author: GUIDRY, J. PARRO, J., McCLENDON, J.,

text:
    Brad GUILLORY v. BOFINGER’S TREE SERVICE.
    No. 2006 CA 0086.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 3, 2006.

      Debra Talbot Parker, Baton Rouge, Counsel for Defendants, Appellants/Appel-lees, Bofinger’s Tree Service and Louisiana Workers’, Compensation Corporation.
    Michael B. Miller, Crowley, Counsel for Plaintiff, Appellant/Appellee, Brad Guillo-ry.
    Before: PARRO, GUIDRY, and McClendon, JJ.
   GUIDRY, J.

|2In this workers’ compensation proceeding, defendants appeal a judgment awarding the claimant additional disability benefits, penalties and attorney fees. The claimant also appealed, seeking an increase in attorney fees.

FACTS AND PROCEDURAL HISTORY

In July 2003, Brad Guillory was hired by Bofinger’s Tree Service (Bofinger’s) as a full-time employee. His duties included cutting up, moving, and stacking tree limbs and trunks. On April 19, 2004, he injured his back when he bent over to lift a log, and felt a strain in his back. His best friend and co-worker, Chris Kibodeaux, who was working with him at the time, telephoned their boss, George Bofinger, and advised him of what had occurred. Bofinger went to the job site to talk to Guillory, who afterwards went home and remained there for a few days. He then attempted to return to work, but was unable to work because of severe pain. Ki-bodeaux took him to the emergency room at Summit Hospital in Baton Rouge, where he was given pain medication and released with instructions to see an orthopedist. Guillory requested authorization from Bo-finger’s insurer, the Louisiana Workers’ Compensation Corporation (LWCC), to see Dr. Anil Nanda, an orthopedic surgeon. LWCC denied authorization.

Guillory filed a claim with the Office of Workers’ Compensation Administration (OWC) against Bofinger’s and LWCC, seeking an increase in the amount of his weekly disability compensation benefits and authorization to see Dr. Nanda. Trial on the merits was scheduled for February 21, 2005. However, on February 9, 2005, Debra T. Parker was substituted as counsel of record for defendants, and filed a motion to continue trial on the grounds that she had just returned from maternity leave | aand needed additional time to prepare for trial. The motion was granted, and trial was rescheduled for May 23, 2005.

Defense counsel set a supplemental deposition of Guillory to be taken on April 11, 2005. However, his attorney responded with a motion to quash the deposition, which the OWC judge granted. On May 12, 2005, defense counsel filed a motion to compel discovery responses. Several days before trial, defense counsel also filed a motion to continue, alleging discovery was incomplete. Both motions were denied on the morning of trial.

Following trial, the OWC judge concluded Guillory was injured in the course and scope of his employment and rendered judgment granting him an increase in his temporary total disability benefits to $386.67 per week, beginning April 20, 2004, as well as $6,000 in penalties and $8,000 in attorney fees. The judgment further provided that Guillory was entitled to evaluation and treatment by Dr. Anil Nanda. Defendants and Guillory each appealed the judgment.

ASSIGNMENTS OF ERROR

Bofinger Tree Service and LWCC
1. The trial court erred in denying the defendants’ Motion to Compel and Motion to Continue.
2. The trial court erred in holding that claimant sustained a work-related accident.
3. The trial court erred in holding that claimant sustained an accident within the course and scope of his employment with Bofinger’s.
4. The trial court erred in awarding claimant a new choice of physician.
5. The trial court erred in holding that claimant was entitled to a forty hour presumption in calculating his average weekly wage.
6. The trial court erred in holding that defendants were arbitrary and capricious in not paying the correct rate for mileage reimbursement.
|47. The trial court erred in assessing penalties and attorney fees where the claim was clearly reasonably controverted in the choice of physician, average weekly wage, and mileage reimbursement.
Brad Guillory
1. The award of attorney fees should be increased due to the work performed in defending against defendants’ appeal.

PRETRIAL MOTIONS

Defendants argue the OWC judge erred in quashing Guillory’s supplemental deposition, and in denying their motions to compel discovery and to continue trial. They contend these rulings prevented them from fully investigating all pertinent issues. We disagree.

In workers’ compensation cases, discovery shall be governed by La. C.C.P. art. 1421 et seq. L.A.C. 40:1.5915. A party generally may obtain discovery of any information that is relevant to the subject matter involved in the pending action. La. C.C.P. art. 1422. The court has broad discretion in ruling on discovery matters, including the discretion to deny discovery. La. C.C.P. art. 1426; Laburre v. East Jefferson General Hospital, 555 So.2d 1381, 1385 (La.1990). In its discretion, a court can refuse or limit discovery of matters not relevant, unreasonably vexatious, or tardily sought. Lehmann v. American Southern Home Insurance Company, 615 So.2d 923, 925 (La.App. 1st Cir.), writ denied, 617 So.2d 913 (La.1993). See also Belonga v. Crescent City Dodge, L.L.C., 2000-3419, p. 2 (La.3/9/01), 781 So.2d 1247, 1248. Moreover, in order that trials may proceed more orderly and expeditiously, it is well within a court’s discretion to set a cut-off date for pretrial motions. See La. C.C.P. art. 1631 A; Brown v. Associated Insurance Consultants, Inc., 95-1451, 95-1452, 95-1453, p. 7 (La.App. 1st Cir.4/4/96), 672 So.2d 324, 328-29, writ denied, 96-1106 (La.6/7/96), 674 So.2d 970.

IsThe record indicates a deposition was taken of Guillory on November 4, 2004. His attorney filed a motion to quash the taking of a supplemental deposition on the ground that no reasonable basis had been shown for a second deposition. At the motion hearing, defense counsel indicated a major reason a supplemental deposition was needed was that the attorney who originally represented defendants was not as thorough at the first deposition as she would have been in exploring a number of issues. She also stated she wanted to get information on Guillory’s current status, and did not like to go to trial without having her own “take” on the claimant’s credibility. In granting the motion to quash, the OWC judge stated:

The court finds that the deposition was taken on November 4, 2004. LWCC and it’s insured were represented at the time by Sammy Henry who had the opportunity to ask whatever questions he thought would be appropriate at that time.
At this time, to request a supplemental deposition, the court finds it would be basically getting a second bite at the apple. Probably a lot of things would end up being rehashed. The court finds no good cause has been shown to have the supplemental deposition. The motion to quash is granted. Another thing the court is considering is that the trial date is around the corner....

Basically, defense counsel wanted to subject Guillory to the taking of a second deposition because she did not think her former colleague did a thorough job at the original deposition, and because she wanted an opportunity to judge Guillory’s credibility. There were no allegations of new matters that had arisen or changes that had occurred in Guillory’s condition in the approximately five-month period since his original deposition that would have warranted taking a supplemental deposition. Further, information as to Guillory’s current status was contained in his medical records, which were available to defendants. Accordingly, we find | fino abuse of discretion in the OWC judge’s refusal to allow the supplemental deposition.

We also find no abuse of the OWC judge’s broad discretion in the denial of defendants’ motion to compel on the basis it was untimely. The record reflects defendants’ interrogatories and requests for production were propounded on September 22, 2004, and answered by Guillory in October 2004. However, defendants allege in their motion to compel that his responses were incomplete. While current defense counsel was not counsel of record at the time the responses were given, she was substituted as such on February 9, 2005. The next day, she filed a motion to continue on the grounds that she had insufficient time to prepare for trial, which was then scheduled for February 28, 2005. The motion was granted over the opposition of opposing counsel, giving her additional time to complete discovery and prepare for trial. Thus, defense counsel clearly had adequate time to file a timely motion to compel, if she considered Guillory’s original responses to be incomplete. The scheduling order provided that all pretrial motions must be filed and discovery must be complete thirty days prior to the May 28, 2005 trial. Nevertheless, despite this cut-off date, defense counsel waited until May 12, 2005, to file the motion to compel. Under the circumstances, the OWC judge was well within his discretion in denying the motion to compel as being untimely.

Our review likewise reveals no abuse of discretion in the denial of defendants’ motion to continue. The motion was based on defendants’ assertion that discovery was incomplete. At the motion hearing, defense counsel urged as an additional ground that Mohr Alexander, the LWCC claims adjustor in this matter, was unavailable for trial because of an emergency with her child.

|7None of the issues defense counsel wished to further investigate through additional discovery were new issues. The defense was accorded sufficient time to conduct discovery and, since the motion to compel was denied, there was no further discovery pending. We also note that Ms. Alexander, the LWCC adjustor, actually appeared at trial and testified. An OWC judge is vested with wide discretion in granting or denying a continuance, and his ruling will not be disturbed on appeal in the absence of clear abuse. Barrilleaux v. Cypress Bayou Casino, 2002-0735, p. 3 (La.App. 1st Cir.3/28/03), 844 So.2d 326, 328. Given these circumstances, we find no abuse of discretion in the denial of defendants’ motion to continue.

WORK-RELATED ACCIDENT

Defendants argue the OWC judge erred in finding Guillory was injured in a work-related accident because he was not a credible witness, there was no corroboration of his version of the accident, and his trial testimony was rebutted by the medical testimony and the testimony of his boss and the LWCC adjustor. Defendants contend Guillory’s credibility is questionable because of his history of prior workers’ compensation claims and back problems.

An injury is compensable under the Louisiana Workers’ Compensation Act if it results from an accident arising out of and in the course of employment. Cade v. Safety Council of Louisiana Capital Area, 2003-0430, p. 3 (La.App. 1st Cir.12/31/03), 868 So.2d 744, 746. The claimant bears the burden of proving a work-related accident by a preponderance of the evidence. Moore v. Popeye’s Fried Chicken, 96-1889, p. 8 (La.App. 1st Cir.6/20/97), 697 So.2d 5, 9. A claimant’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 | supon the claimant’s version of the incident, and (2) the claimant’s testimony is corroborated by the circumstances following the alleged incident. Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992); Thomas v. Wal-Mart, 2002-1356, p. 8 (La.App. 1st Cir.5/9/03), 849 So.2d 592, 598. Whether a claimant has carried his burden of proof and whether the testimony is credible are questions of fact to be determined by the OWC judge. Cade, 2003-0430 at p. 3, 868 So.2d at 746.

Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. For an appellate court to reverse the factual findings of an OWC judge, it must determine from the record that there is no reasonable factual basis for the findings and the findings are clearly wrong. Boudreaux v. Ideal Rentals, Inc., 2002-1321, p. 5 (La.App. 1st Cir .3/28/03), 844 So.2d 919, 923.

Guillory was the only witness who testified as to the occurrence of the accident. Nevertheless, his version of the accident was reasonable, and the OWC judge found it credible. We note that Guillory’s veracity was at issue only to the extent that the circumstances did not corroborate his testimony or other evidence discredited or cast serious doubt upon his testimony. See Leonard v. James Industrial Constructors, 2003-0040, p. 4 (La.App. 1st Cir.5/14/04), 879 So.2d 724, 727, writ denied, 2004-1447 (La.9/24/04), 882 So.2d 1139. In this case, the circumstances following the accident corroborated Guillory’s version of the accident. First, Guillory’s boss, specifically testified that he received a telephone call from Guillory’s co-worker, Chris Kibodeaux, on the date of the accident advising him of its occurrence. In fact, Bofinger went to the jobsite at that time and spoke to Guillory. Further, after talking to his boss, Guillory went home for the remainder of the day and stayed home for several days because he was 19unable to work. He also sought medical treatment at an emergency room within only a few days of the incident, after he attempted to return to work and realized he was unable to do so because of the severity of his pain.

The record does not support defendants’ assertion that the testimony of Guillory’s boss and the LWCC adjustor, as well as the medical evidence, discredited and cast serious doubt upon his version of the accident. In fact, the testimony of Guillory’s boss actually refuted defendants’ claim that the accident was unreported. Further, the LWCC adjustor testified there was nothing in the LWCC file questioning the occurrence of the accident. In fact, in their answer to Guillory’s disputed claim, defendants admitted that he had sustained a work-related accident.

The OWC judge’s decision to accept Guillory’s testimony regarding the occurrence of the accident is entitled to great deference on appeal. We conclude the judge’s findings were reasonable in light of the record reviewed in its entirety and were not clearly wrong. Accordingly, we find no manifest error in the OWC judge’s conclusion that Guillory was injured in an accident within the course and scope of his employment with Bofinger’s.

FORTY-HOUR PRESUMPTION

Defendants assert the OWC judge erred in concluding Guillory was entitled to the forty-hour presumption provided by La. R.S. 23:1021(10)(a)(i) in calculating his average weekly wage. They maintain La. R.S. 23:1021(10)(a)(ii) was applicable instead because Guillory regularly and at his own discretion worked less than forty hours per week.

|inThe average weekly wage for an injured employee who is paid an hourly wage is determined by applying La. R.S. 23:1021(10)(a), which provides, in pertinent part:

(i) If the employee is paid on an hourly basis and the employee is employed for forty hours or more, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater; or
(ii) If the employee is paid on an hourly basis and the employee was offered employment for forty hours or more but regularly, and at his own discretion, works less than forty hours per week for whatever reason, then, the average of his total earnings per week for the four full weeks preceding the date of the accident; or
(iii) If the employee is paid on an hourly basis and the employee is a part-time employee, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the injury.

At trial, Guillory’s boss, George Bofinger, testified he did not guarantee his employees forty hours a week of work, but informed them when hired that they were to work five days a week, weather permitting. However, he indicated it was difficult for them to work five days a week because the work they performed was very weather dependant. Although Guillory was guaranteed only $300 per week, he had been advised that he could work whenever Bofinger was working. Initially, Bo-finger testified Guillory was a full-time employee. Later in his testimony, Bofinger stated that Guillory was not full-time if that meant working forty hours a week. Bofinger estimated Guillory missed work once or twice a week, due either to his own illness or that of his daughter. Guillory’s trial testimony was in accord with that of Bofinger, except that he disputed the testimony that he usually missed work once or twice a week. He did not think he missed work that often.

|nThe OWC judge gave the following oral reasons for concluding Guillory was entitled to the forty-hour presumption provided by subsection (i):

The court finds that the evidence shows that claimant was hired on a full time basis, that the claimant agreed to make himself available on a full time basis. There’s no proof to the contrary, that the claimant was hired on a part time basis or any other note [sic]. The evidence shows that he was guaranteed a minimum of $300, but the evidence further shows that he was to be paid at the rate [of] $14.50 per hour. The court finds that the claimant is entitled to the 40 hour presumption, which equates to an average weekly wage of $580 and a corresponding temporary total disability rate of $386.69.
There was no evidence whatsoever that the defendant had informed the claimant that he had been hired at anything but full time and to be available on a full time basis. No documents were signed and there was no evidence of anything like that. Furthermore, there was no specific evidence shown as to what days the claimant took off of work on his own voluntary basis to reduce the $580 average weekly wage. Based upon this rate of pay and the correct temporary total disability rate, a penalty of $2,000 is assessed to defendants.

Our examination of La. R.S. 23:1021(10)(a) reveals that Guillory does not fit literally into any of the three subsections provided. Subsection (iii) clearly is inapplicable, because Guillory was not a part-time employee. La. R.S. 23:1021(9) defines a part-time employee as an employee who as a condition of his hiring knowingly accepts employment that (1) customarily provides for less than forty hours per work week, and (2) is classified as part-time by the employer. Prior to trial, Bofinger had always considered Guil-lory to be a full-time employee, and had never informed him otherwise.

Therefore, we must decide which of the two remaining subsections better fits Guil-lory’s situation. Subsection (ii) applies in situations where a full-time employee who was offered forty hours or more per week nevertheless regularly and at his own discretion works less than forty hours |12per week. Defendants strenuously argue this subsection is applicable, both because Guil-lory regularly missed work at his own discretion and because his paychecks for the four weeks prior to his injury indicated he did not work forty hours in any of those weeks. However, we note the paychecks only show Guillory did not work forty hours a week for those weeks, but not the reason why. There was evidence that it was difficult for Bofínger’s employees to work forty hours a week due to the weather-dependent nature of their work. A loss of work time due to weather is not at the employee’s discretion. Additionally, the OWC judge found there was no specific evidence establishing what days Guillory took off on a “voluntary basis” so as to reduce his average weekly wage.

In reaching this conclusion, the ■ OWC judge apparently accepted Guillory’s testimony over that of Bofínger as to the frequency of Guillory’s absences from work. The factfinder’s decisions regarding the credibility of witnesses must be given “great deference” on appeal. When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, although the appellate court may feel that its own evaluations and inferences are as reasonable. Thomas, 2002-1856 at pp. 7-8, 849 So.2d at 598. On the record before us, we find no manifest error in the OWC judge’s implicit finding that Guillory did not regularly miss work at his own discretion so as to make subsection (ii) applicable.

Finally, we observe that subsection (i) also does not fit Guillory’s situation literally, since he was never guaranteed forty hours or more per week. However, other courts faced with this dilemma have concluded that subsection (i) nevertheless should apply to employees in situations similar to that of Guillory. In Eastr-Garrett v. Greyhound Bus Lines, 99-421, pp. 4-7 |ia(La.App. 3rd Cir.11/3/99), 746 So.2d 715, 718-20, the employee knew when she was hired as a bus driver that she might work less than forty hours per week, but she had applied for a full-time position and was so classified by her employer. The Third Circuit affirmed the OWC judge’s determination that subsection (i) was applicable because the record did not show the employee regularly and at her own discretion worked less than forty hours per week. Likewise, in Clark v. Schwegmann Giant Supermarket, 96-2301, pp. 12-16 (La.App. 4th Cir.1/13/99), 740 So.2d 137, 144-46, the Fourth Circuit concluded subsection (i) best fit the facts when the employee did not meet the statutory definition of a part-time employee, she was classified by the employer as full-time, and she did not customarily work less than forty hours at her own discretion. The court reached this conclusion even though the employee was never employed to work forty hours or more per week. Finally, in Baldwin v. Greater Lakeside Corporation, 93-768 (La.App. 5th Cir.1/25/94), 631 So.2d 1238,, 1242-43, the injured employee was a roofer who testified he worked as many hours as he was offered, but could not work when it rained. The Fifth Circuit affirmed the application of subsection (i) to determine his average weekly wage, since it was not shown he regularly and at his own discretion worked less than forty hours per week.

In this case, Guillory was never guaranteed forty hours per week. However, he was classified as full-time by his employer, who also indicated his employees were expected to work five days a week, weather permitting. Additionally, the OWC judge rejected defendants’ contention that Guil-lory regularly worked less than forty hours per week at his own discretion. Under these circumstances, we agree with the reasoning reflected in EasL-Garrett, Clark, and Baldwin that, although subsection (i) may not literally fit [14the situation of an employee in a position such as Guillory’s, it fits best among the three choices provided by La. R.S. 23:1021(10)(a). Accordingly, we find no error in the OWC judge’s calculation of Guillory’s average weekly wage based on the forty-hour presumption of subsection (i).

Defendants also assign error to the assessment of penalties and attorney fees based on the miscalculation of Guillory’s average weekly wage. Under La. R.S. 23:1201 F, penalties and attorney fees for a failure to properly pay benefits shall be assessed unless the claim is reasonably controverted or resulted from conduct over which the employer or insurer had no control. In order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base his denial of benefits. See Brown v. Texas-LA Cartage, Inc., 98-1063, pp. 8-9 (La.12/1/98), 721 So.2d 885, 890. The decision to impose penalties and attorney fees is essentially a factual issue subject to the manifest error or clearly wrong standard of review. Authement v. Shappert Engineering, 2002-1631, p. 12 (La.2/25/03), 840 So.2d 1181,1188-89.

In this case, the error in calculating Guillory’s average weekly wage did not result from conditions beyond LWCC’s control, nor did defendants reasonably controvert Guillory’s claim. The adjustor who initially handled the claim did not utilize the forty-hour presumption because Guillory did not work forty hours per week in the four weeks preceding his injury. However, the file does not indicate the adjustor made any inquiry as to whether this fact was attributable to Guillory’s own discretion or to some other reason. Prior to trial, Guillory’s boss had always considered him to be a full-time employee. Yet there were no adjustor’s notes reflecting whether Guillory was considered by his employer to be a full-time or part-time employee, although the current adjustor indicated this was one of the normal | ^inquiries made in determining an employee’s average weekly wage. If an insurer fails to properly investigate a claim, it subjects itself to penalties and attorney fees. McClendon v. Keith Hutchinson Logging, 96-2373, p. 10 (La.App. 1st Cir.11/7/97), 702 So.2d 1164, 1171-72, writ denied, 97-2872 (La.2/13/98), 706 So.2d 995. Since the record indicates LWCC failed to properly investigate the claim herein, we conclude the imposition of penalties and attorney fees was not manifestly erroneous or clearly wrong.

CHOICE OF PHYSICIAN

Defendants argue the OWC judge committed error in finding LWCC deprived Guillory of his right to see the physician of his choice in the field of orthopedic surgery and in awarding penalties and attorney fees on that basis.

By letter dated April 27, 2004, Guillory’s attorney, Michael Miller, requested that LWCC authorize treatment by Dr. Anil Nanda, an orthopedic surgeon from Shreveport, Louisiana. Miller explained that Guillory wished to be treated by Dr. Nanda, because he previously had performed surgery on Guillory. LWCC denied the request, stating in its April 30, 2004 reply that:

It is not necessary and probably not healthy for Mr. Guillory to travel to Shreveport to see Dr. Nanda. Our records indicate that Mr. Guillory lives in the Baton Rouge area. We have been contacted by Dr. Isaza’s office. Dr. Isa-za’s office has asked for authority to treat Mr. Guillory. Since LWCC and Mr. Guillory’s employer did not schedule the appointment, one would assume Mr. Guillory contacted Dr. Isaza’s office himself. Therefore, I will consider Dr. Isa-za’s [sic] as Mr. Guillory’s choice of physician.

By letter dated May 11, 2004, Miller responded:

I am in receipt of your April 30, 2004 correspondence. I understand that Mr. Brad Guillory sought treatment at the emergency room and the doctor at the emergency room was Dr. Isaza. Therefore, this was not Mr. Guillory’s choice of physician. Mr. Guillory would like to see Dr. Nanda because he previously treated him for his back.
k (¡Mr. Guillory needs medical treatment. He would like to see Dr. Nanda. If you will not authorize Dr. Nanda, he will see Dr. Isaza. However, as previously stated, Mr. Guillory did not choose Dr. Isaza.
Please let me know if you will authorize medical treatment with Dr. Nanda.

LWCC again denied authorization for Guil-lory to see Dr. Nanda. Thereafter, Guillo-ry began seeing Dr. Isaza.

La. R.S. 23:1121 B(l) provides that an employee “shall have the right to select one treating physician in any field or specialty.” The Louisiana Supreme Court has held that this provision gives an injured employee an absolute right to select one physician in any field without the approval of the employer. Smith v. Southern Holding, Inc., 2002-1071, p. 9 (La.1/28/03), 839 So.2d 5,11.

In the instant case, the record demonstrates that Guillory clearly indicated to LWCC that Dr. Nanda was his choice as an orthopedic surgeon. On two occasions he requested authorization from LWCC to be treated by Dr. Nanda. At the time of the requests, Dr. Isaza had not yet treated Guillory, except possibly on the occasion when Guillory went to the emergency room. Guillory only began treatment with Dr. Isaza on July 6, 2004, well after LWCC had twice refused authorization for him to see Dr. Nanda.

Under the circumstances, we find no error in the conclusion of the OWC judge that Guillory was deprived of his choice of physician and was entitled to treatment by Dr. Nanda. LWCC’s action in denying authorization for treatment by Dr. Nanda constituted a violation of La. R.S. 23:1121 B(l). h-¡Although defendants contend it was unreasonable and possibly a health risk for Guillory to be treated by a physician in Shreveport, the statute places no such limitation on an employee’s right to make an initial choice of physician. As noted, the Louisiana Supreme Court has characterized this right as being absolute. See Smith, 2002-1071 at p. 9, 839 So.2d at 11.

Defendants also argue the OWC judge erred in awarding penalties and attorney fees based on LWCC’s refusal to authorize treatment by Dr. Nanda. They assert LWCC was justified under La. R.S. 23:1121 B(2)(a) in assuming Dr. Isaza was Guillory’s choice, since LWCC did not direct him to Dr. Isaza. However, the OWC judge specifically found that Dr. Isaza was “no one’s choice” but was “referred by the emergency room.”

A refusal to consent to an employee’s request to select a treating physician justifies an award of penalties and attorney fees, except where the employee’s claim is reasonably controverted. La. R.S. 23:1201 F; Awthement, 2002-1631 at p. 8, 840 So.2d at 1186. In this case, LWCC initially may have been justified in assuming Dr. Isaza was Guillory’s choice when it received a request for authorization of treatment from his office. However, LWCC acted arbitrarily in continuing to insist that Dr. Isaza was Guillory’s choice once his attorney put LWCC on notice of the actual circumstances, especially since LWCC had no documentation that Dr. Isa-za had actually treated Guillory. Moreover, defendants’ reliance on La. R.S. 23:1121 B(2)(a) is misplaced. Under this provision, if an employee is treated by a physician to whom he has not been specifically directed by the employer or insurer, that physician shall be considered the employee’s choice of physician. However, at the time LWCC denied Guillory’s requests, he had not been treated by Dr. Isaza (except possibly in the emergency room). Accordingly, we find no manifest error in the finding of 118the OWC judge that defendants did not reasonably controvert the fact that it denied Guillory’s right to select the physician of his choice.

MILEAGE REIMBURSEMENT

Lastly, defendants contend the OWC judge erroneously assessed $2,000 in penalties and attorney fees for LWCC’s failure to pay Guillory a total of thirty-nine cents for mileage reimbursement.

When an injured employee uses his own vehicle to obtain medical services, La. R.S. 23:1203 D provides that he is entitled to mileage reimbursement from his employer at the same rate per mile as established by the state for the reimbursement of state employees using their personal vehicles on state business. If an employer fails to pay such mileage reimbursement within sixty days of receiving written notice thereof, it is subject to the imposition of penalties. See La. 23:1201 E and F. In the instant case, defendants admit an error in payment, but argue it was merely an oversight. The discrepancy occurred because LWCC continued to pay mileage reimbursement based on thirty-two cents per mile even after the rate increased on July 1, 2004 to thirty-four cents per mile. Defendants point out that Guillory’s attorney requested reimbursement at the rate of thirty-two cents per mile in a letter to LWCC dated April 27, 2004. Thus, they argue their conduct was not arbitrary or capacious.

However, the proper inquiry is whether the claim was reasonably controverted or the nonpayment resulted from conditions beyond the defendants’ control. See La. R.S. 23:1201 F. The fact that the LWCC adjustor was unaware of the change in the mileage reimbursement rate was not a valid reason for the nonpayment of the thirty-nine cents owed. Further, defendants’ reliance on the fact that opposing counsel requested reimbursement at the rate of thirty-two cents is misplaced, because that was |19the correct reimbursement rate at the time of the request. Defendants failed either to reasonably controvert the claim or to show the nonpayment resulted from conditions beyond their control. Accordingly, despite the fact that the nonpayment was for only thirty-nine cents, we cannot say the OWC judge committed manifest error or was clearly wrong in assessing penalties and attorney fees.

ATTORNEY FEES FOR APPEAL

As the sole assignment of error in his appeal, Guillory seeks an increase in attorney fees for defending against defendants’ appeal. This court has held that such an increase is appropriate when the employer appeals, obtains no relief, and the appeal has necessitated additional work for claimant’s counsel, provided the claimant properly requests the increase. Cade, 2003-0430 at pp. 6-7, 868 So.2d at 748. These criteria are met in the instant case. Guillory’s attorney expended time and effort in preparing an appellate brief and in participating in oral arguments before this court. Accordingly, we conclude an increase of $2,500 in attorney fees is warranted.

CONCLUSION

For the above reasons, we amend the judgment to award claimant, Brad Guillo-ry, additional attorney fees in the sum of $2,500, with legal interest from date of this opinion until paid. The trial court judgment is affirmed in all other respects. All costs of both appeals are assessed equally to defendants, Bofinger’s Tree Service and Louisiana Workers’ Compensation Corporation.

AFFIRMED, AS AMENDED.

PARRO, J., concurs and assigns reasons.

McCLENDON, J., dissents in part, and assigns reasons.

PARRO, J.,

concurring.

Bin light of the applicable statutory law, I feel constrained to agree with the majority’s resolution of the issue pertaining to the award of penalties on the underpayment in connection with Brad Guillory’s claim for mileage reimbursement; however, I do not believe that such an award serves the interests of justice.

Regarding the recovery of penalties for the failure to timely pay, LSA-R.S. 23:1201(F) provides in pertinent part:

Failure to provide payment in accordance with this Section ... shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid ... medical benefits, or fifty dollars per calendar day for each day in which any and all ... medical benefits remain unpaid ... together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars ....

Penalties are warranted where there has been a failure to provide payment in accordance with LSA-R.S. 23:1201. Pursuant to LSA-R.S. 23:1201(E), medical benefits payable under the workers’ compensation law shall be paid within sixty days after the employer or insurer receives written notice thereof. Therefore, it must be determined whether the payment for mileage constitutes a medical benefit payable under the workers’ compensation law.

| jThe employer’s duty to furnish medical expenses is governed by LSA-R.S. 23:1203. Employers are liable for mileage reimbursement in a workers’ compensation case under LSA-R.S. 23:1203(D), which states:

In addition, the employer shall be liable for the actual expenses reasonably and necessarily incurred by the employee for mileage reasonably and necessarily traveled by the employee in order to obtain the medical services, medicines, and prosthetic devices, which the employer is required to furnish under this Section, and for the vocational rehabilitation-related mileage traveled by the employee at the direction of the employer. When the employee uses his own vehicle, he shall be reimbursed at the same rate per mile as established by the state of Louisiana for reimbursement of state employees for use of their personal vehicle on state business. The office shall inform the employee of his right to reimbursement for mileage.

Therefore, an employee may recover reasonable travel expenses and mileage in connection with medical treatment as part of the employee’s medical benefits payable under the workers’ compensation law. See Jeffcoat v. McCann’s Seafood, 96-1259 (La.App. 3rd Cir.5/7/97), 696 So.2d 8, 10-11. Accordingly, an award of penalties is warranted where there has been a failure to provide payment for mileage in accordance with LSA-R.S. 23:1201, that is, within sixty days after the employer or insurer receives written notice thereof. Once the claimant has submitted a documented request for payment of mileage, the burden shifts to the employer or insurer to show that the request was timely paid. Jeanise v. Cannon, 04-1049 (La.App. 3rd Cir.2/23/05), 895 So.2d 651, 667, writs denied, 05-0788 and 05-0785 (La.5/13/05), 902 So.2d 1021.

On July 29, 2004, Guillory made a written request for reimbursement of the mileage in question. It is undisputed that payment was made by the insurer within sixty days after LWCC received Guillory’s request for payment. However, the reimbursement for those expenses incurred in July 2004 was not made at the same rate per mile as established by the state of Louisiana for reimbursement of state employees for use of their personal vehicles on state business. Thus, the medical benefit to which Guillory was entitled under LSA-R.S. 23:1203(D) had not been fully paid within the time delay required by LSA-R.S. 23:1201(E). This technical violation of LSA-R.S. 23:1203(D) constitutes a failure to provide benefits in accordance with the workers’ compensation statutes, entitling Guillory to penalties under LSA-R.S. 23:1201(F).

Accordingly, I respectfully concur.

McCLENDON, J.,

dissents in part, and assigns reasons.

LI respectfully dissent in part. Based on the reasoning set forth in Thomas v. Tony’s Seafood, Ltd., 633 So.2d 675, 681 (La.App. 1 Cir.1993), writ denied, 94-0223 (La.3/18/94), 634 So.2d 856, I disagree with the award of penalties and attorney’s fees for the thirty-nine cent underpayment. For a while both the plaintiff and defendants were unaware of the change in the mileage reimbursement amount. Thus, this appears to be more of a simple miscalculation than an unreasonable refusal to pay.

      . These assignments were designated in brief as issues, rather than as assignments of error. However, defense counsel clarified during oral arguments before this court that they were intended to be assignments of error.

      . After Guillory's accident, La. R.S. 23:1021(10) was redesignated as La. R.S. 23:1021(12) pursuant to the statutory revision authority of the Louisiana Law Institute.

      . After Guillory's accident, La. R.S. 23:1021(9) was redesignated as La. R.S. 23:1021(11) pursuant to the statutory revision authority of the Louisiana Law Institute.

      . Although Guillory’s attorney indicated in his letter to LWCC that it was his understanding that Dr. Isaza had treated Guillory in the emergency room, it is not clear that he actually did so. Dr. Isaza’s records contain no reference to any such treatment. In any event, La. R.S. 23:1121 E provides that a physician who administered emergency treatment to an employee shall not be construed as the employee’s physician of choice.


source: Caselaw Access Project

author: DOWNING, J. DOWNING, J.,

license: Public Domain

text:
    R & B FALCON DRILLING USA, INC. v. LAFOURCHE PARISH SCHOOL BOARD, by and Through Its Duly Authorized Collector for Sales and Use Tax Department, Sarah PERCLE.
    No. 2006 CA 0064.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 3, 2006.

      Richard H. Morgan, Stephen H. Myers, Lafayette, Counsel for Plaintiff/Appellee R & B Falcon Drilling USA, Inc.
    Patrick M. Amedee, Thibodaux, Counsel for Deféndant/Appellant Lafourche Parish School Board by and through its duly authorized Collector for Sales and Use Tax Department, Sarah Percle.

      Before: PETTIGREW, DOWNING and HUGHES, JJ.
   DOWNING, J.

| ¿The Lafourche Parish School Board (Parish), which is the ex officio tax collector for various political subdivisions of La-fourche Parish, appeals a summary judgment rendered against it and in favor of R & B Falcon Drilling USA., Inc. (R & B Falcon). In the judgment, the trial court ordered Lafourche to refund taxes paid, together with interest and costs. The trial court based its ruling on its finding that R & B Falcon was entitled to a tax exemption. For the following reasons, we reverse the judgment of the trial court.

PERTINENT FACTS AND PROCEDURAL HISTORY

In December 2002 the Parish issued an assessment against R & B Falcon in the amount of $154,996.47 for taxes resulting from its drilling activities off the coast of Lafourche Parish from January 1, 1998 through December 31, 2001. The taxes were associated with R & B Falcon’s drilling activities, including the alleged purchase of drilling materials, supplies and equipment. R & B Falcon paid the assessment under protest and filed a suit for redetermination and a refund.

R & B Falcon filed a motion for summary judgment, which was heard in May 2005. The trial court rendered judgment on June 20, 2005, in favor of R & B Falcon and against the Parish, finding that R & B Falcon was entitled to a tax exemption as provided by La. R.S. 47:305.1.

The Parish filed a motion for new trial, which was denied because it was not filed timely.

|sThe Parish then appealed, asserting two assignments of error, summarized as follows:

1. The trial court erred in granting summary judgment to R & B Falcon by permitting an exemption to sales and use tax under La. R.S. 47:305.1 B since drilling the drilling rigs at issue are not considered “vessels,” but rather “barges,” which are not entitled to the statutory exemption;
2. Although the issue is rendered moot in accordance with the above assignment of error, the trial court erred in determining that the drilling rigs were engaged exclusively in foreign or interstate commerce at the time of the taxed transactions.

DISCUSSION

Motions

R & B Falcon filed two motions with this court. One was to supplement the appellate record with new law. The other was a motion to supplement the record with evidence the trial court did not allow R & B Falcon to proffer. Both motions were referred to the panel handling the appeal.

Applicability of New Law

The motion to supplement the record with new law concerns amendments to La. R.S. 47:305.1 B & C(l). This statute was amended to | ¿specifically include barges and drilling ships within the statutory exemption by 2006 La. Act Nos., 1st Ex. Sess., No. 34, § 1, effective February 23, 2006. This act also contained the following provision, in pertinent part:

Section 2. The provisions of this Act are interpretive of R.S. 47:305.1, as amended by Act Nos. 40 and 41 of the 2002 Regular Session on the Legislature, and are intended to explain and clarify the original intent of the Louisiana Legislature. The provisions of this Act shall not apply to any transaction that occurred on or after June 25, 2002 [the effective date of Acts 40 and 41 of the 2002 Regular Session], and prior to the effective date of this Act as provided for in Section 3 of this Act [February 23, 2006], but only with respect to any sales or use tax that may be due as a result of a collection notification event that occurred prior to June 29, 2005 [the date the Louisiana Supreme Court issued it opinion in Mallard Bay Drilling v. Kennedy, 04-1089 (La.6/29/05), 914 So.2d 533, to be discussed within].

R & B Falcon suggests that since the legislature has designated the amendments to La. R.S. 47:305.1 B & C(l) as interpretive, they should apply to the matter before us such that we should draw no distinctions between “ships or vessels,” “barges” and “drilling ships” in our review of whether R & B Falcon is entitled to the tax exemption under La. R.S. 47:305.1.

The Louisiana Supreme Court, however, specifically made such a distinction in Mallard Bay, 04-1089, 914 So.2d 533. It said: “It appears that a major distinguishing factor between a ‘vessel’ and a ‘barge’ is that a barge has no motive power of its own and requires another craft to move.” Id., 04-1089 at p. 23, 914 So.2d at 549.

|fiIn Mallard Bay, the supreme court examined whether another amendment to La. R.S. 47:301 could be applied retroactively. This amendment, provided in 2002 La. Acts, No. 40, supplied a definition for “foreign or interstate coastwise commerce” in light of the supreme court’s decision in Archer Daniels Midland Company v. Parish School Board of the Parish of St. Charles, 01-0511 (La.11/28/01), 802 So.2d 1270. This act also contained a section declaring that the amendments were interpretive of the legislature’s intent.

In concluding that Act 40 (2002) could only be applied prospectively, despite the legislative declaration, the supreme court noted that “the legislature clearly sought to abrogate this court’s interpretation of La. R.S. 47:305.1(B) in Archer Daniels.” Mallard Bay, 04-1089 at p. 14, 914 So.2d at 544. It then stated, “Thus, the situation in which the legislature may properly enact remedial legislation was not present in this instance.” Id., 04-1089 at pp. 14-15, 914 So.2d at 545. It summarized the legislature’s attempt to abrogate its statutory interpretation as follows:

In attempting to abrogate this court’s interpretation of one of the exemptions provided in La. R.S. 47:305.1(B), the legislature improperly assumed the function of the judicial branch of government. Statutory construction and interpretation of legislative acts is solely a matter within the province of the judicial branch. Act 40 represents new substantive law passed under the guise of interpretive legislation. Accordingly, it can only have prospective effect and cannot be applied in this case.

Id., 04-1089 at p. 15, 914 So.2d at 545.

We do not need a motion to consider applicable law. As a general rule, an appellate court is bound to adjudge a case before it in accordance | (¡with the law existing at the time of its decision. Segura v. Frank, 93-1271 (La.1/14/94), 630 So.2d 714, 725. We therefore pretermit decision of R & B Falcon’s motion. Even so, we recognize the principle that “[wjhere the law has changed during the pendency of a suit and retroactive application of the new law is permissible, the new law applies on appeal even though it requires reversal of a trial court judgment which was correct under the law in effect at the time it was rendered.” (Emphasis added.) Id.

Here, however, as did Act 40 (2002) in Mallard Bay, Act 34 (2006) represents new substantive law passed under the guise of interpretive legislation. Accordingly, it can only have prospective effect and cannot be applied here. Since retroactive application of the 2006 amendments to La. R.S. 47:305.1 is not permissible in the matter before us, for the reasons outlined in Mallard Bay, we apply the law in effect at the time of the disputed transactions, January through May 2001.

Disallowed Proffer

R & B Falcon seeks to supplement the appellate record with evidence it claims the trial court impermissibly refused to allow. Alternatively, it requests a remand for the introduction of this evidence. In connection with the Parish’s motion for new trial, R & B Falcon attempted to proffer evidence it suggests would prove its entitlement to a tax exemption under statutory provisions other than those provided by La. R.S. 47:305.1 B, the basis for the trial court’s grant of summary judgment.

R & B Falcon argues that it was entitled to make its proffer pursuant to La. C.C.P. art. 1636. This article provides in pertinent part: “When the court rules against the admissibility of any evidence, it shall either permit the party offering such evidence to make a complete record thereof, or permit the party to make a statement setting forth the nature of the evidence.” Here, |7however, R & B attempted to have the evidence admitted or proffered after the trial was completed and judgment had been rendered. It attempted the proffer in connection with its opposition to the Parish’s motion for new trial. It makes no argument that the evidence was newly discovered. And it argues no principle of law that would have required inclusion of the proffered evidence into the trial record once judgment is rendered.

We are aware of no principle of law that would require the trial court to allow a proffer after judgment is rendered in a case. The party making the proffer could not claim that the failure to admit the evidence in any way affected the judgment. Further, especially where the Parish’s motion for new trial was denied for being filed untimely, and the proffered evidence could not be used in any meaningful way, we see no error in the trial court’s denial of the proffer.

It appears that R & B was attempting to have the record supplemented for purposes of appellate review. However, since the evidence was not properly presented to nor preserved in the trial court, we will not consider it here. This court may not consider evidence for the first time on.appeal. In re Shintech, Inc., 00-1984, p. 7 (La.App. 1 Cir. 2/15/02), 814 So.2d 20, 25. Further, since we find no error on the part of the trial court, we decline to remand the matter for inclusion of the proffer into the record. We deny R & B Falcon’s motion to supplement the record with proffered evidence or, alternatively, to remand.

Summary Judgment

In its well-articulated and well-reasoned “Reasons for Judgment,” the trial court did not consider, nor did any party argue, whether R & B Falcon’s rigs were vessels or barges. Assuming the rigs qualified definitionally for | sthe exemption under La. R.S. 47:305.1 B, the trial court ruled that since the Parish failed to present any evidence contradicting R & B Falcon’s evidence that its rigs left and did not remain in Lafourche Parish waters, no genuine issue of material fact remained under the appropriate jurisprudential standards regarding its entitlement to the tax exemption under La. R.S. 47:305.1 B. It entered summary judgment accordingly.

On appeal, the Parish argues that it is undisputed “that the contrivances owned and operated by [R & B Falcon] were drilling rigs or barges.” R & B Falcon does, however, dispute this characterization of its rigs. In its briefs it argues that the rigs are “jack-up drilling rigs” or “submersibles,” not barges, and are referred to in the record as “drilling vessels.” Therefore, it claims it is entitled to the La. R.S. 47:305.1 B tax exemption. It acknowledges, however, that there is no evidence in the record to support its characterization.

Accordingly, a question of fact exists regarding the proper characterization of R & B Falcon’s rigs, the resolution of which is necessary to determine whether R & B Falcon is entitled to a tax exemption under La. R.S. 47:305.1 B.

R & B Falcon also argues that the trial court did not err in entering summary judgment on other grounds. Particularly, it claims to be indisputably entitled to the tax exclusion found in La. R.S. 47:305 E. It claims, however, that proof of its entitlement to this exclusion is contained in the proffer, which we have disallowed, above.

Accordingly, we conclude that the supreme court decision in Mallard Bay brought to light a genuine disputed issue of material fact regarding the characterization of the nature of R & B Falcon’s rigs that are the object of the Parish’s tax collection efforts. Summary judgment can be entered only if 19there are no genuine issues as to material fact. La. C.C.P. art. 966 B. Therefore, the Parish’s first assignment of error has merit.

We reverse the judgment of the trial court granting summary judgment in favor of R & B Falcon and against the Parish. Accordingly, we pretermit discussion of the issues raised in the Parish’s second assignment of error addressing whether the trial court erred in determining that the R & B Falcon’s rigs were exclusively engaged in foreign or interstate commerce at the time of the taxed transactions.

DECREE

For the foregoing reasons we reverse the judgment of the trial court granting summary judgment in favor of R & B Falcon and against the Parish. Costs of this appeal are to be split equally between the Lafourche Parish School Board and R & B Falcon Drilling U.S.A., Inc., with each party obligated in the amount of $539.90.

MOTION TO SUPPLEMENT RECORD WITH NEW EVIDENCE PRE-TERMITTED; MOTION TO SUPPLEMENT RECORD WITH NON-ADMITTED PROFFER DENIED; REVERSED

DOWNING, J.,

specially concurring.

hi write to express my personal views on this case. I disagree with the Louisiana Supreme Court’s decision in Mallard Bay Drilling v. Kennedy, 04-1089 (La.6/29/05), 914 So.2d 533. However, even though I disagree, I must obey.

In Mallard Bay, the supreme court acknowledges that “barges” and “drilling barges” are considered “vessels” under general maritime law, but it found it “necessary” to reject this general maritime definition. Id., 04-1089 at pp. 21-22, 914 So.2d at 548-49. In doing so, the supreme court found that it “must presume that the legislature deliberately omitted ‘barges’ ” from the exemption at issue. Id., 04-1089 at p. 18, 914 So.2d at 547. It then concluded that a barge was somehow not a vessel unless it had its own motive power. Id., 04-1089 at p. 23, 914 So.2d at 549.

Words, however, should be given their generally prevailing meanings. La. C.C. art. 11. And legislation is the solemn expression of legislative will. La. C.C. art. 2. In Mallard Bay, the supreme court made a guess as to what the legislature intended. By enacting 2006 La. Act Nos., 1st Ex.Sess., No. 34, the legislature explained that the supreme court’s guess was wrong.

| ¡.This is not a separation of powers issue before us for consideration. There are cases that could be, but this is not one of them. Legislation is the expression of legislative will, not judicial will. Mallard Bay should be reversed. And here, the legislature’s reasonable interpretive legislation should apply retroactively.

      . The June 20, 2005 judgment only ordered that R & B Falcon's "motion for summary judgment is hereby GRANTED.” This court issued an order requiring the parties to show cause why the appeal should not be dismissed for lack of appropriate judgment language in that the decretal language did not appear to contain language disposing of or dismissing R & B Falcon’s claims. The rule to show cause was recalled and the appeal was maintained after an amended judgment was filed into the record. This amended judgment ordered the Parish to return R & B Falcon’s money with interest, dismissed the Parish's claims against R & B Falcon, and ordered the Parish to pay costs.

      . The current articulation of these statutory sections is as follows. The amendments are underlined or struck through:
      B. The taxes imposed by taxing authorities shall not apply to materials and supplies purchased by the owners or operators of ships, barges, or vessels, including drilling ships, operating exclusively in foreign or interstate coastwise commerce, where such materials and supplies are loaded upon the any such ship, barge, or vessel for use or consumption in the maintenance and operation thereof; nor to repair services performed upon such ships, barges, or vessels operating exclusively in foreign or interstate coastwise commerce; nor to the materials and supplies used in such repairs where such materials and supplies enter into and become a component part of such ships, barges, or vessels; nor to laundry services performed for the owners or operators of such ships, barges, or vessels operating exclusively in foreign or interstate coastwise commerce, where the laundered articles are to be used in the course of the operation of such ships, barges, or vessels.
      C. (1) For purposes of this Section, the term "foreign or interstate coastwise commerce” shall mean and include trade, traffic, transportation, or movement of passengers or property by, in, or on a ship, barge, or vessel, including a drilling ship;
      (a) Between a point in one state and a point outside the territorial boundaries of such state;
      (b) Between points in the same state where the trade, traffic, transportation, or movement of passengers or property traverses through a point outside of the territorial boundaries of such state;
      (c) At a point in or between points in the same state as part of or in connection with the business of providing or delivering materials, equipment, fuel, supplies, crew, repair services, laundry services, dredging waterways services, stevedoring services, other loading or unloading services, or ship, barge, or vessel movement services to or for ships, barges, or vessels, including drilling ships, that are operating in foreign or interstate coastwise commerce as defined in this Subsection; or
      (d) At a point in or between points in the same state when such trade, traffic, transportation, or movement of passengers or property is part of or consists of one or more segments of trade, traffic, transportation, or movement of passengers or property that either (i) follows movement of passengers or property into or within the state from a point beyond the territorial boundaries of such state, (ii) precedes movement of the passengers or property from within the state to a point outside the territorial boundaries of such state, or (iii) is part of a stream of trade, traffic, transportation, or movement of passengers or property originating or terminating outside the territorial boundaries of such state or otherwise in foreign or interstate coastwise commerce, as defined in this Subsection.

      . Section 2 of 2002 La. Acts 2002, No. 40 contains the following:
      The provisions of this Act are interpretative of R.S. 47:305.1 and are intended to explain and clarify its original intent, notwithstanding the contrary interpretation given in "Archer Daniels Midland Company v. The Parish School Board of the Parish of St. Charles," 01-C-0511 (La.11/28/01), 802 So.2nd 1270, and all cases consistent therewith. Therefore, the provisions of this Act shall be applicable to all claims existing or actions pending on its effective date and to all claims arising or actions filed on and after its effective date.

      . We note that the evidence sought to be supplemented into the record was not attached to the motion to supplement nor in any way presented to us for our possible review.


author: KUHN, J.

text:
    Lynette A. GIRARD v. PATTERSON STATE BANK and St. Paul Guardian Insurance Company.
    No. 2006 CA 0049.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 3, 2006.
    Writ Denied Jan. 26, 2007.

      Eric P. Duplantis, Franklin, Counsel for Plaintiff/Appellant Lynette A. Girard.
    Patricia McKay Clotiaux, Metairie, Counsel for Defendants/Appellees Patterson State Bank and St. Paul Guardian Insurance Company.
    Before: KUHN, GAIDRY, and WELCH, JJ.
   KUHN, J.

1 gClaimant-appellant, Lynette A. Girard, appeals the grant of summary judgment by the Office of Workers’ Compensation (OWC) in favor of defendant-appellee, Patterson State Bank (PSB), concluding that she had not sustained an accident arising out of and in the course of her employment. We affirm.

ISSUE

The sole issue before us in this appeal is whether a loan servicing clerk of a bank, who is injured by a phlebotomist when she voluntarily participates in a blood donation drive during her work hours at a mobile unit parked on her employer’s premises, has sustained an accident arising out of and in the course of her employment so as to be entitled to compensation benefits under the Louisiana Workers’ Compensation Act.

FACTS AND PROCEDURAL BACKGROUND

On August 13, 2003, Ms. Girard went into a mobile blood donation unit owned by United Blood Services (UBS), which was parked on the premises of her employer, PSB. A phlebotomist drew blood, immediately causing a burning sensation in Ms. Girard’s arm, and she could not move her fingers. After advising her that he must have hit a nerve, the phlebotomist adjusted the needle, which allowed Ms. Girard to move her fingers, but the burning sensation continued. As a result, she has had constant pain and eventually was diagnosed "with Complex Regional Pain Syndrome. Ms. Girard returned to work, seeing doctors regularly during that time, but by November 2003, she could no longer perform her duties as a loan servicing clerk. Since then, she has not worked anywhere.

|sOn August 13, 2004, Ms. Girard filed a disputed claim form, averring that she was entitled to receive compensation benefits from PSB as a result of the injury she sustained while donating blood. PSB answered the lawsuit generally denying her claims and, in June 2005, filed a motion for summary judgment seeking dismissal from the lawsuit, averring that Ms. Girard had not sustained an accident that arose out of and in the course of her employment. OWC agreed, and on October 20, 2005, issued a judgment, granting summary judgment and dismissing Ms. Girard’s claims against PSB. This appeal by Ms. Girard followed.

DISCUSSION

On appeal, summary judgments are reviewed de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Brumfield v. Gafford, 99-1712, p. 3 (La.App. 1st Cir.9/22/00), 768 So.2d 223, 225. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover-appellant is entitled to judgment as a matter of law. Id.

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. Id., 99-1712 at pp. 3-4, 768 So .2d at 225.

Under La. R.S. 23:1031(A), an employer is required to pay workers’ compensation benefits to an employee not otherwise eliminated from receiving | ¿benefits if the employee sustains an injury by accident “arising out of and in the course of his employment.” The arising-out-of and the in-the-course-of elements are not synonymous but cannot be considered in isolation from each other. Jackson v. American Ins. Co., 404 So.2d 218, 220 (La.1981). The Jackson court explained that the in-the-course-of element brings into focus the time and place relationship between the risk and the employment. The arising-out-of element, on the other hand, suggests an inquiry into the character or origin of the risk. A strong showing with reference to one of these elements may compensate for a relatively weak showing with reference to the other. Id. As a corollary, it follows that whenever the showing with respect to both requirements is relatively weak a denial of compensation is indicated. Id. In assessing the arising-out-of element, it is appropriate to focus on two factors: the extent to which employee attendance at the event was mandatory and the degree to which the employer’s purpose was served by the activity which gave rise to the injury. See Lexington House v. Gleason, 98-1818, p. 3 (La.App. 3d Cir.3/31/99), 733 So.2d 123, 124, writ denied, 99-1290 (La.6/25/99), 746 So.2d 603 (citing Jackson, 404 So.2d at 220).

The evidence admitted in conjunction with the motion for summary judgment consisted of Ms. Girard’s deposition testimony and the affidavit of Jason Watson, a senior vice president and cashier for PSB. An examination of the evidence reveals the following established facts for purposes of our de novo review of the grant of summary judgment.

Ms. Girard was a loan servicing clerk for PSB. Her duties included answering phones, working on the computer, filing, moving boxes of files, and |Bensuring loan applications complied with the rules and had proper supporting documentation.

Ms. Girard testified that at least twice a year, the UBS mobile unit came onto the PSB premises for blood drives. Bank employees and members of the public were encouraged to donate blood during the drive. She became aware of a blood drive when signs were posted throughout the bank, encouraging blood donations. Ms. Girard believed that some of the posted signs were provided by UBS and some were provided by PSB as well. Ms. Gir-ard was given a memo at a Monday morning meeting, advising her to give blood if she wanted and displaying information concerning the hours the unit would be accepting donations.

Ms. Girard testified that PSB did not require employees to give blood, she felt no coercion from her employer to donate, and not all her co-employees donated blood. Ms. Girard explained that she gave blood to UBS because she thought it was the morally correct thing to do and because PSB asked her to do so. She felt that because PSB had posted signs, it was “pretty much ask[ing] that you give so that other people will give.” Ms. Girard said that she was a regular blood donor and had donated at an earlier blood drive on the PSB premises once before. Since the August 13, 2003 incident, she had not donated any blood.

Mr. Watson’s affidavit established that the blood drive was not a part of either PSB’s United Way effort or any type of competition among banks or other businesses. He attested that PSB simply allowed the blood mobile unit to park in its parking lot and to conduct a blood drive at that location. According to Mr. Watson, PSB did not require its employees to participate in the blood drive, although they were encouraged if they wanted to do so. There was no reward given to employees |fiwho donated, and no punishment meted to those who did not. Mr. Watson stated that he did not give blood in that blood drive.

Insofar as the time and place relationship between the risk and the employment of the in-the-course-of element, the evidence shows that at the time of the injury, Ms. Girard was on her employer’s premises, ostensibly during her regular work hours, when she donated blood in the mobile unit parked on PSB’s premises. But donating blood was clearly not among her job duties as a loan servicing clerk. Thus, the in-the-course-of element does not demonstrate an overwhelmingly strong relationship between the risk of injury of an inaccurate placement of a needle by a phle-botomist and Ms. Girard’s employment duties of processing loan applications for PSB.

Likewise, we find the arising-out-of element, which addresses the character or origin of the risk, falls short of establishing Ms. Girard’s entitlement to compensation benefits under the Louisiana Workers’ Compensation Act. Ms. Girard admitted that her participation was not required and that she did not feel coerced by her employer to donate blood to UBS during the blood drive. Mr. Watson’s affidavit established that PSB employees were neither rewarded nor sanctioned as a result of their decisions of whether to participate in the blood drive. And Mr. Watson’s lack of participation created an inference that those |7empIoyees who chose not to donate were not subjected to employment-related repercussions. Thus, through the evidence, PSB clearly demonstrated that Ms. Gir-ard’s participation was not mandatory. While she may have felt it beneficial to the blood drive that she participate, the record contains no evidence to show that Ms. Girard’s belief was based on anything her employer said or did in conjunction with the UBS blood drive. Thus, in response to PSB’s showing, Ms. Girard offered no proof that her employer expressly or impliedly mandated her participation in the blood drive.

Insofar as the evidence establishing the degree to which the employer’s purpose was served, through Mr. Watson’s affidavit, PSB showed that the mobile blood unit simply parked on the bank premises. Ms. Girard offered no evidence to counter this showing so as to support a finding that her participation in the blood drive furthered her employer’s purposes.

Accordingly, having failed to establish that either the in-the-course-of or the arising-out-of elements strongly favored her, we find no error in OWC’s grant of summary judgment based in its conclusion that Ms. Girard did not sustain an accident arising out of and in the course of her employment so as to entitle her to benefits under La. R.S. 23:1031(A).

DECREE

OWC’s grant of summary judgment, dismissing Ms. Girard’s claims against PSB, is affirmed. Appeal costs are assessed to Ms. Lynette A. Girard.

AFFIRMED.

      . Although in brief Ms. Girard maintains that during her regular work hours, without having to account for her whereabouts on a time clock or otherwise, she left the area that she normally attended to her duties and traversed PSB’s premises to the mobile blood unit to donate blood, the record is devoid of evidence to support these factual assertions. In its appellate brief, PSB states, "At some point during the day on August 13, 2003, Ms. Gir-ard left her desk at the bank, walked out of the bank building, crossed a short part of the parking lot and went into UBS’s mobile blood donation unit,” apparently conceding that Ms. Girard’s injury occurred during her regular working hours. Thus, for purposes of this appeal, we assume that the injury occurred during Ms. Girard’s regular hours of employment.


author: GUIDRY, J.

text:
    Daphne LERAY, Glenn Leray and Elaine Leray v. NISSAN MOTOR CORPORATION IN U.S.A., Nissan Motor Co., Ltd., Jamie Adams, Entergy Louisiana, Inc., and the State of Louisiana Through the Department of Transportation and Development.
    No. 2005 CA 2051.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 3, 2006.

      Jerald P. Block, Matthew F. Block, Thi-bodaux, Darryl J. Carimi, Metairie, Counsel for Plaintiffs/Appellants Daphne Leray, Glenn Leray, and Elaine Leray.
    James S. Thompson, Nicholas C. Gristi-na, New Orleans, Counsel for Defendants/Appellees Louisiana Farm Bureau Casualty Insurance Company and Jamie Adams.
    Keith W. McDaniel, Lance B. Williams, Covington, Counsel for Defendant/Appel-lee Nissan North America, Inc.
    Margaret Jenkins Savoye, New Orleans, Counsel for Defendant/Appellee Entergy Louisiana, Inc.
    Charles C. Foti, Jr., Attorney General, Ted Hernandez, Asst. Attorney General, Baton Rouge, Counsel for Defendant/Appellant State of Louisiana, Department of Transportation and Development.
    Before: CARTER, C.J., GUIDRY, and McClendon, JJ.
   GUIDRY, J.

|3In this appeal, the trial court sustained an exception urging the objection of res judicata raised by one of the named defendants and his insurer. Finding the trial court’s ruling to be incorrect, we reverse in part.

FACTS AND PROCEDURAL HISTORY

On October 14, 1996, Daphne Leray and her parents, Glenn and Elaine Leray, filed the instant suit in Lafourche Parish against Nissan Motor Corporation in U.S.A., Nissan Motor Co., Ltd., Entergy Louisiana, Inc., the State of Louisiana through the Department of Transportation and Development, and Jamie Adams relative to a single-car accident that occurred in Lafourche Parish on October 15, 1995. The accident occurred while Daphne was riding as a passenger in a 1995 Nissan pickup truck driven by Jamie Adams. All defendants, except Jamie Adams, filed answers denying liability for the injuries sustained by Daphne.

On March 16, 2005, an exception urging the objection of res judicata was filed by Louisiana Farm Bureau Casualty Insurance Company and Jamie Adams (collectively “defendants”) asserting that the claims asserted by the Lerays were barred because of a settlement agreement the defendants had entered into with Daphne Leray, wherein she allegedly fully released the defendants of any and all claims relative to the October 15,1995 accident. The Lerays opposed the motion, averring that Daphne Leray had never entered into any such agreement.

A hearing on the exception was held on May 5, 2005, wherein the trial court received into evidence opposing affidavits from the parties and a copy of a check draft issued by Farm Bureau to the order of “Daphne Leray and attorney Jerald Block” in the amount of $15,000.00 “IN FULL PAYMENT FOR full/final settlement any/all claims.” After considering the arguments presented and the Levidence submitted, the trial court sustained the exception in favor of the defendants and dismissed them from the Ler-ays’ suit with prejudice. The Lerays filed a motion for new trial, which was denied by the trial court. It is from the written judgment signed on May 17, 2005, in conformity with the trial court’s May 5, 2005 ruling, that the Lerays devolutively appeal herein.

ASSIGNMENT OF ERROR

On appeal, the Lerays allege that the trial court erred in sustaining the exception raising the objection of res judicata insofar as the judgment dismisses the claims of Glenn and Elaine Leray, who were not parties to the compromise agreement between Daphne Leray and the defendants.

DISCUSSION

A compromise, as between the interested parties, has a force equal to the authority of the thing adjudged. Thus, a valid compromise may form the basis of a plea of res judicata. La. C.C. art. 3078; Lay v. Holi Temporary Services, 02-0290, p. 4 (La.App. 1st Cir.2/14/03), 845 So.2d 488, 490. The doctrine of res judicata, as invoked in Louisiana, is provided by statutory mandate to occur under the following circumstances:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to |5any issue actually litigated and determined if its determination was essential to that judgment.

La. R.S. 13:4231. Further, it has been held that La. R.S. 13:4231, in providing that “a valid and final judgment is conclusive between the same parties,” requires “identity of the parties” to preclude a subsequent suit. Hence, identity of parties exists whenever the same parties, their successors, or others appear so long as they share the same “quality” as parties. Five N Company, L.L.C. v. Stewart, 02-0181, p. 16 (La.App. 1st Cir.7/2/03), 850 So.2d 51, 61. When an exception of res judicata is raised before the case is submitted and evidence is then received from both parties, the standard of review on appeal is manifest error. Pace Royalty Trust Fund, Inc. v. O’Neal, 40,841, p. 6 (La.App. 2nd Cir.4/19/06), 927 So.2d 687, 691, writ denied, 06-1197 (La.9/15/06), 936 So.2d 1271.

In the matter before us, the only evidence of the compromise agreement at issue was a copy of a check issued by Farm Bureau to Daphne Leray and her attorney and the affidavit of David L. Mar-cantel, Jr., a District Claims Manager for Farm Bureau who supervised the processing of the Lerays’ claims. The copy of the Farm Bureau cheek shows both the front and the back of the instrument. The front of the check displays the following language: “IN FULL PAYMENT FOR full/final settlement any/all claims Under Coverage C & A.” The back of the check displays Daphne Leray’s signature. In his affidavit, Mr. Marcantel represented that “in consideration of Farm Bureau’s payment to Daphne Leray through her attorney Jerald Block, a General Release and Indemnity Agreement was executed indicating that plaintiffs released and forever discharged Farm Bureau and Jamie Adams of and from any and all claims or demands ... as a result of the accident at issue which occurred October 15, 1995 and involving Farm Bureau’s insured, Jamie Adams.”

While the Lerays dispute that Daphne Leray ever signed such an agreement, it is undisputed by the parties that Daphne Leray signed and negotiated the | (¡aforementioned check, which alone is sufficient to establish the requirements of a valid compromise agreement. See La. C.C. art. 3071; Audubon Insurance Company v. Farr, 453 So.2d 232, 234 (La.1984) and compare Rivett v. State Farm Fire and Casualty Company, 508 So.2d 1356, 1359-1360 (La.1987). Nevertheless, we find merit in the Lerays’ contention that a compromise signed by Daphne Leray cannot support the objection of res judicata raised by the defendants in opposition to the claims of Glenn and Elaine Leray.

A transaction (compromise) made by one of the interested parties is not binding for the others. La. C.C. art. 3077. This principle applies even when the claims sought to be asserted are derivative of the primary claim that was compromised. Aldredge v. Whitney, 591 So.2d 1201, 1206 (La.App. 2nd Cir.1991). Because the loss of consortium and medical and convalescent care expense claims of Glenn and Elaine Leray are personal to them, the compromise agreement signed by Daphne Leray, in the form of the Farm Bureau check draft, cannot act to waive their right or cause of action on their separate claims. See Aldredge, 591 So.2d at 1206. As observed by the court in Aldredge, although the claim of loss of consortium is derivative of the primary victim’s injuries, the claim is not derivative of the victim’s ability to assert a claim. Aldredge, 591 So.2d at 1207.

CONCLUSION

Accordingly, for the foregoing reasons, we reverse the May 17, 2005 judgment of the trial court, in part, to the extent it that sustained the exception raising the objection of res judicata and dismisses the claims of Glenn and Elaine Leray against the defendants. The judgment is otherwise affirmed. All costs of this appeal are cast to the defendants, Louisiana Farm Bureau Casualty Insurance Company and Jamie Adams.

REVERSED IN PART.

      . On March 18, 2003, the Lerays filed an amending and supplemental petition wherein they added claims against an additional defendant, The Tokio Marine and Fire Insurance Company, Limited, as the liability insurer of the Nissan defendants.

      . Louisiana Civil Code article 3071 provides, in pertinent part, that "[a] transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on....”