author: WILLIAMS, Judge.

text:
    Dorothy BROOKS, Plaintiff-Appellee v. MADISON PARISH SERVICE DISTRICT HOSPITAL, Defendant-Appellant.
    No. 41,957-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    March 7, 2007.

      Donald J. Anzelmo, Monroe, for Appellant.
    S. Douglas Brusari, for Appellee.
    Before WILLIAMS, DREW and LOLLEY, JJ.
   WILLIAMS, Judge.

Lin this workers’ compensation case, the employer, Madison Parish Service District Hospital, appeals a judgment in favor of the claimant, Dorothy Brooks. The workers’ compensation judge (WCJ) awarded the claimant supplemental earnings benefits (“SEB”), medical treatment and vocational rehabilitation services. For the following reasons, we affirm.

FACTS

The forty-six year-old claimant was employed by the hospital as a mental health technician. On July 30, 2004, while at work, she slipped and fell in a puddle of liquid on the floor. Just after the accident, the supervisor on duty, Betty Clark, saw claimant lying on the floor. Ms. Clark said that claimant was obviously in pain and was unable to get up on her own. Ms. Clark said that prior to the accident, claimant generally was very busy at the hospital taking care of patients, “just running the whole time,” and that she was not aware that claimant ever had problems with her knees.

Ms. Clark accompanied claimant to the emergency room at the hospital: The ER record from that date indicates that claimant’s chief complaints were pain in her left knee and left leg. The doctor diagnosed her with a contusion of the left knee and treated her with painkillers and a knee wrap. She returned to the ER on August 3, 2004, complaining of soreness to her body and extremities. She was given Vioxx and instructed to follow up with her family physician.

On August 12, 2004, the claimant went to see Dr. Donald Perry, her family doctor, with a complaint of pain in her left knee, lower back and right leg. Dr. Perry ordered an MRI of claimant’s left knee. The MRI | ¡.revealed a partial tear of the medial meniscus and moderate to severe chronic degenerative osteoarthritis in that knee. Dr. Perry suggested that claimant see an orthopedist in Vicksburg, Mississippi, for her complaints of pain. The claimant testified that her employer would not cover care provided out of state, so Dr. Perry sent her to see Dr. Douglas Brown in Monroe. In the meantime, claimant returned to the Madison Parish Hospital ER on September 22, 2004, with continued complaints of pain in her left knee; she was treated with painkillers.

Claimant’s first visit with Dr. Brown was on September 23, 2004; at that time, she was using crutches for mobility. Before her examination, claimant completed a health questionnaire wherein she described her accident and the resulting injuries as follows:

Slipped in liquid on floor. Right leg went straight out(,) fell on left knee and right fist, back popped in fall also.

On a body diagram in the same questionnaire, she indicated the types and locations of her current symptoms. She indicated that she had aching on the front side of her left knee and numbness radiating down her lower left leg toward her ankle. With an “x,” she identified this area as having worse pain than other areas. She also indicated with an “x” that she had worse aching pain in the lower right side of her back, in her right wrist and in the rear of her right.knee. In addition, she reported aching and numbness in the rear of both knees with the numbness radiating down the back of both lower extremities. She rated her pain as a “7” on a 0-10 scale. On another form, she indicated that she had numbness in her left leg at times, and there is a notation stating “right knee buck.” She also reported that she exercised by | ¡¿walking, dancing and doing aerobics.

In his handwritten notes from that first visit, Dr. Brown described claimant’s chief complaint as “(L) knee pain & (R) knee pain.” The history reported by the doctor stated in part that claimant “land[ed] on her knees and right wrist twisting her low back.” The doctor examined an x-ray of “the knee” (presumably the left knee) taken close to the time of the accident and observed a small buckle fracture. X-rays of her left knee taken at claimant’s visit on September 23rd showed that this injury had healed; x-rays of her right wrist, lumbar area and left ankle were normal. At that visit, the doctor’s impression was that claimant had a left ankle sprain, a right wrist strain, a lumbar strain and a healed buckle fracture in her left knee. The doctor gave claimant a knee brace, presumably for her left knee, ordered physical therapy and directed her to remain off work for four weeks.

On October 15, 2004, the claimant returned to see Dr. Brown, who noted no change in claimant’s left knee and noted that she had “some posterior discomfort” in her right knee. Dr. Brown injected both of claimant’s knees with painkiller and a steroid. He allowed claimant to return to work, “sitting primarily,” and again directed her to attend physical therapy. The doctor also wrote:

If there is no marked improvement then she will need a left knee arthroscopy due to the posterior horn medial meniscal tear on the left and also will need a right knee MRI which has not been done.

In an October 2004 note, Dr. Brown indicated that claimant had participated in physical therapy and continued to feel lumbar spine and knee pain; the doctor recommended an additional four weeks of physical therapy.

|4On October 29, 2004, Dr. Brown saw the claimant, who continued to complain of left knee pain. She agreed to arthroscopy of her left knee. She also complained of right knee pain and lower back pain radiating down both legs and stated that physical therapy had not helped her symptoms. In the Plan section, the doctor wrote “MRI of the right knee and lumbar spine will be scheduled. We will also schedule her for a left knee scope.” On that same day, claimant executed a choice of physician form selecting Dr. Perry as her family doctor and Dr. Brown as her orthopedist.

On November 22, 2004, Dr. Brown performed arthroscopic surgery on claimant’s left knee. In December 2004, the claimant saw Dr. Brown with continued complaints of right knee pain. Dr. Brown prescribed an antibiotic and instructed claimant to begin physical therapy in five days. Claimant testified that physical therapy was provided for both knees and for her back, but her symptoms did not improve.

On January 27, 2005, Dr. Brown wrote a progress note stating that claimant had trigger thumb pain that had not improved despite conservative treatment and that her knee (which knee is not noted) clicks with physical therapy. In regard to the unspecified knee, the doctor stated that claimant had “mild patella femoral impingement which should improve with rehab.” Dr. Brown performed trigger thumb release surgery on March 31, 2005.

There are no subsequent records showing that claimant was seen by Dr. Brown for a post-operative examination. The claimant testified that Dr. Brown briefly saw her once after the surgery but he did not follow her progress. Claimant testified that the knee surgery did not relieve her pain, |fiand that the thumb surgery provided “very little” relief.

On April 24, 2005, Dr. Brown faxed answers to a health questionnaire about claimant to Summit, the workers’ compensation administrator for the employer. Dr. Brown wrote that he had seen claimant on April 21, 2005, and opined that she had reached maximum medical improvement from her employment injury. Dr. Brown released claimant to return to work at full duty. He gave claimant a 5% “PPI” rating for her unspecified knee. He also recommended vocational rehabilitation services for claimant in the event she was not able to return to her pre-injury employment.

On May 2, 2005, claimant went to see Dr. Perry for a check-up. At that visit, she complained of pain in both her left and right knee. She also reported a concern about being released back to work after her thumb surgery. Dr. Perry advised claimant to return to Dr. Brown, but on May 12, 2005, Dr. Perry noted that claimant stated she was unable to see Dr. Brown, who said there was nothing else that he could offer her. In June 2005, claimant filed a disputed claim for compensation with the Office of Workers’ Compensation (“OWC”).

On September 12, 2005, claimant saw Dr. Jose Ferrer, an orthopedic surgeon, in Vicksburg, Mississippi. She paid for this visit through her husband’s health insurance and personal funds. The doctor’s report from that date states, in part:

This is a 47-year old woman that fell at home on 8/1/05 and injured both knees and her back. Since then she has had severe bilateral knee pain, worse on the left than on the right as well as low back pain. She had surgery on her left knee in November 2004 and arthroscopic de-bridement but apparently did not help her much.

| (¡Claimant testified that she told Dr. Ferrer’s nurse about her fall at work in 2004 and said:

And I had told her also about the knee weaknesses. The last one that I experienced was in 8/05 where my knees went to the — you know, tighten and shake and then they give way. And that’s all I could remember.

She also testified:

I haven’t had an accident,.... Just going to [the] floor, but I did that off and on. And when my knees got weak, I was in a position to where I could go down to the floor, but not a fall.

She explained that this is what she told Dr. Ferrer and his nurse. The doctor reviewed x-rays of both of claimant’s knees and of her lumbar spine. Dr. Ferrer noted bilateral knee arthritis, ordered an MRI of claimant’s lumbar area and gave her the first of three injections in her left knee to reduce her osteoarthritis pain. Dr. Ferrer stated in his deposition that claimant could have returned to work only under “very severe restrictions” including limitations on standing, walking, squatting, crawling, kneeling, jumping, running, bending or lifting more than 40 pounds. After the three shots, claimant returned to Dr. Ferrer on October 11, 2005, when the doctor noted that she was doing well and advised her to continue exercising.

Subsequently, an MRI was performed on claimant’s back that showed spondylo-sis. Claimant saw Dr. Ferrer about this on November 30, 2005, and the doctor recommended a lumbar corset and decided to schedule steroid injections for claimant. Dr. Ferrer referred claimant to Dr. Shawn Mei, a pain management specialist. Dr. Mei’s records reflect a history, stating in part:

The patient slipped and fell and landed on her knee on July 1 [ 7(sic), 2004. She subsequently injured her lower back and knee as well.

In December 2005, Dr. Mei concurred with Dr. Ferrer’s recommendation for steroid injections. However, claimant did not have the injections because she did not have insurance and each shot cost $1,500.

Claimant returned to see Dr. Perry again on December 6, 2005, complaining of “stiffness all over.” Dr. Perry’s note reflected that claimant had seen Dr. Ferrer, and Dr. Perry recommended that she continue to see Dr. Ferrer. She saw Dr. Ferrer again on February 22, 2006, and Dr. Ferrer’s note from that date reflected discussion of claimant’s 2004 work injury. Claimant said that this discussion was prompted by her discovery that the previous injury had been omitted from Dr. Ferrer’s records. Dr. Ferrer stated that the steroid injections were directly related to the work injury.

At his deposition in April 2006, Dr. Ferrer stated that claimant’s arthritis was not the result of her fall at work, but was the result of a process that had been ongoing for five to ten years at least. However, the doctor said that claimant’s advanced knee arthritis had been aggravated by an injury and that it was common to have asymptomatic arthritis that becomes symptomatic when the joint is injured. Dr. Ferrer said that claimant’s knees would continue to give her trouble for the rest of her life and estimated that, for her body as a whole, each knee represented a 10% impairment. He said that she had reached maximum medical improvement with her knees, but that she would probably need knee replacements in the future. The doctor’s records did not contain enough information for him to conclude whether her knee problems were related to her work injury. He said that he could | sdetermine from his records that her back injury was related to the work injury and gave her a 5% whole body impairment due to the back injury. The doctor stated that he would not have been able to see claimant from the beginning had he known that her condition was possibly related to a workers’ compensation injury, because apparently Mississippi state law required that such patients be certified.

At the time of the trial in April 2006, claimant testified that she was unable to work and was severely limited by pain in her day-to-day activities such as cooking or housework. She said that her knee pain prior to the accident was “on and off’ whereas after the accident her knee pain was “all day, every day” and “severe.” She also reported that her stomach did not tolerate the prescribed pain medication well and that she was generally unable to afford the medication at any rate. Her daughter, Carmaletta Brown, testified that prior to the accident her mother held two jobs but had not been able to work after the accident. Claimant’s sister, Geneva Jones, testified that prior to the accident claimant was very active, but after the accident she was rarely able to participate in the activities they used to enjoy, such as exercise and walking. The claimant’s husband, Freddie Brooks, stated that claimant worked two jobs prior to the accident. He said that on the night the accident happened, claimant told him that her knees, her back and her thumb were hurting. He also said that he was present when claimant told Dr. Brown about the pain in her back, both knees and thumb. Brooks testified that claimant’s arthritis never affected her so severely prior to the accident as it did afterward. He stated that he was at 1 phome on August 1, 2005, and that claimant did not fall on that date; he said “She grabbed the door.”

At the conclusion of the trial, the WCJ stated that great weight was given to the medical records and that she found claimant’s testimony to be credible. The WCJ concluded that claimant’s injuries were caused by her fall on July 30, 2004, because the evidence demonstrated that pri- or to the accident claimant had been able to pursue an active lifestyle, but afterward she was not able to participate in activities as she had become accustomed to doing. In addition, the WCJ found that whatever happened to claimant on August 1, 2005, was the result of her condition caused by the work-related fall. Thus, the WCJ concluded that claimant’s problems with both of her knees, her back and her thumb were caused by the fall at work.

Noting Dr. Ferrer had opined that claimant could work only with severe restrictions, that no vocational rehabilitation services were initiated despite Dr. Brown’s recommendation and that the employer had not offered claimant any modified position, the WCJ determined that claimant was incapable of earning at least 90% of her pre-injury wage as of September 12, 2005, the date of her first visit with Dr. Ferrer. In accordance with that finding, the WCJ ordered the employer to pay claimant SEB until it could demonstrate that she was able to earn 90% of her pre-injury wage. The WCJ ordered the employer to pay for vocational rehabilitation for the claimant and changed her treating physician to Dr. Ferrer, finding that it would not be beneficial to claimant to return to Dr. Brown after he failed to see her for a post-surgical examination. The WCJ determined that claimant Imhad not made any willful misrepresentations and that the hospital was not entitled to terminate her benefits, but was entitled to a credit for any payments that were also covered by medical insurance. The hospital appeals the judgment.

DISCUSSION

In three assignments of error, the employer contends the WCJ erred in concluding that claimant’s right knee and back problems were caused by her work accident. The employer argues that claimant’s testimony was not credible in light of contradictory objective medical evidence and physician records indicating a subsequent accident in August 2005.

Factual findings in workers’ compensation cases are subject to the manifest error rule. Winford v. Conerly Corp., 04-1278 (La.3/11/05), 897 So.2d 560. Under this rule, the reviewing court does not decide whether the factfinder was right or wrong, but only whether its findings are reasonable. Id.; Stobart v. State through Department of Transportation and Development, 617 So.2d 880 (La.1993). When there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Id. Thus, even when the appellate court is convinced it would have weighed the evidence differently had it been sitting as trier of fact, the court of appeal may not reverse if the factfinder’s findings are reasonable in light of the record reviewed in its entirety. Id.; Williams v. Saint Gobain Containers, 39,-313 (La.App. 2d Cir.1/26/05), 893 So.2d 144.

In its appellate brief, the employer has pointed out the evidence in the | ^record tending to discredit claimant’s version of events, including evidence (1) that claimant’s medical problems, in particular her arthritis, predated the accident, (2) that several of claimant’s medical history reports do not clearly reflect complaints of right knee and back pain, and (3) that claimant suffered a second accident on August 1, 2005. In viewing the record as a whole, however, we conclude the evidence supports the WCJ’s finding of fact that the July 2004 accident caused the claimant’s injuries which prevent her from working.

Unquestionably, claimant had experienced problems with her knees and her back prior to the July 2004 incident. Dr. Ferrer noted that claimant’s arthritis was not caused by the incident, but instead was a problem that predated it by as much as ten years. However, the record contains ample evidence that before her work injury, the claimant’s existing knee and back troubles were not disabling and did not cause any substantial impairment to her very active work and personal life. Dr. Ferrer explained that a traumatic injury frequently causes asymptomatic arthritis to cause problems for a patient, and the record supports that as the most reasonable interpretation of the evidence in this case.

A careful review of the medical records shows that claimant had a general complaint of pain all over her body shortly after the work accident and complained of pain in her right leg and back to her doctor only two weeks after the incident. The diagram that claimant completed for Dr. Brown at her first visit in late September 2004, approximately seven weeks after the incident, contains essentially all of the health complaints that she |12described as resulting from the work accident. There is no omission in the medical records that suggests a suspiciously late onset of any symptom of pain related to injury to her right knee and back.

Finally, the record tends to support the WCJ’s conclusion that the August 1, 2005 incident was not a new injury, but instead was the result of claimant’s work accident. This August incident is primarily reflected in Dr. Ferrer’s records, which are notably incomplete with regard to claimant’s history of the work injury and indeed of her surgeries. The WCJ evidently accepted claimant’s testimony that she corrected this omission when it was discovered.

An employer is liable for .workers’ compensation when the initial injury is aggravated by medical complications or a subsequent injury, if the complications are caused by the work-related injury. Bandy v. International Paper Co., 29,085 (La.App. 2d Cir.2/26/97), 690 So.2d 902, writ denied, 97-1101 (La.6/20/97), 695 So.2d 1354; Fields v. Sperry Rand Corp., 343 So.2d 339 (La.App. 2d Cir.), writs denied, 345 So.2d 902, 903 (La.1977). Claimant’s testimony about the weakness in her knees after the July 2004 accident supports the finding of no new injury. Considering the medical evidence presented, the WCJ’s decision to credit claimant’s testimony was reasonable. Based upon this record, we cannot say the WCJ was clearly wrong in finding that claimant’s injuries were caused by her fall at work. The assigm ments of error lack merit.

Supplemental Earnings Benefits

The employer contends the WCJ erred in awarding SEB to the |iaclaimant. The employer argues that the evidence presented did not support the award of such benefits because the claimant had been released to her pre-injury job without restriction by her treating physician.

A claimant is entitled to receive SEB if she sustains a work-related injury that results in the inability to earn 90% or more of her pre-injury wage. LSA-R.S. 23:1221(3)(a). The claimant bears the initial burden of proving, by a preponderance of the evidence, that the injury resulted in the inability to earn that amount, under the facts and circumstances of the case. Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733. If the claimant meets this burden, then the burden shifts to the employer to prove that the claimant is physically able to perform a certain job and that the job was offered to the claimant or that the job was available to her or within her or the employer’s geographic region. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. If the employer satisfies that burden, then the claimant must show by clear and convincing evidence, unaided by any presumption of disability, that she is unable to perform the offered or available employment, solely as the result of substantial pain. LSA-R.S. 23:1221(3)(c) (ii); Payne v. Lawn Lourd Lawn Service, 35,491 (La.App. 2d Cir.12/5/01), 803 So.2d 321.

As of September 12, 2005, Dr. Ferrer opined that claimant could return to work only with a wide variety of restrictions, and Dr. Brown had already indicated that vocational rehabilitation would be necessary if claimant was not able to return to work as he recommended. As previously noted,- although Dr. Brown had released claimant to return to work without | ^restriction in early 2005, he failed to reexamine her after performing the second surgery and before releasing her to work. The WCJ was not manifestly erroneous in accepting the diagnosis and recommendation of Dr. Ferrer, who examined her more recently. Given the combination of the doctors’ recommendations, the WCJ was not clearly wrong to conclude that claimant would not be able to return to work and earn 90% of her pre-injury wages until her health problems were stabilizpd. The assignment of error lacks merit.

Rehabilitation Services

The employer contends the WCJ erred in ordering vocational rehabilitation services for claimant. The hospital argues that the WCJ was not authorized to order vocational rehabilitation because claimant did not request it in her claim for compensation.

LSA-R.S. 23:1226 provides that when an employee suffers an injury which precludes earning wages equal to the pre-injury wage, the employee shall be entitled to prompt rehabilitative services. Initially, we observe that the claimant’s right to rehabilitation services was listed as one of the issues to be litigated in the employer’s October 2005 pre-trial statement.' Thus, the employer was aware that vocational rehabilitation was a potential issue. •

The employer’s argument that claimant is not entitled to rehabilitation services is largely based upon Dr. Brown’s 2005 release of claimant to work without restriction. However, at the same time, Dr. Brown made the recommendation for. rehabilitation services if needed, indicating that claimant was not ready for full duty. In addition, - Dr. Brown released the 11sclaimant after surgery, without the benefit of any post-operative examination to assess her condition and. despite the lack of an MRI of the right knee and lower back as he had recommended. Further, the work restrictions imposed by Dr. Ferrer were consistent with the need for rehabilitation services. Given the medical evidence of claimant’s injuries and treatment, and considering her pre-accident ability to engage in work without substantial impairment, we cannot say the WCJ was clearly wrong in ordering vocational rehabilitation services for the claimant. The assignment of error lacks merit.

Choice of Physician

The employer contends the WCJ erred in appointing claimant’s choice of orthopedic physician. The employer argues that there was no basis to designate Dr. Ferrer as treating physician because claimant failed to show evidence that Dr. Brown had refused to provide treatment.

LSA-R.S. 23:1203(A) mandates that an employer provide an injured employee with all necessary medical treatment. LSA-R.S. 23:1121 provides, in part:

B. (1) The employee shall have the right to select one treating physician in any field or specialty. The employee shall have a right to the type of summary proceeding provided for in R.S. 23:1124(B), when denied his right to an initial physician of choice. After his initial choice the employee shall obtain pri- or consent- from the employer or his workers’ compensation carrier for a change of treating physician within that same field or specialty. The employee, however, is not required to obtain approval for [a] change to a treating physician in another field or specialty.

In the present case, the claimant chose Dr. Brown as her treating orthopedic surgeon. However, after performing the second of two surgeries |1tiupon the claimant, Dr. Brown did not examine the claimant again prior to releasing her to work at full duty. Dr. Perry’s notes indicate that the claimant attempted to see Dr. Brown again, but was unable to do so because she was informed that Dr. Brown did not have any additional treatment to offer. Further, the MRI scans of claimant’s back and right knee were not done while she was under Dr. Brown’s care. Under the circumstances and after finding that the claimant’s work-related health problems still required treatment, the WCJ did not err in allowing claimant to see, at the employer’s expense, the other physician who had treated her with some success. The assignment of error lacks merit.

Forfeiture of Benefits

The employer contends the WCJ erred in denying the defense of fraud. It is unlawful for a person to willfully make a false statement or representation for the purpose of obtaining workers’, compensation benefits. LSA-R.S. 23:1208(A). A purported claimant who violates this rule forfeits his right to workers’ compensation benefits. LSA-R.S. 23:1208(⅛). Pursuant to LSA-R.S. 23:1208, forfeiture of benefits is authorized upon proof that: (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment. Howard v. Holyfield Construction, Inc., 36,734 (La.App. 2d Cir.3/18/03), 839 So.2d 1277, unit denied, 03-1109 (La.6/6/03), 845 So.2d 1097, appeal after remand, 38,728 (La.App. 2d Cir.7/14/04), 878 So.2d 875, writ denied, 04-2303 (La.1/7/05), 891 So.2d 684. The statute applies to any false statement or misrepresentation made willfully by |17a claimant for the purpose of obtaining benefits. Id.

Forfeiture is a harsh remedy and must be strictly construed. Wise v. J.E. Merit Constructors, Inc., 97-0684 (La.1/21/98), 707 So.2d 1214; Johnikin v. Jong’s, Inc., 40,116 (La.App. 2d Cir.9/21/05), 911 So.2d 413, writ denied, 05-2251 (La.2/17/06), 924 So.2d 1020. Nevertheless, the WCJ’s decision to impose or deny forfeiture under § 1208 is a factual finding which will not be disturbed on appeal absent manifest error. Johnikin v. Jong’s, Inc., supra; Graham v. Nissan, 39,656 (La.App. 2d Cir.6/29/05), 907 So.2d 213.

This record does not show that the claimant wilfully made any false statement during the course of treatment or during the legal proceedings. The WCJ specifically questioned the claimant regarding the discrepancies between her testimony and the medical records and claimant explained her communications with the doctors’ offices. Although claimant previously complained of low back pain in May 2004, she testified that such pain occurred from fatigue after working all day and was less severe than the pain caused by her subsequent work accident. Regarding the September 2005 visit to Dr. Ferrer, claimant explained that Dr. Perry had referred her to Dr. Ferrer for treatment related to her work accident. Additionally, Dr. Mei’s records referenced a work accident in July 2004.

The WCJ considered the conflicting evidence, heard the testimony and weighed the credibility of the witnesses. Based upon this record, we cannot say the WCJ was clearly wrong in finding no evidence of wilful misrepresentations in this case. The assignment of error lacks merit.

|1sIn her appellate brief, the claimant requests an award of attorney fees for work performed to answer this allegedly frivolous appeal. However, we note that claimant did not raise this issue by filing either an appeal or an answer to the appellant’s appeal. Thus, this court may not assess any frivolous appeal damages, costs or attorney fees. Hill v. Cloud, 26,391 (La.App. 2d Cir.1/25/95), 648 So.2d 1383, writ not considered, 95-0486 (La.3/17/95), 651 So.2d 260.

CONCLUSION

For the foregoing reasons, the Office of Workers’ Compensation judgment is affirmed. Costs of this appeal are assessed to the appellant, Madison Parish Service District Hospital, to the extent permitted by law.

AFFIRMED.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    Sheila THOMAS, et al., Plaintiff-Appellees v. Ryan Gregory DUNCAN, et al., Defendant-Appellants.
    No. 41,938-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 7, 2007.

      Colvin, Weaver & Cerniglia, by James H. Colvin, Jr., Fiona C. York, Pamela N. Breedlove, Shreveport, for Appellants.
    Chester Hugh Boyd, Baton Rouge, for Appellees.
    Before BROWN, STEWART and MOORE, JJ.
   MOORE, J.

11 After their minor child was struck by a car and injured, Sheila and Kenneth Thomas sued the motorist who hit the child, the owner of the car, his insurer, and the owner of the baseball field to which the child headed on foot. We previously affirmed a summary judgment in favor of defendant Shreveport Dixie Baseball, Inc. (“Dixie”). Thomas v. Duncan, 40,635 (La.App. 2 Cir. 1/25/06), 920 So.2d 969. In the instant appeal, defendants Ryan Duncan, Kent Duncan and State Farm Mutual Automobile Insurance Company (“State Farm”) appeal from a judgment finding Ryan Duncan 50% at fault for the accident. We affirm.

Facts

Around 6:30 p.m. on April 28, 2003, eight-year-old Henry Hunter Thomas was a passenger in his mother’s vehicle on his way to a baseball game held at Dixie’s ballpark on Interport Drive in Shreveport. Interport Drive is a four-lane road with a grassy median dividing the north lanes from the south lanes of travel. The ballpark is on the east side of Interport adjacent to the northbound lanes. Hunter’s mother was driving south on Interport. She stopped her vehicle in the inside southbound lane to let Hunter out to go to the ball park for his baseball game. The ballpark’s parking lot was not yet open and vehicles were parked on the median. After letting Hunter out, Ms. Thomas drove away to find a parking place and did not witness the ensuing accident.

To get to the ballpark, Hunter had to traverse the grassy median and the northbound lanes of traffic before reaching the ballpark gate. Hunter said that he got out of his mother’s vehicle and walked behind it to get to the |2median. Once there, he walked between two trucks to the curb of the inside northbound lane. There is no crosswalk at the location. Hunter stated that he looked for oncoming traffic, saw none, and then he ran across the northbound lanes of Interport. He reached the outside lane of travel and had about “a step” to go before safely reaching the east side when he was struck by a car driven by Ryan Duncan. Hunter explained that he did not see Ryan’s vehicle when he started across the road because of the presence of a small hill in the road. Hunter testified that he saw that Ryan’s arm was up near his face but did not see him using a cell phone. Ryan denied using a cell phone. Hunter said that after Ryan’s car hit him, it skidded across into the other lane. Hunter’s leg was broken in the accident, and he sustained other injuries as well.

Ryan testified that he was driving in the inside lane of Interport, not the outside lane, and was driving the speed limit of 35 miles per hour when he struck Hunter. Ryan said that he didn’t apply the brakes until after the accident occurred. The vehicle left skid marks in the vicinity of the crash, but there are no photos to show the location of the skid marks. According to the police report, in the section marked “Skidmark Data,” under the “FR” column there is the number 43.10; under the “FL” column, there is the number 35.5. The police report shows the car stopped in the inside lane but does not depict the location of the skid marks. Ryan seemed to agree at trial that his skid marks were about 43-feet long. He said that he saw the marks and that they were entirely in the inside lane. Hunter’s father, Kenneth, recalled that the skid marks were “kind of diagonal” and began in the outside | alane; likewise, Ms. Thomas said that the skid marks were “curved.”

Only Ryan Duncan testified about the presence of people at the scene at the time of the accident. He said he saw “a couple of people on the outside close by the gate where the entrance was, but there wasn’t anybody in the road.” He also said that there was no one that he could see preparing to cross the road. Likewise, Ryan said there was no traffic on his side in the southbound lanes.

After hearing the testimony of the witnesses, the court noted the length of the skid marks and concluded that Ryan Duncan was going too fast for the conditions “given the congestion and given the fact of all the youngsters out there” and that “he should have been looking for kids running out.” The court attributed no fault to Hunter but allocated one-half of the fault to Ryan Duncan and one-half of the fault to Hunter’s mother, Sheila Thomas. Ryan Duncan and State Farm now appeal from a judgment in accordance with that finding.

On appeal, the defendants assert five assignments of error. These assignments concern the trial court’s allocation of fault to Ryan, the lack of allocation of fault to Hunter, and the alleged lack of evidence for its findings that the area was crowded and that the skid marks tended to show that Ryan was driving too fast.

Discussion

The determination of liability in a negligence case usually requires proof of five separate elements: (1) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) proof that |4the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) proof that the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) proof that the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) proof of actual damages (the damages element). Boykin v. Louisiana Transit Co., Inc., 96-1932 (La.3/4/98), 707 So.2d 1225, 1230. (Citations omitted).

It is well-settled that a court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Hanna v. Roussel, 35,346 (La.App. 2 Cir. 12/5/01), 803 So.2d 261. An allocation of fault is a factual determination subject to the manifest error rule. Id. When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review; the issue for the reviewing court is not whether the trier of fact was wrong, but whether the fact-finder’s conclusions were reasonable under the evidence. Id.

Generally, duty is the obligation to conform to the standard of conduct of a reasonable man under the circumstances. Hanna, supra. Drivers are required to exercise due care to avoid colliding with pedestrians upon the road. La. R.S. 32:214; Id. Motorists are charged with the duty to see what an ordinarily prudent driver should have seen and avoid striking pedestrians | -jn the road. Likewise, a pedestrian must exercise reasonable care to avoid leaving a curb or other place of safety beside the roadway and walking into the path of a vehicle. La. R.S. 32:212(B).

Although the law does not make a driver of a vehicle the insurer of a child’s safety, it does impose a high degree of care upon the driver and a duty to anticipate that a child, possessed with limited judgment, might be unable to appreciate impending danger, is likely to be inattentive, and might suddenly place himself in a position of peril. Bogan on Behalf of Bogan v. O’Connor on Behalf of O’Connor, 97-1205 (La.App. 4 Cir. 12/17/97), 703 So.2d 1382, writ denied, 1998-0145 (La.3/20/98), 715 So.2d 1212; Torres v. U.S. Fidelity and Guar. Co., 499 So.2d 1293 (La.App. 4 Cir.1986). The operator of a motor vehicle has the constant duty to watch out for the possible negligent acts of pedestrians and avoid injuring them. A higher standard of care than that required of pedestrians is imposed upon the motorist commensurate with the hazards his conduct inflicts upon the public safety. Id. However, when a driver has employed all reasonable precaution to avoid an accident and a sudden act of a child creates an emergency rendering it impossible for the motorist to avoid striking the child, the accident is considered unavoidable and the motorist is not liable. Moore v. State Farm Mut. Auto. Ins. Co., 499 So.2d 146 (La.App. 2 Cir.1986); Keel v. Thompson, 392 So.2d 713 (La.App. 3 Cir.1980); Gladney v. Cutrer, 440 So.2d 938 (La.App. 2 Cir.1983), writ denied 443 So.2d 596 (La.1983). | fiMost importantly, each case will turn on its own particular facts. Keel v. Thompson, supra; Fusilier v. City of Houma, 421 So.2d 418 (La.App. 1 Cir.1982).

By their first and second assignments of error, appellants submit that the trial court erred as a matter of law by holding that Hunter could not be held at fault, and in not assessing any fault against Hunter. It contends that this error requires de novo review of the entire record. Appellants further argue that Hunter was at fault because he appears to be educated and answered all questions, that he knew the dangers of running into traffic, but let his excitement of the moment override his knowledge and ran into the road.

The record discloses that the trial court stated the following:

“I don’t think the child should have been placed in that situation to begin with. I don’t believe the child is old enough to impute any responsibility to the child. The child is a child, an eight year old is an eight year old, and a ball game is a ball game, and he’s heading to it when mom lets him out of the car.”

In our view, the appellants misconstrue the trial court’s remark when it states that the court found, as a matter of law, that Hunter could not be held at fault categorically. We interpret the court’s statement to mean that the child was not responsible for the accident under the circumstances of this case. The court determined that the child was placed in harm’s way by his mother, and being an eight-year old child, he was excited about the ball game and crossed the street to get to the ball park. The clear implication is that the court found that, under these circumstances, and given Hunter’s age, he could not have been expected to recognize the danger.

17The general rule is that a child may be held negligent but is not held to the same standard of care as an adult. The test is whether the particular child, considering his age, background and inherent intelligence, indulged in gross disregard of his own safety in the face of a known risk, understood and perceived the danger. Carter v. City Parish Gov’t of East Baton Rouge, 423 So.2d 1080 (La.1982); Moore, supra. In Moore, supra, a panel from this court held that a young 8-year-old, Tonya, who was struck by a truck when she suddenly turned,her bicycle in the path the truck driven by the defendant, “showed sufficient understanding, perception and intelligence to make her capable of negligence.” The court noted that she testified intelligently, had been instructed how to make hand signals, and had done a lot of riding in the area where the accident occurred but had not used the street very often.

In Bogan, swpra, a panel from the Fourth Circuit upheld a jury verdict that found no negligence on the part of a 16-year old driver who struck a 9-year-old boy who suddenly ran into the street in the path of the driver’s vehicle. The court noted that the 9-year old had limited intellectual faculties, but the defendant driver had taken precautions when he noticed activity along the sidewalk immediately before the accident occurred. The driver was not speeding. There was no crosswalk. There was no traffic light. There were no school buses running at that late afternoon time. Finally, |Rthere was no evidence to support a finding that the driver should have or could have seen the boy any sooner than he did.

By contrast, in Dupuy v. Pierce, 285 So.2d 321 (La.App. 3 Cir.1973), a Third Circuit panel held that an eight-year-old female pedestrian of ordinary intelligence was not contributorily negligent in causing her own death, where she was instructed by her mother to get the mail from the mailbox located across the highway that ran in front of their house. The girl made it safely across the highway, but she was struck and killed by an oncoming vehicle as she went back across to return home after getting the mail. The defense introduced evidence to show that the girl had been instructed at school as to the hazards ■ of crossing a street and the proper method in crossing. She was considered a smart child with an IQ of 113. However, witnesses said she never looked in the direction from which the car driven by defendant was traveling. Apparently, when she was almost to the cen-terline of the highway, she panicked, and tried to return to the mailbox side of the highway. The court concluded that the child did not willingly expose herself to the danger confronting her and was therefore not contributorily negligent. Regarding the defendant’s fault, the court noted that although -the defendant was driving her vehicle at only slightly more than half the speed limit, the visibility was good and the child was wearing bright clothes. The defendant did not see the child until it was too late. The court held that the driver was negligent in that she was inattentive, did not blow her horn or apply her brakes before the accident.

|aIn the instant case, Hunter testified that it was the first time his mother had ever let him out on the median to go to a game. He said he saw the defendant’s car when he was already halfway across the road and he was hit when he had about a step to go before reaching the other side. He also testified that he thought that he did not initially see the car coming because of a small hill. Hunter’s testimony conflicted with Ryan Duncan’s testimony regarding what lane he was in at the time of the crash.

We cannot say that the trial court erred in finding that Hunter was not at fault in causing the accident. The court was not clearly wrong in finding that Hunter could not be at fault under these circumstances.

The trial court specifically noted that it made credibility determinations in its findings, and although it did not specifically so state, we conclude that the trial court must have accepted Hunter Thomas’ testimony about the accident over Ryan Duncan’s testimony regarding the accident. In finding that Duncan had a duty to drive slower than the speed limit “given the congestion and given the fact of all the youngsters out there,” the court must have believed that Duncan should have been looking out for kids running out into the street.

By their third assignment of error, appellants contend that the trial court erred in finding that there were children present, thereby increasing the driver’s duty at the time of the accident, when the evidence established that there were no children or other pedestrians near the road. In their fourth assignment of error, appellants contend that because there were no children or pedestrians in the area, Ryan Duncan could not be at fault when Hunter Imsuddenly ran into the street from behind parked vehicles.

The first issue is whether the trial court’s statement regarding “all the youngsters out there” constituted a manifestly wrong finding of fact. Although this record does not support a finding that there were children crossing or standing around the roadway at the time of the accident, we observe that the location of the crash was adjacent to the ballpark, and the street area was congested with parked cars, including vehicles parked on the median. We think it is obvious that the presence of all the vehicles around the Dixie baseball field during baseball season creates an obvious inference that there might be children and adults coming and going as their games begin and end at any time. The presence of the parked vehicles next to the ball park on the median and roadside alone is enough to trigger a response to be cautious. The court’s finding that defendant had a duty to drive slower than the speed limit and to be more cautious is based on both the “congestion” and “all the youngsters out there.” We therefore conclude that the trial court meant that there were a lot of children in the area in general, namely the ball park area, and not a specific finding that there were children crossing the street or standing on the side of the road preparing to cross the street. Given the fact of the parking congestion along the roadway, there was an increased danger that a child might run out into the road and the defendant should have been cognizant of this danger and reacted by driving more slowly and cautiously. Accordingly, we find no error in concluding that Ryan Duncan was 50% at fault.

| n Defendants also urge that the trial court should not have placed weight on the length of the skid marks in the absence of expert testimony to show the correlation between that length and Ryan’s speed. In this case, Ryan testified that he was driving the speed limit, and the trial court apparently accepted that testimony, so there was not a genuine dispute about Ryan’s speed at the time of the crash that necessitated expert testimony to resolve. The trial court simply concluded that Ryan was driving too fast, even at the speed limit, given the congestion and nature of the area through which he was driving.

By its final assignment of error, appellants contend that the trial court erred in not assessing 100% fault against Sheila Thomas. We have previously concluded that the trial court did not err in finding that Hunter was not at fault and Ryan Duncan 50% at fault. We further conclude that the remainder of fault for this accident lies with Sheila Thomas. Just as Ryan Duncan should have taken greater precaution while driving through the parked vehicle congestion along the roadside area next to the baseball park, Sheila should not have placed her eight-year old son in harm’s way.by dropping him off at the median in such a way that required him to cross the roadway. Accordingly, the trial court did not err in assessing the remaining 50% of fault to her.

Conclusion

After review of the entire record, we cannot say that the trial court’s allocation of fault is manifestly erroneous or clearly wrong or that the court committed legal error. Hunter testified that he was not able to see Duncan’s 112car until just before the crash because of a small hill, and that testimony was not contradicted. Given his age and the circumstances, the decision not to allocate fault to the child pedestrian in this case turns upon the trial court’s decision to credit the child’s testimony as truthful, a decision that this court will not upset. This court is not the finder of fact but must review the cold record; we do not have the benefit of hearing the witnesses. Although this court might weigh the evidence differently if it were the trier of fact, we are mindful of our role as a reviewing court and do not substitute our view of the evidence for that of the trial court when that court’s view is reasonable and supported by the evidence. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

Therefore, we affirm the judgment of the district court at appellants’ costs.

AFFIRMED.

      . La. R.S. 32:214 provides:
      Notwithstanding the foregoing provisions of this Part, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a highway.

      . La. R.S. 32:212(B) provides:
      B. No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield.

      . A similar version of this test was enunciated by Judge Tate in Cormier v. Sinegal, 180 So.2d 567 (La.App. 3 Cir. 1965):
      In evaluating whether the child’s conduct constitutes contributory negligence, the child is required to exercise only the care expected of his age, intelligence, and experience under the particular circumstances presented to him; in this respect, the obviousness or not of the danger to one of the child’s years, experience, and intelligence is taken into consideration.(Citations omitted).


author: CARAWAY, J.

text:
    Katherine Gertrude WELKER, Plaintiff-Appellee v. Robert Lynn WELKER, Defendant-Appellant.
    No. 41,945-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 7, 2007.

      Dawn Hendrix Mims, for Appellant.
    Mason L. Oswalt, for Appellee.
    Before STEWART, CARAWAY and DREW, JJ.
   CARAWAY, J.

h This dispute involves the division between former spouses of the annuity benefits under a state retirement pension and the equitable rule of Hare v. Hodgins, 586 So.2d 118 (La.1991). The plaintiff was an elected official at the time of the termination of the community which occurred over twelve years before her eventual retirement. Post-community, she received substantial legislative increases in her salary as tax assessor, and she claimed a Hare adjustment reducing her former husband’s share of the retirement annuity. The trial court determined that the substantial salary increases plaintiff received during her last term in office would not be considered in the calculation of the defendant’s share of the annuity because plaintiffs post-community re-election was a meritorious individual achievement implicating an adjustment under Hare. Defendant appeals this ruling and additionally has raised during the pendency of this appeal the peremptory exception of res judicata based upon the parties’ execution of a qualified domestic relations order upon rendition of the judgment of divorce. For the following reasons, we reverse the trial court’s judgment.

Facts

After twenty-one years of marriage, Katherine and Robert Welker obtained a judgment of divorce on August 9, 1993. The community of acquets and gains ceased on September 17,1992, the date the divorce petition was filed. The divorce judgment made no partition of the community, only recognizing the parties as owners in indivisión of an undivided one-half interest in the community property. Attached to the | ¡¿judgment of divorce and made a part thereof by reference, were two qualified domestic relations orders (QDRO) which allocated the parties’ respective community retirement benefits.

Previously, in October of 1991, with the help of Robert, Katherine successfully concluded a campaign against five individuals for the office of Richland Parish Tax Assessor. Because of the untimely death of her father, the presiding tax assessor, Katherine took office on October 20, 1992, two months before her scheduled assumption of duties. Katherine had worked in the assessor’s office since 1972 and at the time of her election had been promoted to the position of Chief Deputy Tax Assessor.

During Katherine’s employment she participated in the Louisiana Assessors’ Retirement Fund. At the date of termination of the community Katherine earned $32,400 in her position as Chief Deputy Assessor. She had attended classes to obtain her certification as a Certified Louisiana Deputy Assessor by the time of her election as tax assessor. Her salary increased to $40,000 when she assumed office and then to $46,000 during 1993 due to a legislatively-enacted salary increase. Two years after her election, Katherine obtained the title of Certified Louisiana Assessor upon taking continuing education courses and received a 7% raise to $49,000. By the end of her first term in 1996, Katherine earned an annual salary of $54,179.64, due to legislative increases. Katherine was re-elected to the position of Tax Assessor in the fall of 1995 and assumed office on January | al, 1997. During her second term of office, legislative salary increases resulted in substantial raises for Katherine. By the end of her second term she earned $82,390.08 annually. Although Katherine did not seek re-election after her second term in office, she was named Chief Deputy Tax Assessor in 2001 with a yearly salary of $50,400.

In March of 2002, Katherine entered into the State Assessors’ Deferred Retirement Option Plan (hereinafter “DROP”). Although she retired in 2005, at the time of trial, she continued to work part-time for the tax assessor’s office and received $30.00 per hour and complimentary full health insurance benefits. The Louisiana Assessors’ Retirement Plan is a defined benefit plan which provided for taking an average of the three highest salary years for a calculation of monthly benefits. For Katherine, her three highest years salaries occurred in 1998, 1999 and 2000 and averaged $78,466.67.

In December of 2004, Katherine filed a Petition for Supplemental Partition in which she alleged that not all of the parties’ community assets were partitioned, particularly that portion of Katherine’s retirement plan which accrued after the dissolution of the community. In relevant part, Katherine argued that extraordinary post-marital enhancements to her salary should not be credited to the community in accordance with Hare v. Hodgins, supra. Specifically, Katherine proposed that her election as Tax LAssessor and the resultant salary increases were due to her own efforts rather than normal cost-of-living increases or salary raises that related to the length of employment. Thus, she sought a recalculation of benefits based upon her pre-September 17, 1992 salary as Chief Deputy Assessor.

Following trial, the trial court rendered judgment in favor of Katherine modifying the state retirement plan’s calculation of benefits. Instead of using the $78,466.67 average salary amount employed by the retirement plan, the court chose $54,179.64 for the salary factor for the community, which was Katherine’s salary at the end of her first term. The court ruled:

But for her re-election, it [the higher average salary] would not have happened. Re-election is not an automatic event. It has to be earned. Unlike a cost-of-living raise, it comes as the result of meritorious individual efforts or achievement.
* * *
Likewise, in the case at hand, the court finds that the Hare exception should apply in this case, and that the base for calculating Robert’s interest in Kathy’s retirement benefit should be the $54,179.64 she was earning in 1996, rather than the higher $78,466.67 three-year average she achieved during her second term.

Robert has appealed the trial court’s judgment. While the appeal was pending, Robert filed with this court the peremptory exception of res judicata, claiming that the QDRO rendered in 1992 bars the Hare adjustment to his interest in Katherine’s pension.

Community Pension Partition Law

Both issues in this appeal — the peremptory exception of res judicata and the substantive ruling by the trial court allocating Katherine’s pension benefits — will turn on the Louisiana Supreme Court’s rulings in Sims v. Sims, 358 So.2d 919 (La.1978), and Hare v. Hodgins, supra. Significantly, |slike the present case, both decisions involved an employee spouse’s defined benefits pension. At the termination of the community in Sims and Hare, the employee spouses were not retired so that neither enjoyed a fully matured pension. The court gave a later summary of its Sims and Hare rulings in Blanchard v. Blanchard, 97-2305 (La.1/20/99), 731 So.2d 175, 179-180, as follows:

This Court has recognized two methods of apportioning pension rights. In Sims v. Sims, 358 So.2d 919 (La.1978), we held that the proper method of apportioning the particular unmatured defined benefit plan at issue was to apply the “reserved jurisdiction” or “fixed percentage” methodology, which defers benefit distribution to the non-employee spouse until commencement of benefit distribution to the employee spouse. Use of the “fixed percentage” method does not require valuation of the pension. Disposition of pension rights under this method involves recognition of the right of the non-employee spouse to a judgment recognizing his interest in proceeds from a retirement plan, “if, as, and when” they become payable, usually in the form of a Qualified Domestic Relations .Order (“QDRO”). Id. at 922; [citations omitted]. Application of the fixed percentage method is typically called for when the present value of the pension cannot be accurately ascertained. Hare, supra, 586 So.2d at 125. Plaintiff, in requesting that defendant be required to share in the pension rights “if, as, and when” she does by virtue of a QDRO, urges the application of Sims to allocate the pension at issue.
Subsequent to our holding in Sims, however, we recognized in Hare v. Hodgins, supra, that the fixed percentage method of distribution was not the exclusive method by which unmatured pension rights could be allocated upon divorce. Hare, 586 So.2d at 126 (acknowledging that, to the extent Sims could be interpreted to mean that pension rights could not be valued prior to maturity, such a conclusion was error). In Hare, we commented on the interplay between LSA-RS 9:2801 and pension jurisprudence, stating that LSA-RS 9:2801, enacted after our decision m Sims, affords the trial court much | (¡flexibility and implies that the “goals of equality and equity require that no one method should be used to the exclusion of other apportionment techniques.” 586 So.2d at 127.
Consequently, in Hare, we cited with approval the use in certain cases of the “present cash value” methodology, in which the court calculates the present cash value of the community assets, including pension rights, and awards to the non-employee spouse his rightful share in a lump sum or in the form of equivalent property. Id. at 124-25. Such a disposition of the pension rights effects an immediate transfer to the non-employee spouse his equivalent share of the pension. In an effort to aid trial courts in determining which of these two methods would result in the more equitable distribution of the pension rights, Hare cited with approval the decisions of courts in other jurisdictions which prefer application of the present cash value method if the pension rights “can be valued accurately and if the marital estate includes sufficient equivalent property to satisfy the claim of the non-employee spouse without undue hardship to the employee spouse.” Id. at 125 (emphasis added). The present cash value method of apportionment was undertaken by the trial court in this case and is the method which defendant urges is appropriate in light of our decision in Hare.

The Hare ruling also opened the door for consideration of significant accomplishments by the employee spouse after termination of the community which serve to greatly enhance the retirement benefit. The court stated:

The community should not be given credit when a substantial post-community increase to a retirement fund is due to a singular personal factor such as individual effort, education or achievement resulting in a merit raise or an extraordinary promotion or series of promotions. For example, such an increase in benefits might occur where the employee spouse attains a significantly higher-paying position while remaining within the coverage of the same pension plan, either through earning a post-community degree, or transfer within the company to an unrelated area of service.

|7586 So.2d at 128. The legal basis for this Hare adjustment of the straight-line proportionate community sharing of a defined benefit annuity was expressed in Hare as follows:

The general rules for the partition of community property, however, do not address all of the problematic ramifications of classifying, valuating and distributing each spouse’s interest in pension benefits which have been earned by one spouse partly during the marriage and partly before or after. In such cases, the pension benefits are composed of the separate property interest of the employee spouse in addition to the community interest. Furthermore, there is no custom from which rules can be derived for each particular situation. Accordingly, in the present case and others a court is bound to proceed and decide equitably to some extent, making resort to justice, reason and prevailing usages. La. Civ.Code art. 4.

586 So.2d at 123.

Under the present ruling of the trial court, Robert’s community fraction of Katherine’s state retirement pension remained unchanged, being one-half of the time period of the community (20-1/2 years) divided by Katherine’s total creditable service years of employment (approximately 31 years). The trial court made a Hare adjustment to the average salary-component of the state retirement plan. The salary base otherwise employed in the state’s computation of the retirement annuity was lowered for the determination of Robert’s share of the annuity benefits.

Although Hare appears to allow for the possibility of the present cash value method of valuation of unmatured defined benefit plans in the partition of the community, the contingencies affecting valuation of such plans prior to their maturity remain problematic. The Sims court’s finding that the unmatured defined benefits plan was contingent, “non-merchantable,” and “inchoate” before the accrual of future events in the | swork-life of the employee was not discredited by Hare. Recognizing this situation for the present pension in 1992, the parties chose to merely declare Robert’s interest in Katherine’s pension benefits, “if, as, and when” benefits became payable.

Discussion

I.

The peremptory exception of res judica-ta, first filed in this court, raises the question of the effect of the qualified domestic relations order attached to the judgment of divorce in 1992. The QDRO is the product of the federal law regulating pension plans and the taxability of retirement plan distributions. 29 U.S.C. § 1056 (ERISA) and 26 U.S.C. § 414 (I.R.C.); Boggs v. Boggs, 520 U.S. 833, 117 S.Ct. 1754, 138 L.Ed.2d 45 (1997) (“A QDRO is a limited exception to the pension plan anti-alienation provision and allows courts to recognize a nonparticipant spouse’s community property interest in pension plans under specific circumstances.”) The order involves a state court directive to an ERISA plan administrator. Dial v. NFL Player Supplemental Disability Plan, 174 F.3d 606 (5th Cir.1999); Beskin, supra.

The 1992 QDRO involving Katherine’s state pension was signed by Katherine and Robert and the trial court. Significantly, the order did not stem from a pending pleading before the trial court. There was also no pending action for partition of the community, as the divorce judgment merely acknowledged that the parties were to remain as co-owners of the community subsequent to the divorce. We note that the 2004 pleading by |9Katherine raising this claim under Hare identifies a written compromise and amicable settlement of the community. Whether the 1992 QDROs were executed by the parties in conjunction with that settlement is unclear. Robert does not assert an overall compromise partition as the basis for res judicata, but merely raises the signed QDRO as the authority for the thing adjudged.

The QDRO designates Robert as the alternate payee of Katherine’s retirement plan, assigning to him benefits of her plan. It identifies the 20-1/2-year period of the parties’ community property regime. The QDRO sets forth the Sims formula for the so-called “fixed percentage” method for the ultimate distribution of Katherine’s defined benefit annuity. Yet, Katherine’s “total credible service” period is listed “still not determined” as in Sims and the amount of the annuity was also undeter-minable. While the QDRO did provide for Robert’s share of survivor benefits in the event of Katherine’s death before her retirement, it did not address specifically the possibility of a Hare-type increase in the retirement annuity benefit due to a singular personal factor from Katherine’s accomplishments post-community. Finally, we note that in certain language the QDRO allows instances for adjustment for events that might call for the recalculation of benefits or through court modification of the QDRO’s effect.

The authority of the thing adjudged (res judicata) takes place only with respect to what was the object of the judgment. Page v. City of Winnfield, 40,-747 (La.App. 2d Cir.3/10/06), 925 So.2d 683. A valid compromise can form the basis of a plea of res judicata because a 11(1compromise has the legal efficacy of a judgment. Cason v. Cason, 38,974 (La.App. 2d Cir.10/27/04), 886 So.2d 628; La. C.C. art. 3078. A consent judgment is a determination of the rights of the parties and acquires the authority of the thing adjudged. Thibodeaux v. Thibodeaux, 511 So.2d 102 (La.App. 3d Cir.1987) and cases cited therein.

The doctrine of res judicata is strictly construed. Any doubt regarding compliance with its requirements is to be resolved in favor of maintaining the plaintiffs action. Thurston v. Thurston, 31,895 (La.App. 2d Cir.8/20/99), 740 So.2d 268. The party urging the exception has the burden of proving each essential element by a preponderance of the evidence. Id.

La. C.C.P. art. 2163 affords a party the opportunity to raise peremptory exceptions, such as res judicata, for the first time in the appellate court. However, the article specifically states that for such an exception to be considered “proof of the ground of the exception” must appear of record. Id. The article does allow for remand of the case to take evidence on the exception if it is based on prescription. Id. Article 2163 is clear and unambiguous: if grounds of the exception of res judicata do not appear in the record, the exception cannot be considered for the first time in the appellate court and must be denied. Smith v. State, Dept. of Transp. & Development, 04-1317 (La.3/11/05), 899 So.2d 516.

Exceptions to the general rule of res judicata are found in La. R.S. 13:4232 which reads as follows:

A. A judgment does not bar another action by the plaintiff:

| n(l) When exceptional circumstances justify relief from the res judicata effect of the judgment;
(2) When the judgment dismissed the first action without prejudice; or,
(3) When the judgment reserved the right of the plaintiff to bring another action.
B. In an action for divorce under Civil Code Article 102 or 103, in an action for determination of incidental matters under Civil Code Article 105, in an action for contributions to a spouse’s education or training under Civil Code Article 121, and in an action for partition of community property and settlement of claims between spouses under R.S. 9:2801, the judgment has the effect of res judicata only as to causes of action actually adjudicated.

From our review of the process by which the parties obtained the QDRO, which included no pleadings for the order and no related partition of the community, we view the parties’ action as the result of a compromise. In particular, by choosing the Sims or fixed percentage method of dealing with Katherine’s retirement plan, the parties agreed by compromise that the present cash value method of valuation of the unmatured pension benefits would not be claimed by either party in any subsequent partition action. Significantly, the parties’ choice for the fixed percentage valuation of Katherine’s pension is also referred to as the “reserved jurisdiction” methodology. Blanchard, supra. Under the “reserved jurisdiction method,” the court determines the formula for division at the time of the decree but delays the actual division until payments are received, retaining jurisdiction to award the appropriate percentage of each pension payment if, as and when, it is paid out. Beskin, supra at 681. Citing Hare, this court in Withers v. Withers, 27,348 (La.App. 2d Cir.9/27/95), 661 So.2d 529, 533, observed that “[w]hen the fixed percentage method is used, the formula for dividing the retirement benefits may be determined before the benefits |12become payable, notwithstanding that the retirement fund is not actually divided or partitioned until benefits are paid upon the employee spouse’s retirement.” [Emphasis added.]

The parties’ apparent compromise which led to their execution of the QDROs should be considered in view of two recent supreme court cases where the partitions of the communities did not definitely address pension rights. Robinson v. Robinson, 99-3097 (La.1/17/01), 778 So.2d 1105; Jennings v. Turner, 01-0631 (La.11/28/01), 803 So.2d 963. In both cases the partitions contained omnibus clauses for the general divestiture of all community assets and the waiver of further accounting relative to any community property not specifically listed in the partitions. Nevertheless, the court refused to allow the omnibus clauses to resolve the unaddressed pension rights. Central to the rulings was the following:

When the agreement does not expressly address the employee spouse’s pension, the issue of whether the agreement divests the non-employee spouse of any community property rights in the pension depends on the intent of the parties.

Robinson, supra at 1121.

From a similar perspective, we do not find that the parties’ recognitive agreement in the form of the QDRO evidences on its face their intent to settle and preclude any future event that might allow for a Hare adjustment for their sharing of Katherine’s retirement benefits. A Hare adjustment to the “annuity,” which was undeterminately listed in the QDRO, remained a possibility affecting the ultimate amount of the annuity in the same manner that future salary increases and the date of retirement or death would serve to determine the actual annuity payments to the parties. |iaWith the burden of proof for the exception of res judicata on Robert, we find that the exception of res judicata was not proven.

II.

Regarding application of Hare v. Hodgins to the facts of this matter, Robert argues that Katherine’s salary increases were solely attributable to legislative acts and not personal effort or achievement. Stated somewhat conversely, Robert also argues that even if Katherine’s re-election to office might be considered a “personal achievement,” that achievement was unrelated to the salary increases.

Hare established a three-part test for the partitioning court to apply in determining whether or not a substantial post-community increase is due purely to personal merit. First, the increment must represent a fairly substantial increase in the employee spouse’s post-community earnings. Second, the increment must not be due to non-personal factors, such as cost of living raises, etc. Third, the increment must be attributable to the employee spouse’s meritorious individual efforts or achievements. Bullock v. Owens, 35,078 (La.App. 2d Cir.9/26/01), 796 So.2d 170.

The facts regarding Katherine’s salary as the tax assessor show that in her first term her annual salary increased from $40,000 to $54,179.64, or an increase of 35%. We do not find that the increase attributable to her obtaining the Certified Louisiana Assessor status would be an extraordinary accomplishment under Hare, and neither did the trial court. In her second term, the legislature sharply raised the salaries of tax assessors to $82,390.08. Katherine’s three highest years of salary, which are utilized in | i4the State’s annuity formula, occurred during her second (and last) term and averaged $78,466.67. For retirement purposes, the legislative enhancement of her salary during her second term therefore amounted to a 45% increase for that term. It was this salary increase which the trial court treated as an extraordinary post-community enhancement.

Reviewing these numbers in its opinion, the trial court did not award the Hare adjustment based upon these legislative increases. The opinion recognizes that regardless of the size of the increases (which were more than mere cost of living raises), they were “across-the-board raises given to all Tax Assessors.” We agree with the assessment that the legislature’s action is a non-personal factor that does not warrant a Hare adjustment.

The focus of the trial court’s ruling was on Katherine’s re-election as tax assessor in 1996. The evidence revealed that she faced opposition and was re-elected. Nevertheless, what was also expressly recognized by the trial court’s ruling was that Katherine had first obtained the office of tax assessor in an election that occurred during the community. That event and the 20-1/2-years of service in the tax assessor’s office as a deputy were the foundational community work accomplishments that earned Katherine the important elective office obtainment before the community ever ended. In view of those considerable community-related accomplishments, we find that Katherine’s post-community re-election did not add significantly to her | ir,work-life status and represent the degree of extraordinary accomplishment required for the equitable remedy afforded under Hare.

Conclusion

Accordingly, we reverse the judgment of the trial court and dismiss Katherine’s claim. Costs are assessed to appellee.

REVERSED.

      . Robert began work at General Motors in 1976 and contributed to the GM retirement system during his thirty years of work with the company. He testified that he was seeking to retire from the company as of March 2006.

      . DROP allows a state employee to change from an active member to a retiree for up to three years, even though she continues to work at her regular job. During her participation in DROP, the employee accumulates money in an individual account based on what she would have received as a monthly retirement benefit and continues to earn his regular salary. She can withdraw the money from the DROP account after she ends state employment, either as a lump sum or a series of payments spread out over time.

      . A defined benefit plan provides a participant employee with definitely determinable benefits upon attaining retirement age. Elizabeth Alford Beskin, Retirement Equity Inaction: Division of Pension Benefits Upon Divorce in Louisiana, 48 La.L.Rev. 677 (1988). For the governmental pensions in Sims and the present case, the annuity is not directly tied to employee contributions but is based on a percentage of average pay during employment.

      . The details of Katherine’s two elections were that, in the first, she faced six opponents and was in a runoff, while in the second, she had one challenger and won with 60% of the vote. We do not find these details however relevant to our ruling.


author: BROWN, Chief Judge. MOORE, J.,

text:
    Leila WELLS, Plaintiff-Applicant v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, et al., Defendants-Respondents.
    No. 41,836-CW.
    Court of Appeal of Louisiana, Second Circuit.
    March 7, 2007.

      Anthony J. Bruscato, Monroe, Raymond L. Cannon, Tallulah, Catherine Leary, New Orleans, for Applicant.
    Laurel I. White, Assistant Attorney General, for Respondent, State of Louisiana, DPSC.
    Usry, Weeks & Matthews, by Freeman R. Matthews, Craig E. Frosch, Tim R. Richardson, New Orleans, for Respondents, Madison Parish Sheriff, Madison Parish Law Enforcement District, and Charles R. Harmon, Jr.
    David E. Verlander, III, Monroe, Counsel for Respondents, LSU Health Sciences Center-Shreveport and E.A. Conway Medical Center.
    Before BROWN, DREW, and MOORE, JJ.
   BROWN, Chief Judge.

|! Plaintiff, Leila Wells, filed a -writ application with this court following the trial court’s denial of her motion to compel the Madison Parish Sheriffs Office (“MPSO”) to answer certain interrogatories. This court granted certiorari, obtained the entire record from the trial court, and had the parties address the issue fully in brief. For the reasons set forth below, we find no error in the trial court’s ruling and therefore, the writ is denied.

Facts and Procedural History

This is a long-running civil action by plaintiff, Leila Wells, the mother of now-deceased Kerry Scarborough, against the Louisiana Department of Public Safety and Corrections (“DPS”)/Department of Corrections (“DOC”), the MPSO, and E.A. Conway Hospital in Monroe. The issue before this court is the scope of the discovery to be allowed Mrs. Wells-specifieally, whether the trial court erred by denying plaintiffs motion to compel the MPSO to answer certain interrogatories.

In 1993, Kerry Scarborough was sentenced to seven years imprisonment at hard labor with the DOC on a variety of charges. The DOC elected to house Scarborough with the MPSO at the Madison Parish Detention Center from August 1993 to January 1995. The detention center is run by the MPSO.

While at the detention center, Scarborough developed serious health problems, including tuberculosis and cancer, that required diagnosis and treatment at E.A. Conway. Mrs. Wells has alleged that defendants were negligent in failing to ensure that her son got adequate medical care and ^treatment for these conditions and that this failure allowed both conditions to worsen, resulting ultimately in his death.

Mrs. Wells sued the DOC, MPSO and E.A. Conway in March 1996. The minutes of record and index indicate that while plaintiff was busy with discovery efforts, defendants were filing various motions and exceptions, attempting to extricate themselves from' this matter. Specifically, the MPSO filed a motion for summary judgment on March 31, 2004, urging that the MPSO satisfied its duty to provide reasonable médical care to Kerry Scarborough. In response, Mrs. Wells served a variety of discovery requests upon the MPSO asking for, inter alia, the sheriffs “understanding” of the relationship between the DOC and the MPSO. Thereafter, the DOC filed a motion for summary judgment on December 8, 2004, asserting that the MPSO, not the DOC, was responsible for Scarborough’s medical care. This motion was denied on March 28, 2005.

The sheriffs responses to a number of plaintiffs interrogatories, which stated that the sheriff was not an attorney and referred plaintiff to the relevant statutes, did not satisfy plaintiff, so she filed several motions to compel, which the sheriff opposed. A hearing on the motion(s) to compel was held on August 24, 2006, and the trial court found that plaintiffs discovery requests sought a legal opinion from the sheriff, something he |swas not required to provide. This ruling is the subject of plaintiffs writ application.

Discussion

Louisiana Code of Civil Procedure article 1422 provides in part that:

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved' in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

The trial court has broad discretion in regulating pretrial discovery, and its decision will not be disturbed on appeal absent a clear abuse of that discretion. Moak v. Illinois Central Railroad Company, 93-0783 (La.01/14/94), 631 So.2d 401.

Louisiana Revised Statute 15:824, which provides for overcrowding contracts between the DPS and local sheriffs, states in part:

(B)(1)(a) In the event any individual has been committed to the department for confinement ... when the individual is not institutionalized in a state penal or corrections institution because of lack of facilities under the control of the department ... which resulted or has resulted in the individual being confined in a parish jail or institution after final sentence ... the department shall pay to each parish sheriff, or to the governing authority of those parishes in which the governing authority operates the parish jail, for keeping and feeding the individual in the parish jail the sum of twenty-two dollars and thirty-nine cents per day from date of sentencing until the individual is confined in a penal or correctional institution under the supervision of the department.

[4In addition to statutory provisions which govern the relationship between the DOC and the sheriff vis-a-vis DOC prisoners housed in a parish facility, the DOC and sheriff may enter into a contract which expressly addresses the responsibilities and duties of each entity regarding, among other things, the medical care to be provided to DOC prisoners. See Jackson v. State, Department of Corrections, 00-2882 (La.05/15/01), 785 So.2d 803. In the instant case, no contract between DOC and MPSO has been produced through discovery or as evidentiary support for DOC’s contention that, by housing Scarborough with the MPSO, it was no longer responsible for Scarborough’s medical care. However, as noted by the court in Jackson, supra, the DOC is not necessarily immune from a suit for damages if treatment is not timely provided by the sheriff.

We have reviewed the interrogatories and requests for admission that plaintiffs want answered by the sheriff. In a nutshell, plaintiffs are seeking the sheriffs “understanding” of: (1) the legal relationship between the DOC and the MPSO; (2) whether Scarborough was under the custody and control of the DOC and/or the MPSO while housed in the detention center; (3) whether the sheriff was responsible for furnishing necessary medical care to Scarborough while he was in the detention center; and (4) whether the DOC had a duty to provide necessary medical care should the sheriff be |sunable to provide necessary medical care since Scarborough was a DOC prisoner.

The issue of the existence and extent of the DOC’s and/or the MPSO’s responsibility or duty to provide medical care to Kerry Scarborough is clearly a question of law. See Harper v. Goodwin, 35,584 (La.App. 2d Cir.05/17/06), 930 So.2d 1160. The questions that the plaintiff have posed to the sheriff under the guise of discovering his “understanding” are to be answered not by the sheriff, but by the trial court ultimately when it makes its findings of law. Plaintiffs requests do not seek the sheriffs opinion as to facts upon which his claims or defenses are based, but call for legal conclusions and/or interpretations based upon statutory or contractual law, i.e., La. R.S. 15:824 and La. R.S. 15:703-15:706, which govern the legal relationship between and responsibilities of the custodians of persons in the custody of the DOC but who must be held in parish facilities until they can be transferred to a DOC facility, and are therefore inappropriate. The trial court did not err in denying plaintiffs motion to compel. For this reason, plaintiffs writ is denied and this matter is remanded to the trial court for further proceedings.

WRIT DENIED; REMANDED.

MOORE, J., dissents with reasons.

MOORE, J.,

dissents.

|TI respectfully dissent. This court granted a writ to address the plaintiffs contention that her discovery requests, seeking the sheriffs “understanding” of his agreement with the Department of Corrections, were permissible as contention interrogatories. Now a majority of the panel has dismissed the plaintiffs application without discussing or even acknowledging this novel and important issue.

The Code of Civil Procedure provides for “discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action[J” La. C.C.P. art. 1422. One appellate court has already recognized, “The fact that interrogatories may to a degree call for an expression of opinion or judgment * * * does not necessarily render them objectionable.” Gaudet v. Lawes, 166 So.2d 337 (La.App. 1 Cir.1964). Notably, art. 1422 mirrors FRCP 26, which was widely understood to allow contention interrogatories even prior to the adoption of FRCP 33(c). See Moore’s Federal Practice, Civil § 33.02 (Matthew Bender & Co., 2006). I would grant this writ and recognize the validity of contention interrogatories under art. 1422.

Even under the district court’s narrow view of discovery, I would find these interrogatories and requests for admission proper. They seek not so much a legal conclusion as the sheriffs version of the oral agreement that must have existed before he would accept Scarborough in the Madison Parish Jail. Any agreement between the sheriff and the Department of Corrections is obviously relevant and would be admissible at trial.

| gFor these reasons I would grant the writ and remand the case with an order for the sheriff to respond, in full, to each of the contested discovery requests, without framing the responses as legal conclusions.

      . Scarborough was moved out of the detention center in January 1995 and into another facility where he received medical treatment, but he died in March 1995 from the tuberculosis and cancer.

      . Plaintiff took the position that she was unable to effectively oppose the MPSO’s motion for summary judgment without the sheriff's complete answers to the interrogatories propounded.

      .In this judgment, the trial court gave plaintiff 15 days from this court’s ruling on her writ application to file any additional memo-randa opposing the MPSO’s motion for summary judgment, and the sheriff was given 10 days thereafter.

      . As noted above, the motion for summary judgment filed by the DOC was denied by the trial court.

      . Prison authorities have an obligation or duty to provide reasonable medical treatment and care to inmates. Harper v. Goodwin, 41,836 (La.App. 2d Cir.05/17/06), 930 So.2d 1160.