author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Eric Paul CARNAGGIO v. Marie Starlone CAMBRE.
    No. 11-CA-552.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 2011.

      Wilbur Woods Reynaud, Attorney at Law, Lutcher, LA, for Plaintiff/Appellant.
    Martin S. Triche, Sarah A. Legendre, Attorneys at Law, Napoleonville, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

| ¿The plaintiff/appellant, Mr. Eric Car-naggio, appeals the trial court’s judgment awarding the defendant/appellee, Mrs. Marie Cambre, $20,000 in general damages. The judgment also ordered Eric to improve his property to prevent water from overflowing onto Mrs. Cambre’s property. We find no error in the trial court’s ruling. The judgment is affirmed.

Factual and Procedural Background

Mr. Henry Starlone purchased 82.4 acres of land, the Starlone property, from Colonial Sugars Company on May 31, 1947, in the community of Hester, Louisiana, St. James Parish. He later conveyed a portion of the Starlone property to his daughter, Mrs. Cambre, and her husband on January 9, 1963. Mrs. Cambre constructed her homestead on the property that same year. In September of 1963, Mr. Starlone then conveyed a portion of the Starlone property west of Mrs. Cam-bre’s homestead to his other daughter, Mrs. Henrietta Becnel, and her husband. On December 28, 1970, the Becnels conveyed their land to Mr. Camille Carnaggio, Sr., Eric’s grandfather. The Carnaggio property was surrounded on the west, east, and north by the Starlone property (hereinafter referred to as the “Cambre property”) with the situs of Mrs. Cam-bre’s homestead on the east of the | oCarnaggio property. The south end of the Carnaggio and Cambre properties faced the Mississippi River along Belmont Road.

A small swell, located on the west of the Carnaggio property, drained into a ditch located on the northern end of the Cambre property — that swell partially drained the Cambre property as well. Two ditches were situated between the Carnaggio and Cambre properties on the west side of Mrs. Cambre’s homestead. One ditch extended approximately 15 feet into the Carnaggio property. The other ditch ran from the river straight back in a northerly direction.

Around 1972, Eric’s grandfather placed a duplex rental unit on the Carnaggio property. Two septic tanks, located in the rear of the duplex, serviced each unit. The septic tank that serviced the apartment on the left of the duplex flowed from the west to the ditch on northeast of the Cambre property. The septic tank which serviced the apartment on the right drained in a northerly direction, straight back to the same ditch.

Mr. Camille Carnaggio, Jr. inherited his father’s one-half community interest in the Carnaggio property on January 8, 2003. Mr. Carnaggio, Jr. subsequently transferred the property to his son, Eric, through an act of donation on December 16, 2004. The duplex remained on the Carnaggio property until sometime in 2005 when Eric had it removed. After Eric removed the duplex, he began building up the Carnaggio property for the construction of his new home. It was during this time period that the present dispute arose between the Carnaggio and Cambre families.

On April 19, 2010, Eric filed a petition for damages and for injunctive relief against Mrs. Cambre. The petition alleged that he had acquired a servitude of passage to drain his sewerage through Mrs. Cambre’s property through thirty years ^acquisitive prescription. The petition further alleged that Mrs. Cambre caused him damage by blocking the drainage ditches on her property. Mrs. Cam-bre answered the petition and filed a re-conventional demand on May 19, 2010. The reconventional demand alleged that Eric covered the drainage ditches on both sides of his property which disrupted the natural flow of the water and caused her substantial flooding.

Mrs. Cambre moved for summary judgment on August 25, 2010. She alleged that Eric did not have a natural servitude of drain for his sewerage and that he did not acquire a servitude of passage by thirty years acquisitive prescription. The trial court issued its ruling on the summary judgment on October 27, 2010. It determined that Eric did not have a natural drainage servitude for sewerage, sewerage effluent or sewerage discharge onto or over Mrs. Cambre’s property. The court, however, denied the motion regarding Mrs. Cambre’s claim that Eric had not acquired a servitude of passage through the use of acquisitive prescription. Neither party sought appellate review of the trial court’s ruling, and the case proceeded to trial.

Mrs. Cambre testified that she has lived on the Cambre property her entire life. She stated that when she built her homestead in 1968, she installed a septic tank system that had a field bed that ran from the north to the east. She stated that the septic tank caved in 2007 and she installed a Modad system on top of it, which also drained in the same place. She stated that the sewerage never drained to the west and that the ditches between her homestead and the Carnaggio property, as well as the ditch on the western side of the Carnaggio property, ran from the river straight back, south to the north, until 1970.

Mrs. Cambre stated that she began to flood when Eric moved the duplex and built up the land to construct his new home. She stated that Eric constructed a |fimetal building over the ditch that extended 15 feet onto his property. The building had three gutters that drained into a pipe that extended 14 inches into her yard. She testified that she repeatedly told Eric about the flooding, but he never took care of it. She then spoke to Eric’s father who had Eric install a small PVC pipe along the fence. Mrs. Cambre stated, however, that due to the size of the pipe and the height of the dirt Eric added, the pipe could not catch all the water and she continued to flood. She then called the parish to complain, and they came out and dug a small trench. Mrs. Cambre stated that her homestead never pooled water before Eric built up the land and constructed his home. She also stated that she did not obstruct the ditches as Eric alleged.

Eric testified that he lived on the Car-naggio property his entire life and that he and his wife moved into the duplex in 2000. He conceded that he constructed a 40 x 75 foot metal building on the property which covered the ditch that extended 15 feet onto his property. He further testified that he added dirt to build up the foundation for his home but stated that he did not build up the entire land. Eric stated that Mrs. Cambre expressed concern about flooding when he added the dirt to his property, but he did not believe she would be affected anymore than she already was. He further added that the water from the gutters on his shed drained into the swell that the parish built until Todd Roussel, Mrs. Cambre’s son-in-law, chopped it up. Eric believed that Mrs. Cambre caused her own flooding when she added dirt along the side of her house and blocked the ditches.

Eric testified that he does not have and has never had a natural drainage problem. He stated that he began experiencing problems with his sewerage when Mrs. Cambre blocked the ditches on the east and west of his property. He stated that before Mrs. Cambre blocked the ditches, the sewerage overflow had continuously drained over thirty years in a northwestern direction through his | ^property to the Cambre property. He added that he did not think he needed to get permission from Mrs. Cambre to drain his sewerage because he had acquired thirty years acquisitive prescription over the northwest section of that property. He further stated that the sewerage never drained to the east.

Mr. Cedric Louque testified that he lived in the west duplex on the Carnaggio property from 1977-1981. He stated that when he lived in the duplex, two septic tanks were located in the rear and that his sewerage initially flowed from the west to the northeast into the ditch in the back. He further stated that the east septic tank drained straight backward to the north. Mr. Louque stated, however, that both tanks plugged in the middle in 1979 and his drain had to be rerouted to the western ditch. He testified that Mrs. Cambre’s husband helped him dig a ditch to the west to allow his sewerage to drain. He further stated that the ditch was not obstructed when he moved from the duplex.

Mr. Frank Rizzuto, another former resident of the Carnaggio duplex, also testified at trial. He stated that there were two septic tanks in the rear of the duplex when he lived there between 1987-1988. On direct examination, he stated that the sewerage from the septic tank went into an open ditch on the west. However, on cross-examination, he stated that he did not recall a ditch on the west. Rather, he stated that the overflow from the septic tank went into a ditch on the east and then went straight back.

Mr. Anthony Boudreaux, an employee of the Carnaggio’s, also testified at trial. He stated that he maintained the ditches on the Carnaggio property for 10-12 years beginning in 1976. He testified that a pipe from the duplex drained into the western ditch on the Carnaggio property and that the Cambres drained into that ditch as well. He stated, however, that there was only one septic tank at the rear of the Carnaggio duplex, not two. He said that although he maintained the Carnaggio 17ditches, he sometimes continued on through to the Cambre property to clear up the ditches there.

Mr. Gilbert Roussel, Mrs. Cambre’s brother-in-law, testified that he has lived on the Cambre property since about 1963 and had never observed any sewerage drain on that property until recently. He testified that Eric blocked the ditch when he built up the land and constructed the shed and house. Finally, he stated that he knew Mr. Boudreaux but never saw him perform any work on the ditches on the Cambre or Carnaggio properties.

Mr. Ozane Gravois, a sugarcane farmer on the Cambre property from the late 1970s until 2006, also testified. He testified that the ditch on the west of the Carnaggio property went from the river straight back into a canal in the back of the Cambre property. He stated that he maintained the portion of the west ditch behind the Carnaggio property and that he never saw Mr. Boudreaux perform any work on the ditches on either the Cambre nor Carnaggio properties. Mr. Gravois further testified that he built a headland and placed two culverts, at Mrs. Cambre’s request, on the Cambre property in 2006. He added that in 2006, the ditch on the west of the Carnaggio property drained through the two culverts and that the ditch was not blocked when he left. Mr. Gravois added, however, that although he provided an affidavit that stated that the ditch on the northwest side of the Carnaggio property drained sewerage runoff, he was unsure whether it was actually sewerage. He stated that he never saw any pipe that could have been categorized as a sewerage runoff pipe run into the ditch. He stated that he was only sure that natural water went into the west ditch.

Mr. Richard Gainey, Sr., a self-employed sewer treatment installer, also testified at the trial. Mr. Gainey stated that he installed a Modad system on the Carnaggio property in 1998. He stated that the sew-, erage drained to the east when | she installed the system. He testified that he specifically remembered that the system drained to the east because Mrs. Cambre had a well on her property, and he was required to place sewerage drainage fifty feet away from wells. He testified that within the first two years of installing the system, his company performed four inspections; and during those inspections, he was never informed that the direction of the drainage flow had changed.

Mr. Clarence Francis, the sanitary manager for St. James Parish, stated that Mrs. Cambre visited his office with a sewerage complaint in December of 2009. In the course of his investigation, he discovered that discharge from Eric’s Modad system, which was permitted in 1998, had drained onto the ground and run over to the Cam-bre property. He testified that Eric informed him that he had been draining on the ground ever since Mrs. Cambre blocked the ditch.

Mr. Jody Chenier, the public works operations director for St. James Parish, also testified at trial. Mr. Chenier stated that Erie contacted his office about five to six months before trial to determine whether any alternative routes existed to drain his sewerage, because Mrs. Cambre had blocked the ditch. He testified that he obtained permission from Mrs. Cambre to unblock the ditch because he was unable to locate any alternate routes for Eric to drain his sewerage.

Ms. Myra Roussel, Mrs. Cambre’s daughter, testified that neither sewerage nor runoff ever pooled onto her mother’s property before 2006. She stated that when Eric finished the trim work on his house, he dug a trench that spewed sewerage onto her mother’s property. She further stated that Eric ran a pipe to the northwest corner of the land but that there was no ditch to catch the drainage. Mrs. Roussel stated that before Eric constructed the shed and built up his property, water never pooled onto her mother’s homestead. She added that her family did | ¡¡not do anything to clog the ditch and stated that the ditch Mr. Chenier came out about was not the same ditch at issue in this case.

At the conclusion of the trial, the court rendered judgment on December 17, 2010, in Mrs. Cambre’s favor, awarding general damages in the amount of $20,000. The judgment also ordered Eric to install all modifications necessary to prevent overflow onto Mrs. Cambre’s property. Eric moved for a new trial. That motion was denied. This appeal follows.

Assignments of Error

Eric assigns the following errors for review:

1. The trial court erred when it determined that he had changed the natural flow of the water;
2. The trial court erred when it failed to recognize the servitude of drain acquired by prescription by the Car-naggio property for natural drainage and sewerage overflow;
3. The trial court erred in not granting a new trial or partial new trial to allow Mr. Chenier to introduce newly discovered evidence;
4. The trial court erred in failing to address the issue of natural drainage and the topographic system of the east bank of St. James Parish;
5. The trial court erred when it failed to apply St. James Parish Code of Ordinances, Streets Sidewalks and Other Places, § 102-92 and order Mrs. Cambre to reopen the ditches; and
6. The trial court erred when it found Mrs. Cambre suffered damages of $20,000.

Discussion

Preliminarily, we note that the issue regarding whether a natural drainage servitude existed for Eric’s sewerage, sewerage effluent or sewerage discharge has [ 1flalready been decided by the trial court in a motion for summary judgment. That decision is the law of the case. See Petition of Sewerage and Water Bd. of New Orleans, 278 So.2d 81, 83 (La.1973). Therefore, assignment of error number five and assignment of error number two, to the extent that it references sewerage overflow, is not properly before this Court.

First Assignment of Error

In his first assignment of error, Eric contends that the trial court erred in finding that he changed the natural flow of water. In this case, the trial court made a factual determination that Eric did, in fact, change the natural flow of the water by filling in the ditches on the northwest and northeast corners of his property and by installing a manmade pipe in their place.

On appeal, the reviewing court must give great weight to factual conclusions of the trier of fact. Abadie v. Morales, 391 So.2d 974, 976 (La.App. 4 Cir.1980). “Where there is conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.” Id.

La. C.C. art. 656 provides that the owner of the servient estate may not do anything to prevent the flow of water. However, the owner of the dominant estate may not do anything to render the servitude more burdensome. Id. As the ser-vient estate, Mrs. Cambre’s only obligation is to abstain from doing anything on her estate that would prevent the Carnaggio property from exercising the servitude, because the estate situated below is bound to receive the surface waters that naturally flow from an estate situated above unless an act of man creates the flow. La. C.C. arts. 651 and 655.

11 ,The testimony reveals that Mrs. Cam-bre’s homestead never pooled water before 2006. During the trial, Eric testified that Mrs. Cambre expressed concern to him about the possibility of flooding when he began adding dirt to his property. He further stated that he filled in the ditch that the parish built and that he covered the other ditch with his metal shed. Both Eric and Mrs. Cambre testified that Eric installed a pipe that drained the three gutters on his shed. The testimony revealed, however, that the pipe extended 14 inches into Mrs. Cambre’s property and that no ditch existed to catch the water. Nevertheless, Eric maintains that he did not change the natural flow of the water, further arguing that Mrs. Cambre blocked the natural drain when she plugged the ditches. The only evidence, other than Eric’s testimony, presented at trial that suggests that Mrs. Cambre blocked any ditches was Mr. Chenier’s. Mr. Chenier testified that Eric contacted him a few months before trial and told him that Mrs. Cambre had blocked the ditch. After learning this, Mr. Chenier spoke to Mrs. Cambre where he sought and obtained permission to unplug the blocked ditch. Mrs. Roussel testified, however, that the ditch Mr. Chenier unplugged was not one of the ditches at issue in this case.

The evidence in this case supports the trial court’s finding that Eric made the servitude more burdensome and changed the natural flow of the water when he built up his land and filled in the ditches. This assignment of error is without merit.

Second Assignment of Error

In his second assignment of error, Eric contends that the trial court erred when it failed to determine that he had acquired a servitude of drainage over the Cambre property through thirty years acquisitive prescription.

La. C.C. art. 742 provides that “an apparent servitude may be acquired by peaceable and uninterrupted possession of the right for ten years in good faith and 112by just title; it may also be acquired by uninterrupted possession for thirty years without title or good faith.” In this case, both Eric and Mrs. Cambre possessed just titles to their respective properties. Moreover, Eric has never alleged that he believed that his sewerage drained only on his own property. In fact, he testified that his sewerage has always drained to the northwest through the Cambre property. Because Eric was aware that his sewerage drained on someone else’s property, he can only claim a servitude of passage through the use of thirty years acquisitive prescription.

The burden of proof for acquisitive prescription is by a preponderance of the evidence. Delacroix Corp. v. Perex, 98-2447, p. 3 (La.App. 4 Cir. 11/8/00), 794 So.2d 862, 865, writ denied, 00-3245 (La.1/26/01), 782 So.2d 635; Bradford v. Thomas, 344 So.2d 717 (La.App. 2 Cir.1977), writ denied, 346 So.2d 714 (La.1977). The party alleging acquisitive prescription bears the burden of proving intent to possess as owner and that his possession has been continuous and uninterrupted, peaceable, public and unequivocal. Id. La. C.C. arts. 3424, 3476. Whether a party has possessed property for thirty years without interruption is a factual issue which will not be disturbed on appeal absent a showing of abuse of discretion. Id.

In this case, Eric testified that the sewerage on the Carnaggio property always drained northwest through the Cambre property. Mr. Louque, Mr. Gravois, Mr. Rizzuto, and Mr. Boudreaux testified on Eric’s behalf at the trial. Mr. Louque testified when he lived in the duplex from 1977-1981, the sewerage initially drained to the northeast. He stated, however, that in 1979, he and Mrs. Cambre’s husband rerouted his drain to the ditch on the west. Mr. Rizzuto, who resided in the duplex between 1987-1988, initially testified that the sewerage drained into an open ditch on the west. However, he later recanted on cross | ^examination and stated that the overflow from the septic tank went to a ditch on the east. Mr. Gravois testified that he was only certain that natural water drained into the ditch on the west and was unsure whether the Carnaggio sewerage drained there as well. Finally, Mr. Bou-dreaux testified that he maintained the ditches on the Carnaggio property for approximately ten years, beginning in 1976, and that sewerage drained from the duplex to the west. However, Mr. Gravois and Mr. Roussel, both of whom had been on the Cambre property for at least thirty years, testified that they never saw Mr. Boudreaux maintain ditches on either the Carnaggio or Cambre properties. Mr. Gainey, the man who installed the Carnag-gio’s Modad system in 1998, stated that the system drained to the east. He testified that he specifically remembered that the system drained to the east because he had to be fifty feet away from Mrs. Cam-bre’s well.

In light of the witnesses’ testimonies, this Court finds that Eric did not meet his burden of proof for acquisitive prescription by a preponderance of the evidence. Mr. Rizzuto waivered in his testimony and stated that the sewerage drained both to the west and east. Eric’s other witness, Mr. Gravois, did not specifically remember the sewerage draining to the west. Two of the witnesses contradicted Mr. Boudreaux’s testimony that he maintained the ditches for ten years. And finally, Mr. Gainey testified that in 1998 he specifically remembered that the Modad system flowed to the east. Where there is conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Abadie, supra, at 976. The trial court was in the best position to weigh the credibility of the witnesses’ conflicting testimony. It apparently accepted, as true, the testimony that the Carnaggio sewerage did not always flow in a northwesterly direction. We find that the trial court’s ruling was |unot manifestly erroneous. Therefore, this assignment of error is without merit.

Fourth, Assignment of Error

In his fourth assignment of error, Eric contends that the trial court erred when it failed to address the issue of drainage and the topographic system of St. James Parish. Eric’s petition for damages was based upon the allegation that Mrs. Cambre had blocked the ditches and prevented his sewerage from flowing. Eric has never alleged that Mrs. Cambre damaged his estate by preventing the natural flow of water from his estate. In fact, during the trial, Eric testified that he did not have a problem with flooding on his estate. We, therefore, find that the trial court did not err by failing to address the natural drainage and the topographic system of St. James Parish because Eric never complained of a natural drainage problem. This assignment of error is without merit.

Sixth Assignment of Error

In his sixth assignment of error, Eric contends that the trial court erred in awarding damages in the amount of $20,000. The ultimate determination by an appellate court as to whether a judge abused their ‘much discretion’ as a matter of law in awarding damages is a judgment call. Coco v. Winston Indus., Inc., 341 So.2d 332, 335 (La.1976).

In this case, Mrs. Cambre presented the following costs at trial 1) a $1,500 estimate to clean the sewerage Eric discharged onto her property; 2) a $1,500 invoice she paid to have her property re-surveyed when Eric alleged that her boundary markers were on his property; and 3) an $11,523 estimate she received to fix the natural drainage problem Eric created. In addition, Mrs. Cambre testified that this entire situation has caused her extreme stress and anguish because she is constantly in fear that her home will flood.

In Watters v. City of Bastrop, 445 So.2d 73 (La.App. 2 Cir.1984), the appellate court determined that the general damage award of $4,500 per plaintiff was inadequate and increased the award to $7,500 per plaintiff. In Smith v. Cutts, 99-253 (La.App. 3 Cir. 3/15/00), 759 So.2d 851, 860, the court awarded the plaintiffs $50,000 in general damages, $15,000 for loss of use, and $26, 990 for repair. In that case, the Third Circuit held that the servient estate is not required to accept effluent from the dominant estate. Id. at 857. See also Carr v. Oake Tree Apts., 34,539 (La.App. 2 Cir. 5/9/01), 786 So.2d 230, 235.

Before an appellate court can disturb a trial court’s award, the record must clearly reveal that the trier of fact abused its discretion in making its award. Coco, supra, at 335. “Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court.” Id. The evidence in the case supports the trial court’s general damage award of $20,000. We additionally find that Eric’s contention that Mrs. Cambre should be apportioned fault for blocking the ditches is without merit. As stated in the first assignment of error, the record supports the trial court’s finding that Eric blocked the ditches, thereby changing the natural flow of the water. Therefore, this assignment of error is without merit.

Third Assignment of Error

Finally, Eric contends that the trial court erred in not granting a new trial or a partial new trial. Eric contends that he was entitled to a new trial pursuant to La. C.C.P. art. 1972 which provides that, “a new trial shall be granted, upon contradictory motion of any party ... when the party has discovered, since the | lts trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.” Eric argues that Mr. Chenier should have been allowed to present evidence of official maps and other parish documents that he was unable to locate prior to trial. This Court finds that the evidence Eric sought to introduce could have been easily obtained before or during the trial. Mr. Chenier testified at the motion for new trial that he received a subpoena prior to trial. He further stated that he was asked for additional documents after trial and that he was able to easily find those documents. Based on Mr. Chenier’s testimony at the motion for new trial, we find that the evidence Eric sought to admit is not newly discovered evidence because it was easily obtainable prior to trial. Therefore, this assignment of error is without merit.

Conclusion

For the foregoing reasons, we conclude that the trial court’s factual finding that Eric blocked the ditches and changed the natural flow of the water is not manifestly erroneous. We also find that the trial court did not err in finding that Eric did not acquire a servitude of passage of thirty years through acquisitive prescription. We additionally find that the general damage award of $20,000 is not excessive and that the trial court did not err in denying the motion for new trial. The judgment appealed from is affirmed.

AFFIRMED

      . By the time the suit was filed, Mrs. Cambre owned all the land surrounding the Carnaggio property.

      . A swell is the highest part surrounding the ditch.

      . We further note that the fifth assignment of error is not properly before the Court because it presents an argument that was not presented during the trial or in the motion for new trial.

      . Eric objected to the first and third estimates as inadmissible hearsay. The trial court overruled the objections. We find no error in that ruling.

      . In Watters, sewerage drained into the plaintiffs' home 17 times over five years.


source: Caselaw Access Project

license: Public Domain

text:
    Christopher EZZELL v. Dr. Lucien Sidney MIRANNE, Jr.
    No. 11-CA-228.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 28, 2011.

      Anthony J. Staines, Corey P. Parenton, Attorneys at Law, Metairie, LA, Bobby J. Delise, Attorney at Law, New Orleans, LA, for Plaintiff/Appellee.
    Bobby R. Malbrough, Attorney at Law, Kenner, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   FREDERICKA HOMBERG WICKER, Judge.

|2This is an appeal by Lucien Miranne, Jr., defendant/appellant, from the judgment totaling $435,513.69, with interest, in favor of Christopher Ezzell, plaintiff/appel-lee, in his intentional delictual action. Ez-zell has also answered the appeal. For the following reasons, we award Ezzell an additional $75,000 for future pain and suffering. In all other respects, the judgment is affirmed.

Facts and Procedural History

The underlying facts, i.e., that Miranne struck Ezzell, are not seriously in dispute. On January 4, 2008, Miranne, his wife, their daughter and their son, went to Oscar’s, a bar and grille, to play pool. While Miranne and his son were at the bar ordering drinks, his wife and daughter sat down at a table. A waitress asked Mir-anne’s daughter for an ID, and because the 19 year old did not have one, she was told to leave, which she did. When Mir-anne arrived at the table and learned what had happened, he began arguing with the waitress. His wife and son left the [,-.building at that point, and Miranne went back to the bar and paid the tab. Miranne continued to be so boisterous that another waitress decided to call the police. As Miranne was leaving he passed behind Ez-zell, who was sitting on a bar stool facing the back bar and waiting for a to-go order. Ezzell turned toward Miranne and told him he should just leave. Ezzell and three disinterested witnesses all testified that Ezzell then turned back toward the back bar. They all agreed that Miranne passed Ezzell, then suddenly turned and came back toward him, and punched him on the right brow. Miranne’s version was that Ezzell called him an “a-e,” that he then turned to confront Ezzell face to face, and at that point he thought that Ezzell had moved his upper body toward him in what he considered a threatening manner so he hit him. There is no dispute that Ezzell did not raise his hands or arms and was thus defenseless when struck. After the blow, Miranne left the building.

Ezzell filed a petition for damages alleging serious injury as a result of Miranne’s punching Ezell in the face.

Intentional Tort

The jury determined that Miranne had committed an intentional tort, but also found that Ezzell had contributed to the incident. It apportioned 95% of the fault to Miranne and 5% to Ezzell. Miranne does not contest the fault determinations made by the jury. He does urge, however, that the trial judge erred in not reducing the total damage award made to Ezzell by his contributory negligence of 5%. We disagree.

La.C.C. art. 2323(C) provides that when a person suffers injury partly from his own negligence and partly as the result of an intentional tort, his recovery shall not be reduced by the percentage of his own negligence. The issue here is whether Ez-zell’s actions constituted negligence or an intentional tort on his part. An almost identical factual situation was presented in Daniels v. Essex Ins. Co., 04-579 (La.App. 5 Cir. 11/30/04), 890 So.2d 599. There, a man and a woman got into an argument at a bar. The man kicked the woman in the stomach and punched her in the jaw. The trial judge determined that the woman was partially at fault for engaging in the argument, but declined to reduce her recovery because her behavior did not amount to an intentional tort. This Court affirmed that judgment. Daniels, supra, 04-579 at 4, 890 So.2d at 602. We similarly find here that Ezzell was at most improvident in injecting himself into a dispute that appeared to have resolved itself when Miranne started to leave the bar. However, his actions clearly did not constitute an intentional tort, and therefore, even though his actions contributed to his injury, his damages may not be reduced.

The Awards

The more serious disputes here concern the severity of Ezzell’s injuries, and the effect that those injuries had on his employment. When Ezzell was struck, he fell off of the bar stool onto the floor. He was dazed, but it does not appear that he ever lost consciousness, and after a brief time on the floor he got up. He then proceeded out of the bar to see if he could further identify his assailant. It turned out that Miranne lived a few blocks from the bar and that he and his family had walked there from his house. Ezzell encountered the Mirannes on the street and there were discussions among them about the incident, but no further violence occurred. Ezzell learned Miranne’s identity and then returned to the bar. Several hours later, Ezzell drove himself to the East Jefferson General Hospital emergency room where he was examined by Dr. Gregory Caplan.

Dr. Caplan testified for the defense as an expert in emergency medicine. He identified the hospital record of the morning of January 5, 2008. According to that record, he examined Ezzell at 12:19 AM on January 5, 2008. Ezzell sustained a two centimeter laceration just above his right eyebrow. This is roughly the width [ 5of his thumb. He repaired the laceration with two sutures. Ezzell did not complain that he lost consciousness. He did not indicate that he had any amnesia. Ezzell did not complain of any other problems associated with being punched. Dr. Ca-plan performed a complete examination. That examination was negative except for the laceration. Ezzell did not exhibit any abnormal neurological deficits. He did not appear to have sustained a concussion.

Over the next several days, Ezzell began complaining of increasingly severe headaches. On January 9, 2008, he saw Dr. D.C. Mohnot, a neurologist specializing in the treatment of headaches. Over the next few days, this doctor ordered a CAT scan which was normal. An EEG showed mild abnormalities, but “nothing specific to talk about.” An MRI was similarly normal. His diagnosis as of January 14 was a closed head injury with post-traumatic “intractable headaches.” The doctor prescribed medications for the headaches. Ezzell returned for a January 23 visit still complaining of headaches, but additionally exhibiting slurred speech, slow thought processes, decreased word finding ability and impaired memory. He also reported that he had been sent home from his job because of these problems. He returned to Dr. Mohnot several times during February still complaining of headaches, and his medications were adjusted to try and find the best drug for his complaints. A second MRI done during this period was also normal. A third MRI done in March 2009 was also normal.

Dr. Mohnot saw Ezzell as recently as a month before trial and found that the medications he prescribed for the headaches had not yet resolved his problems. He had not released Ezzell to return to work because he continued to have symptoms with headaches and memory. In July 2008, Ezzell complained of tremors.

On August 14, 2008, Dr. Mohnot ordered a spec scan, a diagnostic tool to show the blood flow in the brain. Dr. Mohnot testified that the spec scan was not | ¿indicative of a brain injury. Further, the fact that Ezzell’s MRI and CAT scans were normal did not mean there was no head injury. It is more the rule than the exception that patients suffering mild head trauma or mild head injury show normal findings on MRI and CAT scans. Dr. Mohnot testified that the more frequent and intense the headaches, the less chance there is for long-term recovery.

Dr. Mohnot testified that in his opinion, the cognitive deficiencies regarding memory, speech, stuttering, and forgetfulness were related to the January 4, 2008 incident. He opined that at the time of trial, Mr. Ezzell had a poor prognosis for recovery. He testified that given the history of no headaches or cognitive symptoms before the incident, he would relate the headaches and the cognitive problems to Ez-zell’s head trauma of January 4, 2008. He testified that it was absolutely correct that the loss of consciousness was not necessary in order for the headaches to be related to the head trauma. Although most patients with mild head injury recover within weeks or months, a small number of patients, about 15 to 20 per cent, continue to have the symptoms and those symptoms can last for years. In his opinion, Ezzell’s age and pre-existing bipolar disorder, along with other predictors like pre-existing psychological problems, definitely would make it difficult to treat his symptoms and they would last much longer than a younger person with no previous medical history. He did not find that Ez-zell exaggerated his symptoms. He found him to be truthful.

Dr. Mohnot was referred to Dr. Corey Ann Conn’s diagnosis that Ezzell had medication overuse headaches. Dr. Mohnot disagreed with that diagnosis. He testified that when he examined Ezzell, he appeared to be confused, stuttered, and shopped for words. He did not notice that the longer he talked to him, the more fluent he became. Although sleep deprivation is one of the triggers for migraine |7type headaches, his headaches were different from the regular typical migraine headaches. Ezzell never had headaches like this before the head trauma.

At some point, Dr. Mohnot decided to refer Ezzell to Dr. Susan Andrews, a neu-ropsychologist, for testing because he was complaining of memory problems.

Dr. Andrews, a neuropsyehologist, testified that about 30 to 40 per cent of her practice involves testing for cognitive/brain dysfunctions resulting from head trauma. She noted that many types of dysfunction do not show up on MRIs, CT scans, or x-rays, but are nonetheless real. She administered a battery of tests to Ezzell in 2008. The first time was two months after the incident. At that time, she discerned several problems that he had reported to Dr. Mohnot. He was stuttering, had trouble finding appropriate words, his attention and concentration were impaired, he demonstrated significant memory problems, he was easily confused, took an abnormal amount of time to process information, and had difficulty multitasking. He was also anxious and depressed. She reviewed his prior medical history which showed that before the incident here, he suffered from a bipolar disorder with consequent anxiety and depression, but that none of the other symptoms revealed in the test were present before the blow to the head. She recommended that he undergo speech, occupational and physical therapy. After he went to eight months of therapy, she retested him. At that time, he showed a great deal of improvement. The fact that he showed improvement was inconsistent with someone trying to fake results. After therapy, however, he was still having problems with speech, particularly when he was stressed. He also still continued to have some word finding problems, problems with attention and concentration, and problems multitasking. He was prone to being confused when he had trouble figuring out what words meant.

|8Pr. Andrews testified that it is true that a number of people who have mild concussions or mild injury do not have long-term problems; however, in some cases they do. Someone like Ezzell who is already fairly fragile because of his age and his medical history, is likely to have long-term problems. And when such an individual improves over time, this indicates that something caused the initial problem. She did not believe that Ezzell was faking his symptoms. She thought he was giving full effort each time she tested him. Her diagnosis is that he has a cognitive disorder, not otherwise specified, bipolar disorder by history, and that part of his cognitive disorder was his expressive aphasia. He also has sleep problems. Her prognosis is that he has reached maximum improvement. She was asked whether she believed to a reasonable degree of neurop-sychological expert probability that Ezzell suffered debilitating cognitive damages as a result of the punch by Miranne. She replied affirmatively.

On cross-examination, she admitted that the larger percentage of people who have mild injury to the brain are fully recovered within about three months to a year. She agreed that the majority of individuals who alleged cognitive deficits more than three months after an injury where there is no loss of consciousness and no amnesia are reportedly associated only with those persons who are involved in litigation or who are seeking compensation. She did not, however, believe that this was the case with Ezzell.

On redirect examination, she agreed that the literature stated that for most people, post-concussion syndrome symptoms resolves within three months, although, symptoms can persist for a year or more. If these symptoms continue or- persist for two years or more, as in Ezzell’s case, the likelihood is that they are permanent. She agreed that the medical research generally supports the concept that chronic post-traumatic headaches and post-concussion syndrome are the result |9of an injury to the brain. And, that often the injuries are subtle that they cannot be seen on CT’s or MRIs but can be demonstrated by neuropsychological testing.

In May, 2008, Ezzell saw Anna Lee Zorthian, a speech pathologist specializing in brain injury patients, at Touro Hospital. She noted that he stuttered, was slow of speech, mixed up words and sounds, and had writing problems. Testing showed a moderate short term memory deficit and reasoning problems. She treated him three times per week from May to October, 2008, and then twice a week through January, 2009. She discharged him from therapy in February 2009. She felt that he could do just as well with the home program that she developed for him. Although she discharged him in February 2009, he returned August 26 to September 26, 2009. He wanted to see if there is anything new that he could do. She tested him again and found nothing had really changed. Between the time that she discharged him in February 2009 until September 2009, he was slightly improved. But, the cognitive deficits persisted and had not changed. She last saw him in September, 2009, at which time she found him still moderately impaired, but somewhat better than when treatment began. She found his complaints to be consistent with that of other head injury patients that she had seen.

In August, 2008, while Ezzell was undergoing therapy, he saw Dr. John Thompson, a forensics psychiatrist, to ascertain whether there were psychiatric problems that might respond to treatment. This doctor reviewed all of the medical records and concluded that the treatment he was receiving was appropriate. In a nutshell, he found that Ezzell came to the punching incident with some pre-existing conditions. One of these was bipolar disorder. After the punching, he experienced additional symptoms, some of which were consistent with his bipolar disorder and some of which were consistent with post-traumatic stress disorder. Dr. Thompson thought that Ezzell would have a hard time returning to work. . Although Ezzell J^appeared to be relatively stable on his biPolar medications, that plus the cognitive deficits make it difficult for him to return to the level of employment that he had before the incident. He also stated that the idea that Ezzell was a malingerer was “preposterous.” He agreed with Dr. Andrew’s analysis that the fact that he improved on the second testing by her indicated that he was not a malingerer.

Prior to trial in April, 2010, Dr. Andrews reviewed again all of Ezzell’s medical records. She noted that Ezzell had been treated for his bipolar disorder since 2003 by Dr. Alvin Rouchell, a psychiatrist. This doctor’s records showed that he placed Ezzell on a regime of medications to control his mood swings and depression. However, nothing in those records showed that Ezzell had ever complained of any of the verbal and cognitive symptoms that developed after he was struck. Dr. Rouc-hell confirmed this observation in his testimony.

Dr. Rouchell testified that before January 2008, Ezzell had not had, to his knowledge, suffered or expressed to him problems with headaches, stuttering, forgetfulness, trouble pronouncing and finding words, or tremors. This doctor never saw any of those symptoms before then. The symptoms were absolutely not a result of his bipolar condition. He thought that the depression Ezzell suffered before 2008 became worse after January 2008. In his opinion, Ezzell’s bipolar condition has been stable and under control since January 2008. He testified the last time that he saw Ezzell was March 4, 2010. Since the stuttering, memory problems, and comprehension problems were not there before the incident, he assumed in his opinion that they were related to the incident.

In April 2009, Dr. John Wakeman, a clinical neuropsychologist and chief of psychiatric services at Ochsner clinic, reviewed Ezzell’s records to see if this doctor could offer further treatment. Dr. Wake-man reviewed the past medical records. He noted the intense cognitive therapy Ezzell had received at Touro In Hospital and was of the opinion that he could not be of further service to Ezzell, and that he had reached maximum recovery. He believed that the primary contributing factor to his problem was the blow to the head. He testified that loss of consciousness is not considered necessary for traumatic brain injury, but this is a controversial issue among the experts.

The defense offered the testimony of three doctors, all of whom thought that Ezzell’s alleged symptoms were not reasonably related to the blow to his head.

Dr. Donald Sanders Adams, a neurologist, examined Ezzell on November 9, 2009. He also reviewed medical records. He checked his cranial nerves, which control facial movements as well as hearing, smell and taste, and found these normal. Coordination and fine motor skills were normal. He particularly noted that Ezzell claimed not to be able to do a “tandem” walk, i.e., putting one foot in front of the other, and demonstrated his awkwardness in this maneuver. However, he was able to stand on one foot at a time. He noted that Dr. Carol Barton, a neurologist, reported that his tandem gait was normal about two months after the injury, and the inconsistency with poor tandem gait at the time he saw him was “neurologieally impossible.” He opined that if a person had balance problems after moderate or severe head injuries, they would have them two months after the injury and not two years later. Also, he felt that a person could do both or neither, but not one and not the other. He also found that while Ezzell stuttered at first, after a while he became fluent. He noted that this behavior of improved fluency was reported as well by Dr. Barton, who saw him about two months after the injury. He also noticed that the stutter was atypical in cadence. He expressed concerns about Dr. Andrew’s test for malingering and found the results problematical. He explained that the first three hours are critical in assessing the level of brain injuries. When there is no loss of consciousness, anemia, or 112confusion, the injury was mild and would resolve itself in a short time. His conclusion was that there was no physical basis to explain how the injury could have caused persistent symptoms for the length of time involved here.

Dr. Julian Bailes, a neurosurgeon specializing in brain injuries, did not examine Ezzell, but he did review most of the medical records. He reviewed the East Jefferson General Hospital record. He determined that Ezzell did not suffer any loss of consciousness as a result of being struck by Miranne. He had no signs of amnesia, neurological deficits, or tremors. The approximate size of the laceration above his right eyebrow was two centimeters (2.54 centimeters is an inch). He agreed with Dr. Adams that there was no evidence of any permanent brain damage that could explain Ezzell’s symptoms. He also agreed that the first hours after an injury are when symptoms appear, not days or weeks later. As indicated from Dr. Moh-not’s records, testing was normal. Dr. Bailes disagreed with Dr. Mohnot’s diagnosis of mild cerebral dysfunction because the testing showed no traumatic abnormality. And he did not see in the history any loss of consciousness, amnesia, or any change in the level of alertness or the patient’s ability to function normally. He did not see any evidence in the history, physical exam, or any x-ray or any radio-graphic evidence by CAT scan or MRI that there was any permanent injury here. He has had experience with seeing or studying several thousand head injury cases. He believed that in order to have a mild traumatic brain injury, there must at least be a mild concussion. One of the signs of concussion is to be knocked out or to lose consciousness. He did not see that in this case. Based on medical records and the history, he would not have diagnosed him as having a concussion. He did not believe that Ezzell had a long-term chronic brain damage. Ezzell had a normal examination right after the incident when he went to the hospital.

11sOn cross-examination, he testified that he reviewed the neuropsychological testing on Ezzell by Dr. Andrews, but he did not agree with it. He also testified that the lack of abnormal findings on MRI or a CT scan of the brain did not conclusively mean that a head injury had not occurred. Mild head trauma could have negative findings on radiographic studies such as a CAT scan and MRI. Mild head trauma headaches are one of the symptoms of mild head trauma. In general, a blow to the head and fall to the floor can cause a mild head injury. If Ezzell had an alteration of consciousness, it is most likely that he sustained a concussion. On redirect examination, he testified that he did not see in the medical records any indication that Ezzell had an alteration of consciousness.

Dr. Megan Ciota, a neuropsychologist, examined all of the records. She, too, noted that there was no loss of consciousness (as did Drs. Bailes and Adams) or amnesia immediately after the trauma. Her opinion was that the injury was “mild at worst” and that such injuries do not cause permanent problems. She also found from the results of Dr. Andrew’s test that Ezzell was exerting poor or sub-optimal effort during the tests. Finally, she cited a substantial body of literature on mild brain injuries which generally concluded that almost all people with such injuries who suffered long-term symptoms were either involved in litigation or were suffering from some pre-existing psychological problems.

In regard to Ezzell’s work performance, Robert Winn, Ezzell’s supervisor at CNA, testified that Ezzell was hired in 2003. Winn testified about Ezzell’s work performance before and after the incident. He said that Ezzell was one of his best adjusters and handled a substantial workload. He said that he knew of the bipolar problem, and that it never to his knowledge interfered with work. After the incident, he noted that Ezzell could not perform his job. He placed him on short-term disability in February 2008 and converted back to long-term disability which [ 14ran until August 2008. At that point Ezzell was terminated. He said that Ez-zell wanted to come back to work, but he simply could no longer do the job. He listed Ezzell’s salary, including bonuses, at about $70,000 per year.

Todd M. Powers, a Cincinnati attorney, testified that around 2003, he began working with Ezzell on claims. Ezzell excelled as a claims representative. Powers saw no problems with Ezzell’s memory and Ezzell never mentioned he suffered from headaches. Before the incident, Powers saw no problems with Ezzell’s ability to formulate ideas. Powers has had telephone conversations with Ezzell and has seen Ezzell on occasion after the incident. Powers testified that he was troubled by the change in Ezzell after the event. After that, Ezzell was difficult to understand. Ezzell was halting in speech. He had memory problems such as difficulty remembering names and articulating words. Powers saw a remarkable difference after the incident.

In regard to his employability, Ezzell, who was 55 years of age, saw Thomas Meunier, a vocational rehabilitation expert, on December 26 and 29, 2008. Mr. Meunier was given a history of Ezzell’s work experience and found that his employment with CNA as a marine insurance claims adjuster was a highly skilled position. He administered a number of tests, and found very sub-par reasoning and problem-solving skills, low language skills, as well as visual and auditory perceptual deficits. He also found him emotional and sad. His conclusion then was that he was unemployable, even at unskilled labor, at that time. He saw him again several months later in August 2009, and did not change his opinion. He testified at trial that if Ezzell was not better by then, then he did not anticipate any improvement in his employability. He also found Ezzell truthful and extremely motivated to do well on the testing and ruled out malingering.

|1BPr. Kenneth Boudreaux, a professor of finance and economics, testified that his estimate for the total past and future economic loss of earning capacity is $1,646,403 based on a retirement age of 75. With a retirement age of 70, that figure would be $1,296,111. Among the factors he considered was Ezzell’s 2007 income of $70,676, which had been relatively stable in the years prior to that. In addition to the $70,000, he also had approximately $14,000 of coaching earnings. He separated past lost earnings from future lost earnings. Past lost earnings is mostly just an arithmetic calculation. From the date Ezzell was last paid in mid-February 2008 up until mid-June 2009, he simply multiplied the wage base, the $84,700, by that period of time and arrived at $114, 110. His past wage loss was $114,110.

Dr. Boudreaux calculated the loss of future earning capacity. If Ezzell would have worked until he was 70 years of age, his future loss of earning capacity would be $1,031,028. If he had worked until age 75, the amount would be $1,340,518.

If he were to calculate the amount of fringe benefits, his figures would change. There would be an additional 15.8% as fringe benefits added to the wages. For past wages, that would be an additional $15,043. At age 70, future wages would add an additional $135,900 to the amount. At age 75, an additional amount of $176,730 would be added. The total loss, including the benefits, past and future, if he assumed that Ezzell worked until age 70, is $1,296,111. If he assumed he would worked until age 75, the past and future loss totals $1,646,403. He based the 70 and 75 years as requested by Ezzell’s counsel rather than use 65 or 63.

On the basis of the above evidence, the jury awarded Ezzell $25,000 for past pain and suffering, $140,000 for past lost wages, and an additional $140,000 for future lost wages. They also awarded him $130,513.69 in medical costs. Miranne | purges here that the awards for past and future lost wages are not supported by the evidence and that the medical bills submitted were in part payment for expert testimony, rather than treatment actually rendered. Ezzell argues that the lost wages are too low, and that the jury verdict is inconsistent in awarding future lost wages without a corresponding award for future pain and suffering.

As a general rule, awards for past and future lost wages are considered special damages, i.e., those which can be established to a reasonable mathematical certainty. Cottle v. Conagra Poultry Co., 06-1160, p. 3 (La.App. 3 Cir. 3/14/07), 954 So.2d 255, 256 (citation omitted). When a trier of fact assesses such damages, while the discretion is more limited than that for general damages, the standard of review is still that of abuse of discretion. Id., citing Wainwright v. Fontenot, 00-492 (La.10/17/00), 774 So.2d 70. Also, in reviewing a jury’s factual conclusions with regard to special damages, there must be a reasonable factual basis for these conclusions and they must not be clearly wrong. Guillory v. Ins. Co. of North America, 96-1084 (La.4/8/97), 692 So.2d 1029, 1032.

In the present case, the evidence showed that Ezzell was earning just under $70,000 per year in his job with CNA. There was also evidence that he earned about $14,000 coaching soccer teams, but these earnings had been on a steady decline during the previous several years. In awarding $140,000 in past wages, it is evident that the jury determined that the injury had resulted in this loss of earnings for about two years. The injury was on January 4, 2008, and trial was in April, 2010, a little over two years later, but there was also testimony that Ezzell had received short and long term disability payments for some of this period, so the two year figure was reasonably based on the evidence. All of his treating physicians were of the opinion that the blow to the head was responsible for the various symptoms that rendered him incapable of employment during that time. |17Although there was conflicting testimony on this point, it was reasonable for the jury to accept the opinions of plaintiffs doctors rather than those of the defendant’s experts. Plaintiffs credibility was challenged by defense witnesses. In light of the conflicting nature of the evidence presented at trial, we cannot say that the jury’s verdict was unreasonable. In this circumstance, we may not set aside these credibility determinations. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 881 (La.1993). Because there was a reasonable basis for the award, we must affirm it.

It similarly appears that the jury found that Ezzell would be incapable of returning to work for another two years because it awarded him an additional $140,000 for future lost wages. Again, the inquiry is whether there was a reasonable basis for this finding, and whether it is manifestly erroneous. The testimony of plaintiffs experts was that Ezzell was permanently disabled from ever returning to work of any kind, and that he had reached maximum recovery by the time of trial. Defendant’s experts were equally in agreement that the nature of Ezzell’s injury could not have caused the symptoms for more than a few months. Dr. Adams testified that the fact that Ezzell claimed he could not do the tandem walk, i.e., putting one foot in front of the other, but could stand on one foot, was impossible from a neurological standpoint. He noted that he found it strange that Ezzell stuttered at the beginning of his examination, but then began speaking normally, and he further noted that there was an unusual cadence in the stuttering. He also found fault with Dr. Andrews’ tests for malingering. Similarly, Dr. Ciota believed plaintiff to be a malingerer. Dr. Bailes found no physical explanation for Ezzell’s complaints. It is apparent that the jury was not convinced that Ezzell was permanently disabled, but equally apparent that it believed that he had suffered an injury sufficient to prevent his return to work for another two years. In this Court’s |18view, this was a reasonable compromise based on the disputed expert opinions. And as with past lost wages, because we find no clear error in this award, we must affirm it.

Plaintiff, for his part, urges that the award for future wages without a corresponding award for future pain and suffering and mental anguish constitutes an impermissible inconsistency. The issue of whether general damages must always accompany an award for special damages was discussed at length in Wainwright v. Fontenot, supra. There, the court concluded that there is no bright line rule, but rather that each case depended on its particular facts. It noted that there are two lines of cases involving this question. One line, exemplified by Bienvenu v. State Farm Mut. Auto. Ins. Co., 545 So.2d 581 (La.App. 5th Cir.1989), involves situations where a plaintiff has objective symptoms of injury. In such cases, the jury errs in awarding medical expenses, but no general damages. The other line of cases, including Wainwright v. Fontenot, involves situations where a plaintiff seeks medical attention to ascertain whether he has indeed suffered injuries. If a jury finds that there were no injuries, it may still award medical expenses to a plaintiff who has sought medical advice to insure that he was not injured.

The present case falls into the first category. There is no question that the jury found that plaintiff would not be able to return to work for two years. The only way that it could have reached this conclusion was by finding that he was still suffering in some degree from the symptoms brought about by the blow. In this circumstance, the jury abused its discretion in not making a general damage award for future pain and suffering.

Having determined that it was improper not to award general damages, the next question is what amount would fairly compensate plaintiff for these damages. In Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1258, 1260-61 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994), the court set forth the analysis to be used by appellate courts in fixing awards when the trier of fact has abused its much discretion. The court noted that the inquiry must first be on the particular effects of the particular injuries on the particular plaintiff at hand. Only after the appellate court, for articu-lable reasons, determines that the trier of fact abused its much discretion may the court turn to awards made in similar cases for guidance, but always keeping in mind the particular facts of the case under review. Moreover, in making the award, the court may only fix it at the lowest amount reasonable on the record where the fact finder has made too low an award, or at highest reasonable amount when the fact finder has made too high an award.

Here, we have determined that the jury abused its much discretion in making no award for future pain and suffering. We now turn to cases involving similar damages to determine what the lowest award should reasonably be, keeping in mind all of the particular circumstances of the case. In Brasseaux v. Town of Mamou, 97-1540 (La.App. 3 Cir. 5/20/98), 713 So.2d 742, 745, 755, reversed on other grounds, 99-1584 (La.1/19/00), 752 So.2d 815, plaintiff was struck in the head with either a pool cue or a Billy-stick during an altercation at a bar, and suffered a closed cranial injury. His diagnosis was post-concussive syndrome with cognitive disorders. His symptoms included significant memory loss, attention and concentration deficits, cognitive decline, emotional and behavioral changes, depression, and headaches. These symptoms rendered him at least partially-permanently disabled. The court found that a $250,000 award for general damages was reasonable. In Smith v. Lee, 00-1079 (La.App. 5 Cir. 4/11/01), 783 So.2d 642, 643-44, 645-46, writ denied, 01-1731 (La.9/28/01), 798 So.2d 116, plaintiff was struck in the head by a low lying tree branch during a parade. Her symptoms 12nincluded severe migraine headaches several times per month, depression and a speech disorder. The headaches were predicted by her doctor to persist for her lifetime. The jury awarded her $16,000, which the trial judge raised by way of a JNOV to $200,000. The appellate court ruled that $100,000 was the highest award reasonable on the record.

In the present case, plaintiffs symptoms are similar to those suffered in Brasseaux, supra, except that they are not permanent. As per the jury verdict, Ezzell’s symptoms are expected to be resolved during the next two years. Similarly, in Smith, supra, the headaches are deemed to be permanent, while here they are not. Considering the entire record before us, we deem that the lowest reasonable amount that the jury could have awarded for future pain and suffering is $75,000, and we therefore amend the judgment in Ezzell’s favor by this amount.

The final issue here concerns the medical bills. A tortfeasor is required to pay for the medical treatment of the victim, and even for overtreatment or unnecessary treatment, unless such treatment was incurred by the victim in bad faith. Lombas v. Southern Foods, Inc., 00-26 (La.App. 5 Cir. 5/30/00), 760 So.2d 1282, 1289-90. The victim’s burden is to show by a preponderance of the evidence that the expenses were incurred because of the injury. Id. at 1290. Here, the defendant does not contest the bills for Doctors Zorthian and Mohnot. He argues that Dr. Andrews only tested Ezzell and that this did not constitute treatment. We disagree. Dr. Mohnot referred him to Dr. Andrews for testing to determine more precisely his condition. Dr. Andrews in turn recommended that he undergo rehabilitation treatment at Touro Hospital. These services were clearly related to plaintiffs treatment, and are therefore recoverable.

As to whether Dr. Andrew’s bills should be included in the special damages, we note that it is not uncommon for treating physicians to refer patients to doctors in other specialties for examinations and consultations or reports. See: Akerman v. Dawes, 94-0757 (La.App. 4 Cir. 1/19/95), 658 So.2d 1270, 1275. This allows the treating physician the benefit of the other doctors’ specialized expertise. Put most directly, there is no indication in the record that any of the examinations was not medically necessary or advisable. Thus, the charges for the examinations for the “non-treating” physicians are recoverable. Id.

With regard to Dr. Thompson, he was asked to examine Ezzell to determine if there were any treatments that he might render to improve Ezzell’s mental state. Although Dr. Thompson did not render actual treatments, he did not do so because he felt that there was nothing that he could do. Again, this visit was for potential treatment, and is therefore com-pensable. Similarly, Mr. Meunier, a vocational rehabilitation expert, was asked to see Ezzell to determine whether he would profit from some form of rehabilitation. This expert, like Dr. Thompson, did not feel that Ezzell would profit from such an exercise, and so did not attempt to render further services. While rehabilitation is not precisely medical treatment, it is nonetheless treatment that could potentially restore a victim’s ability to return to work, and thus is an item for which a tortfeasor is liable. Ezzell clearly met his burden of showing that the above expenses were all related to the injury he received.

Appellant also argues that the hospitalization at Touro Hospital due to chest pains and shortness of breath was clearly unrelated to the incident. Ezzell testified that he has suffered from tremors since the date of the incident although the tremors have calmed down tremendously. At one point, the tremors caused him to be hospitalized for four days. This was around October 2008 or 2009. Zorthian testified that on October 15, 2008, Ezzell was hospitalized at Touro Hospital. During a therapy session with her, Ezzell began shaking, having shortness of breath, and complaining of chest pain. Furthermore, in July 2008, Ezzell | ^complained of tremors to Dr. Mohnot. Although appellant focuses on the shortness of breath and chest pain symptoms, both Zorthian and Ezell stated that he was also shaking. The jury could have reasonably credited Ezzell’s account that he went to the hospital in order to receive treatment for tremors that had not been present before the accident.

Finally, appellant questions Dr. Rouchell’s treatment costs as unrelated to the accident because Ezzell had a preexisting bipolar disorder. Dr. Mohnot testified that in his opinion, Ezzell’s age and bipolar disorder, along with some other predictors like pre-existing psychological problems, definitely made it difficult to treat his symptoms and symptoms would last much longer than those experienced by a younger person with no previous medical history. Dr. Rouchell testified that he treated Ezzell for “sequella” from the incident. He explained that at the time of trial he recommended that Ezzell continue receiving psychotherapy — treatment the doctor had provided — for the stressors in his life related to the incident. According to Dr. Rouchell, the depression had been more persistent, harder to manage, and more difficult to treat due to the effects of the incident where Ezzell was struck by Miranne. Thus, the jury could have reasonably found that Dr. Rouchell’s treatment expenses were related to the injury Ezzell received.

Accordingly, with the exception of the general damage award for future pain and suffering, which we amend, we affirm the other awards.

Conclusion

For the foregoing reasons, plaintiff is awarded an additional $75,000 in damages for future pain and suffering. In all other respects, the judgment is affirmed.

AMENDED IN PART AND AFFIRMED AS AMENDED.


author: CLARENCE E. McMANUS, Judge.

text:
    Penny Brown REYNOLDS v. Randell BROWN.
    No. 11-CA-525.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 28, 2011.
    Rehearing Denied March 5, 2012.

      Robert R. Faucheux, Jr., Attorney at Law, Laplace, LA, for Plaintiff/Appellant.
    Fontella Fountain Baker, Attorney at Law, Laplace, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKS HOMBERG WICKER.
   CLARENCE E. McMANUS, Judge.

| ¡.Plaintiff, Penny Brown Reynolds appeals from the trial court’s ruling denying her Petition for Eviction and Removal of a Structure. For the reasons that follow, we affirm the decision of the trial court.

The property at issue is a tract of land located in the parish of St. John the Baptist. The tract (referred to as Parcel A) was purchased by Plaintiffs mother, Deforest M. Brown, on July 18, 1983. On that date, Ms. Brown sold a portion of the tract to plaintiff (referred to as Parcel B) and retained ownership of the remainder of the tract (referred to as Parcel C). Plaintiff and three sisters each obtained an undivided ⅜ interest in Parcel C after the death of Ms. Brown, by virtue of a judgment of possession rendered on September 11, 2008. They also inherited the trailer, located solely on Parcel C, which had been Ms. Brown’s residence. The trailer, but not the land, was sold to defendant, the maternal uncle of plaintiff and her sisters.

| ¡Plaintiff instituted this action by the filing of a Petition for Eviction and Removal of Structure . In her petition, she alleged that a trailer owned by Defendant sits in part on land owned by her. She further alleged that defendant erected a structure (patio/bar) on property owned by her, without her expressed consent. She originally sought removal of both the trailer and the structure.

Initially, after a hearing, the trial court conditionally granted plaintiffs petition, subject to the results of a survey, as the record was devoid of any evidence proving the actual boundaries of the parcels. Thereafter, the trial court granted a new trial, conceding that it was error to conditionally grant the petition in the absence of a survey delineating property boundaries.

A new trial was held, at which time the transcript of the previous trial was admitted into evidence. The trial court denied plaintiffs petition, find that the action was more akin to a petitory action than a pos-sessory action, and that plaintiff had failed to meet all of the elements necessary to maintain a petitory action.

In this appeal, plaintiff alleges that the trial court erred in considering plaintiffs action as a petitory action, and in applying the burden of proof necessary in a petitory action; that the trial court erred in failing to find plaintiffs title sufficient and in failing to rule that the improvements on her property were hers as a matter of law; and in holding that defendant could not be evicted in the absence of a lessorfiessee relationship.

The following facts were adduced from the evidence presented at the two trials.

Randell Brown, defendant herein, stated that he does not own the property, and he does not have a written lease or other agreement with the plaintiff or with her sisters. He testified that his mother and father purchased tract A in 1946, and 14that Ms. Brown (his sister) purchased the property in 1983. He was unaware that Ms. Brown sold a portion to plaintiff at that time.

Defendant testified that the family would gather at the property and in 1982, he began building a structure for family parties. The intent was to provide restroom accommodations for the family without the necessity of them having to utilize his mother’s home. He built a structure (classified by the testimony as a shed) with a kitchen and bathroom and also a covered patio. He worked on the project in stages until its completion in 1992. He further testified that he paid for the materials to build the project. During this time, Ms. Brown was aware the structure was being built, as was plaintiff, and that neither complained.

We also note that while defendant constructed the structures for the use of his family members, he was not reimbursed for his materials costs or for his time and labor.

Defendant stated that he purchased the trailer after Ms. Brown’s death, but not the property that it sits on. He did not discover plaintiffs ownership of Parcel C until she instituted suit in 2008. Furthermore, plaintiff did not request that he move the structure until 2008, which she also did via filing litigation.

Steven Flynn of Riverland Surveying Company, professional land surveyor, surveyed the tract in question. The results showed that the trailer was located totally on Parcel C, and did not extend into plaintiffs lot. The back of the structure, consisting of a portion of the covered concrete driveway was located on Parcel B. Mr. Flynn testified that when he conducted his survey, he divided Parcel A in half, believing that was the intent of the parties. However, the actual parcel is longer than the description in the Act of Sale, which provided that the parcel was 200 feet. As a result, plaintiffs parcel measures 107.56 feet. Flynn further stated |5that had he utilized the exact measure in plaintiffs Act of Sale, which was 100 feet from the rear property line, her parcel would be smaller by 7.56 feet.

Plaintiff testified that she was a resident of Atlanta, Georgia, and had been so for the last twenty-two years. Plaintiff testified that the structure was originally built to accommodate family parties, and was done so with her mother’s permission. Plaintiff testified that she had knowledge of the structure from the time it was constructed. Her mother had passed away six years prior to trial. In 2005, after her mother’s death, she and her sisters sold the trailer, but not the land, to defendant. She did not tell defendant to remove the structure at that time.

Plaintiff testified that she continually paid taxes on the property since its acquisition. She did not send Mr. Brown money to maintain the property (i.e. mow the grass) because she felt that it was his responsibility since he was there.

Plaintiff testified that in the previous two years, she desired that the structure be removed. She admitted that she did not request that the structure be removed until 2008. Plaintiff stated that she did not tell anyone at the time she purchased the property from her mother, but she thought he mother had.

In her first three allegations of error, plaintiff alleges that the trial court erred in finding that this matter was a petitory action, in applying the inappropriate burden of proof, and in failing to recognize plaintiffs apparent title.

Plaintiff contends that her action is one of possession, and not a petitory action. Plaintiff instituted this action by the filing of a pleading captioned Petition for Eviction and for Removal of a Structure, alleging that defendant had erected a structure on property belonging to her, and seeking an order requiring defendant to “vacate the premises and tear down and remove the structure that is currently erected on [her] property.”

| r,Louisiana is a fact pleading state that values substance over form and does not require the use of magic titles or terminology as a threshold requirement for validly pleading an action. Wheat v. Nievar, 07-0680 (La.App. 1 Cir. 2/8/08), 984 So.2d 773. Courts should look through the caption of pleadings in order to ascertain their substance and to do substantial justice to the parties. Smith v. Cajun Insulation, 392 So.2d 398, 402 n. 2 (La.1980). The trial court has a duty to recognize the true nature of the pleadings. Louisiana Livestock Sanitary Bd. v. Johnson, 372 So.2d 585 (La.App. 3 Cir.1979), writ denied 373 So.2d 967 (La.1979). Because our civil procedure is based on fact pleading, LSA-C.C.P. arts. 854 and 891, the courts must look to the facts alleged to discover what, if any, relief is available to the parties. Carter v. Benson Automotive Co., Inc. 94-261 (La.App. 5 Cir. 9/27/94), 643 So.2d 1314.

Plaintiff alleges that this is a possessory action brought pursuant to LSA-C.C.P. Art. 3655, which provides that “The pos-sessory action is one brought by the possessor of immovable property or of a real right therein to be maintained in his possession of the property or enjoyment of the right when he has been disturbed, or to be restored to the possession or enjoyment thereof when he has been evicted.”

Plaintiff contends in this appeal, that she is in possession of the property in question by virtue of having paid the taxes on the property for the last 27 years. This, along with her title acquired in 1983 is sufficient to prove that she possesses the property. However, as noted by court in Simpson v. Davidson, 35,048 (La.App. 2 Cir. 10/31/01), 799 So.2d 652, 656-657, noted that

When a party possesses part of an immovable by virtue of a title, he constructively possesses to the limits of his title. La. C.C. art. 3426; Winjum v. Duplantis, 393 So.2d 405 (La.App. 1st Cir.1980). However, he cannot depend on constructive possession to defeat adverse corporeal possession by another for a sufficient period of time to establish prescriptive title. Whitley v. Texaco, Inc., 434 So.2d 96 (La.App. 5th Cir.1982), writ denied, 435 So.2d 445 (La.1983). This follows from the rule that property cannot be Illegally possessed by adverse parties simultaneously, and constructive possession cannot prevail over adverse corporeal possession. Tenneco Oil Company v. Pitre, 496 So.2d 502 (La.App. 1st Cir.1986), writ denied, 497 So.2d 1388 (La.1986).

It is undisputed in the record that defendant is in, and has been, in corporeal possession of the property. Furthermore, plaintiff -by her own admission,, states that defendant’s possession is adverse to her interests, as she states in her petition that “defendant, Randell Brown, erected/built a patio/bar on the aforementioned property belonging to petitioner, Penny Brown Reynolds, without the expressed consent or permission of your petitioner.”

LSA-C.C.P. art. 3651 provides that “The petitory action is one brought by a person who claims the ownership, but who is not in possession, of immovable property or of a real right therein, against another who is in possession or who claims the ownership thereof adversely, to obtain judgment recognizing the plaintiffs ownership.”

Given that the facts of this case, as pled are that plaintiff is the owner of certain immovable property and that defendant has possessed such property by virtue of the erecting a structure on the property, and that plaintiff, as owner, desires that the structure be removed, (or that the possession be discontinued), we agree with the trial court’s conclusion that the facts as pled support a petitory, rather than a pos-sessory action.

Furthermore, plaintiff cannot maintain an alternative possessory action. LSA-C.C.P. art. 3657 specifically provides that a plaintiff may not cumulate a 1 spetitory and the possessory action in the same suit, and he cannot plead them in the alternative. If both are pled, the posses-sory action is waived.

LSA-C.C.P. Art. 3653 provides:

To obtain a judgment recognizing his ownership of immovable property or real right therein, the plaintiff in a petitory action shall:

(1) Prove that he has acquired ownership from a previous owner or by acquisitive prescription, if the court finds that the defendant is in possession thereof; or

(2) Prove a better title thereto than the defendant, if the court finds that the latter is not in possession thereof.

When the titles of the parties are traced to a common author, he is presumed to be the previous owner.

In the case of Langley v. Billiot, 09-433 (La.App. 5 Cir. 11/24/09), 28 So.3d 1154, 1157, this court set forth the burden of proof in a petitory action such as this one:

In Pure Oil Co. v. Skinner, 294 So.2d 797 (La.1974), our supreme court held that a plaintiff not in possession versus a defendant who is in possession is required “to show good title against the world without regard to the title of the party in possession.” 294 So.2d at 799. Title is made out when an unbroken chain of valid titles from the sovereign is shown. Whitley v. Texaco, Inc., 434 So.2d 96, 103 (La.App. 5 Cir.1982), writ denied, 435 So.2d 445 (La.1983).
“The case law is clear that ‘title good against the world’ means one must produce an unbroken chain of record title back or show ownership through acquisitive prescription.” Cuny v. Quinn, 03-649, p. 5 (La.App. 5 Cir. 10/28/03), 860 So.2d 232, 237.

Here, the only evidence presented by plaintiff to show title was the act of sale by which she acquired title from Ms. Brown. This is insufficient to prove good title against the world as mandated by Pure Oil Co., v. Skinner, supra.

Plaintiff next argues that the trial court erred in finding that she could not maintain an eviction proceeding in the absence of a lease agreement. The parties do not dispute that no lease agreement was entered into between plaintiff and defendant.

|9In the case of Moody Inv. Corp. v. Occupants of 901 East 70th St., 43,396 (La.App. 2 Cir. 8/13/08), 990 So.2d 119, the court said that

In an eviction proceeding against an occupant, the petitioner is required to make a prima facie showing of title to the property, prove that the defendant is an occupant as defined in La. C.C.P. art. 4704, and show that the purpose of the occupancy has ceased. R & R Land Company v. Lawson, 427 So.2d 1356 (La.App. 2d Cir.1983).

As plaintiff has not sufficiently proved title, she has not born the burden of proof necessary to evict defendant.

We find that the trial court did not err in denying plaintiffs Petition for Eviction and Removal of Structure. Accordingly, the judgment of the trial court is affirmed. All costs are assessed against appellant.

AFFIRMED

      . In her petition, plaintiff states that she initially instituted suit in Justice of the Peace Court, however, that court ruled that it had no jurisdiction.

      . The structure and the patio are covered by one continuous roof.

      . LA-C.C.P. art. 3657 states:
      The plaintiff may not cumulate the petitory and the possessory actions in the same suit or plead them in the alternative, and when he does so he waives the possessory action. If the plaintiff brings the possessory action, and without dismissing it and prior to judgment therein institutes the petitory action, the pos-sessory action is abated.
      When, except as provided in Article 3661(l)-(3), the defendant in a possessory action asserts title in himself, in the alternative or otherwise, he thereby converts the suit into a petitory action, and judicially confesses the possession of the plaintiff in the possessory action.
      If, before executory judgment in a possesso-ry action, the defendant therein institutes a petitory action in a separate suit against the plaintiff in the possessory action, the plaintiff in the petitory action judicially confesses the possession of the defendant therein.


author: PAINTER, Judge.

text:
    Deloris K. STENSON v. PAT’S OF HENDERSON SEAFOOD.
    No. 11-1148.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 2012.

      Michael D. Bass, Attorney at Law, Opel-ousas, LA, for Defendants/Appellants, Pat’s of Henderson Seafood and Louisiana Retailers Mutual Insurance Company.
    Mark Zimmerman, Attorney at Law, Lake Charles, LA, for Plaintiff/Appellee, Deloris K. Stenson.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

Lin this workers’ compensation case, the employer appeals the Workers’ Compensation Judge’s (WCJ) award of indemnity benefits and medical expenses. The employee appeals the WCJ’s denial of penalties and attorney fees. She also asks for an award of attorney fees for work done on appeal. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Claimant, Deloris K. Stenson, was employed as a server at Pat’s of Henderson restaurant. She began working at Pat’s of Henderson on or about May 20, 2008, and she signed a drug test policy. On July 8, 2008, she was working the lunch shift and tripped over a box of potatoes in the “prep area.” She broke her left wrist in the fall. Immediately after the accident, she was taken to the emergency room. Pursuant to company policy, she was drug tested at that time. She tested positive for marijuana and Xanax. Pat’s of Henderson and its insurer, Louisiana Retailers Mutual Insurance Company, paid only the emergency room bill and denied all other benefits based on the positive drug test.

Stenson never returned to work at Pat’s of Henderson. However, she did return to work at McDonald’s in August of 2009, making approximately her pre-injury wage. The parties stipulated that the July 8, 2008 accident occurred in the course and scope of Stenson’s employment with Pat’s of Henderson. Following trial, the WCJ found that intoxication was not a contributing cause of the accident and awarded temporary total disability benefits and medical benefits from the date of the accident until she returned to work on August 17, 2009. The WCJ denied Stenson’s claim for penalties and attorney fees. , Defendants now appeal, asserting that the WCJ erred in failing to consider whether Stenson was intoxicated due to Xanax and in finding that Stenson had overcome the presumption of intoxication. Stenson appeals, asserting that the WCJ erred in denying her claim for penalties and attorney fees and seeking |2attorney fees for additional work done on appeal. For the reasons that follow, we affirm the ruling of the WCJ in its entirety.

DISCUSSION

In their first and second assignments of error, Defendants contend that the WCJ committed legal error in refusing to consider whether Stenson was intoxicated due to Xanax and that the WCJ committed manifest error in not finding that they had proven intoxication. Errors of law in a workers’ compensation case are reviewed de novo. Balseiro v. Castaneda-Zuniga, 04-2038 (La.App. 4 Cir. 8/17/05), 916 So.2d 1149, writ denied, 06-320 (La.04/28/06), 927 So.2d 288. It is well-settled that factual findings by the WCJ are reviewed under the manifest error-clearly wrong standard. Dean v. Southmark Constr., 03-1051 (La.7/6/04), 879 So.2d 112.

When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.

Rosell v. ESCO, 549 So.2d 840, 844 (La.1989),

We agree with Defendants that the fact that a drug is prescribed to claimant does not preclude it from consideration in determining whether the claimant was intoxicated at the time of the accident and that a claimant can be found to be intoxicated by a drug for which he or she has a valid prescription. See Chelette v. Sec. Indus. Ins., 94-815 (La.App. 3 Cir. 12/7/94), 647 So.2d 469. The WCJ, in oral reasons for judgment, stated that the prescribed drug, Xanax, was not at issue. Stenson suffered from a pre-existing back condition and had been prescribed Xanax in connection with treatment of this condition. She reported that she had taken Xanax on the date of the accident when the sample was collected for the drug screen. The WCJ noted that the drug test was “negative” for Xanax because Stenson had a valid prescription for that drug. The MRO Analysis Form, under “Lab Results” and “Finding” relative to benzo-diazepines, does indicate “neg.” Defendants argue that the |3WCJ should have considered whether it had provided sufficient evidence to prove that Stenson was intoxicated by Xanax rather than in simply concluding that Xanax was not at issue. We agree. However, we find that the WCJ’s error of law in not considering intoxication by Xanax was not prejudicial to Defendants in this case and did not interdict the fact-finding process. This is so because the WCJ correctly applied the presumptions required, as discussed below, regarding claimant’s having tested positive for marijuana use and because the expert testimony and other evidence presented did consider the use of Xanax. The WCJ determined that intoxication was not a contributing cause of this accident, and we cannot say that this conclusion was manifestly erroneous for the reasons that follow.

Louisiana Revised Statutes 23:1081 provides, in pertinent part, as follows:

(1) No compensation shall be allowed for an injury caused:
(b) by the injured employee’s intoxication at the time of the injury, unless the employee’s intoxication resulted from activities which were in pursuit of the employer’s interests or in which the employer procured the intoxicating beverage or substance and encouraged its use during the employee’s work hours, or
(2) In determining whether or not an employer shall be exempt from and relieved of paying compensation because of injury sustained by an employee for any cause or reason set forth in this Subsection, the burden of proof shall be upon the employer.
(5) If there was, at the time of the accident, evidence of either on or off the job use of a nonprescribed controlled substance as defined in 21 U.S.C. 812, Schedules I, II, III, IV, and V, it shall be presumed that the employee was intoxicated.
(6) The foregoing provisions of this Section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether the employee was under the influence of alcoholic beverages or any illegal or controlled substance.
14(8) In order to support a finding of intoxication due to drug use, and a presumption of causation due to such intoxication, the employer must prove the employee’s use of the controlled substance only by a preponderance of the evidence. In meeting this burden, the results of employer-administered tests shall be considered admissible evidence when those tests are the result of the testing for drug usage done by the employer pursuant to a written and promulgated substance abuse rule or policy established by the employer.
(12) Notwithstanding any language to the contrary, once the employer has met the burden of proving intoxication at the time of the accident, it shall be presumed that the accident was caused by the intoxication. The burden of proof then is placed upon the employee to prove that the intoxication was not a contributing cause of the accident in order to defeat the intoxication defense of the employer.

Thus, there are two applicable presumptions in this case: the first is a presumption of intoxication based on the existence of valid drug screen showing that Stenson tested positive for marijuana, and the second is the presumption of causation under La.R.S. 23:1081(12). Since Defendants met the burden of proving that claimant was intoxicated at the time of the accident by means of the presumption of intoxication, the burden then shifted to Stenson to prove that the intoxication was not a contributing cause of the accident. Based on the testimony that Stenson had performed her job all morning without complaints from the customers or any other staff members and that she had smoked marijuana four days prior to the accident, not on the day of the accident, we cannot say that the WCJ was manifestly erroneous in finding that Stenson had overcome the presumption of intoxication. Furthermore, we agree with the WCJ that the accident was not of the nature that any intoxication was a contributing cause. Boxes of potatoes were left on the floor in front of the microwave in the “prep area” where Stenson and other employees were required to go in the course of their duties. No one testified that Stenson appeared intoxicated at the time of the accident. Thus, the WCJ’s findings are supported by the record.

We now address Stenson’s claim that the WCJ erred in not awarding her penalties and attorney fees. Louisiana Revised Statutes 23:1201 provides for the | imposition of penalties and attorney fees but states that they shall not be awarded if the claim is reasonably controverted. The WCJ’s determination as to the imposition of penalties and the award of attorney fees is a factual determination that should not be disturbed on appeal absent manifest error. Rivers v. Bo Ezernack Hauling Contractor, Inc., 09-991 (La.App. 3 Cir. 3/10/10), 32 So.3d 1091, writ denied, 10-807 (La.6/4/10), 38 So.3d 309. Reliance on a positive drug screen can support a finding that the employer reasonably controverted the claim. Savoy v. Cecil Perry Imp. Co., 96-889 (La.App. 3 Cir. 2/5/97), 691 So.2d 692 and Barker v. Allen Canning Co., 95-252 (La.App. 3 Cir. 10/4/95), 663 So.2d 320, writ denied, 95-2688 (La.1/12/96), 666 So.2d 323. We find no error in the WCJ’s refusal to award penalties and attorney fees to Stenson.

Stenson also seeks attorney fees for work done on appeal. This court has recently recognized:

As a general rule, attorney fees are not allowed in Louisiana unless they are authorized by statute or provided for by contract. Sharbono v. Steve Lang & Son Loggers, 97-0110, p. 7 (La.7/1/97), 696 So.2d 1382, 1386. An award of attorney fees is a type of penalty imposed not to make the injured party whole, but rather to discourage a particular activity on the part of the opposing party. Id. Awards of attorney fees in workers’ compensation cases are essentially penal in nature, and are intended to deter indifference and undesirable conduct by employers and insurers toward injured employees. J.E. Merit Constructors, Inc. v. Hickman, 00-0943, p. 5 (La.1/17/01), 776 So.2d 435, 438; Williams v. Rush Masonry, Inc., 98-2271, p. 8-9 (La.6/29/99), 737 So.2d 41, 46; Sharbono at p. 7, 696 So.2d at 1386. Although the benefits in the Workers Compensation Act are to be liberally construed, penal statutes are to be strictly construed. Williams at p. 9, 737 So.2d at 46.

Langley v. Petro Star Corp. of La., 01-198, pp. 3-4 (La.6/29/01), 792 So.2d 721, 723.

“When an award for attorney fees is granted at a lower court level, the recipient of those fees is entitled to additional fees for work done on appeal. This keeps the appellate judgment consistent with the underlying judgment.” McFadden v. Import One, Inc., 10-952, p. 16 (La.App. 3 Cir. 2/9/11), 56 So.3d 1212, 1223 {citing Wilczewski v. Brookshire Grocery Store, 08-718, p. 18 (La.App. 3 Cir. 1/28/09), 2 So.3d 1214, 1226, writ denied, 09-456 (La.4/13/09), 5 So.3d 170.)

Robinson v. Calcasieu Parish Sch. Bd., 11-615, p. 4 (La.App. 3 Cir. 11/2/11), 77 So.3d 1059, 1064.

In this instance, the WCJ found that Defendants reasonably controverted Sten-son’s claim based upon the existence of a positive drug test, and we have upheld this finding on appeal. While Stenson’s attorney has performed additional work on appeal and successfully defended the judgment in his client’s favor, we are not authorized by any applicable statute or contract to award attorney fees, and attorney fees are not necessary in order to be consistent with the judgment below. Id. Accordingly, we must deny Stenson’s request for attorney fees for work done on appeal.

DECREE

For all of the foregoing reasons, the judgment of the WCJ is affirmed in its entirety. The parties are assessed their own costs for appeal.

AFFIRMED.