text:
    Jeffery FUNDERBURK v. NABORS DRILLING USA, INC.
    No. 05-1119.
    Court of Appeal of Louisiana, Third Circuit.
    April 26, 2006.

      Harry K. Burdette, The Glenn Armentor Law Corp., Lafayette, LA, for Plain-tiffAppellant Jeffery Funderburk.
    Kevin A. Marks, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, for Secondary Defendant/Appellant Nabors Drilling USA, Inc.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   GREMILLION, Judge.

h The plaintiff, Jeffery Funderburk, appeals the workers’ compensation judge’s finding that he has reached maximum medical improvement and is no longer entitled to indemnity or medical benefits stemming from his work-related injury. The defendant, Nabors Drilling USA, Inc., also appeals the workers’ compensation judge’s award of indemnity benefits. We reverse in part finding him still temporarily, totally disabled and entitled to further medical treatment and additional penalties and attorney’s fees.

FACTS

The parties stipulated that Funderburk, a floor hand for Nabors Drilling USA, Inc., suffered a work-related injury to his lower back on July 24, 2003. He was treated at the Lake Charles Memorial Hospital Emergency Room and then driven to Lafayette, Louisiana, where he was seen by Nabors’ orthopaedic surgeon, Dr. Michael Duval. After he returned to the rig, the evidence is conflicting as to what occurred; but, for whatever reason, Funderburk left the rig and returned home. He has not worked since that day, and he was terminated by Nabors shortly thereafter.

Funderburk went to the Christus St. Frances Cabrini Hospital Emergency Room in Alexandria on July 25, 2003, complaining of lower back pain, and was diagnosed with lumbar strain with possible disc disease. He then sought treatment from Dr. Elmer Raffai, an orthopaedic surgeon, in Eunice. Dr. Raffai noted muscle spasms in Funderburk’s lower back and recommended that he undergo an MRI. The August 15, 2003 MRI revealed degenerative changes in multiple levels of his lumbar spine, with L3-4 being the worst. The radiologist noted diffuse degenerative bulging pdiscs at L2-3, L3-4, L4-5 and L5-S1 and a posterior annular tear and narrowing of the spinal canal at L3-4 and L4-5. Dr. Raffai referred Funderburk to Dr. Michael Holland, an orthopaedic surgeon, for consultation on the need for surgery.

Dr. Holland recommended a lumbar my-elogram and CT scan after finding only subjective complaints of pain during his examination. As these tests revealed bulging at the above-stated levels, but no disc herniation, Dr. Holland found no indication for surgery and referred Funder-burk to pain management upon his request. Funderburk then filed a disputed claim for compensation on February 25, 2004, alleging that Nabors arbitrarily and capriciously failed to authorize pain management treatment as recommended by Dr. Holland.

Dr. Holland referred Funderburk to Dr. Stephan Katz, for pain management treatment. After examining him on March 3, 2004, Dr. Katz felt that Funderburk would benefit from epidural steroid injections into his lower back. Until those were approved, he planned to treat him with medication. Nabors denied any further authorization for treatment with Dr. Katz.

Dr. Duval evaluated Funderburk for a second medical opinion on March 9, 2004. After examining him, his medical records, and his previous tests, he felt that a functional capacity evaluation (FCE) would be appropriate to determine a baseline and to determine whether Funderburk was valid in his presentation. If the results of the evaluation were valid, then Dr. Duval agreed that he should undergo further treatment. At this point, Joseph Sarkies, a claims adjustor for Kenneth Livaudais Claims Service, Inc., Nabors’ third-party adjustor, requested an FCE for Funder-burk. Dr. Holland agreed with this request.

| 3On April 15, 2004, Funderburk sought treatment from the emergency room at St. Frances Cabrini, complaining of continuous pain, muscle spasms, and leg pain due to his lumbar spine complaints. The emergency room records reveal that the attending physician noted palpable pain, muscle spasms, and negative point tenderness in the spinous process.

After Sarkies scheduled a five-day, eight-hour-per-day FCE, Dr. Holland received a letter from Funderburk’s counsel, which enclosed an April 19, 2004 statement from Dr. Katz that he did not believe Funderburk capable of withstanding a comprehensive FCE, as he had not yet initiated treatment for his condition. On May 12, 2004, Nabors obtained an order from the workers’ compensation judge ordering Funderburk to attend the FCE.

Funderburk began the FCE on July 12, 2004; however, he only completed three days of the five-day evaluation. Trevor Bar dar son, the administering physical therapist, found that the effort displayed by Funderburk was poor due to.“inappropriate responses to valid tests and failed to find objective signs which validate the subjective presentation of the symptoms or impairments of the client. This behavior threatens the validity of this report.” Bar-darson stated that although he was unable to accurately determine Funderburk’s ability to work, a sedentary level with restrictions was demonstrated. He further reported that Funderburk tested positive in two of five Waddell’s categories: simulated rotation and distracted testing, particularly the supine versus seated straight leg raising tests.

Funderburk filed an amended disputed claim for compensation on August 31, 2004, again alleging that Nabors failed to authorize the pain management | ¿treatment recommended by Dr. Holland and seeking penalties and attorney’s fees as a result of its action.

Sarkies sent a copy of the FCE to Dr. Duval on September 9, 2004. After reviewing the evaluation, Dr. Duval opined that Funderburk was at maximum medical improvement (MMI). In his September 16, 2004 letter to Sarkies, he stated:

Given the fact that this patient’s myelo-gram shows no compressive lesions as well as the post-myelogram CT scan, I doubt seriously that a neurosurgical evaluation would be helpful or medically necessary. Given that the patient’s functional capacity evaluation suggests symptom magnification, I would also not think a trial of epidural steroid injections or pain management referral is medically necessary.
Since validity is in question, the best way to make an accurate assessment of this patient’s physical capabilities are his radiologic studies, which are purely objective. When considering this patient’s MR scan and CT myelogram alone, I would not place any physical limitations on his work capabilities.

Based on Dr. Duval’s opinion, Sarkies terminated Funderburk’s weekly indemnity benefits on October, 14, 2004. In response to Sarkies’ inquiry, Dr. Holland also found Funderburk at MMI on November 22, 2004. Dr. Holland agreed with Dr. Duval that a trial of epidural steroids was unad-visable if Funderburk was magnifying his symptoms and, based on the MRI, myelo-gram, and CT scan, he placed no physical restrictions on his work status.

Funderburk sought medical treatment from the Louisiana State University Health Sciences Center in Shreveport, Louisiana, after Nabors refused to authorize further treatment. On October 19, 2004, he complained of lower back pain radiating down into the left leg. He had a positive straight leg raise test on the left and moderate muscle spasm. A November 24, 2004 MRI of the lumbar spine revealed degenerative changes with desiccated discs at L3-4, L4-5, and L5-S1; disc | sprotrusion at L4-5, with a radial tear in the annulus fibrosis; and a small synovial cyst on the left at L4-5.

On December 15, 2004, Funderburk returned to Dr. Raffai, still complaining of pain in his lower back. Dr. Raffai noted point tenderness, severe stiffness and muscle spasms at L5-S1 on palpation, and radiculopathy down both legs. He restricted Funderburk from working at that time. On December 16, 2004, Funderburk notified Nabors of Dr. Raffai’s finding and off-work slip and requested that it reinstate his indemnity benefits. On January 4, 2005, he sent Nabors a copy of the LSU medical reports and notified it that he was scheduled for an epidural injection on January 5, 2005. On that date, he underwent a left lumbar transforaminal epidural steroid injection at L4-5 due to nerve root compression. Funderburk again forwarded LSU’s medical records to Nabors on March 1, 2005, and requested that it pay all outstanding medical expenses.

This matter proceeded to a trial on the merits, after which it was taken under advisement. The workers’ compensation judge issued oral reasons on June 24, 2005, finding that Funderburk was at MMI as of November 22, 2004, and that he was entitled to temporary total disability benefits from October 15, 2004 through November 22, 2004. He further awarded him $2000 in penalties and $2000 in attorney’s fees as a result of Nabors’ arbitrary and capricious termination of his indemnity benefits on October 14, 2004. Finally, the workers’ compensation judge denied Funderburk’s request for pain management treatment and a neurosurgical evaluation. A judgment was rendered in this matter on July 11, 2005. Funderburk has appealed the judgment, as has Nabors.

IJSSUES

On appeal, Funderburk argues that the workers’ compensation judge erred in finding that he was not entitled to any further indemnity benefits, pain management treatment, or a neurosurgical evaluation, and that Nabors was not arbitrary and capricious in refusing to authorize the recommended treatment. Nabors appeals arguing that the workers’ compensation judge erred in awarding Funderburk indemnity benefits from October 15 through November 22, 2004. Funderburk answered this appeal requesting additional attorney’s fees for work performed on appeal.

STANDARD OF REVIEW

As in any other civil matter, the standard of review applied in workers’ compensation matters where the factual findings of the workers’ compensation judge are called into question is the manifest error standard. This standard, which is based upon the reasonableness of the factual findings in light of the record reviewed in its entirety, is well established in our jurisprudence following the seminal cases of Rosell v. ESCO, 549 So.2d 840 (La.1989), and Stobart v. State, through Department of Transportation and Development, 617 So.2d 880 (La.1993). We will proceed with our review of the matter.

DISABILITY AND TREATMENT

In order to receive temporary total disability benefits, an employee must prove that he is unable to physically engage in any employment or self-employment as a result of his work-related injury. La.R.S. 23:1221(l)(c). The employee’s burden of proof is by clear and convincing evidence; thus, Funderburk must prove that his | disability is highly probable or much more probable than not. Carrier v. Debarge’s Coll. Junction, 95-18 (La.App. 3 Cir. 9/27/95), 673 So.2d 1043, writ denied, 96-0472 (La.4/8/96), 671 So.2d 337.

With regard to medical treatment, La.R.S. 23:1203(A) provides that the employer shall provide all necessary treatment, including “medical and surgical treatment, or any nonmedical treatment recognized by the laws of this state as legal.” An employee establishes a claim for medical benefits by proving by a preponderance of the evidence and to a reasonable certainty, the need for such treatment following his work-related accident. Ware v. Allen Parish Sch. Bd., 02-1011 (La.App. 3 Cir. 5/21/03), 854 So.2d 374.

Funderburk testified that he was taken to Lake Charles Memorial Hospital’s emergency room after he injured his back, where he received shots and pain medication for his injury. He said he was driven back to the rig and then to Nabors’ Lafayette office so that he could see Dr. Duval, its orthopedic surgeon. Funder-burk testified that Dr. Duval recommended that he be placed on limited duty, but that he was released to full duty after Sarkies requested it on the understanding that he would perform only light-duty work at the rig.

Funderburk testified that when he returned to the rig he was told by the tool pusher that no light-duty work existed, so he called his wife and went home. The next night, he went to the St. Frances Cabrini’s emergency room due to lower back pain and was again treated with injections and pain medication. Shortly thereafter, he said that he requested treatment from Dr. Raffai, who ordered an MRI. Subsequently, he stated that Dr. Raffai referred him to Dr. Holland for a surgical | sconsultation. Funderburk further testified that Dr. Holland ordered a myelogram and post-myelogram CT scan and then told him that he did not require surgery. He said that he returned to Dr. Raffai for further treatment which was not approved by Nabors, and that he has not yet been released to work.

According to Funderburk, he sought treatment from Louisiana State University in Shreveport when Nabors refused to approve any further treatment. He stated that he underwent an epidural steroid injection and that he is scheduled for followup treatment there. He testified that the doctors at LSU have discussed surgery with him and that he is desirous of undergoing disc replacement surgery and would like to be evaluated by a neurosurgeon in Lake Charles. He stated that he requested authorization from Nabors to see that doctor, but that his request was denied.

Funderburk stated that he has not worked since the accident nor has he looked for work. He claims that he can drive short distances and use a computer; he also admitted that he has taken his son hunting since his accident. He testified that he takes pain medication approximately four times a day and that he. was told to limit his sitting by his LSU doctors.

Debra, Funderburk’s wife, testified that Dr. Raffai was Funderburk’s choice of a treating physician. She stated that Dr. Raffai referred him to Dr. Holland for a surgical evaluation and that Dr. Holland in turn referred him for pain management and, possibly, for a neurosurgical evaluation. She testified that Funderburk was seen once by Dr. Katz for pain management, but that Nabors refused to authorize any further treatment by him. She stated that he is currently undergoing | atreatment at LSU. She said that Funderburk is unable to drive or sit in the same position for very long and that he currently takes pain medication which cautions against driving while taking.

Sarkies testified that he initiated Fun-derburk’s indemnity benefits on August 7, 2008, retroactive to July 25, 2003. He stated that payment of benefits continued until October 14, 2004. He stated that he further authorized both emergency room visits by Funderburk, his treatment with Drs. Raffai, Duval, and Holland, and all diagnostic testing and physical therapy. After determining that Funderburk’s mye-logram was normal, Dr. Holland suggested that he undergo pain management. Sark-ies stated that he requested an FCE prior to Funderburk commencing pain management, to which both Drs. Holland and Du-val agreed. When notified of the results, Sarkies testified that Dr. Duval felt that Funderburk was at MMI, he did not require any further treatment, and he could return to work without any restrictions. Based on Dr. Duval’s report, Sarkies stated that he terminated Funderburk’s indemnity benefits on October 14, 2004. He said that he then sent this information to Dr. Holland, who concurred with Dr. Du-val’s opinion. Despite the LSU medical reports, Sarkies did not think it would be reasonable for Drs. Holland and Duval to render a new opinion as to Funderburk’s condition.

Dr. Holland saw Funderburk twice, once to examine him and once to review his tests. During his examination, he stated that Funderburk complained of pain with forward flexion, but did not exhibit any objective symptoms. He reviewed Fun-derburk’s MRI, which revealed disc abnormality at L4-5, with a right-sided paracen-tral disc protrusion and facet arthropathy. He ordered a myelogram and post-jmyelo-gram10 CT scan in order to determine whether Funderburk was suffering from a neural impingement. The tests revealed some bulging, but no disc herniation. They also revealed anterior indentations at multiple levels. Dr. Holland explained that this was considered normal in most cases. Although the tests revealed some findings, he testified that they indicated no need for surgery and, probably, that Fun-derburk had not even suffered an injury.

Based on the tests results, Dr. Holland agreed to Funderburk’s request for six weeks of pain management treatment. However, at Sarkies’ request, he consented to an FCE prior to Funderburk undergoing pain management. Upon Dr. Katz reporting that Funderburk would be unable to withstand a comprehensive FCE prior to receiving pain management treatment, he agreed that the epidural steroid injections could precede the FCE. However, he stated that he perceived no reasons why Funderburk could not withstand the FCE based on his previous presentation.

Subsequent to the FCE, Dr. Holland stated that he received a letter from Sark-ies containing the results and Dr. Duval’s opinion that Funderburk was at MMI. Dr. Holland testified that based on this information, he felt that Funderburk was at MMI on November 22, 2004. He further agreed with Dr. Duval that based on the findings of symptom magnification in the FCE, he did not feel that a trial of epidural steroid injections was necessary or that any physical restrictions should be placed on Funderburk. However, Dr. Holland agreed that while the findings on Funder-burk’s MRI, myelogram, and CT scan contained objective findings of abnormal lumbar discs, they revealed no indications for surgery. While he opined that surgery would fail if performed, he admitted that this did not mean that Funderburk was not ^suffering from back pain or from a back injury. He further testified that he never found any signs of symptom magnification or positive Waddell’s signs while examining Funderburk. He also added that a neurosurgical evaluation might be beneficial if other physicians or an FCE discovered some inconsistencies in his condition. Concerning the LSU medical reports, Dr. Holland refused to comment on those, other than stating that he would defer to Funderburk’s treating orthopaedic surgeon regarding his current medical condition.

Dr. Duval examined Funderburk twice, once on the date of the accident and then for a second medical opinion on March 9, 2004. After the accident, Dr. Duval testified that Funderburk complained of pain in his lower back and left buttock and flank. He stated that he limped on his left leg and had difficulty squatting and with forward flexion. Finding no indication of significant nerve root compression, Dr. Duval recommended physical therapy, restricted Funderburk to light-duty work, and prescribed muscle relaxers and pain medication. He stated that he reviewed the August 15, 2003 MRI, which revealed three-level degenerative disc disease and a small central disc protrusion at L4-5. Dr. Duval found no need for surgery after reviewing this test.

On March 9, 2004, Dr. Duval testified that Funderburk complained of pain and numbness in both legs and a loss of motion. Dr. Duval stated that he found no objective physical findings in his examination and noted that Funderburk was positive for two of the four Waddell’s signs. Based on this, he suggested that Funder-burk undergo an FCE to determine the validity of his presentation. Since the FCE did reveal evidence of symptom magnification, Dr. Duval opined that | ^Funderburk was at MMI, that an evaluation by a neurosurgeon would not be fruitful, and that pain management treatment was unnecessary. Dr. Duval stated that Funderburk’s entire clinical picture suggested that he was not being valid in his presentation. As his validity was in question, he testified that he looked to the radiological studies. As these did not show any significant compressive lesions, Dr. Duval felt that invasive procedures such as epidural steroids would be inappropriate and that no physical restrictions should be placed on Funderburk.

In refusing his request for indemnity benefits and medical treatment, the workers’ compensation judge reviewed Funder-burk’s medical records. In reaching his decision, he stated that he placed very little weight on the medical reports from LSU, as they were very scant and because the doctors there found a left-sided bulge at L4-5. The workers’ compensation judge noted that no such mention was reported in either of the two MRIs or in the myelo-gram and post-myelogram CT scan. He further stated:

While Dr. Holland admitted there are abnormalities on Mr. Funderburk’s diagnostic testing, he stated that those abnormal findings were not really abnormal for a person over the age of 30 and that based on his clinical evaluation and examinations that there was nothing significant found in the radiological studies. In particular, the myelogram and the post-myelogram CT scans showed no disc herniations. If you look at all the records over the course of time, Mr. Funderburk’s complaints begin at L5-Sl, his sacrum. From there, they seem to move all around his back to both his legs, whether they’re left or right. There was questions asked of Dr. Holland about an annular tear and whether or not a closed MRI was better than an opened [sic] MRI. But the open MRI showed an annulus [sic] tear. Dr. Holland reviewed the films. He said there was nothing significant there. The physicians who saw Mr. Funderburk at LSU-Shreveport subsequent to the MRI — the closed MRI didn’t make any mentions about any annular tear. They find a L4-L5 left sided bulge. I don’t know. It’s not mentioned in the report from the closed MRI and it certainly wasn’t there in the MRI in |1sAugust of 2003. Nothing was there on the myelo-gram and post-myelogram CT scan.
Essentially, what I have here is a case where the only thing consistent in behalf of Mr. Funderburk’s case is the inconsistency of all of his presentations to all the various physicians, the inconsistencies affirmed by the FCE performed in July of 2004. I pledge great reliance on the testimony and examinations of Dr. Holland and Dr. Duval above those at LSU-Shreveport. I find that Mr. Funder-burk has failed to prove by a reasonable preponderance that he is entitled to pain management, that he’s entitled to a neu-rosurgical evaluation. I also find that Mr. Funderburk has failed to prove that he is entitled to any further workers’ compensation benefits. He has a full release from Dr. Holland and Dr. Duval. The records from LSU-Shreveport make no mention of his working capacity.

After reviewing the record exhaustively, we find that the workers’ compensation judge was clearly wrong in finding that Funderburk was at MMI, that he is no longer entitled to indemnity benefits, and that he is not entitled to any further medical treatment. All of the diagnostic tests reveal that Funderburk has protruding discs at multiple levels. The August 15, 2003 MRI found bulging discs at L2-3, L3-4, L4-5, and L5-S1, with the bulge at L3-4 being left paracentral, the one at L4-5 being somewhat central/right paracen-tral, and the one at L5-S1 being slightly more prominent centrally. The myelo-gram and the post-myelogram CT scan also revealed generalized disc bulging at L2-3, L3-4, and L4-5, whereas the post-myelogram CT revealed generalized bulging at L3-4 and L4-5. Neither of these tests stated whether the bulging was right, left, or centrally located. The November 24, 2004 MRI revealed degenerative changes and disc desiccation at L3-4, L4-5, and L5-S1, with a disc protrusion focal at L4-5 mostly compromising the left lateral recess and anterolateral epidural space.

| uWhiIe Dr. Holland said that these findings are fairly common and are considered normal in most cases, he admitted that they are still objective, abnormal findings. Regardless of them, he found no need for surgical intervention. Despite this finding, Dr. Holland admitted that it did not rule out whether Funderburk was indeed suffering from back pain or a back injury. He limited his opinion to the need for surgery.

In addition to the diagnostic tests, Fun-derburk exhibited objective findings via muscle spasms noted in his lumbar spine on numerous occasions. Dr. Raffai noted the presence of muscle spasms every time he examined Funderburk. Muscle spasms were also noted in the emergency room records of St. Frances Cabrini on April 15, 2004, and on three different occasions when he was examined at LSU, the latest being December 30, 2004. We find that these are definitely objective findings.

With regard to LSU’s medical records, the workers’ compensation judge stated that he did not place any significant weight on them as they were scant and because depositions were not taken of the physicians. However, in examining the record, we find that none of the examining physicians’ medical records contain much information. Funderburk was examined four times by Dr. Raffai, twice by Dr. Duval, and once by Dr. Holland. He was examined on four different occasions at LSU, in addition to receiving the epidural steroid injection. Although depositions were taken from Drs. Holland and Duval, we do not feel that greater emphasis should be given to their medical records, as we find that Funderburk has, in reality, received very little | ^treatment for his condition. All that has been determined is that Drs. Holland and Duval found no need for surgery.

On the issue of symptom magnification, we find that this was noted only twice in Funderburk’s records, first by Dr. Duval and then in the FCE report. Dr. Duval found Funderburk positive for two of four Waddell’s signs; the FCE noted that he was positive for two of five signs. However, Bardarson stated that a positive for three of five would be clinically significant. No Waddell’s signs were noted by Dr. Holland, who stated that he looked for such findings, and none were noted in either Dr. Raffai’s medical records or in the medical records from LSU. Moreover, Dr. Katz stated, in response to a question from Funderburk’s attorney, that he did not feel that Funderburk would be capable of withstanding a comprehensive FCE, as he had not yet initiated treatment for his condition.

After considering the foregoing evidence, we find that Funderburk has carried his burden of proving that he is still temporarily, totally disabled. At his December 15, 2004 examination, Dr. Raffai, who is Funderburk’s choice of treating orthopaedic surgeon, restricted him from working after noting point tenderness, stiffness, trouble walking, severe stiffness and muscle spasms at L5-S1, and radiculo-pathy in both legs during his examination. We further find that he has proven by a preponderance of the evidence that he is entitled to further medical treatment, more specifically, pain management treatment and a consultation with a neurosurgeon. Even Dr. Holland felt that an evaluation by a neurosurgeon would be helpful if other physicians discovered inconsistencies in his condition. The finding of nerve root compression by the physicians at LSU is such an inconsistency.

j 1fiAccordingly, we find that the workers’ compensation judge erred in terminating Funderburk’s temporary total disability benefits as of November 22, 2004. The judgment of the workers’ compensation judge is reversed and judgment is now rendered ordering those benefits reinstated. We further find that the workers’ compensation judge erred in finding that Funderburk was not entitled to pain management treatment and consultation with a neurosurgeon of his choice. Nabors is, hereby, ordered to authorize both. Moreover, based on the foregoing findings, Na-bors’ assignment of error is rendered moot.

PENALTIES AND ATTORNEY’S FEES

In his neict assignment of error, Funder-burk argues that the workers’ compensation judge erred by finding that Nabors was not arbitrary and capricious in failing to authorize the requested medical treatment.

An employer avoids the imposition of penalties and attorney’s fees by satisfying its continuing obligation to investigate, assemble, and assess factual information prior to it denying benefits. Wright v. Cypress Gen. Contractors, Inc., 05-700 (La.App. 3 Cir. 12/30/05), 918 So.2d 526.

In this instance, Sarkies terminated Funderburk’s indemnity benefits and refused to authorize any further medical treatment based on Drs. Duval and Holland’s determination that he had reached MMI by September 16, 2004 and November 22, 2004, respectively. Funderburk’s weekly indemnity benefits of $416 were terminated on October 14, 2004. Following the rendition of Drs. Duval and Holland’s opinions, Nabors received notice of Dr. Raffai’s December 15, 2004 medical report and his off-work slip for Funder-burk by a December 16, 2004 letter from his counsel. It also |17learned of LSU’s medical records in a January 4, 2005 letter. Additional information, including that pertaining to the January 5, 2005 epidural steroid injection, was sent on March 5, 2005, although Nabors insisted that it did not receive this information until the morning of trial. The matter proceeded to trial on April 12, 2005.

Sarkies said that he never personally received the above-stated information, although they were received by Nabors’ counsel. However, he stated that he would not have provided this information to Drs. Duval or Holland, as they had already said that no further testing or treatment was necessary. Based on this information, we find that Nabors was arbitrary and capricious in failing to investigate Funderburk’s claim in light of its reliance on Drs. Duval and Holland’s opinions. Accordingly, we award Funderburk $2000 in penalties and his award of attorney’s fees to increase it from $2000 to $5000 as a result of Nabors failure to further investigate his claim and to authorize further medical treatment.

ANSWER ON APPEAL

Finally, Funderburk has answered Na-bors’ appeal requesting that he be awarded further attorney’s fees based on the work performed by his counsel on appeal. Based on our decision, we award him an additional $3000 for attorney’s fees.

CONCLUSION

For the foregoing reasons, the workers’ compensation judge’s judgment is affirmed in part, amended in part, and reversed in part. Judgment is now rendered in favor of the plaintiff-appellant, Jeffery Funder-burk, finding that he is temporarily, totally disabled and entitled to weekly indemnity benefits of $416 per week and further medical treatment in the form of pain management treatment and a | ^neurosurgical evaluation. It is further ordered, adjudged, and decreed that Funderburk is awarded an additional $2000 in penalties, and we amend his award of attorney’s fees to increase it to $5000 for the failure of Nabors Drilling USA, Inc. to further investigate his claim and to authorize further medical treatment. We also award him an additional $3000 in attorney’s fees for additional work performed on appeal. The costs of this appeal are assessed to the defendant-appellee-appellant, N abors Drilling USA, Inc.

AFFIRMED IN PART; AMENDED IN PART; REVERSED IN PART; AND RENDERED.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    Amanda R. ARRINGTON, Plaintiff-Appellant v. Larry D. ARRINGTON, Defendant-Appellee.
    No. 41,012-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 26, 2006.

      Loomis & Dement, by Albert E. Loomis, III, Monroe, for Appellant.
    Dollar Laird, L.L.P., by Johnny E. Dollar, Monroe, for Appellee.
    Before GASKINS, CARAWAY and PEATROSS, JJ.
   CARAWAY, J.

Lin this case, following an initial trial rejecting appellant’s claim for domestic abuse protection, the record of this divorce and family law proceeding was sealed. After a violation of the trial court’s order, the appellant was first held in contempt of court in 2001 for her continuing publication of her claims for domestic abuse. The present appeal concerns the court’s second judgment of contempt against appellant and its order of child support in favor of appellee. Finding that appellant’s constructive contempt was not proven beyond a reasonable doubt, we reverse the trial court’s ruling on contempt. After amending the amount of the child support award, we affirm the judgment of child support.

Facts

Amanda Arrington McDowell (“Amanda”) and Larry D. Arrington (“Larry”) were married on March 18, 1990, and were last domiciled together as husband and wife in Union Parish. The marriage was terminated by judgment of divorce on May 31, 2002. The parties have joint custody of their only biological child, Haley, who is presently 12 ½ years old. An older child whom Larry adopted named Briana is now over age 18.

The issues in this proceeding involve Amanda’s payment of support for Haley, for whom Larry is now the domiciliary parent, and the trial court’s finding of Amanda in contempt for certain charges of domestic abuse by Larry that she communicated to others, allegedly in violation of a prior gag order imposed by the court. Amanda’s charges, which were determined as unfounded by the trial court, were allegedly detrimental to LLarry’s employment as an officer and bailiff with the Union Parish Sheriffs Department.

Amanda filed her initial petition on September 4, 2001, requesting relief, including a temporary restraining order for domestic abuse protection under La. R.S. 46:2131, et seq. The hearing was set for September 17, 2001. Eight days later, Amanda sued Larry for divorce, alleging that they were physically separated on September 4, 2001. Amanda requested sole custody of Haley, and the designation as domiciliary parent of Briana. The divorce petition also requested that the temporary restraining order be converted to a preliminary injunction.

An initial consolidated hearing occurred on September 17, 2001. Though no transcript of that proceeding is in the record, the October 5, 2001 judgment which resulted from the hearing indicates that Amanda’s charges for domestic abuse were not established by her evidence presented at the hearing and were denied. Additionally, the judgment provided that “each party shall refrain from making disparaging comments of any kind about each other to the minor children; and shall also refrain from harassing or annoying conduct directed at each other.” The parties entered stipulations concerning joint custody of Briana and Haley and mutual psychological evaluations. The interim ruling designated Amanda as the domiciliary parent of both children, set Larry’s visitation schedule including telephone contact, and ordered him to pay child support. Notably, the minutes of the September 17th hearing and the October 5, 2001 judgment reflect that the record was sealed.

|sOn September 27, 2001, Amanda enrolled new counsel and filed an amended and supplemental petition for divorce, which reasserted allegations contained in the original petition for domestic abuse protection. A temporary restraining order issued on September 27, 2001. On October 5, 2001, Larry filed a motion to vacate the September 27th order and for sanctions. The following week, on October 12, 2001, Larry filed his first rule for contempt, alleging Amanda’s violation of the court’s October 5, 2001 judgment. The contempt charges arose out of a public incident between the parties at the church they both attended. The hearing on the contempt rule occurred on October 22, 2001. The judgment found Amanda in contempt, ordered her to jail for 24 hours or until she paid a fíne of $250, and cast her in judgment for Larry’s attorney’s fees totaling $900 and all costs. The minute entry states: “Mr. Arrington is allowed to have contact with the children and the parties are prohibited from harassing one another.”

The partial transcript for the hearing on the 2001 contempt ruling reveals the following basis for the trial court’s dissatisfaction with Amanda’s conduct in the community in light of its prior ruling finding no evidence of Larry’s abuse and its order sealing the record:

THE COURT: ... There’s no evidence of any misconduct by Mr. Arrington. Now, Mrs. Arrington sat right here in the courtroom while the Court ordered the record to be sealed because of the allegations by Mrs. Arrington towards Mr. Arrington. And what does she do in response to that? She makes copies of the amended and supplemental petition and passes them out to her friends at the church.
⅜ ⅜ ⅜
She came to court on the 17th and she didn’t get what she wanted. She got, probably, angry at everybody here who ruled against her and she was going to get back to Mr. Arrington by [4doing what she did, which led to the pleadings of September the 27th.
It is a very difficult thing to un-ring a bell. It’s impossible to un-ring a bell. And what you have said to the members of your church and what you have said in the community about your husband’s behavior is disgusting. You have spread rumors that you can’t prove. You have spread ideas in the minds of these people that you can’t undo.
If we have to come back on another rule of this type you know what the consequences are.

As a result of a two day trial in March, 2002, concerning incidental matters including child custody, the parties were awarded joint custody with Larry designated as domiciliary parent of Haley. No child support was ordered to be paid to either party but, in conformity with the trial court’s reasons, the judgment of May 31, 2002, provided as follows:

Child support shall be equally divided, with Mrs. Arrington paying for all the support of Briana and Mr. Arrington paying for all the child support of Haley. Both parents being employed with benefits, each shall carry the child in their domicile on their medical insurance coverage with their employer at their expense.

Significantly, in the trial court’s prior written reasons for the judgment concerning custody, the court found:

There is a history of Mrs. Arrington repeatedly making serious, but false, malicious allegations to law enforcement personnel, nurses, school workers and church members about the alleged abuse which she attributed to Mr. Arrington. The Court finds Mrs. Arrington’s testimony to be unreliable, untruthful and beyond belief. It is therefore rejected.

The court also denied Amanda’s request for relief under the Post Separation Family Violence Relief Act in the May 2002 ruling.

The matters which have resulted in this appeal began when Larry filed his second rule for contempt on November 9, 2004, alleging that | BAmanda had written two letters in violation of the court’s gag order. One month later, Larry filed a second motion requesting child support for Haley because Amanda’s reciprocal support obligation had been altered when the older child turned eighteen in 2003. Amanda thereafter filed her own rule for contempt, alleging Larry’s interference with her telephone contact with Haley during two intervals, violating the joint custody judgment dated May 31, 2002.

At the hearing on these rules, Amanda, Larry and Sheriffs Deputy Flora Ebarb testified. At the time of the hearing, Amanda had married John McDowell and Larry had been terminated in February 2005 from his employment with the Sheriffs Department. After hearing testimony and receiving evidence, the case was submitted. The trial court, in written reasons, found that Larry had no income, and that Amanda’s income from her employment as a teacher and from other sources was $52,500 annually. Additionally, the trial court determined that she derived a benefit of $1,000 monthly in reduced living expenses from her husband’s $48,000 annual income. The trial court ordered Amanda to pay $750.00 per month child support for Haley until she turned 19. Larry was found free of contempt. The trial court found Amanda in contempt as follows:

The Court finds Mrs. McDowell to be in constructive contempt of Court and now fines her $1,000.00, to be paid within 15 days to be paid into the Criminal Court Fund of Union Parish through the Sheriff and/or Police Jury offices of that Parish. Having found Mrs. McDowell guilty of contempt on a previous occasion in this matter, and having Mrs. McDowell ignore the orders of this Court a second time, the Court now sentences Mrs. McDowell to 15 days in the Parish Jail, of which the last 10 days are suspended and she is placed on probation with a special condition that she not write to any of the 135 people on Dher mailing list and that she not talk about Mr. Arrington to anyone except her attorney for two years.

Finally, the trial court ordered Amanda to pay Larry’s attorney’s fee in the sum of $3,975 plus all costs, within thirty days. The judgment in conformity therewith was signed on August 24, 2005. It is from this judgment that Amanda appeals.

Discussion

I.

Larry’s motion for contempt alleged that Amanda violated the court’s 2001 order sealing the record on the grounds that she had transmitted letters to “Friends and Family” in 2003 and 2004. Larry asserted that these letters revealed information to third parties about this suit which caused Larry embarrassment and humiliation in the community. Larry requested attorney’s fees, interest and costs in connection with his prosecution of Amanda’s violation of the court’s order. The trial court considered these letters and others and found Amanda in contempt, awarding the requested attorney’s fees.

Initially, we note that the punishment imposed upon Amanda for five days in jail was unconditional and thus criminal, rather than civil, in nature. Rights attendant to criminal prosecution are therefore implicated. Brown v. Taylor, 31,352 (La.App.2d Cir.2/26/99), 728 So.2d 1058. In Hicks on Behalf of Feiock v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988), the United States Supreme Court explicitly stated that criminal contempt must be proven “beyond a reasonable doubt.” Notably, we find that the criminal punishment applicable to this contempt is the misdemeanor |7penalty set forth under La. R.S. 13:4611(l)(d). The potential 12-month penalty under La. R.S. 13:4611(l)(b), applicable to contempt resulting from violations of injunctive relief requested by the parties, is inapplicable since Larry never obtained a temporary restraining order, preliminary injunction or permanent injunction pursuant to La. C.C.P. arts. 3601, et seq.

Amanda argues that there was no clear injunctive order by the trial court specifically restraining the conduct which gave rise to her present contempt conviction. The prior order sealing the record is, according to Amanda, insufficiently vague in its implications to justify the criminal contempt found in this case.

“Wilful disobedience of any lawful judgment, order, mandate, writ, or process of the court” constitutes a eonstruc-five contempt of court. La. C.C.P. art. 224(2). To find a person guilty of constructive contempt, it is necessary to find that the contemnor violated the order of court intentionally, knowingly, and purposely, without justifiable excuse. Swan v. Swan, 35,393 (La.App.2d Cir.12/7/01), 803 So.2d 372; Estate of Graham v. Levy, 636 So.2d 287 (La.App. 1st Cir.4/8/94), writ denied, 639 So.2d 1167 (La.1994). The trial court is vested with great discretion in 1 Rdetermining whether a person should be held in contempt for disobeying a court order. Estate of Graham v. Levy, supra. However, proceedings for contempt are strictly construed and extending their scope is not favored. Meek v. Meek, 36,467 (La.App.2d Cir.9/18/02), 827 So.2d 1191.

Since this contempt involves unconditional punitive punishment, the so-called “void-for-vagueness” doctrine used for the measure of a criminal statute is a proper consideration. See, State v. Hair, 00-2694 (La.5/15/01), 784 So.2d 1269. Just as a criminal statute under that doctrine must give adequate notice to an individual that certain contemplated conduct is proscribed, the trial court’s directive that ultimately leads to a charge of constructive contempt must give such notice.

Addressing the trial court’s issuance of an order sealing the record and placing a gag order on the parties, the court in Sanders v. Gore, 95-660 (La.App. 3d Cir.7/10/96), 676 So.2d 866, 874, unit denied, 96-2072 (La.11/15/96), 682 So.2d 762, observed:

La.Code Civ. P. art. 1631 provides the trial court with the power “to require that the proceedings shall be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings at the trial, so that justice is done.” Furthermore, under La.Code Civ. P. art. 191, the trial court possesses inherently all of the power necessary for the exercise of its jurisdiction even though not expressly granted by law. This power certainly extends to issuance of protective orders to assure the fair administration of justice under proper circumstances. Economy Carpets Mfrs. & Dist., Inc. v. Better Bus. Bureau of Baton Rouge, La., 319 So.2d 783 (La.1975).

Amanda’s early petitions to the court for domestic abuse protection alleged that Larry physically abused and threatened her and the children and that these actions arose out of his past anger. Additionally, allegations of | fl“sexually abhorrent behavior” were charged. After an evidentiary hearing on these allegations, the court found no abusive conduct by Larry, and the record was sealed. Soon thereafter Amanda was first held in contempt in 2001 for publicly accusing Larry of similar misconduct and publicizing the pleadings of this suit charging Larry with abuse. The trial court’s directives to Amanda proscribing this conduct gave clear notice and go beyond the order which merely sealed the record. We therefore find that Amanda could easily understand that which the trial court expected of her in these proceedings concerning her communication of these false (and sealed) charges of Larry’s misconduct during their marriage.

We will next review whether the evidence showed beyond a reasonable doubt that Amanda’s conduct in the present matter violated the trial court’s orders. In this regard, Larry presented copies of nine letters written between July 2002 and December 2005 which Amanda mailed to one hundred or more of her friends and family. These people included fellow members of her church in Farmerville and other acquaintances which she had made through her Christian ministry work in various churches in Louisiana and elsewhere. The letters updated developments in Amanda’s life and Christian endeavors, and in all the letters, Amanda sought prayer from her network of friends or “prayer partners.” The letters also describe in general terms the ongoing custody proceedings concerning Haley and a property settlement dispute between herself and Larry. In three of these letters written in the summer of 2002, she first reported the trial court’s recent custody ruling granting Larry primary custody of Haley. She then Imdescribed in a second letter a dispute over summer visitation with Haley which threatened the summer travel for her ministry work. She concluded the letter asking for prayers for the resolution of the dilemma, including the following:

I need someone to pray for Judge Cunningham. I don’t even know what to tell you to pray. Larry Arrington needs prayer. He is so angry.

One week later, she reports in a third letter, a resolution of the conflict over her summer travel with Haley on her ministry trip. She concludes for requests for prayer that:

... the judge be led by the Lord. Also, please remember to pray for Larry. I will know this man the rest of his life. I really believe he loved me once, and although I don’t believe we will ever get back together, we still need to get along.

The remaining six letters throughout 2002, 2003, 2004 and 2005 describe generally the course of her ongoing litigation.

From our review of these letters, there is one statement quoted above regarding Larry’s 2002 anger over the custody dispute. Otherwise, the letters only describe without detail the litigious positions of the former spouses in the ongoing proceedings. The letters do not evidence any repeated communication of the allegations of Amanda’s domestic abuse petitions which the trial court determined as untrue and which prompted the original sealing of the record. Likewise, when Larry’s 2005 dismissal from employment with the sheriffs department was discussed at the trial by another employee of that office, there was no evidence that Amanda made disparaging charges or communications to the department after the fall of 2001 which caused Larry to lose his job. Of course, Amanda’s original ^unsubstantiated allegations about Larry were known by the sheriff in 2001 before the record was sealed. Nevertheless, the testimony of Larry’s dismissal did not indicate that he was fired because of Amanda’s complaints.

In finding Amanda in contempt, the trial court first noted that the impropriety of Amanda’s initial petition accusing Larry of “domestic abuse, battery, and horrible, disgusting and reprehensible behavior” led to the sealing of the record. The court then ruled as follows:

The Court finds that Mrs. McDowell has continually spread malicious, false and derogatory information into Farmerville about Mr. Arrington, leading to his dismissal as a Deputy Sheriff in February 2005. There were four complaints about Mr. Arrington in his sheriffs office personnel file, but according to the testimony of the Chief Civil Deputy on May 27, 2005, “these complaints were not unusual” (for a Union Parish deputy). This Court finds that the sole and proximate cause of Mr. Arrington being dismissed as a Deputy was the continuing, unrelenting abuse and permeating rumors released into the community gossip mill by Mrs. McDowell, reflecting directly on Mr. Arrington and the Union Parish Sheriffs Department.

From our review of the record, the trial court’s conclusion that Amanda’s charges against Larry during August-Oetober 2001 ultimately cost him his job may be reasonable despite contrary testimony of the sheriffs civil deputy. Nevertheless, Amanda was already held in contempt for that conduct in 2001. The court’s conclusion therefore had no relevance for the present contempt charge which must be adjudicated on the basis of its directives to Amanda proscribing her conduct thereafter and on the content of her nine letters which Larry asserted as the relevant contemptuous conduct.

|12From our review, those letters clearly do not communicate the sealed allegations of “reprehensible behavior” recognized by the trial court as improperly asserted. There is no evidence that Amanda repeated those false charges after October 2001. The reason for sealing the record was aimed at those false charges. However, the order sealing the record was not accompanied by a general gag order prohibiting either party from commenting to persons other than counsel concerning the further course of the proceedings which was unrelated to Amanda’s descriptions of Larry’s actions before the parties’ separation. Amanda was only instructed orally by the court to refrain from further spreading those charges which the court determined to be false and malicious, and each party was generally instructed not to harass the other. The letters do not republish the allegations of “reprehensible behavior,” and they do not amount to any harassment of Larry.

Accordingly, we find the trial court’s ruling that Amanda continued to spread the unsubstantiated and sealed charges against Larry after October 2001 unsupported by the evidence. The criminal contempt now imposed must be shown to rest on the wilful disobedience of a specific directive of the court proven beyond a reasonable doubt. The trial court’s judgment for contempt against Amanda and the award of attorney’s fees are reversed.

Job11-

In contrast to the imposition of the punitive contempt for Amanda’s conduct, the trial court’s refusal to hold Larry in contempt is afforded much discretion, as it falls outside the strict measures of the criminal law. Amanda’s rule for contempt alleged that Larry did not allow telephone contact with Haley during two intervals, between February 1 and April 9, 2004 (a period of 58 days), and between December 30, 2004 and mid-January 2005, when the motion for contempt was filed. She alleged that when she called Haley, Larry did not permit Haley to come to the phone, and that such conduct violated the “spirit” of the May 31, 2002 joint custody judgment.

The joint custody judgment designated Larry the domiciliary parent of Haley. Amanda testified that when Larry’s allegedly contemptuous conduct took place, Haley was 10 or 11. The custody judgment awarded visitation to Amanda every other weekend from 5:00 p.m. on Friday to 5:00 p.m. on Sunday, and divided the summer vacation period equally. Thus, Amanda’s alternating weekend schedule was in place during the school year, when the alleged violations of the custody judgment occurred. The judgment is silent concerning specific telephone visitation for either party-

Under the circumstances, it cannot be overlooked that Amanda had ample opportunity by the exercise of her weekend visitation right to communicate with Haley during the 58-day period in question. Regardless of Amanda’s contentions that Larry surreptitiously prevented telephone communications, the trial court’s weighing of such parental misconduct |udoes not automatically require the imposition of contempt. Credibility issues were clearly involved in the court’s ruling, and the appellate court will not disturb the discretion of the trial court under these circumstances. Amanda’s assignment of error is without merit.

III.

Finally, we have combined Amanda’s first and third assignments of error regarding the trial court’s judgment in Larry’s favor ordering the payment of $750/ month child support until Haley reaches age 19. The trial court found that Larry had no income and that Amanda’s annual income was $52,500. Additionally, Amanda’s living expenses were reduced by $1,000/month due to her new husband’s employment and annual income totaling $48,000. Amanda argues that due to the circumstances of Larry’s termination, he should be deemed voluntarily unemployed. Additionally, the expense sharing figure attributed to supplement Amanda’s income is contested in view of her testimony that only $450 per month was the total of shared expenses. Lastly, since child support terminates at age 18 under La. R.S. 9:315.22(C), Amanda disputes the judgment’s language extending support until Haley reaches age 19.

The issues raised by Amanda primarily involve the application under the support guidelines of La. R.S. 9:315(0(5) which provides as follows:

(5) “Income” means:
(a) Actual gross income of a party, if the party is employed to full capacity; or
(b) Potential income of a party, if the party is voluntarily unemployed or underemployed. A party shall not be deemed voluntarily unemployed or underemployed if he or she is | ^absolutely unemployable or incapable of being employed, or if the unemployment or underemployment results through no fault or neglect of the party.
(c)The court may also consider as income the benefits a party derives from expense-sharing or other sources; however, in determining the benefits of expense-sharing, the court shall not consider the income of another spouse, regardless of the legal regime under which the remarriage exists, except to the extent that such income is used directly to reduce the cost of a party’s actual expenses.

When determining whether a party is underemployed for purposes of calculating a child support obligation, the court shall consider that party’s earning capacity in light of all circumstances. Luplow v. Luplow, 41,021 (La.App.2d Cir.2/28/06), 924 So.2d 1135. A trial court has wide discretion in assessing a witness’s credibility in situations concerning an obli-gor spouse’s alleged voluntary unemployment, and this court has held that such factual determinations will not be disturbed on appeal absent an abuse of that discretion. See, Lwplow v. Luplow, Id. Voluntary underemployment is a question of good faith of the obligor spouse. Wyatt v. Wyatt, 39,518 (La.App.2d Cir.4/6/05), 899 So.2d 788.

An award of child support continues with respect to any unmarried child who attains the age of majority as long as the child is a full-time student in good standing in a secondary school, has not attained the age of nineteen, and is dependent on either parent. La. R.S. 9:315.22(0), Curtis v. Curtis, 34,317 (La.App.2d Cir.11/1/00), 773 So.2d 185.

Amanda’s argument concerning Larry’s unemployment insists that the trial court was wrong in its conclusion, discussed above, that her | ^allegations cost him his job. Nevertheless, that dispute is irrelevant for consideration of “potential income” under La. R.S. 9:315(C)(5)(b), because Larry’s involuntary dismissal from the sheriffs department and his unemployment are undisputed facts. The question under the statute is simply whether Larry was shown at trial to have income potential but had neglected to regain meaningful employment. At the time of the May 27, 2005 trial, Larry had been unemployed for three months following his dismissal as a deputy. He testified concerning his attempts to find employment with other law enforcement agencies and the possibility of relocation out of the Farmerville area. From this testimony, we find that the trial court could conclude that Larry’s unemployment or underemployment did not result from his fault or neglect. Child support review is a matter of the trial court’s continuing jurisdiction for modification which may measure Larry’s future efforts in obtaining employment and adjust the support obligation accordingly. La. C.C. art. 140; La. R.S. 9:311.

Likewise, we find no error in the trial court’s determination that Amanda’s yearly income was $52,500. The large and variable amount of oil and gas royalties (based on 2004 receipts) which supplemented her income as a public school teacher permits that assessment. Also, the evidence of John McDowell’s annual income supports the additional $1,000 per month for Amanda’s expense-sharing benefit. Her total monthly income under the guidelines is therefore $5,375, which yields a basic child support obligation l17of $733. La. R.S. 9:315.19. The trial court’s monthly award of $750 will therefore be amended to $733 in accordance with the statutory schedule.

Lastly, the language of the judgment extending the support obligation for Haley to age 19 is of course subject to the application of La. R.S. 9:315.22(C). The support obligation will end when Haley reaches age 18 unless Larry demonstrates facts of continued dependency during her secondary education as set forth in the law.

Concliision

The ruling of the trial court holding Amanda in contempt and awarding attorney’s fees is reversed. The award of child support to Larry in the amount of $750 per month is amended to $733 per month. In all other respects the judgment is affirmed. Costs of appeal are assessed equally to both parties.

REVERSED IN PART AND AMENDED IN PART; AFFIRMED AS AMENDED.

      . La. R.S. 13:461 l(l)(b) and (d) provide as follows:
      Except as otherwise provided for by law:
      (1) The supreme court, the courts of appeal, the district courts, family courts, juvenile courts, and the city courts may punish a person adjudged guilty of a contempt of court therein, as follows:

      (b) For disobeying or resisting a lawful restraining order, or preliminary or permanent injunction, by a fine of not more than one thousand dollars, or by imprisonment for not more than twelve months, or both, except in juvenile courts and city courts, in which punishment may be a fine of not more than one thousand dollars or imprisonment for not more than six months, or both.

      (d) For any other contempt of court, including disobeying an order for the payment of child support or spousal support or an order for the right of custody or visitation, by a fine of not more than five hundred dollars, or imprisonment for not more than three months, or both.

      . We note that Larry cites no statutory basis for any award of attorney’s fees for a contempt ruling under La. R.S. 13:4611 or otherwise. Attorney's fees are not allowed except where authorized by statute. Maggio v. Robinson, 31,913 (La.App.2d Cir.5/5/99), 741 So.2d 103.

      . The court’s conclusion regarding the cause of Larry’s dismissal was reached in its opinion concerning Amanda's contempt and was gauging Larry’s income potential, not presented as a relevant consideration for


author: THIBODEAUX, Chief Judge.

text:
    SUPREME SERVICES AND SPECIALTY CO., INC. v. SONNY GREER, INC., et al.
    No. 2004-1400.
    Court of Appeal of Louisiana, Third Circuit.
    May 3, 2006.
    Rehearing Denied June 28, 2006.

      Richard D. Chappuis, Jr., Yoorhies & Labbe, Lafayette, LA, for Defendant/Ap-pellee, Melvin J. Oubre.
    David W. Groner, New Iberia, LA, for Defendants/Appellants, Sonny Greer, Inc. and Bridgette Greer.
    James Ryan, III, James Ryan III & Assoc., LLC, New Orleans, LA, for Defendants/Appellees, AXA Global Risk U.S. Insurance Co.
    Cynthia J. Thomas, Galloway, Johnson, Tompkins, Burr & Smith, Mandeville, LA, for Defendant/Appellee, Sonny Greer, Inc. d/b/a Sonny Greer Construction Company, Inc.
    William Lee Melancon, Melancon & Associates, L.L.C., Lafayette, LA, for Plaintiff/Appellee, Supreme Services and Specialty Co., Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   THIBODEAUX, Chief Judge.

|-[Supreme Services and Specialty Co., Inc. sued Sonny Greer, Inc. to recover for defective work on a construction project. Greer third-partied its commercial general liability provider, AXA Global Risk U.S. Insurance Co., which promptly filed a motion for summary judgment and asserted a lack of coverage. Greer filed its own motion for summary judgment and contended that its insurance policy provided coverage. The trial court determined that the insurance policy did not cover the damages resulting from the alleged defective work-product of the contractor and its subcontractors.

We reverse the judgments of the trial court and render. The subcontractor exception to the work-product exclusion of the insurance contract renders the exclusion inapplicable. Further, the commercial general liability policy provides coverage under its “products-completed operations hazard” provision.

With regard to the motion to strike filed in this court, we decline to strike the ap-pellee brief of the insurer, but we will disregard any references and arguments pertaining to the unpublished decision discussed in and attached to the insurer’s appellee brief.

I.

ISSUES

We must decide whether the policy of insurance at issue herein provides coverage for the work-product damages claimed by the plaintiff.

II.

FACTS AND PROCEDURAL HISTORY

Supreme Services and Specialty Company, Inc. (Supreme) contracted-with Sonny Greer, Inc., d/b/a Sonny Greer Construction Company, Inc. (Greer) in [ ¡.December 1996, for the construction of a commercial building on a lot owned by Supreme. Several subcontractors were involved in the construction project, and in delivering and pouring the concrete for the slab of the building and for the parking lot. Supreme complained of cracks in the concrete slab and parking lot soon after the concrete was poured. Greer cut out a section of the cracked concrete slab and poured a new slab in that section. Supreme continued to complain of cracks in the concrete and drew up a warranty agreement, which Greer and its agents signed.

According to Greer, Supreme continued to complain about the cracks, and Greer made several additional but unsuccessful attempts to satisfy Supreme. The cracks continued to worsen. After completion of the construction project, Supreme filed suit alleging breach of contract and breach of the warranty agreement. Greer filed an answer and a third party demand against its insurer, AXA Global Risk U.S. Insurance Company (AXA), pursuant to a commercial general liability (CGL) policy issued to Greer.

AXA filed a motion for summary judgment alleging that the policy specifically excluded coverage for damages arising out of Greer’s work-product. Greer reconvened against AXA seeking a summary judgment declaration that the AXA policy provided coverage for the claims made by Supreme against Greer. The trial court granted AXA’s motion for summary judgment and denied Greer’s motion for summary judgment. Greer filed this appeal. Greer also filed a motion to strike the appellee brief of AXA wherein AXA attached and argued an unpublished opinion.

While several decisions have been previously rendered in this case by another panel of this court, the only issues now before this panel are the trial court’s landings on the motions for summary judgment and our decision on Greer’s motion to strike the appellee brief of AXA. For the reasons set forth below, we reverse the trial court’s judgments on the summary judgment issues. Additionally, while we decline to strike the appellee brief of AXA, we will disregard any references and arguments pertaining to the unpublished opinion.

III.

LAW AND DISCUSSION

Standard of Review

Appellate courts review grants of summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, that is, whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Ocean Energy, Inc. v. Plaquemines Parish Gov’t, 04-66 (La.7/6/04), 880 So.2d 1.

Motion to Strike

Greer contends that AXA has violated Rule 2-16.3 of the Uniform Rules of the Courts of Appeal by arguing and attaching as an exhibit the unpublished decision in Lafayette Consolidated Government v. Taylor Lumber & Treating, Inc., 01-1069 (La.App. 3 Cir. 6/19/02), 825 So.2d 600. Greer alleges that AXA states that the case is attached for informational purposes only and then proceeds to argue the legal theories and conclusions in an attempt to persuade this panel to use the logic and reasoning contained therein. Accordingly, Greer seeks to have AXA’s ap-pellee brief stricken 14or, in the alternative, requests that we strike the portions of the brief which use the logic set forth in the unpublished decision. The pertinent text of the Rules provide:

2-16.3. Publication and Citation
C. Opinions and dispositions marked “Not Designated for Publication” shall not be cited, quoted, or referred to by any counsel, or in any argument, brief, or other materials presented to any court, except in continuing or related litigation. Opinions marked “Not Designated for Publication” shall be filed in the clerk’s office as public records.
2-12.13. Non-conforming Briefs; Sanctions
Briefs not in compliance with these Rules may be stricken in whole or in part by the court, and the delinquent party or counsel of record may be ordered to file a new or amended brief.

Pursuant to subpart (C) of Rule 2-16.3 above, unpublished opinions and/or writ grants with orders should not be cited, quoted, or referred to, and therefore will not be considered by this court. See Uniform Rules — Courts of Appeal, Rule 2-16.3; and see State v. Williams, 02-1030 (La.10/15/02), 830 So.2d 984. However, sanctions are within our discretion pursuant to Rule 2-12.13, and we decline to strike the appellee brief of AXA. We have made it a point not to read the decision complained of, Lafayette Consolidated Government v. Taylor Lumber & Treating, Inc., and shall not refer to it in any way. We will also disregard any references or arguments pertaining to the decision in the brief filed by the third party defendant, AXA.

Rulings of the Trial Court and Language in the AXA Policy

In its reasons for judgment in favor of AXA, the trial court stated as follows:

The issue before the court is whether the “work product” exclusions in the CGL policy exclude coverage to Sonny Greer, Inc. The pertinent exclusion in the policy reads as follows: Property damage to. .[.](6) that particular part of any property that must be restored, | ¿repaired or replaced because “your work” was incorrectly performed on it. 19. “Your work” means: a. work or operations performed by you or on your behalf; and b. Material, parts or equipment furnished in connection with such work or operations.
Upon review, the court concludes that the language of the policy exclusion is clear and unambiguous. A clear reading of the policy can give no other interpretation but that should the plaintiff prevail against the defendant because of faulty workmanship this particular exclusion does exclude the particular work that was incorrectly performed by Sonny Greer on this piece of property. The court does not agree with the opposition argument which asserts that Paragraph L under said subsection “Damage to your Work” creates an ambiguity. The court does not find such ambiguity.

We disagree. Based upon our de novo review of the record in this case, we reverse the judgments of the trial court.

More specifically, the AXA policy provides in pertinent part as follows:

SECTION I — COVERAGES
COVERAGE A. BODILY INJURY AND PROPERTY DAMAGE LIABILITY
1. Insuring Agreement.
a. We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies.
b. This insurance applies to “bodily injury” and “property damage” only if:
(1) The “bodily injury” or “property damage” is caused by an “occurrence” that takes place in the “coverage territory;” and
(2) The “bodily injury” or “property damage” occurs during the policy period.
|fi2. Exclusions.
This insurance does not apply to:
j. Damage to Property
“Property damage” to:
(1) Property you own, rent or occupy;
(5) That particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the “property damage” arises out of those operations; or
(6) That particular part of any property that must be restored, repaired or replaced because “your work” was incorrectly performed on it.
Paragraph (6) of this exclusion does not apply to “property damage” included in the “products-completed operations hazard. ”
(Emphasis added.)
k. Damage to Your Product
“Property damage” to “your product” arising out of it or any part of it.
1. Damage to Your Work
“Property damage” to “your work” arising out of it or any part of it and included in the “products-eompleted operations hazard.”
This exclusion does not apply if the damaged work or the work out of which the damage arises was \iperformed on your behalf by a subcontractor.
(Emphasis added.)
SECTION V — DEFINITIONS
14. [“Products-eompleted operations hazard”]
a. “Products-eompleted operations hazard” includes all “bodily injury” and “property damage” occurring away from premises you own or rent and arising out of “your product” or “your work” except:
(1) Products that are still in your physical possession; or
(2) Work that has not yet been completed or abandoned.
b. “Your work” will be deemed completed at the earliest of the following times:
(1) When all of the work called for in your contract hqs been completed.
(2) When all of the work to be done at the site has been completed if your contract calls for work at more than one site.
(3) When that part of the work done at a job site has been put to its intended use by any person or organization . other than another contractor or subcontractor working on the same project.
Work that may need service, maintenance, correction, repair or replacement, but which is otherwise complete, will be treated as completed,
c.This hazard does not include “bodily injury” or “property damage” arising out of:
ls(l) The transportation of property....
(2) The existence of tools....
(3) Products or operations for which the classification in this Coverage Part or in our manual of rules includes products or completed operations.
15. “Property damage” means:
a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or
b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the “oecur-rence[”] that caused it.
17. ‘Tour product” means:
a. Any goods or products, other than real property, manufactured, sold, distributed or disposed of by:
(1) You;
(2) Others trading under your name; or
(3) A person or organization whose business or assets you have acquired; and
b. Containers (other than vehicles), materials, parts or equipment furnished in connection with such goods or products.
‘Tour product” includes:
a. Warranties or representations made at any time with respect to the fitness, quality, durability, performance or use of “your product;” and
|flb. The providing of or failure to provide warnings or instructions.
19. ‘Tour work” means:
a. Work or operations performed by you or on your behalf; and
b. Materials, parts or equipment furnished in connection with such work or operations.
‘Tour work” includes:
a. Warranties or representations made at any time with respect to the fitness, quality, durability, performance or use of “your work;” and
b. The providing of or failure to provide warnings or instructions.

Subcontractor Exception to Work-Product Exclusion

AXA asserts that the above Exclusions in Section I — Coverages, at 2 j, k, and 1 apply, and that the policy does not cover the work-product of Greer and his subcontractors. AXA relies heavily on Vintage Contracting, L.L.C. v. Dixie Building Material Company, Inc., 03-122 (La.App. 5 Cir. 9/16/03), 858 So.2d 22, which held that almost identical exclusions prohibited coverage. As a threshold matter, we note that Vintage has only persuasive potential rather than precedential value as we are not obliged to follow jurisprudence of other appellate circuits. Moreover, as argued at the hearing on the motions for summary judgment, the Vintage court did not address the second paragraph of part “1” even though it appears in the opinion. The second paragraph of part “1” states that the work-product exclusion does not apply to work done by subcontractors on behalf of the insured. Therefore, it constitutes an exception to the work-product exclusion, and it creates a conflict with part 2 j(5), Imwhich purports to exclude coverage for the work-product of subcontractors as well as the insured.

In Iberia Parish School Board v. Sandifer & Son Const. Company, Inc., 1998-319 (La.App. 3 Cir. 10/28/98), 721 So.2d 1021, a panel of this court reversed summary judgment in favor of the insurer where the policy at issue contained identical language as the AXA policy herein. There, in a landowner’s action against a general contractor to recover for a leaking roof, the contractor third-partied the subcontractor and his CGL provider. The subcontractor policyholder had also subcontracted the actual installation of the roof. Therefore, one of the primary issues in Iberia Parish School Board was the exception to the exclusion for subcontractor work-product in part “1.” After quoting the language in part “1” in full, the panel articulated as follows:

The plain language of this exception to the exclusion renders the exclusion inapplicable when “the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor.”

Id. at 1025.

After finding that the work-product exclusions did not apply on the summary judgment facts of that case, the Iberia Parish School Board panel referenced generally other exclusions argued by the insurer and stated that “if there are other exclusions that are arguably applicable, they would raise questions of ambiguity because there would be conflict between them and the work-product exclusion exception found in SECTION I — COVERAGE A(2)(i).” Id. at 1026.

Accordingly, we find that the subcontractor exception to the work-product exclusion in part “1” herein renders the exclusion in the AXA policy inapplicable. To the extent that other language conflicts with the exception, the In ambiguity created by the conflict also leads to a finding that the work-product of each subcontractor of Greer is covered under the policy.

Insured’s Work-Product and Products-Completed Operations Hazard

Greer argues that the policy also provides coverage under the “products-completed operations hazard” provision of the policy. We agree. Greer asserts that the policy’s declaration page has a line item under “LIMITS OF INSURANCE,” entitled “Products-Completed Operations Aggregate Limit,” that Greer paid a proportionate part of the premium for this coverage, and that the coverage applies in this case. We note that the work-product exclusion contained in Section I, part 2 j(6) contains another exception to the work-product exclusion. In a final paragraph it states that the exclusion from coverage in paragraph (6), for property that must be restored, repaired or replaced due to the incorrectly performed work of the insured, does not apply to “property damage” included in the “products-completed operations hazard.

Accordingly, under Section V — Definitions, No. 14, “products-completed operations hazard” means property damage occurring away from the insured’s premises and arising out of the insured’s completed work-product. Greer argues that the policy language interpreted in light of the line item contained in the declaration page should be construed to provide coverage. In support of his position, Greer cites Mike Hooks, Inc. v. JACO Services, Inc., 95-1485 (La.App. 3 Cir. 5/8/96), 674 So.2d 1125, writ denied, 96-1924 (La.11/1/96), 681 So.2d 1264.

In the Mike Hooks case, the CGL policy at issue again contained almost identical language as that found in the AXA policy herein. There, a dredging company brought suit against an engine repair contractor and its CGL insurer to recover for the contractor’s alleged failure to properly perform the work. The trial 1iacourt granted summary judgment in favor of the insurer based upon work-product exclusions. This court reversed, holding that the policy was ambiguous as to the coverage for products completed operations and therefore had to be construed in favor of coverage. After quoting identical language from the Hooks policy that we cite above in the AXA policy issued to Greer, the panel in Mike Hooks stated as follows:

The policy at issue provides, under the “Limits of Insurance” section on the declarations page, that Acceptance will pay those sums that JACO becomes legally obligated to pay as damages resulting from bodily injury or property damage with a $1,000,000.00 general aggregate limit (other than products-completed operations), as well as $1,000,000.00 products-completed operations aggregate limit. It also provides for a $1,000,000.00 limit for each occurrence.
Acceptance contends that exclusion 2(1) precludes coverage for the harm complained of by Hooks. Exclusion 2(1) provides as follows:
2. Exclusions.
This insurance does not apply to:
* ⅜ *
1. Damage to Your Work
“Property damage” to “your work” arising out of it or any part of it and included in the “products completed operation hazard[.]”
This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor.
The policy at issue here, similar to that found in Kidd [v. Logan M. Killen, Inc., 93 1322 (La.App. 1 Cir. 5/20/94), 640 So.2d 616], clearly provides $1,000,000.00 [sic] in coverage for products-completed operations and then attempts to exclude coverage for this in exclusion 2(1). Aside from the entry in the definition section of the Impolicy for products-eompleted operations hazard, the only reference made to products-eompleted operations coverage is in exclusion 2(1). We are unable to find an unambiguous provision in this policy addressing what the products-eompleted operations coverage, as found on the declarations page, encompasses. As such, we find that the portions of the policy covering products-eompleted operations to be ambiguous. Therefore, we are constrained to interpret these terms in a light favoring coverage.

Id. at 1126-28.

In Iberia Parish School Board, 721 So.2d 1021, the policy at issue also contained identical language with regard to “products-eompleted operations hazard” coverage and with regard to accidents and occurrences, as the AXA policy herein. The panel determined that the leaks in the roof, due to defective workmanship and materials, constituted an “accident” and therefore an “occurrence.” With regard to identical exclusions and “products-completed operations hazard” coverage, the panel articulated as follows:

[In] Kidd v. Logan M. Killen, Inc., 93-1322, p. 10 (La.App. 1 Cir. 5/20/94); 640 So.2d 616, 622, the first circuit recognized that numerous cases hold that “a liability policy with a work product exclusionary clause does not provide coverage to the insured for repair or replacement of the contractor’s own defective work or defective product.” The first circuit then recognized that none of the policies in those cases contained coverage for products-eompleted operations. Since the court was unable to determine from the incomplete record which provisions in the policy before it addressed the products-eompleted operations coverage, it reversed the granting of the motion for summary judgment.

Id. at 1024. Finding that the policies at issue contained products-eompleted operations coverage, that a premium was paid for products-eompleted operations coverage, and that there were limits provided for it, the panel stated:

Products-eompleted operations coverage has been explained generally as follows:
Any insured who manufactured, sold, handled or distributed goods or products was exposed [uto the products hazard, which is [sic] risk of liability arising out of products after they have left the hands of the insured. The completed operations hazard refers to the insured’s exposure to liability arising out of completed work performed away from his premises.
[William S.] McKenzie and [H. Alston] Johnson, [III, Insurance Law and Practice § 183, p. 379, in 15 Louisiana Civil Law Treatise (1996) ].

Id. at 1024-25.

In Iberia Parish School Board, after citing language identical to that in the AXA policy defining “products completed operations hazard,” the panel found that the work-product exclusions applied to products-eompleted operations coverage but did not apply where there were exceptions to the exclusions. The court focused on exclusions “k” and “1” and particularly on the subcontractor exception in exclusion “1,” which was primarily at issue in that case. However, there were references to other exclusions and the ambiguity that would be created if the other exclusions conflicted with the exception to the exclusion for subcontractor work-product.

In the present case, we find that there is again an exception to a work-product exclusion in 2 j(6), which states as follows:

This insurance does not apply to:
(6) That particular part of any property that must be restored, repaired or replaced because “your work” was incorrectly performed on it.
Paragraph (6) of this exclusion does not apply to “property damage” included in the products-completed operations hazard[J”

(Emphasis added.)

We find that the exception renders the exclusion void as to the work-product of the insured with regard to property damage included in the “productsjcomplet-ed15 operations hazard” provision. We further find that Greer paid a premium for and purchased “products-completed operations hazard” coverage, that the section relating to “products-completed operations hazard” coverage is ambiguous as found in Mike Hooks, and that the AXA policy therefore must be interpreted in favor of coverage for the work-product of the insured, Sonny Greer, Inc.

IV.

CONCLUSION

Based upon the foregoing, we decline to strike the appellee brief of AXA, but disregard any references or arguments pertaining to the unpublished decision cited by AXA and attached as an exhibit. We further reverse the judgments of the trial court granting summary judgment to AXA and denying summary judgment to Sonny Greer, Inc. We find that, under the facts of this case, the AXA policy at issue herein provides coverage for the work-product of the insured, Sonny Greer, Inc., and provides coverage for the work-product of the subcontractors of Sonny Greer, Inc. as well.

REVERSED AND RENDERED.

      . In December of 2004, Supreme also appealed the trial court's ruling in favor of AXA. AXA filed a motion to dismiss the appeal alleging that Supreme had never added AXA as a defendant in the main demand and therefore had no standing to appeal the ruling in favor of AXA.
      By Judgment dated January 19, 2005, a panel of this court dismissed the appeal of Supreme. Supreme filed an application for rehearing, alleging that it was error to grant AXA's motion to dismiss Supreme's appeal where Supreme had not had an opportunity to file its opposition to the motion to dismiss.

        On May 18, 2005, the panel granted the rehearing and considered the opposition filed by Supreme.
      By Judgment dated November 16, 2005, the panel again dismissed the appeal filed by Supreme, finding that Supreme did not sue AXA and therefore had no standing to appeal the summary judgment granted in favor of AXA.