author: PETERS, J.

text:
    Valerie FABACHER v. STINE, INC.
    No. 13-471.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 9, 2013.
    Rehearing Denied Nov. 20, 2013.

      Michael B. Miller, Jacqueline B. Ma-necke, Crowley, LA, for Plaintiff/Appellee, Valerie Fabacher.
    Matthew P. Keating, Christopher P. Iey-oub, Plauche, Smith & Nieset, LLC, Lake Charles, LA, for Defendant/Appellant, Stine, Inc.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and JOHN E. CONERY, Judges.
   PETERS, J.

hThe defendant, Stine, Inc. (Stine), appeals from a judgment awarding the plaintiff, Valerie Fabacher, supplemental earnings benefits, multiple penalties, and attorney fees. The plaintiff answered this appeal, seeking additional attorney fees for work performed on appeal. For the following reasons, we affirm in part as amended, reverse in part, and render judgment.

DISCUSSION OF THE RECORD

On March 13, 2010, Mrs. Fabacher, who was employed by Stine in the Garden Center section of its Crowley, Louisiana store, sustained a work-related injury to her lower back. She was unloading Windsor wall blocks from a delivery truck when, midway through the unloading process, she experienced a burning sensation down her right leg. Mrs. Fabacher immediately reported the accident to her supervisor, Jeri Landry, but continued working until the end of her shift. She first obtained medical attention for her injury two days later when she saw her family physician, Dr. Carl J. Richard. Dr. Richard, a general practitioner who practices in Kaplan, Louisiana, diagnosed Mrs. Fabacher as suffering from sciatica of her right leg and restricted her from working indefinitely.

The next day, March 16, 2010, Stine arranged for Mrs. Fabacher to be seen by its physician, Dr. Yarmen Korab. Dr. Korab, a Crowley,- Louisiana general practitioner, also diagnosed Ms. Fabacher as suffering from acute sciatica, in addition to low-back pain, and treated her with medication. When Mrs. Fabacher next saw Dr. Korab on March 30, 2010, her low-back pain had increased and she had begun to suffer weakness in her right leg. Dr. Kor-ab ordered that a diagnostic MRI be obtained and excused Mrs. Fabacher from working through at least April 21, 2010. The MRI, which was performed on March 30, or the same day as the 12follow-up visit, revealed a large disc herniation at the right, mediolateral aspect of L5-S1, with some effusion of the upper fragment noted interiorly. After reviewing these findings, on April 5, 2010, Dr. Korab recommended that Mrs. Fabacher see a neurosurgeon prior to any attempt to return to work. When her April 20, 2010 return visit reflected that her symptoms were unchanged, Dr. Korab recommended that she see a neurosurgeon as soon as possible.

Mrs. Fabacher acted on Dr. Korab’s recommendation and obtained an appointment with Dr. Luiz C. de Araujo, a Lafayette, Louisiana neurosurgeon, on June 28, 2010. Dr. de Araujo’s initial examination of Mrs. Fabacher caused him to conclude that her symptoms were consistent with a disc herniation at L5-S1. The March 30, 2010 MRI confirmed Dr. Araujo’s initial diagnosis of a large disc herniation at that level, and he recommended that she treat the condition with physical therapy, anti-inflammatory medications, and muscle relaxants. Although Dr. de Araujo recommended that she not return to work, he agreed to release Mrs. Fabacher to light-duty work at her request. However, in a June 28, 2010 letter to Dr. Richard, he stated that Mrs. Fabacher was not fit for duty.

Stine then scheduled Mrs. Fabacher for a second medical opinion (SMO) with Dr. Ricardo R. Leoni, a Lafayette neurosurgeon, on July 15, 2010. Three days before the scheduled appointment with Dr. Leoni, Mrs. Fabacher saw Dr. de Araujo for a follow up visit. When she saw Dr. de Araujo on July 12, 2010, physical therapy had yet to be approved by Stine or its workers’ compensation carrier. This failure to approve the recommended medical treatment created problems for Dr. de Araujo in addressing the complaints of his patient because he considered the physical therapy treatment a necessary next step before he could further evaluate Mrs. Fa-bacher.

|sMrs. Fabacher failed to keep the July 15, 2010 appointment with Dr. Leoni, on the advice of her counsel, and Stine rescheduled it for August 17, 2010. After examining Mrs. Fabacher on that day, Dr. Leoni noted numbness in the S-l distribution, weakness in the dorsiflexion of her foot, and an absent right ankle jerk. He suggested that he normally recommends microdiscectomy surgery for patients with those symptoms, and he expressed a concern that the lost function and weakness in Mrs. Fabacher’s right foot might be permanent given the presence of the symptoms for several months. Finally, he expressed a belief that Mrs. Fabacher would reach maximum medical improvement (MMI) in three to four months. At the time he examined Mrs. Fabacher, Dr. Leo-ni was of the opinion she was capable of performing sedentary to light-duty work so long as that work did not require lifting of anything greater than ten to fifteen pounds.

Sometime after her July 12, 2010 visit to Dr. de Araujo, Mrs. Fabacher began receiving physical therapy treatments, and she responded well to those treatments. When she returned to Dr. de Araujo on September 13, 2010, he found that her condition was much improved in that she could walk and move much better than before. However, based on her occasional complaints of radicular pain, he recommended continued physical therapy for several more weeks.

When Mrs. Fabacher returned for an office visit on October 11, 2010, Dr. de Araujo found that his patient was virtually symptom free. Based on this finding, he released her to return to medium-duty work. On November 8, 2010, Dr. de Arau-jo responded to an October 27, 2010 letter from Martha Raines, a nurse care manager retained by Stine’s workers’ compensation administrator, Gallagher |4Bassett Services, Inc. (Gallagher), wherein he asserted that he believed Mrs. Fabacher could perform the light-duty obligations of a customer coordinator.

When Mrs. Fabacher returned to Dr. de Araujo on November 22, 2010, she had yet to return to work in any capacity, and she advised the doctor that she still suffered from occasional episodes of right-leg pain. Although Dr. de Araujo was still of the opinion that Mrs. Fabacher could return to work with restrictions, he did not believe she had reached her MMI level. He planned to reevaluate her approximately six weeks into her medium-duty work and, if she was doing well, to have her undergo a functional capacity evaluation in order to determine her work level. He still believed that at some point she would reach MMI, but did acknowledge that there was a possibility her condition would worsen. If it did, she would be a candidate for surgery.

During the early period of Mrs. Fabacher’s medical treatment, and despite the uncontroverted findings of the doctors treating her, Stine did not begin timely paying workers’ compensation benefits. Mrs. Fabacher first made demand on her employer for workers’ compensation benefits and related expenses by correspondence from her attorney dated April 21, 2010. The next day, she filed a disputed claim for compensation citing Stine’s failure to pay indemnity benefits and its refusal to authorize her referral to Dr. de Araujo by Dr. Korab. Based on the actions and/or inactions of Stine, she sought statutory penalties, attorney fees, and legal interest on the amounts that might be awarded to her. After receipt of a second demand letter from Mrs. Fabacher’s attorney dated June 29, 2010, Stine finally responded by tendering payment for some claimed benefits. This came in | .¡¡the form of a July 16, 2010 check to Mrs. Fabacher in the amount of $4,576.32 issued by Gallagher. The amount represented temporary total disability benefits (TTD) covering the period from March 15 through July 18, 2010. However, three days later, Glynda Pino, Gallagher’s claims adjustor assigned to this claim, terminated Mrs. Fabacher’s TTD effective July 19, 2010.

Ms. Pino took this termination action based on Mrs. Fabacher’s failure to appear at the July 15, 2010 medical appointment with Dr. Leoni and her failure to return to work within twenty-four hours of her release to light-duty work by Dr. de Araujo on June 28, 2010. According to Ms. Pino, this latter reason was based on an internal company policy to that effect, said policy being set forth in Stine’s associate handbook. At the point she made this decision, she was not aware of the reason Mrs. Fabacher failed to appear, and she could not say if Stine had even offered Mrs. Fabacher a position, much less one that had been approved by her treating physician.

In her trial testimony, Ms. Pino pointed to Dr. Leoni’s August 17, 2010 opinion that Mrs. Fabacher could perform sedentary/light-duty work as additional support for her actions. She testified that pursuant to Stine’s associate handbook, Mrs. Fabacher was required to return to work within twenty-four hours of her release from the physician’s care or have her employment terminated. Again, as was the case the month before, the record contains no evidence that a position existed for Mrs. Fabacher.

|fiMrs. Fabacher did receive a written offer to return to work from Stine, but in November and not July of 2010. On November 9, 2010, Diane Soileau, Stine’s Executive Assistant, notified Mrs. Fabacher by letter that her doctor had approved a modified position for her as a customer coordinator and that she should report for work at the Crowley, Louisiana store on the morning of November 23, 2010. Ms. Soileau forwarded this letter based on information received from a nurse case worker, who informed her that Mrs. Fa-bacher had been released to restricted duty. Mrs. Fabacher did not report for work on November 9, 2010, nor did she inform Stine that she would not report. A second letter from Ms. Soileau dated December 18, 2010, instructed her to return to work on December 29, 2010, and she complied with that instruction. From that day through the trial of this matter, Mrs. Fabacher has continuously worked as a customer coordinator at Stine’s Crowley, Louisiana store at her pre-injury wage of ten dollars per hour. However, since returning to work, she has worked less than forty hours per week due to a company-wide reduction in employee hours.

This matter proceeded to a trial on the merits, which took place over three days: May 11, 2011; September 28, 2011; and October 4, 2011. During the trial, the parties entered into the following stipulations:

1. Mrs. Fabacher was employed by Stine on March 13, 2010, the date of her work-related accident.
2. Mrs. Fabacher sustained a work-related accident on March 13, 2010.
3. Mrs. Fabacher reported her work-related accident to paint department manager, Jeri Landry, on March 13, 2010.
4. Mrs. Fabacher’s weekly wage as of March 13, 2010, was $429.00.
[75. Stine did not commence paying weekly indemnity benefits to Mrs. Fabacher within fourteen days of the date of the accident, in violation of La.R.S. 23:1201(B). Due to the length of time, claimant is entitled to statutory maximum penalty of $2,000.00 pursuant to La.R.S. 23:1201(F).
6. Stine did not timely authorize and/or guarantee treatment with Dr. Carl Richard, in violation of La.R.S. 23:1201(E). Due to the length of time, Mrs. Fabacher is entitled to the statutory maximum penalty of $2,000.00 pursuant to La.R.S. 23:1201(F).
7. Stine did not timely reimburse Mrs. Fabacher for her $115.00 out-of-pocket medical expenses for medical treatment with Dr. Carl Richard. Due to the length of time, claimant is entitled to the statutory maximum penalty of $2,000.00 pursuant to La. R.S. 23:1201(F).
8. Stine did not timely provide Mrs. Fabacher with a copy of the medical report of Dr. Korab, in violation of La.R.S. 23:1125, thus entitling Mrs. Fabacher to the fixed penalty of $250.00.

At the close of evidence, the workers’ compensation judge (WCJ) took the matter under advisement. On December 27, 2012, the WCJ rendered reasons for judgment on the remaining issues, finding: that Mrs. Fabacher was entitled to supplemental earnings benefits (SEB) from July 18 through December 29, 2010, based on a zero earning capacity; that Mrs. Fabacher was also entitled to SEB from December 29, 2010 forward, for any period that she earned less than ninety percent of her pre-injury wages; that Mrs. Fabacher was entitled to a post-judgment penalty of $3,000.00, based on Stine’s failure to pay the stipulated penalties within thirty days of the stipulation; and awarding Mrs. Fa-bacher a total of $15,000.00 in attorney fees for the various penalty issues before it. The WCJ reduced the stipulations and reasons for judgment to a written judgment on January 11, 2013.

Stine perfected a partial suspensive appeal from the WCJ judgment, raising five assignments of error:

(A) The Trial Court erred as a matter of law in finding that employer’s termination of benefits effective July 18, 2010 was |sarbitrary and capricious, and/or without probable cause, and awarding penalties and attorney fees under 23:1201(1) as a result of same;
(B) The Trial Court erred as a matter of law in awarding temporary total disability benefits to claimant for the period of July 18, 2010 to December 29, 2010;
(C) The Trial Court erred as a matter of law in awarding claimant supplemental earnings benefits for the period December 29, 2010 to present;
(D) The Trial Court erred as a matter of law in awarding post-judgment penalties for employer’s non-payment of stipulated amounts within 30 days of making the stipulations on the record; and
(E) The Trial Court erred as a matter of law in awarding an excessive attorney fee award to claimant for stipulated penalties under 23:1201(B), 23:1201(F) and 23:1125.

Mrs. Fabacher answered Stine’s appeal, requesting additional attorney fees for work performed by her counsel in defending this appeal,

OPINION

Factual findings in workers’ compensation cases are reviewed on appeal pursuant to the same standard of review applied in tort cases, the manifest error— clearly wrong standard:

[F]actual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129, 132; Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733, 737-38. 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. Freeman, supra at 737-38; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). “In determining whether a [WCJ’s] finding that an employee has met his initial burden of proving entitlement to SEBs is manifestly erroneous, a reviewing court must examine all evidence that bears upon the employee’s inability to earn 90% or more of his pre-injury wages.” Seal v. Gaylord Container Corp., 97-0688 (La.12/2/97), 704 So.2d 1161, 1166.

Poissenot v. St. Bernard Parish Sheriffs Office, 09-2793, p. 6 (La.1/9/11), 56 So.3d 170, 174 (first alteration ours).

Furthermore, a legal error by the WCJ presents a question of law, which is reviewed by determining whether the WCJ’s ruling is legally right or wrong. LeBlanc v. Lafayette Consol. Gov’t, 07-1608 (La.App. 3 Cir. 5/28/08), 983 So.2d 1022.

Analysis of the First Three Assignments of Error

In these assignments of error, Stine argues that the WCJ erred in finding that it acted arbitrarily and capriciously in terminating Mrs. Fabacher’s TTD on July 18, 2010; in awarding her TTD for the period between July 19, 2010, and December 28, 2010; in awarding her SEB from December 29, 2010 forward; and in awarding her statutory penalties and attorney fees pursuant to La.R.S. 23:1201(1).

With regard to the statutory penalty issue, we first note that La.R.S. 23:1201(1) provides:

Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims. The provisions as set forth in R.S. 23:1141 limiting the amount of attorney fees shall not apply to cases where the employer or insurer is found liable for attorney fees under this Section. The provisions as set forth in R.S. 22:1892(C) shall be applicable to claims arising under this Chapter.

Any “willful and unreasoning action, without consideration and regard for facts and circumstances presented, or of seemingly unfounded motivation” is arbitrary and capricious behavior. Lewis v. Temple Inland, 11-729, pp. 6-7 (La.App. 1 Cir. 11/9/11), 80 So.3d 52, 58. Thus, any action taken by the employer against the | inemployee’s best interest is considered arbitrary and capricious, and the critical inquiry in determining whether the employer’s actions were arbitrary and capricious is whether the employer articulated an objective reason for its actions at the time it discontinued the benefits. Id.

With regard to the TTD issue, we note that the award of such benefits is appropriate once an employee proves, by clear and convincing evidence, unaided by any presumption of disability, that he or she is physically unable to engage in any employment as a result of a work-related injury. La.R.S. 23:1221(1). Disability is proven by medical and/or lay testimony, and the WCJ must weigh all evidence in determining whether the employee has satisfied her burden of proof. Jack v. Prairie Cajun Seafood Wholesale, 07-102 (La.App. 3 Cir. 10/3/07), 967 So.2d 552, writ denied, 07-2388 (La.2/15/08), 976 So.2d 178. A disability finding is a factual determination and is reviewed pursuant to the manifest error standard of review. Id.

Considering the SEB issue, the law is clear that an employee who can perform light-duty or even sedentary work is not entitled to TTD. Hall v. MacPapers, Inc., 11-1548 (LaApp. 4 Cir. 5/30/12), 95 So.3d 1131.

“The purpose of [SEBs] is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident.” Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556. An employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. La. R.S. 23:1221(3)(a). Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Banks, supra at 556. “In determining if an injured employee has made out a prima facie case of entitlement to [SEBs], the trial court may and should take into account all those factors which might bear on an employee’s ability to earn a wage.” Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1009 (La.1989) (quoting Gaspard v. St. Paul Fire and Marine Ins. Co., 483 So.2d 1037, 1039 (La.App. 3 Cir.1985)). It is only when the employee overcomes this initial step that the burden shifts to the employer to prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employee’s community or reasonable geographic location. La. R.S. 28:1221(3)(c)(i); Banks, supra at 556; Daigle, supra at 1009.
The analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that workers’ compensation is to be liberally construed in favor of coverage. Daigle, supra at 1007. Further, factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129, 132; Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733, 737-38. 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. Freeman, supra at 737-38; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). “In determining whether a [WCJ’s] finding that an employee has met his initial burden of proving entitlement to SEBs is manifestly erroneous, a reviewing court must examine all evidence that bears upon the employee’s inability to earn 90% or more of his pre-injury wages.” Seal v. Gaylord Container Corp., 97-0688 (La.12/2/97), 704 So.2d 1161, 1166.

Poissenot, 56 So.3d at 174-75 (footnote omitted) (alteration in original).

However, if the employee’s inability to earn ninety percent of her pre-injury wages is due to “circumstances other than her work-related injury[,]” she is not entitled to SEB. Coleman v. Walter Indus., Inc./Jim Walter Homes, 10-1145, p. 9 (La. App. 1 Cir. 2/11/11), 56 So.3d 1258, 1262.

In considering Stine’s first assignment of error, we note that Ms. Pino gave two reasons for the termination of benefits effective July 18, 2010: (1) Mrs. Fabacher’s failure to appear at the July 15, 2010 SMO with Dr. Leoni; and (2) Mrs. Fabacher’s failure to return to work within twenty-four hours after being released |12to light-duty work by Dr. de Araujo. We find no merit in Stine’s reliance on either of these reasons.

Louisiana Revised Statutes 23:1124 does provide that an employee’s indemnity benefits will be suspended if he or she refuses to submit to an examination by the employer’s choice of physician and shall not recommence until the disputed examination occurs. However, the suspension of benefits is not automatic. Rather, the suspension only occurs after the WCJ determines that the proposed examination is reasonable as to “time, place, and circumstances.” Atwell v. First Gen. Servs., 06-392, p. 11 (La.App. 1 Cir. 12/28/06), 951 So.2d 348, 356, writ denied, 07-126 (La.3/16/07), 952 So.2d 699. In this case, Stine sought no hearing before the WCJ to determine the reasonableness of the examination date, and the benefits were terminated unilaterally by Ms. Pino.

With regard to' Mrs. Fabacher not timely returning to work after being released by Dr. de Araujo, the medical evidence establishes that although Dr. de Araujo released Mrs. Fabacher for light-duty work on June 28, 2010, he did so at her specific request. However, the doctor did not consider her capable of returning to work in any capacity at that time, and he advised her against it. The first medical evidence that suggests Mrs. Fabacher could return to work in any capacity was Dr. Leoni’s August 17, 2010 opinion.

Given the record before us, we find no error in the WCJ’s determination that Stine was arbitrary and capricious in terminating Mrs. Fabacher’s workers’ compensation benefits effective July 18, 2010. Thus, we find no merit in Stine’s first assignment of error.

_[jjNext, Stine asserts that the WCJ erred in awarding SEB at a zero base for the period from July 18, 2010 through December 29, 2012. We find no merit in this assignment of error, as well.

The medical evidence establishes that Dr. de Araujo saw Mrs. Fabacher on July 12, 2012, and concluded that she was still unable to return to even light-duty work at that time. In fact, at this point, Stine had yet to authorize physical therapy. As previously stated, Dr. Leoni concluded, after his August 17, 2010 examination, that Mrs. Fabacher could perform sedentary or light-duty work. Dr. de Araujo finally reached the determination that Mrs. Fa-bacher could perform medium-duty work after he examined her on October 11, 2010. Thus, only as of August 17, 2010, does the medical evidence support a finding that Mrs. Fabacher was no longer entitled to TTD. Halt, 95 So.3d 1131.

Concerning her inability to earn ninety percent or more of her pre-injury wages during the period in question, Mrs. Fa-bacher testified at trial that she is still under Dr. de Araujo’s care, awaiting his release, and that since sustaining her work-related injury, her activities have diminished; she suffers from a slight drop in her right foot; her back hurts if she stands in one place too long; and that she is still incapable of doing anything involving lifting. We find no error in the WCJ’s determination that this evidence satisfied the prima facie case requirement set forth in Hall.

Once Mrs. Fabacher established her pri-ma facie case, the burden shifted to Stine to establish that during the time period at issue, Mrs. Fabacher was able to | uPerform a specific job and that such a job had been offered to her in the community or other reasonable geographic location. Id.

The record reflects that prior to the November 9, 2010 letter from Ms. Soileau instructing Mrs. Fabacher to report to work on November 23, 2012, Mrs. Fabacher received no offer of employment from Stine. However, that letter was insufficient in that it did not contain a description of the duties associated with the position being offered nor did it show that Dr. de Araujo had approved the position. Furthermore, there exists no evidence in the record to establish that Mrs. Fabacher was aware of the duties or Dr. de Araujo’s approval of the position. The content defects of the November 9, 2010 letter were cured by the December 18, 2010 letter, and Mrs. Fabacher responded by reporting to work as instructed on December 29, 2010.

Stine also relies on the provision in the associate handbook, which requires an employee to report to work within twenty-four hours of being released to work. Failure to do so would, according to the manual, constitute a voluntary resignation from employment. Thus, Stine asserts that when Mrs. Fabacher failed to report for work within twenty-four hours of Dr. Leoni’s August 17, 2010 conclusion, she voluntarily terminated her employment and forfeited her right to SEBs.

The specific provision of the employee manual states, “Failure to return to work within 24 hours of release from Workers’ Compensation leave or release to ‘light duty’ will be considered a voluntary resignation.” The Associate Acknowledgement Form, signed by Mrs. Fabacher on November 5, 2007, acknowledges that she received or had access to the manual and that it was her | ^responsibility to know and comply with its policies. However, it further states that the employee manual is neither a contract of employment nor a legal document. Accordingly, we find that Stine could not rely on the policy at issue for finding that Mrs. Fabacher was not entitled to indemnity benefits.

While we find that the WCJ did not err in awarding Mrs. Fabacher TTD for one period and SEB based on a zero earning capacity for another period, we do find that the time periods at issue must be adjusted to conform to the medical evidence presented at trial. The first medical finding that Mrs. Fabacher was capable of performing work at any level came with Dr. Leoni’s opinion on August 17, 2010. Therefore, we find that Mrs. Fabacher was entitled to TTD benefits through August 17, 2010, and not July 18, 2010; and that she was entitled to SEB from August 18, 2010, and not July 19, 2010, through December 29, 2010, the date she returned to her employment with Stine.

With regard to its third assignment of error, Stine asserts that the WCJ erred in awarding SEB from December 29, 2010 forward. Stine points out that Mrs. Fabacher has earned her pre-accident hourly wage of $10.00 since returning to work, and the reason she now works only thirty-five hours per week instead of her previous forty hours per week arises from an across-the-board cutback of all employees for financial reasons. We find merit in this argument.

The evidence in the record is undisputed that in early 2011, Stine reduced the hours of all employees to avoid layoffs. Mrs. Fabacher’s return to work corresponded to this cutback, and her reduced hours had nothing to do with her ability to perform her duties. This circumstance, unrelated to her work-related injury, caused her inability to earn ninety percent of her pre-injury wages, and she is not entitled to SEB subsequent to December 29, 2010. Coleman, 56 So.3d 1258.

| Analysis of the Fourth Assignment of Error

In this assignment of error, Stine argues that the WCJ erred in awarding Mrs. Fabacher post-judgment penalties based on its failure to pay the stipulated penalties within thirty days of entering the stipulations. We agree.

Louisiana Revised Statutes 28:1201 (G) provides:

If any award payable under the terms of a final, nonappealable judgment is not paid within thirty days after it becomes due, there shall be added to such award an amount equal to twenty-four percent thereof or one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater, which shall be paid at the same time as, and in addition to, such award, unless such nonpayment results from conditions over which the employer had no control. No amount paid as a penalty under this Subsection shall be included in any formula utilized to establish premium rates for workers’ compensation insurance. The total one hundred dollar per calendar day penalty provided for in this Subsection shall not exceed three thousand dollars in the aggregate.

“A stipulation has the effect of a judicial admission or confession, which binds all parties and the court. Stipulations between the parties in a specific case are binding on the trial court when not in derogation of law. Such agreements are the law of the case.” R.J. D’Hemecourt Petroleum Inc. v. McNamara, 444 So.2d 600, 601 (La.1988), cert. denied, 469 U.S. 820, 105 S.Ct. 92, 83 L.Ed.2d 39 (1984) (citations omitted).

The facts relating to this issue arise from the stipulations entered into by the parties on the second day of trial, September 28, 2011. However, the trial was not completed that day and was continued until October 4, 2011. On that day, the evidentiary record was completed and the WCJ took the matter under advisement. In her December 27, 2012 reasons for judgment, the WCJ noted that Mrs. Fa-bacher requested that a post-judgment penalty be assessed against Stine for its failure to pay the stipulated penalties within thirty days of September 28, 2011. The WCJ awarded Mrs. Fabacher a post-judgment penalty of $8,000.00.

|17We find that the WCJ legally erred in awarding this penalty. Louisiana Revised Statutes 23:1201(1) provides that a “final, nonappealable judgment” triggers the running of the thirty-day period. Although the stipulations had the effect of a judicial confession and were binding on Stine, they did not become a part of a final, nonap-pealable judgment until they and the WCJ’s other findings were reduced to writing and rendered by the WCJ as part of her December 27, 2012 judgment. Accordingly, the judgment of the WCJ awarding Mrs. Fabacher a post-judgment $3,000.00 penalty is reversed.

Analysis of the Fifth Assignment of Error

In its final assignment of error, Stine does not dispute the time Mrs. Fa-bacher’s attorneys worked on her case at the trial level or the hourly rate credited to that time. Instead, Stine argues that a $15,000.00 attorney fee award in conjunction with the stipulated penalties under La.R.S. 23:1201(B), La.R.S. 23:1201(F), and La.R.S: 23:1125 is excessive.

Stine bases its argument partly on the assumption that this court will find that it did not improperly terminate Mrs. Fa-bacher’s indemnity benefits and that it was not late in paying the stipulated penalties, and it relies primarily on this court’s holding in Monceaux v. Tosco Marketing Company, 01-1019 (La.App. 3 Cir. 12/12/01), 801 So.2d 614, writ denied, 02-104 (La.3/28/02), 811 So.2d 944. In Monceaux, the plaintiff had requested $10,875.00 in attorney fees based on eighty-seven hours of work at $125.00 per hour, and the WCJ limited the award to $3,500.00. It did so based on the fact that the primary dispute in the litigation was between two insurers over who was liable and that the only issue reasonably controverted was the wage calculation. Thus, the WCJ based the award on the single issue not reasonably controverted. This court affirmed the WCJ judgment, 1^finding that the WCJ was not “clearly wrong in limiting counsel’s compensation to the work he performed in connection with the .arbitrary conduct which gave rise to the assessment of attorney’s fees.” Id. at 619. In reaching that conclusion, this court stated the following:

We have considered several rules of law in deciding this case: 1) Each case must be decided on its owns [sic] facts; 2) Statutes which are penal in nature must be strictly construed; and 3) The rule governing the appellate review of workers’ compensation cases as set out by this court in Desselle v. The Oaks Care Center, 01-0044, p. 4 (La.App. 3 Cir. 5/2/01); 787 So.2d 500, 502, writ denied, 01-1193 (La.4/25/01); 790 So.2d 646:
An appellate court may not set aside the factual findings of a workers’ compensation judge in the absence of a manifest error or unless it is clearly wrong. Wackenhut Corrections Corp. v. Bradley, 96-796 (La.App. 3 Cir. 12/26/96); 685 So.2d 661. The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. The workers’ compensation judge has great discretion in an award of attorney’s fees and penalties, and his or her discretion will not be disturbed unless it is clearly wrong. George v. M & G Testing and Services, Inc., 95-31 (La.App. 3 Cir. 7/19/95); 663 So.2d 79, writ denied, 96-0039 (La.3/8/96); 669 So.2d 403.

Id. at 618-19.

In the recent case of Magbee v. Federal Express, 12-77 (La.App. 3 Cir. 12/12/12), 105 So.3d 1048, this court again addressed the issue of whether the statutory attorney fee should be based on only the time spent on the penalty-related issues or on the entire litigation and concluded that the supreme court decision in McCarroll v. Airport Shuttle, Inc., 00-1123 (La.11/28/00), 773 So.2d 694, required the latter remedy. In McCarroll, the supreme court stated the following:

In our determination of the respective rights of the employee and the attorney to the statutory attorney fees, a persuasive factor is the methodology used to calculate the amount of the statutory attorney fees. The only limitation on the amount is the reasonableness of the 119fee awarded by the judge. Cain [v. Employers Cas. Co., 236 La. 1085, 110 So.2d 108 (1959) ]. The amount awarded rests within the discretion of the workers’ compensation judge, as long as that amount is supported by the record. Some of the factors taken into account by the judge in fixing the amount of the fee are the degree of skill and ability exercised by the attorney, the amount of the claim, the amount recovered for the employee, and the amount of time the attorney devoted to the case. H. Alston Johnson, III, [Louisiana Civil Law Treatise: Workers’ Compensation Law and Practice] § 389 [(3rd ed.1994) ]. The amount awarded is intended to provide full recovery, without statutory limitar tion, for attorney’s services and, expenses in connection with the litigation. If the attorney were allowed to collect the contractual attorney fees in addition to the full compensation awarded in the statutory attorney fees, the attorney would get double recovery (to the extent of the limited contractual fee) for his services, at the expense of his client.
We therefore conclude that the statutory attorney fees, awarded to the employee in cases of arbitrary behavior of the employer or the insurer, were intended to benefit the employee, who would otherwise have to pay the contractual attorney fees out of his or her benefits recovered in the litigation, and were not intended to provide additional fees to the employee’s attorney, who received the amount of the statutory attorney fees as full compensation for legal services in the litigation.

Id. at 700 (emphasis added).

Thus, we reject Stine’s argument that the attorney fee award should be limited to only the time spent on the penalty issues. Mrs. Fabacher was successful on every issue that arose at trial. On appeal, the only issue on which she did not prevail involved the award of SEB subsequent to her return to work on December 29, 2010. Based on the supreme court’s holding in McCamll, our holding in Magbee, and the great discretion accorded a WCJ in awarding attorney fees, we find no abuse of discretion in the award of attorney fees. However, the WCJ’s calculation of the fee was based on its conclusion that Mrs. Fa-bacher was entitled to recover SEBs from December 29, 2010 forward, and as previously stated, wejjgfind that conclusion to be in error. Had the WCJ’s attorney fee award included time for an issue wherein Mrs. Fabacher was unsuccessful at the trial level, such an award would have been an abuse of discretion. Thus, our review of the record without considering that issue causes us to conclude that the record only supports an award of $12,000.00. Minor v. J & J Carpet, Inc., 10-45 (La.App. 3 Cir. 6/2/10), 40 So.3d 434.

Mrs. Fabacher’s Answer to the Appeal

In the final issue before us, Mrs. Fabacher requests that we award her additional attorney fees for the work performed by her counsel in defending this appeal. Considering that she has been generally successful in the defense of her judgment on appeal, we find that she is entitled to additional attorney fees, and we award her an additional $5,000.00 in attorney fees.

DISPOSITION

For the foregoing reasons, we render judgment awarding Mrs. Fabacher TTD from July 19 through August 17, 2010; we amend the WCJ judgment to award Mrs. Fabacher SEB, at a zero earning capacity, from August 18 through December 29, 2010; we reverse the WCJ judgment awarding Mrs. Fabacher $3,000.00 in post-judgment penalties and the award of SEB subsequent to December 29, 2010; and we affirm in all other respects. We further award Mrs. Fabacher an additional $5,000.00 in attorney fees for work performed on appeal. The costs of this appeal are assessed to Stine, Inc.

AFFIRMED IN PART AS AMENDED; REVERSED IN PART; AND RENDERED.

SAUNDERS, J., concurs in the result.

      . The duties of a customer coordinator were defined in an attachment to Ms. Raines’ correspondence. Mrs. Fabacher suggested that the position entailed greeting customers, asking them if they needed help, and directing them to the appropriate area of the store.

      . Ms. Pino suggested that a letter had been sent to Mrs. Fabacher instructing her to return to work within two weeks of July 12, 2010. However, she could not identify who sent the letter or whether Mrs. Fabacher received it. The record does not contain a copy of this letter, and Mrs. Fabacher denies having received it.

      . We note that the WCJ awarded Mrs. Fa-bacher SEB and not TTD for this period, and we will consider this assignment of error from that prospective.

      . Her third reason for terminating benefits, Dr. Leoni’s August 17, 2010 opinion that Mrs. Fabacher could perform sedentary/light-duty work, cannot be relied on by Stine as it occurred almost one month after benefits were terminated.

      . Erroneously referred to in the second assignment of error as TTD.

      . In her testimony, Mrs. Fabacher denied ever receiving a copy of the job description for the position of customer coordinator or of ever having a discussion with Dr. de Araujo wherein he informed her that he had approved the position for her.

      . The issue of the post-judgment penalty for the failure to pay the stipulated amounts within thirty days of the stipulations arose after the conclusion of the trial on the merits and the prior to the WCJ issuing her reasons for judgment.


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    STATE in the Interest of I.B.W.
    No. 13-517.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 9, 2013.

      Thomas G. Wilson, Pineville, LA, for appellant A.V.
    Guy R. Lain, Ferriday, LA, for appellee Grant Parish Department of Child and Family Services.
    Renee P. Cote, Shreveport, LA, for ap-pellee I.B.W.
    Joseph P. Beck, III, Ball, LA, for appel-lee B. W.
    Misty A. Prudhomme, Assistant District Attorney, Colfax, LA, for appellee State of Louisiana.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and PHYLLIS M. KEATY, Judges.
   AMY, Judge.

|,The State sought to take the appellant’s newborn into State custody on the basis that the mother had continuing dependency problems and had not been progressing on her already-extant case plan. At the hearing on that order, the mother moved to dismiss based on the failure to hold a continued custody hearing within three days. The trial court denied the motion. The mother also objected to the trial court’s consolidation of the instant case with the pending case concerning her two other children. The trial court also denied that motion and consolidated the two cases. The mother appeals. For the following reasons, we affirm.

Factual and Procedural Background

According to the record, two of A.V.’s minor children, G.K. and C.S., were previously placed in foster care. A child-in-need-of-care case under docket number J-2674 is pending concerning G.K. and C.S. In February of 2013, A.V. gave birth to I.B.W. Shortly thereafter, the Department of Children and Family Services responded to a report that A.V. had a substance dependency problem. After investigating the report, the State sought an instanter order. Under docket number J-2737, the trial court granted that order on February 28, 2013, and ordered that I.B.W. be taken into temporary State custody. A continued custody hearing was scheduled for March 6, 2013.

At the continued custody hearing, A.V. moved to dismiss the proceedings on the basis that the continued custody hearing was not held within the three-day period prescribed by La.Ch.Code art. 624. The trial court denied that motion. On its own motion, the trial court consolidated the instant matter, J-2737, with docket 12number J-2674. A.V. objected to the consolidation, and her objection was overruled by the trial court.

A.V. appeals. Although A.V. has not formally specified any assignments of error, she asserts that 1) the trial court erred in failing to dismiss the case and 2) that the evidence is insufficient to support a finding that I.B.W. is a child in need of care.

Discussion

Motion to Dismiss

Pursuant to La.Ch.Code art. 624(A), “[i]f a child is not released to the care of his parents, a hearing shall be held by the court within three days after the child’s removal or entry into custody.” That time is calculated as follows:

A. In computing a period of time allowed or prescribed by law or by order of court, the date of the act, event, or default after which the period begins to run is not to be included. The last day of the period is to be included, unless it is a legal holiday, in which event the period runs until the end of the next day which is not a legal holiday.
D. All Saturdays and Sundays are also considered as legal holidays.

La.Ch.Code art. 114.

According to the record, the instanter petition was signed on February 28, 2013, a Thursday. The application of La. Ch.Code art. 114 indicates that the third day following the child’s entry into custody would have been Tuesday, March 5. However, the continued custody hearing was not held until Wednesday, March 6.

We observe that the record contains references indicating that the delay was partly attributable to the recusal of one of the trial court judges. Further, La.Ch.Code art. 624(B) provides that, after notice to all parties and a showing of |sgood cause, the trial court may continue the continued custody hearing for up to three days “in accordance with the best interests of the child.” We also note that A.V. was provided with a full hearing on the continued custody of I.B.W., as required by La.Ch. Code art. 624. Finally, the State has indicated in its brief that,' if the matter were dismissed, the State would seek another instanter order. Thus, with respect to the facts of this particular case, we find that any error in holding the continued custody hearing on Wednesday, March 6, rather than Tuesday, March 5, requires no correction on appeal.

Insufficiency of Affidavit

A.V. also complains that there was insufficient evidence in the affidavit in support of the instanter order and insufficient evidence produced at the continued custody hearing to support a finding that I.B.W. was a child in need of care. Louisiana Children’s Code Article 626(A) states that “[t]he court may authorize continued custody of a child prior to adjudication if there are reasonable grounds to believe the child is in need of care and that continued custody is necessary for his safety and protection.” In State in the Interest of P.J., 47,550, pp. 10-11 (La.App. 2 Cir. 9/12/12), 104 So.3d 517, 522-23, the second circuit discussed the appellate review of juvenile matters, stating:

An appellate court cannot set aside a juvenile court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong. Allerton v. Broussard, 10-2071 (La.12/10/10), 50 So.3d 145; In re A.J.F., 00-0948 (La.6/30/00), 764 So.2d 47; State ex rel. J.B., 35,032 (La.App.2d Cir.5/9/01), 794 So.2d 899. Where there is conflicting 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 as those of the trial court. In re A.J.F., supra; Rosell v. ESCO, 549 So.2d 840 (La,1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). In order to reverse.a fact finder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does[4not exist for the finding, and if such a basis does exist, (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Allerton, supra; Stobart v. State, through DOTD, 617 So.2d 880 (La.1993); State ex rel. D.H., 04-2105 (La.App.1st Cir.2/11/05), 906 So.2d 554.

Pursuant to La.Ch.Code art. 606, allegations that a child is in need of care must include one or more of the following grounds, in relevant part:

(1) The child is the victim of abuse perpetrated, aided, or tolerated by the parent or caretaker, by a person who maintains an interpersonal dating or engagement relationship with the parent or caretaker, or by a person living in the same residence with the parent or caretaker as a spouse whether married or not, and his welfare is seriously endangered if he is left within the custody or control of that parent or caretaker.
(2) The child is a victim of neglect.

Abuse and neglect are defined in La.Ch. Code art. 603. “Abuse” is defined as “any one of the following acts which seriously endanger the physical, mental, or emotional health and safety of the child[.]” La.Ch. Code art. 603(1). As relevant here, those acts include “[t]he infliction, attempted infliction, or, as a result of inadequate supervision, the allowance of the infliction or attempted infliction of physical or mental injury upon the child by a parent or any other person.” Id. “Neglect” is defined, in relevant part, as “the refusal or unreasonable failure of a parent or caretaker to supply the child with necessary food, clothing, shelter, care, treatment, or counseling for any injury, illness, or condition of the child, as a result of which the child’s physical, mental, or emotional health and safety is substantially threatened or impaired.” La.Ch.Code art. 603(16).

Neglect also includes prenatal neglect. Id. “Prenatal neglect” is defined as “the unlawful use by a mother during pregnancy of á controlled dangerous substance, as defined by R.S. 40:961 et seq., which results in symptoms of withdrawal in the infant or the presence of a controlled substance in the infant’s |fibody.” La.Ch.Code art. 606(22).

Don Jones, the child protection investigator assigned to the case, testified that he received a report of dependency slightly over a week after I.B.W.’s birth. He testified that he investigated the report. According to Mr. Jones, A.V. already had two other children in State custody and she was not complying with her case plan. Part of that case plan required A.V. to attend substance abuse treatment. A letter from the Grant Addictive Disorders Clinic was submitted into evidence that indicated that A.V. had not been attending her group or individual sessions, that she had not remained abstinent from certain drugs, and that overall she had not maintained adequate progress. A.V. denied that she tested positive for non-prescription medication. However, there was testimony at the hearing that A.Y. tested positive for opiates or other narcotics on six occasions since August of 2012, the last being in early January of 2013. All of these positive test results occurred while she was pregnant with I.B.W.

Lori Bardwell, the child welfare supervisor, testified that, in addition to requiring that she receive substance abuse counseling, A.V.’s case plan also required that she receive domestic violence counseling, that she attend parenting classes, that she maintain independent stable housing, income, and that she pay Rchild support. According to Ms. Bardwell, A.V. had not fully complied with any aspect of her case plan.

A.V. also testified. She attributed her positive drug screens to the stress of her children being taken away. She also asserted that she was only taking prescription medication that was intended to help her stop using narcotics. She attributed her addiction to pain resulting from a car accident that occurred when she was eleven, approximately twelve years ago. A.V. also asserted that her home with her fian-cé and his parents was adequate and that she would be able to take care of I.B.W. if he was returned to her.

Our review of the evidence in the record indicates that the State offered sufficient evidence to support a finding that there were reasonable grounds to believe I.B.W. was in need of care and that continued custody was necessary for his safety and protection. “An appellate court cannot set aside a juvenile court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong.” State in the Interest of P.J., 104 So.3d at 522-23. Accordingly, we cannot say that the trial court was manifestly erroneous or clearly wrong in its determination that I.B.W. was a child in need of care. Thus, A.V.’s argument in this regard is without merit.

DECREE

For the foregoing reasons, we affirm the trial court’s judgment dated March 14, 2013. Costs of this appeal are assessed to the appellant, A.V.

AFFIRMED.

      . Initials are used to protect the confidentiality of the parties pursuant to La.Ch.Code art. 412.

      . La.Ch.Code art. 603(22) was amended by 2007 La. Acts 396, § 1, to include:
      exposure to chronic or severe use of alcohol or the unlawful use of any controlled dangerous substance, as defined by R.S. 40:961 et seq., or in a manner not lawfully prescribed, which results in symptoms of withdrawal in the newborn or the presence of a controlled substance or a metabolic thereof in his body, blood, urine, or meconium that is not the result of medical treatment, or observable and harmful effects in his physical appearance or functioning.
      However, the amendment states that it "shall not become effective unless and until sufficient funds are appropriated by the legislature for such purposes[.]”


author: SAUNDERS, Judge. CONERY, J.,

text:
    Auta B. HIGHSMITH, et ux v. Lynn Edward FORET, M.D.
    No. 13-441.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 30, 2013.

      John L. Hammons, Nelson & Hammons, Shreveport, LA, for Plaintiffs/Appellants, Auta B. Highsmith, Eunice Highsmith.
    J. Gregory Bergstedt, Fraiser, Wheeler & Bergstedt, Lake Charles, LA, for Defendant/Appellee, Lynn Edward Foret, M.D.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and JOHN E. CONERY, Judges.
   SAUNDERS, Judge.

11 This is a medical malpractice case wherein the medial review panel and the trial court found no breach of the standard of care by an orthopedic surgeon who attempted to repair a right low intertrochan-teric fracture on one of the plaintiffs. The surgery was unsuccessful and resulted in a non-union of the fracture, a known complication with this type of surgery.

The plaintiffs, due to only documentary evidence being submitted for the trial court to evaluate, contend that a de novo standard of review is applicable to this matter. We find no basis for this assertion and also find sufficient evidence in the record to support the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY:

On April 3, 2007, Auta Highsmith (Mr. Highsmith) fell in his yard and fractured his right upper femur/hip. He was transported to Lake Charles Memorial Hospital for evaluation. A diagnosis of hip fracture was made at that time. There was no orthopedic surgeon on call at Lake Charles Memorial, so Mr. Highsmith was transported to Christus St. Patrick Hospital in Lake Charles. There, after appropriate pre-operative confirmation of the original diagnosis, on April 5, 2007, Dr. Lynn E. Foret (Dr. Foret) performed the surgical repair of Mr. Highsmith’s fracture with an open reduction and internal fixation with a trochanteric fixation nail. Dr. Foret described the procedure as uneventful, and the post-operative radiographic studies that were conducted indicted proper alignment.

On April 12, 2007, Mr. Highsmith was discharged from the surgery floor and admitted to the rehabilitation unit on the same campus. Dr. Foret prescribed physical therapy for Mr. Highsmith to include weight bearing as tolerated. Thereafter, on April 14, 2007, Dr. Foret was re-consulted wherein he 12acknowledged that there was motion in the distal femur. He planned to use a L’Nard boot due to the amount of rotation.

According to Mr. Highsmith, he continued to have complications from the surgery such as pain and motion at the fracture site. Following his discharge from the rehabilitation unit, Mr. Highsmith was seen by Dr. Foret several times in May and June of 2007.

Mr. Highsmith relocated to Nevada in the summer of 2007. There, on August 14, 2007, he saw Dr. Michael Ravitch, an orthopedic surgeon. Dr. Ravitch noted that Mr. Highsmith had pain and a limp along with leg numbness, stiffness, and weakness. Radiographic studies done then indicated a non-union of the fracture.

Dr. Ravitch referred Mr. Highsmith to Dr. Roger Fontes, another orthopedic surgeon who specialized in fracture and nonunion care. Dr. Fontes described the fracture as a mal-oriented proximal fracture for which he attempted a surgical intervention known as an osteotomy. This procedure failed to stabilize the fracture site. Dr. Fontes suggested a different, more complex surgery, but Mr. Highsmith’s cardiologist concluded that he was not sufficiently stable from a cardiovascular standpoint to undergo the surgery. Therefore, Mr. Highsmith has a permanent non-union of the fracture site.

Mr. Highsmith and his wife, Eunice Hi-ghsmith (the Highsmiths) timely submitted their claims against Dr. Foret to a medical review panel. The panel issued an opinion dated February 22, 2010, finding that Dr. Foret had not breached the standard of care in his treatment of Mr. Highsmith. Thereafter, on May 21, 2010, the Hi-ghsmiths filed a petition for damages against Dr. Foret.

On April 17, 2012, a bench trial was held on the merits. Both parties agreed to submit evidence to the trial court through documentary evidence alone, without Rany live testimony being taken. The trial court, after taking the case under advisement, found that the Highsmiths failed to prove by a preponderance of the evidence that Dr. Foret breached the applicable standard of care. Judgment was rendered in Dr. Foret’s favor dismissing the Hi-ghsmiths’ claims. The Highsmiths appeal this judgment raising four specifications of error.

SPECIFICATIONS OF ERROR:

I. The Trial Court erroneously failed to even consider the expert testimony of Dr. Roger Fontes, the only treating physician to provide expert testimony in this matter.
II. The Trial Court failed to take into consideration the testimony of Dr. Gordon Mead, a member of the medical review panel, who provided deposition testimony confirming that the medical review panel failed to address certain critically important issues and concluded that Dr. Foret deviated from applicable medical standards resulting in the damage suffered by Mr. Highsmith.
III. The Trial Court erred in reaching three conclusions for which there was absolutely no evidentiary support from any medical expert:
A. Full weight bearing on an unstable fracture is the standard of care;
B. A lateral view of the fracture site post-operatively would not have caused the complication to “cease”; and,
C. Mr. Highsmith’s injuries would have occurred anyway because of his age.
IV. The Trial Court erroneously relied upon the medical review panel opinion even though the only panelist to testify, Dr. Gordon Mead, confirmed that the panel was incorrect because it failed to consider significant issues regarding Dr. Foret’s medical mismanagement.

DISCUSSION OF THE MERITS:

In each of their four specifications of error, the Highsmiths present arguments that all seek the same result, that this court reverse the trial court’s finding that they failed to prove, by a preponderance of the evidence, that Dr. |4Foret’s degree of care in treating Mr. Highsmith was substandard. Specifically, each specification of error is an argument that Dr. Foret’s care was substandard in either his failure to obtain a radiographic study with a lateral view of the reduction intraoperatively or in his instructions that Mr. Highsmith undergo weight bearing physical therapy. We will address each specification of error under this common heading, as the sole issue before us is whether the trial court was erroneous in its finding the Hi-ghsmiths’ failed to prove a breach of the applicable standard of care by Dr. Foret.

STANDARD OF REVIEW:

The Highsmiths contended both in brief and at oral arguments that the applicable standard of review is de novo in determining whether the trial court’s judgment was erroneous. They base this contention on the fact that all evidence submitted at trial was documentary, with no witness testifying live in the presence of the trial court. This court requested additional briefs specifically addressing this issue at oral arguments. After having reviewed the arguments made and said briefs, we find that the Highsmiths’ contention is without merit.

Our supreme court, in Virgil v. American Guarantee and Liability Insurance Co., 507 So.2d 825, 826 (La.1987) (quoting Canter v. Koehring Co., 288 So.2d 716, 724 (La.1973) (emphasis in Virgil)), stated:

The manifest error standard and its purpose were stated succinctly in Canter v. Koehring Co., 283 So.2d 716 (La.1973), as follows:
“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not | sbe disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this ivell-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.” (emphasis supplied)
Louisiana’s three-tiered court system allocates the fact finding function to the trial courts. Because of that allocation of function (as well as the trial court’s normal procedure of evaluating live witnesses), great deference is accorded to the trial court’s factual findings, both express and implicit, and reasonable evaluations of credibility and reasonable 'inferences of fact should not be disturbed on appellate review of the trial court’s judgment.

Our supreme court reiterated its view of “the proper allocation of trial and appellate functions between the respective courts” in Shephard ex. rel Shephard v. Scheeler, 96-1690, 96-1720, pp. 14-15 (La.10/21/97), 701 So.2d 1308, 1316-17 (footnotes omitted) when it opined:

The manifest error standard of review is well established and recognized in our jurisprudence. The rigid and strenuous application of manifest error review has served the judicial process well. A lesser standard, albeit when a case is submitted to the trial court solely upon a written record, unduly undermines the allocation of the fact finding function to the trial courts.
We recognize that a good and persuasive argument can be made to lessen the standard of review when evaluations and findings of fact are not based upon demeanor evidence. A review of the jurisprudence of our sister states who have addressed this issue reveals that the majority of states have held that great deference need pot be extended to the trial court when its findings of fact are based on depositions, affidavits, and other documentary evidence. Nevertheless, a minority of states adhere to the rule that even when. considering documentary evidence, an appellate court must find clear error to overrule the trial court’s findings of fact.
After carefully studying this issue, we find that the proper allocation of trial and appellate functions between the respective courts are better served by the heightened standard of manifest error review. Therefore we use this occasion to reaffirm our pronouncement in Virgil.

Rlt is clear that our supreme court has instructed that we are to apply the manifest error standard of review to factual findings made by the trial court, regardless of the absence of live testimony, in order to perform our proper function in Louisiana’s established court system. While the Highsmiths cited cases that were contrary to our supreme court’s mandate, those cases were either: (1) from a circuit different than this one (and based on cases that occurred prior to the clear instructions from our superior court) and, thus, not controlling; or (2) cases that occurred prior to our supreme court’s holding in Virgil, and, therefore, no longer good law. Accordingly, we will apply the manifest error standard of review where appropriate in this matter despite the lack of live testimony presented to the trial court.

BURDEN OF PROOF:

Louisiana Revised Statutes 9:2794 establishes that a plaintiff in a medical malpractice action has the burden to prove, by a preponderance of the evidence, the following:

(1) The- degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

17Given the applicable statute, the Hi-ghsmiths had the burden to establish the standard of care required of Dr. Foret, to prove that Dr. Foret failed to meet that established standard of care, and to prove that the injuries suffered by the Hi-ghsmiths was causally connected to Dr. Foret’s failure to meet the established standard of care. The trial court found that the Highsmiths did not prove by a preponderance of the evidence that Dr. Foret’s degree of care was substandard. Therefore, we must determine whether the record contains a reasonable basis for the trial court to reach this conclusion.

The following evidence was submitted to the trial court: Mr. Highsmith’s medical records, including radiographic imaging, and medical bills; the deposition testimony of Dr. Gordon Mead (an orthopedist and member of the medical review panel); the narrative report of Dr. Roger Fontes (an orthopedist that treated Mr. Highsmith months after the surgery performed by Dr. Foret); the narrative report of Dr. William Overdyke (an orthopedist who performed a review of Mr. Highsmith’s records and was an expert hired by the Highsmiths); and the opinion of the medical review panel.

LATERAL X-RAY:

The Trial court found that the Hi-ghsmiths failed to prove a breach of the standard of care by Dr. Foret based on the findings of the medical review panel. The medical review panel opinion stated:

The evidence supports the conclusion that the defendant, Dr. Lynn E. Foret, did adhere to the appropriate standard of care as detailed herein, and the damages complained of by [the Highsmiths] were not caused by the negligent [sic] or failure to adhere to appropriate standards of care by [Dr. Foret],

The opinion of the medical review panel went on to address the use of a distal screw to lock intramedullary devices in place. Dr. Foret elected not to use a distal screw in Mr. Highsmith’s surgery, In the opinion, the panel asserted that | sthere is no consensus that the failure to lock intramedullary devices is below the standard of care.

Next, the medical review panel found that Dr. Foret’s post-operative follow-up was appropriately done with serial radio-graphic studies, and there was discussion about the necessity of re-operation because of non-union. Finally, the panel asserted that non-union is a known complication of this surgery and that it was not caused by the neglect or failure to adhere to the appropriate standard of care by Dr. Foret.

The Highsmiths contend that the trial court gave far too much credence to the medical review panel’s opinion. They contend that the trial court failed to take into consideration the testimony of Dr. Mead which undermined the value of the medical review panel’s opinion.

The Highsmiths pointed to portions of Dr. Mead’s testimony in an attempt to bolster their contention that the medical review panel failed to address certain critically important issues. They point to Dr. Mead’s testimony wherein he stated that he would always obtain and look at radio-graphic studies of the fractured segments, laterally, to ensure proper alignment in-traoperatively and that failure to do so is beneath the standard of care.

In reviewing Dr. Mead’s testimony, we do find that Dr. Mead testified to such and further stated that there is no evidence that Dr. Foret actually obtained these lateral views. Unfortunately for the Hi-ghsmiths, there is also no evidence that Dr. Foret failed to order and observe such lateral radiographic studies during the surgery and that he merely failed to make those studies part of the permanent medical records. There is evidence in the record that this does occur at times in surgeries such as Mr. Highsmith’s in the form of the following testimony of Dr. Mead:

IflA I would always get an AP and lateral view in the operating room, okay? I would like to tell you I probably do 98 percent of the time, but there are times when whatever happens and I don’t get that documentation and then I don’t get it in the recovery room. Or I think I did it — I thought the technician got those permanents and it turns out they didn’t.”
Q In other words, they took the shot but' they didn’t make a permanent picture.
A I saw it, but there was not a permanent evidence of that.

It was the Highsmiths’ burden to prove that Dr. Foret neglected to view these radiographic studies, and there is no evidence in the record that Dr. Foret was ever asked whether he viewed any lateral radiographic studies during the surgery. We cannot say that the lack of any lateral radiographic studies performed intraoper-atively in the medical records necessitates a finding that Dr. Foret failed to do so.

Insofar as the Highsmiths contend that Dr. Mead’s view was different than his view expressed as a member of the medical review panel, we find no evidence that this is accurate. Dr. Mead stated in his written opinion, the following:

[I]t is impossible to tell whether the fracture was actually poorly reduced and fixed by Dr. Foret or whether the fracture had simply became more angulated over a period of time.... I, therefore, find insufficient evidence to make an opinion regarding Dr. Foret’s handling of this case.

This statement by Dr. Mead is important as it is directly conflicts with the narrative report of Dr. Fontes that is relied upon by the Highsmiths. The Hi-ghsmiths point out that according to Dr. Fontes, the lack of an adequate reduction or the lack of maintaining the reduction during the instrumentation portion of the surgery resulted in mal position of Mr. Highsmith’s fracture which was the major factor that contributed to his failed union.

Dr. Fontes’ statement that the lack of reduction contributed to the non-union may be accurate. However, as pointed out by Dr. Mead, it is not possible to [ 1ftdetermine with a reasonable degree of medical certainty whether Mr. Highsmith’s lack of reduction was due to substandard treatment by Dr. Foret or due to another factor, time.

The Highsmiths argue that Dr.’ Fontes’ opinion should be afforded greater weight, as he is a treating physician. However, Mr. Highsmith did not see Dr. Fontes until approximately four months after his surgery, and this amount of time, according to Dr. Mead, is enough for such an improper reduction to occur. Further, the radiographic studies that were done post-operatively indicated no such improper reduction, although no lateral radiographic study is indicated to have transpired. Accordingly, Dr. Fontes’ status as a “treating physician” in order for his testimony to be given greater weight has minimal relevance. Given that the Highsmiths have the burden to prove that this lack of reduction was caused by Dr. Foret’s inadequate surgery, one cannot say that a finding that they failed to carry this burden is unreasonable. As such, we uphold the trial court’s finding that the Highsmiths failed to prove that Dr. Foret’s failed to obtain and view a lateral radiographic study of Mr. Highsmith’s fracture intraoperatively to ensure proper reduction.

We note that Dr. Mead did testify that were he in Dr. Foret’s position in this litigation, he would have included some evidence, at least testimonially, that he intraoperatively observed a lateral radio-graphic study of Mr. Highsmith’s fracture. Dr. Foret’s submission did not include any such indication. While this court has sympathy for the Highsmiths on this issue, we are bound by our supreme court’s directive to give deference to the trial court’s reasonable finding of fact coupled with the burden of proof placed upon the Hi-ghsmiths.

U,PHYSICAL THERAPY:

The Highsmiths also argue that Dr. Foret’s inclusion of full weight bearing in his prescribed physical therapy was a breach of the standard of care, and the trial court’s failure to make this finding was in error. We disagree.

Our review of Mr. Highsmith’s medical records indicates that Dr. Foret ordered full weight bearing as tolerated. This is not a command by Dr. Foret that the therapist is to force Mr. Highsmith to endure full weight bearing no matter the circumstances. Thus, the Highsmiths contention that Dr. Foret ordered full weight bearing, and leaving off the key phrase, “as tolerated,” is quite significant.

When discussing the issue of ordering full weight bearing, as tolerated, in Dr. Mead’s deposition, the following exchange transpired:

Q: One of the biggest issues that has come up is the case concerns instructions concerning weight bearing. Did the panel review this issue?
A: Yes.
Q: And what is the general feeling on this patient — an eighty-one year old patent with the nature and extent of the injury that he had, with the surgery that he had, the hardware he had, concerning that portion of rehabilitation?
A: Okay. As far as I’m concerned, an eighty-one year old person is not going to be non-weight bearing on the broken hip. Okay? You have to rely on the fixation. They would have to stay in bed for six months or three months or whatever. If they’re going to get out of bed, they’re going to do some weight bearing on that leg. If they’re going to sit up, they actually — there are forces across that hip. So you can’t get away from stressing it. So my — I almost universally allow patients to weight bear as tolerated. That’s not entirely — that’s not a hundred percent. There are cases where I feel that there’s too much risk, and if the patient can’t mentally cooperate sufficiently, I’m going to keep them as minimally weight bearing as possible because I’m just worried that my fixation is not going to hold well enough.

While the Highsmiths submitted the contrary opinion of Dr. Overdyke wherein he disagreed with Dr. Mead, our function is not to replace the choice of 112the trial court to give credence to one expert over another. Rather, we are to ensure that the choice of the trial court is reasonable. Here, Dr. Mead’s testimony provides a reasonable basis for the trial court to find that full weight bearing as tolerated is the instruction generally given by orthopedists to therapists treating patients such as Mr. Highsmith. Therefore, we cannot say that the trial court was manifestly erroneous in finding that the Highsmiths failed to prove that Dr. Foret breached the standard of care in his prescribing full weight bearing as tolerated for postsurgical physical therapy.

OTHER ARGUMENTS RAISED BY THE HIGHSMITHS:

In brief, the Highsmiths make various arguments regarding statements made by the trial court in its reasons for judgment that they characterize as erroneous and entitling them to a reversal of the trial court’s judgment. It is well settled that reasons for judgment are not appealable, as an appeal is to address the written, final, appealable judgment. McFadden v. Import One, Inc., 10-952 (La.App. 3 Cir. 2/9/11), 56 So.3d 1212; LaRocca v. Bailey, 01-618 (La.App. 3 Cir. 11/7/01), 799 So.2d 1263; La.Code Civ.P. art.1918. Here, the trial court’s judgment was that the Hi-ghsmiths failed to prove that Dr. Foret breached the standard of care. Above, we observe adequate support in the record for the judgment reached by the trial court. As such, we will not address these arguments.

CONCLUSION:

Auta and Eunice Highsmith appeal the trial court’s judgment that they failed to prove that Dr. Lynn Foret’s care of Auta Highsmith was beneath the standard of care. They raise four specifications for error questioning two findings of fact by the trial court.

11sWe find a reasonable basis exists in the record for the trial court’s findings. Accordingly, we uphold its judgment. We assess all costs of these proceedings to Auta and Eunice Highsmith.

AFFIRMED.

CONERY, J.,

dissents and assigns written reasons.

|¶1 respectfully dissent. I would reverse the judgment of the trial court, enter judgment for the plaintiffs, and remand for a trial on damages.

Standard of Review

In Virgil v. American Guarantee and Liability Insurance Co., 507 So.2d 825 (La.1987), and Shephard v. Scheeler, 96-1690 (La.10/21/97), 701 So.2d 1308, our supreme court has held that even when a case is submitted to the trial judge for decision on record evidence only with no live testimony, we are nonetheless obligated to apply the manifest error standard when reviewing the case on appeal. When reviewing a summary judgment, likewise submitted on only record evidence with no live testimony, we are to use the less restrictive de novo standard. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730; Smitko v. Gulf South Shrimp, Inc., 11-2566 (La.7/2/12), 94 So.3d 750.

How do we reconcile the cases using the manifest error standard of review when reviewing cases submitted for trial on documents, affidavits, and depositions with those cases using the de novo standard when considering summary judgments using the same type of evidence? This seeming inconsistency can be explained by ^examining the rationale behind the rulings. A trial on the merits requires the trial judge to find the facts. The proper allocation of trial and appellate court functions requires deference to the fact finder. Summary judgments, on the other hand, can only be granted in cases where the material facts are not in dispute, hence no factual findings and no deference is required.

The larger question under the manifest error standard is how to decide whether the trial court was clearly wrong, how to apply the proper allocation of trial and appellate court functions. In Virgil and Shephard, our supreme court emphasized that even though a trial judge may have decided a case on a “cold record,” without live testimony that would allow the fact finder to observe demeanor, inflection, tone, and manner of testifying witnesses, appellate courts should none the less accord great deference to “the trial court’s factual findings, both express and implicit, and reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on appellate review of the trial court’s judgment.” Shephard, 701 So.2d at 1316. Immediately after this pronouncement of the standard of review in Shephard, the supreme court went on to find that the trial court in that case “clearly erred in finding that the accident was caused by an unreasonably dangerous puddle of standing water[.]” Id. The court reversed a finding of fact made by the trial court that it found was “clearly erroneous” based on review of all evidence of record. Clearly, great deference does not mean total deference.

In Alexander v. Pellerin Marble & Granite, 93-1698, p. 1 (La.1/14/94), 630 So.2d 706, 710, the supreme court re-affirmed Virgil and Shephard’s holding that the manifest error standard applied, even when documentary evidence is used, but then reversed a portion of the judgment of the hearing officer and appellate |3court, stating:

We find that the court of appeal did not err by applying the manifest error standard of review. Application of the manifest error standard of review does not however, mandate the affirmance of a lower court decision with respect to findings of fact. When an appellate court finds manifest error, the factual findings of the trier of fact may be reversed.

See also Magbee v. Federal Exp., 12-77 (La.App. 3 Cir. 12/12/12), 105 So.3d 1048, and Racca v. Acme Truck Lines, Inc., 12-1319 (La.App. 3 Cir. 6/12/13), 115 So.3d 1222 (both applying the manifest error standard, but finding that the workers’ compensation judge was clearly erroneous). Great deference does have its limitations. The appellate court can and must review the facts in fulfilling its purpose, role, and function.

Analysis of the Evidence

We must now analyze the factual findings made by the trial judge in this case in light of the jurisprudence. First of all, even though we must use the manifest error standard, we do not have to ascribe any weight to the trial court’s ruling concerning the credibility of witnesses based on the manner of their testifying, tone, demeanor, or any other like evaluation, since ah of the evidence in this case was submitted by affidavit, records, or depositions. Therefore, we need only evaluate the judge’s actual factual findings to determine whether those findings were “clearly wrong.” What are those findings and are they supported or contradicted by the record evidence in this case?

The trial court based its decision primarily on the findings of the medical review panel. That opinion was primarily directed at whether the failure to use a distal screw to lock a rod used to stabilize Mr. Highsmith’s femur fracture in place during surgery was a breach of the standard of care. Dr. Foret did not use a distal 1 ¿locking screw in this case. The medical review panel concluded that the use of a distal locking screw to help prevent movement at the fracture site when performing this type of surgery is the preferred practice but it was not a violation of the standard of care for Dr. Foret not to do so, in their opinion. No facts were put forth to support their conclusion, except to discuss in passing that not all orthopedic surgeons use a distal locking screw.

The real question at issue is whether proper alignment and adequate reduction of the fracture was achieved in this particular surgery. Movement is an indication of possible improper alignment of the bones and inadequate reduction. A distal locking screw was not used to hold the stabilizing rod in place in this case, which is all the more reason to make sure proper alignment and reduction was achieved to prevent movement and foster bone healing. To successfully accomplish this goal for a surgery of this type, the surgeon must use x-rays. The uncontradicted evidence from Dr. Mead, a member of the original medical review panel whose deposition and records were filed in evidence, was that both a frontal (AP) x-ray view and a side (lateral) x-ray view must be visualized during surgery. The standard of care requires that the surgeon must visualize proper alignment and reduction of the fracture by use of a lateral x-ray before closing. The record in this case is silent as to whether a lateral .view was taken and visualized by Dr. Foret during Mr. Highsmith’s surgery.

The majority relies heavily on the written report of Dr. Mead in concluding plaintiffs failed to prove that Dr. Foret violated the standard of care. The majority quotes from Dr. Mead’s report:

[I]t is impossible to tell whether the fracture was actually poorly reduced and fixed by Dr. Foret or whether the fracture had simply became more angulated over a period of time.... I, therefore, l.ffind insufficient evidence to make an opinion regarding Dr. Foret’s handling of this case.

Dr. Mead’s statement, however, fails to properly account for the uncontradicted evidence that the medical records are silent on the issue of whether Dr. Foret visualized a lateral view to insure proper alignment and reduction during surgery. He did not “listen to the sound of silence,” to quote from Simon and Garfunkel’s famous song. The trial judge and the majority were likewise “tone deaf’ to the “sound of silence ” in the record on this issue and would place on the plaintiffs the impossible burden of proving a negative.

Dr. Mead, however, did offer the following testimony that is especially pertinent to the issue:

Q. So, since there is no evidence of a lateral view, would you agree that if Dr. Foret failed to visualize the fracture with a lateral view intraop-eratively and post operatively that would be below the standard of care?
A. Yes.

Dr. Mead’s testimony on this issue is completely uncontradicted and must be accepted as true.

Even though Dr. Mead clearly testified that failure to visualize a lateral x-ray of the fracture during surgery was a violation of the standard of care and there was no evidence that a lateral x-ray was ordered or visualized by Dr. Foret during surgery, he then went on to testify that no evidence means that evidence was lacking as to whether Dr. Foret did or did not visualize a lateral x-ray. He gave the example that sometimes surgeons view the fracture during surgery using a c-arm fluoroscopy or moving x-ray technique. If the surgeon saw proper alignment and reduction at the fracture site while he was operating, then the radiologist need not actually take and develop a standard lateral x-ray film. Dr. Mead did say, however, |nthat he and everyone he knew of did take a lateral x-ray. Basically, his testimony was to the effect that it is possible that Dr. Foret did visualize a lateral view on fluoroscopy. Dr. Mead could not tell from the medical, hospital, and surgical records whether Dr. Foret did so in this particular case, as Dr. Foret made no operative notes of a lateral view of alignment and reduction, nor did not note that he visualized a lateral view during fluoroscopy.

The majority concludes that the plaintiffs did not prove that Dr. Foret failed to look at a lateral view. Since some surgeons arguably do look at fluoroscopy during surgery and do not record that fact in the record, the majority concluded that plaintiffs failed to sustain their burden of proof that Dr. Foret did not look at a lateral view during surgery.

Dr. Mead testified, however, that all pertinent findings during surgery must be recorded in the medical record. The evidence is uncontradicted that in a case like this, a lateral view must be obtained in order to insure proper alignment and reduction of the femur fracture, a very pertinent finding as this is the standard of care. Since the medical record is silent as to whether Dr. Foret ordered a lateral view, or that the radiologist did take a lateral view, or that Dr. Foret did visualize the proper alignment and reduction on fluoros-copy before closing the surgery, a prima facie case has been proven that Dr. Foret violated the standard of care.

Dr. Foret did not testify at trial, and his records, as well as the hospital and surgery records, are completely silent on that issue. If anything, his failure to testify would ordinarily raise a presumption that his testimony would have been detrimental to him. Since both parties stipulated that only records would be used in this trial with no live testimony, such a legal presumption cannot be applied in this case. We must, therefore, “listen to the sound of silence.” No notation means no |7lateral Anew was taken or visualized.

The circumstantial evidence in this case is overwhelming. There is no question that Mr. Highsmith had a non-union. Movement at the fracture site was detected by the physical therapist shortly after surgery. Mr. Highsmith continued to complain of severe pain. Yet, Dr. Foret, ignoring the findings and recommendations of the therapist and the complaints of Mr. Highsmith, continued to order full weight bearing on a femur that had not been properly aligned for healing. Dr. Foret did not order a lateral x-ray even after he examined the patient and personally noted movement at the fracture site fourteen days post-surgery. . His records and therapy records are clear and uncon-tradicted. There was undeniable evidence, of movement and a failed surgery within days of the surgery, while Mr. Highsmith was still in the hospital and the hospital rehab facility.

The records of Dr. Ravitch and Dr. Fontes, Mr. Highsmith’s treating orthopedic surgeons who saw him several months post-surgery, attest that Dr. Foret’s surgical and post-surgical care fell below the standard of care. Lateral x-rays taken by them several months after the surgery and reviewed by each of them showed there was a severe angulation noted at the fracture site that could easily have been seen during or shortly after surgery using a lateral x-ray. These treating physicians further testified that Dr. Foret’s failure to use a lateral x-ray was malpractice and was the cause of Mr. Highsmith’s continuing pain and disability.

Drs. Ravitch and Fontes verified that had a lateral x-ray view been obtained at the time of the surgery, Dr. Foret would have been able to determine that he had set the fractured femur at a severe angle, which eventually caused the broken ends of the bone to rub against each other. The frontal (or AP) x-ray taken would not have shown this poor alignment. According to Mr. Highsmith’s treating 1 ^physicians, Dr. Fontes and Dr. Ravitch, and the plaintiffs’ expert, Dr. Overdyke, the non-union caused additional destruction to Mr. Hi-ghsmith’s bones, as well as soft tissue damages and severe pain. It is uncontra-dicted that the physical therapist stated in his record shortly after surgery that in his professional judgment, full weight bearing, as ordered by Dr. Foret, was inappropriate due to external rotation of the leg and obvious motion at the fracture site. Even after he personally found on physical exam that there was movement at the fracture site within fourteen days of surgery, Dr. Foret nevertheless continued to order full weight bearing and still did not perform a lateral .x-ray. Dr. Foret’s orders taken directly from the physical therapy records confirm that Dr. Foret ordered Mr. Hi-ghsmith to “push to full weight bearing as soon as possible,” not “weight bearing as tolerated.”

It was at this point that the therapist pulled Mr. Highsmith’s son aside and expressed his opinion that full weight bearing was harmful to Mr. Highsmith and that he should not walk. Mr. Highsmith’s daughter then moved her father to Nevada, where- Mr. Highsmith consulted Dr. Ravitch and Dr. Fontes.

Dr. Ravitch is a highly credentialed board certified orthopedic surgeon. He noted that in his examination about four months post-surgery that Mr. Highsmith continued to have severe and intractable pain, numbness, stiffness, and weakness in his right leg. Mr. Highsmith had a noticeable limp, and Dr. Ravitch noted that Mr. Highsmith’s right leg was one inch shorter and was tender at the fracture site. Lateral x-rays showed a severe and obvious abnormality and non-union.

Dr. Ravitch referred Mr. Highsmith to Dr. Fontes, his partner, an orthopedic surgeon who specialized in treating non-unions. After his evaluation, Dr. Fontes confirmed that Mr. Highsmith was indeed suffering ' from “a mal-reduction of the proximal femur which was 30 degrees flexed on the lateral view.” He stated that 19the misalignment can be easily seen and diagnosed by use of a lateral view x-ray. Dr. Fontes agreed with the opinion of Dr. Mead that failure to obtain a lateral view by Dr. Foret would be a violation of the standard of care. Dr. Fontes also agreed with Dr. Ravitch in his conclusion that Dr. Foret had violated the standard of care by failing to visualize a lateral view of the fracture during surgery, and that Dr. Foret’s surgery and post-surgery care fell below the standard of care, resulting in the non-union, continuing pain, and the need for treatment. Dr. Fontes attempted further surgical intervention to try to place a distal locking screw in place to help prevent further motion, but due to the severe damage that had been caused by the non-union, the osteotomy procedure he performed was not successful.

According to Dr. Fontes, the only remaining option was a more complex “take down” surgery. Due to Mr. Highsmith’s poor health and advanced age of eighty-one years, he could not be cleared for the procedure from a cardiovascular standpoint. According to the medical records introduced, Mr. Highsmith continues to suffer severe pain from a permanent nonunion, has a permanent limp, and has a noticeable knot in his thigh.

The trial court ■ failed to consider Dr. Mead’s testimony on the critical issue of documenting x-ray findings in the record, and the necessity of visualizing a lateral view and recording that finding in the record. He also failed to consider the testimony of the treating physicians, Dr. Ravitch and, especially Dr. Fontes on this issue. It is well settled that the testimony of a treating physician is entitled to greater weight than that of an examining physician or an expert who reviews records only. Wilczewski v. Brookshire Grocery Store, 08-718 (La.App. 3 Cir. 1/28/09), 2 So.3d 1214; Johnson v. NATCO, 94-1286 (La.App. 3 Cir. 3/1/95), 651 So.2d 494.

|inHere, the trial judge relied on the opinion of the medical review panel, which addressed only the question of whether a distal locking screw should have been used to prevent movement, not whether a lateral x-ray should' have been taken to determine proper alignment and reduction.

Rather, the medical malpractice' in this case is best summarized in the report from Dr. William Overdyke, a board certified orthopedist, nationally recognized as a joint replacement specialist. Dr. Overdyke reviewed all of Mr. Highsmith’s records and x-rays and concluded that Dr. Foret clearly committed medical malpractice. He stated:

In my professional opinion, after reviewing the course of treatment and outcome, acceptable medical standard has been breached. Inappropriate use of the internal fixation and in addition, after admitting that there was gross motion at the fracture site, electing not to address the problem but to continually push the patient to weight bear on a fracture that should not be stressed. Again, to make it clear, I believe that the medical care was below an acceptable standard, and I believe that any panel review would agree with the side of the plaintiff.

Dr. Overdyke further opined that even after Dr. Foret became aware of a possible non-union and movement at the fracture site, his post-surgical care continued to be beneath the standard of care. He summarized the medical records in this case:

The summary of the treatment was that Mr. Highsmith sustained a femur fracture on April 3, 2007. He underwent internal fixation with a TFN internal fixation device placed by Dr. Lynn Foret on 4/5/07. Following the internal fixation, the patient remained in acute care for several days and he was discharged on 4/12 to rehab. On 4/14, it was noticed that there was motion at the fracture site. Even following this information, Dr. Foret continued to try to press to full weight bearing.
On 4/16, the right lower extremity was found to be externally rotated. He was placed in a brace to decrease stress motion. In orders obtained from the chart dated 4/27, a physical therapist wrote in their notes (under St. Patrick page 452) that in their professional judgment, they didn’t think it was appropriate to push to full weight bearing. Orders taken verbally in the hospital on 4/24, 26, and 27, say push to full weight bearing as soon as possible. This is in the face of an x-ray that |nwas done on 4/24 that showed apparent complete loss of internal fixation and comminution at the fracture site. An additional note on 4/25, the physical therapist noted that the son was taken aside apparently in private conversation and was told it was not appropriate for the patient to ambulate in light of the x-ray on 4/24. I understand from your inquiry that the patient was moved to Nevada and the non-union was, hopefully, appropriately treated.

The trial judge was “clearly erroneous” and committed “manifest error” in failing to properly weigh and consider the evidence in this case. Shephard, 701 So.2d 1308; Alexander, 630 So.2d 706.

Conclusion

In summary, the overwhelming weight of the evidence clearly demonstrates that Dr. Foret’s surgery resulted in a nonunion at the fracture site, which he neglected to recognize based on his failure to order and review a lateral x-ray during and post-surgery. His post-surgical care, even after he became aware of the nonunion and movement at the fracture site, fell below the standard of care. His negligence was clearly the proximate cause of Mr. Highsmith’s continued injuries, damages, and disability.

In the interest of justice, this case must be reversed and judgment must be rendered in favor of the plaintiffs.

Damages

The record is sparse on the issue of damages. Mr. and Mrs. Highsmith did not testify. The parties stipulated to the amount of medical bills incurred due to the alleged malpractice. Other than the medical records and bills, there is no other evidence in the record from which this court could perform a de novo review and properly assess damages. I would remand this case to the trial court for proper consideration of the issue of damages consistent with this opinion.