervisory relief may be appropriate under the facts and circumstances of a particular case.” Sessions, Fishman & Nathan, L.L.P. v. Salas, 04-1790, 04-1467, pp. 5-6 (La.App. 4 Cir. 5/25/05); 905 So.2d 373, 377, citing Collins v. Prudential Ins. Co. of Am., 99-1423, pp. 6, 9 (La.1/19/00); 752 So.2d 825, 829, 831. However, due to the unique nature of the case involving the res nova legal interaction of a preliminary injunction, executory process, and an arbitration clause, we find this case merits appellate consideration.

“The determination as to whether to stay or compel arbitration is a question of law.” Dufrene v. HBOS Mfg., LP, 03-2201, p. 2 (La.App. 4 Cir. 4/07/04); 872 So.2d 1206, 1209. A trial court’s judgment which compels arbitration is reviewed under a two prong test: 1) is there a valid arbitration agreement and 2) does the dispute “fall within the scope” of the agreement. Lakeland Anesthesia, Inc. v. United Healthcare of La., Inc., 03-1662, p. 9 (La.App. 4 Cir. 3/17/04); 871 So.2d 380, 388.

ARBITRATION

Arbitration is a “substitute for litigation.” Thomas v. Desire Cmty. Hous. Corp., 98-2097, p. 7 (La.App. 4 Cir. 7/19/00); 773 So.2d 755, 759. The party seeking to enforce an arbitration clause “may petition” the trial court and the trial court “shall issue an order directing the parties to proceed to arbitration in accordance with the terms of the agreement.” La. R.S. 9:4203. Louisiana law favors arbitration. La. R.S. 9:4201; Aguillard v. Auction Mgmt. Corp., 04-2804, 04-2857, p. 6 (La.6/29/05); 908 So.2d 1, 7. The Louisiana Supreme Court held that a “presumption of arbitrability” exists. Aguillard, 04-2804, at p. 24, 908 So.2d at 18. The Court also stated that federal jurisprudence should provide “guidance in the interpretation of our provisions” because of the “strong and substantial similarities between our state arbitration provisions and the federal arbitration law.” Id. at pp. 25-26, 908 So.2d at 18. The federal arbitration law adopts a “liberal ... policy favoring arbitration agreements.” Id. at p. 7, 908 So.2d at 8-9. When the parties contractually agree to arbitration, they have validly selected an alternate forum (from a court) to determine the dispute between them.

|sThe Contract between Ellis and Vieux Carre contains an arbitration clause that states, in pertinent part:

9.10 CLAIMS AND DISPUTES
9.10.1 Claims, disputes and other matters in question arising out of or relating to this Contract, including those alleging an error or omission by the Architect but excluding those arising under Paragraph 15.2, shall be referred initially to the Architect for decision. Such matters, except those relating to aesthetic effect and except those waived as provided for in Paragraph 9.11 and Subpar-agraphs 14.5.3 and 14.5.4, shall, after initial decision by the Architect or 30 days after submission of the matter to the Architect, be subject to mediation as a condition precedent to arbitration or the institution of legal or equitable proceedings by either party.
9.10.4 Claims, disputes and other matters in question arising out of or relating to the Contract that are not resolved by mediation, ... shall be decided by arbitration ....

This Court’s review of the trial court’s decision to compel arbitration involves a bifurcated analysis. First, neither party asserts that the Contract or the arbitration clause is invalid. Both parties agreed to and signed the Contract containing the arbitration clause. It is therefore binding upon them. Second, Ellis’ claim for money allegedly owed as a result of the construction performed on the Condos is within the scope of the arbitration clause. The clause contains broad language that encompasses “[cjlaims, disputes and other matters in question arising out of or relating to the Contract.” Thus, given the strong presumption in favor of upholding arbitration agreements and the fact that the debt dispute is covered by the arbitration clause, we do not find that the trial court committed error by compelling arbitration.

| (¡Once the trial court finds a valid arbitration agreement, Louisiana law provides a remedy for the party seeking arbitration.

“If any suit or proceedings be brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which suit is pending, upon being satisfied that the issue involved in the suit or proceedings is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until an arbitration has been had in accordance with the terms of the agreement. ...”

La. R.S. 9:4202. We do not find that the trial court erred by arresting the seizure and sale of the Condos.

COLLATERAL MORTGAGE

A collateral mortgage recognizes that a mortgagor “can pledge a note secured by a mortgage ... to secure another mortgage.” Diamond Servs. Corp. v. Benoit, 00-0469, p. 6 (La.2/21/01); 780 So.2d 367, 371. A collateral mortgage note and a collateral mortgage are executed to pledge as collateral for a “pre-existing debt,” a future debt, or a “series of debts.” Max Nathan, Jr. and H. Gayle Marshall, The Collateral Mortgage, 33 La. L.Rev. 497, 498 (1973).

There are four requirements to create a collateral mortgage. First, the mortgagor executes an “act of mortgage, acknowledging an indebtedness in the act of mortgage,” and states “that he intends to use the ‘mortgage note’ to raise funds.” Id. at 499. Second, the mortgagor “executes a promissory note that is generally payable to ‘Bearer.’” Id. at 500. This note is called a “ne varietur” note or a collateral mortgage note. Diamond, 00-0469, p. 6, 780 So.2d at 371. Third, the mortgagor pledges the “ne varietur” note as collateral to secure the “true debt.” Max Nathan, Jr. and H. Gayle Marshall, The Collateral Mortgage, 33 La. L.Rev. 497, 502 (1973). Evidence of the pledge is not required to be in writing. Liberty Bank and Trust Co. v. Dapremont, 02-1504, p. 20 (La.App. 4 Cir. 2/11/03); 844 So.2d 877, 890. The pledge can be confected by the delivery of the “ne varietur” note. Fourth, there must be evidence of the true indebtedness. Liberty, 02-1504, p. 21, 844 So.2d at 891. The true debt can be evidence by a hand note. Max Nathan, Jr. and H. Gayle Marshall, The Collateral Mortgage, 33 La. L.Rev. 497, 502 (1973). However, the debt may also be proven by a verified or supplemental petition or “other evidence representing the actual indebtedness.” La. C.C.P. art. 2637(C). Thus, the act of mortgage and the “ne varietur” note combine to act as collateral for a debt just like stock, bonds, or property.

On May 1, 2002, Vieux Carre executed the Mortgage and Ne Varietur Note. The Mortgage references the Ne Varietur Note and states that it pertains to the Condos. The Mortgage also states that it was confected to “secure any obligation of the Mortgagor now existing or hereafter arising.” Vieux Carre waived the benefit of appraisal, demand, the three-day delay, notice of seizure, division, discussion, and any other benefits provided by Louisiana law. The Ne Varietur Note is in the amount of $500,000, is payable to bearer, and is paraphed for indentification with the Mortgage.

Vieux Carre’s debt allegedly arose from construction work completed at the Condos. The Mortgage encompasses this debt because it is “any obligation” of Vieux Carre “hereafter arising.” Thus, Ellis possesses a perfected collateral mortgage that secures the alleged debt of $71,823.70, as stated in the Petition for Executory Process.

EXECUTORY PROCESS

Executory process is “used to effect the seizure and sale of property, without previous citation and judgment, to enforce a mortgage or privilege thereon.... ” La. C.C.P. art. 2631. It is a “unique and harsh remedy requiring strict construction.” Moore v. La. Bank & Trust Co., 528 So.2d 606, 609 (La.App. 2 Cir. 5/4/88), citing Myrtle Grove Packing Co. v. Mones, 226 La. 287, 76 So.2d 305, 306 (1954). The plaintiff must prove his right to use execu-tory process by submitting a petition asking, for the seizure and sale of the mortgaged property with authentic evidence of: (1) the note or other instrument which evidences the obligation secured by the mortgage and (2) the authentic act of mortgage that imports a confession of judgment. La. C.C.P. art. 2634; La. C.C.P. art. 2635. A certified copy or a duplicate original of the authentic act or a certified copy of the note, paraphed with the mortgage, are considered authentic evidence. La. C.C.P. art. 2636. “An authenticated record that contains a confession of judgment shall be deemed to be authentic for purposes of executory process.” La. R.S. 10:9-629(a)(1). Evidence of the “actual indebtedness” secured by the collateral mortgage need not be authentic and may be proven by the verified petition. La. C.C.P. art. 2637(C). The verified petition “may be based upon plaintiffs or affi-ant’s personal knowledge or upon information and belief based upon the records ... kept or obtained in the ordinary course of business.” La. R.S. 10:9-629(a)(6). The information in the verified petition does not have to specify upon which “records or data” the indebtedness information is based. La. R.S. 10:9-629(a)(6).

Vieux Carre avers that Ellis did not follow the proper procedure for execu-tory process. Ellis attached a certified copy of the Mortgage, containing a confession of judgment, and the Ne Varietur Note, paraphed to the Mortgage, to the verified Petition for Executory Process. Ellis alleged that Vieux Carre owed it a “principal balance” of $71,823.70. The statement of the alleged debt in the verified petition is sufficient to satisfy Louisiana requirements as evidence of the true indebtedness, pursuant to La. R.S. 10:9-629. Thus, Ellis was entitled to the use of executory process on the collateral mortgage. However, this case presents a res nova issue of the interaction of the right to executory process and a contract containing an arbitration clause. Therefore, we proceed with our analysis.

PRELIMINARY INJUNCTION

[11] The defendant may use an injunction to arrest the seizure and sale of property if: 1) “the debt secured by the security interest, mortgage, or privilege is extinguished;” 2) the debt is not legally enforceable; or 3) the procedure for exec-utory process has not been followed. La. C.C.P. art. 2751. An injunction proceeding seeking to arrest the seizure and sale by executory process “shall be governed by the provisions of Articles 3601 through 3609 and 3612, except as provided in Article 2753.” La. C.C.P. art. 2752(A). “An injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result....” La. C.C.P. art. 3601. “Irreparable injury means the applicant cannot be adequately compensated in money damages for his injury or suffers injuries which cannot be measured by pecuniary standards.” HCNO Servs., Inc. v. Secure Computing Sys., Inc., 96-1753, 96-1693 (La.App. 4 Cir. 4/23/97); 693 So.2d 835, 842.

An injunction in a proceeding for executory process is based upon the three grounds stated above. None of the three grounds exist in this case. However, the preliminary injunction is also issued to prevent irreparable injury, as referenced in La. C.C.P. art. 2752(A). Thus, this Court must determine if Vieux Carre would suffer irreparable injury without issuance of the preliminary injunction. Stephen Broussard’s affidavit, the notary public who paraphed the Ne Varietur Note, asserts that third parties now own the Condos. Thus, Vieux Carre would not only suffer immediate monetary damages, it could also suffer injuries to its business disreputation. This type of injury can also be measured by pecuniary standards. Therefore, this case does not meet the qualifications for a preliminary injunction. However, pursuant to La. R.S. 9:4202, Vieux Carre is entitled to a stay in the seizure and sale of the Condos because of the suspensive condition before executory process may commence, to-wit, arbitration of the amount owed by Vieux Carre, if any. Therefore, we find the trial court did not err in granting the preliminary injunction.

This case presents res nova issues for consideration by this Court. Although ex-ecutory process is intended to grant accelerated relief to creditors without a trial, both Vieux Carre and Ellis signed the Contract containing the arbitration clause. Thus, both parties created an additional legal remedy in the Contract. The Louisiana Civil Code recognizes wide discretion for individual contractual freedom. Thus, parties may contract in their own terms as long as the terms or object of the contract are not illegal or specifically prohibited by statute. Parties may contractually give up or add legal remedies not specifically provided for or prohibited by statute. Vieux Carre did this by waiving all remedies and delays in its collateral mortgage.

The right to use executory process is contractual. Parties must execute a series of specific documents, pursuant to Louisiana law, to create that right. The Louisiana Civil Code provides for some instances where parties cannot contract around specific statutes. . See La. C.C. art. 3471. However, Louisiana statutes do not prohibit parties from contracting around the use of executory process. “In the absence of legislative intent to the contrary, we find no reason to limit the ability of contractual freedom of the parties.... ” Guidroz v. Lewis, 626 So.2d 736, 738 (La.App. 5 Cir.1993). Therefore, we find that both parties knew that any claims or disputes would be submitted to arbitration regardless of Ellis’ right to use executory process. Accordingly, considering Louisiana’s strong preference of upholding arbitration clauses and both parties’ contractual freedom, we find that the trial court did not err.

DECREE

For the reasons stated above, we affirm the decision of the trial court.

AFFIRMED.

      . The transcript of the hearing is not contained in the record on appeal.

      . La. R.S. 9:4201: Validity of arbitration agreements
      A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time if the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

      . The record does not contain reasons for the trial court's judgment. Therefore, it is unclear whether the trial court compelled arbitration strictly to liquidate Vieux Carre’s debt or to fully settle the dispute. At a minimum, we find that the arbitration will determine the amount of the debt, if any, for executory process may only be determined in a judicial proceeding.

      . La. C.C. art. 1971: Freedom of parties Parties are free to contract for any object that is lawful, possible, and determined or determinable.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    Wanda BAZILE v. Lynarval WASHINGTON.
    No. 05-1583.
    Court of Appeal of Louisiana, Third Circuit.
    June 14, 2006.
    Randal B. Tannehill, Tannehill & Sylvester, LLP, Pineville, LA, for Plaintiff/Appellant, Wanda Bazile.
    Lauren Gay Coleman, Coleman & Henderson, LLC, Alexandria, LA, for Defendant/Appellee, Lynarval Washington.
    Court composed of JOHN D. SAUNDERS, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   GREMILLION, Judge.

hln this case, the plaintiff, Wanda Ba-zile, appeals the trial court’s judgment ordering that the defendant, Lynarval Washington, pay her $750 per month in child support. For the following reasons, we remand for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

Bazile and Washington have two minor children; one born in 1992, and the other in 1993. A 1998 judgment ordered Washington to pay $200 per month per child ($400 per month) in child support. Bazile filed a Rule to Increase Child Support in November 2004, urging that the needs of the minor children had increased and that Washington’s income had increased. Following a hearing in May 2005, a judgment was rendered increasing Washington’s child support obligation to $375 per month per child ($750 per month). Bazile now appeals.

Bazile assigns as error:

1. The trial court’s failure to include all, or part of, Washington’s spouse’s income in calculating the child support amount.
2. The trial court’s failure to include the value of other benefits that Washington receives from his employment when determining gross income.
3. The trial court’s failure to take into account Washington’s checking account statements which clearly showed thousands of dollars being deposited into his account on a monthly basis.
4. The trial court’s failure to include an $8,000 profit that Washington made on the sale of two pieces of immovable property, when calculating his gross income.
Ii>5. The trial court failed to indicate in its Reasons for Judgment whether it followed the guidelines for child support set forth in Louisiana law or whether it deviated from the guidelines, and, if so, why that deviation was necessary.

DISCUSSION

The trial court has great discretion in determining a child support award, and its findings of fact regarding financial matters underlying an award of child support will not be disturbed in the absence of manifest error or a clear abuse of discretion. McCorvey v. McCorvey, 05-889 (La.App. 3 Cir. 2/1/06), 922 So.2d 694, writ denied, 06-0435 (La.4/28/06), 927 So.2d 295; Murphy v. Murphy, 04-1332 (La. App. 3 Cir. 2/2/05), 894 So.2d 542, writ denied, 05-0983 (La.11/28/05), 916 So.2d 144.

In its reasons for ruling, the trial court stated:

Upon cursory review, it would appear that Mr. Washington has considerable assets. However, upon a thorough review, one must form the opinion that Mr. Washington is “drowning in debt”. For purposes of brevity, this Court will not reiterate all the evidence presented at trial on this matter. This Court will also note that the undersigned has reviewed all exhibits, including a voluminous box of credit card expenses and receipts submitted by Mr. Washington, in pondering this opinion. To reiterate, for purposes of brevity, all evidence and testimony will not be repeated.
If one is to accept Mr. Washington’s testimony, he has $5,319.00 in expenses every month, with only $4,000 of income. He indicated that he would “go $1,000.00 in the hole” every month. It does appear that he has some $77,000 in debt. He has taken cash advances from his credit cards, applied to his business.

The evidence adduced at trial was as follows: Bazile testified that she is currently married and her husband earned $29,000 in 2004. She stated that she just began working and earns $5.70 per hour working between forty and forty-five hours per week. Bazile testified that her monthly expenses were as follows: rent $300, | ¡¡electricity $20, car note $292, and car insurance $233. Bazile stated that she did not work from August 2004 through April 2005. Her 2004 tax return showed income of $4,645. She testified that she has one child by her current husband, who was seven years old at the time of trial. She further testified that the highest hourly rate she has ever received was $6.00 per hour.

Washington testified that he has lived in Texas with his current wife for close to three years. He stated that he is the owner and 100% shareholder of a sole proprietorship, Washington Capital Funding, a mortgage broker shop. He testified that he pays himself $2,500 per month and has rental income of $1,500 from three rental units. Washington testified that he rents out the first property for $800 per month, but that the monthly note is $900. The second property rents for $400 with a note of $550 and the third for $800, with a note of $425. He also testified that he and his wife recently purchased the home they reside in for $165,000. Washington then reviewed W-2 forms for the year 2004, in which he reported earnings of $13,843.20 from his company and $39,215.41 from his employment at Novastar Financial Inc.

Washington then discussed a monthly income and expense statement which shows $4,000 in income, but $6,736 worth of monthly expenses. Washington testified that the $1,417 house note is paid by his wife, who is also employed by Washington Capital Funding as a marketing director. He testified that she is salaried and earns $2,500 per month. However, he testified that he and his wife have only one joint account, but that his wife pays the house note with a cashier’s check or money order. He testified that she cashes her paychecks and pays the house note from the |4funds. He stated that only his checks are deposited into the joint account. He further stated that he shows no vehicle expenses because his company owns the vehicles that he and his wife drive, including a 2001 Nissan Titan truck with a $616 monthly note and a 2004 BMW 5301 with a monthly note of $963. Additionally, Washington testified that his wife owns a 2002 Ford Expedition that is paid for, which his family uses for personal business. Washington Capital Funding also pays the insurance for the vehicles which totals $335 per month.

Washington testified that he had been depositing business funds into his personal checking account through August 2004, when he employed a CPA who advised him to keep business and personal accounts separate.

Washington also testified that he pays $200 per month in child support for a child born prior to the two at issue in this case and that he pays $1,000 a month for tuition and child care for his two children he currently resides with. Washington stated that he has four credits cards with a balance of about $22,000. He stated that two are for personal expenses and the other two for business expenses although they are all in his name personally. He further testified that he has three lines of credit for both business and personal use. He stated that he owes about $55,000 on these accounts. Washington explained that he has taken several “cash advances” from his lines of credit and credit cards in order to get his business off the ground and, at times, to meet business expenses such as payroll.

We have reviewed the extensive documentary evidence including bank statements and tax returns. However, there was no evidence of the record of Washington’s credit card debt, which was provided after the trial. Nevertheless, jRthe trial court apparently reviewed documents pertaining to the debt and found them to be accurate.

The crux of Bazile’s arguments allege that the trial court manifestly erred in failing to find that Washington deflated his gross income.

Louisiana Revised Statute 9:315.1 states:

A. The guidelines set forth in this Part are to be used in any proceeding to establish or modify child support filed on or after October 1, 1989. There shall be a rebuttable presumption that the amount of child support obtained by use of the guidelines set forth in this Part is the proper amount of child support.
B. The court may deviate from the guidelines set forth in this Part if their application would not be in the best interest of the child or would be inequitable to the parties. The court shall give specific oral or written reasons for the deviation, including a finding as to the amount of support that would have been required under a mechanical application of the guidelines and the particular facts and circumstances that warranted a deviation from the guidelines. The reasons shall be made part of the record of the proceedings.

Louisiana Revised Statute 9:315.1(C) lists various considerations the trial court may undertake in deviating from the guidelines. “Since the enactment of the guidelines, a trial court’s discretion in setting the amount of child support is structured and limited.” Voorhies v. Voorhies, 96-342, p. 5 (La.App. 3 Cir. 10/9/96), 688 So.2d 1158, 1161. Unfortunately, we are unable to review this case because the record is inadequate. We have no idea what the trial court based its child support award on and whether, and in what amount, it deviated from the child support guidelines. We might assume that the trial court figured the child support figure based on Washington’s annual income of $48,000. We could further infer that he deviated from the child support guidelines due to Washington’s excessive debt. | fiHowever, the trial court’s own language, “If one is to accept,” leads us to question what exactly it did consider in formulating the child support award. Moreover, when a trial court deviates from the child support guidelines:

[T]he record must contain oral or written reasons for the deviation, which are supported by the evidence. Rushing v. Rushing, 93-1066 (La.App. 3 Cir. 4/6/94), 635 So.2d 610; Landos v. Lanclos, 614 So.2d 170 (La.App. 3 Cir.1993). Adequate reasons for deviating from the guidelines must include the trial court’s findings as to the amount of support that would have been required under a mechanical application of the guidelines!.]

McDaniel v. McDaniel, 95-1314 p. 8 (La. App. 3 Cir. 3/6/96), 670 So.2d 767, 772.

As we have previously mentioned, there is absolutely no documentary evidence of Washington’s debt in the record. There is nothing to indicate the means that the trial court used, i.e., the child support worksheet found in La.R.S. 9:315.20, or a recitation of the basic child support obligation pursuant to La.R.S. 9:315.19. For those reasons, we are unable to adequately review the record and we agree with Bazile’s fifth assignment of error. Relating to her other assignments of error, we address them as follows.

Spousal Income

Louisiana Revised Statute 9:315(C)(5)(c) states:

The court may also consider as income the benefits a party derives from expense-sharing or other sources; however, in determining the benefits of expense-sharing, the court shall not consider the income of another spouse, regardless of the legal regime under which the remarriage exists, except to the extent that such income is used directly to reduce the cost of a party’s actual expenses.

Bazile argues that Washington testified that his wife pays their house note of $1,417, which should have reduced the cost of his actual living expenses. We note that the article suggests that the trial court “may” consider evidence of reduced expenses |7based on expenses that the other spouse pays. The consideration of the second spouse’s income is within the trial court’s sound discretion. See Greene v. Greene, 93-789 (La.App. 3 Cir. 3/2/94), 634 So.2d 1286. Because the record is incomplete, we have no idea if the trial court considered that Washington’s expenses were reduced by his wife’s income.

Other Benefits

Louisiana Revised Statute 9:315(C)(3)(b) states that gross income means:

Expense reimbursement or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business, if the reimbursements or payments are significant and reduce the parent’s personal living expenses. Such payments include but are not limited to a company car, free housing, or reimbursed meals[.]

Bazile urges that the automobile payments, insurance, and gas that are paid by Washington’s company should have been included in the calculation of his gross income for the purpose of determining child support. Again, we have nothing before us to indicate whether the information was used in determining gross income for purposes of calculating child support.

Bank Statements

Next, Bazile urges that the trial court ignored Washington’s bank statements in which thousands of dollars were deposited monthly. We reviewed the bank statements which showed deposits totaling much more than the $4,000 in income that Washington claims. It appears the trial court found Washington’s testimony credible in that he was commingling business and personal funds for some time causing his personal checking account to appear to have much larger sums than |Rhis salary would allow. Monthly checking account statements and cancelled checks show numerous commission checks written to employees in the amounts of $3,000 to $5,000. While this does not appear to be manifestly erroneous, the trial court should consider this evidence along with the mass of other evidence in making its decision.

Real Estate

Finally, Bazile argues that the trial court erred in failing to include the sum of $8,000 as income for the sale of two pieces of real estate. Again, there is nothing in the record to suggest in what manner the trial court considered this temporary income and we are, therefore, unable to address it.

CONCLUSION

If, in its discretion, the trial court believes it has sufficient evidence from the original trial on the merits and can articulate its reasons for formulating a child support award deviating from the guidelines, then no further hearings are required. The trial court should prepare written reasons pursuant to the Articles set forth in this opinion. However, if the trial court decides it needs further information in order to determine the appropriate child support award, it may, on its own motion, order further proceedings before submitting its reasons. Accordingly, this case is remanded to the trial court to proceed as it sees fit consistent with the reasons set forth in this opinion. Costs of this appeal are assessed equally between the parties.

REMANDED.


text:
    Shirley LeBLANC, et al. v. ABC INSURANCE CO., et al.
    No. 06-157.
    Court of Appeal of Louisiana, Third Circuit.
    June 21, 2006.
    Kevin R. Rees, Abbeville, LA, for Plaintiffs/Appellees, Shirley LeBlanc, Tony Le-Blanc.
    Errol D. Deshotels, Deshotels, Mouser & Deshotels, Oberlin, LA, for Defendants/Appellees, Cindy Limes, Carol Davis.
    Frank M. Walker, Jr., Plauche, Smith & Nieset, Lake Charles, LA, for Defendants/Appellees, Louisiana Farm Bureau Mutual Ins. Co., Joann Carrier Chapman, Trudy Carrier Lafort.
    Brian Lee Coody, Stockwell, Sievert, Viccellio, Lake Charles, LA, for Defendant/Appellee, State Farm Fire & Casualty Co.
    Paul A. Holmes, Louisiana Municipal Association, Baton Rouge, LA, for Defendant/Appellant, City of Oberlin.
    Court composed of OSWALD A. DECUIR, GLENN B. GREMILLION, and J. DAVID PAINTER, Judges.
   GREMILLION, Judge.

hln this workers’ compensation intervention, the intervenors, the City of Oberlin and Louisiana Risk Management, Inc., appeal the judgment of the trial court awarding attorney’s fees and additional litigation expenses to the plaintiffs’ counsel. Oberlin argues that the total amount awarded, $59,208, exceeds the statutorily allowed amount of one-third of its recovery, $52,500. For the following reasons, we amend the trial court’s judgment.

FACTS

On April 17, 2000, the plaintiff, Shirleen LeBlanc, a meter-reader for Oberlin, was reading the meter of a home located at 504 East 9th Avenue in Oberlin. While doing so, a large branch from an Oak tree fell, striking her on the head and breaking her neck. As a result of this accident, Le-Blanc and her husband, Tony, individually and on behalf of their three children (referred to collectively as LeBlanc), filed suit against the owners and insurers of the residence where the accident occurred. Due to the uncertainty surrounding the ownership of the subject residence, Le-Blanc named numerous defendants as owner. She later amended the petition to add Farm Bureau Insurance Company, State Farm Insurance Company, and Allstate Insurance Company as defendants. Oberlin intervened in the suit asserting its right of reimbursement for workers’ compensation benefits paid on LeBlanc’s behalf.

Allstate and State Farm were dismissed from the suit via a partial dismissal and on motion for summary judgment, respectively. Thereafter, a settlement was reached between LeBlanc and Farm Bureau, Joann Carrier Chapman, and Cindy Carrier Limes in the amount of $157,500. A dispute arose between ^counsel for LeBlanc and Oberlin as to whether counsel for Le-Blanc should recover, in addition to one-third of the settlement amount in attorney’s fees ($52,500), an additional $6708 for court costs and related litigation expenses. The parties submitted the matter to the trial court in a Motion to Approve Settlement and Disburse Settlement Funds, after which it awarded counsel for LeBlanc $6708, in addition to $52,500. This appeal by Oberlin followed.

ISSUE

On appeal, Oberlin argues that the trial court erred in awarding counsel for Le-Blanc an amount in excess of the one-third of its recovery from the defendants, in contravention of La.R.S. 23:1103(C).

LA.R.S. 23:1103

Oberlin argues that the $59,208 awarded to LeBlanc’s counsel exceeds the one-third amount statutorily allowed in La.R.S. 23:1103(C). We agree.

Louisiana Revised Statute 23:1103(C)(1) provides with regard to attorney’s fees:

If either the employer or employee intervenes in the third party suit filed by the other, the intervenor shall only be responsible for a share of the reasonable legal fees and costs incurred by the attorney retained by the plaintiff, which portion shall not exceed one-third of the intervenor’s recovery for prejudgment payments or prejudgment damages. The amount of the portion of attorney fees shall be determined by the district court based on the proportionate services of the attorneys which benefit-ted or augmented the recovery from the third party. The employee as interve-nor shall not be responsible for the employer’s attorney fees attributable to postjudgment damages nor will the employer as intervenor be responsible for the attorney fees attributable to the credit given to the employer under Subsection A of this Section. Costs shall include taxable court costs as well as the fees of experts retained by the plaintiff. The pro rata share of the intervenor’s costs shall be based on in-tervenor’s recovery of prejudgment payments or prejudgment damages.

|s(Emphasis added).

Here, LeBlanc received $157,500 from the settlement. All of that amount went to Oberlin to reimburse it for workers’ compensation benefits paid to LeBlanc. Accordingly, counsel for LeBlanc could recover only one-third of that amount in attorney’s fees and related costs as allowed by La.R.S. 23:1103(C). See Tommie’s Novelty v. Velasco, 40,483 (La.App. 2 Cir. 3/8/06), 923 So.2d 936. Although LeBlanc’s argument is meritorious in that the outcome of this matter is unfair and may have a stifling effect on attorneys taking cases involving a workers’ compensation intervention, the wording of La.R.S. 23:1103(0(1) is clear, and we are statutorily bound by its limits. This is a problem to be resolved by the legislature, rather than by the courts.

Nor do we find that Theodile v. R.P.M. Pizza, Inc., 03-987 (La.App. 3 Cir. 2/4/04), 865 So.2d 980, applies in this instance, as that case failed to address La.R.S. 23:1103(C). The sole issue in that case was whether medical expenses and litigation costs advanced to the plaintiff by counsel “are a part of the attorney’s fee subject to the attorney’s lien.” Id. at 983. Accordingly, we amend the judgment of the trial court to reduce the amount of attorney’s fees awarded to LeBlanc’s counsel to $52,500.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is amended to reduce the amount of attorney’s fees and costs awarded to LeBlanc’s counsel to $52,500. The costs of this appeal are assessed to the plaintiffs-appellants, Shirleen |4and Tony LeBlanc, individually and on behalf of the estate of Lori, David, and Quinten Le-Blanc.

AFFIRMED AS AMENDED.


author: SAUNDERS, Judge.

text:
    Sean EDWARDS v. FORD MOTOR COMPANY.
    No. CA 06-101.
    Court of Appeal of Louisiana, Third Circuit.
    June 21, 2006.

      Neal Glen Johnson, Assistant District Attorney, Lafayette, LA, for Plaintiff/Ap-pellee, Sean Edwards.
    Robert William Maxwell, Hilliard Finch Kelly, Michael B. Alker, McCranie, Sis-trunk, Anzelmo, Hardy, Maxwell, & McDaniel, Covington, LA, for Defendant/Appellant, Ford Motor Company.
    Gregory Engelsman, Bolen, Parker & Brenner, Alexandria, LA, for Plaintiff/Ap-pellee, Sean Edwards.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   SAUNDERS, Judge.

| ¶ This litigation arises from an incident wherein a vehicle’s air bag unexpectedly deployed causing personal injuries. Suit was filed against the manufacturer of the vehicle, Ford Motor Company (hereinafter referred to as “Ford”), under the Louisiana Products Liability Act (hereinafter referred to as “LPLA”) for defective design and/or manufacture and inadequate warning. Plaintiff, Sean Edwards, also pled the doctrine of res ipsa loquitur. Judgment was rendered in favor of plaintiff on the basis of res ipsa loquitur. We reverse.

FACTS AND PROCEDURAL HISTORY

Plaintiff leased the vehicle in question, a 1999 Ford F-250 pick-up truck, on May 25, 1999. Prior to the incident on August 8, 1999, plaintiff experienced no technical problems, but did notice a burning odor. The vehicle was never examined by a Ford technician to determine the cause of the odor nor did plaintiff, an automobile mechanic, ever personally attempt to ascertain the cause of the odor.

Upon returning from a shopping trip, plaintiff dropped his wife off at their home then drove the vehicle to his shop on adjoining property. He exited the vehicle while it was still running to open the door to his shop and when he re-entered the vehicle and shut the door the air bag deployed. Plaintiff initially sought treatment at the emergency room of Riverland Medical Center. He then began seeing Dr. Chad Norton, whose treatment lasted a few weeks, and contacted an attorney. Plaintiffs attorney recommended that he have the vehicle inspected by an expert and Mr. Edwards brought it to Charles Smith. The vehicle was then towed to a repair shop in Monroe for further inspection. When the towing company arrived, the dash of the subject vehicle caught fire. The fire was extinguished with a soft drink and the vehicle was transported.

| ¡¿Plaintiff filed suit under the LPLA and also pled the doctrine of res ipsa loquitur, At the close of plaintiffs case, Ford moved for a directed verdict arguing that liability had not been established pursuant to the LPLA. Plaintiff effectively abandoned his claims under the LPLA and argued only that res ipsa loquitur barred dismissal of the action. The trial court took Ford’s motion under advisement until the conclusion of the trial at which time the motion was denied and judgment rendered on plaintiffs behalf. The basis of the judgment was the doctrine of res ipsa loquitur. Ford then timely filed this appeal.

ASSIGNMENT OF ERROR

The trial court erred in rendering Judgment against Ford Motor Company where plaintiff/appellee, Sean Edwards, failed to prove Ford Motor Company’s product was defective under the Louisiana Products Liability Act.

STANDARD OF REVIEW

A trial judge’s findings of fact will not be disturbed unless they are manifestly erroneous or clearly wrong. Stobart v. State, through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). “Absent ‘manifest error’ or unless it is ‘clearly wrong,’ the jury or trial court’s findings of fact may not be disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La.1990). “If the trial court or jury’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.” Id. at 1112.

Issues regarding the sufficiency of evidence are legal in nature. Darbonne v. Wal-Mart Stores, Inc., 00-551 (La.App. 3 Cir. 11/2/00), 774 So.2d 1022; Fauntleroy v. Rainbow Marketers, 04-926 (La.App. 3 Cir. 11/10/04), 888 So.2d 1045. When reviewing questions of law, appellate courts are to determine if the trial court’s ruling was legally correct or not. Cleland v. City of Lake Charles, 02-0805, 01-1463 (La.App. 3 Cir. 3/5/03), 840 So.2d 686, writ denieds, 03-1380, 03-1385 (La.9/19/03), 853 So.2d 644, 645.

DISCUSSION

When discussing plaintiffs burden under the doctrine of res ipsa loquitur, the trial court determined that it is not “necessary to rule out all other reasonable explanations or evidence to the contrary ...” This statement reflects adherence to our decision in Lawson v. Mitsubishi Motor Sales Am., Inc., 04-839 (La.App. 3 Cir. 12/29/04), 896 So.2d 149, writ granted 05-0257 (La.4/29/05), 901 So.2d 1044, which was heavily relied upon by plaintiff both here and below. In Lawson, a vehicle’s air bag was deployed when the driver honked her horn and we employed res ipsa loquitur. Lawson, however, is distinguishable from the case at bar. In that case, the plaintiff presented significant expert testimony from an engineer regarding the “forensic analysis of electronic component vehicle controls and failure analysis of air bag systems.” Id. at 154. Furthermore, the expert in Lawson presented a specific theory attributing the air bag deployment to a clock malfunction. Plaintiff here did not present evidence of the same caliber as that presented in Lawson. This disparity in evidence and the lack of a plausible theory by plaintiff are the distinguishing characteristics and require a finding that the principles espoused in Lawson were not properly applied here.

We agree that plaintiff need not rule out each and every possible theory, for so requiring would render the doctrine of res ipsa loquitur meaningless. We do, however, find that plausible, well-developed theories absolving a defendant of liability must be addressed or alternative theories proposed. For to do otherwise is Rto ignore the elephant in the living room and grant recovery for simply experiencing a strange accident. This is not the purpose of res ipsa loquitur. That doctrine is a vehicle by which negligence may be inferred, not a sword that blindly carves out a recovery. Plaintiff failed to offer direct evidence or plausible theories in contradiction of defendant’s largely un-contradicted explanation in the instant matter. We will first address the evidence offered by defendant.

Ford manufactured approximately 600,-000 F-Series trucks in 1999 and the vehicle at issue here represents the only instance of spontaneous air bag deployment. Defendant also introduced uncontradicted evidence indicating that the air bag did not deploy because of its negligence. Michael Nranian, a design analysis engineer for Ford, specializing in air design/manufacture and electrical systems, testified that, when he examined the vehicle at issue, a large amperage fuse was missing from a fuse panel. The air bag’s power system runs through the same missing fuse. Mr. Nranian also noted that the vehicle had been tampered with. Specifically, he testified that a wire or some other object was inserted into the fuse panel where the missing fuse should have been located in order to power an aftermarket accessory. Accordingly, he concluded that the fuse panel providing power to the air bag system was overloaded. Air bag deployment, according to Mr. Nranian, is one of many possible results of tampering with the system in this manner.

Defendant also offered the testimony of Larry Helton, an expert in fire cause and origin. Mr. Helton corroborated Mr. Nra-nian’s testimony regarding aftermarket alterations to the fuse panel. He testified that fuses, such as the one missing from the subject vehicle, are often removed by vehicle owners to wire radios or other electronic equipment. Mr. Helton stated that these alterations damage the entire 1 fielectrical system of the vehicle and present fire hazards. Noting the charring of the wires in the area of the missing fuse, he determined that aftermarket alterations caused the wires to overheat possibly resulting in the air bag deployment.

Plaintiff relied upon the testimony of Charles Smith, a construction worker who previously worked as a mechanic and whose expertise related to transmissions and engines, to establish that the defect in the air bag system was attributable to defendant. Mr. Smith testified that he pulled the cover off a box on the vehicle’s steering column, noticed burned wires, concluded they were the source of the problem and replaced the cover of the box. He did not track the route of the burned wires or even examine the air bag system. On cross examination, Mr. Smith testified that he has no knowledge regarding air bag design and could not identify any manufacturing defect. Furthermore, his testimony was contradicted by that of defendant’s experts. Mr. Nranian testified that the wires referred to by Mr. Smith are not connected to the air bag system. Mr. Helton testified that the “shorted” wires that caused the air bag to deploy according to Mr. Smith were not shorted at all. He stated that the wires were exposed to an external heat source and did not exhibit any defining characteristics of internal malfunctions.

After reviewing the record, we find that no evidence exists indicating a specific defect in the vehicle when it left defendant’s control. We further find that the evidence does not support an inference of negligence on defendant’s part. Accordingly, we reverse the judgment of the trial court.

^CONCLUSION

The judgment of the trial court is reversed. Costs of this appeal are assessed to plaintiff.

REVERSED.


author: THIBODEAUX, Chief Judge.

text:
    Linda HUNTER v. ALLIANCE COMPRESSORS.
    No. 06-100.
    Court of Appeal of Louisiana, Third Circuit.
    June 21, 2006.

      George Arthur Flournoy, Flournoy & Doggett, Alexandria, LA, for Plaintiff/Ap-pellee, Linda Hunter.
    Mark Alan Watson, Stafford, Stewart, & Potter, Alexandria, LA, for Defendant/Appellant, Alliance Compressors.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   THIBODEAUX, Chief Judge.

| ¶ Defendant-appellant, Alliance Compressors, Inc. (Alliance), seeks a reversal of the portion of the Office of Workers’ Compensation (OWC) judgment which granted to the plaintiff-appellee, Linda Hunter (Ms. Hunter), supplemental earnings benefits and penalties for Alliance’s failure to tender those benefits. Alliance also appeals the award to Ms. Hunter of medical benefits for the evaluation and treatment of her cervical injuries by Drs. Carl Goodman and Marco Ramos, as well as the assessment of penalties for Alliance’s failure to initially authorize the medical evaluations and treatment. Ms. Hunter has answered the appeal, seeking a reversal of the OWC’s denial of her request for reimbursement of her mental health treatment expenses. She also seeks a reversal of the court’s denial of her claim for penalties for Alliance’s alleged late payment of a medical bill. Finally, she seeks additional attorney fees for the work performed by her attorney on this appeal.

For the following reasons, the judgment of the OWC is affirmed. Ms. Hunter is granted additional attorney fees in the amount of $2,500.00 for work performed on this appeal.

I.

ISSUES

Alliance’s Issues

1. Did Ms. Hunter opt for a voluntary lay-off, thus making her ineligible for supplemental earnings benefits during the lay-off period?
2. Did the OWC err in assessing penalties to Alliance for its failure to pay Ms. Hunter any supplemental earnings benefits during the lay-off period?
3. Did Ms. Hunter sufficiently establish that her cervical injury was caused by her work accident?
| ¡>4. Was it erroneous to assess penalties to Alliance for its initial failure to authorize evaluation and treatment for the cervical injury?

Ms. Hunter’s Issues

1. Did the OWC err in failing to order the payment for mental health treatment rendered by clinical psychologist, Dr. Ben Arnold?
2. Did the OWC err in failing to assess a penalty to Alliance for the alleged late payment of Dr. Sandifer’s December 16, 2002 bill?
3. Is Ms. Hunter entitled to an additional award of attorney fees for this appeal?

II.

FACTUAL BACKGROUND

Plaintiff-appellee, Ms. Hunter, was employed at Alliance Compressors as a full-time employee. She worked the weekend shift, which consisted of Fridays, Saturdays and Sundays. Ms. Hunter was employed in the assembly department, performing general labor, assembly-line work. It is undisputed that she suffered a job-related injury on November 30, 2002, during the process of attempting to remove a pin stuck in a machine she was using. Ms. Hunter was jerked when the machine unexpectedly moved, injuring her left shoulder and arm, as well as her neck. When she was jerked by the machine, she also stated that she heard her shoulder “pop.”

The particular injuries caused by the accident soon became the subject of a dispute. Ms. Hunter initially sought workers’ compensation benefits from her employer on May 5, 2003; however, they were denied. In that disputed claim, she stated that her left arm and shoulder were injured. The claim was amended on November 4, 2004, to reflect injuries to the following parts of the body: left shoulder, left arm, left hand, and neck.

l aMedical Treatment and the Onset of Symptoms

The Alliance accident report, completed on the day of the accident, describes Ms. Hunter’s complaint as “shoulder pain.” The company’s first responder report, which was also completed on the day of the accident, states, “[wjears wrist brace from previous injury. Feels burning in wrist radiating up to shoulder. Can’t raise left arm without pain.” She received medical treatment that day at the Natchitoches Parish Hospital Emergency Room. The patient registration form states the reason for the visit as “pain in left shoulder and wrist.” After an x-ray was taken, the clinical impression resulting from that visit was left shoulder pain, left wrist pain, and a contusion on the left middle Anger. Ms. Hunter was discharged home with a prescription for anti-inflammatory and pain medication, a two-day work excuse, and directions to return if the conditions worsened.

Ms. Hunter returned to work two days later on December 2, 2002. Over the course of the following months, she sought treatment with several physicians to address her continued complaints of left arm and shoulder pain, right shoulder pain, pain in both wrists, and eventually, for the onset of swelling and pain in the neck area.

On December 3, 2002, Ms. Hunter sought treatment from internist, Dr. Mary Long, her primary care physician. She was initially evaluated for pain in the left shoulder and both wrists. Dr. Long diagnosed carpal tunnel syndrome, prescribed anti-inflammatory medication, ordered an electromyography (EMG), and recommended that she be placed on a “desk duty restriction” at work.

Alliance re-assigned Ms. Hunter to a light-duty job referred to as “bolts and sleeves,” which was a sedentary position that required her to slide .08-ounce bolts into one-ounce, metal sleeves. She assembled one bolt and sleeve at a time, piling up |4the assembled pieces in boxes at her work station. The record reflects that she was not required to lift any of the boxes of the unassembled pieces or the completed pieces or do any lifting beyond her restrictions.

On December 5, 2002, Ms. Hunter underwent the EMG ordered by Dr. Long. It was conducted by Dr. Stephen Wheat, an internal medicine physician who also specializes in physical medicine and rehabilitation. Ms. Hunter complained to him of bilateral shoulder pain ánd pain in both of her wrists. The EMG did not reveal any positive findings in either of the bilateral, upper extremities. Dr. Wheat then ordered an MRI, which revealed a partial tear in the left shoulder rotator cuff. Ultimately, he diagnosed rotator cuff disease, bilateral carpal tunnel syndrome, and bilateral lower extremity parasthesias, i.e., numbness and tingling.

As a result of these results and Ms. Hunter’s continued complaints of bilateral shoulder and wrist pain, Dr. Long, during her follow-up evaluation on December 12, 2002, referred Ms. Hunter to orthopedic surgeon, Dr. John Sandifer. Also, in her second report to Alliance of this examination of Ms. Hunter, Dr. Long extended her recommendation for “desk duty work.”

On December 16, 2002, Ms. Hunter met with Dr. Sandifer for her initial orthopedic evaluation. He also diagnosed bilateral carpal tunnel syndrome but concluded that she was suffering from a strain with tendonitis in the left shoulder. He provided left shoulder and left wrist cortisone injections and recommended a “very light duty” work restriction with a “very limited use of the left upper extremity.” He also ordered a three-week follow-up appointment. This information was provided to Alliance as well.

1 zThe Commencement of the Neck Complaints

Prior to her three-week follow-up visit with Dr. Sandifer, Ms. Hunter had two follow-up exams with Dr. Long. On December 19, 2002, Dr. Long noted no improvement in Ms. Hunter’s condition. On December 23, 2002, which was approximately three weeks after the accident, Ms. Hunter returned to Dr. Long, and for the first time added swelling around the neck to her list of complaints. She advised Dr. Long that' the swelling began while she was at work during the immediately preceding wefekend. Dr. Long conservatively treated Ms. Hunter with medication in response to these complaints. She was not evaluated by Dr. Long for her 'Shoulder, wrist or neck problems again until March 2004.

Ms. Hunter, instead, continued her treatment with Dr. Sandifer. His report of his next follow-up evaluation with Ms. Hunter on December 30, 2002, however, did not contain any mention or observation of complaints of neck pain or swelling. His records show that the only change in her condition was a subsidence in the numbness in her left wrist. Dr. Sandifer, accordingly, prescribed three weeks of physical therapy, three times per week. He also provided specific work restrictions of no overhead lifting with the left arm. He restricted shoulder-level lifting to two pounds, and advised against any repetitive pushing or pulling or repetitive wrist flex-ion/extension activities. A three-week follow-up evaluation was scheduled.

Notably, the record reflects that on January 11, 2003, a few days prior to returning for her scheduled follow-up visit with Dr. Sandifer, Ms. Hunter sought out medical treatment at work for neck pain and swelling, along with right wrist and shoulder pain. While performing bolts and sleeves assembly work, she reported experiencing a sharp pain in her wrist, shoulder, and neck after opening a box of sleeves and attempting to remove a bag of sleeves from the box.

|(;Dr. Sandifer’s record of the January 13, 2003, follow-up visit reflects, for the first time, noticeable swelling on the right side of Ms. Hunter’s neck and right tra-pezius muscle area. He also noted that she stated that the swelling became apparent while assembling bolts and sleeves at work. This time, he prescribed physical therapy treatment to focus on the areas of inflammation, ordered her to continue taking her prescribed medications, and recommended that she continue to abide by the light-duty work restrictions.

Dr. Sandifer’s next report of his January 27, 2003, evaluation of Ms. Hunter noted that she reported significant improvement in the left shoulder as a result of the focused physical therapy; however, he wrote that she still complained of increased swelling in the right trapezius muscle area. During her next follow-up visits with Dr. Sandifer on February 17, 2003 and March 17, 2003, Ms. Hunter’s symptoms remained the same.

After the March 17, 2003, office visit, Dr. Sandifer provided Alliance with approval for Ms. Hunter’s movement from the bolts and sleeves job to another assembly job — the orbit form job — which he described as being “very, light duty.” Despite the fact that Ms. Hunter was scheduled for a six-week follow up examination, she returned the following week, on March 24, 2003, complaining about his approval of the orbit form job. Although he maintained his approval of the suitability of the job for her, he reiterated in his report that this placement should take place on a trial basis.

On April 7, 2003, Dr. Sandifer again noted continued swelling in Ms. Hunter’s shoulder areas and the area of the trapezi-us muscle. The bilateral carpal tunnel syndrome was also unresolved. Ms. Hunter’s prescribed medications were continued, but this time, her job restrictions were increased to include no overhead lifting at all, a limitation of five pounds of shoulder-level lifting, and no repetitive [7pushing or pulling of more than five pounds. He also stated that she could not perform any repetitive wrist flexion/extension activities because of the carpal tunnel syndrome. This job restriction change was reported to Alliance. Ms. Hunter was not evaluated again by Dr. Sandifer until June 6, 2003.

During this gap in treatment with Dr. Sandifer, Ms. Hunter began treating with another orthopedic surgeon, Dr. Baer Rambach. At her first appointment with him on April 10, 2003, she listed her chief complaints as pain and swelling in the left wrist, left shoulder, back of neck and right shoulder. She complained to him of the recent job placement change at Alliance from bolts and sleeves assembly to orbit form assembly, which she described as being more repetitious and causing even more irritation to her neck, shoulders and upper extremities than the bolts and sleeves assembly job.

After an examination, Dr. Rambach diagnosed a rotator cuff tear, which he stated might require surgical repair. The tear, he opined, was secondary to trauma. He also stated that the left shoulder symptoms were likely associated with impingement syndrome and a probable unstable acromioclavicular (AC) joint of the left shoulder girdle, as well as tendonitis. In addition, he diagnosed bilateral carpal tunnel syndrome, finding it worse in the left wrist than the right. He regarded the neck injury as myoligamentous and myo-fascial sprains and strains to the cervical spine area. He stated that he did not detect any mechanical nerve root compression signs indicative of a herniated inter-vertebral disc in the cervical spine area. He also recommended that Ms. Hunter be placed back on her previous job assembling bolts and sleeves due to the increased aggravation the orbit form job appeared to be causing her.

During the next follow-up appointment on May 1, 2003, Dr. Rambach found no change in Ms. Hunter’s status. He felt that surgical intervention was not yet | Rneeded, recommended another round of physical therapy, and again recommended that Ms. Hunter remain on the bolts and sleeves job at Alliance. A two-month follow-up appointment was scheduled.

The Lay-Off

In the meantime, Ms. Hunter was laid-off from Alliance. According to the record, Alliance underwent a seasonal shutdown of its weekend assembly shift on May 25, 2003, with a pre-scheduled, tentative restart date. Alliance’s records reflect that Ms. Hunter opted for the voluntary lay-off that was offered to all of the full-time, weekend-shift employees. She received unemployment benefits during the lay-off period, beginning the week ending July 5, 2003.

During this lay-off period, Ms. Hunter continued to be regularly evaluated for her complaints. Although she did not work during her period of being laid-off, her symptoms never steadily improved. As of May 25th, approximately six months after the accident, she still showed no significant or steady improvement. Her next visit with Dr. Sandifer on June 6, 2003, reflected this as well as her next July 14, 2003, appointment with Dr. Rambach. July 14, 2003 was the date of Dr. Ram-bach’s last evaluation of Ms. Hunter, due to his impending retirement; however, as a result of that evaluation, he concluded that Ms. Hunter had reached an impasse and was not medically improving, and recommended that she seek specialty treatment and evaluation with a colleague in his medical group who specialized in diseases and injuries of the shoulder. In his report, he opined that arthroscopic evaluation and treatment of the left shoulder would be needed to achieve any improvement in that condition.

Ms. Hunter complained of muscle spasms in the area of the right side of her neck and bilateral wrist pain during her visit to Dr. Sandifer on July 16, 2003. |9Her medications were adjusted in response. In his subsequent evaluation of Ms. Hunter on August 26, 2003, Dr. Sandi-fer saw some improvement in the carpal tunnel syndrome, but none in the left shoulder; her complaints were otherwise the same. He maintained that surgical intervention for the shoulder was not definitively needed at that time, and again advised Ms. Hunter to continue her medications and to follow-up with him in six weeks. That follow-up appointment occurred on November 18, 2003, and resulted in findings of continued, unresolved bilateral shoulder problems, swelling on the left side of the neck, and carpal tunnel syndrome. Because there was no improvement in her condition during this time away from work, Dr. Sandifer noted in his office report his awareness of her approaching deadline to return to work. He consequently reported that, upon returning to work, she should be placed on very light-duty work activities that would mainly require use of her right arm. Again, he stated that she was not a good candidate for surgery.

When Ms. Hunter was recalled by Alliance, approximately six months had passed since the shutdown of her work shift and a year had passed since the accident. She reported back to work on December 12, 2003. She was reinstated to her Ml-time position in the assembly department, assembling bolts and sleeves. Her medical condition remained unimproved, according to January 7, 2004 and February 11, 2004 reports by Dr. Sandifer.

Complaints of Depression

Ms. Hunter consulted with a counseling psychologist, Dr. Ben Arnold, to address her complaints of depression. She met with Dr. Arnold only two times: March 9, 2004 and April 6, 2004. She failed to appear for her appointment on May |in4, 2004. His brief records consist, in relevant part, of Ms. Hunter’s recounting of her work accident and her history of medical treatment since the accident. She also talked with him about her perceived physical limitations, which, she stated, had negatively affected her home and social life. She attributed two separations from her husband to her injuries, and stated that she felt isolated, irritated, helpless, suffered sleep problems, and had resumed smoking and drinking, after a seven-year period of not doing so. Dr. Arnold’s records do not expressly reflect that he ever rendered a diagnosis, but do contain his notes regarding providing her with information on relaxation techniques that he wanted her to utilize. This, along with the “talk therapy,” as recorded in his records, was the extent of his treatment of Ms. Hunter.

During this time, Ms. Hunter was also receiving treatment from Dr. Long for her complaints of depression. Specifically, Dr. Long’s March 1, 2004, notes state that although there was no change in Ms. Hunter’s prior physical complaints, she also appeared for the visit, seeking treatment for stress, anxiety and depression. Dr. Long prescribed Lexapro, an anti-anxiety/anti-depressant medication. During that visit, Dr. Long also adjusted her pain and anti-inflammatory medications and scheduled an MRI of Ms. Hunter’s neck. Regarding work restrictions, she advised Ms. Hunter to continue with her current light-duty job placement.

The Cervical Spine Findings

The MRI of the cervical spine was taken on March 4, 2004, and showed a moderate disc herniation at C5-6, with significant nerve impingement and minimal disc protrusion noted at C4-5. After receiving these results, Dr. Long referred Ms. Hunter to orthopedic surgeon, Dr. Carl Goodman, who specializes in spinal injuries and diseases. However, treatment by Dr. Goodman was never approved by Alliance. Alliance rejected the contention that the cervical injury was related to the November ln2002 work accident. On March 12, 2004, based upon the findings of the MRI report, Ms. Hunter was advised by human resource personnel at Alliance to take a leave from work due to her condition. She was told to apply for Family and Medical Leave benefits and short-term disability benefits. Ms. Hunter was ultimately denied those benefits because of her failure to submit the necessary paperwork within the deadline required.

Ms. Hunter continued to see Dr. Sandi-fer. He was provided with the MRI report. In his report of their March 24, 2004, office visit, he again noted his uncertainty of her candidacy for any type of surgery. He advocated the continued conservative medical treatment, but stated that a worsening of her symptoms would justify a neurosurgery consultation. He also concluded that Ms. Hunter could not return to her current employment at Alliance because of her condition.

Although she was no longer working, Ms. Hunter continued to experience swelling around the neck and in the trapezius muscle, coupled with pain. As of April 13, 2004, Dr. Sandifer continued to doubt Ms. Hunter’s suitability for surgery, and restarted shoulder injections to treat her symptoms. She returned to him on May 21, 2004, with “a lot of swelling around her neck,” according to his notes, with pain radiating down into her right arm and tingling in the right wrist. Dr. Sandifer, noting the possibility of a herniated disc on the left side, referred her to neurosurgeon, Dr. Marco Ramos.

Dr. Ramos evaluated Ms. Hunter on June 28, 2004, and diagnosed manifestations of cervical radiculopathy at C5-6 and C6-7, based on the March 5, 2004, MRI of the cervical spine and his examination of Ms. Hunter. He recommended a micro-discectomy at C5-6 and C6-7, and a C6 corpectomy and strut fusion with instrumentation.

h Shoulder and Cervical Spine Surgery Recommendations

During his next evaluation of Ms. Hunter on July 19, 2004, Dr. Sandifer agreed with a recommendation for left shoulder surgery, purportedly recommended by Dr. Atchison, finally concluding that she had received an adequate trial of conservative treatment. He noted awareness of Dr. Ramos’ recommendation for left wrist surgery and cervical surgery as well, but questioned in his notes whether Ms. Hunter’s symptoms were predominately neck or shoulder-related.

As a result of these surgical recommendations, Ms. Hunter’s attorney contacted Alliance’s workers’ compensation adjuster by letter on July 22, 2004, requesting that the surgeries be approved. On August 30, 2004, Alliance’s counsel requested the medical records to evaluate the surgical requests, and sent notice of receipt of those records in early and mid-September of 2004.

Nevertheless, the surgeries were never approved. Ms. Hunter has continued with conservative treatment in the form of medications and cortisone injections for her continued complaints of bilateral shoulder and neck pain, swelling in those areas, and carpal tunnel syndrome. The record reflects her continuing treatment with Dr. Sandifer in two-month increments from October 12, 2004, through February 16, 2005. Significantly, Dr. Sandifer noted in his report of January 10, 2005, that Ms. Hunter would likely need surgery on both the left shoulder and the cervical spine. He repeated this sentiment in his report of February 16, 2005. Alliance commenced payment of indemnity benefits after January 10, 2005, upon receiving Dr. Sandifer’s statement that surgery would be needed.

_Jj¿The OWC’s Rulings

After the trial of this matter, the workers’ compensation judge rendered oral reasons for ruling and a subsequent judgment, in which he found that Ms. Hunter was entitled to SEB at the rate of $213.44, with legal interest from the due date, for the period of May 25, 2003 through July 5, 2003, which was the time prior to the commencement of her unemployment benefits. In addition, the court ordered that Ms. Hunter receive temporary total disability benefits at the rate of $275.00 per week from March 13, 2004, to continue in accord with La.R.S. 23:1221(1), with legal interest from the due date, less a credit for all indemnity payments made by Alliance after January 10, 2005. The court also ordered that Alliance provide Ms. Hunter with all reasonable and necessary medical treatment for her neck, shoulder, wrist, and hand injuries/conditions, including the recommended shoulder, hand and cervical spine surgeries.

The OWC also awarded penalties in the amount of $2,000.00, pursuant to La.R.S. 23:1201(F), for Alliance’s failure to pay SEB after the commencement of the May 25, 2003, lay-off. Alliance was also assessed $8,000.00 in penalties, pursuant to La.R.S. 23:1201(F), for the post-August 15, 2003, violations, which included: failure to authorize Dr. Goodman’s evaluation; failure to pay benefits after March 5, 2004; failure to pay benefits at the correct rate; and, failure to authorize the recommended neck surgery, with legal interest from the date of judgment. Ms. Hunter’s request for reimbursement of medical treatment rendered by psychologist, Dr. Ben Arnold, was disallowed; however, she was awarded $10,000.00 in attorney fees, with interest from the date of judgment.

_bHI.

LAW AND ARGUMENT

Entitlement to Supplemental Earnings Beneftts

Alliance argues that the OWC committed error when it found that Ms. Hunter was entitled to supplemental earnings benefits (SEB) for the weeks of the lay-off period that she did not receive unemployment compensation benefits (May 25, 2003 through July 5, 2003). The company states that Ms. Hunter failed to establish at trial her entitlement to SEB. Specifically, it argues that she was not entitled to SEB because she declined available, alternative employment opportunities with Alliance and instead, chose to be laid-off and to receive unemployment benefits during the shutdown period. Alliance argues that under those circumstances, she was not entitled to SEB for any period of the layoff.

Ms. Hunter contends, however, that at the commencement of the lay-off period, she was still bound by light-duty work restrictions and was not provided knowledge that any such positions would be available for her to work during the shutdown. As a result, she claims that she was effectively denied the option of continuing to work.

Entitlement to SEB is based upon an employee sustaining a work-related injury that results in the inability to earn 90 percent or more of his or her average pre-injury wage. La.R.S. 23:1221(3)(a). According to the supreme court, “[t]he purpose of SEBs is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident.” Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840, p. 8 (La.7/1/97), 696 So.2d 551, 556 (quoting Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52, 55 (La.1993)). The burden of proving entitlement to SEB initially rests with the injured worker who must establish, by a preponderance of the evidence, that his or her injury resulted in the inability to earn those wages. Id.

As was noted by the workers’ compensation judge in his oral reasons for ruling, the parties stipulated that Ms. Hunter suffered a work-related injury. In addition, although Ms. Hunter continued to work after her injury until the temporary shutdown of her work-shift went into effect, her medical records clearly indicate that her treating physicians recommended that she be placed on a light-duty work restriction within a few days of the accident. The first restriction was recommended by Dr. Long on December 3, 2002, followed by the more specific limited-duty restriction recommended by Dr. Sandifer on December 16, 2002. Ms. Hunter worked under this light-duty restriction until the May 25, 2003, lay-off date. Accordingly, the record is clear that because of her injuries, it was medically recommended that she not perform any tasks that did not fall within her light-duty restrictions.

Although Alliance claims that Ms. Hunter’s lay-off was voluntary because she had the opportunity to “bid” on upcoming, vacant positions, as did all the other full-time workers on her shift who were facing being laid-off, there is no evidence in the record of her being advised of the availability of any jobs in the bid pool that met her light-duty work restrictions. The supreme court stated in Banks, 696 So.2d at 557, that the employer may satisfy the burden of proving job availability by establishing with competent evidence, at a minimum, the following:

(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 the claimant received notification of the job’s existence.
|1fiBy ‘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.

Applying this standard, we find that the OWC did not manifestly err in determining that Ms. Hunter was entitled to SEB for the period of the lay-off that she was not receiving unemployment benefits. The record shows that Ms. Hunter carried her burden of establishing a prima facie case of entitlement to SEB. She did so by establishing a work-related injury and the inability to earn 90 percent of her average weekly pre-injury wage when her current position was temporarily eliminated due to the company lay-offs. Alliance, in turn, failed to successfully counter this assertion of entitlement to SEB. It failed because it did not satisfy its burden of establishing that a suitable job was available for her in their respective communities or in showing that a job had been offered to her that she was capable of performing. Banks, 696 So.2d 551.

Having found that Ms. Hunter was in fact entitled to SEB, we turn now to whether the OWC erred in assessing to Alliance a $2,000.00 penalty for its failure to pay those benefits. The failure to pay SEB, according to La.R.S. 23:1201(F), “shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid.... ” The fifty dollars per calendar day penalty is limited to a maximum of two thousand dollars in the aggregate for any claim. La.R.S. 23:1201(F). The penalty for such a violation, consequently, must be assessed unless the employer reasonably controverts the employee’s claim or proves that it had no control over the nonpayment. La.R.S. 1i723:1201(F)(2); see also, Bradley v. ConAgra Poultry Co., 03-0023 (La.App. 3 Cir. 4/30/03), 843 So.2d 1255.

In this case, there is no assertion made that Alliance had no control over the nonpayment. Rather, Alliance has consistently asserted that it failed to pay the requested indemnity benefits because Ms. Hunter could have continued to work in a position at Alliance within her job restrictions until her regular shift was reinstated. Our focus, therefore, is on whether Ms. Hunter’s claim for benefits was reasonably controverted such that Alliance was justifiable in not making the SEB payments.

An injured worker’s claim is considered reasonably controverted when a court determines that the employer or insurer has not engaged in a frivolous legal dispute or that the employer or insurer possessed factual and/or medical information sufficient to reasonably counter that presented by the injured worker. See Bradley, 843 So.2d 1255 (citing Brown v. Texas-LA Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885). In this case, there is no proof in the record that Alliance offered a light-duty job to Ms. Hunter to work during the lay-off period. In addition, Alliance did not present at the trial any medical or factual information to reasonably counter the medical information that supported Ms. Hunter’s light-duty work restrictions that were in effect at the time. Therefore, there was no contradictory proof presented by Alliance, which demonstrated Ms. Hunter’s capability of working any jobs that did not fall within her light-duty restrictions and that were perhaps being made available to all the workers on her shift. We, therefore, find that Alliance did not reasonably controvert the claim for SEB and agree with the OWC’s assessment of the $2,000.00 penalty for failure to pay SEB from May 25, 2003 through July 5, 2003.

|18/s the Neck Injury Related to the Work Accident?

On appeal, Alliance argues that the OWC committed error when it found that Ms. Hunter’s cervical injury was caused by the work accident, and further erred when it assessed to Alliance a penalty of $2,000.00 for its initial termination of medical benefits for evaluation and surgical treatment of the cervical injury. Alliance makes much of the fact that Ms. Hunter did not immediately complain of a neck injury or seek any treatment for symptoms associated with her neck until, it alleges, nearly six weeks after the accident, during a January 13, 2003, office visit with Dr. Sandifer. It argues that because of this gap in time from the date of the accident and her seeking medical treatment for the injury, Ms. Hunter is not entitled to a presumption that the injury was work-related. Alliance, consequently, asserts that proof of a work-related cervical condition rests solely on Ms. Hunter’s self-serving testimony which, under the facts of this case, is insufficient to establish the causal connection. Alliance relies on Duhon v. Scurlock Permian, 01-0406 (La.App. 3 Cir. 10/03/01), 796 So.2d 822, writ denied, 01-2971 (La.1/25/02), 807 So.2d 842, for this contention. It argues that in Duhon, this court stated that the plaintiffs uncorroborated testimony of an injury can be accepted only if there is no other evidence casting serious doubt on the worker’s version of the incident and the worker’s testimony is corroborated by circumstances following the accident.

Ms. Hunter, on the other hand, essentially argues that the neck injury was caused by the accident, but the onset of the symptoms that she was able to relate directly to her neck, was gradual. In addition, she contends that her medical records reflect regular treatment for pain and objectively noted swelling in the neck area and a subsequent diagnosis of muscle trauma as well as cervical disc problems. Accordingly, she contends that the injury is work-related and falls under the purview of workers’ compensation.

|19In order to establish a claim for workers’ compensation benefits, the injured worker bears the burden of establishing, by a preponderance of the evidence, that an accident occurred during the course and scope of employment, that the accident caused the worker’s injuries, and that the injury caused the worker’s disabilities. Hilts v. Wal-Mart Stores, Inc., 02-1440 (La.App. 3 Cir. 4/2/03), 842 So.2d 465, writ denied, 03-1258 (La.9/5/03), 852 So.2d 1036. In this case, the occurrence of a work-related accident has been established. The issue of causation, however, remains.

Causation issues are questions of fact, and findings on causation by the OWC are subject to the manifest error standard of review. Edwards v. Sawyer Indus. Plastics, Inc., 99-2676 (La.6/30/00), 765 So.2d 328. Accordingly, based on this record, we cannot say that the OWC was unreasonable in finding that the cervical injury was caused by the work accident.

As recounted earlier in this opinion, the record contains evidence of consistent treatment after the accident by various doctors to address symptoms of pain and objectively-detected swelling and muscle spasms on or around Ms. Hunter’s neck. Treatment for these symptoms began on December 23, 2002, within a month of the accident, during an office visit with Dr. Long. Then on April 23, 2003, Ms. Hunter was diagnosed with having suffered myo-ligamentous and myofascial sprains and strains to the cervical spine area. She was experiencing spasms in the right side of her neck in July of 2003 as documented by Dr. Sandifer. The record also shows that because this long course of conservative treatment for these symptoms was unsuccessful, Dr. Long decided to further investigate, and ordered an MRI of the cervical spine in March 2004 (the focus of the first MRI was the bilateral upper extremities). The diagnosis of the disc abnormalities followed. Accordingly, we doj^not find that Ms. Hunter’s complaints of experiencing a neck injury at work are based only on her own testimony.

On the other hand, Alliance only relies on the date of the purported onset of Ms. Hunter’s complaints as a basis for denying that the cervical injury could have been caused by'the work accident and as its basis for denying compensation benefits for treatment of the injury. This is insufficient to reasonably counter the factual and medical information provided by Ms. Hunter. See Tillmon v. Thrasher Waterproofing, 00-0395 (La.App. 4 Cir. 3/28/01), 786 So.2d 131. There is an ongoing obligation to review medical reports concerning an employee’s injuries, and benefits are not to be denied or discontinued based on inconclusive reports. Id. Employers are obligated to demonstrate that reasonable efforts were made to medically ascertain an employee’s exact condition before denying benefits. Id. We do not find that Alliance further investigated the reported injuries before denying the request for benefits. Accordingly, we find no error, as well, with the OWC’s assessment of penalties for the failure to approve the evaluation by orthopedic surgeon, Dr. Goodman, or the subsequent, cervical surgery recommended by Dr. Ramos.

Mental Health Treatment Expenses

Ms. Hunter argues that the OWC erroneously denied her request. for the reimbursement of medical expenses incurred for mental health treatment, specifically for depression, with psychologist, Dr. Ben Arnold. Alliance responds that the court was correct in rejecting the claim for payment of Dr. Arnold’s services because Ms. Hunter failed to establish that the physical injuries on the job caused her alleged depression. We agree.

| ¡n We stated in Autin v. Hessmer Nursing Home, 93-1492, pp. 2-3 (La.App. 3 Cir. 6/1/94), 638 So.2d 693, 694, units denied, 94-1632, 94-2212 (La.10/7/94), 644 So.2d 634, that clear and convincing evidence of the cause of a mental injury, along with a clinical diagnosis, is required for such a mental injury to be compensated:

In order for a mental injury caused by a physical injury to be compensable under the [workers’ compensation] act, a plaintiff must show by clear and convincing evidence that the physical injury caused the mental injury, the mental injury must be diagnosed by a licensed psychiatrist or psychologist, and the diagnosis must meet the most current criteria established by the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. La.R.S. 23:1021[8](c) and (d).

Clear and convincing evidence of the link between the physical injuries and the alleged mental injury is shown by demonstrating that the existence of the disputed fact is highly probable; that is, that the condition’s existence is much more probable than its nonexistence. Boone v. Midr-State Mktg., 03-1032 (La.App. 3 Cir. 3/3/04), 867 So.2d 91, unit denied, 04-0878 (La.6/25/04), 876 So.2d 833. In this case, there is only the testimony of Ms. Hunter, regarding her depressed mental state after the accident, and there is no medical testimony provided by Dr. Long or Dr. Arnold, nor is there testimony of any family members, for instance, to corroborate her assertions. See id. (finding that testimony of family members and treating medical professionals that corroborates the claimant’s testimony can constitute clear and convincing evidence of the suffering of a mental injury due to a physical injury). Although we consider Ms. Hunter’s internist’s (Dr. Long) one-time notation regarding Ms. Hunter’s complaint of experiencing anxiety and depression, her subsequent prescribing of an anti-anxiety/anti-depressant medication, as well as the two visits to psychologist, Dr. Arnold, to be corroboration of the fact that Ms. Hunter sought out treatment for these mental concerns, we find these facts insufficient to establish clear and convincing evidence of a compensable mental injury that resulted l^from the physical injuries suffered on the job, under the facts of this case. In addition, we found that no diagnosis of depression, meeting the standard set forth by La.R.S. 23:1021(8)(c) and (d), is contained in Ms. Hunter’s medical records.

We, therefore, conclude that the OWC correctly denied the reimbursement of Dr. Arnold’s fees.

Payment of Dr. Sandifer’s Outstanding Bill

The OWC rejected Ms. Hunter’s request for penalties for the late-payment of Dr. Sandifer’s bill for treatment rendered to her on December 12, 2002. The court did so, noting first that this issue was not raised during the trial, but for the first time in Ms. Hunter’s post-trial brief. It then continued, however, to address the issue, reasoning that there was no proof of late payment of the bill presented in the record because there was no proof of Alliance’s receipt of the bills.

On appeal, Ms. Hunter argues that the court committed legal error by applying an improper standard to determine whether or not a penalty was due, when it focused on whether proof of the insurer’s receipt of the bill had been established. Rather, Ms. Hunter argues that she provided sufficient proof that penalties for late payment were due by presenting the two mailing dates of the bill from Dr. Sandifer’s office and by showing that the ultimate date of payment was beyond the sixty-day, statutory deadline for doing so.

Upon review of the record, we find that this issue was not raised during the trial of this matter, and the evidentiary record is not sufficiently developed to properly review this issue. We, therefore, decline to award a penalty for this alleged error.

| ^Additional Attorney Fees

In her answer to the appeal, Ms. Hunter seeks additional attorney fees for work performed by her attorney on this appeal. The longstanding jurisprudential rule is that attorney fees due an attorney for representation in a workers’ compensation matter are based on the attorney’s time, skill and effort. Miller v. Gaspard, 95-861 (La.App. 3 Cir. 12/6/95), 664 So.2d 810 (citing Whatley v. Lummus Co., 243 So.2d 922 (La.App. 3 Cir.1970)). Based on the significant work performed in defense of, and in answer to, this appeal, we grant $2,500.00 in attorney fees to Ms. Hunter for work performed by her attorney on this appeal.

IV.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the OWC in all respects. We also grant Ms. Hunter $2,500.00 in attorney fees for work performed on this appeal. All costs of this appeal are assessed to Alliance Compressors, Inc.

AFFIRMED.

      . The record reflects that Ms. Hunter reported a previous on-the-job injury to her left wrist on September 13, 2002, which caused pain and swelling.

      . There is no other mention in the record of Ms. Hunter experiencing these symptoms in the lower extremities after her evaluation by Dr. Wheat.

      . Ms. Hunter was seen once, on February 27, 2004, by a third orthopedic surgeon, Dr. Steven Atchison. He recorded her complaints of bilateral shoulder pain and bilateral carpal tunnel syndrome, diagnosed a left shoulder, rotator cuff tear, and recommended an updated MRI and EMG of the left shoulder. The record does not reflect that Ms. Hunter underwent those additional scans.

      . Ms. Hunter argues on appeal that Dr. Atchi-son made a recommendation for shoulder surgery which was never approved; however, his records, which consist of one evaluation of Ms. Hunter on February 27, 2004, do not contain any mention of such a recommendation.