author:
VICTORY, J.
     KNOLL, J.,

text:
    Emile POISSENOT v. ST. BERNARD PARISH SHERIFF’S OFFICE.
    No. 2009-C-2793.
    Supreme Court of Louisiana.
    Jan. 9, 2011.
    Rehearing Denied March 4, 2011.

      Gutierrez & Hand, Salvador E. Gutierrez, Jr., Mary Ann Hand, Chalmette, LA, for Applicant.
    Robert Angelle, Metairie, LA, for Respondent.
   VICTORY, J.

hln this workers’ compensation case, the workers’ compensation judge (“WCJ”) awarded claimant supplemental earnings benefits (“SEBs”), penalties, and attorney fees, finding the employer’s failure to pay benefits arbitrary and capricious. The court of appeal affirmed. We granted cer-tiorari to determine whether the lower courts used the correct standard in determining the claimant was entitled to SEBs. For the reasons that follow, we reverse the judgment awarding claimant SEBs, penalties, and attorney fees, and render judgment in favor of the employer.

FACTS AND PROCEDURAL HISTORY

Emile Poissenot (“Poissenot”) was an employee of the St. Bernard Parish Sheriffs Office (“SBPSO”) working in a juvenile detention center as a deputy sheriff. On September 18, 2004, Poissenot fractured the small finger on his right hand while attempting to subdue a prisoner. That same day, he was treated at Tulane University Hospital, where he underwent a closed reduction and pinning of the fracture. He was released from the hospital on September 20, 2010 with pain medication.

12After his initial treatment, Poissenot continued treatment with Dr. Eric George, an orthopaedic surgeon specializing in surgery of the hand and upper extremities. Under Dr. George’s care, he underwent two additional outpatient surgical procedures on the same finger. The first surgery, on October 8, 2004, was to remove the retained hardware from the initial surgery, and to insert a buttress plate on the bone of the little finger to properly realign it. On October 18, 2004, Dr. George removed the stitches, placed him in a cast for two weeks, and released him to light duty work. On December 1, 2004, Dr. George released Poissenot to return to full work. On December 31, 2004, Dr. George performed another surgery to remove the hardware to free the tendons for better movement. He was released from formal therapy on February 17, 2005. Poissenot was ultimately diagnosed as having a permanent partial disability of 19% of the right hand and 17% of the right upper extremity. In June 2005, he voluntarily took a function capacity exam (“FCE”) which concluded he could perform medium level work activity. Significant deficits listed were “decreased grip of right upper extremity,” “decreased ROM of right 4th and 5th MCP, PIP, and DIP,” and “pain with pressure and palpation of hand.” The FCE documented Poissenot’s reported pain at a level two out of ten, with ten being the highest pain.

Poissenot returned to work after the accident with some accommodation as a deputy at the same juvenile facility. He remained employed with the SBPSO until 1 ^September 2005, when he was furloughed, along with every other juvenile detention center employee, as a result of Hurricane Katrina. In April 2006, he filed a Disputed Claim for Compensation with the Office of Worker’s Compensation.

After a trial on the merits, the WCJ awarded him SEBs under La. R.S. 23:1221(3)(a), finding that, due to the injury, he was unable to earn 90% of the wages he was earning at the time of the injury. In so holding, the WCJ relied on “one | situation recognized by the courts in which SEB is due ... when the injured employee cannot perform his past job and there is no other proof of employability,” which the WCJ found was also the case here. The WCJ found “there is no question Poissenot cannot return to work as a deputy sheriff without significant accommodation [and] [t]hus far no other parish has been willing to make those accommodations.” Holding that “no earning capacity [was] established at the time of trial,” the WCJ calculated benefits based upon “zero earning capacity.” Further, because SBPSO offered no vocational rehabilitation post termination or further employment at a different position, the WCJ awarded Poissenot penalties and attorney fees finding this failure arbitrary and capricious. SBPSO appealed and the Fourth Circuit Court of Appeal affirmed the judgment holding, “Poissenot has effectively demonstrated that he cannot perform the same type of work that he was performing prior to the accident.” Poissenot v. St. Bernard Parish Sheriffs Office, 09-636 (La.App. 4 Cir. 11/24/09), 26 So.3d 829, 834. We granted the SBPSO’s writ application, which asserted (1) that the court of appeal used an incorrect standard in determining Poissenot was entitled to SEBs, and (2) that the WCJ committed manifest error in holding Poissenot met his initial burden of proof that his injury resulted in his inability to earn 90% of his pre-accident wages, and, in awarding Poissenot penalties and attorney fees. Poissenot v. St. Bernard Parish Sheriffs Office, 09-2793 (La.4/23/10), 32 So.3d 809.

DISCUSSION

“The purpose of [SEBs] is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident.” Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556. An employee is entitled to receive SEBs if he sustains a work-related injury that results in his | .inability to earn ninety percent (90%) or more of his average pre-injury wage. La. R.S. 23:1221(3)(a). Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Banks, supra at 556. “In determining if an injured employee has made out a prima facie case of entitlement to [SEBs], the trial court may and should take into account all those factors which might bear on an employee’s ability to earn a wage.” Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1009 (La.1989) (quoting Gaspard v. St. Paul Fire and Marine Ins. Co., 483 So.2d 1037, 1039 (La.App. 3 Cir.1985)). It is only when the employee overcomes this initial step that the burden shifts to the employer to prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employee’s community or reasonable geographic location. La. R.S. 23:1221(3)(c)(i); Banks, supra at 556; Daigle, supra at 1009.

| fiThe analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that workers’ compensation is to be liberally construed in favor of coverage. Daigle, supra at 1007. Further, factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129, 132; Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733, 737-38. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfin-der’s conclusion was a reasonable one. Freeman, supra at 737-38; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993); Mari v. Hill, 505 So.2d 1120, 1127 (La.1987). “In determining whether a [WCJ’s] finding that an employee has met his initial burden of proving entitlement to SEBs is manifestly erroneous, a reviewing court must examine all evidence that bears upon the employee’s inability to earn 90% or more of his pre-injury wages.” Seal v. Gaylord Container Corp., 97-0688 (La.12/2/97), 704 So.2d 1161, 1166.

We initially note that the court of appeal applied the incorrect standard in determining whether Mr. Poissenot met his initial burden of proof. In its opinion, the court of appeal held, “[t]he record before us does not indicate that Mr. Pois-senot could perform the same type of medium level work that he performed before his accident in any occupation.” Poisse-not, supra at 833. Likewise, the WCJ awarded SEBs based on his finding that Poissenot “cannot return to work as a Deputy Sheriff without significant accommodation” and that no other parish had been willing to make those accommodations, and stated the law as entitling a claimant to SEBs where he cannot return to his past job and there is no other proof of employability. This is [7an incorrect standard. La. R.S. 23:1221(3)(a) requires that a claimant prove by a preponderance of the evidence that he is unable to earn wages equal to ninety percent or more of wages he was earning at the time of injury “whether or not the same or similar occupation as that in which the employee was customarily engaged when injured.” (Emphasis added). The statute clearly places its focus on the amount of wages earned before and after the accident, not the type of occupation or the type of work performed. In reviewing the lower courts’ judgments, we will examine all the evidence that bears upon the employee’s inability to earn 90% or more of his pre-injury wages to determine whether Poissenot met his initial burden.

As a deputy, Mr. Poissenot earned an average monthly wage of $1,694.50. To meet his burden, he would have to show by a preponderance of the evidence that he was unable to earn at least $1,525.05 a month because of his injury. The evidence put on at trial was very limited. Poissenot and his former supervisor, Joseph Giroux, were the only two witnesses called by the claimant. Poissenot testified that before the accident he would feed the prisoners, issue medications to them, take them to court and doctors appointment, and subdue them when necessary. After the accident, he was assigned to light duty with SBPSO. Both Poissenot and Giroux testified that after the accident, Poissenot could not carry a gun, qualify with a weapon, go into cells, or provide backup to other deputies. His duties included watching surveillance cameras, answering the phone, and doing paperwork. He testified he was in a lot of pain and that he could not use the ring or pinkie finger of his right hand, but he could write and type on a computer, albeit slowly. Poissenot further testified he has no education beyond high school, and, aside from a job as a baker, all of his job | ¡¡experience was in law enforcement. He also testified that he could not find employment due to his injury. In support of this assertion, he testified he left his resume at the Employment Center in St. Tammany Parish and was contacted by the St. Tammany Sheriffs Office about a job as a bailiff, he applied for a job with a security company in Slidell, a printing company in St. Tammany Parish, and a tourist center in Florida. No one offered him employment. However, he testified that but for Hurricane Katrina, he would still be working for SBPSO.

SBPSO contends Poissenot did not met the initial burden set out in La. R.S. 23:1221(3) according to the objective evidence, and that therefore, the burden of proof never shifted to it to prove anything. SBPSO did not present any witnesses but entered into evidence a deposition given by Dr. George and the FCE. That evidence showed that Dr. George released Poissenot to return to full work on December 1, 2004. Further, the FCE confirmed Dr. George’s findings that Poissenot could return to medium level work activity, specifically stating:

This client could return to medium level work activity. This client could perform continuous forward bending in sitting, standing tolerance, sitting tolerance, left upper extremity coordination, stair climbing, rotation in sitting and standing, walking, and repetitive squatting. This client could perform frequent crawling, right upper extremity coordination, step ladder climbing, and elevated work.

His employment before the injury was also classified as medium level work. Most significantly, SBPSO argues, Poissenot returned to work after his injury at the same salary and was able to work overtime. He continued to work there from October of 2004 to September 2005, when he was furloughed along with every other SBPSO ^employee because of Hurricane Katrina. Thus, SBPSO claims, the injury did not cause him to lose him job, Hurricane Katrina did.

Implicit in La. R.S. 23:1221(3)’s requirement that the employee show that a work-related injury resulted in his inability to earn 90% of his pre-injury wages is a showing that the injury, and not some other cause, resulted in his inability to retain his pre-injury job. Where the employee goes back to his pre-injury job and then is terminated for a reason beyond the employer’s control and totally unrelated to the injury, this strongly suggests that his inability to earn 90% of his pre-injury wages was not the result of his injury and that the employee is in fact able to earn 90% of his pre-injury wages in some capacity. In Chaisson v. Cajun Bag and Supply Co., 97-1225 (La.3/4/98), 708 So. 375, 384, this Court held that the employer’s offer to place the employee “in a position that [she] could do [in spite of the injury] defeated the employee’s claim for SEB.” Further, the Court held that “[t]his conclusion is bolstered by the fact that [the employee] was able to perform, without difficulty, substantially similar work [for a different employer] for 9 months.” Id. at 384.

We recognize jurisprudence from this Court that a claimant’s ability to return to work for his former employer does not always foreclose entitlement to SEBs. In Allen v. City of Shreveport, 618 So.2d 386, 388, 389 (La.1993), where the employee was able to return to his pre-injury sedentary job but the position had been eliminated before he could return, the Court held that “[i]t is irrelevant whether the claimant is physically able to perform his former sedentary job that is no longer available” and that “[t]he relevant question is whether the claimant is partially disabled and whether he is able to earn 90% of the wages he was earning prior to the injury.” However, unlike in Allen, where the doctor released the claimant to return to light duty in a sedentary job with specific physical limitations, here Poissenot was cleared to return 110to medium duty work with no specific physical restrictions which would prevent him from earning 90% of his pre-injury wages. Moreover, Poisse-not’s post-injury work was not sedentary. While there are certainly limits to the tasks he can perform because of his broken right finger, common sense tells us that there are plenty of jobs an otherwise healthy man with his depth of experience and training would be able to perform. Indeed, after remand in Allen, this Court distinguished the facts in Allen from eases where claimants were not awarded SEBs because they were released to full work status with no restrictions but could not find employment due to a depressed labor market. Allen v. City of Shreveport, 93-2928 (La.5/23/94), 637 So.2d 123, 127 (citing Babineaux v. Brown & Root, Inc., 543 So.2d 946 (La.App. 5 Cir.1989) and Miller v. Great Southern Oil & Gas Co., Inc., 503 So.2d 679 (La.App. 3 Cir.1987)). Further, while an employer cannot avoid paying compensation benefits to an injured employee by creating a job that accommodates the injured employee’s work restrictions and then firing the injured employee, Synigal v. Vanguard Car Rental, 06-761 (La.App. 5 Cir. 1/30/07), 951 So.2d 1197; Palmer v. Alliance Compressors, 05-478 (La.App. 3 Cir. 11/2/05), 917 So.2d 510, writ denied, 05-2440 (La.3/24/06), 925 So.2d 1231; Brumley v. Nantachie Oil Co., 04-1404 (La.App. 3 Cir. 3/16/05), 900 So.2d 944, this is not such a case. Here, Poisse-not was terminated along with every other employee for reasons beyond SBPSO’s control one year following the accident; he was not hired and fired as a pretext to deny him benefits. See Taylor v. Columbia Chemicals, 32, 411 (La.App. 2 Cir. 10/27/99), 744 So.2d 704 (no entitlement to SEBs where employee would have and could have continued her former employment but for the plant being closed).

The trial court found Poissenot met his burden, even though he continued in his pre-injury employment, because the employer offered significant accommodations |nthat no other sheriffs office would make. However, while no other sheriffs office may have been willing to hire him with his right hand limitations, this is too narrow an inquiry. As stated, the law does not require that a plaintiff be unable to engage in the same or similar employment as when he was injured to qualify for SEBs. The law requires the trial court take into account all those factors which might bear on an employee’s ability to earn a wage in determining if an injured employee has made out a prima facie case of entitlement to SEBs. While Poissenot was turned down for employment after he was furloughed from SBPSO, two of the jobs he applied for were in law enforcement where the use of a gun would be necessary-and Poissenot knew he was no longer certified to use a gun. The other job, at a printing company, required heavy lifting, which is not a medium level job. Although he testified he “spoke to someone about helping out in the bakeries” in St. Tammany, and “spoke with family members who were working at a Walmart about a stock job,” there was no evidence he actually applied for those jobs. Moreover, in this case, Poissenot’s employment post-injury shows, at the very least, that he was able to answer phones, monitor cameras, sit for extended periods of time, and perform clerical work, and his prior work experience with over 20 years as an investigator with the NOPD and DA’s office shows he is highly trained. Further, both the functional capacity exam voluntarily taken by Mr. Poissenot and his own doctor cleared him to return to medium level work, and his pre-accident job was also rated medium level work. The most significant negative factor in all of the medical evaluations conducted was Poissenot’s complaint of pain, which the doctors evidently did not feel prevented him from returning to medium level work. Further, while undergoing the FCE, Poissenot reported his pain level as a two, on a ten point scale. There was simply no medical evidence presented supporting Poissenot’s claim that he is unable to earn 90% of his | ^.pre-injury wages. Finally, while Poissenot argues that he returned to his job with significant accommodations as a “sheltered employee,” La. R.S. 23:1221(3)(b) provides that the amount the employee actually receives from sheltered employment is to be considered in the amount the employee is able to earn under La. R.S. 23:1221(3)(a).

In this case, the majority of evidence and testimony presented focused on the fact that he could not do the same type of work or same level of work as he was doing before the injury. However, under La. R.S. 23:1221, that is not the proper focus. Only when the claimant meets his initial burden does it shift to the employer to show that the employee is physically able to perform a certain job and that the job was offered to the employee or that job was available to the employee in his or the employer’s community or reasonable geographic region. The burden does not shift to the employer merely because an employee proves he is unemployed at the time of trial or unable to obtain the same type of job as before the accident.

After review of the applicable law, we find the lower courts erred in finding Pois-senot met his initial burden of proof because they focused on whether Poissenot could return to the same type of work he was performing before the accident, rather than on whether Poissenot could earn 90% of his pre-injury wages. A review of all the evidence that bears upon Poissenot’s ability to earn 90% or more of his pre-injury wages reflects Poissenot did not meet his initial burden; therefore, the burden never shifted to SBPSO and thus he is not entitled to SEBs. Further, because | iaPoissenot is not entitled to SEBs, he is not entitled to attorney fees and penalties under La. R.S. 23:1201(1).

CONCLUSION

Under La. R.S. 23:1221(3)(a), a claimant is required to prove by a preponderance of the evidence that a work related injury resulted in his inability to earn wages equal to 90% or more at the time of the injury. Louisiana law does not require that a plaintiff be unable to engage in the same or similar occupation as when he was injured in order to qualify for SEBs. In this case, the medical evidence, as well as Poissenot’s actual work history after the accident, demonstrate he was capable of earning 90% of his pre-injury wages, and he failed to produce sufficient evidence showing otherwise. Because he failed to bear his initial burden of proof, the burden never shifted to SBPSO to prove that jobs existed for Poissenot in his geographic area that would have paid him 90% of his pre-injury wages. Therefore, the lower courts erred in awarding him SEBs and, because he is not entitled to SEBs, he cannot be awarded penalties and attorney fees under La. R.S. 23:1201(1).

DECREE

For the reasons stated herein, the judgment of the court of appeal granting Mr. Poissenot supplemental earnings benefits, penalties, and attorneys fees is reversed and judgment is rendered in favor of St. Bernard Parish Sheriffs Office.

REVERSED AND RENDERED.

KNOLL, J., dissents and assigns reasons.

KNOLL, J.,

dissenting.

hit is well settled that the provisions of the worker’s compensation act must be given a liberal interpretation in favor of the claimant. Daugherty v. Domino’s Pizza, 95-1394, pp. 8-9 (La.5/21/96), 674 So.2d 947, 953; Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1006 (La.1989). The threshold prerequisite to the recovery of supplemental earnings benefits, as set forth in La.Rev.Stat. 23:1221(3)(a), is that the employee’s injury result in his inability to earn wages equal to ninety percent or more of his average pre-injury wage. Daigle, 545 So.2d at 1007. The injured employee thus bears the burden of proving by a preponderance of the evidence that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Seal v. Gaylord Container Corp., 97-0688, p. 8 (La.12/2/97), 704 So.2d 1161, 1166. The analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that worker’s compensation law is to be liberally construed in favor of coverage. Daigle, 545 So.2d at 1007; Seal, 704 So.2d at 1166. In determining if an injured employee has made out a prima facie case of entitlement to supplemental earnings benefits, the trial court may and should take into account all those factors which might bear on an employee’s ability to earn a wage. Daigle, 545 So.2d at 1007.

|2In reversing the lower courts’ judgments, the majority errs by substituting its factual findings for those of the hearing officer. Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of review. Banks v. Indus. Roofing & Sheet Metal Works, 96-2840 p. 7 (La.7/1/97), 696 So.2d 551, 556. When determining whether a hearing officer’s finding that a claimant has met his initial burden of proving entitlement to SEBs was manifestly erroneous, a reviewing court must examine the record for all evidence that bears upon the claimant’s inability to earn 90% or more of his pre-injury wages. Seal, 704 So.2d at 1166. A review of the record in its entirety demonstrates the hearing officer’s finding that Mr. Poissenot met his initial burden was reasonable.

Dr. George diagnosed claimant with a permanent partial disability of 19% of the right hand and 17% of the right upper extremity. Claimant is right hand dominant. Claimant underwent three surgeries. He testified that Dr. George gave him the option of a fourth surgery but Dr. George was not very optimistic. Undisputed medical testimony indicates the claimant still has considerable stiffness and pain in his right hand. Claimant testified that he is limited in writing and typing because of the pain.

After his injury, claimant returned to work with the St. Bernard Parish Sheriffs Office (SBPSO) with accommodations for his limitations. Even with these accommodations, there was evidence before the workers’ compensation judge (WCJ) that Mr. Poissenot was unable to subdue prisoners or provide backup to the deputies. After he was furloughed from the SBPSO, he was unable to find work. Even though he sought jobs in non-law enforcement capacities (a printing company and a tourist center), he was rejected because of his disability. Nor could he return to his previous occupation of baking because of his disability.

|sThe majority opinion attempts to avoid applying the manifest error standard of review by stating the wrong standard was applied in determining whether SEBs were due. Specifically, the majority states: “The statute clearly places its focus on the amount of wages earned before and after the accident, not the type of occupation or the type of work performed.” Clearly, it is incorrect to interpret “wages” in a vacuum. It must be read with the “inability” to earn wages equal to ninety percent. The inability to earn the wages is a factual determination based upon the claimant’s disability. The attempt to distinguish between “the amount of wages” and the inability to earn the amount of wages, as though they are different concepts, is erroneous and ignores the underlying principles of the Workers’ Compensation Act, which is based upon the disability of the claimant.

The majority avers the WCJ mischarac-terized the law as entitling a claimant to SEBs where he cannot return to his past job and there is no other proof of employa-bility. However, a review of the WCJ’s written reasons for judgment clearly demonstrates the WCJ knew the employee’s burden of proof in seeking SEBs and that the claimant had to prove inability to earn ninety percent of his pre-injury wages whether or not in the same or similar occupation. The WCJ found Mr. Poisse-not alleged “he has been unable to obtain any work at which he would earn at least ninety percent of his pre-injury wage [and] [defendant offered no evidence to dispute or refute this fact.” (Emphasis supplied). A review of the written reasons and judgment in its entirety does not support the majority’s determination that the WCJ used the wrong standard in its decision. Therefore, the proper standard of review is a manifest error one and not de novo.

I am not persuaded by the majority’s attempt to distinguish this case from Allen v. City of Shreveport, supra, at p. 9. The majority finds Allen distinguishable because |4there, the claimant was released to sedentary work with light restrictions whereas Mr. Poissenot was cleared to return to medium duty work with no specific physical restrictions. The majority then states “common sense tells us that there are plenty of jobs an otherwise healthy man with his depth of experience and training would be able to perform.” This is not appropriate in a manifest error standard of review and cannot even be classified as weighing the evidence or inferring facts, as it is a statement not even based upon evidence or testimony from the trial. I find the rationale from Allen equally applicable here:

Plaintiffs medical and lay evidence established that his earning ability continued to be impaired, even though his doctor released him for ... employment with certain restrictions that would not prevent his performing the duties of his former position. Plaintiff undoubtedly was partially disabled, and his entitlement to supplemental earnings benefits was dependent upon his proof that the disability resulted in an inability to earn wages equal to at least ninety percent of his pre-injury wages. Plaintiff met this burden of proof by evidence, accepted by the trier of fact, that his medical restriction prevented him from working at available jobs....

Allen, 618 So.2d at 389.

Contrary to the majority, I find the record before the WCJ demonstrated by a preponderance of the evidence that claimant was unable to earn wages equal to ninety percent or more of wages he was earning at the time of the injury. A reviewing court may not reverse the lower court’s findings even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Dean v. Southmark Constr., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117. Because there is reasonable support in the evidence and testimony before the WCJ to support his finding the work-related injury resulted in claimant’s inability to earn ninety percent of the wages he was earning at the time of the accident, I respectfully dissent.

       Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.

      . Specifically, the reduction was to pin the little finger to the ring finger.

      . Dr. George testified Poissenot could bend the middle joints of his fingers but "has significant limitations in bending the joints in to fisted flexion, i.e., in making a fist, because the last two digits remain flexed.” Dr. George did not see him between April 2005 and January 2007, at which time he saw a little improvement in his arc of motion.

      . These abbreviations indicate decreased range of motion of the first, second, and third knuckles of the ring and little finger.

      . Employment records indicate he was paid for the following hours after his accident: (1) for the two weeks prior to October 5, 2004, he was paid 48 hours of illness pay and 38.17 hours of regular pay; (2) for the two weeks prior to October 20, 2004, November 5, 2004, November 19, 2004 and December 3, 2004, he was paid for 86.67 regular hours, respectively; (3) for the two weeks prior to December 20, 2004, he worked his regular hours, plus eight hours of overtime. On December 31, 2004, he underwent his third outpatient surgery. His paycheck for January 5, 2005, which encompassed that period, indicates he worked 78.67 regular hours plus three hours of overtime, and earned 8 hours of vacation pay. His paycheck dated January 20, 2005, indicates he earned 22.67 hours of regular pay plus 64 hours of illness pay. For the remainder of his employment with SBPSO, he consistently worked his full-time regular hours, and worked additional overtime hours for three of the pay periods.

      . La. R.S. 23:1221 provides in part:
      (3) Supplemental earnings benefits.
      (a) For injury resulting in the employee’s inability to earn wages equal to ninety percent or more of wages at time of injury, supplemental earnings benefits equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, 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 the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. Average monthly wages shall be computed by multiplying his "wages” by fifty-two and then dividing the quotient by twelve.
      (b) For purposes of Subparagraph (3)(a), of this Paragraph, the amount determined to be the wages the employee is able to earn in any month shall in no case be less than the sums actually received by the employee, including, but not limited to, earnings from odd-lot employment, sheltered employment, and employment while working in any pain.
      (c)(i) Notwithstanding the provisions of Subparagraph (b) of this Paragraph, for purposes of Subparagraph (a) of this Paragraph, if the employee is not engaged in any employment or self-employment, as described in Subparagraph (b) of this Paragraph, or is earning wages less than the employee is able to earn, the amount determined to be the wages the employee is able to earn in any month shall in no case be less than the sum the employee would have earned in any employment or self-employment, as described in Subparagraph (b) of this Paragraph, which he was physically able to perform, and (1) which he was offered or tendered by the employer or any other employer, or (2) which is proven available to the employee in the employee’s or employer’s community or reasonable geographic region.
      (ii) For purposes of Subsubparagraph (i) of this Subparagraph, if the employee establishes by clear and convincing evidence, unaided by any presumption of disability, that solely as a consequence of substantial pain, the employee cannot perform employment offered, tendered, or otherwise proven to be available to him, the employee shall be deemed incapable of performing such employment.

      . In Banks, we clarified the employer’s burden as follows:
      ... an employer may discharge its burden of proving job availability by establishing, at a minimum, the following, by competent evidence:
      (1) the existence of a suitable job within claimant's physical capabilities and within claimant’s or the employer’s community or reasonable geographic region;
      (2) the amount of wages that an employee with claimant’s experience and training can be expected to earn in that job; and
      (3)an actual position available for that particular job at the timé the claimant received notification of the job’s existence.
      By "suitable job,” we mean a job that claimant is not only physically capable of performing, but one that also falls within the limits of claimant’s age, experience, and education, unless, of course, the employer or potential employer is willing to provide any additional necessary training or education. 696 So.2d at 557.

      . This figure was arrived at by multiplying Mr. Poissenot’s average monthly wage of $1,694.50 by 90%, the percentage required in La. R.S. 23:1221(3).

      . However, the testimony reflects that deputies were not allowed to carry guns inside the facility.

      . Poissenot entered the Marine Corps after high school and was trained in a photo recon unit. He was then employed by the New Orleans Police Department for 16 years as a homicide and robbery investigator, and a forgery investigator. He then opened his own donut shop but left to work as an investigator for the Orleans Parish District Attorneys office, where he worked for 13 years until a new district attorney was elected. In 2002, he was hired by SBPSO.

      . La. R.S. 23:1221(3)(b) provides that, for purposes of La. R.S. 23:1221(3)(c), "the amount determined to be the wages the employee is able to earn ... shall in no case be less than the sums actually received by the employee, including but not limited to, earnings from odd-lot employment, sheltered employment, and employment while working in pain.”

      . La. R.S. 23:1201(1) states:
      Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, and without probable case, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims.


source: Caselaw Access Project

author: JOHNSON, Justice.

license: Public Domain

text:
    RED STICK STUDIO DEVELOPMENT, L.L.C. v. STATE of Louisiana by and through the DEPARTMENT OF ECONOMIC DEVELOPMENT; State of Louisiana by and through the Division of Administration; & State of Louisiana by and through the office of Entertainment Industries Development.
    No. 2010-C-0193.
    Supreme Court of Louisiana.
    Jan. 19, 2011.

      Kantrow, Spaht, Weaver & Blitzer, APLC, Connell Lee Archey, William Scott Keaty, Paul Holden Spaht, Carlos Alberto Romanach, Pamela Miller Perkins, Stephanie Gray LeGrange, Leu Anne Lester Gre-co, Baton Rouge, LA, for Applicant.
    Adams & Reese, LLP, Verne Thomas Clark, Jr., Michael Olive Pierson, for Respondent.
   JOHNSON, Justice.

hWe granted this writ application involving Louisiana’s motion picture investor tax credit to address the correct interpretation of La. R.S. 47:6007, specifically as amended by Act 456, Section 3(C) of the 2007 Regular Session of the Louisiana Legislature (“Act 456”). The issue raised is whether Section 3(C) of Act 456 provides a time limitation for expenditures which would qualify for tax credits such that no tax credits can be earned on expenditures incurred after January 1, 2010.

For the reasons that follow, we reverse the decision of the court of appeal, and hold that Section 3(C) of Act 456 provides that no tax credits may be earned on expenditures incurred after January 1, 2010.

FACTS AND PROCEDURAL HISTORY

The State of Louisiana provides for certain motion picture investor tax credits, including tax credits for “State-certified infrastructure projects,” set forth in La. R.S. |247:6007. Seeking to take advantage of these tax credits, Red Stick Studio Developments, L.L.C. (“Red Stick”) submitted an application for a State-certified infrastructure project comprised of full service motion picture production and post production facilities totaling $665,500,000 on February 27, 2007. At the time Red Stick submitted its application, a “State-certified infrastructure project” was defined as “an infrastructure project approved by the Governor’s Office of Film and Television Development and the Department of Economic Development. The term ‘infrastructure project’ shall not include movie theaters or other commercial exhibition facilities.” La. R.S. 47:6007(B)(9) (2005). The definition of “State-certified infrastructure project” was revised by Act 456 to “a film, video, television, and digital production and postproduction facility, and movable and immovable property and equipment related thereto, or any other facility which supports and is a necessary component of such proposed state-certified infrastructure project, all as determined and approved by the office, the secretary of the Department of Economic Development, and the division of administration under such terms and conditions as are authorized by this Section. The term ‘infrastructure project’ shall not include movie theaters or other commercial exhibition facilities.” La. R.S. 47:6007(B)(12) (2007).

The Louisiana motion picture investor tax credit program is administered by the Office of Entertainment Industry Development (“OEID”), an office within the State’s Department of Economic Development (“DED”). Red Stick’s application and fee were submitted in accordance with the requirements of La. R.S. 47:6007 (2005), |swhich generally required an applicant to file an application for motion picture investor tax credits with the OEID, and obtain approval of the project from the DED, OEID, and the Department of Administration (“DOA”) in order to receive an initial certification letter from the State approving the project as a State-certified infrastructure project.

At the time Red Stick filed its application with the State, La. R.S. 47:6007 generally provided for a tax credit of twenty-five percent of the base investment, and allowed an additional fifteen percent tax credit until January 1, 2008. Thus, the available tax credits totaled forty percent. However, during the 2007 Regular Session, while Red Stick’s application was pending, the Louisiana Legislature enacted Act 456, which amended La. R.S. 47:6007 to impose certain limits on-these tax credits. Act 456 included a “grandfather clause” relative to applications filed on or before August 1, 2007. Section 3(C) of Act 456 provides:

An application for an infrastructure project filed on or before August 1, 2007, shall have twenty-four months from the date of approval of the rules or January 1, 2008, whichever is earlier, in which to qualify for the forty percent tax credits earned on expenditures. Tax credits on infrastructure projects shall be considered earned in the year in which expenditures are made, provided that a minimum of twenty percent or ten million dollars of the total base investment provided for in the initial certification that is unique to film production infrastructure shall be expended before infrastructure tax credits can be earned on expenditures. The payment of tax credits may extend beyond or be made after the year expenditures are made. (Emphasis added)

|4Red Stick’s application proceeded through the State’s review and approval process, and Red Stick and the State negotiated terms and conditions relative to the proposed project. On August 27, 2007, the State issued an Initial Certification Letter to Red Stick for its proposed project. However, this letter also included paragraph (ii), containing the following language: “[S]ince this application was filed on or before August 1, 2007, the applicant shall have until January 1, 2010 to earn tax credits on this project.” Red Stick disagreed with the language in paragraph (ii), contending the State had confused “earning the credits” with “qualifying to earn the credits,” contrary to the language of Section 3(C).

Red Stick filed a Petition for Writ of Mandamus on November 13, 2008, asking the court to direct the State to remove the requirements contained in paragraph (ii) of the Initial Certification Letter and either not replace them or replace them with language taken directly from Section 3(C). Red Stick amended its petition for Mandamus, seeking a declaratory judgment that Section 3(C) does not provide a time limitation for expenditures which would qualify for tax credits and that tax credits may be earned on expenditures beyond January 1, 2010. Red Stick took the position that as long as it received the Initial Certification Letter, and made the minimum spend (i.e., twenty percent or $10 million) within twenty-four months of January 1, 2008 (i.e., January 1, 2010), it is entitled to forty percent tax credits on all expenditures until the project is completed. The State asserted that Red Stick is only entitled to forty percent tax credit on expenditures made by January 1, 2010, and entitled to no tax credits after that date.

On December 3, 2008, the parties entered into a stipulation pursuant to which the State provided Red Stick with a new Initial Certification Letter, subsequently issued on January 14, 2009, and replaced paragraph (ii) of the original letter with [ 5language citing Section 3(C) of Act 456. The parties further agreed that if a final judgment in the pending action declares, or if a future statutory amendment or enactment by the legislature provides, that Section 3(C) of Act 456 does not provide a time limitation for expenditures which would qualify for tax credits, and that tax credits may be earned on expenditures beyond January 1, 2010, then Red Stick shall be entitled to earn tax credits on this project for expenditures during a period of the lesser of sixty months from the date of final judgment or effective date of legislation, or seventy-eight months from the date of this initial certification letter. The writ of mandamus was dismissed with prejudice.

Red Stick’s declaratory judgment action came to trial on March 10, 11, 12, 13 and 16, 2009. The parties presented extensive evidence relative to Red Stick’s application process and the legislative history of Act 456, including testimony of various legislators and other witnesses regarding their understanding of Section 3(C) and legislative intent. Following trial, the trial court ruled in favor of Red Stick, finding the statute was clear and unambiguous and that Red Stick qualified for the tax credits when it received its pre-certification letter and made the minimum spend. The trial court held that Red Stick had from that point until it finishes the project to claim the forty percent tax credit. The stipulation between the parties was also made part of the judgment. Because it found the statute to be clear and unambiguous, the trial court stated it was not required to look to legislative intent. However, the court went on to note that even if it were to look at legislative intent, it was embodied in the testimony of Taylor Townsend, Chairman of the House and Ways Committee who authored Act 456 and supported Red Stick’s position.

The State appealed the trial court’s ruling regarding the interpretation of Section 3(C) and also challenged the trial court’s ruling allowing legislators and nonjlegisla-tors6 to give testimony regarding their interpretation of the statute and legislative intent. The court of appeal affirmed the trial court, finding that Section 3(C) of Act 456 is clear and unambiguous, and its application does not lead to absurd consequences. The court of appeal agreed with the trial court’s determination that the words “qualify for” as they are used in Section 3(C) mean that an application filed on or before August 1, 2007, must (1) apply for and receive its Initial Certification Letter and (2) spend a minimum of twenty percent or $10 million of the total base investment provided for in the Initial Certification Letter that is unique to film production infrastructure before January 1, 2010. Thereafter, an applicant is qualified to earn forty percent infrastructure tax credits for the life of the project.

In a footnote, the court of appeal stated that if it were to look past the language of Act 456 and consider other evidence of record in search of the intent of the Legislature, its conclusion would remain the same, i.e., that the Legislature passed Act 456 with no deadline for incurring expenditures for “grandfathered projects.” Noting the full record made by the trial court, the court of appeal found the Legislature intended to establish a minimum expenditure of $10 million or twenty percent of the total base investment to be expended within the twenty-four month time period before a project is able to earn any tax credits. Moreover, the court of appeal found no error in the trial court’s decision to allow numerous witnesses, including legislators, to testify concerning their interpretation of Section 3(C), citing La. R.S. 24:177. The court of appeal noted that La. R.S. 24:177 enumerates what [7“shaII not constitute proof or indicia of legislative intent,” and there is no prohibition on the use of trial testimony of legislators, or members of the executive branch.

The State of Louisiana filed a writ application with this Court, which we granted.

DISCUSSION

Tax credits for motion picture investors in Louisiana were first provided for in 1 s1992 with the enactment of La. R.S. 47:6007. The motion picture investor tax credit was created “to encourage development in Louisiana of a strong capital base for motion picture film, videotape, and television program productions, in order to achieve a more independent, self-supporting industry.” La. R.S. 47:6007(A) (1992). The State’s objectives in passing this legislation were to attract private investment for the production of motion pictures, videotape productions, and television programs which contain substantial Louisiana content; develop a tax infrastructure which encourages private investment; develop a tax infrastructure utilizing tax credits which encourage investments in multiple state-certified production projects; encourage increased employment opportunities within the film sector and increase competition with other states in fully developing economic development options within the film and video industry; and encourage new education curricula in order to provide a labor force trained in all aspects of film productions. Id. As originally enacted in 1992, this statute provided for tax credits to offset investment base losses for state-certified productions. La. R.S. 47:6007 (1992). In 2002, La. R.S. 47:6007 was amended to allow credits on investments by Louisiana companies in film to offset certain state tax liabilities on a dollar-for-dollar basis, regardless of whether there was a loss on that investment. The statute was amended again in 2003 and 2004.

In 2005, the legislature enacted Act 456 of 2005, substantially amending La. R.S. 47:6007. Act 456 of 2005 authorized for the first time income tax credits for “State-certified infrastructure projects.” The State’s objective was to encourage development of a Louisiana film, video, television and digital production and post-production infrastructure with state-of-the-art facilities. La. R.S. |fl47:6007(A)(2)(c) (2005). Relative to tax credits for infrastructure projects, Act 456 of 2005 provided that if the total base investment was greater than $300,000, each investor was allowed a tax credit of twenty-five percent of the base investment, and further allowed an additional fifteen percent tax credit until January 1, 2008. Thus, the available tax credits totaled forty percent.

During the 2007 Regular Session, the Legislature again amended La. R.S. 47:6007 by Act 456. Act 456 provided for infrastructure tax credits through January 1, 2009, but imposed limits on those tax credits for applications filed after August I, 2007. Act 456 limited infrastructure credits primarily by increasing and imposing a deadline on the minimum spend necessary to obtain credits, imposing a six-month deadline to begin construction, and imposing a $25 million per project cap on the tax credits. Of significance to the Red Stick infrastructure project is the grandfather clause set forth in Section 3(C) of Act 456, which addressed applications filed on or before August 1, 2007. (See supra, p. 3).

The issue before us is the correct interpretation of Section 3(C). Because this matter involves the interpretation of a statute, it is a question of law, and is thus reviewed by this Court under a de novo standard of review. Thibodeaux v. Donnell, 2008-2436, p. 3 (La.5/5/09), 9 So.3d 120, 122. After our review, we “render judgment on the record, without deference to the legal conclusions of the tribunals below. This court is the ultimate arbiter of the meaning of the laws of this state.” Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, Inc., 2006-0582, p. 9 (La.11/29/06), 943 So.2d 1037, 1045.

As this Court explained in M.J. Farms, Ltd. v. Exxon Mobil Corp.:

The function of statutory interpretation and the construction given to legislative acts rests with the judicial branch of the government. The rules of statutory construction are designed to ascertain and enforce the intent of the Legislature. Legislation is the solemn expression of hplegislative will and, thus, the interpretation of legislation is primarily the search for the legislative intent. We have often noted the paramount consideration in statutory interpretation is ascertainment of the legislative intent and the reason or reasons which prompted the Legislature to enact the law.
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. However, when the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law. Moreover, when the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole.

2007-2371, p. 13 (La.7/1/08), 998 So.2d 16, 27 (internal citations omitted). With these principles in mind, we examine the language of Section 3(C).

As previously stated, Section 3(C) of Act 456 provides:

An application for an infrastructure project filed on or before August 1, 2007, shall have twenty-four months from the date of approval of the rules or January 1, 2008, whichever is earlier, in which to qualify for the forty percent tax credits earned on expenditures. Tax credits on infrastructure projects shall be considered earned in the year in which expenditures are made, provided that a minimum of twenty percent or ten million dollars of the total base investment provided for in the initial certification that is unique to film production infrastructure shall be expended before infrastructure tax credits can be earned on expenditures. The payment of tax credits may extend beyond or be made after the year expenditures are made. (Emphasis added)

The State argues Section 3(C) is susceptible to more than one reasonable interpretation, and therefore is not clear and unambiguous. The State argues the use of the past tense in “qualify for tax credits earned on expenditures” clearly suggests that credits must be actually earned. The words do not say qualify for credits which “will be earned” or “to be earned.” Thus, the statute can be interpreted to mean an application does not qualify for tax credits until expenditures are made, and there is a twenty-four month window for making such expenditures. Moreover, the State argues that “qualify” means to be entitled to a particular benefit or privilege by | n fulfilling a necessary condition. Therefore, an applicant has twenty-four months within which to qualify for the forty percent tax credits earned on expenditures, and the necessary condition which must be fulfilled is the expenditure of monies. Further, the clear wording of the statute suggests the minimum spend is simply a condition for earning tax credits in the year in which expenditures are made.

Red Stick argues the words of Act 456 are clear and unambiguous. Red Stick asserts the State’s interpretation leads to absurd consequences because under that interpretation grandfathered projects would be treated worse under Act 456 than they would have been treated under Act 456 of 2005, where projects would have been entitled to at least twenty-five percent credits. Further, had the legislature intended to require that the entirety of the total base investment be made prior to the expiration of the twenty-four month period, there was no reason to require infrastructure projects spend at least twenty percent or $10 million dollars on the unique to film infrastructure elements.

Red Stick argues that “application” as used in Section 3(C) clearly means the filing submitted to obtain certification. Red Stick points to other usage of the word “qualify” in the statute which suggests that “qualify” means “submit an accepted application.” In the context of Act 456, the only reasonable conclusion is that the deadline set forth in the first sentence of Section 3(C) is a deadline for applications to qualify; a time limit within which an application must be determined to meet the minimum criteria and receive a preliminary certification/qualification letter. Thereafter a project qualified under this standard is entitled to receive forty percent tax credits of its total base investment provided it expended the minimum of twenty percent or $10 million.

Without much analysis or explanation, the lower courts both concluded that|12Act 456 is clear and unambiguous, and supports Red Stick’s position. However, in light of the language used in Section 3(C), and considering the parties’ arguments relative to its meaning, we find the words “to qualify for” to be ambiguous. Looking strictly at the language of Section 3(C), we find both of the interpretations provided by the parties to be plausible. Thus, to correctly interpret Section 3(C) of Act 456, we must examine the legislative intent behind the statute.

We first address the State’s argument that the appellate court erred in allowing the testimony of legislators and other witnesses concerning their interpretations of Section 3(C) to be admitted at trial. While the lower courts did not rely on this testimony to reach their decisions, we review this matter de novo, and have the benefit of the full record made below, including evidence of legislative history and the testimony of numerous witnesses, including legislators, relative to their understanding of Section 3(C). We do not find the testimony of the legislators or the other witnesses to be inadmissible per se in this case. Some of this testimony is relevant to understand the history of Act 456. Nevertheless, we decline to consider the opinions of the legislators or other witnesses as to the meaning of the statute or the legislature’s intent in passing Section 3(C) of Act 456. How Red Stick, State employees, or even an individual legislator interpreted Section 3(C) is irrelevant. The only relevant issue is the intent of the entire legislature in enacting Act 456.

This Court has recognized “that the post-enactment statements of legislators on legislative intent have generally been excluded as having ‘limited value to an understanding of the clear meaning and legal effect of a statute.’ ” East Baton Rouge Parish School Board v. Foster, 2002-2799, p. 22 (La.6/6/03), 851 So.2d 985, 999 (internal citations omitted). Further, “the understanding of one member, or even a few members, of the legislature is not determinative of legislative intent.” Id. This 113same viewpoint is generally applied in state and federal courts nationwide. See Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory Construction, § 48.16 (7th ed.2010); P. Raymond Lamonica & Jerry G. Jones, 20 Louisiana Civil Law Treatise: Statutory Construction, § 7.11(2010 ed.). Keeping these guidelines in mind, we look to the contemporaneous legislative history, made part of the record below, to determine the Legislature’s intent in passing Section 3(C) of Act 456.

Act 456 originated as House Bill 936 (“HB 936”), authored by Representative Taylor Townsend. The original version of the bill did not contain Section 3(C), or a grandfather clause. Discussions concerning adding a grandfather clause began in the House Ways and Means Committee. HB 936 was considered at a meeting of this Committee on May 29, 2007. At that meeting, Sherri McConnell, Director of OEID, gave testimony about the bill. She testified that the intent in drafting the bill was primarily to separate production and infrastructure tax credits more clearly. She explained that the proposed bill kept infrastructure credit at forty percent, but set a sunset date at the end of 2008, and also added a per project cap of $25 million. Ms. McConnell also testified regarding an amendment that was offered adding a “grandfather clause” to deal with projects that had applied under the previous law. The original amendment read:

It is the intention of this act that the approvals provided for in this act and the requirements for state certified infrastructure projects in R.S. 47:6007(C)(2) as amended and reenacted in this act shall be required for any state certified infrastructure project which has not applied for initial certification or pre-certification prior to the effective date of this act.

Relative to the proposed amendment, Ms. McConnell explained:

And then we do also have a grandfather clause that requires — that [14suggests that any projects that have, in fact, applied under the old law will continue to be under the old law. So they are grandfathered in. This — this new law will only — will only pertain to those projects that are — that—will apply after July 1st.

In response to questioning about potential exposure to the State, Ms. McConnell testified that if all pending infrastructure projects came to fruition, the exposure to the State fisc would be approximately $1.5 billion. Jerry Luke LeBlanc, Commissioner of Administration, also testified regarding the bill and amendments, explaining that the proposed bill allowed tax credits to be disbursed over several years.

HB 936 moved to the House Appropriations Committee. The transcript of the Committee meeting on June 7, 2007, reflects that Representative Townsend explained HB 936 to the Committee stating:

What this bill is, an attempt to clean up some of the problems that have developed and have arisen dealing with the film tax credit and particularly with respect to production credits versus-or tax credit for production versus tax credits for infrastructure.

He proceeded to “walk” the Committee through the bill. The bill contained a grandfather clause set forth in proposed Amendment 3. The proposed amendment provided the following language:

(C) an application for an infrastructure project filed on or before December 31, 2006, shall have twenty-four months from the date of receiving state pre-certification in which to claim the forty percent tax credits earned on expenditures. These tax credits shall be considered earned in the year in which expenditures are incurred, although the payment of tax credits may extend beyond or be made after, the year expenditures are incurred. (Emphasis added).

The Committee Chairman, Representative John Alario, asked that the amendment be offered, and Representative Townsend asked Bobby Freeman to speak about the amendment. Relative to Amendment 3, Mr. Freeman stated:

|1sIt provides that if an application had been filed for an infrastructure project prior to December 31, 2006, that you’ll have 24 months within which to complete your project in order to apply for your tax credits from the date of the state pre-certification. It also provides that the 40 percent tax credits earned on expenditures shall be considered earned in the year in which those expenditures are made, although you may agree with the film office and also with the commissioner of the administration to extend the period of payout beyond the year of expenditure. (Emphasis added)

He further explained: “And this would allow those large, big projects to be completed within a certain time.” (Emphasis added).

Later, relative to Amendment 3, Mr. Townsend stated:

Mr. Chairman, what I understand, so that we’re clear here, is that DED has no problem with Amendment No. 3, which is clearly a grandfather. Those applications, as Governor Freeman, where he say like [sic] in November, that would give them some additional time and they have no problem with that. (Emphasis added).

Bill Black, point person in the DOA for HB 936, was also present at the Committee meeting and expressed no disagreement with these statements. He testified relative to the bill, explaining that it gave the State authority to negotiate a multi-year payout of the tax credit.

HB 936 moved to the House floor, where it passed unanimously. The bill was then referred to the Senate Committee on Revenue and Fiscal Affairs. The transcript of the meeting of that Committee on June 20, 2007, shows that Ms. McConnell and Mr. Black both testified regarding the grandfather clause amendment. The transcript reflects the following colloquy occurred relative to the twenty-four month period (emphasis added):

CHAIRPERSON (Senator Willie Mount): All right. The staff will be working on those amendments. And let me just dovetail Senator Adley’s questions. Right below that on line 22 on page 19, is there any objection to shall have 24 months to 36 months? Is that a magic number, 24?
UNIDENTIFIED MALE SPEAKER: It’s a long time.
MS. MCCONNELL: It allows projects to continue to get 40 percent \ wof those infrastructure tax credits for an additional year. I would ask perhaps the division of administration might be able to address that question a little bit better than I could.
CHAIRPERSON: All right. Is there someone here on that? I’m not picking on you. I’m just curious as to how that — maybe the flexibility isn’t needed. I’m just asking.
MR. BLACK: Chairman, I’m Bill Black with the Division of the Administration in the Commissioner’s office and I handle film credit issues for him. This amendment, like many others, was not an administration amendment. It was added in House committee. It would allow those credits who filed before the December 31st date more time to ñnish their project than those who filed afterwards or those who have yet to file.
CHAIRPERSON: Okay.
MR. BLACK: It also would lock in more credit than the current law allows. One of the issues we have been concerned about throughout this process has been that the projects complete substantial amounts of infrastructure spending before they get the credit so that we’re seeing economic activity that in some form or fashion can offset some of this tax loss. As you expand that two year window of opportunity, the amount of activity in any particular period is going to go down. Now, I will tell you in conversations I’ve had, most people have felt fairly comfortable that they could get their spending done within the deadline that is in the primary bill, which is 1189.
CHAIRPERSON: So maybe even 24 is too extreme?
MR. BLACK: I think it’s — I won’t say it’s too extreme, but I think it probably is about as far out as it needs to reasonably yo. Beyond that point, they can diddle.

HB 936 then moved to the Senate floor, where it was amended to add a “minimum spend,” which initially provided for a twenty-five percent of the total base investment before any credits could be earned. The Senate also adopted an amendment providing that the twenty-four month period would commence running from the “effectiveness of all rules promulgated,” not the date of initial certification. HB 936 passed the Senate as amended.

When HB 936 returned to the House floor, Representative Townsend asked that the Senate amendments be rejected because he “was not sure of the effects” of 117the amendments, and he wanted to “make the statute as tight as possible.” The bill was then sent to a Conference Committee. The Conference Committee Report, dated June 28, 2007, recommended, in pertinent part, adoption of an amendment comprising the current language of Section 3(C). Specifically, the Conference Committee’s proposed amendment provided that the twenty-four month period would run from the approval of the rules or January 1, 2008, whichever is earlier; reduced the minimum spend to twenty percent, but added the requirement that it must be spent on investment “that is unique to film production infrastructure;” and changed the word “claim” to “qualify for” tax credits.

The Conference Committee Report was presented to the House and Senate during the final hours of the legislative session. The transcript of the House Floor Proceedings on June 28, 2007, reflects that Representative Townsend presented the Conference Committee Report and stated, in pertinent part:

And basically the bill is — I’m reporting to you the bill is almost in the posture it was when it left the House. There — it does allow for earned credits to be applied in the year after the money was spent even if not granted until years later. The Conference Committee also adopted a Senate Floor Amendment which allows infrastructure projects 24 months fi'otn final approval of the rules to continue to be eliyible for the 40 percent credits, but it added that if the rules are not approved by January 1 of 2008, the 24 months start running. This would keep people from, you know, trying to sabotage the rules or stymie the process. Any of the grandfathered infrastructure projects that apply before August 1st must spend a minimum of 20 percent of their approved budget or $10 million before they can earn the credits. And the report suggests that we — and that’s it. (Emphasis added).

The only question presented on the House floor was for a clarification that the time period was twenty-four months from January 1, 2008, and that January 1, 2008, was 11snot the deadline. The Conference Committee Report was adopted by the House.

The Conference Committee Report was presented to the Senate by Senator Adley. The only record of these proceedings simply demonstrates that the Senate unanimously voted to adopt the Conference Committee Report.

Based on the above legislative history, it is clear that the information presented to the Legislature regarding HB 936 provided an understanding that grandfathered projects had to be completed within the twenty-four month period to earn tax credits. While the initial proposed grandfather clause in the House Ways and Means Committee contemplated that pending projects would fall completely under the old (2005) law, the legislative history demonstrates that as the grandfather clause developed, subsequent changes and amendments imposed additional requirements or restrictions on grandfathered projects in order to receive tax credits. Testimony in the House Appropriations Committee on June 7, 2007, explained that grandfathered projects will “have 24 months -within which to complete” their projects; and the proposed amendment would allow larger projects “to be completed” within a certain time. In the Senate Committee on Revenue and Fiscal Affairs on June 20, 2007, questions and testimony demonstrate that no one saw a need to extend the twenty-four month period, and the DOA expressed an opinion that most of these projects believed they “could get their spending done” within that deadline. And, when Representative Townsend presented the Conference Committee Report on the House Floor, he stated that the grandfather amendment allowed these projects “to continue to be eligible for the 40 percent credits” for twenty-four months. He did not state that grandfathered projects would continue to be eligible for the forty percent credits for the life of the project.

Red Stick contends that the change of the word “claim” to “qualify for” during the Conference Committee was a substantive change that essentially changed the |19meaning of the proposed law. Red Stick relies on former Representative Townsend’s testimony that he considered this to be a substantive change, supporting Red Stick’s position. We find that Red Stick’s position is not supported by the record and legislative history. Evidence at trial demonstrates that the Conference Committee’s change of the words “claim tax credits” to “qualify for tax credits” was not a substantive change intending to change the meaning of this requirement from previous amendments. The evidence demonstrates that Ms. McConnell and Mr. Black were instrumental in this word change. Emails, written on the evening before the final day of the session, were introduced at trial wherein Mr. Black suggested that “claim” may not be the best word to use, and suggesting it should be changed to “receive” or “qualify for.” Mr. Black explained in the email that “claim” seemed to mean that the applicant had to submit his audited report within this time frame, and although he was “fine with that,” it may not be what the conferees meant. Ms. McConnell responded that he was correct and it needed to be fixed. Ms. McConnell then forwarded Mr. Black’s email to Allison Pryor, a staff attorney for the House Ways and Means Committee who was involved in the drafting, and with a note agreeing with Mr. Black and suggesting the language be changed to “qualify for.” In addition, the trial testimony of Senators Willie Mount and Ann Duplessis, who both served on the Conference Committee, was in agreement that neither recalled any discussion or debate about this word change, either in Committee or on the Senate floor. Further, had this change been presented as a substantive change, both agreed there would have been much discussion, and they would have recalled it. Moreover, [2nwhen Representative Townsend presented the Conference Committee Report on the House Floor, he did not present this word change as a substantive change, and, in fact, did not discuss the word change at all. Rather, he explained that the bill was essentially in the same posture as when it left the House. Based on the record, it is clear that the change of “claim” to “qualify for” was not intended to be a substantive change, and does not suggest an extension of the previously proposed twenty-four month period. The evidence demonstrates that the word change was simply meant to clarify that the audited cost report need not be filed within the twenty-four month period.

We hold that evidence comprising the contemporaneous legislative history of Act 456 supports the State’s position. The information and testimony presented to legislators in the House and Senate Committees and on the House and Senate floors unquestionably supports an understanding that the twenty-four month period was a window of time for applicants to complete their projects. Nothing in this legislative history suggests that the legislature intended that grandfathered projects be entitled to earn forty percent tax credits for the life of the projects, with no deadline or time limit for incurring expenditures. Moreover, to allow a forty percent tax credit for the life of these projects would provide them with a greater benefit than was afforded under the 2005 law.

CONCLUSION

Transcripts of relevant Committee meetings and Floor Proceedings demonstrate that as the grandfather clause developed, it was clearly presented to the Legislature as requiring grandfathered projects to be completed within the twenty-four month period in order to be entitled to tax credits. This allowed grandfathered projects the benefit of receiving the forty-percent tax credits for a longer period of time than was allowed under the 2005 law. Based on the legislative history, and considering the [⅞1 language of the statute, we hold that Section 3(C) of Act 456 means that a grandfathered project, such as the one submitted by Red Stick, is only entitled to forty percent tax credits on expenditures incurred by January 1, 2010.

DECREE

REVERSED.

      . Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.

      . In its original application, Red Stick sought tax credits for an infrastructure project totaling $955,000,000. However, the application was revised to exclude particular elements (housing components and portions involved in TIF financing) that were not subject to tax credits under the statute.

      . OEID is the successor office of the Governor’s Office of Film and Television Development. La. R.S. 47:6007(A)(7).

      . After review and approval of the project by the DED, OEID and DOA, an initial certification is issued to the applicant approving the project as a state-certified infrastructure project upon such terms and conditions set by the aforementioned state agencies. After an initial certification letter is issued and accepted by the applicant, the applicant is required to submit a cost report of infrastructure expenditures audited and certified by an independent certified public accountant to the DED, OEID and DOA for review. After determining whether the infrastructure expenditures qualify for tax credits, the DED, OEID and DOA will certify the tax credits based upon the approved Louisiana infrastructure expenditures. Tax credits certified by the DED, OEID and DOA can be applied to offset against the Louisiana taxpayer’s income tax liability, or they may be transferred.

      . It is undisputed that rules were not promulgated prior to January 1, 2008. Thus, the relevant date for our purposes is twenty-four months from January 1, 2008 (i.e., January 1, 2010).

      . Red Stick Studio Development, L.L.C. v. State of Louisiana, et al., 2009-1347 (La.App. 1 Cir. 12/23/09), 30 So.3d 803.

      . La. R.S. 24:177 provides:
      A. When the meaning of a law cannot be ascertained by the application of the provisions of Chapter 2 of the Preliminary Title of the Louisiana Civil Code and Chapter 1 of Title 1 of the Louisiana Revised Statutes of 1950, the court shall consider the intent of the legislature.
      B. (1) The text of a law is the best evidence of legislative intent.
      (2)(a) The occasion and necessity for the law, the circumstances under which it was enacted, concepts of reasonableness, and contemporaneous legislative history may also be considered in determining legislative intent.
      (b) The legislature may express the intended meaning of a law in a duly adopted concurrent resolution, by the same vote and, except for gubernatorial veto and time limitations for introduction, according to the same procedures and formalities required for enactment of that law.
      C. The legislature is presumed to have enacted an article or statute in light of the preceding law involving the same subject matter and court decisions construing those articles or statutes, and where the new article or statute is worded differently from the preceding law, the legislature is presumed to have intended to change the law.
      D. A bill introduced but which does not become law is not competent evidence of legislative intent. Any action by the legislature other than enactment of law or adoption of a resolution as provided in Subpara-graph (B)(2)(b) of this Section shall not constitute a confession as to the meaning of the law extant.
      E. (1) The keyword, one-liner, summary and adjoining information, abstract, digest, and other words and phrases contained outside the sections of a bill following the enacting clause are solely to provide the members of the legislature with general in-dicia of the content of the bill and are not subject to amendment by the legislature or any committee of the legislature and shall not constitute proof or indicia of legislative intent.
      (2) Fiscal and actuarial notes provide the legislature with an analysis of the potential fiscal impact of a bill based on presumptions made by the legislative fiscal officer, actuary, economist, or analyst preparing the note and shall not constitute proof or indicia of legislative intent.
      (3) Committee minutes are summary reports of committee proceedings and shall not constitute proof or indicia of legislative intent.
      (4) Words and phrases not constituting the substance of an amendment or the recommendations of a conference committee report, and any other legislative staff documents which are not subject to amendment by the legislature or any committee of the legislature, shall not constitute proof or in-dicia of legislative intent.

      . Specifically, the State of Louisiana by and through the Department of Economic Development; State of Louisiana by and through the Division of Administration; and the State of Louisiana by and through the Office of Entertainment Industries Development.

      . Red Stick Studio Development, L.L.C. v. State of Louisiana, et al., 2010-0193 (La.4/16/10), 31 So.3d 1069.

      . 1992 La. Acts 894.

      . 2002 La. Acts 6.

      . 2003 La. Acts 1240; 2004 La. Acts 7.

      . Seventy-two additional legislators eventually signed the legislation as co-authors.

      . HB 936 provided for infrastructure tax credits to end on January 1, 2009.

      . Bobby Freeman, former Lieutenant Governor of Louisiana and former State Representative, testified as a representative of Studio City, an infrastructure project which was planned for West Baton Rouge Parish.

      . A conference committee is composed of three members from each house, the purpose of which is to propose to the two houses a means to resolve differences in a bill when the house of origin refuses to concur in amendments adopted by the opposite house. See La. House of Rep. Rules 6.14, 7.11, and 8.27.

      . It was undisputed at trial that no meeting of the Conference Committee occurred and no additional evidence was presented to the Conference Committee members. Thus, there is no relevant video or transcription.

      . As explained earlier in our opinion, we do not find the testimony of the legislators to be inadmissible per se. While we decline to consider the opinions of former Representative Townsend or Senators Mount and Duplessis as to the meaning of Act 456, we find this particular legislative testimony relevant to understand the history of Act 456. Specifically, this testimony is relevant to aid us in determining what information was presented to legislators in Committee or on the Senate Floor.


author: PER CURIAME.

text:
    Frank TATE v. WOMAN’S HOSPITAL FOUNDATION d/b/a Woman’s Hospital.
    No. 2010-C-0425.
    Supreme Court of Louisiana.
    Jan. 19, 2011.

      Kullman Firm New Orleans, LA by Charles Hatfield Hollis, for Applicant.
    Jill Craft, Attorney at Law, LLC, Jill L. Craft Alford, Crystal Guillory LaFleur, for Respondent.
   PER CURIAME.

_JjAt issue in this case is whether the court of appeal erred in finding there are genuine issues of material fact precluding summary judgment on plaintiffs invasion of privacy claim. For the reasons that follow, we conclude defendant is entitled to judgment as a matter of law, and therefore reverse the judgment of the court of appeal.

UNDERLYING FACTS AND PROCEDURAL HISTORY

Plaintiff, Frank Tate, was employed by defendant, Woman’s Hospital Foundation d/b/a Woman’s Hospital, in its maintenance department. In 2006, one of plaintiffs coworkers reported to a supervisor that someone “put urine in his toolbox.” Defendant commenced an investigation into the incident. When no one admitted responsibility, defendant instructed all of the maintenance department employees to submit to DNA testing, and advised that their employment would be terminated if they declined to provide samples (in the form of saliva swabs) for the DNA testing.

Plaintiff informed defendant he was not responsible for the incident, and that he opposed the DNA testing. Nonetheless, plaintiff ultimately signed a DNA [ ^collection and analysis authorization form, although he included the handwritten notation: “Protest. I [think] this DNA testing is illegal.”

Defendant retained ReliaGene Technologies, Inc. (“ReliaGene”) to perform the testing. Plaintiffs DNA sample swab was returned to him. However, according to plaintiff, ReliaGene retained an electronic copy of plaintiffs DNA profile in its computer database, along with a paper copy for accreditation purposes.

After the completion of testing, defendant sent an e-mail update to the maintenance department employees to inform them that the investigation’s findings were inconclusive. As a result, defendant ended the investigation, and no further action was taken.

Several months later, plaintiff filed the instant suit against defendant, alleging in his petition causes of action for intentional infliction of emotional distress, defamation, abuse of rights, and invasion of privacy.

| ^Defendant moved for summary judgment. After a hearing, the district court granted summary judgment in favor of defendant, and dismissed plaintiffs suit with prejudice.

Plaintiff appealed. A divided five-judge panel of the court of appeal affirmed in part and reversed in part. Tate v. Woman’s Foundation d/b/a Woman’s Hospital, 08-2577 (La.App. 1 Cir. 1/29/10), 30 So.3d 283. The. court found no error in the judgment of the district court dismissing plaintiffs claims for intentional infliction of emotional distress, defamation, and abuse of rights. However, a majority of the court reversed the district court’s judgment with regard to plaintiffs invasion of privacy claim, concluding there was a genuine issue of material fact as to whether plaintiffs consent to DNA testing was vitiated by the duress as a result of the threat of losing his job if he did not submit a DNA sample. One judge dissented, finding plaintiff was unable to produce factual support sufficient to establish he would be able to satisfy the evidentiary burden of proof on his invasion of privacy claim at trial.

Upon defendant’s application, we granted certiorari to determine the correctness of the court of appeal’s judgment. Tate v. Woman’s Hospital Foundation d/b/a Woman’s Hospital, 10-0425 (La.5/7/10), 34 So.3d 852. The sole issue presented for our consideration is whether defendant is entitled to summary judgment on plaintiffs claim for invasion of privacy.

DISCUSSION

The tort of invasion of privacy is directed at redressing the damage which an individual suffers when legally recognized elements of his right to privacy have been ^violated. Gorman v. Swaggart, 524 So.2d 915, 920 (La.App. 4 Cir.1988). The right to privacy is defined in Louisiana as “the right to be let alone.” Pack v. Wise, 155 So.2d 909, 913 (La.App. 3rd Cir.1963), writ denied, 245 La. 84, 157 So.2d 231 (1963). A tort of invasion of privacy can occur in four ways: (1) by appropriating an individual’s name or likeness; (2) by unreasonably intruding on physical solitude or seclusion; (3) by giving publicity which unreasonably places a person in a false light before the public; and (4) by unreasonable public disclosure of embarrassing private facts. Jaubert v. Crowley Post-Signal, Inc., 375 So.2d 1386 (La.1979).

In the instant case, defendant argues no unreasonable intrusion on plaintiffs privacy occurred, because it is undisputed that plaintiff voluntarily consented to the taking of his DNA. Courts have held that when a person consents to the release of information, there is no invasion of privacy. See Adams v. Kaiser Aluminum, 96-429 (La.App. 5 Cir. 11/14/96), 685 So.2d 269 (holding a release of information relating to plaintiffs rehabilitation did not constitute an invasion of privacy because plaintiff specifically authorized the release of the information); see also State v. Furino, 451 So.2d 1139, 1141 (La.App. 3rd Cir.5/16/84), writ denied, 456 So.2d 1017 (La.1984) (“[a] person who consents to a search clearly could not be heard to complain of the violation of his privacy”).

Although plaintiff does not dispute he signed the form consenting to provide the DNA sample, he argues his consent to the testing was vitiated by duress. In particular, he asserts he did not freely give his consent, because defendant threatened to terminate his employment if he refused.

In In re J.M.P., 528 So.2d 1002, 1008 (La.1988), we explained that consent may be vitiated “when it has been obtained by duress of such a nature as to cause a reasonable fear of unjust and considerable injury to a party’s person, property, or | ¡¡reputation.” However, La. Civ.Code art. 1962 provides “[a] threat of doing a lawful act or a threat of exercising a right does not constitute duress.” Relying on that article, the jurisprudence has uniformly held the threat of being discharged from at-will employment does not constitute duress. See Cellular One, Inc. v. Boyd, 94-1783 (La.App. 1 Cir. 3/3/95), 653 So.2d 30, 34-35, writ denied, 95-1367 (La.9/15/95), 660 So.2d 449; Allied Bruce Terminix Company, Inc. v. Guillory, 94-319 (La.App. 3rd Cir.11/2/94), 649 So.2d 652; Litigation Reprographics and Support Services, Inc. v. Scott, 599 So.2d 922, 923 (La.App. 4th Cir.1992).

Plaintiff does not dispute he is an at-will employee for purposes of La. Civ. Code art. 2747, and that he could be terminated for any reason at defendant’s discretion. Thus, the mere threat of termination, an act which defendant had a legal right to do, cannot constitute duress.

Plaintiff next argues his consent was obtained through misrepresentation. Specifically, he asserts the defendant misled him, because the consent form promised all remnants of his DNA sample would be returned; however, his DNA/genetic record has not been fully returned or destroyed.

Consent may be vitiated by fraud. La. Civ.Code art. 1948. Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Shelton v. Standard/700 Associates, 01-0587 (La.10/16/01), 798 So.2d 60.

| (iThe consent form signed by plaintiff provides, “the sample I provide will be returned to me and any artifacts created in the analysis process will be destroyed.” It is undisputed the DNA sample was returned to plaintiff. However, plaintiff asserts the term “artifacts” refers to the electronic and paper copies of his DNA profile, which he claims were not destroyed.

Defendant presented the deposition of its vice-president of human resources, Stanley Shelton, who testified he “never said to anybody, ever, that the DNA profile would be destroyed.”

Dr. Megan D. Shaffer of ReliaGene testified the company retained electronic and paper copies of the DNA testing, which she referred to as “amplified products” of the testing procedure, for accreditation purposes. However, she testified the person who requests the sample was not told these copies would be retained:

Q: What is told to the person who requests DNA samples as far as what’s going to happen to those samples once testing is finished?
A: The larger majority of the customers are usually crime labs and police departments and that sort of thing so they are aware of what’s going to happen and they generally don’t ask. But if someone asks we tell them that extracts are returned and amplified product is destroyed.

Based on this evidence, we conclude plaintiff is unable to establish defendant made any misrepresentations to plaintiff with the intention either to obtain an unjust advantage for itself or to cause a loss or inconvenience to plaintiff. Therefore, plaintiffs consent was not vitiated pursuant to La. Civ.Code art. 1948.

In summary, we find plaintiffs consent to the DNA testing was not vitiated. Because he consented to the testing, he is unable to establish an invasion of privacy |7as a matter of law. Therefore, the district court correctly granted summary judgment in favor of defendant on plaintiffs invasion of privacy claim, and the court of appeal erred in reversing that judgment.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed insofar as it denies defendant’s motion for summary judgment on plaintiffs claim for invasion of privacy. The judgment of the district court granting summary judgment on this claim is reinstated, and plaintiffs suit is dismissed with prejudice. All costs in this court are assessed against plaintiff.

       Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.

      . The DNA collections and analysis authorization form provided, in pertinent part:
      Woman's Hospital has requested that I allow Buccal swabbing of the inside of my cheek(s) in order to collect a DNA sample that will be analyzed by ReliaGene Technologies in relation to an investigation of vandalism of a Maintenance employee's toolbox.
      Woman's Hospital has assured me that my DNA sample will not be used for any purpose. other than what is stated above, that ReliaGene will never know my identity, that the sample I provide will be returned to me and any artifacts created in the analysis process will be destroyed and I will be advised of that destruction, and that Relia-Gene will not share my DNA profile or release the results of their analysis with any local, state, federal or international agency, or any entity or individual other than Stan Shelton at Woman’s Hospital.
      By my signature below, I acknowledge the above and grant permission for the Buccal swabbing of the inside of my cheek(s) and the DNA analysis of that biological sample as part of the investigation of the vandalism of a Maintenance employee's toolbox. My signature does not mean that I agree in principle with the testing, it simply means that I understand the above and am willing to cooperate with the investigation.
      Plaintiff struck through the word "willing,” and wrote the word "forced” below it.

      . As discussed earlier, the court of appeal affirmed the judgment of the district court dismissing plaintiff's claims for intentional infliction of emotional distress, defamation, and abuse of rights. Plaintiff did not seek review of this judgment. Therefore, the portion of the court of appeal's judgment dismissing these claims is now final.

      . Plaintiff also argues defendant violated La. R.S. 23:368, because it required or collected protected genetic information from an employee. We see no merit to this argument. La. R.S. 23:368 is contained in Part VII, Chapter 3-A of Title 23 of the Revised Statutes. Chapter 3-A is entitled “Prohibited Discrimination Employment,” and Part VII is entitled “Genetic Information and Privacy.” Senator Hines, the author of the bill which became La. R.S. 23:368, explained its purpose was to "prevent discrimination in employment of an individual based on the results of genetic testing.” Considering the context of the statute and its legislative history, we conclude La. R.S. 23:368 was intended to prohibit an employer from using genetic information for discriminatory purposes, but was not intended to create a general prohibition of the use of genetic testing by an employee in a non-discriminatory context. Therefore, La. R.S. 23:368 is inapplicable under the facts of the instant case.

      . Deposition of Dr. Megan Shaffer at p. 19 [emphasis added].