author: GUIDRY, J. KUHN, J.,

text:
    Janie ALLEN (Matthews) v. STATE of Louisiana, Louisiana School for the Deaf.
    No. 2005 CA 1076.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 2006.

      Janie Allen, Baton Rouge, In Proper Person Plaintiff-Appellant.
    Charles C. Foti, Jr., Attorney General, John G. Morgan, Assistant Attorney General, Baton Rouge, Counsel for Defendant-Appellee Louisiana School for the Deaf.
    Before: KUHN, GUIDRY, and PETTIGREW, JJ.
   GUIDRY, J.

^Plaintiff, Janie Allen (Allen), appeals a judgment of the Office of Workers’ Compensation granting an exception raising the objection of prescription to her occupational diseáse claim. For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Allen was employed by the Louisiana School for the Deaf (the School). In February 2003, bats were discovered living inside the warehouse in which Allen worked. After experiencing what she called “sinus/allergy” problems from the smells at work, she requested sick leave. She alleged that her problems ceased once the School removed the bats and chemical smells from the warehouse.

Under the advisement of co-workers, Allen filed a claim form 1008 with the Office of Workers’ Compensation (OWC) on May 7, 2004, seeking workers’ compensation benefits for the alleged illness she developed in 2003. She claims that she began treatment for this illness on March 25, 2003. An amended claim form was filed on August 18, 2004, through Allen’s attorney of record, alleging again that she was first diagnosed for mold/bat guano inhalation on March 25, 2003.

The defendant-appellee, the State of Louisiana, through the Louisiana School for the Deaf, in turn filed an exception raising the objection of prescription. A judgment was rendered granting the exception and dismissing the case with prejudice. Allen now appeals from this judgment.

ASSIGNMENT OF ERROR

In this appeal, Allen contends that the workers’ compensation judge erred in finding that her claim for disability arising from an occupational .disease prescribed.

_[¿)ISCUSSION

Although the exceptor generally bears the burden of proof at the trial of the peremptory exception, when prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show that the action has not prescribed. Mire v. Ranger Plant Const. Co., Inc., 01-2247, p. 4 (La.App. 1st Cir.9/27/02), 835 So.2d 550, 553. Under Louisiana law,

All claims for disability arising from an occupational disease are barred unless the employee files a claim as provided in this Chapter within one year of the date that:
(1) The disease manifested itself.
(2) The employee is disabled from working as a result of the disease.
(3) The employee knows or has reasonable grounds to believe that the disease is occupationally related.

La. R.S. 23:1031.1(E). The Louisiana Supreme Court, in Bynum v. Capital City Press, Inc., 95-1395 p. 5 (La.7/2/96), 676 So.2d 582, 586, interpreted this statute to state that the three factors are not separated, but all are necessary for the prescriptive period to commence. Accordingly, in order to determine when prescription began to run on Allen’s occupational disease claim, a determination must first be made as to when all three elements of La. R.S. 23:1031.1(E) were met. Bynum, 95-1395 at p. 6, 676 So.2d at 586.

The elements relating to the time in which the disease manifested itself and the time in which Allen knew or had reasonable grounds to believe that the disease was occupationally related, according to the record, are not at issue. In Allen’s brief, she states that the bats were discovered living inside the School’s warehouse in February 2003. She also states that the bats’ urine and droppings, the fogging chemicals, along with the “Bat Scat and Snake Away Chemicals” caused her to develop “sinus/allergy” | problems. Additionally, both the originally filed claim form and the amended claim form state that Allen’s treatment for the illness began on March 3, 2003. Lastly, the medical records dated March 25, 2003, state “52 year old white female wheezes and coughs with bat guano.” These facts show that the disease manifested itself in February of 2003, and that Allen had reasonable grounds to believe that the disease was occupationally related.

Additionally, the statute requires that an employee file a claim within one year of the date that claimant is disabled from working as a result of the disease. La. R.S. 23:1031.1(E). Our review of the record discloses that no evidence was submitted to support if or when Allen was actually disabled. Since this element is not evident on the face of the petition, the burden of proof remained with the defendant. Without proof of when Allen was disabled, the defendant has not made the requisite showing of when the prescriptive period commenced. Therefore, the defendant was not entitled to judgment sustaining the exception raising the objection of prescription.

Based on the foregoing, we pretermit Allen’s remaining assignments of error.

CONCLUSION

Accordingly, based on the law and the evidence presented, we reverse the judgment of the OWC and remand this matter for further proceedings. Court costs of $221.45 for this appeal are assessed against the defendant-appellee, State of Louisiana, through the Louisiana School for the Deaf.

REVERSED AND REMANDED.

KUHN, J.,

dissenting.

hi disagree with the majority’s disposition, reversing the dismissal of claimant’s petition for benefits by the Office of Workers’ Compensation (OWC). As the majority correctly states, because prescription was evident on the face of her petition, claimant bore the burden of proving that her claim was not prescribed, i.e., that it was duly interrupted or suspended. See Jonise v. Bologna Brothers, 2001-3230, p. 6 (La.6/21/02), 820 So.2d 460, 464. After correctly stating that all three elements of La. R.S. 23:1031.1 must be established, the majority incorrectly places the burden of proving the element of establishing when claimant was disabled from working onto the Louisiana School for the Deaf, ostensibly because the petition failed to allege sufficient facts to establish that date. On the hearing of the exception, it was incumbent on claimant to produce evidence sufficient to establish the date that she became disabled from working so as to support the second element of her burden of proof. This she did not do and, therefore, OWC properly dismissed her lawsuit. Accordingly, I dissent.


source: Caselaw Access Project

author:
DOWNING, J.
      . GAIDRY, J.,

license: Public Domain

text:
    Charles E. PLUMMER and Mae Etta Plummer Lewis v. Ora Lee Plummer BROWN, Ruth Plummer Hubbard, Joyce Marie Plummer, Joseph Plummer, Irma Jean Plummer and Samuel Paul Plummer.
    No. 2005 CA 1059.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 2006.
    J. Arthur Smith, III, Baton Rouge, Counsel for Plaintiff/Appellee Mae Etta Plummer Lewis.
    Walter C. Dumas, Baton Rouge, Counsel for Defendants/Appellants Ora Lee Plum-mer Brown, Ruth Plummer Hubbard, Joyce Marie Plummer, Joseph Plummer, Irma Jean Plummer & Samuel Paul Plum-mer.
    Ricci C. Ross, Baton Rouge, Counsel for Defendant/Appellee Ellene Williams Plum-mer.
    Before: CARTER, C.J., DOWNING and GAIDRY, JJ.
   DOWNING, J.

1 ¿The defendants appeal a judgment that declared certain sales of immovable property by their mother and deceased father to be donations in disguise or sales for an inadequate price. The judgment recognized the plaintiff/appel-lee’s right to seek collation in a proper proceeding. We pretermit ruling on the judgment at issue, however, because the record contains no transcript. The record indicates that the notes and recordings from which a transcript could have been produced have been destroyed pursuant to La. C.C.P. art. 372 C, which provides in pertinent part as follows: “The court reporter shall retain all notes and tape recordings in civil cases for a period of not less than five years after the end of the trial.” Here, more than five years passed between the trial and the filing of the notice of appeal.

Accordingly, we remand this matter to the trial court for the purpose of re-taking the testimony of the witnesses, if available, in order to complete the record so that we can adequately rule on the appeal. See Willis v. Gulf Bldg. Services of Baton Rouge, Inc., 372 So.2d 635, 636 (La.App. 1 Cir.1979).

We note, however, that in the absence of relevant portions of the transcript or a narrative report, we do not possess the factual basis from which to determine the merits of this matter. In such cases, a reviewing court generally will be relegated to applying the presumption that the trial court’s judgment is supported by competent evidence and affirm the [¿judgment. See Oliver v. Cal Dive Intern., Inc., 02-1122, pp. 7-8 (La.App. 1 Cir. 4/2/03), 844 So.2d 942, 947.

ORDER

Pursuant to La. C.C.P. art. 2161, we remand this matter to the 19th Judicial District Court for the limited purpose of holding a hearing for the purpose of admission of evidence, stipulations, and/or taking testimony in order to correct the record by re-creating the evidence, if possible. If the trial court determines that certain relevant portions of the record cannot be corrected, the trial shall dictate an explanation into the transcript of the hearing or provide a per curiam giving the explanation.

The hearing shall be held within 90 days of this opinion. Within 30 days of the hearing, the Clerk of Court of the 19th Judicial District Court shall supplement the appellate record with the evidence, stipulations, testimony, explanations, minute entries, and/or any other information produced in the trial court in connection with this matter.

REMANDED WITH ORDER

GAIDRY, J., dissents with reason.

. GAIDRY, J.,

dissenting.

1-i This action was instituted on October 24, 1986. After extensive discovery and multiple trial continuances and re-assignments, the trial on the merits was conducted on April 29,1998, with the parties being given thirty days to take the deposition of defendants’ appraiser in lieu of his live testimony. The deposition was not taken within the time allotted, and the trial court issued very detailed reasons for judgment on October 28, 1998. These lengthy reasons set forth detailed findings of fact and summations of relevant testimony and evidence, as well as the trial court’s legal conclusions and citations of applicable authority. At the conclusion of its reasons, the trial court noted that “[j]udgment [was] to be signed accordingly,” a customary reference to the need for preparation and submission of an appropriate judgment to the court by the parties.

|;>On December 22, 2004, over six years after the mailing of the written reasons, plaintiffs counsel circulated among other counsel a proposed judgment reflecting the trial court’s decision. On December 29, 2004, plaintiffs counsel submitted the proposed judgment to the trial court, and also filed a certificate verifying the circulation of the proposed judgment to other counsel prior to its submission. The trial court signed the judgment on December 30, 2004.

On February 28, 2005, defendants filed a motion for devolutive appeal, and the order granting their appeal was signed on March 9, 2005. On April 28, 2005, the trial court’s court reporter filed a certificate in the record, verifying that no stenographic notes or audiotapes of testimony and other trial proceedings had been retained, as over five years had passed since the trial.

Louisiana Code of Civil Procedure article 2130 provides:

A party may request the clerk to cause the testimony to be taken down in writing and this transcript shall serve as the statement of facts of the case. The parties may agree to a narrative of the facts in accordance with the provisions of Article 2131.

In turn, La. C.C.P. art. 2131 sets out the mandatory procedure to follow in the absence of a trial transcript:

If the testimony of the witnesses has not been taken down in writing the appellant must request the other parties to join with him in a written and signed narrative of the facts, and in cases of disagreement as to this narrative or of refusal to join in it, at any time prior to the lodging of the record in the appellate court, the judge shall make a written narrative of the facts, which shall be conclusive. (Emphasis supplied.)

It has long been settled that where there is no written transcript of testimony, the burden rests upon the appellant to comply with the provisions of La. C.C.P. arts. 2130 and 2131 and furnish, as part of the appellate record, either an agreed stipulation of fact or, in the absence of such agreement, a narrative of facts by the trial court. Webre v. Heard, 207 So.2d 880, 881-82 (La.App. 1st Cir.1968). An inadequacy in the record in such respect is imputable to the appellant. Oliver v. Cal Dive International, Inc., 02-1122, p. 7 (La. App. 1st Cir.4/2/03), 844 So.2d 942, 947. Where the appellee does not timely move for dismissal, rather than dismissing the case, the court of appeal can only follow the presumption that where the trial court’s judgment depended on facts, the judgment was supported by competent evidence and should be affirmed. Buckels v. Buckels, 431 So.2d 92, 94 (La.App. 1st Cir.1983). See also Oliver, 02-1122 at p. 8, 844 So.2d at 947.

Clearly, an appellant has the primary duty to secure for the appellate record, at the very least, a narrative of the facts as provided by La. C.C.P. art. 2131. DeLa-neuville v. Duplessis, 385 So.2d 385, 386 (La.App. 1st Cir.1980). The obligation of strict compliance with the provisions of La. C.C.P. art. 2131 is imposed upon the appellant as part of his obligation to lodge a complete record with the appellate court. Aube v. American Insurance Company, 254 So.2d 654, 658 (La.App. 4th Cir.1971), writ denied, 260 La. 411, 256 So.2d 292 (La.1972). Here, as was held in Aube, “[t]he failure of the appellant to perfect his record by furnishing a proper narrative of testimony 14Ieaves for this court’s consideration only those facts contained in the trial judge’s written reasons for judgment.” Id.

Louisiana Code of Civil Procedure article 2161 addresses the issue of dismissal of appeals for irregularities. It provides in part that “[a]n appeal shall not be dismissed because the trial record is missing, incomplete or in error no matter who is responsible, and the court may remand the case either for retrial or correction of the record.” But article 2161 has no application here, as dismissal of the appeal is not being sought by any party or even considered by this court.

The majority herein relies upon the case of Willis v. Gulf Building Services of Baton Rouge, Inc., 372 So.2d 635 (La.App. 1st Cir.1979), in determining that remand is warranted. In Willis, we held that La. C.C.P. arts. 2130 and 2131 “are not applicable where the testimony of the witnesses has been recorded or taken down during the trial, but due to mechanical failure or some other cause beyond the control of the parties, all or part of the testimony cannot be transcribed,” citing Kay v. Home Indemnity Company, 301 So.2d 705 (La.App. 3rd Cir.1974). (In Kay, the testimony of certain witnesses was not transcribed due to a malfunction of the court reporter’s recording device.) Relying upon La. C.C.P. arts. 2132 and 2161, we concluded in Willis that remand for the purpose of retaking the testimony was appropriate. See also Floor-N-Wall Distributors, Inc. v. Hirts, 407 So.2d 501 (La.App. 1st Cir. 1981) (Motion to dismiss appeal denied and case remanded for limited purpose of correcting the record by stipulation, | ^preparation of fact narrative by trial court, or retaking of testimony, where transcript of testimony never filed due to disappearance of court reporter.)

The present case clearly does not involve the limited type of situation contemplated by Willis or Kay. Thus, the rule of Willis is inapplicable, and remand is not only unwarranted, but plainly wrong. The delay of over six years and eight months between the trial and the submission of the judgment to the trial court was certainly a circumstance within the control of the parties, and is therefore attributable to the parties. The lawful discarding of the stenographic notes and recorded testimony due to that passage of time is likewise attributable to the parties’ inaction in taking appropriate steps to preserve the trial record for appeal. As a practical matter, the situation is as if no request for recor-dation of the testimony had been made under La. C.C.P. art. 2130. Defendants had the obligation to include appropriate references to the appellate record in their brief, and must be charged with knowledge of the trial transcript’s absence. Given that circumstance, they were bound to follow the provisions of La. C.C.P. art. 2131. Not having availed themselves of the benefit of the latter provisions, they are not entitled to the benefit of La. C.C.P. art. 2132, which simply cannot apply under these facts. To hold otherwise, as the majority does here, is to render meaningless both La. C.C.P. art. 2131 and the jurisprudential presumption of evidentiary support for the trial court’s judgment. Article 2132 was clearly not intended to apply where the failure to utilize the procedure provided in article 2131 is imputable to the appellant. See La. C.C.P. art. 2161.

In Aube, supra, the Fourth Circuit pointedly observed:

The arbitrary granting of a new trial to permit the appellant to overcome a deficiency in the transcript of which he was fully aware, and which is attributable to his lack of diligence, would not only prolong litigation, but would, in fact, unjustly deprive and illegally encroach upon the rights of the opposing litigant.

Aube, 254 So.2d at 658. The same considerations apply here.

It has now been nearly twenty years since the commencement of this action and over eight years since the trial on the merits. The original trial judge has since been elected to this court, and one of the trial attorneys of record is deceased. It is past time that this action was resolved. In my view, the remand of this action for purposes of reconstructing the prior testimony of witnesses from over eight years ago is not only a waste of judicial resources, but probably an exercise in futility. The majority’s action is not only incorrect from a legal standpoint, but perpetuates unjustified delay in bringing closure to this longstanding dispute. I conclude that this action creates a new jurisprudential rule in direct conflict with the applicable codal articles and a long-established jurisprudential rule resting upon solid, defensible juridical principles.

The judgment of the trial court should be affirmed. I respectfully dissent.

      . The defendants are Ora Lee Plummer Brown, Ruth Plummer Hubbard, Joyce Marie Plummer, Joseph Plummer, Irma Jean Plum-mer and Samuel Plummer.

      . Mae Etta Plummer Lewis is the only remaining plaintiff. The other plaintiff, Charles E. Plummer, previously dismissed his cause of action.

      .The trial of this matter was held on April 29, 1998. Judgment was signed on December 30, 2004. The notice of appeal was filed on March 9, 2005.

      . This customary practice was later promulgated, with additional procedural requirements, as Rule 9.5 of the Louisiana Rules for District Courts, adopted April 1, 2002, and as amended subsequently.

      . Defendants filed an amended motion for devolutive appeal on March 14, 2005 to clarify their status as appellants. That motion was also granted by the trial court.

      . Louisiana Code of Civil Procedure article 372(C) provides:
      C. The court reporter shall retain all notes and tape recordings in civil cases for a period of not less than five years after the end of the trial. However, if the record of the trial is fully transcribed, the court reporter shall retain all notes and tape recordings which have been fully transcribed for a period of not less than two years after transcription is completed. The court reporter shall destroy any notes and tape recordings of any matter upon order of a court of competent jurisdiction. (Emphasis supplied.)

      . The court in Kay explained: "It would be inequitable, we believe, to restrict a litigant to the relief provided by Article 2131 in cases where he reasonably believed that all of the testimony was being recorded or taken down during the trial, whereas all or a part of the testimony actually was not recorded or taken down and could not be transcribed, due to a mechanical failure, a misunderstanding or some other cause beyond the control of the litigant." Kay, 301 So.2d at 706. (Emphasis supplied.) The parties are charged with knowledge of La. C.C.P. art. 372(C). See La. C.C. art. 5. Thus, they cannot claim a reasonable belief in the continued existence of the recorded trial testimony.

      . Louisiana Code of Civil Procedure article 2132 provides:
      A record on appeal which is incorrect or contains misstatements, irregularities or in-formalities, or which omits a material part of the trial record, may be corrected even after the record is transmitted to the appellate court, by the parties by stipulation, by the trial court or by order of the appellate court. All other questions as to the content and form of the record shall be preserved to the appellate court.


author: GAIDRY, J.

text:
    Edward BUGGAGE v. ASSUMPTION PARISH SHERIFF DEPARTMENT and Department of Labor.
    No. 2005 CA 1058.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 2006.
    Edward Buggage, Napoleonville, Plaintiff/Appellant In Proper Person.
    Lloyd Fred Schroeder, II, New Orleans, Counsel for Defendant/Appellee Assumption Parish Sheriffs Dept.
    Norbert C. Rayford, J. Jerome Burden, Baton Rouge, Counsel for Defendant/Ap-pellee Department of Labor.
    Before: CARTER, C.J., DOWNING, and GAIDRY, JJ.
   GAIDRY, J.

|2In this case, plaintiff appeals a district court judgment dismissing his petition for judicial review. We affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Edward Buggage, was employed by the Assumption Parish Sheriffs Department (“the Department”) as a correctional officer from January 28, 2002 until November 6, 2003. Buggage was terminated for his failure to comply with the Department’s policy after he left an inmate unattended at the hospital while he (Bug-gage) went to the bathroom. After being denied unemployment benefits pursuant to La. R.S. 23:1601(2) based on the Board of Review’s determination that his termination resulted from his continuous misconduct during the course of his employment, Buggage filed a petition for judicial review in accordance with La. R.S. 28:1634. The trial court affirmed the Board of Review’s decision. This appeal followed, in which Buggage assigned the following errors:

1. Did the Appelle [sic] Assumption Parish Sheriff Department fail in their obligations to provide the state required training for a correctional officer as to dealing with prisoners abroad.
2. Did the administrative law judge base he [sic] opinion upon a legal conclusion as to the definition of “misconduct” bypassing the essentials of LSA R.S. 23:1601 an intent to do wrong must be present and unsatisfactory does not count as a misconduct.
3. Did the District Court Judge exercise prudence in resolving the case after being presented with all necessary evidence and information and case law which should have brought this case to a close nothing was said or done.

DISCUSSION

According to La. R.S. 23:1601, an individual shall be disqualified for unemployment compensation benefits if the administrator finds that he has been discharged by an employer for misconduct connected with his [.^employment. “Misconduct” is defined in the statute as “mismanagement of a position of employment by action or inaction, neglect that places in jeopardy the lives or property of others, dishonesty, wrongdoing, violation of a law, or violation of a policy or rule adopted to insure [sic] orderly work or the safety of others.” La. R.S. 23:1601(2)(a).

Where the employer seeks to deny unemployment benefits because of employee misconduct, the burden of proof is on the employer. Clipps v. State, Dept. of Labor, 02-1780, p. 4 (La.App. 1 Cir. 3/28/03), 844 So.2d 321, 324, writ denied 03-0977 (La.5/16/03), 843 So.2d 1138. Proof must be by a preponderance of the evidence. Harsco Corp. v. Victoria, 01-1486, p. 4 (La.App. 3 Cir. 3/20/02), 812 So.2d 871, 874.

In response to Buggage’s claim for unemployment compensation benefits, the Department listed the following policy violations which led to Buggage’s termination:

1. On April 16, 2002, Buggage received a verbal warning for utilizing an office (public) vehicle for personal use.
2. On April 19, 2002, Buggage received a verbal warning for socializing with prisoners within a dormitory. Specifically, Buggage engaged in a card game with the prisoners in direct violation of the policies and procedures manual.
3. On May 28, 2003, Buggage received a five-day suspension for “dereliction of duty” for improperly releasing a prisoner. Buggage allowed a prisoner to be released without posting a bond, in direct violation of the policies and procedures manual.
4. On November 1, 2003, Buggage was terminated because of a serious infraction and dereliction of duty. After transporting a prisoner to the hospital for x-rays, Buggage left the prisoner alone and unattended for ^approximately fifteen minutes. This was a grave security risk which placed an enormous amount of liability on the Department and which was also a direct violation of the policies and procedures manual. The seriousness of this offense prompted Buggage’s termination.

In his statement given as part of his claim for unemployment benefits, Buggage admits that he was aware of the policy against leaving an inmate alone, admits that he violated the policy, and admits that he had received prior warnings about his conduct. However, Buggage stated that he did not think he should have been discharged because “they discharged me on what could have happened but nothing happen [sic].”

Louisiana Revised Statutes 23:1634 provides, in part:

A. [A]ny party to the proceedings before the board of review, may obtain judicial review thereof by filing in the district court of the domicile of the claimant a petition for review of the decision.... The petition for review need not be verified but shall state the grounds upon which such review is sought....
B.... In any proceeding under this Section the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law. No additional evidence shall be received by the court, but the court may order additional evidence to be taken before the board of review, and the board of review may, after hearing such additional evidence, modify its findings of fact or conclusions, and file with the court such additional or modified findings and conclusions, together with a transcript of the additional record. Such proceedings shall be heard in a summary manner and shall be given preference and priority over all other civil cases except cases arising under the workers’ compensation law of this state. An appeal may be taken from the decision of the district court to the circuit court of appeal in the same manner, but not inconsistent with the provisions of this Chapter, as is provided in civil cases.

The evidence presented as to the Department’s policies and Buggage’s actions provided sufficient evidence to support the Board of Review’s factual finding that Buggage was terminated for misconduct. Thus, under La. R.S. 23:1634, the Board’s findings are conclusive and our [¡jurisdiction is limited to questions of law. Given the Board of Review’s findings that Buggage was aware of the Department’s policies, that Buggage violated the policies, and that Buggage’s actions placed others at risk, the question becomes whether, under Louisiana law, the Board’s decision is justified by its findings of fact. It is clear that Buggage’s actions constitute “misconduct” as defined by La. R.S. 23:1601(2).

Regarding Buggage’s claim that the Department failed to provide proper training for him, Buggage had transported prisoners throughout his employment with the Department and admitted that he knew that he was not supposed to leave a prisoner unattended. Any argument that transporting prisoners was not his job and therefore he should not be held accountable for his actions while doing so, or an argument that he was not properly trained, will fail under the circumstances of this case because Buggage was aware of the Department’s policy and was aware that he was violating it.

As for his claim that the administrative law judge based his decision that Buggage was terminated for misconduct on an incorrect standard, ie., the definition of misconduct supplied in La. R.S. 23:1601(2), we likewise find no merit in this argument. The definition of “misconduct” supplied by La. R.S. 23:1601(2) outlines what types of behavior will result in a disqualification for unemployment benefits. Buggage’s actions fall squarely within the statutory definition of “misconduct.”

DECREE

For the above reasons, the judgment of the district court is affirmed. Costs of this appeal are assessed to appellant, Edward Buggage.

AFFIRMED.


text:
    Charlene DUPREE v. INTERNATIONAL HOUSE OF PANCAKES.
    No. 2005 CA 1021.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 2006.

      Christopher A. Edwards, Lafayette, Counsel for Plaintiff/Appellant Charlene Dupree.
    Chris Broadwater, J. Alan Jordan, Baton Rouge, Counsel for Defendant/Appel-lee International House of Pancakes.
    Before: CARTER, C.J., DOWNING, and GAIDRY, JJ.
   GAIDRY, J.

IgThe claimant-appellant, Charlene Du-pree, appeals the judgment of the Office of Workers Compensation Administration, District 5, awarding her weekly indemnity benefits for temporary total disability, but denying her claims for travel expense reimbursement and statutory penalties and attorney fees. For the following reasons, we amend the judgment and affirm it as amended.

PERTINENT FACTS AND PROCEDURAL HISTORY

In 2003, Charlene Dupree (claimant) was employed as a waitress by the defendant employer, International House of Pancakes (IHOP), at its restaurant on Siegen Lane in Baton Rouge. She earned an hourly wage of $2.13, supplemented by customer tips. She was employed over a period of thirteen weeks, but actually worked only eleven weeks during that period before a job-related injury on July 28, 2003. Her W-2 form for 2003 federal income tax purposes reflected total earnings of $5,015.98 in that employment. Of that total amount, $3,454.00 represented estimated tips based upon ten percent (10%) of her customer charges. Claimant filed a disputed claim for workers’ compensation benefits on August 21, 2003.

Following her accident, claimant was first seen by Howard Gidden, M.D., a general practitioner, but was later referred by IHOP to Richard Robichaux, M.D., a Baton Rouge orthopedic surgeon, for her complaints of low back, hip, and right knee pain. After being examined by Dr. Robi-chaux over the course of approximately five weeks, claimant refused to be seen by him again following an office confrontation between the physician and claimant’s husband over treatment options. Claimant then selected James | ¡¡Butler, M.D., of the Tulane University Clinic in New Orleans as her choice of treating orthopedic surgeon. Dr. Butler in turn referred claimant to his colleague, Michael E. Brunet, M.D., for evaluation and treatment of the knee complaints.

Following an examination of January 19, 2004, Dr. Brunet recommended a diagnostic arthroscopy of the right knee to remove a synovial cyst. After receiving Dr. Brunet’s report, IHOP contacted claimant’s former counsel on January 30, 2004 to schedule an examination with another orthopedic surgeon, other than Dr. Robi-chaux. An examination was scheduled for March 25, 2004 by Lawrence Messina, M.D., but claimant refused to attend that examination. IHOP filed a motion to compel claimant’s attendance at a re-scheduled examination, and following a hearing on April 30, 2004, claimant was ordered to attend a re-scheduled examination on May 6, 2004. Following that examination and its receipt of Dr. Messina’s report, IHOP approved the surgery recommended by Dr. Brunet.

The trial of the claim was conducted on May 20, 2004. The disputed issues were limited to the proper average weekly wage amount upon which temporary total disability benefits were to be based, claimant’s entitlement to mileage expenses for travel to and from New Orleans for treatment, and claimant’s entitlement to statutory penalties for IHOP’s failure to pay or authorize payment for the recommended surgery within sixty days of written notice. The workers’ compensation judge (WCJ) determined that claimant’s average weekly wage was $447.32, but rejected claimant’s claims for mileage reimbursement and statutory penalties. From that judgment, signed on May 25, 2004, claimant has instituted this appeal.

1 ¿ASSIGNMENTS OF ERROR

Claimant assigns the following errors on the part of the WCJ:

(1) The average weekly wage of the claimant, as found by the trial court, is manifestly erroneous and not supported by the evidence presented at trial, and should be $543.20;
(2) The Administrative Law Judge [sic ] was manifestly erroneous in failing to award mileage reimbursement to the claimant for her travel to see her choice of physicians from Baton Rouge to New Orleans as this was for reasonable and necessary medical expenses;
(3) The Administrative Law Judge [sic ] was manifestly erroneous in failing to find Travelers Insurance Company [sic ] [,] the insurer, arbitrary and capricious in their [sic] delay in approving the knee surgery or seeking a second opinion within 60 days;
(4) The Administrative Law Judge [sic ] was manifestly erroneous in failing to include in the Judgment the stipulated facts; and
(5) Claimant is entitled to an award of attorney fees if successful on appeal.

ANALYSIS

Claimant contends that the WCJ erred in the determination of her average weekly wage by failing to apply the “other wages” formula of La. R.S. 23:1021(10)(d). The record shows that the WCJ reviewed IHOP’s admittedly incomplete time records for the four weeks prior to the accident date and used the “hourly wages” formula of La. R.S. 23:1021(10)(a)(i) to calculate the hourly wage component of her earnings at $128.48, based upon a regular 40-hour workweek and average weekly overtime of 9.19 hours. The WCJ then used the “other wages” formula of La. R.S. 23:1021(10)(d) to determine the average weekly tip earnings of $318.84, based upon an average of six days worked per week (65 days total) over a period of eleven weeks actually worked.

|KThe use of a combination of formulas to derive the average weekly wage of a waitress earning both regular hourly wages and tips has been approved by other courts. See Lummus v. Shoney’s of La-Place, 97-1140, pp. 2-3 (La.App. 5th Cir.6/30/98), 713 So.2d 1290, 1292; Dupont v. Holiday Inn of Jennings, 96-684, pp. 4-5 (La.App. 3rd Cir.12/11/96), 685 So.2d 525, 527-28. See also Daigle v. Sherwin-Williams Company, 545 So.2d 1005, 1007-08 (La.1989). We likewise conclude that this method is appropriate under the circumstances, and that the WCJ committed no error in utilizing it.

In addition to the wages reported on the W-2 form, claimant eventually received additional back wages of $959.18 as part of a settlement for a claim for unpaid wages made with the Employment Standards Administration of the U.S. Department of Labor. Regardless of whether the extant records of IHOP supported those additional claimed earnings, the evidence shows that claimant did in fact receive them in the form of compensation for work performed over the overall time period at issue, in addition to the earnings reported on her W-2 form. We conclude the WCJ erred in failing to consider that relevant evidence, supported by the uncon-tradicted testimony of Ms. Dupree. Giving claimant the benefit of the doubt, as our statutory scheme requires, we will assume that the unpaid overtime wages were earned in equal weekly increments over the entire eleven-week period, and that for the four full work weeks prior to the accident claimant actually earned an additional $87.20 in hourly wages per week. Thus, her average weekly wage on an hourly wage basis was $215.68 ($128.48 + $87.20). Adding that sum to the average weekly tip earnings of $318.84, a total average weekly wage of $534.52 is obtained. |fiWe will therefore amend the judgment of the WCJ in that respect and hold that claimant’s entitlement to weekly benefits for temporary total disability should be based upon that revised figure.

Travel Expense

Louisiana Revised Statutes 23:1203(D) provides that an employer is liable for “the actual expenses reasonably and necessarily incurred by the employee for mileage reasonably and necessarily traveled by the employee in order to obtain the medical services ... which the employer is required to furnish” for a job-related injury. (Emphasis supplied.)

Although IHOP authorized treatment by Dr. Butler and Dr. Brunet, it expressly declined to approve reimbursement for transportation to and from New Orleans. In a letter to claimant, IHOP noted that claimant’s husband advised that he attended school in New Orleans and would be able to provide transportation for her. Additionally, the evidence at trial demonstrated, and claimant herself acknowledged, that there were other orthopedic surgeons in Baton Rouge who could have provided treatment within that specialty, and that she opted to consult New Orleans physicians on the unsubstantiated assumption that other Baton Rouge physicians would be “prejudiced” against her by reason of her complaint against Dr. Robi-chaux.

In light of the foregoing, the WCJ concluded that although claimant’s consultation of Drs. Butler and Brunet as her treating physicians was reasonable, her mileage expenses were not incurred “reasonably and necessarily,” as appropriate treatment within that medical specialty was available in her geographical area. We agree that the determination of whether mileage expenses are “reasonably and necessarily incurred” in order to obtain medical services is a separate inquiry from that of whether the |7medical services are “necessary” under La. R.S. 23:1203(A). This factual finding by the WCJ is supported by the record and accordingly entitled to deference. See Anderson v. Eckerd Corporation, 04-1053, pp. 4-5 (La.App. 1st Cir.5/6/05), 915 So.2d 901, 904, writ denied, 05-1520 (La.1/9/06), 918 So.2d 1044. We find no manifest error.

Penalties and Attorney Fees Under La. R.S. 23:1201

Claimant contends that IHOP’s failure to pay or authorize the payment of the diagnostic arthroscopic surgery recommended by Dr. Brunet within sixty days of January 24, 2004 constituted arbitrary and capricious conduct entitling her to the statutory penalties and attorney fees authorized by La. R.S. 23:1201(F). Our review of the evidence convinces us otherwise.

Claimant contends that it may reasonably be assumed, without further support, that the report was received by IHOP within “five working days” of the examination date of January 19, or by January 24, 2004. The evidence in the record does not support that proposition. The report itself bears the notation that it was “electronically signed” by Dr. Brunet on January 26, 2004 and “run” (printed) on January 30, 2004. The latter date corresponds with the date of a letter to claimant from her attorney at that time, advising her of IHOP’s request for an evaluation and second opinion relating to the surgery recommendation. The evidence supports the conclusion that IHOP received Dr. Brunet’s report on January 30, 2004.

The record thus demonstrates that IHOP scheduled the second opinion evaluation of March 25, 2004 within the 60-day statutory deadline, but was prevented from obtaining the benefit of that opinion due to claimant’s initial refusal to attend the appointment. Its failure to authorize or make payment |sfor the recommended surgery within 60 days of January 30, 2004 can only be considered as attributable to “conditions over which the employer ... had no control.” La. R.S. 23:1201(F)(2). The WCJ’s decision that claimant was not entitled to statutory penalties and attorney fees is fully supported by the record and cannot be considered manifestly erroneous. Our ruling in this regard obviates consideration of claimant’s fifth “assignment of error” as to attorney fees on appeal.

Incorporation of Stipulated Facts in Judgment

Claimant complains that the judgment did not incorporate the facts stipulated by the parties for purposes of trial, and urges this court to amend or modify the judgment accordingly. Louisiana Revised Statutes 23:1317(A) requires a WCJ to “decide the merits of the controversy as equitably, summarily, and simply as may be,” and La. R.S. 23:1317(B) simply provides that “[t]he judgment rendered shall have the same force and effect ... as a judgment of a district court.” There is no other direct statutory guidance as to the form of a judgment in a workers’ compensation case, and claimant cites no authority for the proposition that stipulated facts should form part of a final judgment in a workers’ compensation case. The judgment at issue adequately sets forth the ruling of the WCJ on those contested issues presented for her determination, and the WCJ’s reasons for judgment are contained in the transcript of her oral ruling at the conclusion of the trial. Further, La. C.C.P. art.1918, governing the form of final judgments in civil cases generally, provides that “[w]hen written reasons for the judgment are assigned, they shall be set out in an opinion separate from the judgment.” (Our emphasis.) Thus, it is procedurally improper to incorporate written reasons within the final judgment itself, and the same |areasoning would logically apply to findings of fact forming part of reasons for judgment. See La. C.C.P. 1917(A).

DECREE

The judgment of the Office of Workers Compensation Administration, District 5 is amended to increase the average weekly wage of the claimant, Charlene Dupree, from $447.32 to $534.52. In all other respects, the judgment is affirmed. The costs of this appeal are assessed equally between the parties.

AMENDED AND, AS AMENDED, AFFIRMED.

      . The claim was actually administered by IHOP’s workers’ compensation insurer, Constitution State Service Company, which was not named as a defendant in the claim. For convenience, we will refer to IHOP and the insurer collectively as "IHOP.”

      . As amended effective June 10, 2004, former La. R.S. 23:1021(10) is now redesignated as La. R.S. 23:1021(12).

      . $959.18 divided by eleven weeks yields a weekly sum of $87.20.

      . Even if this assumed time frame of receipt were to be accepted, we note that the fifth day, January 24, 2004, was a Saturday, and thus not a “working day." The fifth "working day” would have been Monday, January 26, 2004.


author: ROLAND L. BELSOME, Judge.

text:
    In re MEDICAL REVIEW PANEL OF Annie R. THOMAS. Annie R. Thomas v. State of Louisiana, through the Department of Health and Hospitals, Medical Center of Louisiana at New Orleans.
    Nos. 2005-CA-0879, 2005-CA-0880.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 31, 2006.

      Joseph F. Bishop Jr., Garcia & Bishop, Metairie, LA, for Appellant.
    Kathleen A. Chapman, E. Ralph Lupin, Special Assistant Attorney General, Mid-dleberg, Riddle & Gianna, New Orleans, LA, for Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. MCKAY III, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

| plaintiff, Annie Thomas (“Ms.Thomas”), appeals the trial court’s granting of defendant’s, Medical Center of Louisiana at New Orleans (“MCLNO”), exception of prescription.

PROCEDURAL HISTORY

In April of 1999, Ms. Thomas, through counsel, requested a medical review panel be convened to review a blood transfusion given to her at MCLNO in 1987. Her complaint was amended on February 14, 2000, to allege that she was infected with the hepatitis C virus via a transfusion at MCLNO in 1973.

Ms. Thomas filed a Petition for Damages in Orleans Parish Civil District Court in 2000. On September 1, 2000, Ms. Thomas filed a Motion to Supplement and Amend Petition and First Supplemental and Amended Petition for Damages. On March 20, 2001, Ms. Thomas filed her Second Amended and Restated Petition for Damages, which alleged theories of negligence and strict liability on the part of MCLNO pertinent to Ms. Thomas’ 1973 transfusion.

LMCLNO filed an exception of prematurity based upon the fact that Ms. Thomas’ negligence claim had never been presented to medical review panel as required by the Malpractice Liability for State Services Act. Following a contradictory hearing the trial court granted the exception of prematurity. As a result, Ms. Thomas filed a Third Amended and Restated Petition, which removed all allegations of negligence. In that pleading, Ms. Thomas alleges that MCLNO is strictly liable to her for contaminated blood she received through a transfusion in 1973. The petition claims that in July 1998, Ms. Thomas “first learned” that she was infected with the hepatitis C virus. She further states that in December of 1999, her father informed her that she had received a blood transfusion at Charity Hospital in 1973. MCLNO then filed an exception of prescription, which was granted by the trial court. Ms. Thomas appeals that ruling.

LAW AND ANALYSIS

Ms. Thomas’ strict liability claim for the 1973 transfusion is governed by La. Civil Code art. 3492. La. Civil Code provides for a liberative prescription period of one year. The statute also states that “prescription commences from the day injury or damage is sustained.” La.C.C. art. 3492.

Ms. Thomas argues that she had no way of knowing of the 1973 transfusion prior to December 1999 and therefore prescription did not commence prior to that time. She contends that the doctrine of “contra non valentem”, which interrupts the running of prescription, applies.

More specifically, the doctrine prevents prescription from running against a plaintiff who could not bring suit. According to the Louisiana Supreme Court 1 ¡¡there are factual situations in which the doctrine applies: 1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action; 2) where there was some condition coupled with a contract or connected with the proceedings which prevented the creditor from suing or acting; 3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of the cause of action; or 4) where the cause of action is neither known nor reasonably knowable by the plaintiff even though the plaintiffs ignorance is not induced by the defendants. Renfroe v. State, Through Department of Transportation and Development, 2001-1646 (La.2/26/02); 809 So.2d 947.

Ms. Thomas claims that when she was diagnosed with the hepatitis C virus, her hepatologist, Dr. Robert Perrillo, based on the medical history provided by Ms. Thomas, related her diagnosis to a blood transfusion she received at Charity Hospital in 1987. Relying on that information she contacted an attorney who requested a medical panel be convened, but eventually concluded that the blood shield statutes barred her cause of action for the tainted blood received in 1987.

Ms. Thomas further claims that it was not until December 1999 when her father informed her that when she was twelve years of age, she had a blood transfusion at Charity Hospital. That transfusion would have occurred in 1973. Ms. Thomas then filed the strict liability claim, which is at issue in this appeal. Ms. Thomas asserts that at no time prior to her discussion with her father, could she have known about the 1973 transfusion.

RHowever, Ms. Thomas’ medical records and deposition testimony indicates that in 1996 she had, at the very least, constructive knowledge that she had Hepatitis C. On September 22, 1994, Dr. Yolanda O’Rourke at the MCLNO Medicine Clinic, performed tests upon plaintiff including a hepatitis C profile. Dr. O’Rourke told Ms. Thomas to return on March 2, 1995, to discuss her results. Ms. Thomas attended that follow-up visit. At that time, Dr. O’Rourke noted that the patient was “reactive for HCV antibodies.” Her impression was of Hepatitis C with mildly elevated liver function tests. Ms. Thomas was instructed to call back for more specific results. Ms. Thomas returned to see Dr. O’Rourke on May 18, 1995. At that time she was described a 33-year-old black female with hepatitis C, presenting for a follow-up. The plan was for Ms. Thomas to receive treatment at the liver clinic.

Ms. Thomas returned to MCLNO on September 12,1996. At that time, she was seen by Dr. Pravin Talati, and based upon the chart, had a discussion with him about her elevated liver function tests and her alcohol intake, which she stated as “drink 5 pint/wk.” Dr. Talati told Ms. Thomas to obtain an ultrasound and her Hepatitis profile from the Medicine Clinic and to return to see him. It appears the ultrasound was scheduled for September 19, 1996 at the Medicine Clinic. Ms. Thomas testified that she signed the page with the given instructions but did not follow the instructions.

On October 6, 1996, Ms. Thomas was seen in the Emergency Department of MCLNO. She presented her history to the examiner as 33 year old female who was seen by this clinic a month ago and her liver function test was found to be | sabnormaI. She agreed to an ultrasound of her liver at that time, however, she did not go and was at MCLNO again saying she felt weak and also gets anxiety. The physician referred the patient to LSU He-patology and recommended quitting drinking. Ms. Thomas signed that sheet along with the discharge sheet, which stated a history of alcohol abuse, abnormal liver function tests and positive HCV antibodies.

According to her medical records she appeared at the Hepatology Clinic on November 8, 1996. On that visit she was seen by Dr. George Catini who stated that she was a 34 year old black female with a history of alcohol use and that she had a history of blood transfusion with three units of packed red blood cells when her ovary was removed.

Dr. Catini’s testimony supports the fact that Ms. Thomas was informed in 1996 about her being positive for the hepatitis C virus. Dr. Catini testified that Ms. Thomas tested positive for hepatitis C and that the most likely source would have been a blood transfusion. In addition, he would have further informed her that she could not drink alcohol. Though Ms. Thomas recalls the “do not drink alcohol” instruction she claims Dr. Catini did not inform her that she tested positive for hepatitis C.

Ms. Thomas not only contends that she had no way of finding out about her 1973 blood transfusion until 1999, but also had no idea about having hepatitis C until 1998. The doctrine of contra non valentem undoubtedly applies to the circumstances of the instant case. It is for this court to determine at what time Ms. Thomas had adequate notice to prompt further inquiry into her condition. Ms. (Thomas claims that her cause of action was not known, or reasonably knowable. see Wimberly v. Gatch, 635 So.2d 206 (La.1994). However, the facts presented do not support such a finding. Her medical records clearly indicate otherwise. Even though she may have been ignorant of, or misunderstood, the extent of her illness, she could still have the requisite knowledge to commence prescription, see Renfroe, supra. At the very least, Ms. Thomas had constructive notice reasonably sufficient to lead to further inquiries about her condition back in 1996.

In Ducote v. Touro Infirmary, 2003-0755 (La.App. 4 Cir. 10/22/03); 860 So.2d 125, this court found that a notice to the plaintiff from a blood bank indicating that she was infected with the hepatitis C virus twenty years prior to becoming symptomatic, was sufficient notice to commence the running of prescription.

CONCLUSION

We agree with the trial court’s finding that Ms. Thomas had sufficient notice to begin the running of prescription in 1996. Therefore, this case was prescribed at the time of filing. Accordingly, we affirm the trial court’s ruling granting the Medial Center of Louisiana at New Orleans’ exception of prescription.

AFFIRMED.


author: EDWIN A. LOMBARD, Judge.

text:
    Jacqueline JACKSON v. SYSCO FOOD SERVICES.
    No. 2005-CA-1304.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 2006.

      Catherine J. Drake, Law Office of Alexandra Mora, APLC, New Orleans, LA, for Plaintiff/Appellee.
    Tobin J. Eason, Weiss & Eason, LLP, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS SR., Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

1 iThis appeal by defendant/appellant Sysco Food Services is from a judgment awarding the plaintiff/appellee Jacqueline Jackson temporary total disability benefits pending resolution of a psychiatric condition. After reviewing the record in light of the applicable law and arguments of the parties, we reverse the judgment of the workers’ compensation judge.

Applicable Law

La.Rev.Stat. 23:1031(A) provides compensation if an employee sustains personal injury as the result of an accident arising out of and in the course of employment. Daspit v. Southern Eagle Sales & Services, Inc., 98-1685, p. 3 (La.App. 4 Cir. 1/20/99), 726 So.2d 1079, 1081. Temporary total disability benefits are recoverable only after the employee proves, by clear and convincing evidence, that he is physically unable to perform any type of employment. La.Rev.Stat. 23:1221(1)(c) In determining whether the claimant has met this |2burden, the workers’ compensation judge must weigh both medical and lay evidence. Bailey v. Smelser Oil Gas, Inc., 620 So.2d 277 (La.1993). Furthermore, the claimant must introduce objective medical evidence to sustain this requirement by clear and convincing evidence. Comeaux v. Sam Broussard Trucking, 94-1631 (La.App. 3 Cir. 5/31/95); 657 So.2d 449.

Where a mental injury or illness develops secondary to a physical injury sustained in a work-related accident, the employee is entitled to compensation benefits for any disability resulting from the mental injury and to reimbursement for the mental treatment medical expenses. Charles v. South Central Industries, 96-0883 (La.11/25/96), 683 So.2d 706; Traweek v. City of West Monroe, 30,571 (La.App.2d Cir.5/13/98), 713 So.2d 655, unit denied, 98-1936 (La.11/6/98), 727 So.2d 449. Because of the nebulous characteristics of mental conditions and the possibility of symptoms being easily feigned, reviewing courts must analyze |sclaimed mental disability with the utmost caution. Traweek, supra. Thus, in order to obtain compensation benefits for a mental injury caused by a physical injury, (1) the claimant must prove by clear and convincing evidence that the physical injury caused the mental injury, (2) the mental injury must be diagnosed by a licensed psychiatrist or psychologist, and (3) the diagnosis must meet the American Psychiatric Associations’ diagnostic and Statistical Manual of Mental Disorders. La.Rev.Stat. 23:1021(7)(d), Traweek, supra; see also Harvey v. Bogalusa Concrete, Inc., 97-2745, p. 3 (La. App.1 Cir. 9/25/98), 719 So.2d 1130, 1131 (the workers’ compensation claimant must prove by a preponderance of the evidence that an employment accident had a causal relationship to the disability; if the testimony leaves the probabilities evenly balanced, the claimant has failed to carry the burden of persuasion).

Discussion

The following relevant evidence was adduced at the hearing before the workers’ compensation judge. On May 1, 2002, the plaintiff (employed by the defendant since March 4, 2001, as a dry dock night loader) suffered a soft-tissue injury while loading a truck when she fell from the back of the truck into the parking lot. The plaintiff left work and did not seek medical treatment until May 7, 2002, when she was examined by Dr. Thomas Hawley and released to return to light-duty work. The plaintiff returned to work on June 6, 2002, and was assigned modified duties within the light-duty work restrictions but left work complaining that she was unable to work because of significant pain.

^Subsequently, on June 14, 2002, Dr. Robert Steiner, an orthopedist, examined the plaintiff and, diagnosing a cervical and lumbar strain, prescribed a short course of physical therapy. Because the plaintiff continued to complain of pain after completing the prescribed physical therapy, an MRI was ordered. However, the MRI revealed only a normal lumbar spine with age-appropriate cervical spinal degeneration. Accordingly, Dr. Steiner released the plaintiff to return to light-duty work status on July 15, 2002, and, on October 16, 2002, released her to return to work with no restrictions.

On September 9, 2002, the plaintiff sought treatment from an orthopedist of her own choosing, Dr. Robert Ruel. Dr. Ruel recorded the plaintiffs complaints pain in her back and lower extremities, as well as numb, tingly, and cramped fingers but could find no objective sign of injury. Based on the plaintiffs pre-existing cervical degeneration, however, Dr. Ruel opined that she should avoid medium-duty jobs and limit her job activities to sedentary and light-duty positions with restrictions on bending, climbing, and prolonged walking/sitting. The plaintiff returned to Dr. Ruel with subjective complaints of pain, but Dr. Ruel remained unable to discover any objective basis for her complaints and, on January 23, 2003, observed that she had reached maximum medical improvement from her orthopedic injuries.

On January 16, 2003, the plaintiff underwent an Independent Medical Examination (IME) performed by another orthopedist, Dr. Monroe Laborde. Dr. Laborde found no physical impairment relating to the plaintiffs accident and that she was capable of returning to work without restriction. He noted, however, that |salthough her examination was inconsistent with her complaints, she was depressed and a psychological examination should be considered.

Accordingly, on September 9, 2004, a psychiatrist, Dr. Mordecai Potash, examined the plaintiff. Dr. Potash found no physical basis for the plaintiffs complaints of pain but, based solely on the history recounted by the plaintiff (who indicated that her employer required her to return immediately to full-duty work and omitted any reference to prior medical treatment, physical therapy, or her employers’ attempt to assign her to light-duty status within her medically required work restrictions), opined that she should have been given an regimen of physical therapy after the accident and should not have been thrust back into her prior heavy lifting occupation which likely aggravated her condition. Dr. Potash, noting the plaintiffs past history of attempted suicide and current symptoms of depression related to her pain, unemployment, and poverty, recommended pain management counseling with prescribed medication to treat the plaintiffs depression. According to Dr. Potash’s assessment, the plaintiff suffered from a “[p]ain disorder due to medical condition, exacerbated by depression.”

A vocational rehabilitation counselor, Carla Seyler, evaluated the jobs offered to the plaintiff by the defendant after the accident and found all of them to be within her physical limitations and at the same salary she earned prior to the accident. Moreover, based on the plaintiffs education and skills, Ms. Seyler enumerated jobs available to the plaintiff beyond employment with the defendant.

The workers’ compensation judge found, however, that the claimant was entitled to Temporary Total Disability Benefits:

The claimant suffered both physical and mental injuries as a result of said accident. More specifically, the claimant is still presently disabled due to psychiatric injuries, which she suffered as a result of Ifiher May 1, 2002 work-related accident. The court finds that the claimant is temporarily and totally disabled pending a resolution of her psychiatric condition.

Discussion

A careful review of the record in light of the applicable law does not support the judgment of the workers’ compensation judge. Although the plaintiff was diagnosed with a mental injury (depression) by a licensed psychiatrist (Dr. Potash) as required by La.Rev.Stat. 23:1021(8)(d), it cannot be said that she established by clear and convincing evidence that her mental injury (depression) arises out of the soft-tissue injury she suffered in the course and scope of her employment or that she is unable to work. Drs. Hawley, Ruel, and Laborde released the plaintiff to return to work; the vocational counselor specifically enumerated jobs which, based on her education, work history, and skills, the plaintiff is capable of performing; and Dr. Potash opined that the plaintiff should undergo pain management counseling and be prescribed medication for her depression but did not find that the plaintiff was physically unable to perform any type of employment. Accordingly, the plaintiff failed to prove, by clear and convincing evidence that, pursuant to La.Rev.Stat. 23:1221(l)(c), she is physically unable to perform any type of employment and thus entitled to temporary total disability benefits.

Conclusion

The workers’ compensation judge was clearly wrong in awarding temporary total disability benefits to the plaintiff pending the resolution of her psychiatric condition. Accordingly, the judgment is reversed.

REVERSED.

      . La.Rev.Stat. 23:1221(1) provides, in full, as follows:
      (a) For any injury producing temporary total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, or experience, sixty-six and two-thirds percent of wages during the period of such disability.
      (b) For purposes of Subparagraph (l)(a) of this Paragraph, compensation for temporary disability shall not be awarded if the employee is engaged in any employment or self-employment regardless of the nature or character of the employment or self-employment including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain.
      (c) For purposes of Subparagraph (l)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subparagraph (l)(b) of this Paragraph, compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.
      (d)An award of benefits based on temporary total disability shall cease when the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made, and the employee's physical condition has improved to the point that continued, regular treatment by a physician is not required, or six months after the injury, whichever first occurs. If the claimant contends that his disability is of a temporary nature, but extends beyond this six-month period, he must submit a claim for extension of the period of temporary total disability under R.S.23:1310.3.

      . Light-duty work in this case was defined as avoiding lifting/pulling/pushing weights greater than 20 pounds.

      . The plaintiff was paid workers’ compensation benefits from May 15, 2002, through July 15, 2002.


author: MAX N. TOBIAS, JR., Judge.

text:
    Cynthia MARTIN v. BOH BROS. CONSTRUCTION CO., LLC.
    No. 2005-CA-1300.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 2006.

      Harry E. Forst, New Orleans, LA, for Cynthia Martin.
    Richard S. Vale, Donald C. Douglas, Jr., Blue Williams, L.L.P., Metairie, LA, for Boh Bros. Construction Company, LLC.
    (Court Composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR.).
   MAX N. TOBIAS, JR., Judge.

11 Contractor, Boh Brothers Construction Company, L.L.C. (“Boh Brothers”), appeals a judgment finding it liable for the injuries sustained by the plaintiff, Cynthia Martin (“Martin”), when she fell on uneven pavement while crossing Tulane Avenue in New Orleans while it was in the process of being repaved. Boh Brothers asserts that it is entitled to statutory immunity provided to contractors by La. R.S. 9:2771 and should have been found free from fault by the trial court.

On 16 May 2002, Martin exited the Medical Center of Louisiana (commonly and hereinafter referred to as “Charity Hospital”) and began to cross Tulane Avenue in order to catch a bus home. While she was crossing the street, she fell where there was a drop-off in the pavement between two lanes of travel, a differential she estimated at two to three inches. Martin asserts that the drop-off was not readily detected by casual observation. She alleges that at the time she [¿fell, Boh Brothers was grading and re-paving that stretch of Tulane Avenue, and that it created a dangerous drop-off without providing any warning to- pedestrians that it existed. Martin filed suit in Civil District Court on 15 May 2008.

Boh Brothers asserted an affirmative defense in its answer that it was statutorily immune from suit pursuant to R.S. 9:2771. It further asserted that Martin was negligent by failing to maintain a proper lookout and failing to act in a prudent manner and was solely at fault for her own injuries.

The case was tried without a jury on 4 April 2005. The trial court received testimony from Martin; her daughter, Kynisha Martin (“Kynisha”); Barbara Tapp (“Tapp”), the owner of Tapp’s Uniform and Apparel, where Martin was planning to work before her fall; Raymond Arcement (“Arcement”), a safety engineer employed by Boh Brothers; and Clifton P. Nary (“Nary”), a civil engineer and project manager for Boh Brothers.

Martin testified that on 16 May 2002 she arrived at Charity Hospital for an appointment at the clinic. Following her appointment, she visited Kynisha, who worked at the hospital. She and Kynisha left the hospital together, and Martin began to cross Tulane Avenue, a street with three lanes of travel in each direction, toward the bus stop to return home. Kynisha waited on the sidewalk in front of the hospital, watching her mother cross the street. Martin made it to the median and continued to cross the next three lanes of travel, when she suddenly fell. Martin testified that she did not see the drop-off before she fell; that there were no signs warning pedestrians of the uneven payment; and neither cones nor construction ^equipment were present to give an indication that the street was being repaved. After she fell, she got up and waved at her daughter to let her know she was okay. Following the fall, Martin was not in immediate pain, other than a skinned knee, but testified that when she arrived home, she felt pain in her left foot.

That evening, Martin reported to the emergency room at Charity Hospital with a broken foot. Her foot was placed in a hard cast and she was told to stay off of her foot for three weeks. She was given crutches and returned home. Martin’s cast was removed on 7 August 2002.

Martin also testified that she lost work as a result of the accident. Although she was only told to stay off of her feet for three weeks, Martin testified that she was unable to accept a summer job at Tapp’s Uniform and Apparel that she had been offered, because of persistent pain and swelling in her foot. She further testified that she was unable to return to work as a substitute teacher and crossing guard for the Orleans Parish School Board in the fall, with whom she had been employed prior to her accident.

Kynisha testified that she watched her mother cross Tulane Avenue and fall before reaching the other side. She herself had tripped crossing Tulane Avenue at the same crosswalk, but did not fall or injure herself. She confirmed that the drop-off was not visible when approached from the side of Tulane Avenue where Charity Hospital is located.

Tapp testified that she owned Tapp’s Uniform and Apparel, a small retail store in New Orleans. She stated that she had hired Martin to work in her store during the summer months, when Martin would be off work from the Orleans Parish School Board. She was going to pay her $200.00 per week, but testified that she had to hire someone else to fill the position after Martin was injured, because even though Martin wasn’t confined to crutches for the entire summer, the store was too small and too busy for Martin to negotiate with her cast.

Arcement, the Assistant Safety Director for Boh Brothers, had no personal knowledge of the construction project or site involved in Martin’s accident. He did concede, however, that a pavement differential of two or three inches could create a hazardous condition for pedestrians.

Nary was the project manager for the Tulane Avenue re-surfacing project. He testified that Boh Brothers received specifications for the construction site from the City of New Orleans. The city had required Boh Brothers to do the construction at night, so as not to impede traffic on Tulane Avenue during the day. Further, the city had required Boh Brothers to remove all equipment from the site at the end of each night. Nary testified that the city did not make any provisions for warning signs, and that absent such specifications, Boh Brothers would not normally place any warning sign on a re-surfacing project such as this one. He testified that the crew laid one and one-half inches of asphalt and that the drop-off would have only been that high. He disputed Martin’s claim that the drop-off was two or three inches.

| ^Following the trial, the trial court awarded Martin $1,481.50 in medical damages, $2,400.00 in lost wages, and $20,000.00 in general damages, plus costs and interest from the date of judicial demand. Her award, however, was to be reduced by 25%, which represented Martin’s percentage of fault for the accident. In its reasons for judgment, the trial court found that it had been established that Boh Brothers was re-surfacing the street where Martin fell, and that no barricades, cones, workmen, or equipment were present. The trial court noted that although Boh Brothers argued that the specifications provided by the city didn’t require it to mark the area with warning signs or cones, the area was in fact dangerous as “it looked even just until one came upon it.” The trial court also noted that Martin had a duty to observe her surroundings, and accordingly found her to partially at fault.

Boh Brothers appealed the judgment of the trial court, assigning three errors. First, Boh Brothers asserts that it is entitled to statutory immunity as a contractor in Louisiana pursuant to R.S. 9:2771. Second, it asserts that the trial court erred in finding it liable to Martin in the absence of a showing of negligence. Finally, Boh Brothers takes issue with the quantum awarded to Martin for her broken foot.

The first error assigned by Boh Brothers is ostensibly a legal one, i.e., whether the trial court properly applied R.S. 9:2771; we review the issue de novo. R.S. 9:2771 provides:

No contractor, including but not limited to a residential building contractor
as defined in R.S. 37:2150.1(9), shall be liable for destruction or deterioration of or defects in any work constructed, or under construction, by him if he constructed, or is constructing, the work according to plans or specifications furnished to him which he did not make or cause to be made and if the destruction, deterioration, or defect was due to any fault or insufficiency of the plans or specifications. This provision shall apply regardless of whether the destruction, deterioration, or |fidefect occurs or becomes evident prior to or after delivery of the work to the owner or prior to or after acceptance of the work by the owner. The provisions of this Section shall not be subject to waiver by the contractor.

Thus, a contractor may be statutorily immune from damages arising from a defect in the work being done if the defect was due to any fault or insufficiency in the plans or specifications. The purpose of this statute is to relieve a contractor of the responsibility of having to warrant the sufficiency of plans and specifications furnished to him by another. LeBreton v. Brown, 260 So.2d 767, 771 (La.App. 4 Cir.1972). Boh Brothers argues that it is entitled to immunity under the statute because the work was being done pursuant to plans and specifications provided by the city, which did not call for warning signs. Specifically, it directs us to the language in the plans furnished by the city, that “detour or warning signs shall be provided and placed as may be directed by the Director [city].” Boh Brothers maintains that this language prohibited the placement of any warning signs at the site unless the city so directed. However, as discussed infra, the failure of the city to specify that warning signs be placed to warn pedestrians of an unreasonable risk of harm does not automatically shield Boh Brothers from liability.

Boh Brothers also argues that the drop-off between lanes of travel on Tulane Avenue was unavoidable in the paving process and standard in the industry. While these assertions may be true, the defects complained of in this litigation include not only the depth of the drop-off, which Martin asserts was two or three inches, but also Boh Brothers’ failure to mark the area as a construction zone, which would |7have provided some warning to pedestrians that there might be irregularity in the pavement. Boh Brothers’ arguments that the specifications provided to it did not include provisions for warning signs or cones, and that the fact that the street was being resurfaced was plainly visible to pedestrians by the striations in and coloration of the lanes awaiting asphalt, are not persuasive under Louisiana law.

Although R.S. 9:2771 may provide a shield to contractors for liability to third parties for defects in plans or specifications provided to it, a contractor may not be entitled to statutory immunity under R.S. 9:2771 if it has reason to believe that adherence to the plans and specifications provided to it may create a hazardous condition or unreasonable risk of harm. Recotta Trucking Co., Inc. v. State through DOTD, 573 So.2d 526, 527 (La. App. 4 Cir.1990). In the present case, the trial court found that it was not merely the presence of the drop-off itself that caused Martin to fall, but the lack of any warning to pedestrians approaching from the Tulane Avenue side of the street that there was a drop-off in the pavement or that the street was being re-surfaced, that constituted an unreasonable risk of harm. Because we review a determination of unreasonable risk of harm (a fact-intensive determination) under the manifest error/clearly wrong standard, we look to whether the determination of the trial court was reasonable in light of the evidence contained in the record on appeal.

| sThe evidence at trial preponderates to show that there was no warning and very few visible clues to a pedestrian crossing the street from the side adjacent to Charity Hospital that there might be a drop-off in the middle of the crosswalk. The photographs contained in the record on appeal taken from the vantage of a pedestrian crossing in the same manner as Martin confirms this: the far lane that had been graded and was lower than the rest of the street is not clearly visible. We also note that Tulane Avenue is a busy street, heavy at the point of Martin’s injury with both automotive and pedestrian traffic. The risk that a pedestrian might fall and injure himself or herself was high, especially given that many of those departing Charity Hospital might reasonably be expected to be elderly, infirm, or physically impaired. Thus, we do not find that the trial court was manifestly erroneous or clearly wrong in its determination that Boh Brothers’ failure to mark the construction zone or in some way warn pedestrians of the uneven pavement created an unreasonable risk of harm.

Boh Brothers argues that Martin did not put forth any evidence of negligence on its part that could render it hable to her for her injuries. However, this court has held that a company performing construction work has a duty to properly label, mark, or barricade places in a construction site that present an unreasonable risk of harm to passersby. Carr v. Boh Bros. Const. Co., Inc., 557 So.2d 356 (La.App. 4 Cir.1990); Toledano v. Sewerage and Water Bd. of City of New Orleans, 95-1130, pp. 4-5 (La.App. 4 Cir. 3/11/96); 671 So.2d 973, 976. Insofar as Boh Brothers had a duty to warn pedestrians of an unreasonable risk of harm (determined by the trial court to be the unmarked drop-off), its failure to do so constituted a breach of that duty, which sounded in negligence. Further, it is | flundisputed that the unmarked, uneven pavement caused Martin’s fall and injury. Thus, we find this assignment of error to be without merit.

Finally, Boh Brothers takes issue with the quantum awarded in this matter, insofar as Martin sustained a broken foot for which she only received treatment for approximately eleven weeks (or until the date on which she had the cast removed). Martin asserts, however, that the award is perfectly reasonable given the severity of the injury and given that she was still suffering from pain and swelling three years after the accident. Although Boh Brothers directs us to the award in Mix v. Krewe of Petronius, 95-1793 (La.App. 4 Cir. 5/22/96), 675 So.2d 792, in which the plaintiff was awarded only $8,500.00 for a similar injury, we are mindful that a trial court enjoys great discretion in determining an award of general damages to an injured plaintiff. Wainwright v. Fontenot, 00-0492, p. 6 (La.10/17/00), 774 So.2d 70, 74. We do not find that the trial court abused its discretion in making the award, and thus may not disturb it. Id.

As such, we affirm the judgment of the trial court.

AFFIRMED.

      . The record on appeal reflects that the street was being graded and that one lane of traffic was lower than the lanes of travel immediately preceding it when approached from the side of the street adjacent to Charity Hospital.

      . Photographs of the pavement both from up close and from the perspective Martin would have had when she crossed the street were entered into evidence. While the unevenness in the pavement is visible up close, it does not appear to be readily visible when approached from Charity Hospital. We also note that there is a pedestrian crosswalk where Martin crossed Tulane Avenue, and the uneven pavement extends through the crosswalk.

      . The testimony indicates that neither Martin nor Boh Brothers actually measured the drop-off in the crosswalk.

      . We d.o not read the language cited by Boh Brothers to prohibit the placement of warning signs by it; it implies that Boh Brothers might be called upon to furnish warning signs at the work site if directed by the city.

      . The determination of whether a condition presented an unreasonable risk of harm is a fact-intensive analysis that comprises several factors including: (1) the claims and interests of the parties; (2) the probability of the risk occurring; (3) the gravity of the consequences; (4) the burden of adequate precautions; (5) individual and societal rights and obligations; and (6) the social utility involved. Dupree v. City of New Orleans, 99-3651, p. 14 (La.8/31/00), 765 So.2d 1002, 1012.


text:
    Donald L. MASINTER v. AKAL SECURITY, INC.
    No. 2005-CA-1236.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 2006.

      Gregory S. Unger, Workers’ Compensation, L.L.C., Metairie, LA, for PlaintiffiAp-pellant.
    John J. Rabalais, Janice B. Unland, Robert T. Lorio, Thomas B. Delsa, Raba-lais, Unland & Lorio, Covington, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS SR., Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

b Donald Masinter appeals the dismissal of his workers’ compensation claim against his employer for a disability allegedly caused by an accident which occurred during the course and scope of his employment.

STATEMENT OF THE CASE

This is a workers’ compensation case in which Appellant, Donald Masinter (“Mr. Masinter”), seeks compensation for injuries sustained in work related accident occurring on November 14, 2002. Mr. Ma-sinter tripped and fell on a piece of floor that was under construction while he was employed as security guard with AKAL Security, Inc., at the Federal Court Building in New Orleans, Louisiana. On December 31, 2003, Mr. Masinter filed suit, seeking indemnity benefits, medical benefits and penalties and attorney fees. He has alleged injuries to his back, neck, right shoulder and knees.

On the day of the accident, Mr. Masinter went to investigate an alarm that had gone off during construction on the Federal Courthouse. He put his key in the door, turned of the alarm, locked the door, and when he turned around, his foot struck a piece of mortar on the ground and he fell. He hit the floor with his knees | ¡.arms, and then landed on his gun, which was attached to his hip. He cut the skin under his right kneecap.

The accident was reported immediately, and Wendy Carpenter, a nurse at the Hale Boggs Federal Courthouse, examined Mr. Masinter that day. Mr. Masinter’s family physician, Dr. James Maher, examined him on November 27, 2002. Mr. Masinter began treating with his choice of orthopedic surgeon, Dr. John Watermeier, on January 23, 2003.

Mr. Masinter continued to work for AKAL Security, Inc., in the same capacity until November 14, 2003, when he was placed on “leave without pay” status because his employer could not accommodate the physical restrictions that were imposed by Dr. Watermeier on November 5, 2003. Mr. Masinter has not worked since November 14, 2003.

ACTION OF THE TRIAL COURT

Mr. Masinter filed his Disputed Claim for Compensation (LDOL-1008) on December 31, 2003. Trial was held on February 15, 2005. A final judgment denying Mr. Masinter’s claim for compensation benefits was rendered and signed on April 1, 2005. Written reasons were assigned on June 27, 2005. Mr. Masinter filed a Motion for Devolutive Appeal on April 6, 2005.

ASSIGNMENT OF ERROR

Appellant alleges that the trial court erred in determining that Mr. Masinter failed to prove causation, because the court failed to apply the legal presumption that Mr. Masinter’s work' injury aggravated, accelerated or combined with his preexisting disease or infirmity to produce his disability.

STANDARD OF REVIEW

| (¡Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Wilkerson v. City of New Orleans Fire Dept., 2003-1550 (La. App. 4 Cir. 3/3/04); 871 So.2d 375, 378. Under this standard, the issue is not whether the trier of fact was right or wrong but whether the factfinder’s conclusion was a reasonable one. Banks v. In dustrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97); 696 So.2d 551, 556. Where there are two permissible views of evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State Through Dept. of Transportation and Development, 617 So.2d 880, 882-83 (La.1993). Accordingly, if the factfinder’s findings are reasonable in light of the record reviewed in its entirety, this court may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Wilkerson, 2003-1550 (La.App. 4 Cir. 3/3/04); 871 So.2d at 378.

LAW AND ANALYSIS

An injured employee is entitled to receive benefits for an injury that arises out of and in the course and scope of his employment. LSA-R.S. 23:1031(A). In order to recover, the injured employee must establish (1) a work related accident; (2) a disability; and (3) a causal connection between the accident and the disability. Wilkerson v. City of New Orleans Fire Dept., 2003-1550 (La.App. 4 Cir. 3/3/04); 871 So.2d 375, 378.

Mr. Masinter has alleged that the fall on November 14, 2002, aggravated pre-existing injuries. It is undisputed the Mr. Masinter was involved in a work related accident. It is also undisputed that Mr. Masinter has a disability.

In a worker’s compensation case, the injured employee bears the initial burden of establishing the causal connection between the disability and the ^employment accident by a reasonable preponderance of the evidence. Quinones v. U.S. Fidelity and Guar. Co., 93-1648 (La. 1/14/94); 630 So.2d 1303, 1306. It is not necessary for the injured employee to establish the exact cause of the disability, but it is necessary for the injured employee to demonstrate by a preponderance of proof that the accident has a causal relationship with the disability. Quinones, 93-1648 (La. 1/14/94); 630 So.2d 1303, 1306.

Mr. Masinter’s condition deteriorated following the accident. Mr. Masinter began treating with his choice of orthopedic surgeon, Dr. John Watermeier, on January 23, 2003. Dr. Watermeier allowed Mr. Masinter to continue working in his regular employment as a court security officer, although he expressed his concerns about doing so. Dr. Watermeier ordered a cervical and lumbar MRI and EMG of the upper and lower extremities. Mr. Masin-ter’s orthopedic problems were continuing as of April 23, 2003, his next visit to Dr. Watermeier, when his right knee was injected. Mr. Masinter was now complaining of disturbed sleep and Dr. Watermeier noted that he walked with a stiff gait. However, Mr. Masinter was allowed to work regular duty. Dr. Watermeier next examined Mr. Masinter on June 4, 2003 and noted a worsening of Mr. Masinter’s cervical condition. Dr. Watermeier ordered a muscle stimulator, and again released Mr. Masinter to work regular duty. Mr. Masinter was examined on August 27, 2003 and was again allowed to work regular duty, although Dr. Watermeier noted continued worsening of the cervical condition and worsening of the lumbar condition. On November 5, 2003, Mr. Masinter was complaining of worsening neck, back, right shoulder pain and right hip pain. Dr. Watermeier noted cervical radiculopa-thy, right shoulder pain, loss of motion and weakness, and bi-lateral hand pain, numbness, tingling and weakness. He injected Mr. Masinter’s right shoulder. He reviewed cervical Land lumbar MRIs and noted degenerative disc disease and disc bulges at multiple levels. Dr. Watermeier ordered a lumbar paravertebral selective nerve root block. For the first time, Dr. Watermeier limited Mr. Masinter to light duty, with restrictions on stooping or bending, lifting, and repetitive activity. Mr. Masinter had to alternate sitting and standing and was restricted from prolonged looking up or down. Dr. Water-meier again limited Mr. Masinter to light duty employment when he examined him on February 11, 2004 and April 5, 2004. Dr. Watermeier recommended a right shoulder arthroscopy and prescribed a soft cervical collar on February 11, 2004.

Appellee points out that at the time of the accident, Mr. Masinter was a 69 year-old man with a long history of medical problems. He was diagnosed with peripheral neuropathy, restless leg syndrome and lumbar disc disease in 1993 by his neurologist. At his initial visit with the neurologist in 1993, Mr. Masinter reported back problems as long as he could remember. He was in a motor vehicle accident in 2000, after which he received treatment for pain in his neck, bilateral arms, elbow, lower back and upper back. The medical records show that the claimant had a herniated disc in his back as early as 2001, the same one for which he was receiving treatment as early as approximately one month before his alleged accident on November 14, 2002. In fact, Mr. Masinter was treating with Dr. David Shawa, a pain management specialist, for epidural steroid injections for pain in his back and leg at least as late as October 7, 2002, only one month prior to his alleged accident. On that date, Mr. Masinter was complaining of pain rating 9 out of 10, on a scale of 1 to 10.

In addition, Mr. Masinter had right shoulder problems prior to the alleged work accident in November of 2002. The records from Mr. Masinter’s neurologist | fishow right shoulder problems as early as 1985, with paresthsia in the right hand. Furthermore, the same neurologist rendered an opinion on October 30, 2003, stating that Mr. Masinter had congenital myo-pathy causing muscle weakness in his legs, which restricts him from vigorous intensity physical exercise. Medical records from the Department of Veterans Affairs confirm Mr. Masinter’s significant pre-exist-ing leg problems.

It is undisputed that a month before his accident Mr. Masinter was in pain. It is also undisputed that in the year following his accident Mr. Masinter’s physical condition worsened to the point where he could no longer work. We have to determine whether it was an abuse of discretion to find that the accident did not cause or aggravate his previously precarious health to worsen.

Mr. Masinter argues that there is a legal presumption that his disability was caused by the accident. The Supreme Court wrote that:

A claimant’s disability is presumed to have resulted from an accident ... if before the accident the injured person was in good health, but commencing with the accident the . symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing either that there is sufficient medical evidence to show there to be a reasonable possibility of causal connection between the accident and the disabling condition ... or that the nature of the accident, when combined with the other facts of the case, raises a natural inference through human experience of such a causal connection.

Walton v. Normandy Village Homes Ass’n, Inc., 475 So.2d 320, 324 (La.1985) (internal citations omitted). This presumption is inapposite to this case, since Mr. Masinter clearly was not “in good health” before the accident. Mr. Masinter contends that we should define “good health” simply as the absence of disability. We believe that absence of a disability is a characteristic of “good health,” but not the definition. Mr. Masinter was not disabled prior to the accident, but his health was not great.

Mr. Masinter testified that he had been in car accidents in 2000 and in March 2004, and he was treated for both. He also testified that in 1985 he was having problems with his right shoulder as well as the grip in his right hand. He also admitted that he had congenital myopathy before the accident, which causes muscle weakness in his legs and restricts his movement. In addition, the claimant never complained of any shoulder problems to Dr. Watermeier until November 5, 2003.

We believe that the trial court denied the claim because Mr. Masinter was a 69-year old man with extensive medical problems for which he received medical treatment up until the time of the accident. The denial of Mr. Masinter’s claim was reasonable, considering the following facts: he worked for a year without his injuries interfering with his ability to work; he had previously had been diagnosed with congenital myopathy and a degenerative spinal condition; he was involved in car accidents in 2000 and 2004; he stated that he had a lot of pain in his back a month before the accident; and, he was 69 years old at the time of the accident. We review the trial court’s decision using an abuse of discretion standard. We might have made a different factual determination, but we cannot say that the trial court was manifestly erroneous in denying Mr. Masinter’s claim.

CONCLUSION

For the foregoing reasons, the opinion from the Office of Workers’ Compensation Administration is affirmed.

AFFIRMED.