author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    Leonard KEASLEY v. TRANSIT MANAGEMENT OF SOUTHEAST LOUISIANA.
    No. 2010-CA-0786.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 2010.

      James E. Cazalot, Jr., H. Edward Sherman, APLC, New Orleans, LA, for Plaintiff/Appellant, Leonard Keasley.
    Kiana M. Mitchell, Craig B. Mitchell, Michael S. Rodriguez, Mitchell & Associates, APLC, New Orleans, LA, for Defendant/Appellee, TMSEL.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, and Judge MAX N. TOBIAS, JR.).
   JOAN BERNARD ARMSTRONG, Chief Judge.

LThe plaintiff, Leonard Keasley, appeals the summary judgment granted by the Workers’ Compensation District 8 Hearing Officer on November 6, 2009, dismissing his claim of permanent and total disability.

Mr. Keasley filed a disputed claim for workers’ compensation benefits against his employer, Transit Management of Southeast Louisiana (hereinafter TMSEL), on November 7, 2002, arising from an accident on November 5, 1991 in which Mr. Keasley was hurt when moving a box of copy paper. TMSEL replied to the claim, noting that Mr. Keasley had received 520 weeks of indemnity benefits, constituting all the benefits to which he was entitled, and was capable of working, and asserting the medical expense off set under La. R.S. 23:1212 and credits under La. R.S. 23:1221(3) and La. R.S. 23:1223.

In June of 2007, counsel for TMSEL withdrew, and new counsel was enrolled. Just over a year later, TMSEL moved for summary judgment, contending that its reduction of Mr. Keasley’s temporary total disability (TTD) benefits to ^supplemental earning benefits (SEB) was proper as a matter of law. TMSEL also moved for summary judgment that Mr. Keasley was not permanently and totally disabled. TMSEL contended that it paid Mr. Keas-ley TTD benefits from November 21, 1991 until June 3, 2000, at which time the benefit was reduced to SEB, which benefits Mr. Keasley received until he reached the statutory maximum in November of 2001. TMSEL based its reduction of benefits from TTD to SEB on the opinions of four physicians that Mr. Keasley was able to return to work. In support of its position, TMSEL provided unsworn statements of Roy R. Marrero, M.D. dated January 6, 1991; A.N. Diodene, Jr., M.D. dated July 9, 1993; Wilmot F. Ploger, M.D. dated October 7, 1994; Harry E. Hoerner, M.D. dated August 27, 1996; and Robert L. Mímeles, M.D. dated February 10, 1998 and January 18, 2000. On October 31, 2008, the Hearing Officer denied TMSEL’s motions for summary judgment. The Hearing Officer issued the following written reasons:

The two Summary Judgment Motions were denied. It is necessary to weigh the evidence to reach a decision. That is appropriate at trial and not Summary Judgment.

On August 11, 2009, TMSEL reurged its motion for partial summary judgment as to Mr. Keasley’s claim of permanent and total disability arising from his 1991 injury. TMSEL contended that new evidence discovered during the taking of Mr. Keasley’s deposition cured the deficiencies that existed when the motion was heard the previous year. Following a hearing, the Hearing Officer granted TMSEL’s unopposed motion for partial summary judgment as to Mr. Keasley’s kidney condition, and granted TMSEL’s opposed motion for partial summary judgment as to Mr. Keasley’s claim for permanent and total disability.

| sMr. Keasley prosecutes the instant appeal from the judgment insofar as it grants the motion for partial summary judgment dismissing Mr. Keasley’s claim for permanent and total disability benefits. Mr. Keasley assigns a single error, contending that the opinion of his treating physician, Bernard Manale, M.D., that he was totally and permanently disabled, creates a genuine issue of material fact, precluding summary judgment. For the reasons that follow, we affirm the judgment of the Office of Workers’ Compensation in part, vacate and set aside the judgment in part, and remand for further proceedings consistent with this opinion.

MEDICAL HISTORY

The record contains copies of reports prepared by physicians and other health care providers setting forth Mr. Keasley’s medical history. In July of 1990, Mr. Keasley suffered a moderate to severe lumbar sprain as a result of a non-work-related automobile accident. His physician, Roy Marrero, M.D., restricted him from work from August 6, 1990 until September 13,1990 for this injury.

Following the 1991 work-related injury, Mr. Keasley again saw Dr. Marrero, on November 5, 1991. Dr. Marrero diagnosed a lumbar spine sprain and instructed Mr. Keasley not to return to work. Dr. Marrero again saw Mr. Keasley on January 6, 1992, and determined that he had fully recovered from his lumbar spine sprain and was ready to return to work without residual effects. Mr. Keasley’s subsequent medical history follows this time-line:

1 ¿October 28, 1992: Nearly ten months after having been released to full duty by Dr. Marrero, Mr. Keasley saw Bernard Manale, M.D., of Orleans Orthopaedic Associates (OOA).

June 25, 1993: Orthopedist A.N. Diod-ene examined Mr. Keasley, reviewed his records, and found he was capable of returning to work, but should avoid bending and heavy lifting “for the present time.”

July 12, 1993: Dr. Manale restricted Mr. Keasley from work as a result of the 1991 accident.

September 10, 1993: Mr. Keasley underwent a CT scan of his lumbar spine that revealed the following impressions: (1) Early Type II protrusion of disc material toward the right of the midline at the L4-5 level; and (2) Degenerative change at L3-4 and L5-S1 levels consisting of Type I annular bulge without evidence of herniations.

October 4, 1993: Mr. Keasley was injured in a non-work-related automobile accident in New Orleans. Dr. Manale examined him, took X-rays, and recommended surgery.

December 3, 1993: Mr. Keasley underwent an MRI from The Imaging Center, Inc. that revealed the following impression: “At L3-4 and L4-5, the discs are desiccated compatible with post-traumatic/degenerative disc disease. There is a moderate diffuse annular bulge at both levels, with no evidence of thecal indentation. The lower foraminal fat is slightly [sic] but perineural fat is preserved.”

| sMarch 28, 1994: Mr. Keasley was injured in another non-work-related automobile accident in New Orleans. Mr. Keas-ley filed suit based on the accidents of October 4, 1993 and March 28, 1994. In these suits, he claimed aggravation of his pre-existing back condition.

July 13, 1994: Mr. Keasley completed a Social Security Administration Disability Report seeking disability benefits. On October 21, 1994, the request was denied.

September 12, 1994: Wilmot Ploger, M.D., examined Mr. Keasley and reviewed his medical records in connection with the latter’s application for Social Security Disability (SSD) benefits. At that examination, according to Dr. Ploger’s report dated October 7, 1994, Mr. Keasley said he was injured in a motor vehicle accident in 1991 and had not worked in the past year because of a permanent disability diagnosis from Dr. Manale. Dr. Ploger concluded that Mr. Keasley’s physical examination showed Mr. Keasley’s back was within normal limits and the examination revealed no mechanical dysfunction of the spine or clinical evidence of nerve root irritation. Mr. Keasley’s X-rays were considered normal for a person of his age.

August 27, 1996: Orthopedist Harry Hoerner, M. D., examined Mr. Keasley and reviewed his medical records in connection with the latter’s application for SSD benefits. Once again, according to Dr. Hoerner’s report of even date, Mr. | ^Keasley gave a history of having been involved in an automobile accident. Dr. Hoerner noted that Mr. Keasley told him that he was rear-ended while driving as a courier for the Regional Transit Authority, making deliveries in New Orleans. The report notes that Mr. Keasley told him that he was seen by Dr. Marrero, who took X-rays and prescribed physical therapy. He was then seen and treated by Dr. Manale, who told Mr. Keasley that he had four ruptured discs, and recommended surgery. While Mr. Keasley denied any other injuries or accidents involving his lower back, Dr. Hoerner noted that Dr. Manale’s records reflect that Mr. Keasley reported an automobile accident on March 28, 1994, that did not cause any increased back problems. Dr. Hoerner diagnosed a chronic lumbosacral musculoligamentous strain with degenerative arthritis and degenerative disc disease involving L 1-2, L 4-5, and L5-S1. Dr. Hoerner noted that there was no evidence of nerve root irritation and found inconsistencies with range of motion of Mr. Keasley’s back when he was standing or sitting. Dr. Hoerner concluded that Mr. Keasley was, at that time, capable of at least some type of light to light-medium work where he would have some restrictions, primarily with continuous heavy lifting, long standing, walking, climbing, bending, squatting, stooping, crawling, and kneeling.

December 10, 1996: An SSD hearing was held resulting in a decision on December 13, 1996, granting Mr. Keasley SSD benefits based on Dr. Manale’s 17conclusion that Mr. Keasley became permanently and totally disabled on June 14, 1993.

February, 1998: At TMSEL’s request, Robert L. Mimeles, M.D., examined Mr. Keasley and reviewed his medical history, including a September, 1993, CT scan of the lumbar spine, and a December, 1993, MRI. Dr. Mimeles concluded in his report of February 10, 1998, that Mr. Keasley’s history was not indicative of a long-term back injury, and that he had reached maximum medical improvement. Dr. Mimeles opined:

Dr. Marrero released this gentleman to full duty January 6, 1992, for what he thought was a resolved soft tissue strain. This gentlemen then did not go see Dr. Manale for some ten months. It is my understanding, when talking to this gentleman, that he only worked [sic] for a couple of months after the accident and did not work for the ten months when he was released from Dr. Marrero. He then saw Dr. Manale in October of 1992, then did not see anybody for six more months. This certainly does not sound like any significant back problem to me.... I reviewed the reading of the CT scan which was done in September of 1993, over two years after the accident. This lends itself to some degenerative disc disease at three different levels. There is a bulge to the L4-5 disc. Apparently, Dr. Diodene reviewed this and there is no indication in his reviewing of the CT scan or the radiologist’s reading that there is any compression of any of the neural elements. This is not an unusual reading for somebody 52 years of age who had done heavy work and is somewhat overweight.... I reviewed an MRI performed in December of 1993. There is desiccation degeneration of the L3 and L4 discs with mild bulging but no compression of the neural elements to any extent. This goes along with a CT scan. This gentleman could have long since been back at gainful employment.... He certainly needs no further ongoing care or any other medical treatment.

UNovember 18,1998: Mr. Keasley underwent an MRI from Harold Neitzsch-man, M.D., that revealed the following impressions: (1) A very mild bulge of the annulus at the level of L3^4, L4-5, and L5-S1, with no evidence of focal disc protrusion at any of these levels; and (2) some very slight narrowing of the exit foramen at L3-4 and L4-5.

January 18, 2000: Dr. Mímeles again examined Mr. Keasley, and reviewed an MRI taken in November, 1998. He noted that the MRI showed no herniated discs and that Mr. Keasley’s spine was consistent with what was expected of a 59-year old gentleman with degenerative disc disease and degenerative arthritis. He saw nothing to suggest any significant compressed nerve roots. Dr. Mímeles did not believe Mr. Keasley should go back to work involving much stooping, bending, and lifting. He opined, “His [Mr. Keas-ley’s] auto accident dates back to 1991 and obviously this injury, in my opinion, should have settled down some seven to eight years ago.” He concluded that Mr. Keas-ley could do a light duty job, was “certainly not 100% disabled from ever doing anything,” and could have long since been working at some type of modified job.

March 20, 2000: Orthopedist Warren Bourgeois, III, M.D., received an appointment to perform an independent medical examination of Mr. Keasley pursuant to the provisions of La. R.S. 23:1123. On May 2, 2000, he saw Mr. Keasley and issued a report on May 9, 2000. Dr. Bourgeois concluded that Mr. Keasley had degenerative disc disease and lumbosacral spine arthritis consistent with his age. He opined that his physical examination of Mr. Keasley was “consistent with symptom magnification,” and noted no positive findings for nerve |9root impingement. According to Dr. Bourgeois, Mr. Keasley should be capable of modified light duty with no lifting over ten pounds. By Mr. Keasley’s own history, Dr. Bourgeois concluded that Mr. Keasley was able to sit for up to two hours at a time and “certainly alternating sitting and standing he should be able to accomplish modified light activity for six to eight hours a day.” However, Dr. Bourgeois also opined, “Due to the patient’s age (59) and length of his treatment for his problem, it is unlikely that Mr. Keasley will be able to return to work in any capacity and as such I feel than an FCE would be a waste of time and resources as he will most likely have a skewed evaluation due to symptom magnification.”

December 6, 2000: At TMSEL’s request, Gary Ordes, a vocational rehabilitation counselor on the staff of Corvel Corporation, examined Dr. Bourgeois’ report and performed a Labor Market Survey (LMS) in which he contacted employers with job openings that were within the limitations proposed by Dr. Bourgeois. Mr. Ordes sent the results of his survey to Dr. Bourgeois for his approval, which was granted, and mailed copies of the report to Mr. Keasley and his attorney by certified mail. Mr. Ordes did not verify that Mr. Keasley did or did not contact any of the potential employers identified in the LMS.

January 8, 2001: Mr. Ordes conducted another LMS, certified by Dr. Bourgeois, and mailed the survey to Mr. Keasley and his attorney. Mr. Ordes identified a Job Contact Log completed by Mr. Keasley dated January 23, 2001, indicating that he applied for the jobs indicated on the log. Mr. Ordes also identified a Job Contact Log completed by Mr. Keasley dated February 13, 2001, indicating there were no openings for the jobs. According to Mr. Ordes, he had no | inway of knowing whether or not Mr. Keasley in fact applied for these jobs. Mr. Ordes noted that, since he had not seen Mr. Keasley for more than two years, he had no opinion concerning his current disability status.

January 9, 2002: Mr. Keasley underwent an MRI from The Louisiana Clinic that revealed the following impressions: (1) A mild diffuse (Type I) bulge at L3^1, with a desiccated disc. The disc effaces lower foraminal fat bilaterally; (2) At L4-5, the disc is desiccated and mildly effaces lower foraminal fat; the annulus is mildly prominent (a minimal Type I bulge); and (3) At L5-S1, the disc is desiccated but normal in axial contour (Type 0 change).

March 5, 2002: Dr. Manale saw Mr. Keasley for the last time and did not change his opinion of July 12, 1993 that Mr. Keasley was totally disabled.

July 31, 2003: Mr. Keasley saw Kenneth Adatto, M.D., Dr. Manale’s associate at OOA, on July 28, 2003. Dr. Adatto noted in his report of July 31, 2003, that Mr. Keasley has a total and permanent disability, reflected in an anatomical ten to fifteen percent disability of the lumbar spine. He noted that Mr. Keasley “needs to avoid prolonged sitting or standing in the same position for 45 minutes, plus/minus 15 minutes without being able to move around and change position. The disability and restrictions are the same with or without surgery.” He defined Mr. Keasley’s disability status as “total permanent spinal disability,” and instructed him to return in three months.

August 13, 2003: A physician examined Mr. Keasley to determine his ability to perform his duties with the Catholic Charities Foster Grandparent | n Program. According to the report of this examination found in the record, Mr. Keasley indicated that his last physical examination was in that year, 2003, when he was hospitalized for heart pain. He checked the form, claiming the following ailments: back injury, high blood pressure, and heart disease, and explained that he had physical limitations to the lower part of his back, which he attributed to a 1996 accident at work. The examining physician concluded that Mr. Keasley was medically able to participate in the activities of the program.

February 5, 2004: Dr. Adatto electronically signed a report of his examination of Mr. Keasley, noting a ten to fifteen percent permanent impairment of Mr. Keas-ley’s lumbar spine. This same notation was made following examinations on May 4, 2004; August 3, 2004; November 8, 2004; January 6, 2005; and March 3, 2005. While noting an anatomical impairment of ten to fifteen percent of the lumbar spine, these subsequent reports do not seem to contradict Dr. Adatto’s initial finding of total and permanent disability in July of 2003.

April 28, 2005 and July 28, 2005: Dr. Adatto assigned to Mr. Keasley the following working/impairment status: “ACTIVITY/FUNCTIONAL LIMITATIONS: The patient needs to avoid repetitive stooping or bending, repetitive lifting of objects over 10-20 pounds as well as prolonged sitting or standing in the same position for 45 minutes, plus/minus 15 minutes without being able to move around and change position. These restrictions are the same with or without surgery. KNEE: Avoid repetitive or prolonged standing, walking, squatting, crawling, kneeling or walking on uneven surfaces. PERMANENT ANATOMICAL IMPAIRMENT: 10-15% OF THE LUMBAR SPINE.”

| ^October 31, 2005: Following his relocation to Lafayette, Louisiana following the failure of the New Orleans area’s federal flood walls and levees two months earlier, Mr. Keasley saw Dr. John Cobb of the Louisiana Bone and Joint Clinic in Lafayette. On Mr. Keasley’s complaint of back pain and radiating pain down his left leg into his foot, Dr. Cobb made a diagnosis of multiple level degenerative disc disease, disc related problems of the lumbar spine, and intermittent radiculitis. Mr. Keasley missed the next four appointments with Dr. Cobb.

April 22, 2009: Mr. Keasley returned to Dr. Cobb, stating that he had not been treated for his lower back issues since October of 2005, and had retired from employment. Dr. Cobb recommended and TMSEL authorized another MRI.

In addition to Mr. Keasley’s back problems, he testified at his July 25, 2009 deposition that he is under treatment for kidney problem unrelated to his employment with TMSEL. The treatment includes monthly visits to Dr. Ashkey Gupta and kidney dialysis three times each week. He also testified to having received treatment at University Medical Center for a congenital abnormal heartbeat. Mr. Keasley testified that only his back condition is related to his 1991 on-the-job injury.

WORK HISTORY POST-ACCIDENT

In Answers to Interrogatories served on March 14, 2008, Mr. Keasley described his employment outside the Regional Transit Authority since his work-related injury in 1991 as follows:

|1¾... [F]or approximately 12 months or so, the claimant did some charity work for the Urban League Street Academy (through the Catholic Charities Association) where he received sort of a per diem payment. He was allowed to come and go as he desired. There was no penalty for not showing up. While there he checked in with the principal of the school.... The hours that he tried to go were from 9:00[sic] a.m. to l:00[sic] p.m. He received a per diem payment of $2.50 an hour or $10.00. No taxes were taken out. While there he talked to children with social problems. Around 2003 or 2002 he assisted at Family Helpers, an organization for handicapped children. Again he received a small payment that he believes was similar to the payment by the Catholic Charities. Basically a child would stay at his house some afternoons.

At his 2008 deposition, Mr. Keasley testified that he helped out at the Urban League Street Academy, near the St. Bernard housing development, when he was living in New Orleans. He was not able to specify the dates he worked, but thought it was in either 2003 or 2004 and part of 2005. He testified that he did not have any expenses in connection with his work. Mr. Keasley’s work consisted of sitting with a four-year old child while he did his school work. He worked from eight in the morning until noon, during the regular school term. He testified that he was paid $3.20 or $3.25 per hour for his services, which he corrected later in his testimony to $2.50 per hour.

Mr. Keasley testified that he also worked for the Family Helpers organization in New Orleans East for about six months. In that connection, he baby-sat a mentally handicapped child at the Keasley home. Mr. Keasley testified that he was paid for his services by check from the organization and by the child’s mother. He took care of the child for about two hours in the afternoon during the school year, and he was paid based on the number of hours the child stayed at Mr. 114Keasley’s home. He verified earnings of $3,504.04 in 2003 and $2,592.55 in 2004. He also testified that he worked for Holy Family School in Lafayette for about four or five months in 2006, with duties and hours similar to his job with the Urban League Street Academy in New Orleans. He stopped working because of continuing problems with his back. He earned something more than two dollars per hour, and was allowed to work at most four hours per day. Mr. Keasley testified that he was compensated for his time and services.

Mr. Keasley’s Federal Income Tax Return Form 1040A for 2003 and its attached Form W-2 shows wage income for that year in the amount of $3,504. His Federal Income Tax Return Form 1040EZ for 2004 and its attached Form W-2 show wage income for that year in the amounts of $2,594 and $2,593.55, respectively. During the course of Mr. Keasley’s July 21, 2009 deposition, he admitted that in 2006, during his relocation to Lafayette, he worked for Catholic Charities at Holy Family School, providing the same services he performed for Catholic Charities in New Orleans. He was compensated for his time and services, but not for his expenses. He testified that he depended on this compensation to supplement his pension and disability income. Mr. Keasley provided no verified evidence to controvert this record of his post-injury work and compensation.

It is clear that Mr. Keasley’s benefits were terminated in November of 2001, at which point Dr. Manale had opined he was unable to work because of his work-related back injury. The issue on TMSEL’s motion for summary judgment is whether and when Mr. Keasley’s employment for the various charities disqualified |1ñhim from receiving total disability benefits. There is no evidence that Mr. Keasley will be unable to prove by clear and convincing evidence that he was totally disabled, as that phrase is understood in the applicable statute, from November, 2001, until he began his compensated work for the charities. The Internal Revenue forms demonstrate that Mr. Keasley worked for wages in 2003 and 2004. Because the forms do not specify the dates of Mr. Keasley’s employment, we refer to the personnel files offered by TMSEL and made part of the record. Mr. Keasley’s applied to participate in the Foster Grandparent Program on July 10, 2003, and was examined by a physician on August 15, 2003 as part of his application. The file also contains letters of personal recommendation dated July 21, 2003, August 19, 2003, and July 10, 2003. Mr. Keasley’s Health Education Department orientation is dated August 14, 2003, and his file contains a receipt showing that he received his Foster Grandparent Program handbook on August 12, 2003. This record is inconclusive as to the exact day on which he began to work for wages in 2003. Mr. Keasley testified that he evacuated to Lafayette in the aftermath of the August, 2005 levee and floodwall failures in New Orleans, from which we infer that he may be able at trial to prove by clear and convincing evidence that he did not work for wages from sometime in August of 2005 until sometime late in 2006.

Shanese L. Lewis, director of the Lafayette program, by letter dated September 2, 2009, advised TMSEL’s counsel that Mr. Keasley was “enrolled as a volunteer from September 25, 2006 through May 29, 2007.” His Assignment Plan, indicating what his duties were to be, is dated October 25, 2006. His 2006-2007 Leave Record indicates that he earned eight hours of leave in October, and November of 2006, and in January of 2007. Time sheets show that he was paid |lf,$42.40 plus mileage of $11.52 from July 17, 2006 to July 21, 2006, prior to his enrollment. The time sheets record that he worked on September 25 and 26, 2006, and from October 2, 2006 through February 27, 2007 The termination notice, dated May 29, 2007 indicates that he was terminated in compliance with a policy that stipulates that an absence of thirty or more days means that the program could not retain a position for him. The file also contains Dr. Gupta’s letter dated April 17, 2007, indicating that Mr. Keasley was then able to return to participate in the program on May 7, 2007.

There is no indication as to the exact date when Mr. Keasley began to work for wajfes in Lafayette, or the exact date when he last worked. Since he was paid only for those hours when he actually performed services for the program, under the facts of record, there are genuine issues as to when Mr. Keasley began and stopped working for wages in the Lafayette program.

While we have reviewed the reports of Doctors Marrero, Diodene, Ploger, Hoer-ner, Mímeles, and Bourgeois that were admitted into evidence without objection, we have not considered those unverified statements mentioned in TMSEL’s PreTrial Statement that are purportedly supported by exhibits that are not a part of the record, except insofar as the medical testing referred to therein is mentioned in the aforesaid medical reports.

Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 230-31. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions such as this. The procedure is favored and shall be construed to accomplish these ends. La.Code 117Civ. Proc. art. 966 A. (2). A summary judgment shall be rendered forthwith 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.Code Civ. Proc. art. 966 B. The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mov-ant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Id.; La.Code Civ. Proc. art. 966 C. (2).

An adverse party to a supported motion for summary judgment may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue of matezial fact for trial. La.Code Civ. Proc. art. 967; Townley v. City of Iowa, 97-493, p. 5 (La.App. 3 Cir. 10/29/97), 702 So.2d 323, 326.

The amended article 966 substantially changed the law of summary judgment. Under the prior jurisprudence, summary judgment was not favored and was to be used only cautiously and sparingly. Under the amended statute, the initial burden of proof remains with the mover to show that no genuine issue of material fact exists. However, under La. Code Civ. Proc. art. 966 C., once the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that Immaterial factual issues remain. Once the mover has properly supported the motion for summary judgment, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion.

Argument of counsel and briefs, no matter how artful, are not sufficient to raise a genuine issue of material fact. La. Code Civ. Proc. art. 967; Cox Cable New Orleans, Inc. v. City of New Orleans, 94-2102, p. 4 (La.App. 4 Cir. 11/16/95), 664 So.2d 742, 744. Despite the presence of disputed facts, summary judgment will be granted as a matter of law if the contested facts present no legal issues. Davenport v. Amax Nickel, Inc., 569 So.2d 23, 27 (La.App. 4 Cir.1990).

A fact is material if it is essential to a plaintiffs cause of action under the applicable theory of recovery and without which plaintiff could not prevail. Generally, material facts are those that potentially insure or preclude recovery, affect the litigant’s ultimate success, or determine the outcome of a legal dispute. Prado v. Sloman Neptun Schiffahrts, A.G., 611 So.2d 691, 699 (La.App. 4th Cir.1992).

Mr. Keasle/s claim to total and permanent disability is governed by La. R.S. 23:1221, which provides in relevant part:

Compensation shall be paid under this Chapter in accordance with the following schedule of payments:
⅜ * ⅜
(2) Permanent total.
(a) For any injury producing permanent total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds percent 119of wages during the period of such disability. [Emphasis supplied.]
(b) For purposes of Subparagraph (2)(a) of this Paragraph, compensation for permanent total disability shall not be awarded if the employee is engaged in any employment or self-employment regardless of the nature or character of the employment or self-employment including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain. [Emphasis supplied.]

H. Alston Johnson, III, in the Louisiana Civil Law Treatise series, notes:

There is no question but that this language was intended to make awards for total and permanent disability very difficult to obtain, and indeed almost nonexistent. Any injured worker who returns to work in any capacity and in whatever degree of pain will probably not be totally and permanently disabled.

13 La. Civ. L. Treatise, Workers’ Compensation Bate and Practice § 275 (4th ed.).

The statute also sets forth the relevant burden of proof:

(c) For purposes of Subparagraph (2)(a) of this Paragraph, ... compensation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain,....

Thus, Mr. Keasley would bear the burden at trial of proving, by clear and convincing evidence, that he is unable to engage in any employment of any nature. See Buxton v. Iowa Police Dep’t, 09-0520, p. 21 (La.10/20/09), 23 So.3d 275, 288-89; DeGrasse v. Elevating Boats, Inc., 98-1406, pp. 5-6 (La.App. 4 Cir. 3/10/99), 740 So.2d 660, 663-64.

One of the primary goals of the Louisiana Workers’ Compensation Act is to provide protection to workers and to keep the injured employee and his or her lanfamily from destitution. In light of the policies behind the Act, the Louisiana Supreme Court has adopted special rules for interpreting its provisions such that to effectuate the remedial policy of the Act, its provisions should construed liberally in favor of the compensation claimant. Breaux v. Hoffpauir, 95-2933, p. 4 (La.5/21/96), 674 So.2d 234, 237, citing Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52, 55 (La.1993).

As this Court noted in Zanca v. Exhibition Contractors Co., 614 So.2d 325, 328 (La.App. 4th Cir.1993), concerning a claim for temporary total disability:

Although this Court recognizes that compensation cases are to be liberally construed in favor of the employee, we are also mindful of the fact that the burden for establishing entitlement to temporary total benefits rests on the plaintiff. By amending the provisions of La. R.S. 23:1221(l)(c) to specifically state [sic] that benefits can be awarded only if the employee proves that he cannot engage in any employment, regardless of the nature and regardless of whether such employment can be performed while working in any pain, the Legislature has effectively eliminated all but the most disabled employees from receiving temporary total disability benefits. While the wisdom or fairness of the amending legislation may be questioned, this Court is bound to apply the law as enacted by the Legislature.

Based on the record presented to the trial court in connection with TMSEL’s motion for summary judgment, it is clear that Mr. Keasley will not be able to bear the statutory burden of proof as to parts of the years 2003 and 2004, 2006, and 2007, where the evidence is uncontroverted that he worked for wages. The very strict legislative pronouncement contained in La. R.S. 23:1221 compels us to conclude that Mr. Keasley’s efforts to supplement his pension and disability income with the minimal earnings he received during those years precludes his qualifying for permanent total disability during that period. However, it is equally |2i clear that on the record before us, including the various medical reports, there are genuine issues of material facts as to Mr. Keasley’s disability status before he re-entered employment for wages in 2003 and after he left such employment in 2007, and to the exact time periods in the interim during which he was ineligible for total disability benefits. Therefore, we affirm the trial court’s judgment insofar as it grants summary judgment for the period when it is uncon-troverted that Mr. Keasley worked for wages, and remand the case for further proceedings consistent with this opinion.

AFFIRMED IN PART, VACATED AND SET ASIDE IN PART, AND REMANDED.

      . The Hearing Officer also granted an unopposed Motion for Partial Summary Judgment relative to Mr. Keasley's alleged kidney condition. That portion of the judgment of November 6, 2009 is not at issue in this appeal.

      . The medical histories given by Mr. Keasley to his doctors variously describe his injury as having occurred when he was moving a box of copy paper, and when the car he was driving on a work-related errand was rear-ended.

      . The medical reports contained in the record are not certified by affidavit; however, the following reports were admitted without objection at the hearing: January 6, 1992 from Roy R. Marrero, M.D.; July 9, 1993 from A.N. Diodene, Jr., M.D.; October 7, 1994 from Wilmot F. Ploger, M.D.; August 27, 1996 from Harry E. Hoerner, M.D.; February 10, 1998 and January 18, 2000 from Robert L. Mimeles, M.D.; May 9, 2000 from Warren R. Bourgeois, III, M.D.; Job Analyses dated January 8, 2001, signed by Dr. Bourgeois with copies of certified transmittal letters from Gary J. Ordes, LRC, CRC, MHS to Mr. Keas-ley and his counsel, and to Dr. Bourgeois.

      . This information appears in the record only as part of TMSEL’s Pre-Trial Statement and is not verified. The statement refers to Exhibit 14, which does not appear in the appellate record.

      . See footnote 4, supra.

      . This information appears in the record only as part of TMSEL’s Pre-Trial Statement and is not verified. The statement refers to Exhibit 23, which does not appear in the appellate record.

      . This information appears in the record only as a part of TMSEL’s Pre-Trial Statement. It is not verified and refers to Exhibit 24, which does not appear in the appellate record.

      .In his March 27, 2003 deposition, taken in connection with this workers' compensation claim, Mr. Keasley was asked if he had been involved in any accidents subsequent to the 1991 work-related injury. He disclosed the October 4, 1993 injury and denied that it aggravated his back injury, noting that the case was settled. Mr. Keasley on deposition did not disclose the March 28, 1994 accident. In his 2008 deposition, he denies any injuries subsequent to the 1991 accident.

      . The record contains a statement from the Social Security Administration (SSA) dated February 11, 2003, indicating that, beginning in December of 2002, Mr. Keasley's full monthly SSD benefit was $879.10, subject to a $58.70 deduction for medical insurance premiums. The record contains a letter from the SSA dated June 8, 2005, increasing his benefit to $921.70, subject to a $78.20 deduction for medical insurance premiums. The record contains a copy of a letter from the SSA dated November 3, 2006, advising Mr. Keasley that his benefit was increased to $939, effective May 2006.

      . This information appears in the record only as a part of TMSEL’s Pre-Trial Statement. It refers to Exhibit 25 which does not appear in the appellate record.

      . Mr. Ordes testified by deposition taken on August 5, 2003, a copy of which was submitted in support of TMSEL's motion for partial summary judgment.

      . This information is unverified, and appears in the record only as part of TMSEL's PreTrial Statement. The underlying MRI report is identified as "Exhibit 26”, but is not made a part of the record.

      .The physician’s signature on the Volunteer Medical Examination form, dated august 15, 2003, is illegible. It appears to be T.G. Ood-erly, M.D.

      . We note that his only work-related accident took place in 1991.

      . This information is unverified and is found only in TMSEL's Pre-Trial Statement. It refers to Exhibits 4-C and 30, which are not part of the appellate record. In his answers to interrogatories filed in 2008, Mr. Keasley noted that he saw Dr. Cobb in 2006 and 2007.

      .This information is unverified and is found only in TMSEL’s Pre-Trial Statement. It refers to Exhibits 30 and 31, which are not part of the appellate record.

      . At the deposition, Mr. Keasley specifically corrected his answer to interrogatory in which he had said he worked from nine until noon.

      . The record contains a copy of Internal Revenue Service Form 13873-1 indicating that the agency was unable to provide tax information for 1999, 2000, 2001, 2002, 2005, and 2006, and could find no record of a return having been filed for those years.

      . The statute provides the same standard for total disability in the case of both temporary and total disability claims,


source: Caselaw Access Project

author: SAUNDERS, Judge. GREMILLION,

license: Public Domain

text:
    THOMAS MEDICAL GROUP, APMC (Eric Brewton) v. STINE, LLC, et al.
    No. 10-593.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.

      Roger Anthony Javier, The Javier Law Firm, New Orleans, LA, for Defendant/Appellant, Zurich American Ins. Co. Stine, LLC.

      Richard Bray Williams, Williams Family Law Firm, LLC, Natchitoches, LA, for Plaintiff/Appellee, Thomas Medical Group, APMC (Eric Brewton).
    Court composed of JOHN D. SAUNDERS, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   SAUNDERS, Judge.

_JjThis appeal involves a dispute between a health care provider and an employer, its insurer, and a third party administrator. The insurer’s third party administrator and the health care provider were both parties to preferred provider agreements (PPO) with First Health Group Corp (First Health). Despite the existence of this PPO agreement, the health care provider, plaintiff/appellee Thomas Medical Group, APMC (Thomas), which agreed to accept 90% of the statutory reimbursement schedule established in the Louisiana Workers’ Compensation Act, filed a disputed claim for compensation with the Office of Worker’s Compensation by which it sought — and was awarded — the alleged underpayment amount of $51.66 plus a penalty of $2,000.00 and attorney fees of $4,500.00 against the employer, defendant/appellant Stine, LLC (Stine), and its insurer, defendant/appellant Zurich American Insurance Company (Zurich). Stine and Zurich appealed the judgment. Thomas answered the appeal, asserting that because there were two bills that were discounted improperly, it was entitled to two awards of penalties. Thomas also seeks additional attorney fees for defending the judgment on appeal. For the reasons that follow, we affirm the workers’ compensation judge’s (WCJ) judgment.

FACTS

In January 2002, Gallagher Bassett Services, Inc. (Gallagher Bassett), entered into a contract with First Health allowing Gallagher Bassett access to First Health’s preferred provider network. In July 2005, Dr. James Knecht, a Natchitoches, Louisiana, physician, contracted with First Health to become a member of First Health’s preferred provider network. Dr. Knecht was asked to complete a ^questionnaire that specifically queried his workers’ compensation practice as part of this enrollment. In November 2006, Gallagher Bassett entered into a Third Party Administrator Agreement with Zurich, whereby Gallagher Bassett agreed to administer certain workers’ compensation claims for Zurich. Zurich provided workers’ compensation insurance to Stine.

Dr. Knecht is a general practitioner in Natchitoches who accepts workers’ compensation cases only on referrals from employers. He employs Acadiana Computer Services to perform his billing. He and his staff were not aware that Stine’s employee, Mr. McDavid, was being seen pursuant to the PPO agreement until an Explanation of Benefits (EOB) was received by his office. His staff alerted him to the fact that First Health had taken a further PPO reduction from the statutory reimbursement schedule that fixes the maximum amount a health care provider can be reimbursed. Thomas then initiated this litigation.

The WCJ heard this matter and, for oral reasons handed down in another matter, found that Stine and Thomas had not negotiated over the application of the PPO agreement to the treatment of workers’ compensation patients, and that PPO arrangements simply are not compatible with the statutory workers’ compensation scheme. Therefore, the WCJ rendered judgment in favor of Thomas.

ASSIGNMENTS OF ERROR

Stine and Zurich assign as error:

(1) The WCJ’s ruling that the PPO contracts are not authorized by the Workers’ Compensation Act;
(2) The WCJ’s ruling that PPO agreements must be specifically authorized by statute to have effect;
|s(3) The WCJ’s ruling that they were arbitrary and capricious in reducing payments to Thomas, thus subjecting them to penalties and attorney fees; and,
(4) The WCJ’s assessment of penalties and attorney fees.

Thomas assigns as error the WCJ’s ruling admitting evidence of the relationship between First Health and a company known as Concentra, Inc., and FOCUS Health Care Management, Inc. Thomas also assigns a error the ruling that Stine and Zurich were only liable for a single penalty, as it contends each failure to properly reimburse constitutes a separate violation of the Workers’ Compensation Act.

ANALYSIS

This Court has wrestled with this issue for the past several months. See Agilus Health (Allison Taylor) v. Accor Lodging N. Am., 09-1049 (La.App. 3 Cir. 3/10/10), 32 So.3d 1120, writ granted, 10-800 (La.6/18/10), 38 So.3d 312, and Central La. Ambulatory Surgical Ctr., Inc. v. Payless Shoesource, Inc., 10-86 (La.App. 3 Cir. 7/28/10), 46 So.3d 689, on rehearing, (La.App. 3 Cir. 10/20/10), 46 So.3d 689. We disagree with the WCJ that this matter hinges upon whether a PPO agreement runs afoul of the Workers’ Compensation Act. Assuming that a PPO agreement is valid, the defendants were not entitled to take any discount on the workers’ compensation reimbursement schedule. The dictates of La.R.S. 40:2203.1, which requires advanced notice to the health care provider either in the form of a benefit card that identifies the PPO or other written notice by the PPO to the provider at least 30 days in advance of services, were not followed. See Touro Infirmary v. Am. Maritime Officer, 09-697 (La.App. 4 Cir. 11/9/09), 24 So.3d 948, and Gunderson v. F.A. Richard & Assocs., Inc., 09-1498 (La.App. 3 Cir. 6/2/10), 40 So.3d 418. Under the plain terms of section 2203.1, unless this notice is provided, “[a] preferred provider organization’s alternative rates of payment shall not be enforceable or binding.” La.R.S. 40:2203.1(B).

Clearly, the lack of notice to Thomas that Mr. McDavid’s treatment would be provided under the auspices of the PPO precludes enforcement of those discounts. These notice provisions are statutorily mandated. They are clear and unambiguous. Gunderson, 40 So.3d 418. The imposition of penalties by the WCJ is subject to review under the manifest error standard. Wilczewski v. Brookshire Grocery Store, 08-718 (La.App. 3 Cir. 1/28/09), 2 So.3d 1214, writ denied, 09-456 (La.4/13/09), 5 So.3d 170. We find that the record reasonably supports the imposition of penalties under La.R.S. 23:1201(F)(4), which reads:

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.

Because the notice provisions were not followed, the WCJ’s imposition of penalties was not manifestly erroneous. See Central La. Amb. Surg. Ctr., Inc., 10-86 (La.App. 3 Cir. 10/20/10), 46 So.3d 689 (On rehearing).

We disagree with Thomas that each failure to reimburse at the proper rate constitutes a separate violation for purposes of imposing penalties. Whether multiple violations occur is a determination subject to review under the manifest error standard. Wyble v. Acadiana Prep. Sch., 07-91 (La.App. 3 Cir. 5/2/07), 956 So.2d 722, writ denied, 07-1178 (La.9/14/07), 963 So.2d 1004. Our supreme court has directed us to “ferret out” these situations. See Fontenot v. Reddell Vidrine Water District, 02-439, p. 18 (La.1/14/03), 836 So.2d 14, 27. We have done so in cases such as Ducote v. Louisiana Industries, Inc., 07-1536 (La.App. 3 Cir. 4/2/08), 980 So.2d 843, and Burnett v. Villiage of Estherwood, 09-680 (La.App. 3 Cir. 12/9/09), 25 So.3d 997.

In this case, the WCJ found, as fact, that it was a good-faith, single error made by the benefits providers, i.e. that they could pay the negotiated lower prices for health care services, that led to multiple bills being underpaid. Given these circumstances, we cannot say that the WCJ erred in awarding a single penalty to Thomas. Thus, we find the record reasonably supports the imposition of a single penalty.

The WCJ awarded Thomas $4,500.00 in attorney fees. Louisiana Revised Statute 23:1201(F)(4) allows a health care provider to collect an attorney fee based on the actual hours worked. “The [WCJ] has great discretion in the award of attorney’s fees and will not be disturbed absent manifest error.” Dietz v. Guichard Drilling Co., 626 So.2d 79, 83 (La.App. 3 Cir.1993).

In the case before us, Thomas’s attorney submitted an affidavit attesting that as of October 19, 2009, he had worked 2.2 hours on the case. Since October 19, 2009, Thomas’ attorney has also prepared this case for trial and tried this case, along with three others on these issues, in a trial that lasted an entire day. Given the great discretion affording the WCJ on this issue, we find no error in its award.

Thomas also seeks additional attorney fees for work on appeal. The award of additional attorney fees is warranted when the claimant successfully defends its judgment. See Central La. Ambulatory Surgical Ctr., Inc., 10-86 (La.App. 3 Cir. 10/20/10), 46 So.3d 689 (On rehearing). “Generally, when an award for attorney’s [ fees is granted [by the WCJ], additional attorney’s fees are proper for work done on appeal [so as] to keep the appellate judgment consistent with the underlying judgment.” Wilczewski, 2 So.3d at 1226. Accordingly, we award Thomas an additional $1,500.00 in attorney’s fees for work done on appeal.

Thomas assigned an error in the admission of certain documents. We consider this assignment of error moot.

CONCLUSION

The issue of the validity of a PPO agreement to a workers’ compensation case need not be addressed, because even if such an agreement were valid, the notice required be given to the health care provider was not effected. Therefore, the PPO was not allowed to discount the reimbursement below the workers’ compensation reimbursement schedule. The judgment of the Workers’ Compensation Judge awarding Thomas $51.66 is affirmed. Likewise, the notice provisions of the PPO laws are clear and unambiguous. The failure to follow these dictates, yet to still attempt to discount the health care provider’s reimbursement, warrants the imposition of penalties. The single penalty of $2,000.00 is affirmed. Moreover, the award of $4,500.00 in attorney fees is affirmed given the great discretion afforded the WCJ. Finally, Thomas is awarded additional attorney’s fees for this appeal of $1,500.00.

AFFIRMED.

GREMILLION, J., concurs in parts and dissents in part and assigns written reasons.

GREMILLION,

Judge, concurs in part and dissents in part.

hi find that the attorney fees awarded by the WCJ are too high and should be reduced. Thus, I dissent on this issue for the same reasons I assigned in my dissent in Central La. Amabulatory Surgical Crt., Inc., 10-86 (La.App. 3 Cir. 10/20/10), 46 So.3d 689 (On rehearing). In all other respects I concur with the majority.

      . Dr. Knecht and Dr. Joseph A. Thomas formed the Thomas Medical Group, a corporation operating under Subchapter S. Three years later, Dr. Thomas died. Dr. Knecht is the sole physician member of the Thomas Medical Group.

      . The last exhibit of which Thomas complains consists of documents reflecting the terms of the settlement a class action suit, Gunderson v. F.A. Richard & Assocs., Inc., docket 2004-2417 of the 14th Judicial District Court, Cal-casieu Parish, Louisiana. The suit was settled releasing the "affiliates,” which included entities related to FOCUS and Concentra.


author:
SAUNDERS, Judge.
      GREMILLION, Judge,

text:
    THOMAS MEDICAL GROUP, APMC (Emil Mallaun), v. STINE, LLC.
    No. 10-580.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.

      Roger Anthony Javier, The Javier Law Firm, Orleans, LA, for Defendants/Appellants, Zurich American Ins. Co. Stine, LLC.
    Richard Bray Williams, Williams Family Law Firm, LLC, Natchitoches, LA, for Plaintiffi'Appellee, Thomas Medical Group, APMC (Emil Mallain).
    Court composed of JOHN D. SAUNDERS, J„ DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   SAUNDERS, Judge.

11 This appeal involves a dispute between a health care provider and an employer, its insurer, and a third party administrator. The insurer’s third party administrator and the health care provider were both parties to preferred provider agreements (PPO) with First Health Group Corp (First Health). Despite the existence of this PPO agreement, the health care provider, plaintiff/appellee Thomas Medical Group, APMC (Thomas), which agreed to accept 90% of the statutory reimbursement schedule established in the Louisiana Workers’ Compensation Act, filed a disputed claim for compensation with the Office of Worker’s Compensation by which it sought — and was awarded — the alleged underpayment amount of $51.66 plus a penalty of $2,000.00 and attorney fees of $4,500.00 against the employer, defendant/appellant Stine, LLC (Stine), and its insurer, defendant/appellant Zurich American Insurance Company (Zurich). Stine and Zurich appealed the judgment. Thomas answered the appeal, asserting that because there were two bills that were discounted improperly, it was entitled to two awards of penalties. Thomas also seeks additional attorney fees for defending the judgment on appeal. For the reasons that follow, we affirm the workers’ compensation judge’s (WCJ) judgment.

FACTS

In January 2002, Gallagher Bassett Services, Inc. (Gallagher Bassett), entered into a contract with First Health allowing Gallagher Bassett access to First Health’s preferred provider network. In July 2005, Dr. James Knecht, a Natchitoches, Louisiana, physician, contracted with First Health to become a member of First Health’s preferred provider network. Dr. Knecht was asked to complete a ^questionnaire that specifically queried his workers’ compensation practice as part of this enrollment. In November 2006, Gallagher Bassett entered into a Third Party Administrator Agreement with Zurich, whereby Gallagher Bassett agreed to administer certain workers’ compensation claims for Zurich. Zurich provided workers’ compensation insurance to Stine.

Dr. Knecht is a general practitioner in Natchitoches who accepts workers’ compensation cases only on referrals from employers. He employs Acadiana Computer Services to perform his billing. He and his staff were not aware that Stine’s employee, Mr. McDavid, was being seen pursuant to the PPO agreement until an Explanation of Benefits (EOB) was received by his office. His staff alerted him to the fact that First Health had taken a further PPO reduction from the statutory reimbursement schedule that fixes the maximum amount a health care provider can be reimbursed. Thomas then initiated this litigation.

The WCJ heard this matter and, for oral reasons handed down in another matter, found that Stine and Thomas had not negotiated over the application of the PPO agreement to the treatment of workers’ compensation patients, and that PPO arrangements simply are not compatible with the statutory workers’ compensation scheme. Therefore, the WCJ rendered judgment in favor of Thomas.

ASSIGNMENTS OF ERROR

Stine and Zurich assign as error:

(1) The WCJ’s ruling that the PPO contracts are not authorized by the Workers’ Compensation Act;

(2) The WCJ’s ruling that PPO agreements must be specifically authorized by statute to have effect;

la(3) The WCJ’s ruling that they were arbitrary and capricious in reducing payments to Thomas, thus subjecting them to penalties and attorney fees; and,

(4) The WCJ’s assessment of penalties and attorney fees.

Thomas assigns as error the WCJ’s ruling admitting evidence of the relationship between First Health and a company known as Concentra, Inc., and FOCUS Health Care Management, Inc. Thomas also assigns a error the ruling that Stine and Zurich were only liable for a single penalty, as it contends each failure to properly reimburse constitutes a separate violation of the Workers’ Compensation Act.

ANALYSIS

This Court has wrestled with this issue for the past several months. See Agilus Health (Allison Taylor) v. Accor Lodging N. Am., 09-1049 (La.App. 3 Cir. 3/10/10), 32 So.3d 1120, writ granted, 10-800 (La.6/18/10), 38 So.3d 312, and Central La. Ambulatory Surgical Ctr., Inc. v. Payless Shoesource, Inc., 10-86 (La.App. 3 Cir. 7/28/10), 46 So.3d 689, on rehearing, (La.App. 3 Cir. 10/20/10), 46 So.3d 689. We disagree with the WCJ that this matter hinges upon whether a PPO agreement runs afoul of the Workers’ Compensation Act. Assuming that a PPO agreement is valid, the defendants were not entitled to take any discount on the workers’ compensation reimbursement schedule. The dictates of La.R.S. 40:2203.1, which requires advanced notice to the health care provider either in the form of a benefit card that identifies the PPO or other written notice by the PPO to the provider at least 30 days in advance of services, were not followed. See Touro Infirmary v. Am. Maritime Officer, 09-697 (La.App. 4 Cir. 11/9/09), 24 So.3d 948, and Gunderson v. F.A. Richard & Assocs., Inc., 09-1498 (La.App. 3 Cir. 6/2/10), 40 So.3d 418. Under the plain terms of section 2203.1, unless this notice is provided, “[a] preferred provider organization’s alternative rates of payment shall not be enforceable or binding.” La.R.S. 40:2203.1(B).

Clearly, the lack of notice to Thomas that Mr. McDavid’s treatment would be provided under the auspices of the PPO precludes enforcement of those discounts. These notice provisions are statutorily mandated. They are clear and unambiguous. Gunderson, 40 So.3d 418. The imposition of penalties by the WCJ is subject to review under the manifest error standard. Wilczewski v. Brookshire Grocery Store, 08-718 (La.App. 3 Cir. 1/28/09), 2 So.3d 1214, writ denied, 09-456 (La.4/13/09), 5 So.3d 170. We find that the record reasonably supports the imposition of penalties under La.R.S. 23:1201(F)(4), which reads:

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.

Because the notice provisions were not followed, the WCJ’s imposition of penalties was not manifestly erroneous. See Central La. Amb. Surg. Ctr., Inc., 10-86 (La.App. 3 Cir. 10/20/10), 46 So.3d 689 (On rehearing).

We disagree with Thomas that each failure to reimburse at the proper rate constitutes a separate violation for purposes of imposing penalties. Whether multiple violations occur is a determination subject to review under the manifest error standard. Wyble v. Acadiana Prep. Sch., 07-91 (La.App. 3 Cir. 5/2/07), 956 So.2d 722, writ denied, 07-1178 (La.9/14/07), 963 So.2d 1004. Our supreme court has directed us to “ferret out” these situations. See Fontenot v. Reddell Vidrine Water District, 02-439, p. 18 (La.1/14/03), 836 So.2d 14, 27. We have done so in cases such as Ducote v. Louisiana Industries, Inc., 07-1536 (La.App. 3 Cir. 4/2/08), 980 So.2d 843, and Burnett v. Village of Estherwood, 09-680 (La.App. 3 Cir. 12/9/09), 25 So.3d 997.

In this case, the WCJ found, as fact, that it was a good-faith, single error made by the benefits providers, i.e. that they could pay the negotiated lower prices for health care services, that led to multiple bills being underpaid. Given these circumstances, we cannot say that the WCJ erred in awarding a single penalty to Thomas. Thus, we find the record reasonably supports the imposition of a single penalty.

The WCJ awarded Thomas $4,500.00 in attorney fees. Louisiana Revised Statute 23:1201(F)(4) allows a health care provider to collect an attorney fee based on the actual hours worked. “The [WCJ] has great discretion in the award of attorney’s fees and will not be disturbed absent manifest error.” Dietz v. Guichard Drilling Co., 626 So.2d 79, 83 (La.App. 3 Cir.1993).

In the case before us, Thomas’s attorney submitted an affidavit attesting that as of October 19, 2009, he had worked 2.2 hours on the case. Since October 19, 2009, Thomas’ attorney has also prepared this case for trial and tried this case, along with three others on these issues, in a trial that lasted an entire day. Given the great discretion affording the WCJ on this issue, we find no error in its award.

Thomas also seeks additional attorney fees for work on appeal. The award of additional attorney fees is warranted when the claimant successfully defends its judgment. See Central La. Ambulatory Surgical Ctr., Inc., 10-86 (La.App. 3 Cir. 10/20/10), 40 So.3d 689 (On rehearing). “Generally, when an award for attorney’s |fifees is granted [by the WCJ], additional attorney’s fees are proper for work done on appeal [so as] to keep the appellate judgment consistent with the underlying judgment.” Wilczewski, 2 So.3d at 1226. Accordingly, we award Thomas an additional $1,500.00 in attorney’s fees for work done on appeal.

Thomas assigned an error in the admission of certain documents. We consider this assignment of error moot.

CONCLUSION

The issue of the validity of a PPO agreement to a workers’ compensation case need not be addressed, because even if such an agreement were valid, the notice required be given to the health care provider was not effected. Therefore, the PPO was not allowed to discount the reimbursement below the workers’ compensation reimbursement schedule. The judgment of the Workers’ Compensation Judge awarding Thomas $51.66 is affirmed. Likewise, the notice provisions of the PPO laws are clear and unambiguous. The failure to follow these dictates, yet to still attempt to discount the health care provider’s reimbursement, warrants the imposition of penalties. The single penalty of $2,000.00 is affirmed. Moreover, the award of $4,500.00 in attorney fees is affirmed given the great discretion afforded the WCJ. Finally, Thomas is awarded additional attorney’s fees for this appeal of $1,500.00.

AFFIRMED.

GREMILLION, J., concurs in parts and dissents in part and assigns written reasons.

GREMILLION, Judge,

concurs in part and dissents in part.

1,1 find that the attorney fees awarded by the WCJ are too high and should be reduced. Thus, I dissent on this issue for the same reasons I assigned in my dissent in Central La. Amabulatory Surgical Crt., Inc., 10-86 (La.App. 3 Cir. 10/20/10), 46 So.3d 689 (On rehearing). In all other respects I concur with the majority.

      . Dr. Knecht and Dr. Joseph A. Thomas formed the Thomas Medical Group, a corporation operating under Subchapter S. Three years later, Dr. Thomas died. Dr. Knecht is the sole physician member of the Thomas Medical Group.

      . The last exhibit of which Thomas complains consists of documents reflecting the terms of the settlement of a class action suit, Gunderson v. F.A. Richard & Assocs., Inc., docket 2004-2417 of the 14th Judicial District Court, Calcasieu Parish, Louisiana. The suit was settled releasing the “affiliates,” which included entities related to FOCUS and Concen-tra.


author: PER CURIUM.

text:
    Robert Kevin McCARTNEY, et al. v. Carolyn J. RYLAND, et al.
    No. 10-597.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.
    Rehearing Denied Feb. 9, 2011.
    Paul Mantle Lafleur, Attorney at Law, Alexandria, LA, for Defendant Appellee, Hon. Carolyn J. Ryland, Clerk of Court.
    Robert Kevin McCartney, DWCC H3A, Homer, LA, for Plaintiff Appellant, Robert Kevin McCartney, Aubrey McCartney, Elaine McCartney.
    Court composed of JOHN D. SAUNDERS, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   PER CURIUM.

|,In this case, the plaintiff filed suit, pro se, individually and on behalf of numerous members of his family in Rapides Parish asserting various claims for relief against the Rapides Parish Clerk of Court. The trial court dismissed these claims with prejudice and assessed the plaintiff with costs citing La.R.S. 15:1184(B), no cause of action, and prescription. We affirm.

FACTS, PROCEDURAL HISTORY, DISCUSSION OF THE MERITS, AND DISPOSITION:

On April 10, 2008, Robert Kevin McCartney (McCartney) filed suit individually and on behalf of various family members against Carolyn C. Ryland (Ryland) in Rapides Parish seeking “monetary, in-junctive, and declaratory judgments in favor of all plaintiffs.” McCartney is not a stranger to this court, nor most any court in our judicial system. McCartney has been denied relief by our court system all the way up to our United States Supreme Court on multiple occasions. See McCart ney v. Louisiana, 522 U.S. 1002, 118 S.Ct. 573, 139 L.Ed.2d 412 (1997); McCartney v. Terral, 525 U.S. 1125, 119 S.Ct. 910, 142 L.Ed.2d 908 (1999); McCartney v. Cain, 537 U.S. 953, 123 S.Ct. 420, 154 L.Ed.2d 300 (2002); In re McCartney, 546 U.S. 809, 126 S.Ct. 275, 163 L.Ed.2d 281 (2005); McCartney v. McCormick, — U.S.-, 130 S.Ct. 1746, 176 L.Ed.2d 219, 78 USLW 3521 (2010).

Our United States Court of Appeals, Fifth Circuit, in McCartney v. Terral, 98-30490, p. 1 (5th Cir.8/26/98), 157 F.3d 903, cert. denied, 525 U.S. 1125, 119 S.Ct. 910, 142 L.Ed.2d 908 (1999), chastised McCartney when it stated the following:

We previously warned McCartney that additional frivolous appeals would result in the imposition of sanctions against him. Accordingly, McCartney is BARRED from filing any pro se civil appeal in this court without the prior written approval of an active judge of this court. Further, he is BARRED from filing any pro se initial civil pleading in any court which is subject to this court’s jurisdiction, without the advance written permission of a judge of the forum court. The clerk of this court and the clerks of all federal district courts subject |2to the jurisdiction of this court are directed to return to McCartney, unfiled, any attempted submission inconsistent with this bar.

In his latest attempt to move the judicial system into action, McCartney asserts that Ryland, in her capacity as clerk of court for Rapides Parish, failed “to keep correct, accurate, and truthful records, a lawful duty, that created the basis” of this suit. The trial court, for various reasons, including La.R.S. 15:1184(B) dismissed all claims against Ryland with prejudice.

After consideration of the errors alleged by McCartney and a thorough review of the record, we find that McCartney has, once again, failed to raise any issues with merit. Therefore, we affirm the judgment of the trial court. All costs of this appeal are assessed to McCartney.

AFFIRMED.

      . Louisiana Revised Statutes 15:1184(B) provides:
      The court, on its own motion or on the motion of a party, shall dismiss any prisoner suit if the court is satisfied that the action is frivolous, is malicious, fails to state a cause of action, seeks monetary relief from a defendant who is immune from such relief, or fails to state a claim upon which relief can be granted. If the court makes a determination to dismiss the suit based on the content, or lack thereof, of the petition, the court may dismiss the underlying claim without first requiring the exhaustion of administrative remedies. The court, on its own motion, may raise an exception of improper venue and transfer the suit to a court of proper venue or dismiss the suit.


author: SAUNDERS, Judge.

text:
    SUCCESSION OF Mary Louida Arceneaux LEFORT.
    No. 10-590.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.
    Rehearing Denied Feb. 9, 2011.

      Glenn W. Alexander, Attorney at Law, Cameron, LA, for Appellee, Mary Lou Stoker Joanen Ted Joanen.
    Michael Bruce Holmes, Attorney at Law, Kinder, LA, for Appellant, Ethel Marie Fontenot Sack Lefort.
    Court composed of JOHN D. SAUNDERS, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   SAUNDERS, Judge.

| ¶ Herein, we address whether the trial court committed manifest error in its partitioning of the newly discovered property of the succession of Mary Louida Arcen-eaux Lefort. For the following reasons, we affirm the ruling of the trial court but remand the matter so that a notary may be appointed to execute the partition in accordance with La.Code. Civ.P. art. 4605.

FACTS AND PROCEDURAL HISTORY:

The matter before us arises out of the succession of Mary Louida Arceneaux Le-fort (hereinafter referred to as “Mary Louida”). Mary Louida and Alexis Joseph Lefort, Jr. (hereinafter referred to as “Alexis”) were married for thirty-nine years. Mary Lou Stoker Joanen (hereinafter referred to as “Joanen”) was the daughter of Mary Louida from a previous union. Mary Louida died in 1997, and Alexis subsequently married Ethel Marie Fontenot Sacker (hereinafter referred to as “Ethel”).

Mary Louida’s last will and testament was probated in March of 1997, with all of her property (the entirety of Mary Loui-da’s separate property and half of the community property owned by Mary Louida and Alexis) being left to Joanen, subject to a right of use in favor of Alexis. In the judgment of possession, however, the right of use granted to Alexis was termed a usufruct. The community property included in the judgment of possession consisted of a home located in Welsh, Louisiana, a Lincoln Towncar, a lot of household furniture, and multiple bank accounts.

In November of 2005, upon discovering that several substantial pieces of Mary Louida’s property had been omitted from the 1997 succession, Joanen filed a petition to reopen the succession and for the appointment of an independent administra-trix. Among the items that Joanen alleged were omitted were multiple New York Life |2Company Mainstay Fund accounts that totaled $412,892.06. Joanen argued that these were community assets of Mary Louida and Alexis. She also alleged that there were several items of Mary Louida’s separate property that were not included in the judgment of possession: a dinnerware set, decorative cups and saucers, a painting, a bench, a rocking chair, and a telephone table. All of this property was left to Ethel, by way of testament, after the death of Alexis in April of 2005.

Joanen filed a petition to partition the succession on April 17, 2006. Specifically, she requested that the court partition the community property of Alexis and Mary Louida that was omitted from the original judgment of possession and that it order Ethel to return the separate property of Mary Louida. Ethel filed exceptions of lis pendens, improper venue, improper cumu-lation of actions, and no cause of action. The exceptions were denied by the trial court.

After hearing the case, the trial court made the following findings: It found that the home in Welsh was to be put up for sale with the proceeds divided evenly between the parties. It found that the six household items (dinnerware, cups and saucers, painting, bench, rocking chair, and telephone table) were the separate property of Mary Louida and were to be returned to Joanen. It found that the New York Life accounts were opened during the marriage of Mary Louida and Alexis; thus, the accounts were community property.

Subsequent to Mary Louida’s death, the accounts were transferred to other accounts bearing the names of Alexis and Ethel. After Alexis’s death, Ethel mistakenly listed the accounts as having been Alexis’s separate property and transferred the money into accounts bearing only her name. The trial court found that Joanen was entitled to Mary Louida’s half of the accounts, $211,177.26 of the |a$422,354.51 total. It also found that Joanen was still owed Mary Louida’s half share of the checking and savings accounts held by Mary Louida and Alexis during their marriage. It awarded Joanen $10,443.50, half of the $20,887.00 total. Finally, the court awarded Joanen reimbursement for certain expenses related to the items included in Mary Louida’s succession, totaling $5,931.87.

Joanen passed away on November 9, 2008, shortly after trial ended. A formal judgment of partition of succession was signed on November 16, 2008. A motion and order to substitute party was filed by Joanen’s surviving husband, Ted Joanen, on December 17, 2008. Ethel then appealed the November, 16, 2008, judgment, asserting that the trial court had erred in issuing a judgment in favor of a deceased person and that the judgment was an absolute nullity. This court agreed and dismissed the case without prejudice and remanded the matter back to the trial court for further appropriate proceedings and for such action as the law permits.

On January 19, 2010, the trial court rendered a new formal judgment of partition of succession in favor of Ted Joanen (hereinafter referred to as “Appellee”), otherwise identical to the initial judgment rendered in favor of Joanen. It is from this judgment that Ethel now appeals.

APPELLANT’S ASSIGNMENTS OF ERROR:

1. The Trial Court erred in denying Appellant’s Exception of Improper Venue and Improper Cumulation of Actions.
2. The Trial Court erred in denying Appellant’s Peremptory Exception of No Cause of Action.
3. The Trial Court erred in allowing Appellee to make collateral attack upon the prior Judgment of Possession that granted decedent’s husband a “usufruct” over all of her property and in ruling the testament of the decedent granted only a “use” of decedent’s property and not a “usufruct.”
|44. The Trial Court erred in concluding Appellee had met her burden of proof to establish her right to partition of the succession.
5. The Trial Court erred in concluding the home in Welsh and New York Life investment accounts were subject to partition within the succession.
6. The Trial Court erred in determining the hand-made bench, telephone table and desert rose pattern china was the separate property of Mary Louida Areen-eaux LeFort and in ordering Appellant to return these items to Appellee as part of the partition of succession.
7. The Trial Court erred in casting Appellant in judgment in favor of Appellee for one-half the value of the New York Life investment accounts.
8. The Trial Court erred in awarding pre-judgment interest to Appellee from the date of death of Mary Louida Arceneaux Lefort.
9. The Trial Court erred in refusing to deem as judicial confessions Ap-pellee’s prior statements under oath concerning the assets of her mother’s estate.
10. The Trial Court erred in failing to appoint a Notary Public to make the partition between the parties in accordance with law.
11. The Trial Court erred in failing to order an appraisal of the home pri- or to its partition by licitation.

LAW AND DISCUSSION ON THE MERITS:

Standard of Review

The standard of review to be applied by this court was set out by our supreme court in Stobart v. State, through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993) (citations omitted) (alteration in original).

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989). This court has announced a two-part test for the reversal of a factfinder’s determinations:
1) The appellate court must find from the record |sthat a reasonable factual basis does not exist for the finding of the trial court, and
2) The appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).
This court has recognized that “[t]he reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

Assignment of Error No. 1

In her first assignment of error, Ethel argues that the trial court erred in denying her exceptions of improper venue and improper cumulation of actions.

As the foundation of this claim, Ethel asserts that the action has been mislabeled as a petition to partition succession and that it would be more accurately described as three separate actions: “(1) partition of co-owned immovable (home in Welsh) between [Joanen] and Ethel; (2) possession of certain pieces of movable property alleged to be in the hands of Ethel; and (3) partition between [Joanen] and Ethel of alleged newly discovered assets of estates of Mary Louida Arceneaux LeFort.”

Under this premise, Ethel argues that the action for the return of certain pieces of movable property should have been brought in Allen Parish instead of Jefferson Davis Parish. She asserts that under the general rules of venue, an action against an individual who is domiciled in the state shall be brought in the parish of his domicile. La.Code Civ.P. art, 42. As Ethel is a domiciliary of Allen Parish, she argues that Allen Parish is the proper venue for this action. We find no merit in this argument.

Louisiana Code of Civil Procedure Article 3393 provides that when other | (¡property is discovered, or for any other proper cause, a succession may be reopened upon the petition of any interested party.

After formal or informal acceptance by the heirs or legatees or rendition of a judgment of possession by a court of competent jurisdiction, if other property is discovered, or for any other proper cause, upon the petition of any interested person, the court, without notice or upon such notice as it may direct, may order that the succession be opened or reopened, as the case may be, regardless of whether or not, theretofore, any succession proceedings had been filed in court. The court may appoint or reappoint the succession representative, if any, or may appoint another, or new, succession representative. The procedure provided by this Code, for an original administration, shall apply to the administration of successions formally or informally accepted by heirs or legatees and in successions where a judgment of possession has been rendered, in so far as same is applicable.

La.Code Civ.P. art. 3393(B).

Joanen, upon discovering property not included in the initial succession of Mary Louida, petitioned the trial court to reopen the succession in November of 2005. The property items addressed by Ethel in this assignment of error, despite being of separate categories of property, are properly part of the reopened succession of Mary Louida. As such, there was no improper cumulation of actions, and the applicable rules of venue are those for the partition of successions.

Louisiana Code of Civil Procedure Article 3461 directs that a “petition for the partition of a succession shall be filed in the succession proceeding as provided in Article 81(2),” and that “in all other respects and except where manifestly inapplicable, the procedure for partitioning a succession is governed by the provisions of Articles 4601 through 4614.”

Louisiana Code of Civil Procedure Article 4608 states, in pertinent part, that, “[t]he partition proceeding shall be brought in the venue provided by Article 80(2) if the property sought to be partitioned is immovables, or both movables and 17immovabIes.” Under La.Code Civ.P. 80(A)(2), the action may be brought in the parish where the immovable property is situated.

Here, the immovable property is the home in Welsh. This property is situated in Jefferson Davis Parish. Accordingly, the action for the partition of succession was properly brought in Jefferson Davis Parish.

Assignment of Error No. 2

In this assignment or error, Ethel contends that the trial court erred in denying her exception of no cause of action. Specifically, Ethel identifies three problems: (1)Joanen and Ethel were not co-heirs of Mary Louida; (2) there was no showing that inheritance taxes were paid or that none are owed; (B) Joanen did not allege that either Ethel or Alexis had accepted the succession of Mary Louida.

In her first complaint, Ethel argues that there is no cause of action because Joanen did not allege that she and Ethel were co-heirs, instead alleging that they were co-owners of certain property as a result of two, separate succession proceedings. Ethel contends that an action for the division of succession property lies between heirs only and only as to assets which they have not been placed in possession. That is incorrect.

Louisiana Civil Code Article 1318 reads, in pertinent part: “Not only the coheir himself, but the heirs of that coheir, and any other successor can compel a partition of the estate, and be themselves compelled to make it.” In the present matter, Alexis was the surviving spouse of Mary Louida. When he died, his general legatee was Ethel. This means that when Mary Loui-da died, Joanen and Alexis were | scoheirs since Alexis was granted a right of use over Mary Louida’ property for the duration of his life. Ethel, in turn, was Alexis’s heir. Accordingly, Ethel, as the heir to the coheir of Joanen, can be compelled to make a partition of the estate under La. Civ.Code art. 1318.

In her second complaint, Ethel argues that there was no cause of action because Joanen failed to allege that inheritance taxes had been paid or that no taxes were due. Again, we find no merit in this assignment of error. As to the items that were included in the original judgment of possession of Mary Louida’s succession, an inheritance tax return was filed, and a tax receipt was provided. As to the items not included in Mary Louida’s original succession, it would be far removed from the interests of justice for this court to penalize Joanen for failing to include items that she had no idea existed on an inheritance tax return.

In the final complaint under this assignment of error, Ethel asserts that no cause of action existed in that there was no allegation that either Ethel or Alexis had unconditionally accepted the succession of Mary Louida. Again, this court finds no merit in the argument presented. A review of the record before us makes abundantly clear that Alexis, and then Ethel upon his death, fully accepted the succession of Mary Louida.

“In the absence of renunciation, a successor is presumed to accept succession rights.” La.Civ.Code art. 962. “Acceptance may either be formal or informal. It is formal when the successor expressly accepts in writing or assumes the quality of successor in a judicial proceeding. It is informal when the successor does some act that clearly implies his intention to accept.” La.Civ.Code art. 957. “An act of 1 nownership that can be done only as a successor implies acceptance, but an act that is merely administrative, custodial, or preservative does not imply acceptance.” La.Civ.Code art. 959.

Ethel argues that “one cannot accept that which he was not aware existed.” However, following the death of Alexis, Ethel took possession of the succession property at issue, including the household movable items and the New York Life accounts — even changing the accounts over to her name only. We find that the behavior of Alexis and Ethel amounts to an act of ownership sufficient to invoke informal acceptance of the relevant succession property. We accordingly find that the trial court was correct in denying the exception of no cause of action.

Assignment of Error No. 3

In her third assignment of error, Ethel contends that the trial court erred in allowing the Appellee to make a collateral attack upon the prior judgment of possession that granted decedent’s husband a usufruct over all of her property. We disagree.

The last will and testament of Mary Louida included the following provision: “I leave unto my husband, Joseph Alexis Le-fort, the use of all my property for the remainder of his life.” In the Petition for Possession and Judgment of Possession filed in the original succession proceeding of Mary Louida, the attorney for Alexis used the term “usufruct” rather than “use.” Accordingly, Alexis was sent into possession of one-half of the couple’s community property and was given usufruct over the remaining one-half. In the proceedings related to the reopening of Mary Louida’s succession, the trial court found that Alexis was only given a right of use 1 ,nrather than the broader right of usu-fruct.

The distinction is significant in this matter in that there is both movable and immovable property at issue. Louisiana Civil Code Articles 639 and 640 dictate that a right of use is a personal servitude that confers a specified use of an estate less than full enjoyment and that it may only confer an advantage that may be established by a predial servitude. As such, the right of use only attaches to immovable property, as opposed to a usufruct, which would extend to both immovable and movable property. Of particular importance here are the New York Life accounts, bank accounts, and household furnishings, all of which fall under the class of movables.

Ethel argues that the trial court erred in reinterpreting the word “use.” She cites the Succession of McCarthy, 583 So.2d 140, (La.App. 1 Cir.1991), in support of her argument that a judgment of possession is final and binding on the hems, and she notes that La.Code Civ.P. art. 2931 provides that “[a] probated testament by be annulled only by a direct action brought in the succession proceeding against the legatees, the residuary heir, if any, and the executor, if he or she has not been discharged.”

There is no indication that Joanen, or the Appellee before us now, intended to annul the entirety of the probated testament of Mary Louida. Rather, it appears that the goal was to be placed in possession of the items of property omitted from the earlier proceeding and to clarify the clear language of Mary Louida’s will dictating that Alexis be given the “use” of Mary Louida’s property. Ethel argues that such an action can only take place in a succession proceeding against the legatees, the residuary heir, if any, and the executor. That is precisely the setting of the matter before this court. For this reason, we are unable to conclude that the trial court was |nmanifestly erroneous in its ruling on the issue. Accordingly, we find no merit in this assignment of error.

Assignment of Error No. ⅛

In this assignment of error, Ethel argues that Joanen (and now the Appellee) failed to meet the applicable burden of proof in order to establish a right to partition the succession. In support of this assignment, Ethel reiterates the arguments set forth in “Assignment of Error No. 2.” For reasons set forth therein, we find no merit in this claim.

Assignment of Error No. 5

In her fifth assignment of error, Ethel reiterates her argument from “Assignment of Error No. 1,” in which she argues that the home in Welsh has been improperly included in this partition of succession proceeding. For the reasons set forth therein, we disagree. Furthermore, as has been argued by the Appellee, even if the home in Welsh was to be classified simply as an item of immovable property owned by two parties in indivisión, the remedy would be the same — partition by licitation. In the interests of judicial economy, it would be prudent to attend to the matter in the current proceeding.

Ethel next argues that the New York Life accounts cannot be partitioned because they are no longer assets of the succession. She bases this argument on the fact that the accounts were transferred to new accounts bearing Alexis’s and later Ethel’s names. The trial court’s authority over an account does not cease to exist with the alteration of the account number or its name. If this court were to accept Ethel’s argument, the door would be open in every succession containing bank or investment accounts for a party to escape accountability by altering the designations of those 112accounts.

For the above stated reasons, we find no merit in this assignment of error.

Assignment of Error No. 6

In this assignment of error, Ethel argues that the trial court erred in determining that the bench, telephone table, and desert rose pattern china were the separate property of Mary Louida and in ordering Ethel to return the items to the Appellee. The trial court found as a fact that these items of movable property were the separate property of Mary Louida. There is nothing in the record indicative to this court that the trial court was clearly wrong or committed manifest error in that determination.

Regarding the china, Joanen testified as to the history of the dinnerware and how Mary Louida came into possession of it piece by piece. Margie Woodcock, the sister of Ethel, stated in her deposition that she was aware of the china since she had a full set of it herself. She also stated that although Ethel had some pieces of the same pattern, she did not have a complete set at the time of Alexis’s death.

Regarding the bench, Ethel contends that it was given to her by Alexis as a birthday gift. Joanen testified at trial that the bench originally belonged to her grandmother and, later, Mary Louida. She produced an old photograph showing her grandmother along with the same bench.

Regarding the telephone table, Joanen testified as to its history and stated that it was purchased by Mary Louida in 1950 or 1951. Ethel has produced no evidence to suggest otherwise — only stating that it was left by Joanen at the home in Welsh after she had removed most of her furniture.

As stated above, there is nothing in the record that would suggest that the trial court committed manifest error in its ruling on these items of movable | ^property — particularly in light of the photographs and history provided by Joan-en at trial. Accordingly, we find no merit in this assignment of error.

Assignments of Error Nos. 7 & 8

In these assignments of error, Ethel argues that the trial court erred in casting judgment in favor of the Appellee for one-half the value of the New York Life investments accounts and in awarding legal interest to the Appellee running from the date of Mary Louida’s death.

Ethel again contends that the trial court no longer held any authority over the New York Life accounts once they were switched over to Alexis’, and then Ethel’s, names. For the reasons discussed in “Assignment of Error No. 5,” this court finds no merit in that argument.

Ethel further argues that if any legal interest was due to the Appellee, it should have run from the time of Alexis’ death— not from the death of Mary Louida — since Alexis was granted usufruct over all of Mary Louida’s property, including the New York Life accounts. This is not the case. Again, as was discussed above in “Assignment of Error No. 8,” the benefit conferred to Alexis in the last will and testament of Mary Louida was a right of use, not the broader right of usufruct. As a right of use can only confer an advantage that may be established by a predial servitude, the benefit does not extend to movable property such as the New York Life accounts. Accordingly, we find that the trial court was correct in calculating legal interest from the date of Mary Louida’s death.

Assignment of Error No. 9

In this assignment of error, Ethel contends that Joanen’s signature on the sworn estimative list prepared for Mary Louida’s succession amounts to a judicial | Mconfession estopping her from claiming any additional assets belonging to the succession. We disagree, as such an argument runs afoul of the purpose of La.Code Civ.P. art. 3393(B).

Louisiana Civil Code Article 1853 defines a judicial confession as “a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it. A judicial confession is indivisible and it may be revoked only on the ground of error of fact.”

Louisiana Code of Civil Procedure Article 3393(B) allows any interested party, after the discovery of other property or for any other proper cause, to reopen a succession.

As the general legatee of Mary Louida’s succession, Joanen was precisely the party that Article 3393(B) intended to protect in the instance before this court where other property allegedly belonging to Mary Louida’s succession has been discovered. Furthermore, in signing the sworn estima-tive list, Joanen was merely certifying that the items of property included on the list were owned by Mary Louida at the time of her death. The action instituted by Joan-en to recover any unknown assets properly belonging in Mary Louida’s succession does not amount to a revocation of a judicial confession made in signing the sworn estimative list. Rather, it is an action taken by an interested party, as the general legatee of the decedent, to exercise the rights provided by La.Code Civ.P. art. 3393(B).

For these reasons, we find no merit in this assignment of error.

Assignments of Error Nos. 10 & 11

In her final assignments of error, Ethel argues that the trial court erred in failing to appoint a notary to partition the property and in failing to direct that the property |1sbe appraised prior to sale.

In support of her argument that an appraisal is required prior to the sale of the succession property, Ethel cites La. Code Civ.P. arts. 4607 and 2381-2382. Article 4607 directs that “when a partition is to be made by licitation, the sale shall be conducted at public auction and after the advertisements required for judicial sales under execution.” The article, however, does not call for an appraisal. Articles 2331 & 2332 address the sale of property under a writ of fieri facias. These articles concern property that has been seized and sold to satisfy a debt. Although they do call for an appraisal, the intention behind the requirement is to assure that the judgment debtor receives a certain minimum value for the property to satisfy the debt. Here, the proceeds of the sale are being divided equally between the parties, and the property must be sold regardless of the appraised value. As such, no appraisal is needed.

Regarding Ethel’s second contention, that the trial court erred in not appointing a notary, she cites La.Code Civ.P. art. 4605, which reads as follows:

A partition proceeding shall be tried with preference over other ordinary proceedings.
After the trial of the proceeding, if the court finds that the plaintiff is entitled to a partition of the property, the court shall appoint a notary to make the partition in accordance with law.
Except as otherwise provided in Article 4606, the court has discretion to direct the manner and conditions of effecting the partition, so that it will be most advantageous and convenient to the parties.

(Emphasis added).

Article 4605 is clear in its mandate that a notary must be appointed by the court, and we agree with Ethel that the trial court erred in failing to do so. Accordingly, we remand the matter back to the trial court so that the proper procedure |1fímay be followed in accordance with La.Code. Civ.P. art. 4605.

CONCLUSION:

For the foregoing reasons, we affirm the judgment of the trial court on all issues except its failure to appoint a notary to make the partition of the property as mandated by law. Accordingly, the matter is remanded so that the proper procedure may be followed in accordance with La. Code Civ.P. art. 4605. All costs of this appeal shall be assessed to the Appellant, Ethel Marie Fontenot Sacker.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.