author: LANIER, Judge.

text:
    Harley THORNELL v. PAYNE AND KELLER, INC. and Aetna Casualty & Surety Company.
    No. 83 CA 0077.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Rehearing Denied Dec. 22, 1983.
    Writ Denied Feb. 27, 1984.

      Carey J. Guglielmo, Baton Rouge, for defendant-appellant Payne and Keller, Inc. and Aetna Cas. & Sur. Co.
    Stephen C. Riedlinger, Baton Rouge, for plaintiff-appellee Harley Thornell.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

This is a suit for workmen’s compensation benefits and statutory penalties alleging that the employee is totally and permanently disabled by an occupational disease (silicosis). The employer and its insurer answered the suit and filed a peremptory exception pleading prescription. They also filed a third party demand for indemnification or contribution from the employee’s previous employer and its insurer alleging that the prior employment caused the occupational disease. The previous employer and its insurer filed a peremptory exception of no cause of action to the third party demand.

The trial court overruled the plea of prescription and held that the employee’s occupational disease was causally related to his last employment, that the employee was totally and permanently disabled, that the employer and its insurer acted arbitrarily, capriciously and without probable cause in withholding compensation benefit payments and awarded the employee statutory penalties which included an attorney fee of $6,000. The trial court further determined that the employee’s prior employment was also causally related to his occupational disease but, as a matter of law, the employer had no cause of action against the previous employer and its insurer for contribution or indemnification and sustained their exception. This suspensive appeal followed.

FACTS

In March of 1950, at the age of sixteen, Harley Thornell commenced working for Service Painting Company of Beaumont, Inc. (Service) and remained with them intermittently until March of 1974. During this 24 year interval, he worked 134 months for Service as a sandblaster-painter. During the last 18 months of this employment, he did no sandblasting because he was a working foreman.

During his employment with Service, Thornell used no protective device until 1968 or 1969. At that time, he commenced using an air hood, a protective device that fits over the head, extends down to the waist and provides an air supply. The hood was only used when sandblasting and not while performing other work.

. In March of 1974, Thornell began working for Payne and Keller, Inc. (P & K) as a sandblaster-painter. P & K did not require a physical examination prior to this employment. For the first three or four months of this employment, Thornell was furnished with a desert hood while performing his work. A desert hood is a face mask with no independent air supply. Thereafter, he was furnished with an air hood. After several months, Thornell was promoted by P & K to the position of foreman in which he did no actual sandblasting except in demonstrations to subordinates. Thornell was subsequently promoted to supervisor which enlarged his sphere of responsibility. While acting as foreman and supervisor, Thornell occupied a shed in the area where sandblasting was conducted. He wore no protective device while discharging his duties as foreman and supervisor.

In 1975, Thornell was referred by his family doctor, Dr. Raymond Benski, to Dr. A.W. Harrison, a specialist in thoracic and general surgery, because Dr. Benski found a shadow on Thornell’s chest X-ray. Dr. Harrison first saw Thornell on November 21, 1975, and admitted him to a hospital for diagnostic testing during the period of December 1-10, 1975. Dr. Harrison could not determine that Thornell had cancer or tuberculosis but did find silicosis present in both of his lungs. Thornell was referred back to Dr. Benski. There is no evidence to indicate that Thornell was advised not to continue working in contact with sandblasting or where he would be exposed to silica dust. Thornell continued to work for P <& K.

On October 13, 1980, Thornell went to Dr. Arthur T. Pederson, a specialist in internal medicine and allergies, with complaints of severe chest pains, numbness in the left arm, frequent urination, coughing, episodes of epigastric discomfort and allergy. Dr. Pederson, in cooperation with Dr. Martin L. Kaplan, committed Thornell to a hospital during October 21-25, 1980, for diagnostic testing. Drs. Pederson and Ka-plan diagnosed Thornell’s condition as chronic and mild silicosis of both lungs ,and irritable chronic bronchitis. They recommended that Thornell avoid exposure to sand and discontinue cigarette smoking. He had smoked two or three packs of cigarettes per day for 30 years, and this was a contributing factor in his lung condition. Thornell was advised not to resume any sandblasting activities or be employed where there was silica dust. Dr. Pederson was of the opinion that Thornell could do strenuous work in a proper environment, that is, in a place sand free and where irritating fumes were kept to a minimum.

At the beginning of November 1980, Thornell reported to his supervisor at P & K, Kent Mitchum, that he had silicosis and could no longer work around sandblasting. At first, Mitchum proposed to send Thor-nell to a new location but subsequently laid him off. Thornell then applied for work with Service but was told that he could not be hired in any capacity because of his condition. This suit was filed on April 13, 1981.

PRESCRIPTION

P & K contends that Thornell’s workmen’s compensation claim is prescribed by the six months prescriptive period of La.R.S. 23:1031.1(E) because the silicosis manifested itself in the late 1960’s, this condition was diagnosed by Dr. Harrison in 1975, and he had reasonable grounds to believe that the silicosis was occupationally related.

Prior to July 24, 1980, La.R.S. 23:1031.-1(E) provided as follows:

All claims for disablement arising from an occupational disease are forever barred unless the employee files a claim with his employer within four months of the date of his contraction of the disease or within four months of the date that the disease first manifested itself. Notice filed with the compensation insurer of such employer shall constitute a claim as required herein.

The jurisprudence interpreting this statutory provision held that the mere knowledge by an employee that he had an occupational disease was not a manifestation of disability and the prescriptive period did not commence to run until the employee’s employment actually terminated because of disability resulting from the occupational disease. Crump v. Hartford Accident and Indemnity Company, 367 So.2d 300 (La.1979); LaCoste v. J. Ray McDermott & Co., 250 La. 43, 193 So.2d 779 (1967); 1 W. Malone & H. Johnson, Workers’ Compensation Law and Practice § 221 in 13 Louisiana Civil Law Treatise 468-475 (1980). Effective July 24, 1980, Act 666 of 1980 amended La.R.S. 23:1031.1 to provide in paragraphs E and I as follows:

E. All claims for disability arising from an occupational disease are barred unless the employee files a claim with his employer within six months of the date that:
(a) The disease manifested itself.
(b) The employee is disabled from working as a result of the disease.
(c) The employee knows or has reasonable grounds to believe that the disease is occupationally related.
Notice filed with the compensation insurer of such employer shall constitute a claim as required herein.
I. Notice of the time limitation in which claims may be filed for occupational disease or death resulting from occupational disease shall be posted by the employer at some convenient and conspicuous point about the place of business. If the employer fails to post this notice, the time in which a claim may be filed shall be extended for an additional six months.

It appears that the purpose of this amendment to the law was to codify a good deal of the prior jurisprudence interpreting La. R.S. 23:1031.1(E). See note 89 at page 37 of the 1983 pocket part for 1 W. Malone & H. Johnson, Workers’ Compensation Law and Practice § 221 in 13 Louisiana Civil Law Treatise (1980). An examination of La.R.S. 23:1031.1(E) shows that parts (a), (b) and (c) are not separated either by the disjunctive article “or” or by the conjunctive article “and”. It is well settled that the provisions of the workmen’s compensation statute should be liberally interpreted in favor of workers. Campbell v. Fidelity & Casualty Co. of New York, 339 So.2d 339 (La.1976); Woodard v. J & M Seafood Restaurant, 413 So.2d 536 (La.App. 4th Cir.1982); Johnson v. Aetna Casualty & Surety Co., 387 So.2d 1340 (La.App. 1st Cir.1980), writ denied 393 So.2d 746 (La.1980). After reviewing the prior jurisprudence and applying the above principle of construction, we conclude that parts (a), (b) and (c) of La.R.S. 23:1031.1(E) must be construed in the conjunctive (rather than the disjunctive) and that the existence of all three are necessary for the prescriptive period of that statute to commence. In the instant case, all three of these conditions did not exist until the diagnostic procedures were completed by Drs. Pederson and Kaplan during the latter part of October 1980.

The party pleading prescription has the burden of proving it. Langlinais v. Guillotte, 407 So.2d 1215 (La.1981). La. R.S. 23:1031.1(1) provides that if the employer fails to post a notice of the time limitation in which workmen’s compensation claims may be filed for occupational diseases, the six months prescriptive period of La.R.S. 23:1031.1(E) shall be extended for an additional six months. There is no evidence in the record to show that the required notice was posted. Thornell learned that he was disabled from further work with P & K on October 25, 1980. This suit was filed on April 13, 1981, five months and nineteen days later. The ruling of the trial court dismissing the employer’s plea of prescription is correct and this specification of error is without merit.

CAUSATION

P & K contends that Thornell contracted the silicosis during his employment with Service and that his employment with P & K was not a causative factor in the development of the disease.

An employee has the burden of proving that he contracted an occupational disease as a result of his employment. Howard v. Johns-Manville Sales Corporation, 420 So.2d 1190 (La.App. 5th Cir.1982). Paragraphs A and B of La.R.S. 23:1031.1 provide as follows:

A. Every employee who is disabled because of the contraction of an occupational disease as herein defined, ... shall be entitled to the compensation provided in this Chapter the same as if said employee received personal injury by accident arising out of and in the course of his employment.
B. An occupational disease shall mean 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.

(Emphasis added).

If the employee fails to establish a causal relationship between his employment and the occupational disease, he cannot prevail. Page v. Prestressed Concrete Company, 399 So.2d 657 (La.App. 1st Cir.1981), writ not considered, 401 So.2d 994 (La.1981); Laurendine v. Fischbach & Moore, Inc., 398 So.2d 1220 (La.App. 4th Cir.1981). Occupational diseases (like silicosis) may develop gradually over an extended period of time. 1 W. Malone & H. Johnson, Workers’ Compensation Law and Practice § 219 in 13 Louisiana Civil Law Treatise 457-462 (1980). During the course of the development of the occupational disease and prior to the time that it manifests itself as disabling, a worker may change his employment from that which causes the disease to one that does not. In such a case, the prior employer whose work is causally related to the occupational disease is responsible for compensation benefit payments to the employee. Chivoletto v. Johns-Manville Products Corporation, 330 So.2d 295 (La.1976). Also during the course of the development of an occupational disease, the employee may be employed by two or more employers whose work is causally related to the development of the occupational disease. In this situation, the last employer whose work is a causative factor in the development of the occupational disease is responsible for compensation benefit payments. Carter v. Avondale Shipyards, Inc., 415 So.2d 174 (La.1982). However, if an employee worked for an employer for a period of less than twelve months, he cannot prevail against that employer unless he demonstrates by an overwhelming preponderance of the evidence that the occupational disease was “contracted” during that employment. La.R.S. 23:1031.1(D); Hanlon v. Sline Industrial Painters, Inc., 358 So.2d 700 (La.App. 3rd Cir.1978), writ denied 360 So.2d 1177 (La.1978); Covington v. Rex Painting Inc., 315 So.2d 368 (La.App. 4th Cir.1975), application denied 320 So.2d 558 (La.1975).

Dr. Hans Weill, an expert in the field of pulmonary diseases and specializing in silicosis, testified that sand used in sandblasting breaks up on impact with hard objects and forms minute particles of silica. The inhalation of these particles of silica without adequate protection may cause silicosis. Simply stated, silicosis is an occupational disease which impairs the ability of the lungs to function properly. The rate of progression of silicosis is controlled by the concentration of the dose inhaled and the length of time that the inhalation takes place. Although the record shows that Thornell was exposed to some degree of silica inhalation during his employments with Service and P & K, there is no evidence to show specifically the concentrations of the silica that he inhaled at different times.

Thornell worked for Service for 134 months during the 24 year period from 1950 to 1974. During most of this time, he worked as a sandblaster and did not commence using a protective air hood until 1968 or 1969. Thornell was diagnosed by Dr. Harrison as having silicosis in November of 1975. Dr. Weill was of the opinion that Thornell developed silicosis sometime before the 1970’s. Dr. Weill was also of the opinion that the major contribution to Thornell’s silicosis came from the silica exposure prior to 1974. This evidence establishes that Thornell’s employment with Service was a causative factor in the development of his occupational disease. However, the silicosis did not become disabling for Thornell until October of 1980. At issue is whether or not Thornell’s employment with P & K was also a causative • factor in the development of his silicosis. Carter, 415 So.2d at 176.

Thornell was hired by P & K in March of 1974 as a sandblaster-painter. For three or four months, he worked long hours per day, sometimes seven days a week, using only a desert hood. In November of 1974, he was promoted to supervisor of painting and worked in an area where sandblasting occurred without wearing either an air or a desert hood. Thornell’s office was in the middle of the sandblasting yard and silica dust constantly got into this office. During the period of November of 1974 until October of 1980, Thornell wore no protective device while discharging his duties as foreman or supervisor. The report of Dr. Weill, dated April 14, 1981, filed in the record, contains the following observation:

... It is not necessary to do abrasive blasting to have crystalline silica exposure, and in fact, very often, supervisors and others in proximity to sandblasting are at substantial risk since they are usually inadequately protected....

The testimony of Charles Keys, plant manager for the Placid Refining Company where the P & K operations were conducted, corroborated Thornell’s testimony about his working conditions. In Carter, 415 So.2d at 181, appears the following:

... Drs. Weill and Brown both testified that the concentration of particles was the determining factor in the contraction of silicosis. They also stated that visible dust particles were indicative of an even greater number of invisible particles....

The testimony of Dr. Weill concerning the causal relationship between Thor-nell’s employment with P & K and the development of the silicosis is as follows:

Q You mentioned also that Mr. Thornell in all likelihood would still have mild silicosis even if he had not ever gone to work for Payne & Keller?
A Yes, sir.
Q Do you rule out that working for Payne & Keller has contributed to the degree of silicosis which he has now?
A I couldn’t exclude some contribution to the respiratory status that we see now.
Q Depending upon dosage and things like that?
A Right.
Q Would you also have the same opinion regarding the degree of functional impairment caused by additional inhalation of the silicone dust?
A Yes.
Q In other words, although he would have still have silicosis he may have a worse case because of working for Payne & Keller and he may be more functionally impaired working for Payne & Keller?
A Yes, I think those statements are true. Again, the probability is that the major contribution for all the reasons I think we’ve already discussed would have come from the exposures prior to that.
Q And just to make it clear, that’s without the benefit of specific data regarding dosages?
A Yes.

The trial court concluded Thornell’s exposure to silica dust of an undetermined concentration during his employment with P & K from March of 1974 to October of 1980, was causally related to the development of his disabling silicosis in October of 1980. We have carefully reviewed all of the evidence of record, and although this is an extremely close factual question, there is an evidentiary basis for this ruling and it is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). This assignment of error is without merit.

DISABILITY

P & K contends that the trial court committed error by finding that Thornell was totally and permanently disabled and not permanently partially disabled. The case of Schouest v. J. Ray McDermott & Co., Inc., 411 So.2d 1042 (La.1982) is cited as authority.

An employee who is disabled because of an occupational disease is entitled to compensation benefit payments the same as if he received personal injury by accident. La.R.S. 23:1031.1(A). A workmen’s compensation claimant is totally and permanently disabled if he is unable to engage in any gainful employment. La. R.S. 23:1221(2). Louisiana also has adopted the “odd-lot” doctrine which provides that an employee is totally and permanently disabled if he can establish that because of his physical impairment and other factors, such as mental capacity, education and training, he can perform no services other than those which are so limited in quality or dependability that a reasonably stable market for them does not exist. Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980). An employee who is able to engage in some employment, though not necessarily the type of employment he was engaged in at the time of the accident, is considered to be only partially disabled. La.R.S. 23:1221(3); Dodd v. Nicolon Corporation, 422 So.2d 398 (La.1982); Stracener v. United States Fidelity & Guaranty Company, 420 So.2d 1101 (La.1982). The claimant in a workmen’s compensation proceeding bears the burden of proving to a legal certainty and by a reasonable preponderance of the evidence the nature and extent of his disability. The issue of whether or not he has carried this burden must be determined by examining the totality of the evidence, including both lay and medical testimony. Daney v. Argonaut Insurance Company, 421 So.2d 331 (La.App. 1st Cir.1982).

We adopt as our own the following discussion of the employee’s disability found in the excellent reasons for judgment of the trial judge:

The medical evidence shows overwhelmingly that plaintiff is disabled from working in the presence of silica particles or any similar environment because he is suffering from chronic and mild silicosis which would be aggravated by such an environment.
Dr. Pederson was of the opinion plaintiff could do strenuous work in a proper area meaning an environment free of silica dust and also free of fumes because of plaintiff’s accompanying chronic bronchitis.
Dr. Martin L. Kaplan expressed the view that he would grade the severity of plaintiff’s silicosis “more as a matter of functional impairment and in functional impairment it did not seem that Mr. Thor-nell was severely or even moderately severely impaired.”
In essence, Dr. Hans Weill agreed with Doctors Pederson and Kaplan concerning the severity of plaintiffs silicosis. He was of the further view that some forms of strenuous work would cause plaintiff difficulty.
Plaintiffs testimony is that he was first told by his family physician, Dr. Benski, in 1975 that plaintiff had silicosis. Dr. Benski did not advise plaintiff to stop sandblasting at that time and plaintiff continued working without discomfort or difficulty until 1979 when he began experiencing chest pains. Plaintiff also testified that since October, 1980 he has constant chest pains. Any exertion in hot weather makes him short winded and impairs his breathing. He gets along fine during cool weather. He is unable to run or mow his grass.
Plaintiffs claim for total disability benefits is based on the odd lot doctrine as originally pronounced by our Supreme Court in Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980). Under the odd lot doctrine, an injured employee is entitled to benefits for total permanent disability if he can show that because of physical impairment, lack of education, age, availability of employment in his area and any other relevant factors, that he cannot perform the substantial and material parts of some gainful work or occupation with reasonable continuity and that the services he is capable of rendering are so limited in quality, quantity or dependability that a market for his labor does not exist within which he can reasonably compete. On such a showing plaintiff makes a prima facie case for classification in the odd lot category. Upon producing such proof plaintiff is entitled to benefits for total permanent disability unless the employer shows that there are jobs which will provide plaintiff a steady income or a gainful occupation.
Plaintiff, is 49 years of age, started but did not complete the 10th grade in high school. He began work at age 16; he has had no vocational training. He has had employment experience as a truck driver, warehouseman and as a laundry man during his military career. During the last four or five years of his employment with P & K, during which time plaintiff served as foreman and later supervisor of sandblasters, plaintiff kept time records and made out payrolls for the men under his supervision. Plaintiff contends he can barely read. Since becoming disabled in October, 1980, plaintiff drew unemployment compensation until October, 1981. Since October, 1981, plaintiff has applied for work as truckdri-ver, warehouseman, bricklayer; he also applied for work in self-service grocery stores and auto supply stores without success. He contends he can do only inside work in an air conditioned environment and which requires no heavy lifting.
Curtiss Charrier, Rehabilitation and Vocational consultant, took plaintiff’s work history and other data and made an evaluation. His testing of plaintiff disclosed that plaintiff reads at a level of approximately grade 5; has a spelling level of grade five and one half; and has a math level of grade four and one half, placing plaintiff in the category of below 50 percentile of average. Aptitude tests resulted in a score of below 20% in all but one category. In short, Mr. Charrier found that plaintiff has no transferrable skills which he could use in any area outside his regular employment as sandblaster-painter. He found that while plaintiff is physically capable of doing some work, he is limited in that he cannot stand exposure to silica particles or fumes. He found that plaintiff has no mechanical skills and possesses manipulative skills common to ordinary laboring jobs. In effect, he found that plaintiff can do only special situation jobs for which there is very little demand thus effectively taking plaintiff out of the labor market.
Considering all the evidence, the Court finds that plaintiff falls into the odd lot category because of his silicosis, his lack of training and skill in all but his career profession which skill is not transfer-rable to any other work except common labor which plaintiff can perform only in special environmental conditions, for which type of work there is a limited market.

The trial judge correctly determined that Thornell presented a prima fa-cie case that he was an “odd-lot” employee. Upon this showing, the burden shifted to P & K to prove otherwise. Oster, 390 So.2d at 1323-1324. P & K failed to do so. This case is similar to White v. Johns-Manville Sales Corporation, 416 So.2d 327 (La.App. 5th Cir.1982) and not to Schouest. There is a factual basis for the ruling of the trial court on the issue of disability and it is not clearly wrong. This specification of error is without merit.

STATUTORY PENALTIES

P & K and its insurer, Aetna Casualty & Surety Company, contend that the trial court committed error by determining that they acted arbitrarily, capriciously and without probable cause in denying compensation benefit payments to Thornell and assessing statutory penalties.

Under La.R.S. 22:658, if the insurer of an employer fails to make workmen’s compensation benefit payments and this failure is found to have been arbitrary, capricious, or without probable cause, the insurer may be compelled to pay a penalty of 12% of the total amount of the claim, together with all reasonable attorney fees incurred by the employee in the prosecution of the claim. This statute is penal in nature and must be strictly construed. It should be utilized only in those instances in which the facts negate probable cause for nonpayment. The burden is on the employee to prove entitlement to penalties. Hammond v. Fidelity & Casualty Company of New York, 419 So.2d 829 (La.1982); Moore v. Millers Mutual Fire Insurance Company of Texas, 406 So.2d 708 (La.App. 2nd Cir.1981), writ denied 410 So.2d 1132 (La.1982); Batiste v. Pointe Coupee Constructors, Inc., 401 So.2d 1263 (La.App. 1st Cir.1981), writ denied 409 So.2d 615 (La.1981). Where there is a serious defense presented in good faith, the assessment of the statutory penalties is not appropriate. Shatoska v. International Grain Transfer, Inc., 430 So.2d 1255 (La.App. 1st Cir.1983).

As previously indicated, the factual issue of whether or not Thornell’s employment with P & K contributed to the development of the silicosis was extremely close. P & K had a legal right to litigate this contested issue in court. La. Const, of 1974, art. I, § 22. Its action in doing so was not arbitrary, capricious or without probable cause. The judgment of the trial court concluding otherwise was clearly wrong. This assignment of error has merit. The portion of the judgment assessing statutory penalties (12% of the amount of the claim and the attorney fee) is reversed.

CONTRIBUTION

P & K contends that the trial court committed error by dismissing its third party demand against Service for indemnification or contribution for the workmen’s compensation benefit payments for which it is responsible.

In Carter, 415 So.2d at 181, appears the following:

R.S. 23:1031.1 does not specifically exclude the possibility of contribution by former employers when their working conditions contributed to the occupational disease. Nevertheless, a fair interpretation of 23:1031.1 indicates no intent to depart from the general scheme of the compensation act — the employer at the time of the accidental injury causing disability is responsible for paying compensation benefits....
No provision in 23:1031.1 indicates that employers from years back should share responsibility (for paying compensation benefits) with employers of the worker at the time the disease “manifested itself” and “disabled” the worker. 23:1031.IE. This is consistent with the other provisions of the compensation act, which places responsibility on the employer at the time of the “accidental injury” causing disability, and not on previous employers whose conditions might have made the worker only more susceptible to injury. See Starks v. Hardware Mutual Casualty Co., 231 So.2d 657 (La.App.1970).
The decision to require contribution from a former employer, whose working conditions might have contributed to the occupational disease which ultimately disables the worker, is a policy decision which is best left to the legislature.

This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, that portion of the trial court judgment assessing P & K and Aetna with statutory penalties is reversed. In all other respects, the judgment of the trial court is affirmed. The appellants are cast for all costs of this appeal.

AFFIRMED IN PART AND REVERSED IN PART.

      . Paragraph (E) of La.R.S. 23:1031.1 originally was paragraph (D) when enacted by Act 532 of 1952. Act 644 of 1975 amended the paragraph designation to (E).


source: Caselaw Access Project

author: ALFORD, Judge.

license: Public Domain

text:
    Landry E. GRICE v. Craig H. ALBERT, et al.
    No. 83 CA 0078.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    J.R. Schmidt, Hammond, for plaintiff-appellant.
    Iddo Pittman, Jr., Hammond, for defendants-appellees Craig Albert and Bliss Bundy Albert.
    Curtis M. Baham, Jr., Hammond, for defendant-appellee Reggie Pevey.
    Ernest G. Drake, Jr., Ponchatoula, for defendants-appellees Murna Len Rodriguez, and Douglas W. Cambre, Jr.
    T.J. Seale, III, Hammond, for defendant-appellee Sydney J. Rundell.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

This is an appeal from a judgment of the Twenty-First Judicial District Court, Parish of Tangipahoa, in favor of appellees, Mr. and Mrs. Craig Albert. Appellant, Landry Grice, filed suit for damages allegedly resulting to his property from appellees’ alleged filling in of a natural drain on their property. Additionally, appellant sought to have a mandatory injunction issued ordering appellees to open the alleged drain or to construct an approved alternative drainage plan. The trial judge found that appel-lees had not filled in a natural drain, but rather, had merely filled in certain low spots on their property. Further, the trial judge held that appellant failed to prove that appellees actually caused the damage appellant complained of.

Mr. Grice’s property is separated from the Albert property by a parcel of land owned by a Mr. Bodi. All three tracts are bounded on the north by Selzer’s Creek and on the south by a gravel road. The land was characterized in the testimony as sloping downward towards Selzer’s Creek. The property to the south of the gravel road is of a higher elevation than that of the subject tracts. This, along with the fact that there has been commercial and residential development to the east, has added to the drainage problems of the area as a whole.

When the property which comprises the Grice and Albert estates was initially subdivided, the above mentioned gravel road was installed. In an effort to protect the road from possible flooding, a culvert was placed under the road adjacent to the southeast corner of the Albert property. Additionally, another culvert was placed across from the southern boundary of Mr. Grice’s property in line with an old ditch which crossed appellant’s land as it emptied into Selzer’s Creek. In connection with the construction of the gravel road, a roadside ditch was dug on the north side of the road running down the southern boundaries of the Grice, Bodi and Albert tracts.

In the early summer of 1979, Mr. Grice filled in the ditch which crossed his property. He received permission from the Tan-gipahoa Parish Drainage District to reconstruct the ditch on the eastern boundary of his property. It is this reconstructed ditch, which separates the Grice and Bodi tracts, which has experienced the erosion complained of. Sometime in the fall of 1979, the Alberts began improving their property. Mr. Albert testified that he hired a local contractor who proceeded to bring in dirt to fill in low spots in the land before beginning construction of their home.

At the southeast corner of the Albert property there appeared to be an area washed out from the water flowing through the culvert during times of heavy rainfall. In an effort to prevent further erosion, Mr. Albert placed a board across from the culvert to divert the waters into the roadside ditch. Mr. Grice alleges that Mr. Albert’s placing of this board and filling in his land has caused an increase in the amount of drainage his property receives, thereby causing his reconstructed ditch to erode.

The evidence presented at trial shows that a natural depression exists across Mr. Bodi’s property starting at Selzer’s Creek and continuing southeast as it approaches the Albert tract. There is a conflict in the testimony regarding the continuation of this natural depression onto the Albert property prior to the property being improved. Several of the witnesses testified that in fact the depression partially extended across the Albert’s land. Other witnesses testified that the Albert tract merely contained certain low spots, rather than the ravine topography found on the Bodi property. The trial judge, who was in the best position to judge credibility, obviously believed the testimony of two local residents. Both of these witnesses, who were familiar with the area prior to the Albert improvements and who had been on the property on more than one occasion, testified that the land merely contained certain low spots rather than anything which resembled a ditch across it. Based on the evidence presented, the trial judge found that the Alberts had not filled in a natural drain.

Additionally, the court went on to note it was impossible to determine if appellant’s having reconstructed the ditch which ran across the land, rather than appellee’s filling in -the low spots on his land, caused the erosion problem. The trial judge noted that the previously existing ditch on appellant’s land had never eroded. There was testimony to the effect that the new reconstructed ditch was devoid of vegetation and thus subject to severe erosion.

It is important to note that the Albert estate is neither dominant nor servient in reference to the Grice estate. It is clear from the record that prior to the installation of the roadside ditch, the Grice estate received no natural waters from the Albert property. Additionally, we note that in an effort to resolve the problems between Mr. Grice and Mr. Albert, the Tangipahoa Parish Police Jury has implemented an alternative drainage plan as recommended by a consulting engineer.

Appellant complains that the trial judge erred in finding that Mr. Albert merely filled in low spots on his land rather than filling in a natural drain. As noted above, the testimony in this case was lengthy and contradictory. We are of the opinion that the factual conclusion reached by the trial court is supported by sufficient evidence and thus should not be disturbed on review. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Appellant next argues that the trial judge erred in not finding that Mr. Albert’s actions directly caused the complained of damages. Whenever recovery is based upon another’s use of his property, the injured party must prove causation between the owner’s acts or omissions and the resulting damage. Patterson v. Garic, 411 So.2d 1091 (La.App. 4th Cir.1982), writ denied, 415 So.2d 950 (La.1982). The trial court found that appellant failed to prove by a preponderance of the evidence that Mr. Albert’s actions directly caused Mr. Grice’s damages. He based this conclusion on the fact that, given the time frame of the events, he was unable to determine from the evidence whether Mr. Albert’s actions or appellant’s actions in reconstructing his ditch actually caused the damage. Appellant simply failed to meet his burden of proof.

For the foregoing reasons, the judgment of the trial court is affirmed, and appellant is cast with costs of this appeal.

AFFIRMED.


author: COLE, Judge.

text:
    Bennett RAYFORD and Rosalee Rayford v. SAIA MOTOR FREIGHT LINES, INC., Transport Insurance Company and Clavon J. Smith, Jr.
    No. 83 CA 0091.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      John S. Thibaut, Jr., Baton Rouge, for plaintiffs-appellants.
    James Moore, Baton Rouge, for defendants-appellees.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

The major issue in this wrongful death and survival action is whether or not defendant Clavon J. Smith, Jr. was at fault in causing plaintiffs’ son’s injuries and death.

These facts gave rise to the litigation: On October 24, 1980, Clavon Smith was driving a tractor-trailer rig for his employer, Saia Motor Freight Lines, Inc. (Saia). At about 3:30 A.M. he was proceeding north on La. Hwy. 61, in West Feliciana parish, near Laurel Hill, Louisiana. Mr. Smith was following another tractor-trailer rig, being driven by Marvin McCon. Smith estimated his speed at 25 to 30 miles per hour, while McCon testified the two trucks were going a maximum of 40 miles per hour. The night was described by all those who testified as “foggy” and “dark.” Mr. Smith stated he was following the other truck at a distance of 300 to 400 feet while Mr. McCon estimated the distance to be 35 to 40 feet. At one point in his deposed testimony, McCon said it was “forty feet at least.” The trucks traveled together for a period of five to ten minutes when Smith noticed McCon’s truck had swerved suddenly onto the right shoulder. Smith wondered what caused the truck to do so and in the next instant saw “something blue” on the roadway and felt his truck run over the object. He proceeded down the road to the weigh station and requested the employee there to drive him back to the scene of the incident because he wanted to ascertain what he had hit. When they arrived at the scene they discovered the “object” had been Bennett Rayford, Jr., a 31-year-old black male. An unidentified person was administering mouth-to-mouth resuscitation to Mr. Rayford, but he died a few moments later.

Medical evidence showed that at the time of his death Rayford’s blood alcohol content was 0.17 per cent. The testimony of the two witnesses, McCon and Smith, established clearly Rayford was lying motionless in the center of the northbound lane at the moment of impact. He was apparently asleep or unconscious. Testimony by various law enforcement officials established there had been previous incidents in which the decedent had been found asleep and intoxicated in the roadway.

Rayford’s parents, Bennett and Rosalee Rayford, filed a wrongful death-survival action against the driver of the truck, Smith; his employer, Saia; and Saia’s insurer, Transport Insurance Company. After a trial by jury a verdict was rendered in favor of all defendants and against the plaintiffs, finding Smith to be free of fault. Plaintiffs then filed this appeal.

Plaintiffs raise three errors on appeal. The first two deal with the trial court’s refusal to exclude from the jury all evidence of Mr. Rayford’s previous occasions of intoxication and lying in the roadway. Plaintiffs insist the holding in Baumgartner v. State Farm Mut. Auto Ins. Co., 856 So.2d 400 (La.1978), rehearing denied 1978, stands for the proposition the plaintiff’s contributory negligence is no longer a bar in pedestrian-motorist cases, therefore any evidence attempting to establish Mr. Ray-ford’s contributory negligence is inadmissible. Plaintiffs contend the evidence indicating the decedent had a history of alcoholism and a pattern of sleeping in the road was aimed at establishing his contributory negligence and was so prejudicial as to cause the jury to render a verdict which was highly influenced by this irrelevant evidence.

While we agree the evidence concerning prior incidents of intoxication may have been irrelevant, for reasons explained below, and may have prejudiced the jury, we do not find the introduction of such evidence to necessitate a reversal of the jury verdict. It has been held when evidence has been improperly admitted which might have unduly prejudiced the jury, the appellate court is required to make an independent finding as to liability. Suhor v. Gusse, 388 So.2d 755 (La.1980); Baker v. D.H. Holmes Company, Ltd., 285 So.2d 282 (La.App. 4th Cir.1973); Cambrice v. Fern Supply Co., Inc., 285 So.2d 863 (La.App. 4th Cir.1973). Therefore, based on our independent review of the evidence, we address plaintiffs’ other assigned error: whether or not the evidence at trial proved Clavon Smith to be negligent.

After carefully reviewing the record we are satisfied the plaintiffs failed to prove by a preponderance of the evidence Mr. Smith was negligent. We reach this conclusion without regard to certain facts which plaintiffs contend were used to establish Mr. Rayford’s contributory negligence. It is irrelevant whether or not Mr. Rayford had a history of alcoholism and whether or not he had slept in the road on other occasions. It is even irrelevant (except to explain how he happened to be in the road asleep) that he was intoxicated the night of the accident. The pertinent facts concerning Mr. Rayford’s actions were that he was lying motionless in the middle of the northbound lane of traffic on a rural, unlighted highway at 3:30 A.M. on a foggy night. These are not facts which relate to his contributory negligence but are simply the facts which establish the setting of the accident.

Although the testimony of the two witnesses was conflicting, we are satisfied Mr. Smith established he was proceeding at a safe speed and at a safe distance behind the other truck. The composite testimony of the truck drivers discloses their speed to have been anywhere from 25 to 40 miles per hour. It is obvious they were in full compliance with La.R.S. 32:64, which requires that one drive within the maximum speed limit established and at a speed no greater than that which is reasonable and prudent, considering the existing weather conditions. As regards the distance between the two vehicles, McCon testified: “I’ll tell you it’s hard to say looking back down a trailer and looking at lights in the fog, but I would say he was some thirty-five or forty feet behind me.” At another point in his deposed testimony, McCon said: “Whenever I swerved over to miss the object, I never looked back until I was sure I was clear of the object and whenever I knew I was clear of the object I started back on'the lane and I would see his lights, you know, coming straight through. He didn’t swerve one way or the other. * * * He tried to straddle it.” This testimony is highly indicative of Smith being behind McCon a great deal farther than 40 feet. Even if Smith was not in strict compliance with La.R.S. 32:81(B), (prohibiting a “motor truck” from following another one within 400 feet), his violation was not causative of the accident. The greatly reduced speed at which the trucks were traveling negated the obvious purpose of the 400 foot requirement, i.e., to avoid rear end collisions and allow faster moving traffic more room to pass safely. Having complied with the law by reducing their speed commensurate with existing conditions, there was no risk created by not maintaining a 400 foot separation. Night driving and a heavy fog limited the driver’s visability which, in turn, dictated the combination of speed and distance necessary for safe travel.

We recognize a motorist has a high degree of care imposed upon him and must be ever aware of objects which may appear in his lane of traffic. However, we would be imposing an unreasonable duty were we to say in a situation such as this, with the driver proceeding at a reasonable speed and at a reasonable distance behind the lead vehicle, that he should have seen the man lying in the middle of his lane of traffic. Considering the lighting conditions, the fog conditions, the fact that it was a black man wearing dark clothing, lying motionless in the middle of the lane of traffic, we cannot say this driver was negligent in failing to observe this person in time to avoid the accident.

Plaintiffs contend that because Mr. McCon was able to avoid striking the decedent, Mr. Smith was obviously negligent in failing to do the same. We disagree. Since Mr. McCon’s truck had no other vehicle in front of it, he would naturally be concerned only with the road surface. He had a better field of vision than the second truck, his vision being limited only by the darkness and the weather conditions. Mr. Smith, on the other hand, testified that because of the fog he was watching McCon’s taillights in order to steer his truck more accurately. When the McCon truck swerved, Mr. Smith’s vision was focused on the taillights in front of him. He testified by the time he became aware the preceding truck had swerved, he saw the “flash of blue” and realized he had hit an object in the road. Nothing in this scenario seems unreasonable to us. Mr. Smith acted and reacted as a reasonable truck driver under the circumstances. In addition, Mr. McCon testified he only “barely missed” striking “the object” by suddenly swerving the truck off the roadway. He stated he did not recognize the object as being a person. Under these circumstances the facts indicate only that Mr. McCon was extremely fortunate in avoiding striking Mr. Rayford, rather than that Mr. Smith was negligent in failing to be able to do the same.

Because appellants rely so strongly on the Baumgartner decision, we feel it is worthwhile to note a recent interpretation of it by the Supreme Court. In Aetna Cas. and Sur. Company v. Nero, 425 So.2d 730 (La.1983) a motorist, driving at night, struck a pedestrian who attempted to cross the street in an area not marked as a crosswalk. The injured person was a black male, dressed in dark clothes, and was found to be intoxicated. The driver of the car was found -to be sober and driving well within the speed limit. The trial court found no negligence on the motorist’s part, this court reversed, finding she had been at fault [415 So.2d 390 (La.App. 1st Cir.1982) ] and the Supreme Court reversed this court, agreeing with the trial court no fault had been proved.

The Supreme Court in Aetna explained its earlier decision (Baumgartner) as follows on p. 733:

“The Court of Appeal appears to have misapplied Baumgartner in-the instant case. In Baumgartner this Court stated that in motor vehicle/pedestrian collisions, contributory negligence is not available as a defense and thus the last clear chance doctrine, used to avoid the harsh results of contributory negligence, is not at issue. That ruling was designed to compensate for the lack of mutuality of risks involved between motor vehicles and pedestrians. However, we did not impose absolute liability on a driver of an automobile simply when there is a collision between a car and a person. Nor did we say that the motorist is to be held liable irrespective of fault on his part. In fact, in Baumgartner we clearly stated ‘that a motorist who exercises all reasonable care to protect a pedestrian, who nonetheless suffers injury, is not at fault. ’ 356 So.2d at 406. The operator of a motor vehicle must therefore be at fault in order to be held liable. This requisite was not eliminated by Baumgartner.” (Emphasis added.)

Using this interpretation as a guideline, we conclude the motorist in this case indeed exercised “all reasonable care” to protect the pedestrian. However, the circumstances surrounding the incident made the accident unavoidable. To impose liability in this case would indeed be inflicting an “absolute liability” on the driver simply because there had been an accident involving a “pedestrian” and a motorist.

For these reasons the judgment of the trial court is affirmed. Costs are to be paid by appellants.

AFFIRMED.

      . Although Mr. Smith’s first name is listed as "Clavon” on the petition, at trial it is listed as "Claybourn.”

      . See Corkern v. McWilliams, 228 So.2d 236 (La.App. 1st Cir.1969), a case with similar facts, in which this court found no liability on the part of a motorist who struck a man lying in the road at night. See also Osby v. Harris, 375 So.2d 181 (La.App. 2d Cir.1979), a case with facts even more favorable to plaintiff, in which recovery was denied when the pedestrian suddenly crossed a highway in an area where there was no crosswalk.

      . It is questionable whether the person struck and killed by defendant can, in legal contemplation or by definition, be termed a "pedestrian.” He was not walking, running, traveling on foot, or otherwise engaged in the use of his body to transport himself from one place to another place. However, even with that more favorable legal status, which we have accorded him for purposes of this opinion, there is no liability to be assessed herein.


author: EDWARDS, Judge.

text:
    N.G. CARTWRIGHT v. DEPARTMENT OF REVENUE AND TAXATION.
    No. 83-CA-0098.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      James A. Rountree, Hudson, Potts & Bernstein, Monroe, for first appellant.
    Howard M. Romaine, Dept, of Revenue and Taxation, Baton Rouge, for second appellant.
    Robert R. Boland, Jr., Dept, of State Civil Service, Baton Rouge, for Herbert L: Sumrall Director of the Department of State Civil Service.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

N.G. Cartwright appeals the decision of the Civil Service Commission, upholding his termination from the Department of Revenue and Taxation, where he was employed as a Revenue Tax Auditor III. For the reasons expressed below, we remand this matter to the Commission for further proceedings.

BACKGROUND FACTS

After suffering a heart attack in August, 1980, Cartwright returned to work on a part-time basis in late October. Fred Uss-ery, Cartwright’s supervisor, was unsatisfied with his work, and suggested to Nellie Littleton, Ussery’s secretary, that she talk with Cartwright about taking disability retirement. Upon hearing of Ussery’s complaints from Littleton, Cartwright became upset and confronted Ussery on the matter in his office at the end of the day. What exactly occurred in Ussery’s office is disputed, with Ussery claiming Cartwright threatened him, and Cartwright stating Ussery started the fracas. Regardless, both men exited the office arguing loudly, with Cartwright removing his coat and tie and challenging Ussery to fight. Littleton stepped between the men who subsequently calmed down and went home.

The Commission concluded in its decision of September 15, 1982, that Cartwright was insubordinate in inviting Ussery outside to fight. Both parties have appealed certain findings of the Commission. However, we do not reach these issues because of our remand for the reasons expressed below.

EXAMINATION OF TRANSCRIPT

The instant matter was heard by a referee on February 2, 1982, as specifically permitted by Article X, sec. 12 of the Louisiana Constitution of 1974. The Commission opinion states in pertinent part:

“A public hearing was held in Monroe on February 2, 1982, before a referee appointed by the Commission. The sound recordings of the proceedings, the exhibits offered into evidence and the record have been furnished to the Commission for its consideration, from which it makes the following findings.”

Under Goudeau v. Dept. of Public Safety, Div., Etc., 349 So.2d 887 (La.App. 1st Cir.), writ denied, 351 So.2d 165 (La.1977), the Commission members must read and examine the transcript of testimony as made up before the referee, before arriving at an opinion or determination. Furthermore, the opinion must indicate that a due reading and examination has taken place. Wells v. Department of Corrections, Etc., 417 So.2d 377 (La.App. 1st Cir.), writ denied, 420 So.2d 983 (La.1982).

Here, the opinion merely indicates that the sound recordings, exhibits and record were furnished to the Commission for its consideration. It does not state that the Commission read and considered the transcript of testimony. Moreover, it is doubtful whether the transcript of testimony had been prepared when the Commission’s decision was filed. The record reveals that an extension for the return day on appeal was granted because there was an eight-minute gap discovered during the transcribing of the hearing tapes. Stipulations were obtained from the parties regarding this unrecorded testimony.

Furthermore, although the instant matter turns on the credibility of witnesses, particularly Ussery and Cartwright, the referee’s evaluation of testimony is not in the record. In order that a discharged employee will receive a full and fair review of his termination, these recommendations must be present in the record when a referee is used to hear testimony and the discharge of the employee turns upon the credibility of witnesses. Wells, supra.

Accordingly, this matter is remanded to the Civil Service Commission for further proceedings not inconsistent with the views expressed herein. All costs to await a final determination of this matter.

REMANDED.

      . We note that La. Const. Art. X, sec. 12, has been amended. This amendment gives the referee the power to decide cases and also provides for the decision of the referee to become the final decision of the Commission in certain cases. The amendment became effective on October 15, 1982. The hearing and decision of the Commission on the merits occurred prior to the amendment; thus, the referee in the instant case did not have decision-making powers.


author: SHORTESS, Judge.

text:
    Alvin THOMAS v. DEPARTMENT OF CORRECTIONS, OFFICE OF PROBATION AND PAROLE.
    No. 83 CA 0099.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      James A. Gray, II, Jefferson, Bryan & Gray, New Orleans, for appellant.
    James A. Wayne, Asst. Atty. Gen., Dept, of Justice, Baton Rouge, for appellee.
    Robert R. Boland, Jr., Civil Service Legal Counsel, Dept, of Civil Service, Baton Rouge, for Herbert L. Sumrall, Director of the Dept, of State Civil Service.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

Alvin Thomas was dismissed from his permanent position as Probation and Parole Specialist I with the Louisiana Department of Corrections. By letter dated November 25, 1981, and signed by John T. King, Secretary of Corrections, Thomas was given written confirmation of his suspension of November 19, 1981, and was advised of his termination effective December 3, 1981. The letter charged Thomas with violation of Department of Corrections Employee Rules and Procedures No. 13(c) which provides that “[n]o employee shall take or attempt to take the property of inmates or the state, nor use such property for his benefit or the benefit of another.” The letter specified that on November 19, 1981, Thomas borrowed $20.00 from one of his probationers.

On December 14, 1981, Thomas appealed his termination to the Civil Service Commission. He set forth two bases for the appeal: '(1) that he was terminated for making an honest mistake, and (2) that the disciplinary action taken was too severe. A hearing was held before the Commission. The Commission found that Thomas admitted that he borrowed $20.00 from Jeffery Latten, one of , his probationers. The Commission further found that the borrowing of money by a probation officer from an individual on probation “totally destroys the proper working relationship” between said individuals and that “the probation officer’s individual credibility, as well as the credibility of all probation officers, is adversely affected when the situation complained of herein is allowed to exist.” The Commission concluded that the appointing authority acted properly in dismissing Thomas.

In this court, Thomas contends that (1) borrowing money does not violate Department of Corrections Employee Rules and Procedures No. 13(c) and that,(2) dismissal was too harsh.

The decisions of the Commission are subject to review on any question of law or fact. La. Const, art. X, § 12; Dundy v. Louisiana State University, Etc., 394 So.2d 650 (La.App. 1st Cir.1980). It is well established that the standard of review in cases on appeal from the Commission is the same standard used in reviewing decisions from the trial courts. The factual determinations of the Commission will not be set aside unless they are shown to be manifestly erroneous. Department of Public Safety v. Rigby, 401 So.2d 1017 (La.App. 1st Cir.1981), writ denied, 406 So.2d 626 (La.1981); Albert v. Louisiana State Penitentiary, 396 So.2d 340 (La.App. 1st Cir.1981).

Thomas admitted, both in his letter of appeal to the Commission and in his testimony at the hearing, that he borrowed $20.00 from an individual under his supervision. Furthermore, he stated in his letter of appeal that “I realize that what I did was wrong and disciplinary action should be taken....” Although Thomas did not read the employee rules and procedures book, he signed a document which stated that he had received a copy of the rule book and understood that he was expected to be familiar with its contents. Thomas stated that at the time of the loan he did not realize that the loan created a conflict of interest. However, he testified at the hearing that it was “now” blatantly obvious to him that borrowing money from probationers was improper. We agree with the finding of the Commission that Thomas violated rule 13(c).

A person who has gained permanent status in the classified State service may be subject to disciplinary action if the conduct complained of impairs the efficiency of the public service and bears a real and substantial relation to the efficient and orderly operation of the public service in which the employee is "engaged. Williams v. Department of Public Safety, Etc., 415 So.2d 543 (La.App. 1st Cir.1982). Testimony revealed that when probation officers borrow money from those under their supervision, their effectiveness is destroyed. This is partly due to the fact that the individual from whom the loan is requested does not perceive that he has a free choice to reject the request. Edward Nick, the district administrator, testified that he and others deliberated at length before they decided to fire Thomas but concluded that termination was necessary because his actions threatened the integrity of the office. We agree with the Commission that the appointing authority sustained its burden of proof and that the action taken was proper. Its decision is affirmed at appellant’s costs.

AFFIRMED.

      . Although rule 13(c) does not specifically state that loans are proscribed, borrowing money comes within the prohibition against using property of probationers “for his benefit or the benefit of another.”


text:
    Bobby ESCHETE v. GULF SOUTH BEVERAGES.
    No. 83 CA 0106.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Leslie J. Clement, Jr., Thibodaux, for plaintiff-appellee Bobby Eschete.

      Huntington Downer, Jr., Houma, for defendant-appellant Gulf South Beverages.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

This is a worker’s compensation suit filed by plaintiff-appellee, Bobby Eschete, against defendant-appellant, Gulf South Beverages, claiming total and permanent disability as a result of back injuries allegedly sustained in two job related accidents, for medical expenses, and for penalties and attorney’s fees due to the failure of defendant to timely pay compensation benefits.

The trial court found as a matter of fact that plaintiff has been temporarily totally disabled since October 28, 1980, and that plaintiff was entitled to the appropriate benefits since that date and throughout plaintiff’s disability subject to a six-week credit when plaintiff had been gainfully employed. Secondly, the court ordered defendant to reimburse plaintiff for all medical and travel expenses expended through the date of the trial and for any future expenses incurred during the disability. Finally, the defendant was cast for all costs.

From the award the defendant has appealed alleging four specifications of error. Two of the specifications relate simply to the trial court’s decision in favor of Es-chete, and as such, will be addressed together. Of the other two, one asserts the trial judge erred when he decided the case from the bench without reading the depositions submitted as exhibits; the other argues that the district court erred in not finding that the cause of action stemming from one of the accidents had prescribed. Plaintiff answered the appeal seeking penalties and attorney’s fees and an increase in the award from total but temporary to total and permanent disability.

The record reflects that plaintiff, a twenty-eight year old husband and father with a twelfth grade education and no special training, worked for the defendant as a delivery man. Plaintiff’s responsibilities consisted of delivering cases and cartons of soft drinks to various business establishments in Southeastern Louisiana. The job required frequent bending, stooping and lifting.

In February of 1980, plaintiff was delivering soft drinks to a supermarket in Galli-ano. After climbing high up on his truck, plaintiff slipped and fell landing directly on his tailbone. Unable to sit down but for short periods of time, plaintiff was paid worker’s compensation until being released to go back to work in late July, 1980.

Subsequent to this point, on or around October 28, 1980, plaintiff was once again on the job delivering bottles for the defendant when he suffered a second accident. While bending down to replace soft drink bottles he had knocked over, plaintiff came in contact with a fire extinguisher, apparently unhooking it from the wall. Before the extinguisher fell to the ground, it struck Eschete square in the middle of his back. The following day plaintiff began seeing a Dr. Neil Maki for this second injury. Though bruised and sore, plaintiff returned to light duty work between the day of the accident and mid-December when he was forced to stop because of pain. Plaintiff was paid compensation for the period beginning December 30, 1980, and extending through January 11, 1981. Yet, by the end of February, plaintiff was back on the job performing the same work he had prior to the accident. However, by the middle of March, the pain in plaintiff’s back grew so intense he had to stop work completely. Except for a few weeks later in the year when plaintiff aided a friend doing some carpentry work (but had to stop because of pain), plaintiff has not worked since March of 1981.

Defendant asserts that the evidence simply does not support the contention that plaintiff is totally and temporarily disabled. On the other hand, plaintiff argues that when the evidence is considered in light of the applicable law, plaintiff should receive benefits for total and permanent disability. Before we consider this particular issue, we must first address a motion in opposition to plaintiffs supplemental answer to defendant’s appeal.

The record reflects that plaintiff filed a timely answer to defendant’s appeal seeking penalties and attorney’s fees. Subsequent to this time, and more than 15 days after the passage of the return day, plaintiff filed a supplemental answer to the appeal. In addition to the relief sought in his original answer, the supplemental answer requests that the lower court’s judgment be modified in plaintiffs favor by declaring Eschete totally and permanently disabled as opposed to the total but temporary appellation ascribed by the district court. Although the supplemental answer was filed with leave of court, the defendant has filed a motion to have plaintiff’s supplemental answer dismissed as untimely.

La.C.C.P. art. 2133 provides as follows:

An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. In such eases, he must file an answer to the appeal, stating the relief demanded, not later than fifteen days after the return day or the lodging of the record whichever is later. The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer. Additionally, however, ah appellee may by answer to the appeal, demand modification, revision, or reversal of the judgment insofar as it did not allow or consider relief prayed for by an incidental action filed in the trial court. If an appellee files such an answer, all other parties to the incidental demand may file similar answers within fifteen days of the appellee’s action.

Defendant argues that the supplemental answer should be dismissed as untimely because it was filed more than 15 days after the return date. He cites several cases supporting the proposition that where an answer to an appeal is untimely, it cannot be considered by the appellate court. These cases, however, are factually distinguishable from the present case.

While it is generally true that where an answer to an appeal is filed more than 15 days after the record is lodged with the appellate court it will be considered as untimely, nevertheless, we think fairness requires the consideration of plaintiff’s supplemental answer in this case. First, it must be remembered that the appellee filed his original answer timely, thereby placing defendant on notice that plaintiff was not satisfied with at least some portions of the trial court’s judgment. Second, appellee’s supplemental answer does not raise any issue that appellant has not been aware of, or has not prepared for, since the inception of this case. Third, since the supplemental answer was filed in March of 1983, and this case was not placed on the docket until October of 1983, defendant has had ample opportunity to address the issue raised in appellee’s supplemental answer. Thus, we think that where an appellee timely files an answer to an appeal, later supplements that answer more than 15 days after the return date with leave of court, but raises no new issues and affords an appellant ample time within which to respond to the supplemental answer, then pursuant to the powers vested in the court by La.C.C.P. art. 2164, it is both just and efficient to consider the supplemental answer.

In this respect, it is interesting to note that under the old Code of Practice of 1870, article 890, an appellee was given up until three days before the date fixed for argument of the case to file his answer. The theory being, of course, that any points raised in the answer could be addressed at oral argument. (It also had the beneficial effect of placing more emphasis on oral argument than most attorneys do today). Now, the court is not unmindful of the explosion in the number of cases in recent years, and the resultant time pressures on many attorneys, and we can see the raison d’etre for the changes in the new code, nevertheless, we think that the old practice can serve as some guidance for the new, and as such, we do not think that the appellant has been prejudiced in any way. Accordingly, appellant’s motion to dismiss appellee’s supplemental answer is denied, and the court must decide whether plaintiff should receive total and permanent benefits as opposed to total and temporary benefits awarded by the trial judge.

The trial judge summed up the evidence very succinctly when giving his reasons for judgment:

I can understand that the reason why compensation payments could have been stopped as a result of the medical reports which were issued in this case, but I also know that doctors are not infallible. In fact this is a classic case where you might have three or four doctors saying one thing and two or three doctors saying something else. But that does not give the claimant any relief. The Court is of the opinion that on the date of October 28, 1980, the plaintiff suffered an injury while in the course and scope of his employment. The Court further finds that as a result of this accident the plaintiff did sincerely try to go back to work. That he was unable to perform the duties of the job with to which he had been employed to do, that he continuously tried until he could no longer stand the pain. The Court feels very strongly that Mr. Bobby Eschete and his wife told it as it is to the Court. The man did suffer an injury that did cause some disability and later on caused anxiety and discomfort, both physically and mentally. That as a result of the injury he is presently totally disabled.

It is the trial judge’s responsibility to examine the totality of the evidence, both medical and lay, in making a determination of whether to grant an award of worker’s compensation benefits for disability. Simpson v. S.S. Kresge Company, 389 So.2d 65 (La.1980). The trial court’s decision should not be overturned absent a showing of a clear abuse of discretion. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973). It has been held that this standard of review applies to the lower court’s determination on the question of disability. Batiste v. Pointe Coupee Constructors, Inc., 401 So.2d 1263 (La.App. 1st Cir.1981), writ denied, 409 So.2d 615 (La.1981).

We have thoroughly reviewed the numerous depositions and medical reports in this case and we have no hesitation in agreeing with the trial judge’s conclusion that the plaintiff suffered a disabling injury due to the October 28, 1980, accident and that he can no longer work without substantial pain. Our review of the record conclusively establishes that the trial court’s decision was correct and we refuse to disturb it on appeal. When the totality of the evidence is examined in this case, one comes away with the unmistakable conclusion that the plaintiff has suffered a disabling injury, and that the disability was continuing at the time of the trial.

When Dr. Pete Rhymes, the orthopedic surgeon who treated plaintiff for his first injury, was asked what effect a purported pre-existing spondylolisthesis condition Es-chete suffered from might have, he replied:

A. I would recommend ... that he not be hired for any occupation which requires any lifting or straining of the back.
Q. I think what you’re saying is that he would not be able to keep up with an able bodied worker?
A. Probably not_
Doctor, I get the impression from you (sic) letter that Bobby will be limited in obtaining a job involving work of a manual nature? £5
Yes, sir. <d
And I further get the opinion that were he applying for a job where there were other applicants who did not have this condition, he would be at a complete disadvantage with these other people? <y
That’s correct, sir.

It is significant to note that prior to the accidents suffered by plaintiff, the depositions reveal that the spondylolisthesis condition was asymptomatic.

Dr. Neil Maki, another orthopedic surgeon, who treated plaintiff for the October accident, stated in his deposition that after seeing Eschete in November and December of 1980, he told plaintiff to avoid climbing, or lifting over thirty pounds, and any trauma to his back whatsoever. Additionally, Dr. John Jackson, a Houma neurosurgeon who examined plaintiff at the request of Dr. Joseph Powell, plaintiffs family physician, testified that while he did not see any spondylolisthesis, nevertheless, plaintiff may have some protrusion of his disc at the L5 level. Dr. Jackson was of the opinion that further testing and treatment was required and that plaintiff was sick “one way or the other. And I think he needs to get treated before he’s going to get well.” Finally, there is the deposition of Dr. Powell. Because he has been treating plaintiff since he was seven years old, through perhaps fifty office visits, Dr. Powell was probably in the best position to judge Eschete’s overall health. In this regard, Dr. Powell states:

A. ... I confirmed in my mind that he in truth had some problem, had problems with his back. He had the spasm, limited motion, the positive straight leg raising bilaterally ...

In response to plaintiff’s counsel’s question as to Eschete’s ability to work, Dr. Powell replies:

A. I don’t think Bobby can work right now. I’ve forgotten how many times he’s gone back and tried to work, at least two or three times, a work effort, and he’s not been able to do it on the job.... So I don’t think that Bobby can do any type of gainful employment.

Thus, the evidence in the record is overwhelming that plaintiff is disabled and was so at the time of the trial. Moreover, there has never been any opinion as to when plaintiff may be diagnosed healthy. Plaintiff simply is unable to work in any gainful employment without substantial pain, and the trial court’s decision in this respect is clearly supported by the evidence.

However, the trial court was incorrect in awarding only temporary benefits. In Walker v. Gaines P. Wilson & Son, Inc., 340 So.2d 985, 987 (La.1976) Justice Tate wrote as follows:

A judgment for total permanent disability should be awarded when the claimant is shown to be totally disabled at the time of trial and the duration of such disability is indefinite or the evidence does not clearly indicate its duration. Montgomery v. Delta Concrete Products Co. Inc., 290 So.2d 769 (La.App. 1st Cir.1974); Blazier v. Georgia-Pacific Corporation, 801 So.2d 701 (La.App. 3d Cir.1974); Deville v. Travelers Insurance Company, 176 So.2d 824 (La.App. 3d Cir.1965); Harris v. Argonaut Insurance Company, 142 So.2d 501 (La.App. 2d Cir.1962); Louisiana compensation law has accepted this as established principle since at least Connell v. Gilliland Oil Company, 2 La.App. 435 (2d Cir.1925). Malone, Louisiana Workmen’s Compensation Law Section 280 (1951).

The evidence in this case did not indicate the duration of plaintiff’s disability, and thus the trial court was in error in awarding only temporary benefits even if the court felt that there was a possibility the disability might lessen over the course of time. As such, the judgment will be modified to increase plaintiff’s benefits to those of total and permanent disability. Accord Glover v. Southern Pipe & Supply Company, 408 So.2d 352 (La.App. 4th Cir.1981), writ denied 412 So.2d 86 (La.1982).

In another specification of error the defendant alleges that the trial judge erred when he rendered a decision from the bench without reading all of the depositions entered into evidence. After both plaintiff and defendant had rested their cases, the court allowed each side to present closing arguments. Subsequent to this time the court issued oral reasons for judgment which provided, in part, as follows:

The Court has not had the benefit of reading the depositions of all of the doctors. The Court has had the use of medical statements and doctor’s statements and as a matter of practice and I think both counsel agree that the depositions of these doctors usually is a statement read into a deposition, if you will, reading from their medical reports and they follow their medical reports to a “T”. So it’s a repetition and that’s why a lot of times I prevail on the lawyers to get medical reports from the doctors and try to save the cost of depositions.

While we do not sanction the rendering of a decision without reading depositions where there is a medical report in every case, we take pains to note that the above statement of the trial judge was totally accurate. After reading the medical reports and depositions, it is obvious that in this case most of the doctor’s deposition testimony was exactly the same as the medical reports. Indeed, some of the answers to questions in the depositions are taken from the medical reports word for word. Thus, to the extent that a large portion of the trial judge’s responsibility is to weigh the relevant evidence and then come to a conclusion based on that evidence, such responsibility was carried out properly and effectively in this case and the defendant’s assertions otherwise are rejected.

Finally, defendant raises the issue of prescription in his brief as another specification of error. Although defendant’s brief is confusing on this matter, apparently defendant is alleging that the cause of action based upon the February, 1980, accident has prescribed. Compensation was paid to plaintiff because of this accident until July 30, 1980. Plaintiff’s supplemental and amending petition alleging this accident as a cause of action was not filed until January 13, 1982, more than a year after the compensation payments ceased. However, defendant’s argument cannot avail for two reasons. First defendant did not file a formal pleading raising this exception at either the trial or appellate level, rather he merely raises the issue in his brief. It is well settled law that although an exception of prescription may be filed for the first time in an appellate court, it must be presented in a formal pleading and not by brief alone. The peremptory exception of prescription, regardless of any probable merit, cannot be injected as an issue in the case by brief or oral argument. La.C.C.P. articles 927 and 2163; State, Through Dept. of Highways v. Champagne, 371 So.2d 626 (La.App. 1st Cir.1979); Motor Machine and Supply Co. v. Delilah Towing Co., Inc., 321 So.2d 896 (La.App. 1st Cir.1975), writ refused 325 So.2d 279 (La.1976). Secondly, defendant’s argument on the prescription question is moot because the record indicates that the trial judge found plaintiff had fully recovered from the February, 1980, accident and that the cause of plaintiff’s present problems result from the October, 1980, accident exclusively. Thus, the judgment would still stand even if we held that the allegation of prescription was meritorious. In any case, the question of prescription is not before the court and defendant’s specification of error based thereon is rejected.

In plaintiff’s original answer to defendant’s appeal he asks this court to reverse the trial court’s refusal to award plaintiff penalties and attorney’s fees as permitted by La.R.S. 23:1201.2. In order to recover these particular items of damage, the plaintiff must prove by a preponderance of the evidence that the employer’s decision to discontinue worker’s compensation payments was unreasonable and arbitrary. Also, in order to reverse the trial judge’s determination on this issue, we must find that the court committed manifest error and abused the much discretion afforded him. Arceneaux, 365 So.2d at 1333. Furthermore, it is important to note that La.R.S. 23:1201.2 is penal in nature, and as such, Louisiana courts have repeatedly held that it must be strictly construed and that the employer cannot be penalized for taking close factual questions to court for resolution and for relying on valid defenses. Dupont v. Ebasco Services, Inc., 411 So.2d 605 (La.App. 4th Cir.1982). At trial, the claims adjuster for the defendant testified that benefits were stopped in January of 1981 because of the medical report of Dr. Maki, plaintiff’s treating physician for the second injury. In Dr. Maki’s deposition he stated that when Es-chete came to see him on January 9, 1981, plaintiff was not complaining, that he was much improved, and that he had a normal examination. When asked by defense counsel whether he released plaintiff for work at that time, Dr. Maki replied in the affirmative. Defendant’s adjuster also testified that compensation was not resumed at a later date based, in part, upon the medical report of Dr. Levy, a neurosurgeon in New Orleans. This report, dated March 14, 1982, states clearly, “From the neurological standpoint, I see no reason why this man could not return to his usual and customary occupation at this time.” It is significant to note that Dr. Levy was aware that plaintiff’s usual and customary occupation required the loading and unloading of a soft-drink truck. Finally, as evidence of the defendant’s good faith and reasonable behavior in dealing with Eschete, the court recalls the comments of the trial'' judge when rendering his decision from the bench. As noted above, the judge states, “In fact this is a classic case where you might have three or four doctors saying one thing and two or three doctors saying something else.” Thus, we think there existed close factual questions in this case and that the defendant had the benefit of valid reasons to stop plaintiff’s benefits. Accordingly, it is our opinion that the trial judge did not abuse his discretion in refusing to award penalties and attorney’s fees to plaintiff. See Henson v. Handee Corporation, 421 So.2d 1134 (La.App. 2d Cir.1982).

For the reasons assigned above, the trial court’s decision will be modified and amended to award plaintiff total and permanent disability benefits, in all other respects the opinion will be affirmed. Defendant is to pay all costs.

AMENDED AND AFFIRMED.


text:
    John Winston RILEY v. Thomas PENNIX.
    No. 83-CA-0111.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Allen A. Parr, New Orleans, for plaintiff.
    William J. Knight, Franklinton, for defendant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

Defendant suspensively appeals a judgment finding him in contempt for wilful noncompliance with a previously rendered consent judgment, ordering him arrested and imprisoned until such time as he complies with the judgment, and assessing him costs and attorney fees. We reverse.

The contempt proceeding arose out of plaintiffs suit for dissolution of a partnership agreement allegedly breached by defendant’s misappropriation of certain partnership assets and funds.

On June 25, 1982, the parties, through counsel, entered into a consent judgment dissolving the partnership. The judgment awarded plaintiff $1,382.82 as equity for his partnership interest, and granted defendant the exclusive right to continue the business under the partnership’s former trade name. An additional condition of the judgment, among others, was for defendant to relieve plaintiff of any further liability on a $10,000.00 loan to the partnership by novating the promissory note held by the lender, First State Bank and Trust Company, within ten days of the signing of the judgment. The judgment was signed on July 22, 1982.

Defendant had not novated the note by the tenth day, August 1, 1982. On August 13, plaintiff filed a rule to show cause why defendant should not be held in contempt for wilfully failing to comply with the terms of the consent judgment. The sheriff for Washington Parish served a copy of the rule on defendant’s attorney on August 19, 19’82, but was unable to locate the defendant for service. The sheriff’s return dated September 7, 1982, indicates that the defendant’s house was vacant. The hearing on the rule, originally scheduled for September 17, 1982, was reset for October 29, 1982.

Neither party personally appeared at the hearing. Plaintiff’s counsel motioned for the issuance of an arrest warrant to bring defendant before the court to explain his failure to novate the loan, and alternatively, for a finding of contempt. When questioned by the court why defendant had failed to novate the loan, defendant’s counsel explained that defendant had complied with all terms of the judgment except the novation. He further explained that he had been unable to locate the defendant since he was served with the rule on August 19. He had contacted several of defendant’s relatives, including his grandfather-in-law and brother-in-law, and sent several letters, since returned, to defendant’s address in Washington Parish in a fruitless attempt to find him. Defendant’s counsel was still unaware at the hearing of defendant’s whereabouts, although he stated that he had received on the previous afternoon a possible address for defendant in Gretna, Louisiana.

The trial court found defendant in contempt of court and ordered him arrested and remanded to the custody of the Washington Parish sheriff to remain there until such time as he complied with the judgment. The court additionally assessed defendant with costs of the proceeding and attorney fees. From this finding of contempt, defendant appeals.

The principal issue on appeal is whether plaintiff-in-rule proved that defendant’s disobedience of, or failure to comply with, the consent judgment was wilful.

According to article 227 of the Louisiana Code of Civil Procedure, a person may be found guilty of contempt only for misconduct defined as such or made punishable as such expressly by law. Although article 226 empowers the court generally to punish by imprisonment contempts of court consisting of omissions to perform acts yet within the power of the offender to perform, article 227, consistent with Article V, section 2 of the Louisiana Constitution, limits the punishments a court may impose for findings of contempt to those penalty provisions contained in LSA-R.S. 13:4611.

Wilful disobedience of a lawful judgment is one of the enumerated acts in article 224 constituting constructive eon-tempt, one of two kinds of contempt specifically defined in our Code of Civil Procedure. LSA-C.C.P. art. 224(2). Such disobedience is expressly punishable under subsection 3 of LSA-R.S. 13:4611(A). See Wall v. Wall, 230 So.2d 420, 424 (La.App. 1st Cir.1969). However, the plaintiff has the burden of proving wilful disobedience. Failing such proof, the court is without power to punish for constructive contempt. Nelson v. Nelson, 421 So.2d 366, 368 (La.App. 1st Cir.1982).

We have defined wilful disobedience as “an act or failure to act that is done intentionally, knowingly and purposely, without justifiable excuse.” Nelson, 421 So.2d at 368. At the hearing, plaintiff formally introduced neither testimonial nor documentary evidence tending to prove the alleged fact of defendant’s wilful disobedience. Plaintiff cannot rely on the colloquy between defendant’s counsel and the court as proof of defendant’s intent, knowledge or purpose since it is not technically evidence. In any event, defendant’s unexplained absence does not “prove” anything except his unexplained absence. The finding of wilful disobedience on the basis of a total absence of proof is clearly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); cf. Reid v. Allstate Insurance Co., 407 So.2d 34 (La.App. 3rd Cir.1981).

The object and purpose of contempt proceedings is to vindicate the authority and dignity of the court. It is not designed for the benefit of the litigants, even though the infliction of punishment for contempt may inure to the benefit of the mover in the contempt rule.

Although defendant’s failure to no-vate the loan tended to frustrate the plaintiff, we do not think that his actions or omissions impaired the dignity and authority of the court, especially when he fulfilled all other terms in the judgment. See Nelson, 421 So.2d 366.

Since we find no showing of wilful behavior to disobey the lawful judgment or order of the court, we reverse the trial court and set aside the contempt finding and the award of attorney fees. All costs of these proceedings are assessed against the appellee.

REVERSED.

      . LSA-Const. Art. V, sec. 2, provides in pertinent part: "The power to punish for contempt of court shall be limited by law.” See generally the Official Revision Comments under LSA-C. C.P. art. 227.

      . LSA-R.S. 13:4611(A) provides in pertinent part:
      (A) The supreme court, the courts of appeal, the district courts, family courts and city courts may punish a person adjudged guilty of contempt of court therein, as follows: ******
      (3) For a deliberate refusal to perform an act which is yet within the power of the offender to perform, by imprisonment until he performs the act ....

      .In Realty Mart, Inc. v. Louisiana Bd. of Tax Appeals, 336 So.2d 52, 54 (La.App. 1st Cir.1976), we defined "evidence" as "testimony and matter which has actually been presented at trial.” In Realty, we held that propounded written interrogatories to the plaintiff do not become evidence until introduced as such at trial on the matter.