author: WELCH, J. WHIPPLE, J.,

text:
    J. BARRY and Rita Babin v. Bryan Paul McDANIEL.
    No. 2005 CU 2455.
    Court of Appeal of Louisiana, First Circuit.
    March 24, 2006.
    Rehearing Denied May 10, 2006.

      Keith Friley, Baton Rouge, for Plaintiffs — Appellees J. Barry and Rita Babin.
    Karen D. Downs, Baton Rouge, for Defendant — Appellant Bryan Paul McDaniel.
    Before: WHIPPLE, McCLENDON, and WELCH, JJ.
   WELCH, J.

lain this appeal, Bryan and Christina McDaniel, the biological father and adoptive mother of Madelynne RitaAnne McDaniel, challenge a judgment: (1) declaring La. R.S. 9:344, a non-parental visitation statute, constitutional; (2) granting visitation with Madelynne to Barry and Rita Babin, her maternal biological grandparents; and (3) finding Mr. and Mrs. McDaniel in contempt of court. After a thorough review of the facts and applicable law, we reverse the judgment on the issue of contempt and affirm the judgment in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

Bryan McDaniel and RitaAnne Babin McDaniel were married and had one child, Madelynne, born on September 28, 2000. RitaAnne was diagnosed with a terminal illness in January 2001 and died on June 22, 2001. On September 12, 2001, Barry and Rita Babin, RitaAnne’s parents, filed a petition for visitation, pursuant to La. R.S. 9:344(A), alleging Mr. McDaniel had refused to allow them to visit Madelynne and seeking a judgment allowing them to do so. After a hearing on December 18, 2001, the trial court awarded the Babins visitation on seven prospective Sundays and scheduled a status conference for February 14, 2002. On February 26, 2002, the parties entered into a stipulated judgment providing that Dr. and Mrs. Babin would have visitation with Madelynne from noon on Saturday to 6:00 p.m. on Sunday every three weeks, beginning on March 30, 2002.

On May 17, 2002, Mr. McDaniel filed a motion to terminate the Babins’ visitation until they had undergone mental evaluation. Mr. McDaniel alleged the Babins’ behavior posed a threat to Madelynne’s well being, that Madelynne had not been in a child restraint seat on two occasions when returned from her visit with the Babins, and that Madelynne had returned from a visit |awith the Babins with an injured toe for which the Babins refused to give an explanation. On May 17, 2002, the trial court signed an order suspending the Babins’ visitation, but later, on May 29, 2002, signed another order reinstating it.

On June 20, 2002, the Babins filed a rule for contempt, alleging Mr. McDaniel had denied their visitation with Madelynne on June 8-9, 2002, and had told them he would not allow any visitation until after the hearing on his pending motion.

On July 2, 2002, the parties entered into a stipulated judgment that, inter alia, ordered Dr. and Mrs. Babin to submit to mental/psychological evaluation by Dr. Mary Lou Kelley; reinstituted the Babins’ regularly scheduled visitation with Made-lynne as of July 6, 2002, to be continued in accordance with the February 26, 2002 stipulated judgment; and reserved decision on the Babins’ contempt motion for the trial on the merits.

On June 9, 2003, the Babins filed a second rule for contempt and motion to reset the pending contempt rule previously filed on June 20, 2002. The Babins alleged Mr. McDaniel had denied their visitation or make-up visitations with Madelynne for June 8-9, 2002; for June 29-30, 2002; for December 21-22, 2002; for March 15-16, 2003; for April 5-6, 2003; and for June 7-8, 2003. The trial court scheduled a hearing on the contempt rules for July 15, 2003, but later continued the hearing multiple times. The rules for contempt were ultimately heard at the trial on the merits.

On September 23, 2003, Mr. McDaniel filed a petition for declaratory judgment asking the trial court to find that La. C.C. art. 136 did not apply to the pending case and that La. R.S. 9:344 was unconstitutional. On October 7, 2004, the State of Louisiana, through the Office of the Attorney General, filed a Lmemorandum in opposition to Mr. McDaniel’s petition for declaratory judgment contending the trial court did not have subject matter jurisdiction to determine the constitutionality of La. R.S. 9:344, and alternatively, that the statute was constitutional.

Mr. McDaniel married Christina Harbi-son on November 21, 2003, and she subsequently adopted Madelynne as her daughter by judgment dated July 12, 2004. At the trial, the parties agreed in open court that Mrs. Christina McDaniel was an indispensable party to the suit.

On December 8, 2004, the Babins filed a third rule for contempt contending they had been denied visitation or make-up visitation with Madelynne for August 9-10, 2003; for August 30-31, 2003; for November 22-23, 2003; for May 8-9, 2004; for September 11-12, 2004; for October 23-24, 2005; and for November 13-14, 2004. This contempt rule was also heard at the trial on the merits.

After the trial of this matter on January 13-14 and February 23, 2005, the trial court signed a judgment on June 14, 2005, wherein the court: (1) concluded it had jurisdiction to determine the constitutionality of La. R.S. 9:344; (2) concluded that La. R.S. 9:344 was constitutional; (3) held Mr. and Mrs. McDaniel in contempt of court, ordered them to pay a $1,000.00 fine, plus costs and attorney fees, and granted the Babins seven make-up visitation days with Madelynne; and (4) awarded the Babins visitation with Madelynne on the first weekend of each month from 6:00 p.m. on Friday through 6:00 p.m. on Sunday and one week during the summer. The judgment also contained terms addressing certain details regarding the visitation arrangement.

Mr. and Mrs. McDaniel appeal from the judgment, asserting the following ^assignments of error:

1. The trial court erred as a matter of law in holding the McDaniels in contempt of court without making specific findings of the contemptuous acts and without stating with specificity the reasons for the finding of contempt of court. Further, the trial court abused its discretion in finding that the McDaniels committed acts constituting contempt of court and punishing them for same as the Babins failed to establish that the McDaniels knowingly and willfully violated the court’s order.
2. The trial court erred in failing to declare La. R.S. 9:344 unconstitutional on its face as an impermissible infringement upon the fundamental right of privacy of a parent to raise [his] child in that it violates the Due Process Clause and the Equal Protection Clause of the United States Constitution.
3. The trial court erred in its application of La. R:S. 9:344 to the case sub judice as the manner in which the statute was applied by the trial court constitutes an impermissible infringement upon the fundamental right of privacy of the [McDaniels] to raise their child given the fact that the trial court specifically expressed a bias as a grandparent and the trial court failed to acknowledge or give any special weight or preference to the [McDaniels as] parents of the minor child over those rights afforded to the [Babins].
4. The trial court erred in awarding the amount of visitation set forth in its judgment as the visitation awarded was not “reasonable” as required by statute but rather unduly burdensome on the parents of the minor child.
5. The trial court abused its discretion in determining that the grandparents established by a preponderance of the evidence that the best interests of the child warrant the granting of visitation in favor of the Babins and by the trial court advocating the Babins’ position.

CONTEMPT

In their first assignment of error, the McDaniels contend the trial court erred in holding them in contempt of court.

Willful disobedience of any lawful judgment constitutes constructive contempt of court. La. C.C.P. art. 224(2). To find a person guilty of constructive contempt, the trial court must find the person violated the court’s order intentionally, purposely, and without justifiable excuse. Leger v. Leger, 2000-0505 (La.App. 1st Cir.5/11/01), 808 So.2d 632, 635. If a person is found guilty of contempt, “the court shall render an order reciting the facts constituting the contempt, adjudging the person charged with contempt guilty thereof, and specifying the punishment imposed.” La. C.C.P. art. 225(B). Nevertheless, the []jurisprudence has held the trial court’s failure to recite the facts constituting the basis for the contempt in the actual order will not invalidate a contempt order if the trial court recites such facts in open court. Garrett v. Andrews, 1999-1929 (La.App. 1st Cir.9/22/00), 767 So.2d 941, 942; Estate of Graham v. Levy, 93-0636 (La.App. 1st Cir.4/8/94), 636 So.2d 287, 293, writ denied, 94-1202 (La.7/1/94), 639 So.2d 1167. The trial court has great discretion in determining whether a party should be held in contempt for disobeying a court order, and an appellate court should reverse the trial court’s decision only when it finds an abuse of that discretion. Leger, 808 So.2d at 635.

The judgment in this case states, “IT IS FURTHER ORDERED, ADJUDGED AND DECREED that BRYAN PAUL AND CHRISTINA McDANIEL are found to be in contempt of court.” The judgment does not mention any facts upon which the contempt judgment is based. In written reasons for judgment, the trial court stated the following regarding the contempt judgment:

The Babins filed four contempt rules against Mr. McDaniel, all alleging denial of visitation. As each contempt was filed, the Court and the parties attempted to correct the alleged problem. However, the Court asked that all of the findings of contempt be dealt with at the time of the trial. This was a mistake on the Court’s part in that so much time lapsed between the alleged contemptuous behavior and the trial that all parties had faded memories of the exact details which made the testimony unclear as to the specific events of each allegation.
But the Court does believe that without the filing of the contempts!,] the Babins would have been denied a major part of their limited visitation. Therefore, the Court finds the McDaniels in contempt.

These reasons for judgment likewise do not set forth any facts to support the trial court’s contempt judgment. In fact, the trial court admitted that it was a “mistake” to defer the contempt rules to the trial and that the lapse of time between the alleged contemptuous behavior and the trial resulted in the parties having “faded memories of the exact details.” Further, we have reviewed the trial |7transcript and have found no specific factual findings by the trial court in open court that would provide a basis for the contempt judgment.

Thus, because the trial court failed to “render an order reciting the facts constituting the contempt,” as is required by La. C.C.P. art. 225(B), we reverse the judgment insofar as it held Bryan and Christina McDaniel in contempt of court, ordered them to pay a $1,000.00 fine, plus costs and attorney fees, and granted the Babins seven make-up visitation days with Madelynne. See Garrett, 767 So.2d at 942-943.

FACIAL CONSTITUTIONALITY OF LOUISIANA REVISED STATUTE 9:344

In their second assignment of error, the McDaniels contend the trial court erred in failing to declare La. R.S. 9:344 unconstitutional on its face as an impermissible infringement on parents’ fundamental right of privacy to raise their children. The McDaniels argue the statute is unconstitutional because it: (1) fails to set forth particular factors a trial court must consider in exercising its discretion to determine what is in the best interest of the child, and (2) gives the court the authority to determine grandparent visitation rights without affording special weight to the parents’ decisions regarding the child’s best interest.

Louisiana Revised Statute 9:344(A), the applicable provision here, provides:

If one of the parties to a marriage dies, is interdicted, or incarcerated, and there is a minor child or children of such marriage, the parents of the deceased, interdicted, or incarcerated party without custody of such minor child or children may have reasonable visitation rights to the child or children of the marriage during their minority, if the court in its discretion finds that such visitation rights would be in the best interest of the child or children.

In support of their argument, the McDaniels refer to Troxel v. Granville, 530 U.S. 57,120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), wherein the United States Supreme Court struck down a Washington non-parental visitation statute allowing |Ra court to grant visitation to “any person when visitation may serve the best interest of the child.” In declaring the “breathtakingly broad” statute unconstitutional, the Troxel court placed particular emphasis upon parents’ constitutionally protected fundamental right to make decisions concerning their children, the presumption that parents act in the best interest of their children, and the failure of the Washington statute or court to give some “material” or “special” weight to the parents’ own determination on the issue of visitation. Troxel, 530 U.S. at 65-72, 120 S.Ct. at 2060-2063; Wood v. Wood, 2002-0860 (La.App. 1st Cir.9/27/02), 835 So.2d 568, 572, writ denied, 2002-2514 (La.3/28/03), 840 So.2d 565.

After Troxel, this court examined the constitutionality of La. R.S. 9:344 in Galjour v. Harris, 2000-2696 (La.App. 1st Cir.3/28/01), 795 So.2d 350, writs denied, 2001-1238, 2001-1273 (La.6/1/01), 793 So.2d 1229, 1230, cert. denied, 534 U.S. 1020, 122 S.Ct. 545, 151 L.Ed.2d 422 (2001). In upholding La. R.S. 9:344, this court concluded the Louisiana statute was more narrowly drawn than the Washington statute at issue in Troxel, because it limited both the non-parental persons who could petition for visitation as well as the circumstances under which visitation could be sought. Galjour, 795 So.2d at 356-358; accord Dupre v. Dupre, 2002-0902 (La. App. 3rd Cir.12/30/02), 834 So.2d 1272, 1280 (“We feel, and other circuits have agreed, that [La. R.S.] 9:344 is sufficiently narrowly drafted so as to not violate the fundamental liberty interests of parents.”)

In this appeal, the McDaniels do not revisit the issues of to whom and under what circumstances non-parental visitation should be allowed under La. R.S. 9:344. Rather, they contend the statute is constitutionally flawed because it provides no factors by which the trial court is to decide the best interest of the child, and because it gives the trial court authority to make a decision regarding nonparent visitation without affording special weight to the parents’ objection to the nonparent visitation.

A statute is unconstitutional on its face if no circumstances exist under which the act would be valid. AFSCME, Council # 17 v. State ex rel. Department of Health & Hospitals, 2001-0422 (La.6/29/01), 789 So.2d 1263, 1269. When a court can reasonably construe a statute to preserve its constitutionality, it must do so. Metro Riverboat Associates, Inc. v. Louisiana Gaming Control Board, 2001-0185 (La.10/16/01), 797 So.2d 656, 662. It is a basic rule of statutory interpretation that, if a statute is susceptible of two constructions, one of which will render it constitutional and the other of which will render it unconstitutional, or raise grave and doubtful constitutional questions, the Imcourt will adopt the interpretation of the statute which, without doing violence to its language, will maintain its constitutionality. Id.

In Babin v. Babin, 2002-0396 (La.App. 1st Cir.7/30/03), 854 So.2d 403, 410-411, writ denied, 2003-2460 (La.9/24/03), 854 So.2d 338, cert. denied sub nom., Babin v. Darce, 540 U.S. 1182, 124 S.Ct. 1421, 158 L.Ed.2d 86 (2004), and in Wood, 835 So.2d at 573, this court noted that a proper interpretation of La. R.S. 9:344 requires the trial court to balance the statute against a fit parent’s constitutionally protected fundamental right of privacy in child rearing and to remember that any rights of nonparents are ancillary to that of a fit parent. Further, the nonparent has the burden of proving visitation or a modification of visitation would be “reasonable” and in the “best interest” of the child as is required by the statute. Wood, 835 So.2d at 573, 574; Babin, 854 So.2d at 410. In considering the best interest of the child, the trial court must be aware that as nonparent visitation increases, the infringement and burden on the parent’s fundamental right of privacy in child rearing increases proportionally. Wood, 835 So.2d at 573; Babin, 854 So.2d at 410-411. Visitation that unduly burdens parental rights would be unconstitutional, regardless of the provisions of statutory law. Wood, 835 So.2d at 573; Babin, 854 So.2d at 411.

Given these jurisprudentially imposed guidelines, and our duty to construe a statute to preserve its constitutionality, we find La. R.S. 9:344 is constitutional on its face. The dictates of Troxel are met by interpreting La. R.S. 9:344 to require deference to a fit parent’s fundamental right of privacy in child rearing and placing the burden on the nonparent to show that the requested visitation is reasonable and in the best interest of the child. Further, the fact that La. R.S. 9:344 does not set forth a list of specific factors to be considered by the trial court in determining the best interest of the child does not render the statute unconstitutional. The courts of this state have applied the “best interest of the child” standard to custody and |nvisitation cases for decades and are very familiar with the factors that must be considered in that determination. See La. C.G. art. 136, Revision Comments — 1993, comment (b), referring to Maxwell v. LeBlanc, 434 So.2d 375 (La.1983) (wherein the Louisiana Supreme Court set forth a comprehensive body of rules governing visitation, all of which were jurisprudential in nature, because Louisiana did not have statutory provisions concerning child visitation prior to 1988).

For the above reasons, we conclude La. R.S. 9:344 can be interpreted in a constitutional manner and find no error in the trial court’s determination that La. R.S. 9:344 is constitutional on its face. This assignment of error has no merit.

CONSTITUTIONALITY OF LOUISIANA REVISED STATUTE 9:344 AS APPLIED

In assignments of error numbers three, four, and five, the McDaniels contend the trial court unconstitutionally applied La. R.S. 9:344 to award the Babins visitation with Madelynne; erred by awarding the Babins an unreasonable amount of visitation; and abused its discretion in determining the Babins carried their burden of proving that visitation with Madelynne was in her best interest.

Although a statute is constitutional on its face, this does not preclude a finding that it has been unconstitutionally applied. A court may apply a facially sufficient statute in an unconstitutional manner. See Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 787, 28 L.Ed.2d 113 (1971). The trial court, however, is in the best position to ascertain the best interest of the child given each unique set of circumstances. Babin, 854 So.2d at 408. The trial court has vast discretion in child visitation matters, and its determination on the issue is entitled to great weight and will not be disturbed on appeal unless an abuse of discretion is clearly shown. Id.

The McDaniels contend the trial judge unconstitutionally applied La. R.S. 9:344 by specifically expressing her bias as a grandparent and by failing to give special weight or preference to their parental rights over the Babins’ rights as grandparents. The McDaniels argue the trial judge specifically expressed such a bias at the initial hearing in this matter when she stated that she was “prejudiced” in this case and that the parties would have to forgive her if her personal feelings were involved, “but there is nobody that pan do what grandparents can do for their children.”

Generally, a trial judge is presumed to be impartial. State ex rel. J.B. v. J.B., Jr., 35,846 (La.App. 2nd Cir.2/27/02), 811 So.2d 179, 184; see also Southern Casing of Louisiana, Inc. v. Houma Avionics, Inc., 2000-1930, 2001-1931 (La.App. 1st Cir.9/28/01), 809 So.2d 1040, 1050. Further, an impersonal prejudice resulting from a judge’s background or experience ordinarily is not enough to establish bias. See 48A C.J.S. Judges § 110, p. 738. The trial judge readily admitted her status as a grandmother in this case. However, at the trial, she also noted her status as a mother, former teacher, lawyer, aunt, and cousin, as well as her belief that “family is very important,” but reassured counsel for the McDaniels that her beliefs would not overshadow what the law required her to do. When viewed in its entirety, the record does not show the trial judge’s status as a grandmother created any particular prejudice as to deprive the McDaniels of their fundamental right of privacy in child rearing. See State ex rel. J.B., 811 So.2d at 184-186.

In support of their argument that the trial court failed to give special weight to their parental rights, the McDaniels point to instances in the record where the trial court questioned them about their parenting beliefs and allegedly “ridiculed” Mr. McDaniel’s desire to be a protective parent. They also refer to evidence of instances where the Babins did not respect their wishes as parents during 11sMadelynne’s visitations. According to the McDaniels, the Babins have ignored their requests: that Madelynne’s hair not be washed during a visitation; to have Madelynne call them during a visitation; to have her sleep in her own bed and in her own room; to refrain from taking Ma-delynne swimming when she was sick and because she has chronic ear infections; to apply insect repellent to Madelynne; to refrain from taking Madelynne to her birth mother’s gravesite; to call the child by her name “Madelynne” and not her former name, “Rita Madelynne;” to refrain from out-of-town travel with Madelynne without permission; to refrain from discussing her birth mother’s illness and the particulars of her death with Madelynne; to have Madelynne properly restrained in an approved car seat while traveling in a vehicle; to follow her bedtime and other established routines; and to provide the McDaniels information about Madelynne when she is with them.

In granting visitation to the Babins, it is clear the trial court considered the McDaniels’ concerns about the Babins’ alleged disregard of their parental wishes. In extensive reasons for judgment and in the judgment, the trial court made specific rulings indicating its deference to the McDaniels’ preferences. The judgment gives the McDaniels the option of declining make-up visits if the Babins are unable to exercise their monthly weekend visitation with Madelynne. The judgment allows the McDaniels to defer visitation to the next weekend if the Babins’ scheduled weekend falls on certain enumerated holidays. It further requires the Babins to provide the McDaniels with a telephone number where they can be reached during their visitation weekends. The judgment requires the Babins to comply with “any and all reasonable requests for medical treatment” conveyed to them by the McDaniels and mandates that they notify the McDaniels of “any illness or injury suffered by [Made-lynne] while she is in their care.” With adequate notice, the Babins are required to take Madelynne to any scheduled activity occurring during their visitation (i.e., any sport activities or birthday 114parties, etc.) and specifies that the McDaniels are free to also attend the activity. Although the judgment allows the Babins to take Madelynne on “short out of town trips” during their visitation periods, the Babins are required to inform the McDaniels of their destination, to remain available for reasonable telephone contact, and to always have Madelynne properly restrained in a car seat when a vehicle is in motion. The Babins “must obey” the McDaniels’ wishes that they refrain from talking about the specifics of RitaAnne Babin McDaniel’s death, and they are prohibited from taking Madelynne to her birth mother’s gravesite until she is old enough. The Babins are required to call the child “Ma-delynne” and to refer to Christina McDaniel as Madelynne’s mother.

The specificity of the trial court’s judgment demonstrates its awareness of the McDaniels’ constitutionally protected fundamental right to raise Madelynne as they see fit and that the Babins’ rights as grandparents are ancillary to the McDan-iels’ rights.

The McDaniels further challenge the visitation award to the Babins as unreasonable and claim the Babins did not prove that visitation was in Madelynne’s best interest. In determining the need for, frequency and length of the Babins’ visitation with Madelynne, the trial court was in the best position to ascertain Madelynne’s best interest. Babin, 854 So.2d at 408. In making the award, the trial court noted the Babins’ experience as parents, grandparents, and contributing members of their community. Although the trial court expressed its firm belief in the authority of parents to raise their child, the court also noted the necessity that a child of a deceased parent have access to her extended family. The court opined that Made-lynne’s only knowledge of her birth mother’s heritage would come from the Babin family. The trial court stated that the Babins had as much a desire to protect Madelynne as did her father and that they always engaged in “appropriate family fun” when Madelynne was with them regardless of the | ^animosity between the adults. She also noted that Dr. Mary Lou Kelley, the psychologist who evaluated Dr. and Mrs. Babin, recommended that Made-lynne continue visitation with the Babins.

In this case, as in most visitation cases, the trial court’s determination that continued visitation with the Babins was in Ma-delynne’s best interest was heavily based on factual and credibility determinations, which require great deference on appeal. Babin, 854 So.2d at 408. Our review of the record indicates there is a reasonable basis for the trial court’s factual findings. Further, as earlier noted, the trial court was also in the best position to ascertain Madelynne’s best interest given the circumstances of this case. Based on the evidence indicating the Babins’ positive influence in Madelynne’s life, and considering that the judgment is specifically drafted to give deference to the McDaniels’ role as Madelynne’s parents, we cannot say the trial court unconstitutionally applied La. R.S. 9:344 or abused its discretion in awarding visitation to the Babins. These assignments of error are without merit.

CONCLUSION

For reasons stated herein, the trial court’s judgment is reversed in part and affirmed in part. It is reversed insofar as it held Bryan and Christina McDaniel in contempt of court, ordered them to pay a $1,000.00 fine, plus costs and attorney fees, and granted the Babins seven make-up visitation days with Madelynne. In all other respects, the judgment is affirmed. Costs of this appeal are equally assessed to the parties.

AFFIRMED IN PART AND REVERSED IN PART.

WHIPPLE, J., concurs and assigns reasons.

WHIPPLE, J.,

concurring.

| ^though I agree with the majority, I write separately to express my view that the judgment of the trial court comes perilously .close to being an unconstitutional application of grandparents’ rights as set forth in LSA-R.S. 9:344. In particular, I am troubled by some of the trial court’s comments, which appear to disregard the parents’ rights to make decisions for their child in some respects. For instance, in reasons for judgment, the trial court stated that, “[ajlthough the Babins must always give deference to the religious beliefs of the McDaniels, the Court does not see any harm in the child being exposed to the Babins’ religious beliefs.” Clearly, the religious beliefs to which a parent exposes his or her child and decisions as to how (or even whether) to practice one’s religion are fundamental child-rearing decisions that the parents alone have the paramount right to make.

I am also troubled by the court’s rejection of certain other parameters that the father would like to set regarding the grandparents’ activities with the child. In particular, I am troubled by the court’s ruling requiring the parents to send a sick child to the grandparents. In justifying such a ruling, the trial court stated that it found “the Babins perfectly capable of taking care of a sick child,” which may be correct with regard to routine childhood illnesses. However, under certain circumstances, la, situations involving serious illness, a ruling forcing visitation could amount to unwarranted and unconstitutional interference with paramount parental rights, including the | aright to make medical decisions and provide such care and comfort as the parents deem appropriate under the circumstances.

Moreover, I am troubled by the Babins’ past disregard for some of the decisions, rules and wishes of the child’s parents, which resulted in the various orders of the trial court directing the Babins to adhere to the parents’ rules or decisions. Because I find that the trial court carefully addressed some of these past problems, I concur in the majority’s decision to affirm the grandparents’ visitation rights subject to the limitations imposed by the court. However, any future or further attempts by the Babins to knowingly impose their competing beliefs, decisions or wishes upon the child during their visitation periods with the child would, in my view, be difficult to accept as a constitutional limitation upon the parents’ paramount rights or as being in the child’s best interest.

In sum, the parents’ rights regarding their child are paramount, and everything else must be secondary to those rights. Indeed, even in a custody or visitation dispute between two parents, the court is empowered under the “best interest of the child” standard to terminate visitation with one parent where such visitation infringes on or unduly interferes with the primary custodial parent’s relationship with the child and, thus, is not in the best interest of the child. Certainly, where the dispute is between a parent and a grandparent, the grandparent’s rights must always be secondary to the paramount rights of the parent to raise his or her child under the beliefs, standards and rules he or she chooses.

With regard to decision-making, parents and grandparents are not equals before the court and should never be treated as such. However, given the reasons articulated by the trial court and the record herein, I concur in the ^majority’s decision to affirm the judgment, and to vacate the finding of contempt against the parents.

      . The trial court's judgment states, “IT IS FURTHER ORDERED, ADJUDGED AND DECREED that La. R.S. 9:344 is constitutional.” Because the particular provision at issue in this case is La. R.S. 9:344(A), we construe the trial court's judgment as a declaration of the constitutionality only of this specific provision.

      . This allegation is apparently based, in part, on Mr. McDaniel's discovery that the Babins had taken Madelynne to her birth mother’s gravesite and were continuing to call the child "Rita Madelynne” after her name had been legally changed to "Madelynne RitaAnne McDaniel.”

      . In reasons for judgment, the trial court determined La. C.C. art. 136 applied to visitation in divorce cases only and that La. R.S. 9:344 was the correct legal authority for grandparent visitation in this case.

      . Jurisprudence mandates that the attorney general be served a copy of the pleading challenging a statute's constitutionality. Huber v. Midkiff, 2002-0664 (La.2/7/03), 838 So.2d 771, 776.

      .The trial court determined it had subject matter jurisdiction to determine the constitutionality of La. R.S. 9:344 under La. R.S. 13:1401(A)(1), which grants the family court for the parish of East Baton Rouge exclusive jurisdiction in "[a]ll actions for ... custody and visitation of children, as well as all matters incidental to any of the foregoing proceedings.”

      . Because we reverse on the trial court's failure to recite a factual basis for the contempt judgment, we need not address the McDan-iels' argument that the trial court abused its discretion in finding them in contempt because the Babins failed to prove the McDan-iels knowingly and willfully violated the court's visitation order.

      . We note the following state legislative activity after the Troxel decision:
      House Concurrent Resolution No. 68 of the 2001 Regular Session provides:
      WHEREAS, the United States Supreme Court has ruled in the case of Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), that a Washington state statute, which provided for visitation rights of children, violated certain constitutional rights of parents; and
      WHEREAS, Louisiana has several laws regarding the visitation rights of children, including Civil Code Article 136, Children's Code Article 1264, and R.S. 9:344; and
      WHEREAS, while the United States Supreme Court rested its decision on the sweeping breadth of the Washington state statute, the court emphasized that one of the oldest of the fundamental interests recognized by the court was the right of parents, whose fitness has not been questioned and who are presumed to act in the best interests of their children, to make decisions concerning the care, custody, and control of their children without the state injecting itself into the private realm of the family.
      THEREFORE, BE IT RESOLVED by the Legislature of Louisiana that the Persons Committee of the Louisiana State Law Institute study the effect of the United States Supreme Court case of Troxel v. Granville on Louisiana laws relative to child visitation and to make specific recommendations for revisions to state laws to ensure that state laws are not contrary to the fundamental rights of parents to make decisions concerning the care, custody, and control of their children.
      BE IT FURTHER RESOLVED that a copy of this Resolution be transmitted to the director of the Louisiana State Law Institute and that the Louisiana State Law Institute report its findings and recommendations to the legislature on or before January 1, 2003.
      House Concurrent Resolution No. 38 of the 2003 Regular Session provides in part:
      WHEREAS, the Louisiana State Law Institute submitted its report on the effect of the United States Supreme Court decision in Troxel v. Granville on Louisiana’s third-party visitation statutes in response to House Concurrent Resolution No. 68 of the 2001 Regular Session; and
      WHEREAS, the report concludes that Louisiana's visitation statutes, Civil Code Article 136(B), R.S. 9:344, and Children's Code Article 1264 are constitutional on their face but may be unconstitutional in application to particular litigation; and
      WHEREAS, the report also describes the various visitation statutes as scattered in disparate locations and by virtue of piecemeal amendments insufficiently respectful of a parent’s constitutional right to rear his or her own children; and
      WHEREAS, the current content of the visitation statutes fail in some cases to make logical distinctions in substantive standards to be applied by the Court on the basis of degree of interference in the family life of parents and children.
      THEREFORE, BE IT RESOLVED by the Legislature of Louisiana that the Marriage/Persons Committee of the Louisiana State Law Institute study the aforementioned visitation statutes for the purpose of recommending revisions prior to the 2004 Regular Session.
      House Concurrent Resolution No. 139 of the 2004 Regular Session, provided that the Marriage Persons Committee of the Louisiana State Law Institute study Louisiana's child custody and visitation laws and make specific recommendations on or before January 15, 2006, for revisions to state law.
      House Concurrent Resolution No. 158 of the 2004 Regular Session, urged and requested the Louisiana State Law Institute to study Louisiana’s visitation statutes and make specific recommendations on or before January 15, 2005, for revisions to state laws.

      . This court has also noted that the factors listed in La. C.C. art. 136(B) may be of some guidance to a trial court in its best interest review under La. R.S. 9:344. See Wood, 835 So.2d at 574 n. 7.

      . Also see State of Louisiana v. Tyson, 241 F.Supp. 142, 145 (E.D.La.1965) (“Judges are not forbidden to know as judges what they see as men.”).


source: Caselaw Access Project

author: GAIDRY, J.

license: Public Domain

text:
    EMERGENCY PHYSICIANS ASSOCIATION v. Lawrence C. LEVENTHAL, M.D. and J. Thomas Miceli, M.D. Emergency Physicians Association v. Our Lady of the Lake Regional Medical Center, et al.
    Nos. 2005 CA 1063, 2005 CA 1064.
    Court of Appeal of Louisiana, First Circuit.
    March 24, 2006.
    Writ Denied June 16, 2006.

      Scott H. Fruge( Baton Rouge, Counsel for Plaintiff/Appellant Emergency Physicians Association.
    W. Luther Wilson, Baton Rouge, Counsel for Defendant/Appellee Our Lady of the Lake Regional Medical Center.
    Before: CARTER, C.J., WHIPPLE, and GAIDRY, JJ.
   GAIDRY, J.

| gin this case, plaintiff appeals a trial court judgment failing to award damages after the trial court found that the defendant breached a contract between the parties. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

This dispute involves a contract between plaintiff, Emergency Physicians Association (“EPA”), and defendant, Our Lady of the Lake Regional Medical Center (“OLOL”). Pursuant to the contract, EPA operated the emergency room at OLOL for a number of years. The contract automatically renewed each year for an additional one-year term unless terminated by the parties. Either party could terminate the contract by providing written notice of intent to terminate to the other party at least sixty days prior to the expiration of the current contract term. The contract between the parties also contained the following confidentiality clause:

IV. Confidentiality of Contract

During the term of this Agreement and any renewals or other extensions thereof, the Hospital will not discuss this Agreement or any similar agreement with any emergency room physician of the Partnership except those designated herein. Any similar agreement is defined to mean any agreement to render services in the Emergency Care Unit of the Hospital. However, through mutual written agreement, prior to any initial discussion with contracted emergency room physicians, the Hospital may contact any contracted emergency room physician.

On October 26, 1982, OLOL’s hospital administrator, Robert Davidge, sent a letter of termination to Dr. Roland Louque, a partner at EPA. The letter stated that to comply with new federal rules, OLOL needed to renegotiate the existing contract with EPA so that OLOL was no longer subsidizing EPA. The parties entered into negotiations for a new contract to take effect January 1, 1983; however, by December, the parties were no ^longer communicating and the negotiations concluded without a new agreement being reached. OLOL had also been discussing a potential contract for operation of the emergency room with Spectrum Emergency Care, a large out-of-state emergency room operator. Two EPA physicians, Dr. Larry Leventhal and Dr. Thomas Miceli, were approached by Spectrum about possible employment. Sensing their jobs were in jeopardy, Drs. Leventhal and Miceli made an offer to OLOL to take over the operation of the emergency room. OLOL accepted their offer, and Drs. Leventhal and Miceli took over the OLOL emergency room on January 1, 1983.

EPA filed suits against OLOL and Drs. Leventhal and Miceli. EPA’s suit against OLOL alleged that OLOL breached the confidentiality clause of its contract by negotiating with Drs. Leventhal and Miceli during the term of its contract with OLOL. For trial, the case was bifurcated into liability and damages for trial. After a bench trial, the trial court held that OLOL had violated the terms of its contract with EPA by accepting the proposal submitted by EPA member doctors Leventhal and Miceli during the term of OLOL’s contract with EPA. In so ruling, the trial court found that the purpose of the confidentiality clause was to prevent the very activity which occurred. However, the trial court also found that the EPA-OLOL contract had been cancelled timely and properly by OLOL and that a new contract would not have been confected between OLOL and EPA. The trial court denied EPA’s request for compensatory damages, but awarded EPA $60,000.00 in non-pecuniary damages for a breach that was “willful and amounted to an independent tort.”

OLOL appealed this judgment. This court affirmed the denial of compensatory damages and reversed the award of exemplary damages. Emergency Physicians Association v. Our Lady of the Lake Regional Medical Center, 92-2090 (La.App. 1 Cir. 2/11/94), 635 So.2d 1148. The supreme court reversed in a per curiam, stating:

The parties in the instant ease stipulated, and the trial court ordered, that the trial of this matter would be bifurcated as to the issues of liability and damages_The plaintiff has successfully litigated the issue of liability and is entitled, under LSA-C.C.P. Article 1562(A), to a trial on the issue of damages.
Therefore, the judgments of the lower courts, only insofar as they relate to the issue of damages, are vacated, and this matter is remanded to the trial court for trial on the issue of damages.

Emergency Physicians Association v. Our Lady of the Lake Regional Medical Center, 94-1268 (La.9/16/94), 642 So.2d 179.

After a trial on damages, the trial court found that EPA was entitled to neither pecuniary nor non-pecuniary damages and dismissed EPA’s suit. The instant appeal followed.

DISCUSSION

Two types of damages are recognized under the law: pecuniary or economic damages, and non-pecuniary damages. In analyzing EPA’s claim for damages, we must look to the contract. Corbello v. Iowa Production, 2002-0826, p. 8 (La.2/25/08), 850 So.2d 686, 695. The obvious intent of the confidentiality clause was to prevent OLOL from hiring away EPA’s physicians, causing EPA to lose the contract. Since OLOL had already terminated the contract with EPA and the parties were no longer negotiating with each other, EPA could not have suffered any sort of economic loss as a result of OLOL’s breach.

At the time of the breach in this case, Louisiana Civil Code article 1934 governed the recovery of non-pecuniary damages:

|fi(3).. .Where the contract has for its object the gratification of some intellectual enjoyment, whether in religion, morality or taste, or some convenience or other legal gratification, although these are not appreciated in money by the parties, yet damages are due for their breach; a contract for a religious or charitable foundation, a promise of marriage, or an engagement for a work of some of the fine arts, are objects and examples of this rule.

Whether a contract is meant to gratify some intellectual enjoyment is a question of fact, subject to the manifest error/clearly wrong standard of review. See Heath v. Brandon Homes, Inc., 36,184 (La.App. 2 Cir. 8/14/02), 825 So.2d 1262, 1268-69. The contract at issue in this case was clearly not meant to gratify some intellectual enjoyment; it was a business contract, pure and simple. Given the circumstances of this ease, the trial court’s decision not to award damages to EPA for OLOL’s breach of contract was not manifestly erroneous or clearly wrong.

DECREE

The February 25, 2005 judgment of the trial court dismissing EPA’s claims for damages is affirmed. Costs of this appeal are to be borne by plaintiff, EPA.

AFFIRMED.

      . Under the old contract, OLOL billed for services provided by EPA in the emergency room and then remitted all funds collected to EPA. OLOL also paid (subsidized) EPA for the non-collectible bills.

      . The suit against Drs. Leventhal and Miceli was settled.

      . Non-pecuniary damages for breach of contract are currently governed by Louisiana Civil Code article 1998, which provides that non-pecuniaiy damages are only recoverable for a breach of contract where the contract was intended to gratify some non-pecuniary interest of a party or where the breaching party intended by his breach to aggrieve the feelings of the other party. Article 1998 did not become effective until January 1, 1985, several years after the breach at issue in this case.


author:
WELCH, J.
      McCLENDON, J.,

text:
    Mona ROBERTS v. THIBODAUX HEALTHCARE CENTER.
    No. 2005 CA 0774.
    Court of Appeal of Louisiana, First Circuit.
    March 24, 2006.

      Russell B. Ramsey, New Orleans, for Plaintiff — Appellee Mona Roberts.
    H. Carter Marshall, Kevin R. Tully, New Orleans, for Defendants — Appellants Thibodaux Healthcare Center and Employers Insurance of Wausau.
    Before WHIPPLE, McCLENDON, and WELCH, JJ.
   WELCH, J.

|¡>In this workers’ compensation dispute concerning an alleged pre-existing back condition, the employer/defendant, Thibo-daux Healthcare Center, and its insurer, Employer’s Insurance of Wausau (collectively referred to as “Thibodaux Healthcare”), appeal a judgment rendered in favor of the employee/plaintiff, Mona Roberts, which among other things, awarded her workers’ compensation benefits, penalties, and attorney fees. Finding no error in the judgment rendered by the workers’ compensation judge (“WCJ”), we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

A. Plaintiffs Relevant Past Medical History

On October 16,1997, Dr. Donald J. Judi-ce, a neurosurgeon, performed a surgical anterior cervical discectomy and fusion at C4-5 and C5-6 on Ms. Roberts’ cervical spine. At a routine follow-up visit on January 22, 1998, in Dr. Judice’s absence, Ms. Roberts saw Dr. H. Carson McKowen, another neurosurgeon. She subsequently returned to Dr. McKowen on March 23, 1998, for another follow-up visit, and reported that she was having increased neck pain, headaches and “back pain radiating down the right leg with some left leg pain.” Dr. McKowen noted that he found no “neurological deficit in the lower extremities, but it [was] worth checking into” and therefore, he ordered a CT scan of both the cervical and lumbar spine. The CT scan was performed on March 26,1998, and with regard to the lumbar spine, it revealed:

AT L4-5, THERE IS A SMALL LEFT POSTERIOR DISC BULGE INTO THE INFERIOR ASPECT OF THE LEFT NEURAL FORAMEN. THIS IS SEEN TO CURVE BELOW THE LEVEL OF THE EXIT OF THE NERVE ROOT AND DOES NOT APPEAR TO COME IN CONTACT WITH THE NERVE ROOT ITSELF. EPIDURAL FAT REMAINS PRESENT WITHIN THE FORAMEN. THERE MAY BE MILD ENCROACHMENT UPON THE LEFT LATERAL RECESS AT THIS LEVEL. ... IMP: SMALL FOCAL |SLEFT POSTERO-LATERAL DISC BULGE INTO THE LEFT NEURAL FORAMEN AT L4-5. THIS IS OF UNCERTAIN CLINICAL SIGNIFICANCE.

After Dr. McKowen reviewed the results of Ms. Roberts’ CT scan and at another follow-up visit with Ms. Roberts, Dr. McKowen noted: “[t]he lumbar CT scan shows a lateral disc protrusion at L4-5 but not too badly. I don’t recommend surgery for any of this. I told her the usual treatment would be anti-inflammatory medications, muscle relaxants and physical therapy. We are going to try therapy 3 times a week for 3 weeks for both the cervical and lumbar radiculopathy.” (Emphasis added).

Thereafter, Ms. Roberts went to Thibo-daux Physical Therapy for treatment on April 7, 1998. Her initial evaluation record, dated April 9, 1998, indicated that Ms. Roberts’ diagnosis was cervical and lumbar radiculopathy and that Ms. Roberts had complained of “insidious onset of cervical and lumbar discomfort.” However, Ms. Roberts’ subsequent discharge summary, dated June 24, 1998, noted that Ms. Roberts went to physical therapy three times a week for three weeks (from April 7 through May 6, 1998), and that the area treated was “[c]ervical and shoulder.” This record makes no reference to Ms. Roberts receiving physical therapy for her lumbar spine or back.

Thereafter, Ms. Roberts went to Dr. McKowen for follow-up visits on May 11, 1998, May 18, 1998, October 2, 1998, October 19, 1998, January 25, 1999, February 1, 1999, September 3, 1999 and September 13, 1999. During this time period, Ms. Roberts never complained to Dr. McKowen that she was having back pain, with the exception on September 3, 1999, wherein Dr. McKowen noted: “Ms. Roberts returns continuing to have quite a bit of neck pain and pain into the arm. ... In addition, she has lower back pain with pain down the left leg but the neck is much worse.” Thereafter, on December 17, 1999, Ms. Roberts sought | treatment with another neurosurgeon, Dr. Stefan G. Pri-bil.

According to Dr. Pribil’s records, Ms. Roberts’ main complaints were for neck pain and headaches, but also reported “mild low back pain.” His office notes reflect that he reviewed the March 26, 1998 CT scan of the lumbar spine, which showed a “disc herniation at L4-5 on the left.” On January 31, 2000, Dr. Pribil performed another surgical cervical fusion on Ms. Roberts. Ms. Roberts was under Dr. Pribil’s continuous treatment from December 17, 1999 through October 5, 2000, when she was discharged. Ms. Roberts saw Dr. Pribil approximately one year later for follow-up visits on October 25, 2001 and November 6, 2001. During this entire time period, Dr. Pribil’s records do not reflect that Ms. Roberts ever complained of back pain, with the exception of the initial visit on December 17,1999.

B. Plaintiffs Present Medical Condition

On April 3, 2003, Ms. Roberts, while in the course and scope of her employment as a dietary aide with Thibodaux Healthcare Center, was allegedly injured as the result of an accident when she pushed on a carton of liquid eggs while she was in a stooped position, and experienced pain in her back. Upon standing, Ms. Roberts experienced pain radiating into both of her legs. Ms. Roberts immediately reported the incident to her supervisor, Connie Bellow. That same day, Ms. Roberts sought treatment with her family physician, Dr. Jody M. Plaisance. Dr. Plaisance gave Ms. Roberts an injection and ordered an MRI of her lumbar spine. The MRI, performed on April 8, 2003, revealed “a central and left-sided disc protrusion at [L4-5] causing moderately severe mass effect upon the left aspect of the thecal sac and severe encroachment upon the medial aspect of the left neural foramen.” Thereafter, Dr. Plaisance referred Ms. Roberts to Dr. Thomas R. Donner, a neurosurgeon, for treatment.

| ¡At the outset, Dr. Donner treated Ms. Roberts conservatively with medication and physical therapy, but when her symptoms and pain became considerably worse, he recommended a “minimally invasive L4-5 discectomy.” In response to Dr. Donner⅛ recommendation for surgery, Thibodaux Healthcare inquired as to whether Dr. Donner would consider acupuncture as an alternative form of treatment for Ms. Roberts.

Thereafter, Thibodaux Healthcare sent Ms. Roberts to another neurosurgeon, Dr. Pribil, for a second medical opinion. After seeing Ms. Roberts in his office on June 3, 2003, Dr. Pribil diagnosed Ms. Roberts with a lumbar disc herniation at L4-5 on the left, and he opined that “surgery by Dr. Donner ... appears to be a reasonable method of treatment.” However, he further stated Ms. Roberts “may respond poorly to just a simple microdiscectomy” and that a “[surgical] fusion might need to be entertained.”

Upon learning that Ms. Roberts was a former patient of Dr. Pribil’s and after obtaining and reviewing Dr. Pribil’s past medical records for Ms. Roberts, Thibo-daux Healthcare terminated Ms. Roberts’ workers’ compensation and medical benefits and also refused to authorize the surgery recommended by Dr. Donner. On August 14, 2003, Dr. Donner sent a letter to Thibodaux Healthcare, on behalf of Ms. Roberts, stating:

It has come to my attention that the Mona Roberts case has been questionably related to an old problem that she had in her lumbar spine treated by Dr. McKowen in 1998. The patient at that time complained of lower back pain with primary radiation into the right leg and was found on radiographic workup to have a minor disc protrusion at this level. More recently, the problem that I have treated her for is for left sided leg pain with an obvious compression of the left L5 nerve root from a sizeable disc protrusion here. It appears that the latter is a new lesion, which was not clearly present on the patient’s prior workup and should be covered under the patient’s current workers’ compensation claim.

Nevertheless, Thibodaux Healthcare continued to deny Ms. Roberts’ | ¿workers’ compensation and medical benefits and refused to authorize the recommended surgery.

In November 2003, Dr. Donner discharged Ms. Roberts from his care due to Thibodaux Healthcare’s refusal to approve his recommendations for her care (ie., the surgical L4-5 discectomy). In the letter discharging Ms. Roberts from his care, Dr. Donner informed Ms. Roberts that “[y]our symptoms now have been present for many, many months and the longer they go untreated, the worse your prognosis ultimately becomes. ... Once again, I would like to stress the fact that further delays in the management of your lumbar disc herniation place you at a high risk of developing sequelae.”

Thereafter, on June 15, 2004, Ms. Roberts went to Dr. Christopher E. Cenac, an orthopedic surgeon, who was Thibodaux Healthcare’s choice of physician (and expert witness in this matter). Dr. Cenac concurred with the interpretation of the March 26, 1998 CT scan that the “left lateral disc protrusion ... at L4/5 ... [was] of uncertain clinical significance.” However, he believed that because Ms. Roberts’ physical complaints were inconsistent with diagnostic test results, he did not recommend surgery at that time, but rather, recommended further testing to determine whether Ms. Roberts had “the normal progression of a prior asymptomatic condition at L4/5 and/or an aggravation of that condition causally related to the 4/3/08 incident.” Thereafter, upon review of the result of the April 8, 2003 MRI of Ms. Roberts, Dr. Cenac concurred with the radiographic diagnosis that “[t]he patient does have a left eccentric disc herniation with nerve root impingement at L4/5,” but opined that “there is a high probability that the finding noted on the recent [MRI] is pre-existing.”

When Dr. Donner, Ms. Roberts’ treating physician for this injury, was |7consuIted regarding the results of Ms. Roberts’ March 26, 1998 CT scan and its relationship to the present injury, as evidenced by the April 8, 2003 MRI, Dr. Donner stated that while

very minor disc pathology [was] noted at L4-5 ... it is clear to me that [Ms. Roberts] had a new L4-5 disc herniation from the lifting incident which immediately preceded her 04/11/2003 visit with me. ... I suppose in some very loose way it could [be related to her 1998 injury] but at that time [Ms. Roberts] had only very minor disc pathology demonstrated and no symptoms obviously referable immediately to it. Given this, I have to stick with my opinion that [Ms. Roberts’] symptoms were more causally related to new herniation of the disc in early 2003 rather than related to a remote problem in 1998, although admittedly, that incident could have played a very minor role in the history of [Ms. Roberts’] problems.

C. Procedural History of this Action

On September 30, 2003, shortly after Thibodaux Healthcare terminated Ms. Roberts’ workers’ compensation and medical benefits and refused to authorize surgery, Ms. Roberts instituted these proceedings for her benefits and specifically requested that she be allowed to have the back surgery recommended by Dr. Donner. Thibodaux Healthcare answered, essentially denying that Ms. Roberts sustained an injury on April 3, 2003, and denying that she was performing service in the course and scope of her employment at the time of her alleged injury. However, Thibodaux Healthcare did admit that Ms. Roberts was an employee at the time of the alleged injury on April 3, 2003, and that she had been paid compensation benefits in the amount of $83.67 per week from April 4, 2003, through September 30, 2003. Thibodaux Healthcare further contended that Ms. Roberts had received all benefits to which she was entitled, asserted a right to reduction of benefits, and denied that it had acted in an arbitrary and capricious manner at any time in this matter.

On March 3, 2004, Thibodaux Healthcare filed a reconventional demand ^alleging that Ms. Roberts violated La. R.S. 23:1208 by willfully making false statements or representations to obtain workers’ compensation benefits and, therefore, had forfeited her right to receive workers’ compensation benefits. Additionally, Thibodaux Healthcare sought an order compelling Ms. Roberts to attend a medical examination with its choice of physician, Dr. Cenac, which the WCJ granted notwithstanding that Thibodaux Healthcare had previously chosen Dr. Pribil for the second medical opinion.

On October 1, 2004, a trial on the merits was held. After the introduction of evidence and receipt of post-trial memoranda, the WCJ took the matter under advisement. On January 21, 2005, the WCJ rendered and signed judgment as follows: (1) finding Ms. Roberts suffered an accident on April 3, 2003, within the definitions established by the Workers’ Compensation Act; (2) finding Ms. Roberts was injured as the result of an accident while in the course of and arising out of her employment with the Thibodaux Healthcare Center; (3) finding Ms. Roberts suffered an aggravation of a pre-existing back condition; (4) finding Ms. Roberts did not violate La. R.S. 23:1208; (5) finding Ms. Roberts was entitled to workers’ compensation indemnity benefits and the reinstatement of indemnity benefits from the last date those benefits were received by her; (6) ordering Ms. Roberts be paid a workers’ compensation rate of $83.67 per week pursuant to La. R.S. 23:1202(A)(2) and pursuant to a joint stipulation by the parties; (7) finding Ms. Roberts was entitled to all reasonable and necessary medical treatment; (8) ordering Thibodaux Healthcare to pay for all past medical treatment incurred by Ms. Roberts related to or as a consequence of the accident of April 3, 2003; and (9) assessing Thibodaux Healthcare penalties in the amount of $1,000.00 and attorney Rfees in the amount of $5,000.00.

It is from this judgment that Thibodaux Healthcare now appeals.

II.ASSIGNMENTS OF ERROR

On appeal, Thibodaux Healthcare asserts that: (1) the WCJ erred in finding that Ms. Roberts had carried her burden of proving that she suffered an aggravation of a pre-existing back condition on April 3, 2003; (2) the evidence was insufficient to show that surgery for her herniated disc was warranted; (3) the WCJ erred and abused her discretion in awarding penalties and attorney fees.

III.STANDARD OF REVIEW

In a workers’ compensation case, whether a claimant has carried her burden of proof and whether testimony is credible are questions of fact to be determined by the WCJ. Authement v. Wal-Mart, 2002-2434 (La.App. 1st Cir.9/26/03), 857 So.2d 564, 570. Additionally, whether the refusal to pay benefits warrants the imposition of penalties and attorney fees is likewise a factual question. Crochet v. Barbera Chevy-Chrysler Co., Inc., 2004-1390 (La. App. 1st Cir.6/29/05), 917 So.2d 49, 53. Appellate review of the factual findings in workers’ compensation cases is governed by the manifest error or clearly wrong standard. Chaisson v. Cajun Bag & Supply Co., 97-1225 (La.3/4/98), 708 So.2d 375, 380.

The two-part test for appellate review of facts is: (1) whether there is a reasonable factual basis in the record for the finding of the trial court, and (2) whether the record establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, an appellate court may not set aside a trial court’s factual findings unless, reviewing the record in its entirety, it determines the trial court’s factual finding was clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880, 882 (La.1993).

Under the manifest error rule, the reviewing court does not decide whether hnthe factual findings are right or wrong, but whether they are reasonable. Lizana v. Gulf Coast Pain Institute, 2003-1672 (La.App. 1st Cir.5/14/04), 879 So.2d 763, 765. If the fact finder’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Sistler v. Liberty Mutual Insurance Co., 558 So.2d 1106, 1112 (La.1990). Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 883.

Furthermore, when factual findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the trier of fact’s findings; for only the fact finder can be aware of the variations in the demeanor and tone that bear so heavily on the listener’s understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

IV.LAW AND DISCUSSION

A. Causation

The Workers’ Compensation Act (“the Act”) provides coverage to an employee for personal injury by accident arising out of and in the course of his employment. La. R.S. 23:1031(A). An employee must prove the chain of causation required by the workers’ compensation statutory scheme as adopted by the legislature. Harrison v. Baldwin Motors, 2003-2682 (La.App. 1st Cir.11/3/04), 889 So.2d 313, 316, writ denied, 2005-0249 (La.4/1/05), 897 So.2d 609. He must establish that the accident was work-related, the accident caused the injury, and the injury caused the disability. Id.

Initially, a workers’ compensation claimant has the burden of establishing by a preponderance of the evidence that an accident occurred on the job and that he Insustained an injury. Grant v. Assumption Parish School Bd., 2001-0272 (La. App. 1st Cir.3/28/02), 813 So.2d 622, 624. “Accident” is statutorily defined in the Act as '“an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La. R.S. 23:1021(1). Next, the claimant must establish a causal connection between the accident and the resulting disability by a preponderance of the evidence. Harrison, 889 So.2d at 316,

A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Bruno v. Harbert International, Inc., 593 So.2d 357, 361 (La.1992). Corroboration of the worker’s testimony may be provided by the testimony of co-workers, spouses, friends, or by medical evidence. Id. Barring circumstances that cast suspicion on the reliability of the worker’s uneontradict-ed testimony, the WCJ should accept the testimony as true when determining whether the worker has discharged his burden. Brown v. Kwok Wong, 2001-2525 (La.App. 1st Cir.12/20/02), 836 So.2d 315, 319. Whether a claimant has carried his or her burden of proof and whether the claimant’s testimony is credible are questions of fact to be determined by the WCJ. Bruno, 593 So.2d at 361.

When an employee suffered from a pre-existing medical condition, he may still prevail if he proves that the accident aggravated, accelerated, or combined with the disease or infirmity to produce death or disability for which compensation is claimed. Peveto v. WHC Contractors, 93-1402 (La.1/14/94), 630 So.2d 689, 691, citing Walton v. Normandy Village Homes Ass’n, Inc., 475 So.2d 320, 324 (La.1985). In Walton, the Louisiana Supreme Court recognized the existence of a presumption to aid plaintiffs in cases involving a pre-existing condition, wherein it stated:

[W]hen an employee proves that before the accident he had not manifested disabling symptoms, but that commencing with the accident the disabling symptoms appeared and manifested themselves thereafter, and that there is either medical or circumstantial evidence indicating a reasonable possibility of causal connection between the accident and the activation of the disabling condition, the employee’s work injury is presumed to have aggravated, accelerated or combined with his preexisting disease or infirmity to produce his disability.

Walton, 475 So.2d at 324-325.

Once the employee has established the presumption of causation, the opposing party bears the burden of producing evidence and persuading the trier of fact that it is more probable than not that the work injury did not accelerate, aggravate or combine with the pre-existing disease or infirmity to produce his disability. Peveto, 630 So.2d at 691. Medical testimony, albeit significant, is not conclusive as to the issue of causation, which is generally the ultimate fact to be decided by the court after weighing all the evidence. See Haughton v. Fireman’s Fund American Ins. Co., 355 So.2d 927, 928-929 (La.1978).

In this case, the issue before us is whether the WCJ erred in finding that Ms. Roberts met her burden of proving that she sustained a work-related accident that caused and/or aggravated her back problems, thus warranting the award of workers’ compensation and medical benefits, including the surgical procedure recommended by Dr. Donner. We find the record before us is devoid of any evidence casting serious doubt upon Ms. Roberts’ version of the incident on April 3, 2003. Furthermore, Ms. Roberts’ testimony regarding the accident and injury was corroborated by the circumstances following the incident, in that Ms. Roberts reported the accident and injury to her supervisor, who prepared an accident report, |1sshe immediately sought medical treatment with Dr. Plaisance, and the MRI of Ms. Roberts’ back, administered within days of the accident, indicated an L4-5 disc herniation. Thus, Ms. Roberts’ testimony concerning the occurrence of the accident itself and the resulting injury was entitled to great weight, and we conclude that the WCJ was not clearly wrong in determining that an accident occurred which caused and/or aggravated Ms. Roberts’ resulting back problems.

Nevertheless, Thibodaux Healthcare contends that Ms. Roberts’ back problems are attributable solely to her documented pre-existing degenerative back condition, for which she had sought treatment and physical therapy, as opposed to an aggravation of a pre-existing or a new injury. However, the WCJ made a factual determination concerning Ms. Roberts’ pre-acci-dent medical history, that before the accident, she had not manifested disabling lower back symptoms and, further, that commencing with the accident the disabling lower back symptoms appeared and manifested themselves thereafter. Furthermore, the medical opinion of Ms. Roberts’ treating physician, indicated that not only is there medical evidence indicating a reasonable possibility of causal connection between the accident and the activation of the disabling back condition, but further, that the accident on April 3, 2003 created a new L4-5 disc herniation. See Walton, 475 So.2d at 324-325.

Although Dr. Cenac believed that there was a “high probability” that the findings on Ms. Roberts’ April 8, 2003 MRI were the normal progression of a prior asymptomatic pre-existing condition at L4-5 as opposed to an aggravation of that condition causally related to the April 3, 2003 incident, the WCJ clearly chose to give more deference to the opinion of Dr. Donner. Thereafter, the WCJ concluded that there was an accident on April 3, 2003, which caused an aggravation of Ms. Roberts’ pre-existing condition, and therefore, awarded Ms. Roberts’ workers’ | ^compensation and medical benefits, including ordering the surgical procedure recommended by Dr. Donner. As the WCJ was presented with two permissible opposing medical views on the issue of causation and the necessary treatment for Ms. Roberts’ injury, her choice between them cannot be manifestly erroneous.

Based on the record before us, we find that there was a reasonable basis for the WCJ to find the testimony of Ms. Roberts was reliable and that both the medical evidence presented and the events following Ms. Roberts’ injury corroborated Ms. Roberts’ claim of a work-related accident. Additionally, we find that a reasonable factual basis existed for the WCJ’s finding that Ms. Roberts met her burden of proving by a preponderance of the evidence that Ms. Roberts’ work-related accident caused an aggravation of her back condition, and therefore an award of workers’ compensation and medical benefits, including surgery, was warranted. Furthermore, our review of the record establishes that the WCJ was not clearly wrong.

B. Penalties and Attorney Fees

Thibodaux Healthcare argues that because it discontinued payment of benefits, as opposed to failing to timely pay benefits, the WCJ erred in assessing it with penalties. Thibodaux Healthcare further contends that it was not arbitrary in discontinuing Ms. Roberts’ benefits, and therefore, the assessment of attorney fees was likewise erroneous.

In this case, the January 21, 2005 judgment awarded penalties and attorney fees as follows:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendant, Thibodaux Healthcare Center, is assessed penalties in the amount of $1000.00 as well as $5000.00 in attorney fees.

At the pertinent time herein, two statutory provisions provided for the award of penalties and/or attorney fees in workers’ compensation cases — La. R.S. 1.23:1201(F) and La. R.S. 23:1201.2. Louisiana Revised Statute 23:1201 provided, in pertinent part, as follows:

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

Additionally, La. R.S. 23:1201.2 provided, in pertinent part, as follows:

Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of all reasonable attorney fees for the prosecution and collection of such claims.

Thus, during the pertinent time period in this case, the applicable statutory authority for assessing an employer with penalties and attorney fees depended on h «whether the employer failed to commence payment of benefits in a timely fashion or discontinued benefits that had been timely paid. Authement v. Wal-Mart, 857 So.2d at 573. In Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41, 45, the Louisiana Supreme Court noted that both penalties and attorney fees were recoverable under La. R.S. 23:1201(F) if the employer or insurer failed to commence payment of benefits timely, to pay continued installments timely, or to pay medical benefits timely, unless the claim was reasonably controverted; however, only attorney fees were recoverable under La. R.S. 23:1201.2 if the employer or insurer arbitrarily discontinued payment of benefits due. Authement v. Wal-Mart, 857 So.2d at 573; see also Cooper v. St. Tammany Parish School Board, 2002-2433 (La.App. 1st Cir.1177/03), 862 So.2d 1001, 1009, writ denied, 2004-0434 (La.4/23/04), 870 So.2d 300.

In this case, Thibodaux Healthcare initially commenced paying Ms. Roberts’ workers’ compensation and medical benefits timely, as required by La. R.S. 23:1201, and therefore, only attorney fees could be recoverable under La. R.S. 23:1201.2 if Thibodaux Healthcare arbitrarily discontinued payment such benefits. However, La. R.S. 23:1203(A) provides that the employer is obligated to “furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of this state as legal.” Thus, a failure to authorize a treatment, including a surgical treatment, can be considered a failure to furnish treatment resulting in the imposition of penalties and attorney fees under La. R.S. 23:1201(F), unless the claim is reasonably controverted. Authement v. Shappert Engineering, 2002-1631 (La.2/25/03), 840 So.2d 1181, 1187. Accordingly, in this case, penalties and attorney fees can be awarded in favor of Ms. Roberts under La. R.S. 23:1201(F) due to Thibodaux Healthcare’s refusal to authorize the surgical procedure recommended by Dr. Donner, provided the claim was not reasonably controverted. A claim is reasonably controverted if the employer has sufficient factual and medical information to counter that presented by the claimant. Hutchison v. Aldworth Co., Inc., 2004-0024 (La.App. 4th Cir.11/10/04), 888 So.2d 1052, 1059, writ denied, 2004-3037 (La.2/18/05), 896 So.2d 38.

Based on the record before us, we find a reasonable factual basis existed for the WCJ to find that, when Thibodaux Healthcare refused to authorize the surgery recommended by Ms. Roberts’ treating physician, Dr. Donner, it did not have sufficient factual and medical information to counter that presented by Ms. Roberts and Dr. Donner, and to conclude that the claim for surgical treatment was not causally related to the accident. When Dr. Donner recommended surgery, Thibodaux Healthcare’s initial response was to request Dr. Donner consider acupuncture ■ as an alternative to surgery. Thereafter, Thibodaux Healthcare obtained a second medical opinion by Dr. Pribil, who not only acknowledged that the surgical procedure recommended by Dr. Donner was appropriate, but further suggested Ms. Roberts might need a more complex surgical' procedure. Thibodaux Healthcare also ignored a subsequent letter indicating that not only was the surgery necessary, but that a delay in Ms. Roberts’ treatment in this regard would make her prognosis worse and place her at risk for developing other medical problems. Even Dr. Cenac, who saw Ms. Roberts well over a year after Dr. Donner recommended surgery, never stated that the surgery was not necessary, but rather, merely opined that he would not recommend the surgery until further testing could be performed on Ms. Roberts.

Thibodaux Healthcare contends that it based its decision to refuse to authorize the surgery (and to terminate Ms. Roberts’ workers’ compensation and | ismedical benefits) on Ms. Roberts’ past medical records, which allegedly revealed a past medical history of back problems. However, there is no evidence in this record that Thibodaux Healthcare ever obtained any medical evidence to counter the opinion of Dr. Donner (set forth in his August 14, 2003 letter) which clearly indicated that, notwithstanding the minor disc protrusion at L4-5 noted on the March 26, 1998 CT scan and the reported complaint on of lower back pain (with primary radiation into the right leg), his present treatment of Ms. Roberts (and for which he was recommending the surgical procedure) was “for left sided leg pain with an obvious compression of the left L5 nerve root from a sizeable disc protrusion.” (Emphasis added). Therefore, Ms. Roberts’ claim for the surgery recommended by Dr. Donner was not reasonably controverted, and Thibo-daux Healthcare’s failure or refusal to authorize the surgery recomihended by Dr. Donner equated to a failure to provide benefits, under La. R.S. 23:1201(F), thus triggering the imposition of penalties and attorney fees.

Moreover, as noted herein-above, La. R.S. 23:1201.2 provided for an award of attorney fees when an employer or insurer arbitrarily, capriciously, or without probable cause discontinued benefits. The purpose of this penal statute is to discourage indifference and undesirable conduct by employers and insurers. Williams, 737 So.2d at 46; Canizaro v. Tangipahoa Parish School System, 2002-1913 (La.App. 1st Cir.8/20/03), 853 So.2d 741, 744. For purposes of imposition of attorney fees for discontinuance of workers’ compensation benefits, “arbitrary and capricious behavior” consists of willful and unreasonable action, without consideration and regard for the facts and circumstances presented, or of seemingly unfounded motivation. Williams, 737 So.2d at 45-46. Whether a refusal to pay is arbitrary, capricious, or without probable cause depends primarily on the facts known to the employer or insurer at the time of its action. Williams, 737 So.2d at 46. The crucial inquiry is whether the employer had articulable and objective reasons for denying or discontinuing the benefits at the time it took that action. Id.; Authement v. Wal-Mart, 857 So.2d at 574.

Based on the record before us, we find a reasonable factual basis existed for the WCJ to find that Thibodaux Healthcare had no reasonable basis to believe that benefits were not due to Ms. Roberts and that its decision to discontinue benefits was a willful and unreasonable action, without consideration and regard for the facts and circumstances of Ms. Roberts’ condition. Thibodaux Healthcare’s decision to discontinue or terminate Ms. Roberts’ workers’ compensation and medical benefits was primarily based on Ms. Roberts’ past medical records revealing her prior back problems and Thibodaux Healthcare’s resulting erroneous conclusion that Ms. Roberts had concealed this information, and therefore, was guilty of fraud in violation of La. R.S. 28:1208. Thus, for approximately one and one-half years, Ms. Roberts did not receive any workers’ compensation benefits because Thibodaux Healthcare concluded that Ms. Roberts committed fraud when an objective inquiry into the matter (ie., a review of her treating physician’s medical records, which included her prior medical records) would have revealed that Ms. Roberts was being treated by Dr. Donner for a new injury and/or an aggravation of a preexisting condition. Furthermore, Thibo-daux Healthcare did not obtain its expert medical opinion that there was a probability that Ms. Roberts’ back problems were the normal progression of a degenerative disease as opposed to an aggravation of a pre-existing condition until well over eight months after it terminated Ms. Roberts’ benefits.

Therefore, after reviewing the record in its entirety, we find that there was sufficient factual information from which to conclude that Thibodaux Healthcare refused to authorize a necessary medical or surgical treatment, which was not | ^reasonably controverted, and further, that it arbitrarily terminated Ms. Roberts’ workers’ compensation indemnity and medical benefits. Therefore, there is a reasonable factual basis for the WCJ’s conclusion that the assessment of penalties and attorney fees against Thibodaux Healthcare was warranted. Furthermore, our review of the record establishes that the WCJ was not clearly wrong in this regard.

V. CONCLUSION

After a thorough of the record, we find a reasonable basis to support the WCJ’s factual determination that Mona Roberts was injured as the result of an accident while in the course of and arising out of her employment with the Thibodaux Healthcare Center, that she suffered an aggravation of a pre-existing back condition which warranted an award of workers’ compensation and medical benefits, including the surgical procedure recommended by Dr. Donner, that Thibodaux Healthcare Center refused to authorize a medical or surgical treatment that was not reasonably controverted, and that Thibodaux Healthcare Center arbitrarily terminated Mona Roberts’ workers’ compensation and medical benefits. Therefore, we find no error in and hereby affirm the January 21, 2005 judgment.

All costs of this appeal are assessed to the defendants/appellants, Thibodaux Healthcare Center, and its insurer, Employer’s Insurance of Wausau.

AFFIRMED.

McCLENDON, J., dissents in part and concurs in part and assigns reasons.

McCLENDON, J.,

concurs in part and dissents in part.

IíAs an appellate court we cannot set aside the trial'court’s factual findings unless we determine that there is no reasonable factual basis for the findings and the findings are clearly wrong (manifestly erroneous). Stobart v. State, Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La. 1993). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Under such circumstances, an appellate court cannot substitute its judgment for that of the trier of fact. Etcher v. Neumann, 00-2282, p. 9 (La.App. 1 Cir. 12/28/01), 806 So.2d 826, 835, writ denied, 02-0905 (La.5/31/02), 817 So.2d 105. Accordingly, I concur with the majority’s affirmance of the trial court’s finding that there was an accident, that claimant was injured as a result of the accident while in the course and scope of her employment with the defendant, that claimant suffered an aggravation of a preexisting back condition, and that claimant is entitled to workers’ compensation benefits including all reasonable and necessary medical treatment.

| ¡.However, I dissent from the majority regarding penalties and attorney fees. Under either a “reasonably controverted” or an “arbitrary and capricious” standard, neither penalties nor attorney fees are warranted in this matter.

The term “reasonably controverted” was discussed in Brown v. Texas La Cartage, Inc., 98-1063, p. 9 (La.12/1/98), 721 So.2d 885, 890, by the Louisiana Supreme Court:

In general, one can surmise from the plain meaning of the words making up
the phrase “reasonably controvert” that in order to reasonably controvert a claim, the defendant must have some valid reason 'or evidence upon which to base his denial of benefits. Thus, to determine whether the claimant’s right has been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under La. R.S. 23:1201, a court must ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed.

Thus, in order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base his denial of benefits. Brown, 98-1063 at p. 8, 721 So.2d at 890. A failure to reasonably controvert a claim requires action of a less egregious nature than that required for arbitrary and capricious behavior. Arbitrary and capricious behavior consists of willful and unreasoning action, without consideration and regard for facts and circumstances presented, or of seemingly unfounded motivation. Stated another way, such behavior arises from unrestrained exercise of the will or personal preference or lacks a predictable pattern. Brown, 98-1063 at pp. 8-9, 721 So.2d at 890.

Claimant’s medical records revealed a past medical history of back problems, including a disc herniation at the L4-5 level on the left, which was the same location as claimant’s injury resulting from the April 3, 2003 accident. Claimant failed to disclose this information, including her testing and treatment, |swhich medical history was later discovered by the defendant. Said past medical history revealed that following complaints of back pain in 1998, claimant underwent a CT scan that established a disc bulge at L4-5. The record also shows that these complaints continued and included a recommendation for physical therapy, none of which claimant reported. Based on these facts, defendant was engaged in a nonfrivolous legal dispute as it possessed medical and factual information to reasonably counter the factual and medical information of claimant. Thus, I believe that the defendant reasonably controverted claimant’s request for surgical treatment. Further, based on the facts and circumstances of this matter, defendant clearly was not arbitrary and capricious in discontinuing claimant’s benefits.

Therefore, I respectfully concur in part and dissent in part.

      . Dr. Judice is now deceased.

      . Sequelae, plural for sequela, is medically defined as "a diseased condition following, and usually resulting from a previous disease.” See Webster's New World Dictionary, Third College Edition.

      . Although the record is not clear as to the exact date Ms. Roberts’ workers’ compensation benefits were terminated, there are references to her benefits being terminated prior to September 30, 2003.

      . On August 27, 2004, the WCJ denied Thibo-daux Healthcare’s motion for summary judgment on the issue of the alleged violation of La. R.S. 23:1208 by Ms. Roberts. Thibodaux Healthcare has not assigned error to the WCJ’s ruling in this regard in this appeal.

      .The propriety of the WCJ’s ruling in this regard is not before us in this appeal.

      . On appeal, Ms. Roberts correctly notes that distinction made between La. R.S. 23:1201(F) and La. R.S. 23:1201.2 regarding what sanctions could be assessed against an employer for certain actions has been repealed and rewritten. Specifically, La. R.S. 23:1201(F) was amended and rewritten by 2003 La. Acts, No. 1204, § 1 and La. R.S. 23:1201.2 was repealed by section 2 of that act. However, La. R.S. 23:1201 was further amended by Act 1204 to include subsection I, the present statutory authority for the payment of penalties and attorney fees when an employer or insurer discontinues payment of compensation benefits. As amended and at present, La. R.S. 23:1201(1), provides in pertinent part, as follows:
      Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims.
      Nevertheless, the workers' compensation penalty provision in effect at the time of the claimant's injury is the provision that applies to the claim for benefits arising out of injury. See Hutchison v. Aldworth Co., Inc., 2004-0024 (La.App. 4th Cir. 11/10/04), 888 So.2d 1052, 1060, writ denied, 2004-3037 (La.2/18/05), 896 So.2d 38. The changes made to La. R.S. 23:1201(F) and 23:1201.2 by 2003 La. Acts, No. 1204 became effective on August 15, 2003. As Ms. Roberts' injury occurred on April 3, 2003, the applicable statutes herein are La. R.S. 23:1201(F) and 23:1201.2, as they existed prior to 2003 La. Acts, No. 1204.

      . However, we note that presently under La. R.S. 23:1201(1), both penalties and attorney fees are recoverable if the employer or insurer arbitrarily and capriciously discontinues payment of workers’ compensation benefits due.

      . We further find no abuse of discretion in the amount of penalties and attorney fees assessed against Thibodaux Healthcare by the WCJ.

      . Although the defendant had alleged a violation of LSA-R.S. 23:1208, the workers’ compensation judge found that claimant did not willfully make a false statement or representation, stating that claimant was a “poor historian.” Defendant has not appealed this finding.


author: WELCH, J. McCLENDON, J.,

text:
    Richard BROWN v. HARMONY, L.L.C.
    No. 2005 CA 0747.
    Court of Appeal of Louisiana, First Circuit.
    March 24, 2006.
    Rehearing Denied May 10, 2006.

      Richard R. Brown, Plaquemine, In Proper Person Plaintiff/Appellant.
    Milton Osborne, Jr., Plaquemine, In Proper Person. DefendanL-in-Motion/Ap~ pellant.
    Brent J. Bourgeois, Corinne M. Blache, Terri Collins, Baton Rouge, for Defendant/Appellee Harmony, L.L.C.
    Before: WHIPPLE, McCLENDON, and WELCH, JJ.

      . According to the payment history report in the record, Brown received 60 indemnity payments of $269.46 each.

   WELCH, J.

^Appellants challenge the judgment of a Workers’ Compensation Judge (WCJ) imposing sanctions against them for violations of LSA-C.C.P. art. 863. We affirm.

FACTUAL AND PROCEDURAL HISTORY

In 1996, Richard Brown (Brown) was allegedly injured in an accident at the Georgia Gulf facility in Plaquemine, Louisiana, while in the course and scope of his employment with Harmony Corporation, the predecessor to defendant, Harmony, L.L.C. (Harmony). Brown filed a claim for workers’ compensation benefits and received medical benefits totaling $14,247:87, as well as indemnity benefits totaling $16,167.60.

In addition to his workers’ compensation claim, Brown filed a tort suit against various defendants. Harmony intervened in those proceedings, seeking full reimbursement from the tort defendants for all workers’ compensation benefits it had paid in connection with the injuries Brown sustained in the accident. Harmony and Brown subsequently entered into an agreement compromising and settling their disputes. According to the terms of the agreement, Brown was to receive the sum of $175,000.00 from the tort defendants and Harmony agreed to waive its reimbursement claim. In consideration of the sum paid and Harmony’s waiver of its reimbursement claim, Brown, who was represented by counsel, agreed to release Harmony from any and all claims he had against Harmony arising out of the accident at the Georgia Gulf facility. This settlement was approved by judgment of the WCJ on October 27,1999.

On October 14, 2002, almost three years after the settlement had been |sapproved, Brown filed a new claim for workers’ compensation benefits against Harmony, claiming that he had not received any indemnity or medical benefits as a result of the accident. Brown also contended no medical treatment had been authorized, he suffered from an occupational disease, his Workers’ Compensation rate was incorrect, his benefits had been terminated or reduced, and medical treatment had not been authorized. Harmony responded by filing peremptory exceptions pleading the objections of res judicata and prescription. According to Harmony, Brown’s claims for benefits had been compromised in the earlier settlement agreement. In addition, Harmony contended that Brown’s claims were prescribed because no benefits had been paid to Brown for more than three years before he filed his claim in 2002.

The exceptions were set for hearing on November 14, 2003; however, no opposition was filed to the exceptions, and neither Brown nor his attorney, Milton Osborne, Jr. (Osborne), appeared at the hearing. After allowing Harmony to present its evidence, the WCJ rendered judgment dismissing Brown’s claims. A judgment to that effect was signed on December 15, 2003, and notice of the judgment was mailed to Brown through his attorney on December 19, 2003. No appeal was taken from this judgment, and the judgment is now final.

On December 24, 2003, Harmony filed a motion for sanctions against both Brown and Osborne pursuant to LSA-C.C.P. art. 863. After a hearing, the WCJ rendered judgment against Brown and Osborne, awarding sanctions to Harmony in the amount of $5,685.26, with legal interest until paid. A judgment to that effect was signed on March 3, 2004; Brown and Osborne filed a motion for devolutive appeal challenging that judgment on May 19, 2004.

Brown filed an appellate brief in proper person after he apparently decided to terminate Osborne’s representation of him. However, despite the fact that Osborne was named as a judgment debtor in the judgment awarding sanctions, he did not file any brief in this court. Therefore, on February 10, 2006, this court ordered Osborne to file a brief with this court or his appeal would be dismissed. Osborne filed his brief with this court on February 15, 2006.

DISCUSSION

The motion for appeal filed by Brown and Osborne specifically referenced the March 3, 2004 judgment imposing sanctions against them. However, neither appellant has raised any assignments of error pertaining to the issue of sanctions. Instead, appellants have attempted to challenge the earlier settlement between the parties, which was approved by the WCJ pursuant to LSA-R.S. 23:1272 on October 27, 1999. The judgment approving the settlement is no longer appealable as the delays for challenging it have elapsed. See LSA-C.C.P. art. 2087. Therefore, the 1999 judgment has acquired the authority of the thing adjudged, and the court of appeal has no jurisdiction to alter that judgment. Lay v. Stalder, 99-0402 (La. App. 1st Cir.3/31/00), 757 So.2d 916, 919. Because the appellants have failed to raise (or brief) any issues regarding the judgment actually before us, this appeal presents nothing for our review. Thus, we affirm the March 3, 2004 judgment.

| sIn its brief to this court, Harmony has requested additional attorney fees for work performed by its attorney in this appeal. However, Harmony failed to request the increase in accordance with the proper appellate procedure. Article 2133 of the Louisiana Code of Civil Procedure requires an appellee to answer an appeal whenever he demands damages against the appellant. Harmony did not file an answer to this appeal. Accordingly, Harmony is not entitled to an increase in attorney fees for defending this appeal. See Allstate Ins. Co. v. Reid, 2004-1620 (La.App. 1st Cir.11/30/05), 934 So.2d 56, 64, 2005 WL 3194297.

DECREE

For the reasons assigned above, we hereby affirm the judgment of the WCJ, which imposed sanctions on Richard Brown and Milton Osborne. We further deny the motion to dismiss filed by Harmony, L.L.C. and the motion to supplement the record filed by Richard Brown. All costs of this appeal are assessed to appellants.

MOTION TO DISMISS DENIED; MOTION TO SUPPLEMENT RECORD DENIED; JUDGMENT AFFIRMED.

McCLENDON, J., concurs and assigns reasons.

McCLENDON, J.,

concurring.

|! Arguably, a question exists regarding whether an attorney, such as Mr. Osborne, may be sanctioned under La. C.C.P. art. 863 when he has not signed any pleadings or verifications, but has appeared in the proceedings. However, I concur with the majority opinion, as this issue was not properly before us.

      . Osborne did not represent Brown in the earlier tort proceedings.

      . On May 5, 2005, Harmony filed a motion to dismiss the appeal, contending that the appeal had not been timely filed. Harmony also contended that the appeal should be dismissed for violations of Uniform Rules, Courts of Appeal, Rule 3-1.1 and further requested additional attorney fees and costs for having to respond to the appeal. Another panel of this court denied the motion in part, finding that notice of judgment had not been sent by the Office of Workers' Compensation as required, which prevented the appeal delays from running. Thus, the panel found that the appeal was timely. The panel further denied Harmony’s request for damages for frivolous appeal, because such a request must be made by appeal or answer to appeal. Finally, the panel referred the issue of the rule violations to the panel considering the merits of the appeal. Brown v. Harmony, LLC, 2005 CA 0747 (La.App. 1st Cir.9/9/05). We find that Harmony did not timely file the motion to dismiss the appeal pursuant to LSA-C.C.P. art. 2161. Therefore, we need not address the remaining issue of rule violations and we deny Harmony’s motion to dismiss.

      . Brown has filed a motion to supplement the record on appeal with evidence concerning his challenge to the 1999 judgment. Because that judgment is no longer appealable, we deny the motion.