author:
GUIDRY, J.
      PARRO, J.,

text:
    Randolph GOMON v. Danny MELANCON.
    No. 2006 CA 2444.
    Court of Appeal of Louisiana, First Circuit.
    March 28, 2007.
    Rehearing Denied June 28, 2007.

      Scott T. Gegenheimer, Baton Rouge, Counsel for Plaintiff/Appellant Randolph Gomon.
    John F. Wilkes, III, Lisa E. Mayer, Joy C. Rabalais, Lana G. Duhon, Dayna M. Edwards, Lafayette, Counsel for Defendants/Appellees Danny Melancon and D & B Framing, Inc.
    Before: PARRO, GUIDRY, and McClendon, jj.
   GUIDRY, J.

frA carpenter’s helper appeals a summary judgment rendered in favor of his employer finding that he was not acting in the course and scope of his employment at the time he sustained an injury and therefore his claim was not covered under the Workers’ Compensation Act. Finding that the summary judgment was improperly rendered, we vacate the judgment.

FACTS AND PROCEDURAL HISTORY

At issue in this appeal is whether the claimant, Randolph Gomon, was in the course and scope of his employment at the time of his injury. Gomon worked as a carpenter’s helper for D & B Framing, Inc. At the time of the accident sued upon, Gomon was riding in a vehicle driven by his supervisor, Mark Mayers. Attached to Mayers’ vehicle was a trailer containing tools that Gomon, Mayers, and other workers making up Mayers’ “crew” used to perform work framing a house in Lafayette, Louisiana. The tool trailer was owned by Danny Melancon, the owner of D & B Framing, Inc.

D & B Framing, Inc.’s primary business activity is the framing of residential houses. Melancon also held an ownership interest in another business called Danny Melancon, L.L.C., which primarily performed supervisory and some contracting work. Generally, D & B Framing, Inc. performed work in the parishes of Livingston, Ascension, and East Baton Rouge; however, when work could not be found in those parishes, Melancon contracted for the company to frame two houses in Lafayette. Although both Gomon and May-ers worked at the Lafayette job site, Danny Melancon, L.L.C., not D & B Framing, Inc., employed Mayers as the job supervisor.

|3On November 17, 2005, while following Melancon to his bank in Denham Springs, Louisiana, a vehicle ran a stop sign and collided with Mayers’ vehicle, injuring Go-mon. Gomon filed a claim for workers’ compensation based on the accident, naming Melancon as his employer in the claim. Melancon and D & B Framing, Inc. filed an answer to the claim, denying liability for the payment of workers’ compensation benefits to Gomon. Thereafter, the parties filed cross motions for summary judgment seeking a determination of whether Gomon was in the course and scope of his employment at the time he was injured. Following a hearing on the cross motions, the workers’ compensation judge (WCJ) granted Melancon and D & B Framing, Inc.’s motion for summary judgment, denied the motion filed by Gomon, and dismissed Gomon’s claim with prejudice.

ASSIGNMENT OF ERROR

In the sole assignment of error presented in this appeal, Gomon submits that the WCJ’s finding that he was not in the course and scope of his employment at the time he was injured was contrary to the law and evidence.

STANDARD OF REVIEW

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Fagan v. LeBlanc, 04-2743, p. 5 (La.App. 1st Cir.2/10/06), 928 So.2d 571, 574. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Inferences drawn from the underlying facts contained in the materials before the court must be viewed in the light most favorable to the party opposing the motion. Hill v. Shelter Mutual Insurance Company, 05-1783, p. 3 (La.7/10/06), 935 So.2d 691, 693.

Material facts are those that potentially insure or preclude recovery, affect the litigant’s success, or determine the outcome of a legal dispute. Because it is the Lapplicable substantive law that determines materiality, whether or not a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Young v. Capitol Concrete Products, Inc., 02-1822, p. 3 (La.App. 1st Cir.6/27/03), 858 So.2d 513, 516, writ denied, 03-2095 (La.11/7/03), 857 So.2d 498. In determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Jones v. State Board of Elementary and Secondary Education, 05-0668, p. 5 (La.App. 1st Cir.11/4/05), 927 So.2d 426, 429.

On appeal, summary judgments are reviewed de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Sunrise Construction and Development Corporation v. Coast Waterworks, Inc., 00-0303, p. 4 (La.App. 1st Cir.6/22/01), 806 So.2d 1, 3, writ denied, 01-2577 (La.1/11/02), 807 So.2d 235.

APPLICABLE SUBSTANTIVE LAW

It is a well-settled principle that the provisions of the workers’ compensation scheme should be liberally interpreted in favor of the worker. Bynum v. Capital City Press, Inc., 95-1395, pp. 5-6 (La.7/2/96), 676 So.2d 582, 586. Under the Workers’ Compensation Act, employers are responsible for compensation benefits to employees only when the injury results from an accident “arising out of and in the course of his employment.” La. R.S. 23:1031. The determination of whether an injury occurred in the course and scope of employment is a mixed question of law and fact. Dean v. Southmark Construction, 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117.

Generally, injuries sustained by an employee while traveling to and from work are not considered to have occurred within the course and scope of employment, and thus, are not compensable under the Workers’ Compensation Act. This rule, often called the “going-and-coming rule,” is premised on the theory that, ordinarily, the employment relationship is suspended from the time the employee | ¡¿eaves work to return home until he resumes his work. Pruitt v. Brinker, Inc., 04-0152, p. 6 (La.App. 1st Cir.2/11/05), 899 So.2d 46, 51-52, writ denied, 05-1261 (La.12/12/05), 917 So.2d 1084. However, this rule has been subject to a number of jurisprudentially established exceptions, such as when the employee is deemed to be on a specific mission for the employer, because he was making a trip in the interest of his employer’s business or pursuant to his employer’s order; or if the employee was doing work for his employer under circumstances where the employer’s consent could be fairly implied. Brown v. Coastal Construction & Engineering, Inc., 96-2705, p. 3 (La.App. 1st Cir.11/7/97), 704 So.2d 8, 10.

DISCUSSION

In support of the cross motions for summary judgment, the parties introduced five joint exhibits, which included the depositions of Gomon, Mayers, and Melan-con. It is undisputed that Gomon was employed by D & B Framing, Inc. to work as a carpenter’s helper on a job in Lafayette. The typical workday was Monday through Friday, from 7:00 a.m. to 3:30 p.m.; however, the accident sued upon occurred at approximately 5:30 p.m. in Den-ham Springs, Louisiana. There was conflicting testimony presented regarding why Gomon was present at the place and time of the accident.

At the time of the accident, Mayers was following Melancon to Melancon’s bank. Gomon was a passenger in Mayers’ vehicle. Mayers and Gomon testified that they were traveling to Melaneon’s bank so that Melancon could deposit a check he had received from the general contractor to cover the payroll checks that were disbursed to the employees that day. Gomon admitted not knowing why Mayers had to accompany Melancon to the bank, but Mayers indicated that he wanted to make sure there were sufficient funds available to cover his paycheck on presentment. Mayers and Gomon both admitted that they planned to take advantage of the opportunity to cash their paychecks while at the bank.

biOn the other hand, Melancon stated that the reason why they were going to his bank was so he could assist Mayers in getting Mayers’ paycheck cashed. Melan-con testified that he had no intention of depositing the check he had received from the general contractor. Instead, he explained that his wife had established a line of credit to cover payroll for his employees and that he planned to give the general contractor’s check to his wife, who would deposit it on the following Monday.

In looking at the facts that led to Gomon being present in the Mayers’ vehicle at the time the accident occurred, both Gomon and Mayers testified that they resided near each other (Gomon stated “within walking distance”) and that by traveling together, they could share the expense of traveling to Lafayette for the job. Melan-con acknowledged that he was aware and did not object to Mayers’ travel arrangements with Gomon, but stated that he did not suggest or negotiate such arrangements. Gomon testified that the transportation provided by Mayers was beneficial to him because his vehicle was not operating properly, but there were some days that he used his own vehicle to travel to work.

Gomon and Mayers also testified that at the time of the accident, Mayers was hauling the tool trailer that belonged to Melan-con and that contained the equipment and tools that were being used to perform the framing work in Lafayette. They further testified that although Melancon rented a house in Church Point, Louisiana for the workers to reside in, the workers, including themselves, usually returned home on the weekends. Since no one typically stayed at the rental house on the weekends, Mayers would haul the trailer to either his or Gomon’s home for safekeeping over the weekend. Gomon testified that one time Mayers left the tool trailer at the rental house because one of the workers had spent the weekend at the house, but later some items from the tool trailer were discovered to be missing. After that occasion, Gomon testified that Mayers always hauled the tool trailer with him when he returned home for the weekend.

|7A11 three men stated in their depositions that on the date of the accident, Gomon and Mayers changed a flat tire on the trailer prior to the accident. Melancon further testified that Mayers had contacted him on previous occasions requesting parts to repair something that had broken on the trailer while Mayers was hauling the trailer to and from Lafayette. Following the accident, Mayers testified that the trailer and some equipment contained in the trailer had sustained some slight damage, but the vehicle Mayers drove was damaged beyond use. As a result, Melan-con transported the trailer to his home for storage over the weekend, and he later rented a pickup truck for Mayers to haul the tool trailer back to Lafayette.

The “course of employment” aspect of La. R.S. 23:1031(A) is a fact-dependent inquiry into the particular time, place, and employment activity at issue in a given case. Harris v. State ex rel. Dept. of Public Safety & Corrections, 05-2647, p. 11 (La.App. 1st Cir.11/3/06), 950 So.2d 795. Based on our de novo review of the record before us, we find that the WCJ improperly rendered summary judgment in this matter as it is clear that genuine issues exist regarding the material fact of whether Gomon was in the course and scope of his employment with D & B Framing, Inc. at the time he was injured. The WCJ inappropriately weighed the evidence and made a finding of fact, thereby substituting the motion for a trial on the merits. Considering the evidence contained in the record, we find reasonable minds could differ regarding the determination of whether Gomon was on a special mission for his employer at the time of the accident, and thus, in the course and scope of his employment. Accordingly, the summary judgment must be vacated.

CONCLUSION

For the foregoing reasons, we find that the WCJ improperly rendered summary judgment in this matter finding Randolph Gomon was not in the course and scope of his employment at the time of the accident sued upon. We vacate the | judgment rendered and remand this matter to the Office of Workers’ Compensation Administration for further proceedings. All costs of this appeal are cast to Danny Melancon and D & B Framing, Inc.

VACATED AND REMANDED.

PARRO, J., dissents and assigns reasons.

PARRO, J.,

dissenting.

I,At the time of the accident, Gomon was a guest passenger in the vehicle owned and driven by Mayers, and they had ended their work day and were returning to their respective homes for the weekend. Nonetheless, Gomon urged that he was on a specific mission for his employer, D & B Framing, Inc., by virtue of the fact that Mayers, who was an employee of Danny Melancon, L.L.C., was pulling a trailer containing tools that were used by the crew that worked under the supervision of Mayers. The majority found that the WCJ inappropriately weighed the evidence in considering the motion for summary judgment by D & B Framing, Inc. and Melancon. Finding that reasonable minds could differ regarding the determination of whether Gomon was on a special mission for his employer at the time of the accident, the majority concluded that a genuine issue of material fact existed as to whether Gomon was in the course and scope of his employment with D & B Framing, Inc. at the time he was injured.

Whatever the manner in which the employer might have interested himself in the transportation of the employee, the transportation must be an incident of the contract of hiring. Although an employer might occasionally provide transportation to accommodate an employee, that fact is not enough to bring the situation within the exception to the ^general rule that trips to and from the place of work are outside the course of employment. See Pruitt v. Brinker, Inc., 04-0152 (La.App. 1st Cir.2/11/05), 899 So.2d 46, 52. The distinction between transportation furnished as an occasional convenience and transportation supplied as a part of the employer’s undertaking has given rise to much confusion. Pruitt, 899 So.2d at 52.

Although Mayers was Gomon’s supervisor, he was employed by Danny Melancon, L.L.C. Neither Mayers’ employer nor Go-mon’s employer provided Mayers with a company vehicle or reimbursed Mayers for any expenses associated with the use of his personal vehicle in commuting from Lafayette to his home in Denham Springs on weekends. Instead, these expenses were shared by Mayers and Gomon. Mayers was under no obligation to bring Gomon to Denham Springs when he traveled home on the weekend. He was neither compensated by his employer or Gomon’s employer for doing so nor reprimanded or penalized if he refused to do so. It was strictly a personal decision made by Mayers as to whether he would offer a ride to a member of his crew who was in need. Considering the lack of proximity to the job location, the time in question, and the nature of the activity involved in this case, I find Gomon failed to produce factual support sufficient to establish that Mayers’ practice of transporting him from work to his home on the weekends was anything more than an arrangement of “accommodation only.” His failure to do so shows the lack of a genuine issue of material fact. See LSA-C.C.P. art. 966(C)(2). Under the circumstances of this case, the fact that Mayers may have been pulling a tool trailer that belonged to “Melancon” at the time of the accident does not justify a contrary finding. Accordingly, I find that this factual situation falls squarely within the general rule that an employee traveling to and from work is not considered to be within the course and scope of employment. Further, it does not fit within any of the jurisprudentially recognized exceptions to that general rule. Accordingly, I respectfully dissent.

      . Mayers’ father owned the vehicle driven by Mayers, a pickup truck.

      .Melancon testified in his deposition that his wife owned D & B Framing, Inc., but when asked if she was the sole shareholder or whether he was a shareholder in the company as well, Melancon responded, "I don't know how they have got it set up.” He acknowledged that his wife was president of the company and he managed it for her.


source: Caselaw Access Project

author: GAIDRY, J. KUHN, J.,

license: Public Domain

text:
    Laverne PENA and Frank Pena v. DELCHAMPS, INC.
    No. 2006 CA 0364.
    Court of Appeal of Louisiana, First Circuit.
    March 28, 2007.
    Writ Denied June 22, 2007.

      Robert L. Henderson, Jr., Slidell, Counsel for Plaintiffs/Appellees/Cross Appellants Láveme Pena and Frank Pena.
    Paul A. Eckert, New Orleans, Counsel for Defendants/Appellants Delchamps, Inc. and National Union Fire Insurance Co. of Pittsburgh, PA.
    Before: CARTER, C.J., KUHN, GAIDRY, HUGHES and WELCH, JJ.
   GAIDRY, J.

|aThe defendants-appellants, Delchamps, Inc. (Delchamps) and its insurer, National Union Fire Insurance Company of Pittsburgh, PA, appeal the trial court’s judgment rendered in accordance with a jury’s verdict awarding the plaintiff-appellee, Lá-veme Pena, the total amount of $620,000.00 for personal injury damages. Mrs. Pena and her husband have answered the appeal, seeking modification of the damages awards. For the following reasons, we affirm in part, reverse in part, and affirm.

FACTS AND PROCEDURAL BACKGROUND

On May 26, 1998, while shopping at a Delchamps grocery store in Slidell, Lá-veme Pena fell to the floor in front of the meat case. She sustained an injury to her right knee. Mrs. Pena was unable to walk and had to use an electric wheelchair to leave the store. As she departed, she was accompanied by a Delchamps employee, who told her that he had just mopped the floor where she fell. According to Mrs. Pena, there were no warning signs or cones set up indicating that the floor was wet. She did not recall seeing any mops or buckets in the area at the time of her fall. Mrs. Pena sought medical care and underwent a series of surgical procedures, eventually undergoing a total knee replacement.

On May 21, 1999, Mrs. Pena and her husband Frank filed this lawsuit, naming Delchamps and its insurer as defendants. After a jury trial, judgment |swas rendered in conformity with the jury’s verdict, awarding Mrs. Pena $420,000 in special damages and $200,000 in general damages.

Defendants suspensively appeal, assigning as error the jury’s conclusions that Delchamps was negligent and that Mrs. Pena was not comparatively at fault, and the awards of general and special damages as abusively high. The Penas’ answer challenges the award of general damages to Mrs. Pena, suggesting it was abusively low, as well as the jury’s failure to award loss of consortium damages to Mr. Pena.

LIABILITY OF DELCHAMPS

Louisiana Revised Statutes 9:2800.6 sets forth the burden of proof applicable to the claims at issue, providing in part:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, pri- or to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

14Thus, merchants are required to exercise reasonable care to protect those who enter the store, and this duty extends to keeping the premises safe from unreasonable risks of harm and warning persons of known dangers. Leonard v. Wal-Mart Stores, Inc., 97-2154, p. 4 (La.App. 1st Cir.11/6/98), 721 So.2d 1059, 1061. But merchants are not insurers of their patrons’ safety, and a customer is under a duty to use ordinary care to avoid injury. Cusimano v. Wal-Mart Stores, Inc., 04-0248 (La.App. 1st Cir.2/11/05), 906 So.2d 484. A merchant is not liable every time an accident happens.’ Leonard, 97-2154 at p. 3, 721 So.2d at 1061.

A hazardous condition is one that creates an unreasonable risk of harm to customers under the circumstances. In the context of slip-and-fall cases, a hazard is shown to exist when the fall results from an unreasonably slippery condition. Stockwell v. Great Atlantic & Pacific Tea Company, 583 So.2d 1186, 1188 (La.App. 1st Cir.1991).

The question of whether or not a condition presents an unreasonable risk of harm is subject to review under the manifest error standard. Thus, we must uphold the trial court’s determination if we are convinced, from a review of the entirety of the record, that it has a reasonable factual basis. See Reed v. Wal-Mart Stores, Inc., 97-1174, pp. 4-5 (La.3/4/98), 708 So.2d 362, 364-65. Where there are two permissible views of the evidence, the factfinder’s choice cannot be manifestly erroneous or clearly wrong. Stobart v. State, Through Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993).

On appeal, defendants contend that plaintiffs failed to prove that Mrs. Pena fell on a damp floor and, thus, failed to meet their burden of proof of an | .¡unreasonably dangerous condition. But the record duly supports this factual finding, and therefore, it cannot be manifestly erroneous. Mrs. Pena stated that the employee who accompanied her out of the store admitted that he had just mopped the area where she had fallen. Two Del-champs incident reports documenting a store investigation by manager Lloyd Bise confirmed that the area in which Mrs. Pena fell was in the process of being damp-mopped when the accident occurred.

Defendants also challenge the jury’s implicit conclusion that customers were not properly warned that the floor was being damp-mopped. They urge that Mr. Bise’s testimony established that the operational procedure of the store was to post warnings and set up cones, notifying customers that the area was wet. Mrs. Pena testified that she did not see any warnings and did not notice any mops or buckets in the vicinity. The record contains no evidence showing that Delchamps’s operational policy was actually implemented prior to the fall. The jury obviously relied upon Mrs. Pena’s testimony as credible and, therefore, was not manifestly erroneous in concluding that no warnings were in fact posted at the time of her fall and that Del-champs was negligent.

We find no error in the jury’s conclusion that the damp floor upon which Mrs. Pena fell presented an unreasonable risk of harm that Delchamps created and that the storeowner failed to exercise reasonable care. The defendants’ assignment of error as to the issue of liability has no merit.

COMPARATIVE FAULT

Defendants complain that the jury erred in failing to assess any fault to Mrs. Pena, suggesting that if the store was in the process of damp-mopping | fithe floor as indicated in the accident reports, then the act of mopping should have been obvious to Mrs. Pena. Delchamps did not put forth any evidence to rebut Mrs. Pena’s testimony that she did not see any mops or buckets in the area. The jury could have reasonably inferred that Mrs. Pena fell after the floor was mopped and all equipment put away, but prior to the floor drying. Its conclusion that Mrs. Pena was not at fault in causing her fall is not manifestly erroneous. See Laborde v. St. James Place Apartments, 05-0007, p. 5 (La.App. 1st Cir.2/15/06), 928 So.2d 643, 647; Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La.1985).

DAMAGES

The evidence establishes that the morning following the fall in Delchamps, Mrs. Pena consulted her family physician, Dr. James Newcomb. Because her knee symptoms continued to worsen, Mrs. Pena sought medical treatment in June 1998 from Dr. Jorge Sanchez, an orthopedic surgeon who had successfully operated on Mrs. Pena’s daughter and grandson in the past. Dr. Sanchez performed an arthros-copy of the knee in August 1998. The arthroscopy revealed that Mrs. Pena had moderate to severe arthritis in the medial compartment of her right knee.

Dr. Sanchez followed up on his post-arthroscopy care of Mrs. Pena and in November 1998 began administering injections. Mrs. Pena responded well to the injections, and in January 1999, Dr. Sanchez noted she was pain-free. He then discharged her from his care but advised her that she should return as needed.

|7In April 1999, Mrs. Pena returned to Dr. Sanchez, complaining of continued pain in her knee. He treated her with medication, which resulted in a cycle of relief followed by recurrent pain. By October 1999, the oral medications were no longer affording Mrs. Pena any relief, and Dr. Sanchez advised her that a total knee replacement surgery might be necessary. Mrs. Pena declined the surgery recommendation and again received injections in an effort to relieve her symptoms. Mrs. Pena continued conservative care with Dr. Sanchez, who frequently reminded her that knee replacement was indicated. By December 2000, Mrs. Pena decided to undergo the surgery, which Dr. Sanchez performed on January 8, 2001.

Following the total knee replacement surgery, Mrs. Pena developed an infection in the knee, requiring additional hospitalization. Dr. Sanchez referred' Mrs. Pena to Dr. Robert Barrack, who surgically removed the areas of infection from the earlier knee replacement surgery and installed an antibiotic cement spacer containing a high concentration of antibiotics. Because the infection had severely damaged Mrs. Pena’s tissue in the area, Dr. Jansen, a plastic surgeon, performed a muscle flap procedure soon after, moving nearby tissue to allow wound closure.

In April 2001, Dr. Barrack performed another surgery on Mrs. Pena. Dr. Jansen initiated the procedure, elevating the flap so it would not be damaged, and Dr. Barrack then removed the spacer. Because the tissue in the area continued to show evidence of infection, Dr. Barrack repeated the procedure he had done earlier, replacing the old spacer with a new one, again containing a high dose of antibiotics.

|sIn July 2001, Mrs. Pena’s infection had cleared, and Dr. Barrack successfully performed a second knee replacement surgery. By September 2001, Mrs. Pena was recovering with no signs of infection. She experienced numbness, which Dr. Barrack attributed to nerve damage caused by the muscle flap. According to Dr. Barrack, Mrs. Pena has a permanent partial disability. He included her in the population of knee replacement patients who have a higher incidence of pain and stiffness, are more likely to use a cane, and walk with a limp. After the second knee replacement operation, Mrs. Pena suffers from foot drop, a weakness of the muscles that pull the foot up. As a result, when she walks, her foot slaps down.

Special Damages

Plaintiffs presented documentary evidence of medical expenses in the amount of $420,716.08 for Mrs. Pena’s treatment following the fall. Defendants assert the jury’s award of $420,000.00 in special damages (medical expenses) was clearly wrong. The essence of their challenge is that Mrs. Pena’s injury resolved in January 1999 and that consequently they are not responsible for any medical expenses incurred for treatment after that date.

Dr. Sanchez explained to the jury that when he discharged Mrs. Pena, he did not mean to imply that her knee was healthy; she simply was not having any symptoms warranting further treatment at that time. Dr. Sanchez did not conclude that the fall caused the extensive arthritis present in Mrs. Pena’s knee. But because Mrs. Pena had experienced no symptoms attributable to arthritis in her knee prior to the fall, Dr. Sanchez opined that |9the fall in Del-champs aggravated that preexisting condition to the point that it became symptomatic. Mrs. Pena testified several times that before the accident she had no pain in her knee. Mr. Pena testified that he had never heard his wife complain of knee pain prior to the fall in Delchamps. That testimony was corroborated by the absence of any documented complaints of knee pain in Dr. Newcomb’s records, despite Mrs. Pena’s long relationship with that family physician.

Dr. Terry Habig, an orthopedic surgeon, examined Mrs. Pena at defendants’ request. He admitted that if Mrs. Pena was asymptomatic before May 28, 1998, it was his opinion that the fall aggravated the preexisting condition of her knee to the point .where she needed to have the ar-throscopy. He further admitted that in such event, the fall caused Mrs. Pena to become symptomatic and, more probably than not, her symptoms through the first knee replacement surgery were one continuous manifestation created by the fall. Dr. Habig explained to the jury that Mrs. Pena’s need for knee replacement surgery was due to a combination of arthritis present in the knee before the fall and the aggravation caused by the fall.

David Aiken, M.D., another orthopedic surgeon, conducted an expert evaluation of Mrs. Pena’s history, condition, and treatment at defendants’ request. Although he did not conduct a physical examination of Mrs. Pena, he reviewed her medical records and concluded that after the initial arthroscopy, when Dr. Sanchez indicated that she was discharged because she was pain-free, Mrs. Pena had recovered from the accident-related trauma. Dr. Aiken explained to the jury that he did not believe it was possible for a person |10with the degree of pre-existing arthritis Mrs. Pena had in her knee prior to the fall to have been asymptomatic.

In a personal injury suit, the plaintiff bears the burden of proving a causal relationship between the accident and the injuries complained of. American Motorist Ins. Co. v. American Rent-All, Inc., 579 So.2d 429, 433 (La.1991). A defendant takes the plaintiff as he finds him and is responsible for all natural and probable consequences of his tortious conduct. When the defendant’s negligent action aggravates a preexisting injury or condition, he must compensate the victim for the full extent of that aggravation. Perniciaro v. Brinch, 384 So.2d 392, 395 (La.1980). Whether the accident caused the plaintiffs injuries is a factual question that should not be reversed on appeal absent manifest error. Housley v. Cerise, 579 So.2d 973, 979 (La.1991).

The jury was presented with two versions of the facts and chose to believe Mrs. Pena when she stated that she did not experience any right knee pain prior to the fall in Delchamps. This credibility decision was the jury’s to make, and it is not manifestly erroneous. The testimony of Drs. Sanchez and Habig supported a finding that Mrs. Pena’s symptoms were one continuous manifestation as a result of the fall. The jury’s award of medical expenses, duly supported by the record, is not manifestly erroneous.

General Damages

“General damages” involve mental or physical pain or suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle that cannot be measured definitively in terms of money. Boudreaux v. Farmer, 604 So.2d 641, 654 (La.App. 1st Cir.), writs denied, 605 So.2d 1373, 1374 (La.1992). The primary objective of general damages is to restore the party in as near a fashion as possible to the state he was in at the time immediately preceding injury. Daigle v. U.S. Fidelity and Guar. Ins. Co., 94-0304, p. 7 (La.App. 1st Cir.5/5/95), 655 So.2d 431, 437. The factors to be considered in assessing quantum of damages for pain and suffering are severity and duration. Thibodeaux v. USAA Cas. Ins. Co., 93-2238, p. 8 (La.App. 1st Cir.11/10/94), 647 So.2d 351, 357. In Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994), the Louisiana Supreme Court noted:

[T]he discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.

For the same reasons upon which they base their challenge of the special damages award, defendants complain that the jury abused its discretion awarding $200,000.00 to Mrs. Pena in general damages. Their primary contention is that after January 8, 1999, she was no longer suffering from the effects attributable to her fall. We have concluded the record contains medical testimony to support the finding that Mrs. Pena’s symptoms before and after Dr. Sanchez’s initial discharge were one continuous manifestation caused by the fall. Further, as we have previously observed, the jury unequivocally concluded that virtually all of the documented medical liaexpenses for treatment of Mrs. Pena’s condition, including all surgical and hospital expenses, were caused by the fall and resulting injury.

Pointing to the five surgeries Mrs. Pena underwent, the serious risk of death she faced as a result of the post-surgery infection, the major change in her lifestyle to a less active one, and her residual physical disability or impairment, including the foot drop condition, the Penas urge that the jury’s general damages award was abusively low and that the award should be increased to at least $400,000.00. We agree that the jury abused its discretion in its award.

All of the physicians who examined Mrs. Pena agreed that she had preexisting arthritis in her knee. But again, a defendant takes his victim as he finds him, and he is responsible for all the natural and probable consequences of his tortious conduct. The preponderance of the evidence in the record demonstrates that the fall at issue precipitated the onset of Mrs. Pena’s symptoms, and that all of the medical treatment and its sequelae were legally caused by the fall.

We find that the jury abused its discretion in its general damage award considering the “particular injuries and their effects under the particular circumstances” of the case. Mrs. Pena not only underwent two extensive knee replacement procedures on the right knee, in addition to other surgeries, requiring 87 days of total hospitalization, but is also unfortunately left with a disabling foot drop condition that is likely permanent in nature. We find an appropriate award of general damages for Mrs. Pena’s pain and suffering to be $250,000.00, the lowest amount reasonably within the jury’s discretion for |isthe particular injuries proven to have been sustained by this particular plaintiff. See Youn, 623 So.2d at 1261.

Loss of Consortium

Loss of consortium includes such pecuniary elements as loss of services and such nonpecuniary components as loss of love, companionship, affection, society, sexual relations, comfort, and solace. See Emery v. Owens-Corporation, 00-2144, p. 20 (La.App. 1st Cir.11/9/01), 813 So.2d 441, 456, writ denied, 02-0635 (La.5/10/02), 815 So.2d 842.

Mr. Pena asserts the jury erred in failing to award him any damages for loss of consortium. Trial testimony indicated that after his wife’s fall, Mr. Pena had to undertake additional housework, took time off from work for twelve weeks, helped care for Mrs. Pena’s surgical wound and infection after the first knee replacement surgery, was unable to engage in intimate relations with his wife, and could no longer enjoy her company in their former joint activities of walking, biking, dancing, and parading.

Determining the amount or “quantum” of damages is a fact determination for the jury and is “entitled to great deference on review.” Trunk v. Med. Ctr. of La. at New Orleans, 04-0181, p. 9 (La.10/19/04); 885 So.2d 534, 539, citing Wainwright v. Fontenot, 00-0492, p. 6 (La.10/17/00); 774 So.2d 70, 74. In the latter case, the supreme court established an “abuse of discretion” standard of review for claimed inconsistencies in damage awards. The supreme court held that there is no “bright line rule” that an award of special damages without corresponding general damages constitutes legal error. Id., 00-0492 at p. 9, 774 So.2d at 76. The | uWainwright decision did not, however, go so far as to expressly abrogate the long-standing line of jurisprudence that it is legal error to award special damages for a personal injury, yet simultaneously refuse to award general damages for injuries with objective symptoms or findings. Nor did Wainwright address the situation present in the jury’s verdict as to which Mr. Pena complains: a clearly wrong factual finding of no damages and the refusal to grant an award of damages that is inconsistent with the evidence. Such a situation would not constitute an abuse of discretion in the award of damages; rather, it would constitute manifest error in the predicate factual determination of the existence of damages.

Therefore, we are required to examine the trial testimony and evidence to discern whether the jury committed manifest error by declining to award Mr. Pena any damages for loss of consortium. Considering the particular facts and circumstances of this case, including the uncontradicted testimony of Mr. and Mrs. Pena, we must conclude that the jury committed manifest error in finding that Mr. Pena did not sustain a compensable loss of consortium. Based upon our review of the evidence, we award damages de novo for Mr. Pena’s loss of consortium in the sum of $25,000.00.

DECREE

In conclusion, the plaintiffs-appellees’ motion to dismiss the appeal of the defendant-appellant, National Union Fire Insurance Company of Pittsburgh, PA., is denied. The trial court’s judgment rendered in conformity with the jury’s verdict is reversed in part to award the plaintiff-appellant, Frank Pena, the sum of $25,000.00, amended in part to increase the award |1sof general damages to the plaintiff-appellant, Láveme Pena, to $250,000.00, and affirmed in all other respects. The costs of this appeal are assessed to the defendants-appellants, Delchamps, Inc. and National Union Fire Insurance Company of Pittsburgh, PA.

MOTION TO DISMISS DENIED; REVERSED IN PART; AMENDED IN PART; AND AFFIRMED IN PART.

KUHN, J., dissents and assigns reasons.

KUHN, J.,

dissenting.

hi disagree with the majority’s modifications of the trial court’s judgment, which incorporated the jury’s award of $200,000 in general damages to Mrs. Pena and its conclusion that Mr. Pena was not entitled to any loss of consortium damages. Appellate courts should not substitute their conclusions for those made by the trier of fact.

As the majority correctly notes, all the doctors who examined Mrs. Pena agreed that she had preexisting arthritis in her knee but it fails to mention that they also agreed that, even without the fall, she would eventually develop knee problems, which would limit her activities and cause her to have pain. These doctors also indicated that, depending on how old she was at the onset of the debilitating pain, treatment would vary: the younger she was when her knee became symptomatic, the more likely knee replacement surgery was indicated. Therefore, the medical testimony supports a finding that Mrs. Pena’s pain and suffering was of limited duration since, even if she had not fallen in Del-champs, future knee problems were inevitable. Therefore, I do not see any abuse of discretion by the jury in its award of $200,000 to Mrs. Pena for her general damages. And given this medical testimony, the jury certainly was within its province to infer that at some point in their lives, Mr. Pena would have to bear consortium losses due to the preexisting arthritic condition of Mrs. Pena’s knee. Thus, I believe the jury did not abuse its discretion in its determination that Mr. Pena was not entitled to loss of consortium damages.

|gFor these reasons, I would affirm the trial court’s judgment, incorporating the jury’s verdict. Accordingly, I dissent.

      . Since a notice of abandonment was neither sought by plaintiffs nor issued by the clerk of this court, plaintiffs' motion to dismiss the appeal of National Union Fire Insurance Company of Pittsburgh, PA, based on its brief being untimely, is denied. Uniform Rules of the Louisiana Courts of Appeal, Rule 2-8.6. See Keating v. Cambre, 420 So.2d 1355 (La.App. 5th Cir.1982), writ denied, 446 So.2d 1222 (La.1984).


author: PER CURIAM. WELCH, J.,

text:
    B.W.S., Jr., T.A.S., as Administrators of the Estate of M.T.S. v. LIVINGSTON PARISH SCHOOL BOARD, Randy Pope, Superintendent of Livingston Parish School Board, Cecil Picard, Louisiana Department of Education State Board of Elementary and Secondary Education.
    No. 2007 CW 0137.
    Court of Appeal of Louisiana, First Circuit.
    April 4, 2007.
    Donna U. Grodner, Baton Rouge, for Plaintiffs B.W.S., Jr., et al.
    Carey T. Jones, Denham Springs, for Defendants Livingston Parish School Board, et al.
    Uma M. Subramanian, Asst. A.G., Baton Rouge, for Defendants State Board of Elementary and Secondary Education.

      Before: KUHN, GAIDRY and WELCH, JJ.
   PER CURIAM.

LFACTUAL HISTORY AND PROCEDURAL BACKGROUND

This is another writ application filed by plaintiffs, the parents of an eighth grade student at Doyle High School in Livingston Parish. On November 11, 2005, the school expelled the eighth grader for twelve months for “any other serious offense.” See La. R.S. 17:416(A)(3)(a)(xvii). She admitted to leaving a school function, smoking marijuana with other students and returning to the school function under the influence. Although the child was allowed to enroll as a repeating eighth grade student in August of 2006, her parents seek to have her promoted to ninth grade as soon as possible because she was home-schooled in 2006 and passed the LEAP test; her parents also claim that she has continued to be home schooled in ninth grade subjects even while currently attending the eighth grade.

The plaintiffs have been through protracted litigation in this matter. In June 2006, the child’s parents filed a petition seeking injunctive relief against the Livingston Parish School Board, Randy Pope, Superintendent of Livingston Parish School Board, Cecil Picard, and Louisiana Department of Education State Board of-Elementary and Secondary Education. They sought to require defendants to administer the LEAP test to their child and to show by what authority they failed to provide her with alternative education during Spring 2006. The parties stipulated that one of the defendants would administer the LEAP test to the child on June 30, 2006. The case was set for trial on the remaining issues on August 21, 2006. The LEAP test was given and the child passed.

On July 31, 2006, plaintiffs filed a motion for an emergency hearing and/or for an entry of a restraining order, alleging that on that date, the School Board informed plaintiffs that if the child wanted to be admitted for the 2006/07 school year, plaintiffs would have to enter into an undisclosed contract with the school, the child would enter eighth grade and the school would not evaluate her for entry into the ninth grade or consider her home schooling for purposes of grade placement. Plaintiffs sought injunctive relief mandating that the defendants evaluate the child for placement in the ninth grade and consider her home schooling, relying on La. R.S. 17:236.2. Plaintiffs further sought alternative education beginning August 8, 2006, and that defendants be restrained from taking any action interfering with the | .^child’s obtaining an education in Livingston Parish. The minute entry of July 31, 2006, shows that the trial court ruled on the pleadings that the twelve month expulsion of the child would stand unless the child decided to return to the eighth grade at the beginning of the 2006 school year and that, due to the fact the child would not complete her expulsion until November 2006, the motion was premature.

The parents sought writs. In August 2006, this Court granted the writ and ordered that: 1) the School Board or BESE complete all evaluations of the child within ten days from the date of the order and that the School Board provide alternative schooling or allow the child to enroll in the eighth grade in August, 2006, without waiving her right to be promoted to the ninth grade if she qualified based on the same, or alternatively, 2) BESE and the School Board assist the child in obtaining an approved home schooling plan for the 2006-07 school year appropriate to her grade level performance. 2006CW1518. The trial court was ordered to determine, among other things, the child’s appropriate grade level if the home schooling complied with an approved program. The Board sought expedited review of this Court’s ruling with the Supreme Court. On August 16, 2006, the Louisiana Supreme Court granted the Board’s writ and remanded to the trial court for an expedited hearing with the trial court being directed “to receive appropriate evidence from the parties and render a judgment addressing all relevant issues, including, but not limited to, whether the Board has an obligation to provide alternative education to ... [the child] pursuant to LSA-R.S. 17:416.” 2006-CC-1981.

On August 21, 2006, the trial court addressed the State’s exception of no cause of action, dilatory exceptions of mootness, prematurity and unauthorized use of summary proceedings, and the School Board’s exception of prematurity and exceptions of no cause of action and res judicata before holding the evidentiary hearing as directed by the Supreme Court. The trial court granted all the exceptions. Prom these rulings, plaintiffs sought writs.

On October 18, 2006, in 2006CW1684, this Court issued the following action:

WRIT GRANTED IN PART WITH ORDER, DENIED IN PART. The amended pleading filed on July 31, 2006, states a cause of action for a mandatory injunction in regard to alternative schooling and evaluation of the student’s home ^schooling undertaken to date in order to determine placement. Therefore, we hereby deny the exceptions of no cause of action and improper use of summary proceedings. To the extent that the passage of time has mooted the request for mandatory injunction in regard to alternative schooling, we remand the matter to the trial court and we hereby order that the relators be allowed time to amend their petition to state a cause of action, if they can, in regard to alternative schooling issues. . .We hereby deny the exceptions of prematurity in regard to issues about the placement of the child based on home schooling; the trial court erred to the extent the court determined that LSA-R.S. 17:416A(3)(e) should be interpreted as denying credit for home schooling in regard to suspended or expelled students... [T]here is no prohibition... that prevents home schooling from being used to avoid a child’s loss of a full grade level if the child and parents fully comply with the state approved home schooling plan and the placement evaluation requirements. Time is of the essence in determining the child’s placement prior to the end of the period of expulsion and such a determination cannot be considered premature at this point. Therefore, a cause of action having been stated in regard to a mandatory injunction, the matter is remanded to the trial court and the court is hereby ordered to hold a full evidentiary hearing and to determine whether or not the mandatory injunction requested by rela-tors in regard to the home schooling issues should be granted, and if so, against which defendant(s), on or before October 30, 2006.

A hearing was held on October 25, and the trial court ordered the School Board to evaluate the child’s home schooling and to return the evaluation the next day. The Board returned its evaluation on October 26, finding that the child failed the eighth grade, and the trial court then found that the evidentiary hearing ordered by this Court was moot. Plaintiffs proffered testimony and evidence.

Plaintiffs again sought writs before this Court, requesting this Court to issue a writ of mandamus to the district court ordering an emergency evidentiary hearing, such that the evidence on the proffered records could be produced in open court to allow plaintiffs to show that the-Board evaluation of the child’s home schooling was based on false facts, that the home schooling complied with the law, and that the child should be placed in the ninth Grade on November 1, 2006. 2006CW2163. In the alternative, plaintiffs requested that the mátter be heard based on the evidence proffered on October 26.

IsMeanwhile, plaintiffs filed a motion for an emergency hearing and they also filed an appeal of the School Board’s evaluation. The School Board responded with exceptions raising the objections of lack of subject matter jurisdiction, lis pendens/motion to stay, improper cumulation of actions, unauthorized use of summary proceedings, and no cause of action. Following a November 28, 2006 hearing, the trial court ruled that it had no subject matter jurisdiction and maintained that exception and dismissed the motion in a judgment. From this ruling, plaintiffs filed 2006CW2469.

On January 17, 2007, this Court granted writs in 2006CW2177 and ordered the trial court to hold a full evidentiary hearing to determine whether the mandatory injunction requested by the parents in regard to the home schooling issues should be granted. This Court ordered the School Board on or before January 24, 2007, to allow the parents to explain the deficiencies and to reconsider its evaluation of the child’s home schooling and her placement. The School Board took writs to the Supreme Court, which were denied on January 24, 2007. 2007-CC-0121.

Plaintiffs filed the present writ alleging that the School Board did not comply with this Court’s order in 2006CW2177 because the School Board wanted the parents to submit written material to it rather than to meet with the parents in person. This Court issued an interim order ordering the trial court to hold a hearing with all parties present on or before February 9, 2007, wherein it would consider plaintiffs’ proffered testimony and evidence introduced at the previous hearing addressing the deficiencies the School Board found in the home schooling program and any additional evidence or testimony which the parents might introduce on this issue. Then, the School Board on or before February 13, 2007, was to reconsider its evaluation of the child’s home schooling and her placement in light of the testimony and evidence introduced at the hearing. The School Board was then to submit the reevaluation to the trial court on or before February 14, 2007, and the trial court was to review the School Board’s action and to rule on or before | (¡February 15, 2007 upon whether the mandatory injunction requested by the plaintiffs should be granted. The trial court was then to provide this Court with documentation of its ruling. The School Board again took writs to the Supreme Court, which denied them on February 7, 2007. 2007-CC-0234.

The trial court held a hearing on February 9, 2007, and, after reviewing the School Board’s action, issued written reasons for judgment, wherein the trial court stated that the School Board had reconsidered its evaluation of the Swindle "home schooling and the child’s placement in light" of the testimony and evidence introduced. The court then found that a thorough evaluation was performed by the School Board and that it determined that grade placement should be for the eighth grade as the student did not receive adequate instruction and work for the eighth grade. Therefore, the trial court denied the mandatory injunction request.

Plaintiffs filed another motion for contempt with this Court in 2007CW0137, complaining that the School Board was not present at the hearing and that the Board had failed to return materials plaintiffs had previously provided to the Board.

ANALYSIS

We very reluctantly deny writs in this matter. The trial court has finally complied with this Court’s interim order to review the School Board’s actions in evaluating this child for placement in the ninth grade considering her home schooling. While the School Board as an entity was not present in court at the most recent hearing, its counsel was and its representatives suggested that they finally re-evaluated the child considering all the evidence and testimony from the parents addressing the deficiencies the School Board’s committee found in the home schooling.

We note this matter first came before this Court on August 1, 2006. At that time, the child’s parents sought injunctive relief to have the School Board evaluate the child for ninth grade placement, following their petition for an injunction to have the School Board administer the LEAP test to their child, as is required by law. The trial court and School Board did not properly evaluate the child for placement until February 2007, after this Court issued several orders and the Supreme Court issued an order for them to do so. While we do not in any way condone or excuse the offense for which this child was suspended, the institutional delays in the judicial |7system and in the School Board’s actions fighting every attempt by the parents to have their child maintain her education have cost this child one year of her academic life. Time was of the essence in this matter and nothing the trial court or School Board did indicated that they understood such.

As to the merits of the evaluation itself, this Court unfortunately has no jurisdiction to review the evaluation. See Johnson v. Southern University, 2000-2615 (La.App. 1 Cir. 12/28/01), 803 So.2d 1140; Jones v. Southern University, 96-1430 (La.App. 1 Cir. 5/9/97), 693 So.2d 1265; Estay v. Lafourche Parish School Board, 230 So.2d 443 (La.App. 1 Cir.1969). We note that the United States Supreme Court in Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), stated, “It is not the role of the federal courts to set aside decisions of school administrators which the court may view as lacking a basis in wisdom or compassion.”

That being said, we note that the child passed the LEAP test with a Mastery Achievement Level in English Language Arts and a Basic Achievement Level in Mathematics. The Pupil Progression Plan states that LEAP passage is the principal criterion for promotion in eighth grade. The deficiencies the School Building Level Committee found with the child’s home schooling when considered with the fact that the child passed the LEAP test and was home schooled for the remainder of her eighth grade year should not have been given substantial weight. We believe that the School Board found more merit in enforcing rules of procedure than in considering whether this child was ready to perform ninth grade work. We note that the child who provided the marijuana to the plaintiffs’ child, while suspended, was able to receive tutoring at home during her expulsion provided by a teacher from the School Board because she was hearing-impaired and was subsequently enrolled in the ninth grade for the 2006-2007 school year.

Lastly, while this child might have a damages claim as to the School Board’s refusal to provide her with an alternative education and other actions it took, the remedy of allowing the child to attend the ninth grade at this late date provides her with no relief as there are less than 65 days left in the school year and the child cannot meet the attendance requirements, much less make up for the lessons taught and assignments given in the time she was not in the ninth grade at school.

|sThe School Board’s conclusion that the child should be placed in the eighth grade appears to be arbitrary in light of the fact that the minor passed the LEAP test.

CONCLUSION

For the above and foregoing reasons, we deny the writ.

WRIT DENIED.

WELCH, J.,

concurs to point out that the punishment far exceeds the offense committed in this case. It is a sad day for education and justice in this state when administrators and the courts so miserably fail to do justice and hurt a child.

      . Plaintiffs filed a fourth writ application, 2006CW2177, resolving the rule violations which resulted in the dismissal of the prior writ. 2006CW2163, decided October 31, 2006.

      . Meanwhile, plaintiffs filed suit in federal court on October 30, 2006, seeking damages due to the School Board's excessive punishment for a serious offense, its failure to provide the child with an alternative education, its retroactive application for a waiver from providing alternative education to allegedly prevent this child from receiving an education, its refusal to administer the LEAP test, and its refusal to evaluate the child’s home schooling to determine her grade placement. Plaintiffs also named BESE as a defendant for its alleged failure to monitor Livingston Parish. They sought 42 USCA section 1983 damages for the violation of the child's right to a public education, for the failure to offer her alternative education, and the refusal to . recognize her home schooling. ■


author: GUIDRY, J.

text:
    Casey T. MORGAN v. LOUISIANA STATE UNIVERSITY HEALTH SCIENCES CENTER—E. A. CONWAY MEDICAL CENTER.
    No. 2006 CA 0570.
    Court of Appeal of Louisiana, First Circuit.
    April 4, 2007.

      Robert J. Bozeman, Clint R. Hanchey, Monroe, Counsel for PlaintiffiAppellee Casey T. Morgan.
    William A. Norfolk, Baton Rouge, Counsel for Defendant/Appellant LSU Health Sciences Center E.A. Conway Medical Center.
    Robert R. Boland, Jr., Baton Rouge, Counsel for Defendant/Appellant Anne S. Soileau, Acting Director, Department of State Civil Service and Acting Secretary, State Civil Service Commission.
    Before: PARRO, GUIDRY, and GAIDRY, JJ.
   GUIDRY, J.

|aThe Louisiana State University Health Sciences Center — E. A. Conway Medical Center (LSU) appeals a decision from the State Civil Service Commission (Commission), reversing LSU’s termination of the employment of its employee, Casey T. Morgan, and awarding attorney fees. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

LSU employed Ms. Morgan as an Accounting Specialist 2 in the Patient Accounts department at the E.A. Conway Medical Center. She served with permanent status. On April 22, 2005, H. Ayron McGuire, hospital administrator and delegated appointing authority for the hospital, sent Ms. Morgan a certified letter dated April 21, 2005, advising her that he was considering terminating her employment for non-disciplinary reasons. Concluding the letter, Mr. McGuire further advised Ms. Morgan that she could “respond to this proposed action either verbally or by letter addressed to me. Any such response must be accomplished not later than April 29, 2005.” This letter was received on behalf of Ms. Morgan on May 3, 2005.

Meanwhile, Mr. McGuire sent a followup certified letter dated May 3, 2005, to Ms. Morgan informing her that “[a]fter receiving no response to my letter dated April 21, I have decided to proceed with the non-disciplinary action described in that previous letter. Your removal from your appointment as an Accounting Specialist 2 at this facility will be effective at 4:30 p.m. Wednesday, May 11, 2005.” Ms. Morgan personally received delivery of the May 3, 2005 letter on May 4, 2005.

|aBy a letter dated June 2, 2005, Ms. Morgan appealed LSU’s decision to terminate her employment for non-disciplinary reasops, asserting that LSU violated Civil Service Rule 12.7 in failing to give her a reasonable opportunity to respond to the April 21, 2005 letter and in failing to describe the evidence supporting the proposed action to terminate her employment. The referee assigned by the Commission to hear Ms. Morgan’s appeal reversed her termination; reinstated her employment, subject to various conditions, effective May 11, 2005, the date of her termination; and awarded her $1,500 in attorney fees. LSU sought review of the referee’s decision by the Commission, but the Commission denied its application for review and the decision of the referee became the final decision of the Commission on December 16, 2005. LSU then appealed the decision of the Commission to. this court.

ASSIGNMENTS OF ERROR

In this appeal, LSU contends that the Commission’s reversal of its termination of Ms. Morgan’s employment was premised on the following errors:

ASSIGNMENT OF ERROR NO. 1:
The Commission erred in finding that the attempt by the U.S. Postal Service to deliver a certified letter to the residence of Casey Morgan did not constitute delivery of the letter advising Morgan that LSU was considering separating her from her employment at LSU under Civil Service Rule 12.6(a)l.
ASSIGNMENT OF ERROR NO. 2:
The Commission erred in finding that LSU had not afforded Casey Morgan “due process” in the manner in which it notified her of its intent to separate her from her employment.
ASSIGNMENT OF ERROR NO. 3:
The Commission erred in failing to find that Casey Morgan had been given the opportunity to respond to the “pre-deprivation” letter dated April 21, 2005.
ASSIGNMENT OF ERROR NO. 4:
The Commission erred in failing to find that [Casey] Morgan had been given [an] opportunity to respond to the May 3, 2005 letter |4(which advised her of her separation of employment scheduled for May 11, 2005).
ASSIGNMENT OF ERROR NO. 5:
The Commission erred in failing to apply the “7 day presumption” of Civil Service Rule 12.8(d)2 to the letter sent to [Casey] Morgan by certified mail.
ASSIGNMENT OF ERROR NO. 6:
The Commission erred in awarding attorney’s fees to Casey Morgan and her attorney, stating that LSU had been “unreasonable.”

DISCUSSION

Classified civil service employees have a property interest in retaining their positions and cannot be terminated without due process of law. Slowinski v. England Economic and Industrial Development District, 02-0189, p. 3 (La.10/15/02), 828 So.2d 520, 523. Civil Service Rule 12.7 provides that no permanent employee may be removed until he has been given oral or written notice of the proposed action, the reasons for the proposed action, a description of the evidence supporting the proposed action, and a reasonable opportunity to respond.

In its first two assignments of error, LSU contends that the manner in which the April 21, 2005 letter was sent to Ms. Morgan was sufficient to constitute delivery of the letter by April 25, 2005, and notice in compliance with due process and Civil Service Rules. Absent proof that Ms. Morgan deliberately avoided receipt of the letter, we find no merit in this assertion.

LSU offered into evidence two pages identified as “track & confirm” reports generated by the United States Postal Service relative to the delivery of the April 21, 2005 certified letter. The first report states that a notice was left on April 25, 2005, at 4:12 p.m., in Farmerville, Louisiana, and that delivery was made on May 3, 2005, at 12:24 p.m., in Farmerville, Louisiana. The second report simply reiterates that the item was delivered on May 3, 2005, at 12:24 p.m., in Farmerville, Louisiana. A copy of the return receipt postcard for the April 21, [s2005 letter, offered into evidence by LSU, confirmed that the letter was delivered on May 3, 2005, and revealed that Rick Bowen signed for delivery of the letter.

Although Ms. Morgan may not have been as prompt in collecting the letter from the post office as LSU may have hoped, there was no evidence presented that she deliberately ignored the notice or delayed retrieving the letter. See McFarland v. Dippel, 99-0584 (La.App. 1st Cir.3/31/00), 756 So.2d 618, 622 (“where the facts demonstrate a litigant chose to ignore notice of a certified letter, and refused to claim the letter at the post office, that conduct is tantamount to a refusal of service and cannot defeat otherwise valid service”). Thus, we find no basis for holding that Ms. Morgan’s due process rights relative to the termination of her employment should be forfeited just because no one happened to be available to take delivery of the April 21, 2005 certified letter on the first attempted delivery by the United States Postal Service.

Nor do we find persuasive LSU’s assertion that the mere sending of the letter by certified mail constitutes service of those documents and thus notice under the circumstances of this case. In Jones v. Flowers, 547 U.S. 220, 239, 126 S.Ct. 1708, 1721, 164 L.Ed.2d 415 (2006), the United States Supreme Court held that the state could not simply ignore that a certified letter, sent to a taxpayer notifying him that his property was to be sold at a tax sale, had been returned unclaimed, stating “[i]t is not too much to insist that the State do a bit more to attempt to let him know about it when the notice letter addressed to him is returned unclaimed.”

As observed by the Court in Jones, “[ujsing certified mail provides the State with documentation of personal delivery and protection against false claims that notice was never received. That added security, however, comes at a price — the State also learns when notice has not been received.” Jones, 547 U.S. at 237, 126 S.Ct. at 1720 (emphasis in original). Further, “the use of certified mail might make actual notice less likely in some cases — the letter cannot be left like regular mail to |fibe examined at the end of the day, and it can only be retrieved from the post office for a specified period of time.” Jones, 547 U.S. at 235, 126 S.Ct. at 1719.

While not factually on point, the holding in Jones clearly underscores the premise that due process requires the government to provide “notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). Thus, although the actions of LSU may have been reasonably calculated to provide notice in the ordinary case, the notice was clearly inadequate in this case, especially considering that the government is required to consider unique information about an intended recipient. See Jones, 547 U.S. at 230, 126 S.Ct. at 1716. Notice was properly not presumed in this case in light of compelling evidence that it was not timely received. The inadequacy of the notice is even more obvious in this case, where LSU had proof that the recipient received the notice untimely, than in Jones where the notice letter was simply returned unclaimed. We therefore reject LSU’s allegations in its first two assignments of error that the Commission erred in finding that the notice provided herein was inadequate.

In its third and fourth assignments of error, LSU avers that the Commission erred in finding that Ms. Morgan had not been given a reasonable opportunity to respond to both the April 21, 2005 and May 3, 2005 letters. We find no merit in this argument. Civil Service Rule 12.7 provides that no permanent employee may be removed “until he has been given oral or written notice of the proposed action and the reasons therefor, a description of the evidence supporting the proposed action and a reasonable opportunity to respond thereto.” (Emphasis added).

The contents of the April 21, 2005 letter gave notice of and reasons for the proposed action and further stated a time period in which Ms. Morgan could 17respond to the proposed letter — by April 29, 2005; however, because Ms. Morgan did not receive the April 21, 2005 letter until May 3, 2005, she essentially did not have, and accordingly was not given, an opportunity to respond to the April 21, 2005 letter, because the identified time period to respond had elapsed prior to her receipt of the notice. Moreover, the April 21, 2005 letter specifically stated that Ms. Morgan’s response “must be accomplished not later than April 29, 2005.” Thus, in accordance with the plain wording of the April 21, 2005 letter, Ms. Morgan was precluded from responding to the proposed action after April 29, 2005.

Furthermore, LSU’s assertion that it would have allowed Ms. Morgan to respond to the proposed termination of her employment after the April 29, 2005 deadline was in no manner expressed or communicated in the May 3, 2005 letter. Instead, the May 3, 2005 letter simply informed Ms. Morgan of the decision to terminate her employment effective 4:30 p.m., Wednesday, May 11, 2005, and advised her that she could appeal the decision to the Commission within thirty days. Pursuant thereto, Ms. Morgan filed an appeal of the decision with the Commission on June 2, 2005. Neither letter gave any indication that Ms. Morgan could respond to the proposed action as of the date of her receipt of the letters; rather, the April 21, 2005 letter expressly communicated that no response would be allowed as of the date Ms. Morgan received that letter and the May 3, 2005 letter pointedly advised Ms. Morgan that if she disagreed with the decision communicated therein, she could appeal the decision to the Commission. As such, Ms. Morgan was not given a pre-deprivation opportunity to respond to the proposal to terminate her employment, and the Commission did not err in so finding.

In its fifth assignment of error, LSU contends that the Commission erred in holding that the provisions of Civil Service Rule 12.8(d)(2) did not apply to certified mail. That rule provides that “[wjritten notice is considered given... on |sthe 7th calendar day after it is mailed to the employee, with correct postage, at the most recent address he furnished in writing to his personnel office.” Even assuming the provisions of Rule 12.8(d)(2) were applicable to certified mail, the notice in this case would still be inadequate as the date by which the notice would be presumed to have been received under the rule was the same as the date by which Ms. Morgan was required to respond to the April 21, 2005 letter. Thus, based on our observation that even had LSU relied on the presumption provided in Rule 12.8(d)(2), the notice still would have been inadequate to allow Ms. Morgan a reasonable opportunity to respond to the proposed action as mandated under Civil Service Rule 12.7; Accordingly, we pretermit ruling on whether the presumption provided in Civil Service Rule 12.8(d)(2) applies to certified mail.

Finally, in its last assignment of error, LSU contests the award of attorney fees to Ms. Morgan. Civil Service Rule 13.35 grants referees and the Commission the discretionary power to award attorney fees when the action of an appointing authority is modified or reversed, and an abuse of that discretion must be shown for this court to modify or vacate the award. See Price v. Department of Public Safety and Corrections, Avoyelles Correctional Center, 03-0979, p. 3 (La.App. 1st Cir.4/2/04), 878 So.2d 612, 614.

We disagree with LSU’s assertion that the facts reveal that it acted reasonably and in good faith in terminating Ms. Morgan’s employment. Although LSU’s reasons for seeking termination of Ms. Morgan’s employment may have been valid and in good faith, the manner in which it sought to terminate her employment, in clear violation of the requirements of Civil Service Rule 12.7, cannot be likewise regarded. Despite evidence that Ms. Morgan did not receive timely notice of its proposed action, LSU, nevertheless, decided to proceed with terminating her employment. Based on this evidence, we cannot say that the | gCommission abused its discretion in awarding Ms. Morgan attorney fees in this matter.

CONCLUSION

For the foregoing reasons, we affirm the decision of the Commission reversing LSU’s termination of Ms. Morgan’s employment, reinstating her employment, and awarding attorney fees. All costs of this appeal, in the amount of $269.00, are assessed to Louisiana State University Health Sciences Center-E. A. Conway Medical Center.

AFFIRMED.

      . Civil Service Rule 1.4 defines "appointing authority” as “the agency, department, board, or commission, and the officers and employees thereof authorized by statute or by lawfully delegated authority to make appointments to positions in the State Service.”

      . According to the return receipt postcard, Rick Bowen signed for delivery of the letter.

      . See Civil Service Rule 13.20.

      . See Civil Service Rule 13.36 and La. Const. Art. X, § 12(A).


author: GUIDRY, J. PARRO, J.,

text:
    Alton MACK v. CITY OF BATON ROUGE.
    No. 2006 CA 0140.
    Court of Appeal of Louisiana, First Circuit.
    April 4, 2007.
    Writ Denied June 22, 2007.
    Denise A. Vinet, Vinet & Vinet, Baton Rouge, Counsel for Plaintiff-Appellant Alton Mack.
    E. Wade Shows, Deidre D. Robert, Gwendolyn K. Brown, Office of the Parish Attorney, Baton Rouge, Counsel for Defendant-Appellee City of Baton Rouge.
    Before: PARRO, GUIDRY, DOWNING, MCDONALD, and McClendon, jj.
   GUIDRY, J.

| ¡.Plaintiff, Alton Mack, sought judicial review of the administrative decision of the Personnel Board of the City of Baton Rouge, Parish of East Baton Rouge (Board), upholding his termination from the Department of Public Works (DPW). From the district court judgment affirming the Board’s decision, Mr. Mack has appealed. We reverse.

FACTUAL AND PROCEDURAL HISTORY

Mr. Mack was employed by DPW for approximately twelve years, until he was terminated for refusing to submit to an alcohol and drug test. On June 9, 2004, Mr. Mack reported to his place of employment, the North Bridge and Canal Lot (the lot). He began his workday after punching in at the time clock at 6:30 a.m. Shortly after he arrived at work, Mr. Mack used one of the telephones in the main office to call his wife, who had paged him. Stephen Phenald, the superintendent of the lot, noticed Mr. Mack using the telephone at a time when he believed Mr. Mack should have already left the lot for his work assignment; therefore, Mr. Phe-nald advised Philip Jackson, Mr. Mack’s immediate supervisor, to discuss the issue with Mr. Mack.

Following the telephone conversation with his wife, Mr. Mack complied with the necessary procedures for taking emergency leave and punched out at the time clock at 7:09 am. Mr. Mack then indicated that he wanted to speak with the superintendent, Mr. Phenald, and his immediate supervisor, Mr. Jackson, regarding his use of the office telephone. Prior to this interaction, it was understood by all parties that Mr. Mack needed to leave work to attend to an emergency. Following the discussion, and just prior to Mr. Mack’s departure, Mr. Phenald stated that he smelled alcohol on Mr. Mack’s breath. At some point thereafter, Mr. Phenald demanded that |sMr. Mack stay because he had to submit to a “drug test.” However, Mr. Jackson, Mr. Mack’s immediate supervisor, subsequently told Mr. Mack that he could leave and attend to his emergency. Mr. Mack left the lot and did not submit to the test on that day.

On June 10, 2004, Mr. Mack was notified by letter that he was suspended, pending the outcome of a pre-termination hearing. After the hearing, Mr. Mack was terminated from employment with DPW for refusing to submit to the test. Mr. Mack appealed the decision to the Board, which upheld the termination by a 3-2 vote. Mr. Mack then sought judicial review of the Board’s decision, and the district court affirmed the decision of the Board. It is from this judgment that Mr. Mack has appealed.

MOTION TO REMAND

As a preliminary matter, we note that Mr. Mack has filed a motion to remand the matter to the district court to allow the district court to provide written findings of fact and reasons for judgment. After the district court signed its judgment affirming the decision of the Board, Mr. Mack timely filed a request for written findings of fact and reasons for judgment. In response, the district court filed the transcript of its oral reasons for judgment into the record. In his motion to this court, Mr. Mack contends that this was not sufficient to comply with LSA-C.C.P. art. 1917.

In support of this argument, Mr. Mack relies on Alexis v. Conley, 532 So.2d 564 (La.App. 1st Cir.1988). In Alexis, the trial court provided oral findings of fact and reasons for judgment. After receiving a timely request |4for written reasons for judgment, the trial judge suggested that the requesting attorney contact the court reporter and obtain a transcription of the oral reasons. Instead, the party seeking the written reasons filed a request for supervisory writs to this court. This court ordered the trial judge to provide written reasons, stating:

It is the responsibility of the trial judge to provide written findings of fact and reasons for judgment when requested to do so. It is not the responsibility of a party litigant to contact a court reporter requesting a transcription of oral reasons for judgment. Necessarily, a party litigant may find a need to review reasons for judgment prior to taking an appeal.

Alexis, 532 So.2d at 564-65.

The case currently before this court is distinguishable from Alexis. In this matter, the district judge did not advise Mr. Mack to contact the court reporter to obtain a transcript. Instead, the judge apparently requested that the oral reasons be transcribed and filed them into the record, where they were available to the parties. Furthermore, we note that the transcribed reasons were filed into the record on November 17, 2005, and Mr. Mack did not file his notice of appeal until December 12, 2005. Therefore, Mr. Mack clearly had an opportunity to review the written reasons prior to perfecting the appeal. Accordingly, we deny the motion to remand.

STANDARD OF REVIEW

The standard of review applied in cases of this nature was set forth by this court in Tanner v. City of Baton Rouge, 422 So.2d 1263 (La.App. 1st Cir.1982), writ denied, 429 So.2d 128 (La.1983). The decision of the Board may not be overturned absent a finding that it is either not supported by substantial and competent evidence, or it is arbitrary, capricious, or an abuse of discretion. See Tanner, 422 So.2d at 1265-66.

| [¡DISCUSSION

On appeal, Mr. Mack contends that the district court erred in affirming the Board’s decision upholding his termination, asserting that the Board’s decision was not supported by substantial evidence. In addition, Mr. Mack contends that he had a legitimate reason to refuse to take the alcohol test, because his immediate supervisor, Mr. Jackson, had advised him that he could leave.

Controlling herein are the drug-free workforce provisions set forth in Ordinance 12268 (the ordinance) of the City of Baton Rouge, Parish of East Baton Rouge (City-Parish). Section 8:5.A. of the ordinance authorizes drug and alcohol testing of City-Parish employees in order to enforce the prohibitions “against drugs and alcohol in the City-Parish workplace.” Section 8:2.C. defines “City-Parish Workplace” as any site, building, premises, or other location at which an employee “is performing City-Parish work.” Clearly, Mr. Mack was not performing City-Parish work while walking to his vehicle after taking emergency leave and clocking out.

Moreover, the record does not indicate whether all three Board members who voted to uphold Mr. Mack’s termination definitively determined whether his “refusal” to submit to the test was expressly stated or simply implied by virtue of his departure. The comments of at least one of those members indicate his finding that Mr. Mack’s refusal was implicitly conveyed by his leaving.

Mr. Mack’s termination was based on his violation of Section 8:3.E., which provides as follows:

Refusal to Cooperate. Compliance with this chapter, including participation in drug and alcohol testing, is a condition of continued employment with the City-Parish. Any refusal to submit to a drug test or an alcohol test, or refusal to cooperate with the City-Parish in any of the procedures involved in the |fidrug and alcohol testing provided for by this chapter shall be a violation of this chapter. For purposes of this chapter, refusal shall include not only an express refusal to submit to a drug test or an alcohol test but also any failure to appear for any test, failure to report a serious incident, or any absence or departure from City-Parish work:
1. That occurs without a verified legitimate reason:
a. After the employee learns that he or she is required to submit to the test or tests; or
b. After an occurrence which, under this chapter, could result in the employee being required to submit to a drug test or an alcohol test; or
2. That is determined by the City-Parish to have been a pretext for avoiding the test or tests.

All of the involved parties, including Mr. Phenald, were well aware that Mr. Mack was “off the clock” and leaving to take care of an emergency long before Mr. Phe-nald made his olfactory observation and thereafter demanded that Mr. Mack submit to a test. Thus, Mr. Mack’s departure was obviously for a legitimate reason and not contrived simply as a pretext to avoid testing.

Given the totality of the facts in this case, that Mr. Mack had taken emergency leave and punched out and that following Mr. Phenald’s statement regarding a drug test, Mr. Mack’s immediate supervisor told him that he could leave, we find that the action of the Board in upholding Mr. Mack’s termination constituted an abuse of discretion.

CONCLUSION

Accordingly, the judgment upholding Mr. Mack’s termination is reversed and Mr. Mack is hereby ordered reinstated. The Personnel Board of the City of Baton Rouge, Parish of East Baton Rouge is cast with the costs of this appeal in the amount of $476.94.

REVERSED.

PARRO, J., dissents with reasons.

MCDONALD, J., dissents.

McClendon, j., concurs.

PARRO, J.,

dissenting.

|,As the majority has noted, the standard of review in this matter was established in Tanner v. City of Baton Rouge, 422 So.2d 1263 (La.App. 1st Cir.1982), writ denied, 429 So.2d 128 (La.1983). Pursuant to that standard of review, a presumption of regularity must be accorded to the decision of the Board, and the decision of the Board may not be overturned absent a finding that it is either not supported by substantial and competent evidence, or it is arbitrary, capricious, or an abuse of discretion. See Tanner, 422 So.2d at 1265-66. Furthermore, the factual conclusions of the Board, as the trier of fact, are entitled to great weight. See Dumez v. Houma Municipal Fire & Police Civil Service Board, 408 So.2d 403, 405 (La.App. 1st Cir.1981). As the finder of fact that personally observed the witnesses, the Board’s credibility determinations are entitled to great weight. James v. City of Baton Rouge Through Dept. of Public Works, 489 So.2d 1308, 1310 (La.App. 1st Cir.1986).

Section 8:1 of the ordinance establishes that one purpose of the ordinance is to eradicate drug and alcohol abuse and then-effects in the City-Parish workplace. As the 1 ¡.majority notes, “City-Parish Workplace” is defined in section 8:2(C) as any site, building, premises, or other location at which an employee “is performing City-Parish work.” The majority then concludes that Mr. Mack was not performing City-Parish work while walking to his vehicle after taking emergency leave and clocking out. However, it is clear from the record that Mr. Phenald first noticed the smell of alcohol and advised Mr. Mack of the need for an alcohol test before Mr. Mack left to go to his vehicle. In fact, although Mr. Mack had clocked out in preparation for leaving work, he remained at the workplace to participate in a meeting he had requested to discuss work rules and policies with Mr. Phenald and Mr. Jackson. Clearly, Mr. Mack was at the workplace and performing a work-related activity at the time Mr. Phenald made his observation.

Furthermore, the record demonstrates that Mr. Mack was not terminated bécause he had, in fact, worked or reported to work under the influence of alcohol; rather, he was terminated for refusing to submit to an alcohol test when Mr. Phenald told him he had to do so, under circumstances in which Mr. Phenald had reasonable suspicion that Mr. Mack had consumed alcohol. Pursuant to section 8:3(E) of the ordinance, “refusal” includes not only an express refusal to submit to a drug or alcohol test, but also any failure to appear for any test or a departure from City-Parish work that occurs without a verified legitimate reason. The majority concludes that Mr. Mack did not refuse to submit to the test within the meaning of section 8:3(E) of the ordinance, because he left work that day for a verified legitimate reason. However, there is considerable evidence in the record that Mr. Mack expressly refused to submit to the test.

According to his testimony, Mr. Mack left work that day in order to attend to an emergency involving his son. However, Mr. Phenald, Mr. Jackson, and the other witnesses testified that Mr. Mack did not inform them of any emergency involving his son on the day of the incident. In fact, Mr. Jackson testified that Mr. Mack simply told him he was leaving work because he was not feeling well. Furthermore, Mr. Mack initially denied that Mr. Phenald had ever told him that he needed to take an alcohol test, and he contended he would have submitted to a test if Mr. Phenald had told .him |sto do so, despite the situation with his son. However, he later acknowledged that he had heard Mr. Phe-nald tell him he had to take the test when he was in the parking lot. Moreover, both Mr. Phenald and Mr. Jackson testified that Mr. Phenald had advised Mr. Mack several times, both inside the building and in the parking lot, that he needed to submit to a test and that Mr. Mack had responded that he did not need to do so because he was not on the clock. In addition, Mr. Mack’s -wife testified that her husband had told her that he did not believe he had to submit to the test because he was no longer on the clock at the time of the meeting.

The testimony elicited at the hearing provided the Board with two permissible views of the evidence. .Clearly, the Board chose to credit the testimony of Mr. Phe-nald, Mr. Jackson, and Mrs. Mack in this matter, over the testimony of Mr. Mack. Under the standard of review set forth above, this court is bound to give great deference to such credibility decisions. Based on a thorough review of the record in light of that standard of review, I would affirm the judgment of the district court upholding the Board’s decision, because there is substantial evidence to support the Board’s decision. Further, I believe that the Board’s decision was not arbitrary, capricious, or an abuse of discretion. Accordingly, I respectfully dissent.

      . There is conflicting testimony as to when Mr. Phenald first informed Mr. Mack he had to submit to a drug test. It appears from their comments in the record that a majority of the board members who voted to uphold Mr. Mack's termination based their decision on the fact that Mr. Phenald yelled the command to Mr. Mack while he was proceeding to his vehicle in the parking lot.

      . At the hearing, Mr. Phenald conceded that Mr. Mack's submission to the test would have required him to punch back in. However, Mr. Mack had already complied with the leave policy and was on emergency leave.