author: PAINTER, Judge.

text:
    K.P. v. T.F.P.
    No. 09-146.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 2009.
    Timmy J. Fontenot, Mamou, LA, for Defendant-Appellant, T.F.P.
    Jeremy D. Dean, Opelousas, LA, for Plaintiff-Appellee, K.P.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| ]T.F.P. appeals a judgment of the trial court denying her rule for change of custody and for child support. Finding no error in the trial court’s ruling, we affirm.

FACTS AND PROCEDURAL HISTORY

K.P. and T.F.P. were married in 2002. They had one child, P.A.P., in May 2003. On April 28, 2004, K.P. filed a petition for divorce. The parties entered a consent judgment whereby they agreed to share joint custody of P.A.P., with reasonable visitation to be shared by the parties. A judgment of divorce was entered on March 23, 2005.

After the divorce, T.F.P. remarried M.B. and had two more children. It is alleged that T.F.P. separated from M.B. and for four to six months prior to September 25, 2007, was living with B.F. On September 25, 2007, K.P. filed a Rule for Change of Custody and Visitation and Motion and Order for Ex Parte Custody and Visitation alleging in pertinent part that:

4.
Within the past week, the said [B.F.] has physically abused the minor daughter of the defendant. Based upon information and belief, [B.F.] grabbed two-and-a-half (2.5) year old daughter by the hair (a ponytail) and pulled her with such force so as to separate the scalp from the skull resulting in severe injuries to the minor child of the defendant. Defendant’s minor daughter was hospitalized for several days due to this injury.
5.
The said [B.F.] has numerous criminal charges and convictions involving acts and threats of physical violence. At the present time, an investigation is pending regarding the instant physical abuse to defendant’s minor child. Further, there is a pending OCS investigation in St. Landry Parish.
6.
Despite [B.F.]’s violent history and severe physical abuse of her minor daughter, the defendant, T.F.P., continues to allow B.F. to live |2and reside in her home. Further, and despite the violent past and reputation of [B.F.] the defendant leaves her children, including the minor child of the parties, in the care of [B.F.] for extended periods of time with no other supervision.
7.
An Ex Parte Order of Custody and Visitation pursuant to La. C.C.P. Article 3945 is needed during this interim period. This Ex Parte Order should grant plaintiff in rule, [K.P.] immediate temporary physical custody of the minor child, [P.A.P.], the resolution of the instant rule for change of custody and visitation. Mover believes that immediate and irreparable injury will result to the minor child if he is in the custody of the defendant, [T.F.PJ. Mover’s fears are supported the past history of physical abuse of [B.F.], in particular the physical attack on two and a half year old daughter and defendant’s acquiescence, both tacit and explicit, in continuing to allow [B.F.] to not only live in her residence but to care for/babysit her minor children and the minor child of the parties.

The trial court granted an interim order giving K.P. immediate temporary custody. A hearing was held and judgment rendered granting the parties joint custody with K.P. designated as the domiciliary and custodial parent. T.F.P. was allowed visitation supervised by her mother every other weekend. K.P. moved for and was granted child support to be paid by T.F.P.

In July 2008, T.F.P. filed a Rule for Change of Custody and for Child Support. In her rule she alleged that custody of her daughter had been returned to her by the State. She asked that she be awarded shared custody of P.A.P. and for termination of the child support to K.P. and payment of child support by K.P. to her.

After a hearing the trial court denied the change of custody but increased the amount of supervised visitation by T.F.P.T.F.P. appeals.

DISCUSSION

Application of Bergeron

T.F.P. first asserts' that the trial court erred in applying the standard for change of custody set out in Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). T.F.P. argues that Bergeron does not apply because she was applying for a change in [¡¡visitation rather than a change in custody. However, her rule was one for a change in custody, although the judgment increases her visitation, the trial court correctly applied the Bergeron standard in denying the change of custody moved for by T. F.P. Change of Circumstance

T.F.P. asserts that the trial court erred in finding that there had not been a change of circumstances such as to allow a change in custody.

In Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La.1986) (citations omitted), the supreme court held that:

When a trial court has made a considered decree of permanent custody the party seeking a change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child.

The trial court in the case sub judice found that the burden imposed by Berger-on was not met by the mover. After reviewing the evidence of record, we agree that no evidence was adduced to show that the continuation of physical custody with K.P. was deleterious to the child. Further, she failed to show sufficient advantages to P.A.P. to outweigh the possibility of harm noted by the trial court:

with the heavy burden of Bergeron in mind. In view of the fact that while the State may have returned custody to [T.F.P.], the State’s determination does not control mine. That’s number one. Number two, by her own admission with her testimony the child was returned after parenting classes but the issue of how that child received those injuries is still unresolved. My recollection of the testimony back then was that there were two people in the house the evening before this child woke up the next morning with those injuries. One of two people; I still don’t know which one it is....
.... I’m still going to require supervised visitation until somebody gives me some evidence that investigation is concluded and if you can’t find who did something to the child, if I’m still concerned that [B.F.], for whatever reason, still felt the need to come around and fire a shot, |4ostensibly that’s what the testimony seemed to indicate, that concerns me with the welfare of the child.
When we have something to indicate that there’s a trial or something of that nature — what I’m concerned about still, and not so much concerned, do not believe I’ve received evidence that [T.F.P.] injured her child. Just as important to me though is that she brought into her children’s lives an individual that may well have caused the damage that I saw, and it was severe for a two year old. That concerns me greatly. And there is still, albeit not by her invitation, because of her association with the illustrious [B.F.], we still got a danger situation that has resulted from that initial relationship. That concerns me. That’s where we are now. So when you have information or when we see later down the road that there’s no danger from [B.F.], I may look at things differently.

After reviewing the record, we conclude that the trial court correctly found that T.F.P. has not carried the burden of proof imposed by Bergeron. We, therefore, affirm the trial court’s judgment.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the Appellant, T.F.P.

AFFIRMED.


source: Caselaw Access Project

author: McDonald, j. WHIPPLE, J.,

license: Public Domain

text:
    ST. TAMMANY PARISH HOSPITAL v. ACE AMERICAN INSURANCE COMPANY and Trinity Marine Products, Inc.
    No. 2010 CA 1480.
    Court of Appeal of Louisiana, First Circuit.
    June 16, 2011.

      Whipple, J., concurred in the result and assigned reasons.
    McClendon, J., concurred in the result and assigned reasons.
    R. Bray Williams, Natchitoches, LA, Thomas Allen Filo, Lake Charles, LA, for Plaintiff/Appellant St. Tammany Parish Hospital.
    James F. Scott, III, Metairie, LA, for Defendant/Appellee Ace American Insurance Company and Trinity Marine Products, Inc.
    Before WHIPPLE, McDONALD, and McClendon, jj.
   McDonald, j.

[ ¡.This appeal challenges a judgment of the workers’ compensation court dismissing a claim on an exception raising the objection of prescription. For the following reasons, we reverse.

FACTS

On August 8, 2008, Carl Sanders was injured while working. He received treatment at St. Tammany Parish Hospital, which rendered a bill for services to his employer, Trinity Industries, Inc., and their insurer, Ace American Insurance Company, in the amount of $1,541.25. An audit of the medical charges was conducted for Trinity/Ace by Broadspire Services, Inc., which deducted 10%, $154.12 as a “bill review reduction” and further reduced the total charges by $810.91, finding that several of the charges exceeded the maximum allowable. Thereafter, St. Tammany Parish Hospital was tendered payment of $576.22 on September 23, 2008.

On November 12, 2008, St. Tammany sent a letter of appeal to Broadspire for reconsideration on the reimbursement received, citing the Louisiana Office of Workers’ Compensation Medical Reimbursement Schedule, Chapter 25 Hospital Reimbursement, Section 2507 Outpatient Reimbursement, which provides that outpatient hospital and ambulatory surgery services will be reimbursed at covered charges less a ten percent discount. The additional amount claimed by St. Tammany was not paid, so they complained to the Office of Workers’ Compensation, Medical Services by letter dated January 19, 2009.

On January 26, 2009, Chris Broadwater, Director of Workers’ Compensation in the Louisiana Workforce Commission of the Office of Workers’ Compensation, sent a letter to St. Tammany Parish Hospital, with a copy to Broadspire, reiterating the rule cited by St. Tammany earlier, found in Chapter 251 sof the Workers’ Compensation Medical Reimbursement Schedule, and advising that the formula for calculating the payment amount is: (BILLED CHARGES) - (NONCOVERED CHARGES) = COVERED CHARGES x .90 = PAYMENT AMOUNT. The Office of Workers’ Compensation Administration recommended reimbursement for the hospital services in accordance with the cited rule.

After failing to receive additional compensation it thought was due, St. Tammany filed suit with the Office of Workers’ Compensation on November 16, 2009, including a request for penalties and attorney fees for arbitrary and capricious handling of the claim. Defendants, Trinity and Ace, filed an answer and an exception of prescription. On March 12, 2010, the matter was heard. The workers’ compensation judge noted that she had ruled repeatedly on the issue of penalties and attorney fees in accordance with the First Circuit’s decision in Craig v. Bantek West, Inc. 2003-2757 (La.App. 1 Cir. 9/17/04), 885 So.2d 1234, 1237, writ denied, 2004-2995 (La.3/18/05), 896 So.2d 1004. That case held that the claim for penalties and attorney fees was delictual in nature and subject to prescription in accordance with La. C.C. art. 3492, a one-year liberative prescriptive period commencing on the date of injury. A judgment was signed on April 6, 2010, finding that the claim for penalties and attorney fees was prescribed.

On April 30, 2010, defendants sent a letter to St. Tammany, tendering payment in the amount of $810.91 from Broadspire, the amount of the alleged underpayment, as well as for $66.16, from FAIRPAY solutions, the amount of interest calculated to be due on this amount. Thereafter, on May 4, 2010, the defendants submitted an ex parte motion for dismissal. On that same day, an order of dismissal with prejudice was signed by the workers’ compensation judge.

On June 18, 2010, St. Tammany filed a motion and order for a devolutive appeal from the judgment dismissing the claim because it believed the claim for ^penalties and attorney fees was still valid, which was granted the same day, and is the matter now before us.

DISCUSSION

Louisiana Revised Statutes 23:1201 F provides that failure to pay medical benefits in accordance with the Section shall result in a penalty, together with assessment of reasonable attorney fees for each disputed claim, unless “the claim is reasonably controverted.” As set forth in LSA-R.S. 28:1201 F(l), “[sjuch penalty and attorney fees shall be assessed against either the employer or the insurer, depending upon fault.” Health care providers are specifically given the right to collect penalties and attorney fees in 1201 F(4), which provides:

In the event that the health care provider prevails on a claim for payment of his fee, penalties as provided in this Section and reasonable attorney fees based upon actual hours worked may be awarded and paid directly to the health > care provider. This Subsection shall not be construed to provide for recovery of more than one penalty or attorney fee.

The statutes providing for penalties and attorney fees are penal in nature and must be strictly construed. Barber Bros. Contracting v. Young, 2003-0747, p. 7 (La.App. 1 Cir. 2/23/04), 873 So.2d 677, 681, writ denied, 2004-0704 (La.5/7/04), 872 So.2d 1084.

As noted, the workers’ compensation judge deciding this matter relied on this court’s decision in Craig in rendering her opinion. She held that the hospital’s claims had prescribed, because the injury and underpayment, were in September 2008, and suit was not filed until over a year later, in November 2009. The “injury” caused to the health care provider in receiving an underpayment, however, is distinguishable from a “work-related injury” suffered by an employee. For several reasons, which we will address following, this case is distinguishable from Craig and requires a different result.

|sIn Craig, this court affirmed the workers’ compensation court’s subject matter jurisdiction to hear claims for penalties and attorney fees, holding that although they were delictual in nature, they nevertheless were “a determination of benefits and penalties directly associated with the employee’s work-related injury and his receipt of worker’s compensation benefits.” 885 So.2d at 1238. The statute at issue here, LSA-R.S. 23:1201, is in the Labor and Workers’ Compensation Law in Part II, regulating benefits. It is in subpart A, General Provisions, and covers time and place of payment, failure to pay timely, failure to authorize medical treatment, and penalties and attorney fees. These laws provide for payment for compensation or for medical benefits in a designated time-frame, and for a penalty for failure to do so. It is directly related to the payment of medical benefits for a work-related accident and is clearly within the jurisdiction of the workers’ compensation court. However, it does not directly state when a claim for the penalty must be brought.

Also at issue in Craig, therefore, was the issue of prescription. Mr. Craig had argued that his claim for penalties and attorney fees was subject to the ten-year prescriptive period found in Civil Code article 3499. He relied on the supreme court decision in Lester v. Southern Cas. Ins. Co., 466 So.2d 25 (La.1985). Craig noted:

The claim at issue in Lester involved an ongoing nonpayment of medical benefits pursuant to the Louisiana Workers’ Compensation Act. Noting that La. R.S. 23:1209 did not specifically provide a prescriptive period for medical expenses, the Louisiana Supreme Court held that the ten-year prescriptive period for personal actions pursuant to La. Civ.Code art. 3499 was applicable. Lester, 466 So.2d at 28.
| (¡Subsequent to the decision in Lester, by Acts 1985, No. 926, § 1, effective January 1, 1986, the legislature added a prescriptive period to La. R.S. 23:1209 for medical benefits, which is now designated as Subsection C and provides as follows:
All claims for medical benefits payable pursuant to R.S. 23:1203 shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed with the office as provided in this Chapter. Where such payments have been made in any case, this limitation shall not take effect until the expiration of three years from the time of making the last payment of medical benefits.

Craig v. Bantek West, Inc., 885 So.2d at 1240.

Craig also considered the issues underlying prescription noting, “It is well settled in Louisiana jurisprudence that the purpose of a prescription statute is to afford a defendant economic and psychological security if a cause of action is not pleaded timely and to protect the defendant from stale claims and the loss of relevant proof Terrel v. Perkins, 96-2629, p. 4 (La.App. 1 Cir. 11/7/97), 704 So.2d 35, 38.” It cited with approval the written reasons for judgment in the case before it:

Claims for penalties and attorney fees arise at a specific point in time, namely the point in time at which a party allegedly fails to reasonably controvert a claim or arbitrarily and capriciously discontinues benefits.... [Sjince the claim for penalties and attorney fees arises at the time of the alleged misconduct, this court can think of no good reason to allow a longer period of time for the penalty and attorney fee claim than is .allowed for the actual claim for benefits.

Craig v. Bantek West, Inc., 885 So.2d at 1240.

In the case before us, the claim for penalties and attorney fees is made pursuant to La. R.S. 23:1209, which provides, in pertinent part:

C. All claims for medical benefits payable pursuant to R.S. 23:1203 shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed with the office as provided in this Chapter. Where such payments have been made in any case, this | ./limitation shall not take effect until the expiration of three years from the time of making the last payment of medical benefits.

Since a payment was made in this case, slightly more than one month after the accident, we are not within the one-year prescriptive period. The Legislature has decreed that the “limitation [on bringing actions] shall not take effect until the expiration of three years from the time of making the last payment of medical benefits.” The “last payment” was made on September 23, 2008. Therefore, the right to bring the claim for penalties and attorney fees would prescribe three years from that date.

We also note that the portion of the statute dealing with the parties before us, LSA-R.S. 23:1201 F(4), specifies that the health care provider may only be awarded penalties and attorney fees “[i]n the event that [it] prevails on a claim for payment of [its] fee.” The health care provider’s action in this case is ancillary to its claim for benefits. Both claims can be and should be filed together in the same suit, at the same time, as was done in this case. After a trial on the claim for payment of fees is concluded, the court can then determine applicable penalties and attorney fees, if warranted.

CONCLUSION

We find that the claim of a health care provider for penalties and attorney fees is ancillary to its action for, and requires a disposition of, its claim for disputed benefits, but must be filed in the action asserting the disputed claim. The claim of a health care provider for penalties and attorney fees is distinguishable from this court’s decision in Craig v. Bantek West, Inc., 2003-2757 (La.App. 1 Cir. 9/17/04), 885 So.2d 1234, which involved a claim of an injured worker. The claims for penalties and attorney fees in this case are subject to a three-year prescriptive period and had not prescribed at the time the disputed claim was filed |8m November 2009. Accordingly, the decision of the Workers’ Compensation Court is reversed, and this matter is remanded for further proceedings.

REVERSED AND REMANDED.

WHIPPLE, J., concurs with reasons assigned.

McCLENDON, J., concurs and assigns reasons.

WHIPPLE, J.,

concurring.

1 Here the (underpayment occurred on September 23, 2008. As the record shows, and the majority notes, .the additional amount claimed by St. Tammany was not paid, so it “complained to the Office of Workers’ Compensation, Medical Services by letter dated January 19, 2009.” Thus, pretermitting whether Craig mandates a one-year prescriptive period herein, or, whether a three-year period applies, St. Tammany clearly controverted the underpayment timely.

Thus, I respectfully concur in the ultimate holding.

McCLENDON, J., concurs and assigns reasons.

| T Since the claim for penalties and attorney’s fees arises at the time of the alleged misconduct, no logical basis exists for applying a shorter period of time for the penalty and attorney fee claim than is allowed for the actual claim for benefits. Thus, in this case, the prescriptive period for penalties and attorney’s fees should be the same as the three-year prescriptive period for the underlying claim. Accordingly, I concur with the result reached by the majority.

      . A 10% discount on hospital charges is provided for in the Workers’ Compensation Fee Schedule.

      . The court in Craig, was examining the supreme court decision in Sampson v. Wendy's Management, Inc. 593 So.2d 336 (La.1992), which held that a claim of retaliatory discharge was an employment law matter rather than a claim for workers' compensation benefits or penalties for adjudication by the Office of Workers’ Compensation. Mr. Craig had claimed that all delictual actions are outside the jurisdiction of the Office of Workers' Compensation.

      . Civil Code article 3499 provides: "[ujnless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years.”

      . This cause of action is analogous to a suit for redhibition. A claim is also made for attorney fees with the expectation that during the trial on the merits the plaintiff will prove the bad faith of the seller. If bad faith is proven then the court will award attorney fees.


author: LOLLEY, J. CARAWAY, CARAWAY, J.

text:
    STONETRUST COMMERCIAL INS. CO. & Greg Williams Logging, LLC, Plaintiffs-Appellants v. Cornelious GEORGE, Defendant-Appellee.
    No. 46,560-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 28, 2011.
    Opinion on Rehearing Nov. 23, 2011.
    Caraway, J., dissents with written reasons.
    Brown, C.J., dissented for reasons expressed in original opinion of Lolley, J.
    Lolley, J., dissented for reasons assigned in original opinion.
    Michael S. Coyle, Ruston, LA, William A. Jones, Jr., for Appellants.
    Street & Street, Monroe, LA, by C. Daniel Street, for Appellee.
    Before BROWN, CARAWAY and LOLLEY, JJ.
   LOLLEY, J.

b Greg Williams Logging, LLC, and its workers’ compensation insurer, Stonetrust Commercial Insurance Company (collectively referred to as “Stonetrust”), appeal the judgment of the Office of Workers’ Compensation (“OWC”), District 01 E, State of Louisiana, dismissing their Motion for Summary Judgment and granting the Motion for Summary Judgment of Cornelious George. For the following reasons we amend the OWC’s judgment, and as amended, affirm.

Facts

From January 28, 2008, through February 7, 2009, George was employed as a log truck driver with Greg Williams Logging, LLC. On March 18, 2008, George was involved in a motor vehicle accident while driving a loaded log truck. A vehicle failed to yield, pulled out in front of George, and caused the accident; George was not at fault. The two women in the other vehicle were killed, while George sustained only minor injuries. He received medical treatment and began working again in late May 2008. George maintains that after the accident he began having pain in his neck that radiated down his arms as well as numbness. He also claimed to have psychological effects such as flashbacks of the accident, inability to sleep, and anxiety. Because he assumed these problems would go away, George continued working. In December 2008, when George still had no relief from these symptoms, he saw Dr. James Finley, an orthopedic surgeon, who then referred him to Dr. Herbert Vandenberg, a psychiatrist, for his mental |2symptoms. George began seeing Dr. Vandenberg monthly to regulate medication for his psychological issues, as well as Andrea Williams, a counselor, with whom he met for weekly sessions. In February 2009, George was diagnosed with Post Traumatic Stress Disorder (“PTSD”) and was found to be unable to work. Stonetrust began paying George weekly workers’ compensation indemnity benefits for temporary total disability in the amount of $522.00 per week. Stonetrust also paid for his medical treatment. Around the time George was found to be unable to work, he received a fax indicating that on February 7, 2009, he had been fired from his job for insubordination to the owner of Greg Williams Logging, LLC. George continued to be unable to work and received indemnity payments from Stone-trust, as well as payment for his medical treatment.

In Juné 2009, George was arrested and charged with possession of marijuana with intent to distribute, possession of a Schedule IV drug, possession of drug paraphernalia, resisting arrest, and battery of a police officer. The local newspaper ran a story about the events surrounding his arrest. It stated that the Lincoln Parish SWAT team entered George’s home to execute a search warrant, because he was suspected of dealing drugs. It also stated that George “would not go down without a fight” and that he “charged the team and began hitting one of the members[.]” George later pled guilty to simple possession of marijuana and all the other charges were dropped. He was sentenced to one year of probation for this conviction.

On June 24, 2009, Stonetrust filed a claim seeking approval to terminate benefits, stating as its reason, “Employer seeks termination of|3benefits because claimant’s physical capability is equal to pre-injury status. See attached newspaper article.” Before receiving the approval it sought from OWC to terminate the benefits, however, Stonetrust unilaterally terminated George’s indemnity benefits on September 9, 2009. It reasoned that if George was able to assault a police officer and deal drugs, he was physically and mentally capable of driving a log truck. Stonetrust’s claim to terminate the benefits proceeded on, nonetheless, and a trial date was set before the OWC. George filed a reconven-tional demand seeking the resumption of payment of indemnity benefits along with penalties and attorney fees for the wrongful discontinuance of benefits and the refusal of Stonetrust to provide medical treatment. George also filed a Motion for Summary Judgment. Stonetrust amended its claim to add the defense of fraud pursuant to La. R.S. 23:1208 based on allegedly false statements George made to his doctors in the interest of receiving workers’ compensation benefits. Stonetrust also filed a cross motion for summary judgment.

After a hearing on the matter, the OWC denied Stonetrust’s motion for summary judgment and granted George’s motion for summary judgment seeking the resumption of the payment of his indemnity benefits and medical treatment. Additionally, George was awarded $8,000.00 in penalties and $8,000.00 in attorney fees. Stonetrust now asserts the instant appeal.

14Law and Discussion

In its assignments of error Stonetrust claims the trial court erred in both granting George’s Motion for Summary Judgment, as well as denying Stonetrust’s Motion for Summary Judgment. Specifically, Stonetrust claims the trial court erred when it found that George did not make false statements to his treating physician in order to obtain workers’ compensation benefits, constituting fraud and thereby precluding him from receiving benefits. George claims Stonetrust discontinued the payment of benefits without any medical support. He also denies making any false statements for the purpose of obtaining workers’ compensation benefits. On appeal, George also requests an additional $4,000.00 in attorney fees.

The purpose of the Louisiana Workers’ Compensation Act is to create a compromise in which both employees and employers surrender certain advantages in exchange for others which are more valuable to both parties and society. Deshotel v. Guichard Operating Co., Inc., 2003-3511 (La.12/17/04), 916 So.2d 72. To encourage employers to make voluntary workers’ compensation payments to legitimately injured employees, the legislature has enacted specific provisions. Snelling Personnel Services v. Duhon, 2000-661 (La.App.3d Cir.11/02/00), 772 So.2d 350. When an employee has no judgment declaring his entitlement to benefits, but, rather, the employer has been paying these benefits voluntarily, those payments are not admissions of liability. Id. Workers’ compensation law allows an employer or employee to file a claim with the OWC to resolve a dispute between the employer and the claimant. La. R.S. 23:1310(A). It is not | ¿legally necessary that an employer file a 1008 form with the OWC requesting permission to terminate benefits that are being paid voluntarily; the employer may terminate voluntary payments at will and with impunity, provided the termination is not arbitrary and capricious. Snelling Personnel Services v. Duhon, supra. However, if the employer does not seek permission to terminate benefits through the filing of a 1008 form in advance of actually terminating those benefits, it puts itself at risk of having to pay penalties and attorney fees if the OWC finds the unilateral termination of benefits was arbitrary and capricious. Id.

To enforce the payment of workers’ compensation benefits, several statutes provide for the imposition of penalties and attorney fees for delinquent payment or for nonpayment of benefits. Any employer or insurer who at any time discontinues payment of compensation claims due, when such discontinuance is found to be “arbitrary, capricious, or without probable cause,” is subject to a penalty not to exceed $8,000.00 and reasonable attorney fees. La. R.S. 28:1201(1); Brien v. Leon Angel Constructors, Inc., 42,904 (La.App.2d Cir.03/12/08), 978 So.2d 576, writ denied, 2008-0802 (La.06/06/08), 983 So.2d 919. Arbitrary and capricious conduct is willful and unreasonable action, without consideration and regard for the facts and circumstances presented. J.E. Merit Constructors, Inc. v. Hickman, 2000-0943, (La.01/17/01), 776 So.2d 435; Brien v. Leon Angel, supra. Awards of penalties and attorney fees in workers’ compensation cases are essentially penal in nature, and are imposed to deter indifference and undesirable conduct by employers and their insurers toward injured workers. Trahan v. Coca Cola Bottling Co. United, Inc., 2004-0100 (La.03/02/05), 894 So.2d 1096.

A workers’ compensation claimant is generally entitled to an additional attorney fee to reflect additional time incurred in defending the employer’s unsuccessful appeal. Frith v. Riverwood, Inc., 2004-1086 (La.01/19/05), 892 So.2d 7; Thomas v. Hollywood Casino, 44,271 (La.App.2d Cir.05/13/09), 13 So.3d 717. Any award of an attorney fee is subject to review under the court’s inherent power to regulate the practice of law. State, Dept. Of Transp. and Development v. Williamson, 597 So.2d 439 (La.1992); Reed v. St. Francis Medical Center, 44,211 (La.App.2d Cir.04/08/09), 8 So.3d 824.

An employer has a continuing duty to fully investigate an employee’s medical status before terminating benefits. Wilson v. St. Mary Community Action, 2000-2106, (La.App.1st Cir.12/28/01), 803 So.2d 1106. Compensation benefits may not be terminated based on inconclusive medical reports. An employer or insurer must make reasonable efforts to ascertain the employee’s exact medical condition before terminating benefits. Id. Termination of benefits may be considered arbitrary when it appears further medical information was required to make an exact determination of the employee’s condition. This obligation is continuing in nature. Id.

Misrepresentation and forfeiture under the Workers’ Compensation Act are regulated by La. R.S. 23:1208 which states, in pertinent part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the 17provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

The only requirements for a forfeiture of benefits under this statute are: (1) a false statement or representation; (2) willfully made; and (3) made for the purpose of obtaining or defeating any benefit or payment. Resweber v. Haroil Const. Co., 94-2708 (La.09/05/95), 660 So.2d 7; Thomas v. Hollywood Casino, supra. All three requirements must be present before a penalty will be imposed. Gilcrease v. Wal-Mart Stores, Inc., 36,523 (La.App.2d Cir.12/11/02), 843 So.2d 415. There is no requirement of prejudice to the employer; when the statute is satisfied, benefits will be forfeited for the sole reason that the claimant has willfully and deliberately attempted to defraud the workers’ compensation system, and no further requirements are to be imposed. Freeman v. Chase, 42,716 (La.App.2d Cir.12/05/07), 974 So.2d 25.

Forfeiture is a harsh remedy and must be strictly construed. An inadvertent and inconsequential false statement -will not result in forfeiture of benefits. Louisiana R.S. 23:1208 does not penalize any false statement, but only those willfully made for the purpose of obtaining benefits. The relationship between the false statement and the pending claim will be probative in determining whether the statement was made willfully for the purpose of obtaining benefits. Slater v. Mid-South Extrusion, 43,343 (La.App.2d Cir.08/13/08), 989 So.2d 252.

| ^Another way an employee may forfeit his right to receive benefits is by becoming incarcerated. Louisiana R.S. 23:1201.4 governs this type of forfeiture. It states:

The employee’s right to compensation benefits, including medical expenses, is forfeited during any period of incarceration, unless a workers’ compensation judge finds that an employee has dependents who rely on a compensation award for their support, in which case said compensation shall be made payable and transmitted to the legal guardian of the minor dependent or other person designated by the workers’ compensation judge and such payments shall be considered as having been made to the employee. After release from incarceration, the employee’s right to claim compensation benefits shall resume. An employee who is incarcerated but is later found to be not guilty of felony criminal charges or against whom all felony charges have been dismissed by the prosecutor shall have the prescriptive period for filing a claim for benefits under this Chapter extended by the number of days he was incarcerated.

The OWC’s finding or denial of forfeiture will not be disturbed on appeal absent manifest error. Thomas v. Hollywood Casino, supra; Slater v. Mid-South Extrusion, supra. When there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Moore v. Transmissions, Inc., 41,472 (La.App.2d Cir.09/27/06), 940 So.2d 694. Under this standard, if the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Baker v. Stanley Evans Logging, 42,156 (La.App.2d Cir.06/20/07), 960 So.2d 351, writ denied, 2007-1817 (La.12/14/07), 970 So.2d 533.

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact. In re Clement, 45,454 (La.App.2d Cir.08/11/10), 46 So.3d 804. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action allowed by law. La. C.C.P. art. 966(A)(2). A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Palmer v. Martinez, 45,318 (La.App.2d Cir.07/21/10), 42 So.3d 1147, writs denied, 2010-1952, 2010-1953, 2010-1955 (La.11/05/10), 50 So.3d 804, 805. Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Palmer v. Martinez, supra. Summary judgment is seldom appropriate for determinations based on subjective facts of motive, intent, good faith, knowledge or malice, yet it may be granted on a subjective issue when no issue of material fact exists concerning that issue. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.07/05/94), 639 So.2d 730; Brown v. International Paper Co., 38,892 (La.App.2d Cir.09/22/04), 882 So.2d 1228.

The questions presented here are twofold: (1) whether the summary judgment evidence presented is sufficient to find that George is entitled to judgment as a matter of law ordering payment of benefits, medical treatment, penalties, and attorney fees, and (2) whether the OWC erred in finding that George had not committed fraud.

|TnIt is clear here that George was injured in a work-related accident. Neither party disputes that fact. It is also clear that Stonetrust voluntarily began paying George indemnity benefits and then unilaterally discontinued those payments based on a newspaper article. Prior to the termination of payments George was receiving benefits for temporary total disability. Louisiana R.S. 23:1221(l)(d) defines when these benefits can be terminated. It states:

An award of benefits based on temporary total disability shall cease when the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made and the employee’s physical condition has improved to the point that continued, regular treatment by a physician is not required. (Emphasis added.)

A “reasonably reliable determination” that George was no longer entitled to benefits can certainly not be made solely from a newspaper article. This determination especially cannot be made when that newspaper article reported facts contrary to the arresting officer’s testimony in deposition. Officer Kenneth Sasser of the Lincoln Parish Sheriffs Department SWAT team was the officer who came into physical contact with George the night of his arrest. Upon entering George’s home, without warning, in the early hours of the morning, when it was still dark outside, Off. Sasser testified that George ran at him as he entered. Officer Sasser testified that he did not give George the opportunity to strike him because he immediately locked his arms down. George testified similarly. He explained that when he heard something at his door he thought someone was breaking into his home, so he ran out the door and ran over the first thing that was in front of him, namely, Off. Sasser. The OWC also noted Inthe distinctions between the newspaper article and the testimony, and in its reasons for judgment stated:

So the picture that had been painted by defendants in this case became a different view after actually looking at the deposition testimony. Initially the picture had been painted that Mr. George was actually fighting and swinging and actually getting the best of the officers. Well, after reviewing the documents and seeing how Mr. George was hit in the head with a helmet and how his arms were pinned underneath the armpits of the officer, I don’t see how Mr. George was able to do a lot of swinging.

Thus, it is clear that by relying solely on a factually unreliable newspaper article as the basis for the termination of benefits, Stonetrust did not make a “reasonably reliable determination.”

Additionally, George was still being treated regularly for his PTSD at the time the payments were terminated; Dr. Van-denberg had not released him to return to work. Termination of benefits may be considered arbitrary when it appears further medical information was required to make an exact determination of the employee’s condition. Here, there was no medical basis for terminating benefits. Stonetrust argues that if George could deal drugs and attack a police officer, he could drive a log truck. However, we fail to see this correlation. George was diagnosed with PTSD and received benefits because of this diagnosis. The incidents of the night of his arrest, as published in the newspaper article, are not credible, nor do they make any sort of medical conclusions about George’s mental health or his ability to drive a log truck. There is nothing to. support the conclusion that George’s health had changed whatsoever from the time he was taken off work. | ^Therefore, we find that Stonetrust terminated George’s benefits arbitrarily and capriciously, with no medical basis.

It is also important to note that George did not forfeit his right to benefits because of his arrest. While La. R.S. 23:1201.4 provides that an employee forfeits his right to receive benefits while incarcerated; it does not state that this forfeiture applies upon arrest. Additionally, the statute provides if an employee is incarcerated and later found to be not guilty, he is entitled to make a claim for the extension of his benefits for the number of days he was incarcerated. Therefore, George did not forfeit his right to benefits when he was arrested and was only sentenced to probation, not incarceration.

We have found that George was entitled to receive benefits and that Stonetrust wrongfully discontinued them; therefore, George is entitled to the resumption of those benefits unless we find that he violated La. R.S. 23:1208, the statute governing the forfeiture of benefits for fraud. The requirements for a forfeiture of benefits are: (1) a false statement or representation; (2) willfully made; and (3) made for the purpose of obtaining or defeating any benefit or payment. While we do not condone untruthfulness, it is important to remember that forfeiture is a harsh remedy and must be strictly construed; an inadvertent and inconsequential false statement will not result in forfeiture of benefits.

Stonetrust highlights five statements it claims were falsely made by George and warrant a forfeiture of his benefits. The first statement was made when George told Dr. Vandenberg that he had stopped working |1Rdue to wrist pain. Stonetrust asserts this was false because George had actually stopped working because he had been fired. The second statement was made when George told Dr. Vandenberg he had no history of legal problems. Sto-netrust points out that George actually had several convictions in his past. The third and fourth statements were also made to Dr. Vandenberg. George stated he was not using illegal drugs and also described the details of his arrest. Stonetrust argues that George’s subsequent conviction for possession of marijuana proves that the first statement was fraudulently made. Stonetrust also argues that because George did not accurately convey the details of his arrest this also constitutes fraud. Last, Stonetrust asserts George made several false statements to Dr. David Williams who was examining him, not for the purposes of workers’ compensation, but in connection with a Social Security claim. Because George requested that Dr. Williams’ report depicting the answers to his questions be sent to Dr. Vandenberg, Stonetrust asserts any false statements made to Dr. Williams would have been for the purpose of obtaining workers’ compensation benefits and would warrant a forfeiture.

We find no statements made that constitute fraud as described in La. R.S. 23:1208 for several reasons. First, some of these statements cannot be said to be truly false as they are open to different interpretations. For example, when George stopped working there were several factors at play: his wrist pain, his PTSD, and his being fired. Therefore, while maybe not technically correct, it was not a blatant lie when George stated his wrist pain | [4was a reason for stopping working. Second, George may have inadvertently made falsities in his statements. In describing his arrest, he mentioned having been caught with Xa-nax, yet failed to mention the other drugs involved. Those details may have been left out inadvertently. Third and most importantly, none of the statements appear to have been made for the purpose of obtaining benefits. George’s illegal drugs, the technical reason for his stopping working, and the details of his arrest would not have precluded him from receiving benefits; therefore, these statements do not constitute fraud warranting a forfeiture of his benefits. Additionally, we do not find that the statements George made to Dr. Williams were made with the intent to eventually get to Dr. Vandenberg and help him obtain workers’ compensation benefits, especially since Dr. Vandenberg had asked George many of the same questions himself.

The statements made by George are not the type of statements that typically warrant a forfeiture of benefits. For example, in Johnson v. Pinnergy, Ltd. 46,188 (La.App.2d Cir.04/13/11), 63 So.3d 302, the claimant lied under oath stating he had never seen a doctor for the work-related injury for which he was being compensated, when he in fact had. He also lied under oath stating he had never received medical treatment for a medical issue similar to his current issue prior to the work-related injury. This court found that the employee had forfeited his right to benefits because he had made false statements for the purpose of obtaining workers’ compensation benefits. Here, the false statements Stonetrust points out did not directly relate to George’s work-related injury or treatment. While |1sGeorge may not have always been an accurate historian, the inconsistencies in his statements do not rise to the level of fraud warranting forfeiture of his right to receive benefits.

Thus, we find the OWC did not err when it granted George’s Motion for Summary Judgment, ordering Stonetrust to pay George $522.00 per week in benefits from September 9, 2009 to the present and continuing in accordance with the law, all reasonable and necessary medical treatment for his work-related injuries, $8,000.00 in penalties, and $8,000.00 in attorney fees. We also amend the judgment to include payment of an additional $4,000.00 in attorney fees for the work George’s attorney performed on this appeal.

Conclusion

Considering the foregoing, we amend the judgment of the OWC in favor of Cornelious George and, and as amended, we affirm. All costs of this appeal are assessed to the appellants, Greg Williams Logging, LLC, and Stonetrust Commercial Insurance Company.

AMENDED, AND AS AMENDED, AFFIRMED.

CARAWAY, J., dissents with written reasons.

CARAWAY,

dissenting.

1,1 respectfully dissent from the majority’s opinion.

There are three important points that require reversal in this case. First, an improper legal standard was applied by the majority causing a prohibited focus on Stonetrust’s voluntary payment of benefits and effectively eliminating George’s burden of proving his disability in the first place. “Neither the furnishing of medical services nor payments by the employer or his insurance carrier shall constitute an admission of liability for compensation under this Chapter.” La. R.S. 23:1204. Contrary to that mandate under the Act addressing voluntary payments, the majority holds Stonetrust to the standard under La. R.S. 28:1221 which addresses the termination of payments after a judicial “award” of temporary total disability benefits.

Section 1221 of the Act is the definitional provision for temporary total disability (TTD) benefits. It does not address an employer’s voluntary payment of benefits. Section 1221(l)(e) expressly establishes the employee’s burden of proof to show by clear and convincing evidence that he is unable to engage in any employment. Section 1221(l)(d) then addresses the employer’s cessation of payments after an “award” of TTD benefits, when a “reasonably reliable determination” reveals the disability to have resolved. To end its voluntary payments, Stonetrust did not need to make a reasonably reliable determination about George’s unproven disability. Under Section 1221 and under the test for summary judgment, George had to show by clear and convincing evidence and without any 12material issues of fact that a work-related accident caused his disability which rendered him unable to engage in employment.

The majority cites Snelling Personnel Services v. Duhon, 2000-661 (La.App.3d Cir.11/2/00), 772 So.2d 350, for the rule that voluntary benefit payments are never determinative of the employer’s liability and then ignores the Snelling ruling. As in the present ease, the Snelling employer had made voluntary payments of disability benefits, and the employee sought to place the burden of proof on the employer to justify the employer’s decision to end those benefits. Citing La. R.S. 23:1204, the court ruled:

Mr. Duhon has no judgment declaring his entitlement to benefits; rather, Snelling has been paying these benefits voluntarily. Therefore Snelling’s payments are not admissions of liability. If we were to allow Mr. Duhon to now shift the burden of proof to Snelling, then Mr. Duhon, the claimant, in essence would be allowed to entirely avoid ever having to bear the burden of proving that his injury was compensable under the standards articulated in La. R.S. 23:1221. Mr. Duhon may not now avoid this obligation by arguing that the employer’s voluntary payments shifted the burden of persuasion.

Snelling, supra at 353. The workers’ compensation judge and the majority have now thoroughly tried the statements in a newspaper article and the circumstances of George’s brush with law enforcement officers. In the process, George was not required to show that he is disabled and that no genuine issues of material fact exist regarding his disability.

Second, the record is less than clear as to which disabling condition George now suffers. The majority apparently rests its affirmation of this summary judgment only on the undisputed finding of a work-related accident. Yet, it never states any undisputed facts pinpointing the | .¡employee's disabling injury. The majority says, “there were several factors at play: his wrist pain, his PTSD, and his being fired.” Those factors are at variance and easily combine together as a cloud of material fact issues. George claimed in his pleadings a disability for either a physical injury (wrist or neck injury), occupation disease (carpal tunnel syndrome) or PTSD, which, when blurred together, create significant material issues of fact.

Importantly, the majority’s opinion obscures the timeline of events in the first three months of 2009 and is completely inaccurate as to the time of the diagnosis of PTSD. This inaccuracy clouds an important implication concerning George’s firing. Prior to February 7, 2009, when George was fired, he had worked as a truck driver continuously since two days after his May 18, 2008 accident and had received no opinion by a physician that he was unable to work. In January 2009, Dr. Finley’s examination as an orthopedist concerned primarily George’s wrist injury and carpal tunnel disease. Five days after he was fired, George returned to Dr. Finley, who then first recommended that George see a psychiatrist. The records of Dr. Finley, who was not deposed, suggest that Dr. Finley gave George an excused absence from work until a March 2009 examination by a psychiatrist could be made. George first saw the psychiatrist, Dr. Vandenberg, on March 30, 2009. The PTSD diagnosis was therefore made seven weeks after George was fired.

To complicate matters further, Stone-trust’s voluntary payments were apparently tied to the possibility of a physical disability related either to | injuries received in the vehicle accident or carpal tunnel syndrome. There is no clear evidence that Stonetrust ever acknowledged PTSD as the reason for its voluntary payment of benefits.

Therefore, with this proceeding filed as an employer-instituted action, it is not clear whether the employee desires to prove a physical injury from the accident, carpal tunnel syndrome, or PTSD. The first two of these disabilities clearly raise material fact issues since George worked unimpeded for a lengthy period of time after the accident. There is no showing that George has been diagnosed by a physician as disabled because of a physical injury. With the employee taking a shotgun approach with claims of multiple causes for his disability, the majority opinion never identified exactly which of those causes has been proven without any genuine issue of material fact.

Finally, from a review of Dr. Vanden-berg’s deposition, genuine issues of material fact exist regarding the diagnosis of the mental injury, PTSD, and its disabling effect. Moreover, one undisputed fact requires reversal of the judgment’s award for TTD. Despite his diagnosis, Dr. Van-denberg testified that George is able to work, and in fact, Dr. Vandenberg has encouraged him to return to work.

La. R.S. 23:1021(8)(b), (c) and (d) address mental injury sustained by employees, as follows:

(b) Mental injury caused by mental stress. Mental injury or illness resulting from work-related stress shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter, unless the mental injury was the result of a sudden, unexpected, and extraordinary stress 1 ^related to the employment and is demonstrated by clear and convincing evidence.
(c) Mental injury caused by physical injury. A mental injury or illness caused by a physical injury to the employee’s body shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence.
(d) No mental injury or illness shall be compensable under either Subparagraph (b) or (c) unless the mental injury or illness is diagnosed by a licensed psychiatrist or psychologist and the diagnosis of the condition meets the criteria as established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders presented by the American Psychiatric Association.

For the recovery of workers’ compensation benefits for mental injury, “the ‘clear and convincing’ standard is a heavier burden of proof than the usual civil case of ‘preponderance of the evidence’ standard but is less burdensome than the ‘beyond a reasonable doubt’ standards of a criminal prosecution.” Traweek v. City of West Monroe, 30,571 (La.App.2d Cir.5/13/98), 713 So.2d 655.

As shown in this court’s ruling in Traw-eek, which involved the diagnosis of PTSD in a workers’ compensation setting, the diagnostic criteria of PTSD require the accurate reporting of the persistent symptoms of the patient. A psychiatric assessment and explanation of human behavior depends upon the credibility of the patient’s report. In this case, there are many factual issues surrounding George’s reporting to Dr. Vandenberg. Dr. Van-denberg testified that George did not report that he had returned to work after the accident and worked for over eight months until he was fired. Instead, George reported that his wrist injury was his reason for not working. Immediately prior to the hearing on the summary judgment, | nGeorge was arrested again on charges including possession of a firearm by a convicted felon and possession of a Schedule III illegal drug with intent to distribute. Dr. Vandenberg admitted that he did not specifically ask George about any prior arrest or conviction. When asked by Dr. Vandenberg regarding prior legal problems, George denied such problems. Yet, in his deposition, George admitted his convictions prior to 2008 for manslaughter and domestic abuse violence. Therefore, Dr. Vandenberg’s diagnosis was made without knowledge of those prior traumatic criminal events.

Regardless of Dr. Vandenberg’s diagnosis of PTSD, I find that there are genuine issues of material fact regarding George’s underlying reporting of crucial facts upon which a psychological evaluation must be made. While the majority may reject Sto-netrust’s claim for forfeiture of benefits under La. R.S. 23:1208 and excuse George for “inadvertently” making “falsities” in his statement, neither the trial court nor the appellate court may make such credibility calls in rendering a summary judgment. This award for a physical/mental injury under the workers’ compensation act requires clear and convincing evidence and no genuine issues of material facts and should be reversed.

ON REHEARING

Before BROWN, GASKINS, CARAWAY, PEATROSS and LOLLEY, JJ.

CARAWAY, J.

hWe granted rehearing to reconsider our earlier opinion in this case. In our earlier opinion, we affirmed Cornelious George’s motion for summary judgment against Greg Williams Logging, LLC, and its workers’ compensation insurer, Stone-trust Commercial Insurance Company (collectively referred to as “Stonetrust”). After further review, we find genuine issues of fact that preclude a motion for summary judgment. As a result, we reverse our original opinion and remand for a trial on the merits.

While the facts were discussed in detail in our prior opinion, a recitation of the material facts will illustrate why a reversal is necessary in this case. Cornelious George was employed as a log truck driver with Gregg Williams Logging, LLC from January 28, 2007 until February 7, 2009. On May 18, 2008, while on the job, George was involved in a motor vehicle accident. Although George was not at fault in the accident, two women in the other vehicle were killed. George sustained minor injuries as a result of the accident. Nevertheless, on May 20, 2008, two days later, George returned to work and in fact worked until he was terminated in February 2009. The employer’s asserted reason for the termination was for George’s insubordination.

After the accident, Stonetrust paid medical benefits relating to the accident. George argues that he began experiencing physical and mental symptoms which he claims are related to the accident. In December 2008, |2George saw Dr. Self regarding these physical symptoms. After Stonetrust recommended he switch doctors, George saw Dr. James Finley, an orthopedic surgeon, on January 18, 2009, regarding his wrist injury and carpal tunnel disease. He continued working until he was fired on February 7, 2009. George claims that he did not receive notice that he was fired until after Dr. Finley decided he should not return to work on February 12, 2009. That fact is in dispute.

Five days after he was fired, George returned to Dr. Finley, who then recommended that George see a psychiatrist because he thought that a psychiatrist was “probably going to give him more relief than anything else.” At this time, Dr. Finley first gave George an excused absence from work that was extended until George met with Dr. Herbert Vandenberg, a psychiatrist, for his mental symptoms. George was not diagnosed with Post Traumatic Stress Disorder (“PTSD”) until his first meeting with Dr. Vandenberg, on March 30, 2009. When Dr. Vandenberg diagnosed George with PTSD, George did not inform him that he had returned to work after the accident for over eight months, had recently been fired, and had prior convictions for manslaughter and domestic abuse violence.

Discussion

In response to the filing of this action by his employer, George reconvened with his claim for disability by his Form 1008 filing. To the extent that George claims a physical disability and temporary total disability (“TTD”) benefits, Section 1221(l)(c) of the Workers’ Compensation Act places upon the employee the burden of proof to show by clear and | oconvincing evidence that he is unable to engage in employment. La. R.S. 23:1221(l)(c). George’s additional claim for a mental injury is specifically addressed under Section 1021 of the Act which provides, in pertinent part, as follows:

La. R.S. 23:1021(8)

(b) Mental injury caused by mental stress. Mental injury or illness resulting from work-related stress shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter, unless the mental injury was the result of a sudden, unexpected, and extraordinary stress related to the employment and is demonstrated by clear and convincing evidence.
(c) Mental injury caused by physical injury. A mental injury or illness caused by a physical injury to the employee’s body shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence.
(d) No mental injury or illness shall be compensable under either Subparagraph (b) or (c) unless the mental injury or illness is diagnosed by a licensed psychiatrist or psychologist and the diagnosis of the condition meets the criteria as established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders presented by the American Psychiatric Association.

The workers’ compensation judge (“WCJ”) did not cite these standards in awarding TTD benefits or specifically identify the disabling condition rendering George unable to engage in employment. Instead, in violation of Section 1204 of the Act, the WCJ simply determined that the employer had improperly discontinued its voluntary payments of benefits to George. La. R.S. 23:1204. This was error for the legal assessment of George’s claims, and from a summary judgment standpoint, the reach for |4such ruling in violation of Section 1204 obscured the genuine issues of material fact pervading George’s claims for the various physical and mental injuries he asserts.

From the record, we find no evidence of a physical injury which disabled George and which was proven to be caused by the accident. Also, as previously stated in the dissent to this court’s initial ruling, the diagnostic criteria of PTSD require the accurate reporting of the persistent symptoms of the patient. Traweek v. City of West Monroe, 30,571 (La.App.2d Cir.5/13/98), 713 So.2d 655, writ denied, 98-1936 (La.11/6/98), 727 So.2d 449. A psychiatric assessment and explanation of human behavior depends upon the credibility of the patient’s report. In this case, there are many factual issues surrounding George’s reporting to Dr. Vandenberg. Dr. Vandenberg testified that George did not report that he had returned to work after the accident and worked for over eight months until he was fired. Instead, George reported that his wrist injury was his reason for not working. Immediately prior to the hearing on the summary judgment, George was arrested again on charges including possession of a firearm by a convicted felon and possession of a Schedule III illegal drug with intent to distribute. Dr. Vandenberg admitted that he did not specifically ask George about any prior arrest or conviction. When asked by Dr. Vandenberg regarding prior legal problems, George denied such problems. Yet, in his deposition, George admitted his convictions prior to 2008 for manslaughter and domestic abuse violence. Therefore, Dr. Vandenberg’s diagnosis was made without knowledge of those prior traumatic criminal events.

|aFrom this review of George’s underlying reporting to Dr. Vandenberg, we find that there are genuine issues of material fact involving the diagnosis for PTSD. George’s credibility has been sufficiently called into question, rendering summary judgment inappropriate. The high standard for George’s proof for a mental injury under the Act has not been met. Accordingly, the motion for summary judgment in George’s favor is reversed.

Conclusion

The ruling of the WCJ is reversed and the case is remanded for further proceedings. Costs of appeal are assessed to ap-pellee.

REVERSED AND REMANDED.

BROWN, Chief Judge, dissents for reasons expressed in Judge LOLLEY’s original opinion.

LOLLEY, J., dissents for the reasons assigned in the original opinion.

      . Although throughout the record the dates of March 18, 2008, and May 18, 2008, were used interchangeably as the date of the accident, we will use the date of March 18, 2008, as it is the date used on the 1008 claim form.

      . While some discrepancy exists in the pleadings regarding the date of the accident, some pleadings have March 18, 2008 as the date of the accident, the plaintiff specifically accepted the defendant’s date of the accident as an uncontested fact in the summary judgment motion.

      . La. R.S. 23:1204 provides: Neither the furnishing of medical services nor payments by the employer or his insurance carrier shall constitute an admission of liability for compensation under this Chapter.