author: PEATROSS, J.

text:
    Lynn MORGAN, Plaintiff-Appellant v. GLAZERS WHOLESALE DRUG COMPANY, Defendant-Appellee.
    No. 46,692-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 2011.

      Robert M. Hanna, for Appellant.
    Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell, LLP, Shreveport, LA, by Robert A. Dunkelman, Jerald L. Perlman, for Appellee.
    Before PEATROSS, DREW & LOLLEY, JJ.
   PEATROSS, J.

hln this workers’ compensation case, the claimant, Lynn Morgan, appeals a judgment of the Workers’ Compensation Judge (“WCJ”) finding that he failed to prove by clear and convincing evidence that he is permanently and totally disabled and declining to rule on the issue of entitlement to supplemental earnings benefits (“SEBs”). For the reasons stated herein, we affirm.

FACTS

Mr. Morgan was injured in 2002 while rebuilding a 2-liter soda case display during his employment with Glazer Wholesale Drug Co. (“Glazer”). The injury was undisputed by Glazer and Mr. Morgan began receiving total temporary disability benefits (“TTDs”) following the accident. He underwent a microdiscectomy of a ruptured vertebral disk by Dr. Pierce Nunley, but continues to have chronic pain in his back and is under the care of pain management specialist Dr. Kathleen Majors. Mr. Morgan takes a variety of narcotic pain medications daily, including Oxycodone. At least one physician recommended weaning Mr. Morgan off of the most potent of the narcotic pain medications. A reading of the transcript reveals, however, that Mr. Morgan desires to continue the narcotic pain management therapy under Dr. Majors and appeared heavily medicated on the date of the hearing in this matter. As a result of the chronic pain, Mr. Morgan apparently suffers from depression and received an evaluation and medication from a psychiatrist at LSUHSC. Notably, in 2006, Dr. Nunley recommended a fusion surgery, which Mr. Morgan declined.

12After receiving TTDs for approximately eight years, Mr. Morgan filed the instant Disputed Claim for Compensation form seeking “a determination by the OWC that he is permanently and totally disabled” pursuant to La. R.S. 23:1221(2). Mr. Morgan’s TTD benefits were soon to expire-after 520 weeks of benefits.

The matter was tried on August 10, 2010. Mr. Morgan testified at the hearing and his medical records, as well as physicians’ depositions, were introduced. Following the hearing, the WCJ deferred ruling and ordered vocational rehabilitation assessments, which were completed and filed into the record. The WCJ ultimately found that Mr. Morgan was able to work but for his chronic pain. The WCJ ruled, therefore, that Mr. Morgan had failed to prove he was permanently and totally disabled. The WCJ declined to rule on Mr. Morgan’s entitlement to SEBs, stating in his written reasons for judgment that the court had “not been asked to resolve that issue.” Mr. Morgan’s claim was dismissed with prejudice. This appeal ensued.

DISCUSSION

On appeal, Mr. Morgan raises the following assignments of error:

1. The WCJ’s judgment finding that Mr. Morgan was unable to work only because of his chronic pain, without considering the effects of Mr. Morgan’s accident-related mental injury, was manifestly erroneous and clearly wrong.
2. The WCJ’s failure to decide whether Mr. Morgan is entitled to Supplemental Earnings Benefits, which is encompassed in the sole issue presented to the court, nature and extent of claimant’s disability, is the result of legal error, and the legal error was prejudicial to claimant’s case.
3. The WCJ’s failure to incorporate the stipulation of the parties regarding the defendant’s payment of Temporary Total | .^Disability benefits into the judgment was an abuse of discretion, was legal error, and the legal error was prejudicial to claimant’s case.

Permanent Total Disability

The relevant provisions regarding permanent total disability are found in La. R.S. 23:1221(2), which states, in pertinent part:

(a) For any injury producing permanent total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds percent of wages during the period of such disability.
(b) For purposes of Subparagraph (2)(a) of this Paragraph, compensation for per manent total disability shall not be awarded if the employee is engaged in any employment or self-employment regardless of the nature or character of the employment or self-employment including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain.
(c) For purposes of Subparagraph (2)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subpar-agraph (2)(b) of this Paragraph, compensation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.

Thus, a workers’ compensation claimant seeking permanent total disability benefits bears the burden of proving, by clear and convincing evidence, his inability to engage in any type of employment. Frye v. Olan Mills, 44,192 (La.App.2d Cir.4/8/09), 7 So.3d 201, citing Greis v. Lake Charles Memorial Hospital, 97-1258 (La.App. 3d Cir.3/6/98), 709 So.2d 986, writs denied, 98-0937 & 98-0939 (La.5/15/98), 719 So.2d 467.

Whether the claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the WCJ. Harris v. Casino Magic, 38,137 (La.App.2d Cir.1/28/04), 865 So.2d 301, writ denied, 04-0502 (La.4/8/04), 870 So.2d 275. The factual findings of the WCJ are subject to the manifest error standard of appellate review. Dean v. Southmark Const., 03-1051 (La.7/6/04), 879 So.2d 112. The appellate court does not determine whether the WCJ’s factual findings and credibility calls are right or wrong, but only whether they are reasonable. Buxton v. Iowa Police Dept., 09-0520 (La.10/20/09), 23 So.3d 275. The manifest error standard applies even when the WCJ’s decision is based upon written reports, records or depositions. Bruno v. Harbert Int'l, Inc., 593 So.2d 357 (La.1992); Alexander v. Brookshire Grocery Co., 42,855 (La.App.2d Cir.1/9/08), 975 So.2d 100, writ denied, 08-0503 (La.4/25/08), 978 So.2d 367.

When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel its own inferences and evaluations are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989). Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State, Department of Transportation and Development, 617 So.2d 880 (La.1993).

|sAs a general rule, the testimony of a treating physician should be accorded greater weight than that of a physician who examines a patient only once or twice. Frye v. Olan Mills, supra. The treating physician’s testimony is not irrebuttable, however, and the trier of fact is required to weigh the testimony of all medical witnesses. Id., citing Mosley v. Pennzoil Quaker State, 37,199 (La.App.2d Cir.7/23/03), 850 So.2d 1100, writ denied, 03-2412 (La.11/21/03), 860 So.2d 553.

Following the 1983 amendments to the workers’ compensation statute, evidence that an employee could not return to any gainful employment without suffering substantial pain is no longer sufficient to support an award of permanent total disability benefits. Bank of Winnfield and Trust Co. v. Collins, 31,473 (La.App.2d Cir.2/24/99), 736 So.2d 263.

In the case sub judice, Mr. Morgan suffered a back injury and had one back surgery to repair a ruptured disk. As previously noted, Dr. Nunley suggested a second surgery, but Mr. Morgan was not receptive to that plan of treatment. Instead, Mr. Morgan opted for continued pain management treatment with Dr. Majors. In written reasons for ruling, the WCJ noted that “all three of the physicians whose depositions are in evidence agree that Mr. Morgan’s disability stems from his pain, and not from any underlying physical condition.” Most significantly, Dr. Majors, Mr. Morgan’s treating physician, opined that Mr. Morgan was unable to work, but she agreed that it was Mr. Morgan’s pain that was preventing him from re-entering the work force.

| fiThe WCJ also relied on the deposition testimony of Dr. Randall Brewer, who performed an IME on Mr. Morgan. While Dr. Brewer opined that Mr. Morgan did not appear able to work at the time of his examination, he described Mr. Morgan as having fallen into the “disability role,” which Dr. Brewer explained as follows:

[Mr. Morgan] has not returned to work despite, you know, many attempts at therapy, including the uses of injection and surgery as well as, you know, treatment for his depression and seems to have become fixed or intrenched (sic) in to the disability role insofar as he’s not severely, physically disabled but he’s still unable to work despite all of his treatment. So that’s to me a disability role—
And I didn’t see evidence that he had a high level of motivation to return to work, to sort of do whatever it takes to go back to work. I did not — I did not get that sense from him. He — you know, if you think you can, you can, right. If you don’t, you don’t and you can’t.
So I didn’t get the sense from him that he felt like he could go back to work, that he had enough self confidence, enough confidence in his treating providers, enough confidence in his disability system. You know, he’s — that’s the disability role that I see. What whatever the ultimate core issue is there, I’m not sure of. But [Mr. Morgan] did not impress me that he was ready to go back to work, and there’s no physical explanation outside of pain for that. So that’s a disability role.

According to Dr. Brewer, Mr. Morgan was not “physically disabled,” nor did he have a “debilitating condition.” Dr. Brewer recommended weaning Mr. Morgan off the narcotic medications and in-patient rehabilitation treatment such as that offered at the Mayo Clinic and the possibility of a spinal cord stimulator to alleviate pain. He did not believe that Mr. Morgan would progress or improve without the assistance of a rehabilitation program. Mr. Morgan was not receptive to any of these options.

17Pr. Carl Goodman, an expert in orthopedic and spinal surgery, saw Mr. Morgan on three occasions and testified by deposition. Dr. Goodman’s initial evaluation was an IME of Mr. Morgan in 2003 following the accident, wherein he concurred with the recommendation for lumbar surgery. Dr. Goodman then saw Mr. Morgan in December 2003, six months postoperative, at which time he concluded that Mr. Morgan was at maximum medical improvement. While Dr. Goodman deferred to an FCE, he opined that Mr. Morgan could do light duty work at that time. Dr. Goodman next saw Mr. Morgan in February 2010. Based solely on Mr. Morgan’s complaints of pain, Dr. Goodman made a notation in his records of the February 2010 examination that Mr. Morgan was unable to work. Dr. Goodman expressly testified that, in his opinion, Mr. Morgan’s alleged inability to work was based solely on complaints of pain.

Attached to Dr. Goodman’s deposition was the report of Dr. Phillip Osborne, an occupational medicine specialist, who conducted an FCE on Mr. Morgan in February 2004. During the evaluation, Mr. Morgan completed only the step test; he “simply would not do the other testing” and Dr. Osborne noted that he was not getting proper effort from the patient as per guidelines. Thus, Dr. Osborne was constrained to attribute only light duty restrictions to Mr. Morgan. With a normal EMG and no findings of radiculopathy, Mr. Morgan was classified as a Category II with five percent impairment of function under the American Medical Association Guides to the Evaluation of Permanent Impairment. In Dr. Osborne’s opinion, Mr. Morgan could “do most any light duty job.”

|sIn addition, Mr. Morgan testified as follows:

Q: Mr. Morgan, based on your understanding of your current condition and your current symptoms, do you feel there is any kind of work that you can do?
A: No. I wouldn’t know, I mean, my pain let me know that nothing I can do, you know.
Q: Mr. Morgan, you don’t think you could do a job that you would have to sit for a little while and then you could get up and take stretch breaks?
A: Well, it probably could be done but I don’t think I would be able to do it because of my pain is what I’m saying. I’m in tremendous pain, you know I’m saying. And my pain won’t let me do what’s to be done, you know, thinking of it. My injury is not a little injury for me.

Following our review of the testimony and documentary evidence in this case, we find no manifest error in the WCJ’s conclusion that Mr. Morgan failed to prove by clear and convincing evidence that he is permanently totally disabled. Clear and convincing evidence is an intermediate standard of proof that is more than a preponderance of the evidence, but less than proof beyond a reasonable doubt. Traweek v. City of West Monroe, 30,571 (La.App.2d Cir.5/13/98), 713 So.2d 655, writ denied, 98-1936 (La.11/6/98), 727 So.2d 449. The record before us simply does not contain clear and convincing evidence of permanent and total disability. The evidence overwhelmingly reveals that Mr. Morgan’s complaints of pain are keeping him from working. In addition, Mr. Morgan was twice evaluated by licensed rehabilitation counselors. The Vocational Activity Report completed by Tracy Richardson in 2004 concludes that Mr. Morgan was employable and capable of light duty work at that time. [ 9On the other hand, Richard Galloway evaluated Mr. Morgan on September 17, 2010, and concluded that, although Mr. Morgan can perform sedentary functions, “there would be no jobs existing in the local or regional economy that Mr. Morgan could be expected to perform on a day-to-day basis.”

Again, complaints of pain alone are insufficient to support permanent and total disability and the evidence of record provides a reasonable basis for the WCJ’s conclusion that Mr. Morgan can work, but for his subjective complaints of pain. Bank of Winnfield and Trust Co. v. Collins, supra.

Mr. Morgan also argues that the WCJ erred by not awarding him permanent total disability status based on a mental injury, i.e., his depression, stemming from his work-related injury. We first note that this alleged mental injury was not argued to the WCJ as a basis for permanent disability. In any event, we will discuss the relevant evidence found in the record concerning Mr. Morgan’s depression secondary to his chronic pain.

Dr. Majors referred Mr. Morgan for psychiatric evaluation at LSUHSC due to his violation of the narcotics contract, ie., he overused the narcotic pain medication Percocet due to breakthrough episodes of pain. Mr. Morgan was evaluated by Dr. R. Kent Dean, a specialist in addictive medicine, who found Mr. Morgan to be “mildly anxious and depressed.” Dr. Dean’s commentary to Dr. Majors indicates that he has “no concern about Mr. Morgan’s emotional state” and that the antidepressant medications had improved and/or resolved his symptoms of depression. The only other psychiatric evidence in the record consists of several | inoutpatient visits to LSUHSC. In any event, we do not find this evidence to provide a sufficient basis to support an award of permanent and total disability status to Mr. Morgan based on his alleged mental injury.

La. R.S. 23:1021(8)(b), (c) and (d) address mental injury sustained by employees, as follows:

(b)Mental injury caused by mental stress. Mental injury or illness resulting from work-related stress shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter, unless the mental injury was the result of a sudden, unexpected, and extraordinary stress related to the employment and is demonstrated by clear and convincing evidence.
(c) Mental injury caused by physical injury. A mental injury or illness caused by a physical injury to the employee’s body shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence.
(d) No mental injury or illness shall be compensable under either Subparagraph (b) or (c) unless the mental injury or illness is diagnosed by a licensed psychiatrist or psychologist and the diagnosis of the condition meets the criteria as established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders presented by the American Psychiatric Association.

There is no dispute, and the WCJ acknowledged, that Mr. Morgan suffers from depression to some degree stemming from his injury and resulting disability. The record, however, contains no evidence that depression is the cause of Mr. Morgan’s alleged inability to re-enter the work force. Indeed, Mr. Morgan’s above-quoted testimony placed the cause of his alleged inability to work on his pain. Neither of the vocational evaluations cited a mental injury or condition as a basis for concluding that Mr. Morgan was |nunable to find employment. Finally, Mr. Morgan presented no medical opinion that a mental injury was causing his alleged inability to work. Furthermore, there was no evidence presented that Mr. Morgan’s diagnosis meets the criteria of the American Psychiatric Association. We, therefore, find this argument to be without merit.

Failure to Determine entitlement to SEBs

As previously stated, Mr. Morgan was receiving TTDs, and had been for eight years, at the time he filed the current disputed claim for compensation. The stated purpose of the disputed claim was to determine whether he was permanently and totally disabled, which would allow him to continue to receive benefits past the 520-week TTD limitation. From reading the various colloquies among the attorneys and the WCJ regarding what was to be determined at the hearing, we glean that all parties agreed that Mr. Morgan was entitled to some level of benefits. In the event Mr. Morgan was found to be not permanently and totally disabled, it is apparent from the discussion on the record that all parties intended that he would continue to receive TTDs until the expiration of 520 weeks. The issue of entitlement to SEBs was not placed before the WCJ, as Mr. Morgan was currently receiving TTDs and would continue to receive TTDs under the ruling of the WCJ, providing he was still within the 520-week limit. Any further or additional benefits require refiling on the part of Mr. Morgan.

112iStipulation of the Parties

In his third assignment of error, Mr. Morgan argues that the WCJ erred by refusing to incorporate the “stipulations” of the parties regarding his receipt of TTDs in the final judgment. The record contains a clear recitation of undisputed facts by the respective attorneys. Mr. Morgan was, by agreement, receiving TTDs at the time of the filing of his disputed claim. The payment of those benefits was not before the WCJ, nor is it before this court. The judgment in no way prejudices Mr. Morgan by its failure to list his receipt of TTDs as a stipulated fact.

CONCLUSION

For the foregoing reasons, the judgment of the Workers’ Compensation Judge finding that the claimant, Lynn Morgan, is not entitled to permanent and total disability benefits is affirmed at the cost of Mr. Morgan.

AFFIRMED.


source: Caselaw Access Project

author: PAINTER, Judge.

license: Public Domain

text:
    Donald BRUNT v. Lisa Ostic ABERNATHY.
    No. 11-705.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2011.
    Rehearing Denied Dec. 21, 2011.

      David C. Hester, Attorney at Law, Alexandria, LA, for Plaintiff/Appellee, Donald Brunt.
    Jennifer Matte, Attorney at Law, Lake Charles, LA, for Defendant/Appellant, Lisa Ostic Abernathy.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

_JjLisa Ostic Abernathy appeals the judgment of the trial court awarding joint custody of the minor child, designating Donald Brunt as the domiciliary parent subject to her visitation, and failing to give full faith and credit to the judgment issued in her favor in Oklahoma. For the following reasons, we remand the matter to the trial court to communicate with the Oklahoma court.

FACTS AND PROCEDURAL HISTORY

The parties are the parents of a minor child, born January 15, 2006, custody of whom is disputed in this matter. The parties were divorced in Oklahoma in 2007, and an Oklahoma judgment gave them joint custody with the mother, Lisa Ostic Abernathy, being designated “primary caretaker.” Custody was to be on a six month rotation until the child started school. The father, Donald Brunt, is in the military and is currently stationed at Fort Polk, Louisiana.

Abernathy alleges that Donald failed to return the child to her custody on May 29, 2010, following a visit which took place in Alaska. Donald alleges that Lisa failed to show up for the exchange and that she currently has no permanent residence. Donald also alleges that Lisa gave physical custody of the child to him on September 25, 2009, in Colorado. Abernathy did sign a handwritten note stating that Brunt and his wife, Nathaly, had permission to take the child to Alaska, to be returned to Abernathy on May 29, 2010.

Donald filed this rule for custody in Vernon Parish on August 19, 2010, and this rule referenced the consent judgment as to custody rendered in Oklahoma. Lisa filed an answer in Vernon Parish and did not object to subject matter jurisdiction. Lisa also filed a petition for habeas corpus in Oklahoma and obtained same on September 3, 2010. Donald alleges that this writ was never served on him. A trial, at which Lisa was present but unrepresented by counsel, occurred on |2November 8, 2010. At that time, the trial court found that Louisiana was the child’s home state since the child had been living in Louisiana over a year. The court awarded joint custody of the child, with Donald being named domiciliary parent subject to the child’s visitation with Lisa. The judgment was signed on January 3, 2011. Lisa filed a motion for appeal, and Donald filed a motion to dismiss the appeal on the ground that the motion for appeal was untimely. Lisa then filed an exception of lack of subject matter jurisdiction. The trial court denied Donald’s motion to dismiss appeal and granted Lisa’s motion for appeal. With respect to Lisa’s exceptions as to subject matter jurisdiction, the trial court denied these exceptions, finding that Louisiana is the child’s home state and that Lisa acquiesced to jurisdiction in Louisiana.

On appeal, Lisa asserts that the trial court erred in failing to give full faith and credit to the Oklahoma judgment and should have declined jurisdiction in Louisiana.

DISCUSSION

In Otwell v. Otwell, 10-1176, pp. 2-4 (La.App. 3 Cir. 2/9/11), 56 So.3d 1232, 1233-35, this court stated:

A most basic tenet of our law is a court’s power to hear an action before it. “Jurisdiction is the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties, and to grant the relief to which they are entitled.” La.Code Civ.P. art. 1. Subject matter jurisdiction is “the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted.” La. Code Civ.P. art. 2. “The jurisdiction of a court over the subject matter of an action or proceeding cannot be conferred by consent of the parties. A judgment rendered by a court which has no jurisdiction over the subject matter of the action or proceeding is void.” La.Code Civ.P. art. 3. The issue of whether a court has subject matter jurisdiction can be raised at any time and by the court on its own motion. Boudreaux v. State, Dept. of Transp. and Development, 01-1329 (La.2/26/02), 815 So.2d 7. Furthermore, the court has the duty to examine subject matter jurisdiction sua sponte, even if the litigants have not raised the Isissue. Id. Whether a district court has subject matter jurisdiction over a case is subject to a de novo review. Hartman v. Lambert, 08-1055 (La.App. 3 Cir. 2/04/09), 7 So.3d 758.

The Uniform Child Custody Jurisdiction and Enforcement Act, found in La. R.S. 13:1801 et seq., effective August 2007, pertains to this litigation. Particularly applicable to these circumstances is La.R.S. 13:1815 which applies to the jurisdiction of a Louisiana court to modify the determination of another court (emphasis added):

Except as otherwise provided in R.S. 13:1816, a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under R.S. 13:1813(A)(1) or (2) and:
(1) The court of the other state determines it no longer has exclusive, continuing jurisdiction under R.S. 13:1814 or that a court of this state would be a more convenient forum under R.S. 13:1819;
(2) A court of this state or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.

Louisiana Revised Statutes 13:1813 pertains to an initial determination of child custody and states:

A. Except as otherwise provided in R.S. 13:1816, a court of this state has jurisdiction to make an initial child custody determination only if:
(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state, or had been the child’s home state within twelve months before commencement of the proceeding and the child is absent from the state because he was required to leave or was evacuated due to an emergency or disaster declared under the provisions of R.S. 29:721 et seq., or declared by federal authority, and for an unforeseen reason resulting from the effects of such emergency or disaster was unable to return to this state for an extended period of time.
(2) A court of another state does not have jurisdiction or a court of the home state of the child has |4declined to exercise jurisdiction on the ground that this state is the more appropriate forum under R.S. 13:1819 or 1820; and
(a) The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence.
(b) Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships.
(3)All courts having jurisdiction have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under La.R.S. 13:1819 or 1820; or
(4)No court of any other state would have jurisdiction under the criteria specified in Paragraph (1), (2), or (3) of this Subsection.
B. Subsection A of this Section is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
C. Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.

Under the express terms of this statute, a Louisiana court does not have subject matter jurisdiction over a custody issue if another state has rendered a child custody determination. Honei argues that because Louisiana is the “home state” of the children, a Louisiana court had subject matter jurisdiction to modify the order. This argument fails. When a custody determination has been issued by another state, a Louisiana court does not have jurisdiction unless the other state has determined that it no longer has jurisdiction or that the Louisiana court would be a more convenient forum. La.R.S. 13:1815(1). See Hughes v. Fabio, 07-1008 (La.App. 5 Cir. 3/25/08), 983 So.2d 946. Honei fails to distinguish that it is the court of the state that has already issued a child custody order that must determine if the other forum is more convenient. There is simply no indication in the record that a Georgia court has determined that it no longer has jurisdiction or that Louisiana would be a more convenient forum. Accordingly, the trial court erred in exercising subject matter jurisdiction over the child custody issues and that portion of the judgment is void.

|sHere, there is ample evidence that Louisiana is a more convenient forum than Oklahoma since no one currently resides in Oklahoma. However, there is no evidence that the Oklahoma court has determined that it no longer has jurisdiction. As in Otwell, it is the court of the other state, Oklahoma, that must determine that Louisiana is the more convenient forum.

However, in this instance, we find that La.R.S. 13:1816 providing for temporary emergency jurisdiction is applicable. That statute reads:

A. A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.
B. If there is no previous child custody determination that is entitled to be enforced under this Act and a child custody proceeding has not been commenced in a court of a state having jurisdiction under R.S. 13:1813 through 1815, a child custody determination made under this Section remains in effect until an order is obtained from a court of a state having jurisdiction under R.S. 13:1813 through 1815. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under R.S. 13:1813 through 1815, a child custody determination made under this Section becomes a final determination, if it so provides and this state becomes the home state of the child.
C. If there is a previous child custody determination that is entitled to be enforced under this Act, or a child custody proceeding has been commenced in a court of a state having jurisdiction under R.S. 13:1813 through 1815, any order issued by a court of this state under this Section shall specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under R.S. 13:1813 through 1815. The order issued in this state remains in effect until an order is obtained from the other state within the period specified or the period expires.
D.A court of this state which has been asked to make a child custody determination under this Section, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by a court of a state having jurisdiction under R.S. 13:1813 through 1815, shall immediately communicate with the other court. A court of this state which is exercising jurisdiction pursuant to R.S. 13:1813 through 1815, upon being informed that a child custody proceeding has been commenced in, or a |r,child custody determination has been made by a court of another state under a statute similar to this Section shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.

We find that the evidence is sufficient to warrant temporary emergency jurisdiction under subsection A. However, the order issued by the trial court should have contained a time period for the mother to obtain an order from the Oklahoma court. Moreover, this statute also requires the trial court to communicate with the Oklahoma court, and we find no evidence that this was done or that Oklahoma has determined that it no longer has jurisdiction. We agree with the trial court that Louisiana is now the home state of the minor child; however, we are forced to remand this matter for compliance with La.R.S. 13:1816 and for a determination by the Oklahoma court as to its jurisdiction. Custody of the minor child with Brunt is maintained pursuant to temporary emergency jurisdiction, pending the trial court’s compliance with La.R.S. 13:1816.

DECREE

For all of the foregoing reasons, we remand this matter to the trial court for compliance with La.R.S. 13:1816. Costs are assessed equally between the parties.

REMANDED.


text:
    Tynirsha W. RHINE v. BAYOU PIPE COATING, et al.
    No. CA 11-724.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2011.
    Rehearing Denied Dec. 21, 2011.

      Raymond Morgan Allen, Lafayette, LA, Morgan J. Wells, Jr., Metairie, LA, for Defendants/Appellants, The Bayou Companies, LLC and the Gray Insurance Company.
    Kenneth W. Jacques, New Orleans, LA, Louis R. Koerner, Jr., Houma, LA, for Plaintiffs/Appellees, Tynirsha W. Rhine, Individually and On Behalf of the Minor Children, Melvin Rhine, III, and Ty’Nise Latori Rhine and Kendra Johnson on behalf of the minor child, Keyshawn Johnson.
    Court composed of ULYSSES GENE THIBODEAUX, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| defendants, the Bayou Companies, LLC (Bayou) and its insurer, the Gray Insurance Company, appeal the judgment of the trial court finding them at fault in connection with the death of their employee, Melvin Rhine, and awarding damages to his wife and children as a result. Finding no error in the trial court judgment, we affirm.

FACTS

Melvin Rhine, Jr. was killed on July 15, 2003, while performing his regular work duties as a taper for the Bayou Companies, LLC.

In 1999, Bayou contracted with Bauhuis, USA to design, manufacture, and install a pipe coating plant for the purpose of wrapping joints of pipe with concrete to give the pipe negative buoyancy so it could be used underwater. The pipe coating plant was originally designed so that the first section would wrap one inch of concrete around the joint and the second section would impinge, or blow, the remaining inches of concrete onto the joint. After the joints were coated, thick sheet plastic was mechanically wrapped around the joint to hold the wet cement in place during the curing process. Once the plastic was applied to the joints, workers manually applied tape around the plastic to hold it in place during the cement curing process. The joints of pipe moved through the cementing process on a spiral conveyor at the inbound section which rotated the joints and pushed them toward the cement coating process. After the cement was applied, the joints were supported and rotated by five separate belt head conveyors which were spaced approximately 4-5 feet apart. None of the belt head conveyors designed, manufactured, and installed by Bauhuis had side guarding. Installation of the pipe coating plant was complete in January 2000.

Between October 2000 and March 31, 2001, Bayou decided to remove the impingement section and use only the wrap method to apply concrete to the joints of pipe. Bayou supplemented the Bauhuis belt heads with a locally-built belt head copied from the Bauhuis belt heads. After the impingement method was abandoned, taping [Rwas done immediately after the plastic was applied. Rhine died when he was caught between and pulled into the rotating pipe and the belt of the newest belt head conveyor which had been installed by Bayou employees.

Tynirsha W. Rhine, wife of the deceased, filed an intentional tort action against Bayou both individually and on behalf of the minor children, Melvin Rhine, III, and Ty’Nise Latori Rhine. Kendra Johnson brought suit on behalf of Keyshawn Johnson, the deceased’s child born of a relationship with her. In addition to Bayou, Plaintiffs named Gray Insurance Company, Bauhuis Group, Bauhuis International, B.V., and B <& L Bauhuis, USA, Inc. (collectively Bauhuis) as Defendants.

After a trial on the merits, the trial court rendered judgment in favor of Plaintiffs, apportioning fault 50% to Bayou and the Gray Insurance Company, 50% to Bau-huis, and awarding damages as follows:

1. In favor of Tynirsha Rhine, individually and on behalf of the minor children, Mervin Rhine, III and Ty’Nise Rhine for past loss of support in the amount of $173,006. $173,006.

2. In favor of Kendra Johnson, on behalf of her minor child, Keyshawn Johnson, for past loss of support in the amount of $20,400. $ 20,400.

3. In favor of Tynirsha Rhine, individually and on behalf of the minor children, Melvin Rhine, III and Ty’Nise Rhine for future loss of support in the amount of $946,927. $946,927.

4. In favor of Kendra Johnson, on behalf of her minor child, Keyshawn Johnson, for future loss of support in the amount of $27,488 from May 1, 2010 until Keyshawn reaches 22 years of age. $ 27,488.

5. In favor of Tynirsha Rhine for funeral expenses in the amount of $7,750.6$7,750.

6. In favor of Tynirsha Rhine for loss of consortium in the amount of $500,000. $500,000.

7. In favor of Tynirsha Rhine on behalf of the minor child, Melvin Rhine, III, for loss of consortium in the amount of $400,000. $400,000.

138. In favor of Tynirsha Rhine, on behalf of the minor child, Ty’Nise Rhine for loss of consortium in the amount of $300,000. $300,000.

9. In favor of Kendra Johnson, on behalf of her minor child, Keyshawn Johnson, for loss of consortium in the amount of $300,000. $300,000.

12,500. 10. In favor of Tynirsha Rhine for survival damages in the amount of $12,500. ⅛⅝

12,500. 11. In favor of Tynirsha Rhine, on behalf of the minor child, Melvin Rhine, III, for survival damages in the amount of $12,500. ⅜⅝

12,500. 12. In favor of Tynirsha Rhine, on behalf of the minor child, Ty’Nise Rhine for survival damages in the amount of $12,500.

12,500. 13. In favor of Kendra Johnson, on behalf of her minor child, Keyshawn Johnson, for survivor damages in the amount of $12,500. ⅜⅞

TOTAL AWARD $2,725,571.00

Bayou and the Gray Insurance Company appeal.

DISCUSSION

Testimony of Plaintiffs’ Expert, Robert Borison

Defendants assert that the trial court erred in failing to disqualify Plaintiffs’ expert, Robert Borison, pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and in allowing him to testify as to Bayou’s intent, subjective knowledge, and state of mind with regard to the accident. Defendants argue that the Daubert hearing held by the trial court was flawed in that the trial court failed to determine the scientific basis for Borison’s opinions.

A trial judge has wide discretion in determining whether to allow a witness to testify as an expert, and this includes the determination of how much and what kind of education and/or training adequately qualify an individual as an expert, and his judgment will not be disturbed by an appellate court unless it is clearly erroneous. Abshire v. Wilkenson, 2001-0075 (La.App. 3 Cir. 5/30/01), 787 So.2d 1158. The court need not determine that the expert testimony a litigant seeks to offer into evidence is irrefutable or certainly correct. Keener v. Mid-Continent Casualty, 01-1357, p. 12 (La.App. 5 Cir. 4/30/02), 817 So.2d 347, 354-355[, writ denied, 02-1498 (La.9/20/02), 825 So.2d 1175]. As with all other ^admissible evidence, expert testimony is subject to being tested by “vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.” Id. (citing Daubert, 509 U.S. at 596, 113 S.Ct. at 2798). As the jurisprudence indicates, there is a crucial difference between questioning the methodology employed by an expert witness, and questioning the application of that methodology or the ultimate conclusions derived from that application. Only a question of the validity of the methodology employed brings Daubert into play.

Tadlock v. Taylor, 02-0712, pp. 4-5 (La.App. 4 Cir. 9/24/03), 857 So.2d 20, 26, writ denied, 03-3265 (La.3/12/04), 869 So.2d 819.

At the Daubert hearing, counsel for Defendants questioned Borison extensively as to the scientific basis for the opinions set out in his report. After the hearing, the trial court gave the following oral reasons:

[Counsel for Defendant’s] point is that the expert, Mr. Borison, has taken no courses which support[ ] his opinion that this accident was inevitable or it was certain to happen or it was intentional. I don’t know what courses he could have taken to make that sole statement, okay? The only thing I know of that would provide that, I guess, would be a psychologist because of his experience and his education or a lie detector. Those things direct themselves to truth of a statement, okay? So he hasn’t done either of those things.
However, Mr. Borison in this case is an expert witness. His expertise is in safety. His expertise is in accident investigation. His expertise is in guarding equipment, in designing guards for equipment, and in safe operations of equipment in industrial situations. And that’s what he’s going to testify to in his expertise. Those things certainly, in my opinion, are relevant because, though the Court has a lot of experience in dealing with various kinds of accidents and those kind of things, the Court can be helped by his testimony in regards to the happening of accidents with guards or without guards, happening of accidents at pinch points or not at pinch points. And of course his testimony goes to the fact that — and also his experience with OSHA and safety shows the real problems and difficulties and probabilities of accidents at pinch points.
Now I know probability doesn’t satisfy the criteria, okay? And I’m not saying that, if he only establishes probability, he meets the criteria. But I think the study of probability could lead one who deals with those incidents to be able to reach an opinion as to the inevitability of that type of accident happening. And he may know that. And I think he’s had sufficient experience and training to know that, because he’s designed guards, he’s investigated accidents, he’s familiar with pinch points, and so that he can relate different types of situations and the danger arising from those sitúa-tions to an individual because of his experience. That can lead the Court to be able to make the opinion the Court needs to make, if it makes it, of whether the accident was substantially certain to happen or ]awhether it was inevitable, whether it was intentional or whether it was just negligent.
So, though he hadn’t taken a specific course to be able to say maybe to give the ultimate opinion, I find that he has the expertise through his training and experience to be able to assist the Court in what’s dangerous, what’s not dangerous, and how dangerous things are, and his experience in how dangerous they are, related to whether there are guards or no guards and the type of accidents that have happened. So, in that sense, I find that he can express his opinion as an expert in the case. And I find that he’s qualified.

The trial court made clear that while it was aware that Borison could not give the ultimate opinion as to whether the accident was substantially certain, it felt that experience and training qualified Borison to give opinions as to what was dangerous and how dangerous the work place was. Given the trial court’s determination that the expert testimony would help it understand the evidence or determine a factual issue, we find that the decision to allow Borison to testify was within its wide discretion, especially since this was a bench trial. See Benoit v. Turner Indus. Group, LLC, 10-1460 (La.App. 3 Cir. 5/4/11), 63 So.3d 443, Holzenthal v. Sewerage & Water Bd. Of New Orleans, 06-796 (La.App. 4 Cir. 1/10/07), 950 So.2d 55, writ denied, 07-294 (La.3/30/07), 953 So.2d 71.

Intentional Tort

Defendants further assert that the trial court erred in finding that the intentional tort exception to the workers’ compensation act was applicable. It is their position that the facts of the case do not rise to the level of an intentional tort. This court recently explained:

If an employee is found to be in the course and scope of his employment when he is injured and the employer invokes the defense of tort immunity, the employee’s remaining recourse against his employer is a claim for intentional tort. La.R.S. 23:1033.
The Louisiana Supreme Court in Batiste v. Bayou Steel Corp., 10-1561, pp. 2-3 (La.10/1/10), 45 So.3d 167, 168-69, discussed the factors involved in proving an intentional act so as to escape the coverage of the workers’ compensation act.
h,In order to recover in tort against Bayou Steel under La. R.S. 23:1032(B), plaintiffs must prove Mr. Batiste’s injury resulted from an “intentional act.” In Bazley v. Tortorich, 397 So.2d 475 (La.1981), we explained an intentional act requires the actor to either (1) consciously desire the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) know that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result.

Hebert v. Richard, 10-1417, p. 16 (La.App. 3 Cir. 7/6/11), 72 So.3d 892, 903. Here, as in Batiste, Plaintiffs do not allege that Bayou consciously wanted to cause harm to the deceased. Rather, they assert that the deceased’s injuries were substantially certain to follow from Bayou’s conduct.

Although Defendants assert that Bayou’s conduct does not rise to the level of an intentional tort as a matter of law and that the trial court committed legal error, we must apply a manifest error standard of review.

Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous. When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

Robinson v. N. Am. Salt Co., 02-1869, pp. 8-9 (La.App. 1 Cir. 6/27/08), 865 So.2d 98, 105, writ denied, 03-2581 (La.11/26/03), 860 So.2d 1139.

The trial court first reviewed the law with regard to the application of the intentional tort exception to the exclusive remedy rule of the Louisiana Worker’s Compensation Act, noting that:

[A]ll of the negligence which was brought out in the trial of the Manager and Safety Personnel of the cement plant at Bayou is not relevant to recovery under the intentional tort exception of the Compensation Act. There is a substantial amount of evidence which would support |7negligence and even gross negligence, however, which is not satisfactory to come within the intentional tort exclusion of the Compensation Act.

The court then outlined the testimony and evidence as well as its reasons for ruling on the intentional tort question, in written reasons for judgment, as follows:

On August 10, 2001, Curley Gilliam was a taper at the cement plant on the conveyor system.... He had been using the taping process since the beginning of this operation. He was holding a roll of tape in his hand and was applying tape with his hand to the visqueen on the turning pipe and allowing the tape to come off of the roll of tape and onto the visqueen on the turning pipe. There was another person taping the opposite side of the pipe. Gilliam was standing on the south side of the pipe with the pipe rotating away from him from bottom to top. The accident to Curley Gilliam occurred when the taper on the opposite side of the pipe had the tape slip out of his hand while he was attempting to tape the pipe and the loose tape wrapped around the wrist of Curley Gilliam on the opposite side of the pipe. Curley Gilliam was pulled over the rotating pipe by the tape and turning pipe. As he was pulled over the turning pipe, however, his foot hit the safety trip wire, which was located about a foot above the turning pipe. When he hit the safety trip wire, that turned off the conveyor and the pipe stopped turning and Curley Gilliam fell to the ground, but was otherwise not seriously injured. He did not fall into any pinch point created by the belt heads, rubber belts and turning pipe. However, in the taping process, he was caught by the tape of the opposite side taper and pulled over the turning pipe as he attempted to tape. The supervising personnel at Bayou had a safety meeting every morning at the cement plant before they began operations. It became a common story at the safety meetings for persons to be careful about putting their hands onto the turning pipe or near the conveyor or pinch points. It was often used as an example, the Cur-ley Gilliam incident, in which the employees were warned to be very careful in working around the turning pipes so the same thing would not happen to them. The Curley Gilliam incident was used as an example by the Safety Director, David Bourgeois, and by the Plant Manager, Bobbie Boffone, and others.
After the Curley Gilliam incident, Bobbie Boffone, Tom Monda and others in the cement plant began giving consideration to the installation of guards on the belt heads and conveyor system in order to protect against the type of accident of the taper, Curley Gilliam. They realized the hazardous nature of the conveyor system and the taping process by the tapers using their hands to place the tape onto the pipe and being in the vicinity of the turning pipe and belt heads and conveyor pulleys. As a result thereof, particularly Tom Monda looked at and considered the installation of guards. Bobbie Boffone also discussed this matter with Tom Monda. However, Tom Monda said they were not able to figure out how to implement the guarding system on the conveyor system, belt heads and pinch points. Since they were not able to figure it out, they did not put up any guards. They allowed the taping process to continue thereafter in the same exact manner.
|sSome twenty-three (28) months later, on July 15, 2003, Melvin Rhine was the taper in the process, but on the opposite side of the pipe from which Curley Gilliam had sustained his accident on August 10, 2001. Melvin Rhine was working in the four (4') foot area designated for the taper on the backside of the pipe. In working that area, he was attempting to tape the pipe by placing the tape with his hand onto the turning pipe and then holding the roll of tape in his hand while the pipe was being taped. In doing so, somehow, the tape caught the glove of Melvin Rhine while he was taping and pulled his right hand, [and] right arm up to his head and shoulders between the pipe and the conveyor belt. (Deputy Bonnie Gunner testimony). The convey- or was subsequently stopped and reversed and Melvin Rhine was taken out of the conveyor system, but he was dead. His roll of tape was also found underneath the pipe, between the pipe and the rubber conveyor belt.
The testimony in the trial establishes that Melvin Rhine had fifteen (15) seconds to tape the first two (2') feet of the beginning of the rotating pipe and that he had a total of thirty (30) seconds for the rotating pipe to make it through the four (4') feet area that he had to tape in. It is obvious that the taping process is one that needs to be made accurately, timely and without the possibility of any miscue.
The testimony of the two (2) experts in the case, Mr. B orison and Mr. Kill-ingsworth, establishes that guards should have been made and placed onto the conveyor system, particularly in the area of the pinch points, where Melvin Rhine was killed[,] by the initial manufacturer of the equipment and subsequently by Bayou. Both experts agree that the OSHA requirements required guarding on the conveyor system, particularly at the pinch points, such as where Melvin Rhine was killed.
Borison testified that the Curley Gilliam accident was identical to the Melvin Rhine accident and that it should well have put Bayou and its employees on notice of a hazardous and dangerous condition. He testified that Curley Gilliam was taping the rotating pipe as was required of the tapers and that similarly Melvin Rhine was taping the rotating pipe as required of the tapers. They were doing the identical task, though each from a different side of the rotating pipe. The only differences were that Curley Gilliam was caught by the tape from the taper on the opposite side of the pipe, which caused him to be dragged over the rotating pipe until his foot hit the safety trip switch and Melvin Rhine, on the other hand, somehow got his taping hand caught by tape on the pipe which pulled him into the pinch point of the rotating pipe, turning belt head and the rubber conveyor belt.
Bayou and its employees, as well as their expert, Steven Killingsworth, take the position that the accidents are not identical and that the Curley Gilliam accident did not serve to put Bayou on any notice of the danger to the tapers relative to pinch points and getting killed during the taping process.
This Court finds that their argument is ingenuous and incorrect.
IsAfter the Melvin Rhine accident, the cement plant was shut down. OSHA came in and made an inspection and ordered that guarding be placed throughout the system before Bayou could begin operations again. This time, however, the Bayou employees took only one (1) week to obtain necessary information and a booklet advising them as to the guarding process to be used for pipe plant. During that period of time, they discovered necessary plans for guarding the conveyor system, installed the guarding and then began operations once more. This is in stark contrast to after the Curley Gilliam accident where they were unable to figure out any manner in which to guard the conveyor system that would not hamper production. (See testimony of Boffone and Monda). Not only did Bayou come up with guards for the entire system, but also put up guards to prohibit and prevent the tapers from leaning over and getting their hands near the pinch points and turning pipe. In addition to that, they developed a long handle for the taper to use and the roll of tape and taping was done at the other end of the long handle so that the taper could not get near the turning pipe or pinch points. A second person was then used to assist the taper and when the taper was done, he would pull the taping handle to himself and another person would actually cut the tape in an area where both were prevented from getting near the turning pipe or pinch points.
Robert Borison, the expert for plaintiffs, testified that the Curley Gilliam and Melvin Rhine accidents were similar. In fact, he testified that they were identical because the taper was caught by the turning pipe and put in a position of peril. Monda testified that they could not come up with a guard to comply with the OSHA regulations and therefore, they continued to let the tapers tape without the appropriate guarding. Robert Borison testified that with his experience, with this type of conveyor systems in the past that the accident of Melvin Rhine was substantially certain to happen. The area subjects the workers to an accident which was substantially certain to happen to any taper, not just Melvin Rhine. The area needed to be guarded and was not. Borison further testified that the warnings given to the employees everyday at the safety meeting to keep their hands away from the turning pipe and the conveyor system and the pinch points shows the knowledge of the employer in this warning that they were certain of an accident happening to the employees at these pinch points and had no way of preventing it.
Borison also testified that the documentation of Bayou sets forth to their employee[s] that they are not allowed to work around moving pipe unless safety stop activators are used. However, the tapers were required to put their hand on the turning pipe or very close to it in order to get the tape started on the pipe as it turned. In the personnel file of each employee, Bayou tells the employee not to go around or be exposed to the turning pipe. Therefore, the own advise of Bayou tells these employees that they cannot work around a turning pipe. Therefore, Bayou was exposing their workers to an obvious hazard in telling them they can avoid the hazard by being careful. This is, of course, never adequate and is not an appropriate safety measure. Borison also advises that the guarding and the new tape pole designed and used after the Melvin Rhine accident was an appropriate way to address the problem. After Melvin Rhine’s death, guards were placed on the belt heads and at the pinch points. Additionally, the taper was required to use a pole on linwhich the tape was attached far from his body and his body was prevented by guards from getting close to the pipe and pinch points. All of this was available to Bayou prior to the Melvin Rhine incident and certainly after the awareness of the Bayou employees after the Curley Gilliam accident.
Additionally, Borison testified that Bayou instructed their employees to stay clear of the conveyor at all times. They instructed them not to wear loose clothing when working near the conveyors. Borison testified that this is an impossible safety warning. This shows that Bayou was aware of the hazard and aware of the certainty of a disastrous accident for the tapers. Borison further testified that the requirement for the tapers to put their hands onto the pipe with the tape in order to start the tape on the turning pipe was a violation of the safety policy of Bayou as given to their own employees. Use of the tape and the manner in which it was applied was a violation of their own safety policy-
Borison also testified that the evidence of the injury, more particularly the photographs, indicated that Melvin Rhine started taping the pipe outside of the pinch point and that he got drawn into the pinch point when the tape caught on his glove and pulled his hand, arm and shoulder into the pinch point between the belt head, conveyor and turning pipe. In addition, there was no emergency safety stop that was available to Melvin Rhine as had been available to Curley Gilliam. Again, he asserts that the two (2) accidents are the same with the same risks, but that Melvin Rhine did not have the safety mechanism that was available to Curley Gilliam that saved him.
Borison testified that this accident was substantially certain to happen. There was a hazard and unless the hazard was corrected or guarded, this accident is substantially certain to happen. Additionally, the Curley Gilliam accident evidenced that the Melvin Rhine accident was substantially certain to happen. The equipment, if not guarded or redesigned is certain to have the Melvin Rhine accident. Additionally, the Bayou people knew that it was certain to happen because each day they warned their people not to put their hands near the pinch points, which the Bayou people knew were dangerous and also knew of the previous Curley Gilliam incident.
Similarly, Borison asserts that the Bayou employees were aware that OSHA’s safety rules and regulations required the guarding to protect against just this type of catastrophic accident. Borison testified that it is inevitable that this accident would happen and that it definitely will happen. He can’t say when it’s going to happen, nor that it’s going to happen every time someone tapes. However, Bayou knew that someone who experiences Melvin Rhine’s position is going to get pulled into the pinch point and is going to die. Anytime someone is taping and their hands get caught on the tape and/or the pipe, they are going to get pulled into the pinch point and killed. According to Borison, Bayou deliberately did not guard this hazardous situation and they exposed Melvin Rhine to the inevitability of his death.
J^Even the expert for the defendants, Steven Killingsworth, testified that Melvin Rhine got caught in the pinch point or convergent point. This pinch point or convergent point exists to the right of where Melvin Rhine was taping in the four (4') foot area. Killingsworth testified that Melvin Rhine either overreached or held onto the tape and was pulled into the pinch point by the turning pipe, belt head and rubber conveyor belt. Killingsworth testified that Melvin Rhine was not supposed to be taping within the belt head area. There is no testimony, however, that Melvin Rhine was taping within the belt head area. The testimony is that the tape got caught on his hand and pulled him into the pinch point or belt head area.
Again, o[f] course, Killingsworth testified that according to OSHA, the belt heads should have been guarded, as well as the pinch points. Killingsworth further testified that Bayou did not provide Melvin Rhine with a safe place to work and that was in violation of OSHA’s regulations. He further testified that because Tom Monda could not come up with a guarding system after the Curley Gilliam accident, Bayou should have hired someone to advise them and to design an appropriate guarding system rather than shaking their heads and not doing anything. Bayou was in violation of OSHA as a result. He further testified that the taping pole and dispenser should have been in place before the Melvin Rhine incident. He further testified that there was nothing in writing telling the tapers where they should tape from. He did not testify as to the substantial certainty of the accident happening or it not happening.
The Court finds that there is a preponderance of the evidence that the Bayou supervisory employees knew that the accident to Melvin Rhine and his death were substantially certain to follow from the conduct of the Bayou employees in not appropriately guarding the conveyor process, and allowing the hazardous activity to continue.
Thus, this Court finds that the Bayou employees knew from the operations which they failed to guard that the accident and death of Melvin Rhine w[ere] substantially certain to follow their failure to appropriately guard this conveyor process for Melvin Rhine and the other tapers.
This Court therefore finds that Bayou is liable to the plaintiffs herein as this accident was substantially certain to occur and thus is an exception to the Workmen’s Compensation Statute. Accordingly, there will be Judgment in favor of plaintiffs and against Bayou....

Based on its reasons for judgment, we find that the trial court’s determination has a basis in the record. The conclusion draws not merely on the testimony of Bo-rison but on that of Defendants’ own expert and the testimony of Bayou’s employees. Therefore, we find that the trial court was not manifestly erroneous in |12finding Bayou liable for an intentional act, and we will not overturn its decision on appeal.

Quantum of Damages

Finally, Defendants assert that the trial court made excessive awards of damages in making identical $300,000.00 loss of consortium awards to Rhine’s daughter, Ty’Nise Rhine, who lived with him and his son, Keyshawn Johnson, who lived in North Louisiana with his mother and had never lived with Rhine.

The trial court explained its award as follows:

Plaintiff, Kendra Johnson, sues on behalf of her minor child, Keyshawn Johnson. Kendra and Melvin Rhine met at ULM in August of 1996. They dated and were involved in a personal relationship from which she became pregnant. She told Melvin Rhine that she was pregnant. Melvin Rhine never denied that he was the father of the child and did not request any paternity test. She was a virgin at the time that she became pregnant for Melvin Rhine and was not involved with any other men. When that semester was over at ULM, she returned to her home in Shreveport to complete her pregnancy. After she left ULM and returned to Shreveport to complete her pregnancy, Melvin Rhine would come and visit her in Shreveport and stay at the residence with her mother. Keyshawn Johnson was born on December 19, 1997. She told Melvin Rhine about the birth. He contributed to the support of that child. Sometimes he paid cash, but most of the time, he sent money orders. He would send money orders every two (2) weeks, or at least once per month. After the child was born, Melvin Rhine would go to Shreveport and visit with the child and with Kendra Johnson. On occasion, Kendra Johnson came with her child, Keyshawn Johnson, to Jeanerette to visit with Melvin Rhine and his family. Keyshawn Johnson called the parents of Melvin Rhine his grandmother and grandfather. Melvin gave the child presents at the child’s birthday, Easter and Christmas. Melvin’s parents would also send presents to the child for those occasions. Melvin continued to visit with Keyshawn Johnson in Shreveport, where he lived with his mother, until the time of Melvin’s death. Kendra Johnson and Melvin Rhine would discuss the child, his future, and plans for the future of the child. Kendra Johnson and Key-shawn Johnson attended the funeral for Melvin Rhine. They visited with his family, together with his parents. Kendra Johnson and Keyshawn Johnson became familiar with Tynirsha Rhine and the children that she had with Melvin Rhine. They were all extremely cordial with one another.
Keyshawn Johnson took pictures from the funeral of his father and also copies of poems that were at the funeral. He keeps these items under his mattress at home so that he always has them there where he knows and he can look at them often. He knew his father from the visits his father made to him and through their talking on the telephone on numerous occasions. Keyshawn Johnson knows that his father played | tsfootball in college. Keyshawn was extremely sad and crying at the funeral. He does not have a role model any longer since his father has died. He does however talk on the telephone often with Melvin Rhine, III, who is the son of Melvin Rhine, from Melvin’s marriage with Tynirsha Rhine. He and Melvin Rhine, III are close friends and refer to one another as brothers. Occasionally, Keyshawn Johnson still has crying spells concerning the loss of his father, whom he misses very much.
Though they never lived together, the indication is that the association between [Keyshawn Johnson and his father] was close, continuing and valued to a great extent by Keyshawn Johnson, Keyshawn Johnson particularly has felt the loss of a male role model, his father, as indicated in his testimony and has caused him suffering since the loss of this father.

Given the evidence and testimony of record, we are unable to find an abuse of the trial court’s discretion in its award of loss of consortium to Keyshawn Johnson.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Defendants, the Bayou Companies, LLC and the Gray Insurance Company.

AFFIRMED.


author: KEATY, Judge.

text:
    Tiffany N. SANDERS v. ALEXANDRIA CIVIL SERVICE COMMISSION, et al.
    No. 11-539.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2011.
    Rehearing Not Considered Dec. 13, 2011.
    Malcolm X. Larvadain, Attorney at Law, Alexandria, LA, for Plaintiff/Appellee, Tiffany N. Sanders.
    Steven M. Oxenhandler, Samuel N. Poole, Jr., Joseph H.L. Perez-Montes, Michael J. O’Shee, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Inter-venors/Appellants, City of Alexandria, Jacques M. Roy, Mayor.
    Winston G. DeCuir, DeCuir, Clark & Adams, Baton Rouge, LA, for Defendants/Appellants, Dr. Ronald Mason Jr., Southern University A & M System.
    Thomas D. Davenport, Jr., The Davenport Firm, Alexandria, LA, for Defendant/Appellee, Alexandria Civil Service Commission.
    Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

LThe two lawsuits underlying this consolidated appeal concern the appointment of Tiffany N. Sanders (Sanders) to the Alexandria Civil Service Commission (the Commission). This appeal concerns two judgments of dismissal rendered on February 7, 2011, and February 14, 2011, in one of those lawsuits.

FACTS AND PROCEDURAL HISTORY

On December 2, 2010, the City of Alexandria (the City) and its Mayor, Jacques Roy (the Mayor), filed suit in the Ninth Judicial District Court (JDC), Parish of Rapides, seeking a temporary restraining order (TRO) against Roosevelt Johnson, President of the Alexandria City Council (the Council), seeking to prevent the Council from accepting and confirming Sanders as a member of the Commission. The case was randomly allotted to Division F; however, the TRO was granted by a duty judge, and a preliminary injunction hearing was set for January 7, 2011.

On December 29, 2010, Sanders filed a mandamus action in the JDC seeking to require the Commission to swear her in as a commissioner. The case was randomly allotted to Division C. Counsel for the parties in the mandamus action presented the Division F judge with an Unopposed Motion and Order to Consolidate the two actions. The consolidation order was signed on December 29, 2010. Neither Sanders nor the Commission requested service of the order on the Mayor or the City. On December 30, 2010, the Mayor and the City filed a motion for voluntary dismissal of the injunction proceeding. The following day, the Mayor and the City filed, by facsimile, a Petition of Intervention, seeking to intervene into the mandamus action.

|2On January 4, 2011, the Mayor and the City filed a motion to set aside and vacate the order of consolidation and to grant their earlier-filed motion for voluntary dismissal. According to the court minutes, a hearing on the motions took place before the Division F judge on January 5, 2011. The Division F judge denied both motions, granted the motion to consolidate, and continued the matter until January 14, 2011, at which time it would entertain “any issue” brought before it “involving this particular matter.” The Mayor and the City then orally sought permission to seek writs to this court, which was granted; however, their request to have all matters stayed was denied. In City of Alexandria v. Johnson, an unpublished writ bearing docket number 11-23 (La.App. 3 Cir. 1/12/11), the stay was denied; the writ was granted in part and made peremptory and denied in part. After finding that the trial court erred in denying the motion for voluntary dismissal once the Mayor and the City agreed in open court to dismiss their action with prejudice, we entered judgment dismissing the action filed by the City and the Mayor against the President of the Council. We then stated: “Having granted the motion for voluntary dismissal, we find that the trial court’s ruling consolidating these actions has been rendered moot,” and we remanded the matter for further proceedings in accordance with our ruling.

The matter came for hearing in front of the Division F judge on January 14, 2011. Thereafter, the trial court, on its own motion, issued oral reasons dismissing Sanders’ writ of mandamus with prejudice; dismissing the intervention filed by the Mayor and the City with prejudice; and, ordering all parties to start anew to fill the vacancy of the Commission. Written judgment decreeing the foregoing was signed on February 7, 2011. In a separate judgment signed on February 14, 2011, lathe trial court, on its own motion and for the reasons orally assigned on January 14, 2011, decreed that all claims of Sanders and of the intervenors; the Mayor, the City, and Southern University A & M System; were dismissed with prejudice.

The Mayor and the City now appeal, asserting that the trial court erred: in dismissing their petition of intervention on its own motion; in rendering orders and decrees beyond any relief sought by the parties; and in asserting jurisdiction over and issuing rulings in a case not assigned to it and in “which case the court’s Consolidation Order had been rendered moot by a specific Writ Application Ruling of this Court.”

DISCUSSION

Louisiana Code of Civil Procedure Article 1671 provides, in pertinent part, that “[a] judgment dismissing an action ... shall be rendered upon application of the plaintiff and upon his payment of all costs.” (Emphasis added.)

In Spencer v. Children’s Hospital, 432 So.2d 823 (La.1983), during the third week of a jury trial, the plaintiff did not appear on a Friday to finish testifying in support of her case, and court was recessed until Monday. On Monday morning, the plaintiffs attorney informed the trial court that the plaintiff had been hospitalized after unsuccessfully attempting to commit suicide. Nevertheless, the trial court determined that the plaintiff had “ ‘deliberately taken steps to prevent her[self] from testifying,’ ” and, on its own motion, dismissed the plaintiffs suit with prejudice. Id. at 824. The court of appeal affirmed and certiorari was granted. Spencer v. Children’s Hosp., 419 So.2d 1307 (La.App. 4 Cir.), writ granted, 423 So.2d 1178 (La.1982). The Louisiana Supreme Court reversed and remanded the case for a new trial, declaring that “the trial judge has no power to dismiss a case on his own motion.” Spencer, 432 So.2d at 824.

^According to the transcript of the January 14, 2011 hearing, the Division F judge declared that he wished to “see all counsel in the back.” A recess was then held from 9:40 a.m. to 10:11 a.m. Thereafter, the trial court stated, “[ajfter having heard all of the arguments of counsel and having extensive pretrials, the court on its own motion is going to dismiss all actions and we will start the process over again.”

The trial court had no authority to dismiss, on its own motion, the actions pending before it. See Spencer, 432 So.2d 823 and La.Code Civ.P. art. 1671. Accordingly, we reverse the judgments rendered on February 7, 2011, and February 14, 2011. Because of our decision to reverse the judgments being appealed for the reasons asserted by the Mayor and the City in their first assignment of error, we need not address their remaining assignments of error.

DECREE

For the foregoing reasons, we reverse the judgments rendered on February 7, 2011, and February 14, 2011, and we remand these matters to the trial court for further proceedings consistent with this opinion. All costs are to be shared equally by the parties to this appeal.

REVERSED AND REMANDED.

      . The original Petition of Intervention was filed on January 3, 2011.

      . The trial court also made rulings pertaining to a petition of intervention that had been filed by Southern University A & M System, but those rulings are not relevant to this appeal.


text:
    CITY OF ALEXANDRIA and Jacques Roy, in his Capacity as Mayor v. Roosevelt JOHNSON, Individually and as President of Alexandria City Council.
    No. 11-540.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2011.
    Rehearing Not Considered Dec. 13, 2011.
    Malcolm X. Larvadain, Attorney at Law, Alexandria, LA, for Plaintiff/Appellee, Tiffany N. Sanders.
    Steven M. Oxenhandler, Samuel N. Poole, Jr., Joseph H.L. Perez-Montes, Michael J. O’Shee, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Inter-venors/Appellants, City of Alexandria, Jacques M. Roy, Mayor.
    Winston G. DeCuir, DeCuir, Clark & Adams, Baton Rouge, LA, for Defendants/Appellants, Dr. Ronald Mason Jr., Southern University A & M System.
    Thomas D. Davenport, Jr., The Davenport Firm, Alexandria, LA, for Defendant/Appellee, Alexandria Civil Service Commission.
    Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

hFor the reasons set forth in the companion case in this consolidated matter, Tiffany N. Sanders v. Alexandria Civil Service Commission, et al., 11-539 (La.App. 3 Cir. 11/2/11), 79 So.3d 442, we reverse the judgments rendered on February 7, 2011 and February 14, 2011, and we remand these matters to the trial court for further proceedings consistent with this opinion. All costs are to be shared equally by the parties to this appeal.

REVERSED AND REMANDED.


author: EZELL, Judge.

text:
    Jeffrey KROGH v. TRI-STATE REFRIGERATION.
    No. WCA 11-697.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2011.

      Kathleen Wigginton Will, Briney & For-et, LLC, Lafayette, LA, for Defendant/Ap-pellee, Tri-State Refrigeration.
    Stephen C. Gaubert, Gaubert & Smith, Lafayette, LA, for PlaintiffAppellant, Jeffrey Krogh.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   EZELL, Judge.

1 Jeffrey Krogh appeals the decision of the workers’ compensation judge denying his claims for penalties and attorney fees against Tri-State Refrigeration for failure to approve his choice of a pain management physician. For the following reasons, we affirm the decision of the workers’ compensation judge.

On December 2, 2009, Mr. Krogh was working in the course and scope of his employment when he suffered a partial amputation of three of the fingers on his left hand. He had several surgeries to repair the damage between that time and February, 2010. After enduring painful physical therapy, Mr. Krogh was able to recover to the point that his surgeon, Dr. Kenneth Odinet, felt he had reached maximum medical improvement (MMI) and released him to full-duty work on April 1, 2010. Shortly after returning to work, Mr. Krogh began to experience pain in his fingers. Dr. Odinet limited him to light-duty work and recommended additional therapy and pain desensitization on April 14. On April 22, Mr. Krogh sent a demand letter to Tri-State seeking authorization for a pain management physician. This request was initially denied, as it had not been recommended by Dr. Odinet. Mr. Krogh filed the current claim, alleging Tri-State was arbitrary or capricious in denying him his physician of choice and seeking penalties and attorney fees. The workers’ compensation judge denied this claim, finding Mr. Krogh to be a believable witness, but finding no evidence of inappropriate behavior on the part of TriState. From that decision, Mr. Krogh appeals.

Mr. Krogh asserts one assignment of error on appeal, claiming the workers’ compensation judge erred in denying his request for penalties and attorney fees.

| ¡.Louisiana Revised Statutes 23:1121(B) provides that an employee has a right to select one treating physician in any field or speciality. However, this statute must be read in conjunction with La.R.S. 23:1203(A), which requires that treatment be medically necessary in order for the employer to be responsible for the expenses. Scott v. Piccadilly Cafeteria, 97-1584 (La.App. 3 Cir. 4/1/98), 708 So.2d 1296. Captain v. Citgo Petroleum Corp., 06-481, p. 3 (La.App. 3 Cir. 9/27/06), 940 So.2d 731, 735. The Louisiana Supreme Court discussed

the meaning of “reasonably controverting a claim” in Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La.12/1/98), 721 So.2d 885, 890, as follows:

In general, one can surmise from the plain meaning of the words making up the phrase “reasonably controvert” that in order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base his denial of benefits. Thus, to determine' whether the claimant’s right has been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under La. R.S. 23:1201, a court must ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed.

The determination of whether an employer should be cast with penalties and attorney fees in a workers’ compensation case is essentially a question of fact and subject to the manifest error/clearly wrong standard of review. Reed v. Abshire, 05-744 (La.App. 3 Cir. 2/1/06), 921 So.2d 1224.

The record before this court does not establish any error in the workers’ compensation judge’s decision. In the three weeks before Mr. Krogh first sought pain management, Dr. Odinet had released him to work without restrictions, noting that he .felt Mr. Krogh was at MMI and that Mr. Krogh felt no pain in his fingers. After returning to work, Mr. Krogh began to feel “needles and shocking pain” when he would strike his fingers against something. Two weeks after granting him a full work release, Dr. Odinet reduced Mr. Krogh from full duty to light duty and attempted to |salleviate this apparently new pain through physical therapy and pain desensitization. He did not indicate any need for pain management. Little more than a week after this visit, Mr. Krogh sought to be approved for pain management. This was all the information before Tri-State at the time of demand. Given the limited information, none of which pointed to the medical necessity of pain management for Mr. Krogh, we cannot find that Tri-State was arbitrary or capricious in not approving what could have been seen as duplicative medical services, as he was in the process of undergoing the physical therapy recommended by Dr. Odinet at the time of the request. The workers’ compensation judge did not commit error in its finding.

For the above reasons, the ruling of the trial court is hereby affirmed. Costs of this appeal are assessed against Mr. Krogh.

AFFIRMED.

      . Pain management was eventually recommended by Dr. Odinet and approved by TriState.


text:
    Kent NORMAND v. DRESSER INDUSTRIES, INC.
    No. 11-522.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 2011.

      George A. Flournoy, Flournoy & Dog-gett, Alexandria, LA, for Plaintiff/Appel-lee, Kent Normand.
    Mark A. Watson, Stafford, Stewart & Potter, Alexandria, LA, for Defendants/Appellants, Dresser Industries, Inc., Liberty Mutual Insurance Company.
    Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

^Dresser Industries, Inc. (Dresser) and its workers’ compensation insurer, Liberty Mutual Insurance Company (Liberty Mutual), appeal a judgment rendered by the workers’ compensation judge (WCJ) in favor of its former employee, Kent Normand (Normand), awarding him benefits, reimbursements, penalties, and attorney fees. Normand answers the appeal. For the following reasons, we amend the judgment to award Normand an additional $2,000.00 penalty, affirm as amended, and award Normand $4,000.00 in attorney fees for work done on this appeal.

FACTS AND PROCEDURAL HISTORY

Normand injured his neck and back in a forklift accident at work in 2005. Dr. Clark Gunderson, an orthopedic surgeon, performed a lumbar fusion on Normand in June of 2007. Normand remained under the active care of Dr. Gunderson until April 16, 2010, when Dr. Gunderson declared that he had reached maximum medical improvement (MMI).

Normand filed a 1008 Disputed Claim for Compensation on October 31, 2007, alleging that Dresser was guilty of nonpayment and/or untimely payment of his medical and travel expenses. The matter was tried on July 22, 2010. At the beginning of trial, the parties stipulated that Normand’s average weekly wage was not at issue and that Liberty Mutual was Dresser’s workers’ compensation insurer at all times pertinent to this case. They further stipulated that Normand was paid temporary total disability benefits (TTDs) up until March 31, 2010. In addition, it was stipulated that if she were called to testify, Liberty Mutual’s adjuster, Ginger Neal, would state that Normand’s indemnity benefits were discontinued on March 31, 2010, based on deposition testimony given by Normand that he had taken retirement from Dresser.

|;>The WCJ issued an oral ruling on October 18, 2010. Written judgment was rendered on October 20, 2010, declaring that: 1) Normand was entitled to TTDs from April 1 through April 16, 2010; 2) Normand was entitled to supplemental earnings benefits (SEBs), based on zero earnings, from April 17, 2010, through the date of trial and continuing thereafter; 3) Dresser was ordered to reimburse Normand’s medical travel expenses of $29.93 and the advance payment of $1,400.00 for Dr. Charles Aprill’s initial treatment; 4) Dresser was ordered to pay the remainder of Dr. Aprill’s bill for treatment of Normand’s work injuries; 5) Dresser was ordered to pay Normand $6,000.00 in penalties under La.R.S. 23:1201(F) for its multiple untimely payments of indemnity benefits, failure to pay for Dr. Aprill’s treatment, and failure to fully reimburse Normand’s medical travel expenses; 6) Dresser was ordered to pay Normand $8,000.00 in penalties under La.R.S. 23:1201(1) for its arbitrary discontinuation of plaintiffs indemnity benefits; 7) Dresser was ordered to pay Normand’s attorney a $7,500.00 fee under La.R.S 23:1201(J); and, 8) Dresser was assessed with all costs. A partial new trial was later granted ordering Dresser to reimburse Normand for his medical travel expenses of $542.24 and otherwise enforcing the earlier judgment.

Dresser now appeals, asserting that the WCJ committed legal error in holding that it had the burden of proving that Normand had retired. As a result, it submits that we should perform a de novo review instead of applying the usual manifest error standard of review. Next, it claims that the WCJ erred in finding that Normand had not retired within the meaning of La. R.S. 23:1221(3)(d)(iii). Normand answered the appeal, seeking an increase in La.R.S. 23:1201(F) penalties and an award of attorney fees for work done on this appeal.

| ¡¿DISCUSSION

“Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.” Foster v. Rabalais Masonry, Inc., 01-1394, p. 2 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160, 1162, writ denied, 02-1164 (La.6/14/02), 818 So.2d 784 (citation omitted). On the other hand, where the WCJ has made a legal error and a complete record is available, the appellate court must conduct a de novo review. Grillette v. Alliance Compressors, 05-982 (La.App. 3 Cir. 2/1/06), 923 So.2d 774.

“An injured worker is entitled to receive temporary total disability benefits from the date of his disabling injury until either party shows a lawful ground for a change in his status.” Clark v. State, Dep’t of Corrs., 94-168, p. 3 (La.App. 3 Cir. 10/5/94), 643 So.2d 467, 469. “It is well established in Louisiana jurisprudence that an employer can change temporary total disability benefits to supplemental earnings benefits only when the employee has been released back to work by his treating physician.” Id.

“The purpose of SEBs is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident.” Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52, 55 (La.1993). An employee is entitled to receive supplemental earnings benefits (SEBs) if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. La.Rev.Stat. Ann. § 23:1221(3)(a) (West Supp.1997).

Banks v. Indus. Roofing & Sheet Metal Works, 96-2840, p. 8 (La.7/1/97), 696 So.2d 551, 556. Louisiana Revised Statutes 23:1221(3)(d) provides, however, that:

The right to supplemental earnings benefits ... shall in no event exceed a maximum of five hundred twenty weeks, but shall terminate:
|4(iii) When the employee retires; however, the period during which supplemental earnings benefits may be payable shall not be less than one hundred four weeks.

In Key v. Monroe City School Board, 45,096, p. 6 (La.App. 2 Cir. 3/10/10), 32 So.3d 1144, 1149-50 (citations omitted), the second circuit explained:

The retirement referred to in § 1221(3)(d)(iii) is not resignation from work because of disability; it refers only to a worker who has no intention of returning to work regardless of disability. When a worker has retired from a heavy work duty job but is still willing to take on light duty employment within the scope of the limitations imposed by her disability, then that worker is said not to have withdrawn from the workforce and is not considered retired under § 1221 (3) (d) (iii).

In this case, Dresser voluntarily paid Normand TTDs through March 31, 2010, at which time it discontinued his indemnity benefits based upon testimony given in his July 20, 2009 deposition that he had retired from Dresser on April 1, 2009. Accordingly, it was not paying Normand any benefits at the time of trial.

Normand testified that because a new employee contract was coming up at Dresser that May of 2009, he chose to retire in April of 2009 rather than risk losing benefits that he considered to be “good enough” under the existing contract. With regard to his current condition, Normand stated that he still had pain in his neck and back, but not nearly as much as he had previously suffered. He unequivocally stated, however, that none of his residual complaints from the 2005 accident played any part in his decision to retire. Normand testified that he had looked in the newspaper for a job that would not hurt his back or his neck and that he had spoken to a friend several times about working for him delivering automobiles, but nothing had been available at those times.

Normand’s girlfriend of four years, Ruby Bordelon, confirmed that Normand had looked for work since he left Dresser. When asked if Normand had ever indicated that he never intended to go back to work, she responded, “[n]o.”

|s Burden of Proof

In its brief to this court, Dresser asserts that “[a]n employer can challenge a claimant’s claim to workers’ compensation benefits at any time, with the burden on the claimant to show by ‘by clear and convincing evidence, unaided by any presumption of disability’ the claimant’s rights to benefits,” citing in support of that statement La.R.S. 23:1221(2)(c) and Williams v. Midwest Industrial Contractors, 04-1856 (La.App. 4 Cir. 5/18/05), 905 So.2d 335. Then, based on the following statement from the WCJ’s reasons for judgment, “it was not shown that Mr. Normand had retired,” Dresser claims that the WCJ erred in placing the burden on it to prove that Normand had retired.

Dresser’s argument fails for several reasons. First, the portion of the statute referred to by Dresser above is found in the section concerning permanent total disability benefits, not supplemental earnings benefits. Second, because Dresser chose to stop paying indemnity benefits to Normand instead of simply converting its payment from TTDs to SEBs, Normand was required to prove that he was entitled to receive benefits and that Dresser’s discontinuation of those benefits was arbitrary and capricious. Normand met his initial burden of proof. He showed that he was entitled to receive TTDs until Dr. Gunderson declared that he had reached MMI on April 16, 2010, and that he was entitled to receive SEBs thereafter. Only then did the burden shift to Dresser to prove that Normand had retired under La.R.S. 23:1221(3)(d)(iii). There is no merit to Dresser’s contention that the WCJ applied the wrong burden of proof regarding whether or not Normand had retired. Accordingly, we will apply the manifest error standard of review in assessing Dresser’s second assignment of error.

yDid Normand Retire?

Dresser claims that the WCJ clearly erred in finding that Normand had not retired within the meaning of La.R.S. 23:1221(3)(d)(iii), arguing that the totality of the facts and circumstances indicate that Normand retired and has withdrawn from the work force. It characterizes Normand’s efforts to find another job as minimal and unverifiable.

Normand disagrees, pointing to his testimony that he did not completely withdraw from the work force, that he did not consider himself fully retired, that he was willing to work, and that he looked for work within the physical limitations set forth by Dr. Gunderson. Based on the foregoing, Normand submits that the WCJ’s factual determination that he had not retired is not manifestly erroneous and should be upheld.

The WCJ was presented with conflicting testimony and evidence concerning whether Normand had retired. Ultimately, the WCJ made the factual determination that Normand had not retired from Dresser. After reviewing the record in its entirety, we conclude that that factual determination was not manifestly erroneous or clearly wrong. Accordingly, there is no merit to Dresser’s second assignment of error.

In its brief to this court,. Dresser complains that regardless of whether we affirm or reverse the WCJ, the October 20, 2010 judgment does not address the retirement issue, thereby leaving unresolved the question of whether the judgment decided the retirement issue for res judicata purposes. The WCJ clearly stated in its oral reasons for judgment that “it was not shown that Mr. Normand had retired.” Nevertheless, the written judgment failed to contain that finding of fact, even though the retirement question was the chief focus of the trial and even though resolution of that question was central to the judgment that was rendered. 17Accordingly, we amend the October 20, 2010 judgment to include the following: “IT IS ORDERED, ADJUDGED, AND DECREED that plaintiff has not retired within the meaning of La.R.S. 23:1221(3)(d)(iii).”

Penalties

“Awards of penalties and attorney’s fees in workers’ compensation [cases] are essentially penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers. Although the Workers’ Compensation Act is to be liberally construed in regard to benefits, penal statutes are to be strictly construed.” Williams v. Rush Masonry, Inc., 98-2271, pp. 8-9 (La.6/29/99), 737 So.2d 41, 46 (citation omitted). An appellate court reviews the WCJ’s decision to award penalties and attorney fees using the manifest error/clearly wrong standard of review. Ducote v. La. Indus., Inc., 07-1536 (La.App. 3 Cir. 4/2/08), 980 So.2d 843.

In his answer to appeal, Normand contends that the WCJ erred in awarding him a single $2,000.00 penalty for the multiple instances where Dresser either made late payments or failed to pay his medical travel expenses. In brief, he points to nine separate demands for travel expenses that were made to Dresser, each of which was paid late or not at all. Normand acknowledges, however, that because of the statute’s cap, Dresser cannot be assessed more than $8,000.00 in penalties. Dresser chose not to address the additional penalties issue, even though Normand’s answer to appeal was filed several weeks before its appellate brief was due.

Louisiana Revised Statutes 23:1201(F) provides that an employer’s “[fjailure to provide payment in accordance with this Section” shall result in assessment of a penalty of up to $2,000.00 for any claim up to a maximum of $8,000.00 regardless of the number of penalties imposed. Here, the WCJ awarded Normand a total of “$6,000 in 23:1201(F) penalties due to defendant’s multiple Isuntimely payments of indemnity benefits, failure to pay for Dr. Aprill’s treatment and failure to reimburse fully plaintiffs medical travel expenses.” In choosing to award Normand a single $2,000.00 penalty for Dresser’s having made “exceedingly late” payments of his medical travel expenses, the WCJ found that Normand had not met his burden of proof of his entitlement to multiple penalties as there was no evidence presented to show why those payments were made late. The WCJ justified the single penalty by noting that penalty statutes are to be strictly construed and by distinguishing this matter from Burnett v. Village of Estherwood, 09-680, p. 6 (La.App. 3 Cir. 12/9/09), 25 So.3d 997, 1001, where this court found that three separate penalties were due where “there were three separate mileage submissions which were either underpaid or paid late for different reasons.”

Once Normand provided clear evidence that he had made multiple requests to Dresser to reimburse him for separately incurred medical travel expenses and that Dresser had either failed to pay or made late payment of those expenses, he met his burden of proving that he was entitled to multiple penalties up to the maximum allowed by the statute. The burden should have shifted to Dresser to prove why each of those requests were either paid late or not paid, including whether those late or non-payments were due to a single clerical error, such as was the case in Ducote, 980 So.2d 843. The WCJ erred in holding Normand responsible for the lack of evidence as to Dresser’s reason(s) for late or non-payment and in awarding him only a single penalty for Dresser’s late or nonpayment of his medical travel expenses. Accordingly, we award Normand an additional $2,000.00 penalty under La.R.S. 23:1201(F).

| <iAttorney Fees

In his answer to appeal, Normand requests additional attorney fees for work done on this appeal. In Nash v. Aecom Technology Corp., 07-990, p. 8 (La.App. 3 Cir. 2/6/08), 976 So.2d 263, 268, this court held that “[a] workers’ compensation claimant is entitled to an increase in attorney fees to reflect additional time incurred in defending an employer/insurer’s unsuccessful appeal.” We award Normand an additional attorney fee of $4,000.00 for the work done on appeal.

DECREE

For the foregoing reasons, we amend the October 20, 2010 judgment to award Normand an additional $2,000.00 penalty and to include the following language: “IT IS ORDERED, ADJUDGED, AND DECREED that plaintiff has not retired within the meaning of La.R.S. 23:1221(3)(d)(iii).” We affirm as amended and award Normand $4,000.00 in attorney fees for work done on this appeal.

AFFIRMED AS AMENDED.

      . Although Normand also sought an increase in the original attorney fee award in his answer to appeal, he waived that claim in his brief to this court.

      . In its oral reasons for judgment, the WCJ admitted that he “came into confusion” when trying to reconcile Normand’s demand letters for medical travel expenses with Dresser's payment log.