author: PETERS, J.

text:
    LOUISIANA BUREAU OF CREDIT CONTROL, INC. v. Posey E. LANDECHE, Jr.
    No. 08-1099.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 2009.

      John G. Poteet, Jr., Attorney at Law, Lafayette, LA, for Plaintiff/Appellant, Louisiana Bureau of Credit Control, Inc.
    Paul G. Moresi, III, Attorney at Law, Abbeville, LA, for Defendant/Appellee, Po-sey E. Landeche, Jr.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.
   PETERS, J.

|,The plaintiff, Louisiana Bureau of Credit Control, Inc. (LBCC), appeals the trial court’s judgment granting the defendant, Posey E. Landeche, Jr., an involuntary dismissal of LLBC’s suit against him. For the following reasons, we affirm.

DISCUSSION OF THE RECORD

The facts in this litigation are not in dispute. Mr. Landeche is the owner of immovable property consisting of three lots located in the Jackson Square Subdivision (Subdivision), situated in Lafayette Parish, Louisiana. All of the immovable property located in the Subdivision is subject to the terms and conditions imposed by the Jackson Square Homeowners Association, Inc. (Association), a nonprofit corporation formed in April of 1981, for the purpose of “provid[ing] for maintenance, presentation and architectural control of the residential lots and areas” within the Subdivision. As a record owner of lots in the Subdivision, Mr. Landeche is subject to the terms and conditions established by the Association.

At its annual meeting held on January 14, 1998, the Association attempted to raise the quarterly assessment imposed on the property owners to $20.00 per lot. Despite receiving notice of the Association’s action, Mr. Landeche has failed to pay any of the quarterly assessments on his three lots. In 2006, the Association assigned all of its rights in Mr. Landeche’s overdue assessments to LBCC. After making demand on Mr. Landeche to no avail, LBCC filed the instant suit, seeking judgment against Mr. Landeche for the unpaid assessments and attorney fees.

Mr. Landeche responded to the suit by filing, among other pleadings, an exception of prescription asserting that LBCC’s suit was based on open account and, |2therefore, subject to a three-year libera-tive prescription. At the beginning of the trial on the merits, the trial court granted Mr. Landeche’s prescription exception for all amounts that had become due prior to March 24, 2008. Thereafter, at the close of the presentation of evidence by LBCC, the trial court granted Mr. Landeche’s motion for involuntary dismissal. In doing so, the trial court concluded that LBCC failed to prove that the Association’s quarterly assessment was agreed to by three-quarters of the lot owners as required by La.R.S. 9:1141.6. After the trial court rejected its motion for a new trial, LBCC perfected this appeal.

OPINION

In its appeal, LBCC asserts that the trial court erred in concluding that the assessment at issue is a building restriction pursuant to La.R.S. 9:1141.5 and in determining that the applicable prescription period is three years and not ten years. In raising its arguments on appeal, LBCC argues that we should review the trial court’s conclusions under the manifest error/clearly wrong standard. However, as previously stated, the facts are not in dispute. Thus, the issues before us are questions of law. That being the case, our task is simply to decide whether the trial court’s findings were correct. Johnson v. Calcasieu Parish Sheriff's Dep’t, 06-1179 (La.App. B Cir. 2/7/07), 951 So.2d 496.

The first issue to be decided in this appeal is whether the Association’s assessment constitutes a building restriction rather than a personal obligation. That issue is resolved in favor of Mr. Landeche by reference to the jurisprudence as well as the pertinent legislation.

Building restrictions are incorporeal immovables and sui generis real rights likened to predial servitudes. LSA-C.C. art. 777. As real rights, building restrictions are not rights personal to the vendor. Rather, they inure to the benefit of all other property owners under a | :.general plan of development, and are real rights running with the land. Once they are recorded in the public records, a subsequent acquirer of immovable property burdened with such restrictions is bound by them.... Building restrictions may be amended or terminated as provided in the act of creation. LSA-C.C. art. 780 & LSA-R.S. 9:1141.5-1141.6. In the absence of such a provision in the act, the restrictions may be amended or terminated as prescribed by LSA-C.C. art. 780. See LSA-R.S. 9:1141.5-1141.6.

Oak Harbor Prop. Owners’ Ass’n, Inc. v. Millennium Group I, L.L.C., 05-802, pp. 5-6 (La.App. 1 Cir. 5/5/06), 934 So.2d 814, 817-18 (citations omitted). See also Brier Lake, Inc. v. Jones, 97-2413 (La.4/14/98), 710 So.2d 1054.

The Louisiana Homeowners Association Act (Act), La.R.S. 9:1141.1, et seq., which was enacted in 1999, and applies to all residential planned communities, also addresses this issue. The imposition of an affirmative duty, “including the affirmative duty to pay monthly or periodic dues or fees, or assessments for a particular expense or capital improvement, that are reasonable for the maintenance, improvement, or safety, or any combination thereof, of the planned community” constitutes a building restriction. La.R.S. 9:1141.5. The provisions of the Act are remedial in nature and, therefore, apply both prospectively and retroactively. See Comments to La.R.S. 9:1141.1, et seq.

The Act only applies, however, when an association’s articles of incorporation, bylaws, restrictions, or other community documents are silent on a relevant issue. La.R.S. 9:1141.3(A). In the absence of a procedure for the establishment/amendment of a building restriction in an association’s community papers, La. R.S. 9:1141.6(B) provides:

|4(1) Building restrictions may be established by agreement of three-fourths of the lot owners.
(2) Existing building restrictions maybe made more onerous or increased by agreement of two-thirds of the lot owners.
(3) Existing building restrictions may be made less onerous, reduced, or terminated by agreement of more than one-half of the lot owners.

In the matter before us, Article VI of the Association’s Articles of Incorporation provides that the Association shall:

(a) Exercise all of the powers and privileges and to perform all of the duties and obligations of the Association as set forth in that certain Act amending and supplementing the Restrictions of the Jackson Square Subdivision, hereinafter called the “Restrictions” applicable to the property and recorded in the office of the Clerk of Court for the Parish of Lafayette, Louisiana, under Act Number 79-001865 of said office, and as may be amended from time to time in the future, said restrictions being incorporated herein as if set forth at length.
(b) Fix, levy, collect and enforce payment by any lawful means, all charges or assessments pursuant to the terms of the restrictions; to pay all expenses in connection therewith and all office and other expenses incident to the conduct of the business of the Association, including all licenses, taxes or governmental charges levied or imposed against the property of the Association.

(Emphasis added).

Furthermore, Article X of the Association’s By-Laws provides that “[a]s more fully provided in the Restrictions each member is obligated to pay the Association annual maintenance charges and special assessments for capital improvements which are secured by a continuing lien upon the property against which the assessment is made.” Unfortunately, the Restrictions are silent on the issue of yearly or quarterly assessments and leave maintenance of the subdivision to the individual lot owners, subject to penalties for failing to maintain their lots in a presentable manner as proscribed by the Subdivision’s developers.

IsWith regard to annual and special meetings, Article III, Section 3 of the Association’s By-Laws provides that “[t]he presence at the meeting of members entitled to cast, or of proxies entitled to case [sic], one-tenth (1/10) of the votes of each class membership shall constitute a quorum for any action except as otherwise provided in the Articles of Incorporation, the Restrictions, or these By-Laws.” (Emphasis added). In this case, LBCC established that the January 14, 1998 meeting where the assessment was enacted had “a quorum to conduct business.”

We find that the trial court correctly concluded that the quarterly assessment constituted a building restriction which is subject to the provisions of the Act. We also find no error in the trial court’s determination that the Association’s community documents failed to specify the procedure for establishing restrictions, thus making La.R.S. 9:1141.6 applicable. The quorum present at the January 14, 1998 meeting certainly had the authority to take some actions binding on the membership. However, the Articles of Incorporation provided that fixing, levying, or collecting and enforcing assessments were limited to “lawful means,” and all of the Association documents are silent as to the definition of that term. Thus, such action is governed by La.R.S. 9:1141.6(B)(2), ie., that the restriction increase was established by agreement of at least two-thirds of the lot owners. The record contains no evidence of compliance with that requirement.

Because we find that LBCC failed in its burden of proof, we need not consider the assignment of error addressing the trial court’s grant of the exception of prescription.

| (¡DISPOSITION

For the foregoing reasons, we affirm the trial court judgment in all respects. We tax all costs of this appeal to Louisiana Bureau of Credit Control, Inc.

AFFIRMED.

      . Testimony was presented that prior to this time, an assessment existed of $15.00 per lot.

      . In pleadings, LBCC asserted that the amount due was $9,258.79.

      . The Legislative Intent of La.R.S. 9:1141.1 states, “The provisions of this Act legislatively ovemde the case of Brier Lake, Inc. v. Jones, 97-C-2413 (La.4/14/98); 710 So.2d 1054, are remedial, and shall apply both prospectively and retroactively.”

      . LBCC established this through the minutes of the annual meeting of that date.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    Cindi BABINEAUX v. PNK (LAKE CHARLES), L.L.C. d/b/a L’Auberge Du Lac Hotel & Casino, et al.
    No. 08-1107.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 2009.
    Russell J. States, Jr., P. Jody Lavergne, States & Lavergne, LLC, Lake Charles, Louisiana, for Plaintiff/Appellant, Cindi Babineaux.
    Thomas J. Solari, Lance B. Vinson, Woodley, Williams Law Firm L.L.C., Lake Charles, Louisiana, for Defendants/Appel-lees, PNK (Lake Charles), L.L.C. d/b/a L’Auberge du Lac Hotel & Casino and Ed Duplechin.
    Court composed of MARC T. AMY, BILLY H. EZELL, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

|!Plaintiff, Cindi Babineaux, appeals the trial court’s grant of a Motion for Summary Judgment filed by the Defendants, PNK (Lake Charles), L.L.C. d/b/a L’Au-berge du Lac Hotel and Casino and Ed Duplechin, ruling that the Defendants were immune from tort liability pursuant to the exclusive remedy provisions of La. R.S. 28:1032. For the following reasons, we reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

When the accident at issue herein occurred, Ms. Babineaux was employed as|?a cocktail waitress at L’Auberge du Lac Casino (hereinafter refeired to as “L’Au-berge”) in Lake Charles, Louisiana. At approximately 4:20 p.m. on July 2, 2006, Ms. Babineaux arrived for work at L’Au-berge. She customarily had a pre-shift meeting at 4:45 p.m., and her shift was scheduled to begin at 5:30 p.m. As Ms. Babineaux was walking from her car through the casino’s outside parking lot, she was struck by a L’Auberge limousine being driven by L’Auberge’s employee, Ed Duplechin.

On June 27, 2007, Ms. Babineaux filed suit against PNK, d/b/a L’Auberge, and Mr. Duplechin, seeking compensation for her personal injuries. PNK and Mr. Du-plechin answered Ms. Babineaux’s petition, asserting the affirmative defense of tort immunity pursuant to La.R.S. 23:1032.

On April 4, 2008, PNK and Mr. Duple-chin filed a Motion for Summary Judgment, asserting that there is no dispute as to any material fact and that PNK and Mr. Duplechin are entitled to judgment against Ms. Babineaux dismissing her tort claim as a matter of law on the basis that at the time of the accident, Ms. Babineaux was in the course and scope of her employment with L’Auberge; therefore, PNK and Mr. Duplechin are immune from tort liability. Relying upon Bosse v. Westinghouse Electric, Inc., 93-1898 (La.App. 4 Cir. 5/17/94), 637 So.2d 1157, writ denied, 94-1623 (La.9/30/94), 642 So.2d 878, and this court’s decision in Francisco v. Harris Management Co., 94-136 (La.App. 3 Cir. 10/5/94), 643 So.2d 386, the trial court ruled that “Ms. Babineaux’s heightened exposure to the limousine lot, which was immediately adjacent to the designated employees’ parking lot from which she was walking when she was hit, was solely [due] to her employment” and granted summary judgment in favor of PNK and Mr. Duplechin. Ms. Babineaux appeals.

| ¡ASSIGNMENT OF ERROR

Ms. Babineaux appeals the judgment, asserting the following assignment of error: “The trial court erred when it found that Ms. Babineaux didn’t submit any evidence that she was not in the course and scope of her employment at the time of her accident or that her accident did not arise out of her employment.”

STANDARD OF REVIEW

Appellate courts review summary judgments de novo using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Richard v. Hall, 03-1488 (La.4/23/04), 874 So.2d 131; Goins v. Wal-Mart Stores, Inc., 01-1136 (La.11/28/01), 800 So.2d 783. Accordingly, we must determine whether “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). Despite the legislative mandate favoring summary judgments found at La. Code Civ.P. art. 966(A)(2), “factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor.” Willis v. Medders, 00-2507, p. 2 (La.12/8/00), 775 So.2d 1049, 1050; Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226.

DISCUSSION

Pertinent to our review in this summary judgment case is whether the trial court erred in finding that there was no genuine issue of material fact and that PNK and Mr. Duplechin, as a matter of law, were entitled to tort immunity. PNK and Mr. Duplechin maintain that the injuries sustained by Ms. Babineaux occurred while she |4was in the course and scope of her employment; therefore, Ms. Babineaux’s exclusive remedy is derived from the Louisiana Workers’ Compensation Act.

In support of their Motion for Summary Judgment, PNK and Mr. Duplechin offered into evidence Ms. Babineaux’s Petition for Damages as well as excerpts from her deposition testimony. In their memorandum in support of their Motion for Summary Judgment, PNK and Mr. Duple-chin asserted that, “at the time of the subject occurrence, Ms. Babineaux was reporting to work and crossing from the assigned employee parking area to the employee entrance at L’Auberge.” PNK and Mr. Duplechin also offered this court’s holding in Francisco to support their contention that, because Ms. Babineaux regularly traversed the area in which she was struck by the limousine while en route to begin her shift, she faced a greater risk than the general population; therefore, Ms. Babineaux’s accident arose out of her employment. However, Francisco is easily distinguishable from this case as it deals with a defect in the premises and not a parking lot case based upon negligence.

In opposition to the Motion for Summary Judgment, Ms. Babineaux offered her own affidavit as well as the affidavit of Kristy Olmsted. In her memorandum in opposition to the Motion for Summary Judgment, Ms. Babineaux contested many of the statements that PNK and Mr. Du-plechin contend are “undisputed facts.” For | fiexample, Ms. Babineaux disputes the statement made by PNK and Mr. Duple-chin that “the entrance to which [she] was walking when [PNK’s] limousine hit her was ‘the employee entrance.’ ” Ms. Babi-neaux alleges that this entrance “is open to the public and used by many non-employees.” There is a question of fact as to whether or not Ms. Babineaux was exposed to a greater risk of harm than the general public.

Ms. Olmsted, a former coctail waitress at L’Auberge, declared in her affidavit that “L’Auberge cocktail waitresses were told to park in one of two parking areas: the garage or the outside parking lot.” Ms. Olmsted also declared that “[t]he parking lot was a designated parking lot for employees but was not an employee-only parking lot. It was common for guests to park their vehicles in the parking lot and then walk across the parking lot toward the hotel and/or casino entrance.... ” Ms. Olmsted also corroborated Ms. Babi-neaux’s assertion that “[t]he parking lot was open to the public.”

In her brief to this court, Ms. Babineaux contends that the trial court erred in finding that genuine issues of material fact do not exist as to whether she was engaged in the normal course and scope of her employment with L’Auberge at the time of her injury. We agree.

As declared by this court in Squyres v. Our Lady of Lourdes Regional Medical Center, 06-1517, p. 3 (La.App. 3 Cir. 4/4/07), 954 So.2d 897, 899-900:

This court has recognized that a “genuine issue” is a “triable issue,” an issue in which reasonable persons could disagree. Jones v. Estate of Santiago, 03-1424 (La.4/14/04), 870 So.2d 1002, 1006 (citing Smith v. Our Lady of the Lake Hosp., 93-2512 (La.7/5/94), 639 So.2d 730, 751). Further, this court has defined a “material fact” to be one in which “its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery.” Id.
Champagne v. Ward, 03-3211, pp. 4-5 (La.App. 3 Cir. 1/19/05), 893 So.2d 773, 776-77.

| r,The case of Mundy v. Department of Health and Human Resources, 593 So.2d 346 (La.1992), is pertinent to the instant case and involved a plaintiff who was physically attacked and injured in an elevator while stopped on the second floor before arriving at her work station on the eleventh floor. The supreme court examined whether the plaintiff had begun to perform her employment duties, whether the plaintiff had reached the place where she was under the supervision and control of her employer, whether the plaintiff had alternative routes to her work station, and whether the risk that gave rise to the plaintiffs injuries was greater for the plaintiff than for a non-employee. The Mundy court also examined the threshold doctrine stating:

An exception, known as the threshold doctrine, has been recognized when an accident occurs at a place with an unusually hazardous travel risk which is immediately adjacent to, but not on, the employer’s premises. The threshold doctrine generally involves a special risk, attributable to the location of the work premises, that is different from the risks to which the general traveling public is exposed or that is more aggravated in the area adjacent to the employer’s premises than elsewhere. W. Malone & H. Johnson, supra, at § 169; see Templet v. Intracoastal Truck Line, Inc., 255 La. 193, 230 So.2d 74 (1969) (compensation denied when the employee was injured in a collision while making a left turn in his vehicle from the highway onto his employer’s premises, because the highway risk was not shown to be a peculiar and distinctive one encountered by the employee to a greater extent or frequency than by the general public, and the conditions of travel in the vicinity of the employee’s premises were no more dangerous than those prevailing generally along the highway).
The threshold doctrine is not applicable here. Even if the risk which gave rise to the injury could be considered as a defect hazardous to travelers immediately adjacent to the employer’s premises, the risk was no more dangerous in the immediate vicinity of the employer’s premises than elsewhere along her route of travel to work.
Because the neutral nature of the risk ■ from which the injury arose required a strong showing of “course of employment,” and because the evidence relative to time, place and employment activity provided only a relatively weak showing of “course of employment,” we conclude the |7employer failed to meet its burden of proving entitlement to tort immunity.

Id. at 350-51. The supreme court concluded that the plaintiff was not in the course and scope of her employment at the time of her physical assault and injuries.

In light of Mundy and the affidavits of Ms. Babineaux and former employee, Ms. Olmsted, we conclude that genuine issues of material fact exist with regard to whether Ms. Babineaux had begun to perform her employment duties. Such issues also exist with regard to whether Ms. Babi-neaux had reached the place where she was under the supervision and control of her employer and whether Ms. Babineaux had alternative routes to her work station. Finally, considering the affidavits of Ms. Babineaux and Ms. Olmsted, there is a question of material fact as to whether the risk that gave rise to Ms. Babineaux’s injuries was greater for her than that of a non-employee.

Therefore, we find that genuine issues of material fact remain and that the trial court erred in ruling that, as a matter of law, PNK and Mr. Duplechin are entitled to summary judgment. Accordingly, pursuant to our de novo review herein, we reverse the trial court’s judgment granting summary judgment in favor of PNK and Mr. Duplechin.

DECREE

For the above reasons, the judgment of the trial court is reversed, and the case is remanded for further proceedings consistent with this opinion. Further, we assess all costs of this appeal against the Defendants/Appellees, PNK (Lake Charles), L.L.C. d/b/a L’Auberge du Lac Hotel and Casino and Ed Duplechin.

REVERSED AND REMANDED.

      . Louisiana Revised Statutes 23:1032 provides:
      A.(l)(a) Except for intentional acts provided for in Subsection B, the rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights, remedies, and claims for damages, including but not limited to punitive or exemplary damages, unless such rights, remedies, and damages are created by a statute, whether now existing or created in the future, expressly establishing same as available to such employee, his personal representatives, dependents, or relations, as against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal, for said injury, or compensable sickness or disease.
      (b) This exclusive remedy is exclusive of all claims, including any claims that might arise against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal under any dual capacity theory or doctrine.
      (2) For purposes of this Section, the word “principal” shall be defined as any person who undertakes to execute any work which is a part of his trade, business, or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.
      B. Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner, or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.
      C. The immunity from civil liability provided by this Section shall not extend to:
      (1) Any officer, director, stockholder, partner, or employee of such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment; and
      (2) To the liability of any partner in a partnership which has been formed for the purpose of evading any of the provisions of this Section.

      . An accident ‘‘arises out of” employment if the risk from which the injury resulted was greater for the employee than for a person not engaged in employment. Mundy v. Department of Health and Human Resources, 593 So.2d 346 (La.1992). The term "in the course of” brings into focus the time and place relationship between the risk and the employment. Raybol v. Louisiana State University, 520 So.2d 724 (La.1988). The two requirements cannot be considered in isolation from each other. A strong showing by the claimant with reference to the “arising out of” requirement may compensate for a relatively weak showing on the “in the course of” requirement, or vice ver-sa. Raybol, at p. 726.

        Francisco, 643 So.2d at 388.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    Shadley B. MEIER v. NEW ORLEANS SAINTS.
    No. 2008-CA-1158.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 12, 2009.
    Order Granting Rehearing April 17, 2009.
    Frank A. Bruno, New Orleans, LA, for Plaintiff/Appellant.
    David K. Johnson, Johnson, Stiltner & Rahman, Baton Rouge, LA, for New Orleans Saints and Louisiana Workers’ Compensation Corporation.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY and Judge PAUL A. BONIN).
   JOAN BERNARD ARMSTRONG, Chief Judge.

|, The claimant-appellant, Shadley Meier, appeals a workers’ compensation judgment of May 27, 2008, in favor of the defendants, the New Orleans Saints and the Louisiana Workers’ Compensation Corporation, denying any benefits to claimant.

In the hearing below, the parties offered no argument or any live testimony. The only evidence introduced was in the form of exhibits consisting of: (1) payroll records; (2) a copy of the NFL Player Contract entered in to between the claimant and the Saints; (3) a Notice of Termination dated May 3, 2006 addressed to the claimant by the Saints; (4) a copy of a June 28, 2006, medical report from Dr. Robert R. Scheinberg, M.D. concerning the claimant; and (5) a copy of the telephonic deposition of the claimant. Subsequently, both parties submitted post-trial briefs.

Claimant was employed as a football player by the New Orleans Saints under a contract for the 2005-2006 season. It is undisputed that the claimant injured his knee in the course and scope of his employment in July of 2005 while at training camp. The workers’ compensation judge found that the claimant sustained a second knee injury in 2006. The claimant is correct in his assertion |2that there is absolutely no evidence in the record of a knee injury in 2006. Additionally, we note that the defendants did not argue below that there was any such injury in 2006. The defendants have raised this issue for the first time on appeal, apparently in consequence of the finding below that the claimant sustained another knee injury in 2006. Moreover, we can tell by the way the reference to 2006 is set forth in the reasons for judgment that it was not a typographical error. Therefore, we find that there was no second injury in 2006.

It is uncontested that claimant’s contract was terminated on May 3, 2006, prior to the regular 2006 season. In June of 2006, subsequent to termination, claimant had a second knee surgery, impliedly related to the original injury. No one contests the workers’ compensation judge’s findings, supported by the payroll record, that the claimant’s earnings with the Saints for 2006 were $66,694.35 less $176.94 travel reimbursement for a total of $66,417.91. The workers’ compensation judge found this to be all that the claimant was entitled to under his contract through his date of termination on May 3, 2006 and that he is entitled to nothing more in the way of workers’ compensation benefits.

We are able to conclude from the claimant’s deposition testimony that all of his knee problems can be traced to 2005 and that he cannot return to a career in football. The medical report of Dr. Robert R. Scheinberg supports this conclusion. In the total absence of any contrary evidence or argument we find that the claimant has carried his burden of proof in this regard.

The judgment of the workers’ compensation court denied the claimant any penalties or attorney fees. The claimant does not appeal that portion of the judgment. On appeal, the claimant asks only for Supplemental Earnings Benefits at the maximum rate of $454.00/week. While the defendants do not dispute the | J'act that $454.00/week is the maximum rate, they argued below that if the claimant was entitled to anything at all, it would be for 75 weeks at the minimum rate of $117.00 for the period from July 30, 2005, through June 30, 2007 which includes a 25 week credit for wages actually received during the 2005 football season pursuant to the NFL Collective Bargaining Agreement (“NFL CBA”). Although the NFL CBA is not in the record, we will accept the 25 week credit as a given as it is acknowledged by both parties. Also we will accept as a given, the 75 week figure presented by the defendants as the claimant has asserted both here and below that the only real dispute between the parties is the calculation of the average weekly wage as this will be determinative of whether the claimant is entitled to the minimum or maximum benefit.

The defendants’ assertion that the claimant, if he is entitled to anything at all, would be limited to the minimum under La. R.S. 23:1202(2) of $117.00/week is based on their contention that the claimant’s benefits should be only the $471.43 he earned in the mini-training camp in the spring of 2005 which was the total compensation he had received from the Saints prior to his July 30, 2005, injury, which injury occurred prior to the commencement of the regular season. In other words, the defendants contend that the claimant was not entitled to use the very-large annual compensation called for in the contract in calculating his benefits.

The claimant does not challenge the finding below that his signing bonus of $350,000.00 is not included in the determination of his benefit calculation. The workers’ compensation judge found that the claimant was a player with the New Orleans Saints football team pursuant to a two-year contract signed on March 14, 2005. This is uncontested and is supported by a copy of the contract in the record which states that the term of the contract is as follows:

14This contract covers 2 football seasons), and will begin on the date of execution or March 1, 2005, whichever is later [the contract was executed on or around March 14, 2005], and end on February 28 or 29, 2007 unless extended, terminated, or renewed as specified elsewhere in this contract.

Thus, this was a full two-year contract encompassing more than just the “regular football season” in each of those two years. Hence, in spite of the fact that the claimant was injured on July 30, 2005, prior to the commencement of the regular football season, the contract by its clear and unambiguous terms had been in effect for several months. Included in her written reasons for judgment, the workers’ compensation judge found that the claimant was not a seasonal employee, citing Hayes v. Voodoo Football, Inc., 07-1037 (La.App. 5 Cir. 4/29/08), 985 So.2d 259. We agree.

However, the workers’ compensation judge also found that the “contractual terms of payment of wages for Claimant Shadley Meier does not fit into any category specified under the Louisiana Workers’ Compensation Act.” We disagree. We find that the claimant’s contractual terms of payment fall into the category of “annual wages” as defined by La. R.S. 23:1021(10)(c) as follows:

Annual wages. If the employee is employed at an annual salary, his annual salary divided by fifty-two.

Therefore, in making the average weekly wage calculation, what he earned during the season must be averaged out over the year. This is supported by the fact that the contract specifies that its term encompasses the entire two year period and not just the “regular seasons” included within those two years. Paragraph “5” of the contract calls for the payment of a “yearly salary” of $540,000.00 for the 2005 season and $575,000.00 for the 2006 season. Additionally, the contract imposes certain duties upon the claimant and places certain restrictions on the claimant for | r,the duration of the contract term, not just during the course of the regular season. Paragraph “6” of the contract also refers to his “yearly salary” rather than a seasonal salary, notwithstanding the fact that the “yearly salary” was to be paid “in equal weekly or biweekly installments over the course of the applicable regular season period.” Therefore, the claimant was injured during the contract period in 2005 which calls for a “yearly”, i.e., annual salary of $540,000.00 along with smaller additional payments for participating in such activities as training camps. The claimant has never graduated from college and has found no gainful employment providing him with substantial earnings. We can safely assume that claimant will not be able to earn anywhere approaching 90% of his Saints compensation in the foreseeable future. Thus, he qualifies for Supplemental Earnings Benefits pursuant to La. R.S. 23:1221(3). La. R.S. 23:1221(3) provides for payments of “sixty-six and two-thirds percent of the difference between” what the employee was earning before he was injured and what he is able to earn after injury subject to a maximum limitation. The defendants do not contend otherwise. Accordingly, we conclude that the claimant is entitled to the maximum compensation rate for Supplemental Earnings Benefits of $454.00/ week for 75 weeks, for a total of $34,050.00.

The workers’ compensation judge found that Mr. Meier’s earnings for the 2005 season were $549,242.47. This figure excludes a number of items, such as the claimant’s $350,000.00. The claimant does not contest the exclusion of any of the compensation items excluded by the workers’ compensation judge with but one exception — in his brief to this court the claimant contest the exclusion of only the $4,721.34 earned by the claimant at mini-camp. The claimant says that his average weekly wage should be calculated by adding that amount to the $549,242.47 figure | (¡arrived at by the trial court, bringing the total to $553,963.81 for purposes of computing his average weekly wage. Thus, the claimant contends that his average weekly wage should be $10,653.15. When the claimant refers to the $4,721.34 mini-camp earnings, we must assume that he meant to say $471.43 instead, which is the figure he gives for mini-camp pay elsewhere in his brief. The $471.43 figure is the only mini-camp figure supported by the payroll records and is much closer to the $471.13 figure referred to by the workers’ compensation judge. When that figure is added to the undisputed amount of $549,242.47, it brings the total to $549,713.90, which we hold is the figure that should be used in computing claimant’s average weekly wage according to his own reasoning. This would produce an average weekly wage of $10,571.42.

Based on the foregoing, we find that the claimant injured his knee in the course and scope of his employment in 2005 as is uncontested and he sustained no second injury in 2006. All of his subsequent disability is attributable to the 2005 injury which appears to have gotten progressively worse as time went on. We conclude as a result thereof that the claimant is entitled to supplemental earnings benefits at the maximum rate of $454.00/week for 75 weeks, for a total of $34,050.00.

For the foregoing reasons, we reverse the judgment of the workers’ compensation judge and render judgment in favor of the claimant in the sum of $34,050.00. The defendants shall bear all costs of this appeal.

REVERSED AND RENDERED.

ORDER ON REMAND ON REHEARING GRANTED

11 Considering the application for rehearing filed on behalf of the plaintiff-appellee, Shadley Meier,

This Court grants rehearing for the limited purpose of amending its previous decree to Order that the case be remanded to the trial court to determine whether the plaintiff-appellee is entitled to more than seventy-five weeks of supplemental earnings benefits, and, if so, how many more weeks.

In all other respects, including the finding that the plaintiff-appellee is entitled to supplemental earnings benefits at a rate of $454.00 per week, the previous judgment of this Court rendered in March 12, 2009, is hereby affirmed.

/s/ Joan Bernard Armstrong

Chief Judge Joan Bernard Armstrong

/s/ Patricia Rivet Murray

Judge Patricia Rivet Murray

/s/ Paul A. Bonin

Judge Paul A. Bonin

      . We must assume that the "1” in the $471.13 figure referred to by the workers’ compensation judge is a typographical error and that it was intended to be a “4” making the proper figure "471.43” in accordance with the payroll records and the post-trial brief of the defendants as well as references elsewhere in the claimant's brief to this Court.


author:
GASKINS, J.
      CARAWAY, J.,

text:
    Janie Catherine Raley BERGERON, Plaintiff-Appellant v. James Ronald BERGERON, Jr., Defendant-Appellee.
    No. 44,210-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 18, 2009.

      Gary A. Bowers, for Appellant.
    Jones, Odom, Davis & Politz, L.L.P., by Nyle A. Politz, Shreveport, for Appellee.
    Before BROWN, GASKINS, CARAWAY, MOORE and LOLLEY, JJ.
   GASKINS, J.

_JjThe plaintiff, Janie Catherine Raley Bergeron, appealed from a trial court judgment which set permanent child support, modified the prior joint custody implementation plan, and reversed the plaintiffs decision to place the parties’ two children in a different school. The defendant, James Ronald Bergeron, Jr., answered the appeal, claiming that the trial court improperly ruled that his final child support obligation would be increased retroactively to May 21, 2007, the date of filing of the rule for an increase, rather than the date of the July 2008 trial court judgment. For the following reasons, we affirm in part, and amend in part, the trial court judgment.

FACTS

The plaintiff and defendant were married in 1992. They have two daughters, Ashley born in 1998, and Audrey born in 2000. In July 2004, the plaintiff filed for divorce. In September 2004, an interim judgment was rendered in open court awarding joint custody and ordering the defendant to pay $1,380.00 per month in child support.

In November 2004, a joint custody implementation plan was approved by the trial court and filed into the record. The plan specified that the plaintiff is the domiciliary parent. The plan included a complicated system of shared custody whereby the defendant had the children from Friday afternoon to Tuesday morning; the plaintiff had them from Tuesday afternoon until the following Monday morning. The defendant then picked the children up from school on Monday afternoon and kept them until Wednesday. The plaintiff had them from Wednesday afternoon until Friday morning. The plan would then repeat. Under this plan, the plaintiff had the | .¿children 57 percent of the time and the defendant had them 43 percent of the time.

A judgment of divorce was entered on February 16, 2005. The plaintiff reverted to the use of her maiden name.

On May 21, 2007, Ms. Raley filed a rule to modify the child custody order and to set final child support. She contended that material changes in circumstances required a modification of the custody order. She argued that the prior custody arrangement was disruptive for the children. She also made numerous allegations claiming that Mr. Bergeron did not properly care for the children. Ms. Raley sought to have the children live with her during the school year, with visitation for the father every other weekend. According to Ms. Raley, Mr. Bergeron had taken a job in the construction industry which required him to be in Las Vegas, Nevada, much of the time.

The children attended St. Joseph School. Ms. Raley had taken measures to switch the girls to First Baptist Church School, contending it had better programs and resources. On April 22, 2008, Mr. Berger-on filed a rule to show cause why an order should not be entered prohibiting Ms. Ra-ley from enrolling the children in First Baptist Church School.

The rules were heard by the trial court in May and June 2008. On July 29, 2008, the trial court signed and filed a judgment specifying that the parties are to continue with joint custody, subject to the amended joint custody implementation plan executed with the judgment. In the amended joint custody implementation plan, the court ordered that the mother |scontinue as domiciliary parent, but the children were to stay with the mother one week and the father the next week.

Mr. Bergeron was ordered to pay final child support in the amount of $1,126.08, retroactive to May 21, 2007, and subject to credit for sums paid. The trial court overruled the decision of Ms. Raley to send the children to First Baptist Church School and ordered that they be readmitted to St. Joseph School.

In the reasons for judgment, the trial court discussed the history of child support prior to the instant rale to set final support. The court noted that the prior order specified that Ms. Raley had the children 57 percent of the time and Mr. Bergeron had them 43 percent of the time. In the prior order, interim child support had been set at $1,380.00 and the parties had agreed that they were not precluded from having the court determine the correct amount of permanent child support at a later date. The issue of final support had been discussed between the parties and the court noted that letters between the parties’ counsel showed that the trial court was considering setting the final child support award at $750.00 per month. Since late in 2004, Mr. Bergeron had paid and Ms. Ra-ley had accepted $750.00 per month in interim child support. The court found that the parties agreed that $750.00 per month was the amount of monthly child support due until further proceedings.

The evidence showed that Mr. Bergeron had a better job and now earns a higher income. The court found that Worksheet B under La. R.S. 9:315.9 and 9:315.20 was applicable. The trial court set the final child ^support obligation due from Mr. Bergeron at $1,126.08, retroactive to May 21, 2007, the date of the filing of the instant rule.

The court considered the mental health evaluations that were conducted on the parties and concluded that both were good parents and that both agreed that the former custody implementation plan was not in the best interest of the children. The court found that it would be better for the children for the parties to have shared custody, with the children spending alternating weeks with each parent.

The court determined that the children should remain at St. Joseph School. It noted that Ms. Raley had not consulted with Mr. Bergeron in her plan to switch the children to a new school and that there was no showing that a hew school would provide more for the children at this time.

Ms. Raley appealed the trial court judgment and Mr. Bergeron answered the appeal.

COMPROMISE OF CHILD SUPPORT OBLIGATION

Ms. Raley argues that the trial court erred in concluding that the parties somehow compromised the interim child support obligation of Mr. Bergeron. Ms. Ra-ley contends that the trial court was wrongly persuaded to believe that the parties agreed that the interim child support amount would be $750.00 per month. She points to numerous letters between the parties’ counsel showing that they were not in agreement as to the child support amount. This argument is without merit.

Legal Principles

A trial court’s finding of fact will not be disturbed unless the record establishes that a factual, reasonable basis does not exist and the finding is clearly wrong or manifestly erroneous. Under the manifest error standard of review, the only issue to be resolved by the appellate court is whether the trial court’s conclusion was a reasonable one. Heflin v. Heflin, 44,155 (La.App. 2d Cir. 1/14/09), 1 So.3d 820.

In the area of domestic relations, much discretion must be vested in the trial judge and particularly in evaluating the weight of evidence which is to be resolved primarily on the basis of credibility of witnesses. The trial judge having observed the demeanor of the witnesses is in the better position to rule on their credibility. Mizell v. Mizell, 37,004 (La.App. 2d Cir.3/7/03), 839 So.2d 1222.

The general rule in Louisiana is that an alimony or child support judgment remains in effect until the party liable has it modified or terminated by the court. See Halcomb v. Halcomb, 352 So.2d 1013 (La.1977); Mizell v. Mizell, supra. The policy reason behind this rule is obvious. The law does not want to encourage those owing alimony or child support to become involved in “self-help” by making their own determinations as to when they have satisfied their alimony or child support obligations by some method other than payment in accordance with the court order. Mizell v. Mizell, supra. There is an exception to this general rule when the evidence shows that the parties have clearly agreed to waive or otherwise modify the court-ordered payments. Mere acquiescence in the IfiObligor’s failure to pay the full amount of support is not a waiver. Mizell v. Mizell, supra; McDaniel v. McDaniel, 2003-1763 (La.App. 3d Cir.5/19/04), 878 So.2d 686. However, courts of this state have long held that child support payments may be suspended by implied agreement. See Heflin v. Heflin, supra. The burden of proof of the existence of the agreement is on the party seeking to modify his obligation under the judgment. Mizell v. Mizell, supra. See also Dubroc v. Dubroc, 388 So.2d 377 (La.1980). See and compare Davis v. Davis, 43,490 (La.App. 2d Cir.10/22/08), 997 So.2d 149; Scott v. Scott, 43,455 (La.App. 2d Cir.8/13/08), 989 So.2d 290; Heflin v. Heflin, supra.

Discussion

In September 2004, the trial court ordered the amount of interim child support due from Mr. Bergeron to be $1,380.00 per month. According to Ms. Raley, from September 20, 2004, until November 2004, Mr. Bergeron paid child support in the amount of $1,380.00 per month. Beginning in December 2004, he paid $750.00 per month in interim child support. In its reasons for judgment, the trial court noted that, after the order of the interim child support amount, there was a status conference, with the trial court judge presiding over the case at the time, wherein he indicated that the final child support figure would be $750.00 per month. In a letter dated January 21, 2005, addressed to Mr. Bergeron’s counsel, Ms. Raley’s attorney stated that he had explained to Ms. Raley that the trial court was not inclined to award as final child support the full amount arrived at under worksheet calculations because Mr. Bergeron had the children 43 percent of |7the time. The amount of $750.00 was intended to reimburse Ms. Raley for the time the children were with her. Ms. Raley’s counsel stated that his client was resigned to that amount.

Letters from March 4-17, 2005 indicate that Mr. Bergeron proposed a lesser amount for final child support. A letter dated March 24, 2005, from Mr. Berger-on’s attorney to Ms. Raley's counsel stated that Mr. Bergeron had agreed to the amount of $750.00. The record shows that while the interim child support order was in effect, Mr. Bergeron actually paid, and Ms. Raley accepted, $750.00 per month. Subsequent letters filed into the record show that the parties continued to negotiate on the amount of final child support. However, there is no dispute that Ms. Raley accepted the amount of $750.00 per month.

In Mr. Bergeron’s answer to Ms. Raley’s rule to show cause, he alleges that, following the setting of interim child support at $1,380.00 per month, a post-trial status conference was held with the court and counsel of record on November 24, 2004. According to Mr. Bergeron, the court indicated that the final child support figure would not be based on a worksheet calculation, but would fall between $600.00 and $900.00 per month. Mr. Bergeron contends that Ms. Raley proposed the figure of $750.00 per month. He stated that he accepted that figure and has been paying that amount since 2004. However, the record is clear that a final child support judgment for the amount of $750.00 was never signed by the trial court. One goal of the present rule filed by Ms. Raley was to set final child support.

RBased upon this record, we affirm the trial court’s determination that the parties agreed that $750.00 was the amount of child support to be paid until further proceedings. Both parties clearly understood that a final child support judgment had not been rendered. In fact, Ms. Raley’s petition requests the setting of final support. Consequently, we find the $750.00 child support was an interim award agreed to by the parties.

CHILD SUPPORT CALCULATION AND RETROACTIVITY OF AWARD

The trial court ordered that the final child support amount to be paid by Mr. Bergeron is $1,126.08 per month, retroactive to May 21, 2007, the date of the filing of the present rule by Ms. Raley.

Mr. Bergeron answered the appeal arguing that the increased child support award should apply prospectively only.

Legal Principles

Regarding interim allowances and final child support awards, La. C.C. art. 141 states:

In a proceeding for divorce or thereafter, the court may order either or both of the parents to provide an interim allowance or final support for a child based on the needs of the child and the ability of the parents to provide support. The court may award an interim allowance only when a demand for final support is pending.

The retroactivity or prospective application of child support awards is governed by La. R.S. 9:315.21, which provides in pertinent part:

A. Except for good cause shown, a judgment awarding, modifying, or revoking an interim child support allowance shall be retroactive to the date of judicial demand, but in no case prior to the date of judicial demand.
|3B. (1) A judgment that initially awards or denies final child support is effective as of the date the judgment is signed and terminates an interim child support allowance as of that date.
(2) If an interim child support allowance award is not in effect on the date of the judgment awarding final child support, the judgment shall be retroactive to the date of judicial demand, except for good cause shown, but in no case prior to the date of judicial demand.
C. Except for good cause shown, a judgment modifying or revoking a final child support judgment shall be retroactive to the date of judicial demand, but in no case prior to the date of judicial demand.
E. In the event that the court finds good cause for not making the award retroactive to the date of judicial demand, the court may fix the date on which the award shall commence, but in no case shall this date be a date prior to the date of judicial demand.

Section A of La. R.S. 9:315.21 mandates that, except where good cause is demonstrated, a judgment awarding, modifying or revoking an interim child support allowance must be retroactive to the date of demand for the same. Correspondingly, Subsection B(l) of La. R.S. 9:315.21 provides that, thereafter, a judgment that awards or denies final child support takes effect the date the judgment is signed and terminates an interim child support allowance as of that date. Moran v. Moran, 2002-1562 (La.App. 1st Cir.6/27/03), 858 So.2d 581, writ denied, 2003-2124 (La.11/7/03), 857 So.2d 502.

Under these provisions, where the trial court makes a final child support award and where an interim child support award is in effect on the date of the judgment, the judgment should not be made retroactive. See 10Martin v. Martin, 1998-165 (La.App. 3d Cir.6/3/98), 716 So.2d 46; Moran v. Moran, supra.

Discussion

There was an interim child support award in place in this matter. Therefore, under La. R.S. 9:315.21, the final child support award in the present case, $1,126.08 per month, applies prospectively from the date of the signing of the judgment, July 29, 2008. The parties have not disputed the gross amount of income applicable at the time of the trial court’s calculation of the final child support award. We affirm that portion of the trial court judgment setting final child support at $1,126.08 per month. However, we amend the trial court judgment to provide that the award applies from the date of the signing of the judgment, July 29, 2008.

CHILD CUSTODY IMPLEMENTATION PLAN

Ms. Raley filed suit to change the existing joint custody implementation plan which both parties acknowledge was confusing and not in the best interest of the children. She sought to have the court order a more conventional child custody arrangement whereby she would have the children during the school year, with visitation for Mr. Bergeron every other weekend. Ms. Raley provided an extensive list of reasons she felt warranted limiting Mr. Bergeron’s time with the children. The trial court in this case ordered that the parties share physical custody of the children with the girls living in each parent’s household on alternating weeks. Ms. Ra-ley argues that the trial court erred in implementing a shared custody arrangement | uparticulaxly where Mr. Bergeron had not sought such an arrangement. This argument is without merit.

Legal Principles

La. C.C. art. 131 provides that in a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interest of the child. La. C.C. art. 132 states that if the parents agree who is to have custody, the court shall award custody in accordance with their agreement unless the best interest of the child requires a different award. In the absence of agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly; however, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent.

In determining the best interests of the child in custody cases, there must be a weighing and balancing of factors favoring or opposing custody in respective competing parents on the basis of evidence presented in each particular case. Hoskins v. Hoskins, 36,031 (La.App. 2d Cir.4/5/02), 814 So.2d 773.

The factors to be considered by a court in awarding custody of children are set forth in La. C.C. art. 134:

The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
|1⅞(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

The court is not bound to make a mechanical evaluation of all the statutory factors listed in La. C.C. art. 134, but should decide each case on its own facts in light of those factors. The court is not bound to give more weight to one factor over another, and when determining the best interest of the child, the factors must be weighed and balanced in view of the evidence | ^presented. Hoskins v. Hoskins, supra. Moreover, the factors are not exclusive, but are provided as a guide to the court, and the relative weight given to each factor is left to the much discretion of the trial court. Hoskins v. Hoskins, supra.

To the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally. La. R.S. 9:335(A)(2)(b). The trial court’s decision in child custody matters is entitled to great weight and it will not be overturned absent a showing of manifest abuse of discretion. Washkow v. Washkow, 33,965 (La.App. 2d Cir.8/23/00), 765 So.2d 1210.

Discussion

In imposing an amended joint custody implementation plan, the trial court considered the testimony of the parties, people who knew them, and the opinions of mental health professionals. Ms. Raley testified that the original visitation plan has been chaotic. She sought to have the girls live with her during the school year, with visitation for Mr. Bergeron. She claims that Mr. Bergeron is not good with the girls and sends the girls’ clothes home dirty. She claims that Mr. Bergeron thinks that daily bathing is bad for the children’s skin and that they smell when they come home after staying with him. Ms. Raley described an incident in January 2005 when temperatures were below freezing and Mr. Bergeron did not dress the children warmly enough. She claims that Mr. Bergeron does not help with homework and she has to help them catch up when they return to her household. Ms. Raley stated that the children exhibited behavior problems |14after returning from Mr. Bergeron’s house and she sought advice and counseling for the children from Dr. Susan Vigen, a child psychologist.

John Raley, Ms. Raley’s brother, testified that his sister is a good mother. He stated that there have been problems with Audrey throwing up when it was time to go to Mr. Bergeron’s home.

Michael Labban, Ms. Raley’s boyfriend, testified that he has observed the girls to be dirty and smelly when they returned from staying with Mr. Bergeron. Mr. Labban, who has no children living at home, stated that he remodeled his house so that each of Ms. Raley’s children would have a separate bedroom. Ms. Raley and the girls frequently stay with Mr. Labban at his house.

Mr. Bergeron testified that he is a self-employed consultant in the construction industry. The parties had lived in Dallas, Texas, and moved to Shreveport in June 2008. Mr. Bergeron’s parents live in Shreveport. Mr. Bergeron stated that the parties physically sepai’ated on July 21, 2004.

Mr. Bergeron said that the majority of the time, he can schedule his work travel to accommodate having his children. He testified that he has been a member of the parent-teacher organization at St. Joseph School since 2005. He has helped with a pancake breakfast, family fun night, field days, and teacher appreciation day. He also attends pep rallies. He said that he schedules play dates for the children and frequently takes them to activities in the community such as shows and skating. Monday nights are spent dining with Mr. Bergeron’s parents. When the girls stay with him, he takes them to church. Mr. Bergeron stated that when the girls are with him, they 11shave a snack after school and then do homework. Mr. Bergeron objected to the children staying overnight with Ms. Raley and Mr. Labban at Mr. Labban’s residence.

Upon the motion of Ms. Raley, the trial court appointed Dr. Richard Williams, a psychiatrist, to examine the mental health of both parties. Dr. Williams testified at trial and was accepted as an expert in psychiatry. In addition to his testimony, a written report by Dr. Williams was filed into the record. He stated that he talked to both parties in this matter and reviewed the reports of Dr. Vigen. He also interviewed people who knew both parties and reviewed e-mails and correspondence between the parties concerning the children. Both parties stated that they informed Dr. Williams of their concerns and complaints about the other parent.

Dr. Williams noted that Mr. Bergeron takes medication for depression and for attention deficit disorder. He also considered that the parties had attended joint counseling sessions during the marriage. Mr. Bergeron had undergone counseling with a psychologist after the breakup of the marriage. Mr. Bergeron’s psychological testing was normal. Dr. Williams termed him an extrovert with no depression and no evidence of a character defect. Dr. Williams noted that Mr. Bergeron has had an active and important role in caring for his daughters; he participates in school, health care, and outside activities.

Dr. Williams found that Ms. Raley’s psychological testing showed that it was completed in a defensive manner and that she portrayed herself as scrupulous and highly moral.

| Recording to Dr. Williams, both parties are good parents and can provide safety to the children. He found no significant psychopathology for either parent. He noted that under the prior custody arrangement, Mr. Bergeron asked to change his time for custody more than Ms. Raley due to traveling for his job.

According to Dr. Williams, neither Mr. Bergeron nor Ms. Raley believes that the children are in danger of neglect from being with the other parent. Dr. Williams observed that the children are functioning well in the school and home environment, but the original joint custody implementation plan did not provide a great deal of consistency from week to week and did not allow the girls to have an entire week in one home. Dr. Williams opined that this would be improved by the girls spending one week with Mr. Bergeron and one week with Ms. Raley, beginning Friday afternoon after school until the following Friday morning when dropped off for school.

A report filed into the record by Dr. Vigen concluded that, “Having the girls live primarily in one home during each week of the school year would allow one parent to take on the primary responsibility of supervising and monitoring the children’s academic progress; this might provide for more accuracy and consistency.”

Although each parent has complaints about the other, Dr. Williams found both parties to be good parents. He found that the children would benefit from living in each parent’s home on alternating weeks. The trial court was not manifestly erroneous in finding that the best interest of the 117children would be served by implementing such a shared custody plan. Accordingly, we affirm the trial court judgment in this regard.

DESIGNATION OF SCHOOL

Ms. Raley maintains that, as domiciliary parent, under La. R.S. 9:335(B)(3), she had the right to choose where the children would attend school. Although the children had always gone to St. Joseph School, she determined that its academic program was inferior to First Baptist Church School which offered accelerated programs for gifted and talented children. She also claims that she presented sufficient evidence to show that First Baptist Church School would be a superior environment for the children. Ms. Raley claims that Mr. Bergeron failed to carry his burden of proving that enrollment in First Baptist Church School would not be in the best interest of the children. This argument is without merit.

Legal Principles

When parties are awarded joint custody, the court shall designate a domiciliary parent unless the implementation order provides otherwise or for other good cause shown. La. R.S. 9:335(B)(1). The domiciliary parent is the parent with whom the child primarily resides. La. R.S. 9:335(B)(2). Shaw v. Shaw, 30,613 (La.App. 2d Cir.6/24/98), 714 So.2d 906, writs denied, 1998-2414 (La.11/20/98), 729 So.2d 556, 1998-2426 (La.11/20/98), 729 So.2d 558.

The domiciliary parent shall have authority to make all decisions affecting the child unless an implementation order provides otherwise. All major decisions made by the domiciliary parent, which would include the |1schoice of schools, are subject to judicial review upon motion by the non-domiciliary parent. In the judicial review, it is presumed that all major decisions made by the domiciliary parent are in the best interest of the child and the burden of proving they are in fact not in the best interest of the child is placed on the non-domiciliary parent who opposes the decision. La. R.S. 9:335(B)(3); Shaw v. Shaw, supra; Walden v. Walden, 2000-2911 (La.App. 1st Cir.8/14/02), 835 So.2d 513; Schmidt v. Schmidt, 02-885 (La.App. 5th Cir.1/14/03), 839 So.2d 150.

Discussion

In this case, Ms. Raley was designated as the domiciliary parent. She had the right to make a decision regarding the children’s school, subject to judicial review upon the motion made by Mr. Bergeron.

Ms. Raley testified that Ashley needs more of a challenge in school and Audrey needs more help with reading. Ms. Raley considered numerous private schools and had the children tested for the Caddo Parish magnet school program. The children passed the tests for magnet school, but the Caddo Parish School system did not have two slots for the girls at the same school. After investigating numerous other possibilities, Ms. Raley concluded that First Baptist Church School would be the best environment for the children. She cited the low student/teacher ratio, the presence of smart boards and computers in all classrooms, and the ability to earn high school credit for French, algebra, and computer science. Ms. Raley contended that there was no comparable program at St. Joseph School. She also pointed out that First Baptist Church School participates in the Duke | ^University talent search and offers more physical education and enrichment classes.

Mr. Bergeron and his parents currently pay the tuition for the children to attend St. Joseph School, which is not calculated into the support award. The parties pay their proportionate share of related expenses such as lunch fees. Ms. Raley stated that if Mr. Bergeron was not willing to pay for tuition at First Baptist Church School, she would pay for this expense. When asked how she intended to do so, Ms. Raley, who is starting a new business and has a very low income presently, stated that her brother would help pay the tuition. Mr. Raley, who testified at trial on behalf of his sister, was asked about his ability to pay for private school tuition for Ms. Raley’s children. Mr. Raley stated that he gives his sister several hundred dollars each month, depending on what she needs. When asked about the cost of tuition at First Baptist Church School, Mr. Raley stated that he would give what he could for private school tuition, but was not prepared to triple his monthly contribution to his sister.

Mr. Bergeron testified that Ms. Raley did not discuss with him the plans to change the girls to another school. He stated that he is Catholic and Ms. Raley formerly was of the same faith. He deemed it important to have the children educated in a Catholic school. The girls’ report cards were introduced which showed that both children were doing well in school. One of the girls participated in an enrichment group. St. Joseph School offers the opportunity to earn high school credit in Spanish and algebra.

IgpMr. Bergeron called Susan Belanger, principal of St. Joseph School, to testify. Ms. Belanger stated that both children are happy and well-adjusted. St. Joseph School has been in operation for more than 58 years and has computers in the classrooms. A project is underway to obtain smart boards for all classrooms. A student from the school was recently a participant in the National Spelling Bee. The school placed first at the Loyola Academic Rally. The school is active in the Louisiana Regional Science and Engineering Fair. The class size is approximately 25 students.

The trial court found that the children are functioning well at St. Joseph School. The court recognized the presumption that Ms. Raley’s decision regarding school placement is in the best interest of the children. The court also noted that the original decision to send the children to St. Joseph School was made by both parents and was incorporated into the original joint custody implementation plan. That plan also required the parties to exchange information with reference to the children’s education. Ms. Raley made the decision to change schools with no input from Mr. Bergeron. The trial court found that the evidence did not establish that another school would provide more for the children at this time. The court noted that St. Joseph School is the only school that these small children have ever attended and stability should be maintained in children’s lives wherever possible. The trial court found that the totality of the evidence supports the conclusion that moving to a different school would not be in the best interest of the children.

_J_2jBased upon this record, we find that the trial court did not abuse its discretion in ruling that the children should remain at St. Joseph School. The evidence shows that both schools have outstanding academic programs and offer numerous excellent opportunities for students. The evidence failed to show that First Baptist Church School was significantly better for the needs of these particular children who are doing well in their current environment. Given the fact that the grandparents are willing to contribute to the costs of their education at St. Joseph School, and the fact that the girls have always attended the school and have done well there, Mr. Bergeron carried his burden of proving that a change of schools at this time is not in the best interest of the children.

CONCLUSION

For the reasons stated above, we affirm the trial court ruling that the parties compromised the amount of the interim child support award due from Mr. Bergeron to provide that his obligation was $750.00 per month. We affirm the trial court judgment changing the joint custody implementation plan to specify that Ms. Raley will remain the domiciliary parent, but the children will spend alternating weeks with each parent. We also affirm that portion of the trial court judgment ordering that the children continue their education at St. Joseph School. We affirm that portion of the trial court judgment specifying that Mr. Bergeron’s permanent child support obligation is $1,126.08 per month. However, we amend the judgment to ^specify that the final child support award is due from the date of signing of the judgment, July 29, 2008. Costs in this court are assessed to Ms. Raley.

AFFIRMED IN PART; AMENDED IN PART; AFFIRMED AS AMENDED.

CARAWAY, J., concurring in part and dissenting in part, with written reasons.

CARAWAY, J.,

concurring in part and dissenting in part.

Ill respectfully dissent in part for the following reasons. There are three cited rules in this case with clear directives which have as their underlying purpose the avoidance of the hostilities and prolonged litigation that too often inflict our family law controversies. The first rule cited by the majority is to insure that the parent owing child support under a judicially approved plan or judgment continues to pay that obligation until modified by a further court order. The sanctioning of the child support obligation by the court in the first place is for the benefit of the children. “Children should not be the economic victims of divorce.” La. R.S. 9:315(A). Therefore, the parents’ “self-help” modification efforts thereafter through side “agreements” should in my opinion always be ineffective until the trial court, with its obligation to insure the protection of the children, affirms such modification of the existing support judgment by a consent judgment. Instead of such a bright line rule, our courts continue to entertain expensive litigation with the “he-said, she-said” hearings over these parental side agreements.

The second rule now violated by the majority is a statute, La. R.S. 9:315.21. The majority misunderstands this statute. Subpart A of the statute identifies the statute’s application for settings involving “a judgment awarding ... an interim child support allowance.” After the majority honors the parties’ side agreement for $750/month child support, thereby finding no existing “judgment awarding” that child support obligation, it reverses the trial court by ignoring the following rule of La. R.S. 9:315.21(B)(2):

| gIf an interim child support allowance award is not in effect on the date of the judgment awarding final child support, the judgment shall be retroactive to the date of judicial demand, except for good cause shown, but in no case prior to the date of judicial demand.

When plaintiff filed her rule for final child support, there was no existing “judgment awarding interim child support” in effect, only the parties’ side agreement. Therefore, once the side agreement was recognized by the trial court and affirmed by the majority, the trial court’s retroactive award of the increase support from $750 to $1126.08 was the correct application of the statute.

The final rule is also embodied in a statute in favor of the domiciliary parent’s authority to make decisions for the child. La. R.S. 9:355(B). The statute is clear that a heavy evidentiary burden is placed on the non-domiciliary parent to overcome a legal presumption that the domiciliary parent’s decisions are made in the best interest of the children. Here, the domiciliary parent made a decision between two private schools for the elementary education of her two daughters. One might first debate under the statute just how “major” a decision this was. Nevertheless, after numerous witnesses and court time, this major decision was litigated and appealed, with the majority now concluding “that both schools have outstanding academic programs.” The decision therefore of the domiciliary parent should have easily prevailed and arguably never been litigated in the first place. Yet, the result now reached, second guessing the domiciliary parent and blurring another bright line rule, will no doubt continue to foster family disputes over such matters.

      . The record shows that in his answer to Ms. Raley’s rule to modify the child custody implementation plan, Mr. Bergeron specifically points out that the mental health professional appointed by the court recommended a modification to allow the children to stay with each parent on alternating weeks.


text:
    Gary SMITH v. DRESSER INDUSTRIES.
    No. 08-1218.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.
    Jay A. Pucheu, Marksville, Louisiana, for Plaintiff/Appellant, Gary Smith.
    Mark A. Watson Stafford, Stewart & Potter, Alexandria, Louisiana, for Defendant/Appellee, Dresser Industries, Inc.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

_JjIn this workers’ compensation suit, Gary Smith, claimant, appeals a judgment of the workers’ compensation judge (WCJ) in favor of Defendant, Dresser Industries, Inc. (Dresser), denying Mr. Smith’s claim for permanent and total disability benefits. For the following reasons, we affirm.

FACTS

While employed by Dresser, Mr. Smith sustained an injury on February 9, 1996. Relative to Mr. Smith’s injury and subsequent treatment, the parties entered several stipulations into the record. The parties were in agreement that Mr. Smith was injured in the course and scope of his employment with Dresser on February 9, 1996, and, as a result thereof, he underwent a lumbar microdiscectomy at L4-5 on February 10, 1997. It was also stipulated that, on September 3, 1998, Mr. Smith underwent a laminectomy from L-3 through S-l, a foraminotomy bilaterally at L-3, L-4, and L-5, and a disc removal at L4-5. The parties further agreed that these surgeries were all causally related to the original work-related injury of February 9, 1996. The parties also stipulated that Mr. Smith had been paid indemnity benefits through May 13, 2007, at the applicable maximum rate of $830.00 per week, based upon an average weekly wage of $632.00. Finally, the parties agreed that Mr. Smith’s medical benefits were continuing to be paid through the date of trial.

As a result of the termination of his supplemental earnings benefits (SEB) on November 14, 2006, Mr. Smith filed a Disputed Claim for Compensation (Form 1008) on January 30, 2007, alleging that the termination of his SEB was arbitrary and capricious. Mr. Smith sought back pay, interest, penalties, and attorney fees. He | .¿amended his Form 1008 to additionally assert that the termination of his indemnity benefits was arbitrary and capricious due to his permanent and total disability (PTD) status. A subsequent amendment by Mr. Smith sought penalties and attorney fees for an alleged inadequate payment of SEB by Dresser. Mr. Smith also sought payment for the travel expenses he incurred in connection with a functional capacity evaluation (FCE).

Following trial on April 23, 2008, the WCJ denied Mr. Smith’s demand for continued SEB, denied his claim for PTD benefits, and found that his SEB had not been improperly calculated. The WCJ found in favor of Mr. Smith on his claim that the travel expenses relating to the FCE were paid untimely and awarded him penalties and attorney fees. A judgment in accordance therewith was signed on June 17, 2008. It is from this judgment that Mr. Smith appeals.

ISSUES

Mr. Smith presents the following issues for our review:

1.[Where] there were objective signs of ongoing injury, no indication of malingering, no testimony that any of plaintiffs alleged capacities translate into the ability to earn money in the work place[,] and where plaintiffs treating physician opined that he was permanently restricted from all types of employment, [did] the trial court commit[ ] manifest error and abuse[ ] its discretion in failing to find that plaintiff was permanently and totally disabled[?]
2. [Was] the trial court ... manifestly erroneous in its application of existing law when it denied plaintiff permanent and total disability status because his inability to work was in part based upon pain caused by work activities due to his documented physical problems[?]
3. If the trial court is reversed, [what] amount of penalties and attorney’s fees [are] to be awarded[?]

LAW AND DISCUSSION

Standard of Review

The WCJ’s denial of Mr. Smith’s claim of PTD status is a factual [..¡determination which is subject to the manifest error or clearly wrong standard of review. Johnson v. E. Baton Rouge Parish Sch. Bd., 06-1010 (La.App. 1 Cir. 3/28/07), 961 So.2d 388. Therefore, the WCJ’s judgment on this issue is to be given great weight by this court and will not be overturned unless this factual determination is clearly wrong.

Permanent and Total Disability Status

Mr. Smith asserts on appeal that, based upon the evidence, the trial court was manifestly erroneous in concluding that he failed to establish PTD status. His focus on appeal is that he was erroneously denied PTD status “because his inability to work was in part based upon pain caused by work activities due to his documented objective physical problems.” In response, Dresser asserts, in brief: “As Judge Braddock correctly concluded, the evidence established that the only impediment to Mr. Smith’s ability to perform work was his complaints of pain; and, as indicated by the statute, pain is not a permissible basis for the awarding of permanent total disability benefits.” We agree with Dresser.

Louisiana Revised Statutes 23:1221

Louisiana Revised Statutes 23:1221(2)(c) (emphasis added) provides for PTD benefits for an injured worker if the following standard is met:

For purposes of Subparagraph (2)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subpar-agraph (2)(b) of this Paragraph, compensation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.

Mindful of Mr. Smith’s burden of proving by clear and convincing evidence that he |4is unable to engage in employment, notwithstanding complaints of pain, we consider the testimony and exhibits introduced at trial.

Testimony of Mr. Smith

Mr. Smith testified that he suffers pain on a daily basis. Although he admitted that he is able to perform certain activities around his home, such as cutting his grass, it was his testimony that such activity exacerbates his pain. According to Mr. Smith, he does not do anything “real strenuous,” and[,] on his “bad days[,]” he “sit[s] around and take[s] it easy.” It was his testimony that he only obtains relief when he lays down or sits in a lounge chair.

Report of Dr. Rayland K. Beurlot

Dr. Rayland K. Beurlot performed an independent medical examination (IME) on Mr. Smith on April 10, 2007, and his report issued in connection therewith was introduced into evidence. Dr. Beurlot’s diagnosis of Mr. Smith was “lumbar radi-culopathy.” It is noteworthy that when addressing Mr. Smith’s ability to work, Dr. Beurlot did not have the benefit of the FCE, which he felt would have been “somewhat useful.” However, in response to the inquiry relative to Mr. Smith’s ability to work, Dr. Beurlot’s report contains the following response:

He might be able to return to some light or sedentary activity, but there would be significant restrictions concerning the actual amount of material weight handled, range of motion such as bending over, squatting, stooping, etc. He would do better at a job which requires a frequent change of position[,] and he will do poorly at any job which requires prolonged maintenance of one position, such as standing or sitting. Walking is certainly permitted, in fact, encouraged on brief, short intervals. As stated above, standing is[,] for the most part[,] to be avoided, except for extremely short periods of times. I do not expect that the functional capacity evaluation would show any trends that would change the above.

Dr. Beurlot concluded that Mr. Smith is “at least permanently partially disabled.”

1 ⅞Deposition of Andy Waldheim

The deposition of Mr. Andy Waldheim was also introduced into evidence. Mr. Waldheim, a physical therapist, performed an FCE on Mr. Smith on April 16, 17, and 18, 2007. After conducting his evaluation, Mr. Waldheim was of the opinion that Mr. Smith was able to perform “light-medium” work. When questioned about Mr. Smith’s complaints of pain, Mr. Waldheim explained that during the FCE, Mr. Smith’s pain did “increase a little bit,” but “he was still able to maintain” the light to medium work level. Based on the FCE, Mr. Waldheim was of the opinion that Mr. Smith was “[a]ble to perform work at the light-medium level with restrictions.... ”

Deposition of Paul Fontana

The deposition of Mr. Paul Fontana, an occupational therapist, was also introduced into evidence. Mr. Fontana worked in connection with Mr. Waldheim to generate the FCE report on Mr. Smith. It was Mr. Fontana’s testimony that, based upon Mr. Smith’s performance during the FCE over the course of three days, Mr. Smith was able to maintain work at a “light-medium” level. Mr. Fontana’s opinion, based upon Mr. Smith’s demonstrated abilities, was that Mr. Smith was not totally disabled.

FCE Report

The FCE report, which was introduced into evidence, states: “Although Mr. Smith continues to report the above pain, the client has been able to maintain work at the light medium work level. It is our professional opinion that Mr. Smith is employable at the light medium work level with restrictions as outlined in this report.”

Deposition of Dr. Kenneth Johnson

The deposition of Dr. Kenneth Johnson, Mr. Smith’s treating physician, was h¡introduced into evidence. Dr. Johnson testified that his diagnosis of Mr. Smith was “chronic low back injury, degenerative disease.” He was of the opinion that Mr. Smith’s limitations were light or sedentary. Dr. Johnson “just [did not] think that he’s really going to be able to do anything.” According to Dr. Johnson, if a “very light duty” job could be found, such as working “at home on a computer, rarely, off and on as is allowed, he may be able to do something like that.” As emphasized by Mr. Smith, it was Dr. Johnson’s opinion that, considering the physical restrictions when combined with Mr. Smith’s complaints of pain, it would be very difficult for him to work.

However, it was also Dr. Johnson’s testimony that he would not impose any additional restrictions on Mr. Smith other than those identified by Dr. Beurlot and those identified as a result of the FCE. Moreover, Dr. Johnson explained that, as a family practitioner, he “look[s] at things a little differently” than what is focused on in the other examinations. In his words, he “approach[es] it just purely from a pain issue of what the patient can tolerate and can’t tolerate.” Additionally, while the FCE and Dr. Beurlot “are dealing more with the actual body’s ability to do something,” Dr. Johnson “approachfes] it mainly from just a pain level.” Ultimately, Dr. Johnson testified that he would permit Mr. Smith to attempt a job that would allow him the freedom to alternate sitting, standing, and walking, if the position were within the physical limitations identified by Dr. Beurlot and the FCE.

Jurisprudence

The WCJ cited Dousay v. Dousay Floor Covering, 07-195, 07-196 (La.App. 3 Cir. 9/12/07), 966 So.2d 677, 966 So.2d 684, writ denied, 07-2023 (La.12/7/07), 969 So.2d 639, in support of his conclusion that Mr. Smith failed to prove his entitlement to PTD benefits. In Dousay, as in the case at bar, the claimant appealed [7the denial of his claim for PTD benefits. On appeal, this court found it “noteworthy that the results of the FCE revealed that Mr. Dousay fell within the U.S. Department of Labor’s light to very heavy physical demand levels.” Id. at 681-82. We noted in Dousay that “[d]espite the testimony offered by Mr. Dousay and his wife as to the physical limitations suffered by Mr. Dous-ay because of continued pain, the WCJ correctly noted the insufficiency of these facts to support a claim for permanent total disability benefits.” Id. at 682. “As indicated by the WCJ, none of Mr. Dous-ay’s treating physicians testified that he was ‘physically unable to engage in any employment’ as required by La.R.S. 23:1221(2)(c).” Id. We, therefore, affirmed the judgment of the WCJ, finding that Mr. Dousay was not entitled to PTD benefits since he failed to meet his burden of proof under La.R.S. 28:1221.

Dresser also refers this court to Bank of Winnfield & Trust Co. v. Collins, 31,473 (La.App. 2 Cir. 2/24/99), 736 So.2d 263, which we find to be instructive on the issue of PTD status. In Bank of Winnfield, 736 So.2d at 266, “the claimant testified that she had been unemployed since the accident and unable to work because of the continuing pain.” Although a physician testified that she was “ ‘permanently disabled’ from performing any job, he acknowledged that other than her subjective complaints of pain, there was no physical reason why [the] claimant could not engage in light-duty work activities.” Id. In describing the type of work that the claimant would be able to perform, it was the doctor’s testimony that the “claimant would only be able to perform a ‘sedentary’ type of job at home, where she could take frequent breaks, because she was not capable of sitting or standing for any length of time without rest intervals.” Id. In considering the issue of PTD status, the second circuit reasoned as follows:

Following the 1983 amendments to the workers’ compensation statute, evidence that an employee could not return to any gainful | Remployment without suffering substantial pain is no longer sufficient to support an award of permanent total disability benefits. Long v. Manville Forest Products Corp., 554 So.2d 181 (La.App. 2d Cir.1989); Perrodin v. St. Landry Parish School Bd., 95-1563 (La.App. 3rd Cir.5/22/96), 676 So.2d 612. Here, Dr. Weiss testified that the basis of his opinion concerning claimant’s permanent disability was her continuing symptom of pain. However, the fact that claimant can only work in substantial pain is not sufficient to support recovery of permanent total disability benefits. On the basis of this record, we cannot say the workers’ compensation judge was clearly wrong in finding that the claimant failed to prove by clear and convincing evidence that she was permanently and totally disabled.

Id. at 266-67. See also, Whatley v. Hartford Accident & Indem. Co., 509 So.2d 671 (La.App. 3 Cir.1987), writ denied, 512 So.2d 441 (La.1987).

Conclusion

Having reviewed the evidence in the record and the jurisprudence cited by the parties herein, we find that there are two permissible views of the evidence. We are unable to conclude that the WCJ was manifestly erroneous in concluding that Mr. Smith failed to meet his burden of proving, by clear and convincing evidence, that he is unable to engage in any employment. Rather, based upon all of the evidence discussed in detail above, the record clearly establishes that Mr. Smith is able to engage in employment, albeit with pain and restrictions. We are cognizant of the objective physical condition of Mr. Smith, and we do not question the veracity of his subjective complaints of pain; however, that alone does not render him permanently and totally disabled pursuant to La. R.S. 23:1221 and the jurisprudence interpreting same.

DECREE

For the foregoing reasons, the judgment of the workers’ compensation judge in favor of Dresser Industries, Inc., is affirmed. Costs of this appeal are assessed to Gary Smith.

AFFIRMED.

      . The named Defendant in the caption of this case is "Dresser Industries[J” the employer of claimant; however, in his brief, counsel for Dresser Industries identifies the employer as "Dresser Industries, Inc.[,]” and that is how it will be referred to throughout this opinion.