author: CHARLES R. JONES, Judge. CHARLES R. JONES, Judge.

text:
    Thomas WYNNE v. William TROTTER and Special T, L.L.C.
    No. 2010-CA-0090.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 2010.
    Opinion Granting Reconsideration Aug. 4, 2010.

      Dewey M. Scandurro, Scandurro and Layrisson, L.L.C., New Orleans, LA, for Thomas Wynne and Janna Wynne.
    Michael J. Maginnis, Daniel R. Estrada, Maginnis & Hurley, APLC, New Orleans, LA, for Defendants/Appellants.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, and Judge MICHAEL E. KIRBY).
   CHARLES R. JONES, Judge.

| ,The defendant-Appellants, William Trotter and Special T, L.L.C. appeal the district court’s judgment in favor of the plaintiffs-Appellees, Thomas Wynne and Janna Wynne. We amend and affirmed as amended.

On August 14, 2003, Mr. Wynne, a yacht broker and expert fishing vessel operator, accompanied Wiley Horton and two friends on a weekend fishing trip in Venice, Louisiana, aboard the MW Tuner, a 29' foot fishing vessel. A tropical storm on August 15 stalled the fishing trip, and the MW Tuner remained docked at the Cypress Cove Marina. During the following day, Mr. Wynne and a fishing companion noticed a large vessel approaching in the direct path of the MW Tuner. That vessel, a 43' foot MW Special T, was owned by Special T, L.L.C. and operated by Mr. Trotter, who was unable to control the boat due to a loss of power.

As the MW Special T approached the dock, Mr. Trotter attempted to restart the vessel’s engines to prevent a possible collision with the MW Tuner. After Mr. Trotter sent out an alarm to notify the fishermen aboard the MW Tuner of his intentions, Mr. Wynne advised Mr. Trotter not to turn on the MW Special T’s engines. Meanwhile, to prevent the MW Tuner from being damaged in the event of a collision, crew members of the vessel positioned rubber fenders alongside the LMW Tuner. Mr. Wynne remained on the port side of the MW Tuner’s bow platform and held the fenders close to the boat with his hands, to ensure that they stayed in place.

Mr. Trotter proceeded with attempts to restart the MW Special' T’s engines and within feet from the MW Tuner, the engines finally restarted. Shortly thereafter, Mr. Wynne alleged that a water surge was created by the M/V Special T’s engines, which subsequently caused him to lose balance and fall. In his own description, Mr. Wynne was then “knock jumped” onto the dock. Mr. Wynne declined treatment from the emergency medical technicians who were called to the scene of the accident. However, two days later on August 17, 2003, he sought treatment from a college acquaintance named Dr. James C. McIntosh, an orthopaedic surgeon. Dr. McIntosh then discovered that Mr. Wynne had fractured the calcaneus bone in his right heel.

Mr. and Mrs. Wynne filed suit against Mr. Trotter and Special T, L.L.C. on September 30, 2009, in the 25th Judicial District Court of Plaquemines Parish, alleging negligence on the part of Mr. Trotter and Special T, L.L.C. A judgment was issued in favor of the Wynnes, granting Mr. Wynne $185,000 in damages for pain and suffering, and $25,000 for loss of consortium to Mrs. Wynne. The district court also added Louisiana judicial prejudgment interest in the amount of $81,329.46 to the past and future damages awarded to the Wynnes, from the date of demand. This timely appeal followed.

|aMr. Trotter and Special T, L.L.C. raise eight (8) assignments of error on appeal:

1. The district court erred in finding complete fault on the part of Mr. Trotter and Special T, L.L.C. with respect to causation and damages to Mr. Wynne, while finding no fault on the part of Mr. Wynne.
2. The district court incorrectly concluded that a “sudden emergency” was caused by Mr. Trotter and Special T, L.L.C.
3. The district court erred in awarding $185,000 in damages for pain and suffering to Mr. Wynne.
4. The district court erred in granting Mrs. Wynne damages in the amount of $25,000, for loss of consortium.
5. With respect to the damages awarded, the district court erred in applying the Louisiana judicial interest rate in lieu of the Federal maritime rate.
6. The district court erred in applying prejudgment interest rates on its awards to the Wynnes, for past and future damages.
7. The district court erred in assigning fault to Special T, L.L.C.
8. The district court erred in failing to rule on Mr. Trotter and Special T, L.L.C.’s written objections to the depositions submitted by the Wynnes, before a judgment was entered.

Upon reviewing a district court’s factual findings in a civil case, appellate courts are to apply the “manifest error” standard of review. Rando v. Anco Insulations, Inc., 08-1163, p. 29 (La.5/22/09), 16 So.3d 1065, 1087. In applying this standard, an appellate court can not disturb a trial court’s findings “unless that finding is clearly wrong in light of the record reviewed in its entirety.” Noel v. Housing Authority of New Orleans, 09-0711, p. 2 (La.App. 4 Cir. 3/31/10), 36 So.3d 982. Moreover, “when two permissible views of evidence exist, the fact finder’s choice between them can not be manifestly erroneous or clearly wrong.” Moody v. Cummings, 09-1233, p. 4 (LaApp. 4 Cir. 4/14/10), 37 So.3d 1054.

Since the issues of negligence and liability are the subject of Mr. Trotter and Special T, L.L.C.’s first, second, and seventh assignments of error, we shall address them together. In Mr. Trotter and Special T, L.L.C.’s first and second assignments of error, they contend that the district court erred in determining that Mr. Trotter was at fault for the M/V Special T’s collision with the M/V Tuner, and for Mr. Wynne’s subsequent injuries, without finding that Mr. Wynne was partially at fault.

On the issue of liability, general maritime cases tried in state courts are to be reviewed using the “manifest error standard.” Milstead v. Diamond M Offshore, Inc., 95-2446 (La.7/2/96), 676 So.2d 89, 96, 1996 A.M.C. 2341. Utilizing a duty-risk analysis, Louisiana courts dictate that five elements must established in determining whether a person is negligent: “(1) the defendant had a duty to conform his or her conduct to a specific standard of care (2) the defendant failed to conform to this standard of care, (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries; (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries; and (5) actual damages”. Brewer v. J.B. Hunt Transport, Inc., 09-1408, p. 7 (La.3/16/10), 35 So.3d 230.

One threshold inquiry in any negligence action is whether the defendant owed the plaintiff a duty. Federal maritime Inland Navigational Rule 5 denotes that a vessel has a duty to “maintain proper look-out by sight and hearing, as well as by all available means in the prevailing circumstances so as to make a full ^appraisal of the situation and of the risk of collision.” 33 U.S.C. § 2005. This Court previously applied the Inland Navigational Rules, holding that the pilot of a vessel has a duty to navigate the vessel with proper lookout, at a safe speed. See e.g., Koepp v. Sea-Land Service, Inc., 93-2562 (La.App. 4 Cir. 11/17/94), 645 So.2d 1269, 1276. In regards to causation, it has been held that when a moving vessel allides with a stationary object, the former is presumed at fault. The Oregon, 158 U.S. 186, 197, 15 S.Ct. 804, 809, 39 L.Ed. 943 (1895), Dow Chemical Company v. Dixie Carriers, Inc., 463 F.2d 120, 122, n. 4 (5th Cir.1972).

Mr. Trotter and Special T, L.L.C. argue that Mr. Wynne did not act reasonably in positioning himself on the port bow of the M/V Tuner. In doing so, according to Mr. Trotter and Special T, L.L.C., Mr. Wynne created a perilous situation and should therefore be found partially responsible for his injuries. Mr. Trotter and Special T, L.L.C. further claim that a sudden emergency was not created from the M/V Special T’s engines because Mr. Wynne had sufficient time to avoid any injury. Therefore, they contend, Mr. Trotter acted reasonably in restarting the engines so as to avoid an accident.

Mr. and Mrs. Wynne counter that the district court’s findings should not be disturbed. They assert that Mr. Wynne acted reasonably in protecting the M/V Tuner from its pending collision with the M/V Special T, as confirmed at trial by the defense’s own expert, Ben Sheets. Also, the Wynnes argue that Mr. Trotter’s negligent operation of the M/V Special T created a sudden emergency which knocked Mr. Wynne onto the marina’s deck, subsequently shattering the calcaneus bone in his right heel.

| fiOur review of the record indicates that upon Mr. Trotter’s releasing of the siren to indicate his attempts to restart the M/V Special T’s engines, Mr. Wynne (an expert operator of large vessels) responded with a warning not to start the engines. Mr. Trotter ignored this warning and busied himself with trying to work the M/V Special T’s controls. As the M/V Special T moved closer to the M/V Tuner, the M/V Special T’s engines restarted, and Mr. Trotter attempted to maneuver the vessel by putting its starboard engine in reverse. Such actions caused the M/V Special T to accelerate directly towards the M/V Tuner. In his report, Mr. Trotter’s expert witness Mr. Sheets noted that “moving vessels do not usually collide with stationary objects unless the vessel is mishandled in some way.” Therefore Mr. Sheet’s observation, corroborated with the district court’s findings, leads this Court to find that Mr. Trotter breached his duty to exercise reasonable care in operating the M/V Special T.

We also find that Mr. Trotter did in fact cause the M/V Special T to collide with the docked M/V Tuner. According to maritime law, “every vessel shall use all available means appropriate ... to determine if [a] risk of collision exists.” 33 U.S.C. § 2007(a). The accident could have been avoided had Mr. Trotter not ventured out to sea on the M/V Special T during a tropical storm. However, even if the district court determined that Mr. Trotter acted reasonably in operating the M/V Special T during a tropical storm, the fact still remains that he failed to explore an alternative route — one that would have not required the M/V Special T to enter the marina. According to the Inland Navigational Rule 8, “if there is sufficient sea room, alteration of course alone may be the most effective action to avoid a close-quarters situation ...” 33 U.S.C. § 2008(c). Lastly, Mr. Trotter could have heeded Mr. Wynne’s warning and stopped his attempts to restart the M/V l7Special T’s engines. Maritime law denotes that “if necessary to avoid collision or allow more time to assess the situation, a vessel shall slacken her speed or take all way off by stopping or reversing her means of propulsion”. 33 U.S.C. § 2008(e). In failing to utilize any of these options, we find that the M/V Special T would not have collided with the Mr. Tuner, but for the actions of Mr. Trotter.

We find that Mr. Wynne however, did act reasonably in positioning himself on the M/V Tuner’s port bow. Mr. Wynne, Mr. Horton, and Ed Bell (Mr. Trotter’s eyewitness), all agree that the M/V Special T drifted at an angle in the direct path of the M/V Tuner’s port bow. Not expecting Mr. Trotter to restart the M/V Special T’s engines, Mr. Wynne remained on the port bow to ensure that the rubber fenders would stay in place, so as to avoid any possible damage to the M/V Tuner in the event of a collision with the M/V Special T. Mr. Trotter does not contest these witnesses’ statements as to the projected path of the M/V Special T. Also, Mr. Trotter’s own expert witness, Mr. Sheets, agreed that Mr. Wynne was in the best position to defend the M/V Tuner from the M/V Special T, and that standing inside of the vessel’s bow would have rendered Mr. Wynne incapable of defending the boat. Therefore, since Mr. Wynne was in the best position to defend the M/V Tuner, it can not be said that he is at fault for the collision.

Because he should have reasonably foreseen that restarting the M/V Special T’s engines would cause harm to Mr. Wynne, Mr. Trotter’s actions proximately caused the injuries of Mr. Wynne. When entering an area where other vessels are docked, a moving vessel must “take into consideration the reasonable effects to be anticipated from its speed and motion through the water.” New Orleans Steamboat Co. v. M/T Hellespont Glory, 562 F.Supp. 391, 392 (E.D.La.1983). As the M/V Special T drifted closer to the M/V Tuner, Mr. Trotter continued to resume his | ^attempts of restarting the M/V Special T’s engines, despite the fact that the vessel was within a few feet of the M/V Tuner. Furthermore, in restarting the engines of the M/V Special T at an angle directly to where Mr. Wynne was positioned, Mr. Trotter should have foreseen that a sudden increase in speed would cause a powerful water surge that could knock Mr. Wynne off of the boat.

After losing his balance from the water surge caused by the M/V Special T’s engines, Mr. Wynne took reasonable measures to avoid falling into the water, as cited by defense witness Ed Burger. Upon landing on the dock, Mr. Wynne shattered his calcaneus bone, as noted by Dr. McIntosh. While Mr. Trotter and Special T, L.L.C. do not dispute that Mr. Wynne’s involuntary fall onto the dock caused him injury, they do contend that his actions were not reasonable, thus relieving them from liability for Mr. Wynne’s injuries. In determining whether a plaintiff is at fault for his own injuries, this Court has previously applied the “sudden emergency doctrine”, which states:

a person is not negligent in failing to avoid injury to themselves if he suddenly finds himself in a position of imminent peril without sufficient time to consider and weigh all the circumstances or best means that may be adopted to avoid the impending risk of danger.

Marigny v. Allstate Ins., 95-0952 (La.App. 4 Cir. 1/31/96), 667 So.2d 1229, 1231. Because of the sudden and unexpected water surge caused by the M/V Special T’s engines, Mr. Wynne was unable to safely place himself onto the dock to avoid the risk of being injured.

In Koepp v. Sea-Land Service Inc., 93-2562 (La.App. 4 Cir. 11/17/94), 645 So.2d 1269, this Court found that due to an unexpected wave wash caused by the pilot-defendant’s negligent operation of a vessel, the plaintiff was not negligent in | Tailing to avoid any injuries he received because he did not have time to properly avoid the injury by getting off the boat. Similarly, we agree that in creating a sudden emergency, Mr. Trotter legally caused the injuries to Mr. Wynne.

Based on our review, the district court’s finding that Mr. Wynne’s injuries directly resulted from the negligent actions of Mr. Trotter was not manifestly erroneous nor clearly wrong. This assignment of error is without merit.

In addition, Mr. Trotter and Special T, L.L.C.’s seventh assignment of error contends that the district court incorrectly found that Special T, L.L.C. was liable for the M/V Special T’s collision with the M/V Tuner.

Under general maritime law, “A vessel is liable in rem for maritime collisions caused by the fault of its compulsory pilot.” Probo II London v. Isla Santay MV, 92 F.3d 361, 365 (5th Cir.1996). Furthermore, a vessel owner is liable to an injured party under the tort of negligent entrustment if shown that the vessel owner had knowledge or privity of the operator’s acts of negligence. Farrell Lines, Inc. v. Jones, 530 F.2d 7, 9 (5th Cir.1976), citing 46 U.S.C.App. § 183.

Mr. Trotter and Special T, L.L.C. incorrectly rely upon Kermarec v. Compagnie Generate Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959), for the assertion that Mr. Wynne can not pursue a claim of unseaworthiness against Special T, L.L.C. In Kermarec, the Supreme Court held that persons aboard a vessel as mere social guests can not recover from the vessel’s owner for any injuries sustained while aboard the vessel. Id. at 1269. Their reliance on this case is misplaced because Kermarec does not apply to collisions caused by a guest who causes injury to persons aboard other vessels. Mr. Wynne was not a guest passenger aboard the M/V Special T. Also, the owner of the M/V Special T (Mr. Trotter’s younger brother) was negligent in entrusting Mr. Trotter with the vessel, |10in light of Mr. Trotter’s inexperience with operating the MTV Special T. This inexperience became more apparent the day following the accident, when Mr. Trotter crossed into the path of the MTV Tuner again, almost creating a second collision. For the aforementioned reasons, we find that the district court’s finding that Special T, L.L.C. was liable for both the accident and Mr. Wynne’s subsequent injuries was not manifestly erroneous nor clearly wrong. This assignment of error is without merit.

In their third and fourth assignments of error, Mr. Trotter and Special T, L.L.C. allege that the district court’s damage awards to Mr. Wynne for pain and suffering, and Mrs. Wynne’s damage award for loss of consortium was erroneous.

Generally, a trial court has vast discretion in its determination of damages; and an appellate court can not disturb these findings if there is no abuse of discretion. La. Civ.Code. Art. 2324.1; Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607. In previous cases, this Court has upheld a trial court’s award for damages. See e.g., Todd v. Delta Queen Steamboat Co., 07-1518 (La.App. 4 Cir. 8/6/08), 15 So.3d 107.

As justification for the $185,000 award in pain and suffering damages, Mr. Wynne cites comparative jurisprudence which granted similar amounts to plaintiffs who received similar injuries. See, Istre v. ABC Insurance Company, 517 So.2d 1225 (La.App. 4 Cir.1987); LeBleu v. Dynamic Industrial Constructors, Inc., 526 So.2d 1184 (La.App. 3 Cir.1988); Sallis v. City of Bossier, 28,483 (La.App. 2 Cir. 9/25/96), 680 So.2d 1333. Mr. Trotter and Special T, L.L.C. contest Mr. Wynne’s Inreliance upon these cases; however, this contention lacks merit for two pivotal reasons. For one, the disability ratings assessed to the plaintiffs in each case do not drastically differ from Dr. McIntosh’s finding that Mr. Wynne incurred a 12% impairment to his right leg and foot. Second, Mr. Trotter and Special T, L.L.C. fail to acknowledge the fact that like the other plaintiffs in the cases cited, Mr. Wynne is now partially disabled, possessing a permanent limp and losing his ability to run and stand for extended time periods.

Mr. Trotter and Special T, L.L.C. also contest the district court’s inclusion of Mr. Wynne’s subtalar joint arthritis in its determination of damages based on the accident. They cite Dr. McIntosh’s prediction that the accident would not cause any inflammation in Mr. Wynne’s subtalar joints.

In Housley v. Cerise, 579 So.2d 973, 980 (La.1991), the court found that an injury is presumed to have been caused by an accident if:

before the accident, the injured person was in good health, but commencing with the accident, the symptoms of the disabling condition appear and continuously manifests themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.

Prior to the boating accident, Mr. Wynne complained of no subtalar joint injuries. However, two days after the boating accident, Mr. Wynne complained to Dr. McIntosh of soreness in his subtalar joints. In further treatment, Mr. Wynne also received epidural injections into his subtalar joints by Dr. William Savoca. Therefore, applying the holding in Housley, we find that the district court did have the discretion to include Mr. Wynne’s subtalar injuries in its appropriation of damages.

112With respect to the district court’s $25,000 award to Mrs. Wynne for loss of consortium, this Court has previously held that a party can recover for loss of consortium based on: (1) loss of love and affection; (2) loss of society and companionship; (3) impairment of sexual relations: (4) loss of performance of material services; (5) loss of financial support; (6) loss of aid and assistance; and (7) loss of fidelity. Thonn v. Cook, 03-0763, p. 14 (La.App. 4 Cir. 12/10/03), 863 So.2d 628, 639. Moreover, “a cause of action for loss of consortium arises when the injured party’s condition deteriorates to such an extent that his spouse is actually deprived of his consortium, service, and society.” Delphen v. Dep’t of Transp. and Dev., 94-1261 (La.App. 4 Cir. 5/24/95), 657 So.2d 328, 337.

Three months after her husband’s injury, Mrs. Wynne’s household and parenting chores increased due to her husband’s immobility. Also, Mr. Wynne’s permanent limp and inability to run has affected the family’s extracurricular activities, including hiking and walking together, and the coaching of his son’s basketball team by Mr. Wynne. Lastly, while the couple’s sexual relationship was not impaired, Mr. and Mrs. Wynne now sleep in separate beds because of Mr. Wynne’s restless sleeping habits. Bearing these factors in mind, the lifestyle of the Wynne family was drastically altered as a result of Mr. Wynne’s injuries. Therefore, it can not be said that the district court abused its discretion in awarding loss of consortium damages to Mrs. Wynne.

Based on this analysis, we find that the district court’s determination of pain and suffering damages to Mr. Wynne and loss of consortium damages to Mrs. Wynne did not constitute an abuse of discretion. This assignment of error lacks merit.

|13In their fifth and sixth assignment of error, Mr. Trotter and Special T, L.L.C. argue that the district court erred in applying the Louisiana judicial prejudgment interest rate to Mr. and Mrs. Wynne, for their past and future damage awards (specifically to Mr. and Mrs. Wynne’s future damage awards).

To overturn the district court’s determination on its desired application of law, an appellant “must demonstrate that the challenged holdings of a prior panel are clearly erroneous and would work an injustice”. Todd Shipyards Corp. v. Auto Transp., S.A., 763 F.2d 745, 752 (5th Cir. 1985). Specifically, a trial court has the discretion to set the rate of prejudgment interest and can refer to either Louisiana law or federal maritime law. Id.

Mr. Trotter and Special T, L.L.C. argue that the district court erred in failing to apply the federal maritime interest rate of .37% to Mr. and Mrs. Wynne’s awards, citing 28 U.S.C. § 1961(a). However, Mr. Trotter and Special T, L.L.C.’s reliance on the federal maritime statute is erroneous, as the imposition of a federal maritime interest rate only applies to “judgment[s] in a civil case recovered in a district court ... to be calculated from the date of the entry of the judgment.” 28 U.S.C. § 1961(a). Therefore, the statute cited by Mr. Trotter and Special T, L.L.C. only applies to posi-judgments interest, and not interest made on pre-judgments. Applying the holding from Todd Shipyards Corp., the district court had the option of choosing either Louisiana law or federal maritime law; and therefore, it can not be said that its application of Louisiana law was clearly erroneous and would work an injustice. Therefore, we find that this assignment of error lacks merit.

We note however, that the district court did err in awarding prejudgment interest to the Wynnes’ awards for future damages. In Milstead v. Diamond M Offshore Inc., 95-2446 (La.7/2/96), 676 So.2d 89, 97, the Supreme Court noted |14that federal courts generally do not award prejudgment interest to awards for future damages. Moreover, this Court has previously found that “prejudgment interest may not be awarded on a judgment for future damages, as it amounts to a double recovery.” Smith v. Tidewater Inc., 04-0195 (La.App. 4 Cir. 3/2/05), 918 So.2d 1, 17, 2005 A.M.C. 972. Thus, we find that the award of prejudgment interest to Mr. and Mrs. Wynne for future' damages was erroneous.

It should also be mentioned that the district court awarded prejudgment interest, from the date of judicial demand. Though Mr. Trotter and Special T, L.L.C. do not contest this decision, such award was manifestly erroneous. In maritime law, a trial court is to award prejudgment interest from the date of the injury. Todd Shipyards Corp., 763 F.2d at 752. Also, in Corliss v. Elevating Boats, Inc., 599 So.2d 434, 439 (La.App. 4 Cir.1992), this Court reversed a district court’s decision to award interest from the date of judicial demand, and amended the judgment to award interest from the date of injury. We therefore find the district court committed legal error in awarding prejudgment interest to Mr. and Mrs. Wynne’s damages from the date of demand.

Based on this analysis, we find that the district court did not err in applying the Louisiana judicial prejudgment interest rate to Mr. and Mrs. Wynne’s award. However, we do find that the district court’s decision to award prejudgment interest to Mr. and Mrs. Wynne’s future damages from the date of demand to be manifestly erroneous or clearly wrong. Thus, we amend the judgment of the district court and vacate the award of prejudgment interest to Mr. and Mrs. Wynne’s past damages, from the date of Mr. Wynne’s injury.

| iSThe eighth and final assignment of error raised by Mr. Trotter and Special T, L.L.C. is that the district court erred in failing to expressly rule on objections to depositions submitted by Mr. and Mrs. Wynne before a judgment was entered.

This court has previously held that “when a judgment is silent as to relief requested, the judgment is deemed to have denied that relief.” Lazaro v. New Orleans Brass, 05-0591, p. 20 (La.App. 4 Cir. 5/26/06), 933 So.2d 817, 830. (citing Succession of Lane, 95-0558 (La.App. 4 Cir. 9/28/95), 662 So.2d 82).

Mr. Trotter and Special T, L.L.C. attempt to dispute the credibility of some of the witnesses’ statements, by making various objections to depositions submitted by Mr. Wynne. However, bearing the holding from Lazaro in mind, this Court finds that the district court’s silence on these issues constituted her overruling of Mr. Trotter’s and Special T, L.L.C.’s objections. Therefore, this assignment of error lacks merit.

DECREE

For the foregoing reasons, we amend the district court’s judgment in part to vacate the prejudgment interest rate applied to Mr. and Mrs. Wynne’s past damage awards, from the date of injury. We also amend the district court’s judgment in part to vacate the prejudgment interest rate applied to Mr. and Mrs. Wynne’s future damage awards. In all other respects, the judgment of the district court is affirmed.

AMENDED AND AFFIRMED AS AMENDED

l,ON APPLICATION FOR REHEARING

CHARLES R. JONES, Judge.

We grant rehearing to the Appellees, Mr. and Mrs. Wynne, for the sole purpose of clarifying the decree of this Court in the following respects:

1. the award of prejudgment interest, and
2. the calculation of the future damage award.

In our decree, we stated, in pertinent part:

We amend the district court’s judgment in part to vacate the prejudgment interest rate applied to Mr. and Mrs. Wynne’s past damage award, from the date of injury.

The Wynnes are correct in arguing in their application for rehearing, that some clarification was required in order to prevent a misinterpretation in the language in the decree of this Court. The law clearly states that under maritime law, a district court is to award prejudgment interest from the date of the injury. See Todd Shipyards Corp., v. Auto Transportation S.A., 763 F.2d 745, 752 (5th Cir.1985); Corliss v. Elevating Boats, Inc., 599 So.2d 434, 438 (La.App. 4 Cir.1992). We therefore find that this argument has merit, and amend the decree to specify that the district court judgment award prejudgment interest from the date of injury.

L.The Wynnes also argue in their application for rehearing, that this Court was correct in amending the judgment of the district court by vacating the portion of prejudgment interest attributable to future damages. The Wynnes further argue that “neither Judge Lobrano, nor this Court has quantified the amount of past versus future damages.... ” Thus, they request that this Court either remand to the district court for the calculation of future damages, or that this Court make the calculation. We agree.

The district court is in the best position to make the calculation for future damages. However, our opinion was clear that the district court erred in calculating prejudgment interest for future damages as applying such interest is akin to a “double recovery”. We reasoned:

... [T]he district court did err in awarding prejudgment interest to the Wynnes’ awards for future damages. In Milstead v. Diamond M Offshore Inc., 95-2446 (La.7/2/96), 676 So.2d 89, 97, the Supreme Court noted that federal courts generally do not award prejudgment interest to awards for future damages. Moreover, this Court has previously found that “prejudgment interest may not be awarded on a judgment for future damages, as it amounts to a double recovery.” Smith v. Tidewater Inc., 04-0195 (La.App. 4 Cir. 3/2/05), 918 So.2d 1, 17, 2005 A.M.C. 972. Thus, we find that the award of prejudgment interest to Mr. and Mrs. Wynne for future damages was erroneous.

Our decree was clear that the judgment of the district court was vacated only with respect to the interest applied to the future damage award. However, since there is no clear apportionment of past and future damages, the district court shall apportion its general damage award into past and future components, and calculate prejudgment interest as to all past losses from date of injury.

| .(¡Therefore, the decree of this Court, dated June 25, 2010, is now amended to read as follows:

DECREE

For the foregoing reasons, we amend the judgment of the district court in part to vacate the prejudgment interest rate applied to the past damage awards of Mr. and Mrs. Wynne, and to award prejudgment interest to the damage awards from the date of injury. We also amend the judgment of the district court, in part, to vacate the prejudgment interest applied to the award of future damages sustained by Mr. and Mrs. Wynne. Further, we remand the matter to the district court for an apportionment of its general damages award into past and future components, and order the district court to apply prejudgment interest to the past damage award. Finally, in all other respects, the judgment of the district court is affirmed.

APPLICATION FOR REHEARING GRANTED; JUDGMENT AMENDED AND AFFIRMED AS AMENDED; REMANDED

      . The record indicates that Mr. Wynne stated that he was "hit into being knocked” onto the deck.

      . An allision is defined as the contact of a vessel with a stationary object; and this term is used interchangeably with collision. Black's Law Dictionary, (9th ed.2009)

      . The record indicates that Mr. Trotter fled the scene after the accident, and failed to inquire about the condition of the M/V Tuner or its crew members.

      . The record indicates that Mr. Trotter’s testimony in regards to his boating experience was impeached due to his own discrepancies. In his deposition, he testified that he had never operated the M/V Special T before the day of the accident; however at trial, Mr. Trotter claimed to have operated vessels similar to the size of the M/V Special T.

      . Dr. Savoca is an interventional radiologist who has consulted with Dr. McIntosh regarding Mr. Wynne.


source: Caselaw Access Project

author:
THIBODEAUX, Chief Judge. GREMILLION, Judge, ULYSSES GENE THIBODEAUX, Chief Judge.
      GREMILLION, Judge,

license: Public Domain

text:
    CENTRAL LOUISIANA AMBULATORY SURGICAL CENTER, INC. (Bridget Huie) v. PAYLESS SHOESOURCE, INC.
    Nos. 10-86, 10-91, 10-92, 10-96, 10-97, 10-99, 10-100, 10-115, 10-117, 10-118.
    Court of Appeal of Louisiana, Third Circuit.
    July 28, 2010.
    Rehearing Granted in Part, Denied in Part Oct. 20, 2010.
    Opinion on Rehearing Oct. 20, 2010.

      Roger Anthony Javier, The Javier Law Firm, New Orleans, LA, for Defendant/Appellant, Payless Shoesource, Inc.
    Richard Bray Williams, Williams Family Law Firm, LLC, Natchitoches, LA, for Plaintiff/Appellee, Central Louisiana Ambulatory Surgical Center, Inc. (Bridget Huie).
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SHANNON J. GREMILLION, and DAVID E. C HATE LAIN, Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   THIBODEAUX, Chief Judge.

hThe plaintiff-appellee, Central Louisiana Ambulatory Surgical Center, Inc. (CLASC), filed ten disputed claim forms with the Office of Workers’ Compensation (OWC) for the underpayment of medical bills for services provided by CLASC to ten injured workers. The named defendants, all appellants, were the employers of the injured workers: Payless Shoe-source, Inc. (one worker); Gilchrist Construction Co. (one worker); and, Rapides Parish School Board (eight workers). The defendants-appellants will be collectively referred to as “the Employers.”

The disputes arose from a web of contracts with a preferred provider organization (PPO) which discounted its payments to CLASC by twenty percent (20%). This 20% reduction in medical fee reimbursement was calculated upon a fee that had already been reduced by ten percent (10%) in accordance with La.Admin.Code tit. 40, part I, § 2507 promulgated in conjunction with La.R.S. 23:1034.2 of the Louisiana Workers’ Compensation Act (LWCA or the Act). Following two hearings on the partially consolidated claims, the OWC entered judgment in favor of CLASC on each of the ten claims for underpayments ranging from approximately $137.00 to $2,200.00. The OWC also awarded CLASC $1,500.00 in attorney fees, along with a penalty of $2,000.00, on each of the ten claims. The Employers appealed the judgment.

Finding that the issues, as well as the plaintiff and the pertinent contracts, are the same in all ten cases, we have consolidated the ten appeals. For the reasons set forth below, we affirm the OWC’s awards for underpayments to CLASC. |2Finding, however, that the Employers reasonably controverted the claims by CLASC, we reverse all awards for attorney fees and penalties.

I.

ISSUES

We must decide:

(1) whether the PPO contracts are legally valid and enforceable against the established, mandatory fee rates set forth in the medical fee reimbursement schedule of the LWCA;

(2) whether the claims of CLASC for penalties and attorney fees have prescribed; and,

(3) whether the Employers in these consolidated cases reasonably controverted CLASC’s claims of underpayments, thereby rendering the OWC’s assessment of penalties and attorney fees against the Employers a reversible manifest error.

II.

FACTS AND PROCEDURAL HISTORY

In December of 1995, the business director of CLASC signed a document entitled “Affordable Health Care Concepts Participating Provider Agreement.” The document was signed by Affordable Health Care Concepts (Affordable) in February 1996 and became effective the following month. The document’s stated purpose was to create a “Preferred Provider Panel” which would “agree to comply with the reimbursement mechanisms established by AFFORDABLE.” It further stated that Affordable would “offer to certain Payors the opportunity to participate” in a PPO plan that used the services of the “Preferred Provider Panel.”

The nine-page Affordable PPO document addressed requirements that medical providers had to meet, such as cooperating with “Payors” in “expediting the |sreturn to work of Participating Patients” in workers’ compensation cases, as well as maintaining staff privileges, professional licenses, and professional liability insurance. Couched in terms relating to what the “Payor” agreed to pay, the Affordable PPO document referenced “the lesser of the Provider’s charges or the fee schedule listed in Appendix A.” Attached to the Affordable PPO Agreement is a one-page, unsigned, undated document entitled “Appendix A — First Health Outpatient Care Network Reimbursement” (First Health Appendix or Appendix A). The First Health Appendix does not contain the name of the main document or bear reference to the Affordable PPO document to which it is attached.

However, Subpart (D) of the First Health Appendix provided that reimbursement from workers’ compensation Payors would not exceed 80% of the maximum amount payable under governing state law, whether the state rules were in existence at the time of the execution of the agreement or established at a later time. Affordable changed its operating name to First Health Group Corporation (First Health) at some point in time, but apparently no efforts were made to notify CLASC of the corporate changes or to provide proper documentation in that regard.

On January 1, 2002, First Health entered into an agreement with Gallagher Bassett Services, Inc. (Gallagher). The title of that document was “Workers’ Compensation Managed Care Services Agreement” (Gallagher/First Health Agreement). It provided that First Health would perform services including clinical management, bill review, access to the First Health network, and “Front-End Processing” (electronic data capture from paper claims documents). Gallagher was identified as the “Client” in the agreement, and the entities for whom the “Client” would make managed care services available were referred to as “Sub-Clients.” The document further provided that neither First Health nor Gallagher, as “Client,” would render any medical services to the claimants and that Gallagher was responsible for |4“all decisions regarding the payment or denial of payment of medical benefits to Claimants.”

While clearly dated January 1, 2002, on the first line identifying the parties, the Gallagher/First Health Agreement was signed by Gallagher on January 12, 2005, and was signed by First Health on January 24, 2005. In addition to the internal date discrepancies in the Gallagher/First Health Agreement, vague and disparate terminology further lends to the confusion where the Affordable PPO document refers to the Employer-defendants in these cases as “Payors” while the Gallagher/First Health Agreement refers to them as “Sub-clients.”

In addition to the above-described contract between CLASC and Affordable, and the above contract between Gallagher and First Health, each of these consolidated cases contains approximately five other contracts, which are between Gallagher or First Health and the adjusting companies, or between Gallagher and the Employers. There are no contracts between CLASC and the Employers or the Employers’ insurance company. Notably, the only contract that CLASC signed is the Affordable PPO contract.

Beginning in June 2005, CLASC provided surgeries and medical procedures for ten injured employees of the three Employers in these ten consolidated cases. When CLASC received the Employers’ payments on its medical bills, the payments were reduced by the ten percent (10%) mandatory reduction of the LWCA; this 10% reduction is not an issue of dispute. The reduced payments were then reduced again by twenty percent (20%) for the PPO discounts, as reflected by Gallagher on the explanation of benefits (EOB) forms that it sent to CLASC in each |ficase. CLASC filed the ten disputed claims forms against the Employers for the 20% payment reductions on CLASC’s bills for medical services.

III.

LAW AND DISCUSSION

Validity of the PPO Discount Agreements Under the Framework of the LWCA

The Employers argue that the OWC erred in concluding that the PPO discounts are not authorized by the LWCA. We find no error in the OWC’s judgment. An examination of the underlying goals of the LWCA instructs us as to the validity of the PPO discounts.

(1) Goals of the LWCA

An early decision of the Louisiana Supreme Court described the LWCA as follows:

The act, which is social legislation, was passed for the joint benefit of labor and management in order to insure that employees who became disabled as a result of their labors in hazardous industries would have, during the period of their disability, a weekly income for the upkeep of themselves and their families .... In order that this end might be accomplished, the Legislature provided for sacrifices to be made by both the employer and the employee. The employee was required to waive the right granted him under the general law, Article 2315 of the Civil Code, in consideration of receiving a fixed percentage of his wages during the period of disability. The employer, on the other hand, was deprived of the defenses afforded to him by the general law and he was assured that, in case any of his employees were injured, they would be entitled to no more than the amount stipulated in the statute as compensation during the period of disability....

Atchison v. May, 201 La. 1003, 10 So.2d 785, 788 (La.1942).

As Atchison demonstrates, the LWCA is remedial social legislation. The Legislature’s goal was to relieve the injured employee of the burden of paying for his | fiown medical care and to replace his lost wages on a temporary or permanent basis, as needed. The purpose of the LWCA is to advance the legitimate social interest of ensuring that employees are not reduced to poverty because of an occupational or traumatic injury. By providing for complete reimbursement of medical fees, the Act intends for injured workers to receive the same high level of medical care as any other person seeking medical assistance.

Not only is the workers’ compensation statutory framework social legislation, but it is also specifically-regulated legislation. That is, it is separate and apart from tort law or personal injury law, and it occupies a specially-regulated place in Louisiana law. Consequently, those provisions dealing with workers’ compensation must be strictly followed. No deviation from the statutory text is allowed.

(2) Validity of the PPO Discount Agreement

It is with that backdrop in mind that we consider the issue of whether the PPO agreement is in violation of the LWCA and the reimbursement schedule. The Employers argue that the OWC erred in finding that the PPO agreement violates the LWCA. Specifically, they assert that though the OWC correctly held that La. R.S. 23:1033 does not prohibit contracting below the fee schedule, the OWC’s remaining decisions conflict with the plain text of the LWCA. We disagree.

The Employers’ argument fails because it attempts to view specific sections of the LWCA in a vacuum, without considering the interrelationship between the sections or the overall purpose of the Act. Considering these factors together, the PPO discounts taken by the Employers are simply not authorized under the LWCA.

Louisiana Revised Statutes 23:1203 provides that employers are liable for the payment of medical expenses. Notably, La.R.S. 23:1203(B) states:

|7The obligation of the employer to furnish such care, services, treatment, drugs, and supplies, whether in state or out of state, is limited to the reimbursement determined to be the mean of the usual and customary charges for such care, services, treatment, drugs, and supplies, as determined under the reimbursement schedule annually published pursuant to R.S. 23:1034.2 or the actual charge made for the service, whichever is less. Any out-of-state provider is also to be subject to the procedures established under the office of workers’ compensation administration utilization review rules.

Moreover, La.R.S. 23:1033 provides that: “No contract, rule, regulation or device whatsoever shall operate to relieve the employer, in whole or in part, from any liability created by this Chapter except as herein provided.” These sections, as well as the LWCA as a whole, prohibit any contracts that would operate to relieye an employer of liability created by the LWCA. In his concurring opinion to this court’s en banc opinion in Beutler England Chiropractic Clinic v. Mermentau Rice, Inc., 05-942, p. 9 (La.App. 3 Cir. 5/31/06), 931 So.2d 553, 561 (citing his dissenting opinion in Beutler England Clinic v. Mar ket Basket No. 27, 05-952 (La.App. 3 Cir. 12/30/05), 919 So.2d 816, 821), Judge Peters stated:

[T]o the extent that the PPO contract purports to further limit the employer’s liability for medical care, it runs afoul of La.R.S. 23:1033 and may not serve as a basis to reduce the amount owed to Beutler England for the treatment of [the injured employee].

This court recently revisited this issue in Agilus Health (Allison Taylor) v. Accor Lodging North America, 09-1049 (La.App. 3 Cir. 3/10/10), 32 So.3d 1120, and affirmed the trial court’s judgment that the PPO agreement between the parties violated the LWCA. Our position on the issue has not changed.

Here, the PPO contract by its very terms purports to reduce or relieve the employer’s liability for workers’ compensation medical payments from the full amount of the fee schedule to only eighty percent (80%) of the fee schedule. This ^contractual maneuver, however, flies in the face of the language and purpose of the Act.

The LWCA is highly regulated. As CLASC aptly points out, the Act regulates the amounts owed for weekly benefits, maximum and minimum compensation rates, mileage reimbursement, medical reimbursement, attorney fees, and settlements. Almost every conceivable scenario is addressed in the scheme of the LWCA. If the Legislature intended for PPO contracts to fall into the scheme of workers’ compensation, it would have addressed them in the Act. Instead, the Act specifically prohibits manipulation of its mandatory provisions. The Employers’ attempt to do so through PPO contracts, is, therefore, impermissible.

Moreover, the Employers’ actions violate the social legislative purpose of the workers’ compensation act. Not only do the PPO contracts purport to limit the employer’s liability for medical care, but they also threaten the foundation of the workers’ compensation system — namely, providing quality medical care to injured workers. When medical providers are forced to accept less reimbursement for the same quality of care they provide to paying patients, it is likely that they will be reluctant to participate in the workers’ compensation program. That reluctance will then lead to a fewer number of providers accepting workers’ compensation patients, and consequently, substandard care. We cannot allow the workers’ compensation system to be compromised in such a way.

(3) The PPO Discount Agreements and the Louisiana Reimbursement Schedule

The Employers also argue that the Fee Schedule allows for, rather than prohibits, PPO discounting. Specifically, the Employers rely on La.Admin.Code tit. 40, part I, § 4733 in support of that argument. Section 4733(A)(2)(b), however, provides that if a hospital or medical fee schedule contains “pre-negotiated rates,” the |9pre-negotiated rate must be negotiated between the provider and the carrier/self-insured employer. Here, CLASC did not negotiate any contracts with the Employers. Accordingly, the criteria of Section 4733 have not been met, and the Employers’ reliance on this Section is misplaced.

ft) Notice to CLASC

CLASC argues that even if the PPO network reduction did not violate the LWCA and the Fee Schedule, the reductions would remain non-binding and unenforceable under the express provisions of La.R.S. 40:2203.1, since the Employers gave no prior notice to CLASC as required by the statute. The OWC’s silence on the issue renders it implicitly denied.

Louisiana Revised Statutes 40:2203.1 governs PPO agreements with health care providers in Louisiana. It provides in pertinent part:

A. Except as otherwise provided in this Subsection, the requirements of this Section shall apply to all preferred provider organization agreements that are applicable to medical services rendered in this state and to group purchasers as defined in this Part. The provisions of this Section shall not apply to a group purchaser when providing health benefits through its own network or direct provider agreements or to such agreements of a group purchaser.
B. A preferred provider organization’s alternative rates of payment shall not be enforceable or binding upon any provider unless such organization is clearly identified on the benefit card issued by the group purchaser or other entity accessing a group purchaser’s contractual agreement or agreements and presented to the participating provider when medical care is provided. When more than one preferred provider organization is shown on the benefit card of a group purchaser or other entity, the applicable contractual agreement that shall be binding on a provider shall be determined as follows:
(5) When no benefit card is issued or utilized by a group purchaser or other entity, written notification shall | lftbe required of any entity accessing an existing group purchaser’s contractual agreement or agreements at least thirty days prior to accessing services through a participating provider under such agreement or agreements.

The record in these proceedings is clear that notice was not given to CLASC as required by La.R.S. 40:2203.1. Identification cards were not issued for workers’ compensation matters, nor was a written notice issued to the providers containing the PPO networks. We conclude and hold that the specific notice provisions of La. R.S. 40:2203.1 apply to workers’ compensation patients in a PPO network.

Our decision on the necessity of notice is consistent with the very recent opinion of our court in Gunderson v. F.A. Richard & Associates, Inc., 09-1498 (La.App. 3 Cir. 6/30/10), 44 So.3d 779. We agree entirely with Gunderson.

Timeliness of Claims for Penalties and Attorney Fees

The Employers contend that the claims for penalties and attorney fees have prescribed. The Employers argue that the one-year prescriptive period found in La. Civ.Code art. 3492 applies to claims for penalties and attorney fees. Specifically, they attempt to persuade this court to join our colleagues in the first and fifth circuit courts of appeal and to adopt the holding of Craig v. Bantek West, 03-2757 (La.App. 1 Cir. 9/17/04), 885 So.2d 1234, writ denied, 04-2995 (La.3/18/05), 896 So.2d 1004.

We disagree with the Employers’ position. The Employers ignore the plain text of La.R.S. 23:1201(F)(4), and they ignore the past jurisprudence of this court. Moreover, the cases upon which the Employers rely are distinguishable on their facts.

The Employers ignore the applicable statute on this issue-namely, La.R.S. 23:1201(F)(4) which states:

|nIn the event that the health care provider prevails on a claim for payment of his fee, penalties as provided in this Section and reasonable attorney fees based upon actuál hours worked may be awarded and paid directly to the health care provider. This Subsection shall not be construed to provide recovery of more than one penalty or attorney fee.

The statute, therefore, provides that the medical provider’s claims for penalties and attorney fees are separate and distinct from that of the injured employee and do not accrue until the medical provider’s underlying claim for payment is adjudicated. Because the health care provider cannot seek an award of statutory penalties and attorney fees from a defendant employer/insurer until the health care provider prevails on his claim for payment of his fee, that cause of action had not yet accrued at the time of trial.

The Employers urge us to adopt Craig and its progeny, which support the position that a one-year prescriptive period governs the cause of action for penalties and attorney fees. Craig and its progeny are distinguishable, however, because they do not address statutory penalties and attorney fees owed to a health care 'provider under La.R.S. 23:1204(F)(4), but rather address benefits owed to claimants.

Not only do the Employers ignore the plain text of the statute at issue, but they also ignore this court’s prior rulings on this issue. Specifically, in Rave v. Wampold Cos., 06-978, p. 12 (La.App. 3 Cir. 12/6/06), 944 So.2d 847, 855, we stated, “It is clear from a reading of the jurisprudence that when claims for penalties and attorney fees accompany the claim for benefits, if the underlying claims have not prescribed, neither have the claims for attorney fees and penalties.”

Here, the claims for underpayment or late payment and legal interest filed by CLASC have not yet prescribed. Thus, the underlying claims for attorney fees and penalties have not yet prescribed.

| ^Reasonable Controversion of Claims of Underpayments

Pursuant to La.R.S. 23:1201(F)(4), the OWC awarded $2,000.00 in penalties and $1,500.00 in attorney fees in each of the ten consolidated cases for the Employer’s underpayment of CLASC’s medical bills for the services it provided to each injured worker. The workers’ compensation judge stated that the single violation leading to the $2,000.00 penalty in each case was the employer’s “error of thinking” that it could rely upon a PPO contract. The determination by the OWC that an employer or insurer should be cast with penalties and attorney fees is a question of fact subject to the manifest error or clearly wrong standard of review. Authement v. Shappert Eng’g, 02-1631 (La.2/25/03), 840 So.2d 1181.

The Employers argue that penalties and attorney fees should not have been assessed against them because they reasonably controverted the claims of CLASC for underpayments due to the existence of valid PPO contracts setting forth the rates for the payments actually submitted. Louisiana Revised Statutes 23:1201(F)(2) provides that penalties and attorney fees “shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer had no control.”

The Louisiana Supreme Court in Authement articulated the reasoning behind the imposition of penalties and fees as follows:

As stated in Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41, 46, awards of penalties and attorney fees in workers’ compensation cases are essentially penal in nature. The purpose of imposition of penalties and attorney fees is to discourage indifference and undesirable conduct by employers and insurers. The crucial inquiry in determining whether to impose penalties and attorney fees on an employer is whether the employer had an articulable and objective reason to deny benefits at the time it took action. Id.

Authement, 840 So.2d at 1188.

1 ^While we find that the PPO contracts in these cases did not have legal effect for the rate reductions applied, we find that the Employers did have “articulable and objective” reasons to reduce the payments to CLASC at the time that the Employers took that action. As previously indicated, attached to the Affordable PPO Agreement in the record is an unsigned, undated “Appendix A” bearing the name of First Health.

The First Health Appendix discusses reimbursement formulas containing multipliers, conversion factors, medical procedure codes, pricing methodologies, existing guidelines, and it shows various group payments, fee schedules, and specific medical service pricing for named procedures. Then, under section (D)(1), the First Health Appendix provides that reimbursement from workers’ compensation payors shall not exceed eighty percent (80%) of the maximum amount payable under the state’s regulating rules, which ostensibly refers to the LWCA. The First Health Appendix further provides that the reimbursement rate shall apply whether the state rules are in existence at the time of the execution of the agreement or established at a later time.

In case 10-99 of these consolidated cases (OWC 08-02851), CLASC provided medical services to a Rapides employee, Forrest Robinson, on May 18, 2007. CLASC billed charges of $1,198.00. The Third Party Administrator, Gallagher Bassett, generated a payment and an EOB. The EOB showed the total charges of $1,198.00, then subtracted $119.80 (10%), described as a “Bill Review Deduction.” More specifically, however, this initial 10% reduction of the payment to CLASC is the mandatory reduction pursuant to La.Admin.Code tit. 40, part I, § 2507, which governs the rate for outpatient care and which is promulgated in accordance with the LWCA at La.R.S. 23:1034.2. The CLASC bill for services was thus reduced to $1,078.20 per the LWCA. The Gallagher EOB then showed an |Madditional reduction for a “PPO Discount” of $215.64, which equates to a 20% discount off of the $1,078.20, resulting in a “Recommended Allowance” of $862.56 (or 80% of $1,078.20). The amount then submitted by Rapides to CLASC as payment for its medical services to Forrest Robinson was $862.56.

Accordingly, the $215.64 underpayment claimed by CLASC in that case was the amount calculated by Gallagher using the method set forth under section (D)(1) of the First Health Appendix, which was attached to the Affordable PPO contract between CLASC and Affordable. Likewise, this calculation was used in the other nine payments in these ten consolidated cases, all containing the Affordable PPO contract and the First Health Appendix described above.

Therefore, while we have found that this web of PPO agreements is not valid under the LWCA and cannot usurp the rates and fee schedules established by the LWCA, specifically La.R.S. 23:1203 and 23:1034.2, the contracts form a reasonable basis for controverting the claims of CLASC regarding underpayments. See Henderson v. Pavy, 96-90 (La.App. 3 Cir. 5/15/96), 688 So.2d 1048 (an employer’s failure to pay the amount remaining on the doctor’s medical bill for a workers’ compensation claimant did not warrant an assessment of penalties and attorney fees where there was a dispute regarding a lower estimate); see Baca v. Natchitoches Parish Hosp., 06-1132 (La.App. 3 Cir. 2/7/07), 948 So.2d 1205 (after quoting the language regarding an employer’s articulable and objective reason to deny payment, no penalties and attorney fees were assessed where the employer had sufficient grounds to dispute the claim).

In the ten consolidated eases, while we find that the Employers underpaid CLASC due to their reliance upon the PPO contracts, we find that the OWC manifestly erred in imposing penalties and attorney fees against the Employers, and we reverse.

JifilV.

CONCLUSION

Based upon the foregoing, all of the OWC awards for underpayments to CLASC, beginning as low as $137.00 in one of the ten consolidated cases and reaching as high as $2,200.00 in one case, are affirmed. With regard to the $2,000.00 penalty and the $1,500.00 attorney fee in each of the ten cases, we reverse. The existence of the PPO contracts, though the contracts are invalid, provided an articula-ble basis for the Employers to pay the additionally discounted amounts, at the time the Employers took action, thus controverting the claims of CLASC. Costs of this appeal are assessed to the Employers.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

GREMILLION, J., concurs and assigns written reasons.

GREMILLION, Judge,

Concurring.

| ¶While I agree with the majority’s result, I disagree with the majority’s reasoning. The majority invalidates the PPO agreement on the basis that La.R.S. 28:1083 prohibits the contractual limitation of an employer’s liability under the Workers’ Compensation Act. The PPO agreement in no way limits the employer’s liability; rather, such contracts reflect the sound policy underlying La.R.S. 23:1034.2(E), which provides, “Nothing in this Section shall prevent a health care provider from charging a fee for such care, services, treatment, drugs, or supplies that is less than the reimbursement established by the reimbursement schedule.” When a provider and an employer or workers’ compensation insurer enter into a PPO contract, they are agreeing that the provider will only charge a certain amount for specific care, services, and treatment procedures. The fact that they might charge a patient who is not a member of the PPO a greater amount than an employee member does hot render the PPO agreement invalid under the Workers’ Compensation Act, nor does it render the employee’s care substandard.

The majority also concludes that the PPO agreement runs afoul of the social contract implicit in the Workers’ Compensation Act: the employee is guaranteed payment of his medical expenses and indemnity in exchange for recovery of a lesser | ¡.amount. It states (emphasis added):

Not only do the PPO contracts purport to limit the employer’s liability for medical care, but they also threaten the foundation of the workers’ compensation system — namely, providing quality medical care to injured workers. When medical care providers are forced to accept less reimbursement for the same quality care they provide to paying patients, it is likely that they will be reluctant to participate in the workers’ compensation program. That reluctance will then lead to a fewer numbers of providers accepting workers’ compensation patients, and consequently, substandard care.

This conclusion ignores the basic PPO structure. The PPO agreement is just that — an agreement. No provider is forced to accept anything. They can choose to not participate in the PPO. This reasoning also ignores the fundamental purpose underlying the reimbursement schedule: to cap the amount providers can charge employees for work-related injury expenses.

The manner in which billing is performed by the health care providers should not determine the validity of a PPO agreement. I am mindful of this court’s decision in Agilus Health v. Accor Lodging N.A., 09-1049 (La.App. 3 Cir. 3/10/10), 32 So.3d 1120, unit granted, 10-800 (La.6/18/10), 38 So.3d 312, in which a PPO agreement was invalidated on the ground that it violated La.R.S. 23:1203(B). As the majority stated, “[The defendants], however, ignore the fact that this provision [La. R.S. 23:1034.2] does not allow the employer to pay less than the scheduled amount if the provider charges that amount or more.” Id., at 1121. What constitutes the amount the provider charges is, in my mind, the critical issue.

For instance, would the misplacement of a decimal point by the provider’s billing clerk change the amount actually charged from $100.00 to $1,000.00? Under the Agi-lus Health case, if the PPO paid the $100.00 it and the provider had agreed to, it is conceivable the provider would be subject not only to paying the difference between the agreed-to and the scheduled amounts, but also to a $2,000.00 penalty and | ¡¡attorney fees.

Statutes governing the same subject are to be read in pari materia. La.Civ.Code art. 13. Further, the standard rules of statutory construction provide that (1) one presumes that every provision of law was intended to serve a purpose; (2) one does not presume that the lawmaker intended for any part of a law to be meaningless; (3) one presumes the lawmaker to have enacted the law with full knowledge of all other laws pertaining to the same subject matter; (4) the duty of the courts is to interpret a provision of law which harmonizes and reconciles it with other provisions pertaining to the same subject matter; and (5) of two or more possible interpretations of a law, “that which affords a reasonable and practical effect to the entire act is preferred to one that renders part of the act nugatory.” Ransome v. Ransome, 01-2361, 8 (La.App. 1 Cir. 6/21/02), 822 So.2d 746, 754. In the present matter, as in Agilus Health, the literal application of La.R.S. 23:1203, without reference to La. R.S. 23:1034.2, renders section 1034.2(E) superfluous.

The PPO agreement does not, in my opinion, violate the Workers’ Compensation Act. I fully agree with Judge Amy’s dissent in the Agilus Health case. The PPO agreement was precisely the sort of vehicle envisioned when Section 1034.2(E) was enacted.

Rather, I agree with the majority in ruling that the PPO failed to comply with the notice requirements of La.R.S. 40:2203.1. The majority has aptly characterized the relationship between the parties hereto as “a web of contracts.” The plaintiff may be even more felicitous in describing a “convoluted series of at least four contracts.” In addition, CLASC had no other notice that it was to provide services under a PPO agreement at any other time until Gallagher Bassett notified it of such at the time of payment. Surely, leaving the provider so completely uninformed was exactly what 14the legislature sought to avoid when it enacted La.R.S. 40:2203.1.

I note, as did the majority, that this was the basis for this court’s decision in the very recent case of Gunderson v. F.A. Richard & Assoc., Inc., 09-1498 (La.App. 3 Cir. 6/30/10), 44 So.3d 779. Also, our colleagues on the fourth circuit have found that no party has the right to enforce the PPO agreement against a health care provider when the notice requirements of Section 2203.1 are not followed. Touro Infirmary v. American Maritime Officer, 09-697 (La.App. 4 Cir. 11/9/09), 24 So.3d 948.

I agree with the majority on the issue of the awards of penalties and attorney fees. I concur with the result, given that the PPO failed to comply with the dictates contained in La.R.S. 40:2203.1.

JjON REHEARING

ULYSSES GENE THIBODEAUX, Chief Judge.

Defendants in these consolidated cases applied for rehearing on the issue of notice. We deny these applications. Plaintiffs have filed applications for rehearing on the issues of attorney fees and penalties. They have requested rehearing en banc. We deny the request for en banc consideration but grant Plaintiffs’ rehearing applications.

We reverse our original decision to deny penalties and attorney fees and now affirm the awards of $1,500.00 in attorney fees and $2,000.00 in penalties in each of the consolidated cases. We additionally award $1,500.00 for work done on appeal to the prevailing Plaintiffs.

Louisiana Revised Statutes 23:1201(F)(4) states:

In the event that the health care provider prevails on a claim for payment of his fee, penalties as provided in this Section and reasonable attorney fees based upon actual hours worked may be awarded and paid directly to the health care provider. This Subsection shall not be construed to provide recovery of more than one penalty or attorney fee.

La.R.S. 23:1201(F)(2) states that “[t]his Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.” The phrase “as provided in this Section” of La.R.S. 23:1201(F)(4) encompasses the “reasonably controverted” standard of La. R.S. 23:1201(F)(2) as it applies to an award of penalties. The award of reasonable attorney fees has no such restriction. That is, once a health care provider prevails on an underpayment claim, the award of attorney fees is discretionary and is not subject to the “reasonably controverted” limitation.

The determination by the Office of Workers’ Compensation that an employer or insurer should be cast -with penalties and attorney fees is a question of |afact subject to the manifest error or clearly wrong standard of review. Authement v. Shappert Eng’g, 02-1631 (La.2/25/03), 840 So.2d 1181. The workers’ compensation judge appropriately exercised his discretion and was not clearly wrong in awarding attorney fees pursuant to La.R.S. 23:1201(F)(4).

While Defendants may have a plausible argument on the impropriety of awarding penalties under La.R.S. 23:1201(F)(4) based on the validity of the PPO discount agreement, the argument is untenable with regard to the notice provisions of La.R.S. 40:2203.1. Gunderson v. F.A. Richard & Associates, Inc., 09-1498 (La.App. 3 Cir. 6/30/10), 44 So.3d 779, explained that La.R.S. 40:2203.1 was clear and unambiguous. When a statute refers to “all preferred provider organization agreements,” it means just that. Defendants in these consolidated cases were aware of these clear provisions and cannot escape their applicability with protestations of ambiguity.

For the foregoing reasons, we vacate our original opinion on the denial of penalties and attorney fees and reinstate the judgments of the Office of Workers’ Compensation. Additionally, we award attorney fees of $1,500.00 for work done on appeal in each of the consolidated cases.

AFFIRMED.

GREMILLION, J., concurs in part and dissents in part and assigns written reasons.

GREMILLION, Judge,

concurs in part and dissents in part.

Iil agree with the majority on the issue of the awards of penalties, given that the defendants failed to comply with the dictates of La.R.S. 40:2208.1.

I dissent on the issue of attorney fees. Louisiana Revised Statute 23:1201(F)(4) provides that “[i]n the event that the health care provider prevails on a claim for payment of his fee, penalties as provided in the Section and reasonable attorney fees based wpon actual hours worked may be awarded.... ” [Emphasis added]. In the present matters, counsel for the provider submitted affidavits attesting to the actual hours worked as of the date of trial on each, which are summarized below.

Docket Actual hours worked
10-86_2A_
10-91_3/7_
10-92_3j>_
10-96_2A_
10-97_22_
10-99_22_
10-100_2A_
10-115_22_
10-117_21_
ldO-118_22

Thus, counsel worked a total of 26.6 hours, for which the WCJ and this court have determined the health care provider is entitled to receive attorney fees awards totaling $30,000. An hourly rate of $1,127.82 is unreasonable and unwarranted. I would reduce the attorney fee awards to reflect an hourly rate of $175.00 per hour.

      . CLASC answered the appeal in each case, in addition to filing its opposition. We note, however, that CLASC’s two-page answer does not contain any assignments of error. Accordingly, we will not address the errors assigned by CLASC in its opposition brief in appeal number 10-86 (OWC 08-02882).

      . Neither the injuries nor the medical procedures are at issue in these cases.


author: THIBODEAUX, Chief Judge.

text:
    CENTRAL LOUISIANA AMBULATORY SURGICAL CENTER, INC. (Travis Villemarette) v. GILCHRIST CONSTRUCTION CO.
    No. 10-91.
    Court of Appeal of Louisiana, Third Circuit.
    July 28, 2010.
    Rehearing Granted in Part, Denied in Part Oct. 20, 2010.
    Roger Anthony Javier, The Javier Law Firm, New Orleans, LA, for Defendant/Appellant, Gilchrist Construction Co.
    Richard Bray Williams, Williams Family Law Firm, LLC, Natchitoches, LA, for Plaintiff/Appellee, Central Louisiana Ambulatory Surgical Center, Inc. (Travis Vil-lemarette).
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SHANNON J. GREMILLION, and DAVID E. CHATELAIN, Judges.

      Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   THIBODEAUX, Chief Judge.

For the reasons discussed in the consolidated case of Central Louisiana Ambulatory Surgical Center, Inc. v. Payless Shoesource, Inc., 10-86 (La.App. 3 Cir. July 28, 2010) 2010 WL 3026527, 46 So.Sd 689, the judgment of the OWC is affirmed in part and reversed in part. Costs of this appeal are assessed to the appellant, Gilchrist Construction Co.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

GREMILLION, J., concurs and assigns written reasons.


text:
    CENTRAL LOUISIANA AMBULATORY SURGICAL CENTER, INC. (David Nardini) v. RAPIDES PARISH SCHOOL BOARD.
    No. 10-92.
    Court of Appeal of Louisiana, Third Circuit.
    July 28, 2010.
    Rehearing Granted in Part, Denied in Part Oct. 20, 2010.
    Roger Anthony Javier, The Javier Law Firm, New Orleans, LA, for Defendant/Appellant-Rapides Parish School Board.
    Richard Bray Williams, Williams Family Law Firm, LLC, Natchitoches, LA, for Plaintiff/Appellee-Central Louisiana Ambulatory Surgical Center, Inc. (David Nar-dini).
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SHANNON J. GREMILLION, and DAVID E. CHATELAIN, Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   THIBODEAUX, Chief Judge.

For the reasons discussed in the consolidated case of Central Louisiana Ambulatory Surgical Center, Inc. v. Payless Shoesource, Inc., 10-86 (La.App. 3 Cir. July 28, 2010) 2010 WL 3026527, 46 So.3d 689, the judgment of the OWC is affirmed in part and reversed in part. Costs of this appeal are assessed to the appellant, Rapides Parish School Board.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

GREMILLION, J., concurs and assigns written reasons.


text:
    CENTRAL LOUISIANA AMBULATORY SURGICAL CENTER, INC. (Vicky LaCour) v. RAPIDES PARISH SCHOOL BOARD.
    No. 10-96.
    Court of Appeal of Louisiana, Third Circuit.
    July 28, 2010.
    Rehearing Granted in Part, Denied in Part Oct. 20, 2010.

      Roger Anthony Javier, The Javier Law Firm, New Orleans, LA, for Defendant/Appellant, Rapides Parish School Board.
    Richard Bray Williams, Williams Family Law Firm, LLC, Natchitoches, LA, for Plaintiff/Appellee, Central Louisiana Ambulatory Surgical Center, Inc. (Vicky LaC-our).
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SHANNON J. GREMILLION, and DAVID E. CHATELAIN, Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   THIBODEAUX, Chief Judge.

For the reasons discussed in the consolidated case of Central Louisiana Ambulatory Surgical Center, Inc. v. Payless Shoesource, Inc., 10-86 (La.App. 3 Cir. July 28, 2010) 2010 WL 3026527, 46 So.3d 689, the judgment of the OWC is affirmed in part and reversed in part. Costs of this appeal are assessed to the appellant, Rapides Parish School Board.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

GREMILLION, J., concurs and assigns written reasons.


text:
    CENTRAL LOUISIANA AMBULATORY SURGICAL CENTER, INC. (Edith Hilborn) v. RAPIDES PARISH SCHOOL BOARD.
    No. 10-97.
    Court of Appeal of Louisiana, Third Circuit.
    July 28, 2010.
    Rehearing Granted in Part, Denied in Part Oct. 20, 2010.
    Roger Anthony Javier, The Javier Law Firm, New Orleans, LA, for Defendant/Appellant-Rapides Parish School Board.
    Richard Bray Williams, Williams Family Law Firm, LLC, Natchitoches, LA, for Plaintiff/Appellee-Central Louisiana Ambulatory Surgical Center, Inc. (Edith Hil-born).
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SHANNON J. GREMILLION, and DAVID E. CHATELAIN, Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   THIBODEAUX, Chief Judge.

For the reasons discussed in the consolidated case of Central Louisiana Ambulatory Surgical Center, Inc. v. Payless Shoesource, Inc., 10-86 (La.App. 3 Cir. July 28, 2010) 2010 WL 3026527, 46 So.3d 689, the judgment of the OWC is affirmed in part and reversed in part. Costs of this appeal are assessed to the appellant, Rapides Parish School Board.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

GREMILLION, J., concurs and assigns written reasons.


text:
    CENTRAL LOUISIANA AMBULATORY SURGICAL CENTER, INC. (Forrest Robinson) v. RAPIDES PARISH SCHOOL BOARD.
    No. 10-99.
    Court of Appeal of Louisiana, Third Circuit.
    July 28, 2010.
    Rehearing Granted in Part, Denied in Part Oct. 20, 2010.
    Roger Anthony Javier, The Javier Law Firm, New Orleans, LA, for Defendant/Appellant, Rapides Parish School Board.
    Richard Bray Williams, Williams Family Law Firm, LLC, Natchitoches, LA, for Plaintiff/Appellee, Central Louisiana Ambulatory Surgical Center, Inc. (Forrest Robinson).
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SHANNON J. GREMILLION, and DAVID E. CHATELAIN, Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   THIBODEAUX, Chief Judge.

For the reasons discussed in the consolidated case of Central Louisiana Ambulatory Surgical Center, Inc. v. Payless Shoesource, Inc., 10-86 (La.App. 3 Cir. July 28, 2010) 2010 WL 3026527, 46 So.3d 689, the judgment of the OWC is affirmed in part and reversed in part. Costs of this appeal are assessed to the appellant, Rapides Parish School Board.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

GREMILLION, J., concurs and assigns written reasons.


text:
    CENTRAL LOUISIANA AMBULATORY SURGICAL CENTER, INC. (Carmen Lacour) v. RAPIDES PARISH SCHOOL BOARD.
    No. 10-100.
    Court of Appeal of Louisiana, Third Circuit.
    July 28, 2010.
    Rehearing Granted in Part, Denied in Part Oct. 20, 2010.

      Roger Anthony Javier, The Javier Law Firm, New Orleans, LA, for Defendant/Appellant, Rapides Parish School Board.
    Richard Bray Williams, Williams Family Law Firm, LLC, Natchitoches, LA, for Plaintiff/Appellee, Central Louisiana Ambulatory Surgical Center, Inc. (Carmen LaCour).
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SHANNON J. GREMILLION, and DAVID E. CHATELAIN, Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   THIBODEAUX, Chief Judge.

For the reasons discussed in the consolidated case of Central Louisiana Ambulatory Surgical Center, Inc. v. Payless Shoesource, Inc., 10-86 (La.App. 3 Cir. July 28, 2010) 2010 WL 3026527, 46 So.3d 689, the judgment of the OWC is affirmed in part and reversed in part. Costs of this appeal are assessed to the appellant, Rapides Parish School Board.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

GREMILLION, J., concurs and assigns written reasons.


text:
    CENTRAL LOUISIANA AMBULATORY SURGICAL CENTER, INC. (Patricia Harmson) v. RAPIDES PARISH SCHOOL BOARD.
    No. 10-115.
    Court of Appeal of Louisiana, Third Circuit.
    July 28, 2010.
    Rehearing Granted in Part, Denied in Part Oct. 20, 2010.
    Roger Anthony Javier, The Javier Law Firm, New Orleans, LA, for Defendant/Appellant-Rapides Parish School Board.
    Richard Bray Williams, Williams Family Law Firm, LLC, Natchitoches, LA, for Plaintiff/Appellee-Central Louisiana Ambulatory Surgical Center, Inc. (Patricia Harmson).
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SHANNON J. GREMILLION, and DAVID E. CHATELAIN, Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   THIBODEAUX, Chief Judge.

For the reasons discussed in the consolidated case of Central Louisiana Ambulatory Surgical Center, Inc. v. Payless Shoesource, Inc., 10-86 (La.App. 3 Cir. July 28, 2010) 2010 WL 3026527, 46 So.3d 689, the judgment of the OWC is affirmed in part and reversed in part. Costs of this appeal are assessed to the appellant, Rapides Parish School Board.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

GREMILLION, J., concurs and assigns written reasons.


text:
    CENTRAL LOUISIANA AMBULATORY SURGICAL CENTER, INC. (Dwight Tennie) v. RAPIDES PARISH SCHOOL BOARD.
    No. 10-117.
    Court of Appeal of Louisiana, Third Circuit.
    July 28, 2010.
    Rehearing Granted in Part, Denied in Part Oct. 20, 2010.
    Roger Anthony Javier, The Javier Law Firm, New Orleans, LA, for Defendant/Appellant-Rapides Parish School Board.
    Richard Bray Williams, Williams Family Law Firm, LLC, Natchitoches, LA, for Plaintiff/Appellee-Central Louisiana Ambulatory Surgical Center, Inc. (Dwight Tennie).
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SHANNON J. GREMILLION, and DAVID E. CHATELAIN, Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   THIBODEAUX, Chief Judge.

For the reasons discussed in the consolidated case of Central Louisiana Ambulatory Surgical Center, Inc. v. Payless Shoesource, Inc., 10-86 (La.App. 3 Cir. July 28, 2010) 2010 WL 3026527, 46 So.3d 689, the judgment of the OWC is affirmed in part and reversed in part. Costs of this appeal are assessed to the appellant, Rapides Parish School Board.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

GREMILLION, J., concurs and assigns written reasons.


text:
    CENTRAL LOUISIANA AMBULATORY SURGICAL CENTER, INC. (Tammy Tyler) v. RAPIDES PARISH SCHOOL BOARD.
    No. 10-118.
    Court of Appeal of Louisiana, Third Circuit.
    July 28, 2010.
    Rehearing Granted in Part, Denied in Part Oct. 20, 2010.

      Roger Anthony Javier, The Javier Law Firm, New Orleans, LA, for Defendant/Appellant, Rapides Parish School Board.
    Richard Bray Williams, Williams Family Law Firm, LLC, Natchitoches, LA, for Plaintiff/Appellee, Central Louisiana Ambulatory Surgical Center, Inc. (Tammy Tyler).
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SHANNON J. GREMILLION, and DAVID E. C HATE LAIN, Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   THIBODEAUX, Chief Judge.

For the reasons discussed in the consolidated case óf Central Louisiana Ambulatory Surgical Center, Inc. v. Payless Shoesource, Inc., 10-86 (La.App. 3 Cir. July 28, 2010), 2010 WL 3026527, 46 So.3d 689, the judgment of the OWC is affirmed in part and reversed in part. Costs of this appeal are assessed to the appellant, Rapides Parish School Board.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

GREMILLION, J., concurs and assigns written reasons.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Kevin Dewayne HALTOM, Appellant.
    No. 45,460-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 11, 2010.

      Peggy J. Sullivan, Monroe, LA, for Appellant.
    J. Schuyler Marvin, District Attorney, Edward C. Jacobs, John M. Lawrence, Charles A. Smith, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, DREW and LOLLEY, JJ.
   WILLIAMS, J.

h The defendant, Kevin Haltom, was charged by separate bills of information with one count of indecent behavior with a juvenile (LSA-R.S. 14:81), one count of computer-aided solicitation of a minor (LSA-R.S. 14:81.3), one count of attempted carnal knowledge of a juvenile (LSA-R.S. 14:27 and 14:80), and seven counts of pornography involving juveniles (LSA-R.S. 14:81.1). Pursuant to a plea agreement, the defendant pled guilty to indecent behavior with a juvenile and the state agreed to not pros the nine remaining charges pending against the defendant. The trial court imposed a sentence of 7 years at hard labor with all but 5-1/2 years suspended, 5 years of active supervised probation and a fíne of $5,000. Defendant appeals his sentence as excessive. For the following reasons, we affirm.

DISCUSSION

The record shows that between March 19, 2007 and May 8, 2007, the defendant visited an internet “chat room” and contacted a deputy sheriff, who was posing as a 14-year-old girl as part of an undercover investigation. In the course of these communications, defendant arranged to meet the person he believed to be an underage girl at a mall in Bossier City and take her to a hotel to have sex. The defendant was arrested at the mall on May 8, 2007. A subsequent analysis of the defendant’s computer hard drive allegedly revealed 14 images and 11 videos of child pornography. The defendant was charged with one count of indecent behavior with a juvenile, one count of computer-aided solicitation of a minor, one count of attempted carnal knowledge of a juvenile, and seven counts of pornography involving juveniles. As a result of a plea bargain, defendant pled guilty to indecent | ¡¡behavior with a juvenile and the other pending charges were dismissed. The district court sentenced defendant to serve 7 years at hard labor with all but 5-1/2 years suspended, along with a fíne of $5,000 and 5 years of active supervised probation with special conditions, including compliance with a safety plan recommended by a psychologist, counseling during incarceration and probation, no access to a computer and no drug or alcohol use. The defendant’s motion to reconsider sentence was denied. This appeal followed.

The defendant contends the district court erred in imposing an excessive sentence. Defendant argues that the maximum sentence of imprisonment is not appropriate in this case, based on his lack of criminal history and his efforts at rehabilitation.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267. The important elements which should be considered are the 1 ^defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 2008-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La. App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.

Second, a sentence violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166.

Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Germany, 43,-239 (La.App.2d Cir.4/30/08), 981 So.2d 792. A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion we will not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.5/12/04), 873 So.2d 939. The penalty for indecent behavior with a juvenile is imprisonment with or without hard labor for not more than seven years, or a fine of not more than $5,000, or both, provided the defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with the provisions of Code of Criminal Procedure Article 893. LSA-R.S. 14:81(H)(1).

Prior to imposing sentence, the district court reviewed a presentence investigation report, which included the facts of the case and defendant’s social history. The court was aware of defendant’s educational and employment background. The court noted that defendant was a 32-year-old first felony offender, that he had expressed remorse and that he had received counseling from Dr. Mark Vigen and a minister. However, the court pointed out that defendant made preparations to meet with a 14-year-old girl to have sex and that child pornography was found on his computer.

In addition, the court stated that it had considered the report of Dr. Mark Vigen, a psychologist, who performed a psychological evaluation of the defendant. In the report, Dr. Vigen stated that he did not view the defendant as “a high risk for sexually acting out in inappropriate ways with underage females.” Thus, Dr. Vi-gen’s opinion suggests that the defendant continued to present some risk of such behavior. Based upon the considerations referenced above, the court found that any lesser sentence would deprecate the seriousness of the offense committed. The court also noted that the defendant bene-fitted from a reduction in potential exposure to | .^confinement through the plea bargain, which resulted in the dismissal of the additional charges pending against him.

The record demonstrates that the district court was cognizant of the appropriate factors in determining the defendant’s sentence. The court adequately articulated the factual basis for the imposition of this sentence, which is neither grossly disproportionate to the severity of the offense committed nor an abuse of the court’s discretion. Thus, we cannot say the sentence is constitutionally excessive. The assignment of error lacks merit.

We have examined the record for error patent and found none.

CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Robert Gordon JONES, Appellant.
    No. 45,450-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 11, 2010.
    Robert Gordon Jones, Pro Se.
    James Edward Beal, Louisiana Appellate Project, Jonesboro, LA, for Appellant.
    Jerry L. Jones, District Attorney, Geary S. Aycock, Ellen R. Eade, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS, and PEATROSS, JJ.
   BROWN, Chief Judge.

|!Indicted for simple rape, La. R.S. 14:43, a jury convicted defendant, Robert Gordon Jones, of sexual battery, La. R.S. 14:43.1. He was sentenced to eight years at hard labor without benefit of probation, parole, or suspension of sentence. He appealed. We affirm.

Facts

On September 6, 2008, defendant arranged to meet up with the victim and her group of friends after hours at his parents’ bar, Delta Rhythms. When defendant arrived at Delta Rhythms the victim and her girlfriends were there with three guys whom they had met a few hours prior. Defendant unlocked the bar and let everyone enter.

Once inside, defendant began pouring drinks for everyone. In particular, defendant kept plying the victim with shots, even though she was underage and already intoxicated. At some point in the night the victim passed out. When the group decided to leave the bar the victim was still unconscious, so Corey Persons, one of the guys the victim met that night, carried her to her friend Laura’s car. The entire group then went to Laura’s apartment. The victim was still unconscious so Corey carried her to Laura’s bedroom and placed her in bed. At no time did the victim regain consciousness.

A couple of hours later Corey walked into Laura’s bedroom to retrieve something. Upon entering the room he observed defendant having sex with the victim while she was unconscious. Assuming that the victim and defendant were boyfriend and girlfriend, Corey left without saying anything. That night Corey called Laura and asked her about the ^relationship between the victim and defendant. When she told him that they were only friends, he informed her about what he had witnessed.

Laura drove the victim to St. Francis Hospital in Monroe to be checked out by a Sexual Assault Nurse Examiner. The nurse examined the victim and found an abrasion on her posterior fourchette and DNA from defendant’s sperm inside and outside of her vagina.

On December 18, 2008, defendant was charged by bill of indictment with simple rape. Trial by jury was held on July 8 and 9, 2009; afterward, defendant was found guilty of the lesser charge sexual battery. On November 16, 2009, the trial court sentenced defendant to eight years’ imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

Defendant now appeals his conviction and sentence.

DISCUSSION

Defendant’s appellate counsel claims that the sentence imposed is excessive and violates Article 1 § 20 of the Louisiana Constitution. In his pro se brief, defendant claims that the evidence was not sufficient to convict. Because sufficiency of the evidence is a threshold issue, and reversal on this issue could result in a dismissal of the case, it will be discussed first.

Sufficiency of the Evidence

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential | .¡elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 448 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Wilson, 45,060 (La.App.2d Cir.03/10/10), 32 So.3d 1152. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. Great deference is given to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.02/25/09), 3 So.3d 685; State v. Hill, 42,025 (La.App.2d Cir.05/09/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529.

Defendant was indicted for simple rape, which carries a possible sentence of 25 years. During his jury trial, he did not testify or offer any other evidence than that presented by the' state. Defendant was convicted of the lesser and responsive charge of sexual battery, which is a violation of La. R.S. 14:43.1 and carries a possible sentence of 10 years.

La. R.S. 14:48 defines simple rape, in part, as follows:

A. Simple rape is a rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of a victim because it is committed under any one or more of the following circumstances:
(1) When the victim is incapable of resisting or of understanding the nature of the act by reason of a stupor or abnormal condition of mind produced by an intoxicating agent or any cause and the offender knew or should have known of the victim’s incapacity.

La. R.S. 14:43.1 defines sexual battery and states, in pertinent part:

A. Sexual battery is the intentional engaging in any of the following acts with another person where the offender acts without the consent of the victim, or where the act is consensual but the other person, who is not the spouse of the | offender, has not yet attained fifteen years of age and is at least three years younger than the offender:
(1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender.

In State ex rel. Elaire v. Blackburn, 424 So.2d 246, 251 (La.1982), the supreme court stated:

... if the defendant does not enter an objection (at a time when the trial judge can correct the error), then the reviewing court may affirm the conviction if the evidence would have supported a conviction of the greater offense, whether or not the evidence supports the conviction of the legislatively responsive offense returned by the jury.

Our review of the record finds that there was sufficient evidence for the trier of fact to determine that defendant had sex with an unconscious victim. Corey Persons testified that he observed defendant having sex with the victim while she was unconscious, and the sperm found inside and outside her vagina by the sexual assault nurse examiner was a DNA match to defendant. These facts established direct evidence sufficient for a rational juror to conclude beyond a reasonable doubt that defendant was guilty of every essential element of either the crime charged or the responsive verdict.

Excessive Sentence

Defendant argues that an eight-year sentence is excessive for a first time offender with health problems.

A trial court has broad discretion to sentence within the statutory limits. State v. Shirley, 41,608 (La.App.2d Cir.12/13/06), 945 So.2d 267, writ denied, 07-1394 (La.04/04/08), 978 So.2d 321; State v. Black, 28,100 [s(La.App.2d Cir.02/28/96), 669 So.2d 667, writ denied, 96-0836 (La.09/20/96), 679 So.2d 430. Absent a showing of manifest abuse of that discretion we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.05/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.05/12/04), 873 So.2d 939; State v. Lingefelt, 38,038 (La.App.2d Cir.01/28/04), 865 So.2d 280, writ denied, 04-0597 (La.09/24/04), 882 So.2d 1165.

The record reflects that prior to imposing sentence the trial court considered the sentencing factors set forth in La. C. Cr. P. Art. 894.1. In particular, the trial court noted the multitude of mitigating factors, such as defendant’s health problems, employment, lack of a criminal history, and its belief that he was unlikely to commit such an act again. The trial court also noted, however, that defendant acted without provocation, caused severe emotional and actual harm to the victim, and that in its view his actions amounted to the higher charge of simple rape. Thus, the trial court reasoned, the jury showed defendant great leniency by finding him guilty of the lesser charge, as simple rape carries a term up to 25 years.

Considering the nature of defendant’s actions, and the lifelong impact that those actions are going to have on the victim, we do not find that the sentence imposed by the trial court is so grossly disproportionate to the severity of the offense so as to shock the sense of justice. State v. Weaver, 01-0467 (La.01/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992).

| Conclusion

For the foregoing reasons, the conviction and sentence of defendant, Robert Gordon Jones, are affirmed.

AFFIRMED.