author: PETERS, J. PICKETT, J.,

text:
    Germaine BROOKS, et al. v. CITY OF LAFAYETTE, et al. Randy Fontenot, et al. v. Patterson Insurance, et al.
    No. 06-1625.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 5, 2007.
    Rehearing Denied Jan. 23, 2008.
    Lawrence N. Curtis, Lawrence N. Curtis, Ltd, Lafayette, LA, for Plaintiffs/Appellants, Randy Fontenot and Susanne Fontenot.
    Rickey W. Miniex, Clyde R. Simien, Todd M. Swartzendruber, Holli K. Yandle, Simien <& Miniex, Lafayette, LA, for Defendant/Appellee/Appellant, Lafayette City-Parish Consolidated Government.
    Colleen McDaniel, Assistant Attorney General, Louisiana Department of Justice, Division of Risk Litigation, Lafayette, LA, Counsel for Defendant/Appellee, The State of Louisiana Through the Department of Transportation and Development.
    Court composed of Chief Judge ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS, JIMMIE C. PETERS, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PETERS, J.

It For the reasons assigned in Fontenot v. Patterson Insurance Co., 06-1624 (La.App. 3 Cir. 12/5/2007), 972 So.2d 401, 2007 WL 4245674, we affirm the third-party demand judgment in favor of the Lafayette City-Parish Consolidated Government and against Germaine Brooks and the State of Louisiana, Department of Transportation and Development. We order that Ger-maine Brooks and the State of Louisiana, Department of Transportation and Development, shall be responsible for court costs, including the cost of this appeal, in proportion to their fault. Pursuant to the requirement of La.R.S.13:5112(A), we set the fifty percent share of costs assessed to the State of Louisiana, Department of Transportation and Development in a monetary amount, $371.86 in lower court costs and $4,193.34 in appellate costs.

AFFIRMED.

PICKETT, J., dissents and assigns written reasons.

PICKETT, J.,

dissenting.

bFor the reasons assigned in my dissent in Fontenot v. Patterson Insurance Co., 06-1624 (La.App. 3 Cir. 12/5/2007), 972 So.2d 401, 2007 WL 4245674,1 respectfully dissent.


source: Caselaw Access Project

author: DAVID S. GORBATY, Judge. BELSOME, J.,

license: Public Domain

text:
    Arthur SNOWTON v. SEWERAGE AND WATER BOARD.
    No. 2007-CA-0677.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 5, 2007.
    Rehearing Denied Jan. 23, 2008.

      W. Jared Vincent, Law Offices of William S. Vincent, Jr., New Orleans, LA, for PlaintiffiAppellee.
    Gerard M. Victor, Special Counsel, Jacob Taranto, III, Deputy Special Counsel, Brian A. Ferrara, Attorney IV, Sewerage & Water Board of New Orleans, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY, Judge ROLAND L. BELSOME).
   DAVID S. GORBATY, Judge.

liThe Sewerage & Water Board of New Orleans appeals a judgment of the Office of Workers’ Compensation Administration. For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY:

Arthur Snowton was allegedly injured on August 15, 2000, while working for the Sewerage & Water Board of New Orleans (hereinafter SWB). He was employed as a laborer and claims to have injured himself while attempting to lift a manhole cover.

Mr. Snowton was treated by Dr. Luci-enne Miranne who diagnosed a L4-L5 herniation, with radiculopathy. Dr. Miranne performed a lumbar laminectomy in early October, 2002. After the surgery, Mr. Snowton was seen by Dr. Miranne’s associate, Dr. Gregory Dowd, because of continued complaints of pain. Dr. Dowd recommended epidural injections and referred Mr. Snowton to Dr. Joseph Crapanzano for the injections. Because Mr. Snowton continued to complain of pain, Dr. Crapan-zano referred him to the Medical Musculo-skeletal Institute.

li>The Medical Musculoskeletal Institute is a clinic for rehabilitation of injured workers. After examination and treatment of Mr. Snowton for approximately one year, Dr. Karen Ortenburg, found Mr. Snowton capable of returning to full time work in a light/medium physical demand job.

As part of his treatment at the Medical Musculoskeletal Institute, Mr. Snowton was examined by Dr. Megan Ciota, a clinical psychologist. Mr. Snowton tested in the extremely low end of the intellectual ability range; however, Dr. Ciota was of the opinion that Mr. Snowton was exhibiting sub-maximal effort. When asked about the severity of his symptoms, Dr. Ciota opined that Mr. Snowton was exaggerating.

In February of 2003, SWB hired Hey-ward Johnson, a medical and vocational rehabilitation consultant, to assist Mr. Snowton in finding suitable employment. Before a job search was conducted, Joseph Shine, a physical therapist, evaluated Mr. Snowton’s functional capacity and found that he was capable of working an 8 hour day in a light duty capacity, occasionally lifting up to 20 pounds, and frequently lifting up to 10 lbs. Mr. Shine also found that Mr. Snowton was demonstrating signs of symptom exaggeration and disability magnification.

Beginning in January of 2004, Mr. Snowton saw Dr. Charles Murphy, an orthopedist, with whom he treated until July 2004. Dr. Murphy ordered an EMG/NCS, which confirmed the previous diagnosis of L5 radiculopathy. Dr. Murphy’s report indicated that Mr. Snowton did not believe he could return to any Rtype of work because of having “bad days.” Dr. Murphy, however, was of the opinion that Mr. Snowton had reached maximum medical improvement and could return to work in a sedentary to light position. The job should not require prolonged standing or sitting in one position, nor carrying or lifting of more than 10 pounds.

In November 2006, the issues of whether Mr. Snowton could work at all and his rate of compensation were tried. The judge ruled that Mr. Snowton was no longer temporarily disabled, and that he was entitled to supplemental earnings benefits with an earnings rate of zero. Further, Mr. Snowton was entitled to a presumption of working 40 hours per week for each of the 4 weeks preceding the accident. Lastly, the judge awarded penalties and attorney fees related to the calculation of benefits and failure to pay correctly and timely.

DISCUSSION:

In its first assignment of error, SWB argues that the trial court committed manifest error in finding that Mr. Snowton was not mentally or physically capable of working at least one of the jobs identified by the vocational rehabilitation counselor. We agree.

A workers’ compensation judge’s finding regarding disability is a factual finding which should be given great weight and should not be overturned absent manifest error. Bolton v. Grant Parish School Bd„ 98-1430 (La.3/2/99), 730 So.2d 882.

The trial court based its opinion concerning Mr. Snowton’s intellectual disability on testimony from Edward Ryan, a vocational expert hired by Mr. Snowton. After meeting with Mr. Snowton the morning of trial, Mr. Ryan | concluded that the claimant could work an 8 hour day if he was allowed to change positions, that is, not stand, sit, etc., for more than about 2 hours a day. Mr. Ryan also speculated that the high school diploma obtained by Mr. Snowton was somehow not legitimate. He opined that it was presented at a time when some schools gave diplomas to handicapped children who had not completed the same requirements as non-handicapped children. No evidence was submitted to substantiate this opinion.

There was conflicting evidence as to whether Mr. Snowton could read at all, but it was determined by testing, that if he could read, it was at a first-grade level at best. The trial court found that Mr. Snowton had only recently obtained a driver’s license, after taking an oral examination; however, there was evidence that he previously had a driver’s license, but had let it expire.

The trial court based its findings relative to Mr. Snowton’s physical limitations on the report of Dr. Murphy, who found Mr. Snowton could return to a sedentary to light position.

The possible jobs identified by Mr. Johnson based on the functional capacity examination were groundskeeper for SWB, and equipment operator or office assistant, both civil service jobs. Additional jobs identified for possible employment were groundskeeper for an apartment complex, a helper in a T-shirt print shop, and a convention badge checker.

Mr. Ryan testified that Mr. Snowton could not perform any of the jobs identified, an opinion with which the trial court agreed. Mr. Ryan ascertained from a supervisor for the convention company that the badge checker job would require standing for an 8 hour shift. The flier for the private groundskeeper job stated that lifting up to 40 pounds was required, and the groundskeeper for SWB would | ^require lifting of up to 20 pounds. These requirements placed the jobs outside the work restrictions placed by Dr. Murphy. Mr. Ryan did not believe Mr. Snowton could work at the T-shirt shop because of both physical and intellectual restrictions. Without any specific knowledge of the job requirements, Mr. Ryan stated that Mr. Snowton would probably have to stand up 8 hours a day. Further, the job requirements were to take and file orders, and do inventory control. He did not believe Mr. Snowton could do any of these things because of his limited education.

Mr. Ryan did not contact anyone at civil service to determine the parameters of the jobs identified. Despite this lack of actual knowledge, he opined that the office assistant job would require some clerical work, which Mr. Snowton could not do because of his limited reading skills. He did not feel Mr. Snowton could perform as an equipment operator because he presumed this would mean operating heavy equipment.

Cynthia McGuire, the workers’ compensation coordinator for SWB testified that the office assistant job might require making copies and running errands within the office. The job description did not include filing papers or typing. The equipment operator job included driving a small pickup truck to job sites for deliveries of items loaded onto the truck by other workers. The SWB groundskeeper job would entail using a stick with a nail attached to pick up trash. Mr. Snowton could empty his bag at anytime to avoid lifting more than 10 pounds. He could also work inside the building answering the phone. Ms. McGuire testified that the supervisor of this job was more than willing to accommodate a worker’s limitations.

| ¡¡Based on the above testimony and physical evidence, the trial judge concluded that Mr. Snowton could not work at any of the jobs identified as appropriate. Thus, she concluded that Mr. Snowton was entitled to supplemental earnings benefits at an earnings rate of zero.

Interestingly, in reasons for judgment the trial judge stated that Mr. Snowton was invited to apply for the groundskeeper job with SWB, he was not offered the job. We find this to be a distinction without a difference. All of the jobs identified as appropriate for Mr. Snowton were available at the time offered; however, the record indicates that Mr. Snowton never attempted to apply for any of the jobs. The following testimony was elicited from Mr. Snowton:

Q. Mr. Snowton, do you ever remember being offered any jobs by the Sewerage and Water Board?
A. They gave me a couple of jobs.
Q. I’m talking about after your accident.
A. I think so, but I can’t remember the guy’s name. He used to come by the house all the time. He tried to get me to go back to work. And I told him I got to have surgery in a few more days, but he insisted on that he’s going to find me a job, though. That’s all I remember about him.
Q. Okay. Do you remember any of the jobs they offered you?
A. Oh, boy. I can’t remember most of them. Car wash I think, something like that. I said, “How you going to get me a job? Water Board got pools now?”
Q. Oh, no. What I meant was what jobs did the Sewerage and Water Board itself offer to you?
A. What you saying now?
Q. At their premises, that you could do for them?
A. Nothing, nothing, because I couldn’t do nothing for them.

Mr. Snowton recalled these visits to be before his surgery. However, Mr. Snow-ton’s surgery was in 2002, and Mr. Johnson did not begin counseling Mr. Snowton until 2003.

[7The reports of Heyward Johnson offered into evidence likewise indicate that Mr. Snowton never attempted to apply for any of the jobs identified. Mr. Snowton did inquire about a civil service position as a utility plant worker; however, despite two opportunities to test for the job, Mr. Snowton did not show up either time.

All of the jobs identified by Mr. Johnson were approved by Dr. Ortenburg, who had already pronounced Mr. Snowton at maximum medical improvement. Also, at the time the jobs were offered, Mr. Snowton was deemed capable of working in a light to medium position, lifting and/or carrying up to 40 pounds. Thus, even when considering the later evaluation by Dr. Murphy, limiting Mr. Snowton to a sedentary to light position, with maximum lifting and or carrying up to 10 pounds, the groundskeeper job with SWB and the office assistant job were within the restrictions placed on Mr. Snowton’s abilities.

We also note that the trial judge considered the SWB groundskeeper job to be a type of “sham rehabilitation” based on Vermilion Parish Police Jury v. Williams, 02-12 (La.App. 3d Cir.7/3/02), 824 So.2d 466, 474. The concurrence on which the trial judge relied was based on several other Third Circuit cases, which this Court has not followed, and does not choose to do so at this time.

Accordingly, we find the trial court erred in finding Mr. Snowton entitled to SEB’s after he reached maximum medical improvement. Mr. Snowton was capable of working in at least two positions offered to him. Each job would have paid him more than 90 percent of his pre-accident wage. SWB is therefore entitled to a credit for all SEB’s paid to Mr. Snowton.

SWB’s second assignment of error is that the lower court erred in presuming Mr. Snowton worked a 40 hour week. See La.Rev.Stat. 23:1021(12)(a) provides in pertinent part:

|s(i) If the employee is paid on an hourly basis and the employee is employed for forty hours or more, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater, or (ii) If the employee is paid on an hourly basis and. the employee was offered employment for forty hours or more but regularly, and at his own discretion, works less than forty hours per week for whatever reason, then, the average of his total earnings per week for the four full weeks preceding the date of the accident,....

The trial judge relied on Price v. Fireman’s Fund Ins. Co., 502 So.2d 1078 (La.1987), in holding that Mr. Snowton was entitled to a presumption of working full 40 hour weeks for the 4 weeks preceding the accident. The record contains evidence submitted by SWB that Mr. Snow-ton routinely missed work without pay. In 2000, prior to the accident, he missed 18 days of work out of the 163 work days available. In 1999, he missed 35.75 days without pay, having already used his 7 sick days and 15.25 annual leave days. We find that this sufficiently rebuts the presumption provided in La.Rev.Stat. 23:1021(12)(a)(i). To find otherwise, negates the purpose of La.Rev.Stat. 23:1021(12)(a)(ii).

However, our review of the record also reveals that the amount paid by SWB in TTD benefits was less than it should have been, although by a smaller amount than that found by the trial court.

Neither party disputes that Mr. Snow-ton was paid $6.93 per hour. According to the statute, his average weekly wage at 37.97 hours per week (applying the reduction allowed by statute), was $263.15. This is the same amount calculated by SWB. Two-thirds of $263.15 is $175.44. After deducting the $31.50 ordered by State for a child support income assignment, Mr. Snowton should have been paid $143.94. SWB paid $133.44 in TTD benefits. | ¡Accordingly, Mr. Snowton is entitled to the difference between what was actually paid and the amount he should have been paid.

SWB’s last assignment of error addressed the trial court’s award of penalties and attorney fees for miscalculating benefits and failure to pay them timely. La. Rev.Stat. 23:1201 F provides in pertinent part:

Failure to provide payment in accordance with this Section ... shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; ...
(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.

We have determined that Mr. Snowton was underpaid TTD’s in the approximate amount of $10.00 per week; however, we have also determined that Mr. Snowton was not entitled to SWB payments at all. Because we find that Mr. Snowton’s claim was reasonably controverted, we reverse the award of penalties and attorney fees.

Accordingly, for the reasons assigned above, we reverse the judgment of the trial court and remand this matter for recalculation of benefits and credits in accordance with this opinion.

REVERSED AND REMANDED.

BELSOME, J., dissents with reasons.

BELSOME, J.,

dissents with reasons.

hi respectfully dissent from the majority opinion.

I find that the workers’ compensation judge had ample evidence from which to draw her conclusions of fact. The judge recognized Mr. Snowton’s physical and mental limitations, finding him unemployable since his work related accident and subsequent surgery. One of Mr. Snow-ton’s treating physicians, Dr. Charles Murphy’s report clearly defined his physical limitations as no lifting or carrying of more than 10 pounds, no prolonged sitting, and no prolonged standing. He further found that Mr. Snowton could work approximately three hours in a day but not three consecutive hours.

The record also indicates that Mr. Snow-ton has an I.Q. of 59. The psychologist that tested him suggested, and the majority accepted, that he was “exhibiting sub-maximal effort” during the testing. The evidence in the record completely contradicts that possibility. Mr. Snowton testified that he attended school as a special education student and admitted to being illiterate; his employment history was limited to dishwasher, janitor, and laborer. I find, as did the workers’ compensation judge, that the testimony regarding Mr. Snowton’s education and employment background is consistent with his I.Q. evaluation. Furthermore, the workers’ compensation judge observed him at trial and did not Ipfind him to be a malingerer. Instead the judge found him to be too limited in his physical and mental capabilities to find gainful employment. That conclusion of fact is reasonable given the testimony of vocational expert, Edward Ryan coupled with Dr. Murphy’s report.

If the trial court’s findings are reasonable in light of the record the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). As stated by the majority, a finding of disability by a workers’ compensation judge is a factual finding which should be given great weight. Bolton v. Grant parish School Bd„ 98-1430 (La.3/2/99), 730 So.2d 882. Given the record as a whole the OWC judge’s findings cannot be deemed manifestly erroneous. Therefore, this Court should not disturb the OWC judge’s determination. Accordingly, I would affirm the judgment and amend to reflect the proper SEB calculation as set forth in the majority’s opinion.


author: SAUNDERS, Judge.

text:
    Kathy BENNETT v. PILGRIM’S PRIDE.
    No. WCA 07-753.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 2007.

      William Daniel Dyess, Dyess Law Firm, LLC, Many, LA, for Plaintiff/Appellee, Kathy Bennett.
    Dona Kay Renegar, Huval, Veazey, Felder, Lafayette, LA, for Defendant/Appellant, Pilgrim’s Pride Corporation.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and J. DAVID PAINTER, Judges.
   SAUNDERS, Judge.

11 This is a workers’ compensation case. On June 7, 2004, the employee fell from a lift truck causing injury to her lower back. Workers’ compensation medical and indemnity benefits were paid from August 13, 2004 through February 17, 2006. On February 17, 2006, the employee’s indemnity benefits were discontinued.

After a trial, the Workers’ Compensation Judge (WCJ) found that the employee was entitled to reinstatement of her indemnity benefits and that the employee was entitled to $2,000 in penalties and $5,000 in attorney fees. The employer appealed raising two assignments of error.

We affirm the WCJ on both assignments of error. Further, we award the employee $2,500 in additional attorney fees for work done on this appeal.

FACTS AND PROCEDURAL HISTORY:

Kathy Bennett (hereinafter “Bennett”) was hired by Pilgrim’s Pride (hereinafter “the employer”) in November 2003 as a truck driver. Bennett was promoted to Embrex Leader and was working in that capacity on June 7, 2004. On that date, while she was in the process of unloading chick boxes, Bennett slipped and fell onto her right-sided buttock.

Bennett was not initially removed from work; therefore, indemnity benefits were not instituted. She first treated with Dr. James Knecht and was reportedly feeling much better on July 23, 2004. After that date, Bennett began experiencing increased pain on the right side of her lower back, her right hip, her right buttock and her right thigh.

Because of the increased pain she was experiencing, Bennett began treating with Dr. John P. Sandifer on August 10, 2004. Dr. Sandifer initially recommended very light duty work for several weeks. However, within two weeks, he decreased her | ¡¡work status to sedentary or light work. By September 27, 2004, Dr. Sandifer concluded that Bennett could not return to work and that Bennett needed an MRI. An MRI taken August 24, 2004, indicated a small, central herniated nucleus polposus at L4-5 causing very mild effacement of the thecal sac with no paracentral later components.

On February 1, 2005, the employer sent Bennett to its own orthopedic surgeon, Dr. Steven Kautz. Dr. Kautz opined that Bennett could return to work as he could find no objective evidence to support Bennett’s complaints of pain.

Bennett then reported to Dr. Sandifer that she was experiencing urinary incontinence and bowel control problems. Dr. Sandifer sought another MRI and referred Bennett to a neurosurgeon, Dr. Donald Smith. Dr. Smith examined Bennett on June 13, 2005. Dr. Smith concluded that Bennett had a very mild lumbar degenerative disc disease with no objective evidence of abnormality on physical examination. Dr. Smith opined that Bennett did not need another MRI and that she could return to work without restrictions. Dr. Kautz agreed with Dr. Smith’s findings.

On January 4, 2006, Bennett was examined by Dr. Karl K. Bilderback, an orthopedic surgeon asked by the workers compensation court to perform an independent medical examination. Dr. Bilderback found that Bennett did not display any objective evidence of an injury consistent with her symptoms, that Bennett displayed characteristics of symptom magnification, and that Bennett could return to work at full capacity. Based on Dr. Bilderback’s opinion and the opinions of Dr. Kautz and Dr. Smith, the employer terminated Bennett’s indemnity benefits on February 17, 2006.

Dr. Sandifer continued to treat Bennett. Subsequent to the employer |aterminating Bennett’s indemnity benefits, Dr. Sandifer opined that Bennett could not return to work and that she needed another MRI. On July 17, 2006, Bennett underwent another MRI of the lumbar spine which revealed dessicated discs at L4-5, L5-S1, and a tear in the annulus fibrosis of L4-5 with bulging of the annulus fibrosis involving the right lateral recess at that level. Dr. Sandifer opined that the MRI showed some possible nerve-root involvement on the right side and that the annular tear was probably caused by the accident.

The employer did not investigate further into the compensability of Bennett’s claim. A trial was held on October 31, 2006. On March 16, 2007, the WCJ entered an oral ruling in favor of Bennett that was memorialized in a Judgment dated March 29, 2007. The WCJ found that Bennett was entitled to reinstatement of temporary, total disability benefits at the rate of $429.00 per week effective February 17, 2006 through August 16, 2006, with supplemental earnings benefits with zero earning capacity to be paid at a weekly basis of $429.00. The WCJ further awarded penalties of $2,000 in favor of Bennett for failure to reinstate benefits following the depositions of Drs. Sandifer, Bilderback and Kautz in October 2006, but declined to assess penalties or attorney fees for the termination of weekly benefits on February 17, 2006. Finally, the WCJ awarded Bennett $5,000.00 in attorney fees.

The employer appealed alleging: (l)that the WCJ erred in finding that Bennett met her burden of proving temporary and total disability by clear and convincing evidence based upon the medical evidence, and (2) that the WCJ erred in awarding a penalty and attorney fees for the employer’s alleged failure to reasonably controvert Bennett’s entitlement to reinstatement of temporary and total disability benefits. We find that the two assignments raised by the employer lack merit as the WCJ’s ^judgment was not manifestly erroneous. All costs of this appeal are to be paid by the employer. We award $2,500.00 in additional attorney fees to Bennett for work performed on this appeal.

ASSIGNMENTS OF ERROR:

1. Did the WCJ err in finding that Bennett met her burden of proving temporary and total disability by clear and convincing evidence based upon the testimony of physicians that disc dessication could be the cause of her buttock pain but not her leg pain, and when three physicians testified that the claimant had no evidence of nerve compression resulting from the work accident and could return to work without restrictions?

2. Did the WCJ err in awarding a penalty and attorney fees for the employer’s alleged failure to reasonably controvert entitlement to temporary and total disability benefits by relying on the testimony of claimant’s neurosurgeon, employer’s orthopedist and the State’s independent orthopedist that the claimant had no evidence of nerve root compression to cause her leg pain and could return to work without restrictions?

ASSIGNMENT OF ERROR # 1:

The employer argues that the WCJ erred in finding that Bennett met her burden of proving temporary and total disability by clear and convincing evidence based upon the medical evidence. We disagree.

The Louisiana Supreme Court stated the following in Freeman v. Poulan/Weed Eater, 93-1530, pp. 4-5 (La.1/14/94) 630 So.2d 733, 737-738:

In a workers’ compensation case, as in other cases, the appellate court’s review is governed by the manifest error or clearly wrong standard. A court of appeal may not set aside a trial court’s or a jury’s finding of fact in absence of “manifest error” or unless it is “clearly wrong.” The appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one, after reviewing the record in its entirety. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. (Citations omitted.)

Louisiana Revised Statute 23:1221(1)(c) states, in pertinent part, that, | ¡^‘compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any assumption of disability, that the employee is physically unable to engage in any employment

This court, in Wiltz v. Baudin’s Sausage Kitchen, 99-930 p. 17-18 (La.App. 3 Cir. 6/19/00), 763 So.2d 111, 123, writ denied, 00-2172 (La.10/13/00), 771 So.2d 650, stated the following:

We have said “that positive findings should be afforded greater weight than negative findings as to the existence or nonexistence of a particular medical condition.” Danzey v. Evergreen Presbyterian Ministries, 95-167, p. 10 (La.App. 3 Cir. 6/7/95); 657 So.2d 491, 497. See also, Campbell v. Luke Constr. Co., 465 So.2d 688 (La.1985). In Johnson v. Temple-Inland, 95-948 (La.App. 3 Cir. 1/31/96); 670 So.2d 388, unit denied, 96-544 (La.4/19/96); 671 So.2d 919, we held although the court-appointed expert’s opinion must be considered prima facie true, the opinion of the court-appointed expert is not conclusive. We also said in Menard v. Winn Dixie Louisiana, Inc., 93-1497, p. 13 (La.App. 3 Cir. 6/1/94); 640 So.2d 775, 783:
... [W]hile the law permits the hearing officer to appoint a physician to perform an independent medical examination, it does not require the hearing officer to accept his conclusions. A hearing officer simply does not cede the responsibility afforded [his] office when [he] chooses to appoint an independent medical examiner. (Citations omitted)(Emphasis added).
Further, it had been a long held tenet “that the testimony of a claimant’s treating physician should ordinarily be afforded more weight than that of an examining physician.” Watkins v. Asphalt Associates, Inc., 96-249, p. 9 (La.App. 3 Cir. 12/4/96); 685 So.2d 393, 398, Johnson, supra, 670 So.2d 388. The reason for this preference is “that the treating physician is more likely to know the patient’s symptoms and complaints due to repeated examinations and sustained observations.” Wells, v. Allstate Ins. Co., 510 So.2d 763, 767-768 (La.App. 1 Cir.), writ denied, 514 So.2d 463 (La.1987).

Therefore, given the standard of review and the burden on Bennett, this court must determine, after a thorough review of the record, whether it was reasonable for the WCJ to find that Bennett proved by clear and convincing evidence that she was | ^temporarily, physically incapable of engaging in any employment. We find that there is ample evidence in the record to hold that the WCJ’s judgment was reasonable.

Dr. John P. Sandifer was Bennett’s treating orthopedic surgeon for over two years. He has been of the opinion that Bennett could not return to her previous employment since November 15, 2004, up through the date of the trial. Dr. Sandifer based his opinion upon both subjective and objective evidence.

Dr. Sandifer testified that Bennett displayed subjective symptoms of initial pain in her lower back and hip that gradually worsened so that the pain, at the time of trial, now radiates to the right buttock and down through the right knee, sometimes going to her lower right leg.

The employer contends that Bennett’s subjective complaints were questionable as Bennett’s condition began to worsen only after she received a letter threatening her termination should she continue to be tardy and continue to perform poorly at her job. The employer points to the medical records of Dr. James D. Knecht, a general practitioner, that indicate Bennett was making progress prior to her condition worsening. This contention is rebutted by the testimony of Dr. Sandifer that Bennett has been a very compliant patient and that he had no reason to suspect any sort of symptom magnification or malingering. Further, Randy Brewer, Bennett’s boyfriend, testified that Bennett no longer participated in several activities that she used to enjoy such as softball, fishing, riding four wheelers or taking walks. The consistent complaints of pain from Bennett corroborated by the testimony of her boyfriend, Randy Brewer, and the testimony of Dr. Sandifer, make reasonable a finding of fact by the WCJ that Bennett’s condition was legitimate.

Dr. Sandifer also used objective evidence to formulate his opinion. Dr. Sandi-fer |7based his opinion that Bennett could not return to work on Bennett’s worsening performance in a straight leg test. Dr. Sandifer testified that Bennett had a positive straight leg test at 75 degrees on August 10, 2004, but showed a much worse performance with a positive straight leg test at 45 degrees on October 5, 2005. Dr. Sandifer testified that Bennett’s October 5, 2005, performance correlated with Bennett’s increased complaints of intensity in pain and symptoms from her visit and initial straight leg test on August 10, 2004.

Other objective evidence Dr. Sandifer used to bolster his opinion of Bennett’s work status was that of Magnetic Resonance Imaging (MRI) testing. Bennett had an MRI first on August 24, 2004. That MRI showed a small, central herniated nucleus pulposus at L4-5, causing very mild effacement of the thecal sac. Dr. Sandifer testified that this MRI was consistent with Bennett’s symptoms at that time. The second MRI, performed nearly two years later on July 17, 2006, had different results. The second MRI showed some degenerative changes at L4-5 and L-5, S — 1, with dessicated discs and a tear of the annulus fibrosis at L4-5, mainly on the right lateral recess. Again, Dr. Sandi-fer testified that the results of this MRI, potential irritation of the nerve that goes to Bennett’s right lower extremities, correlated with the symptoms that she experienced, i.e. radiating pain in her right buttock, right thigh, right knee and sometimes down below her right knee. Finally, Dr. Sandifer testified that it was more probable than not that Bennett’s initial fall caused the tear in her annulus fibrosis at L4-5.

The employer argues that the testimony of Drs. Kautz, Bilderback and Smith negated Dr. Sandifer’s opinion on Bennett’s work status. Dr. Steven Kautz, an orthopedic surgeon, saw Bennett only once, on February, 1, 2005. Dr. Kautz, based 1 supon his physical examination and the August 24, 2004, MRI, opined that Bennett had no nerve root compression, that she had no permanent injury, and that he had no reason to place any restriction upon her from returning to work.

While his opinion is contrary to that of Dr. Sandifer, during his deposition on October 12, 2006, Dr. Kautz was first shown the results of Bennett’s second MRI. After Dr. Kautz reviewed the results of the second MRI, the following exchange took place between counsel for Bennett and Dr. Kautz:

Q: You disagree with Dr. Sandifer?
A: What did Dr. Sandifer say?
Q: Dr. Sandifer recommended that she not return to work and her problem was worsening and that she may be in the future a candidate for surgery.
A: I don’t have any records of that, so I don’t know that I can answer for his opinion one way or another. I haven’t seen her since February of 2005 and based on the information I have, she had no radicular symptoms, she had no neurological symptoms, she had no focal findings and she had a fairly normal MRI.
Q: At that time?
A: At that time.
Q: But you did tell us that you have never seen this report except for today?
A: This is the first time I’ve seen this today.

This exchange indicates that Dr. Sandi-fer’s opinion was based upon more information than Dr. Kautz’s opinion expressed in his deposition. However, on October 30, 2006, Dr. Kautz did answer a series of questions sent to him via a letter from the employer. In that letter Dr. Kautz stated that he had looked at all of Dr. Sandifer’s records and the July 17, 2006, MRI and stated that his opinion of Bennett’s work status did not change although Dr. Kautz had not seen Bennett since February 1, 2005.

Dr. Donald R. Smith, a neurosurgeon, saw Bennett one time on June 13, 2005, |9when he performed a physical examination. Dr. Smith’s recommendations from that exam and his review of Bennett’s first MRI were that Bennett was at maximum medical improvement, that she could return to work, and that she did not need further invasive procedures, studies, or active treatment at this time.

Dr. Smith never reviewed the findings of Bennett’s second MRI. He simply formed his opinion on his one examination with Bennett and the results of her first MRI. Dr. Smith’s opinion is limited to the actual date that he saw Bennett, June 13, 2005. At any point in time following June 13, 2005, Dr. Smith’s opinion is secondary to that of Dr. Sandifer as Dr. Sandifer continued to see Bennett and had both the subjective evidence of the patient’s complaints and the objective results of her second MRI.

Dr. Karl K. Bilderback, an orthopedic surgeon asked by the WCJ to perform an independent medical examination, examined Bennett one time for about 20-30 minutes on January 24, 2006. Dr. Bilder-back testified that Bennett had no radicu-lar symptoms, that she displayed characteristics of symptom magnification, and that he would not place any restrictions on Bennett from returning to work at full capacity.

While the three examining physicians’ opinions differ from Dr. Sandifer’s, Dr. Kautz, Dr. Bilderback and Dr. Smith each saw Bennett only one time. Dr. Sandifer saw Bennett at least twenty times over two years. Dr. Sandifer testified to both subjective and objective evidence in formulating his opinion. Given that Dr. Sandi-fer’s opinion as a treating physician is ordinarily given greater weight than that of examining physicians, we cannot conclude that it was unreasonable for the WCJ to find that Bennett carried her burden of proof that she was temporarily and totally disabled. As such, we affirm the WCJ’s judgment in this assignment.

ASSIGNMENT OF ERROR # 2:

ImThe employer argues that the WCJ erred in awarding a penalty and attorney fees for the employer’s alleged failure to reasonably controvert Bennett’s entitlement to reinstatement of temporary and total disability benefits. This argument lacks merit.

The applicable standard of review in determining whether a defendant should be cast with penalties and attorney fees is the manifest error-clearly wrong standard. Latigue v. Christus St. Patrick Hosp., OS-871 (La.App. 3 Cir. 12/17/03), 861 So.2d 898, writ denied, 04-193 (La.3/26/04), 871 So.2d 349.

Louisiana Revised Statute 23:1201(1), in pertinent part, states:

Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims.

This court, in Johnson v. Transamerica Waste Co., 99-190, pp. 9-10 (La.App. 3 Cir. 6/2/99), 741 So.2d 764, 770, stated the following:

In order to avoid the imposition of penalties, an employer must reasonably controvert the workers’ compensation claimant’s right to benefits. The test to determine if the employer has fulfilled its duty is whether the employer or his insurer had sufficient factual and medical information to reasonably counter the factual and medical information presented by the claimant.(Citations omitted.)

An employer who handles a workers’ compensation claim cannot continually rely on earlier reports favorable to its position even in the face of newer reports showing a claimant’s disability. Such reliance will result in the imposition of penalties and attorney fees. Scott v. Town of Jonesville, 96 — 41 (La.App. 3 Cir. 7/3/96), 676 So.2d 1196.

In the case before us, the employer discontinued Bennett’s benefits on February 17, 2006. While there was evidence at that point in time to reasonably controvert Bennett’s entitlement to benefits, the employer subsequently received new reports Infrom Dr. Sandifer that indicated Bennett was disabled from work, and that she needed further diagnostic testing in the form of another MRI.

The record indicates that the employer did not dutifully perform any action from February 2006 to October 2006 to ascertain whether Bennett’s claim was compen-sable, with the exception of approving the July 17, 2006, MRI. In that time frame there were new reports from Dr. Sandifer reiterating his opinion on Bennett’s status and there were the results from the July 17, 2006, MRI indicating that Bennett had an annular tear at L4-5. Rather, it seems that the employer blindly relied on the earlier reports from Drs. Kautz, Bilder-back and Smith to maintain its position and sought justification for its continued failure in reinstating Bennett’s benefits via questions in the October 2006 depositions of Drs. Kautz and Bilderback.

In light of the record, we cannot find that the WCJ’s judgment awarding Bennett $2,000.00 in penalties and $5,000.00 in attorney fees was unreasonable. Accordingly, we affirm the WCJ’s judgment in this assignment.

Moreover, counsel for Bennett has requested additional attorney fees for work performed on appeal. An award for additional attorney fees is generally given when attorney fees were correctly granted on the trial level, for as to deny such a request on appeal would be inconsistent with the underlying judgment. Frank v. Kent Guidry Farms, 01-727 (La.App. 3 Cir. 5/8/02), 816 So.2d 969, writ denied, 02-1608 (La.6/27/03), 847 So.2d 1273. Given that counsel for Bennett has successfully defended the judgment of the WCJ, we grant $2,500.00 in additional attorney fees for work done on this appeal.

1 ^CONCLUSION:

The employer raised two assignments of error. We found that both assignments of error are without merit. All costs of this appeal are to be paid by the employer. We award $2,500.00 in additional attorney fees to Bennett for work performed in this appeal.

AFFIRMED.


author: GENOVESE, Judge.

text:
    STATE In the Interest of C.L.B.
    No. 2007-1021.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 19, 2007.
    Lloyd Dangerfield Lafayette, LA, for Defendant/Appellant A.A.K.
    L. Antionette Beard Lafayette, LA, for Plaintiff/Appellee State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

_[1A.A.K., the mother of the minor child, C.L.B., appeals a judgment of the trial court terminating her parental rights and certifying the minor eligible for adoption. B.J.B., the biological father of C.L.B., whose parental rights were also terminated, has not appealed the judgment, and his parental rights are not at issue. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The minor child, C.L.B., was born on January 5, 2005. C.L.B. was placed into the custody of the State of Louisiana, Department of Social Services (DSS), on November 6, 2005, when she was only ten months old. DSS was contacted by the Carenero Police Department, and C.L.B. was taken into state custody after A.A.K. and B.J.B. were arrested for domestic battery in which C.L.B. was allegedly being used as a “human shield” by her parents.

Ms. Heather Walton (Ms. Walton), a child protection investigator for DSS, responded to the police department’s call regarding C.L.B. According to Ms. Walton’s testimony at the termination hearing, when she reached the home of A.A.K. and B.J.B., she found C.L.B. asleep with a “very soiled” diaper. In addition, “[t]he house smelled of urine. There [were] cat feces on the floor. The police officers that were there didn’t want to go open the door to the bathroom for [her] to look around at the condition because they didn’t want to have to smell the bathroom again.” Ms. Walton was advised by A.A.K. that there was marijuana in the home and that there were no relatives in the state of Louisiana that would be able to care for C.L.B. As a result of Ms. Walton’s investigation, C.L.B. was removed from the home of A.A.K. |2and B.J.B. pursuant to an oral instanter order issued on November 6, 2005 after allegations of “[l]ack of supervision, dependency, threatened harm, and inadequate shelter” were validated. A written instanter order placing C.L.B. into the custody of DSS was signed by the trial court on November 7, 2005. On November 8, 2005, DSS filed an Order of Continued Custody, seeking a hearing to determine whether C.L.B. should be adjudicated a child in need of care pursuant to statute. See La.Ch.Code art. 606. On December 6, 2005, the trial court found that there was sufficient evidence to adjudicate C.L.B. as a child in need of care. C.L.B. has remained in the custody of DSS continuously since November 6, 2005.

On March 20, 2007, DSS filed a Petition for Termination of Parental Rights |3and Certification of Adoption. The petition alleged:

The parental rights of [A.A.K.] and [B.J.B.] should be terminated pursuant to the provisions of Louisiana Children’s Code Article 1015(4),[] inasmuch as said parents have abandoned their minor child by placing her in the physical custody of a nonparent or the Department or by otherwise leaving her under circumstances demonstrating an intention to permanently avoid parental responsibility, by reason of the following:
a.As of the filing of this petition, said parents have failed to provide significant contributions to their child’s care and support for a period of six consecutive months.
7.
Pursuant to provisions of Louisiana Children’s Code Article 1015(5),[] the parental rights of the parents, [A.A.K.] and [B.J.B.], should be terminated in as much as greater than one year has elapsed since the child was removed from the parents’ custody pursuant to a court order, there has been no substantial parental compliance with the |4case plan for services, which plan has been previously filed by the Department and approved by the Court as necessary for the safe return of the child; and, despite earlier intervention, there is no reasonable expectation of significant improvement in the parents’ condition or conduct in the near future, considering the child’s age and need for a safe, stable, and permanent home, for the following non-exclusive reasons, to-wit:
a. The parents failed to cooperate in the case plan established for reunification of the family;
b. The parents have failed to regularly exercise court approved visitations with their minor child;
c. The parents have failed to contribute to the cost of the child’s foster care as ordered by the court when approving the case plan;
d. The parents have repeatedly failed to comply with the required program of treatment and rehabilitation services provided in the case plan;
e. The parents have shown a lack of substantial improvement in redressing the problems which have prevented reunification;
f. The conditions that led to removal, or similar potentially harmful conditions, continue to persist;
g. The parents suffer from mental illness and/or mental deficiency, which renders them unable and/or incapable of exercising parental responsibilities without exposing the minor child to a substantial risk of serious harm, based upon expert opinion and/or based upon an established pattern of behavior; and,
h. The parents’ conduct reasonably indicates that they [are] unable or unwilling to provide an adequate permanent home for their minor child, based upon an established pattern of behavior.

A hearing on DSS’s petition to terminate the parental rights of A.A.K. and B.J.B. was held on April 24-25, 2007. At the conclusion of the hearing, the trial court took the matter under advisement. On May 1, 2007, the trial court rendered its judgment terminating the parental rights of A.A.K. and B.J.B. and declared C.L.B. | sfree for adoption. Only the mother, A.A.K., appeals.

ASSIGNMENTS OF ERROR

A.A.K. asserts three assignments of error:

1. The trial court erred in terminating the rights of [A.A.K.] for substantial non-compliance when she had completed several components of the case plan and was recently involved in psychological counseling.
2. The trial court erred in terminating the rights of [A.A.K.] where there was a reasonable expectation for improvement in [A.A.K.]’s condition.
3. The trial court erred in finding that termination was in the best interest of the child when considering the overall circumstances and notwithstanding [A.A.K.]’s slow progress due to economics.

LAW AND DISCUSSION

Our supreme court has recognized that the gravity of terminating parental rights requires our courts to impose a stricter standard of proof than the preponderance of the evidence standard; rather, the State must prove by clear and convincing evidence at least one of the statutory grounds contained in La.Ch.Code art. 1015 in order to terminate a parent’s rights. See State ex rel. J.M., 02-2089 (La.1/28/03), 837 So.2d 1247; La.Ch.Code art. 1035(A). “Further, even upon finding that the State has met its evidentiary burden, a court still should not terminate parental rights unless it determines that to do so is in the child’s best interests.” State ex. rel. J.M., 837 So.2d at 1253; see also La.Ch.Code art. 1037(B).

| Jn State in the Interest of S.M.W., C.D.W., C.N.W., and E.S.W., 00-3277, p. 14, (La.2/21/01), 781 So.2d 1223, 1233, our supreme court set forth the standard of review applicable to this ease:

“It is well-settled that an appellate court cannot set aside a juvenile court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong.” In re A.J.F., 00-0948 (La.6/30/00), 764 So.2d 47, 61. “Where there is conflicting testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even when the appellate court may feel that its own evaluations and inferences are as reasonable as those of the trial court.” Id.; Rosell v. ESCO, 549 So.2d 840 (La.1989). “[I]f the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Rosell, supra at 844. “Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong.” Id. “In its manifest error review, it is important that the appellate court not substitute its opinion when it is the juvenile court who is in the unique position to see and hear the witnesses as they testify.” In re A.J.F., supra at 62. “The trier of fact is not disadvantaged by the review of a cold record and is in a superior position to observe the nuances of demeanor evidence not revealed in a record.” Id.

Louisiana Children’s Code Article 1086(C) sets forth the evidence which may prove the lack of substantial parental compliance with the case plan as required by La.Ch.Code art. 1015(5):

C. Under Article 1015(5), lack of parental compliance with a case plan may be evidenced by one or more of the following:
(1) The parent’s failure to attend court-approved scheduled visitations with the child.
(2) The parent’s failure to communicate with the child.
(3) The parent’s failure to keep the department apprised of the parent’s whereabouts and significant changes affecting the parent’s ability to comply with the case plan for services.
(4) The parent’s failure to contribute to the costs of the child’s foster care, if ordered to do so by the court when approving the case plan.
|7(5) The parent’s repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
(6) The parent’s lack of substantial improvement in redressing the problems preventing reunification.
(7) The persistence of conditions that led to removal or similar potentially harmful conditions.

Likewise, La.Ch.Code art. 1086(D) sets forth the substantive elements which may prove the lack of a reasonable expectation of significant improvement as required by La.Ch.Code art. 1015(5):

D. Under Article 1015(5), lack of any reasonable expectation of significant improvement in the parent’s conduct in the near future may be evidenced by one or more of the following:
(1) Any physical or mental illness, mental deficiency, substance abuse, or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or based upon an established pattern of behavior.
(2) A pattern of repeated incarceration of the parent that has rendered the parent unable to care for the immediate and continuing physical or emotional needs of the child for extended periods of time.
(3) Any other condition or conduct that reasonably indicates that the parent is unable or unwilling to provide an adequate permanent home for the child, based upon expert opinion or based upon an established pattern of behavior.

A.A.K. contends that the trial court erred in finding “substantial non-compliance when she had completed several components of the case plan and was recently involved in psychological counseling.” A.A.K. argues that the record shows that she substantially complied with her case plan. In her brief, A.A.K. asserts:

the initial case worker [Ms. Nate Du-frene], in May 2006, indicated that [A.A.K.] had (1) attended the initial assessment at Lafayette Addictive Disorders Clinic; (2) maintained housing; (3) made herself available for home visits; (4) had been consistent in visiting with C.L.B.; (5) she was employed and referrals had been made to Good Will for Family_]¿Violence Intervention Project and Tyler Mental Health, although she had not attended their programs.

A.A.K. asserts that she complied with significant portions of the case plan. She argues that the law does not require compliance with, or completion of, all components of a case plan. Further, she contends that economic reasons were to blame for her not paying child support, not securing adequate housing, and not always securing transportation to attend her required therapy sessions. Therefore, A.A.K. contends that the trial court erred in finding that DSS proved by clear and convincing evidence that she failed to satisfy any of the requirements contained in La.Ch.Code art. 1015. Alternatively, A.A.K. contends that the trial court erred in terminating her parental rights “where there was a reasonable expectation for improvement in [her] condition.” Finally, A.A.K. asserts that her slow progress was due, in large part, to economic hardship.

Dr. Ed Bergeron (Dr. Bergeron) was called to testify by DSS. Dr. Bergeron, accepted by the trial court as an expert in the field of family psychology and medical and clinical psychology, testified that his initial evaluation of A.A.K. was on May 22, 2006. The purpose of his evaluation was to ascertain if A.A.K. was suffering from any type of psychological issue that would in any way interfere with her ability to function as a primary care-giver of a minor child. Based on his formal assessment of A.A.K.’s personality, Dr. Bergeron diagnosed A.A.K. with depressive disorder with agitated features. Dr. Bergeron testified that A.A.K. exhibited “some very serious psychological problems. In particular, the profile indicated what is often termed as deep-seated issues, meaning that they are very ingrained and resistant to change. They have become part of her personality to a large extent.” Based upon his findings, Dr. Bergeron did not recommend reunification between C.L.B. and her mother at that |atime; however, Dr. Bergeron opined that A.A.K. “was in need of mental health services which would include individual psychotherapy and ... medication” to “increase coping skills and try to resolve the underlying psychological problems and emotional scarring.”

Dr. Bergeron provided individual counseling to A.A.K. from January 3, 2007 until April 4, 2007. During this period of time, A.A.K. often failed to appear for her sessions with Dr. Bergeron. According to Dr. Bergeron, A.A.K. initially resisted his effort to prescribe antidepressant medication for her, but, on March 21, 2007, she agreed to take the medication. However, after the medication was prescribed, A.A.K. failed to appear for any other appointments with Dr. Bergeron. When asked whether he felt that A.A.K. had made any progress during her therapy sessions, Dr. Bergeron answered, “I do want to say first off she was very cooperative and did seem to try hard. But based on a couple of things, I do not see significant improvement.”

Ms. Nate Dufrene (Ms. Dufrene), the foster care case manager initially in charge of C.L.B.’s case, testified at the termination hearing as to her involvement during the first six months of C.L.B.’s case plan. According to Ms. Dufrene, the first case plan, which was directed towards reunification, was established on December 5, 2005. This plan asked A.A.K. and B.J.B. to: (1) maintain stable housing for six months; (2) provide child support; (3) maintain employment; (4) exercise visitation; (5) attend the Family Violence Intervention Program; and (6) submit to evaluations at the Lafayette Addictive Disorders Clinic.

According to Ms. Dufrene, during her six months of supervising this case, A.A.K. and B.J.B. moved twice. During announced visits, Ms. Dufrene found A.A.K.’s and B.J.B.’s home to be relatively clean. However, diming her one | ^unannounced visit, Mr. Dufrene noticed that there were multiple cats in the home, and dirty dishes, and she opined that “the house was dirty.” Ms. Dufrene testified that A.A.K. had obtained employment, but only once; that employment lasted approximately one month before she was fired. Also, A.A.K. did not provide child support for C.L.B. With regard to visitation, A.A.K. had visitation with C.L.B. every other week for an hour and a half. Though she regularly exercised this visitation, Ms. Dufrene testified that she observed A.A.K. “spend [sic] probably half to over half the time outside smoking cigarettes or complaining about the lack of time that she had to visit with her child.” According to Ms. Dufrene, A.A.K. was arrested on May 7, 2006 for criminal trespass, allegedly resulting from an altercation with one of her neighbors. A.AK. admitted to Ms. Dufrene that she had used ecstasy; however, a drug screen performed approximately two months after C.L.B.’s removal was negative for drug use.

When questioned about her observations of the visits between A.A.K. and C.L.B., Ms. Dufrene testified that she found that “C.L.B. seemed to be a little uncomfortable around A.A.K.” According to Ms. Du-frene, A.A.K. sometimes brought items for C.L.B. which were inappropriate, considering her young age. Ms. Dufrene established a second case plan on May 22, 2006; however, she left her employment with DSS shortly thereafter.

After Ms. Dufrene’s departure, DSS foster care case manager, Ms. Jael Dugas (Ms. Dugas), assumed responsibility for C.L.B.’s case. According to Ms. Dugas:

The basic components of the second case plan [dated May 22, 2006] were visitation to maintain a bond with the child and to also demonstrate any learned parenting skills that they had learned through the services they completed. Housing, to maintain stable housing, paid utilities, clean adequate shelter. Also we had addressed transportation at that time because transportation was an issue with [A.A.K.] and In [B.J.B.] getting to the services that they were referred to. Child support was also ordered in that case plan, and to address their psychological issues that had come from the psychological evaluations conducted by Dr. Bergeron.

Attending the Family Violence Intervention Program, maintaining employment, and attending parenting classes, which were part of the initial ease plan, were continued as part of the second case plan directed towards reunification.

The record reflects that both A.A.K. and B.J.B. successfully completed the four-week “Parenting Wisely!” program at The Extra Mile Family Resource Center from June 12, 2006 through July 3, 2006. However, according to Ms. Dugas, neither A.A.K. nor B.J.B. attended any of their scheduled visitations with C.L.B. during June and July of 2006. A.A.K. did not visit C.L.B. again until August 21, 2006. When she tried to contact A.A.K. and B.J.B. to inquire why they were missing their visits with C.L.B., Ms. Dugas reached a phone number that had been disconnected. A.A.K. eventually contacted Ms. Dugas and explained that she and B.J.B. had moved out of their previous home and were planning to move into a new home. A.A.K. demonstrated a persistent failure to maintain contact with DSS.

In the interim, between their move from their former home to yet another home, A.A.K. and B.J.B. were living with B.J.B.’s father, and A.A.K. alleged that they did not have transportation to exercise their visitation with C.L.B. According to Ms. Dugas, she offered A.A.K. and B.J.B. assistance by arranging transportation for them to be able to get to their visits. However, A.A.K.’s attendance was still not consistent. Ms. Dugas stated that the visits were changed to only once a month and that “beginning in January [2007], [A.A.K.] consistently visited with [C.L.B.] because the case plan was changed to adoption.” Ms. Dugas testified that “[Transportation was a big issue because [C.L.B.] has a lot of allergies. She takes allergy shots every |1!;week and she was actually hospitalized ... two times since she has been in foster care due to getting very sick from her allergies and asthma and dehydration.” When questioned if she knew how A.A.K. and B.J.B. were transported to the hearing in this matter, Ms. Dugas admitted, “I picked them up.”

When Ms. Dugas described the visits between A.A.K. and C.L.B., she found A.A.K. had a difficult time interacting with C.L.B. Like the previous case worker, Ms. Dugas also observed A.A.K. bringing items for C.L.B. which were inappropriate considering her young age, such as make-up and a ring.

According to Ms. Dugas, when she assumed responsibility for C.L.B.’s case in June of 2006, A.A.K. and B.J.B. were living with B.J.B.’s father. Though the exact date is unclear, at some point A.A.K. and B.J.B. did move into a home where they remained until approximately February of 2007. Ms. Dugas described the home as “a problem.” Ms. Dugas observed cat feces in the home, broken windows, and insulation hanging out of some of the walls. Ms. Dugas was advised by A.A.K. that the gas had never been connected during the seven months that they lived in the home, and, during two of those months, there was no electricity in the home.

The home in which A.A.K. and B.J.B. were residing on the date of the termination hearing was described by Ms. Du-gas as “appropriate.” When questioned under cross-examination whether A.A.K. had “moved into a smaller, more manageable home,” Ms. Dugas answered, “I can’t say it’s more manageable because I have not received any receipts to see how much the utilities cost, how much water cost[s], how much rent is. So I don’t know if it’s more manageable.” But Ms. Dugas did concede that the home did “look better” and was “more suitable.”

According to Ms. Dugas, A.A.K. had recently attended the Family Violence | ^Intervention Program; however, when asked whether attendance equated to completion of the program, Ms. Dugas responded, “[A.A.K.] ... completed going to the classes. Has she demonstrated that she can handle the stressors and not, you know, become angry and cooperate with co-workers, no, she has not.” Based on her observations during her supervision of this case, Ms. Dugas stated that termination of A.A.K.’s parental rights would be in the best interest of C.L.B.

According to A.A.K., the battery charges stemming from the alleged domestic disturbance between she and B.J.B. on November 6, 2005, were dropped “for lack of evidence. The people that testified, the neighbors that testified and said that we were using the child as a shield would not go to court and testify.” A.A.K. also testified that she “feel[s] I have done nothing but cooperate;” however, she admitted that she did not maintain a job, did not acquire a means of transportation, and never paid child support. A.A.K., acknowledged her initial refusal to take an antidepressant medication as recommended by Dr. Ber-geron and blamed her reluctance on the death of her newborn son. A.A.K. did admit to smoking in the presence of C.L.B. during their visits, but explained that she did not smoke “in [her] face.”

When questioned on cross-examination, A.A.K. acknowledged that the situation surrounding her visits with C.L.B., i.e., the foster mother’s presence, the social worker’s presence, and C.L.B.’s active nature, would make her nervous. When asked whether she felt that she was able to use good judgment at this point in her life, A.A.K. responded, “Yes, I do.” A.A.K., however, admitted to having had an affair in November of 2006 which created tension between her and B.J.B. A.A.K. also admitted that she attempted to bring her two-week-old puppy into the courthouse on the day of the termination hearing by hiding it in her shirt. Finally, A.A.K. disputed | i4the testimony of Ms. Walton and Ms. Dugas that cat feces were found in the home on more than one occasion.

The evidence unequivocally reflects that during the seventeen months since C.L.B. has been in the custody of DSS, A.A.K. failed to secure employment, failed to maintain adequate housing for a satisfactory length of time, failed to pay child support, and failed to obtain a means of transportation. Further, in its written reasons for judgment, the trial court stated:

Probably the most concern to this Court is [A.A.K]’s psychological limitations, which hinder her ability to care for her child. Dr. Ed Bergeron testified that [A.A.K.] had been referred to him for therapeutic counseling and medication management. He testified that she suffers from “deep-seated serious psychological problems, including depression and an inability to cope with stress.” He indicated that she had sporadic attendance at treatment and, while cooperative, she still had serious coping skill problems.

The record before this court clearly supports the trial court’s finding that A.A.K. demonstrates unstable and unhealthy behavior. Collectively, the testimony of Ms. Walton, Ms. Dufrene, and Ms. Dugas supports the trial court’s finding that the grounds enumerated in La.Ch.Code art. 1036(C) were duly established. Also, the expert opinion of Dr. Bergeron supports the trial court’s finding that the grounds enumerated in La.Ch.Code art. 1036(D)(1) and (3) were likewise duly established and that these finding were clearly reasonable.

A.A.K.’s ability to care for C.L.B. is greatly overshadowed by her inability to cope with stress. A.A.K.’s compliance with the case plan was, at best, sporadic. In fact, much of A.A.K.’s compliance began after DSS notified her that its case plan objective had changed from reunification to adoption. The trial court did not find that A.A.K.’s efforts were sufficient, nor do we. These findings were supported by the record and were reasonable in light of the record in its entirety. It is noteworthy that, |1fiat the time of trial, A.A.K. had had over seventeen months to comply with her reunification case plan and be a respectable mother to this child. C.L.B. has been in foster care since she was ten-months-old. The child will be three years old this January. The trial court’s findings were neither clearly wrong nor manifestly erroneous. We find that the trial court was correct in finding that the State proved by clear and convincing evidence sufficient grounds for termination under La.Ch.Code art. 1015(5) and that termination was in the best interest of the minor child.

DECREE

Based on our thorough review of the record in these proceedings, we find no manifest error by the trial court. We also find that the trial court was not clearly wrong in finding that the State satisfied its burden under La.Ch.Code art. 1015. We further conclude that it is in the best interest of the minor child, C.L.B., that the parental rights of A.A.K. be terminated. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

      . Pursuant to Uniform Rules-Courts of Appeal, Rules 5-1 and 5-2, the initials of the parties will be used to protect and maintain the privacy of the minor child involved in this proceeding.

      .Louisiana Children’s Code Article 606 provides:
      A. Allegations that a child is in need of care must assert one or more of the following grounds:
      (1) The child is the victim of abuse perpetrated, aided, or tolerated by the parent or caretaker, by a person who maintains an interpersonal dating or engagement relationship with the parent or caretaker, or by a person living in the same residence with the parent or caretaker as a spouse whether married or not, and his welfare is seriously endangered if he is left within the custody or control of that parent or caretaker.
      (2) The child is a victim of neglect.
      (3) The child is without necessary food, clothing, shelter, medical care, or supervision because of the disappearance or prolonged absence of his parent or when, for any other reason, the child is placed at substantial risk of imminent harm because of the continuing absence of the parent.
      (4) As a result of a criminal prosecution, the parent has been convicted of a crime against the child who is the subject of this proceeding, or against another child of the parent, and the parent is now unable to retain custody or control or the child's welfare is otherwise endangered if left within the parent's custody or control.
      (5) The conduct of the parent, either as principal or accessory, constitutes a crime against the child or against any other child of that parent.
      B. A child whose parent is unable to provide basic support, supervision, treatment, or services due to inadequate financial resources shall not, for that reason alone, be determined to be a child in need of care.

      . Permanency and review hearings were held on May 23, 2006 and October 24, 2006.

      . The grounds for termination of parental rights due to abandonment according to La. Ch.Code art. 1015(4) are:
      Abandonment of the child by placing him in the physical custody of a nonparent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
      (a) For a period of at least four months as of the time of the hearing, despite a diligent search, the whereabouts of the child's parent continue to be unknown.
      (b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child's care and support for any period of six consecutive months.
      (c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months.

      . The grounds for termination of parental rights according to La.Ch.Code art. 1015(5) are:
      Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child's age and his need for a safe, stable, and permanent home.

      . Louisiana Children's Code Article 1035(A) provides that "[t]he petitioner bears the burden of establishing each element of a ground for termination of parental rights by clear and convincing evidence."

      . Louisiana Children’s Code Article 1037(B) provides:
      When the court finds that the alleged grounds set out in any Paragraph of Article 1015 are proven by the evidentiary standards required by Article 1035 and that it is in the best interests of the child, it shall order the termination of the parental rights of the parent against whom the allegations are proven. The court shall enter written findings on both issues. The consideration of best interests of the child shall include consideration of the child's attachment to his current caretakers.


author: SULLIVAN, Judge.

text:
    Darryl BOUDREAUX v. SIMONEAUD GROCERY & MARKET, INC.
    No. 07-511.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 19, 2007.
    Morris M. Haik, Jr., New Iberia, LA, for Defendant/Appellee, Simoneaud Grocery & Market, Inc.
    D. Brennan Stockstill, New Iberia, LA, for Plaintiff/Appellant, Darryl Boudreaux.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, MICHAEL G. SULLIVAN, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   SULLIVAN, Judge.

hThe plaintiff, Darryl Boudreaux, appeals the dismissal of his suit, arguing that the trial court erred in finding it was abandoned under La.Code Civ.P. art. 561. For the following reasons, we reverse.

Factual and Procedural Background

The plaintiff filed the petition in this matter on December 10, 2002, alleging that he had incurred medical expenses as the result of an automobile accident. He asserted that he had medical benefits coverage through his wife’s employer, Simo-neaud Grocery & Market, Inc. (Simo-neaud), and that coverage for his medical expenses had been denied. The plaintiff sought payment of his past medical expenses and damages, including an award for past and future anguish/emotional distress, as well as penalties “pursuant to LaJEt.S. 22:657, et seq”

On September 7, 2006, Simoneaud filed a motion and order to dismiss, arguing that “no steps have been taken in the prosecution or defense of this matter for a period in excess of three (3) years, and therefore all claims in this matter as against all parties, including any incidental demands, should be dismissed as abandoned pursuant to La.C.C.P. Art. 561[.]” The trial court signed the order of dismissal. Thereafter, the plaintiff filed a motion seeking to set aside the order of dismissal, asserting that he had forwarded discovery requests in August 2003 and February 2006 that interrupted the three-year abandonment period. The trial court signed an order setting aside the dismissal and reinstated the suit.

Simoneaud responded to the reinstatement with a motion and order for reconsideration of the September 26, 2006 ruling. In opposition, the plaintiff again |2argued that the requests for discovery interrupted the abandonment period and, for the first time, asserted that Simoneaud had paid his medical expenses, thus waiving its right to assert that he had abandoned his suit. Following a hearing, the trial court dismissed the plaintiffs suit with prejudice.

The plaintiff appeals the dismissal, designating the following as error:

1.The tr[ia]l court manifestly erred and abused its discretion by not considering the extrinsic evidence of the defense’s tender (the check and accompanying correspondence for payment of medical bills) in ruling in favor of defense’s Motion for Abandonment.
2. The trial court manifestly erred and abused its discretion by not considering and ruling the unconditional tender constituted either a step in defense of this action or a waiver of the right to have the suit declared abandoned and therefore dismissed.
3. The trial court manifestly erred and abused its discretion by not considering and ruling that re-mailing previously propounded discovery which has been served on all parties effectively re-propounds the discovery and shall be deemed to be a step in the prosecution of an action.
4. The trial court manifestly erred and abused its discretion by signing a Judgment dismissing the suit with prejudice when the prescriptive period for a contractual obligation (LSA-R.S.22:658) is ten (10) years.

Discussion

Abandonment is controlled by La.Code Civ.P. art. 561, which provides, in pertinent part:

A. (1) An action is abandoned when the parties fail 'to take any step in its prosecution or defense in the trial court for a period of three years, unless it is a succession proceeding:
(2) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been taken for a period of three years in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment....
_k- • • •
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.

As explained in Clark v. State Farm Mutual Automobile Insurance Co., 00-3010 (La.5/15/01), 785 So.2d 779, a par ty’s right to assert abandonment may be waived. In Clark, the plaintiff, who was injured in a ear accident, settled his claim against the insurer of the driver of the other vehicle for policy limits. He filed suit on January 16, 1996 against his UM insurer, State Farm, to recover the remainder of his damages. The plaintiff withheld service of the petition but forwarded State Farm copies of the petition and his medical records. On October 14, 1996, State Farm forwarded a $3,000.00 check to the plaintiff along with correspondence stating that this was an unconditional tender. Neither party took other action until June 15, 1999, when the plaintiff filed a copy of the tendered check and correspondence into the record and requested that State Farm be served with a copy of the petition. On August 2, 1999, State Farm sought to have the suit dismissed as abandoned. The trial court found that the unconditional tender was a step in the defense of the case, which interrupted the abandonment period and caused it to run anew. On State Farm’s application for supervisory writs, the court of appeal reversed.

After granting certiorari, the supreme court analyzed whether a party’s actions must be on the record to constitute “steps” in the prosecution or defense of the suit. The supreme court explained:

The rule requiring that a party’s action be on the record is designed to protect a defendant. The rule is intended to ensure notice to the defendant of actions taken that interrupt abandonment. The purpose underlying the rule is not present when, as here, it is the defendant taking action and doing so in defense of plaintiff’s suit to avoid |4penalties and attorney’s fees. Based on this rationale, we concluded earlier in this opinion that the remark in Melancon [v. Continental Casualty Co., 307 So.2d 308 (La.1975)] precluding the con sideration of conduct not on the record in determining if defendant’s conduct constituted a waiver was mistaken. Repeating, we conclude that to the extent a defendant’s conduct would amount to a waiver as an acknowledgment if taken after the abandonment period has elapsed, such pre-abandonment acknowledgment can also be established by evidence outside the record to be a waiver, which serves to recommence the abandonment period running anew.
If the defendant’s conduct in this case was simply informal settlement negotiations, as defendant contends and the court of appeal concluded, then the waiver exception would not apply, and the general rule requiring formal action would apply. This case, however, presents an entirely different factual scenario: an unconditional tender.
An unconditional tender is made to a plaintiff “not in settlement of the case, but to show [the insurer’s] good faith in the matter and to comply with the duties imposed upon them under their contract of insurance with the insured.” McDill v. Utica Mutual Insurance Co., 475 So.2d 1085, 1091-92 (La.1985). A tender made to satisfy the requirements of La. Rev.Stat. 22:658(A)(1) must be unconditional, i.e., with “no strings attached,” and thus, by definition, cannot be a settlement offer. The court of appeal’s characterization of the tender as part of informal negotiations was thus erroneous.

Clark, 785 So.2d at 790-91 (footnote omitted). Thus, the supreme court determined that State Farm’s pre-abandonment unconditional tender, although made outside of the record, was an acknowledgment and thus within the waiver exception, which resulted in interruption of the abandonment and a recommencement of the abandonment period from the date of the tender. Id. In so ruling, the supreme court noted that the result reached was “consistent with the policy considerations underlying abandonment that require any doubt be construed in favor of maintaining a plaintiffs action.” Id. at 793.

Relying on Clark, the plaintiff asserts that Simoneaud acknowledged liability by issuing two checks to his medical providers in September 2003, thereby waiving its right to assert abandonment.

|fiThe checks, which were entered into evidence by the plaintiff at the hearing on Simoneaud’s motion for reconsideration, were made payable directly to two of the plaintiffs health care providers. The checks were accompanied by correspondence from Simoneaud’s counsel in this matter, along with detailed billing statements from the health care providers. Both of the checks were written for the full amounts due the health care providers, and both contained notations that they were being paid for services rendered to Darryl Boudreaux, Sr.

Clearly, Simoneaud was seeking to avoid liability to the plaintiff for penalties under La.R.S. 22:657 when it paid the full amounts due his health care providers for sendees rendered to him as a result of the subject automobile accident. Moreover, the payments were sent directly to the health care providers rather than to the plaintiff or his attorney, and no argument has been made that the payments would serve to satisfy his claims against Simo-neaud. Indeed, the plaintiff was not given the opportunity to accept or reject the payments made on his behalf. We conclude that the payments by Simoneaud were made unconditionally and thus constituted tacit acknowledgments of the plaintiffs claim sufficient to waive its right to assert that he had abandoned his action. (Cf. Mallett v. McNeal, 05-2289, 05-2322 (La.10/17/06), 939 So.2d 1254, where the supreme court held that a liability insurer’s issuance of two checks in payment of insured’s property damage before suit was filed constituted an acknowledgment sufficient to interrupt prescription thereby making plaintiffs suit timely even though it was filed more than one year after the date of the accident).

Having so found, we need not determine whether the trial court erred in its finding that the re-mailing of previously propounded discovery by counsel for | (¡plaintiff amounted to a step in the prosecution of this action. Moreover, because we have determined that the trial court erred in dismissing the plaintiffs suit, we likewise need not determine whether the dismissal should have been with or without prejudice.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed, and the plaintiffs suit is reinstated. All costs of this appeal are assessed against the defendant, Simoneaud Grocery & Market, Inc.

REVERSED.

      . It appears that the initial order of dismissal, as well as the subsequent order setting aside that dismissal, was signed by a judge other than the one to which the case was allotted upon filing.

      . While we recognize that Mallett dealt with La.R.S. 22:658 rather than La.R.S. 22:657, which is at issue herein, we nonetheless find the supreme court’s analysis pertinent to the issue before us.