author: PARRO, J. McCLENDON, J.,

text:
    Densic HAYES v. LOUISIANA STATE PENITENTIARY

    No. 2006 CA 0553.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 15, 2007.
    Rehearing Denied Oct. 22, 2007.

      Ted Williams, Williams & Miller, L.L.C., Baton Rouge, for Plaintiff-Appellee Densic Hayes.
    Philip J. Shaheen, Baton Rouge, for Defendant-Appellant Louisiana State Penitentiary/Department Of Public Safety and Corrections.
    Before: PARRO, GUIDRY, and McClendon, jj.

      . The defendant was initially identified as "Angola State Penitentiary.’

   PARRO, J.

| fin this workers’ compensation case, an employer appeals from a judgment in favor of its former employee, which judgment declared that an accident had occurred on or about January 20, 1997, and awarded the employee supplemental earnings benefits, medical benefits, penalties, attorney fees, legal interest, and costs. For the following reasons, we affirm.

Factual Background and Procedural History

Densic Hayes (Mr. Hayes) was employed by the Department of Public Safety and Corrections (Department) as the food director at Louisiana State Penitentiary at Angola, Louisiana. On or about January 20, 1997, while in the course and scope of his employment, Mr. Hayes allegedly fell and injured his back while on a loading dock directing a supply truck that was backing up to the dock. Mr. Hayes testified that he informed his secretary, Dorothy Wilson, and others in the business office about the incident. An accident report was completed by Sharon Augustine, which indicated that he had injured himself when Mr. Hayes slipped off of the end of the porch/dock while lifting cases of food. The report, which was dated February 4, 1998, indicated that Ms. Augustine had been informed about the accident on February 4,1997.

According to Mr. Hayes, he initially received treatment for his injury from physicians at the Veterans Administration Hospital (VA) in Baton Rouge and then from Dr. Trenton L. James. In November 1998, pursuant to a referral by Dr. James, Mr. Hayes presented himself to Baton Rouge General Medical Center (BRGMC) Physical Therapy for an initial evaluation, at which time he indicated that his symptoms arose six to seven months earlier when he was lifting a case of food in the freezer. Nonetheless, the BRGMC records reflected that the onset of his symptoms initially commenced following a 1997 fall on a loading dock. Based on a referral from Mr. Hayes’ primary care physician, Mr. Hayes began seeking treatment on July 29, 1999, from Dr. Gray Wesley Barrow with the Rehabilitation Hospital of Baton Rouge, who was board certified |ain physical medicine and rehabilitation, at which time Mr. Hayes gave a history of low back pain since a fall at work in January 1997.

Dr. Barrow’s diagnosis was left lumbar radiculopathy secondary to lumbar steno-sis. Subsequently, Mr. Hayes received three lumbar steroid injections, which gave him some relief. On December 22, 1999, Dr. Barrow took Mr. Hayes off work. In connection with this determination, the Department began paying workers’ compensation indemnity benefits to Mr. Hayes for temporary total disability (TTD). As of August 30, 2000, Dr. Barrow felt that Mr. Hayes could function at a sedentary work capacity with very limited bending, squatting, twisting, pulling, and pushing.

Subsequently, the Department offered Mr. Hayes a desk job at the Department’s headquarters within the sedentary restrictions designated by Dr. Barrow. Rather than accept this offer, Mr. Hayes decided to retire, effective May 12, 2001. The Department discontinued the payment of indemnity benefits in February 2001. As of March 13, 2001, Dr. Barrow believed that Mr. Hayes had reached maximum medical improvement.

On August 23, 2001, Mr. Hayes filed a disputed claim for compensation, alleging that he slipped off of a wet loading dock while directing a truck to the dock for unloading. The Department filed a motion for summary judgment, seeking to have the workers’ compensation judge (WCJ) determine whether Mr. Hayes had violated LSA-R.S. 23:1208 by receiving workers’ compensation benefits while earning an income from Dolphin’s Used Tires (Dolphin’s). Following a hearing, the WCJ denied the Department’s motion.

After a trial of this matter, the WCJ declared that Mr. Hayes had suffered a work-related injury in an accident that occurred on or about January 20, 1997. Accordingly, the WCJ awarded supplemental earnings benefits (SEB) at the maximum rate from February 12, 2001, to March 26, 2001, and from March 26, 2002, until such Dtime as the Department was able to establish Mr. Hayes’ wage-earning capacity pursuant to the workers’ compensation law. The judgment also ordered payment of medical benefits. Penalties in the amount of $2,000 and attorney fees in the amount of $5,000 were also awarded, along with legal interest and all costs. Following the denial of its motion for new trial, the Department appealed, contending that the WCJ erred in the following respects:

1. failing to grant its motion for summary judgment;
2. failing to find that Mr. Hayes had committed fraud;
3. finding that Mr. Hayes had proven the occurrence of a work-related accident on January 20,1997;
4. finding a causal relationship between the January 20, 1997 accident and his condition;
5. finding that the return-to-work program and employment offered by the Department did not meet the sedentary restrictions set by Mr. Hayes’ physician;
6. failing to find that Mr. Hayes’ entitlement to workers’ compensation benefits was forfeited by his failure and refusal to return to work within his limitations, thereby taking himself out of the workforce; and
7. awarding SEB, penalties, and attorney fees.

Willful False Statement/Failure to Report Earnings

By way of its assignment of error pertaining to the denial of its motion for summary judgment, the Department alleged Mr. Hayes had violated LSA-R.S. 23:1208. At the time of the alleged accident, LSA-R.S. 23:1208 provided, in pertinent part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
|rE. Any employee violating this Section shall, upon determination by [the workers’ compensation judge], forfeit any right to compensation benefits under this Chapter.
G. Whenever an employee receives benefits pursuant to this Chapter for more than thirty days, the employee shall report his other earnings to his employer’s insurer quarterly on a form prescribed by the director.
H. (1) Whenever an employee fails to report to his employer’s insurer as required by this Section within fourteen days of his receipt of the appropriate form, the employee’s right to benefits as provided in this Chapter may be suspended. If otherwise eligible for benefits, the employee shall be entitled to all of the suspended benefits after the form has been provided to the insurer.
(3) The insurer may request a suspension of benefits or an assessment of a penalty for failure to report as provided in this Subsection by filing a form LDOL-WC-1008 with the director.

The Department argued that Mr. Hayes had committed fraud by signing a document stating he was in compliance with all the workers’ compensation laws, although he had failed to comply with LSA-R.S. 23:1208(G), which required him to report any and all other earnings he received while receiving workers’ compensation benefits. The Department introduced an “Employee Certification Form” that had been signed by Mr. Hayes, certifying that he was in compliance with the workers’ compensation law. The Department maintained that when its insurer provided Mr. Hayes with that form, he was provided with an “Employee Certificate of Compliance” form and an “Employee’s Monthly Report of Earnings,” neither of which had been signed by Mr. Hayes. Roosevelt Smith, state risk claims adjuster with the Office of Risk Management, averred in an affidavit that these two documents were generally included in the package of documents routinely sent to workers’ compensation claimants like Mr. Hayes. The Department maintained that Mr. Hayes had deliberately ignored his duty to report his earnings from Dolphin’s to his employer’s insurer, and as a result of this willful misrepresentation, Mr. Hayes had forfeited his entitlement to all of his workers’ [^compensation benefits, relying on St. Bernard Parish Police Jury v. Duplessis, 02-0632 (La.12/4/02), 831 So.2d 955.

Mr. Hayes maintained that his failure to report was not the result of fraudulent conduct or any attempt to hide his operation of Dolphin’s. Mr. Hayes stated that he had told his supervisors with the Department that he owned Dolphin’s. He also alleged that he had never paid himself a salary or wages, and that the business operated at a loss. His income tax statements showed that he reported a net loss on Dolphin’s throughout the time at issue. Because of this, Mr. Hayes argued he did not believe he had any earnings to report. Accordingly, there was no showing that Mr. Hayes made any willful misrepresentation or false statement in order to obtain workers’ compensation benefits resulting in a violation of LSA-R.S. 23:1208(G).

We also find that the Department’s reliance on the Duplessis case is misplaced, since that case involved a claimant’s willful misrepresentation regarding mileage reimbursement, which subjected him to the forfeiture of his workers’ compensation benefits. The Department’s allegations in the matter before us did not establish a willful misrepresentation that could subject Mr. Hayes to the penalties provided by LSA-R.S. 23:1208(E). Rather, this case deals with the failure to comply with statutory reporting requirements described in LSA-R.S. 23:1208(G).

Mr. Hayes testified that he did not recall receiving the additional two forms from Mr. Smith, nor had Mr. Smith or anyone else told him that if he were earning money or was self-employed, he was required to complete such a form. Based on this evidence, we find that the WCJ’s rejection of the Department’s defense, relating to violations of LSA-R.S. 23:1208(A) or (G), is reasonably supported by the record and is not manifestly erroneous.

17Furthermore, the penalty for violating LSA-R.S. 23:1208(G) is governed by LSA-R.S. 23:1208(H)(1), which merely allows the suspension of benefits until the report has been provided to the insurer. Even if we assumed for the sake of argument that the Department’s insurer sent all of the necessary forms to Mr. Hayes, there is no proof in the record that its insurer filed a form LDOL-WC-1008 with the director, requesting a suspension of benefits or an assessment of a penalty, as required by LSA-R.S. 23:1208(H)(3). In the absence of such proof, the Department did not show that a suspension of benefits or an assessment of a penalty as provided by LSA-R.S. 23:1208(H)(1) was appropriate.

Occurrence of an Accident

The Department argued that there was insufficient evidence of an “accident” occurring on January 20, 1997, in that Mr. Hayes’ testimony alone was insufficient to sustain his burden of proof. The claimant in a workers’ compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. Bruno v. Harbert Int’l 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 on the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses, or friends. Corroboration may also be provided by medical evidence. Id.

In determining whether the worker has discharged his burden of proof, the trial court should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent “circumstances casting suspicion on the reliability of this testimony.” Id. The WCJ’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden, of proof are factual determinations, which are not to be disturbed on review unless, clearly wrong or manifestly erroneous. Id.

|RThe Department faults Mr. Hayes for failing to produce any witness to the accident or medical evidence that would show a causal connection between his alleged accident and injury. Specifically, it contends that the first evidence of medical treatment concerning his condition pertained to treatment received on November 16, 1998, with a history of a back injury having occurred six months earlier while lifting a box of ribs. The Department maintained that although Mr. Hayes testified that he had received prior treatment, no supporting evidence was offered. Additionally, the Department noted that the doctor on whose testimony the WCJ relied first treated Mr. Hayes in July 1999, and that doctor’s opinion was based on the history given by Mr. Hayes.

Mr. Hayes’ testimony established that he had worked with the Department since 1977. He had received numerous commendations and praise for his job performance. Prior to that time, Mr. Hayes had served in the armed forces for 21 years. At the time of the alleged accident, he was employed as the director of food services at Angola. His position was that of a working supervisor, in that he was required to perform many duties involving physical labor, including unloading trucks. He stated that on January 20, 1997, he slipped and fell on a slick loading ramp while directing an 18-wheeler that was backing in to unload. As a result of this incident, Mr. Hayes injured his back. He informed his secretary, Ms. Wilson, about the incident as soon as he returned to his office. When she told him that he should get it checked out, he replied that he wanted to wait and see how he would feel. The following morning, he was a little sore. By the third morning following the incident, he was experiencing; a lot of pain, which had begun to go down his leg, and the muscles in his back had tightened up. He testified that he sought medical treatment at that time from the VA, while continuing to work in pain. According to Mr. Hayes, he reported the accident to Ms. Augustine several days after its occurrence. Mr. Hayes stated that he began receiving treatment from Dr. James when he obtained permission to see any doctor of his choice from someone working on his workers’ compensation claim.

|9The employer’s first report of injury was prepared by Ms. Augustine. This report, dated February 4, 1998, disclosed that the Department knew of his injury on February 4, 1997. According to the report, Mr. Hayes injured his lower back on January 20, 1997, when he slipped off the end of the porch/dock while changing out food items (cases of ribs) in the cold storage area. At that time, Mr. Hayes also reported to Ms. Augustine that he had received treatment at the “Veteran Affairs Clinic” and “Baton Rouge General Hospital.”

In light of this evidence, we conclude that the WCJ’s determination that Mr. Hayes’ testimony was credible and its finding of the occurrence of an accident on January 20, 1997, are reasonably supported by the record and are not manifestly erroneous.

Causation

The Department challenged the WCJ’s finding that Mr. Hayes had shown a causal relationship between the January 20, 1997 accident and his condition. This alleged failure of proof is based on the presence of a preexisting back condition and the length of time between the accident and the treatment rendered by Dr. Barrow and others for which medical records were introduced at the trial.

An otherwise healthy employee with a preexisting condition is entitled to benefits if he can prove that his work contributed to, aggravated, or accelerated his injury. Dyson v. State Employees Group Benefits Program, 610 So.2d 953, 955 (La.App. 1st Cir.1992). An employee’s work-related accident is presumed to have caused his disability when the claimant proves that before the accident, he had not manifested his disabling symptoms; that commencing with the accident, disabling symptoms appeared; and that there is either medical or circumstantial evidence indicating a reasonable possibility of a causal connection between the accident and the disabling condition. Walker v. Halliburton Services, Inc., 93-722 (La.App. 3rd Cir.3/1/95), 654 So.2d 365, 369, writ denied, 95-1507 (La.9/22/95), 660 So.2d 481.

Dr. James was not called as a witness at the trial of this matter and his medical records were not directly offered into evidence. However, excerpts of the medical records dating back to August 17, 1998, of Dr. James and other physicians working with him who treated Mr. Hayes, are included in the business or medical records of other treating physicians, which were introduced into evidence. From this information, we can discern that Dr. R.P. St. Amant saw Mr. Hayes on August 17, 1998, for pain that had begun four or five days earlier in Mr. Hayes’ left buttock, radiating down the left leg to the top of his foot. Dr. St. Amant’s notes reflect that Mr. Hayes related his condition to an on-the-job injury that had occurred in January 1998. These notes further indicate that Mr. Hayes had a history of back problems before this injury. Dr. James’ notes from a visit on August 26, 1998, disclosed a history of similar problems for which Mr. Hayes had received treatment from the VA. Dr. James’ diagnosis was probable degenerative disc with nerve root irritation, causing sciatica in the left lower extremity. Mr. Hayes was referred by Dr. James to BRGMC Physical Therapy, where he was initially evaluated on November 16, 1998. The records from this visit disclosed an onset of Mr. Hayes’ condition in November 1997; however, the records further state that Mr. Hayes indicated the initial onset occurred when he slipped off a dock and hit his back. According to the records, Mr. Hayes reported that he began experiencing additional symptoms about six or seven months prior to the evaluation, when he was lifting up on a case in the freezer at work.

Mr. Hayes explained that with the treatment being rendered by Dr. James, he got to the point where he was feeling pretty good, but always in some constant pain; then all of a sudden (several months after the accident), he began to hurt really badly. Mr. Hayes testified that Dr. James eventually referred him to Dr. Barrow.

I^Dr. Barrow stated that an August 5, 1999 MRI revealed a disk bulge at the L3-4 and L4-5 levels, producing moderate, bilateral foraminal stenosis. Dr. Barrow testified that stenosis can result from a chronic condition rather than a precipitating event. Dr. Barrow’s diagnosis was left lumbar radiculopathy secondary to lumbar stenosis. Subsequently, Mr. Hayes received three lumbar steroid injections. As of September 22, 1999, Mr. Hayes was tolerating his work fairly well. On December 22, 1999, Mr. Hayes reported to Dr. Barrow that he had not worked since Thanksgiving; as of that date, Dr. Barrow took Mr. Hayes off work. In connection with this determination, the Department began paying workers’ compensation indemnity benefits to Mr. Hayes. As of August 80, 2000, Dr. Barrow felt that Mr. Hayes could function at a sedentary work capacity with very limited bending, squatting, twisting, pulling, and pushing. Dr. Barrow explained that he would expect Mr. Hayes to experience a flare-up when doing anything outside of this restriction. On October 9, 2000, Dr. Barrow noted that driving increased Mr. Hayes’ symptoms; therefore, Mr. Hayes’ driving time was restricted by Dr. Barrow to 30 minutes.

Dr. Barrow recognized that Mr. Hayes’ stenosis could have resulted from a chronic condition and probably pre-dated his January 1997 accident. According to Dr. Barrow, it is not uncommon for an asymptomatic lumbar stenosis> to become symptomatic after an injury or trauma. In Dr. Barrow’s opinion, the type of accident described by Mr. Hayes would be sufficient to make an asymptomatic stenosis become symptomatic. In light of the history related by Mr. Hayes, Dr. Barrow opined that the January 1997 trauma caused his condition to become symptomatic. Dr. Barrow believed that a causal relationship existed between the work-related accident and Mr. Hayes’ condition, because his lower back condition was asymptomatic prior to the accident, and since the accident, Mr. Hayes had consistently complained of low back problems.

| ^Although his statements to medical personnel as to the date of the accident have not always been accurate, Mr. Hayes’ report of the underlying cause of his current condition has remained the same— that is, a fall on the dock. Granted, it may have been helpful in determining causation to have had the benefit of the testimony of a coworker, family member, or the doctors who treated Mr. Hayes prior to Dr. Barrow, and/or records from the Veteran’s Administration facilities. Nonetheless, the WCJ obviously found Mr. Hayes’ testimony with respect to the initial injury and his eventual disability to be credible. Such facts were corroborated by the accident report prepared by Ms. Augustine, as well as the history repeatedly given to medical personnel following the accident, which served as the basis of Dr. Barrow’s opinion regarding causation. Outside of the fact that Mr. Hayes may have had a preexisting back condition with which he had been able to perform the duties of his job, no other evidence was offered that discredited or cast serious doubt on Mr. Hayes’ version of the incident and the resulting injury. Therefore, we conclude that the record provides reasonable support for the WC J’s finding that a causal connection between the accident and the disabling condition was shown in this case, and we further conclude the record does not support a finding of manifest error.

Entitlement to SEB

An employee is entitled to receive supplemental earnings benefits if he sustains a work-related injury that results in his inability to earn ninety percent or more of his average pre-injury wage. LSA-R.S. 23:1221(3)(a). The employee bears the burden of proving, by a preponderance of the evidence, that the work-related injury resulted in his inability to earn that amount under the facts and circumstances of the individual ease. Magee v. Abek, Inc., 04-2554 (La.App. 1st Cir.4/28/06), 934 So.2d 800, 807-08, writ denied, 06-1876 (La.10/27/06), 939 So.2d 1287. Once the employee meets this burden, the burden of proof shifts to the employer, who, in order to defeat the employee’s claim for SEB or to establish the employee’s earning capacity, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available |13to the employee in his or the employer’s community or reasonable geographic area. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556.

The record is clear that Mr. Hayes was capable of some type of gainful employment. However, there is conflicting evidence as to the exact level at which Mr. Hayes was capable of working. On August 30, 2000, Mr. Hayes’ treating physician opined that Mr. Hayes was only capable of functioning at a sedentary work capacity with very limited bending, squatting, twisting, pulling, and pushing. Dr. Barrow indicated that Mr. Hayes was unable to drive more than 30 minutes at a time. However, the results of a functional capacity evaluation (FCE) that had been performed on February 1, 2001, at Dr. Barrow’s recommendation, showed that Mr. Hayes was capable of light physical demand, even as high as light to medium. The results of this evaluation indicated that Mr. Hayes could sit between 30 to 60 minutes and could lift up to 35 pounds to waist height. Based on the fact that Mr. Hayes had given maximum effort during the FCE and had suffered a significant flare-up of his right buttock pain and right lateral thigh pain to the knee after that evaluation, Dr. Barrow maintained his position that Mr. Hayes should not do anything greater than sedentary duty. This restriction was found by Dr. Barrow to be of a permanent nature.

The Department asserted that the WCJ erred in finding that the return-to-work program and employment offered by the Department did not meet the sedentary restrictions set by Mr. Hayes’ physician. This assignment of error lacks merit, in that the WCJ found that the Department had shown that Mr. Hayes had been offered suitable employment within the Department. For that reason, the WCJ concluded that Mr. Hayes’ entitlement to indemnity benefits ceased on March 26, 2001, the point at which a transitional job within the restrictions set by Dr. Barrow was shown to have been available to Mr. Hayes. However, based on the evidence presented, the WCJ. 114found that the Department had shown that the job .was only of a temporary or transitional nature. Lee Jennings, the Deputy Undersecretary over the Office of Management and Finance, stated that the Department’s policy had been implemented to provide temporary relief for workers to afford them the opportunity to transition back into their regular jobs or some other type of employment. Mr. Hayes was a capable employee with a long record of state service as an administrator dealing with a large number of employees and inmates. In light of his knowledge and experience, Mr. Hayes was eligible for placement at the Department’s headquarters. However, Mr. Jennings was clear that this assignment would be of a temporary nature, and that if Mr. Hayes’ restrictions were permanent, the Department would be unable to accommodate him beyond a maximum of one year. This evidence provides reasonable support for the WCJ’s decision that the transitional job was for a period of one year. Based on this finding, Mr. Hayes was not allowed to recover SEB for the period of March 26, 2001, to March 26, 2002.

As to his entitlement to indemnity benefits from that point forward, the Department contended that Mr. Hayes should have been barred from receiving SEB, based on the fact that his retirement precluded his return to work. At the time of the accident in question, the right to SEB pursuant to LSA-R.S. 23:1221(3) could in- no event exceed a maximum of five hundred twenty weeks, and was to terminate when the employee retired or began to receive old age insurance benefits under Title II-of the Social Security Act, whichever came first; however, the period during which SEB could be payable was not to be less than one hundred four weeks. LSA-R.S. 23:1221(3)(d)(iii). In Pierce v. Lafourche Parish Council, 99-2854 (La.5/16/00), 762 So.2d 608, 614, the termination condition based on receipt of old age insurance benefits was found to unconstitutionally discriminate against employees over the age of |1562 on the basis of age. In Allen v. City of Shreveport, 93-2928 (La.5/23/94), 637 So.2d 123, 126-27, the court concluded that an employee retires for purposes of LSA-R.S. 23:1221(3)(d)(iii) when the employee withdraws from the work force. Thus, we must determine if Mr. Hayes had retired within the meaning of LSA-R.S. 23:1221(3) (d) (iii).

Mr. Hayes was unable to return to his previous job due to the work-related injury he had sustained. Based on his age and the number of years in state service, Mr. Hayes was eligible to retire. Because of his back condition, Mr. Hayes elected to retire effective May 12, 2001. Following his retirement, he continued to operate Dolphin’s. This does not, however, equate to retirement under LSA-R.S. 23:1221(3)(d)(iii). His election to take benefits to which he was entitled under the state’s retirement plan based on his years of service did not deprive him of any other benefits that the state was obligated to provide under workers’ compensation law, unless it had been established that he had actually retired, i.e., withdrawn from the work force with no intention of returning. See Tynes v. Gaylord Container Corp., 02-0519 (La.App. 1st Cir.2/14/03), 844 So.2d 80, 88-89, writ denied, 03-0769 (La.5/9/03), 843 So.2d 404. Mr. Hayes’ self-employment in the used tire business was sufficient to rebut any argument that he had removed himself from the work force. Therefore, as there is no evidence of Mr. Hayes’ intention to permanently withdraw from the work force, we conclude that the provisions of LSA-R.S. 23:1221(3)(d)(iii) are inapplicable.

Alternatively, the Department seeks to have this court recognize its entitlement to a credit, in light of income received by Mr. Hayes from his military retirement, social security benefits, and state retirement. Although this issue was raised by the Department in its first supplemental and amending answer and re-conventional demand that was filed on July 12, 2004, it was not addressed by the WCJ. Generally, when a judgment is silent as to a claim or demand placed before the court, it is presumed that the court denied the relief sought. Barham & Arceneaux v. Kozak, 02-2325 (La.App. 1st Cir.3/12/04), 874 So.2d 228, 241, writ denied, 04-0930 (La.6/4/04), 876 So.2d 87.

|u;The record reveals that Mr. Hayes began receiving benefits under his state retirement plan in the amount of $1,100 per month when he retired on May 12, 2001. Since 1974, he had been receiving $1,400 per month in military retirement, and when he turned 62 on August 26,1999, he began receiving $500 per month in Social Security old age benefits.

Louisiana Revised Statute 23:1225(A) provides that workers’ compensation benefits for injuries producing permanent total disability shall be reduced when the person is receiving Social Security disability benefits. Section 1225(A) is a wage-loss benefit coordination statute enacted specifically to coordinate Louisiana workers’ compensation benefits and federal Social Security disability benefits in cases of permanent total disability. Al Johnson Const. Co. v. Pitre, 98-2564 (La.5/18/99), 734 So.2d 623, 625. In the present case, the award to Mr. Hayes was for SEB and was not based on a finding of a permanent total disability. Furthermore, the record is devoid of any evidence that Mr. Hayes was receiving federal Social Security disability benefits. Therefore, LSA-R.S. 23:1225(A) is not applicable in this case.

At the time of Mr. Hayes’ accident, an offset was mandated by LSA-R.S. 23:1225(0(1), which, in part, provided:

If an employee receives remuneration from:
(a) Benefits under the Louisiana Workers’ Compensation Law.
(b) Old-age insurance benefits received under Title II of the Social Security Act to the extent not funded by the employee.
(c) Benefits under disability benefit plans in the proportion funded by an employer.
(d) Any other workers’ compensation benefits,
then compensation benefits under this Chapter shall be reduced, unless there is an agreement to the contrary between the employee and the employer liable for payment of the workers’ compensation benefit, so that the aggregate remuneration from Subparagraphs (a) through (d) of this Paragraph shall not exceed sixty-six and two-thirds percent of his average weekly wage.

117This subparagraph, which authorizes a reduction of the workers’ compensation obligation when the employee receives other enumerated benefits, is a restriction on an injured employee’s right to workers’ compensation benefits and must be strictly construed. Cousins v. City of New Orleans, 608 So.2d 978, 981 (La.1992). An employer seeking credit for benefits covered by the statute has the burden of proving both entitlement to and the amount of the credit. Jones v. General Motors Corp., 08-1766 (La.6/25/04), 871 So.2d 1109, 1117.

In 1978, the Louisiana Legislature enacted LSA-R.S. 23:1225 to provide for reduction of state workers’ compensation benefits when the employee also receives federal Social Security benefits. The legislation took advantage of a federal statute that permitted a reduction in state compensation payments, which, when combined with the federal payments, would amount to more than the federal maximum. A reduction of the burden on the state compensation system was thereby accomplished. In 1983, the legislature added paragraph C, which provided for a reduction of workers’ compensation benefits by limiting the combined remuneration from workers’ compensation, old age insurance benefits under Social Security, benefits under disability benefit plans, and other workers’ compensation benefits, to two-thirds of wages. Cousins, 608 So.2d at 980.

The coordination of wage loss benefits in the overall system of workers’ compensation seeks to assure that the employee receives some degree of recovery for lost wages, while precluding the employee from recovering duplicative benefits under different parts of the system that could exceed the actual wages earned prior to the disability. See Al Johnson Const. Co., 734 So.2d at 625-26. The theory is that an employee experiencing only one wage loss should be entitled to receive only one wage loss benefit from the employer. Garrett v. Seventh Ward Gen. Hosp., 95-0017 (La.9/22/95), 660 So.2d 841, 843. However, as recognized by the supreme court in Wal-Mart v. Keel, 01-3013 (La.4/3/02), 817 So.2d 1, there is an important distinction for purposes of LSA-R.S. 23:1225(C)(l)(b) between old age benefits and benefits intended to replace wages lost as the result of injury:

11sWhile we agree that preventing duplication of benefits is a legitimate state goal, we are convinced that La.Rev.Stat. 23:1225(C)(l)(b) does not meet even the minimum test of bearing a rational relationship to that goal for the following reasons.
Workers’ compensation benefits are paid from insurance provided by employers to compensate employees for loss of income resulting from work-related injuries in exchange for their employees’ forbearance from suing the employers in tort. Temporary total disability benefits replace a portion of the salary an injured employee could have earned had he not been injured. La.Rev.Stat. 23:1221(l)(a).
Social Security old age benefits, on the other hand, are not intended to replace wages lost solely by an employee’s inability to work. They are provided to persons over the statutory age regardless of injury. Unlike disability benefits or unemployment benefits, a person may receive Social Security old age benefits while still employed and earning additional income. Indeed, those age 70 and older, such as plaintiff, may earn unlimited amounts without any offset against their Social Security income.
Social Security old age benefits are not disability benefits, but old age entitlements serving the same function as pension payments. We point out that other forms of employer-paid retirement income based on tenure cannot be deducted from or “coordinated” with benefits received under the workers’ compensation system. Cousins v. City of New Orleans, 608 So.2d 978 (La.1993) (holding that workers’ compensation benefits could not be offset under La.Rev.Stat. 23:1225(C)(l)(c) when the firefighter was eligible for tenure-based retirement benefits under the same plan that provided disability benefits); see also Matthews v. City of Alexandria, 619 So.2d 57 (La. 1993).

Keel, 817 So.2d.at 9-10. Therefore, the court in Keel reiterated that subparagraph (C)(1)(b) of the statute was unconstitutional. Keel, 817 So.2d at 10; see Pierce, 762 So.2d at 614. Accordingly, the Department’s claim for an offset for the amount received monthly in federal Social Security old age benefits is without merit.

Moreover, there is no evidence that Mr. Hayes was receiving disability benefits from an employer-funded disability benefit plan or any other workers’. compensation benefit. Therefore, the Department failed to prove its entitlement to a credit pursuant to LSA-R.S. 23:1225(C)(l)(c) or (d).

As to the Department’s assertion that Mr. Hayes committed fraud by claiming to be disabled, when in fact he was observed performing physical work at his tire shop, we note that Mr. Hayes testified that he did very little work on his daily visits to the shop. Dolphin’s work was performed by its employees, but Mr. Hayes admitted that he occasionally did things while at Dolphin’s that made his back worse. The Department |1flrelied on the testimony of an investigator, who indicated that Mr. Hayes was doing more than sedentary-type work at the tire place. Specifically, he said he observed Mr. Hayes using a hydraulic jack one time, rolling a tire across the floor one day, and rolling a wheeled toolbox on another day. However, neither of the latter two observations were in the investigator’s written report, and he admitted that the difference between the outside light and the inside darkness of the shop made it difficult to see and impossible to videotape or photograph the work activities. Given the obvious credibility assessments made by the WCJ with regard to Mr. Hayes’ and the investigator’s testimony on this issue, we are unable to conclude that the WCJ erred in failing to reduce or eliminate the SEB to which Mr. Hayes was entitled.

Penalties and Attorney Fees

At the time of Mr. Hayes’ accident, the applicable statutory authority for assessing an employer with penalties and attorney fees depended on whether the employer had failed to commence the payment of benefits in a timely fashion or had discontinued benefits that had been timely paid. See Russell v. Swelling Personnel, 02-1347 (La.App. 1st Cir.5/9/03), 849 So.2d 588, 591. Penalties and attorney fees were recoverable under LSA-R.S. 23:1201(F) if the employer or insurer failed to commence payment of benefits timely or failed to pay continued installments of indemnity benefits or medical benefits timely, unless the claim was reasonably controverted. Attorney fees, but not penalties, were recoverable under LSA-R.S. 23:1201.2 if the employer or insurer arbitrarily and capriciously discontinued payment of benefits due. Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41, 44. These statutes provided for the imposition of penalties and attorney fees to discourage indifference and undesirable conduct by employers and insurers and were essentially penal in nature. Although the workers’ compensation law is to be liberally construed with regard to | ^benefits, penal statutes are to be strictly construed. Cooper v. St. Tammany Parish School Board, 02-2433 (La.App. 1st Cir.11/7/03), 862 So.2d 1001, 1009, writ denied, 04-0434 (La.4/23/04), 870 So.2d 300. The determination of whether an employer should be cast with penalties and attorney fees is essentially a question of fact, and the trial court’s finding shall not be disturbed absent manifest error. Authement v. Shappert Eng’g, 02-1631 (La.2/25/03), 840 So.2d 1181, 1188. The crucial inquiry in making this determination is whether the employer had an objective reason to deny benefits. Id.

The Department submitted that it terminated the TTD benefits in February 2001 with the week ending January 12, 2001, as a result of Mr. Hayes being observed doing physical work at his tire business at a time when he had declared that he was unable to lift anything, and as a result of his failure to report the earnings that he had been receiving from the tire business. Accordingly, the Department urged that its termination of TTD benefits was not arbitrary and capricious and the award of penalties and attorney fees was improper. In making this argument, the Department overlooks the basis cited by the WCJ for making such awards. The WCJ’s decision to award penalties and attorney fees was based on the Department’s failure to initiate SEB payments at two particular times: (1) after the February 12, 2001 release to sedentary-type work by Dr. Barrow, and (2) after what would have been the expiration of the transitional job made available to him, March 26, 2002.

Since this case involves a failure to pay benefits by the Department, the applicable provision is LSA-R.S. 23:1201(F), as it existed prior to the 2003 amendment, which required that the claim be reasonably controverted in order to avoid penalties and attorney fees. To reasonably controvert a claim, the employer or its insurer must have had some valid reason or evidence upon which to base its denial of benefits. Brown v. Texas-LA Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885, 890. To | ⅞1 determine whether the employee’s right to benefits had been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under LSA-R.S. 23:1201(F), a court must ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the employee throughout the time it refused to pay all or part of the benefits allegedly owed. Id. Therefore, the issue is whether the Department had any legal or factual basis for refusing to reinstate medical and indemnity benefits upon receipt of evidence from Mr. Hayes’ treating physician that he was only capable of sedentary work, which he could probably not do full-time, and later, upon what would have been the expiration of the temporary job at Department headquarters, when Dr. Barrow had indicated his condition was permanent. Considering the evidence presented, we conclude that the WCJ did not manifestly err in finding that the Department had no objective reasons to deny benefits that would have enabled it to reasonably controvert Mr. Hayes’ right to benefits in this case.

Decree

For the foregoing reasons, the judgment of the Office of Workers’ Compensation Administration is affirmed. All costs of this appeal in the amount of $246.69 are assessed to the Department of Public Safety and Corrections.

AFFIRMED.

McCLENDON, J., concurs and assigns reasons.

McCLENDON, J.,

concurs, and assigns reasons.

LI respectfully concur. Based on the numerous credibility determinations herein, I cannot say that the WCJ erred, and, therefore, am bound to concur in the result.

      . The Department is the proper party defendant. See LSA-R.S. 36:401(A) and (B)(4).

      .In 1998, Mr. Hayes bought Dolphin’s Used Tires, which he operated through employees. His affidavit alleged he had derived no income from the business, nor had he paid himself any wages or salary.

      . At the trial, the parties stipulated that Mr. Hayes’ claim for temporary total disability benefits had prescribed.

      . The judgment declared that Mr. Hayes was not entitled to SEB from March 26, 2001, to March 26, 2002.

      .Section 1208 applies to any false statement or misrepresentation, including one concerning a prior injury, made specifically for the purpose of obtaining workers’ compensation benefits; therefore, the statute generally becomes applicable at the time of an employee’s accident or claim. Newman v. Richard Price Const., 02-0995 (La.App. 1st Cir.8/8/03), 859 So.2d 136, 140, citing Resweber v. Haroil Constr. Co., 94-2708, 94-3138 (La.9/5/95), 660 So.2d 7, 14.

      . Section 1208 was subsequently amended by 1997 La. Acts, No. 90, § 1; by 1997 La. Acts, No. 394, § 1; by 1997 La. Acts, No. 1108, § 1; by 2003 La. Acts, No. 702, § 1; and by 2005 La. Acts, No. 257, § 1.

      . Copies of these unsigned forms, along with Mr. Hayes' income tax statements for 1999 through 2004, were in the record.

      . The Department raised the issue of Mr. Hayes’ violation of LSA-R.S. 23:1208(G) via a motion for summary judgment, and it re-urged this defense in a subsequent supplemental answer and reconventional demand. Nonetheless, the WCJ did not address this specific issue in its judgment. Silence in a judgment on any issue that has been placed before the court is deemed a rejection of the claim. Wood v. Brian Harris Autoplex, 04-1316 (La.App. 1st Cir.8/3/05), 923 So.2d 17, 22 n. 3.

      . According to Mr. Hayes, he reported the incident to Ms. Augustine several days after the injury, but she did not complete an accident report until February 4, 1998. The Department acknowledged that the report date may have been a typographical error, in light of the fact that she admittedly had been informed about the accident on February 4, 1997. The report also is stamped "entered Feb 8, 1997,” further emphasizing the erroneous report completion date.

      . Evidence in the record reveals that Dr. James, Dr. R.P. St. Amant, and Dr. David R. Carver were all employed with the Baton Rouge Family Medical Center.

      . Mr. Hayes testified that he was twice (in October 1999 and May 2000) placed on family medical leave by the Department after his accident because of his back.

      . Although Mr. Hayes takes issue with this finding in his brief, he failed to file a motion for appeal or an answer to the Department's appeal; therefore, the WCJ's finding that Mr. Hayes was not entitled to SEB for the period of March 26, 2001, to March 26, 2002, is not properly before this court on appeal. See LSA-C.C.P. art. 2133.

      . Therefore, we find it unnecessary under the facts of this case to determine whether Davis v. Cippriani’s Italian Restaurant, 02-1144 (La.App. 1st Cir.2/14/03), 844 So.2d 58, writ denied, 03-0753 (La.5/9/03), 843 So.2d 403, required Dr. Barrow's written approval of this available job.

      .LSA-R.S. 23:1221(3)(d)(iii) was amended by 2001 La. Acts, No. 1014, § 1, and 2001 La. Acts, No. 1070, § 1, to eliminate the reference to “old age insurance benefits under Title II of the Social Security Act.” The amendments were identical.

      . Subparagraph (C)(1)(b) was repealed by 2003 La. Acts, No. 616, § 1.

      . LSA-R.S. 23:1201(F) has since been amended by 2003 La. Acts, No. 1204, § 1, effective August 15, 2003.

      . LSA-R.S. 23:1201.2 was repealed by 2003 La. Acts, No. 1204, § 2, effective August 15, 2003. The substance of former LSA-R.S. 23:1201.2 is now addressed in LSA-R.S. 23:1201(1).

      . This argument also conflicts with the investigator’s testimony and report, which indicated he placed Mr. Hayes under surveillance from March 1, 2001, through March 13, 2001. Obviously, the investigator’s observations occurred after the Department had terminated benefits.


source: Caselaw Access Project

author: PARRO, J.

license: Public Domain

text:
    Judy RIDEAU and Kerry Bardell v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al.
    No. 2006 CA 0894.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 29, 2007.
    Rehearing Denied Oct. 22, 2007.

      Walter Landry Smith, Baton Rouge, for Plaintiffs-Appellees/Appellants Judy Ri-deau and Kerry Bardell.
    Matthew W. Pryor, Timothy E. Pujol, Brittany A. Keaton, Pujol & Pryor, Prai-rieville, for Defendants-Appellants/Appel-lees State Farm Mutual Automobile Ins. Co. and Ward’s Trucking Service, Inc.
    Before: PARRO, GUIDRY, and McClendon, jj.
   PARRO, J.

|2Both the plaintiffs and defendants in this case appeal a judgment based on a jury verdict arising out of an accident in which a child was killed when a truck hit her as she tried to cross a roadway. The plaintiffs and defendants challenge certain evidentiary rulings and the jury’s allocation of fault; the defendants also appeal the assessment of court costs and the amount of damages. We amend in part and affirm as amended.

FACTUAL AND PROCEDURAL BACKGROUND

Right at sunset on January 81, 2003, ten-year-old Bria Bardell tried to cross the two-lane road in front of her house to get to the church parking lot across the road, where a group of children were preparing to board a school bus for a skating outing. Bria’s mother was on her way to work and was running late. Before she left for work, she stopped and asked a church acquaintance, who was with his grandson in front of the church, to help Bria cross the road safely. He watched Bria as she ran down the long driveway from her house to the roadside, where she stopped and looked both ways. There was a long gap in traffic in both directions when Bria paused at the end of her driveway and looked. She then turned to her right and walked southbound about 20-25 feet on the shoulder of the road, apparently intending to line up directly opposite the church driveway before crossing. At that point, although she looked to her right again, she did not look to her left before stepping onto the roadway. The church acquaintance who was watching Bria saw a truck approaching, but even though he shouted and waved his arms, he was unable to get Bria’s attention to warn her. When she stepped onto the roadway, she was hit by a southbound mail delivery truck; she died shortly afterward of her injuries. The truck was driven by Simuel Ward, owned by Ward’s Trucking Service, Inc. (Ward’s), and insured by State Farm Mutual Automobile Insurance Company (State Farm).

laBria’s parents, Judy Rideau and Kerry Bardell (collectively, the plaintiffs), filed suit against Ward’s and State Farm (collectively, the defendants), alleging that Mr. Ward was acting within the scope of his employment with Ward’s when the accident occurred and that his negligence was the sole cause of Bria’s injuries and death. The defendants answered, claiming the accident was caused exclusively by Bria’s negligence or, in the alternative, by her comparative fault for failing to take proper precautions before entering the street. They also averred that the accident was caused and/or contributed to by the negligence and/or strict liability of other unnamed third parties.

After a trial, the jury found that Ward’s was vicariously liable through its employee for 60 percent of the fault and that Bria and her mother, Ms. Rideau, were each 20 percent at fault. They awarded general damages in the amount of $840,000 to Ms. Rideau and $360,000 to Mr. Bardell, as well as medical expenses of $1,337.52 and funeral expenses in the amount of $10,804.55. The trial court had a separate hearing concerning special items of costs. After that hearing and after applying the allocations of fault, the judgment ordered the defendants to pay Ms. Rideau $504,000; to pay Mr. Bardell $216,000; to pay them, in solido, $7,285.24; to pay them, in solido, all court costs; and to pay them, in solido, special items of costs in the amount of $4,612.38, together with legal interest from date of judicial demand on all awards.

The plaintiffs filed a motion for judgment notwithstanding the verdict, asking the court to strike either the 20 percent of fault allocated to Bria or the 20 percent of fault allocated to her mother, and to proportionally re-allocate fault to either Bria or her mother. The defendants also filed a motion for judgment notwithstanding the verdict, or alternatively, for a new trial, seeking a reversal of the jury verdict on both liability and damages. The trial court denied both sides’ motions, and both plaintiffs and defendants then appealed.

The plaintiffs contend it was legal error to assign fault to Bria’s mother, because she had no duty to accompany her child across the road, when the evidence showed Bria was an intelligent and mature child who had been instructed in how to cross and [¿had crossed this road on her own countless times at this location. They also contend that if there were such a duty, Ms. Rideau satisfied it by asking a church acquaintance, John McCrory, to help Bria cross the road safely. They ask for a reallocation of fault, striking either the fault attributed to Ms. Rideau or the fault attributed to Bria — or alternatively, a finding that neither of them were at fault. Finally, they contend the court erred in overruling objections to certain testimony provided by the investigating officer, who did not see the accident and had no training in accident reconstruction.

The defendants contend Mr. Ward could not and did not anticipate that Bria would turn suddenly and start across the road directly in his path. They argue that the law absolves a driver of liability when faced with sudden and unforeseeable actions by a pedestrian; therefore, it was error to assign any fault to Mr. Ward. In the alternative, should some degree of fault be assigned to him, they argue that it should be considerably less than 60 percent. They claim that since Bria was an exceptionally mature child, she should not be given the benefit of the diminished standard of behavior sometimes expected from a child and should bear a greater degree of fault. They also contend the jury could have found that both Bria and her mother were independently negligent — Bria, for failing to look to the left before stepping out onto the roadway, and Ms. Rideau, for failing to take the few extra minutes to ensure that her child crossed the road safely. The defendants also claim that the trial court erred in admitting certain evidence from the Louisiana Driver’s Guide, that the jury abused its discretion in awarding over $1 million dollars to Bria’s parents, and that the court abused its discretion in assessing all court costs to the defendants.

STANDARD OF REVIEW

The appellate court’s review of factual findings is governed by the manifest error/clearly wrong standard. The two-part test for the appellate review of a factual finding is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court; and 2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if there is |Rno reasonable factual basis in the record for the trial court’s finding, no additional inquiry is necessary to conclude there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a trial court’s factual finding only if, after reviewing the record in its entirety, it determines the trial court’s finding was clearly wrong. See Stobart v. State, through Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993).

A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. When such a prejudicial error of law skews the trial court’s finding as to issues of material fact, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. Evans v. Lungrin, 97-0541, 97-0577 (La.2/6/98), 708 So.2d 731, 735. However, the above approach need not be considered when a jury has made some factual findings favorable to each party, and when the legal error affected only one of the findings, but does not interdict the entire fact-finding process. The appellate court should proceed to evaluate each jury finding pertinent to liability in order to determine the applicability of the manifest error rule to each. Picou v. Ferrara, 483 So.2d 915, 918 (La.1986). If only one of the jury’s factual findings is tainted by the application of incorrect principles of law that are prejudicial, the appellate court’s de novo review is limited to the jury finding so affected. Id. at 918-20; see also Buckbee v. Aweco, Inc., 614 So.2d 1233, 1236 n. 7 (La.1993); Boudreaux v. Farmer, 604 So.2d 641, 649 n. 7 (La.App. 1st Cir.), writs denied, 605 So.2d 1373 and 1374 (La.1992).

ANALYSIS

Evidentiary Rulings

All relevant evidence is admissible, except as otherwise provided by law. LSA-C.E. art. 402. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. LSA-C.E. art. 401. Generally, a witness not testifying as an expert may not give testimony in the form of opinions or | ^inferences. This rule is subject to the limited exception of Louisiana Code of Evidence article 701, which provides that a lay witness may provide testimony in the form of opinions or inferences where those opinions or inferences are: (1) rationally based on the perception of the witness, and (2) helpful to a clear understanding of his testimony or the determination of a fact in issue. Louisiana Land and Exploration Co. v. Verdin, 95-2579 (La.App. 1st Cir.9/27/96), 681 So.2d 63, 66, writ denied, 96-2629 (La.12/13/96), 692 So.2d 1067, cert. denied, 520 U.S. 1212, 117 S.Ct. 1696, 137 L.Ed.2d 822 (1997). Thus, a lay witness may give opinion testimony based on his training, investigation, perception of the scene, and observation of physical evidence. Temple v. State ex rel. Dep’t of Transp. and Dev., 02-1977 (La.App. 1st Cir.6/27/03), 858 So.2d 569, 577, writ denied, 03-2116 (La.11/7/03), 857 So.2d 501. The trial court is granted broad discretion in its evidentiary rulings, and its determinations will not be disturbed on appeal absent a clear abuse of that discretion. Schuyten v. Superior Systems, Inc., 05-2358 (La.App. 1st Cir.12/28/06), 952 So.2d 98, 106; Smith v. Smith, 04-2168 (La.App. 1st Cir.9/28/05), 923 So.2d 732, 742.

Addressing first the evidentiary issues raised by the parties, the plaintiffs assert the trial court abused its discretion in allowing the jury to hear certain testimony from Officer Chris Wayne, the Zachary police officer who investigated the accident. They argue that he did not see the accident and had no training in accident reconstruction. Therefore, certain statements made by him, including the observations that no citation was issued to Mr. Ward and that he concluded from his investigation that Mr. Ward was not speeding or driving improperly, were inadmissible lay opinions on the ultimate issues of fault.

After a thorough examination of the trial transcript, we disagree with this contention. Officer Wayne’s statements were merely reports of facts within his personal knowledge, namely, that he did not ticket Mr. Ward and that no evidence at the scene, such as skid marks, indicated Mr. Ward had violated any traffic rules by speeding or unsafe driving. The trial court was quite specific in allowing Officer Wayne to testify only to evidence and conditions he personally had found or not found at the scene when he investigated the accident, and Officer Wayne, himself, was very circumspect |7about providing factual information only. Moreover, these statements were consistent with trial testimony from eye-witnesses, including Mr. McCrory, who stated, “my estimate would be he wasn’t going any faster than the speed limit .... ” Therefore, the trial court did not abuse its discretion in allowing these statements.

The defendants claim the trial court erred in allowing the Louisiana Driver’s Guide for Class D and E licenses to be admitted to establish a motorist’s standard of care when approaching a pedestrian, because, although its principles may be applicable generally, they were not applicable under the facts of this case. For instance, the guide indicates that a motorist has the highest duty to a pedestrian on the side of the road and should anticipate the possibility that the pedestrian will enter the road. The defendants argue that this statement fails to take into consideration the rural nature of this highway, the lack of an intersection or crosswalk, the dark clothing worn by Bria, and her own duty to be careful. However, the principles stated in the Louisiana Driver’s Guide are consistent with Louisiana law concerning the duty of a motorist vis-a-vis a pedestrian. As stated in Baumgartner v. State Farm Mut. Auto. Ins. Co., 356 So.2d 400, 406 (La.1978):

The operator of a motor vehicle, a dangerous instrumentality, has the constant duty to watch out for the possible negligent acts of pedestrians and avoid injuring them. A higher standard of care than that required of pedestrians is imposed upon the motorist commensurate with the hazards his conduct inflicts upon the public safety.

See also Blair v. Tynes, 621 So.2d 591, 596-97 (La.1993); Turner v. New Orleans Public Serv., Inc., 476 So.2d 800 (La.1986). These general principles of law must always be applied to the particular factual circumstances in each case. Moreover, the court instructed the jury concerning the correlative duties of a pedestrian, as described in LSA-R.S. 32:212(B) and LSA-R.S. 32:213, namely, that a pedestrian should not suddenly leave a place of safety and walk into the path of a vehicle that is so close that it is impossible for the driver to yield and that every pedestrian crossing a roadway at a point not within a marked crosswalk or within an unmarked crosswalk at an intersection must yield the right of way to all vehicles on the roadway. Therefore, we find no abuse of discretion in the court’s admission of the statements from the Louisiana Driver’s Guide.

| fJNOV, Negligence, and Allocation of Fault

Article 1811(F) of the Louisiana Code of Civil Procedure authorizes a trial court to grant a judgment notwithstanding the verdict (JNOV) on either the issue of liability or damages or both. A JNOV should be granted only if the trial court, after considering the evidence in the light most favorable to the party opposed to the motion, finds it points so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict on that issue. McLin v. Breaux, 05-1911 (La.App. 1st Cir.11/3/06), 950 So.2d 711, 714, writ denied, 06-2822 (La.1/26/07), 948 So.2d 177; Broussard v. Stack, 95-2508 (La.App. 1st Cir.9/27/96), 680 So.2d 771, 779-80. On issues where virtually no factual dispute exists and no credibility determinations by the fact finder are required, legal questions are within the province of the trial court to decide by entering a JNOV. Id.

Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under the general negligence principles of Louisiana Civil Code article 2315. For liability for damages to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard of care (the breach of duty element); (3) the defendant’s substandard conduct was a cause in fact of the plaintiffs injuries (the cause in fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of protection element); and (5) actual damages (the damage element). Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270, 275-76. Duty is a question of law. The inquiry is whether a plaintiff has any law — statutory, jurisprudential, or arising from general principles of fault — to support his or her claim. Bowman v. City of Baton Rouge/Parish of East Baton Rouge, 02-1376 (La.App. 1st Cir.5/9/03), 849 So.2d 622, 627, writ denied, 03-1579 (La.10/3/03), 855 So.2d 315. Breach of duty, cause in fact, and actual damages are all factual issues. Snearl v. Mercer, 99-1738 (La.App. 1st Cir.2/16/01), 780 So.2d 563, 574, writs denied, 01-1319 and 01-1320 (La.6/22/01), 794 So.2d 800 and 801. Where there are concurrent causes of an accident, the proper |ainquiry is whether the conduct in question was a substantial factor in bringing about the accident. Whether the defendant’s conduct was a substantial factor in bringing about the harm, and thus, a cause in fact of the injuries, is a factual question to be determined by the fact finder. Bonin v. Ferrellgas, Inc., 03-3024 (La.7/2/04), 877 So.2d 89, 94; Manno v. Gutierrez, 05-0476 (La.App. 1st Cir.3/29/06), 934 So.2d 112, 117.

With reference to the allocation of fault when liability is shared by two or more defendants, Louisiana Civil Code article 2323(A) provides, in pertinent part, as follows:

In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined .... If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.

In assessing the nature of the conduct of the parties, various factors may influence the degree of fault, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the' significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. Clement v. Frey, 95-1119, 95-1163 (La.1/16/96), 666 So.2d 607, 611. The finding of percentages of fault pursuant to the comparative fault article is a factual determination. Id. at 610. If the court of appeal finds a “clearly wrong” apportionment of fault, it should adjust the allocation, but only to the extent of lowering or raising it to the highest or lowest point respectively which is reasonably within the trial court’s discretion. Id. at 611; see also Dennis v. The Finish Line, Inc., 99-1413, 99-1414 (La.App. 1st Cir.12/22/00), 781 So.2d 12, 16 n. 12, writ denied, 01-0214 (La.3/16/01), 787 So.2d 319.

The plaintiffs’ first three assignments of error present the question of whether the trial court legally erred in not granting their motion seeking a JNOV and striking either the fault attributed to Ms. Rideau or the fault attributed to Bria. The gist of their argument is that it is logically inconsistent to impose a duty on both Bria and her |Tnmother. If the jury believed the evidence established that Bria was a mature and intelligent child who was competent to cross this road on her own, had crossed by herself at the same location every school day for the previous six months, and knew how to protect herself, then the jury must have found that she was aware of the need for caution. Therefore, it was Bria’s duty and responsibility to take the necessary steps to ensure her own safety when crossing the road. The plaintiffs further contend that as a legal matter, if Bria knew about the potential danger in crossing the road at that location and knew the proper measures to protect herself, then her mother, Ms. Rideau, had no duty to supervise her every time she needed to cross the road. Accordingly, Ms. Rideau could not be at fault for failing to help Bria cross the road on this occasion, and the jury’s imposition of fault on Ms. Rideau is legal error that should have been reversed by the trial court.

In the alternative, the plaintiffs argue that if the jury believed that Bria did not realize the danger involved or did not know how to protect herself, then Ms. Rideau had the duty to supervise Bria as she tried to cross the road. In that circumstance, she was a child under the age of discernment and no fault could be attributed to Bria; only her mother could be negligent for failing to properly supervise her. Therefore, the plaintiffs urge that it was legal error to impose a duty on both Bria and her mother under these facts.

Minors who are incapable of discernment are immune from being found legally at fault. However, this freedom from fault is limited to the minor of tender age who is so incapable of discernment as to also be incapable of being legally at fault. See Turner v. Bucher, 308 So.2d 270, 276 n. 14 (La.1975) (six-year-old child); Fromenthal v. Clark, 442 So.2d 608, 609 (La.App. 1st Cir.1983), writ denied, 444 So.2d 1242 (La.1984) (two-year-old child). The contributory or comparative fault of a child is measured not by the standard of self-care expected of an adult, but rather the self-care expected of a child of his age, intelligence, and experience under the particular circumstances presented to him. See Howard v. Allstate Ins. Co., 520 So.2d 715 (La.1988). In determining whether a child is legally at fault, due regard must be given to the child’s age, maturity, intelligence, and knowledge, generally, and as to the particular situation In involved, as well as to all the facts and the circumstances of the case, including the particular risk that produced the injury. Gremillion v. State Farm Mut. Ins. Co., 331 So.2d 130, 132-33 (La.App. 3rd Cir.1976). In the Gremillion case, a ten-year-old boy who hit his friend while swinging a golf club was found not to understand the risks and potential consequences of his action. He was not advanced in maturity, knowledge, or intelligence, and had failed one grade in school. The evidence did not show that he had sufficient awareness to anticipate that another child might suddenly and without warning place himself in the path of his swing, since such knowledge of children’s rash, impetuous, and careless acts is peculiar to adults. Id. at 133. In Killough v. Bituminous Cas. Corp., 28,329 (La.App. 2nd Cir.5/8/96), 674 So.2d 1091, 1098, a boy just two days shy of his tenth birthday was found legally at fault when his leg and foot were caught in the pump while he was playing on an oil well. He had attention deficit disorder and a learning disability, yet he testified that he knew that an oil well could hurt or kill him, and also admitted he had been warned by his mother to stay away from the wells. In Pritchard v. Safeco Ins. Co., 529 So.2d 449, 452 (La.App. 1st Cir.), writ denied, 532 So.2d 159 (La.1988), this court affirmed a trial court’s dismissal of a negligent supervision claim against the parents of a twelve-year-old boy, in which the trial court had concluded that a negligent supervision theory applied only to younger children, and did not apply to a child who could be independently at fault.

After examining the record in this case, we agree with the plaintiffs that it was legal error for the trial court to deny their motion for a JNOY under these circumstances. The legal theory whereby fault is imposed on a parent due to the parent’s negligent supervision of a child applies only when the child is not old enough to appreciate the danger and to take steps to avoid it. Only in such a case does the parent have a duty to supervise the child. If the child has reached the age of discernment, where he or she knows of the danger in a particular situation or activity and also knows how to avoid that danger, then the parent has no duty to supervise that child in that situation or activity. The existence of a duty is a question of law. Therefore, it was incumbent upon the court to correct the jury’s assignment of fault to both Bria and her mother by allocating it to one or the other. Having failed to do so, [1?and because the allocation of fault to both was tainted by legal error, this court must evaluate the facts and circumstances with regard to Bria and Ms. Rideau de novo to determine whether Bria had reached the age of discernment and could have been independently at fault.

Bria was ten years old. Ms. Rideau testified that she was in the fifth grade at St. Isidore’s, “was very, very bright,” did well in school, and wanted to be a doctor. Shortly before her accident, Bria and a classmate had won the social studies competition and were preparing to go on to the district competition. After Bria’s death, her classmate presented their project at the district competition, where it won first place; the project also placed at the state level. Bria loved to sing, dance, and write poetry. She took piano lessons, took tap and ballet lessons, and was learning how to play the clarinet for the school band. She was very outgoing and could communicate her thoughts verbally and in writing. Her mother said Bria “exhibited wisdom from her birth that was very unusual.” Bria’s church activities included membership in a youth group, performing liturgical dance, and singing solos. Her father confirmed that she was always energetic, creative, and happy. He said, “I guess sunshine is a good word for her.” She was very inquisitive and would ask questions about things she was curious about. Mr. Bardell also said that she was a very caring child, always wanting to help others and sensitive to the needs of her family. She had demonstrated to both parents on various occasions that she knew how to cross a road safely. In fact, during the six months since starting fifth grade, Bria had crossed the road where the accident occurred on a daily basis during the school year to get off the school bus when it stopped across the road from her house. On the evening when the accident occurred, Bria indicated her awareness of the danger and her ability to protect herself by her actions when she reached the end of the driveway; she stopped and looked in both directions for traffic, thus indicating that she knew the risk of oncoming traffic and also knew how to avoid harm.

Under the particular facts and circumstances of this case, and keeping in mind Bria’s age, maturity, intelligence, and knowledge of the proper ways to protect herself when crossing a road, we conclude that Bria could be and was independently at fault, as the jury found. For this reason, the negligent supervision claim against her mother | ]Swas legally inapplicable, because Ms. Rideau had no duty to supervise Bria in this situation. Therefore, the allocation of fault to Ms. Rideau must be reversed, and this court must re-allocate the fault attributed to Ms. Rideau to Bria.

Before completing the re-allocation of fault, however, we must address the defendants’ claim that the jury’s allocation of 60 percent of the fault to Mr. Ward was manifestly erroneous, and that either no fault or considerably less fault should be attributed to him. The jurisprudence of this state places a high degree of care upon a motorist who sees a child on or near the road and imposes upon him a duty to anticipate that the child, possessed of limited judgment, might be unable to appreciate impending danger, is likely to be inattentive, and might suddenly place herself in a position of peril. Buckley v. Exxon Corp., 390 So.2d 512, 514 (La.1980). Every driver is required to exercise due care to avoid colliding with any pedestrian upon any roadway, to give warning by sounding the horn when necessary, and to exercise proper precaution upon observing any child upon or near a highway. See LSA-R.S. 32:214; Weatherford v. Commercial Union Ins. Co., 93-0841 (La.App. 1st Cir.5/20/94), 637 So.2d 1208, 1210, aff’d, 94-1793 (La.2/20/95), 650 So.2d 763. The duty to exercise greater than ordinary care to avoid injury to a child becomes operative or exists in favor of the child when her presence is known or should have been known to the operator or driver of a motor vehicle under the existing facts of the particular case. The motorist, upon discovering the presence of children in his path of travel or in a position where they could become imperiled, is under a duty to exercise the highest degree of care to avoid injury to them. Each case must be adjudged on the facts peculiar to it. No one case is absolutely controlling of another, as few cases are identical factually. Id. In McFarland v. Industrial Helicopters, Inc., 502 So.2d 593, 596 (La.App. 3rd Cir.1987), the court premised the driver’s fault on his failure to maintain a proper lookout, thus failing to see a two-year-old child standing beside the road in a position where he 114should have been seen by the driver. The truck driver testified that he was checking his rearview mirror to make sure his load was secure, and when he looked back at the roadway, “the little boy was right there.” Though he swerved the truck to avoid hitting the child, the driver said he never saw him until just before the impact. Id. at 596.

Mr. Ward testified that he was driving south from Clinton and was nearing Zachary on a mail delivery route that he had been traveling about two to three times each week for three to four years. He was familiar with the area and knew it was primarily residential at the accident site. The speed limit was 55 miles per hour, and Mr. Ward at various times said he was driving about 40, 45, or 50 miles per hour, but consistently stated he was not exceeding the speed limit. The accident occurred about 5:45 p.m., and the sun had set. Mr. Ward stated at trial that it was much darker than normal. However, he admitted that in a taped statement four days after the accident, he had told an insurance adjuster that it was “half dark.” He did not recall any artificial lighting being on at the time of the accident. He indicated that traffic was very heavy, but later acknowledged that although traffic was often heavy on Plank Road, it had let up and was not bad right at that time and place. Mr. Ward said Bria was wearing dark clothes, and he did not see her at all until she stepped out into his lane of travel about ten to twelve feet in front of his truck. He swerved hard to the left, but was unable to avoid hitting her. He estimated that she was in the middle of his lane of travel when he hit her. The truck’s right front bumper hit the child and threw her onto the right shoulder of the road. His truck ended up parked on the shoulder on the opposite side of the road. Mr. Ward said he did not slow down or honk the horn, and took no evasive action other than the last-second swerve to the left, because he did not see Bria before that time.

Photographs of the accident site show a flat, straight stretch of two-lane highway, marked with a yellow dashed line at the center and a white unbroken line at the edge of the road, beyond which there is a light-colored, flat, paved shoulder. Based on the computations of both the plaintiffs’ expert, James Sobek, and the defendants’ expert, Charles Prewitt, Mr. Ward had a completely unobstructed sight line and was about 700 feet away from Bria when she reached the end of her driveway and began ^walking on the shoulder. Mr. Prewitt acknowledged that at 600 feet, Mr. Ward might have discerned that there was a pedestrian on the shoulder. And at 300 feet, Mr. Ward could probably tell that there was a pedestrian on the shoulder and could make out some of the details, such as her movements or a turn of the head. Mr. Prewitt also admitted that at 300 feet, going 55 miles per hour, “[Mr. Ward] could slow down and perhaps avoid impact or he could have swervedf;] he would’ve had enough time to do some swerving maneuver.” Mr. Sobek estimated that Mr. Ward had at least ten seconds during which Bria was within his unobstructed sight line, which gave him plenty of time to discern her and avert the accident. Mr. Sobek said Mr. Ward should have been able to see Bria “[w]alking toward the road, apparently stopping at the side of the road, ... looking left, looking right, and then walking along the side of the road and then stopping again and finally moving out.” He opined that Mr. Ward “was not paying attention to the situation ahead of him for an extended period of time.”

The police officer was dispatched to the scene at 5:42 p.m., so obviously the accident had occurred before that time. U.S. Naval Observatory data was in evidence and was used by both experts to determine that on January 31, 2003, sunset occurred at 5:40 p.m., and civil twilight, defined as the limit at which illumination is sufficient under good weather conditions for terrestrial objects to be clearly distinguished, lasted until 6:05 p.m. Although there was some cloud cover, there was no rain or fog when the accident occurred. Mr. McCrory testified that “it was pretty clear as far as visibility was concerned,” and said he could see Bria as she left her house and began to walk down her long driveway toward the road. This put him at a distance of 777' from her, which included the length of her driveway and the width of the road to the point where he was standing in the church parking lot. Another eyewitness, Eric Hopkins, said that there was still enough light to see from his position on the porch of the church office. A neighbor, Mark Lanier, who was working with his cattle about 800' to 1000' from the accident site, stated that he did not see the accident, but when he looked up immediately after the accident, he could see people moving across the road, could tell |1fihow many there were, and could discern whether they were male or female. Debra Pierre, who had previously worked for the plaintiffs’ attorney for one week prior to taking another job, was asked by him to observe the lighting conditions at the accident site exactly one year after the accident. When she took a satellite-radio-controlled clock to the site on January 31, 2004, at exactly 5:42 p.m., the sky was overcast with thick, dark clouds. Despite that, she observed that “[t]here was still plenty of daylight to see.” Visibility did not decrease until about 6:00 p.m., at which time it “was getting a little dark.” Mr. Lanier testified that he was just leaving his driveway when Ms. Pierre was making her observations, and said there was still enough daylight at that time to see details on mailboxes “quite a ways” down the road. The experts for both sides concluded that the lighting was not a factor in the accident.

Based on our review of the evidence, we find there is a reasonable factual basis in the record for the jury’s allocation of 60 percent of the fault to Mr. Ward. There was ample evidence from which the jury could have concluded that if Mr. Ward had been paying attention, he would easily have seen Bria walking along the paved shoulder of the road at some point between 700 feet and 300 feet before the point of impact. While he closed the distance between them, Mr. Ward had plenty of time to discern that a child was walking alone in a position of danger and to slow down, move to the left, and/or sound his horn.

Since we have found a reasonable factual basis exists for the jury’s allocation of fault to Mr. Ward, we have reviewed the record in its entirety'to determine whether or not the finding was clearly wrong. In doing so, we note that Bria and Mr. Ward were almost equally at fault in causing this accident. Bria should have taken that last look to the left before stepping onto the roadway, and Mr. Ward should have been paying attention to what was going on within his unobstructed sight line. Because of the greater risk to Bria from Mr. Ward’s inattention and failure to act, as well as his greater responsibility as an adult and as an experienced, professional driver vis-á-vis a child pedestrian, he should bear the higher degree of fault. In addition, from his position high above the roadway in the cab of the truck, Mr. Ward had a better vantage point from which to estimate Bria’s speed and the time in which he would reach her position. h7The risk created by his inattention or inadvertence was great, and he was in a superior position to avoid the accident. Therefore, our thorough review of the record leads us to conclude that the jury’s allocation of 60 percent of the fault to Mr. Ward was not clearly wrong. Since we agree with the allocation of 60 percent of the fault to Mr. Ward, we will not adjust that allocation, but will now merely re-alloeate the entire 20 percent of the fault attributed to Ms. Rideau to Bria, thereby resulting in an allocation of 40 percent of the fault to Bria. The judgment will be modified accordingly.

General Damages

Much discretion is left to the judge or jury in the assessment of general damages. LSA-C.C. art. 2324.1. In reviewing an award of general damages, the court of appeal must determine whether the trier of fact has abused its much discretion in making the award. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. Youn, 623 So.2d at 1261. Only after it is determined that there has been an abuse of discretion is a resort to prior awards appropriate, and then only to determine the highest or lowest point of an award within that discretion. Coco v. Winston Indus., Inc., 341 So.2d 332, 335 (La.1976); Dennis, 781 So.2d at 21.

The jury in this case awarded $1.2 million in wrongful death damages, $840,000 to Ms. Rideau and $360,000 to Mr. Bardell. While it is impossible to place a monetary value on the life of a child, our jurisprudential system has established that a monetary award is the appropriate remedy to one who has suffered the loss of a loved one as a result of the fault of another. Anderson v. New Orleans Pub. Serv., Inc., 583 So.2d 829, 833 (La.1991). The elements of damage for wrongful death are loss of love, affection, companionship, services, and support, as well as medical and funeral expenses. See Duplantis v. Danos, 95-0545 (La.App. 1st Cir.12/15/95), 664 So.2d 1383, 1391; Gibson v. State, Through Dep’t of Transp. & Dev., 95-1418 (La.App. 1st Cir.4/4/96), 674 So.2d 996, 1006, writs denied, 96-1862, 96-1895, 96-1902 (La.10/25/96), 681 So.2d 373 and 374. While the loss of a child is emotionally traumatic to the parents, such a loss does not include the elements of loss of services and support, since a child generally does not contribute to the family in providing these elements. Moreover, the companionship provided by a child is of a different nature than that provided by an adult, and in most cases, does not continue at the same level after the child reaches adulthood and establishes a home separate from the parents. Therefore, we agree with the defendants that this award was an abuse of the jury’s discretion, and we must reduce the damage award to the highest or lowest point of an award within that discretion.

It is clear from the testimony that both parents loved Bria very much, and both were grief-stricken by this loss. However, although Mr. Bardell visited Bria regularly and contributed to her support throughout her life, she did not live with him or visit him in his home. On the other hand, Bria had lived with her mother since birth, and was her mother’s only daughter. Ms. Rideau had organized her life around Bria’s care and activities, and had a very close and loving relationship with her. Based on our comparisons with other cases in which damages have been awarded to parents for the wrongful death of a child, the highest awards within the jury’s discretion would have been $575,000 to Ms. Rideau and $250,000 to Mr. Bardell. See Barton v. Hines, 04-0329 (La.App. 3rd Cir.10/6/04), 884 So.2d 1214, 1222, writ denied, 04-2751 (La.3/18/05), 896 So.2d 999 (award of $575,000 in wrongful death damages to single mother of epileptic son whom she found drowned in an oxidation pond); Dartlone v. Louisiana Power & Light Co., 33,597 (La.App. 2nd Cir.6/21/00), 763 So.2d 779 ($350,000 per parent for electrocution death of 17-year-old son who was an exemplary member of the community, when both parents sought therapy and medication for depression after the death); Courteaux v. State, ex rel. Dep’t of Transp. & Dev., 99-0352 and 0353 (La.App. 4th Cir.9/22/99), 745 So.2d 91, writ denied, 99-3214 (La.1/28/00), 753 So.2d 834 ($275,000 to each parent of 17-year-old only child, who was killed in a head-on automobile collision); Hattori v. Peairs, 95-0144 (La.App. 1st Cir.10/6/95), 662 So.2d 509, writ denied, 95-2677 (La.1/12/96), 666 So.2d 322 ($275,000 to each parent of 16-year-old Japanese exchange student shot by homeowner believing the student was a danger to his family); Rebstock v. Hospital Svce Dist. No. 1, 01-0659 (La.App. 5th Cir.11/27/01), 800 So.2d 435, 439, writ denied, 02-0077 (La.3/15/02), 811 So.2d 914 ($366,250 to mother and $237,800 to father of two-day-old child, reduced to a total of $500,000 due to medical malpractice cap on general damages); Anderson, 583 So.2d at 833 (single mother of three-year-old son who died as a result of being hit by a truck awarded $325,000 by jury, which was reduced by court in JNOV to $150,000); but see Scarbrough v. O.K. Guard Dogs, 03-1243 (La.App. 1st Cir.5/14/04), 879 So.2d 239, 249, writ denied, 04-1440 (La.9/24/04), 882 So.2d 1127 (single mother awarded a total of $897,400 in general damages for her mental anguish for seeing her son at the accident scene and for the wrongful death of her 12-year-old son, who died eleven days after suffering serious injuries when he was hit by a truck’s side mirror while walking down a narrow city street).

For these reasons, we will apportion the general damages, awarding $575,000 to Ms. Rideau and $250,000 to Mr. Bardell. After applying the percentages of fault, the judgment will be amended to order the defendants to pay $345,000 to Ms. Rideau and $150,000 to Mr. Bardell.

Court Costs

According to LSA-R.S. 13:4533, the costs of the clerk, sheriff, witness fees, costs of taking depositions, copies of acts used on the trial, and all other costs allowed by the court are to be taxed as costs. Expert witness fees and the costs of medical reports and hospital records are also to be taxed as costs, pursuant to the provisions of LSA-R.S. 13:3666. See Boleware v. City of Bogalusa, 01-1014 (La.App. 1st Cir.12/20/02), 837 So.2d 71, 73-74. The party cast in judgment is generally taxed with costs; however, pursuant to LSA-C.C.P. art.1920, the trial court has discretion to assess costs of a suit in any equitable manner. On appellate review, only a showing of an abuse of discretion warrants reversal of the trial court’s cost allocation. Thibodeaux v. USAA Cas. Ins. Co., 93-2238 (La.App. 1st Cir.11/10/94), 647 So.2d 351, 362.

| spAfter reviewing the facts of this case and the cost items that were taxed to the defendants, we find no abuse of discretion in the trial court’s cost allocation. Unlike one of the cases cited to this court by the defendants in which costs were reallocated on appeal, this matter does not involve a squabble between two public entities over documents to be revealed under the Public Records Act. See State ex rel. Guste v. Nicholls College Foundation, 592 So.2d 419, 422 (La.App. 1st Cir.1991), writ denied, 593 So.2d 651 (La.1992). Nor is it a case in which this court merely affirmed a trial court’s discretionary decision to allocate costs between plaintiffs and defendants. See Sons v. Delaune, 634 So.2d 1212, 1220-21 (La.App. 1st Cir.1993), writ denied, 94-0729 (La.5/6/94), 637 So.2d 1050. This case involved the untimely death of a beautiful and radiant young girl, due in part to her momentary lapse in judgment at a crucial point in time, but due also to the inattentiveness of a professional truck driver for some period of time during which he could have avoided the accident that killed her. In this situation, we find no abuse of discretion in the trial court’s decision to impose the costs of court on the defendants.

CONCLUSION

Based on the foregoing, we amend the judgment of August 17, 2005, to award $575,000 to Judy Rideau and $250,000 to Kerry Bardell. After applying the re-allocated percentages of fault of 40 percent to Bria Bardell and 60 percent to Simuel Ward, we amend the judgment to order the defendants, Ward’s Trucking Service, Inc. and State Farm Mutual Automobile Insurance Company, in solido, to pay $345,000 to Ms. Rideau and $150,000 to Mr. Bardell. In all other respects, the judgment is affirmed. Each party is to bear its own costs for this appeal.

AMENDED IN PART AND AFFIRMED AS AMENDED.

GUIDRY, J., agrees in part and concurs in the portion of the opinion that reduces the general damage award.

      . The road is Louisiana Highway 67, also known as Plank Road, and the accident occurred in a mixed rural and residential area south of Clinton and just north of Zachary, in East Baton Rouge Parish.

      . The petition and answer designate “Ward Trucking Service, Inc.” as the name of the defendant, but in the judgment, "Ward's Trucking Service, Inc.” is used.

      . Both parties agree with this factual account and the uncontradicted evidence in the record supports it.

      . We note that this amount was not correct. The total award for Mr. Bardell was $360,000, and this sum should have been reduced only by the percentage of fault allocated to Bria, which would have resulted in a final award to Mr. Bardell of $288,000.

      .The plaintiffs did not sue Mr. McCrory and the jury was not asked to quantify any fault on his part. Neither side asserts on appeal that Mr. McCrory was negligent.

      . Since we find Ms. Rideau had no duty to supervise Bria’s attempt to cross the road, we do not address the plaintiffs’ alternative claim that Ms. Rideau satisfied whatever duty she had to supervise Bria by asking another adult to ensure Bria crossed the road safely and obtaining his agreement to do so.

      . This finding was not affected by the error of law, and there is no justification for disregarding the jury's answer to the interrogatory on the verdict form pertaining to Mr. Ward’s fault. The manifest error rule is therefore applicable to this portion of the jury’s verdict. See Picou, 483 So.2d at 918.

      . Mr. Sobek said that, depending on his speed, Mr. Ward was between 660 feet to 806 feet away from Bria when she came within his line of sight.

      . There is no claim for survival damages, which are awarded for the pain and suffering of the victim between the time of injury until the moment of death. There was no evidence in this case that Bria survived the impact for any period of time.