author: EZELL, Judge. COOKS, J.,

text:
    Marcus RYAN v. ZURICH AMERICAN INSURANCE COMPANY, et al.
    No. CA 2007-618.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.

      Raleigh Newman, Attorney at Law, Lake Charles, LA, for Plaintiff/Appellant, Marcus Ryan.
    Geraldine Fontenot-Roberts, Attorney at Law, Baton Rouge, LA, for Defendants/Appellees, Zurich American Insurance Company, Custom Ecology, Inc., Raymond Johnson.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

| Marcus Ryan appeals a jury’s award of damages for past wage loss, loss of future earning capacity, pain and suffering, mental anguish,. and loss of enjoyment of life. Mr. Ryan was injured when he was rear-ended by Raymond Johnson who was driving an eighteen-wheeler owned by Custom Ecology, Inc. and insured by Zurich American Insurance Company. He claims that he is entitled to an increase in the award of these damages as a result of the injuries sustained in the accident.

FACTS

On October 15, 2003, Mr. Ryan was traveling home from Vinton Middle School where he was working for Lewing Construction Company, Inc. as a carpenter. He was stopped behind another vehicle when he noticed an eighteen-wheeler approaching behind him. Mr. Ryan realized that the eighteen-wheeler was going to hit him, so he braced himself for the impact. He had no pain immediately after the accident.

Mr. Ryan went to work, but he complained to his superintendent that he had headaches and his neck was hurting. After three to four hours of working, the company sent him home.

On October 20, 2003, Mr. Ryan went to see Dr. Damon Cormier, a chiropractor. At that time, Mr. Ryan’s primary complaints were cervical pain which radiated into his right shoulder in addition to headaches. Dr. Cormier began treatment and last treated Mr. Ryan on December 29, 2003. Dr. Cormier released Mr. Ryan to return to work with no limitations. In doing so, Dr. Cormier wrote a letter to Mr. Ryan’s attorney, explaining that he had released Mr. Ryan but that Mr. Ryan still had some soreness and stiffness. Dr. Cor-mier explained that carpenters generally want to return to work with no limitations. Mr. Ryan returned to work at Lewing | ^Construction in January 2004.

Continuing to experience problems, Mr. Ryan saw Dr. Clark Gunderson, an orthopedic surgeon, on March • 31, 2004. Mr. Ryan reported to Dr. Gunderson that the pain in his neck was constant and that he had headaches once or twice a week. He also had back pain which did not radiate into the legs. The pain was made worse by daily activities. An MRI showed slight bulging in the neck. Dr. Gunderson referred Mr. Ryan to physical therapy. Dr. Gunderson testified that he thought Mr. Ryan was going to be okay and told him to continue working.

After several weeks, Mr. Ryan’s back pain had disappeared but he continued to have neck pain. By June 29, 2004, the pain was moderately severe and constant in the neck and right shoulder and arm. Dr. Gunderson explained that he initially thought the pain was originating in the neck, but he decided to get an MRI of the shoulder on December 7, 2004. The MRI indicated an injury to the labrum, which is part of the lining of the shoulder that acts as a stabilizer to keep the shoulder in the joint as well as an attachment for the ligaments. Dr. Gunderson referred Mr. Ryan to Dr. David Drez, another orthopedic surgeon.

Dr. Drez saw Mr. Ryan on January 10, 2005. Initially, injections and therapy were administered. However, neither helped. On June 22, 2005, Dr. Drez performed an arthrosporic procedure to repair the tear in the labrum. Dr. Drez explained that Mr. Ryan did not do well after surgery. He had difficulty with the range of motion in his shoulder despite intense physical therapy. A second surgery became necessary to release the scar tissue and was performed on February 22, 2006. Dr. Drez last treated Mr. Ryan on August 25, 2006, at which time he found Mr. Ryan had reached maximum medical improvement.

| ^During his treatment with Dr. Gunder-son, Mr. Ryan developed numbness in his right hand. On January 25, 2005, Dr. Gunderson recommended an EMG, which was performed on February 17, 2005. The EMG indicated a moderately severe right carpal tunnel syndrome. Dr. Gunderson recommended a carpal tunnel release procedure which was performed on March 10, 2005.

Two days prior to the EMG, Mr. Ryan tested positive at work for marijuana. He received notice of termination from Lew-ing Construction on February 17, 2005. Since that time he has not worked for Lewing Construction.

Dr. Drez suggested that a functional capacity evaluation (FCE) would be beneficial to determine Mr. Ryan’s physical limitations. Following his release from Dr. Drez, an FCE was performed on Mr. Ryan on September 7 and September 8, 2006. The FCE results indicated that Mr. Ryan could work but only at a light-duty level.

Following the carpal tunnel release procedure and the two shoulder surgeries, Mr. Ryan did not work. About a week before trial, Mr. Ryan began working as a security guard.

Trial was held before a jury on October 17 and 18, 2006. The jury returned a verdict finding that the accident had caused Mr. Ryan’s injuries. He was awarded $72,000 in past medical expenses, $6,000 for loss of past wages, nothing for loss of future earning capacity, $24,000 for pain and suffering, $24,000 for mental anguish, and $24,000 for loss of enjoyment of life. Aside from the award for past medical expenses, Mr. Ryan appeals the other awards of damages, claiming them to be contrary to the law and evidence.

JjLOST WAGES

Loss of Past Wages

Mr. Ryan claims that the jury’s award of $6,000 for loss of past wages is contrary to the law and evidence. He argues that all doctors agreed the he was unable to work from the date of the carpal tunnel surgery on March 10, 2005, to the date of trial because of his severe shoulder problem and surgeries, not because of a failed drug screen.

Under Louisiana jurisprudence, damages for lost wages may be established by any proof which reasonably establishes the claim, including the plaintiffs own reasonable testimony. While claims for past lost wages must be established with some degree of certainty, they need not be proven with mathematical certainty, but only by such proof as reasonably establishes the plaintiffs claim. This award may be supported by the plaintiffs detailed and uncorroborated testimony.

Smith v. Ebey, 04-889, pp. 6-7 (La.App. 3 Cir. 12/29/04), 896 So.2d 143, 148 (citations omitted).

At trial, Mr. Ryan admitted that he tested positive for marijuana in August 2002 while employed by Lewing. However, he was rehired by Lewing a month later. Prior to his shoulder surgery, Mr. Ryan tested positive again for marijuana in February 2005. He did not go back work for Lewing after this failed drug test.

Subsequent to his release from Lewing at this time, Mr. Ryan had the carpal tunnel release surgery in March 2005 and the two shoulder surgeries in June 2005 and February 2006. In August 2006, Dr. Drez found that Mr. Ryan had reached maximum medical improvement, and the FCE indicated that Mr. Ryan could return to work at a light-duty level.

Mr. Ralph Lewing, owner of Lewing Construction Company, testified on behalf of Mr. Ryan. Acknowledging that Mr. Ryan had been fired in February 2006 | ^because he failed a drug test, Mr. Lewing testified that Mr. Ryan showed a lot of potential and he would have rehired Mr. Ryan as he had once before. Mr. Lewing then went on to explain that he could not hire someone with a permanent disability due to the nature of a carpenter’s work. Chris Arceneaux, a superintendent with Lewing Construction, worked with Mr. Ryan prior to his automobile accident. Mr. Arceneaux testified that Mr. Ryan was a good worker.

Dr. Gunderson testified that when he first started treating Mr. Ryan, he found it hard to believe that Mr. Ryan wanted to continue to work given his shoulder problems. Dr. Gunderson testified that Mr. Ryan was unable to work for a while after the carpal tunnel release. He opined that Mr. Ryan could have returned to work in May 2005. However, the following month, the first shoulder procedure was performed on Mr. Ryan.

According to Dr. Drez, Mr. Ryan’s shoulder condition was a lot better after the second surgery in February 2006. Dr. Drez stated that Mr. Ryan could not work when he was treating him. Dr. Drez released him from his care on August 25, 2006. While Dr. Drez opined that Mr. Ryan could return to his work as a carpenter, he testified that he would rely on the results of the FCE since it is based on objective data. He specifically testified that the FCE conclusions are more important than what he thinks. Manny Gala, the occupational therapist who performed the FCE, testified that Mr. Ryan gave a good effort during the testing.

The jury awarded Mr. Ryan $6,000 for loss of past wages. Each side presented evidence of the value of Mr. Ryan’s wage loss. Kenneth Boudreaux, an economist, testified on behalf of the Defendant. Mr. Boudreaux did not believe that Mr. Ryan had suffered any past wage loss because he was terminated from his job. Obviously, the jury disagreed with this opinion since it did make an award for loss of past wages. |fiMr. Boudreaux then went on to testify that “if Mr. Ryan was unable to work due to the accident after he was terminated in February of '05, and if there would have been a job for him to work but for an inability, physical inability caused by the accident, then I have no trouble that there is a past loss.”

Dr. Charles Bettinger, and economist and statistician who testified on behalf of Mr. Ryan, calculated Mr. Ryan’s loss of past wages from March 10, 2005 to October 16, 2006 at $61,429. This was based on $15 an hour that Mr. Ryan was earning at the time of the accident in addition to $3.50 an hour in fringe benefits and 6.2% for the employer’s contribution to social security. Since Mr. Boudreaux did not make any calculations for loss of past wages, Mr. Boudreaux used the same information and calculated Mr. Ryan’s wage loss at $60,622 at Plaintiffs counsel’s request.

Defendants argue that the $6,000 awarded covered the time that Mr. Ryan initially did not work following the accident while he was seeking treatment with a chiropractor, a little less than three months. No evidence of the amount of wage loss during this time period was offered by either party.

Based on this evidence we find that the jury erred in awarding only $6,000 for loss of past wages. The jury found that Mr. Ryan’s injuries were caused by the accident. The evidence clearly established that Mr. Ryan was unable to work following his surgeries even if he had not been terminated. We increase the award to $60,622 as the amount that is clearly established by the record as to Mr. Ryan’s loss of past wages.

Loss of Earning Capacity

The jury failed to award any damages for loss of earning capacity. Mr. Ryan claims that this was in error as he is now relegated to light-duty work which effects 17his future earning capacity.

Earning capacity in itself is not necessarily determined by actual loss; damages may be assessed for the deprivation of what the injured plaintiff could have earned despite the fact that he may never have seen fit to take advantage of that capacity. The theory is that the injury done him has deprived him of a capacity he would have been entitled to enjoy even though he never profited from it monetarily.

Folse v. Fakouri, 371 So.2d 1120, 1124 (La.1979); See also, Carrier v. Nobel Ins. Co., 01-983 (La.App. 3 Cir. 2/6/02), 817 So.2d 126, writs denied, 02-728 (La.5/10/02), 815 So.2d 843; 02-739 (La.5/10/02), 815 So.2d 845.

At the time of the accident, Mr. Ryan was a member of the union and was working with Lewing Construction under a four-year apprenticeship program to become a journeyman carpenter. He was hired by Lewing Construction in November 2001 and was close to completing the apprenticeship before his surgeries. Mr. Ryan was earning $15 an hour. As a journeyman he would be entitled to rates of $17.97 an hour.

As previously stated, Dr. Drez testified that he would rely on the results of the FCE as to Mr. Ryan’s limitations. Dr. Stanley Foster, an orthopedic surgeon who testified on behalf of the Defendants, agreed that Mr. Ryan could return back to work within the guidelines of the FCE.

No one disputes that Mr. Ryan would not be able to work as a carpenter now. Even though Mr. Lewing stated that he would have rehired Mr. Ryan, he testified that he could not hire someone with a permanent disability due to the nature of the work.

The Defendants presented the testimony of Karen Keller, a vocational rehabilitation counselor, to establish that Mr. Ryan was capable of returning to other employment earning at least as much, if not more, than he earned before. She was of the opinion that Mr. Ryan was capable of vocational retraining and returning to gainful employment earning $40,000 a year. The jobs she thought were appropriate | ^considerations included a computer assisted design drafter, an electronics technician, and a hot shot driver.

Admittedly, the first two suggestions would require retraining of two years. While these two jobs were light-duty, there was a math component to them. Testing established that Mr. Ryan was performing math at a seventh grade level. Glenn Hebert, the vocational rehabilitation counselor who testified on behalf of Mr. Ryan, testified that Mr. Ryan could not master the mathematical skills of a design drafter.

Ms. Keller explained that a hot shot driver is someone who usually runs items" back and forth to oilfields and other areas. She testified that the research indicates that the drivers are not required to assist with loading and unloading but could offer no specific job description. Ms. Keller could not specifically indicate which of these jobs were actually available.

Mr. Hebert indicated that Mr. Ryan wanted a direct placement in a job because he had no funds to support his wife and three children. Mr. Hebert testified that he did not believe that Mr. Ryan could master the mathematical skills involved with the jobs listed by Ms. Keller. Mr. Hebert also stated that the hot shot driver was considered medium work with occasional climbing of stairs and ladders and scaffolding and would not fall into the limitations provided by the FCE. He further testified that hot shot driving did require loading and unloading at times. Mr. Hebert felt that the most Mr. Ryan could earn was $6.50 an hour up to $7.00 an hour given his limitations.

We find that the evidence clearly establishes that Mr. Ryan would have been rehired at Lewing Construction but for the injuries he suffered as a result of the accident. "While there was evidence presented that he could seek employment in fields within his limitations that provide the sanie income, we find that the evidence |9was not very realistic. For some of the jobs, Mr. Ryan would have to be retrained which means he would be out of work for at least another two years. Furthermore, we find it unreasonable to believe that he has the ability to be retrained in these fields given his learning ability. Due to Mr. Ryan’s physical limitations, we also find that the other jobs listed by Ms. Keller were not feasible options. All doctors agreed that they would rely on the FCE as indicative of his physical abilities. The FCE specifically limited Mr. Ryan from any overhead activities or overreaching. He could not be in a position that required repetitive use of his right hand, and his endurance level was poor. We find that Mr. Ryan clearly established that his earning capacity was diminished as a result of the accident, and the jury erred in failing to award any damages.

Mr. Boudreaux found that Mr. Ryan would have suffered a loss of $647,470 if he could earn $7.00 an hour. This amount did not include any calculation for loss of fringe benefits or the employer’s contribution to social security and assumed that Mr. Ryan had a work-life expectancy of 30.83 years as of the time of the accident. The amount of loss would be $783,170 if Mr. Ryan worked to age sixty-five.

Mr. Bettinger calculated Mr. Ryan’s total wage loss at $1,249,727. This amount was based on a residual earning capacity of $7.00 an hour. Mr. Bettinger also assumed that Mr. Ryan would work to age sixty-five and used a real interest rate of two-and-a-half percent. This amount also included fringe benefits and the employer’s contribution to social security which amounts to a total of $317,420. Additionally, $61,429 in loss of past wages is included. Adjusting the calculated amount since loss of past wages has already been discussed, the total amount of loss of future earning capacity as calculated by Mr. Bet-tinger is $1,188,298.

| inOne of the biggest differences between Mr. Boudreaux’s calculation and Mr. Bet-tinger’s calculation is Mr. Bettinger’s inclusion of fringe benefits and the employer’s contribution to social security. Mr. Bettinger also used a higher percentage rate for Mr. Ryan’s earnings to increase in accordance with the inflation rate.

Mr. Ryan’s employment at the time of the accident provided fringe benefits, and his employer contributed to social security. There is no doubt that Mr. Lewing would have continued to employ Mr. Ryan. Right before trial, Mr. Ryan had secured a job as a security guard earning $5.50 an hour. He testified that he received no insurance or fringe benefits from this job. Mr. Ryan had consistently worked for Mr. Lewing and was a few months shy of journeyman status. Under the circumstances, we find the jury erred in failing to award damages to Mr. Ryan for loss of earning capacity. Based on the evidence in the record, we find that $1,188,298 is an appropriate award for loss of earning capacity.

GENERAL DAMAGES

Mr. Ryan also appeals the award of general damages of $24,000 for pain and suffering, $24,000 for mental anguish, and $24,000 for loss of enjoyment of life. He claims that these awards are inadequate given the circumstances of this case.

The assessment of damages by a jury is a determination of fact. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). The role of an appellate court in reviewing an award of general damages is not to decide what it considers to be an appropriate award, but rather, to review the exercise of discretion by the trier of fact. Id. The adequacy of the award should be determined by facts or circumstances particular to the case under consideration. Id.

In Reviewing the record, we do not find that the jury abused its discretion in the awards of general damages. We, therefore, affirm these awards.

For the reasons discussed, the award for loss of past earnings is increased to $60,622. Furthermore, we reverse the jury’s failure to make an award for loss of earning capacity and award $1,188,298. In all other respects the judgment is affirmed. Costs of this appeal are assessed to the Defendants/Appellees.

AFFIRMED AS AMENDED IN PART; REVERSED IN PART; AND RENDERED.

COOKS, J., concurs and assigns reasons.

COOKS, J.,

concurs.

|J concur in the majority’s decision, but note that I would increase the awards for pain and suffering, mental anguish and loss of enjoyment of life.


source: Caselaw Access Project

author: PICKETT, Judge.

license: Public Domain

text:
    SMART DOCUMENT SOLUTIONS, LLC v. Michael B. MILLER.
    No. 07-670.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.
    Rehearing Denied Dec. 26, 2007.

      Michael B. Miller, Miller & Miller, Crowley, LA, for Defendant/Appellant, Michael B. Miller.
    Brian F. Blackwell, Blackwell & Associates, Baton Rouge, LA, for Plaintiff/Appel-lee, Smart Document Solutions, LLC.
    Court composed of OSWALD A. DECUIR, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PICKETT, Judge.

hThe defendant, Michael B. Miller, appeals a judgment of the trial court awarding the plaintiff, Smart Document Solutions (SDS), LLC, $4,194.76 plus legal interest from date of judicial demand, for services rendered. We affirm the judgment of the trial court.

FACTS

The defendant, an attorney, subpoenaed medical records from a number of health care providers in the course of his practice. The plaintiff, as agent for the health care providers, answered the subpoenas, supplied the records requested by the defendant, and invoiced him for its service. The defendant accepted the records. Subsequently, the defendant refused to pay the plaintiffs invoices, claiming that he had not issued subpoenas to the plaintiff, but, rather to the various health care providers which used the plaintiffs services. The plaintiff filed suit and was awarded $4,194.76 plus legal interest from the date of judicial demand and all costs. The defendant appeals.

LAW AND DISCUSSION

The trial of this matter took place on February 27, 2007. Although properly noticed, the defendant/appellant failed to appear. The plaintiff proceeded to put on its case. The first witness called was Ms. Lynette Nickel, the clerk of the Crowley City Court, who testified that she was in court the last time the case was called for trial. She stated that the defendant was also present; that the case was continued because the defendant had yet to file his answer; that, not only was the new date announced in open court, but that notice of the new trial date was prepared; and that lathe notice, along with the plaintiffs Amended Petition and Interrogatories were served on the defendant.

The next witness called was Glenn De-ville, the City Marshall, who was also in court when the case was continued. He remembered Mr. Miller being in the court when the new date was set and stated that he served the papers described by Ms. Nickel on the defendant, through his secretary, at the defendant’s office.

The plaintiff then called Ms. Margaret Stevenson, the SDS Operations Director for north, central, and southwest Louisiana, along with north Mississippi and north Texas. Ms. Stevenson explained that medical providers contract with SDS to pull and copy subpoenaed records so that their own employees don’t have to do so. She then identified individually each request (along with its supporting documentation) from Mr. Miller for medical records and the invoice sent to Mr. Miller for processing each request.

The defendant raises six specifications of error on appeal. Assignments 1, 4 and 5 all address one issue — does the plaintiff have a right of action against the defendant. Assignment number five also raises the issue of agency and whether Miller, as agent for his clients, should be held liable for the records he ordered in connection with the representation of his clients. We agree with the trial judge that the plaintiff has a right of action. As discussed more fully below, Margaret Stevenson, an officer of the plaintifficompany who dealt with such records as requested by the defendant in the normal course of business established that SDS was an agent of the medical providers, hired by them to answer requests for medical records. Furthermore, also as discussed below, SDS meets the definition of a “health care provider” as used in R.S. 13:3715.1(G). As either the agent of the health care |4providers it represented or as a defined health care provider, SDS has the right to proceed against the defendant, to whom it provided goods and services.

As to the agency issue, the defendant claims that his clients owe the medical providers for the subpoenaed materials. Although this argument may appear to be technically correct, we find the special relationship between an attorney and his client does not support the defendants argument. We have not found an instance in which a Louisiana court has ruled on this issue, so we have looked to a number of foreign jurisdictions on which to base our conclusion. We are most impressed by the analysis and conclusion from the North Dakota Supreme Court:

[T]he attorney-client relationship differs from the general agency relationship because the attorney-client relationship is subject to an established code of professional responsibility governing members of the Bar, and the attorney, not the client, is in charge of the litigation and determines the services necessary to promote the best interests of the litigation. See Judd & Detweiler v. Gittings, 43 App.D.C. 304 (1915); Molezzo Reporters v. Patt, 94 Nev. 540, 579 P.2d 1243 (1978); Burt v. Gahan, 351 Mass. 340, 220 N.E.2d 817 (1966); Monick v. Melnicoff, 144 A.2d 381 (D.C.Mun.App.1958); Roberts, Walsh & Co. v. Trugman, 109 N.J.Super. 594, 264 A.2d 237 (1970); Brown & Huseby, Inc. v. Chrietzberg, 242 Ga. 232, 248 S.E.2d 631 (1978).
The rationale for this rule was perhaps best stated in Judd & Detweiler v. Gittings, 43 App.D.C. at 310-311:
“While it is true that an attorney is the agent of his client, the relation between them, we think, is such that it calls for some modification of the general rule which the law recognizes as existing between principal and agent. In ordinary transactions, the agent is subordinate to the principal, the principal standing out as the real actor, and the agent merely as a subordinate representative. But the relation between attorney and client is different. The attorney has complete charge of the litigation, is so recognized by the court, and, as such, dominates in all matters pertaining to the conduct of the litigation. ‘While in one sense the client is the principal and the attorney the agent, and while the attorney is professionally and constantly acting for clients, whose names from the records of the courts and other means of publicity are almost |Balways known or may be so, yet there are peculiarities in his case which make it necessary to apply to it with some qualification the general principles of agency. In most cases of agency the principal is what the name imports,-the leading person in the transaction. The agent is, as the term implies, a mere subordinate, important only as the representative of the principal; often representing only one principal. An attorney at law, on the other hand, occupies a position of recognized importance in itself, not infrequently of great prominence before the public, in which he often has a large number of clients, his relations to whom are full of detail, and who are little noticed by the public.’ Heath v. Bates, 49 Conn. 342, 44 Am.Rep. 234. The attorney usually determines what steps are to be taken in his client’s interest, and the acts of the attorney in the conduct of litigation are binding upon the client. We therefore deem the just and equitable rule of law thus established to be that, in the absence of express notice to the contrary, court officials and persons connected, either directly or indirectly, with the progress of the litigation, may safely regard themselves as dealing with the attorney, instead of with the client.”
We hold that when an attorney requests goods or services in connection with litigation for a named client, the law will consider the attorney as the principal and will imply a promise on the part of the attorney to pay the reasonable expenses for the goods or services unless the attorney expressly disclaims liability.

Anheluk v. Kubik, 374 N.W.2d 67, 69-70 (N.D.1985). This rule has been followed in a number of other jurisdictions and we find it most accurately describes the attorney-client relationship in this state. See also St. Louis & Westervelt, Inc. v. Giulini, 176 Misc.2d 99, 673 N.Y.S.2d 820 (N.Y.Sup.Term 1998); Cahn v. Fisher, 167 Ariz. 219, 805 P.2d 1040 (App.1990); Sullivan v. Greene & Zinner, P.C., 180 Misc.2d 491, 689 N.Y.S.2d 622 (N.Y. City Ct.1999); and McCullough v. Johnson, 307 Ark. 9, 816 S.W.2d 886 (1991).

’ The defendant also objects to what he characterizes as an impermissible expansion of the pleadings and the introduction of hearsay evidence relying on Cunningham v. M & S Marine, Inc., 05-805 (La.App. 4 Cir. 1/11/06), 923 So.2d 770. |fiIn Cunningham our colleagues of the fourth circuit stated:

Confirming a default judgment is akin to a trial at which only the plaintiff is present [the situation in the case sub judice]. 1 Frank L. Maraist & Harry T. Lemmon, Louisiana Civil Law Treatise: Civil Procedure § 12.3 (1999).' At such trial, the unopposed plaintiff must comply with a set of special, somewhat strict rules in proving his claim. 19 Frank L. Maraist, Louisiana Civil Law Treatise: Evidence and Proof § 2.9 (1999). The following special rules are pertinent to the present case.
First, the plaintiff is confined to the facts and the theories pled in his petition; he may not expand his pleadings by introducing evidence [which does so] at the confirmation hearing. Thus, the plaintiff is precluded from obtaining a default judgment “different in kind from that demanded in the petition.” La. C.C.P. art. 1703; see Spear v. Tran, 96-1490 (La.App. 4 Cir. 9/18/96), 682 So.2d 267. However, the Louisiana Supreme Court has held that “the pleadings which lead up to the demand, or prayer, upon which a default judgment is based are to be construed no more restrictively than pleadings suggestive of other judgments.” Royal Furniture Co. of Baton Rouge, Inc. v. Benton, 260 La. 527, 532, 256 So.2d 614, 616 (1972).
Second, “[b]ecause at a default confirmation there is no objecting party, ... both plaintiff and the trial judge should be vigilant to assure that the judgment rests on admissible evidence” that establishes a prima facie case. George W. Pugh, Robert Force, Gerald A. Rault, Jr., and Kerry Triche, Handbook on Louisiana Evidence Law 639 (2003 ed.). As a corollary, “[ejxcept as authorized by the Code of Civil Procedure Article 1702, or evidence that fits within one of the exceptions provided by [the Louisiana Evidence] Code, hearsay evidence is inadmissible to confirm a default.” Id.; see La. C.E. art. 1101(A)(providing that “[ejxcept as otherwise provided by legislation, the provisions of this Code shall be applicable to the determination of fact ... in proceedings to confirm a default.”)
Third, depending on the nature of the plaintiffs demand, Article 1702 sets forth several exceptions to the rule against the use of hearsay evidence at the confirmation hearing. One of those pertinent exceptions is that “[wjhen a demand is based upon a delictual obligation, the testimony of the plaintiff with corroborating evidence, which may be by affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case, shall be admissible, self-authenticating, and sufficient proof of such [delictual] demand.” La. C.C.P. art. 1702(B)(2).

\nId. at 773. In such a case as the one sub judiee, “an appellate court is restricted to determining whether the record contains sufficient evidence to prove a prima facie case.” Id. at 773. We find the plaintiff proved a prima facie case.

The following is also well settled in Louisiana:

La.C.C.P. art. 865 provides the general principle that pleadings are to be “construed as to do substantial justice.” The Louisiana Supreme Court has recently interpreted that provision to require that pleadings be construed “to afford litigants their day in court, to arrive at truth, and to do substantial justice.” Kuebler v. Martin, 578 So.2d 113, 114 (La.1991). Additionally, “pleadings are to be construed in the light of their allegations as a whole and not in view of a detached sentence or paragraph therein standing alone.” Mid-City Investment Co. v. Young, 238 So.2d 780, 784 (La.App. 1st Cir.1970). Pleadings are to be construed liberally since technical rules of pleading no longer apply in Louisiana courts; thus, any doubt concerning the meaning of a pleading must be resolved in favor of the pleader in order to do substantial justice. Boudreaux v. Allstate Finance Corp., 217 So.2d 439, 444 (La.App. 1st Cir.1968). From these statements, the following principle has been derived:
When the pleading in question is construed in its, entirety and with all other matters occurring during trial which relate to the pleading, and it is more reasonable than not to conclude that the adverse party received fair notice and was fairly informed of the pleading’s intended substantive result and procedure by which that result was intended to be accomplished, the pleading will be held to be legally effective and to satisfy the requirements of the Code of Civil Procedure which are raised in objection to the pleading.
Townsend v. Cleve Heyl Chevrolet-Buick, Inc., 318 So.2d 618, 623 (La.App. 2d Cir.1975).

Nicholson & Loup, Inc. v. Carl E. Woodward, Inc., 596 So.2d 374, 385-86 (LaApp. 4 Cir.), units denied, 605 So.2d 1098 (La.1992).

The invoices introduced into evidence were verified by the testimony of Margaret Stevenson, an officer of the plain-tifficompany who dealt with such records in the normal course of business. Thus, her testimony and the invoices were |sadmissible under the business records exemption to the hearsay rule. Furthermore, we do not find that either expanded the pleadings. The pleadings indicated that the defendant owed the plaintiff for medical records which were copied and sent to him at his request. The evidence and testimony substantiated that claim. The judgment obtained by the plaintiff was not “different in kind from that demanded in the petition” and was supported by the evidence and testimony. The plaintiffs amended petition, plus the evidence and testimony submitted at trial clearly establish that the plaintiff provided the defendant with a service (copying) and a product (the copied medical records) at the defendant’s request. The plaintiff is entitled to be compensated for this.

Finally, the defendant argues that the trial court erred in failing to find SDS failed to comply with La.R.S. 13:3715.1(D) and thus the defendant is not liable for payment of the charges billed by SDS. We disagree. Non-compliance with La.R.S. 13:3715.1(D) does not, in itself, provide a party with a basis for refusing to pay for requested and supplied medical records. In fact, the only language in the statute addressing payment for records supports the proposition that the attorney should pay. R.S. 13:3715.1(G) (emphasis ours) states that “[t]he health care provider shall be reimbursed by the person causing the issuance of the subpoena, summons, or court order in accordance with the provisions of R.S. 40:1299.96.” Louisiana Revised Statutes 40:1299.96(B)(1) provides: “ ‘Health care provider’ means a ‘health care provider’ as defined in R.S. 40:1299.41 or a ‘state health care provider’ as defined in R.S. 40:1299.39;” and R.S. 40:1299.41(A)(1) provides - (emphasis ours):

“Health care provider” means a person, partnership, limited liability partnership, limited liability company, corporation, facility, or institution licensed or certified by this state to provide health care or professional services as a physician, hospital, nursing home, community 19blood center, tissue bank, dentist, registered or licensed practical nurse or certified nurse assistant, offshore health service provider, ambulance service under circumstances in which the provisions of R.S. 40:1299.39 are not applicable, certified registered nurse anesthetist, nurse midwife, licensed midwife, pharmacist, optometrist, podiatrist, chiropractor, physical therapist, occupational therapist, psychologist, social worker, licensed professional counselor, licensed perfusionist, or any nonprofit facility considered tax-exempt under Section 501(c)(3), Internal Revenue Code, pursuant to 26 U.S.C. 501(c)(3), for the diagnosis and treatment of cancer or cancer-related diseases, whether or not such a facility is required to be licensed by this state, or any professional corporation a health care provider is authorized to form under the provisions of Title 12 of the Louisiana Revised Statutes of 1950, or any partnership, limited liability partnership, limited liability subpoena, management company, or corporation whose business is conducted principally by health care providers,- or an officer, employee, partner, member, shareholder, or agent thereof acting in the course and scope of his employment.

The testimony of Ms. Stevenson established that SDS answered the subpoenas the defendant caused to be issued to its clients requesting medical records as part of the service SDS provided to its clients. Thus, SDS meets the definition of “health care provider” as used in R.S. 13:3715.1(G).

In sum, we find none of the defendant s assignments of error have merit. We find that in the absence of express notice to the contrary, officers of the court, witnesses, and other persons connected, either directly or indirectly, with an ongoing legal proceeding, may safely regard themselves as dealing with the attorney, instead of with his client.

Accordingly, for the reasons stated above, the judgment of the trial court is affirmed. All costs of this appeal are assessed against the defendant, Michael B. Miller.

AFFIRMED.


author: PAINTER, Judge.

text:
    Mark SAMPSON and Alfreda Coleman Sampson v. DCI OF ALEXANDRIA, et al.
    No. 07-671.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.

      William F. Henderson, Attorney at Law, Alexandria, LA, for Defendant-Appellant, DCI of Alexandria, Inc.
    Mark L. Roberts, McCoy, Roberts & Begnaud, Ltd., Natchitoches, LA, for Plaintiff-Appellee, Mark and Alfreda Sampson.
    Court composed of OSWALD A. DECUIR, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| defendant, DCI of Alexandria (DCI), appeals the trial court’s judgment in favor of the plaintiffs, Mark and Alfreda Sampson, in the amount of $45,495.95 and the court’s denial of its reconventional demand for $20,906.28, representing the balance allegedly due under a building contract.

FACTS AND PROCEDURAL HISTORY

On May 11, 2004, the parties entered a fixed-sum contract to build a house for the Sampsons. Under the term of the contract DCI agreed, in exchange for $90,000.00, to:

“furnish all LABOR, AND TOOLS necessary to construct proposed building according to plans and specifications, provided by owner as specified below:

FOR FOUNDATIONS, FRAMING AND TRIM OUT OF DWELLING

ALL MATERIAL AND EQUIPMENT ARE TO BE FURNISHED BY OWNER. All work to be completed in a workmanlike manner according to standard practices. ANY ALTERATION OR DEVIATION FROM ABOVE SPECIFICATIONS INVOLVING EXTRA COSTS WILL BE EXECUTED ONLY UPON WRITTEN CHANGE ORDERS, AND WILL BECOME AN EXTRA CHARGE OVER AND ABOVE THIS CONTRACT AMOUNT TO BE PAID 50% UPON ACCEPTANCE AND 50% UPON COMPLETION OF EACH CHANGE ORDER. The contractor shall guarantee his work for a period of (1) year from date of final acceptance by the owner. This condition does not invalidate longer periods of warranty for equipment furnished by the manufacturer with longer periods of warranty. It is agreed NO OCCUPANCY OF DWELLING SHALL BE PERMITTED UNTIL FINAL PAYMENT OF CONTRACT & ALL CHANGE ORDERS HAVE BEEN PAID IN FULL. All agreements are contingent upon strikes, accidents, or delays beyond our control. The Contractor will carry General Liability Insurance. Owner to carry fire, tornado, and other necessary insurances. Our workers are fully covered by Workmen’s Compensation Insurance.”

The following is undisputed: Alfreda Sampson tried to buy builder’s risk insurance as required by the contract but found the prices to be prohibitively high. I «When she discussed this with Mike Dunn, sole shareholder and operator of DCI, he offered to obtain the insurance for a better price. He obtained the policy, and the Sampsons paid the premium. However, when Dunn obtained the policy he named DCI as the beneficiary.

Construction began with building materials supplied by the Sampsons. On September 28, 2004, DCI sent an invoice to the Sampsons showing charges as follows:

Foundation in Place $22,500.00
Builders Risk Policy $ 910.00
Termite Company $ 1,153.77
Dirt Work $ 5,500.00
Concrete Finishers $ 4,391.00

The Sampsons made a payment of $30,063.77 on October 1, 2004, which did not include payment of the amount for the concrete finishers, because the Sampsons felt that the contract made DCI responsible for providing that service.

On November 23, 2004, a storm damaged or destroyed the partially constructed house. DCI made a claim against the builder’s risk policy for damages in the amount of $23,221.11. Dunn testified that the claim included amounts as follows:

Materials $5,709.00
Labor to remove and sort damaged materials $3,024.00
Labor to reframe roof $6,430.00
Overhead and supervision $3,350.00
Workers’ compensation and general liability insurance and taxes $3,456.00
Profit $2,201.92

laThese amounts were reduced by the policy deductible of $1,000.00. The insurance company deducted the amount claimed as profit and sent a check for $21,019.19 to DCI. DCI kept the proceeds of the insurance check.

DCI began rebuilding the house, but, on January 12, 2005, another storm destroyed the house, which was eighty-seven percent complete according to DCI’s claim. DCI again made a claim against the builders’s risk insurance for the following amounts:

Materials $45,021.77
Labor $35,697.52
Insurances $10,341.57
Matching Funds $ 1,341.57
Supervision $ 9,000.00
Insurances on Super-vision $ 619.26
Matching Funds on Supervision $ 688.00
Overhead (10%) $10,275.40
Profit $10,275.40
Demolition $ 5,756.00

DCI began rebuilding the house, and on May 23, 2005 sent the Sampsons an invoice showing the following charges:

Framing labor $58,500.00
Concrete Finishers (not included in layout and forming labor) $ 4,391.00
Concrete Finishers for Patio $ 882.00
Lowes for windows $ 2,039.80
Stine Lumber wood for windows $ 310.46
Cobum Supply Stove Top & Chimney Hood $ 2,454.37
Payment Received $68,000.00
Final 10% Due Upon Completion $ 9,000.00

|4On May 31, 2005, the Sampsons paid $60,000.00 but, according to the testimony of Mrs. Sampson, deliberately left out the amounts for the concrete finishers. On July 20, 2005, they made another payment of $8,000.00.

The Sampsons were billed $29,800.00 in connection with the heating and air conditioning installation. The parties .do not dispute that this item was not covered by the contract between the Sampsons and DCI. However, DCI hired the subcontractor, paid them, and billed the Sampsons for the work. DCI admits that it added a $6,000.00 mark-up to the bill for the subcontractor’s work.

After the second storm, while attempting to settle the insurance claim, DCI filed a lien against the Sampsons for $150,557.71. The insurance company sent Dunn a check in the amount of $117,528.74 made payable to Dunn and the mortgage holder, Hancock Bank. The Sampsons filed a petition seeking cancellation of the lien, damages and attorney’s fees for the wrongful filing of the lien, damages for defective workmanship, reimbursement of the value of the salvage materials, and reimbursement of an overpayment made to DCI by the builder’s risk insurer. DCI filed a reconventional demand seeking to recover amounts allegedly still owed to it under the building contract, as well as attorney’s fees.

After a trial on the merits, the court rendered judgment in favor of the Samp-sons in the amount of $45,495.95 plus costs and attorney’s fees. It further denied DCI’s reconventional demands. The court gave extensive written reasons for its decision. DCI appeals.

IfiDISCUSSION

Insurance

We first consider the question of the ownership of the insurance policy and its proceeds as this will determine whether DCI has received full payment. DCI asserts that the trial court erred in finding that the builder’s risk policy covered the Sampsons and that the Sampsons still owed money on the original contract. It argues that the trial court improperly reformed the policy to make it payable to the Sampsons where DCI was the named beneficiary. The trial court found that the insurance proceeds belonged to the Samp-sons and that they were the actual and intended beneficiaries of the policy. After reviewing the evidence of record, we conclude that Dunn and/or DCI breached a fiduciary duty to the Sampsons in its handling of the builder’s risk policy and that the proper remedy for the breach of this duty is an award of the proceeds of the policy, minus appropriate credits for amounts needed to restore the house to its pre-storm condition.

When asked about the builder’s risk insurance, Mrs. Sampson testified that:

I went looking for builders risk and it was extremely expensive. I called Mike [Dunn] up and I explained to him how expensive. Well he said Ms. Sampson I can get builders risk a lot cheaper and just pay me the money.

Dunn testified as follows with regard to the purchase of the builder’s risk policy:

Most of the time, a builders risk is basically a homeowners policy. That’s the reason we try to get it to go back to the homeowner. If they’ll furnish it, which we requested that in this here too (sic). We requested that they purchase it, the builder’s risk. And they decided that we could purchase it at a lesser amount of money. So that’s the reason it came back to us. So when we purchased it they automatically made us a policy holder. And they, we were liable for the premiums on it and all the negotiations that went on.

|fiIt is undisputed that the Sampsons had the responsibility to furnish builder’s risk insurance. It is further undisputed that DCI billed the Sampsons for the premiums on the builder’s risk policy that it obtained and that the Sampsons paid that invoice.

In undertaking to obtain insurance for the Sampsons, DCI and/or Dunn became the mandatary of the Sampsons. “A mandate is a contract by which a person, the principal, confers authority on another person, the mandatary, to transact one or more affairs for the principal.” La. Civ.Code art. 2989. “The mandatary is bound to fulfill with prudence and diligence the mandate he has accepted. He is responsible to the principal for the loss that the principal sustains as a result of the mandatary’s failure to perform.” La. Civ.Code art. 3001. It follows that as a mandatary, Dunn and/or DCI had a fiduciary duty to the Sampsons.

Generally, whether a fiduciary duty exists, and the extent of that duty, depends upon the facts and circumstances of the case and the relationship of the parties. As a basic proposition, for a fiduciary duty to exist, there must be a fiduciary relationship between the parties ...
A fiduciary relationship has been described as “one that exists ‘when confidence is reposed on one side and there is resulting superiority and influence on the other.’” Plaquemines Parish Commission Council v. Delta Development Company, Inc., 502 So.2d 1034, 1040 (La.1987), quoting Toombs v. Daniels, 361 N.W.2d 801, 809 (Minn.1985).
The word “fiduciary,” as a noun, means one who holds a thing in trust for another, a trustee; a person holding the character of a trustee, or a character analogous to that of a trustee, with respect to the trust and confidence involved in it and the scrupulous good faith and candor which it requires; a person having the duty, created by his undertaking, to act primarily for another’s benefit in matters connected with such undertaking.
State v. Hagerty, 251 La. 477, 492, 205 So.2d 369, 374 (1967), quoting 36A C.J.S. Fiduciary, p. 381. One is said to act in a fiduciary capacity “when the business which he transacts, or the money or property which he handles, is not his own or for his own benefit, but for the benefit of |7another person, as to whom he stands in a relation implying and necessitating great confidence and trust on the one part and a high degree of good faith on the other.” Hagerty, 251 La. at 493, 205 So.2d at 374-375, quoting BLACK’S LAW DICTIONARY (4th ed.1951).
The term “fiduciary” is defined in the Uniform Fiduciaries Law, LSA-R.S. 9:3801(2), as follows:
“Fiduciary” includes a trustee under any trust, expressed, implied, resulting or constructive, executor, administrator, guardian, conservator, curator, receiver, trustee in bankruptcy, assignee for the benefit of creditors, partner, agent, officer of a corporation, public or private, public officer, or any other persons acting in a fiduciary capacity for any person, trust or estate.
The Uniform Fiduciaries Law appears in the Civil Law Aneillaries under Code Title XY — Of Mandate. By definition, a mandate is “a contract by which a person, the principal, confers authority on another person, the mandatary, to transact one or more affairs for the principal.” LSA-C.C. art. 2989. The defining characteristic of a fiduciary relationship, therefore, is the special relationship of confidence or trust imposed by one in another who undertakes to act primarily for the benefit of the principal in a particular endeavor. Plaquemines Parish Commission Council, 502 So.2d at 1040; Hagerty, 251 La. at 493, 205 So.2d at 374-375.

Scheffler v. Adams and Reese, LLP, 06-1774, pp. 6-7 (La.2/22/07), 950 So.2d 641, 647-48.

By failing to have the Sampsons listed as the beneficiaries of the builder’s risk policy or to turn the settlement over to them, Dunn failed to fulfill his mandate with “prudence and diligence.”

The fiduciary’s duty includes the ordinary duties owed under tort principles, as well as a legally imposed duty which requires the fiduciary to handle the matter “as though it were his own affair.” Federal Deposit Insurance Corporation v. Caplan, 874 F.Supp. 741, 744 (W.D.La.1995), quoting, Noe v. Roussel, 310 So.2d 806, 819 (La.1975). “In addition, the ‘fiduciary may not take even the slightest advantage, but must zealously, diligently and honestly guard and champion the rights of his principal against all other persons whomsoever, and is bound not to act in antagonism, opposition or conflict with the interest of the principal to even the slightest extent.’” Id. It is this duty of loyalty which distinguishes the fiduciary relationship. Gerdes, 953 F.2d at 205. “A cause of action for breach of fiduciary duty requires proof of fraud, ^breach of trust, or an action outside the limits of the fiduciary’s authority.” Gerdes, 953 F.2d at 205.

Beckstrom v. Parnell, 97-1200, pp. 8-9 (La.App. 1 Cir. 11/6/98), 730 So.2d 942, 947-48.

The Sampsons have shown a breach of the trust they placed in DCI. DCI failed in its duty not to take the slightest advantage of that trust. The trial court correctly concluded that the Sampsons should have received the proceeds of the insurance policy, because this is what would have occurred had DCI “zealously, diligently and honestly guard[ed] and champion[ed] the rights” of the Sampsons.

Having so found, it is necessary to consider DCI’s claims as to amounts due under the contract and for items provided over and above those for which they contracted. DCI is entitled to its full contract payment of $90,000.00 plus the costs of rebuilding the premises to its pre-storm condition and any items it provided over and above those included in the contract, i.e., those items which were to be directly paid by the Sampsons.

1)Heating/Air Conditioning/Electrical Payment

DCI argues that it is due the full $29,800.00 it charged the Sampsons for the heating/air conditioning/electrical work for which it paid the subcontractor. It is undisputed that this work was not covered by the building contract and was to be paid by the Sampsons in addition to the contract price.

DCI obtained the services of a subcontractor on behalf of the Sampsons. The subcontractor charged DCI $23,800.00. DCI then added $6,000.00 to the bill and sent an invoice for $29,800.00 to the Samp-sons. The trial court reduced the amount owed to DCI to the $23,800.00 charged by the subcontractor, stating that: “Dunn admitted that the Sampsons were unaware of, and did not agree to, the mark-up. | ¡¡Given that Mr. Dunn had no contractual right to arbitrarily charge the Sampsons an additional $6,000.00, the Court finds that DCI is only entitled to the actual value of the subcontracting work, or $23,800.00.” In light of the evidence at trial, we find no error in this determination by the trial court. Therefore, DCI is entitled to payment of only $23,800.00 for the heating/air conditioning/electrical subcontract.

2) Salvage Materials

DCI further asserts that the trial court erred in finding that the Sampsons were entitled to the value of the building materials salvaged from the ruined buildings. The court found that those materials belonged to the Samp-sons and placed a value of $10,000.00 on them. Trial testimony revealed that after the storms destroyed the house, DCI allowed its employees to take the salvaged building materials. The Sampsons paid for the building materials and were the owners of the house. We agree with the trial court that the salvaged material belonged to them. However, no value of the materials was established at trial. As a result, the Sampsons failed to carry their burden of proof in regard to this claim. Therefore, the court erred in awarding the Sampsons a credit of $10,000.00 for the salvaged materials.

3) Concrete Finishers

DCI asserts that the trial court erred in finding that a payment by the Sampsons in the amount of $8,000.00 was not a payment of a charge for concrete finishers. DCI argues that the payments of $60,000.00 and $8,000.00 made on May 31, 2005 and July 20, 2005, respectively, can not be imputed to anything other than the second invoice dated May 23, 2005.

We agree with the trial court that:

DCI must pay for the concrete finishers under the contract. The contract states that DCI will furnish all labor and tools necessary to construct the |infoundation. The Court finds that the concrete finishers are labor costs that are necessary to construct the foundation. Mr. Dunn admitted at trial that the concrete finishers are related to the foundation work and that there was no exclusion for the concrete finishers under the contract.

“A thing is not owed when it is paid or delivered for the discharge of an obligation that does not exist. La.Civ.Code. art. 2300. Therefore, under the building contract, the Sampsons did not owe any amount for concrete finishers. As a result, any payment credited against that amount was a credit against a debt not owed. La.Civ.Code art. 2299 states that: “A person who has received a payment or a thing not owed to him is bound to restore it to the person from whom he received it.” Accordingly, the trial court correctly excluded the charges for the concrete finishers from the amounts owed to DCI.

Amounts Paid and Amounts Due

The record establishes amounts due and amounts paid as follows:

PAYMENTS TO DCI:
Payments by the Sampsons: $115,943.77
Insurance Proceeds Paid to DCI: $138.647.93
Total Payments to DCI: $254,491.70
EXPENSES OF DCI NOT COVERED BY CONTRACT PRICE
Labor to return construction to pre-storm condition:
9,504.00 First Storm: f ry
35,640.00 Second Storm: L/J
40,846.27 Materials: fry W
5,756.00 | uDemoIition: * fy yj J
2,000.00 Insurance Deductibles:
ADDITIONAL COSTS:
23,800.00 Heating and Electrical
5,500.00 Dirt Work
910.00 Insurance Premiums
Termite Treatment $ 1,158.77
Windows: $ 2,039.80
Window Casing Materials: $ 310.00
Stove Top and Hood: $ 2,454.37
TOTAL EXPENSES: $128,996.65
CONTRACT PRICE: $ 90,000.00
TOTAL DUE DCI: $218,996.65
REIMBURSEMENT DUE FROM DCI TO SAMPSONS: $ 35,495.05

Attorney’s Fees

DCI argues that the trial court erred in ordering it to pay attorney’s fees in connection with the wrongful issuance of the lien and in failing to order the Samp-sons to pay attorney’s fees for breach of contract.

With regard to the attorney’s fees for the failure to timely cancel the hen, DCI argues that the lien was proper because the Sampsons owed them money. Having found that, in fact, DCI owed a reimbursement to the Sampsons, we reject this argument. The trial court correctly found that the Sampsons are entitled to attorney’s fees incurred in connection with their claim for wrongful filing of and/or failure to timely cancel the lien put on their property.

|12Having found no breach of contract on the part of the Sampsons, we find no error in the trial court’s denial of attorney’s fees in this regard.

CONCLUSION

For these reasons, the judgment of the trial court is amended to reflect that DCI owes a reimbursement of $35,495.05 to the Sampsons. In all other respects, the judgment is affirmed. Costs of this appeal are assessed to DCI.

AFFIRMED AS AMENDED.

      . Where amounts or items were not made the basis of an assignment of error, disputed, or considered by this court, we have used amounts taken from the trial court’s reasons for judgment after review of the record for verification. Errors in computation made by the trial court have been corrected.


text:
    Patricia A. BUSH v. AVOYELLES PROGRESS ACTION COMMITTEE and Louisiana Workers’ Compensation corporation.
    No. 07-685.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.

      Robert A. Mahtook, Jr., Marc D. Mor-oux, Mahtook & LaFleur, Lafayette, Louisiana, for Defendant-Appellant, Avoyelles Progress Action Committee and Louisiana Workers’ Compensation Corporation.
    Norris J. Greenhouse, Greenhouse Law Office, L.L.C., Marksville, Louisiana, for Plaintiff-Appellee, Patricia A. Bush.
    Court composed of OSWALD A. DECUIR, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| defendants, Avoyelles Progress Action Committee and Louisiana Workers’ Compensation Corporation (LWCC), appeal the judgment of the Workers’ Compensation Judge (WCJ) ordering that Defendants authorize a surgery recommended by Claimant’s treating physician, finding that Defendants’ behavior in refusing to authorize the surgery was arbitrary and capricious, and awarding penalties in the sum of $2,000.00 and attorney’s fees in the sum of $5,000.00. For the following reasons, we affirm the judgment of the WCJ in its entirety.

FACTUAL AND PROCEDURAL BACKGROUND

Claimant, Patricia A. Bush (Bush), was employed by Avoyelles Progress Action Committee as Assistant Executive Director. On May 14, 2003, as part of her employment duties, Bush was attending a seminar at Argosy Casino in Baton Rouge, Louisiana. While there, she slipped and fell in the ladies’ room and injured her neck, right arm, lower and upper back, and right hip. She reported the accident to the Executive Director of Avoyelles Progress Action Committee and to an employee of the conference center. She was immediately seen by an EMT who applied an ice pack to her right wrist. Bush stayed at the conference but reportedly developed pain in her upper back later that night. Bush continued to work after the accident.

On May 16, 2003, after returning home from the conference and continuing to have pain and swelling, Bush went to the emergency room at Avoyelles Hospital and complained of pain to her right wrist and upper and mid-back around her shoulders. X-rays were taken, and she was given pain medication and instructed to follow up with her family physician. She saw Dr. Bryan C. McCann, her general practitioner, on May 21, 2003. She related the details of the slip and fall and her complaints of 12pain. Dr. McCann noted that he had treated her for injuries to her neck and right shoulder from an automobile accident in November of 2000 but that she had been well since he last saw her in November of 2001. Dr. McCann treated her with injections of anti-inflammatory medications and ordered an MRI of the thoracic spine. The MRI was performed on May 22, 2003, and was interpreted as showing mild degenerative disc changes from T2 through T6 with slight increased thoracic kyphosis (also referred to as “humpback”). Dr. McCann continued treating her conservatively for the next several months with injections and massage therapy.

On December 20, 2003, Bush sought treatment from Dr. Yvel Moreau, an orthopedist, after she reportedly developed severe spasm in her mid back which caused her to fall and fracture her right elbow. Dr. Moreau treated the elbow fracture and referred Bush to Dr. Louis C. Blanda, an orthopedic surgeon, for treatment of her neck and back. Dr. Moreau, however, ordered an MRI of the cervical spine before Bush saw Dr. Blanda. This MRI was performed on January 16, 2004 and was interpreted as showing moderately severe cervical spondylosis at C4-5 with moderate bilateral bony neuroforaminal narrowing as well as moderate cervical spondylosis at C5-6 with mild bilateral bony neuroforami-nal narrowing at that level. Dr. Blanda indicated that spondylosis is a degenerative condition which would have pre-exist-ed the May 14, 2003 accident.

Dr. Blanda first saw Bush on February 17, 2004, and she complained of injury and pain in her lower back and neck. There was some spasm on palpation in the neck. Dr. Blanda reviewed the films of the MRI of the cervical spine taken January 16, 2004. Dr. Blanda saw Bush several times over the following months. During this time, she complained of numbness in her hand and continued to attend physical [ atherapy. On May 18, 2004, EMG/NCV of the right upper extremity were performed and interpreted as “essentially normal.” EMG/NCV of the bilateral upper extremities performed on November 30, 2004, indicated low grade physiologic C6 changes bilaterally with a right C7 component. Through September 28, 2004, Bush’s complaints of numbness increased and began to involve both arms. Dr. Blanda ordered further EMG testing, which was done in December of 2004. Dr. Blanda related that this testing showed that the numbness was coming from the neck.

Defendants sought a second opinion from Dr. G. Gregory Gidman. Dr. Gidman examined Bush on November 23, 2004. Dr. Gidman conducted an examination of the cervical spine, upper extremities, and lumbar spine. He also ordered x-rays of the pelvis, thoracic spine, and lumbar spine, which he interpreted as normal. He also reviewed reports from the MRI of the cervical spine performed on January 16, 2004 and from the MRI of the thoracic spine performed on May 22, 2003. Based on his examination, Dr. Gidman was of the opinion that no surgical intervention was necessary and that there was no need for any repeat electrical studies of the upper extremities. He recommended conservative treatment consisting of home therapy, home cervical traction, nonsteroidal anti-inflammatory medication, and mild analgesics. However, Dr. Gidman did assign a ten percent whole body impairment from the subject injury.

Defendants then requested an IME, and the Office of Workers’ Compensation appointed Dr. Thad S. Broussard to perform the examination. Dr. Broussard saw Bush on February 22, 2005. Dr. Broussard reviewed the reports of the radiographic studies but not the films themselves. Based on his examination and the history of contusion and sprain of the cervical and lumbar spine, Dr. Broussard’s impression |4was that Bush was suffering from spon-dylosis but that she had reached maximum medical improvement. Dr. Broussard also indicated his opinion was that there was nothing in the records that he had reviewed at that time to indicate that surgery was required; however, he did state that it would be malpractice for a treating physician not to review any films prior to making a recommendation as to surgery. Dr. Broussard also indicated that if the symptoms worsened, there might be some indication of progression such that Bush would be considered a surgical candidate.

Dr. Blanda ordered a second MRI of the cervical spine, which was performed on May 23, 2005, and was interpreted as showing a subluxation (or forward slip) at C4-5 with central disc protrusion. Dr. Blanda testified in his deposition that this may or may not have been present when the MRI of the cervical spine dated January 16, 2004 was taken. Dr. Blanda specifically ordered that the May 2005 MRI be taken with a stronger machine. Further, in Dr. Blanda’s opinion, the first MRI was taken soon after the injury and it can take months for the “full picture” to develop due to the progressive protrusion or herniation of the discs. Dr. Blanda also recommended a cervical myelogram, but approval was denied based on Dr. Gidman and Dr. Broussard’s opinions that Bush was not a surgical candidate. On June 7, 2005, based on his diagnosis of an unstable disc herniation at C4-5 and spondylosis and central disc bulging at C5-6, Dr. Blanda then recommended a three level surgery.

Based on the second opinion from Dr. Gidman and the IME report from Dr. Broussard, Defendants refused to authorize the surgery recommended by Dr. Blan-da. None of the subsequent studies were provided to either Dr. Gidman or Dr. Broussard.

Bush continued to work and filed a petition for authorization of medical treatment and for penalties and attorney’s fees on November 29, 2005. Following | ¡¡trial, the WCJ rendered judgment in favor of Bush, ordering Defendants to authorize the surgery recommended by Dr. Blanda. The judgment also awarded penalties in the amount of $2,000.00 based on the finding that Defendants’ conduct in refusing to authorize the surgery was arbitrary and capricious. Attorney’s fees in the amount of $5,000.00 were also awarded. The WCJ, however, denied Bush’s claim for payment of a Massage Therapy Clinic Bill in excess of $750.00 as well as her claim for penalties and attorney’s fees in connection therewith. Defendant appeals, asserting that the WCJ was manifestly erroneous in its conclusions that surgery was necessary and that the necessity for surgery was related to the work-related accident as well as in its assessment of penalties and attorney’s fees. Bush has neither answered the appeal nor filed her own appeal. Finding no manifest error in the WCJ’s finding regarding the medical necessity of surgery or in the imposition of penalties and attorney’s fees, for the reasons that follow, we affirm the judgment in its entirety.

DISCUSSION

Standard of Review

“A workers’ compensation judge’s finding as to whether a requested medical treatment is necessary is factual in nature.” Figgins v. Wal-Mart, 06-806, p. 3 (La.App. 3 Cir. 11/15/06), 945 So.2d 153, 156, writ denied, 06-2977 (La.2/16/07), 949 So.2d 421. Accordingly, our review in this case is governed by the manifest error standard of review. Smith v. Louisiana Dep’t of Corr., 93-1305 (La.2/28/94), 633 So.2d 129. We are also guided by the principal that “where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.” Thornton v. Louisiana Plastic Indus., Inc., 39,105, pp. 5-6 (La.App. 2 Cir. 12/15/04), 889 So.2d 1226, 1229. We must review the record as a whole, and if the WCJ’s findings are reasonable in light of that record, we may not reverse. Id.

Medical Necessity of Cervical Surgery

Defendants contend that Bush failed to carry her burden of proving the necessity of the surgery at issue or, at the very least, left the evidence in equipoise regarding the subject. Again, Defendants rely upon the second opinion of Dr. Gidman and the IME performed by Dr. Broussard, as well as evidence that Bush suffered a prior neck injury. Defendants further rely upon the deposition testimony of their expert witness, Dr. Mark Tyler Stephan, a diagnostic radiologist. Dr. Stephan was asked to compare the cervical MRIs obtained in 2001, 2004, 2005, and 2006. Dr. Stephan did not examine Bush. Dr. Stephan testified that there was no progression or significant changes of the abnormalities at the C4-5 and C5-6 levels when comparing the 2004 and 2005 MRIs. Defendants contend that Dr. Stephan’s testimony directly refutes Dr. Blanda’s recommendation for surgery. Based on our review of the record in its entirety, we disagree.

In order to recover the cost of the surgery, Bush must prove, by a preponderance of the evidence, that the expense is reasonably necessary for the treatment of a medical condition caused by a work-related injury. Steven v. Liberty Mut. Ins. Co., 509 So.2d 720 (La.App. 3 Cir.1987). It is also well settled that greater weight is ordinarily given to the testimony of a treating physician as opposed to that of a physician who examines the plaintiff for diagnostic purposes only. Fitch v. Vintage Petroleum, Inc., 94-346 (La.App. 3 Cir. 11/2/94), 652 So.2d 998, writ denied, 95-438 (La.3/30/95), 651 So.2d 847. This is because the treating physician is more plikely to know the patient’s symptoms and complaints due to repeated examinations and sustained observations. Moreover, causation is not necessarily a medical conclusion, and the ultimate determination as to whether a plaintiff has proved the causation of his disability is made by the courts and not by medical experts. Martin v. H.B. Zachry Co., 424 So.2d 1002 (La.1982).

In this case, Dr. Gidman and Dr. Brous-sard, both of whom saw Bush only once and only for diagnostic purposes at the insistence of Defendants, found no necessity for surgery. Bush’s treating physician, Dr. Blanda, recommended surgery after the examinations conducted by Dr. Gidman and Dr. Broussard and after further testing was done. Despite the recommendation for surgery and additional testing, Defendants did not refer Bush back to Dr. Gidman or Dr. Broussard. We agree with the WCJ that Defendants cannot “blindly rely on a previous beneficial sounding report when they gather subsequent information that indicates there’s a continuing problem.”

Defendants further contend that Bush failed to meet her burden of proving that the need for surgery was related to the subject accident rather than to a preexisting condition. We are mindful, however, that even if a pre-existing condition exists, workers’ compensation benefits are still available if the work-related accident aggravates or accelerates it. Guidry v. Serigny, 378 So.2d 938 (La.1979). Evidence that Bush may have been treated for pre-existing neck pain or that the spon-dylosis pre-existed the subject accident does not prove the absence of a connection between the accident and the need for surgery. See Hosli v. Rent-A-Center, Inc., 06-1466 (La.App. 4 Cir. 4/11/07), 957 So.2d 207, writ denied, 07-1018 (La.8/31/07), 962 So.2d 439.

|sDr. McCann testified that he treated Bush for injuries sustained in an automobile accident in November of 2000 but that he stopped treating her for those complaints on November 21, 2001 and did not see her again until May 21, 2003 (just days after the subject accident). Dr. McCann was of the opinion that the complaints he treated Bush for were caused by the subject accident.

There was some evidence that Bush had about forty-eight, intermittent chiropractic treatments between June of 1997 and December of 2002 with a diagnosis of cervical neuritis by the chiropractor. Even considering this, Dr. Blanda was of the opinion that if she didn’t have the symptoms before accident and then they developed right after, it was related to the accident. Furthermore, when asked whether the intermittent complaints before the accident compared with constant progressive complaints after the accident made any difference, Dr. Blanda responded that this would fit with his conclusion that Bush probably had an aggravation or worsening of the pre-existing problems secondary to this accident. Even Dr. Broussard testified that, based on history, the accident in question would have caused Bush to become symptomatic. As to causation, Dr. Stephan indicated that he would defer to other physicians who had examined the patient. Dr. Allen S. Joseph, a neurosurgeon who examined Bush on July 18, 2006, testified that when he reviewed the x-rays, he saw the sort of expected progression of arthritis rather than changes from trauma but that the accident in question accelerated the progression.

After considering all of the above-mentioned testimony of all the physicians, reviewing all of the medical reports and the record in its entirety, and considering the sequence of events, we find that there is a reasonable factual basis for the WCJ’s determination that the surgery recommended by Dr. Blanda is necessary, is causally | ¡^connected to the work-related accident, and is to be authorized by Defendants. We cannot say that the WCJ’s decision to accept the testimony of Dr. Blanda over that of Dr. Gidman and Dr. Broussard was manifestly erroneous. Therefore, we affirm the WCJ’s rulings in these respects.

Penalties and Attorney’s Fees

Defendants also assert that the WCJ committed manifest error in awarding penalties and attorney fees, contending that they reasonably controverted Bush’s demand for the recommended surgery. The determination as to the imposition of penalties and attorneys fees is a question of fact, and the WCJ’s finding in this regard will not be disturbed on appeal absent manifest error. Wiltz v. Baudin’s Sausage Kitchen, 99-930 (La.App. 3 Cir. 6/19/00), 763 So.2d 111, writ denied, 00-2172 (La.10/13/00), 771 So.2d 650. In order to determine whether an employer or insurer has fulfilled its duty to furnish medical benefits, we must consider whether the employer or insurer had sufficient factual and medical information to reasonably counter the factual and medical information presented by the workers’ compensation claimant. Gibson v. Dynamic Indus., Inc., 96-1605 (La.App. 3 Cir. 4/2/97), 692 So.2d 1320.

Defendants cite only a scant amount of evidence in an effort to show that they reasonably controverted Bush’s request for surgery. Defendants point to Dr. Gidman’s second opinion and to Dr. Broussard’s independent medical examination. The opinions of these two physicians are discussed in great detail above, and we again note that these physicians saw Bush before Dr. Blanda made his recommendation for surgery and were not provided with reports of testing performed subsequent to their examinations. Defendants also rely on assertions that Bush suffered from a pre-existing condition and that her present condition was inevitable |10based thereon. However, as we have said, a preexisting condition alone does not foreclose receipt of workers’ compensation benefits, and there was testimony that the subject accident aggravated and accelerated her pre-existing condition.

For these reasons, we agree with the WCJ that the Defendants did not reasonably controvert Bush’s claim. Accordingly, the workers’ compensation judge did not err in awarding penalties and attorneys fees in favor of Bush. We affirm the WCJ’s award of $2,000.00 in penalties and $5,000.00 in attorney’s fees.

DECREE

For the reasons stated above, the WCJ’s judgment is affirmed in its entirety. Costs of this appeal are assessed to Defendants-Appellants.

AFFIRMED.


author: EZELL, JUDGE. COOKS, J.,

text:
    Debra JACKSON v. CONAGRA POULTRY COMPANY.
    No. WCA 07-465.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.
    Maurice Blake Monrose, Hurlburt, Pri-vat & Monrose, Lafayette, LA, for Defendant/Appellee, ConAgra Poultry Company.
    George Arthur Flournoy, Flournoy, Doggett & Losavio, Alexandria, LA, for Plaintiff/Appellant, Debra Jackson.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
   EZELL, JUDGE.

11 Debra Jackson appeals the decision of the workers’ compensation judge that Pilgrim’s Pride did not owe penalties and attorney fees for incorrect or untimely payment of supplemental earnings benefits (SEB). For the following reasons, we affirm the decision of the workers’ compensation judge.

This case has its roots in a previous decision of the court, Jackson v. ConAgra Poultry, 02-492 (La.App. 3 Cir. 3/5/03), 839 So.2d 1079, writ denied, 03-986 (La.5/30/03), 845 So.2d 1054, wherein we awarded Ms. Jackson SEB of $783.96 per month based upon a zero wage earning capacity. The ConAgra facility where Ms. Jackson worked was purchased by Pilgrim’s Pride, who now takes the place of ConAgra in this suit. Back due benefits were paid in a lump sum through June 30, 2003. Pilgrim’s Pride then began making monthly payments to Ms. Jackson in the amount of $723.64, based on a faulty calculation using the appropriate weekly wage. Pilgrim’s Pride began paying this amount in July 2003. In September of that year, Ms. Jackson began work at Evergreen Presbyterian Ministries, although she failed to report her wages to Pilgrim’s Pride. Pilgrim’s Pride continued to pay Ms. Jackson $723.64 monthly to the end of November, 2003. Then, after three months without payment, a lump sum of $2,170.92 was paid to Ms. Jackson for the months of January, February, and March.

Ms. Jackson filed this suit, seeking penalties and attorney fees for alleged incorrect and untimely payments. Pilgrim’s Pride filed a reconventional demand for the recovery of overpayments of SEB to Ms. Jackson. After careful consideration and analysis of the facts of this case, the workers’ compensation judge ruled that because |¡>Pilgrim’s Pride had been essentially prepaying benefits to Ms. Jackson, there never became a situation wherein she did not have the correct amount of benefits at the time payment was due. In fact, the prepayments resulted in $2,148.26 in overpayments of SEB to Ms. Jackson. The workers’ compensation judge awarded no penalties and attorney fees to Ms. Jackson and awarded Pilgrim’s Pride $2,148.26 for the overpayment. From this decision, Ms. Jackson appeals, claiming as her sole assignment of error that the workers’ compensation judge erred in refusing to award her penalties and attorney fees for incorrect and untimely payments. We disagree.

Louisiana Revised Statutes 23:1201(0) states: “Installment benefits payable pursuant to R.S. 23:1221(3) shall begdme due on the fourteenth day after the employer or insurer has knowledge ofithe compensa-ble supplemental earnings benefits on which date all such compensation then due shall be paid.” Failure to pay timely subjects the liable party to a penalty together with reasonable attorney fees, unless the claim is reasonably controverted or if such nonpayment results from conditions beyond the defendant’s control. La.R.S. 23:1201(F)(2).

Ms. Jackson claims that the payments for July and August of 2003 were incorrect — that she was paid $723.64, rather than the $783.96 she was owed — so she should be awarded penalties and attorney fees. However, after ah examination of the law and facts, this argument is disingenuous at best. As SEB in this mátter were to be paid monthly, under La.R.S. 23:1201(C), $783.96 in SEB for July were due on August 14, 2003. The same amount for August was due September 14, 2003. Pilgrim’s Pride, however, made a payment of $723.64 on July 1, August 1, and August 29, 2003. Thus, as of the August 14, 2003 due date for July’s benefits, Pilgrim’s Pride had already overpaid SEB by $663.32 ($723.64 x 2 payments— $783.96 due). After making another payment on August 29, Pilgrim’s Pride had laQverpaid by $603 ($663.32 credit + $723.64 payment — $783.96 due). Therefore, Ms. Jackson was never owed any unpaid benefits at the times payment was due. Instead, as noted above, she had in fact received more than she was entitled to for the months of July and August. Ms. Jackson is clearly not entitled to penalties and attorney fees for being paid more than she was owed, before it was due.

Similarly, Ms. Jackson claims that she is owed penalties and attorney fees for untimely benefits for January, February, and March of 2004. She claims she was owed $207.73 for January, $116.68 for February, and $93.92 for March. However, Pilgrim’s Pride made additional payments of $723.64 on October 1 and November 3 and 20, 2003, despite the fact that it had already overpaid SEB, and the fact that Ms. Jackson was earning wages at Evergreen. Ms. Jackson admits that by December 31, 2003, all SEB obligations had been met and that Pilgrim’s Pride had overpaid by $1,718.26. Therefore, Ms. Jackson again was not owed any unpaid benefits when the credit awarded to Pilgrim’s Pride is taken into account. In fact, Pilgrim’s Pride had still overpaid Ms. Jackson $1,299.93 after those three months of SEB are taken out of the original credit. Ms. Jackson can not claim late payment for these months, as Pilgrim’s Pride had overpaid its obligation months in advance. See Bossier Elec. v. Cubley, 35,852, 35,853 (La.App. 2 Cir. 6/14/02), 821 So.2d 685.

The workers’ compensation judge correctly ruled that Pilgrim’s Pride was not arbitrary or capricious in paying benefits to Ms. Jackson. Therefore, she is owed no penalties and attorney fees. The decision of the workers’ compensation judge is, accordingly, affirmed. Costs of this appeal are assessed against Ms. Jackson.

AFFIRMED.

COOKS, J., dissents and assigns written reasons.

COOKS, J.,

dissenting.

hi respectfully disagree with the majority opinion finding Ms. Jackson’s employer does not owe penalties and attorney’s fees for incorrect or untimely payment of SEB and awarding the employer $2,148.26 in overpayments. Allowing the employer to arbitrary discontinue SEB for three months and then avoid the statutory penalty by claiming an overpayment is in direct conflict with this court’s opinion in, Simon v. Natchitoches Parish School Board, 03-0942 (La.App. 3 Cir. 2/4/04), 865 So.2d 959. Simon, involved an overpayment of benefits to a school teacher. This court allowed a credit to the School Board for overpayments, but imposed penalties and attorney’s fees under La.R.S. 23:1201(F)(2) and stated: “Furthermore, even if the School Board had based its decision to withhold indemnity payments on the $;,000.00 overpayment of wages, such a unilateral taking of an offset is generally not allowed. See Clark v. Town of Basile, 98-439 (La.App. 3 Cir. 10/7/98), 719 So.2d 730.” SEB was discontinued to Ms. Jackson without explanation for the months of January, February and March 2004. The employer had an obligation under the statute to reasonably controvert the benefits or show the nonpayment resulted from conditions over which the employer or insurer had no control. Pilgrim’s Pride did neither. I find the Simon case is controlling in this case and therefore respectfully dissent from the majority opinion.

      . In our previous decision, this court ordered ConAgra to pay a weekly wage of $180.91. Pilgrim's Pride incorrectly multiplied this number by four to get a $723.64 monthly rate, rather than using the correct calculation— multiplying the weekly rate by fifty-two weeks and dividing that number by twelve months,