text:
    Harold L. JOHNSTON dba Johnston’s Community Grocery, Plaintiff-Appellant, v. MOREHOUSE PARISH POLICE JURY, Defendant-Appellee.
    No. 15898-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.
    Rehearing Denied Feb. 23, 1984.
    Writ Denied April 23, 1984.
    McLeod, Swearingen, Verlander & Dollar by David E. Verlander, III, Monroe, for plaintiff-appellant.
    Rankin, Yeldwell, Hearring & Katz by James E. Yeldell, Bastrop, for defendant-appellee.
    Before PRICE, JASPER E. JONES and NORRIS, JJ.
   JASPER E. JONES, Judge.

The plaintiff, Harold L. Johnston, appeals a judgment which upheld the validity of a parish ordinance banning the sale of 3.2% beer in Ward 2 of Morehouse Parish. Local governing units may only pass such an ordinance pursuant to a local option election authorized by Title 26, Chapter 3 of the Revised Statutes. LSA-R.S. 26:595; Niette v. Natchitoches Parish Police Jury, 348 So.2d 162 (La.App. 3d Cir.1977); Johnston v. Morehouse Parish Police Jury, 424 So.2d 1053 (La.App. 2d Cir.1982). Therefore, the ultimate question for our determination is whether the Morehouse Parish Police Jury was authorized by Chapter 3 to call the local option election giving rise to the ordinance in question. We find that Chapter 3 authorized the election and affirm the judgment.

Johnston is the owner and operator of the Community Grocery located in Ward 2 of Morehouse Parish. He holds a license issued by the Morehouse Parish Police Jury authorizing the sale of 3.2% beer at Community Grocery. On November 2, 1982 a local option election was held in which a majority of the voters in Ward 2 approved a proposition to prohibit the sale of 3.2% beer. Pursuant to the election results the police jury on Dec. 13, 1982 adopted Ordinance No. 1073, § 3-144 banning the sale of 3.2 beer in Ward 2. Johnston subsequently filed suit to have the ordinance declared invalid and to enjoin its enforcement.

The identical parties and issues were previously before this court when Johnston attacked the validity of a similar ordinance banning the sale of 3.2% beer in Ward 2. That ordinance was adopted pursuant to a local option election held October 27, 1979. We held the ordinance was invalid because the election was unauthorized by law. Johnston v. Morehouse Parish Police Jury, supra. There have been a number of changes in Chapter 3 since the date of the 1979 election. A complete understanding of the issues here involved requires an in depth analysis of our prior opinion and the law in effect on October 27, 1979.

At that time Chapter 3, Part I, contained three provisions specifically applicable to local option elections to prohibit the sale of 3.2% beer. LSA-R.S. 26:581.1, 586.1 and 588. The police jury urged that the source of its authority to conduct the 1979 election was 26:586.1 which provides in pertinent parts:

A. In addition to the procedure for calling local option elections by petition of twenty-five percent of the qualified electors residing in any ward or incorporated municipality an election may be ordered to determine whether or not the business of manufacturing, producing, rectifying, distilling, blending, using, storing, distributing and selling alcoholic beverages containing more than one-half of one percent alcohol by volume but not more than three and two-tenths percent alcohol by weight, shall be conducted and licensed therein. Notwithstanding the provisions of R.S. 26:588, the ballot, in addition to the propositions contained in R.S. 26:587, shall contain the following propositions:
“Shall the sale of beverages containing more than one-half of one percent alcohol by volume but not more than three and two-tenths percent alcohol by weight be permitted in .

The police jury urged that 26:586.1 A constituted a substantive grant of authority to every local subdivision in the state to prohibit the sale of 3.2% beverages pursuant to local option elections. In direct conflict with this argument was the language of 26:588 which banned all parishes in the state from prohibiting the sale of 3.2% alcoholic beverages. This statute provided:

Prohibition of the sale of any or all alcoholic beverages by a local option election held pursuant to this chapter shall not operate as a prohibition of the manufacturing, producing, using, distributing, storing, or selling of beverages containing more than one-half of one percent alcohol by volume but not more than three and two-tenths percent alcohol by weight. Provided, however, this section shall not be construed as or have the effect of vitiating or affecting any ordinances adopted prior to 1948 by any political subdivision which prohibited the sale of beverages containing alcohol of more than one-half of one percent by volume; to preserve those ordinances of local subdivisions that prohibited the sale of beverages containing under 3.2 percent alcohol which were adopted prior to and were in effect in 1948; and any court decisions to the contrary are legislatively overruled.

The first sentence of 26:588 was incorporated into the Revised Statutes upon their passage in 1950. 26:586.1 was added to Chapter 3 in 1974. If Chapter 3 had only contained these two provisions dealing with the prohibition of 3.2% beer there may have been some support for the argument that 26:586.1, as the later passed statute, repealed 26:588 by implication. See LSA-C.C. 22 and 23. There was little support for this argument, however, because the act which added 26:581.1 to Chapter 3, as an exception to 26:588 was also passed in the 1974 session. This statute reiterated the ban against prohibiting 3.2% beer sales contained in 26:588, however, it specified that 12 parishes were authorized to prohibit such sales pursuant to local option. 26:581.1 provided:

A. The provisions of this Chapter authorizing the prohibition of alcoholic beverages on a parish-wide basis and the prohibition of beverages containing more than one-half of one percent alcohol by volume but not more than three and two-tenths percent alcohol by weight shall not apply and shall not be available for use in the parishes of or the wards or municipalities in any of the parishes of the state except Beauregard, Washington, Rapides, Natchitoches, Red River, Grant, LaSalle, East Carroll, West Carroll, Beinville, Jackson and Winn Parishes.
B. In the exercise of local option pursuant to the provisions of this Chapter in the wards and incorporated municipalities located in all parishes except Beauregard, Washington, Rapides, Natchitoch-es, Red River, Grant, LaSalle, East Carroll, West Carroll, Beinville, Jackson and Winn as provided in Subsection A of this Section, three propositions and no others shall appear on the petition provided for in R.S. 26:583 and on the ballot provided for in R.S. 26:587, which propositions shall be limited to propositions 1, 3 and 4 contained in R.S. 26:583 and R.S. 26:587, respectively.

Because Chapter 3 contained all three provisions we made the following observations and findings at 424 So.2d 1058:

Appellee’s contention, to reiterate, is that LSA-R.S. 26:586.1 authorizes local subdivisions in all parishes of the state— including Morehouse Parish — to ban the sale of 3.2% intoxicants pursuant to local option. In assessing appellee’s suggested construction of LSA-R.S. 26:586.1 we must refer to LSA-R.S. 26:581.1 and LSA-R.S. 26:588 which were contemporaneously effective with LSA-R.S. 26:586.-1. Having conducted this analysis, we are constrained by a single compelling and irresistable observation to reject ap-pellee’s contention and invalidate the instant prohibition. Under the construction of LSA-R.S. 26:586.1 urged by ap-pellee, LSA-R.S. 26:586.1 would implicitly repeal LSA-R.S. 26:588 and render LSA-R.S. 26:581.1 meaningless.
LSA-R.S. 26:586.1, as construed by ap-pellees, is directly contrary to LSA:R.S. 26:588. Appellees contend that LSA-R.S. 26:586.1 authorizes local options to prohibit the sale of 3.2% intoxicants in all parishes of the state; LSA-R.S. 26:588 expressly and absolutely bans such prohibitory local options in all parishes. LSA-R.S. 26:586.1, as construed by appellees, transforms LSA-R.S. 26:581.1 into inoperative surplusage. LSA-R.S. 26:581.1 enumerates with painstaking specificity the 12 parishes in which such elections can be conducted. It is manifest, of course, that this detailed enumeration in LSA-R.S. 26:581.1 is needless surplusage if the legislature intended that local options on 3.2% intoxicants could be held in all parishes.
In addition to rendering LSA-R.S. 26:588 and LSA-R.S. 26:581.1 inoperative individually, appellee’s suggested construction of LSA-R.S. 26:586.1 also disrupts the legislative scheme formed by the interaction of these two statutes. LSA-R.S. 26:588 provides the general rule that this type of local option in (sic) not allowed in any parish of the state, and LSA-R.S. 26:581.1 delineates the specific exceptions to this general ban, .permitting this type of option in 12 enumerated parishes. Thus, the legislative rule formed by the interaction of these statutes is that local options may prohibit the sale of 3.2% intoxicants solely in the 12 parishes enumerated in LSA-R.S. 26:581.1. LSA-R.S. 26:586.1 as construed by appellees, would of course thwart the legislative rule formed by the interaction of LSA-R.S. 26:588 and LSA-R.S. 26:581.1 by stating that local options may ban the sale of 3.2% intoxicants in all parishes.
In summary, we reject the contention that LSA-R.S. 26:586.1 was intended to be a grant of substantive authority to all parishes in the state to prohibit the sale of 3.2% intoxicants by local option. We find it more plausible that LSA-R.S. 26:586.1 was a procedural apparatus. It was intended not to implicitly repeal LSA-R.S. 26.588 and render LSA-R.S. 26:586.1 (sic) superfluous but to implement the substantive power to conduct prohibitory local options — in those parishes which already possessed that substantive power pursuant to LSA-R.S. 26:581.1. (emphasis contained in our opinion)

At the time of the 1982 election, November 2, 1982, 26:581.1 and 588 had been repealed. Johnston, nevertheless, contends the election was unauthorized by law. His contention is based on our statement that, “We find it more plausible that LSA-R.S. 26:586.1 was a procedural apparatus.” (See our above quote). He argues that our statement conclusively established 26:586.1 as a procedural statute. As such it cannot now be construed as a substantive grant of power for any police jury in the state, to hold local option elections prohibiting the sale of 3.2% beer.

We find it unnecessary to address Johnston’s argument because we conclude the police jury had the substantive power to hold the election under LSA-R.S. 26:582, which provides:

Upon petition of not less than twenty-five percent of the qualified electors residing in any parish, ward, or any incorporated municipality the governing authority shall order a referendum election to be held to determine whether or not the business of manufacturing, producing, rectifying, distilling, blending, using, storing, distributing and selling alcoholic beverages, shall be conducted and licensed therein.
In the case of such an election held on other than a parishwide basis the election shall be separately called and held, and the result separately binding for each incorporated municipality, and for the unincorporated balance of the ward. In the case of an election called on a parishwide basis the result shall be binding on the entire parish. No such election shall be held for the same subdivision oftener than once in every two years, (emphasis supplied)

This statute allows every local governing unit in the state to hold local option elections prohibiting the sale of alcoholic beverages. For purposes of Chapter 3 the term alcoholic beverages is defined in LSA-R.S. 26:241. See LSA-R.S. 26:581. In pertinent parts 26:241 provides:

(1) “Alcoholic beverages” means any fluid or any solid capable of being converted into fluid, suitable for human consumption, and containing more than one-half of one per cent alcohol by volume, including malt, vinous, spiritous, alcoholic or intoxicating liquors, beer, porter, ale, stout fruit juices, cider, or wine.
(a) “Beverages of low alcoholic content” means alcoholic beverages containing not more than six per cent alcohol by volume.
(b) “Beverages of high alcoholic content” means alcoholic beverages eon-taming more than six per cent alcohol by volume, (emphasis supplied)

The general definition of “alcoholic beverages” in 26:241 covers 3.2% beer. 26:582 merely uses the term alcoholic beverages. It does not specify alcohol content. Therefore, 26:582 gives local governing units the substantive authority to hold local option elections to prohibit the sale of all alcoholic beverages.

This grant of authority by 26:582 was in effect at the time of the 1979 election. The reason we did not consider it in our prior Johnston opinion is that 26:588 provided an exception to the general rule by banning the prohibition of 3.2% beer. As was noted above 26:588 was repealed prior to the 1982 election. At the time that election was held there was nothing in Chapter 3 limiting the type of alcoholic beverages which could be prohibited by local option. We conclude that the November 2, 1982 election was authorized by law. Therefore, the Morehouse Parish ordinance banning the sale of 3.2% beer in Ward 2 of that parish is valid.

We note that during the course of our previous Johnston opinion we stated that 26:588 provides a general rule which bans all parishes from prohibiting the sale of 3.2% beer and that 26:581.1 provides an exception to that general rule. 424 So.2dat 1057. We would have been more accurate if we had recognized the existence of 26:582 and stated that it provides the general rule which allows all parishes, wards and municipalities to prohibit the sale of all alcoholic beverages and 26:588 provided an exception to the general rule by banning the prohibition of 3.2% beer sales and 26:581.1 provides an exception to the exception by listing 12 parishes which could prohibit such sales.

For the foregoing reasons, the judgment is AFFIRMED. All costs of this appeal are assessed to plaintiff.

      . Ordinance No. 1073, § 3-144 bans the sale of all alcoholic beverages in Ward 2. Johnston only questions its validity insofar as it bans the sale of 3.2% beer.

      . In addition, because of the provisions of 26:581.1, there were some special procedures for particular parishes contained in Chapter 3, Part II, to-wit: LSA-R.S. 26:601 et seq. These provisions are irrelevant to our discussion. They were repealed by Acts 1982, No. 471, § 1.

      . The propositions contained in 26:587 are:
      1. Shall the sale of beverages of YES [ ] low alcoholic content containing more than three and two-tenths percent alcohol by weight, and not more than six percent alcohol by volume, _ be permitted in. NO [_]

        2. Shall the sale of beverages YES [ ] containing more than one-half of one percent alcohol by volume but not more than three and two-tenths percent alcohol by weight be permitted in. NO fj
      3. Shall the sale of beverages of YES [ j high alcoholic content, containing more than six percent alcohol by volume for consumption on the premises be permitted in . NO [ j
      4. Shall the sale of beverages of YES [ j high alcoholic content, containing more than six percent alcohol by volume by the package only and not for consumption on the premises be permitted in . NO [~]

      Proposition 2 was eliminated by 26:581.1 B except when the election was being held in the 12 parishes specified.

      . This provision was enacted by Acts 1948, No. 372, § 5.

      . Acts 1974, No. 648, § 1.

      . Acts 1974, No. 41, § 2.

      . 26:581.1 had been declared unconstitutional before the date of the 1979 election. Nomey v. State, 315 So.2d 709 (La.1975). However, it remained on the books and we considered it important to our analysis of legislative intent because it was enacted at the same legislative session as 26:586.1. 424 So.2d at 1057 (see footnote 2).

      . 26:588 was repealed by Acts 1980, No. 663, § 1. 26:581.1 was repealed by Acts 1982, No. 476, § 1 which became effective September 10, 1982.

      . As used throughout Chapter 3, 3.2% beer is beer that is more than one-half of one percent (½ of 1%) alcohol by volume but not more than three and two-tenths percent alcohol (3.2%) by weight.

      . In fact, the provision which became R.S. 26:582 was enacted by the same act which enacted the provision that became the first sentence of 26:588. Acts 1948, No. 372, § 1.


source: Caselaw Access Project

author: SEXTON, Judge.

license: Public Domain

text:
    Nelda REYNOLDS, Plaintiff-Appellee, v. WAL MART STORES, INC., Defendant-Appellant.
    No. 15908-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.

      Lunn, Irion, Switzer, Johnson & Salley by Frank M. Walker, Jr., Shreveport, for defendant-appellant.
    Watson, Murchison, Crews, Arthur & Corkern by Ronald E. Corkern, Jr., Natchi-toches, for plaintiff-appellee.
    Before HALL, MARVIN and SEXTON, JJ.
   SEXTON, Judge.

Plaintiff brought an action in workers’ compensation against defendant for disability benefits, statutory penalties, and attorney’s fees. The trial court awarded plaintiff total and temporary disability benefits, statutory penalties and attorney’s fees. We amend, and as amended, affirm the trial court’s decree.

Plaintiff in this cause is Nelda Faye Reynolds, a 32-year old white female who lives outside Mansfield, Louisiana. Defendant herein is Wal-Mart Stores, Incorporated, a foreign corporation authorized to do business in Louisiana (hereinafter referred to as Wal-Mart).

Ms. Reynolds began working for Wal-Mart in November of 1981, at its Mansfield outlet. She was employed to manage several departments, and her duties encompassed the management of the garden center, and the artificial flowers, home furnishings, and pet departments. In the discharge of her duties, Ms. Reynolds was required to implement mark-ups and markdowns; lift, carry and shelve merchandise; arrange sales displays; and maintain the cleanliness and order of her departments.

The work accident which precipitated the instant suit occurred on Thursday, July 8, 1982. At that time, plaintiff was working 40 hours a week, at the rate of $3.85 per hour. On that date, Ms. Reynolds was moving a vertical stack of five or six curio cabinets into an aisle for the purpose of arranging the cabinets into a sales display. As Ms. Reynolds attempted to move the stack of cabinets, they began to sway and shift. In an attempt to steady the swaying cabinets, Ms. Reynolds reached out to grab them. Ms. Reynolds successfully prevented the cabinets from falling to the floor, but fell to the concrete floor in the process, striking her hands on several shelves on the way down. Plaintiff — who is left-handed — injured her left wrist and left ankle in the fall. She remained on the floor stunned for several minutes before regaining her feet.

Immediately after regaining her feet, plaintiff walked to the office of the store manager to report her injury. Ms. Reynolds’s injury to her left ankle was apparent to her co-workers, who testified that she was limping and noticeably favoring one foot as she appeared at the store manager’s office. However the store manager rebuked plaintiff, and according to Ms. Reynolds admonished her that “when you start doing stupid things like that it is time to go home, go punch out.” Ms. Reynolds then returned to her work area to put away her marking gun, since Wal-Mart employees “were told never to leave [a] marking gun out.” The store manager again chastised her, instructing her to go home.

Ms. Reynolds thereafter went directly home, and obtained the assistance of a friend to drive her to the DeSoto General Hospital in Mansfield. On the night of July 8, an emergency medical technician at DeSoto General administered a nerve conduction test on plaintiff’s fingers and left hand, conducted an X-ray examination, applied a plaster splint to plaintiff’s left wrist and hand, and referred plaintiff to Shreveport orthopaedic surgeon Dr. James Zum Brunnen.

The following day, Friday, July 9, plaintiff was examined by Dr. Zum Brunnen. Dr. Zum Brunnen found that plaintiff had tenderness and pain in her left wrist, and periodic numbness in the thumb and fingers of the left hand. Dr. Zum Brunnen fitted plaintiff with a forearm brace, and prescribed an anti-inflammatory medication and Tylenol # 3 for her.

Dr. Zum Brunnen advised plaintiff that she should not return to work so that her condition would have ample time to improve. However, plaintiff explained to Dr. Zum Brunnen that she needed to work because her husband was disabled. Dr. Zum Brunnen then advised plaintiff to obtain a leave of absence until the following Monday, and to wear her splint when she returned to work.

Pursuant to Dr. Zum Brunnen’s orders, plaintiff utilized sick leave and did not work her scheduled shifts on Friday and Saturday. Plaintiff returned to work the following Monday, July 12, wearing her splint, and informed her superiors that because of her wrist injury she was unable to discharge all of the physical tasks associated with managing four departments. Her superiors initially insisted that she would have to retain responsibility over the four departments. However, after plaintiff threatened to quit, her superiors reduced her weekly workload from forty hours to twenty hours, and relieved her of her responsibility over all departments save the pet department.

Thus subsequent to July 12, plaintiff worked 20 hours per week for several weeks under her reduced responsibilities as manager of the pet department. Her tasks as manager of that department involved manual work, and included feeding the birds, fish and animals, and cleaning their cages and aquariums.

On July 27, Ms. Reynolds returned to Dr. Zum Brunnen. Dr. Zum Brunnen noted that plaintiff had suffered severe pain in her left wrist, during the July 12 to July 27 interim, in performing the physical tasks associated with her job as pet department manager. Dr. Zum Brunnen noted that plaintiff “has kept on with her regular work but now needs to be taken off of this type work.” Dr. Zum Brunnen therefore recommended that plaintiff “will either need to be completely off work or else do work just of a clerical nature.”

Plaintiff returned to work with Dr. Zum Brunnen’s recommendation following the July 27th medical examination, and her superiors consented to promoting her to the supervisory position of Customer Service Manager, in which position plaintiff essentially functioned as a checkout supervisor. Thus subsequent to July 27, plaintiff was relieved of the manual responsibilities she was previously charged with, and assumed a supervisory role approximately 35 hours a week as a checkout supervisor. Plaintiff acknowledged that, in relation to her former duties, her job as checkout supervisor involved “lighter work.” The position of checkout supervisor entailed, more specifically, “giving out change for the cashiers, okaying the checks, and things like this which required just writing my initials on the back of Visas, Master Cards and checks.”

Plaintiff’s job promotion to checkout supervisor, which relieved her of the manual labor involved in managing several departments, significantly alleviated the painful wrist condition which had previously plagued her from July 12 to July 27 during the performance of manual labor. This effect was duly noted by Dr. Zum Brunnen who observed, on August 25, 1982, that plaintiff

“seems to be doing quite well as far as her wrist is concerned. She is not having pain but does have some intermittent numbness in her fingers. She has been promoted to a supervisory job and does not have to do any lifting with the arm. Has good range of motion of the wrist, no swelling. She no longer needs a wrist splint.”

The condition of plaintiff’s left wrist continued to improve during her tenure as checkout supervisor, although Dr. Zum Brunnen noted definite symptoms of nerve problems which might later require neurolysis — removal of the scar around the nerve.

Plaintiff’s condition subsequently deteriorated to some degree, as the injury to her left ankle — which had been sustained on July 8 and had previously remained relatively dormant — began to cause her pain. Thus Dr. Zum Brunnen noted on November 17, 1982, that plaintiff registered

“complaints about the left ankle from her previous injury_ There is tenderness in the distal tibial fibular joint.... The patient may have some chronic per-sistance of tendonitis.... The area was injected with lcc of Celestone Soluspan and 2cc of Xylocaine.... She was given a prescription for Tylenol # 3 for pain.”

Dr. Zum Brunnen did not make any written recommendation at that time that plaintiff stop working.

Plaintiff was subsequently laid off her job at Wal-Mart on December 24, 1982. Plaintiff attributed her discharge from Wal-Mart’s employ to absences that resulted from her injuries. Wal-Mart’s managers testified, to the contrary, that plaintiff was laid off because of the reduced demand for retail employees subsequent to Christmas.

Plaintiff’s condition continued to deteriorate, subsequent to her termination, as the injuries in both her left ankle and wrist grew increasingly painful and disabling. On December 29, 1982, Dr. Zum Brunnen observed, with respect to plaintiff’s left wrist, that plaintiff

“is having symptoms of carpal tunnel syndrome on the left [wrist] with numbness in her hand, [with] pain going up her arm.... The patient’s symptoms of carpal tunnel syndrome, post traumatic, have not resolved.... It may well be that she will require surgical treatment on it.”

Carpal tunnel syndrome is a condition in which the median nerve which supplies sensory and motor impulses to the hand becomes abnormally constricted by the sheath of ligament through which it flows, causing pain and numbness to the wrist and hand.

Dr. Zum Brunnen, on December 29th, noted, with respect to plaintiff’s left ankle, that plaintiff

“cannot stand as much as five hours a day on the left ankle because of pain.... She has tenderness anterolaterally over the ankle. Again, the ankle was injected ... with lcc of Celestone and 2ccs of Xylocaine.”

Dr. Zum Brunnen found that plaintiff “is unable to work in her present condition until this problem is resolved.” Dr. Zum Brunnen also stated that plaintiff “has been taken off her employment and is unable to be gainfully employed for an indefinite period of time because of wrist and ankle injuries.”

Plaintiff was again seen by Dr. Zum Brunnen on January 5, 1983. Dr. Zum Brunnen noted at that time that plaintiff was still unable to work in her then existing condition, and that surgery on plaintiff’s left wrist was advisable. Plaintiff was accordingly scheduled to undergo surgery on January 17,1983, at the Physicians and Surgeons Hospital in Shreveport. However, plaintiff was refused admittance into the Physicians and Surgeons Hospital on that date because Wal-Mart declined to pay for her operation and because plaintiff herself had insufficient funds to finance the operation.

On January 18, subsequent to Wal-Mart’s refusal to pay for plaintiff’s surgery, plaintiff’s attorney filed suit against Wal-Mart for disability benefits, statutory penalties, and attorney’s fees.

On the night of February 24, the pain in plaintiff’s left wrist was so severe that she went to the emergency room of the DeSoto General Hospital, was administered a muscle relaxant, a shot to kill the pain, and an additional shot of Cortisone Xylocaine directly into the inflamed left wrist. Plaintiff’s severe pain continued, and at 6:00 a.m. the following day, February 25, she entered the DeSoto General Hospital and received two more injections.

These remedial measures were insufficient to staunch the pain in plaintiff’s left wrist, and on the afternoon of February 25, plaintiff called Dr. Donald R. Taylor, Wal-Mart’s company physician. Dr. Taylor noted plaintiff’s severe pain, but Dr. Taylor deferred to the opinion of Dr. Zum Brun-nen, the orthopaedic surgeon, with respect to the question of whether surgery was indicated. Dr. Taylor accordingly called Schumpert Medical Center in Shreveport and requested that an orthopedist meet the plaintiff in the Schumpert emergency room on that same afternoon, February 25. Upon arriving at Schumpert on that date, plaintiff discovered that Dr. Zum Brunnen was off for the weekend. Plaintiff then returned to the DeSoto General Hospital in Mansfield at Dr. Taylor’s request.

The following Monday, plaintiff conversed with Dr. Zum Brunnen over the telephone, advising him of her severely painful condition. On Tuesday, the next day, plaintiff was admitted into the Physicians and Surgeons Hospital, and Dr. Zum Brunnen performed surgery that same day. Wal-Mart had still not consented to the paying for this surgical treatment, and plaintiff obtained admission into the hospital only by writing a bad check payable to Physicians and Surgeons Hospital in the amount of $1,650.

The trial of plaintiffs claims was held on March 3, 1983. Plaintiff was still an in-patient at the Physicians and Surgeons Hospital on that date, was receiving periodic injections, and was only able to appear to testify pursuant to a temporary pass issued by the hospital.

The trial court awarded judgment in plaintiffs favor in a judgment filed May 20, 1983. The court awarded plaintiff total temporary disability benefits at the rate of $102.67 per week, from the date of her injury on July 8, 1982 “continuing through her period of disability.” The trial court cast defendant Wal-Mart in judgment for plaintiffs medical treatment expense, the travel expense incurred by plaintiff in obtaining treatment, and the expert witness fees of Dr. Zum Brunnen and Dr. Tucker. The trial court additionally assessed Wal-Mart for a statutory penalty on all amounts sixty days overdue, and an attorney’s fee of $5,000.

Defendant-appellant Wal-Mart contests only portions of the trial court’s judgment, and has assigned three errors. Wal-Mart first contends that-the trial court erred in awarding plaintiff total disability benefits for the period from July 8, 1982 to December 24, 1982, during which period plaintiff continued to work. Defendant does not complaint of plaintiff’s eligibility for disability benefits subsequent to December 24, 1982, continuing through the plaintiff’s disability, and this court accordingly does not consider the trial court’s award of benefits to plaintiff beyond December 24. Wal-Mart contends, under its second assignment, that the trial court erred in assessing defendant for statutory penalties. Wal-Mart urges under its third assignment that the $5,000 award of attorney’s fees was excessive. These three .assignments will be singly considered.

Assignment I.

PLAINTIFF’S ELIGIBILITY FOR TOTAL DISABILITY BENEFITS FROM JULY 8, 1982 TO DECEMBER 24, 1982.

A worker who cannot return to any gainful employment without substantial pain is totally disabled, either permanently or temporarily. LSA-R.S. 23:1221(1), (2); Martin v. H.B. Zachry Co., 424 So.2d 1002 (La.1982); Schouest v. J. Ray McDermott & Co., Inc., 411 So.2d 1042 (La.1982); Lattin v. Hica Corp., 395 So.2d 690 (La.1981); Wilson v. Ebasco Services, Inc., 393 So.2d 1248 (La.1981); Gilcrease v. J.A. Jones Construction Co., 425 So.2d 274 (La.App. 3d Cir.1982); Johnson v. Aetna Casualty & Surety Co., 422 So.2d 1187 (La.App. 1st Cir.1982), writs denied, 429 So.2d 127 (La.1983); Kilbourne v. Armstrong, 351 So.2d 802 (La.App. 1st Cir.1977).

However, although a claimant cannot perform his former or similar jobs because of substantial pain or disability, he is only partially disabled if he can perform gainful employment in another position. Thus, a worker is properly classed as partially disabled where, although he would experience substantial pain in performing his former job, he could work in other types of jobs without experiencing such pain. In short, partial disability exists where the plaintiff cannot perform the same work as before his injury because of substantial pain, but is mentally and physically capable of performing other available jobs. LSA-R.S. 23:1221(3); Lattin v. Hica Corp., supra; Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367 (La.1980); Carter v. Pitt Grill, Inc., 425 So.2d 375 (La.App. 3d Cir.1982); Harrington v. Starline, Inc., 425 So.2d 307 (La.App. 3d Cir.1982); Comeaux v. Cameron Offshore Services, Inc., 420 So.2d 1209 (La.App. 3d Cir.1982); Dupont v. Ebasco Services, Inc., 411 So.2d 605 (La.App. 4th Cir.1982); Kelly v. International Union Operating Engineers, 386 So.2d 1060 (La.App. 3d Cir.1980); Conlay v. Houston General Insurance Co., 370 So.2d 196 (La.App. 3d Cir.1979), writ granted, 371 So.2d 618 (La.1979); LeBlanc v. Commercial Union Assurance Co., 349 So.2d 1283 (La.App. 1st Cir.1977), writ refused, 351 So.2d 174 (La.1977). A claimant is therefore no longer totally disabled where he resumes work without substantial pain. Johnson v. Aetna Casualty & Surety Co., supra.

Although a claimant is deemed disabled when he cannot work without substantial pain, a claimant is not disabled within the intendment of the Worker’s Compensation Act when he merely suffers some residual pain or discomfort when attempting to work. Pain is only disabling where it is substantial. Dusang v. Henry C. Beck Builders, Inc., supra; Gautreaux v. United States Fidelity & Guaranty Co., 422 So.2d 725 (La.App. 3d Cir.1982); Brisco v. Board of Elementary and Secondary Education, 422 So.2d 667 (La.App. 3d Cir.1982). A claimant in compensation proceedings, like claimants in other civil proceedings, must prove his entitlement to a civil judgment by a preponderance of the evidence. Dusang v. Henry C. Beck Builders, Inc., supra; Gautreaux v. United States Fidelity & Guaranty Co., supra. Thus, substantial pain must be proved by a preponderance and to a reasonable certainty. Dusang v. Henry C. Beck Builders, Inc., supra; Brisco v. Board of Elementary and Secondary Education, supra.

Applying these standards to the instant facts, we find that plaintiff was totally and temporarily disabled from the date of her injury on July 8, 1982 to July 27, 1982. During this interim, there was not any work available to plaintiff which she could perform without incurring substantial pain. In attempting to discharge the manual duties associated with managing the pet department from July 8 to July 27, plaintiff — who was left-handed — was forced to rely heavily on the use of her injured left wrist. Plaintiff encountered substantial pain in performing these tasks. This fact was amply borne out by evidence that plaintiff used several types of pain killers during this interim; by the testimony of co-workers that she frequently complained of pain; by the inherent nature of the carpal tunnel syndrome present in her left wrist; and by the physically demanding nature of her chores. Moreover, supervisory chores not requiring manual labor were not available to plaintiff during the interim between July 8 and July 27. Despite previous requests by Ms. Reynolds, Wal-Mart had declined to promote her to a supervisory role, and the record does not reflect that Ms. Reynolds had either the education, experience or qualifications to attain a managerial placement elsewhere. During the period of July 8 to July 27, therefore, the only work available to plaintiff was work in which she suffered substantial pain. Thus, since plaintiff could not perform any available work without substantial pain during this period, she was totally disabled.

However, we find that between July 27 and December 24, plaintiff was only partially disabled. The finding that plaintiff was only partially disabled between July 27 and December 24 is principally predicated upon plaintiffs promotion from manager of the pet department to a checkout supervisor; whereas the former job required manual labor, the job as checkout supervisor was physically less demanding and more administrative in nature. The finding that plaintiff was partially disabled during this interim is predicated as well upon the medical findings of Dr. Zum Brunnen during this period. Dr. Zum Brunnen’s findings clearly demonstrate that the painful condition of plaintiffs left wrist was greatly alleviated from July 27 to December 24 when she was relieved of the physical duties incidental to managing the pet department. She was much improved, experiencing only residual pain and discomfort. In summary, plaintiff was prevented by substantial pain from performing her former job or similar work; however, when afforded the opportunity, plaintiff was able to perform other work with only discomfort and residual pain. Plaintiffs condition thus presents a classic instance of partial disability.

A partially disabled compensation claimant is entitled only to two-thirds of the difference between the pay he or she received prior to injury and any lesser pay he or she earns after the injury. LSA-R.S. 23:1221(3). However, upon receiving her promotion to a managerial position, plaintiff received a larger salary than she was making in the position which caused her great discomfort. Therefore, there is no “difference” since plaintiff did not earn a lesser sum; and thus no compensation is owed for this period, even though plaintiff was partially disabled for the period between July 27 and December 24.

Plaintiffs entitlement to total and temporary disability benefits subsequent to December 24 pursuant to the trial court’s judgment is not disturbed, since this entitlement has not been challenged on appeal. Moreover, plaintiffs entitlement to total disability benefits subsequent to December 24 is justified since plaintiffs left ankle injury — previously dormant — was aggravated by that time, and plaintiffs left wrist had degenerated to the point that it required surgery.

Assignment II.

PLAINTIFF’S ENTITLEMENT TO STATUTORY PENALTIES.

Wal-Mart is a self-insured employer for purposes of workers’ compensation, and its liability is therefore governed by LSA-R.S. 23:1201.2. Section 1201.2 provides that an employer’s failure to pay any claim due under the Workers’ Compensation Act — when such failure is arbitrary, capricious, or without probable cause — subjects the employer to a 12% penalty on the amount of plaintiff’s claim. In addition to disability benefits, the employer has a duty to provide medical expenses and the travel expense incurred by claimants in obtaining medical treatment. LSA-R.S. 23:1203; McElhaney v. Belden Corp., 376 So.2d 539 (La.App. 3d Cir.1979). The evaluation of an employer’s failure or refusal to discharge compensation claims is based upon the facts known to the employer at the time of such refusal or failure. See Fazande v. New Orleans Public Service, Inc., 430 So.2d 225 (La.App. 4th Cir.1983); Thibodeaux v. Dresser Industries, Inc., 407 So.2d 37 (La.App. 3d Cir.1981), writ denied, 412 So.2d 85 (La.1982). A trial court’s penalty determination is at least partially factual, and is not to be disturbed absent manifest error. Chapman v. Belden Corporation, 414 So.2d 1283 (La.App. 3d Cir.1982); Stubbs v. Parish of East Baton Rouge, 343 So.2d 258 (La.App. 1st Cir.1977), writ refused, 345 So.2d 506 (La.1977); Panebiango v. Main Insurance Co., 293 So.2d 536 (La.App. 4th Cir.1974), app. refused, 295 So.2d 814 (La.1974).

On December 30,1982, plaintiff’s counsel made a formal, written demand upon Wal-Mart for disability benefits, and medical and travel expenses. Plaintiff herself made several demands upon Wal-Mart’s compensation administrators for travel expenses. Plaintiff, her counsel, and Physicians and Surgeons Hospital all made direct requests to Wal Mart’s compensation administrators to pay for claimant’s surgery.

WabMart’s assistant store manager, who was on duty at the time of plaintiff’s injury, testified that he knew both that plaintiff had fallen on the job and that she had thereby sustained a work injury. Wal-Mart’s store manager conceded that Wal-Mart was liable under the Compensation Act for plaintiff’s claim. Dr. Taylor, Wal-Mart’s company physician, treated plaintiffs left wrist injury on 19, 1982, and on that date noted that it was causing plaintiff pain. Dr. Taylor referred claimant to Dr. Zum Brunnen on that date. Dr. Taylor examined claimant on February 25, 1983, and noted that “she reported to my office complaining of quite severe pain in the left wrist, [and] had marked swelling.” Dr. Taylor himself helped arrange for plaintiff to meet with Dr. Zum Brunnen on that date, so that Dr. Zum Brunnen could give plaintiff immediate treatment. Dr. Taylor deferred entirely to Dr. Zum Brunnen’s determination that plaintiffs condition required surgery, and did not dispute the existence of plaintiffs injury or disability.

Dr. Zum Brunnen notified Wal-Mart in writing on July 9 that plaintiff would have to miss work for several days. On July 27, Dr. Zum Brunnen notified Wal-Mart in writing that plaintiff “will either have to be put on work not using left arm or she [should] be taken completely off work.” On December 29, Dr. Zum Brunnen notifed Wal-Mart that plaintiff “is unable to work in her present condition,” and “may well ... require surgical treatment.” On January 5,1983, Dr. Zum Brunnen notified Wal-Mart that carpal tunnel surgery was indicated, and that “[s]he is unable to work in her present condition.”

Despite formal demand and Wal-Mart’s acute awareness of plaintiffs injuries, it neither investigated them nor paid plaintiffs claims. Wal-Mart expressly refused to pay for plaintiffs surgery and travel expense, and failed to pay her disability benefits. The facts adduced compel this court to conclude that the trial court correctly assessed defendant for statutory penalties.

Assignment III.

ATTORNEY’S FEES

LSA-R.S. 23:1201.2 provides for the award of attorney’s fees in instances where the employer has arbitrarily and capriciously refused to pay valid compensation claims. Wal-Mart complains under this assignment that the trial court’s award to plaintiff’s counsel of $5,000 in attorney’s fees was excessive, and constituted an abuse of discretion. Although this award may have been higher than that which would have been awarded by this court, we conclude for several reasons that this award does not represent an abuse of the trial court’s broad discretion.

It is significant that plaintiff’s counsel represented plaintiff at both the trial and appellate level, and further important that plaintiffs counsel ably represented her at both levels. It is especially pertinent that plaintiff’s counsel was working under pressing time constraints: plaintiff’s counsel was impelled to litigate plaintiff’s claims and obtain benefits as rapidly as possible so that plaintiff could obtain needed surgical treatment. Moreover, great discretion is afforded the trial court in determining the amount of attorney’s fees. Carter v. Roy O. Martin Industries, Inc., 336 So.2d 1002 (La.App.3d Cir.1976). Furthermore, similar awards have been granted and/or upheld in cases involving a comparable amount of legal work. See Antilley v. Sentry Insurance Co., 426 So.2d 1370 (La.App. 3d Cir.1983); Lastrajes v. CNA Insurance Co., 426 So.2d 741 (La. App. 3d Cir.1983); Fontenot v. Town of Kinder, 377 So.2d 554 (La.App. 3d Cir.1979), writ refused, 379 So.2d 1102 (La.1980).

SUMMARY

Thus, for the foregoing reasons we agree with the trial court in all respects except that we have determined that the plaintiff was partially disabled from July 27, 1982 to December 24, 1982 and, as such, only entitled to two-thirds of the difference between her wage at the time of injury and her wage thereafter. However, since she was making a higher wage during the period of her partial disability, she is not entitled to compensation during that period.

Therefore, the first paragraph of the judgment of the trial court ordering compensation benefits of $102.67 from July 8, 1982 through plaintiff’s period of disability is hereby amended such that the paragraph reads as follows:

“IT IS ORDERED, ADJUDGED, AND DECREED that there be judgment herein in favor of NELDA REYNOLDS and against WAL MART STORES, INC. for workmen’s compensation benefits under the Louisiana Workmen’s Compensation Statute for temporary total disability, and for partial disability, and the said WAL MART STORES, INC. is ordered to pay to NELDA REYNOLDS workmen’s compensation benefits of ONE HUNDRED TWO AND 67/100 ($102.67) DOLLARS, for each weekly period from July 8, 1982 through July 27, 1982, and from December 24, 1982, continuing through her period of disability.”

In all other respects the judgment of the trial court is affirmed at appellants’ cost.

AMENDED, and AS AMENDED, AFFIRMED.


author: JASPER E. JONES, Judge.

text:
    Charles EDWARDS, Plaintiff-Appellant, v. The HARTFORD INSURANCE COMPANY, Defendant-Appellee.
    No. 15953-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.

      Cook, Yancey, King & Galloway by Charles G. Tutt, Shreveport, for defendant-appellee.
    Ike F. Hawkins, Jr., Shreveport, for plaintiff-appellant.
    Before JASPER E. JONES, FRED W. JONES, Jr., and SEXTON, JJ.
   JASPER E. JONES, Judge.

A judgment was rendered awarding plaintiff, Charles Edwards, workers' compensation benefits for permanent scarring to his face and rejecting his claim for penalties and attorney’s fees. Plaintiff appeals the judgment insofar as it rejects his demand for penalties and attorney’s fees. The defendant, The Hartford Insurance Co., neither appealed the judgment nor answered plaintiff’s appeal.

The plaintiff, while driving a truck for defendant’s insured, was injured in an accident at approximately 3:00 p.m. on December 4, 1981 in Many, Louisiana. Plaintiff suffered extensive facial lacerations, among other injuries, in the accident. A doctor in Many referred plaintiff to Dr. Judd Chidlow, a plastic surgeon in Shreveport, for treatment of his facial injuries.

Plaintiff met Dr. Chidlow in the emergency room at Highland Hospital in Shreveport at approximately 5:30 p.m. the day of the accident. Dr. Chidlow described plaintiff as having one of the most extensive facial injuries he had ever treated. The lacerations required from 400 to 500 stitches. Dr. Chidlow gave the following description of plaintiff’s injuries in response to questions from plaintiff’s attorney in a deposition taken October 25, 1982.

Q. Could you describe the lacerations and the extent of the lacerations to his face, particularly?
A. Yes, sir, primary ones he had, about a two centimeter vertical laceration through his lower lip. He had a five centimeter laceration of the upper lip starting just at the base of the columella of the nose going all the way down to the maxilla and going out into the left cheek. The whole thing was approximately seven centimeters in diameter. The commis-sure of the left side of his mouth was completely torn out. He had -an avulsion of two centimeters defect just below and lateral left lower eyelid, which had un-derminded down on his cheek. He had a four centimeter laceration of the center of his left cheek. He had about a three centimeter laceration of the left cheek below this. He had a stellate three centimeter laceration in his tongue, the left side of the tongue. His upper alveolar, or the upper bony ridge was lacerated, actually had a fracture of the bone above the right central incisor and lateral incisor and canine tooth. He had two small lacerations on the center of his upper lip. In addition, he had a ten centimeter laceration in the left neck and shoulder, and about a five centimeter laceration of his right forearm.
Q. Now I believe that you are reading from a report that you had worked up dated December 4th?
A. That is correct.
Q. Number three on that report says, the lacerations to the upper lip. Now they started at the base of the—
A. This is the columella of the nose (indicating).
Q. That would be the mid-part of the underside of the nose?
A. Yes, sir, and it went up into the nose.
Q. And it ran from there to where? A. Well, let me read that again to clarify it. Five centimeter laceration starting — laceration to the upper lip, starting just at the base of the columella of the nose, going all of the way down to the maxilla and the bone behind that and going out into the cheek on the left side. So it went out like so (indicating).
Q. Now # 4, the avulsion injury. What did that tear out?
A. Okay, that was an avulsion of about two centimeter defect below the left lateral eyelid, just a piece of tissue was actually just gone from there. We had to swing a flap to bring a piece back to prevent his eye from being pulled down. He actually lost a piece of tissue in that area.

Dr. Chidlow answered these questions by reading from a report that he made on the date of plaintiffs accident. There is no indication in the record that defendant ever received this report.

Plaintiff was off work for approximately 7 weeks after the accident. During that period of time defendant paid him weekly benefits totalling $1,333.28. Defendant also paid plaintiffs medical expenses. When plaintiff returned to work his weekly benefit payments were terminated and he secured the services of an attorney. The attorney made numerous demands on defendant to resume paying weekly benefits to plaintiff for the scars on his face. The defendant repeatedly refused and suit was filed July 9, 1982. On October 4, 1982 defendant tendered a $5,500.00 check to plaintiff which he apparently accepted. The matter came to trial March 9, 1983.

By stipulation of the parties the only injury to plaintiff at issue in the trial was the facial scarring. At the close of the trial, the trial court awarded plaintiff $183.00 per week for 100 weeks, which is the maximum benefits that could have been awarded. Since the amount of the award is not questioned by either party, this appeal is limited to the issue of whether the trial court properly rejected plaintiffs claim for penalties and attorney’s fees.

The failure of a workers’ compensation insurer to pay a claim due within 60 days after satisfactory proof of the injury from the injured employee subjects the insurer to a statutory penalty of 12% interest and reasonable attorney’s fees where the failure to pay is found to be arbitrary, capricious or without probable cause. La. R.S. 22:658. See also R.S. 23:1201.2. The question of whether penalties and attorney’s fees will be awarded for termination of benefit payments is subject to the same arbitrary and capricious standard. See Johnson v. State Farm Mut. Auto. Ins. Co., 342 So.2d 664 (La.1977); Johnson v. Continental Ins. Companies, 410 So.2d 1058 (La.1982).

Whether or not a termination of or refusal to pay benefits is arbitrary, capricious or without probable cause depends primarily on the facts known to the insurer at the time of its action. Lee v. Smith, 248 La. 16, 176 So.2d 413 (1965); Arthur v. McConnell, 286 So.2d 499 (La.App. 2d Cir.1973); Hughes v. Webster Parish Police Jury, 414 So.2d 1353 (La.App. 2d Cir.1982); Scott v. Sears, Roebuck & Co., 406 So.2d 701 (La.App. 2d Cir.1981). The question is ultimately one of fact and the trial court’s finding should not be disturbed on appeal absent manifest error. Scott v. Sears, Roebuck & Co., supra; Kilbourne v. Armstrong, 351 So.2d 802 (La.App. 1st Cir.1977).

Defendant claims its termination of benefit payments was not arbitrary, capricious or without probable cause because the facts known by it at the time established legitimate questions as to whether any benefits were owed and if and when it became apparent that benefits were owed the amount of such benefits.

An injured employee who sustains facial scars from a job related accident may recover compensation benefits under La.R.S. 23:1221(4)(p) which provides:

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, (emphasis added)

In cases involving facial scarring this provision requires that the sears be both materially disfiguring and permanent in nature. Templet v. Travelers Insurance Company, 278 So.2d 805 (La.App. 1st Cir.1973); Dykes v. North River Insurance Company, 270 So.2d 329 (La.App. 1st Cir.1972); Addison v. Neeb Kearney & Company, 252 So.2d 471 (La.App. 4th Cir.1971).

The defendant’s adjuster, Chuck Mullís, testified that the only medical report which the defendant ever received as to the nature of plaintiffs facial scars was a report from Dr. Chidlow dated February 23,1982 which it received on March 1,1982. It stated:

“I have not seen Mr. Edwards since January 4, 1982. I do not suspect any permanent damage with the exception of scars on his face. As you noted, I did plastic surgery to repair these, but always it would be a possibility that some scar revision operations would be necessary depending on how much this bothers him. I do not think his dizziness will be permanent, and from my standpoint, he can go back to work at any time and could have at any time that his dizziness subsided to the point where he can drive his truck.” (emphasis added)

A review of the letter establishes only that the plaintiff would have some permanent scarring which would be subject to improvement by plastic surgery. The letter does not establish the nature or extent of the permanent scarring nor whether or not it would cause the plaintiff to be “seriously permanently disfigured about the face or head” in order for the scarring to be compensable within the contemplation of R.S. 23:1221(4)(p). When defendant received this letter it was placed under a duty to investigate plaintiffs claim by seeking further information from Dr. Chidlow. See Billiot v. Alton’s Bakery of Morgan City, 398 So.2d 624 (La.App. 1st Cir.1981); Self v. Riverside Companies, Inc., 382 So.2d 1037 (La.App. 2d Cir.1980); Dowden v. Liberty Mut. Ins. Co., 346 So.2d 1311 (La.App. 3d Cir.1977); Zeringue v. Fireman’s Fund American Insurance Co., 271 So.2d 613 (La.App. 1st Cir.1972); Barham v. Mathieu, 198 So.2d 145 (La.App. 1st Cir.1967).

Dr. Chidlow is the only doctor who ever examined, treated and evaluated plaintiffs facial injuries and he testified in a deposition taken on October 25, 1982 and introduced as evidence at trial on March 9, 1983 that he last examined plaintiff in January, 1982.

In this deposition the plastic surgeon described the extensive facial injuries which the plaintiff received and his repair of these injuries. He stated:

Q. Would you expect any permanent scarring in a case like that?
A. You would have some scarring, but I surely worked hard to minimize it, in procedures like this, scars after a year of time, if they are of concern to a patient, they can be revised and proved (sic).” (emphasis added)
Q. Doctor, how successful were you putting Mr. Edwards back together?
A. I think it went very well. I think it certainly is functional now there are scars that one can see, but I really have not seen this gentlemen since January— excuse me, I take that back, since I think it was approximately January of ’82, but it was healing the way that I had hoped it would be healing it at that time.
Q. And when you say you had a good result, I presume you are considering the extent of this man’s injuries?
A. Yes, I am, but also the scarring is, you know, you can look and see there. There is just not, it is just not at all, you know, hideous looking or anything like one might expect after looking at the pictures.
Q. Doctor, you mentioned that if you look close, you could see the scars, is that what you said?
A. Yes.
Q. I was trying to listen.
A. Most of them are not real obvious. There are a few now certainly that you can see, but most of them end up, you know, they were improved. I have not seen this gentlemen in nine or ten months.
Q. After sears have formed, after this period of time, are they likely to change at all?
A. Sir, it takes approximately nine months to a year for a scar to mature. Now after a year, change would be very minimal, but it can certainly change. Most of the change takes place the first three months, but it definitely can change up to about a year ...
Q. Does he have scars?
A. Yes, he does have scars.
Q. And this is around the facial area? A. Well, every area where the skin was broken, he would have a scar. Most of them are very small and I was pleased, quite pleased with the results that we were able to achieve, but there are scars.

Chidlow’s deposition along with his February 28,1982 letter establishes that he had not seen the plaintiff since one month following his facial injuries and the plastic surgery which was initially performed. At the time of this examination Dr. Chidlow stated that the surgery was very successful and most of the scars were not obvious though a few were plainly visible. He stated that you received substantial improvement in the scarring appearance during the first three months following the surgery and some improvement for a year following the surgery. He testified that the scars which remained could be further improved by later plastic surgery. He did not predict what scars would remain nor give any indication of their location or dimensions. He made no statements that the scars which would remain would seriously permanently disfigure the plaintiff about the face.

There is no evidence that the defendant sought further information from Dr. Chid-low following it’s receipt of the February 24, 1982 letter but it is reasonable that the information and lack of it contained in Chidlow’s October 1982 deposition is what defendant would have obtained on further inquiry.

From the information in defendant’s possession and that which would have been available upon further inquiry from Dr. Chidlow the trial court could have found there was a substantial question as to what additional benefits, if any, were owed to the plaintiff at the time plaintiff’s compensation was terminated.

The record does establish that the defendant received a copy of a picture of plaintiff taken by Dr. Chidlow at the time of his examination and surgery which reflected the extent of plaintiff’s facial injuries. There is evidence that the defendant adjuster requested permission to view plaintiff’s face and received this permission. We assume this interview occurred although there is no positive evidence of its occurrence in the record. There is no indication as to when the defendant received the picture and had the interview with the plaintiff.

On October 4,1981, ten months following plaintiff's facial injury the defendant paid him $5,500 which would equal 100 weeks of weekly benefit at the minimum rate.

At the trial of the case on March 9, 1983 there was no medical testimony presented as to the nature and extent of the plaintiff’s permanent scarring other than the deposition taken from Dr. Chidlow who had last seen the plaintiff in January, 1982. Attached to this deposition were four pictures taken by Dr. Chidlow on December 4, 1981 before and after the plastic surgery was performed which reflected the serious facial injuries sustained by the plaintiff. There were no pictures of the plaintiff offered to show what his face looked like at the date of trial or at any other time subsequent to the date of his accident.

Only the plaintiff and his wife testified at trial as to the scars that were then upon the plaintiff’s face. The plaintiff testified he had a scar under his left eye one inch long and later said it was two inches long. He testified he had scars adjacent to his left ear and one under his left lip that extended to his chin. Plaintiffs wife testified that the scars upon her husband’s face were the result of the accident. This non expert testimony does not accurately describe the size of plaintiff’s scars nor does it indicate to what extent they have detracted from the appearance of plaintiff’s face and caused disfigurement. There was of course no expert testimony as to the possibility of improving the existing scarring of plaintiff by further plastic surgery which was alluded to by Dr. Chidlow in his letter to the defendant of February 23, 1982 and in his deposition of October, 1982.

The plaintiff testified at trial that he had lost all of his upper teeth in the accident. The petition contained no reference to the loss of the teeth and there is no evidence in the record that the defendant was ever aware before trial that the plaintiff had lost his upper teeth in the accident.

The trial judge in his reasons for judgment dictated into the record awarded the plaintiff the maximum weekly compensation under R.S. 23:1221(4)(p) based upon the scarring and the damage to his teeth. It is therefore not clear what award the trial judge would have given the plaintiff for only the scarring upon his face which no doubt the trial judge evaluated by observing the plaintiff at the time he testified in court.

The trial judge denied penalties upon a finding of fact that the defendant didn’t know how the plaintiff’s scarring would be treated based upon the doctor’s statement. This finding necessarily refers to the fact that the permanent scarring referred to by the doctor was subject to further improvement during the 11 months following the doctor’s last examination and upon maximum improvement to further improvement by plastic surgery. The trial court in ef-feet found the defendant could not tell if the plaintiff was going to be seriously permanently disfigured at the time the defendant terminated compensation benefits.

The evidence establishes that the plaintiff had serious facial lacerations in his compensable accident but it fails to establish the extent of serious permanent disfigurement the scars resulting from these injuries created upon the plaintiff’s face. The defendant apparently concluded by October 4, 1982 that the extent of this permanent scarring was such that there would at least be some degree of disfigurement because at this time it paid the plaintiff $5,500. This factor was no doubt considered by the trial judge in his determination to deny penalties. We cannot find the trial judge was clearly wrong in finding that the defendant was not arbitrary and capricious in earlier failing to make a payment of benefits for permanent, scarring and in failing to make a larger payment to the plaintiff before the case was tried. The information available to defendant before suit was filed and before trial had left the extent of plaintiff’s scarring uncertain. The defendant was entitled to have its day in court for the purpose of determining what further worker’s compensation benefits were owed plaintiff.

AFFIRMED at appellant’s cost.

      . This check represented minimum benefits of |55.00 per week for 100 weeks. We base our statement that the check was apparently accepted on the fact that the judgment reflects a credit for this amount (see footnote 3 infra). Plaintiff has not questioned the award.

      . The judgment gives defendant a credit of 16,833.28. This figure represents the $1,333.28 paid plaintiff while he was off work and the' $5,500.00 tendered to plaintiff.

      . R.S. 22:658 provides:
      All insurers issuing any type of contract other than those specified in R.S.22:656 and 22:657 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, 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. Provided, that all losses on policies covering automobiles, trucks, motor propelled vehicles and other property against fire and theft, the amount of the penalty in each of the above cases shall be 25% and all reasonable attorney's fees.

      . The defendant also contended that if any benefits were owed that there was a question as to the number of weeks these benefits would be owed. This contention is totally without merit. The compensation period under 23:1221(4)(p) is established at 100 weeks. The trial court has no discretion to set a lower number of weeks. The trial court has discretion as to the amount of each weekly benefit to which the claimant is entitled. Odom v. Atlantic Oil Producing Co., 162 La. 556, 110 So. 754 (1926); Macaluso v. Schill-Wolfson, Inc., 56 So.2d 429 (La.App. Orleans 1952); Golden v. Starns-McConnell Lumber Corporation, 172 So.2d 78 (La.App. 1st Cir.1965); Hamilton v. Georgia Pac. Corp., 344 So.2d 400 (La.App. 1st Cir.1977). See also, Malone and Johnson, Workers’ Compensation Law and Practice, 2d ed. (1980), § 283, pp. 657-658.

      . Benefits payable under the schedules provided in 23:1221(4) are not contingent on inability to work. Cannizzaro v. Great American Insurance Company, 223 So.2d 704 (La.App. 4th Cir.1969).

      . He did not state what date in January but we note that his letter to the adjuster written February 23, 1982 stated that he last saw plaintiff January 4, 1982.

      . "... the Court is of the opinion that this man, with his scarring and his damage to his teeth, is entitled to the maximum benefits as provided by the act subject to the credits for the sums paid and with interest there on from judicial demand. I do think from the evidence here and from what the doctor’s statement was at that time, there was no denial of this man’s claim for the scarring that appears to the Court at any time. It was a matter of how severe and how the scarring would be treated. Therefore, I would deny the attorney’s fees and penalties.”


author: CUTRER, Judge.

text:
    Debra ROQUE, et ux., Plaintiffs-Appellees, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al., Defendants-Appellants.
    No. 83-428.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    Lunn, Irion, Switzer, Johnson & Salley, Julie M. Lafargue, Shreveport, for defendants-appellants.
    Thomas, Dunahoe & Gregory, Gerard F. Thomas, Jr., Natchitoches, for plaintiffs-ap-pellees.
    Before GUIDRY, CUTRER and STOKER, JJ.
   CUTRER, Judge.

This appeal presents the sole issue of the correctness of the awards made by the trial court in this suit arising out of injuries received in an automobile accident.

Debra and Joseph Roque, wife and husband, brought suit for damages against Sheena Boyd Monk and her insurer, State Farm Mutual Automobile Insurance Company (State Farm). Debra was a passenger in a pickup truck being driven by Joseph Roque, which collided with a car driven by Ms. Monk.

The trial judge rendered judgment in favor of the plaintiffs and against the defendants as follows:

To Joseph Roque
Past medical expenses $ 2,356.93
Future medical expenses 750.00
Debra’s past lost wages 4,096.00
Debra’s future lost wages 4,662.00
Total $11,864.93
To Debra Roque
General damages for pain, suffering, anguish and disability $25,000.00

On appeal, defendants challenge the award of future medical expenses and future lost wages; defendants also contend that the general damage award should be reduced from $25,000.00 to $10,000.00. For the reasons to follow, we affirm the judgment of the lower court.

FACTS

On February 5, 1982, Joseph Roque was driving his Ford pickup truck on Highway 1 in Natchitoches Parish. Passengers in the truck were Debra and the Roques’ one-year-old infant son. Ms. Monk had stopped in obedience to a stop sign controlling a road intersecting Highway 1. She then pulled out into the Roques’ lane of travel. Roque was unable to avoid the resulting collision. Both vehicles sustained heavy damage. The impact caused Debra to be hurled forward, and her head struck the windshield and “cracked it all up.”

Defendants do not challenge the trial court’s finding of liability as to Ms. Monk; rather, they contest the amount awarded for general damages ($25,000.00), future medical costs ($750.00) and future lost wages (4,662.00).

ASSESSMENT OF DAMAGES

A. General damages.

In reviewing a lower court’s determination of general damages, we are charged with honoring the “much discretion” afforded the factfinder. We may not substitute our subjective belief as to the appropriate damages due; rather the finding below is to be honored in the absence of a “clear abuse of discretion.” Reck v. Stevens, 373 So.2d 498 (La.1979); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Launey v. Thomas, 379 So.2d 27 (La.App. 3rd Cir.1979), writ den., 381 So.2d 1233 (La.1980). Although it appears that the $25,000.00 award is somewhat high, we cannot find that that amount is a clear abuse of the trial court’s much discretion. See McGrath v. Industrial Piping Co., 340 So.2d 1037 (La.App. 1st Cir.1976).

The facts reveal that Debra began feeling dizzy shortly after her head struck the windshield. Becoming frightened by her physical manifestations of dizziness and a general soreness over her body, the plaintiff promptly (within 45 minutes after the accident) went to the emergency room of a local hospital where she requested to see the first doctor available. The examining physician, Dr. Robert Sills, opined that Debra had suffered “an acute muscle sprain of the posterior neck, left side and a low back muscle sprain.” He also prescribed medication for plaintiff’s pain and advised her to report for further treatment within three days.

The accident occurred on a Friday, and the plaintiff was bedridden for the next two days. She returned to Dr. Sills’ office on Monday, but transferred to Dr. Joseph Thomas the next day. Dr. Thomas noted that the plaintiff had “severe pains in her neck and pains in the top of her head and forehead and left ear.” It was his opinion that Debra “was suffering from a contusion of the head and a myoligamentous sprain of the cervical spine.” He deemed the sprain to be “severe.”

Dr. Thomas prescribed muscle relaxers, pain pills and physical therapy for Debra’s condition. From the time of the accident until the date of trial in January 1983, the plaintiff received more than sixty treatments of physical therapy. Debra’s physical pain and discomfort resulted in her missing almost three consecutive months of work.

She was twenty-nine years of age at the time and employed in a secretarial position. Dr. Thomas provided a “temporary release” for Debra to return to her work on April 29, 1982. He testified that the release was temporary in order to determine if Debra could return to her regular routine. The plaintiff returned to her duties on a full time basis in early May 1982, but she continued to suffer pains in her neck and lower back. Debra testified that her back would bother her after she sat in a typing position for a period of time. She also testified that, when she returned to her home in the evening, her pain would worsen.

Although Dr. Thomas wrote plaintiffs attorney on June 1, 1982, indicating that the plaintiff was “maximally improved,” he continued to see Debra and on July 8, 1982, prescribed that she work on a reduced schedule. At trial Dr. Thomas testified that additional hours of work beyond halftime “caused [plaintiff] to have increased symptoms of pain and disability in her back and neck.” Dr. Thomas also stated that the plaintiff desired to return to her work full time, but he did not feel that her injuries would allow her to do so.

Debra was examined by Dr. Thomas four days prior to the day of trial and nearly one year after her accident. That examination revealed that the plaintiff was still suffering “mild to moderate spasms in the trapez-ius and spinal erector muscles.”

Testimony from Joseph, Debra and from Beverly Radial, the Roques’ neighbor, established that the plaintiff had been in excellent health and very active prior to the accident. She had been continuously employed since her late teens in secretarial jobs, and she also went to dances with her husband and bowled on a weekly basis. The plaintiff had twiced tried to bowl again after the accident, but she was unable to do so. She was subsequently forced to resign her membership in a league bowling team.

The testimony also indicated that the plaintiff was no longer able to work in the yard with her husband and that her housekeeping had seriously deteriorated. When she returned home from work, her back would be hurting such that she often went directly to bed. Ms. Rachel testified that Debra could not handle her young son as she once could, because of her back pains. At the time of trial, the plaintiff was still taking muscle relaxers and pain pills, and she was continuing with a limited number of her physical therapy sessions.

The defense produced no witnesses to rebut the plaintiffs evidence. The only defense evidence as to the plaintiffs injuries was a letter written by Dr. Baer Ram-bach, an orthopaedic surgeon who examined Debra once on October 19, 1982. Dr. Rambach observed tenderness to the touch in the areas of the plaintiffs lower back and left shoulder. He also observed that she had a slightly limited restriction in raising her legs from certain positions. No evidence was found of nerve root damage or of bone fractures of any nature. Dr. Rambach’s diagnosis of sprain to the lower back and cervical region was consistent with those provided by Drs. Sills and Thomas. He opined that Debra should be able to treat her symptoms with mild analgesics, and he felt that she should not be left with any “permanent residuals from the injuries she sustained.”

When questioned regarding Debra’s future pain and the treatment necessary to alleviate her problems, Dr. Thomas provided the following answers:

“Q. Based upon your having followed this lady, and she’s almost a year since this accident happened, can you give Judge Cunningham an estimate or any idea as to if or when she will be able to return to full-time employment?
A. Well, these situations vary from individual to individual, and from incident to incident. I felt that she should have by now reached the point to where she would be completely free of symptoms except maybe when you’d have bad weather. But this lady continues whether the weather’s bad or whether it’s good, and she continues to have pain in her back and her neck when she pursues her activities beyond a certain point. Half-time was determined in her case. How long this is going to last I don’t have the slightest idea. Some people recover; some people develop a chronicity in this type of injury which persists for months and even years.
* * * * * *
Q. You think she’ll have to continue on a part-time work schedule?
A.I would think so, yes, sir.
Q. Do you attribute her present and all of the problems that you have handled since she was injured in the automobile accident, do you attribute that to the automobile accident that she was in?
A. Yes, sir.
Q. Do you have any other history of any problems, either pre-dating the automobile accident or any new accidents that have happened, since that automobile accident happened?
A. No, sir.
Q. Do you feel that she will continue to need medical care?
A. She’s going to continue to need medication and I think she’s going to continue to need therapy to the muscle structures and soft tissues in her back and neck. I think these can be ordered on an ongoing basis without her having to be seen by a physician until such time as she becomes free of symptoms.
Q. Do you think she periodically needs to have physiotherapy?
A. Yes, sir.
Q. Can you give us an estimate of how long that should continue?
A. No, sir. I couldn’t.
Q. Do you think she will continue to need medications for pain and muscle relaxers and things of that nature?
A. Yeah, I do. Yes, sir.”

In light of the medical and lay testimony indicating that the plaintiff had suffered debilitating pain for one year and that she would continue to experience pain until an undetermined point in the future, we cannot say that the trial court abused his much discretion in awarding Debra $25,-000.00 in general damages.

B. Future medical expenses.

Defendants argue that the trial court’s award of $750.00 for future medical expenses for Debra is excessive. We disagree.

In less than one year prior to trial the plaintiff incurred medical expenses in the amount of $2,185.93. Although he could not estimate the period necessary for Debra to recover completely, Dr. Thomas did testify that she would require further medication and physical therapy treatments, the latter on a less frequent basis with the passage of time. Under these facts we do not find that a $750.00 award for future medical expenses was an abuse of discretion.

C. Future lost wages.

The trial court awarded $4,662.00 for Debra’s future lost wages. In his brief reasons for judgment, the trial judge indicated that he reached this figure by allowing Debra $388.50 per month in lost wages for a period of twelve months. We cannot say that the trial court was clearly wrong in this conclusion. Because of Dr. Thomas’ testimony that Debra’s infirmities could conceivably continue for months or years, we are not willing to disturb the lower court’s determination of twelve months as being an appropriate period in which to make an award for lost future wages.

For these reasons we affirm the judgment of the trial court. Costs of this appeal are assessed against the defendants-appellants.

AFFIRMED.

      . State Farm's liability is limited to its policy limits of $25,000.00.

      . Debra testified that she stopped seeing Dr. Sills because of the long office delays involved and that Dr. Thomas had been her doctor on prior occasions.

      . This examination occurred three months prior to trial. Dr. Thomas, who testified at trial, had seen the plaintiff at least three times since her singular visit to Dr. Rambach.

      . The breakdown of those expenses is as follows:
      Physical therapy treatments $1,368.00
      Dr. Thomas’ services 670.00
      Drug bills 147.93

      . Dr. Thomas did not rule out the possibility that the plaintiff could continue to suffer for months or years.


author: YELVERTON, Judge.

text:
    SUCCESSION OF Knowles TUCKER.
    No. 83-948.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    Writ Denied April 2, 1984.
    Roy, Forrest & Lopresto, Leon E. Roy, Jr., New Iberia, for defendant-appellant.
    Louis C. Guillot, New Iberia, Keith A. States, Lafayette, for plaintiff-appellee.
    Before FORET, YELVERTON and KNOLL, JJ.
   YELVERTON, Judge.

Plaintiff, Aline Segura Tucker, brought this suit against the Succession of Knowles Tucker seeking to have the retirement benefits due from the District Attorney’s Retirement System following Mr. Tucker’s retirement, but prior to his death, recognized as an asset of the community formerly existing between the plaintiff and the deceased. From a judgment in favor of the plaintiff awarding her 28.625% of the benefits received by Mr. Tucker prior to his death, the Succession, represented by Vivian Tucker, the testamentary executrix, appeals. We affirm.

The main issues presented by this appeal are (1) whether the trial court erred in determining that the retirement benefits were an unpartitioned asset of the former community and (2) whether the trial court erred in failing to maintain the defendant’s Exceptions of Liberative and Acquisitive Prescription.

The parties stipulated the basic facts as follows:

“1.
“Plaintiff and KNOWLES M. TUCKER, were married in the Parish of Iberia, State of Louisiana, on September 1, 1938.
“2.
“On December 22, 1967, a Judgment of Separation from Bed and Board was rendered in the 16th Judicial District Court in and for Iberia Parish, dissolving the community acquets and gains existing between plaintiff and the said KNOWLES M. TUCKER, in proceedings bearing Civil Docket Number 27194, the original petition for separation having been filed on October 16, 1967.
“3.
“On January 1, 1954, the said KNOWLES M. TUCKER, took the Oath of Office of the office of Assistant District Attorney of the 16th Judicial District, State of Louisiana, and thereafter remained an Assistant District Attorney in said parish, until January 1, 1958.
“4.
“On January 10, 1958, the said KNOWLES M. TUCKER, took the oath of the office of District Attorney of the 16th Judicial District, Parishes of Iberia, St. Martin, and St. Mary, State of Louisiana, and thereafter remained the District Attorney in said parishes, without interruption, until his retirement in or about September 1, 1981.
“5.
“The said KNOWLES M. TUCKER, honorably served in active federal service in the Army of the United Stated (sic) from April 23, 1943 to July 1, 1946, a period of Three (3) years, Two (2) months, Fourteen (14) days, having entered the said armed forces during World War II.
“6.
„ “A written partition and settlement of community was executed by ALINE SEGURA TUCKER and KNOWLES M. TUCKER by an instrument dated December 22, 1967, duly recorded as original Act # 141555 of the official records of the Parish of Iberia, State of Louisiana, as per reference to copy of said partition and settlement of community attached hereto and made a part hereof.
“7.
“KNOWLES M. TUCKER was a member of the District Attorneys’ Retirement System and had total creditable service in said system as of date of retirement of 32.75 years.
“8.
“The portion of the total creditable service of the said KNOWLES M. TUCKER in the said District Attorneys’ Retirement System attributable to creditable service during the community of acquets and gains formerly existing between ALINE SEGURA TUCKER and KNOWLES M. TUCKER is stipulated to be 18.75 years.
“9.
“Commencing September 1, 1981, the said KNOWLES M. TUCKER retired and received retirement benefits from the District Attorneys’ Retirement System of TWO THOUSAND ONE HUNDRED TWENTY TWO AND 56/100 ($2,122.56) DOLLARS per month commencing that date, continuing on the first of each month thereafter through the date of his death, for a total of TWELVE THOUSAND SEVEN HUNDRED' THIRTY FIVE AND 36/100 ($12,735.36) DOLLARS received by the said KNOWLES M. TUCKER.”

We conclude, as did the trial court, that the retirement benefits should be classified as community property. In T.L. James & Co., Inc. v. Montgomery, 332 So.2d 834 (La.1975) the Supreme Court clearly set forth the guidelines to be followed in determining the community’s interest, if any, in deferred compensation plans, be they public or private. The Supreme Court on rehearing stated as follows:

2. Each contribution of the employer to the funds entitles the employee or his beneficiary to share subsequently in the funds’ proceeds; when made during the community, the property right to share ultimately in the proceeds thereby acquired by the wage earner, is “acquire[d ] during the marriage”, Civil Code Article 2402 and is thus a community asset. Civil Code Article 2334; Messersmith v. Messersmith, 229 La. 495, 86 So.2d 169 (1956). Therefore, the value of the right to share proportionately in the fund, which right is contractually acquired by virtue of each contribution, falls into the community during which the contribution is made; for by each contribution, when made, the employee (or his beneficiary or estate) has acquired a right to share pro rata in the proceeds ultimately payable from the funds to the employee or his contractual beneficiary or his estate.
3. The value of the right to share in the retirement and profit-sharing funds is an incorporeal, movable right. When acquired during the existence of a marriage, the right-to-share is a community asset which, at the dissolution of the community, must be so classified — even though at the time acquired or at the time of dissolution of a community, the right has no marketable or redeemable cash value, and even though the contractual right to receive money or other benefits is due in the future and is contingent upon the happening of an event at an uncertain time. Messersmith v. Messersmith, 229 La. 495, 86 So.2d 169, 174-75 (1956). When a community is dissolved, the employee’s spouse is thus entitled to be recognized as the owner of one-half the value of the right-to-share, insofar as attributable to the contributions paid into the fund as deferred compensation to the employee during the existence of the community (i.e., even though it may not by the contract be payable at that time).2 Id.; Laffitte v. Laffitte, 253 So.2d 120 (La.App. 2d Cir.1971), noted 33 La.L.Rev. 222-23 (1973). However, when the proceeds do become payable under the contract to the employee or his beneficiary or estate, the spouse is entitled at that time to receive payment as owner of her share of the proceeds, based upon the value of the right-to-share acquired during the community formerly existing between her and the wage earner.
4.For the reasons more fully set forth in our original opinion, we are unwilling to extend by analogy the principles applicable to the purchase of life insurance policies to the acquisition of community interests in retirement or profit-sharing funds such as those at issue. Jurisprudentially, as confirmed legislatively, life insurance interests are treated sui generis as an exception to the usual rules of acquisition of property interests during a community.3 (footnotes omitted)

In Thrash v. Thrash, 387 So.2d 21 (La.App. 3rd Cir.1980), writ denied 393 So.2d 745 (La.1980) this court faced the issue of whether the benefits acquired during the marriage in a public retirement system were community property. Relying on the rationale of Montgomery, supra, this court determined that the divorced husband was entitled to a one-half interest in that portion of the wife’s state teachers retirement benefits acquired during the marriage calculated as follows:

Portion of Pension attributable to creditable service during existence x ⅛⅛ x monthly annuity of community_
Pension attributable to total creditable service

The court held that the ex-husband was entitled to the percentage calculated by the above formula of every pension check that the ex-wife had received since the dissolution of the marriage and would receive thereafter.

In the present case the deceased husband had a total creditable service in the District Attorney’s Retirement System of 32.75 years. The portion of pension attributable to creditable service during the existence of the community was 18.75 years. The deceased husband received $12,735.36 in retirement benefits prior to his death.' We find that the trial court correctly held that the retirement benefits were a community asset and properly calculated the ex-wife’s community interest in the acquired benefits as follows:

“Portion of pension attributable to creditable service during existence of community (18.75 years) Pension attributable to total creditable service (32.75 years)”
= 57.25% x ½ x 12,735.36 = 3,645.49

As an additional argument, appellant contends that plaintiff lost whatever rights to the retirement she may have had when she executed the partition in 1967. Specifically, it is contended that plaintiff waived her rights to seek such benefits by the release of her ex-husband in the partition. This argument relies on the following language in the partition:

“Each of the parties hereto do hereby give unto each other a full, final and complete receipt and release from any and all claims which they may have against each other or against the community of acquets and gains.”

The partition agreement does not mention retirement contributions or benefits. The undisputed testimony at trial revealed that rights with respect to retirement were not considered by the parties at the time the partition was made and.these rights were not included in the agreement. The partition agreement fails to contain any clause which would transfer to one spouse the other’s interest in the retirement benefits, or rights to any other unspecified thing. The above clause does not purport to transfer to either ex-spouse the other’s interest in unspecified property.

Under these facts we find that the partition agreement does not have the effect of transferring either spouse’s interest in the retirement benefits to the other spouse, and that each spouse continued to be owner of one-half the value of the right-to-share in the retirement benefits insofar as attributable to the contributions paid into the fund as deferred compensation to the employee during the existence of the community.

LSA-C.C. art. 1308 provides that an action of partition lies between all persons who hold property in common. LSA-C.C. art. 1401 provides that the mere omission of a thing from the partition is not ground for rescission, but simply for a supplementary partition. The plaintiff here asks for nothing more than a supplementary partition of a community asset omitted from the original community property settlement through mutual oversight. See Moon v. Moon, 345 So.2d 168 (La.App. 3rd Cir.1977), writs refused 347 So.2d 250 (La.1977), where the pension was omitted from the settlement list because both parties thought it was separate property. We do not interpret the clause in the partition agreement as a waiver of the plaintiff’s right to seek a supplemental partition of an omitted asset which was never considered by the parties at the time of the original agreement. Therefore, the plaintiff has the right to ask for a supplemental partition under C.C. art. 1401.

Finally, the appellant argues that the trial court erred in failing to maintain the defendant’s Exceptions of Liberative and Acquisitive Prescription. We disagree.

In Rasbury v. Baudier, 370 So.2d 659 (La.App. 4th Cir.1979) the divorced wife appealed from the dismissal of her action for a supplemental partition of her ex-husband’s military pension on the exception of prescription. In that case the military pension benefits were not expressly mentioned in the original partition of their community property. In finding the exception of liber-ative prescription incorrectly maintained the appellate court stated:

“If, on the contrary, the original partition did not include the disputed item, then neither ex-spouse has succeeded to the other ex-spouse’s interest in the item. The item would therefore remain co-owned by the two ex-spouses, and an action by a co-owner for a partition is never prescribed; C.C. 1304.” (emphasis added)

In the present case we have found that the partition agreement did not transfer either party’s rights or interests in the retirement benefits to the other party. Neither party has succeeded to the ex-spouse’s interest. Therefore, the action by the plaintiff co-owner for a partition has not prescribed either by liberative or acquisitive prescription. C.C. art. 1304.

For the above reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


text:
    Aline Segura TUCKER, Plaintiff-Appellee, v. DISTRICT ATTORNEY’S RETIREMENT SYSTEM, et al., Defendants-Appellants.
    No. 83-440.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    Writs Denied April 2, 1984.

      Jackson B. Bolinger of Roy, Forrest & Lopresto, New Iberia, William C. Toadvin, Staff Atty., Baton Rouge, for defendants-appellants.
    Keith A. States, Lafayette, for plaintiff-appellee.
    Before FORET, YELVERTON and KNOLL, JJ.
   YELVERTON, Judge.

Aline Segura Tucker, the first wife of the deceased Knowles Tucker, brought this suit against the District Attorney’s Retirement System and Vivian Crowson Tucker, the deceased’s second wife. The suit seeks to have a portion of the retirement benefits received by the second wife as beneficiary recognized as an asset of the community formerly existing between the plaintiff and the deceased. The suit asks for judgment against Vivian Tucker for plaintiff’s share of the retirement benefits already received, as well as a judgment ordering Vivian Tucker to pay to plaintiff the latter’s share of monthly benefits that would be received after date of judicial demand.

Before trial the District Attorney’s Retirement System was dismissed as a party defendant. The trial court rendered judgment declaring the retirement benefits in the hands of the beneficiary an unparti-tioned asset of the former community between plaintiff and the deceased. The court then declared plaintiff the owner of 28.625% ($5,468.24) of the total amount of benefits received by Vivian Tucker through November 1, 1982 (the trial was November 23, 1982) together with legal interest. Finally, the judgment ordered Vivian Tucker to pay to plaintiff 28.625% of each monthly beneficiary check as received, commencing December 1, 1982, and continuing for the remainder of the life of Vivian Crowson Tucker. At the time of judgment 28.625% of Vivian Tucker’s monthly beneficiary check was $607.58. The defendant-beneficiary appeals. Except for a minor amendment to correct the award of interest on the judgment, we affirm.

The pertinent facts were stipulated by the parties as follows: The plaintiff and Knowles Tucker were married on September 1, 1938, and judicially separated on December 22, 1967. Knowles Tucker was a member of the District Attorney’s Retirement System and had a total creditable service in the system as of the date of his retirement of 32.75 years. The portion of total creditable service attributable to creditable service during the community of ac-quets and gains formerly existing between the plaintiff and deceased was 18.75 years. On September 1, 1981, Knowles Tucker retired and began receiving retirement benefits of $2,122.56 per month. Knowles Tucker designated Vivian Tucker as his beneficiary under the retirement plan. On February 19, 1982, Knowles Tucker died. Commencing March 1, 1982, Vivian Tucker began receiving the benefits in the sum of $2,122.56 per month. The present suit was filed on March 9, 1982. The defendant received a total of $19,103.04 in benefits through November 1982.

The main issues presented by this appeal are (1) whether the trial court erred in determining that the retirement benefits were an unpartitioned asset of the former community and (2) whether the trial court erred in failing to maintain the defendant’s Exception of Prescription.

This court in another opinion rendered today entitled Succession of Tucker, 445 So.2d 510 (La.App. 3rd Cir.1984) determined that the retirement benefits received by Knowles Tucker prior to his death were an unpartitioned asset of the former community existing between the plaintiff and the deceased and that the action by the plaintiff to partition the previously omitted asset from the prior community property settlement agreement had not prescribed.

On the basis of that decision we find that the trial court was correct in finding that the retirement benefits of Knowles Tucker from the District Attorney’s Retirement System was an unparti-tioned asset of the former community of Aline Tucker and Knowles Tucker, and that her action for partition has not prescribed.

The appellant also argues that the plaintiff does not have the right to seek an accounting against the beneficiary of the retirement benefits. We disagree. In T.L. James & Co., Inc. v. Montgomery, 332 So.2d 834 (La.1975) the Supreme Court, on rehearing, held that “although the contractual beneficiary may receive in full ownership the share of the funds passing to him by virtue of the decedent’s contractual designation of him as beneficiary, he does so with the obligation to account to any complaining forced heir or spouse in community if his receipt of proceeds violates either the former’s legitime or the latter’s community ownership rights...” Aline Tucker has the right to seek an accounting.

The trial court framed its judgment to provide for two time periods: the period before trial (November 23, 1982) and the period after trial. The benefit checks were received by the beneficiary on the first day of each month. She began receiving checks on March 1, 1982. Legal interest was awarded on the sums owed to plaintiff and received by Vivian Tucker beginning March 1, 1982, through November 1, 1982, the interest to be calculated from the date each monthly payment was received. Since suit was filed almost simultaneously with receipt of the first payment, this interest award was proper.

The trial court also awarded legal interest on sums owed to the plaintiff from and after December 1, 1982, the interest to be calculated on each monthly pension from the date of its receipt by the defendant until paid over to plaintiff. 'We shall eliminate this interest award from the judgment. It was not correct to award interest on future sums not owed as of the date of trial, since the latter award of interest was premature and not the subject of this suit.

For the reasons assigned, the judgmental provision awarding interest on plaintiff’s share of sums to be received after trial (December 1, 1982, and thereafter) is eliminated. The judgment is affirmed in all other respects at defendant’s cost.

AMENDED AND AFFIRMED.