source: Caselaw Access Project

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

license: Public Domain

text:
    Leandez McGEE v. BRAND SERVICES, INC.
    No. 2010-CA-0307.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 2010.
    Charlsey Wolff, Wolff & Wolff, New Orleans, LA, for Plaintiff/Appellee, Leandez McGee.
    Stephen M. Whitlow, Keogh Cox & Wilson, Ltd., Baton Rouge, LA, for Defendant/Appellant, Brand Services, Inc.
    (Court Composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, and Judge TERRI F. LOVE).
   JOAN BERNARD ARMSTRONG, Chief Judge.

| )Brand Services, Inc. (Brand) appeals from a judgment of the Office of Workers’ Compensation, District 8, for the Parish of Orleans. The hearing officer found that the claimant, Leandez McGee, suffered a work-related injury on April 15, 2008, while in the course and scope of his employment by Brand as a scaffold carpenter. Mr. McGee was awarded ongoing medical care necessary and related to the accident in conformity with La. R.S. 28:1203(A) and the guidelines established in the Louisiana Worker’s Compensation Act (LWCA), including lumbar ESIs, facet injections, lumbar CT scan and MMPI. He was awarded Temporary Total Disability (TTD) benefits from April 15, 2008 at the rate of $522.00 per week. The hearing officer found that Brand failed reasonably to controvert Mr. McGee’s claim, and awarded the following penalties:

$2,000.00 for Brand’s failure to pay timely the Radiology Group’s bill dated May 12, 2008;

$2,000.00 for Brand’s failure to institute and timely pay TTD benefits pursuant to La. R.S. 23:1201(F) and the LWCA;

12$2,000.00 for Brand’s failure to authorize timely medical treatment ordered by Dr. Warren Bourgeois, pursuant to La. R.S. 23:1201(F);

$2,000.00 for Brand’s failure to authorize timely treatment by Mr. McGee’s choice of orthopedic surgeon, pursuant to La. R.S. 23:1201(F).

Mr. McGee was also awarded attorney’s fees in the amount of $7,500.00 and all costs of the proceedings. The hearing officer awarded interest on the judgment as provided by law.

ASSIGNMENTS OF ERROR

Brand assigns three errors, contending that (1) the hearing officer applied an inappropriate legal standard to Mr. McGee’s claim of TTD; (2) the hearing officer applied an inappropriate standard of proof to the issue of whether Brand timely approved Mr. McGee’s treatment by Dr. Bourgeois; and (3) the hearing officer’s conclusion that Brand did not reasonably controvert Mr. McGee’s claims is manifestly erroneous.

STANDARDS OF REVIEW

The legal claims set forth in the first two assignments of error are reviewed de novo, and the hearing officer’s factual conclusion concerning Brand’s reasonableness, vel non, in handling the claims is reviewed under the manifest error standard of review. Williams v. Children’s Hospital, 07-0464, p. 2 (La.App. 4 Cir. 1/23/08), 996 So.2d 291, 293, citing Seal v. Gaylord Container Corp., 97-0688, p. 4 (La.12/2/97), 704 So.2d 1161, 1164; Booker v. International Rivercenter, 04-1980 (La.App. 4 Cir. 6/22/05), 905 So.2d 498.

Where legal errors have tainted the fact finding process, the verdict below is not reviewed under the manifest error standard and, if the record is complete, the appellate court may make a de novo review of the record and determine the merits | sof the case, applying the burden of proof appropriate thereto. See, Rosell v. ESCO, 549 So.2d 840, 844 fn. 2; Gonzales v. Xerox Corp., 254 La. 182, 320 So.2d 163 (1975).

APPLICABLE LEGAL PRINCIPLES

The controlling law applicable to this case is found in sub-parts A and B of Part II of the LWCA. In sub-part A, “General Provisions”, La. R.S. 23:1201 provides for the time and place of payment of compensation benefits, the consequences of an employer’s failure to pay and authorize timely, and for penalties and attorney fees. Sub-part B, “Disability Provisions”, provides in La. R.S. 23:1221(1) for compensation for an employee’s TTD, including a definition of TTD and imposing the clear and convincing burden of proof on the employee. Clearly, these provisions are to be read in pari materia.

The judgment does not specifically advert to the TTD standards of proof set forth in La. R.S. 23:1221(1). The record contains neither written nor oral reasons for judgment. Based on the record before this Court, we are unable to determine if the hearing officer applied the clear and convincing burden of proof to the evidence presented at the hearing. The judgment is silent as to the burden of proof |4and TTD standard applied, and we are, therefore, compelled to review the case de novo.

EVIDENCE ADDUCED AT TRIAL

Mr. McGee testified at the hearing that he graduated from Booker T. Washington High School in 1989. Upon graduation he entered the workforce, working offshore with Universal Catering for three years and subsequently as a laborer for Murphy Oil and Mobil Oil for several years. He then obtained training and certification as a pipefitter and worked in that capacity for Boh Brothers for ten years. He then performed a scaffolding job, for which he did not receive any special training, and then worked for BellSouth. He worked for an unidentified company and then for two years offshore for Gulf South Scaffold Company as a carpenter, for which he received on-the-job training. He and his brother, Eugene McGee, then sought and obtained a job around 2007 on land with Brand. They worked for Brand out of Morgan City for five or six months, commuting from New Orleans, whereupon they obtained transfers to the Conoco Phillips Oil Refinery in 2008. Mr. McGee worked with his brother and the other members of his crew, Raul, James, and Pablo at the time of his accident on April 15, 2008. He served as a carpenter, his brother was the lead hand, Pablo was a helper and James was a ground man. Kevin Hunter was in charge of Mr. McGee’s crew and another crew. Mr. McGee’s crew worked four ten-hour shifts, from 6:30 to 5 Mondays through Thursdays. He sometimes worked overtime by staying longer, for which he was compensated at a higher rate for those hours in excess of forty hours per week. He received bonus checks weekly provided the crew members did not have any ^injuries or miss a day during that week. Prior to his accident, neither he nor any other member of his crew were injured on the job, and he received a bonus check every week.

Mr. McGee’s starting hourly rate was $16.01. The weekly bonus was $115.20. This pay scale was in effect on March 30, 2008. Prior to the accident, his hourly rate was increased to $18.89 and the bonus was eliminated. Mr. McGee testified that, when employed by Brand, he made himself available for a full forty-hour week each week, was a full-time employee, but did not receive health care benefits or health insurance.

Mr. McGee testified that on April 15, 2008, he and his crew were working in a heating unit at the Conoco Phillips site, with Mr. Hunter as the foreman. Mr. McGee was in the back of the unit, building a scaffold, with a man identified as Lionel, with the last of the tow boards being used in the process. Raul was in the front pulling on a gate on which he had set a ladder; however, Raul had not secured the ladder bracket, causing the ladder to have no support. Mr. McGee got on the ladder, climbed up about twenty-five feet, and when he put his second D-ring to the ladder, it bent and he fell backward twenty-five feet. His back and left side hit first, and Mr. Hunter caught his head. Then Mr. McGee bounced over and hit the scaffold with the right side of his body. Mr. Hunter’s leg was broken in his attempt to catch Mr. McGee. Within a few days of the accident, the entire crew was laid off or fired at Conoco’s request.

Mr. McGee testified that his right ankle was badly sprained, his left ankle was fractured, he had a bad clot on the side of his thigh, his back was injured, and the ladder hit his neck and cut his nose, requiring stitches. Eugene, James, Pablo and Raul witnessed the accident, with Raul having seen everything, but, Mr. | fiMcGee testified, no one tried to warn him. An ambulance took him to Ochsner Hospital where he was examined and given medication. The Ochsner Medical Center report indicates that Mr. McGee received a prescription for Flexoril, 10 mg three times daily, and Percocet every four hours as needed. He was then taken back to his mother’s home, where he was living, to recover. He remained at his mother’s home on April 16 and 17.

According to Mr. McGee, on April 18, two of Brand’s “safety guys”, one of whom was named Jose, took him and his mother to see Lisa Hawk, M.D. Dr. Hawk noted that Mr. McGee’s ankle was fractured, a fact not noticed at the hospital. He was complaining at the time of pain in his ankles, low back, and right hip, and of the bruise to his thigh. Dr. Hawk examined him, obtained an x-ray of his ankle, prescribed Oxycodone and Flexoril, and provided Mr. McGee with a new set of crutches. Mr. McGee had never taken these medications prior to his accident. Dr. Hawk told him not to drink or drive, and advised him to rest and elevate his leg. The Brand employees returned Mr. McGee and his mother to her home.

According to a Work Status Report of Dr. Hawk’s examination dated April 18, 2008, Mr. McGee had the following capabilities: 100% sitting and grasp/pinch; 50% reach above shoulder; 25% walking, standing, and reach beyond forearm limits; and no capability to bend, squat, twist, crawl, climb, or work on heights. His work status was listed as “may work with restrictions or modifications.”

Mr. McGee testified that on April 22, 2008, one of the Brand employees, Jose, again took him to see Dr. Hawk. She did not discuss his returning to work at that time, and he was still on crutches. Jose stayed with Mr. McGee during the 17examination, but did not discuss returning to work or have any conversation with Dr. Hawk in Mr. McGee’s presence.

According to a Work Status Report of Dr. Hawk’s examination dated April 22, 2008, Mr. McGee had negligible (ten pounds maximum) lift and push capability, eliciting a work level of “sedentary”. He had the following capabilities: 100%: sitting, grasp and pinch; 25% walking or standing; no capability to bend, squat, twist, crawl, climb, work on heights, reach above shoulder, or reach beyond forearm limits. Again, his work status was noted as “may work with restrictions or modifications.” His follow up indicates he was not discharged from care, was to have a return appointment in four to five days, and was referred to physical therapy for evaluation and treatment.

Mr. McGee denied knowledge of the fact that Dr. Hawk had released him to light duty after the initial visit and after the April 22, 2008 visit. He also testified that his medications caused him to lose his memory “in a way”. He had no clear recollection of having undergone an MRI examination, although the medical records evidence such an exam.

According to the report of Thompson M. Dietz, M.D., of Clearview Medical Imaging, dated April 22, 2008 and directed to Dr. Hawk, findings of the MRI of the left thigh were consistent with a significant lateral aspect left thigh muscle contusion involving the vastus lateralis and, less prominently, subjacent vastus intermedius muscles. That MRI indicated overlying broad-based deep subcutaneous elliptical fluid collection consistent with seroma/he-matoma measuring up to 16 cm in length, 11 cm in AP dimension and 2 to 8 cm depth. Furthermore, the left femur appeared intact with a normal, uniform pattern of marrow space signal intensity. The record also contains Dr. Dietz’ report of the |SMRI of Mr. McGee’s hips, with attention to the left side. The report indicated no abnormalities of the joints and no evidence of occult osseous injury, fracture, contusion, or joint effusion. Dr. Dietz reported that an MRI of Mr. McGee’s lumbar spine showed slight lumbar curvature, but otherwise normal alignment and no evidence of spondylolysis or spondylolis-thesis. There was no evidence of occult osseous injury in the lumbar region. The report noted congenital or developmental relative narrowing of the lumbar spinal canal and superimposed mild degenerative changes at L3-4, L4-5 levels, with mild-moderate lower lumbar foraminal narrowing, most prominent at the L5-S1, L4-5 levels.

The record contains a copy of a letter from Casey Dufour, Brand’s Divisional Safety Manager for the New Orleans area, to Mr. McGee dated May 2, 2008. The letter advises Mr. McGee that he had been released to work with restrictions, enclosing the associated paperwork. The letter advised Mr. McGee to report to Brand’s hiring center on Airline Highway in St. Rose, Louisiana for assignment, and provided Mr. Dufour’s contact information. The record contains an unopened certified mail envelope from Brand addressed to Mr. McGee at his address, marked “notified 5-8-09”, “Final Notice”, and “unclaimed.” Mr. McGee and his mother denied having received notice of this mailing. Mr. McGee testified that he did not have any knowledge of a purported job offer from Brand in the weeks following the accident. As of May 2, 2008, he was still on crutches and taking Flexoril and Hy-drocodone, and opined that he would not have been able to work with Brand in any position. Mr. McGee denied having received a job offer either directly from Brand or through his counsel following the accident.

|gOn May 12, 2008, Mr. McGee went to Touro Infirmary’s emergency room with the same back complaints. He testified that he was not scheduled to see Dr. Hawk after the April 22, 2008 appointment, and had not heard further from the Brand safety employees. The Touro doctor examined him, recommended therapy and gave him a prescription for Oxycodone and Flexoril. The emergency room report indicates a prescription for Toridal and Flex-oril. He also received an injection of Tori-dal, and a recommendation that he see a specialist. He remained on crutches from six to eight weeks.

A report of the Touro Department of Radiology from a radiological examination of Mr. McGee’s lumbar spine, dated May 12, 2008, indicates normal alignment and curvature without fracture or subluxation or degenerative changes. The impression given was “normal examination.” The Department’s examination of Mr. McGee’s sacrum also showed no fracture, lytic or blastic changes, and was given a “normal examination” impression. There is no evidence that Mr. McGee sought further treatment during the ensuing four and a half months.

On October 3, 2008, he saw Warren R. Bourgeois, III, M.D., of Audubon Orthopedics and Sports Medicine, complaining of right hip pain. Dr. Bourgeois ordered an MRI of his lower back and left thigh and recommended physical therapy and a blanket MRI. Based on Dr. Bourgeois’ referral, Mr. McGee attended a therapy session with Joseph Shine, Jr., P. T., at the Louisiana State University Medical Center. Mr. McGee testified that the result of that session was that he was in pain and could not move for a while. He discussed the therapy with Dr. 1 inBourgeois, who advised him to discontinue the physical therapy. Dr. Bourgeois gave him prescriptions for pain, and recommended epidural steroid injections (ESI) which Brand denied. Mr. McGee’s testimony that Brand denied the ESIs appears to be based on the results of his independent medical examination by orthopedist Robert A. Steiner, M.D. On March 10, 2009, Dr. Steiner reported to Angela Klemenakis of Broadspire, the firm handling Mr. McGee’s compensation claim on Brand’s behalf, that although Dr. Bourgeois had recommended ESIs and facet blocks for pain management, he disagreed. Dr. Steiner opined, “It is unlikely that facet injections and epidural steroid injections would be helpful for this patient in light of the fact that he is displaying pain-type behavior and there was lack of effort during physical therapy testing. I would not send this patient for ESI or facet injections. He may continue working as a material inspector.”

The record contains physical therapist Shine’s initial evaluation, dated November 13, 2008. Mr. Shine concluded that Mr. McGee had had a significant fall and has findings consistent with lumbar and right hip strain, but his high subjective complaint of pain and uncharacteristic movements with simple tasks such as active and passive motion, light palpation, and general mat mobility “is odd considering the injury occurred 7 months ago. No significant muscular or neurological findings were noted.” Mr. Shine recommended a treatment plan in which Mr. McGee would be seen three times a week for four weeks for lumbar and right hip stabilization exercises, a general conditioning program, stretching, and posture awareness. His goals were to improve pain free lumbar range of motion by lnfifty percent, decrease pain complaints by fifty percent, increase tolerance to physical activity, perform a brief lift test, and ultimately progress to an independent home program.

The record contains a report from Mr. Shine co-signed by Jennifer Culotta, S.P. T., dated November 19, 2008. According to that report, prepared by the physical therapy service to which Mr. McGee’s chosen physician referred him, Mr. McGee continued to report pain with exercise, claiming that he could walk only four to five blocks before his back would hurt. Upon resting, his back stiffened. The technicians reported that Mr. McGee presented to them with an antalgic gait pattern, claiming his back was burning. He denied any radiating pain down his posterior thigh and said he could not walk on the treadmill and refused to pedal the bike a second time. He required increased rest breaks between exercises, secondary to a subjective claim of pain. The technicians noted that Mr. McGee was able to walk between the exercises with minimal antalgic gait, and was observed walking across to the parking garage after the therapy session “without any gait deviation.” The plan at that time was to continue to monitor Mr. McGee’s claims of pain with exercise and gauge his full effort. He was to be given a questionnaire and pain diagram on his next visit, and was given hamstring stretches to perform at home.

By letter of November 25, 2008, Mr. Shine reported to Dr. Bourgeois that he had evaluated Mr. McGee for his complaint of low back pain on November 13th and had seen him again on November 19th; however, Mr. McGee had missed four appointments as of the date of the letter. The letter concludes, “Based on the inconsistent signs during his initial evaluation, his inconsistent attendance in physical therapy and the lack of any significant medical findings, I would like to 112recommend doing an FCE with Mr. McGee to get a feel for his functional abilities on returning back to the work force in general.”

Mr. McGee testified that Dr. Bourgeois placed him on no work status and continues to treat him for the results of the fall. Dr. Bourgeois also recommended psychological counseling to deal with Mr. McGee’s accident-related depression, anxiety, and sad feelings. Mr. McGee testified that he had not experienced these symptoms prior to the accident and understands that Dr. Bourgeois continues to recommend psychological counseling.

The record contains a report from William Romani, M.C., of Diagnostic Imaging Services of an MRI of Mr. McGee’s right hip, provided at the request of Dr. Bourgeois. The doctor’s impression was of a small focus of hyperintense signal at the muscle tendon unit of the right gluteus medius that was felt to reflect a strain of the gluteus medius muscle tendon complex. There was no evidence of bone pathology or muscular abnormality. Dr. Ro-mani noted the presence of mild arthritic changes affecting the bilateral hips, being more pronounced toward the left.

Mr. McGee testified that Brand referred him to their physician, Dr. Steiner, of Drs. Nutik & Steiner, APMC, specialists in Orthopedic Surgery, whom he saw initially on December 2, 2008. He complained to Dr. Steiner of daily lower back and right hip pain that caused him to be unable to walk more than five or six blocks without pain and required him to sit down. Mr. McGee testified that Dr. Steiner did not tell him that he could go back to work, and did not recall Dr. Steiner’s recommendations.

Dr. Steiner’s report to Ms. Angela Klemenakis of Broadspire reflects the result of his independent medical examination of Mr. McGee in December, 2008. |1S The report notes Mr. McGee’s subjective complaints of daily, recurrent low back and right hip pain. The report indicates that Mr. McGee told him he had had only one physical therapy treatment and has been out of medication for about two weeks. The examination revealed no lower extremity weakness and no sensory deficit to light touch. Mr. McGee’s reflexes at his knees and ankles were symmetrical and straight leg raise on the right in sitting and supine positions caused him to complain of a tight sensation in the right hip, but no radiating pain. Left leg raises were negative. Dr. Steiner noted that Mr. McGee’s right leg appeared to be longer than his left leg. Dr. Steiner took X-rays that showed no abnormalities of the hips and sacroiliac joints and no degenerative changes or fractures or areas of bony destruction. The report also notes the generally insignificant results of the MRIs taken on April 22, 2008 and of October 24, 2008. Dr. Steiner concluded that his findings suggested right sacroiliac dysfunction consistent with the mechanism of Mr. McGee’s fall from the scaffold. Dr. Steiner recommended sacroiliac mobilization and stabilization specific physical therapy. In the meantime, he placed him at a sedentary physical demand level where “he may work as long as he does not have to do prolonged standing and walking. He should not do any bending, stooping, twisting or lifting activities at this point in time.” He believed treatment should last for about six weeks following mobilization of Mr. McGee’s sacroiliac joint to a normal position.

Mr. McGee testified that in January he was referred to physical therapy, but the weather had changed and he was in so much pain he could not complete the therapy. He did not discuss this therapy with Dr. Bourgeois. He admitted that he received a job offer from Brand in January for some sort of light duty as a Material Inspector; however, he claimed “My doctors, they had me on no work status.” | u This is consistent with Dr. Bourgeois’ reports to Broadspire dated October 8, 2008, October 31, 2008, December 2, 2008 in which he indicates that Mr. McGee is not able to return to work. However, there is no indication that this opinion referred to all types of work as contemplated in the LWCA provisions relating to TTD.

Following Dr. Steiner’s medical examination on December 2, 2008, Mary Anne Lansden, R.M., B.S.N, Mr. McGee’s medical case manager at Broadspire, wrote to Dr. Steiner on January 7, 2009, enclosing a copy of the modified job as Material Inspector developed by Brand in accordance with the restrictions outlined by Dr. Steiner in his initial report. Dr. Steiner signed off on the letter, indicating that he reviewed the requirements of the job of Material Inspector and approved it for Mr. McGee. The record contains a copy of a letter dated January 19, 2009 from Casey Dufour, employee health services manager for Brand’s New Orleans area, offering Mr. McGee a position as a material inspector on Airline Highway in St. Rose, Louisiana, beginning on January 26, 2009 with weekly hours Monday through Friday from 7 a.m. to 3:30 p.m., and wages of $17.63 per hour. The letter indicated that the physical requirements of the position had been approved by the doctor, and that Mr. McGee would be assigned only to tasks consistent with his physical abilities, skills, and knowledge. Mr. Dufour wrote that as Mr. McGee continued to progress toward complete recovery, Brand would work with the physician either to modify the position or create another light-duty position commensurate with the level of his recovery. The job offer was stated to be open for five work days from Mr. McGee’s receipt of the letter.

At the hearing, Mr. McGee denied having received the letter at his home or having been notified of the letter by his attorney, and denied having been aware of the letter. However, he testified earlier that he had discussed the job offer with Dr. | ^Bourgeois, who, he claims, suggested he remain on no work status. His mother, Lily McGee Hall, also contradicted his denial of having received the letter. She testified that she saw the letter, and questioned at the time what “light duty” consisted of, if her son’s doctor was saying he was unable to work. She testified that he opens his own mail.

Mr. McGee testified that at the time of the hearing, he was still having severe back pain, depression, anxiety, and trouble sleeping and walking six to seven or eight blocks. He denied any continuing problems with his nose, neck, right thigh, or bruised thigh. When asked if he could perform the duty of sorting one-pound scaffold clamps while seated, he answered, “Probably, probably not, I don’t know. I know my back would allow me to do very little.” He admitted having seen the January 19, 2009 letter outlining his modified duty job offer, and that he had never shown the material to Dr. Bourgeois.

Thé record contains a copy of Dr. Steiner’s letter of June 9, 2009 to Ms. Kleme-nakis, noting that Mr. McGee continues to report recurrent low back pain, tingling and burning sensation in his legs with prolonged walking. Dr. Steiner notes no antalgic component to Mr. McGee’s gait, and that he was able to stand without scoliosis or list. Pinching of the skin and pseudorotation tests were positive for lower back pain. Lower extremity motor, sensory and deep tendon reflex exams were normal, as were sitting and supine straight leg raise tests. Dr. Steiner found no evidence of nerve root impingement, nerve root irritation, or neurologic deficit in the lumbar region. He recommended continued conservative management with the use of anti-inflammatory medications and the discontinuation of narcotic analgesics. Dr. Steiner concluded, “I do not see a | ^medical contraindication for this patient working, but he should avoid heavy labor.”

According to Mr. McGee, Brand has not provided him with a weekly benefits check or any money in the form of an indemnity check, although Brand did reimburse him for his first two prescriptions. On cross-examination, he admitted that the workers’ compensation carrier reimbursed him for $312.01 for prescriptions on November 20, 2008, and that he had not submitted the remainder of his $469.47 Walgreen’s bill to Brand for payment. Although he had testified that Touro was billing him for $712.48 for emergency room services, he admitted he had not been advised that this bill was paid on November 10, 2008. He admitted on cross-examination that he did not have to pay out of pocket for any medical treatment other than these pharmacy charges, which either were paid or not submitted for payment.

In June of 2008, he sought approval from Brand to see neurologist Daniel Tra-hant, M.D., neurosurgeon Rand Voorhies, M.D., and a psychiatrist, but Brand has not authorized him to do so. Mr. McGee denied having any secretarial or computer skills, and his job history reflects that he has never held an office or other indoor job. He testified that he last saw Dr. Bourgeois within a month of the hearing, and that the doctor recommended a CT scan of the lumbar spine, which Brand did not approve, and continued his placement on a no work status. The record contains a report dated January 20, 2009 from radiologist Jash Patel, M.D., of Doctors Imaging Services, recommending a CT scan to better evaluate the diameters of Mr. McGee’s spinal canal in the lower lumbar region. The record also contains a copy of a letter dated March 25, 2009 from defense counsel to Mr. McGee’s attorney advising that Brand approved the CT scan recommended by Dr. 117Bourgeois, asking that the facility coordinate the procedure through Ms. Angela Klemenakis of Broad-spire. Dr. Patel’s recommendation contained in his January 20, 2009 report to Dr. Bourgeois, was faxed to Brand’s counsel by transmission dated February 12, 2009, 2:45 p.m. Brand approved the CT scan recommendation and communicated its approval to Mr. McGee’s attorney by the letter dated March 25, 2009. It appears that no further action was taken by Mr. McGee or his attorneys to arrange for the CT scan.

Mr. McGee admitted on cross-examination that despite the series of examinations and three MRIs, the cause of his pain remains of unknown origin. On re-direct examination, he denied any discussions with Dr. Bourgeois of possible herniations in his back. When questioned about Dr. Hawk’s recommendation that he see ISR Physical Therapy, he admitted that a Brand employee was willing to pick him up and take him to therapy the first time. He agreed to go on the eighteenth and twenty-second of April, 2008, but claimed that after that time, the Brand employees did not contact him. Mr. McGee denied that the employees were told he would not agree to further physical therapy, although his mother testified that she sent the employees away when they came to take her son to therapy.

Mr. McGee admitted that his physician, Dr. Bourgeois, had referred him to the LSU physical therapist, Mr. Shine, for physical therapy, and denied that he had ever walked normally after the accident. He denied any knowledge of the appointments scheduled with Mr. Shine for November 24, 26, and December 3, 2008. He admitted that Dr. Steiner recommended physical therapy at Baudry Physical Therapy, that he attended one therapy session and did not continue to |18pursue the recommended therapy. Mr. McGee denied that he was faking his symptoms. However, the Baudry report dated January 28, 2009, indicates:

“No obvious myotomal weakness noted, but effort was lacking with testing. Movement testing: pain reported with all trunk and left ROM (range of motion) tested. Movement appeared self-limited. Gait: exaggerated limp with decreased weight bearing. Waddell’s testing: pain reported with simulated trunk rotation and simulated compression.
The assessment of Mr. McGee was inconclusive secondary to high pain complaints with all movement testing, and self-limited behavior. Patient was resistant to passive ROM testing, SLR, SI testing, and any other manual testing. We would be willing to work with Mr. McGee if desired, to work on conditioning and strengthening, but an improved level of effort would be required to have any success.”

Kevin Hunter, the foreman on the job at the time of the accident, testified at the hearing. After the accident in which Mr. McGee fell on Mr. Hunter, breaking Mr. Hunter’s leg, he returned to light duty work at Brand’s main office, sitting separating clamps and ladder brackets, and using a cane to assist him in walking. The work involved separating the good and bad clamps into separate baskets while seated, bending and a little stooping. He walked about one hundred feet from his car to his job. He initially worked from two to four hour shifts, and believed he was still in a cast or boot when he returned to work. He worked in this light duty position for about a month and then returned to full duty.

Mr. Dufour, Brand’s safety manager, also testified at the hearing. He became involved in this case on April 22, 2008, when he took Mr. McGee to see Dr. Hawk at Pelican. No other Brand employee was with them at that time. The previous week, Craig Castillo and Jose Selvino, who work for Mr. Dufour, took Mr. McGee to Dr. Hawk and arranged for a follow-up visit on April 22. At that |19visit, Dr. Hawk sent him with Mr. McGee to have an MRI of Mr. McGee’s hip. He did so, and returned with Mr. McGee to Dr. Hawk’s office. She then explained that the MRI revealed nothing negative, and the hip injury was nothing more than a bruise on his leg. Dr. Hawk advised him that Mr. McGee could return to sedentary duty. After the accident, Mr. McGee was paid on the days he visited the doctor with the Brand employees.

Upon Dr. Hawk’s order of physical therapy for Mr. McGee, Mr. Dufour arranged for therapy with ISR. When he went to Mr. McGee’s home to pick him up for the therapy appointment, Mrs. Hall told him that Mr. McGee would no longer be going to Brand’s doctor. She provided no further explanation.

According to Mr. Dufour, the intention of Brand’s light duty program is to get an injured employee back to work. In his experience, returning to work usually aids in the healing process and gets them back to full duty more quickly, as was the case with Kevin Hunter.

Mr. Dufour identified his letter of May 2, 2008 offering Mr. McGee light duty work. He sent the letter by certified mail, but received the unopened envelope from the postal service with the indication that the postman had made a final attempt but the envelope was unclaimed. Mr. Dufour testified that he never received any contact from Mr. McGee or his attorneys since that time about a return to work.

Mr. Dufour identified his letter of January 19, 2009 offering Mr. McGee the light duty position of materials inspector. This offer was made based on Dr. Steiner’s report indicating that Mr. McGee was able to perform light duty, sedentary work. The letter also offered to make additional accommodations based upon restrictions provided by a doctor. Mr. Dufour testified that Mr. McGee didj^not reply to this letter, and that he has not received any communication from Mr. McGee or his representatives concerning his return to work.

BURDEN OF PROOF

In Buxton v. Iowa Police Department, 09-0520, p. 21 (La.10/20/09), 23 So.3d 275, 288-89, the Louisiana Supreme Court held:

A workers’ compensation claimant seeking temporary ... total disability benefits bears the burden of proving by clear and convincing evidence, his inability to engage in any type of employment. [Citation omitted] This burden of proof is statutorily mandated [citing La. R.S. 23:1221(l)(a) and (c) ].
Thus, to be entitled to TTD benefits a claimant must present clear and convincing evidence that he is unable to work at any type of employment whatsoever because of his physical condition; the fact that he would be working in pain is not proof that he is totally disabled.

Ultimately, the court found that the hearing officer’s decision to award TTD benefits was based on one statement by the examining physician that the claimant needed “time to recover”. As such, the court held, “Clearly, this was not clear and convincing evidence of total disability,” and found the award of TTD benefits to have been manifestly erroneous. Buxton at p. 23, 28 So.3d at 289-90.

This Court held in Jackson v. Sysco Food Services, 05-1304, p. 1-2 (La.App. 4 Cir. 6/7/06), 934 So.2d 191, 193 that, in determining whether a claimant has met his burden of proving by clear and convincing evidence his entitlement to TTD benefits, the hearing officer must weigh both medical and lay evidence. Furthermore, the claimant must introduce objective medical evidence to sustain his claim by clear and convincing evidence. Id.

Mr. McGee’s treating physician was not called, and his reports do not offer clear and convincing evidence that his patient is incapable of performing any work |g1at all or, specifically, the offered job of material inspector. The only evidence specifically addressing the issue of whether or not Mr. McGee is able to perform the work of a material inspector offered him by Brand is his testimony, “Probably, probably not. I don’t know.” Dr. Steiner initialed his approval of the material inspector job offer, indicating that Mr. McGee was capable of performing the duties associated with that position. The physical therapists chosen by both Dr. Bourgeois and by Dr. Steiner noted Mr. McGee’s lack of cooperation in his treatment, and noted inconsistencies in his presentation.

CONCLUSION

The legislature, in La. R.S. 23:1221(l)(c), set a very strict and high standard for the award of benefits for TTD, a standard that does not allow exceptions for odd-lot employment, sheltered employment, or employment while working in any degree of pain. When reviewed in its entirety, we are compelled to find that the evidence in this record falls far short of the “clear and convincing evidence” of Mr. McGee’s inability to perform any work at all, whether or not in odd-lot jobs, sheltered employment, or any degree of pain, as required by the statute. In light of our conclusion that entitlement to TTD benefits was not proven by clear and convincing evidence, we pretermit review of the hearing officer’s imposition of statutory penalties and attorney fees.

We therefore are mandated to vacate the judgment of the Office of Workers’ Compensation and to dismiss the claimant’s claim for temporary total disability, penalties, and attorney fees and remand for consideration of any other benefits to which Mr. McGee may be entitled under the LWCA.

VACATED, SET ASIDE AND REMANDED.

LOVE, J., dissents with reasons.

LOVE, J.,

dissents with reasons.

bl respectfully dissent. Unlike the majority, I do not find the that silence as to the burden of proof and the applicable temporary total disability (TTD) standard compels us to review the matter de novo.

The majority states that “the judgment does not specifically advert to the TTD standards of proof set forth in La. R.S. 23:1221(1).” However, I do not find that silence on burden of proof is tantamount to a conclusion that the hearing officer applied the incorrect burden of proof nor that plaintiff failed to carry that burden of proof. Implicit in the trial judge’s holding that Mr. McGee was temporarily totally disabled is a finding that Mr. McGee met his burden of proof in accordance with La. R.S. 23:1221(1). Consequently, I would apply the manifest error/clearly wrong standard of review.

“Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review.” Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556, (citing Smith v. La. Dept. of Corrections, 93-1305, p. 4, (La.2/28/94), 633 So.2d 129, 132; Freeman v. Poulan/Weed Eater, 93-1530, pp. 4-5, (La.1/14/94), 630 So.2d 733, 737-38.). The trial judge considered the totality of the evidence presented in rendering judgment and made a credibility determination, which afforded greater 12weight to the evidence presented in certified medical records offered by Dr. Bourgeois. The record demonstrates that the trial judge’s factual findings were supported by competent evidence, and as the reviewing court, I see no reason to second-guess the findings of the trial judge.

I do not find that the workers’ compensation judge committed legal error in the determination of plaintiffs entitlement to benefits. Therefore, I would affirm the workers’ compensation judge’s finding regarding entitlement to TTD benefits and the award of penalties and attorney fees.

      .La. R.S. 23:1221 provides in relevant part: "Compensation shall be paid under this Chapter in accordance with the following schedule of payments: (1) Temporary total, (a) For any injury producing temporary total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, or experience, sixty-six and two-thirds percent of wages during the period of such disability, (b) ... compensation for temporary disability shall not be awarded if the employee is engaged in any employment or self-employment regardless of the nature or character of the employment or self-employment including, but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, (c) ... compensation for [TTD] shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.”

      . Raul spoke no English, and Mr. McGee spoke no Spanish.

      . Pablo spoke very little English.

      . His mother admitted at the hearing that when the Brand employee came to her home to take Mr. McGee to his follow-up appointment, she told them he would no longer participate in the physical therapy.

      . Brand had offered Mr. McGee light duty work as a material inspector. Apparently, Dr. Steiner understood at the time of his report that Mr. McGee had accepted the offer, although that was not the case.


author: PETERS, J.

text:
    Angela ASHWORTH v. ADMINISTAFF, INC.
    No. 10-0318.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 6, 2010.

      George A. Flournoy, Flournoy & Dog-gett (APLC), Alexandria, LA, Counsel for Plaintiff/Appellant Angela Ashworth.
    John J. Rabalais, Janice B. Unland, Matthew D. Crumhorn, Rabalais, Unland & Lorio, Covington, LA, Counsel for Defendant/Appellee Administaff, Inc.
    Court composed of JIMMIE C. PETERS, BILLY H. EZELL, and SHANNON J. GREMILLION, Judges.
   PETERS, J.

Lin this workers’ compensation litigation, the workers’ compensation judge (WCJ) found that the plaintiff, Angela Ashworth, sustained a compensable injury while employed by Administaff, Inc. (Ad-ministaff), and awarded benefits and penalties. However, the WCJ concluded that certain physical complaints related to Mrs. Ashworth’s neck, lower back, and shoulder .were not work-related. In her appeal, Mrs. Ashworth seeks a reversal of the WCJ’s determination relative to her upper-body complaints and seeks an increase in the $6,000.00 award of penalties. For the following reasons, we affirm the WCJ’s factual findings with regard to Mrs. Ash-worth’s physical complaints but amend the WCJ judgment to increase the penalty award by $2,000.00.

DISCUSSION OF THE RECORD

At the time of her November 1, 2005 accident, Administaff employed Mrs. Ash-worth as a merchandiser. Her employment involved traveling to stores serviced by her employer to address merchandising issues. The accident giving rise to this litigation occurred at a Lowe’s store in Amarillo, Texas, when a display containing eight shower doors fell and pinned Mrs. Ashworth to the floor. It is undisputed that Mrs. Ashworth suffered three fractures to her right ankle and underwent surgery the next day for the placement of an internal fixation via a metal plate and screws. However, the first recorded complaint of neck, lower back, and shoulder pain is found in the records of Dr. Elemer Raffai, a Eunice, Louisiana orthopedic surgeon, three months after the accident. Administaff acknowledged its responsibility for the ankle injury, but denied responsibility for the other physical complaints.

[¡¡On June 26, 2006, Mrs. Ashworth filed a disputed claim for compensation against Administaff and its workers’ compensation insurer, Specialty Risk Services. Adminis-taff terminated Mrs. Ashworth’s temporary total disability (TTD) benefits as of July 12, 2006, but then reinstated them on April 15, 2007, after issuing her a check in the amount of $10,853.95. On February 11, 2009, Administaff terminated Mrs. Ash-worth’s TTD benefits and commenced paying supplemental earnings benefits (SEB) on February 16, 2009.

Following a trial on the merits, the WCJ rendered oral reasons for judgment finding that Mrs. Ashworth proved that her right ankle and knee problems, as well as her depression, were work-related, but that her other complaints were not. The WCJ awarded her reasonable and necessary medical treatment for her conditions, but found that surgery on her right knee was not warranted at the time. The WCJ further awarded Mrs. Ashworth $14,000.00 in penalties and $15,000.00 in attorney fees. After executing a formal judgment, the WCJ granted Mrs. Ashworth’s motion for new trial and amended the judgment ordering Administaff to pay any and all past due amounts owed.

Mrs. Ashworth appealed this judgment, raising two assignments of error:

I. Did plaintiff prove, by a reasonable preponderance, that the most likely cause of plaintiffs cervical, left shoulder and low back pain and discomfort was her work accident on November 1, 2005?
II. Did plaintiff prove, by a reasonable preponderance, multiple [La.R.S. 23]:1201(F) violations, entitling her to an additional $2,000.00 in penalties?

UOPINION

The standard of review applied in workers’ compensation matters is the “manifest error — clearly wrong” standard. Dean v. Southmark Constr., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117.

Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander [v. Pellerin Marble & Granite, 93-1698 (La.1/14/94)], 630 So.2d [706,] 710. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir.2003), 865 So.2d 98, 105. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Robinson, 865 So.2d at 105. The determination of whether injury occurred in the course and scope of employment is a mixed question of law and fact. Winkler v. Wadleigh Offshore, Inc., 01-1833 (La.App. 4 Cir. 4/24/02), 817 So.2d 313, 316 (citing Wright v. Skate Country, Inc., 98-0217 (La.App. 4 Cir. 5/12/99), 734 So.2d 874).

Id.

In order to receive workers’ compensation benefits, an injured employee must establish a causal connection between their work-related accident and the resulting complained of disability. Davis v. State ex rel. Dept. of Transp. and Dev., Office of Risk Management, 09-288 (La.App. 3 Cir. 11/10/09), 27 So.3d 969. The burden of proof is by a preponderance of the evidence. That being the case, if the probability of causation is equally balanced based on the evidence presented, then the employee has not carried her burden of proof. Guilbeaux v. Office of District Attorney, 07-89 (La.App. 3 Cir. 5/30/07), 957 So.2d 959, writ not considered, 07-1354 (La.9/28/07), 964 So.2d 366.

The accident involving Mrs. Ashworth occurred at approximately 3:00 p.m. on November 1, 2005, as the 700-pound-shower-door display she was checking came |4crashing down on her. Mrs. Ash-worth testified that as the display fell, she raised her left arm in a defensive action, but the display was too heavy. She fell underneath the display, twisting from her right to her left. According to Mrs. Ash-worth, it took eight workers to lift the display, and she crawled out on her knees and elbows. She testified that it was the twisting of the ankle, not the impact of the display that caused it to break. Although she was in shock, she knew immediately that she had broken her ankle.

Mrs. Ashworth acknowledged that she made no complaint of neck, back, or shoulder pain at the emergency room immediately after the accident. She underwent surgery on the ankle the next day, and was ordered to two weeks bed rest thereafter. During that two weeks, according to Mrs. Ashworth, her prescribed pain medication dulled all pain. She testified that she first started feeling pain in her neck, lower back, and shoulder a couple of weeks after the accident and first related that pain on November 10, 2005, to Dr. Thane Morgan, the Texas orthopedic surgeon who performed her surgery. According to Mrs. Ashworth, Dr. Morgan attributed her pain to her current use of crutches. She continued to use crutches for approximately three months following her accident.

According to Mrs. Ashworth, she also related her neck, lower back, and shoulder pain to a Hattiesburg, Mississippi physician at the Forrest General Hospital when she had her ankle cast checked on November 17, 2005. She testified that this physician gave her the name of a physician she should see for these complaints. She also sought treatment for problems with her cast at the Memorial Hospital in Gulfport, Mississippi, two days later, but could not recall whether she related her |Bupper body complaints to the treating physician at that time. She returned to Memorial Hospital two days later to have the staples removed from her ankle, and she does recall complaining of neck, back, or shoulder pain at that time. As was the case in Hattiesburg, the Gulfport physician suggested that she obtain an appointment with another physician to have these complaints evaluated. Within a few days after this doctor visit, Mrs. Ashworth found herself in Oakdale, Louisiana, where, on November 25, 2005, she presented herself to the Oakdale Community Hospital with ankle pain complaints.

In the meantime, Genex Services, Inc. (Genex) scheduled Mrs. Ashworth for a November 28, 2005 appointment with Dr. Keith Melancon, a Hattiesburg orthopedic surgeon. Mrs. Ashworth kept that appointment, and she asserted in her testimony that she attempted to relate her upper body complaints to Dr. Melancon, but was prohibited from doing so. According to Mrs. Ashworth, her nurse case manager told her not to list anything except her right ankle complaints when filling out the patient questionnaire, and she said that when she tried to talk to the doctor about her upper body complaints, he informed her that he was only allowed to treat her ankle and knee pain.

Dr. Melancon did prescribe physical therapy for the ankle and knee, and Mrs. Ashworth underwent physical therapy at Louisiana Physical Therapy Center in Oakdale, Louisiana in January of 2006. She testified that when she complained to the physical therapist of her neck, lower back, and shoulder pain, the physical therapist told her the same thing as did Dr. Melancon — he was only allowed to provide therapy | fifor her ankle and knee. Dr. Raffie first saw Mrs. Ashworth on January 26, 2006, and he was still treating her as of the time of trial.

Two months after starting treatment with Dr. Raffie, on March 30, 2006, Mrs. Ashworth was examined by Dr. Samir S. Ebead, an Orange, Texas IME. According to Mrs. Ashworth, as was the case with the other doctors, Dr. Ebead simply did not want to hear about her upper body complaints. She testified that each time she attempted to talk about her neck, back, and shoulder complaints, Dr. Ebead would turn off his recorder and would explain that the only complaints he was interested in were those associated with the ankle and knee.

According to Mrs. Ashworth, when Dr. James Perry, a Lake Charles, Louisiana orthopedic surgeon, examined her at the request of Administaff on July 9, 2007 and December 15, 2008, she related the particulars of the accident, including her upper body complaints. After his second examination, Dr. Perry told her that he would submit his report and get the matter moving forward. However, in her conversation with the doctor, he did not relate to her which complaints he considered to be work-related.

In her testimony, Mrs. Ashworth acknowledged that she was involved in a November 2001 automobile accident, as a guest passenger in a vehicle that was driven into a ditch and that she failed to relate this history to any of the physicians with whom she sought evaluation and treatment. After the accident, Mrs. Ashworth was examined at the Oakdale Community Hospital in Oakdale, Louisiana and denies relating any complaints of neck or back pain. According to Mrs. Ashworth, the only injury she sustained in the accident was a bump on the head from hitting the dashboard. However, the medical records of Community Hospital for November 25, |72001, reveal the emergency room physician’s clinical impression of low back pain, neck sprain, abdominal pain, as well as a contusion on Mrs. Ashworth’s forehead.

Dr. Raffai’s January 26, 2006 records do reflect that Mrs. Ashworth complained of neck and lower back pain and headaches, in addition to pain in the right ankle and knee, when he first examined her. As a result of the history provided, Dr. Raffai’s initial diagnosis was that of a whiplash injury, sprain of the neck and lower back, healed fracture of the right ankle, and a right knee sprain. The doctor recorded Mrs. Ashworth’s first complaint of shoulder pain on February 8, 2007, and recommended that an MRI of her shoulder and cervical spine be performed. Thereafter, on May 15, 2007, Dr. Raffai also recommended an MRI of her lower back. These MRIs were performed on November 12, 2007, revealing a disc bulge at L5-S1 and a broad-based osteophyte disc complex at C5-6 with mass effect on the thecal sac but no mass effect on the spinal cord.

Dr. Raffai testified that without the benefit of the further diagnostic studies which he had requested, his diagnosis was that of chronic neck and lower back pain, a left shoulder impingement, possible torn right knee cartilage, and right ankle post-traumatic arthritis. He had asserted in a February 4, 2009 letter to a medical nurse manager, that it was his opinion that Mrs. Ashworth’s neck, lower back, and shoulder complaints were work-related. However, he did acknowledge that the bone spur at C5-6 could be either trauma-related or degenerative in nature and that a pre-accident MRI would be necessary to definitively resolve the cause.

In his deposition, Dr. Raffai continued to assert his opinion that Mrs. Ashworth’s complaints were work-related even though she made no complaints of |sneck, lower back, and shoulder pain prior to January 26, 2005. He based this opinion on his conclusion that he had no reason to doubt Mrs. Ashworth because she seemed straightforward to him in the presentation of her complaints and because he found nothing to cause him to believe she was malingering. Dr. Raffai explained that patients suffering multiple injuries arising from trauma complain of the most acute problem first, and they may not necessarily feel pain elsewhere as inflammation in the soft tissues, neck, and even the knees takes a few days to set in. In reviewing Dr. Melancon’s records, Dr. Raffai stated that Dr. Melancon was probably focused on the most significant problems at the time, the ankle fracture and right knee, and may not have discussed Mrs. Ash-worth’s chronic neck and back pain.

The record is clear that the primary focus after the accident was the injuries to Mrs. Ashworth’s ankle and knee. Neither the Employers First Report of Injury or Illness, dated November 2, 2005; the emergency room records of the Northwest Texas Healthcare System in Amarillo; nor the initial hospital records lists anything other than the ankle and knee injuries. Additionally, subsequent medical records do not support Mrs. Ashworth’s testimony that she did relate her upper body complaints to other medical care givers before seeing Dr. Raffie in January of 2006. These include Dr. Morgan’s records eight days after surgery; the records of both Forrest General Hospital in Hattiesburg and Memorial Hospital in Gulfport; and Dr. Melancon’s November 28, 2005 records. In fact, Dr. Melancon’s records of that date contain the notation that when questioned during the doctor’s musculo-skeletal system examination, Mrs. Ash-worth “denie[d] any pains, aches, strains, or any musculoskeletal problems.”

|flDr. Perry opined that the bulging disc at C5-6, was not work-related as the mechanism of the injury did not fit this result. Additionally, according to Dr. Perry, the disc bulge at L5-S1 was more chronic in nature and probably would have existed even absent her accident. He described the bulge as an age-related change, explaining that an age-related bulge is more diffuse and circumferential, as opposed to a herniation, such as that caused by trauma, which is more focal in nature. With regard to her lumbar spine, Dr. Perry stated that the November 7, 2007 MRI was normal. Based on his findings, he concluded that none of Mrs. Ash-worth’s neck, lower back, or left shoulder complaints were work-related. He testified that she may have had a “minor little upset for a very short period of time, maybe, but at best, that’s it. I can’t say that she had neck and back pain of a chronic nature from that ... it doesn’t add up.”

Dr. Lynn E. Foret, a Lake Charles, Louisiana orthopedic surgeon, examined Mrs. Ashworth on March 20, 2009, pursuant to an order issued by the WCJ. After examining Mrs. Ashworth and reviewing her medical records, Dr. Foret reached the conclusion that her shoulder complaints were more related to nerve root irritation in her neck. He based this on a normal shoulder MRI and objective findings of cervical radiculitis in her right shoulder and arm and pain in her interscaspular and trapezius regions. With regard to the cervical complaints, Dr. Foret testified that it would be difficult to express an opinion three-and-a-half years after the accident concerning whether Mrs. Ash-worth’s cervical complaints were work-related. He testified that osteophytes are mostly old, but, if a disc is blown out in the area of the bone spur, the disc will show significant changes. Thus, he would expect that a second cervical MRI would reveal whether the disc complaint at C5-6 is work-related. If an MRI |inreveals significant changes after the November 11, 2007 MRI, then the disc complaint would be work-related. A June 11, 2009 MRI of the cervical spine revealed that the appearance of the osteophyte disc complex at C5-6 was similar to that of the November 11, 2007 MRI. According to Dr. Foret, this would indicate that the C5-6 complaints were not related to the accident of November 1, 2005.

Dr. Foret also concluded that Mrs. Ash-worth’s lower back complaints are not work-related, basing this opinion on the fact that the November 11, 2007 MRI revealed a small hemangioma at Til, which he explained has “been there forever,” and a slight disc bulge at L5-S1, which he felt was compatible with her age. Dr. Foret explained that bulges at that location start developing at approximately thirty years of age. He testified that based on Mrs. Ashworth’s accident, he would expect her to suffer a myofascial strain in her lower back, which he said usually clears up within three to six months.

Mrs. Ashworth’s medical records were also reviewed by Dr. David H. Trotter, a Texas and Illinois orthopedic surgeon, and Dr. Bruce Beavers, a Dallas, Texas orthopedic surgeon. Based on their evaluation of the medical records, both doctors concluded that Mrs. Ashworth’s upper body complaints were not related to the accident of November 1, 2005. Dr. Trotter concluded that “[t]he claimant’s ongoing conditions would appear at other sites to be related to pre-existing degeneration to plausible unreported intervening injuries or conditions and/or to a combination of the preceding along with unsupported condition attribution on the part of the claimant with regards to the DOI.”

In the oral reasons for judgment, the WCJ found that Mrs. Ashworth failed to prove that her neck, shoulder, and lower back complaints were causally related to her lnwork accident. The WCJ stated: “While Mrs. Ashworth’s testimony is that she reported these ailments, the medical records do not support her contention. The Court notes that she did complain to Dr. Raffia less than three months after the accident; however, the medical evidence does not causally relate these problems to the work accident.”

After reviewing the record, we cannot say that the WCJ was manifestly erroneous in its factual conclusions. Despite her claims that she complained to various doctors prior to Dr. Raffai, the diagnostic studies point to no evidence of a work-related complaint in those areas. Mrs. Ashworth’s MRIs were unremarkable except for an age-related disc bulge at L5-S1 and an osteophyte disc complex at C5-6. Dr. Foret stated that a lack of significant changes in a more recent cervical MRI will indicate that the bone spur and disc predate the work accident. The June 11, 2009 MRI bears this out, as the reviewer found no change in the appearance of the osteo-phyte disc complex compared to November 11, 2007. Accordingly, the judgment of the WCJ denying Mrs. Ashworth’s claim for workers’ compensation benefits as regards her neck, shoulder, and lower back is affirmed.

In her next assignment of error, Mrs. Ashworth argues that the WCJ erred by failing to award her the maximum amount of penalties available pursuant to La.R.S. 2S:1201(F), or $8,000.00. In the original and amended judgment, the WCJ awarded Mrs. Ashworth $2,000.00 in penalties based on Administaffs improper conversion of her TTD benefits to SEB; $2,000.00 for its failure to pay the correct rate of indemnity benefits; $2,000.00 for its failure to authorize medication for psy-' chologieal problems and timely reimburse for prescription medication and/or medical visits; and $8,000.00 for discontinuance of benefits pursuant to La.R.S. 23:1201(F).

|12The determination of whether an employer should be cast with penalties is a question of fact which will not be reversed on appeal absent manifest error. Romero v. Northrop-Grumman, 01-24 (La.App. 3 Cir. 5/30/01), 787 So.2d 1149, writ denied, 01-1937 (La.10/26/01), 799 So.2d 1144. The failure to provide payment of workers’ compensation indemnity benefits will result in an assessment of penalties and attorney fees pursuant to La.R.S. 23:1201(F).

Mrs. Ashworth presents three reasons why the WCJ could have awarded an additional $2,000.00 in the instant matter. After reviewing the record, we find merit in this argument and award her an additional $2,000.00 in penalties based on Adminis-taffs failure to pay her indemnity benefits between February 12 and February 15, 2009. Specialty Risk’s payment records reflect that Mrs. Ashworth received a payment for TTD benefits for the period between February 5 and 11. She next received a payment for SEB for the period between February 16 through March 17. The WCJ did not address this failure in the judgment. As the WCJ held that Ad-ministaff improperly converted Mrs. Ash-worth’s TTD benefits to SEB, she was entitled to TTD benefits for the period between February 12 and 15. Accordingly, we find that it was error for the WCJ not to award Mrs. Ashworth $2,000.00 in penalties based on Administaffs failure to pay these benefits. La.R.S. 23:1201(F). We amend the judgment of. the WCJ to provide for this award.

CONCLUSION

For the foregoing reasons, we amend the judgment of the workers’ compensation judge to award an additional $2,000.00 in penalties to Angela Ashworth. We affirm the judgment as amended, and assess all costs of these proceedings to Adminis-taff, Inc.

AFFIRMED A& AMENDED.

      . Administaff entered into a Client Service Agreement with Brian Mallard Group of Texas, LP (Brian Mallard) to provide personnel management services to Brian Mallard on site at job locations. The agreement between the two provides that Administaff and Brian Mallard are considered co-employers of the work-site employees assigned to Brian Mallard’s worksite.

      . Mrs. Ashworth was in Hattiesburg with her husband, who also worked for Administaff, and who had been transferred to a job in Mississippi.

      . Mrs. Ashworth does not remember this visit to the emergency room.

      . Genex was retained by Specialty Risk Services to manage Mrs. Ashworth’s care, and it provided her with a nurse case manager who scheduled and attended her appointments.

      . Bone spur.


author: THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. Roch Michael BORDELON.
    No. 10-252.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 6, 2010.

      David Edwin Lafargue, Assistant District Attorney, Twelfth Judicial District Court, Charles A. Riddle, III, District Attorney, Twelfth Judicial District Court, Marksville, LA, for Plaintiff/Appellee, State of Louisiana.
    William Gold Whatley, Marksville, LA, for Defendant/Appellant, Roch Michael Bordelon.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and JAMES T. GENOVESE, Judges.
   THIBODEAUX, Chief Judge.

| defendant, Roch Michael Bordelon, was convicted by a jury of the responsive verdict of simple battery after being charged initially with second degree battery. He was a first offender and was sentenced to the maximum time of six months in jail, with credit for eighty-two (82) days spent in jail or inpatient treatment.

He appeals his conviction and sentence. He argues his conviction should be reversed because he was not given a list of the State’s witnesses prior to trial. He asserts his sentence is excessive. For the following reasons, we affirm Defendant’s conviction but vacate his sentence as excessive and remand to the trial court for resentencing.

I.

ISSUES

We shall consider whether:

(1) the trial court committed legal error when it imposed a maximum sentence for the simple battery conviction — six months imprisonment.
(2) the trial court committed legal error by refusing to order the state to provide the defense with formal discovery responses.

II.

FACTS

Defendant was the girls’ basketball coach at Marksville High School (“Marks-ville”) at the time of this incident. On Sunday, January 25, 2009, Marksville’s principal, Stephen Allgood, was notified that Defendant was upset at the girls’ basketball practice. Allgood then contacted the Avoyelles Parish school superintendent about Defendant. The superintendent told Allgood not to allow |2Pefendant to return to class until Allgood had interviewed him. Once that interview was complete, Allgood was to send Defendant to the superintendent.

When Allgood arrived at school on Monday, January 26, four parents were waiting to speak to him about Defendant’s behavior at the practice. Defendant was not at school at the time, and he had not called in to say he would be absent or late. Allgood and another teacher, Chris Dupuy, went to Defendant’s home around 10:00 a.m. and found the door of Defendant’s home open. Defendant appeared very agitated but allowed them to enter the home.

Defendant told Dupuy and Allgood he wanted to pick up medication at a pharmacy and to go to church and light a candle. The three left Defendant’s home and went to the church, where Defendant became more calm. Dupuy contacted Defendant’s father and asked him to meet them at the church. When Defendant saw his father, he again became quite agitated and screamed at his father.

After Defendant calmed down, he told Dupuy and Allgood he had to be at basketball practice that afternoon. When All-good suggested Defendant should not go to the school that day, Defendant again became very agitated, saying “don’t take my girls from me.” Defendant cursed at Allgood and then left.

Allgood and Dupuy returned to the school, where Allgood again called the superintendent. Shortly thereafter, Defendant burst into Allgood’s office, claiming his girls were in the hallway crying. Defendant then left, slamming the door. All-good followed him, calling him to stop and talk. Allgood believed Defendant intended to go to practice, although Defendant never walked directly toward a door leading to the gymnasium. He told Defendant he felt he should not be at the school. He wanted to talk with Defendant so that he “could fulfill the directive that [he] had received from [his] superior” and talk about the incident of the prior evening. IsAllgood had already told the superintendent that he intended to recommend Defendant’s termination.

Allgood and Defendant exchanged words, and Allgood eventually told Defendant he was fired. A fight ensued between the two. It is questionable as to who instigated the fight, but Allgood experienced the majority of the injuries. Eventually, the fight concluded. One witness testified that Allgood told Defendant, “you’re done” and “you’re over.” Defendant went to his car following the fight.

Allgood testified he was in “very severe pain” upon his arrival at the hospital, although hospital records showed his pain level as “mild.” Since this incident, All-good testified that he has had back pain and “a real loud ringing in [his] left ear.” Moreover, Allgood now wears a mouth splint.

Medical records from the Avoyelles Hospital on the date of the incident indicate that the doctors found no evidence of fracture or alignment abnormalities in All-good’s ribs or spine.

III.

ERRORS PATENT

We find one error patent. The record does not indicate that the trial court advised Defendant of the prescriptive period for filing post-conviction relief as required by La.Code Crim.P. art. 930.8. Thus, the trial court is directed to inform Defendant of the provisions of Article 930.8 by sending appropriate written notice to Defendant within thirty days of the rendition of this opinion, and to file written proof that Defendant received the notice in the record of the proceedings. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163.

JiJV.

LAW AND DISCUSSION

(A) EXCESSIVENESS OF SENTENCE

Defendant alleges he received an excessive sentence. This court has set out a standard to be used in reviewing excessive sentence claims:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.

To decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has held:

[An] appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to | .¡assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061. Further, “[a]s a general rule, maximum sentences are appropriate in cases involving the most serious violation of the offense and the worst type of offender.” State v. Hall, 35,151, p. 4 (La.App. 2 Cir. 9/26/01), 796 So.2d 164,169.

To determine whether the trial court erred in imposing a sentence of six months imprisonment for simple battery, we now examine: (a) the three Smith factors; (b) the issues of provocation under La.Code Crim.P. art. 894.1(B)(24); and, (c) the status of the individuals.

The Smith Factors

(1) Nature of the Offense

The nature of the offense is simple battery. Though the State charged the defendant with second degree battery which requires “serious bodily injury” under La. R.S. 14:34.1, the jury obviously believed that the victim did not suffer “serious bodily injury” because it returned a responsive verdict of simple battery. We are cognizant of the victim’s testimony concerning the extent of his injuries. The Avoyelles Hospital record of the victim’s injuries on the date of the incident, however, indicates injuries that are not as severe as portrayed by the victim. Specifically, the hospital’s report shows that the victim suffered no bone fractures and had only mild to moderate degenerative disc disease preexisting the incident. Moreover, though the victim testified that he suffered “very severe pain” upon his arrival at the hospital, the hospital’s records rate his pain level as “mild.” Thus, we must consider the offense as what the jury found it to be — simple battery.

In(2) Circumstances of the Offender

Defendant was a first-time offender. He had never been arrested for a felony, and he had never been convicted of a crime. At the time of the incident, Defendant clearly suffered mental health issues, and his behavior immediately preceding the incident indicates that he was under a tremendous amount of stress and anxiety. Indeed, Defendant later received treatment in a psychiatric facility for which he received credit toward his jail sentence.

Moreover, Defendant received news of his termination shortly before the altercation from the victim who did not have the authority to terminate him. This news undoubtedly added to his stress and altered his demeanor.

(3) Legislative Purpose and Comparison of Sentences with Similar Crimes

The obvious legislative purpose of the punishment is to deter future conduct. Here, however, nothing in the record indicates that Defendant will commit such crimes in the future. Thus, imposition of the maximum punishment, “makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering.” State v. Campbell, 404 So.2d 1205 (La.1981); State v. Barling, 779 So.2d at 1042-43.

An examination of sentences for other offenders of simple battery reveals that defendants usually only receive the maximum sentence for simple battery when the offense is combined with other, more serious, crimes.

Provocation

The trial court should have also considered the issue of provocation under La.Code Crim.P. art. 894.1(B)(24). The record indicates that Allgood was engaged in a heated argument with Defendant immediately before the altercation |7began. Specifically, as Defendant attempted to leave the school grounds, the principal pursued Defendant and verbally assaulted him, yelling “you’re fired!” Indeed, two students testified that Allgood appeared to be the aggressor and initiated the confrontation. Allgood testified that he reacted only after Defendant spat in his face, but no other witnesses corroborated the principal’s testimony. Thus, we find that the trial court should have considered the victim’s provocation of Defendant during sentencing.

Status of the Individuals

The trial court’s judgment indicates that it may have impermissibly considered the status of the individuals— teacher and principal—when sentencing Defendant. Here, we must only consider the crime, simple battery, and not the status of the individuals. The fact that the victim and Defendant are educators should not have impacted the harshness of Defendant’s sentence. We note specifically that the State failed to charge Defendant with battery of a schoolteacher under La.R.S. 14:34.3, which carries a harsher sentence upon conviction. Thus, the trial court im-permissibly considered the individuals’ status at sentencing.

An analysis of the Smith factors, the victim’s provocation, and the status of the individuals leads us to conclude that Defendant’s sentence was excessive.

(B) PRE-TRIAL DISCOVERY

Defendant also contends the trial court erred when it refused to order the State to provide Defendant with requested pre-trial discovery and a list of the State’s witnesses with names, addresses, and their last known phone numbers. The record shows the State provided Defendant with its file in discovery. Defendant relies on State v. Walters, 408 So.2d 1337 (La.1982), in support of his position. That case, however, specifically recognizes that Defendant has no right to the names and |8addresses of the State’s witnesses, even though Louisiana law does not prohibit him from being given that information. More recently, the Louisiana Supreme Court has confirmed that a defendant is not entitled to the State’s witness list, absent extraordinary circumstances. State v. Weathersby, 09-2407 (La.3/12/10), 29 So.3d 499.

Defendant’s counsel interviewed a few students at the school, received “statements of quite a few witnesses,” and was given the State’s file. The State claimed that the names of all of its witnesses could be found in its file, and Defendant failed to show anything different. At the hearing of Defendant’s motion for a continuance of the trial on October 14, 2009, the trial judge instructed Defendant’s counsel to make a motion during the trial if the State called a witness whose name was not in its file, or of whom Defendant had no knowledge. Defendant made no such motion. Defendant presented no evidence to suggest that anything was withheld from him, that he was in any way prejudiced by not receiving the information he requested, or that the trial court abused its discretion in denying his request for the information. Thus, we find no merit in Defendant’s contention that the trial court erred in refusing to order the State to provide Defendant with its witness list.

V.

CONCLUSION

We affirm Defendant’s conviction, but we vacate his sentence. We remand this case to the trial court for resentencing. Moreover, the trial court is directed to inform Defendant of the provisions of La. Code Crim.P. art. 930.8 by sending appropriate written notice to Defendant within thirty days of the rendition of this opinion and to file written proof that Defendant received the notice in the record of the proceedings.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.


author: GENOVESE, Judge.

text:
    Derrick GABRIEL And Patrick Gabriel, Individually and on Behalf of their Mother, Mable Gabriel, Decedent v. LOUISIANA ORGAN PROCUREMENT AGENCY and Dr. Thiagarajan Ramcharan.
    No. 10-251.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 6, 2010.
    R. Scott lies, Lafayette, Louisiana, Counsel for Plaintiffs/Appellants: Derrick Gabriel and Patrick Gabriel, individually and on behalf of their mother, Mable Gabriel, decedent.
    Sidney W. Degan, Richard C. Badeaux, Maryann G. Hoskins, Travis L. Bourgeois, Degan, Blanchard & Nash, New Orleans, Louisiana, Counsel for Defendant/Appellee Louisiana Organ Procurement Agency.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| plaintiffs, Derrick Gabriel and Patrick Gabriel, appeal the trial court’s grant of summary judgment in favor of Defendant, Louisiana Organ Procurement Agency (LOPA). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On January 5, 2006, Mabel Gabriel (Ms. Gabriel) was admitted to Lafayette General Medical Center (LGMC) in Lafayette, Louisiana, where it was determined that she was suffering from a massive cerebral hemorrhage. Ms. Gabriel became comatose, was placed on a respirator, and was declared brain-dead. Ms. Gabriel’s family then made the decision to donate her organs. Said donations were effectuated through LOPA.

According to Plaintiffs’ Petition for Damages filed on March 20, 2007, against LOPA and Dr. Thiagarajan Ramcharan, “[i]n the process of organ harvest, the employees, agents[,] and actors on behalf of LOPA[,] spilled caustic substances onto Ms. Gabriel’s body causing disfiguring injuries to her body.” Pursuant to La.Civ. Code art. 2315.6, Plaintiffs’ suit alleged that the “[djamages sustained ... |2include mental anguish associated with seeing their [mjother in a disfigured fashion, as well as having to conduct a funeral with a closed casket thereby not being able to properly experience the grieving process with the loss of their [mjother.”

Plaintiffs filed a First Supplemental and Amending Petition for Damages on June 30, 2008, wherein they alleged that “Dr. Ramcharan either enjoyed an employment relationship or an agency relationship with [LOPA].” Plaintiffs further asserted that “[i]n accordance with the provisions of [La. Civ.Code art.] 2320, [LOPA] is answerable in solido with Dr. Ramcharan for his acts of negligence causing the injuries and disfigurement to [Ms.] Gabriel and the damages claimed by the [Plaintiffs herein.” Alternatively, Plaintiffs alleged that LOPA “provided professional liability insurance in force, effect, and in favor of the [Defendant, Dr. Thiagarajan Ramcharan. Accordingly, [LOPA] is duty[-]bound to indemnify and defend the physician for the injuries complained of herein.”

On August 22, 2008, LOPA filed an Answer to Petition for Damages and First Supplemental and Amending Petition for Damages denying Plaintiffs’ claims. On June 18, 2009, LOPA filed a Motion for Summary Judgment asserting that Dr. Ramcharan was not its employee; therefore, LOPA cannot be held liable for |sDr. Ramcharan’s actions. In support of its Motion for Summary Judgment, LOPA attached as exhibits: Exhibit A — Agreement for the Procurement of Organs and Tissue for Transplantation by and between LGMC and LOPA; Exhibit B — Plaintiffs’ Initial Complaint to the Commissioner of Administration, State of Louisiana Medical Review Panel (MRP); Exhibit C — Plaintiffs’ Amended Complaint to the Commissioner of Administration, State of Louisiana MRP; Exhibit D — the Opinion and Reasons for Opinion of the MRP dated March 18, 2008; Exhibit E — Plaintiffs’ Petition for Damages; Exhibit F — Plaintiffs’ First Supplemental and Amending Petition for Damages; and Exhibit G — Affidavit of Kelly Ranum, Executive Director of LOPA. The affidavit of Ms. Ranum attests, in pertinent part:

6. Dr. Thiagarajan Ramcharan is not an employee of LOPA.
7. There has never been a contract of employment between [LOPA] and Dr. Thiagarajan Ramcharan; and, more specifically, there was not a contract of employment or service contract in effect on or about January 5, 2006.
8. There has never been a service contract between [LOPA] and Dr. Thia-garajan Ramcharan; and, more specifically, there was not a contract of employment or service contract in effect on or about January 5, 2006.
9. There is no contractual relationship between LOPA and Dr. Ramcharan.
10. LOPA does not have any personnel records of Dr. Thiagarajan Ram-charan.
11. LOPA does not have any pay stubs, payment records[,] or wage records regarding Dr. Thiagarajan Ram-charan, including services performed in the organ recovery of Mabel Gabriel.
12. Dr. Ramcharan did not receive any compensation from LOPA for recovering Mabel Gabriel’s organs.
13. Dr. Ramcharan has never submitted a bill for services rendered for LOPA in the organ recovery of Mabel Gabriel.
|414. LOPA has never provided Dr. Ramcharan with staff support during the recovery of tissue or organs from organ donors in the form of surgical assistance, nursesf,] or couriers, etc.[,] and specifically did not provide such support during the recovery of Mable Gabriel’s organs.

In their opposition to LOPA’s motion, Plaintiffs relied upon LOPA’s offering of the Agreement for the Procurement of Organs and Tissue for Transplantation by and between LGMC and LOPA. Specifically, Plaintiffs relied heavily upon paragraph four therein, which states:

LOPA assures [LGMC] that it assumes total responsibility for the actions of LOPA personnel, and that said personnel are covered by organ and tissue professional liability insurance. LOPA will ensure only appropriately credentialed and qualified individuals will be used to perform organ and tissue retrievals. Physicians affiliated with LOPA will be licensed to practice medicine and qualified and trained to perform organ procurement services. These physicians must meet the qualifications established by LOPA, its Board of Directors and the United Network of Organ Sharing (UNOS). LOPA personnel will present [LGMC] with appropriate LOPA identification.

Plaintiffs argued that as a consequence of the agreement between LOPA and LGMC, “LOPA has agreed to provide liability insurance to indemnify the physician who made the error in this case. Therefore, irrespective of direct negligence on the part of any LOPA employee, LOPA is duty[-]bound pursuant to its indemnity agreement to provide indemnity, insurance, and defense for this matter.”

The matter was heard on August 24, 2009, at which time LOPA’s motion for summary judgment was granted. A judgment was signed by the trial court on September 8, 2009, and Plaintiffs have appealed therefrom.

ASSIGNMENT OF ERROR

In their sole assignment of error, Plaintiffs assert that “[t]he trial court erred in failing to find that an organ harvest surgeon dispatched by the Louisiana Organ Procurement Agency was not a physician ‘affiliated with LOPA ... ’ so as to activate |Rthe indemnification agreement that enured to the benefit of the patient and Plaintiffs.”

LAW AND DISCUSSION

Our Louisiana Supreme Court has instructed us on the standard of review relative to a motion for summary judgment as follows:

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Duncan v. U.S.A.A. Ins. Co., [06-363 (La.11/29/06)], 950 So.2d 544, [see La.Code Civ.P.] art. 966. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Wright v. Louisiana Power & Light, [06-1181 (La.3/9/07)], 951 So.2d 1058[ ]; King v. Parish National Bank, [04-337 (La.10/19/04)], 885 So.2d 540, 545; Jones v. Estate of Santiago, [03-1424 (La.4/14/04)], 870 So.2d 1002[.]

Samaha v. Rau, 07-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882-83 (footnote omitted). Louisiana Code of Civil Procedure Article 966(C)(2) provides:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

On appeal, Plaintiffs argue that “[t]he question of fact for the [cjourt is whether this surgeon dispatched to perform the organ harvest procedure is a physician ‘. affiliated with LOPA ... ’ so as to activate the provisions of Paragraph 4 of the indemnification agreement.” Plaintiffs assert “[cjlearly, the trial court was incorrect in finding that Dr. Ramcharan was not an affiliated physician with LOPA since his only purpose for being present at [LGMC] was for [the] organ harvest of |w[Mb.] Gabriel.”

LOPA counters by arguing that Plaintiffs’ reliance upon the contract between LGMC and LOPA is a misguided effort to establish a vicarious relationship between LOPA and Dr. Ramcharan. We agree.

The contract between LOPA and LGMC, and specifically paragraph four thereof, provides that LOPA will “assume[ ] total responsibility for the actions of LOPA personnel[.]” In this case, no evidence was introduced proving that Dr. Ramcharan was, in fact, “LOPA personnel.” To the contrary, the affidavit of Ms. Ranum proves that Dr. Ramcharan was not “LOPA personnel.” Plaintiffs wrongly rely upon an indemnity agreement between LOPA and LGMC in their effort to prove a vicarious relationship between LOPA and Dr. Ramcharan.

Pursuant to our de novo review of the record, we conclude that the trial court was correct in holding that Plaintiffs failed to produce sufficient evidence to establish that they will be able to prove their claim at trial; thus, no genuine issue of material fact exists, and LOPA’s Motion for Summary Judgment was properly granted.

DECREE

For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed against Plaintiffs/Appellants, Derrick Gabriel and Patrick Gabriel.

AFFIRMED.

THIBODEAUX, Chief Judge, concurs.

      . Dr. Ramcharan performed the organ procurement surgery on Ms. Gabriel.

      . Louisiana Civil Code Article 2315.6 provides, in pertinent part:
      A. The following persons who view an event causing injury to another person, or who come upon the scene of the event soon thereafter, may recover damages for mental anguish or emotional distress that they suffer as a result of the other person’s injury:
      (1) The spouse, child or children, and grandchild or grandchildren of the injured person, or either the spouse, the child or children, or the grandchild or grandchildren of the injured person.

      B. To recover for mental anguish or emotional distress under this Article, the injured person must suffer such harm that one can reasonably expect a person in the claimant’s position to suffer serious mental anguish or emotional distress from the experience, and the claimant’s mental anguish or emotional distress must be severe, debilitating, and foreseeable. Damages suffered as a result of mental anguish or emotional distress for injury to another shall be recovered only in accordance with this Article.

      .Louisiana Civil Code Article 2320 provides:
      Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.
      Teachers and artisans are answerable for the damage caused by their scholars or apprentices, while under their superintendence.
      In the above cases,' responsibility only attaches, when the masters or employers, teachers and artisans, might have prevented the act which caused the damage, and have not done it.
      The master is answerable for the offenses and quasi-offenses committed by his servants, according to the rules which are explained under the title: Of quasi-contracts, and of offenses and quasi-offenses.