author: WILLIAMS, J.

text:
    Richard RYAN, Plaintiff-Appellant v. BLOUNT BROTHERS CONSTRUCTION, INC., Defendant-Appellant Louisiana Health Service & Indemnity Company, Intervenor-Appellee Richard Ryan, Plaintiff-Appellant v. Ryan Construction Company, Inc., Defendant-Appellant.
    No. 40,845-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    April 19, 2006.

      Aubrey R. Snell, Randall R. Robinson, Bossier City, for Appellant, Richard Ryan and Ryan Construction Company, Inc.
    Michael A. Stroud, for Appellant, Blount Brothers Construction, Inc. and LUBA.
    Robert A. Dunkelman, Shreveport, for Appellant, Employers Self Insurers Fund.
    Charles A. O’Brien, III, Baton Rouge, for Appellee, Louisiana Health Service <& Indemnity Company.
    Before BROWN, WILLIAMS and PEATROSS, JJ.
   WILLIAMS, J.

| Claimant, Richard Ryan, filed separate workers’ compensation claims against his direct employer, Ryan Construction Company, Inc. (“Ryan Construction”) and his statutory employer, Blount Brothers Construction, Inc. (“Blount Brothers”), alleging he sustained an injury while in the course and scope of his employment. Following a hearing, the workers’ compensation judge (“WCJ”) rendered judgment in favor of claimant and against Ryan Construction and its insurer, awarding, inter alia, permanent and total disability benefits from the date of injury and all medical expenses associated with the injury. Blount Brothers’ insurer was assessed penalties and attorney fees. All parties have appealed. For the following reasons, we affirm in part, and reverse in part.

FACTS

In July 2002, Blount Brothers was awarded a contract by the city of Shreveport to construct a retaining wall. Blount Brothers subcontracted with Ryan Construction to perform the concrete work on the project. Claimant was an owner/employee of Ryan Construction. On February 13, 2003, while operating a track hoe at the job site, claimant was accidentally shot by a child who was playing with a gun in a nearby neighborhood. Claimant suffered a spinal cord injury as a result of the shooting.

The parties do not dispute that claimant was injured while in the course and scope of his employment. However, a dispute arose with regard to which employer— Blount Brothers, the statutory employer, or Ryan Construction, the direct employer — was responsible for paying workers’ compensation benefits. Both parties refused to pay. At the time of the | incident, Ryan Construction was self-insured for workers’ compensation liability through Employers’ Self Insurers Fund (“ESIF”), and Blount Brothers was self-insured through Louisiana United Businesses Association Self Insurers Fund (“LUBA”).

On April 13, 2003, claimant filed separate disputed claims for workers’ compensation benefits against Blount Brothers and Ryan Construction. Both ESIF and LUBA disputed coverage. ESIF claimed that claimant was not a covered employee under the policy issued to Ryan Construction. LUBA disputed coverage claiming that claimant was a covered employee under ESIF’s policy; therefore, ESIF was responsible for paying benefits. LUBA also filed a cross-claim and third party demand, contending that it and Blount Brothers were entitled to seek indemnity for any workers’ compensation paid should they be found liable.

As a result of the insurers’ refusal to pay medical benefits, the medical expenses incurred after the accident were paid by Louisiana Health Service & Indemnity Company d/b/a Blue Cross and Blue Shield of Louisiana (“Blue Cross”) through a group health insurance policy provided by Caddo Parish School Board, which employed claimant’s wife. Blue Cross ultimately filed a petition of intervention seeking reimbursement for the amount it had paid for claimant’s medical expenses.

Both LUBA and ESIF filed cross motions for summary judgment on the issue of coverage. In addition to denying that it was claimant’s statutory employer, LUBA contended that it was not liable to claimant because | ^claimant had workers’ compensation insurance coverage through ESIF at the time of accident. In its motion for summary judgment, ESIF argued that although Ryan Construction was covered under its policy, claimant was not covered individually.

The WCJ granted summary judgment in favor of LUBA in part, finding that ESIF provided coverage for claimant’s workers’ compensation claim. The judge denied summary judgment with regard to LUBA’s potential liability for statutory penalties and attorney fees. ESIF’s motion for summary judgment was denied in its entirety.

The matter proceeded to trial. The parties submitted numerous stipulations, including: claimant’s average weekly wages were $350; Blue Cross paid $188,307.18 in medical expenses; and claimant’s wife paid 25% of the premium for the Blue Cross policy through her employment with the Caddo Parish School Board.

The evidence submitted during the trial reveals that claimant underwent seven operations following the accident, and he was hospitalized at Louisiana State University Medical Center (“LSUMC”) for three months. Following his discharge from LSUMC, he received physical therapy at Cornerstone Hospital. While at Cornerstone Hospital, claimant developed an infection and was again hospitalized at LSUMC. During the course of his treatment at LSUMC, claimant was diagnosed with a heart condition, with a possibility of future cardiac surgery.

| ¿Claimant’s treating physician opined that claimant is unable to work and will be unable “to seek any employment that requires normal hours, standing, walking or other activities involving the lower extremities.” Claimant testified that, primarily, he remains confined to a wheelchair. However, he is able to drive a specially modified truck, can walk with the aid of braces and crutches and can shop in stores in a motorized cart. His home has been modified to make it handicap accessible.

Following the trial, the WCJ found in favor of claimant and Blue Cross. The WCJ ordered as follows: (1) ESIF shall pay to claimant permanent and total disability benefits in the amount of $233.33 per week, retroactive to the date of the injury; (2) ESIF shall pay all medical expenses associated with the injury, including claimant’s out-of-pocket expenses in the amount of $11,415.27 and medical mileage expenses in the amount of $975; (3) ESIF shall provide medical treatment with claimant’s choice of physicians; (4) ESIF shall reimburse Blue Cross 25% of the $188,307.18 it paid for claimant’s medical expenses; (5) LUBA shall pay penalties to claimant in the amount of $4,000 ($2,000 for the denial of medical treatment and $2,000 for the denial of indemnity benefits) and attorney fees in the amount of $21,210.47. All parties have appealed the judgment.

DISCUSSION

Subject Matter Jurisdiction

For the first time in this court, ESIF argues that the Office of Workers’ Compensation (“OWC”) lacked subject matter jurisdiction to decide the issue of whether its insurance policy provided coverage for | sdaimant individually. According to ESIF, the insurance coverage issue did not “arise out of’ but merely “relates to” the workers’ compensation laws.

LSA-R.S. 23:1310.3(E) provides, in pertinent part:

[T]he workers’ compensation judge shall be vested with' original, exclusive jurisdiction over all claims or disputes arising out of this Chapter, including, but not limited to, workers’ compensation insurance coverage disputes....

If an issue arises out of the Workers’ Compensation Act, jurisdiction is vested in the OWC; however, if it merely relates to the compensation claim, the OWC does not have subject matter jurisdiction. Weatherton v. Isle of Capri Casino, 36,677, 36,682 (La.App. 2d Cir.12/11/02), 833 So.2d 1058, writ denied, 2003-0365 (La.4/21/03), 841 So.2d 802, reconsideration denied, (La.6/6/03), 845 So.2d 1078, (La.9/5/03), 852 So.2d 1038; Williams v. Midwest Employers Cas.Co., 28,118 (La.App. 2d Cir.2/28/96), 669 So.2d 616, writ denied, 96-0820 (La.5/17/96), 673 So.2d 610.

The starting point for the interpretation of any statute is the language of the statute itself. Richard v. Hall, 2003-1488 (La.4/23/04), 874 So.2d 131; SWAT 24 Shreveport Bossier, Inc. v. Bond, 2000-1695 (La.6/29/01), 808 So.2d 294; Cat’s Meow, Inc. v. City of New Orleans, 98-0601 (La.10/20/98), 720 So.2d 1186. When a statute is clear and unambiguous and its application does not lead to absurd consequences, the statute is applied 1 (¡as written and no further interpretation may be made in search of legislative intent. See LSA-C.C. art. 9; LSA-R.S. 1:4.

In this case, LSA-R.S. 23:1310.3 is clear and unambiguous. A plain reading of the text of the statute provides that the WCJ shall have subject matter jurisdiction over all claims arising out of the Workers’ Compensation Act, including workers’ compensation insurance disputes.

To support its contention that workers’ compensation insurance coverage disputes do not “arise out of’ the Workers’ Compensation Act, ESIF relies on this court’s ruling in Williams, supra. There, the claimant had been awarded workers’ compensation benefits and sought to enforce that judgment against the insurer which had issued an excess policy to his self-insured employer. The coverage issues involved included whether the employer’s failure to become a qualified self-insurer rendered the excess insurance policy invalid; whether the employer’s failure to become a qualified self-insurer precluded the classification of the policy as one of indemnity; and whether the excess insurance policy “drops down” to cover the claimant’s workers’ compensation claim. This court found that those issues did not “arise out of,” but merely “related to” the Workers’ Compensation Act and ultimately concluded that the WCJ did not have subject matter jurisdiction over the matter.

First, we note that Williams is distinguishable from the instant case. In Williams, all of the disputes with regard to the injury and benefits had been resolved, and a default judgment had been entered against the claimant’s employer, who was insolvent. Subsequently, the claimant |7amended his petition to add his employer’s excess insurer, seeking payment of the default judgment. As this court noted, all of the coverage issues “necessarily ha[d] to be determined by an interpretation of the Midwest excess insurance policy and its terms and provisions.” Williams, 669 So.2d at 619.

In the instant case, claimant sustained an injury during the course and scope of his employment and filed a disputed claim for workers’ compensation benefits. The only issue in dispute with regard to the ESIF policy involved coverage, i.e., whether coverage under the workers’ compensation policy issued by ESIF to Ryan Construction was subsequently extended to include claimant individually. No interpretation of the language of the policy is required which might indicate that the OWC is not the proper tribunal to determine the coverage issue. Thus, we find that the issue involved herein arises out of the workers’ compensation laws, and the OWC had subject matter jurisdiction over that issue pursuant to the plain language of LSA-R.S. 23:1310.3. Thus, we find ESIF’s contention is without merit.

ESIF’s Liability

ESIF further contends claimant failed to meet his burden of proving that he was covered individually under the workers’ compensation insurance policy issued to Ryan Construction. The initial self-insurance contract between Ryan Construction and ESIF indicates that claimant and his wife are owners of the company, and claimant elected not to be covered under the terms of the policy. In 2002, claimant was awarded the subcontract with the City of Shreveport which required him to be insured | ¡^individually under the policy issued to Ryan Construction. Claimant instructed his insurance broker, Greg Davis, that claimant needed to obtain individual coverage. According to Davis, obtaining individual coverage only required increasing the premium to include the payroll of claimant and his wife and sending a note to ESIF indicating that claimant wanted individual coverage. Claimant increased his premium to ESIF to receive individual coverage.

In its argument with regard to the coverage issue, ESIF relies primarily upon this court’s decision in American Zurich Ins. Co. v. Johnson, 37,567 (La.App. 2d Cir.7/30/03), 850 So.2d 1112. In that case, Lincoln Builders, a general contractor, subcontracted with Johnson Drywall. Johnson Drywall paid a premium to an independent insurance agent, James Fort-ner, and obtained a certifícate of insurance. The certificate, which was issued in error and under the name of another company, was provided to Lincoln Builders to show that Johnson Drywall had workers’ compensation insurance through Fidelity Security Insurance Company (“Fidelity”). Subsequently, one of Johnson Drywall’s employees was injured on the job. Lincoln Builders, as the statutory employer, paid benefits through its workers’ compensation insurer, American Zurich Insurance Company and then filed suit seeking reimbursement of the benefits paid, naming as defendants Johnson Drywall, Fidelity and Fortner. Fidelity moved for summary judgment, contending it was not liable because the insurance policy was never in force. The court granted summary judgment in favor of Fidelity, finding Fortner did not have the apparent authority to bind Fidelity.

1 sOur review of Johnson shows that it is not dispositive of the coverage issue presented herein. In Johnson, all of the parties conceded that Fidelity had never issued any insurance coverage to Johnson Drywall. Fortner admitted that the certificate of insurance had been issued in error and that he was responsible for Lincoln Builders’ loss. In this case, Davis had transacted business with ESIF for several years and had often issued certificates of insurance on its behalf, with ESIF’s knowledge.

Our review of the relevant jurisprudence reveals that this case is more analogous to this court’s ruling in Mathews v. Marquette Cas. Co., 152 So.2d 577 (La.App. 2d Cir.1963), writ denied, 244 La. 662, 153 So.2d 880 (1963). In Mathews, a policy had been issued by Marquette Casualty Company (“Marquette Casualty”) on a vehicle owned by Dorothy McIntyre. The policy contained a provision for coverage of after-acquired automobiles upon proper notice to Marquette. The policy had been solicited by Charles Frazier and issued through the Gibson Insurance Agency Inc. (“Gibson Insurance”). Subsequently, McIntyre purchased an additional vehicle and, according to the provisions of her policy, she went to Frazier and requested that the new vehicle be covered under the Marquette Casualty policy. McIntyre paid Frazier the additional premium. Thereafter, she was involved in an accident while driving the new vehicle, and Marquette Casualty denied coverage. Both Marquette Casualty and Gibson Insurance contended McIntyre failed to give proper notice to the insurers as required by the policy to obtain coverage for the new vehicle.

l.mThis court held that Frazier was authorized as a representative of Gibson Insurance to bind it and Marquette Casualty, and the vehicle involved in the collision was covered by the Marquette Casualty policy. We stated:

The record reveals Frazier was actively engaged in the solicitation of insurance and that all insurance solicited, other than life, was placed with the Gibson agency. Frazier had no discretion in the ultimate placement of the insurance with a particular company, but after the solicitation, the Gibson agency dealt directly with the policyholders, and Frazier was allowed or directed to assist in the collection of premiums and handling of certain policy details. Frazier, although qualified as an insurance agent, was not licensed as a solicitor for the Gibson agency. We are of the opinion that he was acting with authority from that agency in his dealings with Miss McIntyre concerning extended coverage of an insurance agreement already in existence between the insured and [Marquette Casualty].
5h * *
Therefore, notice of the acquisition of the Mercury given by Miss McIntyre to Frazier was notice to [Gibson Insurance] and its principal, [Marquette Casualty].

Mathews, 152 So.2d at 584.

In this case, it is undisputed that ESIF had issued a workers’ compensation policy to Ryan Construction. The policy had been procured by Davis. Although claimant had been excluded from coverage under the original policy, he later contacted Davis to obtain individual coverage under that same policy. Art Owens, ESIF’s account manager, testified that as long |nas the policy was in force and paid up to date, claimant had the option of being included under the policy at any time. Owens also testified that at the time claimant requested individual coverage, ESIF had just been taken over by another company, and “there probably weren’t any underwriting requirements in place.” ESIF does not dispute that it received premiums from claimant for the individual coverage. There is also no dispute that Davis was in the business of procuring insurance coverage on behalf of individuals, often through ESIF. Although the polices were actually issued by ESIF, Davis testified unequivocally that he had often issued certificates of insurance to his customers on behalf of ESIF with ESIF’s knowledge and authorization. Thus, we conclude that Davis was acting with authority from ESIF in his dealings with claimant concerning extended coverage of an insurance agreement already in existence between claimant and ESIF.

Moreover, this court also stated in Mathews:

Marquette Casualty Insurance Company ... has failed to establish that [Frazier’s failure to report the additional risk of insuring McIntyre’s new vehicle] caused it damage. Undoubtedly, if such notice had been timely given to the insurer, it would have sustained the same loss as if no actual notice was given.

Mathews, 152 So.2d at 585.

In this case, it is apparent from the testimony that Davis’ failure to provide ESIF with notice of the additional risk is of no moment. Davis and ESIF’s employees admitted that, because the premium was being paid, ESIF would have provided individual coverage to plaintiff.

In denying ESIF’s motion for summary judgment on the issue of coverage, the WCJ stated:

|1¾1 would note that ESIF knew of the policy that had been issued to the City of Shreveport because they issued the first policy all be it [sic] that policy did not include [claimant] as the owner. ESIF’s employees, in their depositions, said that there would have been no problem in covering [claimant], that all it would have taken would have been a note to them to that effect.
Mr-. Davis, as the agent or broker, attempted to contact ESIF on, according to his testimony, several occasions to inform them that they needed to reissue ... the policy, with [claimant] included. For whatever reason, he was unable to contact them. However, Mr. Davis had the authority to issue a policy, as he had done so in the past, and he did issue a policy for ESIF to the City of Shreveport that provided coverage for [claimant].
[Claimant] and the City of Shreveport thought [claimant] was covered by that policy. [Claimant’s] company paid premiums on him. All their actions were in reliance upon that policy that was issued by Mr. Davis.
There were numerous problems in this matter. It appears that ESIF was in a change-over period at this time from my reading of the various depositions, and the ball was dropped. However, they would have insured [claimant] automatically, without any investigation because he was — that was already part of their exposure.

For the reasons set forth above, we agree with the WCJ’s reasons. Accordingly, we affirm the WCJ’s determination that claimant was covered individually under the ESIF workers’ compensation policy. Thus, we affirm the WCJ’s determination that ESIF is liable to claimant for the payment of permanent and total disability benefits in the amount of $233.33 per week, retroactive to the date of injury. We further affirm the WCJ’s ruling with regard to the payment of claimant’s medical expenses, claimant’s choice of physicians, the out-of-pocket expenses and medical mileage expenses.

LUBA’s Liability

Claimant contends Blount Brothers and LUBA (collectively referred [13to as “LUBA”) should also be responsible for paying compensation benefits, pursuant to LSA-R.S. 23:1061. Conversely, LUBA argues ESIF is responsible for paying benefits to claimant, and claimant is not entitled to double recovery of workers’ compensation benefits.

LSA-R.S. 23:1061(A) provides in pertinent part:

[T]he principal, as a statutory employer, shall be granted the exclusive remedy protections of R.S. 23:1032 and shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed.

(Emphasis added).

A principal contractor, when sued by an employee of a subcontractor, may call that subcontractor as a co-defendant, and the principal contractor shall be entitled to indemnity from his subcontractor for compensation payments paid by the principal contractor on account of an accidental injury to the employee of the subcontractor. LSA-R.S. 23:1063(A). A principal employer is primarily liable for compensation, but shall be entitled to indemnification from the immediate employer. Therefore, if the immediate employer does not pay workers’ compensation to an injured worker, the principal employer is obligated to provide the benefits as a matter of law. Keller v. Evans Cooperage, Inc., 94-006 (La.App. 5th Cir. 5/31/94), 641 So.2d 552.

|uIn this case, it is undisputed that Blount Brothers was the principal employer. The WCJ stated:

... LUBA had a valid policy of insurance for the injury all along. Had LUBA paid benefits at the outset until ESIF’s coverage issue was resolved, they would have been able to seek indemnification from ESIF if it was ultimately determined that ESIF had primary coverage. Had they paid benefits at the outset and it was ultimately determined that ESIF did not provide coverage to [claimant], they would have been responsible for the benefits anyway.

We agree. Thus, in keeping with the aforementioned legal precepts, it is clear that LUBA was primarily liable for the payment of workers’ compensation benefits, as the immediate employer failed to pay compensation. Pursuant to LSA-R.S. 23.T061 and 1063(A), LUBA’s only recourse was to pay benefits to claimant and seek indemnification from ESIF. Although we agree with LUBA’s contention that claimant is not entitled to double recovery of benefits, for the reasons that follow, we find that LUBA and ESIF are liable, in solido, to claimant for workers’ compensation benefits.

Solidary Liability

When an employee is entitled to compensation, and under LSA-R.S. 23:1061 or LSA-R.S. 23:1063, has sued the principal or the principal contractor together with the contractor or subcontractor, the liability of such defendants is solidary. Bowens v. General Motors Corp., 608 So.2d 999 (La.1992). In Bowens, the court stated:

The purpose of these statutes is to expand financial responsibility and to prevent the evasion of the workman’s compensation law by the principal’s or the principal contractor’s interposing between himself and hsthe employee an impecunious contractor or subcontractor. Under these statutes the claimant is entitled to proceed against the principal (or principal contractor) or the contractor (or subcontractor) or both as he chooses. The indemnification clauses, however, have the effect of finally imposing the loss of the principal or principal contractor upon the claimant’s immediate employer.

Id. at 1003.

Therefore, for the reasons set forth in Bowens, and as stated above, we conclude that LUBA and ESIF are solidarity liable for workers’ compensation benefits, with LUBA retaining its right to seek indemnification from ESIF for any amounts it may pay.

Lump Sum Payment

Claimant further assigns as error the WCJ’s denial of his claim for a lump sum payment pursuant to LSA-R.S. 23:1221(4)(s), which provides, in pertinent part:

Permanent partial disability. In the following cases, compensation shall be solely for anatomical loss of use or amputation and shall be as follows:
(s)(i) In addition to any other benefits to which an injured employee may be entitled under this Chapter, any employee suffering an injury as a result of an accident arising out of and in the course and scope of his employment shall be entitled to a sum of thirty thousand dollars, payable within one year after the date of the injury.
(iii) Only the following injuries shall be considered injuries for which benefits pursuant to this Subparagraph may be claimed:
(aa) Paraplegia or quadriplegia or the total anatomical | mloss of both hands, or both arms, or both feet, or both legs, or both eyes, or one hand and one foot, or any of two thereof; however, functional loss or loss of use shall not constitute anatomical loss.

In a claim for benefits pursuant to LSA-R.S. 23:1221(4)(s), it must be established by clear and convincing evidence that the employee suffers from a qualifying injury as defined in Subparagraph (s)(iii). See LSA-R.S. 23:1221(4)(s)(ii); Bridges v. Brunt Const., Inc., 2003-1383 (La.App. 1 Cir. 12/30/04), 898 So.2d 402. Although the statute does not defíne the term “paraplegia,” it is well-established that the words of a law must be given their general prevailing meaning. LSA-C.C. art. 11. Words must be read in context and must be construed “according to the common and approved usage of the language.” LSA-R.S. 1:3. Dictionaries are a valuable source for determining the “common and approved usage” of words. Gregor v. Argenot Great Cent. Ins. Co., 2002-1138 (La.5/20/03), 851 So.2d 959; Louisiana Horsemen’s Benevolent and Protective Assoc. 1993, Inc. v. Fair Grounds Corp., 02-1928 (La.4/9/03), 845 So.2d 1039.

In Taber’s Cyclopedic Medical DictionaRY, 1230 (15th ed.1995), the term “paraplegia” is defined as “Paralysis of the lower portion of the body and of both legs.” WebsteR’s II New College Dictionary, 797 (1995) defines “paraplegia” as “Complete paralysis of the lower half of the body including both legs that is caused by injury to or disease of the spinal cord.”

In the present case, the record establishes that claimant did not suffer “paralysis of the lower portion of [his] body and of both legs” as a result of |17the accident in question. Dr. Lou Smith, claimant’s primary physician immediately following the accident, described claimant as an “incomplete paraplegic,” indicating that while his left leg is paralyzed, claimant has regained some function in his right leg. Dr. Jorge Martinez, a neurosurgeon, testified that he does not consider claimant to be a paraplegic. He stated that his June 28, 2004 examination of claimant reveals that his right leg is fully functional. He described claimant’s condition as “monoparesis” (weakness in one leg). The record indicates that at all times since the accident, claimant has experienced some sensation in both legs and was able to move at least his toes. Although claimant continues to have some difficulty walking, he is able to do so with the aid of a walker. Thus, it is clear that he does not meet the definition of a paraplegic in that he is not in a persistent state of paraplegia, as he has the full use of one of his legs. Accordingly, we conclude that claimant was not eligible to receive the lump sum payment under LSA-R.S. 23:1221(4)(s), and the WCJ properly rejected that claim.

Penalties

Claimant also contends that under the Workers’ Compensation Act, the WCJ erred in failing to award separate penalties for each violation committed by defendants. The WCJ assessed $2,000 in penalties against LUBA for the denial of medical treatment and $2,000 for the denial of indemnity benefits. Claimant urges that he is entitled to receive separate penalties for each of the following: failure to timely pay each weekly benefit; failure to pay the $30,000 lump sum benefit; failure to pay each 1 ismedical bill and expense; failure to provide timely mileage reimbursement; failure to reimburse out of pocket medical expenses; failure to pay and/or reimburse all prescriptions related to the accident; failure to provide claimant with his choice of physicians; and failure to provide any meaningful vocational rehabilitation.

LSA-R.S. 23:1201(F) provides, in pertinent part:

F. Failure to provide payment in accordance with this Section shall result in the assessment of a penalty in an amount equal to twelve percent of any unpaid compensation or medical benefits or fifty dollars per calendar day, whichever is greater, for each day in which any and all compensation or 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. Penalties shall be assessed in the following manner:
(1) Such penalty and attorney fees shall be assessed against either the employer or the insurer, depending upon fault. No workers’ compensation insurance policy shall provide that these sums shall be paid by the insurer if the workers’ compensation judge determines that the penalty and attorney fees are to be paid by the employer rather than the insurer.
(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.

Awards of penalties in workers’ compensation cases are essentially penal in nature, being imposed to discourage indifference and the undesirable conduct of employers and insurers. Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41; Sharbono v. Steve Lang & Son Loggers, 97-0110 (La.7/1/97), 696 So.2d 1382. Although it is well accepted that the Workers’ Compensation Act is liberally construed with |1flregard to indemnity benefits, it is likewise well established that penal statutes are strictly construed. Williams, 737 So.2d at 46; see also International Harvester Credit v. Seale, 518 So.2d 1039, 1041 (La.1988).

It is well-settled that a dispute between a statutory employer and a direct employer with regard to which one owes compensation benefits is not a justifiable basis for withholding these benefits from an injured worker. Bowens, supra; Demery v. Dupree, 511 So.2d 1268 (La.App. 2d Cir.1987), writ denied, 514 So.2d 456 (La.1987); Guillot v. Guillot, 445 So.2d 1270 (La.App. 3d Cir.1984); Fontenot v. Town of Kinder, 377 So.2d 554 (La.App. 3d Cir.1979), writ denied, 379 So.2d 1102 (La.1980).

In this case, the WCJ ruled that LUBA was liable for penalties and attorney fees because it knew that it was responsible for paying benefits, yet it “chose to do nothing.” We conclude that LUBA’s refusal to pay benefits on the ground that it believed ESIF should pay first was not a reasonable ground for LUBA’s failure to pay benefits. Therefore, we affirm the WCJ’s ruling that LUBA is liable to claimant for penalties and attorney fees because its refusal to pay was not justifiable.

The WCJ did not hold ESIF liable for penalties and attorney fees, noting, “ESIF strenuously disputed coverage at the outset of the claim....” Thus, we must determine whether ESIF’s refusal to pay benefits was reasonable under the facts of this case.

In Brown v. Texas-LA Cartage Inc., 98-1063 (La.12/1/98), 721 So.2d 885, the court explained the “reasonably controverted” standard as follows:

... Unreasonably controverting a claim ... requires action [¡>nof a less egregious nature than that required for arbitrary and capricious behavior. Arbitrary and capricious behavior consists of willful and unreasoning action, without consideration and regard for facts and circumstances presented, or of seemingly unfounded motivation. Stated another way, such behavior arises from unrestrained exercise of the will or personal preference or lacks a predictable pattern.
The phrase “reasonably controverted,” on the other hand, mandates a different standard. In general, one can surmise from the plain meaning of the. words making up the phrase “reasonably controvert” that in order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base his denial of benefits. Thus, to determine whether the claimant’s right has been reasonably controverted ... a court must ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented- by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed.

Brown, 721 So.2d at 890 (internal citations and footnote omitted).

In this case, we find that ESIF did not possess any “information to reasonably counter” claimant’s claim that he was covered under the policy. Although claimant had been originally excluded under the policy which covered Ryan Construction, the evidence was sufficient to show that claimant thereafter took the necessary steps to obtain individual coverage. A simple investigation into the claim would have revealed that claimant had provided notice to Davis that he intended to obtain individual coverage, and he had increased his premiums to do so. Davis, in turn, attempted to notify ESIF of the change in coverage. However, presumably due to the change in ESIF’s ownership and/or management, he was unable to do so. Thus, Davis provided claimant with a certificate of insurance as he had been authorized [21to do in the past. ESIF knew that its policy afforded coverage to Ryan Construction and that Davis had issued a certificate, indicating that coverage had been extended to claimant individually. If ESIF believed that Davis had issued the certificate in error, it could have paid benefits to claimant and commenced proceedings against Davis pursuant to LSA-R.S. 23:1101(B). Even after the WCJ denied ESIF’s motion for summary judgment on the issue of coverage, ESIF has remained steadfast in its refusal to pay benefits. For these reasons, we conclude that ESIF had no valid basis for its denial of workers’ compensation benefits to claimant, and we reverse the WCJ’s ruling that ESIF is not liable to claimant for penalties and attorney fees.

Having determined that both LUBA and ESIF are both liable to claimant for penalties and attorney fees, we now turn to the issue of whether claimant is entitled to multiple penalties. In Fontenot v. Reddell Vidrine Water Dist., 2002-0439 (La.1/14/03), 836 So.2d 14, the Louisiana Supreme Court addressed the issue of multiple penalties and concluded that LSA-R.S. 23:1201(F) provides for multiple penalties for multiple violations regarding the payment of compensation and medical benefits claims. The court stated:

| ¡^Viewing the penalty issue contextually, we observe that LA.REV.STAT. ANN. §§ 23:12Ü1(B), (G), (D), and (E) impose a twofold continuing obligation on the employer/insurer: (1) to pay all compensation and medical benefits due, i.e., payment of the correct amount owed, and (2) to pay. for compensation and medical benefits within the time limit specified. It is further evident from the statute that should the employer/insurer not abide by those dictates, the Legislature has made available to the employee the provisions of LA.REV.STAT. ANN. § 23:1201(F) which provide for the assessment of a penalty as well as an award for reasonable attorneys’ fees as a means to encourage compliance with the statutory obligations. As exemplified in the two consolidated cases before us, it is readily apparent that an employer/insurer may make multiple errors in this regard and may have two or more claims under LA.REV.STAT. ANN. § 23:1201(F).

Fontenot, 836 So.2d at 24 (fn. omitted). The court continued:

In those instances where a claim is either not reasonably controverted or if nonpayment results from conditions under the control of the employer or insurer, this proviso for multiple penalties will address the recalcitrant employer or insurer and will encourage employers and their workers’ compensation insurers to honor their continuing obligation to the injured worker. “[T]o conclude otherwise would dilute the deterrent effect of these statutory provisions, which are not intended to make the worker ‘whole’ but rather to discourage specific conduct on the part of the employer.” Simply stated; without such an understanding of the statute, there would be nothing to leverage the obstinate employer or its insurer to comply with their statutory obligation to the injured worker.

Fontenot, 836 So.2d at 25 (internal citations omitted).

The instant matter boils down to two insurers fighting' between themselves resulting in the claimant not receiving benefits from either. Claimant, who was injured more than three years ago, has not received workers’ compensation benefits from either employer, when either could | pshave paid and sought indemnity from the other. In their refusal to pay benefits, both ESIF and LUBA have violated the purpose of the Workers’ Compensation Act. Therefore, it is clear, pursuant to Fontenot, both insurers are liable for separate penalties for the denial of medical benefits and the denial of indemnity benefits.

In addition, we must point out that the Workers’ Compensation Act provides for additional benefits, all of which were denied in this case. LSA-R.S. 23:1203(A) provides that the employer of an injured worker “shall furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any non-medical treatment recognized by the laws of this state as legal....” Pursuant to LSA-R.S. 23:1203(D), employers are “liable for the actual expenses reasonably and necessarily incurred by the employee for mileage reasonably and necessarily traveled ... in order to obtain medical services, medicines, ... and for the vocational rehabilitation-related mileage traveled. ...” LSA-R.S. 23:1121 entitles an injured worker to be examined and treated by his choice of physicians. Additionally, pursuant to LSA-R.S. 23:1226, any employee who suffers :an .injury covered under the Workers’ Compensation Act which precludes the employee from earning wages equal to wages earned prior to the injury is entitled to “prompt rehabilitation services” by a licensed professional vocational rehabilitation counselor.

Because claimant herein has received none of the benefits to which he is entitled under the Workers’ Compensation Act, in keeping with Fontenot, supra, we find that ESIF and LUBA are solidarily liable to claimant for |Meach violation of the Act. Thus, we assess penalties in the amount of $2,000 for each of the following violations of the Workers’ Compensation Act: (1) the denial of medical benefits, in violation of LSA-R.S. 23:1203(A); (2) the denial of indemnity benefits, in violation of LSA-R.S. 23:1221; (3) the denial of mileage reimbursement, in violation of LSA-R.S. 23:1203(D); (4) the denial of the reimbursement of out-of-pocket medical expenses, in violation of LSA-R.S. 23:1203(A); (5) the denial of the payment of prescription benefits, in violation of LSA-R.S. 23:1203(A); (6) the denial of claimant’s choice of physicians, in violation of LSA-R.S. 23:1121; (7) the denial of vocational rehabilitation, in violation of LSA-R.S. 23:1226. Accordingly, we conclude that ESIF and LUBA are solidarily liable to claimant in the total amount of $14,000 in penalties.

Attorney Fees

Under LSA-R.S. 23:1201(F), an injured worker is entitled to reasonable attorney fees for each disputed claim. The award of attorney fees must be reasonable based upon the degree of skill and work involved in the case, the number of court appearances, the deposition, the office work and the time spent in court. Frazier v. Conagra, Inc., 552 So.2d 536 (La.App. 2d Cir.1989), writ denied, 559 So.2d 124 (La.1990).

In this case, the WCJ assessed a total of $21,210.47 in attorney fees. Claimant contends that ESIF and LUBA should be equally responsible for the payment of attorney fees. We agree. We conclude that ESIF and LUBA are liable, in solido, for attorney fees in the amount of $21,210.47.

Claimant also urges that the award of attorney fees should be | ¡^increased due to additional attorney fees incurred in defending this appeal. See Moore v. Conagra Poultry Co., 39,283 (La.App. 2d Cir.1/26/05), 893 So.2d 137; Smith v. Tudor Const., 25,783 (La.App. 2d Cir.05/04/94), 637 So.2d 666. After reviewing of the additional work necessitated by defending this appeal, we conclude that an award of $3,000 in attorney fees is warranted.

Blue Cross

The WCJ ordered ESIF to reimburse Blue Cross $188,307.18, subject to a 75% reduction based on the amount of the premium funded by Mrs. Ryan’s employer. Blue Cross contends that the WCJ erred as a matter of law in failing to award it the full $188,307.18, pursuant to LSA-R.S. 23:1205, which provides in pertinent part:

* * *
B. Any company which contracts for health care benefits for an employee shall have a right of reimbursement against the entity responsible for the payment of workers’ compensation benefits for such employee if the company paid health care benefits for which such entity is liable. The amount of reimbursement shall not exceed the amount of the entity’s liability for the workers’ compensation benefit. In the event the company seeks recovery for such in conjunction with a claim against any other party brought by the employee, the company may be charged with a proportionate share of the reasonable and necessary costs, including attorney fees, incurred by the employee in the advancement of his claim or suit.

Conversely, LUBA and ESIF contend the WCJ correctly limited Blue Cross’ recovery, under LSA-R.S. 23:1212, which provides, in pertinent part:

[P]ayment by any person or entity, other than a direct payment by the employee, a relative or friend of the ^employee, or by Medicaid or other state medical assistance programs of medical expenses that are owed under this Chapter, shall extinguish the claim against the employer or insurer for those medical expenses. This Section shall not be regarded as a violation of R.S. 23:1163. If the employee or the employee’s spouse actually pays premiums for health insurance, either as direct payments or as itemized deductions from their salaries, then this offset will only apply in the same percentage, if any, that the employer of the employee or the employer of his spouse paid the health insurance premiums.

When a law is susceptible to more than one interpretation, the one affording a reasonable and practical effect to the entire act is to be preferred over the one that renders the other part ridiculous or nugatory. SWAT 24, supra; Alliance for Affordable Energy v. Council of City of New Orleans, 96-0700 (La.7/2/96), 677 So.2d 424; Chailland Business Consultants v. Duplantis, 2003-2508 (La.App. 1st Cir.10/29/04), 897 So.2d 117, 126, writ denied, 2004-2922 (La.2/4/05), 893 So.2d 878; Breaux v. Lafourche Parish Council, 2002-1422 (La.App. 1st Cir.8/25/03), 851 So.2d 1173. Merely because more than one act of the legislature proscribes particular conduct does not mean that the multiple provisions are irreconcilable. Duplantis, supra; State v. Smith, 597 So.2d 1151, 1153 (La.App. 1st Cir.1992). Statutes specifically directed to the matter at issue must prevail as an exception to the statute more general in character in order to give effect to the legislative intent of the general rule. Id. In construing these statutes, all laws on the same subject matter should be construed together so as to produce a harmonious system. Duplantis, supra. The presumption is that a new law relating to such subject matter was enacted with reference to the former general law. Id. When possible, it is the duty of the court to adopt a ^construction of the provision that harmonizes and reconciles it with other provisions. Duplantis, supra; Breaux, supra.

In Principal Mut. Life Ins. Co. v. Progressive United Corp., 28,378 (La.App.2d Cir.5/8/96), 674 So.2d 1073, 1077, writ denied, 96-1474 (La.9/20/96), 679 So.2d 436, this court “[made] no attempt to interpret or to reconcile the provisions of §§ 1212 and 1205(B).” However, in Chailland Business Consultants v. Duplantis, supra, the court acknowledged that “there is a conflict between the provisions of LSA-R.S. 23:1212 and LSA-R.S. 23:1205(B).” In that case, the claimant’s health insurance carrier intervened, seeking reimbursement for the payment of the claimant’s health insurance claims. The court concluded that the health insurance carrier had the right to be reimbursed for the payments it made, stating:

[The health insurance carrier], the inter-venor, squarely fits into both LSA-R.S. 23:1212 and LSA-R.S. 23:1205 when it paid health insurance claims for [the claimant].
The legislative history indicates that in 1989, LSA-R.S. 23:1212 was enacted to prevent the employee from receiving a windfall when his health insurance earner and workers’ compensation carrier paid the same medical expenses. This law became effective Jan. 1, 1990 and is commonly referred to as the “medical expense offset” provision. This created confusion because some employers delayed authorizing their workers’ compensation carrier to pay their injured employee’s medical expenses, thereby forcing the employee’s personal health insurance care provider to foot the bill. To remedy this situation, in 1995, with H.B. 2326, the legislature amended LSA-R.S. 23:1205, granting a right of reimbursement to the health care provider against the workers’ compensation insurer.

Duplantis, 897 So.2d at 126-27. We agree with the First Circuit’s conclusion and its reasoning. LSA-R.S. 23:1205(B) is specifically directed to Blue Cross’ intervention in the instant matter. There is no language in that provision which limits a health insurance carrier’s reimbursement. For that reason, we reverse the WCJ’s determination that Blue Cross’ recovery should be reduced by 75%. Pursuant to LSA-R.S. 23:1205(B), we conclude that LUBA and ESIF are solidarily liable to Blue Cross for the reimbursement of medical expenses paid in the amount of $188,307.18.

CONCLUSION

For the foregoing reasons, we conclude that the OWC has subject matter jurisdiction over the workers’ compensation coverage dispute herein. We affirm the WCJ’s determination that claimant was covered individually under the ESIF workers’ compensation policy. We conclude that ESIF and LUBA are solidarily liable to claimant for workers’ compensation benefits. We affirm the WCJ’s denial of the claimant’s request for the lump sum payment pursuant to LSA-R.S. 28:1221(4)(s). We reverse the WCJ’s determination that LUBA alone is liable for penalties and attorney’s fees. We conclude that LUBA and ESIF are solidarily liable for separate penalties for each violation of the Workers’ Compensation Act, totaling $14,000. | a3We further find that LUBA and ESIF are solidarily liable for $21,210.47 in attorney fees incurred in the OWC proceedings, and we award attorney’s fees of $3,000 for work done on appeal.

AFFIRMED IN PART; REVERSED IN PART.

      . On joint motion of the parties, the claims were consolidated.

      . This court denied ESIF's application for supervisory writs on the issue of coverage. Ryan v. Ryan Construction Co., Inc., 39,354 (La.App. 2d Cir.8/26/04) (unpublished). ESIF then filed a suspensive appeal which was dismissed by this court. Ryan v. Blount Bros. Construction, Inc., 36,640 (La.App. 2d Cir. 12/9/04) (unpublished).

      . The issue of subject matter jurisdiction may be raised at any stage in the proceedings, including by the court on its own motion. Boudreaux v. State, Dept. of Transp. and Dev., 01-1329 (La.2/26/02), 815 So.2d 7; Northeast Realty v. Jackson, 36,276 (La.App. 2d Cir.8/14/02), 824 So.2d 1264.

      . Claimant contends in brief that ESIF also filed an exception to subject matter jurisdiction in the pending district court proceedings, arguing that the district court lacked subject matter jurisdiction, and the OWC is the proper tribunal to hear the coverage dispute. The district court sustained the exception, ruling that it lacked subject matter jurisdiction to resolve coverage disputes under the Workers’ Compensation Act.

      . The record revealed that Frazier solicited automobile and fire insurance for Gibson Insurance. Prospective policyholders solicited by Frazier would receive a copy of the policy from Gibson Insurance, along with a letter stating that they would receive the original policy as soon as Gibson Insurance received the premium. A 30-day grace period was allowed during which the prospective policyholders were covered. If the premium was not received within 30 days, the policy would be canceled.

      . LSA-R.S. 23:1101(B) provides in pertinent part:
      Any person having paid or having become obligated to pay compensation under the provisions of this Chapter may bring suit in district court against such third person to recover any amount which he has paid or becomes obligated to pay as compensation to such employee or his dependents.


source: Caselaw Access Project

author: WILLIAMS, Judge. BROWN, C.J.,

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Sylvester MEAD, Appellant.
    No. 40,406-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 19, 2006.

      Peggy J. Sullivan, Monroe, for Appellant.
    Paul J. Carmouche, District Attorney, Catherine M. Estopinal, Ron C. Stamps, Edward M. Brossette, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS and PEATROSS, JJ.
   WILLIAMS, Judge.

hThe defendant, Sylvester Mead, was charged by bill of information with public intimidation, a violation of LSA-R.S. 14:122. After a jury trial, defendant was found guilty as charged. However, the trial court granted defendant’s motion for post-verdict judgment of acquittal. On appeal, this court reversed, reinstated the conviction and remanded for consideration of the habitual offender bill. On remand, the district court adjudicated defendant a second felony offender and imposed a sentence of ten years at hard labor. The state applied for a writ of review. This court found that the evidence supported defendant’s adjudication as a third-felony offender and remanded for resentencing. After a sentencing hearing, the district court imposed the mandatory sentence of life imprisonment without benefit of parole, probation or suspension of sentence. Defendant appeals his habitual offender adjudication and sentence. For the following reasons, we affirm the habitual offender adjudication and remand defendant’s case to the trial court for reconsideration of the life sentence imposed.

FACTS AND PROCEDURAL BACKGROUND

At approximately 2:00 a.m. on October 22, 2000, police officers responded to a domestic disturbance call at the defendant’s residence in Shreveport and he was arrested. An officer alleged that while defendant was being transported to the holding facility he threatened to harm the officer. Defendant was charged with public intimidation. After a jury trial, defendant was convicted as charged. The trial court granted defendant’s motion for post-verdict judgment of acquittal and the state appealed. This court reversed the trial court’s acquittal and reinstated the conviction. State v. Mead, 36,131 (La.App. 2d Cir.8/14/02), 823 So.2d 1045, writ denied, 2002-2384 (La.3/14/03), 839 So.2d 34.

Subsequently, defendant was charged as a fourth felony offender but was adjudicated a second offender and sentenced to 10 years at hard labor. The state filed a writ application. In State v. Mead, 38,129 (La.App. 2d Cir.9/18/03), this court ruled that the trial court misinterpreted the law regarding the cleansing period, found that the evidence established defendant as a third-felony offender and remanded for re-sentencing consistent with the habitual offender statute. The defendant’s appeal was dismissed without prejudice as moot since he had not yet been resentenced. State v. Mead, 38,213 (La.App. 2d Cir.11/20/03). After a hearing, the district court imposed the mandatory sentence of life imprisonment without benefit of parole, probation or suspension of sentence. Defendant sought review of this court’s ruling on the habitual offender issue and in State ex rel. Mead v. State, 04-0030 (La.1/7/05), 891 So.2d 680, the supreme court ordered the trial court to appoint counsel and grant a hearing to determine if defendant was entitled to an out-of-time appeal. After the hearing, defendant filed the present appeal.

DISCUSSION

The defendant contends the trial court erred in imposing an excessive sentence. Defendant argues that the mandatory life sentence imposed is unconstitutional given the circumstances of the case and his background.

Under the Louisiana Constitution, the legislature has sole authority to define conduct as criminal and provide penalties for such conduct. LSAjConst.3 art. Ill, Section 1; State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672. Pursuant to this authority, the legislature enacted the habitual offender statute, LSA-R.S. 15:529.1, which has been upheld as constitutional on numerous occasions. State v. Johnson, supra; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Green, 36,-741 (La.App. 2d Cir.3/5/03), 839 So.2d 970. Since the habitual offender statute in its entirety is constitutional, the minimum sentences it imposes on recidivists are presumed to be constitutional. State v. Johnson, supra; State v. Green, supra.

The determination of an appropriate minimum sentence by the legislature should be afforded great deference by the judiciary. While the judiciary is not without authority to declare a mandatory minimum sentence under the habitual offender law excessive under the facts of a particular case, this should be done only in those rare instances where there is clear and convincing evidence to rebut the presumption of constitutionality. State v. Johnson, supra; State v. Wade, 36,295 (La.App. 2d Cir.10/23/02), 832 So.2d 977, writ denied, 2002-2875 (La.4/4/03), 840 So.2d 1213.

In order to successfully rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must “clearly and convincingly show that he is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.” State v. Johnson, supra; State v. Green, supra.

|4The sentencing court may not rely solely upon the nonviolent nature of the present crime or prior crimes as sufficient evidence to rebut the constitutional presumption. A record of nonviolent offenses can be a factor in a sentencing court’s determination that the minimum sentence is excessive, but cannot be the only, or even the major reason, for such a determination. State v. Johnson, supra; State v. Green, supra.

In the present case, at the time of defendant’s offense LSA-R.S. 15:529.1(A)(l)(b)(ii) provided that if the third felony or either of the two prior felonies is a felony defined as a crime of violence under LSA-R.S. 14:2(13), then “the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation or suspension of sentence.” We note that effective June 15, 2001, after defendant’s commission of the present crime, but before conviction and sentencing, this provision was amended to require a life sentence only in those cases where the third felony and the two prior felonies are defined as crimes of violence. However, this more lenient sentencing scheme does not apply in this case. See State v. Parker; 03-0924 (La.4/14/04), 871 So.2d 317. Thus, Section 529.1(A)(l)(b)(ii) mandated a life sentence without benefits for defendant since he is a third felony offender and one of the prior felonies, aggravated battery, is defined as a crime of violence under LSA-R.S. 14:2(13)(e).

Prior to imposing sentence, the trial court allowed the defense counsel an opportunity to present evidence to show why defendant should not be given a life term. Three witnesses testified that defendant possessed the capacity to be rehabilitated and should not receive a life sentence. The first |Rwitness stated that he had known defendant for approximately 15 years and he was employed during that period. The second witness, a cousin of defendant, testified that he was a good worker who cared for his family. The third witness, a counselor with the prison ministry at Caddo Correctional Center, stated that defendant would be a good candidate for the organization’s rehabilitation program, which assisted prisoners in their efforts to re-enter society. These witnesses acknowledged that they were not familiar with the defendant’s criminal history.

After hearing the testimony, the district court expressed the belief that the trial evidence did not support a conviction for public intimidation. The court noted that the hearing had given defense counsel “one more opportunity to make a record to show the Court why the Court should deviate from a life sentence.” In imposing sentence, the court stated:

Now, having considered the evidence that’s been presented, the whole record, this court is still convinced and still believes that the nature of the instant offense, public intimidation, does not warrant, under any conscionable or constitutional basis a life sentence. I’m not saying that Mr. Mead’s criminal history is not a bad one. It’s awful.... This judge is not opposed to the habitual offender [statute] and believes in life sentences. I just simply don’t think that this particular case warrants a life sentence.
Secondly, I think that a sentence less than life would be adequate, would protect the public, would foster the interest of justice and give the defendant an opportunity to get old enough that perhaps maybe he won’t commit such senseless and childish and foolish types of crimes. I still don’t think he was a threat to the police officer, and I don’t know what could ever convince me that you were a threat. But you have been a threat to your family, you have been a lawless criminal on this community and you wasted a lot of the community’s resources.... And I’ve been sitting here and I anticipated what this court could find or hear that would make this court legally depart from the life sentence. The bottom line is I don’t see it.... I’m convinced that I have no choice and the law does dictate.
LSo having said that, rather than spend any more of my time, the Court’s time or any other resources and try to come up with a reason for you not to get a life sentence, I’ve given up. I’ve done all that I can do. Because I think this would be the fifth time I would try to do something and I think it would be the fifth time I would be reversed. So having said all that and we’ve consumed enough time, based upon the Second Circuit Court of Appeal ruling that you are in fact a third habitual offender this court is now sentencing you to the mandatory sentence of life imprisonment for the remainder of your natural life without the benefit of parole, probation, or suspension-of sentence.

As noted above, the habitual offender statute subjected defendant to a mandatory life sentence as a third felony offender with a prior offense defined as a crime of violence. Whenever a defendant is faced with a mandatory life sentence as a multiple offender, 'heightened scrutiny is triggered when determining whether defendant falls within those “rare” circumstances where a downward departure is warranted. State v. Wilson, 37,555 (La.App. 2d Cir.11/6/03), 859 So.2d 957, writ denied, 2003-3232 (La.6/4/04), 876 So.2d 73.

In this type of case, the district court has the duty to determine whether the mandatory sentence is constitutional as applied to this defendant in accordance with the principles which our supreme court enunciated in Dorthey and Johnson. The district court’s statements at sentencing do not indicate that such an analysis was performed in this case. Consequently, we must remand this case to the district court for reconsideration of the sentence imposed in light of State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672.

Upon remand, the defendant is entitled to have the district court determine whether imposition of life imprisonment without benefit of [7parole, probation or suspension of sentence in this case is constitutionally excessive after considering the guidelines of Johnson and weighing pertinent factors, including the use or lack of violence in the current and' prior offenses, the legislature’s amendment of the habitual offender statute to provide a more lenient punishment for crimes committed after June 2001 and the extent to which this particular life imprisonment imposes an undue burden on the taxpayers, who would be required to feed, house and clothe this defendant for -life. See State v. Lindsey, 99-3302 (La.10/17/00), 770 So.2d 339; State v. Wilson, supra.

The record shows that defendant’s prior convictions were a 1985 simple burglary and a 1995 aggravated battery. However, we note that the record does not contain details of the defendant’s prior offenses. Thus, the district court may benefit from ordering a pre-sentence investigation prior to reconsideration.

Habitual Offender Adjudication

In four pro se assignments of error, the defendant contends the evidence was insufficient to support his adjudication as a multiple offender. Defendant argues that the state never produced the' “proper” documentation with which to adjudicate him as an habitual offender since the guilty plea transcripts were not submitted at the hearing and are not available now.

At the time defendant committed the present offense, LSA-R.S. 15:529.1 provided in pertinent part:

(b) Except as otherwise provided in this subsection, the district attorney shall have the burden of proof beyond a reasonable doubt on any issue of fact. The presumption of regularity of judgment shall be sufficient to meet the original ^burden of proof. If the person claims that any conviction or adjudication of delinquency alleged is invalid, he shall file a written response to the information. ... The person shall have the burden of proof, by a preponderance of the evidence, on any issue of fact raised by the response.

The state filed a fourth felony habitual offender bill of information listing the public intimidation conviction and defendant’s prior convictions for armed robbery in 1979, simple burglary in 1985 and aggravated battery in 1995. In response, the defendant filed a pro se pleading in opposition to the multiple offender bill on the following grounds:

1. The habitual offender statute .does not apply in cases “where more than ten years have elapsed since the expiration of the prior convictions.” .
2. The bill subjects him to double jeopardy since he is being tried twice for the same crime.
3. He was not informed of the “habitual bill” until after the jury reached its verdict.
4. Under the bill he will receive cruel and unusual punishment since it is disproportionate to the crime.

Defendant’s trial attorney also filed an objection to the multiple offender bill. The pleading objected to the use of all three prior convictions on the following grounds:

1. The state has failed to provide any evidence of the armed robbery conviction.
2. The documents to support the April 12, 1985 conviction for simple burglary provided during discovery were not original or certified copies.
3. The state has not shown that the defendant was clearly advised of his constitutional rights or that the plea constituted a waiver of his rights.
4. The 1985 plea is “outside the cleansing period”.
5. The guilty plea entered on June 22, 1995, is defective because the court did not advise the defendant of his right to compulsory process, against self-incrimination and to a jury trial.

At the multiple offender hearing, the state’s expert obtained 19defendant’s' fingerprints in court and they were introduced into evidence as Exhibit S-l. In addition, the state presented Exhibit S-2, a certified copy of the bill of information filed April 12, 1985, in Caddo docket number 130,154, charging Mead with simple burglary and bearing his fingerprints on the reverse side of the bill; Exhibit S-3, a certified copy of the clerk of court’s minutes in Caddo docket number 130,154 reflecting that the accused appeared in court with counsel and entered a guilty plea after being advised of his rights per Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Exhibit S-4, a certified copy of the bill of information filed May 3, 1995, in docket number 174,-037, charging Mead with aggravated battery and bearing-his fingerprints on the reverse side of the bill; ■ and Exhibit S-5, a certified copy of the clerk of court’s minutes in docket number 174,037, reflecting that the accused was present'with counsel and defendant was informed of his rights per Boykin v. Alabama when he entered the guilty plea.

The defense counsel objected to admission of the minutes on the grounds that they could not be certified by the state’s fingerprint expert and they did not specify that defendant understood his constitutional rights. The trial court found that the documents presented were certified copies and were admissible. The defense, did not present any evidence.

The trial court ruled that the 1985 conviction could not be used since it was outside the 10-year cleansing period and adjudicated defendant a second felony offender. As noted above, this court reversed, finding that the district court incorrectly applied the- cleansing period. Subsequently, |indefendant was. sentenced as a third felony offender. In his pro se brief defendant argues that there was never “proper documentation” to adjudicate him as a multiple offender because the “Boykin transcripts” in docket numbers 130,154 and 174,037 are lost.

Under the. holding in State v. Shelton, 621 So.2d 769 (La.1993), the state has the initial 'burden to prove the existence .of the prior guilty pleas and that defendant was represented by counsel when they were taken. Once the state satisfied its burden, the defendant was required to produce affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the pleas. The record shows that defendant’s only objections were that the minutes were not certified and they did not mention that defendant had been “fully” advised of his rights.

The case of State v. O’Neal, 34,814 (La.App. 2d Cir.10/12/01), 795 So.2d 1292, involved a similar factual scenario. In O’Neal, the accused argued that his 1993 conviction should not have been used to enhance his sentence because the state did not introduce the guilty plea transcript. This court found that although the prior plea transcript was never entered into evidence, the state had proven that the accused was represented by counsel shifting the burden to defendant to prove an irregularity. As in O’Neal, the record in this case demonstrates that the state carried its burden to prove that defendant was represented by counsel when he entered the prior guilty pleas. Thus, the state sufficiently established the defendant’s two prior felony convictions to support the habitual offender adjudication. The assignments of error lack merit.

|nIn his final pro se assignment, defendant contends the district court erred in sentencing him after a reasonable time period had expired. LSA-C.Cr.P. art. 874 provides that the court shall impose sentence without unreasonable delay.

Neither the defendant nor his counsel briefed this issue. Assignments of error which are neither briefed nor argued are considered abandoned. URCA Rule 2-12.4; State v. Schwartz, 354 So.2d 1332 (La.1978); State v. Kotwitz, 549 So.2d 351 (La.App. 2d Cir.1989), writ denied, 558 So.2d 1123 (La.1990). Thus, this assignment of error was abandoned. However, we note that on September 18, 2003, this matter was remanded to the district court for resentencing and defendant was sentenced to life imprisonment without benefit of parole, probation or suspension of sentence on February 18, 2004, a period of approximately five months. Consequently, the record does not demonstrate an unreasonable delay in sentencing.

CONCLUSION

For the foregoing reasons, the habitual offender adjudication is affirmed and this case is remanded to the district court for reconsideration of the life sentence imposed consistent with this opinion.

HABITUAL OFFENDER ADJUDICATION AFFIRMED; REMANDED FOR RECONSIDERATION.

BROWN, J., dissents with written reasons.

BROWN, C.J.,

dissenting.

I,The mandatory minimum punishments provided for by the multiple offender statute are presumed constitutional. Where there is a mandatory sentence under a statute that is constitutional, there is no need for the trial court to justify, under article 894.1, a sentence it is legally required to impose. State v. Koon, 31,177 (La.App. 2d Cir.02/24/99), 730 So.2d 503; State v. Rose, 606 So.2d 845 (La.App. 2d Cir.1992).

There is no need to remand this case back to the trial court for a third time. The trial court provided defendant with the opportunity to show that, as applied to him, the mandatory life sentence under the Habitual Offender Law was constitutionally excessive. The trial court stated, “I’ve been sitting here, and I anticipated what this court could find or hear that would make this court legally depart from a life sentence. The bottom, line is I don’t see it ... I’m convinced that I have no choice and the law does dictate.” (Emphasis added).

As stated in State v. Dorthey, supra, “[ajccordingly, under the 1974 Constitution ‘the excessiveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court.’ ” Defendant was allowed to present witnesses and argument on this issue. Rather than remand, this court should, based upon the record, review the trial court’s decision.


author: BROWN, C.J.

text:
    Imogene KHAN and Richard E. Early, Plaintiffs-Appellants v. Elton B. RICHEY and Charles E. Grubb, Defendants-Appellees.
    No. 40,805-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 19, 2006.
    Rehearing Denied May 11, 2006.

      Daniel J. Mackel, Jr., New Orleans, Dwan S. Hilferty, Metairie, for Appellants.
    Cook, Yancey, King & Galloway, by Herschel E. Richard, Jr., Shreveport, for Appellees.
    Before BROWN, WILLIAMS, and PEATROSS, JJ.
   BROWN, C.J.

_JjThis appeal has been taken by plaintiff, Imogene Khan, from the trial court’s grant of summary judgment in favor of defendants, Elton Richey and Charles Grubb, dismissing with prejudice her action for legal malpractice. For the reasons set forth below, we affirm.

Facts and Procedural Background

From December 1990 to May 2000, Imogene Khan was employed by Southern University as a member of its campus police force in Shreveport. Ms. Khan, who is a white female, maintains that during the course of her employment with Southern University, she was subjected to racial and sexual harassment. She also contends that in October 1999, she was denied a promotion to the position of chief of the campus police force due to her sex and/or race and on May 22, 2000, she was wrongfully discharged by the university for the same discriminatory reason(s).

In December 1999, Ms. Khan hired Shreveport attorneys Elton Richey and Charles Grubb to pursue employment discrimination claims against Southern University. On December 13, 1999, as a prerequisite to filing suit on behalf of Ms. Khan, Richey and Grubb filed a Charge of Discrimination with the Equal Employment Opportunity Commission (the “EEOC”), notifying it of her harassment and failure to promote claims. Thereafter, on February 11, 2000, Richey and Grubb filed suit against Southern University and individual defendants in the U.S. District Court for 12the Western District of Louisiana, Shreveport Division, asserting both federal and state employment discrimination claims on behalf of Ms. Khan.

On May 22, 2000, Ms. Khan was terminated from her employment at Southern University for what she claims are discriminatory reasons. On the other hand, the university takes the position that Ms. Khan, who had not worked since September 1999, refused to return to work in May 2000 when she had used up her leave time. In May of 2001, Ms. Khan received a “Charge of Discrimination and Affidavit” from the EEOC, which formally recapitulated her harassment and failure to promote claims and listed the relevant witnesses. Ms. Khan verified the allegations and returned the documents to the EEOC, thus “perfecting” her charge as to those claims.

In July 2001, Richey and Grubb filed a motion to withdraw as Ms. Khan’s counsel of record. This motion was granted on September 28, 2001, and attorney Thomas David Jones enrolled on Ms. Khan’s behalf. The EEOC sent Ms. Khan a notice (also known as a “right to sue” letter) entitled “Dismissal and Notice of Rights” informing her that it was concluding its administrative investigation of her harassment and failure to promote claims because the matter was in federal court. On March 3, 2002, Jones passed away and on July 1, 2002, Daniel Mackel and Dwan Hilferty enrolled as counsel of record on Ms. Khan’s behalf.

Thereafter, on July 16, 2002, Southern University filed a motion for summary judgment urging its qualified immunity. This motion was denied by the federal district court on February 11, 2003. The university appealed to the Fifth Circuit and while the matter was pending on appeal, Ms. Khan |,<¡settled her claims with Southern University for approximately $122,000 and the matter was dismissed with prejudice on the parties’ joint motion.

On December 22, 2003, six days after Ms. Khan settled her discrimination claims against Southern University, she filed the instant legal malpractice action against her original attorneys, Elton Richey and Charles Grubb (hereinafter when the term “defendants” is used, it will refer to them exclusively), in state district court. On July 22, 2004, defendants filed an answer and on November 16, 2004, they filed a motion for summary judgment seeking dismissal of Ms. Khan’s suit. According to defendants, there was no genuine issue of material fact as to whether they provided negligent representation to Ms. Khan in her employment discrimination claims and further, plaintiff could not establish any damages as a result of her attorneys’ alleged malpractice because she voluntarily settled her claims in the underlying suit.

A hearing was held on the motion for summary judgment on January 24, 2005, and defendants’ motion was denied. Rich-ey and Grubb filed a motion for reconsideration, which was heard on May 23, 2005. The trial court granted defendants’ motion for reconsideration and rendered summary judgment in their favor, dismissing with prejudice Ms. Khan’s claims against them. It is from this judgment that plaintiff has appealed.

Discussion

In determining whether summary judgment is appropriate, appellate courts are to review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment |4is proper. Suire v. Lafayette City-Parish Consolidated Government, 04-1459 (La.04/12/05), 907 So.2d 37; Costello v. Hardy, 03-1146 (La.01/21/04), 864 So.2d 129; Lambert v. State of Louisiana, 40,170 (La.App. 2d Cir.09/30/05), 912 So.2d 426.

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

The supreme court has recognized that a “genuine issue” is a “triable issue,” an issue on which reasonable persons could disagree. Champagne v. Ward, 03-3211 (La.01/19/05), 893 So.2d 773; Jones v. Estate of Santiago, 03-1424 (La.04/14/04), 870 So.2d 1002. A fact is material for summary judgment purposes when its existence or nonexistence may be essential to claimant’s cause of action under the applicable theory of recovery. La. C.C.P. art. 966; NAB Natural Resources v. Willamette Industries, Inc., L.L.C., 28,-555 (La.App. 2d Cir.08/21/96), 679 So.2d 477. In other words, material facts are those which potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.07/05/94), 639 So.2d 730; DeBrun v. Tumbleweeds Gymnastics, Inc., 39,499 (La.App. 2d Cir.04/06/05), 900 So.2d 253.

|BTo establish a claim for legal malpractice, a plaintiff must prove the existence of an attorney-client relationship, negligent representation by the attorney, and loss caused by that negligence. Costello v. Hardy, 03-1146 (La.01/21/04), 864 So.2d 129; Herring v. Wainwright, 32,360 (La.App. 2d Cir.09/22/99), 742 So.2d 120, writ denied, 99-3065 (La.01/07/00), 752 So.2d 865. Failure to prove any one of these elements is fatal to the claim. Costello, supra; Whittington v. Kelly, 40,386 (La.App. 2d Cir. 12/14/05), 917 So.2d 688.

An attorney is not required to exercise perfect judgment in every instance, but his license to practice and his contract for employment hold out to a client that he possesses certain minimal skills, knowledge, and abilities. Herring, supra; Morgan v. Campbell, Campbell & Johnson, 561 So.2d 926 (La.App. 2d Cir.1990); Burris v. Vinet, 95-0668 (La.App. 1st Cir.11/09/95), 664 So.2d 1225.

An attorney is liable to his client for the damages caused by the attorney’s negligence in handling the client’s business, providing that the client proves by a preponderance of the evidence that such negligence is the proximate cause of the loss claimed. Bauer v. Dyer, 00-1778 (La.App. 5th Cir.02/28/01), 782 So.2d 1133, writ denied, 01-0822 (La.05/25/01), 793 So.2d 162. The proper method of determining whether an attorney’s malpractice is a cause in fact of damage to his client is whether the performance of that act would have prevented the damage. Bauer, supra; Prestage v. Clark, 97-0524 (La.App. 1st Cir.12/28/98), 723 So.2d 1086, writ denied, 99-0234 (La.03/26/99), 739 So.2d 800; Ault v. Bradley, 564 So.2d 374 (La.App. 1st Cir.1990), writ denied, 569 So.2d 967 (La.1990).

Plaintiff offered the affidavit of local attorney Allison Jones in an attempt to create issues of fact as to whether defendants were negligent in their representation of Ms. Khan. In her affidavit, Ms. Jones opined that attorneys Richey and Grubb breached the applicable standard of care in their representation of Ms. Khan in that:

(1) They failed to insure that Ms. Khan had a timely and adequate charge of discrimination filed with the EEOC;
(2) They failed to include a claim for wrongful and retaliatory termination of employment for the charge filed with the EEOC in June of 2001, even though Ms. Khan was terminated from her employment . with Southern University in May of 2000;
(3) They failed to insure that Ms. Khan verified a charge of discrimination within the deadline established by law;
(4) They failed to amend the original charge or file a new charge of discrimination with the EEOC when Ms. Khan was terminated; and
(5) They failed to amend Ms. Khan’s lawsuit to assert a new cause of action for discrimination.

We first note that the record shows that defendants filed a “Charge of Discrimination” with the EEOC on Ms. Khan’s behalf on December 13,1999. As a prerequisite to filing a federal employment discrimination lawsuit, a claimant must file a charge of discrimination with the EEOC within 300 days of the allegedly discriminatory act. 42 U.S.C. § 2000e-¡5(e)(l)(2003);7 Frank v. Xerox Corporation, 347 F.3d 130 (5th Cir.(Tex.) 2003); Byers v. Dallas Morning News, Inc., 209 F.3d 419 (5th Cir.(Tex.) 2000). In the complaint, defendants alleged that Ms. Khan had been harassed at work due to her race and sex and that this harassment culminated in her superiors denying her a promotion to the chief of the campus police force in May 1999. Clearly, plaintiffs charge of discrimination was timely filed with the EEOC. Allegation (1) in Ms. Jones’ affidavit is not supported by the evidence of record.

As for allegation (3), the record likewise fails to support Ms. Jones’ statement that defendants failed to insure that Ms. Khan verified a charge of discrimination within the legal deadline. Once an administrative charge of discrimination is filed with the EEOC, the commission begins an investigation into the claimant’s allegations before it generates a detailed affidavit for the claimant to sign, which formalizes the charge. Edelman v. Lynchburg College, 535 U.S. 106, 122 S.Ct. 1145, 152 L.Ed.2d 188 (2002). When and if the claimant verifies the affidavit by signing it, the charge is considered to be perfected. Id. A perfected charge “relates back” to the date of the filing of the initial charge of discrimination with the EEOC. Id.

In the instant ease, a “Notice of Charge” was sent to Ms. Khan on November 1, 2000, requesting that she sign, date, and return the enclosed charge of discrimination and affidavit within 30 days, which she did. With the assistance of defendants, Ms. Khan not only completed the forms sent by the EEOC, she prepared a very lengthy, detailed position statement Iswhich elaborated upon and supplemented her original filing. All of these documents were returned within the deadline set by the EEOC. Thereafter, the EEOC sent plaintiff a “Dismissal or Notice of Rights” letter (also known as a “right to sue” letter) on September 27, 2001, indicating that the reason the agency was closing its file was because she had filed her claim in federal court.

Taking the remaining opinions expressed in Ms. Jones’ affidavit as true, but not that these acts/inactions (not filing a new EEOC charge or amending the original EEOC charge to alleged wrongful/retaliatory discharge and failing to amend plaintiffs federal claim) constitute attorney negligence, we nonetheless find that plaintiff has failed to prove that she has sustained a loss as a result of her former attorneys’ acts/inactions.

As a condition precedent to bringing a Title VII claim, a plaintiff must exhaust her available administrative remedies by pursuing the appropriate claim with the EEOC. National Association of Government Employees v. City Public Service Board, 40 F.3d 698 (5th Cir.(Tex.) 1994); Tolbert v. United States, 916 F.2d 245 (5th Cir.(Tex.) 1990). Once a Title YII complaint is filed, however, the court’s inquiry is not limited only to the exact charge previously brought before the EEOC. The scope of inquiry.encompasses discrimination like or related to allegations contained in the EEOC charge and growing out of such allegations during the pendency of the case before the EEOC. National Association of Government Employees, supra; Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir.(Tex.) 1970). Courts have interpreted the “like or related to” language to permit | nclaims that could reasonably be expected to grow out of the charge . of discrimination. Thomas v. Texas Department of Criminal Justice, 220 F.3d 389 (5th Cir.(Tex.) 2000); Young v. City of Houston, Texas, 906 F.2d 177 (5th Cir.(Tex.) 1990).

In Harris v. Parker College of Chiropractic, 286 F.3d 790 (5th Cir.(Tex.) 2002), the defendant argued that the plaintiffs couldn’t assert constructive discharge- in their federal complaint because they had not raised it in their original EEOC charge. The court observed that in the Fifth Circuit, a claimant is not required to assert all legal claims in her EEOC charge; it is sufficient if, in the EEOC charge the claimant asserts the facts that are the basis for the legal claims. See also Sanchez, supra. More specifically, in Gupta v. East Texas State University, 654 F.2d 411 (5th Cir.(Tex.) 1981), the Fifth Circuit held that it was unnecessary for a plaintiff to .exhaust administrative remedies prior to asserting a retaliation claim growing out of an earlier charge — the district court has ancillary jurisdiction to hear such a claim when it grows out of an administrative charge that is properly before the court. See also Barrow v. New Orleans Steamship Association, 932 F.2d 473 (5th Cir.(La.) 1991); Gottlieb v. Tulane University of Louisiana, 809 F.2d 278 (5th Cir.(La.) 1987); Green v. Louisiana Casino Cruises, Inc., 319 F.Supp.2d 707 (M.D.La.2004).

In light of the above' jurisprudence, we find that, as a matter of law, defendants’ failure to either supplement the original EEOC charge or file a new charge did not cause damage or loss to Ms. Khan. Nor can we say that |1(1defendants’ failure to amend plaintiffs federal complaint caused her any damage or loss.

Federal Rule of Civil Procedure 15(c) provides that an amendment of a pleading relates back to the date of the original pleading when the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading. The policy of the federal rules is to permit liberal amendment of pleadings to facilitate determination of claims on the merits and to prevent litigation from becoming a technical exercise in the fine points of pleading. Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594 (5th Cir.(La.) 1981); Clemmer v. Enron Corp., 882 F.Supp. 606 (S.D.Tex.1995). In employment discrimination cases in which the claimant sought to amend his or her federal complaint to add new claims which had not first been presented to the EEOC, courts have applied the “like or related to” standard set forth in Sanchez, supra, in determining whether to allow amendment. See Clemmer, supra; McKinney v. Eastman Kodak Company, 975 F.Supp. 462 (W.D.N.Y.1997); Lazuran v. Kemp, 142 F.R.D. 466 (W.D.Wash.1991); Cummins v. E G & G Sealol, Inc., 690 F.Supp. 134 (D.R.I.1988).

In the instant case, defendants filed a federal complaint on behalf of Ms. Khan in February 2000. She claims that she was wrongfully terminated in May 2000. Prior to withdrawal from their representation of Ms. Khan in September 2001, defendants certainly could have amended plaintiffs [ n complaint to add claim for wrongful/retaliatory discharge, assuming this claim to be “like or related to” the original EEOC charge of discrimination. However, plaintiff promptly secured new counsel and her federal suit progressed until July 16, 2002, when Southern University filed a motion for summary judgment. Although plaintiffs current attorneys had only been enrolled as counsel of record for two weeks at that time, they managed to successfully oppose the university’s summary judgment motion, which was denied on February 11, 2003. While the matter was pending on appeal to the Fifth Circuit, in December of 2003, Ms. Khan settled her discrimination and harassment claims with Southern University. Prior to that time, neither of Ms. Khan’s subsequent attorneys took steps to amend her federal complaint, despite having ample time to do so (there was a lapse of approximately two years between the time that defendants withdrew from the case until Ms. Khan’s settlement with Southern University).

After our review of the record and application of the rules regarding summary judgment, La. C.C.P. art. 966, we find no error in the trial court’s grant of summary judgment in favor of attorneys Richey and Grubb. There are no genuine issues of material fact on the third element required for the viability of plaintiffs malpractice claim, a loss caused by attorney negligence. Quite simply, plaintiff can not prove that she sustained a loss as a result of defendants’ actions or inactions.

As noted above, the correct method to determine whether an attorney’s negligent actions are a cause in fact of damage to his client is | ^whether the performance of these acts would have prevented the damage. Prestage, supra; Ault, supra. In the instant case, what Ms. Khan has lost is the ability to pursue a claim for wrongful/retaliatory discharge against her former employer, Southern University. The cause of her loss, however, is not defendants’ allegedly negligent actions or inac-tions, but her own decision to settle and compromise her claims with the university. Her loss or damage, if any, was precipitated by her decision to “take the money and run,” a tactical and strategical move that obtained for her $122,000 (less her current counsel’s share) plus enough credits so she could receive full retirement benefits. See Gross v. Pieno, 04-820 (La.App. 5th Cir.12/28/04), 892 So.2d 662, writ denied, 05-0218 (La.04/22/05), 899 So.2d 582; Spellman v. Bizal, 99-0723 (La.App. 4th Cir.03/01/00), 755 So.2d 1013.

Conclusion

For the reasons set forth above, the judgment of the trial court is AFFIRMED. Costs are assessed to plaintiff-appellant, Imogene Khan.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, GASKINS, PEATROSS and DREW, JJ.

Rehearing denied.

      . One of Ms. Khan's co-workers, Richard Early, also retained attorneys Richey and Grubb to represent him in connection with employment discrimination claims against Southern University. The basis of Early's complaint was that he was harassed at work and wrongly denied a promotion to sergeant in retaliation for his support of Ms. Khan. Early’s claims and his legal malpractice suit against Richey and Grubb are not at issue in the instant appeal.

      . Plaintiff also submitted the affidavit of Glenn McGovern, an attorney who practices employment discrimination law in Orleans Parish, Louisiana. Because McGovern does not practice law in Shreveport or Caddo Parish, his opinions as to the applicable standards of care in that community are questionable. See Ramp v. St. Paul Fire and Marine Insurance Co., 263 La. 774, 269 So.2d 239 (1972); Herring v. Wainwright, 32,360 (La.App. 2d Cir.09/22/99), 742 So.2d 120, writ denied, 99-3065 (La.01/07/00), 752 So.2d 865.

      . The district court’s July 21, 2003, scheduling order gave Ms. Khan and Southern University until August 27, 2003, to amend their pleadings.