author: WELCH, J. PETTIGREW, J.,

text:
    Tonya R. Excho OLIVIER v. James Chad OLIVIER.
    No. 2011 CU 0579.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 9, 2011.

      Mark D. Plaisance, Baker, LA, Harry W. Ezim, Jr., Baton Rouge, LA, for Plaintiff-Appellee Tonya R. Excho Olivier.
    James D. Thomas, II, Baton Rouge, LA, Debra Bracey, Lakeland, LA, for Defendant-Appellant James Chad Olivier.
    Before PETTIGREW, McCLENDON, and WELCH, JJ.
   WELCH, J.

| ¾James Chad Olivier appeals a judgment that, among other things, awarded the parties joint custody of their minor child, designated Tonya R. Excho Olivier (now “Excho”) as the child’s domiciliary parent, and allocated James specific physical custodial periods. For reasons that follow, we affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL HISTORY

The parties were purportedly married on June 22, 2007; however, the marriage was subsequently declared absolutely null. See Olivier v. Olivier, 2009-2298 (La.App. 1st Cir.9/10/10), 2010 WL 3518054 (unpublished). The parties had one child, who was born on April 25, 2008, as a result of their relationship. Shortly after the child’s birth, Tonya filed a rule seeking sole custody of the child, or alternatively, that the parties be awarded joint custody of the child, that she be designated as the child’s domiciliary parent, and that James be awarded specific physical custodial periods. In response, James filed a reconven-tional demand seeking sole custody of the child, or alternatively that the parties be awarded joint custody of the child, that he be designated as the child’s domiciliary parent, and that Tonya be awarded specific physical custodial periods.

On June 17, 2008, the parties stipulated to an interim order of custody. Specifically, the parties agreed that they would have joint custody of the minor child; that Tonya would be designated as the child’s domiciliary parent; and that James would have physical custody of the minor child on Mondays, Wednesdays, and Fridays from 6:00 p.m. until 9:00 p.m., on alternating Saturdays from 12:00 |sp.m. until 4:00 p.m., and on alternating Sundays from 10:00 a.m. until 2:00 p.m. This interim order further provided that the matters set forth therein were set without prejudice to either party and were temporary in nature.

Following this interim order, numerous pleadings were filed by both parties pertaining to modifications of the physical custodial arrangement for various reasons. Finally, on September 13 and 16, 2010, a trial pertaining to custody (initial setting) was held. Following trial, the trial court rendered judgment, which was signed on October 26, 2010, awarding the parties joint custody of the minor child; designating Tonya as the domiciliary parent; and allocating James physical custodial periods with the minor child on every other weekend from Friday at 5:30 p.m. until Sunday at 5:30 p.m., on Wednesday from 12:00 p.m. until Thursday at 6:00 p.m. during the week following his weekend visitation, and on alternating holidays.

The judgment also provided that Tonya did not have to disclose or provide James with her home address, that James was to refrain from making any derogatory or personal comments about Tonya in his communications with her or in the presence of the minor child, and that neither party would be allowed to have a member of the opposite sex who was not a spouse or a family member spend the night while exercising physical custody. Additionally, the judgment ordered that the parties were to place the minor child on a consistent diet with regard to her current medical condition; that if the parties had any disagreements concerning the minor child, they should consult with their parenting coordinator; that the parties were to communicate with regard to doctor appointments for the minor child; and that Tonya was to contact a psychologist to be evaluated, to provide the psychologist with a copy of the custody evaluation performed by Dr. Alan Taylor, |4and to undergo any treatment recommended by that psychologist. From this judgment, James now appeals.

ASSIGNMENTS OF ERROR

On appeal, James argues that the trial court erred or abused its discretion in awarding joint custody with Tonya designated as the domiciliary and in its physical custody allocation because: (1) proper weight or consideration to the uncontra-dicted testimony and findings of Dr. Taylor, a psychologist, was not given; (2) the finding that Tonya’s personality disorders did not affect the child was inconsistent with the order for Tonya to undergo psychological evaluation and potential treatment; (3) Tonya’s testimony had no credibility and should not have been accepted by the trial court; and (4) La. C.C. arts. 131 and 134 and La. R.S. 9:335 were not applied or applied incorrectly. James also asserted that the trial court abused its discretion in not allowing James to know Tonya’s physical address because that is where the child resides.

LAW AND DISCUSSION

Each child custody case must be viewed in light of its own particular set of facts and circumstances. Perry v. Monistere, 2008-1629, 2008-1630 (La.App. 1st Cir.12/23/08), 4 So.3d 850, 852. Louisiana Civil Code article 131 provides that “the court shall award custody of a child in accordance with the best interest of the child.” Thus, the paramount consideration in any determination of child custody is the best interest of the child. Evans v. Lungrin, 97-0541, 97-0577 (La.2/6/98), 708 So.2d 731, 738. In determining the best interest of the child, La. C.C. art. 134 provides:

The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
(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 |filove, 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 list of factors set forth in this article is non-exclusive, and the determination as to the weight to be given each factor is left to the discretion of the trial court. La. C.C. art. 134, comment (b). Additionally, the “best interest of the child” test under La. C.C. arts. 131 and 134 is a fact-intensive inquiry, requiring the weighing and balancing of factors favoring or opposing custody in the competing parties on the basis of the evidence presented in each case. Martello v. Martello, 2006-0594 (La.App. 1st Cir.3/23/07), 960 So.2d 186, 191. Hence, every child custody case is to be viewed on its own particular set of facts and the relationships involved, with the paramount goal of reaching a decision that is in the best interest of the child. Id.

| fiThe trial court is vested with broad discretion in deciding child custody cases. Because of the trial court’s better opportunity to evaluate witnesses, and taking into account the proper allocation of trial and appellate court functions, great deference is accorded to the decision of the trial court. Thus, a trial court’s determination regarding child custody will not be disturbed absent a clear abuse of discretion. Martello, 960 So.2d at 191-92.

In this case, as in most child custody cases, the trial court’s determination as to what was in the best interest of the child was based heavily on factual findings. It is well settled that an appellate court may not set aside a trial court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse those findings even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id.

In oral reasons for judgment following the custody trial, the trial court specifically recognized at the outset that custody was to be determined in accordance with the best interest of the child and the enumerated factors set forth in La. C.C. art. 134. The trial court also noted that the evidence presented in this case focused on Dr. Taylor’s evaluation and testimony concerning Tonya; the credibility of Tonya, particularly with regard to her marriage and divorce from Peter Excho; the incident (or series of incidents) that occurred at the hospital when the minor child was born; and the inappropriate behavior displayed by James in his interactions and communications with Tonya.

According to the record, Dr. Taylor was not appointed by the trial court as an expert in this case, and he did not perform a custody evaluation in this case. See La. R.S. 9:331. Rather, he was appointed to perform a custody evaluation in 2007 for another custody dispute involving Tonya and her ex-husband, Peter. ^Nonetheless, the trial court accepted Dr. Taylor as an expert in clinical psychology and his 2007 custody evaluation was accepted into evidence.

According to Dr. Taylor’s 2007 evaluation, the psychological tests administered to Tonya revealed “marked elevation on the paranoia subscale and a borderline elevation on the depression subscale” indicating “the use of multiple paranoid defenses with a possible breakdown of reality testing.” However, it also indicated that her current “day to day coping and practical self-sufficiency still test[ed] within the normal range.” In the evaluation, Dr. Taylor concluded that although he was concerned about the psychological healthiness of both parents, he believed that both parents clearly loved their children, that they were both very closely involved with their children, and that in terms of day-to-day oversight for routine activities of the children, that there was no significantly greater risk or advantage for custody in either parent. Therefore, by default, he recommended that Tonya and her ex-husband, Peter, share equal physical custody. He also recommended that mental health professionals provide oversight and advice to both parents concerning appropriate parenting approaches.

Dr. Taylor’s testimony at the custody hearing in this case essentially reiterated the methodology and findings from the 2007 custody evaluation. He acknowledged that he did not evaluate James, did not administer any psychological testing on James, and did not know anything about James’s parental fitness or ability to parent a child. He unequivocally stated that he could offer no opinion regarding child custody in this case.

With regard to the testimony of Dr. Taylor and his 2007 evaluation of Tonya, the trial court stated that even accepting Dr. Taylor’s diagnoses of Tonya with depression and personality disorders (nonspecific paranoia and borderline histrionic), it was not convinced that either the depression or personality disorders had a “negative impact” on either her relationship with James or on her ability to _LsParent the child to the extent that it was contrary to the best interest of the child. Nevertheless, the trial court ordered Tonya to be re-evaluated by a mental health professional and to follow any recommended treatment. The trial court reasoned that although it had not seen Tonya’s diagnoses manifest in a way that was contrary to the best interest of the child, her conditions had not been adequately dealt with in terms of treatment.

James contends that the trial court’s decision to accept Dr. Taylor’s diagnoses concerning Tonya and its order that Tonya see a mental health professional demonstrates that the trial court had “serious concerns as to the mental health of Tonya.” Further, James contends that the trial court’s findings on this issue are inconsistent with its determination of custody and what was in the best interest of the child and that the trial court judgment designating Tonya as the domiciliary parent must be reversed. We disagree.

The trial court is not required to give any extra credence to the testimony of experts. Givens v. Givens, 2010-0680 (La.App. 1st Cir.12/22/10), 53 So.3d 720, 729. It is well settled in Louisiana that the fact finder is not bound by the testimony of an expert, but such testimony is to be weighed the same as any other evidence. Id. The fact finder may accept or reject in whole or in part the opinion expressed by an expert. Id. The effect and weight to be given expert testimony is within the trial court’s broad discretion. Id.

Dr. Taylor specifically testified that, in this case, he did not perform a custody evaluation, that he had no opinion on custody, and thus, no opinion as to what was in the best interest of the child. Accordingly, the trial court was well within its discretion to accept or reject any part of Dr. Taylor’s opinions and to make its own factual findings as to what was in the best interest of the minor child. Dr. Taylor’s evaluation and opinion was offered by James solely as evidence of Tonya’s mental health, which was only one of many factors that the trial court | acould consider in its determination of the best interest of the child. See La. C.C. art. 134(7).

Despite Dr. Taylor’s findings and recommendations concerning Tonya, Dr. Taylor never expressed the opinion that Tonya was mentally or psychologically unfit to have custody (or to be designated as the domiciliary parent) of the children at issue in that case. Although the trial court accepted Dr. Taylor’s opinions regarding Tonya’s mental health conditions and her need for therapy to address those conditions, its ultimate conclusion that those conditions had not negatively impacted her ability to parent the minor child was neither inconsistent with its award of custody nor manifestly erroneous. Notably, Dr. Taylor found that Tonya’s “day to day coping and practical self-sufficiency” were normal and that she was able to provide “day-to-day oversight” for her children’s routine activities. Additionally, the trial court was personally able to observe Tonya during trial and to make its own finding as to how her conditions affected the child and the best interest of the child.

Next, James contends that the trial court erred in affording any credibility to the testimony of Tonya, claiming the record was “replete with uncontrovertable evidence of her misrepresentations to the court.” Specifically, he argues that Tonya “lied concerning her commission of bigamy” in attempting to obtain spousal support, pointing in support of this argument to our prior opinion in Olivier; that she lied in attempting to obtain restraining orders; and that she lied to obtain the judgment at issue. Based on the record that is before us, we disagree.

With regard to issues concerning the credibility of witnesses, we recognize that where there is conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact made by the trial court are not to be disturbed. See Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882-883 (La.1993). When a fact finder is presented with two permissible | inviews of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 883. Additionally, where the fact finder’s conclusions are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the trier of fact because only the trier of fact 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. Rosell, 549 So.2d at 844. However, where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, we may well find manifest error or clear wrongness, even in a finding purportedly based upon a credibility determination. Rosell, 549 So.2d at 844-45. But where such factors are not present and a fact finder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell, 549 So.2d at 845.

In Olivier, the issue before us was whether the trial court’s determination that Tonya had no right to claim spousal support because she was married to Peter at the time of her marriage to James was manifestly erroneous. Olivier, 2009-2298 at p. 4. While we ultimately determined that the trial court’s factual finding that Tonya and Peter had common law marriage at the time that she attempted to contract her marriage to James had a reasonable basis in the record and was obviously based on a credibility determination, we never concluded or held that Tonya misled, lied, or was dishonest to the court. Olivier, 2009-2298 at pp. 6-7. Thus, James’s reliance on Olivier to support his argument that Tonya has lied and made misrepresentations to the court is misplaced.

Furthermore, the trial court was obviously aware of the credibility determinations made in Olivier because the same trial court judge that rendered | nthe judgment on appeal in Olivier was the same trial court judge that rendered the judgment on appeal herein. In its oral reasons for judgment, the trial court duly noted that evidence had been presented with regard to Tonya’s credibility (and specifically relating to her divorce from Peter), that it had already ruled on that issue, but would, nevertheless, accept that evidence as presented on the issue of Tonya’s credibility. Therefore, we find no support in the record for James’s contention that the trial court erred in accepting Tonya’s testimony because she allegedly lied concerning her commission of bigamy.

With regard to James’s claim that Tonya’s testimony was not credible because she purportedly lied to obtain restraining orders against him, again we find nothing in the record to support these allegations. The record before us reflects that Tonya filed two petitions for protection from abuse pursuant to La. R.S. 46:2131, et seq.; however, neither petition culminated in an injunction against James because both petitions were ultimately dismissed — one voluntarily by Tonya and one involuntarily after a hearing by the trial court.

Tonya’s first petition for protection from abuse was based on a threatening phone call and voice mail message on Tonya’s mobile phone, which reflected that the caller had placed the threatening phone call from Tonya’s residence when she was not at home (thus, giving the appearance that the threatening call had been placed by an intruder). James admitted that he was responsible for the threatening phone call/ voice mail message, but claimed that he intended it to be a “joke.” According to the record, Tonya voluntarily agreed to dismiss the petition for protection from abuse, at James’s cost, in exchange for James’s agreement to be evaluated by Dr. Kumari Moturu, a psychiatrist, and to follow Dr. Moturu’s recommendations concerning personal counseling.

Tonya’s second petition for protection from abuse was based on an incident that occurred when James was returning the minor child to Tonya following his |12physical custodial period. This petition was dismissed by the trial court following a hearing on the basis that Tonya failed to prove, by the appropriate standard, the allegations contained in the petition.

The transcript from the hearing on the petition for protection is not contained in the record before us, and the trial court judge that rendered the judgment of dismissal was the predecessor judge of the present trial court judge. Therefore, we do not know what the evidence from that hearing consisted of or the exact basis on which the petition was dismissed. In the petition, Tonya claimed that James was attempting to gain entry to her home without her permission, so she quickly closed the door on him in an effort to keep him out. At trial, James did not deny that the incident occurred. However, he claimed that when Tonya shut the door on him, the door chipped his tooth, and so he filed a personal injury lawsuit against Tonya and her insurer, which at the time of trial was still pending. Because there was no dispute that the incident occurred, it was possible for the trial court to have concluded that the dismissal of the petition was not necessarily based on credibility — or a lack thereof — but rather that the incident at issue did not rise to the level of “abuse” warranting protection under the domestic abuse assistance statutes. Therefore, we find no support in the record for James’s contention that the trial court erred in accepting Tonya’s testimony because she allegedly lied to obtain restraining orders against him.

Insofar as James contends that Tonya lied to obtain the custody judgment on appeal herein, again, we find a lack of evidence in the record to support his assertions. The trial court was able to listen to Tonya during her testimony and to observe her during her testimony and throughout the trial, and therefore, make the 113necessary credibility determinations concerning her testimony. After hearing the testimony of Tonya and assessing her character, attitude and demeanor, the trial court apparently concluded that she was a credible witness. We have reviewed Tonya’s testimony in its entirety and find that the trial court’s credibility determination was reasonable. The record before us does not contain any documents or objective evidence that so contradicts Tonya’s testimony or establishes that Tonya’s testimony was so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit her testimony. In the absence of such evidence, the trial court’s decision to credit her testimony cannot be manifestly erroneous or clearly wrong. As such, we find no merit to James’s contention that the trial court erred in accepting Tonya’s testimony because she allegedly lied to obtain this custody judgment.

Next, James contends that the trial court erred in its application of La. C.C. arts. 131 and 134 and failed to consider the best interest of the child when it designated Tonya as the domiciliary parent and when it allocated his physical custodial periods under La. R.S. 9:335.

As previously noted the trial court stated at the outset that its determination of custody would be in accordance with what was in the best interest of the child. Based on the significant amount of evidence of inappropriate and uncooperative behaviors exhibited by James both in his interactions and communications with Tonya, the trial court was greatly concerned with how James’s negative feelings for Tonya had impacted the best interest of the child. Specifically, the trial court found that James’s had acted “inconsistent with someone ... acting in the best interest of the child,” that he was not “fostering] good communication between the parties,” and that he had placed himself and his own feelings before those of the child. The trial court’s concern over these issues and how it impacted the best interest of the child was so great that it “seriously considered sole custody” in 114favor of Tonya.

Therefore, in determining the best interest of the child and in considering the factors set forth in La. C.C. art. 134, it is clear from the trial court’s reasons for judgment that it gave a great deal of weight and consideration to factor number 10 — the willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party. Further, it is clear that this factor weighed so heavily against James that the trial court concluded it was in the best interest of the child for the parties to be awarded joint custody with Tonya designated as the domiciliary parent.

Based upon our review of the record, we find that the trial court’s conclusion that James would not be willing to facilitate a close and continuing relationship between the child and Tonya is fully supported by the record and is not clearly wrong. Additionally, we do not find that the weight assigned to this factor by the trial court was an abuse of the discretion afforded it. The record before us is replete with evidence confirming the trial court’s findings that James’s negative feelings and behavior toward Tonya had negatively impacted the child’s best interest and that the child’s best interest would be served by designating Tonya as the domiciliary parent.

For instance, there was testimony by Tonya and her mother, Carol Bying, that following the birth of the child, when Tonya and the child were still in the hospital, that James threatened to harm Tonya and the child, that he had to be removed by the hospital staff, and that he had to be limited to visitation supervised by hospital personnel. Additionally, the record contains several email communications from James to Tonya that can only be described as mean-spirited, insulting, and harassing. And, when James was questioned concerning “the one thing in [his] life that was most important” his answer was God, then himself, and then the minor child.

11sWith regard to the other factors set forth in La. C.C. art. 134, we recognize that there is evidence demonstrating that both Tonya and James have a great deal of love, affection, and emotional ties to their child, and that they both have the capacity and disposition to give the child love, affection, and spiritual guidance; to continue the education and rearing of the child; and to provide the child with food, clothing, medical care, and other material needs. However, Tonya has been the child’s primary caregiver since the child’s birth, and the child has resided with Tonya (and her other two children) since birth. Although there was evidence presented by James concerning Tonya’s mental health (as previously discussed), we also recognize there was evidence presented raising the issue of James’s mental health. For instance, James’s “MySpace” page contained numerous quotations from serial killers, and he utilized “Twist3d.one” or “twist3dl” (twisted one) for his usernames, email address, and logo. Additionally, there was evidence that James spent time in a mental health hospital in 2007, for issues related to prescription drug usage.

There was also evidence presented that James was not cooperating in potty-training the child or in following recommended medical treatment with regard to bowel problems the child was suffering from. Additionally, Tonya is currently residing in New Orleans and James is currently residing in Baton Rouge. According to the testimony at trial, when the child is in Tonya’s physical custody, the child does not have to be placed in daycare, since Tonya is able to work from home. However, when the child is in James’s care, because James works outside of the home, the child must be placed in a daycare. The evidence further revealed that this daycare is an un-licensed, in-home daycare provider, and that the number of children at the daycare providers’ home exceeds the number of children that state law allows for an in-home daycare facility.

After considering all of the evidence in this record and the trial court’s broad | ^discretion in making custody determinations, we do not find that the trial court incorrectly applied the provisions of La. C.C. arts. 131 and 134 or that it abused its discretion in awarding joint custody with Tonya designated as the domiciliary parent.

When parents share joint custody of children, La. R.S. 9:335 requires an implementation order to be rendered (except for good cause shown), which allocates each party’s physical custodial time periods, as well as the legal authority and responsibility of the parents. Louisiana Revised Statutes 9:335(A)(2)(a) and (b) requires frequent and continuing contact with both parents, and to the extent that it is feasible and in the best interest of the child, that physical custody of the child be shared equally. The trial court is imbued with much discretion in the determination of what constitutes feasible, reasonable time periods of physical custody. Givens, 53 So.3d at 728.

In this case, the trial court allocated James physical custody every other weekend from Friday at 5:30 p.m. until Sunday at 5:30 p.m.; during weeks that James does not have weekend visitation, on Wednesday at 12:00 p.m. until Thursday at 6:00 p.m.; and one-half of all extended and alternating holiday periods. Based on our review of the evidence, as previously detailed herein, we find no manifest error in the trial court’s apparent conclusion that equal sharing of the child was neither feasible nor in the best interest of the child. The physical custody allocation in favor of James considers the distance between the parties’ residences, the age and needs of the child, and ensures that James will have frequent and continuing contact with the child, as he is provided substantial physical custodial time periods on a weekly basis. Therefore, we do not find that the trial court incorrectly applied the provisions of La. R.S. 9:335, nor abused the discretion afforded it in determining the proper allocation of physical custody as set forth in the judgment.

117Lastly, in this case, the judgment of the trial court provided that Tonya did not have to disclose or provide James with her home address. Since Tonya was designated as the child’s domiciliary parent, her home address is where the child will physically reside. On appeal, James contends that it was an abuse of the trial court’s discretion to issue an order effectively precluding him from knowing where his child is physically residing because there is no evidence in the record to support such an order. We disagree.

As previously noted, the trial court is vested with vast discretion in matters of child custody. This discretion would necessarily include the authority to issue any orders it deems necessary, based on the evidence, to be in the best interest of the child. The trial court’s order that Tonya did not have to disclose her address to James was issued prior to the trial on custody, and appears to have been based on the allegation that James was, on a frequent basis, in close proximity to Tonya’s home (without a reason for being there) with a video camera. Following the custody trial, the trial court maintained the order. As previously discussed, the trial court found, and the record before us establishes, that James has acted inappropriately in his interactions and communications with Tonya, that James’s negative feelings and behavior toward Tonya have negatively impacted the child’s best interest, and that James harbors a great deal of animosity and bitterness toward Tonya. Based on this evidence, we cannot say the trial court abused its discretion in determining that an order that Tonya did not have to provide her home address to James was necessary and in the best interest of the child.

CONCLUSION

For all of the above and foregoing reasons, the October 26, 2010 judgment of the trial court is affirmed. All costs of this appeal are assessed to the defendant/appellant, James Chad Olivier.

AFFIRMED.

McCLENDON, J., agrees and assigns additional reasons.

PETTIGREW, J., concurs in part and dissents in part and assigns reasons.

McCLENDON, J., agrees and assigns additional reasons.

11 While it is preferable in joint custody cases for each parent to know the address of the other, in situations where said knowledge creates a serious risk of danger to the other parent, a legitimate basis exists for the court to allow the withholding of said information. Acknowledging that these are fact intensive cases, in this case, the trial court had a reasonable basis for not requiring Tonya to provide her home address to James. As noted by the majority, James displayed inappropriate behavior in his interactions and communications with Tonya, had threatened to harm Tonya, had sent mean-spirited, insulting, and harassing e-mails to Tonya, utilized “Twist3d.one” or “twist3dl” for his user-name, e-mail address, and logo on a social website and included numerous quotes from serial killers thereon, had spent time in a mental health hospital in 2007 for issues related to prescription drug usage, and had left a threatening call/voice message for Tonya, which appeared to have been made from inside of her home. Moreover, Tonya had previously filed two petitions for protection from abuse from James. Under these facts, I do not believe the “welfare of the child” would require the production of an address. See LSA-R.S. 9:336.

PETTIGREW, J.,

concurs in part, dissents in part, and assigns reasons.

_JjI agree with the majority, except as to that part of the trial court’s judgment that allowed Tonya not to have to disclose or provide the minor child’s address to James. After considering the factors of La. Civ.Code art. 134, the trial court determined that it was in the best interest of the child that the parties be awarded joint custody. If it is in the best interest of the minor child for James to be granted joint custody, then it is in the best interest of the minor child for James to be provided the address of the minor child. To do otherwise is inconsistent.

      . Tonya and James were awarded joint custody of their minor child. However, we note that both parties and the trial court have used the term “visitation” with reference to James’s custodial time. "Visitation,” as provided for in La. C.C. art. 136, applies only when a parent does not have custody or joint custody. The time that parents with joint legal custody share with their children is more properly described as a physical custody allocation of a joint custody plan, rather than as visitation. La. R.S. 9:335; Cedotal v. Cedotal, 2005-1524 (La.App. 1st Cir.l 1/4/05), 927 So.2d 433, 436; see Evans v. Lungrin, 97-0541, 97-0577 (La.2/6/98), 708 So.2d 731, 737.

      . The judgment also provided that physical custody during the summer months would be ‘'revisited” when the minor child reached school-age.

      . At the hearing on the rule, the petitioner must prove the allegations of abuse by a preponderance of the evidence. La. R.S. 46:2135(B). "Domestic abuse” is defined in the domestic abuse assistance statutes as including, but not limited to, "physical or sexual abuse and any offense against the person as defined in the Criminal Code of Louisiana, except negligent injury and defamation, committed by one family or household member against another.” La. R.S. 46:2132(3).


source: Caselaw Access Project

author: GAIDRY, J.

license: Public Domain

text:
    GAYLORD CHEMICAL CORPORATION and Continental Casualty Company v. Jerome Milton SHORT.
    No. 2011 CA 0321.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 9, 2011.

      Kirk L. Landry, Baton Rouge, LA, for Plaintiffs-Appellants Gaylord Chemical Corporation and Continental Casualty Company.
    Edward Robinson, III, Mark Edward Robinson, Baton Rouge, LA, for Defendant-Appellee Jerome Milton Short.
    Before GAIDRY, McDONALD, and HUGHES, JJ.
   GAIDRY, J.

l2The former employer of an injured employee and the employer’s workers’ compensation insurer appeal a judgment denying their request for the appointment of an independent medical examiner and imposing sanctions, in the form of an award of attorney fees, upon the insurer. We reverse the judgment and remand this matter for further proceedings, with instructions.

FACTUAL AND PROCEDURAL HISTORY

Jerome Milton Short was injured in October 1995 from exposure to nitrogen tetroxide in the course and scope of his employment with Gaylord Chemical Corporation (Gaylord). He was awarded workers’ compensation benefits for temporary total disability due to pulmonary and psychological conditions. Short v. Gaylord Chem. Corp., 98-0606 (La.App. 1st Cir.4/1/99), 731 So.2d 493. He has received continuing workers’ compensation benefits, including payment of psychiatric and pharmaceutical expenses, since that time.

On October 5, 2009, Mr. Short was examined by a psychiatrist, Rennie Culver, M.D., at the request of Gaylord and its workers’ compensation insurer, Continental Casualty Company (Continental). On January 13, 2010, Dr. Culver wrote a detailed report regarding his examination, diagnoses, opinion, and recommendations.

On July 20, 2010, Gaylord and Continental filed a completed Form LWC-WC-1015 (“Request for Independent Medical Examination”) with the District 6 office of the Office of Workers’ Compensation, the tribunal in which Mr. Short’s prior disputed claim originally was determined. The form was accompanied by a formal motion for appointment of an independent medical examiner pursuant to La. R.S. 23:1123. In their motion, Gaylord 13and Continental alleged that Dr. Culver’s opinion established a dispute as to Mr. Short’s current medical treatment (including the prescription of pain medication by his psychiatrist) and capacity to work. Both the Form LWC-WC-1015 and the motion bore the docket number of the prior disputed claim (96-05300). An order for the appointment of the examiner was included with the motion.

Rather than signing the order, the workers’ compensation judge (WCJ) made a signed notation on it: “Form 1015 — Forwarded to B.R. [Baton Rouge] Medical Services for processing.” At some point, the notation was crossed out, and the local district office returned the form, motion, and attachments to counsel for Gaylord and Continental and instructed him by telephone to submit a completed Form LWC-WC-1008 (“Disputed Claim for Compensation”). Counsel complied by filing that form and the original motion on August 11, 2010, and the request was assigned a new docket number (10-07170).

On August 25, 2010, Mr. Short filed an answer through counsel, characterizing the “dispute” as “whether res judicata is applicable in this case based upon prior rulings of this court [in the prior disputed claim]” and “an issue of whether the petition[er]/employer is physician shopping and being arbitrary and capricious and disrespectful of previous rulings in this case which have confirmed the employee’s permanent disability.” On the same date, Mr. Short filed a peremptory exception of res judicata and no cause of action and a motion for sanctions. The WCJ signed an order fixing the hearing on the exceptions and motion for September 13, 2010.

On August 27, 2010, Mr. Short filed a memorandum in opposition to the motion for appointment of an independent medical examiner.

|4On motion of Gaylord and Continental, the hearing on Mr. Short’s exceptions and motion was continued to October 8, 2010.

At the conclusion of the hearing on October 8, 2010, the WCJ denied the request for the independent medical examination (IME) on jurisdictional grounds, ruling that she had no authority to order the IME until after a Form LWC-WC-1015 was submitted to the director of the Office of Workers’ Compensation, objection was made by the employee, and the dispute then referred to her under a Form LWC-WC-1008. In light of her decision to deny the request for the IME, the WCJ ruled that Mr. Short’s exceptions were moot. She took his motion for sanctions under advisement and requested post-hearing memoranda on that issue.

On October 29, 2010, the WCJ signed a judgment, denying the motion for the IME, granting Mr. Short’s motion for sanctions, and awarding Mr. Short $500.00 in attorney fees against Continental “for the defense of this motion [for the IME].” The judgment was accompanied by written reasons for judgment issued the same day. In those reasons, the WCJ characterized the request and motion of Gaylord and Continental as predicated upon La. R.S. 23:1124.1, rather than upon La. R.S. 23:1123. She found that they unnecessarily and inappropriately used “the provisions of La. R.S. 23:1124.1 as the vehicle to get into court,” and that they thereby “forced [Mr. Short] to hire an attorney to respond to the litigation” and caused him “undue hardship and stress.” This appeal followed.

ASSIGNMENTS OF ERROR

Gaylord and Continental contend that the WCJ erred in the following respects:

1. The [WCJ] committed legal error in refusing, on jurisdictional grounds, to appoint an [IME] pursuant to La. R.S. |,¡¡23:1123, particularly by substituting a separate statute not cited or urged by appellants or appellee.
2. The [WCJ] committed legal error in awarding attorney’s fees “for the defense of (a) motion” for the appointment of an [IME], where the [WCJ] failed to acknowledge or consider the jurisdictional and statutory] basis cited by the appellants and where [Mr. Short] failed to introduce any evidence whatsoever to support such an award against the party cast in judgment.

DISCUSSION

Legislative intent is the fundamental question in all cases of statutory interpretation, and rules of statutory construction are designed to ascertain and enforce the intent of the statute. State v. Campbell, 03-3035, p. 7 (La.7/6/04), 877 So.2d 112, 117. It is presumed that the legislature enacts each statute with deliberation and with full knowledge of all existing laws on the same subject. Id., 03-3035 at p. 8, 877 So.2d at 117. Thus, legislative language will be interpreted on the assumption that the legislature was aware of existing statutes, rules of construction, and judicial decisions interpreting those statutes. It is further presumed that the legislature intends to achieve a consistent body of law. Id.

The starting point in the interpretation of any statute is the language of the statute itself. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. In re Clegg, 10-0323, pp. 20-21 (La.7/6/10), 41 So.3d 1141, 1154. The meaning and intent of a law is determined by considering the law in its entirety and all other laws on the same subject matter and by placing a construction on the law that is consistent with the express terms of the law and with the obvious intent of the legislature in enacting the law. Id., 10-0323 at p. 21, 41 So.3d at 1154. It is a fundamental rule of statutory construction that when two statutes deal with the same subject matter, the |,statute specifically directed to the matter at issue must prevail as an exception to the more general statute. Fontenot v. Reddell Vidrine Water Dist., 02-0439, 02-0442, 02-0478, p. 20 (La.1/14/03), 836 So.2d 14, 28.

Louisiana Revised Statutes 23:1123 authorizes the appointment of an independent medical examiner selected by the director of the Office of Workers’ Compensation, as opposed to an examiner selected by either party. It provides that:

If any dispute arises as to the condition of the employee, capacity to work, or the current medical treatment for the employee, the director, upon application of any party, shall order an examination of the employee to be made by a medical practitioner selected and appointed by the director. The medical examiner shall report his conclusions from the examination to the director and to the parties and such report shall be prima facie evidence of the facts therein stated in any subsequent proceedings under this Chapter.

By way of contrast, La. R.S. 23:1124.1, cited in its entirety by the WCJ in her written reasons, deals with the discretionary authority of the WCJ to unilaterally “order that any claimant appearing before it [sic ] be examined by other physicians” for the purpose of providing advisory opinions to the WCJ, in addition to those physicians whose testimony is presented by the parties. That authority is not limited to the appointment of independent medical examiners under La. R.S. 23:1123, and La. R.S. 23:1124.1 does not contain the mandatory language of La. R.S. 23:1123. Louisiana Revised Statutes 23:1124.1 is not at issue in the present context.

Louisiana Revised Statutes 23:1310.8(A)(1) provides, in pertinent part, that:

The power and jurisdiction of the workers’ compensation judge over each case shall be continuing and he may, upon application by a party and after a contradictory hearing, make 17such modifications or changes with respect to former findings or orders relating thereto if, in his opinion, it may be justified, including the right to require physical examinations as provided for in [La.] R.S. 23:1123 ...

(Emphasis added.)

Louisiana Revised Statutes 23:1317.1(B)-(E) set forth the standards for IMEs performed under the authority of La. R.S. 23:1123. Paragraph F provides that “(o]b-jections to the [IME] shall be made on form LDOL-WC-1008 [now designated as Form LWC-WC-1008, due to the statutory name change of the Louisiana Department of Labor to the Louisiana Workforce Commission], and shall be set for hearing before a [WCJ] within thirty days of receipt.”

According to La. R.S. 23:1123, the power to order an IME pursuant to its provisions is vested in the “director” of the Office of Workers’ Compensation. As observed by one commentator, that language was placed in the statute “when the director had adjudicative powers, and it may be an oversight that this power was not transferred to the administrative hearing officers in 1988 and then later to the workers’ compensation judges.” 14 H. Alston Johnson III, Louisiana Civil Law Treatise: Workers’ Compensation § 382 n. 25 (5th ed.2010). However, “[t]he enactment by Acts 1995, No. 328 of La. R.S. 23:1317.1, relative to the procedure for requesting an IME order, certainly implies that this is a power vested in the workers’ compensation judges.” Id. The language of La. R.S. 23:1123, 23:1310.8(A)(1), and 23:1317.1(F) may be reconciled by an interpretation that the request for an IME may be directed to the workers’ compensation judge, who may order the examination, with the selection and appointment of the examiner made by the director of the Office of Workers’ Compensation. Id.

[ RForm LWC-WC-1015, by which a request for an IME pursuant to La. R.S. 23:1123 is presented, includes blanks for the insertion of the existing docket number for the underlying claim and the district number. Form LWC-WC-1008, used for filing a disputed claim for compensation, including the refusal to submit to an IME as provided in La. R.S. 23:1317.1(F), instructs the filer to “mail” the completed form to either the local district office or the central office of the Office of Workers’ Compensation in Baton Rouge. Form LWC-WC-1015, however, provides only that the filer should “return” it to the central office.

Every pleading shall be so construed as to do substantial justice. La. C.C.P. art.

865. The courts of this state, including the workers’ compensation tribunals, should bear in mind that rules of procedure implement the substantive law and are not an end in themselves. See La. C.C.P. art. 5051. For example, there is no practical or legal requirement that each new dispute brought before a workers’ compensation tribunal, relating to a prior claim for which the employee is receiving payment of benefits, be initiated by the filing of a new claim using Form LWC-WC-1008. See Romero v. Northrop Grumman Corp., 06-1210, pp. 8-11 (La.App. 3rd Cir.3/7/07), 952 So.2d 855, 860-62.

During the course of the hearing, the trial court emphasized her position that “a 1015 form IME does not come to [her],” but should be submitted to the director. She further questioned counsel for Gaylord and Continental at length about the propriety of filing a Form LWC-WC-1008 when there was no “decision” for her to make on a “dispute,” although it was her district office who instructed counsel to use the latter form to present the request for the IME.

| aThe fact of the matter is that Gaylord and Continental did in fact initially file a Form LWC-WC-1015, although with the local district office of the Office of Workers’ Compensation, rather than with the central office in Baton Rouge. Considering the continuing jurisdiction of the workers’ compensation judge under La. R.S. 23:1310.8, “including the right to require physical examinations as provided for in [La.] R.S. 23:1123,” we conclude that Gaylord and Continental did not err in doing so. Given the current unsettled state of the law, we hold that a request for an IME under La. R.S. 23:1123 in a case involving “the receipt by [an injured employee] of payments under [the Louisiana Workers’ Compensation Act]” (La. R.S. 23:1121(A)), where there is no pending disputed claim, may be filed either directly with the director or with the workers’ compensation tribunal under its continuing jurisdiction of the original claim. See Romero, supra. Ultimately, the language of the law must control over strict adherence to the language of administrative forms, which serve only to implement the law.

The request and motion of Gaylord and Continental for an IME under La. R.S. 23:1123 was improperly denied on jurisdictional grounds, as the workers’ compensation tribunal and the WCJ had continuing jurisdiction of the original claim for compensation for purposes of considering the request. See La. R.S. 23:1310.8(A)(1). The WCJ’s judgment denying the request and motion was incorrect and is reversed, and this matter is remanded for further proceedings.

Under Louisiana law, attorney fees are not recoverable as damages or costs of litigation except where authorized by statute or contract. Whiddon v. Livingston Parish Council, 04-1126, pp. 4-5 (La.App. 1st Cir.5/6/05), 915 So.2d 863, 866. Awards of penalties and attorney fees in workers’ compensation cases are essentially penal in nature, and are imposed to deter | inindifference and undesirable conduct by employers and their insurers toward injured workers. Trahan v. Coca Cola Bottling Co. United, Inc., 04-0100, p. 17 (La.3/2/05), 894 So.2d 1096, 1108. For such penalties and attorney fees to be awarded, there must be a breach of a statutory duty upon which such an award may be based.

The only authority for the imposition of sanctions cited by Mr. Short in his post-hearing memorandum was La. C.C.P. art. 863, but the WCJ did not cite that codal article or any other statutory authority in her judgment or written reasons. On appeal, Mr. Short urges that the sanctions were imposed by the WCJ under the authority of La. C.C.P. art. 863.

Louisiana Code of Civil Procedure article 863 authorizes the imposition of sanctions upon an attorney or party for violation of the standards of pleading set forth in the article, including certification that the pleading is not presented for an improper purpose, that its assertions are warranted by law, and that its factual allegations have evidentiary support. Article 863 does not empower a trial court to impose sanctions simply because a particular argument or ground for relief is subsequently found to be unjustified; failure to prevail does not trigger an award of sanctions. The article is intended to be used only in exceptional circumstances; where there is even the slightest justification for the assertion of a legal right, sanctions are not warranted. Stroscher v. Stroscher, 01-2769, p. 8 (La.App. 1st Cir.2/14/03), 845 So.2d 518, 526. A trial court’s determination regarding the_J_yimposition of sanctions is subject to the manifest error or clearly wrong standard of review. Id.

There is no support whatsoever in the record for the WCJ’s conclusion that Gay-lord and Continental inappropriately used Form LWC-W C-1008 “to force a court[-]appointed IME without any pending [disputed [c]laim” or used “the provisions of La. R.S. 23:1124.1 [sic] as the vehicle to get into court.” If the petitioners’ counsel in fact committed any error in the use of a particular form (Form LWC-WC-1008), such error was excusable, as it was indisputably prompted by the erroneous instructions of the district office of the Office of Workers’ Compensation after the initial filing of the IME request using the correct form. Such excusable error (if it is assumed to be error) certainly does not in any way rise to the level of sanctionable conduct proscribed by La. C.C.P. art. 863. As it is likewise indisputable that Mr. Short in fact strenuously opposed the requested IME, the referral of this matter to the WCJ pursuant to La. R.S. 23:1317.1(F), through the filing of a Form LWC-WC-1008, was inevitable. Mr. Short was not thereby forced to incur unnecessary legal expenses and “undue hardship and stress,” as the WCJ erroneously concluded.

Because the record of this matter does not support a finding that Gaylord, Continental, or their attorney violated the standards of La. C.C.P. art. 863, and neither Mr. Short nor the WCJ point to any other statutory basis for the assessment of the sanctions imposed, the WCJ’s award of attorney fees is both manifestly and legally erroneous and is also reversed.

DECREE

The judgment of the Office of Workers’ Compensation, District 6, denying the request of the petitioners, Gaylord Chemical Corporation and | ^Continental Casualty, for an independent medical examination under La. R.S. 23:1123 and awarding attorney fees to the employee, Jerome Milton Short, is reversed. This matter is remanded to the Office of Workers’ Compensation, District 6, for further proceedings consistent with this opinion. The Office of Workers’ Compensation, District 6, is directed to either re-file the original Form LWC-WC-1015 submitted by the petitioners on July 20, 2010, together with any new or updated reports, or to permit the petitioners to file a new completed Form LWC-WC-1015, and is further directed to conduct a new hearing on the petitioners’ request for an independent medical examination pursuant to La. R.S. 23:1317.1(F), under the Form LWC-WC-1008 previously filed by the petitioners on August 11, 2010. All costs of this appeal are assessed to the defendant-appellee, Jerome Milton Short.

REVERSED AND REMANDED, WITH INSTRUCTIONS.

      . Acts 2010, No. 3, § 1, effective May 11, 2010, added "capacity to work, or the current medical treatment for the employee” after "condition of the employee.” The remaining language is unaltered from the statute’s last amendment in 1989.

      . This statute was enacted by Acts 1995, No. 328, § 1, effective June 16, 1995.

      . At the conclusion of the hearing, counsel for Gaylord and Continental specifically inquired of the WCJ the statutory basis for the requested imposition of sanctions, for purposes of preparation of his post-hearing memorandum on that issue. The WCJ replied, "You’re responding to whatever they [Mr. Short's counsel] wrote and said today.” In his original pre-hearing memorandum in support of his motion for sanctions and in his oral argument, Mr. Short had made no reference to any statutory or codal authority.

      . Mr. Short did not present any testimony or other evidence at the hearing of his alleged "undue hardship and stress”, but only the argument of his counsel.


author: McClendon, j.

text:
    Ian Douglas LINDSEY v. Charles C. FOTI, Jr., individually and as Attorney General, State of Louisiana.
    No. 2011 CA 0426.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 9, 2011.
    Rehearing Denied Dec. 13, 2011.

      J. Arthur Smith, III, Seth M. Dormer, Baton Rouge, LA, for Plaintiff/Appellant Ian Douglas Lindsey.
    Jack K. Whitehead, Jr., John-Ed L. Bishop, Baton Rouge, LA, for Defendant/Appellee Charles C. Foti, Jr., individually and in his capacity as Attorney General for the State of Louisiana, Department of Justice.
    Before PETTIGREW, McCLENDON, and WELCH, JJ.
   McClendon, j.

[2In this disability discrimination action, the plaintiff appeals the grant of summary judgment in favor of the defendant, dismissing his claims with prejudice. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL HISTORY

The plaintiff, Ian Douglas Lindsey, was an Assistant Attorney General with the Department of Justice for the State of Louisiana from January 1980 until his termination on July 18, 2005. Mr. Lindsey’s work was primarily in the environmental law area, and at the time of his termination, he was assigned to the Public Protection Division, Environmental Section.

The facts surrounding Mr. Lindsey’s termination are essentially undisputed. In the summer of 2005, the office spaces of existing employees were being reassigned because of the hiring of new employees. Mr. Lindsey’s office was one of those being relocated. On June 15, 2005, during the move, Mr. Lindsey became hostile and belligerent and used profanities directed toward certain co-workers. When questioned later by Isabella Wingerter, Director of the Public Protection Division and his supervisor, Mr. Lindsey confirmed that he had used profanities during the incident. He also stated to Ms. Wingerter that he would “Choke the Bitch,” referring to Sonja Anderson, the co-worker who made the complaint, and that Ms. Anderson did not know who she was playing with. Ms. Wingerter referred the matter to Tris Lear, Deputy Director of the Investigations Division of the Office of Internal Affairs, and on June 16, 2005, Mr. Lindsey was interviewed by Special Agent James Betbeze and Rodley Henry, Deputy Director of the Public Protection Division. During the interview, Mr. Lindsey was advised that he could make an oral statement, but he chose not to do so. However, when questioned, he admitted using profanities towards his coworkers. Mr. Lindsey was also asked at that time to submit a typed or handwritten statement regarding the events of June 15, 2005. That same day, Mr. Lindsey was placed on administrative leave with pay pending the investigation and a determination of the appropriate course of action.

|sAs of July 15, 2005, Mr. Lindsey had not provided a written statement of the events in question, and on that date, Nicholas Gachassin, Jr., First Assistant Attorney General, contacted Mr. Lear requesting that Mr. Lindsey be terminated effective July 18, 2005.

On July 18, 2005, Mr. Lindsey met with Mr. Lear, Mr. Henry, and Judy Stout, Deputy Director of Human Resources. At the meeting, Mr. Lindsey admitted using profanities on June 15, 2005. When asked if he had prepared a written statement, Mr. Lindsey stated that he had not. At that time, Mr. Lindsey was advised that he was being terminated from employment for misconduct.

Mr. Lindsey filed this lawsuit on July 14, 2006, against Charles C. Foti, Jr., individually and in his official capacity as the Attorney General for the State of Louisiana, alleging that at all relevant times he was an otherwise qualified disabled individual within the meaning of Louisiana’s Employment Discrimination Law (LEDL), LSA-R.S. 23:301, et seq. Mr. Lindsey asserted that his impairment resulted from the post traumatic stress disorder (PTSD) he sustained while fighting in combat in Vietnam. He also asserted that his supervisors were well aware of the nature and extent of his disability, but nevertheless, he was discharged for using profanity, which was merely a manifestation of his PTSD. Mr. Lindsey alleged that his disability was unrelated to his ability to perform the essential duties of his position and that he had successfully performed the duties of his position for more than twenty-five years. He further contended that profanity was prevalent in the workplace and to his knowledge no nondisabled employees were terminated for a single instance of the use of profanity. Mr. Lindsey alleged that his discharge was in violation of the LEDL, and he asked for compensatory, as well as punitive, damages, reasonable attorney fees, and costs.

Defendant answered the petition, denying the allegations. Thereafter, on January 21, 2010, defendant filed a motion for summary judgment, maintaining that defendant had a legitimate nondiscriminatory reason for Mr. Lindsey’s termination, namely his misconduct, including the failure to cooperate in the | investigation of the events of June 15, 2005. Defendant further claimed that Mr. Lindsey failed to present any evidence that his termination for misconduct was a pretext for discrimination due to Mr. Lindsey’s disability.

Following a hearing on October 25, 2010, the trial court granted defendant’s motion for summary judgment, and judgment was signed on November 8, 2010, dismissing Mr. Lindsey’s claims with prejudice. Mr. Lindsey appealed, asserting that the trial court erred in granting the motion for summary judgment and in failing to utilize the mixed motive framework in analyzing the motion.

APPLICABLE LAW

A motion for summary judgment will 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 of material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B. Summary judgment is favored and shall be construed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966 A(2).

The initial burden of proof remains with the movant. If the moving party will not bear the burden of proof at trial on the matter, that party’s burden on a motion for summary judgment is to point out an absence of factual support for one or more essential elements of the adverse party’s claim, action, or defense. Once the mov-ant has met his initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. LSA-C.C.P. art. 966 C(2). The nonmoving party may not rest on mere allegations or denials but must set forth specific facts that show that a genuine issue of material fact remains. If the nonmoving party fails to meet this burden, there is no genuine issue of material fact, and the movant is entitled to summary judgment as a matter of law. Davis v. Peoples Benefit Life Ins. Co., 10-0194, p. 5 (La.App. 1 Cir. 9/10/10), 47 So.3d 1033, 1035, writ denied, 10-2440 (La.12/17/10), 51 So.3d 11; see LSA-C.C.P. art. 966 C(2).

|aAn appellate court reviews a district court’s decision to grant a motion for summary judgment de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Davis, 10-0194 at p. 6, 47 So.3d at 1036. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is “material” for summary judgment purposes can be seen only in light of the substantive law applicable to the case. Anderson v. State Farm Fire & Cas. Ins. Co., 10-0036, p. 4 (La.App. 1 Cir. 7/16/10), 42 So.3d 1140, 1143.

With regard to the present matter, LSA-R.S. 23:323 provides, in pertinent part:

A. No otherwise qualified disabled person shall, on the basis of a disability, be subjected to discrimination in employment.
B. An employer, labor organization, or employment agency shall not engage in any of the following practices:
(2) Discharge or otherwise discriminate against an otherwise qualified disabled person with respect to compensation or the terms, conditions, or privileges of employment on the basis of a disability when it is unrelated to the individual’s ability to perform the duties of a particular job or position.

As set forth in LSA-R.S. 23:322(3), a disabled person is “any person who has a physical or mental impairment which substantially limits one or more of the major life activities, or has a record of such an impairment, or is regarded as having such an impairment.” Further, an “otherwise qualified disabled person” means a disabled person who, with reasonable accommodation, can perform the essential functions of the employment position that such person holds or desires. LSA-R.S. 23:322(8).

To defeat a motion for summary judgment against an employment disability claim, the claimant must establish a prima facie case that 1) he has a disability, as defined by the statute, 2) he is qualified for the job, and 3) an adverse employment decision was made solely because of the disability. Thomas v. Louisiana Casino Cruises, Inc., 03-1937, p. 3 (La.App. 1 Cir. 6/25/04), 886 So.2d 468, 470, writ denied, 04-1904 (La.10/29/04), 885 So.2d 598; Hook v. Georgiar-Gulf Corp., 99-2791, p. 8 (La.App. 1 Cir. 1/12/01), 788 So.2d 47, 53, writ denied, 01-1098 (La.6/1/01), 793 So.2d 200.

The Louisiana statutes are similar to the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq. Thus, in interpreting Louisiana’s employment discrimination laws, our courts have relied upon similar federal statutes and the interpreting federal jurisprudence. Smith v. Thurman Oils, Inc., 06-0743, p. 4 (La.App. 1 Cir. 12/28/06), 951 So.2d 359, 361, writ denied, 07-0207 (La.3/23/07), 951 So.2d 1106; Thomas, 03-1937 at p. 3, 886 So.2d at 470.

DISCUSSION

In filing the motion for summary judgment, defendant argued that Mr. Lindsey’s termination was due to his misconduct. Defendant further claimed that Mr. Lindsey failed to establish a prima facie claim of disability discrimination under LSA-R.S. 23:323 and failed to present evidence that his termination was pretex-tual for discrimination because of his PTSD.

In support of the motion, defendant offered several affidavits, including that of Mr. Lear, with his accompanying memorandum concerning the investigation, with attached employee statements. Defendant also submitted the affidavits of Mr. Ga-chassin, Ms. Anderson, Ms. Wingerter, Mr. Henry, Mr. Betbeze, and Mandy Le-Grange, a secretary who witnessed the incident on June 15, 2005. Defendant also offered a copy of an informal discussion letter by the U.S. Equal Employment Opportunity Commission regarding the ADA, the definition of disability, reasonable accommodation, and employee misconduct.

Mr. Lindsey argued, however, that PTSD is a mental disability afforded the protections of the ADA and therefore he only needed to prove that his disability played a part in defendant’s decision. He asserted that his use of inappropriate language under circumstances he perceived to be stressful was caused by his PTSD. Mr. Lindsey also contended that he was the only assistant attorney general ever terminated for inappropriate language. He also maintained that the failure to cooperate in the investigation was a non-legitimate contrived reason |7for his discharge because there was no work rule requiring him to submit a written statement.

In opposition to the summary judgment motion, Mr. Lindsey submitted a copy of extracts of his records with the U.S. Department of Veteran Affairs, the affidavit of Eric A. Whitfield, Mr. Lindsey’s treating PTSD psychiatrist in 2004 and 2005 at the VA hospital in New Orleans, the affidavit of John B. Sheppard, Jr., Mr. Lindsey’s supervisor as the Director of the Public Protection Division for more than fifteen years prior to his retirement, and excerpts from the depositions of Neomie Savoy, Human Resource Manager for the Department of Justice, Mr. Gachassin, Ms. Wingerter, and Mr. Foti, as well as excerpts from his own deposition. Mr. Lindsey also submitted a copy of the diagnostic definition of PTSD.

In granting the motion for summary judgment, the trial court, in oral reasons, initially concluded that PTSD is in fact a disability contemplated by the ADA. It then undertook the three-prong analysis required of a plaintiff in a discrimination case. The court found that Mr. Lindsey suffered from a disability and that his employer was aware of the disability. However, the court concluded that the third prong of the analysis was not met, stating that Mr. Lindsey’s discharge was “based upon safety issues and threats that were made, coupled with a refusal to cooperate.” The trial court found that there was a legitimate nondiseriminatory reason given by the defendant for the termination in this case. Once that was given, the burden shifted to Mr. Lindsey to prove that it was pretextual, and the court found no proof that the discharge was pretextual in any way. Accordingly, the trial court granted defendant’s motion for summary judgment.

Upon our de novo review of the record, we agree that summary judgment was appropriate. Once defendant pointed out the absence of an essential element of plaintiffs case, the burden shifted to Mr. Lindsey to make a prima facie case of disability discrimination under the LEDL. Because we find that Mr. Lindsey failed to show that the decision to terminate his employment was made 1 «solely because of his disability, we need not address whether he was limited in any of his major life activities and was disabled within the definition under the LEDL.

Although Mr. Lindsey argues that his misconduct was caused by his disability and therefore the adverse employment action was taken because of his disability, the LEDL does not provide protection for Mr. Lindsey’s unacceptable and threatening conduct. The first circuit has adopted the position that our antidiscrimi-nation law does not insulate an employee’s emotional outbursts at work blamed on an impairment. Hook, 99-2791 at p. 12, 788 So.2d at 55. See also Hamilton v. Southwestern Bell Telephone Co., 186 F.3d 1047, 1052 (5th Cir.1998). After a thorough de novo review of the record, we conclude that the basis of Mr. Lindsey’s discharge was not discrimination based on his PTSD, but was rather his inappropriate and hostile behavior in a workplace environment, as well as his failure to cooperate in the investigation. As this court recognized in Hook, Louisiana’s antidiscrimination law is not a job insurance policy, but rather a legislative scheme for correcting illegitimate inequities faced by the disabled. An employer must be permitted to terminate its employee on account of egregious misconduct, irrespective of whether the employee is disabled. The act cannot be interpreted to require an employer to accept egregious behavior by a disabled employee when that same behavior, exhibited by a nondisabled employee, would require termination. Thus, firing an employee for conduct caused by his disability is not the equivalent of firing the employee for the disability. Hook, 99-2791 at pp. 13-14, 788 So.2d at 56.

In the Hamilton case, a case factually similar to the present matter, the employee, Hamilton, verbally abused and struck a co-worker on the job. He was terminated for violating the policy on workplace violence. Hamilton filed suit under the ADA and asserted that his conduct was caused by PTSD. The Fifth |aCircuit disagreed, finding that Hamilton was not terminated because of his disability but rather because he violated his employer’s policy on workplace violence. The court stated:

Although Hamilton argues that the incident was caused by his PTSD, we are persuaded that the ADA does not insulate emotional or violent outbursts blamed on an impairment. An employee who is fired because of outbursts at work directed at fellow employees has no ADA claim.
The cause of Hamilton’s discharge was not discrimination based on PTSD but was rather his failure to recognize the acceptable limits of behavior in a workplace environment. The nature of the incident, shown by the record, presents a clear case in which Hamilton was fired for his misconduct in the workplace. We adopt for an ADA claim the well-expressed reasoning applied in the context of a protected activity-retaliatory discharge claim: the rights afforded to the employee are a shield against employer retaliation, not a sword with which one may threaten or curse supervisors. Hamilton can not hide behind the ADA and avoid accountability for his actions.

Hamilton, 136 F.3d at 1052.

In the case sub judice, Mr. Lindsey has admitted that he used profanity and made a threatening statement regarding a coworker in the workplace. Additionally, an investigation was commenced, the basis of the inquiry being “To Determine if Mr. Ian Lindsey was an instrument in contributing to a Hostile Working Environment by using profanities and acting belligerent [sic] at the Workplace.” In his affidavit, Mr. Lear stated that Mr. Lindsey failed to cooperate in the initial interview on June 16, 2005, and that Mr. Lindsey was asked to make a written or typed statement containing his version of the June 15, 2005 incident. Mr. Lear further attested that as of July 18, 2005, Mr. Lindsey had not provided a statement. Mr. Henry also stated in his affidavit that on June 16, 2005, Mr. Lindsey was told that he could make an oral statement at the interview, but Mr. Lindsey chose not to do so. Whether Mr. Lindsey was discharged for the use of profanities and making a threatening statement, or for his failure to fully cooperate in the investigation, we do not find that he was discharged based on disability. Accordingly, we find no error in the grant of the defendant’s motion for summary judgment.

| ^CONCLUSION

For the above and foregoing reasons, the November 8, 2010 judgment of the trial court, dismissing Mr. Lindsey’s claims with prejudice, is affirmed. Costs of this appeal are assessed to the plaintiff, Ian Douglas Lindsey.

AFFIRMED.

      . The Hook court considered a claim filed under the Louisiana Human Rights Act of 1988 (LHRA), LSA-R.S. 51:2231, et seq., which made unlawful discriminatory practices in employment. Sections 51:2242 through 2245 of the LHRA were repealed by Acts 1997 No. 1409, § 4, effective August 1, 1997, and were replaced by Sections 23:301, et seq. of the LEDL. See Pierce v. State, Office of Legislative Auditor, 07-0230, p. 12 n.3 (La.App. 1 Cir. 2/8/08), 984 So.2d 61, 70 n. 3, writ denied, 08-0542 (La.4/25/08), 978 So.2d 369.


author: DECUIR, Judge.

text:
    Steve CROOKS, et ux. v. STATE of Louisiana, DEPARTMENT OF NATURAL RESOURCES.
    No. 11-920.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 7, 2011.

      James J. Davidson III, Christopher J. Piasecki, Davidson, Meaux, Sonnier, McElligott, Fontenot, Gideon & Edwards, Lafayette, LA, V. Russell Purvis, Smith, Taliaferro & Purvis, Jonesville, LA, J. Michael Veron, Alonzo P. Wilson, J. Rock Palermo, Veron, Bice, Palermo & Wilson, LLC, Lake Charles, LA, Robert G. Nida, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Plaintiffs/Appellants, Steve Crooks, Era Lea Crooks.
    Albin A. Provosty, Provosty, Sadler, de-Launay, Fiorenza & Sobel, Alexandria, LA, for Defendant/Appellee, State of Louisiana, Department of Natural Resources.
    Court composed of OSWALD A. DECUIR, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   DECUIR, Judge.

|, This class action lawsuit was filed by the named plaintiffs, Steve and Era Crooks, against the State of Louisiana, Department of Natural Resources, seeking a determination of the ownership of the lands located in the Catahoula Basin, commonly referred to as Catahoula Lake. The determinative issue in the case is the legal classification of Catahoula Lake as a lake or as a river or stream. The trial court granted the State’s motion for partial summary judgment on this issue and rendered the following oral ruling:

For oral reasons this day handed down, the Court finds that partial summary judgment is appropriate as to the issue of classification of the body of water referred to as Catahoula Lake. This is a class action suit. Plaintiffs seek to have all lands above the ordinary low water mark of Little River or its tributaries, and within the area known as Catahoula Lake to be declared owned by the class in accordance with Louisiana’s laws of riparian ownership. Defendant argues that the Third Circuit Court of Appeal made a legal determination in Sanders v. State, Department of Natural Resources, 2007-821 (La.App. 3 Cir. 12/19/07), 973 So.2d 879, that the water body at issue in this case is, as a matter of law, a lake as defined under the Louisiana Civil Code. Accordingly, the defendant presents to the court that it is the law of the Third Circuit Court of Appeals [sic] that the body of water at issue is classified as a lake.
In opposition, the plaintiffs assert that the defendant is in effect arguing res judicata, which prevents relitigation of the same issue between the same parties; however, the court need not rely on the doctrine of res judicata. In McCormick Oil & Gas Corporation v. Dow Chemical Company, 489 So.2d 1047 (La.App. 1 Cir.1986), citing State v. Placid Oil Co., 300 So.2d 154 (La.1974), the First Circuit Court of Appeal held that the determination that a body of water is a lake as opposed to a stream is a legal finding. The court finds that the classification of Catahoula Lake is a legal issue. In Sanders, the Third Circuit Court of Appeals [sic] made the determination that the body of water commonly referred to as Catahoula Lake is legally classified as a lake. Sanders, 973 So.2d at 882. This court being bound to follow its immediate supervisory court on matters of law grants the partial motion for summary judgment.

In this appeal, Plaintiffs contend summary judgment was improper because the Sanders decision is not a valid basis for determining the ownership interests of the plaintiffs in the instant case. They argue that the Sanders court did not | ^consider the legal characterization of the Catahoula water body as a lake or a river. Rather, the appellate court simply stated that all parties agreed it is a lake; therefore, it is a lake.

The Sanders decision does indeed address the essential characteristics of Cata-houla Lake. The court explores its historical designation in official documents and states that it was navigable in 1812 when Louisiana acquired ownership of the beds of its natural navigable water bodies up to their high water marks. The court also discusses the size of Catahoula Lake, its channel, and tributaries. It discusses whether the lake is intermittent versus perennial. The Sanders court reviewed numerous surveys, studies, observational accounts, and government documents which describe Catahoula Lake, and the court compared it to the body of water legally characterized as a lake in State v. Placid Oil Co., 300 So.2d 154 (La.1973).

Nevertheless, in Sanders, the fundamental question of whether Catahoula Lake is a lake or a river was not in dispute. It was not an adjudicated issue; rather, the trial court made a finding that the water body was a lake, but the only disputed question on appeal was the correct level of the high water mark. In fact, the author of the Sanders opinion wrote, “No one disputes the trial court’s finding that Cata-houla Lake is a lake.... ” Sanders, 973 So.2d at 882.

Courts in Louisiana have the authority to revisit previous determinations of law, and we believe the trial court in the instant case made an incorrect decision to follow the Sanders pronouncement in a summary judgment proceeding. The legal characterization of real property determines ownership thereof, and the myriad of consequences that flow therefrom. The experts hired by the plaintiffs in this case have concluded Catahoula Lake is not a lake; the State’s experts say that it is a lake. Both sides have evidence to produce at trial on the merits. We find the parties 13have presented a genuine issue of material fact; therefore, summary judgment must be denied.

In McCormick Oil & Gas Corp. v. Dow Chemical Co., 489 So.2d 1047 (La.App. 1 Cir.1986), the first circuit followed a decision of the supreme court which delineated Grand Lake as a lake. The McCormick court declined to revisit the question of whether Grand Lake was a lake or a river, deciding instead that the issue was previously resolved. In this case, we decline to follow a decision in which the relevant issue was not adjudicated.

For the above and foregoing reasons, the judgment of the trial court is reversed. This matter is remanded for trial on the merits. The assessment of costs will await the final outcome of this hotly contested matter.

REVERSED AND REMANDED.


text:
    Michael SMITH, et ux. v. ST. LANDRY PARISH SOLID WASTE DISPOSAL DISTRICT, et al.
    No. 11-946.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 7, 2011.
    Rehearing Denied Feb. 1, 2012.
    Michael C. Palmintier, Degravelles, Pal-mintier, Holthaus, & Frugé, L.L.P., Baton Rouge, LA, for Plaintiffs/Appellants, Michael Smith, Ernesta Smith.
    James D. Hollier, Jason T. Reed, La-borde & Neuner, Lafayette, LA, for Defendants/Appellees, St. Landry Parish Solid Waste Disposal District, Katry Martin.
    Court composed of OSWALD A. DECUIR, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   DECUIR, Judge.

|, Michael and Ernesta Smith filed suit against the St. Landry Parish Solid Waste Disposal District and its supervisor, Katry Martin, after their son, Martel Smith, was killed while working at the St. Landry Sanitary Landfill. The trial court granted summary judgment in favor of the defendants, finding the Smiths failed in their burden of proving the intentional act exception .to workers’ compensation immunity. The Smiths appealed, and for the following reasons, we affirm.

Ón April 22, 2008, Martel Smith was working with fourteen other employees at the landfill, a two-hundred acre site with restricted access to the public. Martel was assigned to dump canisters that day and was working alone using a Mack Eco-nodyne roll off truck with a tilting bed operated by a hoist mechanism. In the early afternoon, another employee found Martel crushed between the hoist and the frame of the truck. Several workers freed Martel and placed his body on the ground nearby. Efforts to resuscitate him were unsuccessful.

A number of Martel’s co-employees were perplexed by the accident, testifying by deposition that Martel could not have operated the controls himself in the position in which he was discovered. Other employees thought it possible that Martel might have climbed onto the frame to investigate something on the truck and his leg could have accidentally engaged the controls. The plaintiffs’ expert explained that the controls have to be held down continuously with constant pressure or a spring mechanism will stop the movement of the hoist and return the bed to its original position. The expert opined that a third party must have been involved, as Martel could not have engaged the hoist on his own. All co-employees testified by deposition or affidavit that they were not present at the time Lof Martel’s death and had no knowledge of any other person who may have witnessed the events leading up to Martel’s death. The repair records in evidence point to no malfunction in the truck, and it was put back into service at the landfill after the accident.

The Smiths contend the defendants are responsible for an intentional act which caused Martel’s death and serves as an exception to the workers’ compensation exclusive remedy provisions. Essentially, they suggest Martel was murdered by an unnamed co-employee. That employee, identified only as John Doe, must have lured Martel into a position between the hoist and the frame of the truck, then held down the controls for nearly a minute while Martel remained in position as the bed slowly came down on him. The trial court found the Smiths failed to set forth specific facts demonstrating a genuine issue of material fact, and summary judgment was granted in the defendants’ favor. The trial court characterized the plaintiffs’ theory as the stringing of speculative possibilities insufficient to meet the shifting burden of proof on summary judgment.

In order to establish the intentional act exception, a plaintiff must show that the employer “either 1) consciously desires the physical result happening from his conduct, or 2) knows that the result is substantially certain to follow from his conduct.” Smith v. Tanner Heavy Equipment Co., Inc., 01-886, p. 1 (La.6/15/01), 790 So.2d 615, 615. In support of their motion for summary judgment, the defendants presented the testimony of Martel’s co-employees, each of whom stated that he was not near Martel at the time of his death and did not cause or contribute to his death in any way. By showing that no one employed by the landfill was near Martel at the time of the accident, the defendants argue that the employer could not have consciously desired his death or known that his death was substantially certain to follow some undescribed conduct. This undisputed evidence ^demonstrated no issue of material fact with regard to the actions of the co-employees.

The burden of proof then shifted to the plaintiffs to set forth specific facts which demonstrate a genuine issue for trial. The Smiths argue that each co-employee’s statement fails to negate the possibility that another employee could have caused the death. They also rely on their expert’s opinion that Martel, more likely than not, could not have caused his own death. These are not specific facts. Throughout the record, there are suggestions as to what might have caused Martel’s death: a practical joke gone awry, murder by a co-employee, murder by a member of the public in an unauthorized area, suicide, mechanical failure, or Martel’s leg inadvertently engaging the controls while he examined something on the truck. The Smiths have been unable to set forth any specific facts which would prove one theory over another.

Accordingly, we find no error in the determination that summary judgment was appropriate in this case. The plaintiffs cannot sustain their burden of proof with mere possibilities. Even relying on the truth of the expert opinion that Martel “more likely than not” could not have caused his own death does not establish a genuine issue regarding the employer’s alleged intentional and conscious desire to cause Martel’s death. This court addressed the plaintiffs burden of proof in a similar intentional act case:

Even if Plaintiffs succeed in demonstrating the presence of some remaining asbestos in the work area, which Constructors vehemently denies, the Plaintiffs have not presented any facts to raise a genuine dispute that Constructors intentionally and consciously desired that they be exposed to asbestos or that Constructors knew, that by requiring Plaintiffs to continue on the job, exposure to asbestos was inevitable or substantially certain to occur.
In support of its motion for summary judgment, Cleco offered the affidavits of its own representatives stating that Constructors was responsible for the renovation work and denying any intent on the part of Cleco to expose Plaintiffs to asbestos. The Plaintiffs did not offer |4any evidence to refute the affidavits of Cleco. Accordingly, we affirm the decision of the trial court granting Constructors and Cleco’s motion for summary judgment.

Vidrine v. Constructors, Inc., 06-544, p. 9 (La.App. 3 Cir. 3/21/07), 953 So.2d 193, 199, writs denied, 07-821, 07-883 (La.6/15/07), 958 So.2d 1189, 958 So.2d 1196.

Additionally, we reject the plaintiffs’ suggestion that the doctrine of res ipsa loquitur encompasses their allegations of an intentional act. To the contrary, res ipsa loquitur, by definition, contemplates an inference of negligence on the part of the defendant if certain eviden-tiary criteria are met. For instance, if the circumstantial evidence “sufficiently eliminates other possible causes of the injury, such as the plaintiffs own responsibility or the responsibility of others,” then the rule of res ipsa loquitur may be invoked, if other criteria are met, to allow the jury to infer negligence. Linnear v. CenterPoint Energy Entex/Reliant Energy, 06-3080, p. 12 (La.9/5/07), 966 So.2d 36, 45. See also, Cangelosi v. Our Lady of the Lake Reg’l Med. Ctr., 564 So.2d 654 (La.1990).

The evidence presented in this case does not eliminate other possible causes of Martel’s death. Further, the res ipsa loquitur doctrine does not encompass a defendant’s intent and is simply inapplicable in an intentional act case.

For the above and foregoing reasons, the judgment of the trial court is affirmed. Costs of the appeal are assessed to the plaintiffs.

AFFIRMED.


text:
    Isom T. ROY v. CITY OF LAKE CHARLES. Lake Charles Memorial Hospital (Isom T. Roy) v. City of Lake Charles.
    No. 11-989.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 7, 2011.

      Mark Zimmerman, Attorney at Law, Lake Charles, LA, for Plaintiff/Appellee, Isom T. Roy.
    Christopher E. John, Assistant City Attorney, Lake Charles, LA, for Defendant/Appellant, City of Lake Charles.
    John J. Simpson, Ross M. Raley, Stock-well, Sievert, Viccellio, Clements & Shad-dock, L.L.P., Lake Charles, LA, for Defendant/Appellee, Lake Charles Memorial Hospital.
    Court composed of OSWALD A. DECUIR, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   DECUIR, Judge.

bln these consolidated cases, Employer appeals a judgment of the workers’ compensation judge finding a compensable injury and awarding, medical expenses, penalties and attorney fees.

FACTS

Isom Roy (Roy) was a sewer plant pump mechanic, employed by the City of Lake Charles (the City). On Friday, June 19, 2009, Roy was injured when a large metal tube fell on his left foot, while installing an ornamental steel fence in his back yard. The skin was broken in the accident. All agree that this injury was not work-related.

On Monday, June 22, 2009, Roy was working on a job at a plant site belonging to the City. While welding some handrails on a catwalk, he was required to work with his left foot submerged to the ankle in untreated sewer water. Subsequently, a severe staph infection developed in Roy’s foot. The City insists that the infection could have come from anywhere, and that Roy did not produce sufficient evidence that the infection was related to his work in the sewer plant.

The only medical evidence presented was the testimony of Roy’s treating physician, Dr. Mark Lafuria, an internist. Dr. Lafuria acknowledged that it would be practically impossible for him, or any other physician, to state with absolute medical certainty the precise origin of any staph infection. However, Dr. Lafuria stated clearly and repeatedly, that in this case, he could conceive of no other cause of infection more explainable and reasonable than the untreated sewer water in which Roy’s wound was soaked.

The infection was very serious, and the surgery required to eradicate the infection resulted in residual nerve damage and numbness. Dr. Lafuria never indicated that Roy had recuperated to the point where he could return to work. |2Lake Charles Memorial Hospital provided medical treatment to Roy in the stipulated amount of $5,467.45. Roy and Lake Charles Memorial Hospital filed disputed claims for compensation (Form 1008).

The City received Dr. Lafuria’s medical opinion and decided that Roy did not adequately establish that the sewer water caused his infection. The City relied solely on Dr. Lafuria’s medical report in denying benefits. The workers’ compensation judge found that, in the absence of any medical or other evidence from the City, Roy established by a preponderance of the evidence that the infection was caused by his exposure to the sewer water at work. The workers’ compensation judge further found that the City had failed to adequately investigate the claim. Accordingly, the workers’ compensation judge awarded TTD benefits, SEB’s, all medical benefits, $10,000.00 in penalties and $12,000.00 in attorney fees.

The City lodged this appeal alleging the workers’ compensation judge erred in finding a work-related injury, in failing to analyze this claim as a possible occupational injury, and in awarding penalties and attorney fees. Roy answered the appeal seeking additional penalties and attorney fees for work in connection with this appeal. Lake Charles Memorial Hospital answered the appeal seeking judgment in the amount of $5,467.45 plus penalties and attorney fees.

DISCUSSION

In its first two assignments, the City argues that the workers’ compensation judge erred in finding that Roy’s condition was caused by an identifiable precipitous event or an occupational illness. We disagree.

The claimant seeking workers’ compensation benefits must prove by a preponderance of the evidence that he was injured in an accident in the course and scope of her employment. Bums v. Beauregard Nursing Ctr., 94-131 (La.App. 3 Cir. 10/5/94), 643 So.2d 443. In addition, the claimant must also establish a causal link between the accident and the subsequent disabling condition. Marks v. 81 Lumber Co., 00-322 (La.App. 3 Cir. 10/11/00), 771 So.2d 751. If the evidence leaves the probabilities of causation equally balanced, the claimant has failed to carry his burden of proof. Bernard v. O’Leary Bros. Signs, Inc. (La.App. 3 Cir. 1992), 606 So.2d 1331

The trial court’s determinations with regard to the credibility of witnesses and the discharge of the claimant’s burden of proof are factual issues and should not be disturbed on appeal in the absence of manifest error. Bruno v. Harbert Int’l, Inc., 593 So.2d 357 (La.1992). The workers’ compensation judge’s assessments of the weight of the medical evidence are not to be disturbed unless clearly wrong. Chambers v. Louisiana Pacific Mfg., Inc., 97-1188 (La.App. 3 Cir. 4/22/98), 712 So.2d 608. Furthermore, where there is a conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed unless manifestly erroneous. Novak v. Texada, Miller, Masterson & Davis Clinic, 514 So.2d 524 (La.App. 3 Cir.), writ denied, 515 So.2d 807 (La.1987).

In this case, it is not disputed that Roy’s injured foot was submerged in sewer water. The workers’ compensation judge specifically noted the City’s failure to present contradictory medical evidence. Moreover, he found that Dr. Lafuria’s evidence was not equally balanced but instead supported the claim that Roy’s infection was caused by his foot being submerged in sewer water. We find no manifest error in the workers’ compensation judge’s determination as to causation. Likewise, after reviewing the record, we find no error in the workers’ compensation judge’s finding that Roy carried his burden of proof.

We are also not convinced by the City’s argument that the workers’ compensation judge should have evaluated this case as an occupational injury. It is 14evident from the record that the precipitous event or accident leading to Roy’s injury was the submersion of his wound in sewer water. These assignments of error have no merit.

The City next argues that the workers’ compensation judge erred in awarding penalties and attorney fees. We disagree.

A claimant is entitled to an award of penalties when a claim has not been reasonably controverted, and when defendant’s failure to pay is found to be arbitrary, capricious and without probable cause, attorney fees shall be awarded. La. R.S. 23:1201(F) and La.R.S. 23:1201.2. In the present case, on first glance it might appear that the City reasonably controverted Roy’s claim. However, upon closer review, it is evident that the workers’ compensation judge awarded penalties and attorney fees for City’s failure to reasonably investigate Roy’s claim or seek a second medical opinion. Under these circumstances, we find the award of penalties and attorney fees was proper. This assignment has no merit.

Roy answered seeking additional attorney fees for work done on appeal. We amend the judgment to award Roy an additional $3,500.00 in attorney fees. Lake Charles Memorial Hospital answered seeking judgment in the amount of $5,467.45. for medical expenses as stipulated by the parties, and penalties and attorney fees. The workers’ compensation judge’s judgment provided in pertinent part:

Claimant is entitled to and employer is responsible for reinstating medical benefits, employer is responsible for all reasonable and necessary medical benefits and payment of any outstanding medical expenses related to the work-accident.

We find the use of the term all in reference to claimant’s medical expenses encompasses Lake Charles Memorial Hospital’s stipulated amount of $5,467.45. The judgment also included an award of penalties related to unpaid medical bills and specifically included Lake Charles Memorial Hospital as a provider. With | r,regard to attorney fees, the applicable statute on this issue is La.R.S. 23:1201(F)(4) which states:

In the event that the health care provider prevails on a claim for payment of his fee, penalties as provided in this Section and reasonable attorney fees based upon actual hours worked may be awarded and paid directly to the health care provider.

In this case, counsel for Lake Charles Memorial Hospital failed to provide a fee petition setting out the hours actually worked. The workers’ compensation judge did not abuse his discretion in declining to award the requested attorney fees. Likewise, counsel has failed to request attorney fees for work performed on this appeal, and therefore, we cannot award them.

DECREE

For the foregoing reasons, the judgment of the workers’ compensation judge is amended to award Roy an additional $3,500.00 in attorney fees for work on this appeal. The judgment is affirmed as amended. The City of Lake Charles is taxed with all costs of these proceedings. Pursuant to the requirement of La.R.S. 13:5112(A), we set those costs in the monetary amount of $714.00.

AFFIRMED AS AMENDED.

GENOVESE, J., concurs.