author: PARRO, J.

text:
    Floyd D. DUBUISSON v. AMCLYDE ENGINEERED PRODUCTS CO., INC. and Louisiana Insurance Guaranty Association.
    No. 2012 CA 0010.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2012.

      G. Brice Jones, Ross F. Lagarde, Paul D. Hesse, Jones Lagarde, L.L.C., Slidell, LA, for Plaintiff-Appellee Floyd D. Du-buisson.
    Michael J. Bourquard, New Orleans, LA, for Defendants-Appellants Amclyde Engineered Products Co., Inc. and Louisiana Insurance Guaranty Association.
    Before PARRO, HUGHES, and WELCH, JJ.
   PARRO, J.

|2In this workers’ compensation case, Amclyde Engineered Products Co., Inc. (Amclyde) and its insurer, Louisiana Insurance Guaranty Association (LIGA), appeal a judgment in favor of Floyd D. Dubuisson, who was employed by Amclyde when he fell and sustained injuries. For the following reasons, we affirm the judgment in part and remand in part for further proceedings in accordance with the law and this opinion.

BACKGROUND

On March 24, 2000, while in the course and scope of his employment as a pipefit-ter with Amclyde, Dubuisson fell, injuring his neck. After conservative treatments produced no relief for the pain in his neck and right shoulder, in December 2002, Dr. John B. Logan, an orthopedic surgeon specializing in spine surgery, performed a cervical fusion on his neck. Although Dr. Logan deemed the surgery a success, after some initial pain remission, Dubuisson experienced neck pain radiating into his right shoulder and arm. Consequently, he continued to receive treatment for his neck and right shoulder pain from Dr. Robert Fortier-Bensen, a pain management specialist who had treated him since the accident. In July 2003, Dubuisson was involved in a minor motor vehicle accident in which he struck the rear of another vehicle while under the influence of prescription medications. He admitted he was on medications, was handcuffed, and was taken to jail, where he became involved in a physical altercation with a jailer after being booked. All charges concerning the fight at the jail were eventually dropped, but he was convicted of DUI. After this incident, unless it was absolutely necessary for him to drive, Dubuisson depended on his wife and son for transportation.

Because Dubuisson continued to experience right shoulder pain, Dr. Logan ordered an MRI of the right shoulder without contrast, which was performed on August 14, 2003. That test showed degenerative changes of the acromioclavicu-lar joint, causing impingement into the supraspinatus tendon, possible tendinopa-thy in the | ¡¡rotator cuff, and the possibility of a partial tear. After years of treatment with no consistent relief from the right shoulder pain, Dr. Fortier-Bensen ordered another MRI. This test, an arthrogram, was done with contrast on October 30, 2007. The diagnostic report after this test concluded that there was a tear of the superior labrum extending from anterior to posterior and mild degenerative arthritis in the acromioclavicu-lar joint that appeared unchanged from August 2003.

In January 2008, Dubuisson consulted Dr. Brian L. Fong, an orthopedist, who diagnosed a superior labrum tear in his right shoulder and recommended arthroscopic surgery if cortisone injections did not relieve his pain. LIGA did not approve the surgery. In July 2010, Dr. For-tier-Bensen terminated Dubuisson as a patient, because he had tested positive for Xanax, which the doctor had not prescribed for him at that time. Dubuisson paid out-of-pocket for all of his medical expenses after July 2010.

On November 17, 2010, LIGA terminated his supplemental earnings benefits, and on January 21, 2010, Dubuisson filed a disputed claim for benefits. In January 2011, Dubuisson received approval from LIGA to see Dr. Logan again for his continuing complaints of right shoulder pain. Dr. Logan agreed that the right shoulder needed surgery and that, after this had been done, the cervical area needed a further workup to determine whether there were disc problems above and below the earlier fusion. Dr. Logan referred him to Dr. Richard P. Texada, Jr., an orthopedic surgeon with a specialty in sports medicine, for treatment of his shoulder injury, and to Dr. Scott Sondes, a medical doctor with a specialty in physical medicine, rehabilitative medicine, and emergency room care, for pain management. Again, LIGA did not approve these referrals.

Following the trial on May 23, 2011, the workers’ compensation judge (WCJ) found that Dubuisson was an Amclyde employee in March 2000 when the accident occurred and that he had sustained injuries to his neck and right shoulder in the work-[related4 fall. The judgment ordered Am-clyde and LIGA to pay him temporary total disability benefits from November 18, 2010, at the rate of $884 per week, plus legal interest until paid, and further ordered payment of all medical bills and expenses, including any unpaid mileage, to either the health-care providers who remained unpaid or to Dubuisson, if he had paid those items out-of-pocket. The judgment further granted Dubuisson the right to change his choice of pain management physician to Dr. Sondes and to Dr. Texada for treatment of the neck and right shoulder, and also ordered Amclyde and LIGA to pay for continuing treatment, including surgery for the labrum tear in Dubuisson’s right shoulder. Amclyde and LIGA appealed that judgment, which was signed on August 31, 2011.

STANDARD OF REVIEW

In workers’ compensation cases, the appropriate standard of review to be applied by the appellate court to the WCJ’s findings of fact is the “manifest error-clearly wrong” standard. Dean v. Southmark Const., 03-1051 (La.7/6/04), 879 So.2d 112, 117. To uphold the WCJ’s finding of fact, the appellate court must find from the record that there is a reasonable factual basis for the finding of the trier of fact and that the record establishes that the finding is not clearly wrong (manifestly erroneous). Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the trier of fact’s finding, no additional inquiry is necessary to conclude there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a factual finding only if, after reviewing the record in its entirety, it determines the factual finding was clearly wrong. See Stobart v. State, through Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993); see also Dawson v. Terrebonne Gen. Med. Ctr., 10-2130 (La.App. 1st Cir.5/19/11), 69 So.3d 622, 626.

If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse those findings even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Connor v. Family Dollar Store, 09-1537 (La.App. 1st Cir.3/26/10), 36 So.3d 339, 345, writ denied, 10-0959 (La.6/25/10), 38 So.3d 344. Where there is [¡^conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even when the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1st Cir.6/27/03), 865 So.2d 98,105, writ denied, 03-2581 (La.11/26/03), 860 So.2d 1139. Where there are two permissible views of the evidence, a fact finder’s choice between them can never be manifestly erroneous or clearly wrong. Richardson v. North Oaks Hosp., 11-1258 (La.App. 1st Cir.2/13/12), 91 So.3d 361, 365.

CAUSATION

Amclyde and LIGA contend Dubuisson’s right shoulder problem was not related to the March 2000 work accident, but was a new injury that occurred either in the automobile accident and/or the fight with the jailer in July 2003. They claim Du-buisson complained only of neck pain after his work injury and did not complain of right shoulder pain until after the July 2003 accident and confrontation. They also state that the labrum tear in Dubuis-son’s right shoulder first showed up on the MRI in 2007; the MRI in 2003 did not show the tear, and a number of doctors could not relate the finding of the labrum tear to the original work injury. Therefore, Amclyde and LIGA conclude, Dubuis-son did not meet his burden of proving a legal/medical causal connection between the accident and the right shoulder injury. Thus, they should not be forced to pay for continuing treatment and surgery to correct the right shoulder labrum tear.

A workers’ compensation claimant bears the burden of establishing a causal connection between the work accident and the resulting disability by a preponderance of the evidence. Clark v. Godfrey Knight Farms, Inc., 08-1723 (La.App. 1st Cir.2/13/09), 6 So.3d 284, 292, writ denied, 09-0562 (La.5/29/09), 9 So.3d 163. An employee’s work-related accident is presumed to have caused his disability when the claimant proves that before the accident, he had not manifested his disabling symptoms; that commencing with the accident, disabling symptoms appeared; and that there is either medical or circumstantial evidence indicating a reasonable possibility of a causal connection between the accident and the disabling condition. Delatte v. Pala Group, LLC, 09-0913 (La.App. 1st Cir.2/10/10), 35 So.3d 291, 295, writ denied, 10-0562 (La.5/7/10), 34 So.3d 865.

This court will examine the evidence presented by Dubuisson to determine whether he met his burden of proving that, more probably than not, his current problems with his right shoulder were causally related to the accident at work. If there is medical and other evidence indicating a reasonable possibility of that causal connection, then the WCJ’s factual finding concerning this issue cannot be “clearly wrong” and cannot be overturned by this court.

Dubuisson testified at trial that he had pain in his neck and right shoulder and arm after the work-related accident. He reported this to the doctors who examined him immediately after the accident, including Dr. Fortier-Bensen, Dr. Bert R. Bratton, and Dr. Logan. On December 3, 2002, Dr. Logan performed a cervical fusion, which provided temporary relief for the pain in his neck, but not for the pain in his right shoulder and arm. Dr. Fortier-Bensen treated his shoulder pain by doing monthly facet injections in his neck; each of those injections would relieve the shoulder pain for about two weeks. An MRI without contrast was performed on his right shoulder in August 2003, and a second MRI with contrast, an arthrogram, was done in October 2007.

Dr. David Donaldson, a board-certified diagnostic radiologist at Ochsner Medical Center North Shore in Slidell, testified as an expert concerning his evaluation of the two MRIs and the radiology reports interpreting those tests. He stated that the radiologist who conducted the August 2003 test reported degenerative changes of the acromial clavicular joint, causing impingement into the supraspinatus tendon, an intermediate signal in the rotator cuff that could represent tendinopathy, and the possibility of a partial tear. The radiologist’s report concerning the October 2007 MRI concluded there was a “tear of the superior labrum extending from anterior to posteri- or” and mild degenerative arthritis in the acromial clavicular joint, which appeared unchanged from August 2003. Dr. Donaldson stated that in the 2007 tests, an initial series of images was done without contrast. Then the joint was injected with contrast fluid to light up all the small recesses of the joint, and another series of images was taken. In this |7seeond series, the contrast solution made the tear in the glenoid labrum clearly visible. Referring again to the radiologist’s report after the 2007 test, Dr. Donaldson noted that the radiologist looked at the 2007 images that were taken before injection of the contrast fluid and said he believed he could see the tear on those images. Dr. Donaldson then compared the 2007 pre-contrast images with the 2003 MRI images taken without contrast material, and stated that the appearance was the same in both of those images, leading him to believe that, more probably than not, there was a tear in Dubuisson’s glenoid labrum in 2003.

On cross-examination, Dr. Donaldson acknowledged that he believed the 2003 report’s reference to a possible tear involved the rotator cuff, not the glenoid labrum. Dr. Donaldson said that on the 2007 MRI pre-contrast images, there was an area in the proton density imaging that looked like the tear. When he compared that to the proton density imaging on the 2003 MRI, Dr. Donaldson could see something in the same area that looked like the tear. He said, “It’s only in retrospect with two sets of images and a further study that you can look back and think that there is a tear there.”

Dubuisson’s deposition, taken December 8, 2009, was admitted into evidence as a joint exhibit. Dubuisson said that on the day of the accident, he was working for Amclyde as acting foreman and was asked by a mechanic to check his work. Dubuis-son climbed on top of a level beam pile and checked the work. As he came down, he stepped off a concrete piling onto another one that had a pipe about six to eight inches long sticking out of the end of it. He said he stepped on the piling and went down to the ground, explaining further:

[M]y right foot slid and I thought I was going to hit that pipe. And I reached back. I twisted my whole body as hard as I could back to keep me from hitting that pipe on the end of the piling. I thought I was going to hit it, but I didn’t. I hit my butt, my hand hit the ground, and my feet, leg, went down. The ground was on an angle ... and I popped all the way from my back up to the base of my skull....

The following Monday, he made an accident report to his supervisor and was told to go to Pelican Urgent Care, which he did. After taking an x-ray of his neck, the radiologist there told him he could see something wrong in his neck, but could not tell what it was. Dubuisson then asked Amclyde to let him see his own pain management | ^doctor, Dr. Fortier-Bensen, who had done proiotherapy on his knee after ACL replacement surgery some years earlier. Dr. Fortier-Bensen referred him to Dr. Bratton, a neurosurgeon, for a myelo-gram of his cervical area. When the test results came in, Dr. Bratton told him he needed surgery, but said his neck would never be the same. Dr. Fortier-Bensen then referred him to Dr. Logan, who told him he could do the surgery, but said the disk above and below the fusion would probably go out in time. Dubuisson said that, before the surgery, his symptoms were “Excruciating neck pain, the stabbing in the shoulder feeling, burning down through ... [the] top of my shoulder.”

Dubuisson testified at the trial that he had seen Dr. Fortier-Bensen on a monthly basis ever since his accident for pain management for his neck and right shoulder, including facet injections that gave him some temporary relief. About September 2009, Dr. Fortier-Bensen could not see him due to his own illness, and the facet injections ceased. Dubuisson admitted that he took some Xanax that was not prescribed at that time by Dr. Fortier-Bensen; when a drug test revealed this, Dr. Fortier-Bensen terminated him as a patient in September 2010. Dubuisson was eventually able to And another pain management specialist, Dr. Joseph Mogan, who was still treating his neck and shoulder pain at the time of trial. However, LIGA had not approved the transfer to Dr. Mogan, so Dubuisson was paying him out of pocket. In January 2011, he returned to Dr. Logan, who recommended he see Dr. Texada for treatment of the shoulder and Dr. Sondes for pain management. LIGA did not approve these referrals, and after November 2010, Dubuisson did not receive any more workers’ compensation benefits. Dubuisson stated that his right shoulder had been getting steadily worse ever since the neck surgery, even to the point of feeling like someone was stabbing a knife into his shoulder blade.

Dr. Fortier-Bensen’s deposition was taken in February 2010 and admitted into evidence as a joint exhibit. His notes from Dubuisson’s second visit to him on April 11, 2000, showed that Dubuisson reported right shoulder pain at that time, and this complaint showed up consistently in the records of subsequent visits. Dr. Fortier-(Bensenfl said he had no doubt that Dubuis-soris right shoulder was injured as a result of the work-related accident. Initial tests showed serious disc problems in the neck at C4-5, C5-6, and C6-7, and it was thought these were causing the right shoulder and arm pain. It was only after the cervical fusion that the doctors realized there was an independent cause of the right shoulder problem. On one of Du-buisson’s earliest visits to him, Dr. Fortier-Bensen’s notes show “guarded range of motion of the cervical spine, and right shoulder continues to cause him pain, he has a decreased range of motion of the right shoulder, pain, numbness, tingling associated.” He said this would also describe Dubuisson’s current condition as of the deposition date. Injections to his neck had taken care of some of the pain, but never improved his range of motion, ability to use his right shoulder, and weakness and dysfunction of his right upper extremity. Dr. Fortier-Bensen said that from the outset, Dubuisson had a neck problem and a shoulder problem and complained about the shoulder a great deal, even in the early days. As time went on, the shoulder pain consistently did not improve. So there was clearly something going on with the shoulder that needed to be addressed. Dr. Fortier-Bensen said that in hindsight, “it’s clear that his shoulder issue was a lot more involved than probably all of us imagined at the time.” He further stated that everything Dubuisson had ever told him concerning his injury was consistent with the diagnosis of a type 2 superior labral tear.

Dr. Logan’s deposition from February 2011 was also admitted as a joint exhibit. His notes showed that on Dubuisson’s first visit on May 2, 2002, he complained of cervical pain radiating down the right arm, and said his right hand and fingers would get numb. Dubuisson drew a pain diagram showing pain in his neck, his mid-back, and his right shoulder, as well as his fingers. On the June 17, 2002 visit, Dr. Logan’s notes showed Dubuisson’s complaints of neck pain were about the same, along with right shoulder and upper back pain. Those notes say that the “pain radiates primarily to the right shoulder girdle, out of the right tip of the acromion and down the medial border of the right shoulder.” On November 15, 2002, in the pre-surgery workup, Dr. Logan again noted pain radiating into the right trapezial and medial scapula region.

110Dr. Logan testified that after the cervical fusion surgery in December 2002, Dubuisson returned to his office on January 8, 2003. Dr. Susan Bryant, a physical medicine and rehabilitation physician who practiced with Dr. Logan, recorded that Dubuisson had muscle spasms and severe right shoulder problems. He was sent to physical therapy, where, at the first evaluation, there was decreased strength in the right shoulder and tenderness in the anterior bursa. Dr. Logan stated that all of those things certainly related to a shoulder derangement. On the May 2, 2003 visit, Dr. Logan’s handwritten notes show “neck, right shoulder, deep ache, and then under the exam, right shoulder pain with positive impingement, positive levator scapula pain.” The notes also show “trapezial motor point pain,” which he described as “pain right at the center of the shoulder.” Physical therapy notes from May 13 and 21 showed continuing treatment for the right shoulder. On June 6, 2003, Dr. Logan’s notes reflect that Dubuisson had right shoulder pain — a deep ache — also an indication of positive impingement. Those notes further stated that Dubuisson may need a right shoulder MRI and facet injections if it remained painful. Dubuisson’s last visit to Dr. Logan was on February 5, 2004, when he presented with right shoulder pain and with his right fingers numb. At that point, Dr. Logan noted that Du-buisson needed a repeat MRI of the cervical spine, a neurological evaluation, and a referral to Dr. Texada for the right shoulder rotator cuff.

Dr. Logan stated that the next time he met with Dubuisson was seven years later, on January 27, 2011, when he returned with complaints of continuing pain. Du-buisson described the location of the problem as the right shoulder, right upper arm, right hand, right fingertips, and right side of his neck. A repeat MRI of the cervical spine was recommended. Dr. Logan explained that the two-level anterior cervical diskectomy and fusion at the C4-5 and C5-6 levels that he had performed some eight or nine years earlier raised his concerns about the next or adjacent open segments being subject to increased force, resulting in breakdown above or below the fusion. (R405) Dubuisson returned to him with the MRI studies in early February 2011. Again he spoke of multiple problems, including difficulties with all activities of daily living and ^increased neck pain radiating to the right shoulder and right dominant arm. The MRI revealed some breakdown at the next open motion segment below his fusion, which was C6-7. Dr. Logan recommended treating the neck with selective facet injections to the two levels above and below the fusion, levels C3-4 and C6-7 bilaterally.

Regarding the comparison of the 2003 and 2007 MRIs and Dr. Donaldson’s opinion that the labral tear was present in both, Dr. Logan said, “Well, I would have suspected that anyway because a labral tear generally takes some type of force.” Dr. Logan summarized that “it is within medical reason, if he was complaining of shoulder pain after the accident, he certainly presented to me with shoulder pain and neck pain ... and [if] he was not complaining of severe shoulder symptomol-ogy prior to the accident, then it’s reasonable that the accident was a contributing factor to his shoulder pain.” [I]f he was working full-time and he says he began hurting after the accident, then that’s reasonable.”

After the 2007 MRI revealed the labral tear, Dubuisson was referred by Dr. Fortier-Bensen to Dr. Brian L. Fong, an orthopedic surgeon, whose clinic notes after the first visit in January 2008 state, “It does appear by the patient’s history and the accompanying documentation that the right shoulder injury is relatable to the work related injury of 2000_ His superior labral tear is consistent with a history of falling with him reaching out and grabbing something.” Dr. Fong’s treatment plan was to perform cortisone injections into the right shoulder. Dr. Fong tried the cortisone injections, but they did not provide the intended pain relief, and on July 31, 2008, he planned to set Dubuisson up for right shoulder arthroscopy with distal claviculectomy and superior labral repair. That surgery was not approved.

The record is replete with notes from other physicians who examined Dubuisson or simply examined some of his records. Many of them said they could not relate the right shoulder labral tear to the 2000 accident. However, given Dubuisson’s testimony, Dr. Fortier-Bensen’s testimony and medical records, Dr. Logan’s testimony and medical records, Dr. Fong’s medical records, and Dr. Donaldson’s testimony, there is certainly reasonable evidence demonstrating that, more probably than not, Dubuisson’s right |12shoulder injury was caused by his fail at work. Moreover, our review of the record in its entirety does not indicate that this finding was clearly wrong. The WCJ had consistent medical evidence from Dubuisson’s treating physicians to support this finding, and her choice to assign more weight to the opinions of those doctors than to others whose evaluations are also in evidence cannot be clearly wrong. Therefore, this court must affirm the finding that Dubuis-son’s right shoulder injury was caused by his work-related fall.

CHANGE IN PHYSICIANS

Amclyde and LIGA contend that Du-buisson’s change in pain management specialists was not a medical necessity, but was necessitated by his failing a drug test and being terminated as a patient. They state that the Workers’ Compensation Act provides a defense against paying benefits when an employee tests positive for non-prescribed medication, citing LSA-R.S. 23:1081. They further contend that even if he were entitled to change pain management specialists, he would not be entitled to the services of two new physicians, citing LSA-R.S. 2S:1121(B)(1), and that his reimbursement, if any, for out-of-pocket payments for such treatments should be limited to $750, pursuant to LSA-R.S. 23:1142.

Addressing first the argument based on LSA-R.S. 23:1081, we note that this statute precludes compensation benefits only when the employee’s injury was caused by alcohol intoxication or the use of a non-prescribed controlled substance at the time of the injury. See LSA-R.S. 23:1081(1)(b) and (5). There is absolutely no evidence in this record that Dubuisson had ingested alcohol or had used illegal drugs at the time of his accident. Therefore, this argument lacks merit.

Regarding an employee’s right to choose his own physician, LSA-R.S. 23:1121(B)(1) states:

The employee shall have the right to select one treating physician in any field or specialty. The employee shall have a right to the type of summary proceeding provided for in R.S. 23:1124(B), when denied his right to an initial physician of choice. After his initial choice the employee shall obtain prior consent from the employer or his workers’ compensation carrier for a change of treating physician within that same field or specialty. The employee, however, is not required to obtain approval for change to a treating physician in another field or specialty.

|1sAn employer has a duty to furnish all necessary medical treatment resulting from an employee’s work-related accident. See LSA-R.S. 23:1203(A). This includes palliative treatment to relieve an employee of pain caused by a work injury. Jennings v. Ryan’s Family Steak House, 07-0372 (La.App. 1st Cir.11/2/07), 984 So.2d 31, 39. Dubuisson chose Dr. Fortier-Bensen as his pain management specialist and continued to be treated by him from April 2000 until July 2010, when he was dismissed for taking pain medications that were not prescribed for him at that time. However, not long after that dismissal, due to his own very serious illness, Dr. Fortier-Bensen was forced to close his practice, and Dubuisson no longer had a pain management specialist of his own choosing. In Wilzcewski v. Brookshire Grocery Co., 10-1148 (La.App. 3rd Cir.3/16/11), 59 So.3d 530, 546, the court concluded that when the claimant’s initial pain management specialist had discharged her, she was entitled to see another physician for pain management treatment. Accordingly, Dubuisson was entitled to choose another pain management specialist after his initial choice in that specialty was no longer available.

In this case, Dr. Logan, who specialized in spinal surgery, referred Dubuis-son to Dr. Texada for treatment of his shoulder injury, because Dr. Texada was an orthopedic surgeon with a specialty in sports medicine. Dr. Logan also referred him to Dr. Sondes for pain management for the neck and shoulder, because he specialized in physical and rehabilitative medicine. Therefore, although the wording of the WCJ’s judgment does not make this distinction clear, the overall record shows that Dr. Sondes practiced pain management and was to serve as Dubuisson’s pain management physician, while Dr. Texada was to do whatever was necessary to treat the right shoulder injury, including surgery. Therefore, the WCJ did not err in requiring LIGA and Amelyde to approve both referrals, only one of which was for pain management.

| uLIGA and Amelyde further contend that payments for non-emergency diagnostic testing and treatment, including pain management, must be limited to $750, as stated in LSA-R.S. 23:1142, since there was no mutual consent of the payor and employee as to that treatment. The employer’s duty to furnish medical expenses is governed by LSA-R.S. 23:1203(A), which, in pertinent part, provides:

In every case coming under this Chapter, the employer shall furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedieal treatment recognized by the laws of this state as legal, and shall utilize such state, federal, public, or private facilities as will provide the injured employee with such necessary services.

Louisiana Revised Statutes 23:1142, in pertinent part, further provides:

B. Nonemergency care. (1) Except as provided herein, each health care provider may not incur more than a total of seven hundred fifty dollars in nonemer-gency diagnostic testing or treatment without the mutual consent of the payor and the employee as provided by regulation. Except as provided herein, that portion of the fees for nonemergency services of each health care provider in excess of seven hundred fifty dollars shall not be an enforceable obligation against the employee or the employer or the employer’s workers’ compensation insurer unless the employee and the payor have agreed upon the diagnostic testing or treatment by the health care provider.
E. Exception. In the event that the payor has denied that the employee’s injury is compensable under this Chapter, then no approval from the payor is required prior to the provision of any diagnostic testing or treatment for that injury.

According to subsection E, when compens-ability is denied, no approval by the employer or payor is required for testing or treatment. Stewart v. Livingston Parish Sch. Bd., 07-1881 (La.App. 1st Cir.5/2/08), 991 So.2d 469, 475. The statute does not specify when or how a denial of compensa-bility must occur; it merely states that if the payor denies that an injury is compen-sable, the employee need not seek approval for medical treatment. Id.

In this case, LIGA and Amclyde consistently denied liability for any treatment for the right shoulder injury. Therefore, the denial of compensability triggered the exception in subsection E. Since we agree with the WCJ that Dubuisson proved that the right shoulder injury was caused by his work-related accident, he was entitled to all reasonable and necessary treatment for that injury without approval from LIGA and Amclyde. See Quick v. Terrebonne Gen. Med. Ctr., 09-1101 (La.App. 1st Cir.2/10/10), 35 So.3d 287, 290. Accordingly, the statutory limit on payments is not applicable.

COMPENSATION BENEFITS

Amclyde and LIGA contend that Du-buisson should not have continued to receive supplemental earnings benefits (SEBs), because he was released for light duty or sedentary work by several physicians. Therefore, he did not prove he could not earn 90% of his pre-accident wages. They further note that LSA-R.S. 23:1221(3)(d) limits SEBs to 520 weeks, but they paid his benefits until November 18, 2010, which was beyond that time period. They claim that Dubuisson sabotaged a 2005 functional capacity evaluation in order to keep from having to return to work. Also, Amclyde and LIGA contend that, because Dubuisson did not prove that he could not engage in any occupation for wages, he did not establish his right to temporary total disability benefits (TTDs). Finally, they argue that the benefit rate to which they stipulated at trial, $384 per week, was incorrect and should be $349.60 per week.

Regarding Dubuisson’s entitlement to SEBs, the statute providing for those benefits is LSA-R.S. 23:1221(3). The threshold prerequisite to recovery of SEBs, as stated in subsection (3)(a) of that statute, is that the employee’s injury results in his inability to earn wages equal to ninety percent or more of the wages he was earning at the time of the injury. Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1006-07 (La.1989); Carignan v. Louisiana Compressor Maint. Co., 02-0180 (La.App. 1st Cir.12/30/02), 836 So.2d 476, 480. The injured employee bears the burden of proving by a preponderance of the evidence that the injury resulted in his inability to earn that amount. Daigle, 545 So.2d at 1007. The analysis is necessarily a facts and ¡^circumstances one in which the court is mindful that workers’ compensation law is to be liberally construed in favor of coverage. Id. In determining if an injured employee has made a prima facie case of entitlement to SEBs, the court may and should take into account all those factors which might bear on the employee’s ability to earn a wage. Id. It is not until the employee successfully bears his burden of proving his disability and resultant inability to earn at least ninety percent of his pre-injury wages that the burden shifts to the employer who, in order to defeat the employee’s claim for SEBs or to establish the employee’s earning capacity, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered or available to the employee in his or the employer’s community or reasonable geographic region. Carignan, 836 So.2d at 480.

An employee seeking TTDs in accordance with LSA-R.S. 23:1221(1)(c) must prove by clear and convincing evidence that he is physically unable to engage in any gainful occupation, whether or not the same type of work he was engaged in at the time of injury. Alexander v. Sanderson Farms, Inc., 08-2225 (La.App. 1st Cir.5/8/09), 17 So.3d 5, 10. Clear and convincing proof has been defined as an intermediate standard falling somewhere between the ordinary “preponderance of the evidence” civil standard and the “beyond reasonable doubt” criminal standard. Clear and convincing proof requires objective medical evidence of the disabling condition causing the employee’s inability to engage in any employment. The claimant must provide objective, expert testimony as to his medical condition, symptoms, pain, and treatment, in addition to personal testimony, in order to meet this standard. The factual finding of whether a claimant is entitled to TTDs is subject to the manifest error or clearly wrong standard of appellate review. Roussell v. St. Tammany Parish Sch. Bd., 04-2622 (La.App. 1st Cir.8/23/06), 943 So.2d 449, 457-58, writ not considered, 06-2362 (La.1/8/07), 948 So.2d 116; Delatte v. Pala Group, LLC, 09-0913 (La.App. 1st Cir.2/10/10), 35 So.3d 291, 298-99, writ denied, 10-0562 (La.5/7/10), 34 So.3d 865.

Dubuisson explained that his inability to perform work of any kind was due to the continuing severe pain in his neck and right shoulder, which was only partially relieved 117by pain medications and facet injections. He testified that he could not lift anything over five pounds and could no longer go fishing, mow his lawn, or help his wife with household chores. Because of the right shoulder pain, which radiated down to his elbow and caused numbness and tremors in his fingers, his entire right arm and hand were virtually useless. He stated, “To me, it’s dead weight.” Obviously, his previous work as a pipefitter or welder was totally impossible. In addition, the pain medications that he had to take impaired his ability to drive safely, as demonstrated by the July 2003 accident, making it necessary for him to rely on his wife and others for transportation. Dubuisson said he did not feel he could take a job, because he was not supposed to be driving while taking medication, and did not know how he could get to and from work every day. He said that he had been to jail once because of that and did not want to go through that again in his life, stating, “I don’t like jail.” Dubuisson testified that he had applied for some of the jobs that vocational rehabilitation counselors had recommended for him, but once the prospective employers learned that he was on medication, they were not interested in him.

Both Dr. Fortier-Bensen and Dr. Logan supported Dubuisson’s claim that he was and had been completely unable to work because of continuing pain and the need to be on strong pain medications at all times. Dr. Fortier-Bensen’s medical records include a letter to LIGA’s attorney on December 20, 2002, stating that he had seen Dubuisson in the past for a knee problem, and he always made attempts to be at work and never looked for ways to get out of work. Dr. Fortier-Bensen further stated that every diagnostic work-up that had been done since the work-related accident indicated that Dubuisson could not return to work as a pipefitter.

Dr. Fortier-Bensen had signed a release for sedentary work at one point in Dubuis-son’s treatment, but stated in his deposition that his intention was to let him try something, so LIGA and Amclyde would realize that he was unable to perform even sedentary jobs. He later recanted this release and would not release Dubuisson for any work. Dr. Fortier-Bensen said, “at this point, he’s not capable of doing the job.” At the time of trial, Dubuisson was taking daily maximum doses of Lortab for pain, Soma for | ^muscle spasms, Paxil for depression and pain, Ambien for inability to sleep, and was also using Lidoderm patches for pain. Dr. Fortier-Bensen stated:

I don’t know how anybody with the amount of pain he’s had would have survived if he hadn’t had the medicines. Because, having had pain, myself, this is something that gets to the point where it just wears you down, not from a standpoint of Cortisol levels, but also just from never getting good rest because you can’t sleep well at night.

He said Dubuisson also suffered from depression, which is “pretty consistent with people with chronic pain.” The pain, the medications, the depression, and the inability to sleep would all interfere with his ability to do any of the jobs recommended by a vocational rehabilitation specialist. Dr. Fortier-Bensen noted that the ability to drive was always a difficult issue, because pain could make a person’s ability to drive just as bad as that of someone who takes medicine. He concluded that “the patient remains still temporarily totally disabled.”

Asked if Dubuisson could return to work, Dr. Logan said he could possibly do some sedentary work, but based on his exam, Dr. Logan would say no to Dubuis-son’s ability to do a forty-hour work week with his right shoulder pain and neck pain without excessive absences. Also, he would surely be on narcotics for pain management. Dr. Logan said, “I would not release him for duty. He’s unfit for duty at this time.” He clarified his earlier comments by saying, “By the truest letter of sedentary, I’ve never seen the type of work that he might be able to do available, in reality.” Dr. Logan also said he would not release Dubuisson to work until they got through with the treatments to the new cervical problem and newly diagnosed right shoulder problem.

On cross-examination, Dr. Logan said, “Well, the first time I saw him, he had something wrong with his shoulder, in plain English.” Asked if Dubuisson could do sedentary work now, Dr. Logan said, “[I]n my experience, you’re going to have ... probably significant absences, probably need for transportation, need for changing positions frequently, on narcotic medication, and a really reduced hours a week. It just doesn’t become practical.” “[W]e have to go by the thing, if you’re on narcotics, you can’t operate heavy equipment, drive — or I can’t recommend it.” Both doctors recognized that the right shoulder problem had been there from the beginning after [ 19Pubuisson’s fall, but had not been properly diagnosed, resulting in the treatments being focused on his neck. Dr. Logan said Dubuisson was unfit for any kind of work and could not be considered for release until after the right shoulder surgery and a follow-up evaluation of his neck condition.

The record does include opinions from other physicians and vocational rehabilitation counselors who concluded Dubuisson could perform sedentary work. However, the WCJ had this information when she considered his entitlement to continuing benefits. In addition to his own testimony, Dubuisson provided objective expert testimony as to his medical condition, symptoms, pain, and treatment options from Dr. Fortier-Bensen and Dr. Logan. These doctors, who provided the vast majority of his treatments, agreed that the right shoulder injury had existed since his work-related accident and that its severity and the pain medications required to treat it precluded Dubuisson’s ability to perform any work. Therefore, Dubuisson carried his burden of proving that he was entitled to TTDs, and our review of the record as a whole demonstrates that the WCJ’s award of those benefits was not manifestly erroneous.

With respect to the amount of monthly benefits, the parties jointly stipulated that the monthly benefit amount was $384. There is no evidence in the record showing any lesser amount. Therefore, the WCJ correctly awarded that amount, retroactive to the date benefits were discontinued.

REMAND

In addition to TTDs, the WCJ awarded Dubuisson “all medical bills and expenses, including any unpaid mileage, at issue herein pertaining to the right shoulder and neck and same shall be paid by defendant to the healthcare provider, if unpaid, and reimbursement to claimant for those medical bills and expenses paid by claimant .... ” However, the judgment does not reflect the specific dollar amounts that Amclyde and LIGA are to pay to the healthcare providers and/or to Dubuisson. Accordingly, we find it necessary to remand this case for a full hearing to determine those amounts. After that hearing, the WCJ is to render a new judgment reflecting the specific dollar |¡>namounts that must be paid for the medical expenses connected to Dubuisson’s work-related injuries to his neck and right shoulder. See Stewart, 991 So.2d at 479.

CONCLUSION

For the above reasons, we affirm in part the judgment of August 31, 2011. However, we remand the case in part for further proceedings consistent with the law and this opinion concerning a full hearing and a new judgment determining the exact dollar amounts of medical bills and expenses to be paid to healthcare providers or to be reimbursed to Dubuisson by Amclyde and LIGA. All costs of this appeal are assessed to Amclyde and LIGA.

AFFIRMED IN PART; REMANDED IN PART.

WELCH, J., concurs.

      . LIGA is the successor insurance association to the failed Reliance Insurance Company, which had provided workers’ compensation insurance to Amclyde.

      . Dr. Fortier-Bensen was extremely ill with a parasitic wasting disease at this time and had not been at his clinic to give Dubuisson facet injections to relieve his shoulder pain. He eventually closed his practice and referred Dubuisson to other pain management specialists.

      . The judgment states that the injury occurred on March 24, 2010; however, this appears to be a typographical error, since all the evidence indicates the accident occurred on March 24, 2000.

      . Dr. Fortier-Bensen had prescribed Xanax for Dubuisson, but had discontinued that prescription some time earlier. Dubuisson took some of the left-over Xanax and some valium given to him by a friend.

      . Dubuisson could not function without some kind of pain treatment, and eventually began seeing Dr. Joseph J. Mogan, III, for whose services he paid out-of-pocket, because LIGA would not approve the transfer to him. However, Dubuisson did not get the pain relief he needed from Dr. Mogan, and did not really “choose” him for pain management. Dr. Mo-gan was simply the only available alternative, since other doctors consulted by Dubuisson were too expensive, and LIGA never approved the referral to him or Dr. Sondes.

      . The payments would include those set out in LSA-R.S. 23:1203(D), which provides:
      In addition, the employer shall be liable for the actual expenses reasonably and necessarily incurred by the employee for mileage reasonably and necessarily traveled by the employee in order to obtain the medical services, medicines, and prosthetic devices, which the employer is required to furnish under this Section, and for the vocational rehabilitation-related mileage traveled by die employee at the direction of the employer. When the employee uses his own vehicle, he shall be reimbursed at the same rate per mile as established by the state of Louisiana for reimbursement of state employees for use of their personal vehicle on state business. The office shall inform the employee of his right to reimbursement for mileage.

        See Quick, 35 So.3d at 290.


source: Caselaw Access Project

author: McDonald, j.

license: Public Domain

text:
    Peter ALBERT v. AIR PRODUCTS AND CHEMICALS and ESIS.
    No. 2012 CA 0773.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 6, 2013.
    Rehearing Denied March 7, 2013.
    Racheal Bellemin, Daniel J. Dazet, Baton Rouge, LA, for Plaintiff-Appellee Peter Albert.
    Kirk L. Landry, Baton Rouge, LA, for Defendant/Appellant Air Products and Chemicals, Inc.
    Before KUHN, PETTIGREW, and McDonald, jj.
   McDonald, j.

|2In this workers’ compensation case Air Products and Chemicals, Inc. (Air Products), appeals a judgment of the Office of Workers’ Compensation (OWC) in favor of claimant, Peter Albert. For the reasons that follow, we affirm.

Mr. Albert was employed at Air Products as a lead operator. He asserted he injured his shoulder and neck on January 7, 2010, when lifting a gear bag onto a company pickup truck for a work-related trip to Texas for training. The next day. he reported the injury to his supervisor and was treated at a U.S. Health Works Medical Group office in Texas. He did have a previous injury to the left shoulder. After returning to Baton Rouge, Mr. Albert underwent testing and treatment. He was unable to return to his job and received short term disability payments for several months from MetLife.

On July 7, 2010, Mr. Albert filed a disputed claim for compensation, asserting that no wage benefits had been paid, no medical treatment had been authorized, and asking for penalties, attorney’s fees, and legal interest. After a trial, the OWC ruled in favor of Mr. Albert, finding that he sustained a left shoulder and cervical injury on January 7, 2010, in the course and scope of employment. The OWC awarded future medical expenses related to treatment of the specified injury, ordered vocational rehabilitation, specified that no penalties or attorney’s fees would be awarded, and provided for legal interest on the monies owed. The judgment further provided:

2. Indemnity: Temporary Total Disability Benefits were awarded from January 12, 2010, to April 5, 2010, or 12 weeks. However, an ojfset was awarded for the receipt of Short Term Disability payments. This offset will apply to the aforementioned award of Temporary Total Disability Benefits and any future|a:indemnity until satisfied. No award of back-due indemnity was granted based on the finding that claimant failed to prove by clear and convincing evidence an entitlement to Supplemental Earnings Benefits after April 5, 2010. Wage records indicate an Average Weekly Wage of $U11.98 and the corresponding maximum indemnity rate of $577.

Air Products appealed that judgment, and asserts that the OWC: 1) committed legal error in determining that Mr. Albert was entitled to vocational rehabilitation services; 2) committed manifest error in ailing that Mr. Albert sustained an injury by an unwitnessed accident in the course of his employment, where the evidence discredits and casts serious doubt upon his version of the incident and his version is not corroborated by the circumstances following the alleged accident; and 3) committed manifest error in ruling that Mr. Albert’s cervical spine was affected in his unwitnessed accident and awarding future medical benefits for that body part.

On August 14, 2012, this court issued a show cause order, noting that the amount of the offset was not specified in the judgment, and questioning whether, the judgment was a valid judgment. In response, Air Products argues that as no indemnity benefits were awarded, no applicable offset was specified, and that as Mr. Albert did not challenge the denial of indemnity benefits, there is no need to address the issue of an offset. We agree, finding that the judgment is final and appealable. Thus, the show cause order is dismissed, and the appeal is maintained.

THE MOTION TO SUPPLEMENT THE RECORD

Mr. Albert filed a motion to supplement the record with the OWC’s oral reasons for judgment. However, shortly after his motion was filed, the record was supplemented with the transcript of the OWC’s oral reasons for judgment. Therefore, the motion to supplement the record is denied as moot.

|4THE standard of review

Whether a claimant has carried his or her burden of proof and whether testimony is credible are questions of fact to be determined by the trier of fact. Allman v. Washington Parish Police Jury, 04-0600, p. 3 (La.App. 1 Cir. 3/24/05), 907 So.2d 86, 88. A coui’t of appeal may not set aside a hearing officer’s finding of fact in absence of “manifest error” or unless it is “clearly wrong.” McCray v. Delta Industries, Inc., 00-1694, p. 4 (La.App. 1 Cir. 9/28/01), 809 So.2d 265, 269. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, pp. 7-8 (La.7/1/97), 696 So.2d 551, 556. If the fact finder’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though 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).

Air Products argues in its second and third assignments of error that the OWC manifestly erred in finding that Mr. Albert was injured in the course and scope of his employment and that the OWC erred in finding that Mr. Albert’s cervical spine was affected by this unwitnessed accident and awarding future medical expenses for that body part. In making its decision, the OWC found that there was medical evidence in the record that corroborated Mr. Albert’s version of events. Further, the OWC determined that the left shoulder and cervical spine condition were related to the accident, but that the right shoulder and SLAP tear were not related. We find that, based upon the evidence, these OWC findings are reasonable in light of the record reviewed in its entirety.

Air Products argues in its first assignment of error that the OWC erred in determining that Mr. Albert was entitled to vocational rehabilitation services. After |fia thorough review of the record, we find no error in the OWC determination that Mr. Albert was entitled to vocational rehabilitation services.

After a thorough review of the record, we find no manifest error by the OWC. Thus, we affirm the judgment of the OWC. Costs are assessed against Air Products and Chemicals, Inc.

SHOW CAUSE ORDER DISMISSED AND APPEAL MAINTAINED; AFFIRMED; MOTION TO SUPPLEMENT THE RECORD DENIED AS MOOT.

      . Air Products and "ESIS” filed exceptions raising the objections of lack of procedural capacity and no right of action on behalf of ESIS, Inc, asserting that it was a third-party administrator for Air Products and that Mr. Albert had no right of action against it. Further, the exception asserted that "ESIS” as named in the suit, was a non-entity and thus lacked the procedural capacity to be sued. These exceptions were not set for a hearing, and no judgment is found in the record concerning these exceptions.


author: WILLIAMS, J.

text:
    Ray A. FANCHER, Plaintiff-Appellant v. Robert Glenn PRUDHOME, Steven Matthew Prudhome, Frances Bryan Prudhome and William Cody Robbins, Defendants-Appellees.
    No. 47,575-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2013.
    Rehearing Denied May 8, 2013.

      Bernard S. Johnson, Kristina B. Gustav-son, Shreveport, LA, for Appellant, Ray A. Fancher.
    Katherine C. Dorroh, for Appellees, Robert Glenn Prudhome and Frances Bryant Prudhome.
    Billy R. Pesnell, Shreveport, LA, for Appellees, Diamond Shield Services, L.L.C., William Cody Robbins and Steven Matthew Prudhome.
    Before WILLIAMS, MOORE and HARRISON (Ad Hoc), JJ.
   WILLIAMS, J.

|, The plaintiff, Ray Fancher, appeals a judgment awarding him $12,463.74 as the value of his share of a limited liability company. The trial court found that the fair market value of Fancher’s interest was best determined by using the book value of the company’s assets. For the following reasons, we affirm.

FACTS

In March 2008, William Cody Robbins filed articles of organization forming Diamond Shield Services, LLC (“Diamond Shield”), a limited liability company with a stated term of 50 years. In April 2008, Steven Prudhome and Ray Fancher became members of Diamond Shield, with each acquiring a one-third interest in the company. Robbins retained a one-third interest and served as the managing member. As consideration for his interest, Fancher agreed to pay ten dollars and provide work and capital for the company. In June 2008, Fancher loaned $15,000 to Diamond Shield for payroll expenses.

At the time of Diamond Shield’s creation, Fancher was employed as a consultant by Bowman’s Oilfield Services, LLC, through which he performed consulting services for NFR Energy. Fancher then directed the business of NFR Energy to Diamond Shield. NFR Energy became the primary source of business for Diamond Shield.

To obtain additional capital for operating expenses, Robbins and Prudhome entered into a loan agreement with One Smart Tool (“OST”). From July to September 2008, OST loaned or advanced approximately $400,000 to Diamond Shield. The terms of the loan required Diamond | gShield to pay 50% of its gross profits to OST. The loan agreement did not list Fancher as a member of Diamond Shield, nor did Robbins and Prudhome advise Fancher about the loan. After the OST loan, Diamond Shield operated profitably. From April 2008 to April 2009, Fancher received $130,000 in disbursements from Diamond Shield. Robbins and Prudhome managed the daily operations of Diamond Shield and each received over $400,000 in payments during the life of the company.

In February 2009, Fancher filed a lawsuit complaining that he was denied access to the building and records of Diamond Shield. In March 2009, while reviewing the company’s financial records, Fancher learned of the OST loan agreement and about various leasing arrangements that were done without his knowledge. Asserting that the OST loan agreement was a primary breach of confidence, Fancher sought withdrawal from Diamond Shield by letter dated May 13, 2009. The next day, Robbins and Prudhome refused Fancher’s demand. The plaintiff, Fancher, then filed an amended petition for withdrawal and for a determination of the value of his share in the company. In December 2009, the trial court granted plaintiffs motion for partial summary judgment and allowed him to withdraw his membership in Diamond Shield retroactive to May 13, 2009.

At trial, the issue was the determination of the fail' market value of the plaintiffs one-third interest in Diamond Shield at the time of his withdrawal. The plaintiff presented the expert testimony of Ben Woods, CPA, who opined that Diamond Shield’s fair market value was $2,000,000 and that plaintiffs share equaled $666,666. Wood’s calculations were | abased on a “going concern” analysis and he did not reduce the amount by discounts.

In its written ruling, the trial court noted that as a minority interest holder in Diamond Shield, plaintiff could not make business decisions or require distributions. The trial court found that because of plaintiffs unique role in providing almost the exclusive source of business to Diamond Shield, his interest was not marketable because its value was indistinguishable from plaintiff himself. Thus, the court concluded that the fair market value of plaintiffs interest would be more accurately attained by using the book value of all company equity, which Woods listed as $37,768.90. The trial court rendered judgment setting the value of plaintiffs one-third interest in the company at $12,463.74. In denying plaintiffs motion for new trial, the court found that Robbins and Prudhome were not personally liable for the debts of Diamond Shield, because they had not acted with gross negligence. The plaintiff appeals the judgment.

DISCUSSION

The plaintiff contends the trial court erred in valuing his interest in Diamond Shield. Plaintiff argues that the court’s determination of value failed to consider all of the company’s assets at the time of his withdrawal.

A withdrawing or resigning member of a limited liability company is entitled to receive the fair market value of the member’s interest as of the date of withdrawal. LSA-R.S. 12:1325(C). Generally, fair market value is the price a willing buyer would pay to a willing seller for a certain item of property in an arm’s length transaction. Cannon v. Bertrand, 08-1073 (La.1/21/09), 2 So.3d 393. The determination of fair market value may be subject to discounts to reflect that the member’s share is a minority interest or that the interest is less marketable for various reasons. Such minority or lack of marketability discounts should be used sparingly and only when the facts support their use. Cannon, supra. The value of a withdrawing member’s interest may be determined in a number of ways, including book value, market value of the underlying company assets, fair market value of the member’s interest or other means, depending on the circumstances requiring the valuation. See Cannon, supra.

In the present case, plaintiff presented the testimony of Benjamin Woods, CPA, who was accepted as an expert in business valuation. Woods testified that in determining the value of Diamond Shield, he had reviewed the company’s tax returns and year-end financial statements for 2008 and 2009. Woods explained that businesses can be valued under an asset, income or market approach and that he had used a going concern analysis, which assumes the business will continue in operation.

Woods testified that his assets-approach value was based on the assets listed on the books of Diamond Shield for the year ending in December 2008. Woods stated the unadjusted book value of all equity was $87,769. To determine the adjusted, or fair market, value of those assets, Woods applied estimates for Diamond Shield’s inventory and accounts receivable based on published IRS data. Woods explained that the income, or discounted cash flow, method involves forecasting future company earnings and then applying a discount to get the present value. He stated |5that the market approach uses prior sales of comparable companies in the same industry to determine value.

In determining Diamond Shield’s value, the trial court found that the income approach was not applicable because the company’s future cash flow could not be assumed given the plaintiffs role in providing almost all of its business. The court also found that the market approach did not apply because Diamond Shield was a small, closely held company with profits tied to the skill of its members, so that plaintiffs interest was indistinguishable from himself. Based upon this record, we cannot say the trial court’s factual findings are clearly wrong. Thus, the court did not err in using the asset approach to determine the value of Diamond Shield.

In his appellate brief, the plaintiff refers to a footnote in the trial court’s written ruling and contends the' court incorrectly applied a minority discount to reduce the value of his interest as determined by Woods. Although the court discussed discounts in describing the nature of plaintiffs interest and the reason why the income and market approaches were not applicable, the court did not apply a discount in selecting the book value of the company’s equity as the basis of fair market value. Thus, the plaintiffs contention lacks merit.

The plaintiff argues that the trial court was clearly wrong in valuing the assets of Diamond Shield because at the time of his withdrawal in May 2009, the company possessed an additional $500,000 cash in its bank account. In his report, Woods listed the net book value of the company as $37,769 as of December 2008. Woods testified that he had not received | information about assets that the company owned in May 2009.

Marlon Barlow, an accountant, testified that he had prepared Diamond Shield’s year-end financial statements and federal tax returns for the years 2008, 2009 and 2010. Barlow stated that the company reported a loss of $97,915 in 2009 resulting from a decline in business that occurred in the third or fourth quarter of that year. Barlow testified that in May or June 2009, he had recommended that Diamond Shield increase the salaries of its members because there was “a lot of money in the bank” at the time.

The plaintiff asserts that Barlow’s testimony proves that Diamond Shield’s value was at least $500,000 in May 2009. However, we note that although Barlow testified that the company had a lot of money in the bank, he did not specify the amount of $500,000 and at trial, plaintiff did not ask Barlow whether he knew the amount of cash contained in Diamond Shield’s bank account in May 2009. Thus, we cannot say the trial court was clearly wrong in finding that the evidence failed to show that Diamond Shield had $500,000 cash in May 2009.

The plaintiff also contends the trial court should have accepted Woods’ expert testimony that the fair market value of all equity, or Diamond Shield’s adjusted book value, was $686,403. The trier of fact is entitled to assess the credibility and weigh the opinion of an expert just as with other witnesses. The effect and weight given to the expert’s testimony depends upon the validity of the underlying facts relied upon by the expert and rests within the broad discretion of the trial court. Head v. Head, 30,585 (La.App.2d Cir.5/22/98), 714 So.2d 231.

|7In this case, Woods testified that the figure for the company’s adjusted book value included his estimates of amounts for inventory and accounts receivable derived from IRS ratio data. As the trial court pointed out, the evidence did not show that the inventory amount was accurate, since the company leased most of its equipment and provided workers for jobs, so that there was no need to keep an inventory of goods. Nor was it shown that the IRS ratio data corresponded to the company’s actual accounts receivable in May 2009.

Based upon the evidence presented, we cannot say the trial court abused its discretion in using the book value of the company’s assets in determining that the fair market value of the plaintiffs interest is the amount of $12,463.74. Thus, the assignment of error lacks merit.

Liability

The plaintiff contends the trial court erred in finding that Robbins and Prudhome were not personally liable to pay his withdrawal distribution. The plaintiff argues that Robbins and Pru-dhome are liable because they were grossly negligent in agreeing to a loan contract assigning 50% of Diamond Shield’s profits to OST.

A member who is a manager has a fiduciary duty to the limited liability company and its members. LSA-R.S. 12:1314(A)(1). A member or manager shall not be personally liable to the limited liability company or its members for monetary damages unless he acted in a grossly negligent manner. LSA-R.S. 12:1314(B). Gross negligence is defined as a reckless disregard of, or a carelessness amounting to indifference to, the best | ^interests of the limited liability company or its members. LSA-R.S. 12:1314(0).

In the present case, William Robbins testified that when Diamond Shield was formed, he thought that Fancher would loan the company sufficient money to operate until it began receiving payment for work performed. Robbins stated that Fancher did not provide such funding. Robbins testified that he signed the loan agreement with OST because the money was necessary to keep Diamond Shield operating.

Ray Fancher testified that when he became a member of the company he loaned $15,000 to Diamond Shield, which repaid the money without interest. Fancher stated that he did not loan any additional money to the company, but that he did help Diamond Shield get work from NFR Energy.

Based upon the evidence presented, we cannot say the trial court was clearly wrong in finding that Robbins and Pru-dhome did not act with reckless disregard of the best interests of Diamond Shield by agreeing to a loan that was necessary to keep the company operating. Thus, the plaintiffs argument that Robbins and Pru-dhome are personally liable due to gross negligence lacks merit.

The plaintiff also argues that Robbins and Prudhome are personally liable for the plaintiffs withdrawal distribution because they accepted distributions of $166,000, despite knowing that Diamond Shield was indebted to plaintiff for his one-third interest. No distribution shall be made if as a result, the limited liability company would not be able to pay its debts as they become due in the usual course of business. LSA-R.S. |fl12:1327(A)(l). Each member who knowingly votes for or assents to a distribution in violation of Section 1327 shall be jointly and severally liable to the limited liability company for the amount of the distribution that exceeds the amount which could have been lawfully distributed. LSA-R.S. 12:1328.

In the present case, the plaintiff has not presented evidence to support his assertion that the September 2009 distributions to Robbins and Prudhome caused Diamond Shield to be unable to pay its debts as they became due. In September 2009, the company also reserved the amount of $300,000 for the cost of operations. Plaintiff has not shown that this amount was insufficient to pay the company’s debts as they became due in the ordinary course of business. Based upon this record, the evidence does not demonstrate that the September 2009 distributions were in violation of the statute. Consequently, the assignment of error lacks merit.

CONCLUSION

For the forgoing reasons, the trial court’s judgment is affirmed. Costs of this appeal are assessed to the appellant, Ray Fancher.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, CARAWAY, DREW, MOORE and HARRISON (Ad Hoc), JJ.

Rehearing denied.


author: PETERS, J.

text:
    Robbie TRAHAN v. DOERLE FOOD SERVICES, LLC, et al.
    No. CA 12-1121.
    Court of Appeal of Louisiana, Third Circuit.
    March 13, 2013.

      John Edmund McElligott, Jr., Kevin M. Dills, Davidson, Meaux, etc., Lafayette, LA, for Defendants/Appellants, HUB Enterprises, Inc., First Mercury Ins. Co.
    Susan A. Daigle, Daigle, Jamison & Rayburn, Lafayette, LA, for Defendants/Appellees, Hercules Liftboat Co., LLC, Doerle Food Services, LLC.
    Kenneth Paul Mayers, Attorney at Law, Lafayette, LA, for PlaintiffiAppellee, Robbie Trahan.
    Christopher T. Lee, Attorney at Law, Lafayette, LA, for Plaintiff/Appellee, Robbie Trahan.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   PETERS, J.

_JjThis appeal arises from a suit filed by Robbie Trahan against Hercules Liftboat Company, LLC (Hercules) and Doerle Food Services, LLC (Doerle Food Services) seeking to recover damages he sustained in an August 14, 2007 accident. In that litigation, Hercules filed a third-party demand against Trahan’s employer, HUB Enterprises, Inc.(HUB) and its liability insurer, First Mercury Insurance Company (First Mercury), seeking to recover the expenses it incurred in defending Trahan’s lawsuit. The matter now before us involves an appeal by HUB and First Mercury seeking reversal of part of the grant of a summary judgment in favor of Hercules awarding it indemnification from HUB for the expenses it incurred in the litigation. For the following reasons, we reverse that part of the trial court’s grant of the summary judgment addressed in this appeal, and remand this matter to the trial court for further proceedings.

DISCUSSION OF THE RECORD

The basic facts applicable to this appeal are not in dispute. On August 8, 2006, HUB and Hercules entered into a written agreement entitled “SECURITY CONTRACT” (hereinafter referred to as “Security Contract”) wherein HUB, as an independent contractor, agreed to provide Hercules with “uniformed/unarmed, guard protection service” at locations to be identified by Hercules. In a separate document described as an “ACCESS AGREEMENT” (hereinafter referred to as “Access Agreement”) made effective August 8, 2006, HUB and Hercules agreed to indemnify each other for acts or omissions of their respective employees or agents.

One of the locations on which HUB ultimately provided security services was property in Lafayette, Louisiana, that Hercules subleased from Doerle 12Properties, LLC (Doerle Properties) pursuant to a written agreement entitled “SUBLEASE AGREEMENT” (hereinafter referred to as “Sublease Agreement”) made effective October 7, 2005. This Sublease Agreement also contained an indemnity agreement wherein Hercules agreed to indemnify Doerle Properties for certain claims made against it.

On August 14, 2007, Robbie Trahan was working on the Doerle Properties location when a severe storm caused his guard shack to topple over. One year later, he instituted this suit for damages against Hercules and Doerle Food Services.

After both defendants joined issue in the litigation by filing answers, Hercules filed a third-party demand against HUB and First Mercury. In this December 21, 2009 filing, Hercules sought judgment against HUB “for defense and for indemnification for all amounts for which HERCULES may be cast in judgment or may pay in settlement to [Robbie Trahan], for all costs and attorney’s fees incurred in prosecuting th[e] Third Party Demand, and for all costs and attorney’s fees incurred by HERCULES in defending [Robbie Tra-han]’s demand.” Additionally, Hercules sought judgment against HUB “for defense and for indemnification for all amounts which HERCULES may be cast in judgment or may pay in settlement to the plaintiff in connection [Robbie Tra-han’s claim against DOERLE and for all costs and attorney’s fees incurred by HERCULES in defending [Robbie Tra-hanj’s demand against DOERLE.” Hercules sought similar relief from First Mercury.

On May 5, 2010, Hercules filed a motion for summary judgment addressing the relief prayed for in its third-party demand. This motion was followed on May 17, 2010, by a cross-motion for partial summary judgment filed ■ by HUB and First |sMercury seeking a judgment to the effect that they did not owe indemnity to Hercules for any expenses associated with its indemnification obligations to Doerle Food Services.

The motion and cross-motion were heard by the trial court on July 12, 2010. After listening to the oral arguments and considering the evidence before it, the trial court rejected the cross-motion for partial summary judgment filed by HUB and First Mercury, and granted Hercules the relief it prayed for, but only as to HUB and not First Mercury. The August 10, 2010 judgment arising from this ruling reads in pertinent part as follows:

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT THE Motion for Summary Judgment filed by HERCULES is GRANTED in part. Specifically, this Court finds that a valid contract for defense and indemnity was in effect between HERCULES and HUB at the time of the alleged August 14, 2007 incident involving Plaintiff, Robbie Trahan, and, therefore, HUB owes contractual defense and indemnity to HERCULES, with respect to the claims of plaintiff, ROBBIE TRA-HAN, against HERCULES, on all amounts for which HERCULES may be cast in judgment or may pay in settlement to the plaintiff, and for all costs and attorney fees incurred by HERCULES in defending plaintiffs claims.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the above referenced contract for defense and indemnity between HERCULES and HUB extends to and covers the contractual defense and indemnity claim made by Defendant, DOERLE FOOD SERVICES, LLC (“DOERLE”), against HERCULES pursuant to a contract that was in effect between DOERLE and HERCULES at the time of the alleged August 14, 2007 incident.

It is this second paragraph of the judgment that gives rise to this appeal.

The judgment rendered did not constitute a final judgment for the purposes of an immediate appeal. La.Code Civ.P. art. 1915(B). However, before the matter went to trial on the merits, Robbie Trahan settled his claims against Doerle Food Services and Hercules. On June 12, 2012, the trial court, executed an order wherein |4Mr. Trahan, HUB, and First Mercury dismissed all of their claims against Doerle Food Services. In that pleading, HUB and First Mercury reserved all of their rights to fully litigate the indemnification issues — including the right to appeal the August 10, 2010 judgment as well as the right to recover certain sums they had paid to Doerle Food Services under protest pursuant to that judgment. Twenty-four days later, on June 26, 2012, Robbie Trahan dismissed his claims against Hercules, acknowledging that he had received nothing from Hercules for the dismissal.

The dismissal of the principal claims had the effect of making the judgment on the indemnity claims final. Recognizing this change in the posture of the judgment, on July 10, 2010, HUB and First Mercury filed a motion to appeal that portion of the August 10, 2010 judgment ordering indemnification to Hercules for any amounts Hercules might be required to pay Doerle Food Services under the terms of the Sublease Agreement with Doerle Properties. The trial court granted the motion on July 12, 2012. In their appeal, HUB and First Mercury asserted in their one assignment of error that the trial court erred in concluding that the indemnity provisions of the Access Agreement extended to cover the indemnification obligations owed by Hercules to Doerle Properties under the Sublease Agreement. Under these facts, HUB and First Mercury argue, the trial court should have granted their motion for partial summary judgment and rejected Hercules’ motion for summary judgment on that issue.

OPINION

“Appellate courts review grants of summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, that is, whether there is a genuine issue of material fact Land whether the mover is entitled to judgment as a matter of law.” Alexander v. Terra Nova Ins. Co., Ltd., 06-1348, p. 4 (La.App. 3 Cir. 3/7/07), 953 So.2d 152, 155. A fact is “material” if it influences a litigant’s ultimate success, potentially assures or prohibits recovery, or resolves the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. An issue is a genuine issue if reasonable persons could disagree on that point; on the other hand, if reasonable people could reach only one conclusion, the issue is not a “genuine” issue and summary judgment is appropriate. Id.

In support of its motion for summary judgment, Hercules provided the trial court with the Security Contract and Access Agreement between it and HUB, the Sublease Agreement between it and Doerle Properties, and a copy of the insurance contract between HUB and First Mercury. In support of their motion for partial summary judgment and in opposition to Hercules’ motion for summary judgment, HUB and First Mercury provided the trial court with the same Security Contract and Access Agreement.

Louisiana Civil Code Article 2045 provides that “[/Interpretation of a contract is the determination of the common intent of the parties.” Additionally, “[w]hen the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” La. Civ.Code art.2046. “A person who signs a written contract is presumed to know its contents and cannot avoid its obligations by contending that he did not read it, that he did not understand it, or that the other party failed to explain its meaning.” Carter Logging, L.L.C. v. Flynn, 44,188, p. 4 (La.App. 2 Cir. 4/8/09), 7 So.3d 195, 198.

| fiIt has long been held that “[a] contract of indemnity whereby the indem-nitee is indemnified against the consequences of his own negligence is strictly construed, and such a contract will not be construed to indemnify an indemnitee against losses resulting to him through his own negligent act, unless such an intention was expressed in unequivocal terms.” Polozola v. Garlock, Inc., 343 So.2d 1000, 1003 (La.1977). Additionally,

In cases involving similar claims for indemnity for one contracting party’s contractual indemnification obligations to a third party, the jurisprudence consistently holds that such a claim is viable only when the applicable contractual language is clear and express and the alleged indemnitor has notice of the obligation and gives his express consent thereto.

Marshall v. Southwest Louisiana Elec. Membership Corp., 05-328, pp. 3-4 (La.App. 3 Cir. 11/2/05), 915 So.2d 1026, 1029.

With regard to HUB’s obligations to Hercules, the Access Agreement stated the following:

In consideration of being allowed access to certain premises and/or vessels and for other good and valuable consideration, the undersigned entity (hereinafter referred to as “Company”) agrees with Hercules Liftboat Company, L.L.C., including any parent, subsidiary, or affiliated company thereof (hereinafter Hercules Liftboat Company, L.L.C., its parent, subsidiary and affiliated companies are referred to collectively as “Hercules”) as follows: To the fullest extent permitted by law, Company agrees to release, defend, indemnity and hold harmless Hercules, its employees, managers, officers and directors, and vessels owned, operated and/or charged by Hercules (hereinafter collectively referred to as the “Protected Parties”) and their respective insurers, from and against all claims, lawsuits, loss, damage, costs and expenses (including, without limitation, contractual defense and indemnity claims and defense costs and attorney fees) of any kind or character for illness, injury or death of employees, servants, agents or representatives of Company, arising out of or attributable to, directly or indirectly, the presence by any such persons or parties on Hercules’ owned or operated vessels or premises and/or any work, services, equipment or supplies being furnished to or performed for Hercules, whenever and wherever located, EVEN IF SAID CLAIMS, DEMANDS, SUITS AND/OR CAUSES OF ACTION ALLEGEDLY OR ACTUALLY ARISE SOLELY OR PARTIALLY FROM NEGLIGENCE (INCLUDING SOLE, JOINT, CONCURRENT, ACTIVE OR PASSIVE), STRICT LIABILITY, PRODUCTS PLIABILITY, UNSEAWORTHINESS OF ANY VESSEL AND/OR UNAIRWORTHINESS OF ANY AIRCRAFT ATTRIBUTABLE TO THE PROTECTED PARTIES.

Similar language followed establishing reciprocal indemnity obligations on Hercules in the event that a Hercules employee, agent, servant, or representative instituted a claim against HUB under similar circumstances.

The indemnity agreement found in the Access Agreement provides unequivocally that HUB “agrees to release, defend, indemnity and hold harmless Hercules ... from and against all claims, lawsuits, loss, damage, costs and expenses ... of any kind or character for ... injury of [HUB’S employees ... arising out of ... the presence of [HUB’s employee] on Hercules’ ... premises ... EVEN IF SAID CLAIMS ... ARISE SOLELY OR PARTIALLY FROM NEGLIGENCE ... ATTRIBUTABLE TO [Hercules].” The obligation of HUB and First Mercury with respect to Hercules is not in dispute.

What is in dispute is the effect of the language in the indemnity clause which expands the obligation of HUB and First Mercury to “include contractual defense and indemnity claims.” It is this language that Hercules relies on to assert that HUB and First Mercury owes it indemnification for anything it might owe Doerle Properties under the indemnification language found in the Sublease Agreement. Paragraph 14.1 of that document reads as follows:

Indemnification. Subtenant will indemnify, defend and hold harmless each of Sublessor and B-Hand their respective agents and employees from and against, any and all demands, claims, causes of action, fines, penalties, damages (including consequential damages), losses, liabilities, judgments, and expenses (including, without limitation, attorney fees and court costs) incurred in connection with or arising from: (a) the use or occupancy of the Leased Premises by Subtenant or any person claiming under Subtenant or the condition, upkeep or maintenance of the Leased Premises; (b) any activity, work, or thing done, or permitted or suffered by Subtenant in or about the ^Leased Premises; (c) any acts, omissions or negligence of Subtenant or any person claiming under Subtenant, or the contractors, agents, employees, invitees, or visitors of Subtenant or any such person; (d) any breach, violation, or nonperformance by Subtenant or any person claiming under Subtenant or the employees, agents, contractors, invitees, or visitors of Subtenant or any such person of any term, covenant, or provision of this Lease or any law, ordinance, or governmental requirements of any kind; (e) (except for loss of use of all or any portion of the Leased Premises or Subtenant’s property located within the Leased Premises which is proximately caused by or results proximately from the gross negligence of Sublessor) any injury or damage to the personal, property, or business of Subtenant, its employees, agents, contractors, invitees, visitors, or any other person entering upon the Leased Premises under the express or implied invitation of Subtenant or (f) demands made or suits filed by Sublessor or B-H to enforce the foregoing indemnification provisions. If any action or proceeding is brought against Sublessor or B-H, their employees, officers, owners or agents by reason of any such claim, Subtenant, upon notice from Sublessor, will defend the claim at Subtenant’s expense with counsel satisfactory to Sublessor or B-H, as the case may be.

Clearly, this language established contractual defense and indemnity obligations on Hercules with respect to Doerle Properties and its use of the property identified in the Sublease Agreement. It is equally clear that HUB agreed to indemnify Hercules for some “contractual defense and indemnity claims” arising from its contractual relationship with Hercules. Insofar as the trial court reached this conclusion as well, we find no error in that determination.

However, we find that the trial court erred in finding that the indemnification agreement between Hercules and Doerle Properties extended to cover the contractual defense and indemnity claim made by Doerle Food Services against Hercules. First, the Sublease Agreement is between Hercules and Doerle Properties, not between Hercules and Doerle Food Services. The indemnification clause in the Sublease Agreement provides that Hercules “will indemnify, defend and hold harmless ... Sublessor ... [its] respective agents and employees.... ” While Doerle Food Services may be an agent of Doerle Properties, nothing in the |9record supports that contention. Given the fact that there exists no direct indemnification relationship between Hercules and Doerle Food Services, absent the establishment of Doerle Food Services as the agent of Doerle Properties, HUB does not owe indemnification to Hercules. Crucially, this relationship is a genuine issue of material fact which precludes the grant of a summary judgment.

Furthermore, even assuming that a principal/agent relationship exists such that Doerle Food Services is entitled to indemnification pursuant to the terms of the Sublease Agreement, certain particulars of that indemnification also constitute genuine issues of material fact. Mr. Tra-han’s claim for damages arose when the guard shack in which he was working separated from its footings. His claim against Doerle Food Services was based on negligence related to the failure of that defendant to safely secure the structure. While the indemnification language of the Sublease Agreement clearly places some indemnification obligations on Hercules, we do not find that the indemnification language found in the Sublease Agreement unequivocally states that Hercules is bound to indemnify Doerle Food Services for its own negligence. Polozola, 343 So.2d 1000. If Hercules is not bound to indemnify Doerle Food Services for its own negligence, HUB and First Mercury have no similar obligation to indemnify Hercules for the expenses of Doerle Food Services.

DISPOSITION

We reverse that portion of the trial court’s grant of summary judgment in favor of Hercules Liftboat Company, LLC wherein the trial court found that the indemnification language of the August 8, 2006 Access Agreement between Hercules Liftboat Company, LLC and HUB Enterprises, Inc. extends to cover the contractual defense and indemnification claim made by Doerle Food Services, ImLLC against Hercules Liftboat Company, LLC pursuant to the October 7, 2005 Sublease Agreement; and we remand the matter to the trial court for further proceedings consistent with this opinion. We assess all costs of this appeal to Hercules Liftboat Company, LLC.

REVERSED IN PART, AND REMANDED.

      . The contract bears the date of August 8, 2006, although the document itself was executed by the representative of HUB on August 18, 2006, and by the representative of Hercules on August 24, 2006.

      . The Sublease Agreement states that Doerle Properties possessed the property pursuant to a Lease Purchase Agreement entered into on August 26, 2005, wherein B-H Operations of Broussard, L.L.C. was identified as the owner/landlord.

      . The parties agreed that the insurance coverage issue would not be addressed in the written judgment to be rendered by the trial court, and that the issue would be left for another day.

      . The language of the Access Agreement makes each employer responsible to its injured worker for all workers' compensation benefits as well as full tort liability.