author:
AMY, Judge.
      THIBODEAUX, Chief Judge,

text:
    Chrystal CORBELLO v. Kevin BERKEN, et al.
    No. 10-710.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.

      Terry Thibodeaux, Frohn & Thibodeaux, L.L.C., Lake Charles, LA, for Defendant/Appellee, Granite State Insurance Company.
    Mesonie T. Halley, Jr., Charles, LA, for Defendants/Appellees, Allstate Insurance Company, Kevin Berken.
    S. Douglas Busari, Tallulah, LA, Christopher Cameron McCall, Baggett, McCall, Burgess, Watson & Gaughan, Charles, LA, for Plaintiff/Appellant, Chrystal Corbello.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY and BILLY HOWARD EZELL, Judges.
   AMY, Judge.

liThe plaintiff brought suit for injuries and damages she alleges arose when a farming implement being pulled by a truck hit her vehicle. Following trial, the jury awarded the plaintiff $660.00 in past medical expenses and $2,800.00 in past lost wages. The plaintiff appeals, seeking additional damages. For the following reasons, we amend the underlying judgment to include an award for general damages and affirm as amended.

Factual and Procedural Background

The plaintiff, Chrystal Corbello, instituted this matter seeking damages for injuries she alleges resulted from an August 26, 2006 accident on a highway outside of Lake Arthur, Louisiana. The plaintiff contends that, as she was proceeding in her Ford F-150 truck, she saw a track pulling farming equipment coming toward her. The farming equipment was identified at trial as a crumblier and, according to testimony, extended the width of the roadway.

In light of the crumblier’s width, the plaintiff testified that she pulled her truck as far to the side of the road as possible. As the roadway at that point had only a partial shoulder, she stopped her truck in order the allow the crumblier to pass.

Ms. Corbello contends that the crumblier first hit the front of her vehicle and then its side panel. She alleges that the impact knocked the front portion of her truck into the adjacent ditch and that, at that time, she slumped to the floor, striking her knee. The plaintiff alleges that, as a result of this impact, she sustained right knee, neck, and back injuries. She attributes a subsequent knee surgery and complaints to all three areas of her body to the accident. She also claims that she is now unable to work.

|2Ms. Corbello named Kevin Berken, the driver of the other vehicle, his personal insurer, and Granite State Insurance Company (Granite), the insurer of the truck driven by Mr. Berken, as defendants. Mr. Berken did not deny the occurrence of the accident, but contested the extent of the impact as well as Ms. Corbello’s injuries.

Prior to trial, Mr. Berken, in his individual capacity, and his insurer were dismissed from the proceeding due to a settlement. Thus, Granite and Mr. Berken, insofar as he was an insured under the Granite policy, remained in the suit. When the matter proceeded to trial with Granite and Mr. Berken, as a Granite insured, as the only defendants, the parties entered into a stipulation reflecting the $100,000.00 limit of Mr. Berken’s insurance. Thereafter, the parties agreed that there would be no recovery under the Granite policy unless the damages were found to exceed $100,000.00.

The jury determined that Mr. Berken was negligent and that his negligence was a cause of injury. However, it did not award the full damages prayed for by Ms. Corbello. Instead, the jury awarded past medical expenses in the amount of $660.00 and past lost wages in the amount of $2,800.00. The jury made no awards for “past and present physical pain & suffering,” “future physical pain & suffering,” “past mental pain & suffering,” “future mental pain & suffering,” “future medical expenses,” “future lost wages and earning capacity,” “loss of enjoyment of life,” and “disability.” In light of the stipulation regarding the $100,000.00 policy limit, and the limited award made by the jury, the judgment memorializing the verdict dismissed Ms. Corbello’s claim against Granite and Mr. Berken.

Ms. Corbello appeals, asserting that:

I. It was manifest error to not award general damages where there is an award of special damages and objective symptoms.
| aII. It was manifest error to not award the full amount of the past medical bills.
III. It was manifest error [sic] in awarding nothing for future medicals when the evidence was uncon-tradicted that she was still symptomatic and undergoing treatment from this accident.
IY. It was manifest error for the jury to only award $2,800 in past wage loss and nothing for loss of earning capacity.
V. It was manifest error for the jury to make no award for loss of enjoyment of life.

Discussion

Accident

The parties do not dispute that there was an impact between Ms. Corbello’s truck and the crumblier pulled by Mr. Berken’s truck. The dispute, which relates to the damages sought by Ms. Cor-bello, involves the significance of that impact. Ms. Corbello alleges an impact of such significance that it displaced the front portion of her stopped vehicle into the adjacent ditch. She contends that this impact, or fear thereof, caused continuing complaints to her back, neck, and left knee. The knee complaint resulted in her having a knee surgery in June 2009. The pain, the plaintiff argues, has resulted in depression and an inability to work. As stated above, she sought damages for all of these complaints, including medical expenses related to the surgery, treatment from a number of physicians, and future medical treatment.

Ms. Corbello testified that she saw Mr. Berken’s truck approaching on the highway. As the crumblier was extending across the road, she stated that she “pulled over as much as [she] could without being completely in the ditch to give him the |4right of way, and he just kept on coming until, you know, he just tore up my truck.” She stated that “the front end went in the ditch and the back end was still kind of out.” She reasoned that her injuries occurred when, “[o]ut of fear” of the contact with the crumblier, she intentionally slid onto the floor. Ms. Corbello’s boyfriend, Brandon Kibodeaux, testified similarly regarding the impact. Mr. Kibodeaux explained that he had to help Ms. Corbello from the truck. Both Ms. Corbello and Mr. Kibodeaux testified that the impact resulted in the driver’s door having to be pried open. Further, Ms. Corbello explained that the tailgate was knocked from the truck and had to be placed into the truck’s bed.

However, Mr. Berken contends that the impact was minimal. He explained that he saw Ms. Corbello’s truck pulled to the side of the road and that he maneuvered his truck and the crumblier into a position where he felt that he would not contact Ms. Corbello’s truck. Mr. Berken stated that he was traveling at ten miles per hour, “at best.” Mr. Berken denied contact between the crumblier and the front of Ms. Corbello’s truck. He stated that only the crumblier’s bottom disk contacted the side of the truck. Mr. Berken testified that, after the contact between the trucks, Ms. Corbello’s truck was straight and parallel to the road, not in the ditch. Further, he stated that Ms. Corbello did not appear to have “slithered” down in the truck, but that she was in a leaning position to the right. Mr. Berken described the contact between the trucks as a “scraping” rather than an impact.

Mr. Berken’s passenger, Richard Guillo-ry, also testified as to a minimal impact, stating that there was no sound of impact and that, in his opinion, the Berken vehicle was not traveling as fast as the ten miles per hour testified to by Mr. Berken. Mr. | sGuillory also explained that, after the contact, Ms. Corbello’s truck was not in the ditch. Mr. Guillory stated that, when the parties met at a parking lot away from the highway to report the incident, Ms. Corbello was driving, that it did not take her long to arrive at the parking lot, and that he did not see her having difficulty opening her door. Mr. Guillory, as well as Mr. Berken, explained that Ms. Corbello did not report injuries after the accident. Neither did the resulting accident report, compiled by the investigating trooper from the Louisiana State Police, indicate that the plaintiff reported injury.

The jury’s award of damages indicates that the jury favored the version of events offered by Mr. Berken and Mr. Guillory. As will be discussed below, the medical expenses and past lost wages awarded were only a fraction of those that Ms. Corbello sought. The jury’s award generally followed the damages suggested by defense counsel during closing argument and related to approximately two months of treatment for soft tissue injuries and two months of inability to work. The jury very clearly rejected Ms. Corbello’s account of an impact sufficient to have caused the type of injuries alleged. Furthermore, and as will be discussed below, the jury was also presented with photographs of the damage to the truck which it could have viewed as corroborating the defense’s version of a minimal impact. Of course, reasonable evaluations of credibility and reasonable inferences of fact are left to the factfinder and are not to be disturbed by a reviewing court. See Menard v. Lafayette Ins. Co., 09-1869 (La.3/16/10), 31 So.3d 996.

|fiWith this framework in mind, we turn to Ms. Corbello’s assignments regarding damages.

General Damages

Ms. Corbello first questions the jury’s refusal to award general damages given its award of at least a portion of the medical damages and past lost wages. She notes that she reported for a medical evaluation two days after the accident and that she complained of pain almost immediately. However, much of this argument regarding general damages relates to Ms. Cor-bello’s complaints from the time of the accident through the time of trial. As explained above, the jury determined that Ms. Corbello failed to prove that the totality of her complaints was caused by this accident.

Louisiana Civil Code Article 2315(A) provides that, “[ejvery act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” However, the plaintiff must bear the burden of proving not only fault, but causation and damages as well. See Austin v. Abney Mills, 01-1598 (La.9/4/02), 824 So.2d 1137; Brannan v. Wyeth Labs., Inc., 526 So.2d 1101 (La.1988). Typically, a jury’s determination as to the appropriate amount of damages is viewed as a factual finding and is subject to a review for abuse of discretion. Youn v. Mar. Overseas Corp., 623 So.2d 1257 (La.1993). However, in cases like this one in which a factfinder has awarded medical expenses, but has declined to award general damages, the supreme court has clarified that the specific inquiry is “whether the jury’s determination that plaintiff is entitled to certain medical expenses but not to general damages is so inconsistent as to constitute an abuse of discretion.” Wainwright v. Fontenot, 00-0492, p. 8 (La.10/17/00), 774 So.2d 70, 76. If the reviewing court finds an abuse of discretion, the court then conducts a de novo review of the record. Id.

17In Wainwright, 774 So.2d 70, the supreme court found no abuse of discretion in a jury’s determination that the plaintiff sustained medical expenses associated with a child’s medication overdose and overnight hospital stay, but that no general damages were warranted. The supreme court explained that the jury could have reasonably concluded that the brevity of the overdose and hospitalization “resulted in no compensable pain and suffering.” Id. at 77. Therefore, the supreme court found that an award of general damages on appellate review was inappropriate on the record before it.

The present case differs from Wainwright, however. The jury awarded medical damages to Ms. Corbello for approximately two months of treatment for what Dr. Brian Wilder, an internist, determined were soft tissue injuries. Further, given its award for past lost wages, the jury determined that the injuries were sufficient so as to prevent Ms. Corbello from returning to work during the time she was under Dr. Wilder’s care. Dr. Wilder’s testimony indicates that Ms. Corbello reported to him on September 6, 2006, complaining of left arm pain, neck pain, left leg pain, and low back pain. He prescribed an anti-inflammatory, a muscle relaxer, and a pain medication. By Ms. Corbello’s September 20, 2006 visit, her complaints had narrowed to her neck and back and, at the time her of October 4, 2006 visit, Ms. Corbello reported that only her low back pain remained. At that time, Dr. Wilder continued Ms. Corbello’s prescriptions. Finally, at Ms. Corbello’s final visit with Dr. Wilder on October 18, 2006, she again reported low back pain. Dr. Wilder confirmed that his diagnosis for Ms. Corbel-lo’s complaints was cervical and lumbar strain.

Given the jury’s awards of medical expenses and lost wages due to the inability to work, and in light of the medical testimony regarding Ms. Corbello’s complaints |sof pain to Dr. Wilder, we find that the failure to award general damages was an abuse of discretion. Accordingly, and pursuant to the de novo review standard set forth in Waimuright, we award $5,000.00 in general damages to Ms. Corbello for the pain reported between the accident and the time period she was under Dr. Wilder’s care. We decline to make a greater award, as urged by Ms. Corbello, due to the jury’s determination that she only proved entitlement to damages from this period of time.

Medical Expenses

Ms. Corbello next contends that the jury erred in not awarding the full amount of both past and future medical expenses. However, this again relates to Ms. Corbello’s contention that she established that all of her complaints, including her knee injuries, resulted from the subject accident. Simply, the jury determined that Ms. Corbello failed to prove that the accident caused the totality of the claimed medical expenses.

The $660.00 awarded in past medical expenses reflects the expense for a $100.00 visit to Welsh Family Practice Clinic two days after the accident and $560.00 in expenses related to her treatment with Dr. Wilder. As stated above, these visits related to what were diagnosed as soft tissue injuries. Specifically, Ms. Corbello did not register right knee injury during these visits. Although the report from the Welsh clinic lists a crepitus right knee, arguably under the exam portion of the record, the report indicates that Ms. Cor-bello complained only of shoulder, neck, and lower back pain. This is consistent with Dr. Wilder’s accounting of Ms. Cor-bello’s visits and his denial that she reported pain in the left knee. Furthermore, and although Ms. Corbello denied having preexisting knee pain, the jury was also presented with a 2004 employment questionnaire in which she stated that she had “arthritis in knee | fright).” Although Ms. Corbello testified that she self-diagnosed arthritis at that time, that her knee pain resolved, and that she had not reported to a doctor for that condition, the jury could have rejected this explanation.

Additionally, and although it is unquestioned that Ms. Corbello registered knee complaints after she left Dr. Wilder’s care and eventually underwent a procedure to improve her knee’s condition, the jury was not required to find that the accident caused these subsequently reported knee problems in light of the period immediately following the accident in which she did not make such complaints to her physician. While subsequent treating physicians opined that her knee complaints were likely precipitated by this accident or by trauma to the knee, these opinions were based on Ms. Corbello’s history of the accident immediately preceding the pain.

Accordingly, we find no abuse of discretion in the jury’s limitation of medical expenses to Ms. Corbello’s care at the Welsh Family Practice Clinic and with Dr. Wilder.

This assignment lacks merit.

Wages

Ms. Corbello next contends that the jury erred in awarding only $2,800.00 in past lost wages. Instead, she contends that, based on a forty-hour week at an earning rate of $8.00 per hour, she “had a past loss of earnings from the date of accident to date of trial of $55,543.00.” She also contends that the evidence dictates an award of $498,036.00 for loss of earning capacity given her pain manage-merit physician’s opinion that she is unemployable.

As explained in Boyette v. United Services Automobile Association, 00-1918 (La.4/3/01), 783 So.2d 1276, a plaintiff seeking to prove actual wage loss must | mpositively demonstrate he or she would have been earning wages but for the accident in question. With regard to past lost wages, we do not find that the jury was clearly wrong in limiting Ms. Corbello’s damages to $2,800.00. This award reflected the jury’s determination that Ms. Corbello sustained only soft tissue injuries from this accident. As Ms. Corbello’s testimony and evidence regarding her inability to work collapsed her knee injury with these soft tissue injuries, the jury was not clearly wrong in limiting her lost wages to that period of time she treated with Dr. Wilder and not awarding further damages for past lost wages or for loss of earning capacity.

This argument lacks merit.

Loss of Enjoyment of Life

In her final assignment, Ms. Corbello contends that the jury erred in failing to award her damages for loss of enjoyment of life. She points to evidence regarding her inability to participate in sports and her diminished mental and emotional status due to her injuries. As with the assignments, this evidence relates to the effects of all of Ms. Corbello’s claimed injuries.

However, we note that the jury verdict sheet separated the components of general damages, listing the individual elements of physical pain and suffering, mental pain and suffering, and loss of enjoyment of life. This serves as the basis for her urging that a separate award should have been made for loss of enjoyment of life. Yet, Ms. Corbello’s first assignment of error generally addresses the jury’s failure to award “general damages.” We, thus, addressed general damages collectively in discussion of the first assignment and have made a $5,000.00 award in this regard. We do not view this case as one that requires separating out an award for loss of enjoyment of life, as proposed by Ms. Corbello’s final assignment of error as it would | nbe duplicative of the elements of the general damages we have awarded above. See McGee v. AC and S, Inc., 05-1036 (La.7/10/06), 933 So.2d 770.

This assignment lacks merit.

DECREE

The trial court’s judgment is amended to include a $5,000.00 award for general damages. We recast the judgment, in part, as follows:

In accordance with the verdict rendered by the jury and the evidence in this matter and as amended by the Louisiana Court of Appeal, Third Circuit, to include an award for general damages in the amount of $5,000.00;
IT IS ORDERED, ADJUDGED AND DECREED that judgment be entered for defendants, Kevin Berken and Granite State Insurance Company, dismissing all claims of Chrystal Corbello with prejudice at plaintiffs costs.

The judgment is affirmed as amended. The appellant, Chrystal Corbello, failed to prove damages in excess of the $100,000.00 policy limit of the underlying policy. As such, she failed to prove her entitlement to recover under the policy issued by the appellee in this case, Granite State Insurance Company. Accordingly, all costs of this proceeding are assessed to the appellant, Chrystal Corbello.

AFFIRMED AS AMENDED.

THIBODEAUX, Chief Judge, concurs.

THIBODEAUX, Chief Judge,

concurring.

1,1 concur, but would increase the general damages to $20,000.00.

      . The record and briefs refer inconsistently to the equipment as either a "crumblier” or a "crumbler.” For purposes of this opinion, we use the transcript's term of "crumblier.”

      . Ms. Corbello's assignments each address various types of damages. However, the jury's finding as to the nature of the accident itself is apparent from its limited award of damages. We find that it is necessary to use this determination as a starting point for our analysis of the assignments.

      . Mr. Kibodeaux explained that when Ms. Corbello was on the floor, "[s]he was kind of at an angle where the hump's at on the floorboard.”

      . Ms. Corbello’s attorney’s closing argument suggested various elements of damages, in-eluding: Past medical expenses — $68,220.98; future medical expenses — $690,543.00; past loss of earnings — $55,543.00; future loss of earnings — $498,036.00; past pain and suffering-$150,000; and future pain and suffering— $250,000.00.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    Willie Mae SCOTT v. LAFAYETTE CONSOLIDATED GOVERNMENT-RISK MANAGEMENT DIVISION.
    No. 10-716.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.

      Bryan David Scofield, James Thomas Rivera, Scofield & Rivera, LLC, Lafayette, LA, for Defendant/Appellee, Lafayette Consolidated Government, Risk Management Division.
    Chuck David Granger, David J. Meche, Opelousas, LA, for Plaintiff/Appellant-Willie, Mae Scott.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   THIBODEAUX, Chief Judge.

| Willie Mae Scott suffered injuries when the chime pull cord on a bus owned and operated by Lafayette Consolidated Government (“LCG”) came loose and struck her near her eye. Ms. Scott argues that LCG had or should have had notice of the poor condition of the chime pull cord and the attached clamp that served to secure the cord. Ms. Scott also argues that although LCG is a public entity, it operates a public bus system, thereby making it a “common carrier” and subjecting it to a higher duty of care. The trial court granted LCG’s motion for summary judgment, and Ms. Scott appeals. For the following reasons, we affirm the judgment of the trial court.

I.

ISSUES

We must decide whether:

(1) LCG had actual or constructive notice of the pull cord’s defect;
(2) LCG is a common carrier, thereby subjecting it to a higher duty of care; and,
(3) the existence of other alleged incidents of pull cord failure creates a genuine issue of material fact.

II.

FACTS AND PROCEDURAL HISTORY

LCG owns and operates public transit buses in the city of Lafayette. The buses are visibly inspected by the drivers at each shift change, and a full physical maintenance inspection is performed every 12,000 miles. Specifically, the pull cords, the part at issue in this case, are inspected each day to ensure that the chime operates, and the cords are continually tested throughout the day when pulled by passengers. At the 12,000 mile inspection, the pull cords are inspected for “operation and | ¡Junction.” The mechanics physically pull on the cables and check the clasps holding the cable to ensure that the chime and light work. LCG does not test the amount of weight the pull cords can withstand.

In August 2006, Ms. Scott was a passenger on an LCG bus when she suffered an accident. Specifically, Ms. Scott was sitting at or near the front of the bus when another passenger pulled the cord to signal a stop. The cord came loose from the bus and struck Ms. Scott near her eye, requiring her to seek medical treatment. Ms. Scott testified that prior to the accident, she did not notice anything unusual about the bus or that it needed repairs. She also testified that she was unaware of any complaints concerning the pull cord on the bus. Following the accident, LCG examined the pull cord and repaired it. LCG’s mechanic noted that the cord itself did not break and was not frayed. Instead, the pull cord came loose from the cable vice, which is similar to a clamp. The mechanic was able to place the bus back into service using the same cord.

After Ms. Scott’s accident, LCG conducted an investigation and sought information about other accidents, if any, involving pull cords. Regina Melton, Transit Assistant Supervisor for LCG, recalled one incident in the previous twenty-six (26) years where a pull cord broke, but she could not remember the date or the circumstances surrounding the event. Gillig, the manufacturer of the bus Ms. Scott rode, reported no other incidents involving pull cords on any of its other buses. LCG’s investigation revealed two other incidents where pull cords came loose, but those incidents occurred after Ms. Scott’s accident and involved buses produced by a different manufacturer.

Ms. Scott filed suit against LCG seeking damages sustained as a result of the accident. LCG moved for summary judgment, asserting that Ms. Scott could |snot prove actual or constructive notice of the defect pursuant to La.R.S. 9:2800. The trial court granted LCG’s motion, and Ms. Scott appeals.

III.

LAW AND DISCUSSION

Standard of Review

“When an appellate court reviews a district court judgment on a motion for summary judgment, it applies the de novo standard of review, ‘using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.’ ” Gray v. Am. Nat. Prop. & Cas. Co., 07-1670, p. 6 (La.2/26/08), 977 So.2d 839, 844 (quoting Supreme Serv. & Specialty Co., Inc. v. Sonny Greer, 06-1827, p. 4 (La.5/22/07), 958 So.2d 634, 638). “The judgment sought 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 mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B).

Constructive Notice

To prevail on her claim, Ms. Scott must prove that LCG had actual or constructive notice of the alleged vice or defect with the pull cord. Here, Ms. Scott alleges that LCG had constructive notice.

Under La.R.S. 9:2800(D), “[Constructive notice shall mean the existence of facts which infer actual knowledge.” “A municipal authority is deemed to have constructive notice if the defect existed for such a period of time that by exercise of ordinary care ... the municipal authority must have known of its existence, and ... |4had reasonable opportunity to guard the public from injury by remedy of the defect.” Ambrose v. City of New Iberia, 08-1197, p. 2 (La.App. 3 Cir. 4/1/09), 11 So.3d 34, 37.

Passengers repeatedly used the pull cord in question on the day of Ms. Scott’s accident. No one complained about the functionality of the cord at any time prior to Ms. Scott’s accident. Indeed, Ms. Scott testified that she did not notice anything out of the ordinary with the bus, and she knew of no complaints about the pull cord. Nothing in the record indicates that LCG had constructive notice of the faulty pull cord.

Despite her own testimony that she observed nothing amiss with the LCG bus on the date of the accident, Ms. Scott alleges that LCG had a duty to do more. Specifically, she asserts that LCG had a duty to conduct tests to ensure that the pull cords on LCG buses could at least withstand a certain level of force or exertion. Ms. Scott contends that “[i]t is simply negligent for a common carrier to not test these cords and clamps to ensure that they can at least withstand a certain, standard, predetermined level of force or exertion.” Ms. Scott fails to quantify, however, the amount of force or exertion a pull cord should be able to withstand. We disagree with Ms. Scott’s reasoning.

Notably, this court has stated that “[l]ack of plan for periodic inspections does not impute constructive knowledge.” Laird v. City of Oakdale, 04-767, p. 7 (La.App. 3 Cir. 11/10/04), 886 So.2d 1262, 1267. Moreover, the supreme court addressed this issue in detail in Jones v. Hawkins, 98-1259, 98-1288 (La.3/19/99), 731 So.2d 216. In Jones, the plaintiffs sought to impose liability on the city of Shreveport for failing to possess a plan to inspect conditions at a particular intersection. The second circuit held that “the trial court committed manifest error |swhen it found a lack of notice of the defect on the City’s part because ‘the absence of any program on the city’s part to inspect and discover the condition implies knowledge.’ ” Id. at 218. In Jones, the supreme court disagreed and explained:

[W]e find we cannot agree with the second circuit’s position that lack of a plan constitutes constructive knowledge of the defect. The definitions of actual and constructive knowledge are facially incompatible with the implication of knowledge from a lack of a plan to inspect. Actual knowledge has been defined as “knowledge of dangerous defects or conditions by a corporate officer or employee of the public entity having a duty either to keep the property involved in good repair or to report defects and dangerous conditions to the proper authorities.” Constructive knowledge is defined by La.R.S. 9:2800 as the existence of facts that infer actual knowledge. The absence of a plan of inspection in no way shows or implies that an employee of the appropriate public entity has actual knowledge of a dangerous defect or condition. Indeed, quite the opposite is true; in the absence of other facts, such as recorded complaints about a defect, lack of a plan implies that employees of the public entity have no actual knowledge of dangerous defects or conditions. Thus, holding that lack of a plan infers knowledge effectively eviscerates the notice requirement of La.R.S. 9:2800.

Id. at 220 (citations omitted).

Thus, the supreme court held that the city of Shreveport’s duty to use reasonable care “does not encompass conducting periodic inspections.” Id.

Applying Jones to the facts at hand, nothing on'the bus indicated to LCG that a problem with the pull cord or clamp might exist. Passengers used the pull cord repeatedly before Ms. Scott’s accident, and no one complained about its form or function. Thus, LCG’s lack of a plan to further inspect the pull cord implies that LCG had no knowledge of a potential defect.

Common Carrier

Ms. Scott argues that La.R.S. 9:2800 does not apply and that LCG is subject to a higher standard of care as a common carrier. We disagree. Here, it is | r,clear that La.R.S. 9:2800 and La.Civ. Code art; 2317 control. The supreme court has held that “legislation is the superior source of law which custom cannot abrogate.... ” Unwired Telecom Corp. v. Parish of Calcasieu, 03-732, p. 14 (La.1/19/05), 903 So.2d 392, 403.

Louisiana Revised Statutes 9:2800 is a legislative enactment that controls the liability of state and political subdivisions such as LCG for liability “caused by the condition of things within its care and custody. ...” Here, the “thing” at issue is a public bus. Just because a bus is involved, however, the claim against LCG, a political subdivision, must still be viewed subject to La.R.S. 9:2800. This argument lacks merit.

Other Incidents of Pull Cord Failure

To avoid summary judgment, Ms. Scott attempts to create a genuine issue of material fact by claiming that other bus pull cords failed. Ms. Scott references the testimony of Ms. Melton who recalled one other instance in the last twenty-six (26) years where a pull cord malfunctioned. Ms. Melton, however, was unable to recall when the incident occurred or the circumstances surrounding the event. Thus, it is plausible that the incident referenced by Ms. Melton actually occurred after Ms. Scott’s accident. Similarly, the two other supposed pull cord malfunctions referenced in the record did, in fact, occur after Ms. Scott’s accident. Moreover, the relation of those incidents to Ms. Scott’s accident is tenuous at best because those pull cords were located inside buses produced by a different bus manufacturer, Blue Bird. Thus, a review of the facts reveals that the other incidents referenced by Ms. Scott do not raise a genuine issue of material fact to avoid summary judgment.

_k.iv.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court. Costs of this appeal are assessed against Ms. Scott.

AFFIRMED.


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

text:
    Kenneth DUPLECHAIN, et al. v. Firooz JALILI, et al.
    No. 10-736.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.

      Steven Broussard, Sulphur, LA, for Plaintiff/Appellant-Kenneth, Duplechain, et al.
    John Elliott Baker, Special Assistant Attorney General, Covington, LA, for Defen-dani/Appellee, State of Louisiana.
    Randall Earl Hart, Broussard & Hart, LLC, Charles, LA, for, Plaintiff/Appellant, Kenneth Duplechain, et al.
    Nadia Marie de la Houssaye, Jones, Walker, Waechter, Poitevent, Carrére & Denegre, L.L.P., Lafayette, LA, for Defendant/Appellee, Louisiana Patients’ Compensation Fund.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   THIBODEAUX, Chief Judge.

BThe plaintiffs-appellants, Cynthia Du-plechain, individually and in her capacity as the administratrix of the estate of her minor son, Conner Duplechain, and Kenneth Duplechain (the Duplechains), appeal the denial of their motion for summary judgment. The Duplechains’ motion sought a determination that they were entitled to recover legal interest on medical bills paid by Medicaid through the Louisiana Department of Health and Hospitals (DHH/Medicaid). The defendant-appellee from whom the interest is sought in this matter is the Louisiana Patients’ Compensation Fund (PCF).

The trial court found that the Duple-chains were required to assign their recovery rights to DHH/Medicaid and that they had no right to recover legal interest on the medical payments made by DHH/Medicaid. Finding that the trial court erred as a matter of law in interpreting the applicable statutes, we reverse the judgment of the trial court and grant summary judgment in favor of the Duplechains.

I.

ISSUE

We must decide whether the trial court erred as a matter of law in denying summary judgment to the plaintiffs on the issue of whether legal interest is due on medical bills paid by Medicaid.

II.

FACTS AND PROCEDURAL HISTORY

In December of 2003, five-month-old Conner Duplechain was severely injured when Dr. Firooz Jalili, a pediatric gas-troenterologist, perforated Conner’s esophagus during a routine endoscopy. Dr. Jalili mistakenly inflated Conner’s me-diastinum and blocked blood flow to Conner’s heart, putting him in cardiac arrest 1 ¡.and leaving him with a severe and irreversible hypoxic brain injury. Seven years later, Conner is fed through a tube, is cortically blind, cannot walk, talk, or sit up, and his condition is permanent.

The Duplechains filed a claim with the PCF. The Medical Review panel found in favor of Dr. Jalili. The Duplechains filed suit, and DHH/Medicaid filed an intervention for the $96,070.32 that it had paid in medical bills on behalf of Conner. Five years later, after the Duplechains had accumulated litigation expenses estimated at over $120,000.00, Dr. Jalili settled his liability in the case for $100,000.00. The Duplechains sought all remaining damages from the PCF, with full legal interest on their damages. They entered into a partial settlement with the PCF on all issues except (1) past custodial care costs, plus interest, and (2) the legal interest on the portion of damages paid by Medicaid.

On May 19, 2009, a judgment was rendered granting Mrs. Duplechain the authority to settle the claims against Dr. Jalili and the PCF for $1,020,000.00. The PCF funded the settlement, including the $96,070.32 Medicaid lien. The PCF paid legal interest on $400,000.00 in general damages and on $279,999.88 in medical bills paid by an ERISA lienholder, Blue Cross/Blue Shield of Georgia.

The Duplechains negotiated with DHH/Medicaid for a lien reduction and ultimately paid Medicaid $86,463.29. Hence, the Medicaid lien has been reimbursed, and DHH/Medicaid is not making a claim for any additional funds.

The PCF ultimately settled with the Du-plechains for the past custodial care, plus interest, and the only claim remaining for trial was the legal interest on the Medicaid-paid damages of $96,070.32. The Du-plechains filed a motion for summary judgment on that issue, and the trial court entered a judgment denying their motion in February of 2010. The Duplechains filed this appeal on the denial of their motion |sfor summary judgment on the issue of legal interest on Medicaid-paid damages. This is a matter of first impression. Finding no support for the trial court’s judgment, and finding error in the trial court’s interpretation of the applicable statutes, we reverse for the reasons more fully set forth below.

III.

LAW AND DISCUSSION

Standard of Review

When an appellate court finds that a reversible error of law was made in the trial court, it must conduct a de novo review of the entire record. Rosell v. ESCO, 549 So.2d 840 (La.1989). Appellate courts perform a de novo review upon a motion for summary judgment. Guilbeaux v. Times of Acadiana, Inc., 96-360 (La.App. 3 Cir. 3/26/97), 693 So.2d 1183, writ denied, 97-1840 (La.10/17/97), 701 So.2d 1327.

The Trial Court’s Judgment

The Duplechains contend that the trial court erred as a matter of law when it ruled that legal interest does not accrue in favor of the plaintiffs on medical bills paid by Medicaid. We agree. In its judgment denying the plaintiffs’ motion for summary judgment, the trial court stated:

This court finds that legal interest in favor of the Plaintiffs is not earned on the amounts paid by Medicaid. Because the statutes governing Medicaid require the Plaintiffs to assign recovery rights to the Louisiana Department of Health and Hospitals, Plaintiffs have no right to recover legal interest on such sums.

The trial court’s judgment reflects an erroneous interpretation and application of the Medicaid statutes. DHH/Medicaid was reimbursed in this case; its lien or privilege was paid. Therefore, neither the right to recovery by DHH/Medicaid, nor the assignment of rights by the plaintiffs is at issue.

14More specifically, La.R.S. 46:446(A) provides DHH/Medicaid with a right of intervention and a right of recovery against liable third parties for amounts paid by Medicaid on behalf of the tort victim. Likewise, La.R.S. 46:446(F) creates a privilege in favor of Medicaid to be reimbursed its payments out of any recovery the tort victim collects from a third person or insurance company, whether by judgment or settlement or tender. In general, this means that Medicaid gets reimbursed before the tort victim takes ownership of the proceeds of his or her claim. However, the privilege is not exclusive, nor is it first-ranked, as La.R.S. 46:446(F) specifically places the attorney’s privilege over that of Medicaid. Additionally, La.R.S. 46:446(H) holds third parties, insurers, and attorneys responsible to DHH/Medicaid for reimbursement of the lien for the amount of the privilege.

The Medicaid statutes further provide that where Medicaid has paid for health care items or services furnished to an individual, and a third party has legal liability to make those payments, “the state [DHH] is deemed to have acquired the rights of the individual to payment by any other party for those health care items or services.” La.R.S. 46:446.2(D). Additionally, La.R.S. 46:153(E) provides that the Medicaid recipient “shall be deemed to have made an assignment to the department [DHH] of his right to ... benefits owed ... by any third party.” Hence, there is a statutory assignments of rights to DHH/Medicaid until Medicaid is reimbursed, but the assignment of rights has nothing to do with legal interest owed by the tortfeasor.

In this case, the Duplechains satisfied the Medicaid lien and extinguished their assignment of rights to DHH/Medicaid when their attorney wrote a check for $86,463.29 to DHH/Medicaid on June 5, 2009, before the plaintiffs received the funds from PCF in July 2009. DHH/Medicaid is not asserting a claim for legal interest or additional funds in this case, and any assignment or obligation by 15the plaintiffs has been fulfilled. Accordingly, as indicated above, neither DHH/Medie-aid’s recovery rights nor the plaintiffs’ assignment of rights is at issue.

The trial court concluded that any interest owed on the Medicaid payment would be owed to DHH, not to the plaintiffs. This is also error. Louisiana Revised Statutes 46:446.6(B)(2) (emphasis added) provides that any health insurer must “[ajccept the department’s [DHH’s] right of recovery and the Medicaid recipient’s assignment to the department of any right to payment from the health insurer for an item or service for which payment has been made under the [Medicaid] Program.” The recovery of Medicaid benefits from a recipient’s settlement of a tort claim is limited to the medical expenses allocated in the settlement. Weaver v. Malinda, 07-708 (La.App. 5 Cir. 2/19/08), 980 So.2d 55. Weaver relied upon Arkansas Department of Health and Human Services v. Ahlborn, 547 U.S. 268, 126 S.Ct. 1752, 164 L.Ed.2d 459 (2006).

In Ahlbom, the United States Supreme Court held that the federal Medicaid law did not authorize an Arkansas state agency to assert a lien on a Medicaid recipient’s settlement with third-party tortfeasors in an amount exceeding the portion of the settlement representing medical expenses. The court held that 42 U.S.C. § 1396p, the federal anti-lien provision, affirmatively prohibited the state Medicaid agency, the Arkansas Department of Health and Human Services (ADHS), from asserting a lien for a larger amount.

The Ahlbom court further found that the federal third-party liability provisions of the Medicaid statute, 42 U.S.C. § 1396k(a)(l)(A), required only that recipients “assign the State any rights ... to payment for medical care from any third party,” not that they assign rights to other forms of payment. Further, where the tortfeasor settled for only one-sixth of Ahl-born’s overall damages, and the state | (¡stipulated that only $35,581.47 of the settlement was for medical expenses, the state was limited to that amount, even though Medicaid had paid $215,645.30 to providers. The court found that the requirement of 42 U.S.C. § 1396k(b), that Medicaid be reimbursed before the plaintiff, did not show that Medicaid must be paid in full from any settlement.

While Weaver and Ahlbom did not address the third party’s legal liability for interest, those cases support our finding that the trial court erred at trial in stating that any legal interest owed should be paid to Medicaid. We have been unable to find a statute in the Medicaid scheme for recovery by Medicaid of legal interest owed to the recipient/plaintiff by the tortfeasor or any other third party.

Legal Interest Under La.R.S. 13:1203

The Duplechains assert that La. R.S. 13:4203 is applicable to the question of legal interest in all tort cases. It provides: “Legal interest shall attach from date of judicial demand, on all judgments, sounding in damages, ‘ex delicto’, which may be rendered by any of the courts.” The cases interpreting La.R.S. 13:4203 emphasize that an award of legal interest in tort cases is not discretionary with the court. Turner v. Ostrowe, 01-1935 (La.App. 1 Cir. 9/27/02), 828 So.2d 1212, writ denied, 02-2940 (La.2/7/03), 836 So.2d 107; Odom v. City of Lake Charles, 00-1050 (La.App. 3 Cir. 1/31/01), 790 So.2d 51, writ denied, 01-1198 (La.6/22/01), 794 So.2d 787. Legal interest on judgments for damages in tort cases is an operation of law. The interest attaches automatically until the judgment is paid regardless of whether it was prayed for in the petition or mentioned in the judgment. Stewart v. Ice, 07-871 (La.App. 4 Cir. 4/9/08), 982 So.2d 928, writ denied, 08-1000 (La.8/29/08), 989 So.2d 101.

Under La.R.S. 13:4203, the date of judicial demand is the date the complaint is filed, not the date of judgment. Byrd v. Hunt Tool Shipyards, Inc., 650 F.2d 44 (5th Cir.1981). When Section 4203 was enacted in 1916, it created a substantive right to such interest in tort plaintiffs. With its enactment, the Louisiana legislature’s primary purpose was to liberalize, not restrict, the existing judicial approach to legal interest in tort cases. American Cyanamid Co. v. Electrical Industries, Inc., 630 F.2d 1123, 1129-30 (5th Cir.1980). There is no exception for Medicaid-paid damages under La.R.S. 13:4203.

In its brief, PCF states that it “does not contest that interest accrues on all tort damages and non-Medicaid medical bills from the date of judicial demand through the date of settlement as is evidence[d] by the fact that the PCF has paid full interest on said damages. Because there is no judgment casting the PCF with interest on amounts paid to Medicaid the [pjlaintiffs’ reliance on [La.jR.S. 13:4203 is misplaced.” These statements are self-contradictory. The PCF admits to having paid legal interest on the other tort damages, which includes the Blue Cross lienholder, and there was no known “judgment” imposing interest on those amounts; yet, PCF seeks to carve out an exception for amounts paid by and reimbursed to Medicaid. As stated above, there is no exception under La.R.S. 13:4203 for Medicaid-paid amounts.

With regard to settlements, as PCF acknowledges, interest is paid on tort damages recovered through settlements. In King v. Illinois National Insurance Co., 34, 473 (La.App. 2 Cir. 2/28/01), 782 So.2d 1104, 1111, writs denied, 01-1244, 01-1245 (La.6/22/01), 794 So.2d 788, Illinois National contended that the fixing of legal interest from judicial demand “on all judgments” under La.R.S. 13:4203 was inapplicable in its case since it had avoided judgment by its pre-trial tender of the policy limits. However, the court found that the long-recognized principle for the assessment of legal interest remained applicable for an insurer’s delay in tendering its policy limits after the filing of suit. Similarly, we have held an insurer arbitrary |sand capricious for failure to accept an offer to settle for the policy limits plus pre-judgment legal interest where there is no real question of liability. See Hodge v. American Fidelity Fire Ins. Co., 486 So.2d 233 (La.App. 3 Cir.), writ denied, 489 So.2d 917 (La.1986).

In the present case, the district court signed a judgment on May 19, 2009, authorizing Cynthia Duplechain, as natural tu-trix of Conner Duplechain, to compromise the claims on the child’s behalf against Dr. Jalili and the PCF for one million twenty thousand ($1,020,000.00) dollars. The judgment also authorized Ms. Duplechain to release the parties and to receive and manage the settlement funds in the manner and form prescribed by law. While this is not a judgment “casting” the PCF with interest, it is a judgment on a settlement in a medical malpractice case, and the statutes provide that pre-judgment interest attaches as a matter of law.

Legal Interest Under La.Code Civ.P. art 1921

The Louisiana Code of Civil Procedure also provides for mandatory legal interest. More specifically, La.Code Civ.P. art. 1921 states: “[t]he court shall award interest in the judgment as prayed for or as provided by law.” The “shall” in article 1921 is mandatory, and the court lacks discretion to deny interest if interest is prayed for or is provided by law. Bickham v. Bickham, 02-1307 (La.App. 1 Cir. 5/9/03), 849 So.2d 707. In cases ex delicto and ex contractu, prejudgment interest is awarded to make an injured party whole by compensating that party for the time-value of money to which that party was entitled, but over which defendant had wrongfully continued to exercise dominion and control while suit was pending. Miller v. ConAgra, Inc., 07-747 (La.App. 3 Cir. 12/5/07), 970 So.2d 1268, ‘writ granted, 08-21 (La.3/7/08), 977 So.2d 915, affirmed in part, reversed in part, 08-21 (La.9/8/08), 991 So.2d 445. All liability insurers owe interest on judgments in tort 13cases, up to their policy limits, from the date of judicial demand. Edwards v. Daugherty, 03-2103 (La.10/1/04), 883 So.2d 932.

PCF is a Liability Insurer Under the Medical Malpractice Act

The PCF cites numerous Medicaid statutes and argues its obligations to DHH/Medicaid as a “health insurer” under the Medicaid Scheme, La.R.S. 46:446.6(A)(2). The PCF, however, is an excess liability insurer under the Medical Malpractice scheme which created it.

More specifically, La.R.S. 40:1299.42(B)(1) provides that the total amount recoverable for all medical malpractice claims “shall not exceed five hundred thousand dollars plus interest and cost.” The $500,000.00 cap does not include future medical care and related benefits, which are provided for under La. R.S. 40:1299.43. Louisiana Revised Statutes 40:1299.43(C) provides that a patient may make a claim to the PCF for future medical care. Louisiana Revised Statutes 40:1299.43(D) specifically states: “Payments for medical care and related benefits shall be paid by the patient’s compensation fund without regard to the five hundred thousand dollar limitation imposed in R.S. 40:1299.42.”

Louisiana Revised Statutes 40:1299.44, entitled, “Patient’s Compensation Fund,” provides that the [PCF] board “shall issue payment” of approved claims within thirty days of its receipt of a certified copy of a judgment, settlement, or arbitration award, in excess of one hundred thousand dollars against a health care provider. La.R.S. 40:1299.44(B). The PCF cannot contest liability when there is a binding settlement for $100,000.00 by the health care provider, either before or after trial. Bijou v. Alton Ochsner Medical Foundation, 95-3074 (La.9/5/96), 679 So.2d 893. A settlement payment by the physician’s insurer triggers the | pliability of the PCF. McDougal v. Blanch, 95-1377 (La.App. 1 Cir. 4/4/96), 672 So.2d 398, writ denied, 96-1129 (La.6/7/96), 674 So.2d 973.

Once a qualified health care provider or its insurer pays $100,000.00 to a medical malpractice victim, the liability of the health care provider is to be considered as admitted and established pursuant to the statute regarding the PCF, and the only contested issue remaining between the victim and the PCF is the amount of the victim’s damages in excess of the amount already paid. Harrison v. Smith, 02-477 (La.App. 5 Cir. 11/26/02), 832 So.2d 1064, writ denied, 03-380 (La.6/27/03), 847 So.2d 1277.

The plaintiffs are alleviated of the duty of proving the standard of care and breach by the health care provider once the provider has paid the statutory limit of $100,000.00 in settlement, which constitutes a statutory admission of liability; the plaintiffs are then merely responsible for proving the extent to which the malpractice caused damages in excess of the statutory limit, thereby making the PCF liable for the balance of the uncompensated damages. Judalet v. Kusalavage, 00-59 (La.App. 3 Cir. 6/21/00), 762 So.2d 1128, writ denied, 00-2240 (La.10/27/00), 772 So.2d 653.

None of the foregoing statutes or jurisprudence provides an exception for Medicaid-paid tort damages, and the Medical Malpractice scheme specifically provides for the payment of legal interest by the PCF on all malpractice recoveries above $100,000.00.

Legal Interest Under the Medical Malpractice Act, La.R.S. W:1299A7(M)

Under the Medical Malpractice Act, La. R.S. 40:1299.47(M) provides: “[l]egal interest shall accrue from the date of filing of the complaint with the board on a judgment rendered by a court in a suit for medical malpractice brought after compliance with this Part.” Pursuant to La.R.S. 40:1299.41(A)(3), the “ ‘Board’ Inmeans the Patient’s Compensation Fund Oversight Board created in R.S. 40:1299.44(D).” Accordingly, the jurisprudence interpreting La.R.S. 40:1299.47(M) specifically holds the PCF liable for interest on the plaintiffs’ damages after the first $100,000.00 paid by the health care provider.

When medical malpractice victims compromised their action by settling claims against qualified providers, they compromised their right to receive legal interest on any amount of damages they might recover in a judgment against the providers, but they did not compromise their right under the Louisiana Medical Malpractice Act to receive legal interest against the PCF on any damage award up to the $500,000.00 cap. See Castillo v. Montelepre, Inc., 999 F.2d 931 (5th Cir.1993). However, in 1991, La.R.S. 40:1299.42 was amended to provide that the medical provider was liable for the first $100,000.00 plus the legal interest on that amount. Accordingly, in Ceasar v. Barry, 04-1383 (La.App. 3 Cir. 2/2/05), 894 So.2d 571, writ denied, 05-606 (La.5/6/05), 901 So.2d 1097, we held the PCF liable to the patient for $400,000.00 out of $500,000.00 plus interest on the $400,000.00 excess judgment. See also, Futch v. Attwood, 97-259 (La.App. 3 Cir. 6/18/97), 698 So.2d 958, writ granted in part, 97-2664 (La.2/6/98), 709 So.2d 721.

Our courts routinely hold that medical malpractice victims and survivors are entitled to legal interest on the entire amount of the judgment, and no exception is made for amounts paid by Medicaid. The Medical Malpractice Act provides that legal interest accrues from the date of the filing of the complaint with the oversight board and that the $500,000.00 cap on damages excludes interest and costs. State Through Dept. of Social Services on Behalf of Harden v. Southern Baptist Hosp., 94-2228 (La.App. 4 Cir. 10/12/95), 663 So.2d 443, writ denied, 95-2751 (La.1/26/96), 666 So.2d 676. The medical provider/defendant is responsible for the first |1¾$100,000.00 plus interest, and the PCF is responsible for all amounts, plus interest, in excess of $100,000.00. See Watkins v. Lake Charles Memorial Hosp., 04-355 (La.App. 3 Cir. 12/15/04), 896 So.2d 130, writ denied, 05-145 (La.4/8/05), 898 So.2d 1279; Patient’s Compensation Fund Oversight Bd. v. Succession of Hedgepeth, 98-1695 (La.App. 1 Cir. 9/24/99), 754 So.2d 1036, writ denied, 99-2962 (La.12/17/99), 752 So.2d 857; Gladney v. Sneed, 32,107 (La.App. 2 Cir. 8/18/99), 742 So.2d 642, writ denied, 99-2930 (La.1/14/00), 753 So.2d 215.

As previously indicated, the PCF acknowledges that it owes legal interest on all other damages for which it is liable, and admits that it paid legal interest on the Blue Cross amounts it covered. However, PCF attempts to carve out an exception for amounts paid by Medicaid, where no exception exists. Those things that the legislature wanted to exclude would be excepted explicitly. Such is not the case here.

Purpose of Legal Interest

PCF argues that legal interest is intended to compensate the plaintiff for money he was deprived of during litigation and that there was no deprivation of funds here. The Duplechains argue that deprivation is not a prerequisite in assessing legal interest because legal interest is paid on future damages. Under the Medical Malpractice Act, La.R.S. 40:1299.48(C) provides that once a judgment is entered or a settlement is reached between a patient and the PCF, and future medical care is agreed upon, the patient may make a claim to the PCF for all future medical care and related benefits made necessary by the malpractice. However, in medical malpractice cases, future medical care is segregated from an overall award, and the interest on future medical benefits is payable from the date of the filing of the complaint or from [ 13the date that the expenses were incurred, whichever is later. Hall v. Brookshire Bros., Ltd., 02-2404 (La.6/27/03), 848 So.2d 559.

The reference to legal interest designed to compensate ultimately victorious plaintiffs for the time value (interest) of funds of which they have been deprived, is based upon the notion that this is money which the plaintiffs could have invested and earned interest on during the pendency of the litigation. See Futch, 698 So.2d 958. However, once an injured plaintiff has to file suit to enforce a right to recovery, legal interest begins to accrue. The fact that Medicaid temporarily paid damages assessed to Dr. Jalili and the PCF does not change the nature of the damages or the plaintiffs right to interest on those damages. In fact, research reveals that legal interest accrues in tort cases, unless the plaintiffs remedy is a non-monetary award. See Scott v. American Tobacco Co., Inc., 04-2095 (La.App. 4 Cir. 2/7/07), 949 So.2d 1266, writs denied, 07-654, 07-662 (La.1/7/08), 973 So.2d 740, cert. denied, 553 U.S. 1094, 128 S.Ct. 2908, 171 L.Ed.2d 842 (2008) (the jury award consisted of a smoking cessation program as the plaintiffs’ remedy for the defendant tobacco companies’ conspiracy to conceal the extent of nicotine addiction, and the non-monetary remedy did not qualify for prejudgment interest).

In opposing the Duplechains appeal and seeking an affirmation of the trial court’s judgment, the PCF argues that Bozeman v. Department of Transportation and Development, 03-1016 (La.7/2/04), 879 So.2d 692, is applicable in this case because it holds that a plaintiff cannot recover amounts written off by a medical provider who has reduced its fees due to Medicaid requirements. We disagree. The only similarity between Bozeman and the present case is that both cases involved Medicaid payments.

| uBozeman had nothing to do with legal interest but rather addressed, as a matter of first impression, the application of the collateral source rule to medical expenses written off or contractually adjusted by health care providers pursuant to the requirements of the Medicaid program. In Bozeman, the deceased motorist’s widow sought to recover the full amount of the medical bills, even though the healthcare providers had written off $266,879.92 of their bills in accepting payment from Medicaid. The Louisiana Supreme Court found previous jurisprudence inconsistent in deciding whether to apply the collateral source rule to Medicaid write-offs. In discussing the three approaches used by other courts, the court in Bozeman rejected the “reasonable value of services” approach which awarded the plaintiff the entire amount of medical expenses that were billed to the plaintiff, including the written-off amounts.

The Bozeman court also rejected the “actual amounts paid” approach which denies the plaintiff the ability to recover the written-off amounts based upon the reasoning that the plaintiff did not incur the written-off amount and an award of that amount would result in a windfall to the plaintiff. The court agreed instead with the reasoning that, if there is to be a windfall, it should enure to the benefit of the injured party and not to the tortfeasor. The court agreed with and cited Griffin v. The Louisiana Sheriff's Auto Risk Assoc., 99-2944, p. 37 (La.App. 1 Cir. 6/22/01), 802 So.2d 691, 715, writ denied, 01-2117 (La.11/9/01), 801 So.2d 376, which stated that the proper focus of the inquiry is “on the nature of the write-offs vis-a-vis the tortfeasor, rather than vis-a-vis the tort victim.” The Griffin court reasoned that the existence or non-existence of an underlying obligation cannot form the basis for applying the collateral source rule to write-offs because the result is a diminution of hsthe tortfeasor’s liability vis-a-vis an insured victim when compared with the same tortfeasor’s liability vis-a-vis an uninsured victim.

After quoting the Griffin court for the above reasoning, the Bozeman court opted to embrace a third approach called the “benefit of the bargain,” which awards the plaintiff the full value of his medical expenses, including the write-off amount, where the plaintiff has paid some consideration for the benefit of the written-off amount. The Bozeman court distinguished Medicaid, a social service health care provider for persons with low income and limited assets, from Medicare, which is healthcare insurance funded by beneficiaries and their employers. The Bozeman court articulated that while care of the nation’s poor is an admirable social policy, “where the plaintiff pays no enrollment fee, has no wages deducted, and otherwise provides no consideration for the collateral source benefits he receives, we hold that the plaintiff is unable to recover the ‘write-off amount.” Bozeman, 879 So.2d at 705.

The court then concluded,

Medicaid recipients are unable to collect the Medicaid “write-off’ amounts as damages because no consideration is provided for the benefit. Thus, plaintiffs recovery is limited to what was paid by Medicaid. However, in those instances, where plaintiffs patrimony has been diminished in some way in order to obtain the collateral source benefits, then plaintiff is entitled to the benefit of the bargain, and may recover the full value of his medical services, including the “write-off’ amount.

Id. at 705-06.

It is clear that the Bozeman holding was narrowly tailored to the facts in that case regarding the recovery of written-off medical bills pursuant to Medicaid payments, and it is equally clear that Bozeman cannot be expanded to deny the Duplechains legal interest on their damages. The Du-plechains are not seeking a recovery of written-off amounts above what Medicaid has paid. In fact, the Bozeman | lficourt’s conclusion that the plaintiffs recovery was limited to what Medicaid paid, supports our determination that Medicaid payments for medical care are special damages recoverable by the plaintiff. Therefore, interest accrues on those damages as well.

Further, while the Bozeman court did not discuss the mandatory reimbursement to Medicaid, it indicated that DHH had failed to intervene and was denied its motion to withdraw funds from the registry of the court. In the present case, Medicaid was reimbursed because the Duplechains hired a lawyer, filed suit, and obtained the Medicaid recovery for DHH/Medicaid. Hence, the Duplechain’s patrimony was diminished, and consideration was paid for the recovery of health care costs.

As we previously stated, Bozeman had nothing to do with legal interest, which is not a damage subject to being written off. In this case, Medicaid paid $96,070.32 to medical providers on the Duplechains’ behalf. Medicaid was reimbursed through the litigation efforts of the Duplechains, as their attorney re-couped that amount from the liability insurer, PCF. Counsel for the Duplechains negotiated a lien reduction with Medicaid for $86,463.29. Due to the Medicaid privilege for the $96,070.32 that Medicaid paid to medical providers, the PCF paid the full amount of the lien with knowledge of the reduction to the Duple-chains, and PCF raises no issue in that regard. Counsel for the Duplechains estimates his expenses for the five years of litigation at over $120,000.00, which is a cost that the Duplechains will bear.

Accordingly, there was more than ample consideration paid for the small lien reduction of $9,607.03. The Medicaid statutes clearly recognize the recovery efforts of the attorney. In fact, the Medicaid scheme at La.R.S. 46:446(F) specifically | i7provides that the attorney’s lien is ranked above that of Medicaid: “The privilege of an attorney shall have precedence over the privilege created under this Section.” In any event, the lien reduction was between the Duplechains and DHH/Medicaid and had nothing to do with the medical provider’s original bill, write-offs, or any amounts above what was paid by Medicaid.

Bozeman is not applicable here because the plaintiffs are not trying to recover the amounts that the medical provider wrote off of its original bill when it accepted $96,070.32 in payment from Medicaid. We have not been made aware of the amount of that write-off because it is not at issue. The plaintiffs are merely trying to recover statutorily-mandated legal interest on their damages, part of which were paid by Medicaid, and which were fully recovered and reimbursed through the efforts and expenses of their attorney, and therefore the plaintiffs themselves.

Medicaid-paid medical expenses are special damages clearly recoverable by the tort victim. The legal interest on those damages is a mandatory compensation to which the plaintiffs are also entitled. We have found no exception for avoiding legal interest because part of the damages were paid by Medicaid, and we know of no other public policy at issue. The Medical Malpractice statute makes it clear that the PCF is not publicly-funded. Louisiana Revised Statutes 40:1299.44, entitled “Patient’s Compensation Fund,” states in pertinent part:

The state recognizes and acknowledges that the fund and any income from it are not public monies, but rather are private monies which shall be held in trust as a custodial fund by the state for the use, benefit, and protection of medical malpractice claimants and the fund’s private health care provider members....

Legal interest is payable on tort damages under La.R.S. 13:4203, under La. Code Civ.P. art. 1921, and under the Medical Malpractice Act at La.R.S. 40:1299.47(M). Neither the statutes nor the jurisprudence interpreting them provide [isan exception for the portion of the plaintiffs damages paid by and reimbursed to Medicaid.

IV.

CONCLUSION

Accordingly, based upon the foregoing, the trial court’s denial of the plaintiffs’ motion for summary judgment is reversed. Legal interest is due and owing from the Patient’s Compensation Fund on the Medicaid-paid portion of the medical damages of $96,070.32. The date of judicial demand in this case is the date that the complaint was filed with the PCF, pursuant to La. R.S. 40:1299.47(M). Costs of this appeal are assessed to the Patient’s Compensation Fund.

REVERSED AND RENDERED.

AMY, J., concurs in the result and assigns separate reasons.

AMY, J.,

concurring in the result and assigning separate reasons.

| Louisiana Revised Statutes 46:446(A) provided the Department of Health and Hospitals with a cause of action for the damages at issue. A judgment reflecting the costs for those damages would have properly included interest under the statutory authority cited by the majority.

However, and also pursuant to La.R.S. 46:446(A), the DHH intervened in the plaintiffs’ case rather than filing suit in its own right. Further, the DHH’s outstanding cause of action for the damages at issue was subsequently extinguished by the satisfaction of the lien by the plaintiffs. Whether the negotiations between the DHH and the plaintiffs included consideration for the interest on the damages became a contractual matter between the DHH and the plaintiffs. With the satisfaction of the DHH lien, the right to pursue interest remained with the party who retained the cause of action against the Louisiana Patients’ Compensation Fund. In this case, the plaintiffs retained that cause of action. Accordingly, under the facts of this case, the plaintiffs would have been able to recover the interest on the damages at-issue, i.e., those previously paid by DHH and now repaid by the plaintiffs.

For these reasons, I respectfully concur in the result.


author: AMY, Judge.

text:
    John THIBODEAUX v. MECHANICAL CONSTRUCTION CO., LLC.
    No. 10-739.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.

      George S. Bourgeois, Jr., Opelousas, LA, for PlaintiffAppellee, John Thibodeaux.
    Stephen M. Morrow, Sr., James Steven Gates, Morrow, Gates, & Morrow, L.L.C., Opelousas, LA, for Plaintiff/Appellee, John Thibodeaux.
    Eric J. Waltner, Allen & Gooch, Lafayette, LA, for Defendant/Appellant, Mechanical Construction Company, LLC.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY and BILLY HOWARD EZELL, Judges.
   AMY, Judge.

hThe employer appeals a judgment in favor of the claimant finding that the claimant sustained a compensable work-related accident and was entitled to reasonable and necessary medical treatment related to certain cervical complaints. For the following reasons, we affirm.

Factual and Procedural Background

The claimant, John Thibodeaux, alleges he was involved in a work-related accident on August 20, 2007, while working as a plumber for the defendant employer, Mechanical Construction Company, L.L.C. (MCC). At trial, the claimant testified that he was on a ladder pulling pipe through metal hangars when he started experiencing severe pain in his left shoulder. Because of the shoulder pain, the claimant believed he was having a heart attack and he alerted his supervisor, Willis Anderson. Mark Joffrion, an assistant project manager with the defendant employer, drove the claimant to St. Patrick’s Hospital in Lake Charles, where it was determined the claimant was not having a heart attack and he was subsequently discharged.

Two days after his alleged accident, the claimant visited his primary care physician, Dr. Michael Felton, and complained of pain in his left shoulder and neck. Dr. Felton ordered an MRI of the claimant’s left shoulder and referred him to Dr. Frederick Mayer, an orthopaedic surgeon, and Dr. Vikram Parmar, an orthopaedic surgeon specializing in spinal disorders and orthopaedic trauma.

Dr. Parmar’s report, dated August 29, 2007, diagnosed the claimant with a complete traumatic rotator cuff tear, a degenerative rotator cuff tear, and “multilevel spinal stenosis from C3 to C7.” In that report, Dr. Parmar opined, “I think the |2majority of the symptoms are coming from this acute rotator cuff tear. I will address the spine pathology after the shoulder is fixed.” In a report dated September 6, 2007, Dr. Mayer stated that the claimant “presents with degenerative arthritis in the right and left AC joints with complete tears of the supraspinatus tendons on the left and right shoulders with restriction of active abduction in the left shoulder only.” He recommended surgery on the claimant’s left shoulder to repair his torn rotator cuff, which was subsequently performed on January 4, 2008.

On June 11, 2008, the claimant filed a Disputed Claim for Compensation against MCC and its workers’ compensation insurer, The Gray Insurance Company, seeking the authorization of medical treatment by Dr. Parmar and attorney fees and penalties for the untimely payment of indemnity benefits. The employer and insurer answered, generally denying the claimant’s allegations. After being granted leave of court, the employer and insurer filed an amended answer asserting that the claimant forfeited entitlement to benefits in that he “denied pre-alleged accident complaints, injury or problems to other medical providers, including but not limited to Dr. Parmar” in contravention of La.R.S. 23:1208 and denied prior injuries and complaints in a MCC post-hire medical questionnaire in contravention of La.R.S. 23:1208.1.

Following trial, the workers’ compensation judge issued judgment: finding the claimant proved that he sustained a com-pensable accident in the course and scope of employment; finding the claimant proved that his neck and cervical spine were injured in the work-related accident and that he was entitled to treatment for his neck and cervical spine; finding that the claimant’s lower back was not injured in the subject accident; and that the claimant was not entitled to penalties and attorney fees. In its oral reasons for judgment, the workers’ compensation judge found that the claimant did not forfeit benefits for violating La.R.S. 23:1208 or La.R.S. 23:1208.1.

1 sThe employer and insurer appeal, asserting that the workers’ compensation judge erred in: (1) denying its defense under La.R.S. 23:1208; (2) finding that the claimant met his burden of proving he was involved in a compensable accident; (3) finding that the claimant met his burden of proving a causal relationship between his cervical complaints and the alleged accident; and (4) denying its defense under La.R.S. 23:1208.1.

Discussion

Louisiana Revised Statutes 23:1201

The employer first argues that the trial court erred in denying its defense under La.R.S. 23:1208 in light of the claimant’s alleged misrepresentations of his prior conditions in his deposition, a recorded interview, and to his treating physicians.

Louisiana Revised Statutes 23:1208 provides the parameters for determining whether a claimant has committed fraud for the purpose of obtaining workers’ compensation benefits. Campbell v. City of Leesville, 07-1061 (La.App. 3 Cir. 1/30/08), 974 So.2d 908, writ denied, 08-491 (La.4/25/08), 978 So.2d 366. It provides, in pertinent part:

§ 1208. Misrepresentations concerning benefit payments; penalty
A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

An employer claiming that an employee has forfeited his or her rights under La.R.S. 23:1208 must prove “that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any 14benefit or payment.” Resweber v. Haroil Constr. Co., 94-2708, p. 7 (La.9/5/95), 660 So.2d 7, 12. The supreme court further explained:

[T]he statute does not require the forfeiture of benefits for any false statement, but rather only false statements that are willfully made for the purpose of obtaining benefits. It is evident that the relationship between the false statement and the pending claim will be probative in determining whether the statement was made willfully for the purpose of obtaining benefits. Clearly, an inadvertent and inconsequential false statement would not result in forfeiture of benefits.

Id. at 16.

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

With respect to a claim for 1208:
Mr. Thibodeaux did deny prior neck problems. The records do show prior complaints of neck problems. I don’t feel that Mr. Thibodeaux was intentionally misrepresenting it. He seemed very surprised at the prior neck complaint found in the records. And I accept that as genuine. You know, I can say it’s a coin toss. I don’t know. But the burden of proving fraud is on the employer/insurer, on the defendant; and each element has to be proven. I cannot say that the burden has been meant [sic] proving willfulness of the misrepresentations. There were misrepresentations. I cannot say they were willful.
I did find Mr. Thibodeaux to be a credible witness. He never got defensive or appeared disingenuous under cross-examination. While he, as I indicated, seemed surprised or was unable to explain the references to prior neck pain — I think there was just one reference to prior shoulder pain, but I’m not positive. Minimal, minimal on the shoulder. He was not able to explain that. At the same time, his demeanor seemed to be more of: “I wish I had a better answer,” than “I just don’t know.” But it was not defensive or deceptive. I did find his testimony to be credible.

A workers’ compensation judge’s determination as to whether a claimant has made a false statement, willfully, for the purpose of obtaining workers’ compensation benefits is a finding of fact, and is, therefore, subject to the manifest error standard |fiof review. Jim Walter Homes, Inc. v. Guilbeau, 05-1473 (La.App. 3 Cir. 6/21/06), 934 So.2d 239. Further,

When findings are based on determinations regarding the credibility of witnesses, the manifest error — clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.

Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989) (citations omitted).

The employer asserts that, despite medical records to the contrary, the claimant denied prior neck injuries in a recorded interview with an insurance claim adjuster following the alleged accident on September 10, 2007. The employer also points to the claimant’s deposition, taken on September 16, 2008, wherein the claimant denied previous arthritis in the neck. Lastly, the employer asserts that the claimant made misrepresentations to his treating physicians, Dr. Parmar and Dr. Mayer.

The record reveals a pre-operation questionnaire filled out by the claimant on January 16, 2006, prior to a procedure the claimant underwent to discover if he had cancer. On that questionnaire, the claimant indicated that he had arthritis, joint pain, and neck pain. Following the “arthritis” notation, the questionnaire states, “LIMITED ROM TO B/L SHOULDER.” Following the “neck pain” notation, there is no explanatory statement as to the kind of neck pain. In a medical record by the same hospital dated on January 12, 2006, it states that the claimant has arthritis to the | fiarms and neck. Further, there are several medical records documenting complaints of neck pain.

In the recorded interview referred to by the employer, the adjuster asked the claimant if he had back or neck injuries, the claimant replied “Ugh no, what they say that arthritis is in my neck and my back when they took the test.” He related that he had surgery in 1989 on three ruptured discs in his back related to a previous work-related accident. He explained that he returned to work in 1993 or 1994 and had not had any subsequent treatment in regard to that surgery.

The employer also points to the claimant’s deposition, taken on September 16, 2008, to support its assertion that the claimant forfeited benefits under La.R.S. 23:1208.1. In the deposition, the following exchange took place:

Q Were you ever told that you had a disc problem or disc herniation or a disc bulge or arthritis of any type involving your neck before August 20, 2007?
A No. I got three messed up discs.
Q And I’m going to get to that in a second, but I’m asking you right now about your neck.
A No, I just wanted to make sure that—
Q That you want to clarify. I appreciate that.
A Yeah.
Q But the answer to my question is no?
A No, my neck.

In Dr. Parmar’s and Dr. Mayer’s medical records, there is no recordation that the claimant related a previous history of neck problems, although they do refer to the claimant having arthritis in his right arm and hand.

17After review of the record, we find the workers’ compensation judge’s finding that the claimant did not willfully make misrepresentations about his neck supported by the record. The record reveals that there were inconsistencies in the claimant’s testimony and medical records as to whether he complained of neck pain or had, previous to this incident, an arthritis diagnosis. However, the last part of the Resweber test, that the false statements were made for the purpose of obtaining benefits, was not met. Resweber, 660 So.2d 7. In the claimant’s recorded interview, which took place after the alleged accident, he admitted that he was told he had arthritis in his neck. He also admitted to having a work-related accident in 1989 resulting in three ruptured discs. While the employer asserts misrepresentations by the claimant relating to neck and back injuries, it cannot be said that they were willful and for the purpose of obtaining benefits, when in an interview, taken shortly after the alleged accident, the claimant admitted directly to the adjuster to having neck arthritis and prior back injuries.

This assignment of error is without merit.

Compensable Accident

The employer next asserts that the workers’ compensation judge erred in finding that the claimant met his burden of proving he was involved in a compensable accident. Specifically, the employer asserts the existence of “overwhelming evidence” that discredits the claimant’s version of events of the alleged accident.

An “accident,” for the purposes of workers’ compensation, is defined in La.R.S. 23:1021(1) 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 1 agradual deterioration or progressive degeneration.” In Bruno v. Harbert Intern., Inc., 593 So.2d 357, 361 (La.1992), the supreme court stated:

[T]he plaintiff-worker in a compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. Id.; Nelson, supra. 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. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13 Louisiana Civil Law Treatise, Workers’ Compensation, § 253 (2d Ed.1980). Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends. Malone & Johnson, supra; Nelson, supra. Corroboration may also be provided by medical evidence. West, supra.

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

I am going to rule in favor of Mr. Thibodeaux in the following fashion: I do find that an accident did occur while in the course of employment and arising from that employment on August 20, 2007. I believe it’s very clear from the evidence and from the testimony that Mr. Thibodeaux believed he was having a heart attack. I think that explains why there was very scant, if any, history by him of his job activities at the time this happened or what particular complaints he was having with a great degree of specificity because he thought he was a having a heart attack, and a heart attack wouldn’t really depend on what activities were at that point. He clearly complained of numbness in his arm, and in the St. Pat’s records it does also show that he was complaining of pain. If you look under the pain assessment: “Are you having pain now? Yes.”
So to the extent that Mr. Waltner’s cross-examination of Mr. Thibodeaux implied that there was no complaints of pain that day, there is a mention of it; although, it is one brief mention in several pages of records. “Pain is acute, pain site modifer left, location arm.” He was having pain as documented by the St. Pat’s notes.
And Dr. Parmer’s report of August 29, 2007 does give the activity or the history — the correct history one would look for with respect to a work-related accident as opposed to a heart attack, and that was nine days later.
I think Dr. Felton was very clear in his deposition that he would not have sent Mr. Thibodeaux for an MRI of the neck and shoulder had there not been complaints and had there not been complaints of such significance that he thought it needed immediate attention. Further, he testified that he would not have sent Mr. Thibodeaux to a spine 19specialist and a shoulder specialist had he not been convinced of the severity or the significance of the complaints.
Dr. Felton also indicated that in the course of his treatment of Mr. Thibo-deaux prior to August of 2007, he did not find Mr. Thibodeaux to be a eom-plainer or whiney in any sense. So, he was impressed with the degree of pain Mr. Thibodeaux complained of and also discussed that Mr. Thibodeaux had been given pain medication in connection to the August 20, 2007 accident, and the medication had not relieved his pain. That is also indicated in Dr. Parmar’s report.
So, I do find an accident occurred.

The employer asserts that the deposition of Jim Stevens, the claimant’s supervisor, casts doubt on the claimant’s version of events. Mr. Stevens testified that, on the morning of the alleged accident, he instructed the claimant and his apprentice to take some pipe out of an area they had previously worked on the day before. He explained that the apprentice does the labor work while, in this case the claimant, supervised. He related that after about fifteen or twenty minutes, the claimant came to where he was and indicated that he was having chest pains. The decision was then made to take the claimant to the hospital. He testified that after the claimant left to go to the hospital, he went to where the claimant had been working and observed that “the project had not been worked on.” Mr. Stevens related that at no point in time on the day of the alleged accident did the claimant tell him he had been hurt moving pipe.

The employer asserts that this differs from the claimant’s testimony. First, the claimant denies having seen Mr. Stevens on the morning before the alleged accident. Further, the claimant testified that he had been working for about an hour, as opposed to fifteen or twenty minutes, before the alleged accident took place.

| inThe employer also contends that the claimant’s burden of proving an accident is hampered by the fact that the emergency room records make no reference to any kind of accident.

A workers’ compensation judge’s “determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error.” Bruno, 593 So.2d at 361. In her oral reasons for judgment, the workers’ compensation judge made no mention of Mr. Stevens’ testimony; however, she did indicate that she believed the claimant and that she found his testimony to be credible. Further, she found that his testimony was corroborated by Dr. Felton’s testimony. We find this determination supported by the record.

Here, the employer is correct that the emergency room records make no mention of a specific accident or injury. However, this was explained by the claimant in his testimony, as follows:

The reason why I didn’t say that I had any injury is because I didn’t know what I had. I thought it was a heart attack. When they told me it wasn’t a heart attack and it wasn’t a stroke and Dr. Felton sent me there, he didn’t tell me I had a pulled muscle or tore muscle or whatever. So I didn’t know what I had.

Dr. Felton testified that the symptoms the claimant suffered, a sudden onset of left shoulder pain, can mimic the same symptoms of a heart attack. He responded that the claimant’s injuries were consistent with a description that the claimant “was running pipe overhead and doing a pulling motion when [he] experienced a sudden onset of pain and thought [he] was having a heart attack.” Dr. Mayer testified that he believed that the claimant had a preexisting degenerative incomplete rotator cuff tear which was completed when he working with the pipe on the day in question.

| T1In light of the claimant’s testimony and the corroborating testimony of Dr. Felton and Dr. Mayer, we find that the workers’ compensation judge’s determination that the claimant met his burden of proving an accident is supported by the record.

This assignment of error is without merit.

Causal Relation

In its third assignment of error, the employer asserts that the workers’ compensation judge erred in finding that the claimant met his burden of proving a causal relationship between his cervical complaints and the alleged work-related accident.

A claimant must prove by a preponderance of the evidence that a work-related occurred and that the accident had a causal relationship to the disability claimed. Dousay v. Dousay Floor Covering, 07-195 (La.App. 3 Cir. 9/12/07), 966 So.2d 677, writ denied, 07-2023 (La.12/07/07), 969 So.2d 639. “An employee’s disability is presumed to have resulted from the accident if before the accident, the injured employee was in good health, but commencing with the accident, symptoms of the disabling condition appeared and continuously manifested themselves afterwards.” Marks v. 84 Lumber Co., 00-322, p. 3 (La.App. 3 Cir. 10/11/00), 771 So.2d 751, 754. For this presumption to arise, it requires either sufficient medical evidence to show a reasonable possibility of a causal connection between the accident and disabling condition, or that the nature of the accident, when combined with the other facts of the case, raises a natural inference of a causal connection through human experience. Id. “A claimant with a pre-existing disease or infirmity is not disqualified from receiving benefits if he can prove that the workplace accident aggravated, accelerated, or combined with the pre-existing condition to produce the claimed disability.” Wells v. Dunham Price, Inc., 04-209, p. 6 (La.App. 3 Cir. 9/29/04), 888 So.2d 495, 500.

|12In her oral reasons for judgment, the workers’ compensation judge stated:

I also find that the neck complaints were made immediately after that accident, immediately or very close in time after that accident. Unfortunately, for everybody involved, Dr. Parmar’s report did not surface until some time later. And Dr. Felton’s records were not documented as — the documentation in his file was not completely consistent with the deposition testimony. He did testify as I indicated that the neck and shoulder complaints were significant, that there were neck complaints; and therefore, he got the MRI. That was not documented in his notes.
I would note with respect getting back to the neck — or continuing on. There were prior complaints. I think that was very well established, but they were secondary to other treatment. There was not established any independent treatment for the neck prior to the work accident. Also, the complaints were never significant enough for there to have been diagnostic testing. Of course, it would have been nice to be able to compare any diagnostic testing prior to August of '07 to that done after August 20th of '07. But there are no such diagnostic tests; and therefore, leads me to believe that those complaints were not significant enough to have been explored any further.
Assuming that Mr. Thibodeaux did have pre-existing arthritis and other conditions in his and/or shoulder, he did continue to work, apparently, without any problem. He apparently did take some days off of work to followup on the testing for cancer, but it does not appear that he missed any more than a day or few hours at a time doing that treatment.
So I do believe that he is entitled to the presumption that applies. Even though he did have pre-existing problems, the disability did not occur until immediately after the accident; and therefore, he is entitled to the presumption that that the disability was caused by the accident in some combination or alone or some combination with the preexisting condition.
Now as far as where we go from here. My finding is that an accident did occur, that fraud is not sufficiently established, and that the cervical complaints are related to the August 20, 2007 accident. At this point, I believe and as Mr. Walt-ner pointed out, Mr. Bourgeois’ letter referred to a neck surgery recommendation. That’s not found anywhere in the records. So, at this point, I am simply stating the cervical complaints are related to the accident. Mr. Thibodeaux is entitled to obtain reasonable and necessary treatment relating to the accident. I hodon’t know what the complaints are at this time. I don’t know if there is an aggravation of a pre-existing condition that has since subsided. I don’t know if it’s gotten worse. I don’t think any of us do because he hasn’t received any neck treatment in very long time.
I also find that any low back complaints are not related to the August 20, 2007 accident. There was some mention in some of the records about low back complaints. I don’t think the records adequately establish any causal relation or presumption in favor of Mr. Thibo-deaux with respect to the low back.

We find that the workers’ compensation judge’s determination that the cervical complaints were related to the work accident is supported by the record. Here, as noted by the workers’ compensation judge, the record reveals that the claimant, although possibly suffering from arthritis or other conditions, was not disabled before the accident in that he was working for the employer without any known problems. The claimant testified that since the accident, he has not returned to work. He stated that his “neck still hurts and [his] arm still hurts” and he no longer has the strength to pick up the same things he used to be able to before the accident. Also, Dr. Felton testified that based on the claimant’s complaints at his visit immediately after the alleged accident, he ordered an MRI for the cervical spine and the shoulder, believing his pain to be caused by problems with both. In his deposition, he confirmed that he believed the problems with the shoulder and neck were related to the work event. Thus, based on the sequence of events, the claimant’s testimony, and the medical evidence, we find that the record supports the workers’ compensation judge’s determination that the cervical problems were related to the work accident.

This assignment of error lacks merit.

| ^Louisiana Revised Statutes 23:1208.1.

In the employer’s last assignment of error, it argues the workers’ compensation judge erred in denying its defense under La.R.S. 23:1208.1.

Louisiana Revised Statutes 23:1208.1 reads:

Nothing in this Title shall prohibit an employer from inquiring about previous injuries, disabilities, or other medical conditions and the employee shall answer truthfully; failure to answer truthfully shall result in the employee’s forfeiture of benefits under this Chapter, provided said failure to answer directly relates to the medical condition for which a claim for benefits is made or affects the employer’s ability to receive reimbursement from the second injury fund. This Section shall not be enforceable unless the written form on which the inquiries about previous medical conditions are made contains a notice advising the employee that his failure to answer truthfully may result in his forfeiture of worker’s compensation benefits under R.S. 23:1208.1. Such notice shall be prominently displayed in bold faced block lettering of no less than ten point type.

To prove forfeiture under La.R.S. 23:1208.1, the employer must prove (1) an untruthful statement; (2) prejudice to the employer; and (3) compliance with the notice requirements of the statute. Nabors Drilling USA v. Davis, 03-136 (La.10/21/03), 857 So.2d 407. In Jeffers v. Kentucky Fried Chicken, 08-1380, p. 12-13 (La.App. 3 Cir. 4/1/09), 7 So.3d 812, 820, writ denied, 09-956 (La.6/19/09), 10 So.3d 738, a panel of this court stated:

In determining whether an employer has been prejudiced by an untruthful response, the supreme court adopted the “inevitability test,” under which the employer must demonstrate a direct relation between the two injuries, such that the previous injury rendered it inevitable or very likely that the subsequent injury would occur. See Wise v. J.E. Merit Constructors, Inc., 97-684 (La.1/21/98), 707 So.2d 1214. This lays a very difficult test before the employer, and with good reason: forfeiture of benefits is a harsh remedy. It should require very strict proof.

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

With respect to the 1208.1 claim: Arthritis is noted in the statute as a preexisting condition which would qualify as significant — I don’t know the exact statutory language off the top of my head. But arthritis | isis one of those pre-exist-ing conditions that is presumed to entitle the employer to Second Injury Fund relief; something along those lines. And by denying arthritis, the question [that] arises is whether that did prejudice the employer or the insurer’s rights to recover from the Second Injury Fund. Again the employer bears that burden of proving 1208.1.
I cannot say that there is sufficient evidence in the record of prejudice to the employer. I cannot say that the prior condition of the neck or shoulders are directly related to his current condition. I cannot say that his rotator cuff tear or his cervical herniated discs were inevitable or very likely to have occurred based on the pre-existing condition. Nor can I say that there was a merger between his prior condition and the condition that was aggravated or caused by the work accident to make him more disabled and to require the payment of additional funding. See the Nabor’s case.
So, I cannot find that 1208 or 1208.1 have been violated; although, I do state that as I indicated with the 1208, there are misrepresentations on the 1208.1 for, the Second Injury Fund form. I also find that it appears that the notice requirements were met. However, I cannot make a finding in the employer/insurer’s favor as to prejudice.

We find the record supports the workers’ compensation judge’s determination that the employer did not prove prejudice in order to prevail under La.R.S. 23:1208.1. While, as described above, there was testimony by the claimant’s treating physicians that the work-related accident may have aggravated a pre-existing condition, there is no testimony in the record indicating that the pre-existing condition made the claimant’s current disability inevitable. As such, we find no error in the workers’ compensation judge’s ruling.

DECREE

The judgment of the workers’ compensation judge is affirmed. All costs of this appeal are assessed against the appellants — Mechanical Construction Company, LLC and Gray Insurance Company.

AFFIRMED.

      . With regard to the claimant's complaints, Dr. Felton in his deposition testimony admitted that the claimant’s only documented pain complaint was as to his left shoulder. However, he explained that after the August 22, 2007 visit, he referred the claimant to Dr. Parmer, a spine and neck surgeon. Dr. Fel-ton stated ''[the claimant] had to have a neck complaint at some point, because we wouldn’t have sent to Dr. Parmer[.]”