author: KUHN, J.

text:
    Malinda HOLDEN v. CITY OF NEW ORLEANS (NOPD).
    No. 2011 CA 2075.
    Court of Appeal of Louisiana, First Circuit.
    June 8, 2012.
    Joseph G. Albe, New Orleans, LA, for Claimant-Appellant Malinda Holden.
    Craig B. Mitchell, Kiana M. Mitchell, Michael S. Rodriguez, New Orleans, LA, for Defendant-Appellee City of New Orleans (NOPD).
    Before WHIPPLE, KUHN, and GUIDRY, JJ.
   KUHN, J.

| {.Claimant-appellant, Malinda Holden, appeals OWC’s actions of granting a partial motion for summary judgment in favor of her employer, the City of New Orleans, New Orleans Police Department (the City), and dismissing her claims for additional indemnity benefits as a result of an injury she sustained in the course and scope of her employment. We affirm.

BACKGROUND

It is undisputed that while she was on duty as a police officer for the City, Holden sustained an injury as she placed a fifteen-pound, duty-filled back pack on the passenger’s seat of her vehicular unit. Holden’s doctor issued light-duty restrictions for Holden’s return to work commencing on May 4, 2010. The City assigned her to light-duty work, and when Holden’s doctor determined that she could no longer work in any capacity, the City issued her temporary total disability (TTD) benefits.

The parties entered into a consent judgment wherein they resolved that Holden’s status as of August 17, 2010 was TTD; the City would continue to pay Holden $577.00 per week in TTD benefits until modified by OWC; and the City did not owe Holden any penalties or attorney’s fees for TTD benefits as it had paid Holden weekly TTD benefits of $577.00 since August 17, 2010.

The sole issue in this appeal is whether Holden is entitled to supplemental earnings benefits (SEB) from her employer for the time that she was under light-duty restrictions. The City filed a motion for summary judgment, and on September 1, 2011, OWC signed a judgment determining that Holden was not entitled to SEB for the period between April 23, 2010 and August 17, 2010 (the |sfour-month period). A motion for reconsideration was subsequently denied and this appeal followed.

DISCUSSION

On appeal, Holden contends that OWC erred in concluding that she was not entitled to SEB during the four-month period, urging that in calculating her average weekly wages for purposes of SEB, paid detail wages she would have earned but for her injury should have been included. Referring to “paid details” as “moonlighting jobs,” and admitting that the City paid her unearned wages during the four-month period, Holden urges that the City failed to include paid detail wages in calculating her total average weekly wages for purposes of SEB benefits while she worked with light-duty restrictions. Thus, she urges, the trial court erred in granting summary judgment and denying her claim for SEB from the City.

“Wages” means average weekly wage at the time of the accident. To determine an employee’s average weekly wage if the employee is paid on an hourly basis and the employee is employed for forty hours or more, her hourly wage rate is multiplied by the average actual hours worked in the four full weeks | ¿preceding the date of the accident, or forty hours, whichever is greater. See La. R.S. 23:1021(12)(a)(i). An injured employee is entitled to SEB under La. R.S. 23:1221(3) when her injury results in her inability to earn wages equal to ninety percent or more of the wages she was earning at the time of the injury. The injured employee bears the burden of proving that the injury resulted in her inability to earn that amount in any employment. Madden v. Lemle and Kelleher, LLP, 2008-1691 (La.App. 1st Cir.2/13/09), 6 So.3d 247, 250.

As the party who did not bear the burden of proof at trial on the matter, in support of entitlement to summary judgment, the City had to point out an absence of factual support for one or more elements essential to Holden’s claim. See La. C.C.P. art. 966 C(2).

Through its documentary evidence, the City established that between April 23 and August 17, Holden worked approximately seventy-three light-duty days at her regular hourly wage. According to a payment history report, attached to the affidavit of Wendie McKenzie, a claims adjuster for the third-party administrator of the City’s workers’ compensation claims, Holden was not paid any TTD benefits for the periods of May 4-June 14; June 16-21; June 25-28; July 2-13; July 27-August 3; and August 11-16, 2010. Insofar as the remaining dates during that four-month period that Holden did not work, McKenzie attested, and the attached payment history report showed, that Holden was paid TTD benefits. Copies of written excuses from Holden’s doctor were also attached to McKenzie’s affidavit. McKenzie additionally attested that, based on her knowledge, Holden “was paid her pre-injury hourly wage while working limited duty with [the City].” The City, | ¿therefore, established that for those days that she was not medically excused from work, Holden earned 100% of her hourly wages with the City.

Attached to the City’s answer was Holden’s wage statement for the four weeks immediately prior to the accident. That statement shows she earned $3,462.21 during that time. This yields a weekly wage of $865.55. Since claimant was paid her pre-injury salary when she worked light duty during the four-month period, obviously she did not earn less than 90% of her pre-injury wages with the City. And it is undisputed that while she was medically excused from working light duty, the City paid her the TTD rate of $577.00, which is approximately sixty-six and two-thirds her weekly wage of $865.55. See La. R.S. 23:1221(1). Therefore, the City established that it had paid Holden all the wages to which she was entitled from her job as a police officer and, therefore, she was not entitled to any additional indemnity benefits from the City for her wages from paid details.

In response to the City’s showing, at the hearing on the City’s motion for summary judgment, Holden failed to offer any evidence of paid detail wages. Although at the hearing for reconsideration of OWC’s denial of SEB, Holden proffered her 2009 personal income tax statement and W-2 and/or earnings summary statements from employers, SMG, Audubon Nature Institute, Omni Royal Orleans, and Louisiana Museum Foundation, these documents contained no affidavit attestations or other certifications. OWC refused to permit Holden to ^testify about her paid detail wages and, on appeal, Holden does not complain. See Gilmore v. Wickes Lumber, 2004-2769 (La.App. 1st Cir.2/17/06), 928 So.2d 668, 673 (it is inappropriate to take testimony in open court at an OWC hearing of a motion for summary judgment).

At the reconsideration hearing, the OWC judge stated:

[T]here is a point at which you come to [OWC] and you say ... this is not ripe for summary judgment. I have some information about details that I can get and ... I’ve not been able to get it. It’s not due to lack of trying.
The point is we went forward with all that. [The City] put on [its] affidavits ... put in the payroll records ... put in the comp records but I had nothing. I had nothing on ... Holden’s end to say ... there’s a document, or if it’s not here, there’s a document out there, I’m going to get it.

We find no abuse of discretion by OWC in denying admission of the documentary evidence, see Crockett v. Therral Story Well Service, Inc., 45,716 (La.App.2d Cir.1/5/11), 57 So.3d 355, 360, unit not considered, 2011-0263 (La.3/25/11), 61 So.3d 650, since the record shows that: the trial on the merits was scheduled to be heard three days later; Holden twice opposed the City’s motions for continuance of the trial on the merits; and although Holden sought a continuance of the hearing on the motion for reconsideration, her sole expressed basis for the request was because of a scheduling conflict. See Crocker v. Levy, 615 So.2d 918, 920 (La.App. 1st Cir. 1993). Thus, Holden failed to produce factual support sufficient to establish that she will be able to show she was unable to earn ninety percent of her pre-injury wages, i.e., her evidentiary burden of proof at trial, and OWC correctly granted summary judgment.

17Accordingly, OWC correctly granted summary judgment, denying SEB for the four-month period and resulting penalties and attorney’s fees.

IsDECREE

For these reasons, OWC’s judgment of September 1, 2011 is affirmed. Appeal costs are assessed against Malinda Holden.

AFFIRMED.

      . The September 1, 2011 judgment was an amendment of a judgment signed on June 21, 2011, that had incorrectly referred to the dates for which SEB was not allowed as “April 23, 2011 and August 17, 2011.” At the time of issuance of the September 1, 2011 judgment, the parties had not entered into the consent judgment resolving all remaining issues; thus, on September 1, 2011, when OWC modified its earlier ruling, it was not a modification of a final judgment.

      . The motion for reconsideration, entitled "CLAIMANT’S 1st MOTION IN LIMINE IN SUPPORT FOR RECONSIDERATION AND/OR MODIFICATION OF GRANTING SUMMARY JUDGMENTS AND ALLOWING NEW EVIDENCE BE INTRODUCED AT TRIAL REGARDING CLAIMANT’S ENTITLEMENT TO SEB,” was filed after the June 21, 2011 judgment and prior to OWC’s modification on September 1, 2011, but was not taken up until September 12, 2011, at which time the parties entered into the consent judgment in open court and signed by OWC on September 15, 2011. Holden's devolutive appeal was granted on September 15, 2011, at which time the sole remaining issue was Holden's entitlement to SEB. In the consent judgment, the parties expressly reserved to Holden the right to pursue her appeal of the SEB issue. Because all other issues have been resolved, the September 1, 2011 judgment is a final judgment properly before us in this appeal. See La. C.C.P. arts. 2083 and 2087.

      . Dividing claimant’s weekly wage by her hourly rate of $17.9456, set forth in the wage statement, Holden worked approximately 48 hours a week. Thus, she was not a part-time employee as defined in La. R.S. 23:1021(11) such that the provisions regarding successive employment under La. R.S. 23:1021(12)(a)(iv)(bb) are applicable.

      . Sixty-six and two-thirds percent of $865.55 yields $577.03.

      . We note without holding that La. R.S. 23:1031 evidences the intent of the legislature to make an employer’s workers’ compensation liability to an injured employee depend only upon the wages which that ■ employer pays to the employee and not upon the total income of the employee. It is, therefore, evident that the only time wages from other employers are included in computing the employer's workers' compensation liability is when the employers are joint employers of the same employee. Guillory v. Interstate Hotels & Resorts, 2005-650 (La.App. 3d Cir. 12/30/05), 918 So.2d 550, 551 (citing Loft v. Louisiana Power & Light Co., 377 So.2d 1277, 1280-81 (La.App. 3d Cir. 1979), writ denied, 381 So.2d 1232 (La. 1980)); see also Gray v. Church's Fried Chicken, Inc., 504 So.2d 979, 981 (La.App. 1st Cir. 1987) (citing Lott, 377 So.2d at 1280-81 and relying on La. R.S. 23:1031, this court concluded an injured employee’s average weekly wage depended only upon the wages that the part-time employer at time of injury paid to employee, and not other part-time wages earned by employee, where the employer at time of injury and other part-time employer were not joint employers); but see La. R.S. 23:1021(12)(a)(iv)(bb) and Leger v. Calcasieu Parish School Bd„ 2009-1261 (La.App. 3d Cir.4/7/10), 34 So.3d 1042, 1044-45, writ denied, 2010-1005 (La.6/25/10), 38 So.3d 348 (ambiguous statutory provision in La. R.S. 23:1021(12)(a)(iv)(bb), which allowed two interpretations of the term "that employment” with regard to whether or not part-time employment should be included in calculating a workers’ compensation claimant’s award for benefits for an injury sustained in the course and scope of her fulltime employment, was required to be interpreted liberally in favor of claimant, and thus, claimant's wages from part-time job had to be included with her wages from her fulltime employment in determining the rate to calculate benefits arising from injury sustained in the course and scope of her fulltime employment). We, therefore, question Holden’s reliance on Jones v. Orleans Parish School Bd., 370 So.2d 677 (La.App. 4th Cir. 1979). As noted by the Guillory court:
      In [Jones], our learned brethren of the Fourth Circuit appear to hold that in calculating the earning differential of an employee for purposes of fixing the extent of recovery for partial disability under [La.] R.S. 23:1221(3), one must use the sum of the salaries earned by such partially disabled employee from all employment at time of injury. Although the court in Jones was concerned with the calculation of benefits due under a different section of the [Workers'] Compensation Act, we acknowledge that the holding in Jones does lend support to the position which [claimant] advocates. We respectfully disagree with the holding in Jones ... and decline to follow [it]. In our view Louisiana’s [workers'] compensation law clearly and explicitly limits the employer’s liability for ... compensation benefits to a statutorily fixed percentage of the "average weekly wage” paid by the responsible employer to the employee (subject to minimum and maximum benefits). In our opinion, although our law, as presently constituted, may in certain isolated cases, such as the instant case, not fully provide for loss of earning capacity, to fix an employer’s liability for payment of benefits on all income of the employee, regardless of the source, would be patently unfair to the employer responsible for the payment of benefits.
      918 So.2d at 551.
      Since we have concluded that Holden failed to tender the requisite evidence to squarely bring the issue of whether the City was liable for SEB as a result of average weekly wages calculated on wages earned from successive employment, the issue is not properly before us at this time.


source: Caselaw Access Project

author: GUIDRY, J.

license: Public Domain

text:
    Melvin QUAVE v. AIRTROL, INC. and Transportation Insurance Company.
    No. 2011 CA 1182.
    Court of Appeal of Louisiana, First Circuit.
    June 8, 2012.

      Ted Williams, Baton Rouge, LA, for Plaintiff/Appellee Melvin Quave.
    Kirk L. Landry, Virginia J. McLin, Baton Rouge, LA, for Defendants/Appellants Airtrol, Inc. and Transportation Insurance Company.
    Before WHIPPLE, KUHN, and GUIDRY, JJ.
   GUIDRY, J.

| aIn this workers’ compensation proceeding, an employer and its insurer appeal a judgment of the Office of Workers’ Compensation wherein the workers’ compensation judge (WCJ) found that the claimant did not violate La. R.S. 23:1208, and therefore found the employer liable for continuing benefits plus penalties and attorney fees for discontinuing the payment of workers’ compensation benefits based on the alleged violation.

FACTS AND PROCEDURAL HISTORY

The claimant, Melvin Quave, was formerly employed as a pipefitter with Air-trol, Inc. On September 10, 2002, the claimant injured his back and neck when a large pipe he was working on came loose. Immediately following the accident, the claimant continued working for Airtrol, Inc. performing his regular duties, but he was eventually assigned to light-duty tasks once it was determined by his medical providers that the pipefitter duties were aggravating his injury. In June 2003, Air-trol, Inc. terminated the claimant’s employment, and he began to receive workers’ compensation indemnity benefits in addition to medical benefits until October 10, 2006, when all benefits were terminated.

On July 13, 2007, the claimant filed a form 1008 “Disputed Claim for Compensation,” seeking reinstatement of all workers’ compensation benefits, plus penalties and attorney fees for the reduction and eventual termination of the workers’ compensation benefits provided to him. Airtrol, Inc. and Transportation Insurance Company, as Airtrol, Inc.’s workers’ compensation insurer, were named as defendants in the claim. Thé defendants opposed the claimant’s claim, asserting that the benefits provided were properly terminated due to the claimant’s violation of La. R.S. 23:1208. Following a hearing, the WCJ found that the claimant had not violated Section 1208, and consequently, she ordered the reinstatement of the claimant’s workers’ compensation benefits. The WCJ further awarded the claimant |s$2,000.00 as a penalty for the defendants’ termination of medical benefits, $2,000.00 as a penalty for the defendants’ termination of indemnity benefits, and $10,000.00 in attorney fees. It is from this judgment that the defendants now appeal. Claimant has answered the appeal seeking additional attorney fees for work performed in responding to the appeal.

ASSIGNMENTS OF ERROR

1. The [WCJ] committed legal error by awarding temporary total disability benefits.
2. The [WCJ] committed legal error by awarding any workers, compensation benefits to Claimant when he failed to meet his burden of proof.
3. The [WCJ] committed manifest error by denying the defendants’ § 1208 defense.
4. The [WCJ] committed legal error by awarding penalties and attorneys fees.

DISCUSSION

Total disability, whether permanent or temporary, means the inability to engage in any gainful occupation, whether or not it is the same or one similar to that in which the employee was customarily engaged when injured. La. R.S. 23:1221(l)(a) and (2)(a); Joseph v. J.E. Merit Constructorsk, Inc., 01-1666, p. 8 (La.App. 1st Cir.6/21/02), 822 So.2d 72, 77, writ denied, 02-2295 (La.4/4/03), 840 So.2d 1201. When the employee is not engaged in any employment or self-employment, in order to be entitled to temporary, total disability benefits, the employee must prove by dear and convincing evidence that he is physically unable to engage in any employment or self-employment, including employment while working in any pain. La. R.S. 23:1221(l)(c). The finding of disability within the framework of the workers’ compensation law is a legal rather than a purely medical determination. Therefore, the question of disability must be determined by reference to the totality of the evidence, including both lay and medical testimony. Ultimately the question of disability is a question of fact, which cannot be reversed |4in the absence of manifest error. Rilcer v. Popeye’s Fried Chicken, 09-0527, p. 6 (La.App. 1st Cir.10/23/09), 29 So.3d 516, 521, writ denied, 09-2776 (La.2/26/10), 28 So.3d 279.

Based on the claimant’s own testimony, it is evident that the WCJ erred in awarding the claimant temporary, total disability benefits. At trial, the claimant not only admitted that he can work, but disclosed that since the termination of his workers’ compensation indemnity benefits, he has engaged in various part-time and temporary employments to help make ends meet. Thus, as the claimant testified that he was engaged in some “employment or self-employment,” he was clearly not entitled to the temporary, total disability benefits, and the WCJ clearly erred in granting the claimant an award of such benefits. See Polkey v. handworks, Inc., 10-0718, p. 9 (La.App. 1st Cir.10/29/10), 68 So.3d 540, 549.

Nevertheless, we reject the defendants’ contention that the claimant has not proven his entitlement to supplemental earnings benefits, pursuant to La. R.S. 23:1221(3). The purpose of supplemental earnings benefits is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident. Poissenot v. St. Bernard Parish Sheriffs Office, 09-2793, p. 4 (La.1/9/11), 56 So.3d 170, 174. An employee is entitled to receive supplemental earnings benefits if he sustains a work-related injury that results in his inability to earn ninety percent or more of his average pre-injury wage. Hayes v. Louisiana State Penitentiary, 06-0553, p. 12 (La.App. 1st Cir.8/15/07), 970 So.2d 547, 558, writ denied, 07-2258 (La.1/25/08), 973 So.2d 758. In order to recover supplemental earnings benefits, the claimant must first prove by a preponderance of the evidence an inability to earn wages equal to ninety percent or more of the wages he earned before the accident. Joseph, 01-1666 at p. 8, 822 So.2d at 77.

In determining if an injured employee has made out a prima facie case of entitlement to supplemental earnings benefits, the WCJ may and should take into | .^account all those factors which might bear on an employee’s ability to earn a wage. Poissenot, 09-2793 at p. 6, 56 So.3d at 174. This analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that workers’ compensation is to be liberally construed in favor of coverage. Polkey, 10-0718 at p. 10, 68 So.3d at 549. In determining whether an employee has met his initial burden of proving entitlement to supplemental earnings benefits, a reviewing court must examine all evidence that bears upon the employee’s inability to earn ninety percent or more of his pre-injury wages. See Poissenot, 09-2793 at p. 6, 56 So.3d at 174.

It is undisputed that the claimant cannot return to his pre-injury employment as a pipefitter. One of the claimant’s treating physicians, Dr. Thad S. Broussard, determined that the claimant could no longer perform pipefitting duties because the work aggravated his injury. As a result, Dr. Broussard requested that a functional capacity exam be performed on the claimant to determine if he needed to be retrained to perform some other job within the confines of the limitations revealed by the functional capacity exam. Following the functional capacity exam, Dr. Brous-sard found the following:

[Claimant] gave a very reliable effort but ... he has significant restrictions, which I think most likely would preclude him from continuing to work at his current job. He would have to have considerable restrictions and have considerable aid if he is to try to continue to work as a [pipefitter] and certainly should not be lifting over 50 lbs. I think, at this point, it is reasonable for a vocational rehabilitation [counselor] to meet with [claimant] and see if there is any way that he could be placed into some other position or trained for some other position or some modifications made at his current job, which I am not sure if that is possible or not.

As a result of the functional capacity exam, a vocational rehabilitation counselor was assigned to work with the claimant from June to October 2004. The counselor met with the claimant once to gather information regarding his educational, vocational, and medical backgrounds. Thereafter, the vocational | ^rehabilitation counselor sent letters to the claimant identifying potential job opportunities and advising the claimant to register with “Job Service” to research job opening within his geographical area, to take free computer training at the Christa McAuliffe School in Baton Rouge for assistance in learning the keyboard and to build typing speed, and to visit his local library to further research additional job leads.

At trial, the claimant stated that he contacted the employers for the jobs identified by the vocational rehabilitation counselor and learned that most would not hire him because he would be unable to pass the drug test required for the jobs due to the prescription medications that he took. Claimant also testified that while he could turn on a computer and go to websites such as Yahoo, Google and Craigslist to find things, he said he does not have any significant computer skills. He testified that he does not have an email address, does not know how to use word or data processing programs, and has limited typing skills. Thus, the claimant testified that after contacting the employers, it was revealed that he did not qualify for the jobs due to his use of prescription medications or because he lacked necessary skills, certifications, or work experience.

Based on our review of the evidence in the record before us, including the claimant’s testimony at trial, his medical records and the vocational rehabilitation records introduced by the defendants, we find that the claimant met his burden of showing by a preponderance of the evidence that he is unable to earn ninety percent of his pre-injury wages. Notably, it was stipulated at trial that the ^claimant’s pre-injury wages were $802.80 a week, which in her report, the vocational rehabilitation counselor found to be a wage of $30.00 per hour. Yet, all of the jobs identified by the vocational rehabilitation counselor ranged from $5.50 to $9.00 an hour, which amount is far less than ninety percent of the claimant’s pre-injury wages.

The claimant also testified regarding employment he had engaged in after the termination of his workers’ compensation benefits. The record is unclear as to the exact amount of income the claimant has succeeded in earning since the termination of his benefits, but we find his testimony sufficient to conclude that the claimant has not earned ninety percent or more of his pre-injury wages; thus, he is entitled to an award of supplemental earnings benefits from October 10, 2006, to the present. However, because the defendants are entitled to offset the amount of supplemental earnings benefits paid to the claimant by the amount of income he earned, we will remand this matter to the Office of Workers’ Compensation to determine the amount of offset the defendants are entitled to receive due to the income earned by the claimant since the termination of his workers’ compensation benefits. See Guillory v. Allied Waste Industries, Inc., 10-159, p. 8 (La.App. Sd Cir.10/6/10), 47 So.3d 23, 29.

The defendants further assert that the evidence establishes that the claimant violated La. R.S. 23:1208 and that the WCJ erred in finding otherwise. Section 1208 provides in pertinent part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by [a] workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

The requirements for forfeiture of benefits under Section 1208 are that: (1) there is a false statement or representation; (2) it is willfully made; and (3) it is made for the purpose of obtaining or defeating any benefit or payment. Jim Wal ter Homes, Inc. v. Prine, 01-0116, p. 8 (La.App. 1st Cir.2/15/02), 808 So.2d 818, 824. The relationship between the false statement and the pending claim will be probative in determining whether the statement was made willfully for the purpose of obtaining benefits. Newman v. Richard Price Construction, 02-0995, p. 5 (La.App. 1st Cir.8/8/03), 859 So.2d 136, 141. The issue of whether an employee forfeited workers’ compensation benefits is one of fact, which is not to be reversed on appeal, absent manifest error. Angelo Iafrate Construction Co. v. Herring, 05-1461, pp. 4-5 (La.App. 1st Cir.9/1/06), 943 So.2d 487, 490, writ denied, 06-2365 (La.12/8/06), 943 So.2d 1097.

In the present case, the defendants terminated the payment of workers’ compensation benefits to the claimant based on certain responses he gave regarding his physical abilities in a statement recorded on April 29, 2004. The defendants allege the claimant’s statements were revealed to be false when compared to surveillance video of the claimant recorded a month prior to the statement. Specifically, the defendants assert that the following responses were false when compared to the surveillance video showing the claimant engaging in carpentry work and carrying items of construction material and furniture:

| fl[Insurance Agent]: So right now you’re not working at all?
[Claimant]: No_
[Insurance Agent]: Okay, you said you hadn’t looked for work after [the] lay oft?
[Claimant]: No
[Insurance Agent]: Okay, you haven’t worked since then?
[Claimant]: No other than around the yard, around the house, and they don’t pay.
[Insurance Agent]: What other, what other things we haven’t covered, that you were able to do before you got hurt that you don’t do now.
[Claimant]: Well, I did play basketball with the kids, I could play football with them, baseball, have a normal sex life, let me see, I used to do a lot of side line work, like doing carpenter work, building stuff, you know, making extra money on the side doing carpenter work, and all, I can’t do none of that no more. I used to cut my yard, my mother-in-law’s yard, and my momma’s yard all the time, and they both had to hire people to come cut their yards for them now. Cause I can’t do it.
[Insurance Agent]: You haven’t been able to do any of this, sports ...
[Claimant]: No.
[Insurance Agent]: No other carpentry work ...
[Claimant]: I could move the world if you found a place to hook it up for me, but now I can’t do nothing. There wasn’t nothing I would back down from....

As previously stated, the surveillance video of the claimant showed him carrying various items and performing carpentry work. When questioned at trial regarding the video and his recorded statement, the claimant gave the following explanation:

lin[W]hen I say carpentry work, you’re getting — it’s like a job you’re getting paid for. That’s what I was under the impression it was — thought I was doing it to, you know, make side money for like sideline work. But at the time, I was not doing it. That was just I went over there for 30, 45 minutes and showed a guy how to do something and then I left. I wasn’t really working. I mean, my description of work maybe— maybe I misunderstood him, what he meant. But as far as work, 1 was thinking of work I had done before, like building decks and stuff like that.
Q You acknowledged for this Court that what you were doing on that videotape was, in feet, carpentry work?
A Yes, sir. Yes, sir.

The WCJ factually determined that the claimant did not violate La. R.S. 23:1208. When read in context, the claimant’s interpretation of the insurance agent’s question as referring to his engaging in carpentry work for money is reasonable. The claimant testified at trial that he was not paid for the work he was shown performing in the surveillance video and that he was simply showing “a guy how to do something.” After considering the evidence presented, we cannot say that the WCJ manifestly erred in finding the claimant’s explanation to be credible. See Frederick v. Port Aggregates, Inc., 07-552, pp. 7-8 (La.App. 3d Cir.10/31/07), 968 So.2d 1169, 1174.

Moreover, while the claimant did testify at trial that he began performing carpentry and other work for pay after the defendants terminated payment of his workers’ compensation benefits in 2006, we still decline to find that the WCJ erred in her finding. The claimant’s statement was recorded in 2004 and a plain reading of the questions posed to the claimant for the recorded statement reveals that he was questioned specifically about his activities and abilities at the time statement was recorded. As such, we do not find his subsequent actions to be sufficient grounds for rejecting the findings of the WCJ on this issue.

However, we do find that the WCJ abused her discretion in assessing penalties and attorney fees pursuant to La. R.S. 23:1201(F) against the defendants h fin this case. Statutory provisions permitting the assessment of penalties and attorney fees for nonpayment of workers’ compensation benefits are penal in nature and must be strictly construed. Penalties should not be imposed in doubtful cases, where a bona fide dispute exists as to the claimant’s entitlement to benefits, and the mere fact that an employer loses a disputed claim is not determinative. J.E. Merit Constrictors Inc. v. Hickman, 00-0943, p. 5 (La.1/17/01), 776 So.2d 435, 438. In Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La.12/1/98), 721 So.2d 885, 890, the Louisiana Supreme Court defined “reasonably controverted” as follows:

The phrase “reasonably controverted,” on the other hand, mandates a different standard. In general, one can surmise from the plain meaning of the words making up the phrase “reasonably controvert” that in order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base his denial of benefits. Thus, to determine whether the claimant’s right has been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under La. R.S. 23:1201, a court must ascertain whether the employer or his insurer 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.

In this case, the defendants terminated payment of workers’ compensation benefits to the claimant based on what they perceived as false statements made in his recorded statement when viewed in light of surveillance video of the claimant. A viewing of the surveillance video makes some of the claimant’s responses in his recorded statement questionable; however, as previously stated, we cannot say that the WCJ committed manifest error in choosing to credit the claimant’s explanation of his comments to find that the claimant did not make a willful misrepresentation in violation of La. R.S. 23:1208. Nevertheless, the evidence clearly was sufficient to reasonably controvert the claimant’s claim to continued benefits, and as such, we find that the WCJ erred assessing the defendants with penalties and attorney fees for the termination of the claimant’s benefits.

| ^Finally, we address the answer to this appeal filed by the claimant seeking additional attorney fees for responding to this appeal. Based on our resolution of this appeal, we deny the relief requested.

CONCLUSION

Accordingly, we find that the WCJ legally erred in awarding the claimant temporary, total disability benefits and reverse that award. We find that the claimant is entitled to an award of supplemental earnings benefits and remand this matter to the Office of Workers’ Compensation to calculate the amount of supplemental earnings benefits to paid to the claimant after determining the amount of offset to be received by the defendants in paying such benefits based on income received by the claimant from self-employment since the termination of his workers’ compensation benefits. We affirm the WCJ’s finding that the claimant did not violate La. R.S. 23:1208, but as we find that the WCJ abused her discretion in failing to find the defendants reasonably controverted the claimant’s entitlement to workers’ compensation benefits, we reverse the WCJ’s award of penalties and attorney fees based on the defendants’ termination of the claimant’s workers’ compensation benefits. We also deny the relief requested by the claimant in his answer to this appeal. In all other respects, the judgment is affirmed.

AFFIRMED IN PART, REVERSED IN PART, RENDERED IN PART, AND REMANDED WITH INSTRUCTIONS; ANSWER TO APPEAL DENIED.

WHIPPLE and KUHN, JJ., concur.

      . Dr. Broussard’s medical records reveal that while the claimant was still employed by Air-trol, Inc., the claimant was advised by Dr. Broussard that he could not take his medication while at work or while operating any type of equipment. Cf. Cole v. Langston Com

        panies, Inc., 98-1202, pp. 10-12 (La.App. 3d Cir.2/3/99), 736 So.2d 896, 901-02. Also, two of the jobs identified by the vocational rehabilitation counselor were for security guard, both of which required certification from the State of Louisiana; however, review of the job descriptions placed into evidence by the defendants reveals that both jobs also stated that training would be provided to obtain the required Louisiana certification. Nevertheless, both jobs also required drug testing.

      . The claimant testified that he did carpentry work for a man who owned rent houses at the rate of $15.00 per hour for four to five hours a day, three or four days a week; that he cleaned FEMA trailers at a rate of $100.00 per trailer, of which he received half of the payment or $50.00 per trailer, averaging five or six trailers a week; that he performed duct work and welding work at fast food restaurants at a rate of $25.00 per hour for six to eight hours a day, three to four days a week, with each of those jobs lasting for a period of five months or less. He also testified that at the time of trial that "I got a couple yards I keep up.... I got three little yards I do.”

      . Although we find the WCJ legally erred in holding that the claimant is entitled to temporary, total disability benefits, such error did not interdict her findings regarding a violation of La. R.S. 23:1208; therefore, de novo review of this issue is not warranted. See C.R.W. v. State, Department of Social Services, 05-1044, p. 11 (La.App. 1st Cir.9/1/06), 943 So.2d 471, 482, writ denied, 06-2386 (La. 12/21/06), 944 So.2d 1289.


author: McClendon, j.

text:
    Debra A. LEWIS v. Jodi MORGAN, Tara Roberts, Allen Larcena, M.D., Maria D. Mahoney, M.D., Gulf States Health Services, Inc., d/b/a Gulf States Long Term Acute Care of Washington/St. Tammany and Health Services Group of Louisiana, LLC, d/b/a Gulf States Long Term Acute Care of Washington/St. Tammany.
    No. 2011 CA 2182.
    Court of Appeal of Louisiana, First Circuit.
    June 8, 2012.

      Dan A. Robin, Jr., Chalmette, LA, for Plaintiff/Appellant, Debra A. Lewis.
    Leslie A. Lanusse, Shelly F. Spansel, Lauren L. Tafaro, New Orleans, LA, for Defendants/Appellees, Jodi Morgan, Tara Roberts, Allan Larcena, M.D., Maria D. Mahoney, M.D., Gulf States Health Services, Inc., and Health Services Group of Louisiana, LLC, d/b/a Gulf States Long Term Acute Care of Washington/St. Tammany.
    Before PETTIGREW, McCLENDON, and WELCH, JJ.
   McClendon, j.

| ¡¡The plaintiff appeals from a grant of summary judgment that dismissed her suit for damages, which followed the suspension of her license as a registered nurse. We affirm.

FACTUAL AND PROCEDURAL HISTORY

In January 2007, Debra A. Lewis was working as a registered nurse at the Gulf States Long Term Acute Care (Gulf States) facility in Slidell. Subsequent to an expression of concern by a physician regarding requests for narcotic drug medication for certain patients by Ms. Lewis, Jodi Morgan, the director of nursing, determined that there were other questionable incidents where Ms. Lewis either requested or administered pain medication. Thereafter, a complaint was filed with the Louisiana State Board of Nursing (Board) and Ms. Lewis’s nursing license was suspended during the course of the investigation. The Board conducted a hearing and ultimately determined that Ms. Lewis violated the Nurse Practices Act and the Professional Rules and Regulations applicable to registered nurses. As a result, the Board ordered the continued suspension of Ms. Lewis’s license pending the completion of certain requirements and stipulations. Subsequently, the Board’s decision was affirmed by the district court and this court.

On January 22, 2008, Ms. Lewis filed a petition for damages against Ms. Morgan, Tara Roberts, Dr. Allan Larcena, Dr. Maria D. Mahoney, Gulf States Health Services, Inc., and Health Services Group of Louisiana, L.L.C. d/b/a Gulf States Long Term Acute Care of Washington/St. Tammany (defendants). In her petition, Ms. Lewis alleged that Ms. Morgan fraudulently conspired with Ms. Roberts, an administrator at Gulf States and/or Health Services, to file the damaging complaint against her without first conducting a proper investigation. Ms. Lewis asserted causes of action in negligence, fraud, conspiracy, collusion, and defamation against Ms. Morgan and Ms. Roberts. Ms. Lewis further | contended that Drs. Larcena and Mahoney were the direct supervisors of Ms. Morgan and Ms. Roberts and failed to properly supervise them concerning a proper investigation of Ms. Lewis. Ms. Lewis sought recovery from Drs. Larcena and Mahoney based on negligence, failure to supervise, failure to train, negligent supervision, and failure to implement measures concerning the investigation of an employee.

The defendants answered the petition and raised several exceptions and affirmative defenses, including immunity. Thereafter, on November 4, 2010, the defendants filed a motion for summary judgment, asserting that they were entitled to summary judgment as a matter of law on all of Ms. Lewis’s claims based on statutory immunity under LSA-R.S. 37:931, arising from providing information to the Board. Following a hearing, the trial court granted the motion for summary judgment, and judgment was signed on May 12, 2011, dismissing Ms. Lewis’s claims against the defendants with prejudice. Ms. Lewis appealed.

DISCUSSION

A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact. Gonzales v. Kissner, OS-2154, p. 4 (La.App. 1 Cir. 9/11/09), 24 So.3d 214, 217. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966 B. Summary judgment is favored and is designed to secure the just, speedy, and inexpensive determination of every action. LSA-C.C.P. art. 966 A(2); Aucoin v. Rochel, 08-1180, p. 5 (La.App. 1 Cir. 12/23/08), 5 So.3d 197, 200, writ denied, 09-0122 (La.3/27/09), 5 So.3d 143.

On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter |4that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. LSA-C.C.P. art. 966 C(2); Robles v. ExxonMobile, 02-0854, p. 4 (La.App. 1 Cir. 3/28/03), 844 So.2d 339, 341.

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Boudreaux v. Vankerkhove, 07-2555, p. 5 (La.App. 1 Cir. 8/11/08), 993 So.2d 725, 729-30. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Ernest v. Petroleum Service Corp., 02-2482, p. 3 (La.App. 1 Cir. 11/19/03), 868 So.2d 96, 97, writ denied, 03-3439 (La.2/20/04), 866 So.2d 830.

Pertinent to this matter is LSA-R.S. 37:931 A, which provides:

There shall be no civil liability and no licensee or other individual shall have a cause of action or a claim for damages against any person or institution providing information to the board, its members, officers, designated agents or representatives, employees, where the individual or institution acts without malice and in the reasonable belief that such information is accurate.

Thus, the statute provides qualified immunity to “any person or institution providing information to the board, ... where the individual or institution acts without malice and in the reasonable belief that such information is accurate.”

Ms. Lewis contends, however, that her claims against defendants were not based solely on defendants’ communications to the Boai’d. She asserts that | sher claims also arise from her suspension “based on the blatant misrepresentation of Dr. Larcena’s intent in his phone call to Jodi Morgan.”

The record shows that on January 18, 2007, a “Formal Physician Complaint/Concern” was signed by Ms. Morgan and Ms. Roberts regarding certain actions of Ms. Lewis. The complaint indicated that Dr. Larcena had expressed to Ms. Morgan specific concerns that he had regarding requests for narcotic drug medication made by Ms. Lewis during her work shift the previous evening. Dr. Larcena reported that Ms. Lewis called him on two separate occasions during her shift to request pain medication for two patients. Dr. Larcena expressed his concern because one patient was in a comatose state and the second patient was not on pain medication.

The trial court determined that Ms. Lewis filed this lawsuit based on her suspension, which was the result of complaints made by the defendants to the Board. The court further found that it was Ms. Lewis’s burden to show that the defendants acted with malice and without a reasonable belief that the information in the complaint was correct. The court concluded that Ms. Lewis could not meet her evidentiary burden at trial that defendants acted without good faith, “specifically based upon the fact that this complaint ran through the courts and was determined by the Board to have validity.”

Upon our own thorough de novo review of the record, we agree that all of Ms. Lewis’s claims arose out of the information defendants provided to the Board, which led to the suspension of her license. Ms. Lewis’s own deposition testimony confirms that her claims were a result of her license being suspended based on the complaint to the Board. Further, Ms. Lewis failed to present evidence sufficient to meet her evidentiary burden at trial that defendants’ actions were made with malice and without a reasonable belief that the information was accurate. Ms. Lewis was afforded a full hearing before the Board, and the suspension of her license was upheld. That decision has been | (¡affirmed by the district court and this court. Ms. Lewis has offered no additional evidence that the complaint was inaccurate or made with malice. Given these findings, we cannot say that the allegations lacked a reasonable basis and were maliciously made. Thus, all requirements of the statute were met. Accordingly, we find that the trial court correctly determined that the actions of the defendants were covered by LSA-R.S. 37:931, and defendants’ summary judgment was properly granted.

For the above and foregoing reasons, we affirm the trial court’s grant of summary judgment, and assess all costs associated with this appeal against Debra A. Lewis.

AFFIRMED.

      . See Lewis v. The Louisiana State Board of Nursing, 09-0979 (La.App. 1 Cir. 12/23/09) (unpublished opinion).

      . Ms. Lewis filed a "Motion for Rehearing on Defendants’ Motion for Summary Judgment,” which was denied on July 28, 2011.

      . We note that at the hearing Ms. Lewis was represented by counsel and offered the opportunity to present evidence.


author: HIGGINBOTHAM, J.

text:
    John V. SOUZA, III v. ST. TAMMANY PARISH and the City of Mandeville.
    No. 2011 CA 2198.
    Court of Appeal of Louisiana, First Circuit.
    June 8, 2012.

      Alvin J. Dupre, Jr., Mandeville, LA, for Plaintiff-Appellant, John V. Souza, III.
    Christopher M. Moody, Hammond, LA, for Defendant-Appellee, The City of Mandeville.
    Before CARTER, C.J., PARRO, and HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

| ^Plaintiff challenges the trial court’s grant of summary judgment dismissing his suit against the City of Mandeville. The issue presented is whether plaintiffs claims are barred by a Louisiana recreational use immunity statute, La. R.S. 9:2795. Finding that plaintiffs claims are barred, we affirm.

BACKGROUND

According to the record, John V. Souza, III (“plaintiff’) was injured when he fell off his bike while riding through a tunnel on the Tammany Trace (“the Trace”) on December 2, 2007. The Trace is a 31-mile recreational trail running through five communities along the north shore of Lake Ponchartrain in St. Tammany Parish (“the Parish”). The tunnel where plaintiff fell is located in the City of Mandeville (“the City”). Plaintiff alleges that while riding his bike through the tunnel, he encountered an extremely slippery roadway surface that was covered with mold, mildew, slime, or growth. Upon contact with the slippery substance, the wheels on plaintiffs bike slipped out from under him, causing him to fall off his bike onto the tunnel pavement. Plaintiff asserted that he suffered serious injury, including a detached bicep tendon that required right elbow surgery.

Plaintiff filed a petition for damages against the City and the Parish, asserting that the slippery slime he encountered on the roadway surface in the Trace tunnel constituted an unreasonably dangerous condition about which the City and the Parish had actual knowledge, but failed to properly maintain and remedy. Plaintiff voluntarily dismissed the Parish from the lawsuit, but then, in an amended petition for damages, he further alleged that both the City and the Parish had willfully or maliciously failed to warn the Trace users about the unreasonably dangerous (slippery) condition in the tunnel.

The City filed a motion for summary judgment, contending that it was entitled to immunity, pursuant to La. R.S. 9:2795. The City also asserted that | ¡¡plaintiff could not establish an essential element of his claim, i e., that the City had actual or constructive notice of an unreasonably dangerous condition in the tunnel at the time of his alleged accident; therefore, the City’s liability is limited, pursuant to La. R.S. 9:2800. After a hearing, the trial court granted the City’s motion for summary judgment and dismissed plaintiffs claims against the City. Plaintiff appeals.

LAW AND ANALYSIS

A court of appeal reviews the ruling of a trial court on a motion for summary judgment de novo under the same criteria that govern the trial court’s determination of whether the summary judgment should be granted. Lewis v. Busby, 2005-2242 (La.App. 1st Cir.9/27/06), 946 So.2d 665, 668. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). In ruling on a motion for summary judgment, the trial court’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of material fact. Guardia v. Lakeview Regional Medical Center, 2008-1369 (La.App. 1st Cir.5/8/09), 13 So.3d 625, 628. Factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Id.

On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Id. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the 14adverse party’s claim, action, or defense. Id. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. Id. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La. C.C.P. art. 966(C)(2); Robles v. ExxonMobile, 2002-0854 (La.App. 1st Cir.3/28/03), 844 So.2d 339, 341.

In Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751, the Louisiana Supreme Court set forth the following parameters for determining whether an issue is genuine or a fact is material:

A “genuine issue” is a “triable issue.” More precisely, “[a]n issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Summary judgment is the means for disposing of such meretricious disputes.” In determining whether an issue is “genuine,” courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence. “Formal allegations without substance should be closely scrutinized to determine if they truly do reveal genuine issues of fact.”
A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. “[FJacts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Simply put, a “material” fact is one that would matter on the trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. (Citations omitted.)

Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Guardia, 13 So.3d at 628.

One of Louisiana’s recreational use immunity statutes is La. R.S. 9:2795, providing a limitation of liability for landowners, including the state and its political subdivisions, of property used for recreational purposes. However, the statute retains liability for willful or malicious failure to warn against a dangerous | .^condition. Louisiana Revised Statutes 9:2795 provides, in pertinent part as follows:

A. As used in this Section:
(1) “Land” means urban or rural land, roads,....
(2) “Owner” means the possessor ... or person in control of the premises.
(3) “Recreational purposes” includes ... bicycle riding....
B. (1) Except for willful or malicious failure to warn against a dangerous condition, use, structure, or activity, an owner of land ... who permits with or without charge any person to use his land for recreational purposes as herein defined does not thereby:
(a) Extend any assurance that the premises are safe for any purposes.
(b) Constitute such person the legal status of an invitee or licensee to whom a duty of care is owed.
(c) Incur liability for any injury to person or property caused by any defect in the land regardless of whether naturally occurring or man-made.
E. (2)(a) The limitation of liability provided in this Section shall apply to any lands, whether urban or rural, which are owned, leased, or managed as a public park by the state or any of its political subdivisions and which are used for recreational purposes. (Emphasis added.)

In order to prove the liability of the City based on a defective condition of the Trace tunnel’s roadway surface, plaintiff must prove: (1) that the City owned or had custody of the thing (the tunnel) which caused the damage; (2) the thing (the tunnel’s roadway surface) was defective in that it created an unreasonable risk of harm to others; (3) the City had actual or constructive knowledge of the defect or risk of harm and failed to take corrective action within a reasonable time; and (4) causation. See La. R.S. 9:2800. See also Valet v. City of Hammond, 577 So.2d 155, 164 (La.App. 1st Cir.1991). Courts have consistently held that state entities or municipalities are not liable for every irregularity in a street or sidewalk. Boyle v. Board of Sup’rs, Louisiana State University, 96-1158 (La.1/14/97), 685 So.2d 1080, 1082. Constructive notice is statutorily defined to mean “the existence of facts which infer actual knowledge.” La. R.S. 9:2800(D).

The City contends that it is immune from liability in this case, because the accident happened on the Trace, which is land designed for recreational purposes, and plaintiff failed to demonstrate that the City willfully or maliciously failed to warn of any allegedly dangerous condition in the tunnel. The City also asserts that the evidence does not show that the City had knowledge of any dangerous condition at the time of plaintiffs injury, and therefore, plaintiff cannot prevail against the City. The parties do not dispute that the City maintained the Trace tunnel or that the trail was made available to the public for recreational purposes. It is further undisputed that while plaintiff was using the Trace, he was participating in a reereational activity (bicycle riding) on the day of his accident.

In support of its motion for summary judgment, the City submitted a copy of plaintiffs deposition and a copy of the deposition of the City’s Building and Grounds Superintendent, Christopher Lange. Plaintiff admitted in his deposition that he was an experienced bike rider who had ridden through the Trace tunnel several times and had never noticed or encountered slime or algae in the tunnel before. Plaintiff testified that on the day of the accident, he noticed water on the north side ramp of the tunnel, which was unusual, and it prompted him to slow down. Plaintiff stated that he had never seen water, slime, or algae in the tunnel 17before that day, and he did not know of anyone else that had been hurt in the tunnel or who had encountered trouble riding through the tunnel.

Lange’s deposition testimony established that the City maintained the Trace, including the tunnel, within the City’s limits. He stated that the City regularly pressure-washed the tunnel on a quarterly basis, unless it was necessary to clean it more often. Lange also testified that the tunnel was equipped with drains and a catch basin, as well as a pump to clear out the basin when necessary. Lange indicated that the Parish rangers patrolled the Trace every day, and the City would be notified if there was a maintenance issue. Additionally, Lange stated that the City’s work crews cheeked the tunnel every week for trash and maintenance issues. According to Lange, the City had never received a report of algae or slime substance on the tunnel roadway surface; instead, they had only received reports of water, leaves, trash, and graffiti in the tunnel.

As the party moving for summary judgment, the City sustained its initial burden of proof and established a prima facie case that it was entitled to immunity pursuant to La. R.S. 9:2795. The burden then shifted to plaintiff to prove the existence of an unreasonably dangerous condition in the tunnel, the City had knowledge of the dangerous condition, and the City willfully or maliciously failed to warn of such a condition. See La. R.S. 9:2795(B).

In response to the City’s motion for summary judgment, plaintiff filed an opposition to the motion, relying on the City’s work orders pertaining to the Trace tunnel. Plaintiff relies on three November 2007 work orders, entered shortly before the accident on December 2, 2007, where the City addressed water in or around the Trace tunnel. According to plaintiff, those work orders indicate the City had knowledge that the tunnel roadway surface was being exposed to water on |sa consistent basis just prior to his accident. Additionally, plaintiff asserts that one year prior to his accident, a work order reflects that the City pressure-washed the tunnel in response to a bike rider’s reporting that the bottom of the tunnel was slippery. Relying on the work orders, plaintiff argues that the City had knowledge of the potential for a dangerous or slippery surface in the tunnel, yet the City failed to warn Trace tunnel users of the danger. Plaintiff suggests that the work orders evidenced a genuine issue of material fact as to whether the failure to warn was willful or malicious; thus, summary judgment was not appropriate.

We disagree with plaintiffs argument pertaining to the work-order evidence. Each work order showed evidence that once the City was notified of the maintenance issue, it was remedied on the same day. Plaintiff failed to introduce any evidence that the City had knowledge of an unreasonably dangerous condition existing on the roadway surface of the Trace tunnel on the day of his accident or that the City had willfully or maliciously failed to warn of such a condition that day. Once the City established that it was entitled to immunity under La. R.S. 9:2795, the burden of establishing a malicious or willful failure to warn of a dangerous condition shifted to plaintiff, who presented no summary judgment evidence in this regard. “[A] failure to warn of a dangerous condition connotes a conscious course of action, and is deemed willful or malicious when action is knowingly taken or not taken, which would likely cause injury, with conscious indifference to the consequences thereof.” DeLafosse v. Village of Pine Prairie, 2008-0693 (La.App. 3d Cir.12/10/08), 998 So.2d 1248, 1251, writ denied. 2009-0074 (La.2/4/09), 999 So.2d 766, quoting Lambert v. State, 40,170 (La.App. 2d Cir.9/30/05), 912 So.2d 426, 433-34 (citations omitted), writs denied, 05-2310 (La.4/17/06), 926 So.2d 509 and 05-2311 (La.4/17/06), 926 So.2d 509.

We do not find that the City’s failure to warn of the possibility that the tunnel surface could be slippery when wet to be malicious or willful. Plaintiff |flmade no showing that the City consciously chose a course of action that revealed a willful or malicious failure to warn users of the tunnel about the allegedly dangerous condition. Rather, plaintiffs evidence showed that the City promptly remedied each reported issue or complaint of water in and around the Trace tunnel. Thus, plaintiff failed to demonstrate that he would be able to meet his burden of proof at trial. We find that the City was afforded immunity pursuant to this recreational use immunity statute under these facts. Therefore, the trial court did not err in concluding that there were no genuine issues of material fact as to the City’s liability.

CONCLUSION

After a de novo review of the record, we find no error in the judgment of the trial court. Accordingly, we affirm the trial court’s summary judgment dismissing plaintiffs claims against the City. All costs of this appeal are assessed to plaintiff-appellant, John V. Souza, III.

AFFIRMED.

      . The City submitted a copy of an agreement between the City and the Parish, which was introduced into evidence at the hearing on the City's motion for summary judgment. The agreement outlines the obligations of the City and the Parish regarding maintenance and improvement of the Trace tunnel and their cooperative efforts to “inform each other of any potentially dangerous situation or condition that may exist” in or around the tunnel. The agreement also specifically outlines the obligation of the City to “provide, at its sole expense, any and all maintenance and upkeep to the [tjunnel, its approaches, ramps, walls, ceiling and fences.”

      . The work orders were attached to plaintiff’s opposition to the City's motion for summary judgment and were filed in the record as a part of the City’s discovery response to plaintiff’s request for production of documents.


author: WELCH, J.

text:
    Tyrone D. LAWSON v. ARABIE BROTHERS TRUCKING, INC.
    No. 2011 CA 2199.
    Court of Appeal of Louisiana, First Circuit.
    June 8, 2012.

      Jeffrey M. Boudreaux, Houma, LA for Plaintiff-Appellant Tyrone D. Lawson.
    Denis Paul Juge, Thomas M. Ruli, Me-tairie, LA, for Defendant-Appellee Louisiana Commerce & Trade Association.
    Stephen M. Whitlow, Kirk L. Landry, Baton Rouge, LA, for Defendant-Appellee The Continental Insurance Company.
    Before PETTIGREW, McCLENDON, and WELCH, JJ.
   WELCH, J.

lain this workers’ compensation case, the plaintiff/employee, Tyrone D. Lawson, appeals a summary judgment granted in favor of a defendant, the Louisiana Commerce & Trade Association Self Insurer’s Fund (“LCTA”), on the basis that the plaintiff had no right of direct action against LCTA. Finding that the plaintiff does have a right of action, we reverse and remand.

FACTUAL AND PROCEDURAL HISTORY

The plaintiff was involved in an automobile accident in June 2002, while driving an eighteen-wheeler for his employer, Arabie Brothers Trucking, Inc. (“Arabie”). As a result of this accident, the plaintiff was injured and thereafter, was paid his regular compensation and medical benefits through July 2005 by a company that provided human resource services to Arabie. Thereafter, his benefits were apparently terminated without explanation or notice to the plaintiff.

On April 28, 2006, the plaintiff filed a disputed claim for compensation against Arabie and its alleged workers’ compensation insurer/administrator, O Two H/R Services. Thereafter, the plaintiff received notice that Arabie had been liquidated in bankruptcy in November 2004, and he was eventually provided with a certified copy of Arable’s workers’ compensation policy listing the insurer as LCTA for the time period of January 1, 2002 to January 1, 2003 (the time period within which the plaintiffs accident occurred). The plaintiff filed a third amended disputed claim for compensation on December 22, 2006, naming LCTA as a defendant.

LCTA filed a peremptory exception raising the objections of prescription and no cause or no right of action (relating to coverage issues), both of which were denied. LCTA then filed a motion for summary judgment claiming that it was not an “insurer” subject to the insurance code, and therefore, could not be sued directly by the plaintiff under the direct action statute. A hearing on the motion was held |aon April 29, 2011, and on that same date, the WCJ rendered and signed a judgment granting LCTA’s motion for summary judgment and dismissing the plaintiffs claim against it with prejudice. This appeal followed.

LAW AND DISCUSSION

On appeal, the plaintiff claims that the WCJ erred in granting LCTA’s motion for summary judgment on the basis that the plaintiff did not have a right of action against it and in dismissing the plaintiffs claims against LCTA. We agree.

Essentially, in its motion for summary judgment, LCTA claims that it is not an insurance company, but rather, that it is a group self-insurance fund set up in accordance with the provisions of La. R.S. 23:1191, et seq. And since La. R.S. 23:1195 specifically provides that group self-insurance funds are not insurers, are not to be deemed insurance, and are not subject to the Louisiana Insurance Code, LCTA argues that the plaintiff cannot directly sue it pursuant to the direct action statute. See La. R.S. 22:1269 and former La. R.S. 22:655. LCTA further claims that the plaintiff has no privity with LCTA, and thus, the plaintiffs right of action for workers’ compensation benefits is solely against his employer.

Louisiana Revised Statutes 23:1168 provides that group self-insurance funds are a means of securing workers’ compensation to employees. The provisions concerning group self-insurance funds are currently set forth in La. R.S. 23:1191, et seq. At the time of the plaintiffs work-related accident, La. R.S. 23:1195(A)(1) provided as follows:

Any five or more Louisiana employers who are not public entities, each of whom has a positive net worth, is financially solvent and is capable of assuming the obligations set forth under this Chapter |4and who is a member of the same bona fide trade or professional association as the other employers may agree to pool their liabilities to their employees on account of personal injury and occupational disease arising out of or incurred during the course and scope of the employment relationship on a fund year basis. This arrangement shall not be deemed to be insurance and shall not be subject to the provisions of Chapter 1 of Title 22 of the Louisiana Revised Statutes of 1950. [Emphasis added].

In Louisiana Safety Association of Timbermen Self-Insurers Fund v. Louisiana Insurance Guaranty Association, 2009-0023 (La.6/26/09), 17 So.3d 350, 357, the Louisiana Supreme Court analyzed and ascertained the meaning of the above provision of La. R.S. 23:1195(A)(1) and concluded that “the Legislature sought only to exclude workers’ compensation self-insurers from the regulatory provisions of Chapter 1 of Title 22 of the Insurance Code when it adopted the language of [La. R.S] 23:1195(A)(1).” Thus, the designation that “self-insurance is not deemed insurance has a circumscribed and limited meaning.” Id.

Notably, former La. R.S. 22:655, the direct action statute in effect at the time of the plaintiffs work-related accident, was not contained in the regulatory provisions of Chapter 1 of Title 22 of the Insurance Code. Therefore, former La. |sR.S. 22:655 is applicable to LCTA and the plaintiffs claims against it, and it provided, in pertinent part, as follows:

A. No policy or contract of liability insurance shall be issued or delivered in this state, unless it contains provisions to the effect that the insolvency or bankruptcy of the insured shall not release the insurer from the payment of damages for injuries sustained or loss occasioned during the existence of the policy, and any judgment which may be rendered against the insured for which the insurer is liable which shall have become executory, shall be deemed prima facie evidence of the insolvency of the insured, and an action may thereafter be maintained within the terms and limits of the policy by the injured person, or his or her survivors, mentioned in Civil Code Art. 2315.1, or heirs against the insurer.
B. (1) The injured person or his or her survivors or heirs mentioned in Subsection A, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy; and, such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido, in the parish in which the accident or injury occurred or in the parish in which an action could be brought against either the insured or the insurer under the general rules of venue prescribed by Code of Civil Procedure Art. 42 only. However, such action may be brought against the insurer alone only when:
(a) The insured has been adjudged a bankrupt by a court of competent jurisdiction or when proceedings to adjudge an insured a bankrupt have been commenced before a court of competent jurisdiction;
(b) The insured is insolvent;
* * *

The “Workers’ Compensation and Employer Liability Certificate of Self-Insurance” issued by LCTA to Arabie specifically provides, as follows:

These statements apply where they are required by law:
1. As between an injured worker and [LCTA], [LCTA] ha[s] notice of the injury when [Arabie] ha[s] notice.
2. [Arable’s] default or the bankruptcy of [Arabie or its estate] will not relieve [LCTA] of [its] duties under this coverage after an injury occurs.
3. [LCTA is] directly and primarily liable to any person entitled to benefits payable by this coverage. Those persons may enforce [LCTA’s] duties; so may an agency authorized by law. 1 (¾Enforcement may be against [LCTA] or against [Arabie] and [LCTA]. [Emphasis added.]

Considering the circumscribed, limited meaning of the applicable version of La. R.S. 23:1195(A)(1) set forth by our supreme court in Louisiana Safety Association of Timbermen Self-Insurers Fund, 17 So.3d at 357, the applicable provisions of the direct action statute, the bankruptcy of Arabie, and the specific provisions of the certificate of self-insurance issued by LCTA to Arabie, which provides for a direct right of action by an injured worker against LCTA for workers’ compensation benefits, we conclude that the plaintiff has a right of direct action against LCTA. Accordingly, the WCJ erred in granting LCTA’s motion for summary judgment on the basis that the plaintiff had no right of direct action against LCTA and in dismissing the plaintiffs claims against it. The April 29, 2011 judgment of the WCJ is reversed, and this matter is remanded for further proceedings.

CONCLUSION

For all of the above and foregoing reasons, the April 29, 2011 judgment is reversed, and this matter is remanded for further proceedings.

All costs of this appeal are assessed to the defendant/appellee, the Louisiana Commerce & Trade Association Self Insurer’s Fund.

REVERSED AND REMANDED.

McClendon, j. concurs.

      . The plaintiff’s employer, Arabie, cannot be sued for this obligation because Arabie was discharged for this obligation in the bankruptcy proceedings without the knowledge of the plaintiff.

      . The general rule is that the law in effect at the time of the work-related accident governs in workers' compensation cases. Frith v. Riverwood, Inc., 2004-1086 (La.1/19/05), 892 So.2d 7, 12-13.

      . Louisiana Revised Statutes 23:1195(A)(1) was subsequently amended by 2006 La. Acts, No. 634, § 1, eff. June 23, 2006; 2007 La. Acts, No. 384, § 1; 2008 La. Acts, No. 220, § 8, eff. June 14, 2008; and 2010 La. Acts, No. 794, § 2, and now provides:
      Any five or more Louisiana employers who are not public entities, each of whom has a positive net worth, is financially solvent, and is capable of assuming the obligations set forth under this Chapter, and who are all members of the same bona fide trade or professional association may agree to pool their liabilities to their employees on account of personal injury and occupational disease arising out of or incurred during the course and scope of the employment relationship. This arrangement shall not be an insurer, shall not be deemed to be insurance and shall not be subject to the Louisiana Insurance Code. The member employers of the arrangement likewise shall not be insurers or be subject to the Louisiana Insurance Code. [Emphasis added].
      LCTA argues that the provisions of La. R.S. 23:1195(A)(1), as amended by 2010 La. Acts, No. 794, § 2 is applicable herein. However, as these amendments are substantive in nature, they cannot be retroactively applied to the plaintiff’s claim. See La. C.C. art. 6. Furthermore, as previously noted in footnote 1, the provision of law in effect at the time of the plaintiff's work-related accident is the law applicable to the plaintiff's claims. See Frith, 892 So.2d at 12-13.


author: WHIPPLE, J. KUHN, J.,

text:
    Charles MITCHELL, James Mitchell and Barbara Mitchell v. SOUTHERN SCRAP RECYCLING, L.L.C.; Southern Scrap Material Co., L.L.C.; Southern Scrap Recycling Morgan City, L.L.C. and ABC Insurance Company.
    No. 2011 CA 2201.
    Court of Appeal of Louisiana, First Circuit.
    June 8, 2012.

      Timothy R. Richardson, Freeman R. Matthews, New Orleans, LA, for Plaintiffs/Appellants, Charles Mitchell, James Mitchell, and Barbara Mitchell.
    Jefferson R. Tillery, Elizabeth S. Healy, C. Barrett Rice, New Orleans, LA, for Defendants/Appellees, Southern Scrap Recycling, LLC; Southern Scrap Material Co., LLC; and Southern Scrap Recycling Morgan City, LLC.
    Michael P. Corry, Lafayette, LA, for Defendant/Appellee Gemini Insurance Company.
    Paul J. Politz, New Orleans, LA, for Defendant/Appellee IPC Contractors.
    Alistair M. Ward, New Orleans, LA, for Defendants/Appellees Lexington Insurance Company and Chartis Specialty Insurance Company.
    Richard L. Olivier, Metairie, LA, for Defendants/Appellees Louisiana Container Co. and Travelers Property Casualty Co. of America.
    Margaret Tooke, Baton Rouge, LA, for Third-Party Defendant/Appellee Travelers Indemnity of Connecticut.
    Paul Palermo, Metairie, LA, for Defendant/Appellee Travelers Property Casualty Company.
    Before WHIPPLE, KUHN, and GUIDRY, JJ.
   WHIPPLE, J.

|sThe issue presented herein is whether a truck driver, injured in a work accident, and his parents are barred from bringing a tort claim against the scrap metal company at whose yard the truck driver was assigned by his direct employer to haul and deliver scrap metal, on the basis that the scrap metal company was his statutory employer pursuant to the provisions of the Louisiana Workers’ Compensation Act. The trial court granted the scrap metal company’s motion for summary judgment and dismissed the plaintiffs’ claims against it, and the plaintiffs appeal. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Charles Mitchell was employed by IPC Contractors, LLC, as a truck driver. IPC Contractors had contracted with Southern Scrap Recycling Morgan City, LLC (“Southern Scrap Morgan City”), whereby IPC Contractors provided trucking services to Southern Scrap Morgan City. In fulfilling this contract, IPC Contractors assigned Charles to work at Southern Scrap Morgan City’s Houma yard. Pursuant to this arrangement, Charles drove a truck carrying large metal containers owned by Southern Scrap Morgan City to various facilities with which Southern Scrap Morgan City contracted to deliver and pick up scrap material placed in those large metal containers.

On August 9, 2008, Charles was injured while delivering a load of scrap at the Houma facility. When Charles attempted to open the “gate,” or door, of the container, the gate, which weighed in excess of 700 pounds, became detached from the container and fell on Charles. Charles, who was twenty-one years old at the time of the accident, was seriously injured.

| ./Thereafter, Charles and his parents, James and Barbara Mitchell, filed a suit for damages against Southern Scrap Material Company, LLC; Southern Scrap Recycling, LLC; and Southern Scrap Recycling Morgan City, LLC (“the Southern Scrap defendants”), among others, contending that the Southern Scrap defendants were liable to them for failing to provide a safe container free from vices and for various alleged acts of negligence.

On June 21, 2010, Southern Scrap Morgan City moved for summary judgment, contending that it was immune from tort liability as Charles’s statutory employer pursuant to LSA-R.S. 23:1061. Southern Scrap Morgan City contended that it was entitled to statutory employer status because it contracted with Charles’s immediate employer, IPC Contractors, through a Master Service Contract dated July 28, 2006, in which the parties agreed that Southern Scrap Morgan City shall be considered the “special employer” or “statutory employer,” as defined in LSA-R.S. 28:1031 and 23:1061. Thus, Southern Scrap Morgan City averred that because the exclusive remedy available to plaintiffs was workers’ compensation, plaintiffs were precluded from bringing a tort claim against it.

Plaintiffs opposed the motion, arguing that the Master Service Contract did not unambiguously recognize Charles as a statutory employee in that there were two conflicting provisions in the contract addressing this issue and that questions of fact remain as to whether trucking is an integral part of Southern Scrap Morgan City’s business.

Following a hearing on the motion, the trial court granted Southern Scrap Morgan City’s motion for summary judgment and dismissed plaintiffs’ claims against it with prejudice. From this judgment, plaintiffs ^appeal, contending that: (1) the trial court committed legal error in utilizing the law of statutory construction when considering the conflicting paragraphs of the Master Service Contract, instead of construing the ambiguity against the drafter; (2) the trial court committed legal error in failing to apply Prejean v. Maintenance Enterprises, Inc., 2008-0364 (La.App. 4th Cir.3/25/09), 8 So.3d 766, writ denied, 2009-0892 (La.6/26/09), 11 So.3d 496; and (3) the trial court erred in failing to determine that genuine issues of material fact existed as to whether trucking is an integral part of Southern Scrap Morgan City’s business.

BURDEN OF PROOF AND STANDARD OF REVIEW FOR SUMMARY JUDGMENT

A motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). The summary judgment procedure is expressly favored in the law and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. LSA-C.C.P. art. 966(A)(2).

The mover bears the burden of proving that he is entitled to summary judgment. LSA-C.C.P. art. 966(C)(2). However, if the mover will not bear the burden of proof at trial on the subject matter of the motion, he need only demonstrate the absence of factual support for one or more essential elements of his opponent’s claim, action, or defense. LSA-C.C.P. art. 966(C)(2). If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense, then the nonmoving party must produce factual support sufficient to satisfy his evi-dentiary burden at trial. LSA-C.C.P. art. |R966(C)(2). If the mover has put forth supporting proof through affidavits or otherwise, the adverse party may not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. LSA-C.C.P. art. 967(B).

If, on.the other hand, the mover will bear the burden of proof at trial, that party must support his motion with credible evidence that would entitle him to a directed verdict if not controverted at trial. Hines v. Garrett, 2004-0806 (La.6/25/04), 876 So.2d 764, 766. Such an affirmative showing will then shift the burden of production to the party opposing the motion, requiring the opposing party either to produce evidentiary materials that demonstrate the existence of a genuine issue for trial or to submit an affidavit requesting additional time for discovery. Hines, 876 So.2d at 766-767.

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. East Tangipahoa Development Company, LLC v. Bedico Junction, LLC, 2008-1262 (La.App. 1st Cir.12/23/08), 5 So.3d 238, 243-244, writ denied, 2009-0166 (La.3/27/09), 5 So.3d 146.

DISCUSSION

Under the Louisiana Workers’ Compensation Act (“the Act”), an employer is liable for compensation benefits to an employee who is injured as a result of an accident arising out of and in the course of employment. LSA-R.S. 23:1031. Generally, the rights and remedies under the Act provide an employee’s exclusive remedy against the employer for such injury. LSA-R.S. 23:1032. Moreover, the Act applies both to a direct |7employer/employee relationship, as well as to a statutory employer/employee relationship. Labranche v. Fatty’s, LLC, 2010-0475 (La.App. 1st Cir.10/29/10), 48 So.3d 1270,1272.

Specifically, LSA-R.S. 23:1061(A)(1) provides that when a “principal” undertakes to execute any work, “which is a part of his trade, business, or occupation” and contracts with a “contractor” for the execution of “the whole or any part of the work undertaken by the principal,” the principal, as a “statutory employer,” shall be liable to pay to any employee employed in the execution of the work “any compensation” under the Act and “shall be granted the exclusive remedy protections of R.S. 23:1032-” Thus, a “statutory employer” is liable to pay any employee employed in the execution of the work any compensation due under the Act and, in turn, is entitled to statutory immunity. LSA-R.S. 23:1061(A)(1).

The doctrine of “statutory employer” codified in LSA-R.S. 23:1061 was amended in 1997 to provide that, except in the two-contract situation set forth in LSA-R.S. 23:1061(A)(2), a statutory employer relationship “shall not exist ... unless there is a -written contract between the principal and a contractor ... which recognizes the principal as a statutory employer.” LSA-R.S. 23:1061(A)(3). When there is such written contractual recognition of the relationship, there shall be a rebuttable presumption of a statutory employer relationship between the principal and the contractor’s employees that may be overcome only by showing the work performed is not an integral part of or essential to the ability of the principal to generate that principal’s goods, products, or services. LSA-R.S. 23:1061(A)(3); Labranche, 48 So.3d at 1272-1273.

An employer seeking to avail itself of tort immunity bears the burden of proving its entitlement to immunity. Furthermore, immunity statutes |Rmust be strictly construed against the party claiming the immunity. Labranche, 48 So.3d at 1272. The ultimate determination of whether a principal is a statutory employer entitled to immunity is a question of law for the court to decide. Fleming v. JE Merit Constructors, Inc., 2007-0926 (La.App. 1st Cir.3/19/08), 985 So.2d 141, 146.

In the instant case, the Master Service Contract in effect between Southern Scrap Morgan City and IPC Contractors, Charles’s direct employer, provided in paragraph 25, in pertinent part, as follows:

It is the intent of [IPC Contractors] and [Southern Scrap Morgan City] that, for purposes of the LA R.S. Chapter 23, [Southern Scrap Morgan City] shall be considered the “special employer” or “statutory employer” and [IPC Contractors] shall be considered the “general employer” (each as defined in LA R.S. 23:1031 or 23:1061) with respect to each and every employee of [IPC Contractors] and its subcontractors (the “Contractor Employees”) and each Contractor Employee shall be deemed, for purposes of LA R.S. 23:1031, to be under the control and direction of [Southern Scrap Morgan City]. As such, [Southern Scrap Morgan City] and [IPC Contractors] are each entitled to the exclusive remedy protections provided by LA R.S. 23:1032....

This contractual language clearly recognizes Southern Scrap Morgan City’s status as the statutory employer of IPC Contractors’s employees, as contemplated by LSA-R.S. 23:1061(A)(3).

Nonetheless, in their first assignment of error, the Mitchells argue that, despite the clear language in paragraph 25 establishing the parties’ intent that Southern Scrap Morgan City be recognized as the statutory employer of IPC Contractors’s employees, the language of paragraph 13 creates an ambiguity, thus preventing a finding of statutory employer status. Paragraph 13, addressing IPC Contractors’s independent contractor status, provides as follows:

[IPC Contractors] shall be an independent Com,pany with respect to the performance to all work hereunder, and neither [IPC Contractors] nor anyone employed by [IPC Contractors] \c,shall be deemed for any purpose to be the employee, agent, servant or representative of [Southern Scrap Morgan City] in the performance of any work or service or part thereof in any manner dealt with herein. [Southern Scrap Morgan City] shall have no direction or control of [IPC Contractors], its employees and agents except in the result to be obtained. The work contemplated herein shall meet the approval of [Southern Scrap Morgan City] and shall be subject to the general right of inspection of [Southern Scrap Morgan City] to secure the satisfactory completion hereof. The actual performance and supervision of all work hereunder shall be by [IPC Contractors], but [Southern Scrap Morgan City] or its representatives shall have unlimited access to the operations to determine whether the work is being performed by [IPC Contractors] in accordance with all the provisions of this Contract and any applicable work order. [Emphasis added.]

However, contrary to the Mitchells’ arguments, this contractual language is irrelevant to the determination of whether Southern Scrap Morgan City is entitled to tort immunity herein under the Act. The requirements set forth by the legislature for “statutory employer” status and its resulting liability for workers’ compensation benefits and concomitant right to tort immunity have nothing to do with whether or not the injured employee’s direct employer was designated as an independent contractor in the contract between the parties. See Zuccarello v. Exxon Corporation, 756 F.2d 402, 410 (5th Cir.1985); Johnson v. Tennessee Gas Pipeline Company, 99 F.Supp.2d 755, 758 (E.D.La.2000). As noted by the federal district court in Johnson, even if a worker is found to be an independent contractor, he may still be subject to the workers’ compensation laws if he is also determined to be a “statutory employee” pursuant to LSA-R.S. 23:1032 and 23:1061. Johnson, 99 F.Supp.2d at 758.

We further find no merit to the Mitch-ells’ argument in their second assignment of error that the trial court herein erred in failing to find the Master Service Contract to be unenforceable pursuant to the Fourth Circuit Court of Appeal’s holdings in Prejean. In Prejean, the contract between the | mprincipal and the injured worker’s immediate employer required the principal to pay workers’ compensation benefits only “if the immediate employer, [contractor, or its subcontractors as applicable, is unable to meet their financial obligation under the Louisiana Workers’ Compensation Statute.” Prejean, 8 So.3d at 774. The Fourth Circuit determined that the principal therein was not entitled to “statutory employer” status because the above-quoted contractual provision amounted to “modifying, and even renouncing, the unconditional obligation” of workers’ compensation to the injured worker. The court concluded that because the principal did not accept unconditionally the obligation of a statutory employer, it could not obtain the benefit of a statutory employer. Prejean, 8 So.3d at 776.

In the instant case, the Mitchells contend that the Master Service Contract similarly contains a provision through which Southern Scrap Morgan City attempts to avoid its responsibility under the workers’ compensation law by requiring the direct employer, IPC Contractors, to be responsible for all workers’ compensation obligations. Specifically, in support of their contention that Southern Scrap Morgan City has attempted to avoid its responsibility for workers’ compensation, the Mitch-ells rely on paragraph 9 of the Master Service Contract, which provides, in pertinent part, as follows:

At any and all times during the term of this Agreement, [IPC Contractors] agrees to procure and maintain, or cause to be procured and maintained, insurance policies with coverages, terms, conditions and underwriters acceptable to [Southern Scrap Morgan City], which, at a minimum, shall provide the coverages as shown and described on Exhibit “A” attached hereto.... Further, [IPC Contractors] agrees to execute the Hold Harmless and Indemnity Agreement attached hereto as Exhibit “B”.

| n Exhibits A and B to the Master Service Contract required IPC Contractors to procure workers’ compensation insurance coverage and further required IPC Contractors to “indemnify and hold [Southern Scrap Morgan City] harmless” from any liability in defending any claim brought against it, “including, but not limited to, those brought by ... [IPC Contractors’s] Employees,” for damages or injury “in connection with the work to be performed, services rendered or material furnished to or for the benefit of’ Southern Scrap Morgan City.

However, the provision of the Master Service Contract relied upon by the Mitchells herein differs significantly from the pertinent provisions of the contract in Prejean.. Specifically, as opposed to the contractual provision in Prejean, which attempted to limit the injured worker’s compensation remedies against the principal, paragraph 9 herein serves only to allocate ultimate liability as between Southern Scrap Morgan City and IPC Contractors, rather than depriving Mitchell of the statutorily-protected compensation remedy that he may choose to exercise against either his direct employer, IPC Contractors, or his statutory employer, Southern Scrap Morgan City. Such a contractual provision is not invalid. Cantu v. Shaw Group, Inc., 2009-1774, p. 2 n. 3 (La.App. 1st Cir.5/3/10), 2010 WL 1752511 (unpublished); see also St. Angelo v. United Scaffolding, Inc./X-Serv., Inc., 2009-1420 (La.App. 4th Cir.5/19/10), 40 So.3d 365, 371-372, writ denied. 2010-1412 (La.9/24/10), 45 So.3d 1082.

Thus, given the existence of a written contract as required by LSA-R.S. 23:1061(A)(3), Southern Scrap Morgan City is presumed to be Charles’s statutory employer. See Fleming, 985 So.2d at 147. To rebut this presumption, the Mitchells had the burden of demonstrating that the work Charles was performing at the time he was injured was not a part of |12Southern Scrap Morgan City’s trade, business, or occupation. In their third assignment of error, the Mitchells contend that the trial court erred in failing to determine that genuine issues of material fact existed as to whether trucking is an integral part of Southern Scrap Morgan City’s business.

Under LSA-R.S. 23:1061(A)(1), “work shall be considered part of the principal’s trade, business, or occupation if it is an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.” In support of its motion for summary judgment, Southern Scrap Morgan City presented portions of the deposition testimony of its vice-president and the supervisor of its Houma yard to establish the nature and needs of its business. According to the testimony of these men, Southern Scrap Morgan City is engaged in the scrap metal business, whereby it purchases scrap material from customers offsite, transports the scrap material to its facilities in Hou-ma or Morgan City, processes the scrap, and then resells it for a profit. Thus, having the scrap material it purchases delivered to its Houma or Morgan City facility for processing is an integral part of Southern Scrap Morgan City’s business and essential to its ability to resell the processed scrap metal.

Although the Mitchells contend on appeal that a material issue of fact still remains as to whether trucking is an integral part of Southern Scrap Morgan City’s business, the evidence they offered in opposition to the motion for summary judgment does not create such an issue of fact and does not rebut the presumption that Southern Scrap Morgan City is Charles’s statutory employer. See Everett v. Rubicon, Incorporated, 2004-1988 (La.App. 1st Cir.6/14/06), 938 So.2d 1032, 1043, writ denied, 2006-1785 (La.10/13/06), 939 So.2d 369.

| ^Accordingly, we find no error in the trial court’s conclusion that the Mitchells failed to overcome the presumption conferred by LSA-R.S. 23:1061(A)(3). Thus, Southern Scrap Morgan City’s motion for summary judgment was properly granted.

CONCLUSION

For the above and foregoing reasons, we affirm the trial court’s January 7, 2011 judgment, granting Southern Scrap Morgan City’s motion for summary judgment and dismissing the Mitchells’ suit against it with prejudice. Costs of this appeal are assessed against plaintiffs, Charles, James, and Barbara Mitchell.

AFFIRMED.

KUHN, J., dissents & assigns reasons.

KUHN, J.,

dissenting.

hi respectfully disagree with the result reached in the majority opinion. I believe there is an irreconcilable conflict in the master service contract due to the fact that Paragraph 25 therein provides that Southern Scrap is the “statutory employer” of IPC Contractors’ employees and is entitled to the statutory tort immunity of La. R.S. 23:1032 et seq., whereas Paragraph 13 of that same contract provides that no one employed by IPC Contractors shall be deemed an employee of Southern Scrap “for any purpose.” I strongly disagree with the majority’s conclusion that the language of Paragraph 13 “is irrelevant to the determination of whether Southern Scrap Morgan City is entitled to tort immunity under the [Workers’ Compensation] Act.” The conflict between these two contractual provisions is crucial to the resolution of this matter. Moreover, the two cases cited in the majority opinion as support for the conclusion that Paragraph 13 is irrelevant dealt with contractual provisions providing only that the immediate employers of the injured workers were independent contractors. See Zuccarello v. Exxon Corporation, 756 F.2d 402 (5th Cir.1985); Johnson v. Tennessee Gas Pipeline Company, 99 F.Supp.2d 755 (E.D.La.2000). The contracts at issue in those cases were not ambiguous because, unlike the instant case, they did not contain express language providing that the employees of the independent contractor were not to be deemed employees of the purported statutory employer for any purpose.

| «.Thus, since the master service contract in this case contained an irreconcilable ambiguity and the contract was provided by Southern Scrap, the ambiguity therein must be construed against it. See La. C.C. art. 2056. This conclusion is reinforced by the fact that immunity statutes must be strictly construed against the party claiming the immunity. See Labranche v. Fatty’s, LLC, 10-0475 (La.App. 1st Cir.10/29/10), 48 So.3d 1270, 1272. Thus, since the master service contract, viewed as a whole, does not clearly and unambiguously provide that Southern Scrap is the statutory employer of Charles Mitchell, I do not believe Southern Scrap was entitled to summary judgment in its favor based on statutory tort immunity under La. R.S. 13:1032. Accordingly, I dissent.

      . The Mitchells later amended their petition to name Louisiana Container Company, Inc., the manufacturer of the container at issue, as an additional defendant. Various incidental actions were also filed, but they are not at issue in this appeal.