author: SAUNDERS, Judge. GREMILLION, Judge,

text:
    THOMAS MEDICAL GROUP, APMC (Derek McDavid) v. STINE, LLC, et al.
    No. 10-577.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.

      Roger Anthony Javier, The Javier Law Firm, New Orleans, LA, for Defendants/Appellants, Zurich American Ins. Co., Stine, LLC.
    Richard Bray Williams, Williams Family Law Firm, LLC, Natchitoches, LA, for Plaintiff/Appellee, Thomas Medical Group, APMC (Derek McDavid).
    Court composed of JOHN D. SAUNDERS, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   SAUNDERS, Judge.

_JjThis appeal involves a dispute between a health care provider and an employer, its insurer, and a third party administrator. The insurer’s third party administrator and the health care provider were both parties to preferred provider agreements (PPO) with First Health Group Corp (First Health). Despite the existence of this PPO agreement, the health care provider, plaintiff/appellee Thomas Medical Group, APMC (Thomas), which agreed to accept 90% of the statutory reimbursement schedule established in the Louisiana Workers’ Compensation Act, filed a disputed claim for compensation with the Office of Worker’s Compensation by which it sought — and was awarded — -the alleged underpayment amount of $51.66 plus a penalty of $2,000.00 and attorney fees of $4,500.00 against the employer, defendant/appellant Stine, LLC (Stine), and its insurer, defendant/appellant Zurich American Insurance Company (Zurich). Stine and Zurich appealed the judgment. Thomas answered the appeal, asserting that because there were two bills that were discounted improperly, it was entitled to two awards of penalties. Thomas also seeks additional attorney fees for defending the judgment on appeal. For the reasons that follow, we affirm the workers’ compensation judge’s (WCJ) judgment.

FACTS

In January 2002, Gallagher Bassett Services, Inc. (Gallagher Bassett), entered into a contract with First Health allowing Gallagher Bassett access to First Health’s preferred provider network. In July 2005, Dr. James Knecht, a Natchitoches, Louisiana, physician, contracted with First Health to become a member of First Health’s preferred provider network. Dr. Knecht was asked to -complete a 12questionnaire that specifically queried his workers’ compensation practice as part of this enrollment. In November 2006, Gallagher Bassett entered into a Third Party Administrator Agreement with Zurich, whereby Gallagher Bassett agreed to administer certain workers’ compensation claims for Zurich. Zurich provided workers’ compensation insurance to Stine.

Dr. Knecht is a general practitioner in Natchitoches who accepts workers’ compensation cases only on referrals from employers. He employs Acadiana Computer Services to perform his billing. He and his staff were not aware that Stine’s employee, Mr. McDavid, was being seen pursuant to the PPO agreement until an Explanation of Benefits (EOB) was received by his office. His staff alerted him to the fact that First Health had taken a further PPO reduction from the statutory reimbursement schedule that fixes the maximum amount a health care provider can be reimbursed. Thomas then initiated this litigation.

The WCJ heard this matter and, for oral reasons handed down in another matter, found that Stine and Thomas had not negotiated over the application of the PPO agreement to the treatment of workers’ compensation patients, and that PPO arrangements simply are not compatible with the statutory workers’ compensation scheme. Therefore, the WCJ rendered judgment in favor of Thomas.

ASSIGNMENTS OF ERROR

Stine and Zurich assign as error:
(1) The WCJ’s ruling that the PPO contracts are not authorized by the Workers’ Compensation Act;
(2) The WCJ’s ruling that PPO agreements must be specifically authorized by statute to have effect;
|s(3) The WCJ’s ruling that they were arbitrary and capricious in reducing payments to Thomas, thus subjecting them to penalties and attorney fees; and,
(4) The WCJ’s assessment of penalties and attorney fees.

Thomas assigns as error the WCJ’s ruling admitting evidence of the relationship between First Health and a company known as Concentra, Inc., and FOCUS Health Care Management, Inc. Thomas also assigns a error the ruling that Stine and Zurich were only liable for a single penalty, as it contends each failure to properly reimburse constitutes a separate violation of the Workers’ Compensation Act.

ANALYSIS

This Court has wrestled with this issue for the past several months. See Agilus Health (Allison Taylor) v. Accor Lodging N. Am., 09-1049 (La.App. 3 Cir. 3/10/10), 32 So.3d 1120, writ granted, 10-800 (La.6/18/10), 38 So.3d 312, and Central La. Ambulatory Surgical Ctr., Inc. v. Payless Shoesource, Inc., 10-86 (La.App. 3 Cir. 7/28/10), 46 So.3d 689, on rehearing, (La.App. 3 Cir. 10/20/10), 46 So.3d 689. We disagree with the WCJ that this matter hinges upon whether a PPO agreement runs afoul of the Workers’ Compensation Act. Assuming that a PPO agreement is valid, the defendants were not entitled to take any discount on the workers’ compensation reimbursement schedule. The dictates of La.R.S. 40:2203.1, which requires advanced notice to the health care provider either in the form of a benefit card that identifies the PPO or other written notice by the PPO to the provider at least 30 days in advance of services, were not followed. See Touro Infirmary v. Am. Maritime Officer, 09-697 (La.App. 4 Cir. 11/9/09), 24 So.3d 948, and Gunderson v. F.A. Richard & Assocs., Inc., 09-1498 (La.App. 3 Cir. 6/30/10), 44 So.3d 779. Under the plain terms of section 2203.1, unless this notice is provided, “[a] preferred provider organization’s alternative rates of payment shall not be enforceable or binding.” La.R.S. 40:2203.1(B).

Clearly, the lack of notice to Thomas that Mr. McDavid’s treatment would be provided under the auspices of the PPO precludes enforcement of those discounts. These notice provisions are statutorily mandated. They are clear and unambiguous. Gunderson, 44 So.3d 779. The imposition of penalties by the WCJ is subject to review under the manifest error standard. Wilczewski v. Brookshire Grocery Store, 08-718 (La.App. 3 Cir. 1/28/09), 2 So.3d 1214, writ denied, 09-456 (La.4/13/09), 5 So.3d 170. We find that the record reasonably supports the imposition of penalties under La.R.S. 23:1201(F)(4), which reads:

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 for recovery of more than one penalty or attorney fee.

Because the notice provisions were not followed, the WCJ’s imposition of penalties was not manifestly erroneous. See Central La. Amb. Surg. Ctr., Inc., 10-86 (La. App. 3 Cir. 10/20/10), 46 So.3d -689 (On rehearing).

We disagree with Thomas that each failure to reimburse at the proper rate constitutes a separate violation for purposes of imposing penalties. Whether multiple violations occur is a determination subject to review under the manifest error standard. Wyble v. Acadiana Prep. Sch., 07-91 (La.App. 3 Cir. 5/2/07), 956 So.2d 722, writ denied, 07-1178 (La.9/14/07), 963 So.2d 1004. Our supreme court has directed us to “ferret out” these situations. See Fontenot v. Reddell Vidrine Water District, 02-439, p. 18 (La.1/14/03), 836 So.2d 14, 27. We have done so in cases such as Ducote v. Louisiana Industries, Inc., 07-1536 (La.App. 3 Cir. 4/2/08), 980 So.2d 843, and Burnett v. Village of Esterwood, 09-680 (La.App. 3 Cir. 12/9/09), 25 So.3d 997.

In this case, the WCJ found, as fact, that it was a good-faith, single error made by the benefits providers, i.e. that they could pay the negotiated lower prices for health care services, that led to multiple bills being underpaid. Given these circumstances, we cannot say that the WCJ erred in awarding a single penalty to Thomas. Thus, we find the record reasonably supports the imposition of a single penalty.

The WCJ awarded Thomas $4,500.00 in attorney fees. Louisiana Revised Statute 23:1201(F)(4) allows a health care provider to collect an attorney fee based on the actual hours worked. “The [WCJ] has great discretion in the award of attorney’s fees and will not be disturbed absent manifest error.” Dietz v. Guichard Drilling Co., 626 So.2d 79, 83 (La.App. 3 Cir.1993).

In the case before us, Thomas’s attorney submitted an affidavit attesting that as of October 19, 2009, he had worked 2.2 hours on the case. Since October 19, 2009, Thomas’ attorney has also prepared this case for trial and tried this case, along with three others on these issues, in a trial that lasted an entire day. Given the great discretion affording the WCJ on this issue, we find no error in its award.

Thomas also seeks additional attorney fees for work on appeal. The award of additional attorney fees is warranted when the claimant successfully defends its judgment. See Central La. Ambulatory Surgical Ctr., Inc., 10-86 (La.App. 3 Cir. 10/20/10), 46 So.3d 689 (On rehearing). “Generally, when an award for attorney’s | (fees is granted [by the WCJ], additional attorney’s fees are proper for work done on appeal [so as] to keep the appellate judgment consistent with the underlying judgment.” Wilczewski, 2 So.3d at 1226. Accordingly, we award Thomas an additional $1,500.00 in attorney’s fees for work done on appeal.

Thomas assigned an error in the admission of certain documents. We consider this assignment of error moot.

CONCLUSION

The issue of the validity of a PPO agreement to a workers’ compensation case need not be addressed, because even if such an agreement were valid, the notice required be given to the health care provider was not effected. Therefore, the PPO was not allowed to discount the reimbursement below the workers’ compensation reimbursement schedule. The judgment of the Workers’ Compensation Judge awarding Thomas $51.66 is affirmed. Likewise, the notice provisions of the PPO laws are clear and unambiguous. The failure to follow these dictates, yet to still attempt to discount the health care provider’s reimbursement, warrants the imposition of penalties. The single penalty of $2,000.00 is affirmed. Moreover, the award of $4,500.00 in attorney fees is affirmed given the great discretion afforded the WCJ. Finally, Thomas is awarded additional attorney’s fees for this appeal of $1,500.00.

AFFIRMED.

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

GREMILLION, Judge,

concurs in part and dissents in part.

hi find that the attorney fees awarded by the WCJ are too high and should be reduced. Thus, I dissent on this issue for the same reasons I assigned in my dissent in Central La. Ambulatory Surgical Crt., Inc., 10-86 (La.App. 3 Cir. 10/20/10), 46 So.3d 689 (On rehearing). In all other respects I concur with the majority.

      . Dr. Knecht and Dr. Joseph A. Thomas formed the Thomas Medical Group, a corporation operating under Subchapter S. Three years later, Dr. Thomas died. Dr. Knecht is the sole physician member of the Thomas Medical Group.

      . The last exhibit of which Thomas complains consists of documents reflecting the terms of the settlement a class action suit, Gunderson v. F.A. Richard & Assocs., Inc., docket 2004-2417 of the 14th Judicial District Court, Cal-casieu Parish, Louisiana. The suit was settled releasing the “affiliates,” which included entities related to FOCUS and Concentra.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    JEANIE’S TRUCKING, L.L.C. v. JEFFERSON DAVIS PARISH POLICE JURY.
    No. 10-589.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.

      Timothy Michael Cassidy, Cassidy & Gunnell, Jennings, LA, for Plaintiff/Appel-lee, Jeanie’s Trucking, L.L.C.
    David Paul Bruchhaus, Assistant District Attorney, Jennings, LA, for Defen-danVAppellant, Jefferson Davis Parish Police Jury.
    Court composed of JOHN D. SAUNDERS, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges. .
   GREMILLION, Judge.

| ¶ This action arises from the injunctive relief granted in favor of plaintifp'appellee, Jeanie’s Trucking, L.L.C., against the Jefferson Davis Parish Police Jury, prohibiting the police jury from interfering with appellee’s operation of its business in Jennings, Louisiana. For the reasons that follow, we affirm.

FACTS

On January 25, 1989, the Jefferson Davis Parish Code was amended to adopt Chapter 21, a series of zoning ordinances. On April 22, 1992, the police jury granted the request of Gerald Hobson, Sr. and Jeanie Hobson to change the zoning of a lot located at 4026 Aaron Road, Jennings, Louisiana, from an A-l designation to a C-l designation. The stated purpose of the request for zoning change was for the operation of an automobile dealership. The property, though, was never used for that purpose.

Before the rezoning of the property in 1992 to C-l, J & G Trucking had operated as a common carrier and was certified as such by the Interstate Commerce Commission in 1987. The Hobsons, doing business as J & G Trucking, and later under the L.L.C., have operated an automobile transport business for many years from the Aaron Road location. They leased the property from Mr. Nick Carter until they purchased it from him in or about 2005.

In 2009, Mr. Hobson was notified by the 31st Judicial District Attorney that his operation of a “truck terminal” was not in keeping with the property’s zoning. Should he wish to continue operating a “truck terminal,” Hobson was advised, he should 1 ¡.apply for re-zoning to an 1-1 designation. A request for change of zoning to 1-1 was filed by Mrs. Hobson on behalf of Jeanie’s Trucking, L.L.C., on July 20, 2009. The police jury denied that request on September 9, 2009.

After the police jury denied Mrs. Hob-son’s request to re-zone the property to I-1, Jeanie’s Trucking filed suit against the police jury seeking a temporary restraining order, preliminary injunction, permanent injunction, mandamus, and declaratory relief. Specifically, Jeanie’s Trucking asserted that the police jury arbitrarily and capriciously denied its request to rezone the property and that the use of the property since 1984 in the transport business prevented the police jury from enforcing the zoning ordinances against that use. The trial court received evidence and heard testimony in the matter on October 28, 2009, and issued reasons for judgment in Jeanie’s Trucking favor on December 4, 2009. In those reasons, the trial court found that the property’s use was consistent for many years before the zoning ordinances were adopted. Therefore, the trial court declared Jeanie’s Trucking use legally non-conforming and enjoined the police jury from interfering with Jeanie’s Trucking business at the Aaron Road location. Because the evidence at trial demonstrated that there were legitimate concerns for public safety and welfare expressed at the police jury’s hearing on the zoning change request, the trial court found that the police jury was not arbitrary or capricious in denying the request. The police jury then perfected this appeal.

ASSIGNMENTS OF ERROR

The police jury asserts that the trial court erred in granting a permanent injunction and in determining that Jeanie’s Trucking use was legally non-conforming |sas defined in the Jefferson Davis Parish Code.

ANALYSIS

Local governmental subdivisions are empowered to adopt regulations for zoning, which the state constitution declares to be a public purpose. La. Const, art. VI, § 17. The legislature has further enacted legislation regarding the adoption of zoning regulations. See La.R.S. 83:4780.40, et seq. Zoning ordinances enacted by governing authorities and the acts of their zoning commissions, boards of adjustment, or zoning administrators are subject to judicial review on the grounds of abuse of discretion, unreasonable exercise of police powers, excessive use of the power herein granted, or the denial of the right of due process. La.R.S. 33:4780.40. “The actions of a zoning commission will not be disturbed on judicial review unless the court finds that they were plainly and palpably unreasonable, arbitrary, an abuse of discretion, or an unreasonable exercise of police power.” Jenkins v. St. Tammany Parish Police Jury, 98-2627, p. 6 (La.7/2/99), 736 So.2d 1287, 1291.

Non-conforming uses are established to protect the landowner’s use of his property prior to the enactment of zoning ordinances. A party urging that an owner has lost the right to continue a non-conforming use bears the burden of proving that right has been lost. City of New Orleans v. Elms, 566 So.2d 626 (La.1990). Whether a non-conforming use has been lost is a matter of interpretation of the applicable zoning ordinances. A trial court’s finding that a non-conforming use has or has not been lost is subject to review under the manifest error/clearly wrong standard. Deshotel v. Calcasieu Par. Pol. Jury, 323 So.2d 155 (La.App. 3 Cir.1975), writ denied, 326 So.2d 371 (1976).

The resolution of the present matter involves an analysis of whether the request |4for a zoning change in 1992 discontinued the legality of Jeanie’s Trucking non-conforming use. Jefferson Davis Parish Code sections 21-15 thru 21-24 govern nonconforming uses. None of these sections provide for the discontinuance of a nonconforming use when the owner applies for a zoning change. The focus of these sections is on the manner in which the property is actually being used. Nothing in the record suggests that this property has been put to any use since adoption of the zoning ordinances other than its current use. Therefore, as defined by the Jefferson Davis Parish Code, Jeanie’s Trucking did not abandon its nonconforming use by applying for the zoning change in 1992. The trial court’s finding of a legal nonconforming use is reasonably supported by the record and is not manifestly erroneous/clearly wrong.

CONCLUSION

The finding of the trial court that a nonconforming use by Jeanie’s Trucking preexisted the adoption of the zoning ordinances is reasonably supported by the record. Legally, Jeanie’s Trucking did not abandon its nonconforming use by applying for a zoning change in 1992, because the Jefferson Davis Parish Code does not provide for abandonment by such means. The judgment of the trial court is affirmed. Costs of the appeal are taxed to defendant/appellant, Jefferson Davis Parish Police Jury.

AFFIRMED.

      . An A-l zoning designation allows agricultural single-family uses, mixed agricultural/residential uses, and multi-family residential uses. A C-l designation allows a variety of commercial uses, including auto and truck sales, service, and rental.

      . An I-l designation allows certain light industrial uses, such as automotive and truck repair, transit vehicle storage and servicing, and "truck terminals.”


author: DECUIR, Judge.

text:
    Ronald And Peggy BIANCHI v. Dr. Ernesto KUFOY.
    No. 10-607.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.

      Caleb H. Didriksen, Richard J. Garvey, Amanda K. Wingfield, Didriksen Law Firm, New Orleans, LA, for Plaintiffs/Appellants, Ronald and Peggy Bianchi.
    J. Gregory Bergstedt, Jodi C. Andrews, Fraser, Wheeler & Bertstedt, Lake Charles, LA, for Defendant/Appellee, Dr. Ernesto Kufoy.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and ELIZABETH A. PICKETT, Judges.
   DECUIR, Judge.

| Ronald Bianchi and his wife, Peggy Bianchi, filed this medical malpractice suit against Dr. Ernesto A. Kufoy following Mr. Bianchi’s cataract surgery in October of 2002. A jury found Dr. Kufoy had breached the appropriate standard of care in his treatment of Mr. Bianchi but, finding no proof of causation, failed to award damages. The trial court denied the plaintiffs’ motions for judgment notwithstanding the verdict and new trial. For the following reasons, we find that a reasonable factual basis does not exist to support the jury verdict and that the record establishes the jury verdict is clearly wrong and manifestly erroneous. Accordingly, we reverse the jury verdict and render judgment.

On October 30, 2002, Ronald Bianchi was admitted to Beauregard Memorial Hospital for the surgical removal of a cataract and implantation of an artificial lens in his right eye. The surgeon, Dr. Ernesto Kufoy, is an internist who, at the time of this procedure, devoted a small part of his practice to ophthalmology and cataract surgery. The intended surgery was to include the emulsification of the cataract and retention of the lining of the old lens in order to support the posterior placement of the new artificial lens. During the surgery, a complication arose whereby Dr. Kufoy tore the lining of the old lens and was therefore unable to use that lining to support the new lens. Such complication is a known risk of surgery, and the expert testimony showed it can occur in the absence of negligence. In anticipation of this possible complication, Dr. Kufoy had available a different artificial lens which he placed in the anterior portion of the eye, a procedure which the expert testimony agreed was appropriate under the circumstances.

When Mr. Bianchi appeared for his post-surgery appointment the following day, he complained of pain, and Dr. Kufoy determined that his vision was 20/200 in lathe right eye. Dr. Kufoy also found “iris capture,” a condition where the new lens pokes through or attaches to the iris, but is, Dr. Kufoy testified, “without consequence” to the patient. Dr. Kufoy did not investigate the source of the pain or the loss of vision as he did not regard either symptom to be unusual. During the next three days, however, Mr. Bianchi’s pain intensified, and he attempted to contact Dr. Kufoy, who was in Houston yet had no one in DeRidder to take calls for him over the weekend. They finally spoke on Sunday, November 3, and Dr. Kufoy called in a prescription for hydrocodone to alleviate the pain.

Dr. Kufoy then saw Mr. Bianchi in his office on November 4, 2002. His eye was red, swollen, and painful; Mr. Bianchi testified that he could not see out of it. Dr. Kufoy gave the patient a shot of Demerol, examined the anterior part of the eye, and diagnosed closed-angle glaucoma. In an effort to restore the flow of fluid through the eye, he performed a peripheral iridoto-my and sent Mr. Bianchi home without determining if the procedure was in any way successful. Over the next several days, the patient continued to experience pain and diminished vision, but he was unable to reach Dr. Kufoy by phone. On November 11, he appeared at Dr. Kufoy’s office, where a cursory examination was done; he was then referred to a specialist in Houston. Throughout his treatment of Mr. Bianchi, Dr. Kufoy neglected to properly chart the patient’s complaints or his findings, so that his testimony in open court seven years after the surgery was unsupported by the medical records available.

Dr. Jeffrey Lanier, a cornea specialist, saw Mr. Bianchi on November 14, 2002. At that point, the patient’s vision was classified as “light perception only,” or one step away from total blindness in the right eye. The pressure in the eye was very low, the cornea was swollen, and the iris was pushed forward into the cornea. Both cataract 13material and vitreous were found in the eye, leftover from the surgery. The artificial lens was out of place behind the iris, movement which may have occurred spontaneously. Most important, Dr. Lanier diagnosed “kissing choroidals,” which is a significant hemorrhage in the choroid or vascular tissue that nourishes the retina. Dr. Lanier disagreed with Dr. Kufoy’s earlier diagnosis of closed-angle glaucoma and the need for a peripheral iridotomy. He opined that the hemorrhage most likely began during the original cataract surgery by Dr. Kufoy. He referred Mr. Bianchi to Dr. Bailey Lee, a retina specialist, who performed a procedure to drain the hemorrhage on November 18. Over the next several years, Mr. Bianchi underwent multiple eye surgeries and, after a few periods of some improvement, has now been left with virtually no vision in the right eye.

At the risk of oversimplification, we have distilled the medical evidence to the following conclusions: The choroidal hemorrhage caused scarring and other damage to the retina which cannot be corrected, and the swelling and distortion of the iris, which resulted from both the hemorrhage and other problems, damaged the cornea, required a corneal transplant, and ultimately led to the failure of the transplant. Several questions remain, however, including whether this scenario is a foreseeable risk of cataract surgery or whether Dr. Kufoy’s treatment, or failure to treat, caused this disastrous chain of events.

The Bianchis first submitted their claim for malpractice to a medical review panel. The panel found malpractice on the part of Dr. Kufoy and issued the following reasons for its opinion:

After careful review of all documents submitted for our review, it is our opinion that the case of Ronald Bianchi, the complainant, administered by Dr. Ernesto A. Kufoy, was substandard medical care and treatment. The patient should have been followed more closely |4p o st- op eratively by Dr. Ernesto A. Ku-foy, and after having been seen on Monday, November 4, 2002, the patient should have been referred to a specialist. Dr. Ernesto A. Kufoy misdiagnosed the complainant and failed to properly diagnose the problems which were diagnosed in Houston once referral was made as of November 11, 2002.
The evidence supports the conclusion that the defendant, Dr. Ernesto A. Ku-foy, failed to meet the applicable standard of care as charged in the complaint and the conduct complained of was a factor in the asserted resultant damages. The Committee has insufficient evidence to determine any disability and the extent direction [sic] disability suffered by the plaintiff and whether or not there was any permanent impairment and the percentage of said impairment suffered by the plaintiff.

The case then proceeded to a jury trial in December of 2009. The jury determined that Dr. Kufoy breached the standard of care required of him in his treatment of Mr. Bianchi. Nevertheless, the jury found Dr. Kufoy’s breach of the standard of care did not cause injuries to Mr. Bianchi. Consequently, no damages were awarded, and the trial court denied the plaintiffs’ motions for JNOV and new trial. The trial court, in written reasons, briefly reviewed the expert testimony and concluded that there was sufficient disagreement among the experts that the jury could have found either way on the question of causation. The trial court also reiterated its earlier decision to exclude the plaintiffs’ requested jury instruction on the doctrine of res ipsa loquitur, finding the doctrine inapplicable to the facts of this case.

In a medical malpractice action against a physician, the plaintiff carries a two-fold burden of proof. The plaintiff must first establish by a preponderance of the evidence that the doctor’s treatment fell below the ordinary standard of care expected of physicians in his medical specialty, and must then establish a causal relationship between the alleged negligent treatment and the injury sustained. LSA-R.S. 9:2794; Smith v. State through DHHR, 523 So.2d 815, 819 (La.1988); Hastings v. Baton Rouge General Hospital, 498 So.2d 713, 723 (La.1986). Resolution of each of these inquires [sic] are determinations of fact which should not be reversed on appeal absent manifest error. Housley 5v. Cerise, 579 So.2d 973 (La.1991); Smith, 523 So.2d at 822; Rosell v. ESCO, 549 So.2d 840 (La.1989); Hastings, 498 So.2d at 720.

Martin v. E. Jefferson Gen. Hosp., 582 So.2d 1272, 1276 (La.1991).

The record before us contains undisputed evidence of Dr. Kufoy’s breach of the standard of care. Based on this evidence, both the medical review panel and the jury found proof of medical negligence. The question before us now is whether that negligence caused the damages suffered by Mr. Bianchi. The evidence of damages is likewise undisputed. At the time of trial, Mr. Bianchi’s vision in the right eye was classified as light perception only. Therefore, it is only the link between the proven medical negligence and the proven damages which we must examine.

In reviewing this record, we must examine the totality of the evidence to determine whether the judgment is plainly wrong:

The plaintiff need not show that the defendant’s conduct was the only cause of her harm, nor must she negate all other possibilities; rather, she must show that more probably than not she suffered injuries because of the defendant’s conduct. Straley v. Calongne Drayage & Storage, Inc., 346 So.2d 171 (La.1977). In other words, the plaintiffs burden is not to prove her case beyond all doubt or even beyond a reasonable doubt, but merely by a preponderance of the evidence, or 51%; she need not negate all viable theories, but only show that her position is more probable than not. Howell v. Iacona, 505 So.2d 821 (La.App. 2d Cir.1987).
When different medical procedures are involved, the defendant is liable not only for the original harm resulting from his substandard conduct, but for subsequent treatment that seeks to resolve the original harm. Weber v. Charity Hosp. of La., 475 So.2d 1047 (La.1985); Howell v. Iacona, supra.
Under the appropriate standard of review, we do not consider only so much of the evidence as will uphold or undermine the judgment, but rather the whole of the evidence with an eye to determining whether the judgment is plainly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989).

Elliott v. Robinson, 612 So.2d 996, 1006 (La.App. 2 Cir.1993).

iJn written reasons for judgment denying the plaintiffs’ post-trial motions, the trial court focused on Dr. Kufoy’s actions at the time of the cataract surgery. However, whether Dr. Kufoy was negligent in tearing the lining of Mr. Bianchi’s lens is not the pertinent question. Nor is it relevant to try and determine if the choroidal hemorrhage started during surgery as a result of Dr. Kufoy’s substandard technique or simply from a known complication of cataract surgery. Neither of these possibilities can be determined from the medical records. Rather, the focus must be on the post-surgical care of Mr. Bianchi who exhibited unusual symptoms of pain, swelling, redness, and loss of vision. It was Dr. Kufoy’s failure to determine the cause of those symptoms, and his failure to either treat those symptoms or issue a referral to a specialist, that give rise to the theory of a lost chance for a better outcome.

“[M]any medical malpractice cases, especially those in which causation is truly at issue, involve the loss of a chance of survival or of a better chance of recovery.” Graham v. Willis-Knighton Med. Ctr., 97-188, p. 15 (La.9/9/97), 699 So.2d 365, 372. In the case of Hargroder v. Unkel, 39,009 (La.App. 2 Cir. 10/29/04), 888 So.2d 953, 957-58, writs denied, 04-2908, 04-2909 (La.2/4/05), 893 So.2d 874, the second circuit held:

The damage claimed in this case, loss of a chance of a better medical outcome, has its basis in cases dealing with loss of a chance of survival. Smith v. State Department of Health and Hospitals, 95-0038 (La.6/25/96), 676 So.2d 543. The issues in a loss of a chance of survival case are whether the tort victim lost any chance of survival because of the defendant’s negligence and the value of that loss. The question of degree may be pertinent to the issue of whether the defendant’s negligence caused or contributed to the loss, but such a tort-caused loss in any degree is compensa-ble in damages. In such cases, the fact-finder is to focus on the chance of survival lost on account of malpractice as a distinct compensable injury and to value the lost chance as a lump sum award based on all the evidence in the record, as 17is done for any other item of general damages. Smith v. State Department of Health and Hospitals, supra.

In contrast to the instant case, the medical malpractice case of Gust v. Brint, 577 So.2d 1012 (La.App. 4 Cir.), writ denied, 580 So.2d 383 (La.1991), focused on negligent pre-operative care, rather than postoperative care. The focus of the causation issue, the court determined, was not whether the negligence caused the plaintiffs disease, but rather, whether the negligence caused an increased risk of harm to the plaintiff:

[H]ad Dr. Brint not been negligent in his pre-operative care, blepharoplasty would not have been performed, and thus she would not have had the complications she subsequently experienced. Thus the correct inquiry for our determination is not whether the blepharo-plasty caused the onset of Graves disease, but whether it increased the risk of harm to Gust following the onset of that disease.

Id. at 1022.

The plaintiffs have offered eleven acts or omissions which they contend constitute the medical negligence of Dr. Kufoy. These include surgical techniques criticized by their expert, inadequate post-operative examinations and communication with the patient, and the failure to refer Mr. Bianchi to a specialist earlier. The opinions offered by the medical experts on the choroidal hemorrhage varied on the question of when it began, but they generally agreed that he was suffering from a hemorrhage on Monday, November 4, that was not diagnosed until November 14. Only Dr. Louis Kasner, the defendant’s expert, declined to state when or how he thought the hemorrhage could have occurred, instead suggesting remote possibilities such as a child’s finger or a deep cough, none of which were supported by any facts in the record. Dr. Kasner did, however, explain the benefit of a surgeon’s recognition of a hemorrhage: “[I]f a surgeon recognizes that there might be a hemorrhage going |Ron posteriorly, he can rapidly close the eye to seal it. And that will stop the hemorrhage.... ”

Exactly which acts of alleged negligence the jury agreed with are indeterminable. We cannot, however, look at any one act in isolation but must consider the evidence as a whole. Accordingly, when viewing the totality of the evidence, we find sufficient proof that Dr. Kufojfs negligence took away or diminished Mr. Bianchi’s chance for a better recovery from the traumatic and complicated cataract surgery. The plaintiffs’ claim for damages directly relates to that negligence.

In reversing summary judgment in favor of a defendant who admitted negligence but disputed causation, the supreme court held:

Causation is an issue of fact that is generally decided at the trial on the merits. As the dissenting judge on the intermediate court noted, the admitted negligence clearly caused some damages, even if it merely hastened the amputation by one day. Plaintiffs damages for pain and suffering during the period of negligence, for aggravation of her medical condition, and for loss of any chance of saving her foot or of delaying the amputation is more appropriately decided by trial on the merits....

Estate of Adams v. Home Health Care of La., 00-2494, pp. 1-2 (La.12/15/00), 775 So.2d 1064, 1064-1065. The second circuit held similarly in Tillman v. Eldridge, 44,-460 (LaApp. 2 Cir. 7/15/09), 17 So.3d 69.

“Although we are always reluctant to overrule a jury’s verdict, the jury’s decision in this case was manifestly erroneous.” Fusilier v. Dauterive, 00-0151, p. 9 (La.7/14/00), 764 So.2d 74, 81. We, too, hesitate to overrule a jury’s finding but must do so in this case.

Regarding damages, the plaintiffs have requested an award for past and future medical and related expenses in the amount of $176,333.84 and general damages of 19$2,150,000.00, subject to the Louisiana Medical Malpractice cap of $500,000.00. The record before us is complete; therefore, we are able to discern an appropriate amount of damages without remand to the trial court. We have reviewed the evidence in detail. Mr. Bian-chi’s past medical and medical-related transportation expenses are roughly $75,000.00. Dr. Lanier discussed future medical care for Mr. Bianchi and did not recommend any future surgeries, only periodic examinations and symptom-relief medications. The evidence as a whole does not indicate that Mr. Bianchi’s future medicals will approach that which he has already incurred. Therefore, we award $100,000.00 in past and future medical care and related expenses.

We also award general damages to Mr. Bianchi and loss of consortium damages to his wife. Mr. Bianchi has virtually no vision in his right eye. Prior to the surgery, he was a pilot and enjoyed riding his motorcycle. His activities have been greatly curtailed, and this has affected their marital relationship. Consequently, we fix general damages at $300,000.00. See, Reider v. State of La., 04-1403 (La.App. 3 Cir. 3/9/05), 897 So.2d 893, writ denied, 05-938 (La.5/20/05), 902 So.2d 1056; McPherson v. Lake Area Med. Ctr., 99-1876 (La.App. 3 Cir. 5/24/00), 767 So.2d 102, writ denied, 00-1928 (La.9/29/00), 770 So.2d 353. Accordingly, we have concluded that a total award of $400,000.00 will adequately compensate the plaintiffs for their general and special damages. We need not address any other issues raised in this appeal.

For the above and foregoing reasons, the judgment of the trial court is reversed and rendered. Costs of this appeal are assessed to the defendant.

REVERSED AND RENDERED.


author: PETERS, J.

text:
    STATE of Louisiana v. John Jacob FARRIS.
    No. 10-0644.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.
    Don M. Burkett, District Attorney, Anna Louise Garcie, Assistant District Attorney, Eleventh Judicial District, Many, LA, for Appellee, State of Louisiana.
    Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, John Jacob Farris.
    Court composed of JIMMIE C. PETERS, JAMES T. GENOVESE, and DAVID E. CHATELAIN, Judges.

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

   PETERS, J.

| iThe State of Louisiana (state) initially charged the defendant, John Jacob Farris, by bill of information with forcible rape, a violation of La.R.S. 14:42.1. After the state amended the charge to second degree sexual battery, a violation of La.R.S. 14:43.2, the defendant entered a guilty plea, pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to the amended charge. The trial court then sentenced the defendant to serve five years at hard labor, without the benefit of parole, probation, or suspension of sentence. After hearing argument and evidence on the defendant’s motion to reconsider his sentence, the trial court set aside the initial sentence and sentenced the defendant to four years at hard labor, without the benefit of parole, probation, or suspension of sentence. In his appeal, the defendant asserts only that the trial court accepted his Alford plea without first ascertaining that a factual basis existed to support the plea. For the following reasons, we vacate the plea, conviction, and sentence and remand this matter to the trial court for further proceedings.

DISCUSSION OF THE RECORD

At the hearing wherein the defendant entered his guilty plea, the state entered the following factual basis for the plea:

Your Honor, on May 24, 2009, the Sabine Parish Sheriffs department responded regarding an alleged rape. At Sabine Medical Center encountered-officers came in contact with a nurse and she advised that the victim was identified as [M.C.]. She stated that she had bruising around her thigh area, that the examination was consistent with the story that Ms. [C] gave. Ms. [C] lost consciousness at one point prior to coming to the Sabine Medical Center. She indicated that Mr. Farris had been staying with her for approximately one month, that nothing like this had occurred before, that on this night they had consumed some alcohol. She indicated that he started trying to force himself on her. She said she repeatedly asked him to no, please stop, don’t do this. And she does indicate that he did penetrate her and there’s also, Your Honor, a crime lab that would be indicative of that as 1 ¿well although there was no semen found. But he is tendering a plea to second degree sexual battery.[]

In response to this statement of the factual basis, the following verbal exchange occurred involving the trial court, the defendant, and the defendant’s trial counsel:

THE COURT: It’s my understanding, sir, that you’re pleading today based on the evidence that the State possesses and you believe it’s in your best interest to go ahead and plead guilty and get this over with. Is that correct?
DEFENDANT-FARIS[sic]: Yes, sir. I can’t prove any other way—
[COUNSEL FOR THE DEFENDANT]: Your Honor, just for the record, Mr. Farris and I have had pretty extensive conversations about this matter. He has maintained his innocence throughout this ordeal but based on the evidence the State possesses, he does believe it’s in his best interest to plead guilty and we are tendering this plea under Alford versus North Carolina.
THE COURT: I accept your plea, sir. I’m going to set your sentencing down for April 29th at 11:00 a.m. I’m going to order a pre-sentencing investigation to be conducted and returned to me before that date and I’ll sentence you on that date.

As previously stated, the trial court ultimately sentenced the defendant to serve four years at hard labor, without benefit of parole, probation, or suspension of sentence.

OPINION

In his sole assignment of error, the defendant asserts that the trial court erred in accepting his Alford plea without first ascertaining that a factual basis existed to support the plea. Specifically,, the defendant asserts that the record contains nothing to indicate a sexual battery occurred. He correctly asserts in brief that although he did not file a motion to withdraw his guilty plea, the constitutional nature of his argument — that he did not knowingly and intelligently enter a plea to the |soffense— allows him to seek review of his plea. State v. Jordan, 98-101 (La.App. 3 Cir. 6/3/98), 716 So.2d 36.

Louisiana Revised Statutes 14:43.2(A) defines second degree sexual battery as follows:

Second degree sexual battery is the intentional engaging in any of the following acts with another person when the offender intentionally inflicts serious bodily injury on the victim:
(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; or
(2) The touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim.

In considering the defendant’s argument on appeal, we first note that although sexual battery, a violation of La.R.S. 14:43.1, is a responsive verdict to forcible rape, second degree sexual battery is not. La. Code Crim.P. art. 814(10). Additionally, although the factual basis provided at the defendant’s sentencing proceeding contained all the essential elements of forcible rape and of sexual battery, the factual basis did not include evidence of one essential element of second degree sexual battery, specifically “serious bodily injury” having been inflicted on Ms. C. La.R.S. 14:43.2(A).

In State v. Harris, 26,608 (La.App. 2 Cir. 1/25/95), 649 So.2d 796, our brethren in the second circuit considered a factual scenario similar to that now before us. In Harris, the state had initially charged the defendant with forcible rape, and the defendant ultimately entered an Alford plea to aggravated sexual battery. The factual 14basis presented by the state at the plea hearing consisted of evidence that the defendant had engaged in sexual activity with a minor and the acknowledgment by the defendant that the recitation of fact was basically true. However, nothing in the presentation of facts pointed to any serious bodily injury sustained by the victim. When the trial court questioned the absence of serious bodily injury, the defendant’s trial counsel acknowledged that the recited facts did not fit the offense of aggravated sexual battery, but stated that the plea was a compromise. According to the defendant’s trial counsel, although the defendant denied having sexual contact with the victim, the state had evidence that tended to prove otherwise. This lead the defendant’s trial counsel to conclude that pleading to aggravated sexual battery was in his client’s best interest, because the defendant stood a good chance of being convicted as charged and the plea reduced his sentence exposure. The trial court accepted this explanation, directed the state to amend the bill of information, and accepted the defendant’s Alford plea.

On appeal, the second circuit found as an error patent the lack of factual basis to establish the serious bodily injury element of aggravated sexual battery. In holding that without strong evidence of actual guilt in the record, the defendant’s plea had to be considered invalid, the court stated:

[I]n order for the defendant’s plea to be valid under Alford, constitutional due process requires that the trial court record contain “strong evidence of actual guilt” or, as this court has paraphrased Alford, “a significant [substantial] factual basis” for the plea. State v. Jordan, 619 So.2d 648 (La.App. 2d Cir.1993) (citing State v. Linear, [600 So.2d 113 (La.App. 2d Cir.1992) ], and State v. Powell, 584 So.2d 1252 (La.App. 2d Cir.1991)).

Harris, 649 So.2d at 798.

| ^Having reached the conclusion that without proof of the elements of the charged offense the plea would be invalid, the second circuit remanded the matter to the trial court to allow the state an opportunity to cure the deficiency.

While we find the holding in Harris with regard to the failure of proof to be persuasive, we disagree with the nature of the remand. In this case, as in Harris, the defendant seeks to withdraw from a plea agreement. While we agree that he is entitled to the relief requested, we find that the remand should not have the effect of limiting the state to pursuing only the amended charge. That is to say, when a defendant’s plea to a lesser offense is set aside at his request, the state may pursue further prosecution on the greater offense.

[I]t appears that retrial on the greater charge will impose no [North Carolina v.] Pearce [395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) ] due process limitation on the possible sentence imposed, provided of course that the sentence is otherwise in conformity with law. The court retains its sentencing discretion due to the fact that the state never elected on which charge it would try the defendant if the case went to trial. The greater charge was dropped in return for a plea to the lesser one. After the plea was vacated the situation reverted to the pre-plea stage. Here we have a situation where there has been a major change other than just an appeal by his own hand, defendant has upset his bargain and now pleaded not guilty to both charges. There is no appearance of retaliation when a defendant is placed in the same position as he was before he accepted the plea bargain.

State v. Boudreaux, 402 So.2d 629, 632-33 (La.1981) (citation omitted); see also, State v. Smith, 406 So.2d 1314 (La.1981); State v. Smith, 04-338 (La.App. 3 Cir. 9/29/04), 883 So.2d 505; State v. Handley, 453 So.2d 1242 (La.App. 1 Cir.1984), writ denied, 457 So.2d 1199 (La.1984).

| r,DISPOSITION

For the foregoing reasons, we vacate the defendant’s plea, conviction and sentence, and remand this matter to the trial court for further proceedings consistent with this opinion.

PLEA, CONVICTION AND SENTENCE VACATED, AND REMANDED WITH INSTRUCTIONS.

      . Pursuant to La.R.S. 46:1844, we use initials in this opinion to identify the victim.

      . For the purposes of La.R.S. 14:43.2(B), “serious bodily injury means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.”

      . The second circuit further instructed the trial court that if the state could not cure the deficiency at a further hearing, it was to set aside the guilty plea.


author: GENOVESE, Judge.

text:
    Linda J. BURNS, Leon Burns, Elaine M. Long, Marshall Long, and Evie J. Dixon v. Ted and Don COUVILLION, Louisiana Farm Bureau Casualty Insurance Company, Burton P. Dupuis, Victor Lachney, Progressive Security Insurance Company, Automobile Club Inter-insurance Exchange and Geico Indemnity Company.
    No. 10-763.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.

      W. Thomas Angers, Lafayette, Louisiana, for Plaintiffs/Appellants, Linda J. Burns, Leon Burns, Elaine M. Long, Marshall Long, and Evie J. Dixon.
    Cory P. Roy, Marksville, Louisiana, for Plaintiffs/Appellants, Linda J. Burns, Leon Burns, Elaine M. Long, Marshall Long, and Evie J. Dixon.
    Ian A. MacDonald, Jones, Walker, Wae-chter, Poitevent, Carrére & Denegre, L.L.P., Lafayette, Louisiana, for Defendant/Appellee, Progressive Security Insurance Company.
    Peter F. Caviness, Falgoust, Caviness, & Bienvenu, L.L.P., Opelousas, Louisiana, for Defendant/Appellee, Louisiana Farm Bureau Casualty Insurance Company.

      Michael Johnson, Johnson & Siebeneicher, Alexandria, Louisiana, for Defendant/Appellee, Automobile Club Inter-Insurance Exchange.
    Brian D. Cespiva, Gravel, Cespiva, & Wilkerson, Alexandria, Louisiana, for De-fendanVAppellee, Automobile Club Inter-Insurance Exchange.
    Russell L. Potter, Stafford, Stewart & Potter, Alexandria, Louisiana, for Defendants/Appellees, GEICO Indemnity Company and Economy Premiere Assurance Company.
    Michael Corry, Briney, Foret & Corry, Lafayette, Louisiana, for Defendants/Ap-pellees, Burton Dupuis and Victor Lach-ney.
    Court composed of JIMMIE C. PETERS, JAMES T. GENOVESE, and DAVID E. CHATELAINE, Judges.

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

   GENOVESE, Judge.

| plaintiffs, Linda J. Burns, Leon Burns, Elaine M. Long, Marshall Long, and Evie Dixon (collectively “Burns”), appeal the trial court’s grant of summary judgment in favor of Defendant, Progressive Security Insurance Company (Progressive). For the following reasons, we affirm.

FACTS

The present litigation arises out of an automobile accident which occurred on October 12, 2005, in Simmesport, Louisiana. Linda Burns was operating a vehicle, occupied by Evie Dixon and Elaine Long, on Louisiana Highway 1, preparing to make a left-hand turn, when she was rear-ended by a 1988 International 53500 farm vehicle bean truck, being operated by Burton Du-puis. At the time of the accident, Mr. Dupuis was in the course and scope of his employment with Victor Lachney and was engaged in bean harvesting operations. The farm truck being driven by Mr. Du-puis was owned by Ted and Don Couvillion and had been lent by them to Mr. Lachney on that particular occasion.

Burns filed suit against Progressive, among others, alleging that the policy of insurance issued by Progressive to Mr. Lachney provided coverage for the damages they sustained as a result of the negligence of Mr. Dupuis. Progressive admitted that it had issued a policy of insurance to Mr. Lachney, which policy provided coverage on a separate vehicle, but denied that coverage existed under the policy for the vehicle involved in the accident, the 1988 International 53500 farm vehicle, or for the driver of said vehicle, Mr. Dupuis.

Burns filed a motion for summary judgment on the issues of the liability of Mr. Dupuis and of coverage under the Progressive policy. Progressive filed a cross-motion for summary judgment relative to coverage. Following a hearing on April 13, [22009, the trial court denied Burns’ motion for summary judgment on both issues raised therein. On the issue of coverage, the trial court found that there was no coverage under the Progressive policy for the accident at issue and granted summary judgment in favor of Progressive. Burns appealed.

ASSIGNMENTS OF ERROR

Burns presents the following assignments of error for our review:

Assignment of Error No. 1:
The [district [cjourt committed reversible error by issuing conflicting judgments[ ] on the issue of coverage by [Progressive].
Assignment of Error No. 2:
The [district [c]ourt committed reversible error by even considering a motion for summary judgment by Progressive, which it did on April 13, 2009, because the motion was not properly served and heard on April 13, 2009.
Assignment of Error No. 3:
The district court committed reversible error in holding that there is no competent evidence that Burton Du-puis was liable for the subject accident, although he probably would be found to be liable.
Assignment of Error No. 4:
The district court committed reversible error in not holding that the non-owned auto endorsement applied to provide coverage for the vehicle and the operator of the vehicle which caused the subject accident.
Assignment of Error No. 5:
The [district [e]ourt erred in applying the combined effect of Sections 6912, [1]890[,] and 1781 to Progressive’s [pjolicy.

LAW AND DISCUSSION

Standard of Review

The issues raised in the present appeal involve questions of law. “We, therefore, must perform a de novo review of the record and determine whether the trial court’s decision is legally correct.” Maynard v. Hatfield, 10-162, p. 2 (La.App. 3 Cir. 6/2/10), 40 So.3d 1162, 1164, writ denied, 10-1531 (La.10/1/10), 45 So.3d 1104 (citing Bailey v. City of Lafayette, 05-29 (LaApp. 3 Cir. 6/1/05), 904 So.2d 922, writs denied, 05-1689, 05-1690, 05-1691, and 05-1692 (La.1/9/06), 918 So.2d 1054, 1055).

Conflicting Judgments

In their first assignment of error, Burns asserts that the trial court erred in issuing conflicting judgments on the issue of insurance coverage under the Progressive policy. We disagree.

The record reflects that the trial court held a March 19, 2007 hearing on a motion for summary judgment filed on behalf of Progressive. The trial court denied Progressive’s motion and signed a concomitant judgment on March 29, 2007. Progressive filed a subsequent motion for summary judgment on April 13, 2009, the grant of which is the subject of the present appeal. Burns argues, in brief, that because Progressive “did not take an appeal or writs on [the 2007] judgment” and “the issue of coverage had been previously reviewed by the [district] court[,] .... this court should consider the issue of coverage res judicata because of the failure to seek timely relief before this court on the issue of coverage.”

|4The denial of a motion for summary judgment is an interlocutory judgment. See S.S. v. State, 00-953 (La.App. 3 Cir. 9/20/00), 771 So.2d 187. Thus, an appeal cannot be taken from a trial court’s denial of a motion for summary judgment. La. Code Civ.P. art. 968. While Progressive could have applied for supervisory writs, it was not required to do so. Moreover, there is no legal prohibition against a party re-urging a previously denied motion for summary judgment. Belt v. Wheeler, 36,585 (La.App. 2 Cir. 12/18/02), 833 So.2d 1256; Melton v. Miley, 98-1437 (La.App. 1 Cir. 9/24/99), 754 So.2d 1088, writ denied, 99-3089 (La.1/7/00), 752 So.2d 867. Therefore, we find no merit to the first assignment of error.

Hearing on Progressive’s Motion for Summary Judgment

In its second assignment of error, Burns contends that the trial court erred in hearing Progressive’s motion for summary judgment “because the motion was not properly served and heard on April 13, 2009.” We disagree.

The transcript reveals the following colloquy between the attorneys and the trial court at the opening of the hearing:

BY MR. MACDONALD:
I was just going to Your Honor[.] Mr. Angers and I filed cross[-]Motions for Summary Judgment on the exact same issue and agreed to waive service and so that the [cjourt could take it up at this time.
BY THE COURT:
As to the issue on Progressive.
BY MR. MACDONALD:
Yes, sir.
BY MR. ANGERS:
Yes, sir.

IsAdditionally, following discussions in open court and in chambers, the trial court stated the following:

BY THE COURT:
Very good. Mr. Mac[d]onald your motion was just received so I am just going to sign it setting it for hearing today with the understanding that it is under advisement.
BY MR. MACDONALD:
Thank you, Judge.
BY THE COURT:
All right.
BY MR. ANGERS:
Thank you, Judge.

Based upon the foregoing, we find that Burns expressly waived service of Progressive’s motion for summary judgment; thus, they are precluded from now asserting on appeal that the motion was not properly served. For these reasons, we find no merit to this assignment of error.

Liability

The third assignment of error raised by Burns on appeal is that the trial court erroneously found “no competent evidence” of the fault of Mr. Dupuis. However, the issue of liability is not properly before this court for its consideration.

Burns, in their motion for summary judgment, raised the issue of the negligence of Mr. Dupuis. However, Burns’ motion for summary judgment was denied by the tidal court. As discussed above, an appeal cannot be taken from a trial court’s denial of a motion for summary judgment. La.Code Civ.P. art. 968. We, therefore, do not |ficonsider Burns’ third assignment of error as it is not properly before us. Coverage

The fourth and fifth assignments of error raised by Burns both encompass the issue of coverage under the Progressive policy. As such, we will discuss them together.

The crux of Burns’ argument on the issue of coverage is that the Progressive policy contained Form No. 1890 (06/04), an Employers Non-Ownership Liability Endorsement, which provides that “[t]he definition of insured auto is modified to include a non-owned auto when you or any of your employees use the non-owned auto in your business.” Applying the provisions of this endorsement, Burns concludes that the 1988 International 53500 farm vehicle involved in the accident is an insured auto, since Mr. Dupuis, an employee of Mr. Lachney, was using the vehicle in Mr. Lachney’s business of harvesting beans. They conclude, therefore, that coverage exists under the Progressive policy for the damages they sustained.

To the contrary, Progressive maintains that “[t]he policy is not modified nor is there any indication that it is modified by Form No. 1890 (06/04)[,]” the Employers Non-Ownership Liability Endorsement. Particularly, Progressive notes that the Declarations Page specifically identifies those forms which do modify the policy. Although there are some forms delineated on the Declarations Page of Mr. Lachney’s policy, notably absent therefrom is Form No. 1890 (06/04).

Differing pages or sections of the Progressive policy are identified by reference to a form number. The Declarations Page, which itself is Form 6489 LA (05/02), provides: “The policy contract is form 6912 (02/04). The contract is modified by forms 4852LA (04/05), 4881LA (04/05) and 4792LA (01/03).” The cover of the 17poIicy, Form No. 1781 (02/05) LA, identifies the policy as a commercial auto insurance policy issued by Progressive, and provides, as follows:

LOUISIANA COMMERCIAL AUTO POLICY AGREEMENT
PLEASE READ YOUR POLICY AGREEMENT CAREFULLY. Provisions of this Agreement and its endorsements restrict coverage. Be certain you understand all of the coverage terms, the exclusions and your rights and duties.
This booklet contains Form No. 6912 (02/04) and a section of selected endorsements.
All forms in the endorsement section may not pertain to your policy. Please refer to your Declarations Page for form numbers associated with your policy. All other parts of the policy that have not been modified by an endorsement will remain unchanged.

Following the Index of Policy Provisions is Form 6912 (02/04), consisting of the thirty-two pages of the policy contract. Next in sequence is an Index of Endorsements. Form No. 1890 (06/04), the Employers Non-Ownership Liability Endorsement at issue in this case, is listed on this index, among others, comprising a total of eight endorsements. Each of these endorsements then appear as set forth on the index.

Burns contends that all of the endorsements which follow the policy contract, including the Employers Non-Ownership Liability Endorsement, “are. not optional endorsements or optional endorsements that may be selected.” They reach this conclusion, despite the bold language on Form 1781 (02/05) LA which expressly notes that not all forms appearing in the endorsement section necessarily apply to a given policy, by negating Form 1781 in its entirety. It is Burns’ position that “nothing in Endorsement Form 1781 can be considered effective unless Form 1781 is listed on the Declarations Pages, and it clearly is not.” Their argument, however, lafails to distinguish between forms, endorsements, and modifications of the policy contract.

As described above, the differing pages or sections of the Progressive policy are identified by form numbers. Consistent therewith, the policy contract and each of the endorsements have a unique form number. While all endorsements have form numbers, not every page containing a form number is an endorsement. Those forms which are available endorsements are those eight forms listed on the Index of Endorsements; however, only those endorsements listed on the Declarations Page of the policy are applicable to the policy. Notably, however, Form 1781 (02/05) LA is not an endorsement, and Burns’ characterization of it as “Endorsement Form 1781” is a mischaracterization. Moreover, Form 1781 (02/05) LA is not rendered ineffective by its failure to appear on the Declarations Page as Burns argues. Rather, it is only those forms, be they endorsements or otherwise, that modify the policy contract that must be set forth and identified on the Declarations Page. Form 1781 (02/05) LA quoted above, which contains general information and introductory language, in no way modifies the policy contract.

“An insurance policy is an agreement between the parties and should be interpreted by using ordinary contract principles.” Orazio v. Henderson, 01-28, p. 2 (La.App. 3 Cir. 7/11/01), 790 So.2d 754, 755 (quoting Ledbetter v. Concord Gen. Corp., 95-809, p. 3 (La.1/6/96), 665 So.2d 1166, 1169, amended on other grounds, 95-809 (La.4/18/96), 671 So.2d 915). Additionally, “[t]he contract has the effect of |9law for the parties. La.Civ.Code art. 1983.” Id. When the language in an insurance contract is clear and explicit, no further interpretation may be made in search of the party’s intent. Hill v. Shelter Mut. Ins. Co., 05-1783, 05-1818 (La.7/10/06), 935 So.2d 691. A court should not strain to find ambiguity where none exists. Hebert v. Webre, 08-60 (La.5/21/08), 982 So.2d 770.

A review of Progressive’s policy reveals clear and unambiguous language. The policy expressly notes in bold language that not all endorsements pertain to a given policy. Additionally, the forms which result in a modification of the policy contract are delineated on the Declarations Page. If a form, be it an endorsement or otherwise, that would modify the policy contract does not appear on the Declarations Page, the provisions of that form do not apply in that instance. In this case, the policy issued by Progressive to Mr. Lachney contains a Declarations Page that does not identify Form No. 1890 (06/04) as being a form that modifies the policy contract. Therefore, the Employers Non-Ownership Liability Endorsement does not apply to Mr. Lachney’s policy, and the definition of an insured auto within the policy contract was not modified to include a non-owned auto used by Mr. Lachney or any of his employees in connection with Mr. Lachney’s business.

We conclude, therefore, that Mr. Dupuis was not an insured under the Progressive policy and that the 1988 International 53500 farm vehicle was not an insured auto under the Progressive policy. Additionally, the Progressive policy was not modified by Form No. 1890 (06/04), the Employers Non-Ownership Liability Endorsement, so as to provide coverage for a non-owned auto. Given these policy provisions, there remains no genuine issue as to any material fact and, as a matter of law, the Progressive policy did not provide coverage for Burns’ damages. | lflAccordingly, we find no legal error in the trial court’s grant of Progressive’s motion for summary judgment on the issue of coverage.

DECREE

For the foregoing reasons, we affirm the trial court’s grant of summary judgment in favor of Defendant, Progressive Security Insurance Company, dismissing the claims of Linda J. Burns, Leon Burns, Elaine M. Long, Marshall Long, and Evie J. Dixon, with prejudice. We assess all costs of this appeal to Linda J. Burns, Leon Burns, Elaine M. Long, Marshall Long, and Evie J. Dixon.

AFFIRMED.

      . The issue of liability raised in Burns’ third assignment of error does not raise a question of law. However, for the reasons set forth below, we will not consider this assignment of error as it is not properly before us on appeal.

      . By illustration, not all of the forms identified on the Declarations Page of Mr. Lach-ney's policy are endorsements. Forms 4852LA (04/05) and 4881LA (04/05) are a Cancellation and Nonrenewal Endorsement and a Louisiana Amendatory Endorsement, respectively. However, Form 4792LA (01/03) is entitled Notice of Terrorism Insurance Coverage. Although it is not an endorsement, this form does modify the policy contract and, for this reason, is identified on the Declarations Page.


author: DAVID E. CHATELAIN, Judge Pro Tern.

text:
    Tim WEAVER v. SOUTHERN ERECTORS, INC. OF FLORIDA.
    No. 10-783.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.

      Richard E. King, Jennifer L. Simmons, Jeffrey P. Green, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, for Defendants/Appellants, The Hartford Insurance Company Southern Erectors, Inc. of Florida.
    Gregory J. Hubachek, Attorney at Law, Natchitoches, LA, for Plaintiff/Appellee, Tim Weaver.
    Court composed of JIMMIE C. PETERS, JAMES T. GENOVESE, and DAVID E. CHATELAIN, Judges.
   DAVID E. CHATELAIN, Judge Pro Tern.

k The defendants, Southern Erectors, Inc. of Florida (Southern) and its workers’ compensation insurer, The Hartford Insurance Company (The Hartford), appeal a judgment the workers’ compensation judge (WCJ) rendered in favor of its former employee, Timothy Weaver (Weaver), finding that he was injured in a work-related accident and awarding him workers’ compensation benefits, along with penalties and attorney fees. Weaver answers the appeal seeking multiple penalties, attorney fees for work done on appeal, and costs. For the following reasons, we amend to award additional penalties, award attorney fees for appellate representation, and affirm.

FACTS AND PROCEDURAL HISTORY

On August 25, 2008, Weaver filed a 1008 Disputed Claim for Compensation against Southern seeking benefits and medical treatment pursuant to the Louisiana Workers’ Compensation Act, La.R.S. 23:1021-1415, for injuries that he sustained in a workplace accident on August 13, 2008. Weaver further sought an award of statutory penalties and attorney fees. In answering Weaver’s claim, Southern admitted that he was in the course and scope of his employment with Southern at the time of the alleged accident and injury but denied that he was disabled and entitled to indemnity benefits. In addition, Southern denied any liability for penalties and attorney fees, contending that it had “reasonably investigated and handled” Weaver’s claim.

|2The matter was originally set for trial on July 7, 2009; however, Weaver filed an unopposed motion to continue the trial in order for him to complete necessary diagnostic testing that his treating physician recommended. Weaver attached to the motion correspondence from his attorney to Southern’s attorney documenting the fact that Southern’s workers’ compensation insurer had pre-authorized the tests referenced in the motion and that Southern had agreed to unconditionally tender twelve weeks of temporary total disability benefits (TTDs) to Weaver.

The matter was tried on December 9, 2009. Weaver offered twelve exhibits, including the medical bills that he incurred as a result of the accident and the deposition of Dr. Pierce Nunley, his treating orthopedist. The defendants offered ten exhibits, including the deposition of Lee Tillman, Weaver’s supervisor at the time of the accident, as well as the deposition of Dr. Gordon Mead, an orthopedist who performed an independent medical examination (IME) on Weaver at Southern’s request. All of the exhibits were admitted into evidence without objection. Weaver was the only witness to testify live. At the close of trial, the WCJ took the matter under advisement and requested that the parties file post-trial briefs.

Oral reasons for judgment were read into the record on March 22, 2010, and a written judgment in accordance therewith was signed on March 29, 2010. The WCJ determined that Weaver sustained personal injuries that were caused by the workplace accident that occurred on August 13, 2008. He found that Weaver had satisfied his burden of proving that he was entitled to TTDs from August 15, 2008 through June 30, 2009 and that he was entitled to supplemental earnings benefits (SEBs) from July 1, 2009. In addition, the WCJ found that Weaver had satisfied his burden of |sproving that he was entitled to TTDs from September 1, 2009 through the present and continuing thereafter. He further found that Weaver had satisfied his burden of proving that he was entitled to payment of any unpaid claims for workers’ compensation medical benefits, without any discount, for treatment rendered to him by Dr. Gary Swart, Dr. Gregory Bell, and Dr. Nunley. The WCJ ruled that the defendants were entitled to a credit for the weeks of TTDs that had already been paid to Weaver and for any medical benefits that had been paid to any of Weaver’s healthcare providers. Two penalties were assessed against the defendants under La. R.S. 23:2101(F) in the amount of $2,000 each; one for failure to tender payment of indemnity benefits and one for failure to tender payment of medical benefits. Weaver was awarded $7,500 in attorney fees pursuant to La.R.S. 23:1201 (F). Finally, the defendants were assessed all costs associated with the matter.

The defendants are now before this court asserting two errors. First, they contend that the WCJ erred in finding that Weaver was injured in a workplace accident and, thus, entitled to workers’ compensation benefits. Next, they contend that the WCJ erred in awarding Weaver penalties and attorney fees because they had articulable and objective reasons for denying his claim. Weaver answers the appeal requesting that this court amend the judgment to assess multiple penalties against the defendants and that this court award him additional attorney fees and costs for having to defend this appeal.

DISCUSSION

A worker bringing a compensation action against his employer bears the burden of proving, as a threshold requirement, that he suffered “ ‘personal injury by accident arising out of and in the course of his employment.’ [La.]R.S. 423:1031[ (A) ].” Bruno v. Harbert Int’l Inc., 593 So.2d 357, 360 (La.1992). The word “accident” as used in La.R.S. 23:1031 is defined as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La.R.S. 23:1021(1).

In Bruno, 593 So.2d at 360-61 (citations omitted), the Louisiana Supreme Court noted that, while “Louisiana courts view the question of whether there was an accident from the worker’s perspective^] ... the worker’s burden of proof is not relaxed. Rather, as in other civil actions, the plaintiff-worker in a compensation action has the burden of establishing a work-related accident by a preponderance of the evidence.” Regarding the claimant’s burden of proof, the Bruno court went on to state, “[a] worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker's testimony is corroborated by the circumstances following the alleged incident.” Id. at 361. In addition, this court has held that the mere existence of a pre-existing condition alone does not foreclose the receipt of workers’ compensation benefits where there is evidence that the on-the-job accident aggravated and accelerated the claimant’s pre-existing condition. Bush v. Avoyelles Progress Action Comm., 07-685 (La.App. 3 Cir. 10/31/07), 970 So.2d 63.

This court discussed the standard of review employed in workers’ compensation cases in Foster v. Rabalais Masonry, Inc., 01-1394, pp. 2-3 (La.App. 53 Cir. 3/6/02), 811 So.2d 1160, 1162, unit denied, 02-1164 (La.6/14/02), 818 So.2d 784:

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Smith v. Louisiana Dep’t of Corrections, 93-1305 (La.2/28/94); 633 So.2d 129. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart v. State, 617 So.2d 880 (La.1993). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Id. Thus, “if the [fact-finder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

“The determination of coverage is a subjective one in that each case must be decided from all of its particular facts.” Jackson v. Am. Ins. Co., 404 So.2d 218, 220 (La.1981). This court has held that, in light of that standard of review, “great deference is accorded to the [workers’ compensation judge’s] factual findings and reasonable evaluations of credibility.” Cent. Lumber Co. v. Duhon, 03-620, p. 3 (La.App. 3 Cir. 11/12/03), 860 So.2d 591, 593, unit denied, 04-315 (La.4/2/04), 869 So.2d 880 (alteration in original) (quoting Garner v. Sheats & Frazier, 95-39, p. 7 (La.App. 3 Cir. 7/5/95), 663 So.2d 57, 61).

Did an injury producing on-the-job accident occur?

The defendants stipulated at trial that Weaver was employed by Southern and was in the course and scope of his employment when the alleged workplace accident occurred. Nevertheless, they maintain that Weaver did not suffer any compensable injuries in that accident. While they acknowledge that a worker’s testimony alone can be enough to discharge his burden of proof, the defendants argue that Weaver’s testimony lacked credibility, that Weaver has a history of physical altercations which Rmakes it “conceivable that Weaver actually suffered an injury some time after the alleged workplace accident,” and that no evidence was offered to corroborate Weaver’s story. Weaver counters that the evidence submitted at trial conclusively proved that he was injured in the workplace accident that occurred on August 13, 2008, that he reported his injuries to his employer soon after the accident, that he sought medical treatment for those injuries within days of the accident, and that the medical evidence supports his claim that he continues to suffer from a disabling condition, thus, entitling him to workers’ compensation benefits.

In his 1008 claim, Weaver alleged that he injured his neck, elbows, and shoulder when a man lift that he was in was “struck by a heavy part of a precipitator.” At trial, Weaver testified that on the morning of August 13, 2008, he was helping to move a section of flooring for a precipitator. He was in the basket of a man lift, which was extended approximately eighty feet into the air and under the load. The section of flooring measured sixty feet by forty feet, and it was two feet thick. It was made of solid steel and weighed approximately sixteen and one-half tons. He was helping to guide the section of flooring into place to be attached between two walls, with about one-half inch room for error on either side. Weaver explained that because the solid floor blocked their view of each other, he and Mr. Tillman were “hollering back and forth,” and Mr. Tillman was signaling the crane operator.

According to Weaver, he had just swung the basket out from under the load when the load dropped about fourteen feet, hitting the arm of the basket and springing |7him up in the air and back down again, Although he was wearing a sixty-five pound tool belt and had braced himself when he saw the load dropping, he nonetheless sprung up and his harness was all that stopped him from being thrown out of the basket. He opined that he would have been killed if the accident had happened ten seconds earlier.

Weaver testified that Terry Hollister, a co-worker, was severely hurt in the accident and that everyone had focused their attention on assisting him. He explained that after the crane operator had re-secured the load, they noticed that Mr. Hol-lister was hanging from his harness and had passed out. After Mr. Hollister was rescued and taken away by ambulance, operations ceased for the day, and everyone involved was interviewed regarding the accident. According to Weaver, he did not mention that the man lift had been struck by the falling load or that the falling load jarred him around because “Terry’s the only one we w[ere] worried about at the time.”

Weaver stated that the fact that the crane had struck the man lift was brought to “the attention of everybody,” including his supervisor, Mr. Tillman, on either the day of the accident or the following day and that the man lift had been inspected on one of those two days. There were heavy scrapes on the man lift where the load had struck it. Weaver admitted, however, that the damage to the man lift had not prevented him from operating it.

According to Weaver, the job was still shut down when he reported to work the day after the accident. He did not report to work from August 15 to August 18 because his right arm had begun to bruise and had swollen to twice its normal size and was causing him pain. He explained that he had not sought medical attention at Isthat time because he thought that “it would go away.” When he did return to work on August 19, 2008, he immediately reported his injury to the safety man of the entire work site as well as to Mr. Tillman. Weaver was told that he had to take a drug test before they would schedule him to see a doctor or contact the workers’ compensation insurer. He refused to take the drug test because he had taken a Lortab that his mother had given him for pain, and he did not want a failed drug test in his employment record. At that point, Southern terminated him.

Weaver first sought treatment from Dr. Swart, a chiropractor, on August 28, 2008. Weaver explained that Dr. Swart “wouldn’t touch me” and instead referred him to his family physician, Dr. Bell, for evaluation and treatment. Later that day, Dr. Bell’s nurse practitioner saw him, and he was given a referral to see an orthopedist. Weaver explained that when “they” refused to pay for an orthopedic consult, he returned to Dr. Bell four or five more times. Dr. Bell wrote him a few prescriptions for pain pills but told him that he needed to see an orthopedist to “fix the problem” because he (Dr. Bell) did not want to just “feed [him] pain pills.” Weaver eventually saw Dr. Nunley, an orthopedist, on April 8, 2009, and was told that he could not continue to do the kind of work that he had been doing. Dr. Nunley had explained that he had “knots on the two discs in [his] neck and that he[, Dr. Nun-ley,] was going to give [him] some type of nerve shot” but that if that did not work, he would need surgery. Weaver was also seen by Dr. Mead at Southern’s request.

In Guilbeaux v. Martin Mills, Inc., 93-1359 (La.App. 3 Cir. 5/4/94), 640 So.2d 472, writ denied, 94-1444 (La.9/23/94), 642 So.2d 1291, the claimant felt a sharp pain while cutting fabric at her job. Although she immediately reported her 13discomfort to her instructor and several coworkers, she continued to work and did not inform her employer that she suffered a work-related accident until approximately three months after the incident when her doctor told her that the work-related incident was the source of her injury. In reversing the WCJ’s finding that Guilbeaux had not suffered a work-related accident, we stated that the claimant “should not be barred from recovery because she did not realize or diagnose the full extent of her injury immediately after it happened. Nor should she or any other worker be penalized for trying to work as much as he or she can, despite the pain.” Id. at 476. See also Wackenhut Corr. Corp. v. Bradley, 96-796 (La.App. 3 Cir. 12/26/96), 685 So.2d 661.

In his oral reasons for judgment, the WCJ in the present case noted that “there certainly was not a calm situation facing everyone there, particularly with the injury of the other individual in question[;] ... they were scrambling around to get the man lift that Mr. Weaver was operating to rescue the other injured worker, and this was accomplished.” The WCJ further noted that the deposition of Mr. Tillman corroborated Weaver’s testimony that either on the day of or the day after the accident he had reported that the man lift had been hit. Mr. Tillman’s deposition also confirmed that when Weaver returned to work on the Tuesday following the accident, after having missed several days of work, he reported his injury and complaints of pain to Mr. Tillman and the safety people.

The WCJ found that the records from Weaver’s August 28, 2008 visit to Dr. Swart’s office corroborated Weaver’s testimony of how the accident occurred as well as Weaver’s testimony that he initially thought that he was not seriously injured and that his pain would resolve on its own. Dr. Swart’s examination of Weaver revealed that he had bruising and epicondyli-tis, or inflammation, of his right elbow 110and that he had complaints regarding his upper extremities. Dr. Swart recommended that Weaver see Dr. Bell and an orthopedist and that he be tested to rule out cervical disc involvement.

The WCJ found that the records from Weaver’s August 28, 2008 visit to Dr. Bell’s office indicated that Weaver gave a history of the accident that was consistent with how Weaver testified at trial. The WCJ made a similar finding with regard to the history that Weaver gave to Dr. Nun-ley on April 8, 2009.

The WCJ meticulously detailed Weaver’s medical records. He stated that Dr. Nunley noted that the X-rays showed that Weaver had multilevel spondylosis, instability at C5-6, and mild movement at C6-7. Dr. Nunley had diagnosed Weaver with neck pain, cervical spondylosis, and cervical radiculopathy, and he opined that Weaver might at some point be a candidate for cervical surgery. Further, Dr. Nunley found that Weaver continued to have complaints and that Weaver remained disabled from doing the heavy type of work that he had performed at Southern. The WCJ noted that according to Dr. Nunley and the radiologist who read the report of Weaver’s July 6, 2009 MRI, the test revealed that his C3-4 “contained a disc herniation with bilateral neural fora-minal narrowing, which means that the ... C4 nerve root [ ] was being constrained somewhat as it was exiting the spine.” The MRI also revealed that Weaver had “a fairly large central disc herniation” at C4-5 and C5-6 and some mild narrowing where the C6 nerve root exits the spine. The WCJ opined that the aforementioned objective findings corroborated the complaints Weaver expressed. Nonetheless, the WCJ noted that Dr. Mead opined that Weaver suffered only straining injuries to his cervical area that he would have expected to resolve within six to twelve weeks.

|nThe WCJ accurately stated the law pertaining to this matter, including the Bruno test for determining whether a worker’s testimony alone is enough to satisfy his burden of proof. See Bruno, 593 So.2d 357. Thereafter, the WCJ found that Southern did not present any evidence that would cast serious doubt on Weaver’s explanation of the events of August 13, 2008. The WCJ further found that Weaver had been consistent in his description of the accident to all of the physicians who examined him and that the medical records corroborated Weaver’s complaints. In addition, the WCJ found that Mr. Tillman’s deposition confirmed that Weaver had told him that the falling precipitator struck his man lift.

With regard to the defendants’ contention that Weaver lacked credibility because he had been less than truthful about the injuries he suffered in a December 2006 fight and a February 2008 vehicle rollover accident, the WCJ found that none of Weaver’s previous medical records indicated that he had ever had any cervical problems, although he may have had some degenerative disc disease that pre-existed the subject accident. On the other hand, the medical records reflected that Weaver had consistently complained of neck pain since the August 13, 2008 accident. Moreover, the WCJ specifically stated he was giving more weight to the medical records from Drs. Swart, Bell, and Nunley than those of Dr. Mead. Accordingly, the WCJ determined that Weaver “clearly established that his cervical condition is the result of his lift being jerked around, certainly by the fright he occasioned when this huge object was coming his way.”

The WCJ likened this matter to this court’s earlier decision in Rivers v. Bo Ezemack Hauling Contractor, Inc., 09-991 (La.App. 3 Cir. 3/10/10), 32 So.3d 1091, writ denied, 10-807 (La.6/4/10), 38 So.3d 309, wherein we reiterated the principle 112that a worker’s pre-existing condition does not bar his recovery because the employer takes its employee as it finds him.

The WCJ addressed and soundly rejected the arguments that the defendants make on appeal. We have carefully reviewed the record in its entirety, and we are convinced that the WCJ did not err in finding that Weaver proved that he was injured in the August 13, 2008 accident and that he is entitled to receive workers’ compensation benefits. Therefore, we find that the defendants’ first assignment of error lacks merit.

Penalties and Attorney Fees

The defendants contend that the WCJ erred in awarding Weaver penalties and attorney fees because they had articu-lable and objective reasons for denying his claim. On the other hand, Weaver requests that this court not only affirm the WCJ’s award of penalties and attorney fees but also amend the judgment to assess multiple penalties against the defendants. In addition, Weaver requests that this court award him additional attorney fees for work done on this appeal.

The statute governing payment of benefits, La.R.S. 23:1201, also provides for penalties and attorney fees under certain circumstances. The applicable provisions regarding payment of benefits state:

B. The first installment of compensation payable for temporary total disability, permanent total disability, or death shall become due on the fourteenth day after the employer or insurer has knowledge of the injury or death, on which date all such compensation then due shall be paid.
E. Medical benefits payable under this Chapter shall be paid within sixty days after the employer or insurer receives written notice thereof.

l,sLa.R.S. 23:1201(B) and (E).

Furthermore, La.R.S. 23:1201(F) provides, in pertinent part:

Failure to provide payment in accordance with this Section ... shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars ....
(2) This 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.

A claim for benefits has been reasonably controverted when the employer “engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed.” Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La.12/1/98), 721 So.2d 885, 890. The decision to impose penalties and attorney fees is essentially a factual issue 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 WCJ concluded that Southern “was arbitrary and capricious and at least unreasonable in the denial of Mr. Weaver’s claim.” In his oral reasons for judgment, the WCJ examined the evidence of the defendants’ actions and reasoned:

They had before them the knowledge, the factual knowledge that on August 13th of 2008, this heavy precipitator fell and fell a great distance, they knew Mr. Weaver was working around the precip-itator and he was in a man lift. Mr. Tillman confirmed that shortly thereafter on that day | Mor the very next day, he was informed by Mr. Weaver that the object struck the man lift. The[y] inspected the man lift, they found the scratch on the man lift, they had all the medical — they had the past medical records from the rollover accident and Mr. Weaver being punched in the face, and none of those medical records ever disclosed to the employer that Mr. Weaver ever experienced any kind of cervical problems as a result of those incidents having taken place. They had no medical information to dispute Mr. Weaver’s claim that his neck and cervical problems were related to the incident of [August] 13th of 2008. At best, they gave this Court mere speculation and conjecture that, “Well, he sneezed, perhaps, and he had a degenerative disc problem already, so why couldn’t a rollover and being punched in the face cause his ... cervical problems?” Well, the reason they didn’t cause him cervical problems was because he didn’t complain of them and they weren’t found in the medical records.

Thus, after characterizing the defendants’ arguments as “mere speculation and conjecture,” the WCJ awarded Weaver a $2,000 penalty for the defendants’ failure to begin paying him indemnity benefits and a $2,000 penalty for the defendants’ failure to provide him with medical benefits, and further awarded attorney fees of $7,500. After carefully examining the WCJ’s reasons and for reasons fully expressed in this opinion, we find no manifest error in the WCJ’s award of penalties and attorney fees.

In his answer to this appeal, Weaver argues that he is entitled to receive additional penalties for the defendants’ failure to pre-authorize an initial consultation with Weaver’s choice of orthopedist, Dr. Nun-ley, and to timely pay for medical testing that the defendants pre-authorized when they, along with Weaver, jointly sought a trial continuance of this matter. The defendants fail to address Weaver’s argument to this court. Finding merit to Weaver’s requests, we award him an additional penalty of $2,000 for the failure to authorize his initial treatment with the 11 .^orthopedist, Dr. Nunley, and a separate penalty of $2,000 for the failure to timely pay for diagnostic studies the defendants pre-authorized on July 2, 2009, in conjunction with an unopposed motion to continue trial.

Finally, Weaver has answered the appeal, seeking additional attorney fees for work performed on the appellate level. After considering Weaver’s request, we award Weaver $8,500 for work done on appeal.

DECREE

For the foregoing reasons, the judgment of the WCJ is affirmed. We award two additional penalties of $2,000 each and an additional $3,500 in attorney fees for work done on appeal. All costs of this appeal are assessed to the defendants, Southern Erectors, Inc. of Florida and The Hartford Insurance Company.

AMENDED, AFFIRMED AS AMENDED, AND RENDERED.

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

      . Weaver amended his disputed claim on December 4, 2009, to include The Hartford as a party defendant.

      . The defendants twice amended their answer, first, to plead the affirmative defense of intoxication pursuant to La.R.S. 23:1081, and later, to affirmatively plead that Weaver had "advanced this claim with fraudulent intent and misrepresentations for the purpose of obtaining benefits” thereby subjecting him to the penalties of La.R.S. 23:1208. Nevertheless, the defendants neither presented evidence nor argument in support of these affirmative defenses at trial, and the WCJ denied the defenses in the judgment now being appealed. The defendants advance no argument on these issues in this court. Accordingly, these issues are not now before us.

      . Although the term "precipitator” was not defined at the trial of this matter, dictionary.com defines an “electrostatic precip-itator" as "a device for removing small particles, as of smoke, dust, or oil, from a gas, as air, by passing the gas first through an electrically charged screen that gives a charge to the particles, then between two charged plates where the particles are attracted to one surface.”

      . Weaver explained that the man lift had some shiny scrapes that he assumed were freshly made because they were not rusted.

      . The WCJ’s award of penalties is vague. It appears that these two penalties were for the defendants' failure to timely commence indemnity payments, a requirement of La.R.S. 23:1201(B), and to timely pay for the initial medical bills, a requirement of La.R.S. 23:1201(E).