author: AMY, Judge. SAUNDERS, Judge,

text:
    Dorrie BELL v. OUR LADY OF LOURDES REGIONAL MEDICAL CENTER, INC.
    No. 10-1554.
    Court of Appeal of Louisiana, Third Circuit.
    June 1, 2011.
    Philip E. Roberts, Leake & Andersson, LLP, Lafayette, LA, for Defendant/Appel-lee, Our Lady of Lourdes Regional Medical Center, Inc.
    John G. Munoz, Garner & Munoz, New Orleans, LA, for Claimant/Appellant, Dor-rie Bell.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR and MARC T. AMY, Judges.
   AMY, Judge.

LThe claimant alleged that she sustained a neck injury while moving dirty linens in her capacity as a housekeeper for the employer. The employer denied benefits, contesting the occurrence of a work-related accident. The employer later terminated the claimant’s employment. After a hearing, the workers’ compensation judge found that the claimant failed to meet her burden of proving that she sustained a compensable accident. The claimant appeals. For the following reasons, we affirm.

Factual and Procedural Background

Dorrie Bell, the claimant, initiated this workers’ compensation matter due to her assertion that she sustained neck and back injury in her employment as a housekeeper with Our Lady of Lourdes Regional Medical Center. The claimant alleged that, on August 20, 2007, she and a coworker were pushing/pulling a linen cart when she felt a pulling in her neck. Later that morning, the claimant continued to feel the pain in her neck and, according to her testimony, felt that pain through her right side.

That same morning, the claimant reported to St. Claire’s clinic, which the record reflects offers medical care to the hospital’s employees. She was treated by Nurse Practitioner Amelie Hollier. Nurse Practitioner Hollier diagnosed the claimant as having sustained a cervical strain. During that time period, an accident report was completed. Thereafter, the claimant was returned to work at light duty. Also on that day, the claimant was interviewed by Penny Thibodeaux, the employer’s workers’ compensation coordinator, where she reported neck injuries.

Thereafter, on August 22nd, two days following the alleged accident, the claimant returned to the clinic for a follow up visit. At that time, Ms. Hollier’s notes reflect that the claimant’s neck pain had resolved and that she denied injury to her flower back. However, the claimant reported that her buttock area would “lock when getting up.” The records from the visit reveal that Darvocet had been prescribed for “LBP,” but that “this is not due to her workers comp injury[.]”

The following day, August 23rd, the employer terminated the claimant’s employment. It also denied further compensation benefits. The employer’s “Termination Report” listed “Falsification upon employment” as the explanation for the termination of employment.

The claimant later instituted this matter in January 2008, seeking an award of medical treatment and indemnity benefits. In response, the employer asserted that the claimant willfully made false statements or representations in connection with the claim and, further, that she failed to truthfully answer the health questionnaire completed at the time of her employment.

Following a hearing, the workers’ compensation judge determined that the claimant failed to prove the occurrence of a compensable accident, thereby defeating her claim for benefits. The workers’ compensation judge further rejected the defendant’s assertions of fraud arising under La.R.S. 23:1208 and La.R.S. 23:1208.x.

[¡jThe claimant appeals, asserting that the workers’ compensation judge erred in (1) finding that the claimant did not prove that she was injured in a work-related accident; (2) finding that the medical evidence did not support a finding of work-related injury and in admitting into evidence the ISO report and related correspondence; and in (3) ac-_ cepting the testimony of a nurse-employee of the defendant over the claimant’s physicians and diagnostic testing.

Discussion

Occurrence of Accident

Each of the claimant’s three assignments of error address the workers’ compensation judge’s determination that the claimant failed to prove that her injuries resulted from a work-related injury.

If not otherwise eliminated, a claimant is entitled to workers’ compensation benefits for ‘“personal injury by accident arising out of and in the course of his employment.’ ” Ardoin v. Firestone Polymers, L.L.C., 10-0245, p. 5 (La.1/19/11), 56 So.3d 215, 218, quoting La.R.S. 23:1031(A). Louisiana Revised Statutes 23:1021(1) defines an accident as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” The claimant has the burden of proving the work-related accident. Ardoin, 56 So.3d 215.

In this matter, the claimant produced no witness to the alleged accident. Rather, Mary Solomon, who was assisting the claimant with the linen cart at the time, testified that she did not know that the claimant had injured herself. She similarly denied witnessing an accident when she was contacted by Ms. Thibodeaux on the ^afternoon of August 20th, the date of the alleged accident. Despite the lack of a witness to the accident, a claimant can establish its occurrence if: 1) no other evidence discredits or casts serious doubt upon the claimant’s version of events; and 2) the claimant’s account is corroborated by circumstances following the alleged accident. Bruno v. Harbert Int’l, Inc., 593 So.2d 357 (La.1992). Further, the factfin-der should accept a claimant’s uncontra-dicted testimony regarding the occurrence of an unwitnessed accident absent circumstances casting suspicion on that testimony. Id. On appeal, we consider a workers’ compensation judge’s determination regarding whether the claimant has sustained his or her burden of proof under the clearly wrong or manifest error standard. Id.

In reasons for ruling, the workers’ compensation judge concluded that the claimant failed to satisfy her burden of proof, stating:

It appears from the evidence, both documentary and live testimony, that after she was discharged and thus, denied medical care by her employer, Ms. Bell sought treatment initially from a physician recommended by her attorney.
Defense counsel, politely and professionally, but very pointedly, explained to the Court that the physician Ms. Bell saw was affiliated with a clinic that catered to personal injury plaintiff lawyers. And that does appear to be the situation here. In general, I find it just a touch disingenuous for an employer to express an overabundance of concern about the pedigree and professional panache of a physician who treats an employee who has absolutely no place else to go for medical care except at a charity hospital. Defense’s point is well taken.
However, a Worker’s Compensation Court would be hard pressed to function if it were constrained to consider only those medical opinions from physicians who are certifiably evenhanded, pure of heart and totally dismissive of the profit motive. Medical opinions say what they say, and the physicians who write them, are who they are. We all understand that.
The medical reports in the instant trial are predictably, contradictory. The claimant’s physician is certain that the accident is work related. The defense’s physician is positive that it’s not. They I:¾both expressed their respective views, clearly and explained them in detail. Much can be learned from both of them, however, neither, in and of itself, is dis-positive here.
What is clear is that Ms. Bell is no stranger to neck and back pain for a variety of reasons. She also has a record of working at various jobs for several years before the incident at Lady of Lourdes. Given her spinal condition, it is not unlikely or even improbable that she did, in some fashion, suffer some aggravation to her back, leg, and knees while she was pushing the laundry cart. It certainly could have occurred. There is an even chance that it did. But, that’s not the level of proof required by law on the part of a claimant.
Ms. Hollier, the registered nurse, who examined Ms. Bell at the employee’s clinic, provided lengthy and well-considered testimony. She is the registered nurse who initially examined Ms. Bell at the clinic. Ms. Hollier, who is a certified nurse practitioner, explained carefully and logically her reasons for being, as she put it “suspicious” of Ms. Bell’s complaints. She found the claimant’s story entirely inconsistent with the normal and customary complaints of someone who has recently sustained a serious neck and back injury. Ms. Hollier was both credible and convincing.
During the testimony at trial, representatives of the hospital express puzzlement and indeed skepticism about Ms. Bell’s recitation of events surrounding her accident. I decidedly did not get the impression that the hospital was hard at work trying to disprove Ms. Bell’s story. After all, this is not an uncommon occurrence. The fact is that the information Ms. Bell provided would force a reasonable person to conclude that her story is simply unverifiable.

After review of the record, we find no manifest error in this determination that the claimant failed to sustain her burden of proof in proving the occurrence of a com-pensable accident by a preponderance of the evidence.

Certainly, the medical evidence in this case establishes that the claimant was ultimately discovered to have disc protrusion in the cervical spine. However, the record does not otherwise demand a determination that the claimant proved that her |ficondition resulted from a compensable work-related accident. As stated above, the claimant, alone, testified regarding the occurrence of the accident. Ms. Solomon, her partner in moving the linen cart, denied knowing of such an occurrence when questioned by Ms. Thibodeaux on the day of the alleged accident and did so again at trial. Thus, the alleged accident was un-witnessed.

As stated above, in order for a claimant to satisfy his or her burden of establishing an unwitnessed accident, the Bruno factors must be satisfied. This matter fails due to the first Bruno requirement that no other evidence must discredit or cast serious doubt on the claimant’s account of events. Bruno, 593 So.2d 357. In addition to Ms. Solomon consistent denial of being aware of the accident, Don Guidry, the claimant’s supervisor, denied that the claimant reported a work-related accident to him, although such a report was required by work-place policy. Instead, he could recall that the claimant stated to him that she had a “crick” in her neck. Also, the medical records from the claimant’s visit indicate that Nurse Practitioner Hollier noted that, despite her complaint of neck pain, “when distracted by non medical questions-[the claimant] moves neck easily[.]” She described this as “significant” because the claimant did not demonstrate loss of range of motion in the neck.

Finally, the claimant denied prior accidents and injuries to her neck in her employment questionnaire and upon pointed questioning by Ms. Thibodeaux. The transcript of the claimant’s statement to Ms. Thibodeaux was introduced into evidence and includes the claimant’s denials. Ms. Thibodeaux testified that, despite these denials, she became aware of two accidents, one in 1990 and one in 1996, involving the claimant undergoing treatment for neck pain.

|7In this case, the claimant alone testified as to the occurrence of the accident. Although she visited the nurse practitioner and related her pain to the purported accident, the occurrence was unwitnessed due to her co-workers’ denial of the event. Other evidence impeached the claimant’s credibility insofar as she denied prior injury to the neck. Thus, the workers’ compensation judge was not manifestly erroneous in determining that the claimant failed to establish her case, insofar as, under the dictates of Bruno, 593 So.2d 357, other evidence discredited or cast serious doubt on her version of events. Therefore, we affirm the workers’ compensation judge’s ruling.

We observe that much of the claimant’s brief, including her third assignment of error, addresses the question of whether she presented sufficient evidence that the alleged accident caused her purported injuries. In particular, her third assignment addresses whether the workers’ compensation judge should have placed greater weight on her own treating physician’s testimony regarding causation. However, this case is resolved by consideration of the preliminary question of whether she proved a work-related accident. Accordingly, we do not reach the specific causation issue.

DECREE

For the foregoing reasons, the ruling of the workers’ compensation judge is affirmed. All costs of this appeal are assigned to the appellant, Dorrie Bell.

AFFIRMED.

SAUNDERS, J., dissents and assigns written reasons.

SAUNDERS, Judge,

dissents and assigns written reasons.

11 Claimant was injured while pushing a 200 pound laundry cart, a task normally reserved for employees with stronger physical abilities, but which was extraordinary work for this Ms. Bell. Before pushing the cart she had no complaints. Shortly after pushing the cart she began to notice that she had a problem.

While co-worker Solomon and supervisor Guidry could not recall claimant notifying them soon after the event, it is un-contradicted that Ms. Bell did notify coworker Faulk, Nurse Practitioner Hollier, and Workers Compensation Coordinator Thibodeaux.

In my view, this record supports a finding for Ms. Bell as it shows that she sufficiently proved that a workplace accident had occurred.

[I]t is immaterial that [Claimant] could not identify the exact movement she was making or item she was handling at the time of the sudden onset of pain. Importantly, “[t]he ‘actual, identifiable, precipitous event’ may include a routine movement or task that the employee regularly performs, if the claimant is able to identify with some particularity as to time, place and manner, the objective manifestation of the accidental injury.” Thompson v. Orleans Parish Sch. Bd., 00-1230, p. 3 (La.App. 4 Cir. 3/21/01), 786 So.2d 128, 130. Further, “[a]lthough the definition of accident was amended to emphasize that the identifiable, precipitous event must be more than a gradual deterioration or progressive degeneration, jurisprudence holds that these terms do not exclude those instances where a worker can establish a work-related event, which may seem to be a customary or routine work activity, which results in an injury to the employee.” Richard v. Workover & Completion, 00-794, p. 4 (La.App. 3 Cir. 12/6/00), 774 So.2d 361, 364. Thus, we find no merit in this assignment of error and affirm the finding that an “accident” occurred within the meaning of La.R.S. 23:1021(1).

McCall v. Wal-Mart Stores, Inc., 02-1343, p. 3 (La.App. 3 Cir. 3/5/03), 846 So.2d 832, 835-36, writ denied, 03-1343 (La.9/19/03), 853 So.2d 641.

The facts of the present case show that an accident did occur and was reported timely. Certainly, the facts here are at least as strong as those we affirmed in McCall.

The workers compensation judge here was apparently focused disproportionately on Ms. Bell’s inability to identify a precise moment or movement that caused her injury, but that should not have been determinative. What should have been determinative was that she showed that her injury was caused by pushing a heavy cart, which was not a part of her ordinary job duty. By contrast, this Court found in favor of the claimant in the McCall case who was performing her ordinary tasks as a cashier when she began to feel tired. Accordingly, I respectfully dissent.

      . In rejecting the employer’s claim, the workers’ compensation judge stated:

        I do not agree with the hospital’s contention that Ms. Bell committed fraud, an act which requires a willful knowing attempt to cheat and steal. The defendant fell short, well short of providing support for that claim. The hospital’s contention that Ms. Bell committed fraud under either 23:1201 [sic] or 23:1201.1 [sic] are both denied.
      The Court's ruling is that Ms. Bell did not sufficiently prove her claim but also that she did not commit fraud.
      The employer has not independently appealed this determination in the event the claimant is successful in her appeal. We, therefore, do not discuss this aspect of the ruling.

      . The claimant’s treating physician opined that the claimant’s condition was related to the alleged accident, whereas the employer submitted an opinion from an examining physician who reported that: "I believe that this represents a chronic degenerative type process and does not reflect an acute injury or direct relationship to the described mechanism of pushing a linen cart."

      . The claimant questions the admission into evidence of the "ISO Report” relied upon by Ms. Thibodeaux. She contends that it was impermissible hearsay of the 1996 accident. However, we note that Ms. Thibodeaux testi-fled regarding her awareness of the accident and, furthermore, that the workers’ compensation judge admitted both the ISO Report and a related letter, stating that: "Yes, it is hearsay but I’m going to admit it as hearsay understanding that it is hearsay and just admitting it as to the weight.” On review, we reference Ms. Thibodeaux’s testimony rather than the contents of the exhibit.


source: Caselaw Access Project

author: KUHN, J.

license: Public Domain

text:
    Lillian P. LYONS v. TERREBONNE PARISH CONSOLIDATED GOVERNMENT.
    No. 2010 CA 2258.
    Court of Appeal of Louisiana, First Circuit.
    June 10, 2011.

      Charles C. Bourque, Jr., Christopher J. St. Martin, Joseph G. Jevic, III, Houma, LA, for Plaintiff-Appellant Lillian P. Lyons.
    James D. Caldwell, Attorney General, Taylor M. Simon, Assistant Attorney General, New Orleans, LA, for Defendants-Appellees State of Louisiana, through the Department of Social Services.
    Before KUHN, PETTIGREW, and HIGGINBOTHAM, JJ.
   KUHN, J.

| gPlaintiff, Lillian P. Lyons, appeals a judgment that sustained an exception, raising the objection of no cause of action, and dismissed her personal injury claims with prejudice on the basis of immunity. The trial court found the immunity afforded under the Louisiana Homeland Security and Emergency Assistance and Disaster Act (“the Act”), Louisiana Revised Statutes 29:721 et seq., protected defendant, the State of Louisiana, through the Department of Social Services (“the State”), from liability for “injury to persons” as a result of “emergency preparedness activities.” La. R.S. 29:735 A(l). We affirm.

I. PROCEDURAL AND FACTUAL BACKGROUND

According to the allegations of Lyons’ petition and supplemental and amending petitions, the State and other defendants, the Terrebonne Parish Consolidated Government and the Terrebonne Children’s Advocacy Center, had custody and control of a building and parking lot (formerly operated as Kirshmans), which they designated as a location to provide disaster assistance to the public during the aftermath of Hurricane Gustav. The petition further alleged in pertinent part, as follows:

3.a.
At all material times herein ..., Ter-rebonne Children’s Advocacy Center was the owner of the building and parking lot [in question]....
3.b.
At all material times herein ..., Ter-rebonne Consolidated Government and the State of Louisiana, Department of Social Services, were directing the application process for obtaining disaster assistance in the building and parking lot....
_⅛4-
On or about September 11, 2008, petition was attempting to obtain disaster assistance, while waiting in the parking lot of said building location, when suddenly petitioner slipped and fell on the concrete area[.]
5.
The concrete area where petition was required to stand had a layer of algae that had formed onto the wet concrete.
6.
The sole and proximate cause of [Lyons’] accident [and injuries] was the negligence of the defendants, which is attributed to, but not limited to, the following:
a) Failure to maintain a safe public area;
b) Failure to guard against hazards that were foreseeable when an area is exposed to wet and slippery areas;
c) Failure to provide adequate lighting; and
d) Any and all other acts of negligence which may be proven at trial....

In response, the State filed a peremptory exception, urging the objection of no cause of action, premised on the immunity afforded by the Act to the State while it was engaged in “emergency preparedness activities” pursuant to La. R.S. 29:735 A(l).

|4On June 2, 2010, the trial court signed a judgment, sustaining the State’s exception and dismissing Lyons’ claims against the State. In reasons for judgment, the trial court found, in pertinent part, as follows:

According to [the State], it is not liable for the death of or any injury to persons or damage to property as a result of “emergency preparedness” activities, a term defined by law to include the activity in which [the State] was engaged when [Lyons] was injured.... [T]he immunity provisions of La. R.S. 29:735 were in effect on September 11, 2008, as a result of the effects of Hurricane Gustav because the Governor, as a necessary prerequisite in accordance with La. R.S. 29:724,[] declared a state of disaster or emergency on August 27, 2008....
[ JLyons] correctly points out that for the purpose of determining the validity of an exception of no cause of action, the court is required to accept the allegations of the plaintiffs petition as true and to determine whether on the face of the petition the plaintiff is legally entitled to the relief sought. Ordinarily, the merits of an affirmative defense such as immunity are not to be considered when ruling on the validity of the exception .... [W]hen an exception of no cause of action is based on an affirmative defense, the exception must be overruled unless the allegations of the petition exclude every reasonable hypothesis other than the premise upon which the defense is based. Owens v. Martin, 449 So.2d 448 (La.1984). See also Kyle v. Civil Service Commission, 588 [595] So.2d 654 (La.1992).
The court has carefully scrutinized [Lyons’] petition in this case in light of the exception of no cause of action asserted by [the State] based on the affirmative defense of immunity. The court is compelled to maintain the exception because every reasonable hypothesis of liability gleaned by the court from the petition brings [Lyons’] claims within the scope of the immunity provisions of La. R.S. 29:785.

Lyons has appealed, urging that the trial court erred in dismissing her claims based on the provisions of La. R.S. 29:735. Lyons submits that if the matter had been “treated as a summary judgment, the evidence would demonstrate that the underlying defect in the premises predated her accident and that under the facts of this case,” the State’s affirmative defense would not apply.

II. ANALYSIS

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy against the defendant under the factual allegations of the petition. Cleco Corp. v. Johnson, 01-0175, p. 3 (La.9/18/01), 795 So.2d 302, 304. The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether the plaintiff is afforded a remedy in law based on the facts alleged in the pleading. Hoag v. State, 04-0857, p. 9 (La.12/1/04), 889 So.2d 1019, 1025.

|fiNo evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action. La. C.C.P. art. 931. An exception of no cause of action is likely to be granted only in the unusual case in which the plaintiff includes allegations that show on the face of the petition that there is some insurmountable bar to relief. Thus, dismissal is justified only when the allegations of the petition itself clearly show that the plaintiff does not have a cause of action or when its allegations show the existence of an affirmative defense that appears clearly on the face of the pleadings. City of New Orleans v. Board of Directors of Louisiana State Museum, 98-1170, p. 10 (La.3/2/99), 739 So.2d 748, 756.

The Act was enacted because of the existing possibility of the occurrence of emergencies and disasters resulting from natural or manmade causes. It created and designated the Governor’s Office of Homeland Security and Emergency Preparedness as the state homeland security and emergency preparedness agency to respond to these events. La. R.S. 29:722 A(l). The Act governs the State’s response to these emergencies and authorizes and provides for cooperation in disaster response. La. R.S. 29:722 A(7). Paragraph 2 of Section 723 identifying “disasters]” that trigger application of the Act specifically includes hurricanes as disasters. See Castille v. Lafayette City-Parish Consol. Gov’t, 04-1569, p. 3 (La. App. 3d Cir. 3/2/05), 896 So.2d 1261, 1263, writ denied, 05-0860 (La.5/13/05), 902 So.2d 1029. Louisiana Revised Statutes 29:735 A(l) further provides immunity from liability to the State, its political subdivisions, and other agencies engaged in emergency preparedness activities pursuant to the Act. “Emergency preparedness” means “the mitigation of, preparation for, response to, and the |7recovery from emergencies or disasters.” La. R.S. 29:723(4). “Emergency preparedness” is synonymous with “civil defense,” “emergency management,” and other related programs. Id. “Disaster” means “the result of a natural or man-made event which causes loss of life, injury, and property damage, including but not limited to natural disasters such as hurricane, tornado, storm, flood, high winds, and other weather related event....” La. R.S. 29:723(2). “Emergency” means “[t]he actual or threatened condition which has been or may be created by a disaster” or “[a]ny national or state emergency....” La. R.S. 29:723(3)(a) and (3)(b)(iii).

Pursuant to the Act, Governor Bobby Jindal issued Proclamation No. 51 BJ 2008, dated August 27, 2008, which declared that a state of emergency existed in the state of Louisiana as a result of Hurricane Gustav. The state of emergency and the results of the disaster extended through the date of Lyons’ alleged accident. According to the allegations of Lyons’ petition, the State was “directing the application process for obtaining disaster assistance in the [subject] building and parking lot,” where Lyons encountered the slippery surface that caused her to fall, and as Lyons was “attempting to obtain disaster assistance while waiting in the parking lot.” Thus, the allegations of the petition, when accepted as true, establish that the State was engaged in its post-Hurricane Gustav disaster assistance response efforts when Lyons’ injuries occurred. Pursuant to the provisions of the Act, the State is not liable for any injury sustained by Lyons while engaged in such emergency preparedness activity pursuant to the Act. La. R.S. 29:735. This immunity statute does not contain any qualification limiting the State’s immunity |sin the event that an injury is caused by a condition that predated the date of injury or the state of emergency. Thus, based on the allegations of the petition, whether the algae (or any other condition that may have caused Lyons to slip) existed prior to the date of Lyons’ accident or prior to August 27, 2008, is irrelevant to determining whether Lyons has stated a cause of action against the State. Because the affirmative defense, which establishes the State’s immunity, appears clearly on the face of the petition, the trial court properly sustained the State’s exception raising the objection of no cause of action and dismissed Lyons’ claims against the State.

In reaching our decision, we have also considered whether the trial court should have afforded Lyons the opportunity to amend her petition for a third time. Because the grounds of the objection raised though the State’s exception cannot be removed, the trial court properly dismissed Lyons’ claims without affording her an opportunity to amend. La. C.C.P. art. 934.

III. CONCLUSION

For these reasons, the trial court’s June 2, 2010 judgment is affirmed. Appeal costs are assessed against Lyons.

AFFIRMED.

      . Louisiana Revised Statutes 29:735 A(l) provides:
      Neither the state nor any political subdivision thereof, nor other agencies, nor, except in case of willful misconduct, the agents’ employees or representatives of any of them engaged in any homeland security and emergency preparedness activities, while complying with or attempting to comply with this Chapter or any rule or regulation promulgated pursuant to the provisions of this Chapter shall be liable for the death of or any injury to persons or damage to property as a result of such activity.

      . Louisiana Revised Statutes 29:724 provides, in pertinent part:
      A.The governor is responsible for meeting the dangers to the state and people presented by emergencies or disasters, and in order to effectuate the provisions of this Chapter, the governor may issue executive orders, proclamations, and regulations and amend or rescind them. Executive orders, proclamations, and regulations so issued shall have the force and effect of law.
      B. (1) A disaster or emergency, or both, shall be declared by executive order or proclamation of the governor if he finds that a disaster or emergency has occurred or the threat thereof is imminent....

      C. The declaration of an emergency or disaster by the governor shall:
      (1) Activate the state’s emergency response and recovery program under the command of the director of the Governor's Office of Homeland Security and Emergency Preparedness.

      D. In addition to any other powers conferred upon the governor by law, he may do any or all of the following:

      (2) Utilize all available resources of the state government and of each political subdivision of the state as reasonably necessary to cope with the disaster or emergency.
      (3) Transfer the direction, personnel, or functions of state departments and agencies or units thereof for the purpose of performing or facilitating emergency services.

      . Section 3 of the Governor's Proclamation provided, "The state of emergency extends from August 27, 2008 through September 26, 2008, unless terminated sooner."


author: CARTER, C.J.

text:
    Michael R. DUNCAN v. James POYDRAS, Albertine Poydras, Ford Motor Company, and XYZ Insurance Company.
    No. 2010 CA 2094.
    Court of Appeal of Louisiana, First Circuit.
    June 10, 2011.

      Earl A. Marcelle, III, Baton Rouge, LA, for Plaintiff/Appellant, Michael R. Duncan.
    Keith W. McDaniel, Allen V. Davis, Cov-ington, LA, for Defendant/Appellee, Ford Motor Company.
    Before CARTER, C.J., GAIDRY and WELCH, JJ.
   CARTER, C.J.

1 .This is an appeal from a summary judgment dismissing the products liability claim of plaintiff, Michael R. Duncan. For the following reasons, the judgment of the trial court is affirmed.

FACTS AND PROCEDURAL HISTORY

This is a products liability action arising out of a motor vehicle accident. On January 24, 2004, plaintiff, Michael R. Duncan, was in a motor vehicle accident with James Poydras. At the time of the accident, plaintiff was driving a 1993 Ford Taurus. In January 2005, plaintiff sued Ford Motor Company (“Ford”) and its liability insurer, XYZ Insurance Company, alleging the airbag in his vehicle was defective because it did not deploy in the crash and that the defect caused him to sustain injury. Ford moved for summary judgment pursuant to La.Code Civ. Pro. Ann. art. 966 on the basis that there was no evidence in the record to prove plaintiffs injuries were caused by a defect in the vehicle. In its final judgment, the trial court denied a motion to compel discovery filed by plaintiff and granted Ford’s motion for summary judgment, dismissing plaintiffs claims against Ford with prejudice.

Plaintiff now appeals.

DISCUSSION

Plaintiff contends the trial court erred both in denying his motion to compel discovery and in granting defendant’s motion for summary judgment before allowing him to depose defendant’s expert.

Plaintiff filed this suit in 2005. In March 2008, the parties agreed to a discovery deadline of August 11, 2008. On plaintiffs motion, the discovery ^deadline was extended first to February 11, 2009, and again to December 11, 2009. A status conference was held in June 2009 to establish new deadlines at the urging of plaintiff, but counsel for plaintiff failed to appear.

Plaintiff informed defendant in April 2009 that he selected his expert witness. However, plaintiff did not respond to defendant’s request to take a deposition of the expert. Defendant subsequently sent a notice of deposition to plaintiff, but both the expert and counsel for plaintiff failed to appear on the scheduled day. In November 2009, plaintiff informed defendant that he would not retain the expert witness he previously selected. At this time, through an e-mail, plaintiff informally requested an opportunity to depose defendant’s expert. In this e-mail, plaintiff states, “your expert will nonetheless be able to provide his opinion on similar vehicles. Therefore, I ask that you please make your expert available for deposition before December 11th.”

Plaintiffs e-mail request did not follow the procedure set out in the Louisiana Code of Civil Procedure Annotated for requesting a deposition. A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. La.Code Civ. Proc. Ann. art. 1438. The notice must provide, among other things, the time and place for taking the deposition. Id. Plaintiff never gave such notice to defendant.

Louisiana Code of Civil Procedure Annotated article 966 deals "with the procedure for filing a motion for summary judgment. In particular, paragraph C(l) states, “[ajfter adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.” It is well established that trial courts in Louisiana have broad discretion when regulating pre-trial discovery, which discretion will not be disturbed on appeal absent a clear showing of abuse. Moak v. Illinois Central R.R. Co., 93-0783 (La.1/14/94), 631 So.2d 401, 406. Moreover, it is not an abuse of the trial court’s wide discretion in discovery matters to entertain a motion for summary judgment before discovery has been completed. Baker v. Knapp, 45,404 (La.App. 2 Cir. 6/23/10); 42 So.3d 1044, 1049, writ denied, 10-2073 (La.11/12/10), 49 So.3d 895. It is within the trial court’s discretion to render a summary judgment or require further discovery. Id.

In this case, plaintiff had six years from the time of the accident (January 24, 2004) to the filing of the motion for summary judgment to complete discovery and to properly depose defendant’s expert. It was not until December 2009, the twice extended discovery deadline, that plaintiff filed a motion to compel discovery to obtain the deposition. We do not find, therefore, that the trial court abused its discretion in denying plaintiffs motion to compel discovery or in granting defendant’s motion for summary judgment without allowing him to depose defendant’s expert witness.

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether a summary judgment is appropriate. McIntyre v. The St. Tammany Parish Sheriff, 02-0700 (La.App. 1 Cir. 3/28/03); 844 So.2d 304, 308-309. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions. La.Code Civ. Proc. Ann. art. 966(A)(2). The procedure is favored and shall be construed to accomplish these ends. Id. A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no ^genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La.Code Civ. Proc. Ann. art. 966(B).

The burden of proof remains with the mover, but if the mover will not bear the burden of proof at trial on the matter that is before the court, the mover’s burden does not require him to negate all essential elements of the adverse party’s claim, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. La.Code Civ. Proc. Ann. art. 966(C)(2). Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Id. A court may grant summary judgment that is dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case. La.Code Civ. Pro. Ann. art. 966(E).

We have conducted a de novo review of the record in this case and agree with the trial court that no genuine issue of material fact exists and defendant is entitled to judgment as a matter of law. Defendant met its initial burden by pointing out there is no evidence showing plaintiffs damages were caused by a defect in the Ford vehicle. Plaintiff failed to produce factual support sufficient to establish that he would be able to satisfy his evidentiary burden of proof at trial. In the absence of any evidence suggesting that due to some unreasonably dangerous characteristic of the Ford vehicle as defined under the Louisiana Products Liability Act the airbag did not deploy, summary judgment was appropriate.

| (¡DECREE

For the foregoing reasons, the judgment of the trial court denying plaintiffs motion to compel and granting the motion for summary judgment is affirmed. Costs of this appeal are assessed to the plaintiff/appellant, Michael R. Duncan.

AFFIRMED.

      . Plaintiff also named James Poydras and his wife, Albertine Poydras, as defendants in this suit. We recognize there may be outstanding claims against these defendants. However, the judgment against Ford is appealable under La.Code Civ. Proc. Ann. art. 1915(A)(1).

      . Plaintiff contends summary judgment was not the appropriate procedure to dispose of his fact-intensive cause of action. We disagree. The Louisiana Supreme Court recently reinstated a district court’s judgment granting a motion for summary judgment in a products liability case. See Payne v. Gardner, 10-2627 (La.2/18/11); 56 So.3d 229.


text:
    WINN-DIXIE LOUISIANA and Sedgwick Claims Management v. HCA MANAGEMENT SERVICES, L.P.
    No. 2010 CA 2205.
    Court of Appeal of Louisiana, First Circuit.
    June 10, 2011.

      Lance S. Ostendorf, New Orleans, LA, for Plaintiffs-Appellees Winn-Dixie and Sedgwick Claims Management.
    Franklin D. Beahrn, A. Rebecca Wil-more, New Orleans, LA, for Defendants-Appellants HCA Management Services, L.P. and Lakeview Regional Medical Center.
    Before KUHN, PETTIGREW, and HIGGINBOTHAM, JJ.
   KUHN, J.

[ gDefendants-appellants, Lakeview Regional Medical Center (Lakeview), and its administrator, HCA Management Services, L.P. (HCA), appeal the judgment of the Office of Workers’ Compensation Administration (OWCA), awarding plaintiff-appel-lee, Winn-Dixie Louisiana (Winn-Dixie), reimbursement for overpayment it made to Lakeview on behalf of its injured employee. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The parties do not dispute that Winn-Dixie employee, Nowert Hills, had a work-related accident in the course and scope of his employment for which he received treatment. Later, Hills complained of neck pain and treated with Dr. Jeffery Oppenheimer. Dr. Oppenheimer diagnosed Hills with spondylosis, a degenerative condition of the vertebra of his neck, and recommended that he undergo an interior cervical diskectomy and fusion. On January 7, 2005, Hills presented at Lake-view for surgery, which was performed the same day. After a day of observation, Hills was discharged from the hospital on January 9, 2005.

On February 3, 2005, Winn-Dixie, the undisputed party responsible for the costs of Hills’ surgery under the Louisiana Workers’ Compensation Act, received a bill for $81,044.33 from Lakeview. Winn-Dixie sent a check for $4,118.00 to Lake-view, which the employer determined was the amount due for the New Orleans-based surgery under the OWCA reimbursement schedule. On March 25, 2005, as Lake-view’s administrator, HCA sent a letter to Winn-Dixie which included a section that was boxed off from the remainder of the letter. According to the description set forth in the boxed section, under state law, Winn-Dixie owed 85% . of the billed charges. On April 25, 2005, a Winn-Dixie agent paid $64,770.11 to |..¡Lakeview for the charges incurred for Hills’ surgery. A subsequent audit by an agent for Winn-Dixie revealed that Lakeview had charged $39,049.00 for the implants that had been surgically placed into Hills. Winn-Dixie contacted HCA and Lakeview, advising that it did not believe the hospital was entitled to either 85% of the billed surgical charges or the amount billed for the implants.

The parties ultimately agreed that Lake-view was not entitled to the billed amount of the implants, and Winn-Dixie was reimbursed $22,302.82 for the overcharge. But HCA and Lakeview refused to reimburse any other amount to Winn-Dixie. A Winn-Dixie agent submitted a special reimbursement consideration request with OWCA. On June 5, 2006, an assistant secretary with the Louisiana Department of Labor, OWCA (DOL/OWCA) issued a ruling concluding that, based on the documentation provided by Winn-Dixie, Lake-view was entitled to no additional payments in excess of the New Orleans per diem rate in conjunction with Hills’ surgery.

After HCA and Lakeview refused to reimburse the overpayment so as to conform to the DOL/OWCA ruling, Winn-Dixie, joined by its administrator Sedgwick Claims Management, filed this petition. After a trial on the merits, an OWCA judge determined that Lakeview had not met the criteria to charge 85% of the billed hospital charges for Hills’ surgery and, thus, Winn-Dixie was entitled to reimbursement in the amount of $31,578.29. This appeal by FICA and Lakeview followed in which, without challenging the quantum of the award, they assert that |4OWCA erred in its construction of terms of art used in the regulations that set forth the criteria for additional compensation.

DISCUSSION

As this court noted in Gray Ins. Co. v. St. Charles Gen. Hosp., 96-1637, pp. 2-3, 696 So.2d 577, 578 (La.App. 1st Cir.6/20/97), the Louisiana legislature has established a reimbursement schedule for medical, surgical, and hospital services due under our workers’ compensation laws. La. R.S. 23:1034.2(B) directs OWCA to adopt rules and regulations necessary to establish and implement such a schedule. Fees in excess of this schedule are not recoverable against the employee, employer, or workers’ compensation insurer. La. R.S. 23:1034.2(D).

The reimbursement schedule is set forth in Title 40 of the Louisiana Administrative Code. It provides a per diem rate that varies by locality. L.A.C. 40:2505. It also provides for additional payments for medical cases that are “outliers,” i.e., statistical anomalies. Hospitalizations for acquired immune deficiency syndrome, acute myocardial infarction, and severe burns are considered “automatic outliers” and are reimbursed at 85% of the billed hospital charges. L.A.C. 40:2519(A). Other cases, after an appeal process, may be reimbursed as outliers at 85% if they are “atypical in nature due to case acuity causing unusually high charges when compared to the provider’s usual case mix.” L.A.C. 40:2519(B). A case originally paid at the per diem rate may be appealed if (1) the total inpatient hospital surgical charges are greater than or equal to $100,000.00, (2) the total inpatient hospital medical charges are greater than or equal to $75,000.00, or (3) the average charge per day is equal to 1.75 times the applicable daily rate. L.A.C. 40:2519(B)(1).

Uf a health-care provider believes a case fits the appealable criteria, it may submit a request for review to the insurer. If that request is denied, the provider may file a “special reimbursement consideration appeal” with the OWCA. L.A.C. 40:2519(B)(2) and (3). An appeal of that decision may then be filed using the same procedures established for dispute resolution of claims for workers’ compensation benefits. La. R.S. 23:1034.2(F).

As noted above, in this case, it was Winn-Dixie, as payor, rather than Lake-view (and/or HCA), the provider in this case, that requested the review under L.A.C. 40:2519 B. And when HCA and Lakeview chose not to conform to the ruling of DOL/OWCA, it was employer Winn-Dixie that filed a petition using the same procedures established for dispute resolution of claims for workers’ compensation benefits. We find no error in this approach.

At the trial before the OWCA, the burden of proving outlier status so as to qualify for payments in addition to the surgical per diem — i.e., reimbursement at the rate of 85% of the billed charges — was with Lakeview (and HCA) as the party claiming entitlement to it. See Gray Ins. Co., 96-1637 at p. 3, 696 So.2d at 579. Thus, HCA and Lakeview had to show that Hills’ case was “atypical in nature due to case acuity causing unusually high charges when compared to the provider’s usual case mix.” Gray Ins. Co., 96-1637 at p. 3, 696 So.2d at 579.

But L.A.C. 40:2519(B) does not define “acuity.” As noted by the Gray court, “acuity” is generally defined as clarity or keenness of sense perception.96-1637 at p. 4 & n. 9, 696 So.2d at 579 & n. 9. Recognizing the inappropriateness of that definition in the interpretation of the plain language of the regulation, the Gray court concluded the drafters meant “acuteness,” which, lñthe court noted, in a medical sense means having a short and relatively severe course. 96-1637 at p. 4 & n. 10, 696 So.2d at 579 & n. 10.

HCA and Lakeview suggest that the Gray court’s interpretation of “case acuity” does not comport with the meaning of the term as used in the health care industry when dealing with billing issues. In support of this assertion, they offered testimony from Patrick Clune, the chief financial officer for HCA Houston Shared Services, admitted as an expert in hospital financing, billing, and collections.

In determining case acuity and case mix, Clune explained that hospitals measure “intensity” in terms of resource consumption as well as risk. He testified that in determining the case acuity for Hills’ surgery, he examined the case mix for Lake-view in 2005 when the surgery was undertaken. Based on the aggregation of all patients within the hospital setting, accounting for all inpatient hospital procedures, Clune determined that Lakeview’s case mix in 2005 was 1.31. And he calculated Hills’ case acuity at 2.3351. Clune stated that the difference between Hills’ case acuity and Lakeview’s case mix was almost double that of the general population, meaning that Hills’ case was much more intense requiring the consumption of more resources. Thus, HCA and Lake-view maintain that because the average per day charge for Hills’ case equates to in excess of 1.75 times the applicable per diem rate under L.A.C. 40:2519(B)(l)(c), Lakeview is entitled to outlier status.

Clune admitted in calculating case mix vis-á-vis case acuity, all inpatient procedures performed at the hospital were an element of the determination. Therefore, unlike the case in Gray where this court reversed the OWCA |7conclusion that St. Charles General Hospital was entitled to outlier status because it had proven that the surgical procedure undertaken was atypical in nature to similar lumbar surgery cases performed at that-hospital, see 96-1637 at p. 3, 696 So.2d at 579, Clune’s testimony supports a finding that Hills’ case was atypical in nature to all inpatient procedures conducted at Lakeview in 2005, which is a broader case mix population than that utilized in Gray. Clune admitted that in using the population of all inpatient procedures in the case mix assessment, everything from deliveries of babies to wart removals was included. Such an approach, particularly in a case like this where a broad population of procedures was utilized to determine a hospital’s case mix, essentially permits the hospital to establish outlier status and entitlement to 85% of the billed charges simply by consuming resources in excess of the reimbursement rate established by OWCA. This is in derogation of the legislative directive that requires OWCA to establish a reimbursement schedule that includes charges “limited to the mean of the usual and customary charges for such care, services, treatment, drugs, and supplies,” with the obvious purpose of capping the amount providers can charge employees for work-related expenses. See La. R.S. 23:1034.2(0(1). Thus, like the Gray court, we believe the test for outlier status encompasses more than whether a surgery is typical when compared, not only to other surgeries involving the same area of the body but also, to all other inpatient procedures performed at a hospital. See 96-1637 at p. 4, 696 So.2d at 579. Accordingly, we interpret “due to case acuity” in L.A.C. 40:2519(B) to mean “acuteness,” i.e., having a short and relatively severe course.

1 ¡According to the medical records and testimony of Winn-Dixie agent, registered nurse Bonita Saucier, Hills had spondylosis, a degenerative condition that had deteriorated to where he was having radicular symptoms in his arms. As a degenerative condition, she distinguished spondylosis from one that was acute and an emergency situation. Hills’ operative report stated the surgery was a routine cervical procedure with no indications of any complications. Nothing in the operative report suggested that Hills required acute or intensive care, which resulted in additional costs for the hospital stay. The hospital summary noted a routine hospital course with a discharge the second postoperative day. Hills was in the surgical suite approximately three hours and twenty-two minutes for a procedure that was concluded in less than two hours. The anesthesia report indicated that there had been no complications and that, from the anesthesia aspect, the surgery had been uneventful. And the hospital progress notes stated that after surgery, Hills’ radi-cular pain had been eliminated and there were no indications of any problems. HCA and Lakeview offered no evidence in contradiction to that established by Saucier.

Based on the evidence presented to OWCA, we find no error in its conclusion that HCA and Lakeview are not entitled to special reimbursement consideration under L.A.C. 40:2519(B) having failed to establish that Hills’ case was atypical due to case acuity since nothing supports a finding that his case was a short and relatively severe course of medical treatment. Accordingly, OWCA | acorrectly ordered HCA and Lakeview to reimburse Winn-Dixie the amount in excess of the New Orleans surgical per diem for two days.

DECREE

For these reasons, the OWCA judgment is affirmed. Appeal costs are assessed against defendants-appellants, HCA Management Services, L.P. and Lakeview Regional Medical Center.

AFFIRMED.

      . The DOL/OWCA ruling also confirmed that under Louisiana’s workers’ compensation reimbursement schedule, HCA and Lakeview were entitled to charge no more than the invoiced cost of the implants plus 20% as profit. Thus, reimbursement to Winn-Dixie for the approximately 400% markup on the implants

      . We find no merit in HCA and Lakeview’s contention that the trial court erred in relying on the letter issued by DOL/OWCA concluding that the provider was entitled to no more than the New Orleans surgical per diem for two days. See La. R.S. 23:1317 A. More importantly, OWCA's conclusion that FICA and Lakeview failed their burden of proof is supported by the evidence even without consideration of the letter containing the ruling of DOL/OWCA. Thus, there was no error, was proper.


author: WHIPPLE, J.

text:
    Roshall L. ARY v. PERSONAL CARE.
    No. 2010 CA 2291.
    Court of Appeal of Louisiana, First Circuit.
    June 10, 2011.

      Robert L. Campbell, Baton Rouge, LA, for Plaintiff/Appellee, Roshall L. Ary.
    Russell Stegeman, Madisonville, LA, for Defendant/Appellant, Personal Care.
    Before WHIPPLE, McDONALD, and McClendon, jj.
   WHIPPLE, J.

| ¡/This matter is before us on appeal by defendant, Personal Care, from a judgment of the Office of Workers’ Compensation (“OWC”) in favor of claimant, Roshall L. Ary. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Ary was employed by Personal Care as a security officer, personal care attendant, and medical technician. On July 2, 2009, Ary was involved in an automobile accident while allegedly returning a client he found walking on the side of the road to the facility, after Ary’s return from a personal errand. Personal Care refused to pay claimant benefits and on July 21, 2009, Ary filed a disputed claim for compensation.

In response, on August 13, 2009, an answer on behalf of Personal Care was filed by Margaret L. Chaney, whose stated title was “President,” denying the claim set forth by Ary. However, thereafter, no representative from Personal Care appeared at the scheduling conference, pretrial mediation, or the trial of the disputed claim, despite the fact that Personal Care was served with a copy of the scheduling conference order, which reflected the dates set for pretrial mediation and trial.

On May 10, 2010, the matter was called for trial, but no one appeared on behalf of Personal Care. Before hearing the matter, the OWC noted on the record that service of the scheduling conference order had been made on Personal Care on January 12, 2010. At the conclusion of claimant’s case and testimony, the OWC rendered oral reasons for judgment, finding in favor of the claimant. Specifically, the OWC found that claimant suffered a work-related accident on July 2, 2009, which resulted in injuries and that the medical treatment rendered to Ary at Our Lady of the Lake Regional Medical Center, Baton Rouge Orthopaedic Clinic, and Spine Diagnostic & Treatment Center were related to his work | ¡¡accident. The OWC then awarded indemnity benefits, temporary total disability benefits, interest on indemnity benefits, medical benefits, penalties and attorney’s fees, with interest, finding that Personal Care had failed to reasonably controvert the claim.

However, on May 12, 2010, counsel retained by Personal Care filed a motion to enroll and continue as well as a motion for new trial. In support of its motion for new trial, Personal Care contended that on May 7, 2010, it had faxed to the OWC a copy of its motion to enroll and continue the May 10, 2010 trial, and that it would be in the “interest of fairness and due process” to grant a new trial. After a hearing, the OWC denied the motion for new trial on July 2, 2010. A written judgment conforming to the OWC’s prior reasons was signed on July 20, 2010.

In denying the motion for new trial, the OWC noted that Margaret Chaney had personally signed for the scheduling order in this case on January 12, 2010, five months before the trial date. The OWC further noted that it did not receive Personal Care’s motion to continue, which counsel elected to fax on Friday, May 7, 2010, until after the trial had concluded on Monday, May 10, 2010. The OWC concluded that granting such relief and having to “redo” the trial would be unjust to the claimant and his counsel, especially since neither of them were notified by Personal Care or its counsel of the motion to continue. Accordingly, a judgment denying the motion for new trial was signed by the OWC on July 20, 2010.

From this judgment Personal Care filed a suspensive appeal, contending that the OWC erred: (1) in granting the “default judgment” because the evidence presented does not establish a prima facie case for relief under the law; and (2) in failing to grant a new trial.

J^DISCUSSION

Assignment of Error Number One

At the outset, we note that Personal Care incorrectly characterizes the judgment on the merits rendered by the OWC as a “default judgment.” A judgment by default is that which is rendered against a defendant who fails to plead or otherwise answer within the time prescribed by law. LSA-C.C.P. art. 1843; see also LSA-C.C.P. arts. 1701-1704. In the instant case, Personal Care filed an answer to claimant’s disputed form for compensation, thereby making an appearance in the underlying proceedings and joining issues for trial. Personal Care, however, simply failed to appear at trial despite receiving notice of the trial date. A trial of the merits was conducted and claimant presented his case in the defendant’s absence. Thus, Personal Care errs in its contention that the judgment rendered on the merits by the OWC constitutes and should be subjected to review as a “default judgment.”

Nonetheless, as appeals are favored in law, we will address Personal Care’s argument that the evidence presented at trial was insufficient to support the judgment rendered by the OWC herein. Specifically, Personal Care contends on appeal that the medical evidence failed to establish that the treatment received by claimant was causally related to the work injury alleged and that the accident took place within the course and scope of claimant’s employment.

The same standard of review applicable to factual findings of district courts, the “manifest error-clearly wrong” standard, is also applicable to factual findings of a workers’ compensation judge. Smith v. J.E. Merit Constructors, Inc., 2001-2824 (La.App. 1st Cir.11/8/02), 835 So.2d 749, 753. Accordingly, for an appellate court to reverse a workers’ compensation judge’s factual finding, it must find from the record that a reasonable factual basis does not exist for the finding of the workers’ compensation judge or that the record establishes that the finding is clearly wrong. See Stobart v. State, through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, the reviewing court must do more than simply review the record for some evidence that supports or controverts the workers’ compensation judge’s finding. The reviewing court must review the record in its entirety to determine whether the workers’ compensation judge’s finding was clearly -wrong or manifestly erroneous. See Stobart v. State, through Department of Transportation and Development, 617 So.2d at 882.

The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart v. State, through Department of Transportation and Development, 617 So.2d at 882. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Stobart v. State, through Department of Transportation and Development, 617 So.2d at 882. Where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State, through Department of Transportation and Development, 617 So.2d at 882.

At trial, Ary testified that on July 2, 2009, he began his shift at Personal Care at 3:00 p.m. He further testified that at 4:00 p.m. when he left to get a Rpack of cigarettes at the store, he received a phone call advising that one of his employer’s clients had left the facility and was seen walking up the road. Ary found the patient and was in the process of returning him to the facility when he was involved in an accident. Ary testified that he sought medical treatment after the accident at Our Lady of the Lake Hospital and subsequently received treatment from Dr. Joseph W. Turnipseed at the Spine Diagnostic & Pain Treatment Center and Diagnostic Health Baton Rouge for pain in his neck causing tingling and numbness down his arm, as well as pain in his lower back, right hip, and right knee. Ary further testified that at the time of trial, he was still under the treatment of Dr. Turnipseed, and Dr. Jason E. Smith, an orthopaedic surgeon at Baton Rouge Orthopaedic Clinic, upon referral by Dr. Turnipseed. Ary’s medical records, documenting his injury and outlining the treatment he received were also introduced into evidence. According to Ary, the expenses were all for treatment of injuries he received in the accident of July 2, 2009.

In awarding benefits to Ary, the OWC noted that she had “reviewed the medical documentation and in light of claimant’s testimony, the Court finds that Mr. Ary was employed by Personal Care Services, Inc.” The OWC further found “[tjhat on July 1, 2009 Mr. Ary was injured in the course and scope of his employment in a motor vehicle accident.” On review, and given the record before us, we are unable to say the OWC was clearly wrong in these determinations, which we also find are reasonable in light of the testimony and evidence presented. Accordingly, we find no merit to Personal Care’s first assignment of error in which it contends that the evidence presented at the trial was insufficient to support the judgment rendered herein.

17Assignment of Error Number Two

Personal Care also argues on appeal that the OWC erred in failing to grant its motion for new trial. Specifically, Personal Care contends that the fact that the OWC judge was unaware that counsel for Personal Care had faxed a motion requesting a continuance to the OWC office the afternoon before trial constitutes “good cause,” entitling it to a new trial. We disagree. As the OWC noted, neither counsel nor a corporate representative for Personal Care contacted claimant or his counsel to inform anyone that a motion requesting a continuance had been faxed to the OWC office on the Friday afternoon before the Monday morning trial. Moreover, even after counsel for Personal Care placed a phone call to the OWC office on the morning of trial to inquire about the matter and was informed by a staff member “they didn’t know anything,” counsel for Personal Care made no further effort to discuss the matter with the OWC judge or opposing counsel, nor did he appear for trial despite the fact that he had not received confirmation that his faxed motion requesting a continuance had, in fact, been granted.

Louisiana Code of Civil Procedure article 1973 provides that a new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law.

The OWC’s refusal to grant a new trial was entirely within its discretion. LSA-C.C.P. art. 1973; see also Mitchell v. Dresser Industries, Inc., 472 So.2d 183, 185 (La.App. 4th Cir.1985). Moreover, the determination to grant or deny a motion for new trial shall not be disturbed absent an abuse of the OWC’s wide discretion. Burris v. Wal-Mart Stores, Inc., 94-0921 (La.App. 1st Cir.3/3/95), 652 So.2d 558, 561, writ denied, 95-0858 (La.5/12/95), 654 So.2d 352. After considering the circumstances herein, the OWC concluded that good grounds did not exist herein to grant a new trial. On review, and considering the circumstances herein and in particular that notice of trial had issued many months prior to the trial date, we find no abuse of discretion or error by the OWC.

Accordingly, we find no merit to this assignment of error.

CONCLUSION

For the above and foregoing reasons, the July 20, 2010 judgment of the OWC is affirmed. Costs of this appeal are assessed against the defendant/appellant, Personal Care.

AFFIRMED.

      . Notably, the motion to enroll and continue contains an assertion by counsel "that counsel has just been retained, pro bono,” that counsel had an appearance scheduled elsewhere, and that counsel felt "that it would be in the best interest of all parties to reschedule the mediation prior to trial.” (Emphasis added).

      . With reference to Personal Care’s additional contention that it was not given proper notice of Ary’s claim initially, as required by LSA-R.S. 23:1301, et seq., we note that appellate courts will not consider issues that were not raised in the pleadings, were not addressed by the trial court, or are raised for the first time on appeal. Segura v. Frank, 93-1271 (La.1/14/94), 630 So.2d 714, 725, cert. denied, 511 U.S. 1142, 114 S.Ct. 2165, 128 L.Ed.2d 887 (1994); Stewart v. Livingston Parish School Board, 2007-1881 (La.App. 1st Cir.5/2/08), 991 So.2d 469, 474. Thus, because this issue was not raised below by Personal Care, the issue is not preserved for review on appeal.

      . Although an interlocutory judgment, such as a denial of a motion for new trial, is not generally appealable, it is subject to review by an appellate court when an appealable judgment is rendered in the same case. Moran v. G & G Construction, 2003-2447 (La.App. 1st Cir.10/29/04), 897 So.2d 75, 83 n. 4, writ denied, 2004-2901 (La.2/25/05), 894 So.2d 1148; see also Nelson v. Teachers' Retirement System of Louisiana, 2010-1190 (La.App. 1st Cir.2/11/11), 57 So.3d 587, 589 n. 2.

      . Although Personal Care argues that the result herein is harsh, similar results have been upheld in other cases. See Piper v. Dillard's Department Store, 93-0081 (La.App. 4th Cir.6/30/93), 621 So.2d 865, writ denied, 93-2097 (La.11/12/93), 627 So.2d 654 (where appellate court determined the OWC’s dismissal of workers' compensation claim was justified when claimant in workers’ compensation case chose not to appear for trial after receiving notice of the trial date); Mitchell v. Accent Construction Company, 2000-0996 (La.App. 4th Cir.3/14/01), 785 So.2d 864 (where a judgment entered by the OWC awarding claimant benefits at trial after employer chose not to appear, citing insufficient notice, was affirmed by appellate court); Mitchell v. Dresser Industries, Inc., 472 So.2d 183 (where appellate court affirmed dismissal of plaintiff’s case when his attorney failed to appear for trial after having received notice of the trial date); Payne v. Glass, 41,232 (La.App. 2nd Cir.8/23/06), 939 So.2d 526 (where appellate court dismissed employer's action for nullity where employer attempted to annul judgment obtained in its absence after employer had been served with notice of trial date).