author: SAUNDERS, J. GENOVESE, J.,

text:
    Matthew NEWSOM v. GLOBAL DATA SYSTEMS, INC. Jared Pavlu v. Global Data Systems, Inc.
    Nos. 12-412, 12-413.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 2012.
    Rehearing Denied Jan. 23, 2013.

      Mark R. Pharr, III, Robin A. Sylvester, Galloway, Johnson, Tompkins, Burr & Smith, Lafayette, LA, for Defendant/Ap-pellee, Global Data Systems, Inc.
    Shelly D. Dick, Amy E. Newsom, For-rester & Dick, Baton Rouge, LA, for Plaintiff/Appellant, Matthew Newsom, Jared Pavlu.
    Court composed of ULYSSES G. THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, MARC T. AMY, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   SAUNDERS, J.

11FACTS AND PROCEDURAL HISTO-

Plaintiffs/Appellants, Matthew Newsom and Jared Pavlu, are former employees of Defendant/Appellee, Global Data Systems (GDS). GDS is a Lafayette-based technology company that obtains contracts to integrate new technology for its clients. It manages networking and communications systems.

Upon beginning employment at GDS, Newsom and Pavlu signed multiple documents, including an employee handbook and an employment agreement. The employment agreement included a clause that indicated an employee would reimburse the company for expenses arising out of education and training for the twelve months preceding separation.

Both Pavlu and Newsom hold bachelor’s degrees in engineering and various other certifications. Newsom was hired as a systems integrator, installing networking gear for GDS’ clients. He dealt predominately with Cisco networking gear. Pavlu holds certifications in Microsoft Systems Engineering, is a National Certified System Administrator, and has experience integrating computer systems. During the course of their employment with GDS, Newsom and Pavlu were sent to various events conducted by GDS vendors so that GDS could sell and install certain technology products. These activities were and are a business necessity for GDS.

GDS has a special relationship with Cisco, the largest vendor of computer networking gear, as a “gold partner,” which entitled GDS to a 45% discount on Cisco products. To maintain this “gold partner” status, GDS is required to have a certain volume of sales and show its employees hold certain Cisco certifications. GDS also requires its employees to attend events in order to comply with contracts for work with its customers.

l2In April 2008, Newsom and Pavlu resigned their employment with GDS. New-som anticipated his last paycheck would be $3,541.67 with a bonus of $2,125.00. Pavlu expected to receive his last paycheck, $2,708.34, with a bonus of $1,525.00. Instead of receiving these final wages, each received checks made out for $0.00, as well as bills and expense sheets based on a provision in GDS’ employee handbook. An expense report was attached to the bill which included reimbursements for business expenses during the last twelve months of their employment. Newsom’s bill was for $1,677.48. Pavlu’s bill was for $6,638.30.

Newsom’s expense report included a two-hour lunch hosted by Motorola in Houston, Texas, where Motorola introduced a new radio product, as well as gas expenses for the trip. Upon his return from this lunch, Newsom installed the new Motorola product for one of GDS’ clients. Additionally, there was an expense report for the Cisco Networkers Convention in Los Angeles, California, as well as a “Cisco Certified Internet Expert” test. This certification helped maintain GDS’ “gold partnership” with Cisco, which required a certain number of certifications. Newsom was asked to attend both of these events by his supervisor, Robert Guidry.

Pavlu’s expense sheet included seminars for a new Cisco product, which GDS endeavored to start selling. Also included was an expense import for Cisco “Certified Voice Professional” certification, which Pavlu attended in California. This certification was used by Pavlu upon his return to install products for GDS’ customers, yielding $45,000.00 for GDS over two and a half months. This certification also helped maintain GDS’ “gold partnership” with Cisco, which required a certain number of certifications. Pavlu was asked to attend both of these events by his supervisor, Robert Guidry.

Newsom and Pavlu made written demands and, subsequently, filed suit under La.R.S. 23:631 for their final wages. These petitions for damages were 1 .^consolidated for trial. GDS filed a recon-ventional demand against both Newsom and Pavlu seeking payment for the bills.

A trial was held on May 23, 2011. The trial court held Pavlu and Newsom were bound by provisions of the employment agreement and entered judgment in favor of GDS and against Pavlu. The trial court held that one of the items charged to Newsom was not covered by the language of the employment agreement and entered judgment for Newsom against GDS in the amount of $21,250.00, plus attorney fees. Upon a motion by GDS, the trial court granted a new trial and reversed itself on the matter of Newsom’s billing sheet and the $21,250.00. The trial court entered final judgment in favor of GDS, upholding the employment handbook provisions. It found the employment agreement is a contract in accordance with Louisiana law. It held the expenses owed by Newsom and Pavlu were authorized through offset, as there was a specific term to the obligation to repay educational expenses.

Pavlu and Newsom appeal seeking back wages, penalties, attorney fees, and costs.

ASSIGNMENTS OF ERROR:

On appeal, Matthew Newsom and Jared Pavlu assert the following assignments of error:

1. The trial court erred when it determined that the employment agreement was a valid contract between parties.
2. The trial court erred when it determined that the “education and training” provision in the employment agreement was a valid provision in an employment contract.
3. The trial court erred in excluding the testimony of Jennifer Smith.
|44. The trial court erred when it reversed itself on Global Data System’s motion for a new trial.

LAW AND ANALYSIS:

The employer-employee relationship is a contractual relationship. As such, an employer and employee may negotiate the terms of an employment contract and agree to any terms not prohibited by law or public policy. When the employer and employee are silent on the terms of the employment contract, the civil code provides the default rule of employment-at-will. Employment-at-will is firmly established in Louisiana law. This default rule is contained in La.Civ.Code art. 2747, which states: “A man is at liberty to dismiss a hired servant attached to his person or family, without assigning any reason for so doing. The servant is also free to depart without assigning any cause.”

Without a specific contract or agreement which establishes a fixed term of employment, an “at will” employee is free to quit at any time without liability to his or her employer and, likewise, may be terminated by the employer at any time, provided the termination does not violate any statutory or constitutional provision. See Fauntleroy v. Rainbow Marketers, 04-926, pp. 2-3 (La.App. 3 Cir. 11/10/04), 888 So.2d 1045, 1048. Unless an employment contract is for a definite period of time, there is no enforceable action for damages for dismissal under state law, as the contract can be terminated at the will of either employee or employer. Reyes-Silva v. Drillchem Drilling Solutions, LLC., 10-1017 (La.App. 3 Cir. 2/2/11), 56 So.3d 1173, writ denied, 11-0732 (La.5/20/11), 63 So.3d 983 (emphasis added).

In dealing with an employee’s abrupt departure from her place of employment without notice, the second circuit held it was unreasonable for the employer to withhold some of her pay. The court stated, “[i]n at-will employment, |fithe employee may quit at any time without liability to her employer. Any notion to the contrary is per se unreasonable.” Martin v. Sterling Associates, 46,461, p. 11 (La.App. 2 Cir 8/10/11), 72 So.3d 411, 418 (emphasis in original) (citations omitted). An at-will employee simply has no “legally protected interest in his employment.” Durand v. McGaw, 93-2077, p. 4 (La.App. 4 Cir. 3/29/94), 635 So.2d 409, 411, writ denied, 94-1081 (La.6/17/94), 640 So.2d 1318; see also Mendonca v. Tidewater Inc., 05-1166 (La.App. 4 Cir. 5/31/06), 933 So.2d 233, writ denied, 06-1808 (La.10/27/06), 939 So.2d 1280.

Employment manuals have been held to be merely unilateral statements by employers as to what actions are unacceptable and could lead to dismissal. See Wallace v. Shreve Memorial Library, (5th Cir.1996), 79 F.3d 427, certified question denied, 1996-0792 (La.5/17/96), 673 So.2d 602, appeal decided 97 F.3d 746 (5th Cir.1996). This does not meet the requirements of an employment contract as would modify an employee’s at-will status and create a property interest in employment. These cases suggest, forcefully, that the at-will employment concept is a two-edge sword which protects both the employer and employee, with equal force, from liability at separation.

It in undisputed that Newsom and Pavlu are at-will employees. Appellee states so in its brief. Despite calling them at-will employees, GDS states the obligations to repay educational expenses are subject to a term. This is not a term of employment. The employees are either at will or they are not, and it is clear that the employment agreement did not modify their contractual relationship with GDS such as to break out of the default regime of at-will employment. There is no term of employment—it is clear that Newsom and Pavlu were operating under an indefinite term. As such, they were free to leave their jobs at any time without incurring liability for discharge.

LUpon discharge they were owed wages earned: an employer has a duty to pay the amount then due under the terms of employment not later than fifteen days following the date of discharge. La.R.S. 23:631(A)(l)(a). The Payment of Employees Law, La.R.S. 23:631-653, requires the prompt payment of employees upon discharge. The sections applicable to this case are as follows:

§ 631. Discharge or resignation of employees; payment after termination of employment
A. (l)(a) Upon the discharge of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday or no later than fifteen days following the date of discharge, whichever occurs first.
§ 632. Liability of employer for failure to pay; attorney fees
Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.
§ 635. Assessment of fines against employees unlawful; exceptions
No person, acting either for himself or as agent or otherwise, shall assess any fines against his employees or deduct any sum as fines from their wages. This Section shall not apply in cases where the employees wilfully or negligently damage goods or works, or in cases where the employees wilfully or negligently damage or break the property of the employer, or in cases where the employee is convicted or has pled guilty to the crime of theft of employer funds, but in such cases the fines shall not exceed the actual damage done.

To recover penalty wages, the claimant must show that (1) wages were due and owing; (2) demand for payment thereof was made where the employee was customarily paid; and (3) the employer did not pay upon demand. Winkle v. Advance Products & Systems, 98-694 (La.App. 3 Cir. 10/28/98), 721 So.2d 983, 990, quoting Hebert v. Insurance Center, Inc., 97-298, p. 9 (La.App. 3 Cir. 1/7/98), 706 So.2d 1007, 1013, writ denied, 98-0353 (La.3/27/98), 716 So.2d 888.

This statute is penal in nature and, therefore, must be strictly construed in favor of the one receiving benefits under that chapter of the law. Fontenot v. Reddell Vidrine Water Dist., 02-439 (La.1/14/03), 836 So.2d 14. Equitable defenses are available, and penalty wages are not to be absolutely imposed. Pace v. Parker Drilling Co. and Subsidiaries, 382 So.2d 988 (La.App. 1 Cir.), writ denied, 383 So.2d 1016 (La.1980). Generally, when there is a good faith question of whether the employer actually owes past due wages, resistance to payment will not trigger penalty wages. However, when the employer is arbitrary, sets out procedural pitfalls for the employee, or is negligent in failing to pay past due wages, penalty wages will be assessed. Id.

Louisiana courts have recognized that an employer may have a claim of setoff or compensation against former employees. Employers have been allowed a setoff against a former employee’s unpaid wage claim for damages pertinent to physical property or for definitive amounts of money owed by the employee for salary overpayment, loans, or outstanding account balances. See Richard v. Vidrine Automotive Services, Inc., 98-1020 (La.App. 1 Cir. 4/1/99), 729 So.2d 1174. This situation arises when, for instance, the employer seeks setoffs against wages based on damage caused by the employee, Reeves v. A & M Pest Control Service, Inc., 379 So.2d 834 (La.App. 4 Cir.1980), Colbert v. Mike-Baker Brick Company of New Iberia, Inc., 326 So.2d 900 (La.App. 3 Cir.1976), overruled in part on other grounds, 364 So.2d 555 (La.1978); or for lost equipment, uniforms, and overpayment from a previous paycheck, Henderson v. Kentwood Spring Water, 583 So.2d 1227 at 1230, (La.App. 1 Cir.1991); or on advances made to the employee, Doucet v. Plantation Manor, Inc., 382 So.2d 984 (La.App. 1 Cir.1980); or for overpayment of wages to an employee who had not worked scheduled holidays prior to discharge, Pinion v. Union Carbide Corporation, 490 So.2d 479 (La.App. 4 Cir.1986); or for the balance on an employee’s revolving charge account with her employer, Brown v. Navarre Chevrolet, Inc., 610 So.2d 165, 171 (La.App. 3 Cir.1992); or because property of the employer is allegedly being improperly retained by the employee, Carriere v. Pee Wee’s Equipment Co., 364 So.2d 555 at 557 (La.1978); Landry v. Pauli’s Inc., 496 So.2d 431, 434 (La.App. 5 Cir.), writ denied, 500 So.2d 428 (La.1987).

The instant case can be differentiated from setoff cases such as those above and King v. American Rice Growers Exchange, where under the particular facts, we found nothing repugnant in the requirement of the former employer for an employee to satisfy his account out of his last week’s wages, (La.App. 3 Cir.1982), 417 So.2d 904. In King, the employee had knowledge of the requirement and enjoyed the advantages of special discounts. The instant case is more in line with Brown v. Navarre Chevrolet, Inc., 610 So.2d 165 (La.App. 3 Cir.1992), where we held that whether or not former employee/plaintiff received written notice of the policies or was aware of the policies which would limit the last paycheck, was not significant because the deductions were illegal violations of the clear language of La.R.S. 23:635.

In Service Investors Ltd. v. Scully, 08-1062, (La.App. 3 Cir. 3/4/09), 9 So.3d 910, there was an employment contract between an employee and employer such as to break out of the at-will employment scheme. The contract contained a penalty that stated if the employee left prior to the five-year term, he would owe a year’s salary. We held that such an employment contract is against public policy and is unlawful and unenforceable. In Scully, a term existed, so this court reached the issue of reasonableness. Here, there is no term, so it is impermissible to have a |flpenalty for leaving early. Such a provision violates at-will principles, La.R.S. 23:631, and public policy protections afforded employees. The penalty here is less onerous, but the employees are not bound to a term; thus, we do not reach the same reasonableness analysis as we did in Scully.

In Becht v. Morgan Buildings & Spas, Inc., 01-1091 (La.App. 1 Cir. 6/21/2002), 822 So.2d 56, employer Morgan asserted the issue at suit was governed by the terms of an employment contract. The court held that persons may not, by their juridical acts, derogate from laws enacted for the protection of the public interest. Any act in derogation of such laws is an absolute nullity. La.C.C. art. 7; Morse v. J. Ray McDermott & Co., Inc., 344 So.2d 1353 (La.1976). Furthermore, in Goulas v. B & B Oilfield Services, Inc., 01-934 (La.App. 3 Cir. 8/10/11), 69 So.3d 750, writ denied, 11-1951 (La.11/14/11), 75 So.3d 945, we held that a former employees’ contracts with a former employer, where they agreed to payment of outstanding commissions in installments, thus having the direct effect of excusing employer from meeting its statutory obligation to pay commissions owed upon resignation, were void as against public policy.

The provisions of La.R.S. 23:631 and 632 are for the protection of employees. See Guidry v. Anderson-Dunham, Inc., 597 So.2d 1184 (La.App. 1 Cir.1992). The main purpose of this legislation is to compel an employer to pay the earned wages of an employee promptly after his dismissal or resignation. Wilson v. Inessa Stewart’s Antiques, Inc., 96-2767 (La.App. 1 Cir 2/20/98), 708 So.2d 1132, writ denied, 98-0777 (La.5/8/98), 718 So.2d 435. This legislation strictly forbids an employer from requiring an employee to forfeit his wages upon resignation and provides that the employee shall be entitled to the wages “actually earned” up to the time of their resignation. Even those employed | Tnunder a collective bargaining agreement are protected by these statutory provisions. La.R.S. 23:640.

Clearly, prompt payment of wages to employees protects the public interest. Therefore, as in Morgan, GDS cannot rely on contract terms in direct violation of this well-established Louisiana law. See also Beard v. Summit Inst. for Pulmonary Med. and Rehab., Inc., 97-1784 (La.3/4/98), 707 So.2d 1233. We find that, as in Goulas, this. is an employer trying to skirt its statutory obligations to its former employees. This is void as against public policy. It also violates the basic principles of at-will employment. Newsom and Pavlu are at-will employees and to withhold their last paychecks would be equivalent to imposing liability on them for leaving their jobs. The open-ended nature of the contract means that Newsom and Pavlu would never be able to resign without incurring liability for educational expenses.

Collecting debts owed by former employees to their employers for benefits accrued is a fundamentally different principle than requiring employees to reimburse for training and education that significantly benefited the employer. It should be noted that GDS benefited when its employees attended the training both because of its preferential contracts with Cisco and Microsoft and because GDS was able to earn revenue as a result of its employees’ new skills. The record shows GDS benefited greatly each time it sent Newsom or Pavlu to a seminar or when they received training or certifications. The employees had no choice but to undergo said training and education in order to keep their employment. GDS is in the business of selling and installing innovative technology products. It needs its employees to be trained in the latest technological advances in order to be functional. The terms in GDS’ employee handbook are void as they are manifestly unreasonable and against public policy. These policies held by GDS must give Inway to the protections warranted former employees under La.R.S. 23:631, et seq., and employment-at-will doctrine, in furtherance of broader societal policies, such as maintenance of a free and efficient flow of human resources.

The third assignment of error raised by Appellants as to the testimony of Jennifer Smith was not briefed and, as such, is abandoned and moot. Finally, due to the reasons enumerated in the above opinion, Appellants’ fourth assignment of error as to GDS’ motion for a new trial is moot.

CONCLUSION:

Global Data Systems owes its former employees, Matthew Newsom and Jared Pavlu, the wages earned upon their discharge in April 2008, plus ninety days wages at the employee’s daily rate of pay, as provided in La.R.S. 23:632, for GDS’ refusal to comply with the provisions of La.R.S. 23:631.

Newsom and Pavlu are further awarded $6,500.00 in attorney fees for work done at trial and appellate levels.

Costs of this appeal are assessed to GDS.

REVERSED AND RENDERED.

AMY, J., dissents for the reasons assigned by Judge GENOVESE.

GENOVESE, J., dissents and assigns written reasons.

GENOVESE, J.,

dissents and assigns the following reasons.

| jThe employment agreements in this case (the contract) entered into by New-som and Pavlu with their employer, Global Data Systems, are binding contracts for at-will employment. The words in the contract are clear and explicit, do not lead to absurd consequences, are not ambiguous, and are not contrary to any public policy.

Newsom testified that he read the contract before he signed it and understood that by signing it he was agreeing to its terms. Pavlu, on the other hand, testified that he did not read the contract; however, by law, he is nonetheless bound by it. McGoldrick v. Lou Ana Foods, Inc., 94-400 (La.App. 3 Cir. 11/2/94), 649 So.2d 455.

Paragraph 6.C. of the contract requires an employee to reimburse the company for funds expended by the company for the employee’s education or training within the twelve months immediately preceding the employee’s |gseparation from the company. Paragraph 6.B. recognizes and authorizes an offset by the company against any sums the company owes to its employee.

In my view, the deductions by Global Data Systems from Newsom and Pavlu’s final wages were a lawful offset as set forth and agreed to pursuant to a lawful and binding contract upon termination of their respective employment.

I respectfully disagree with the majority opinion in this case and dissent therefrom. I would affirm the trial court judgment in all respects.


source: Caselaw Access Project

author: ROSEMARY LEDET, Judge.

license: Public Domain

text:
    Irma REGIS v. DEPARTMENT OF POLICE.
    No. 2012-CA-1043.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 12, 2012.

      C. Theodore Alpaugh, III, Claude A. Schlesinger, Guste Barnett Schlesinger Henderson & Alpaugh, L.L.P., New Orleans, LA, for Plaintiff/Appellee.
    Victor L. Papai, Jr., Deputy City Attorney, Sharonda R. Williams, Chief of Litigation, Richard F. Cortizas, City Attorney, New Orleans, LA, for Defendant/Appellant.
    Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge ROSEMARY LEDET.
   ROSEMARY LEDET, Judge.

|,This is a Civil Service Commission of the City of New Orleans (“CSC”) case. The appointing authority, the New Orleans Police Department (“NOPD”), appeals the CSC’s decision overturning the NOPD’s disciplinary action of Sergeant Irma Regis, an NOPD employee with permanent status. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On December 10, 2008, Sergeant Regis was involved in a motor vehicle-pedestrian accident while responding to a Code 2 call-accident with injury. Officer Kenneth Márchese was dispatched to the scene, conducted an investigation, and issued an accident report. No citations were issued. Responsibility for completing the supervisory reports was assumed by Sergeant Regis’ supervisor, Sergeant Patrick Baxter. On December 12, 2008, Sergeant Baxter issued a supervisory report in which he concluded that “[although the accident appeared to be unavoidable; the officer was advised to employ more defensive driving tactics, while responding in a code 2 mode in the rain.”

|gOn April 2, 2009, an administrative subpoena was issued to Sergeant Regis directing her to appear on April 28, 2009, before the Accident Review Board (“ARB”). On April 29, 2009, the ARB issued its report in which it found that Sergeant Regis caused an avoidable accident by failing to maintain reasonable vigilance while operating a department vehicle. The ARB classified the accident as a “B2, Chart 1, Preventable/Line of Duty/Chargeable,” but noted the severity of the incident to be minor. Based on this classification, the ARB recommended that Sergeant Regis receive a letter of reprimand and attend driver’s training. Accepting the ARB’s recommendation, NOPD’s Superintendent Warren Riley, issued a letter of reprimand, dated June 2, 2009, that included an order to attend a driver’s training course. The letter of reprimand also included the following summary of the factual basis for the disciplinary action:

The inquiry determined that on December 10, 2008 at approximately 5:00 p.m., while on duty and driving New Orleans Police Department vehicle ... you were involved in a traffic accident at the intersection of Carondelet Street and Gravier Street_ You were operator of the vehicle number one responding to an accident with injury in the 300 block of St. Charles Avenue. You were traveling east on Carondelet Street with emergency vehicle’s light’s activated. As you approached the intersection of Carondelet and Gravier, while in the right lane you noticed the traffic light facing you indicated green and you slowed down before making a turn. You observed a pedestrian crossing the street from your left side and applied brakes to stop. The pedestrian observed vehicle one and raised his right arm up, before impact, which struck the front hood of vehicle one. The pedestrian, Mr. Steven Rapier[,] refused medical treatment, did not want to report the incident and left the location. Prior to Mr. Rapier leaving the location he provided Sergeant Patrick Baxter with an account of the incident. Mr. Rapier stated that he did not see vehicle one until the last minute and raised his arm up before impact. Mr. Rapier stated he would have kept walking away if Sergeant Regis would not have called him back to the scene. After reviewing the facts and circumstances of the accident, the Board concluded that this accident was avoidable in that you were in 1 e-violation of 17271 MCS Chapter 154, Section 400 related to Reasonable Vigilance.

The municipal code section cited, 17271 MCS Chapter 154, Section 400, provides: “[t]he operator of any vehicle in this city shall maintain a reasonable vigilance at all times while driving, sufficient to avoid collision with another vehicle, pedestrian, or other private or public property.”

Sergeant Regis filed an appeal with the CSC. The CSC assigned the matter to a hearing examiner. A two-day hearing was held on August 30, 2010, and September 27, 2010. On March 31, 2011, the hearing examiner found that the facts did not support any disciplinary action and provided the following reasons for its finding:

The disciplinary letter accurately describes an unavoidable incident that perhaps technically is an accident. The Appointing Authority [ (NOPD) ] provided no documentary evidence or testimony supporting a conclusion that the incident was avoidable. Appellant [ (Sergeant Regis) ] made a right turn with a green light at an | appropriate speed, and a pedestrian stepped out in front of her without looking. She applied her brakes, and the vehicle stopped short of the pedestrian. The pedestrian flung out his arm and struck the vehicle. He was not injured.

The hearing examiner thus recommended that Sergeant Regis’ appeal be granted.

Based on its review of the transcript of the hearing and the documentary evidence submitted, the CSC, on April 13, 2012, agreed with, and adopted as its own, the hearing examiner’s reasons quoted above. The CSC thus granted Sergeant Regis’ appeal and ordered the NOPD to remove the letter of reprimand from Sergeant Re-gis’ disciplinary record. This appeal by the NOPD followed.

DISCUSSION

The standards that govern this case are well-settled. Enumerating those standards, this court in Harris v. Department of Fire, 08-0514, pp. 10-11 (La.App. 4 Cir. 7/16/08), 990 So.2d 54, 61-62, stated:

• An employer cannot subject a permanent classified civil service employee to disciplinary action except for cause expressed in writing. La. Const. Art. X, § 8(A); Walters v. Dep’t of Police, 454 So.2d 106, 112 (La.1984).
• Cause for discipline of an employee exists whenever the employee’s conduct impairs the efficiency of the public service in which the employee is engaged. Cittadino v. Dep’t of Police, 558 So.2d 1311, 1315 (La.App. 4th Cir.1990).
• “The appointing authority is charged with the operation of his or her department and it is within his or her discretion to discipline an employee for sufficient cause.” Whitaker v. New Orleans Police Dep’t, 03-0512, p. 5 (La.App. 4 Cir. 9/17/03), 863 So.2d 572, 575.
• The employee may appeal from such a disciplinary action to the Commission. On appeal, the Commission has a duty to decide independently from the facts presented whether the appointing authority had good and lawful cause for taking the disciplinary action and, if so, whether the punishment imposed was commensurate with the infraction. Walters, 454 So.2d at 113.
• “The authority to reduce a penalty can only be exercised if there is insufficient cause.” Whitaker, 03-0512 at p. 4, 863 So.2d at 575 (citing Branighan v. Dep’t of Police, 362 So.2d 1221, 1223 (La.App. 4 Cir.1978)). Further, a legal basis for any change in a disciplinary action can only be that sufficient cause for the action was not shown by the appointing authority. Branighan, 362 So.2d at 1221. The Commission may not merely substitute its judgment for the appointing authority’s judgment. Whitaker, 03-0512 at p. 5, 863 So.2d at 576.
• On appeal, the standard of review is established by the constitutional rule that the Commission’s decision is subject to review on any question of law or fact. La. Const, art. X, § 12. A multifaceted standard of appellate review applies. First, as in other civil matters, deference must be given to the Commission’s factual findings, which should not be disturbed unless manifestly erroneous or clearly wrong. Second, in evaluating the Commission’s determination as to whether the disciplinary action is both based on legal cause and commensurate with the infraction, the appellate court should not modify the Commission’s decision unless it is arbitrary, capricious, or characterized by an abuse of discretion. Bannister [v. Department of Streets ], 95-404 at p. 8, 666 So.2d [641] at 647 [ (La.1996) ]. Arbitrary or capricious means there is no rational basis for the action taken by the Commission. Id.

Id.; Williams v. Department of Police, 08-0465, pp. 6-7 (La.App. 4 Cir. 10/22/08), 996 So.2d 1142, 1145-46 (citing Harris, supra); Bankston v. Department of Fire, 09-1016, p. 7 (La.App. 4 Cir. 11/18/09), 26 So.3d 815, 821-22 (citing Williams, supra (citing Harris, supra)).

In applying these standards, an appellate court must make two determinations: (1) whether the appointing authority had good or lawful cause for taking the disciplinary action, and (2) whether the punishment the appointing authority imposed is commensurate with the offense. Harris, 08-0514 at p. 11, 990 So.2d at 62 (citing Staehle v. Department of Police, 98-0216, p. 3 (La.App. 4 Cir. 11/18/98), 723 So.2d 1031, 1033). To establish that it had cause, the appointing authority must prove two factors: (i) that the complained of conduct occurred, and (ii) that the complained of conduct impaired the efficiency of the Department. Harris, 08-0514 at p. 11, 990 So.2d at 62.

|fiIn the instant case, the complained of conduct was Sergeant Regis’ alleged failure to exercise reasonable vigilance, in violation of 17271 MCS Chapter 154, Section 400, that resulted in a motor vehicle-pedestrian accident. Classifying the accident as avoidable, the NOPD found a basis for imposing discipline. Granting Sergeant Regis’ appeal, the CSC found the accident was not avoidable; hence, it found there was no basis for imposing discipline. From that decision, the NOPD filed the instant appeal. On appeal, the NOPD framed the sole issue presented as whether the CSC exceeded its authority by substituting its judgment for the judgment of the appointing authority, the NOPD, when it removed the letter of reprimand from Sergeant Regis’ disciplinary record and granted her appeal.

Before the CSC, the NOPD had the burden of proving, by a preponderance of the evidence, the facts upon which it based its disciplinary action against Sergeant Re-gis. At the hearing before the CSC hearing examiner, the NOPD called three witnesses — the investigating officer, Officer Márchese; the supervising officer, Officer Baxter; and an ARB member, Sergeant Damon Murray. The NOPD also questioned Sergeant Regis, who testified on her own behalf. In addition, the NOPD introduced documentary evidence — the following four exhibits: (1) Officer March-ese’s accident report; (2) Officer Baxter’s supervisor’s report; (3) the ARB Recommendation 105, which was identified at the hearing by Sergeant Murray and signed by him; and (4) a copy of the municipal code section cited, 17271 MCS Chapter 154, Section 400.

The testimony of the NOPD’s three witnesses, Sergeant Regis’ testimony, and the documentary evidence support the CSC’s finding that the NOPD failed to prove that the accident was avoidable. The evidence is summarized below.

Officer Márchese and the accident report

17Officer Márchese was dispatched to investigate the motor vehicular-pedestrian accident in question. His investigation included interviewing three people: Sergeant Regis; Sergeant Regis’ supervisor, Sergeant Baxter; and the pedestrian, Steven Rapier.

While en route to the accident scene, Officer Márchese was notified by the Command Desk that the NOPD unit involved in the accident had relocated to the Eighth District Station on Royal Street (the “Eighth District”) and that the pedestrian had refused a report and left the scene. At the Eighth District, Officer Márchese interviewed Sergeant Regis who informed him that at the time of the incident she was responding to an accident with injury in the 300 block of St. Charles Avenue. She had no passengers and was driving a fully marked NOPD vehicle — a Ford Expedition with a LED light bar on top of it.

Sergeant Regis was traveling east on Carondelet Street with her overhead emergency lights activated. As she approached the intersection of Carondelet and Gravier, she entered the right lane, noticed that traffic signal had just turned green, and proceeded to slow down before making the right turn. She observed a pedestrian crossing the street and hit her brakes to stop. She was traveling about five miles per hour, and the police vehicle slid due to the tires being on the metal street car track coupled with the rain. The pedestrian observed the police vehicle and threw his right arm up before impact; the pedestrian’s arm struck the fi-ont hood of the police vehicle. After waiting for about an hour, the pedestrian stated that he did not want a report, refused medical treatment, and left the scene. After the pedestrian left the scene, Sergeant Regis relocated to the Eighth District where she was interviewed by Officer Márchese.

IsOffícer Márchese observed that the front of the police vehicle that Sergeant Regis was driving had no damage. Although the vehicle was equipped with a camera, he observed that the camera was not functioning because it was not hooked up completely. Officer Márchese described the road conditions at the time of the accident as follows: it was “raining real heavy ... on the interstate you couldn’t even see the hood of the car it was coming down so hard. Poydras Street was holding water.... [I]t was really a bad rainstorm.”

As noted, Officer Márchese investigation also included interviewing Sergeant Baxter. Sergeant Baxter indicated that when he arrived at the accident scene the pedestrian, Mr. Rapier, was leaving the scene. Officer Baxter confirmed that if Sergeant Regis had not called the pedestrian back, the pedestrian would have continued to walk away. Officer Baxter also confirmed that the pedestrian neither wanted a report nor medical attention.

Mr. Rapier informed Officer Márchese that he was “crossing with the crosswalk right-of-way light on and the oncoming traffic on Carondelet Street had a red light.” He further informed Officer Márchese that he “did not see the NOPD S.U.V. until the moment before impact and braced with [his] ... right forearm at impact.” Mr. Rapier confirmed that Sergeant Regis’ vehicle had the overhead emergency lights on and that he could not figure out why he did not see the vehicle. Mr. Rapier further confirmed that he refused all medical attention, that he did not want a police report, and that if Sergeant Regis had not called him back, he would have continue to walk away.

As noted, Sergeant Marchese’s investigation did not result in the issuance of any citation. Sergeant Márchese prepared the accident report. Responsibility for preparing the supervisor’s report was assumed by Sergeant Baxter.

| ^Sergeant Baxter and the supervisor’s report

Sergeant Baxter testified that at the time the accident occurred he and Sergeant Regis were both responding in separate vehicles to a Code 2 call, which required two units. Sergeant Regis’ vehicle was slightly ahead of his vehicle. It was raining heavy, dark, windy, and the road conditions were very wet. Sergeant Regis proceeded to enter the intersection at Gra-vier, and her lights were activated. As she approached the intersection, there was a group of people at the intersection. Sergeant Regis proceeded to go ahead, and one of the people walked in front of her unit. Sergeant Baxter explained that “[t]here was a short gap. The guy anticipating that he was going to be hit threw up his arm and Sergeant Regis applied the brakes.” Due to the wet road conditions, her police vehicle slid a “very short amount” and they “collided.” Sergeant Baxter clarified that “collided” was not a correct term for what occurred because the pedestrian “threw up his arm because he anticipated the hit.” Sergeant Baxter stated that after the incident, he left the scene in order to respond to the Code 2 call that he and Sergeant Regis were en route to when the incident occurred. Thereafter, he returned to the scene and spoke with both Sergeant Regis and the pedestrian. Sergeant Baxter noted that the pedestrian was present at the scene, was not hurt, and did not want a report.

According to Sergeant Baxter, the pedestrian told him that, at the time of the accident, he was on his way to an appointment and that he did not see the police vehicle. According to Sergeant Baxter, the pedestrian told him that “[h]e wasn’t paying attention.” Sergeant Baxter also spoke to Sergeant Regis who informed him that the pedestrian came out at the last moment and that “basically it was unavoidable.” Based on his investigation, Sergeant Baxter concluded in his report that “[t]he wind, hard rain, and wet roadway contributed to the accident. The | ^pedestrian's inattentiveness may have also been a contributing factor to the crash incident.” Sergeant Baxter thus concluded that the accident was unavoidable. Explaining his conclusions, Sergeant Baxter testified as follows:

I believed that the accident was unavoidable. In my report, when I did the report I put it was unavoidable based on a number of facts; because I thought that the road conditions were almost like flash flood, the vision was obscured, the wet conditions, and on that location. I believe there were tracks there and that, you know, it all contributed to it, and plus coupled with his inattentiveness, I think it was unavoidable.

In response to the question of whether there was something Sergeant Regis could have done, Sergeant Baxter testified: “employ more defensive tactics, more defensive driving tactics, but that’s — that’s my call.” He testified that Sergeant Baxter was not speeding.

On cross-examination, Sergeant Baxter testified that the purpose of the supervisor’s report was to determine whether the NOPD’s employee was responsible for an accident. Another purpose for the report, he noted, was to identify what factors may have contributed to an accident for study purposes so as to determine if future accidents could be avoided. Sergeant Baxter confirmed his conclusion in his supervisor’s report that the accident in question was unavoidable.

Sergeant Damon Murray and the ARB recommendation

Sergeant Damon Murray testified that he was a member of the ARB that investigated the accident in question. He also prepared and signed the ARB’s report. Sergeant Murray provided the following statement of his understanding of what happened:

Sergeant Regis was operating a police vehicle and she attempted to negotiate a turn, she had looked both ways and she didn’t see anything coming so she negotiated the turn. Somebody stepped off the curb and I guess they felt they were going to run into the police Incar, put their hand out their hand [ (sic) ], touched the car and basically that’s what happened.

According to Sergeant Murray, the ARB, as a group, found that Sergeant Regis violated 17271 MCS Chapter 154, Section 400. The ARB classified the accident as a “B2C1” — “Preventable/Line of Duty/Chargeable.” In response to the question of what Sergeant Regis should have done, Sergeant Murray stated that “maybe she could have been more aware of her surroundings and maybe that could have avoided the accident.” Sergeant Murray further stated that he could not say whether he agreed or disagreed with Sergeant Baxter’s conclusion that the accident was unavoidable.

Sergeant Irma Regis

Sergeant Regis testified on her own behalf. Her version of what happened was as follows:

I was responding to a Code 2, pedestrian struck, and while in route they advised they had given a wrong location so I turned back coming down Caronde-let to the location, I think it was 300 St. Charles. As I was coming down Caron-delet, ... I was proceeding to the light which turned green. I’m going to make the turn and then the guy come walking, when I looked he was like about to walk in front of the car so I slammed on the brakes. I mean I wasn’t going but like five miles per hour when I had started proceeding to go make the turn. When I saw him I hit the brakes and he was in front my vehicle, didn’t make contract with him, he stuck his arm out, I guess anticipating being struck. But I stopped in time before I hit him so he struck his hand out and he hit the car. He didn’t fall ,to the ground or anything. So I stopped.
[The pedestrian] said that ... he wasn’t paying attention because the umbrella — it was storming, it was like a rain storm, dark, cold and it was raining and windy, real windy. So he had the big umbrella blocking his view, and he was walking across so he never saw [t]he lights when he was coming across the street, he just kept going until he looked up and he stuck his hand out. So he admitted that he wasn’t paying attention, his mind was on meeting his attorney who was supposed to be coming in his direction.

| ^Disagreeing with the ARB’s finding that the incident was a chargeable or an avoidable accident, Sergeant Regis testified that she was responding to a Code 2 when “the guy [ (the pedestrian) ] walked in front not paying attention and there was no damage to the police car, nor was there any injury to the guy.” She testified that she was going no more than five miles per hour and that she could not have been going any slower. She explained that she had come to a stop, the light had changed to green, and she looked both ways before crossing the intersection. She testified that the overhead emergency lights on her vehicle were on and that she was manually hitting the button for the siren.

Although she acknowledged the need to be especially vigilant when responding to Code 2 calls and when the weather is inclement, Sergeant Regis denied that she was not being vigilant when the incident occurred. Rather, she stated: “[i]f I wasn’t vigilant I wouldn’t have seen him coming in front of the vehicle. I mean I would have hit him then, you know, I stopped before he made a crash.” Finally, she testified that she has been with the NOPD for nineteen years, and this was her first time to go before the ARB.

Based on the above evidence, we cannot conclude that the CSC’s finding that the NOPD failed to prove that the accident was avoidable was manifestly erroneous.

The NOPD, in an attempt to establish there was cause for the discipline, cites the statement in Sergeant Marchese’s accident report that the pedestrian informed him that he was “crossing with the crosswalk right-of-way light on and | ]Sthe oncoming traffic on Carondelet Street had a red light.” Based on this reference to the pedestrian being in a crosswalk, the NOPD contends that Sergeant Regis violated Louisiana law by failing to afford a pedestrian in a crosswalk the right-of-way. In support, the NOPD cites Cooper v. Lane, 286 So.2d 759 (La.App. 1st Cir.1973), which involved a pedestrian who was struck by a vehicle in a crosswalk on Louisiana State University’s campus. The NOPD contends that Cooper stands for the proposition that a pedestrian in a crosswalk has the right-of-way over an approaching motorist. Given that Mr. Rapier was in a crosswalk, the NOPD contends that Sergeant Regis, as an approaching motorist, violated Louisiana law by failing to afford him the right-of-way.

Sergeant Regis counters that the Cooper case is distinguishable in that it involved an uncontrolled crosswalk; whereas, the intersection in this case was controlled by “both traffic lights and Walk/Don’t Walk lights.” Sergeant Regis contends that that this case is akin to St. Amant v. Travelers Ins. Co., 233 So.2d 23 (La.App. 4th Cir.1970). In St. Amant, supra, the motorist proceeded in a cautious manner into the intersection with the benefit of a green light. The motorist stopped his vehicle instantaneously upon observing the pedestrian running into the intersection with her head down. Finding the motorist free from fault, the court noted that the motorist “did everything he could to avoid the accident, but unfortunately, under the circumstances could not.” St. Amant, 233 So.2d at 26. As in St. Amant, supra, Sergeant Regis contends that she was proceeding cautiously through the intersection with a green light and traveling at a safe rate of speed. 114Upon seeing the pedestrian, she did everything she could do to avoid the accident. Indeed, she was able to stop before striking the pedestrian. The sole contact between the vehicle and the pedestrian was with the pedestrian’s arm, which he flung out in anticipating of being hit.

In this case, the issue is not comparative fault; rather, the issue is whether the NOPD established cause for disciplining Sergeant Regis. As noted, in order to establish cause, the NOPD was required to prove two factors: (i) that the complained of conduct occurred, and (ii) that the complained of conduct impaired the efficiency of the NOPD. Harris, 08-0514 at p. 11, 990 So.2d at 62. We find the NOPD failed to prove either factor.

In so finding, we note that the circumstances presented in this ease are close to those presented in Fihlman v. New Orleans Police Dep’t, 00-2360 (La.App. 4 Cir. 10/31/01), 797 So.2d 783. In Fihlman, supra, the officer was suspended by the NOPD based on a vehicular collision; the police vehicle the officer was driving collided with another police vehicle. This court affirmed the CSC’s reversal of the suspension based on the NOPD’s failure to offer any evidence establishing either that the vehicular accident was preventable or that the officer’s actions impaired the efficient operation of the NOPD. We noted that the only evidence the NOPD offered of the impairment of its operations was the con-clusory statement in its | ^disciplinary letter that the officer disregarded laws and policies governing traffic laws and safe driving practices. Fihlman, 00-2360, p. 9, 797 So.2d 783, 789.

By analogy, as discussed above, the NOPD in this case failed to establish that the motor vehicle-pedestrian accident in question was avoidable. The NOPD offered no evidence to support a finding that Sergeant Regis was not paying attention to her surroundings. As Sergeant Regis testified, the fact that she was paying attention to her surroundings was evidenced by her ability to stop quickly so that only the pedestrian’s arm struck the police vehicle. Nor was any evidence presented that Sergeant Regis was driving too fast or lacked control of the police vehicle.

The NOPD also failed to offer any evidence to establish how Sergeant Regis’ actions impaired its efficient operations. As in Fihlman, supra, the only evidence the NOPD offered of the impairment of its operations was the eonclusory statement in the disciplinary letter that Sergeant Regis disregarded “traffic laws, safe driving practices, or department regulations governing motor vehicles.” Although the disciplinary letter references Sergeant Regis’ “past driving record with this department,” the NOPD in this case, as in Fihlman, supra, offered no evidence of Sergeant Regis’ past driving record.

The NOPD, in its appellant brief, argues that “[Sergeant] Regis’ actions were indeed problematic, thereby impairing the [NOPD’s] efficient operation.” Continuing, it argues that her negligent operation of the NOPD vehicle “by its very nature, impairs the efficient operation of the department.” Argument of counsel is 116not evidence. Houston v. Chargois, 98-1979 (La.App. 4 Cir. 2/24/99), 732 So.2d 71, 73.

Accordingly, we conclude that this is not a case in which the CSC substituted its finding regarding the appropriate discipline for that of the appointing authority. Fihlman, 00-2360 at pp. 8-10, 797 So.2d at 788-89. Rather, this is a case in which the NOPD failed to prove to the CSC that it had legal cause to discipline Sergeant Re-gis. Id. The CSC’s decision to reverse the discipline imposed on Sergeant Regis thus cannot be viewed as an improper substitution of its judgment for that of the NOPD. We thus find the issue raised by the NOPD on appeal is unpersuasive.

DECREE

For the forgoing reasons, the judgment of the Civil Service Commission of the City of New Orleans reversing the discipline imposed by the New Orleans Police Department upon Sergeant Regis is affirmed.

AFFIRMED

      . The comment to 17271 MCS Chapter-154, Section 400 cross-references the parallel state law, La. R.S. 32:58, which provides:
      Any person operating a motor vehicle on the public roads of this state shall drive in a careful and prudent manner, so as not to • endanger the life, limb, or property of any person. Failure to drive in such a manner shall constitute careless operation.

      . On June 11, 2009, Sergeant Regis filed a motion for summary disposition with the CSC, challenging the letter of reprimand on the grounds that the investigation resulting in the discipline exceeded the maximum sixty-day investigatory time period set forth in La. R.S. 40:2531(B)(7) of the Law Enforcement Officers' Bill of Rights. The CSC denied the motion, stating:
      The Appellant misapprehends the meaning of the statute. The 60-day investigatory period commences not with the date of the alleged infraction, but with the date of commencement of the investigation, which itself is reckoned from the date upon which "a formal and written complaint” is made.
      There is nothing in this record to indicate that a "formal and written complaint” was made against Officer Regis prior to the convening of the Accident Review Board, which appears to have conducted and concluded its entire investigation within 24 hours.
      The statute does not command that an investigation take place within a certain amount of time subsequent to the alleged infraction, only that the investigation itself be limited in duration.
      Sergeant Regis timely filed a notice of appeal or alternatively, a notice of intention to apply of supervisory writs. This court denied Sergeant Regis’ application for supervisory writ. Regis v. Department of Police, 10-0537 (La.App. 4 Cir. 05/07/10) (unpub.).

      . Nonetheless, we note, contrary to the NOPD’s contention, that a motorist is not "necessarily at fault whenever there is a motor vehicle-pedestrian collision." Estate of Hickerson v. Zimmerman, 02-1195, p. 5 (La.App. 4 Cir. 7/16/03), 853 So.2d 55, 59 (citing Mutart v. Allstate Ins. Co., 622 So.2d 803, 806 (La.App. 4th Cir.1993)). Rather, both the motorist’s and the pedestrian's conduct must be considered when assessing fault in a motor vehicle-pedestrian collision case. Zimmerman, supra. Indeed, both the motorist and the pedestrian have statutory duties of care. Id.

      . As Sergeant Regis points out, the NOPD failed to comply with Uniform Rules of the Courts of Appeal, Rule 3-1.1, which provides:
      Every application for appeal from a final decision of any administrative body shall be filed with the appropriate administrative body in writing as required by law and shall include an assignment of errors, which shall set out separately and particularly each error asserted and a designation of the portions of the record desired to be incorporated into the transcript.
      Moreover, in its brief to this court, the NOPD simply listed an "ISSUE PRESENTED” and listed no assignments of error. Citing IT Corp. v. Commission on Ethics for Public Employees, 464 So.2d 284, 292 (La.1985), Sergeant Regis contends that we should not address the NOPD arguments on appeal. Given our finding that the issue raised on appeal by the NOPD is unpersuasive, we find it unnecessary to address this issue.


author: GENOVESE, Judge.

text:
    Cynthia DUPLECHAIN v. TOWN OF CHURCH POINT.
    Nos. 12-475, 12-476.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 19, 2012.

      Gloria A. Angus, Angus Law Firm, L.L.C., Opelousas, LA, for Plaintiff/Appellant, Cynthia Duplechain.
    Christopher R. Phillip, Law Office of Christopher R. Phillip, Lafayette, LA, for Defendant/Appellee, Town of Church Point.
    Court composed of JIMMIE C. PETERS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

Itln this workers’ compensation case, Plaintiff/Employee, Cynthia Duplechain, appeals the judgment of the Office of Workers’ Compensation (OWC) finding that she was not entitled to temporary total disability benefits (TTD), supplemental earnings benefits (SEB), or cervical and lumbar surgeries. Ms. Duplechain also appeals the penalty and attorney fee awards and seeks additional attorney fees for work done on appeal. Defendant/Employer, Town of Church Point (Church Point), has answered the appeal, seeking a reversal of the award of a penalty and attorney fees. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On February 5, 2005, Ms. Duplechain, a certified Church Point police officer, was working as a dispatcher when the chair she was sitting in collapsed, and she fell to the concrete floor. It is undisputed that Ms. Duplechain was in the course and scope of her employment at the time and place of her injury. Church Point paid Ms. Duplechain TTD until August 1, 2008; thereafter, Church Point paid Ms. Duple-chain SEB until it terminated all benefits on November 30, 2009.

On October 9, 2008, Ms. Duplechain filed a disputed claim relative to the failure of Church Point to authorize pain management treatment. On February 10, 2010, Ms. Duplechain filed a second disputed claim relative to the conversion of her benefits from TTD to SEB, the termination of SEB, the refusal to authorize cervical and lumbar surgeries, and penalties and attorney fees.

This matter was tried on October 28, 2010, December 13, 2010, and July 12, 2011. On November 2, 2011, the WCJ denied Ms. Duplechain’s claims for TTD, SEB, cervical surgery, and lumbar surgery. However, the WCJ granted |2Ms. Duplechain’s claim for pain management treatment and assessed a $2,000.00 penalty and a $5,000.00 award of attorney fees .against Church Point. Judgment was signed by the WCJ on December 12, 2011.

ASSIGNMENTS OF ERROR

Ms. Duplechain asserts that the WCJ erred in: (1) denying TTD; (2) denying SEB; (3) denying cervical surgery; (4) denying lumbar surgery; and (5) awarding insufficient penalties and attorney fees. After filing her appeal, Ms. Duplechain filed an Answer and Request for Attorney Fees on Appeal wherein she asserted that the judgment “should be modified to increase the amount of attorney fees from $5,000.00 to $20,000.00” and also requested “attorney fees in the amount of $3,000.00 for filing this appeal.”

In its Answer to Appeal, Church Point asserts error by the WCJ in awarding a penalty and attorney fees to Ms. Duple-chain.

LAW AND DISCUSSION

In workers’ compensation cases, the factual findings of the trial court are subject to the manifest error standard of review. Smith v. Louisiana Dep’t of Corrections, 93-1305, p. 4 (La.2/28/94), 633 So.2d 129, 132; Freeman v. Poulan/Weed Eater, 93-1530, pp. 4-5 (La.1/14/94), 630 So.2d 733, 737-38. In applying the standard, the appellate court must not determine whether the trier of fact’s conclusion was right or wrong, but that it was reasonable. Freeman, 630 So.2d at 737-38; Stobart v. State, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous. Stobart, 617 So.2d at 882. Therefore, “if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler V. Liberty Mut. Ins. Co., 558 So.2D 1106, 1112 (La.1990).
Richard v. Vermilion Hosp., 10-385, pp. 3-4 (La.App. 3 Cir. 6/9/10), 41 So.3d 1219, 1223, writ denied, 10-1611 (La.10/8/10), 46 So.3d. 1269 (quoting Landry v. Furniture Ctr., 05-643, pp. 5-6 (La.App. 3 Cir. 1/11/06), 920 So.2d 304, 309, writ denied, 06-358 (La.4/28/06), 927 So.2d 290). Additionally, “[t]he decision to impose penalties and attorney fees is essentially a factual issue subject to the manifest error or clearly wrong standard of review.” Weaver v. S. Erectors, Inc. of Florida, 10-783, p. 13 (La.App. 3 Cir. 12/8/10), 53 So.3d 547, 555 (citing Authement v. Shappert Eng’g, 02-1631 (La.2/25/03), 840 So.2d 1181).

Richard v. Calcasieu Parish Sch. Bd., 11-469, p. 2 (La.App. 3 Cir. 10/5/11), 79 So.3d 359, 861 (alterations in original).

Medical Benefits

Ms. Duplechain asserts that the WCJ erred in denying her claims for cervical surgery and lumbar surgery. On the date of her injury, Ms. Duplechain was seen by Dr. Marcello Polanco. She was seen twice before he sent her to physical therapy for her complaints of neck, shoulder, and lower back pain. Ms. Duplechain sought treatment with Dr. Reginald Segar in March 2005, complaining of neck pain, upper back pain, and lower back pain. Ms. Duplechain underwent a lumbar MRI, which was interpreted as normal, and continued with more physical therapy.

Ms. Duplechain then saw Dr. Greg Gid-man, an orthopedic surgeon, in November 2005, who opined that she had a lumbosa-cral contusion caused by the accident. Dr. Gidman next saw Ms. Duplechain in April 2006, for complaints of neck pain on her left side and lower back pain. Ms. Duple-chain underwent a cervical MRI, which indicated a small focal disc herniation on the right at C6-7. In May 2006, as per Dr. Gidman’s recommendations, Ms. Du-plechain underwent a cervical myelogram and CT scan and a lumbar myelogram and CT scan. The cervical and lumbar myelo-grams were normal. The lumbar CT scan showed bulges at L3-4, L4-5, and L5-S1; however, there was no nerve root impingement. The cervical CT scan indicated a disc herniation and osteophyte at C6-7. When |4Ms. Duplechain returned to see Dr. Gidman in June 2006, complaining of continued neck pain, he referred her to Dr. Luiz deAraujo, a neurological surgeon.

Ms. Duplechain saw Dr. deAraujo in July 2006. After an MRI of Ms. Duple-chain’s left shoulder, Dr. deAraujo opined that Ms. Duplechain needed cervical surgery for her symptoms of neck pain radiating into her left arm caused by nerve impingement at C6-7.

Church Point sought a second medical opinion (SMO) relative to Ms. Duplechain’s neck pain, which was obtained from Dr. Anthony Ioppolo, a neurological surgeon, in August 2006. Dr. Ioppolo disagreed with Dr. deAraujo and opined that cervical surgery was not needed.

An independent medical examination (IME) was performed by Dr. Dean Moore, a neurological surgeon, in October 2006. Dr. Moore opined that Ms. Duplechain had thoracic outlet syndrome and also disputed her need for cervical surgery.

In April 2008, Dr. deAraujo sought to have Ms. Duplechain undergo another lumbar MRI; however, Ms. Duplechain would not submit to this diagnostic test. In May 2008, Dr. deAraujo released Ms. Duplechain to light-duty work. In June 2008, he opined that Ms. Duplechain had reached maximum medical improvement (MMI).

Ms. Duplechain ultimately submitted to a second lumbar MRI in August 2008. In October 2008, Ms. Duplechain underwent a lumbar epidural steroid injection. Ms. Du-plechain complained that the “epidural” offered her no relief. At this point, Dr. deAraujo recommended lumbar surgery.

Church Point then sought a SMO from Dr. Ioppolo relative to Ms. Duplechain’s back pain, which was performed in March 2009. Dr. Ioppolo opined that lumbar surgery was not necessary.

| ¿Church Point obtained an IME with Dr. Patrick Juneau, III, in July 2009. Dr. Juneau opined that Ms. Duplechain did not need lumbar surgery and was at MMI.

In its reasons for judgment, the WCJ stated it found “little correlation of the diagnostic findings with [Ms. Duple-chain’s] complaints, and the diagnostic findings did not suggest the alleviation of her complaints by surgical intervention.” The WCJ weighed the findings of Ms. Duplechain’s treating physician, Dr. deAr-aujo, who recommended cervical and lumbar surgeries for Ms. Duplechain, against the findings of Dr. Ioppolo, Dr. Moore, and Dr. Juneau, each of whom disputed Ms. Duplechain’s need for either surgery. Simply put, the WCJ weighed the evidence before her and chose between two permissible views of the evidence. Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Stobart, 617 So.2d 880. We are not allowed to substitute our view of the evidence for that of the factfinder in the face of conflicting medical evidence. For the foregoing reasons, we find that the opinions of Dr. Ioppolo, Dr. Moore, and Dr. Juneau all support the WCJ’s denial of Ms. Duplechain’s claims for cervical and lumbar surgeries. Though there are two permissible views of the evidence, we find no manifest error, and we affirm the WCJ’s ruling.

Indemnity Benefits

Ms. Duplechain asserts that the WCJ erred in denying her claim for TTD.

A workers!’] compensation claimant seeking temporary or permanent total disability benefits bears the burden of proving, by clear and convincing evidence, his inability to engage in any type of employment because of his physical condition. Greis v. Lake Charles Mem’l Hosp., 97-1258 (La.App. 3 Cir. 3/6/98), 709 So.2d 986, writs denied 98-937, 98-939 (La.5/15/98), 719 So.2d 467.

Olivier v. City of Eunice, 10-1433, p. 4 (La.App. 3 Cir. 6/8/11), 66 So.3d 1244, 1248. Ms. Duplechain also asserts that the WCJ erred in denying her claim for SEB. “ ‘The purpose of [SEB] is to compensate the injured employee for the wage • earning capacity he has lost as a result of his accident.’ Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556.” Poissenot v. St. Bernard Parish Sheriff’s Office, 09-2793, p. 4 (La.1/9/11), 56 So.3d 170, 174 (alteration in original). Pursuant to La. R.S. 23:1221(3)(a), an employee is entitled to receive SEB if the employee sustains a work-related “injury resulting in the employee’s inability to earn wages equal to ninety percent or more of wages at time of injury!.]”

Tiffany Harrington, the vocational rehabilitation counselor, identified numerous jobs for Ms. Duplechain within the restrictions approved by Dr. Ioppolo. However, Ms. Duplechain testified that though she applied for jobs, she was either denied the job or told that there were no jobs available.

In its reasons for judgment, the WCJ stated:

The Court does not place much, if any, weight on [Ms. Duplechain’s] testimony. The evidence reflects that Ms. Duple-chain obstructed the progress of her claim at every opportunity. She missed doctors’ appointments. She missed the voc rehab appointments. She missed the FCE. She cancelled the MRI set up by her treating physician. She did not pick up her certified mail from the rehab counselor, and she also testified that she didn’t think she could do any of the jobs anyway.

The WCJ concluded that Ms. Duplechain was physically able to perform the jobs identified to her. We find the record supports the WCJ’s determination that Ms. Duplechain was provided with appropriate vocational services and that Church Point carried its burden of proving that she was physically able to perform certain jobs available to her. Thus, we find no manifest error in either the WCJ’s ^^determination that Church Point’s reduction of TTD to SEB was proper, or the WCJ’s determination that Church Point’s termination of SEB was proper.

Penalties and Attorney Fees

On appeal, Ms. Duplechain contends that the penalty and attorney fees awarded by the WCJ are inadequate. In its Answer to Appeal, Church Point argues that the WCJ erred in awarding a penalty and attorney fees pursuant to La.R.S. 23:1201(E).

The WCJ found that Ms. Duple-chain was “entitled to medication management with Dr. Segar” and assessed a $2,000.00 penalty and a $5,000.00 award of attorney fees against Church Point “for failing to authorize pain management specifically requested by [Ms. Duplechain’s prior counsel] in her letter of October 25th of 2007.” The WCJ further reasoned:

While Ms. Duplechain didn’t always do what she needed to do, the adjusters didn’t always do what they needed to do. It was apparent there was a period of time where nobody was tending to Ms. Duplechain’s file. [Her prior counsel] was trying to get pain management, there was no response.... ”

We find no abuse of discretion in the WCJ’s assessment of the penalty and attorney fees against Church Point.

“The amount [of attorney fees] award[ed] by the WCJ will not be disturbed unless we find that the WCJ abused her discretion. George v. M & G Testing and Services, Inc., 95-31 (La.App. 3 Cir. 7/19/95), 663 So.2d 79, writ denied, 96-0039 (La.3/8/96), 669 So.2d 403.” Evergreen Presbyterian Ministries v. Wallace, 07-313, p. 5 (La.App. 3 Cir. 10/10/07), 968 So.2d 256, 260. The record before us is devoid of any evidence to support an increase in the attorney fees awarded by the WCJ. Given the deference we must afford the WCJ in its ruling, we find no error in the WCJ’s determination that Church Point was liable for penalties and attorney fees pursuant to La.R.S. 23:1201(E) for failing to authorize pain | ^management, nor do we find an abuse of discretion in the amount of the penalty or in the amount of the attorney fees awarded. Thus, we find no merit in the contention of either Ms. Duplechain on appeal or Church Point in answer to the appeal relative to the WCJ’s award of the penalty and attorney fees, and we affirm the WCJ’s ruling.

Finally, we address Ms. Duplechain’s request for additional attorney fees for work necessitated by her appeal. Ms. Duple-chain asserts that she is entitled to an award of attorney fees in the amount of $3,500.00 for work done on appeal. We have already determined that Ms. Duple-chain’s assignments of error are without merit. Because she was unsuccessful in her appeal, we find no legal basis for granting Ms. Duplechain’s request for an additional award of attorney fees for this appeal. See Minor v. J & J Carpet, Inc., 11-974 (La.App. 3 Cir. 2/1/12), 84 So.3d 680 (citing Soileau v. R & H Refractory Servs., Inc., 01-355 (La.App. 3 Cir. 10/3/01), 796 So.2d 903, writ denied, 01-2954 (La.1/25/02), 807 So.2d 841).

DECREE

Accordingly, for the reasons stated above, the December 12, 2011 judgment of the Office of Workers’ Compensation is affirmed in its entirety. All costs of this appeal are assessed to Cynthia Duple-chain.

AFFIRMED.

      . This pleading was filed under docket number 08-21806.

      . This pleading was filed under docket number 10-01331. These two proceedings were consolidated by the Workers’ Compensation Judge (WCJ) and tried together.