author: PAINTER, Judge.

text:
    Linda MITCHELL v. ALLIANCE COMPRESSORS.
    No. 05-1186.
    Court of Appeal of Louisiana, Third Circuit.
    April 5, 2006.

      George A. Flournoy, Flournoy & Dog-gett (APLC), Alexandria, LA, for Plaintiff-Appellee, Linda Mitchell.
    Mark A. Watson, Todd A. Vance, Stafford, Stewart & Potter, Alexandria, LA, for Defendanb-Appellant, Alliance Compressors.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

_JjIn this workers’ compensation case, Defendant, Alliance Compressors, appeals the finding of the workers’ compensation judge (WCJ) that Plaintiff, Linda Mitchell, suffered an occupational disease. Alliance Compressors further appeals the WCJ’s subsequent awards of supplemental earnings benefits (SEB), medical benefits, vocational rehabilitation, and penalties and attorney’s fees. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Mitchéll began work at Alliance Compressors in August 1999 as an assembly worker in the kitting department. In May of 2001, Mitchell injured her left shoulder at work and was treated by Dr. John P. Sandifer and Dr. Baer Rambach. Dr. Rambach released her to return to work in September 2002, and she returned to work at Alliance in the sub-assembly department.

In April 2003, Mitchell was assigned to the scroll department. In that department, she worked as an op-10 operator. In that capacity, Mitchell was required to gather the parts as they came down a conveyor belt in a basket holding twelve parts and to manually lift them into a machine. The parts are called scrolls and weigh about eight to twelve pounds each. Mitchell testified that the machine was about shoulder height for her. When the scrolls exited the machine, Mitchell had to spray them off and carry them to a different room. Once the parts were brought back from the other room, Mitchell had to put them back into the basket and push them back out on the line so that they could go to the next area. This work was of a repetitive nature. Mitchell’s job duties in the scroll department also involved “tooling” her machine which entailed changing out damaged tools in the machine using tools that weighed up to seven pounds. Mitchell was also required to clean the machine several 1 {¡times a day and to sweep around her area. Mitchell’s normal shift was from 6:00 a.m. to 6:00 p.m. on Friday, Saturday, and Sunday.

After being in the scroll department for several months, Mitchell began experiencing problems in her upper back and shoulders. On January 28, 2004, she returned to Dr. Sandifer. He prescribed Bextra and told Mitchell she could return to work. She did return to work, but testified that she was still in pain. On February 28, 2004, Mitchell felt shooting pains from the upper-center part of her back, through both of her shoulders and neck. At that time, she reported the injury, filled out an incident report, and went to the hospital.

Alliance Compressors set up an appointment for Mitchell with Dr. Mary Long on March 2, 2004. Dr. Long diagnosed back pain and prescribed a muscle relaxant and analgesics. Dr. Long also recommended a physical therapy consult. Mitchell saw Dr. Long on March 4 and March 5, 2004. Dr. Long ordered an MRI and x-ray of the thoracic spine. These studies were done on March 9, 2004.

Mitchell’s last day of work at Alliance was March 5, 2004. By letter dated March 15, 2004, Mitchell was fired by Alliance.

Mitchell saw Dr. M.E. Milstead on May 3, 2004 and continued under his care through the trial of this matter. Dr. Mil-stead diagnosed Thoracic Outlet Syndrome (TOS) and recommended physical therapy. Thoracic Outlet Syndrome is a condition where the blood vessels and/or nerve bundles coming out of the neck and underneath the collarbone are compressed or irritated. Dr. Milstead also ordered an EMG and MRIs. The EMG studies were done on May 17, 2004 by Dr. David Adams and were normal. There was no evidence of radiculopathy, neuropathy, myopathy, or any nerve injury or damage. The MRIs of the cervical spine and both shoulders were performed on May 20, 2004 and were normal. She also had negative Ti-nel’s and pAdson’s tests. However, Dr. Milstead was firm in his diagnosis of TOS. His progress report, dated May 24, 2004, indicated his opinion that her symptoms were related to the thoracic outlet since all of the work-up looking for disc problems was negative. On March 3, 2005, Dr. Mil-stead’s exam did show a strong positive Tinel’s sign over both supraclavicular regions with positive Adson’s tests on both sides.

On February 1, 2005, Mitchell filed a first supplemental and amending claim, asserting that she was disabled as of March 1, 2004, as a result of “an occupational disease and/or repetitive work duties in her work environment[.]”

Following trial of this matter, the WCJ rendered judgment in favor of Mitchell, finding that her wages were $504.70 per week; that she was entitled to SEB based on zero earnings, beginning March 6, 2004 and continuing in accordance with La.R.S. 23:1221(3), together with legal interest from due date; and that Alliance Compressors was responsible for payment of all work related medical expenses incurred prior to April 15, 2005 in the full amount of each expense, without any reduction, together with legal interest from due date. The judgment also ordered Alliance Compressors to pay $4,000.00 in penalties for failure to pay indemnity and medical benefits, to provide meaningful vocational rehabilitation, and to pay attorney’s fees in the amount of $7,500.00.

Alliance Compressors now appeals and asserts three assignments of error. First, Alliance Compressors urges that the WCJ erred in finding that Mitchell established that she sustained an occupation disease because Mitchell did not introduce any evidence that her condition was characteristic of and peculiar to her trade, business or occupation. Second, Alliance Compressors argues that the WCJ erred in finding that Mitchell was entitled to SEB, medical benefits, and vocational rehabilitation. Third, Alliance Compressors asserts that the WCJ erred in finding that |4it did not reasonably controvert Mitchell’s claim such that the awards of penalties and attorney’s fees were improper.

DISCUSSION

At the outset, we are mindful that the standard of review for factual findings in a workers’ compensation case is the manifest error or clearly wrong standard of review. Thomas v. Alliance Compressors, 04-1034 (La.App. 3 Cir. 12/8/04), 889 So.2d 424, writ denied, 05-0086 (La.3/18/05), 896 So.2d 1010 (citing Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556). Thus, it is not for us to determine whether the trier of fact was right or wrong, but whether the conclusion was a reasonable one. Id. Therefore, if the conclusions of the factfinder are reasonable in light of the record reviewed in its entirety, we cannot reverse, even if we are convinced that we would have weighed the evidence differently. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.1990).

Louisiana Revised Statutes 23:1031.1(B) governs workers’ compensation claims for occupational disease and provides, in pertinent part, as follows:

An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease. Occupational disease shall include injuries due to work-related carpal tunnel syndrome. Degenerative disc disease, spinal stenosis, arthritis of any type, mental illness, and heart-related or peri-vascular disease are specifically excluded from the classification of an occupational disease for the purpose of this Section.

A plaintiff bears the burden of proving, by a preponderance of the evidence, that the disease at issue was contracted during the course of her employment and that the disease was the result of the nature of the work performed. Thomas, 889 So.2d 424 (citing Dunaway v. Lakeview Regional Med. Ctr., 02-2313, p. 5 (La.App. 1 Cir. 8/6/03), 859 So.2d 131, 134). In Comeaux v. Star Enterprise/Motiva Enterprise, 02-24, p. 8 (La.App. 1 Cir. 12/20/02), 836 So.2d 359, 364 (citations omitted), the court stated:

The causal link between his illness and work-related duties must be established by a reasonable probability. The claimant will fail if he shows only a possibility that the employment caused the disease, or that other causes not related to the employment are just as likely to have caused the disease.

We are further mindful that, “[i]n Louisiana, it is well settled that an employee’s disability is compensable if a pre-existing condition or disease is activated or precipitated into a disabling manifestation as a result of work.” Austin v. Howard Discount Stores, Inc., 569 So.2d 659, 664 (La.App. 2 Cir.1990) (citing Hammond v. Fidelity & Casualty Co. of New York, 419 So.2d 829 (La.1982) and Duncan v. State, DOTD, 556 So.2d 881 (La.App. 2d Cir. 1990)).

In this case, Alliance argues that there was no evidence to show that TOS is characteristic of or peculiar to Mitchell’s trade or occupation and makes much of Dr. Mil-stead’s testimony that TOS is common, specifically in females, and in overhead activities such as fixing hair and applying make-up. Alliance also argues that the TOS manifested itself less than twelve months into Mitchell’s work in the scroll department such that it is presumed that the TOS was not caused by her job duties. We find these arguments to be without merit.

We first consider Alliance’s argument that it is presumed that the TOS was not caused by Mitchell’s job duties because it manifested itself in December of 2003, less than twelve months after Mitchell was transferred to the scroll department in April of 2003. This presumption, however, is rebuttable and can be overcome if a claimant can prove “by a preponderance of the evidence that the disease was contracted during her employment, specifically proving that there is a disability which is related to an employment-related disease, the disease was contracted during the course of | ^employment, and the disease is a result of the work performed.” Johnson v. Johnson Controls, Inc., 38,495, p. 12 (La.App. 2 Cir. 5/12/04), 873 So.2d 923, 931-32 (citing Ball v. Wendy’s Intern. Inc., 36,922 (La.App.2d Cir.03/05/03), 839 So.2d 1208, writ denied, 03-0978 (La.05/30/03), 845 So.2d 1056). The WCJ can consider medical reports admitted into evidence or expert testimony to determine whether a claimant has overcome the presumption. Id. (citing Fite v. Louisiana Title Co., 02-2607 (La.06/27/03), 852 So.2d 983).

Here, the WCJ made no mention of the presumption stated in La. R.S. 23:1031.1(D). However, the record shows that Mitchell’s symptoms manifested themselves well within the initial twelve month period of her employment in the scroll department. With this presumption in place, Mitchell had to prove by a preponderance of the evidence that her TOS was contracted during her employment. Based on the medical records introduced into evidence and the deposition testimony of Dr. Milstead, the WCJ concluded that Mitchell had TOS and that it was made symptomatic by her employment at Alliance. Even though the WCJ may not have considered the presumption in favor of Alliance, we cannot say that the final determination on this particular issue was in error because we find no manifest error in the WCJ’s conclusion that Mitchell suffered from TOS and that Mitchell carried her burden of proving that her employment aggravated that condition.

This circuit has repeatedly recognized that TOS “is akin to carpal tunnel syndrome and is included as an occupational disease under La.R.S. 23:1031.1.” Doumite v. KVHP-Fox 29, 04-427, pp. 6-7 (La.App. 3 Cir. 10/20/04), 884 So.2d 1283, 1288. The record in this case indicates that Mitchell gradually began experiencing pain in her upper back and shoulder while working in the scroll department at Alliance, where her duties included repetitive lifting and pulling of |7parts. She was examined by several doctors before being diagnosed with TOS by Dr. Milstead in May of 2004. Dr. Milstead was unequivocal in his testimony that the work Mitchell was doing definitely aggravated the thoracic outlet and brought on the symptoms of TOS. There was absolutely no evidence that her condition was anything other than TOS. Based on our review of the record in its entirety, we find that there is enough evidence to find that Mitchell established a causal link between her illness and her work-related duties by a reasonable probability. Therefore, we find no manifest error in the WCJ’s finding that Mitchell suffered from a compensable occupational disease and that she met her burden of proving that her employment caused the symptoms of TOS to manifest themselves.

Alliance next argues that the WCJ erred in finding that Mitchell was entitled to SEB, medical expenses, and vocational rehabilitation. This argument is based on Alliance’s position that Mitchell failed to prove that she suffered an occupational disease. Alliance apparently does not contest the award at a zero rate beginning March 6, 2004, but contests the fact that it was awarded at all. Since we find that Mitchell did prove that she suffered from an occupational disease and that it was related to her work duties, this assignment of error is without merit. And, we note, as did the WCJ, that Alliance did not show that it had jobs available or offered any position to Mitchell that she could perform,' what the jobs paid, or that Mitchell refused said jobs. Further, Alliance offered no vocational rehabilitation to assist Mitchell in returning to work.

Finally, in its third assignment of error, Alliance argues that the WCJ erred in finding that it did not reasonably controvert this claim and in awarding penalties and attorney’s fees as a result thereof. We disagree. “The determination of whether an employer should be cast with penalties and attorney fees is essentially a question of |sfact, and the trial court’s finding must not be disturbed on appeal absent manifest error.” Thomas, 889 So.2d at 428. The employer has a continuing duty to investigate, assemble, and assess factual information before it denies benefits. Id. (citing George v. Guillory, 00-591(La.App. 3 Cir. 11/2/00), 776 So.2d 1200). It is this court’s duty to “ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed.” Doumite, 884 So.2d at 1291 (quoting Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La.12/1/98), 721 So.2d 885, 890).

Alliance refused to pay benefits based on its assertion that there was no accident and that there was no proof of an occupational disease. Here, as in Thomas, it is clear that Alliance had knowledge that Mitchell sustained an injury. Alliance sent Mitchell to Dr. Long, who recommended a physical therapy consult on March 2, 2004. No such consult was ever approved by Alliance. Alliance did receive copies of Dr. Milstead’s reports. Even after Dr. Mil-stead diagnosed TOS, Alliance never inquired as to what disability status Dr. Milstead placed on Mitchell or what work restrictions he placed upon her. Nor did Alliance send Mitchell back to Dr. Long or another doctor to determine if a causal relationship existed or to refute Dr. Mil-stead’s diagnosis. Therefore, we find that Alliance failed to meet its duty to investigate Mitchell’s claim. Accordingly, we find no manifest error in the WCJ’s conclusion that Alliance failed to reasonably controvert Mitchell’s claim for benefits and his award of penalties and attorney’s fees in this matter.

| aMitchell does not ask for additional attorney’s fees for work done on the present appeal, and no answer has been filed requesting such relief. Therefore, we are precluded from awarding any additional attorney’s fees.

DECREE

For all of the aforementioned reasons, the judgment of the WCJ is affirmed in its entirety. Costs of this appeal are assessed to Defendant-Appellant, Alliance Compressors.

AFFIRMED.

AMY, J., dissents.


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    INDUSTRIAL SCREW & SUPPLY CO., INC. v. WPS, INC.
    No. 05-1188.
    Court of Appeal of Louisiana, Third Circuit.
    April 5, 2006.

      Jefferson J. Moss, Jr., Moss & Associates, Lafayette, LA, for Defendant/Appellant, WPS, Inc.
    Staci Knobloch Tabor, Baton Rouge, LA, for Plaintiff/Appellee, Industrial Screw & Supply Co., Inc.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   AMY, Judge.

hln this suit on an open account, the plaintiff filed a motion for summary judgment to collect a delinquent debt, legal interest, court costs, and attorney’s fees. The trial court granted the motion. The defendant appeals the trial court’s award of attorney’s fees. For the following reasons, we affirm.

Factual and Procedural Background

The record indicates that the plaintiff, Industrial Screw and Supply Co., Inc. (hereinafter “Industrial”), sold and delivered to the defendant, WPS Inc. (hereinafter “WPS”), anchors and bolts on open account between May and June 2004. After WPS did not respond to Industrial’s initial demand for payment, Industrial filed a Petition in Suit on Open Account on November 17, 2004, stating that WPS owed it “$26,020.86 together with judicial interest, court costs and reasonable attorney’s fees[.]” It further stated that “[t]he Defendant has made only the payments, if any, shown on the attached statement, and has failed to pay this account, or the balance thereon after demand. Defendant additionally owes petitioner reasonable attorney fees under the provisions of Louisiana R.S. 9:2781.” In the final paragraph of its petition, Industrial prayed “for the sum of $27,817.60, together with legal interest until paid, court costs and reasonable attorney fees.”

In December 2004, WPS made a payment on the unpaid account balance in the amount of $6,954.00. In its answer, WPS denied that it owed $27,187.60 or reasonable attorney’s fees. On March 4, 2005, Industrial filed a motion for summary judgment, along with a memorandum in support of the motion and an affidavit from its account representative. WPS subsequently presented Industrial with a check for $7,271.06 and a check for $11,795.40 to pay the account balance in full.

| gAfter an April 19, 2005 hearing, the trial court granted the motion for summary judgment, awarding “judicial interest on defendant’s debt due on open account in the amount of $26,020.86 from date of judicial demand until finally paid, attorney fees deemed reasonable by this court in the amount of 25% or more specifically $6,505.22, and for all costs of these proceedings.” An amended summary judgment determined that the amount of interest owed was $385.01.

WPS appeals, designating the following assignments as error:

1. The Court erred by considering the Memoranda of counsel and exhibits attached thereto as soureefs] of evidence on which to base its decision.
2. The Court erred in finding that no genuine issue of material fact existed and that Plaintiff was entitled to a judgment as a matter of law.
3. The Court erred in awarding attorney’s fees where the demand in the attorney’s demand letter and in the Petition were for more than the Plaintiff was owed[,] thereby not complying with [La.JR.S. 9:2781.
4. The Court erred in finding 25% attorney fees “reasonable” without any evidence to support that finding.
5. The Court erred in using an untimely filed Affidavit attached to a “Pre-hearing Memorandum in Support of Motion for Summary Judgment” as support to award 25% attorney fees to Plaintiff over Defendant’s objection that the assertion of the agreement between client and attorney to pay 25% expanded the pleadings in that it was not pled in the Petition.
6. The Court erred in granting the Plaintiffs Motion for Summary Judgment for attorney fees when there were genuine issues of fact related to the level and amount of legal services sufficient to justify an award of 25% attorney fees that the Defendant’s attorney protested was excessive.
7. The Court erred in applying the provisions of [La.]R.S. 9:2781 in determining that the Plaintiff was entitled to reasonable attorney’s fees and/or attorney fees fixed at 25% of the amount awarded based solely on an agreement between the Plaintiff and its attorney instead of using the analysis provided for by the Rules of | ^Professional Conduct as set forth in Leenerts Farms, Inc. v. Rogers[, 421 So.2d 216 (La.1982)].

Discussion

Louisiana Revised Statutes 9:2781

WPS questions the granting of summary judgment in favor of Industrial, asserting that attorney’s fees were inappropriately awarded under La.R.S. 9:2781. In particular, WPS points to Industrial’s initial demand letter which, it asserts, sets forth an allegedly inaccurate figure as the amount due. In support of its argument, WPS cites City of Bossier City v. Sims, 486 So.2d 1122 (La.App. 2 Cir.1986), wherein the second circuit concluded that attorney’s fees were inappropriate under La. R.S. 9:2781 where a demand letter failed to correctly set forth the amount owed.

Louisiana Code of Civil Procedure Article 966(B) provides that a motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” On appeal, summary judgments are considered under the de novo standard of review. Champagne v. Ward, 03-3211 (La.1/19/05), 893 So.2d 773. The appellate court considers the same criteria as did the trial court. Id.

With regard to open accounts, La.R.S. 9:2781 provides for the award of attorney’s fees as follows:

A. When any person fails to pay an open account within thirty days after the claimant sends written demand therefor correctly setting forth the amount owed, that person shall be liable to the claimant for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant. Citation and service of a petition shall be deemed written demand for the purpose of this Section. If the claimant and his attorney have expressly agreed that the debt- or shall be liable for the claimant’s attorney fees in a fixed or determinable amount, the claimant is entitled to that amount 14when judgment on the claim is rendered in favor of the claimant. Receipt of written demand by the person is not required.
B. If the demand is forwarded to the person by first class mail to his last known address, a copy of the demand shall be introduced as evidence of written demand on the debtor.
C. If the demand is made by citation and service of a petition, the person shall be entitled to pay the account without attorney fees by delivering payment to the claimant or the claimant’s attorney within ten days after service of the petition in city courts and fifteen days after service of the petition in all other courts.

WPS questions the award of attorney’s fees as, it contends, Industrial’s demand letter of September 30, 2004 alleged an unpaid account balance of $27,036.98. Since WPS asserts that this figure is in error, it argues that the demand did not correctly set forth the amount owed as is required for the recovery of attorney’s fees under La.R.S. 9:2781(A). Thus, the award of attorney’s fees was in error.

Our review of Industrial’s motion for summary judgment and its supporting documents indicates that summary judgment was appropriate. Notwithstanding any alleged discrepancy in the amount set forth in the initial September 2004 demand letter, the petition serves as a further basis for recovery of attorney’s fees under La.R.S. 9:2781(C).

As indicated above, Industrial’s petition alleged that WPS “owes petitioner $26,020.86, together with judicial interest, court costs and reasonable attorney’s fees[.]” The petition’s prayer seeks judgment “for the sum of $27,817.60, together with legal interest until paid, court costs and reasonable attorney fees.” The basis for these figures are reflected in Industrial’s statement of WPS’s account, dated November 9, 2004, which was attached to the petition and filed into the record. Mirroring the petition, the statement lists the unpaid account balance as $26,020.86. It also lists “unpaid finance charges” of $1,796.74. The statement reflects a “new |abalance” of $27,817.60, ie., the unpaid balance combined with the unpaid finance charge. The unpaid finance charges were apparently not pursued by Industrial as the $26,020,86 unpaid account balance is reflected in the trial court’s judgment and amended judgment.

The petition was filed on November 17, 2004 and reflects WPS’s service information. According to La.R.S. 9:2781(C), WPS had fifteen days from service of the petition to satisfy the balance in order to avoid imposition of attorney’s fees. However, according to the affidavit of Rick Crew, Industrial’s account representative, a balance of $19,066.46 remained at the time Industrial filed its motion for summary judgment in March 2005. Thus, it is apparent that the account balance due was not paid within fifteen days of the service of the petition as is necessary to avoid the imposition of attorney’s fees under La.R.S. 9:2781(C). WHPS’s opposition to the motion for summary judgment, which lacks documentary evidence, does not indicate otherwise. Accordingly, the trial court correctly entered summary judgment in favor of Industrial pursuant to La.R.S. 9:2781.

We also note that there is no merit in WPS’s assertion that the trial court erroneously relied on evidentiary support filed with Industrial’s supplemental memorandum in support of motion for summary judgment on April 13, 2005. WPS contends that this support was untimely as it was filed within fifteen days of the April 19, 2005 hearing on the motion. See La. Code Civ.P. art. 966(B). Despite this objection on appeal, the record contains no indication that WPS questioned the timeliness of the submission below. Furthermore, its own submission in opposition to the motion for summary judgment was not filed until April 15, 2005. Again, the opposition contains no objection to the' timeliness of Industrial’s filing nor does it | ^allege that it was hindered by the submission. Accordingly, we do not find that the trial court was required to exclude the submissions. See Peoples State Bank v. Hwy One Crawfish, Inc., 99-1393, p. 8 (La.App. 3 Cir. 5/24/00), 771 So.2d 101, 107, writ denied, 00-2842 (La.12/8/00), 776 So.2d 469 (wherein a panel of this court observed that “[o]nly if there is evidence that the opposing party will be prejudiced by the late introduction of the affidavits is it reversible error for a trial court to allow the affidavits to be filed.”).

Amount of Attorney’s Fees

The trial court awarded twenty-five percent of the unpaid $26,020.86 account balance, or $6,505.22, in attorney’s fees. WPS argues that the figure awarded is excessive and that the trial court failed to adequately consider the reasonableness of the award given the amount of work required for collection of the unpaid balance.

Again, our review of the record reveals no error in the trial court’s judgment. In particular, we reference La.R.S. 9:2781(A), which provides that: “If the claimant and his attorney have expressly agreed that the debtor shall be liable for the claimant’s attorney fees in a fixed or determinable amount, the claimant is entitled to that amount when judgment on the claim is rendered in favor of the claimant.” The updated affidavit of Rick Crew, Industrial’s account representative, explained that “Mover has an express agreement with its attorney that attorney fees for suits on open account are 25% of the principal amount paid by a debtor with said attorney fees to ultimately be collected from the debtor.” Again, while WPS argued that the amount of attorney’s fees pursued by Industrial was excessive and erroneously argued that its [ .¡.pursuit of a percentage of attorney’s fees was an expansion of the pleadings, WPS failed to object to the actual timeliness of the filing of the amended affidavit. Further, it failed to produce evidence negating the affidavit’s assertion. Thus, the trial court did not err in considering the agreement between Industrial and its attorney, particularly in light of La.R.S. 9:2781(A)’s provision for an award based on such an agreement. Finally, the record itself supports the reasonableness of the award. The record reflects that Industrial issued a demand letter, filed suit, followed that suit by a motion for summary judgment and supported that motion with memoranda and associated documentation. The $6,505.22 awarded for attorney’s fees is reasonable.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . WPS asserts that the request for a specific percentage of the award as attorney’s fees was an expansion of the pleadings. This assertion is without merit insofar as Industrial’s petition requests that it be awarded "reasonable attorney fees under the provisions of Louisiana R.S. 9:2781." Again, this statute makes specific provision for the moving party and its attorney to negotiate a fixed or determinate amount.


text:
    Irving CEASAR, Ronald Foster, Jerry Corsey v. Sheriff Sidney HEBERT, Parish of Iberia, and Deputy Glynn Reaux.
    No. 05-1195.
    Court of Appeal of Louisiana, Third Circuit.
    April 5, 2006.

      Mark M. Gonzalez, New Orleans, LA, for Plaintiff-Appellant, Jerry Wayne Cor-sey.
    Joseph L. Ferguson, New Iberia, LA, for Defendants-Appellees, Sheriff Sid Hebert and Glynn Reaux.

      Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

liThe Plaintiff, Jerry Corsey, appeals the trial court’s judgment granting summary judgment in favor of Sid Hebert in his capacity as Sheriff of Iberia Parish and Glynn Reaux in his capacity as Deputy Sheriff. On appeal, he contests the trial court’s rulings with regard to the applicability of La.R.S. 15:708. For the following reasons, we affirm.

FACTS

Corsey was a prisoner in the custody of Iberia Parish Sheriff Sid Hebert and was housed in the Iberia Parish Jail, when he volunteered to participate in a litter abatement program. In the course of this participation, he was traveling in a vehicle driven by Deputy Glynn Reaux of the Iberia Parish Sheriffs Department and owned by the Iberia Parish Government (“the Parish”). While attempting to cross Louisiana Highway 90, the vehicle was involved in a collision with a vehicle operated by Beldon Hutchinson. The prisoners filed two suits which were consolidated at the trial level. The Iberia Parish Government and Sheriff Sid Hebert°each filed a motion for summary judgment asserting that they were immune from liability for ordinary negligence under La.R.S. 15:708 and that no material issue of fact remained but that the injuries to the Plaintiffs were not the result of an intentional or grossly negligent act of the Parish or the Sheriff or his agent or employee. The trial court granted the motions. Corsey appeals the judgments in favor of the Sheriff and his Deputy-

J^DISCUSSION

Constitutionality ofLa.R.S. 15:708

Corsey first asserts that the trial court erred in failing to consider his plea of unconstitutionality. The minutes of the trial court state that the court found that the question of constitutionality was not in the pleadings, that the Attorney General was not served, and that, as a result, the issue was not properly before the court.

On appeal, Corsey argues that he raised the constitutionality of La.R.S. 15:708 in his memorandum in opposition to the summary judgment motions and that he had, two weeks before the hearing, requested service on the Attorney General and faxed a copy of the notice and memorandum to the Attorney General’s office.

While the Attorney General must be served only where constitutionality is attacked in a declaratory judgment action, he should be given notice and an opportunity to be heard and to participate in all proceedings in which constitutionality is raised. However, constitutionality must, in all cases, be specially pled. Vallo v. Gayle Oil Co., Inc., 94-1238 (La.11/30/94), 646 So.2d 859.

While there is no single procedure for assailing the constitutionality of a statute, it has long been held that the unconstitutionality of a statute must be specially pleaded and the grounds for the claim particularized. Reeder v. North, 97-0239, p. 14 (La.10/21/97), 701 So.2d 1291, 1299; Williams v. State, Dept. of Health & Hospitals, 95-0713, p. 4 (La.1/26/96), 671 So.2d 899, 901; Vallo v. Gayle Oil Co., Inc., 94-1238, p. 8 (La.11/30/94), 646 So.2d 859, 864-65. This court has articulated this burden as composed of three tiers: “First of all, the plea of unconstitutionality must first be made in the trial court. Next, the plea of unconstitutionality must be specially pleaded. Finally, the grounds outlining the basis of uncohstitutionality must be particularized.” Williams, 95-0713 at pp. 4-5, 671 So.2d at 902 (internal citations omitted). These procedural rules exist to afford interested parties sufficient time to brief and prepare arguments defending the constitutionality of the challenged statute. Vallo, 94-1238 at p. 9, 646 So.2d at 865. This opportunity to fully brief and argue the issue provides the trial court with thoughtful and complete arguments relative to the issue of constitutionality and furnishes reviewing courts with an | aadequate record upon which to adjudge the constitutionality of the statute.

Istre v. Meche, 00-1316, p. 4 (La.10/17/00), 770 So.2d 776, 779.

In the case before us, the unconstitutionality of La.R.S.15:708 was raised only in a memorandum in opposition to the Defendants’ motions for summary judgment. It was not specially pled. Therefore, the court correctly concluded that the issue of the unconstitutionality of La.R.S. 15:708 was not properly before it. Therefore, we will not consider Corsey’s arguments with regard to the unconstitutionality of La.R.S. 15:708(b).

Prisoner Status

Corsey next asserts that the trial court erred in applying La.R.S. 15:708 to him because he was not a prisoner at the time suit was filed. .Louisiana Revised Statutes 15:708 provides, in pertinent part, that:

A prisoner, who participates in a litter abatement or collection program pursuant to this Paragraph, shall have no cause of action for damages against the sheriff conducting the program or supervising his participation therein, nor against any employee or agent of such sheriff, for any injury or loss suffered by him during or arising out of his participation in the program, if such injury or loss is a direct result of the lack of supervision or act or omission of the sheriff or his employee or agent, unless the injury or loss was caused by the intentional or grossly negligent act or omission of the sheriff or his employee or agent. The sheriff shall not be liable for any injury caused by the prisoner, unless the gross negligence or intentional act of the sheriff or his employee or agent was a substantial factor in causing the injury. No provision hereof shall negate the requirement to provide a prisoner with necessary medical treatment as statutorily required.

We find no merit in Corsey’s argument in this regard. Corsey’s injury occurred while he was a prisoner. His injury arose out of participation in the litter abatement program, and the fact that he has since been released does not affect the immunity ^afforded by La.R.S. 15:708 for injuries arising out of a prisoner’s participation in a litter abatement program. Normally, a cause of action arises when an injury occurs. Quick v. Murphy Oil Co., 446 So.2d 775 (La.App. 4 Cir.1982), writs denied, 447 So.2d 1074 (La.1984). However, in this case, at the time the cause of action would have arisen, Corsey was a prisoner. Therefore, the provisions of La.R.S. 15:708 prevented accrual of a cause of action arising out of Corsey’s participation in the litter abatement program.

Medical Treatment

Finally, Corsey cites the provision of La.R.S.15:708(b) which states that: “No provision hereof shall negate the requirement to provide a prisoner with necessary medical treatment as statutorily required.” He argues that, under this provision, he must be provided with medical treatment even though he is no longer incarcerated.

The admonition with regard to medical treatment set out in La.R.S. 15:708 does not arise out of the injury contemplated by the statute but rather out of the government’s general obligation to provide reasonable medical care for those over whom it has custody due to incarceration. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Elsey v. Sheriff of Parish of East Baton Rouge, 435 So.2d 1104 (La.App. 1 Cir.), writ denied, 440 So.2d 762 (La.1983). Our reading of the statute convinces us that the purpose of the provision of La.R.S. 15:708 with regard to medical treatment is to alert the correctional facility that the obligation to provide medical treatment cannot be circumvented by the application of this statute’s immunity from suit as provided by this statute. Prisoners must be provided reasonable medical treatment as needed while incarcerated regardless of the origin of the injury or condition requiring care. We find nothing in La.R.S. 15:708 which would extend this |sobligation beyond the period of incarceration because of injuries covered by the statute.

Summary Judgment

The minutes of the trial court reflect that, after hearing arguments with regard to the motions for summary judgment, the court ruled, with regard to the Sheriff and his Deputy, that there was: “[N]o proof or material question of fact that they were guilty of any gross negligence and so the motion for summary judgment is granted at plaintiffs costs.” Although Corsey has not addressed the propriety of the summary judgment except as to the applicability of La.R.S. 15:708, we will review the trial court’s decision out of an abundance of caution.

The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. If the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a material factual issue remains. The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533, (La.2/20/04), 866 So.2d 228; Hardy v. Bowie, 98-2821, pp. 4-5 (La.9/8/99), 744 So.2d 606, 609-610.
Our review of a grant or denial of a motion for summary judgment is de novo. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991). Thus, this court uses the same criteria as the trial court in determining whether summary judgment is appropriate — whether there is a genuine issue of material fact and whether mover is entitled to judgment as a matter of law. In Smith v. Our [Lady] of the Lake Hospital, Inc., 93-25121 (La.7/5/94), 639 So.2d 730, 750, this court recognized that a “genuine issue” is a “triable issue.” The court continued: “An issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue.” The court further explained that a “fact is ‘material’ when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery.” Id.

Jones v. Estate of Santiago, 03-1424, pp. 5-6 (La.4/14/04), 870 So.2d 1002, 1006 (footnote omitted).

| ^Therefore, in order to show that the Defendants are entitled to the immunity afforded by La.R.S. 15:708, they had to show that Corsey was a prisoner sentenced to a parish prison of any parish of the state, that he consented of his own free will to participate in the workday release program, and that he remained in the custody and control of the Sheriff. Corsey does not contest any of these elements, and they are established by his deposition testimony. In that deposition, he admits that he was serving a forty day sentence in the Iberia Parish Jail as a result of a conviction for simple battery. He further testified that he volunteered to participate in the workday release program and that he was at all times supervised by a Sheriffs Deputy.

Accordingly, the burden shifted to Cor-sey to show that a question of fact remains as to whether the accident resulted from gross negligence or an intentional act. There is nothing of record which would suggest that Deputy Reaux acted intentionally. Further, we note that Corsey has not claimed that the accident was caused by any intentional act. Therefore, we must determine if Corsey has established that a question of fact remains as to gross negligence. “Gross negligence has been defined by this court as ‘the want of even slight care and diligence. It is the want of that diligence which even careless men are accustomed to exercise.’ State v. Vinzant, 200 La. 301, 7 So.2d 917 (1942).” Richard v. Miller, 03-1448, p. 4 (La.App. 3 Cir. 3/3/04), 867 So.2d 983, 986 (quoting Lenard v. Dilley, 01-1522, pp. 6-7 (La.1/15/02), 805 So.2d 175, 180).

The deposition testimony offered in support of the Defendants’ motions for summary judgment show that the four prisoners were in a truck driven by Deputy Reaux on the way to dump a trailer load of debris which they had picked up in the course of their workday release duties. They were crossing Louisiana Highway 90 17and had crossed two lanes of traffic. Ceasar and Foster testified that they saw the oncoming Chevrolet Suburban, but Corsey stated that he did not. Corsey stated that Deputy Reaux stopped in the intersection then proceeded into the lanes of traffic. Foster testified that Deputy Reaux tried to swerve but was unable to avoid the accident. Ceasar stated that Deputy Reaux did not stop at the median but admitted that in his answers interrogatories he had stated that as Deputy Reaux stepped on the gas to cross the second two lanes of traffic, the engine sputtered as though it were going to die causing them to be too slow to miss the oncoming vehicle.

We find nothing in this testimony which suggests that Deputy Reaux failed to exercise even “that diligence which even careless men are accustomed to exercise.” Id. Therefore, we find that the trial court correctly concluded that no issue of material fact remained in this regard. Accordingly, summary judgment was correctly granted.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the Appellant, Jerry Corsey.

      . Also in the vehicle were Irving Ceasar, Ron-aid Foster, and Jason Viator.


text:
    Jerry Wayne CORSEY v. IBERIA PARISH GOVERNMENT, Glynn Reaux, and Commonwealth Insurance Company.
    No. 05-1196.
    Court of Appeal of Louisiana, Third Circuit.
    April 5, 2006.

      Mark M. Gonzalez, New Orleans, LA, for Plaintiff-Appellant, Jerry Wayne Cor-sey.
    Joseph L. Ferguson, New Iberia, LA, for Defendants-Appellees, Sheriff Sid Hebert and Glynn Reaux.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

For the reasons set forth in the companion case hereto, Ceasar v. Hebert, 05-1195 (La.App. 3 Cir. 4/5/06), 926 So.2d 139, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the Plaintiff/Appellant, Jerry Corsey.

AFFIRMED.


text:
    Francis N. KATELY v. GLOBAL DATA SYSTEMS, INC.
    No. 05-1227.
    Court of Appeal of Louisiana, Third Circuit.
    April 5, 2006.

      J. Isaac Funderburk, Funderburk & Herpin, Abbeville, LA, for Plaintiff-Appel-lee, Francis N. Kately.
    Michael D. Hebert, Milling Benson Woodward, L.L.P., for Defendant-Appellant, Global Data Systems, Inc.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

11 Defendant, Global Data Systems, Inc. (“GDS”), appeals the trial court’s judgment awarding Plaintiff, Frances N. Kately (“Kately”), payment for her unused vacation time upon the termination of her employment with GDS. Finding no error in the trial court’s ruling, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff was hired by Defendant on April 23, 2003 as a full-time employee. Her employment was terminated by Defendant on April 2, 2004. Upon the separation of employment, Kately alleged that she was due $907.69 in wages for her accrued but unused vacation time, and she made written demand for payment of that amount plus penalty wages. When GDS refused to pay the amount claimed, Kately filed a Summary Petition for Wages Due, Penalty Wages, and Attorney’s Fees under La.R.S. 23:631, et seq.

The matter came for hearing on a Rule to Show Cause. The parties stipulated to the facts that at that time of her separation of employment, Kately had 64.65 hours of accrued but unused vacation time and that she was earning $14.0387 per hour. GDS did not dispute that it had received Kately’s demand or that it had not paid Kately. Following the hearing, the trial court rendered judgment in favor of Kately in the amount of $907.60 plus $2,437.50 in attorney’s fees. Kately’s demand for penalties was denied.

GDS now appeals this judgment. Since Kately has not appealed the denial of penalties, the only issue now before this court is whether the trial court was correct in holding that Kately was entitled to be paid for her unused vacation time as wages upon the separation of her employment from GDS.

I ¡.DISCUSSION

Louisiana Revised Statutes 23:631 provides, in pertinent part, as follows:

A. (l)(a) Upon the discharge of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday or no later than fifteen days following the date of discharge, whichever occurs first.
D. (1) For purposes of this Section, vacation pay will be considered an amount then due only if, in accordance with the stated vacation policy of the person employing such laborer or other employee, both of the following apply:
(a) The laborer or other employee is deemed eligible for and has accrued the right to take vacation time with pay.
(b) The laborer or other employee has not taken or been compensated for the vacation time as of the date of the discharge or resignation.
(2) The provisions of this Subsection shall not be interpreted to allow the forfeiture of any vacation pay actually earned by an employee pursuant to the employer’s policy.

Louisiana Revised Statutes 23:634 provides, in part:

A. No person, acting either for himself or as agent or otherwise, shall require any of his employees to sign contracts by which the employees shall forfeit their wages if discharged before the contract is completed or if the employees resign their employment before the contract is completed; but in all such cases the employees shall be entitled to the wages actually earned up to the time of their discharge or resignation.

The focus of our review in this case is whether Kately’s vacation time was “an amount due under the terms of employment” or “wages.” We review this matter under the manifest error standard; thus, we may not set aside the trial court’s findings of fact in the absence of manifest error or unless they are clearly wrong. Picard v. Vermilion Parish Sch. Bd., 98-1933 (La.App. 3 Cir. 6/23/99), 742 So.2d 589, writ denied, 99-2197 (La.11/19/99), 749 So.2d 675; Fontenot v. Ryder Truck Rental, Inc., 03-1129 (La.App. 3 Cir. 3/24/04), 869 So.2d 330.

Effective January 7, 2004, GDS revised its vacation policy to provide as follows:

VACATION
Only full time Global Data Systems employees are eligible for paid vacation time off. Full-time employees employed on the first day of the fiscal year will be eligible for 10 days/80 hours of vacation time off if employee’s anniversary date occurring in the current fiscal year is six (5)[sie] years or less. If employee’s anniversary date occurring in the fiscal year is seven (6)[sic] years or greater, the employee will be eligible to use 15 days/120 hours of vacation time off. Employees hired after the first day of the current fiscal year will accrue 3.33 hours per pay period (semi-monthly pay period). If employee is hired after October 1st, there will be no vacation time accrued for that fiscal year.
An employee is not eligible for vacation time until after their 90-day probationary period.
Upon termination of employment all unused vacation time will be forfeited and not paid.
Vacation days cannot be carried over to the next year and financial compensation will not be provided in lieu of unused vacation. Once you have used up your vacation hours you must take any additional time off without pay.
VACATION TENURE
All vacation time will be based on actual continuous full time worked at GDS. If an approved leave of absence is taken (for maternity, illness, military, etc.), the vacation time clock will start where it was when that employee left only if that employee comes back on a full time basis. An unapproved leave of absence (regardless of duration) will result in immediate suspension and/or dismissal. Employees are encouraged to use and enjoy their vacations. The manager of the department must approve all vacation requests. In every instance, efforts will be made to accommodate the desires of the employee to take certain time off for vacation, but each employee must understand that the needs of our customers will have to be met. If two or more employees request the same time off but only one can be given the time, then seniority of the employees will determine preference.
|4If a holiday falls during a planned vacation, it will be treated as a holiday, not a vacation day.
Eligible employees will be paid for earned but not unused vacation upon termination. The final paycheck will also be adjusted for vacation taken but not earned. The vacation hours will not be forfeited if V.P. of employee’s department approves and confirms employee could not schedule a vacation due to workload.

Kately did sign an Acknowledgment of Receipt of the revised Global Employee Handbook on January 29, 2004.

Generally, “[v]acation pay is considered to be wages for the purposes of LSA-R.S. 23:631.” Picard, 742 So.2d at 591 (citations omitted). However, “where an employer has a clearly established policy that vacation time is not considered wages for the purposes of La.R.S. 23:631(D)(2), an employee is not entitled to reimbursement for unused, accrued vacation time.” Id. at 591 (citing Huddleston v. Dillard Dept. Stores, Inc., 94-53 (La.App. 5 Cir. 5/31/94), 638 So.2d 383). This court has previously held that:

[I]n the absence of a clear, written policy establishing that vacation time granted by an employer to an employee is nothing more than a mere gratuity and not to be considered an amount due or a wage, accrued but unused vacation time is a vested right for which an employee must be compensated upon discharge or resignation.

Id. at 595-96. Moreover, any ambiguity will be interpreted against the employer. Fontenot, 869 So.2d 330 (citing Baudoin v. Vermilion Parish Sch. Bd., 96-1604 (La.App. 3 Cir. 4/2/97), 692 So.2d 1316, writ denied, 97-1169 (La.6/20/97), 695 So.2d 1358).

We agree with the trial court’s factual finding that GDS’ policy did not clearly state that the vacation time given to its employees was a “mere gratuity.” We find no merit in GDS’ argument that “the explicit statements in the post-January 7, 2004 Global Employee Handbook that ‘upon termination of employment all unused vacation time will be forfeited and not paid’ and ‘financial compensation will not be | ¡^provided in lieu of unused vacation’ qualify as ‘a clear written policy establishing that vacation time granted by’ Global to Kately ‘is nothing more than a mere gratuity and not to be considered an amount due or a wage.’ ” Even GDS admits that the statement, “[eligible employees will be paid for earned but not unused vacation upon termination,” which appears in both the pre-January 7, 2004 and post January 7, 2004 employee handbooks, is ambiguous. Furthermore, even GDS’ Senior Vice President, Edward McCracken, who testified at the hearing of this matter, recognized that there was “a lack of knowledge in terms of ... the nomenclature and the description ... used to find what the old policy was where you have earned vacation and accrued vacation and one of the new policy where you have unused vacation.”

In any event, none of these statements establishes that vacation time at GDS is a “mere gratuity.” While we do not read Picard to require the use of any “magic words,” we find that GDS’ policy does not explicitly state that vacation time is a gift, a donation, or unearned. In fact, GDS’ revised policy continues to speak in terms of “eligibility” for and “accrual” of vacation time and states that “[a]ll vacation time will be based on actual continuous full time worked at GDS.” Thus, following Picard, we find that Kately’s unused vacation time was a vested right for which she must be compensated. Therefore, based on our review of the record, we cannot say that the trial court committed manifest error in finding that Kately was entitled to be paid for her unused vacation time upon the termination of her employment at GDS.

Again, since Kately has not appealed the trial court’s failure to award penalties, we cannot consider whether the trial court erred in denying her claim therefor.

DECREE

For the above and foregoing reasons, we find no manifest error in the trial court’s findings that GDS’ policy did not clearly state that vacation time was a “mere | ^gratuity” and that Kately’s unused vacation time was “wages.” Therefore, we affirm the judgment awarding her $907.60 plus $2,437.50 in attorney’s fees. Costs of this appeal are assessed to Defendant Appellant, Global Data Systems, Inc.

AFFIRMED.

AMY and PICKETT, JJ., concur in the result.

      . Kately’s first name appears as “Francis” in the caption of this case but we note that she has signed her name as "Frances” in other documents that appear in the record.


author: THIBODEAUX, Chief Judge.

text:
    James R. DUPLECHAIN v. BELL OFFICE SUPPLY.
    No. 05-1282.
    Court of Appeal of Louisiana, Third Circuit.
    April 5, 2006.

      Jonathan Clyde Vidrine, West & Vid-rine, Ville Platte, LA, for Plaintiff Appel-lee, James R. Duplechain.
    Laurie Wilder Maschek, Rabalais, Un-land & Lorio, Covington, LA,‘ for Defendant/Appellant, Bell Office Supply.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JAMES T. GENOVESE, - Judges.
   THIBODEAUX, Chief Judge.

| defendant-employer, Bell Office Supply, appeals' the Office of Workers’ Compensation judgment that injuries sustained by Plaintiff-employee, James Ray Duple-chain (Mr. Duplechain), from a motorcycle accident occurred while he was in the course and scope of his employment, making him eligible for benefits under the Louisiana Workers’ Compensation Act. For the following reasons, we affirm the judgment.

I.

ISSUE

Did Mr. Duplechain sustain injuries from an accident that occurred in the course and scope of his employment, and did those injuries arise out of his employment with Bell Office Supply?

II.

FACTS

Mr. Duplechain was the manager of Bell Office Supply (BOS) in Ville Platte, Louisiana in April of 2003. He was also President of the Board of Directors, and a part owner with a twenty-percent ownership interest in the business. He had been continuously employed by BOS since 1974, and assumed the position of Manager in 1976. As Manager, he was responsible for all aspects of the day-to-day operations of the business. BOS had a small office staff, consisting of Mr. Duplechain and two other office workers, plus a delivery truck driver.

As part of his management responsibilities, Mr. Duplechain would often have to personally complete many of the tasks required by the daily activities of the business. Uncontroverted testimony from him and the other BOS employees reveals I ¡.that his tasks included: making personal sales calls to new and existing clients; loading and unloading merchandise; taking inventory of stock and ordering more merchandise; making sure customers’ orders were placed and delivered on time; solving any delivery problems that might occur, such as the delivery truck breaking down; sorting through and processing bids; and, manning the cash register in the store.

To enable Mr. Duplechain to perform all of the above-listed duties, BOS supplied him with a pick-up truck. All of the expenses for this truck were paid for by BOS.

BOS was officially open to the public Monday through Friday, from 8 a.m. to 5 p.m. However, Mr. Duplechain would often work before and after closing and on weekends in order to maintain all of the responsibilities required to make BOS competitive, and serve its customers in a timely fashion.

On April 17, 2003, the BOS delivery truck became disabled in the middle of the daily deliveries. Mr. Duplechain arranged for the truck to be towed to a repair shop, and then allowed the delivery truck driver to use the pick-up truck supplied to him by BOS to finish the day’s deliveries. Mr. Duplechain used his personal motorcycle, as he did on a regular basis, to resume his work schedule and continue responding to the duties of the day. After a break during which he umpired a high school baseball game, Mr. Duplechain returned to BOS to complete any unfinished projects for the day. He arrived at BOS after 5 p.m. when the office and store were officially closed for the day. He had to unlock the door, turn on the lights, re-start the computer, and he began processing the bids that had been placed by customers that day. All other BOS employees had left for the day.

Mr. Duplechain then noticed that a number of printing orders had been left behind by the delivery man, and had not been delivered to the printer that day as | ^scheduled. Since it was after hours, Mr. Duplechain decided that he needed to deliver the orders to the home of the owner of Johnson’s Printing, T.J. LeBouef, in Eunice, Louisiana. April 17, 2003 was the Thursday before Good Friday. Both BOS and Johnson’s Printing would be officially closed for the three-day Easter weekend, but Mr. Duplechain wanted the orders to be at Johnson’s in time for them to begin work immediately on them Monday morning when they returned from the holiday weekend. It was his intention to ensure that the orders would be processed in a timely manner for BOS’s customers.

Mr. Duplechain used his personal motorcycle to make the delivery even though the BOS pick-up truck had been returned to the office and was available for his use. He stated that he chose to use the motorcycle because it got better gas mileage. Both the printshop owner T.J. LeBouef and Mr. Duplechain stated that BOS printing orders had been delivered to Mr. Le-Bouefs home after hours by Mr. Duple-chain using his personal motorcycle on a number of previous occasions. Testimony from witnesses estimate that the delivery was made sometime between 5:30 p.m. and 7:25 p.m. on April 17, 2003.

After making the delivery, Mr. Duple-chain met his family for dinner at a restaurant near Mr. LeBouefs home in Eunice, Louisiana. Approximately thirty to forty minutes later, Mr. Duplechain and his wife set out for Ville Platte, Louisiana on his motorcycle. Mr. Duplechain stated that he was going back to BOS to finish the work that he had left unfinished on his desk before he made the printing delivery. Before he arrived at BOS, his motorcycle was struck by an on-coming car in the opposite lane of traffic that was attempting to make a left turn. Mr. Duplechain sustained serious injuries that have left him completely and permanently disabled. He lacks the capability to work in any capacity whatsoever.

|4Mr. Duplechain filed this disputed claim for compensation with the Louisiana Office of Workers’ Compensation. Both parties submitted their case to the workers’ compensation judge on the record that had been- developed rather than having a trial. The only issue in dispute was whether Mr. Duplechain was in the course and scope of his employment when the accident occurred. The trial court determined that he was, and BOS then filed this appeal.

III.

LAW AND DISCUSSION

Standard of Review

Appellate courts cannot overturn the factual determinations of workers’ compensation courts unless the trial court was clearly wrong, or committed manifest error. Smith v. La. Dep’t of Corr., 93-1305 (La.2/28/94), 633 So.2d 129. Factual determinations include reasonable evaluations of credibility and reasonable inferences of fact, especially when conflict exists in the testimony of witnesses or parties. Id. “[I]f the WCJ’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Lyons v. Bechtel Corp., 00-364, p. 7 (La.App. 3 Cir. 12/27/00), 788 So.2d 34, 40, writ denied, 01-282 (La.3/23/01), 787 So.2d 996 (citation omitted).

Under Louisiana’s workers’ compensation statute, a worker must prove that an accident with resulting injuries arose out of, and occurred in the course of his or her employment by a preponderance of the evidence. Bruno v. Harbert Int’l, Inc., 593 So.2d 357 (La.1992). Appellate courts must give great deference to the workers’ compensation judge’s determination as to whether the employee has met his or her burden of proof. Id.

Isln determining whether the employee has discharged his burden of proof, the workers’ compensation judge should accept as true a witness’ uncontradicted testimony, even though the witness is a party, absent circumstances that cast suspicion on the reliability of that testimony. Further, the workers’ compensation judge’s determinations on whether the employee’s testimony was credible and on whether the employee met his burden of proof are factual findings not to be disturbed on appeal absent manifest error.

Honeycutt v. Elbert Walker Constr., 01-1291, pp. 3-4 (La.App. 3 Cir. 2/6/02), 815 So.2d 1011, 1014 (citations omitted).

While the worker bears the burden of proving that an injury occurred by an accident arising from and in the course of his or her employment by a preponderance of the evidence, the Louisiana Supreme Court in McLin v. Industrial Specialty Contractors, Inc., 02-1539 (La.7/2/03), 851 So.2d 1135, directed Louisiana courts to interpret the work-related accident requirement liberally.

The provisions of the workers’ compensation law are to be interpreted liberally in favor of the worker in order to effectuate its purpose of relieving workers of the economic burden of work-connected injuries by diffusing the cost on channels of commerce. Lester v. Southern Cas. Ins., 466 So.2d 25 (La.1985). See also Coats v. American Tel. & Tel. Co., 95-2670 (La.10/25/96), 681 So.2d 1243; Harold v. La Belle Maison Apartments, 94-0889 (La.10/17/94), 643 So.2d 752.

Id. at 1139.

The Louisiana Workers’ Compensation Act defines an accident as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La.R.S. 23:1021(1). There is no question from the record, nor do any of the parties disagree, that Mr. Duplechain suffered an accident which meets the elements of this statutory definition of an accident.

| fiThere is also no question that Mr. Du-plechain was very seriously injured as a result of that accident. The sole debate in this case is whether the accident in which those injuries were sustained arose out of, and occurred in the course of his employment with BOS, as required by La.R.S. 23:1031(A).

A Compensable Accident Must Arise Out of and Occur In the Course of Employment

Louisiana Revised Statutes 23:1031 states that only injuries which both arise out of, and occur in the course of employment are compensable under the workers’ compensation system. La.R.S. 23:1031(A). An analysis of whether an injury occurred in the course and scope of employment requires an analysis of both the arising out of, and course of employment requirements. “The terms arising out of, and in the course of constitute a dual requirement. The former suggests an inquiry into the character or origin of the risk while the latter brings into focus the time and place relationship between the risk and the employment.” Raybol v. La. State Univ., 520 So.2d 724, 726 (La.1988). Therefore, we must determine whether there is evidence in the record which reasonably supports a conclusion that Mr. Du-plechain’s injuries both arose out of, and occurred in the course and scope of his employment. “[T]his court has recognized the mutual interdependence of the two concepts in determining the relationship of the injury to the employment.” Mundy v. Dep’t of Health and Human Res., 593 So.2d 346, 349 (La.1992).

In his reasons for judgment in favor of Mr. Duplechain, the workers’ compensation judge relied, at least in part, upon the Louisiana Supreme Court’s analysis of the interdependence of these two factors elaborated in McLin. If an employee is actively engaged in the performance of his or her work duties, during contemplated work hours, at a place where those employment activities take the 17employee, then he or she has met the “in the course of’ employment requirement. McLin, 851 So.2d at 1140. Then, “[t]he requirement that an employee’s injury ‘arise out of the employment relates to the character or origin of the injury suffered by the employee and whether this injury was incidental to the employment. Williams [v. Regional Transit Authority ], 546 So.2d [150,]161 [ (La.1989) ].” Id.

We will first determine whether Mr. Duplechain’s injury occurred in the course of his employment because “when the employee is squarely within the course of his employment, virtually any risk (whether an increased risk or not) has been considered as arising out of employment. W. Malone & H. Johnson, supra at [13 Louisiana Civil Law Treatise—Worker’s Compensation ] § 193 [ (2d ed.1980).]” Mundy, 593 So.2d at 349. Basically, “the principal criteria for determining course of employment are time, place and employment activity.” Id.

All of the deposition testimony in the record confirms Mr. Duplechain’s assertion that he went to the printer in Eunice because he was completing a work errand on behalf of his employer, BOS. The record shows that he had made such trips to the printer after hours in the past. The record also reveals that he often used his motorcycle to make such trips.

There is no requirement in the statute or the caselaw that an employee must use a vehicle supplied by his or her employer when completing work activities off the employer’s premises. It is an unimportant fact in this case because Mr. Duplechain had used his motorcycle to conduct many tasks on behalf of BOS for many years. BOS had no policy against the use of the motorcycle, nor was there a policy requiring the use of BOS official vehicles when conducting BOS business. BOS offers no testimony or other evidence to contradict Mr. Duplechain, or any of the other deposition testimony. Additionally, BOS’s assertion that by taking his | smotorcycle Mr. Duplechain assumed greater risk than what was required for completing the task is merely speculative, and therefore not a valid issue.

The record contains testimony and other evidence which tend to demonstrate that BOS benefitted from Mr. Duplechain’s efforts to serve the customers, even after hours. Michelle Fontenot and Tiffany Fontenot, BOS’s two other employees, both corrorborated Mr. Duplechain’s statements that he often worked before and after the store officially closed, on holidays and weekends, and that customers would even call him at home in order to get the supplies that they needed. BOS likely benefitted from this kind of dedication and customer service.

BOS argues that even if Mr. Duple-chain was conducting an employment-related duty, at a time and place contemplated by his employment, he was no longer in the course and scope of his employment when the accident occurred because of the application of the “going-and-coming rule.”

Generally, injuries sustained by an employee while traveling to and from work are not considered to have occurred within the course and scope of his employment, and thus, are not com-pensable under the Workers’ Compensation Act. Stephens v. Justiss-Mears Oil Co., 312 So.2d 293 (La.1976); W. Malone & H. Johnson, 13 Louisiana Civil Law Treatise—Workers Compensation § 168 (4th ed.2002). This rule, often called the “going-and-coming rule,” is premised on the theory that, ordinarily, the employment relationship is suspended from the time the employee leaves his work to go home until he resumes his work. Phipps v. Bruno Const., 00-0480 (La.App. 3 Cir. 11/2/00), 773 So.2d 826 (citing Yates v. Naylor Industrial Services, Inc., 569 So.2d 616, 619 (La.App. 2 Cir.1990)), writ denied, 572 So.2d 92 (La.1991).

McLin, 851 So.2d at 1140.

Mr. Duplechain claims that he was not traveling home from his employment task, but rather that he was heading back to the BOS office to complete |flthe day’s work that he had left undone on his desk when he left to go to the printer’s home. Both Michelle Fontenot and Tiffany Fontenot state that when they came into work on the Monday following the accident, Mr. Duplechain’s computer and lights were on, and the bids he had been working on were left scattered all over his desk, not yet completed. They both stated that Mr. Du-plechain must have come in after 5 p.m. on that Thursday, April 17, because they had turned off the computers and lights when they left the office that day at 5 p.m. The two women and Mr. Duplechain were the only ones with keys to the BOS office, and neither one of the women had returned until the following Monday morning.

Michelle stated that she assumed that the bids on Mr. Duplechain’s desk were not yet completed. Typically, when he was finished with the bids he would put a BOS stamp on them, and the bids lying on his desk did not have that stamp on them. She also stated that Mr. Duplechain was the only person with a key who would typically come into BOS after hours and finish the bids. He was the only BOS employee at the time who worked on the bids, and he preferred having them completed the day they were placed.

The testimony of Michelle and Tiffany corroborates Mr. Duplechain’s assertion that he was working late, and intended to return to BOS to finish that work. BOS offers no evidence or testimony which contradicts Mr. Duplechain’s claim that he was heading back to BOS to finish the work he had begun earlier in the evening. Therefore, he was not going home from work, he was still working when the accident occurred, making the “going-and-coming rule” inapplicable to this case.

The record supports the conclusion that Mr. Duplechain was working for BOS when he went to Eunice to deliver the printing orders to the printer, and that he was heading back to BOS to continue working. Therefore, the judgment of the Office | inof Workers’ Compensation that he was in the course of his employment when the accident occurred is reasonable.

We now determine if there was evidence in the record to support a reasonable conclusion that the accident also arose out of Mr. Duplechain’s employment. In Williams, the statutory requirement that injuries must also arise out of an employee’s employment was explained:

Under La.R.S. 23:1031, the employee’s injury must arise out of his employment. The purpose of the “arising out of’ requirement is to assure that compensation will be awarded only for those personal injuries related to risks incidental to employment. Reid v. Gamb, 509 So.2d 995 (La.1987); Nix v. City of Houma, 488 So.2d 184 (La.1986); Malone & Johnson, [13 La. Civil Law Treatise, Worker’s Compensation] supra, § 191. The “arising out of’ inquiry focuses upon whether the character or origin of the risk giving rise to injury was employment related. Raybol v. Louisiana State University, 520 So.2d 724 (La.1988).

Williams, 546 So.2d at 158-59.

The record makes clear that Mr. Duplechain would not have traveled to Eunice the evening of April 17, 2003 except to deliver the printing orders that had been left behind by the BOS delivery man earlier that day. Mr. Duplechain’s explanation that he wanted the printing orders to get to the printer in time to be processed first-thing on the next business day was reasonable, and BOS offers no testimony or other evidence to contradict Mr. Duplechain’s reasoning. Since the printing orders needed to be at the printer, and Mr. Duplechain needed to return to BOS to finish his work, he would not have been on the road, at the location of the accident, at the time of the accident, had he not been engaged in an employment activity for BOS. Therefore, it is reasonable to conclude that Mr. Duplechain’s injuries also arose out of his employment. “An accident arises out of employment if the employee was engaged about his employer’s business and when the conditions of | n obligations of the employment cause the employee in the course of employment to be at the place of the accident at the time the accident occurred.” McLin, 851 So.2d at 1142.

BOS argues that Mr. Duplechain deviated from his work route because he did not use the same route to come back from Eunice as he took to go to Eunice. However, the route taken by an employee is not determinative of whether the employee was in the course and scope of his employment or whether the accident arose out of one’s employment unless the employee was going to or coming home from work. In this case, Mr. Duplechain was performing a task that benefitted his employer. The record reveals that there are at least three different routes one can take from Ville Platte to Eunice. The performance of a work related task does not require an employee to use exactly the same route if there are choices of routes to take.

Was There a Substantial Deviation From the Course of Employment

BOS alleges that the workers’ compensation judge committed legal error by not applying the substantial deviation doctrine.

Generally, “[a]n identifiable deviation from a business trip for personal reasons takes the employee out of the course of employment until the employee returns to the route of the business trip, unless the deviation is so small as to be disregarded as insubstantial.” 1 Larson’s Workers’ Compensation Law § 17-1 (emphasis added); see also Malone & Johnson, 13 Louisiana Civil Law Treatise, Workers’ Compensation § 174, at 405 & n. 1.

Timmons v. Silman, 99-3264, p. 5 (La.5/16/00), 761 So.2d 507, 511.

Mr. Duplechain admits that after delivering the printing order, he and his family had supper at a near-by restaurant. Had the accident occurred while he was going to the restaurant, at the restaurant, or coming back from the restaurant on a h ¿route that would not lead him back to BOS, then we would have reason to discuss the substantial deviation doctrine. However, the accident occurred within approximately one mile of the BOS office, which is approximately twenty miles from Eunice, Louisiana. It is clear from the facts in evidence that Mr. Duplechain’s personal deviation for supper was over, and that he was back within the course and scope of his employment.

IV.

CONCLUSION

An employee is within the course and scope of his or her employment at the time of an alleged work-related accident if that accident both arises out of, and occurs in the course of his or her employment. The determination of whether an employee was in the course and scope of his or her employment is a factual determination. Factual determinations made by a workers’ compensation judge cannot be overturned on appeal unless they are clearly wrong or contain manifest error.

In this case, the workers’ compensation judge reasonably concluded that because Mr. Duplechain was returning to the BOS office from a work-related errand at the time of his accident that he was within the course and scope of his employment. The fact that he took a dinner break, and then returned to work is not a determinative issue in this case. Likewise, the route he chose to use to complete his work errand is not part of the analysis required to determine if he was in the course and scope of his employment unless he was going to or coming home from work, which he was not. The judgment of the Office of Workers’ Compensation is affirmed. All costs of this appeal are cast to the Defendant/Appellant BOS.

AFFIRMED.


author: GENOVESE, Judge.

text:
    Mike D. LEGER v. SONNIER EXTERMINATING COMPANY.
    No. 05-1291.
    Court of Appeal of Louisiana, Third Circuit.
    April 5, 2006.

      Christopher J. Piasecki, L. Bianca Chretien, Lafayette, Louisiana, for Defendant/Appellant, Sonnier Exterminating Company.
    Mike D. Leger, In Proper Person, Milton, Louisiana, PlaintiffAppellee.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

hln this workers’ compensation case, Sonnier Exterminating Company (Sonnier) appeals the judgment denying its peremptory exception of prescription pertaining to medical and supplemental earnings benefits. The trial court ruled that payments made by Plaintiffs uninsured/underin-sured motorist insurance carrier interrupted prescription on the basis that it was a solidary obligor with the workers’ compensation carrier. Finding that the uninsured/underinsured motorist insurance carrier and the workers’ compensation carrier are not solidary obligors, we reverse’

FACTS AND PROCEDURAL HISTORY

Plaintiff, Mike D. Leger (Leger), was involved in an automobile accident on January 21, 2002, wherein he sustained personal injury. At the time of the accident, Leger was traveling home in a vehicle owned by his employer, Sonnier. The accident occurred due to the fault of Delores McGee; however, Ms. McGee was uninsured.

After the accident, Sonnier’s automobile uninsured/underinsured motorist (UM) insurance carrier, -State Farm Automobile Insurance Company (State Farm), made payments to Leger and to his medical providers pursuant to Sonnier’s UM and medical payments (med-pay) coverage. The last payment to Leger by State Farm was for med-pay benefits on January 21, 2004.

Leger filed a disputed claim for compensation, commonly referred to as a 1008, on January 14, 2005. Sonnier filed a peremptory exception of prescription asserting that Leger’s claim was barred because it was not filed within the one-year prescriptive period set forth in La.R.S. 23:1209. Leger argued that his claim-was not prescribed since it was filed within one year of the last payment made to him by State Farm, and as solidary obligors, State Farm’s payments interrupted prescription as to his workers’ | compensation claim against Sonnier.

At the hearing on the exception of prescription, Sonnier introduced into evidence letters from State Farm to Leger which state that State Farm was paying Leger’s medical bills pursuant to his UM coverage. Sonnier argued that he neither paid nor agreed to pay Leger any workers’ compensation benefits following the January 21, 2002 accident. Sonnier introduced into evidence the policy of insurance issued by State Farm which covered the truck Leger was driving. The policy agrees to pay UM and med-pay benefits, but not as a substitute for workers’ compensation benefits. Specifically, the UM policy provides:

THERE IS NO COVERAGE:
1. TO THE EXTENT IT BENEFITS:
a. ANY WORKERS?] COMPENSATION OR DISABILITY BENEFITS INSURANCE COMPANY.
b. A SELF-INSURER UNDER ANY WORKERSf] COMPENSATION, OR DISABILITY BENEFITS OR SIMILAR LAW.

The Workers’ Compensation Judge (WCJ) granted Sonnier’s exception in part and denied it in part. In deciding the issue of whether Sonnier and State Farm were solidary obligors, the WCJ stated:

I am going to find that the payments by State Farm, as Mr. Sonnier’s and the company’s uninsured- motorist payments, were made in lieu of compensation.... [BJeyond the fact that the UM carrier is making payments as a solidary obligor with the employer responsibility [sic] -for those items of loss, there’s also the additional fact that they’re not completely strangers as solidary obligors. Payments were made bn behalf of Mr, Son-nier, though through a different vehicle than a workers’ compensation policy.
So, I am making a finding that they were payments in lieu of compensation.

After ruling that Sonnier and State Farm were solidary obligors, the Workers’ ^Compensation Judge (WCJ) concluded that the payments made by State Farm to Leger had interrupted prescription as to Leger’s claim against Sonnier for supplemental earnings benefits and medical expenses. The WCJ reasoned:

[Supplemental earning benefits are still payable within a three-year period under [La.R.S.] 23:1209. So, a claim may be maintained for supplemental earning benefits and medical expenses, there being payments made of the medical expenses. [La.R.S. 23:]1209, again, gives a three-year prescriptive period. But, actually suit was filed within a year of the last medical payment, so really there is no problem for the medical payment.

The WCJ interpreted La.R.S. 23:1209 to mean that since Leger filed his 1008 claim within three years of the last med-pay benefits paid by State Farm, Leger’s claims for supplemental earnings benefits and 'medical expenses had not prescribed. Thus, the WCJ denied Sonnier’s peremptory exception of prescription as to Leger’s claim for supplemental earnings benefits and medical expenses.

With regard to Leger’s claims for wage benefits, the WCJ stated:

[t]he last wage payment was made in December of 03. So, it being more than a year of [sic] the last payment of wage benefits, any claims to total temporary disability, partial permanent disability, and permanent and total disability, would have prescribed as the last payment has to be made, or the suit needs to be filed within a year from the last payment made.

Because the last wage payment from State Farm to Leger was made in December of 2003, and since more than one year had passed before filing his 1008 claim, Leger’s claims for temporary total disability, partial permanent disability, and permanent and total disability were barred by prescription . Thus, the WCJ granted Sonnier’s peremptory exception of prescription as to Leger’s claims for wage and disability benefits. Sonnier appeals the judgment denying its peremptory exception of prescription as to supplemental earnings benefits and medical expenses.

J^ISSUES

The following issues are presented by Sonnier for our review:

I. Whether the WCJ erred in concluding that Sonnier and State Farm were solidary obligors.
II. Whether the WCJ erred in ruling that Leger’s claims for medical benefits and supplemental earnings benefits were not prescribed.

LAW AND DISCUSSION

Standard of Review

Ordinarily, when an appeal involves a ruling on a peremptory exception with contested issues of fact and “[w]hen evidence is introduced and evaluated in the trial court on a peremptory exception, the appellate court must review the entire record to determine whether the trial court manifestly erred with its factual conclusions.” Egle v. Egle, 01-927, p. 4 (La.App. 3 Cir. 2/6/02), 817 So.2d 136, 139 (quoting Parker v. Buteau, 99-519, p. 3 (La.App. 3 Cir. 10/13/99), 746 So.2d 127, 129). However, in a case in which there are no contested issues of fact and the only issue is the application of the law to the undisputed facts, as in the case at bar, the appellate court must decide whether the lower court’s decision is legally correct or incorrect. Sieferman v. State Farm Mut. Auto. Ins. Co., 01-439 (La.App. 3 Cir. 10/3/01), 796 So.2d 833 (citing Huddleston v. Farmers Merchants Bank & Trust Co., 00-640 (La.App. 3 Cir. 11/1/00), 772 So.2d 356).

Solidary Obligors

Louisiana Civil Code Articles 1799 and 3503 mandate that the interruption [.■jOf prescription against one solidary obli-gor is effective against all solidary obli-gors. However, our jurisprudence recognizes certain instances where an employer and an insurer are not solidary obligors. The Louisiana Supreme Court in A. Copeland Enterprises, Inc. v. Slidell Memorial Hospital, 94-2011, p. 7 (La.1995), 657 So.2d 1292, 1297, stated that “in order for an obligor to be bound, the obligation must be solidary and indivisible. An obligation is solidary among debtors when they are obliged to do the same thing, so that either may be compelled to perform the whole obligation, and payment by one exonerates the other” (citing La.Civ.Code art. 1794; Hoefly v. Gov’t Employees Ins. Co., 418 So.2d 575 (La.1982)).

Sonnier asserts that all payments received by Leger and/or his medical providers were made by State Farm pursuant to his UM policy, and not as payment on behalf of Sonnier as a workers’ compensation benefit. Sonnier contends that it neither controlled nor influenced State Farm’s making of payments to Leger; and further, that Leger was specifically made aware of the fact that the payments he received were made pursuant to his UM coverage through State Farm. Sonnier argues that the WCJ erred in denying its exception of prescription on the grounds that State Farm, as Sonnier’s UM insurer, was a solidary obligor, and as such, its payments to Leger interrupted prescription. Leger has not filed an appellate brief.

Sonnier asserts that the jurisprudential definition of solidarity does not apply to Sonnier and its UM insurer, State Farm. We agree. Sonnier and State Farm have different obligations to Leger. Sonnier’s obligation is to provide workers’ compensation benefits; State Farm’s obligation under the policy is to provide UM insurance. As stated in Viada v. A & A Machine Works, Inc., 05-210, p. 6 (La.App. 4 Cir. 6/15/05), 914 So.2d 1113, 1117:

The claim plaintiff has against each entity — his workers’ compensation |fidaim against his employer and its insurer, on one hand, and against the UM insurer of his employer’s vehicle sounding in tort, on the other hand — arise from separate parts of Louisiana law. [Plaintiffs] claims are [against] different entities. The elements of damage to be compensated by the two insurers are not identical. For example, the UM insurer can compensate for pain and suffering, mental anguish, loss of consortium, and other items of special and general damage, that are specifically excluded from the scope of compensation under workers’ compensation jurisprudence.
Thus, the employer’s workers’ compensation carrier and UM carrier are not solidary obligors. Each is not bound for the whole. The damages for which the UM carrier may be held here are different from those for which a workers’ compensation carrier can be held.

Contrary to the findings of the WCJ, we do not agree that the payments made to Leger by State Farm obligate Sonnier for Leger’s workers’ compensations claims. Therefore, we find the WCJ erred in ruling that Sonnier and State Farm are soli-dary obligors.

Louisiana Revised Statutes 23:1209

Louisiana Revised Statutes 23:1209 generally provides that a claim for l7workei"s’ compensation benefits for personal injury is subject to a one-year prescriptive period; however, in cases where payments have been made by the employer or its insurer, said time limit does not expire until one year after the last payment is made.

In this matter, Leger’s 1008 claim was not filed for nearly three years after the date of the accident and alleged injuries. Having determined that Sonnier and State Farm are not solidary obligors, and that Leger’s 1008 claim was not filed within the one-year prescriptive period, we find that Leger’s workers’ compensation claim has prescribed. The WCJ erred by concluding that Leger’s workers’ compensation claim for supplemental earnings benefits and medical expenses had not prescribed.

DECREE

For the foregoing reasons, the judgment of the WCJ is reversed. Leger’s claim for workers’ compensation benefits has prescribed. Costs of these proceedings are assessed against the PlaintiffiAppellee, Mike D. Leger.

REVERSED.

      . Sonnier agrees with this finding and does not challenge same on appeal.

      . Louisiana Civil Code Article 1799 states that "the interruption of prescription against one solidary obligor is effective against all soli-dary obligors and their heirs."

      .Louisiana Civil Code Article 3503 states, in pertinent part, "when prescription is interrupted against a solidary obligor, the interruption is effective against all solidary obli-gors and their successors.”

      . Louisiana Revised Statutes 23:1209 provides:
      A.In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4). Also, when the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.
      B. Any claim may be filed with the director, office of workers' compensation, by delivery or by mail addressed to the office of workers' compensation. The filing of such claims shall be deemed timely when the claim is mailed on or before the prescription date of the claim. If the claim is received by mail on the first legal day following the expiration of the due date, there shall be a rebuttable presumption that the claim was timely filed. In all cases where the presumption does not apply, the timeliness of the mailing shall be shown only by an official United States postmark or by official receipt or certificate from the United States Postal Service made at the time of mailing which indicates the date thereof.
      C. All claims for medical benefits payable pursuant to R.S. 23:1203 shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed with the office as provided in this Chapter. Where such payments have been made in any case, this limitation shall not take effect until the expiration of three years from the time of making the last payment of medical benefits.
      D. When a petition for compensation has been initiated as provided in Section 1310.3, unless the claimant shall in good faith request a hearing and final determination thereon within five years from the date the petition is initiated, same shall be barred as the basis of any claim for compensation under the Workers’ Compensation Act and shall be dismissed by the office for want of prosecution, which action shall operate as a final adjudication of the right to claim compensation thereunder.