text:
    Sherlyn Dixon LONG, Plaintiff-Appellant, v. MOSES MOTOR HOTEL, INC. and Insurance Company of North America, Defendants-Appellees.
    No. 16689-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.

      Bruscato, Loomis, & Street by C. Daniel Street, Monroe, for plaintiff-appellant.
    Hayes, Harkey, Smith & Cascio by Thomas M. Hayes, III, Monroe, for defendants-appellees.
    Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   HALL, Judge.

In this worker’s compensation case, the appellant, Sherlyn Dixon Long, is appealing the trial court’s finding that appellant failed to sustain her burden of proving a work-related accident causing disability. Because we find appellant carried her burden, the trial court’s judgment is reversed.

The Factual Setting

On Wednesday, July 13, 1983, appellant was working at a Monroe motel where she had been employed as a maid for about a year. She worked mornings and usually left work between 1:00 p.m. and 2:00 p.m. each day. On the day of her injury, at approximately 12:45 in the afternoon, she was cleaning the next to last room assigned to her. According to her testimony, she was pushing a dresser back into place after having moved it away from the wall to clean behind it, when she felt a tingling sensation in her right shoulder. She did not stop her work at this point, but moved a bed away from the wall to vacuum under it when she felt a stronger tingling sensation in her shoulder as well as in her lower back. At this point she became alarmed, leaned against the bed, and called for help. When none came, she walked across the courtyard and asked another maid to help her replace the bed. Apparently, the maids were not supposed to move the furniture themselves, but appellant had done so in this instance. Appellant testified that she told the other maid that she hurt her back, but the other maid remembered appellant saying that she hurt her toe. After the bed was replaced, appellant went directly to her supervisor, Mrs. Marie Hall, and told her that she had injured her back. Although Mrs. Hall admitted that appellant reported a back injury, Mrs. Hall testified that she was unaware of the seriousness of the complaint because appellant did not act like she was really hurt. Appellant testified that after talking to Mrs. Hall, she went into a nearby room, called the receptionist, and asked her to place an outside call to appellant’s home. When no one answered at home, appellant asked the receptionist to call appellant’s sister at work. Although the sister was contacted, she could not leave her job. Appellant testified that at this point she was getting upset and called the receptionist again, this time telling her that she had hurt her back and needed someone to come get her. The receptionist told her not to get upset, and tried to call appellant’s home again. This time appellant’s husband answered and agreed to come pick his wife up at the motel. Appellant then went to the front of the motel, where the receptionist worked, to wait for her husband.

The receptionist no longer worked at the motel at the time of trial and was unavailable to corroborate appellant’s testimony. However, appellant admitted that she did not tell anyone else at the motel of her injury before she was picked up by her husband a short time later. Mrs. Hall testified that the maids, including appellant, walked to the front of the motel together since their work was completed. Appellant did not recall whether Mrs. Hall was correct on this point.

Appellant’s husband testified that he went to pick up his wife as soon as she called him and informed him of her accident. When he arrived at the motel, appellant told him she was having pain in her back and shoulder. Since they had no money, and already had unpaid medical bills, appellant’s husband testified that he did not know what action to take. Appellant had never been injured on the job before, had never filed a worker’s compensation claim, and was unfamiliar with the worker’s compensation laws. The husband decided to seek the advice of an attorney with whom he was acquainted, and whose office was only a few blocks from the motel. The attorney suggested that appellant see a physician, and recommended a Dr. Chin. Appellant went to see the doctor immediately after leaving the attorney’s office, but was turned away because she had no money. Appellant received no medical treatment that day, and testified to difficulty in sleeping that night.

The next morning, Thursday, July 14, appellant called her supervisor, Mrs. Hall, to tell her she would not be coming in to work. Appellant did not mention her injury at that time, nor did Mrs. Hall inquire as to the reason appellant was not coming to work. Mrs. Hall called back later that morning to find out if appellant had arranged for a replacement, and talked to appellant’s husband. The testimony was conflicting as to whether injury was mentioned; Mrs. Hall said no injury was mentioned, while Mr. Long said he told Mrs. Hall that his wife had hurt her back and that he had to take her to the doctor. Mrs. Hall testified that she told Mr. Owen Moses, the proprietor of the motel, of appellant’s claimed injury that same morning because Mr. Moses had not been at the motel on the day of the accident. Later Mrs. Hall changed her testimony to say that she told Mr. Moses of the injury on Friday morning, and that on Thursday she only told him that appellant was not coming to work. In their conversation on Thursday, Mr. Moses told Mrs. Hall to let appellant go from her job as a maid. Mrs. Hall then called appellant that evening and informed her that she was fired. The injury was not discussed in this conversation. Prior to this conversation, appellant had again sought medical treatment unsuccessfully.

On Friday, July 15, appellant was successful in obtaining treatment for her problems. She went to see Dr. Webb, a chiropractor, at the suggestion of her attorney. Dr. Webb testified that appellant was having severe pain in her right shoulder as well as lower back pain, that appellant’s shoulder muscles were extremely spasmodic, and that his assistant had to help appellant change into a gown to have X rays made. Dr. Webb also testified that there was obvious swelling along the body of the trapezius muscle. After treating appellant, Dr. Webb placed her arm in a sling.

After leaving Dr. Webb’s office appellant went to the motel to pick her weekly paycheck as well as her vacation check. She testified that she saw Mr. Moses at the motel, but did not mention her injury because she assumed he had been told by Mrs. Hall. Mr. Moses stated that he did not remember appellant’s arm being in a sling. However, both appellant and Judy Huff, who drove appellant to the chiropractor and to the motel, testified that appellant was wearing the sling, and that Mr. Moses could see it. Mr. Moses did not inquire about appellant’s arm or about appellant’s absence from work, and did not discuss her termination from employment. Mr. Moses testified that he first learned of appellant’s injury when Dr. Webb called him about responsibility for payment of medical bills later that day.

Despite her injury, appellant and her husband did not cancel a planned vacation trip to Las Vegas which began on July 21, 1983. However, appellant testified she did not do any of the driving on the trip, and did not drive an automobile at all until late September 1983.

Appellant saw Dr. Webb a total of 31 times during a treatment period beginning in July 1983 and ending in January 1984. During this period Dr. Webb performed both chiropractic manipulations and chiropractic adjunctive therapy. The adjunctive therapy mainly consisted of different forms of physical therapy including application of moist heat, application of cold, traction, and electrical stimulation. During part of the treatment period, appellant was given a cervical support, and during another part of the period was fitted with a lumbosacral support.

On August 31, 1983, at the request of appellee, appellant was examined by Dr. Douglas Brown, an orthopedic surgeon. Dr. Brown diagnosed appellant as having a lumbar strain as well as right rhomboid fibrositis, an inflammation of the muscles attached to the shoulder blade. Dr. Brown saw no reason why appellant could not return to work doing light duty if she wore a lumbosacral corset. In contrast, Dr. Webb felt appellant might be able to do some light duty work at the end of October 1983, but did not release appellant as fully recovered until January 11, 1984. Dr. Webb found appellant still had some complaints as late as November 28, 1983, and felt some time off beyond that date was warranted to prevent reinjury.

The Work-Related Injury

Although the trial court correctly observed that the jurisprudence favors a liberal interpretation of the law in favor of workers, and that ignorance of the refinements of reporting and asserting claims is understandable and excusable, the court went on to find that the facts of this case presented unusual and serious circumstances inconsistent with the accident and injury presented:

“The only single corroborating bit of evidence from any other person at the motel on the day of the alleged accident was the admission by the supervisor of plaintiff’s somewhat casual remark about hurting her back, but that fact is totally inconsistent with her complaint of a toe injury to another employee, all of her later actions before leaving work, her telephone conversations with the supervisor the next day, her visit with the manager to pick up her checks, and, above all, the very severe shoulder injury observed by the chiropractor the next day. Moreover, the decision to go directly to a lawyer upon leaving work and the vacation trip previously planned seem highly unusual in comparison with the testimony of plaintiff and chiropractor concerning the injuries.
“While it is not unusual for back injuries to develop slowly and progress in degree, and while this is the general picture given by the chiropractor about the back in the instant case, that picture is totally different from plaintiff’s description. She would have the Court conclude that the back injury manifested itself instantaneously with such severity that she was obliged to recline, then get help replacing the bed, then abandon her work and seek immediate medical help. If these were the facts and she were in obvious distress, it would seem that even a lay person would ask for employer assistance; and the record contains no evidence to support a conclusion that it would have been refused if so presented.
“A strain or sprain of shoulder muscles also frequently develops slowly into more severe symptoms following relatively minor ones at the time of injury. But here, the findings and opinions of the chiropractor the very next day are inconsistent with the plaintiffs testimony and actions relating to the accident and back complaints the previous day. Further, it seems incredible that such an injury and such symptoms could suddenly become manifest some 24 hours after an accident in which original symptoms were described only as a tingling in the arm and never mentioned to anyone else.”

The trial court’s reasons indicate that in practically all cases where inconsistent or conflicting testimony was presented, the trial court favored the testimony of appellee’s witnesses. Nevertheless, all conflicting testimony aside, certain facts were established by uncontradicted evidence. First, the fact that appellant was moving furniture at the motel at the time in question is undisputed. Second, there is no dispute over the fact that appellant immediately reported her injury to her supervisor, and a short while later to her husband and to her attorney. Third, appellant not only sought medical treatment that same afternoon, but also sought treatment on the following days until treatment was obtained. Fourth, the findings of both the chiropractor and the orthopedic surgeon who examined appellant established that she did sustain injury to both her shoulder and her back. These findings were based not only upon appellant’s complaints, but also upon objective signs and symptoms. Finally, no evidence was presented establishing any intervening cause for appellant’s injuries.

The evidence outlined is sufficient to establish an injury caused by an accident occurring at work. Absent proof of any intervening cause, appellant’s injuries are presumed to have been the result of the accident since before the accident the appellant was in good health, symptoms of her disabling condition commenced at the time of the accident and continuously manifested themselves thereafter, and the medical evidence shows a reasonable possibility of a causal connection between the accident and the disabling condition. Robertson v. Scanio Produce, 449 So.2d 459 (La.1984); Lucas v. Insurance Company of North America, 342 So.2d 591 (La.1977).

Because this case is not one suggesting intervening causes for an obvious disability, or one presenting evidence of such slight injury as to make disability questionable, the only way the inconsistencies noted by the trial court could defeat appellant’s claim would be to so substantially undermine the credibility of the un-contradicted evidence as to indicate that appellant’s injury was feigned, or at least grossly exaggerated. As this court stated in Williams v. Bituminous Casualty Corporation, 131 So.2d 844 (La.App. 2d Cir. 1961):

“The principle that courts will stigmatize a claimant as a malingerer only upon positive and convincing evidence justifying such conclusion is so well embedded in our jurisprudence as to preclude the necessity for specific citations. (Emphasis added).”

See also Caston v. Combined Insurance Company of America, 308 So.2d 287 (La.App. 1st Cir.1975).

While the inconsistencies noted are sufficient to create some suspicion, they do not provide the positive and convincing evidence necessary to defeat appellant’s claim. The judgment of the trial court, finding that appellant failed to sustain her burden of proving a work-related accident causing disability is erroneous and must be reversed.

Appellant’s Award

Appellant did not return to work until released by Dr. Webb on January 11, 1984. However, appellee contends that any worker’s compensation payments due should be awarded only from July 13, 1983, the date of injury, to August 31, 1983, the date Dr. Brown indicated he felt appellant could return to light duty with the aid of a lumbosacral corset. We find that the lum-bosacral corset, a device which restricts any bending of the back, and forces an individual to bend at the knees or hips, would have been impractical and burdensome in light of appellant’s job which requires a great deal of stooping and bending. Appellant’s disability continued until she was released by Dr. Webb and returned to work, and she is entitled to benefits from the date of the accident to that time.

Thus, appellant shall be awarded $1,586 in worker’s compensation benefits for the period of July 13,1983 through January 11, 1984, together with legal interest. This amount is based upon a minimum compensation rate of $61 per week. Appellant is also entitled to compensation for medical bills in the amount of $2,141.20 as prayed for by appellant, together with legal interest.

The inconsistencies noted by the trial court, although insufficient to defeat appellant’s claim, are suspicious and are substantial enough to defeat appellant’s claim for penalties and attorney fees. Ap-pellee was not arbitrary and capricious in defending on the basis of the inconsistencies presented.

Decree

In accordance with the reasons set forth above, the trial court’s judgment is reversed. Judgment is rendered in favor of plaintiff, Sherlyn Dixon Long, against defendants, Moses Motor Hotel, Inc. and Insurance Company of North America, in the amount of $1,586 for worker’s compensation benefits from July 13, 1983 through January 11, 1984 at the rate of $61 per week, together with legal interest on each weekly payment from its due date until paid, and in the amount of $2,141.20 for medical expenses, together with legal interest thereon from date of judicial demand until paid, and for all costs of this proceeding including the costs of appeal.

Reversed and rendered.


source: Caselaw Access Project

author: MARVIN, Judge.

license: Public Domain

text:
    Roosevelt HUGHES, Plaintiff-Appellant, v. QUERBES & NELSON, INC., et al., Defendants-Appellees. Roosevelt HUGHES, Plaintiff-Appellant, v. PUMP MASTERS, INC., et al., Defendants-Appellees.
    Nos. 16691, 16692-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.
    Writ Denied Feb. 4, 1985.

      C. William Gerhardt, Shreveport, for plaintiff-appellant.
    Bodenheimer, Jones, Klotz & Simmons by J.W. Jones, Shreveport, for Querbes & Nelson, et al.
    Cook, Yancey, King & Galloway by Brian A. Homza, Shreveport, for Pump Masters, Inc., et al.

      Before MARVIN, FRED W. JONES, Jr. and NORRIS, JJ.
   MARVIN, Judge.

In this appeal plaintiff, who sued in tort and in worker’s compensation after being struck by a truck while on a mission as a “messenger” for his employer, seeks to increase the tort damages awarded, and to reverse the rejection of his demands for total and permanent disability.

Plaintiffs employer, a Shreveport insurance agency, also appealed to preserve its right to claim further reimbursement from the tort defendants for any additional worker’s compensation liability that we might find.

The tort defendants answer the appeal, contending that excessive damages were awarded and that the trial court erred in failing to find plaintiff comparatively at fault under CC Art. 2323. In all respects, we affirm.

SCOPE OF REVIEW

Questions of fault generally present only factual issues. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Towns v. Georgia Casualty and Surety Co., 459 So.2d 124 (La.App.2d Cir.1984); Varnado v. Continental Ins. Co., 446 So.2d 1343 (La.App. 1st Cir.1984); Triangle Trucking Co. v. Alexander, 451 So.2d 638 (La.App.3d Cir.1984). Similarly, questions of total and permanent disability primarily present factual questions. Crump v. Hartford Acc. & Indem. Co., 367 So.2d 300 (La.1979); Spillers v. City of Shreveport, 367 So.2d 135 (La.App.2d Cir.1979); Peck v. T G & Y Stores Co., 451 So.2d 1327 (La. App. 1st Cir.1984). In the absence of an erroneous interpretation or application of law to factual circumstances found by a trial court, our review of alleged factual error is under the manifest error, or clearly wrong, standard. Arceneaux, supra.

Damage awards are reviewed under the abuse of discretion standard. Reck v. Stevens, 373 So.2d 498 (La.1979).

We find nothing clearly wrong in the trial court’s conclusions that the accident was solely the fault of the tort defendants and that plaintiff was not totally and permanently disabled by the accident. We also find that the damages awarded were neither excessively high nor excessively low so as to constitute an abuse of the trial court’s discretion.

We adopt the trial court’s reasons for judgment and, where appropriate, we shall quote or summarize these findings.

THE ACCIDENT

The accident occurred about 9:40 a.m. on January 19, 1982, as plaintiff was walking across Texas Street at its intersection with Market Street. He said he waited at the northeast corner of the intersection until the Market Street light turned green and signaled “WALK” before walking south across Texas Street in the crosswalk.

The defendant truck driver, proceeding southerly on Market, said he slowed in response to traffic in front of him, saw that he had a green light, and began to turn left on Texas at about 4-5 mph. He said he looked but did not see any pedestrian traffic crossing Texas. The truck driver said he heard a thump on the left side of his truck about the time he entered the northernmost eastbound lane of Texas. He said he then brought his truck to a stop within 5 or 6 feet. After departing his truck he saw plaintiff (for the first time), then sitting in the street.

Plaintiff said he remembered nothing other than being struck on his right side by “something” while he was looking “straight ahead” walking across the street. He said he was rendered unconscious. Plaintiff was then taken to the emergency room of a local hospital, where he said he regained consciousness and where he was treated and released. Plaintiff returned to work about a month later and continuously worked for the insurance agency for 21 months thereafter.

The defendant truck driver was questioned immediately after the accident by Officer Dorothy Land, who investigated the accident for the Shreveport Police Department. The driver stated that he had not seen the pedestrian as he made his turn, and that he had momentarily looked away as he turned. The officer was unable to find any witnesses to the accident.

The plaintiff attempted to prove the defendant’s negligence by showing that the driver had encroached into one of the westbound lanes while he was making his turn. There was some confusion in the testimony of the officer as to exactly where the plaintiff was sitting and where the defendant’s truck was positioned when she arrived at the scene, whether the driver had in fact encroached into a prohibited lane, however we are satisfied that the evidence more than supports the trial court’s finding that the accident was caused solely by the fault of the driver.

The driver testified that he did not see any pedestrians in the crosswalk. He further testified that he looked away as he made his turn. The plaintiff testified that he was crossing with the pedestrian light and in the crosswalk. The driver testified that he heard a “thump” on the left front of his truck immediately before he stopped, opened the door and saw plaintiff on the ground. The fact that the driver testified at trial that the pedestrian light read “DON’T WALK,” but did not say anything comparable at the scene, does not indicate that the trial court abused its prerogative by giving no weight to that part of the driver’s testimony, and by finding the driver solely at fault. The driver and plaintiff were proceeding initially in the same direction and the driver should have known that his left turn would be made from a position toward which any pedestrian walking south would not be facing. The burden of proving a plaintiff’s comparative negligence rests with the defendant who alleges it.

DISABILITY AND CAUSE

Plaintiff was 70 years old when struck by defendant’s truck. He had had at least three partially disabling accidents before a fourth partially disabling accident in October 1975. He had “a lifting injury ... in 1971; a pedestrian auto accident ... in 1973; and an ... auto accident in 1974,” before an October 1975 rear end collision in which he also suffered some partial disability. Hughes v. Cox, 365 So.2d 1387 (La.App.2d Cir.1978).

The 1971 lifting accident, requiring lumbar disc surgery, produced a medically rated 20 percent permanent partial disability to plaintiff’s low back and right leg.

The 1974 auto accident, also requiring disc surgery (cervical), produced a medically rated 15 percent permanent partial disability of the cervical spine. The 1975 auto accident produced an additional five percent medically rated permanent partial disability to the body as a whole, resulting in an accumulated 40 percent medically rated permanent partial disability of the body as a whole.

After the 1982 accident, plaintiff continued working for 21 months (February 22, 1982, to October 14, 1983) when he terminated his employment with the defendant insurance agency about two weeks before this case was tried. No doctor, not even Dr. Gleason, suggested to plaintiff that he quit work or that he was unable to continue working.

Three doctors did not believe that the 1982 accident totally and permanently disabled plaintiff. Two of these doctors had treated plaintiff for his previous injuries. One examined and evaluated plaintiff for the purposes of rendering his expert opinion in this case. A fourth doctor, plaintiff’s treating physician (Dr. Gleason), opined that the 1982 accident caused plaintiff some permanent injury and additional disability.

Dr. Gleason assessed an additional five percent disability to plaintiff’s back and ten percent to plaintiff’s right leg and attributed this assessment to the 1982 accident. The other doctors disagreed that any further disability should have been assessed and attributed no permanent effect to the 1982 accident.

Important considerations made by the other doctors and by the court included the absence of any complaints by plaintiff of back pain for two months following the 1982 accident, plaintiffs continuing to work after the accident, even longer hours than before, and plaintiffs statements to Dr. Gleason to the effect that he was experiencing “very few symptoms and was basically asymptomatic” before the 1982 accident.

Dr. Gleason also attributed a slight atrophy (5 mm.) of plaintiffs right leg to the 1982 accident. The trial court found Dr. Gleason’s testimony unpersuasive because it was contradicted by other doctors and because plaintiff had misrepresented his prior condition to Dr. Gleason.

All the medical witnesses, including Dr. Gleason, agreed that if the January 1982 accident caused disabling pain, the pain would have manifested itself almost immediately after the accident. Plaintiff did not complain of back pain until some two months after the accident. Dr. Gleason resolves the apparent inconsistency of his agreement with the other doctors on the pain issue and of his disagreement with them on the causation issue by explaining that he believed plaintiffs later statements that he first experienced back pain four or five days after the accident, and because he believed that pain in other areas of plaintiffs body might have “overruled” his back pain.

The court agreed with the expert neurosurgeon that the 5 mm “atrophy” or difference between plaintiffs left and right leg was clinically insignificant in the light of plaintiffs surgical history and had probably existed before the 1982 accident. The court noted that Dr. Gleason admitted that the atrophy could have existed before he detected it. The court also noted that the medical testimony established that the atrophy had not increased since being observed by Dr. Gleason and measured by a neurosurgeon.

In Walton v. Normandy Village Homes, Inc., 460 So.2d 1166 (La.App.2d Cir.1984), this court addressed the law regarding a plaintiff’s burden of proof in. a worker’s compensation case. There we recognized the presumption that a

“... claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, and symptoms of the disabling condition commenced at-the time of the accident and continuously manifested themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.” 460 So.2d at 1173.

We also noted that

“a pre-existing condition does not preclude recovery for a disabled claimant, rather the employer takes the employee as he is. The fact that the disease alone may have disabled the plaintiff eventually in its ordinary course of progress is not the inquiry. The claimant’s disability is compensable if the pre-existing disease is somehow activated or precipitated into disabling manifestations as a result of the work-related accident.” 460 So.2d at 1173.

The presumption, of course, is not absolute, but is rebuttable, and plaintiff must prove that he was in good health before the accident, that symptoms of the disabling condition commenced at the time of the accident and continuously manifested themselves afterwards. Robertson v. Scanio Produce, 449 So.2d 459, 461 (La.1984). This plaintiff has failed in his burden of proving disability and the other factors and is not entitled to the presumption. Walton, supra.

The function of the trial court is to assess witnesses’ credibility and to give appropriate weight to testimony. Absent manifest error, we will not disturb this function. We find no manifest error, either in the trial court’s assessment of the plaintiff’s testimony or in the assessment of the medical testimony. Dr. Gleason’s opinion was contradicted by other experts.

Plaintiff also contends that the trial court erred in failing to find him an “odd-lot” disabled laborer. A claimant may be considered totally disabled if, after his injury, he is considered an “odd-lot” in the competitive labor market, i.e. that he may be capable of holding various jobs from time to time, but that the kind of work he may perform is so limited in quality, dependability or quantity that a reasonably stable market for that work does not exist. Malone-Johnson, § 276. Under this approach the claimant has the burden of proving that injury causing the disability arose out of and within the course and scope of his employment.

In the present case the trial court found that plaintiff failed to prove that the 1982 accident caused permanent and total disability. The trial court therefore did not consider the “odd-lot”, doctrine. The record supports the trial court’s findings in this respect and we find no error.

We also find no error with respect to penalties and attorney fees under the worker’s compensation law. The extent and the cause of plaintiff’s disability was genuinely disputed. The time between the accident and the time, and reason why, plaintiff stopped work afford a legitimate reason for the employer to question plaintiff’s claims of disability from the 1982 accident. The employer was not arbitrary or capricious in refusing to pay the compensation demanded.

QUANTUM

The trial court awarded plaintiff $20,000 in general damages and almost $6,000 in special damages. Plaintiff claims this is an inadequate award; the truck defendants claim the award is excessive.

The evidence establishes and the court recognized that even though plaintiff did not prove total and permanent disability, he nonetheless suffered a painful injury of relatively short duration. The court found that plaintiff suffered some pain for several weeks. In assessing the damages and the award that would make the plaintiff whole, the court took into account that a 70-year-old would suffer greater damage than would a younger person.

Under the circumstances of this case, the award of $26,590.58 is not an abuse of the trial court’s discretion.

DECREE

For the reasons assigned by the trial court and summarized here, the judgment is AFFIRMED. Costs of this appeal are assessed equally to plaintiff and to the truck defendants.


author: PRICE, Judge Pro Tern.

text:
    Sidney Rice WALTON, Plaintiff-Appellant, v. NORMANDY VILLAGE HOMES ASSOCIATION, INC. et al., Defendants-Appellees.
    No. 16707-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.
    Writ Granted Feb. 4,1985.

      Donald R. Miller, Shreveport, for plaintiff-appellant.
    Cook, Yancey, King & Galloway by Charles G. Tutt, Shreveport, for defendants-appellees.
    Before SEXTON and NORRIS, JJ., and PRICE, J. Pro Tern.
   PRICE, Judge Pro Tern.

Plaintiff, Sidney Rice Walton, appeals the judgment of the trial court in favor of his employer, Normandy Village Homes Association, Inc. and its insurer, Hartford Accident and Indemnity Company, denying him workmen’s compensation benefits. We affirm the judgment of the trial court for the following reasons.

The record states that plaintiff was born September 20, 1951 and had diabetes melli-tus since he was approximately six or seven years old. Plaintiff had been employed by defendant, Normandy Village Homes Association, Inc., as manager of the complex. Plaintiff performed both managerial and maintenance duties.

On April 23, 1981, the air conditioning unit malfunctioned in the complex’s club house. The unit was located on the roof of the two-story building which was approximately twenty feet above ground. Plaintiff climbed a ladder up to the roof to reset the air conditioner and then returned to the inside of the club house to adjust the thermostat. Plaintiff returned to the roof to put the cover back on the air conditioning unit and as plaintiff was preparing to walk onto the roof from the ladder, the ladder collapsed causing plaintiff to fall onto the concrete surface below.

Plaintiff testified that he lost consciousness for an unknown period of time after the fall. When he came to, he was bleeding, his pants were torn, and he had lost bowel and bladder control. Plaintiff began crawling to a car and was found by a maintenance man who immediately took plaintiff to an emergency room. Plaintiff was treated at the emergency room and released. Plaintiff was found to have a fresh, large hemorrhage in his left eye and had massive hematomas in the lumbosacral area and left buttock. Plaintiff had visual disturbances due to the hemorrhage, complained of difficulty in hearing, and back pain.

Plaintiff was hospitalized on April 29, 1981 until May 3, 1981 and was examined by several physicians. Plaintiff’s hearing and neurological functions were checked. The discharge diagnosis noted the eye hemorrhage and extensive hematomas, as well as diabetes mellitus. The estimated length of disability was six to eight weeks for significant physical work but office duties were permissible. Plaintiff returned to work but only was able to perform office duties. Plaintiff was taking pain medication and testified that he was in excruciating pain. Plaintiff stated that he had difficulty in moving about and had to stay off his feet.

Plaintiff was hospitalized again on June 4, 1981 until June 5, 1981 for nausea, vomiting, and diarrhea. The diagnosis was acute gastroenteritis.

It appears from plaintiffs testimony that he continued to work until sometime in July, 1981. Plaintiff testified that he had continued to feel sick and went to see his physician, Dr. A.A. Herold. Dr. Herold took several tests and referred plaintiff to Dr. Stephen Youngberg and Dr. Sheldon Kottle who specialized in nephrology, diseases of the kidney. Plaintiff was diagnosed as being in progressive renal failure and a kidney transplant was recommended. Plaintiff was referred to LSU Medical Center and then to University of Minnesota Hospitals in Minneapolis, Minnesota for transplant evaluation. Plaintiff eventually received a kidney transplant on October 6, 1981 at the University of Minnesota Hospitals. The donor was plaintiffs sister.

Plaintiff filed the instant action on November 2,1981 seeking workmen’s compensation. Plaintiff alleged that his condition and inability to work or be gainfully employed was proximately caused by the injuries he received as a result of the fall while in the course and scope of his employment. Plaintiff testified that he has been unable to return to work after receiving the transplant. Plaintiff stated he could perform sedentary work and had done some yard work since the transplant but was unable to engage in any type of manual labor.

At the trial on this matter, there was considerable medical evidence offered by the parties. Dr. A.A. Herold, an internist specializing in the treatment of diabetes, had treated plaintiff since the onset of his diabetes when he was a child. Herold testified that plaintiff suffered from Kimmel-stiel Wilson syndrome, a condition seen in diabetics. It consists of three degenerative elements, the presence of protein in the urine, retinal changes or hemorrhages in the eyes and diastolic hypertension. When plaintiff was hospitalized after his fall, laboratory tests revealed plaintiff had an elevation of creatinine in his blood stream.

Creatinine is one of two waste products which are measured in evaluation of renal function. Creatinine and BUN, blood urea nitrogen, are basic tests of kidney function. The amount of BUN and creatinine present in the bloodstream appears to increase as kidney function becomes progressively impaired. The BUN measurement, however, may vary depending on other factors other than kidney function such as dehydration, diet or acute illness. Creatinine is the most accurate measurement.

Creatinine is a breakdown measurement of muscle in the body and is filtered or excreted by the kidney. As the kidney fails, the creatinine accumulates and the amount of creatinine increases in the bloodstream. The normal range of creatinine content in the bloodstream is one miligram per decimeter in the blood. As the creati-nine originates in muscle, the normal range will vary among different people depending upon their muscle mass.

Dr. Herold testified that a creatinine level above 1.5 miligrams is considered abnormal. Dr. Herold testified that on April 30, 1981, after the fall, plaintiffs creatinine level was 4.1. Previous measurements of the creatinine levels included a measurement of 1.7 in July, 1978, 2.3 on September 25, 1980, and 2.9 on January, 1981. When plaintiff was hospitalized in June, 1981, his creatinine level had decreased slightly to 3.9.

Herold testified that kidney malfunction is associated with a diabetic patient and diabetes is the most common cause of kidney failure. Herold testified that prior to the fall due to plaintiff’s history of diabetes, he knew that plaintiff would require dialysis or a transplant at some point of time. However, there is no medical certainty as to the rate of progression of renal failure. Herold testified that he felt there was a causal relationship between the rapid elevation of creatinine to 4.1 indicating kidney failure and the fall. Plaintiff was able to work prior to the fall but after the accident, plaintiff went into rapid progressive renal failure. Herold testified that there were two possible ways that the fall could have affected the kidneys. One would be direct trauma to the kidney and the other was that the breakdown products of blood as they were absorbed and excreted from the tissues may have clogged the kidneys preventing the excretion of wastes. Herold testified that he felt that the fall had accelerated the damage to plaintiffs kidneys and had accelerated the date when plaintiff would require a transplant.

However, Herold testified that the rise from 2.3 to 2.9 from September 25, 1980 to January 4, 1981 was fairly rapid and that such rises could happen without precipitating causes. Herold testified that Dr. Youngberg, a nephrologist, would be in a better position than he and surgeons to testify whether the fall had necessitated the transplant.

Herold testified that plaintiff had significant improvement in renal function after the transplant. However, the immuno suppressant drugs which plaintiff must take to prevent the kidney from being rejected does affect plaintiffs ability to work as the drugs significantly reduce plaintiffs resistance to infection.

Two physicians, Dr. Jose Barbosa and Dr. David Sutherland, from the University of Minnesota Hospitals testified by means of written interrogatories.

Dr. Jose Barbosa specializes in endocrinology and metabolism, particularly diabetes and had conducted several examinations of plaintiff and participated in plaintiffs diabetic care. Barbosa testified that plaintiffs fall precipitated renal failure in kidneys previously damaged by diabetes. Barbosa testified his diagnosis of plaintiffs condition as it was related to the injuries from the fall was renal failure triggered by severe trauma with dehydration and internal bleeding in kidneys with a moderate degree of diabetic nephropathy. Although diabetic nephropathy is a progressive disease, Barbosa felt the above mentioned mechanisms resulting from the fall probably had considerable effect in speeding up the process. Barbosa testified that the close relationship between the sudden deterioration and the fall indicated a causal relationship.

Dr. David Sutherland, a surgeon, performed plaintiffs kidney transplant. When asked at what point in plaintiffs history diabetic nephropathy first was diagnosed, Sutherland testified that the 2.3 creatinine level on September 25, 1980 was abnormally high and as plaintiff had been diabetic for many years, the diagnosis at that time was almost certainly diabetic ne-phropathy. Sutherland testified that the plaintiffs fall and resulting trauma could have accelerated the decline in kidney function which had already begun as a result of the diabetes. Sutherland testified that progression of kidney failure is usually slow and the very marked increase in creatinine from January 4, 1981 to April 30, 1981 was statistically unusual. Sutherland felt that the fall and resulting trauma accelerated the progression of plaintiffs kidney disease resulting in deterioration to the point when a transplant was necessary to avoid dialysis treatments.

Sutherland testified that several mechanisms could explain the accelerated development of diabetic nephropathy following the fall. Hemorrhages into the tissues injured by the fall were followed by release of hemoglobin and byproducts of hemoglobin metabolites into the blood plasma. Those substances could have partially clogged the glomeruli or the filters in the kidney. A kidney with already injured glomeruli as a result of diabetic nephropa-thy will be unable to recover from this additional injury. Another mechanism by which the fall may have accelerated renal failure is the induction of a low blood volume state. The hemorrhages into the tissue reduces blood volume which reduces the perfusion of the kidneys by the blood. A kidney already injured by diabetic ne-phropathy is not able to recover from such damage in the same fashion as a normal kidney.

Dr. Stephen Youngberg, a nephrologist, testified on the behalf of the defendants. As noted earlier, plaintiff was referred to Dr. Youngberg and Dr. Kottle on July 14, 1981 by Dr. Herold. Dr. Youngberg testified that he did not feel that the fall accelerated the course of plaintiff’s diabetic renal disease or necessitated earlier timing of the kidney transplant nor was there evidence that the fall actually had injured the kidneys.

Youngberg testified that a creatinine reading of 1.7 in July, 1978, in a person the size of plaintiff would indicate some dimin-ishment of normal kidney function which would be typical in a juvenile diabetic who had diabetes for a period of nineteen to twenty years. Youngberg testified that a creatinine level of 2.0 would imply the loss of approximately fifty percent of kidney function in an average size person who would be expected to have a creatinine level of 1.0 under normal circumstances. Youngberg testified that the rise in plaintiff’s creatinine from 2.3 to 2.9 which occurred between September, 1980 and January, 1981 was within a typical progression of diabetic renal disease. Youngberg explained that the larger the creatinine numbers become, there is actually less change or impact in overall function of the kidneys. So, for example, a change from 2.0 to 3.0 is more significant than a change from 3.0 to 4.0. Youngberg testified that the rise in serum creatinine measurements is not a linear function but rather a logarithmic or hyperbolic function. Youngberg graphed the data regarding plaintiff’s various crea-tinine measurements to illustrate a medical phenomenon. It appears that if the creati-nine measurements were graphed, they would be increasing in a curvilinear fashion. Youngberg explained that there is a method of normalizing the data by making it into a straight line and that is by showing the reciprocal of serum creatinine or creatinine clearance. In other words, the data which taken on the surface shows as the numbers start to accelerate, is a hyperbolic function. However, normalizing this data by either taking the logarithm of that function or the reciprocal of that function, a linear or straight line could be determined. This changes the data which is a curved line into a straight line. In graphing, the straight line may have a slope which goes up at different levels. However, Youngberg testified that an individual patient is quite faithful to the straight line, that is, once two points are determined on the line, the rate of the progression of their kidney disease progresses quite faithfully at that set rate. In other words, although the rate of progression is variable, for each patient it tends to remain very faithful.

Examining plaintiff’s data, Youngberg testified that the line was faithful to plaintiff’s rate of progression and points determined before the fall have indicated the same straight line as after the fall. In other words, it appears that the general trend in plaintiff’s rate of progression was unchanged by the accident as there was a straight line over the time period of the fall. Youngberg testified that the precipitous change in plaintiff’s kidney condition appears to have occurred between September, 1980 and January, 1981. Youngberg testified the progression from 2.9 in January, 1981 to 4.1 in April, 1981 was typical and was not a rapid rise indicating injury from fall considering all of the pertinent data. Youngberg testified that plaintiff’s kidneys were not stable before the accident nor could plaintiff’s kidney disease be clas.-sified as mild, rather plaintiff was evidencing chronic progression of renal disease.

It was stipulated that if Dr. Sheldon Kot-tle was called to testify, he would testify identically to Dr. Youngberg.

Dr. Jarrell Myrick, a nephrologist, also testified on behalf of the defendant. Myr-ick testified that a change from 2.3 to 2.9 and from 2.9 to 4.1 is entirely typical. Myrick testified it did not appear that the progression of plaintiff’s failure had changed suddenly around April, 1981, the time of the fall and the change from 2.9 to 4.1 did not represent any accelerated decline. Myrick testified that there was nothing to indicate that the fall accelerated the transplant or precipitated any renal failure rather, it was just a steady progression. Myrick, like Youngberg, testified that if there was a sudden change in plaintiffs kidney function, it occurred in September, 1980.

Plaintiff was examined by Dr. William Bundrick and Dr. Don Burt on February 11, 1983 for back complaints. Dr. Bun-drick testified by deposition and it was stipulated that if Dr. Burt were to testify, his testimony would be identical to Dr. Bundrick. Dr. Bundrick testified plaintiff did show some evidence of nerve root irritation and a lumbosacral strain. Dr. Bun-drick testified that as the fall occurred almost two years prior to the examination, it would be difficult to say that it had anything to do with the findings. Further, these findings could occur in patients without any history of trauma. There was no testimony as to what extent, if any, plaintiff was disabled by this back condition.

After reviewing the evidence, the trial court found that plaintiff was not entitled to workmen’s compensation benefits. The court noted that Dr. Herold had testified that Dr. Youngberg, a nephrologist, was the medical witness best able to give an evaluation as to the relationship between the kidney failure and the fall. The court concluded that the medical testimony critical to a determination of whether the fall sustained by plaintiff either accelerated or contributed to the subsequent transplant should come from the nephrologists who were unanimous in their opinion that the renal failure was not precipitated by the fall nor was there any evidence of change in the progression of plaintiffs condition.

The court noted that Dr. Youngberg and Dr. Myrick disagreed with the opinions of the physicians who had no expertise in the field of nephrology. The court felt it was apparent that these physicians misunderstood and misinterpreted the mathematical indications of the creatinine level.

The court further found that there was nothing in the deposition testimony of Dr. Bundrick to indicate any disability was sustained by the plaintiff beyond the initial obvious pain and discomfort which plaintiff experienced following the fall. The court found that if plaintiff did have any back condition, it was not related to the accident.

On appeal, plaintiff asserts the following assignments of error:

1. The trial court erred in rejecting plaintiffs demands for benefits under the Workmen’s Compensation Act for total and permanent disability or alternatively for permanent partial disability, together with penalties, attorney’s fees and all costs, holding that plaintiff had not proven a compensable injury; and,
2. The trial court erred in requiring plaintiff to prove by a preponderance of the evidence that his work-related fall was the sole and proximate cause of plaintiff’s kidney failure and the resulting disability.

ASSIGNMENT OF ERROR NO. 1

Plaintiff argues that the court erred in rejecting his claim for workmen’s compensation. Although plaintiff had diabetes for quite some time before the accident, he was able to work but has been unable to work following the accident.

It is not disputed that the plaintiff did have a work-related accident and it certainly appears from the record that plaintiff became disabled from his kidney disease. It is the chain of causation between these events which is at issue.

As noted in Guillory v. U.S. Fidelity & Guar. Ins. Co., 420 So.2d 119 (La.1982), “(w)here there is proof of an accident and of the following disability without any intervening cause it is presumed that the accident caused the disability. It is not necessary to determine the exact cause of the disability.... The criterion for causal connection between the accident and the disability is: ‘has the accident changed the plaintiff’s condition so as to render him disabled and unfit for his former employment...?’ The presumption ... is rebut-table. Its effect is to shift the burden of proof to the defendant. The defendant bears the burden of coming forward with enough contrary evidence to rebut the presumption.” at pgs. 123-124 (citations omitted). The chain of causation required is that that employment causes the accident, the accident causes an injury and the injury causes the disability.

If there is not proof of an intervening cause, “... claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, and symptoms of the disabling condition commenced at the time of the accident and continuously manifested themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition. Robertson v. Scanio Produce, 449 So.2d 459 (La.1984) at p. 461 and citations therein.

It is well-settled that the “... employee in a workers’ compensation proceeding has the burden of establishing the disability and causal relation with the employment accident by a preponderance of the evidence. Nevertheless, it is not necessary for the experts to determine the exact cause of the disability in order for the employee to recover. The complaint need show only by a preponderance of the evidence that somehow the work accident caused the disability. Allor v. Belden Corp., 393 So.2d 1233 (La.1981) at p. 1235-1236 (citations omitted). See also Martin v. H.B. Zachry Co., 424 So.2d 1002 (La.1982). The determination of whether there is a causal relationship between a claimant’s disability and employment is a question of fact. Delco v. Heritage Manor Nursing Home, 441 So.2d 309 (La.App. 3d Cir.1983), writ denied 443 So.2d 1123. The factual findings of the trial court as to a work-related disability are entitled to great weight on appellate review. Martin v. H.B. Zachry Co., supra.

It is clear that a pre-existing condition does not preclude recovery for a disabled claimant, rather the employer takes the employee as he is. The fact that the disease alone may have disabled the plaintiff eventually in its ordinary course of progress is not the inquiry. The claimant’s disability is compensable if the pre-ex-isting disease is somehow activated or precipitated into disabling manifestations as a result of the work-related accident. Hammond v. Fidelity & Cas. Co. of New York, 419 So.2d 829 (La.1982) and Guillory v. U.S. Fidelity & Guar. Ins. Co., supra.

An examination of the record in light of the above jurisprudence reveals that the trial court was not clearly wrong in rejecting plaintiff’s claim for workmen’s compensation benefits.

As noted earlier, the criterion to determine a causal connection between the accident and disability is whether the accident changed the plaintiff’s condition so as to render the plaintiff disabled and unfit for his former employment. Guillory v. U.S. Fidelity & Guar. Ins. Co., supra. See also Bertrand v. Coal Operators Casualty Company, 221 So.2d 816 (La.1968). The evidence at trial reveals the accident did not change plaintiff’s condition.

Plaintiff had diabetes for approximately 20 years before the accident and the record reveals that he had suffered health problems associated with that illness, such as eye hemorrhages, hypertension, and kidney nephropathy. However, plaintiff was able to work and was gainfully employed at the time of the accident.

It appears that the physicians testifying on the behalf of plaintiff, Herold, Barbosa and Sutherland, based their opinion that the fall accelerated plaintiff’s kidney disease and the timing of the transplant upon the seemingly rapid rise of plaintiff’s crea-tinine level from 2.9 to 4.1 between January and April, 1981. These physicians felt that plaintiff’s kidney disease was “mild” and “stable” before the accident. However, the nephrologists testified that this was not in fact a rapid rise when considered in light of all of the pertinent data. The nephrologists, Youngberg and Myrick concluded that if there was any sudden worsening of plaintiffs kidney disease, it occurred between September, 1980 and January, 1981 when plaintiffs creatinine level rose from 2.3 to 2.9. In graphing plaintiffs data, Dr. Youngberg illustrated that the creatinine rise from 2.9 to 4.1 was not unusual but rather a fairly typical rate of progression in light of all the data.

It appears that the trial court afforded more weight to the nephrologists’ testimony than to the testimony of the other physicians who did not specialize in nephrology. It is well-settled that the trial court is in the best position to evaluate the credibility of witnesses and further that the “... opinion of an expert within whose specialty the subject falls is entitled to greater weight than one whose specialty does not encompass the subject.” Benoit v. Ryan Chevrolet, 428 So.2d 489 (La.App. 2d Cir.1982) at p. 491. The court noted that it appeared that the physicians who had no expertise in the field of nephrology misunderstood and misinterpreted the mathematical indications of the creatinine level.

As noted earlier, the fact that plaintiff had a pre-existing disease or condition or that plaintiff would have eventually required a transplant would not act to preclude recovery. The crucial question for determination is whether the accident changed plaintiffs condition. The evidence reveals it did not. The testimony of the nephrologists is clear that plaintiff had severe kidney nephropathy before the fall with a creatinine level of 2.9 in January, 1981. The seemingly rapid rise of plaintiffs creatinine level after the accident did not evidence a change of plaintiffs condition but rather simply reflected a typical rate of progression. It does not appear that plaintiffs symptomatology changed nor did his condition worsen after the fall. Examining plaintiffs history prior to the fall in light of the medical testimony reveals that the accident did not accelerate plaintiffs kidney disease or necessitate earlier timing of the transplant. It appears that plaintiffs kidneys were failing before the accident and this rate of progression continued in the same overall trend after the accident.

Defendants argue that as plaintiff was not an “otherwise healthy worker” before the accident due to a pre-existing disability and as there appeared to be no change in plaintiffs condition after the fall, this should obviate the application of the presumption that the accident caused the disability when there is proof of an accident and a following disability without any intervening cause.

It is clear that even if the presumption enumerated in Guillory v. U.S. Fidelity & Guar. Ins. Co., supra, was applied in the instant case without regard to plaintiffs pre-existing condition before the fall, it has been rebutted by the defendants’ medical testimony that the accident did not accelerate plaintiff’s kidney disease or change his general condition.

The court was not clearly wrong in finding that plaintiff had failed to prove any disability from back injuries allegedly resulting from the fall. The protracted length of time between the date of the fall and plaintiff’s medical examination made it quite difficult for the physicians to connect plaintiff’s back condition to the trauma incurred as a result of the fall. Further, there was no evidence as to the extent that plaintiff was disabled, if at all, by his back condition.

ASSIGNMENT OF ERROR NO. 2

Plaintiff argues that the court erred in requiring plaintiff to prove by a preponderance of the evidence that his work-related fall was the sole and proximate cause of plaintiff’s kidney failure and resulting disability. This argument is without merit.

An examination of the record evidences that the court did not apply such an onerous burden of proof but rather applied the appropriate standard, that is, whether the accident changed plaintiff’s condition so as to render him disabled. After examining the evidence, the court simply found that the evidence did not substantiate a finding that the accident had changed plaintiffs condition.

For these reasons, the judgment in favor of defendants, Normandy Village Homes Association, Inc. and Hartford Accident and Indemnity Company, is affirmed at plaintiffs, Sidney Rice Walton’s, costs.

AFFIRMED.


author: JASPER E. JONES, Judge. FRED W. JONES, Jr., Judge,

text:
    William Gary BLACK, Plaintiff-Appellee, v. Shirley Jean Parker BLACK, Defendant-Appellant.
    No. 16704-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.
    Rehearing Denied Jan. 4, 1985.
    Writ Denied Feb. 15,1985.
    Stewart & Stewart by Jonathan M. Stewart, Arcadia, for defendant-appellant.

      Culpepper, Teat, Caldwell & Avery, by Bobby L. Culpepper, Jonesboro, for plaintiff-appellee.
    Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   JASPER E. JONES, Judge.

The mother appeals a judgment rendered on a rule filed by the father seeking joint custody of the minor children of the marriage. The judgment awards joint custody with each parent receiving physical custody for alternating six month periods and relieves the father of his obligation to pay child support while he has physical custody. The judgment awards the father the right to claim the children as dependents on his income tax returns. We amend and affirm.

William and Shirley Black were married August 13, 1968. Two children were born of the marriage; Brad on December 8,1971 and Jennifer on June 15, 1973. The parties legally separated in February, 1980. The mother received provisional custody of the children in the separation proceedings. The father was granted a divorce by judgment signed July 21, 1982. 'The divorce judgment awards the mother sole permanent custody. The father was awarded specific visitation privileges and was ordered to pay $400.00 per month child support.

The father filed the rule for joint custody on August 12, 1983 and filed with it a joint custody implementation plan in which he proposed that he receive custody for half of each year. He also proposed that he would be willing to continue paying the $400.00 per month child support during the period of time the mother has custody. The mother opposed the rule and the custody plan filed by the father.

Trial was held on February 1, 1984. At trial both parents called a number of character witnesses. The testimony of these witnesses and that of the parents establishes they are good loving parents and have good relationships with the children. The only other witness who testified was a psychologist, Dr. Donald Gucker, who examined the children at the mother’s request prior to trial. Dr. Gucker testified that both children are happy and well adjusted with no psychological or emotional problems. He stated that his optimistic assessment of the children’s emotional condition indicates the mother and father are excellent parents. Despite these findings Dr. Gucker advised against granting joint custody because he has found that alternating living arrangements, where children live for part of the time in one home and part in another, are emotionally disruptive to some children.

At the close of the evidence the trial judge announced he had decided to grant joint custody with the parents to receive physical custody for equal periods of time. The reasons given by the trial judge to support his decision are:

... I believe that Mr. and Mrs. — Gary Black and Shirley Black ... both want the best for their children.... I think you both think the same way, as far as the best for your children herein and what values you want your children to have.... The testimony of everybody here that came was that both Mr. Black and — Gary Black and Shirley Black were good parents. I’ve never had a case where both parties were so near the same herein and I don’t think that a more fit case for trying the joint custody and when I’m saying joint custody, I think the intent of the act was at least— was the fifty-fifty custody of the children herein. As I said before, I don’t know that it was. I think the law tells that it should work. I think it tells us that this is the presumption. I think I’m burdened with the responsibility herein of dividing the children fifty-fifty between the parties. I see no good reason not to.... I think the law says it should be fifty-fifty, basically speaking, unless there is a reason to say different. I see no reason why it should be different, from the testimony herein....

After announcing his decision the trial judge gave the parties several days to work out a custody implementation plan. The parents failed to agree to a plan and the trial judge devised his own which was incorporated into the judgment.

The issues raised on appeal are:
(1) Whether joint custody is in the best interest of the children;
(2) If joint custody is in the best interest of the children, whether the trial court erred in awarding physical custody on an equal time basis; and
(3) Whether the trial court erred in modifying the father’s child support obligation and in determining who could claim the children as dependents for income tax purposes.

Issue #1

LSA-C.C. art. 157 provides that changes in child custody after an original award shall be made in accordance with LSA-C.C. art. 146. Article 146 provides throughout that custody shall be awarded in accordance with the best interest of the children. The article establishes an order of preference for a custody award with custody to both parents jointly being the first preference. 146 A(l). The article further establishes a rebuttable presumption that joint custody is in the best interest of the minor children. 146 C.

The presumption in favor of joint custody may be rebutted upon a proper showing that a different arrangement is in the child’s best interest. Such a showing must include a consideration of eleven specific factors plus any other factor which the trial court deems to be relevant. 146 C(2)(a)-(i); Turner v. Turner, 455 So.2d 1374 (La.1984).

The trial judge stressed the equal fine qualities of the respective parents in his reasons for judgment but failed to articulate reasons why the joint custody was for the best interest of the children. The supreme court pointed out in Turner v. Turner, supra, the best interest of the child is, “the sole criterion to be met in making the award.” Implicit in the trial judge’s joint custody award is a finding that, considering the factors listed in 146 C(2), the statutory presumption in favor of joint custody had not been rebutted. Our review of the 146 C(2) factors in light of the record reveals:

(a) The parties both love their children and the children love them. The children may have stronger emotional ties with their mother since she has had sole custody for over four years but there is no indication that they would not develop equal ties with their father in a joint custody arrangement.

(b) Both parties are equally capable of giving the children love, affection and guidance. The children will be able to attend the same school and church and participate in the same activities regardless of which parent has physical custody. We note that both parents are educators and both attend the same church.

(c) There is no indication that either party is incapable of providing the children with food, clothing, medical care or other material needs.

(d) The mother currently resides in the former family home and the children have resided there since they were infants.

(e) Both parties appear to reside in permanent homes.

(f) There is no indication that either party is morally unfit.

(g) There is no indication that either party is mentally or physically unhealthy. Dr. Gucker opined that both parties are mentally healthy since their children appear to be.

(h) The children are well behaved, make respectable grades and present little need for discipline. There is some indication that they occasionally become overly emotional at home and school. This appears to be due to the fact that they were deeply affected by their parents divorce. There is no indication that the situation would be aggravated by a joint custody award.

(i) The children neither testified at trial nor discussed their preferences with the trial judge. The testimony by the mother and Dr. Gucker that the children prefer their mother retain custody, which is in conflict with the father’s testimony that the children told him they wanted to be with him half the time, is hearsay and appears to be unreliable. It was established that the children strive not to hurt either parent and may express different preferences as to their living arrangements depending on whom they discuss the topic with.

(j) The record indicates that each party encourages the children to have a close relationship with the other. The mother argues in brief that the parties are unable to communicate and agree upon anything of importance in respect to the children. The record does not support her argument. There is no indication that the parties disagree as to how the children should be raised. Their disagreements in respect to the children appear to be primarily limited to custody and visitation matters.

In Turner v. Turner, supra, the supreme court reversed a joint custody award, as not being in the best interest of the children, in part because the parties were constantly fighting over custody. There is no indication in the instant record that the problems between these parties are nearly as great as those in Turner. We note that in Turner the parents also had major differences over how the children should be raised.

(k) It was not established at trial how much distance is between the parents’ residences. They are at least close enough that the children can go to the same school and church and participate in the same activities whether they be residing with their mother or their father.

(i) Other factors we consider are: (1) Joint custody will enable the children to develop a more meaningful relationship with their father and both children may benefit from additional exposure to a father figure. See In re EWB, 441 So.2d 478 (La.App. 2d Cir.1983); (2) The father has remarried. His current wife testified she has a good relationship with the children and is in favor of a joint custody arrangement.

Giving due weight to each of these factors, we find the mother failed to rebut the presumption that joint custody is in the best interest of the children. The mother argues that great weight should be afforded Dr. Gucker’s unrebutted testimony that joint custody is not in the best interest of the children. Dr. Gucker’s objections to joint custody are general in nature. He pointed to no specific reasons why joint custody is not in the best interest of these particular children. In light of the legislative pronouncement that joint custody is presumed to be in the best interest, Dr. Gucker’s general objections to the concept are entitled to little, if any, weight.

Issue #2

Joint custody is defined by 146 D as follows:

D. For purposes of this Article, “joint custody” shall mean the parents shall, to the extent feasible, share the physical custody of children of the marriage. In making an award of physical custody, the court shall consider, among other things, the factors enumerated in Paragraph (C)(2). Joint custody shall also mean that the parents shall enjoy the natural cotutorship of such children in accordance with Article 250, subject to the plan of implementation effected pursuant to Paragraph A of this Article. Physical care and custody shall be shared by the parents in such a way as to assure a child of frequent and continuing contact with both parents....

The article gives no guidance as to how physical custody is to be divided. The jurisprudential rules on the subject are that each case must be decided on its own peculiar set of facts and the trial court’s decision is entitled to great weight and will not be disturbed on appeal absent manifest error. Hickman v. Hickman, 459 So.2d 140 (La.App. 2d Cir.1984); Peters v. Peters, 449 So.2d 1372 (La.App. 2d Cir.1984).

The mother first argues the trial court erred as a matter of law in holding the law required that physical custody be awarded on an equal time basis. This court has consistently held that joint custody does not necessarily mean an equal sharing of time. Hickman v. Hickman, supra; Peters v. Peters, supra; Adams v. Adams, 441 So.2d 490 (La.App. 2d Cir. 1983). In Adams we announced the following rule:

While shared physical custody does not necessarily mean a fifty-fifty sharing, no reason is presented in this case why the parents, both entirely suitable and capable, should not share physical custody of the less than two-year-old child on a substantially equal basis, or that “domiciliary arrangements” should not be such that the child lives with each parent for substantially equal periods of time. There may be reasons why the child should live with one of these parents more of the time than with the other, but any such reasons do not appear in the record of this case.

The reasons for judgment clearly reveal that the trial judge felt he was required to grant an equal sharing of custody only because no sound reasons were presented to indicate that some other arrangement was preferable. The trial judge’s determination substantially follows the rationale of Adams and we find no error in that determination.

The mother contends the sharing of physical custody on an equal time basis is not in the best interest of the children. She proposes an arrangement whereby she will receive physical custody for substantially the entire school year and the father will receive physical custody for most of the summer vacation. If the children were required to change schools when they changed residences, pursuant to the joint custody award, we might agree that the joint custody award ordered by the trial court is not in the best interest of the children. However, the children will be able to attend the same school regardless of which parent has physical custody.

In light of the trial court’s great discretion in child custody determinations and because of our findings in respect to the 146 C(2) factors, we find no manifest error in the trial court’s decision to grant physical custody on an equal time basis.

Issue #3

The mother contends the trial court erred in modifying the father’s child support obligation and in allowing the father to claim the dependency exemption for the children on his income tax return because neither relief was prayed for. Both issues are addressed in 146 A(l)(c) which states:

(c) Child support, (i) An award of joint custody shall not eliminate the responsibility for child support. Each parent shall be responsible for child support based on the needs of the child and the actual resources of each parent. If a parent would otherwise be unable to maintain adequate housing for the child and the other parent has sufficient resources, the court may order modified support payments for a portion of housing expenses even during a period when the child is not residing in the home of the parent receiving support. An order of joint custody, in and of itself, shall not constitute grounds for modifying a support order.
(ii) In addition, a provision for child support shall consider the impact of any dependency exemption granted to a parent by provisions of any revenue law and shall allocate such exemption to either parent.... (emphasis added)

Part (i) clearly provides that the mere changing of a custody award from sole custody to joint custody does not warrant a modification of child support unless the party seeking the modification of support proves he is entitled to it. A party seeking a modification of a child support award must show a substantial change in circumstances supporting the modification. Updegraff v. Updegraff, 421 So.2d 1165 (La.App. 2d Cir.1982). The only relevant change of circumstances shown is the change in the custody award. Part (i) specifically prohibits a modification on that basis alone. The trial court erred in modifying the father’s support obligation in the absence of evidence showing a change of circumstances.

Although it is in the section concerning child support awards, part (ii), when read in conjunction with the lead paragraph of 146 A(l), authorizes the adjudication of the right to claim the dependency exemption in a joint custody award. The parties currently stand in a posture where the father is required to pay $400.00 per month child support for the entire year and he has physical custody of the children for six months each year. We find no error in the trial court’s determination granting the father the right to claim the dependency exemption.

DECREE

The judgment of the trial court is amended to delete the sixth paragraph which contains the child support award and to substitute in its place the following provision:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that WILLIAM GARY BLACK continue paying the child support ordered by the divorce judgment of July 21, 1982.

As amended the judgment is AFFIRMED. Costs are assessed equally between the parties.

FRED W. JONES, Jr., dissents with written reasons.

FRED W. JONES, Jr., Judge,

dissenting.

The trial judge apparently assumed, incorrectly, that joint custody mandates an equal sharing of physical custody. I agree with the mother, who has been the primary nurturing parent of these children, and with Dr. Gucker, the psychologist, that in this ease giving the father equal physical custody of the children during the school year would be unduly disruptive and not in the best interest of the children. Consequently, while retaining the joint custody provision of the trial court judgment, I would award physical custody of the children to the mother during the school year and award physical custody of the children to the father during the summer vacation.

To the extent described, I respectfully dissent.

      . The judgment also specifies the rights and obligations of the parties and grants specific visitation privileges to the non-custodial parent. These provisions are not directly questioned on appeal.

      . The father proposed that he receive custody for the first half of the school year and the first half of the summer vacation.

      . The 146 C(2) factors are:
      (a) The love, affection, and other emotional ties existing between the parties involved and the child.
      (b) The capacity and disposition of the parties involved to provide the child love, affection, and guidance and to continue the education and raising of the child in his religion or creed, if any.
      (c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care, and other material needs.
      (d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
      (e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
      (f) The moral fitness of the parties involved.
      (g) The" mental and physical health of the parties involved.
      (h) The home, school, and community record of the child.
      (i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
      (j) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
      (k) The distance between the respective residences of the parties.

        (!) Any other factor considered by the court to be relevant to a particular child custody dispute.

      . The father is the principal of the Jonesboro Hodge Junior High School and the mother is a teacher at this school.

      . We further note that if the parties are unable to make the joint custody arrangement work without any major complications due to the fault of one party, the other party would have grounds to seek a change in that arrangement.

      .The father testified: "I would like to have equal opportunity for the children to know me as a parent ... And I feel that I can provide the substantial contribution from experience with children and especially in my job responsibility I see things that I think I can help them with. And I think that the opportunity that I could be provided with by having them more of the time would give me that opportunity to provide what I could for them.”

      . The record does show the income of both parties; however, it does not reveal whether there has been a change in income since the initial support award nor does it contain any evidence as to the needs of the parents or of any change in need which may occur as a result of the joint custody award.


author: FRED W. JONES, Jr., Judge.

text:
    STATE of Louisiana in the Interest of M.B., Appellee.
    No. 16730-CAJ.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.
    Grant & Dean by Philip T. Deal, Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Richard Ducote, Sp. Asst. Dist. Atty., New Orleans, for appellee.
    Before MARVIN, FRED W. JONES, Jr., and NORRIS, JJ.
   FRED W. JONES, Jr., Judge.

The unwed mother of a five-year-old appeals a judgment terminating her parental rights under La.R.S. 13:1601 D. We reverse and remand with directions.

When the child was about a year old, the State through the Department of Health and Human Resources (DHHR) cited the mother for 22 alleged instances of neglect. The mother filed an affidavit shortly thereafter agreeing that emotional and financial problems made her unable to care for the child. She expressly agreed that legal custody be placed in DHHR and that physical custody be placed in the child’s maternal grandmother. A judgment was signed to that effect on June 16, 1980.

Six months later, DHHR recommended to the court that temporary legal custody be given to the grandmother. The mother again agreed by affidavit. A judgment was signed to this effect on December 17, 1980.

In October 1981, the grandmother developed an ulcer which she attributed to the responsibility of caring for the child combined with the severe financial problems the family was experiencing resulting from the reduction in her husband’s earnings. On October 9, 1981, after an investigation, the grandmother voluntarily placed the child in temporary foster care under DHHR supervision pending further hearing scheduled 90 days later. On that hearing date (January 11,1982), the grandmother’s circumstances had not improved and the court awarded temporary custody of the child to DHHR.

On October 7, 1983, DHHR petitioned to terminate parental rights on grounds of neglect occurring during the first year of the child’s life, and on grounds of the mother’s failure to cooperate with DHHR, of her again being pregnant, and of her relationship with a cruel, drug-abusing boyfriend. By this time, however, the grandmother’s circumstances had greatly improved medically and financially. At the trial in December of 1983, the mother testified that she had ceased her relationship with the boyfriend who was in jail and that she was not then pregnant. The mother, with the active support of the grandmother, sought to maintain her parental rights, intending for her and the child to live with the grandmother whose fitness is not at issue.

DHHR proceeded under La.R.S. 13:1601 D. Under this section the State must prove that:

D. (1) The child has been in the custody of a child welfare department or other person, pursuant to a judicial order, for a period of at least one year.
(2) The child was removed from the custody of the parents by judicial order due to the parent’s abuse or neglect of the child.
(3) The parent is unfit to retain parental control and there is no reasonable expectation of reformation on the part of the parent or parents.
(4)The child is an abused or neglected child, the Department of Health and Human Resources has made every reasonable effort under the circumstances to reunite the child with his parents, and the department recommends that it would not be in the best interest of the child to be reunited with his parents.

This proof must be by “clear and convincing evidence.” La.R.S. 13:1603 A. This statute also provides that where the State has not met its evidentiary burden, “yet the child has been ... neglected,” the court shall order DHHR “to make a concerted effort to reunite parent ... and child, using any and all social services at its disposal” subject to semi-annual review by the court. La.R.S. 13:1603 B.

While it seems apparent that the mother on her own is not able to care for the child, the child has not been “neglected” in any sense after custody was placed with the grandmother in 1980. The mother had consented to this custody and both the mother and the grandmother desire to resume that arrangement. DHHR’s investigative reports of the grandmother’s home and the child’s welfare during the year and a half that the grandmother had the child were positive and recommended continuation of that relationship.

We recognize that the mother does not come close to being perfect, but find that she did visit and inquire about the child more frequently when the child was in the maternal grandmother’s home. Furthermore, the factors that led to the neglect of the child in the mother’s sole care four years ago would not be present in the grandmother’s home.

Under these circumstances, we must find that parental rights should not be forfeited because DHHR has not made every reasonable effort to reunite the child with the parent under La.R.S. 13:1601 D(4). We reverse the judgment terminating the mother’s parental rights and remand with directions that the trial court order DHHR to make the “concerted effort” required by R.S. 13:1603 B to reunite the mother and the child in the home of the grandmother subject to the review of the trial court as required by La.R.S. 13:1603 B(2).

Reversed and remanded with directions.


text:
    STATE of Louisiana, Appellee, v. George L. JACKSON, Appellant.
    No. 16776-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.
    Martha E. Minnieweather, Bastrop, for appellant.
    William J. Guste, Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty., Earl Cox, Asst. Dist. Atty., Monroe, for appel-lee.
    Before MARVIN, FRED W. JONES, Jr., and NORRIS, JJ.
   MARVIN, Judge.

George L. Jackson appeals, as excessive under the state and federal constitutions, a minimum sentence to 10 years at hard labor after pleading guilty to DWI 4th offense. LSA-Const. Art. 1, § 20; U.S. Const. Amend. VIII; LRS 14:98. He also contends that the trial court failed to comply with CCrP Art. 894.1.

Defendant asserts that “if the [minimum] sentence prescribed by statute is [excessive] cruel and unusual within the meaning of [the constitutional provisions] ... the statute itself is unconstitutional and any sentence imposed thereunder must be set aside.” Defendant does not specify, however, in what respects the statutory minimum sentence is unconstitutionally excessive or cruel and unusual.

Defendant also does not specify in what respects the trial court failed to comply with CCrP Art. 894.1. Defendant had prior felony and misdemeanor convictions and was made aware of the consequences of his guilty plea and the mandatory minimum sentence when he pleaded guilty. He was not eligible for a suspended or lesser sentence, even should one have been available. The record and the PSI that was before the trial court strongly supports the sentence. See State v. Smith, 433 So.2d 688 (La.1983); State v. Hammonds, 434 So.2d 452 (La.App. 2d Cir.1983), writ denied.

Under these circumstances, we find nothing unconstitutional and nothing statutorily in error in the trial court’s imposition of the 10-year minimum sentence required by the statute.

Accordingly, defendant’s sentence is AFFIRMED.

      . If a defendant seeks to have a statute declared unconstitutional on the basis that it imposes an "excesive” [minimum] sentence, he may do so by filing a motion to quash before commence-merit of trial (CCrP Art. 353) or by filing a motion for arrest of judgment before sentence (CCP Arts. 861, 859). While a fundamental insufficiency such as the unconstitutionality or invalidity of a penal statute may be raised at later stages of the proceedings, even on appeal, the belated motion to quash or motion in arrest must allege or specify distinctly the ground on which the motion is based. CCrP Arts. 536, 860. See City of Baton Rouge v. Norman, 290 So.2d 865 (La.1974), and authorities therein.
      A sentence, of course, is appealable on the general grounds of excessiveness (State v. Sepulvado, 367 So.2d 762 (La. 1979)). The attack here is on the statute, however, and we cannot uphold appellant’s broadside attack that the Legislature is without constitutional authority to require the imposition of a minimum sentence of 10 years at hard labor for the crime of DWI fourth offense. Compare State v. Sigler, 396 So.2d 1305 (La.1981); State v. Stewart, 325 So.2d 828 (La.1976), cert. denied, 425 U.S. 997, 96 S.Ct. 2213, 48 L.Ed.2d 822.