author: GREMILLION, Judge.

text:
    Willie L. LOLLIS, Jr. v. SHAW GLOBAL ENERGY SERVICES.
    No. 2007-395.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 3, 2007.

      Louis M. Corne, Lafayette, LA, for Plaintiff/Appellee, Willie L. Lollis, Jr.
    John J. Rabalais, Rabalais, Unían & Lo-rio, Covington, LA, for Defendant/Appellant, Shaw Global Energy Services.
    Court composed of JIMMIE C. PETERS, GLENN B. GREMILLION, and J. DAVID PAINTER, Judges.
   GREMILLION, Judge.

hThe defendant, Shaw Global Energy Services, appeals the decision of the workers’ compensation judge finding the plaintiff, Willie Lee Lollis, Jr., disabled, entitled to indemnity benefits, and entitled to any necessary medical treatment or vocational rehabilitation services as a result of an occupational disease. We affirm.

FACTS

Lollis was employed as a paint mixer/sandblaster by Shaw at its Delcambre, Louisiana location. On November 7, 2004, while mixing Tideguard 171A Gray Resin, a spray-on epoxy cladding from Ameron Coatings, Lollis noticed a bitter taste in his mouth and then saw that he had Tide-guard on his arms. He reported the incident to his supervisors after his arms became irritated. As a result of this contact, Lollis suffered headaches and developed rashes over his body. On January 14, 2005, he was diagnosed as suffering from an irritant dermatitis by Dr. Jennifer-Waguespack LaBiche, a dermatologist. Although Shaw restricted him from working in contact with Tideguard, Lollis quit work on February 13, 2005, because he claimed that the rash had spread to his eyes and affected his vision. A patch test performed by Dr. Waguespack-LaBiche revealed that Lollis was allergic to epoxy resin. Dr. William Nassetta, a specialist in occupational and environmental medicine, diagnosed him as suffering from an allergic contact dermatitis.

Lollis filed the instant disputed claim for compensation against Shaw seeking weekly indemnity benefits, medical treatment, and penalties and attorney’s fees. Shaw denied all of Lollis’ claims and further alleged that he forfeited his right to receive any benefits due to his fraudulent statements. Following a trial on the | ¿merits, the workers’ compensation judge denied Shaw’s fraud claim and held that Lollis was disabled and entitled to weekly indemnity benefits retroactive to February 13, 2005, medical expenses and treatment, vocational rehabilitation services, and future supplemental earnings benefits if appropriate. The workers’ compensation judge further awarded Lollis $2000 in penalties and $7500 in attorney’s fees as a result of Shaw’s failure to accommodate his work restrictions and its failure to provide him with vocational rehabilitation services. This appeal was perfected by Shaw.

ISSUES

Shaw raises six assignments of error on appeal.

1. That the workers’ compensation judge erred in finding that Lollis suffered a compensable accident or occupational injury.
2. That the workers’ compensation judge erred in finding a causal connection between Lollis’ alleged exposure to Tideguard and his alleged disability.
3. That the workers’ compensation judge erred in finding that Lollis proved his disability.
4. That the workers’ compensation judge erred in finding that Lollis was entitled to indemnity benefits and additional medical benefits.
5. That the workers’ compensation judge erred in finding that it failed to reasonably controvert Lollis’ entitlement to benefits.
6. That the workers’ compensation judge erred in finding that Lollis did not forfeit his entitlement to indemnity benefits by making false statements for the purpose of receiving workers’ compensation benefits.

^STANDARD OF REVIEW

The standard of review applied to factual findings in workers’ compensation matters 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).

As stated in Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992):

A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, IS Louisiana Civil Law Treatise, Workers’ Compensation, § 253 (2d Ed.1980). Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses, or friends. Malone & Johnson, supra; Nelson ]v. Roadway Express, Inc., 588 So.2d 350 (La.1991) ]. Corroboration may also be provided by medical evidence. West, supra.

OCCUPATIONAL INJURY

In its first three assignments of error, Shaw argues that the workers’ compensation judge erred in finding that Lollis suffered an occupational injury as a result of his exposure to Tideguard and that he satisfied his burden of proof with regard to disability.

An employee suffering from an occupational disease receives the same workers’ compensation benefits as an employee who has suffered an injury by accident arising out of and in the course of his employment. La.R.S. 23:1031.1(A). |4An occupational disease is defined as “that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.” La.R.S. 23:1031.1(B). However, it does not include carpal tunnel syndrome, degenerative disc disease, spinal stenosis, arthritis, mental illness, or heart-related or perivascular disease. Id.

In order to recover medical and compensation benefits as the result of an occupational disease, Lollis must prove that he became allergic to epoxy resins as a result of the nature of his duties as a sandblaster/painter. Dunaway v. Lakeview Reg’l Med. Ctr., 02-2313 (La.App. 1 Cir. 8/6/03), 859 So.2d 131. Lollis’ burden is to prove a connection between his condition and his work-related duties by a reasonable probability. Id. Proof of only a possible relationship between the two does not satisfy this burden. Id.

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, Lollis 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.

Lollis testified that Shaw began using Tideguard in October 2004, at the request of a customer. He stated that he mixed this coating for approximately three weeks without any problems. However, on November 7, 2004, he stated that he | ^noticed a strong bitter taste in his mouth and that the skin on his arms was irritated. When he removed his rubber gloves, he said that he noticed Tideguard on his arms and that his gloves were imprinted on his arms. He said that he washed his arms and then reported the incident to David Smith, his supervisor.

That night, Lollis testified that he began shivering as though suffering from a fever. The next day, he called Smith and told him that his head was hurting badly and that his arms were irritated. He stated that Smith told him to take care of himself. Lollis returned to work on November 9, 2007, but was taken by David Cravey, Shaw’s safety officer, to MedXcel Occupational Medicine Center because his arms and hands were swollen. He stated that he was examined by James Carruth, a physicians assistant, who injected him with a steroid and released him to work.

Lollis testified that Smith removed him from sandblasting/painting and had him driving a forklift in Shaw’s yard, in an effort to distance him from the Tideguard. Despite this precaution, he stated that he was exposed to overspray and that his rash spread to his chest and his genitals. He stated that he was seen by Dr. Wag-uespack-LaBiche, who prescribed two creams for his rash. Although the creams worked, Lollis testified that the rash continued spreading to his forehead and below his eyes. At that point, he stated that he was having trouble with his vision so he went to the University Medical Center in Lafayette. There, he stated that he was given drops for his eyes and was advised by his doctor not to return to his position with Shaw. Lollis testified that he informed Smith of this and was further advised by him not to return to work.

| ^Lollis continued working for Shaw through February 13, 2005. He testified that he stopped working at that time because his headaches were worse and his chest was hurting. He said that he was taken by his father to Our Lady of Lourdes Hospital in Lafayette. Lollis testified that tests run on his heart were negative and that he was given cream for his itching. However, neither the records from Our Lady of Lourdes or University Medical Center were introduced into evidence. Lollis stated that he was later examined by Dr. Nassetta, who recommended that he undergo a patch test. He returned to Dr. Waguespack-LaBiche, who determined that he was allergic to epoxy resins.

Lollis testified that his symptoms have continued. He stated that he experiences problems with headaches, rashes, stomach sickness, and muscle weakness when exposed to epoxy resins. He said he never experienced any of these symptoms prior to November 7, 2004. He stated that when he touches anything made of foam or plastic he starts itching. He said that he carries a pair of cotton gloves with him, which he uses anytime he touches something made of plastic, such as the steering wheel, phone, cellular phone, or remote control. He stated that he developed a rash on his stomach when the antenna from his cellular phone touched his skin.

At the time of the incident, Lollis testified that he was wearing his full personal protective gear, consisting of a double chamber respirator, rubber gloves, safety goggles, and coveralls. However, he stated that he was wearing the same gloves and coveralls from the previous day. He stated that when he first started mixing Tideguard, he was only required to wear goggles. As they learned more about the coating, he said that Shaw increased the amount of protective equipment they ¿were required to wear. Lollis further indicated that he had gotten Tideguard on his skin prior to the November 7, 2007 incident, but experienced no problems.

Lollis’ father, Willie Lollis, Sr., testified that his son was in good health prior to the November 7th incident, but afterwards, he exhibited a rash on his arms and his eyes. At a later date, he said that Lollis suffered a high fever along with his rash, and that he had to rush him to the hospital. He stated that Lollis’ eyes were so swollen that they were barely open. Lollis, Sr. further testified that Lollis’ condition worsened after he stopped working for Shaw and that it was some time before his rashes disappeared. Now, he said that Lollis experiences a reaction every time he touches a Styrofoam cup.

Lollis’s wife, Bernice, testified that he did not experience rashes prior to November 7, 2004, nor any other type of health problems. After November 7, 2004, she stated that Lollis exhibited rashes on his face, arm, leg, and chest, which itched all the time. She stated that his rashes became worse after he switched to the forklift and continued after he stopped working. She stated that he still experiences rashes; she said that he had black spots on the side of his face and hands, which itched all the time.

Smith, a paint superintendent for Shaw, testified that Lollis mixed the majority of the paints used on the different offshore structures Shaw painted. He stated that any personnel who paints is required to wear personal protection equipment consisting of long sleeves, a respirator, a paint stocking to cover their head and neck, and safety glasses/goggles. Additionally, he said that any employee who mixes paint wears a large apron. He further stated that all employees attended daily Rsafety meetings, where they sign a job safety analysis sheet.

Smith testified that Shaw began using Tideguard approximately two weeks prior to Lollis’ complaint. He further surmised that Lollis mixed fifty to sixty gallons of the substance per day. However, he stated that Lollis was not the only employee mixing paint during that time period.

On November 7, 2004, Smith stated that both he and Lollis completed a report pertaining to the complained of incident. A couple of days later, he stated that Lollis reported that he had developed a rash as a result of the incident. He said that they went to Cravey’s office and told him about Lollis’ rash, after which Cravey took Lollis to the doctor. Smith testified that he recalled Lollis stating that he was not sure what caused the rash, and that they were still unsure of its cause. He further remembered that the rash started on Lollis’ right hand and then spread to other areas of his body.

As a precautionary measure, Smith testified that he moved Lollis to the forklift-driver position in order to get him as far away from the Tideguard as possible. He stated that they gave him all new work clothes and tried to ensure that he worked downwind of any sandblasting or painting. He said that if he could not do so, Lollis stayed in his office.

Smith stated that Lollis’ rash was bad at first, but that it became worse and spread a week later. However, he thought that it was better toward the end of February 2005. During that time, he stated that Lollis continued working full time. On February 13, 2005, Smith said that Lollis complained that Shaw was not doing anything for him and that he was going to see a doctor. Smith testified that he asked 13what Shaw was supposed to do when Lollis reported to Cravey that he was fine. He then asked Lollis to talk to Cravey, but said that Lollis left work and has not returned. But for this, he testified that Lollis would still be employed by Shaw at a rate of eighteen dollars per hour.

Smith testified that Lollis has never been restricted from working regular duty by any doctor, nor did he observe him experiencing any difficulty while driving the forklift. He further stated that Lollis never complained about overspray in the yard or that he was hampered in his job duties by the presence of epoxy chemicals. Although Smith admitted that overspray does occur and that epoxy paint possibly was present in the air during sandblasting, he stated that Shaw tries to limit the amount by painting everything in a large shop. He disagreed that the overspray was bad as Shaw’s yard covered twelve to fourteen acres. Furthermore, he stated that if it were bad, Shaw would have required all workers to wear respirators. Finally, he stated that Lollis never complained to him about being unable to work. Had he done so, he stated that he would have moved him to a position in the tool room until he was capable of returning to his regular duties.

Following this incident, Smith testified that they started requiring all painters to use chemical resistant rubber gloves. Previously, he stated that they only used heavy cotton-type gloves. He further stated that they required the painters to use a new pair every time they removed their gloves.

Carruth, the physician’s assistant, testified that he initially saw Lollis on November 9, 2004, at which time he had a rash on his right forearm and on each side of his neck. He stated that he diagnosed this as a chemical dermatitis of unknown [inetiology. He said that he told Lollis to avoid all chemicals until his condition resolved. Carruth testified that Lollis returned to him on November 27, 2004, after he experienced small eruptions on both arms. He again diagnosed this as a chemical dermatitis and set up an appointment for Lollis to see Dr. Waguespack-LaBiche. Lollis again complained of a rash and itching on January 3, 2005, which he diagnosed as a dermatitis of unknown etiology. ■

Dr. Waguespack-LaBiche testified that she diagnosed Lollis as suffering from- an irritant dermatitis, which she described as a reaction of the skin to some type of irritant, such as a chemical or other substance. On January 14, 2005, she stated that he exhibited hyper-pigmented licheni-fied plaques on his chest and the sides of his neck, which appeared to be excoriated or scratched. She described these as being raised darkly colored thickened areas on the skin, which caused by chronic rubbing and scratching. She stated that he also complained of a rash in his groin, which she diagnosed as jock itch or tinea cruris.

Dr. Waguespack-LaBiche stated that Lollis returned as an independent patient on May 2, 2006, and requested a patch test to determine whether he was allergic to rubber. She testified that the test revealed that he was allergic to epoxy resins. She explained that a person may be predisposed at birth to becoming synthesized to an allergen; however, a person becomes allergic to a specific allergen when they are exposed to and become synthesized to a specific allergen. She said that an allergy does not occur after one contact, rather, it develops over a period of time after sufficient T-eells or immune response cells develop and act against the allergen.

|1TDr. Waguespack-LaBiche testified that although dermatitis can be disabling, Lollis was not disabled on May 2, 2006. She explained that she told him to avoid epoxy resins, which are contained in some vinyls and can be absorbed through rubber gloves. She stated that Lollis’ allergy to this substance would be life-long and that he should not continue sandblasting or painting if epoxy resins were involved. She further testified that Tideguard does contain epoxy resins.

Dr. Nassetta diagnosed Lollis as suffering from an allergic contact dermatitis to epoxy resin. Of Lollis’ symptoms, he stated that his headache during the acute setting was likely an irritant effect of the chemicals that compose the epoxy resin. However, he found no relationship between Lollis’ symptoms in July 2005, and his employment with Shaw. Although Dr. Nassetta opined that it may have taken Lollis several weeks to become sensitized to epoxy resins, he said that once sensitized, his reactions could result from a lower concentration of the substance and from the presence of the substance in the air. He added that patients can develop an exquisite sensitivity to their particular chemical allergen; and he indicated that Lollis was extremely sensitive to some substance.

In July 2005, Dr. Nassetta noted that Lollis’ rashes were in different locations from his initial reaction. This, he said, was common. He further stated that if Lollis was removed from an environment containing epoxy resins, he should improve in a matter of weeks or months. Dr. Nassetta also explained that Lollis could have developed cross reactions after the initial reaction and that skin tests were required to pin down his specific allergy. He stated that the skin tests performed by Dr. Waguespack-LaBiche revealed that Lollis was allergic to epoxy resins, a well [12known chemical sensitizer. This, he said, was consistent with contact dermatitis and supported his diagnosis.

Dr. Nassetta testified that he could not make a disability determination for Lollis based on the information he possessed. In order to do so, he stated that he needed a definitive list of substances Lollis was allergic to, including cross reactions, and an analysis of Shaw’s yard to determine whether those substances were present. He testified that the analysis would involve meeting with Shaw’s environmental and safety people and its hygienist in order to evaluate Lollis’ work environment. If epoxy resins were present throughout Shaw’s yard and if Lollis was reacting to them, whether he continued working there would depend on the effect his reactions had on his health. If Lollis’ symptoms were treatable and nothing more than a nuisance, then Dr. Nassetta felt that he could continue working. If they were worse, then it would depend on the degree of his symptoms and the side effects from his medications as to whether he continued working. As Lollis was able to work through February 2005, Dr. Nassetta opined that he probably could continue working for Shaw, leaving aside the unrelated symptoms. However, he stated that Lollis would probably not be able to paint or sandblast epoxy resins or other substances in the same class. He said that allergy shots were a possibility for Lollis.

In rendering his oral reasons, the workers’ compensation judge held that Lollis satisfied his burden of proving that he suffered an occupational disease as a result of his exposure to Tideguard and that based on his testimony, he proved that he was temporarily totally disabled. In finding Lollis disabled, the workers’ compensation judge stated:

|1sDr. Nassetta an acknowledged expert in work place (sic)-environmental medicine opined that any job that Mr. Lollis gets from now on will require a screening of some sort to determine if there are any “cross reacting” agents, which will exacerbate his condition. This strikes me as placing some very severe limits and restrictions on the employment prospects of the man who had been a laborer all his adult life. He cannot touch plastic or rubber or any other epoxy derived material. The employer testified that it was willing to allow Mr. Lollis to work in areas of the facility where he would be isolated from Tideguard paint spray, but evidence forces a conclusion this would be exceedingly difficult if not impossible to do. The company simply sort of assumed that there are places on the yard that are immune from Tideguard spray residue. There was nothing like an examination of the area as suggested by Dr. Nassetta. I don’t know what a vocational rehabilitation expert might recommend because the company has not sent Mr. Lollis to see one.
Mr. Lollis (sic) on the stand for a long time and while he was on the stand for a long while (sic), and while he is not articulate he did appear at all times to be giving an honest effort in answering the questions posed to him. He came across as a thoroughly defeated person who had (sic) utterly perplexed and confused by the rapid and unexpected deterioration in this (sic) health and prospects. The Court finds that Mr. Lollis’ allergy condition is the result of his accidental expose (sic) to the chemical Tide-guard. His medical situation is such that he cannot find a job even for minimum wage. He is disabled. He is therefore entitled to workers’ compensation indemnity benefits using Thirteen Dollars an hour for his annual weekly wage computation, retroactive to his last date of employment. The company will provide necessary medical treatment as well as vocation rehabilitation services as well (sic). If SEB is appropriate in due course then that will be ordered.

In reviewing the record in its entirety, we find no manifest error in the workers’ compensation judge’s finding that Lollis proved he suffered an occupational disease due to his exposure to Tideguard. His duties required him to mix coatings, including Tideguard for approximately two to three weeks. Both Drs. Waguespack-LaBiche and Nassetta diagnosed him as suffering from an allergic contact dermatitis to epoxy resins, a known sensitizer and component of Tideguard. As such substance was present in Lollis’ work environment, Dr. Waguespaek-LaBiche felt that it was [uprobably the cause of his contact dermatitis, whereas Dr. Nassetta opined that Tideguard was the cause of his initial reaction. Accordingly, we find that Lollis proved he suffered an occupational disease as a result of his contact with Tideguard.

However, the workers’ compensation judge’s award of temporary total disability poses the most vexed question on appeal. Dr. Waguespaek LaBiche said that Lollis was not disabled from his contact dermatitis as of May 2, 2006, although she admitted that the condition could be disabling. In addition to giving Lollis a list of substances to avoid, she told him to avoid exposure to epoxy resins at work. Dr. Nassetta, the expert in occupational medicine, refused to render a disability determination for Lollis without more information pertaining to his specific allergies, possible cross reactions, and his work environment. In the absence of a more definitive disability determination, we find no manifest error in the workers’ compensation judge’s finding that Lollis proved he was temporarily and totally disabled. Accordingly, the judgment of the workers’ compensation judge finding that Lollis suffered an occupational disease and was temporarily totally disabled as of February 13, 2006, is affirmed.

We further find no error in the workers’ compensation judge’s award of additional medical treatment to Lollis. Dr. Wagues-paek said that Lollis’ allergy would continue for the rest of his life. Dr. Nassetta further indicated that Lollis would require medicine if he continued experiencing reactions. Furthermore, he stated that Lol-lis could possibly receive allergy shots.

PENALTIES AND ATTORNEY’S FEES

In its next assignment of error, Shaw argues that the workers’ | ^compensation judge erred in finding that it failed to reasonably controvert Lollis’ entitlement to benefits for its failure to provide him with vocational rehabilitation services. Shaw based its argument on the fact that it offered Lollis the modified position as a forklift driver after the complained of incident. As this position was available to Lollis, Shaw argues that vocational rehabilitation services were not required.

We disagree. Both Drs. Waguespack-LaBiche and Nassetta restricted Lollis from working where epoxy resins were present. Dr. Waguespack-LaBiche said that he should not handle any epoxy resins and that those substances can penetrate shirts and rubber gloves. Dr. Nassetta said that Lollis would have no work restrictions if he was isolated totally from anything containing Tideguard or epoxy resins. He further stated that epoxy resins can become airborne. Without knowing Lollis’ specific allergies, i.e., epoxy resins and any other cross reactions that have developed as a result of this allergy, we do not agree with Shaw’s assumption that the forklift position alleviated the need for vocational rehabilitation services.

The medical evidence bears out that Lol-lis continued suffering rashes even after he was moved to the forklift driver position and away from the Tideguard. Moreover, Smith admitted that overspray occurred, that sandblasted epoxy paint was possibly present in the air, and that he could not ensure that Lollis was kept downwind of all painting or sandblasting which occurred in Shaw’s yard, even if the yard was approximately fourteen acres large.

The workers’ compensation judge’s decision to award penalties and attorney’s fees is factual in nature and will not be reversed on appeal absent manifest | ^error. Odom v. Kinder Nursing Home, 06-1442 (La.App. 3 Cir. 4/25/07), 956 So.2d 128. Based on the foregoing, we affirm the judgment of the workers’ compensation judge awarding Lollis $2000 in penalties and $7500 in attorney’s fees for Shaw’s failure to provide him with vocational rehabilitation services.

FRAUD

In its final assignment of error, Shaw argues that the workers’ compensation judge erred in failing to find that Lollis violated La.R.S. 23:1208, by making ’false statements for the purpose of obtaining workers’ compensation benefits. After reviewing the record and the testimony pointed out by Shaw, we find no manifest error in the workers’ compensation judge’s finding.

CONCLUSION

For the foregoing reasons, the judgment of the workers’ compensation judge is affirmed in all respects. The costs of this appeal are assessed to the defendant-appellant, Shaw Global Energy Services.

AFFIRMED.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    HERFF JONES, INC. and Graduate Supply, Inc. v. Nettie Sue GIROUARD, James Rabb, Warren Rabb and The Grad Shoppe, Inc.
    No. 2007-0393.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 3, 2007.
    Rehearing Denied Nov. 21, 2007.

      John P. Wolff, III, Tiffany N. Thornton, Keogh, Cox & Wilson, Ltd., Baton Rouge, LA, for Plaintiff/Appellee Herff Jones, Inc.
    John Dale Powers, Neil Mixon, Powers, Hightower & Sellers, L.L.P., Baton Rouge, LA, for Plaintiff/Appellee Graduate Supply, Inc.

      Jean Ouellet, Perrin, Landry, deLaunay, Dartez & Ouellet, Lafayette, LA, for Defendant/Appellant Nettie Sue Girouard.
    Court composed of JIMMIE C. PETERS, GLENN B. GREMILLION, and J. DAVID PAINTER, Judges.
   PETERS, J.

hThe defendant, Nettie Sue Girouard, appeals the trial court’s grant of a preliminary injunction prohibiting her from violating contractual covenants not to compete with the plaintiffs, Herff Jones, Inc. and Graduate Supply, Inc., in their business. For the following reasons, we reverse the trial court judgment and remand the matter to the trial court for further proceedings.

DISCUSSION OF THE RECORD

Herff Jones, Inc. (Herff) has, for a number of years, been in the business of manufacturing and selling graduation class rings, robes, medals, diplomas, caps and gowns, and similar products to graduates, parents, and schools throughout Louisiana. In 1993, Ms. Girouard became associated with Herff as an independent contractor/sales representative. This litigation arises from the specifics of three agreements entered into between Ms. Girouard and Herff, one in 1993 and the other two in 2004.

In initially entering into the business relationship with Herff, Ms. Girouard executed a written contract designated as a “Herff Jones Sales Representative Agreement” (1993 Agreement), which provided in part that under certain conditions expressed in the contract, she would not compete with Herff in a specific territory after terminating the relationship created by the contract. Eleven years later, when she did terminate the relationship with Herff, she entered into a second contract entitled “Sales Representative Special Agreement” (2004 Agreement), wherein she agreed to maintain the noncompetition covenant of the 1993 Agreement, but in a modified form. Ancillary to that agreement, Ms. Girouard entered into an employment agreement with Graduate Supply, Inc. (Graduate Supply), a new Herff affiliate.

|2Ms. Girouard then maintained the modified relationship with Herff for another two years. However, in 2006, she terminated her relationship with Herff and commenced working for The Grad Shoppe, Inc. (The Grad Shoppe). The Grad Shoppe, which is owned by Warren and James Rabb, is a direct competitor with Herff and sells and distributes similar products throughout Louisiana. The relationship between The Grad Shoppe and Ms. Girouard formed the basis of the plaintiffs’ suit for injunctive relief.

Herff and Graduate Supply filed suit on August 15, 2006, seeking an injunction and damages for violations of the 1993 and the 2004 agreements not to compete. In filing suit, they named as defendants Ms. Gir-ourad, The Grad Shoppe, Warren Rabb, and James Rabb. At the October 16, 2006 hearing on the request for a preliminary injunction, the plaintiffs offered the written contracts to which Ms. Girouard was a party; the depositions of Ms. Girouard and Kirk Shryoc, Herffs vice-president for sales; and the affidavit of Steve Dykes, who works for Graduate Supply. The defendants countered this offering with affidavits from Ms. Girouard and Warren Rabb. Considering the record, there exists little dispute regarding the content of the written agreements at issue.

The 1993 Agreement

Ms. Girouard executed the 1993 Agreement on July 1 of that year. Under its terms, she became Herffs sales representative in a territory described in the | ¡¡agreement as Section B, consisting of all schools in thirteen named parishes as well as specifically named schools in three additional parishes. The agreement, which was a standard form agreement prepared and provided by Herff, was clear in establishing that Ms. Girouard was an independent contractor and not Herffs employee. In that regard, it stated that “[njothing herein shall be construed to ascribe unto [Ms. Girouard] a status other than that of an independent contractor.” The agreement provided that Ms. Girouard would be compensated on a commission basis and that the relationship created was terminable by either party by sixty days’ written notice to the other party. It further provided that on termination of the agreement by either party, Herff had the option to buy the business from Ms. Girouard based on a formula of “Territory Commission Splits” over a period of three years following the date of termination. Specifically, in exchange for the commission splits envisioned by the formula, Herff was to receive the goodwill developed by Ms. Girouard through her sales activities. In order to preserve that goodwill, Ms. Gir-ourad agreed to continue to render services to Herff which might be necessary for the orderly transfer of her business, and agreed not to compete with Herff in the business. However, the agreement also provided that in the event Herff chose not to exercise the option to purchase, the noncompetition provision would not be applicable.

The covenant not to compete stated the following:

In consideration of Company’s purchase of Representative’s Business (and the payment of Territory Commission Splits), Representative covenants that during the period of time Representative shall receive Territory Commission Splits as set forth above and for a period of one (1) year thereafter, Representative will not compete, directly or indirectly (nor receive, in any form, benefit from a competitor of the Company) in the Territory against Company, any of its sales representatives, employees or other authorized agents, or any of its subsidiaries or affiliates. In addition, Representative agrees not to compete, directly or indirectly, against Company, its sales 1 ¿representatives, employees or other authorized agents, its affiliates or its subsidiaries by selling, marketing, manufacturing, creating, servicing, leasing or purchasing Products and /or Related Company Products (or products that are similar in form or function to such Products and/or Related Company Products) in the Territory during the period of time Representative shall receive Territory Commission Splits and for a period on [sic] one year thereafter. To “compete” as used herein shall include, among other things, the servicing of accounts, soliciting of sales from customers, supervision of such sales, the recommendation of suppliers of Products and/or Related Company Products other than Company or in any manner contributing to the diminution of Company’s goodwill with customers.

In July of 2004, Ms. Girouard informed Herff by letter that she would terminate the contractual relationship in sixty days. In response, Herff informed her that it intended to exercise its option to purchase her business interest pursuant to the terms of the 1993 Agreement. This action gave rise to the execution of the 2004 Agreement, which the parties executed on August 2, 2004.

The 200k Agreement

This two-page document stated that its purpose was to implement Herff s option to purchase provided for in the 1993 Agreement. However, despite this declared purpose, which makes no mention of an employment relationship, and despite the language of the 1993 Agreement specifically asserting that no employment relationship had been created between Ms. Girouard and Herff, the injunction petition filed by the plaintiffs described the 2004 Agreement as follows:

Herff Jones, Inc. and Girouard set forth terms for the sale of the business as well as terms of their continuing employment relationship. Specifically, Herff Jones exercised its first right to purchase and designated Graduate Supply as the replacement representative. In addition, Girouard and Herff Jones agreed on the following provisions for her continued employment with Herff Jones:

(Emphasis added).

| sThese allegations are incorrect because the 2004 Agreement did not create an employment relationship. The 2004 Agreement did provide, however, that Ms. Girouard would comply with any reasonable request for assistance from Herff and its new sales representative in effecting the transfer of sales and the maintenance of favorable customer relations. Specifically, she was “to help the new representative/s become established in the territory.” She agreed to do so through June 30, 2008. Also, the parties adopted a modified version of the noncompetition covenant of the 1993 Agreement. The modification expanded the period of time the noncompetition agreement would be in effect, extending it from July 1, 2004 through June 30, 2009. The 2004 Agreement incorporated Ms. Girouard’s obligation to perform services pursuant to the commission splits formula found in the 1993 Agreement. With regard to her compensation under the 2004 Agreement, Ms. Girouard was to receive a commission split of fifty percent, limited to sales to customers from whom she had obtained orders during the twelve months preceding the termination date of the 1993 Agreement.

The 200k Employment Agreement

As previously stated, Graduate Supply is a Herff affiliate. It was incorporated on August 2, 2004, the same day as the execution of the 2004 Agreement. Immediately upon its incorporation, it was designated by Herff as its new sales representative for Ms. Girouard’s territory.

Four days after executing the 2004 Agreement, Ms. Girouard entered into a written contract with Graduate Supply. The contract was prepared by Herff, was entitled “Employment Agreement,” was terminable at will, and identified the territory covered to be “[a]s determined by [Graduate Supply].” With regard to compensation | fifor her services, the Employment Agreement provided that Ms. Gir-ouard would be compensated at a rate “[a]s determined by [Graduate Supply]” but that the compensation “may be amended from time to time.” Emphasizing that the duties Ms. Girouard owed to Graduate Supply would directly benefit Herff, the Employment Agreement bound Ms. Gir-ouard to do for Graduate Supply exactly what she had agreed to do for Herff, i.e., help assimilate the new sales representative into the business. The Employment Agreement contained a noncompetition clause wherein Ms. Girouard agreed not to compete with Herff or Graduate Supply in the sale of Herff products “for a period of one year after Employee’s relationship with Sales Representative is terminated and after Employee ceases selling Herff Jones Products.”

Remaining Evidence

Mr. Shryoc testified that when Herff purchased Ms. Girouard’s business in the 2004 Agreement, the main part of the purchase was goodwill, and that the simultaneous creation of Graduate Supply as a business entity created a situation where it was incumbent on all three parties to work together for their mutual benefit. The other deposition and affidavit testimony establishes that less than two years after executing the Employment Agreement Ms. Girouard left Graduate Supply and began working for The Grad Shoppe. In fact, she signed a sales representative contract with The Grad Shoppe on June 19, 2006.

The trial court heard evidence on the preliminary injunction on October 16, 2006, and thereafter issued the preliminary injunction that is the subject of this appeal. Relying on the provisions of La.Code Civ.P. art. 3612(B), which provides that an appeal may be taken as a matter of right from an order or judgment relating to a preliminary injunction, Ms. Girouard perfected this appeal.

l7The only issue before us is whether the preliminary injunction was properly granted. Ms. Girouard asserts that the trial court erred in granting the preliminary injunction because the noncompetition language of the 1993 Agreement was null, void, and unenforceable in that it violated La.R.S. 23:921(C) as that subsection read at that time. Further, relying on La.R.S. 23:921(B), she contends that because the noncompetition language in the 2004 Agreement and its ancillary Employment Agreement related to the sale of the goodwill of her business, it was no longer enforceable by an injunction under La.R.S. 23:921(B) because two years had elapsed between the date of the sale and the preliminary injunction hearing on October 16, 2006.

STANDARD OF REVIEW

The issuance of a preliminary injunction will not be disturbed on appeal absent a clear abuse of discretion. Vartech Sys., Inc. v. Hayden, 05-2499 (La.App. 1 Cir. 12/20/06), 951 So.2d 247. But where the trial court’s decision is based on an erroneous interpretation or application of law, rather than a valid exercise of discretion, such an incorrect decision is not entitled to deference by the reviewing court. Hooper v. Hooper, 06-825 (La.App. 3 Cir. 11/2/06), 941 So.2d 726, writ denied, 06-2823 (La.1/26/07), 948 So.2d 177; Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983). Here, the underlying issues, whether the noncompetition agreements on which the trial court based its grant of the preliminary injunction were valid and in effect at the time of the hearing on the motion, are questions of law which we will review de novo.

OPINION

|SA valid noncompetition agreement “shall be considered an obligation not to do, and failure to perform may entitle the obligee to recover damages for the loss sustained and the profit of which he has been deprived.” La.R.S. 23:921(H). Additionally, “upon proof of the obligor’s failure to perform, and without the necessity of proving irreparable injury, a court of competent jurisdiction shall order injunctive relief enforcing the terms of the agreement.” Id. In determining whether the obligee has met his burden of proof, the courts will consider the validity and enforceability of the agreement sought to be enforced. Vartech, 951 So.2d 247.

It is well settled that parties are free to contract except for those instances where the government places restrictions for reasons of public policy. La. Smoked Prods., Inc. v. Savoie’s Sausage and Food Prods., Inc., 96-1716, 96-1727 (La.7/1/97), 696 So.2d 1373. The public policy with regard to noncompetition agreements is set forth in La.R.S. 23:921(A)(1), which states that “[e]very contract or agreement, or provision thereof, by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, except as provided in this Section, shall be null and void.” Thus, there exists a strong public policy disfavoring such agreements, which is “based upon an underlying state desire to prevent an individual from contractually depriving himself of the ability to support himself and consequently becoming a public burden.” SWAT 24 Shreveport Bossier, Inc. v. Bond, 00-1695, p. 5 (La.6/29/01), 808 So.2d 294, 298. The effect of this longstanding policy has been to prohibit or severely restrict such agreements. Furthermore, because such covenants are in derogation of the common right, they must be strictly construed against the party seeking their enforcement. Id. The rule of strict construction applies “whether the agreement is in the form of restrictions on | gcompetition by a former employee, restrictions on competition by the seller of a business, or some other variation which has the effect of limiting competition.” Boswell v. Iem, 37,-713, p. 5 (La.App. 2 Cir. 10/31/03), 859 So.2d 944, 947.

Despite this longstanding policy, La.R.S. 23:921(B) allows an exception to the prohibition against noncompetition covenants for the sale of the goodwill of a business, and La.R.S. 23:921(0 allows a similar exception in cases involving employees and independent contractors. Thus, in analyzing the issue before us, we must first consider if any of these exceptions apply in the three contracts at issue.

In first considering the 1993 Agreement, we note that the agreement clearly identified Ms. Girouard as an independent contractor. However, the exception in La.R.S. 23:921(C) relating to independent contractors was added by 1995 La. Acts No. 937, § 1. In the absence of contrary legislative expression, substantive laws |inapply prospectively only. La.Civ. Code art. 6. Because the 1995 amendment established a new rule, it is substantive and has prospective application only. See Sola Commc’ns, Inc. v. Bailey, 03-905 (La.App. 3 Cir. 12/10/03), 861 So.2d 822, writ denied, 04-107 (La.3/19/04), 869 So.2d 858. “A contract is an agreement by two or more parties whereby obligations are created, modified or extinguished.” La.Civ. Code art. 1906. “Obligations of parties to a contract are fixed at the time the contract is entered into.” La. Smoked Prods., Inc., 696 So.2d at 1378. Thus, only the provisions of La.R.S. 23:921 in effect at the time that the agreement was entered into were applicable in determining whether this agreement was enforceable. Clear Channel Broad., Inc. v. Brovm, 04-133 (La.App. 4 Cir. 3/30/05), 901 So.2d 553. Therefore, the noncompetition provision of the 1993 Agreement was null and void when it was entered into because it did not fall within any of the then-existing exceptions to the prohibition against noncompet-ition covenants.

Given our conclusion that the noncompetition provision of the 1993 Agreement was null and void at the time it was entered into, we find that the trial court clearly abused its discretion in granting the preliminary injunction based on the 1993 Agreement. However, the fact that the noncompetition provision was unenforceable did not render the 1993 Agreement totally void because it contained a severability clause. That being the case, we must still consider the effect of the agreement after severing the noncompetition language. See SWAT H, 808 So.2d 294. Additionally, the parties agreed in the 2004 Agreement that:

All provisions of the Sales Representative Agreement between the parties hereto dated July 1, 1993 and previously executed special agreements remain in full force and effect except those provisions that In are specifically superseded by mutual consent by the Special Agreement.

Therefore, the 1993 grant of the option to purchase Ms. Girouard’s business and goodwill, including the option to enter into a new agreement, was enforceable, was exercised, and will be given effect.

We turn now to the noncompetition provisions contained in the 2004 Agreement and the Employment Agreement. In determining the validity and enforceability of the two 2004 noncompetition provisions, we need to identify the two 2004 agreements, then test their efficacy under the strict standards of La.R.S. 23:921(B) and (C).

The record is clear that Herffs option to purchase related primarily to the customer goodwill generated by Ms. Gir-ouard during her years of association with the company, as that basically comprised her entire business. Mr. Shryoc testified that “a substantial portion of the sale in August 2004[was] a sale of goodwill” with the remainder being described as a “transfer of her territory.” We interpret the latter to be nothing more than the goodwill of her efforts within that territory. It was this goodwill that Herff in turn conveyed to Graduate Supply.

Goodwill has been recognized in our jurisprudence as an incidental property right connected with a commercial business and capable of sale and transfer from one owner to the other. Godwin v. Godwin, 533 So.2d 1009 (La.App. 1 Cir.1988), writ denied, 537 So.2d 1165 (La.1989). It has also been defined as the probability that the customers of the old establishment will continue their patronage. Simpson v. Restructure Petroleum Mktg. Servs., Inc., 36,508 (La.App. 2 Cir. 10/23/02), 830 So.2d 480. While La.R.S. 23:921(B) provides that the sale of the goodwill of a business may include a noncompetition clause, the period of noncompetition cannot “exceed a period of two years from the date of sale.” In the matter before us, the sale occurred in August of 2004, but the noncompetition term extended through June 30, 2009.

Herff and Graduate Supply assert on appeal that the 2004 Agreement “explicitly provides that June 30, 2008, is the date of sale” and that the two-year noncompetition limitation provided for in La.R.S. 23:921(B) did not begin to run until then. But such a provision cannot be found in the 2004 Agreement either explicitly or by implication. Additionally, this appears to be a argument presented for the first time on appeal, as their petition specifically asserts that the sale occurred on August 2, 2004.

We find that the assertions of the petition are correct, not the assertion on appeal. The parties agreed on the thing and the price on August 2, 2004. This court in Blalock v. Lord, 05-939 (La.App. 3 Cir. 2/1/06), 927 So.2d 1142, writ denied, 06-1624 (La.9/26/06), 937 So.2d 847, citing La. Civ.Code art. 2456, pointed out that Louisiana does not recognize the common law conditional sales contract; rather, once the parties have agreed on the thing and the price, the sale is complete. Accordingly, the effective date of the sale was August 2, 2004.

Because the 2004 Agreement was a sale of the goodwill of a business, its noncom-petition provision was governed by La.R.S. 23:921(B). That being the case, the duration of the noncompetition provision is limited by statute to two years from |1sthe date of sale, or until August 2, 2006, and the attempt in the 2004 Agreement to bind Ms. Girouard to noncompetition for a period of nearly five years was void on its face. Whether or not the covenant in the 2004 Agreement could be or was reformed, in the circumstances of this case, to a two year limitation is a question we are not called upon to decide. As we previously stated, the only issue before us on this appeal is whether the prelimináry injunction was properly granted. And even if the covenant in the 2004 Agreement was valid for two years, it expired on August 2, 2006. Thus, the trial court clearly abused its discretion in granting the preliminary injunction on the basis of the noncompetition covenant in the 2004 Agreement.

We turn finally to a consideration of the Employment Agreement signed four days after the 2004 Agreement. It contained a one-year noncompetition agreement, and by its language Graduate Supply became Ms. Girouard’s nominal employer. Because La.R.S. 23:921(C) permits an employee to agree to a noncompetition provision for a period not exceeding two years from the date work is performed under a written contract, we must consider this agreement in light of that exception.

The noncompetition provision in the 2004 Agreement would have been lifted on August 2, 2006, two years from the date of sale. However, if we give effect to the noncompetition clause found in the Employment Agreement, the competition prohibition would be extended for an additional year, until August 2, 2007. We decline to give that clause any effect.

As pointed out by the trial court, Herff s objective in both of the 2004 contracts was that of “holding on to its clients.” The goodwill purchase from Ms. Girouard by Herff and her “employment” agreement with Graduate Supply were to effect that same result. To construe her “employment” agreement as suggested by the plaintiffs |uwould create an arrangement that could perpetuate the noncompetition covenant beyond the statutory limitation of two years, effectively placing Ms. Girouard in a position of being obligated for some indeterminate period of time under stacked contractual prohibitions against competition. The petitions, the contracts, the depositions, the declarations of Herff and Graduate Supply in their briefs, and the manifest understanding of the trial court and all parties establish that the Employment Agreement was incidental and ancillary to the sale by Ms. Girouard of her goodwill and its “orderly transition” to Herff.

When we place the Employment Agreement between Graduate Supply and Ms. Girouard in its proper perspective vis-a-vis the 2004 Agreement, we see that the Employment Agreement was not truly a separate contract that would be independently subject to the duration provisions of La. R.S. 23:921(C). There were no terms and conditions of actual employment. Ms. Gir-ouard’s compensation came from Herff, her duties and responsibilities were owed to Herff, and the entire relationship was under Herff s guidance and control. The so-called employment was inseparably coupled with the sale of her business Ms. Girouard and Herff accomplished through the 2004 Agreement. Herff and Graduate Supply never argued that there was a genuine employment. In their appellate briefs, relying on the law that noncompetition covenants in conjunction with the sale of the goodwill of a business are enforceable, the appellees write that “the various covenants not to compete she signed were executed in conjunction with the sale of a business.” They assert that “the covenant not to compete and independent obligations to assist and promote the business of Herff Jones are ancillary to the sale of Girouard’s business to Herff Jones.” Their arguments to the trial court and their briefs before us attached no | ^significance to the Employment Agreement other than for its repetition of a noncompetition covenant. Similarly, the trial court in its reasons for judgment discussed only the 1993 Agreement and the 2004 Agreement, never mentioning the Employment Agreement as an independent contract containing separate rights and obligations. The court below and the parties regarded the Employment Agreement as merely ancillary to the “buyout” of the business by Herff. Even if the stacking of noncompetition periods could be tolerated under the strict construction rules of La.R.S. 23:921, that did not occur in this case. The noncompetition provision of the Employment Agreement was not an enforceable one.

We conclude that whatever obligation Ms. Girouard owed not to compete terminated on August 2, 2006. The preliminary injunction hearing took place on October 16, 2006. On that date there was no non-competition agreement in effect, and therefore no legal basis for the granting of an injunction. The trial court clearly abused its discretion in granting the judgment of preliminary injunction.

DISPOSITION

For the foregoing reasons, we reverse and set aside the judgment granting the preliminary injunction. We remand the matter to the trial court for further proceedings. We assess all costs of this appeal to Herff Jones, Inc. and Graduate Supply, Inc.

REVERSED AND REMANDED.

      . The petition and amending petitions also pleaded a violation of the Uniform Trade Secrets Act contained in La.R.S. 51:1431 et seq., a breach of her fiduciary duty by Ms. Gir-ouard, and a conspiracy to commit an intentional tort of conversion by all defendants. However, there was no ruling on the demands asserted against the other defendants, nor was there any ruling against Ms. Girouard on the other grounds asserted in the plaintiffs’ petitions. The only judgment rendered by the trial court was a preliminary injunction issued against Ms. Girouard on the ground that the plaintiffs had demonstrated that Ms. Gir-ouard was in violation of the agreements not to compete. Therefore, the appeal now before us is limited to that issue.

      . Louisiana Revised Statute 23:921(B) provides (emphasis added):
      Any person, including a corporation and the individual shareholders of such corporation, who sells the goodwill of a business may agree with the buyer that the seller or other interested party in the transaction, will refrain from carrying on or engaging in a business similar to the business being sold or from soliciting customers of the business being sold within a specified parish or parishes, or municipality or municipalities, or parts thereof, so long as the buyer, or any person deriving title to the goodwill from him, carries on a like business therein, not to exceed a period of two years from the date of sale.

      . Louisiana Revised Statute 23:921(C) provides (emphasis added):
      Any person, including a corporation and the individual shareholders of such corporation, who is employed as an agent, servant, or employee may agree with his employer to refrain from carrying on or engaging in a business similar to that of the employer and/or from soliciting customers of the employer within a specified parish or parishes, municipality or municipalities, or parts thereof, so long as the employer carries on a like business therein, not to exceed a period of two years from termination of employment. An independent contractor, whose work is performed pursuant to a written contract, may enter into an agreement to refrain from carrying on or engaging in a business similar to the business of the person with whom the independent contractor has contracted, on the same basis as if the independent contractor were an employee, for a period not to exceed two years from the date of the last work performed under the written contract.

      . The "previously executed special agreements” mentioned in this quotation were those confected simultaneously with the 1993 Agreement and are not relevant to the present dispute. There is no substantial difference between what the 2004 Agreement noncom-petition clause sought to accomplish and the literal application of the 1993 provision. Both sought to bind Ms. Girouard not to compete for as long as she received Territory Commission Splits and for one year thereafter.

      . Admissible evidence at the hearing on an application for a preliminary injunction in-eludes the verified pleadings. La.Code Civ.P. art. 3609.