text:
    Verna COOPER v. AMI, INC. and Ranger Insurance Company.
    No. 83 CA 0876.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Rehearing Denied Aug. 24, 1984.
    Writ Denied Nov. 9, 1984.

      Thomas B. Waterman, Ponchatoula, for plaintiff-appellee, Verna Cooper. .
    Alton B. Lewis, Jr. of Pittman, Matheny, Lewis & Moody, Hammond, for defendants-appellants AMI, Inc. and Ranger Ins. Co.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

In this worker’s compensation ease, defendants appealed a judgment awarding plaintiff unpaid medical expenses and an increase in compensation benefits, plus penalties and attorney’s fees. Plaintiff answered, requesting an increase in the amount of attorney’s fees.

The issues are: (1) whether plaintiff’s injury was causally related to an accident arising out of her employment; (2) whether surgery performed to treat the injury was necessary; (3) whether defendants were arbitrary and capricious in refusing to pay the surgical expenses; (4) whether the amount of compensation benefits paid by defendants was incorrect; (5) whether admitting testimony on that issue was an improper expansion of the pleadings; (6) whether penalties were properly assessed against defendants for having paid the incorrect amount; (7) whether certain documentary evidence was improperly entered into the record; and (8) whether $3,500.00 in attorney’s fees is excessive.

We amend and affirm.

There is no dispute that plaintiff suffered back injury during the course of her employment as a nurses’ aide, which was diagnosed as acute lumbosacral strain. Dr. Ferachi, her initial treating physician, also diagnosed degenerative disc disease, revealed by x-rays showing a narrowing of the L5-S1 disc space. Plaintiff complained of low back pain but a straight leg raising test was negative and neurological examination was normal. When plaintiff continued to complain of pain, Dr. Ferachi, an orthopedist, sent her to a neurologist for an electromyelogram (EMG) and nerve conduction study. Both were negative and Ferachi eventually released her from treatment, six weeks after her injury.

About six weeks later plaintiff was examined by Dr. Llewellyn, a neurosurgeon, who observed muscle spasm, restricted range of motion in the lower back, weakness in the right leg and a positive leg raising test for both legs. Plaintiff complained of pain radiating from her lower back into her legs. On the basis of her history and complaints and his own observations, Dr. Llewellyn believed plaintiff had suffered a ruptured disc which might require surgery. However, to confirm his diagnosis, he scheduled her for hospitalization and testing.

Prior to the testing, defendants sent plaintiff to another neurosurgeon, Dr. Clifford. After conducting a physical examination, Dr. Clifford concluded that plaintiff’s symptoms were hysterical in nature. He believed that neither degenerative disc disease nor a ruptured disc would have resulted in plaintiff’s symptoms and reactions.

When plaintiff subsequently entered the hospital for testing, an EMG, x-rays, CAT scan and nerve conduction study were performed. Only the CAT scan was positive. According to the radiologist who interpreted it, the CAT scan revealed bulging disc material at the L5-S1 site which directly impinged upon the dural sac which encompasses the nerve roots. He testified that in his opinion, the disc material was compromising the nerve roots themselves. Dr. Llewellyn agreed and scheduled plaintiff for surgery. At this time, plaintiff was also diagnosed as a diabetic.

Prior to the surgery, defendants sent plaintiff to yet another neurosurgeon, Dr. Levy, who examined her and took x-rays. He found the x-rays to be “virtually normal” and did not believe plaintiff’s displayed symptoms were indicative of a ruptured disc. He recommended against surgery and suggested that a myelogram be performed to confirm the CAT scan results.

However, Dr. Llewellyn operated as scheduled, at which time he discovered and removed an irreparably torn portion of the L5-S1 disc, which he testified was positioned to compress the fifth lumbar nerve root. Plaintiff thereafter experienced general relief from her complaints, but at time of trial was still undergoing rehabilitative therapy. Defendants refused to pay the expenses of the surgery.

Defendants contend that plaintiff failed to carry her burden of showing that the ruptured disc was causally related to her on-the-job injury. They do not seriously contest the fact that she suffered a lumbo-sacral strain by lifting a patient in the course of her employment. However, they argue that plaintiff had recovered from that “mild” strain by the time Ferachi released her and that the subsequent manifestation of new symptoms could only mean that she suffered another, unrevealed, trauma to her back after her release. Defendants attack her credibility and rely upon the opinions of their medical experts that plaintiffs ruptured disc was not caused by the reported injury.

The plaintiff-employee in a workmen’s compensation case bears the burden of establishing the causal connection between the disability and the employment accident by a reasonable preponderance of the evidence. Prim v. City of Shreveport, 297 So.2d 421 (La.1974). Furthermore, medical testimony must be weighed in the light of other credible evidence of a nonmedical character, such as a sequence of symptoms or events, in order to determine probability judicially. Schouest v. J. Ray McDermott & Co., 411 So.2d 1042 (La.1982).

Our perusal of the record does not convince us that the trial court was clearly wrong in concluding that plaintiff’s ruptured disc was caused by her on-the-job injury.

Defendants next contend that the trial court erred in concluding that the surgery was necessary. LSA-R.S. 23:1203(A). They base their argument upon the alleged inconsistency of plaintiff’s symptoms, as manifested to the various physicians who examined her; the negative results of the EMG exams and nerve conduction studies; the alleged insufficiency of the CAT scan as a diagnostic device; and the relief of symptoms arguably unrelated to the surgery.

Dr. Llewellyn found that the CAT scan showed impingement upon the nerve-containing dural sac at the L5-S1 disc space by a ruptured or torn disc. He testified that a diabetic will likely experience greater discomfort from nerve compression than those without the disease. He believed that a myelogram was superfluous when a CAT scan was positive (an opinion shared by the consulting radiologist, Dr. Fortenberry); further, he testified that the risks involved in a myelogram are greater for a diabetic. Despite the negative results of the EMG exams and the nerve conduction studies, he believed that plaintiffs clinical symptoms, interpreted in conjunction with the CAT scan results, required surgery. He did in fact discover an irreparably torn portion of the L5-S1 disc and excised it. He testified that a torn disc, as opposed to a ruptured disc, will not respond to conservative treatment but instead requires surgery. The operation provided plaintiff with immediate relief from most complaints, including the low back pain.

There was a clear difference of opinion among equally qualified physicians; however, we do not feel the trial court was manifestly wrong in relying upon Dr. Llewellyn’s testimony in making the determination that the surgery was necessary.

Defendants claim that the trial court erred in assessing penalties and attorney’s fees for their refusal to pay the costs of plaintiff’s surgery. They argue that: (1) they were not arbitrary and capricious and did not act without probable cause in relying upon the recommendations, by the several physicians who examined plaintiff, against immediate surgery, and (2) plaintiff failed to submit evidence of a written demand for payment, a statutory prerequisite to an award of penalties and attorney’s fees under LSA-R.S. 23:1201.2.

The applicable statute in this instance is R.S. 22:658, not R.S. 23:1201.2. The statute is penal in nature and thus must be strictly construed. Patin v. Continental Cas. Co., 424 So.2d 1161 (La.App. 1st Cir.1982), writ denied 429 So.2d 145 (La.1983). An insurer should not be penalized for taking close factual questions to the courts for decision and relying upon a valid defense. Patin, supra; Williams v. Cinclare Central Factory, 422 So.2d 1226 (La.App. 1st Cir.1983), writ denied 426 So.2d 179 (La.1983).

We believe that the defendants were justified in relying upon the opinions of four physicians that surgery was not indicated. Although the trial court ultimately decided the close factual issue of the necessity of surgery against the defendants, their refusal to pay was grounded on a bona fide dispute between qualified physicians, which is a valid defense in this instance. We find that the trial court committed manifest error in finding defendants’ conduct arbitrary and capricious and awarding penalties and attorney’s fees.

Defendants contend that the trial court erred in admitting, over their objection, certain testimony tending to prove that plaintiff had not been receiving the correct amount of weekly compensation, on the grounds that such testimony expanded the scope of the pleadings. Timely objection, coupled with the failure to move for an amendment of the pleadings, is fatal to an issue not raised by the pleadings. Gar Real Estate and Ins. Agency v. Mitchell, 380 So.2d 108 (La.App. 1st Cir.1979). Plaintiff did not move for amendment of the pleadings.

Whether evidence is within the general issues raised by the pleadings is usually a matter left to the discretion of the trial court. Huhn v. Marshall Exploration, Inc., 337 So.2d 561 (La.App. 2d Cir.1976), writ denied 339 So.2d 854 (La. 1976). Although plaintiff made no specific allegation that the amount of benefits being paid was incorrect, she did allege that she had been receiving the sum of $84.50 per week, and then prayed for the court to award her the sum of $91.90 per week in benefits. Defendants were provided with sufficient notice that plaintiff intended to raise the issue at trial. We find no abuse of discretion in the trial court’s admission of the testimony.

Defendants contend the trial court erred in admitting two documents identified by plaintiff as check stubs received from her employer, purportedly showing payment of wages for the three weeks immediately prior to her injury. Defendants objected on the grounds that there was nothing in the documents to identify their preparer or their relation to any of the parties. Trial court overruled the objection after plaintiff identified the social security number printed on the check stubs as her own. On appeal in brief, defendants argue only that the documents are inadmissible on the grounds of hearsay.

The specific grounds for objection to admission of evidence must be made at the time the court makes its ruling thereon. LSA-C.C.P. art. 1635; Laumann v. Sears, Roebuck & Co., 391 So.2d 954 (La.App. 4th Cir.1980). Different grounds for objection cannot be asserted on appeal. Also, assignments of error neither argued nor briefed are deemed abandoned on appeal. State v. Wright, 445 So.2d 1198 (La. 1984); Baier v. Woman’s Hospital Foundation, 340 So.2d 360 (La.App. 1st Cir. 1976), writ denied 342 So.2d 224 (La.1977). This assignment of error thus has no merit.

Defendants urge as error the trial court’s ruling that plaintiff was entitled to additional compensation benefits in the amount of $16.69 per week, on the grounds that the ruling is unsupported by the evidence.

It appears that the trial court determined plaintiff’s average weekly wage in accordance with the provisions of LSA-R.S. 23:1021(7). Apparently, the trial judge determined an average of the actual hours worked by plaintiff in the four weeks preceding her injury by accepting her testimony that she worked forty, forty, forty-eight and forty-eight hours in the last four weeks she worked. We cannot say that the trial court committed manifest error in accepting the testimony of the plaintiff against that of the defendants on this issue, and arriving at the sum that he did.

Defendants next urge as error the trial judge’s determination that they were arbitrary and capricious in failing to pay the correct amount of compensation and his consequent award of penalties and attorney’s fees. Whether an insurer’s conduct justifies an award of penalties and attorney’s fees is a factual question on which we will not disturb the trial court’s finding absent manifest error. Henson v. Handee Corp., 421 So.2d 1134 (La.App. 2d Cir. 1982).

Defendants determined plaintiff’s weekly benefits based upon a thirty-seven and one-half hour work week. However, at the time in question, the law provided that an employee’s weekly wage must, at a minimum, be calculated upon a forty hour work week. LSA-R.S. 23:1021(7)(a). The fact that plaintiff was earning $3.45 per hour was not disputed. Under these circumstances, the insurer was arbitrary and capricious in failing to pay plaintiff at least two-thirds of $138.00 per week, or $92.00.

Additionally, the claims adjuster received a letter from plaintiffs attorney November 4, 1981, informing him that the amount being paid was incorrect. Still, defendants failed to raise compensation payments even to the legal minimum. We do not find any manifest error.

Finally, defendants contend that the $3,500.00 awarded in attorney’s fees is excessive. The award of attorney's fees under R.S. 22:658 is in the form of a penalty and the amount need not be proved. Fontenot v. Town of Kinder, 377 So.2d 554 (La.App. 3rd Cir.1979), writs denied, 379 So.2d 1102 (La.1979). However, the award of a reasonable fee is within the broad discretion of the trier of fact. Orgeron v. Tri-State Road Boring, Inc., 434 So.2d 65 (La.1983). We do not find abuse of discretion in this award but we decline to' award additional attorney’s fees for services rendered on appeal.

For the foregoing reasons, the judgment of the trial court is amended to delete the award of 12% penalties on the amount of past due medical expenses, and as amended, affirmed. Costs of this appeal are to be borne equally by plaintiff and defendants.

AMENDED AND AFFIRMED.

      . In pertinent part, LSA-R.S. 23:1203(A) provides:
      “In every case coming under this Chapter, the employer shall furnish all necessary medical, surgical, and hospital services, ..."

      . Plaintiff complained prior to surgery of pain in both arms. Dr. Levy testified that this complaint could not be related to a bulging disc at the L5-S1 level. Plaintiff stated that this pain was relieved by the surgery. Dr. Llewellyn attributed this pain to muscle or ligament'sprain in the neck and indicated that such complaints are not uncommon in diabetics such as plaintiff.

      . LSA-R.S. 22:658 provides, in pertinent part:
      "All insurers issuing any type of contract ... shall pay the amount of any claim due any insured including any employee under Chapter 10 of Title 23 of the Revised Statutes of 1950 within sixty days after receipt of satisfactory proofs of loss from the insured, employee or any party in interest. Failure to make such payment within sixty days after receipt of such proofs and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss, payable to the insured, or to any of said employees, together with all reasonable attorney’s fees for the prosecution and collection of such loss,

      At the time in question, LSA-R.S. 23:1201.2 applied only to employers not covered by insurance. Such was not the case here.

      . Since we rule favorably for the defendants on this issue, we need not address their contention of insufficient demand.

      . At the time in question, LSA-R.S. 23:1021(7), in pertinent part, provided:
      "The average weekly wage (of the injured employee) shall be determined as follows: (a) If the employee is paid on an hourly basis, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the injury or forty hours, whichever is greater; ...”


source: Caselaw Access Project

author: CARTER, Judge.

license: Public Domain

text:
    JACK A. PARKER & ASSOCIATES, INC. v. STATE of Louisiana, Through the DEPARTMENT OF CIVIL SERVICE, et al.
    No. 83 CA 0877.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Rehearing Denied Aug. 24, 1984.
    Writ Denied Nov. 9, 1984.

      Phillip Canova, Plaquemine, for plaintiff-appellant Jack A. Parker & Associates, Inc.
    Tommy D. Teague, Baton Rouge, for defendant-appellee Board of Trustees of the State Employees Group Benefits Program.
    Robert R. Boland, Jr, Baton Rouge, for defendant-appellee State of La., Through the Dept, of Civil Service.
    Thomas A. Warner, III, Baton Rouge, for defendant-appellee Div. of Administration.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge.

This is a suit for breach of contract filed by Jaqk A. Parker & Associates (Parker) against the State of Louisiana, through the Department of Civil Service; State of Louisiana, through the Division of Administration; and the Board of Trustees of the State Employees Group Benefit Program, within the Department of Treasury, State of Louisiana.

The Division of Administration entered into a joint contract with Parker and Werntz & Associates, Inc. to provide professional, actuarial, and technical services required to organize and maintain the state group insurance program for the sum of $407.496.00, payable in twelve (12) monthly payments of $18,948.00 to Werntz & Associates, Inc..and $15,010.00 to Parker. The contract further provided that reimbursable expenses shall not exceed $36,464.00. The contract was for an initial one-year period from December 1, 1978, to November 30, 1979, with an automatic extension for subsequent equal periods unless prior notice was given.

Sometime after the effective date of the contract, the Director of Civil Service requested that the Division of Administration provide him with copies of contracts for professional services entered into by the Division of Administration, maintaining that Civil Service Rules required approval of such contracts for professional services. The Division of Administration, however, refused to submit the requested contracts to the Civil Service, claiming that the Division of Administration was not subject to the Civil Service Rules.

On June 19, 1979, the Louisiana Civil Service Commission issued a stop pay order mandating that neither the Governor, nor the Treasurer, nor any other person within the state government issue any payments on approximately thirty-eight (38) contracts which the Commission had under consideration. One such contract was the joint contract between the Division of Administration and Parker and Werntz & Associates, Inc. The reason given for issuing the stop pay order -was that the contracts for professional services had not been approved by the Director of Civil Service.

By letter dated July 11, 1979, the Commissioner of the Division of Administration requested approval by the Civil Service Commission of several of the questioned contracts, including the contract with Parker and Werntz & Associates, Inc. However, the Director of Civil Service declined to approve the contract on the basis that the contract did not meet the established criteria for a contract for personal services to be performed by persons outside the classified service.

The Division of Administration later submitted to the Civil Service Commission a new contract between itself and Werntz & Associates, Inc. to provide the same basic service as the previous joint contract for $243,288.00, which was approved by the Commission.

Parker received payment under the original contract from December, 1978, through May, 1979. However, as a result of the June stop pay order, payment was discontinued. Plaintiff subsequently filed this suit for monies due under the contract and for damages to its business reputation.

The trial court found that the Civil Service Commission had the authority under the Louisiana State Constitution to adopt rules affecting persons possessing contracts for personal services with the State of Louisiana, which rules have the force and effect of law. The trial court also held that absent approval of the Parker-Werntz contract by the Civil Service Commission as required by Civil Service Rules 3.1(o) and 4.1(e), the contract was null and unenforceable. The trial court accordingly rendered judgment in favor of defendants and dismissed plaintiff’s action. From this judgment, plaintiff appeals.

The following issues are presented:

(1) Does the Louisiana Constitution of 1974 grant the Civil Service Commission the authority to make rules regulating classified service?
(2) Do Civil Service Rules 3.1(o) and 4.1(e) exceed that constitutional grant of authority?
(3) Absent of approval of a contract for professional services by the Civil Service Commission, is the contract valid?
(4) Was the action of the Civil Service Commission in declining to approve the Parker contract arbitrary and capricious?

ASSIGNMENTS OF ERROR NOS. 1 & 2

Article 10, Section 10(A)(1) of the Louisiana Constitution of 1974 provides that:

“Each commission is vested with broad and general rule-making and subpoena powers for the administration and regulation of the classified service....

This provision gives the Civil Service Commission rule making authority to fulfill its duties. This authority was broadened from the “authority and power” granted to such commissions under Article 14, Section 15(1) of the Louisiana Constitution of 1921.

Appellant contends that without classification as a member of Civil Service or status as a classified employee, the rules enacted pursuant to Article 10, section 10(A)(1) of the Louisiana Constitution of 1974 can have no application to prospective public service contractors.

The primary rule at issue in the case sub judice is Civil Service Rules 3.1(o) which provides that the director of Civil Service shall:

“Review and approve or disapprove, in advance of their effective dates, contracts for personal services between the State, or any instrumentality thereof, and any person in order to insure that such agreements do not provide for the performance of such services for the State of Louisiana which could and should be performed by classified employees.”

The rules of the Commission have the force and effect of law. La. Const. 1974, Article 10, Section 10(A)(4); Mayeaux v. Dept, of State Civil Service, 421 So.2d 948 (La.App. 1st Cir.1982); Pelletier v. Executive Department, Division of State Buildings and Grounds, 331 So.2d 72 (La. App. 1st Cir.1976). Thus, so long as the Commission’s rules are reasonable and not violative of basic constitutional rights, they must be recognized and given effect by the courts. Heinberg v. Department of Employment Security, 256 So.2d 747 (La.App. 1st Cir.1971), writ refused, 260 La. 1135, 258, So.2d 381 (1972).

In Bazley v. Tortorich, 397 So.2d 475 (La.1981) the Louisiana Supreme Court recognized a list of rights which have been found to be fundamental. This listing includes freedom of expression and association, right to vote and participate in the electoral process, right to interstate travel, right to fairness in the criminal process, and right to fairness in procedures concerning governmental deprivations of life, liberty and property. Although this list is not exhaustive or exclusive, the right Parker seeks to exercise, viz. the right to contract, is not within these fundamental categories.

The question then becomes whether or not the rule enacted is reasonable.

The purpose of the Civil Service is “to secure adequate protection to public career employees from political discrimination,” State v. Department of City Civil Service, 215 La. 1007, 42 So.2d 65 (La.1949); “to guarantee the independent security and welfare of public service,” State v. Heard, 228 La. 1078, 84 So.2d 827 (La.1955); and “to secure governmental employees in their positions free from discrimination of political, religious or other nature,” Perkins v. Director of Personnel, 220 So.2d 253 (La. App. 1st Cir.1969).

Review of contracts entered into by the state and independent contractors rationally fulfilled the purposes and objectives behind the existence of Civil Service. Although classified employees cannot be terminated, suspended or demoted without strict adherence to the provisions of Chapters 11 and 12 of the Civil Service Rules, only Rule 3.1(o) prevents the Division of Administration or any other authorized state agency from contracting away, through public service contracts, work that can and should be performed by classified employees. Without Rule 3.1(o), governmental agencies could in time grant public service contracts for all work currently performed by classified employees and in effect abolish the classified service. The effect upon the bona fide classified employees within the state service because of a public service contract’s contractural relationship with the state government could be disastrous. For example, in 1974 there were approximately 56,000 state classified employees and today there are approximately 68,000 employees, the difference constituting approximately 18% of today’s total. If those 12,000 employees, plus employees hired as a result of resignations, terminations, and retirement had been hired under public service contracts, there would be a significant percentage of governmental employees entrusted with a very great deal of power and responsibility over the public health and welfare, and the enforcement of the State’s laws, regulations, and rules would be the subject to the whims of the State official with whom they contracted.

Not only does the State Civil Service Commission have full authority to adopt the subject rule pursuant to Article 10, Section 10(A), but it is mandated in the proper administration and regulation of the classified service to adopt and implement such rules. To require that those proposed contracts be monitored and approved by the director of Civil Service is an appropriate discharge of the Commission’s responsibility under Article 10, Section 10(A) of the Louisiana Constitution of 1974 and Civil Service Rule 3.1(o) adopted pursuant thereto.

In the exercise of the Commission’s “broad and general rule making the subpoena powers for the administration and regulation of the classified service,” the Commission has sought to protect public employment from such detrimental factors. To this end the State Civil Service Commission has required that proposed contracts be reviewed by its Director. Therefore, clearly the Louisiana Constitution of 1974 does grant the Civil Service Commission authority to make rules regulating classified service, and Civil Service Rule 3.1(o) does not exceed the constitutional grant of authority.

ASSIGNMENT OF ERROR NO. 3

The issue presented in this assignment is whether, absent approval of the Parker-Werntz contract by the Director of the Civil Service Commission in accordance with Rule 3.1(o), a valid and binding contract exists.

In Sanders v. Dept. of Health & Human Resources, 388 So.2d 768 (La.1980), the Supreme Court held that:

“Civil service rules have the effect of law, La. Const, art. 10, § 10(A)(4), and are construed according to the rules of interpretation relative to legislation in general. Statutes may be classified generally as either mandatory or directory. If mandatory, they prescribe, in addition to requiring the doing of the thing specified, the result that will follow if they are not done, whereas, if directory, their terms are limited to what is required to be done. Generally, statutory provisions that do not relate to the essence of the thing to be done, and as to which compliance is a matter of convenience rather than substance, are directory, while provisions which relate to the essence of the thing to be done, that is, matters of substance, are mandatory. Black’s Law Dictionary 414 (5th ed.1979).”

If the requirement is so essential to the statutory plan that the legislative intent would be frustrated by non-compliance, then it is mandatory. United States v. St. Regis Paper Company, 355 F.2d 688 (2nd Cir.1966). A significant consideration in determining whether a statutory requirement should be given mandatory or directory effect is a comparison of the results to which each such construction would lead. Holbrook v. United States, 284 F.2d 747 (9.th Cir.1960).

The purpose of the Civil Service Rules was succinctly set forth by the Supreme Court in Sanders v. Dept. of Health & Human Resources, supra as follows:

“The provisions of the state constitution involving the Civil Service, La. Const, art. 10, §. 1, et seq., and the rules of the Commission are designed to secure adequate protection to public career employees from political discrimination. They embrace the merit system, and their intent is to preclude favoritism. The purpose of the civil service rules is to guarantee the security and welfare of public service. Louisiana Civil Service League v. Forbes, 258 La. 390, 246 So.2d 800 (La.1971).”

Although Rule 3.1(o) does not prescribe the result that will follow from non-compliance, Rule 2.9(k) empowers the Commission to do the following:

“To issue orders withholding compensation from any person who, after investigation by public hearing, has been found by the Commission to be employed or paid by the State contrary to the provisions of the Constitution or the Rules adopted thereunder. Such orders may be directed to the officer having the authority to approve the payroll or assign the paycheck for such employee; and the officer to whom it is directed and any other person to whom such order is directed shall make no payment of compensation or authorize the making of any such payment to such person until authorized by the Commission upon penalty of personal liability for the sum so paid contrary to the order of the Commission and such other penalties as are otherwise provided by the Constitution and/or the Rules.”

Additionally, La. Const, art. 10, § 10(A)(4) provides that “each commission may impose penalties for violation of its rules by demotion in or suspension or discharge from position, with attendant loss of pay.”

We find that failure to comply with Rule 3.1(o) defeats the purpose of the civil service laws. The requirement that the Director approve or disapprove public service contracts before their effective date is essential for the protection of classified employees. If approval of such contracts between the state and proposed independent contractors was not required, state officials could easily circumvent the reasons for establishing the Civil Service Commission by granting public service contracts would have a detrimental effect on career public employees and the State of Louisiana.

Accordingly, under the law contracts for personal services between the State of Louisiana and any person must be reviewed and approved by the Director of the Civil Service Commission in advance of the proposed effective date of the contract.

In the case sub judice, the Parker-Werntz contract was not approved prior to the effective date of the contract. In fact, the Parker-Werntz contract was expressly disapproved by the director some seven months after the contract’s proposed effective date.

The State of Louisiana is entitled to have the contract declared void. Individuals cannot by their conventions derogate from the force of laws made for the preservation of public order and good morals. LSA-C.C. art. 11. The laws regulating the granting of public service contracts were made “to insure that such agreements do not provide for performance of such services which could and should be performed” by public employees and thus were made for the preservation of public order. Whatever is done in contravention of a prohibitory law is void. LSA-C.C. art 12. See West Baton Rouge Parish Sch. Bd. v. T.R. Ray, 367 So.2d 332 (La.1979); Corbello v. Jefferson Davis Parish Police Jury, 262 So.2d 151 (La.App. 3rd Cir.1972); Jary v. Emmet, 234 So.2d 530 (La.App. 3rd Cir.1970) writ refused 256 La. 374, 236 So.2d 502 (La.1970); Marquette v. Housing Authority of Opelousas, 137 So.2d 374 (La.App. 3rd Cir.1962).

Therefore, the Parker-Werntz contract is invalid and unenforcible for failure to comply with the law, viz. Rule 3.1(o) of the Rules of the Civil Service Commission.

ASSIGNMENT OF ERROR NO. 4

Appellant contends that the Civil Service Commission acted arbitrarily and capriciously in refusing to approve the Parker-Werntz contract. Appellant points out that shortly after the Director of the Civil Service Commission refused to approve the Parker-Werntz contract, an identical contract, was executed with Werntz which excluded Parker as a co-contractor, and this contract was approved by the Civil Service Commission.

Each contract on its face has similar if not identical language with regard to the responsibilities of the respective co-contractors. However, upon examining the services actually performed by the two co-contractors, it appears that the services provided by Werntz pursuant to both contracts were in some instances identical and yet in other instances were quite dissimilar to those provide by Parker. Additionally, Werntz provided many services beyond the services provided by Parker.

Werntz provided the actuarial services and had the computerized equipment required to perform the technical aspects of the contract. He also provided statistical services necessary to determine rates and reserve levels to maintain a fiscally stable insurance plan for state employees, in addition to prividing some service representatives in the Shreveport area.

Parker, on the other hand, provided only service representatives and other clerical services' in the Baton Rouge and New Orleans areas. There was substantial evidence Parker was not even performing the minimal services he was obligated to perform.

Although the action of the Civil Service Commission may appear at first blush to have slighted Parker, a thorough review of the record convinces us that the clerical work actually performed by Parker under the contract could and should have been performed by classified employees, while the technical work provided by Werntz was of a nature which could not be performed by classified employees. Additionally, the evidence demonstrated that subsequent to the stop pay order, classified employees actually performed the service in the Baton Rouge and New Orleans area, which had previously been performed by Parker.

Because of the services actually performed by the co-contractors was of a different nature, we cannot say that the Director of the Civil Service Commission was arbitrary and capricious in refusing to approve the Parker-Werntz contract.

This assignment lacks merit.

For the above reasons, the judgment of the trial court is affirmed. All costs are to be assessed against appellant Parker.

AFFIRMED.

      . The Division of Administration sought a stay of the Civil Service Commission's actions through the First Circuit Court of Appeal. Such request, however, was denied on July 31, 1979 (No. 13,047).


author: LANIER, Judge.

text:
    David Keith BORDELON v. VULCAN MATERIALS COMPANY.
    No. 83 CA 0882.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Rehearing Denied Aug. 24, 1984.

      W. Leonard Werner, Baton Rouge, for plaintiff David K. Bordelon appellant.
    L. Michael Cooper, Baton Rouge, for defendant Vulcan Materials Co. appellee.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

This is a suit by an employee, David Keith Bordelon, against his employer, Vulcan Materials Company (Vulcan), for workmen’s compensation benefits, medical expenses and statutory penalties alleging that the employee sustained a permanent partial loss of the use or function of both eyes in a job related accident. The district court rendered a judgment in favor of the employee for compensation benefits of $44 per week for 100 weeks, less a credit for 32 weeks of scheduled loss of use benefits and 6-⅜ weeks of temporary total benefits previously paid, and all past and future medical expenses resulting from the accident, less a credit of $2,150.84 previously paid. The claim for statutory penalties was dismissed. From this judgment, the employee devolutively appealed.

FACTS

At trial, the parties stipulated to “Established Facts”, the trial judge accepted the stipulations and quoted these facts in his reasons for judgment, and we adopt these facts as our own as follows:

Prior to and on the day of the accident that is the subject of this law suit, David K. Bordelon was employed by Vulcan Materials Company as a control technician at the facility Vulcan operates in Ascension Parish, Louisiana. His duties included, among others, taking readings on valves and gauges on pumps and boilers.
The accident that is the subject of this law suit occurred on December 14, 1979, at the facility of Vulcan Materials Company located in Ascension Parish, Louisiana.
During normal working hours in the course and scope of his employment with Vulcan Materials Company, David Keith Bordelon made a visual inspection of the flame in the interior of a boiler from the inspection port mounted upon the exteri- or of the boiler. In the process of making this inspection, the glass window of the boiler through which David K. Borde-Ion made his inspection exploded in his face.
The accident was reported to Vulcan Materials Company within several minutes after it happened.
As a result of the accident, David K. Bordelon was off work from December 14, 1979, through January 29, 1980; and on January 30, 1980, he resumed his duties as a control technician with Vulcan Materials Company.
At the time of the accident, the average weekly wage paid in all employment subject to the Louisiana Employment Security Law was Two Hundred Twenty-Two and No/100 ($222.00) Dollars. At the time of the accident, the average weekly wage paid by Vulcan Materials Company to David K. Bordelon amounted to Three Hundred Twenty-Three and 40/ioo ($323.40) Dollars.
Vulcan Materials Company paid to David K. Bordelon workmen’s compensation from and including December 15, 1979, through and including January 29, 1980, at the rate of One Hundred Forty-Eight and No/100 ($148.00) Dollars per week. This represents 64Aths weeks of compensation and totals Nine Hundred Seventy-Two and 56/ioo ($972.56) Dollars.
Vulcan Materials Company also paid David K. Bordelon workmen’s Compensation from and including January 9, 1981, through and including August 20, 1981, at the rate of Forty-Four and No/100 ($44.00) Dollars per week. This represents thirty-two (32) weeks of compensation and totals One Thousand Four Hundred Eight and No/100 ($1,408.00) Dollars. These weekly compensation benefits (at the rate of $44.00 per week) were based upon Vulcan’s interpretation of a medical report by Dr. Randal Caffarel addressed to counsel for plaintiff dated December 15,1980, which was forwarded by counsel for plaintiff to Mr. Ron Ewing in Vulcan’s claim office in Birmingham, Alabama. This report of December 15, 1980, was received by Vulcan on January 3, 1981. The check of Vulcan Materials Company for workmen’s compensation for the period January 9, 1981, through January 15, 1981, was mailed in Birmingham, Alabama, the location of the claim office of Vulcan Materials Company, addressed to the attorney of David K. Bordelon, and was received by him on January 17, 1981. Weekly benefits at the rate of $44.00 per week were discontinued on August 20, 1981, based upon Vulcan’s interpretation of the deposition testimony of Dr. Randal Caffarel.
Accordingly, the total amount of workmen’s compensation paid by Vulcan Materials Company to David K. Bordelon is Two Thousand Three Hundred Eighty and 66/ioo ($2,380.56) Dollars.
In addition, the medical paid by Vulcan Materials Company on behalf of David K. Bordelon amounts to Two Thousand One Hundred Fifty and 84/ioo ($2,150.84) Dollars, being all medical expenses submitted thus far.

DISABILITY

The district judge found that “plaintiff herein has sustained the loss of use or function of his eye.” Apparently, the district court found that Bordelon proved that he sustained permanent partial loss of use or function of one of his eyes (although he did not state which eye), thereby entitling him to workmen’s compensation benefits pursuant to La.R.S. 23:1221(4)(i) and (o). Bordelon contends that he sustained permanent partial loss of use or function of both eyes and should be compensated accordingly.

The claimant in a workmen’s compensation proceeding bears the burden of proving the nature and extent of his disability by a preponderance of the evidence. 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. Thornell v. Payne and Keller, Inc., 442 So.2d 536 (La.App. 1st Cir.1983), writ denied, 445 So.2d 1231 (La.1984).

Only two witnesses testified at trial: Bordelon and Dr. Randal Caffarel. The parties also entered a stipulation at trial that if Dr. Carl J. Steffak, engaged in the general practice of medicine, were called to testify he would testify substantially as follows:

1. That on June 28, 1978, at the request of Vulcan Materials Company, he conducted a pre-employment physical examination of David Keith Bordelon, Plaintiff in these proceedings.
4. That at the time of this examination, Mr. Bordelon’s vision was normal and there was no evidence of any disease or injury to Mr. Bordelon’s eyes.
6. That at the time of his examination, Mr. Bordelon did not need eye glasses or other corrective devices for his eyes.

David Bordelon testified that when the accident occurred he was employed by Vulcan as a control technician. His duties were to monitor instruments (pressure gauges, temperature gauges and other like instruments) and take readings in the control room at Vulcan’s plant in Geismar. After the accident, he resumed his duties as a control technician. He remained at this position until 1981 when he became an equipment technician, an outside job involving opening of pumps and valves, starting pumps, taking readings and catching samples. Prior to the accident, Bordelon did not have any difficulties with his eyes and did not need prescription glasses. Since the accident, he has not been able to see as well as he could before the accident and has problems with blurring in both eyes (but mostly in the right eye), floating spots in his right eye and astigmatism. He has difficulty with bright lights because of the damaged pupil in his right eye which sometimes causes headaches and requires him to wear dark glasses. He also has trouble focusing and gets headaches from eye strain during prolonged reading. The only effect on his job performance has been that he has to concentrate more and it takes him a little longer to take his readings from the fine instruments and smaller gauges. However, with his prescription glasses on, he has been able to perform his job duties with only minor discomforts. Vulcan has provided him with a pair of prescription safety glasses for use at work.

Dr. Randal Caffarel, an expert in the field of ophthalmology, treated Bordelon for his accident-related injuries. Dr. Caf-farel initially saw Bordelon at his office on December 14, 1979, but he was taken to a hospital for further examination. Dr. Caf-farel’s examination revealed that Bordelon had sustained multiple minor lacerations about his face and eyes not requiring suturing. He had at least one laceration on each upper eyelid which was sutured; he had damage to the globe of the eyeball of both eyes, including what is called a “hyphema” (blood in the front part of the eye between the iris and cornea); he had a tearing away of the face of the iris from its attachment in the right eye (between the 2 o’clock to 4 o’clock positions); and he had superficial lacerations of the corneas. Bor-delon’s injuries were bandaged, and he was hospitalized until the blood in his eyes dissolved. On December 24, 1979, Bordelon was discharged from the hospital and sent home.

Dr. Caffarel continued treating Bordelon for his injuries. The following are the dates and findings of each visit:

1. December 28, 1979 — right eye causing headaches; findings essentially the same; blood disappeared from inside of eye; eyes still very irritated;
2. January 3, 1980 — examination disclosed a small subcapular cataract (an opacity or spot in the lens of the eye) in the left eye; also, found elevated pressure in the right eye which was secondary to the trauma, such condition called “traumatic glaucoma”; Bordelon placed on glaucoma medications;
3. January 10, 1980 — visual acuity (ability to see) improving to 20/25 in the right eye and 20/20 in the left eye uncorrected; cataract in left eye still present; eyes healing, but still irritated in right eye; medication for pressure level continued;
4. January 25, 1980 — lens changes stable but not progressing; still had traumatic cataract; intraocular pressure in right eye slightly elevated and medication increased; Bordelon told he could return to work;
5. February 7, 1980 — eyes looking much better; intraocular pressure normal; still had inflammatory cells in right eye; vision corrected to 20/20 in each eye;
6. April 21, 1980 — eyes appeared to be quiet; no further inflammatory cells found; intraocular pressure normal in each eye; eyes refracted and farsightedness found in both eyes (not caused by the accident); some hyperopia found in right eye and hyperopic or hyperopian and astigmatism found in left eye; some of the medications for the traumatic glaucoma discontinued;
7. July 18, 1980 — Intraocular pressure normal; eyes refracted and again found hyperopia and also some astigmatism in both eyes; given a prescription for corrective glasses; visual fields (measure of peripheral vision) normal;
8. October 15, 1980 — intraocular pressure normal and all glaucoma medication discontinued; visual acuity uncorrected was 20/20 in right eye and 20/20 minus (did not read all of line on chart correctly) in left eye; no changes made in glasses;
9. May 5, 1981 — no complaints; uneor-rected visual acuity was 20/20 in each eye; intraocular pressure normal; retina normal; everything essentially the same;
10. July 17, 1981 — Bordelon having trouble with balance and his eyes hurt more when outside; uncorrected visual acuity was 20/20 in right eye and 20/20 minus in left eye; corrected visual acuity was 20/20 in each eye; pupil range and motions normal; intraocular pressure normal; eyes dilated, revealing irregular pupil in right eye secondary to the fact that base of iris torn loose; has corneal scar in right eye over where iris once attached; has anterior cataract in left eye which has not changed; has scar in left eye towards center of cornea; glass prescription changed;
11. February 23, 1982 — complaining that eyes hurt and were red; intraocular pressure unchanged; visual acuity was 20/20 in right eye and 20/20 minus in left eye with correction (glasses on); eyes dilated and no change in scars or cataract noted; eyes refracted and glasses changed; given prescription for astigmatism; corrected vision was 20/20 in each eye; and
12. August 10, 1982 — last examination; vision corrected was 20/20; intraocular pressure normal; appearance of eyes same as previous visit.

Dr. Caffarel testified that Bordelon had astigmatism in both eyes and this condition was apparently permanent. This condition was caused by cornea abrasions Bordelon sustained in the accident which healed but left cornea scars. The astigmatism does not decrease Bordelon’s visual acuity, but it has affected his ability to focus and causes blurring of things near and far. For example, the astigmatism blurs small print up close as well as road signs at a distance. The eyes can compensate for a certain amount of astigmatism, but this ability to focus decreases with age. It is possible that Bordelon will have trouble focusing and his vision will become blurred when attempting to maintain focus for a period of time (10-15 minutes). This will occur as the eye muscles tire and lose their ability to compensate for the astigmatism. It is also possible the astigmatism could cause headaches and would cause problems in reading gauges with close lines. The only treatment for astigmatism is corrective lens. Corrective lens were prescribed for Borde-lon’s astigmatism. The lacerations or scarring on the cornea of both eyes also made glare and bright lights much worse for Bordelon. This condition was permanent and could only be treated by wearing dark glasses.

Bordelon also has irododialysis of the right eye. This is an iris which has torn loose from its peripheral attachment. As a result, Bordelon has an irregular shaped pupil in his right eye and has a secondary pupil through which the retina can be seen. This condition is permanent and causes an increased sensitivity to light and could possibly cause squinting in bright lights. The only treatment for this condition is to wear dark glasses.

Bordelon had traumatic glaucoma (elevated pressure) in his right eye which was caused by a decreased drainage of fluid from the eye. This condition was secondary to the trauma Bordelon sustained in the accident. The glaucoma has cleared up, but he has an increased risk of developing glaucoma in the future. Because of this increased possibility of developing glaucoma, Bordelon should be examined every six months for an indefinite period of time, possibly for his entire life.

Finally, Bordelon has a cataract in his left eye. This condition is permanent and probably will remain unchanged. It makes him more susceptible to cataract problems in the future which could require surgery.

Although Bordelon’s astigmatism and cataract conditions are permanent, they have not decreased his visual acuity or ability to see. His visual acuity and visual fields tested within normal limits. His ex-traocular movement (way eye moves in socket) is normal. These three combined tests (visual acuity, visual fields and ex-traocular movement) are used to determine visual impairment and the percentage of impairment of the visual system. Since Bordelon tested normal on all three categories, Dr. Caffarel concluded that, technically, he had no permanent impairment. Dr. Caffarel found that Bordelon had to wear glasses and did not see quite as well without them; that the condition of his eyes was something less than before the accident because of the cornea scarring in both eyes, the torn iris in the right eye and the increased propensity to develop more problems in the future; and that he did have some problems with his job. However, these problems are not considered by an ophthalmologist when arriving at a determination of permanent impairment or loss of use or function of an eye.

Based on a review of the lay and medical testimony as detailed extensively above, we find that Bordelon proved by a preponderance of the evidence that he sustained a permanent loss of use or function of both eyes. Although not measurable by technical medical standards, Bordelon’s conditions (traumatic glaucoma and irodo-dialysis in the right eye, cataract in the left eye and astigmatism in both eyes) have increased his susceptibility, probability and risk of developing additional eye problems in the future. Cf. Deleon v. Home Indemnity Company, 444 So.2d 685 (La.App. 5th Cir.1984). The irododialysis, cataract and astigmatisms are permanent. Further, Bordelon must wear prescription glasses to maintain a focus for an extended period of time and to avoid blurring of vision. The glasses must also have a dark tint to filter out bright lights and sunlight to control his astigmatism in both eyes. An employee’s loss of function is evaluated and compensa-ble based on his natural body’s loss of function, even though man-made artifices may temporarily alleviate the loss of function. Jenkins v. Orleans Parish School Board, 310 So.2d 831 (La.1975). These conditions constitute a permanent partial loss of use or function of both eyes.

To determine an award under the formula provided in La.R.S. 23:1221(4)(o) for loss of use or function, the percentage of loss is utilized. Dr. Caffarel did not assign any percentage of loss of use or function to Bordelon’s eyes because of his inability to measure Bordelon’s conditions within the technical standards normally used for medically determining permanent impairment. The district judge did not assign a percentage in his reasons for judgment. Notwithstanding this lack of evidence, Bordelon’s proof that he has sustained at least some loss of use or function of both eyes, regardless of how small this percentage may be, is sufficient evidence for this court to award the statutory minimum of $44 per week for both eyes.

Since both eyes have been affected permanently, the compensable period of 100 weeks for the permanent partial loss of use or function of one eye must be cumula-ted to reflect the permanent injury to both eyes. La.R.S. 23:1221(4)(i) and (o); Malone & Johnson, Workers’ Compensation Law and Practice § 283 in Louisiana Civil Law Treatise 656 (1980). Therefore, the trial court’s judgment is amended to award Bor-delon $44 per week for 200 weeks (rather than 100 weeks), subject to a credit of $972.56 (total temporary disability benefits of $148 per week for 6/⅛ weeks) and $44 per week for 32 weeks (scheduled loss of use benefits). La.R.S. 23:1223; Arvie v. Oilfield Construction Company, 428 So.2d 1297 (La.App. 3rd Cir.1983).

DISFIGUREMENT

Bordelon contends that the district court erred in failing to award him compensation, pursuant to La.R.S. 23:1221(4)(p), for the serious, permanent disfigurement he sustained about his face and head in the accident. La.R.S. 23:1221(4)(p) was amended by Acts 1983, 1st Ex. Sess., No. 1, § 1. At the time of the accident, this provision read as follows:

in cases not falling within any of the provisions already made, where the employee is seriously permanently disfigured about the face or head, or where the usefulness of a physical function is seriously permanently impaired, the court may allow such compensation as is reasonable and in proportion to the compensation hereinabove specifically provided in the cases of specific disability, not to exceed sixty-six and two-thirds, per centum of wages during one hundred weeks.

This issue was addressed in Jones v. Brown & Root, Inc., 379 So.2d 872, 874 (La.App. 4th Cir.1980), in which the court held:

Where the statute provides a specific schedule of compensation for the loss, or partial loss, of use or function of a member, it shall control and shall prevail over the general savings section of the statute covering those injuries to unlisted members. The partial permanent loss of the use or function of the eye falls within the specific provisions of the statute and as a result the provisions of § 1221(4)(p) are rendered inoperative.

See also LaFleur v. Seaboard Fire and Marine Insurance Co., 296 So.2d 860 (La.App. 3rd Cir.1974), writ refused, 300 So.2d 185 (La.1974). Contra: Curry v. Vanan-twerpen, 278 So.2d 793 (La.App. 3rd Cir. 1973). Appellant’s recovery under La.R.S. 23:1221(4)(i), (o) precludes recovery under La.R.S. 23:1221(4)(p) because La.R.S. 23:1221(4)(p) is only applicable to “eases not falling within any of the provisions already made” in La.R.S. 23:1221.

STATUTORY PENALTIES

The district court denied Bordelon’s claim for statutory penalties with the following language:

The court is of the opinion that defendant’s decision to terminate benefits was based on a reasonable interpretation of the medical evidence available to it at the time termination took place.

Bordelon contends that the district court erred by not finding that Vulcan was arbitrary, capricious, or without probable cause in failing to pay workmen’s compensation benefits for the period of January 30, 1980, to January 8, 1981, and in discontinuing benefit payments on August 20, 1981.

La.R.S. 23:1201.2(A) provides for statutory penalties, in pertinent part, as follows:

Any employer whose liability for claims arising under the provisions of this Chapter is not covered by insurance, shall pay the amount of any claim due under the provisions of this Chapter, within sixty days after receipt of written notice. Failure to make such payment within sixty days after receipt of notice, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the employer to a penalty, in addition to the amount of claim due, of 12% of the total amount of such claim, payable to the claimant, together with all reasonable attorney’s fees for the prosecution and collection of such claim, or in the event a partial payment or tender has been made, 12% of the difference between the amount paid or tendered and the amount found to be due, and all reasonable attorney’s fees for the prosecution and collection of such amount. Any such employer who at any time discontinues payment of claims due and arising under the provisions of this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the penalties set forth above, payable to the claimant, together with all reasonable attorney’s fees for the prosecution and collection of such claims.

Vulcan commenced making workmen’s compensation payments of $148 per week on December 15, 1979 (day after the accident), and discontinued these payments on January 29, 1980, when Bordelon returned to work. Vulcan again resumed payments of $44 per week on January 9, 1981, based on its interpretation of Dr. Caffarel’s medical report (dated December 15, 1980, and received by Vulcan on January 3, 1981) and discontinued making these payments on August 20,1981, based on its interpretation of the deposition of Dr. Caffarel taken on July 30, 1981.

The medical evidence indicates that on January 25, 1980, Dr. Caffarel advised Bor-delon that he could return to work. On January 30, 1980, Bordelon resumed his duties with Vulcan. No limitations were placed on his activities and no disability was assigned by Dr. Caffarel. Further, there was no medical evidence at this point to indicate that Bordelon had suffered a permanent partial loss of use or function of his eye or eyes which would trigger the benefits provided in La.R.S. 23:1221(4).

Vulcan resumed making workmen’s compensation benefits of $44 per week on January 9, 1981, based on a medical report by Dr. Caffarel. These benefits were discontinued on August 20, 1981, based on Dr. Caffarel's deposition testimony. At the deposition, Dr. Caffarel testified that, according to the “PDR” for ophthalmology (standard handbook for rating disabilities), Bordelon had no disability.

When compensation benefits are terminated based on competent medical evidence, the action is not arbitrary and capricious. Atlee v. Stone & Webster Engineering, Inc., 428 So.2d 569 (La.App. 3rd Cir.1983); Donald v. Big Three Industries, Inc., 426 So.2d 257 (La.App. 1st Cir.1983), writ denied, 429 So.2d 157 (La.1983). The employer’s conduct in discontinuing workmen’s compensation benefits must be judged primarily upon the facts existing and known to him at the time the payments were stopped. Celestin v. Fireman’s Fund Insurance Company, 430 So.2d 1263 (La.App. 1st Cir.1983). Vulcan reasonably relied on the medical information submitted to it, and its actions were not arbitrary, capricious or without probable cause.

Accordingly, the district court correctly denied statutory penalties.

EXPERT WITNESS FEE OF DR. CAFFAREL

At trial, Dr. Caffarel was accepted by the court as an expert in the field of ophthalmology. After completing his testimony, plaintiffs counsel requested that the court fix an expert witness fee for Dr. Caffarel. In making this request, plaintiffs counsel asked that the court take into consideration that Dr. Caffarel had been on the stand almost one hour and that he had to drive from Baton Rouge and back to attend court in Ascension Parish. The district court judgment failed to fix and assess as costs the expert witness fee of Dr. Caffarel. Appellant contends that the trial court erred in this respect.

Expert witness fees are mandatory under La.R.S. 13:3666(A), which provides as follows:

Witnesses called to testify in court only to an opinion founded on special study or experience in any branch of science, or to make scientific or professional examinations, and to state the results thereof,' shall receive additional compensation, to be fixed by the court, with reference to the value of time employed and the degree of learning or skill required, (emphasis ours).
Brack v. McClanahan, 417 So.2d 1364 (La.App. 4th Cir.1982).

The amount of the expert witness fee can be arrived at from the testimony adduced upon the trial of the cause without thé necessity of a contradictory rule. La.R.S. 13:3666(B)(1); Bain v. Anderson, 427 So.2d 60 (La.App. 4th Cir.1983).

Dr. Caffarel’s testimony was crucial evidence concerning Bordelon’s medical condition. Without this detailed medical testimony, Bordelon would have failed in proving his claim. Therefore, Dr. Caffarel is entitled to reasonable compensation for his appearance in court and for preparatory work done, and the fee allowed should be in line with those allowed in similar cases. Town of Krotz Springs v. Weinstein, 401 So.2d 664 (La.App. 3rd Cir. 1981).

Accordingly, we find that Dr. Caffarel is entitled to an expert witness fee of $300, to be taxed as costs and assessed to Vulcan. Oshinski v. Central National Insurance Company of Omaha, 432 So.2d 929 (La.App. 4th Cir.1983), writ denied, 440 So.2d 148 (La.1983).

DECREE

For the foregoing reasons, the judgment of the district court finding a permanent partial loss of use of one eye is amended to find a permanent partial loss of use of two eyes; the award is amended to grant Bor-delon permanent partial loss of use compensation benefits of $44 per week for a period of 200 weeks, subject to credits of $972.56 and $44 per week for 32 weeks; and the district court judgment is further amended to assess an expert witness fee of $300 for Dr. Caffarel, which fee is taxed as costs. In all other respects, the judgment is affirmed. Vulcan is cast for all costs.

AMENDED AND AFFIRMED.

      . La.R.S. 23:1221(4) was amended by Acts 1983, 1st Ex. Sess. No. 1, § 1. At the time of the accident, the applicable provisions of this section provided as follows:
      (4) In the following cases, the compensation shall be as follows:

      (i) For the loss of an eye, sixty-six and two-thirds per centum of wages during one hundred weeks.

      (o) In all cases involving a permanent partial loss of use or function of the members mentioned hereinabove, compensation shall bear such proportion to the amounts named herein for the total loss of such members as the disability to such members bears to the total loss of the member, provided that in no case shall compensation for an injury to a member exceed the compensation payable for the loss of such member.

      . Based on Bordelon’s average weekly salary of $323.40, a finding by the trial court of loss of use or function of an eye of around 13.6% or less would have led to an award of the statutory minimum award of $44 (20% of $222 [stipulated average weekly wage paid in all employment subject to the Louisiana Employment Law]). La.R.S. 23:1202; Jones v. Brown & Root, Inc., 379 So.2d 872 (La.App. 4th Cir.1980). Therefore, it is apparent that the trial court found that the percentage of loss of use or function of Bordelon’s eye was 13.6% or less.

      . There is no specific statutory limitation on this cumulation as is the case for individual losses of fingers and toes under La.R.S. 23:1221(4)(z).

      . This statute has since been amended by Acts 1983, 1st Ex. Sess., No. 1, § 1.

      . This medical report was not introduced into evidence (it was only attached as an exhibit to Vulcan’s answer). This report indicates that Bordelon had a 10% loss of function of the left eye.


author: COLE, Judge.

text:
    COMMERCIAL CREDIT CLAIMS SERVICES, INC. v. Herman RICHARDSON.
    No. 83CA0904.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Rehearing Denied Aug. 24, 1984.

      Gordon Hackman, Boutte, for plaintiff-first appellant.
    A.D. O’Neal, Jr., Houma, for defendant-second appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

The dispositive issue before us is whether or not the amendment to La.R.S. 9:2781 which states a single transaction creates an “open account” (and therefore allows the imposition of attorney fees) is to be applied retroactively.

This litigation arose from the following facts. Plaintiff, Commercial Credit Claims Services, Inc., performed a damage appraisal on a vehicle for defendant, Herman Richardson, for a fee of $330.60. When Richardson failed to pay the fee Commercial Credit filed suit, seeking the amount owed and attorney fees of $500.00. After hearing the evidence the court rendered judgment in favor of Commercial Credit for $330.60 plus interest from judicial demand and attorney fees of 25 per cent of the principal and interest. Plaintiff filed a motion for a new trial on the issue of attorney fees alone, alleging a fee of $82.50 was insufficient. Judgment on a new trial was rendered and its content was identical to the first judgment. Plaintiff filed a devolu-tive appeal, as to the amount of attorney fees only. Defendant filed a suspensive appeal.

Appellant Commercial Credit argues on appeal the court erred in awarding attorney fees of only 25 per cent of the principal and interest. Appellant Richardson argues the court erred in awarding any attorney fees whatsoever because such fees are not allowed under La.R.S. 9:2781 unless there is an “open account,” i.e., an account based on several transactions.

The applicable statute, La.R.S. 9:2781, provides a person who fails to pay an open account “... shall be liable for reasonable attorney fees for the prosecution and collection of such claim .... ” Prior to its amendment in 1983 the statute did not address the single transaction situation. The jurisprudence held consistently a single business transaction, with no expectation of future dealings, did not create an open account and therefore in such cases no attorney fees were allowed. All Star Floor Covering, Inc. v. Treece, 442 So.2d 655 (La.App. 1st Cir.1983); O.J. Rivero Towing Co. v. Coastal Flex Co., 414 So.2d 1384 (La.App. 4th Cir.1982).

Subsection “C” of the statute was amended, effective August 30, 1983 and reads as follows:

“For the purposes of this Section and Code of Civil Procedure Articles 1702 and 4916, ‘open account’ includes any account for which a part or all of the balance is past due, whether or not the account reflects one or more transactions and whether or not at the time of contracting the parties expected future transactions. ‘Open account’ shall include debts incurred for professional services, including, but not limited to, legal and medical services.” (Emphasis added.)

There is no question the amendment to this article overrules the holdings of the cases cited above. A single transaction, such as the one in the present case, now falls within the definition of an “open account” and attorney fees are appropriate in such cases.

The service rendered in this case was performed in August of 1981. Suit was filed in December of 1982. Judgment was rendered initially on March 3, 1983 and again (as a result of the new trial) on May 12, 1983. Therefore, at the time the cause of action arose, as well as at the time the matter was decided by the trial court, attorney fees were not allowed in single transaction situations. The law was changed to allow attorney fees in such situations while the matter was pending on appeal.

La.Civ.Code art. 8 sets forth the general rule: “A law can prescribe only for the future; it can have no retrospective operation, nor can it impair the obligation of contract.” Likewise, La.R.S. 1:2 states: “No Section of the Revised Statutes is retroactive unless it is expressly so stated.” However, it has been held consistently by the courts this general rule of prospective effect is applicable only to substantive laws, as opposed to procedural or remedial laws. Lott v. Haley, 370 So.2d 521 (La.1979), rehearing denied 1979. See, Ardoin v. Hartford Acc. & Indem. Co., 360 So.2d 1331 (La.1978), rehearing denied 1978.

The difference between a substantive law and a procedural law is that, a procedural law merely prescribes a method of enforcing a previously existing right whereas a substantive law creates a new obligation where none existed before. Guste v. Burris, 417 So.2d 445 (La.App. 1st Cir.1982); reversed on other grounds, 427 So.2d 1178 (La.1983).

We conclude the statutory amendment is indeed a substantive one. Prior to the amendment in August of 1983, the statute did not provide for attorney fees in cases involving a single transaction. The statute spoke only in terms of “open accounts” which the courts held unanimously did not include single business transactions where there was no expectation of future dealings. Therefore, prior to the amendment, the plaintiff had no substantive right to recover attorney fees; conversely, the defendant had no obligation to pay such fees. The amendment to the statute created such a right and such an obligation. Since the statutory amendment is substantive in nature it should not be applied retroactively. Therefore, we agree with appellant Richardson the court erred in awarding attorney fees in this case. Accordingly, we reverse that award. In all other aspects the judgment is affirmed. Costs of this appeal are to be paid by appellant Commercial Credit.

REVERSED IN PART; AFFIRMED IN PART.

      . Plaintiff filed a motion to dismiss, alleging defendant’s appeal was not timely. This court considered the matter and in an unpublished opinion determined that the appeal was filed timely, although the security was not. Commercial Credit Claims Services, Inc. v. Herman Richardson, 83 CA0904 (La.App. 1st Cir. Nov. 22, 1983). We concluded defendant’s appeal had therefore become a devolutive appeal, citing St. Amant v. Talley, 436 So.2d 659 (La.App. 1st Cir.1983).


author: SHORTESS, Judge.

text:
    Deborah Sue HUHN v. The KROGER COMPANY.
    No. 83 CA 0896.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Rehearing Denied Aug. 24, 1984.
    William C. Shockey, Baton Rouge, for plaintiff-appellant Deborah Sue Huhn.
    James E. Moore, Baton Rouge, for defendant-appellee The Kroger Co.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

This is an appeal from a judgment of the trial court dismissing the claim of Deborah Sue Huhn (plaintiff) for workers’ compensation benefits on a peremptory exception of prescription.

Plaintiff alleged in her petition that she was injured on November 5, 1980, in work-related accident. She had been working in the delicatessen of one of The Kroger Company’s (defendant) stores. Her position was that of “clean-up person,” and she was injured while lifting a large, heavy pan. Plaintiff continued to work, experiencing pain and discomfort until she finally terminated her employment in the second week of December, 1980. This suit was filed on November 24, 1981.

Defendant filed a peremptory exception of prescription stating that plaintiff’s accident occurred on November 5, 1980, that the suit was filed on November 23, 1981, and that “[p]laintiff s alleged disability was clearly manifest at the time of this alleged accident.” The trial court sustained the exception and dismissed plaintiffs suit.

La. R.S. 23:1209 provides the prescriptive periods applicable in workers’ compensation proceedings. In pertinent part, it states that “when the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops.”

Beginning with Mottet v. Libbey-Owens-Ford Glass Co., 220 La. 653, 57 So.2d 218 (1952), the Louisiana jurisprudence has construed this statute such that a disabling injury develops when a “disability to perform work becomes manifest either to the injured employee or his employer.” Stewart v. Hospitals Affiliates Intern., Inc. of Baton Rouge, 394 So.2d 647, 649 (La.App. 1st Cir.1980) (and authorities cited therein), aff'd, 404 So.2d 944 (La.1981).

It is obvious that plaintiffs “disability to perform work” was manifest to no one during the period from November 5 until the second week in December, 1980, because plaintiff continued to work during that time. Her November 5 injury developed into a disability only after it rendered her unable to continue in her employment. Plaintiffs deposition reveals that this disability occurred during the second week of December and prompted her termination of her employment. Roberts v. Sonic Drive In of Marksville, 441 So.2d 24 (La.App. 3rd Cir.1983), writ denied, 444 So.2d 121 (La.1984); See Faucheux v. Hooker Chemical Corp., 440 So.2d 1377 (La.App. 5th Cir.1983), writ No. 84-C-0132 denied, 444 So.2d 1238 (La.1984), writ No. 83-C-U88 granted, 444 So.2d 1251 (La.1984).

For the foregoing reasons, the judgment of the trial court is reversed, and the case is remanded for further proceedings. Costs of this appeal are taxed to defendant.

REVERSED AND REMANDED.

      . Plaintiff alleged in her petition that ‘‘[o]n or about November 12, 1980, plaintiff was dismissed from her employment with The Kroger Co. for reasons unrelated to her injury.” Both sides’ briefs fail to argue any facts to verify this allegation which we therefore assume was made in error.


author: LOTTINGER, Judge.

text:
    Katherine A. BARBAY v. AETNA CASUALTY & SURETY CO., G.K. Technologies Sperry Rail Services Division, A Subsidiary of Automation Industries, Sentury Insurance Company & Missouri Pacific Railroad Company.
    No. 83 CA 0895.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Rehearing Denied Aug. 24, 1984.

      James H. Dupont, Plaquemine, for Katherine A. Barbay.
    Richard Creed, Jr., Boris F. Navratil, Wm. F. Janney, Anthony J. Clesi, Jr., Baton Rouge, for defendants.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

Plaintiff was injured when she alighted from an automobile being driven by her husband, fearing that the auto was about to be struck by a railroad car. The incident occurred on August 9, 1980 at the intersection of LaBauve Street and Railroad Avenue in Plaquemine, Louisiana. Railroad Avenue runs north to south and is separated by a middle-ground occupied by a railroad track owned by the Missouri Pacific Railroad Company.

Plaintiff and her sister-in-law, Emma Jo Williamson, were passengers in the car being driven by plaintiff’s husband. Plaintiff's husband was attempting to cross Railroad Avenue driving west on LaBauve. Shortly before the incident a special motorized car, containing electronic testing equipment designed to test the track for faults, had passed through the crossing at LaBauve Street and Railroad Avenue. The testing car was owned by G.K. Technologies Sperry Rail Services Division, a subsidiary of Automation Industries (Sperry). The Sperry car had been traveling south, but at the time of the plaintiffs accident the Sperry car was being backed north to investigate a defect which the equipment had located several hundred feet south of the crossing at LaBauve Street.

Plaintiffs husband had stopped at a stop sign at the east edge of Railroad Avenue. He proceeded to cross Railroad Avenue after having seen the Sperry car south of where he was traveling. The motorist in front of plaintiffs husband stopped to allow some southbound traffic on Railroad Avenue to pass. The car in which plaintiff was a passenger stopped on top of the railroad crossing track. While plaintiff was stopped on the track the Sperry car at that time had stopped and began backing up to investigate the defect in the track. Ultimately plaintiffs husband became disturbed by the sight of the Sperry car moving toward him and began blowing his horn to either alert the Sperry car operator or the driver of the car in front of him as to his plight on the track. On hearing her husband blowing the horn, plaintiff, who had been turned in the opposite direction conversing with her sister-in-law in the back seat looked up and seeing the Sperry car, panicked, and in jumping out to escape managed to fall and break her hip.

After denying defendant’s motions for directed verdicts, the case went to the jury for determination on the issues of the negligence of plaintiffs husband for stopping on the track as a proximate cause of plaintiffs injuries; the negligence of the Sperry crew in the operation of the testing car; and the negligence of the Missouri Pacific Railroad Company in not adequately warning of the approach of the Sperry car by means of flashing lights or flagman.

The jury returned verdicts finding Mr. Barbay 15% at fault, Sperry 46% at fault; and Missouri Pacific 39% at fault and awarded damages to plaintiff in the amount of $165,100.

The Missouri Pacific Railroad Company, Sperry and its insurer, Aetna, have appealed the judgments based on their respective percentages of fault. The plaintiff has answered the appeal seeking to have the amount of the judgment increased.

ASSIGNMENT OF ERROR NO. 1

This error complains about the jury’s failure to assess any culpability to plaintiff in causing her own injuries.

Shortly before the accident plaintiff was turned to the right and away from the oncoming Sperry car. She was only made aware of the predicament upon hearing the car horn being blown by her husband. When plaintiff questioned her husband as to the reason for the continuous horn blast he replied that the train was going to hit them. Although, as pointed out by defendants, the other occupants did not hastily take action similar to that of the plaintiff, it cannot be said that the jury clearly and manifestly, erred in not assigning any degree of fault to plaintiff for her conduct.

A person acting in an emergency situation is allowed behavior that is below that required of a reasonable person under normal circumstances, regardless if that person may have subsequently and upon cool reflection realized that he failed to act reasonably. Hickman v. Southern Pacific Transport Company, 262 So.2d 385 (La.1972).

In the instant case the Sperry car had gone past the suspected defect approximately three to four rail lengths, each rail being thirty-nine feet in length. The defect itself was only two rail lengths or approximately eighty feet from the crossing. The Sperry car itself is sixty-two feet in length and eighteen feet in height. The plaintiff may have been startled by the sheer size of the Sperry car in relation to its distance away from the crossing. A crewman employed by Sperry testified that in fact the Sperry car was only approximately ten to thirty seconds away from hitting the car in which plaintiff rode. Therefore, we cannot say the jury was in error in not assessing a percentage of fault to plaintiff.

ASSIGNMENT OF ERROR NO. 2

In this assignment defendants argue the jury erred in assessing Mr. Bar-bay’s culpability at only 15%.

Mr. Barbay is a resident of Plaquemine and fully aware of the nature of this particular crossing. He was also aware of the presence of the Sperry Car and that he may have to stop his automobile on the crossing.

We are of the opinion that the jury, as the trier of fact, was not clearly in error in assessing the percentage of fault attributable to Mr. Barbay at only 15%. The jury is given great leeway in assessing the degrees of fault attributable to the parties in comparative negligence cases and should not be overturned on appeal without a clear showing of error.

ASSIGNMENT OF ERROR NO. 3

The defendant, Missouri Pacific, argues that the trial court erred in instructing the jury that a warning concerning the movement of the Sperry car was legally required.

La.R.S. 32:168 outlines the duty incumbent upon the railroad when approaching a crossing. The statute states, in part, that a bell is to be rung or a whistle is to be blown commencing at a distance of 300 yards from the crossing until the crossing is reached, unless the distance from the crossing and the start of that movement or the distance between the crossings is less than 300 yards, in which ease the warnings should be sounded for the lesser distance.

The statute, however, does not specify whether or not the warning signal is only to be given when the crossing is going to be passed, or whether a train operator intends simply to travel toward a crossing. The situation with which we are presented does not lend itself easily to a strict interpretation of La.R.S. 32:168. Here we are concerned with a situation in which the operator of the Sperry car had no intention to actually pass through the crossing a second time.

The use of a bell or whistle in this instance would have certainly given plaintiff the wrong intent of the approaching Sperry car. By blowing the whistle continuously as outlined by the statute the occupants would have been given the indication that the Sperry car was surely going to travel through the crossing. The blowing of the whistle in accordance with the statute would lead to the same type incident that we have in this ease by conveying an incorrect message to the occupants stranded upon the tracks.

We are of the opinion that the trial court was incorrect in instructing the jury that it was their legal duty to find that it was the responsibility of the railroad to give sufficient warnings to motorists based upon these facts and using La.R.S. 32:168. However, we do find that the railroad does owe a motorist a duty to take precautions in such situations which are reasonably effective to inform him that the train is merely approaching a crossing but not traversing it. This rule may be adequately addressed by placing a flagman at the crossing to wave cars through the crossing safely until the danger is over. We do not want to give the impression that this is the only reasonable means by which the problem can be handled effectively. We are merely presenting one solution which would be effective and is fair to those parties faced with similar circumstances.

Although the jury was misinstruct-ed as to what the railroad company’s legal duty was, they did however reach the correct decision concerning the standard of care reasonably expected of the railroad in light of the evidence presented. Therefore we see no reason to upset the jury’s verdict with respect to each defendant’s liability.

ASSIGNMENT OF ERROR NO. 4

In this assignment defendant, Missouri Pacific, argues that the trial court erred as a matter of law in not directing the jury to find, that the absence of electric warning lights or a flagman at the crossing could not be deemed a proximate cause of plaintiff’s injuries.

We are of the opinion the judge was correct in not so instructing the jury. It is the proper duty of the jury as the trier of fact to pass on the credibility of witnesses and to arrive at a conclusion based upon the facts which could be controverted and are conflicting. La.Code Civ.P. art. 1732; Morel v. Highline Construction Co., 339 So.2d 1324 (La.App. 1st Cir.1976); Valentine v. J.D. Marconi Service and Supply Company, 128 So.2d 218 (La.App. 2nd Cir. 1960). The evidence was not clear as to whether the signal lights were operating at the time of the accident. The jury may well have determined that the warning lights were in fact not operational. Considering the fact that the train had already passed through the crossing, the jury may have considered that the lack of electric warning lights or a flagman signaling traffic safely through the crossing was negligence. It is the jury’s duty as trier of fact to determine whether the absence of warning lights or a flagman at the crossing was a proximate cause of plaintiffs injuries.

ASSIGNMENT OF ERROR NO. 5

Defendant, Missouri Pacific, argues the trial judge erred in excluding the testimony of a witness whose identity had not been discovered until shortly before trial.

The excluded witness was an employee of the Missouri Pacific Railroad Company who was not listed on the pre-trial order, nor mentioned in any of the discovery depositions taken in the two and one-half years prior to trial. The witness was said to be following the testing car some distance up the track. During discovery the defendants were particularly asked for names and addresses of all of the Missouri Pacific Railroad Company employees working on or with the train involved in the accident. Further they requested a list of any other witnesses to the accident.

The excluded witness’ brother, also a Missouri Pacific Railroad Company employee, was deposed and stated that there were no rail cars following the Sperry car and never mentioned his brother’s name during the deposition. Another witness employed by Sperry also stated that no other rail car was following the Sperry car.

The pretrial order controls the subsequent course of action unless it is modified at trial to prevent manifest injustice. Sibley v. Menard, 398 So.2d 590 (La.App. 1st Cir.1980), writ denied 400 So.2d 211 (1981). In refusing to modify the pretrial order the trial judge has much discretion. Sibley, supra.

An orderly disposition of each case and of the entire docket and the avoidance of surprise are sufficient reasons for not allowing a change from the pre-trial order. Avondale Shipyards, Inc. v. Larose Shipyard, Inc., 289 So.2d 192 (La.App. 1st Cir.1973).

In giving its reasons for denying a change of the pre-trial order to include the newly discovered witness the trial court stated that it believed to allow the witness to testify would confuse the jury and would not be in the interest of an orderly procedure. The trial court’s ruling was not clearly in error, therefore, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 6

Defendant, Sperry Rail Services, argues that the jury erred in finding them 46% at fault and Missouri Pacific not more than 39% negligent.

Sperry specifically makes reference to the contract between them and Missouri Pacific. The contract provides that Sperry Rail Services is offering a service to Missouri Pacific to test its rails for defects. Sperry agreed to furnish at its own expense “... all persons, power, materials and supplies ...” to operate the equipment. The Missouri Pacific agreed to furnish employees necessary for the “... expeditious movement and safety of Sperry equipment while the same is in transit or being operated upon its lines, to supply all services and materials required for safety of operation

This suit does not involve damage to either Sperry or Missouri Pacific equipment or employees. The damage complained of was occasioned by a third person not privy to the contract. The contract between Sperry and Missouri Pacific is silent as to who is liable for damages to third persons.

After examining the contract the jury may have believed the operation of the train was a joint responsibility of Sperry and Missouri Pacific. The testimony in the case revealed that in fact the Missouri Pacific conductor was as integral a participant in the operation of the train as was the operator employed by Sperry. The record also reflects that employees of both Sperry and Missouri Pacific saw that plaintiffs car was in peril on the crossing just before plaintiff bounded from the car. The record reflects, as previously discussed, that the Sperry car was a matter of 10-30 seconds away from impact with the Barbay vehicle. Considering the short distance between the defect and the crossing the jury may have felt it negligent on the part of the employees of Sperry in not taking some reasonable action in conveying to plaintiff that a collision was not imminent.

Without a clear showing that the jury was in error this court will not alter the percentage of fault apportioned to Sperry. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 7

Defendant, Missouri Pacific, argues that the quantum award of damages is excessive. The jury in this case awarded plaintiff the sum of $165,100 in damages including $15,600 in lost wages, $16,500 in past medical expenses, $125,000 in general damages, $3,000 for loss of future wages and $5,000 for future medical expenses.

Plaintiff answered the appeal seeking an increase in damages. Plaintiff bases an increase in the award on the fact that the jury awarded the minimum amount regarding medical expenses, lost wages, and general damages.

Mrs. Barbay was 53 years old at the time of the accident. She sustained a fracture through the neck of the femur which was successfully treated by the insertion of a hip nail. She did well after surgery, developed no complications and was discharged from the hospital after approximately two weeks. Her period of convalescence lasted for about six months, first in a wheel chair and then in a walker. Eight months following the accident she was released to return to work. The treating surgeon testified that she had a 25% permanent disability in the left lower extremity and that a second operation would be necessary to remove the hip nail which was causing her some discomfort.

A jury verdict will not be overturned unless it was manifestly erroneous. Babin v. St. Paul Fire and Marine Insurance Company, 385 So.2d 849 (La.App. 1st Cir.1980); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Both defendant and plaintiff have cited cases which involve injuries similar to plaintiffs. Reinhard v. City of New Orleans, 371 So.2d 286 (La.App. 4th Cir.1979); Molaison v. West Brothers of Thibodaux, Louisiana, Inc., 338 So.2d 726 (La.App. 1st Cir.1976); Gordon v. General Motors Corporation, 323 So.2d 496 (La.App. 3rd Cir.1975). Each of the cases involved awards which were substantially less or in excess of that which were awarded to the plaintiff in the present case.

Jury awards for an injury similar to plaintiffs vary widely. After reviewing the evidence we find the jury award is adequate and therefore should remain unchanged.

Therefore, for the above and foregoing reasons the judgment of the trial court is affirmed at appellants’ cost.

AFFIRMED.