text:
    Pauline Arnell Beck BROWN, Russell Brown, Carla Stribling, Crystal Beck Young, Keithon Beck v. Richard SANDERS, M.D.; Pamela Egan.
    No. 2006 CW 1171.
    Court of Appeal of Louisiana, First Circuit.
    March 23, 2007.

      Craig J. Robichaux, Mandeville, for Respondent — Appellee John W. deGravelles.
    Bruce A. Miller, Metairie, for Defendant — Appellant Pamela Egan.
    Before: KUHN, GAIDRY, and WELCH, JJ.
   WELCH, J.

| «Pamela Egan, a nurse practitioner and a named defendant in this medical malpractice action, appeals a judgment that denied her motion for sanctions, alleging that counsel for the plaintiffs, John W. deGravelles, violated La. C.C.P. art. 863(D) by failing to make reasonable inquiry regarding her liability prior to filing the petition naming her as a defendant; and that as a direct result of that action, she was terminated from her job, and suffered loss of income and damage to her personal and professional autonomy and reputátion. For the reasons stated herein, we convert the appeal to an application for supervisory writs, grant the writ, and affirm the trial court judgment denying the motion for sanctions.

APPEALABILITY OF JUDGMENT

At the outset, the denial of a motion for sanctions is an interlocutory judgment; it does not determine the merits of the case. La. C.C.P. art. 1841. The proper procedural vehicle to contest an interlocutory judgment that does not cause irreparable harm is an application for supervisory writs. See La. C.C.P. arts.2087 and 2201. However, pursuant to our authority to exercise our supervisory jurisdiction and in the interest of judicial economy and efficiency, we convert the appeal of this interlocutory judgment to an application for supervisory writs. See Armelise Planting Company v. Liberty Oil and Gas Corporation, BP, 2005-1250, p. 3 (La.App. 1st Cir.6/9/06), 938 So.2d 178, 179.

ACTION OF THE TRIAL COURT

The trial court denied Ms. Egan’s motion for sanctions, finding that Mr. deGra-velles “made reasonable inquiry within a reasonable period of time and took appropriate action to withdraw from this litigation within a reasonable period of time” and, therefore, did not violate Article 863.

| «STANDARD OF REVIEW

A trial court’s factual determination of whether a party violated La. C.C.P. art. 863, which authorizes the imposition of sanctions based on the signing and certification of pleadings, is reviewed on appeal pursuant to the manifest error or clearly wrong standard. Lafourche Parish Council v. Breaux, 2002-1565, p. 5 (La.App. 1st Cir.5/9/03), 845 So.2d 645, 648.

TIMELINESS OF MOTION

The original petition for damages asserting medical malpractice and naming Ms. Egan as a defendant, on which Ms. Egan’s motion for sanctions is based, was filed on February 27, 2003. On October 7, 2003, the trial court granted Mr. deGra-velles’ ex parte motion to withdraw as counsel for the plaintiffs. On January 9, 2004, Ms. Egan filed a motion for summary judgment, which was granted dismissing all claims against her on March 19, 2004. The motion for sanctions underlying this writ was not filed until June 28, 2005, more than two years after the filing of the offending petition and fifteen months after the judgment dismissing Ms. Egan from the suit. Defendant-in-rule filed an exception raising the objection of prescription which was not ruled on by the trial court; after denying the motion for sanctions on the merits, the trial court rendered the exception moot. Although we question the timeliness of the motion, we find the trial court’s ruling on the merits indeed moots the issue of timeliness. Therefore, it is unnecessary to resolve this issue and more appropriate to address the ruling on the merits and dispose of the ultimate issue regarding the trial court’s refusal to impose sanctions.

| ¿LOUISIANA CODE OF CIVIL PROCEDURE ARTICLE 863

Louisiana Code of Civil Procedure article 863 authorizes a court to impose sanctions upon an attorney (or a represented party) who signs pleadings without making an objective reasonable inquiry into the facts and the law. See Cavin v. Harris Chevrolet, Inc., 95-1878, p. 6 (La.App. 1st Cir.5/10/96), 673 So.2d 654, 658. Louisiana Code of Civil Procedure article 863 provides in pertinent part:

B. ... the signature of an attorney or party shall constitute a certification by him that he has read the pleading; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact; that it is warranted by existing law ... and that it is not interposed for any improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of litigation.
D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification ... an appropriate sanction....

(Emphasis added).

ANALYSIS

Louisiana Code of Civil Procedure article 863 has no express “bright line” requirements for the timeliness nor the extent of the investigation necessary for compliance with the article. The Article does require that the sanctions be imposed only after a hearing at which any party or his counsel can present evidence or argument relative to the issues. La. C.C.P. art. 863(E). Moreover, borrowing from the federal jurisprudence interpreting Rule 11, our courts consistently hold that Article 863 sanctions are not to be imposed simply because parties disagree as to the correct resolution of a matter in litigation, and its use is intended only for exceptional circumstances. Sanchez v. Liberty Lloyds, 95-0956 (La.App. 1st Cir.4/4/96), 672 So.2d 268, 272, writ denied, 96-1123 (La.6/7/96), 674 So.2d 972 (citing Gaiardo v. Ethyl Corporation, 835 F.2d 479, 483 (3rd Cir.1987)). (Emphasis added). The trial court should avoid using the wisdom of hindsight and ^should test the signer’s conduct by inquiring what was reasonable to believe at the time the pleading was fíled. Id. (Emphasis added).

Article 863 seeks to strike a balance between the need to curtail abuse of the legal system and the need to encourage creativity and vitality in the law. Lafourche Parish Council v. Breaux, 2002-1565, p. 5 (La.App. 1st Cir.5/9/03), 845 So.2d 645, 648. For an attorney, who owes professional and ethical considerations pursuant to Article 863, and at the same time has the duty of due diligence and timeliness to his clients, this often creates a delicate balance, warranting a case-by-case consideration of the particular facts and circumstances present in each case.

Our jurisprudence provides some guidance by establishing certain factors that are appropriate to consider in determining whether there has been sufficient compliance with the dictates of Article 863. Among the factors to be considered in determining whether reasonable factual inquiry has been made are:

1) The time available to the signer for investigation;
2) The extent of the attorney’s reliance on his client for the factual support for the document;
3) The feasibility of a prefiling investigation;
4) Whether the signing attorney accepted the case from another member of the bar or forwarding attorney;
5) The- complexity of the factual and legal issues; and
6) The extent to which development of the factual circumstances underlying the claim requires discovery.

Sanchez, 672 So.2d at 272 (citing Loyola v. A Touch of Class Transportation Service, Inc., 580 So.2d 506, 510 (La.App. 4th Cir. 1991)).

The factors for determining whether reasonable legal inquiry was made include:

1) The time available to the attorney to prepare the document;
2) The plausibility of the legal view contained in the document;
3) The pro se status of the litigant;
4) The complexity of the legal and factual issues raised.

Sanchez, 672 So.2d at 272 (citing Loyola, 580 So.2d at 510),

| fiPertinent Chronology and Factual Circumstances

The facts and circumstances related to the filing of the petition as revealed by the record can be summarized as follows: On October 24, 2002, Carla Stribling, the daughter of Pauline Brown, who was terminally ill with lung cancer, contacted Mr. deGravelles’ office to discuss the potential of a medical malpractice action against various healthcare providers for the failure to diagnosis her mothers lung cancer. Ms. Stribling related that since approximately February of 2002, hér mother sought treatment for complaints ■ and symptoms possibly related to lung' cancer, but the healthcare providers she saw during this time failed to properly diagnose the cancer. Ms, Stribling spoke by phone with Mr. deGravelles’ paralegal, who generated an intake memorandum. Ms. Stri-bling called Mr. deGravelles’ office again on November 5, 2002. She was told to schedule an appointment to meet with Mr. deGravelles and to gather all medical records from her mother’s providers during the time she was treated for cancer-related symptoms and to bring whatever records she could gather when she came for her appointment.

Mr. deGravelles met with Ms. Stribling on December 27, 2002; Mrs. Brown was too ill to attend the meeting with Mr. deGravelles. Ms. Stribling gave Mr. de-Gravelles a more detailed history of her mother’s medical treatment, including the names, of the various health providers, including Ms. Egan, whom Mrs. Brown had seen, and the time periods during which she sought treatment for symptoms allegedly related to the later diagnosed cancer. Based on the information provided, Mr. deGravelles “calendared” a prescription date of March 1, 2003, and alerted Ms. Stribling to the dangers of the one-year prescriptive period. He also provided Ms. Stribling with an attorney-client contract for her mother and her siblings to sign in order for him to represent them. He provided Ms. Stribling with medical authorizations and instructed her to get them signed by Mrs. Brown and returned, to |7him as quickly as possible because he was unable, based on the information provided, to determine whether there was malpractice in the failure of Mrs. Brown’s healthcare providers to diagnose cancer. He told Ms. Stribling that until he received all of the medical records, he would be unable to have the records and potential claim reviewed by a qualified consultant to determine the viability of such claim.

On January 15, 2003, Mr. deGravelles received the attorney/client contract signed by Ms. Stribling and her brother, Keithon Beck. Because he still had not received any of Mrs. Brown’s medical records, Mr. deGravelles sent her a letter on February 3, 2003, re-urging the significance 'of the prescription date and the importance of getting the medical authorizations and medical records to him that week. He finally received the medical authorizations; and on February 18 and 20, 2003, he sent requests for medical records to Mrs. Brown’s healthcare providers.

Before all of the records were received, but in order to protect the case against prescription, Mr. deGravelles filed a Petition for damages on behalf of Mrs. Brown and her children against Ms. Egan and Dr. Sanders, under whose supervision she practiced, on February 27, 2003, three days before -his estimated prescription date.

On May 13 and 19, 2003, Mr. deGra-velles sent Mrs. Brown’s medical records and films to Dr. Lilian F. Pliner, an oncologist, for her review and expert medical opinion. On July 16, 2003, he received Dr. Pliner’s report in which she hopined that there was no breach of the standard of care in the diagnosis of cancer in Mrs. Brown. Shortly thereafter, Mr. deGra-velles met with Mrs. Brown’s family and advised them of Dr. Pliner’s report and that they would be unable to establish a breach of the standard of care. He told them that based on those findings, he wished to withdraw from the case, and that the decision to dismiss the suit or seek other counsel was theirs. They indicated they wished to seek other counsel. Mr. deGravelles then filed a motion to withdraw as counsel for the plaintiffs, which was granted and signed on October 7, 2003.

APPLICATION OF LAW

In denying Ms. Egan’s motion for sanctions against Mr. deGravelles, the trial court noted the following:

The crux of the issue before the Court is whether or not the filing of the petition by John deGravelles after consultation with one of his clients, a daughter of the plaintiff, constitutes “reasonable inquiry” that the petition was “well grounded in fact.” This determination has to be made, not in a vacuum, but rather taking into account the exigencies of the dag to day practice of law.
In the case at bar, with prescription rapidly approaching, defendant-in-rule took reasonable steps to obtain the necessary information to make an informed decision as to whether or not to file suit. Based upon the information available at the time of the filing of the lawsuit, the lawsuit appeared to be meritorious. Thereafter, he took further steps to determine whether or not the allegations of the plaintiffs could be substantiated by the medical records. It became apparent after a review of the information received, that they could not and that in fact, no actionable negligence existed on the part of Pamela Egan.
Given the actions of the defendant-in-rule and the time frame within which those actions were taken, the Court finds that John deGravelles made reasonable inquiry within a reasonable period of time and took appropriate action to withdraw from this litigation within a reasonable period of time.

(Emphasis added).

Although the relevant jurisprudential factors were not specifically noted, our review of the record reveals that the trial court did, indeed, consider those factors j^and we find no manifest error in the trial court’s decision finding it was reasonable for Mr. deGravelles to file the petition for damages against Ms. Egan under the facts and circumstances of this case. Without delineating each jurisprudential factor, we consider them all in our discussion below.

At the intake interview with Mrs. Brown’s daughter, Mr. deGravelles was informed that among the various physicians and healthcare providers Mrs. Brown- had seen during the time she exhibited cancer-related symptoms, Ms. Egan treated her in December of 2001, and in February of 2002. When he received Ms. Egan’s medical records in March of 2003, he noted that in February, Mrs. Brown’s primary complaint was calf pain, but she also had a chronic cough, ear pain, chest congestion, swollen lymph nodes in her neck, fever and a “productive” cough. Ms. Egan ordered an ultrasound, which ruled out a blood clot, and also ordered a chest x-ray because of the chronic cough and Mrs. Brown’s history of smoking. According to an affidavit executed by Ms. Egan, the “chest x-ray revealed the possibility of a small granulo-ma or fibroma or composite normal shadow” and these findings suggested benign residuals of prior lung infections or pneumonia, but no indication of the possibility of lung cancer at that time. Mr. deGra-velles testified that based on the history relayed to him regarding Mrs. Brown’s symptoms when she saw Ms. Egan in February of 2002, he felt it prudent to consider her as a potential defendant and necessary to obtain all medical records and get a medical expert’s opinion regarding the possibility of liability on any of the providers’ part, including Ms. Egan’s, in failing to diagnose Mrs. Brown’s cancer.

The trial court found, and the record supports, that Mr. deGravelles made reasonable efforts under the circumstances to get the authorizations for the release of the medical records necessary for review by a medical expert prior to making an informed determination regarding liability. The record reveals that he met with |inMrs. Brown’s daughter for the first time approximately two months prior to the prescription date, at which time, based on what she told him, he felt there may be a viable cause of action in medical malpractice. Not only was he dealing with a two-month period of time to investigate the claim and have the records reviewed, but he also had limited access to Mrs. Brown, who was in the terminal stages of her cancer, as well as to her family, who, understandably, gave higher priority to being at their dying mother’s side than gathering her medical records. The record reveals that Mr. deGravelles took all reasonable steps possible to inform his clients about the prescription deadline and the importance of obtaining the authorizations and medical records as quickly as practical under the circumstances. When he was unable to obtain all of the medical records on time, he was faced with the choice of filing suit to interrupt prescription, or allowing an otherwise potentially viable cause of action to be lost forever (prescribe) to his clients’ detriment, possibly subjecting himself to a suit in legal malpractice. Moreover, he was unable to make an informed assessment of the case before having all of the records reviewed by a medical expert. Given the complexities of the medical issues involved in a medical malpractice case, it would be imprudent for an attorney, who does not have the requisite medical expertise, to assess the viability of such an action without the aid and opinion of a medical expert. Therefore, under these circumstances, we cannot find that the trial court manifestly erred in concluding that Mr. deGravelles complied with the dictates of Article 863 when he filed and certified the petition for damages.

Also, as noted by the trial court, once he received the report from his medical oncologist expert that there did not appear to be any breach of the standard of care in the treatment given Mrs. Brown prior to her diagnosis of cancer, Mr. deGravelles promptly took the appropriate steps to withdraw from the case and allow his clients to dismiss it or seek other counsel.

Inin this matter, Mr. deGravelles was faced with what appeared to be a potentially viable medical malpractice action, an impending prescription date, and the practical difficulties of obtaining medical records, exacerbated by the fact that his client was terminally ill at the time. Based upon the time constraints he was under, as well as the limited amount of information he was able to procure prior to the prescription date, despite his due diligence, he was faced with the duties owed to his clients in preserving their potential cause of action, competing with the untenable option of allowing the action to prescribe based on the unavailability of the complete medical records and an informed medical opinion on the viability of the case, and ultimately subjecting himself to a suit in legal malpractice. As found by the trial court, the record supports that under these particular facts and circumstances, Mr. deGravelles acted diligently and professionally. In any event, his conduct does not rise to the level of sanctionable conduct contemplated by Article 863. See Sanchez, 672 So.2d at 273.

CONCLUSION

For all the foregoing reasons, we find the trial court did not manifestly err in denying Pamela Egan’s motion for sanctions against John W. deGravelles and affirm that judgment. Costs of this appeal are assessed to Pamela Egan.

WRIT GRANTED AND MADE PEREMPTORY; JUDGMENT AFFIRMED.

      . On the other hand, a judgment that imposes sanctions pursuant to La. C.C.P. art. 863 is a final judgment for purposes of appeal. See La. C.C.P. art. 1915(A)(6).

      . The motion for sanctions may have been untimely, as it was filed over a year after the filing of the petition. See Connelly v. Lee, 96-1213, pp. 10-11 (La.App. 1st Cir.5/9/97), 699 So.2d 411, 416-17, writ denied, 97-2825 (La.1/30/98), 709 So.2d 710; see also Frazer v. Bruscato, 34-021 (La.App. 2nd Cir. 11/1/00), 772 So.2d 293; General Motors Acceptance Corporation v. Charlie Bates Chevrolet-Buick, Inc., 954 F.2d 1081 (5th Cir. 1992); Mellon Bank Corp. v. First Union Real Est. Equity & Mortgage, Inv., 951 F.2d 1399 (3rd Cir.1991). But as Mr. deGravelles did not seek supervisory review of the denial of his peremptory exception of prescription, we are limited to determining this matter on its merits.

      . On February 19, 2003, Mr. deGravelles received the contract signed by Mrs. Brown, and on February 24, 2003, he received the contract signed by the remaining siblings.

      . On this same date, Mr. deGravelles also filed a petition to establish a medical review panel naming as defendants Mrs. Brown’s other healthcare providers; Ms. Egan, as nurse practitioner, was not qualified under the medical malpractice act.

      . Mr. deGravelles does not dispute that he had all of Ms. Egan’s medical records as early as the end of March, 2003; he explained that it would have been futile to send his expert examiner only partial medical records, as she would be unable to render a complete and thorough opinion until all of the records were reviewed.

      . The record indicates that Mrs. Brown died in October 2003.


source: Caselaw Access Project

author: McClendon, j.

license: Public Domain

text:
    ASCENSION SCHOOL EMPLOYEES CREDIT UNION v. PROVOST SALTER HARPER & ALFORD, L.L.C.
    No. 2006 CA 0992.
    Court of Appeal of Louisiana, First Circuit.
    March 23, 2007.
    Allen D. Darden, Baton Rouge, Counsel for PlaintiffAppellee Ascension School Employees Credit Union.
    Michael A. Patterson, Baton Rouge, Counsel for Defendant/Appellant Provost Salter Harper & Alford, L.L.C.
    Before: PARRO, GUIDRY, and McClendon, jj.
   McClendon, j.

UFrom the denial of its motion for summary judgment, defendants, Provost Salter Harper & Alford, L.L.C. (Provost), appealed. Finding that we lack jurisdiction, we dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

The dispute between Provost and the plaintiffs, Ascension School Employees Credit Union, is based on accountancy malpractice. The initial pleading filed in this case was a motion for summary judgment asserting an exception raising the objection of peremption; a procedural question ancillary to the merits of the accountancy malpractice dispute. After a hearing, the trial court signed a judgment on April 3, 2006, denying the motion for summary judgment.

APPLICABLE LEGAL PRECEPTS

“An interlocutory judgment is ap-pealable only when expressly provided by law.” LSA-C.C.P. art. 2083 C. Further, the provisions of LSA-C.C.P. art. 1915 B do not apply to a denial of a partial summary judgment, nor was there any such certification in this case. See LSA-C.C.P. art. 1915 B(l). Similarly, LSA-C.C.P. art. 968 provides that: “An appeal does not lie from the court’s refusal to render any judgment on the pleading or summary judgment.” A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment. LSA-C.C.P. art. 1841. Thus, a denial of a motion for summary judgment, in whole or in part is an interlocutory judgment that is not appeal-able and cannot be certified as such. See Belanger v. Gabriel Chemicals, Inc., 2000-0747, p. 5 (La.App. 1 Cir. 5/23/01), 787 So.2d 559, 563, writ denied, 2001-2289 (La.11/16/01), 802 So.2d 612 (and cases cited therein); Clark v. Legion Insurance Company, 2002-2487, p. 6 (La.App. 413Cir. 7/23/03), 853 So.2d 684, 687 (and cases cited therein). The same reasoning applies to the denial of exceptions, especially in light of the statutory language directly limiting 1915 B(l) to a ruling that “sustains” a partial exception. Young v. City of Plaquemine, 2004-2305, pp. 4-5 (La. App. 1 Cir. 11/4/05), 927 So.2d 408, 410-11.

ANALYSIS

The trial court did not grant a summary judgment or sustain an exception on the issue of peremption, and the judgment did not resolve the merits of the accountancy malpractice, in whole or in part. Nor did the legislature include the right to immediately appeal an interlocutory judgment denying a motion brought pursuant to the special procedure it created in LSA-R.S. 37:108. Compare LSA-C.C.P. art. 592 A(3)(b) (which allows an immediate appeal from a grant or a denial of a class certification). Thus, we find no basis for appeal presented by the interlocutory judgment before us. See LSA-C.C.P. art. 968; Young, 2004-2305 at pp. 4-5, 927 So.2d at 410-11; Belanger, 2000-0747 at p. 5, 787 So.2d at 563.

For these reasons, we dismiss the appeal at appellant’s cost. However, the appellant, Provost, is allowed fourteen days to file a writ application with this court. Any such application must comply with the Uniform Rules-Courts of Appeal, Rules 4-1 et seq., effective January 1, |42003, and a copy of this opinion must be included in the writ application for compliance with Rule 4-3.

APPEAL DISMISSED.

GUIDRY, J., concurs.

PARRO, J., concurs in the result.

      . A motion for summary judgment is not generally the first pleading found in a record on appeal. However, the legislature created a special procedure for accountancy malpractice cases. Under LSA-R.S. 37:108, a "certified public accountant or firm, against whom a claim has been filed” with a review panel, "may raise any exception or defense available, pursuant to R.S. 9:5604, ... at any time without the need for the completion of the review process by the public accountant review panel,” or the need to file a suit on the merits. See LSA-R.S. 37:105 & 107 (suit filed before waiver or completion of review is premature). A similar procedure is allowed by LSA-R.S. 40:1299.47 B(2)(a) for medical malpractice cases.

      . We note that even if a motion for a partial summary judgment is granted, or an exception is sustained in part, the judgment cannot be considered for immediate appeal in the absence of the requisite certification by the trial court. LSA-C.C.P. art. 1915 B(2).


author: GUIDRY, J.

text:
    In re: Herbert DIXON.
    No. 2006 CA 0950.
    Court of Appeal of Louisiana, First Circuit.
    March 28, 2007.
    John W. Scott, Aexandria, Counsel for Appellant Herbert Dixon.
    R. Gray Sexton, Kathleen M. Alen, Margaret Avarez Sabadie, Baton Rouge, Counsel for Appellee Louisiana Board of Ethics.

      Before: PARRO, GUIDRY, and MeCLENDON, JJ.
   GUIDRY, J.

|?A local school board member appeals a decision of the Louisiana Board of Ethics (Board), wherein he was found to have violated La. R.S. 42:1116 A for allegedly compelling a school principal to take certain personnel actions.

FACTS AND PROCEDURAL HISTORY

By a letter dated February 16, 2004, Herbert Dixon was notified that the “Louisiana Board of Ethics, at its February 12, 2004 meeting, concluded a private investigation” and that following the private investigation, the Board by a majority vote of its membership ordered that a public hearing be conducted for the purpose of exploring the charge that Mr. Dixon had violated La. R.S. 42:1116 A by using his position as a member of the Rapides Parish School Board to gain access to a local middle school and to urge the current and two prior principals to employ teachers who were members of the Louisiana Federation of Teachers. In response to the charge, Mr. Dixon, through counsel, engaged in extensive communication with the Board regarding the charge before filing a “Motion for Verdict in Favor of Herbert Dixon; Motion for Dismissal and/or to Quash Charge.”

A hearing on the combined pre-trial motions was held before the Board on May 13, 2004, and as a result of the hearing, the Board issued a letter dated June 3, 2004, amending the original charge to assert the following:

CHARGES
I.
That Herbert Dixon may have violated Section 1116 A of the Code of Governmental Ethics (LSA~R.S.42:1116 A) in the following manner to wit:
• By using the authority of his position as a member of the Rapides Parish School Board to gain access to Arthur Smith Middle School, which is in Rapides Parish;
• Upon gaining access to the school, Mr. Dixon used the authority of his position as a school board member to urge, convince, compel and/or coerce the current principal at Arthur IsSmith Middle School, Norvella Williams, in the Fall of 2003 to give persons, other than himself, a thing of economic value by hiring several teachers at Arthur Smith Middle School who were members of the Louisiana Federation of Teachers and to re-hiring Kevin Thomas, a custodial employee at the school and member of the Louisiana Federation of Teachers; and,
• At a time when Mr. Dixon was employed by the Louisiana Federation of Teachers.
II.
That Herbert Dixon may have violated Section 1116 A of the Code of Governmental Ethics (LSA~R.S.42:1116 A) in the following manner to wit:
• By using the authority of his position as a member of the Rapides Parish School Board to gain access on more than one occasion to Arthur Smith Middle School, which is in Rap-ides Parish;
• Upon gaining access to the school, Mr. Dixon used the authority of his position as a school board member to urge, convince, compel and/or coerce the then principal at Arthur Smith Middle School, Rick Tison, during the Fall of 2001 to give persons, other than himself, a thing of economic value by hiring teacher(s) at Arthur Smith Middle School who were members(s) of the Louisiana Federation of Teachers; and,
• At a time when Mr. Dixon was employed by the Louisiana Federation of Teachers.

A public hearing on the amended charges issued against Mr. Dixon was held on April 20, 2005, following which the Board by a vote of 7-2 found that the evidence supported a finding that Mr. Dixon had violated La. R.S. 42:1116 A in regal’d to allegations of charge I. On February 9, 2006, the Board issued a written decision in which it made several findings of fact and concluded that “Herbert Dixon violated Section 1116 A of the Code of Governmental Ethics by compelling Ms. Norvella Williams, while she served as the Principal of Arthur Smith Middle School, to recommend the promotion of David Brasher and to discontinue documenting the poor performance of Kevin Thomas, and thereby providing these persons with things of economic value.” The Board then ordered that a $2,000 | ¿penalty be imposed on Mr. Dixon, “all of which is suspended based upon future compliance,” and that the second charge against Mr. Dixon be dismissed. It is from this February 9, 2006 decision that Mr. Dixon now appeals.

STANDARD OF REVIEW

Where an administrative agency or hearing body is the trier of fact, the court will not review evidence before such body except for the purpose of determining if the hearing was conducted in accordance with authority and formalities of statute, whether the fact-findings of the body were supported by substantial evidence, and whether the body’s conclusions from such findings were arbitrary or constituted abuse of the hearing body’s discretion. Wartenburg v. Board of New Orleans-Baton Rouge Steamship Pilot Examiners for Mississippi River, 04-169, p. 4 (La. App. 5th Cir.6/29/04), 879 So.2d 853, 856, writ denied, 04-2329 (La.11/24/04), 888 So.2d 233. Judicial review of the decisions of the Board is conducted in accordance with the Louisiana Administrative Procedure Act (APA), La. R.S. 49:950-972. La. R.S. 42:1143; Schmitt v. Louisiana Board of Ethics, 00-0341, p. 2 (La.App. 1st Cir.3/28/01), 808 So.2d 524, 525. The APA provides that such review is confined to the record as developed in the administrative proceedings. La. R.S. 49:964 F. Moreover, La. R.S. 49:964 G provides:

The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
|b(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

DISCUSSION

One of the issues raised by Mr. Dixon in this appeal is the assertion that the Board violated his due process rights by determining that he violated La. R.S. 42:1116 A based on evidence of conduct that was beyond the scope of the charges. In the amended formal charge issued by the Board against Mr. Dixon, the Board asserted:

Mr. Dixon used the authority of his position as a school board member to urge, convince, compel and/or coerce the current principal at Arthur Smith Middle School, Norvella Williams, in the Fall of 2003 to give persons, other than himself, a thing of economic value by hiring several teachers at Arthur Smith Middle School who were members of the Louisiana Federation of Teachers and to rehiring Kevin Thomas, a custodial employee at the school and member of the Louisiana Federation of Teachers....

The evidence presented at the public hearing before the Board, however, differed from the facts alleged in the charge in several respects. Notably, Principal Williams testified that based on certain conversations she had with Mr. Dixon in the fall of 2002, she felt compelled and coerced by Mr. Dixon to recommend David Brasher, who was then employed as a teacher and physical education coach at Arthur Smith Middle School, for the position of assistant principal at the school. She further testified that during that same time period she felt compelled and coerced by Mr. Dixon to refrain from placing a letter of reprimand in the personnel file of Mr. Thomas, the school custodian. At the commencement of the hearing, ^counsel for Mr. Dixon pointed out to the Board that based on his questioning of Principal Williams prior to the hearing, he believed that her testimony would not support the specific factual allegations of the charge.

The state, by statute, may determine the process by which legal rights are asserted and enforced so long as a party receives due notice and an opportunity to be heard. Lott v. Department of Public Safety and Corrections, Office of Louisiana State Police, 98-1920, p. 7 (La.5/18/99), 734 So.2d 617, 621. Due process in proceedings before the Board requires that a person be informed of the charges against him; be given the opportunity to present evidence; be represented by counsel; be allowed to cross-examine witnesses against him; and be given the right to appeal. U.S. Const, amends. V, XIV; La. Const, art. I, § 2; La. R.S. 42:1141 E; Tebbe v. Commission on Ethics for Public Employees, 526 So.2d 1354, 1361 (La.App. 1st Cir.1988), rev’d in part on other grounds, 540 So.2d 270 (La.1989).

All proceedings before the Board are subject to the provisions of the APA, except for those matters expressly provided for in the Code of Governmental Ethics, La. R.S. 42:1101-1170. La. R.S. 42:1143. The Code of Governmental Ethics expressly provides that a public servant who is subject to a public hearing before the Board is entitled to written notification of the charges against him. La. R.S. 42:1141 E(l). A determination that the accused has violated a provision of law within the jurisdiction of the Board must be based on competent evidence presented at a duly noticed public hearing. La. R.S. 42:1141 E(5), (10), and (ll)(a).

According to LAC 52:1.1008 D, charges may be enlarged to conform with the evidence admitted. However, the Board’s rules also provide that the Board may admit and give probative effect to such evidence only to the extent that the APA does not provide otherwise. LAC 52:1.1008 A. In this case, the APA does provide | otherwise in that it requires that the Board’s findings of fact be based exclusively on the evidence and on matters officially noticed. La. R.S. 49:955 G. Thus, although there was evidence presented at the hearing that supports the Board’s factual findings, because the amended charge in the official notice given to Mr. Dixon referred to conduct that occurred in the “Fall of 2003” and involved the “hiring of teachers” and the “re-hiring of Mr. Thomas,” the Board’s determination should have been limited to the factual findings that fell within the scope of the notice presented in the charge. Thus, to the extent that the Board found that Mr. Dixon violated La. R.S. 42:1116 A based on evidence that was beyond the scope of the official notice given in the charge, we find that its actions were in violation of the due process accorded Mr. Dixon under La. R.S. 49:955 G.

Furthermore, we find that the Board’s violation of La. R.S. 49:955G substantially prejudiced Mr. Dixon in preparing his defense in this matter. Mr. Dixon justifiably relied on statements from the Board, the Board’s counsel, and applicable statutory provisions that the hearing and decision of the Board would be limited to the facts alleged in the charge. In particular, the record reveals that at the May 13, 2004 hearing, counsel for Mr. Dixon sought clarification of the allegations on which the charges were based and also of the manner in which the adjudication would be conducted. One of the Board members, retired Judge John W. Greene, specifically advised counsel for Mr. Dixon that “you have a right to discovery and you have the fall of 2001 and the fall of 2003 in the allegations which put you into a time period and you have the right to discover who the staff is talking about in writing a discovery.” Judge Greene also acknowledged, in response to statements made by the Board’s counsel regarding evidence collected by the Board’s staff, that counsel for the Board could amend the charge to reflect additional evidence the staff may have gathered related to the charge.

| sThroughout the May 13, 2004 hearing, counsel for the Board, as well as members of the Board, stated that the Board’s staff was only obligated to disclose the names of the witnesses that the staff might call to testify at the public hearing and to produce any evidence the staff might introduce at the hearing. It was also reiterated that Mr. Dixon was responsible, through the use of discovery, for finding out what facts the evidence established. Pursuant to this advice, counsel for Mr. Dixon interviewed Principal Williams and resolved that if she testified in conformity with the statements she made during the interview, her testimony would not support the allegations made in the charges. Furthermore, at the commencement of the public hearing, it was evident that such reasoning was integral to Mr. Dixon’s defense strategy-

Based on these circumstances and the requirements of the APA, we believe that Mr. Dixon reasonably relied on the assertions of the Board that its determination would be limited to the specific facts alleged in the charge. We further believe it would be inequitable to hold that Mr. Dixon had to defend against such additional facts simply because the additional evidence was easily discoverable prior to the public hearing. Such reasoning would likewise require that the Board amend the charge to correct errors in the allegations that it also could have easily discovered and corrected prior to the hearing.

Although an administrative agency may, under the authority of statutory provisions and its own rules, prescribe regulations for the presentation and the conduct of hearings not necessarily in strict conformity with the usual rules of evidence and technical rules of procedure, the fundamental principles governing a fair and impartial hearing or trial and due process of law must not be entirely dispensed with, but should be reasonably and substantially adhered to. See Johns v. Jefferson Davis Parish School Board, 154 So.2d 581, 584 (La.App. 3d Cir.1963); King v. Brown, 115 So.2d 405, 411 (La.App. 2d Cir.1959). As the Board [ ^failed to reasonably and substantially adhere to the minimal requirements of due process governing its proceedings as provided by law, then fundamental fairness requires that the decision of the Board be vacated. In so finding, we pretermit discussion of the remaining issues and arguments raised by Mr. Dixon in this appeal.

CONCLUSION

For the foregoing reasons, we vacate the decision of the Louisiana Board of Ethics finding Mr. Dixon in violation of La. R.S. 42:1116 A, and we remand for further proceedings consistent with this opinion. All costs of this appeal in the amount of $541.50 are to be borne by the Louisiana Board of Ethics.

VACATED AND REMANDED.

      . The Board actually considered two formal charges at the public hearing, but following the presentation of evidence on the second charge, the Board granted Mr. Dixon's oral motion to dismiss the second charge based on the evidence presented. Therefore, only the proceedings relative to the first charge are at issue in this appeal.


author: PETTIGREW, J.

text:
    Carl CRAWFORD v. PONTCHARTRAIN MATERIALS.
    No. 2006 CA 1780.
    Court of Appeal of Louisiana, First Circuit.
    March 28, 2007.

      Prescott L. Barfield, Covington, for Plaintiff-Appellee Carl Crawford.
    Travis R. LeBleu, Baton Rouge, for Defendants-Appellants Pontchartrain Materials, Inc. and Louisiana Workers’ Compensation Corporation.
    Before: PETTIGREW, DOWNING, and HUGHES, JJ.
   PETTIGREW, J.

|Jn this workers’ compensation action, the parties dispute whether the claimant’s present back complaints are the result of an employment-related accident. The employer and its insurer dispute that claimant’s subsequent complaints of back pain stem from an accident on the job. The employer and the insurer now appeal from a judgment in favor of claimant awarding indemnity benefits and medical expenses together with penalties and attorney fees. For the reasons that follow, we hereby affirm.

FACTS

Carl Crawford, claimant herein, had been employed since August 13, 2001, as a commercial truck driver making deliveries for Pontchartrain Materials, Inc., a/k/a Pontchartrain Materials Corporation (“Pontchartrain Materials”). After being employed by Pontchartrain Materials for a year, Mr. Crawford sought medical treatment for complaints of numbness in his legs. It was determined that Mr. Crawford suffered from a blocked artery in his right leg. He underwent surgery in which stents were placed in his right leg and left kidney. Mr. Crawford testified that he returned to work several days later and worked the succeeding sixteen or seventeen months without medication or additional complaints.

On July 22, 2003, while in the course and scope of his employment with Pontchartrain Materials, Mr. Crawford was directed to make a delivery of sand to Avondale. While unloading the sand from his truck, Mr. Crawford testified that a pressurized large rubber hose known as a vent line, which was not properly secured, suddenly whipped around and struck Mr. Crawford in the right leg, knocking him to the ground. Mr. Crawford stated that he thereafter got up and relieved the pressure on the vent line by turning off the ignition on his truck.

The following morning Mr. Crawford related details of the incident at Avondale to his fellow workers and showed them bruises that he sustained to his right hip and thigh. Mr. Crawford also notified the production manager at Pontchartrain Materials, Mr. Otha Wood, about the incident. Mr. Wood directed Mr. Crawford to write a detailed statement about what took place at Avondale. In his statement, Mr. Crawford stated that he “[w]as lshit in growing [sic] of my right leg just above the knee. It is just brused [sic].” Mr. Crawford further stated that “[a]fter shuting [sic] down[,] I secure [sic] all lines and then was able to unload.” As Mr. Crawford did not indicate that he had further injuries, Mr. Wood did not consider this incident to be an “accident,” and consequently, did not make out an accident report. Mr. Wood further testified that he asked Mr. Crawford to provide a statement as a means of documenting delays incurred on the job at Avondale.

Approximately one week later, on August 1, 2003, Mr. Crawford underwent a routine physical examination as required periodically by the Louisiana Department of Transportation and Development (“DOTD”) to certify his fitness as a commercial driver. No back complaints, limitation of movement, or restrictions were noted on the Medical Examination Report, and Mr. Crawford was recertified to drive commercially.

Mr. Crawford recalled that he attempted to resume his duties, but approximately one month later, he began having serious problems. According to Mr. Crawford, his legs started to bother him again just as they had prior to his stent surgery. Mr. Crawford further stated that he advised Mr. Wood that his legs were bothering him again and that he would need to return to his doctor. Mr. Crawford missed work periodically throughout the fall of 2003 due to complaints related to his kidney stents and back pain.

In January 2004, Mr. Crawford advised Mr. Wood that he was experiencing back problems that he attributed to the incident at Avondale in July 2003. Pontchartrain Materials took the position that Mr. Crawford did not sustain an “accident” as defined in the Louisiana Workers’ Compensation Act. Pontchartrain Materials further averred that in the event an accident oc-eurred, then, and in that event, Mr. Crawford did not sustain said accident within the course and scope of his employment with Pontchartrain Materials. As a result Louisiana Workers’ Compensation Corporation (“LWCC”), in its capacity as the workers’ compensation insurer for Pontchartrain Materials, denied the claim and, accordingly, did not authorize medical treatment for Mr. Crawford.

14ACTION OF THE TRIAL COURT

This matter proceeded to trial before a workers’ compensation judge on April 26, 2006. At the conclusion of the trial, the workers’ compensation court requested that both parties submit post-trial memo-randa. On May 31, 2006, the workers’ compensation court rendered judgment finding that Mr. Crawford “sustained a compensable work-related injury to his back as a result of a July 22, 2003 accident while working for Pontchartrain Materials.” Accordingly, the workers’ compensation court directed that temporary total disability benefits be awarded to Mr. Crawford in the maximum amount of $416.00 per week, based upon an average weekly wage of $673.84 retroactive to January 1, 2004 and payable until further orders of the court. The workers’ compensation court also cast LWCC for all reasonable and necessary medical expenses related to Mr. Crawford’s back injury, subject to the Workers’ Compensation Fee Schedule and subject to a credit for any amounts paid by Mr. Crawford’s private insurance. The workers’ compensation court further held that Mr. Crawford did not violate the provisions of La. R.S. 23:1208 and assessed a penalty of $2,000.00 and attorney fees in the amount of $10,000.00 against LWCC for its failure to reasonably controvert the claim.

From this judgment, Pontchartrain Materials and LWCC have taken a suspen-sive appeal, and Mr. Crawford has filed an answer to the appeal. On July 20, 2006, Mr. Crawford moved for the expedited preparation of the record and an expedited appeal based upon the recommendation of Mr. Crawford’s cardiologist that he must undergo back surgery. Pontchartrain Materials and LWCC opposed this motion on the grounds that (1) while Mr. Crawford’s cardiologist recommended surgery, he did not opine that a delay of surgery would have any adverse effects; (2) matters concerning Mr. Crawford’s need for back surgery were outside the expertise of his cardiologist; and (3) the workers’ compensation court was divested of jurisdiction by the appeal. In a hearing held on August 3, 2006, the workers’ compensation court denied Mr. Crawford’s request for anJ^expedited appeal. Mr. Crawford sought review of this denial in the appellate court, which ordered that this matter be placed on the next available docket.

ISSUES PRESENTED FOR REVIEW

In connection with their appeal in this matter, Pontchartrain Materials and LWCC have set forth the following issues for consideration by this court:

1. Whether the workers’ compensation court erred in holding that Mr. Crawford had sustained a work-related accident;
2. Whether the workers’ compensation court erred in assessing penalties and attorney fees where the claim was reasonably controverted;
3. Whether the workers’ compensation court erred in holding that Mr. Crawford had not violated La. R.S. 23:1208;
4. Whether the workers’ compensation court erred in holding that Mr. Crawford was entitled to indemnity benefits from January 1, 2004 and continuing; and
5. That the workers’ compensation court did not provide what medical expenses it deemed to be reasonable, necessary and related.

LAW AND ANALYSIS

Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. As an appellate court, we cannot set aside the factual findings of the workers’ compensation judge unless we determine that there is no reasonable factual basis for the findings and the findings are clearly wrong (manifestly erroneous). Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Furthermore, when factual findings are based on the credibility of witnesses, the fact finder’s decision to credit a witness’s testimony must be given “great deference” by the appellate court. Rosell v. ESCO, 549 So.2d 840, 844 (La. 4989). Thus, 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 its own evaluations and inferences are as reasonable. Id.

In order for a claimant to be entitled to recover workers’ compensation benefits, he must prove, by a preponderance of the evidence, that a work-related accident occurred and that an injury was sustained. 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 upon the worker’s version of the incident, and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Jackson v. Savant Insurance Company, 96-1424, p. 3 (La.App. 1 Cir. 5/9/97), 694 So.2d 1178, 1180. See also Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992).

In workers’ compensation cases, a disability is presumed to be the result of the work-related accident if the claimant was in good health before the accident and the symptoms of the disability appear after the accident and continue to manifest themselves. This presumption is available when sufficient medical evidence is introduced to show a reasonable possibility of a causal connection between the disability and the work-related accident or that the nature of the accident raises a natural inference that such a causal connection exists. LeBlanc v. Cajun Painting Inc., 94-1609, p. 10 (La.App. 1 Cir. 4/7/95), 654 So.2d 800, 807, writ denied, 95-1706, 95-1655 (La.10/27/95), 661 So.2d 1349, 1350. Thus, when there is proof of an accident and a following disability, without an intervening cause, it is presumed that the accident caused the disability. Jackson, 96-1424 at 3, 694 So.2d at 1180. Moreover, the fact that a claimant does not realize or diagnose the full extent of his injury immediately after an accident should not bar him from recovery. Middleton v. International Maintenance, 95-0238, pp. 6-7 (La. App. 1 Cir. 10/6/95), 671 So.2d 420, 424, writ denied, 95-2682 (La.1/12/96), 667 So.2d 523.

Thus, in determining whether a worker has shown by a preponderance of the evidence that an injury-causing accident occurred in the course and scope of | employment, the trier of fact is expected to focus on the issue of credibility because, absent contradictory circumstances and evidence, a claimant’s testimony is accorded great weight. Nelson v. Motiva, 04-2436, p. 3 (La.App. 1 Cir. 12/22/05), 928 So.2d 34, 37. The determinations by a workers’ compensation judge as to whether the claimant’s testimony is credible and whether the claimant has discharged his burden of proof are factual determinations and will not be disturbed upon review in the absence of manifest error or unless clearly wrong. Bruno, 593 So.2d at 361.

The manifest error test requires the reviewing court to consider the record as a whole to ascertain whether the trier of fact’s findings constituted manifest error. Since the trier of fact’s findings are accorded great weight on appeal, the Louisiana Supreme Court has set forth a two-part test for use by appellate courts in applying the manifest error standard of review. First, the appellate court must conclude from the record that a reasonable factual basis does not exist for the trier of fact’s findings. Second, the appellate court must determine that the findings were clearly wrong based on the record. Stobart, 617 So.2d at 882.

In its written reasons for judgment rendered on June 8, 2006, the workers’ compensation court addressed fully the issues now raised by Pontchartrain Materials and LWCC in the present appeal:

Looking at the evidence as a whole, the court concludes that Mr. Crawford has met his burden of proving a causal connection between a work-related accident and resulting disability by an overwhelming preponderance of the evidence. While Mr. Crawford may be a poor historian, he was nonetheless a credible witness. No evidence or testimony contradicted the occurrence of the July 22, 2003 incident at Avondale. Additionally, after his first stent surgery in March 2002, Mr. Crawford worked without problems; it was not until shortly after the July 22, 2003 accident that he complained of back problems.
Dr. Finn’s records also corroborate Mr. Crawford’s testimony that while he may not have told Dr. Finn about the July 22, 2003 incident when it first happened, at some point Mr. Crawford did discuss it with him, and Dr. Finn referred to the injury as work-related as early as March 2004.
As to disability, Mr. Crawford testified that he has not worked since leaving Pontchartrain Materials. He also testified that he is considered disabled by Social Security Administration, and no evidence was put forth to contradict his testimony.
IsDr. Finn repeatedly stated that Mr. Crawford’s back injury is work-related and that he needs surgery. Despite Dr. Finn’s reports, LWCC took no further action on the claim after the denial in June 2004. No second opinions were obtained, no doctor’s depositions were taken. Based on this, the court concludes that Mr. Crawford has met his burden of proving by clear and convincing evidence that he in [sic] unable to work, thus entitling him to temporary total disability benefits.
As to average weekly wage and compensation rate, the parties jointly submitted Mr. Crawford’s 2003 work calendar and payroll record, the payroll record only showing gross wages for 2003. However, there is a hand-written notation on the payroll record which says: “Avg hours/week” and underneath “57.84”. The parties stipulated that Mr. Crawford earned $11.65 per hour at the time of the accident. Thus, the court concludes that Mr. Crawford’s average weekly wage is $673.84 ($11.65 X 57.84 hours per week), thus entitling him to the maximum compensation rate of $416.00 per week.
Based on LWCC’s inaction after the June 2004 denial of Mr. Crawford’s claim, the court concludes that LWCC failed to reasonably controvert the claim, thus entitling him to penalties and attorney fees.
The court finds that counsel for Mr. Crawford performed substantial work on his behalf. It was only after counsel for Mr. Crawford filed for and was granted a preliminary default that LWCC answered the claim. Counsel also filed a Motion to Compel Authorization for Medical Treatment, Motion to Compel Discovery, and Motion to Deem Admissions Admitted, which were all scheduled for hearing on July 23, 2004. No appearance was made by Pontchartrain Materials nor by LWCC, thus the court rendered judgment in favor of Mr. Crawford on all the motions, and attorney fees were awarded.
Shortly thereafter, counsel for Mr. Crawford had to file a Motion to Enforce the above-mentioned judgment, and a hearing was scheduled for December 17, 2004. Again, no appearance was made by Pontchartrain Materials nor by LWCC, so the court granted the Motion to Enforce and awarded additional attorney fees.
Over the next year and five months, counsel for Mr. Crawford continued to perform substantial work on the case up to the trial date. Considering the entire record and trial preparation involved, and finding that LWCC failed to reasonably controvert the claim, the court concludes that an attorney fee of $10,000.00 is appropriate. Additionally, Mr. Crawford is entitled to a penalty of $2,000.00.
Finally, LWCC urged in its post-trial brief that Mr. Crawford violated the provisions of La. R.S. 23:1208, based on “repeated assertions of an alleged accident, injury to his back, and continuing disability” (emphasis added) [emphasis in original]. The court concludes that the fraud claim has no merit, given the fact that Mr. Crawford has proven each and every element of his claim.

As this court has previously noted, the determinations by the workers’ compensation court as to whether Mr. Crawford’s testimony is credible and whether Mr. Crawford discharged his burden of proof are factual determinations that will not be | ¡jdisturbed on review in the absence of manifest error. In the case presently before this court, the workers’ compensation court found Mr. Crawford to be a credible witness and concluded that the medical evidence showed a reasonable connection between the work-related accident and Mr. Crawford’s back injury. Based upon a complete review of the record, we decline to say that the workers’ compensation court was clearly wrong in its finding that Mr. Crawford proved, by a preponderance of the evidence, that he injured his back in the July 22, 2003 accident at Avondale and was entitled to the damages, penalties and attorney fees awarded.

CONCLUSION

For the above and foregoing reasons, the judgment of the workers’ compensation court is affirmed in all respects. All costs associated with this appeal are assessed against defendant-appellants, Pontchartrain Materials, Inc. and Louisiana Workers’ Compensation Corporation.

AFFIRMED.

      . Carl Crawford v. Pontchartrain Materials and Louisiana Workers’ Compensation Corporation, 06-1780 (La.App. 1 Cir. 10/2/06).