author: WELCH, J. McDONALD, J. McCLENDON, J.,

text:
    Joann LEBOEUF and Evans J. Leboeuf, Sr. v. WAL-MART STORES, INC. and Claims Management, Inc.
    No. 2004 CA 2260.
    Court of Appeal of Louisiana, First Circuit.
    April 5, 2006.

      Aub A. Ward, Baton Rouge, for Plaintiffs — Appellants Joann Leboeuf and Evans J. Leboeuf, Sr.
    F. Scott Kaiser, Annette N. Peltier, Baton Rouge, for Defendants — Appellees Wal-Mart Stores, Inc. and Claims Management, Inc.

      Before: WHIPPLE, GAIDRY, MCDONALD, McClendon, and WELCH, JJ.
   WELCH, J.

|2This is an appeal by the plaintiffs, Joann LeBoeuf and Evans J. LeBoeuf, Sr., from a trial court judgment sustaining a peremptory exception raising the .objection of no cause of action. For reasons that follow, we affirm in part and reverse in part, and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

The plaintiff, Joann LeBoeuf, filed this tort action alleging that, while employed by the defendant, Wal-Mart Stores, Inc., and working at the Wal-Mart store in Mathews, Louisiana, on July 22, 2003, she suffered injuries, including the rupture of her Achilles tendon. Claims Management, Inc. (CMI) was also named defendant as the duly authorized workers’ compensation administrator for Wal-Mart. Mrs. Le-Boeufs husband, Evans LeBoeuf, joined as a plaintiff asserting the loss of society and assistance of his wife. The plaintiffs alleged that the defendants’ failure and refusal to authorize a medically necessary MRI for an excessive period of time, resulted in a worsening of Mrs. LeBoeufs injury to such a degree that the earlier recommended surgical intervention was no longer a viable option. The plaintiffs further alleged that they sustained damages, which were a direct result of the negligence and wanton disregard of the defendants, thus rendering the defendants liable for said damages.

The defendants responded to the plaintiffs’ suit by filing a peremptory exception raising the objection of no cause of action, wherein they contended that Mrs. Le-Boeufs exclusive remedy was under the Louisiana Workers’ Compensation Act (“the Act”), and that as Mrs. LeBoeufs employer, they were immune from a tort action. See La. R.S. 23:1032. Following a hearing on the matter, the trial court rendered judgment sustaining the peremptory exception | ¡¡raising the objection of no cause of action. A written judgment to this effect was signed on May 4, 2004, which judgment also dismissed the plaintiffs’ suit with prejudice. It is from this judgment that the plaintiffs now appeal.

ASSIGNMENT OF ERRORS

On appeal, the plaintiffs contend: (1) that the trial court erred in determining that the plaintiffs’ petition did not state a cause of action; (2) that the trial court erred in finding that the plaintiffs’ exclusive remedy was under the Louisiana Workers’ Compensation Act; and (3) that the trial court erred in failing to allow the plaintiffs the opportunity to amend their petition to state a cause of action in accordance with La. C.C.P. art. 934.

LAW AND DISCUSSION

No Cause of Action

The function of the peremptory exception raising the objection of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La.1993); Rebardi v. Crewboats, Inc., 2004-0641 (La.App. 1st Cir.2/11/05), 906 So.2d 455, 457. Generally, no evidence may be introduced to support or controvert the exception raising the objection of no cause of action. La. C.C.P. art. 931. In addition, all facts pled in the petition must be accepted as true, and any doubts are resolved in favor of the sufficiency of the petition to state a cause of action. Accordingly, the only issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Thus, if a petition alleges sufficient facts to establish a case cognizable in law, the exception raising the objection of no cause of action must fail. Livaccari v. Alden Engineering, Inc., 2000-0856 (La.App. 1st Cir.12/1/00), 808 So.2d 383, 388; Rebardi, 906 So.2d at 457.

Appellate courts review a judgment sustaining a peremptory exception raising the objection of no cause of action rife novo. Rebardi, 906 So.2d at 457. This is because the exception raises a question of law, and the trial court’s decision is based only on the sufficiency of the petition. B & C Elec., Inc. v. East Baton Rouge Parish School Bd., 2002-1578 (La.App. 1st Cir.5/9/03), 849 So.2d 616, 619. When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed. La. C.C.P. art. 934. This applies to any objection raised by the peremptory exception, including no cause of action. Brister v. GEICO Ins., 2001-0179 (La.App. 1st Cir.3/28/02), 813 So.2d 614, 616-17.

The Louisiana Workers’ Compensation Act

The Act provides that an employer is liable for compensation benefits and necessary medical expenses to an employee who suffers personal injury in a work-related accident. La. R.S. 23:1031. Louisiana Revised Statute 23:1032 provides that, except for intentional acts, workers’ compensation is the exclusive remedy for such injuries. The Act also contains a provision for penalties and attorney fees as an exclusive remedy for an employer’s misconduct in administering compensation claims, including the failure to timely authorize and pay for medically necessary treatment. La. R.S. 23:1201.

In this tort suit, the defendants, through their peremptory exception raising the objection of no cause of action, have asserted the exclusivity provisions of theJ^Act. Citing Weber v. State, 93-0062 (La.4/11/94), 635 So.2d 188, and Kelly v. CNA Ins. Co., 98-0454 (La.3/12/99), 729 So.2d 1033, the defendants specifically aver that controlling jurisprudence bars a tort action against an employer where an employee alleges a delay in medical treatment for a non-life-threatening injury.

In Weber, the Louisiana Supreme Court created a “narrow exception” to the Act, holding that an employee may have a cause of action in tort against his employer where the intentional denial of medical care results in the death of the employee. Therein, the court stated:

We hold that the State’s alleged conduct in intentionally and arbitrarily denying necessary medical expenses, if proved, may result in liability for damages beyond the remedies provided in the Workers’ Compensation Act, when the conduct and the resulting injury does not occur in the course of employment and only marginally arises out of employment, and when the employer knew to a substantial certainty the denial would cause death that would not otherwise have occurred. This is a narrow exception to the general rule that penalties and attorney’s fees are the exclusive remedy for the employer’s misconduct in handling the administration of compensation claims. The exception applies only when there is intentional conduct and when the employer acts arbitrarily despite knowledge that death is substantially certain to follow.

Weber, 635 So.2d at 193-94. (Footnote omitted). Justice Kimball concurred in the result stating that in her view, the Act itself creates the applicable exception by the “intentional act” exclusion found in La. R.S. 23:1032. In her concurring opinion, she stated that where an act is arbitrary and capricious and intentional, such as the behavior by the State in Weber, then the “intentional act” exclusion applies and the exclusive remedy rule is inapplicable. Weber, 635 So.2d at 194-95 (concurring opinion).

The plaintiffs contend the exception enunciated in Weber is not limited to Leases where the employee dies, but rather, they contend that only a “significant worsening” must be shown. The plaintiffs argument in this regard is premised on the significant language found in Weber at footnote nine, which provides as follows:

We reserve for another day the decision on whether the exception would apply if the employer arbitrarily denies payment of necessary medical expenses despite knowledge that a significant worsening of the employee’s condition is substantially certain to follow the denial.

Weber, 635 So.2d at 194 n. 9.

Defendants counter that five years later, the Louisiana Supreme Court in Kelly revisited the issue in a non-death case and affirmed the dismissal of an employee’s tort action holding that the employee was limited to recovery under the Act. The court in Kelly stated:

Comparing the facts of Weber to those of the case sub judice, we find that the Workers’ Compensation Act provides the exclusive remedy to plaintiff for the injuries she incurred. Carpal tunnel syndrome, by its very nature, is not life threatening. The employer’s arbitrary denial or delay of medical treatment would not result in death or a significant worsening of the employee’s condition. Although the court of appeal remanded the case to allow plaintiff the opportunity to amend her pleadings, there is no way that she can amend the petition to state a cause of action. The exclusivity provision of the Workers’ Compensation Act is clear: the rights and remedies provided under the Act “shall be exclusive of all other rights, remedies, and claims for damages....” La.Rev.Stat. Ann. 23:1032(A)(1)(b). In Weber, we created an exception, in part, because the decedent died before he could seek judicial intervention for the defendant’s refusal to pay for his medical treatment. OWC’s new procedural structure adequately provides for immediate recourse for an employer’s refusal to pay medical benefits. Ms. Kelly has availed herself of such recourse, and she has sought and received a remedy in workers’ compensation. In addition to compensation benefits, she has been awarded penalties and attorney’s fees provided for under the Act.
The “narrow exception” arrived at in Weber, resulted from intentional conduct on the part of an employer for refusing to pay for medical treatment, knowing that without such treatment, the decedent’s condition was terminal. Unlike the decedent in Weber, Ms. Kelly’s physical injuries were far from life-threatening. Under |7the facts of this case, the trial court properly granted the exception of no cause of action. Accordingly, we reverse the court of appeal’s judgment and reinstate the decision rendered by the trial court, granting the exception of no cause of action and dismissing plaintiffs demands with prejudice.

Kelly, 729 So.2d at 1038-39.

According to the defendants, the court in Kelly refused to extend the exception beyond a life-threatening refusal to provide medical care. Plaintiffs submit, however, that the Kelly case does not foreclose a cause of action based on a less-than-life-threatening injury and assert that a fact-specific inquiry is necessary. Plaintiffs recognize that the court in Kelly stated that “[t]he employer’s arbitrary denial or delay of medical treatment would not result in death or a significant worsening of the employee’s condition.” Kelly, 729 So.2d at 1038-39. Nevertheless, plaintiffs contend that the use of this language reveals the intent of the supreme court to keep the Weber remedy available to workers’ compensation claimants who have been arbitrarily and capriciously denied medical benefits and who experience a significant worsening of their condition because of the denial. In support thereof, plaintiffs refer to Justice Lemmon’s concurring opinion in Kelly, wherein he stated:

The majority fails to decide the issue that we granted certiorari to decide— whether an employee can ever, under any circumstances, state a cause of action in tort against his or her employer whose intentional and arbitrary denial of medical benefits causes the employee’s disabling condition to undergo foreseeable disastrous worsening to a level something less than death. The majority opinion merely repeats the decision of the court of appeal that this plaintiff did not state a cause of action in her original petition. For largely unstated reasons, the majority then reverses the judgment of the court of appeal on the [ Rsole point of difference — whether plaintiff should have been allowed the opportunity to amend her petition.

Kelly, 729 So.2d at 1039 (concurring opinion).

We recognize that the question of whether Kelly forecloses a cause of action against an employer who knows to a substantial certainty that his intentional and/or arbitrary denial or delay of medical treatment or to pay necessary medical expenses will result in a significant worsening of the employee’s condition remains unanswered. However, we find that we have not been presented with such a situation in this case based on the facts alleged in the plaintiffs’ petition.

The plaintiffs allege the following in their petition:

4.
On or about July 22, 2003, petitioner Joann LeBoeuf suffered injury during the course and scope of her employment with Wal-Mart Stores, Inc.
5.
The petitioner’s injury included a rupture of her left Achilles Tendon and such other injury as may be proven at trial. The rupture of the Achilles Tendon required surgery.
6.
The defendants initially undertook responsibility for medical care of the petitioner[,] pursuant to the Louisiana Workers Compensation Act and/or other applicable law.
7.
It became necessary in the opinion of petitioner’s physicians that she undergo a[n] MRI of her leg. The test was both medically indicated and necessary to determine the extent of the injury and the medical care needed to adequately treat the petitioner.
8.
Despite having knowledge of the necessity of a[n] MRI, [defendants nevertheless delayed, failed, and/or refused to authorize the MRI for an excessive period of time.
9.
Petitioner was otherwise unable to obtain or pay for an MRI on her own resources.
_h.io.
As a result of the defendants’ delay and by the time a[n] MRI was conducted, it was too late for surgery to be of any medical benefit to the petitioner. Accordingly, petitioner has suffered, and will continue to suffer, damages including permanent and irreparable injury to her Achilles Tendon, permanent disability, mental and physical pain and suffering, loss of income and wage earning ability, and other damages to be shown at trial.
11.
The aforementioned damages were suffered by petitioner as a direct result of the negligence and/or wanton disregard of the defendants in the following non-exclusive particulars:
(A) Failure, refusal and delay of providing petitioner with needed medical testing;
(B) Failure, refusal and delay of complying with a duty of care undertaken by defendants in favor of petitioner;
(C) Negligent disregard of petitioner’s medical condition causing permanent damages; and,
(D) Other acts of negligence and liability to be shown at trial.

Considering these alleged facts, and accepting them as true, while the effect of the injury to Mrs. Leboeuf s Achilles tendon was clearly made worse by the failure, refusal or delay of her employer in authorizing the MRI, we find that these allegations fail to state a cause of action against Mrs. Leboeufs employer, as they allege neither an intentional act nor an act rising to the level of a cause of action under the “narrow exception” to the exclusivity provision of the Act under the Weber and Kelly. Accordingly, we hereby affirm that part of the May 4, 2004 judgment of the trial court which sustained the defendants’ peremptory exception raising the objection of no cause of action.

However, La. C.C.P. art. 934 mandates that when the grounds pleaded by the peremptory exception raising the objection of no cause of action may be removed by amendment of the petition, the judgment sustaining the exception shall Imorder amendment of the petition within a delay set out by the court. We find that the grounds for the peremptory exception raising the objection of no cause of action can be removed by amendment to the plaintiffs’ petition. Therefore, we hereby reverse that part of the May 4, 2004 judgment of the trial court that dismissed the plaintiffs’ suit. Further, we remand this matter to the trial court with instructions that the trial court issue an order to the plaintiffs to amend their petition to state a cause of action against the defendants within a reasonable time delay pursuant to La. C.C.P. art. 934 and consistent with the views expressed herein. See Livaccari, 808 So.2d at 394.

CONCLUSION

For the above and foregoing reasons, the judgment of the trial court is hereby affirmed in part, reversed in part, and remanded with instructions.

All costs of this appeal are assessed to the defendants/appellees.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

McDONALD, J., dissents and assigns reasons.

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

McDONALD, J.

Dissenting.

hi respectfully dissent and do not believe these facts require the result reached by the majority. Ms. LeBoeuf suffered a work related injury on July 22, 2003. She was seen by Dr. Cenac who scheduled an MRI for July 28, 2003. Claims Management, Inc. (CMI), the compensation administrator for Wal-Mart, cancelled this MRI on July 25. It was later rescheduled by Dr. Cenac for August 18, but was not approved until August 25 and at a different facility. LeBeouf claims that the surgery recommended by Dr. Cenac was no longer viable at that time because of the delay in obtaining the MRI. She never sought any assistance under the Workmen’s Compensation Act, but chose instead to file suit. Her suit claims the delays in approving the medical procedure resulted in permanent damage to her Achilles tendon.

However, the Workers’ Compensation Act provides a remedy for her that she failed to pursue. The Act gives the WCJ the authority to order whatever treatment is necessary and to enforce this order. The judge also has continuing power and authority over the case to make any modifications in the judgment that he/she deems appropriate. Additionally, the employee has a right to an expedited appeal. The Act provides:

E. (2) Regardless of whether the judgment rendered by the workers’ compensation judge is in favor of the employer or the | ¡.employee, when the workers’ compensation judge has made a specific finding that further delay for surgery would, more likely than not, result in death, permanent disability, or irreparable injury to the claimant, any appeal of the judgment shall be entitled to preference and priority and handled on an expedited basis. In such cases, the record shall be prepared and filed within fifteen days of the granting of the order of appeal. The court of appeal shall hear the case within thirty days after the filing of the appellee’s brief. LSA-R.S. 23:1310.5

In his dissent in Kelly, Justice Calogero pointed to the changes made by the 1988 amendments and the employee’s rights:

“These changes in the law may have somewhat improved the position of an employee whose employer refuses to pay for necessary medicals, by affording the hearing officer the authority to “order” such treatment. However, they have not solved the problem for the employee whose employer has been ordered by the hearing officer to pay for necessary medical care, and who chooses to appeal that order rather than follow it, with the result for the employee a severe worsening of the medical condition.” Kelly, 98-0454 at p. 1, 729 So.2d at 1040,

Thus, the employee has enforceable rights under the act. However, Ms. Le-Boeuf failed to pursue them. Once the MRI’s were cancelled, she could have requested a hearing to determine if the employer should pay for the medical treatment. Only then would the question posed by Justice Calogero be before this court. Had she won at the hearing level, she would then have an order from the WCJ ordering Wal-Mart to pay for the MRI. Had they refused to follow the order and appealed, she would be entitled to an expedited appeal if the WCJ found that further delay would result in increased injury to her. If the result of the appeal was a severe worsening of her medical condition, then the facts would squarely fit the situation that concerned Justice Calogero in Kelly. However, in this case there is no order because LeBoeuf never requested a hearing with the WCJ. Her counsel pointed out at the argument that Ms. LeBoeuf was not aware that she could seek redress before the WCJ in her situation. This is extremely unfortunate, ^particularly in light of her complaint. However, the procedure was available and she failed to pursue it.

The Act is the exclusive remedy for the injured employee unless the employer’s action was intentional. The action complained of by Ms. LeBoeuf is covered by the Act. However, the majority seeks to carve out an exception where one does not exist and where the employee does not have an order that the employer has failed to follow. Ms. LeBoeuf failed to follow the dictates of the Act, and instead seeks redress from the courts. Had she won at the WCJ level and her situation was the same, I might find the majority’s position to have merit. However, since she failed to seek redress under the provisions provided in the Act, I am reluctant to grant them to her here.

For these reasons, I respectfully dissent.

McCLENDON, J.,

concurs in part and dissents in part.

hThe majority has remanded this matter to allow Ms. LeBoeuf the opportunity to amend her petition to allege facts of an intentional tort and facts that would “rise to the level of a cause of action under the ‘narrow exception’ to the exclusivity provision” of the Workers’ Compensation Act under Weber v. State, 93-0062 (La.4/11/94), 635 So.2d 188, and Kelly v. CNA Ins. Co., 98-0454 (La.3/12/99), 729 So.2d 1033. While I concur with the remand to allow an amendment to allege an intentional tort, I disagree with the majority that Ms. LeBoeuf is able to allege a Weber/Kelly cause of action.

The majority in this case has erroneously defined the “narrow exception” established in Weber as occurring “where an employer knows to a substantial certainty that his intentional and/or arbitrary denial or delay of medical treatment or to pay necessary medical expenses will result in death or a significant worsening of the employee’s condition.” (Emphasis added.) In fact, the Weber exception requires that the act be both intentional and arbitrary. Weber, 93-0062, 635 So.2d at p. 193. It is within this framework that our analysis begins.

The Workers’ Compensation Act provides an intentional tort exclusion in LSA-R.S. 23:1032(B), which provides: “Nothing in this Chapter shall affect the | pliability of the employer, or any officer, director, stockholder, partner, or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.” The supreme court has held that the words “intentional act” mean the same as “intentional tort” in reference to civil liability. Reeves v. Structural Preservation Systems, 98-1795, p. 5 (La.3/12/99), 731 So.2d 208, 211 (citing Bazley v. Tortorich, 397 So.2d 475, 480 (La.1981)). The word “act” is used to denote an external manifestation of the actor’s will which produces consequences. Bazley, 397 So.2d at 481. The meaning of “intent” is that the person who acts either (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result. Reeves, 98-1795 at p. 6, 731 So.2d at 211; Bazley, 397 So.2d at 481. In this regard, I find no distinction between the “narrow exception” created in Weber and an intentional tort under the Workers’ Compensation Act, other than the additional requirement that the injury rise to a certain level of significance before the “narrow exception” applies.

Further, I find Justice Kimball’s reasoning, in her concurrence in Weber, to be persuasive. More specifically, Justice Kimball stated:

The majority achieves the correct result by creating an exception to the general rule that penalties and attorney’s fees are the exclusive remedy under the Worker’s Compensation Act for an employer’s arbitrary denial of benefits. According to the majority, the exception applies when the conduct and the resulting injury does not occur in the course of employment and only marginally arises out of employment, and when the employer knew to a substantial certainty the denial would cause death that would not otherwise have occurred .... The exception applies only when there is intentional conduct and when the employer acts arbitrarily despite knowledge that death is substantially certain to follow. (Emphasis added.)
In my view, the Act itself creates the applicable exception when it states: “Nothing in this Chapter shall affect the liability of the employer ... resulting from an intentional act.” La. R.S. 23:1032 (emphasis added). This “intentional act” exclusion would not apply where an employer arbitrarily and capriciously denies benefits without ^knowing death or injury is substantially certain to follow because such a denial of benefits does not rise to the level of an “intentional act.” However, where an act is arbitrary and capricious and intentional, in that “the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead,” Bazley v. Tortorich, 397 So.2d 475, 482 (La.1981), then the “intentional act” exclusion applies and the exclusive remedy rule is inapplicable.

I agree that there is no reason to create an exception where one already exists. By returning to the well-traveled path of the intentional tort exclusion, the confusion created by the Weber and Kelly cases— whether an injury needs to be life threatening or merely a significant worsening of the employee’s condition — is avoided. The focus in an intentional tort analysis is the act and the intent, rather than the severity of the injury. Thus, I concur with the majority in remanding this matter to give Ms. LeBoeuf the chance to amend her pleadings to allege an intentional tort. However, I dissent insofar as the majority also gives plaintiff the opportunity to amend her pleadings to allege other facts that would fall within the “narrow exception” to the exclusivity provision of the Workers’ Compensation Act.

Further, even should our supreme court hold that the exception created in Weber, extends to a non-death case, I do not believe it is possible for Ms. LeBoeuf under the facts of this case to state such a cause of action. Ms. LeBoeufs torn Achilles tendon, while evidently made worse by the failure, refusal or delay of her employer to authorize the MRI, does not rise to the level of the injury envisioned by Kelly. See Kelly, 98-0454 at p. 8, 729 So.2d at 1038. Thus, regardless of whether the “narrow exception” exists in a non-death case, a remand in this matter as to the exception would be futile.

|4I further note that under the facts as presently alleged in her petition, and as set forth in greater detail in the dissent of my esteemed colleague, Judge McDonald, LSA-R.S. 23:1201 provides an adequate remedy to Ms. LeBoeuf. This case is clearly the type of situation envisioned by the legislature when it enacted the penalty and attorney fees provisions in the Workers’ Compensation Act. See Livaccari v. Alden Engineering, Inc., 00-0856, p. 8 (La.App. 1 Cir. 12/1/00), 808 So.2d 383, 389.

Therefore, I respectfully concur in part and dissent in part.

      . In the Weber case, Weber contracted an occupational disease. When his disease worsened and his physician advised Weber’s employer that Weber's condition was terminal without a heart transplant, the employer refused to incur the costs associated with the necessary heart transplant, despite the recommendation of the Office of Workers’ Compensation. Weber died before his attorney was able to seek judicial recourse.

      . Subsequent to the court's decision in Weber, the Louisiana Constitution and the Act were amended to divest the district courts of jurisdiction over claims arising out of the Act and to increase the authority of the Office of Workers’ Compensation to resolve disputes and issue orders rather than recommendations regarding the necessity of medical treatment. The Office of Workers' Compensation now has the power to adjudicate claims for medical benefits and to assess penalties and attorney fees when employers refuse to comply with its orders. Kelly, 729 So.2d at 1038.

      . LSA-R.S. 23:1310.8.

      . While the statute refers to surgery, a reasonable interpretation would include any medical testing or treatment that would be a prelude to deciding whether surgery was appropriate or not.

      . La. R.S. 23:1032.

      . In referring to Ms. Kelly's carpal tunnel syndrome, the supreme court stated: “Carpal tunnel syndrome, by its very nature, is not life threatening. The employer’s arbitrary denial or delay of medical treatment would not result in 'death or a significant worsening of the employee's condition.” Kelly, 98-0454 at p. 8, 729 So.2d at 1038-39.

      . After the supreme court’s decision in Weber, the Louisiana Constitution and the Workers’ Compensation Act were amended to divest the district courts of jurisdiction over claims arising out of the Workers' Compensation Act and to increase the power of the Office of Workers’ Compensation to resolve disputes and issue orders rather than recommendations regarding the necessity of medical treatment. The Office of Workers’ Compensation now has the authority to adjudicate claims for medical benefits and to assess penalties and attorney fees when employers refuse to comply with its orders. Kelly, 98-0454 at p. 8, 729 So.2d at 1038.


source: Caselaw Access Project

author: PARRO, J. HUGHES, J.,

license: Public Domain

text:
    Dawn MAGEE v. ABEK, INC.
    No. 2004 CA 2554.
    Court of Appeal of Louisiana, First Circuit.
    April 28, 2006.
    Rehearing Denied June 30, 2006.

      William R. Mustian, III, Stanga & Mus-tian, Metairie, for Plaintiff-Appellant/Ap-pellee Dawn Magee.
    Tammy M. Nick, Slidell, for Defendant Appellee/Appellant ABEK, Inc.
    Before: PARRO, McDONALD, and HUGHES, JJ.
   PARRO, J.

|2In this workers’ compensation case, the claimant, Dawn Magee, appeals a judgment that ordered her former employer, Abek, Inc. (Abek), to pay medical benefits for a work-related injury to her left ulnar nerve, but denied benefits for treatment of back and neck injuries, based on the workers’ compensation court’s finding that these were not caused by the accident at work. She also appeals the denial of her claims for temporary total disability benefits, supplemental earnings benefits, penalties, attorney fees, and court costs, including the fees of her medical expert. Abek also appealed, seeking the forfeiture of all past, present, and future benefits and restitution on the grounds that Magee willfully made false statements for the purpose of obtaining workers’ compensation benefits. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Dawn Magee went to work during the summer of 2002 as a receptionist at Abek, a real estate business owned by Andrew Kobeszko, his wife, Elizabeth, and their children. While at work on January 9, 2003, Magee went into the kitchen, slipped, and fell. Although Abek did not have workers’ compensation insurance, the company began paying Magee’s medical bills and continued her usual paycheck through the end of May, although she was not working during that period. Questions arose concerning her disability status and the necessity for certain treatments, and in March 2003, Magee filed a disputed claim for workers’ compensation benefits. Abek answered, denying all allegations, and later reconvened for restitution and forfeiture of all her benefits.

After a two-day trial in March 2004, the court took the matter under advisement and accepted post-trial memoranda from the parties. A judgment was signed on April 27, 2004, in which the court found Magee had suffered a. work-related accident on January 9, 2003, injuring, her left ulnar nerve. The court ordered Abek to pay all |sreasonable and necessary past, present, and future medical treatments for the ulnar nerve injury, subject to the workers’ compensation fee schedule. Finding that Magee’s neck and back conditions were not caused by the accident at work, the court denied any claims for relief related to those complaints and further denied Magee’s claims for temporary total disability benefits, supplemental earnings benefits, penalties, attorney fees, and court costs. Abek’s claims for forfeiture of benefits and restitution were also denied. Both parties filed motions for new trial, which were denied. However, the court signed an amended judgment on July 7, 2004, clarifying its intentions regarding medical benefits for the ulnar nerve injury. The amended judgment stated all past treatments by Dr. Dietze for that injury were reasonable and necessary, and the recommended surgery — a left ulnar nerve exploration and neurolysis with transposition — was also reasonable and necessary. Both parties appealed these judgments.

APPLICABLE LAW

Standard of Review

In a workers’ compensation case, as in other cases, the appellate court’s review of factual findings is governed by the manifest error or clearly wrong standard. Smith v. Louisiana Dep’t of Corr., 93-1305 (La.2/28/94), 633 So.2d 129, 132. The two-part test for the appellate review of facts is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court, and 2) whether the record establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the trial court’s finding, no additional inquiry is necessary to conclude there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a trial court’s factual finding only if, after reviewing the record in its entirety, it determines the trial court’s finding was clearly wrong. See Stobart v. State, Through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La.1993). Furthermore, when factual findings are based on determinations regarding the credibility of witnesses, the manifest error standard 14demands great deference to the findings of the trier of fact, for only the fact finder can be aware of the variations in demeanor and tone that bear so heavily on the listener’s understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 883.

Burden of Proof I Causation! Credi bility

The workers’ compensation laws provide coverage to an employee for personal injury by accident arising out of and in the course of employment. LSA-R.S. 23:1031(A). An employee must prove the chain of causation required by the workers’ compensation statutory scheme. He must establish that the accident was work-related, that the accident caused the injury, and that the injury caused the disability. DeGruy v. Pala, Inc., 525 So.2d 1124, 1130 (La.App. 1st Cir.), writ denied, 530 So.2d 568 (La.1988). Initially, a workers’ compensation claimant has the burden of establishing by a preponderance of the evidence that an accident occurred on the job and that he sustained an injury. Holiday v. Borden Chem., 508 So.2d 1381, 1383 (La.1987). Next, he must establish a causal connection between the accident and the resulting disability by a preponderance of the evidence. West v. Bayou Vista Manor, Inc., 371 So.2d 1146, 1147 (La.1979). Causation is not necessarily and exclusively a medical conclusion. It is usually the ultimate fact to be found by the fact finder based on all credible evidence. DeGruy, 525 So.2d at 1132.

Even if the employee suffered from a pre-existing medical condition, he may still meet his burden of proof of causation if he proves that the accident aggravated, accelerated, or combined with the pre-ex-isting condition to produce a compensable disability. Peveto v. WHC Contractors, 93-1402 (La.1/14/94), 630 So.2d 689, 691. He may be aided in meeting the foregoing burden by a presumption of causation, if he can prove that before the accident he had not manifested disabling symptoms, that such symptoms commenced with the accident and manifested themselves thereafter, and that either medical or circumstantial evidence indicates a reasonable possibility of IfiCausal connection between the accident and onset of the disabling symptoms. Walton v. Normandy Village Homes Ass’n, Inc., 475 So.2d 320, 324-25 (La.1986).

A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Bruno v. Harbert Int’l, Inc., 593 So.2d 357, 361 (La.1992). Corroboration of the worker’s testimony may be provided by the testimony of co-workers, spouses, friends, or by medical evidence. Id. Barring circumstances that cast suspicion on the reliability of the worker’s uncontradicted testimony, the fact finder should accept the testimony as true when determining whether the worker has discharged his burden. Brown v. Kwok Wong, 01-2525 (La.App. 1st Cir.12/20/02), 836 So.2d 315, 319. If the evidence leaves the probabilities of causation equally balanced, the worker has failed to carry his or her burden of proof. Whether a claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the workers’ compensation judge. Harrison v. Baldwin Motors, 03-2682 (La.App. 1st Cir.11/3/04), 889 So.2d 313, 316, writ denied, 05-0249 (La.4/1/05), 897 So.2d 609.

A claimant’s lack of credibility on factual issues can serve to diminish the veracity of his complaints to a physician. Peters v. Harmsen, 03-1296 (La.App. 1st Cir.4/2/04), 879 So.2d 157, 162. Thus, in many cases, the credibility of the history given by the claimant to his physicians becomes as important as the medical opinions based in part on that history. See Cheatum v. Wackenhut Corp., 346 So.2d 888, 890 (La.App. 4th Cir.1977). The rule that .questions of credibility are for the trier of fact applies also to the evaluation of expert testimony. Lirette v. State Farm Ins. Co., 563 So.2d 850, 853 (La.1990).

Indemnity Benefíts

An employee seeking to recover indemnity benefits for a temporary or permanent total disability must prove by clear and convincing evidence that he is physically unable to engage in any gainful occupation, whether or not the same type of |fiwork he was engaged in at the time of the injury. LSA-R.S. 23:1221(1)(c) and (2)(c). To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, in other words, much more probable than not. Carter v. Williamson Eye Center, 04-0527 (La.App. 1st Cir.2/11/05), 906 So.2d 503, 508. An employee is entitled to receive supplemental earnings benefits if he sustains a work-related injury that results in his inability to earn ninety percent or more of his average pre-injury wage. LSA-R.S. 23:1221(3)(a). The employee bears the burden of proving, by a preponderance of the evidence, that the work-related injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. LaFleur v. Alec Elec., 04-0003 (La.App. 1st Cir.12/30/04), 898 So.2d 474, 478, writs denied, 05-0276 and 0277 (La.4/8/05), 898 So.2d 1287 and 1288.

Statutory Penalties

Pursuant to the statutes in effect at the time of this injury, penalties and attorney fees are recoverable under LSA-R.S. 23:1201(F) if the employer or insurer failed to commence payments of benefits timely, unless the claim is reasonably controverted. Attorney fees, but not penalties, were recoverable under LSA-R.S. 23:1201.2 if the employer or insurer arbitrarily and capriciously discontinued payment of benefits due. Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41, 45. The claimant is not entitled to such a recovery where there exists a rational basis for an employer and/or its insurer to deny or discontinue benefits. Connor v. Frees Constr. Co., Inc., 525 So.2d 241, 244 (La.App. 1st Cir.), writ denied, 532 So.2d 111 (La.1988). Whether the employer’s refusal to pay benefits warrants the imposition of penalties and attorney fees is a factual question that will not be disturbed on review in the absence of manifest error. Pitcher v. Hydro-Kem Services, Inc., 551 So.2d 736, 740 (La.App. 1st Cir.), writ denied, 553 So.2d 466 (La.1989).

|7Louisiana Revised Statute 23:1208 makes it unlawful for any person to willfully make a false statement or representation for the purpose of obtaining or defeating any workers’ compensation benefit or payment. This broadly worded statute encompasses false statements or misrepresentations made to anyone, including the employer, physicians, or insurers, when made willfully or deliberately for the purpose of obtaining or defeating benefits. Resweber v. Haroil Constr. Co., 94-2708, 94-3138 (La.9/5/95), 660 So.2d 7, 9. The requirements for forfeiture of benefits under Section 1208 are 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. Resweber, 660 So.2d at 14. The relationship between the false statement and the pending claim will be probative in determining whether the statement was made willfully for the purpose of obtaining benefits. A false statement which is inconsequential to the present claim may indicate that the statement was not willfully made for the purpose of obtaining benefits. An inadvertent and inconsequential false statement would not result in forfeiture of benefits. Newman v. Richard Price Constr., 02-0995 (La.App. 1st Cir.8/8/03), 859 So.2d 136, 141. The forfeiture of benefits under Section 1208 is prospective only, from the time the misrepresentation occurs, rather than from the date of the accident. Leonard v. James Indus. Constructors, 03-0040 (La.App. 1st Cir.5/14/04), 879 So.2d 724, 730 (en banc), writ denied, 04-1447 (La.9/24/04), 882 So.2d 1139. The issue of whether an employee forfeited workers’ compensation benefits is one of fact, which is not to be reversed on appeal, absent manifest error. Davis v. AMS Tube Corp., 02-2427 (La.App. 1st Cir.12/31/03), 868 So.2d 141, 146, writ denied, 04-0286 (La.3/26/04), 871 So.2d 354.

ANALYSIS

As noted by the workers’ compensation judge in oral reasons for judgment, “[t]his was a bitter contest.” As a result, both parties have appealed, and both have set out assignments of error. Keeping in mind the appropriate standard of review, we examine these alleged errors, beginning with Magee’s claims. Although not the first assignment of error, the one which undoubtedly influenced the trial court’s decision in |sthis case and will similarly impact this court’s review is the claim that the trial court unfairly and improperly assessed Magee’s credibility. Therefore, we address this assignment first. In .oral reasons, the trial court stated:

Records reveal Dawn Magee has used the name Dawn Grass on several occasions since 1997 and prior to her marriage. It is concluded that this was done methodically for the purpose of creating'confusion, deceit, and for monetary gain.

There is no dispute that Magee used the surname Grass years before her marriage and claimed to be married to George Grass in order to qualify for spousal benefits on his employer’s health insurance policy covering employees and their families. She admitted having done so, and further acknowledged that she and Grass are repaying approximately $30,000 in health insurance benefits paid on her behalf as a result of this falsehood. While that misrepresentation had no direct bearing on Magee’s claim for benefits in this case, it is relevant for the court’s assessment of her overall credibility and character. The court also observed:

It is further concluded that Dawn Ma-gee withheld numerous and significant injuries and treatments with a barrage of ailments with multiple physicians. Dawn Magee’s lack of credibility is significant. When treating with physicians, only she can provide a history of her symptoms. Lack of veracity with respect to her prior events and complaints diminish the veracity of her complaints to her physicians.

The record is replete with such omissions and inconsistencies. As one example, on an orthopedist’s new patient questionnaire that she completed in April 2003, she denied a previous history of injury or treatment to her back or neck of any kind before this accident. However, in 1998 and again in 2001, MRI’s of the cervical and lumbar spine were obtained because of her complaints of pain in both of those areas and radiating pain into her extremities. Over the years, as Magee sought treatment from various physicians for numerous ailments, the histories provided to those doctors were often, incomplete. Ma-gee contended at trial and in briefs to this court that these errors were simply lapses of memory or innocent omissions or mistakes, and that may be the case. However, it is precisely with respect to such evaluations of credibility that this court must defer to the trial court, who observed the witness during testimony. When factual findings are based on determinations regarding the credibility of a witness, the manifest Rerror standard demands great deference to the trier of fact’s findings, for only the fact finder can be aware of the variations in demeanor and tone that bear so heavily on the listener’s understanding and belief in what is said. Harrison v. Baldwin Motors, 03-2682 (La.App. 1st Cir.11/3/04), 889 So.2d 313, 315, writ denied, 05-0249 (La.4/1/05), 897 So.2d 609. Several of the doctors who examined Ma-gee after the accident made comments such as “psychological overlay” or “symptom magnification,” as well as noting that Magee’s pain complaints were inconsistent, depending on whether she was aware that a test was being conducted or whether a response was elicited while she was unaware that the doctor was performing a test. We find there were sufficient inconsistencies and unexplained omissions in the evidence for the trial court to conclude that Magee’s testimony was tainted by a lack of credibility.

With this credibility evaluation in the background, we examine two related assignments of error: that the trial court erred in failing to apply the presumption of causation to Magee’s neck and back injuries and in finding that her neck and back injuries were not related to the January 9, 2003 accident at work. The presumption could help Magee establish causation if her symptoms of back and neck pain had not been manifested before the accident, but commenced with the accident and manifested themselves thereafter, and if either medical or circumstantial evidence indicated a reasonable possibility of causal connection between the accident and the onset of those symptoms. See Walton, 475 So.2d at 324-25. In this case, Magee contends she had no pre-existing neck or back problems other than occasional lower back pain caused by kidney or bladder infections, but since the accident, has been diagnosed with a herniated cervical disc and a bulging lumbar disc. She claims the symptoms related to her neck and lower back commenced with the accident. However, medical records indicate that over the years, she had complained about neck and back pain to various physicians. Two years before the accident, Magee completed a health survey for Dr. Christy Graves, a family practice doctor, in which she noted, among other things, pain or stiffness in the neck and recurring or severe backache. Moreover, in 1998, MRI’s of the cervical spine and lumbar spine were obtained, and in 2001, MRI’s of the head and |1flneck were obtained, in both cases due to complaints of pain in these areas and radiating pain to her extremities. Therefore, because she had symptoms of back and neck pain before the accident, the trial court’s causation analysis could not be assisted by the presumption, and we find no error in the court’s failure to apply the presumption of causation in this case.

With reference to the factual finding that the lower back problems were not caused by the accident, the medical records are quite consistent. Various tests before and after the accident show a bulging disc in the lumbar area that was not causing compression of the spinal cord or radiculopathy. Despite Magee’s continuing complaints concerning the lower back and radiating pain, a nerve conduction study in April 2003 revealed no evidence of radiculopathy or neuropathy in the left leg. An MRI of the lumbar spine that same month indicated a mild central broad-based disc bulge at the L4-5 level with no evidence of cord compression or focal disc herniation or severe spinal stenosis. Dr. Eric S. Madore, who treated her for her complaints of neck and back pain, noted in an August 2003 letter that despite negative test findings on the MRI and nerve conduction study, Magee continued to complain of worsening muscle weakness and an inability to control bowel and bladder functions. He referred her to a neurosurgeon for evaluation of these symptoms. According to Dr. Donald D. Dietze, Jr., the neurosurgeon who examined her, there was no lumbar spinal column disease causing her bowel and bladder incontinence. Basically, none of the doctors who tested Magee after the accident found anything in the lumbar tests that was significantly different from the earlier test results and complaints concerning that area. We conclude, therefore, that the trial court’s factual finding that Magee’s lower back problems were not caused by the accident is supported by the evidence and not manifestly erroneous.

With respect to the cervical spine, however, an MRI ordered by Dr. Dietze in June 2004 did reveal a cervical disc herniation that was more extensive than the bulging condition noted on the earlier MRIs of that area. With reference to that condition, Dr. Dietze said in his deposition that “certainly, a fall can cause it,” and concluded from Magee’s history that the fall probably did cause the cervical problems. InHowever, Dr. Dietze also acknowledged that the symptoms from the ulnar nerve injury, which could only have been caused by the fall, could mimic the symptoms of a herniated cervical disc. Additionally, although Magee did not give Dr. Dietze a detailed description of her medical history, the medical records from other doctors who treated her before the fall showed earlier symptoms of weakness and numbness in her left extremities. For example, these and other complaints during 2001 prompted Dr. Graves to get various tests to rule out multiple sclerosis and lupus. At best, the evidence leaves the probability of causation with respect to the neck injury equally balanced. If the evidence leaves the probabilities of causation equally balanced, the worker has failed to carry his or her burden of proof. See Harrison, 889 So.2d at 316. Based on the entirety of Magee’s medical history, colored by the fact that she was not always candid and forthcoming with her physicians, we find no manifest error in the trial court’s conclusion that Magee failed to carry her burden of proof that the neck injuries were caused by the fall at work.

Magee also assigns as error the trial court’s finding that she was not disabled as a result of the accident. To be entitled to temporary or permanent total disability benefits, Magee had to establish by clear and convincing evidence that she was physically unable to engage in any gainful occupation, whether or not the same type of work she was engaged in at the time of the injury. Magee’s evidence does not meet that test. Several of her doctors indicated that she was able to return to work after the accident. Dr. John. J. Watermeier, the orthopedist who treated her in April and May 2003, concluded that her disability status was “light work.” After an independent medical examination, another orthopedist, Dr. Walter R. Abbott, Jr., said he felt Magee’s aches and pains from the fall were not of any significance and that she should be able to return to her sedentary work without any problems. The only doctor who opined that she could not return to her. previous or similar employment “full-time” was Dr. Dietze, but this was a preliminary opinion, expressed after only one visit with her in August 2003, and before any further tests or treatment. This single opinion does not meet the standard of clear and convincing evidence that she could not engage in any |1?,type of work whatsoever. Furthermore, other than this opinion and her own subjective beliefs, Magee presented no evidence that she was unable to earn 90% of her average pre-injury wages. Therefore, we find no error in the court’s denial of disability payments or supplemental earnings benefits.

Magee also contends the trial court erred in failing to order the employer to pay unpaid medical bills. However, the evidence does not establish that the medical bills that remain unpaid were causally related to the accident. Some of the invoices were for past due amounts with no explanation of which medical treatments- were provided for those amounts. Other bills were for treatment or diagnostic testing related to heart conditions, bladder dysfunctions and incontinence, anxiety, and gastro-intestinal problems. Beyond Magee’s own speculation, the evidence does not establish a causal link between those medical services and Magee’s fall at work. The remaining invoices were for treatments related to her neck and back complaints, which the trial court determined were not caused by the fall at work. We conclude, therefore, that the court did not err in denying the claim for payment of these unpaid medical expenses.

Magee claims the trial court erred in failing to award penalties and attorney fees for Abek’s failure to timely pay medical bills and other benefits. Indeed, the record shows that Abek occasionally did not pay medical benefits within sixty days after receiving written notice of them, as required by LSA-R.S. 23:1201(E). However, according to subsection 1201(F)(2), the penalty subsection shall not apply if the claim is reasonably controverted or if the nonpayment results from conditions over which the employer or insurer had no control. The invoices of which Magee complains fall within this exception. Correspondence between the attorneys for both parties demonstrates that some of the invoices were submitted without information to substantiate that the treatments were actually related to the fall-—in fact, some of them were for treatments that the doctors specifically designated were “Not Comp.” Also, in one instance, Abek was in the process of negotiating a discount with the hospital where Magee had received her initial emergency room treatment, only to learn in a follow-up call that the bill had been paid in full, apparently by Magee. After confirming that Magee had indeed 11smade this full payment, Abek reimbursed her, even though this resulted in payment above the workers’ compensation fee schedule and beyond the sixty-day period after receipt of written notice of the invoice. Other bills were submitted for payment when, in fact, Abek had already paid them. Also, despite the fact that her doctors had not precluded her from working or assigned her any disability status, Magee was paid her full salary through the end of May. Accordingly, we find no manifest error or abuse of discretion in the trial court’s refusal to award penalties and attorney fees under this subsection.

Magee further contends that Abek made misrepresentations for the purpose of defeating her claims, and the trial court erred in failing to impose civil penalties under LSA-R.S. 23:1208(D). Specifically, she claims Kobeszko falsely denied knowing that Magee also used the name “Grass,” claiming she was trying to hide her medical records from Abek. It is clear that Magee did not try to hide her use of the name “Grass”; her employment application with Abek shows this name in parentheses, she consistently used the name “Grass” in seeking medical treatment for this incident, and her attorney requested medical records in this name as early as April 2003. However, it is also clear that, whatever confusion Kobeszko and/or his attorney had concerning Magee’s use of the name Grass, there was no attempt to withhold payments from her or her health care providers as a result. Consequently, we find no manifest error or abuse of discretion in the trial court’s failure to award penalties under this subsection.

Finally, Magee asserts as error the court’s failure to award court costs in the amount of $1511.95, which she incurred for the deposition testimony of Dr. Dietze. The judgment in this case did not include such an award, and Magee’s motion for new trial and to fix costs was denied. LSA-R.S. 23:1317(B) states that the fees of expert witnesses are allowable only when “fixed in the judgment.” The Louisiana Supreme Court and this court have held that expert witness fees may only be awarded in a workers’ compensation case when fixed in the judgment on the merits between the employer and employee, and cannot be fixed pursuant to a subsequent rule to tax costs. See Jefferson v. Lauri N. Truck Lines, 192 La. 29, 187 So. 44 (1939); Boleware v. City of Bogalusa, 01-1014 (La.App. 1st Cir.12/20/02), 837 So.2d 71, 77. As in Boleware, the record in this case shows no effort before, during, or immediately after the trial on the merits to have the workers’ compensation judge fix the amount of expert witness fees, nor was there any evidence at trial of the amount that might be attributable to this witness, such that these costs could be included in the judgment. Therefore, we find no error in the decision to deny the post-judgment motion to fix and award the costs attributable to Dr. Dietze’s deposition.

In its two related assignments of error, Abek claims the court erred in failing to find that Magee forfeited all past, present, and future benefits, pursuant to LSA-R.S. 23:1208(E), and in failing to order restitution to Abek, pursuant to LSA-R.S. 23:1208(D), for the amounts it expended to her and on her behalf. Abek argues that the evidence reveals numerous instances in which Magee deliberately misrepresented her medical history and current complaints for the purpose of obtaining benefits. Therefore the court’s denial of their claims, despite its recognition of Magee’s lack of credibility, was error. We disagree. Although the trial court did not explain its decision on this issue, our reading of the record allows the conclusion that Magee did not deliberately make misstatements or omit information for the purpose of obtaining workers’ compensation benefits. Most of the inconsistent statements that eventually undermined her credibility in this case were made to various physicians over the course of many years preceding the accident. Both before - and since the accident, several of her doctors referred to-her mental state, noting she was distracted in her way of speaking and had a psychological overlay, tending toward hypochondria, that may have distorted her perceptions and descriptions of her physical conditions. If, as the evidence suggests, Magee truly believes her current physical problems were caused by the accident and that she is disabled as a result of that incident, then her protestations to that effect are not attempts to defraud her former employer or the court, but simply statements of what she believes to be true. Therefore, while the court obviously concluded Magee’s complaints were not totally believable, it could also conclude that her complaints were not deliberate falsehoods. The only deliberate falsehood was her | ^longstanding claim of a spousal relationship with Grass and the use of his surname. However, this was not for the purpose of obtaining workers’ compensation benefits, but to obtain health insurance under policies provided by his employer or employers. Therefore, we find no manifest error or abuse of discretion in the court’s denial of penalties under the applicable statutes.

CONCLUSION

For the foregoing reasons, the judgment of April 27, 2004, and the amended judgment of July 7, 2004, are affirmed, with each party to bear its own costs of this appeal.

AFFIRMED.

HUGHES, J., dissents with reasons.

HUGHES, J.,

dissenting.

hi respectfully dissent.

I believe the trial court should' have awarded the $1511.95 incurred for the trial testimony of Dr. Dietz. In all other respects I agree with the majority.

      . In September 2003, Magee was married to George Grass III. For simplicity, this opinion will use the name she used when her claim was filed.

      . The appeals of both parties address the judgment on the merits and a later judgment in which the court denied both parties’ motions for new trial, but amended the original judgment to clarify its intent.

      . According to the briefs, the court-ordered surgery to correct the left ulnar nerve injury was performed.

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

      . LSA-R.S. 23:1201.2 was repealed by 2003 La. Acts, No. 1204, § 2, after the date of this accident.


author: McCLENDON, J.

text:
    OAK HARBOR PROPERTY OWNERS’ ASSOCIATION, INC., Oak Harbor Architectural Review Committee, Azalea Lakes Partnership and Oak Harbor Investment Properties, L.L.C. v. THE MILLENNIUM GROUP I, L.L.C. and Esplanade Title, Inc.
    No. 2005 CA 0802.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 2006.

      Judith Otero, Mandeville, Counsel for Plaintiffs/Appellees Oak Harbor Property Owners’ Association, Inc., Oak Harbor Architectural Review Committee, Azalea Lakes Partnership, and Oak Harbor Investment Properties, LLC.
    Ross F. Lagarde, Lawrence E. Abbott, McChord Carrico, Covington, David S. Cressy, Mandeville, Counsel for Defendants/Appellants The Millennium Group I, LLC and Esplanade Title, Inc.
    Before: WHIPPLE, McCLENDON, and WELCH, JJ.
   McCLENDON, J.

1 ¡.Defendants, The Millennium Group I, L.L.C. (Millennium) and Esplanade Title, Inc. (Esplanade), appeal a judgment in favor of plaintiffs, Oak Harbor Property Owners’ Association, Inc., Oak Harbor Architectural Review Committee, Azalea Lakes Partnership, and Oak Harbor Investment Properties, L.L.C. The December, 2004 judgment held that the Restated Declaration and Covenants, Conditions, and Restrictions, Oak Harbor Subdivision, St. Tammany Parish, Louisiana, dated June 26, 1989 (restated restrictions), and the Supplementary Declaration of Covenants, Conditions, and Restrictions, Oak Harbor Boater Service Area, St. Tammany Parish, Louisiana, dated July 28, 1994 (supplementary restrictions), “apply to and encumber” lots located in the Oak Harbor Boater Service Area and owned by either Millennium or Esplanade. In the same judgment, the trial court also found that Azalea Lakes Partnership was the “Declarant” identified in the 1994 supplementary restrictions. Further, the trial court held that the Second Supplementary Declaration of Covenants, Conditions, and Restrictions, Oak Harbor Boater Service Area (second supplementary restrictions), which were confected and filed by the defendants in 2004, were invalid, and ordered the St. Tammany Parish Clerk of Court to remove those restrictions from the public record. Finally, a preliminary injunction was issued directing the defendants to cease uses and construction not approved by the restated and supplementary restrictions and to comply with those restrictions in the Oak Harbor Boater Service Area.

After a thorough review of the record before us, we reverse the holding that Azalea Lakes Partnership was the “De-clarant” under the | ^supplementary restrictions governing the Oak Harbor Boater Service Area. We affirm the judgment in all other respects.

The injunction prohibits the defendants from developing the Oak Harbor Boater Service Area in violation of the restated and supplementary restrictions. Thus, the primary issue on appeal is whether the restated and supplementary restrictions apply to Oak Harbor Boater Service Area. Initially, defendants argue that the supplementary restrictions failed to adequately describe the property covered by the restrictions. Thus, Millennium argues that, without a description, it had no notice that the property was encumbered by the provisions of either the restated or supplementary restrictions. Secondly, defendants assert that their approval of the second supplementary restrictions, in the absence of a negative act by the “Declarant,” was sufficient to amend or revoke the prior restrictions. In response, Oak Harbor asserts that the supplementary restrictions contained an adequate description and the second supplementary restrictions were not validly authorized, regardless of the status or validity of Azalea Lakes Partnership as the “Declarant.”

APPLICABILITY OF RESTRICTIONS

Oak Harbor Boater Service Area was developed as part of the larger Oak Harbor Planned Unit Development (Oak Harbor PUD), which was governed by the restated restrictions. As part of the overall plan of development for the Oak Harbor Boater Service Area, the supplementary restrictions were established and filed of record. Through the supplementary restrictions, the restated restrictions were made applicable to Oak Harbor RBoater Service Area. See Article XII, supplementary restrictions. However, Article 11.11 of the supplementary restrictions, governing “Duration, Amendment, and Termination,” specifically provides that if a conflict arose between the two sets of restrictions, the supplementary restrictions controlled.

Description

The restated restrictions contain a legal property description of the Oak Harbor PUD. The supplementary restrictions filed in the public record are entitled “SUPPLEMENTARY DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR OAK HARBOR BOATER SERVICE AREA.” The introductory paragraph of the supplementary restrictions states that “Declarant [, Landmark Land Company of Louisiana, Inc.,] is the owner and developer of certain real property situated in the Parish of St. Tammany, State of Louisiana, known as Oak Harbor Boater Service Area, which property is more particularly described on Exhibit ‘B’ attached hereto and made a part hereof (hereinafter the ‘Property’) .... ” However, Exhibit “B” was not attached to the supplementary restrictions filed in the parish public record in 1994. Landmark sold lots 1-21, 23 and 24 of the Oak Harbor Boater Service Area on July 29, 1994. The cash sale document fully described the property conveyed, including the name of Oak Harbor Boater Service Area, the township and range, a listing of lot numbers, and a reference to the official plan of the Oak Harbor Boater Service Area, found in Map File Number 1053-B filed in the public record on June 10, 1991. Landmark’s vendees sold the same property in January of 1997. The 1997 act of sale also contained a full description of the property and referred to the official plan of Oak Harbor Boater Service Area found in Map File Number 1053-B in the parish public record. By act of sale dated 15August 20, 2003, Millennium acquired certain lots in the Oak Harbor Boater Service Area. The sale document described the property by township and range in St. Tammany Parish, “in that part thereof known as OAK HARBOR BOATER SERVICE AREA, and being more fully described as LOTS 1, 2, 3, 4, 5, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 23 and 24 ..., as more fully shown by reference to the official plan of Oak Harbor Boater Service Area,” found in Map File Number 1053-B, and stated that the said property was subject to the restated and supplemental restrictions. Esplanade acquired lot 10 from Millennium by an act of sale dated August 25, 2004. Athough the act stated that the sale was made subject to the second supplementary restrictions, an exhibit to the act referenced the restated and supplementary restrictions as cancelled.

Building restrictions are incorporeal immovables and sui generis real rights likened to predial servitudes. LSA-C.C. art. 777. As real rights, building restrictions are not rights personal to the vendor. Rather, they inure to the benefit of all other property owners under a general plan of development, and are real rights running with the land. Once they are recorded in the public records, a subsequent acquirer of immovable property burdened with such restrictions is bound by them. The restrictions need not appear in the act of acquisition of the present owner or in his chain of title. It suffices that the document establishing the restrictions was filed for registry in the public record at the time the original subdivider conveyed the property to the ancestor of the present owner. Five N Company, L.L.C. v. Singer A & P Remainder Trust, 97-2165, pp. 4-5 (La.App. 1 Cir. 11/6/98), 721 So.2d 1066, 1068, writ denied, 98-3051 (La.2/5/99), 738 So.2d 4; Blessey v. McHugh, 94-0555, p. 8 (La.App. 1 Cir. 7/27/95), 664 So.2d 115, 119-20. Building restrictions may be amended or terminated as provided in the act of creation. LSA-C.C. art. 780 & LSA-R.S. 9:1141.5-1141.6. In the absence of such a provision in the act, the restrictions may be amended or terminated as prescribed by LSA-C.C. art. 780. See LSA-R.S. 9:1141.5-1141.6.

For an act to be translative of title to immovable property, one must be reasonably able to identify and locate the property by the description in the document or with the aid of extrinsic evidence admissible under the rules of evidence, including other documents in the public record. Canterberry v. Slade Brothers, 232 La. 1081, 96 So.2d 4, 9-11 (1957) (description in mortgage further identified with reference to prior transfers in public record); McClendon v. Thomas, 99-1954, pp. 4-5 (La.App. 1 Cir. 9/22/00), 768 So.2d 261, 264; Florida v. Roscoe, 479 So.2d 406, 408 (La.App. 1 Cir.1985); Bishop Homes, Inc. v. Devall, 336 So.2d 313, 318-20 (La.App. 1 Cir.), cert. denied, 338 So.2d 1155 (La.1976) (acquisitive prescription case with reference to descriptions in the chain of title utilizing tract names). Thus, it follows that the validity of real rights that affect one’s title in immovable property, such as building restrictions, rests on a similar rule of reasonable identification.

The subdivision name used as a description in the supplementary restrictions was not a complete legal description. However, we find that the property in question could be reasonably identified with the aid of the public record documents admitted at trial that referenced the specific subdivision or tract name of Oak Harbor Boater Service Area. Particularly useful were the general plan in Map File Number 1053-B, the acts of sale in Millennium’s chain of title, and Millennium’s own act of acquisition. We also find no error in the trial court’s finding that Millennium’s own act of acquisition |7evinced notice of the full property description and application of the restated and supplementary restrictions. Thus, we affirm the holding that the property in question was subject to the restated and supplementary restrictions at the time Millennium acquired it. The question then becomes whether the second supplementary restrictions filed by defendants, revoked or superseded the restated and supplementary restrictions.

Procedure for Amendment or Termination

For a valid amendment under the restated restrictions, action by the “Declar-ant,” identified as Landmark Company of Louisiana, Inc. (Landmark), is required. See Article XIV, Section 8(b). Further, Article 11.11 C of the supplementary restrictions requires (1) a fifty percent vote of “a Quorum of the Owners of the Lots,” (2) disallows any amendment affecting the Declarant’s rights “without the consent of Declarant,” and (3) states that the amendment “shall be effective when executed by the President and Secretary of the Association who shall certify that the amendment has been approved as hereinabove provided, and recorded” in the public record. Article 1.3 defines “Association” as the Oak Harbor Property Owners’ Association, Inc.

For termination, the restated restrictions require the same action by the De-clarant as for amendment. Additionally, under the supplementary restrictions, Article 11.11 A provides that the restrictions are to run until 2010, and automatically extend for terms of ten years each, unless the restrictions are “expressly terminated by an instrument signed by not less than seventy-five (75%) percent of the votes of the Members [of the entire Association]” at the end of the original “Anniversary Date, or at the expiration of any ten (10) year extension term .... ” (Brackets appear in the quoted source material.)

|RAs noted above, the Oak Harbor Boater Service Area is subject to both sets of restrictions. If a conflict arises, the supplementary restrictions control over the restated. Article 11.11, supplementary restrictions.

Defendants assert that, at the time the second supplementary restrictions were confected, Landmark had been dissolved and no new Declarant had been assigned. Thus, in the absence of a De-clarant, Millennium’s vote as owner of more than eighty (80) percent of the lots in the Oak Harbor Boater Service Area, was sufficient to approve and authorize the adoption of the second supplementary restrictions. From our review of the record before us, defendants’ argument fails in several respects.

Article 12.1 of the second supplementary restrictions states, as follows: “Upon recordation ..., all prior covenants, conditions and restrictions to which the Property was subject to prior to this amendment, as provided herein, are hereby revoked, rendered null and void and declared to be of no legal effect.” Thus, despite the use of the term “amendment,” in the above paragraph and throughout the document, the goal and actual effect of the second supplementary restrictions was revocation or termination of the restated and supplementary restrictions. Under Article 11.11 A of the supplementary restrictions, the restrictions continue to run with the land until the anniversary date in 2010, “and thereafter shall be automatically extended for successive terms of ten (10) years each,” unless at the end of- a term, the restrictions are “expressly terminated by an instrument signed by not less than seventy-five percent (75%) of the votes of the [Oak Harbor Property Owners’ Association, Inc.,]” not merely the owner or owners of the lots in the Oak Harbor Boater Service Area of the Oak Harbor PUD. The matter was never placed before the Oak Harbor Property Owners’ Association, Inc. |flfor a. vote. Therefore, the vote by Millennium, notwithstanding its ownership of more than eighty (80) percent of the lots in the Oak Harbor Boater Service Area, was not sufficient to terminate the supplementary restrictions, and thusj not sufficient to terminate the restated restrictions.

Furthermore, we find no merit in defendants’ alternative arguments. First, we find that the document relied on by plaintiffs does not reasonably support the finding below that the rights and duties of the “Declarant” for Oak Harbor Boater Service Area were specifically assigned to Azalea Lakes Partnership. We also note that the only evidence of a dissolution of Landmark was proffered, and defendants did not assign error to the trial court’s failure to admit the alleged evidence of dissolution. Thus, even if the second supplementary restrictions could be characterized as an amendment, the failure to obtain the Declarant’s approval for a sig-nifícant amendment was fatal to the second supplementary restrictions. Lastly, even if we assume that any remaining rights of the dissolved corporation passed “by operation of law” into oblivion, and the changes were merely amendments, Millennium failed to obtain the necessary execution, certification, and filing by the “President and Secretary of the [Oak Harbor Property Owners’ Association, Inc.],” of the alleged amendments. Articles 1.3, 1.8, & 11.11 C, supplementary restrictions. Therefore, we affirm the trial court’s holding that the second supplementary restrictions were invalid, and the court’s order to remove them from the parish public record.

1 CONCLUSION

For these reasons, we reverse the trial court’s finding that Azalea Lakes Partnership was the “Declarant” for the Oak Harbor Boater Service Area, and affirm the remainder of the judgment. The costs of the appeal are assessed to defendants, Millennium Group I, L.L.C. and Esplanade Title, Inc.

REVERSED IN PART AND AFFIRMED IN PART.

      . Both the restated and supplementary restrictions are registered in the public records of St. Tammany Parish.

      . Plaintiffs, pursuant to their authority to enforce applicable building restrictions, instituted the suit by filing a petition for an injunction and temporary restraining order against the defendants. See Article XIV, Section 2 B of the restated restrictions.

      . The defendants also argued that changes in the parish zoning passed after the restated and supplementary restrictions were filed in the public record effectively revoked those restrictions. However, it is well settled that zoning ordinances neither terminate nor supersede existing building restrictions. Annison v. Hoover, 517 So.2d 420, 422 (La.App. 1 Cir.1987), writ denied, 519 So.2d 148 (La.1988); see also Alfortish v. Wagner, 200 La. 198, 7 So.2d 708, 712 (1942); Cabibi v. Jones, 391 So.2d 461, 464 (La.App. 4 Cir.1980).

      . The judgment appealed held the second supplementary restrictions to be invalid, and ordered their removal from the public record.

      . Millennium did not assert or show that it owned property in the Oak Harbor PUD, other than the Oak Harbor Boater Service Area.

      . A transfer of the rights of the “Declarant” must be "specifically set forth in the instrument of succession or assignment or unless such rights, powers and duties pass by operation of law.” Article 1.8, supplementary restrictions. Although an assignment from Landmark to Azalea Lakes Partnership was filed in the public record by an act of deposit, the assignment is linked with specificity only to “Property” purchased by Azalea Lakes Partnership, which admittedly did not include the Oak Harbor Boater Service Area. A simple listing of the supplementary restrictions in an exhibit to the assignment is too general to effect a specific transfer of Declarant's rights to a different subdivision or tract.


author: CARTER, C.J.

text:
    SUCCESSION OF Mrs. Viola Mary Tabor Badeaux, Widow of J. Leslie BADEAUX.
    No. 2005 CA 0737.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 2006.

      Walter Antin, Jr., Jacques F. Bezou, Hammond, Counsel for Appellant, Teresa Mae Badeaux Fernandez.
    Richard F. Zimmerman, Jr., Travis B. Wilkinson, Baton Rouge, Counsel for Ap-pellees, Alvin Badeaux, Jr., Anthony C. Badeaux, Mary Claire Badeaux Elmore.
    Henry P. Julien, Jr., New Orleans, La., William W. Edelman, Metairie, Counsel for Appellee, Thomas L. Badeaux.
    Harold M. Block, Michelle A. LeBlanc, Thibodaux, Counsel for Appellees, Charles A. Badeaux, III, Emerite, Badeaux, Jean Paul Badeaux, Rene Badeaux, Michelle Bullock, Mary Patricia Crochet, Marie Fournier, Carole Glorioso, Margaret Ann Hebert, Irby J. Hornsby, Jr., and Louise Soudelier.
    Before: CARTER, C.J., DOWNING and GAIDRY, JJ.
   CARTER, C.J.

13This appeal from a judgment rendered in a succession proceeding concerns the payment of federal estate taxes in accordance with a testamentary clause directing that payment be made from cash the testator died possessed of. For the reasons that follow, we affirm the district court judgment.

FACTS AND PROCEDURAL HISTORY

Viola Mae Tabor Badeaux died testate on June 21, 2003. Mrs. Badeaux’s husband predeceased her, and she had no surviving children to inherit from her substantial estate. Mrs. Badeaux’s will provided for numerous particular legatees and named four universal legatees. Of the four named universal legatees, only Teresa Mae Badeaux Fernandez survived Mrs. Badeaux.

According to the detailed descriptive list as supplemented and amended, at the time of her death, Mrs. Badeaux had approximately $21,000 in a bank account. Mrs. Badeaux also owned an annuity with National Health Insurance Company (NHIC) valued at approximately half a million dollars and an annuity with American National Insurance Company (ANICO) valued at over $700,000. It is undisputed that both annuities were payable to Mrs. Badeaux upon demand. Mrs. Badeaux’s estate was the named beneficiary of the NHIC annuity. The ANICO annuity was payable to 17 named beneficiaries, not one of which was Mrs. Badeaux’s “estate.”

Mrs. Badeaux’s will contained the following provision:

I direct that all administrative expenses, attorney’s fees, court costs and federal estate tax incurred in connection with the settling of my estate be paid first out of cash that I die possessed of. I also direct that each | .legatee pay his or her Louisiana state inheritance tax. (Emphasis supplied.)

The cash in Mrs. Badeaux’s bank' account was insufficient to cover the administrative expenses, attorney’s fees, court costs, and federal estate tax incurred in connection with the settling of her estate. On October 21, 2004, the executor of Mrs. Badeaux’s estate, assuming a neutral position, filed a rule to show cause seeking a judgment deciding whether federal estate taxes should be apportioned among the particular cash legatees, as well as the annuitants of the ANICO policy.

Following a contradictory' hearing, the trial court entered judgment holding that Mrs. Badeaux’s will clearly and unambiguously directed that federal estate taxes are first to be paid out of cash she died possessed of. It then ruled that the NHIC annuity was a cash asset available for the payment of federal estate taxes. The district court further ruled that the federal estate taxes would not be apportioned among the particular legatees named in Mrs. Badeaux’s will and that the ANICO annuity was unavailable for the payment of federal estate taxes. Costs of the contradictory proceeding were assessed to Mrs. Fernandez.

After filing an appeal with this court, Mrs. Fernandez died. On March 17, 2006, this court signed an order substituting Charles Raymond Fernandez, the duly appointed testamentary executor of the Succession of Teresa Mae Badeaux Fernandez, for Teresa Mae Badeaux Fernandez.

Appellant assigned five errors for this court’s consideration. The first four errors can be resolved with the resolution of one issue: Are either of the two annuities owned by the testator cash that the testator “died possessed of,” as that phrase in used in the will, such that the cash proceeds of those | ^annuities are available for the payment of federal estate taxes? ■ The fifth and final assignment of error concerns the district court’s assessment of costs to Mrs. Fernandez.

DISCUSSION

Payment of Federal Estate Taxes

Appellant argues that the only cash Mrs. Badeaux died possessed of was that in her banking account, and because this amount was insufficient to pay the federal estate taxes, the legatees should bear the tax liability in proportion to their respective shares of Mrs. Badeaux’s estate as mandated by LSA-R.S. 9:2432 A, which provides:

If the deceased has made no provision in his testament for the apportionment of the tax among the persons interested in the estate, the tax shall be apportioned among them by the court in the proportion that the value of the interest of each person interested in the estate bears to the total value of the interests of all persons interested in the estate. The values used in determining the tax shall be used for this purpose.

The rule of apportionment of taxes provided for in LSA-R.S. 9:2432 must be followed unless a testator made provisions in her will to the contrary. Although a testator’s intent to free a legacy from apportionment must be clear and unambiguous, no specific words are required to shift the tax burden. A few simple words are .sufficient to indicate the testator’s intent and to accomplish the testator’s purpose. Succession of Russell, 590 So.2d 606, 612, writ denied, 591 So.2d 700. If there is any doubt respecting the testator’s direction as to who is to bear the estate taxes, the testator’s language will be construed so as to benefit those persons who are the object of her concern. Id.

|fiMrs. Badeaux’s inclusion of an unequivocal directive that federal estate taxes shall be paid from the cash she died possessed of clearly evidences intent that her residuary estate absorbs the federal taxes, if cash be available, so that particular legacies would not be burdened. The NHIC annuity was not only payable upon demand, but it was payable to Mrs. Ba-deaux’s estate immediately upon proof of death, placing cash in the hands of her executor. We cannot distinguish between cash on deposit in a bank account and cash on deposit with a life insurance company that is subject to withdrawal and payable to the estate of the depositor upon the owner’s death. Both are cash in the testator’s possession at the moment of death.

However, we reject appellant’s alternative argument that if this court finds the NHIC annuity is cash the testator died possessed of then it also must find that the ANICO annuity is cash the testator died possessed of. At the moment of death, the ANICO annuity placed cash in the hands of the seventeen named beneficiaries — not Mrs. Badeaux’s estate. Neither Mrs. Ba-deaux nor her estate died possessed of the cash in this annuity.

Assessment of Costs of the Rule to Show Cause

Louisiana Code of Civil Procedure article 2825 provides that in all contradictory succession proceedings, the court costs are to be paid by the party cast, unless the court directs otherwise. We find no error in the district court’s assessment of costs to Mrs. Fernandez.

CONCLUSION

We find that Mrs. Badeaux altered the statutory method of tax apportionment provided for in LSA-R.S. 9:2432 by clearly expressing her intent that federal taxes shall be paid from cash she died possessed of, which | includes the cash in the NHIC annuity. Costs of this proceeding are to be borne by Charles Ray Fernandez as executor of the succession of Teresa Mae Badeaux Fernandez.

AFFIRMED.


author: MCDONALD, J.

text:
    In re: Medical Review Panel for the Claim of James Randall BREWER.
    No. 2005 CA 0666.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 2006.

      Alice Estill, G. Allen Walsh, Anatole J. Plaisance, Baton Rouge, Counsel for Appellants Eloise K. Brewer and Teresa Brewer Hernandez.
    Aldric C. Poirier, Jr., James W. Vitrano, Mandeville, Counsel for Appellee Lake-view Regional Medical Center.

      Before: PARRO, MCDONALD and HUGHES, JJ.
   MCDONALD, J.

| ¿This is an appeal from a district court judgment sustaining an exception raising the objection of prescription. On November 29, 2002, Randall James Brewer was hospitalized at Lakeview Regional Medical Center and was standing for X-rays when he fell and was injured. When he was returned to his room, his family noticed that his face, arms and wrists were bloody, and the nurse explained what had happened. Mr. Brewer’s health declinéd and he died on December 30, 2002.

On December 1, 2003, Mr. Brewer’s widow, Elaine K. Brewer, and his two daughters, Teresa Brewer Hernandez and Mary Brewer Patrick (the plaintiffs), filed a petition in the district court asserting that Mr. Brewer sustained lacerations to his face, hands and arms from this fall that aggravated his medical condition and led to his death. LRMC filed an exception raising the objection of prematurity, as a medical review panel had not been convened. Thereafter, the parties entered into a consent judgment in which LRMC’s exception of prematurity was sustained and the petition was dismissed without prejudice.

The plaintiffs thereafter faxed and mailed a petition to convene a medical review panel to the Louisiana Division of Administration on December 23, 2003. The Louisiana Patient’s Compensation Fund mailed a letter to the plaintiffs’ counsel acknowledging receipt of the complaint. On January 2, 2004, LRMC filed a petition in the district court, asking that the case be assigned a docket number pursuant to La. R.S. 40:1299.47 D(4) so that court processes could be used for discovery, subpoenas and the like for lathe purpose of obtaining evidence for presentation to the medical review panel. LRMC also filed a peremptory exception raising the objection of prescription in district court pursuant to La. R.S. 40:1299.47 B(2)(a), asserting that the claim for malpractice filed by the plaintiffs was prescribed on its face. LRMC asserted that the date of alleged malpractice was November 29, 2002, that the plaintiffs’ complaint was deemed filed on December 23, 2003, the date they faxed and mailed a request for a review of a malpractice claim to the Division of Administration, thus more than a year had passed between the date of the alleged malpractice and the filing of the claim'.

After a hearing, the district court sustained the exception of prescription and dismissed the malpractice complaint with prejudice. Mrs. Brewer and Ms. Hernandez (the appellants) are appealing that judgment. The appellants assert that the district court erred in sustaining the exception of prescription as to the wrongful death action, because it was filed within one year of the date of Mr. Brewer’s death, and that the district court erred in sustaining the exception of prescription as to the survival action because Mr. Brewer continued to receive medical treatment from LRMC until his death and had a continuing professional relationship with LRMC until his death.

In response, LRMC asserts that the plaintiffs acknowledged they knew of the alleged malpractice on November 29, 2002, the date Mr. Brewer fell, which commenced prescription; therefore, the survival action is prescribed because they failed to file the medical malpractice complaint within one year of the alleged act, omission or neglect. Secondly, it asserts the plaintiffs’ wrongful death action should be prescribed as they had actual |4notice of the alleged malpractice prior to Mr. Brewer’s death. And finally, it asserts that the continuing treatment rule under the contra non valentem exception to prescription is inapplicable to this case because the plaintiffs were not prevented in any way from timely enforcing their rights.

Louisiana Revised Statute 9:5628 provides:

A. No action for damages for injury or death against any-physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing home duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1299.41(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such - claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.
B. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.
C. The provisions of this Section shall apply to all healthcare providers listed herein or defined in R.S. 40:1299.41 regardless of whether the healthcare provider avails itself of the protections and provisions of R.S. 40:1299.41 et seq., by fulfilling the requirements necessary to qualify as listed in R.S. 40:1299.42 and 1299.44.

Prescription statutes are intended to protect defendants against stale claims and the lack of notification of a formal claim within the prescriptive period. Ordinarily, the burden of proof is on the party pleading prescription, however, if on the face of the petition it appears prescription has run, the burden shifts to the plaintiff to prove a suspension or interruption of the prescriptive period. Brown v. Our Lady of The Lake Regional Medical Center, 00-2548 (La.App. 1 Cir. 12/28/01) 803 So.2d 1135, 1137.

|,THE SURVIVAL ACTION

La. C.C. art. 2315.1 grants to designated beneficiaries a cause of action to recover the damages that a person suffered and would have been entitled to recover from a tortfeasor, if the person had lived. This is ordinarily called the survival action. This cause of action survives the death of the injured party and passes to the beneficiaries as an inheritable propeiby right. The survival action comes into existence simultaneously with the commission of the tort and is transmitted to the beneficiaries upon the victim’s death. The survival action permits recovery only for the damages suffered by the victim from the time of the injury to the moment of death. The elements of damage for the survival action are pain and suffering, loss of earnings and other damages sustained by the victim up to the moment of death. Pierre v. Lallie Kemp Charity Hospital, 515 So.2d 614, 618 (La.App. 1 Cir.), writ denied, 515 So.2d 1111 (La.1987); La. C.C. art. 2315.1.

The survival action, which is a derivative of the malpractice victim’s action, is linked to the inception of the tortuous act, omission or neglect. The action is based on the victim’s right to recovery-being transferred by operation of law to the beneficiary. The action is dependent on the victim having a viable malpractice action on the date of death. Taylor v. Giddens, 618 So.2d 834, 840 (La.1993). (Footnote omitted).

Mr. Brewer’s injury occurred on November 29, 2002, and the survival action claim was filed on December 23, 2003, more than one year after the injury. Thus, the district court correctly found that the survival action had prescribed.

THE WRONGFUL DEATH ACTION

Louisiana Civil Code article 2315.2 grants to designated beneficiaries the right to recover from a tortfeasor such damages as the beneficiaries have | ^suffered if a person dies as a result of a tort. This cause of action is ordinarily called the wrongful death action. The wrongful death action does not arise until the injured person dies. The wrongful death action is intended to compensate the beneficiaries for compensable injuries suffered from the moment of death and thereafter. Pierre v. Lallie Kemp Charity Hospital, 515 So.2d at 617; La. C.C. art. 2315.2

Wrongful death actions are not within the scope of La. R.S. 9:5628, which governs the time plaintiffs have to assert medical malpractice claims. The prescriptive period for a wrongful death action is controlled by La. C.C. art. 3492, the one-year libera-tive period applicable to delictual actions. Brown v. Our Lady of The Lake Regional Medical Center, 803 So.2d at 1137; Taylor v. Giddens, 618 So.2d at 840-41. Thus, the one-year prescriptive period for the wrongful death action commenced on the day of Mr. Brewer’s death, December 30, 2002. This suit was filed on December 23, 2003, within one year of Mr. Brewer’s death. Thus, the district court erred in finding that the wrongful death claim by the plaintiffs had prescribed.

CONCLUSION

Therefore, for the foregoing reasons, that portion of the district court judgment sustaining the exception of prescription on the plaintiffs’ survival action is affirmed; that portion of the judgment which sustained the exception of prescription on the plaintiffs’ wrongful death action is reversed; and the case is remanded for further proceedings pending the decision of the medical review panel. See Taylor v. Giddens, 618 So.2d at 841. Costs are assessed one-half to the plaintiffs and one-half to LRMC.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

PARRO, J., concurs.

      . We note that the parties refer to the date of filing as December 22, 2003, and also as December 23, 2003. The record indicates both dates on various documents. The facsimile cover sheet indicates a date of December 22, 2003. However, the letter from the PCF acknowledging receipt of the fax filing confirms a filing date of December 23, 2003. We have used that date for purposes of this appeal.

      . Maiy Patrick Brewer is not a party to the appeal.