author: WALTER J. ROTHSCHILD, Judge.

text:
    Christie and August M. BERTONIERE v. JEFFERSON PARISH HOSPITAL SERVICE DISTRICT NO. 2, d/b/a East Jefferson General Hospital, Stewart A. Nutting, M.D., James D. Conway, M.D., S. Bleich, M.D., and ABC Insurance Company.
    No. 07-CA-301.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2007.

      Kevin D. Shearman, Attorney at law, Metairie, Louisiana, for Plaintiff/Appellant.
    J. Marc Vezina, Kelli M. Khalaf, Attorneys at Law, Gretna, Louisiana, for Defen-dani/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

|aIn this medical malpractice action, plaintiffs appeal from a judgment granting in part an exception of prescription brought by the Louisiana Patient’s Compensation Fund. For the reasons stated herein, we affirm the trial court’s judgment.

Facts and Procedural History

On January 9, 1997, Christie and August M. Bertoniere filed a petition for damages against Jefferson Parish Hospital Service District No. 2, d/b/a East Jefferson General Hospital, Dr. Stewart A. Nutting, Dr. James D. Conway, Dr. S. Bleich and an unnamed insurance company alleging negligence on the part of the named physicians. In this petition, plaintiffs allege that on December 31, 1995, August Berto-niere presented to the East |3Jefferson emergency room complaining of chest pain. He was examined by Dr. Michael Federline, and after ordering an EKG, Dr. Federline discharged Mr. Bertoniere with a diagnosis of left shoulder pain.

The following day, Mr. Bertoniere appeared again at the emergency room complaining of recurrent chest pain. Dr. Federline ordered another EKG. Mr. Ber-toniere was diagnosed at this time as having sustained an “acute inferior wall myocardial infarction” and he was admitted to the hospital and seen by his internist, Dr. James Conway. The petition further alleges that Mr. Bertoniere underwent bypass surgery which was performed by Dr. Stewart Nutting on January 5, 1996. He was referred to Dr. Bleich for consult and follow-up. According to the petition, Mr. Bertoniere was discharged by Dr. Conway “to home health care and family” on January 8, 1996.

Mr. Bertoniere was brought back to the emergency room on January 9, 1996 after his wife found him “slightly incoherent with garbled speech and a blank expression.” Mrs. Bertoniere was told by Dr. Nutting that her husband had suffered a “cerebral vascular accident due to an em-bolus” and he remained in the hospital until January 19,1996. Since that date, he has remained in a semi-vegetative state.

In their original petition, plaintiffs allege Mr. Bertoniere was discharged to home health care with incorrect medication orders. They allege that Drs. Nutting, Conway and Bleich breached the standard of care in failing to give adequate orders for proper maintenance of hemostasis and/or anticoagulation .therapy prior to discharge. Plaintiffs also allege that East Jefferson was negligent in failing to properly record and communicate the physicians’ orders prior to discharge of Mr. Bertoniere.

^Defendants responded to this petition with exceptions of prematurity on the basis that plaintiffs had not brought their claim to a medical review panel prior to the filing of this suit. The trial court granted the exceptions, and dismissed plaintiffs’ suit without prejudice. Thereafter, plaintiffs filed a request for review and complaint with the Louisiana Patient’s Compensation Fund Oversight Board and an opinion of the panel was issued on September 9,1998.

Plaintiffs subsequently amended their petition to include as defendant the home health nurse and the agency which cared for Mr. Bertoniere after his hospital discharge. By a second amending and supplemental petition filed on November 30, 1998, plaintiffs included all defendants named in the original petition, and further named as defendants Dr. Michael Feder-line and the home health nurse and agency which cared for Mr. Bertoniere after his hospital discharge. In this petition, plaintiffs alleged that the EKG ordered by Dr. Federline in the emergency room on December 31, 1995 indicated a myocardial infarction in progress and that Mr. Berto-niere should have been immediately admitted to the hospital and treated.

On January 24, 2001, the home health care agency was dismissed by summary judgment without opposition of plaintiffs.

On joint motion of dismissal filed on September 3, 2003 and signed by the trial comí on September 25, 2003, plaintiffs’ claims against Dr. Stewart Nutting and Dr. Michael Federline were dismissed with prejudice based on settlements obtained, reserving their status as nominal parties for the purposes of plaintiffs seeking additional compensation from the Louisiana Patient’s Compensation Fund.

|fiIn February of 2004, the plaintiffs also filed a motion to dismiss East Jefferson General Hospital based on a settlement obtained, and this party was dismissed with prejudice reserving plaintiffs’ rights to proceed against the remaining defendants and the Louisiana Patient’s Compensation Fund.

Further, by summary judgment signed by the trial court on February 11, 2004, plaintiffs’ claims against Dr. Stanley Bleich and Dr. James Conway were dismissed.

Plaintiffs subsequently filed into these proceedings a petition demanding payment from the Louisiana Patient’s Compensation Fund (“PCF”) pursuant to La. R.S. 40:1299.44(C). The Patient’s Compensation Fund responded with an exception of prescription arguing that plaintiffs’ medical malpractice claims were not timely filed.

By judgment rendered on June 13, 2006, the trial court maintained in part and overruled in part the exception of prescription as follows:

A) As to defendant Dr. Stewart A. Nutting, the exception of prescription is OVERRULED at exceptor’s costs; and
B) As to defendant Dr. Michael Feder-line, the exception is MAINTAINED dismissing all petitioners’ claims against Dr. Federline with prejudice at petitioners’ costs.

In its reasons for judgment, the trial court found that the medical malpractice claims were filed by plaintiffs in this case on January 8, 1997, based on the letter sent by the PCF to plaintiffs on January 22, 1997 acknowledging receipt of their claims. The trial court further found that prescription began as to Dr. Nutting when plaintiff became aware of the damage incurred, i.e., his stroke on January 9, 1997. Thus, the trial court concluded the claim against Dr. Nutting was timely filed. As to Dr. Federline, the trial court found that the malpractice occurred when the EKG | fiwas allegedly misread on December 31, 1995 and that plaintiffs had knowledge of this error on January 1, 1996 when Mr. Bertoiniere returned to the hospital and was diagnosed with a heart attack. The court concluded that the malpractice against Dr. Federline was prescribed, as it was filed on January 8,1997, one year plus seven days from the discovery of Dr. Fed-erline’s action in failing to diagnose a heart attack.

Plaintiffs now appeal from this ruling arguing that prescription runs not from the date of the wrongful act, but from the damage incurred. Plaintiffs contend the damage incurred by the patient in this case was the stroke he suffered on January 9, 1996, and his malpractice claim filed on January 8, 1997 is therefore timely.

Law and Analysis

The prescriptive period for medical malpractice actions is contained in La. R.S. 9:5628(A) and provides as follows:

No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing home duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1299.41(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.

A reading of La. R.S. 9:5628 shows that the statute sets forth two prescriptive limits within which to bring a medical malpractice action, namely one year from the date of the alleged act or one year from the date of discovery with a three year limitation from the date of the alleged act, 17omission or neglect. Campo v. Correa, 01-2707 (La.6/21/02), 828 So.2d 502, 509; Hebert v. Doctors Memorial Hosp., 486 So.2d 717 (La.1986).

Ordinarily, the movant bears the burden of proof on trial of the peremptory exception, including the objection of prescription. SS v. State, Dept, of Social Services, 02-831 (La.12/4/02), 831 So.2d 926, 931. It is only where a petition reveals on its face that prescription has run that the burden shifts to the plaintiff to show that his action has not prescribed. SS v. State, 831 So.2d at 931. The burden remains with the movant where the plaintiffs pleadings make “a prima facie showing” that the suit was filed within the delays set forth in La. R.S. 9:5628. Campo v. Correa, 01-2707 (La.6/21/02), 828 So.2d 502, 509. A petition should not be found prescribed on its face if it is brought within one year of the date of discovery and facts alleged with particularity in the petition show that the patient was unaware of malpractice prior to the alleged date of discovery, and the delay in filing suit was not due to -willful, negligent, or unreasonable action of the patient. Id.

Prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort. A prescriptive period will begin to run even if the injured party does not have actual knowledge of facts that would entitle him to bring a suit as long as there is constructive knowledge of same. Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry. Such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead. Such information or knowledge as ought to reasonably put the alleged victim on inquiry is sufficient to start running of prescription. | ^Nevertheless, a plaintiffs mere apprehension that something may be wrong is insufficient to commence the running of prescription unless the plaintiff knew or should have known through the exercise of reasonable diligence that his problem may have been caused by acts of malpractice. Even if a malpractice victim is aware that an undesirable condition has developed after the medical treatment, prescription will not run as long as it was reasonable for the plaintiff not to recognize that the condition might be treatment related. The ultimate issue is the reasonableness of the patient’s action or inaction, in light of his education, intelligence, the severity of the symptoms, and the nature of the defendant’s conduct. Campo v. Correa, 01-2707 (La.6/21/02), 828 So.2d 502, 510-11 (citations omitted.)

In the present case, plaintiffs name Dr. Federline as a defendant in their second supplemental and amending petition and allege as follows:

On or about December 31, 1995, August M. Bertoniere, a 52 year old male, appeared about 7:00 a.m., Sunday, at the Emergency Room of East Jefferson General Hospital (“East Jeff”) with complaints of chest pains. He was examined by Michael Federline, M.D., who ordered an EKG, which was interpreted as normal, and discharged petitioner with a diagnosis of “Musculoskeletal pain, left shoulder pain”. In truth and in fact, the EKG revealed a coronary blockage indicating a myocardial infarction in progress and that Mr. Bertoniere should have been immediately admitted to the hospital and treated.

In plaintiffs’ original petition, plaintiffs allege that Mr. Bertoniere returned to the emergency room with complaints of recurrent chest pains on January 1, 1996, and that an EKG performed on this date was abnormal and indicated he had suffered a myocardial infarction or a heart attack. He further alleges in this petition that Mr. Bertoniere suffered a stroke on |9January 9, 1996 based on a failure to give adequate orders upon his discharge.

Plaintiffs’ petition does not specifically allege when the negligence of Dr. Feder-line in interpreting the EKG result was discovered. However, the facts as alleged in the petition indicate that plaintiffs were made aware on January 1, 1996 that Mr. Bertoniere had suffered a heart attack. This information was sufficient to put plaintiffs on notice that Dr. Federline’s interpretation of the EKG performed on the previous date was inaccurate, or at least excite their attention and put them on guard and call for inquiry. Thus, the allegations of plaintiffs’ petition indicates that plaintiffs knew or should have known of Dr. Federline’s alleged negligence on January 1, 1996 when they were informed he sustained a heart attack.

Plaintiffs’ medical malpractice claim was filed on January 8, 1997 and the original petition for damages was filed on January 9, 1997. As plaintiffs’ petition shows that more than one year elapsed from plaintiffs’ knowledge of Dr. Federline’s negligence, the petition indicates the claims have prescribed on its face, and plaintiff has the burden of proof to show that the action has not prescribed. Our review of the record fails to indicate that plaintiffs have met this burden.

Plaintiffs argued in the trial court and on appeal that prescription begins to run from the date damages are incurred, rather from the date of the wrongful act. They contend that damages were sustained in this case is the date Mr. Bertoni-ere suffered a stroke, January 9, 1996. Accordingly, they contend that the claim for damages was filed within the one year prescriptive period proscribed by La. R.S. 9:5628 and is therefore timely.

| t nHowever, although we do not dispute that prescription begins to runs from the date damages are sustained as provided in La. C.C. art. 3492, we fail to find any factual support in the record for plaintiffs’ contention that the stroke sustained by Mr. Bertoniere constitutes the damages sustained by Dr. Federline’s negligence. Rather, the record indicates that the alleged wrongful act of Dr. Federline occurred in the emergency room on December 31, 1995. The damage incurred as a result of this alleged wrongful act was the heart attack which was diagnosed and communicated to plaintiffs on January 1, 1996. The stroke which was suffered by Mr. Bertoinere on January 9,1996 was not incurred as a result of any wrongful act on the part of Dr. Federline. Nothing in the record suggests that Dr. Federline’s actions or inactions on December 31, 1995 in any way contributed to the stroke which Mr. Bertoniere eventually sustained.

Further, we fail to find that prescription was suspended by the theory of continuing-torts. The allegations against Dr. Federline are independent, separate and distinct from the allegations asserted against the other named physicians. The alleged misinterpretation of the EKG is not inextricably tied to Dr. Nutting’s subsequent cardiology treatment. Thus, these are two separate allegations of malpractice which result in two separate prescription dates. Dr. Federline’s negligence constituted a “single breach of duty” and is therefore not subject to the theory of continuing-tort. See, Medical Review Panel for Claim of Moses, In re, 00-2643 (La.5/25/01), 788 So.2d 1173,1187.

Further, when Mr. Bertoniere was diagnosed with a heart attack on January 1, 1996, plaintiffs were put on notice or at least were called to inquiry as to whether Dr. Federline may have misinterpreted the results of the |nEKG which had been performed the previous day. We agree with the determination of the trial court that a reasonable person would have been put on immediate inquiry on January 1, 1996 when Mr. Bertoniere returned to the emergency room and was diagnosed with a heart attack.

Accordingly, for the reasons assigned herein, we find that the trial court correctly determined that the prescriptive period for the alleged negligence of Dr. Michael Federline began on January 1, 1996 when plaintiffs knew or should have known of the alleged wrongful acts. Pursuant to the one year prescriptive period for medical malpractice actions contained in La. R.S. 9:5628, we find that plaintiffs’ claims asserted on January 8, 1997 have prescribed as to Dr. Federline. The judgment of the trial court is therefore affirmed at plaintiffs’ costs.

AFFIRMED.

      . The record also indicates that plaintiffs notified the Louisiana Patient’s Compensation Fund of its claim against these physicians by letter dated January 9, 1997, although the acknowledgement of this letter also shows that the claim was filed on January 9, 1997.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    Dr. Stella GWANDIKU, et al. v. STATE FARM MUTUAL AUTO INSURANCE COMPANY, et al.
    No. 07-580.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.
    Opinion Granting Rehearing Jan. 9, 2008.

      Thomas D. Davenport, Jr., The Davenport Firm, APLC, Alexandria, Louisiana, for Plaintiff/Appellant, Dr. Stella Gwandi-ku.
    Randall B. Keiser, D. Heath Trahan, Reiser Law Firm, P.L.C., Alexandria, Louisiana, for Defendants/Appellees, Pat Adams P.T. & Associates, Inc. and Pat Adams.
    Court composed of MARC T. AMY, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

pin this suit for defamation, Plaintiff, Dr. Stella Gwandiku (Dr. Gwandiku), appeals the trial court’s grant of a special motion to strike in favor of Defendants, Pat Adams PT & Associates, Inc. and Pat Adams (collectively Adams). Adams answered the appeal seeking additional attorney fees and costs. For the following reasons, we affirm as amended.

FACTS

Dr. Gwandiku owns and operates Rapha Medical & Therapeutic Clinic, L.L.C. As a result of being involved in an automobile accident and sustaining personal injury, Shondrika Ballard (Ballard) sought and obtained medical treatment, including physical therapy, at Dr. Gwandiku’s clinic. Ballard’s automobile accident spawned a personal injury lawsuit against State Farm Mutual Automobile Insurance Company (State Farm) in the matter entitled “Shondrika Ballard v. State Farm Mutual Automobile Insurance Co.,” civil docket number 101,418, in the Alexandria City Court. In the course of the trial of Ballard’s case, State Farm retained Pat Adams, a physical therapy expert, to testify as to the propriety of the charges for the physical therapy services provided by Dr. Gwandi-ku. Adams testified at trial that Dr. Gwandiku was “double billing” for physical therapy services. Adams further testified that single physical therapy sessions were being billed out twice, one for each of two accidents Ballard had been involved in; consequently, charges for the same physical therapy services were being billed and paid for twice.

On July 31, 2006, Dr. Gwandiku and Rapha Medical & Therapeutic Clinic, L.L.C., instituted the present defamation action against Pat Adams PT & Associates, | Jnc., Pat Adams individually, and State Farm. In response thereto, on September 5, 2006, Adams filed a special motion to strike pursuant to La.Code Civ.P. art. 971. Following a hearing on October 9, 2006, the trial court took the matter under advisement and later issued written reasons granting the special motion to strike on December 21, 2006. A judgment in accordance therewith was signed by the trial court on the same day. It is from this judgment that Dr. Gwandiku appeals.

On December 28, 2006, Adams filed a limited motion for new trial on the issue of attorney fees and costs which had not been awarded by the trial court. A hearing on the limited motion for new trial was held on January 29, 2007. Thereafter, on March 20, 2007, the trial court issued a subsequent judgment awarding Adams $3,000.00 in attorney fees and $434.95 in costs. Adams has answered the appeal relative to this subsequent judgment.

ISSUES

In her brief, Dr. Gwandiku presents the following issues for our review:

1. [w]hether the [t]rial [c]ourt erred by granting a [special motion to strike] because it failed to adhere to the express provisions of [La.Code Civ. P. art. 971] before it concluded [that Pat Adams] was immune from suit;
2. [w]hether the [t]rial [c]ourt committed legal error by failing to determine if the defamatory per se statements of [Pat Adams] were pertinent and material to the issues of which [she] was testifying;
3. [w]hether witness immunity gave [Pat Adams] a blank check to make defamatory per se statements against [Dr. Gwandiku], who is a non-litigant; and
4. [w]hether the policies supporting the purpose of witness immunity are being advanced by allowing [Pat Adams] to defame per se [Dr. Gwan-diku].

lain her answer to this appeal, Adams asserts that the trial court erred in failing to grant all costs as prayed for in her original special motion to strike, as supplemented by the affidavit in support thereof, filed in connection with the limited motion for new trial.

LAW AND DISCUSSION

“Because the granting of a special Motion to Strike Pursuant to La.Code Civ.P. art. 971 involves issues of law, we will conduct a de novo review of the trial court’s application of the law.” Aymond v. Dupree, 05-1248, p. 5 (La.App. 3 Cir. 4/12/06), 928 So.2d 721, 726, writ denied, 06-1729 (La.10/6/06), 938 So.2d 85; Thomas v. City of Monroe Louisiana, 36,526 (La.App. 2 Cir. 12/18/02), 833 So.2d 1282.

Dr. Gwandiku contends that the trial court erred in granting Adams’s special motion to strike pursuant to La.Code Civ.P. art. 971 and that said article is not applicable to the claims of Dr. Gwandiku. Dr. Gwandiku devotes much attention to her assertion that the statements made by Adams are defamatory per se. She contends that “[a]s the defamatory per se words do not enjoy constitutional protection, [Adams] cannot approach her initial burden under [La.Code Civ.P. art. 971].” We disagree. Louisiana Code of Civil Procedure Article 971 uses the language “any” and does not so limit the protections provided by the article. Thomas, 833 So.2d 1282. Adams asserts that her special motion to strike was properly granted pursuant to La.Code Civ.P. art. 971, as it involves both protected free speech and a public issue. We agree.

Louisiana Code of Civil Procedure Article 971, provides, in pertinent part:

A. (1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the |4court determines that the plaintiff has established a probability of success on the claim.
(2) In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
(3) If the court determines that the plaintiff has established a probability of success on the claim, that determination shall be admissible in evidence at any later stage of the proceeding.
B. In any action subject to Paragraph A of this Article, a prevailing party on a special motion to strike shall be awarded reasonable attorney fees and costs.
F. As used in this Article, the following terms shall have the meanings ascribed to them below, unless the context clearly indicates otherwise:
(1) “Act in furtherance of a person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue” includes but is not limited to:
(a) Any written or oral statement or •writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.
(b) Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official body authorized by law.
(c) Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.
(d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
(2) “Petition” includes either a petition or a reconventional demand.
(3) “Plaintiff’ includes either a plaintiff or petitioner in a principal action or a plaintiff or petitioner in reconvention.
(4) “Defendant” includes either a defendant or respondent in a 1 ¿principal action or a defendant or respondent in reconvention.

This court, in Aymond, 928 So.2d at 727, explained the purpose of La.Code Civ.P. art. 971 as follows:

Hence, Article 971 was enacted by the legislature as a procedural device to be used in the early stages of litigation to screen out meritless claims brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances. Lee v. Pennington, 02-381 (La.App. 4 Cir. 10/16/02), 830 So.2d 1037, writ denied, 02-2790 (La.1/24/03), 836 So.2d 52. Accordingly, La.Code Civ.P. art. 971 provides that a cause of action against a person arising from any act in furtherance of the person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim.

Additionally, we discussed the shifting burdens of proof in Aymond, stating as follows:

[T]he moving party must first satisfy the burden of proving that the cause of action arises from an act in the exercise of his right of free speech regarding a public issue. If the mover satisfies this initial burden of proof, then the burden shifts to the plaintiff to show a probability of success on his claim.

Id. (citing Thomas, 833 So.2d 1282).

Thus, in the instant matter, Adams had the initial burden of proving that her lawsuit arose from an act in the exercise of her right of free speech regarding a public issue. Adams’s testimony in the Alexandria City Court is clearly within the ambit of this requirement, as the Louisiana legislature has expressly defined in La.Code Civ.P. art. 971 that an “oral statement ... made before a ... judicial proceeding” is an “[a]ct in furtherance of a person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue.” La.Code Civ.P. art. 971(F)(1)(a). Thus, the requisite pri-ma facie showing that the present defamation matter arose from an act in furtherance of Adams’s right of free speech and in relation |nto a public issue was satisfied. See also Hunt v. Town of New Llano, OS-1434 (La.App. 3 Cir. 5/3/06), 930 So.3d 251, unit denied, 06-1852 (La.10/27/06), 939 So.2d 1283. This initial burden of proof having been met, the burden then shifted to Dr. Gwandiku.

In order to defeat Adams’s motion, Dr. Gwandiku was then required to demonstrate a probability of success on her claim. “This showing is based on the elements of the alleged tort claim.” Id. at 255 (citing Lee, 830 So.2d 1037). “Accordingly, to maintain an action for defamation, [she] has the burden of proving five elements: (1) defamatory words; (2) unprivileged publication; (3) falsity; (4) malice (actual or implied); and (5) injury.” Ay-mond, 928 So.2d at 728 (citing Gugliuzza v. K.C.M.C., Inc., 606 So.2d 790 (La.1992)).

The only evidence offered by Dr. Gwandiku in opposition to the special motion to strike was her own affidavit and the affidavit of Thomas Wells, an employee of Rapha Medical & Therapeutic Clinic, L.L.C. These two affidavits generally address the treatment provided to Ballard, the billing practices of the clinic, and the fact that the billings done in connection therewith were in keeping with proper Medicare billing protocol. We find that these affidavits fail to demonstrate a probability of success on Dr. Gwandiku’s defamation claim. Although said affidavits raise questions as to the element of falsity of the statements made by Adams, they fail to address the four remaining elements required for a defamation claim.

Assuming that the statements made by Adams during the trial in Alexandria City Court were defamatory, Dr. Gwandiku failed to show that the statements were not privileged. Moreover, fatally absent is any evidence whatsoever on the issues of 17malice and damages. Therefore, based on our review of the evidence offered by Dr. Gwandiku in opposition to the motion to strike, we find that three of the five criteria for a defamation claim are missing. Additionally, even assuming that the statements made by Adams were defamatory, because these statements were made by Adams as a witness in a judicial proceeding, she is entitled to claim an “absolute privilege,” and that privilege protects her from a civil suit regardless of malice or falsity. Marrogi v. Howard, 01-1106 (La.1/15/02), 805 So.2d 1118. Accordingly, we find that Dr. Gwandiku did not meet her burden of establishing a probability of success on her claim against Adams.

ANSWER TO APPEAL

In her answer to appeal, Adams contends that the trial court’s failure to grant all fees and costs as prayed for constituted legal error, as Dr. Gwandiku submitted no evidence or testimony to controvert the amounts sought. Additionally, Adams seeks additional attorney fees and costs for work required to defend and prosecute the present appeal.

The language of La.Code Civ.P. art. 971(B) is mandatory in nature. The article provides that “[i]n any action subject to Paragraph A of this Article, a prevailing party on a special motion to strike shall be awarded reasonable attorney fees and costs.”

In the case at bar, Adams submitted the affidavit of attorney Randall B. Reiser with an attached client ledger showing that the actual amount of attorney fees and costs incurred totaled $4,001.00 in attorney fees and $739.16 in costs. The trial court, without explanation for the reduction therefor, awarded only $3,000.00 in attorney fees and $434.95 in costs. Given the lack of any evidence in opposition thereto, and ^considering the article’s mandatory language “shall,” we find these awards to be manifestly erroneous. Accordingly, we amend the judgment of the trial court to increase the attorney fee award in favor of Adams to $4,001.00, and the cost award to $739.16.

DECREE

For the foregoing reasons, the judgment of the trial court granting the special motion to strike pursuant to La.Code Civ.P. art. 971 in favor of Pat Adams PT & Associates, Inc. and Pat Adams is affirmed. Additionally, we amend the judgment in favor of Pat Adams PT & Associates, Inc. and Pat Adams against Dr. Gwandiku to increase said award to $4,001.00 in attorney fees and $739.16 in costs.

Costs of this appeal are assessed against Dr. Gwandiku.

AFFIRMED AS AMENDED.

ON REHEARING

I,We grant the Application for Limited Rehearing filed on behalf of Defendants, Pat Adams PT & Associates, Inc. and Pat Adams (collectively Adams), for the sole and limited purpose of addressing the issue of attorney fees on appeal, which was not addressed in our original opinion.

Considering the mandatory attorney fee language in La.Code Civ.P. art. 971(B), the fact that Adams was successful in obtaining relief on appeal, the fact that Plaintiffs, Dr. Stella Gwandiku, et al., were unsuccessful in obtaining relief on appeal, and the fact that the appeal necessitated additional work by counsel for Adams, we award Adams an additional $2,000.00 in attorney fees for work done on appeal. Vickers v. Interstate Dodge, Inc., 04-109 (La.App. 3 Cir. 9/29/04), 882 So.2d 1236. We hereby amend our original opinion to reflect an additional award of $2,000.00 in attorney fees to Adams for work done on appeal.

AFFIRMED AS AMENDED.

      . Rapha Medical & Therapeutic Clinic, L.L.C., although a plaintiff, is not involved in the present appeal.

      . State Farm, who was named as a defendant, is not involved in the present appeal.

      . Dr. Gwandiku asserts that these statements were in fact defamatory per se.


author: ROLAND L. BELSOME, Judge.

text:
    Andrea BONNETTE, Individually and as Natural Tutor of Her Minor Child, Hannah Grace Bonnette v. STATE of Louisiana, Louisiana State University Health Sciences Center—New Orleans, Medical Center of Louisiana at New Orleans a/k/a MCLNO and Board of Supervisors of Louisiana State University and Agricultural and Mechanical College.
    No. 2006-CA-1339.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 2007.

      Kara M. Hadican, Michael J. Ecuyer, Gainsburgh, Benjamin, David, Meunier & Warshauer, LLC, New Orleans, LA, for Plaintiff/Appellant.
    Charles C. Foti, Jr., Attorney General, J. Marc Vezina, Special Assistant Attorney General, Kelli M. Khalaf, Special Assistant Attorney General, Andrea C. Caplan, Special Assistant Attorney General, Vezina and Gattuso, L.L.C., Gretna, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

bOn April 3, 2004, Matthew Bonnette was involved in an automobile collision on the Crescent City Connection (CCC) Bridge in New Orleans; he was arrested in connection with the incident. The CCC police transported him to the Medical Center of Louisiana New Orleans’ (MCLNO) emergency room, where he was diagnosed with muscle strains to his back and suicidal ideation.

The emergency room physicians ordered a psychiatric evaluation. During the evaluation Mr. Bonnette informed the doctors that for approximately a month he had experienced a decrease in sleep and appetite along with drastic weight loss. He discussed hanging himself and disclosed that on two prior occasions he had attempted suicide.

The doctors diagnosed him as suffering from a major depressive episode. A Suicide Risk Assessment and Treatment plan assessed Mr. Bonnette with numerous specific risk factors including but not limited to psychic distress, global insomnia and past suicide attempts ... constituting an emergency medical condition. An antidepressant was prescribed and he was released to the New Orleans Police Department (NOPD) who was notified to place Mr. Bonnette on suicide watch | ¿while in their custody and to have him reevaluated on release. Mr. Bonnette was transferred to the custody of the Orleans Parish Criminal Sheriffs office where he was placed in a cell at the House of Detention. A leather restraint strap was left in the cell and Mr. Bonnette committed suicide by hanging.

Mr. Bonnette’s family filed suit, claiming that MCLNO committed malpractice and violated 42 U.S.C.A. § 1395dd, the Emergency Medical Treatment and Active Labor Act (EMTALA), by “dumping” Mr. Bonnette without proper treatment. The trial court granted defendant’s exception of prematurity as to the malpractice claim and also granted a peremptory exception of no cause of action regarding plaintiffs’ claim under EMTALA, dismissing that claim with prejudice. The plaintiffs appeal the dismissal of the EMTALA claim.

On appeal, this Court conducts a de novo review of the trial court’s ruling sustaining an exception of no cause of action. City of New Orleans v. Board of Commissioners of Orleans Levee Dist., 93-0690, pp. 47-49 (La.7/5/1994), 640 So.2d 237, 253. When determining whether to sustain an exception of no cause of action, the trial court is confined to the four corners of the petition. See Doe v. Jo Ellen Smith Medical Foundation d/b/a Jo Ellen Smith Medical Center and Jo Ellen Smith Psychiatric Center, 2005-0653 (La.App. 4 Cir. 7/13/05), 913 So.2d 140; Z.U. Azhar Clinic v. Rafiq, 2005-0167 (La.App. 4 Cir. 7/6/05), 913 So.2d 135. The facts pled in the petition must be considered true for purposes of deciding whether the law provides a remedy for the plaintiff if the facts are proven at trial. Bibbins v. City of New Orleans, 2002-1510 (La.App. 4 Cir. 5/21/03), 848 So.2d |3686. Furthermore, no evidence may be introduced at any time to support or controvert the exception of no cause of action. La.Code Civ. Proc. art. 931.

Plaintiffs argue that the physicians at MCLNO violated subsection (b) of the EMTALA statute by transferring the patient to the NOPD without properly stabilizing him. Congress enacted EMTALA as a way to prevent private hospitals from “dumping” patients by refusing to provide services to uninsured or indigent persons who presented themselves for emergency treatment. Spradlin v. Acadia — St. Landry Medical Foundation, 98-1977 (La.2/29/00), 758 So.2d 116, 121. 42 U.S.C.A. § 1395dd reads in pertinent part:

(b) Necessary stabilizing treatment for emergency medical conditions and labor
(1) In general If any individual (whether or not eligible for benefits under this subchapter) comes to a hospital and the hospital determines that the individual has an emergency medical condition, the hospital must provide either—
(A) within the staff and facilities available at the hospital, for such further medical examination and such treatment as may be required to stabilize the medical condition, or
(B) for transfer of the individual to another medical facility in accordance with subsection (c) of this section.
(2) Appropriate transfer An appropriate transfer to a medical facility is a transfer—
(A) in which the transferring hospital provides the medical treatment within its capacity which minimizes the risks to the individual’s health ...;
(B) in which the receiving facility—
(i) has available space and qualified personnel for the treatment of the individual, and
(ii) has agreed to accept transfer of the individual and to provide appropriate medical treatment;

|4The Plaintiffs’ petition alleges that MCLNO: (1) failed to properly stabilize Mr. Bonnette’s medical condition; and (2) improperly transferred Mr. Bonnette to the custody of the NOPD. MCLNO argues that as a State agency it is protected from suit under EMTALA by sovereign immunity. Alternatively, if sovereign immunity does not apply, any tort claim against MCLNO is limited to the Louisiana Medical Malpractice Act. Additionally, EMTA-LA does not apply to a State run hospital whose purpose it is to treat indigent patients.

First, we must determine if the State Constitution precludes the plaintiffs from asserting an EMTALA cause of action against a State agency. Article XII, § 10(A) of the constitution states:

(A) No immunity in contract and tort. Neither the state, a state agency, nor a political subdivision should be immune from suit and liability in contract or for injury to person or property.

The plaintiffs’ EMTALA claim clearly sounds in tort. Thus, the State has waived its immunity. Further, the Louisiana Supreme Court has found that even though medical malpractice claims and “dumping” claims may overlap, the federal cause of action arising from EMTALA is separate and distinct from a state malpractice cause of action. Spradlin, 758 So.2d at 121.

Next, MCLNO cites Collins v. State of Louisiana, Health Care Authority, 99-2308 (La.App. 4 Cir. 7/12/00), 774 So.2d 167 and Boudreaux v. State, 687 So.2d 596 (La.App. 4 Cir. 1/14/97) for the proposition that an EMTALA claim cannot be asserted against the State Charity System.

In Boudreaux, the trial court dismissed the EMTALA claim on motion for partial summary judgment. This court, denied the plaintiffs writ finding the | ^plaintiff did not have proof that the failure to diagnose was based on her indigent status and partial summary judgment was appropriate since EMTALA gives a separate cause of action from state medical malpractice claim. Id.

In Collins, a jury awarded damages to plaintiff in amount of $938,000, the district court judge reduced the award to $500,000. This court affirmed the lower court’s finding that the plaintiff did not prove the EMTALA claims. Therefore, the damage award for violating the EMTALA statute was duplicative to the medical malpractice claims of wrongful death and survival action, so a reduction in the award to the medical malpractice cap was warranted. Collins, supra.

Athough the evidence in both of the above cited cases was insufficient to support an EMTALA claim against the State Charity System, this circuit did not bar or prohibit such a claim from being asserted. This Court did make mention of the “nonsensical” nature of pursuing a “dumping” claim based on indigence against a system designed to treat the indigent. However, that was not the determining factor of why the EMTALA claim failed. The failure of the claim was solely based on a lack of evidence in support of the allegations. In the instant case we are faced with a patient that was allegedly “dumped” based on his status as a prisoner. The Supreme Court in Spradlin discussed the intent of Congress in enacting EMTALA stating:

[wjhile the concern was narrow, Congress did not narrowly tailor the scope of persons protected by EMTALA. Congress did not limit EMTALA’s scope to indigents or uninsureds; rather, Congress broadly defined the class of plaintiffs as any “individual who presented himself or herself at a covered hospital’s emergency department.

Accordingly, this Court finds that Louisiana recognizes EMTALA as a valid cause of action. Furthermore, there is nothing prohibiting such a claim against LMCLNO. Therefore, the trial court’s dismissal of the EMTALA claim in reversed and the case is remanded for further proceedings in accordance with this opinion.

REVERSED AND REMANDED.

      . Based on the briefs filed in the record, these facts appear to be undisputed.


author: ROLAND L. BELSOME, Judge. TOBIAS, J.,

text:
    James NOONAN v. CITY OF NEW ORLEANS.
    No. 2006-CA-1121.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 2007.
    William Ken Hawkins, The Work Injury Center of Southeast Louisiana, Ponchatou-la, LA, For Plaintiff/Appellant.
    Richard L. Seelman, Wayne J. Fontana, Hunter & Fontana, L.L.P., New Orleans, LA, For Defendant/Appellee.
    (Court composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS JR., Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

11 Plaintiff-Appellant, James Noonan, appeals the trial court’s judgment granting Defendant-Appellee’s Motion for New Trial and dismissing his claims with prejudice. For the reasons that follow, we reverse and remand.

FACTS

Appellant, James Noonan, began receiving workers’ compensation benefits in October 1994 for a cardiovascular illness he contracted while employed with Appellee, the City of New Orleans (“the City”), as a firefighter. The City stipulated that Mr. Noonan was permanently and totally disabled as a result of his illness. In January 1995, Mr. Noonan also began receiving his disability retirement pension. Starting in June 2002, the City reduced Mr. Noonan’s worker’s compensation benefits to offset the annual 3% cost of living increases from his disability retirement pension. In August 2002, Mr. Noonan filed suit to reinstate his full workers’ compensation benefits or, in the alternative, to have the court find that the City could take only one offset, calculated upon Mr. Noonan’s initial disability pension award, and that the City could not annually recalculate the offset with each increase in Mr. Noonan’s disability retirement pension payment. The | ^parties have since stipulated, however, that the City may take the initial offset pursuant to La. R.S. 23:1225(C). Accordingly, the only issue before this Court with regard to La. R.S. 23:1225 is whether the City may incorporate cost of living increases in Mr. Noonan’s disability retirement pension when calculating the 23:1225(C) offset.

PROCEDURAL HISTORY

|3On June 11, 2004, Mr. Noonan filed a Motion for Summary Judgment, which was initially granted by the trial court. In its original judgment on January 10, 2005, the trial court found that the City had no legal authority to annually recalculate the 1225(C) cost of living increase, and further, that the annual recalculation would lead to the absurd consequence of the City eventually paying zero for workers’ compensation benefits. The court concluded that LSA-R.S. 23:1225(A), which explicitly disallows annual recalculations for cost of living with regard to federal benefits, was the clearest expression of the legislative intent, and granted Mr. Noonan’s motion for summary judgment.

The City subsequently filed a Motion for a New Trial. The Motion for New Trial was granted, and after a hearing on April 18, 2005, the trial court took the matter under advisement. The trial court ultimately reversed its January 10, 2005 judgment in favor of Mr. Noonan and found in favor of the City, effectively combining its judgment on the Motion for New Trial and Amended Final Judgment on August 15, 2005.

STANDARD OF REVIEW

Because the judgment from which Mr. Noonan appeals includes a ruling on his motion for summary judgment as well as a judgment on a motion for new trial, we review the lower courts findings de novo. Reynolds v. Select Props., Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180,1183.

DISCUSSION

|4Mr. Noonan sets forth two assignments of error. First, he argues that the trial court erred in granting the City’s Motion for New Trial, and second, that the merits of the case and jurisprudence require a reversal of the trial court’s ruling on the City’s Motion for New Trial.

We disagree with Mr. Noonan’s assertion that the City’s Motion for New Trial was untimely filed. The record reflects that the notice of final judgment was mailed on January 11, 2005. Although the final judgment was signed on January 10, 2005, the cover letter that was mailed to the parties with the judgment is dated January 11, 2005. Louisiana law provides that the delay for filing a Motion for New Trial is seven days from the date the clerk mails the Notice of Judgment:

The delay for applying for a new trial shall be seven days, exclusive of legal holidays. The delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913.

La. C.C.P. art. 1974 (emphasis added). Accordingly, pursuant to Article 1974, the City had seven days, exclusive of legal holidays, from January 12, 2005 to file its Motion for New Trial. January 15, 2005 was a Saturday, and January 16, 2005 was a Sunday, both legal holidays. Likewise, January 17, 2005 was Martin Luther King, Jr. Day, also a legal holiday. Because the record demonstrates that the City faxed its motion to the court on January 21, 2005, we find that the City put forth sufficient evidence to prove that the Motion for New Trial was filed within the limits set forth by Article 1974. This assignment of error is without merit.

With respect to the second assignment of error, we find that the trial court erred in finding that the City is entitled to incorporate cost of living increases in|BMr. Noonan’s disability retirement pension when calculating the 23:1225(C) offset. While La. R.S. 23:1225 explicitly disallows offsets for cost of living increases in Social Security benefits, the statute is silent with regard to whether offsets may be taken for cost of living increases in workers’ compensation benefits. In its written reasons for judgment, the trial court noted that the reason for the legislative distinction between the two was because the cost of living increase for City employees is “employer-funded,” while Social Security is federally funded. The trial court’s reasons for judgment also cited to the legislative intent behind the statute’s limitation to two-thirds of a worker’s average weekly wage, namely, the public policy considerations of discouraging malingering and encouraging workers to return to the workforce. In Mr. Noonan’s case, however, the public policy considerations are of no moment; because Mr. Noonan is totally and permanently physically disabled, no amount of encouragement or discouragement will allow Mr. Noonan to ever return to the workforce.

We find that the trial court’s reasoning in its January 10, 2005 judgment was correct, and that the language in La. R.S. 23:1225(A) prohibiting offsets for cost of living increases is the clearest expression of legislative intent. Workers’ 1 ^Compensation is fundamentally “social legislation through which ‘employees and employers surrender certain advantages in exchange for others which are more valuable to both parties and society.’ ” Melancon v. Lafayette Ins. Co., 2005-762, p. 9 (La.App. 3 Cir. 3/29/06), 926 So.2d 693, 702 (citing Deshotel v. Guichard Operating Co., Inc., 03-3511, p. 7 (La.12/20/04) 916 So.2d 72, 77). ^Additionally, we note the well-established principle that workers’ compensation law should be construed liberally to afford coverage. See, e.g., Danielsen v. Security Van Lines, Inc., 245 La. 450,158 So.2d 609 (1963).

Additionally, a statute’s silence cannot automatically be construed as an authorization by the Legislature. See Savage v. Prator, 2004-2904, p. 9 (La.1/19/06), 921 So.2d 51, 56; Willis-Knighton Medical Center v. Caddo Shreveport Sales and Use Tax, 2004-0473, p. 38 (La.4/1/05), 903 So.2d 1071, 1094. It is well-settled that the meaning of a statutory provision is established by reviewing the statute in its entirety. McNamara v. Central Marine Service, Inc., 507 So.2d 207, 209 (La.1987). Moreover, courts must reconcile the various sections of a statute as being a simultaneous expression of legislative intent. Id. In this case, a review of La. R.S. 23:1225 in its entirety reveals no mention of allowing an annual offset for cost of living increases for indemnity benefits. To the contrary, La. R.S. 23:1225(A) expressly prohibits a reduction in benefits for cost of living increases. Because we find no express authority in La. R.S. 23:1225(0) which would allow the City to annually recalculate Mr. Noonan’s cost of living adjustment, we conclude that the trial court committed legal error in granting a new trial in favor of the City. As the trial court observed in its original judgment, “such recalculations violate the spirit and intent of the Louisiana Worker’s Compensation Act.”

Appellees cite to Palisi v. City of New Orleans Fire Department, 95-1455 (La.App. 4 Cir. 3/12/97), 690 So.2d 1018, in support of their position. Although | (Palisi involved, inter alia, firefighters who disputed offset calculations by the City, we find that the instant case can be factually distinguished from Palisi. In Palisi, this Court held that the City was entitled to an offset for disability retirement benefits in the proportion funded by the employer pursuant to the language in La. R.S. 23:1225(C)(l)(c). Accordingly, the main issue in Palisi with respect to offsets was whether the City had borne its burden of proving in what proportion the benefits were funded by the City, and whether factoring in interest earned on the City’s contributions would alter the proportion. Palisi, 690 So.2d at 1037. This Courts decision in Palisi did not make any specific findings with regard to annual recalculation of offsets for cost of living increases. Further, the offset calculations at issue in Palisi were, in fact, explicitly set forth in the language of 23:1225(C)(l)(c); in the instant case, however, the statute is silent with respect to the annual recalculations of cost of living offsets to which the City asserts it is entitled.

CONCLUSION

Because the language of La. R.S. 23:1225(C) does not specifically allow offsets for cost of living increases, and because the Workers’ Compensation Act is to be construed liberally in favor of the injured employee, Danielsen v. Security Van Lines, Inc., supra, we find that the City is not entitled to annually recalculate offsets for cost of living increases. Accordingly, the matter is hereby reversed and remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

TOBIAS, J., concurs in the result and assigns reasons.

TOBIAS, J.,

concurs in the result and assigns reasons.

|,I reluctantly concur in the result reached by the majority because I find that La. R.S. 23:1225 does not permit even one initial offset under the facts presented in this case.

Section 1225(C)(1), which authorizes a reduction of the workers’ compensation obligation when the employee receives other enumerated benefits, is a restriction on an injured employee’s right to workers’ compensation benefits and must be strictly construed. Jones v. General Motors Co., 03-1766, p. 12 (La.4/30/04), 871 So.2d 1109, 1117 (citing Cousins v. City of New Orleans, 608 So.2d 978, 981 (La.1992)). An employer seeking credit for benefits covered by the statute has the burden of proving both entitlement to and the amount of the credit. Id.

The settled rule of statutory construction that the mention of one thing in a statute implies the exclusion of another thing, i.e., the doctrine of Expressio Unius est Exclusio Alterius, dictates that when the legislature specifically enumerates a series of things, the legislature’s omission of other items, which could have easily been included in the statute, is deemed intentional. State Through Dept, of Public Safety and Corrections, Office of State Police, Riverboat Gaming Div. v. Louisiana Riverboat Gaming Com’n and Horseshoe Entertainment, 94-1872 (La.5/22/95), 12655 So.2d 292, 302 (citing State ex rel. Fitzpatrick v. Grace, 187 La. 1028, 175 So. 656 (1936); Burgin v. Forbes, 293 Ky. 456, 169 S.W.2d 321, 325 (1943); Newblock v. Bowles, 170 Okla. 487, 40 P.2d 1097, 1100 (1935); Sutherland Statutory Construction, § 47.23 (5th Ed.1992); Earl T. Crawford, The Construction of Statutes, § 195, at 334 (1940)).

As another rule of statutory construction instructs us, when a statute is clear and unambiguous and its application does not lead to absurd consequences, the statute is applied as written, and no further interpretation may be made in search of legislative intent. See La. C.C. art. 9; La. R.S. 1:4. I do not find any ambiguity in the statute at issue.

The statute is silent on whether cost-of-living increases in one’s disability retirement pension may be offset when calculating the benefits due pursuant to § 1225(C), while it specifically provides for other types of offsets. In my opinion, had the legislature intended the offset urged by the City, it could have done so by adding an additional sentence to subsection C. Thus, a clear reading of § 1225(C) reveals a prohibition against the offset without analogy to any other part of the statute.

I would further find that the parties are prohibited from stipulating that the City may take even an initial offset pursuant to § 1225(C), if that resulted in the plaintiff receiving less sixty-six and two-thirds percent of his weekly wages. See Jones, supra, at pp. 15-16, 871 So.2d at 1120. Because this issue is not before us, I, therefore, concur in the result reached by the majority.

      . LSA-R.S. 23:1225(C) provides (emphasis added):
      C. (1) If an employee receives remuneration from:
      (a) Benefits under the Louisiana Workers’ Compensation Law.
      (b) Repealed by Acts 2003, No. 616, § 1.
      (c) Benefits under disability benefit plans in the proportion funded by an employer.
      (d) Any other workers’ compensation benefits, then compensation benefits under this Chapter shall be reduced, unless there is an agreement to the contrary between the employee and the employer liable for payment of the workers’ compensation benefit, so that the aggregate remuneration from Sub-paragraphs (a) through (d) of this Paragraph shall not exceed sixty-six and two-thirds percent of his average weekly wage.
      (2)Notwithstanding the provisions of Paragraph (1) of this Subsection, benefits payable for injury to an employee under this Chapter shall not be reduced by the receipt of benefits under this Chapter or any other laws for injury or death sustained by another person.
      (3) If an employee is receiving both workers’ compensation benefits and disability benefits subject to a plan providing for reduction of disability benefits, the reduction of workers’ compensation benefits required by Paragraph (1) of this Subsection shall be made by taking into account the full amount of employer funded disability benefits, pursuant to plan provisions, before any reduction of disability benefits are made.
      (4) If a conflict arises between the application of the provisions of this Section and those of any other Louisiana law or contract of insurance, the provisions of this Section shall control.

      . LSA-R.S. 23:1225(A) provides (emphasis added):
      A. The benefits provided for in this Subpart for injuries producing permanent total disability shall be reduced when the person receiving benefits under this Chapter is entitled to and receiving benefits under 42 U.S.C. Chapter 7, Subchapter II, entitled Federal Old Age, Survivors, and Disability Insurance Benefits, on the basis of the wages and self-employment income of an individual entitled to and receiving benefits under 42 U.S.C. § 423; provided that this reduction shall be made only to the extent that the amount of the combined federal and workers' compensation benefits would otherwise cause or result in a reduction of the benefits payable under the Federal Old Age, Survivors, and Disability Insurance Act pursuant to 42 U.S.C. § 424a, and in no event will the benefits provided in this Sub-part, together with those provided under the federal law, exceed those that would have been payable had the benefits provided under the federal law been subject to reduction under 42 U.S.C. § 424a. However, there shall be no reduction in benefits provided under this Section for the cost-of-living increases granted under the federal law after the date of the employee’s injury.

      . Essentially, "[t]he employee waives the right to sue his employer for damages, if he is injured in the course and scope of his employment, in exchange for receiving workers’ compensation benefits, and the employer limits his financial liability for such injuries in exchange for paying workers’ compensation benefits.” Melancon, supra, 926 So.2d at 702.

      . In Deshotel, supra, the Louisiana Supreme Court explained in great detail the policy and purpose behind the Workers’ Compensation Act:
      Prior to the enactment of Louisiana's workers' compensation scheme, employees injured or killed in workplace accidents pursued traditional tort remedies to compensate them for their damages. 13 WEX S.MALONE H. ALSTON JOHNSON, III, LOUISIANA CIVIL LAW TREATISE: WORKERS COMPENSATION LAW AND PRACTICE § 31 at p. 33 (2002). However, the injured worker was placed at an extreme disadvantage when litigating his claims since fellow employees were often reluctant witnesses tom between loyalty to the injured party and fear of reprisal from the employer. Id. In addition, employees often compromised their claims for a fraction of the full value when faced with the expenses and delay associated with litigation. Id. Those employees who were able to prove employer fault and recover a damage award often forfeited a large portion of any recovery received paying contingency fees. Id. As a result, the financial burden placed upon the employee and his or her family resulting from injury or death was often borne by organized charities or the state. Id.

      In 1914, in response to learning that the available tort remedies were ineffective, the Legislature adopted the Employers’ Liability Act, Act No. 30 of 1914, which persisted until 1975 without basic change. Id. at § 36, p. 44. In 1975, The Louisiana Workers’ Compensation Act in its present form was adopted from the original Employers’ Liability Act. The Act rests upon the sound economic principle that consumers who enjoy the product of a business-whether it be in the form of goods or services-should ultimately bear the cost of the injuries or deaths that are incident to the manufacture, preparation and distribution of the product. Id. at § 32, p. 34. Under the compensation principle, the expected cost of injury or death to workers can be anticipated and provided for in advance through the medium of insurance, and the premiums can be regarded as a production cost when fixing the price of the commodity or service. Id. The purpose of the Act was to create a compromise in which both employees and employers surrender certain advantages in exchange for others which are more valuable to both parties and society. Id. at § 32, p. 35. For example, under the compensation scheme, the employee relinquishes his right to be made whole in a civil suit, while the employer cedes his available tort defenses Id. As this Court stated in Atchison v. May, 201 La. 1003, 10 So.2d 785, 788 (1942):
      The act, which is social legislation, was passed for the joint benefit of labor and management in order to insure that employees who have become disabled as a result of their labors in hazardous industries would have, during the period of their disability, a weekly income for the upkeep of themselves and their families. It was also deemed advisable to provide for compensation, in cases of death to the persons dependent upon the employee for support so that these persons would not be entirely bereft of funds during the period of time following the employee’s death when they, of necessity, were compelled to reconstruct their lives and seek a means of support,-thus avoiding the possibility that these persons would become public charges. In order that this end might be accomplished, the Legislature provided for sacrifices to be made by both the employer and the employee. The employee was required to waive the right granted him under the general law, Article 2315 of the Civil Code, in consideration of receiving a fixed percentage of his wages during the period of his disability. The employer, on the other hand, was deprived of the defenses afforded to him by the general law and he was assured that, in case any of his employees were injured, they would be entitled to no more than the amount stipulated in the statute as compensation during the period of disability.

        Deshotel, supra, 916 So.2d at 76-78.