author: THIBODEAUX, Chief Judge. AMY, J.,

text:
    JIM WALTER HOMES, INC. v. John C. GUILBEAU.
    No. 2005-1473.
    Court of Appeal of Louisiana, Third Circuit.
    June 21, 2006.

      Harry Karl Burdette, Lafayette, LA, for Defendant/Appellant, John C. Guilbeau.
    Matthew M. Putfark, Juge, Napolitano, Guilbeau, Ruli, Frieman & Whiteley, Baton Rouge, LA, for Secondary Plaintiff/Appellant, Jim Walter Homes, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   THIBODEAUX, Chief Judge.

| defendant and claimant, John Guilbeau (Mr. Guilbeau), and his former employer, Plaintiff, Jim Walter Homes, Inc. (JWH), through its workers’ compensation insurance carrier, Lumbermen’s Underwriting Alliance (LUA), both appeal the judgment of the Office of Workers’ Compensation (OWC). Mr. Guilbeau appeals the judgment that he made a willfully false statement for the purpose of obtaining and continuing workers’ compensation benefits in violation of La.R.S. 23:1208. JWH and LUA appeal the judgment that they unreasonably paid the first week of benefits to Mr. Guilbeau in a late and untimely manner, and therefore should be cast with a penalty and attorney fees. For the following reasons, we affirm the judgment of the OWC.

I.

ISSUE

We shall determine:

1. whether the workers’ compensation judge (WCJ) committed manifest error in finding that Mr. Guilbeau made a willfully false statement for the purpose of continuing receipt of workers’ compensation benefits, thereby violating La.R.S. 23:1208; and,
2. whether La.R.S. 23:1208, when violated, requires the forfeiture of benefits retroactive to the date of entitlement, or prospectively from the date the violation occurred.

II.

FACTS

In July of 1999, Mr. Guilbeau was employed by Corey Freeman to perform roofing and framing duties on new home construction projects. Corey Freeman was a subcontractor hired by JWH. On July 9, 1999, while in the course and 12scope of his work duties, Mr. Guilbeau fell off of a roof. He landed approximately twenty to twenty-five feet below on his buttocks and feet. As a result of this fall, he sustained serious injuries to his right ankle and heel. He also experienced serious back pain and injury as a result of the accident. He underwent a number of surgeries and still receives continuous medical treatment.

Mr. Guilbeau received indemnity and medical benefits from the date of his accident through the end of March, 2003. In order to receive his benefits, he was required to fill out an Employee Monthly Report of Earnings, called Louisiana Department of Labor-Workers’ Compensation Form 1020. Mr. Guilbeau did not always timely send in Form 1020 every thirty days as required. He admitted that in 2003, he did not turn in his Form 1020 for the months of April, May, and June of that year until July of 2003.

In April of 2003, LUA conducted a video-taped surveillance of Mr. Guilbeau which revealed that he was working on roofs and doing the work of a roofer by installing shingles. Mr. Guilbeau denied being able to climb roofs and to perform roofing duties. Video surveillance of Mr. Guilbeau was also conducted on May 9, 2003, showing him actively performing this work. JWH and LUA filed a Disputed Claim for Compensation Benefits with the OWC on May 12, 2003. On June 19, 2003, Mr. Guilbeau’s deposition was taken by JWH and LUA for the purpose of prosecuting the claim against him. During the course of that deposition, the following colloquy occurred:

Q. You mentioned a bunch of different jobs that you’ve had as far as, like— I think, at some point, you said you owned a couple lounges. Have you been able — Have you tried to go back to work doing any of that type of work since your accident?
A. No, sir.
laQ. You mentioned that you were a roofer by trade. Have you been able— Have you tried to go back to doing roofing work since your accident other than your limited basis with Corey?
A. No, sir.
Q. And I think you said, with Corey, all you were really doing was kind of moving the materials for him, bringing the material to him?
A. Bringing material to him.
Q. Not getting up on roofs or ladders or anything like that?
A. No, sir.
Q. Since your accident, you’ve kind of not been able to do that, as far as get up on roofs, do that type of work?
A. Yes, sir.
Q. Have you been self-employed in any capacity since your accident in 1999?
A. No sir.
Q. Have you done any type of odd jobs for friends, family members, since the accident—
A. No, sir.
Q. —in '99
A. No, sir.
Q. So, since 1999, your accident in July of '99, your only employment has been that one to one and a half weeks with Corey Freeman?
A. Yes, sir.

Based on his sworn statement that he could not get up on a roof or do roofing work compared with the video surveillance of Mr. Guilbeau clearly working on a roof, JWH and LUA alleged that Mr. Guilbeau had violated La.R.S. 23:1208, and should, therefore, forfeit all rights to any and all compensation benefits. 1 Louisiana Revised Statutes 23:1208 authorizes a denial of all benefits to a claimant if that claimant has willfully made a false statement or representation for the purpose of obtaining benefits or payments under Louisiana workers’ compensation laws.

The WCJ found that Mr. Guilbeau had made a false statement, willfully, for the purpose of receiving workers’ compensation benefits, and therefore had violated La.R.S. 23:1208. Specifically, when Mr. Guilbeau stated in his deposition that he could not get up on roofs, and when he stated that he did not do any roofing work besides handling materials, he had made a willfully false statement. The videotape demonstrated that he had done those activities. His only explanation for his failure to admit that he had done those activities was that he wanted to continue receiving benefits. The WCJ further adjudged that La.R.S. 23:1208(E), requiring forfeiture of any right to benefits, applied only to benefits which might have been owed after the occurrence of the violation. Therefore, the WCJ applied the statute prospectively from the date of the violation, not retroactively to the date when Mr. Guilbeau was first entitled to benefits.

Based on that judgment, the WCJ also found that LUA was late in paying the initial benefits owed to Mr. Guilbeau, and therefore assessed a penalty of $2,000.00 against it, and awarded Mr. Guilbeau $2,500.00 in attorney fees.

Mr. Guilbeau filed this appeal, arguing that his actions did not constitute willful false representations. JWH and LUA also appeal, arguing that La.R.S. 23:1208(E) should be applied retroactively to the date of entitlement to benefits; therefore, the judgment awarding penalties and attorney fees to Mr. Guilbeau for late payment was erroneous.

III

LAW AND DISCUSSION

Standard of Review

Louisiana Revised Statutes 23:1208 governs the parameters for determining if a claimant has committed fraud for the purpose of obtaining workers’ compensation benefits. The applicable sections of that statute read as follows:

§ 1208. Misrepresentations concerning benefit payments; penalty

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

La.R.S. 23:1208.

Under the unambiguous and clear language of the statute, an employer claiming that an employee has violated La.R.S. 23:1208 must prove “that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment.” Resweber v. Haroil Constr. Co., 94-2708, p. 7 (La.9/5/95), 660 So.2d 7, 12. If the WCJ finds that all three of “these requirements are met, Section 1208 applies and its forfeiture provisions must be enforced.” Id. at 14.

The determination by a WCJ as to whether a claimant has made a false statement, willfully, for the purpose of obtaining workers’ compensation benefits is a finding of fact, and is, therefore, subject to the manifest error standard of review. Phillips v. Diocese of Lafayette, 03-1241 (La.App. 3 Cir. 3/24/04), 869 So.2d 313. However, we must keep in mind that La. R.S. 23:1208(E) is penal in nature. Any | fistatute that is penal in nature must be strictly construed in favor of the one receiving benefits under that chapter of the law. Fontenot v. Reddell Vidrine Water Dist, 02-439 (La.1/14/03), 836 So.2d 14; Olander v. Schillilaegh’s, 04-725 (La.App. 3 Cir. 3/23/05), 899 So.2d 97.

La.R.S. 23:1208 authorizes forfeiture of benefits upon proof that (1) there is a false statement or representation; (2) it is willfully made; and (3) it is made for the purpose of obtaining or defeating any benefit or payment. The statute applies to any false statement or misrepresentation made willfully by a claimant for the purpose of obtaining benefits. All of these requirements must be present before a claimant can be penalized. Because this statute is penal in nature, it must be strictly construed, both in its substantive ambit and in its penalty provisions.
Concerning the standard of appellate review of a forfeiture claim, the court in Rowan Cos., Inc. v. Powell, 02-1894, 02-1895, p. 6 (La.App. 1 Cir. 7/2/03), 858 So.2d 676, 680, writ denied, 03-2177 (La.11/14/03), 858 So.2d 425 (citations omitted), stated:
The determination of whether there is a false statement or representation willfully made for the purpose of obtaining any benefit or payment involves inherently factual determinations and, thus, this court’s review of those findings by the WCJ is governed by the manifest error standard. Under that standard of review, this court may only reverse the WCJ’s decision if we find (1) there is no reasonable factual basis for the finding in the record and (2) the finding is clearly wrong or manifestly erroneous.

Phillips v. Diocese of Lafayette, 869 So.2d at 316-17, (quoting in part Flintroy v. Scott Cummins Salvage, 36,857, p. 12 (La. App. 2 Cir. 3/10/03), 839 So.2d 1231, 1238, unit denied, 03-1068 (La.6/6/03), 845 So.2d 1093 (citations omitted)).

La.R.S. 23:1208

The WCJ had the opportunity of reviewing both written and audio-visual evidence to help guide and inform her judgment. The WCJ had the opportunity to question Mr. Guilbeau during the November 2004 hearing. She determined that Mr. Guilbeau knew he was not telling the truth in his deposition testimony, but made the |7statement that he could not go up on roofs so that his workers’ compensation benefits would not be terminated. She specifically stated in her written reasons for judgment that:

from the evidence and from the direct relationship between the false statement and the nature of the claim, that the statement was made willfully for the purpose of obtaining benefits.... The WCJ does not believe that Mr. Guilbeau was “confused” at his deposition. Mr. Guilbeau flatly denied getting up on a roof. The video surveillance shows otherwise.

The standard of review by the appellate court of findings of fact by the WCJ is to determine whether the WCJ committed manifest error or was clearly wrong. Metoyer v. Roy O. Martin, Inc., 03-1540 (La.App. 3 Cir. 12/1/04), 895 So.2d 552, writ denied, 05-1027 (La.6/3/05), 903 So.2d 467; Wiley v. Grand Casino Avoyelles, 98-1468 (La.App. 3 Cir. 4/21/99), 731 So.2d 518, writ denied, 99-2032 (La.11/5/99), 750 So.2d 180. As long as the record supports the findings of fact of the WCJ, and these findings of fact are reasonable, then an appellate court cannot overturn those findings of fact. Metoyer, 895 So.2d 552.

Mr. Guilbeau was given a number of chances to tell the truth about his activities. He instead stated that he did not go up on roofs. Even during the hearing in November of 2004, he still tried to twist the truth about his ability to get up on roofs. He stated, when confronted with the videotape showing him up on a roof for a prolonged period of time, vigorously engaged in what appeared to be roofing activities, that he could get up on a roof, but just could not do it for an eight hour day. He also did not voluntarily disclose other work activities he had performed until confronted with evidence of those acts during the hearing.

While this court has made clear that the penalty provision found in 1 sLa.R.S. 23:1208 must be strictly construed, the Louisiana Supreme Court has made it equally clear that the legislature intended it to be used in order to stop fraudulent abuses of the workers’ compensation system.

The legislature has determined workers’ compensation fraud is a severe and growing problem and has continually amended Section 1208 to make it easier to enforce and to make the penalties stiffer. It is clear from the history of the statute that the legislature intended that any false statements or representations willfully made for the purpose of obtaining benefits would result in forfeiture of those benefits, and this legislative intent cannot be ignored.

Resweber, 660 So.2d at 12-13.

We find no manifest error in the findings of fact of the WCJ. The evidence in the record supports her conclusion that Mr. Guilbeau’s statement on June 19, 2003 was a willful misstatement, made for the purpose of continuing to obtain benefits under the Louisiana workers’ compensation system. Therefore, the judgment of the OWC that Mr. Guilbeau violated La. R.S. 23:1208 is affirmed.

Forfeiture of Benefits — Retroactively to Date of Entitlement or Prospectively From the Date of the False Statement?

One of the purposes of Louisiana Workers’ Compensation Act is to provide a humane solution to the potential diminution of earning capacity and lack of medical care that an injured worker might experience.

It is well established that the workers’ compensation act is remedial in nature. In order to effectuate the humane policies it reflects, the law is to be liberally construed in favor of the injured employee. Breaux v. Travelers Ins. Co., 526 So.2d 284 (La.App. 3rd Cir.1988). Provisions of the worker’s compensation law should be liberally construed in favor of the claimant. Lester v. Southern Casualty Insurance Company, 466 So.2d 25 (La.1985); Hill v. L.J. Earnest, Inc., 568 So.2d 146 (La.App. 2d Cir.1990), writ denied, 571 So.2d 652 (La.1990).

Pinkins v. Cardinal Wholesale Supply; Inc., 619 So.2d 52, 55 (La.1993). With this standard of review as our guide, we now turn to the question of when the forfeiture of benefits should commence when a WCJ has decreed that a claimant has violated La.R.S. 23:1208.

In Apeck Construction, Inc. v. Bowers, 03-486 (La.App. 3 Cir. 12/10/03), 862 So.2d 1087, writs denied, 04-459 (La.4/23/04), 870 So.2d 301, this court answered the question as to when the forfeiture of benefits required for a violation of La.R.S. 23:1208 should begin. Based on the language of La.R.S. 23:1208(D), it was clear to this court that forfeiture of benefits must occur after the fraudulent statement or representation is made, and the employer becomes aware of this act. The language of La.R.S. 23:1208(D) reads as follows:

D. In addition to the criminal penalties provided for in Subsection C of this Section, any person violating the provisions of this Section may be assessed civil penalties by the workers’ compensation judge of not less than five hundred dollars nor more than five thousand dollars payable to Kids Chance Scholarship Fund, Louisiana Bar Foundation, and may be ordered to make restitution. Restitution may only be ordered for benefits claimed or payments obtained through fraud and only up to the time the employer became aware of the fraudulent conduct.

(emphasis added).

Our court’s reasoning underlying this interpretation of subsection D and its guidance regarding the date when forfeiture of benefits becomes effective remains true today:

The reason for this is simple. Before the misrepresentation there has been no punishable conduct. The triggering mechanism is the fraudulent conduct. Resweber, 660 So.2d 7, (See footnote 7). Once the misrepresentation occurs, the provisions of La.R.S. 23:1208 apply, and from that point the claimant’s right to benefits is forfeited. Any other interpretation would have the effect of promoting a system whereby the employers would fail to commence the payment of workers’ compensation benefits in the hope of a future false statement which would relieve it completely of the obligation of paying workers’ compensation benefits, including its own actions which would be punishable under the Workers’ Compensation Act. This would thwart the Impurpose of the Workers’ Compensation Act which “was passed for the joint benefit of labor and management in order to insure that employees who became 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.” O’Regan v. Preferred Enters., Inc., 98-1602, p. 5 (La.3/17/00), 758 So.2d 124, 128 (quoting Atchison v. May, 201 La. 1003, 10 So.2d 785, 788 (1942)).

Apeck, 862 So.2d at 1093.

Further, the first circuit agrees with our court’s position. In Leonard v. James Indus. Constructors, 03-40, p. 9 (La.App. 1 Cir. 5/14/04), 879 So.2d 724, 730, writ denied, 04-1447 (La.9/24/04), 882 So.2d 1139, it explained:

Specifically, where, as here, the misrepresentation is not made at the time of the accident, but occurs at some later time, we believe that the forfeiture should be effective at the time of the misrepresentation, rather than the time of the accident.
Interpreting La. R.S. 23:1208 to require forfeiture of benefits from the time of the misrepresentation prospectively, and not retroactively, comports with the law and jurisprudential rules on statutory interpretation. The word “any” in the statute is quantitative, not temporal. As noted previously, statutory forfeiture of workers’ compensation benefits is a harsh remedy and, as such, must be strictly construed. It is also noteworthy that the statute is quasi-penal, and such statutes are to be strictly construed. See Faught v. Ryder/P*I*E Nationwide, Inc., 543 So.2d 918, 921 (La.App. 1st Cir.1989), writ denied, 545 So.2d 1040 (La.1989). Further, retroactive application would not result in a “forfeiture” of benefits, but, in effect, a “denial” of benefits, if it included benefits to which the employee was undisputedly entitled.

Id. (footnote omitted).

This conclusion only makes logical sense given the requirements for application of La.R.S. 23:1208. An employer must prove, and a WCJ must find, that a claimant made a false statement or representation, that it was willfully made, and made for the purpose of obtaining benefits. The employer bears the burden of proving that a claimant has violated La.R.S. 23:1208. Id. All three requirements of l^that statute must be proven in order for a claimant to risk forfeiting his or her workers’ compensation benefits. “Forfeiture is a harsh remedy and statutory forfeiture must be strictly construed. An employer has the burden of proving each element within the statute, and the lack of any one of the elements is fatal to an employer’s avoidance of liability. Wise, 707 So.2d at 1218.” Id. at 728 (citing Wise v. J.E. Merit Constructors, Inc., 97-684 (La.1/21/98), 707 So.2d 1214). If La.R.S. 23:1208(E) were applied retroactively to the date when benefits first accrued, a claimant would lose all benefits, not just those for which there is actual proof that benefits are being obtained or continued via a false, willful statement. To penalize a claimant retroactively for current acts of fraud would go against the beneficent purpose of the statute, and would betray the purpose underlying a strict interpretation of the penalty provisions therein. If the legislature meant to provide such a harsh remedy, the words “retroactive to the date when benefits accrued” would have to be in La.R.S. 23:1208(E). To find otherwise would mean we were strictly construing the penalty provision in favor of the employer, not the claimant.

We, therefore, find that the WCJ was eminently correct in ordering that all workers’ compensation benefits that Mr. Guilbeau might be due from June 19, 2003 through to the present and future regarding this particular accident and resulting injuries are forfeited. It would have been clearly wrong to order otherwise.

Penalty and Attorney Fees to Mr. Guilbeau for Late Payment of Initial Benefits

The standard of review by an appellate court of the WCJ’s imposition of penalties and attorney fees on an employer is that of manifest error. “Whether an employer should be cast with penalties and attorney’s fees is a finding of fact which will not be reversed in the absence of manifest error.” Wiley, 731 So.2d at 524. Therefore, since we find that La.R.S. 23:1208 applies prospectively from the date the 112claimant made a false, willful statement or representation for the purpose of obtaining benefits, the WCJ’s judgment assessing penalties and attorney fees against JWH and LUA for late payment of benefits which accrued prior to June 19, 2003 is affirmed.

Constitutionality of La.R.S. 23:1208

Mr. Guilbeau asks this Court to review the constitutionality of La.R.S. 23:1208. Because he did not raise this question in the proper procedural manner, it is not properly before this court. In order to raise the constitutionality of any provisions of the workers’ compensation statute, one must follow the procedures outlined in La.R.S. 23:1310.3(F), which states:

F. (1) Any party challenging the constitutionality of any provision of this Chapter shall specially plead such an allegation in the original petition, an exception, written motion, or answer, which shall state with particularity the grounds for such an allegation.
(2) Within thirty days of the filing of any pleading raising the issue of unconstitutionality, the party making such an allegation must file a petition in a state district court of proper jurisdiction for purposes of adjudicating the claim of unconstitutionality. Said filing shall be given priority in hearing such claim not more than ten days from being presented to the district court.
(3) Failure to follow the procedures set forth in this Section shall bar any claim as to the unconstitutionality of any provision of this Chapter on appeal.

Mr. Guilbeau’s constitutional challenge was made in a motion for a new trial. Further, it is axiomatic that such a matter must first be pled with specificity before a trial court prior to consideration by an appellate court.

IV.

CONCLUSION

The penalty provision in the Louisiana workers’ compensation statute allowing for forfeiture of benefits if a claimant is proved to have made a false | ^statement, ■willfully, for the purpose of obtaining benefits must be strictly construed in favor of the claimant because of the beneficial purposes of the workers’ compensation statute. However, when a WCJ makes a finding of fact that a claimant has indeed met all of the requirements for forfeiture, an appellate court must review those findings of fact under the manifest error standard of review. The WCJ found that when Mr. Guilbeau directly stated, under oath, that he could not get up on roofs, and could not perform roofing duties he made a false statement, willfully, in order to obtain benefits under the workers’ compensation statute. Given the videotape of Mr. Guil-beau performing roofing duties up on a roof, in direct contradiction to his sworn statement, we affirm the judgment of the WCJ that Mr. Guilbeau was in violation of La.R.S. 23:1208(A) as of the date of that statement, and that he should suffer the forfeiture of any benefits which might accrue under the workers’ compensation statute from that point forward as required by La.R.S. 23:1208(E).

The socially constructive purpose of the statute requires that we affirm the prospective application of the penalty provisions from the date of the false, willful statement made to obtain benefits. It would be against the purpose of the statute to penalize a claimant retroactive to the date when benefits accrue. The jurisprudence governing the application and implementation of La.R.S. 23:1208 requires that violations yielding forfeiture must be proven by the one alleging fraud. Unless the one alleging fraud can prove that false, willful statements or representations made to obtain benefits were made when benefits first accrued, forfeiture will only occur prospectively from the date of proven violations.

Given that JWH and LUA cannot prove Mr. Guilbeau violated La.R.S. 23:1208 at the time his workers’ compensation benefits first accrued, the WCJ’s assessment of a penalty and attorney fees against them for late payment of initial benefits is also affirmed.

114Mr. Guilbeau is assessed with two-thirds of the cost of this appeal. JWH and LUA are assessed with one-third of the cost of this appeal.

AFFIRMED.

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

AMY, J.,

concurring in the result.

hi agree with the majority that the workers’ compensation judge’s determination that the employee violated La.R.S. 23:1208 is supported by the record and must, therefore, be affirmed. I also agree with the majority’s conclusion that the penalties and attorney’s fees awarded in this case were not forfeited due to the La.R.S. 23:1208 violation. However, I reach this latter conclusion by different reasoning than that expressed by the majority. In my view, the issue is resolved through reference to the wording of Paragraph (E) of that statute which states: “Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.” (Emphasis added.) I do not see that penalties and attorney’s fees are compensation benefits, as are indemnity and medical benefits. See St. Bernard Parish Police Jury v. Duplessis, 02-0632 (La.12/4/02), 831 So.2d 955. Rather than a benefit to which the employee is entitled due to his or her work-related injury, penalties and attorney’s fees are a sanction relating to the conduct of the employer. See Leonard v. James Indus. Constr., 03-0040 (La.App. 1 Cir. 5/14/04), 879 So.2d 724, writ denied, 04-1447 (La.9/24/04), 882 So.2d 1139. Under the present circumstances, since the penalties and attorney’s fees were due for the employer’s action/inaction prior to the operative moment of the forfeiture and at a time when the employee was otherwise entitled to compensation benefits under the |2chapter, the workers’ compensation court correctly concluded that they were owed.

For these reasons, I concur in the result reached by the majority on the issue of forfeiture of penalties and attorney’s fees.


source: Caselaw Access Project

author: SULLIVAN, Judge.

license: Public Domain

text:
    Diana BOLLICH v. FAMILY DOLLAR, INC. and Travelers Insurance Co.
    No. 05-1459.
    Court of Appeal of Louisiana, Third Circuit.
    June 21, 2006.

      Pierre M. Legrand, J. Michael Nash, Ungarino & Eckert, L.L.C., Metairie, Louisiana, for Defendants/Appellees, Family Dollar, Inc., Travelers Insurance Company.
    Gregory P. Marceaux, Marceaux Law Firm, Lake Charles, Louisiana, for Plaintiff/Appellant, Diana Bollieh.
    Court composed of MICHAEL G. SULLIVAN, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   SULLIVAN, Judge.

LThe workers’ compensation judge (WCJ) dismissed Diana Bollich’s claim after finding that Mrs. Bollieh failed to prove that her head and neck injuries were caused by a work-related accident for which she initially reported only an injury to her ribs. For the following reasons, we affirm.

Discussion of the Record

Mrs. Bollieh worked as a manager for Family Dollar Store (Family Dollar). On August 17, 2002, she was unloading boxes of groceries stacked on a dolly when some of the boxes fell, with one striking her in the rib cage and another scraping her left leg. She was initially treated in the emergency room on August 23, 2002, where she was given a rib belt and pain medication for complaints of chest pain caused by a box falling on her at work. She returned to the emergency room the next day, where she was diagnosed with a fracture of the seventh left rib. Thereafter, she returned to the emergency room several times in October of 2002, with chief complaints of headache pain radiating from the base of the skull, or top of the neck, to the head. At these visits, she did not relate her symptoms to a recent trauma, but rather she reported a history of hypertension and chronic headaches, and she referenced an automobile accident that occurred several years ago.

During the time of these emergency room visits, she was also seen by her family physician, Dr. Roger Grimball, for headaches, neck pain radiating upward, and nausea. Dr. Grimball ordered an MRI of the head, which was normal, and a CT scan of the neck, which revealed a markedly enlarged thyroid gland and mild bulging with no spinal stenosis at C4-5, C5-6, and C6-7.

Mrs. Bollich stopped working for Family Dollar on October 7, 2002, while still under Dr. Grimball’s care. On November 12, 2002, she filed a claim with Family Dollar’s disability insurer in which she stated that her disability due to neck and headache problems was not work-related and that she did not intend to file a workers’ compensation claim. She received disability benefits on this policy for approximately one and a half years. In the meantime, Family Dollar’s workers’ compensation carrier considered her claim to be a medical-only file, which was automatically closed after ninety days when no further medical bills were submitted.

At Dr. Grimball’s suggestion, Mrs. Bol-lich was seen by Dr. R.C. Odenheimer, a neurologist, on three occasions, from November 14, 2002 through January 30, 2003, for complaints of headaches, pain in the upper left cervical spine, left neck pain radiating to the shoulder, tremor, increased stress, and “significant emotional liability.” Among Dr. Odenheimer’s recommendations were psychiatric and orthopedic referrals. Dr. Odenheimer’s records do not contain an accident history, and he expresses no opinion as to the causation of Mrs. Bollich’s symptoms.

On February 17, 2003, Mrs. Bollich underwent a cervical MRI that revealed protruding disc material at three levels with impingement, but not compression of the spinal cord, and left foraminal stenosis due to protruding disc material at C5-6. These results are in contrast to a previous MRI that Mrs. Bollich underwent two years before the accident, on September 27, 2000, in which noncompressive disc displacement at C5-6 was noted, but with “[n]o evidence for HNP [herniated nucleus pulposus] within the cervical spine.” Based upon the February 17, 2003 MRI, Dr. Michael Molleston, a neurosurgeon, was of the opinion that Mrs. Bollich needed surgery for ruptured discs at C4-5 and C5-6, which he believed were sustained in a|sfall at work in which she “was struck by a number of boxes that were falling, and they basically pushed her down across some other boxes.” Dr. Molleston scheduled that surgery for March 13, 2003, but, according to Mrs. Bollich, it had to be cancelled because of an accident in the family.

Mrs. Bollich was also seen by Dr. Dale Bernauer, an orthopedic surgeon, who believed that the February 17, 2003 MRI was positive for a disc herniation at C5-6; however, he also believed that her thyroid problems needed to be addressed before he would consider surgery for her disc problem. Dr. Bernauer related the herniated disc to the accident history given to him in which he understood that Mrs. Bol-lich fell, hitting her head, and having boxes fall on her. Dr. Bernauer acknowledged that the most recent MRI, taken on April 8, 2004, showed minimal disc protrusions at C4-5 and C6-7, with a broad based right paracentral protrusion at C5-6, without the left-sided protrusion that had been seen before. He believed that an EMG was needed before he could determine if surgery was necessary. At her last visit on March 23, 2005, Mrs. Bollich still complained of neck pain, left arm pain, and numbness of the left hand. Dr. Bernauer considered her to be temporarily totally disabled until an EMG could be performed to determine if she needed surgery.

Mrs. Bollich filed this disputed claim on July 30, 2003, after Family Dollar’s workers’ compensation carrier denied her claim for a neck injury that was not reported until eleven months after the accident. At trial, Mrs. Bollich testified that she fell backwards and “jarred” her body when four to five boxes fell onto her, although she admitted that the employer’s accident form states that only one box fell on her rib cage and that one box scraped her left leg. She testified that her neck pain began two to three weeks after the accident, but that she understood Dr. Grimball |4thought she may be having migraine headaches. She acknowledged that she did not tell the emergency room doctors about neck pain until her visit of October 29, 2002, over eight weeks after the accident. (Her first complaint of neck pain radiating upward to Dr. Grimball was on October 16, 2002, but those records make no reference to causation.) She also testified that she had a history of headaches from high blood pressure and that she told her doctors she was under a great deal of family stress caused by the death of her mother and her husband’s heart attack.

After taking the matter under advisement, the WCJ ruled in favor of Family Dollar, finding that Mrs. Bollich failed to prove that she suffered head and neck injuries resulting from her August 17, 2002 work accident. On appeal, Mrs. Bollich argues that the WCJ committed legal error in failing to apply a presumption of causation, thereby denying her an award of indemnity benefits and medical expenses. She also argues that the WCJ erred in failing to award penalties and attorney fees.

Opinion

An appellate court’s review of factual findings in a workers’ compensation case is governed by the manifest error or clearly wrong standard of review. Smith v. La. Dep’t of Corr., 93-1305 (La.2/28/94), 633 So.2d 129; Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733. Further, “[t]he issue of causation is an issue of fact.” Langley v. Larco Envtl. Servs., Inc., 01-304, p. 8 (La.App. 3 Cir. 10/3/01), 798 So.2d 1097, 1102. In order to reverse a factual determination, the appellate court (1) must find that a reasonable factual basis does not exist in the record for the finding and (2) must further determine that the finding is clearly wrong. Stobart v. State through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993).

|BIn a workers’ compensation case, the claimant must establish a causal link between the work-related accident and the claimed disability. Walton v. Normandy Village Homes Ass’n, Inc., 475 So.2d 320 (La.1985). To aid the employee in meeting this burden:

[t]he employee’s workplace accident is presumed to have caused or aggravated her disability when she proves that: (1) before the accident, she had not manifested disabling symptoms; (2) commencing with the accident, the disabling symptoms appeared; and (3) there is medical or circumstantial evidence indicating a reasonable possibility of causal connection between the accident and activation of the disabling condition. Once an employee establishes the presumption of a casual relationship, the employer must produce evidence and persuade the trier of fact that it is more probable than not that the injury was not caused by the work accident.

Tate v. Cabot Corp., 01-1652, p. 6 (La.App. 3 Cir. 7/3/02), 824 So.2d 456, 461, writ denied, 02-2150 (La.11/22/02), 829 So.2d 1044 (quoting Rideaux v. Franklin Nursing Home, 95-240, p. 5 (La.App. 3 Cir. 11/22/95), 664 So.2d 750, 755, writ denied, 95-3093 (La.2/16/96), 667 So.2d 1058 (citations omitted)). However, “[i]f the evidence leaves the probabilities of causation equally balanced, the claimant has failed to carry her burden of proof.” Courville v. Premier Abrasive Prods., 01-840, p. 3 (La. App. 3 Cir. 12/12/01), 801 So.2d 598, 601. In the present case, the record reveals that Mrs. Bollich had a history of neck pain and headaches before this accident and that her hypertension and thyroid problems predated the accident as well. In her emergency room visits in October of 2002, Mrs. Bollich did not relate her symptoms to a recent, work-related trauma, but instead reported her history of hypertension, chronic headaches, and an automobile accident that occurred many years ago. In November of 2002, she applied for disability payments, stating that her neck and headache symptoms were not work related.

| fiTwo of Mrs. Bolllich’s treating physicians, Dr. Molleston and Dr. Bernauer, did relate her neck injury to an accident of August 17, 2002; however, their description of the accident varies with that of the employer’s accident report and Mrs. Bol-lich’s testimony at trial. Dr. Molleston’s records reflect a history of falling and being struck by several boxes, but Mrs. Bollich testified that only one box hit her rib cage and the accident report does not mention a fall. Dr. Bernauer stated that his opinion as to causation was based upon an accident history in “which she fell hitting her head and having boxes fall on her.” At trial, Mrs. Bollich denied that she told Dr. Bernauer that she hit her head, and the medical records make no reference to a head trauma.

On the record before us, we cannot conclude that the WCJ committed a legal error in not applying the presumption of causation, given Mrs. Bollich’s pre-accident medical history, the lack of corroboration of a trauma-induced neck injury in the medical records most recent to the accident, and the various discrepancies of the accident history that appear in the later records. Accordingly, we find no manifest error in the WCJ’s failure to award indemnity and medical benefits. Mrs. Bollich’s claim for penalties and attorney fees is likewise denied.

Decree

For the above reasons, the judgment of the Office of Workers’ Compensation is affirmed. Costs of this appeal are assessed to plaintiff-appellant, Diana Bollich.

AFFIRMED.

      . The date of the accident appears in the record as either August 17, 2002 or August 19, 2002. We have chosen to use the former date, which appears in the judgment of the Office of Workers' Compensation.


author: COOKS, Judge. PETERS, J.,

text:
    Briggitte Yvette ARDOIN v. Brian Craig ARDOIN.
    No. 2006-245.
    Court of Appeal of Louisiana, Third Circuit.
    June 28, 2006.

      Shelley A. DeVille, Yille Platte, LA, for PlaintiffAppellee, Briggitte Yvette Ardoin.
    Alisa Ardoin Gothreaux, Lafayette, LA, for Defendant/Appellant, Brian Craig Ar-doin.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and BILLY H. EZELL, Judges.
   COOKS, Judge.

11This appeal involves the trial court’s award of $250.00 to the ex-wife in permanent spousal support. Finding no abuse of discretion in the trial court’s award, we affirm.

FACTS AND PROCEDURAL HISTORY

Briggitte Yvette Ardoin and Brian Craig Ardoin were married on March 10, 1989. One child, Jenna Paige Ardoin, was born during the marriage. The marriage was terminated by a judgment of divorce rendered in the district court on March 4, 2005. Prior to the judgment of divorce, Briggitte and Brian entered into a consent judgment in November 2004. The consent judgment provided for joint custody of the minor child, with Briggitte designated domiciliary parent and Brian granted visitation on alternating weekends and certain specified periods during the summer. Brian was to provide Briggitte at least seventy-two hours advance notice if he was unable to exercise his visitation privileges.

Brian also was ordered in the consent judgment to pay Briggitte $685.15 for child support and an additional $234.55 per month in temporary spousal support. Further, Brian consented to pay for and attend two counseling sessions with a licensed professional counselor. The parties were to maintain health insurance on the minor child, with Brian responsible for seventy-one percent and Briggitte twenty-nine percent of the cost of insurance and non-covered medical expenses. The consent judgment also ordered the parties to refrain from speaking derogatorily about the other in the presence of the minor child.

The parties also agreed to a community property partition. In the partition, Brig-gitte received the community home, Chrysler Sebring automobile and household furnishings. Briggitte assumed the debt for the house, car, community loans and ^credit cards. Brian received the Chevrolet pickup, a boat, a four-wheeler, a hunting collection and a computer. Brian assumed the note on the boat, four-wheeler, truck and computer.

Briggitte subsequently filed a motion before the district court seeking an increase in child support, permanent spousal support, and that Brian be held in contempt for not complying with various provisions of the consent judgment.

After a hearing on the motion, the trial court found both parties received increases in their monthly compensation since the consent judgment. Calculating the increases under the guidelines for Louisiana child support, the trial court ordered Brian to pay $705.00 a month in child support. The trial court also found Briggitte “free of significant fault” in causing the breakup of the marriage and awarded her $250.00 per month as permanent spousal support. The trial court did not find Brian in contempt of the consent judgment but did place him on notice that the court would “not tolerate non compliance with the provisions of the Consent or Stipulated Judgment.” Brian appealed the portion of the trial court’s judgment awarding Briggitte permanent spousal support.

ANALYSIS

The award of alimony after divorce is governed by La.Civ.Code articles 111 and 112, which provide in pertinent part:

Art. 111. Spousal support; authority of court
In a proceeding for divorce or thereafter, the court may award interim periodic support to a party or may award final periodic support to a party free from fault prior to the filing of a proceeding to terminate the marriage, based on the needs of that party and the ability of the other party to pay, in accordance with the following Articles.
Art. 112. Determination of final periodic support
A. The court must consider all relevant factors in determining the | ^entitlement, amount, and duration of final support. Those factors may include:
(1) The needs of the parties.
(2) The income and means of the parties, including the liquidity of such means.
(3) The financial obligations of the parties.
(4) The earning capacity of the parties.
(5) The effect of custody of children upon a party’s earning capacity.
(6) The time necessary for the claimant to acquire appropriate education, training, or employment.
(7) The health and age of the parties.
(8) The duration of the marriage.
(9) The tax consequences to either or both parties.
B. The sum awarded under this Article shall not exceed one-third of the obligor’s net income.

The initial consideration in determining if a claimant is entitled to permanent spousal support is whether he or she is free from fault in causing the breakup of the marriage. La.Civ.Code art. 111. Brian does not argue in his brief that the trial court erred in finding Briggitte free from fault; therefore that issue is not before us. Once the lack of fault is established, the basic tests for the amount of spousal support are the needs of that spouse and the ability of the other spouse to pay. Knowles v. Knowles, 02-331 (La.App. 3 Cir. 10/2/02), 827 So.2d 642.

In his brief, Brian argues that permanent spousal support is “simply not warranted by the numbers.” He contends the evidence produced at the hearing indicates Briggitte makes an income, when combined with the child support, that is “more than sufficient to meet both she [sic] and the child’s needs.” The evidence submitted at trial does not support Brian’s contention.

14Briggitte’s W-2 statement was entered into evidence, which showed she earned a net pay of $1,508.98 per month. Briggitte testified and produced monthly statements that established she incurred $1,755.68 in monthly expenses. This results in a deficit of $246.65 between Briggitte’s earnings and expenses. This evidence is undoubtedly what the trial court relied upon in rendering its award of $250.00 in permanent spousal support.

The trial court also noted in its reasons for judgment that Brian received an increase in pay. Although Brian argues in brief that he will only gross $49,000.00 in 2005, that figure is not supported by the payroll records submitted into evidence. For the first three months of 2005, the payroll records from Brian’s employer demonstrate that he earned $15,436.00 in gross income. As Brian testified he expected he would continue to make the same amount of money for the remainder of 2005, this projects to a yearly salary of $61,744.00. After his child support obligation is deducted, Brian’s monthly net income is in excess of $3,000.00. The record indicates Brian’s monthly expenses amount to approximately $2,500.00, which includes the payment of notes on a boat and a four-wheeler. The record does not support Brian’s argument that he has greater expenses than income.

We also note the parties agreed in the consent judgment that Briggitte was entitled to $234.55 in temporary spousal support to satisfy her basic household expenses and monthly recurring debts. Now on appeal, Brian asserts Briggitte is not in need of any spousal support. However, Brian has not alleged any change in circumstances since the consent judgment that would indicate Briggitte is no longer in need of spousal support other than his insistence that his child support payment should be used as a dollar-for-dollar setoff against Briggitte’s entitlement to spousal support. The trial judge obviously refused to employ Brian’s rigid setoff formula.

| s“The trial court is vested with great discretion in making alimony determinations, and its judgment will not be disturbed absent a manifest abuse of discretion.” Goodnight v. Goodnight, 98-1892 p. 7 (La.App. 3 Cir. 5/5/99), 735 So.2d 809, 814. We find nothing in the record to indicate the trial court’s award of $250.00 per month in permanent alimony was an abuse of its discretion.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to appellant, Brian Craig Ardoin.

AFFIRMED.

PETERS, J., concurring in part and dissenting in part and assigns written reasons.

PETERS, J.,

concurring in part and dissenting in part.

| ! While I concur in the majority’s affirmation of the trial court’s award of permanent spousal support, I respectfully disagree with the majority’s affirmation of the amount of the award, $250.00, to Mrs. Ardoin. My review of the record causes me to conclude that Mr. Ardoin’s request for a decrease has merit.

As pointed out by the majority, Mrs. Ardoin’s net monthly income from her employment was found by the trial court to be $1,508.98, and she testified to total monthly expenses of $1,755.63. Were that the end of the inquiry, I would agree that the trial court award should be upheld. However, the trial court also awarded Mrs. Ardoin $705.00 per month as support for the minor child born of the marriage. Thus, the combined trial court awards gave Mrs. Ardoin $2,213.98 in total available monthly income for her support and the support of her child.

The child support award was decided strictly on La.R.S. 9:315.19 and, based on the table found in that statute, represents seventy-one percent of the monthly cost of raising the child. Absent extraordinary expenses, use of the table to set child support requires nothing more than evidence of the combined adjusted monthly gross income of the parents. That is to say, issues such as cost of housing, clothing, transportation, and education are simply incorporated into the calculations which comprise the table. The problem I find with the award to Mrs. Ardoin is that the |2expenses she presented to the trial court in support of the permanent spousal support award overlap with the expenses already incorporated into the child support award. These expenses include specifically maintaining a home for the child ($546.65, which includes house note, telephone, water, and electricity), transportation costs ($611.16, which includes the car note, insurance, and gas), and health insurance for the child ($123.07).

The majority places significant emphasis on the fact that the parties had previously entered into a consent decree wherein Mr. Ardoin agreed to pay $234.55 in interim spousal support. However, the award at issue is not interim spousal support, but permanent spousal support. The trial court may award interim spousal support “based on the needs of that party, the ability of the other party to pay, and the standard of living of the parties during the marriage.” La.Civ.Code art. 113 (emphasis added). The “standard of living” criterion does not apply to permanent spousal support. Rather, permanent spousal support is strictly “based on the needs of that party and the ability of the other party to pay.” La.Civ.Code art. 111.

The trial court award allows Mrs. Ar-doin double recovery and provides for an award that exceeds her “needs.” Thus, in my opinion, the trial court abused its discretion in awarding Mrs. Ardoin $250.00 per month. To prevent this double recovery, I believe we must consider and deduct from Mrs. Ardoin’s total expenses the proportionate cost of those expenses covered by the child support award. Neither litigant made any effort to do so. However, the complete record is before us, and I would reduce the award to correspond with the evidence presented.

Even assuming that housing and transportation expenses were divided such that seventy-five percent of the amount paid monthly in these categories was credited to |sMrs. Ardoin, her share of those expenses would be $952.30 [ (0.75 x $1,157.81) + (0.29 x 0.25 x 1,157.81)]. That would reduce her direct personal expenses to $1,550.12. Additionally, the daughter’s health insurance is definitely factored into the child support. Thus, she is responsible for only $35.69 of that amount (0.29 x 123.07). This would reduce her personal expenses to $1,514.43, to be balanced against her net income of $1,508.98. The record is not clear whether the other basic monthly expenses for items such as groceries and clothing include costs for the child, but giving Mrs. Ardoin the benefit of the doubt, her personal expenses barely exceed her monthly income.

Given the record before me, I would find that any spousal support award exceeding $75.00 per month would be an abuse of discretion. This does not leave Mrs. Ar-doin without a remedy when the child reaches the age of majority, as she can avail herself of the provisions of La.Civ. Code art. 114 and seek an increase based on the material change of circumstances.

I would affirm the judgment awarding spousal support, but would amend the award by reducing it to $75.00 month.


author: PETERS, J.

text:
    LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT v. Shelby J. FRANCIS and Joseph E. Walker, III.
    No. 2006-0235.
    Court of Appeal of Louisiana, Third Circuit.
    June 28, 2006.
    Michael P. Corry, Alicia M. Jacob, Bri-ney & Foret, Lafayette, LA, for Plaintiff/Appellant, Lafayette City-Parish Consolidated Government.
    Gregory L. Landry, Acadiana Legal Service Corporation, Lafayette, LA, for Defendants/Appellees, Shelby J. Francis and Joseph E. Walker, III.

      Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and BILLY H. EZELL, Judges.
   PETERS, J.

_[1The Lafayette City-Parish Consolidated Government (LCCG) appeals a judgment of the Fifteenth Judicial District Court affirming a decision of the Lafayette City-Parish Civil Service Board (Board) which reversed the LCCG’s decision to terminate the employment of two LCCG employees, Shelby J. Francis and Joseph E. Walker, III. For the following reasons, we affirm the trial court decision in all respects.

DISCUSSION OF THE RECORD

Most of the facts giving rise to this litigation are not in dispute and were established at a hearing held by the Board in Lafayette, Louisiana, on July 25, 2005. At that hearing, only three members of the five-member Board were present.

The evidence established that Francis and Walker were long-time employees of LCCG, having worked for seventeen and sixteen and one-half years respectively. On May 19, 2005, the two men took scrap aluminum wire from the ground adjacent to a trash dumpster located on LCCG property, loaded it into an LCCG vehicle assigned to Francis, and delivered it to Walker’s residence. At the time they took the wire, they were on duty with LCCG and were wearing LCCG uniforms.

This action was reported to LCCG officials, who confronted the two men with accusations of theft of LCCG property on May 23, 2005, at a predetermination hearing. During that hearing, the two men admitted taking the wire. In fact, Francis admitted that the May 19 incident was the fourth time he had taken wire from LCCG and delivered it to Walker’s property. The panel which presided at the predetermination hearing recommended that the employment of the two men be terminated. The next day, that recommendation was effected through a letter to the employees, notifying them of their employment termination.

12At the July 25, 2005 hearing before the Board, both men acknowledged their involvement in taking the wire and testified that they were aware that LCCG did not deposit the wire at the dumpster as trash but sold the wire to a salvage yard which picked it up from the dumpster. Francis acknowledged his involvement in the other three thefts and contradicted Walker’s assertion at the predisposition hearing that he [Walker] had been involved only in the May 19, 2005 theft. Walker acknowledged in his testimony before the Board that he had not been truthful in his prior statements and that he had been involved with Francis on at least one other occasion in taking the wire. Both men expressed remorse for their involvement in the theft activity.

Upon completion of the evidence, one member of the Board moved to have the men disciplined by loss of pay through the date of the hearing and then be reinstated. However, this motion died for lack of a second. The Board then went into executive session. When the members returned from the executive session, a motion was made that LCCG’s action in terminating the employment of the two men be upheld. This motion passed by a vote of two to one. The same Board member who had made the motion that had failed for lack of a second voted against the motion. The Board’s attorney then made the following comment:

Mr. Chairman, because of the shortage of members here tonight, the law is that it requires the majority of the Board to take an action affirming a disciplinary action, so two to one vote would not affirm the termination. The vote tonight in order to take any discipline would need to be unanimous because there’s only three of you here.

A new motion was then made to suspend the men without pay through August 31, 2005. This motion passed unanimously, and the meeting was adjourned.

LCCG then filed suit against Francis and Walker, seeking to have the Board’s decision reversed. In that suit, LCCG asserted that the Board erred in setting aside [3its majority decision to uphold the employment termination on the advice of its attorney and in reconsidering the issue.

The matter came before the trial court for hearing on December 12, 2005. After listening to the arguments of counsel, the trial court upheld the action of the Board in oral reasons for judgment. LCCG then perfected this appeal, asserting in its sole assignment of error that the trial court erred when it did not reverse the Board’s decision and uphold LCCG’s action in terminating the employment of Francis and Walker. However, within that one assignment of error, LCCG raises two arguments:

1. Because a majority of Board members present initially upheld the dismissal of the two employees by a two-to-one vote, the final unanimous action of the Board should not be considered.
2. Because LCCG acted with just cause and in a reasonable manner within its rules, procedures and policies in dismissing the two employees, the Board erred in reversing that action, and the trial court erred in affirming the Board’s action.

OPINION

Issue Number One

In seeking reversal of the trial court judgment, LCCG first argues that the two-to-one decision of the Board to uphold LCCG’s disciplinary action was a final decision and was changed only because of erroneous legal advice. Thus, it suggests that we simply ignore the unanimous vote to modify the discipline it imposed.

In arguing this point, LCCG directs this court’s attention to Section 1.6, Rule II, of the Lafayette City-Parish Civil Service Rules and Regulations (Civil Service Rules), which provides that “[t]hree members of the Board shall constitute a quorum for the transaction of business.” At the same time, LCCG acknowledges that the Civil Service Rules do not address the issue concerning the number of votes required for action when only three of the five members attend a Board meeting. Instead, |4LCCG directs our attention to La.R.S. 33:2536(M) (which appears to provide that the vote of a majority of a quorum present is sufficient to transact business and make decisions in meetings of local fire and police civil service boards created by that statute) and to two judicial opinions upholding majority votes of public entities where the full contingent of members were not present. See Johnson v. La. State Univ., 418 So.2d 667 (La.App. 1 Cir.1982); Alonzo v. La. Dep’t of Highways, 268 So.2d 52 (La.App. 1 Cir.), writ refused, 263 La. 990, 270 So.2d 124 (1972). Francis and Walker argue on appeal that there is no evidence that the Board has not adopted rules of procedure different from those public entities cited by LCCG. Therefore, there is no evidence that the Board attorney’s advice was wrong.

We need not address whether the Board attorney’s advice was incorrect. The hearing record reflects that LCCG’s attorney was present from the time the Board returned from executive session until it adjourned. During that time, the initial two-to-one motion was acted upon, the Board’s attorney commented on the correctness of that vote, the Board members present then discussed the specifics of the suspension that might be imposed, and the Board voted unanimously to effect the suspension through August 31, 2005. LCCG did not object to the advice or to the second vote. Generally, a party’s failure to object to a procedural irregularity is considered to constitute a waiver to object to the irregularity on appeal. Gagliano v. Amax Metals Recovery, Inc., 96-1751, 96-1752 (La.App. 4 Cir. 5/7/97), 693 So.2d 889, writ denied, 97-1738 (La.10/13/97), 703 So.2d 619. Thus, LCCG cannot now claim error in that regard.

Issue Number Two

IsLCCG argues that, even if this court finds that there was no procedural defect in the voting process that rendered the decision of the Board invalid, we should still reverse the trial court because it acted with just cause; in a reasonable manner; and within its rules, procedures, and policies in terminating the employment of Francis and Walker. Thus, LCCG contends that the trial court erred in not reversing the Board’s modification of the discipline imposed.

The Lafayette Consolidated Government Policies and Procedures Manual (Policies Manual) establishes the standards of service expected of any LCCG employee. While stealing in general would certainly be an implied condition of any employment relationship, stealing LCCG property is specifically prohibited in Section 261-2.6 of the Policies Manual. Additionally, Section 1.1, Rule IX, Civil Service Rules provides that LCCG has the obligation of maintaining standards of service within the employment relationship and that LCCG “shall take appropriate corrective and progressive actions to maintain standards of service by employees subject to [the civil service] rules.” That same section states that, in maintaining standards of service, the actions available to LCCG

[M]ay include:

A. Termination of employment
B. Demotion to a position the subject employee is qualified to perform
C. Suspension without pay not to exceed 30 days in a calendar year
D. Temporary reduction in pay of 5% not to exceed five (5) pay periods
E. Written Reprimand.

Id. (emphasis added).

The permissive language in this Section, i.e., the use of the word “may,” makes it clear that LCCG is not limited to these rather severe penalties and can pursue a less punitive course of action against the employee or one that is not punitive at all, such Las counseling. However, the Civil Service Rules further provide that the reasons for applying any one of these more drastic disciplinary actions include “Mom-mission of an act or acts detrimental to the public interest or to the Classified Service” and “[c]onduct unbecoming of an employee of the classified service that would bring discredit, public embarrassment, or impair the efficient operation of the Lafayette Consolidated Government.” Section 2(C) and (P), Rule IX, Civil Service Rules. Certainly, stealing would be encompassed within these reasons.

Section 4.1, Rule II, Civil Service Rules provides that, when an employee seeks review of a disciplinary decision by LCCG, the Board’s obligation is to “determine whether [LCCG] had just cause and acted in good faith in taking the action.” More specifically,

The policy of the Board with regard to disciplinary appeals shall be as follows:

A. In reviewing disciplinary actions, the Board shall have the duty and authority to determine whether the Appointing Authority acted with just cause and within its rules, procedures, and policies in taking disciplinary action for infractions allegedly committed by an employee, and, if so, whether the discipline imposed is commensurate with the infraction.
B. The Board shall not act to modify or set aside a decision of the Appointing Authority to impose discipline against an employee where the Appointing Authority has acted in a reasonable manner in taking such ■ action, even if the Board feels the Appointing Authority could have or should have pursued a different course of action against such employee.
C. For purposes of this Rule, “just cause” shall be defined as a rational basis for the disciplinary action taken by the Appointing Authority, based upon the information available to the Appointing Authority at the time that such discipline was imposed. Just cause shall be deemed to have been established when the Appointing Authority produces evidence demonstrating the employee’s commission of the alleged infractions and demonstrating that the commission of such infractions bears a real and substantial 17relationship to the efficient operation of the affected department of the Lafayette Consolidated Government.

Section 4.14, Rule II, Civil Service Rules.

As we interpret this policy, the Board must address two issues in its review of LCCG’s disciplinary action. The questions of just cause; good faith; and compliance with rules, procedures, and policies relate to the taking of the disciplinary action itself, not the punishment. It is only when the Board determines that the disciplinary action has been taken within these parameters that it should turn to the second issue — -whether the discipline imposed was commensurate with the infraction. We find that Section 4.15, Rule II, Civil Service Rules supports this interpretation. That section provides:

A. In accordance with the policies set forth in Section 4.14 herein above, the Board shall take one of the following actions in rendering decisions on appeals:
1. Determine that the action of the Appointing Authority was taken for just cause and affirm the action.
2. Modify the disciplinary action taken by the Appointing Authority and ■ impose a greater or lesser disciplinary action as deemed appropriate under the circumstances.
3. Set aside the action of the Appointing Authority and order it to restore the employee to all benefits and rights lost as a result of the action.

In this instance, the Board clearly concluded that LCCG acted with just cause; in a reasonable manner; and within its rules, procedures, and policies in instituting disciplinary action against Francis and Walker. However, in reaching the second issue, the Board ultimately concluded that the discipline imposed was not commensurate with the offense charged, although it did not initially reach that conclusion.

IsThe member of the Board who made the initial motion which died for lack of a second clearly found the punishment to be too severe. In making his motion, he stated the following:

[The decision is] cut and clear to me. First of all, I applaud the City for adopting the zero tolerance policy, but what we need to take into consideration is that zero tolerance is not absolute. It lends itself to litigation, and in this case, it’s very clear that these two gentlemen have been valued employees of the City for 16, 17 years. This is their first offense. They stole junk, scrap. They admitted it, they were remorseful, they apologized. I think that the termination is too harsh of a punishment for that offense.

In a later dialogue with another member of the Board, he further stated:

I don’t even consider [the employees’ activity] theft. I just consider that a mistake in judgment. Don’t get me wrong, I like zero tolerance, I like the idea that you have it in place and that you pursue it, but it does open itself to litigation, and when there’s mitigating circumstances, reconsideration can be given. In this case, I think reconsideration should be given.

Thus, this member did not find LCCG’s action to be unreasonable as a general rule, but found that the discipline imposed in this particular situation was not commensurate with the infraction, given the work history of Francis and Walker, the relatively insignificant value of the property stolen, and their post-incident remorseful attitude. The other two members obviously initially supported LCCG’s decision, but changed their vote after being informed by their legal counsel that the three-member Board had to reach a unanimous decision. Thus, it appears that they changed their vote for the sole purpose of reaching a compromise decision. While we might have reached a different conclusion, we do not find that the Board abused its discretion in fulfilling its duty under the Civil Service Rules to determine “whether the discipline imposed [was] commensurate with the infraction.” Section 4.14(A), Rule II, Civil Service Rules.

^DISPOSITION

For the foregoing reasons, we affirm the trial court judgment upholding the decision of the Lafayette City-Parish Civil Service Board. We assess all costs of this appeal to the Lafayette City-Parish Consolidated Government to the extent allowed by law.

AFFIRMED.


author: MARION F. EDWARDS, Judge. DALEY, J.,

text:
    Sharon A. GERACI v. Thomas J. BYRNE, Jr. and Financial Indemnity Company.
    No. 06-CA-58.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 28, 2006.

      George M. Cotton, Baton Rouge, Louisiana, for Plaintiff/Appellee.
    James L. Donovan, Jr., Donovan & Lawler, Metairie, Louisiana, for Defendant/Appellant.

      Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   MARION F. EDWARDS, Judge.

| JJefendant/appellant, Allstate Insurance Company (“Allstate”), appeals from a judgment of the Twenty-Fourth Judicial District Court in favor of the plaintiff/ap-pellee, Sharon A. Geraci (“Geraci”), awarding her $5,000 in damages, $5,000 for arbitrary and capricious failure to pay a claim, and $14,063.37 in attorney’s fees. On appeal, Allstate argues that the court erred in finding it arbitrary and capricious in ruling that Geraci was entitled to attorney’s fees, and, in the alternative, that such fees were excessive.

Geraci filed a Petition For Damages against Thomas J. Byrne Jr. (“Byrne”) and Financial Insurance Company, alleging injuries as a result of a February 25, 2002 automobile accident that occurred when she was struck from the rear by a vehicle driven by Byrne. On May 12, 2003, a supplemental and amending petition was filed, adding Allstate as Geraci’s uninsured motorist (UM) insurer. Following discovery, Geraci filed a second, amending petition on May 5, 2005, alleging that Rshe notified Allstate of her injury on February 27, 2002 and that her attorney notified the insurer that she claimed UM benefits. Geraci further alleged that the only offer made by Allstate was to reimburse her for court costs and that neither a settlement nor any costs have been tendered. Consequently, Geraci claimed that Allstate was arbitrary and capricious, and she claimed penalties and attorney’s fees.

Geraci settled her claims with Byrne and his insurer, expressly reserving her right to proceed against Allstate.

At trial, Geraci testified that, after the accident in February 2002, she went to the emergency room at Ochsner Hospital for treatment. Because of headaches suffered following the accident, she consulted Dr. Strub, a neurologist, who gave her pain medication and a muscle relaxer. In March 2002, she visited Dr. Walter Brent for injuries and pain in her neck, back, and shoulders. Dr. Brent recommended physical therapy, which she was not able to attend regularly because of her job. It was about a year before she could resume her normal activities. She had a slip and fall in April of 2002 but did not injure herself severely. Geraci had previously been treated for migraine headaches and depression. She saw her gynecologist in July for “female problems” and depression. In August 2002, someone backed into her car in a parking lot, and she was shaken up and injured.

Dr. Walter Brent, qualified as an expert in orthopedic medicine, testified that Gera-ci consulted him following the accident and that she had objective signs of cervical and lumbar injury. The initial visit was on March 13, 2002. He ordered physical therapy, rest, and medications. She also received a cortisone injection. In April, Geraci reported she had fallen and injured her hand, but Dr. Brent did not feel that this had anything to do with the exacerbation of the pain in Geraci’s neck. At that time, Geraci continued to have neck pain and tense muscles, although the [¿tenseness was reduced. She had pain but a good range of motion. In November 2002, she visited again after having a slip and fall accident at work. Because Geraci discontinued her physical therapy in July 2002, Dr. Brent assumed that the injury from the accident had been resolved by that point.

Deborah Skorlich, a claims adjuster for Allstate, testified that, after ascertaining whether coverage is proper, she evaluates a claim after looking at the liability aspects, then at the damages. After an adjuster evaluates it with a recommendation, the claim goes to an evaluation consultant, who reviews it and makes a recommendation. In the present case, the consultant agreed with Skorlich’s determination. In January 2005, Skorlich evaluated the claim. It was her opinion that the $10,000 amount received by Geraci from the tort-feasor was sufficient compensation for her injuries, although Allstate did make an offer for “cost of defense.” She had all the information, including medical records from Ochsner Hospital, when she made the evaluation. Skorlich looked at the police report, which reflected no injury was reported at the scene and that there was minor damage to Geraci’s vehicle. Geraci had gone to the emergency room, had treatment, and received physical therapy. Therapy was “a little sporadic” in the month of May when she made only one visit. The last therapy treatment was July 15, 2002, before a subsequent accident in which Geraci sustained property damage and injury. In November 2002, Geraci had a slip and fall and more therapy. Skorlich evaluated the subject damage as being a cervical soft-tissue injury of five months duration. In evaluating claims, Skorlich testified that she must take each person as you find them relative to their condition, type of treatment received and recommended, and any subsequent injuries. She does not look at case law when evaluating soft-tissue injuries. Dr. Brent’s testimony did not change her opinion. According to her testimony, Geraci had $4,055.50 in medical bills at the time of 1 strial, but she did not consider any medicals beyond July 15, 2002 because of the subsequent accident. The $10,000 amount that Geraci received from the tortfeasor was “a little bit higher” than Skorlich would have evaluated it.

Insofar as the claim for time lost at work, Skorlich reviewed the records, which did not show that Geraci took any vacation time or sick leave but, rather, that she received regular pay. Skorlich believed that the first notice of the accident given Allstate was in July 2003 when the lawsuit was filed, and she was unaware of any prior notice. By January 2005, when Allstate filed its answer to the petition, Skor-lich agreed that Geraci was not at fault in the accident.

Prior to issuing its written judgment, the trial court found in open court that, although some of the depression and stress described by Geraci existed prior to the accident, her claim was basically treated with very little respect and “very little thought went into it, obviously.” The testimony of the adjuster “indicated a very arbitrary way of viewing this case, a very subjective way of viewing this case.” The court found that a demand letter submitted by Geraci over a year before Allstate’s evaluation fairly represented the facts.

Allstate’s file was admitted into evidence. Included in the medical information in Allstate’s file was a letter dated July 23, 2002 from Geraci’s gynecologist, Dr. David Curóle, in which the doctor stated that a combination of stress from the accident and medications given her for pain probably caused amenorrhea from which Geraci was then suffering.

Under LSA-R.S. 22:1220, an insurer has a good faith affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured. An insurer who breaches these duties is liable for any damages sustained as a result of the breach, which, according to the statute, may consist of failing to pay the amount of any claim due any insured within sixty days after [ (¡receipt of satisfactory proof of loss, when such failure is arbitrary, capricious, or without probable cause. Under the present version of LSA-R.S. 22:658, an insurer shall pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss from the insured or any party in interest, and failure to make such payment within thirty days after receipt of such proofs and demand therefor when the failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of twenty-five percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater.

Both LSA-R.S. 22:658 and R.S. 22:1220 impose upon the claimant an obligation to produce a satisfactory proof of loss. “Satisfactory proof of loss” in a claim pursuant to UM coverage is receipt by the insurer of “sufficient facts which fully apprise the insurer that (1) the owner or operator of the other vehicle involved in the accident was uninsured or under insured; (2) that he [or she] was at fault; (8) that such fault gave rise to damages; and (4) establish the extent of those damages.” The determination of whether an insurer acted in an arbitrary and capricious manner or in bad faith in its refusal to fairly and quickly settle its insured’s claim is a question of fact which will be reviewed on appeal under the manifest error standard of review.

Allstate does not argue the amount of the penalty awarded to Geraci. Allstate does contend, however, that LSA-R.S. 22:658 was amended on June 27, 2003, eliminating the attorney’s fee provisions, and that Geraci is not entitled to such fees. Legislative Act 2003, No. 790, § 1 was approved in the 2003 legislature, eliminating attorney’s fees for arbitrary refusal to settle under LSA-jR.S.? 22:658. According to the act itself, and La. Const., art. Ill, § 19, the amendment was not effective until August 15, 2003.

In the present case, the evidence reveals that Allstate was notified of Geraci’s demand for UM damages no later than April 2003, prior to filing of the First Amending Petition in May 2003. Allstate’s file contains a letter on that date from Geraci’s counsel with a copy of the First Amended Petition to be filed, asking for a settlement. Other documents include a letter from Geraci’s attorney dated July 28, 2003 indicating that Geraci had reported the accident to Allstate on February 27, 2002, that a new medical release was being forwarded, and that all medical bills and reports related to the loss were attached. Skorlich testified that she became aware of the claim in July 2003. No settlement offer was ever forthcoming. Under these facts, we find the cause of action for arbitrary and capricious refusal to settle arose prior to August 15, 2003.

As to the finding that Allstate was arbitrary and capricious, in addition to the above documents, Allstate’s file contained a May 14, 2004 letter from Geraci’s attorney to Allstate with updated patient records. Also on this date is a signed HIPAA compliant release form; a May 17, 2004 letter from Geraci’s attorney to Allstate’s counsel indicating the demand and outlining the injuries suffered by Geraci; a June 7, 2004 letter from Allstate’s attorney to Skorlich, attaching a medical authorization signed July 29, 2003; a copy of the $10,000 draft to Geraci from Financial Indemnity; a patient ledger indicating treatment for Geraci from March 13, 2002 through July 15, 2002; and a copy of a demand letter. Skorlich wrote a letter dated June 8, 2004 to Allstate’s counsel, indicating that medical bills in her possession at that point totaled $3,970.50. Based on the information on file, Skorlich did not feel that the claim exceeded the $10,000 settlement. Further, |sSkorlich was awaiting the new HIPAA release and requesting more medical records.

Allstate had a medical release signed by Geraci in July 2003, and, in September 2003, answers to interrogatories indicated that Allstate had the names of each of Geraci’s physicians and places of treatment, nearly a year before Geraci filed the action for arbitrary refusal to settle. Allstate made no offer of settlement other than the cost of defense. At that time of her evaluation, Skorlich had all the medical information upon which the court ultimately relied, as outlined in Geraei’s letter to Allstate’s counsel, before June 2004. Skorlich testified that $6,000 for pain and suffering was more than she would have evaluated Geraci’s claim. The trial court awarded Geraci an additional $5,000 for general damages, and Allstate does not appeal the determination by the trial court that Geraci’s damages totaled $15,000. Even applying the rule that penal statutes must be strictly construed, under all these circumstances, we find no error in the determination by the trial court that Allstate was arbitrary and capricious in refusing to make any offer in settlement of the claim.

Finally, Allstate argues that the attorney’s fees are excessive. We note that Allstate did not attempt to traverse attorney’s fees prior to judgment.

The trial court has much discretion in fixing the award of attorney’s fees and this award will not be modified on appeal absent an abuse of discretion. The proper standard for assessing attorney’s fees under LSA-R.S. 22:658 should be based on the services needed to effect recovery, the degree of professional skill and ability exercised, the volume of work performed, the time devoted to the case, and the amount in controversy. Although there was a contingency fee contract between counsel and Geraci, such is not the only basis upon which a court is to 19determine “reasonable attorney’s fees” as that term is used in LSA-R.S. 22:658. Rather, the contract is one of the factors used in determining reasonableness.

In the present case, Geraci’s counsel charged $150 per hour, a reasonable hourly fee. The fee schedule submitted indicated that 83.10 hours were expended on the case, which, with regard to the Allstate claim, took over two years to come to trial. The statement of attorney’s fees does not appear to include unjustified figures. Under these circumstances, we find no abuse of discretion in the award of attorney fees.

For the foregoing reasons, the judgment is affirmed.

AFFIRMED.

DALEY, J.,

dissents with reasons.

hi dissent from the majority’s opinion because I do not believe that Allstate Insurance Company’s conduct in its evaluation of this claim was arbitrary and capricious. An insurer’s refusal to pay cannot be arbitrary and capricious when there are serious issues regarding the plaintiffs right to recover. Sutton v. Oncale, 99-967 (La.App. 5 Cir. 3/29/00), 765 So.2d 1072. In the present case, we are called on to decide whether Allstate had a reasonable basis to contest plaintiffs claim that her damages exceeded the $10,000.00 limits of the tortfeasor’s liability policy. The medical records indicate that plaintiff visited three physicians as a result of injuries sustained in this accident. She visited an orthopedist on March 13, 2002, March 20, 2002, and April 15, 2002; a neurologist on March 13, 2002; and a had one visit with a gynecologist for cessation of her menstrual periods as a result of stress due to the accident. She attended physical therapy from March 13, 2002 until July 15, 2002 and again from April 2, 2003 until April 14, 2003. Additionally, plaintiff submitted medical expenses to Allstate that were later conceded to be not related to her treatment for injuries from the accident. Given the duration of treatment and the submission of medical expenses not related to the accident, I find that Allstate had a reasonable basis to consider plaintiffs claim to be not more than the $10,000.00 she received from the tortfeasor’s insurer. Allstate’s adjuster testified that Allstate evaluated the claim at $10,000.00 based on the assumption that about $1,000.00 per month 1 {.would be paid for the soft tissue injury. This amounted to a general damage award of $6,000.00. A review of the general damage awards for a soft tissue injury similar to that suffered by plaintiff indicates that Allstate’s valuation of plaintiffs claim was not unreasonable. See: Minkler v. Chumley, 32,558 (La.App. 2 Cir. 12/8/99), 747 So.2d 720 ($8,000.00 awarded to plaintiff who had soft tissue injuries to his neck and underwent physical therapy for eight months); Bourque v. Allstate Ins. Co., 99-1260 (La.App. 3 Cir. 3/22/00), 760 So.2d 411 (affirmed $6,000.00 general damage award to plaintiff who had soft tissue injuries to neck and back and was treated for over one year); and Mosley v. Methodist Health Sys. Foundation, 99-3116 (La.App. 4 Cir. 11/15/00), 776 So.2d 21 ($7,000.00 general damages awarded to plaintiff who had lumbar strain and was discharged eight months after the accident).

Based on the above factors, I respectfully dissent from the majority and would reverse the trial court’s award of penalties and attorney fees.

      . McDill v. Utica Mut. Ins. Co., 475 So.2d 1085, 1089 (La.1985); Hackman v. S. Farm Bureau Ins. Co., 629 So.2d 531 (La.App. 5 Cir. 1993), writ denied, 94-0421 (La. 4/4/94), 635 So.2d 1109.

      . Urrate v. Argonaut Great Cent. Ins. Co., 04-256 (La.App. 5 Cir. 8/31/04), 881 So.2d 787.

      . Sanderford v. Lombard, 96-1171 (La.App. 4 Cir. 12/11/96), 685 So.2d 1162.

      . See, e.g., Baghramain v. MFA Mut. Ins. Co., 315 So.2d 849 (La.App. 3 Cir.1975), writ denied, 320 So.2d 207, 209 (La.1975).

      .State Bar Articles of Incorporation, art. 16, Rules of Prof. Conduct, Rule 1.5(e); See also, Khaled v. Windham, 94-2171 (La.App. 1 Cir. 6/23/95), 657 So.2d 672, writ dismissed, 95-1914 (La.1 1/1/95), 661 So.2d 1369.