author: GENOVESE, Judge.

text:
    STATE in the Interest of B.O.G., D.D.G., B.T.G., and K.M.G.
    No. 2008-1103.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 2009.

      Donald D. Cleveland, Lafayette, LA, for Defendant/Appellant, J.K.R.
    Lloyd Dangerfield, Lafayette, LA, for Defendant/Appellant, K.J.G., Allyson M. Prejean Lafayette, LA, for Minors/Appel-lees, K.M.G., B.O.G., D.D.G., and B.T.G.
    Vivian Neumann, Lafayette, LA, for Defendant/Appellee, C.G.
    John A. Hernandez, III, Lafayette, LA, for Defendant/Appellee, D.B.
    Paula Dossmann, Lafayette, LA, for Ap-pellee, State of Louisiana.
    Dawn M. Fuqua, L. Antoinette Beard, Lafayette, LA, for Appellee, State of Louisiana.
    Michael Harson, District Attorney, Michelle M. Breaux-ADA, Lafayette, LA, for Appellee, State of Louisiana.
    Court composed of OSWALD A. DECUIR, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

11K.J.G., the biological father of the minor children B.O.G. and D.D.G., and J.R., the biological father of the minor child, K.M.G., appeal a judgment of the trial court terminating their respective parental rights and certifying their minor children eligible for adoption. For the following reasons, we affirm the termination of the parental rights of J.R., reverse the termination of the parental rights of K.J.G., and remand the matter relative to the minor children, B.O.G. and D.D.G., for the reinst-itution of juvenile proceedings.

FACTS

The minor children, B.O.G. (date of birth 1/31/99), D.D.G. (date of birth 8/29/00), and K.M.G. (date of birth 7/15/06), along with another sibling, B.T.G., were placed in the care of the State of Louisiana, through its Department of Social Services (DSS), Office of Community Services (OCS or State), pursuant to an instanter order issued August 21, 2006, based upon allegations of lack of supervision by them mother, C.G., with whom they resided. Upon arrival at the home, law enforcement officials found that the children had been left alone for an extended period of time; consequently, C.G. was arrested for child abandonment.

B.O.G., D.D.G., and K.M.G., were placed in the home of them maternal aunt and uncle. The children were adjudicated as children in need of care pursuant to La.Ch. Code art. 666 on September 26, 2006. The minor children have remained in the custody of their maternal aunt and uncle since being placed in their home in August of 2006.

|2The initial case plan was established in September of 2006 with a goal toward reunification of the children with their parents. The goal of subsequent case plans remained reunification from September of 2006 through August of 2007. The trial court conducted review hearings, approved each of the case plans, and maintained the custody of the children with the State. In August of 2007, however, the State’s goal changed from reunification of the children with their parents to that of adoption, which was approved by the trial court.

In February of 2008, the State recommended that the case plan goal be changed back to reunification, but the review hearing was continued by the trial court due to a lack of service on C.G., and the recommended goal of adoption never did revert back to reunification. The trial court approved the subsequent case plan in May of 2008 with a goal of adoption and maintained the custody of the children with the State.

In the interim, on March 19, 2008, the State filed a Petition for Termination of Parental Rights and Certification for Adoption. A termination hearing was held on June 24, 2008, wherein the trial court terminated the parental rights of K.J.G. and J.R. pursuant to La.Ch.Code art. 1015(4) and (5). A judgment terminating the parental | ¡(rights of K.J.G. and J.R. was signed by the trial court on July 1, 2008. It is from this judgment that K.J.G. and J.R. appeal.

ASSIGNMENTS OF ERROR

K.J.G. asserts the following assignments of error:

1. The trial court erred in terminating the rights of [K.J.G.,] the non-offending parent, for substantial noncompliance when he had completed several components of the case plan and was recently involved in mental health counseling.

2. The trial court erred in terminating the rights of [K.J.G.] where there had been improvement and a reasonable expectation for further improvement in the parent’s condition.

3. The trial court erred in finding that termination was in the best interest of the children when considering the relation with the father.

4. [OCS] failed to prove abandonment on the part of the father, [K.J.G.],

J.R. asserts only one assignment of error:

The trial [cjourt erred in terminating the parental rights of the Appellant, [J.R.].

LAW AND DISCUSSION

Our Louisiana Supreme Court has stated the following relative to the | .¡termination of parental rights:

An appellate court reviews a trial court’s findings as to whether parental rights should be terminated according to the manifest error standard. State ex rel J.W., 01-500 (La.App. 4 Cir. 11/14/01), 801 So.2d 1182. In two recent cases, we discussed the concerns regarding the involuntary termination of parental rights by the state, as follows:
In any case to involuntarily terminate parental rights, there are two private interests involved: those of the parents and those of the child. The parents have a natural, fundamental liberty interest to the continuing companionship, care, custody and management of their children warranting great deference and vigilant protection under the law, and due process requires that a fundamentally fair procedure be followed when the state seeks to terminate the parent-child legal relationship. However, the child has a profound interest, often at odds with those of his parents, in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long-term, and continuous relationships found in a home with proper parental care. In balancing these interests, the courts of this state have consistently found the interest of the child to be paramount over that of the parent.
The State’s parens patriae power allows intervention in the parent-child relationship only under serious circumstances, such as where the State seeks the permanent severance of that relationship in an involuntary termination proceeding. The fundamental purpose of involuntary termination proceedings is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care for his physical, emotional, and mental health needs and adequate rearing by providing an expeditious judicial process for the termination of all parental rights and responsibilities and to achieve permanency and stability for the child. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parents to be terminated. As such, the primary concern of the courts and the State remains to secure the best interest for the child, including termination of parental rights if justifiable grounds exist and are proven.
Title X of the Children’s Code governs the involuntary termination of parental rights. La. Child. Code art. 1015 provides the statutory grounds by which a court |smay involuntarily terminate the rights and privileges of parents. The State need establish only one ground, La. Child. Code art. 1015, but the judge must also find that the termination is in the best interest of the child. La. Child. Code. art. 1039. Additionally, the State must prove the elements of one of the enumerated grounds by clear and convincing evidence to sever the parental bond. La. Child. Code art. 1035(A). (Cites omitted.)
State in the Interest of J.A., 99-2905 (La.1/12/00), 752 So.2d 806, 810-811; see also State ex rel. C.J.K., 00-2375 (La.11/28/00), 774 So.2d 107.

State ex rel. K.G., 02-2886, pp. 4-5 (La.3/18/03), 841 So.2d 759, 762-63.

In the ease at bar, the trial court found that the State had met its burden of proof by clear and convincing evidence that the termination of the parental rights of K.J.G. and J.R. was in the best interest of the minor children.

TERMINATION OF J.R.’S PARENTAL RIGHTS

J.R. contends that the trial court erred in terminating his parental rights. Specifically, he raises the issue of whether the State “proved by clear and convincing evidence that it was in the best interest of [K.M.G.] to terminate the rights of [J.R.]” (emphasis added).

With respect to J.R., the Petition for Termination of Parental Rights and Certification for Adoption alleges that he failed to provide significant contributions to his minor child’s care and support for six months and that he failed to maintain significant contact with the child by visiting or communicating with the child for any period of six consecutive months. J.R. does not dispute these factual assertions on | Bappeal.

Although C.G. identified J.R. as the father of K.M.G., J.R. asserts in brief that he “was unaware that he was the father of [K.M.G.] when the child was born and when [K.M.G.] first entered the care of the [S]tate.” J.R. further asserts that he “did not know that [K.M.G.] was his child until February 19, 2007, which was after [K.M.G.] had entered the custody of the State.” J.R. argues that he was unable to complete the requirements of the case plan due to his incarceration. He contends that he “has not had the opportunity to provide support or communicate with the child due to his current circumstances.”

As noted above, the grounds for the trial court’s termination of J.R.’s parental rights under La.Ch.Code art. 1015 are not raised by J.R. as an issue on appeal. The only issue is whether the termination is in the best interest of the child. La.Ch.Code art. 1087. We find no manifest error in the trial court’s conclusion that the State met 17its burden of proving that the termination of J.R.’s parental rights was in the best interest of the minor child.

The evidence revealed that K.M.G. has bonded to his maternal aunt and uncle with whom he has resided since 2006. To the contrary, the child, now two years of age, has never known his biological father. Although J.R. asserts that he was unable to comply with the case plan due to his incarceration, it is noteworthy that J.R. made no effort to contact, support, or establish any relationship with his child even when he was not incarcerated. It was the testimony of the caseworker that, when J.R. was out of jail for approximately six weeks, he made no efforts to comply with any components of the case plan. Additionally, given his criminal history, and his past and present incarceration, the record supports the trial court’s conclusion that the best interest of K.M.G. is served by the termination of J.R.’s parental rights which makes the child eligible for adoption.

TERMINATION OF KJ.G.’S PARENTAL RIGHTS

The initial case plan established for K.J.G., and approved by the trial court, required that K.J.G. maintain housing, maintain employment, participate in a parenting course, undergo a substance abuse evaluation, participate in a psychological evaluation, resolve any criminal matters, pay child support of $50.00 per month, and visit with the minor children in accordance with the visitation plan. K.J.G. emphasizes that, at the time the minor children came into the custody of the State, he, the non-offending parent, was working out of state in Arkansas. He asserts that, initially, he “was not very involved in complying with his case plan because he did not have permanent housing as a result of his employment in the construction industry that caused him to travel often.” Additionally, “[djuring this period, it was Mr. [G.’s] hope | ¡¡that the mother would work her case plan so that all four children could be reunited with her.”

K.J.G. asserts that the case plan goal of reunification was changed to that of adoption by the trial court on August 21, 2007, “in spite of the fact that [he] had begun to work his case plan.” He notes that it was due to his efforts, and the progress which he made in completing the requirements of his case plan, that the State’s recommended case plan goal was changed from a goal of adoption back to a goal of reunification in February of 2008. In what he terms “an interesting turn of events,” in the interim, on March 17, 2008, the Petition for Termination of Parental Rights and Certification for Adoption was filed. K.J.G. also points to his continued efforts in complying with his case plan even after the petition was filed and concludes that “[a]t the time of the termination hearing, [he] had substantially complied with his case plan and was continuing to comply with the one outstanding element of the case plan, i.e., mental health counseling, through actions initiated by him.”

The record confirms that K.J.G. did make an effort to comply with the case plan, having undergone a psychological evaluation and completing a substance abuse evaluation and anger management course. K.J.G. also maintained contact with the State from February of 2007 through August of 2007. Although he had secured housing, K.J.G. was unable to pay child support allegedly due to a disability.

K.J.G. also continued his effort and contact with the State in October of 2007 upon his relocating to Texas. Once in Texas, he supplied proof of housing and informed the State as to how he could be contacted. A request was made by OCS of the State of Louisiana to its counterpart in the State of Texas for a home study to be performed in Texas. The home study was performed and approved.

IsFor the foregoing reasons, K.J.G. concludes that “[a]t no time after his children came into DSS’s custody did [he] demonstrate an intent to abandon his parental responsibilities.” The record corroborates the effort made by K.J.G. to comply with his case plan.

I. KJ.G.’s Compliance with His Case Plan

K.J.G. contends on appeal that he had completed several components of his case plan, and, thus, it was an error of the trial court to terminate his parental rights due to substantial non-compliance. We find merit in this contention.

Payment of Financial Contribution

KJ.G.’s case plan required that he make child support payments of $50.00 per month, per child. The record reveals that K.J.G. made no financial contributions to the children from the initiation of the case plan through August of 2007. On this component of his case plan, K.J.G. asserts that he applied for Social Security disability benefits and had begun to receive same “in either June or July of 2007.” Additionally, when he applied for disability benefits, he “made attempts to qualify his minor children to receive benefits ... and did in fact qualify his children for Social Security disability benefits.” Although he admits that the “amount received by each child was not verified, ... it was verified that the amount was much greater than the $50.00 per month indicated in the case plan.” The testimony of the caseworker verified that the minor children of K.J.G. did begin receiving Social Security disability benefits in either May or June of 2007.

Maintain Stable and Safe Housing

K.J.G. asserts that he had in fact secured housing and that he provided proof of same as well as the address and telephone number of his whereabouts in Texas. He | mfurther notes that a home study was performed in Texas, and the housing he provided was approved. The evidence in the record confirms these assertions.

Visitation

K.J.G. notes that “[t]he initial [caseworker] observed that during the visitation periods the children were very interactive with both parents.” Additionally, a subsequent caseworker noted that the children were “excited” to see K.J.G. and “observed the bonding between the father and the children and that they wanted to spend more time with [K.J.G.]” K.J.G. further asserts that, even after the termination petition was filed by the State, he continued to visit his children, and he maintained telephone contact with them.

After his disability, K.J.G. moved to Texas to be near his family and a support network. KJ.G.’s sister testified at the termination hearing that she would help him with the children. Though his visitation with his children was limited and left a lot to be desired, he still maintained contact with his children.

Mental Health Evaluation

K.J.G. notes that he did institute mental health counseling as he was required to do in his case plan. However, he acknowledges that this component of his case plan was never completed and that he did not begin attending mental health counseling until June of 2008, just weeks prior to trial.

Dr. Ed Bergeron, an expert in the field of family psychology and medical and clinical psychology, evaluated K.J.G. on April 9, 2007. Dr. Bergeron diagnosed K.J.G. with a “dependent personality disorder” which, in his opinion, would not be aided by medication. He testified that the requisite treatment would require “intense mental health counseling” to strive for “overall character change.” Dr. Bergeron went l^on to explain that K.J.G. was likely to get involved in unhealthy relationships and “was [a] very, very high risk to be involved with a partner who would possibly mistreat the children.” Although Dr. Berger-on did not conclude that K.J.G. would personally mistreat the children, he did testify that “he would not take corrective action” and was more inclined to “passive abuse.” Although at the time of trial K.J.G. had not completed the required mental health counseling, he had in fact instituted the required mental health counseling and should be allowed to continue and complete same for the purpose of effectuating reunification.

Domestic Violence, Anger Management, and Parenting Skills Classes

As part of his case plan, K.J.G. was also required to complete a domestic violence counseling class, an anger management class, and a parenting skills class. According to the testimony of the caseworker, K.J.G. had completed the anger management class. K.J.G. also informed the caseworker that he had completed the parenting class, but failed to provide any verification thereof. K.J.G. did not complete the domestic abuse counseling.

II. Reasonable Expectation of Further Improvement

In short, K.J.G. argues that his achievements discussed above illustrate that there had been an improvement in his condition and that there was a reasonable expectation for further improvement. We agree.

11?Dr. Bergeron testified that “[K.J.G.] generated a rather deviant personality profile.” Dr. Bergeron stated that the testing indicted that K.J.G. had “low self-esteem, general passivity, ... dependent orientation,” and exhibited an “overuse of denial.” He further explained that this was of “particular concern” because K.J.G. would “remain in denial[,]” and his failure to take corrective action would be detrimental to the children. According to Dr. Bergeron, given the personality disorder of K.J.G., “the assumption would be that the problems persist.” In Dr. Bergeron’s estimation, the best case scenario for treatment of a personality disorder such as that of K.J.G. would be six months. The evidence in the record does support KJ.G.’s assertion that there had been improvement and that there was a reasonable expectation for further improvement. As previously set forth by this court, a parent can show “[r]eformation sufficient to prevent termination of parental rights [which] requires that the parent demonstrate substantial change....” State ex rel. S.D.G., 08-154, p. 20 (La.App. 3 Cir. 11/5/08), 996 So.2d 1242, 1253 (quoting State in the Interest of D.T., L.T., and M.T., 29,796, p. 9 (La.App. 2 Cir. 6/18/97), 697 So.2d 665, 670); C.D. v. L.C., 01-663 (La.App. 3 Cir. 10/3/01), 796 So.2d 844, writ denied, 01-2986 (La.11/20/01), 801 So.2d 1079.

III. Best Interest of the Children

K.J.G. argues on appeal that the trial court erred in finding that termination of his parental rights is in the best interest of the children. We agree.

In considering this issue, we are mindful that “because the permanent termination of the legal relationship existing between natural parents and the child is one of the most drastic actions the State can take against its citizens, the courts must proceed with extreme care and caution.” State ex rel. S.L.W., 06-1560, p. 7 (La.App. 4 Cir. 4/18/07), 958 So.2d 53, 58, writ denied, 07-933 (La.6/1/07), 957 So.2d 183 (citing State ex rel. J.A., 99-2905 (La.1/12/00), 752 So.2d 806). Additionally, although the State’s goal is to secure a permanent home for the children, “while there is still reason to believe that positive, nurturing parent-child relationships exist, the parens patriae interest favors preservation, not severance, of natural familial bonds.” Santosky v. Kramer, 455 U.S. 745, 766-67, 102 S.Ct. 1388, 1401-02, 71 L.Ed.2d 599 (footnote omitted). Moreover, as the second circuit has recognized, “[a]n order of termination of parental rights, serves, in fact, as the parental death penalty.” State ex rel. S.A.C., 41,-474, p. 3 (La.App. 2 Cir. 8/23/06), 938 So.2d 1107, 1109.

Notably, in the case at bar, the trial court did not articulate any factual reasons for reaching the conclusion that termination of K.J.G.’s parental rights is in the best interest of the children. The record establishes that K.J.G. was not residing with his children when they were placed in the custody of OCS in 2006. At that time, he was working out of state. According to his testimony, while he was employed, K.J.G. would send financial support for his children. Unfortunately, due to his disability, he was out of work and unable to assist his children financially. Through his efforts, however, he did qualify his children to receive financial assistance in the form of Social Security disability benefits.

As discussed above, K.J.G. also made additional strides in complying with his case plan in an effort towards reunification with his children. While he was not totally successful, his efforts are indicative of his intent to maintain a parental relationship with his children. K.J.G. did not abuse his children. He has no pending criminal charges, no substance abuse problems, and has begun mental health counseling. He also has secured suitable housing in Texas where he has family support.

114Perhaps most important is the continued relationship between K.J.G. and his children. Despite his relocation to Texas, he would travel to Lafayette to visit with them. According to one caseworker, during KJ.G.’s visits with the children, they were “very interactive” with him. Another caseworker testified that the visits between K.J.G. and his children “went pretty well[,]” and the children “were excited to see [their] dad.” When the visits were over, “they still wanted to visit with dad for additional time.” The children referred to K.J.G. as “Dad.” We find that these facts establish that, although the children were doing well in foster care, they did continue to have a relationship with K.J.G. which he sought to maintain. These actions on the part of K. J.G. corroborate his testimony that he wanted “to get [his] kids back and give them a good life.”

The petition seeking termination of KJ.G.’s parental rights was filed by the State on March 17, 2008; however, just one month earlier, the State’s recommended goal had been changed from a goal of adoption back to a goal of reunification. Since the State recommended a change of goal from adoption back to a goal of reunification just one month prior to its filing for termination, it is at the very least a rational assumption that there had been improvement and a reasonable expectation for further improvement in KJ.G.’s status not yet warranting the parental death penalty. Because of the finality of the termination of one’s parental rights, it is far better to err in favor of reunification than to err on the side of termination. Should K.J.G. falter in the future with his case plan, then termination will be much more certain to follow.

Considering all of the testimony and evidence in the record of these proceedings, we find that the State failed to satisfy its burden of proof by clear and convincing evidence that termination of KJ.G.’s parental rights is in the best interest 11sof the minor children. Thus, we find manifest error in the ruling of the trial court that it is in the best interest of the minor children that fLJ.G.’s parental rights be terminated and that these children be certified for adoption.

DECREE

For the foregoing reasons, the judgment of the trial court terminating the parental rights of J.R. is affirmed, and J.R. is assessed with costs relative to his case. The judgment of the trial court terminating the parental rights of K.J.G. is reversed, and that matter is remanded to the trial court for the reinstitution of juvenile proceedings relative to the minor children B.O.G. and D.D.G.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

      . Pursuant to Uniform Rules — Courts of Appeal, Rules 5-1 and 5-2, the initials of the parties will be used to protect and maintain the privacy of the minor children involved in this proceeding.

      . Louisiana Children’s Code Article 666 provides, in pertinent part, "Following the adjudication hearing, the court shall immediately declare whether the evidence warrants a child in need of care adjudication.”

      . The judgment of the trial court also terminated tire parental rights of C.G., the parental rights of D.B., and the "Unknown and/or Unidentified Father” of another minor child, B.T.G. These individuals did not appeal; thus, the termination of their parental rights is not presently before this court.

      .Louisiana Children’s Code Article 1015 provides, in relevant part, as follows:
      The grounds for termination of parental rights are:

      (4) Abandonment of the child by placing him in the physical custody of a nonparent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
      (a) For a period of at least four months as of the time of the hearing, despite a diligent search, the whereabouts of the child's parent continue to be unknown.
      (b) As of the time the petition is filed, tire parent has failed to provide significant contributions to the child's care and support for any period of six consecutive months.
      (c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months.
      es) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent's condition or conduct in the near future, considering the child's age and his need for a safe, stable, and permanent home.

      . Louisiana Children’s Code Article 1036 provides, in relevant part, as follows:
      C. Under Article 1015(5), lack of parental compliance with a case plan may be evidenced by one or more of the following:

        (1) The parent’s failure to attend court-approved scheduled visitations with the child.
      (2) The parent's failure to communicate with the child.
      (3) The parent’s failure to keep the department apprised of the parent’s whereabouts and significant changes affecting the parent's ability to comply with the case plan for services.
      (4) The parent’s failure to contribute to the costs of the child's foster care, if ordered to do so by the court when approving the case plan.
      (5) The parent's repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
      (6) The parent’s lack of substantial improvement in redressing the problems preventing reunification.
      (7)The persistence of conditions that led to removal or similar potentially harmful conditions.

      . Louisiana Children's Code Article 1037(B) provides:
      B. When the court finds that the alleged grounds set out in any Paragraph of Article 1015 are proven by the evidentiary standards required by Article 1035 and that it is in the best interests of the child, it shall order the termination of the parental rights of the parent against whom the allegations are proven. The court shall enter written findings on both issues. The consideration of best interests of the child shall include consideration of the child's attachment to his current caretakers.

      . Louisiana Children’s Code Article 1036(D) provides, in relevant part, as follows:
      D. Under Article 1015(5), lack of any reasonable expectation of significant improvement in the parent's conduct in the near future may be evidenced by one or more of the following: (3) Any other condition or conduct that reasonably indicates that the parent is unable or unwilling to provide an adequate permanent home for the child, based upon expert opinion or based upon an established pattern of behavior.


source: Caselaw Access Project

author: SULLIVAN, Judge.

license: Public Domain

text:
    Priscilla EBARE v. CUBIC APPLICATIONS, INC.
    No. 2008-1095.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 2009.

      Dona K. Renegar, Huval, Veazey, Felder & Aertker, Lafayette, Louisiana, for Defendant/Appellant, Cubic Applications, Inc.
    Priscilla Ebare, In Proper Person, Evans, Louisiana, Plaintiff'Appellee.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.
   SULLIVAN, Judge.

| , Cubic Applications, Inc. (Cubic) appeals a judgment rendered by the Office of Workers’ Compensation (OWC) in favor of its employee, Priscilla F. Ebare. For the following reasons, we affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

Cubic contracts with the United States military to organize training sessions with simulated combat environments. During the time relevant to this matter, Ebare was employed by Cubic on a part-time basis as a role-player. According to the disputed claim for compensation, Ebare injured her low back on the evening of February 22, 2004, when she stepped into a hole while working on site with Cubic. Ebare filed a petition for workers’ compensation benefits in the Rapides Parish OWC on July 19, 2004. Therein, she claimed that although she had been rendered temporarily and totally disabled as the result of her injury, Cubic had failed to pay her any temporary total disability benefits (TTD’s) and had arbitrarily and capriciously refused to allow her to see the physician of her choice, Dr. David Delapp. She sought an award of medical benefits and TTD’s, plus penalties and attorney fees.

Trial took place on December 5, 2006. The workers’ compensation judge (WCJ) entered an oral ruling in favor of Ebare on the date of trial; however, no written judgment was signed until May 14, 2008. In the judgment, the WCJ ruled that: Ebare was injured in the course and scope of her employment with Cubic on February 22, 2004; Ebare was a part-time employee of Cubic; Ebare worked an average of 34.18 hours in the full four weeks prior to the accident and earned 12approximately $9.67 per hour resulting in total earnings of $329.99 per week; Ebare was receiving health and welfare benefits in the amount of $2.35 per hour for up to forty hours per week therefore entitling her to an additional $80.21 per week in health and welfare benefits based upon her average hours worked of 34.13; Ebare’s average weekly wage was $410.20 with a resulting compensation rate of $273.46; Ebare is entitled to TTD’s from the date she refused to return to work, April 16, 2004, through the present; Cubic is entitled to a credit for every week in which Ebare received unemployment benefits for a total of a twenty-seven-week credit; Ebare is awarded a $2,000.00 penalty for Cubic’s failure to allow her to return to see Dr. Delapp.

Cubic now appeals, assigning the following errors:

1. The trial court erred in finding that an accident occurred based upon Ebare’s testimony alone with no corroborating evidence, when Ebare failed to seek medical treatment for over a month after the alleged accident, continued to work full-duty for a month after the alleged accident, and had sought treatment seven months before for similar complaints.

2. The trial judge erred in awarding Ebare TTD’s when no physician removed her from work; she was released to light-duty work by her treating physician which Cubic accommodated; Cubic approved all treatment recommended by the physicians, some of which she refused; and, Ebare refused to return to the modified position.

3. Cubic was reasonable in obtaining an opinion from its orthopaedist regarding the relation of Ebare’s complaints to an alleged accident verses her pre-existing degenerative condition before paying for continued medical treatment [and thus the trial court erred in awarding Ebare $2,000.00 in penalties for Cubic’s failure to allow her to return to Dr. Delapp].

DISCUSSION

The Louisiana Supreme Court set out the standard of review to be employed in workers’ compensation cases in Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, pp. 7-8 (La.7/1/97), 696 So.2d 551, 556 (citations omitted):

|,sFactual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. In applying the manifest error — clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.

“The determination of coverage is a subjective one in that each ease must be decided from all of its particular facts.” Jackson v. Am. Ins. Co., 404 So.2d 218, 220 (La.1981). A worker bringing a compensation action against her employer bears the burden of proving, as a threshold requirement, that she suffered “personal injury by accident arising out of and in the course of [her] employment.” La.R.S. 23:1031(A); Bruno v. Harbert Int’l Inc., 593 So.2d 357 (La.1992). The word “accident” as used in La.R.S. 23:1031 is defined as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La. R.S. 23:1021(1).

Did an injury producing on-the-job accident occur?

In Bruno, 593 So.2d at 360-61 (citations omitted), the Louisiana Supreme Court noted that, while “Louisiana courts view the question of whether there was an accident from the worker’s perspective!,] ... the worker’s burden of proof is not relaxed. Rather, as in other civil actions, the plaintiff-worker in a compensation action has the burden of establishing a work-related accident by a preponderance of the evidence.” Regarding the claimant’s burden of proof, the Bruno court went on to state:

A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident.

14Id. at 361. In addition, this court has held that the existence of a pre-existing condition alone does not foreclose the receipt of workers’ compensation benefits where there is evidence that the on-the-job accident aggravated and accelerated the claimant’s pre-existing condition. Bush v. Avoyelles Progress Action Comm., 07-686 (La.App. 3 Cir. 10/31/07), 970 So.2d 63.

Cubic asserts that the trial court erred in finding that an accident occurred based upon Ebare’s testimony alone because her testimony was not corroborated by any evidence and because other discrediting evidence exists. Cubic claims that the following factors cast doubt upon the reliability of Ebare’s testimony: Ebare’s claimed accident was unwitnessed; Ebare did not seek medical treatment for her alleged injuries until over one month after the accident allegedly occurred, during which time she continued to work without complaint; Ebare had a pre-existing degenerative condition in her back for which she had sought medical treatment approximately seven months prior to her alleged accident; Ebare was suffering from severe depression since her earlier divorce and this condition was a factor in her health and her stability in the workplace.

Before issuing his oral ruling, the WCJ stated that he found Ebare to be “a very, very nice person” who was “very straightforward in [her] responses to all the questions.” He found that Ebare had an accident on February 22, 2004 and noted that when she sought treatment with Dr. David Delapp, an orthopaedist, on March 25, 2004, she had been diagnosed with acute lumbar sprain/strain. The WCJ observed that Dr. Delapp’s records from Ebare’s first visit noted that she had a history of degenerative joint disease. He referred to Dr. Delapp’s note from Ebare’s next visit on April 27, 2004, where Dr. Delapp wrote that an MRI was needed to further Devaluate Ebare’s continued pain that had been unresponsive to medications and physical therapy. That note went on to state that he had discussed with Ebare his belief “that more than likely she may end up with a chronic problem with which we are going to have to help her.” The WCJ noted that the physician who rendered a second opinion as to Ebare’s condition at Cubic’s request, Dr. James Perry, also an orthopaedist, agreed that a lumbar MRI was needed. He further noted that in an August 9, 2004 letter, Dr. Perry stated his impression that Ebare “had a posttraumatic aggravation of preexisting condition that caused her to become symptomatic.”

In Guilbeaux v. Martin Mills, Inc., 93-1359 (La.App. 3 Cir. 5/4/94), 640 So.2d 472, writ denied, 94-1444 (La.9/23/94), 642 So.2d 1291, the claimant felt a sharp pain while cutting fabric at her job. Although she immediately reported her discomfort to her instructor and several coworkers, she continued to work and did not inform her employer that she suffered a work-related accident until approximately three months after the incident, when her doctor told her that the work-related incident was the source of her injury. In reversing the WCJ’s finding that Guilbeau had not suffered a work-related accident, we stated that the claimant “should not be barred from recovery because she did not realize or diagnose the full extent of her injury immediately after it happened. Nor should she or any other worker be penalized for trying to work as much as he or she can, despite the pain.” Id. at 476. See also Wackenhut Corr. Corp. v. Bradley, 96-796 (La.App. 3 Cir. 12/26/96), 685 So.2d 661.

In addition to the facts noted by the WCJ, we also find the following information to be important. Although no one witnessed Ebare step into the hole, she testified that because Cubic required that its employees report all injuries, she | ¿informed her work group leader, Mae Zolaesque, about her injury and Ms. Zolaesque had filed a report. Although no such report is in the record, Cubic did not dispute that such a report had been prepared. Ebare stated that the reason she was able to keep working after her injury was because she was fortunate enough to have a light schedule with only a few scenarios that included her character and because of the medication that she was taking. She explained that she was not “a doctor person” and that she had hoped that she had just pulled something and that she would get over it soon.

The WCJ obviously found Ebare to be a credible witness, an observation that we will not second guess. After having reviewed the record in its entirety, we find that the WCJ did not err in his determination that Ebare had shown by a preponderance of the evidence that she suffered an injury-producing accident in the course and scope of her employment with Cubic. Cubic’s first assignment of error lacks merit.

Did the WCJ err in awarding Ebare TTD’s?

This court explained a claimant’s burden of proof regarding TTD’s in Gibson v. Shaw Global Energy Services, 04-547, p.6 (La.App. 3 Cir. 10/27/04), 885 So.2d 707, 712, unit denied, 04-2920 (La.2/4/05), 893 So.2d 876, stating:

In order to prove entitlement to temporary total disability benefits!),] ... a claimant must demonstrate by clear and convincing evidence that he is physically unable to engage in any employment, including working while in any pain. La.R.S. 23:1221(l)(c) and (2)(c). Disability is a question of fact.

As explained by the first circuit in Bonvillain v. Preferred Industries and LWCC, 04-849, p. 13 (La.App. 1 Cir. 5/27/05), 917 So.2d .1, 8, “[t]he issue of disability within the framework of the workers’ compensation law is a legal rather |7than a purely medical determination. The issue of disability is determined with reference to the totality of the evidence, including both lay and medical testimony.”

Cubic contends that the WCJ erred in concluding that Ebare proved that she was entitled to TTD’s because: no physician removed her from work; she was released to light-duty work by her treating physician which Cubic accommodated; Cubic approved all treatment recommended by the physicians, some of which she refused; and because Ebare refused to return to the'modified position.

In finding that Ebare had proved her entitlement to disability payments by clear and convincing evidence, the WCJ noted that the employer has a duty to investigate a claimant’s ability to work and cannot rely on an earlier medical report authorizing the claimant to perform light-duty work when the employer has subsequent medical information that indicates an ongoing problem and the need for continuing treatment. Referring to this court’s decisions in Warren v. Maddox Hauling; 02-738 (La.App. 3 Cir. 12/4/02), 832 So.2d 1082, writ denied, 03-4 (La.4/21/03), 841 So.2d 791; Foster v. Liberty Rice Mill, 96-438 (La.App. 3 Cir. 12/11/96), 690 So.2d 792; and Pickett v. Stine Lumber Co., 93-1534 (La.App. 3 Cir. 6/1/94), 640 So.2d 769, the WCJ noted the proposition that when a claimant, either at the time of trial or at the time of nonpayment of benefits, is still undergoing testing and treatment with an “indefinite recovery period,” she is entitled to recover TTD’s.

Anticipating that Cubic might argue that there was no objective evidence that Ebare had a disabling condition because no physician had ever stated as much, the WCJ reiterated that the employer has the duty to investigate a claimant’s disability status. He added that Cubic’s choice of physician, Dr. Perry, noted that Ebare had radiculo-pathy (disease of the spinal nerve roots) requiring treatment. Finally, the |8WCJ made specific mention of the fact that Cubic had not asked Dr. Perry his opinion regarding Ebare’s disability status.

Cubic contends that this case is more like Thibodeaux v. Cajun Restaurant, 93-1090 (La.App. 3 Cir. 4/6/94), 635 So.2d 522, than any of the cases relied upon by the WCJ. Thibodeaux was injured on December 31, 1990, when he slipped and fell while exiting a walk-in freezer carrying a load of frozen ducks. He initially denied that he had been injured and continued working for over a month after the accident. He was fired in February of 1991 for showing up to work intoxicated, and he never returned to work. He was treated by six physicians for a combined total of at least seventeen office visits. He underwent a multitude of diagnostic tests, including X-rays, an MRI, a CAT scan, a myelogram, a post myelogram CAT scan, a bone scan, and a neurological evaluation. Although he was released to medium work in August 1991, he argued that his disability continued beyond that date. Thibo-deaux’s last visit to any doctor was on July 16, 1992. Following a trial, the WCJ dismissed Thibodeaux’s petition to have his disability benefits extended beyond the date he was released to work. This court affirmed, reasoning that subsequent medical evidence indicating that Thibodeaux may have had several herniated discs did not reasonably controvert the earlier opinion of his treating physicians that he was not disabled beyond August of 1991.

Cubic argues that because it modified Ebare’s duties after Dr. Delapp released her to light-duty work on March 25, 2004, and because Ebare did not return to the modified position offered her, the WCJ erred in awarding her TTD’s. Cubic’s argument is flawed. Dr. Delapp’s release came after Ebare’s initial visit to him. It was not until Ebare’s second visit with him that he recommended that she undergo |nan MRI because the prescribed medication was not alleviating her continued pain and because her pain was, in fact, increasing due the physical therapy that he had prescribed. Cubic never revisited the issue of Ebare’s ability to work despite the fact that her condition had become worse, as noted in Dr. Delapp’s note of April 27, 2004, and despite the fact that the MRI, which was performed on June 14, 2004, showed that she had several bulging lumbar discs and significant spinal stenosis (narrowing of the spinal cord). Given the updated picture of Ebare’s medical condition and Cubic’s failure to inquire about what effect that picture would have on her ability to perform her job, Cubic’s insistence that it offered Ebare a position modified to her condition is disingenuous at best.

Unlike the situation in Thibodeaux, Ebare was not treated by a multitude of physicians nor is there an abundance of medical records in this case. Nevertheless, based upon our review of the scant medical evidence coupled with the forthright testimony of Ebare as to her continued pain, we conclude that the WCJ had a reasonable basis upon which to conclude that Ebare had proven by clear and convincing evidence that she was entitled to receive disability payments. Accordingly, the WCJ’s award of TTD’s was not manifestly erroneous, and Cubic’s second assignment of error is without merit.

Did the WCJ err in awarding Ebare penalties for Cubic’s failure to authorize a visit to Dr. Delapp in July of 2004?

A decision by a WCJ on whether to impose penalties and attorney fees is a question of fact that will not be disturbed on appeal absent manifest error. Bush, 970 So.2d 63.

ImCubic asserts that its delay in authorizing Ebare’s July 2004 request to return to her treating physician, Dr. Delapp, was reasonable. In light of Ebare’s pre-exist-ing condition, Cubic contends that its decision to obtain an opinion from its physician, Dr. Perry, as to whether Ebare’s complaints were caused by the work-related accident or by her pre-existing condition, was not arbitrary or capricious. Citing Smith v. Town of Olla, 07-384 (La. App. 3 Cir. 10/3/07), 966 So.2d 1165, Cubic submits that it approved the appointment with Dr. Delapp within one month of Ebare’s request, well within the sixty-day delay allowed by the law. ■ Further, Cubic points out that Ebare never kept her appointment with Dr. Delapp after it had been approved.

Disagreeing, the WCJ ruled that because nothing in Dr. Perry’s records indicated that Ebare was not in need of further medical care, Ebare was entitled to receive additional treatment from her chosen physician which Cubic could not deny, thus entitling Ebare to a $2,000.00 penalty.

We conclude that Cubic acted reasonably in investigating the cause of Ebare’s continuing complaints. Given the fact that Cubic’s actions resulted in only a short delay in the approval of Ebare’s follow-up appointment with Dr. Delapp, coupled with the fact that Ebare never did keep her appointment with him once it was approved, we find manifest error in the WCJ’s conclusion that Cubic acted arbitrarily and capriciously in denying Ebare’s request for an appointment with Dr. De-lapp in July 2004. The WCJ erred in equating a short delay in approval of medical treatment to the denial of medical treatment. Accordingly, we reverse that portion of the judgment awarding Ebare a $2,000.00 penalty for Cubic’s delay in allowing her to return to see Dr. Delapp.

_Jj_)DE CREE

For the foregoing reasons, the portion of the judgment awarding Ebare a $2,000.00 penalty is reversed. The judgment is affirmed in all other respects. Costs of this appeal shall be split equally among the parties.

AFFIRMED IN PART AND REVERSED IN PART.

      . We note that while Ebare had previously been represented by an attorney, he withdrew from his representation of her in April of 2006. She did not retain new counsel; thus, she was unrepresented at trial and in this appeal. Ebare has not filed an appellee brief.