author: MOORE, J.

text:
    Johnny DAVIS and Connie Davis, Plaintiff-Appellees, v. Freda Johnson GREEN, Jameica Norwood, Wal-Mart Stores, Inc., Wal-Mart Associates, Inc., and State Farm Mutual Automobile Ins. Co., Defendant-Appellants.
    No. 44,033-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 25, 2009.
    Rehearing Denied April 2, 2009.

      Blanchard, Walker, O’Quin & Roberts by Paul M. Adkins, Scott R. Wolf, Shreveport, for Appellants.
    David C. Hesser, Alexandria, Steven L. Prejean Mayer, New Orleans, Smith & Roberts, L.L.P. by Steven E. Soileau, Shreveport, for Appellees.
    Before WILLIAMS, STEWART and MOORE, JJ.
   MOORE, J.

| ! Wal-Mart Louisiana, LLC appeals a judgment that found it vicariously liable for an auto accident caused by an off-duty associate in the parking lot of its store on Airline Drive in Bossier City. Finding legal and factual error, we reverse and render.

Factual Background

The associate, Freda Green, had been employed by Wal-Mart for seven years. On August 3, 2005, she completed her day’s work, clocked out and walked to the parking lot. She was using a friend’s car, a 1984 Olds Achieva, and left to pick up her child from daycare. After pulling out of her parking space, she drove across some parking lanes and came to a three-way intersection behind the Subway sandwich shop and Murphy Oil gas station on the northwest corner of the parking lot.

About this time, Johnny and Connie Davis were crossing that intersection in their 1997 Nissan Hardbody pickup. The Davises had the right of way. Green admitted that she either did not stop at all, or only slowed before pulling into the intersection; either way, she struck the driver’s side of the Nissan. She felt she was creeping along at about 5 mph, but the Davises estimated she was doing 25-30. The police report described damage to each vehicle as moderate.

Connie Davis, a 48-year-old mother of five, was on medical leave from her job as a dealer at Horseshoe Casino because of serious neck pain. She had undergone a cervical fusion in February 2005, and by the time of the accident in August had still not returned to work, but testified that she was feeling very good and hoped to resume dealing soon. The impact from Lthe collision, however, dealt her a serious setback, necessitating a second back surgery. At the time of trial in March 2008, she was still complaining of pain. Her husband, Johnny, also a dealer at Horseshoe, sustained only temporary injuries in the crash.

Marking the three-way intersection was a pole, but it had no stop sign attached. A Wal-Mart security guard testified that he reported this to his superiors, who should have relayed it to store management, but he could not confirm that this happened. Also, there was no word “STOP” painted on the pavement, as seemed to be required by the architect’s plan; however, there was a thick white stripe such as normally indicates “stop” on a parking lot. Ms. Green testified that she knew she was supposed to stop there but she just failed to do so.

Wal-Mart’s Associate Handbook listed various regulations affecting associates in the parking lot, whether on duty or off. Most of these (rules against having guns, alcohol or controlled dangerous substances in their ears, and against soliciting, profanity or harassment of customers) had no beai’ing on this accident. However, associates were required to park in designated spaces away from the entrance, to park only in the direction of traffic, not to cut across parking spaces, and to obey the 10-mph speed limit. Ms. Green and the store manager, Ms. Leon, testified that associates were required, even after they clocked out, to assist customers with questions or problems, in the store or on the parking lot, and they would be paid for any extra time spent resolving customer issues.

| fAction of the District Court

The Davises sued Ms. Green; Ms. Nor-wood, the owner of the Achieva; State Farm, which was both Ms. Norwood’s liability carrier and the Davises’ UM carrier; Adams Consulting Engineers, which designed the parking lot, and its insurer; and Wal-Mart. Early in the proceedings, State Farm tendered its limits on both policies; the Davises dismissed State Farm, Ms. Green and Ms. Norwood, reserving their rights against the other defendants. Adams filed an exception of prescription, urging the peremption of La. R.S. 9:2772; the Davises conceded that this claim was prescribed. The matter went to trial against Wal-Mart only.

After a two-day bench trial, the district court filed a written opinion acknowledging Ms. Green had clocked out prior to the accident, but that the premises were still under Wal-Mart’s control, including the parking lot. The court itemized various provisions of the Associate Handbook, especially its “regulations regarding the place and manor [sic] in which the employee is to park,” and the testimony about the associates’ duty while on break or after clocking out to assist customers. The court found that “until the employee completely leaves the premises that employee is a Wal-Mart representative.” The court then found, as applicable law, that “there is a reasonable period while an employee remains on the employer’s premises which is regarded as within the course and scope of employment.” As authority, the court cited Duncan v. South Central Bell Tel. Co., 554 So.2d 214 (La.App. 2 Cir.1989), writ denied, 559 So.2d 125 (1990), and Johnson v. Gantt, 606 So.2d 854 (La.App. 2 Cir.1992), writ denied, 608 |4So.2d 196 (1992). The court concluded that Ms. Green was acting in the course and scope of her employment with Wal-Mart when she collided with the Davises. The court further observed that Ms. Green was breaking the 10-mph speed limit and that no stop sign was present. The court assessed damages of $564,644.03 in favor of Ms. Davis and $26,598.76 in favor of Mr. Davis.

Without a hearing, the court denied Wal-Mart’s motion for new trial. This suspensive appeal followed.

Discussion: Applicable Law

By its first assignment of error, Wal-Mart urges the district court committed legal error in applying the wrong standard for vicarious liability. Wal-Mart submits that the standard quoted by the court (“There is a reasonable period while an employee remains on the employer’s premises which is regarded as within the course and scope of employment”) is not the standard for finding vicarious liability under La. C.C. art. 2320, but rather that for finding an accident work-related under the Workers’ Compensation Act. The case cited by the court, Duncan v. South Central Bell, supra, was a workers’ compensation case in which vicarious liability under Art. 2320 was never an issue. Wal-Mart shows that an employee’s misconduct may “arise out of and [occur] in the course of’ employment, entitling him to workers’ compensation under La. R.S. 23:1031, but still not occur “in the course and scope of’ employment to make the employer vicariously liable. In fact, this precise result occurred in Stacy v. Minit Oil Change, 38,439 (La.App. 2 Cir. 5/12/04), 874 So.2d 384. Wal-Mart shows that the other case | ficited by the court, Johnson v. Gantt, supra, involved an off-duty employee who was actually attempting to perform an employment duty; as Ms. Green was neither performing nor attempting to perform any employment duty, that case does not apply. Wal-Mart concludes that because the court committed legal error, its findings are subject to de novo review.

The Davises respond that in determining whether an employment relationship exists, the most important element is the employer’s right of control, whether exercised or not. Savoie v. Fireman’s Fund Ins. Co., 347 So.2d 188 (La.1977); Woolard v. Atkinson, 32,322 (La.App. 2 Cir. 7/16/08), 988 So.2d 836. They reiterate that by 16 separate directives in the Associate Handbook, Wal-Mart dictated where Ms. Green could park and how fast she could drive, prohibited her from driving over parking spaces, and most tellingly required her to help customers even when she was off-duty, and paid her for it; all these things subjected her to Wal-Mart’s control. The Davises also dispute that there is any dichotomy between the tort concept of vicarious liability and the workers’ compensation concept of “arising out of and in the course of,” urging that this court used the terms interchangeably in Johnson v. Gantt, supra. They dispute the need for de novo review, and argue that the district court’s findings are not manifestly erroneous. Russell v. Noullet, 98-0816 (La.12/1/98), 721 So.2d 868; Stobart v. State, 92-1328 (La.4/12/93), 617 So.2d 880.

We are constrained to agree that the district court applied the wrong law to this case. The court’s guiding principle, taken from Duncan v. South Central Bell, is the standard of workers’ compensation liability under La. |fiR.S. 23:1031. It has no bearing on a tort claim based on vicarious liability under C.C. art. 2320. Further, we reject the suggestion that the principles are the same. Since the rendition of Duncan, this court has repeatedly held that the “work-related” standard for compensation liability is broader than, and not to be confused with, the “course and scope” standard for vicarious liability. Mitchell v. AT & T, 27,290 (La.App. 2 Cir. 8/28/95), 660 So.2d 204, fn. 5, writ denied, 95-2474 (La.12/15/95), 664 So.2d 456; Stacy v. Minit Oil Change, supra; see also, Malone & Johnson, Workers’ Compensation (13 La. Civ. Law Treatise, 4 ed.), § 144, fn. 1. We also find that the other authority cited by the district court, Johnson v. Gantt, simply does not state the proposition for which it is cited.

From a plain reading of the district court’s written reasons, we are convinced that an application of the wrong law misguided its legal analysis and influenced its factual findings. We are therefore obligated to review the entire record under the correct legal standard. Evans v. Lungrin, 97-541 (La.2/6/98), 708 So.2d 731.

Course and Scope of Employment

By its second assignment of error, Wal-Mart urges that the court erred in finding Ms. Green within the course and scope of her employment when the accident occurred. Wal-Mart contends that the proper interpretation of La. C.C. art. 2320 is that vicarious liability “will attach only if the employee is acting within the ambit of his assigned duties and in furtherance of his employer’s objectives.” Weanien v. Viverette, 35,446 (La.App. 2 Cir. 12/5/01), 803 So.2d 297. Ms. Green was off-duty, leaving the premises and |7on a completely personal mission, satisfying none of the criteria set out in Orgeron v. McDonald, 93-1353 (La.7/5/94), 639 So.2d 224. Further, under the “coming and going” rule, an employee leaving work in her own car is not in the course and scope of employment. Keen v. Pel State Oil Co., 332 So.2d 286 (La.App. 2 Cir.1976). Finally, the regulations in the Associate Handbook neither caused nor contributed to the accident, and did not convert her personal mission into service on behalf of Wal-Mart. When the employer has only a marginal relationship to the tortious conduct, vicarious liability undermines the “course and scope” analysis and will not be sustained. Reed v. House of Decor, 468 So.2d 1159 (La.1985).

The Davises respond that Wal-Mart had the right to control Ms. Green’s conduct in the parking lot, and this fact supports a finding that she was acting within the course and scope of employment. They further argue that despite the “coming and going” rule, an employer can be vicariously liable for an accident that occurs when the employee is driving to work. Orgeron v. McDonald, supra; Suhor v. Medina, 421 So.2d 271 (La.App. 4 Cir.1982). They contend that many cases have found vicarious liability for the conduct of employees who have already checked out, such as Johnson v. Gantt and Mitchell v. Brookshire Grocery Co., 26,755 (La.App. 2 Cir. 4/5/95), 653 So.2d 202, writ denied, 95-1115 (La.6/16/95), 655 So.2d 339. Finally, they submit that the district court found an additional basis of liability in that the stop sign was missing. In support, they urge that a public body owes a high duty of care to maintain stop signs. Reaux v. City of New Orleans, 2001-1585 (La.App. 4 Cir. 3/20/02), 815 So.2d 191, writ denied, _|⅛2002-1068 (La.6/14/02), 817 So.2d 1158; Tucker v. Pinder, 93-563 (La.App. 3 Cir. 2/2/94), 631 So.2d 735, units denied, 94-0547, 94-0515 (La.4/7/94), 635 So.2d 1138. They conclude that the breach of this duty further supports finding Wal-Mart liable.

The basis of employer liability for an employee’s tort is La. C.C. art. 2320, which provides in pertinent part:

Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.

An employer is liable for a tort committed by its employee if, at the time, the employee was acting within the course and scope of her employment. Baumeister v. Plunkett, 95-2270 (La.5/21/96), 673 So.2d 994. The course of employment refers to time and place; scope refers to the employment-related risk of injury. Benoit v. Capitol Mfg. Co., 92-2920 (La.4/12/93), 617 So.2d 447. For the employer to be vicariously liable, the employee’s tortious conduct must be “so closely connected in time, place, and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer’s business, as compared with conduct instituted by purely personal considerations entirely extraneous to the employer’s interest.” LeBrane v. Lewis, 292 So.2d 216 (La.1974); Woolard v. Atkinson, supra. Factors useful in determining whether the employee’s act was employment-related include the payment of wages by the employer; the employer’s power of control; the employee’s duty to perform the act in question; the time, place and purpose of the act in relation to the employment; the relationship between the employee’s act and the | aemployer’s business; the benefits received by the employer from the act; the employee’s motivation for performing the act; and the employer’s reasonable expectation that the employee would perform the act. Orgeron v. McDonald, supra; Woolard v. Atkinson, supra.

An employee going to or coming from work is generally not considered as acting in the course and scope of employment so as to make the employer liable to third persons for the employee’s negligence. Orgeron v. McDonald, supra; Woolard v. Atkinson, supra. Exceptions may apply when the employer provides, or pays the employee for, transportation to and from work, or when the operation of the vehicle was incidental to some employment responsibility. Woolard v. Atkinson, supra. The enforcement of an employer’s rules and standards of conduct is not, in itself, sufficient to establish that an employee acted within the course and scope of employment. Hanson v. Benelli, 1997-1467 (La.App. 4 Cir. 9/30/98), 719 So.2d 627, writ denied, 98-2754 (La.1/8/99), 735 So.2d 632.

The record evidence will not support a finding that Ms. Green was acting in the course and scope of her employment when this accident occurred. She had completed her day’s work and clocked out, placing her outside the time element of her employment. Admittedly, she was still on Wal-Mart’s property, and in other circumstances this could satisfy the place element. However, she was driving her (borrowed) car, leaving and almost completely off the parking lot when the accident happened. As she was going from work, an activity for which she was not paid, she was not in the course of her employment. Orgeron v. McDonald, supra; Woolard v. Atkinson, supra.

The evidence pertaining to the scope of her employment is even less impressive. She was not receiving wages for driving away from work; her purpose in driving to the daycare, and in running into the Davises, was utterly irrelevant to Wal-Mart’s business; these acts conferred no benefits upon Wal-Mart; and her motivation was completely personal, not business-related. Admittedly, Wal-Mart must expect that every associate will need transportation to and from work, but not that associates will injure third parties in the process. In short, as to the vast majority of the factors set out in Orgeron and Woo-lard, the evidence does not support a finding that Ms. Green was in the scope of her employment.

The Davises strongly contend that they proved the crucial and decisive factor, right of control, and there is some evidence to this effect. Wal-Mart plainly would have expected Ms. Green to stop and assist customers any time before she left the parking lot; this is a modicum of control, and it would tend to prove a point not at issue, that Ms. Green was an employee instead of an independent contractor of Wal-Mart. Factually, however, she was not assisting customers or serving Wal-Mart in any way, but hurrying off the premises as fast as possible, distinguishing the case from Johnson v. Gantt, supra. Moreover, Ms. Green admittedly flouted most of the regulations set out in the Associate Handbook by breaking the speed limit, driving over marked parking spaces, failing to yield at the three-way intersection and T-boning the Davises’ truck. The fact that she may have been subject to discipline for these infractions did not bring her into the course and scope of Wal-Mart’s employment. Hanson v. Be-nelli, supra. j^In short, the evidence of right of control withers under scrutiny and does not counteract the overwhelming evidence that Ms. Green was no longer in the course and scope of her employment.

Finally, the Davises correctly show that Wal-Mart failed to notice and correct the missing stop sign at the intersection. The district court noted this almost as obiter dictum, without explaining how it contributed to liability. . The Davises contend that Wal-Mart’s duty of care to maintain its stop sign is analogous to that of a. public body as in Reaux v. City of New Orleans and Tucker v. Pinder, supra, and conferred knowledge of the defect. However, under the duty-risk analysis, the plaintiff must prove that the defendant’s action or property was a cause in fact of the plaintiffs injury. Hebert v. Rapides Parish Police Jury, 2006-2001 (La.4/11/07), 974 So.2d 635; Edwards v. Horstman, 96-1403 (La.2/25/97), 687 So.2d 1007. Ms. Green testified that she knew she should stop at the intersection, but she simply failed to do so. There is no showing that a stop sign, more probably than not, would have made a difference. Jones v. Hawkins, 98-1259 (La.3/19/99), 731 So.2d 216. Without the showing of causation, there is no liability. The judgment will be reversed.

Conclusion

The evidence does not support the conclusion that Ms. Green was acting in the course and scope of her employment when she collided with the Davises. The judgment casting Wal-Mart for the plaintiffs’ damages is reversed and judgment is rendered dismissing their petition. All costs are to be paid by the plaintiffs, Johnny and Connie Davis.

REVERSED AND RENDERED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, GASKINS, DREW and MOORE, JJ.

Rehearing denied.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge. AMY, J.,

license: Public Domain

text:
    Joseph H. FONTENOT, Jr. v. WAL-MART.
    No. 08-158.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 2009.

      Frank A. Flynn, Desiree C. Williams, Allen & Gooch, Lafayette, LA, for Defendant/Appellee, Wal-Mart Stores, Inc.
    James S. Gates, Morrow, Gates, & Morrow, LLC, Opelousas, LA, for Plaintiff/Appellant, Joseph H. Fontenot, Jr.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, MARC T. AMY, BILLY H. EZELL, and JAMES T. GENOVESE, Judges.
   THIBODEAUX, Chief Judge.

| iThis case involves the workers’ compensation claims of the claimant-appellant, Joseph H. Fontenot, Jr., against the employer-appellee, Wal-Mart. The Office of Worker’s Compensation (“OWC”) granted judgment partially favoring Wal-Mart and partially favoring Mr. Fontenot. The OWC found that Mr. Fontenot’s back and knee injuries were caused by his work-related injury in February 2003 and ordered Wal-Mart to pay all outstanding medical expenses incurred on or before September 28, 2004.

The OWC further found that Mr. Fonte-not’s subsequent wound complications were the result of intentional self-injury under La.R.S. 23:1081(l)(a) and decided in favor of Wal-Mart’s termination of medical and wage benefits on September 28, 2004. However, finding that Mr. Fontenot was not a malingerer, the OWC denied Wal-Mart’s fraud claim against Mr. Fontenot.

Mr. Fontenot appealed the portions of the judgment that favored Wal-Mart. Having determined upon review that Wal-Mart did not meet its burden of proving intentional self-injury, we reverse the portions of the OWC Judgment favoring a termination of benefits and order Wal-Mart to pay medical and wage benefits as explained below.

I.

ISSUES

We must decide:

(1) whether the OWC manifestly erred in its reliance upon Wal-Mart’s psychiatrist rather than Mr. Fontenot’s treating wound specialist in terminating benefits under La.R.S. 23:1081(l)(a); and,

(2) whether the OWC manifestly erred in finding no arbitrary and capricious behavior on the part of Wal-Mart.

J2II.

FACTS AND PROCEDURAL HISTORY

In February 2003, Joseph H. Fontenot, Jr., a thirty-three-year-old manual labor employee, twisted and injured his back when he fell after lifting an eighty-pound pallet at the Wal-Mart Distribution Center in St. Landry Parish. Two weeks later, he underwent a discectomy at L4-5 for the repair of the ruptured disc. Mr. Fontenot continued to have back and leg pain and was re-admitted to the hospital in March 2003. While hospitalized, Mr. Fontenot fell on his right knee, apparently hitting a metal bed rail and the floor. Mr. Fontenot was diagnosed with a medial meniscus tear in his right knee. He had also suffered a bruise and collection of blood under the skin, or hematoma, in his right thigh about five inches above his knee. The hematoma in his thigh became stagnant and clotted; the blood had nowhere to go. Eventually, Dr. Toby Broussard opened up the area and drained it, which should have resulted in healing. However, healing was delayed. Mr. Fontenot underwent knee surgery with Dr. Malcolm Stubbs in June of 2003, and the operation site also experienced delayed healing.

In July of 2003, Mr. Fontenot reported that the sutures from the knee surgery had come out during physical therapy. Mr. Fontenot developed an infection and re-entered the hospital. Dr. Stubbs irrigated the knee and closed the wound, remarking that he had never seen such complications with post-operative healing. Mr. Fontenot’s wounds kept opening back up instead of healing. Mr. Fontenot was treated for wound care in Lafayette and at his home through home health, and he continued to experience complications. He was put on vai’ious antibiotics, experienced allergic reactions, developed a clot in his arm, and was put on Coumadin. Even his intravenous (IV) sites became inflamed with redness and swelling.

|aIn August of 2003, Mr. Fontenot’s family physician since 2001, Dr. Michael Bur-nell, recommended wound care at the Opelousas General Hospital Wound Care Center (Opelousas General), which happened to be in Mr. Fontenot’s hometown. Wal-Mart’s case manager at Corvel, the case management company, insisted that Mr. Fontenot be sent to Baton Rouge for wound care. There were complications, and the wounds continued to resist healing. Mr. Fontenot was sent to numerous specialists and several medical facilities between July 2003 and July 2004. Even the Mayo Clinic was discussed at one point. He saw a total of approximately seventeen physicians during the course of his treatment following the February 2003 injury at the Wal-Mart Distribution Center.

On July 12, 2004, while being treated at Promise Health Care in Baton Rouge by plastic surgeon Dr. Anthony Stephens, Dr. Stephens’ skin graft became dislodged when Mr. Fontenot pulled up his bed covers. Dr. Stephens re-attached the skin graft onto the thigh wound with instructions to remain very still so that the graft could take. The next day, on July 13, 2004, Mr. Fontenot was discharged after his benefits were terminated by Corvel. The benefits were reinstated for the purpose of sending Mr. Fontenot for a psychological evaluation. On July 30, 2004, Mr. Fontenot returned to Dr. Stephens who reported that Mr. Fontenot’s wound had healed, that he had reached maximum medical improvement, and that he had no work limitations with regard to the thigh wound. However, the wound, which had experienced tunneling deep into the groin area, subsequently opened back up.

In August of 2004, Wal-Mart had Mr. Fontenot examined by a psychiatrist, Dr. Rennie Culver. Dr. Culver reported on September 21, 2004 that Mr. Fontenot was malingering and had a factitious/psychological disorder with evidence of self-inflicted injury for the purpose of remaining in the role of a patient.

DOn September 28, 2004, Wal-Mart terminated Mr. Fontenot’s medical and wage benefits, even though no functional capacity evaluation had been done to determine Mr. Fontenot’s limitations due to the back and knee surgeries. In October 2004, Mr. Fontenot filed a disputed claim form, seeking reinstatement of the medical and wage benefits and alleging arbitrary and capricious conduct on the part of Wal-Mart in terminating his benefits.

Taking control of his own care, Mr. Fon-tenot went to the specialist recommended by his family physician over a year prior. From October 11 through November 22, 2004, Mr. Fontenot was treated in his hometown of Opelousas by Dr. Kerry Thi-bodeaux, director of the Wound Care Center of Opelousas General Hospital. Dr. Thibodeaux reported that the thigh wound was as large as thirty-five square centimeters at the first visit on October 11. By October 26, after treating Mr. Fontenot with special dressings, Dr. Thibodeaux had reduced the size of Mr. Fontenot’s wound by fifty percent. After six weeks of treatment, Dr. Thibodeaux discharged Mr. Fon-tenot with a ninety-eight percent reduction in the size of his wound. Wal-Mart did not pay for this treatment with Dr. Thibo-deaux and Opelousas General.

The matter proceeded to trial and was heard by OWC Judge Sharon Morrow in February 2006. Subsequently, Judge Morrow recused herself due to conflict issues. The case was reassigned to Judge Elizabeth Warren. Judge Warren decided the case upon her review of the record, without benefit of live testimony. While finding the back and knee injuries causally related to the work injury, Judge Warren found the wound complications a result of self-inflicted injury and upheld Wal-Mart’s termination of benefits under La.R.S. 28:1081(l)(a). This finding was largely the result of Judge Warren’s reliance upon the testimony of Wal-Mart’s |psychiatrist, Dr. Culver, and the judge’s apparent disregard of the testimony of Mr. Fontenot’s family physician, Dr. Burnell, and his wound specialist, Dr. Thibodeaux, who actually cured Mr. Fontenot in a matter of weeks. Judge Warren also found credibility issues with Mr. and Mrs. Fontenot in spite of not having witnessed their testimony at trial. Mr. Fontenot filed a motion for a new trial, which was denied by Judge Warren.

We reverse the termination of benefits and order Wal-Mart to pay all medical expenses related to Mr. Fontenot’s February 2003 work accident. This includes the back injury and surgery, the knee injury and surgery, and the expenses related to the care of the bruises and wounds that occurred along with the knee injury. We remand the case to the OWC for a determination of wage benefits as more fully set forth below.

III.

LAW AND DISCUSSION

Standard of Review

The supreme court has discussed the standard of review in workers’ compensation cases as follows:

In worker’s compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the “manifest error-clearly wrong” standard. Brown v. Coastal Construction & Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704 So.2d 8, 10, (citing Alexander v. Pellerin Marble & Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710). Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander, 630 So.2d at 710. Where there is conflict in the 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. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir.2003), 865 So.2d 98, 105[, writ denied, 03-2581 (La.11/26/03), 860 So.2d 1139],

Dean v. Southmark Const., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117. With regard to credibility findings, we have further articulated:

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. Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination.

Custis v. Whitaker Const., 95-1110, p. 8 (La.App. 3 Cir. 1/31/96), 670 So.2d 339, 344, writ denied, 96-553 (La.4/19/96), 671 So.2d 920 (quoting Bruno v. Harbert Int'l, Inc., 593 So.2d 357, 361 (La.1992)) (quoting, Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989)).

Termination of Benefits

Mr. Fontenot contends that the OWC manifestly erred in relying upon the testimony of Dr. Culver, Wal-Mart’s psychiatrist, and in crediting Dr. Culver’s testimony and diagnosis of a factitious disorder while disregarding the diagnoses of Mr. Fontenot’s treating physicians. We agree.

Dr. Culver met with Mr. Fontenot for one hour and forty-five minutes in August of 2004. He neither performed nor reviewed psychological testing or intelligence testing on Mr. Fontenot. Nor did he review school records; yet, he formed specific conclusory judgments about Mr. Fonte-not’s intellect and his character based upon an unhappy childhood due to alcoholic, unstable, and neglectful parents. |7Pr. Culver actually posited a guess that Mr. Fontenot’s intelligence quotient was probably around 80 because that is where laborers such as Mr. Fontenot usually fall. The record reveals that while Mr. Fontenot did not complete high school, his own history does not reflect that of his parents. Mr. Fontenot does not drink and has no history of drug or alcohol-related problems; has no criminal history nor legal problems; is not litigious; and, he does not have a negative work record.

Mr. Fontenot has been married once, to Sharon Fontenot, who is a McNeese graduate and certified teacher. They have six children between the ages of two and seventeen, foster children whom they later adopted. At the time of the accident, Sharon Fontenot ran a Christian academy, and was the sole teacher and principal to thirty-one students in addition to her own six children. Mr. Fontenot helped grade workbooks. However, none of Mr. Fonte-not’s adult history was discussed by Dr. Culver during his deposition. Rather, Dr. Culver involved himself in an interminable discourse and boundless soliloquy regarding the fact that Mr. Fontenot chose to wear shorts to his appointment with Dr. Culver, notwithstanding that the appointment took place in August in south Louisiana. Dr. Culver opined that this choice of clothing was a contrived attempt on the part of Mr. Fontenot to display his wounds and scars. Dr. Culver never considered that Mr. Fontenot was told by his physician to keep his leg uncovered to promote healing.

Dr. Culver’s emphasis on the clothing issue and the significance that he accorded it were out of proportion to the minimal coverage that he accorded the substantive information about Mr. Fontenot. Likewise, Dr. Culver provided numerous, detailed, and unsolicited accounts and case histories of behaviors that were not relevant to the case before him. Dr. Culver’s testimony was so filled with unhesitatingly breathless acrimony that his agenda would have been apparent to all |sbut the most naive. Upon review, his testimony was little more than a lecture on his favorite subject, one that he gives often, since he teaches medical students at Tulane and LSU on the detection of malingering, and on factitious disorders in personal injury and workers’ compensation claims. The problem with Dr. Culver’s expertise is that he is rarely in the position of his medical students who will actually treat patients with physical problems and who will therefore benefit from the detection of malingering and psychological disorders affecting the accuracy of their diagnoses.

More specifically, Dr. Culver rarely treats patients at all. He certainly did not treat Mr. Fontenot for any physical or psychological ailment, nor did he observe him while being treated by another physician in order to determine whether he was malingering. Dr. Culver certainly never observed Mr. Fontenot malingering while Dr. Culver took historical information from him about his parents. When examined about his own practice, Dr. Culver admitted that he had retired from hospital practice nine years earlier and that his current practice consisted of eighty percent forensic psychiatry.

Research of reported Louisiana state cases indicates that Dr. Culver has testified in approximately thirty-eight cases heard by Louisiana appellate courts, apparently in all but the second circuit. The overwhelming majority of Dr. Culver’s psychiatric opinions have been rendered in workers’ compensation cases wherein he testifies for the employer, opining that the claimant is either a malingerer, or had pre-existing conditions, or had factitious or Munchausen or other psychological disorders defeating his or her claim. Further, the thirteen-page letter that Dr. Cul-ver received from Corvel, describing Mr. Fontenot’s medical history and treatment, specifically asked Dr. Culver to give an opinion on Munchausen Syndrome, which appears rather suggestive in our estimation.

| j)Dr. Culver testified that he did not read the letter prior to meeting with Mr. Fontenot, so as not to conduct his interview with preconceived notions. This testimony is specious because he next points out that, pursuant to his bill for services, he did not review Corvel’s materials until September 20, over a month after his appointment with Mr. Fontenot. Dr. Culver then admits that he dictated his sixteen-page report the day after reviewing the material, without benefit of a tape of the month-old interview or the results of any psychological testing. In fact, Dr. Culver clearly stated that he is not a psychologist and does not perform psychological testing.

In support of its position, Wal-Mart argues that Dr. Stubbs, the orthopaedic surgeon who performed Mr. Fontenot’s knee surgery, and Dr. Stephens, the plastic surgeon in Baton Rouge who tried to heal Mr. Fontenot’s wounds, both suspected Mr. Fontenot of self-inflicted injuries before his examination by Dr. Culver. However, the record reveals that neither of those physicians diagnosed Munchausen Syndrome or factitious disorder, and neither physician had seen Mr. Fontenot exhibit such conduct. Their concerns seemed to be based largely upon the fact that they could not explain the healing complications during their treatment of Mr. Fontenot. Dr. Stubbs, who performed the knee surgery in June 2003 and subsequently performed irrigation and debridement of the knee, was baffled by the recurrent subcutaneous hematoma. However, he referenced interruptions in his care of Mr. Fon-tenot stating that there were “numerous negative interactions with the Workers’ Comp case manager resulting in [his] being taken for orthopaedic care elsewhere.” Dr. Stubbs thought something else must be going on and suggested that a psychological evaluation might be in order.

The testimony of Dr. Stephens, who incidentally liked Mr. Fontenot and thought he was “the nicest guy in the world,” revealed that his suspicions were based | mupon a nurse’s complaint during Dr. Stephens’ visit with Mr. Fontenot at Promise Health Care in Baton Rouge. The nurse complained that she had told Mr. Fontenot to lie still and not cover his wound until she could return with dressing supplies for it. When she returned, Mr. Fontenot had pulled the bed covers over himself and over his wound causing a fifty percent disruption of his skin graft. This innocent accident was described as having the nurse running down the hall and informing Dr. Stephens that Mr. Fontenot had pulled off his skin graft. This characterization has been repeated and quoted numerous times, in spite of the fact that it is not true. The nurse was not even in the room when it happened. She did not see him pull off anything. Moreover, Mr. Fontenot explained that when she asked him not to cover his wound, he replied that he needed to cover himself (as he was wearing only his underwear), and she replied not to touch the wound.

Additionally, the record indicates that Mr. Fontenot had been given Demerol thirty to forty-five minutes before this event. Dr. Stephens admitted that Mr. Fontenot had been over-medicated, through no fault or requests of his own, and that this chemically-altered state could cause him to move without understanding the consequences of his movements. Even Dr. Culver admitted that this incident with the covers “was the only documented thing that was — I guess you would say, almost witnessed — .” The record contains logical factual explanations for each of the witch-hunting mischaracterizations applied to Mr. Fontenot’s conduct in changing his dressings and managing his wounds. For example, he was criticized for changing his dressing before the home health nurse arrived. Mr. Fontenot had been instructed to change his dressing twice daily, early in the morning and at night. The home health nurse typically arrived between 10:00 a.m. and noon. Mr. Fontenot specifically asked how to address these late arrivals and was told to dress his wounds himself according |T1to schedule. Likewise, there was no substantiated evidence of “wound-picking.” If a bandage was soaked and needed adjusting, and the nurses would not do it, he tried to keep the bandage over the wound. There simply is no evidence of the conduct alleged.

On cross examination, Dr. Stephens admitted that he had no understanding of Mr. Fontenot’s position. He felt sorry for him and his wife but was exasperated with his problems and wanted him out of the hospital. Dr. Stephens testified that he had no knowledge of the underlying workers’ compensation injury and back surgery that started Mr. Fontenot’s odyssey, or the fact that his workers’ compensation benefits were terminated. Dr. Stephens admitted that numerous occurrences could have caused Mr. Fontenot’s wound not to heal, e.g., movement of any kind, because sheering forces in the wound could impair healing; or the Coumadin that he was given for a clot could have caused bleeding into the operated area of the knee, leading to a hematoma that then got infected, resulting in a wound. Mr. Fontenot had blood cultures indicating staph infections on several occasions as well.

Further, Mr. Fontenot testified that he had been bitten by a brown recluse spider around eight years earlier, and that since that time, he has had trouble healing. This was documented by several doctors who wanted to investigate the spider bite further and test Mr. Fontenot’s immune system. The Corvel case manager even wrote a toxicologist regarding this issue, but never received a response. A consulting physician, Dr. John Rainey, commented on the spider bite and the inflamed areas at the IV sites and stated that Mr. Fontenot did appear to have some fibrob-lastic dysfunction with poor healing properties.

112Pr. Thibodeaux, a board certified general surgeon and director of the Wound Care Center of Opelousas General Hospital, was Mr. Fontenot’s treating wound care specialist from October 11, 2004 through November 22, 2004. During the first two weeks of treatment, he had reduced the size of Mr. Fontenot’s wound by fifty percent, from thirty-five square centimeters to sixteen square centimeters. When Mr. Fontenot was discharged approximately four weeks later, the wound was down to a couple of centimeters. Dr. Thibodeaux clearly and succinctly articulated the protocol that he used to achieve such remarkable success after all of the failed protocols that Mr. Fontenot had endured. Biologically, Mr. Fontenot’s wound had descended into a chronic state, repeatedly achieving a level of healing, but repeatedly failing to heal.

Contrary to Wal-Mart’s assertion that the wound was infected and festered when Mr. Fontenot first went to Dr. Thibodeaux in October 2004, Dr. Thibodeaux stated that the wound was clean and free from infection but did not have a robust wound bed with the raised edges that indicate healing activity. He described various underlying problems that can prohibit healing. Individuals with Mr. Fontenot’s short stature (5'4") sometimes have collagen vascular problems. In Mr. Fontenot’s case, Dr. Thibodeaux had actually treated him in 2001, following his first back surgery with Dr. Morgan Lorio, for underlying chronic viral illness resulting in eruptions on his back at the lumbar surgery site.

For the present wound issue, Dr. Thibo- ' deaux was concerned about the numerous protocols that had been attempted, including debridement, which can make things worse. Dr. Thibodeaux testified that there were approximately seven thousand wound products and advanced wound therapies that had been developed for chronic wound patients. He explained that collagen and proteins are needed at the wound site | isfor proper healing. “Proteases” are enzymes that break down proteins as a natural part of the healing process, as there is always some protein breakdown as other proteins are built up. However, wounds that reach a state of chronicity (chronic wounds) have been found to have a higher level of protease activity. Therefore, special therapies, or protocols, can be directed toward high protease activity.

Dr. Thibodeaux explained that the only approved wound dressing shown to bind up the excess proteases and take them out of the wound bed, allowing for appropriate protein build-up to occur, is called Promo-gran therapy. Promogran is a combination dressing that uses human collagen that is dehydrated, combined with cellulose, a plant material. The collagen and cellulose are combined and fashioned into a thin, sponge-like wafer that can be applied to the surface of the wound or packed into it. The proteases gravitate to the collagen; the dressing traps the excess proteases; and their protein breaking activity becomes muted in terms of the wound bed, thereby correcting the imbalance of wound healing proteins. When Promogran dressings were applied to Mr. Fontenot’s wound, the successful result proved that excessive protease activity was causing the failure of his wound to heal. Dr. Thibodeaux testified that he had seen Mr. Fontenot’s same scenario played out again and again on a regular basis. He further stated that Promogran therapy had only been out for a couple of years and that Mr. Fontenot was one of the first patients to get it.

Dr. Thibodeaux testified that Mr. Fonte-not had never, including back in 2001, exhibited signs of factitious or Munchausen disorder. He further testified that when faced with repeated failures of a wound to heal, wound specialists do not jump to the conclusion that there is a psychological problem; they simply go to the next biological approach. He summarized Mr. Fontenot’s previous treatment as not | l4inappropriate under the circumstances and stated simply that “the wrong people were directing traffic.”

Dr. Burnell, Mr. Fontenot’s family physician since 2001, knew his history of delayed healing and had treated him on more than one occasion where this occurred. Dr. Burnell testified that at no time had Mr. Fontenot exhibited signs of factitious disorder or Munchausen Syndrome. Dr. Burnell’s impression of Mr. Fontenot during his visits was that he was a hard worker, a simple guy who liked to get his work done, and a quiet and compliant patient who never exaggerated or dramatized his complaints.

As a general rule, the testimony of a treating physician should be given greater weight than that of a physician who examined a claimant for diagnostic purposes only. Winch v. Double M, Inc., 99-1793 (La.App. 3 Cir. 4/5/00), 764 So.2d 1055, writ denied, 00-1271 (La.6/16/00), 765 So.2d 339. This is because the treating physician has the advantage of familiarity, since he or she is more likely to know the claimant’s symptoms and complaints due to repeated examinations and sustained observations. Alexander v. AutoZone, Inc., 04-871 (La.App. 3 Cir. 12/8/04), 889 So.2d 366. Additionally, positive findings of medical experts are to be afforded greater weight than the negative findings as to the existence of a particular condition. Campbell v. Luke Const. Co., 465 So.2d 688 (La.1985).

In the present case, Mr. Fontenot had a history of the delayed healing of his wounds. His family physician, Dr. Bur-nell, knew it; and his wound care specialist, Dr. Thibodeaux, knew it. Dr. Thibo-deaux ultimately healed the wound at issue in this case, and, in a very short time. The trial court apparently disregarded their testimony in favor of the testimony of Wal-Mart’s forensic psychiatrist, Dr. Cul-ver, whose analysis was not factually-oriented to Mr. Fontenot’s specific physical 11fiand medical problems. Wal-Mart’s argument that the orthopaedist, Dr. Stubbs, and the plastic surgeon, Dr. Stephens, had also suspected self-inflicted wounds has no merit because they were not wound specialists. Moreover, any reliance upon the plastic surgeon, Dr. Stephens, for terminating the benefits of a worker who has had back surgery and knee surgery, is insupportable. We find that the OWC’s judgment terminating the benefits of Mr. Fontenot for self-inflicted injury under La. R.S. 23:1081(l)(a) was manifestly erroneous. Accordingly, we reverse the judgment and order Wal-Mart to pay all related medical expenses of Mr. Fontenot after the termination of benefits on September 28, 2004, particularly including those of Dr. Kerry Thibodeaux and Opelousas General Hospital.

Wage Benefits

Mr. Fontenot’s attorney requests Temporary Total Disability (TTD) benefits from September 28, 2004, the date of Wal-Mart’s termination of benefits, until such time as evidence demonstrates that the TTD benefits can be converted to Supplemental Earnings Benefits (SEB’s). Wal-Mart argues that Mr. Fontenot is not entitled to TTD benefits because he worked for Prompt Succor Nursing Home after the termination of benefits on September 28, 2004. The record reveals that Mr. Fontenot did not begin working for the nursing home until August of 2006, which was well beyond the date of trial in early February 2006. However, he did have other jobs before that time.

Mr. Fontenot underwent a functional capacity evaluation (FCE) on September 1, 2005, stating that he was limited to light duty work because of his lumbar injury and surgery, the torn medial meniscus, and right knee post-operative infection. The light duty was to consist of walking, carrying twenty pounds, and | ^climbing stairs. However, Mr. Fontenot was not to stoop, kneel, crouch, or crawl, and not to perform static sitting or standing or prolonged walking. The record does not contain any evidence of rehabilitation assistance by Wal-Mart in the form of offering or helping Mr. Fontenot to find such a light duty position.

Notwithstanding, Mr. Fontenot, after much investigation, did find such positions for a period of time beginning around August 4, 2005. Therefore, we award TTD benefits from September 28, 2004 until August 4, 2005. Under La.R.S. 23:1221, Mr. Fontenot is entitled to sixty-six and two thirds percent of his pre-injury wages, which, with an average weekly wage of $488.00, would have been $21,634.67 (ten months plus one week x .666%). Beginning around August 4, 2005, Mr. Fontenot worked at a golf course until November 2005, then as a security guard at Evangeline Downs from November 2005 through the date of trial on February 6, 2006. According to the check stubs in the record, during that seven-month period, Mr. Fon-tenot earned $4,541.80 in gross wages. His wages at Wal-Mart during that time period would have been $14,802.69 ($488.00/wk x 52 + .12 = $2,114.67/mo x 7 mos.). Under La.R.S. 23:1221, SEB’s are sixty-six and two thirds percent of the difference between the pre-injury wages and the post-injury wages. The difference between $4,541.80 and $14,802.69 is $10,260.89. Hence, Mr. Fontenot’s SEB’s up until the time of trial total $6,833.75. Accordingly, we award Mr. Fontenot a total of $28,468.42 in SEB and TTD benefits through the time of trial.

Because of an earlier appeal for pauper status in January 2008, which was made part of this record, we know that Mr. Fontenot changed employment a few more times after trial. In April or May of 2006, he worked for St. Landry Security until August of 2006, at which time he became employed by Prompt Succor Nursing Home as a maintenance supervisor. He worked for the nursing home for one year, |17until August 2007. However, there is not sufficient information in the record to calculate SEB’s for those places of employment. While at these positions between 2005 and 2007, Mr. Fontenot testified that he continued to have swelling and discoloration at the wound area on his right thigh, and his leg became black and blue from the thigh on down the right leg. He was again diagnosed with cellulitis and another hematoma, which appear to have stemmed from the fall in the hospital in March 2003, following the back surgery in February 2003. Mr. Fontenot left his employment with the nursing home in August 2007 and that employer will not take him back until he is one hundred percent healed. Mr. Fontenot testified that Dr. Thibodeaux, who has been treating him, has also indicated that he will not release him to return to work until he is at one hundred percent as well.

Accordingly, it appears that Mr. Fonte-not may again be entitled to TTD benefits. However, we do not have sufficient information to calculate wage benefits beyond the date of trial. Therefore, we enter judgment in favor of Mr. Fontenot and against Wal-Mart in the amount of $28,468.42 in SEB and TTD benefits, without legal interest, through the time of trial and remand the case to the OWC for a determination of benefits based upon wage and medical information accruing after the trial in February 2006.

With regard to Mr. Fontenot’s claim for penalties and attorney fees for arbitrary and capricious claims handling by Wal-Mart’s case management company, Corvel, we must decline to make such award. Corvel had documented suspicions of possible self-injury by Dr. Stubbs and Dr. Stephens, prior to the examination by Dr. Culver. Though none of these suspicions were well-founded, they provided a reasonable basis for Wal-Mart to controvert Mr. Fontenot’s claim.

_biv.

CONCLUSION

Based upon the foregoing, we reverse the portion of the judgment of the OWC terminating wage and medical benefits as of September 28, 2004, and we order Wal-Mart to pay all medical and pharmacy expenses related to the back injury and surgery in February 2003 and to the knee and thigh injuries, surgeries, and wounds stemming from Mr. Fontenot’s fall in the hospital in March 2003.

We award TTD benefits of $21,634.67 from September 28, 2004 until August 4, 2005 and SEB from August 4, 2005 through the date of trial, February 6, 2006, in the sum of $6,833.75, with legal interest.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED, REMANDED IN PART.

GENOVESE, J., concurs in the result.

AMY, J., dissents and assigns reasons.

AMY, J.,

dissenting.

hWhile the majority discounts many of the workers’ compensation judge’s evaluations in reaching its conclusion, I find an affirmation required in light of the deferential standard of review owed factual findings and credibility determinations. In short, my review of the record reveals support for the ruling that the employer sustained its burden of proving the defense of self injury under La.R.S. 23:1081(l)(a).

First, and as will be explained below, I do not find that the workers’ compensation judge was required to reject the opinion of Dr. Rennie Culver. Dr. Culver diagnosed Mr. Fontenot as having a factitious disorder, which he described as “a form of pathological behavior in which, for no apparent purpose other than to assume the patient role, an individual will fabricate symptoms or signs of either physical or mental illness or both.” Dr. Culver explained that “patients may inflict injury on themselves” and that they may do so “by a variety of means.”

Further, the workers’ compensation judge relied on medical records in determining that the employer proved self injury. After citing various portions of the medical records and the testimony of Drs. Stubbs, Stephens, and Culver, the workers’ compensation judge referenced “emergency room records from Our Lady of Lourdes ... wherein the doctor noted that Mr. Fontenot asked to be admitted to the hospital so that the staff could bring him his food and change his bed. It is also supported by [2the sheer multitude of hospital admissions and medical procedures and tests Mr. Fontenot has undergone since his back surgery in February 2003.”

Although Mr. Fontenot underwent knee surgery in June 2003, medical records detail the resulting wound’s failure to heal and to remain healed. Corresponding depositions indicate that some of Mr. Fonte-not’s physicians were perplexed by his condition and began to suspect self injury. As noted by the workers’ compensation judge, the records also contain several instances in which Mr. Fontenot was reported to be touching his wounds or making comments regarding continued hospitalization.

Dr. Malcolm Stubbs, an orthopedic surgeon, explained that he performed arthroscopic surgery on Mr. Fontenot’s knee in June 2003, and that the resulting wounds were healing by Mr. Fontenot’s July 14, 2003 appointment. His sutures were intact at that time. By the following week, however, Mr. Fontenot reported that the wound had opened. Mr. Fontenot was readmitted to the hospital on July 21, 2003 where Dr. Stubbs performed an additional surgery to “clean out this wound- and wash out his knee.” By this time, Dr. Stubbs was concerned that “something very unusual was happening.” When Mr. Fonte-not returned two weeks later, on August 5, 2003, the sutures were intact, but “he had a lot of redness around the wound and it did appear to be dehiscing once again.”

Dr. Stubbs did not make a diagnosis related to self injury and explained that he was not qualified to do so. He stated, however, that he was concerned that Mr. Fontenot was injuring himself after the second surgery. He explained that “[f]or that just to keep recurring over and over without any signs of immunocompromised status of the patient, that’s the first time that I recall that possibility occurring to me.” Dr. 13Stubbs stated that “this was an extremely unusual case that did not make any sense to me whatsoever.”

Dr. Anthony Stephens, a plastic surgeon who also treated the non-healing right knee and thigh wounds, explained that he, too, became concerned about the possibility that Mr. Fontenot was injuring himself. Although Dr. Stephens initially tried conservative treatment, he closed the wound surgically in April 2004, using a skin graft to cover a portion of the wound. Mr. Fontenot was ordered to bed rest at a Baton Rouge hospital. Dr. Stephens explained that when he changed the dressing four or five days later, it appeared that healing was progressing and there was a “beautiful result at that point[.]” However, within two days the wound again “completely separated, the graph [sic] had sluffed completely free from the repair and he had the wound just as big as he had it from the beginning.” Dr. Stephens confirmed that he considered intentional manipulation of the wound and that when he confronted Mr. Fontenot about that possibility, Mr. Fontenot denied self injury.

Thereafter, Dr. Stephens performed another skin graft procedure in May 2004. Dr. Stephens reported that when he visited Mr. Fontenot in the hospital several days after the procedure, the graft was a “100 percent take[.]” However, while he was recording his notes outside of the room, the “nurse comes running down the hall five minutes later saying he just pulled the graft off.” Dr. Stephens denied that he accepted Mr. Fontenot’s explanation that he was sedated when he did so and stated:

Well, just the whole picture of this whole problem, I mean, we had a presentation from an arthroscopic procedure, a hematoma that gets infected, a non-healing wound that always, should heal with a wound vac, I’ve never seen it not, then we do an operation that essentially fixes the problem and it breaks apart as soon as I take the dressing off in two day [sic], which you just never see. I mean, I can understand a wound not healing and having a problem with a surgery but that usually |4presents itself maybe a week to two weeks later. The whole thing just does not add up.

Dr. Stephens explained that, although he suspected Munchausen’s Syndrome, he did not make that diagnosis.

As noted above, Dr. Culver explained that he diagnosed Mr. Fontenot as having a “factitious disorder” based on his August 2004 exam and review of the medical records. Dr. Culver referenced records relating to Mr. Fontenot’s back surgery, which he felt revealed suspicion of self-injury as early as 2001, as well as Dr. Stephens records regarding difficulty in healing of the knee wounds. Dr. Culver suspected that the factitious disorder may have had a much earlier onset and felt that the nurse’s report of the skin graft incident corroborated his diagnosis.

While Mr. Fontenot contends, and the majority determines, that Dr. Culver’s opinion should have been rejected since he was consulted for litigation purposes, I find no evidence in the record requiring such a rejection. Neither do I find that the workers’ compensation judge was required to favor the opinion of Mr. Fonte-not’s choice of psychiatrist, Dr. James H. Blackburn. Significantly, it is the function of the workers’ compensation judge to assess the weight of the testimony of lay and medical witnesses. See Cannon v. Hamilton Transp., 06-1302 (La.App. 3 Cir. 2/7/07), 948 So.2d 1250, quoting Ivy v. V’s Holding Co., 02-1927, p. 7 (La.App. 1 Cir. 7/2/03), 859 So.2d 22, 28. In this role, the workers’ compensation judge may accept or reject an expert’s opinion depending upon “what impression the qualifications, credibility, and testimony of that expert make on the court.” Id. at 1254. I believe that the reasons for ruling in this case reflect this type of evaluation. Neither the acceptance of the witnesses offered by Wal-Mart, nor the lesser weight placed on those of Mr. Fontenot was an abuse of discretion. See Beverly v. Boardwalk Constr., 00-00219 (La.App. 3 Cir. 10/11/00), 771 So.2d 741, writ denied, 00-3096 (La.1/5/01), 778 So.2d 1142. I see no indication that these evaluations should be performed anew on appeal. Although Mr. Fontenot contends that Dr. Culver’s testimony should have been rejected as biased, counsel questioned Dr. Culver regarding his practice and the parameters of his examination. These facts were available for the workers’ compensation judge’s consideration. Thus, I would not disturb the ruling regarding La.R.S. 23:1081(l)(a).

Neither do I find merit in the remaining argument regarding the contention that the workers’ compensation judge’s approval of Wal-Mart’s termination of benefits, effective September 28, 2004, was in error. These arguments are dependent on the assertion that undue weight was placed on Dr. Culver’s testimony and too little placed on those of his own witnesses. In particular, Mr. Fontenot asserts that the workers’ compensation judge should have dismissed Dr. Culver’s testimony regarding a factitious disorder and/or self injury due to the ultimate healing of the wound. Mr. Fonte-not contends that the trial court should have accepted Dr. Thibodeaux’s assertion that the wounds’ initial failure to heal had a biological basis. As explained above, I find this assertion without merit as the workers’ compensation judge found, with a permissible basis in the record, that Mr. Fontenot’s complaints, as of September 28, 2004, were due to self injury. Thus, the record supports the determination that the employer proved the defense of La.R.S. 23:1081(l)(a). Further, the claimant points to no portion of the medical record or testimony indicating that Mr. Fontenot has ongoing work restrictions stemming from a work-related injury.

For these reasons, I respectfully dissent.

      . We are aware of this information because of an earlier appeal which is part of this record.


author: RANDOLPH, Justice,

text:
    In re Petition of Kerry L. PRISOCK for Reinstatement to the Practice of Law.
    No. 2007-BR-00430-SCT.
    Supreme Court of Mississippi.
    June 5, 2008.
    David C. Dunbar, Benny M. “Mac” May, Jackson, attorneys for appellant.
    Adam Kilgore, Jackson, attorney for ap-pellee.
   RANDOLPH, Justice,

for the Court.

STATEMENT OF THE PROCEEDINGS

¶ 1. Attorney Kerry L. Prisock was suspended from the practice of law by a complaint tribunal for three consecutive, eighteen-month periods for separate violations. Pursuant to Mississippi Rule of Discipline 12, Prisock is before this Court seeking reinstatement to the practice of law. Under Mississippi Rule of Discipline 12.8, the Board of Bar Commissioners directed an investigation into Prisock’s Petition for Reinstatement. After a preliminary investigation, a hearing was conducted. The Mississippi Bar (“the Bar”) filed an answer supporting Prisock’s reinstatement.

¶ 2. Finding the investigation to be lacking in substantive proof, the parties were ordered to supplement the record within forty-five days. The parties supplemented the record accordingly.

¶ 3. Prisock and the Bar were granted an opportunity to review the supplemental documents, and the Bar was ordered to conduct further investigation. The order stated in pertinent part,

Prisock shall have twenty (20) days from the entry of this Order to file an amended petition with attachments or to affirm his previously filed petition and attachments.
Upon the filing by Prisock, the Bar shall then have thirty (30) additional days to conduct further review and investigation and file an amended response or to affirm its previously filed response.

¶ 4. The Bar filed a motion for additional time to depose Prisock. This motion was granted, and his deposition was taken tele-phonieally on January 29, 2008. On February 22, 2008, the Bar filed an amended answer recommending the reinstatement of Prisock.

BASES FOR SUSPENSION

¶ 5. Prisock’s suspensions stemmed from three separate incidents in which Prisock violated various Mississippi Rules of Professional Conduct:

¶ 6. In Cause Number 93-B-00697, Pri-sock was charged with violating Mississippi Rules of Professional Conduct 1.3 and 1.4(a) in his representation of Mr. and Mrs. Lester Rainey. Prisock undertook representing the Raineys in a bankruptcy matter. While the Raineys’ bankruptcy matter was proceeding, Prisock converted the Raineys’ Chapter 13 bankruptcy to a Chapter 7 bankruptcy. The motion to convert resulted in the Raineys’ bankruptcy proceedings being dismissed. Approximately six months passed before Prisock became aware that the proceedings had been dismissed. Once he gained knowledge, he failed to file the necessary motions to have the proceedings reinstated, and failed to advise his clients of this development. The Raineys’ employers were served with garnishment papers on three occasions by the Covington County Sheriff. Prisock testified that the Raineys suffered no financial loss due to his failure to file, but he did acknowledge they suffered stress and embarrassment.

¶ 7. Prisock testified that “personal issues clouded my judgment. I didn’t pay the attention to my cases that I should have.... I owed those clients more than I ... gave them.... ” Prisock blamed his lack of attention on personal problems and related that he “probably drank more than I would normally have done.”

¶ 8. A complaint tribunal found Prisock guilty of violating Mississippi Rules of Professional Conduct 1.3 and 1.4(a). Prisock was suspended from the practice of law for eighteen months. Pursuant to Mississippi Rules of Discipline 17 through 25, Prisock was also placed on disability status, was ordered to participate in a substance-abuse program and to complete a program of therapy.

¶ 9. In Cause Number 93-B-00950, Pri-sock was charged with violating Mississippi Rules of Professional Conduct 3.3(a)(4), 3.4(b), and 4.1(a) and (b). In the underlying case which precipitated the complaint, Prisock was assisting another attorney, Jesse B. Goodsell. Prisock notarized a motion for temporary restraining order filed by Goodsell’s client, Herschel Woodward. Prisock certified that the document was executed by Woodward. Chancery Court Judge Stuart Robinson entered a temporary restraining order, in reliance upon the sworn document. Subsequently, the opposing party filed a motion to dissolve the temporary restraining order, alleging Woodward’s signature was forged and sought sanctions against both Goodsell and Prisock.

¶ 10. Chancellor Robinson conducted a hearing to determine the authenticity of the signature and notarization by Prisock. A signature expert opined that the signature was not Woodward’s, but was likely that of Goodsell. To counter this evidence, Goodsell called Prisock as a witness. Pri-sock falsely testified he witnessed Woodward sign the document. Prisock further amplified his testimony by falsely testifying the document was signed by Woodward using his left hand, as Prisock recalled Woodward had had a cast on his writing hand, the right hand.

¶ 11. Following a recess of that hearing, Goodsell approached the chancellor and admitted to signing Woodward’s name on the document. When the hearing resumed, Goodsell testified to same. Prisock was recalled to the stand and recanted his perjurous testimony. Prisock then said that while he was not aware that Goodsell had signed the document, he actually observed Woodward sign the document, although hedging his testimony with the statement that he thought Woodward did. Following the hearing, the chancellor barred Goodsell and Prisock indefinitely from practicing in the Fifth Circuit Chancery Court District, First Division.

¶ 12. The complaint tribunal found Pri-sock violated Mississippi Rules of Professional Conduct (a)(4), 3.4(b) and 4.1(a) and (b). The tribunal imposed an eighteen-month suspension to run consecutively with the eighteen-month suspension in the Rainey matter, and also placed Prisock on disability status according to Mississippi Rules of Discipline 17 through 25.

¶ 13. In Cause Number 93-B-1034, the complaint tribunal found Prisock violated Mississippi Rules of Professional Conduct 1.3 and 1.4(a) in his representation of T.B. in a paternity matter. A hearing took place in November 1992, in which the father admitted the minor child was his son and agreed to pay to T.B. child support of $100 a month, as well as to provide medical insurance for the child. Prisock stated to the chancery court that he would draft an order reflecting same and submit the order to the chancellor and clerk for filing.

¶ 14. T.B. testified she tried to contact Prisock at his office, but was not able to reach him until two weeks after the hearing. When T.B. finally spoke with Prisock, Prisock told her he did not remember agreeing to draft the order, but he would check his file. When T.B. again did not hear from Prisoek, she again contacted him. Prisoek assured her he would prepare and file the order. After receiving this assurance from Prisoek, T.B. did not hear from Prisoek, despite making repeated calls to his office and finally sending him a letter.

¶ 15. In February 1993, the order still had not been entered. T.B. contacted Pri-sock’s office and scheduled an appointment which Prisoek subsequently cancelled. As of the date of Prisock’s hearing before the complaint tribunal, the child’s father had provided neither support nor medical insurance.

¶ 16. The complaint tribunal found that Prisoek violated Mississippi Rules of Professional Conduct 1.3 and 1.4(a) and suspended him for eighteen months, to run consecutively with his previous suspensions. The tribunal placed Prisoek on disability status pursuant to Mississippi Rules of Discipline 17 through 25, and Prisoek was required to participate in a substance-abuse program and complete a therapy program.

¶ 17. In addition to his suspension and participation in a substance-abuse program, Prisoek also was ordered to pay restitution to T.B. in the amount of $100 a month for twelve months. The Bar stated in its answer to this proceeding that Pri-sock had made full restitution to T.B.

¶ 18. The waiting period within which to apply for reinstatement as mandated by Mississippi Rule of Discipline 12.2 has been met. Prisoek now seeks reinstatement to the practice of law.

STANDARD OF REVIEW

¶ 19. This Court has “exclusive and inherent jurisdiction of matters pertaining to attorney discipline [and] reinstatement. ..M.R.D. 1(a). This Court reviews “ ‘petitions for reinstatement de novo. We also sit as trier of fact and therefore are not bound by substantial evidence or manifest error rules.’ ” In Re Baldwin, 890 So.2d 56, 58 (Miss.2003) (quoting In Re Parsons, 849 So.2d 852, 854 (Miss.2002)).

ANALYSIS

¶ 20. Pursuant to Mississippi Rule of Discipline 12 and this Court’s decision in In Re Benson, an attorney must meet five requirements before he or she may be reinstated. As set forth in Benson, the following factors are required of the petitioner:

(1) state the cause or causes for suspension or disbarment; (2) give the name and current address of all persons, parties, firms or legal entities who suffered pecuniary loss due to the improper conduct; (3) make full amends and restitution; (4) show that he has the necessary moral character for the practice of law; and (5) demonstrate the requisite legal education to be reinstated to the privilege of practicing law.

In Re Benson, 890 So.2d 888, 890 (Miss. 2004).

¶ 21. Furthermore, the burden rests with Prisoek to demonstrate by clear and convincing evidence that he has been sufficiently rehabilitated and possesses the requisite moral character to be reinstated to the practice of law. See In Re Coleman, 949 So.2d 680, 683 (Miss.2006); Benson, 890 So.2d at 890; In Re Baldwin, 890 So.2d 56, 58 (Miss.2003); In Re Holleman, 826 So .2d 1243, 1246 (Miss.2002).

THE REINSTATEMENT PROCEEDING

¶ 22. The supplemental documents contain substantial facts not addressed by Pri-sock’s petition or the Bar’s answer. The supplemental documents and comments gleaned from the deposition of Prisock suggest the Bar was misinformed or misled regarding Prisock’s “road to rehabilitation.” The documents further evince a lack of understanding by the Bar of its investigative role to completely and fully develop the facts and to verify the petitioner’s offer of proof prior to apprising this Court of its findings and recommendations. The petition and all supporting documents are to be carefully vetted, versus a passive acquiescence to the averments of the petitioner. The testimony and supporting documents of a petitioner should be verified for truthfulness and accuracy. The role of the Board of Bar Commissioners and the Bar to conduct a thorough investigation of a candidate as well as the legitimacy and propriety of the petitioner’s request is a role which should not be taken lightly or as a matter of routine. Prisock has failed to demonstrate by clear and convincing evidence that he is entitled to reinstatement.

¶ 23. The Benson factors as applied to the case sub judice are as follows:

¶ 24. (1) State the cause or causes for suspension or disbarment: In his Petition, Prisock sets forth the Rules of Professional Conduct which were violated and the factors surrounding each of the violations. Prisock has adequately stated the causes for his suspension.

¶ 25. (2) Give the name and current address of all persons, parties, firms or legal entities who suffered pecuniary loss due to the improper conduct: In this matter, three parties suffered harm due to Prisock’s conduct. In his petition, Prisock lists each of these three parties and their addresses. Only one of these parties, T.B., suffered any actual pecuniary loss due to Prisock’s conduct.

¶ 26. (3) Make full amends and restitution: Prisock and the Bar correctly pleaded that T.B. received restitution from Prisock, albeit without illuminating the truth, ie., Prisock’s untimeliness in complying with the tribunal’s restitution order. Inspection of the exhibits reveals that the order to pay was rendered by the tribunal in 1994, yet Prisock inexplicably failed to .make restitution until August 2006, twelve years after being ordered to do so, which coincidentally was only a few months before Prisock’s petition for reinstatement was filed. The inference which can be drawn therefrom is that Prisock’s motivation was to fulfill reinstatement requirements, as opposed to compliance with the tribunal’s order and making amends to T.B.

¶ 27. To make amends is to make “reparation for insult, injury or loss.” Webster’s New College Dictionary 36 (2001). To make restitution is “1. [a]n act of restoring to the proper owner something taken away, lost or surrendered. 2.[a]n act of repaying or compensating for loss, damage, or injury. 3.[a] return to or restoration of a former state or position.” Id. at 945. Although Prisock ultimately reimbursed T.B., albeit twelve years late, does this act justly satisfy the amends and restitution requirement? Was the act of repayment in compliance with an order to return or restore T.B. to her former state or position? While Prisock technically satisfied the restitution prong, it is questionable whether full amends were met by a twelve-year-delayed payment to a single mother raising a child without the benefit of court-ordered child support.

¶ 28. Prisock has reimbursed the Bar for the costs of proceedings, so in this regard, Prisock has satisfied this Benson factor.

¶29. (4) Shows the necessary moral character for the practice of law: Prisock “bears the burden of proving to this Court, by clear and convincing evidence, that he is rehabilitated and possesses the requisite moral character for reinstatement to the practice of law.” In re Coleman, 949 So.2d 680, 683 (Miss.2006).

¶ 30. In his first deposition in this proceeding, Prisock stated since he moved to Texas after being suspended, he has made an effort to change his life. Prisock testified he “failed his first family” and that “moving to Texas was my chance for a clean slate, a do-over and I wanted to do it the right way.” Prisock remarried and stated he and his wife are very active members of their church in Texas. They are involved in the children’s ministry and regularly serve as church nursery volunteers. The Prisocks are also involved in an adult Bible fellowship through which they do much charity work, including work for Habitat for Humanity and victims of Hurricane Katrina. Prisock also is a member of a “growth group” at his church and a program called Dynamic Dads, which teaches fathers to be Christian role models for their children. In his deposition, Prisock asserted he performs twenty to thirty hours of church or charitable work a month.

¶31. The supplemental filings, however, do not support such a virtuous picture. They reveal the following:

a) In June of 1994, Prisock was held in wilful contempt for violating the judgment of divorce by:
i) Failure to pay alimony.
ii) Failure to pay child support for a number of months in 1994.
iii) Failure to pay his children’s and ex-wife’s medical bills.
iv) Failure to pay pre-school, private school, and after-school care tuition for parts of 1993 and 1994.
b) In September of 1994:
i) A judgment was entered against Pri-sock in the amount of $4,038 for past-due child support, school tuition and daycare costs.
ii) Prisock was ordered to sell property, with a percentage of the proceeds to be placed in an interest-bearing account to secure three years’ future payment of child support.
c) In October of 1995, Prisock was again held in wilful contempt for:
i) Failure to pay child support and medical insurance premiums for parts of 1994 and 1995.
d) In February of 2000, Prisock was again held in contempt of court for:
i) Failure to pay his children’s medical insurance premiums for all of 1997 through 1999, and parts of 2000.
ii) Failure to pay his children’s medical and dental expenses not covered by insurance.
iii) Prisock was also ordered to pay child-support arrearage with interest.
e) In June of 2003, Prisock was held in wilful civil contempt for:
i) Failure to pay his children’s dental expenses, medical expenses, and medical insurance premiums.

¶ 32. In a supplemental/second deposition taken by the Bar, Prisock blamed his ex-wife for not making demands or revealing expenditures. Prisock asserted, “I don’t think it was a single one of these that even went 24 hours needing being paid,” which is inconsistent with the supplemental documents considered by this Court. Assuming arguendo, some merit exists for his excuse of not receiving timely notice of medical and dental expenses, obligations such as tuition, medical insurance, and child support were known, recurring expenses.

¶ 33. Prisoek’s forthrightness regarding the Woodward matter also is questionable. In his first deposition taken while seeking reinstatement, Prisock testified that he believed Woodward had been wearing a cast on his right arm. Prisock testified that he should have stated to Chancellor Robinson that he “did not recall” if he actually saw Woodward sign the document. Prisock only admitted to the Tribunal that he “gave the impression ” to Chancellor Robinson that he had seen Woodward sign the document and that that “was the worst judgment that I’ve made in my entire life.” Prisock’s refusal to fully acknowledge that he furnished perjured testimony in the Chancery Court of Hinds County and to the tribunal, only then to offer a feeble excuse for his conduct that he was trying to “help the client” and protect his status as a notary, and that it was not his plan to lie when he entered the hearing, is unconvincing.

¶34. The supplemental filings reveal that Prisock filed for Chapter 7 bankruptcy in 1997, allegedly because he was “concerned about people filing lawsuits or claims from me closing my practice down. I filed a Chapter 7 just to kind of wipe the slate clean, that I’d be okay.” The bankruptcy was dismissed by motion of the trustee in 1998. Prisock again filed for bankruptcy in 1999, but later moved to have it dismissed because of a dispute with the Internal Revenue Service, which will be discussed infra.

¶ 85. Prisock currently is in a dispute with the IRS regarding taxes on his income for 1987, 1988 and 1992. Prisock stated he believed the dispute over his 1992 taxes has been resolved, but he is not sure, because he continues to make payments and “it’s hard to tell.”

¶ 36. Also included in the supplemental pleadings was a history of misdemeanor criminal charges against Prisock:

a) In 1995, Prisock was convicted of unlawfully carrying a weapon. Prisock received deferred adjudication and six months probation, with a fine of $200.
b) On two occasions in 1996, and then again in 1998 and 1999, Prisock was found to have committed theft by check in Texas. In each case, only after Prisock received notice of the proceedings did he make restitution, resulting in the cases being dismissed.

¶ 37. Regarding his mental/emotional health, Prisock has completed the therapy program which was ordered by the complaint tribunal. In addition to this therapy program, Prisock has completed a substance-abuse evaluation performed by the Redbird Program, which handles substance-abuse monitoring for the Texas State Bar. Prisock also has been evaluated by the Mississippi Lawyers and Judges Assistance Program. On January 16, 2007, Michael Bickers, a licensed psychotherapist, submitted an opinion to the Mississippi Lawyers and Judges Assistance Program in which he stated that Prisock was “cooperative throughout the process” and that Prisock “does not show any evidence supporting the criteria for alcohol dependence or alcohol abuse.” In his deposition, Prisock stated that he does not have a problem with alcohol, but that depression “was the hardest battle” and that he attends monthly, informal meetings sponsored by the Texas State Bar for attorneys with issues with substance abuse and depression.

¶ 38. Prisock has submitted twenty-two letters of recommendation along with his petition. In soliciting these letters, Pri-sock stated he informed each person of the reasons for his suspension and what he has done to better himself since the suspension. These letters were submitted by eight members of the Mississippi Bar, ten attorneys from out of state, and three non-attorneys. Each letter acknowledges Pri-sock’s effort to better himself, supporting his reinstatement to the Bar. One Mississippi attorney wrote, “Kerry Prisock has changed. He is truly sorry for his past mistakes and has worked to correct them. He will be a credit to the Bar when reinstated.” The Bar offered no evidence of inquiry to determine the truthfulness of these claims, and therefore, these claims are accepted without dispute.

¶39. Prisock testified he realized how important his law license was to him. He stated, “[P]art of being a new person and becoming the person you can be and you want to be, you’ve got to face your demons. And I knew I needed to come back [to Mississippi] ... it was the right thing to do, come back here and make things right.... ”

¶ 40. Subsequent to his suspension, Pri-sock moved to Texas, where he became employed by the Harmon Law Firm as a paralegal for five years. After his employment with the Harmon Firm, Prisock was employed by Double Diamond Company, where he prepared documents relating to real-estate transactions. This led to em--ployment with Richmond Title Services, where Prisock currently is employed. His job title and actions during this employment raise additional substantial impediments to his reinstatement.

¶41. At Richmond Title Services, Pri-sock is a licensed escrow officer. He stated that he performs tasks related to real-estate transactions under the supervision of the company’s general counsel. Prior to the initial hearing before the Tribunal, the Bar raised a concern as to Prisock’s job title at Richmond Title. Two of the letters attached to Priscock’s petition for reinstatement referenced Prisock as “Senior In-House Counsel” for Richmond Title. The use of this title is in contradiction with the suspension order, which stated Prisock was not to use his name “in any manner, in conjunction with the phrases ... ‘counsel- or at law, counselor ... ’ for the period of his suspension until such time as he is reinstated.”

¶ 42. In response to the Bar’s concern, Prisock submitted affidavits from the authors of the two letters which identified him as “Senior In-House Counsel.” The authors asserted they had not observed Prisock engaged in the unauthorized practice of law. Prisock submitted an additional affidavit from the general counsel for Richmond Title, which stated she had not observed Prisock engaged in the unauthorized practice of law and that she had advised Prisock not to render any legal opinions to the general public, or “to hold himself out to the public or any Richmond customer as an attorney or a member of any bar association.” Prisock also submitted an affidavit which declared, “In light of the concerns voiced by the Mississippi State Bar and to avoid the appearance of impropriety, my job at Richmond Title Services, LP, has been changed to Legal Department Manager, at my request.”

¶ 43. The use and subsequent change in title led to separate inquiry regarding reciprocal discipline or the lack thereof. In his petition for reinstatement, Prisock stated he was licensed to practice in Tennessee, but he failed to mention that reciprocal discipline had been imposed. The reciprocal action by the Tennessee Bar was brought to light only after the Bar and Prisock were ordered to supplement the record.

¶ 44. Section 17 of the Tennessee Supreme Court Rules of Discipline holds that it is the duty of the disciplined attorney to inform the Tennessee Bar of any disciplinary action in another state, which Prisock failed to adhere to subsequent to the multiple disciplinary actions taken by the Mississippi Bar. Additionally, Mississippi Rule of Discipline 11(c) (emphasis added) states:

(c) A disbarred, suspended or resigned attorney shall: (1) notify all clients of his disbarment, suspension or resignation and his consequent inability to act as an attorney after the effective date of his disbarment, suspension or resignation;
(2) notify each client involved in pending litigation or administrative proceedings and the attorney or attorneys for each adverse party in such proceedings, of his disbarment, suspension or resignation and consequent inability to act as an attorney after the effective date of his disbarment, suspension or resignation;
(3) advise each client promptly to substitute another attorney or attorneys in his place or to seek legal advice elsewhere; ft) notify all [ajjfected comts and agencies of his disbarment, suspension or resignation and consequent inability to act as an attorney after the effective date thereof; and (5) give such other notice as the disciplinary agency last having jurisdiction may direct in the public interest.

¶ 45. In the files regarding the complaints which originally led to Prisock’s suspension, there is no reference to Pri-sock’s Tennessee license or notice to the Tennessee Bar that Prisock had been suspended in Mississippi. In his supplemental deposition in this proceeding, Prisock was asked if he informed the Mississippi Bar of his Tennessee license, and he stated he did not recall. He unsuccessfully attempts to shift his duty to the Bar by claiming it was his understanding that it was the responsibility of the Mississippi Bar to inform Tennessee of his suspension, a position totally inconsistent with the Tennessee rules.

¶ 46. Prisock further testified that after he was suspended in Mississippi, he did not receive notice he would be suspended in Tennessee. However, “I treated it— once we had the 18 month suspension from the Tribunal, I closed up practice. As far as I was concerned, I was suspended across the board.” However, in the same deposition, Prisock contrarily testified that to his knowledge, he held a valid law license in Tennessee from 1994 until 2006, subject to three administrative suspensions in 1992, 1996, and 2004 for failure to pay dues and failure to file continuing legal education exemptions. The record fails to reveal the length or dates of the administrative suspensions by the Tennessee Bar, although documents obtained in the supplemental filings reveal Prisock claimed admission to the Tennessee Bar throughout the years of 1992 through 2006.

¶ 47. Although Prisock stated he treated his discipline in Mississippi as a “suspension across the board,” Prisock advised others he was licensed in Tennessee to practice law. Included in the supplemental filings requested by this Court was Prisock’s 2002 application for employment at Double Diamond, in which he averred that he held a Tennessee law license. Additionally, in the supplemental filings, copies of correspondence Prisock issued while employed by Richmond Title stated he was “General Counsel,” and “Admitted to practice in Tennessee only” from 2004 until his Tennessee suspension in March of 2006.

¶ 48. In 2005, Richmond Title was named in a lawsuit which alleged fraudulent investment schemes. Prisock had notarized several property-conveyance documents at issue in the suit. It is Prisock’s belief that the attorneys for the plaintiffs learned of his Mississippi suspension, as the complaint was later amended to name Prisock individually. The plaintiffs alleged Prisock notarized a forged signature on a property conveyance. After the filing of the amended complaint, Prisock learned Tennessee was initiating reciprocal discipline against him. Prisock stated he believed the attorneys for the plaintiffs did some “background work on me. They decided that they felt like Tennessee did not impose reciprocal discipline and brought that to the attention of the Tennessee Bar.” His account of how Tennessee learned of the Mississippi disciplinary action is of no consequence, for it only confirms that Prisock had not notified the Tennessee authorities.

¶49. On March 6, 2006, the Supreme Court of Tennessee entered an order suspending Prisock from the practice of law in Tennessee for a term of eighteen months, concurrent with his suspension in Mississippi, which is still in force. The order further stated that if Prisock wished to practice in Tennessee again, he would have to apply for reinstatement pursuant to Rule 9 of the Rules of the Tennessee Supreme Court and that the Tennessee Court might consider compliance with the conditions imposed by Mississippi for reinstatement.

¶ 50. Subsequent to discipline being imposed in Tennessee, Prisock retained Tennessee counsel. Prisock’s counsel stated that he believed that Prisock, under the rules of the Tennessee Supreme Court, was entitled to a hearing before a three-judge panel before discipline was imposed. However, Prisock’s discipline was referred to a single Tennessee Supreme Court Justice who suspended Prisock’s Tennessee license for an eighteen-month period. Pri-sock further requested and was later denied a hearing before the entire Tennessee Supreme Court, which he now claims was a denial of his due-process rights.

¶ 51. After being disciplined in Tennessee, “General Counsel” and “Admitted to practice in Tennessee only” was redacted from Prisock’s stationery at Richmond Title. Prisock’s stationery was then changed to read “Senior In-House Counsel,” with a notation at the top of each piece of correspondence, reading, “ * Not admitted to practice in (State).” Presumably, the blank would be filled in with the name of the state to which the correspondence was being sent. The letterhead dearly implied that Prisock was licensed to practice in a state other than the home state of the recipient. It was only after the Bar raised this concern that Prisock’s title changed to “Manager, Legal Department,” even though his stationery continued to note, “ * Not admitted to practice in (State).”

¶ 52. Prisock claims he rendered no legal opinions to the public. Prisock testified by affidavit in support of his initial petition that “[a]ny correspondence clearly indicates that I am not a member of the Bar....” In his supplemental deposition with the Bar, Prisock was asked to speak to the notation on his stationery which implied he was licensed to practice. Pri-sock disavowed such interpretation, stating, “I never thought of it giving that impression,” and that it “wasn’t my intent to give an inference or impression that I was a member of a Bar somewhere,” an impression or inference which this Court finds disingenuous and unacceptable.

¶ 53. While the Bar states it expressed concern about Prisock’s use of the title “Senior In-House Counsel,” the Bar asserted in its initial answer that there was no clear and convincing evidence that Pri-sock engaged in the practice of law while suspended. The Bar’s conclusion is manifestly in error based upon the overwhelming weight of the evidence to the contrary. The Bar erroneously applies the “clear and convincing” burden, a legal error. It is Prisoclc’s burden to prove by clear and convincing evidence that he adhered to the order of the complaint tribunal not to engage in the unauthorized practice of law. Given the evidence in this case, Prisock fails to meet this burden. After reviewing the supplemental documents and taking a second deposition, the Bar stated Prisock’s title and stationery remained “areas of concern,” but that because Prisock admitted in his deposition that it was not his intention to mislead anyone, the Bar would maintain its position that Prisock should be reinstated.

¶ 54. (5) Demonstrates the requisite legal education to be reinstated to the privilege of practicing law: Pursuant to Mississippi Rule of Discipline 12.5, Prisock was required to take and pass the Multi-state Professional Responsibility Exam with a scaled score of 80. Prisock completed this exam with a scaled score of 93.

¶ 55. In addition to his legal employment, Prisock submits he has kept abreast of developments in the law by undertaking extensive legal education. Prisock states he attends seminars hosted by the Dallas Bar Association and that he attended the Texas State Bar Advanced Real Estate Law Course. As a licensed escrow officer in Texas, Prisock attends the seminars for their continuing education program. This office also requires Prisock to attend the legislative and attorney sections of the annual meetings for licensed escrow officers, which would qualify him for fifteen hours of continuing legal education credit for the Texas Bar Association. Prisock also testified in his deposition that he regularly reads the opinions of this Court and the Mississippi Court of Appeals and that because of his job, he has been “proactive in reading legislation ... for Mississippi as well as the other 49 states.”

¶ 56. Finally, Prisock has indicated his future plans are to stay in Texas and to sit for the Texas State Bar Exam. However, the State of Texas has denied Prisock’s application to take the Bar exam. On his application dated March 30, 2007, under the heading “Type of Applicant,” Prisock stated he is a “licensed Attorney in another U.S. jurisdiction.” However, later in the application, Prisock disclosed his suspensions in Mississippi and Tennessee. Even so, he listed his “Current Status” as “Active” in the Federal Court for the Northern District of Texas.

¶ 57. In a letter sent in May 2007 to the Board of Texas Bar Examiners, counsel for Prisock stated that Prisock will make application for reinstatement at an early date in Tennessee and that he had “undertaken steps to secure the reinstatement of his license by the State of Mississippi with the expectation that a favorable ruling from the Mississippi Supreme Court will be forthcoming in the very near future.” Prisock states his opportunities at his current job are limited without a law license, and that if he is reinstated in Mississippi, he will be better able to assist his company in moving into the real estate market in Mississippi. Prisock testified in his supplemental deposition that it is his hope that he can reinstated in Mississippi and then Tennessee, and then he will be allowed to take the Texas Bar Exam.

¶ 58. Prisock testified he has “rediscovered his love for the law.” If his reinstatement is denied, Prisock testified he will “continue to improve” and “reapply-this is a part of me I’ve got to make right.”

CONCLUSION

¶ 59. Based upon the evidence in this case, it is obvious the Bar has passively accepted the testimony of Prisock without question or investigation. It is the duty of the Bar, acting as complaint counsel, to “investigate complaints, prosecute formal complaints, and discharge other duties assigned by the Board of Bar Commissioners. Complaint counsel shall conduct any investigation or investigatory hearing fairly and impartially and shall seek to elicit any and all facts which might be exculpatory or incriminatory of the accused attorney. ...” M.R.D. 5. Prisock attempted to mislead the Bar and this Court, and the Bar, through limited investigation, accepted Prisock’s averments. However, Pri-sock’s actions contradict his words by his unwillingness to be forthright, and this will not be tolerated by this Court.

¶ 60. Although it is the position of the Mississippi Bar that Prisock should be reinstated, “[t]his Court retains exclusive jurisdiction and is the ultimate judge of attorney discipline matters, pursuant to Rule 1(a) of the Rules of Discipline for the Mississippi State Bar .... [and] [t]his Court is free to modify the punishment as needed to best serve the interests of the Bar and the public.” Miss. Bar v. Hodges, 949 So.2d 683, 685 (Miss.2006) (citations omitted). This Court cannot agree with the Bar’s conclusion that Prisock has demonstrated “by clear and convincing evidence, that he is rehabilitated and possesses the requisite moral character for reinstatement to the practice of law.” In re Coleman, 949 So.2d at 683. Prisock’s Petition for Reinstatement is therefore denied.

¶ 61. KERRY L. PRISOCK’S PETITION FOR REINSTATEMENT TO THE PRIVILEGE OF PRACTICING LAW IN THE STATE OF MISSISSIPPI IS DENIED.

SMITH, C.J., WALLER, P.J., CARLSON, DICKINSON AND LAMAR, JJ., CONCUR. DIAZ, P.J., EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION.

      . Mississippi Rule of Discipline 12.8 states, "Upon receipt of the reinstatement petition, the Court shall allow the Board of Bar Commissioners thirty (30) days within which to conduct an investigation and fully answer the petition. After filing pleadings or notice on behalf of the Bar, the proceedings shall continue, if necessary or desirable, as the Court may direct and the Court, in its discretion, may grant or deny the petition as circumstances and justice require.”

      . Initials will be used as this case involved a minor.

      . The supplemental filings, which included correspondence from Prisock to Richmond customers, evidenced numerous letters authored by Prisock which stated he was Senior or General In-House Counsel for Richmond Title.

      . The lawsuit against Prisock and Richmond Title subsequently was settled and dismissed.

      . Rule IV(e)(2) of die Rules Governing Admission to the Bar of Texas states, in pertinent part, "An individual who has been disciplined for professional misconduct in the course of practicing law is deemed not to have present good moral character and fitness and is ineligible to file an Application for Admission to the Texas Bar during the period of such discipline imposed by such jurisdiction, and in the case of disbarment, until the disciplined individual has properly filed an application for re-licensure in the disciplining jurisdiction, in accordance with the procedures established for re-licensure in that jurisdiction, and has obtained a final determination on that application.”