author: ROBERT M. MURPHY, Judge.

text:
    WASTE MANAGEMENT OF LOUISIANA, L.L.C. v. CONSOLIDATED GARBAGE DISTRICT NO. 1 OF the PARISH OF JEFFERSON and the Parish of Jefferson through the Jefferson Parish Council.
    No. 12-CA-444.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2013.

      Miles P. Clements, Benjamin M. Casto-riano, Patrick A. Talley, Jr., Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant.
    Thomas P. Anzelmo, Lou Anne Gwart-ney, Kevin P. Kress, Attorneys at Law, Metairie, LA, for Defendant/Appellee.
    Kelly M. Brian, Guice A. Giambrone, III, Attorneys at Law, Metairie, LA, for Intervenor/Appellee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and ROBERT M. MURPHY.
   ROBERT M. MURPHY, Judge.

laThis matter concerns the Jefferson Parish Council’s method of selecting a contractor to operate and to perform some construction at the Jefferson Parish landfill. Waste Management of Louisiana, L.L.C. (“Waste Management”) appeals the denial of its request for a declaratory judgment declaring the invalidity of Resolution No. 117202 and of its motion for preliminary injunction seeking to estop the Parish contract with IESI La. Corporation, now Progressive Waste Solutions of LA, Inc. (“IESI”). For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On February 25, 2011, pursuant to Ordinance No. 21587, Jefferson Parish issued request for proposal no. 0227 (“RFP 0227”) seeking qualified proposals for construction and operation of Phase IV of the Jefferson Parish landfill. Phase III was scheduled for completion by the incumbent contractor, Waste Management, in early 2013. Three entities submitted proposals: Waste Management; IESI LA Corporation, now Progressive Waste Solutions of LA, Inc. (“IESI”); and Browning-Ferris Industries (“BFI”). The Jefferson Parish evaluation committee scored the proposals as follows:

UWaste Management: 960.65 points
ikSI: 940.15 points
BFI: 925.75

IESI had the most technical points, and BFI, the most financial points.

On June 24, 2011, after advertisement for RFP 0227 but before the Council vote, a statutory amendment to the public bid law took effect: the statutory definition of “public work” was amended to include “operation.” La. R.S. 38:2211(A)(12).

On August 10, 2011 during its regular meeting, the Jefferson Parish Council considered the three proposals and heard two complaints alleging Waste Management’s deficient performance in controlling odors. The Council unanimously passed Resolution No. 117202 selecting IESI’s proposal and directed the Parish Attorney to begin negotiations with IESI to operate the landfill after Waste Management’s contract terminated. A non-exclusive contract with IESI has since been executed.

On February 13, 2012, Waste Management filed a petition for a declaratory judgment and alternatively for injunctive relief in the Twenty-Fourth Judicial District Court, requesting a declaratory judgment that the approval of IESI’s proposal was void ab initio for failure to comply with the Parish ordinance and the terms of RFP 0227, and ordering the Parish to negotiate a landfill contract with' Waste Management, or alternatively, seeking to enjoin the Parish from entering into a contract with IESI.

On February 17, 2012, IESI filed a motion for leave of court to file a petition for intervention to oppose Waste Management’s request for injunctive relief. The trial court granted leave to IESI to intervene on February 23, 2012. Waste Management’s motion for a new trial on the granting of leave to intervene was denied following the denial of its opposition to the intervention.

|fiOn March 2, 2012, the trial court held a hearing in these matters and gave oral reasons. On March 14, 2012 in a written judgment, it denied Waste Management’s motion for a preliminary injunction, denied its request for a declaratory judgment and assigned written reasons. The trial court found that La. R.S. 33:4169.1 governed the matter as it was more specific than the Louisiana public bid law, La. R.S. 38:2211 et seq.; that the amendment to the public bid law did not apply retroactively as it was substantive; that the Legislature did not expressly intend that it would apply retroactively; and that in denying injunc-tive relief, there was no violation of the RFP or ordinance.

On March 7, 2012, the Council unanimously approved the contract with IESI.

Waste Management appeals the denial of its request for a declaratory judgment and its motion for a preliminary injunction. ISSUES

Appellant Waste Management contends the district court erred in denying its request for a declaratory judgment declaring Resolution No. 117202, passed by the Jefferson Parish Council on August 10, 2011, void ab initio, due to its failure to comply with the public bid law, La. R.S. 38:2211 et seq. Alternatively, Waste Management contends that the trial court abused its discretion in denying Waste Management’s motion for a preliminary injunction to prohibit Jefferson Parish from entering into the contract with IESI due to violations of RFP 0227 and Ordinance No. 21587.

Appellant contends that the operation of the Parish landfill constituted a public work as of June 24, 2011, and that public works must be let in compliance with the public bid law. It contends that the Parish erred in using the RFP process after June 24, 2011, and further that the Council violated its own mandates of the RRFP and Parish ordinance. Waste Management also contends the RFP was violated by the Parish Attorney’s erroneous instruction to disregard price as a controlling factor, allowing the Council to place too much weight on one factor odor.

Appellant contends that La. R.S. 33:4169.1 is not applicable to this contract. It contends rather that La. R.S. 38:2211(A)(12) controls and calls for the public bid law to be followed. Appellant argues that this statute includes all contracts for trash disposal and landfill operation and that La. R.S. 38:2211(A)(12) supersedes La. R.S. 33:4169.1.

Waste Management further contends that the issue of retroactivity is not applicable as the language of La. R.S. 38:2212(A)(l)(a) creates a rigid two-step process: first advertising and then letting the contract. Appellant argues that the amendment to the public bid law went into effect after the advertising and before the letting, thus making the amendment controlling over the letting and negotiation of the landfill contract. Under Waste Management’s argument, the letting process would be controlled by the public bid law and require that the low bid be accepted. Appellee Jefferson Parish and intervenor IESI contend that the trial court was not required to follow the public bid law in awarding a non-exclusive municipal contract for trash collection and disposal. They contend the more specific statute, La. R.S. 33:4169.1, controls versus the recently amended definitional statute in Title 38 which substantively redefined public works in the public bid law to include “operation,” but did not include trash collection and disposal in that definition.

The Parish and IESI contend the trial court was correct in finding the Parish was not required to follow the public bid law in awarding a non-exclusive contract for garbage disposal as set out in RFP 0227. They aver that the construction |7element in a trash collection and disposal contract does not render it governed by the public bid law. They further contend the trial court did not err in denying Waste Management’s motion for a preliminary injunction as Jefferson Parish did not violate the terms of RFP 0227 and Ordinance No. 21587, and Waste Management failed to prove any potential irreparable harm.

Jefferson Parish contends that the Jefferson Parish Council did not violate Parish law in voting to negotiate with IESI pursuant to RFP 0227. It avers that the trial court correctly denied injunctive relief because Waste Management could adequately be compensated by monetary relief, if later found to be correct, and that there was no showing of irreparable harm and no violation of law. It contends that the trial court correctly denied injunctive relief where suspension of the contractual negotiations with IESI would threaten the Parish’s ability to promptly dispose of waste that is generated within the Parish during the course of any litigation.

The Parish and IESI contend that the trial court correctly denied Waste Management’s request for injunctive and declaratory relief, by finding that the RFP was not null and void, where Waste Management itself sought to take advantage of the RFP and be awarded the contract. Based on these contentions, the issues are:

1. Which law applies to the award of the landfill contract at issue, La. R.S. 38:2211(A)(12) the amended public bid law requiring the award to the lowest bidder, or La. R.S. 33:4169.1 pertaining to landfills as professional service contracts to be awarded under the RFP process to the contractor “most advantageous” to the Parish?
2. Which statute is more specific?
3. Did the contract award an exclusive franchise so as to require application of the public bid law under both statutes?
4. Did the construction element of the contract require application of the public bid law?
5. Is the retroactivity of the amendment to the public bid law an issue?
|s6. Is the amendment substantive and therefore not retroactive?
7. Did the Parish violate the RFP or the ordinance?
8. Was the denial of injunctive relief clearly erroneous? Did the trial court abuse its discretion in denying Waste Management’s motion for preliminary injunction?

STANDARD OF REVIEW

The issue of which law applies to the award of the instant contract requires interpretation as to the effect of an amendment of a statute and a determination of the applicable law to follow. These are questions of law requiring de novo appellate review. Red Stick Studio Dev’t, L.L.C. v. State of Louisiana, et al., 10-193, p. 9 (La.2011), 56 So.Sd 181, 187. The judgment of the trial court should remain undisturbed absent proof that its decision was legally incorrect. Metairie Country Club v. Louisiana Tax Comm’n, et al., OS-538, p. 6 (La.App. 5 Cir. 10/28/03), 860 So.2d 165,167.

The appellate court reviews the denial of a preliminary injunction under the manifest error standard. Ramsey’s Mfg. Jewelers, Inc. v. Ramsey, 05-307 (La.App. 5 Cir. 2/14/06), 924 So.2d 1045, 1057 (citing Mary Moe, L.L.C. v. Louisiana Board of Ethics, 03-2220, p. 9 (La.4/14/04), 875 So.2d 22, 29). Courts have great discretion in granting or denying a preliminary injunction. The trial court’s judgment shall not be disturbed “absent a clear abuse of discretion.” Novelaire Technologies, L.L.C. v. Harrison, 08-157, p. 5 (La. App. 5 Cir. 8/19/08), 994 So.2d 57, 60.

LAW AND DISCUSSION

The court must examine which law applies, the public bid law or the RFP law, in the context of a recent amendment to the public bid law. The amendment |9at issue became effective after the advertising for RFP 0227 and before the Council’s vote to award the contract. The public bid law provides in pertinent part:

All public works exceeding the contract limit as defined in this Section, including labor and materials, to be done by a public entity shall be advertised and let by contract to the lowest responsible bidder who had bid according to the contract, plans, and specifications as advertised, and no such public work shall be done except as provided in this Part.

La. R.S. 38:2212(A)(l)(a).

Before the amendment to La. R.S. 38:2211(A)(12), public work was defined as the “erection, construction, alteration, improvement, or repair of any public facility or immovable property owned, used, or leased by a public entity.” Id. The amendment to the definition of public work added “operation” to the previous definition. Acts 2011, No. 134 § 1. Significantly, the amendment did not add garbage and trash collection to the definition of public work.

La. R.S. 33:4169.1 permits a parish to enter into garbage collection and disposal contracts:

A. The governing authority of every parish or municipality shall have the following powers:
(1) To engage in the collection and disposal of garbage and trash within its jurisdiction in cooperation with, or to the exclusion of, other garbage and trash collectors.
(2) To grant permits, licenses, exclusive or nonexclusive franchises, or any combination thereof to garbage and trash collectors and disposers. Any exclusive franchise shall be granted only after advertising for bids, reception of bids, and awarding of the contract or contracts in accordance with the public bid laws of the state and other provisions of law.
(3) To enter into time contracts for the collection and transportation of garbage or trash for a term up to ten years, and for disposal of garbage or trash for a term of up to twenty-five years.
* * *
(5) To otherwise regulate the collection and disposal of garbage and trash.

In reconciling these two statutes, the Louisiana Supreme Court has held that “[pjursuant to general rules of statutory construction, ‘where two statutes deal with |10the same subject matter, they should be harmonized if possible; however, if there is a conflict, the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character.’ ” Filson v. Windsor Court Hotel, 04-2893, p. 4 (La.6/29/05), 907 So.2d 723, 726.

The trial court found that La. R.S. 33:4169.1 was more specific in governing waste disposal contracts. On our de novo review of the law, we find specific reference to landfills in La. R.S. 33:4169.1; whereas the public bid law, with or without the amendment to the definition of public work, has only general applicability and no such specificity. La. R.S. 33:4169.1 therefore controls as it is specifically on point. To rule otherwise would render La. R.S. 33:4169.1 meaningless.

The contract here is not an exclusive franchise and does not require application of the public bid law. If the Parish were to grant an exclusive franchise for such services, only then would it have been required to make the award under public bid law. Per La. R.S. 33:4169.1, the Parish had statutory authority to enter into contracts and grant exclusive or non-exclusive franchises with garbage and trash collectors. The RFP addendum no. three in this case added the following to Section 1.1.2: “[tjhis will be a non-exclusive contract between the Parish and the firm selected as the landfill operator.” For a non-exclusive franchise agreement, for collection and disposal of trash, such as the contract at issue, the Legislature did not require the application of the public bid law, applying La. R.S. 33:4169.1 instead.

The parties dispute the meaning of the Third Circuit’s holding in Waste Management of Central La. v. Beall, 03-1710 (La. App. 3 Cir. 8/04/04), 880 So.2d 923, ivrit denied, 04-2642 (La.1/14/05), 889 So.2d 269, in which the appellate court concluded that the trash contract at issue was not an exclusive franchise launder La. R.S. 33:4169.1 and reversed the trial court’s judgment finding that the public bid law applied. Waste Management cites language in that case that the public bid law did not apply since “operation” was not included in the definition of public work. Waste Management argues that since the post-Beall amendment, which added “operation,” applies to the facts here, the public bid law would now apply to the instant matter by implication. We find, however, that Beall is limited to its facts and appellant’s extrapolation is not persuasive.

In determining whether legislation is retroactive, Louisiana Civil Code article 6 provides that “[i]n the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretive laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.” La. R.S. 1:2 provides that “[n]o section of the Revised Statutes is retroactive unless it is expressly so stated.” We find the amendment to La. R.S. 38:2211(A)(12) to be substantive, and without any further legislative expression, the amendment must be applied prospectively only.

Waste Management also contends that retroactivity is not an issue and relies on the public bid law’s two-step process of selecting a contractor: advertising and then letting of the contract. It contends that the Council violated the public bid law in letting the contract to IE SI via the RFP process on August 10, 2011 after the effective date of the amendment to the public bid law on June 24, 2011. However, we find Waste Management’s argument to be misplaced as the amendment would only pose an issue if the public bid law controlled. But as it has already been demonstrated that La. R.S. 33:4169.1 controls, this non-exclusive contract did not require application of the public bid law at any stage of the process. For the sake of argument, even if the amendment applied retroactively, this general amendment adding “operation” to La. | l2R.S. 38:2211(A)(12) would still not control over La. R.S. 33:4169.1, a statute on point regarding municipalities contracting for garbage collection.

The fact that this service contract, relating primarily to disposal of garbage, includes a construction component is of no moment. It remains a service contract not governed by the public bid law. See Wallace Stevens, Inc. v. Lafourche Parish Hasp. District No. 3, 308 So.2d 299 (La. App. 1 Cir.1975), ajfd, 323 So.2d 794 (La. 1975). The Parish also correctly relied on Attorney General Opinions 11-059, 09-087 and 97-239 in support of its position that contracts for collection, transportation and disposal of solid waste, unless exclusive franchises, may be negotiated by the RFP process and are not subject to the public bid law.

The RFP process began in this matter with Jefferson Parish Ordinance No. 21587. Section 2-895(2) requires the RFP to set forth evaluation criteria. The evaluation committee’s report is not binding on the Council; the broad statutory standard under the RFP process is for the Parish to select the “most advantageous” proposal. La. R.S. 38:2237(A)(8). This contrasts markedly to the public bid law requirement that contracts for public work “shall be advertised and let by contract to the lowest responsible bidder.” La. R.S. 38:2212(A)(l)(a).

Our upholding the RFP process, instead of the public bid process, negates Waste Management’s arguments regarding any advice council members may have received from the Parish Attorney to disregard price. We find that the Council had the broad and ultimate authority in awarding the contract “most advantageous” to the Parish, including hearing from the public regarding odors. In exercising its discretion in considering and weighing certain factors, the Parish did not violate the RFP and the ordinance. We further find that the legislative decision-making process may not be considered under the Privileges and Immunities Clause of the ^Louisiana Constitution. The thought processes of local legislators are off-limits to litigation and the courts. La. Const, of 1974, art. Ill, § 8.

Jefferson Parish ordinances set forth criteria and objectives for the Council to proceed in the RFP process here. Ordinance No. 31587, Section 2-895(2) provides that “price need not be the determining criterion for the award.” Section 2-895(6) provides in part:

the [RFP] objectives are to ensure that eligible contractors receive impartial and equitable consideration and that the contractor selected is most likely to perform in a manner which is most advantageous to the Parish of Jefferson, price and other factors considered.

Id. (Emphasis added). That same subsection provides that an “[a]ward of the contract may be made without discussion after proposals are received and evaluated.” Section 2-895(6). There is no basis to argue that price, although a relevant factor in the RFP, is the controlling factor.

We further find that the trial court did not abuse its discretion in denying Waste Management’s request for injunc-tive relief. First, there was no violation of the RFP or ordinance, as discussed above. Secondly, injunctive relief was correctly denied because monetary damages are available. See Mouton v. Rapides Parish Police Jury, 05-721 (La.App. 3 Cir. 4/05/06), 927 So.2d 1195, 1198, unit denied, 06-1061 (La.6/23/06), 930 So.2d 986. Appellant is unable to show “irreparable injury” that cannot be adequately compensated by monetary damages. Id.

CONCLUSIONS

Upon our de novo review of the trial court’s denial of declaratory relief based on interpretation of law, we find that the public bid law does not apply to the contract at issue, and further that the trial court correctly found that the amendment to the public bid law is substantive and does not apply retroactively. In addition, 114the Parish did not violate the RFP and ordinance, and the Council’s decision-making process may not be considered under the doctrine of legislative privilege. In-junctive relief was correctly denied, and to deny it was not an abuse of discretion or clearly erroneous because there was no violation of law and monetary damages are available if appropriate. Accordingly, the trial court’s denial of Waste Management’s request for a declaratory judgment and for injunctive relief is affirmed.

AFFIRMED


source: Caselaw Access Project

author: STEPHEN J. WINDHORST, Judge. LILJEBERG, J.,

license: Public Domain

text:
    Rachel BABIN, Wife of/and Royal Babin v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Matthew N. DeSalvo.
    No. 12-CA-447.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2013.

      Thomas A. Gennusa, II, Joseph S. Pia-cun, Reid S. Uzee, Leonard J. Cline, Attorneys at Law, Metairie, LA, for Plaintiffs/Appellees, Rachel Babin, Wife of/and Royal Babin.
    Joseph M. Messina, Charles R. Rum-bley, Attorneys at Law, New Orleans, LA, for Defendants/Appellants, Matthew N. DeSalvo and State Farm Mutual Automobile Insurance Company.
    James R. Carter, Attorney at Law, New Orleans, LA, for Defendant/Appellant, State Farm Mutual Automobile Insurance Company, in its U/M Capacity.
    Panel composed of Judges ROBERT M. MURPHY, STEPHEN J. WINDHORST and HANS J. LILJEBERG.
   STEPHEN J. WINDHORST, Judge.

| ^Plaintiffs, Rachel Babin wife of/and Royal Babin, filed suit for damages after their car was rear-ended by a car driven by defendant Matthew DeSalvo. Defendant State Farm was named in two capacities; as the automobile liability insurer of DeSalvo, and also as the uninsured/under-insured motorist liability insurer for plaintiffs.

Prior to trial, Mrs. Babin stipulated that her damages were $50,000.00 or less. Trial was bifurcated, with the issue of Mrs. Babin’s damages presented to the trial judge and the issue of Mr. Babin’s damages presented to the jury. At the conclusion of trial, the jury found that Mr. Babin suffered no damages as a result of the automobile accident. In accordance with the jury verdict, the trial judge rendered a verdict dismissing Mr. Babin’s suit with prejudice. The trial judge rendered a second judgment in favor of Mrs. Babin for general damages of $50,000.00 and medical expenses of $11,106.06.

[/Thereafter, Mr. Babin filed a Motion for Judgment Notwithstanding the Verdict (JNOV) and/or Motion for New Trial. The trial court granted the motion, but failed to specify relief. Defendants (herein referred to as “State Farm”) appealed from both the judgment in favor of Mrs. Babin and the judgment granting Mr. Babin’s motion for JNOV. The panel dismissed the appeal, finding that all matters raised were premature, and remanded the case back to the trial court. Babin v. State Farm, 11-192 (La.App. 5 Cir. 9/27/11), 76 So.3d 100.

After a hearing to address the remand, the trial court granted a JNOV and rendered judgment in favor of Mr. Babin, awarding damages for pain, suffering and emotional distress in the amount of $120,000.00 and medical expenses totaling $7,934.87. The trial court rendered a second judgment which reduced the damages awarded to Mrs. Babin to the stipulated maximum of $50,000.00.

Defendants now appeal from these judgments of the trial court. In the appeal, they allege that the trial court erred in finding that Mrs. Babin sustained injuries as a result of the accident. They further allege that the trial court erred in granting a JNOV in favor of Mr. Babin. Alternatively they argue that the award in favor of Mr. Babin is excessive. Plaintiffs answered the appeal, and alleged that the general damages and medical expenses awarded to Mr. Babin were inadequate. For the reasons that follow, we affirm the judgment of the trial court.

THE ACCIDENT

The accident occurred on January 7, 2006. At trial, Mr. DeSalvo testified that he was in a long line of cars that were slowing down. He was traveling approximately 5-10 mph when he became distracted and looked to his right. When |she looked back, he saw the Babin’s car in front of him. He attempted to stop, and he “bumped” the car. Mr. DeSalvo stated that the car did not move after he bumped it. Mr. DeSalvo stated that there was no visible damage to either car, and that the Babin’s indicated that they were fine after the accident. His car, which had a missing grill, sustained no damage.

Mrs. Babin testified that she and her husband, Mr. Babin, were stopped in their car, along with their daughter who was in the back seat. Mrs. Babin heard screeching brakes and they were hit from behind. At the time of impact, she was jolted forward, slight to moderate. Immediately after the accident, she turned to check on her daughter. She stayed in the car and called the police, while her husband exited the car. She testified that there was damage to the car’s bumper and that the damage was visible. That evening, she started feeling pain that became progressively worse.

Mr. Babin testified that he was driving the car at the time of the accident. The car was stopped and he had his foot on the brake. He heard tires screeching and looked in the mirror. Immediately there was an impact. He believed that the car was traveling 15-20 miles per hour at the time of impact. He kept his foot on the brake, but the car still went forward. His body jolted forward, then back. He immediately twisted in his seat to check on his daughter, and then exited the car. He stated that his back bumper had marks on it, and there was debris on the street. Later that evening, he started feeling head and body aches.

Trooper Joanne Rozigas investigated the accident a prepared a police report. Her report stated that everyone involved reported no injuries. She asked for a general speed of travel, and recorded 10 miles per hour. She did not see any damage to either car. She cited Mr. DeSalvo for careless operation.

| fiState Farm paid $364.00 for damage to the car. The Babin’s did not have the car repaired.

MEDICALS — RACHEL BABIN

Mrs. Babin first went to Dr. Stewart Altman, a general surgeon, on January 10, 2006, with complaints of pain to her neck and back, and headaches. She related the events of the accident and also described a prior accident three years earlier in which she injured her wrist and back. She had been released from treatment from that earlier accident and stated that she had fully recovered. After a physical examination, Dr. Altman diagnosed cephalgia, cervical spine strain, lumbar spine strain and trapezius muscle sprain, and he stated that all symptoms and findings were causally related to the accident. Conservative treatment of medications, and home and office therapy, was prescribed.

Conservative treatment continued to be recommended at Mrs. Babin’s next two office visits. On her April 3, 2006 visit, Mrs. Babin reported that her headaches, as well as her neck and mid back, were within normal limits. Her lower back had not improved. Medications were prescribed, however physical therapy was placed on hold. On her April 26, 2006 visit, Mrs. Babin reported that her headaches had increased, and that her lower back had not improved. On June 2, 2006, Mrs. Babin stated that her headaches were again within normal limits; however her lower back remained the same with no improvement.

Mrs. Babin returned to Dr. Altman on June 23, 2006, at which time she stated that her back was 80% to 90% better. At this visit, Dr. Altman found that Mrs. Ba-bin had significantly resolved her sprains, and she was discharged from treatment.

|70n October 17, 2006, Mrs. Babin returned to Dr. Altman complaining that her lower back had gotten worse. She was examined by Dr. Altman’s associate, and was discharged to the care of an orthopedist.

On November 7, 2006, Mrs. Babin started treatment with Dr. Kenneth Adatto, an orthopedist. At that time, she complained of constant, moderate to severe lower lumbar pain, which was not affected by lying down or by lifting. Dr. Adatto started a treatment plan of medication, home exercise, and periodic review and evaluation, and he requested that an MRI be performed. In December, an MRI was conducted with normal results.

Mrs. Babin returned to Dr. Adatto on June 19, 2007. On examination of the lumbar spine, Dr. Adatto noted limited motion with mild spasm present at both rest and stress. Dr. Adatto further noted chronic pain. In July of 2007, a CT scan of Mrs. Babin’s spine was performed. The scan revealed degenerative changes (mild spondylosis), but no evidence of fracture or dislocation. On July 24, 2007, Mrs. Babin underwent a muscle injection. She received a second injection on July 30, 2007. The doctor’s notes indicate that Mrs. Ba-bin could continue her regular work. She was assessed with a permanent anatomical impairment to the lumbar spine of 10-15%. Restrictions imposed were avoiding repetitive stooping or bending and repetitive lifting of objects over 10-20 lbs., and to avoid prolonged sitting or standing in the same position for 45 minutes, plus or minus 15 minutes.

On August 4, 2007, an EMG was conducted. The results indicated mild radicu-lopathies at L5, SI, right side only. On August 16, 2007, plaintiff again was injected. The doctor’s notes indicated continued complaints of thoracic back pain. On October 9, 2007, Mrs. Babin was injected in paraspinous muscles on both the left and the right side and the same on January 10, 2008, April 10, 2008 and June 5, 2008. An office visit of July 31, 2008, had same results, no injections.

| ¡^Thereafter until trial, Mrs. Babin returned to Dr. Adatto’s office approximately every two to three months for injections. Treatment was ongoing at the time of trial. At the time of trial, Dr. Adatto’s diagnosis and restrictions were unchanged.

By letter dated February 25, 2010, Dr. Adatto stated that he viewed a video provided to him and he found that the movements made by Mrs. Babin were within the restrictions he imposed. This video tape was played at the trial of this matter.

Mrs. Babin testified at trial that she had been in one prior accident in 2002, however her symptoms resolved after one doctor’s visit. Rachel further testified that she was involved in three accidents subsequent to the one at issue, and that two of them temporarily aggravated her symptoms; however her treatment plan did not change. Mrs. Babin admitted that she did not tell her general physician of her accident or back injury, explaining that he was not treating her for that condition.

Mrs. Babin was also examined one time by Dr. Robert Steiner, an orthopedist, on request of defendants. He stated in his opinion her injuries were resolved at the time of trial.

MEDICALS — ROYAL BABIN

Mr. Babin first sought treatment with Dr. Altman on January 10, 2006, complaining of pain to his neck and back, and headaches. Dr. Altman diagnosed cervical spine strain, trapezius muscle sprain, lumber spine strain. He.prescribed conservative treatment of medications and therapy. Dr. Altman opined that Mr. Babin’s injuries were causally related to the accident. Mr. Babin returned to Dr. Altman’s office on January 24, 2006, at which time he reported that his neck felt better, but his mid and lower back had not improved. Conservative treatment was continued.

19An MRI was performed on May 16, 2006, which showed a herniated disc at L4-L5.

Mr. Babin began treatment with Dr. Kenneth Adatto, an orthopedist, on June 20, 2006. After evaluation, Dr. Adatto diagnosed a displacement of the lumbar in-tervertebral disc and thoracic sprain and strain. Dr. Adatto recommended therapy, and noted that surgical treatment might become an option in the future. Dr. Adat-to assessed a permanent anatomical impairment of 10-15% of the lumbar spine. Limitations imposed were avoidance of repetitive stooping, or bending and repetitive lifting of objects over 10-20 pounds as well as prolonged sitting or standing in the same position for 45 minutes, without moving.

Mr. Babin was seen by Dr. Adatto approximately every three months, at which time he was given spinal injections. At each visit, Mr. Babin was deemed stable and his prognosis was fair. Dr. Adatto noted on each visit that Babin was a chronic pain patient.

On May 1, 2007, Mr. Babin returned to Dr. Adatto’s office for an injection. At that visit, the possibility of surgery was discussed. At his July 31, 2007 visit, Mr. Babin indicated that he wanted to wait before having surgery. Mr. Babin testified that he and Dr. Adatto discussed the possibility of surgery. However, he decided against it because of his youth (34 at the time of trial) and the lengthy recovery period which would affect his ability to work.

On February 25, 2010, Dr. Adatto wrote a letter in which he stated that he reviewed a video tape, and that the activities shown, namely sitting in a garage with his father-in-law working on a motor and putting a 22 pound case of water in the trunk of a car fit within the guidelines of his restrictions.

Dr. Steiner conducted a one-time examination of Mr. Babin on request of the defendants. He noted that testing showed a degenerative disc at L4-5, which [ 10would result in a dermatone (pain pattern) at the top of the foot. However, Mr. Babin complained of pain in the leg, not the foot. At trial, Dr. Steiner admitted that in his prior deposition, he related Mr. Babin’s symptoms, but not necessarily the condition, to the accident. However, by the time of trial he had changed his opinion, and now believed that Mr. Babin suffered no injury, because he did not think the impact between the vehicles was great enough to cause the injury.

Mr. Babin testified that he did not have any back injury prior to the accident in question. He was involved in a motorcycle accident in 1996 or 1997 which resulted in injury to his left knee and elbow (requiring skin graft), but he did not suffer a back injury in that accident. He was also involved in a water skiing accident 3 months later in which he broke his right elbow. Mr. Babin was involved in a subsequent accident in 2009, which resulted in shoulder pain for one week.

Mr. Babin testified that, at the time of trial, he was still in pain on a varying basis. Some days his pain would be 8 of 10, and others 3 or 4 of ten. On some days, he would have no pain at all. He stated that because of his back injury, he could no longer put his daughter on his shoulders, or participate in sports with his friends and fishing in the Gulf. He further stated that he was always thinking about how to move so as to not aggravate his back. Mr. Babin admitted that he did not tell his general physician of his accident or injury because that physician was not treating him for that condition. DISCUSSION

Defendant, State Farm, as the insurer of the defendant driver, filed an appeal in which it alleges that the trial court erred in awarding any damages to Mrs. Babin; that the trial court erred in granting a JNOV in favor of Mr. Babin; or if the trial court did not err in granting the JNOV, then the award of damages was excessive.

InState Farm, as the uninsured/underin-sured motorist insurance carrier of the Babins, filed a second appeal in which it alleges that the trial court erred in granting the JNOV in favor of Mr. Babin; or if the granting of the JNOV was proper, then the trial court awarded excessive damages; and that the trial court erred in awarding amounts in excess of State Farm’s stipulated policy limits.

Mr. Babin filed an answer to the appeal, in which he alleges that the medical expenses awarded of $7,934.00 were insufficient because the parties stipulated that medical expenses of $9,334.00 were incurred; and that the general damage award of $120,000 was inadequate and should be increased to $175,000.

Under the manifest error standard, a determination of fact is entitled to great deference on review. McGlothlin v. Christus St. Patrick Hosp., 2010-2775 (La.7/1/11), 65 So.3d 1218,1230.

A court of appeal may not set aside a trial court’s findings of fact in the absence of manifest error or unless they are clearly wrong. Under the manifest error standard, in order to reverse a trial court’s determination of a fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Bonin v. Ferrellgas, 03-3024, p. 6-7 (La.7/2/04), 877 So.2d 89, 94-95; Sto-bart v. State through Dept, of Transp. and Development, 617 So.2d 880, 882 (La.1993). Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Stobart, Id.

Allerton v. Broussard, 10-2071 (La.12/10/10), 50 So.3d 145, 145, reconsideration denied, 10-2071 (La.1/28/11), 56 So.3d 974.

In alleging that the trial court erred in granting judgment in favor of Ms. Babin, State Farm points to the speed of the accident, and what they consider inconsistencies in Mrs. Babin’s testimony, to allege the trial court’s finding that Mrs. Babin was injured and was not reasonable. However, the trial court heard the evidence presented by both the plaintiffs and State Farm. Both treating physicians 112testified to Ms. Babin s injuries, and both found that her injuries were causally related to the accident.

State Farm next alleges that the trial court erred in granting a JNOV in favor of Mr. Babin.

A motion for JNOV may be granted on the issue of liability or on the issue of damages or on both issues. La. C.C.P. art. 1811(F). In ruling on a motion for a judgment notwithstanding the verdict (JNOV), the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party; this rigorous standard is based upon the principle that when there is a jury, the jury is the trier of fact. In re Gramercy Plant Explosion at Kaiser, 04-1151 (La.App. 5 Cir. 3/28/06), 927 So.2d 492, 499, writ denied, 08-0481 (La.5/2/08), 982 So.2d 763, and 08-0481 (La.6/20/08), 983 So.2d 1263.

[A] JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. The motion should be denied if there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. In making this determination, the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party.
In reviewing a JNOV, an appellate court must first determine whether the district judge erred in granting the JNOV by using the above-mentioned criteria in the same way as the district judge in deciding whether to grant the motion. Thus, the appellate court must determine whether the “facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict.” If the appellate court determines that reasonable persons might reach a different conclusion, then the district judge erred in granting the motion and the jury verdict should be reinstated. [Citations omitted.]

Trunk v. Medical Center of Louisiana at New Orleans, 04-0181, p. 4 (La.10/19/04), 885 So.2d 584, 537, citing Joseph v. Broussard Rice Mill, Inc., 00-0628, pp. 4-5 (La.10/30/00), 772 So.2d 94, 99; see also VaSalle v. Wal-Mart Stores, Inc., 01-0462, p. 11 (La.11/28/01), 801 So.2d 331, 338-39.

State Farm alleges that the jury verdict was correct and that the trial court erred in granting the JNOV. It again points to inconsistencies in the testimony and the speed of the vehicle at the time of the accident, as well as the report of their examining physician. It also argues that the jury didn’t apply the Housley presumption, and the trial court should not have either.

In a personal injury suit, the plaintiff bears the burden of proving a causal relationship between the accident and the complained-of injuries. Stoll v. Allstate Ins. Co., 11-1006 (La.App. 5 Cir. 5/8/12), 95 So.3d 1089, 1095. The test for determining the causal relationship between the accident and subsequent injuries is “whether the plaintiff proved, through medical testimony, that it was more probable than not that the subsequent injuries were caused by the trauma suffered in the accident.” Stoll, supra at 1095, citing Powell v. Chabanais Concrete Pumping, Inc., 11-408 (La.App. 5 Cir. 12/28/11), 82 So.3d 548, 558.

The' Housley presumption, set forth in Housley v. Cerise, 579 So.2d 973 (La.1991), is a legal presumption that “a medical condition producing disability is presumed to have resulted from the accident if the injured person was in good health prior to the accident, but shortly after the accident, the disabling condition manifested itself.” Stoll, supra at page 1095; Powell, supra at page 558.

In this case, the trial court could have found that the evidence pointed so strongly in favor of a finding that the accident caused Mr. Babin’s injuries that reasonable persons could not have arrived at a contrary verdict. The evidence showed that Mr. Babin suffered no back injury before the accident, however after 114the accident he suffered pain which never resolved, and ultimately he was assessed with a 10-15% permanent anatomical disability. Both of Mr. Babin’s treating physicians found that his injuries were causally related to the accident. We are aware that “the diagnosis and opinions of a plaintiffs treating physician and specialists to whom referred by the treating physician are entitled to more weight than that of those doctors examining the plaintiff for consultation for litigation purposes only.” Prestenback v. Schwegmann Giant Supermarkets, Inc., 96-0793 (La.App. 5 Cir. 1/28/97), 688 So.2d 149, 156, writ denied, 97-0977 (La.5/30/97), 694 So.2d 249. While the doctor who examined Mr. Babin one time on behalf of State Farm stated that he did not find Mr. Babin’s condition causally related to the accident, he also admitted that in his prior deposition he had related the injury to the accident and he only changed his mind because he was told that there was no damage to the Babin vehicle. Given the undisputed evidence that Mr. Babin had no back pain prior to the accident and assessed with a permanent anatomical disability after the accident, the Housley presumption was not rebutted in this case. We find no error in the trial court’s decision to grant a JNOV in this case.

We also note that the trial court did not rule on State Farm’s alternative motion for new trial as required by La. C.C.P. art. 1811. We decline to remand this particular matter to the district court because such an action would be contrary to the concept of judicial economy and the interest of the parties in having this lawsuit concluded. Trunk, supra. Because we affirm the trial court’s ruling granting a JNOV, a new trial is not warranted in this case.

State Farm next argues that, in the event that we affirm the trial court’s granting of a JNOV, the amount of damages awarded by the trial court is excessive. In his answer to the appeal, Mr. Babin alleges that the trial court erred in awarding inadequate damages.

11sIt is well-settled that vast discretion is accorded to the trier of fact in fixing general damage awards. La. C.C. art. 2324.1; Howard v. Union Carbide Carp., 2009-2750 (La.10/19/10), 50 So.3d 1251. This vast discretion is such that an appellate court should rarely disturb an award of general damages. Thus, the role of the appellate court in reviewing general damage awards is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La. 1993), cert, denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). An appellate court may not overturn an award for damages unless it is so out of proportion to the injury complained of that it shocks the conscience. Harrington v. Wilson, 08-544 (La.App. 5 Cir. 1/13/09), 8 So.3d 30, 40.

After review, we find no abuse of discretion in the trial court’s general damage award of $120,000 for a back injury which had not resolved in the four years between the accident and trial, and for which Mr. Babin had been assigned a permanent impairment of 10-15% of the body as a whole. In addition, Mr. Babin had already undergone several injections for pain, with the possibility of more injections and future surgery. Accordingly we find no merit to State Farm’s allegation that the award was excessive. We likewise find merit to Mr. Babin’s assertion that the award for general damages was inadequate.

Considering Mr. Babin’s assertion that the trial court erred in its award for medical expenses, at trial the parties stipulated that Mr. Babin’s medical expenses totaled $9,337.00. Accordingly, we find that the trial court erred in its award of $7,934.87 for medical expenses, and we amend the trial court judgment to award to Mr. Babin $129,337.00, reflecting a general damage award of $120,000.00 and a special award for medical expenses of $9,337.00.

11fiFinally, State Farm alleges as error that the trial court does not specify as to its capacity in the judgment against it. State Farm argues that its’ liability policy for the tortfeasor is $100,000 and it’s UM coverage is $10,000, and therefore the trial court erred in awarding amounts in excess of $110,000.00 against it. Pursuant to a contract of automobile liability insurance, the insurer agrees to indemnify the tortfeasor for his acts of negligence, up to the limits of the policy. Pursuant to the UM provisions, an insurer agrees to pay the victim for uncompensated damages, up to the limits of the policy. We know of no jurisprudence which requires the trial court to limit its award of damages to the limits of an insurance policy. Likewise, we know of no statute or jurisprudence which would require an insurer to pay the damage award above the limits of its applicable policy in the ordinary course of proceedings. This issue is without merit.

CONCLUSION

For the above discussed reasons, the trial court’s judgment in favor of Mrs. Babin and against defendants, State Farm Mutual Automobile Insurance Company and Matthew DeSalvo is affirmed. The trial court’s judgment in favor of Mr. Ba-bin and against defendants, State Farm Mutual Automobile Insurance Company and Matthew DeSalvo is amended to award general damages of $120,000.00 and special damages for medical expenses of $9,387.00, and as amended, is affirmed. All costs are assessed against appellants.

AMENDED, AND AS AMENDED, AFFIRMED

LILJEBERG, J., dissents with reasons.

LILJEBERG, J.,

dissents with reasons.

Iff must respectfully dissent from the majority opinion that reaches the merits of this case. On remand, the trial court, although clarifying its judgment notwithstanding the verdict, did not rule on the plaintiff’s alternative motion for new trial as mandated by La. C.C.P. art. 1811. Consequently, the trial court has not been divested of its original jurisdiction as to this matter. La. C.C.P. arts. 2088 and 2023. As such, I would dismiss this appeal as premature and again remand the matter to the trial court for ruling on the motion for new trial. See, Perrilloux v. Uniforms by Kajan, Inc., 12-413 (La.App. 5 Cir. 12/18/12), 106 So.3d 268; Petranick v. White Consolidated Indus., 03-483 (La. App. 5 Cir. 9/30/03), 857 So.2d 1232; and Eubanks v. Salmon, 98-941 (La.App. 5 Cir. 1/5/99), 726 So.2d 430.

      . As to the appeal granting the JNOV in favor of Mr. Babin, the panel found that the judgment did not specify whether the court was granting the JNOV or a new trial, and that if it meant to grant a JNOV the award was not specified, and thus it was not a judgment. Therefore, the motion for JNOV and/or new trail was still pending. With regard to Mrs. Babin’s appeal, since post-trial motions were still pending, the delay for filing an appeal had not yet commenced.

      . Dr. Altman did not testify at trial. The medical records of his treatment were introduced into evidence.


author: HANS J. LILJEBERG, Judge.

text:
    Geraldyn WILSON v. METROPOLITAN DEVELOPMENT CENTER, an Agency of the State of LA, and FARA Insurance Company.
    No. 12-CA-487.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2013.

      Daniel J. Dazet, Dazet & Associates, Baton Rouge, LA, for Claimant/Appellee.
    James D. Caldwell, Attorney General, Bob Finkelstein, Assistant Attorney General, Litigation Division, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges ROBERT M. MURPHY, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

|2Pefendants, Metropolitan Development Center and the State of Louisiana, appeal the worker’s compensation court’s judgment dated February 27, 2012, in favor of claimant, Geraldyn Wilson. For the following reasons, we reverse and vacate the judgment.

FACTS AND PROCEDURAL HISTORY

On February 19, 2005, claimant was employed by Metropolitan Development Center as a nursing assistant when she allegedly fell and sustained injuries to her left knee and left hip. She was treated by Dr. Robert Shackleton, and he performed arthroscopic surgery on her left knee on April 4, 2005. She continued to treat with Dr. Shackleton for at least three years after the surgery. Medical records admitted into evidence reveal that during his treatment of claimant, Dr. Shackleton opined in June of 2006 and August of 2008 that claimant could work at a sedentary job.

Defendants obtained surveillance of Ms. Wilson in October and November of 2009. The surveillance DVD shows Ms. Wilson on different occasions walking unaided without any apparent difficulty, getting in and out of a car without any difficulty, and even wearing heels. Defendants apparently forwarded a copy of this surveillance to Dr. Shackleton. The medical records of Dr. Shackleton admitted into evidence contain the following notation, dated April 14, 2010:

I was provided with a DVD that was surveillance of Mrs. |sWilson for the dates of October 23, 2009, October 31, 2009, November 11, 2009, November 12, 2009, and November 13, 2009. On each of these dates, she was observed walking without any assistance. She had no limp. She was walking around, [as] though nothing was wrong with her. This is in direct contrast [to] when she comes in the office either on crutches or using a walker complaining of excruciating pain in her legs and inability to walk without assistance. Her complaints in the clinic and observation in the clinic is vastly different from the surveillance. (Emphasis in original).

Thereafter, in his August 25, 2010 report, Dr. Shackleton opined that Ms. Wilson was able to return to work without restrictions. He reiterated his. opinion that Ms. Wilson could return to work with no restrictions in his November 11, 2010 report.

Defendants began paying weekly indemnity benefits to Ms. Wilson after the accident. However, they stopped paying benefits to Ms. Wilson in July of 2010. On October 14, 2010, claimant filed a Disputed Claim for Compensation, asserting that her wage benefits should not have been terminated, that her worker’s compensation rate is incorrect, and seeking penalties, attorney fees, and interest. Trial of the matter was held on February 2, 2012.

At trial, Ms. Wilson testified that on February 19, 2005, while working as a nursing assistant at Metropolitan Development Center, she went into a patient’s room in which “[t]he bathroom had run over” and she slipped and fell in some water. She was taken to Meadowcrest Hospital by ambulance. Ms. Wilson testified that she hurt her buttocks and her back, and her leg was in excruciating pain.

Ms. Wilson stated that she treated with Dr. Shackleton for approximately three years and she last saw him in 2011. She testified that he performed surgery on her left knee, but it did not help and her left leg still hurts. According to Ms. |4Wilson, after the surgery, her left leg “would just go out” without any warning, and she would fall. She claims that she fell as late as three weeks before trial.

Ms. Wilson testified that no doctor has ever told her not to walk or drive. She stated that as of the date of trial, her left knee is always in pain, and she has pain walking and getting in and out of the car. However, her pain is not the same every day. She also stated that she cannot walk long distances without resting.

According to Ms. Wilson, she would love to work, but no one has ever tried to get her a desk job. Ms. Wilson testified that she is not sure if she could work five days a week, but she could try. She stated that when.she was terminated from her job in July of 2005, she did not appeal that decision. She admitted that Dr. Shackleton told her she could probably return to work at a desk job, but she has never applied for any desk job or even looked for a job. Ms. Wilson further admitted that she has not worked anywhere since she injured her leg in February of 2005.

Several exhibits were admitted into evidence at trial, including Ms. Wilson’s medical records and the deposition of Dr. Shackleton. In his deposition taken August 16, 2011, Dr. Shackleton testified that he treated Ms. Wilson for her left knee injury, and he performed surgery on her left knee on April 4, 2005. He reiterated his opinion that Ms. Wilson was able to return to full-duty work, as stated in his August 25, 2010 and November 11, 2010 reports. He further stated that by finding Ms. Wilson was able to return to work with no restrictions, he was indicating that he found her to be at maximum medical improvement.

Although Dr. Shackleton admitted that Ms. Wilson was not seen in his clinic close to the dates of the surveillance, he stated that when he did see her, she complained of excruciating pain in her legs and the inability to walk without assistance, which was vastly different from what he saw on the surveillance DVD. |fiHe noted that when she came to his office, Ms. Wilson used crutches or a walker, would be “moaning and groaning,” and could barely walk down the hall. He testified that he would expect for Ms. Wilson’s pain medication to allow her to perform more activities, but not such a dramatic change as displayed in the surveillance. He further stated that Ms. Wilson lost credibility with him because the surveillance DVD was very different from what she demonstrated in his office. He also opined that patients can have good and bad days, but not with changes this dramatic.

At the conclusion of trial, the worker’s compensation judge took the matter under advisement. Thereafter, on February 27, 2012, the worker’s compensation judge rendered a judgment in claimant’s favor, ordering defendants to pay to Ms. Wilson supplemental earnings benefits in the amount of $1,057.86 per month, retroactive to July 12, 2010, and “continuing until such time as modification is appropriate,” along with legal interest on all past due supplemental earnings benefits. The judgment further ordered defendants to institute vocational rehabilitation services for Ms. Wilson, to pay $8,000.00 in penalties and $10,000.00 in attorney fees for the arbitrary and capricious termination of benefits, and to approve Ms. Wilson’s request to choose a new treating orthopedic surgeon, reserving defendants’ right to have claimant examined by its own choice of physician. Defendants, Metropolitan Development Center and the State of Louisiana, appeal this judgment.

LAW AND DISCUSSION

On appeal, defendants set forth five assignments of error. In their first assignment of error, defendants claim that the trial court erred in ordering them to pay Ms. Wilson supplemental earnings benefits in the amount of $1,057.86 per month retroactive to July 12, 2010, and “continuing until such time as modification |fiis appropriate.” They contend that Dr. Shackleton found that Ms. Wilson could return to full-duty work with no restrictions in his August 2010 report, and his medical testimony was un-refuted. They further note that claimant has never attempted to return to employment of any kind since the accident and that she has not met her burden of proving that she cannot earn ninety percent (90%) of her pre-injury wages.

Ms. Wilson responds that the worker’s compensation judge found Ms. Wilson to be credible and that the findings of the worker’s compensation judge cannot be overturned absent manifest error. She further asserts that the primary defense of defendants is the surveillance DVD totaling ten minutes over a five-day period, which is insignificant, as found by the worker’s compensation judge.

Factual determinations in a worker’s compensation case, including whether the employee has discharged her burden of proof, are subject to the manifest error or clearly wrong standard of appellate review. Polkey v. Landworks, Inc.., 10-718, p. 3 (La.App. 1 Cir. 10/29/10), 68 So.3d 540, 544; Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556. Under this standard, an appellate court may only reverse a worker’s compensation judge’s factual findings if it finds from the record that a reasonable factual basis for the finding does not exist, or that examination of the entire record reveals that the finding is clearly erroneous. Stobart v. State, Department of Transp. and Development, 617 So.2d 880, 882 (La.1993).

Entitlement to supplemental earnings benefits is governed by LSA-R.S. 23:1221(3). Edmondson v. PCA International, American Studios, 02-1989, p. 3 (La.App. 1 Cir. 7/2/03), 859 So.2d 31, 33. The purpose of supplemental earnings benefits is to compensate the injured employee for the wage-earning capacity lost as a result of the injury sustained in the work-related accident. Pinkins v. Cardinal 17Wholesale Supply, Inc., 619 So.2d 52, 55 (La.1993); Johnson v. Orleans Parish School Board, 05-1038, p. 6 (La.App. 4 Cir. 5/3/06), 932 So.2d 687, 692.

In order to recover supplemental earnings benefits, the employee must first prove by a preponderance of the evidence that she is unable to earn wages equal to ninety percent (90%) or more of the wages she earned before the accident. LSA-R.S. 23:1221(3); Seal v. Gaylord Container Carp., 97-688 (La.12/2/97), 704 So.2d 1161, 1166; Hughes v. New Orleans Saints, OS-712, p. 8 (La.App. 5 Cir. 2/27/06), 924 So.2d 1086, 1091, writ denied, 06-1008 (La.6/23/06), 930 So.2d 980. In determining if an injured employee has met her initial burden of proving entitlement to supplemental earnings benefits, the reviewing court must examine all evidence that bears upon the employee’s inability to earn ninety percent or more of his pre-injury wages. Quave v. Airtrol, Inc., 11-1182, p. 5 (La.App. 1 Cir. 6/8/12), 93 So.3d 733, 737. An injured worker’s testimony that she is no longer able to return to her pre-injury employment, without more, is insufficient to prove entitlement to supplemental earnings benefits. Forbes v. Metropolitan Developmental Center, 09-901, p. 12 (La.App. 5 Cir. 3/9/10), 35 So.3d 377, 384.

In the present case, Ms. Wilson sustained an injury to her left knee and hip during a work-related accident on February 19, 2005. Dr. Shackleton performed surgery on her left knee in April of 2005, and she continued to see Dr. Shackleton for treatment.

Defendants paid indemnity benefits to Ms. Wilson from the time of the accident until July 2010, which was after they obtained surveillance of Ms. Wilson walking without assistance or difficulty and even wearing heels on one occasion. Dr. Shackleton testified that the surveillance DVD of Ms. Wilson walking unaided and without difficulty was vastly different from what he saw when she came to his clinic. Our review of the surveillance DVD reveals that Ms. Wilson did indeed | ^appear to walk and get in and out of a car on different occasions without any assistance or apparent difficulty, though her medical records indicate that she had difficulty walking whenever she attended her appointments.

In her reasons for judgment, the worker’s compensation judge found Ms. Wilson to be a credible witness. She further noted that the surveillance DVD contained less than ten minutes of footage over five days, and she apparently found it to be insignificant.

A thorough review of the entire record reveals that Ms. Wilson did not present sufficient evidence to meet her burden of proving that she is unable to earn ninety percent (90%) of her pre-injury wages. As stated above, an injured worker’s testimony that she can no longer work at her pre-injury employment, without more, is insufficient to prove entitlement to supplemental earnings benefits. Thus, it is immaterial that the worker’s compensation judge’s found Ms. Wilson credible and the video footage insignificant, considering the lack of evidence to support Ms. Wilson’s claim.

In his reports of June 2, 2006, and August 8, 2008, Dr. Shackleton opined that claimant could perform sedentary work. In August 25, 2010, he opined that she could return to full-duty work without restrictions. Ms. Wilson did not present testimony or evidence from any doctor or other witness to establish that she could not work or that she could not earn at least ninety percent (90%) of her pre-inju-ry wages. Further, although Ms. Wilson stated that she wanted to return to work, there was no evidence that she had even attempted to return to work in any capacity since the 2005 accident. In fact, at trial, Ms. Wilson stated that she is not sure if she could work five days a week, but she admitted that she has not applied for any jobs whatsoever and has not even looked for any jobs since the accident.

^Considering the testimony and evidence in the record before us, we find that claimant did not meet her burden of proving by a preponderance of the evidence that she is entitled to supplemental earnings benefits. Accordingly, the worker’s compensation judge was manifestly erroneous in awarding supplemental earnings benefits to Ms. Wilson, and we reverse and vacate this award.

In their second assignment of error, defendants contend that the trial court erred in ordering defendants to pay legal interest on all past due supplemental earnings benefits. Considering our finding that no supplemental earnings benefits are owed to Ms. Wilson, clearly there can be no legal interest due.

In their third assignment of error, defendants assert that the trial court erred in ordering defendants to institute vocational rehabilitation services on Ms. Wilson’s behalf, pursuant to LSA-R.S. 28:1226.

LSA-R.S. 23:1226(A) provides that when a work-related injury precludes the employee from earning wages equal to wages earned prior to the injury, the employee shall be entitled to prompt rehabilitation services. The purpose of LSA-R.S. 23:1226 is to educate and increase the job marketability of employees who cannot return to their former positions. Canizaro v. Tangipahoa Parish School System, 02-1913, p. 5 (La.App. 1 Cir. 8/20/03), 853 So.2d 741, 745. However, this does not include employees who are able to return to work but refuse to do so. Id.

In the present case, we first note that Ms. Wilson’s Disputed Claim for Compensation does not allege a dispute regarding vocational rehabilitation or failure of defendants to provide vocational rehabilitation. See Bums v. Interstate Brands Corp., 09-705, p. 7 (La.App. 3 Cir. 2/3/10), 30 So.3d 271, 276. Further, even if this claim had been properly pled, the record does not show that she cannot linearn wages that are equal to her pre-injury wages, as to entitle her to vocational rehabilitation.

Considering all of the evidence before us, along with the applicable law, we find that Ms. Wilson is not entitled to vocational rehabilitation. Accordingly, we reverse and vacate the worker’s compensation judgment ordering defendants to institute vocational rehabilitation services for Ms. Wilson.

In their fourth assignment of error, defendants argue that the trial court erred in ordering defendants to pay Ms. Wilson $8,000.00 in penalties and $10,000.00 in attorney fees for the arbitrary and capricious termination of benefits, pursuant to LSA-R.S. 23:1201(A)(1).

The statutory provisions permitting the assessment of penalties and attorney fees for nonpayment of worker’s compensation benefits are penal in nature and must be strictly construed. Bordelon v. Cox Communications, 05-40, p. 7 (La. App. 5 Cir. 5/31/05), 905 So.2d 1107, 1112, writ denied, 05-1759 (La.1/27/06), 922 So.2d 549; Taylor v. Hollywood Casino, 41,196, p. 8 (La.App. 2 Cir. 6/28/06), 935 So.2d 293, 299. An employee’s right to receive compensation benefits will be deemed reasonably controverted if the employer or insurer had a reasonable basis for believing that compensation was not due. Terro v. WMCO, Inc., 619 So.2d 639, 644-645 (La.App. 3 Cir.1993).

In the present case, defendants terminated payment of worker’s compensation benefits to claimant after obtaining the surveillance DVD and Dr. Shackleton’s opinion that it showed vastly different abilities than Ms. Wilson demonstrated in his office. Considering this evidence and our finding that claimant is not entitled to supplemental earnings benefits, we find that defendants were not arbitrary and capricious in terminating her benefits. Accordingly, we reverse and vacate the award of penalties and attorney fees in the February 27, 2012 judgment.

|T1In their fifth and final assignment of error, defendants claim that the worker’s compensation judge erred in ordering defendants to approve Ms. Wilson’s request to choose a new treating orthopedic surgeon, reserving defendants’ right to have Ms. Wilson examined by their own choice of physician, pursuant to LSA-R.S. 23:1121(A). We agree.

A claimant is not entitled to treatment by a new choice of orthopedist simply because the original choice of orthopedist released her to return to work. Cheatham v. Luberski, Inc., 43,603, p. 6 (La.App. 2 Cir. 9/17/08), 996 So.2d 373, 376. As with a claim for medical expenses under LSA-R.S. 23:1203, the claimant must show that a choice of a new treating physician is medically necessary. Id.; Captain v. Citgo Petroleum Corp., 06-481, p. 3 (La.App. 3 Cir. 9/27/06), 940 So.2d 731, 735.

In the present case, Ms. Wilson did not request a change of treating physician in her Disputed Claim for Compensation. Further, the record before us does not contain any evidence indicating that it is medically necessary for claimant to choose a new treating physician. Further, we note that, in his deposition, Dr. Shackleton opined that Ms. Wilson has reached maximum medical improvement. Accordingly, we find that the worker’s compensation judge erred in ordering defendants to approve Ms. Wilson’s request to choose a new treating orthopedic surgeon, and we reverse this ruling.

DECREE

For the foregoing reasons, we reverse and vacate the February 27, 2012 judgment of the worker’s compensation court in its entirety.

REVERSED AND VACATED

      .. Alvin Ronquille, a private investigator who filmed some surveillance of Ms. Wilson, testified at trial to authenticate the surveillance DVD.


author: ROBERT A. CHAISSON, Judge.

text:
    Mark DINGLER v. HEART CLINIC OF LOUISIANA and Brian J. Cospolich, M.D.
    No. 12-CA-525.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2013.
    Richard T. Gallagher, Jr., Attorney at Law, Metairie, LA, for Plaintiff/Appellant.
    Karen M. Fontana, Stewart E. Niles, Jr., Attorneys at Law, New Orleans, LA, for Defendani/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON, and ROBERT A. CHAISSON.
   ROBERT A. CHAISSON, Judge.

12This is an appeal by Mark Dingier, plaintiff, from a judgment sustaining an exception of prescription urged by Heart Clinic of Louisiana and Brian J. Cospolich, M.D., defendants, in this medical malpractice action. For the following reasons, we affirm that judgment.

FACTS AND PROCEDURAL HISTORY

On October 11, 2006, Mr. Dingier saw Dr. Cospolich at the Heart Clinic of Louisiana with complaints of light-headedness, headache and chest discomfort while doing yard work. Various tests were conducted and Mr. Dingier was asked to return for a maximum cardiovascular stress test. He underwent the stress test on October 23, 2006, however, the test was stopped due to “ST changes and leg pains.” Dr. Cospo-lich noted that the maximum stress test was “abnormal with a 1 mm upsloping ST depression at peak.” He further noted that “more concerning is that he had a 7/10 tightness associated with neck discomfort, left arm discomfort, and he became cool and clammy six minutes into discovery.” Mr. Dingier testified that after he got off the treadmill, he told the staff at the clinic that he felt like he |,was having a heart attack, during the stress test. He further testified that his jaw, arm, and neck began hurting after the stress test.

Dr. Cospolich saw Mr. Dingier after the test and told him to go home, but with instructions to return as soon as possible for an angiogram. While Mr. Dingier and his wife proceeded to the admissions office of the West Jefferson Medical Center to schedule the angiogram, he stopped at the pharmacy to purchase some aspirins, which he immediately took. He testified that he did this because he still thought he might have been having a heart attack. He stated that at that time he did not mention his fears to anyone on the hospital staff.

Mr. Dingier went home and within several hours of his discharge from the stress test, he was still having pains in his neck, arm and jaw. He reported later that same day to the West Jefferson Medical Center’s emergency room where he was diagnosed with a heart attack, and was immediately admitted. He continued to be treated by doctors from the Heart Clinic of Louisiana, albeit not by Dr. Cospolich. One of these physicians, Dr. Chester Fal-terman, confirmed on October 24, 2006, that Mr. Dingier had indeed suffered a heart attack and needed an angiogram that day. The angiogram was done by Dr. Robert Matheney, who discovered that there was a 100% blockage of a main artery and so informed Mr. Dingler’s wife. Mrs. Dingier is a L.P.N., who testified in deposition that she handled all of her husband’s medical matters. Mr. Dingier was discharged from the hospital on October 27, 2006.

For reasons that are not clear in the record, Mr. Dingier decided to obtain a second opinion as to the advisability of his returning to his employment. He saw Dr. Siddarth Bhansali on November 27, 2006, and returned for a stress test on December 6, 2006. Both Mr. Dingier and his wife testified in deposition that Dr. Bhan-sali did not provide them with any information or opinion as to [4Dr. Cospolich’s treatment. However, Mr. Dingier asserted, in both his deposition and in his testimony at the prescription hearing, that it was the disparity in the way the stress tests were administered by Dr. Cospolich and Dr. Bhansali which alerted him to the possibility that the former test was not properly done. It is his contention that it was on December 6, 2006, that the one year prescription of La. R.S. 9:5628 began to run, and that his petition for medical review, filed on December 6, 2007, was thus timely.

Defendants urged an exception of prescription, and after a hearing, the trial judge found that there was constructive knowledge of the claim when Mr. Dingier returned to the hospital and was diagnosed with a heart attack. He therefore sustained the exception of prescription and dismissed the suit with prejudice. This appeal followed.

LAW AND ANALYSIS

In the factually similar case of Bertoniere v. Jefferson Parish Hosp. Service Dist. No. 2, 07-301 (La.App. 5 Cir. 10/30/07), 972 So.2d 328, writ denied, 07-2276 (La.2/15/08), 976 So.2d 177, plaintiff had been examined for chest pains and given an EKG. He was sent home with a diagnosis of left shoulder pain. The next day he went to the hospital and was found to be having a heart attack. Suit was filed against the doctor over one year from the date of the original misdiagnosis of shoulder pain. The defendant doctor filed an exception of prescription which was sustained by the trial court, and affirmed on appeal.

The Bertoniere court reviewed the law and jurisprudence relating to the commencement of prescription in the medical malpractice context of La. R.S. 9:5628 as follows:

Prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort. A prescriptive period will | .begin to run even if the injured party does not have actual knowledge of facts that would entitle him to bring a suit as long as there is constructive knowledge of same. Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry. Such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead. Such information or knowledge as ought to reasonably put the alleged victim on inquiry is sufficient to start running of prescription. Nevertheless, a plaintiff’s mere apprehension that something may be wrong is insufficient to commence the running of prescription unless the plaintiff knew or should have known through the exercise of reasonable diligence that his problem may have been caused by acts of malpractice. Even if a malpractice victim is aware that an undesirable condition has developed after the medical treatment, prescription will not run as long as it was reasonable for the plaintiff not to recognize that the condition might be treatment related. The ultimate issue is the reasonableness of the patient’s action or inaction, in light of his education, intelligence, the severity of the symptoms, and the nature of the defendant’s conduct. Campo v. Correa, 01-2707 (La.6/21/02), 828 So.2d 502, 510-11 (citations omitted.) Id. at 332.

On the facts of that case, the court concluded that the failure of the doctor to diagnose the heart condition on one day, and the occurrence of a heart attack on the next, constituted sufficient knowledge to put plaintiff on inquiry as to the propriety of the treatment. Because such knowledge is sufficient to start the running of prescription, the court ruled that the suit, filed more than one year from the original treatment, had prescribed.

Here, Mr. Dingler’s petition alleges that Dr. Cospolich was negligent in his treatment on October 23, 2006, in that he failed to note the severity of Mr. Dingler’s condition, failed to properly diagnose that condition, failed to properly treat the condition, and failed to admit him to the hospital immediately for the condition. The Heart Clinic of Louisiana was allegedly negligent in not informing Dr. Cospolich of the severity of Mr. Dingler’s condition, an apparent reference to his claim that he told various technicians immediately after the stress test that he was experiencing pains. Based on these facts, the trial judge deemed the | (-.information known to Mr. Dingier when he was hospitalized with a heart attack later on the same day that he was sent home by Dr. Cospolich, to be sufficient to establish constructive knowledge of a problem with Dr. Cospolich’s treatment. We do not find the trial court was manifestly erroneous in its conclusion.

Mr. Dingier argues that on the exception of prescription, the proponent bears the burden of proving that the time has run, and asserts that the trial judge improperly shifted the burden to him. There is no support for this contention in the record. The trial judge simply noted at the end of the hearing that, in his opinion, Mr. Dingier had constructive knowledge sufficient to begin the running of prescription when he returned to the hospital and was found to be suffering a heart attack. This finding was amply supported by the evidence presented by the defendants in support of their exception, and they clearly met their burden of showing that the liber-ative prescription of one year had accrued.

CONCLUSION

For the foregoing reasons, the judgment of the trial court sustaining the defendants’ exception of prescription and dismissing the suit with prejudice is hereby affirmed.

AFFIRMED


text:
    Valerie PERKINS v. JEFFERSON PARISH SHERIFF’S OFFICE.
    No. 12-CA-654.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2013.
    Joseph G. Albe, Attorney at Law, New Orleans, LA, for Appellant.
    Brad G. Theard, Daniel R. Martiny, Attorney at Law, Metairie, LA, for Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, ROBERT M. MURPHY, and HANS J. LILJEBERG.
   ROBERT M. MURPHY, Judge.

12Claimant, deputy sheriff Valerie Perkins, appeals the workers’ compensation judge’s sustaining of the Jefferson Parish Sheriffs exception of no cause of action, dismissing her workers’ compensation claim with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On December 22, 2010, deputy sheriff Valerie Perkins was injured in a work-related auto accident. It is undisputed that she was in the course and scope of her employment with the Jefferson Parish Sheriffs Office (“JPSO”) at the time of the accident.

On April 9, 2012, she filed a disputed claim for compensation seeking benefits under the Louisiana Workers’ Compensation Act (the “Act”). She contends that she was told by Angelle in the Sheriffs Insurance Department that she was entitled to workers compensation benefits including medical expenses; she [«¡also claims that Angelle [DiGiovanni] gave her a form entitled “Workers Compensation Information.”

On May 1, 2012, Jefferson Parish Sheriff Newell Normand filed an exception of no cause of action pursuant to La. R.S. 23:1034(B), which exempts sheriff deputies from coverage under the Act, but also permits the sheriff’s office in its discretion to provide workers’ compensation for its officers with its own funds. On June 1, 2012, the Office of Workers’ Compensation held a hearing on the Sheriffs exception; on June 5, 2012, the court sustained the exception dismissing Deputy Perkins’s claims with prejudice at her costs. The trial judge found that, despite any alleged JPSO employee’s admissions, would handle the matter as a workers’ compensation claim, the workers’ compensation court is not the appropriate tribunal to litigate her claim for benefits.

ISSUES

The claimant contends it was legal error for the trial court to sustain the exception of no cause of action. She argues that any payment made on behalf of the Sheriff effectively triggers the application of the provisions of the Act. The Sheriff argues contrarily that the statute exempting deputy sheriffs from workers’ compensation does not indicate that a payment, in and of itself, results in the claimant’s being covered by the Act.

The issues are: did the trial court err in sustaining the Sheriffs exception of no cause of action, or alternatively, did the trial court err in dismissing the case without permitting leave to amend?

STANDARD OF REVIEW

The appellate court conducts a de novo review of the trial court’s sustaining an exception of no cause of action because the exception raises a question of law. Badeaux v. Southwest Computer Bureau, Inc., 05-0612, p. 7 (La. 3/17/06), 929 So.2d 1211, 1217.

LAW AND DISCUSSION

Deputy Perkins testified that she was a transportation deputy with the Jefferson Parish Sheriffs Office (“JPSO”) on the date of the auto accident. Following the accident, she contended that JPSO paid for certain medical treatment she received. She further testified Angelle Di-Giovanni of the JPSO insurance department provided a form entitled ‘Workers’ Compensation Information.” She also testified that Ms. DiGiovanni told her that she “would get paid a hundred percent” of her salary and medicals and that she “wouldn’t be responsible for anything.” On cross-examination, the claimant admitted she was a deputy sheriff with JPSO on December 22, 2012, the date of the accident.

Louisiana Revised Statute 23:1034, relative to workers’ compensation for public employees, provides an exception to coverage for sheriff deputies at sub-part (B):

Except as expressly and specifically provided to the contrary in Subsection A hereof, the officials exempted from coverage under the provisions of this Chapter, in Subsection A of this Section, include all public officers as defined by R.S. 42:1. In this regard, sheriffs’ deputies are, under R.S. 42.1, 13:5537, and 13:5901 et seq., appointed public officers and officials of their respective subdivisions, the parish law enforcement districts. (Emphasis added).

Despite excluding sheriff deputies from workers’ compensation, the Legislature provided in pertinent part that “any political subdivision may, in its own discretion and by using its own funds available for same, provide workers’ compensation for its officials, in addition to having to provide such coverage for its employees.” La. R.S. 23:1034(C).

The statutory exclusion has been enforced. Kaufman v. City of New Orleans, 98-443 (La.App. 5 Cir. 10/28/98), 720 So.2d 835, writ denied, 98-3169 15(La.2/12/99), 738 So.2d 576. Even as the sheriff voluntarily paid deputy sheriffs salary and medical bills in his discretion after she was injured on the job, this did not establish workers’ compensation coverage for the deputy, who was statutorily excluded from receipt of those benefits. See McKenzie v. Marino, 90-518 (La.App. 5 Cir. 2/14/91), 575 So.2d 506. In McKenzie, the Fifth Circuit affirmed the trial court’s sustaining of the sheriffs exception of no cause of action based on the sheriff deputy’s exclusion from workers’ compensation in La. R.S. 23:1034(B). Id.

We find La. R.S. 1034(B) & (C), the statutory exclusion for sheriff deputies, applicable to Dep. Perkins’s claim. It is undisputed that she was a sheriff deputy employed by the Jefferson Parish Sheriffs Office at the time of the accident. Whether she received verbal or written workers’ compensation information or even salary or medical payments from the sheriffs insurance office, we find that such information or payment did not constitute or establish workers’ compensation coverage for her. McKenzie, 575 So.2d at 506. The trial court did not err in sustaining the Jefferson Parish Sheriffs Office exception of no cause of action.

Perkins also claims that the trial court erred in not permitting an amendment. When the grounds of the exception can be removed by amendment of the petition, Louisiana Code of Civil Procedure article 934 requires the court to order the amendment. On review of the record in this proceeding, the court finds the grounds of the exception, based on the undisputed status of the parties, cannot be removed by amendment of the petition. The Court finds this claim to be without merit.

| ^CONCLUSIONS

Based on the foregoing de novo review, the Court concludes the trial court did not err in sustaining the Sheriffs exception of no cause of action and dismissing claimant/appellant’s claim with prejudice.

ORDER

Accordingly, the ruling of the workers’ compensation court is affirmed.

AFFIRMED

      . This form in evidence has “Workers Compensation Information” in typed letter printed across the top with "JPSO” handwritten on the line printed as "BILL:_”