author: JAMES F. McKAY, III, Judge.

text:
    Johnny BELL, Jr. v. MID CITY PRINTERS, INC.
    No. 2010-CA-0818.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 22, 2010.

      Michael W. Whitehead, Michael W. Whitehead, LLC, Livingston, LA, for Plaintiff/Appellant.
    Bradley P. Naccari, Juge Napolitano Guilbeau Ruli Frieman & Whiteley, Me-tairie, LA, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY, III, Judge, DENNIS R. BAGNERIS, SR., Judge, DAVID S. GORBATY).
   JAMES F. McKAY, III, Judge.

| plaintiff, Johnny Bell, Jr., appeals the judgment of the Office of Workers’ Compensation, finding that back surgery was not medically necessary for the injuries sustained in his work-related accident, denying his claim for indemnity benefits, and denying his claim for penalties and attorneys’ fees. Defendant, Mid City Printers, Inc., answers this appeal, asserting that the workers’ compensation judge (“WCJ”) erred in failing to find that Mr. Bell willfully made false statements for the purpose of obtaining benefits. For the reasons set forth below, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY:

On May 3, 2001, while acting in the course and scope of his employment as a delivery driver for Mid City Printers, Mr. Bell was rear-ended by an eighteen wheeler. Immediately after the accident, Mr. Bell treated at St. Tammany Hospital for neck and back pain. Mid City Printers began paying medical and indemnity benefits to Mr. Bell on May 7, 2001.

Mr. Bell treated with chiropractor Dr. Robert Thompson from May 2001 through May 2003. On May 21, 2001, Dr. Thompson released Mr. Bell to return |2to work with lifting restrictions of less than twenty pounds. On May 23, 2001, Dr. Thomson re-evaluated Mr. Bell and noted that he should be excused from work until his condition improved.

Mr. Bell returned to work with Mid City Printers approximately two weeks after the accident. Indemnity benefits were terminated on June 7, 2001, but medical benefits continued to be paid. Mr. Bell’s indemnity benefits were voluntarily reinstated on June 21, 2009.

On his return to work at Mid City Printers, Mr. Bell was offered the same number of hours at the same rate of pay. Mid City Printers made modifications for Mr. Bell, providing him assistance with heavy lifting. Mr. Bell was permitted to attend his doctors’ appointments during the work day without a reduction in pay. He was also permitted to miss work due to pain as long as he notified his supervisor. Mid City Printers treated these absences as excused absences.

On February 1, 2002, Mr. Bell was terminated from his employment for “excessive absence.” David Mack, Mr. Bell’s supervisor at the time he was terminated, testified at trial that throughout his employment (before and after the accident) Mr. Bell often missed work without calling in. He stated that he warned Mr. Bell more than once, explaining to Mr. Bell that if he kept missing work without calling in, he would be let go.

On May 2, 2002, Mr. Bell filed a disputed claim for compensation, seeking indemnity benefits, medical benefits, penalties and attorneys’ fees. Following his | ^termination from Mid City Printers, Mr. Bell worked for Sycamore Hydraulics, as a delivery driver, from July 30, 2002, until November 18, 2002.

On January 6, 2004, Mr. Bell began treating with Dr. Stefan G. Pribil, a neurosurgeon. Dr. Pribil diagnosed Mr. Bell with a disc herniation at L3-4 and L4-5 with decreased disc space at L5-S1. Dr. Pribil recommended a CT scan and opined that Mr. Bell would need surgical intervention. Dr. Pribil indicated in his January 12, 2007 report that he needed to review Mr. Bell’s MRI, but stated surgery was “an option” at that time because Mr. Bell was not improving with conservative therapy-

Mr. Bell saw Dr. Gregor J. Hoffman for an updated independent medical examination (“IME”) on August 23, 2003, October 23, 2003, and November 22, 2004. After reviewing Mr. Bell’s history and diagnostic studies, Dr. Hoffman noted degenerative disc disease at the L4-5 level together with mild bulges at L3-4 and L5-S1. Dr. Hoffman further indicated that nonoperative treatments had been exhausted, and recommended another MRI, possibly a myelogram/CAT scan. The record does not reflect any follow-up reports by Dr. Hoffman after November 22, 2004.

Mid City Printers sought a second medical opinion from Dr. Robert L. Applebaum, a neurosurgeon. Dr. Applebaum examined Mr. Bell on September 10, 2004, and reviewed Mr. Bell’s history, including Dr. Pribil’s recommendation of surgery. In March 2006, Dr. Applebaum recommended a myelogram followed by a CAT scan. Dr. Applebaum examined Mr. Bell a second time on May 21, 2007, |4and recommended that the myelogram and CAT scan be performed. Dr. Applebaum examined Mr. Bell on November 17, 2008, and reiterated his recommendation for a myelogram and CAT scan. In a May 20, 2009 report, Dr. Applebaum indicated that he was unable to determine the medical necessity of lumbar surgery without the recommended tests. Mr. Bell testified at trial that he was unwilling to undergo the myelogram because he was told it could harm his kidneys (being diabetic) and because other doctors (Dr. Dietze and Dr. Ricciardi) said they would not recommend a myelogram.

Mr. Bell treated with Dr. David Shawa, Dr. Joseph Crapanzano, Jr., and Dr Adrian Blotner for pain management, receiving epidural steroid injections and various pain medications. Beginning July 2007, through the date of trial, Mr. Bell treated with Dr. James B. Denney for pain management. Dr. Denney prescribed pain medications and conducted random drug screenings to ascertain whether Mr. Bell was compliant with his medications.

The drug screening conducted February 1, 2008, demonstrated that Mr. Bell tested negative for his prescribed medication, Soma, in spite of the fact that Mr. Bell claimed to have taken the medication at 8:00 a.m. that morning. Mr. Bell also tested positive for marijuana at that time.

A follow-up drug screening on February 2, 2009, demonstrated that Mr. Bell tested negative for Soma and Valium (both prescribed by Dr. Denney) even though Mr. Bell indicated that he took Soma at 8 p.m. the night before and Valium at 8:00 15a.m. that morning. The screening also demonstrated that Mr. Bell tested positive for marijuana and amphetamines (not prescribed by Dr. Denney).

Dr. Denney stated in his deposition that testing negative for Soma and Valium was inconsistent with Mr. Bell’s claims that he was taking his medications as prescribed. He explained that Mr. Bell admitted to using marijuana, but claimed he did not know what amphetamines were. Dr. Den-ney found that claim to be incredulous. Dr. Denney further explained that there was some concern that Mr. Bell could have been selling his medications on the street. He considered sending Mr. Bell for substance abuse counseling, but wanted to continue his medications through surgery and make changes thereafter.

At trial, Mr. Bell stated that he could not explain the discrepancy concerning the negative test results for Soma and Valium. He admitted that he was given an amphetamine by a friend, only once in February 2009. The record reflects, however, that Mr. Bell tested positive for amphetamines and marijuana on March 12, 2008, at Lake-view Regional Medical Center Emergency Room after an automobile accident.

On February 2, 2009, after Dr. Pribil moved his practice to Texas, Mr. Bell began treating with neurosurgeon Dr. Donald D. Dietze. Following a lumbar disco-gram performed March 5, 2009, Dr. Dietze recommended a lumbar artificial disc replacement at L3-4 and L4-5 and an anteri- or lumbar interbody fusion at L5-S1.

l(;In light of the conflicting medical evidence regarding Mr. Bell’s need for surgery, the WCJ appointed orthopedic surgeon Dr. James E. Ricciardi to conduct an IME. After examining Mr. Bell on July 30, 2009, reviewing test results, and noting Dr. Pribil and Dr. Dietze’s recommendations for back surgery, Dr. Ricciardi opined that Mr. Bell was a surgical candidate, but noted that surgery would not relieve all of Mr. Bell’s pain and may not allow him to be gainfully employed. Dr. Ricciardi later clarified his opinion in his September 24, 2009 deposition by explaining that he never said surgery was necessary. Rather, he considered surgery to be an option for Mr. Bell.

On October 16, 2009, Mid City Printers was granted leave to file a supplemental answer to Mr. Bell’s disputed claim for compensation, wherein Mid City Printers alleged that Mr. Bell violated La. R.S. 23:1208 by making false statements to Dr. Denney (that he was compliant with his medications) for the purpose of obtaining workers’ compensation benefits.

The matter was brought for trial on October 23, 2009. Mid City Printers objected to the introduction of Dr. Pribil’s depositions, dated June 22, 2004, and January 11, 2005, on the basis that the depositions were not listed on Mr. Bell’s pre-trial statement, and only a two-day notice was provided. Mid City Printers also objected to the introduction of the depositions because Dr. Pribil was deposed in connection with Mr. Bell’s tort action, not the instant case. The WCJ denied introduction of the depositions, but allowed Mr. Bell to make a proffer.

|7Following a three day trial, the WCJ rendered judgment, finding: 1) Mr. Bell failed to carry his burden that Mid City Printers violated La. R.S. 23:1208; 2) Mr. Bell was not entitled to indemnity benefits from February 1, 2002 (the date of termination from Mid City Printers), through June 21, 2009 (the date indemnity benefits were reinstated); 3) Mr. Bell did not have a loss of earning capacity and was therefore not entitled to vocational rehabilitation services; 4) the surgery recommended by Dr. Dietze was not medically necessary for the injuries Mr. Bell sustained in his work-related accident; and 5) Mid City Printers failed to carry its burden that Mr. Bell violated La. R.S. 23:1208 by willfully making false statements for the purpose of obtaining benefits. Mr. Bell’s timely appeal followed.

DISCUSSION:

It is well settled that factual findings in workers’ compensation cases are subject to the manifest error-clearly wrong standard of appellate review. Dean v. Southmark Constr., 2003-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117. In applying the manifest error-clearly wrong standard, the appellate court must determine whether the factfinder’s conclusion was reasonable, not whether the trier of fact was right or wrong. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 6 (La.7/1/97), 696 So.2d 551, 556.

Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). 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; for only the factfinder can be aware of the | ^variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Id.

In this appeal, Mr. Bell contends that the WCJ erred in four respects: 1) refusing to admit Dr. Pribil’s depositions into evidence; 2) finding that Mr. Bell failed to carry his burden of proof for entitlement to back surgery; 3) denying Mr. Bell indemnity benefits from February 1, 2002, through June 21, 2009; and 4) failing to award Mr. Bell penalties and attorneys’ fees for Mid City Printers’ arbitrary and capricious handling of his claim.

Mid City Printers answered the appeal asserting that the WCJ erred in failing to find that Mr. Bell willfully made false statements for the purpose of obtaining benefits. We separately address each of these contentions.

Assignment of Error No. 1: The WCJ erred in failing to admit Dr. Pribil’s depositions into evidence.

At trial, Mr. Bell attempted to introduce Dr. Pribil’s depositions due to the fact that Dr. Pribil no longer resided in Louisiana and was “unavailable” for trial. Mid City Printers objected to the introduction of the depositions on the grounds that Mr. Bell faded to list the depositions on the pretrial order and failed to provide timely notice pursuant to La. C.C.P. art. 1450.

Mid City Printers further objected to the introduction of the depositions because Dr. Pribil was deposed in Mr. Bell’s tort action, in which Mid City Printers was not a party. Counsel for Mid City Printers explained that because he attended the depositions on behalf of the workers’ compensation insurer/intervenor, he was unable to participate fully on behalf of Mid City Printers.

1 ¡¡Finding that Mr. Bell failed to comply with the pretrial order and notice requirements mandated by La. C.C.P. art. 1450, and finding that Mid City Printers’ counsel did not have the opportunity to “meaningfully cross examine” Dr. Pribil on behalf of Mid City Printers, the WCJ denied introduction of the depositions. Mr. Bell submits that the WCJ’s evidentiary ruling is manifestly erroneous.

Provided that it is not contrary to law, a trial court’s rulings in pretrial matters are generally given great deference absent an abuse of discretion. Munster v. Bill Watson Ford, Inc., 2007-0294, p. 3 (La.App. 4 Cir. 10/24/07), 970 So.2d 36, 38-39. Additionally, trial courts enjoy great discretion with regard to modification or enforcement of pre-trial orders. Id. Moreover, “it is well established that the trial court has much discretion in determining whether to allow the use of deposition testimony at trial, and its decision will not be disturbed upon review in the absence of an abuse of that discretion.” Boutte v. ABC Ins. Companies, 2000-0649, p. 8 (La.App. 4 Cir. 2/6/02), 811 So.2d 30, 35.

Our review of the record reveals no abuse of discretion in denying the introduction of the depositions, inasmuch as Mr. Bell clearly failed to comply with the pretrial order. Furthermore, assuming arguendo that the WCJ erred in denying the introduction of Dr. Pribil’s depositions, it was harmless error as there has been no showing that Mr. Bell was prejudiced by the exclusion of this evidence. Dr. Pribil’s detailed medical reports were introduced into evidence. Additionally, Dr. Pribil’s findings and recommendations for surgery were considered and referenced in the medical records of Dr. Applebaum, Dr. Dietze, and Dr. Ricciardi, all of which were admitted into evidence. Thus, the exclusion of this evidence, when | ^viewed in context of the record as a whole, would have had no effect on the outcome of the trial.

Assignment of Error No. 2: The WCJ erred in finding that Mr. Bell failed to carry his burden of proof for entitlement to back surgerg.

With regard to medical treatment, La. R.S. 23:1203(A) provides that the employer shall provide all necessary treatment, including “medical and surgical treatment, and any nonmedical treatment recognized by the laws of this state as legal.” To recover medical expenses under La. R.S. 23:1203, the claimant must prove by a preponderance of the evidence that the expenses are reasonably necessary for treatment of a medical condition caused by the work injury. Schindler v. Orleans Regional Security, 2003-0522, p. 9 (La.App. 4 Cir. 12/3/03), 862 So.2d 1032, 1039. The assessment of the necessity of medical treatment is a factual determination that is made by the WCJ, and the factual findings are subject to the manifest error-clearly wrong standard discussed above. Evans v. Waste Management of New Orleans, 2004-2043, p. 4 (La.App. 4 Cir. 5/11/05), 904 So.2d 38, 40.

Mr. Bell asserts that the WCJ erred in failing to accord greater weight to the opinion of his treating physician, Dr. Dietze, than to Dr. Ricciardi, the court-appointed IME. Mr. Bell relies on the general jurisprudential rule that the testimony of a treating physician should be accorded greater weight than that of a physician who examines a patient only once or twice. Williams v. Wal-Mart Stores, Inc., 2000-0863, p. 6 (La.App. 4 Cir. 5/16/01), 787 So.2d 1134, 1137. However, it is also well established that the treating physician’s testimony is not irre-buttable, and the trier of fact is required to weigh the testimony of all medical witnesses. Id.

InLa. R.S. 23:1123, which provides for the appointment of an IME when there is a conflict in the medical evidence, provides that the report of the IME shall be prima facie evidence of the facts therein stated. The courts have interpreted La. R.S. 23:1123 to mean that an IME’s medical conclusions should be given significant weight because the IME is an objective witness. Frye v. Olan Mills, 44,192 p. 6 (La.App. 2 Cir. 4/8/09), 7 So.3d 201, 205; Marks v. 84 Lumber Co., 2006-0358, p. 7 (La.App. 3 Cir. 9/27/06), 939 So.2d 723, 730. Nevertheless, the opinion of the IME is not conclusive, and the trial judge must evaluate all of the evidence presented in making a decision as to the claimant’s condition. Richardson v. Lil’ River Harvesting, 2009-1090, p. 2 (La.App. 3 Cir. 3/10/10), 33 So.3d 418, 419; Cortez v. East Jefferson General Hospital, 2008-0653, p. 10 (La.App. 5 Cir. 1/13/09), 7 So.3d 707, 713. The weight given to the testimony of an IME can be lesser or greater depending on the qualifications or expertise of the physician, the type of examination he performs, his opportunity to observe the patient, his review of other physicians’ examinations and tests, and any other relevant factors. Green v. Louisiana Coca Cola Bottling Co., Ltd., 477 So.2d 904 (La.App. 4 Cir.1985).

In the present case, the WCJ relied heavily on Dr. Ricciardi’s opinion (clarified in his September 24, 2009 deposition) that surgery was an option for Mr. Bell, not a necessity. Based on the record evidence reviewed in its entirety, we cannot say that the WCJ erred in relying on Dr. Ricciar-di’s opinion to find that Mr. Bell failed to carry his burden of proof for entitlement to back surgery.

After being provided with the results of the random drug screenings conducted by Dr. Denney, which demonstrated that Mr. Bell was not taking his prescribed pain medications, Dr. Ricciardi was asked during his deposition whether his opinion regarding the surgery had changed, Dr. Ric-ciardi answered: |12“WeIl, of course, in light of the information I was not privy to at the time when I made the report.”

Also during his deposition, Dr. Ricciardi was shown a surveillance video of Mr. Bell dated May 21, 2007. The video shows Mr. Bell walking with a cane while entering and exiting an appointment, but later walking to and from his vehicle in a convenience store parking lot without his cane, showing no signs of limping. Dr. Ricciardi was also shown a surveillance video of Mr. Bell, dated June 30, 2007, wherein Mr. Bell is seen in a convenience store parking lot with his pickup truck, attached trailer, and riding lawnmower. Dr. Ricciardi stated that Mr. Bell did not appear to be in great distress in the video. Dr. Ricciardi further stated that the history Mr. Bell gave him, i.e., constant pain at a level of eight or ten out of ten, was inconsistent with what he exhibited in the video. .

Finally, Dr. Ricciardi explained in his deposition that there was only a fifty percent chance that Mr. Bell’s surgery would be beneficial. He further maintained that he would not recommend or perform the surgery on a person like Mr. Bell, who smokes.

Considering the above, we decline to disturb the factual finding made by the WCJ in giving greater weight to Dr. Ric-ciardi’s independent conclusion. The WCJ was not clearly wrong in denying the requested medical procedure. Accordingly, we find no merit in this assignment of error.

Assignment of Error No. 3: The WCJ eiTed in denying Mr. Bell indemnity benefits from February 1, 2002 (date of Mr. Bell’s termination) through June 21, 2009 (date indemnity benefits were reinstated).

In denying Mr. Bell’s claim for indemnity benefits, the WCJ determined:

Mr. Bell was aware of the policy and had been reprimanded by his supervisor, David Mack, for unexcused absences. On February 1, 2002, Employer fired Mr. Bell for “excessive absence.” Thus, Mr. hsBell was capable of employment and would have retained his same pre-accident wage and earning capacity had he not violated company policy and had been fired due to his own actions.
Further evidencing Mr. Bell’s ability to work was the job he held with Sycamore Hydraulics from approximately July 30, 2002, through November 18, 2002. Although there was a difference between Mr. Bell’s earnings while employed at Sycamore and Mid City Printers, Mr. Bell’s earning capacity was not different. Had Mr. Bell not violated company policy and been fired, he would have continued to earn the same wage. Supplemental earnings benefits are designed to compensate people whose earning capacities are impaired by work-related accidents, not people who make less due to their own actions and choices.

The purpose of supplemental earnings benefits (“SEB”) is to compensate the injured employee for the wage earning capacity he or she has lost as a result of an accident. Bethley v. City of New Orleans, 2006-0921, p. 4 (La.App. 4 Cir. 10/18/06), 945 So.2d 738, 741 (citing Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52, 55 (La.1993)). To qualify for SEB, a claimant is required to prove by a preponderance of evidence that a work-related injury resulted in the inability to earn ninety percent or more of his average pre-injury wage. Id. (citing La. R.S. 23:1221(3)(a)).

In Synigal v. Vanguard Car Rental, 2006-0761 (La.App. 5 Cir. 1/30/07), 951 So.2d 1197, the workers’ compensation claimant returned to work after her accident and was allowed to work in a sedentary capacity. Following a verbal altercation with her supervisor, the claimant was fired for violating company policy against insubordination and using profanities. The employer denied indemnity benefits after the claimant was terminated for cause. The WCJ found in favor of the claimant, awarding her benefits. The ap-pelláte court reversed, finding the claimant was not entitled to benefits because she was provided with a job that accommodated her work restrictions and was then terminated for cause, completely unrelated to claimant’s injury and light duty status. The court stated that it would |14be contrary to public policy to force an employer to pay workers’ compensation benefits to an employee who has been provided employment that meets his work restrictions and who is later fired for cause by blatantly violating his employer’s policies. Id., p. 5, 951 So.2d at 1200.

As the Third Circuit held in Grillette v. Alliance Compressors, 2005-0982, p. 5 (La.App. 3 Cir. 2/1/06), 923 So.2d 774, 778, “an employer cannot avoid paying benefits by creating a job that accommodates any work restrictions and then firing the injured employee without cause and that an injured employee cannot refuse to accept suitable employment or blatantly violate company policy without the possibility of recourse by the employer.” Citing Palmer v. Alliance Compressors, 2005-0478 (La.App. 3 Cir. 11/2/05), 917 So.2d 510.

After our thorough review of the record in the present case, we cannot conclude that the WCJ erred in finding that Mr. Bell was not entitled to indemnity benefits from February 1, 2002, until June 21, 2009. It is undisputed that upon his return to work two weeks after the accident, Mid City Printers accommodated Mr. Bell by allowing him to work within the lifting restriction imposed by Dr. Thompson and allowing him to attend doctors’ appointments during the work day. The record also confirms that at the time of his termination for cause, unrelated to his injury, Mr. Bell was earning one hundred percent of his pre-injury wage. Under the circumstances presented here, Mr. Bell did not carry his burden of proof that his injury resulted in his inability to earn ninety percent or more of the wages he earned at the time of his injury. This assignment of error is without merit.

Assignment of Error No. 4: The WCJ erred in failing to award Mr. Bell penalties and attornegs’ fees for Mid Citg Printers’ arbitrary and capricious handling of his claim.

| ifiThe decision to impose penalties and attorneys’ fees is essentially a factual issue subject to the manifest error-elearly wrong standard of review. Authement v. Shappert Engineering, 2002-1631, p. 12 (La.2/25/03), 840 So.2d 1181, 1188-89. Awards of penalties and attorneys’ fees in compensation cases are essentially penal, and are intended to deter indifference and undesirable conduct by employers and their insurers toward injured workers. Trahan v. Coca Cola Bottling Co., 2004-0100, p. 17 (La.3/2/05), 894 So.2d 1096, 1108. Although the benefits in workers’ compensation cases are to be liberally construed, penal statutes are to be strictly construed. Smith v. Quarles Drilling Co., 2004-0179, p. 7 (La.10/29/04), 885 So.2d 562, 566. Penalties should not be imposed in doubtful cases, where a bona fide dispute exists as to the claimant’s entitlement to benefits. J.E. Merit Constructors Inc. v. Hickman, 2000-0943, p. 5 (La.1/17/01), 776 So.2d 435, 438.

Mr. Bell asserts that Mid City Printers should have been assessed penalties and attorneys’ fees for failing to institute indemnity benefits after he was fired and for failing to authorize medical benefits in connection with his injuries. In instances where the employer fails to commence payment of benefits, penalties and attorneys’ fees are authorized under La. R.S. 23:1201(F)(2), unless the claim is reasonably controverted, or resulted from conduct over which the employer or insurer had no control. See McCarroll v. Air port Shuttle Inc., 2000-1123 (La.11/28/00), 773 So.2d 694.

In Brown v. Tex-LA Cartage Inc., 98-1063, p. 9 (La.12/1/98), 721 So.2d 885, 890, the Louisiana Supreme Court explained:

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.

Mr. Bell first argues that the WCJ erred by not awarding him penalties and attorneys’ fees for Mid City Printers’ denial or delay in approving the MRI requested by Dr. Applebaum. Mid City Printers counters, arguing that this issue was not raised at trial and, therefore, cannot be raised on appeal. We agree. It is evident from the record that approval for the MRI requested by Dr. Applebaum was not addressed at trial. Moreover, Mr. Bell testified that he chose not to have the MRI that was recommended by Dr. Applebaum.

Mr. Bell next argues that Mid City Printers should have been accessed penalties and attorneys’ fees for its failure to institute indemnity benefits upon Mr. Bell’s termination from employment and for its failure to approve his back surgery. In both instances, the WCJ determined that Mr. Bell failed to carry his burden to show that he was entitled to such benefits.

Considering the opinion of the court-appointed IME, that Mr. Bell’s surgery was not “medically necessary”, we are constrained to find that Mid City Printers reasonably controverted Mr. Bell’s claim. Moreover, as established by the jurisprudence, the finding of the WJC in favor of the employer, as in the present case, is “virtually conclusive that its actions were reasonable and were not arbitrary and capricious” Royals v. Town of Richwood, 42,585, p. 12 (La.App. 2 Cir. 10/24/07), 968 So.2d 833, 840, citing J.E. Merit Constructors, supra. Accordingly, we find no merit in Mr. Bell’s final assignment of error.

| |7Finally, Mid City Printers answered this appeal, asserting that the WCJ erred in denying its claim for forfeiture of benefits pursuant to La. R.S. 23:1208. Mid City Printers alleges that Mr. Bell willfully made misrepresentations to Dr. Denney concerning his level of pain and his intake of Soma so that Dr. Denney would continue writing prescriptions for Soma.

La. R.S. 23:1208 makes it unlawful for any claimant to willfully make false statements for the purpose of obtaining workers’ compensation benefits. The only requirements for disqualification under Section 1208 are: 1) a false statement or representation, 2) which is willfully made, and 3) which is made for the purpose of obtaining workers’ compensation benefits. Resweber v. Haroil Const. Co., 94-2708, p. 94-3138, p. 11 (La.9/5/95), 660 So.2d 7, 14.

The issue of whether an employee has forfeited his right to workers’ compensation benefits is a factual question that should not be disturbed on appeal absent manifest error. Stanich v. Canal Entertainment, 2009-0707, pp. 2-3 (La. App. 4 Cir. 11/12/09), 26 So.3d 269, 272. Statutory forfeiture is a harsh remedy and must be strictly construed. Herrera v. Cajun Co., 2006-1627, p. 7 (La.App. 4 Cir. 6/6/07), 960 So.2d 1161, 1166. Inadvertent or inconsequential statements will not give rise to a finding of willful misstatement, triggering statutory penalties. Hernandez v. ESKCO, Inc., 2000-0174, p. 3 (La.App. 4 Cir. 11/15/00), 773 So.2d 865, 867.

In the present case, the WCJ determined that, while “Mr. Bell’s credibility was weak”, Mid City Printers failed to meet its burden to show that Mr. Bell willfully made false statements for the purpose of obtaining workers’ compensation benefits. We agree.

|1RIt is undisputed that Mr. Bell’s statements to Dr. Denney (that he had timely taken his prescribed medications) conflicted with the negative results of the drug screenings. However, while Mid City Printers provided speculation as to why Mr. Bell made erroneous statements, nothing was presented to show that Mr. Bell made any intentional or willful misrepresentation for the purpose of obtaining compensation benefits. Therefore, we find no manifest error in the WCJ’s conclusion that Mid City Printers failed to carry its burden on this issue.

CONCLUSION:

For the foregoing reasons, we affirm the judgment of the WCJ.

AFFIRMED.

      . La. C.C.P. art. 1450(A)(5) provides in pertinent part that "any party may use the deposition of an expert witness for any purpose upon notice to all counsel of record, any one of whom shall have the right within ten days to object to the deposition, thereby requiring the live testimony of an expert.”


source: Caselaw Access Project

author: JOAN BERNARD ARMSTRONG, Chief Judge. BELSOME, J.,

license: Public Domain

text:
    4140 CANAL STREET, L.L.C. v. CITY OF NEW ORLEANS and the New Orleans Historic Landmarks Commission.
    No. 2010-CA-1038.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 28, 2010.

      Albert J. Nicaud, Nicaud & Sunseri, LLC, Metairie, LA, for Plaintiff/Appellant, 4140 Canal Street, L.L.C.
    Bobbie F. Mason, Assistant City Attorney, Dawn E. Segura, Chief Deputy City Attorney, Deborah Wilson, Deputy City Attorney, Darryl M. Phillips, Chief Of Litigation, Thomas A. Robichaux, Deputy City Attorney, Nannette V. Jolivette Brown, City Attorney, New Orleans, LA, for Defendant/Appellee, City of New Orleans.
    (Court Composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DAVID S. GORBATY, Judge ROLAND L. BELSOME).
   JOAN BERNARD ARMSTRONG, Chief Judge.

_JjThe plaintiff-appellant, 4140 Canal Street, L.L.C., appeals the May 12, 2010 judgment in favor of the defendants-appel-lees, The New Orleans Historic District Landmarks Commission (HDLC) and the City of New Orleans (City), denying its Petition for Injunction seeking to block the designation of its building at 4140 Canal Street as an historic landmark.

On September 11, 2009, the New Orleans Historic District Landmarks Commission moved to nominate the property located at 4140 Canal Street, New Orleans, LA, for study as a local historic landmark. 4140 Canal Street, L.L.C. is the owner of 4140 Canal Street. Barry Katz, as member-manager of 4140 Canal Street L.L.C., was notified of the HDLC’s decision via letter dated September 14, 2009. 4140 Canal Street, L.L.C. appealed the decision of the HDLC to the New Orleans City Council on September 17, 2009. In a letter to Councilmember Shelley Midura dated October 19, 2009, Barry Katz opposed the nomination for the following reasons: (1) Over the course of 4140 Canal Street, L.L.C.’s ownership of the property, the architectural integrity of the building had been |2protected; (2) There is no intention to demolish the building; and (8) There is no intention to change the exterior of the building.

On October 20, 2009, the New Orleans City Council denied Mr. Katz’s appeal.

On February 11, 2010, the HDLC voted to designate 4140 Canal Street as a City landmark. The New Orleans City Council voted on March 11, 2010 to uphold the HDLC “designation of 4140 Canal Street for Designation as a Landmark.” 4140 Canal Street, L.L.C. appealed by filing a Petition for Injunction against the City of New Orleans and the HDLC in the district court on April 8, 2010. The case was submitted on memoranda by agreement of the parties. On May 12, 2010 the district court rendered judgment denying the plaintiffs request for an injunction. It is from this district court denial of the Petition for Injunction that the plaintiff brings this appeal.

The trial court’s denial of the plaintiffs injunction request as set forth in the written reasons for judgment, was based in part on the fact the plaintiff made arguments that in the absence of injunctive relief his property would suffer a loss of value. The court concluded that such a loss, “if true, is compensable in money, thus, no irreparable harm.” We agree.

The plaintiff contends that under La. R.S. 25:742, the HDLC has no regulatory authority outside of the boundaries of an historic district. As it is uncontested that 4140 Canal Street is not in an “historic preservation district” as | .¡defined by La. R.S. 25:742, the plaintiff contends that the HDLC had no authority to designate 4140 Canal Street as historic.

However, La. R.S. 25:744 provides the authority to designate landmarks outside the boundaries of an historic preservation district:

“An historic preservation district commission may be empowered by the local governing body to name or designate any site, location, structure or monument within the area served by the governmental unit as worthy of preservation whether within or outside the confines of an historic district and to exercise all other powers and functions of a landmarks commission, except that no historic district commission shall be empowered to act in a landmark capacity where its jurisdiction overlaps the authority of an existing landmarks commission pursuant to this Act.”

Thus, La. R.S. 25:744 empowers the “local governing body” (in this case the City of New Orleans) to authorize an historic district commission, such as the HDLC in this case, to make historic landmark designations “outside the confínes of an historic district.” Consistent with this authority, as part of its historic preservation ordinance, the City of New Orleans enacted Section 84-50 of the City Code of the City of New Orleans authorizing the HDLC to designate historic landmarks:

1. Name or designate a building together with its accessory buildings and its lot of record or any part thereof, or to name or designate vacant sites not in excess of five acres as historic and worthy of preservation as a landmark within the jurisdiction of the commission. Buildings and sites not encompassed by this subsection may be designated as a landmark by the commission, but such determination shall be ratified by a majority vote of the city council.

| ¿Therefore, we find that the HDLC has the authority to make historic designations outside the boundaries of historic within the City of New Orleans.

The plaintiff makes the additional argument that it is significant that La. R.S. 25:742 refers to “buildings” and “structures” separately, but La. R.S. 25:744 which is the source of the HDLC’s authority to act outside of an historic district, refers only to “structures” and makes no mention of “buildings.” The plaintiff argues that it was the intent of the legislature to limit the jurisdiction of historic district commissions outside of historic districts to “structures” exclusive of “buildings.” The plaintiff argues that as 4140 Canal Street is a “building” outside of an historic district and not a “structure”, the HDLC jurisdiction to designate historic landmarks does not extend to it. By way of example, the plaintiff suggests that the term “structure” in La. R.S. 25:742 and 25:744 refers to things such as art sculptures, burial tombs, statues and bridges, but does not include buildings such as 4140 Canal Street. We agree with the City’s argument that typical dictionary definitions of the term “structure” make reference to “buildings” and vice versa. Words in a statute must be given their general and prevailing meaning. La. C.C.P. art. 10. We find that given their general and prevailing meanings, while not all structures are buildings, all buildings are structures, and in that context the terms may be used interchangeably.

Thus, we find that when La. R.S. 25:744 refers to “structures” it clearly and unambiguously includes “buildings” such as 4140 Canal Street. Therefore, we are not persuaded by the plaintiffs argument on this issue.

The plaintiff also argues that the historic designation is tantamount to unlawful discriminatory zoning because it was based on a finding that 4140 Canal Street is an example of Curtis and Davis Architecture, a basis that was rejected | ¡jWhen the Curtis and Davis designed Riv-ergate, St. Francis Cabrini Church and the old Supreme Court Building were demolished. The plaintiff offered as an exhibit a Times Picayune article quoting former councilwoman, Cynthia Willard-Lewis, as saying that it was ridiculous to describe as historic the Curtis and Davis designed St. Francis Cabrini Church that was not as old as she was. The plaintiff notes that 4140 Canal Street building having been built in 1963, is less than 50 years old. Therefore, the plaintiff contends that to designate 4140 Canal Street as historic is arbitrary, unreasonable and discriminatory in the context of the treatment received by other Curtis and Davis buildings.

However, evidence in the record shows that 4140 Canal Street, originally constructed as the Automotive Life Insurance building, designed by Curtis and Davis, is particularly interesting due to its curvilinear aesthetic, a design aspect they used in many of their other projects. The most distinctive feature of the building is the two story vaulted portico spanning the facade and side elevations. The billowing arched vaults make the building appear suspended in mid-air. Slender cross shaped columns made of precast concrete with interior steel structures support the portico roof. Each vault is twelve square feet, which is the basis of the buildings plan and is repeated throughout the interi- or. Five identical round arched windows, each two stories tall, create a cohesive facade.

Curtis and Davis are widely recognized and admired as architects, being responsible for some of the most iconic modern buildings in the City of New Orleans and surrounding area. Over the thirty or so years that the architects worked together, they were responsible for producing hundreds of buildings worldwide.

Curtis and Davis were given a large budget and creative freedom to design 4140 Canal Street. With unlimited freedom, the Automotive Live Insurance 1 (¡building was designed unlike any previously seen in the City. For example, the building was honored with the Gulf States Region of the American Institute of Architects Award, Honor Award, Louisiana Architect Association, Honor Award, and Award of Merits (Interior).

Therefore, we find that the designation of 4140 Canal Street as an historic landmark is amply supported by evidence in the record, and is in no way arbitrary, unreasonable or an abuse of discretion.

The plaintiff also asserts that the designation of 4140 Canal Street as a landmark is discriminatory because the City Council voted to approve the HDLC’s designation of 4140 Canal Street, but supported the demolition of St. Francis Cabrini Church, another Curtis and Davis structure, in favor of the Archdioceses of New Orleans’ efforts to build a new Holy Cross High School.

In light of the uniqueness of every historic building, the nomination, architectural evaluation/study, and landmark designation of a building is decided on a case-by-case basis.

For example, the circumstances surrounding St. Francis Cabrini Church and the subject property, 4140 Canal Street, are distinguishable. Consistent with its actions regarding 4140 Canal Street, the HDLC supported the nomination of St. Francis Cabrini for designation as a landmark. However, the most important factual difference is that the demolition permit for St. Francis Cabrini Church was applied for and approved by the Department of Safety and Permits prior to the HDLC’s landmark nomination. A demolition permit issued prior to an HDLC nomination supersedes the HDLC nomination and/or landmark designation of a property as it did with St. Francis Cabrini Church. In the instant case no | demolition permit was issued prior to the landmark designation of 4140 Canal Street.

Therefore, in view of the uniqueness of each historic landmark and the reasonableness of the factors considered in making the historic designation in this case, we find no unlawful discrimination against the plaintiff in the historic landmark decision making process.

Section 84-107 of the Code of City of New Orleans (City Code) requires that the commission cause notice of the proposed designation to be published at least once, at least 30 days prior to the public hearing in the official journal of the Parish and notice of the hearing is to be posted in a place where the commission meets. In addition, such notice may be also published in a newspaper having general circulation in the Parish. The defendants acknowledge that notice was not given in conformity with these provision of Section 84-107 as set forth below:

Section X. Landmarks Designation Procedure.

A. The following procedure shall be adhered to in designating any building, structure, site, monument, or other landmark that is worthy of preservation: (1) the Commission shall consider for landmark designation any property proposed by motion of any Commission member and seconded by two additional Commission members, or by the owner of proposed property. (2) Notice of a proposed designation shall be sent by registered mail to the owner of property proposed for landmark designation, describing the property proposed and announcing a public hearing by the Commission to consider said designation. (3) The Commission shall also send notice of a proposed designation to all city agencies having previously requested notification of such proceedings; to the landmark area advisory board in whose area the proposed landmark is located, if any exists; and to other parties customarily informed by the Commission of such proceedings. (4) The Commission shall also cause notice of the proposed designation to be published at least once at least thirty (30) days prior to the public hearing in the official journal of Orleans Parish and shall post notice of 18the hearing in the place where the Commission meets, and in addition, such notice may be also published in a newspaper having general circulation in Orleans Parish. (5) The Commission may solicit expert testimony regarding the historic and architectural importance of the building, structure, site, monument, area, or other landmark under consideration for designation. (6) The Commission may present testimony or documentary evidence of its own to establish a record regarding the historic and architectural importance of the proposed landmark property. (7) The Commission shall afford to the owner of said property reasonable opportunity to present testimony or documentary evidence regarding the historic and architectural importance of the proposed landmark property. (8) The owner of property proposed for landmark designation shall be afforded the right of representation by counsel and reasonable opportunity to cross examine witnesses presented by the Commission. (9) Any interested party may present testimony or documentary evidence regarding the proposed landmark designation at the public hearing and may submit to the Commission documentary evidence within three (3) days after the hearing. (10) Within not more than forty-five (45) days after a public hearing, the Commission shall render a final decision regarding the proposed designation and shall give written notice of its decision to the owner of the property proposed for designation setting forth the reasons thereof. (11) The Commission shall maintain a record of all testimony and documentary evidence submitted to the Commission for consideration of a proposed landmark designation. (12) In accord with Section IX, A(2) of this Ordinance, the City Council may ratify the determination of the Commission prior to the classification of a property, as defined in Section IX, A(2), as a landmark at a regular or special meeting of the City Council. (13) Within thirty (30) days of the date on which the Commission designates or the City Council ratifies, as the case may be, any building, structure, site or monument as a landmark worthy of preservation, the Commission shall cause to be filed in the conveyance office of Orleans Parish a certificate of notification that such property is designated a landmark, and said certificate of notification shall be maintained on the public records until such time as the landmark designation may be withdrawn by the Commission or the City Council.

19Iterns numbered “(2)” and “(4)” bear on the issues in the instant case. The plaintiff complains that the HDLC did not adhere to the literal requirements of item “(4)” requiring 30 days public notice. Mr. Katz does not dispute that he received actual notice consistent with item “(2)”.

The record contains a copy of a letter dated April 1, 2009, from the HDLC addressed to the plaintiff, informing the plaintiff that the property located at 4140 Canal Street would “be considered for nomination as a local historic landmark at [the HDLC’s] meeting of April 9, 2009.”

The record also contains a copy of a letter from the HDLC addressed to the plaintiff, dated April 14, 2009, informing the plaintiff that at the meeting of April 9, 2009, the HDLC had voted to defer action until the meeting of June 12, 2009. There is a United States Post Office receipt showing that the letter was delivered to the plaintiff.

The record contains a copy of a letter from Mr. Katz on behalf of the plaintiff addressed to the HDLC, dated June 11, 2009, asking for a continuance.

This is followed by a letter from the HDLC to the plaintiff dated June 16, 2009, informing the plaintiff that, pursuant to its request, a continuance was granted until September 11, 2009. There is a United States Post Office receipt showing receipt by the plaintiff.

This is followed in the record by a letter from the plaintiff dated September 17, 2009, addressed to the Clerk of the New Orleans City Council, appealing the HDLC decision to nominate 4140 Canal Street for historic landmark designation.

This is followed by a letter from the plaintiff dated October 19, 2009 to the Honorable Shelley Midura, Councilmem-ber District “A” opposing the nomination.

| ipThe City Council denied the appeal and the HDLC proceeded with consideration of the nomination. The record contains a letter from the HDLC addressed to the plaintiff:' dated February 1, 2010, informing the plaintiff that the decision to designate 4140 Canal Street as an historic landmark would be voted on on February 11, 2010. Accordingly, the HDLC proceeded to designate the property as an historic landmark, which was followed by the plaintiffs appeal to the City Council, which was denied.

None of the foregoing sequence of events is in dispute. It is apparent that throughout the process, the plaintiff received actual notice directed to it. In fact, the consideration of the issue was continued at least twice pursuant to the request of the plaintiff, resulting in cumulative delays at the behest of the plaintiff of at least five months. Therefore, the plaintiff has no basis to complain that it received no notice, or that there was a rush to judgment and the plaintiff makes no such complaints. In other words, the plaintiff makes no argument in this appeal that it was in any way prejudiced by lack of notice or by notice that was too brief.

We find that where the property owner receives actual notice directed to it consistent with item “(2)” of Section 84-107 of the Municipal Code of the City of New Orleans, then notice pursuant to item “(4)” becomes redundant and unnecessary. This view is consistent with the due process analysis set forth in Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), where public notice was deemed inadequate in the absence of a good faith attempt to deliver personal notice. In the absence of any contrary expression by the plaintiff denying that it received actual notice in a timely fashion, we conclude that the only persons who might have standing to complain about the failure to publish public notice as required by the Ordinance would be members of the public with an | ninterest in the matter. As there has been no such complaint filed with this Court by a member of the public, and Mr. Katz does not contend that he was in any way prejudiced by the failure of the HDLC to adhere to the 30 day public notice requirement, we find that the failure of the defendants to adhere to the 30 day public notice requirement is immaterial and does not vitiate the designation of 4140 Canal Street as an historic landmark.

The plaintiffs final argument is that the historic designation will result in a diminution of the value of the property for which he should be compensated with monetary damages, in effect a constitutional “takings” argument. Consequently, he contends that should his request for an injunction be denied, he should be allowed to amend his petition on remand in order to state a cause of action in damages pursuant to La. R.S. 25:746 and § 84-134 (Appeals) of the City Code in order to recoup this loss in value. We find nothing in the record indicating that the plaintiff addressed this request to amend its petition to the trial court. Moreover, there is no request in the record in the district court of an alternative claim for damages by the plaintiff. Therefore, we decline to consider a remand or an award of damages for the first time on appeal to this Court.

A denial or dissolution of a preliminary injunction should not be overturned on appeal absent a clear abuse of the trial court’s discretion. FQCPRQ, et al. v. Brandon Investments, L.L.C., 05-0793, p. 3 (La.App. 4 Cir. 3/29/06), 930 So.2d 107, 109; Wallace C. Drennan, Inc. v. Sewerage & Water Board of New Orleans, 00-1146, p. 3 (La.App. 4 Cir. 10/3/01), 798 So.2d 1167, 1171. Based on the above 112analysis, we find no abuse of the trial court’s discretion in denying the request for a preliminary injunction.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

BELSOME, J., concurs with reasons.

BELSOME, J.,

concurring with reasons.

|,I respectfully concur in the result reached by the majority. However, I write separately to address Section 84-107 of the Municipal Code of the City of New Orleans with respect to the Landmarks Designation Procedure. While Appellant conceded that he received actual notice of the proposed designation, Section X(A)(4) provides that in addition to notice by registered mail to the property owner, “[t]he Commission shall also cause notice of the proposed designation to be published at least once at least thirty (30) days prior to the public hearing in the official journal of Orleans Parish and shall post notice of the hearing in the place where the Commission meets, and in addition, such notice may be also published in a newspaper having general circulation in Orleans Parish.” (Emphasis added).

Thus, pursuant to the above language, I cannot agree that Section X(A)(4) is redundant and/or unnecessary. However, I concur with the majority’s finding that because Appellant received actual notice and neither alleged nor proved that he was in any way prejudiced by the alleged failure to publish the proposed designation in the official journal thirty days prior to the hearing, the trial court did not abuse its discretion in this case.

      . We note that while Mr. Katz is entitled to praise for his preservation of the structure up to this point and his expression of intention not to demolish the building or alter its exteri- or, there is nothing to prevent him from changing his mind in the future or to prevent a future owner of the building to decide to demolish or alter the building in the absence of the historic designation. Therefore, Mr. Katz's representations concerning present intentions have no bearing on the merits of the decision to designate the property as a landmark.

      . We note that the plaintiff asked only for injunctive relief in the trial court and made no alternative claim in the trial court for monetary damages.

      . Indeed, it is hard to imagine why a member of the public would have any objection to the historic designation. We assume that the requirement of notice to the public was intended to permit members of the public to express their support for such designations.

      . Appellees assert that although no documentation of a 30-day notice in the official journal of the February 11, 2010 hearing exists in the record, notice of the landmark hearing was delivered to Appellant on February 4, 2010 pursuant to La. R.S. 42:7(b)(l), and that notice of the agenda and meeting was posted on the HDLC's website, as evidenced by a website change form included in the record as an exhibit and dated January 28, 2010.


author: DECUIR, Judge.

text:
    Norma Jean HARDY and Jonathan David Hardy v. Gene AUGUSTINE, et al.
    No. 10-384.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 2, 2011.

      Elizabeth Sheridan Hardy, Thomas & Hardy, Lake Charles, LA, for Plaintiffs/Appellees, Norma Jean Hardy, Jonathan David Hardy.
    Frank M. Walker, Plauché, Smith & Nieset, Lake Charles, LA, for Defendant/Appellant, State Farm Mutual Automobile Insurance Company.
    Michael H. Schwartzberg, Vamvoras, Schwartzberg & Hinch, Lake Charles, LA, for Defendant/Appellee, Gene M. Augustine.
    James Anthony Blanco, Mitchell & Blan-co, Lake Charles, LA, for Defendants/Ap-pellees, State Farm Mutual Automobile Insurance Company, Gene M. Augustine.
    Russell Joseph States, Jr., P. Jody Lav-ergne, States & Lavergne, LLC, Lake Charles, LA, for Plaintiffs/Appellees, Norma Jean Hardy, Jonathan David Hardy.
    Court composed of OSWALD A. DECUIR, MARC T. AMY, and J. DAVID PAINTER, Judges.
   DECUIR, Judge.

B State Farm appeals a judgment of the trial court finding the anti-stacking statute, La.R.S. 22:1295(l)(c), did not bar plaintiffs from recovering under both uninsured/underinsured motorist (UM) policies issued to them by State Farm.

FACTS

On July 12, 2008, Gene Augustine swerved his pickup truck into an oncoming lane of traffic. He collided with a motorcycle operated by seventeen-year-old Elliot Hardy. Elliot was killed instantly. Elliot’s parents, David and Norma Jean Hardy, brought separate claims for damages suffered as a result of the wrongful death of Elliot against Augustine and his liability insurer, State Farm Mutual Automobile Insurance Company (State Farm). Anticipating that the judgment would exceed Augustine’s primary policy limits of $50,000.00, the Hardys also sought to recover from State Farm as their UM carrier.

State Farm provided UM coverage to the Hardys under two separate policies. The Hardys are both “insureds” under both policies and the policies provide the same UM limits of $100,000.00 per person and $800,000.00 per occurrence. State Farm filed a motion for summary judgment seeking to prevent the Hardys from recovering under both policies should the damages exceed Augustine’s liability limits and the first of State Farm’s UM policies. The Hardys and Augustine filed cross motions for summary judgment on the same issue. On December 16, 2009, the trial court entered judgment denying State Farm’s motion for summary judgment and granting the Hardys’ and Augustine’s motions and the matter proceeded to trial. Ultimately, the jury awarded each parent $200,000.00 for “loss of love, affection, and companionship” and $100,000.00 for “grief and anguish” in addition to $12,630.04 for funeral expenses, $9,316.48 for past medical care, and $8,000.00 for future 12medical care. State Farm and Augustine have tendered all but the $100,000.00 policy limits of the second UM policy. The trial court entered judgment on February 1, 2010. State Farm lodged this appeal from the court’s December 16, 2009 judgment alleging the trial court erred in its ruling on the cross motions for summary judgment filed by the parties. Augustine lodged a separate appeal which was consolidated with the present appeal for argument. Hardy v. Augustine, 10-946 (La.App. 3 Cir. 2/2/11), 55 So.3d 1019.

DISCUSSION

State Farm alleges the trial court erred in denying its motion for summary judgment and granting the cross motions for summary judgment filed by the Hardys and Augustine. Specifically, State Farm contends the trial court erred in finding that the anti-stacking statute, La.R.S. 22:1295(l)(c), did not bar plaintiffs from recovering under both uninsured/underin-sured motorist (UM) policies issued to them by State Farm. We agree.

An appellate court reviews summary judgments de novo, applying the same criteria as the district court in determining whether summary judgment is appropriate. Schroeder v. Bd. of Sup’rs of La. State Univ., 591 So.2d 342 (La.1991). A motion for summary judgment is properly granted when the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to material facts, and the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B).

The Louisiana anti-stacking statute, La. R.S. 22:1295(l)(c), applies to insureds who have elected to have uninsured motorist coverage and provides in pertinent part:

.... such limits of liability shall not be increased because of multiple motor vehicles covered under said policy of insurance, and such limits |sof uninsured motorist coverage shall not be increased when the insured has insurance available to him under more than one uninsured motorist coverage provision or policy;....

The statute is the subject of a considerable amount of jurisprudence. The focus of the inquiry in this ease is the Louisiana Supreme Court’s holding in Boullt v. State Farm Mut. Auto. Ins. Co., 99-0942 (La.10/19/99), 752 So.2d 739, and the fourth circuit’s holding in Campbell v. State Farm Ins. Co., 00-2218 (La.App. 4 Cir. 11/14/01), 804 So.2d 112. In Boullt, the court explained:

Stacking of UM coverages occurs when the amount available under one policy is inadequate to satisfy the damages alleged or awarded the insured and the same insured seeks to combine or stack one coverage on top of another for the same loss covered under multiple policies or under multiple coverages contained in a single policy.

Boullt, 752 So.2d at 742. The court ultimately found that divorced parents who had separate UM policies on which the former spouse was not a named insured could each recover under their own policy. Id. The court noted the unique factual circumstance created by a situation where the anti-stacking situation did not apply. Id. Moreover, in explaining its ruling, the court emphasized the parents’ separate legal status and separate contractual relationship with their insurer. Id. In Campbell, the court distinguished Boullt noting that the Campbells were married and were both “insureds” under both policies and, therefore, were barred by the anti-stacking provision of La.R.S. 22:1295(l)(c).

The Hardys argue that it is unreasonable for divorced parents to be entitled to stack policies while married parents are not. While appealing at first glance, this argument fails upon closer consideration of Boullt. Boullt does not stand for the proposition that divorced parents are entitled to stack policies. Boullt stands for the proposition that the anti-stacking statute is not applicable when separate legal persons |4have entered into separate contracts with an insurer to provide coverage that does not include the other contracting person as an “insured.”

In this case, the Hardys are married parents who are both “insureds” under both policies. Accordingly, they do not meet the conditions outlined in Boullt and are barred from recovering under their second policy by La.R.S. 22:1295(l)(c). The trial court erred as a matter of law in granting the motions for summary judgment in favor of Augustine and the Hardys and in denying State Farm’s motion.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed. Judgment is hereby entered granting summary judgment in favor of State Farm and limiting the Hardys’ recovery to one of the State Farm UM policies. The motions for summary judgment filed by the Hardys and Augustine are denied. All costs of these proceedings are taxed to appellee, Gene Augustine.

REVERSED AND RENDERED.


author: AMY, Judge.

text:
    Bertha GRUVER v. The KROGER COMPANY, et al.
    No. 10-689.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 2, 2011.

      James E. Hopkins, Sulphur, LA, for Plaintiff/Appellant, Bertha Gruver.
    Christopher P. Ieyoub, Plauche, Smith & Nieset, LLC, Lake Charles, LA, for Defendants/Appellees, The Kroger Company, John Duke.
    Janice M. Reeves, Maride and Associates, Baton Rouge, LA, for Defendant/Ap-pellee, Assembled Products Corporation.
    Court composed of OSWALD A. DECUIR, MARC T. AMY, and J. DAVID PAINTER, Judges.
   AMY, Judge.

hThe plaintiff appeals the trial court’s granting of the defendants’ motions for summary judgment and the dismissal of the plaintiffs claims for injuries she sustained when her electric grocery cart allegedly malfunctioned while grocery shopping. For the following reasons, we affirm.

Factual and Procedural Background

On March 12, 2001, the plaintiff, Bertha Gruver, visited the Kroger Grocery Store in Lake Charles, Louisiana, to shop for groceries. The plaintiff, who was seventy-three years old at the time, used one of the motorized carts, the Mart Cart, provided by Kroger. She alleges that, while she was shopping, she could not reach a can of food while sitting in the cart. In an attempt to reach the can, the plaintiff asserts that she dismounted the Mart Cart and placed her left foot on the ground, and while she had one foot on the cart and another on the ground, the cart rolled forward causing her to fall

The plaintiff filed suit on May 21, 2001, against The Kroger Company (Kroger), and John Duke, Kroger’s manager on duty at the time, alleging that they were liable for her damages under various theories of liability. The plaintiff later amended the petition and alleged that Assembled Products Corporation (APC), the manufacturer of the Mart Cart, and Mart Cart, Inc. were hable under the Louisiana Products Liability Act (LPLA), La.R.S. 9:2800.51, et seq.

Kroger and Duke filed a motion for summary judgment seeking dismissal of the plaintiff’s claims and asserting that the plaintiffs “accident and alleged injuries |;>were caused solely by her own acts of negligence, and not in any way by any fault or negligence of Kroger or John Duke.” APC also sought summary judgment, asserting that the plaintiff would be unable to meet her burden of proof at trial under the LPLA.

Ultimately, the trial court granted the defendants’ motions for summary judgment. The plaintiff appeals.

Discussion

Standard of Review

A motion for summary judgment is reviewed on appeal under the de novo standard of review. Hogg v. Chevron USA, Inc., 09-2632 (La.7/6/10), 45 So.3d 991. The reviewing court uses the same criteria as the trial court to determine whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. See La. Code Civ.P. art. 966; Hogg, 45 So.3d 991. Summary judgment shall be granted “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 mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B). “[A] ‘genuine issue’ is a ‘triable issue,’ or one as to which reasonable persons could disagree. A ‘material fact’ is a fact, the existence or non-existence of which may be essential to a cause of action under the applicable theory of recovery.” Hogg, 45 So.3d at 997 (citations omitted), citing Champagne v. Ward, 03-3211 (La.1/19/05), 893 So.2d 773. In proving entitlement to summary judgment:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one |sor more elements essential to the adverse party’s claim, action, or defense. 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.

La.Code Civ.P. art. 966(C)(2).

Motion for Summary Judgment — Kroger and Duke

The plaintiff contends that the trial court erred in granting Kroger’s and Duke’s motion for summary judgment. In her petition, the plaintiff asserted causes of action against Kroger and Duke under La.Civ.Code arts. 2317 and 2322 as well as under La.R.S. 9:2800.6. The plaintiff also alleged that these defendants could be liable under theories of failure to supervise or provide instruction with regard to the cart. In their motion, Kroger and Duke addressed each of these theories of liability and contended that the plaintiff would not be able to prove the necessary elements of each action.

A plaintiffs burden in a claim against merchants for a fall on the premises is dictated by La.R.S. 9:2800.6, which provides:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of any injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk was reasonably foreseeable.
|4(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, pri- or to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.
C. Definitions:
(1) “Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.
(2) “Merchant” means one whose business is to sell goods, foods, ware, or merchandise at a fixed place of business. For purposes of this Section, a merchant includes an innkeeper with respect to those areas or aspects of the premises which are similar to those of a merchant, including but not limited to shops, restaurants, and lobby areas of or within the hotel, motel, or inn.
D. Nothing herein shall affect any liability which a merchant may have under Civil Code Arts. 660, 667, 669, 2317, 2322, or 2695.

This particular case is specifically controlled by Paragraph B insofar as the plaintiffs claim stems from a fall. See Smith v. Toys “R” Us, Inc., et al., 98-2085 (La.11/30/99), 754 So.2d 209. As explained in White v. Wal-Mart Stores, Inc., 97-393 (La.9/9/97), 699 So.2d 1081, a plaintiff must prove each of the above elements in order to prevail.

Given the above standard, it is clear that the plaintiff failed to demonstrate the existence of genuine issues of material fact in several regards. First, La.R.S. 9:2800.6(B)(1), requires the existence of an unreasonable risk of harm and that the risk of harm was reasonably foreseeable. In support of their motion, Kroger and Duke entered Duke’s affidavit into evidence wherein he explained that, immediately |sfollowing the accident, he tested the cart’s brakes and found no problems. Further, he stated that, the day after, he sent the scooter to Kroger’s mechanic who found no safety hazards. Even if this latter statement was ignored due to lack of personal knowledge as urged by the plaintiff, she failed, as the party who would bear the burden of proof at trial, to present further evidence creating a genuine issue regarding the presence of an unreasonable risk of harm.

Instead, she introduced her own version of events and offered the affidavit and evaluations of Dr. Randy Price, an engineer with specialized training in instrumentation, sensors, electronic and power machinery. Dr. Price performed two evaluations on the Mart Cart for the purposes of determining whether the cart had “possible design flaws and wear.” In an evaluation dated January 12, 2002, Dr. Price stated that the Mart Cart was in disrepair and was nearing the end of its operating life. Yet, he stated, that the “cart is still functioning as originally delivered from the factory (with the exception of normal wear).” In reference to the Mart Cart’s brake system, Dr. Price stated that its type of braking system was “basic but reliable, and is used on many older types of braking systems.” Dr. Price opined that the machine’s “failure during the accident” could have been caused by caps, likely not part of the original design, which were placed on the seat safety switch. He explained that the presence of the caps “can result in a joint that looks like it is making connection, when actually it is not.” However, he further stated: “Still, when tested during the evaluation session, the joints were making connection and the seat safety switch was working properly”. These statements only suggest the potential for an unreasonable risk of harm and do not rise to the level of creating a genuine issue in this regard.

| ^Finally, even if an unreasonable risk of harm existed, the plaintiff failed to establish that any risk posed by the Mart Cart was reasonably foreseeable. Duke explained that, by virtue of his position as Kroger’s manager, he had “never had any prior complaints from store patrons as to the operation of the brakes of the motorized grocery cart [the plaintiff] fell from.” The plaintiff put on no evidence indicating that she would be able to establish otherwise.

We note that the plaintiffs lack of evidence regarding a reasonably foreseeable risk also reveals another critical factor under La.R.S. 9:2800.6(B)(2) on which summary judgment was appropriate. Under that subparagraph, the plaintiff would bear the burden of proving at trial that the merchant had actual or constructive notice of the condition which caused the damage, prior to the occurrence, In short, the plaintiffs evidence failed to contravene that of the defendants in any way.

Also, to the extent that the plaintiff claimed that Kroger and Duke were liable for failure to provide instruction on the cart’s operation or for failure to train their employees, she failed to put forth evidence in opposition to Duke’s statement that: “All Kroger employees are available and willing to instruct and/or assist Kroger store patrons with the use of motorized grocery carts.” The claimant’s assumption that a lack of any further instructions caused her accident is only an assumption or an allegation. Instead, the plaintiff stated in her deposition that she did not ask for instruction on the cart’s operation. In short, the plaintiffs evidence falls short of ^establishing that she would be able to prove her burden of proof at trial.

Summary Judgment — Assembled Products

The plaintiff contends that the trial court erred in granting APC’s motion for summary judgment, asserting that APC “did not present any evidence to controvert the existence of the defects of design of their Mart Cart or that they provided gave [sic] adequate warnings of its design flaws which created an unreasonable danger of harm to those who used their product.”

The LPLA, La.R.S. 9:2800.51 et seq., provides the exclusive theories of manufacturers’ liability for damages caused by their products. Lavergne v. America’s Pizza Co., LLC, 02-889 (La.App. 3 Cir. 2/5/03), 838 So.2d 845. A manufacturer shall be liable for damage caused by an unreasonably dangerous characteristic of a product when such damage arises from a reasonably anticipated use of the product. La.R.S. 9:2800.54(A). A product may be unreasonably dangerous in: (1) its construction or composition; (2) its design; (3) failure to adequately warn; or (4) its nonconformity to an express warranty. La. R.S. 9:2800.54(B). The burden is on the plaintiff to prove that a product is unreasonably dangerous. La.R.S. 9:2800.55(D). “Defects are not presumed to be present by the mere happening of an accident.” Spott v. Otis Elevator Co., 601 So.2d 1355, 1364 (La.1992), citing Broussard v. Pennsylvania Millers Mut. Ins. Co., 406 So.2d 574 (La.1981).

Unreasonably Dangerous in Design

Louisiana Revised Statutes 9:2800.56 provides:

|SA product is unreasonably dangerous in design if, at the time the product left its manufacturer’s control:
(1) There existed an alternative design for the product that was capable of preventing the claimant’s damage; and
(2) The likelihood that the product’s design would cause the claimant’s damage and the gravity of that damage outweighed the burden on the manufacturer of adopting such alternative design and the adverse effect, if any, of such alternative design on the utility of the product. An adequate warning about a product shall be considered in evaluating the likelihood of damage when the manufacturer has used reasonable care to provide the adequate warning to users and handlers of the product.

Even if a plaintiff shows that an alternative product exists which is capable of preventing the damage, the plaintiff must also satisfy the “risk/utility” analysis to determine whether the utility of the product is weighed against the risk of harm. La.R.S. 9:2800.56; See also Guidry v. Coregis Ins. Co., 04-325 (La.App. 3 Cir. 12/29/04), 896 So.2d 164, 173.

The plaintiff points to Dr. Price’s evaluation of the Mart Cart and his affidavit filed in support of her opposition to summary judgment. In the affidavit, Dr. Price addressed two separate areas of the Mart Cart: the body design and the braking system. Dr. Price opined that the Mart Cart’s skirting did not have a guard to prevent the cart from potentially entrapping one’s foot underneath. He stated that this “design flaw” could have been prevented by designing it with a straight and narrow side akin to the design of the Lark EZ Shopper, another cart which was offered at Kroger at the time of the accident.

Next, Dr. Price stated that the braking system on the Mart Cart only provided a manual foot brake rather than having both an electronic and manual braking system. He further explained that if the Mart Cart would have had the dual braking system, it would have stopped immediately when the plaintiff released the throttle. Dr. Price 19stated: “This technology was available and it was and is relatively inexpensive!)]”

APC notes that, although Dr. Price opined that certain “technology was available at the time,” there is no evidence in the record as to the date in which the Mart Cart left the manufacturer. Further, it adds that the record also does not contain evidence as to the manufacturer’s specifications and standards to demonstrate when and how the engineers designed the Mart Cart.

APC also points out the discrepancy between Dr. Price’s evaluations and his affidavit. In his January 2002 evaluation, Dr. Price stated that the Mart Cart’s braking system was “basic but reliable!.]” In his May 2002 evaluation, Dr. Price compared the Mart Cart to the newer Lark EZ Shopper “to determine if the Mart Cart contained either a defective or worn drive train, which allows the car to free roll easier than a similar, newer cart.” After testing the two carts, Dr. Price found that “there was no noticeable difference in the resistance to rolling.”

In speaking of the body design, Dr. Price stated that the plaintiffs injuries could have been prevented “easily and inexpensively” if the Mart Cart was designed with a straight and narrow side akin to the design of the Lark EZ Shopper. However, it cannot be inferred from Dr. Price’s general statements whether the alternative design was available at the time the Mart Cart was manufactured. Further, Dr. Price did not state nor did the plaintiff present evidence on the cost of this alternative design at the time of the Mart Cart’s manufacturing in order to balance its utility against the risk of harm. In his affidavit, Dr. Price stated that an alternative dual brake system design which “was available” could have “easily and inexpensively,” been incorporated. Yet, again, the plaintiff failed to establish the point at which the Mart Cart left the manufacturer as is required under the LPLA.

| mFurther, Dr. Price’s affidavit provided that the plaintiff’s injuries could have been prevented by an alternative brake design; however, according to his testing of the two carts, “there was no noticeable difference to the resistance to rolling.” As such, it cannot be said that the plaintiff raised a genuine issue of material fact as to whether she would be able to prove at trial that an alternative was “capable of preventing the claimant’s damage” as her own expert found no notable difference between the Mart Cart and an alternative. See La.R.S. 9:2800.56.

Accordingly, summary judgment was appropriate in regard to whether APC was liable to the plaintiff under the theory of whether the Mart Cart was unreasonably dangerous in design.

Failure to Warn

In her amended petition, the plaintiff alleged that APC was liable under the LPLA for failing to include labeling which contained a “clear, large, and unambiguous warning capable of being seen and understood by the elderly and disabled persons that the product is unstable and can roll with a minimal amount of force, even when turned off.”

Louisiana Revised Statutes 9:2800.57 provides that:

A. A product is unreasonably dangerous because an adequate warning about the product has not been provided if, at the time the product left its manufacturer’s control, the product possessed a characteristic that may cause damage and the manufacturer failed to use reasonable care to provide an adequate warning of such characteristic and its danger to users and handlers of the product.
B. A manufacturer is not required to provide an adequate warning about his product when:
(1) The product is not dangerous to an extent beyond that which would be contemplated by the ordinary user or handler of the product, with the ordinary knowledge common to the community as to the product’s characteristics; or
|n (2) The user or handler of the product already knows or reasonably should be expected to know of the characteristic of the product that may cause damage and the danger of such characteristic.

However, “[a] ‘mere allegation of inadequacy’ is insufficient for a plaintiff to survive summary judgment on a failure-to-warn claim.” Stahl v. Novartis Pharmaceuticals Corp., 283 F.3d 254, 264-65 (5th Cir.2002). The plaintiff must go beyond the pleadings and designate specific facts in the record showing that there is a genuine issue of material fact to defeat summary judgment. Id.

Kroger attached to its motion for summary judgment a picture of the Mart Cart and a warning attached to the machine. However, the plaintiff offered no evidence in regard to the Mart Cart’s warning. While there are pictures in the record, which were supplied by Kroger, the plaintiff offers no information to support her claim that these warnings were somehow inadequate. The plaintiffs expert, Dr. Price, did not mention the warnings in his affidavit or either evaluation. In her deposition, the plaintiff admitted that she did not read the warnings, rather she assumed the cart operated as other carts she had previously used. As the plaintiff cannot rely on her mere allegation, summary judgment was appropriate.

This assignment lacks merit.

DECREE

For the foregoing reasons, the trial court’s judgment granting the defendants’ motions for summary judgment is affirmed. All costs associated with this proceeding are assessed against the appellant, Bertha Gruver.

AFFIRMED.

      . Initially, the plaintiff filed suit individually and as the natural tutor of her son. Due to her son’s death, the plaintiff amended her petition to add the estate of her son and her daughter, as an heir of her son's estate, as plaintiffs. For the purposes of this opinion, the plaintiffs will be collectively referred to as the “plaintiff.”

      . The record contains no information as to whether Mart Cart, Inc. answered the petition.

      . Although initially couched as a claim pursuant to La.Civ.Code art. 2317 and La.Civ.Code art. 2322, the proceeding against Kroger and Duke arises from a fall on the merchant premises. Accordingly, the applicable law is La.R.S. 9:2800.6.

      . Furthermore, La.R.S. 9:2800.6(C)(1) requires proof of a temporal element — that the condition "existed for such a period of time.” See Babin v. Winn-Dixie Louisiana, Inc., 00-78 (La.6/3/00), 764 So.2d 37, citing White v. Wal-Mart Stores, Inc., 97-0393 (La.9/9/97), 699 So.2d 1081. As explained above, the plaintiff did not produce sufficient evidence to demonstrate that there is a genuine issue of material fact as to whether Kroger or Duke had notice of any alleged defect.

      . Kroger and Duke also point to the plaintiff's deposition as support that the plaintiff's conduct, as opposed to the Mart Cart, was the cause of her injuries. In her deposition, the plaintiff testified that she did not read any of the instructions or labels on the scooter on the day in question and that she did not ask any Kroger employee for instruction on how to use the Mart Cart. Further, the plaintiff testified that she lifted her left foot off the brake and onto the floor aware of the fact that the cart was still moving.
      In opposition to the motion, the plaintiff entered into evidence her affidavit stating that based upon her previous experience with other mechanical grocery carts and her limited mechanical knowledge, she was unaware that the cart had a braking system. Rather, she believed "that the cart simply stopped when you let go of the throttle on the cart[.]"


author: PAINTER, Judge.

text:
    Edward COX v. PORT AGGREGATES, INC.
    No. 10-707.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 2, 2011.

      H. Douglas Hunter, Michael D. Bass, Opelousas, LA, for Defendants/Appellants, Port Aggregates, Inc. and Bridgefield Insurance Co.
    Thomas E. Townsley, Lake Charles, LA, for Plaintiff/Appellee, Edward Cox.
    Court composed of OSWALD A. DECUIR, MARC T. AMY, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| ¶ Defendants, Port Aggregates, Inc. (Port) and Bridgefield Casualty Insurance Co. (Bridgefield), appeal the judgment of the Office of Workers’ Compensation finding that Plaintiff, Edward Cox, sustained a compensable injury in the course and scope of his employment with Port, that he is entitled to all medical treatment related to the injury, and awarding a penalty of $6,000.00 and attorney’s fees of $7,500.00..

FACTS

Plaintiff was employed as a cement truck driver for Port. His job duties included picking up and positioning the metal chutes which channel the cement from the truck to a form. The undisputed testimony from the trial of this matter establishes that at some point in early 2009, Plaintiff began suffering from neck, right shoulder and right arm pain especially when handling the chutes. In May 2009, his wife found out that he was in pain and made him go to the emergency room at Lake Charles Memorial Hospital. The emergency room doctor disabled him from working and told him to find an orthopedic specialist to treat him. Mrs. Cox called Tiffany Reed, the human resource director at Port, and told her that Plaintiff had been injured and would be filing a workers’ compensation claim. Plaintiff began seeing Dr. David Drez, who later referred him to Dr. Clark Gunderson. Dr. Gunder-son recommended physical therapy, but Bridgefield refused to authorize it and refused to pay for the visit to Dr. Gunderson. Plaintiff also received medical care from Dr. Jerome Altimura, who also found Plaintiff to be unable to work.

The matter was tried on October 12, 2009. After hearing the evidence, the Workers’ Compensation Judge ruled in favor of Plaintiff. Defendants appeal.

| .DISCUSSION

Work-related Injury

Defendants assert that Plaintiff is not entitled to workers’ compensation benefits because he failed to prove he suffered an actual identifiable, precipitous event that caused his injury.

[Louisiana Revised Statutes] 23:1021 defines “accident” for purposes of Title 23, Labor and Workers’ Compensation, Chapter 10, Workers’ Compensation: “(1) ‘Accident’ means 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.” A claimant must establish by a preponderance of the evidence that an accident occurred on that job site and that an injury was sustained. Garner v. Sheats & Frazier, 95-39 (La.App. 3 Cir. 7/5/95); 663 So.2d 57. “A workers testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident.” Bryan v. Allstate Timber Co., 98-840, p. 3 (La.App. 3 Cir. 12/16/98); 724 So.2d 853, 855.

Ricaud v. Holloway Sportswear, Inc., 98-1422, p. 14 (La.App. 3 Cir. 5/26/99), 741 So.2d 124, 134, writs denied, 99-1822, 99-1882 (La.10/1/99), 748 So.2d 454, 455.

Plaintiff testified that he began having neck and shoulder pain while lifting chutes about six weeks before he went to the doctor. Both he and his wife testified that he had previously been in good health and free of neck or shoulder pain. He further testified that when he began feeling pain, he went to the fleet manager, Stuart Guinn, and told him that he was hurting and asked to be moved to an aggregate truck which is “less physical.” Guinn agreed that Plaintiff asked to change to an aggregate truck but did not remember being told that this was because of pain or injury. Guinn testified that Plaintiff was one of the company’s best drivers and that he had never known Plaintiff to be dishonest or devious. Phillip Green, a co-worker, testified that |Rhe had heard Plaintiff complaining of neck and shoulder pain for a couple of months before he became disabled. The trial court found that Plaintiff suffered a work related injury stemming from the repetitive motions involved in his job. In Ricaud, the court explained that:

[E]ven though Plaintiff could not isolate the exact repetitive motion that caused her injury, “[h]er inability to do so is not unreasonable under the circumstances; in other words, absent any significant contradictory evidence, it does not cast suspicion as to the accident or incident causing the disability.” Defendant argues that Plaintiffs injury falls under the statutory exemption of an injury that is nothing “more than simply a gradual deterioration or progressive degeneration.” This court has considered this language in Guilbeaux v. Martin Mills, Inc., 93-1359, p. 5 (La.App. 3 Cir. 5/4/94); 640 So.2d 472, 475, writ denied, 94-1444 (La.9/23/94); 642 So.2d 1291. In Guilbeaux, the claimant suffered a repetitive motion injury from her job as a “cut-tube” in a production line. Considering La.R.S. 23:1021, this court explained:
We must add our voices to those before us regarding the interpretation of “which is more than a gradual deterioration or progressive degeneration.” Surely, this phrase does not relate to an injury which is clearly spurred by work activity, such as that in the case sub judice, but only to non-work related activities. For to interpret it otherwise, would lead to an absurd result as it would negate the very purpose for which the Worker’s Compensation Act was instituted; namely to provide relief to employees whose work has caused them injury.

Id. at 134.

In light of the testimony and corroborating medical evidence, we find no manifest error in the trial court’s determination that Plaintiff suffered an injury compensable under the Louisiana Workers’ Compensation Statute.

Penalties and Attorney’s Fees

Defendants next assert that no awards of penalties and attorney’s fees should have been made. They first assert that no such awards were appropriate because Plaintiff failed to show a workplace accident as defined by the statute. Alternatively, they argue that the claim was reasonably controverted. Having found that the trial |4court was correct in finding that a workplace accident occurred, we will consider whether Defendants reasonably controverted Plaintiffs compensation claim.

Defendants assert that they investigated Plaintiffs claim. They further assert that Mr. and Mrs. Cox told the investigator the same thing they said at trial, that there was no work related accident. We note that there was no such testimony at trial. The testimony at trial indicates that there was a work related accident and that the Coxes told everyone who asked them that Plaintiffs injury arose on the job. Defendants further state that they investigated by communicating with Dr. Gunderson and that Dr. Gunderson told them that the accident was not work related. However, while they argue that Dr. Gunderson must have told their investigator that the injury was not work related, they fail to point to any communication between Dr. Gunder-son and their investigator in which Dr. Gunderson so stated. The investigator did not testify at trial. Further, there is nothing of record to indicate that Defendants communicated with any of the other doctors who treated Plaintiff with regard to his injury.

Accordingly, we agree with the trial court that Defendants failed to adequately investigate Plaintiffs claim and arbitrarily and capriciously failed to pay benefits. Accordingly, awards of attorney’s fees and penalties were in order.

Defendants further argue that the trial court erred in awarding $6,000.00 in penalties since only two claims wei’e denied, one for medical benefits and one for disability benefits. Contrary to this argument, this court, sitting en banc in Haynes v. Williams Fence and Aluminum, 01-0026 (La.App. 3 Cir. 1/9/02), 805 So.2d 233, found that the statute provided for multiple penalties for multiple violations as stated in its earlier opinion in Haynes v. Williams Fence and Aluminum, 01-0026, pp. 25-26 (La.App. 3 Cir. 7/25/01), 805 So.2d 215, 231 (alteration in original):

lsThe underlying reason for the workers’ compensation provisions allowing the imposition of penalties and attorney fees for the arbitrary and capricious withholding of benefits is to combat the indifference by employers and insurers toward injured employees. Ward v. Phoenix Operating Company, 31,656 (La.App.2d Cir.2/24/99), 729 So.2d 109. In Gay [v. Georgia Pacific Corp., 32,653 (La.App. 2 Cir. 12/22/99); 754 So.2d 1101,] this court decided that the triggering event for penalties and attorney fees is not the injury giving rise to the compensation claim, but instead is the employer’s or insurer’s failure to comply with the procedures set forth in La. R.S. 23:1201. Interpretation of “claim” as a specific demand for particular benefits (such as an operation) rather than as a general demand for benefits under the compensation laws is consistent with the Gay rationale. As in Gay, “to conclude otherwise would dilute the deterrent effect of these statutory provisions, which are not intended to make the worker ‘whole’ but rather to discourage specific conduct on the part of the employer.”

See also Fontenot v. Reddell Vidrine Water Dist., 02-439 (La.1/14/03),836 So.2d 14, in which the Louisiana Supreme Court cited this holding with approval.

In this case, it is undisputed that Defendants failed to reimburse Plaintiff for his medical and pharmacy bills, failed to approve physical therapy recommended by Dr. Gunderson, failed to approve x-rays and therapy recommended by Dr. Altimu-ra, and failed to pay compensation benefits. Each of these incidents constitutes a “claim” as defined in the Haynes cases. Accordingly the trial court did not err in granting penalties in the amount of $6000.00.

Attorney’s Fees on Appeal

In brief, Plaintiff seeks additional attorney’s fees to cover the cost of this appeal. However, because Plaintiffs failed to appeal or answer the defendant’s appeal, we have no choice but to deny this request. Dordain v. Anthony Seafood & Lobster House, 03-0900 (La.App. 4 Cir. 11/5/03), 860 So.2d 1166; La.Code Civ.P. art. 2133.

|fiCONCLUSION

For these reasons, the judgment of the workers’ compensation judge is affirmed. Costs of this appeal are assessed to Defendants.

AFFIRMED.