author: PETTIGREW, J.

text:
    McLANE SOUTHERN, INC. v. Cynthia BRIDGES, Secretary of the Department of Revenue of the State of Louisiana.
    No. 2010 CA 1259.
    Court of Appeal of Louisiana, First Circuit.
    May 6, 2011.

      George Denegre, Jr., Robert S. Angelico, Dena L. Oliver, New Orleans, LA, for Plaintiff-Appellant McLane Southern, Inc.
    Antonio Charles Ferachi, Baton Rouge, LA, for Defendant-Appellee Cynthia Bridges, Secretary of the Louisiana Department of Revenue.
    Before KUHN, PETTIGREW, and HIGGINBOTHAM, JJ.
   PETTIGREW, J.

| ^Plaintiff, McLane Southern, Inc. (“McLane”), appeals a summary judgment of the trial court dismissing its claim against defendant, Louisiana Department of Revenue (“Department”), for refund of taxes paid under protest. For the reasons that follow, we reverse and render.

FACTS AND PROCEDURAL HISTORY

According to the record, McLane is a wholesaler of tobacco products whose business facility is located in Mississippi. As part of its business, McLane sells smokeless tobacco products to retail establishments in Louisiana. McLane purchases its smokeless tobacco products from its smokeless tobacco supplier, U.S. Smokeless Tobacco Brands, Inc. (“UST-Sales”), an affiliate of U.S. Smokeless Tobacco Manufacturing Company (“UST-Manufacturing”). UST-Manufacturing sells to UST-Sales the smokeless tobacco products that UST-Sales then sells to McLane. All of these sales occur outside of Louisiana. McLane then sells the smokeless tobacco products to its customers, which are primarily grocery stores and small convenience stores in Louisiana.

On December 14, 2006, McLane filed a petition for refund of tobacco tax paid under protest relative to the smokeless tobacco it had sold in Louisiana in October 2006. According to McLane, on November 17, 2006, it had paid $65,458.24 in Louisiana tobacco taxes allegedly due, $58,236.10 of which had been paid towards smokeless tobacco taxes that were allegedly due. Originally, McLane only challenged the Department’s contention that the 20 percent tax rate for smokeless tobacco products found in La. R.S. 47:841 applied to UST-Sales’ invoice price to McLane rather than UST-Manufacturing’s lower invoice price to UST-Sales. Thereafter, however, McLane amended its petition to assert a claim that it did not owe the tax as assessed by the Department because the only statute that imposes liability upon a taxpayer for payment of taxes imposed pursuant to La. R.S. |s47:841 is La. R.S. 47:854 and this statute does not impose tax liability upon persons who manufacture or purchase smokeless tobacco. In the alternative, McLane argued that to the extent that it is deemed to be responsible for payment of the tax at issue, the correct invoice price upon which the 20 percent tax imposed pursuant to La. R.S. 47:841 should be calculated is that price for which UST-Manufacturing sold the smokeless tobacco products to UST-Sales, not the price for which UST-Sales sold the products to McLane. McLane further maintained that La. R.S. 47:841 violated the Commerce Clause of the United States Constitution as it afforded more favorable taxation to tobacco dealers purchasing products from an in-state distribution chain than it did to tobacco dealers purchasing products from an out-of-state distribution chain.

Following discovery, the parties filed cross motions for summary judgment. McLane argued that it was entitled to judgment in its favor ordering the Department to refund the full amount of the taxes it paid under protest for the month of October 2006, and for each month thereafter, plus interest thereon. The Department argued it was entitled to a judgment finding that (1) McLane was a dealer of smokeless tobacco products and responsible for the tobacco tax on smokeless tobacco products; (2) the price paid by McLane to purchase the smokeless tobacco products from UST-Sales sets the tobacco tax base; (3) the taxable base being set by the price paid by McLane to purchase the products from UST-Sales is not unconstitutional as being in violation of the Commerce Clause; and (4) McLane is not entitled to a refund of taxes paid under protest.

The motions proceeded to hearing on May 10, 2010, at which time the parties stipulated that there were no facts in dispute and that the issue before the trial court was the correct legal interpretation of the Louisiana tobacco tax statutes. After hearing argument from the parties and considering the applicable law and the evidence in the record, the trial court denied the motion for summary judgment filed by McLane, granted the motion for summary judgment filed by the Department, and dismissed, with prejudice, McLane’s claims against the Department for refund of taxes paid under protest. |4A judgment in accordance with the trial court’s findings was signed on May 27, 2010. This appeal by McLane followed.

ASSIGNMENTS OF ERROR

1. The district court erred as a matter of law in holding that McLane ... is hable for the excise taxes it has paid under protest levied as to smokeless tobacco under [La. R.S.] 47:841(E). The district court imposed the tax on McLane although the Tobacco Tax Statutes ... do not contain an express provision imposing liability upon any taxpayer, including McLane, for payment of this tax.
2. To the extent McLane is deemed to be liable for payment of the tax on smokeless tobacco, the district court erred as a matter of law in concluding that the twenty percent (20%) excise tax levied as to smokeless tobacco under section 841(E), which is applied to the “invoice price” as defined in section 842(12), should be calculated on the price that McLane pays to its tobacco supplier, rather than the lower manufacturer’s net invoice price as invoiced by the manufacturer to McLane’s tobacco supplier. In so holding, the district court read out the term “manufacturer” in the definition of “invoice price” and ignored mandatory rules of statutory construction applicable to taxing statutes including strict construction against the taxing authority and adoption of the construction favorable to the taxpayer where more than one reasonable interpretation exists.
3. The district court erred as a matter of law in adopting the interpretation of the Tobacco Tax Statutes advanced by the Louisiana Department of Revenue as this interpretation renders the Tobacco Tax Statutes unconstitutional under the Dormant Commerce Clause of the United States Constitution on account of their discrimination against out-of-state wholesalers like McLane.

SUMMARY JUDGMENT

Summary judgments are reviewed on appeal de novo. Boudreaux v. Vankerkhove, 2007-2555, p. 5 (La.App. 1 Cir. 8/11/08), 993 So.2d 725, 729-730. An appellate court thus asks the same questions as does the trial court in determining | ¡^whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Ernest v. Petroleum Service Corp., 2002-2482, p. 3 (La.App. 1 Cir. 11/19/03), 868 So.2d 96, 97, writ denied, 2003-3439 (La.2/20/04), 866 So.2d 830. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966(B).

When a motion for summary judgment is made and supported as provided by law, an adverse party may not rest on the mere allegations or denials of his pleading. His response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, will be rendered against him. La.Code Civ. P. art. 967; Robles v. ExxonMobile, 2002-0854, p. 4 (La.App. 1 Cir. 3/28/03), 844 So.2d 339, 341.

Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Bridgefield Cas. Ins. Co. v. J.E.S., Inc., 2009-0725, p. 4 (La.App. 1 Cir. 10/23/09), 29 So.3d 570, 573.

TOBACCO TAX STATUTES

The Louisiana Tobacco Tax Law is found in Sections 841-869 of Title 47 of the Revised Statutes. It has two general purposes: the imposition of a tax upon the sale and distribution of tobacco products, and the regulation of those persons who engage in the sale and distribution of such products so as to insure collection of the tax. Southland Corp. v. Collector of Revenue for Louisiana, 321 So.2d 501, 502 (La.1975).

Louisiana Revised Statutes 47:841 provides for the levy of an excise tax upon the “sale, use, consumption, handling, or distribution” within Louisiana of the various tobacco products listed therein. Pursuant to La. Acts 2000, No. 32 § 1, La. R.S. 47:841 |„was amended to add smokeless tobacco to the list of tobacco products included. The statute provides, in pertinent part, as follows:

There is hereby levied a tax upon the sale, use, consumption, handling, or distribution of all cigars, cigarettes, and smoking and smokeless tobacco, as defined herein, within the state of Louisiana, according to the classification and rates hereinafter set forth:
E. Smokeless tobacco. Upon smokeless tobacco, a tax of twenty percent of the invoice price as defined in this Chapter.

The statute that imposes liability for payment of the taxes levied in La. R.S. 47:841 is La. R.S. 47:854, which provides as follows:

It is the intent and purpose of this Chapter to levy an excise tax on all cigars, cigarettes and smoking tobacco, as defined in this Chapter, sold, used, consumed, handled or distributed in this state, except as provided in R.S. 47:855 and to collect same from the dealer who first sells, uses, consumes, handles or distributes the same in the State of Louisiana.
It is further the intent and purpose of this Chapter that where a dealer gives away cigars, cigarettes or smoking tobacco for advertising or any other purpose whatsoever the same shall be taxed in the same manner as if they were sold, used, consumed, handled or distributed in this state. [Emphasis added.]

There is no mention of smokeless tobacco in La. R.S. 47:854. In fact, the only other statute that address smokeless tobacco within the Louisiana Tobacco Tax. Law is La. R.S. 47:842(15), which defines smokeless tobacco as including but not limited to “fine cut, long cut, packed in pouches, snuff, snuff flower, chewing tobacco, ca-vendish, plugs, twists, shorts, refuse and other scraps, clippings and sweepings of tobacco, and other forms of loose tobacco, articles and products made of tobacco, or a tobacco substitute.”

It is a well-established principle of statutory construction that absent clear evidence of a contrary legislative intention, a statute should be interpreted according to its plain language. Cleco Evangeline, LLC v. Louisiana Tax Com’n, 2001-2162, p. 5 (La.4/3/02), 813 So.2d 351, 354. ‘When a law is clear and unambiguous and its 17application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” La. Civ.Code art. 9. This principle applies to tax statutes. Tarver v. E.I. Du Pont De Nemours and Co., 93-1005, p. 3 (La.3/24/94), 634 So.2d 356, 358.

In brief to this court, McLane argues that “[wjhether by mistake or design, a provision assessing liability upon McLane or any other taxpayer for payment of the smokeless tobacco tax simply does not exist.” Noting that Louisiana courts have consistently applied the strict construction of tax statutes in favor of the taxpayer for a period of over sixty years, McLane continues, “[t]he Department’s arguments, whether based upon a reading of the statutes in pari materia or an inference that the Legislature’s amendment of certain statutes in a group amended all such statutes, necessarily mandate that this Court supply a statutory provision to impose tax liability on McLane.” Thus, McLane asserts, this court must reverse the trial court’s ruling denying McLane’s claim for refund of taxes paid under protest.

In response, the Department argues that when the Legislature enacted the tax on smokeless tobacco in 2000, it knew that a procedure already existed in La. R.S. 47:854 for the collection of tax on sales of tobacco products in Louisiana. The Department asserts that the tobacco tax statutes should be read in pari materia to reconcile any inconsistencies or ambiguities therein. The Department maintains:

Given La. R.S. 47:841 was amended last in 2000 and is the latest expression of legislative will, the Legislature has impliedly expressed an intention that La. R.S. 47:841 is controlling and modified La. R.S. 47:854 to allow for the collection of tax on smokeless tobacco products in the same manner as is prescribed for all other tobacco products under La. R.S. 47:854. When read together, the tax levied in La. R.S. 47:481 is to be collected in the same manner as the tax on all other tobacco products, which McLane has complied with for over eight years.

The Department’s argument is flawed in many respects. A fundamental rule of statutory construction is to give the statute its intended meaning. Faught v. Ryder/P*I*E Nationwide, Inc., 543 So.2d 918, 922 (La.App. 1 Cir.), writ denied, 545 So.2d 1040 (La.1989). More importantly, it is only when there is ambiguity that we are at liberty to engage in statutory interpretation: it is not our function to correct an error in the legislature’s expression of its intent unless that expression is unclear. Id. at 923. In the instant case, there has been no suggestion that any of the statutes in question are ambiguous. Rather, the fact is that when the Legislature amended La. R.S. 47:841 to provide for a tax on smokeless tobacco, it failed to expressly provide for the imposition of the tax in La. R.S. 47:854 by amending said statute accordingly.

Absent evidence to the contrary, the language of the statute itself must clearly and unambiguously express the intent to apply to the property in question. Unless the words imposing the tax are expressly in the statute, the tax cannot be imposed. Cleco Evangeline, LLC, 2001-2162 at 7, 813 So.2d at 355. It is also well-established that tax laws are to be interpreted liberally in favor of taxpayers and that the words defining things to be taxed should not be extended beyond their clear import. Uncertainty in the language of the statute must be resolved against the government and in favor of the taxpayer. Hibernia Nat. Bank in New Orleans v. Louisiana Tax Com’n, 195 La. 43, 54, 196 So. 15, 18 (La.1940).

The function of courts, in construing statutes, is to interpret legislative will, and not to supplement or supply it. Hurt v. Superior Cable Installation, Inc., 99-2982, p. 6 (La.App. 1 Cir. 5/12/00), 762 So.2d 705, 708-709, writ not considered, 2000-1950 (La.9/29/00), 769 So.2d 549 (citing Levy v. New Orleans & N.E.R. Co., 20 So.2d 559, 562 (La.App.1945)).

It would be a dangerous practice indeed for courts to attempt to decide that an ordinance or a statute which by its express wording is limited to a certain thing or subject should be extended to others which, though possibly similar, are not included within the express terms of the statute or ordinance. If there is a necessity that such enactments be amended ... the amendments should come from the municipal authorities or the state legislators. They cannot come from the courts.

Levy, 20 So.2d at 562.

Based on the above applicable law and our appreciation of the Louisiana Tobacco Tax Laws as they now exist, we conclude that it is not our function to correct an error in |nthe Legislature’s expression of its intent. We cannot impose tax liability in the absence of express language that the tax is to be imposed. There is no such language in the tobacco tax laws concerning smokeless tobacco products and it is not our place to supply it. Accordingly, we reverse the trial court’s judgment in favor of the Department, grant the motion for summary judgment filed by McLane, and render judgment in favor of McLane for refund of all smokeless tobacco taxes paid under protest since the filing of its petition in this case.

CONCLUSION

For the above and foregoing reasons, we find the trial court erred in denying McLane’s petition for refund of taxes paid under protest. There is no specific statute imposing liability on McLane for the payment of the tax levied as to smokeless tobacco products. Therefore, the trial court’s judgment below is reversed and judgment is hereby rendered in favor of McLane and against the Department as follows:

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED, that the Department of Revenue’s Amended Motion for Summary Judgment is denied and McLane Southern, Inc.’s Motion for Summary Judgment is granted.
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED, that McLane Southern, Inc. is entitled to a refund of the taxes in the amount of $58,236.10 initially paid under protest for the month of October 2006 by McLane Southern, Inc., as well as the cumulative amount representing the smokeless tobacco tax paid under protest to the Department of Revenue for each month thereafter pursuant to an Agreement to Abide entered into with the Department of Revenue on January 16, 2007, along with interest thereon from the date of payment under protest at the rate provided for by law.

Appeal costs in the amount of $2,708.23 are assessed against the Louisiana Department of Revenue.

REVERSED AND RENDERED; MOTION TO SUPPLEMENT DENIED.

      . McLane also purchases smokeless tobacco products from Conwood Sales Company, LLC, which acquires the tobacco products it sells to McLane from an affiliated manufacturer, Conwood Company, LLC. The relationship and transactions among Conwood Sales Company, LLC, Conwood Company LLC, and McLane, for purposes of this appeal, are identical to those among UST-Sales, UST-Manufacturing, and McLane. Therefore, all references herein to UST-Sales include Conwood Sales Company, LLC, and all references to UST-Manufacturing include Conwood Company, LLC.

      . We note that on November 15, 2010, this matter was remanded to the trial court for the limited purpose of having the trial court sign a valid final judgment with appropriate decre-tal language as required by La.Code Civ. P. art. 1918. The record was subsequently supplemented with the trial court’s December 7, 2010 judgment that is before us now for review.

      . We note that McLane was granted an appeal from the trial court's judgment denying its motion for summary judgment while granting the Department’s cross motion for summary judgment. The denial of a motion for summary judgment is an interlocutory judgment and is not appealable absent a showing of irreparable injury. Ascension School Employees Credit Union v. Provost Salter Harper & Alford, L.L.C., 2006-0992, p. 2 (La.App. 1 Cir. 3/23/07), 960 So.2d 939, 940; La.Code Civ. P. arts. 968 and 2083(C). Therefore, the trial court's certification that the December 7, 2010 judgment was final and appealable was ineffectual regarding the denial of McLane's motion for summary judgment. Miller v. Superior Shipyard and Fabrication, Inc., 2001-2683, p. 4 n. 4 (La.App. 1 Cir. 11/8/02), 836 So.2d 200, 203 n. 4; Belanger v. Gabriel Chemicals, Inc., 2000-0747, p. 5 (La.App. 1 Cir. 5/23/01), 787 So.2d 559, 563, writ denied, 2001-2289 (La. 11/16/01), 802 So.2d 612. Nevertheless, the issues are the same in both motions, so our review of the trial court’s granting of summary judgment in favor of the Department will also constitute a review of the trial court's denial of McLane’s motion. Miller, 2001-2683 at 4 n. 4, 836 So.2d at 203 n. 4.

      . We note this statute was enacted by La. Acts 2000, No. 32 § 1, the same legislative action that amended La. R.S. 47:841 to provide for the taxation of smokeless tobacco products. Yet the Legislature chose not to take any action at that time to amend La. R.S. 47:854 to provide for the imposition of the tax.

      . Subsequent to filing the instant appeal, McLane filed a motion to supplement its original brief with a copy of an unpublished opinion that had been cited to in said brief. We have considered the motion and conclude that it is unnecessary to our analysis of this appeal to have the unpublished opinion that McLane references in the motion. Accordingly, the motion is hereby denied.

      . By reversing the trial court’s judgment and rendering judgment in favor of McLane, the remaining issues raised on appeal by McLane are rendered moot. Nonetheless, based on the statutory definition of "invoice price” found in La. R.S. 47:842(12), we do note serious concerns as to the Department’s interpretation of the term "invoice price” and how it was applied in the instant case.


source: Caselaw Access Project

author: GUIDRY, J.

license: Public Domain

text:
    Sidney JONES, Jr. v. INTERNATIONAL MAINTENANCE CORPORATION.
    No. 2010 CA 2181.
    Court of Appeal of Louisiana, First Circuit.
    May 6, 2011.

      Sidney Jones, Jr., Vacharie, LA, for PlaintifRAppellant In Proper Person.
    Charles J. Duhe, Jr., F. Dominic Amato, Baton Rouge, LA, for Defendant/Appellee International Maintenance Corporation.
    Before PARRO, GUIDRY, AND HUGHES, JJ.
   GUIDRY, J.

Un this workers’ compensation proceeding, the claimant appeals a judgment of the Workers’ Compensation Administration finding there was no causal connection between the claimant’s medical conditions and his workplace exposure to toxic chemicals. Finding the evidence presented supports the judgment, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 24, 2001, International Maintenance Corporation (IMC) employed the claimant, Sidney Jones, Jr., to work as a carpenter building scaffolding at a chemical plant in Westwego, Louisiana. While constructing a scaffold in the acrylonitrile unit of the plant, a technician flushed a vessel in the unit and released either hydrogen cyanide or acrylonitrile into the area where Mr. Jones and a crew of other carpenters were building a scaffold. Mr. Jones ran from the area of the exposure and then collapsed. On being restored to consciousness, Mr. Jones and the other members of the carpentry crew that worked in the area of the chemical exposure were transported by ambulance to West Jefferson Medical Center to be examined. After being examined at the hospital, the employees were released to go home.

On returning to work the following day, Mr. Jones continued to feel unwell, and he specifically complained of having headaches, trouble breathing, and feeling weak. His immediate supervisor, Adam Landry, also complained of continued illness following the incident, and as result, IMC transported the entire crew to Dr. David Reiss, the company doctor, to be examined. After examining the entire | screw, Dr. Reiss released them all to return to work, where they remained on the job for the rest of the day. The following day, however, Mr. Jones went to see his own family doctor and never returned to work thereafter.

On May 22, 2001, Mr. Jones filed a disputed claim for compensation (LDOL-WC-1008), seeking further medical treatment, wage benefits, and a determination of disability status. IMC answered the claim to admit that it employed Mr. Jones and that Mr. Jones was performing services in the course and scope of his employment at the time of the accident. In all other respects, however, IMC denied Mr. Jones’s claim.

Due to problems conducting discovery, changes in counsel, and the impact of Hurricane Katrina, the matter did not proceed to trial until November 23, 2009, at which hearing Mr. Jones represented himself in proper person. Following the hearing on Mr. Jones’s claim, the workers’ compensation judge (WCJ) found that the disability and various other medical conditions claimed by Mr. Jones were not caused by his workplace chemical exposure on April 24, 2001. Accordingly, the WCJ dismissed Mr. Jones’s claim with full prejudice in a judgment signed February 3, 2010, from which judgment Mr. Jones filed the instant appeal.

DISCUSSION

As in the proceedings below, Mr. Jones is pursuing the subject appeal in proper person. His brief to this court contains only a short statement labeled as “facts” and a list of three documents that Mr. Jones asserts counsel for IMC “never submitted” to the court of appeal. While Mr. Jones does make some assertions in the short statement, his brief clearly does not comply with the requirements of the Uniform Rules-Courts of Appeal, Rule 2-12.4. It has no assignments of error, no record references, no briefing of arguments, and no jurisdictional statement. However, the courts of this state have considered briefs in improper form when filed by pro se claimants. See Hale v. Labor Ready, 08-719, p. 1 (La.App. 3d Cir.12/10/08),4 999 So.2d 293, 294-95. Accordingly, we will consider the merits of Mr. Jones’s appeal, and specifically, the issue of whether the WCJ erred in finding that Mr. Jones’s existing medical conditions were not caused by his workplace chemical exposure. See La. C.C.P. art. 2164.

An employee is entitled to compensation benefits if he or she suffers a personal injury by an accident arising out of and in the course of employment. La. R.S. 23:1031. Under this statute, a successful claimant must prove a personal injury that is the result of an accident, which accident arises out of and was in the course of employment. Thus, the chain of causation required under the statute is that the employment causes the accident, the accident causes injury, and the injury causes disability. Buxton v. Iowa Police Department, 09-0520, pp. 11-12 (La.10/20/09), 23 So.3d 275, 283.

The test for determining the causal relationship between an accident and subsequent injury is whether the claimant proved through medical or lay testimony that it is more probable than not that the accident caused the subsequent injuries. Elder v. Sierc Inc. Oil & Fuel, 10-144, p. 8 (La.App. 5th Cir.10/12/10), 51 So.3d 54, 59. The employee has the burden of proving, by a preponderance of the evidence, that the resulting disability is related to an on-the-job injury. Buxton, 09-0520 at 12, 23 So.3d at 283.

In reviewing the WCJ’s factual determinations, including whether the employee has discharged his burden of proof, this court is bound by the manifest error standard of review. Under this two-part test, the appellate court must determine from the record whether there is a reasonable factual basis for the finding and whether the record further establishes that the finding is not manifestly erroneous. Roussell v. St. Tammany Parish School Board, 04-2622, p. 9 (La.App. 1st Cir.8/23/06), 943 So.2d 449, 457, writ not considered, 06-2362 (La.1/8/07), 948 So.2d 116.

| sin reviewing the record before us, particularly the testimony of Dr. William Nas-setta, an internist accepted by the WCJ as an expert in the field of occupational and environmental medicine, we find the evidence amply supports the WCJ’s findings in this matter and thus, her findings are not clearly wrong.

Dr. Nassetta testified that he holds a bachelor’s degree in chemistry and a medical degree; he had completed a residency in internal medicine and a second residency in occupational and environmental medicine. Dr. Nassetta also testified that he holds a master’s degree in public health. In reviewing scientific literature regarding the particular diseases caused by exposure to hydrogen cyanide and acrylonitrile from an epidemiological standpoint, Dr. Nasset-ta opined that, based on the concentrations of the chemicals to which Mr. Jones was exposed, the most significant injury the exposure could have caused. Mr. Jones was a transient, minor, irritative-type symptoms. Therefore, considering Mr. Jones’s specific medical history, Dr. Nas-setta opined the following:

[Mr. Jones] had symptoms acutely initially that are certainly consistent with what one would expect, and he got better, I think, as was documented in the records. As you look through the records, after a couple of days to a couple of weeks, his symptoms were improving, his shortness of breath. Like, here, I have documented on May 2nd, you know, some — a few days after the event, he had no more shortness of breath and no more cough. And this is what Dr. Waguespack — he felt comfortable enough at that point in time to say, you know, follow up in a month. So that’s what I would expect in this type of thing.
The issue was going on here, as not uncommonly happens, is that ... when you — when an event like this brings you into the medical system and tests are done, other things are discovered at the same time, and that’s what happened is, he had hypertension to begin with, and now they’re paying more attention to it. He had a blood test done for the first time for his thyroid, because someone had discovered a goiter, and his Graves disease was discovered. And I can understand how in his mind he conflates these events, that I never had these things before, so they must be related now, and that’s just — you know, they are just not related, I mean, other than they happened in the same person. There were things that were going to be ultimately _J^discovered anyway but are things that are not related to the particular exposure and how he was exposed in this circumstance.

At the hearing for this matter, IMC placed into evidence the medical records and deposition testimony of the physicians who treated Mr. Jones relative to his workers’ compensation claim, as well as Dr. Nassetta’s report and company investigative reports regarding the chemical release. Considering all the evidence presented, the WCJ agreed with Dr. Nasset-ta’s opinion that the chemical exposure did not cause the lingering medical conditions of which Mr. Jones complained. The WCJ found Mr. Jones’s medical conditions were due in large part to his conditions of Graves disease, post-ablation hypothyroidism, and hypertension.

Having thoroughly reviewed the record, we find there is reasonable factual support for the WCJ’s finding that Mr. Jones failed to establish by a preponderance of the evidence that his complained-of medical conditions were caused by the chemical exposure. Accordingly, the WCJ’s determination that Mr. Jones failed to meet his burden of proving that the chemical exposure caused the lingering medical conditions from which he continues to suffer is not manifestly erroneous.

CONCLUSION

For the foregoing reasons, we affirm the judgment. All costs of this appeal are assessed to the claimant, Sidney Jones, Jr.

AFFIRMED.

      . IMC is now known as Turner Industries Group, LLC.

      . Mr. Landry also filed a workers' compensation claim regarding the incident, and his claim was consolidated with the claimant’s until the point of trial, at which time the workers’ compensation judge severed the actions and heard the two claims separately, albeit on the same date. Mr. Landry testified for the claimant at his hearing.

      . According to company records, one pound of hydrogen cyanide and one pound of acryl-onitrile were released into the air on the date of the accident, which translated into air concentration levels of between 5.5 parts per million to 30.2 parts per million.

      . Pursuant to a motion filed with the trial court, our record on appeal was supplemented with the proffer Mr. Jones offered in the hearing below. The proffer consists of a "Notice of Decision” from the Social Security Administration, Office of Disability Adjudication and Review, and medical notes from Dr. Kenneth Williams, a physician who specializes in physical medicine and rehabilitation, who examined and treated Mr. Jones in relation to his Social Security claim.

      . Moreover, even considering the evidence proffered by Mr. Jones, under the manifest error standard of review, where the parties present conflicting evidence regarding the fact to be established, the factfinder’s choice between the evidence can never be manifestly erroneous or clearly wrong. See Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993).


author: HUGHES, J.

text:
    DON BIHM EQUIPMENT CO., INC. v. LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Denton James, LLC, and Environmental Abatement Services, Inc.
    No. 2010 CA 1997.
    Court of Appeal of Louisiana, First Circuit.
    May 6, 2011.

      Charles E. Griffin, II, St. Francisville, LA, for PlaintiffiAppellee Don Bihm Equipment Co., Inc.
    David C. Voss, E. Allen Graves, Jr., David W. Carley, Baton Rouge, LA, for Defendant/Appellant JB James Construction, L.L.C. f/k/a Denton James, LLC.
    Before PARRO, GUIDRY, and HUGHES, JJ.

      .Louisiana Revised Statute 48:256.4 provides:
      Whenever the department enters into a contract for the construction, maintenance, alteration, or repair of any public works, in accordance with the provisions of this Sub-part, the undersecretary or his duly appointed designee of the department shall have recorded in the office of the recorder of mortgages, in the parish where the work has been done, a final acceptance of said work or a partial acceptance of any specified area thereof upon completion of all of the work. The final acceptance shall be executed by the secretary or his duly appointed designee within thirty days of completion of all of the work on the project. The recordation of a final acceptance in accordance with the provisions of this Section shall be effective for all purposes under this Chapter.

   HUGHES, J.

12This is an appeal from a district court judgment in favor of a subcontractor on a roadway project, awarding to it funds deposited by the state into the court’s registry. For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

In 2004 the Louisiana Department of Transportation and Development (“DOTD”) selected Denton James, LLC as contractor for State Project Numbers [ XXX-XX-XXXX ] and [ XXX-XX-XXXX ], known as the “Juban Road Interchange at 1-12” project (herein “the project”), in Livingston Parish. The contract between DOTD and the contractor was signed in November of 2004, and the contractor executed a payment bond in accordance with LSA-R.S. 48:256.3. Thereafter, the contractor entered into a contract with a subcontractor, PRC Construction Group, LLC (“PRC”), for site clearing work. The PRC subcontract prohibited PRC from subcontracting any of its work without the prior consent of the contractor. Nevertheless, without the contractor’s knowledge, PRC allegedly subcontracted some portion of the work to Environmental Abatement Services, Inc. (“EASI”), who in turn contracted with Don Bihm Equipment Co., Inc. (“Bihm”), to provide heavy equipment for the project.

In February of 2005 Bihm leased a trackhoe and a bulldozer to EASI, which were delivered to the Juban Road project site. The equipment was |-¡returned to Bihm by the end of May, 2005; however, EAST failed to pay Bihm the rental charges. Also in May of 2005, PRC’s contract was terminated by the contractor for failure to perform the work in a timely manner. According to the contractor, PRC was paid, prior to the date of termination, for all of the work it had performed on the project. The contractor maintained that it did not know about PRC’s contracts with either EASI or Bihm until after PRC had been terminated.

On July 11, 2005 Bihm filed a material-man’s lien in the Livingston Parish public records, stating that $18,433.09 was owed on the equipment lease to EASI. A demand letter was sent by Bihm’s attorney, along with a copy of the lien and attached substantiating documents, to EASI, DOTD, the contractor, and PRC, on July 26, 2005. In a suit entitled Don Bihm Equipment Co., Inc. v. Environmental Abatement Services, Inc., filed in the Nineteenth Judicial District Court under Suit Number 544,302, Bihm obtained a default judgment, in April of 2007, against EASI in the amount of $18,433.09. The default judgment was also filed in the Livingston Parish public records on April 26, 2007. Bihm has been unable to collect on the sum owed.

A final acceptance of completed work on the project was issued by DOTD on September 20, 2007, and was filed in the Livingston Parish public Rrecords on October 4, 2007, in accordance with LSA-R.S. 48:256.4. However, the amount of $10,644.93 was retained from DOTD’s final payment to the contractor, in accordance with LSA-R.S. 48:256.1, and held pending the resolution of the lien on the project.

On May 8, 2008 Bihm commenced this suit by filing its “Petition for Concursus” against DOTD, the contractor, and EASI. DOTD responded to the suit, denying liability, asserting Bihm’s alleged failure to comply with statutory requirements, and also asserting a lack of privity of contract between itself and Bihm. DOTD sought and received an order from the district court allowing it to deposit into the court’s registry the $10,644.93 in retained funds, and requiring the other parties to litigate their respective claims to those funds.

| ¿¡Following an April 14, 2010 trial of the matter, the district court rendered judgment, which was signed on June 2, 2010, awarding Bihm the sum deposited in the registry of the court, $10,644.93. The judgment further declared that the award was “deemed the full and final satisfaction for all claims pertaining to this project” with respect to the contractor, EASI, PRC, and DOTD.

The contractor has appealed this judgment, and on appeal asserts the district court erred: (1) in finding that Bihm was a “claimant” under LSA-R.S. 48:256.5; (2) in allowing Bihm’s claim when no copy of the lease of movables was delivered to the contractor, as required by LSA-R.S. 48:256.5(C); (3) in “failing to grant judgment in favor of [the contractor] for any amounts for which [the contractor] was found liable to Don Bihm;” (4) in failing to grant judgment in favor of the contractor, cancelling Bihm’s claim pursuant to LSA-R.S. 48:256.6, and for damages and attorney fees for failing to cancel the claim; (5) in admitting into evidence Bihm’s claim under LSA-R.S. 48:256.5 without proper authentication or self-authentication; and (6) in not requiring the naming of all parties required by LSA-R.S. 48:256.8 for a concursus proceeding on Bihm’s claim.

LAW AND ANALYSIS

The history of workmen’s and/or materi-almen’s liens, in the context of public works, was discussed by the supreme court in Wilkin v. Dev Con Builders, Inc., 561 So.2d 66, 70-71 (La.1990), as follows:

Louisiana has long evidenced an intent to protect those who perform work and supply materials for the construction and repair of buildings and other works. The earliest Louisiana Civil Code granted a privilege on immovables to workmen employed in constructing and repairing buildings or works. Later Codes included suppliers of materials for buildings or improvements in the class of those who were entitled to the rights, and granted them a lien and a privilege on the building | Ror improvement as well as on the lot of ground on which the building or improvement stood.
However, workmen and suppliers engaged by agencies of the state for construction and improvement of public property were not entitled to take advantage of these provisions, or of provisions of later enacted private building contract statutes [LSA-R.S. 9:4801 et seq.] because liens were not enforceable against public property. Because of the need to protect those performing labor and furnishing materials for public works, the Legislature in 1918 passed Act 224, the precursor to current public works statutes, [LSA-R.S. 38:2241 et seq.], granting rights to laborers and materialmen involved in public works. The public contract law did not grant its beneficiaries a lien on the public work itself, but gave them, in effect, a “privilege against the unexpended fund in the possession of the authorities with whom the original contract ha[d] been entered into.” Act 224 stated as its purpose the protection of “persons doing work, performing labor or furnishing material for the construction ... of public buildings .... ”
Public contract law provides that when the representative of a governing authority enters into a contract for construction of a public work, a bond must be provided. The law further establishes [in LSA-R.S. 38:2242] the means for asserting a claim:
Any person to whom money is due for doing work, performing labor, or furnishing materials or supplies for the construction ... of any public works ... may after the maturity of his claim and within forty-five days ... of notice of default of the contractor ..., file a sworn statement of the amount due him with the governing authority having the work done and record it in the office of the recorder of mortgages for the parish in which the work is done.
... The effect of these provisions is to give certain classes of persons not enjoying privity of contract with the general contractor or with the governing authority a claim nevertheless against the general contractor and his surety and in some instances a claim against the governing authority itself. The provisions also protect the public authority complying with the requirements of the statutes from expenses caused by failure of the contractor to faithfully perform the contract.

[Citations and footnotes omitted.]

Prior to the enactment of the DOTD Public Works Act, LSA-R.S. 48:256.3 et seq. (added by 1997 La. Acts, No. 1112, § 1, effective July 14, 171997), the state’s general Public Works Act, LSA-R.S. 38:2241 et seq., was applicable to DOTD contracts. See e.g. Louisiana Paving Co., Inc. v. State through the Department of Highways, 372 So.2d 245 (La.App. 1 Cir.1979). The DOTD Public Works Act was enacted to exclusively govern the contracts of DOTD. See Martin Marietta Materials of Louisiana, Inc. v. United States Fideli ty and Guaranty Company, 41,280, p. 6 (La.App. 2 Cir. 9/27/06), 940 So.2d 152, 156. Even though the provisions of the DOTD Public Works Act are nearly identical to those of LSA-R.S. 38:2241 et seq., since its enactment, the DOTD Public Works Act exclusively governs the public contracts of DOTD. See Gilchrist Construction Co., Inc. v. Terral RiverService, Inc., 2001-1617, pp. 3-5 (La.App. 3 Cir. 5/1/02), 819 So.2d 362, 365-66, unit denied, 2002-2121 (La. 11/8/02), 828 So.2d 1119.

The DOTD Public Works Act authorizes, in LSA-R.S. 48:256.8, certain claims to be litigated in a concursus proceeding. See Case Atlantic Company v. Blount Brothers Construction, Inc., 42,251, p. 2 (La.App. 2 Cir. 6/20/07), 960 So.2d 1274, 1276, writ denied, 2007-1541 (La. 10/12/07), 965 So.2d 403. The concursus proceeding authorized by LSA-R.S. 48:256.8 is required to be filed in the proper court of the parish where the public work was done and may be filed by a “claimant.” LSA-R.S. 48:256.8(A)-(B). A “claimant” means “any person to whom money is due pursuant to a contract with the owner or a contractor or subcontractor for doing work, performing labor, or furnishing materials or supplies for the construction, alteration, or repair of any public works ..., including persons to whom money is due for the lease or rental of movable property, used at the site of the immovable and leased to the contractor or subcontractor by written contract.... ” LSA-R.S. 48:256.5(A).

| SA claim asserted by a subcontractor arising out of a DOTD contract must satisfy the notice requirements of LSA-R.S. 48:256.5 to be entitled to the protections afforded under the DOTD Public Works Act. See Gilchrist Construction Co., Inc. v. Terral RiverService, Inc., 2001-1617 at pp. 4-5, 819 So.2d at 365-66. As provided in LSA-R.S. 48:256.5(B), a claimant may present his claim within forty-five days after the re-cordation of final acceptance of the work by DOTD or of notice of default of the contractor or subcontractor, by following the procedure set forth therein. However, to be entitled to assert a claim under LSA-R.S. 48:256.5(B), LSA-R.S. 48:256.5(0(1) requires a “lessor of movables” to deliver a copy of the lease to DOTD and the contractor “not more than ten days after the movables are first placed at the site of the immovable for use in the work.”

In the instant case, it was not established that the notice requirement set forth in LSA-R.S. 48:256.5(C)(1) was met by the lessor of movables, Bihm. Don Bihm testified at the trial of the matter that he did not personally deliver a copy of his company’s contract with EASI to either the contractor or DOTD. Rather, Mr. Bihm asked EASI employee Eddie Guillory to | gdeliver a copy of the contract. Bihm failed to present sufficient evidence at trial to show that the requisite delivery of the contract copy to DOTD and the contractor was accomplished within the time frame prescribed by LSA-R.S. 48:256.5(C)(1).

Moreover, Jeffrey B. James and Gerald Denley, both company managers for the contractor, testified at trial that they did not know Bihm was working on the project prior to terminating and issuing final payment to subcontractor PRC in May of 2005. Mr. James and Mr. Denley testified that if they had known about Bihm’s claim beforehand, they could have held back the disputed amount until the claim was resolved.

It is a long-standing principle of statutory interpretation that as a general rule, lien statutes are stricti juris and should thus be strictly construed. Public contract laws are to be strictly construed, such that the privileges granted are not extended beyond the statutes. Because the law grants special rights to claimants, there must be strict compliance with its provisions. United Rentals Highway Technologies, Inc. v. St. Paul Surety, 37,-265, pp. 5-6 (La.App. 2 Cir. 8/20/03), 852 So.2d 1200, 1203 (citing State through the Division of Administration v. McInnis Brothers Construction, 97-0742 (La. 10/21/97), 701 So.2d 937, 944).

Because Bihm failed to meet the notice requirement of LSA-R.S. 48:256.5(C)(1), which by its plain language was a prerequisite to a DOTD public works claim for a lessor of movables, Bihm failed to establish that it was entitled to the relief sought. Thus, the district court erred in rendering judgment in Bihm’s favor.

|inHaving decided the issue on this basis, we find it unnecessary to address the other assignments of error seeking to overturn the district court judgment on the merits. However, the appellant/contractor further contends it should have been awarded damages and attorney fees under LSA-R.S. 48:256.6 for Bihm’s refusal to withdraw its lien and/or claim. Section 256.6 provides, in pertinent part:

A. (1) If a statement of claim or privilege is improperly filed or if the claim or privilege preserved by the filing of a statement of claim or privilege is extinguished, the public entity, contractor, or subcontractor, or other interested person may require the person who has filed a statement of claim or privilege to give a written authorization directing the recorder of mortgages to cancel the statement of claim or privilege from his records.
(2) The authorization shall be given within ten days after a written request for authorization has been received by the person filing the statement of claim or privilege from a person entitled to demand it.
(3) One who, without reasonable cause, fails to deliver written authorization to cancel a statement of claim or privilege as required by Subsection A of this Section shall be liable for damages suffered by the department, contractor, subcontractor, or other interested person requesting the authorization as a consequence of the failure and for reasonable attorney fees incurred in causing the statement to be canceled.
(4) A person who has properly requested written authorization for cancellation shall have an action against the person required to deliver the authorization to obtain a judgment declaring the claim or privilege extinguished and directing the recorder of mortgages to cancel the statement of claim or privilege if the person required to give the authorization fails or refuses to do so within the time required by Subsection A of this Section. The plaintiff may also seek recovery of damages and attorney fees to which he may be entitled under this Section.

After a careful review of the record and upon the showing made, we are unable to conclude that Bihm was without good cause in pursuing its claim for payment, even though it ultimately proved unsuccessful. Therefore, we do not find, under the particular facts and circumstances of this case, that LSA-R.S. 48:256.6 damages and attorney fees are warranted. See United Rentals Highway Technologies, Inc. v. St. Paul Surety, 37,265 at pp. 9-10, 852 So.2d at 1205.

CONCLUSION

For the reasons assigned herein, the judgment of the district court is hereby reversed and the matter is remanded for further proceedings in accordance with the foregoing. All costs of this appeal are to be borne by Don Bihm Equipment Co., Inc.

REVERSED AND REMANDED.

      . Although "Denton James, LLC” was named as a defendant in this suit, during the course of the litigation the company became known as "JB James Construction, LLC,” and the motion for appeal filed in the district court was in the name of "JB James Construction, LLC F/K/A [formerly known as] Denton-James, LLC.” We refer to this party herein as "the contractor.”

      . Although the record reflects that additional correspondence passed between Bihm’s counsel and the contractor's attorney in March and July of 2007, with at least one letter being forwarded to DOTD, this correspondence is not relevant to the issues addressed herein and is therefore not discussed.

      . Louisiana Revised Statute 48:256.1(A) provides:
      (1) The Department of Transportation and Development shall insert a clause in the specifications of all contracts let and awarded as a result of public lettings for the construction, improvement, maintenance, or repair of any road, highway, bridge, or appurtenance thereto or any other Department of Transportation and Development facility, providing for the retainage of amounts constituting a percentage of the gross value of the completed work as may be provided for in the contract. Retained amounts for projects which cost less than five hundred thousand dollars shall not exceed ten percent of the gross value of the completed work. Retained amounts for projects which cost five hundred thousand dollars or more shall not exceed five percent of the gross value of the completed work.
      (2) Final payment of the retained amounts to the contractor under the contract to which the retained amount relates shall be made after certification by the secretary or his duly appointed designee that the work has been satisfactorily completed and is accepted in accordance with the contract, plans, and specifications, and forty-five days have lapsed from filing the notice of final acceptance with the office of the recorder of mortgages in the parish where the work has been done. Any interest earned on the retained amounts shall be credited to the Transportation Trust Fund.

      . Paragraphs (B) and (C) of LSA-R.S. 48:256.5 provide, in full, as follows:
      B. Any claimant shall, after the maturity of his claim and within forty-five days after the recordation of final acceptance of the work by the department or of notice of default of the contractor or subcontractor, file a copy of sworn statement of the amount due him with the department having the work done and record the original sworn statement of the amount due him in the office of the recorder of mortgages for the parish in which the work is done.
      C. (1) To be entitled to assert the claim given by Subsection B of this Section, the lessor of movables shall deliver a copy of the lease to the department and the contractor, not more than ten days after the movables are first placed at the site of the immovable for use in the work.
      (2) The claim or privilege granted the lessor of the movables by Subsection B of this Section is limited to and secures only the part of the rentals accruing during the time the movable is located at the site of the immovable for use in a work. A movable shall be deemed not located at the site of the immovable for use in a work after one or more of the following have occurred:
      (a) The work is completed or abandoned.
      (b) The notice of final acceptance of the work is filed.
      (c) The lessee has abandoned the movable, or use of the movable in a work is completed or no longer necessary, and the owner or contractor gives written notice to the lessor of abandonment or completion of use.

      . We note that Mr. James further testified that the contractor’s contract with subcontractor PRC specifically stated that PRC could not subcontract out its work without the contractor’s consent, and that the contractor would not have consented to such subcontracting.


author: WALTER J. ROTHSCHILD, Judge.

text:
    Lewis J. TUSA v. CITY OF KENNER POLICE DEPARTMENT and Creative Risk Controls, Inc.
    No. 10-CA-791.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 10, 2011.

      Joseph G. Albe, Attorney at Law, New Orleans, LA, for Plaintiff/Appellee.
    Mark E. Hanna, Crystal E. Domreis, Attorneys at Law, New Orleans, LA, for Defendants/Appellees.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD and FREDERICKA HOMBERG WICKER.
   WALTER J. ROTHSCHILD, Judge.

|2In this workers’ compensation case, the claimant appeals from a ruling dismissing his claim for disability benefits. Claimant contends he is also entitled to penalties and attorney’s fees. For the reasons stated herein, we affirm the judgment.

Lewis J. Tusa, a police officer with the Kenner Police Department, filed this disputed claim for compensation seeking supplemental earnings benefits, penalties and attorney’s fees for a work-related injury to his knee which occurred initially on September 21, 2006 and was re-injured on August 29, 2008. The Kenner Police Department answered the claim, and denied that claimant had sustained an injury resulting in loss of earning capacity. The matter was tried on October 19, 2009.

At trial, it was stipulated that claimant sustained a work-related injury to his left knee on September 21, 2006. The parties also stipulated that claimant discontinued employment as a police officer with the police department on August 29, 2008. As stated by counsel in opening statements, the main issue presented at trial was whether claimant discontinued employment because of the work-related injury or because he reached age of retirement.

Lewis Tusa testified at trial that he was employed by the Kenner Police Department in 2006 as a Sergeant in the patrol division and earned an annual salary of |s$62,000. He stated that most of his duties included patrol work on the streets and it was not a sedentary position. On September 21, 2006, Mr. Tusa was called to investigate an incident involving a violent patient in a hospital emergency room. While attempting to apprehend the patient, Mr. Tusa fell to the floor and injured his left knee and shoulder.

Following this accident, Mr. Tusa went to the emergency room and was given pain medication and a recommendation to see an orthopedic surgeon. Mr. Tusa saw Dr. Thomas Lyons a few weeks after the accident and was diagnosed with a tear in the meniscus in his left knee. Mr. Tusa underwent surgery to correct this problem in January of 2007. During this time, Mr. Tusa continued to work but experienced pain and swelling in his knee. After the surgery, Mr. Tusa was on limited duty and received workers’ compensation benefits. Mr. Tusa completed 12 weeks of physical therapy during this time. He returned to full duty with some restrictions in March of 2007, but continued to have pain and difficulty performing job-related duties. In March of 2008, Mr. Tusa had difficulty running to help an officer who requested assistance.

Mr. Tusa testified that during the summer of 2008, the restrictions imposed on him due to his knee condition prevented him from doing certain tasks of his job, including running, jumping, climbing stairs. Mr. Tusa testified that he had 35 years of service with the police department and was entitled to a pension for his service. He said he decided to accept retirement on August 29, 2008 because he could no longer perform the job. He spoke to the police chief, who offered to given him a job after retirement as a process server. He started this job two weeks after his retirement as a police officer, but had difficulty with the prolonged and extended driving times necessary in that position. Mr. Tusa resigned from this job in March of 2009 and began to search for other employment. He also filed this disputed claim for compensation at this time.

In addition to the testimony of the claimant, the record also contains the testimony of Tommy Powell, the Human Resources Director for the Kenner Police Department, as well as the testimony of the Chief of Police, Chief Steve Caraway. Mr. Powell testified that claimant’s personnel file indicated that claimant took sick leave due to knee pain during the summer of 2008, but the record showed that no medical evidence was ^submitted to the police department that Sgt. Tusa’s work duties were restricted or that he should discontinue working as a police officer.

Chief Caraway testified that he had known claimant for almost 30 years, and that he met with claimant in June of 2008 when claimant told him he wished to retire from the police department. Chief Caraway testified that he offered to assist Sgt. Tusa obtain a position as a civilian process server after his retirement. Chief Caraway testified that Sgt. Tusa did not indicate that he was retiring due to physical limitations, and that if he had, he would not have offered him the more strenuous position as a process server.

The record also contains claimant’s medical records as well as the deposition testimony of his treating physician, Dr. Thomas Lyons, an orthopedic surgeon. The medical records indicate that claimant presented to the emergency room for the work-related injury on September 23, 2006 and that following an MRI, Dr. Lyons performed arthroscopic surgery on claimant’s left knee on January 26, 2007. Claimant was released initially to sedentary employment, and then to full active duty with no restrictions on March 15, 2007. In his deposition testimony, Dr. Lyons testified that claimant reached maximum medical improvement approximately four months after the surgery.

The record indicates that Sgt. Tusa continued to work as a police officer for over one year after he reached maximum medical improvement. On July 14, 2008, Sgt. Tusa presented correspondence to the Kenner Police Chief, giving formal notice of retirement from the Kenner Police Department, effective August 29, 2008. There was no indication in this correspondence that Sgt. Tusa was retiring due to an inability to complete his job requirements. The record also shows that Sgt. Tusa turned in all of his police gear on July 23, 2008, and he could no longer work as a police officer without his gear, although Chief Caraway testified that Sgt. Tusa’s position was still available to him at this time.

The record also contains several statements dated March 15, 2007 through July 21, 2008 from claimant’s attending physician indicating that he was released to return to work during this time period without restrictions. The record also shows that from July 14, 2008 — August 29, 2008, claimant applied for medical sick leave on numerous occasions, some of which were due to pain in his left knee. Further, the record contains a | r,letter from Dr. Lyons dated March 24, 2009 that his work-related knee condition contributed to his need to retire from his employment.

Following trial, the workers’ compensation judge took the matter under advisement. On July 9, 2010, the workers’ compensation judge rendered judgment with reasons finding no merit in claimant’s demand for benefits, and dismissed the claim with prejudice.

By the present appeal, claimant contends that the workers’ compensation judge erred when he determined that claimant was not entitled to supplemental earnings benefits following his work-related accident on September 21, 2006 when there was evidence presented that claimant was unable to earn at least 90% of his pre-accident wages. For the reasons stated herein, we find no merit in this argument.

Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Forbes v. Metropolitan Developmental Center, 09-901 (La.App. 5 Cir. 8/9/10), 35 So.3d 377, 382, citing Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556. Further, this Court stated that the determinations by the workers’ compensation judge as to whether the claimant’s testimony is credible and whether the claimant has discharged his burden of proof are factual determinations and will not be disturbed upon review in the absence of manifest error or unless clearly wrong. Id., citing Bruno v. Harbert International, Inc., 593 So.2d 357, 361 (La.1992).

In order to prove entitlement to supplemental earnings benefits, the claimant must establish that the accident was work-related, that the accident caused injury, and that the injury rendered him incapable of earning 90% of his pre-injury wages. La. R.S. 23:1221(A); McCray v. Intralox, Inc., 07-1036 (La.App. 5 Cir. 5/28/08), 987 So.2d 267. The claimant bears the burden of establishing this causal connection by a preponderance of the evidence. Id., citing Quinones v. U.S. Fidelity and Guar. Co., 93-1648 (La.1/14/94), 630 So.2d 1303, 1306-07.

In its reasons for judgment, the workers’ compensation judge stated:

IfiThe Court listened attentively to the testimony of the witnesses and observed their demeanor. It has considered the entire record in this matter: the pleadings, the testimony of the witnesses, both live and by deposition, the trial exhibits and the stipulations, arguments and memorandums of counsel.
From all of the above the Court finds that other witnesses and other evidence have refuted or seriously compromised Claimant’s version of events. And the Court finds that Claimant was not entirely credible. Therefore, the Court concludes that the disputed workers’ compensation claim of Lewis J. Tusa has no merit, and should be dismissed with prejudice.
* * *
Despite the best efforts of Sgt. Tusa and his counsel, there simply is no evidence that Sgt. Tusa was disabled at the time of his retirement, that he had to retire because of his physical disability, that his doctor advised him to retire because of his 2006 knee injury, or that he had discussed his alleged disability with the Chief before retiring.

A review of the record indicates there is a reasonable factual basis in the record for these findings. Although there was no dispute at trial that Sgt. Tusa suffered a work-related accident on September 21, 2006 and sustained injury as a result, the record fails to support claimant’s argument that Sgt. Tusa was disabled as a result of this injury. After claimant’s injury and resultant surgery, claimant was released to full active duty work with no restrictions, which he performed for over 15 months.

The record in this case shows that Sgt. Tusa voluntarily retired from his employment effective August 29, 2008. When Sgt. Tusa indicated his intent to resign from employment on July 14, 2008 in correspondence to Chief Caraway, there was no indication that he was resigning due to disability. Chief Caraway testified that in a meeting with Sgt. Tusa prior to his resignation, Sgt. Tusa did not claim that disability was the reason for discontinuing his employment. Rather, the record supports a finding that Sgt. Tusa retired based on over 35 years of service with the police department and in fact, the record shows a retirement party was held by Police Chief in his honor on August 29, 2008.

Further, prior to his 2008 resignation, there was no indication that claimant’s attending physician recommended claimant discontinue his employment. Although Dr. Lyons eventually indicated in a letter that claimant’s work-related injury contributed to claimant’s retirement, this letter was prepared approximately 9 months after the effective date of retirement.

17Claimant testified at trial that he retired from his employment because he was unable to complete the duties of his job, and that the department was aware he was retiring because of his “bum knee.” However, the workers’ compensation judge failed to find this testimony to be credible, and we find no basis to disturb this factual finding. The decision of the workers’ compensation judge to credit the testimony of Chief Caraway that he would not have offered another more strenuous position to Sgt. Tusa if he knew he was disabled is reasonable.

Accordingly, we find no manifest error in the factual findings of the workers’ compensation judge that claimant failed to prove his work-related accident caused disability which rendered claimant incapable of performing his duties. We find the worker’s compensation judge correctly denied Sgt. Tusa’s claim for disability benefits and for penalties and attorney’s fees. For the reasons assigned herein, the judgment is hereby affirmed.

AFFIRMED

      . Although claimant urges this Court to conduct a de novo review of the record, there has been no showing of legal error by the workers’ compensation judge which would authorize this standard of review.


author: SAUNDERS, Judge.

text:
    Wayne DESOTO and Julia Desoto v. Debra BEATY, et al.
    No. 10-1421.
    Court of Appeal of Louisiana, Third Circuit.
    May 11, 2011.

      Michael Thomas Johnson, Johnson & Siebeneicher, Alexandria, LA, for Defendant/Appellee State Farm Mutual Auto Ins. Co.
    Victoria R. Murry, Louisiana Dept, of Justice, Alexandria, LA, for Defendant/Appellant State of LA, Off. of Risk Mgmt., State Self Ins. Fund.
    Brian M. Caubarreaux, Caubarreaux & Associates, Marksville, LA, for Plaintiffs/Appellees Wayne Desoto and Julia Desoto.
    Lisa Ann Easterling, Kean Miller, New Orleans, LA, for Defendants/Appellees Old American County Mutual Firelnsurance Company and Debra Beaty.
    Bonita K. Preuett-Armour, Armour Law Firm, Alexandria, LA, for Defendant/Appellee Golden Eagle Courier, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JOHN D. SAUNDERS, Judges.
   SAUNDERS, Judge.

11 This is a case where a state employee was in a two-car automobile accident while in the course and scope of his employment. The state employee and his wife filed suit against the driver of the other vehicle in the automobile accident to recover for their damages. The State of Louisiana filed an intervention seeking reimbursement for the workers’ compensation benefits paid to its employee.

The state employee and his wife then filed suit against the State, through its Self-Insurance Fund, for uninsured/under-insured motorist (UM) coverage based on the State’s failure to technically comply with La.R.S. 22:1295(3). The parties filed cross-motions for summary judgment, then the state employee and his wife filed a petition for declaratory judgment seeking a declaration that the State’s Self-Insurance Fund certificate provides him and his wife with UM coverage equal to the State’s $5,000,000.00 self-insured liability retention limits.

The trial court denied the State’s motion for summary judgment and granted the state employee and his wife their request for declaratory judgment. The State appeals. We reverse and render.

FACTS AND PROCEDURAL HISTORY:

On September 8, 2007, Wayne Desoto was involved in an automobile accident with Debra Beaty. Mr. Desoto sustained personal injuries requiring medical treatment including multiple surgeries.

At the time of the accident, Mr. Desoto was in the course and scope of his employment with the State of Louisiana, Department of Wildlife and Fisheries. Wayne and Julia Desoto filed a petition for damages against Beaty and other party defendants. A petition of intervention was filed on behalf of the State of Louisiana, Office of Risk Management, for reimbursement of workers’ compensation medical 12and indemnity benefits paid to Wayne Desoto as a result of the automobile accident.

On August 6, 2008, an amended petition for damages was filed on behalf of the Desotos. In that amended petition, the Desotos named the State of Louisiana, Office of Risk Management, Self-Insurance Fund as the UM insurance provider for the State of Louisiana and Mr. Desoto.

Thereafter, a motion for summary judgment was filed on behalf of the Desotos asserting that there was no genuine issue of material fact that the State’s certificate of self-insurance provides $5,000,000.00 of single limit liability coverage as $5,000,000.00 UM coverage available to the Desotos from the State’s Self-Insurance Fund due to the fact that the UM motorist rejection form attached to the Self-Insurance Fund certificate was not in technical compliance with La.R.S. 22:1295(3). The deficiency alleged is that the rejection form signed by the State Risk Director contained an “X” in the blank rather than initials indicating rejection of UM coverage.

The State filed a cross-motion for summary judgment asserting that there was no genuine issue of material fact regarding the Desotos’ inability to recover from the State’s Self-Insurance Fund per La.R.S. 39:1538(4) and that Wayne Desoto’s sole remedy against the State, his employer, is through workers’ compensation. The motion further asserted that Wayne Desoto is excluded from coverage by the State’s Self-Insurance certificate, and that the State is not subject to the provisions of Title 22 of the Revised Statutes and thus not required to provide UM coverage, nor can it be deemed as a matter of law to provide such coverage absent a formally correct waiver.

Subsequent to the filing of the State’s motion for summary judgment, the Deso-tos filed a petition for declaratory judgment seeking a ruling from the trial court Isthat the State’s Self-Insurance Fund certificate provides UM coverage equal to the State’s $5,000,000.00 self-insured liability retention limits. A hearing on the State’s motion for summary judgment and the Desotos’ petition for declaratory judgment was held on August 27, 2010. A formal judgment denying the State’s motion for summary judgment and granting the De-sotos’ a declaratory judgment that the State’s Self-Insurance Fund certificate provides UM coverage equal to the State’s $5,000,000.00 self-insured liability retention limits was signed on October 4, 2010. The State has appealed alleging four assignments of error.

ASSIGNMENT OF ERRORS:

1. The trial court erred in failing to rule that the Desotos do not possess a legal cause of action against the State of Louisiana Self-Insurance Fund, as a matter of law, despite the clear and unambiguous provisions of La.R.S. 39:1538(4).
2. The trial court erred in failing to rule that, pursuant to La.R.S. 23:1032 and La.R.S. 23:1034, Wayne Desoto’s exclusive right of recovery against the State of Louisiana in this case is workers’ compensation benefits, because he was injured in the course and scope of his employment with the State Department of Wildlife and Fisheries.
3. The trial court erred in ruling that Wayne Desoto and his claim for damages are excluded from coverage under the terms of the Self-Insurance certificate despite the clear and unambiguous exclusions contained in the language of the terms of the certificate itself and interpreting jurisprudence.
4. The trial court erred in failing to find that the State of Louisiana Self-Insurance Certificate is excluded from the definition of an insurance contract by La.R.S. 22:46(9)(a), that the Fund constitutes Self-Insurance and, as such, the State is not bound to provide uninsured/underinsured motorist coverage absent a formally correct waiver pursuant to La.R.S. 22:1295(3).

ASSIGNMENT OF ERROR NUMBER ONE:

The State asserts in its first assignment of error that the trial court erred in |4failing to rule that the Desotos do not possess a legal cause of action against the State’s Self-Insurance Fund, as a matter of law, despite the clear and unambiguous provisions of La.R.S. 39:1538(4). We agree.

The State’s assignment of error alleges an error of law by the trial court in failing to correctly consider La.R.S. 39:1538(4). Such allegations of errors of law are subject to a de novo review to determine whether the trial court was legally correct. Guillory v. Allied Waste Industries, Inc., 10-159 (La.App. 3 Cir. 10/6/10), 47 So.3d 23.

Louisiana Revised Statutes 39:1538(4) states:

(4) In actions brought pursuant to this Section, process shall be served upon the head of the department concerned, the office of risk management, and the attorney general, as well as any others required by [La.]R.S. 13:5107. However, there shall be no direct action against the Self-Insurance Fund and claimants, with or without a final judgment recognizing their claims, shall have no enforceable right to have such claims satisfied or paid from the Self-Insurance Fund.

The language in La.R.S. 39:1538(4) is clear. The Desotos have no cause of action against the State’s Self-Insurance Fund by the clearly expressed, unequivocal provision of La.R.S. 39:1538(4).

Accordingly, the trial court committed legal error in its judgment by finding that the State’s Self-Insurance Fund certificate provides UM coverage equal to the State’s $5,000,000.00 self insured liability retention limits to Wayne Desoto at the time of his accident. As such, we reverse the trial court’s grant of the Desotos’ declaratory judgment and render judgment granting the State’s motion for summary judgment. The Desotos claims they brought against the State’s Self-Insurance Fund Rare dismissed with prejudice. These findings pretermit all other assignments of errors in this proceeding. All costs of this proceeding are taxed to the Desotos.

REVERSED AND RENDERED.


author: COOKS, Judge.

text:
    STATE of Louisiana v. Ronnie PRATHER.
    No. 10-1284.
    Court of Appeal of Louisiana, Third Circuit.
    May 11, 2011.
    Dmitrc I. Burnes, Alexandria, LA, for Defendant/Appellant Ronnie Prather.
    Miche’ Moreau, Assistant District Attorney, Parish of Avoyelles, Marksville, LA, for Appellee State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS and JOHN D. SAUNDERS, Judges.
   COOKS, Judge.

| T Defendant, Ronnie Prather, was charged with Felony Carnal Knowledge of a Juvenile, under La.R.S. 14:80, and with Indecent Behavior with a Juvenile, under La.R.S. 14:81. Pursuant to a plea bargain, Defendant pled guilty to one count of Felony Carnal Knowledge of a Juvenile and the charge of Indecent Behavior with a Juvenile was nolle prossed. During the plea negotiations, a sentence could not be agreed to by the parties, and the sentence was left up to the trial court.

At sentencing, the trial judge ordered Defendant to serve five years in the Louisiana Department of Corrections, with credit for time served. Defendant filed a motion to reconsider sentence, which was subsequently heard and denied by the trial court. Defendant appeals his sentence, asserting the following assignments of error:

1. The district court erred by basing Defendant’s sentence upon acts other than to which he pled;
2. The district court erred by denying Defendant’s Amended Motion to Reconsider Sentence.

ANALYSIS

Noting that the two assignments of error overlap, Defendant argues both together. The primary argument espoused by Defendant is that he confessed to and pled guilty to one act, and believed his sentencing would be based only upon that one act. However, Defendant argues the trial court based his sentence upon multiple acts. At the sentencing hearing, the trial court stated, in pertinent part, the basis for imposition of sentence:

I was told that there was one incident and one incident only. That proved to be far from the truth. I ordered a pre-sentence investigation report. The reason I did so is because Carnal Knowledge of Juvenile in the law generally on the first offense, is a probation sentence. Because what we generally consider carnal knowledge is you have a high school |2girl with a boyfriend that’s more than four years older and they’re having consensual sex.... In this case, it’s not a girl and boy, it’s a man and a boy....
And I learned it was not one act, I learned for three years there were multiple acts, many, many acts even at times ... the evidence in this file of the district attorney’s office, the strong, strong overwhelming evidence indicates that this went on multiple times, even when there were times where you wouldn’t feed the victim unless he had sex with you ... one time you hit him because he refused to have sex with you
Looking at the aggravating factors ... your conduct during the commission of the crime manifested deliberate cruelty to the victim because of his young and tender age ... you used your position or status as an older boss man, the employer to facilitate the commission of the crime ... threats were made to the victim ... and this offense resulted in a significant permanent injury to the victim and his family.
... I do find that there is an undue risk that during any period of a suspended sentence or probation that you would commit another crime.

In his Motion to Reconsider Sentence, Defendant made the same argument he now makes on appeal, i.e., that he deserved probation, or at a minimum, a lesser sentence, because the trial court considered multiple acts even though he only pled guilty and confessed to one act. After hearing testimony from Defendant and the attorney who represented him at the plea and sentencing, the trial court denied the Motion to Reconsider Sentence. The trial court gave the following oral reasons for his ruling:

... if I were to grant that, that would totally disregard the provisions of Article 894.1 of the Code of Criminal Procedure and totally disregard the purpose behind any pre-sentence investigation report and simply should say, alright Mr. Prater [sic] you had consensual sex one time with somebody and you have no criminal record, so I’m going to slap you on the wrist, give you probation and go about your business, but that’s not how our law works and I was quite explicit in speaking with Mr. Prather, to members of his family who some of which I know well and it certainly displeased them when I sentenced Mr. Prather as I did. I worked extremely hard studying this case from one end to the other to make sure that what happened was what I thought was just, considering what Mr. Prather was also facing had these matters proceeded to trial and what could have happened versus what he ended up receiving. Everybody was extremely up front with Mr. Prather ... at least I was ... up front with Mr. Prather and in fact telling him that I have never as trial judge in a blind plea sentenced a defendant to more time or worse | ..¡conditions that what was offered by the state and I was very explicit in my reasons for ruling that I could have done so in this case, but did not because I told him I wasn’t going to exceed what the state offered and made comment in my reasons that this is one time that I thought the DA’s office really had it right, that the five year sentence that they suggested was a fair end to the multiple charges and multiple claims and what could have been multiple trials and multiple psychological trauma to both Mr. Prather and to the victim and to both of the families and the additional cost to the state and to the defense and that this was absolutely the right thing to do and if I would not ... if I would have sentenced him as he thought, he says I was going to sentencing [sic] him and I’m not saying Mr. Prather’s lying about his belief, his belief ... I believe he thought in his own mind, hey, I did one thing and that’s all I’m admitting to and that’s all I’m going to get punished for, but that would totally disregard the statute, article 894.1 of the Code of Criminal Procedure and I can’t do that. I can’t sentence based on that and I certainly did not tell Mr. Prather that I would disregard the law in imposing sentence.... In any regard, the motion to reconsider is denied.

Defendant revisits the same argument on appeal. We note no statutory or jurisprudential authority is cited in support of his argument. The State disputes that Defendant was ever told he would be sentenced based on only one act. However, Defendant was charged and pled guilty to only one count of felony carnal knowledge of a juvenile.

After a review of the record, we find, although it could be inferred that the trial court based Defendants sentence on more than one act, we find any such error is harmless. A five-year sentence for one act of felony carnal knowledge is appropriate considering the facts and circumstances of this case.

“Whoever commits the crime of felony carnal knowledge of a juvenile shall be fined not more that $5,000.00, or imprisoned, with or without hard labor, for not more than ten years, or both ...” La.R.S. 14:80. Thus, the sentence imposed was a mid-range sentence. The trial court noted that this was not the type of violation of felony carnal knowledge of a juvenile that would support only probation. The trial court also listed several aggravating factors: (1) Defendant’s conduct during the 1 commission of the offense constituted deliberate cruelty to the victim; (2) Defendant knew or should have known the victim was particularly vulnerable and/or incapable of resistance due to the significant difference in age and the fact that Defendant was his boss; (3) Defendant used actual threats or actual violence in the commission of the crime; (4) Defendant knowingly created a risk of death or great bodily harm; and (5) the offense resulted in significant permanent injury to the victim and/or his family. The trial court also noted there were two mitigating factors: (1) Defendant was a first felony offender; and (2) his imprisonment would entail excessive hardship to himself or his dependents.

We also note the following cases which support the five year sentence imposed by the trial court. In State v. Fuller, 42,971 (La.App. 2 Cir. 2/13/08), 975 So.2d 812, the defendant pled guilty to one count of felony carnal knowledge of a juvenile. Even though the defendant was a first felony offender, the trial court sentenced him to eight years at hard labor. The appellate court affirmed. In State v. Wyant, 42,338 (La.App. 2 Cir. 8/15/07), 962 So.2d 1165, the defendant, who was 25, pled guilty to one count of felony carnal knowledge of a juvenile, after having alcohol induced “consensual” intercourse with a 12 year-old. The defendant was sentenced to the maximum term of ten years, with two years suspended, and five years of active supervised probation thereafter. The defendant argued he had no criminal history, and had two small children to support. The appellate court affirmed the sentence. In State v. Watson, 41,094 (La.App. 2 Cir. 6/28/06), 935 So.2d 333, the defendant pled guilty to one count of felony carnal knowledge of a juvenile. The defendant was a counselor in a mental health facility of a correctional facility and admitted to having sex with a 16 year-old in her office. She was sentenced to four years at hard labor. In imposing the sentence, the trial court found the defendant needed correctional treatment for the | ¿purposes of both punishment and deterrence, despite the fact it was impressed with the defendant’s lack of criminal history and academic credentials. The appellate court affirmed the sentence.

Considering the above cases, and the noted aggravating factors listed by the trial court in the present case, we find the sentence of five years at hard labor was appropriate to the one count of felony carnal knowledge of a juvenile committed by Defendant.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. Our review has detected no errors patent, but we do find the sentencing minutes and the Commitment require correction.

The sentencing minutes and the Commitment reflect that Defendant’s sentence was imposed without benefit of probation, parole or suspension of sentence. The sentencing transcript indicates the court did not restrict these benefits when imposing Defendant’s sentence. When the transcript and court minutes conflict, the transcript prevails. State v. Colton, 07-252 (La.App. 3 Cir. 10/31/07), 968 So.2d 1239, unit denied, 07-2296 (La.4/25/08), 978 So.2d 364. Additionally, we note La. R.S. 14:80 does not require a sentence imposed for felony carnal knowledge of a juvenile be served without benefit of probation, parole or suspension of sentence.

We order the trial court to correct the sentencing minutes and Commitment to delete the provision stating that Defendant’s sentence is to be served without benefit of probation, parole or suspension of sentence. Additionally, the Commitment must be corrected to accurately reflect that Defendant was convicted of felony carnal knowledge of a juvenile rather than forgery.

1 «DECREE

For the foregoing reasons, Defendant’s sentence is affirmed. The trial court is ordered to correct the sentencing minutes and Commitment to delete the provision stating that Defendant’s sentence is to be served without benefit of probation, parole or suspension of sentence. We also order the Commitment to be corrected to accurately reflect that Defendant was convicted of felony carnal knowledge of a juvenile rather than forgery.

AFFIRMED.